Idaho Administrative Code — Water Resources, Department of

IDAPA 37 Water Resources, Department of

37.03.03 Rules and Minimum Standards for the Construction and Use of Injection Wells

IDAPA 37.03.03.000 Legal Authority

Sections 42-3903A, and 42-3913 through 42-3915, Idaho Code.(7-1-25)

IDAPA 37.03.03.001 Scope

01.Scope.

These rules establish minimum standards and criteria for construction and abandonment of Class V deep and shallow injection wells in the state of Idaho, except Indian lands, and the injection of fluids to such wells. The construction and use of Class I, III, IV, or VI injection wells are prohibited by these rules.(7-1-25)

02.Rule Coverage. In the event that a portion of these rules is less stringent than the minimum requirements for injection wells as established by Federal regulations (40 CFR Parts 141, 142, 144, 145, and 146), the correlative Federal requirement will be used to regulate the injection well.(7-1-25)

IDAPA 37.03.03.002 (Reserved)

IDAPA 37.03.03.010 Definitions

01.Agricultural Runoff Waste. Excess surface water from agricultural fields generated during any agricultural operation, including runoff of irrigation tail water, as well as natural drainage resulting from precipitation, snowmelt, and floodwaters.(7-1-25)

02.Applicant. Any owner or operator submitting an application for permit to construct, modify or maintain an injection well to the Director.(7-1-25)

03.Application. The standard Department forms for applying for a permit, including any additions, revisions or modifications to the forms.(3-18-22)

04.Aquifer. Any geologic formation(s) that yields water to a well in sufficient quantities to make the production of water from the formation feasible for beneficial use.(7-1-25)

05.Beneficial Use. One (1) or more of the recognized beneficial uses of water including but not limited to, domestic, municipal, irrigation, hydropower generation, industrial, commercial, recreation, aquifer recharge and storage, stockwatering and fish propagation.(7-1-25)

06.Best Management Practice (BMP). A practice or combination of practices that are more effective than other techniques at preventing or reducing contamination of ground water and surface water by injection well operation.(3-18-22)

07.Board. The Idaho Water Resource Board.(7-1-25)

08.Casing. The permanent conduit installed in a well to provide physical stabilization, prevent caving or collapse of the borehole, maintain the well opening and serve as a solid inner barrier to allow for the installation of an annular seal.(7-1-25)

09.Cesspool. An injection well that receives untreated sanitary waste containing human excreta, and that sometimes has an open bottom and /or perforated sides.(7-1-25)

10.Coliform Bacteria. All of the aerobic and facultative anaerobic, gram-negative, non-spore forming, rod-shaped bacteria that either ferment lactose broth with gas formation within forty-eight (48) hours at thirty-five degrees Celsius (35C), or produce a dark colony with a metallic sheen within twenty-four (24) hours on an Endo-type medium containing lactose.(3-18-22)

11.Confining Bed. A body of impermeable or distinctly less permeable material stratigraphically adjacent to one (1) or more aquifers.(3-18-22)

12.Construct. To create a new injection well or to convert any structure into an injection well.

13.Contaminant. Any physical, chemical, biological, or radiological substance or matter.(3-18-22)

14.Contamination. The introduction into the natural ground water of any physical, chemical, biological, or radioactive material that may:(3-18-22)

a.Cause a violation of standards found in IDAPA 58.01.11, “Ground Water Quality Rule,” or IDAPA 58.01.08, “Idaho Rules for Public Drinking Water Systems” Section 050, whichever is more stringent; or(7-1-25)

b.Adversely affect the health of the public; or(3-18-22)

c.Adversely affect a designated or beneficial use of the State’s ground water. Contamination includes the introduction of heated or cooled water into the subsurface that will alter the ground water temperature and render the local ground water less suitable for beneficial use.(3-18-22)

15.Conventional Mine. An open pit or underground excavation for the production of minerals.

16.Decommission (Abandon). Any well that has been permanently removed from service and filled or plugged in accordance with these rules so as to meet the intent of these rules. A properly decommissioned well will not:(7-1-25)

a.Produce or accept fluids;(7-1-25)

b.Serve as a conduit for the movement of contaminants inside or outside the well casing; or (7-1-25)

c.Allow the movement of surface or ground water into unsaturated zones, into another aquifer, or between aquifers.(7-1-25)

17.DEQ. The Idaho Department of Environmental Quality.(3-18-22)

18.Deep Injection Well. An injection well that is more than eighteen (18) feet in vertical depth below land surface.(7-1-25)

19.Department. The Idaho Department of Water Resources.(3-18-22)

20.Director. The Director of the Idaho Department of Water Resources.(3-18-22)

21.Disposal Well. A well used for the disposal of waste into a subsurface stratum.(3-18-22)

22.Draft Permit. A prepared document indicating the Director's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a “permit.” Permit conditions, compliance schedules, and monitoring requirements are typically included in a “draft permit”. A notice of intent to terminate a permit, and a notice of intent to deny a permit are types of “draft permits.” A denial of a request for modification, revocation and reissuance, or termination is not a “draft permit.”(3-18-22)

23.Drilling Fluid. A heavy suspension used in drilling an “injection well,” introduced down the drill pipe and through the drill bit.(7-1-25)

24.Endangerment. An act that threatens contamination of a USDW aquifer which supplies or can reasonably be expected to supply drinking water to any domestic or public water system where the contamination may result in not complying with Ground Water Quality Standards or otherwise adversely affect human health.

25.Exempted Aquifer. An “aquifer” or its portion that meets the criteria in the definition of USDW but which has been recategorized as “other” according to the procedures in IDAPA 58.01.11 “Ground Water Quality Rule”.(3-18-22)

26.Experimental Technology. A technology which has not been proven feasible under the conditions in which it is being tested.(3-18-22)

27.Fluid. Any material or substance which flows or moves, whether in a semisolid, liquid, sludge, gaseous or any other form or state.(3-18-22)

28.Ground Water. Water below the land surface in a zone of saturation.(7-1-25)

29.Ground Water Quality Standards. Standards found in IDAPA 58.01.11, “Ground Water Quality Rule,” Section 200 or IDAPA 58.01.08, “Idaho Rules for Public Drinking Water Systems” Section 050, whichever is more stringent.(7-1-25)

30.Hazardous Waste. Any substance defined by IDAPA 58.01.05, “Rules and Standards for Hazardous Waste.”(3-18-22)

31.Indian Lands. “Indian Country” as defined in 18 U.S.C. 1151. That section defines Indian Country as:(3-18-22)

a.All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation;(3-18-22)

b.All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and (3-18-22)

c.All Indian allotments, the Indian titles to which have not been extinguished, including rights-ofway running through the same.(3-18-22)

32.Individual Subsurface Sewage Disposal System. For the purpose of these rules, any standard or alternative disposal system that injects sanitary waste from single family domestic septic systems, or non-domestic septic systems which are used solely for the disposal of sanitary waste and have the capacity to serve fewer than twenty (20) people a day.(7-1-25)

33.Industrial Wastewater. All wastewater, treated or untreated, that is not defined as municipal wastewater.(7-1-25)

34.Improved Sinkhole. A naturally occurring crevice found in geologic settings that have been modified by man for the purpose of directing and emplacing fluids into the subsurface.(7-1-25)

35.Injection. The subsurface emplacement of fluids through an injection well.(3-18-22)

36.Injection Well. Any feature that is operated to allow injection that also meets at least one (1) of the following criteria:(7-1-25)

a.A bored, or driven shaft whose depth is greater than the largest surface dimension;(3-18-22)

b.A dug hole whose depth is greater than the largest surface dimension;(3-18-22)

c.An improved sinkhole; or(3-18-22)

d.A subsurface fluid distribution system.(3-18-22)

37.Large Capacity Cesspools. Any cesspool used by a multiple dwelling, community, or regional system for the disposal of sanitary wastes (for example: a duplex or an apartment building) or any cesspool used by or intended to be used by twenty (20) or more people per day (for example: a rest stop, campground, restaurant or church).(7-1-25)

38.Modify. To alter the construction of an injection well, but does not include cleaning or redrilling operations which neither deepen nor increase the dimensions of the well.(3-18-22)

39.Motor Vehicle Waste Disposal Wells. Injection wells that receive or have received fluids from vehicle repair or maintenance activities, such as an auto body repair shop, automotive repair shop, new and used car dealership, specialty repair shop (transmission and muffler repair shop), or any facility that does any vehicular repair work.(3-18-22)

40.Municipal Wastewater. Wastewater containing sewage and associated solids, whether treated or untreated. Municipal wastewater, also known as domestic wastewater, may contain industrial wastewater.(7-1-25)

41.Open-Loop Heat Pump Return Wells. Injection wells that receive surface water or ground water that has been passed through a heat exchange system for cooling or heating purposes.(3-18-22)

42.Owner or Operator. The owner or operator of any facility or activity subject to regulation under these Rules.(7-1-25)

43.Permit. An authorization, license, or equivalent control document issued by the Department.

44.Point of Beneficial Use. The top or surface of a USDW, directly below an injection well, where water is available for a beneficial use.(3-18-22)

45.Point of Diversion for Beneficial Use. Location of a producing well or spring where ground water is taken under control and diverted for a beneficial use.(7-1-25)

46.Point of Injection. The last accessible sampling point prior to waste being released into the subsurface environment through an injection well. For example, the point of injection for a Class V septic system might be the distribution box. For a drywell, it is likely to be the well bore itself.(3-18-22)

47.Radioactive Material. Any material, solid, liquid or gas that emits radiation spontaneously.

Radioactive geologic materials occurring in their natural state are not included.(7-1-25)

48.Radioactive Waste. Any fluid that contains radioactive material in concentrations that exceed those listed in 10 CFR part 20, appendix B, table II, column 2.(7-1-25)

49.Recycled Water. Water treated by a wastewater treatment system and used according to these rules and IDAPA 58.01.17, “Recycled Water Rules.”(7-1-25)

50.Septic System. An injection well that is used to inject sanitary waste below the surface. A septic system is typically comprised of a septic tank and subsurface fluid distribution system or disposal system. (3-18-22)

51.Shallow Injection Well. An injection well that is less than or equal to eighteen (18) feet in vertical depth below land surface.(7-1-25)

52.Subsidence. The lowering of the natural land surface in response to: Earth movements; lowering of fluid pressure; removal of underlying supporting material by mining or solution of solids, either artificially or from natural causes; compaction due to wetting; oxidation of organic matter in soils; or added load on the land surface. 53.

Subsurface Fluid Distribution System. An assemblage of perforated pipes, drain tiles, or other similar mechanisms intended to distribute fluids below the surface of the ground.(3-18-22)

54.UIC. The Underground Injection Control program under Part C of the Safe Drinking Water Act, including an “approved State program.”(3-18-22)

55.Underground Source of Drinking Water (USDW). An aquifer or its portion that:(7-1-25)

a.Either supplies any public water system, contains a sufficient quantity of ground water to supply a public water system, or currently supplies drinking water for human consumption; and(7-1-25)

b.Contains fewer than ten thousand (10,000) mg/l total dissolved solids and is not an exempted aquifer.(7-1-25)

56.Unreasonable Contamination. Endangerment of a USDW or the health of persons or other beneficial uses by injection. See “endangerment.”(3-18-22)

57.Wastewater. Combination of liquid or water and pollutants from activities and processes occurring in dwellings, commercial buildings, industrial plants, institutions, and other establishments, together with any ground water, surface water, and storm water that may be present; liquid or water that is chemically, biologically, physically or rationally identifiable as containing blackwater, gray water, or commercial or industrial pollutants; and sewage.

IDAPA 37.03.03.011 (Reserved)

IDAPA 37.03.03.020 Classification of Injection Wells

01.Classification of Injection Wells.

For the purposes of these rules, injection wells are classified as follows:(3-18-22)

a.Class I:(3-18-22)

i.Wells used by generators of hazardous waste or owners or operators of hazardous waste management facilities to inject hazardous waste beneath the lowermost formation containing, within one-quarter (1/ 4) mile of the well bore, an underground source of drinking water.(3-18-22)

ii.Other industrial and municipal disposal wells which inject fluids beneath the lowermost formation containing, within one-quarter (1/4) mile of the well bore, an underground source of drinking water.(3-18-22)

iii.Radioactive waste disposal wells which inject fluids below the lowermost formation containing an underground source of drinking water within one-quarter (1/4) mile of the well bore.(3-18-22)

b.Class II. Wells used to inject fluids:(3-18-22)

i.Which are brought to the surface in connection with natural gas storage operations, or conventional oil or natural gas production and may be commingled with waste waters from gas plants, dehydration stations, or compressor stations which are an integral part of production operations, unless those waters are classified as a hazardous waste at the time of injection.(3-18-22)

ii.For enhanced recovery of oil or natural gas; and(3-18-22)

iii.For storage of hydrocarbons which are liquid at standard temperature and pressure.(3-18-22)

c.Class III. Wells used to inject fluids for extraction of minerals including:(3-18-22)

i.Mining of sulfur by the Frasch process;(3-18-22)

ii.In situ production of uranium or other metals; this category includes only in-situ production from ore bodies which have not been conventionally mined. Solution mining of conventional mines such as stopes leaching is included in Class V.(3-18-22)

iii.Solution mining of salts or potash.(3-18-22)

d.Class IV:(3-18-22)

i.Wells used by generators of hazardous waste or of radioactive waste, by owners or operators of hazardous waste management facilities, or by owners or operators of radioactive waste disposal sites to dispose of hazardous waste or radioactive waste into or above a formation which within one-quarter (1/4) mile of the well contains an underground source of drinking water.(7-1-25)

ii.Wells used by generators of hazardous waste or owners or operators of hazardous waste management facilities to dispose of hazardous waste, which cannot be classified under Subparagraphs 020.01.a.i or 020.01.d.i. of this rule (e.g., wells used to dispose of hazardous waste into or above a formation which contains an aquifer which has been exempted pursuant to Section 025 of these rules).(7-1-25)

e.Class V -- All injection wells not included in Classes I, II, III, IV, or VI.(3-18-22)

f.Class VI.(3-18-22)

i.Wells that are not experimental in nature that are used for geologic sequestration of carbon dioxide beneath the lowermost formation containing a USDW; or(3-18-22)

ii.Wells used for geologic sequestration of carbon dioxide that have been granted a waiver of the injection depth requirements pursuant to requirements at 40 CFR Section 146.95; or(3-18-22)

iii.Wells used for geologic sequestration of carbon dioxide that have received an expansion to the areal extent of an existing Class II enhanced oil recovery or enhanced gas recovery aquifer exemption pursuant to Section 025 of these rules.(3-18-22)

02.Subclassification. Class V wells are subclassified as follows:(3-18-22) a.5A5-Electric Power Generation.(3-18-22) b.5A6-Geothermal Heat.(3-18-22) c.5A7-Heat Pump Return.(3-18-22) d.5A8-Aquaculture Return Flow.(3-18-22) e.5A19-Cooling Water Return.(3-18-22) f.5B22-Saline Water Intrusion Barrier.(3-18-22) g.5D2-Storm Runoff.(3-18-22) h.5D3-Improved Sinkholes.(3-18-22) i.5D4-Industrial Storm Runoff.(3-18-22) j.5F1-Agricultural Runoff Waste k.5G30-Special Drainage Water.(3-18-22) l.5N24 -Radioactive Waste Disposal m.5R21-Aquifer Recharge.(3-18-22) n.5S23-Subsidence Control.(3-18-22) o.5W9-Untreated Sewage p.5W10- Large Capacity Cesspools q.5W11-Septic Systems (General).(3-18-22) r.5W12-Waste Water Treatment Plant Effluent.(3-18-22) s.5W20-Industrial Process Water.(3-18-22) t.5W31-Septic Systems (Well Disposal).(3-18-22) u.5W32-Septic System (Drainfield).(3-18-22) v.5X13-Mine Tailings Backfill.(3-18-22) w.5X14-Solution Mining.(3-18-22) x.5X15-In-Situ Fossil Fuel Recovery.(3-18-22) y.5X16-Spent Brine Return Flow.(3-18-22) z.5X25-Experimental Technology.(3-18-22) aa.5X26-Aquifer Remediation.(3-18-22) bb.5X27-Other Wells.(3-18-22) cc.5X28-Motor Vehicle Waste Disposal Wells dd.5X29-Abandoned Water Wells.(3-18-22)

The construction of wells in this subclass is currently prohibited in Idaho.

The construction and operation of wells in these subclasses is currently prohibited in Idaho.

IDAPA 37.03.03.021 (Reserved)

IDAPA 37.03.03.025 Authorizations, Prohibitions and Exemptions

01.Authorizations. Const ruction and use of Class V deep injection wells may be authorized by permit as approved by the Director in accordance with these rules and the “Well Construction Standards Rules” found in IDAPA 37.03.09 which are authorized under Section 42-238, Idaho Code.(7-1-25)

02.Prohibitions.(3-18-22)

a.These rules prohibit the permitting, construction, or use of any Class I, III, IV, or VI injection well.

b.No owner or operator shall construct, operate, maintain, convert, plug, abandon, or conduct any other injection activity in a manner that allows or causes the movement of fluid containing any contaminant into underground sources of drinking water, if the presence of that contaminant may cause a violation of any primary or secondary drinking water regulation, under IDAPA 58.01.11, “Ground Water Quality Rule,” Section 200 or may otherwise adversely affect the health of persons. The applicant for a permit has the burden of showing that the injection of any fluid does not present an imminent and substantial endangerment to the health of persons.(7-1-25)

c.Notwithstanding any other provision of this section, the Director may take emergency action upon receipt of information that a contaminant which is present in or likely to enter a public water system or a USDW water may present an imminent and substantial endangerment to the health of persons.(7-1-25)

d.Large capacity cesspools, motor vehicle waste disposal wells, radioactive waste disposal wells, and untreated sewage disposal wells are prohibited. All prohibited wells described in this section must be decommissioned in accordance with these rules.(7-1-25)

e.Construction of new Subclass 5F1 - Agricultural Runoff Waste injection wells is prohibited.

f.These rules do not prohibit the injection of contaminated ground water into the same formation from which it was drawn provided the contaminated ground water is treated and if such injection is approved by EPA, pursuant to provisions for cleanup of releases under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601–9657, or pursuant to requirements and provisions under the Resource Conservation and Recovery Act, 42 U.S.C. 6901 through 6987.

03.Exemptions.(3-18-22)

a.Construction and use of Class V shallow injection wells are authorized by these rules without permit provided that:(7-1-25)

i.Required inventory information is submitted to the Director in accordance with these rules.

ii.Use of a shallow injection well shall not result in injection of recycled water derived from municipal of industrial sources.(7-1-25)

iii.Use of a shallow injection well shall not result in unreasonable contamination of a USDW or cause a violation of Ground Water Quality Standards that would affect a beneficial use.(7-1-25)

b.Individual subsurface sewage disposal system wells are exempt from these Rules but subject to the permitting and fee requirements of IDAPA 58.01.03 “Individual/Subsurface Sewage Disposal Rules,” Title 39, Chapter 1 and Title 39, Chapter 36, Idaho Code.(7-1-25)

c.Mine tailings backfill (5X13) wells are authorized by rule as part of mining operations. They are therefore exempt from permitting requirements of these rules provided that their use is limited to the injection of mine tailings only. The use of any 5X13 well(s) shall not result in ground water quality standards at points of diversion for beneficial use that exeed or otherwise affect a beneficial use. Should ground water quality standards be exceeded or beneficial uses be affected, the Director may order the wells to be put under the permit requirements of these rules, or the wells may be required to be remediated or closed. As a condition of their use, the Director may require the construction and sampling of monitoring wells by the owner/operator. 5X13 wells are subject to the inventory requirements described in these Rules.(7-1-25)

04.Variance of Methods. The Director may approve the use of a different testing method or technology if it is no less protective of human health and the environment, will not allow the migration of injected fluids into a USDW, meets the intent of the rule, and yields information or data consistent with the original method or technology required. A request for review by the Director must be submitted in writing by the applicant, permit holder, or operator and be included with all pertinent information necessary for the Director to evaluate the proposed testing method or technology.(7-1-25)

IDAPA 37.03.03.026 (Reserved)

IDAPA 37.03.03.030 Class V Shallow Injection Well Requirements

01.Authorization.

All owners or operators of shallow Class V injection wells, including improved sinkholes used for aquifer recharge, that dispose of nonhazardous and nonradioactive wastes are required to submit a Shallow Injection Well Inventory Form to the Department no later than thirty (30) days prior to commencement of construction for each new well or no later than thirty (30) days after the discovery of an existing injection well that has not previously been inventoried with the Department. (7-1-25)

02.Inventory Fees. For shallow injection wells constructed after July 1, 1997, the Shallow Injection Well Inventory Form shall be accompanied by a fee as specified in Section 42-3905(2), Idaho Code, payable to the Department of Water Resources. State or local government entities are exempt from filing fees for shallow injection wells associated with highway and street construction and maintenance.(7-1-25)

03.Decommission. Owners or operators of shallow injection wells must notify the Director not less than thirty (30) days prior to permanent decommissioning of any shallow injection well. Decommissioning must be accomplished in accordance with procedures approved by the Director.(7-1-25)

04.Inter-Agency Cooperation. The Department may seek the assistance of other state or local government agencies or entities, including cities, counties, health districts, and highway districts to inventory, monitor, and inspect shallow injection wells. Assistance is to be negotiated through a memorandum of understanding between the Department and the state or local entity subject to the Director’s approval.(7-1-25)

05.Cessation of Injection Well Activity. The Director will require immediate cessation of any Class V shallow injection well activity that causes or may cause unreasonable contamination of a USDW or a violation of ground water quality standards.(7-1-25)

IDAPA 37.03.03.031 (Reserved)

IDAPA 37.03.03.035 Class V Injection Well Requirements

01.Permit Required for Class V Deep Injection Wells. No person shall construct, modify, maintain, or use a Class V deep injection well unless a permit has been issued by the Director. An application for permit must be completed and filed with the director on a form approved by the department accompanied by a filing fee as specified in Section 42-3905(1), Idaho Code. Applications proposing to inject recycled water derived from municipal or industrial wastewater sources must also adhere to all applicable IDEQ rules and permitting requirements. (7-1-25)

02.Permit Requirements for Class V Shallow Injection Wells. No person shall construct, modify, maintain, or use a Class V shallow injection well to inject recycled water derived from municipal or industrial wastewater sources unless a permit has been issued by the Director. An application for permit must be completed and filed with the director on a form approved by the department accompanied by a filing fee as specified in Section 42- 3905(1), Idaho Code. An application for permit may be required for the construction, modification, or use of all other shallow injection wells if the Director determines that the injection could result in unreasonable contamination of a USDW or cause a violation of Ground Water Quality Standards that would affect a beneficial use. Applications proposing to inject recycled water derived from municipal or industrial wastewater sources must also adhere to all applicable IDEQ rules and permitting requirements.(7-1-25)

03.Application Information Required. An applicant must submit the following information to the Director for all injection wells to be authorized by permit, unless the Director determines that it is not needed in whole or in part, and issues a written waiver to the applicant:(7-1-25)

a.Facility name and location;(7-1-25)

b.Name, address and phone number of the well operator;(7-1-25)

c.Class, subclass and function of the injection well (see Section 020);(7-1-25)

d.Latitude/longitude or legal description of the well location to the nearest ten (10) acre tract;

e.Ownership of the well;(7-1-25)

f.County in which the injection well is located;(7-1-25)

g.Construction information for the well;(7-1-25)

h.Describe the quality, composition, and quantity of the injected fluids;(7-1-25)

i.Status of the well;(7-1-25)

j.A topographic map or aerial photograph extending one (1) mile beyond property boundaries, depicting:(7-1-25)

i.Location of the injection well and associated facilities described in the application;(7-1-25)

ii.Locations of other injection wells;(7-1-25)

iii.Approximate drainage area, if applicable;(7-1-25)

iv.Hazardous waste facilities, if applicable;(7-1-25)

v.All wells used to withdraw drinking water;(7-1-25)

vi.All other wells, springs and surface waters.(7-1-25)

k.Distance and direction to nearest domestic well;(7-1-25)

l.Depth to ground water; and(7-1-25)

m.Alternative methods of waste disposal.(7-1-25)

04.Additional Information. The Director may require an applicant to submit additional information to demonstrate that the proposed or existing injection well will not endanger a USDW. The Director will not complete the processing of an application for which additional information has been requested until such time as the additional information is supplied. The Director may return any incomplete application and will not process such application until such time as the application is received in complete form. Additional information may include, but is not limited to the following items:(7-1-25)

a.A topographic map showing locations of the following within a two (2) mile radius of the injection well:(7-1-25)

i.All wells producing water;(7-1-25)

ii.All exploratory and test wells;(7-1-25)

iii.All other injection wells;(7-1-25)

iv.Surface waters (including man-made impoundments, canals and ditches);(7-1-25)

v.Mines and quarries;(7-1-25)

vi.Residences;(7-1-25)

vii.Roads;(7-1-25) viii.Bedrock outcrops; and(7-1-25)

ix.Faults and fractures.(7-1-25)

b.Additional maps or aerial photographs of suitable scale to accurately depict the following: (7-1-25)

i.Location and surface elevation of the injection well described in this permit;(7-1-25)

ii.Location and identification of all facilities within the property boundaries;(7-1-25)

iii.Locations of all wells penetrating the proposed injection zone or within a one-quarter (1/4) mile radius of the injection well;(7-1-25)

iv.Maps and cross sections depicting all underground sources of drinking water to include vertical and lateral limits within a one-quarter (1/4) mile radius of the injection well, their position relative to the injection zone and the direction of water movement: local geologic structures; regional geologic setting.(7-1-25)

c.A comprehensive report of the following information:(7-1-25)

i.A tabulation of all wells penetrating the proposed injection zone, listing owner, lease holder and operator; well identification (permit) number; size, weight, depth and cementing data for all strings of casing;

ii.Description of the quality, composition, and quantity of fluids to be injected;(7-1-25)

iii. Description of geologic, hydrogeologic, and geochemical conditions present in the injection zone and confining beds; methods for determining geochemical conditions must be approved by the Director;(7-1-25)

iv.Engineering data for the proposed injection well;(7-1-25)

v.Proposed operating pressure;(7-1-25)

vi.A detailed evaluation of alternative disposal practices;(7-1-25)

vii.A plan of corrective action for wells penetrating the zone of injection, but not properly sealed or decommissioned; and(7-1-25) viii.Contingency plans to cope with all shut-ins or well failures to prevent the migration of unacceptable fluids into underground sources of drinking waters.(7-1-25)

d.Name, address and phone number of person(s) or firm(s) supplying the technical information and/ or designing the injection well;(7-1-25)

e.Proof that the applicant is financially responsible, through a performance bond or other appropriate means, to decommission the injection well in a manner approved by the Director.(7-1-25)

IDAPA 37.03.03.036 (Reserved)

IDAPA 37.03.03.050 Class V Injection Well Requirements – Application Processing

01.Draft Permit Preparation.

After all application information is received and evaluated, the Director will prepare a draft permit or denial, which will include the application for permit, permit conditions or reasons for denial, and any compliance schedules or monitoring requirements. In preparing the draft permit or denial, the Director must consider the following factors: (7-1-25)

a.The availability of economic and practical alternative means of disposal;(7-1-25)

b.The application of best management practices to the facilities and/or area draining into the well;

c.The availability of economical, practical means of treating or otherwise reducing the amount of contaminants in the injected fluids;(7-1-25)

d.The quality of the receiving ground water, its category, its present and future beneficial uses or interconnected surface water;(7-1-25)

e.The location of the injection well with respect to drinking water supply wells; and(7-1-25)

f.Compliance with Ground Water Quality Standards.(7-1-25)

g.The benefit to the State of Idaho.(7-1-25)

02.Public Notice. The Director will provide public notice of any draft permit to construct, maintain or modify a Class V injection well by means of a legal notice in a newspaper of general circulation in the county in which the well is located. The Director may give additional notice as necessary to adequately inform the interested public and governmental agencies. There shall be a period of at least thirty (30) days following publication for any interested person to submit written comments.(7-1-25)

03.Review by the Directors of Other State Agencies. The Directors of other state agencies, as determined by the Director, shall be given an opportunity to review and comment on draft permits. Comments must be submitted to the Director within thirty (30) days of public notice.(7-1-25)

04.Open-Loop Heat Pump Return Wells (Subclass 5A7). The Director may waive the draft permit and recurring permit cycle requirements of these rules for any application proposing use of an open-loop heat pump return well greater than eighteen (18) feet in depth solely for disposal of heat pump water at a rate not exceeding fifty (50) gpm.(7-1-25)

05.Fact-Finding Hearings. At the Director’s discretion, or upon motion of any interested individual, the Director may elect to hold a fact-finding hearing. Said hearing will be held at a location in the geographical area of the injection well. Notice of said hearing will be provided at least thirty (30) days in advance of the hearing by regular mail to the applicant and to the person or persons requesting the hearing. Public notice of the fact-finding hearing shall be made in a newspaper of general circulation in the county where the injection well is located.

06.Draft Permit Final Review and Consideration. The Director will consider the following factors when taking final action on draft permits:(7-1-25)

a.The potential for unreasonable contamination or deterioration of ground water quality:(7-1-25)

b.The likelihood and consequences of the injection well system failing;(7-1-25)

c.The long-term effects of such disposal or storage;(7-1-25)

d.The recommendations and related justifications of the Directors of other state agencies and the public;(7-1-25)

e.The potential for violation of Ground Water Quality Standards at the point of injection or the point of beneficial use; and(7-1-25)

f.Compliance with the Idaho Ground Water Quality Plan.(7-1-25)

07.Issuance of Permit. After considering the draft permit for construction, modification, or maintenance, and all matters relating thereto, the Director shall issue a permit if the standards and criteria be met and USDW’s will not be unreasonably affected. If the Director finds that the standards and criteria cannot be met or that ground water sources cannot be protected from unreasonable contamination at all times, the draft permit may be denied or a permit may be issued with conditions designed to protect ground water sources. The Director’s decision will be in writing and a copy mailed by regular mail to the applicant and to all persons who commented in writing on the draft permit or appeared at a hearing held to consider the draft permit.(7-1-25)

08.Permit Conditions and Requirements. Any permit issued by the Director shall contain conditions to protect ground water sources from waste, contamination, or deterioration of Ground Water Quality Standards. In addition to specific construction, operation, maintenance, monitoring, and reporting requirements that the Director finds necessary, each permit shall be subject to the standard conditions and requirements of this rule.(7-1-25)

09.Permit Decision Notice. The Director’s decision shall be in writing and a copy shall be mailed by regular mail to the applicant and all persons who commented in writing on the draft permit or appeared at a hearing held to consider the draft permit.(7-1-25)

IDAPA 37.03.03.051 (Reserved)

IDAPA 37.03.03.052 Class V Injection Well Construction and Operation Requirements

01.Construction Requirements.

The following requirements apply to all Class V injection wells authorized by permit unless noted differently:(7-1-25)

a.Deep injection wells shall be constructed by an Idaho licensed well driller to conform with the current Well Construction Standards (IDAPA 37.03.09), the conditions of the well construction permit, and the conditions of the injection well permit issued pursuant to these rules, except that a driller’s license is not required for the construction of a driven mine shaft or a dug hole.(7-1-25)

b.Well drillers or other persons involved with the construction of any injection well shall not commence construction of the injection well until a certified copy of the approved injection well permit is obtained from the Director. (7-1-25)

c.Injection wells shall be constructed in accordance with the conditions of the permit. Ruleauthorized shallow injection wells shall be constructed as shown or described in the inventory submittal.(7-1-25)

d.Injection wells shall be constructed to prevent the entrance of any fluids other than specified in the permit.(7-1-25)

e.Deep injection wells shall be constructed to prevent waste of artesian fluids or movement of fluids from one aquifer into another.(7-1-25)

f.When construction or modification of an injection well has been completed, the owner or operator shall inform the Director of completion on a form provided by the Department.(7-1-25)

g.A sampling port shall be provided for deep injection well systems if the system is enclosed.

h.All new injection wells constructed into alluvial formations shall have a minimum ten (10) foot separation from the bottom of the well and seasonal high ground water.(7-1-25)

02.Operational Conditions and Requirements. The following requirements apply to all Class V injection wells authorized by permit unless noted differently:(7-1-25)

a.The injection well shall not be used until the construction, operation and maintenance requirements of the permit are met and provisions are made for any required inspection, monitoring and record keeping. (7-1-25)

b.For both permitted injection wells and rule-authorized shallow injection wells, injection of any contaminant at concentrations exceeding the standards described in Section 055 of this rule into a present or future drinking or other ground water source that may cause a health hazard or adversely affect a designated and protected use is prohibited.(7-1-25)

c.The injection well owner or operator shall develop approved procedures to detect constructional or operational failure in a timely fashion and shall have contingency plans to cope with the well failure.(7-1-25)

d.Authorized representatives of the Department shall be allowed to enter, inspect and/or sample:

i.The injection well and related facilities;(7-1-25)

ii.The owner or operator’s records of the injection operation;(7-1-25)

iii.Monitoring instrumentation associated with the injection operation; and(7-1-25)

iv.The injected fluids.(7-1-25)

e.The injection facilities shall be operated and maintained to achieve compliance with all terms and conditions of this permit.(7-1-25)

f.Proper operation and maintenance includes effective performance, adequate funding, operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures;(7-1-25)

g.If compliance cannot be met, the owner shall take corrective action as determined by the Director or terminate injection.(7-1-25)

h.The owner shall mitigate any adverse effects resulting from non-compliance with the terms and conditions of the permit.(7-1-25)

i.If the injection well was constructed prior to issuance of the permit, the well shall be brought into compliance with the terms and conditions of the permit in accordance with the schedule of compliance issued by the Director.(7-1-25)

j.The permit shall not convey any property rights.(7-1-25)

03.Conditions of Permanent Decommissioning. The following requirements apply to all Class V injection wells authorized by permit and rule authorized shallow injection wells, unless noted differently:(7-1-25)

a.Notice of intent to permanently decommission a well shall be submitted to the Director not less than thirty (30) days prior to commencement of the decommissioning activity.(7-1-25)

b.The method of permanent decommissioning for all injection wells shall be approved by the Director prior to commencement of the decommissioning activity.(7-1-25)

c.Notice of completion of permanent decommission shall be submitted to the Director within thirty (30) days of completion.(7-1-25)

d.All deep injection wells that are to be permanently decommissioned shall be plugged in accordance with current Well Construction Standards.(7-1-25)

e.Following permanent cessation of use, or where an injection well is not completed, the Director shall be notified. Decommissioning procedures or other action, as prescribed by the Director, shall be conducted.

f.The injection well owner or operator has the responsibility to ensure that the injection operation is decommissioned as prescribed.(7-1-25)

04.Duration of Approved Permits. The length of time that a permit may be in effect for Class V wells authorized by permit shall not exceed ten (10) years.(7-1-25)

053 - 054.(RESERVED)

IDAPA 37.03.03.055 Standards for the Quality of Fluids Injected Into Class V Wells

01.General. In jected fluids shall meet Ground Water Quality Standards for physical, biological, chemical, and radiological contaminants, and if ground water produced from adjacent points of diversion for beneficial use meets the Ground Water Quality Standards as defined in these rules, then that aquifer will be protected from unreasonable contamination and will be preserved for diversion to beneficial uses. The Director may, however, when it is deemed necessary, require specific injection wells to be constructed and operated in compliance with additional requirements, such as best management practices (BMPs), so as to protect the ground water resource from deterioration and preserve it for diversion to beneficial use.(7-1-25)

02.Waivers. A waiver of one (1) or more standards may be granted by the Director if it can be demonstrated by the applicant that the contaminants in injected fluid will not endanger a ground water source for any present or future beneficial use.(7-1-25)

03.Chemical and Radiological Contaminants in Injected Fluids. The following limits shall not be exceeded in injected fluids from a well when such fluids will or are likely to reach a USDW:(7-1-25)

a.The concentration of each chemical contaminant in the injected fluids shall not exceed the concentration of each applicable contaminant in the receiving water or the ground water quality standard, whichever is less stringent; and (7-1-25)

b. Radiological levels of the injected fluids shall not exceed those levels specified by the Ground Water Quality Standards.(7-1-25)

04.Biological contaminants. The following restrictions apply to injected fluids with biological contaminants included in the ground water quality standard.(7-1-25)

a.Contamination of ground water produced at any point of diversion for beneficial use by injected fluids containing coliform bacteria in concentrations greater than the current ground water quality standard is prohibited;(7-1-25)

b.Construction of shallow and deep injection wells, as specified by the Director, that are likely to exceed the current ground water quality standard for coliform bacteria at the point of diversion for beneficial use is prohibited; and (7-1-25)

c.The Director may require the use of best management practices (BMPs) to reduce the potential concentration of coliform bacteria in the injected fluids;(7-1-25)

d.The Director may require the use of water treatment technology, including ozonation and chlorination devices, sand filters, and settling pond specifications to reduce the potential concentration of coliform bacteria in injected fluids;(7-1-25)

e.Ground water produced from points of diversion for beneficial use within the distances identified in Table 1. that inject fluids containing coliform bacteria in concentrations greater than the current ground water quality standard shall be subject to monitoring for bacteria by the owner/operator of the injection well. A waiver of the monitoring requirement may be granted by the Director when it can be demonstrated that injection will not result in unreasonable contamination of ground water produced from these adjacent points;(7-1-25)

f.At no time shall any untreated fluid containing fecal contaminants of human origin be injected into any Class V injection well authorized under these rules. Subsurface fluid distribution systems that apply or distribute recycled water to the root-zone and regulated by IDEQ are exempt from this rule.(7-1-25)

05.Physical, Visual, and Olfactory Characteristics. The following restrictions apply to physical, visual, and olfactory characteristics of injected fluids. The temperature, color, odor, conductivity, turbidity, pH, or other characteristics of the injected fluid may not result in the receiving ground water becoming less suitable for diversion to beneficial uses, as determined by the Director.(7-1-25)

06.Injectate Standards for the Quality of Recycled Water Derived from a Municipal or Industrial Wastewater Source.(7-1-25)

a.Shallow Injection Wells. The concentration of contaminants in recycled water derived from municipal or industrial wastewater sources must prevent contamination and comply with established Ground Water Quality Standards and all other applicable IDEQ rules and permitting requirements prior to injecting into a shallow injection well.(7-1-25)

b.Deep Injection Wells. The concentration of contaminants in recycled water derived from municipal or industrial wastewater sources must prevent contamination and comply with established Ground Water Quality Standards and all other applicable IDEQ rules and permitting requirements prior to injecting into a deep injection well. Additionally, injected fluids must not result in the endangerment of a USDW. Recycled water quality requirements shall be determined by the Department in coordination with IDEQ during the permitting process. The background concentration of any applicable contaminant shall be determined by a statistical analysis consisting of a type and method approved by the Department.(7-1-25)

07.Standards for the Quality of Fluids Injected to Subclass 5A7 Wells (Open-Loop Heat Pump Return).(7-1-25)

a.The quality of fluids injected to a Subclass 5A7 injection well shall comply with Ground Water Quality Standards or shall be equal to the quality of the ground water source passed through a heat exchange system, whichever is less stringent.(7-1-25)

b.If the quality of the ground water source does not meet Ground Water Quality Standards, the injected fluids must be returned to the formation from which they were drawn.(7-1-25)

c.The temperature of the injected fluids shall not impair the designated beneficial uses of the receiving ground water.(7-1-25)

IDAPA 37.03.03.056 (Reserved)

IDAPA 37.03.03.057 Criteria for Location and Use of Class V Wells Requiring Permits

01.General: A Class V injection well requiring a permit may be required to be located a minimum distance, as determined from Table 1, from any point of diversion for beneficial use that could be harmed by bacterial contaminants. The minimum distance shown in Table 1 is also referred to as the zone of influence. This requirement is not applicable to wells injecting fluids of quality that meet adopted Ground Water Quality Standards. In addition, the Director may require a Class V injection well to be located a distance from a point of diversion for beneficial use to minimize or prevent ground water contamination resulting from unauthorized or accidental injection, as determined by the Director.(7-1-25)

a.The location requirements in Table 1 may be waived when the applicant can demonstrate that any springs or wells within the minimum distance as determined from Table 1 will not be contaminated by the applicant’s injection well. The applicant may be required to monitor production wells or springs within the minimum distance as determined in Table 1 to demonstrate that they are not being contaminated. (7-1-25)

Determined Radii of the Zone of Influence Based on Maximum Average Weekly Injection Rates (cfs) of Class V Injection Wells * Injection (cfs)Radius (ft) 0 - 0.20800 0.21 - 0.601,400 0.61 - 1.001,800 1.01 - 2.002,500 2.01 - 3.003,000 * Injection rates shall be based on the average volume of fluids injected into the well during the week of greatest injection in an average water year.(7-1-25)

b.The Director may reduce separation distance requirements if the quality of injected fluids are improved through additional treatment or BMPs.(7-1-25)

c.Heat pump return wells (sub-class 5A7) are exempt from the separation distance requirement of this section.(7-1-25)

IDAPA 37.03.03.058 Monitoring, Record Keeping, and Reporting Requirements

The Director may require monitoring, record keeping, and reporting by any owner or operator if the Director finds that the well may adversely affect a ground water source or is injecting a contaminant that could have an unacceptable effect upon the quality of the ground waters of the state.(7-1-25)

01.Monitoring. The Director may require, as conditions of the permit, the installation, use, and maintenance of monitoring equipment or methods including, but not limited to, the following:(7-1-25)

a.Monitoring of injection pressures and pressures in the annular space between casings;(7-1-25)

b.Flow rate and volumes;(7-1-25)

c.Analysis of quality of the injected fluids for contaminants that are subject to limitation or reduction under the conditions of the permit; or other contaminants which the Director has reason to believe are in the injected fluids;(7-1-25)

d.Monitoring of ground water through special monitoring wells or existing points of diversion for beneficial use in the zone of influence as determined by the Director;(7-1-25)

e.A demonstration of the integrity of the casing, tubing, or seal of the injection well.(7-1-25)

f.The frequency of required monitoring shall be specified in the permit when issued, except that the Director at any time may, in writing, require additional monitoring and reporting.(7-1-25)

g.All monitoring tests and analysis required by permit conditions shall be performed in a state certified laboratory or other laboratory approved by the Director.(7-1-25)

h.Any field instrumentation used to gather data, when specified as a condition of the permit, shall be required by the Director to be tested and maintained in such a manner as to ensure the accuracy of the data. (7-1-25)

i.All samples and measurements taken for the purpose of monitoring shall be representative of the monitoring activity and fluids injected.(7-1-25)

02.Record Keeping. The permittee shall maintain records of all monitoring activities to include: 3.01 - 4.003,500 4.01 - 5.004,000 Greater than 5.00As determined by the Director Determined Radii of the Zone of Influence Based on Maximum Average Weekly Injection Rates (cfs) of Class V Injection Wells * Injection (cfs)Radius (ft)

a.Date, time, and exact place of sampling;(7-1-25)

b.Person or firm performing analysis;(7-1-25)

c.Date of analysis, analytical methods used and results of analysis;(7-1-25)

d.Calibration and maintenance of all monitoring instruments; and(7-1-25)

e.All original tapes, strip charts or other data from continuous or automated monitoring instruments.

03.Reporting. Monitoring results obtained by the permittee pursuant to the monitoring requirements prescribed by the Director shall be reported to the Director as required by permit conditions.(7-1-25)

a.The Director shall be notified in writing by the permittee within five (5) days after the discovery of a violation of the terms and conditions of the permit. If the injection activity endangers human health or a public or domestic water supply, use of the injection well shall be immediately discontinued, and the owner or operator shall immediately notify the Director. Notification shall contain the following information:(7-1-25)

i.A description of the violation and its cause;(7-1-25)

ii.The duration of the violation, including dates and times; if not corrected or use of the well discontinued, the anticipated time of correction; and(7-1-25)

iii.Steps being taken to reduce, eliminate and prevent recurrence of the injection.(7-1-25)

b.Where the owner or operator becomes aware of failure to submit any relevant facts in any permit application or report to the Director, that person shall promptly submit such facts or information.(7-1-25)

c.The permittee shall furnish the Director, within a time specified by the Director, any information which the Director may request to determine compliance with the permit.(7-1-25)

d.The Director shall be notified in writing of planned physical alterations or additions to any facility related to the permitted injection well operation.(7-1-25)

e.Additional information to be reported to the Director in writing shall include:(7-1-25)

i.Transfer of ownership;(7-1-25)

ii.Any change in operational status not previously reported;(7-1-25)

iii.Any anticipated noncompliance; and(7-1-25)

iv.Reports of progress toward meeting the requirements of any compliance schedule attached or assigned to an approved permit.(7-1-25)

f.All notices and reports submitted to the Director shall be signed and certified. (7-1-25)

05.Permit Assignable. Permits may be assigned to a new owner or operator of an injection well if the new owner or operator, within thirty (30) days of the change, notifies the Director of such change. The new owner or operator shall be responsible for complying with the terms and conditions of the permit from the time that such change takes place.(7-1-25)

IDAPA 37.03.03.059 (Reserved)

IDAPA 37.03.03.060 Hearing Before the Idaho Water Resource Board

01.Hearings on Conditional Permits, Disapproved Applications, or Petitions for Exemption. Any owner or operator aggrieved by the approval or disapproval of an application, or by conditions imposed upon a permit, or any person aggrieved by the Director’s decision on a petition for exemption under these rules, shall be afforded an opportunity for a hearing before the Board or its designated hearing officer in accordance with Idaho Code § 42-3909.(7-1-25)

02.Hearings on Permit Cancellations. The Board shall provide notice and an opportunity for a hearing to the holder of any permit proposed to be cancelled by the Director in accordance with Idaho Code § 42- 3910.(7-1-25)

IDAPA 37.03.03.061 (Reserved)

IDAPA 37.03.03.070 Violations, Formal Notification and Enforcement

01.Violations. It shall be a violation of these rules for any owner or operator to:(7-1-25)

a.Fail to comply with a permit or authorization, or terms or conditions thereof;(7-1-25)

b.Fail to comply with applicable standards for water quality;(7-1-25)

c.Fail to comply with any permit application notification or filing requirement;(7-1-25)

d.Knowingly make any false statement, representation or certification in any application, report, document or record filed pursuant to these rules, or terms and conditions of an issued permit;(7-1-25)

e.Falsify, tamper with or knowingly render inaccurate any monitoring device or method required to be maintained or utilized by the terms and conditions of an issued permit;(7-1-25)

f.Fail to respond to any formal notification of a violation when a response is required; or(7-1-25)

g.Decommission a well in an unauthorized manner.(7-1-25)

02.Additional. It shall be a violation of these rules for any person to construct, operate, maintain, convert, plug, decommission or conduct any other activity in a manner which results or may result in the unauthorized injection of a hazardous or radioactive waste by an injection well.(7-1-25)

03.Enforcement. Violation of any of the provisions of the Injection Well Act (Chapter 39, Title 42, Idaho Code) or of any rule, regulation, standard or criteria pertaining to the Injection Well Act may result in the Director initiating an enforcement action as provided under Chapters 17 and 39, Title 42, Idaho Code.(7-1-25)

IDAPA 37.03.03.071 (Reserved)

37.03.02 Beneficial Use Examination Rules

IDAPA 37.03.02.000 Legal Authority

The Director of the Department of Water Resources adopts these ru les under the authority provided by Sections 42- 217a and 42-1805(8), Idaho Code.(7-1-25)

IDAPA 37.03.02.001 Scope

These rules set the procedures for appoin ting certified water right examiners and govern beneficial use examinations and the filing of beneficial use examination reports.(7-1-25)

01.Examination Requirements. The requirements listed are intended to establish acceptable standards to determine the extent of application of water to beneficial use. The requirements are not intended to restrict the application of other sound examination principles by water right examiners. The Director will evaluate any deviation from the standards hereinafter stated as they pertain to the review of any given examination. Certified water right examiners are encouraged to submit new techniques which will advance the practice of examination for the public benefit.(7-1-25)

02.Rules. These rules shall not be construed to deprive or limit the Director of any exercise of powers, duties, and jurisdiction conferred by law, nor to limit or restrict the amount or character of data, or information which may be required by the Director from any owner of a water right permit or authorized representative for the proper administration of the law.(7-1-25)

IDAPA 37.03.02.002 (Reserved)

IDAPA 37.03.02.009 Applicability

01.Proof of Beneficial Use.

These rules apply to all permits for which proof of beneficial use is not yet due and has not been submitted to the Department.(7-1-25)

02.Examination. These rules apply to all permits for which an examination has not been conducted.

03.Re-Examination. These rules apply to all permits that have been examined but the license has not been issued due to a request for a re-examination by the permit holder.(3-18-22)

04.Examination Fee. The examination fee requirements of these rules do not apply to a permit for ground water use for single family domestic use, stockwater, or any other use for which a permit is not required by statute. The examination fee is required for multiple use permits which exceed four one-hundredths (0.04) cfs or four (4) af/year even though single family domestic use or stockwater use is included as one (1) of the uses on the permit.

IDAPA 37.03.02.010 Definitions

01.Acre-Foot (af).

A volume of water sufficient to cover one (1) acre of land one (1) foot deep and is equal to three hundred twenty-five thousand, eight hundred fifty (325,850) gallons.(7-1-25)

02.Amendment. A change to the point of diversion, place, period, nature of use, or other substantial change in the method of diversion or use of a permitted water right.(7-1-25)

03.Beneficial Use Examination (Examination). An on-site inspection or other investigation to determine the extent of application of water to beneficial use and to determine compliance with terms and conditions of the water right permit.(7-1-25)

04.Beneficial Use Examination Report (Examination Report). The form provided by the Department or other acceptable document upon which the CWRE or Department employee records the data required by Section 035 gathered during the examination.(7-1-25)

05.Capacity Measurement. The maximum volume of water impounded in the case of a storage facility or the maximum rate of diversion from the source as determined by actual measurement of the system during normal operation.(7-1-25)

06.Certified Water Right Examiner (CWRE). An impartial investigator appointed by the Director in accordance with Section 030.(7-1-25)

07.Conveyance Works. The ditches, pipes, conduits, or other means by which water is carried or moved from the point of diversion to the place of use. Any storage structure, such as a dam, is considered part of the conveyance works.(7-1-25)

08.Cubic Foot Per Second (cfs). A rate of flow approximately equal to four hundred forty-eight and eight tenths (448.8) gallons per minute and also equals fifty (50) Idaho miner’s inches.(7-1-25)

09.Department. The Idaho Department of Water Resources.(3-18-22)

10.Director. The Director of the Idaho Department of Water Resources. Per Section 42-1701(3), Idaho Code, the Director may delegate authority to perform duties imposed upon the Director by law, including duties described herein, to a Department employee.(7-1-25)

11.Diversion Works. The constructed barriers or devices on the source of water by which water can be diverted from the natural watercourse.(7-1-25)

12.Duty of Water. The quantity of water necessary for the successful growing of crops when economically conveyed and applied to land without unnecessary loss.(7-1-25)

13.Irrigation. The application of water to cultivated land in sufficient quantity or manner to cause plant growth for a useful purpose.(7-1-25)

14.License. The certificate issued by the Director in accordance with Section 42-219, Idaho Code confirming the extent of diversion and beneficial use of the water made in conformance with the permit.(7-1-25)

15.License Examination Fee. The fee prescribed in Section 42-221(K), Idaho Code.(7-1-25)

16.Legal Subdivision. A tract of land described by a government land survey and usually described by government lot or quarter-quarter, section, township, and range. A lot and block of a subdivision plat recorded with the county recorder may be used in addition to the government land survey description.(7-1-25)

17.Measuring Device. A generally accepted structure or apparatus used to determine a rate of flow or volume of water.(7-1-25)

18.Nature of Use. The purpose of use for which water is applied.(7-1-25)

19.Period of Use. The period during which water under a given water right can be beneficially used.

20.Permit Holder or Owner. The person, association, or corporation to whom a permit has been issued or conveyed as shown by the records of the Department.(7-1-25)

21.Place of Use (POU). The location where beneficial use of appropriated water is made.(7-1-25)

22.Point of Diversion (POD). The location on the public source of water from which water is diverted.(7-1-25)

23.Project Works. A general term that includes diversion works, conveyance works, and any devices used to measure water or to apply water to the intended use.(7-1-25)

24.Proof of Beneficial Use (Proof). The submittal required in Section 42-217, Idaho Code. (7-1-25)

25.Source. The name of the natural water body at the point of diversion.(7-1-25)

26.Water Right Permit (Permit). The water right document issued by the Director authorizing the diversion and use of unappropriated public water, reallocated trust water, or a low temperature geothermal resource.

IDAPA 37.03.02.011 (Reserved)

IDAPA 37.03.02.025 Authority of Representative

01.Evidence of Authority.

When the proof of beneficial use, examination report, and drawings are filed by a CWRE on behalf of an owner, written evidence of authority to represent the owner shall be filed with the proof.(7-1-25)

02.Responsibility. It is the responsibility of the permit holder or authorized representative to submit proof and ensure submission of a completed examination report in acceptable form to the Director before the due date by either paying the required examination fee to the Department or by employing a CWRE.(7-1-25)

IDAPA 37.03.02.026 (Reserved)

IDAPA 37.03.02.030 Qualification, Examination and Appointment of Certified Water Right

EXAMINER.

01.Consideration.

Any professional engineer or geologist qualified and registered in the state of Idaho with the knowledge and experience necessary to satisfactorily complete an examination as determined by the Director shall be considered for appointment as a CWRE upon application to the Director. The application shall be in the form prescribed by the Director and shall be accompanied by a non-refundable fee in the amount prescribed in Section 42-217a, Idaho Code.(7-1-25)

02.Information. The Director may require an applicant for appointment to the position of CWRE to provide detailed experience information submit references, and satisfactorily complete a written or oral examination.

03.Denial. If the Director determines an applicant is not qualified, the application will be denied. If the Director determines an applicant is qualified, a certificate of appointment will be issued.(3-18-22)

04.Expiration. Every CWRE certificate of appointment shall expire March 31 of each year unless renewed by application in the manner prescribed by the Director. A non-refundable fee in the amount prescribed in Section 42-217a, Idaho Code, shall accompany an application for renewal.(7-1-25)

05.Refusal or Revocation. An appointment or renewal may be refused or revoked by the Director at any time upon a showing of reasonable cause. A party aggrieved by an action of the Director may request an administrative hearing pursuant to Section 42-1701A (3), Idaho Code.(3-18-22)

06.Reconsideration. An application for appointment or renewal which has been refused or revoked by the Director may not be reconsidered for six (6) months.(3-18-22)

07.Liability. The state of Idaho shall not be liable for the compensation of any CWRE. The permit holder shall be responsible for costs associated with proof submittal including, examination and examination report preparation.(7-1-25)

08.Examinations. The Director may authorize sufficiently knowledgeable and experienced Department employees to conduct examinations during the course and scope of their employment with the Department. Upon termination of employment with the Department, such examiners, unless appointed as a CWRE under provisions of these rules, are not authorized to conduct examinations.(7-1-25)

09.Ingress or Egress Authority. Appointment as a CWRE does not grant ingress or egress authority and does not convey authority unless explicitly prescribed in these rules.(7-1-25)

10.Reports. The Director will not accept an examination report prepared by a CWRE or a Department examiner who has any past or present interest, direct or indirect, in either the water right permit, the land, or any enterprise benefiting, or likely to benefit, from the water right. The Director will presume an actual or potential conflict of interest exists and will not accept an examination report from the following:(7-1-25)

a.The person owning the water right permit or the land or enterprise benefiting from the water right permit, members of their family (spouse, parents, grandparents, lineal descendants including those that are adopted, lineal descendants of parents; and spouse of lineal descendants), and their employees.(7-1-25)

b.The person who sold or installed the project works.(7-1-25)

11.Money Received. All moneys received by the Department under the provisions of these rules shall be deposited in the water administration account created under Section 42-238a, Idaho Code.(7-1-25)

IDAPA 37.03.02.031 (Reserved)

IDAPA 37.03.02.035 Examination for Beneficial Use

01.Examination Report.

An examination report must include the following information in sufficient detail for the Director to determine the extent of water use developed consistent with the permit:(7-1-25)

a.Each permitted use developed or partially developed. Note any undeveloped permitted use and describe any established use that is not authorized by the permit being examined.(7-1-25)

b.The location for the POD described by legal subdivision, including a concise description of the diversion works and a general description of the conveyance works. The description must trace the water from the POD to the POU. If water is stored, describe the timing of storage, method of storage, release, rediversion, and conveyance to the POU. Describe the make, capacity, serial number, and model number of all pumps, boosters or measuring devices associated with the POD at the source of the water supply. Include any schematic diagrams, photographs, digital images, and maps sufficient to locate and describe the diversion, conveyance, and usage systems.

c.Any interconnection of water use with another water right or conveyance system. Interconnection includes, but is not limited to, sharing the same POD, distribution system, POU, or beneficial use. The examination report shall include an evaluation that demonstrates the water use is distinct from other existing water rights, is an alternate source of water for a beneficial use served by an existing water right, or is an increment of beneficial use not authorized by another existing water right.(7-1-25)

d.If water is returned directly to a public water source after use, a description of the conveyance system and the legal description of the point where the water is returned.(7-1-25)

e.The method of compliance with each permit condition of approval.(7-1-25)

f.The POU location for each use described by legal subdivision.(7-1-25)

i.For irrigation, describe the irrigated acreage to the nearest whole acre in each forty (40) acre legal subdivision. For irrigation of less than ten (10) acres, describe the acreage to the nearest one-tenth (0.10) acre.

ii.For irrigation, submit a map depicting the boundaries of the irrigated area and the project works location that conveys water to each area. Show the full or partial acreage in each legal subdivision of forty (40) acres or government lot.(7-1-25)

g. If more than one (1) POD is developed with separate diversion works and conveyance works, a description of each separate system. For irrigation, submit a map depicting the boundary of irrigated acres and the number of acres per legal subdivision for each separate system.(7-1-25)

h.The annual diversion volume based on actual beneficial use during the development period for each permitted use. Describe the method used for determining the annual diversion volume. The annual diversion volume shall account for seasonal variations in factors affecting water use, including seasonal variations in water availability.

Volumes may include reasonable conveyance losses actually incurred by the water user.(7-1-25)

i.For irrigation, the volume shall be based on the standard field headgate requirement as determined by the Director. The Department established irrigation standard field headgate requirement is available on the Department’s website or from the Department upon request.(7-1-25)

ii.For heating, cooling, or commercial snowmaking, the volume may be adjusted to account for documented weather conditions during any single season from among the fifty (50) years immediately prior to submitting proof for the permit.(7-1-25)

iii.For storage use that includes refill, a use from storage, or both, the volume shall be the sum of the amount used for fill and in priority refill. If the volume exceeds the capacity of the storage facility, describe the amount, method, and timing of refill.(7-1-25)

i.The following water uses are exempt from the volume reporting requirement:(7-1-25)

i.Diversion to storage.(7-1-25)

ii.Domestic use from ground water as defined in Section 42-111, Idaho Code.(7-1-25)

iii.In-stream watering of livestock.(3-18-22)

iv.Fire protection. (Volume is required for fire protection storage.)(3-18-22)

v.Non-consumptive on-stream power generation.(7-1-25)

vi.Minimum stream flows established pursuant to Chapter 15, Title 42, Idaho Code.(3-18-22)

vii.Municipal use bya municipal provider as defined in Section 42-202B(5), Idaho Code that is serving users within a municipality’s service area as defined in Section 42-202B(9), Idaho Code, except the following situations that require a volume to be reported:(7-1-25)

(1)The permit or amended permit was approved with a volume limitation; or(3-18-22)

(2)The permit was not approved for municipal use but can be amended and licensed for a municipal use established during the authorized development period for the permit.(3-18-22) viii.Irrigation using natural stream flow diverted from a stream or spring. (Volumes must be reported for irrigation uses from ponds, lakes and ground water and for irrigation storage and irrigation from storage.)

j.For fish propagation, the total number of holding/rearing ponds and the dimensions and volume of each pond. The annual volume shall be calculated based on the changes of water per hour.(7-1-25)

k.Description of the beneficial use made of the water for all non-irrigation use.(7-1-25)

l.The period during each year that water is used for each permitted use.(7-1-25)

m.The diversion rate measured for each use.(7-1-25)

n.The amount of water will be limited by the smaller of the permitted amount, the amount upon which the license examination fee is paid, the capacity of the diversion works or the amount beneficially used prior to submitting proof of beneficial use, including any statutory limitation of the duty of water.(7-1-25)

o.Amendment recommendations based on actual use if the POU, POD, period of use, or nature of use is different from the permit.(7-1-25)

p.A map consistent with Subsection 045.03 unless waived by the Director.(7-1-25)

q.Unless required as a condition of permit approval, an on-site examination and direct measurement of the diversion rate is not required for the following water uses if the extent of beneficial use, place of use, season of use, and point of diversion can be confirmed by documentary means such as well driller reports, property tax records, receipts, photographs, aerial imagery, or other records:(7-1-25)

i.Irrigation up to five (5) acres.(3-18-22)

ii.Storage of up to fourteen point six (14.6) af of water for stockwater, aesthetic, recreation, or wildlife.(7-1-25)

iii.Any uses other than irrigation or storage if the total combined diversion rate for all the uses established in connection with the permit does not exceed twenty-four one hundredths (0.24) cfs.(7-1-25)

02.Examination Report Acceptability.(7-1-25)

a.All examination reports shall be prepared by or under the supervision of a CWRE or authorized Department employee. An examination report submitted by a CWRE must be properly endorsed with the CWRE’s engineer or geologist seal and signature. An examination report received from a CWRE will be accepted if the report includes all the information required, including the information required by Subsection 035.01.(7-1-25)

b.An examination report not completed as required by these rules will be returned for completion.

The penalty provisions of Section 055 will apply.(7-1-25)

c.If the Director determines that an examination report prepared by a CWRE is acceptable but additional information is needed to clarify the examination report, the Director will notify the CWRE in writing of the information required. If the additional information is not submitted within thirty (30) days or within the time specified in the written notice, the Director will return the examination report and proof to the permit holder. Failure to submit the required information within one (1) year of the date of the Department’s request is cause for the Director to take action to apply the provisions of Section 055.(7-1-25)

d.An examination report that indicates a measuring device or lockable controlling works, required as a condition of approval of the permit, is not installed or is not acceptable will be returned unless the Director has formally waived the measuring device requirement or lockable controlling works requirement.(7-1-25)

03.General.(3-18-22)

a.For irrigation, the duty of water shall not exceed five (5) af of stored water for each acre of land to be irrigated or more than one (1) cfs for each fifty (50) acres of land to be irrigated unless it can be shown to the satisfaction of the Director that a greater amount is necessary.(7-1-25)

b.For irrigated acreage of five (5) acres or less, a diversion rate up to three one-hundredths (0.03) cfs per acre may be allowed on the license to be issued by the Director.(3-18-22)

c.Conveyance losses from the POD to the POU which are determined by actual measurement may be allowed if the diversion rate does not exceed the permitted rate and the loss is determined by the Director to be reasonable.( 7-1-25)

d.The duty of water described in Paragraph 035.03.a. or 035.03.b. may be exceeded if the permit or amended permit was approved with a greater diversion rate per acre and good cause acceptable to the Director has been demonstrated.(7-1-25)

e.For irrigation, the irrigated areas may be generally described if the project works cover twenty-five thousand (25,000) acres or more, are within irrigation districts organized and existing under the laws of the state of Idaho, or were developed under a permit held by an association, company, corporation, or the United States authorized to deliver surface water to more than five (5) water users under an annual charge or rental, and the total irrigated acres are accurately determined and shown in the examination report. The amount of water beneficially used under such projects must be shown in the examination report.(7-1-25)

IDAPA 37.03.02.036 (Reserved)

IDAPA 37.03.02.040 Water Measurement

01.Measurement.

A rate of flow measurement shall be shown in units of cfs with three (3) significant figures and no more precision than hundredths. A volume measurement shall be shown in units of af with three (3) significant figures and no more precision than tenths.(7-1-25)

02.Diversion Rate. The diversion rate measurement must be conducted as close as reasonably possible to the source of supply and must be measured with the project works fully in place operating at normal capacity.(7-1-25)

03.Measurements. Water measurements may be made by vessel, weir, meter, rated flume, reservoir capacity table or other standard method of measurement acceptable to the Director. The examination report must describe the method used in making the measurement, the date when made, the name of the person making the measurement, a description of the location where the measurement was taken, and include sufficient information, including current meter notes, rating tables, or calibration information to enable the Director to check the quantity of water measured.(7-1-25)

04.Unacceptable Measurements. Theoretical diversion rates or theoretical carrying capacities are not acceptable as a measure of the diversion rate except as indicated in these rules and for diversion works where the flow rate cannot be measured accurately due to the physical characteristics of the diversion and distribution system.

05.Method. Flow rate measurements shall be determined using equipment and methods capable of obtaining an accuracy of plus or minus ten percent (10%).(7-1-25)

IDAPA 37.03.02.041 (Reserved)

IDAPA 37.03.02.045 Drawings, Map, and Schematic Diagram

01.Submittal.

Drawings, maps, photos and schematic diagrams used as an attachment to the examination report should be on eight and one-half by eleven (8 1/2 x 11) inch paper whenever possible.(7-1-25)

02.Attachment Sheets. Depict information on one (1) side of attached documents.(7-1-25)

03.Map. An aerial image or United States Geological Survey Quadrangle map depicting the POD and POU must be of a reasonable scale and show the location of the POU and POD to the nearest forty (40) acre tract. The location of any ditch, canal, mainline, or other conveyance work must be shown.(7-1-25)

04.Drawings. Drawings must include a scale and generally depict the size and type of diversion works, measuring device, conveyance system, water application method, and the location of any measurements taken.(7-1-25)

05.Photographs. Photographs of the diversion works, conveyance works, and other prominent features of the project works must be clearly labeled and attached to the examination report.(7-1-25)

IDAPA 37.03.02.046 (Reserved)

IDAPA 37.03.02.050 License Examination Fee ()

01.Examinations Conducted by Department Staff.

a.The examination fee shall be payable to the Department unless the examination is conducted by a CWRE.(7-1-25)

b.The Department will not conduct an examination for which the fee has not been paid to the Department unless exempted in Subsection 009.04, except that for any prior examination, whether conducted by a CWRE or by a Department employee, the department may conduct a supplemental examination on its own initiative at any time. No examination fee will be charged for a supplemental examination conducted by the Department on its own initiative.(7-1-25)

c.The Department will not issue a license for an amount of water in excess of the amount covered by the examination fee. Subsequent to the examination and prior to issuing a license, the Director will notify the permit holder that the licensed amount will be limited because an insufficient examination fee was paid. The permit holder will be allowed thirty (30) days after the notice is mailed to pay the additional examination fee. If payment is received within the thirty (30) day period, the Department will not reduce the rate or volume licensed based on the examination fee. If payment is not received within the thirty (30) day period, the Department will limit the rate or volume licensed based on the original examination fee paid. For the purpose of determining advancement of priority for late fees in accordance with Section 42-217, Idaho Code, fees will not be considered as having been paid until paid in full, including any subsequent fee.(7-1-25)

d.Excess examination fees are non-refundable.(3-18-22)

e.An examination fee equal to the initial examination fee paid to the Department shall be paid for a re-examination made at the request of the permit holder except upon a showing of error by the Department on the initial examination.(7-1-25)

02.Examinations Conducted by Certified Water Right Examiners.(7-1-25)

a.The examination fee required by Section 42-217, Idaho Code is not applicable for an examination conducted by or under the supervision of a CWRE.(7-1-25)

b.A permit holder may not choose to have the examination conducted by the Department after selecting a a CWRE.(7-1-25)

c.After submitting proof of beneficial use and paying an examination fee to the Department, but before the examination, a permit holder may submit an examination report completed by a CWRE. Because the examination fee is an essential component of timely proof submittal, the Department will not refund the examination

fee.(7-1-25)

IDAPA 37.03.02.051 (Reserved)

IDAPA 37.03.02.055 Penalty

01.Permits for Which Proof Has Not Been Submitted.

The submittal required is the proof and the examination fee or the proof and an examination report completed by a CWRE.(7-1-25)

02.Failure to Submit. Failure to submit either the license examination fee or an acceptable examination report prepared by or under the supervision of a CWRE by the proof due date is cause to lapse the permit pursuant to Section 42-218a, Idaho Code, unless the Department approved an extension of time pursuant to Section 42-204, Idaho Code, extending the proof of beneficial use due date.(7-1-25)

IDAPA 37.03.02.056 (Reserved)

37.03.05 Mine Tailings Impoundment Structures Rules

IDAPA 37.03.05.000 Legal Authority (rule 0)

These rules are adopted pursuant to Section 42-1714, Idaho Code.(3-30-23)

IDAPA 37.03.05.001 Scope (rule 1)

01.Scope.(3 -30-23)

a.These rules and standards will only apply to structures upon which construction, lift construction, enlargement, or alteration is underway on or after July l, 1978. Under no circumstances shall these rules be construed to deprive or limit the Director of the Department of Water Resources of any exercise of powers, duties and jurisdiction conferred by law, nor to limit or restrict the amount or character of data, or information which may be required by the Director from any owner of a mine tailings impoundment structure for the proper administration of the law.(3-30-23)

b.The design requirements listed are intended as a guide to establish acceptable standards of construction. They are not intended to restrict the application of other sound design principles by engineers. The Director will evaluate any deviation from the standards hereinafter stated as they pertain to the safety of any given mine tailings impoundment structure. Engineers are encouraged to submit new ideas which will advance the art and provide for the public safety.(3-30-23)

IDAPA 37.03.05.002 (Reserved)

IDAPA 37.03.05.010 Definitions (rule 10)

Unless the context otherwise requires, the following definitions govern these rules.(3-30-23)

01.Board. The Idaho Water Resource Board.(3-30-23)

02.Director. The Director of the Idaho Department of Water Resources.(3-30-23)

03.Department. The Idaho Department of Water Resources.(3-30-23)

04.Mine Tailings Impoundment Structure. Any artificial embankment which is or will be more than thirty (30) feet in height measured from the lowest elevation of the toe to the maximum crest elevation constructed for the purpose of storing mine tailings slurry.(3-30-23)

05.Mine Tailings Slurry. All slurry wastes from a mineral processing or mining operation. (3-30-23)

06.Mine Tailings Storage Capacity. The total storage volume of the impoundment when filled with tailings to the maximum approved design storage elevation.(3-30-23)

07.Borrowed Fill Embankment. Any embankment constructed of borrowed earth materials and which is designed for construction by conventional earth moving equipment.(3-30-23)

08.Reservoir. Any basin which contains or will contain the material impounded by the mine tailings impoundment structure.(3-30-23)

09.Owner. Includes any of the following who own, control, operate, maintain, manage, or propose to construct a mine tailings impoundment structure or reservoir.(3-30-23)

a.The state of Idaho and any of its departments, agencies, institutions and political subdivisions;

b.The United States of America and any of its departments, bureaus, agencies and institutions; provided that the United States of America shall not be required to pay any of the fees required by Section 42-1713, Idaho Code, and shall submit plans, drawings and specifications as required by Section 42-1721, Idaho Code, for information purposes only;(3-30-23)

c.Every municipal or quasi-municipal corporation;(3-30-23)

d.Every public utility;(3-30-23)

e.Every person, firm, association, organization, partnership, business, trust, corporation or company;

f.The duly authorized agents, lessees, or trustees of any of the foregoing;(3-30-23)

g.Receivers or trustees appointed by any court for any of the foregoing.(3-30-23)

10.Alterations, Repairs or Either of Them. Only such alterations or repairs as may directly affect the safety of the mine tailings impoundment structure or reservoir, as determined by the Director.(3-30-23)

11.Enlargement. Any change in or addition to an existing mine tailings impoundment structure or reservoir, which raises or may raise the storage capacity of the structure, as defined in Rule Subsection 010.06.

12.Days Used in Establishing Deadlines. Calendar days including Sundays and holidays. (3-30-23)

13.Certificate of Approval. A certificate issued by the Director for the mine tailings impoundment structure listing restrictions imposed by the Director, and without which no new mine tailings impoundment structures shall be allowed to impound mine tailings slurry or water and no existing impoundment shall be allowed to impound water or continue deposition of mine tailings slurry. The structure will be recertified following the site inspection scheduled according to the Hazard Classification assigned by the Department, unless the Director determines that the structure is unsafe.(3-30-23)

14.Engineer. A registered professional engineer, licensed as such by the state of Idaho.(3-30-23)

IDAPA 37.03.05.011 (Reserved)

IDAPA 37.03.05.025 Authority of Representative (rule 25)

When plans, drawings and specifi cations are filed by another person on behalf of an owner, written evidence of authority to represent the owner shall be filed with the plans, drawings and specifications.(3-30-23)

IDAPA 37.03.05.026 (Reserved)

IDAPA 37.03.05.030 Forms (rule 30)

Forms required by these rules.(3-30-23) 01.

Samples of Forms. Samples of all forms required by these rules are available from the Department to interested parties upon request.(3-30-23)

02.Form 1721. Construction of a mine tailings impoundment structure requires the filing of Form 1721.(3-30-23)

IDAPA 37.03.05.031 (Reserved)

IDAPA 37.03.05.035 Plans, Drawings, and Specifications (rule 35)

The following provisions shall apply in submitting plans, drawings, and specifications.(3-30-23)

01.Submission of Plans, Drawings, and Specification. Any owner who shall desire to construct, or enlarge, or alter or repair any mine tailings impoundment structure shall submit duplicate copies of plans, drawings, and specifications prepared by an engineer for the proposed work to the Director with required fees. An owner who desires to construct a continuously raised tailings impoundment structure shall submit duplicate copies of plans, drawings, and specifications prepared by an engineer, showing the stages of lift height, by periods of time, and ultimate design height.(3-30-23)

02.Application for and Receipt of Written Approval. Construction of a new mine tailings impoundment structure or enlargement, or non-emergency alteration or repairs on existing mine tailings impoundment structures shall not be commenced until the owner has applied and obtained written approval of the plans, drawings, and specifications covering the work. In emergency situations, the owner shall make the required alterations or repairs necessary to relieve the emergency, and notify the Director.(3-30-23)

03.Preparation and Submission of Plans. Plans must be prepared on a good grade of tracing linen or a good quality vellum or mylar. Transparent copies reproducible by standard duplicating processes, if accurate, legible and permanent, will be accepted. Plans may initially be submitted in the form of nonreproducible paper prints.

After reviewing the plans, the Director will notify the owner of any required changes.(3-30-23)

04.Scale of Plans and Drawings. Plans and drawings shall be of sufficiently large scale with an adequate number of views and proper dimensions, so that drawings may be readily interpreted and studied. (3-30-23)

05.Dimensions of Plans. All sheets for a set of plans shall have an outside dimension of twenty-four by thirty-six (24 x 36) inches. A margin of two (2) inches on the left-hand end and a margin of one-half (1/2) inch on the other three sides must be provided, making the available work space twenty-three (23) x thirty-three and one-half (33 1/2) inches.(3-30-23)

06.Plans. The plans shall include the following:(3-30-23)

a.A topographic map of the mine tailings impoundment structure site showing the location of the proposed mine tailings impoundment structure by section, township and range, and location of spillway or diversion structures, outlet works, and all borings, test pits, borrow pits;(3-30-23)

b.A profile along the mine tailings impoundment structure axis showing the locations, elevations, and depths of borings or test pits, including logs of bore hole and/or test pits;(3-30-23)

c.A maximum cross-section of the mine tailings impoundment structure showing elevation and width of crest, slopes of upstream and downstream faces, thickness of any proposed riprap, zoning of the earth embankment (if any), location of cutoff and bonding trenches, elevations, size and type of decant systems, valves, operating mechanism, and dimensions of all other essential structural elements such as cutoff walls, filters, embankment zones, etc.;(3-30-23)

d.Detailed drawings describing the outlet system, i.e., decant line, barge pump system, siphon system;(3-30-23)

e.If a spillway is used, a curve showing the discharge capacity in cubic feet per second of the spillway vs. gage height of the storage pool level above the spillway crest up to the maximum high-water level, and the formula used in making such determinations;(3-30-23)

f.If a stream diversion is created, a tabulation of the discharge capacity in cubic feet per second of any diversion works and of the diversion channel vs. flow depth through the diversion works or channel up to maximum capacity of the system, and the formulas used in making such determinations;(3-30-23)

g.Where staged construction will take place and no spillway exists, a curve showing maximum safe operating level for the tailings as a function of embankment height and the design criteria used to arrive at this;

h.Detailed plans, including cross-sections and profile, of the spillway or diversion works and any ass ociated channels;(3-30-23)

i.Plans for monitoring and/or recovering seepage from the reservoir in those instances where safety of the impoundment may be affected;(3-30-23)

j.An operation plan;(3-30-23)

k.An emergency procedure plan for protection of life and property;(3-30-23)

l.An abandonment plan that assures the Director to his satisfaction that, upon completion of the mining operation, the site will be in a safe maintenance-free condition.(3-30-23)

07.Specifications. Specifications shall include provisions acceptable to the Director for adequate observation, inspection and control of the work by a registered professional engineer during the period of construction.(3-30-23)

08.Provision Included with Plans. The specifications shall provide that the plans and specifications may not be materially changed without prior written consent of the Director.(3-30-23)

09.Provisions Included with Specifications. The specifications shall provide that certain stages of construction shall not proceed without the approval of the Director. Those stages requiring approval are as follows:

a.After clearing and excavation of foundation and prior to placing any fill material;(3-30-23)

b.After installation of the decant conduit and any proposed collars and before placing any backfill material around conduit;(3-30-23)

c.After construction is completed (first stage starter dike if staged construction) and before any water or mine tailings slurry is stored in the reservoir;(3-30-23)

d.Before each successive enlargement of the impoundment structure;(3-30-23)

e.After each stage of enlargement of the impoundment structure is completed and before storage is allowed to exceed the level approved for the previous approved stage;(3-30-23)

f.At such other times as determined necessary by the Director. The Director will, within seven (7) days after notification by the engineer, inspect and if satisfactory, approve the completed stage of construction.

Owners are encouraged to give prior notice to the Department, so that the inspection can be scheduled to prevent delays.(3-30-23)

10.Inspections, Examinations, and Tests. All materials and workmanship may be subject to inspection, examination and test by the Director at any and all reasonable times during manufacture and/or construction and at any and all places where such manufacture and/or construction are carried on.(3-30-23)

11.Rejection of Defective Material. The Director shall have the right to require the owner or engineer to reject defective material and workmanship or require its correction. Rejected workmanship shall be corrected and rejected material shall be replaced with proper material.(3-30-23)

12.Suspension of Work. The Director may order the engineer to suspend any work that may be subject to damage by climatic conditions.(3-30-23)

13.Responsibility of Engineer. These provisions shall not relieve the engineer of his responsibility to assure that construction is accomplished in accordance to approved plans and specifications or to suspend work on his own motion.(3-30-23)

14.Detailing Provisions of Specifications. The specifications shall state in sufficient detail, all provisions necessary to ensure that construction is accomplished in an acceptable manner and provide needed control fo r construction to ensure that a safe structure is constructed.(3-30-23)

15.Required Information. The following information shall be submitted with the plans and specifications.(3-30-23)

16.Engineer's Report. An engineer’s report giving details necessary for analysis of the structure and appurtenances. Included as a part of the report where applicable shall be the following:(3-30-23)

a.Formulas and assumptions used in designs;(3-30-23)

b.Hydrologic data used in determining runoff from the drainage areas;(3-30-23)

c.Engineering properties of each type of material to be used in the embankment and of the foundation areas;(3-30-23)

d.Stability analysis, including an evaluation of overturning, sliding, upstream and downstream slopes and foundation stability;(3-30-23)

e.Geologic description of reservoir area, including evaluation of landslide potential;(3-30-23)

f.Chemical analysis of all materials composing the slurry;(3-30-23)

g.Earthquake design loads must be evaluated at all sites located east of Range 22 E., Boise Meridian.

This area corresponds to Seismic Zone 3 as designated by the Recommended Guidelines of the National Dam Safety Program. Earthquake analysis may be required at other impoundment structure sites if deemed necessary by the Director;(3-30-23)

h.A seepage analysis of the embankment and reservoir bottom;(3-30-23)

i.A hydraulic analysis of the outlet system and spillway, diversion work or diversion channel;

j.Engineering properties and the weathering characteristics of the proposed tailings to be stored in the impoundment;(3-30-23)

k.Other information which would aid in evaluating the safety of the design.(3-30-23)

17.Filing of Additional Information. The Director may require the filing of such additional information which in his opinion is necessary to assess safety or waive any requirement herein cited if in his opinion it is unnecessary.(3-30-23)

IDAPA 37.03.05.036 (Reserved)

IDAPA 37.03.05.040 Bonding (rule 40)

An active surety bond or other means of acceptable surety payable to the Director of the Department of Water Resources shall be on file with the Director throughout the active life of the tailings disposal site. The purpose of this bond is to provide a means by which the tailings impoundment can be placed in a safe maintenance-free condition if abandoned by the owner without conforming to an abandonment plan approved by the Director.(3-30-23)

01.Filing of Bond. The bond shall be filed prior to any issuance by the Director of a certificate of approval for use of the mine tailings impoundment structure to impound mine tailings slurry and shall run for the approval period covered on the certificate of approval.(3-30-23)

02.Provisions of Bond. Bond provisions shall provide that the surety may be held liable for a period of up to five (5) years following notice of default on the bond.(3-30-23)

03.Amount of Bond. The bond amount will be set by the Director and is subject to revision each time it is renewed. The owner must obtain approval for the amount of his surety bond prior to each renewal.(3-30-23)

04.Cost Estimate Submitted by Engineer. In order to provide a basis for setting the bond amount, the engineer shall submit a cost estimate acceptable to the Director, together with conceptual details needed to arrive at the estimate, for abandonment of the facility at each proposed stage of its construction.(3-30-23)

05.Current Costs for Abandonment. Bond amount will be based on current costs for abandonment of the facility based on the approved cost estimate for abandonment at the present construction condition or the next approved proposed stage, whichever represents the larger bond amount.(3-30-23)

06.Determination of Bond Amount. If the final abandonment is determined to be the most costly condition, the owner may elect to use this as a basis for bonding throughout the life of the project. The Director may, however, revise the bonding amount to reflect updated costs when he feels it is necessary in order to maintain a realistic bond.(3-30-23)

07.Filing Initial Bond. The initial bond shall be filed upon completion of the first stage of construction and before the required certificate of approval is issued to allow storage of mine tailings slurry in the impoundment. No certificate of approval shall be renewed prior to filing by the owner of a bond renewal in an amount approved by the Director.(3-30-23)

08.Filing Copy of Performance Bond. Upon the filing of a copy of a performance bond with the Director, covering the terms and conditions of a state of Idaho mineral lease or an approved reclamation plan, in which these documents specify compliance with a plan of restoration of all mining operations, including the tailings impounding structure, the Director may determine the bond required of this section has been met, if the amount of the bond accurately reflects the cost associated with the abandonment plan provided by the owner.(3-30-23)

IDAPA 37.03.05.041 (Reserved)

IDAPA 37.03.05.045 Mine Tailings Impoundment Structures Design Criteria (rule 45)

The following minimum design criteria shall be used for all mine tailings impoundment structures designed for installation in Idaho. These limitations are intended to serve as guidelines for a broad range of circumstances, and engineers should not consider them as a restriction to the use of other sound design criteria. Deviation from this established criteria will be considered by the Director in approving plans and specifications.(3-30-23)

01.Embankment Slopes.(3-30-23)

a.For construction of borrowed fill embankments, in the absence of a stability analysis, the slopes shall be:

b.Construction by the upstream method shall not be used in the area of the state east of Range 22 E., Boise Meridian, unless the engineer can provide evidence that the construction and operation of the tailings impoundment will achieve a relative density of sixty percent (60%) or greater in the embankment and tailings to prevent liquefaction during earthquake loading.(3-30-23)

c.Safety factors for the embankment shall be at least one and five-tenths (1.5) for static loads and a minimum of one (1) for the static plus the appropriate earthquake load.(3-30-23)

d.To insure sufficient permeability and stability of the embankment, designs will require utilizing materials other than the tailings, when the tailings materials:(3-30-23)

i.Contain greater than seventy-five percent (75%) passing the #200 standard U.S. sieve, or fifty percent (50%) passing the #325 standard U.S. sieve;(3-30-23)

ii.Contain phosphate clays;(3-30-23)

iii.The design calls for the water to be impounded against the embankment;(3-30-23)

iv.Have other properties which makes them unsuitable for use as construction materials.(3-30-23)

e.Embankments designed for the storage of hazardous levels of radioactive materials shall, in addition to any requirements of these regulations, meet the criteria outlined in the Nuclear Regulatory Commission Upstream slope2:1 or flatter Downstream slope2:1 or flatter Regulatory Guide 3.11 and the Idaho Radiation Control Regulations administered by the Idaho Department of Environmental Quality.(3-30-23)

f.The design shall consider the need for drains and/or operational procedures to promote consolidation and insure that a low phreatic surface is maintained within the embankment. Drainage pipe shall not be used beneath embankments where excessive or differential settlement may cause failure of the pipes and subsequent piping of the tailings or embankment. When the quality of the mine tailings slurry is such that it will adversely affect the quality of the existing ground water, the design should be coordinated with the Department and the Department of Environmental Quality to insure that all applicable permits are obtained.(3-30-23)

g.Instrumentation of the embankment and/or foundation will be required to insure that the structure is functioning satisfactorily. Standpipe piezometers with an inside diameter greater than one-half (1/2) inch will not be acceptable for use in fine-grained or cohesive soils in order to minimize response time.(3-30-23)

h.Tailings impoundment structures which are constructed using the tailings shall not be constructed or raised during freezing weather to prevent frost lenses in the embankment. Sufficient freeboard must be provided during the summer construction season if the disposal operation is to continue during the winter.(3-30-23)

i.If tailings are to be discharged during times of freezing weather and the embankment is to be constructed using either the upstream or centerline method, the pond shall be of sufficient size to insure that any ice formed in the tailings pond area melts during the next warm season.(3-30-23)

02.Top Width Embankment.(3-30-23)

a.In the absence of a stability analysis, the minimum top width for mine tailings impoundment structures shall be:

W = 2 (H to 1/2 power) + 4, minimum W = Top width H = Embankment height(3-30-23)

b.The minimum top width for any tailings embankment is ten (10) feet.(3-30-23)

03.Cutoff Trenches or Walls.(3-30-23)

a.Cutoff trenches, if needed, shall be used to bond the fill through relatively pervious material to an impervious stratum or zone. The bond area shall extend up the abutments to the maximum high water or tailings impoundment elevation. Cutoff (keylock) trenches which are to be backfilled with compacted fill shall be wide enough to allow the free movement of excavation and compaction equipment. Side slopes shall be no steeper than 1:1 for depths up to twelve (12) feet, and no steeper than one and one-half (1 1/2) to one (1) for greater depths to provide for proper compaction. Flatter slopes may be required for safety and stability.(3-30-23)

b.Concrete cutoff walls may be used to bond fills to smooth rock surfaces in a similar manner as cutoff trenches and they shall be entrenched in the rock to a depth approximately one-half (1/2) the thickness of the cutoff wall. Concrete cutoff walls shall be doweled into the rock a minimum of twelve (12) inches with a maximum spacing of eighteen (18) inches for three-quarter (3/4) inch steel dowels. Concrete walls shall have a minimum projection of three (3) feet perpendicular to the rock surface and shall have a minimum thickness of twelve (12) inches.(3-30-23)

04.Borrowed Fill Embankment.(3-30-23)

a.The approved earth materials (silt soils are seldom acceptable) shall be zoned as shown in the plans and placed in the embankment in continuous, approximately level layers. Compaction shall be based on ASTM D- 698 for cohesive soils and a minimum compaction of ninety-five percent (95%) of the laboratory Standard Proctor dry density is required. Compaction of cohesionless soils shall insure a relative density of sixty percent (60%) or greater.(3-30-23)

b.An acceptable working range of moisture content for the fill material shall be established and maintained.(3-30-23)

c.The material shall be compacted by means of a loaded sheepsfoot roller, vibratory roller, or other acceptable means, to the required density.(3-30-23)

d.No rock shall be left in the fill material which has a maximum dimension exceeding the lift thickness. The fill material shall be free of brush and organic materials.(3-30-23)

e.The fill shall be carried up simultaneously the full design width of the structure, and the top of the fill shall be kept substantially level at all times or slope slightly toward the reservoir.(3-30-23)

f.No frozen or cloddy fill material shall be used, and no material shall be place upon frozen, muddy or unscarified surfaces.(3-30-23)

g.All materials used in the embankment shall meet all the stability and seepage requirements as shown by a design analysis of the structure and shall be properly installed to meet these requirements.(3-30-23)

05.Riprap.(3-30-23)

a.All dams shall be protected from wave action. In cases where water is stored directly against the mine tailings impoundment structure or where wave action at maximum pool level during design inflow events would affect the integrity of the embankment, the Director may require use of riprap or other protective measures. (3-30-23)

b.If riprap is used the design shall specify the rock size and extent of blanket required to prevent erosion.(3-30-23)

06.Outlet Systems.(3-30-23)

a.Reservoirs must safely handle the design inflow for all areas draining into the reservoir. This may be done either by storing the entire design inflow or by having an outlet system or combination of systems adequate to safely pass the design inflow. If the tailings reservoir is situated on a stream channel, an outlet system or an approved alternative system capable of meeting downstream flow requirements must be provided.(3-30-23)

b.The minimum design inflow for all reservoirs shall be the flood with one percent (1%) probability of occurrence. The Director may require a greater design inflow be used in instances of high hazard, for larger mine tailings impoundment structures, or when the inflow is to be entirely stored in the reservoir during the flood period.

c.The outlet system may be composed of one (1) or a combination of the following: decant line, spillway, or stream channel diversion to bypass the reservoir. The system will be determined by individual reservoir conditions. Unless removal of the mine tailings impoundment structure and reservoir is part of the abandonment plan, the outlet system shall be maintained in perpetuity, unless it is demonstrated that an outlet system is not needed.

d.Outlet systems will not be allowed if their use would release toxic, highly turbid, radioactive or otherwise hazardous flows from the reservoir. In these cases the design inflow must either be entirely stored or diverted around the reservoir.(3-30-23)

e.All spillways shall be stabilized to discharge flow through the use of concrete, masonry, riprap or sod, if not constructed in resistant rock.(3-30-23)

f.Wherever possible, the spillway shall be constructed independent of the impoundment structure. It shall lead the water far enough away from the mine tailings impoundment structure so as not to endanger the structure.(3-30-23)

g.A diversion system must not subject the mine tailings impoundment structure to erosion during the design inflow event. All stream diversions shall conform to the minimum standards for stream channel alterations as written by this Department.(3-30-23)

h.Decant conduits, if under the embankment, shall be laid on a firm, stable foundation and normally must not be placed on fill. They shall have a minimum inside diameter of twelve (12) inches and one (1) of the following provisions included in the design:(3-30-23)

i.The owner shall have the conduit inspected by photographic or video tape equipment and a copy of the inspection provided to the Department, if a problem is suspected; or(3-30-23)

ii.The conduit shall be completely plugged with concrete and/or suitable material, for that portion which extends through the embankment, if a nonrepairable problem occurs within the conduit. The conduit shall consist of material which has been shown to possess the qualities necessary to perform in the environment of the specific tailings impoundment. The design life of the conduit shall be greater than the life of the mine tailings impoundment structure. The portion of the conduit through the embankment shall be completely filled with concrete, or other suitable material, and the riser portion of the conduit capped, upon abandonment of the mine tailings impoundment structure.(3-30-23)

i.All decant conduits, if under the embankment, shall have a seepage path through the impervious zone at least equivalent in length to the maximum head above the downstream end of the system. Only one third (1/3) the horizontal distance through the impervious zone will be utilized when calculating the length of the seepage path.

Collars may be used to satisfy this requirement, but all collars shall extend a minimum of three (3) feet outside the conduit. Collars shall be spaced at intervals of at least seven (7) times their height and no collar may be closer to the outer surface of the impervious zone than the distance it extends out from the conduit.(3-30-23)

j.More than two (2) decant conduits are not to be used, unless special conditions warrant. (3-30-23)

07.Freeboard. A minimum freeboard of two (2) feet plus wave height (H) shall be provided on the crest of the mine tailings impoundment structure during passage of the design inflow.

H = 1.95 (F to 1/2 power)

F = Fetch in miles across water surface at a design maximum level.(3-30-23)

08.Records. All instrumentation shall be read and recorded on a regular basis, and all records must be available for inspection by Department personnel on request.(3-30-23)

09.Inspection and Completion Reports.(3-30-23)

a.It is the responsibility of the engineer to submit test reports along with periodic inspection and progress reports to the Director.(3-30-23)

b.Upon completion of each approved stage of construction, a letter shall be sent to the Director, giving a short, narrative account covering all items of work. As-built plans shall be submitted to the Director if the completed project was substantially changed from the plans originally approved.(3-30-23)

10.Abandonment. An abandonment plan which provides a stable, maintenance-free condition when the mine tailings impoundment is no longer being regularly maintained by the owner or the owner has ceased to use the site for disposal of mine tailings slurry, shall be submitted to the Director by the owner. The plan shall provide a safe condition by providing for removal of the tailings, or construction of a maintenance-free spillway or diversion works where needed to accommodate runoff. The plan shall include provis ions to prevent water storage behind, and erosion of, the mine tailings impoundment structure and the impounded tailing. A conceptual plan which includes an engineering design report, detailed enough to provide the required cost estimate for bonding purposes, will be required prior to the approval of the proposed project. Detailed construction plans must be approved by the Director prior to implementation of any abandonment work. The Director shall notify the owner upon acceptance of completion of abandonment in accordance with the approved plan.(3-30-23)

IDAPA 37.03.05.046 (Reserved)

IDAPA 37.03.05.050 Dams Storing Tailing and Water (rule 50)

Construction of dams intended to store water in excess of the water being decanted in the tailing placement operation shall also meet the requirements for water storage reservoirs specified in the Department’s Rules for the Safety of Dams. The Director may waive any or all of these requirements if, in the opinion of the Director, sound engineering design supplied by the owner indicates such requirements are not applicable.(3-30-23)

IDAPA 37.03.05.051 (Reserved)

IDAPA 37.03.05.055 Provisions of Chapter 17, Title 42, Idaho Code (rule 55)

The provisions of Sections 42-1709 through 42-1721, Idaho Code, are a part of these rules.(3-30-23)

IDAPA 37.03.05.056 (Reserved)

37.03.10 Well Driller Licensing Rules

IDAPA 37.03.10.000 Legal Authority (rule 0)

Section 42-238, Idaho Code.(3-30-23)

IDAPA 37.03.10.001 Scope (rule 1)

These rules establish the requirements an d procedures for obtaining and renewing authorization to drill wells in the state of Idaho. The rules also establish the requirements and procedures for obtaining authorization to operate drilling equipment under the supervision of a licensed driller. The licensing rules are applicable to all individuals and companies drilling or contracting to drill wells.(3-30-23)

IDAPA 37.03.10.002 (Reserved)

IDAPA 37.03.10.010 Definitions (rule 10)

Unless the context otherwise requires, the following definitions govern these rules.(3-30-23) 01.

Abandonment. See Decommissioned Well.(3-30-23)

02.Applicant. An individual who submits to the Department a complete application for a license or operator’s permit or a company that submits a complete application for a license.(3-30-23)

03.Area of Drilling Concern. An area designated by the director in accordance with Section 42-238, Idaho Code, within which special drilling procedures and equipment are needed to prevent waste or contamination of the ground water.(3-30-23)

04.Board. The Idaho Water Resource Board.(3-30-23)

05.Bond. A cash or surety bond obtained by a licensed driller or company (the principal) payable to the director (the obligee) to provide funding for decommissioning or repair should the driller fail to comply with well construction standards, and to allow information to be collected concerning the drilling of the well if the driller fails to submit a timely, accurate driller’s report.(3-30-23)

06.Bottom Hole Temperature of an Existing or Proposed Well. The temperature of the ground water encountered in the bottom of a well or borehole.(3-30-23)

07.Company. A firm, co-partnership, corporation, or association licensed in accordance with these rules to drill or contract to drill wells.(3-30-23)

08.Compliance History. An applicant’s record of compliance with the laws and rules of Idaho and other states relating to drilling of wells.(3-30-23)

09.Continuing Education. Education or training pertinent to the drilling industry and the construction, modification or decommissioning of wells.(3-30-23)

10.Continuing Education Committee (CEC). A committee whose purpose is to review and approve activities related to continuing education credit.(3-30-23)

11.Decommissioned (Abandoned) Well. Any well which has been permanently removed from service and filled or plugged in accordance with these rules. A properly decommissioned well will not:(3-30-23)

a.Produce or accept fluids;(3-30-23)

b.Serve as a conduit for the movement of contaminants inside or outside the well casing; or

c.Allow the movement of surface or ground water into unsaturated zones, into another aquifer, or between aquifers.(3-30-23)

12.Department. The Idaho Department of Water Resources.(3-30-23)

13.Director. The director of the Idaho Department of Water Resources or his duly authorized representative.(3-30-23)

14.Drilling or Well Drilling. The act of constructing a new well, or modifying the construction, or decommissioning of an existing well.(3-30-23)

15.Drilling Permit. Authorization by the Department to drill a well as provided in Section 42-235, Idaho Code.(3-30-23)

16.Drilling Site. The location of the drill rig and immediate area where the drill rig and auxiliary equipment are set up to drill a well.(3-30-23)

17.Global Positioning System (GPS). A global navigational receiver unit and satellite system used to triangulate a geographic position.(3-30-23)

18.License. A certificate issued by the director to an individual or a company upon meeting the requirements of Section 42-238, Idaho Code, and these rules authorizing the drilling of wells permitted in accordance with Section 42-235, Idaho Code.(3-30-23)

19.Licensed Driller. An individual having a license to drill wells and who is authorized to supervise operators in the state of Idaho to assure compliance with well construction standards.(3-30-23)

20.Modify. To deepen a well, increase or decrease the diameter of the casing or the well bore, install a liner, place a screen, perforate existing casing or liners, alter the seal between the casing and the well bore, or alter the well from its original construction.(3-30-23)

21.Operator. Any person authorized to operate drilling equipment for a licensed company or licensed driller after obtaining an operator’s permit from the Director.(3-30-23)

22.Operator’s Permit. A certificate issued by the director upon meeting the requirements of Section 42-238, Idaho Code, and these rules authorizing the holder to operate drill equipment.(3-30-23)

23.Principal Driller. A licensed driller designated by a company to supervise the company’s drilling operations and activities.(3-30-23)

24.Start Card. An expedited drilling permit for the construction of cold-water Single Family residential wells.(3-30-23)

25.Well. An artificial excavation or opening in the ground more than eighteen (18) feet in vertical depth below land surface by which ground water of any temperature is sought or obtained. The depth of a well is determined by measuring the maximum vertical distance between the land surface and the deepest portion of the well.

Any water encountered in the well is obtained for the purpose of these rules. Well also means any waste disposal and injection well as defined by Section 42-3902, Idaho Code.(3-30-23)

26.Well Construction Standards. IDAPA 37.03.09, “Well Construction Standards Rules,” adopted by the board.(3-30-23)

27.Well Driller’s Report or Driller’s Report. A report required by Section 42-238, Idaho Code, describing drilling of the well and supplying information required on forms provided by the Department.(3-30-23)

28.Well Log. A diary maintained at the drilling site consistent with Section 42-238, Idaho Code.

29.Well Rig or Drill Rig. Any power-driven percussion, rotary, boring, digging, jetting, augering, or any other power-driven mechanical equipment used in the drilling of a well.(3-30-23)

IDAPA 37.03.10.011 (Reserved)

IDAPA 37.03.10.020 License Applicability (rule 20)

01.Wells to be Drilled by Licensed Drillers. A well shall only be drilled by a licensed driller, or an operator working under the supervision of a licensed driller except that a property owner, who is not licensed, can construct a well on his property for his own use without the aid of power-driven mechanical equipment.(3-30-23)

02.Operators to Have Permits. Any person authorized to operate drilling equipment under the supervision of a licensed driller shall possess an operator’s permit as provided in these rules.(3-30-23)

03.Company to be Licensed. No company shall drill or contract to drill a well or wells unless the company has been issued a license and has employed a principal driller as described in accordance with these rules.

04.Decommissioning Wells. Only licensed drillers and operators may decommission wells, except that wells may be decommissioned by the owner after receiving a specific waiver from the Director.(3-30-23)

IDAPA 37.03.10.021 (Reserved)

IDAPA 37.03.10.030 Obtaining a Driller’s License (rule 30)

01.Experience Requirements.

a.An applicant for a driller’s license shall submit evidence to establish a minimum of twenty-four (24) months of drilling experience. Twelve (12) of the twenty-four (24) months of drilling experience must have occurred within the five (5) year period immediately preceding the filing of the application. An applicant will be credited with one (1) month of drilling experience for each one hundred sixty (160) hours of employment as a driller or operator, or the equivalent, as determined by the director. Experience drilling monitoring wells, geothermal wells or other cased wells will be credited as experience by the Director if the equipment and drilling methods are applicable to water well construction.(3-30-23)

02.Application Requirements. An individual desiring a license shall file with the Department a completed application on a form provided by the Department accompanied by the following:(3-30-23)

a. The application fee required by Section 42-238, Idaho Code.(3-30-23)

b.Written documentation of drilling experience and compliance history.(3-30-23)

c.Successful completion of classroom study in geology, well drilling, map reading, and other related subjects may be substituted for up to, but not exceeding, twelve (12) months of drilling experience. The director will determine the number of months of classroom study, up to twelve (12), to be credited as experience.(3-30-23)

d.The names and addresses of up to three (3) references to confirm the applicant’s drilling experience may be requested at the Department’s discretion.(3-30-23)

03.Examination. An applicant determined by the director to have adequate experience and an acceptable compliance history, as confirmed by references acceptable to the director, is eligible to take a written examination.(3-30-23)

IDAPA 37.03.10.031 Obtaining a Company License (rule 31)

01.Application Requirements.

A company shall file with the Department a complete application for a company license upon a form provided by the Department to be accompanied by the following:(3-30-23)

a.The names and addresses of up to three (3) persons not affiliated with the company, whom the Department can contact for information regarding the company’s past well drilling operations, may be requested at the Department’s discretion.(3-30-23)

b.Designation of a principal driller who shall be a full-time employee of the company and shall drill wells only for the company. A licensed driller who renders only occasional, part-time or consulting drilling services to or for a company may not be designated as the principal driller.(3-30-23)

c.The names and addresses of drillers and operators presently employed.(3-30-23)

IDAPA 37.03.10.032 Obtaining an Operator’s Permit (rule 32)

01.Experience Requirements.

a. An applicant for an operator’s permit shall submit evidence to establish a minimum of 600 hours of well drilling experience acquired while in the presence of a licensed driller or operator. Evidence may include but is not limited to: payroll information, daily logs signed by a licensed driller or operator, or other documentation approved by the Director.(3-30-23)

02.Application Requirements. An individual desiring an operator’s permit shall file with the Department a completed application on a form provided by the Department accompanied by the following: (3-30-23)

a. The fee required by Section 42-238, Idaho Code.(3-30-23)

b.Attendance records, completion certificates, or other documents that verify attendance and completion of two (2) continuing education credit hours, approved by the CEC, earned while in training to become an operator.(3-30-23)

03.Written Examination. Applicants for an operator’s permit shall pass an examination pursuant to these rules.(3-30-23)

04.Operator Drills Only for Licensed Driller or Company. An operator shall drill only for the licensed driller or company approved by the director. If an operator changes employment to another licensed driller or company, a new operator’s permit application or transfer form shall be filed as provided in this rule.(3-30-23)

IDAPA 37.03.10.033 Processing Application for a Driller’s License or Opera

TOR’S PERMIT

(RULE 33).

01.Incomplete Application. If an application is incomplete, not properly signed, or does not include the information required by these rules, the Department will advise the applicant in writing of the deficiency. If the deficiencies are not satisfied within ninety (90) days of sending the notice of the deficiency, the application will be void. The application fee is not refundable.(3-30-23)

02.Issuance of License. If the director, upon review of the application, determines that an applicant for license is qualified and the driller has subsequently taken and passed an examination, a notice will be sent to the applicant requesting a bond, in an amount determined in accordance with Rule 60, be filed with the Department.

Upon receipt of a satisfactory bond, the director will issue a license to the applicant.(3-30-23)

03.Issuance of Operator’s Permits. The Department will mail a notice and operator’s permit card to the principal driller on behalf of the applicant if the application is complete and the applicant meets the qualifications described in these rules.(3-30-23)

04.Driller’s License or Operator's Permit Issued With Conditions or Denial of License or Operator's Permit. The Director may issue a license or operator’s permit with specific conditions or limitations based on the applicant’s experience and compliance history. The Director may refuse to issue or renew a driller’s license permanently or for a designated period if the driller has previously constructed wells improperly or constructed a well without a valid driller’s license. If the Director determines that the applicant is not qualified, the Director will deny the application. Notice of a denied application or a conditioned license or operator’s permit will be given to the applicant in accordance with IDAPA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources.”(3-30-23)

IDAPA 37.03.10.034 Examination Procedures (rule 34)

01.Written Examination. Written examinations will be offered at Department offices on the first Monday of each quarter. If the first Monday is a legal holiday, written examination will be offered on the first Tuesday. Re-examination may be taken at a regularly scheduled examination date during a following quarter and shall be scheduled with the Department office originally testing the applicant.(3-30-23)

02.Verbal or Oral Examination. Successful passage of a verbal examination may satisfy all or a part of the written testing requirements under the following circumstances:(3-30-23)

a.The applicant requests a verbal examination and shows cause acceptable to the director why the examination should be verbal rather than written. Applicants desiring to take the examination verbally shall request that a verbal examination be scheduled allowing at least fifteen (15) days to set an examination date.(3-30-23)

b.The director determines that because of the applicant’s compliance history, additional testing is needed to determine the applicant’s qualifications.(3-30-23)

03.Examination Scoring. A score of seventy percent (70%) or higher is a passing score.(3-30-23)

04.Assistance Must Be Authorized. The use of written materials, equipment, or other individuals to assist an applicant during an examination is prohibited unless specifically authorized by the Department. An applicant receiving unauthorized assistance during an examination may be disqualified and the application may be rejected. An application filed by a disqualified applicant will not be processed for a period of up to one (1) year from the time of disqualification.(3-30-23)

IDAPA 37.03.10.035 Expiration and Renewal of Driller Licenses and Operator Permits (rule 35)

01.Expiration of Licenses and Permits. All driller licenses and operator permits expire at the end of the licensing period for which they are issued. The licensing period begins April 1 and ends March 31 of the second year following issuance.(3-30-23)

02.Renewal Application. A license or operator permit may be renewed by submitting a renewal application including the following:(3-30-23)

a.A completed application on a form provided by the Department. An application for renewal shall be signed by the principal driller.(3-30-23)

b.The renewal fee required by Section 42-238, Idaho Code.(3-30-23)

c.A new bond or continuation certificate for an existing bond covering all drillers and operators employed by the company.(3-30-23)

03.Continuing Education Requirements. Credit hours not to exceed twenty (20) are required for renewal of a driller license or operator permit for any licensing period.(3-30-23)

IDAPA 37.03.10.036 Processing Application to Renew License or Operator’s Permit (rule 36)

01.Processing Applications for Renewal.

The Department shall receive a complete application for renewal no later than March 15 to assure that the license or operator’s permit will remain in force without interruption. If the director determines that the application is complete and the applicant is qualified, the license or operator’s permit will be renewed for the period ending on March 31 of the second year after approval of the renewal.

02.Regulatory Compliance Required for Renewals. A license or operator’s permit will not be renewed if the applicant has not submitted all required driller’s reports, applications for drilling permits, fees, agreed civil penalties, has not complied with all orders requiring repair or decommissioning of improperly constructed wells or is not otherwise in compliance with Sections 42-235 and 42-238, Idaho Code, and the applicable rules. (3-30-23)

03.Compliance History. If the Director determines that the applicant has exhibited an unacceptable compliance history, the Director may deny renewal, refuse renewal for a specified time, or renew with conditions, including but not limited to an increased bond amount.(3-30-23)

04.Renewal of Expired Licenses or Operator’s Permits. A license or an operator’s permit which has expired or otherwise not been in effect for a period not exceeding three (3) years shall be renewed in accordance with the requirements of Rule 35. An applicant for renewal shall provide verification of earned credit hours required for the entire period since the license or operator’s permit was last issued. If a license or operator’s permit has been expired or otherwise not effective for a period of more than three (3) years, a new application shall be submitted in accordance with these Rules. The director may waive the examination requirement if the applicant has been previously licensed or permitted in the state of Idaho.(3-30-23)

05.Reuse of Identification Numbers. The identification number assigned to a license by the Department will not be reused if the license has been expired or otherwise not in effect for three (3) years or more except, at the director’s discretion, the number may be reissued to the original owner.(3-30-23)

06.Condition or Denial of an Application for Renewal. If the Director determines that the applicant has not or cannot fully comply with these rules, a license or operator’s permit may be issued with conditions. If the Director determines that the applicant is not qualified or has documented violations of well drilling laws and/or rules, the Director will deny the application. When there are documented violations of well drilling laws and/or rules, including well construction standards, the Director may issue a conditional license or operator's permit or deny an application based on the applicant's compliance history. Notice of a denied application or a conditioned license will be given as provided in IDAPA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources.”

IDAPA 37.03.10.037 (Reserved)

IDAPA 37.03.10.050 Duties and Responsibilities of Drillers, Companies and Operators (rule 50)

01.Licensed Drillers and Principal Drillers.

All licensed drillers and principal drillers shall:

a.Allow drilling only by those authorized by and under the supervision required by these rules and according to any conditions of the license or permit.(3-30-23)

b.Complete each well in compliance with IDAPA 37.03.09, “Well Construction Standards Rules,” and drilling permit conditions.(3-30-23)

c.Maintain a valid cash or surety bond, as defined in Rule 60.(3-30-23)

d.Display the driller or company license number in a conspicuous place on the drill rig using a metal identification plate issued by the Department or other permanent marking approved by the director. If requested by the applicant, one plate will be issued upon initial licensure. Replacement plates or additional plates are available for a fee.(3-30-23)

e.Keep current the Department’s list of operators and drillers employed by the licensed driller or company, including current addresses for the company, drillers, and operators. The licensed driller or principal driller shall be held responsible for all drilling activity of a driller or operator under their supervision until such notification has been submitted in writing to the Department that the driller or operator is no longer employed by the licensed driller or company.(3-30-23)

f.Have at the drilling site the driller’s license and drilling permit or other written authorization from the director to drill the well.(3-30-23)

g.Obtain specific written authorization from the director to drill:(3-30-23)

i.In contaminated areas identified by the Department;(3-30-23)

ii.In areas of drilling concern designated by the Department;(3-30-23)

iii.A public drinking water supply well, as defined in IDAPA 58.01.08, “Idaho Rules for Public Drinking Water Systems”;(3-30-23)

iv.Low temperature geothermal resource wells; and(3-30-23)

v.Geothermal resource wells.(3-30-23)

h.Monitor and record bottom-hole temperature in areas where low temperature geothermal resources are known or suspected or when the well is being constructed pursuant to IDAPA 37.03.09, Rule 30, as a low temperature geothermal resource well. Bottom-hole temperature of every well being constructed pursuant to IDAPA 37.03.09, Rule 30, must be measured, recorded, and reported on the well drillers report.(3-30-23)

i.Maintain a daily well log at the drilling site acceptable to the Department and as required by Section 42-238(11), Idaho Code. Pertinent data required to be recorded on the daily log must include information sufficient to complete a well drillers report acceptable to the Director. The driller shall retain the well log for at least one (1) year after the driller’s report is submitted to the Department.(3-30-23)

j.Submit driller’s reports, acceptable to the Director, on forms approved by the Department within thirty (30) days following removal of the drill rig from the drilling site at completion of the well. Driller’s reports shall be prepared from information recorded on the daily well log. Driller’s reports returned to the driller due to deficiencies must be corrected and returned to the Department within thirty (30) days of mailing by the Department.

k.Attach a well tag supplied by the Department to every well drilled for which a drilling permit is required. The tag shall be affixed permanently to the casing, or other permanent object attached to the well, by a method approved by the Director prior to removing the well rig from the drilling site.(3-30-23)

l.Cause all drilling activity under the supervision of the driller to cease when the driller’s license expires, becomes invalid, or is suspended or revoked.(3-30-23)

02.Companies. Companies shall:(3-30-23)

a.Have a principal driller always designated with the Department and keep current the Department’s contact information to include a valid phone number for the principal driller.(3-30-23)

b.Notify the Department within ten (10) days of the principal driller leaving employment with the company. The company’s license shall immediately become void and of no effect when the principal driller leaves employment with the company and shall remain so until the Department has been notified in writing that a new principal driller has been employed and designated by the company. Failure to designate a principal driller within ninety (90) days of the departure of the designated principal driller is cause for the director to take action to cancel the company’s license.(3-30-23)

c.Always maintain a bond as required in Rule 60.(3-30-23)

03.Operators. Operators shall:(3-30-23)

a.Have in their possession a valid operator’s permit while operating drill rigs or drilling equipment.

b.Onl y drill wells as authorized by the operator’s permit.(3-30-23)

c.Maintain a complete and accurate well log at the drilling site.(3-30-23)

d.Co-sign a driller’s report with the licensed driller upon completion of the well.(3-30-23)

IDAPA 37.03.10.051 (Reserved)

IDAPA 37.03.10.060 Bonding (rule 60)

01.Bonding Requirements.

Each licensed company shall submit a surety bond or cash bond in an amount determined by the director, within the limits of 42-238, Idaho Code, covering all drillers and operators employed by the company, payable to the director for the licensing period. If the licensed driller drills wells as an individual and not for a company, a separate bond must be filed with the director.(3-30-23)

a.The amount of the bond will be determined by the director based on the applicant’s compliance history, the size and depth of wells the applicant proposes to construct and is authorized to drill, the complexity of the wells, the resource to be recovered, the area of operation of the applicant, the number of drillers and operators employed by a company, and other relevant factors.(3-30-23)

b.The amount of the bond required prior to drilling in an area of drilling concern, and/or drilling monitoring wells, public water supply wells, or wells with a bottom hole temperature meeting the definition of a low temperature geothermal resource as defined by Section 42-233, Idaho Code, shall be the maximum amount allowed by Section 42-238, Idaho Code.(3-30-23)

c.All bonds and continuation certificates shall commence on April 1 or date of licensure for a new company and be valid until March 31 of the year the driller or company license expires. Bonds and continuation certificates must be on a form approved or provided by the Department.(3-30-23)

02.Cash Bonds.(3-30-23)

a.Cash bonds shall be in a separate account readily accessible to the director for use as provided in these rules. The director will review cash bond proposals made by an applicant. Cash bonds shall be retained in financial institutions within the state of Idaho unless waived by the director.(3-30-23)

b.The director will retain cash bonds for two (2) years from the date the driller requests that the bond be released unless replaced by another bond or the director determines that all wells drilled by the driller satisfy well construction standards. The release of a cash bond must be requested in writing.(3-30-23)

03.License Void Without Bond. If the surety cancels a bond, the bond expires or otherwise becomes non-effective during the term of a license, the license shall immediately become void and of no further effect until an adequate replacement bond is received by the Department.(3-30-23)

IDAPA 37.03.10.061 (Reserved)

IDAPA 37.03.10.070 Continuing Education (rule 70)

01.Requirements. Ev ery licensed driller or operator must earn the applicable number of credit hours consistent with these rules. The credit hours must be obtained during the licensing period preceding the renewal application.(3-30-23)

02.Earning Credit Hours. Credit hours may be earned for time spent in attendance at workshops, seminars, short courses, and other educational opportunities devoted to well drilling or related subjects acceptable to the Director or approved by the continuing education committee (CEC) in compliance with the CEC guidelines.

These may include completion of college courses, correspondence courses, or online courses.(3-30-23)

03.Documentation. Documentation in support of credit hours is the responsibility of each licensed driller and operator. Records required include but are not limited to:(3-30-23)

a.A log showing the type of course or activity, sponsoring organization, duration, instructor’s name, and credit hours.(3-30-23)

b.Attendance verification records in the form of completion certificates or other official documents providing evidence of attendance and completion.(3-30-23)

04.Submittal and Maintenance of Records. Copies of continuing education records for the preceding license period shall be submitted with applications to renew licenses or permits. These records shall be maintained by the applicant for a period of three (3) years and shall be available for review by the Department at the request of the director.(3-30-23)

05.Insufficient Credit Hours. If at the time of renewal, the applicant is unable to provide verification of the required credit hours, the director will deny renewal of the driller’s license or operator’s permit, except as follows:(3-30-23)

a.The director may withhold action on an application for renewal for a period not to exceed ninety (90) days to allow the applicant to provide verification of the required credit hours. The applicant is not authorized to drill until the verification is provided and the renewal is issued.(3-30-23)

b.The director may exempt an applicant from all or part of the continuing education requirements if the applicant served on active duty in the armed forces of the United States for one hundred twenty (120) consecutive days or more during the licensing period prior to filing the application for renewal; or the applicant suffered physical disability, serious illness, or other extenuating circumstances that prevented the applicant from earning the required units.(3-30-23)

06.Out-of-State Residents. The continuing education requirements for a driller’s license or operator’s permit are the same for both resident and non-resident applicants.(3-30-23)

07.Responsibility for Education Development and Implementation. The Department’s responsibility to develop and implement a program for continuing education may, at the Director’s discretion, be delegated through a memorandum of understanding (MOU) and/or contract to external providers such as the Idaho Ground Water Association (IGWA).(3-30-23)

IDAPA 37.03.10.071 (Reserved)

IDAPA 37.03.10.090 Enforcement (rule 90)

01.Violations.

Violations of these rules or Sections 42-235 or 42-238, Idaho Code, will be enforced as provided in Sections 42-238 and 42-1701B, Idaho Code.(3-30-23)

02.Enforcement Procedures. Department procedures and guidance for administrative enforcement are published on the Department’s website and available upon request.(3-30-23)

IDAPA 37.03.10.091 (Reserved)

37.03.07 Stream Channel Alteration Rules

IDAPA 37.03.07.000 Legal Authority (rule 0)

The purpose of these rules and minimum standards is to specify procedures for processing and considering applications for stream channel alterations under the provisions of Title 42, Chapter 38, Idaho Code.(3-18-22)

IDAPA 37.03.07.001 Title and Scope (rule 1)

01.Title.

These rules are titled IDAPA 37.03.07, “Stream Channel Alteration Rules.”(3-18-22)

02.Scope. The minimum standards are intended to enable the Director to process, in a short period of time, those applications which are of a common type and which do not propose alterations which will be a hazard to the stream channel and its environment. It is intended that these rules and minimum standards be administered in a reasonable manner, giving due consideration, to all factors affecting the stream and adjacent property.(3-18-22)

IDAPA 37.03.07.002 (Reserved)

IDAPA 37.03.07.010 Definitions (rule 10)

01.Alteration.

To obstruct, diminish, destroy, alter, modify, relocate or change the natural existing shape of the channel or to change the direction of flow of water of any stream channel within or below the mean high water mark. It includes removal of material from the stream channel and emplacement of material or structures in or across the stream channel where the material or structure has the potential to affect flow in the channel as determined by the director.(3-18-22)

02.Applicant. Any individual, partnership, company, corporation, municipality, county, state or federal agency, their agent, or other entity proposing to alter a stream channel or actually engaged in constructing a channel alteration, whether authorized or not.(3-18-22)

03.Base Flood Elevation. The Base Flood (BF) is referred to as the one hundred (100) year flood and is a measure of flood magnitude based on probability. The BF has a one percent chance of occurring or being exceeded in any given year, with the Base Flood Elevation (BFE) being the level of flooding reached during the BF or the one hundred (100) year flood event.(3-18-22)

04.Board. The Idaho Water Resource Board.(3-18-22)

05.Continuously Flowing Water. A sufficient flow of water that could provide for migration and movement of fish, and excludes those reaches of streams which, in their natural state, normally go dry at the location of the proposed alteration. IDWR will assume, subject to information to the contrary, that the USGS quadrangle maps accurately depict whether a stream reach is continuously flowing, at the location of the proposed alteration. Such exclusion does not apply to minor flood channels that are a part of a stream which is continuously flowing in the reach where the alteration is located. Also, such exclusion does not apply to streams which may be dry as a result of upstream diversion or storage of water.(3-18-22)

06.Department. The Idaho Department of Water Resources.(3-18-22)

07.Drop Structures, Sills and Barbs. Physical obstructions placed within a stream channel for the purpose of stabilizing the channel by decreasing stream gradient and velocity and by dissipating stream energy.

08.Director. The Director of the Idaho Department of Water Resources.(3-18-22)

09.Human Life Support System. Any artificial or natural system that provides all or some of the items (such as oxygen, food, water, control of temperature, or disposition of carbon dioxide) necessary for maintaining human life or health.(3-18-22)

10.Mean High Water Mark. As defined in Idaho Code, § 42-3802(h), the mean high water mark is water level corresponding to the “natural or ordinary high water mark” and is the line which the water impresses on the soil by covering it for sufficient periods of time to deprive the soil of its terrestrial vegetation and destroy its value for commonly accepted agricultural purposes.(3-18-22)

11.Non-Powered Equipment. Equipment which is powered only by human strength.(3-18-22)

12.Plans. Maps, sketches, engineering drawings, photos, work descriptions and specifications sufficient to describe the extent, nature, and location of the proposed stream channel alteration and the proposed method of accomplishing the alteration.(3-18-22)

13.Powered Equipment. Equipment which is powered by means other than human strength such as a gasoline engine or electric motor.(3-18-22)

14.Repair. Any work needed or accomplished, to protect, maintain, or restore any water diversion structure and the associated stream channel upstream and downstream as necessary for the efficient operation of the water diversion structure.(3-18-22)

15.Stream Channel. A natural water course of perceptible extent with definite beds and banks which confines and conducts continuously flowing water. The channel referred to is that which exists at the present time, regardless of where the channel may have been located at any time in the past. For the purposes of these rules only, the beds of lakes and reservoir pool areas are not considered to be stream channels.(3-18-22)

IDAPA 37.03.07.011 (Reserved)

IDAPA 37.03.07.025 Exemptions (rule 25)

01.Work on Existing or Propos ed Reservoir Projects. Permits are not required under the provisions of Title 42, Chapter 38 for construction work on any existing or proposed reservoir project, including the dam, and such areas downstream as the Director may determine is reasonably necessary for construction and maintenance of the dam.(3-18-22)

02.Snake and Clearwater Rivers. Permits are not required for work within that portion of the Snake and Clearwater rivers from the state boundary upstream to the upper boundary of the Port of Lewiston Port District as it now exists or may exist in the future.(3-18-22)

03.Cleaning, Maintenance, Construction or Repair Work. No permit is required of a water user or his agent to clean, maintain, construct, or repair any diversion structure, canal, ditch, or lateral or to remove any obstruction from a stream channel which is interfering with the delivery of any water under a valid existing water right or water right permit.(3-18-22)

04.Removal of Debris. No permit is required for removal of debris from a stream channel provided that no equipment will be working in the channel and all material removed will be disposed of at some point outside the channel where it cannot again reenter the channel.(3-18-22)

05.Mining Operations Using Non-Powered Equipment. No permit is required for mining activities using non-powered equipment to move one-quarter (1/4) cubic yard per hour or less below the mean high water mark, except as otherwise described in Rule 61.05.(3-18-22)

IDAPA 37.03.07.026 (Reserved)

IDAPA 37.03.07.030 Applications (rule 30)

01.Alteration of Stream Channels Permit Required.

No person shall engage in any activity which will alter a stream channel without first applying for a permit as provided by § 42-3803, Idaho Code.(3-18-22)

02.Joint Application Permit Form. The Department of Water Resources, Department of Lands, and the U.S. Army Corps of Engineers have developed a joint application for permit form which will suffice for the required permit application under the Stream Protection Act. An application should be filed at least sixty (60) days before the applicant proposes to start the construction and shall be upon the joint application form furnished by the Department. The application shall be accompanied by plans which clearly describe the nature and purpose of the proposed work.(3-18-22)

03.Applicant Following Minimum Standards. In those cases where the applicant intends to follow the minimum standards (Rule 055), detailed plans may be eliminated by referring to the specific minimum standard; however, drawings necessary to adequately define the extent, purpose, and location of the work may be required.

Plans shall include some reference to water surface elevations and stream boundaries to facilitate review. The application should show the mean high water mark on the plans; however, any water surface or water line reference available will be helpful as long as this reference is described. (Examples: present water surface, low water, high water.)(3-18-22)

04.Submission of Copies. The applicant shall submit one (1) copy of all necessary plans along with the application form. When drawings submitted are larger than eight and one half by eleven (8 1/2 x 11), the applicant shall provide the number of copies specified by the department.(3-18-22)

IDAPA 37.03.07.031 (Reserved)

IDAPA 37.03.07.035 Application Review (rule 35)

01.Prior to Issuance of Permit.

The following items shall be among those considered by the Director prior to issuing a permit:(3-18-22)

a.What is the purpose of doing the work?(3-18-22)

b.What is the necessity and justification for the proposed alteration?(3-18-22)

c.Is the proposal a reasonable means of accomplishing the purpose?(3-18-22)

d.Will the alteration be a permanent solution?(3-18-22)

e.Will the alteration pass anticipated water flows without creating harmful flooding or erosion problems upstream or downstream?(3-18-22)

f.What effect will the alteration have on fish habitat?(3-18-22)

g.Will the materials used or the removal of ground cover create turbidity or other water quality problems?(3-18-22)

h.Will the alteration interfere with recreational use of the stream?(3-18-22)

i.Will the alteration detract from the aesthetic beauty of the area?(3-18-22)

j.What modification or alternative solutions are reasonably possible which would reduce the disturbance to the stream channel and its environment and/or better accomplish the desired goal of the proposed alteration?(3-18-22)

k.Is the alteration to be accomplished in accordance with the adopted minimum standards? (3-18-22)

l.Are there public safety factors to consider?(3-18-22)

02.Proposed Alteration Which Does Not Follow Minimum Standards. In those cases where a proposed alteration does not follow the minimum standards, a copy of the application will be sent for review to those state agencies requesting notification. The Director shall provide for review by the Department of Lands, copies of applications on navigable rivers. The Director will provide a copy of any other application requested by the Department of Lands and may request review by other state agencies regardless of whether or not the proposed alteration will comply with the minimum standards.(3-18-22)

IDAPA 37.03.07.036 (Reserved)

IDAPA 37.03.07.040 Approval (rule 40)

01.Conformance to Application. All work shall be done in accordance with the approved application, subject to any conditions specified by the department.(3-18-22)

02.Permits Allowed Without Review. A permit may be approved by the Director of the Department of Water Resources without review by other agencies in situations where the work is of a nature not uncommon to the particular area and where it is clear that the work will not seriously degrade the stream values except on navigable rivers which require review by the Department of Lands. All work approved in this manner shall be accomplished in accordance with the minimum standards.(3-18-22)

03.Reinstatement of Expired Permit. A permit which has expired may be reinstated by the Director after review by other agencies as determined by the Director.(3-18-22)

IDAPA 37.03.07.041 (Reserved)

IDAPA 37.03.07.045 Enforcement of Act (rule 45)

01.Written Orders Issued by Designated E mployees of Department. Employees of the Department designated by the Director may issue written orders directing an applicant to cease and desist, to ensure proper notice to applicants who are found to be altering a stream without a permit or not in compliance with the conditions of a permit. Such orders shall be in effect immediately upon issuance and will continue in force until a permit is issued or until the order is rescinded by the Director.(3-18-22)

02.Failure to Comply with Stream Protection Act. Failure to comply with any of the provisions of the Stream Protection Act (Chapter 38, Title 42, Idaho Code), may result in issuance of an Idaho uniform citation and/ or the cancellation of any permit by the Director without further notice and the pursuit in a court of competent jurisdiction, such civil or criminal remedies as may be appropriate and provided by law. The Director may allow reasonable time for an applicant to complete stabilization and restoration work.(3-18-22)

IDAPA 37.03.07.046 (Reserved)

IDAPA 37.03.07.050 Emergency Waiver (rule 50)

01.Waiver of Provisions of Stream Protection Act.

Section 42-3808, Idaho Code, provides for waiver of the provisions of the Stream Protection Act in emergency situations where immediate action must be taken to protect life or property including growing crops. The Director will not consider failure to submit an application for a stream channel alteration far enough ahead of the desired starting time of the construction work as an emergency situation.(3-18-22)

02.Verbal Waivers. A verbal waiver may be granted initially; however, all verbal requests for waivers shall be followed up by the applicant in writing within fifteen (15) days of any initial authorization to do work. If the applicant is unable to contact the Director to obtain an emergency waiver, he may proceed with emergency work; however, he must contact the Director as soon as possible thereafter. Proving that a bonafide emergency did actually exist will be the responsibility of the applicant.(3-18-22)

03.Emergency Waiver. Work authorized by an emergency waiver shall be limited to only that which is necessary to safeguard life or property, including growing crops, during the period of emergency.(3-18-22)

04.Conformance to Conditions of Waiver. The applicant shall adhere to all conditions set by the Director as part of a waiver.(3-18-22)

05.Waivers Granted by Designated Employees. The Director may delegate the authority to grant waivers to designated employees of the Department. Names and telephone numbers of such employees will be made available to any interested applicant upon request.(3-18-22)

IDAPA 37.03.07.051 (Reserved)

IDAPA 37.03.07.055 Minimum Standards (rule 55)

These standards are intended to cover the ordinary type of stream channel alteration and to prescribe minimum conditions for approval of such construction. Unless otherwise provided in a permit, these standards shall govern all stream channel alterations in this state. An applicant should not assume that because an application utilizes methods set forth in these standards it will automatically be approved. These minimum standards include the following items:

01.Construction Procedures.(3-18-22)

02.Dumped Rock Riprap.(3-18-22)

03.Drop Structures, Sills and Barbs.(3-18-22)

04.Culverts and Bridges.(3-18-22)

05.Removal of Sand and Gravel Deposits.(3-18-22)

06.Small Scale Mining with Suction Dredges, Powered Sluices, or Non-Powered Equipment.

07.Piling.(3-18-22)

08.Pipe Crossings.(3-18-22)

09.Concrete Plank Boat Launch Ramps.(3-18-22)

IDAPA 37.03.07.056 Construction Procedures (rule 56)

01.Conformance to Procedures. Co nstruction shall be done in accordance with the following procedures unless specific approval of other procedures has been given by the Director. When an applicant desires to proceed in a manner different from the following, such procedures should be described on the application. (3-18-22)

02.Operation of Construction Equipment. No construction equipment shall be operated below the existing water surface without specific approval from the Director except as follows: Fording the stream at one (1) location only will be permitted unless otherwise specified; however, vehicles and equipment will not be permitted to push or pull material along the streambed below the existing water level. Work below the water which is essential for preparation of culvert bedding or approved footing installations shall be permitted to the extent that it does not create unnecessary turbidity or stream channel disturbance. Frequent fording will not be permitted in areas where extensive turbidity will be created.(3-18-22)

03.Temporary Structures. Any temporary crossings, bridge supports, cofferdams, or other structures that will be needed during the period of construction shall be designed to handle high flows that could be anticipated during the construction period. All structures shall be completely removed from the stream channel at the conclusion of construction and the area shall be restored to a natural appearance.(3-18-22)

04.Minimizing Disturbance of Area. Care shall be taken to cause only the minimum necessary disturbance to the natural appearance of the area. Streambank vegetation shall be protected except where its removal is absolutely necessary for completion of the work adjacent to the stream channel.(3-18-22)

05.Disposal of Removed Materials. Any vegetation, debris, or other material removed during construction shall be disposed of at some location out of the stream channel where it cannot reenter the channel during high stream flows.(3-18-22)

06.New Cut of Fill Slopes. All new cut or fill slopes that will not be protected with some form of riprap shall be seeded with grass and planted with native vegetation to prevent erosion.(3-18-22)

07.Fill Material. All fill material shall be placed and compacted in horizontal lifts. Areas to be filled shall be cleared of all vegetation, debris and other materials that would be objectionable in the fill.(3-18-22)

08.Limitations on Construction Period. The Director may limit the period of construction as needed to minimize conflicts with fish migration and spawning, recreation use, and other uses.(3-18-22)

IDAPA 37.03.07.057 Dumped Rock Riprap (rule 57)

01.Placement of Riprap. Riprap shall be placed on a granular bedding material or a compact and stable embankment.(3-18-22)

02.Sideslopes of Riprap. Sideslopes of riprap shall not be steeper than 2:1 (2’ horizontal to 1’ vertical) except at ends of culverts and at bridge approaches where a 1 1/2:1 sideslope is standard.(3-18-22)

03.Minimum Thickness of Riprap. The minimum thickness of the riprap layer shall equal the dimension of the largest size riprap rock used or be eighteen (18) inches, whichever is greater. When riprap will be placed below high water level, the thickness of the layer shall be fifty percent (50%) greater than specified below.

04.Riprap Protection. Riprap protection must extend at least one (1) foot above the anticipated high water surface elevation in the stream.(3-18-22)

05.Rock Used for Riprap. Rock for riprap shall consist of sound, dense, durable, angular rock fragments, resistant to weathering and free from large quantities of soil, shale, and organic matter. The length of a rock shall not be more than three (3) times its width or thickness. Rounded cobbles, boulders, and streambed gravels are not acceptable as dumped riprap.(3-18-22)

06.Size and Gradation of Riprap. Riprap size and gradation are commonly determined in terms of the weight of riprap rock. The average size of riprap rock shall be at least as large as the maximum size rock that the stream is capable of moving. The maximum size of riprap rock used shall be two (2) to five (5) times larger than the average size.(3-18-22)

07.Methods Used for Determining Gradation of Riprap. There are many methods used for determining the gradation of riprap rock. One of these many acceptable methods is shown in Table 1 below. Another acceptable method is the Far West States (FWS) method shown in APPENDIX A - Table 1A.

Table 1 – GRADATION OF RIPRAP IN POUNDS Max. Weight of Stone required (lbs)

Min. and Max. Range in weight of Stones (lbs)

Weight Range 75 percent of Stones (lbs) 15025 - 15050 - 150 20025 - 20050 - 200 25025 - 25050 - 250 40025 - 400100 - 400 60025 - 600150 - 600 80025 - 800200 - 800 100050 - 1000250 - 1000 130050 - 1300325 - 1300 160050 - 1600400 - 1600 200075 - 2000600 - 2000 2700100 - 2700800 - 2700

08.Use of Filter Material. A blanket of granular filter material or filter fabric shall be placed between the riprap layer and the bank in all cases where the bank is composed of erodible material that may be washed out from between the riprap rock. Filter material shall consist of a layer of well-graded gravel and coarse sand at least six (6) inches thick.(3-18-22)

09.Toe Protection. Some suitable form of toe protection shall be provided for riprap located on erodible streambed material.(3-18-22)

a.Various acceptable methods of providing toe protection are shown in APPENDIX B, Figure 2 at the end of this chapter.(3-18-22)

b.In addition to the approved methods of providing toe protection as shown in APPENDIX B, any other reasonable method will be considered by the Director during review of a proposed project.(3-18-22)

10.Extension of Riprap Area. Riprap shall extend far enough upstream and downstream to reach stable areas, unless the riprap is protected against undermining at its ends by the method shown in APPENDIX C, Figure 3 at the end of this chapter. On extremely long riprap sections, it is recommended that similar cutoff sections be used at several intermediate points to reduce the hazard that would be created if failure of the riprap occurred at any one (1) location.(3-18-22)

11.Finished Surface. Placement shall result in a smooth, even finished surface. Compaction is not necessary.(3-18-22)

12.Placement of Riprap. The full course thickness of the riprap shall be placed in one (1) operation.

Dumping riprap long distances down the bank or pushing it over the top of the bank with a dozer shall be avoided if possible. Material should be placed with a backhoe, loader, or dragline. Dumping material near its final position on the slope or dumping rock at the toe and bulldozing it up the slope is a very satisfactory method of placement, if approval is obtained for the use of equipment in the channel.(3-18-22)

13.Design Procedure. Design procedure using the Far West States (FWS) method.(3-18-22)

a.The FWS method uses a single equation to deal with variables for riprap.(3-18-22)

D75 = 3.5/CK WDS for Channel Banks where: D75 = Size of the rock at seventy five percent (75%) is finer in gradation, in inches.

b.The coefficient, C, is based on the ratio of the radius of curvature of the stream, (CR), to the water surface width, (WSW), so it is necessary for the user to make field determination of these values. The coefficient varies from 0.6 for a curve ratio of 4 to 6, up to 1.0 for a straight channel. If the computed ratio for a particular project is less than 4, the designer should consider some modification less than 4.

W= Specific weight of water, usually 62.4 lbs./cu.ft.

D= Depth of flow in stream, in feet in flood stage S= Channel slope or gradient, in ft/ft.

C= A coefficient relating to curvature in the stream K= A coefficient relating to steepness of bank slopes

c.The coefficient, K, ranges from 0.5 for a 1.5:1 sideslope to 0.87 for 3:1 sideslope. No values are given for steeper or flatter slopes. Slopes steeper than 1.5:1 are not recommended. If slopes flatter than 3:1 are desired, it would be conservative to use the K-value for 3:1 slopes.

IDAPA 37.03.07.058 Drop Structures, Sills and Barbs (rule 58)

01.Drop Structures. A drop structure shall be constructed of rocks, boulders and/or logs placed within a stream channel to act as a low level dam. Placement of a drop structure perpendicular to stream flow will decrease the stream gradient, dissipate stream energy and decrease stream velocity through an increase in water surface elevation immediately above the structure. Drop structures shall comply with the following criteria:(3-18-22)

a.Maximum water surface differential across (upstream water surface elevation minus downstream water surface elevation) a drop structure shall not exceed two (2) feet. The department shall approve the final elevation of any structure.(3-18-22)

b.Rock drop structures shall be constructed of clean, sound, dense, durable, angular rock fragments, and/or boulders of size and gradation, such that the stream is incapable of moving the material during peak flows.

Rocks shall be keyed into the stream banks to minimize the likelihood of bank erosion, (See APPENDIX D located at the end of this chapter).(3-18-22)

c.Log drop structures are acceptable in four (4) designs including the single log dam, the stacked log dam, the three (3) log dam, and the pyramid log dam. Log ends shall be keyed into both banks at least one-third (1/3) of the channel width or a distance sufficient to prevent end erosion. To prevent undercutting, the bottom log shall be embedded in the stream bed or hardware cloth, cobbles or boulders shall be placed along the upper edge. Minimum log size for a single log structure shall be determined by on-site conditions and shall be placed to maintain flow over the entire log to prevent decay. Each log drop structure must be accompanied by downstream scour protection, such as a rock apron (See APPENDIX E located at the end of this chapter.(3-18-22)

d.All drop structures shall be constructed to facilitate fish passage and centralized scour pool development.(3-18-22)

02.Sills. A sill shall be constructed of the same material and in the same manner as a drop structure.

CR/WSWC 4 - 60.60 6 - 90.75 9 - 120.90

Straight Channel1.00 BankslopeK 1.5:10.50 1.75:10.63 2.0:10.72 2.5:10.80 3.0:10.87 The top of the sill may not exceed the elevation of the bottom of the channel. The purpose of a sill is to halt the upstream movement of a headcut, thus precluding the widening or deepening of the existing channel. (See APPENDIX F located at the end of this chapter).(3-18-22)

03.Barb or Partial Drop Structure. A barb or partial drop structure shall be constructed in the same manner and of the same material as a drop structure and placed into the stream channel to act as a low level dam and grade control structure. The barb will decrease stream gradient, dissipate stream energy and redirect stream flow.

a.Barbs shall be constructed of clean, sound, dense, angular rock fragments, of size and gradation such that the stream is incapable of moving the material during peak flows.(3-18-22)

b.Barbs shall be constructed with a downstream angle of no less than one hundred (100) degrees and no greater than one hundred thirty-five (135) degrees unless otherwise specified.(3-18-22)

c.Barbs shall “extend” into the channel a distance of not more than twenty percent (20%) of the width of the channel unless otherwise specified by the Director.(3-18-22)

d.Barbs shall be keyed into the bank a distance equal to or greater than the width of the structure and down to bed level. Whenever moisture is encountered in the construction of the keyways, willow cuttings or clumps shall be placed before and during rock placement in such a manner that the base of the cutting is in permanent moisture and the top extends a minimum of six (6) inches above grade (see APPENDIX G located at the end of this chapter).(3-18-22)

IDAPA 37.03.07.059 Culverts and Bridges (rule 59)

01.Culverts and Bridges. Culverts and bridges shall be capable of carrying streamflows and shall not significantly alter conditions upstream or downstream by causing flooding, turbidity, or other problems. The appearance of such installations shall not detract from the natural surroundings of the area.(3-18-22)

02.Location of Culverts and Bridges. Culverts and bridges should be located so that a direct line of approach exists at both the entrance and exit. Abrupt bends at the entrance or exit shall not exist unless suitable erosion protection is provided.(3-18-22)

03.Ideal Gradient. The ideal gradient (bottom slope) is one which is steep enough to prevent silting but flat enough to prevent scouring due to high velocity flows. It is often advisable to make the gradient of a culvert coincide with the average streambed gradient.(3-18-22)

a.Where a culvert is installed on a slope steeper than twenty percent (20%), provisions to anchor the culvert in position will be required. Such provisions shall be included in the application and may involve the use of collars, headwall structures, etc. Smooth concrete pipe having no protruding bell joints or other irregularities shall have such anchoring provisions if the gradient exceeds ten percent (10%).(3-18-22)

04.Size of Culvert or Bridge Opening. The size of the culvert or bridge opening shall be such that it is capable of passing design flows without overtopping the streambank or causing flooding or other damage.

a.Design flows shall be based upon the following minimum criteria:

Drainage AreaDesign Flow Frequency Less than 50 sq. mi.25 Years Over 50 sq. mi. or more50 years or greatest flow of record, whichever is more

b.For culverts and bridges located on U.S. Forest Service or other federal lands, the sizing should comply with the Forest Practices Act as adopted by the federal agencies or the Department of Lands.(3-18-22)

c.For culverts or bridges located in a community qualifying for the national flood issuance program, the minimum size culvert shall accommodate the one hundred (100) year design flow frequency.(3-18-22)

d.If the culvert or bridge design is impractical for the site, the crossing may be designed with additional flow capacity outside the actual crossing structure, provided there is no increase in the Base Flood Elevation.

(NOTE: When flow data on a particular stream is unavailable, it is almost always safe to maintain the existing gradient and cross-section area present in the existing stream channel. Comparing the proposed crossing size with others upstream or downstream is also a valuable means of obtaining information regarding the size needed for a proposed crossing.)(3-18-22)

e.Minimum clearance shall be at least one (1) foot at all bridges. This may need to be increased substantially in the areas where ice passage or debris may be a problem. Minimum culvert sizes required for stream crossings:(3-18-22)

i.Eighteen (18) inch diameter for culverts up to seventy (70) feet long;(3-18-22)

ii.Twenty-four (24) inch diameter for all culverts over seventy (70) feet long.(3-18-22)

f.In streams where fish passage is of concern as determined by the director, an applicant shall comply with the following provisions and/or other approved criteria to ensure that passage will not be prevented by a proposed crossing.(3-18-22)

g.Minimum water depth shall be approximately eight (8) inches for salmon and steelhead and at least three (3) inches in all other cases.(3-18-22)

h.Maximum flow velocities for streams shall not exceed those shown in Figure 17 in APPENDIX H, located at the end of this chapter, for more than a forty-eight (48) hour period. The curve used will depend on the type of fish to be passed.(3-18-22)

i.Where it is not feasible to adjust the size or slope to obtain permissible velocities, the following precautions may be utilized to achieve the desired situation.(3-18-22)

j.Baffles downstream or inside the culvert may be utilized to increase depth and reduce velocity.

Design criteria may be obtained from the Idaho Fish and Game Department.(3-18-22)

k.Where multiple openings for flow are provided, baffles or other measures used in one (1) opening only shall be adequate provided that the opening is designed to carry the main flow during low-flow periods.

05.Construction of Crossings. When crossings are constructed in erodible material, upstream and downstream ends shall be protected from erosive damage through the use of such methods as dumped rock riprap, headwall structures, etc., and such protection shall extend below the erodible streambed and into the banks at least two (2) feet unless some other provisions are made to prevent undermining.(3-18-22) a.

Where fish passage must be provided, upstream drops at the entrance to a culvert will not be permitted and a maximum drop of one (1) foot will be permitted at the downstream end if an adequate jumping pool is maintained below the drop.(3-18-22)

b.Downstream control structures such as are shown in Figure 18 in APPENDIX I, located at the end of this chapter, can be used to reduce downstream erosion and improve fish passage. They may be constructed with gabions, pilings and rock drop structures.(3-18-22)

06.Multiple Openings. Where a multiple opening will consist of two (2) or more separate culvert structures, they shall be spaced far enough apart to allow proper compaction of the fill between the individual structures. The minimum spacing in all situations shall be one (1) foot. In areas where fish passage must be provided, only one (1) opening shall be constructed to carry all low flows. Low flow baffles may be required to facilitate fish passage.(3-18-22)

07.Areas to be Filled. All areas to be filled shall be cleared of vegetation, topsoil, and other unsuitable material prior to placing fill. Material cleared from the site shall be disposed of above the high water line of the stream. Fill material shall be reasonably well-graded and compacted and shall not contain large quantities of silt, sand, organic matter, or debris. In locations where silty or sandy material must be utilized for fill material, it will be necessary to construct impervious sections both upstream and downstream to prevent the erodible sand or silt from being carried away (see Figure 19, APPENDIX J, located at the end of this chapter), Sideslopes for fills shall not exceed one and one half to one (1.5:1). Minimum cover over all culvert pipes and arches shall be one (1) foot.

08.Installation of Pipe and Arch Culvert. All pipe and arch culverts shall be installed in accordance with manufacturer’s recommendations.(3-18-22)

a.The culvert shall be designed so that headwaters will not rise above the top of the culvert entrance unless a headworks is provided.(3-18-22)

IDAPA 37.03.07.060 Removal of Sand and Gravel Deposits (rule 60)

01.Removal of Sand and Gravel.

This work consists of removal of sand and gravel deposits from within a stream channel. The following conditions shall be adhered to unless other methods have been specified in detail on the application and approved by the Director.(3-18-22)

02.Removal Below Water Surface. Sand and gravel must not be removed below the water surface existing at the time of the work. Where work involves clearing a new channel for flow, removal of material below water level will be permitted to allow this flow to occur; however, this must not be done until all other work in the new channel has been completed.(3-18-22)

03.Buffer Zone. A buffer zone of undisturbed streambed material at least five (5) feet in width or as otherwise specified by the Director shall be maintained between the work area and the existing stream. The applicant shall exercise reasonable precautions to ensure that turbidity is kept to a minimum and does not exceed state water quality standards.(3-18-22)

04.Movement of Equipment. Equipment may cross the existing stream in one (1) location only, but shall not push or pull material along the streambed while crossing the existing stream.(3-18-22)

05.Disturbing Natural Appearance of Area. Work must be done in a manner that will least disturb the natural appearance of the area. Sand and gravel shall be removed in a manner that will not leave unsightly pits or other completely unnatural features at the conclusion of the project.(3-18-22)

IDAPA 37.03.07.061 Small Scale Mining with Suction Dredges, Powered Sluices, or Non-

POWERED

EQUIPMENT (RULE 61) .

01.Small Scale Mining Permit. The Director may issue a permit for the operation of a powered suction dredge or power sluice, or certain qualified non-powered mining activities that follow minimum standards (Rule 61), within stream channels designated as open by the Department or Board. A powered suction dredge or power sluice shall only be operated in accordance with the conditions of the Small Scale Mining Permit. A power sluice and a high-banker are synonymous for the purposes of these rules.(3-18-22)

02.Standards for Small Scale Mining Permits. The following standards shall apply only to uses of suction dredges and power sluices below the mean high water mark with nozzle diameters of five (5) inches or less and powered equipment rated at fifteen (15) HP or less, or the use of non-powered sluice equipment moving more than one-quarter (1/4) cubic yard per hour.(3-18-22)

03.Powered Equipment Prohibited Below High Water Mark. There shall be no use of powered equipment below the mean high water mark except for the suction dredge, or power sluice and any human life support system necessary to operate the suction dredge or power sluice.(3-18-22)

04.Protection of Streambanks. The operation of a suction dredge or power sluice, or the use of nonpowered equipment shall be carried out in a manner that prevents the undercutting of streambanks.(3-18-22)

05.Permit Required for Certain Non-Powered Operations. A Small Scale Mining Permit is required for non-powered mining activities when those activities include: (1) the use of non-powered equipment by more than five (5) people mining the same area; or (2) the use of non-powered equipment where the disturbed area at the mining location exceeds thirty three (33) percent of the width of the wetted stream channel.(3-18-22)

06.Limitation of Mining Sites. Only one (1) mining site per one hundred (100) linear feet of stream channel shall be worked at one (1) time unless waived by the Director.(3-18-22)

IDAPA 37.03.07.062 Piling (rule 62)

01.Standards for Pilings.

The following standards apply to a piling associated with a boat or swimming dock, a log boom, a breakwater, or bridge construction.(3-18-22)

02.Replacement of Pilings. In replacing a piling the old piling shall be completely removed from the channel, secured to the new piling or cut at stream bed level.(3-18-22)

03.Condition of Pilings. Chemicals or compounds used for protection of piles and lumber shall be thoroughly dried to prevent bleeding, weeping or dissolution before placing such piles and lumber over, in or near water.(3-18-22)

04.Prohibited Materials. The application of creosote, arsenicals or phentachlorophenol (Penta) to timber shall not occur in, or over water.(3-18-22)

IDAPA 37.03.07.063 Pipe Crossings (rule 63)

01.Standards for Pipe Crossings.

The following standards apply to pipe crossings to be installed below the bed of a stream or river such as utility crossings of a gas line, sewer line, electrical line, communication line, water line or similar line.(3-18-22)

02.Depth of Line. The line shall be installed below the streambed to a depth which will prevent erosion and exposure of the line to free flowing water. In areas of high stream velocity where scouring may occur, the pipe shall be encased in concrete or covered with rock riprap to prevent the pipeline from becoming exposed.

03.Pipe Joints. The joints shall be welded, glued, cemented or fastened together in a manner to provide a water tight connection.(3-18-22)

04.Construction Methods. Construction methods shall provide for eliminating or minimizing discharges of turbidity, sediment, organic matter or toxic chemicals. A settling basin or cofferdam may be required for this purpose.(3-18-22)

05.Cofferdam. If a cofferdam is used, it shall be completely removed from the stream channel upon completion of the project.(3-18-22)

06.Revegetation of Disturbed Areas. Areas disturbed as a result of the alteration shall be revegetated with plants and grasses native to these areas.(3-18-22)

IDAPA 37.03.07.064 Concrete Plank Boat Launch Ramps (rule 64)

01.Construction of Concrete Plank Boat Launch Ramps. Concrete plank boat launch ramps, shall be constructed with individual sections of precast, reinforced concrete planks linked together to provide a stable nonerosive water access (see Figure 20, APPENDIX K, located at the end of this chapter).(3-18-22)

02.Construction of Concrete Planks. Typical concrete plank size is twelve feet by fourteen inches by four inches (12’ x 14” x 4”). All planks shall be constructed with Type II low alkali cement. All planks shall have a broom form finish, free of rock pockets and loose materials. Figures 21 and 22 shows a typical launch plank detail.

(See APPENDIXES L and M).(3-18-22)

03.Assembly of Planks. The planks shall be assembled out of the water and slid into place on a constructed launch ramp where water velocities do not exceed two (2) feet per second. In waters exceeding (2) feet per second the ramp sections shall be linked together and fastened to pre-positioned stringers anchored into the launch ramp. (See Figure 23, APPENDIX N, located at the end of this chapter).(3-18-22)

04.Water Depth. The water depth above the lower end of the ramp section shall not be less than three (3) feet during low level or low flow periods. (See Figure 20, APPENDIX K, located at the end of this chapter).

05.Construction of Boat Ramp. The boat launch ramp shall have a base constructed of sound, dense, durable, angular rock resistant to weathering and free from soil, shale and organic materials. Rounded cobbles, boulders and streambed material are not acceptable as base material in areas with stream flow velocities greater than two (2) fps. Base materials shall be covered with a layer of (three-fourths inches (3/4”) min.) crushed rock with a minimum depth of two inches (2”). The ramp shall have a minimum and maximum slope of ten percent (10%) and fifteen percent (15%) respectively, and shall be constructed in a manner to avoid long incursions into the stream channel. All ramps and fill material shall be protected with rock riprap in accordance with Rule 057 when stream flow velocities exceed two (2) fps. (See Figure 24, APPENDIX O, located at the end of this chapter).(3-18-22)

IDAPA 37.03.07.065 (Reserved)

IDAPA 37.03.07.070 Hearings on Denied, Limited, or Conditioned Permit or Other Decisions of

THE DIRECTOR (RULE 70).

Any applicant who is granted a limited or conditioned permit, or who is denied a permit, may seek a hearing on said actio n of the Director by serving on the Director written notice and request for a hearing before the Board within fifteen (15) days of receipt of the Director’s decision. Said hearing will be set, conducted, and notice given as set forth in the Rules promulgated by the Board under the provisions of Title 67, Chapter 52, Idaho Code.(3-18-22)

IDAPA 37.03.07.071 (Reserved)

APPENDIX A

Ta b l e 1 A Riprap Gradation Using FWS Method % Finer by Weight Minimum Size Maximum Size 1.33 X D 2.0 X D 1.0 X D 1.67 X D 0.67 X D 1.17 X D 0.33 X D 0.77 X D None0.33 X D

APPENDIX B

APPENDIX B (CONTINUED)

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX G

APPENDIX H

APPENDIX I

APPENDIX J

APPENDIX K

APPENDIX L

APPENDIX M

APPENDIX N

APPENDIX O

37.03.09 Well Construction Standards Rules

IDAPA 37.03.09.000 Legal Authority (rule 0)

Section 42-238(12), Idaho Code.(7-1-25)

IDAPA 37.03.09.001 Scope (rule 1)

These rules establish minimum standards for the construct ion of all new wells and the modification and decommissioning of existing wells. The intent of the rules is to protect the ground water resources of the state against waste and contamination. These rules are applicable to all water wells, monitoring wells, low temperature geothermal wells, injection wells, cathodic protection wells, closed loop heat exchange wells, and other artificial openings and excavations in the ground that are more than eighteen (18) feet in vertical depth below land surface as described in these rules pursuant to Section 42-230 Idaho Code.(7-1-25)

IDAPA 37.03.09.002 (Reserved)

IDAPA 37.03.09.010 Definitions (rule 10)

01.Approved Seal or Seal Material. Seal m aterial must consist of bentonite chips, pellets, or granules, bentonite grout, neat cement, or neat cement grout as defined by these rules.(7-1-25)

02.Annular Space. The space, measured as one-half (1/2) the difference in diameter between two (2) concentric cylindrical objects, one of which surrounds the other, such as the space between the walls of a drilled hole (borehole) and a casing or the space between two (2) strings of casing.(3-18-22)

03.Aquifer. Any geologic formation(s) that will yield water to a well in sufficient quantities to make the production of water from the formation feasible for beneficial use.(3-18-22)

04.Area of Drilling Concern. An area designated by the Director in which drillers must comply with additional standards to prevent waste or contamination of ground or surface water due to such factors as aquifer pressure, vertical depth of the aquifer, warm or hot ground water, or contaminated ground or surface waters, in accordance with Section 42-238(15), Idaho Code.(7-1-25)

05.Artesian Water. Any water that is confined in an aquifer under pressure so that the water will rise in the well casing or drilled hole above the elevation where it was first encountered. This term includes water of flowing and non-flowing wells.(3-18-22)

06.Artificial Filter Pack. Clean, rounded, smooth, uniform, sand or gravel placed in the annular space around a perforated well casing or well screen. A filter pack is frequently used to prevent the movement of finer material into the well casing and to increase well efficiency.(3-18-22)

07.Bentonite. A commercially processed and packaged, low permeability, sodium montmorillonite clay certified by the NSF International for use in well construction, sealing, plugging, and decommissioning. All bentonite products used in the construction or decommissioning of wells must have a permeability rating not greater than 10 -7 (ten to the minus seven) cm/sec.(7-1-25)

a.Chips. Bentonite composed of pieces ranging in size from one-quarter (1/4)-inch to one (1) inch on their greatest dimension.(3-18-22)

b.Granules (also Granular). Bentonite composed of pieces ranging in size from one thirty-seconds (1/ 32) inch (#20 standard mesh) to seven thirty-seconds (7/32) inch (#3 standard mesh) on their greatest dimension.

c.Bentonite Grout. A mixture of bentonite specifically manufactured for use as a well sealing or plugging material and potable water to produce a grout with an active solids content not less than twenty-five percent (25%) by weight e.g., (twenty-five percent (25%) solids content by weight = fifty (50) pounds bentonite per eighteen (18) gallons of water).(3-18-22)

d.Pellets (also Tablets). High swelling sodium bentonite compressed into pellet form, including pellets coated with a time release biodegradable coating.(7-1-25)

08.Board. The Idaho Water Resource Board.(3-18-22)

09.Bore Diameter. The diameter of the hole in the formation made by the drill bit or reamer.

10.Borehole (also Well Bore and Boring). The subsurface hole created during the drilling process.

11.Bottom Hole Temperature. The temperature of the ground water encountered in the bottom of a well or borehole.(7-1-25)

12.Casing. The permanent steel or thermoplastic pipe installed in a well to maintain the well opening and serve as a solid inner barrier to allow for the installation of an annular seal.(7-1-25)

13.Cathodic Protection Well. Any artificial excavation more than eighteen (18) feet in vertical depth constructed for the purpose of protecting certain metallic equipment in contact with the ground. Commonly referred to as cathodic protection.(7-1-25)

14.Closed Loop Heat Exchange Well. A well through which thermal exchange fluids are circulated but remain isolated from direct contact with the subsurface or ground water.(7-1-25)

15.Conductor Pipe. The first and largest diameter string of permanent casing installed in a well when multiple casing strings are necessary.(7-1-25)

16.Confining Layer. A subsurface zone of low-permeability earth material that naturally acts to restrict or retard the movement of water or contaminants from one zone to another.(7-1-25)

17.Consolidated Formations. Naturally-occurring geologic formations that have been lithified (turned to stone) such as sandstone and limestone, or igneous rocks such as basalt and rhyolite, and metamorphic rocks such as gneiss and slate.(3-18-22)

18.Contaminant. Any physical, chemical, biological, or radiological substance or matter.(7-1-25)

19.Contamination. The introduction into the natural ground water of any physical, chemical, biological or radioactive material that may:(3-18-22)

a.Cause a violation of Standards found in IDAPA 58.01.11, “Ground Water Quality Rule,” or primary federal drinking water regulation found in 40 CFR Parts 141 and 142 whichever is more stringent.; or(7-1-25)

b.Adversely affect the health of the public; or(3-18-22)

c.Adversely affect a designated or beneficial use of the State’s ground water. Contamination includes the introduction of heated or cooled water into the subsurface that will alter the ground water temperature and render the local ground water less suitable for beneficial use.(7-1-25)

20.Decommissioned (Abandoned) Well. Any well that has been permanently removed from service and filled or plugged in accordance with these rules to meet the intent of these rules. A properly decommissioned well will not:(7-1-25)

a.Produce or accept fluids;(3-18-22)

b.Serve as a conduit for the movement of contaminants inside or outside the well casing; or

c.Allow the movement of surface or ground water into unsaturated zones, into another aquifer, or between aquifers.(3-18-22)

21.Decontamination. The process of removing contaminants from equipment intended for use in a well.(7-1-25)

22.Department. The Idaho Department of Water Resources.(3-18-22)

23.Dewatering Well. A well constructed for the purpose of improving slope stability, drying up land, or intercepting seepage that would otherwise enter an excavation.(7-1-25)

24.Director. The Director of the Idaho Department of Water Resources.(7-1-25)

25.Disinfection. The introduction of chlorine or other agent or process approved by the Director in sufficient concentration and for the time required to inactivate or kill fecal and Coliform bacteria, indicator organisms, and other pathogens.(7-1-25)

26.Draw Down. The difference in vertical distance between the static water level and the pumping water level.(3-18-22)

27.Drive Point (also known as a Sand Point). A conduit through which ground water of any temperature is sought or encountered; created by joining a “drive point unit” to a length of pipe and driving the assembly into the ground.(7-1-25)

28.Geotechnical Borings. Borings drilled for the sole purpose of obtaining soil samples or other data to determine subsurface geologic properties.(7-1-25)

29.Hydraulic Fracturing. A process whereby water or other fluid is pumped under high pressure into a well to further fracture the reservoir rock or aquifer surrounding the production zone of a well to increase well yield.

30.Injection Well. Any feature that is operated to allow the subsurface emplacement of fluids that also meets at least one (1) of the following criteria:(7-1-25)

a.A bored, or driven shaft whose depth is greater than the largest surface dimension;(7-1-25)

b.A dug hole whose depth is greater than the largest surface dimension;(7-1-25)

c.An improved sinkhole; or(7-1-25)

d.A subsurface fluid distribution system.(7-1-25)

31.Intermediate String or Casing. Casing installed and sealed to isolate undesirable water or zones below first string of permanent casing. Such strings may either be lapped into the casing above it or extend to land surface.(7-1-25)

32.Liner. A removable steel or thermoplastic pipe used as access and protective housing for pumping equipment and provide a pathway for the upward flow of water within the well.(7-1-25)

33.Modify. To deepen a well, increase or decrease the diameter of the casing or the well bore, install a liner, place a screen, perforate existing casing or liner, alter the seal between the casing and well bore, or alter the well to not meet well construction standards.(3-18-22)

34.Monitoring Well. Any well used to evaluate, observe or determine the quality, quantity, temperature, pressure or other characteristics of the ground water or aquifer.(7-1-25)

35.Neat Cement. A mixture of water and cement in the ratio of not more than six (6) gallons of water to ninety-four (94) pounds of Portland cement. Other neat cement mixes may be used if specifically approved by the Director.(7-1-25)

36.Neat Cement Grout. Up to five percent (5%) bentonite by dry weight may be added per sack of cement and the water increased to not more than six and one-half (6.5) gallons per sack of cement. Other neat cement grout mixes may be used if specifically approved by the Director. These grouts must be mixed and installed in accordance with the American Petroleum Institute Standards - API Class A through H. As found in API RP10B, “Recommended Practice for Testing Oil Well Cements and Cement Additives,” current edition or other approved standards.(7-1-25)

37.Oxidized Sediments. Sediments, characterized by distinct coloration, typically shades of brown, red, or tan, caused by the alteration of certain minerals in an environment with a relative abundance of oxygen.

38.Perforated Well Casing. Well casing that has been modified by the addition of openings created by drilling, torch cutting, saw cutting, mechanical down-hole perforator, or other method.(3-18-22)

39.Pitless Adaptor or Pitless Unit. An assembly that provides a watertight connection between the pump installed inside the well casing and buried pipe outside the well casing.(7-1-25)

40.Potable Water. Water of adequate quality for human consumption.(3-18-22)

41.Pressure Grouting (Grouting). The process of pumping and placing an approved grout mixture into the required annular space, well bore, casing or screens by positive displacement from bottom to top using a tremie pipe, Halliburton method, float shoe, or other method approved by the Director.(7-1-25)

42.Production Casing. The final string of casing or tubing extending from the producing zone to land surface.(7-1-25)

43.Public Drinking Water System. A system for the provision to the public of water for human consumption through pipes or, after August 5, 1998, other constructed conveyances, if such system has at least fifteen (15) service connections, regardless of the number of water sources or configuration of the distribution system, or regularly serves an average of at least twenty-five (25) individuals daily at least sixty (60) days out of the year. Such term includes: any collection, treatment, storage, and distribution facilities under the control of the operator of such system and used primarily in connection with such system; and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. Such term does not include any “special irrigation district.” A public drinking water system is either a “community water system” or a “noncommunity water system” as further defined as:(7-1-25)

a.Community water system. A public drinking water system which serves at least fifteen (15) service connections used by year-round residents or regularly serves at least twenty-five (25) year-round residents. (7-1-25)

b.Noncommunity water system. A public drinking water system that is not a community water system. A non-community water system is either a transient noncommunity water system or a non-transient noncommunity water system.(7-1-25)

c.Nontransient noncommunity water system. A public drinking water system that is not a community water system and that regularly serves at least twenty-five (25) of the same persons over six (6) months per year.

d.T ransient noncommunity public drinking water system. A noncommunity water system which does not regularly serve at least twenty-five (25) of the same persons over six (6) months per year.(7-1-25)

44.Reduced Sediments. Sediments, characterized by distinct coloration, typically shades of blue, black, gray, or green, caused by the alteration of certain minerals in an oxygen poor environment.(3-18-22)

45.Remediation Well. A well used to inject or withdraw fluids, vapor, or other solutions approved by the Director for the purposes of remediating, enhancing quality, or controlling potential or known contamination.

Remediation wells include those used for air sparging, vapor extraction, or injection of chemicals for remediation or in-situ treatment of contaminated sites.(3-18-22)

46.Sand. Any sediment particle retained on a U.S. standard sieve #200 (Seventy-five hundreths (0.075) mm to two (2) mm).(3-18-22)

47.Screen (Well Screen). A commercially produced structural tubular retainer with standard sized openings to facilitate production of sand free water.(3-18-22)

48.Seal or Sealing. The placement of approved seal material in the required annular space between a borehole and casing, between casing strings, or as otherwise required to create a low permeability barrier and prevent movement or exchange of fluids.(7-1-25)

49.Start Card. An expedited drilling permit process for the construction of cold water, single-family residential wells.(3-18-22)

50.Static Water Level. The depth to water in a well under non-pumping conditions.(7-1-25)

51.Surface Casing. The first string of casing in a low temperature geothermal resource well which is set and sealed after the conductor pipe to anchor blow out prevention equipment and to case and seal out all existing cold ground water zones.(3-18-22)

52.Temporary Casing. Steel pipe used to support the borehole within unstable or unconsolidated formations during construction of a well that will be removed following the installation of the permanent well casing and prior to or during placement of an annular seal.(7-1-25)

53.Thermoplastic/PVC Casing. Plastic piping material meeting the requirements of ASTM F 480 and NSF-WC and specifically designed for use as well casing.(7-1-25)

54.Transmissivity. The capacity of an aquifer to transmit water through its entire saturated thickness.

55.Tremie Pipe. A small-diameter pipe used to convey grout, dry bentonite products, or filter pack materials into the annular space, borehole, or well from the bottom to the top of a borehole or well.(3-18-22)

56.Unconfined Aquifer. An aquifer in which the water table is in contact with and influenced by atmospheric pressure through pore spaces in the overlying formation(s).(3-18-22)

57.Unconsolidated Formation. A naturally-occurring earth formation that has not been lithified.

Alluvium, soil, sand, gravel, clay, and overburden are some of the terms used to describe this type of formation.

58.Unstable Unit. Unconsolidated formations, and those portions of consolidated formations, that are not sufficiently hard or durable enough to sustain an open borehole without caving or producing obstructions without the aid of fluid hydraulics or other means of chemical or physical stabilization.(3-18-22)

59.Unusable Well. Any well that can not be used for its intended purpose or other beneficial use authorized by law.(3-18-22)

60.Waiver. Approval in writing by the Director of a written request from the well driller and the well owner proposing specific variance from the minimum well construction standards.(3-18-22)

61.Waste. The loss, transfer, or subsurface exchange of a ground water resource, thermal characteristic, or natural artesian pressure from any aquifer caused by improper construction, misuse, or failure to properly maintain a well. Waste includes:(3-18-22)

a.The flow of water from an aquifer into an unsaturated subsurface zone;(3-18-22) b.

The transfer or mixing, or both, of waters from one aqu ifer to another (aquifer commingling); or

c.The release of ground water to the land surface whenever such release does not comply with an authorized beneficial use.(3-18-22)

62.Water Table. The upper surface of the zone of saturation in an unconfined aquifer. This level will change over time due to changes in water supply and aquifer impacts.(7-1-25)

63.Well. An artificial excavation or opening in the ground more than eighteen (18) feet in vertical depth below land surface by which ground water of any temperature is sought or obtained. Any water encountered in the well is considered to be obtained for the purpose of these rules.(7-1-25)

64.Well Development. The act of bailing, jetting, pumping, or surging water in a well to remove drilling fluids, fines, and suspended materials from within a completed well and production zone to establish the optimal hydraulic connection between the well and the aquifer.(7-1-25)

65.Well Driller or Driller. Any person who operates drilling equipment, or who controls or supervises the construction of a well, and is licensed under Section 42-238, Idaho Code(3-18-22)

66.Well Drilling or Drilling. The act of constructing a new well or modifying the construction of an existing well.(7-1-25)

67.Well Owner. Any person, firm, partnership, co-partnership, corporation, association, or other entity, or any combination of these, who owns the property on which the well is or will be located or has secured ownership of the well by means of a deed, covenant, contract, easement, or other enforceable legal instrument for the purpose of benefiting from the well.(3-18-22)

68.Well Rig (Drill Rig). Any power driven percussion, rotary, boring, digging, jetting, auguring, or any other power-driven mechanical equipment used in the drilling of a well.(7-1-25)

IDAPA 37.03.09.011 (Reserved)

IDAPA 37.03.09.025 Construction of Ground Water Wells (rule 25)

All persons constructing wells must comply with the req uirements of Section 42-238, Idaho Code, and IDAPA 37.03.10, “Well Driller Licensing Rules.” The standards specified in Rule 25 apply to all wells, including waste disposal and injection wells as defined in Section 42-3902, Idaho Code, with a bottom hole temperature less than two hundred twelve (212) degrees Fahrenheit. Wells with a bottom hole temperature greater than eighty-five (85) degrees Fahrenheit, but less than two hundred twelve (212) degrees Fahrenheit, must meet also the requirements of Rule 30.

01.General. The well driller must construct each well as follows:(3-18-22)

a.In accordance with these rules and with the conditions of approval of any drilling permit issued pursuant to Section 42-235, Idaho Code, and in a manner that will prevent waste and contamination of the ground water resources of the state of Idaho. The adopted standards are minimum standards which must be adhered to in the construction of all new wells, and in the modification or decommissioning of existing wells. The well driller is charged with the responsibility of preventing waste and contamination of the ground water resources during the construction, modification or abandonment of a well. The Director may add conditions of approval to a drilling permit issued pursuant to Rule 45 of these rules to require that a well be constructed, modified, maintained or decommissioned in accordance with additional standards when necessary to protect ground water resources and the public health and safety from contamination and waste during the construction, modification or decommissioning of a well.(7-1-25)

b.In consideration of the geologic and ground water conditions known to exist or anticipated at the well site.(3-18-22)

c.Such that it is capable of producing, where obtainable, the quantity of water to support the allowed or approved beneficial use of the well, subject to law.(7-1-25)

d.Meet the siting and separation distance requirements in the table in this Subsection (025.01.d.).

Additional siting and separation distance requirements are set forth by the governing district health department and the Idaho Department of Environmental Quality rules at IDAPA 58.01.03, “Individual/Subsurface Sewage Disposal Rules,” and IDAPA 58.01.08, “Idaho Rules for Public Drinking Water Systems”.

02.Waivers. In unique cases where the Director concludes that the ground water resources will be protected against waste and contamination and the public health and safety are not compromised, a waiver of specific standards required by these rules may be approved prior to constructing, decommissioning, or modifying a well. The Director may request comments from IDEQ or local Health Districts when considering waivers seeking a variance of separation distances established by IDEQ Rules, which includes separation distances between wells and septic tanks, wells and septic drain fields, wells and sewer lines, or wells and effluent pipes.(7-1-25)

a.To request a waiver the well driller and well owner must:(3-18-22)

i.Jointly submit a detailed plan and written request identifying a specific Rule or Rules proposed to be waived. Additionally, the plan must detail the well construction process that will be employed in lieu of complete Rule compliance:(3-18-22)

ii.Prior to submittal, the well driller and the well owner must sign the plan and written request acknowledging concurrence with the request; and(3-18-22)

iii.Submit the plan and request by facsimile, e-mail, or letter.(3-18-22)

b.The Director will evaluate and respond to the request within ten (10) business days of receiving the request.(3-18-22)

Separation of Well from:

Minimum Separation Distance (feet)

Existing Public Water Supply well, separate ownership- 50 Other existing well, separate ownership- 25 Septic drain field-100 Septic tank- 50 Drainfield of system with more than 2,500 GPD of sewage inflow-300* Sewer line - main line or sub-main, pressurized, from multiple sources-100 Sewer line - main line or sub-main, gravity, from multiple sources- 50 Sewer line - secondary, pressure tested, from a single residence or building - 25 Effluent pipe- 50 Property line- 5 Permanent buildings, other than those to house the well or plumbing apparatus, or both- 10 Above ground chemical storage tanks- 20 Permanent (more than six months) or intermittent (more than two months) surface water- 50 Canals, irrigation ditches or laterals, & other temporary (less than two months) surface water- 25 *This distance may be less if data from a site investigation demonstrates compliance with  IDAPA 58.01.03, “Individual/Subsurface Sewage Disposal Rules,” separation distances.

i.If the request for waiver is approved, the intent of the rules will be served, and all standards not waived will apply. Waivers approved by the Director will not supersede the requirements of other regulatory agencies without specific concurrence from that agency. Work activity related to a waiver request will not proceed until written or verbal approval is granted by the Director.(7-1-25)

ii.Any verbal approval will be followed by a written approval.(3-18-22)

03.Records. To enable a comprehensive survey of the extent and occurrence of the state’s ground water resource, the coordinates of every newly constructed, modified or decommissioned well location must be identified by latitude and longitude with a global positioning system (GPS) and recorded on the driller’s report in degrees and decimal minutes and within the nearest 40 acre parcel using the Public Land Survey System. Every well driller must maintain records as described in IDAPA 37.03.10 “Well Driller Licensing Rules,” pursuant to Section 42- 238(11), Idaho Code, and provide the well owner with a copy of the approved well drilling permit and a copy of the well driller’s report when submitted to the Director.(7-1-25)

04.Casing. The well driller must install casing in every well. Steel casing may be installed in any well, thermoplastic casing may be installed in a well with a bottom hole temperature of eighty-five (85) degrees Fahrenheit or less if drilling of the borehole confirms its suitability for use. All casing to be installed must be new or in like-new condition, free of defects, and clearly marked by the manufacturer with all specifications required by these rules. For all wells the casing must extend at least twelve (12) inches above land surface and finished grade and to a minimum depth below land surface as required by these rules. Concrete slabs around a well casing will be considered finished grade (Figure 01, Appendix A).The well driller must install casing of sufficient strength to withstand calculated and anticipated subsurface forces and corrosive effects. The well driller must install casings sufficiently plumb and straight to allow the installation or removal of screens, liners, pumps and pump columns without causing adverse effects on the operation of the installed pumping equipment.(7-1-25)

a.Steel Casing. When steel casing lengths are joined together, the joints must be welded or screwcouple and be watertight. Welded joints must be at least as thick as the well casing and fully penetrating. Welding rods or flux core wire of at least equal quality to the casing metal must be used. Casing ends to be joined by welding must be properly prepared, beveled and gapped to allow full penetration of the weld. All stick welded joints must have a minimum of two (2) passes including a “root” pass and have minimal undercut when complete.(7-1-25)

i.In addition to meeting these standards, all wells that are constructed for public drinking water systems must meet casing wall thickness requirements set forth by the Idaho Department of Environmental Quality Rules, IDAPA 58.01.08, “Idaho Rules for Public Drinking Water Systems.”(7-1-25)

ii.The well driller must install steel casing that meets or exceeds the American Society of Testing and Materials (ASTM) standard A53, Grade B or American Petroleum Institute (API) 5L Grade B, and that meets the following specifications for wall thickness:

Minimum Single-Wall Steel Well Casing Thickness1 for Selected Diameters (inches)

Nominal 8 1012141618202224262830 Depth (ft.)Nominal Wall Thickness (in.) <1000.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 100-2000.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 200-3000.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 300-4000.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.375 0.375 0.375 0.375 400-6000.250 0.250 0.250 0.250 0.250 0.250 0.250 0.250 0.375 0.375 0.375 0.375 0.375

b.Thermoplastic Casing. Thermoplastic casing must have a minimum rating of SDR-21 or a minimum rating of Schedule 40 for nominal diameters of four (4) inches or less. The well driller must not use thermoplastic casing under any condition where the manufacturer’s resistance to hydraulic collapse pressure (RHCP) or total depth specifications are exceeded. Thermoplastic casing extending above-ground must be protected from physical and ultraviolet light damage by enclosing it within steel casing extending at least twelve (12) inches above land surface and finished grade and to a minimum depth of eighteen (18) feet below land surface or five (5) feet below land surface for monitoring wells.(7-1-25)

i.If used as casing within unconsolidated or unstable consolidated formations, thermoplastic pipe must be centralized and fully supported throughout the unstable zone(s) with filter pack or seal material as required by these rules.(7-1-25)

ii.All thermoplastic casing must be installed in accordance with the manufacturer’s recommendations and specifications, and as required by these rules. The well driller will not treat thermoplastic pipe in any manner that would adversely affect its structural integrity. The well driller must:(7-1-25)

(1)Ensure that the weight of the pump assembly, if secured to the thermoplastic pipe, does not exceed the weight limitations per manufacturer’s recommendations or cause damage to the pipe resulting in breaks or leaks.

(2)Not use Type III (high-early strength) Portland cement-based seal materials in direct contact with thermoplastic pipe unless approved by the Director.(3-18-22)

(3)Not drive, drop, force, or jack thermoplastic pipe into place. Thermoplastic pipe must be lowered or floated into an oversized, obstruction-free borehole.(3-18-22)

c.Perforated Well Casing. Perforated well casing may be used in the construction or decommissioning of a well when such application does not violate any standards required by these rules.(3-18-22) 05Liner. To prevent damage to pumping equipment, steel or thermoplastic pipe meeting the specifications and conditions for use as casing may be installed as liner. Thermoplastic liners must not be used in unconsolidated formations or unstable units.(7-1-25)

06.Screen. Well screens must be used in constructing a well when necessary to avoid sand production (see sand production, Rule 25, Subsection 025.24). Well screens must be commercially manufactured, be slotted, 600-8000.250 0.250 0.250 0.250 0.250 0.250 0.375 0.375 0.375 0.375 0.375 0.375 0.375 800-10000.250 0.250 0.250 0.250 0.375 0.3750.375 0.375 0.375 0.375 0.375 0.375 0.375 1000-15000.280 0.322 0.365 0.375 0.375 0.3750.375 0.375 0.375 0.375 0.375 0.375 0.375 1500-20000.280 0.322 0.365 0.375 0.375 0.3750.375 0.375 0.375 0.375 0.375 0.375 0.375 1Compliance with the minimum nominal wall thicknesses listed is required for any depth or location where casing is used to prevent caving or collapse, or both, of the borehole or serves as a solid inner barrier to allow for the installation of an annular seal. 2For nominal casing diameters less than six (6) inches, the minimum nominal wall thickness must be equivalent to ASTM Schedule 40. 3For any other casing diameter not addressed herein, prior approval by the Director is required.

Minimum Single-Wall Steel Well Casing Thickness1 for Selected Diameters (inches)

Nominal 8 1012141618202224262830 louvered or wire wrapped, and be installed to the manufacturers specifications.(7-1-25)

a.Screens may require a filter pack consisting of sand or gravel to further reduce the quantity of sand produced from the well.(3-18-22)

b.The well driller will not install well screens, perforated casing or filter pack across a confining layer(s) separating aquifers of different pressure, temperature, or quality.(3-18-22)

07.Use of Approved Sealing Materials and Required Annular Space. Well casings must be sealed in the required annular space with approved material to prevent the possible downward movement of surface waters or other fluids in any annular space around the well casing (Figure 02, Appendix A). Proper sealing is also required to prevent the movement of groundwater either upward or downward from zones of different pressure, temperature or quality within the well or outside the casing. The well driller must notify by phone the Department’s appropriate Region Office at least four (4) hours in advance of placing any annular seal to provide Department staff the opportunity to observe seal placement.(7-1-25)

a.All casing to be sealed must be adequately centralized to ensure uniform seal thickness around the well casing. Surface seals must extend to not less than thirty-eight (38) feet below land surface for well depths greater than thirty-eight (38) feet. For well depths less than thirty-eight (38) feet, seals must extend to depths as hereafter required.(3-18-22)

b.Seals are required at depths greater than thirty-eight (38) feet in artesian wells or to seal through confining layers separating aquifers of differing pressure, temperature, or quality in any well.(3-18-22)

c.When a well is modified and the existing casing is moved or the original seal is damaged, or a well driller discovers that a seal was not installed or has been damaged, the well driller must repair, replace, or install a seal around the permanent casing that is equal to or better than required when the well was originally constructed.

d.Manufactured packers, shale traps, and cementing baskets may be used as devices to retain approved seal material when installing a required annular seal. Whenever these devices are used to retain seal material, the well driller must comply with the manufacturer’s recommendations for installation.(7-1-25)

e.If a temporary casing has been installed, upon completion of the drilling, the annular space must be filled with approved seal material and kept full while withdrawing the temporary casing. Bentonite chips should be used with caution when the annular space between a temporary casing and permanent casing is filled with water.

i.When attempts at removing a temporary casing are unsuccessful, the casing must be sealed in place by a method approved by the department.(3-18-22) ii.

The well driller must notify the department whenever a temporary casing can not be removed and propose a plan to adequately seal the casing to prevent waste and contamination of the ground water. The plan must detail how the casing will be sealed on the outside to a sufficient depth below land surface in addition to placement of any required formation seals through the interval at which the casing will remain.(3-18-22)

f.For mixed grout seals the minimum annular space required must provide for a uniform seal thickness not less than one (1) inch on all sides of the casing or a borehole at least two (2) inches larger than the outside diameter (OD) of the casing to be sealed (Figure 02, Appendix A). (Note: a seven and seven-eighths (7 7/8) inch diameter (eight (8) inch nominal) borehole around a six and five-eighths (6 5/8) inch OD (six (6) inch nominal casing does not satisfy the minimum annular space requirements).(3-18-22)

i.When placing grout seals with a removable tremie pipe between casing strings or between a borehole and casing, the required annular space must be one (1) inch or equal to the OD of the tremie pipe, whichever is greater. Permanent tremie pipes will be considered as a casing string and subject to minimum annular space requirements in addition to the annular space requirements around the well casing (Figure 03, Appendix A). (7-1-25)

ii.All grout seals must be placed from the bottom up, by using an approved method. Bentonite grout must not be used above the water table unless specifically designed and manufactured for such use and approved by the Director in advance.(3-18-22)

iii.If cement-based grout (neat cement or neat cement grout) is used to create a seal, the casing string sealed must not be moved or driven after the initial set. Construction must not resume for a minimum of twenty-four (24) hours following seal placement;(3-18-22)

g.For dry bentonite seals the minimum annular space required must provide for a uniform seal thickness not less than one and five-eighths (1 5/8) inches on all sides of the casing or a borehole at least four (4) inches larger than the “nominal diameter” of the casing to be sealed. e.g., (six and five-eighths (6 5/8) inch OD (six (6) inch nominal) casing requires a ten and three fourths (10 3/4) inch OD (ten (10) inch nominal) temporary casing or a nine and seven-eighths (9 7/8) inch (ten (10) inch nominal) minimum borehole). Listed below are additional annular space requirements and limitations for placement of dry bentonite seals:(3-18-22)

i.All dry bentonite seals must be tagged during placement and consider volumetric calculations to verify placement.(3-18-22)

ii.Installation of dry bentonite seals must be consistent with the manufacturers’ recommendations and specifications for application and placement.(3-18-22)

iii.Granular bentonite must not be placed through water.(3-18-22)

iv.If a granular bentonite seal is placed deeper than two hundred (200) feet, the minimum annular space must be increased by at least one (1) inch e.g., (six and five-eighths (6 5/8) inch OD (six (6) inch nominal) casing requires a twelve and three fourths (12 3/4) inch OD (twelve (12) inch nominal) temporary casing or an eleven and seven eights (11 7/8) inch (twelve (12) inch nominal) minimum borehole).(3-18-22)

v.Bentonite chips and pellets may be placed through water or drilling fluid of appropriate viscosity.

Bentonite chip seals placed through more than fifty (50) feet of water or drilling fluid will require the minimum annular space to be increased by at least one (1) inch e.g., (six and five-eighths (6 5/8) inch OD (six (6) inch nominal) casing requires a twelve and three fourths (12 3/4) inch OD (twelve (12) inch nominal) temporary casing or an eleven and seven eights (11 7/8) inch (twelve (12) inch nominal) minimum borehole).(7-1-25)

08.Sealing of Wells. Sealing requirements described herein are minimum standards that apply to all wells. The Director may establish alternate minimum sealing requirements in specific areas when it can be determined through detailed studies of the local hydrogeology that a specific alternate minimum will provide protection of the ground water from waste and contamination.(3-18-22)

a.Consolidated Formations. When a well encounters consolidated formations above the water table and is constructed to acquire water from an unconfined aquifer in the consolidated formations, casing must be installed so that it extends and is sealed to a depth not less than thirty-eight (38) feet (Figure 04, Appendix A). If the well depth is less than thirty-eight (38) feet from land surface, well casing must be installed and sealed five (5) feet into the consolidated formation or to a depth of eighteen (18) feet, whichever is greater.(7-1-25)

b.Unconsolidated Formations without Confining Layers of Clay. When a well encounters unconsolidated formations above the water table and is constructed to acquire water from an unconfined aquifer in the unconsolidated formations, casing must extend to at least five (5) feet below the water table and be sealed to a depth not less than thirty-eight (38) feet (Figure 05, Appendix A). If the well depth is less than thirty-eight (38) feet well casing must extend to at least five (5) feet below the water table or eighteen (18) feet, whichever is greater, and be sealed to a depth of at least eighteen (18) feet.(7-1-25)

i.The extensive (for example, one hundred fifty (150) feet thick or more) unconsolidated, nonstratified, sand and gravel of the Rathdrum Prairie are characterized by extremely high transmissivity and hydraulic conductivity. Under these conditions, sealing wells to depths greater than eighteen (18) feet may not be additionally protective. When a water well is drilled within the boundaries of the Rathdrum Prairie, (shown in Figure 06, Appendix A of these rules), casing must extend to at least five (5) feet below the water table and be sealed to a depth not less than eighteen (18) feet (Figure 07, Appendix A).(7-1-25)

c.Unconsolidated Formations with Confining Layers of Clay. When a well is drilled into and acquires water from an aquifer that is overlain by unconsolidated deposits such as sand and gravel, and there are confining layers above the water table, well casing must be installed from the land surface to the confining layer immediately above and in contact with the production zone and sealed to a depth not less than thirty-eight (38) feet (Figure 08, Appendix A). If the well depth is less than thirty-eight (38) feet from land surface, well casing must extend and be sealed into the first confining layer or to a depth of eighteen (18) feet, whichever is greater.(7-1-25)

09.Sealing Artesian Wells.(3-18-22)

a.Unconsolidated Formations. When artesian water is encountered in unconsolidated formations, the production zone or open interval must be limited to zones of like pressure, temperature, and quality. Water encountered in oxidized sediments must not be comingled with water encountered in reduced sediments. Well casing must extend from land surface into the lower most confining layer above the production zone, and must be sealed:

i.From land surface to a depth of at least thirty-eight (38) feet; and(3-18-22)

ii.Through all confining layer(s); and(3-18-22)

(1)A minimum of five (5) feet of seal material must be placed into or through the lower most confining layer above the production zone (Figure 09, Appendix A); or(3-18-22)

(2)Five (5) feet into or through the lowermost confining layer above the production zone and continuously to land surface (Figure 09, Appendix A).(3-18-22)

iii.If the well depth is less than thirty-eight (38) feet, the well must be cased and sealed from land surface to the confining layer in direct contact with the production zone or to a depth of eighteen (18) feet, whichever is greater.(3-18-22)

b.Consolidated Formations. When artesian water is encountered in a consolidated formation, well casing must be installed and sealed from land surface to a depth of at least thirty-eight (38) feet; and(3-18-22)

i.If the consolidated formation is overlain by a permeable formation(s) and water will rise above the consolidated formation, well casing must extend and be sealed at least five (5) feet into the confining portion of the consolidated formation (Figure 10, Appendix A).(3-18-22)

ii.If the well depth is less than thirty-eight (38) feet, the well must be cased and sealed from land surface five (5) feet into the confining consolidated formation or to a depth of eighteen (18) feet, whichever is greater.

c.Control Device. Pursuant to Section 42-1603, Idaho Code, if the well flows at land surface, it must be equipped with a control device approved by the Director, so that the flow can be completely stopped. If leaks occur around the well casing or adjacent to the well, the leakage must be eliminated to the extent possible with approved seals, casing, or other means approved by the Director.(7-1-25)

i.Flowing artesian wells must be equipped with an ap proved pressure gage fitting that will allow access for measurement of shut-in pressure of a flowing well. All pressure gage fittings must include control valves such that the pressure gage can be removed without resulting in artesian flow from the well.(3-18-22)

ii.The well driller must not move his well drilling rig from the site until all requirements have been satisfied. Some mixing of water may be allowed to develop an adequate water well; however, the mixing must be restricted to water zones of similar pressure, temperature and quality. The driller must take precautions to case and seal out zones which may lead to waste or contamination.(3-18-22)

10.Alternative Methods for Sealing Wells. To accommodate new technology, and in consideration of the wide variety of drilling equipment used to construct wells, other methods of sealing wells not specifically addressed in these rules may be allowed. The Director may consider specific proposals for alternative methods of sealing on a case by case basis. Director approval or acceptance of such procedures will not constitute a “waiver” of any requirements of these rules. In such cases, the well driller must provide sufficient information for the Director to determine that the full intent of the sealing requirements will be satisfied if an alternative method is employed. If it is determined that a specific alternate method will provide protection of the ground water from waste and contamination, the Director may issue a statement of acceptance qualifying the use and implementation of such methods.(7-1-25)

11.Injection Wells. In addition to meeting the requirements of Rule 25 of these rules, the construction, modification, or decommissioning of all injection wells over eighteen (18) feet in vertical depth must also comply with the IDAPA 37.03.03, “Rules for the Construction and Use of Injection Wells,” and the injection well permit.

Drillers must obtain from the Director a certified copy of the permit authorizing construction or modification of an injection well before beginning work.(7-1-25)

12.Cathodic Protection Wells. All cathodic protection wells must be constructed by a licensed well driller in compliance with these rules. A detailed construction plan must be included with the drilling permit application.(3-18-22)

13.Monitoring and Remediation Wells. All monitoring wells and remediation wells must be constructed and maintained in a manner that will prevent waste or contamination and as otherwise required by these rules. When a monitoring well or a remediation well is no longer useful or needed, the owner or operator of the well must decommission the well in accordance with Rule 25, Subsection 025.16 of these rules. No person may divert ground water from a monitoring well or a remediation well for any purpose not authorized by the Director. The application for a permit for all monitoring wells and all remediation wells must include a design proposal prepared by a licensed engineer or registered geologist pursuant to Section 42-235, Idaho Code. Blanket permits for monitoring well and remediation well networks may be approved for site-specific monitoring and remediation programs. The designs and specification for monitoring wells and remediation wells must demonstrate that:(7-1-25)

a.The ground water resources are protected against waste and contamination;(3-18-22)

b.The well(s) will inject or withdraw only fluids, gases or solutions approved by the Director;

c.The well(s) will be constructed to prevent aquifer commingling; and(7-1-25)

d.The well(s) will be properly decommissioned upon project completion and in accordance with these rules.(7-1-25)

14.Closed Loop Heat Exchange Wells. The well driller must construct closed loop heat exchange wells consistent with these rules. The well driller is not required to install steel casing in such wells. When constructing a closed loop heat exchange well, the well driller must:(3-18-22)

a.Construct each borehole of sufficient size to provide the annular space required by these rules.

b.Seal the annular space of each borehole with approved seal material in accordance with these rules;

c.Install fluid-tight circulating pipe, composed of high-density polyethylene, grade PE3408, minimum cell classifications PE355434C or PE345434C conforming to ASTM Standard D3350, or another Directorapproved pipe;(7-1-25)

d.Join pipe using thermal fusion techniques according to ASTM Standards D-3261 or D-2683. All personnel creating such system joints must be trained in the appropriate thermal fusion technologies;(3-18-22)

e.Use only propylene glycol, or other circulating fluid approved by the Director;(3-18-22)

f.Ensure that any other system additive is NSF approved and has prior approval from the Director;

g.Pressure test each loop with potable water prior to grout installation;(3-18-22)

h.Pressure test the system with potable water prior to installation of the circulating fluid at one hundred percent (100%) of the designed system operating pressure for a minimum duration of twenty-four (24) hours; and(3-18-22)

i.Properly repair or decommission all loops failing the test by pressure pumping approved seal material through the entire length of each failed loop. After grouting, loop ends must be fused together or capped.

15.Access Port or Pressure Gage. Upon completion the well must be equipped with an access port that will allow for measurement of the depth to water or an approved pressure gage fitting that will allow access for measurement of shut-in pressure of an artesian flowing well. All pressure gage fittings must include control valves such that the pressure gage can be removed. Approved access ports are illustrated in Figures 1 and 11, APPENDIX A, together with approved locations for pressure gage fittings. Air lines are not a satisfactory substitution for an access port. Nonflowing domestic and stock water wells that are to be equipped with a sanitary seal with a built-in access port are exempt from this requirement.(7-1-25)

16.Decommissioning of Wells.(7-1-25)

a.The well owner is charged with maintaining and properly decommissioning a well in a manner that will prevent waste or contamination, or both, of the ground water. No person is allowed to decommission a well in Idaho without first obtaining a driller’s license or receiving a waiver of the license requirement from the Director of the Department of Water Resources. Authorization is required from the Director prior to decommissioning any well.

Upon decommissioning, the person who decommissioned the well must submit to the Director a report describing the procedure.(7-1-25)

b.The Director may require decommissioning of a well in compliance with the provisions of these rules, if the well:(3-18-22)

i.Does not meet minimum well construction standards;(3-18-22)

ii.Meets the definition of an unusable well;(3-18-22)

iii.Poses a threat to human health and safety;(3-18-22)

iv.Is in violation of IDAPA 58.01.11, “Ground Water Quality Rule”; or(3-18-22)

v.Has no valid water right or other authorization acceptable to the Director for use of the well.

c.When required by the Director, decommissioning must be done in accordance with the following:

i.Cased wells and boreholes without a continuous seal from the top of the intakes or screen to the surface. The well driller must use one (1) of the following methods as applicable:(3-18-22)

(1)The Director may require that well casing be perforated every five (5) feet from the bottom of the casing to within five (5) feet of the surface. Perforations made must be adequate to allow the free flow of seal material into any voids outside the well casing. There must be at least four equally spaced perforations per section circumference. Approved grout must be pressure pumped to fill any voids outside of the casing. A sufficient volume must be used to completely fill the well and annular space; or(3-18-22)

(2)Fill the borehole with approved seal material as the casing is being removed.(3-18-22)

ii.Cased wells and boreholes with full-depth seals. If the well is cased and sealed from the top of the screen or production zone to the land surface, the well must be filled with approved seal material.(7-1-25)

iii.Uncased wells must be filled with approved seal material.(7-1-25)

iv.Dry hole wells or wells from which the quantity of water to meet a beneficial use cannot be obtained must be decommissioned with approved seal material in accordance with these rules.(7-1-25)

17.Completion of a Well. The Director will consider that every well is completed when the well drilling equipment has been removed, unless written notice has been given to the Director by the well driller that he intends to return and do additional work on the well within a specified period. Upon completion of the well, the well must meet all required standards.(7-1-25)

a.Upon completion of drilling and prior to removal of well drilling equipment from a water well site, the top of the casing must be completely covered with:(3-18-22)

i.A one-fourth inch (1/4”) thick solid, new or like-new steel plate with a three-fourths inch (3/4) threaded and plugged access port, welded to and completely covering the casing (Figure 12, Appendix A); or

ii.A threaded cap, or a commercially manufactured watertight sanitary well cap (Figure 12, Appendix A); or(3-18-22)

iii.A commercially manufactured water-tight, snorkel-vented or non-vented well cap on any well susceptible to submergence; or(3-18-22)

iv.A control device approved by the Director per Section 42-1603, Idaho Code, on any well that flows at land surface (Figure 11, Appendix A).(3-18-22)

b.Upon the completion of every well, the well driller must permanently affix the stainless steel well tag to the steel casing in a manner and location that maintains tag legibility. For closed loop heat exchange wells, the well driller must obtain approval for the well tag placement and method of attachment. The well driller must secure each tag by:(7-1-25)

i.A full-length weld across the top and down each side of the tag; or(3-18-22)

ii.Using one (1) stainless steel, closed-end domed rivet near each of the four (4) corners of the tag.

iii.Prior to welding or riveting, the tag must be pre-shaped to fit the casing such that both sides to be welded or riveted touch the casing and no gaps exist between the tag and casing.(3-18-22)

18.Pitless Adapters. When a pitless adaptor is used (Figure 12, Appendix A), the adaptor should be of the type approved by the NSF International testing laboratory or the approval code adopted by the Pitless Adaptor Division of the Water Systems Council. The pitless adaptor, including the cap or cover, casing extension, and other attachments, must be so designed and constructed to be water tight and to prevent contamination of the potable water supply from external sources. If a permanent surface or outer casing is installed and is cut off or breached to install the pitless adapter on an inner well casing or liner, the space between the permanent outer casing and the liner or inner casing m ust be sealed. The well owner or person installing the pitless adaptor must then seal the excavation surrounding the pitless adaptor using an approved seal material.(3-18-22)

19.Pump Installation. No person is allowed to install a pump into any well that would cause a violation of these rules or other applicable rules or state law.(7-1-25)

20.Explosives. Explosives used in well construction must never be detonated inside the required well casing. Approved explosive casing perforators may be exempted by the Director.(3-18-22)

21.Hydraulic Fracturing. Hydraulic fracturing must be performed only by well drillers licensed in Idaho. The pressure must be transmitted through a drill string and must not be transmitted to the well casing. The driller must provide a report to the Director of the fracturing work which must include well location, fracturing depth, fracturing pressures and other data as requested by the Director.(3-18-22)

22.Drilling Fluids or Drilling Additives. The well driller must use only potable water and drilling fluids or drilling additives that are manufactured for use in water wells, are NSF International, American Petroleum Institute (API), or ASTM/ANSI approved; and do not contain a concentration of any substance in excess of Primary Drinking Water Standards, as set forth in IDAPA 58.01.08, “Rules for Public Drinking Water Systems,” according to manufacturer’s specifications. The well driller may seek approval from the Director to use specific, non-certified products on a case-by-case basis. In addition, the well driller must ensure the containment of all drilling fluids and materials used or produced to the immediate drilling site, and will not dispose of such fluids or materials into any streams, canals, boreholes, wells, or other subsurface pathways.(3-18-22)

23.Disinfection and Decontamination. Upon completion of a well, the driller is responsible for adding the appropriate amount of disinfecting chemical compound and distributing it throughout the well to achieve a uniform concentration for “in place” disinfection of the well. Chlorine compounds used in accordance with the table listed below will satisfy this requirement. Other methods may be used if approved by the Director in advance.

24.Sand Production. The maximum sand content produced from a well after initial well development must not exceed fifteen (15) ppm. This rule applies to any sediment particle retained on a U.S. standard sieve #200 (seventy-five hundredths (0.075) mm to two (2) mm).

a.When necessary to mitigate sand production the well driller must:(3-18-22)

i.Construct each well with properly sized casing, screen(s) or perforated intake(s); and(3-18-22)

Amount of Chlorine Needed Per 100 Feet of Water in Well Casing Gallons of water in casing per 100 ft. of water depth Amount of 5.25% Sodium Hypochlorite (Unscented Laundry Bleach)

Amount of 65% Calcium Hypochlorite (Chlorine Granules) 61472 ¼ cups3 tbsp 82614 cups5 tbsp 104086 ¼ cups½ cup 125889 cups¾ cup 1610441 gal1 ¼ cup Note: 1 gal = 4 qt = 8 pt = 16 cups; 1 cup = 16 tbsp Chlorine granules or tablets must be dissolved and placed into the well as a solution.

If another concentration of hypochlorite solution is used, the following equation should be used for calculating amounts.

(Volume of water in gallons) X (0.08) / % Hypochlorite (e.g. 50% = 50) = cups of hypochlorite Example: To treat 147 gallons of water using a 50% concentration of hypochlorite solution:

(147 gallons water) X (0.08) / 50 = .23 (or approximately 1/4) cup of 50% Hypochlorite solution

ii.Install properly sized filter pack(s); or(3-18-22)

iii.Install pre-packed well screens; or(3-18-22)

iv.Employ other methods approved by the Director.(3-18-22)

b.The Director may grant a waiver exempting a well producing water that exceeds the maximum sand content only if the well driller has met the requirements of Rule 25, Subsection 025.24.a.(3-18-22)

c.Sand production in public drinking water system wells. Wells used in connection with a public drinking water system have more stringent requirements. See IDAPA 58.01.08, “Idaho Rules for Public Water Systems.”(7-1-25)

25.Well Development and Testing. For each well the well driller must measure and record the static (non-pumping) water level and the pumping water level, and the production rate. The production rate will be determined by a pump, bailer, air-lift, or other industry approved test of sufficient duration to establish production from the well. For wells with no returns the driller must report no returns and the static water level. The well driller’s report must document this information.(7-1-25)

IDAPA 37.03.09.026 (Reserved)

IDAPA 37.03.09.030 Construction of Low Temperature Geothermal Resource Wells and

BONDING (RULE 30).

01.General. D rillers constructing low temperature geothermal resource wells (bottom hole temperature more than eighty-five (85) degrees Fahrenheit and less than two hundred twelve (212) degrees Fahrenheit) must be qualified under the Well Driller Licensing Rules. All low temperature geothermal resource wells must be constructed in such a manner that the resource will be protected from waste due to lost artesian pressure and temperature. The owner or well driller is required to provide bottom hole temperature data, but the Director may make the final determination of bottom hole temperature, based upon information available to him.(3-18-22)

a.All standards and guidelines for construction and decommissioning of cold water wells apply to low temperature geothermal resource wells except as modified by Rule 30, Subsections 030.03, 030.04, and 030.06.

b.When low temperature geothermal resources are known or anticipated, a drilling prospectus must be submitted to and approved by the Director prior to the construction, modification, deepening or decommissioning of any low temperature geothermal resource well. The well owner and the well driller are responsible for the prospectus and subsequent well construction.(7-1-25)

02.Well Owner Bonding. The owner of any low temperature geothermal resource well must file a surety bond or cash bond as required by Section 42-233, Idaho Code, with the Director in an amount not less than five thousand dollars ($5,000) nor more than twenty thousand dollars ($20,000) payable to the Director prior to constructing, modifying or deepening the well after July 1, 1987. The bond amount will be determined by the Director within the following guidelines. The bond will be kept in force for one (1) year following completion of the well or until released in writing by the Director, whichever occurs first.(3-18-22)

a.The owner of an artesian low temperature geothermal resource well must maintain a bond of five thousand dollars ($5,000).(7-1-25)

b.The owner of a low temperature geothermal resource well which flows at land surface must maintain a bond of ten thousand dollars ($10,000).(7-1-25)

c.The owner of a flowing low temperature geothermal resource well with a bottom hole temperature of 140 degrees Fahrenheit or more must maintain a bond of twenty thousand dollars ($20,000).(7-1-25)

d.The Director may decrease or increase the bonds required if it is shown to his satisfaction that well construction or other conditions merit an increase or decrease.(3-18-22)

e.The bond requirements of Section 42-233, Idaho Code, are applicable to wells authorized by water right permits or licenses having a priority date earlier than July 1, 1987, if the well authorized by the permit or license was not constructed prior to July 1, 1987, or if an existing well constructed within the terms of the permit or license is modified, deepened or enlarged on or after July 1, 1987.(7-1-25)

03.Casing. Low temperature geothermal resource wells must be properly cased and sealed to protect from cooling by preventing intermingling with cold water aquifers. Casing may consist of several different casing strings (i.e. conductor pipe, surface casing, intermediate casing, production casing) provided drilling depth does not exceed ten times the depth of the last cemented casing.(7-1-25)

a.Steel casing which meets or exceeds the minimum specifications for permanent steel casing of Rule 25, Subsection 025.04 must be installed in every well. The Director may require a more rigid standard for collapse and burst strength as depth or pressures may dictate. Low temperature geothermal resource wells drilled in areas where existing wells are known to flow at land surface must have a minimum of forty (40) feet of conductor pipe set and sealed its entire length to provide anchorage for well head control devices.(7-1-25)

b.If artesian pressure is encountered, casing must be installed from twelve (12) inches above land surface and be sealed with approved seal material into the overlying confining strata of the thermal aquifer. The casing schedule may consist of several different casing strings which may all extend to land surface or may be overlapped and sealed or packed to prevent fluid migration out of the casing at any depth (Figure 13, Appendix A).

c.All casing designations must be by O.D. and wall thickness. The last string of casing set during drilling operations must, at the Director’s option, be flanged and capable of mounting a valve or blow out prevention equipment to control flows at the surface before drilling resumes.(7-1-25)

04.Sealing of Casing. Cement or a cement grout mixture is required for wells with a bottom hole temperature of greater than 140 degrees Fahrenheit. All mixed grout seal material must be placed from the bottom up either through the casing or tubing or by use of a tremie pipe. Cement or cement grout must be undisturbed for a minimum of twenty-four (24) hours or as needed to allow adequate curing.(7-1-25)

a.A caliper log may be run for determining the volume of seal material to be placed with an additional twenty-five (25%) percent on site ready for mixing. If a caliper log is not run, an additional one hundred (100%) percent of the calculated volume of seal material must be on site ready for placement.(7-1-25)

b.When placing mixed grout seal material if there is no return at the surface after circulating all of the mixture on site, the Director will determine whether remedial work should be done to ensure no migration of fluids around the well bore.(7-1-25)

c.The use of additives such as bentonite, accelerators, retarders, and lost circulation material must follow manufacturer’s specifications.(3-18-22)

05.Blow Out Prevention Equipment. The Director may require the installation of gate valves or annular blow out prevention equipment to prevent the uncontrolled blow out of drilling mud and geothermal fluid.

06.Repair of Wells. The well driller must submit a drilling prospectus to the Director for review and approval prior to the repair or modification of a low temperature geothermal resource well.(3-18-22)

07.Decommissioning of Wells. Proper decommissioning of any low temperature geothermal resource well requires the following:(7-1-25)

a.All mixed grout seal material must be pumped into the hole through drill pipe or tubing.(7-1-25)

b.All open annuli must be filled with approved seal material.(7-1-25)

c.Approved seal material at least one hundred (100) feet in vertical depth must be placed straddling (fifty (50) feet above and fifty (50) feet below) the zone where the casing or well bore meets the upper boundary of each ground water aquifer.(7-1-25)

d.A minimum of one hundred (100) feet of approved seal material must be placed straddling each drive shoe or guide shoe on all casing including the bottom of the conductor pipe.(7-1-25)

e.A surface plug of approved seal material must be placed from at least fifty (50) feet below the top of the casing to the top of the casing.(7-1-25)

f.Approved seal material must extend at least fifty (50) feet above and fifty (50) feet below the top of any liner installed in the well. The Director may waive this rule upon a showing of good cause.(7-1-25)

g.Other decommissioning procedures may be approved by the Director if the owner or operator can demonstrate that the low temperature geothermal resource, ground waters, and other natural resources will be protected.(7-1-25)

h.Approval for decommissioning of any low temperature geothermal well must be in writing by the Director prior to the beginning of any decommissioning procedures.(7-1-25)

IDAPA 37.03.09.031 (Reserved)

IDAPA 37.03.09.035 Health Standards (rule 35)

01.Public Drinking Water System Wells.

In addition to meeting these standards, all wells that are constructed for public supply of domestic water must meet all requirements set forth by the Idaho Department of Environmental Quality Rules, IDAPA 58.01.08, “Idaho Rules for Public Drinking Water Systems.”(7-1-25)

02.Special Standards for Construction of Wells When Mineralized or Contaminated Water Is Encountered. Any time in the construction of a well that mineralized or contaminated water is encountered, the well driller must take the appropriate steps necessary to prevent the poor quality waters from entering the well or moving up or down the annular space around the well casing. The method employed to case and seal out this water will be determined by the well driller, provided all other minimum standards are met. The well driller will take special precautions in the case of filter-packed wells to prevent water of inferior quality from moving vertically in the filter packed portions of the well. All actions taken will be clearly documented on the well driller’s report.(3-18-22)

03.Distances From Contaminant Sources. All water wells constructed for domestic use must comply with minimum distances from septic tanks, drain fields, drainfield replacement area and other siting requirements as set forth in Rule 25, Subsection 025.01.d.(3-18-22)

IDAPA 37.03.09.036 Owners Responsibilities for Well Use and Maintenance (rule 36)

After a well is completed the well owner is responsible for water qual ity testing, properly maintaining the well, and reporting problems with a well to the Director. All wells must be capped, covered and sealed such that debris cannot enter the well, persons or animals cannot fall into the well, and water cannot enter the well around the outside of the casing. Pursuant to Section 42-1603, Idaho Code, the owner of any artesian well that will flow at land surface is required to apply to the Director for approval of a flow control device.(3-18-22)

01.Use. The well owner must not operate any well in a manner that causes waste or contamination of the ground water resource. Failure to operate, maintain, knowingly allow the construction of any well in a manner that violates these rules, or failure to repair or properly decommission any well as herein required will subject the well owner to civil penalties as provided by statute.(7-1-25)

02.Maintenance. The well owner must:(3-18-22)

a.Not allow modification to wells under their control without first obtaining an approved Idaho Department of Water Resources (IDWR) permit, pursuant to Section 42-235, Idaho Code;(3-18-22)

b.Maintain the minimum casing height of twelve (12) inches above land surface and finished grade;

c.Maintain the appropriate well cap, and control device if required, according to these Rules; and

d.Not install or allow the installation of any well pump that would cause a violation of the sand production requirements in accordance with these Rules or allow the well to pump more than that allowed by a valid water right or domestic exemption.(7-1-25)

e.Maintain the well to prevent waste or contamination of ground waters through leaky casings, pipes, fittings, valves, pumps, seals or through leakage around the outside of the casings, whether the leakage is above or below the land surface. Any person owning or controlling a non-compliant well must have the well repaired by a licensed well driller under a permit issued by the Director in accordance with these Rules.(3-18-22)

03.New Construction. The well owner must not construct or allow construction of any permanent building, except for buildings to house a well or plumbing apparatus, or both, closer than ten (10) feet from an existing well.(3-18-22)

04.Maintain All Other Separation Distances. The well owner must not construct or install, or allow the construction or installation of any object listed in a location closer than that allowed by the table of Rule 25, Subsection 025.01.d.(3-18-22)

05.Unusable Wells. The well owner must have any unusable well repaired or decommissioned by a licensed well driller under a permit issued by the Director in accordance with these Rules.(7-1-25)

06.Wells Posing a Threat to Human Health and Safety or Causing Contamination of the Ground Water Resource. The well owner must have any well shown to pose a threat to human health and safety or cause contamination of the ground water resource immediately repaired or decommissioned by a licensed well driller under a permit issued by the Director in accordance with these Rules.(7-1-25)

IDAPA 37.03.09.037 (Reserved)

IDAPA 37.03.09.040 Areas of Drilling Concern (rule 40)

01.General.(3 -18-22)

a.The Director may designate an “area of drilling concern” to protect public health, or to prevent waste and contamination of ground or surface water, or both, because of factors such as aquifer pressure, vertical depth to the aquifer, warm or hot ground water, or contaminated ground or surface waters.(3-18-22)

b.The designation of an area of drilling concern does not supersede or preclude designation of part or all of an area as a Critical Ground Water Area (Section 42-233a, Idaho Code), Ground Water Management Area (Section 42-233b, Idaho Code), or Geothermal Resource Area (Sections 42-4002 and 42-4003, Idaho Code).

c.The designation of an area of drilling concern can include certain aquifers or portions thereof while excluding others. The area of drilling concern may include low temperature geothermal resources while not including the shallower cold ground water systems.(3-18-22)

02.Bond Requirement.(3-18-22)

a.The minimum bond to be filed by the well driller with the Director for the construction or modification of any well in an area of drilling concern is ten thousand dollars ($10,000) unless it can be shown to the satisfaction of the Director that a smaller bond is sufficient.(3-18-22)

b.The Director may determine on a case-by-case basis if a larger bond is required based on the estimated cost to repair, complete or properly decommission a well.(7-1-25)

03.Additional Requirements.(3-18-22)

a.A driller must demonstrate to the satisfaction of the Director that he has the experience and knowledge to adequately construct or decommission a well which encounters warm water or pressurized aquifers.

b.A driller must demonstrate to the satisfaction of the Director that he has, or has immediate access to, specialized equipment or resources needed to adequately construct or decommission a well.(7-1-25)

IDAPA 37.03.09.041 (Reserved)

IDAPA 37.03.09.045 Drilling Permit Requirements (rule 45)

01.General Provisions.

a.Drilling permits are required pursuant to Section 42-235, Idaho Code, prior to construction or modification of any well.(3-18-22)

b.Drilling permits will not be issued for construction of a well which requires another separate approval from the department, such as a water right permit, transfer, amendment or injection well permit, until the other separate permitting requirements have been satisfied.(3-18-22)

c.The Director may allow the use of a start card permit or give verbal approval to a well driller for the construction of cold water single family domestic wells. Start cards must be received by the Department at least two office hours prior to commencing construction of the well.(3-18-22)

d.The Director may give verbal approval to a well driller for the construction of a well for which other permitting requirements have been met, provided that the driller or owner has filed the drilling permit application and appropriate fee.(3-18-22)

e.Verbal approval and the use of a start card permits for wells constructed in a designated Area of Drilling Concern, Critical Ground Water Area, Ground Water Management Area and Areas of Contamination are not allowed unless otherwise authorized by the Director.(7-1-25)

f.A well driller will not construct, drill or modify any well until a drilling permit has been issued, or verbal approval granted.(3-18-22)

02.Effect of a Permit.(3-18-22)

a.A drilling permit authorizes the construction or modification of a well in compliance with these rules and the conditions of approval on the permit.(3-18-22)

b.A drilling permit does not constitute a water right, injection well permit or other authorization which may be required, authorizing use of water from a well or discharge of fluids into a well.(3-18-22)

c.A drilling permit may not be assigned from one owner to another or from one driller to another.

d.A drilling permit authorizes the construction of one (1) well, except for blanket monitoring well and blanket remediation well drilling permits.(3-18-22)

03.Exclusions.For the purposes of these Rules, artificial openings and excavations that do not constitute a well and are not subject to the drilling permit requirements must be modified, constructed, or decommissioned in accordance with minimum well construction standards. The Director may require decommissioning of artificial openings and excavations constructed pursuant to Rule 45, Subsection 045.03 of these rules, when the use ceases or if the holes may contribute to waste or contamination of the ground water. The following types of artificial openings and excavations are not considered wells:(7-1-25)

a.Artificial openings and excavations with total depth less than eighteen (18) feet.(3-18-22)

b.Artificial openings and excavations for mineral exploration or extraction, including gravel pits.

c.Artificial openings and excavations for oil and gas exploration for which a permit has been issued pursuant to Section 47-320, Idaho Code.(3-18-22)

d.Artificial openings and excavations constructed for de-watering building or dam foundation excavations.(3-18-22)

e.Artificial openings and excavations for collecting soil and rock samples and determining geologic properties above and below the water table. Drill rig(s) and support equipment are to remain onsite until the geotechnical boring(s) are decommissioned in accordance with these rules.(7-1-25)

f.Horizontal borings for utility installations.(7-1-25)

04.Fees. Drilling permit fees are as prescribed by Section 42-235, Idaho Code.(3-18-22)

IDAPA 37.03.09.046 (Reserved)

IDAPA 37.03.09.050 Penalties (rule 50)

A person owning or controlling a well that allows waste or cont amination of the state’s ground water resources or causes a well not to meet the construction standards provided in these Rules is subject to the civil penalties as provided by statute. A driller who violates the foregoing provisions of these well construction standards Rules is subject to enforcement action and the penalties as provided by Statute.(3-18-22)

IDAPA 37.03.09.051 (Reserved)

APPENDIX A

Figure 01. Concrete Slabs and Finished Grade Figure 02. Annular Space and Overbore Figure 03. Overbore Requirements When a Tremie Pipe is Left in Place and A Grout Seal Installed Figure 04. Sealing Requirements in Consolidated Formations Figure 05. Sealing Requirements in Unconsolidated Formation without Confining Layers Figure 06. Rathdrum Prairie Boundary Figure 07. Sealing Requirements in the Rathdrum Prairie Figure 08. Sealing Requirements in Unconsolidated Formations with Confining Layers Figure 09. Sealing Requirements for Artesian Wells in Unconsolidated Formations Figure 10. Sealing Requirements for Artesian Wells in Consolidated Formations Figure 11. Access Ports, Pressure Gauges, and Control Valves Figure 12. Well Cap and Access Port Figure 13. Casing Requirements for Low Temperature Geothermal Wells

37.01.01 Rules of Procedure of the Idaho Department of Water Resources

IDAPA 37.01.01.000 Legal Authority

This chapter is adopted under the legal authority of Sections 42-170 1A(1), 42-1734(19), 42-1737(c), 42-1805(8), and 67-5206(5), Idaho Code.(3-18-22)

IDAPA 37.01.01.001 Scope

This chapter contains the rules of proce dure that govern contested case proceedings before the Idaho Department of Water Resources and the Idaho Water Resource Board. These rules do not apply to enforcement actions under Section 42-1701B, Idaho Code.(3-18-22)

IDAPA 37.01.01.002 Definitions

01.Agency.

The Idaho Department of Water Resources or the Idaho Water Resource Board acting within their respective authority to determine contested cases. The term “agency” may include the Director of the Department, members of the Board, employees of the Department or Board, and any duly appointed hearing officers.

02.Agency Action. Agency action means:(3-18-22)

a.The whole or part of an order;(3-18-22)

b.The failure to issue an order; or(3-18-22)

c.An agency’s performance of, or failure to perform, any duty placed on it by law.(3-18-22)

03.Agency Head. The Board or Director of the Department.(3-18-22)

04.Board. The Idaho Water Resource Board.(3-18-22)

05.Contested Case. A formal or informal proceeding which results in the issuance of an order.

06.Department. The Idaho Department of Water Resources.(3-18-22)

07.Director. The director of the Idaho Department of Water Resources.(3-18-22)

08.Exceptions. A petition asking the agency head to review a recommended or preliminary order.

09.Hearing Officer. A hearing officer is a person other than the agency head appointed to preside over a formal proceeding in a contested case on behalf of the agency. Agency heads are not hearing officers, even if they are presiding at contested cases. The term “hearing officer” as used in these rules refers only to officers subordinate to the agency head.(3-18-22)

10.License. The whole or part of any agency permit, license, approval, or similar form of authorization required by law, but does not include a license required solely for revenue purposes.(3-18-22)

11.Order. An agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or more specific persons.(3-18-22)

12.Party. Each person named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, including an applicant, petitioner, respondent, protestant or intervenor.(3-18-22)

13.Person. Any individual, partnership, corporation, association, governmental subdivision, or public or private organization or entity of any character.(3-18-22)

14.Petition. A pleading requesting a modification, amendment or stay of an existing order of the agency, the clarification, declaration or construction of the law administered by the agency, the clarification, declaration or construction of a person’s rights or obligations under law administered by the agency, rehearing of a contested case, or intervention, or to otherwise request the agency take action that will result in the issuance of an order.(3-18-22)

15.Presiding Officer. One (1) or more members of the Board, the Director, or duly appointed hearing officer presiding over a formal proceeding as authorized by statute or rule. When more than one (1) member of the Board conducts a formal proceeding, they may all jointly be presiding officers or may designate one (1) of them to be the presiding officer.(3-18-22)

16.Protest. A pleading opposing or seeking to alter the outcome of an application.(3-18-22)

17.Response. A pleading responding to a motion or petition.(3-18-22)

IDAPA 37.01.01.003 (Reserved)

IDAPA 37.01.01.050 Proceedings Governed

These rules govern contested cases before the Department an d the Board, unless otherwise provided by order of the agency. The Department and the Board through the promulgation of these rules decline to adopt in whole the contested case portions of the “Idaho Rules of Administrative Procedure of the Attorney General,” IDAPA 04.11.01.100 through 04.11.01.799. However, the majority of the rules adopted here are consistent with the provisions of the Attorney General Rules. Certain provisions of the Attorney General Rules are not adopted or are modified to reflect both the statutory authority of and administrative practice before the Department and the Board.

Rulemaking before the Department and the Board is governed by the Attorney General Rules, at IDAPA 04.11.01.05 and 04.11.01.800 through 860.(3-18-22)

IDAPA 37.01.01.051 Liberal Construction

The rules in this chapter will be liberally construed to ensure just, s peedy and economical determination of all issues presented to the agency. The agency may permit deviation from these rules when it finds that compliance with them is impracticable, unnecessary or not in the public interest. Unless required by statute, or otherwise provided by these rules, the Idaho Rules of Civil Procedure and the Idaho Rules of Evidence do not apply to contested cases before the agency.(3-18-22)

IDAPA 37.01.01.052 Identification of Case

Communications pertaining to a contested case before the agency should include a reference to the case number or case name.(3-18-22)

IDAPA 37.01.01.053 Filing and Service of Documents

1. Filing of Documents with the Agency.(3-18-22)

a.Documents may be filed with the agency by mail or personal delivery to the Department’s main office or any of the Department’s regional or field offices. See https://idwr.idaho.gov/contact-us.html for address and contact information. The agency will not accept filings by facsimile. A document sent by mail is considered filed on the date received by the agency. A document required to be accompanied by a filing fee is not considered filed with the agency until the fee is received.(3-18-22)

b.Documents may be filed by email as an alternative to filing by mail or personal delivery, at the following email address: file@idwr.idaho.gov. For purposes of filing by email, a “day” begins at 12:01 a.m. and ends at midnight, Mountain Time. Unless otherwise provided by statute, rule, order or notice, a document is considered filed on the day the email is sent if done so before midnight, Mountain Time, unless that date is a Saturday, Sunday or legal holiday, in which case it is deemed filed on the next available business day. Documents filed by email shall include the case number or, if none, other identifying information in the email caption. A document required to be accompanied by a filing fee is not considered filed with the agency until the fee is received.(3-18-22)

c.If the Department establishes an online process for filing specific applications or notices, filings may occur through the specific online data submittal portal.(3-18-22)

02.Service on Parties and Other Persons.(3-18-22)

a.All documents filed with the agency must be sent by mail or delivered personally to the representatives of each party concurrently with filing the original with the agency.(3-18-22)

b.If authorized by the presiding officer, documents that must be sent by mail or delivered personally to the representatives of each party may be served by email as an alternative to service by mail or personal service. It is not necessary to serve copies by mail or personal service if service is completed by email.(3-18-22)

03.Service of Documents by Agency.(3-18-22)

a.Any person designated by the agency to serve notices or orders issued by the agency shall serve these documents by regular mail, or by certified mail, return receipt requested, or by personal service on the representatives of each party designated pursuant to these rules.(3-18-22)

b.If authorized by the presiding officer, the person designated to serve notices and orders in a contested case may serve those notices and orders by email as an alternative to service by mail or personal service. It is not necessary to serve copies by mail or personal service if service is completed by email.(3-18-22)

4. Format for Electronic Filing and Service. Documents filed or served by email must be in Portable Document Format (PDF) and be text searchable. Each email filing or serving a document cannot be larger than 15 megabytes in size. Documents exceeding 15 megabytes in size may be divided into multiple documents and filed or served in multiple emails.(3-18-22)

5. Proof of Service. Every document filed or served must be accompanied by a proof of service similar to the following certificate:

06.When Service Complete. Unless otherwise provided by statute, these rules, order or notice, service is complete when a copy, properly addressed and stamped, is deposited in the United States mail or the Statehouse mail, if the party is a State employee or State agency, or when there is an electronic verification that an email has been sent.(3-18-22)

IDAPA 37.01.01.054 Computation of Time

Whenever statute, these or other rules, order, or notice requires an act to be done within a certain number of days of a given day, the given day is not included in the count, but the last day of the period so computed is included in the count. If the day the act must be done is Saturday, Sunday or a legal holiday, the act may be done on the first day following that is not Saturday, Sunday or a legal holiday.(3-18-22)

IDAPA 37.01.01.055 Fees

If submitted by mail or in person, fees paid to the agency m ay be paid by cash, money order, bank draft or check payable to the agency. Payments in cash, submitted by mail, are wholly at the risk of the remitter, and the agency assumes no responsibility for their loss. Fees may also be paid by credit card or other digital methods, if allowed by the agency. Filings required to be accompanied by a fee are not complete until the fee is paid.(3-18-22)

CERTIFICATE OF SERVICE

I certify that on the ____ day of _____________ 20____, I served or caused to be served the [insert title of document] to the parties by the following method(s): [Insert name of party or attorney] [Insert email address or mailing address] •Email •USPS Mail (postage paid) •Certified Mail / Return Receipt Requested •Hand Delivery [Signature] _________________________________________ [Insert name of person responsible for service]

IDAPA 37.01.01.056 (Reserved)

IDAPA 37.01.01.100 Informal and Formal Proceedings

Contested cases before the agency s hall be conducted as informal or formal proceedings.(3-18-22)

01.Informal Proceedings Defined. Informal proceedings are wholly administrative evaluations and processes, without a presiding officer and hearing record to be preserved for later agency or judicial review, and with representation according to Rule 201.01.(3-18-22)

02.Formal Proceedings Defined. Formal proceedings are quasi-judicial proceedings conducted by a presiding officer, with a hearing record to be preserved for later agency or judicial review, and with representation according to Rule 201.02.(3-18-22)

03.Order of Proceedings. Unless otherwise directed by the agency, informal proceedings will be used first in an effort to resolve the issues presented in a contested case. If, after the agency has commenced a formal proceeding, the parties to a contested case settle or resolve the issues of the case, the case may return to an informal proceeding. The agency may also utilize informal proceedings, such as settlement conferences, any time after commencement of a formal proceeding.(3-18-22)

IDAPA 37.01.01.101 Informal Proceedings

01.Initial Processing. Informal proceedings include correspondence and the exchange of information between the agency and an applicant or petitioner during the agency’s review of an application or petition. If a protest is filed opposing an application, or a response is filed to a petition, the agency will issue a Notice of Informal Settlement Conference. The agency may also issue a Notice of Informal Settlement Conference in un-protested oneparty contested cases, where a party has requested a hearing before the agency.(3-18-22)

02.Informal Settlement Conference. All parties to a contested case or their representatives must attend the informal settlement conference. The informal settlement conference may be conducted by an agency employee. Informal settlement conferences are used to discuss applications or pleadings, explore settlement options, discuss the commencement and scheduling of formal proceedings, discuss additional informational needs, and evaluate the need for additional informal proceedings or alternative dispute resolution options such as mediation. The agency may conduct additional informal proceedings, which all parties or their representatives must attend, to assess the potential for settlement or resolution of all or a portion of the issues in a contested case.(3-18-22)

03.Stay of Informal Proceedings. During informal proceedings the agency may stay the contested case at the request of the applicant or petitioner, upon stipulation of the parties, when the agency determines that such delay will assist the agency in resolving or deciding the contested case, or when an agency moratorium prevents consideration of the application or petition.(3-18-22)

IDAPA 37.01.01.102 Formal Proceedings

When the agency determines that informal proceedings are unlikely to resolve a contested case, the agency will initiate formal proceedings by issuing a Notice of Prehearing Conference and identifying a presiding officer.

Representation of parties and other persons in formal proceedings is governed by Rule 201.02.(3-18-22)

IDAPA 37.01.01.103 (Reserved)

IDAPA 37.01.01.150 Parties to Contested Cases Listed

Parties to contested cases before the agency are called applicants, petitioners, respondents, protestants, or intervenors.

On reconsideration or exceptions within the agency parties are called by their original titles from the previous sentence.(3-18-22)

IDAPA 37.01.01.151 Applicants

Persons who seek any right, license, award o r authority from the agency.(3-18-22)

IDAPA 37.01.01.152 Petitioners

Persons not applicants who seek to modify, amend or stay existing orders of the agency, to clarify or have the agency declare or construe the law administered by the agency or a person’s rights or obligations under law administered by the agency, to ask the agency to initiate or rehear a contested case (other than an application), to intervene in a contested case, or to otherwise take action that will result in the issuance of an order.(3-18-22)

IDAPA 37.01.01.153 Respondents

Persons who file responses to a petition.(3-18-22)

IDAPA 37.01.01.154 Protestants

Persons who oppose or seek to alter an application and who hav e a statutory right to contest or seek to alter the right, license, or authority sought by an applicant.(3-18-22)

IDAPA 37.01.01.155 Intervenors

Persons, not applicants, petitioners, respondents, or protestants to a proceeding, who are permitted to participate as parties pursuant to Rules 350 through 354.(3-18-22)

IDAPA 37.01.01.156 Rights of Parties and of Agency Staff

Subject to Rules 558, 559, and 600, all parties and agency staff may appear at hearing or argument, introduce evidence, examine witness es, make and argue motions, state positions, and otherwise fully participate in a contested case before the agency.(3-18-22)

IDAPA 37.01.01.157 (Reserved)

IDAPA 37.01.01.200 Identification of Representatives and Address for Service

The initial pleading of a party (be it application, petition, pro test, or motion) must identify the party’s representative, if any, and state the mailing address and email address, if any, to be used for service of all documents. If a representative is identified, service of documents on the named representative is considered valid service upon the party. If an initial pleading is signed by more than one (1) person without identifying a representative for service of documents, the agency may select the person upon whom documents are to be served. A party is responsible for updating the agency with changes to its contact information for service of documents.(3-18-22)

IDAPA 37.01.01.201 Representation of Parties

01.Representation at Informal Proceedings.

Appearances and representation of parties or other persons at an informal proceeding described in Rule 100 and Rule 101 must be as follows:(3-18-22)

a.Natural Person. A natural person may represent himself or herself or be represented by an authorized employee, attorney, or family member, or by a next friend if the person lacks full legal capacity to act for himself or herself.(3-18-22)

b.A partnership may be represented by a partner, authorized employee, or attorney.(3-18-22)

c.A corporation may be represented by an officer, authorized employee, or attorney.(3-18-22)

d.A municipal corporation, local government agency, unincorporated association or nonprofit organization may be represented by an official, officer, authorized employee, or attorney.(3-18-22)

e.A state, federal or tribal governmental entity or agency may be represented by an officer, authorized employee, or attorney.(3-18-22)

02.Appearances and Representation at Formal Proceedings. Appearances and representation of parties or other persons at a formal proceeding described in Rule 100 and Rule 102 must be as follows:(3-18-22)

a.A party who is a natural person may represent himself or herself or be represented by an attorney.

b.A federal or tribal governmental entity or agency may be represented as provided by law. (3-18-22)

c.All other parties shall appear and be represented by an attorney admitted to practice and in good standing in the state of Idaho.(3-18-22)

d.Only parties or their representatives at hearing are entitled to examine witnesses and file, make or argue motions.(3-18-22)

IDAPA 37.01.01.202 Service on Parties and Their Representatives

From the time a party files its initial pleading in a contested case, that party must serve all documents filed with the agency upon all other parties or their designated representatives unless otherwise directed by order or notice or by the presiding officer on the record. The presiding officer may order parties to serve past documents filed in the case upon parties or their representatives.(3-18-22)

IDAPA 37.01.01.203 Withdrawal of Parties

Any party may withdraw from a contested case in writing o r by confirming the withdrawal on the record at a conference or hearing.(3-18-22)

IDAPA 37.01.01.204 Substitution or Withdrawal of Representative

A party’s representative may be changed by notice to the agency and all other parties. A presiding officer, if assigned, may reject the substitution of representative if the substitution would result in an unreasonable delay of the proceeding. Persons representing a party in a contested case before the agency who wish to withdraw their representation must immediately file with the agency a notice of withdrawal of representation and serve that notice on the party represented, and all other parties.(3-18-22)

IDAPA 37.01.01.205 Standards of Conduct

All persons participating in or attending a contested case proceeding before the agency must conduct themselves in an ethical, courteous, and respectful manner during all phases of the proceeding. The presiding officer may exclude a person from a proceeding who in manner or appearance is disruptive or disrespectful. Disruptive conduct or appearance that is serious in nature may be cause for dismissal of the disrupting party from the proceeding. (3-18-22)

IDAPA 37.01.01.206 (Reserved)

IDAPA 37.01.01.210 Pleadings Allowed in Contested Cases

In contested cases, the agency allows t he following pleadings to be filed: applications, petitions, protests, and responses.(3-18-22)

IDAPA 37.01.01.211 (Reserved)

IDAPA 37.01.01.220 Motions

01.Motion - Defined.

A “motion” is a request to the agency to take an action in a contested case.

02.Procedure on Written Motions.(3-18-22)

a. A written motion, affidavit(s) supporting the motion, and briefs supporting the motion, if any, must be filed with the agency and served on the parties.(3-18-22)

b. Briefs or affidavits responding to the motion, if any, must be filed with the agency and served on the parties within fourteen (14) days of the filing of a motion.(3-18-22)

c. The moving party may file a reply brief, which must be filed with the agency and served on the parties within 7 days of the filing of the responsive affidavits or briefs.(3-18-22)

d. The moving party must indicate on the face of the motion whether oral argument is desired.

e. If oral argument has been requested on any motion, the presiding officer may grant or deny oral argument by written or oral notice. The presiding officer may limit oral argument at any time.(3-18-22)

f. Modifications to the time limits in this rule may be granted by the presiding officer for good cause shown.(3-18-22)

03.Motions for Summary Judgment. Motions for summary judgment may be filed in any contested case. Rule 56(a), (c), (d), (e), and (f) of the Idaho Rules of Procedure, apply to such motions before the agency.

IDAPA 37.01.01.221 (Reserved)

IDAPA 37.01.01.300 Form and Content of Pleadings and Written Motions

01.Form. Pleadi ngs should be filed on standard forms created by the agency, if available. Pleadings and written motions not filed on standard forms should include a caption identifying the case at the top of the first page and shall:(3-18-22)

a.Be submitted on white, eight and one-half inch (8 1/2”) by eleven inch (11”) paper printed on one (1) side only;(3-18-22)

b.Identify the case name, case number (if applicable), and title of the document;(3-18-22)

c.Include the mailing address, telephone number, and email address of the person(s) filing the document; and(3-18-22)

d.Have at least one inch (1”) margins on the sides, top, and bottom.(3-18-22)

02.Content of Pleadings and Written Motions. A pleading or written motion shall fully state:

a.The facts upon which it is based;(3-18-22)

b.The provision of statute, rule, order, or other controlling law upon which it is based; and (3-18-22)

c.The relief sought, including any proposed limitation (or the denial) of any right, license, or permit sought in an application.(3-18-22)

d.Petitions for declaratory orders shall state the declaratory ruling that the petitioner seeks. (3-18-22)

IDAPA 37.01.01.301 Notice of Petition for Declaratory Ruling

The agency may provide notice of a peti tion for declaratory ruling in a manner designed to call its attention to persons likely to be interested in the subject matter of the petition.(3-18-22)

IDAPA 37.01.01.302 Defective, Insufficient or Late Pleadings

Defective, insufficient or late pleadings may be returned or dismissed.(3-18-22)

IDAPA 37.01.01.303 Amendments to Pleadings --

WITHDRAWAL OF PLEADINGS.

The agency may allow amendments to pleadings during informal proceedings. The presiding officer may allow amendments to pleadings during formal proceedings. Pleadings will be liberally construed, and defects that do not affect substantial rights of the parties will be disregarded. A party desiring to withdraw a pleading must file a notice of withdrawal of the pleading and serve all parties with a copy. Unless otherwise ordered by the presiding officer, the notice is effective seven (7) days after filing.(3-18-22)

IDAPA 37.01.01.304 (Reserved)

IDAPA 37.01.01.350 Petitions to Intervene

A person who is not already a party to a contested case and who has a direct and substantial interest in the proceeding may petition for an order granting intervention as a party to the contested case.(3-18-22)

IDAPA 37.01.01.351 Form and Contents of Petitions to Intervene

Petitions to intervene must comply with Rules 52, 200, an d 300. The petition must set forth the name and address of the potential intervenor and must state the direct and substantial interest of the potential intervenor in the proceeding.

IDAPA 37.01.01.352 Timely Filing of Petitions to Intervene

Petitions to intervene must be filed at leas t fourteen (14) days before the date set for formal hearing, or by the date of the initial prehearing conference, whichever is earlier, unless a different time is provided by order or notice. Petitions filed after this deadline are considered late and must state a good cause for delay.(3-18-22)

IDAPA 37.01.01.353 Deciding Petitions to Intervene

01.Timely-Filed Petitions. If a timely-filed petition to intervene shows direct and substantial interest in any part of the subject matter of a contested case and does not unduly broaden the issues, the agency shall grant intervention, subject to reasonable conditions, unless the applicant’s interest is adequately represented by existing parties.(3-18-22)

02.Late Petitions. The agency may grant late petitions to intervene for good cause shown or may deny or conditionally grant petitions to intervene that are late for failure to state good cause for the late filing, to prevent disruption, to prevent prejudice to existing parties, to prevent undue broadening of the issues, or for other reasons.

03.Order and Notices Issued Prior to Intervention. Intervenors are bound by orders and notices entered in the contested case prior to the approval of the petition to intervene.(3-18-22)

IDAPA 37.01.01.354 Orders Granting Intervention -- Opposition

Any party opposing a petition to intervene must file an objectio n within (7) days of the date the petition is filed.

Responses to the objection must be filed within seven (7) days of the service date of the objection. The objection and responses to the proposed intervention must be served on all parties of record and on the person petitioning to intervene.(3-18-22)

IDAPA 37.01.01.355 Public Witnesses

A person who is not a party and is not called by a party as a wit ness who desires to testify at hearing is a public witness. Public witnesses do not have the right to examine witnesses or otherwise participate in the proceedings as parties. Subject to Rules 555 and 557, public witnesses have a right to introduce evidence at hearing by written or oral statements and to offer exhibits at hearing. Public witnesses are bound by scheduling orders issued in a contested case regarding disclosure of expert reports and exhibits prior to the hearing. A person intending to present public witness testimony shall notify the agency in writing at least five (5) days prior to the hearing and include the name and address of the witness and the general nature or subject matter of the testimony to be given. If the notice is not given, the public witness testimony will only be allowed at the discretion of the presiding officer upon a finding of good cause. Public witnesses are subject to cross-examination and exhibits offered by public witnesses are subject to objection. Public witnesses have no right to seek reconsideration, file exceptions, or appeal.(3-18-22)

IDAPA 37.01.01.356 (Reserved)

IDAPA 37.01.01.410 Appointment of Hearing Officers

Unless otherwise provided by statute or rule, hearing officers may be employees of the agency or independent contractors.

Hearing officers may be (but need not be) attorneys. Hearing officers who are not attorneys should ordinarily be persons with technical expertise or experience in issues before the agency. The appointment of a hearing officer is a public record available for inspection, examination and copying.(3-18-22)

IDAPA 37.01.01.411 Disqualification of Officers Hearing Contested Cases

Presiding officers may be disqualified as provided in Section 67-5252, Idaho Code.(3-18-22)

IDAPA 37.01.01.412 Scope of Authority of Hearing Officers

The scope of hearing officers’ author ity may be restricted in the appointment by the agency.(3-18-22)

01.Scope of Authority. Unless specified in an order from the agency, hearing officers have the authority to:(3-18-22)

a.Decide petitions to intervene and motions;(3-18-22)

b.Schedule cases assigned to the hearing officer, including authority to issue notices of default, of prehearing conference and of hearing;(3-18-22)

c.Schedule and compel discovery, when discovery is authorized before the agency, and to require advance filing of expert testimony, when authorized before the agency;(3-18-22)

d.Consider stipulations and settlements;(3-18-22)

e.Preside at and conduct conferences and hearings, accept evidence into the record, rule upon objections to evidence, rule on dispositive motions, and otherwise oversee the orderly presentation of evidence at hearing in accordance with these Rules; and(3-18-22)

f.Issue a written decision for a contested case, including a narrative of the proceedings, findings of fact, conclusions of law, and a recommended or preliminary order.(3-18-22)

02.Limitation. The hearing officer’s scope of authority may be limited from the standard scope, either in general, or for a specific proceeding.(3-18-22)

IDAPA 37.01.01.413 Challenges to Statutes

A hearing officer in a contested case has no authority to declare a stat ute unconstitutional. However, when a court of competent jurisdiction whose decisions are binding precedent in the state of Idaho has declared a statute unconstitutional, or when a federal authority has preempted a state statute or rule, and the hearing officer finds that the same state statute or rule or a substantively identical state statute or rule that would otherwise apply has been challenged in the proceeding before the hearing officer, then the hearing officer shall apply the precedent of the court or the preemptive action of the federal authority to the proceeding before the hearing officer and decide the proceeding before the hearing officer in accordance with the precedent of the court or the preemptive action of the federal authority.(3-18-22)

IDAPA 37.01.01.414 Ex Parte Communications

Unless required for the disposition of a matter specifically au thorized by statute to be done ex parte, a presiding officer serving in a contested case shall not communicate, directly or indirectly, regarding any substantive issue in the contested case with any party, except upon notice and opportunity for all parties to participate in the communication.

The presiding officer may communicate ex parte with a party concerning procedural matters (e.g., scheduling).

Communications with a presiding officer regarding non-substantive issues from members of the general public not associated with any party are not required to be reported by this rule. A party to a contested case before the agency shall not communicate directly or indirectly with the presiding officer or the agency head regarding any substantive issue in the contested case. When a presiding officer becomes aware of a communication regarding any substantive issue from a party or representative of a party or a member of the general public during a contested case, the presiding officer shall place a copy or written summary of the communication in the file for the case and order the party providing the communication to serve a copy of the communication or written summary upon all parties of record.

Repeated violations of this rule are cause for the presiding officer to dismiss an action or to dismiss a party from a contested case. Written communications from a party showing service upon all other parties are not ex parte communications.(3-18-22)

IDAPA 37.01.01.415 (Reserved)

IDAPA 37.01.01.510 Purposes of Prehearing Conference

To initiate formal proceedings in a contes ted case pursuant to Rule 102, the agency will issue a Notice of Prehearing Conference, identifying the presiding officer for the case and setting the date and time for prehearing conference. The prehearing conference shall be convened for purposes of formulating or simplifying the issues, obtaining concessions of fact or identification of documents to avoid unnecessary proof, scheduling discovery (when discovery is allowed), arranging for the exchange of proposed exhibits or prepared testimony, limiting witnesses, discussing settlement offers or making settlement offers, scheduling hearings, establishing procedure at hearings, and addressing other matters that may expedite orderly conduct and disposition of the proceeding or its settlement.(3-18-22)

IDAPA 37.01.01.511 Additional Conferences

The presiding officer may, following the initial prehearing conference, conve ne additional conferences. Additional conferences will address the topics identified in Rule 510, unless the topics are further defined in the notice of such conference.(3-18-22)

IDAPA 37.01.01.512 Notice of Conference

Notice of the place, date and hour of a confere nce will be served on all parties at least fourteen (14) days before the time set for the conference, unless the presiding officer finds it necessary or appropriate for the notice period to be shortened. Notices must contain the same information as notices of hearing with regard to an agency’s obligations under the American with Disabilities Act.(3-18-22)

IDAPA 37.01.01.513 Record of Conference

Prehearing conferences or status conferences may be held on the record or off the record. Agreements entered into by the parties during a conference may be put on the record during the conference or may be reduced to writing and filed with the agency after the conference.(3-18-22)

IDAPA 37.01.01.514 Orders Resulting from Conference

The presiding officer may issue a prehearing order or notice bas ed upon the results of the agreements reached at or rulings made at a conference. A prehearing order will control the course of subsequent proceedings unless modified by the presiding officer for good cause.(3-18-22)

IDAPA 37.01.01.515 Facts Disclosed Not Part of the Record

Facts disclosed, settlement offers made and all other aspects of negotiation (except agreements reached) in conferences in a contested case are not part of the record unless ordered by the presiding officer upon a stipulation by all parties to a contested case.(3-18-22)

IDAPA 37.01.01.516 (Reserved)

IDAPA 37.01.01.520 Discovery in Contested Cases

01.Kinds of Discovery.

The following kinds of discovery may be authorized by presiding officers in contested cases before the agency:(3-18-22)

a.Deposition through oral examination or written questions;(3-18-22)

b.Written interrogatories;(3-18-22)

c.Requests for Admission;(3-18-22)

d.Requests for production of documents, electronically stored information or tangible things; and

e.Entry upon land or other property for inspection or other purposes;(3-18-22)

02.Rules of Civil Procedure. Unless otherwise provided by statute, rule, order or notice, the scope of discovery is governed by the Idaho Rules of Civil Procedure (see Idaho Rule of Civil Procedure 26).(3-18-22)

IDAPA 37.01.01.521 When Discovery Authorized

No party in a contested case before the agency is entitled t o engage in discovery unless the presiding officer issues an order authorizing discovery, or upon agreement of all parties that discovery may be conducted. The presiding officer may provide a schedule for discovery in an order authorizing discovery, but the order authorizing and scheduling discovery need not conform to the timetables of the Idaho Rules of Civil Procedure. The order authorizing discovery may provide that voluminous records need not be served in a discovery response so long as the records are made available for inspection and copying under reasonable terms. A party, upon reasonable notice to other parties and all persons affected thereby, may seek an order compelling discovery in a manner consistent with the provisions of Rule 37(a) of the Idaho Rules of Civil Procedure. The presiding officer may limit the type and scope of discovery.

IDAPA 37.01.01.522 Rights to Discovery Reciprocal

All parties to a proceeding have a right of discovery of all other parties to a proceeding according to Rule 521 and to the authorizing statutes and rules.(3-18-22)

IDAPA 37.01.01.523 Subpoenas

The presiding officer may issue subpoenas upon a party’s mo tion or upon its own initiative. The presiding officer upon motion to quash made promptly, and in any event, before the time to comply with the subpoena, may quash the subpoena, or condition denial of the motion to quash upon reasonable terms.(3-18-22)

IDAPA 37.01.01.524 Statutory Inspection, Examination, Investigation, Etc

This rule recognizes, but does not enlarge or restrict, the agency’s s tatutory right of inspection, examination, or investigation. This statutory right of the agency is independent of any right of discovery in formal proceedings and may be exercised by the agency whether or not a person is party to a formal proceeding before the agency.

Information obtained from statutory inspection, examination, or investigation may be used in formal proceedings or for any other purpose, except as restricted by statute or rule.(3-18-22)

IDAPA 37.01.01.525 Filing and Service of Discovery-Related Documents

Parties shall send the presiding officer copi es of any notices of deposition or certificates of service stating that discovery requests or responses have been served. Parties shall serve discovery requests and responses on all other parties. Parties shall not serve the presiding officer copies of discovery responses unless it is part of a motion to compel discovery. A motion to compel discovery must be filed within twenty-one (21) days from the day a discovery response was due or twenty-one (21) days from the day a deficient response was served on the moving party.

IDAPA 37.01.01.526 Prepared Testimony and Reports

Presiding officers may require parties to exchange prepared testimony, expert witness reports or rebuttal reports, prior to the hearing.(3-18-22)

IDAPA 37.01.01.527 Sanctions for Failure to Obey

ORDER COMPELLING DISCOVERY.

The presiding officer may impose all sanctions recognized by statute or rules for failure to comply with an order compelling discovery, including but not limited to the sanctions listed in paragraphs (A), (B), and (C) of Rule 37(b)(2) of the Idaho Rules of Civil Procedure.(3-18-22)

IDAPA 37.01.01.528 Protective Orders

As authorized by statute or rule, the presiding officer may issue protective orders limiting access to information generated during settlement negotiations, discovery, or hearing.(3-18-22)

IDAPA 37.01.01.529 (Reserved)

IDAPA 37.01.01.550 Notice of Hearing

Notice of the place, date and hour of hearing will be served on all parties at least fourteen (14) days before the time set for hearing, unless the presiding officer finds by order that it is necessary or appropriate that the notice period to be shortened. Notices must comply with the requirements of Rule 551. Notices must list the names of the parties (or the lead parties if the parties are too numerous to name), the case number or docket number, the names of the presiding officer(s) who will hear the case, the name, address and telephone number of the person to whom inquiries about scheduling, hearing facilities, etc., should be directed, and the names of persons with whom the documents, pleadings, etc., in the case should be filed if the presiding officer is not the person who should receive those documents. If no document previously issued by the agency has listed the legal authority of the agency to conduct the hearing, the notice of hearing must do so. The notice of hearing shall state that the hearing will be conducted under these rules of procedure and inform the parties where they may read or obtain a copy.(3-18-22)

IDAPA 37.01.01.551 Facilities at or for Hearing and A.d.a. Requirements

All hearings must be held in facilities meeting the accessibility requirements of the Americans with Disabilities Act, and all notices of hearing must inform the parties that the hearing will be conducted in facilities meeting the accessibility requirements of the Americans with Disabilities Act. All notices of hearing must inform the parties and other persons notified that if they require assistance of the kind that the agency is required to provide under the Americans with Disabilities Act in order to participate in or understand the hearing, the agency will supply that assistance upon request a reasonable number of days before the hearing. The notice of hearing shall explicitly state the number of days before the hearing that the assistance request must be made.(3-18-22)

IDAPA 37.01.01.552 Methods for Conducting Hearings

Hearings may be held in person or by telephone, video or o ther electronic means, as long as each participant in the hearing has an opportunity to participate in the entire proceeding while it is taking place.(3-18-22)

IDAPA 37.01.01.553 Conference at Hearing

In any proceeding the presiding officer may hold a conference with the parties before hearing or during a reces s at the hearing to discuss formulation or simplification of the issues, admissions of fact or identification of documents to avoid unnecessary proof, exchanges of documents, exhibits or prepared testimony, limitation of witnesses, establishment of order of procedure, and other matters that may expedite orderly conduct of the hearing. The presiding officer shall state the results of the conference on the record.(3-18-22)

IDAPA 37.01.01.554 Preliminary Procedure at Hearing

Before taking evidence the presiding officer will call the hearing to order , take appearances of parties, and act upon any pending motions or petitions. The presiding officer may allow opening statements as necessary or appropriate to explain a party’s presentation of evidence.(3-18-22)

IDAPA 37.01.01.555 Consolidation of Proceedings

The agency may consolidate two (2) or more proceedings for hearing u pon finding that they present issues that are related and that the rights of the parties will not be prejudiced. In consolidated hearings the presiding officer determines the order of the proceeding.(3-18-22)

IDAPA 37.01.01.556 Stipulations

Parties may stipulate among themselves to any fact at issue in a contes ted case by written statement filed with the agency or by oral statement at hearing. A stipulation binds all parties agreeing to it only according to its terms. The presiding officer may regard a stipulation as evidence or may require additional evidence supporting the facts stipulated. The presiding officer is not required to adopt the facts set forth in a stipulation of the parties, but may do so. If the presiding officer rejects a stipulation, they will do so before issuing a final order, and will provide an additional opportunity for the parties to present evidence and arguments on the subject matter of the rejected stipulation.(3-18-22)

IDAPA 37.01.01.557 Order of Procedure

The presiding officer may determine the o rder of presentation of witnesses and examination of witnesses. (3-18-22)

IDAPA 37.01.01.558 Testimony Under Oath

All testimony presented in formal hearings will be given under oath. Before testifying each witness must swear or affirm that the testimony the witness will give before the agency is the truth, the whole truth, and nothing but the truth.(3-18-22)

IDAPA 37.01.01.559 Parties and Persons with Similar Interests

If two (2) or more parties or persons have substantially like interests or positions, to expedite the proceeding and avoid duplication, the presiding officer may limit the number of them who testify, examine witnesses, or make and argue motions and objections.(3-18-22)

IDAPA 37.01.01.560 Continuance of Hearing

The presiding officer may continue proceedings for further hearing.(3-18-22)

IDAPA 37.01.01.561 Oral Argument

The presiding officer may set and hear oral argument on any matter in the contested case on reasonable notice according to the circumstances.(3-18-22)

IDAPA 37.01.01.562 Briefs -- Memoranda -- Proposed Orders of the Parties -- Statements of

POSITION -- PROPOSED ORDER OF THE PRESIDING OFFICER.

In any contested case, any party may ask to file briefs, mem oranda, proposed orders of the parties or statements of position, and the presiding officer may request briefs, proposed orders of the parties, or statements of position. The presiding officer may issue a proposed order and ask the parties for comment upon the proposed order.(3-18-22)

IDAPA 37.01.01.563 (Reserved)

IDAPA 37.01.01.600 Rules of Evidence -- Evaluation of Evidence

Evidence should be taken by the agency to assi st the parties’ development of a record, not excluded to frustrate that development. The presiding officer is not bound by the Idaho Rules of Evidence. No informality in any proceeding or in the manner of taking testimony invalidates any resulting order. The presiding officer, with or without objection, may exclude evidence that is irrelevant, unduly repetitious, inadmissible on constitutional or statutory grounds, or on the basis of any evidentiary privilege provided by statute, rule or recognized in the courts of Idaho. All other evidence may be admitted if it is of a type commonly relied upon by prudent persons in the conduct of their affairs. The agency’s experience, technical competence and specialized knowledge may be used in evaluation of evidence.

IDAPA 37.01.01.601 Documentary Evidence

Documentary evidence may be received in the form of copies or excerpts. Upon request, parties shall be given an opportunity to compare the copy with the original if available.(3-18-22)

IDAPA 37.01.01.602 Official Notice -- Agency Staff Memoranda

The presiding officer may take official notice of any facts that could be judicially noticed in the courts of Idaho, of generally recognized technical or scientific data or facts within the agency’s specialized knowledge and records of the agency. The presiding officer may ask agency staff to prepare reports or memoranda to be used in deciding a contested case, and all such reports and memoranda shall be officially noticed by the presiding officer. The presiding officer shall notify the parties of specific facts or material noticed and the source of the material noticed, including any agency staff memoranda and data. This notice should be provided either before or during the hearing, and must be provided before the issuance of any order that is based in whole or in part on facts or material officially noticed.

Parties must be given an opportunity to contest and rebut the facts or material officially noticed. When the presiding officer proposes to take official notice of agency staff memoranda or agency staff reports, responsible staff employees or agents shall be made available for cross-examination if any party timely requests their availability.(3-18-22)

IDAPA 37.01.01.603 Objections -- Offers of Proof

Grounds for objection to the admission or exclusion of evidence must be stated briefly at the time the evidence is of fered. An offer of proof for the record consists of a statement of the substance of the excluded evidence. When a party objects to the admission of evidence, the presiding officer will rule on the objection.(3-18-22)

IDAPA 37.01.01.604 Exhibits

The presiding officer may assign exhibit numbers to be used by the parties in preparation of proposed exhibits.

Exhibits prepared for hearing should ordinarily be typed or printed on eight and one-half inch (8 1/2”) by eleven inch (11”) white paper, except that maps, charts, photographs and non-documentary exhibits may be introduced on the size or kind of paper customarily used for them. A copy of each documentary exhibit must be furnished to each party present and to the presiding officer, except for unusually bulky or voluminous exhibits that have previously been made available for the parties’ inspection. Copies must be of good quality. Exhibits identified at hearing are subject to appropriate and timely objection before the close of proceedings. Exhibits to which no objection is made are automatically admitted into evidence without motion of the sponsoring party.(3-18-22)

IDAPA 37.01.01.605 (Reserved)

IDAPA 37.01.01.610 Confidentiality of Settlement Negotiations

Settlement negotiations in a contested case are confidential, un less all participants to the negotiation agree to the contrary in writing. Facts disclosed, offers made and all other aspects of negotiation (except agreements reached) in settlement negotiations in a contested case are not part of the record unless ordered by the presiding officer upon a stipulation by all parties to a contested case. If the parties to a contested case participate in mediation, I.R.E. 507 applies and the mediation privilege is recognized.(3-18-22)

IDAPA 37.01.01.611 Suggestion for or Inquiry About Settlements

Through notice or order or on the record at prehearing conference or hearing, the presiding officer may inquire of the parties in any proceeding whether settlement negotiations are in progress or are contemplated or may invite the parties to consider settlement of an entire proceeding or certain issues.(3-18-22)

IDAPA 37.01.01.612 Consideration of Settlements

The presiding officer is not bound by settlement agreements and will independently review any proposed settlement.

When a settlement is presented to the presiding officer, the presiding officer will prescribe procedures appropriate to the nature of the settlement to consider the settlement.(3-18-22)

IDAPA 37.01.01.613 (Reserved)

IDAPA 37.01.01.650 Record for Decision

01.Official Record.

The agency shall maintain an official record including the items described in section 67-5249, Idaho Code for each contested case and (unless statute provides otherwise) base its decision in a contested case on the official record for the case.(3-18-22)

IDAPA 37.01.01.651 Recording of Hearings

The agency shall make an audio or video recordi ng of all hearings at the agency’s expense. The agency may provide a transcript of the proceeding at its own expense. Any party may have a transcript prepared at its own expense. If the transcript prepared at the expense of a party is deemed by the presiding officer to be the official transcript of the hearing, the party shall furnish the agency a copy of the transcript without charge.(3-18-22)

IDAPA 37.01.01.652 (Reserved)

IDAPA 37.01.01.700 Notice of Proposed Default After Failure to Appear or Respond

If a party fails to appear at the time and place s et for hearing, prehearing conference, status conference, or informal settlement conference, or fails to respond to a written information inquiry, the agency may serve upon all parties a notice of a proposed default against the absent or non-responsive party. The notice of a proposed default order shall include a statement that the default order is proposed to be issued because of a failure of the subject party to appear at the time and place set for hearing or prehearing conference, or informal settlement conference or to respond to an information inquiry. The notice of proposed default order shall be served consistent with Rule 53.(3-18-22)

IDAPA 37.01.01.701 Seven Days to Challenge Proposed Def

AULT ORDER.

Within seven (7) days after the service of the notice of proposed default order, the party against whom it was filed may file a written petition requesting that a default order not be entered. The petition must state the grounds why the petitioning party believes that default should not be entered.(3-18-22)

IDAPA 37.01.01.702 Issuance of Default Order

The agency shall promptly issue a default order or withdraw the no tice of proposed default order after expiration of the seven (7) day time period to file a petition challenging the proposed default order. If a default order is issued, all further proceedings necessary to complete the contested case shall be conducted without participation of the party in default. All issues in the contested case shall be determined, including those affecting the defaulting party. (3-18-22)

IDAPA 37.01.01.703 (Reserved)

IDAPA 37.01.01.710 Interlocutory Orders

Interlocutory orders or intermediate orders are orders that do not decide all previous ly undecided issues presented in a proceeding, except the presiding officer may by order decide some of the issues presented in a proceeding and provide that the decision on those issues is final and subject to review by reconsideration or exceptions filed with the agency head, or judicial review in district court, but is not final on other issues. Unless an order contains or is accompanied by a document containing one (1) of the paragraphs set forth in Rules 720, 730 or 740 or a paragraph substantially similar, the order is interlocutory. The following orders are always interlocutory: orders joining, consolidating or separating issues, proceedings or parties; orders granting or denying intervention; orders scheduling prehearing conferences, discovery, hearing, oral arguments or deadlines for written submissions; and orders authorizing, compelling or refusing to compel discovery. Interlocutory orders may be reviewed by the presiding officer issuing the order pursuant to Rules 711, 760, and 770.(3-18-22)

IDAPA 37.01.01.711 Review of Interlocutory Orders

Any party or person affected by an interlocutory order may petition the presiding officer to review the interlocutory order. The presiding officer may rescind, alter or amend any interlocutory order on the presiding officer’s own motion, but will not on the presiding officer’s own motion review any interlocutory order affecting any party’s substantive rights without giving all parties notice and an opportunity for written comment.(3-18-22)

IDAPA 37.01.01.712 Contents of Orders

The contents of an order shall comply with Section 67-5248, Idaho Code.(3-18-22)

IDAPA 37.01.01.713 (Reserved)

IDAPA 37.01.01.720 Recommended Orders

01.Definition. Recommended orders are orders issued by a person other than the agency head that will become a final order of the agency only after review of the agency head (or the agency head’s designee) pursuant to Section 67-5244, Idaho Code.(3-18-22)

02.Contents. Every recommended order must contain or be accompanied by a document containing the following paragraphs or substantially similar paragraphs:(3-18-22)

a.This is a recommended order of the hearing officer. It will not become final without action of the agency head.(3-18-22)

b.Any party may file a petition for reconsideration of this recommended order with the hearing officer within fourteen (14) days of the service date of this order. The hearing officer issuing this recommended order will dispose of any petition for reconsideration within twenty-one (21) days of its receipt, or the petition will be considered denied by operation of law. See Section 67-5243(3), Idaho Code.(3-18-22)

c.Any party may in writing support or file exceptions to any part of this recommended order and file briefs in support of the party's position with the agency head or designee on any issue in the proceeding within fourteen (14) days after (a) the service date of this recommended order, (b) the service date of a denial of a petition for reconsideration from this recommended order, or (c) the failure within twenty-one (21) days to grant or deny a petition for reconsideration from this recommended order.(3-18-22)

d.If no party files exceptions to the recommended order with the agency head or designee, the agency head or designee will issue a final order within fifty-six (56) days after:(3-18-22)

i.The last day a timely petition for reconsideration could have been filed with the hearing officer;

ii.The service date of a denial of a petition for reconsideration by the hearing officer; or(3-18-22)

iii.The failure within twenty-one (21) days to grant or deny a petition for reconsideration by the hearing officer.(3-18-22)

e.Written briefs in support of or taking exceptions to the recommended order shall be filed with the agency head (or designee of the agency head). Opposing parties shall have fourteen (14) days to respond. The agency head or designee may schedule oral argument in the matter before issuing a final order. The agency head or designee will issue a final order within fifty-six (56) days of receipt of the written briefs or oral argument, whichever is later, unless waived by the parties or for good cause shown. The agency head or designee may hold additional hearings or may remand the matter for further evidentiary hearings if further factual development of the record is necessary before issuing a final order.(3-18-22)

IDAPA 37.01.01.721 (Reserved)

IDAPA 37.01.01.730 Preliminary Orders

01.Definition. Preliminary orders are o rders issued by a person other than the agency head that will become a final order of the agency unless reviewed by the agency head or designee pursuant to Section 67-5245, Idaho Code.(3-18-22)

02.Contents. Every preliminary order must contain or be accompanied by a document containing the following paragraphs or substantially similar paragraphs:(3-18-22)

a.This is a preliminary order of the agency. It can and will become final without further action of the agency unless a party petitions for reconsideration, files exceptions with the agency head, or requests a hearing pursuant to Section 42-1701A(3), Idaho Code. Filing exceptions to the agency head is not required in order to exhaust administrative remedies.(3-18-22)

b.A party may file a petition for reconsideration of this preliminary order with the agency within fourteen (14) days of the service date of this order. The agency will dispose of the petition for reconsideration within twenty-one (21) days of its receipt, or the petition will be considered denied by operation of law. See Section 67- 5243(3), Idaho Code.(3-18-22)

c.Any party may in writing file exceptions to any part of the preliminary order and file briefs in support of the party's position on any issue in the proceeding to the agency head (or designee of the agency head) within fourteen (14) days after:(3-18-22)

i.The service date of this preliminary order;(3-18-22)

ii.The service date of the denial of a petition for reconsideration from this preliminary order; or

iii.The failure within twenty-one (21) days to grant or deny a petition for reconsideration from this preliminary order.(3-18-22)

d.If any party files exceptions to this preliminary order, opposing parties shall have fourteen (14) days to respond to any party's exceptions. Written briefs in support of or taking exceptions to the preliminary order shall be filed with the agency head or designee. The agency head or designee may review the preliminary order on its own motion.(3-18-22)

e.The agency head or designee may schedule oral argument in the matter before issuing a final order.

The agency head or designee will issue a final order within fifty-six (56) days of receipt of the written briefs or oral argument, whichever is later, unless extended for good cause. The agency head or designee may hold additional hearings or may remand the matter for further evidentiary hearings if further factual development of the record is necessary before issuing a final order.(3-18-22)

f.Pursuant to Section 42-1701A(3), Idaho Code, unless the right to a hearing before the Director or the Board is otherwise provided by statute, any person aggrieved by any action of the Director, including any decision, determination, order or other action, including action upon any application for a permit, license, certificate, approval, registration, or similar form of permission required by law to be issued by the Director, who is aggrieved by the action of the Director, and who has not previously been afforded an opportunity for a hearing on the matter shall be entitled to a hearing before the Director to contest the action. The person shall file with the Director, within fifteen (15) days after receipt of written notice of the action issued by the Director, or receipt of actual notice, a written petition stating the grounds for contesting the action by the Director and requesting a hearing. A preliminary order shall not become final if a request for hearing under Section 42-1701A(3), Idaho Code is filed with the Department within the time prescribed for filing a petition for reconsideration.(3-18-22)

g.Pursuant to Sections 67-5270 and 67-5272, Idaho Code, if this preliminary order becomes final, all administrative remedies shall be deemed exhausted, and any party aggrieved by the final order or orders previously issued in this case may file a petition for judicial review of the final order and all previously issued orders in this case to district court by filing a petition in the district court of the county in which:(3-18-22)

i.A hearing was held;(3-18-22)

ii.The final agency action was taken;(3-18-22)

iii.The party seeking review of the order resides; or(3-18-22)

iv.The real property or personal property that was the subject of the agency action is located.

h.A petition for judicial review must be filed within twenty-eight (28) days of this preliminary order becoming final. See Section 67-5273, Idaho Code. The filing of a petition for judicial review does not stay the effectiveness or enforcement of the order under review.(3-18-22)

IDAPA 37.01.01.731 (Reserved)

IDAPA 37.01.01.740 Final Orders

01.Definition. Fi nal orders are preliminary orders that have become final pursuant to Section 67-5245, Idaho Code, or orders issued by the agency head pursuant to Section 67-5246, Idaho Code, or emergency orders, including cease and desist or show cause orders, issued by the agency head pursuant to Section 67-5247, Idaho Code.

02.Content. Every final order issued by the agency head must contain or be accompanied by a document containing the following, or substantially similar, paragraphs:(3-18-22)

a.This is a final order of the agency.(3-18-22)

b. Any party may file a petition for reconsideration of this final order within fourteen (14) days of the service date of this order. The agency will dispose of the petition for reconsideration within twenty-one (21) days of its receipt, or the petition will be considered denied by operation of law. See Section 67-5246(4), Idaho Code.

c.Pursuant to Section 42-1701A(3), Idaho Code, unless the right to a hearing before the Director or the Board is otherwise provided by statute, any person aggrieved by any action of the Director, including any decision, determination, order or other action, including action upon any application for a permit, license, certificate, approval, registration, or similar form of permission required by law to be issued by the Director, who is aggrieved by the action of the Director, and who has not previously been afforded an opportunity for a hearing on the matter shall be entitled to a hearing before the Director to contest the action. The person shall file with the Director, within fifteen (15) days after receipt of written notice of the action issued by the Director, or receipt of actual notice, a written petition stating the grounds for contesting the action by the Director and requesting a hearing. This order shall not be subject to judicial review in district court if a request for hearing under Section 42-1701A(3), Idaho Code is filed with the Department within the time prescribed for filing a petition for reconsideration.(3-18-22)

d.Pursuant to Sections 67-5270 and 67-5272, Idaho Code, any party aggrieved by this final order or orders previously issued in this case shall be deemed to have exhausted all administrative remedies and may file a petition for judicial review of this final order and all previously issued orders in this case to district court by filing a petition in the district court of the county in which:(3-18-22)

i.A hearing was held;(3-18-22)

ii.The final agency action was taken;(3-18-22)

iii.The party seeking review of the order resides; or(3-18-22)

iv.The real property or personal property that was the subject of the agency action is located.

e.A petition for judicial review must be filed within twenty-eight (28) days (a) of the service date of this final order, (b) of an order denying petition for reconsideration, or (c) the failure within twenty-one (21) days to grant or deny a petition for reconsideration, whichever is later. See Section 67-5273, Idaho Code, and Rule 84 of the Idaho Rules of Civil Procedure. The filing of a petition for judicial review does not stay the effectiveness or enforcement of the order under review.(3-18-22)

IDAPA 37.01.01.741 (Reserved)

IDAPA 37.01.01.750 Order Not Designated

If an order does not designate itself as recommended, preliminary or final at its release, but is designated as recommended, preliminary or final after its release, its effective date for purposes of reconsideration or appeal is the date of the order of designation. If a party believes that an order not designated as a recommended order, preliminary order or final order according to the terms of these rules should be designated as a recommended order, preliminary order or final order, the party may move to designate the order as recommended, preliminary, or final, as appropriate.

IDAPA 37.01.01.751 (Reserved)

IDAPA 37.01.01.760 Modification of Order on Presiding Officer's Own Motion

A hearing officer issuing a recommended or preliminary order may modify the recommended or preliminary order on the hearing officer’s own motion within fourteen (14) days after issuance of the recommended or preliminary order by withdrawing the recommended or preliminary order or by issuing a substitute recommended or preliminary order.

The agency head may modify or amend a final order of the agency (be it a preliminary order that became final because no party challenged it or a final order issued by the agency head itself) at any time before notice of appeal to District Court has been filed or the expiration of the time for appeal to District Court, whichever is earlier, by withdrawing the earlier final order or by substituting a new final order for it.(3-18-22)

IDAPA 37.01.01.761 (Reserved)

IDAPA 37.01.01.770 Clarification of Orders

Any party may petition to clarify any order, whether interlocutory, recommended, preliminary or final. Petitions for clarification from final orders do not suspend or toll the time to petition for reconsideration or appeal the order. A petition for clarification may be combined with a petition for reconsideration or stated in the alternative as a petition for clarification and/or reconsideration.(3-18-22)

IDAPA 37.01.01.771 (Reserved)

IDAPA 37.01.01.780 Stay of Orders

Any party may petition the agency to stay any order, whether i nterlocutory or final. Interlocutory or final orders may be stayed by the judiciary according to statute. The agency may stay any interlocutory or final order on its own motion.(3-18-22)

IDAPA 37.01.01.781 (Reserved)

IDAPA 37.01.01.790 Persons Who May File a Petition for Judicial Review

Pursuant to Section 67-5270, Idaho Code, any party aggrieved by a final order of an agency in a contested case may file a petition for judicial review with the district court. Pursuant to Section 67-5271, Idaho Code, a party is not entitled to judicial review of an agency action in district court until that person has exhausted all administrative remedies available with the agency, but a preliminary, procedural, or intermediate agency action or ruling is immediately reviewable in district court if review of the final agency action would not provide an adequate remedy.

IDAPA 37.01.01.791 (Reserved)

37.03.08 Water Appropriation Rules

IDAPA 37.03.08.000 Legal Authority

The Director of the Idaho Department of Water Resources adopts these rules under the au thority of Section 42- 1805(8), Idaho Code.(7-1-24)

IDAPA 37.03.08.001 Title and Scope

01.Title.

These rules are titled IDAPA 37.03.08, “Water Appropriation Rules.”(7-1-24)

02.Scope.These rules set the procedures for obtaining a permit to divert and use unappropriated public waters or a permit for reallocation of trust water within the Swan Falls Trust Water Area. These rules govern the filing and processing of applications for permits to appropriate water pending on or filed after the adoption of these rules.

IDAPA 37.03.08.002 (Reserved)

IDAPA 37.03.08.010 Definitions

The terms “consumptive use,” “digital boundary,” “local publi c interest,” “municipality,” “municipal provider,”

“municipal purposes,” “planning horizon,” “reasonably anticipated future needs,” and “service area” have the meaning given for those terms in Section 42-202B, Idaho Code. The terms “ground water” and “low temperature geothermal resource” have the meaning given for those terms in Section 42-230, Idaho Code. The term “critical ground water area” has the meaning given for that term in Section 42-233a, Idaho Code.(7-1-24)

01.Acre-Foot (af). A volume of water sufficient to cover one (1) acre of land one (1) foot deep and is equal to three hundred twenty-five thousand, eight hundred fifty (325,850) gallons.(7-1-24)

02.Applicant. The person, corporation, association, firm, governmental entity or agency, or other entity, who applies to divert and beneficially use public waters.(7-1-24)

03.Application. An application for permit to appropriate water filed with the Department.(7-1-24)

04.Board. The Idaho Water Resource Board.(7-1-24)

05.Beneficial Use. One (1) or more of the recognized beneficial uses of water including, but not limited to, domestic, municipal, irrigation, hydropower generation, industrial, commercial, recreation, stockwatering, and fish propagation uses for which permits to appropriate water can be issued as well as other uses which provide a benefit to the user of the water as determined by the Director. Industrial use as used for purposes of these rules includes, but is not limited to, manufacturing, mining, and processing uses of water.(7-1-24)

06.Cubic Foot Per Second (cfs). A rate of flow approximately equal to four hundred forty-eight and eight-tenths (448.8) gallons per minute and also equals fifty (50) Idaho miner’s inches.(7-1-24)

07.Department. The Idaho Department of Water Resources.(7-1-24)

08.Director. The Director of the Idaho Department of Water Resources. Per Section 42-1701(3), Idaho Code, the Director may delegate authority to perform duties imposed upon the Director by law, including duties described herein, to a Department employee.(7-1-24)

09.Generally Described Place of Use. A place of use authorized by an existing water right or permit pursuant to Sections 42-202, 42-219, 42-222, or 42-1411, Idaho Code, consisting of a general area or boundary within which water diverted under the water right or permit is used.(7-1-24)

10.Idaho State Water Plan. The current comprehensive state water plan formally adopted by the Idaho Water Resource Board pursuant to Sections 42-1734A and 42-1734B, Idaho Code.(7-1-24)

11.Murphy Gage. The United States Geological Survey stream gage station (site identification number 13172500) located on the right bank of the Snake River at river mile 456.8, approximately eight point five (8.5) miles east-northeast of Murphy, Idaho and zero point nine (0.9) miles downstream from the Swan Falls power plant at latitude 43° 15' 17.33" N, longitude 116° 23' 26.30" W, North American Datum of 1983, in the NW ¼ of the NW ¼ of Section 18, T.2S., R.1E., Boise Meridian, Hydrologic Unit 17050103.(7-1-24)

12.Permit. The water right document issued by the Director authorizing the diversion and use of unappropriated public waters or reallocated trust water.(7-1-24)

13.Priority Date. The date of appropriation established when an application is filed in acceptable form, including the applicable filing fee, unless a later date is set in accordance with applicable law.(7-1-24)

14.Project Works. A general term that includes diversion works, conveyance infrastructure, and any devices used to apply water to the intended use.(7-1-24)

15.Public Interest. The interests that the people of the state of Idaho have in the effects of a proposed reallocation of trust water pursuant to Section 42-203C(2), Idaho Code. For the definition of “local public interest,” see Section 42-202B, Idaho Code.(7-1-24)

16.Reallocation of Trust Water. Appropriation of trust water for a use other than hydropower generation to the extent the water rights held in trust are subordinated to permits issued for such other uses of water pursuant to Section 42-203C, Idaho Code.(7-1-24)

17.Subordinated. Subject to diminishment or depletion without compensation by water rights initiated later in time.(7-1-24)

18.Swan Falls Trust Water Area. The reach of the Snake River extending downstream from Milner Dam (located in Sections 28 and 29, Township 10 South, Range 21 East, Boise Meridian) to Swan Falls Dam (located in Section 18, Township 2 South, Range 1 East, Boise Meridian) and all surface and ground water sources tributary to that reach of the Snake River. The area within which ground water is presently designated tributary to the reach of the Snake River extending downstream from Milner Dam to Swan Falls Dam is depicted in APPENDIX A. The Swan Falls Trust Water Area excludes any reach of the Snake River upstream of Milner Dam, any surface or ground water tributary to the Snake River upstream of Milner Dam, the Snake River downstream of Swan Falls Dam, and any surface or ground water tributary to the Snake River downstream of Swan Falls Dam.(7-1-24)

19.Trust Water. Water in excess of the state established minimum stream flow at the Murphy Gage that was originally appropriated for hydropower generation purposes pursuant to the water rights now held in trust by the state of Idaho and that is made available for reallocation to uses other than hydropower generation to the extent the water rights held in trust are subordinated to permits issued for such other uses pursuant to Section 42-203C, Idaho Code.(7-1-24)

20.Unappropriated Water. The public waters of the state of Idaho in streams, rivers, lakes, springs, other natural surface water bodies, ground water, or low temperature geothermal resources exceeding the amount necessary to satisfy existing water rights.(7-1-24)

21.Water Right Held in Trust. A water right used for hydropower generation purposes that is in excess of a minimum stream flow established by state action and is held in trust by the state of Idaho pursuant to Subsections (2) or (3) of Section 42-203B, Idaho Code. The water rights held in trust for the Swan Falls Trust Water Area are numbered 02-02001A, 02-02001B, 02-02032B, 02-02036, 02-02056, 02-02057, 02-02059, 02-02060, 02- 02064, 02-02065, 02-04000B, 02-04001B, 02-10135, 36-02013, 36-02018, 36-02026, 37-02128, 37-02471, 37- 02472, 37-20709, and 37-20710.(7-1-24)

IDAPA 37.03.08.011 (Reserved)

IDAPA 37.03.08.025 General Description of the Procedure for Application Review

01.Applications to Appropriate Una ppropriated Water. The Department will process an application to appropriate unappropriated public waters under Section 040, and will evaluate the application under Subsection 045.01, using the criteria of Section 42-203A(5), Idaho Code, and, for a low temperature geothermal resource, the criteria of Section 42-233, Idaho Code.(7-1-24)

02.Applications to Appropriate Water from the Swan Falls Trust Water Area. The Department will process an application to appropriate water from the Swan Falls Trust Water Area under Section 040 and will evaluate the application as follows:(7-1-24)

a.First, the Director will evaluate the application under Subsection 045.01 using the criteria of Section 42-203A(5), Idaho Code.(7-1-24)

i.If the application is seeking to appropriate unappropriated water within the Swan Falls Trust Water Area rather than a reallocation of trust water and it satisfies all criteria of Section 42-203A(5), Idaho Code, the Director may approve the application for unappropriated water. An application for unappropriated water within the Swan Falls Trust Water Area must demonstrate the public waters sought for appropriation exceed the amount necessary to satisfy all existing water rights, including the water rights held in trust.(7-1-24)

ii.If the application does not satisfy the criteria of Section 42-203A(5)(b) through (g), Idaho Code, or is found to reduce the water available to an existing water right other than a water right held in trust, the Director may deny the application.(7-1-24)

iii.If the application satisfies all criteria of Section 42-203A(5), Idaho Code, except it is found to reduce the amount of water available to a water right held in trust it is seeking a reallocation of trust water and the Director will review the application under Paragraph 025.02.b.(7-1-24)

b.Second, if the application is seeking a reallocation of trust water the Director will evaluate the application under Subsection 045.02 to determine whether it will cause a significant reduction to a water right held in trust pursuant to Section 42-203C(1), Idaho Code.(7-1-24)

i.If the application will not cause a significant reduction to a water right held in trust pursuant to Section 42-203C(1), Idaho Code, the Director may approve the application without additional evaluation.(7-1-24)

ii.If the application will cause a significant reduction to a water right held in trust pursuant to Section 42-203C(1), Idaho Code, the Director will review the application under Paragraph 025.02.c.(7-1-24)

c.Third, if the application is seeking a reallocation of trust water and will cause a significant reduction to a water right held in trust the Director will evaluate the application under Subsection 045.03 to determine if the proposed reduction is in the public interest pursuant to Section 42-203C(2), Idaho Code.(7-1-24)

i.If the application is in the public interest, the Director may approve the application.(7-1-24)

ii.If the application is not in the public interest, the Director may deny the application.(7-1-24)

IDAPA 37.03.08.026 (Reserved)

IDAPA 37.03.08.035 Application Requirements

01.General Provisions.

a.An application must be filed:(7-1-24)

i.On the Department form titled “Application for Permit to Appropriate the Public Waters of the State of Idaho,” with any application attachments;(7-1-24)

ii.In accordance with IDAPA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources,” Section 053, either on paper, digitally in PDF format, or through the Department’s online filing process;

iii.With the applicable filing fee prescribed in Section 42-221A, Idaho Code; and(7-1-24)

iv.With all necessary information under Subsection 035.03.(7-1-24)

b.The filing fee in Section 42-221A, Idaho Code, is based on the total rate (in cfs) or the total storage volume (in af) to be appropriated. Whenever the application diversion rate and storage volume elements lead to a different filing fee, the higher amount is the applicable filing fee.(7-1-24)

c.The Department will determine whether an application is acceptable for filing under Subsection 035.03 or if it requires clarification or correction.(7-1-24)

d.When an application is not acceptable for filing under Subsection 035.03, the Department will not accept the application and will proceed as directed in Section 42-204, Idaho Code. Filing fees for an unacceptable application will be refunded to the applicant if the application is not timely clarified or corrected. An unacceptable application does not establish a priority date.(7-1-24)

e.When an application is accepted for filing but requires clarification or correction of the information required by Subsection 035.03, the Department will proceed as directed in Section 42-204, Idaho Code.(7-1-24)

02.Effect of an Application.(7-1-24)

a.The priority date of an application is the time and date the Department receives the application in a form acceptable for filing with the statutory filing fee. The priority date of the application remains fixed unless changed by an action of the Director in accordance with applicable law.(7-1-24)

b.An application is not a water right and does not authorize diversion or use of water until approved by the Director in accordance with the laws in effect at the time the application is approved.(7-1-24)

c.An applicant’s interest in an application is personal property. An applicant may convey (assign) its interest in an application to another party or entity. The person or entity to whom the application is conveyed must notify the Department of the assignment, in writing, within thirty (30) days after the assignment and notify other parties in the contested case pursuant to IDAPA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources,” Section 202.(7-1-24)

03.Requirements for Applications Acceptable for Filing. An application is acceptable for filing if it is filed in a manner stated in Paragraph 035.01.a. and includes the following information:.(7-1-24)

a.Applicant’s name and mailing address.(7-1-24)

i.If the applicant is a corporation, also include the names of all directors.(7-1-24)

ii.If the applicant is a partnership, limited liability company, or joint venture, also include the names of all partners or members and the name of the managing partner or member, if any.(7-1-24)

b.Source of water to be appropriated.(7-1-24)

i.Identify only one (1) water source unless the application is for a single interconnected system that will divert water from more than one (1) source.(7-1-24)

ii.For a surface water source, include the official geographic name listed on the United States Geological Survey (USGS) Quadrangle map. If the surface water source is not named on the USGS Quadrangle map, describe it as an unnamed water body, such as “unnamed stream.” For surface water sources, also identify the first named stream or river to which the source is tributary. If the water source sinks into the ground prior to reaching a stream named on the USGS Quadrangle map, describe the “tributary to” stream as “sinks.” If the water source flows into a stream named on the USGS Quadrangle map for part of the year and sinks into the ground for the other part of the year, identify the “tributary to” stream as the named stream on the USGS Quadrangle map.(7-1-24)

iii.For a water source under the ground surface, identify the source as “ground water.”(7-1-24)

iv.For a low temperature geothermal resource, state how the source will be used primarily for its heat value and secondarily for its value as water or how the use qualifies for an exemption pursuant to Section 42-233(1), Idaho Code.(7-1-24)

v.For an application within the Swan Falls Trust Water Area, state if the application is seeking unappropriated water or a reallocation of trust water.(7-1-24)

c.Legal description of the point of diversion and place of use.(7-1-24)

i.Describe the location of the point of diversion and the place of use to the nearest forty (40) acre subdivision or United States Government Lot of the Public Land Survey System.(7-1-24)

ii.Subdivision names, lot and block numbers, and any name in local common usage for the point of diversion or place of use may be included.(7-1-24)

iii.If irrigation use is proposed, state the number of acres to be irrigated to the nearest whole acre in each forty (40) acre subdivision of the place of use. For an application proposing irrigation of less than ten (10) acres, acreage shall be shown to the nearest one-tenth (0.1) acre. The number of acres per forty (40) acre subdivision is not required when the place of use is a generally described place of use for an existing water right or permit. If the proposed place of use is a generally described place of use with an established digital boundary authorized by a water right or permit, state the name of the generally described place of use, list the water right number serving the generally described place of use, attach a map depicting the generally described place of use boundary, and state the total number of acres to be irrigated.(7-1-24)

iv.If the application proposes water use for municipal purposes or fire protection by a municipal provider within a service area, the service area need not be described by legal description. Describe the service area in terms sufficient to identify the general location where water will be used and attach a map depicting the service area.

d.Quantity of water to be diverted.(7-1-24)

i.Include the rate of flow in cfs or the volume of water to be stored in af per year for each beneficial use proposed, using values with a maximum of three (3) significant figures with no more precision than hundredths for rate and tenths for volume.(7-1-24)

ii.For an application to store water, the maximum af per year may not exceed the storage facility capacity unless the application includes a plan of operation for filling the facility more than once per year. The refill plan may include refills for seepage, evaporation, use from storage, and other purposes the applicant intends to replace in the storage facility throughout the year.(7-1-24)

iii.For an application to store water in an off-stream storage facility. include a maximum rate of diversion to storage and the total storage volume.(7-1-24)

e.Beneficial use of water. (7-1-24)

i. Describe the proposed use of water. When a narrative or other application material describes details of the proposed use, the description used in the purpose of use field may be in general terms such as irrigation, industrial, or municipal.(7-1-24)

ii.For a municipal purposes application, attach a complete “Municipal Water Right Application Checklist.” The “Municipal Water Right Application Checklist” is a form available on the Department’s website or from the Department upon request.(7-1-24)

iii.For a municipal purposes application that proposes to appropriate water for reasonably anticipated future needs, include justification for the planning horizon, the anticipated service area at the end of the planning horizon, the anticipated population within the anticipated service area at the end of the planning horizon, and the anticipated water demand within the anticipated service area at the end of the planning horizon. Also include a gap analysis showing the extent to which an existing water right will not be sufficient to meet the anticipated water demand at the end of the planning horizon.(7-1-24)

iv.For a municipal purposes application that does not propose to appropriate water for reasonably anticipated future needs, include a water requirement narrative with a map of the service area, current water needs, water needs after five (5) years, and any existing plan for conveying ownership of the water right to a subdivision homeowner’s association or entity other than individual land parcel owners.(7-1-24)

v.For an application proposing multi-home domestic use where the applicant intends to convey a portion of the place of use land to an individual parcel or lot owner, describe the applicant’s plan, if any, to keep the permit in single ownership by conveying the permit to a homeowner’s association, water system operator, or other entity prior to conveying an individual parcel or lot with an appurtenant portion of the permit.(7-1-24)

f.Period of use.(7-1-24)

i.A period of use must be listed for each beneficial use proposed in the application.(7-1-24)

ii.For irrigation use, the period must coincide with the annual season of use established by the Department. The Department established irrigation season of use is available on the Department’s website or from the Department upon request. If a longer season of use is proposed, the application must justify that the longer season of use is necessary.(7-1-24)

g.Description of the project works.(7-1-24)

h.Any other water right used at the place of use for the same purpose. Include the water right number or name of the delivery organization, such as a municipal provider, canal company, irrigation district, or other delivery entity that supplies water for the proposed use at the proposed place of use. Also state if the applicant is entitled to distribution of water from a water delivery entity, but the entity’s distribution system is not capable of delivering water to the proposed place of use.(7-1-24)

i.Ownership or other legal access to the point of diversion, place of use, and conveyance system. If a person or entity other than the applicant owns the land at the point of diversion, place of use, or where the conveyance system will be established, include a description of the arrangement enabling the applicant to access the land for the purpose proposed in the application.(7-1-24)

j.Period of time required to complete project works and apply water to beneficial use. While a permit holder may request a permit development period extension pursuant to Section 42-204, Idaho Code, the period of time stated on an application may not exceed five (5) years unless the application proposes municipal purposes for reasonably anticipated future needs.(7-1-24)

k.Map or plat of sufficient scale to show the proposed project.(7-1-24)

l.Applicant’s signature or evidence to show the signatory has authority to sign on behalf of the applicant.(7-1-24)

i.For an application in more than one (1) name, each applicant must sign the application unless “or” connects the applicant names.(7-1-24)

ii.For an application by a corporation, company, municipality, governmental entity or organization, or other organization, include the signature and title of an officer of the corporation or company or an elected official of the municipality or an individual authorized by the governmental entity or agency or other organization to sign the application. Alternatively, the application may be signed by an authorized agent of the applicant in accordance with Subparagraph 035.03.l.iii.(7-1-24)

iii.If the signatory is an authorized agent of the applicant, include a power of attorney or other documentation demonstrating the signatory has authority to sign on behalf of the applicant. If the signatory is a licensed attorney, power of attorney or other documentation is not required.(7-1-24)

04.Amended Applications.(7-1-24)

a.An applicant or the applicant’s agent must amend an application if the applicant intends to change the purpose of use, period of use, amount of diversion, point of diversion, place of use, or make other substantial changes. The Department may clarify a source or tributary name or the irrigation period of use that do not meet Paragraphs 035.03.b. and 035.03.f. requirements by documenting the official record without requiring the applicant to amend the application.(7-1-24)

b.An applicant or the applicant’s agent may amend an application to clarify the name of the source of water but may not amend an application to change the source of water.(7-1-24)

c.An applicant or the applicant’s agent may not amend a municipal purposes application not originally seeking water for reasonably anticipated future needs to seek water for reasonably anticipated future needs.

d.An amendment that increases the rate of diversion, increases the volume of water diverted per year, lengthens the period of use, or adds an additional beneficial use will result in the Department changing the priority date to the date the Department received the amended application.(7-1-24)

e.An applicant or the applicant’s agent may amend an application by:(7-1-24)

i.Striking each item to be changed on the original application form and initialing and dating each change;(7-1-24)

ii.Filing a new application form designated as an amended application; or(7-1-24)

iii.Changing an application electronically via the Department’s online filing process.(7-1-24)

f.If an amendment increases the total diversion rate or total storage volume requested, the amended application must include any additional filing fee required by Section 42-221A, Idaho Code.(7-1-24)

g.If the applicant’s name or mailing address changes, the applicant or the applicant’s agent must notify the Department of the change in writing.(7-1-24)

IDAPA 37.03.08.036 Delayed Processing

An applicant may request in writing that the Department delay commencement or interrupt processing of the applicant’s application for a period not to exceed one (1) year. The Department may approve the request unless the delay will injure existing water rights, the applicant seeks the delay for speculative purposes, or the delay does not serve the interest of the people of Idaho. The Department may approve a request for delay for a shorter period or upon conditions. Upon written request, the Department may renew the authorized delay successive times as long as the delay meets the requirements stated above.(7-1-24)

IDAPA 37.03.08.037 (Reserved)

IDAPA 37.03.08.040 Processing Applications for Permit

01.Public Notice Requirement.

a.Publication of an application will be pursuant to Section 42-203A, Idaho Code.(7-1-24)

b.For an application that proposes diversion in excess of ten (10) cfs or storage of one thousand (1,000) af, the Department will accomplish statewide circulation pursuant to Section 42-203A(2), Idaho Code, by publication of a legal notice at least once each week for two (2) successive weeks in;(7-1-24)

i.A newspaper, as defined in Section 60-106, Idaho Code, of general circulation in the county in which the point of diversion is located; and(7-1-24)

ii.At least one (1) daily newspaper, as defined in Section 60-107, Idaho Code, that the Director determines is of general circulation within each of the Department’s four (4) administrative regions.(7-1-24)

c.The Department shall make an application accepted for filing available on the Department’s website pursuant to Section 42-203A(3), Idaho Code.(7-1-24)

d.Publication in the newspaper pursuant to Section 42-203A(2), Idaho Code, constitutes the official notice of the application.(7-1-24)

e.An application amended under Paragraph 035.04.a. after publication requires republication. The applicant must file the amended application with the republication fee required by Section 42-221F, Idaho Code.

f.If a moratorium order is amended or repealed allowing the Director to continue processing an application previously held without final action, the Department will republish an application that was published prior to being held for the moratorium. Before republication, the applicant must pay the republication fee required by Section 42-221F, Idaho Code.(7-1-24)

g.Failure to pay a required republication fee within thirty (30) days after the applicant is notified to do so is cause for the Director to void the application, unless a processing delay is approved under Section 036.

h.The Director may deny approval of an application filed for diversion of ground water in a designated critical ground water area without publication of the application if the Director believes that there is insufficient water available for the proposed water use. An application that includes a mitigation plan proposing to offset injury to existing water rights will be published prior to the Director’s evaluation of the application under Subsection 045.01.(7-1-24)

02.Protests, Intervention, Hearings, and Appeals.(7-1-24)

a.Section 42-203A, Idaho Code, governs protests against application approval. The Department will treat a protest as a pleading filed pursuant to IDAPA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources.”(7-1-24)

b.A protest may be filed on a form supplied by the Department or in any other format that includes the same information as the Department’s form.(7-1-24)

c.If a single protest names more than one (1) individual protestant and does not identify a representative, the Department will consider the first person listed to be the spokesperson and primary contact for service of documents for the group of individuals named as protestants.(7-1-24)

d. The Department will not consider a general protest (blanket protest) against an application for a particular class of use or from a particular source of water a valid protest. A protest must identify the specific application being protested.(7-1-24)

e.The Department will not accept a protest or petition to intervene unless the protest or petition to intervene is filed with the statutory filing fee required by Section 42-221L, Idaho Code, except any subdivision of the state, as defined in Section 67-2301, Idaho Code, is exempt from paying filing fees.(7-1-24)

f.Petitions to intervene in a protested application matter must comply with IDAPA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources.“(7-1-24) g.

Hearings will be scheduled and held pursuant to ID APA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources.”(7-1-24)

h.A decision of the Department may be appealed pursuant to IDAPA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources.”(7-1-24)

03.Burden of Proof.(7-1-24)

a.Burden of proof has two (2) parts: first, the burden of producing evidence to present a prima facie case, and second, the ultimate burden of persuasion.(7-1-24)

b.For evaluation of Section 42-203A(5), Idaho Code, criteria for a protested application:(7-1-24)

i.The applicant has the initial burden of producing evidence for the evaluation of Section 42- 203A(5)(a) through (d) and (f) through (g), Idaho Code, criteria and of producing evidence of which the applicant is knowledgeable for the evaluation of Section 42-203A(5)(e), Idaho Code, criteria.(7-1-24)

ii.The protestant has the initial burden of producing evidence of which the protestant can reasonably be expected to be more cognizant than the applicant for Section 42-203A(5)(e), Idaho Code criteria.(7-1-24)

iii.The applicant has the ultimate burden of persuasion of Section 42-203A(5)(a) through (g), Idaho Code criteria.(7-1-24)

c.For evaluation of Section 42-203C, Idaho Code, criteria for a protested application:(7-1-24)

i.The protestant has the initial burden of producing evidence under Subsection 045.02, that the application will cause a significant reduction, except that the applicant has the initial burden of producing evidence of the proposed project design, construction, operation, and directly associated operations of which the applicant is knowledgeable or can reasonably be expected to be knowledgeable.(7-1-24)

ii.The protestant has the ultimate burden of persuasion on whether the application causes a significant reduction under Subsection 045.02 and whether it meets the public interest criteria in Section 42-203C(2), Idaho Code, under Subsection 045.03.(7-1-24)

d.For an unprotested application or an application for which all protests have been resolved, the Director will evaluate the application, any information submitted pursuant to Subsections 040.04, 045.01, 045.02, and 045.03, and information in the Department’s files and records to determine compliance with Sections 42-203A(5) and 42-203C, Idaho Code. For an unprotested application or an application for which all protests have been resolved, the applicant has the burden of producing evidence and the ultimate burden of persuasion on whether the application satisfies the applicable statutory criteria.(7-1-24)

04.Additional Information Requirements.(7-1-24)

a.The Department may require the applicant to file any of the additional information under Paragraph 040.04.c. or 040.04.d. if the official record for the application does not contain sufficient information to evaluate the applicable criteria in Section 045 and other statutory criteria. The Department will notify the applicant of the additional information required.(7-1-24)

b.Unless the Department extends the time for filing, the additional information must be filed within thirty (30) days after the Department notifies the applicant of the additional information requirements.(7-1-24)

i.The Department may grant an extension of time to file the required additional information if the applicant files a written request showing good cause. (7-1-24)

ii.If the required additional information is not filed within the time allowed, including any extensions granted, the Department may void the application. (7-1-24)

c.For purposes of evaluating the application under Subsection 045.01, the Department may request additional information, including, but not limited to, the following:(7-1-24)

i.Project design, construction, operation techniques, or mitigation measures that the applicant will employ to eliminate or reduce the impact on other water rights.(7-1-24) ii.

The proposed project water requirements including, but not limited to, the required diversion rate during the peak use period and the average use period, the volume to be diverted per year, the period of year that water is required, and the volume of water that will be consumptively used per year.(7-1-24)

iii.The quantity of water available from the source applied for, including, but not limited to, the flow rates for surface water sources available during periods of peak and average project water demand, the properties of the aquifers from which water is to be taken from for ground water sources, and other sources of supply that may be used to supplement the water source proposed in the application.(7-1-24)

iv.Evidence documenting an interest in the lands necessary for all project works and the place of use including, but not limited to, copies of deeds, leases, easements, or well sharing agreements. In the instance the land necessary to construct and operate the proposed project is privately-owned land not in the applicant’s ownership, the applicant must submit evidence documenting that the applicant has an interest in the land, has authority to exercise eminent domain to obtain the interest, or has another arrangement with the landowner establishing an interest. In the instance of a project diverting water from or conveying water across federally owned land, the applicant must submit evidence documenting that the applicant filed the appropriate form to request or initiate access and that access is authorized or a decision is pending.(7-1-24)

v.For hydropower use, evidence demonstrating compliance with Sections 42-205 and 42-206, Idaho Code.(7-1-24)

vi.Requests for other needed permits, licenses, and approvals. The applicant must keep the Department apprised of the status of the requests and any subsequent approvals or denials.(7-1-24)

vii.Evidence to show that it is reasonably probable that financing will be available to appropriate the water and put it to the beneficial use proposed.(7-1-24) viii.If the applicant is a governmental entity proposing to use taxing, bonding, or contracting authority to raise the funds needed to commence and pursue project construction, a proposed project construction schedule and a plan describing how the applicant intends to utilize its taxing, bonding, or contracting authority in connection with the proposed project construction schedule.(7-1-24)

ix.Plans, specifications, and estimated construction costs for the project works definite enough to allow for determination of project impacts and implications.(7-1-24)

x.Letters requesting comment and any responding comment on the proposed project construction and operation from the governing body of the city, county, or tribal reservation within which the point of diversion and place of use are located: any irrigation district, canal company, or other water delivery entity within which the proposed project is located; and from other people, entities, or agencies with interests in the local area that may be affected by the proposed water use as determined by the Department.(7-1-24)

xi.Design, construction, operation techniques, or mechanical equipment that will be employed to achieve efficiency in conveyance or use of water and to minimize waste.(7-1-24)

xii.Evidence demonstrating compliance with the Idaho State Water Plan.(7-1-24)

d.For purposes of evaluating the application under Subsections 045.02 and 045.03, the Department may request additional information including, but not limited to, the following:(7-1-24)

i.If the project proposes irrigation use, the crop rotation, including acres under each crop type, for newly developed land. Also the kinship, if any, of the operator of the l and to be irrigated by the project to the applicant; the location and acreage of other irrigated land owned, leased, or rented by the applicant; a soil survey prepared in accordance with the Natural Resources Conservation Service irrigable land classification system; a schedule for bringing into production the project land; the name, address, and number of shares held by each shareholder if the applicant is a corporation; and evidence of tax-exempt status if the applicant is a corporation so claiming. (7-1-24)

ii.The number and kinds of jobs created or eliminated as a direct result of project development including both the construction and operating phases of the project. If jobs are seasonal, the estimated number of months per year of employment.(7-1-24)

iii.For an application that proposes appropriating more than twenty-five (25) cfs, or more than ten thousand (10,000) af of storage, or generating more than five (5) megawatts of power, the changes to community services required during the construction and operation phases of the project including, but not limited to, changes to schools, roads, housing, public utilities, and public health and safety facilities, if any.(7-1-24)

iv.The source of energy for diverting and using water for the project, the estimated instantaneous demand and total amount of energy that will be used, the efficiency of use, and energy conservation methods.

v.The location, amount, and quality of return flow water, and any water conservation features of the project.(7-1-24)

vi.The availability, foreseeability, and cost of alternative energy sources to ameliorate the economic impact the proposed use will have on electric utility rates in the state of Idaho.(7-1-24)

e.Unless the Director determines otherwise, information under Paragraph 040.04.c. or 040.04.d. is not required for:(7-1-24)

i.An application that seeks to appropriate five (5) cfs or less, or store five hundred (500) af or less of unappropriated water.(7-1-24)

ii.An application that proposes to use water from a source in the Swan Falls Trust Water Area to irrigate two hundred (200) acres or less or any other use that the Director determines will reduce the flow of the Snake River measured at the Murphy Gage by two (2) af per day or less.(7-1-24)

f.Unless the Director determines otherwise, information under Paragraph 040.04.d. is required for an application that proposes to use water from a source in the Swan Falls Trust Water Area to irrigate more than two hundred (200) acres or any other use that the Director determines will reduce the flow of the Snake River measured at the Murphy Gage by more than two (2) af per day.(7-1-24)

IDAPA 37.03.08.041 (Reserved)

IDAPA 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.(7-1-24)

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:(7-1-24)

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;(7-1-24)

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(7-1-24)

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.(7-1-24)

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.(7-1-24)

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.(7-1-24)

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:(7-1-24)

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(7-1-24)

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(7-1-24)

iii.The applicant is not in the process of obtaining other permits, licenses, and approvals needed to construct and operate the project; or(7-1-24)

iv.There are obvious impediments that prevent the successful completion of the project.(7-1-24)

d.Financial resources criteria. The Director will find an applicant does not have sufficient financial resources:(7-1-24)

i. Upon a showing that it is not reasonably probable that funding is or will be available for project construction; or(7-1-24)

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.(7-1-24)

e.Local public interest criteria. The Director will consider the following in determining whether the project will conflict with the local public interest:(7-1-24)

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(7-1-24)

ii.Whether the proposed water use is consistent with Idaho’s policy of securing the maximum use and benefit from the public water resources.(7-1-24)

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 reg ulatory 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.(7-1-24)

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.(7-1-24)

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.(7-1-24)

f.Conservation of water resources within the state of Idaho criteria. The application will be determined contrary to the conservation of water resources if:(7-1-24)

i.A diversion rate greater than two hundredths (0.02) cfs per acre is proposed, but is not necessary for irrigation use;(7-1-24)

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; (7-1-24)

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(7-1-24)

iv.The proposed irrigation use is not consistent with the requirements of Section 42-204A, Idaho Code.(7-1-24)

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.(7-1-24)

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. (7-1-24)

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.(7-1-24)

a.Individual test. The Director will presume:(7-1-24)

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(7-1-24)

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.(7-1-24)

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:(7-1-24)

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;(7-1-24)

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(7-1-24)

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.(7-1-24)

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:(7-1-24)

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.(7-1-24)

ii.The relative importance of the affected hydropower facility to other sources of electrical power generation available to the holder of the facility.(7-1-24)

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.(7-1-24)

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.(7-1-24)

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:(7-1-24)

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.(7-1-24)

ii.Indirect benefits including net revenues to the processing, transportation, supply, service, and government sectors of the economy.(7-1-24)

iii.Indirect project costs, including verifiable costs to government in net lost revenue and increased reg ulation 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:(7-1-24)

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.(7-1-24)

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:(7-1-24)

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);(7-1-24)

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(7-1-24)

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.(7-1-24)

d.Whether the proposed project will promote full economic and multiple use development of the water resources of the state of Idaho:(7-1-24)

i.Promoting and conforming with the adopted Idaho State Water Plan;(7-1-24)

ii.Providing for coordination of proposed and existing uses of water to maximize the beneficial use of available water supplies;(7-1-24)

iii.Utilizing technology economically available to enhance water and energy use efficiency; (7-1-24)

iv.Providing multiple use of the water, including multipurpose storage;(7-1-24)

v.Allowing opportunity for reuse of return flows;(7-1-24)

vi.Preserving or enhancing water quality, fish, wildlife, recreation, and aesthetic values; or(7-1-24)

vii.Providing supplemental water supplies for existing uses with inadequate supplies.(7-1-24)

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:(7-1-24)

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;(7-1-24)

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(7-1-24)

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.(7-1-24)

f.The Director will presume an application is in the public interest if it proposes:(7-1-24)

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(7-1-24)

ii.A state of Idaho-sponsored ground water recharge project that is consistent with the Idaho State Wa t e r P l a n ; o r(7-1-24)

iii.Domestic, commercial, municipal, or industrial use that does not have a maximum consumptive use of more than two (2) af per day.(7-1-24)

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.(7-1-24)

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.(7-1-24)

IDAPA 37.03.08.046 (Reserved)

IDAPA 37.03.08.050 Conditions of Approval

01.Issuance of Permits with Conditions.

The Director may issue a permit with conditions to ensure compliance with:(7-1-24)

a. Chapter 2, Title 42, Idaho Code, and other applicable laws and statutes;(7-1-24)

b.Efficient administration of water rights by priority date;(7-1-24)

c.The Idaho State Water Plan as required by Section 42-1734B(4), Idaho Code;(7-1-24)

d.The criteria of Section 42-203A, Idaho Code:(7-1-24)

e.Requirements of Section 42-203B, Idaho Code, including conditions to subordinate a permit for hydropower generation to all rights to the use of water, other than hydropower, and limit a permit for hydropower generation to a term in connection with the power project;(7-1-24)

f. Requirements of Section 42-203C, Idaho Code, including conditions to promote efficient use and conservation of water;(7-1-24)

g.The intent of agreements entered into by and between the state of Idaho and holders of water rights for power purposes and the state of Idaho’s obligation to continually review the reallocation of trust water consistent with Section 42-203, Idaho Code; or(7-1-24)

h.The requirement to obtain authorization necessary to access the point of diversion, place of use, or to convey water across federal land prior to diversion and use of water under the permit.(7-1-24)

02.Voiding Approval of Permit. Permits may be conditioned to authorize the Director to void the permit if the Director determines that the applicant submitted false or misleading information on the application or supporting documents.(7-1-24)

IDAPA 37.03.08.051 (Reserved)

IDAPA 37.03.08.055 Moratorium

01.Applications or Permits.

a.The Director may cease action on an application or stay further development of a permit for which the permit holder has not submitted proof of beneficial use in a designated geographical area upon finding a need to:

i.Protect existing water rights;(7-1-24)

ii.Ensure compliance with Chapter 2, Title 42, Idaho Code; or(7-1-24)

iii.Prevent reduction of flows below a minimum stream flow held by the Board pursuant to applicable

law.(7-1-24)

b.Notice of the Director’s action to cease further action on an application or stay further development of a permit will be by:(7-1-24)

i.Order served by certified mail upon the then affected applicant or permit holder; and(7-1-24)

ii.Publication for three (3) consecutive weeks in a newspaper of general circulation in the area affected.(7-1-24)

c.The order of the Director’s action to stay further development of a permit will require a permit holder to file, within sixty (60) days of order issuance, either;(7-1-24)

i.Proof of beneficial use for the extent of diversion and beneficial use accomplished prior to issuance of the order; or(7-1-24)

ii.A response with supporting information demonstrating the permit holder made a substantial investment, prior to receipt of the order, in project works to divert and beneficially use water under the permit that merits the granting of additional time to complete all or part of the project.(7-1-24)

iii.Failure to submit proof of beneficial use or a response will result in suspension of further development of the permit.(7-1-24)

d.Objections to the Director’s action will be considered pursuant to IDAPA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources,” and applicable law.(7-1-24)

IDAPA 37.03.08.056 (Reserved)

APPENDIX A

37.03.11 Rules for Conjunctive Management of Surface and Ground Water Resources

IDAPA 37.03.11.000 Legal Authority (rule 0)

These rules are promulgated pursuant to Chapter 52, Title 67, Idaho Code, the Idaho Administrative Procedure Act, and Sect ion 42-603, Idaho Code, which provides that the Director of the Department of Water Resources is authorized to adopt rules and regulations for the distribution of water from the streams, rivers, lakes, ground water and other natural water sources as necessary to carry out the laws in accordance with the priorities of the rights of the users thereof. These rules are also issued pursuant to Section 42-1805(8), Idaho Code, which provides the Director with authority to promulgate rules implementing or effectuating the powers and duties of the department. (3-31-22)

IDAPA 37.03.11.001 Scope (rule 1)

The rules prescribe procedures for responding to a delivery call made by th e holder of a senior-priority surface or ground water right against the holder of a junior-priority ground water right in an area having a common ground water supply. It is intended that these rules be incorporated into general rules governing water distribution in Idaho when such rules are adopted subsequently.(3-31-22)

IDAPA 37.03.11.002 Other Authorities Remain Applicable (rule 2)

Nothing in these rules limits the Director’s authority to take alternative or additional actions relating to the man agement of water resources as provided by Idaho law.(3-31-22)

IDAPA 37.03.11.003 (Reserved)

IDAPA 37.03.11.010 Definitions (rule 10)

For the purposes of these rules, the following terms will be used as defined below.(3-31-22) 01.

Area Having a Common Ground Water Supply. A ground water source within which the diversion and use of ground water or changes in ground water recharge affect the flow of water in a surface water source or within which the diversion and use of water by a holder of a ground water right affects the ground water supply available to the holders of other ground water rights. (Section 42-237a.g., Idaho Code)(3-31-22)

02.Artificial Ground Water Recharge. A deliberate and purposeful activity or project that is performed in accordance with Section 42-234(2), Idaho Code, and that diverts, distributes, injects, stores or spreads water to areas from which such water will enter into and recharge a ground water source in an area having a common

03.Conjunctive Management. Legal and hydrologic integration of administration of the diversion and use of water under water rights from surface and ground water sources, including areas having a common ground water supply.(3-31-22)

04.Delivery Call. A request from the holder of a water right for administration of water rights under the prior appropriation doctrine.(3-31-22)

05.Department. The Department of Water Resources created by Section 42-1701, Idaho Code.

06.Director. The Director of the Department of Water Resources appointed as provided by Section 42- 1801, Idaho Code, or an employee, hearing officer or other appointee of the Department who has been delegated to act for the Director as provided by Section 42-1701, Idaho Code.(3-31-22)

07.Full Economic Development of Underground Water Resources. The diversion and use of water from a ground water source for beneficial uses in the public interest at a rate that does not exceed the reasonably anticipated average rate of future natural recharge, in a manner that does not result in material injury to senior-priority surface or ground water rights, and that furthers the principle of reasonable use of surface and ground water as set forth in Rule 42.(3-31-22)

08.Futile Call. A delivery call made by the holder of a senior-priority surface or ground water right that, for physical and hydrologic reasons, cannot be satisfied within a reasonable time of the call by immediately curtailing diversions under junior-priority ground water rights or that would result in waste of the water resource.

09.Ground Water Management Area. Any ground water basin or designated part thereof as designated by the Director pursuant to Section 42-233(b), Idaho Code.(3-31-22)

10.Ground Water. Water under the surface of the ground whatever may be the geological structure in which it is standing or moving as provided in Section 42-230(a), Idaho Code.(3-31-22)

11.Holder of a Water Right. The legal or beneficial owner or user pursuant to lease or contract of a right to divert or to protect in place surface or ground water of the state for a beneficial use or purpose.(3-31-22)

12.Idaho Law. The constitution, statutes, administrative rules and case law of Idaho.(3-31-22)

13.Junior-Priority. A water right priority date later in time than the priority date of other water rights being considered.(3-31-22)

14.Material Injury. Hindrance to or impact upon the exercise of a water right caused by the use of water by another person as determined in accordance with Idaho Law, as set forth in Rule 42.(3-31-22)

15.Mitigation Plan. A document submitted by the holder(s) of a junior-priority ground water right 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 holders of junior-priority ground water rights within an area having a common ground water supply.(3-31-22)

16.Person. Any individual, partnership, corporation, association, governmental subdivision or agency, or public or private organization or entity of any character.(3-31-22)

17.Petitioner. Person who asks the Department to initiate a contested case or to otherwise take action that will result in the issuance of an order or rule.(3-31-22)

18.Reasonable Ground Water Pumping Level. A level established by the Director pursuant to Sections 42-226, and 42-237a.g., Idaho Code, either generally for an area or aquifer or for individual water rights on a case-by-case basis, for the purpose of protecting the holders of senior-priority ground water rights against unreasonable lowering of ground water levels caused by diversion and use of surface or ground water by the holders of junior-priority surface or ground water rights under Idaho law.(3-31-22)

19.Reasonably Anticipated Average Rate of Future Natural Recharge. The estimated average annual volume of water recharged to an area having a common ground water supply from precipitation, underflow from tributary sources, and stream losses and also water incidentally recharged to an area having a common ground water supply as a result of the diversion and use of water for irrigation and other purposes. The estimate will be based on available data regarding conditions of diversion and use of water existing at the time the estimate is made and may vary as these conditions and available information change.(3-31-22)

20.Respondent. Persons against whom complaints or petitions are filed or about whom investigations are initiated.(3-31-22)

21.Senior-Priority. A water right priority date earlier in time than the priority dates of other water rights being considered.(3-31-22)

22.Surface Water. Rivers, streams, lakes and springs when flowing in their natural channels as provid ed in Sections 42-101 and 42-103, Idaho Code.(3-31-22)

23.Water District. An instrumentality of the state of Idaho created by the Director as provided in Section 42-604, Idaho Code, for the purpose of performing the essential governmental function of distribution of water among appropriators under Idaho law.(3-31-22)

24.Watermaster. A person elected and appointed as provided in Section 42-605, and Section 42-801, Idaho Code, to distribute water within a water district.(3-31-22)

25.Water Right. The legal right to divert and use or to protect in place the public waters of the state of Idaho where such right is evidenced by a decree, a permit or license issued by the Department, a beneficial or constitutional use right or a right based on federal law.(3-31-22)

IDAPA 37.03.11.011 (Reserved)

IDAPA 37.03.11.020 General Statements of Purpose and Policies for Conjunctive

MANAGEMENT OF SURFACE AND GROUND WATER RESOURCES (RULE 20).

01.Distribution of Water Among the Holders of Senior and Junior-Priority Rights. These rules apply to all situations in the state where the diversion and use of water under junior-priority ground water rights either individually or collectively causes material injury to uses of water under senior-priority water rights. The rules govern the distribution of water from ground water sources and areas having a common ground water supply.(3-31-22)

02.Prior Appropriation Doctrine. These rules acknowledge all elements of the prior appropriation doctrine as established by Idaho law.(3-31-22)

03.Reasonable Use of Surface and Ground Water. These rules integrate the administration and use of surface and ground water in a manner consistent with the traditional policy of reasonable use of both surface and ground water. The policy of reasonable use includes the concepts of priority in time and superiority in right being subject to conditions of reasonable use as the legislature may by law prescribe as provided in Article XV, Section 5, Idaho Constitution, optimum development of water resources in the public interest prescribed in Article XV, Section 7, Idaho Constitution, and full economic development as defined by Idaho law. An appropriator is not entitled to command the entirety of large volumes of water in a surface or ground water source to support his appropriation contrary to the public policy of reasonable use of water as described in this rule.(3-31-22)

04.Delivery Calls. These rules provide the basis and procedure for responding to delivery calls made by the holder of a senior-priority surface or ground water right against the holder of a junior-priority ground water right. The principle of the futile call applies to the distribution of water under these rules. Although a call may be denied under the futile call doctrine, these rules may require mitigation or staged or phased curtailment of a juniorpriority use if diversion and use of water by the holder of the junior-priority water right causes material injury, even though not immediately measurable, to the holder of a senior-priority surface or ground water right in instances where the hydrologic connection may be remote, the resource is large and no direct immediate relief would be achieved if the junior-priority water use was discontinued.(3-31-22)

05.Exercise of Water Rights. These rules provide the basis for determining the reasonableness of the diversion and use of water by both the holder of a senior-priority water right who requests priority delivery and the holder of a junior-priority water right against whom the call is made.(3-31-22)

06.Areas Having a Common Ground Water Supply. These rules provide the basis for the designation of areas of the state that have a common ground water supply and the procedures that will be followed in incorporating the water rights within such areas into existing water districts or creating new districts as provided in Section 42-237a.g., and Section 42-604, Idaho Code, or designating such areas as ground water management areas as provided in Section 42-233(b), Idaho Code.(3-31-22)

07.Sequence of Actions for Responding to Delivery Calls. Rule 30 provides procedures for responding to delivery calls within areas having a common ground water supply that have not been incorporated into an existing or new water district or designated a ground water management area. Rule 40 provides procedures for responding to delivery calls within water districts where areas having a common ground water supply have been incorporated into the district or a new district has been created. Rule 41 provides procedures for responding to delivery calls within areas that have been designated as ground water management areas. Rule 50 designates specific known areas having a common ground water supply within the state.(3-31-22)

08.Reasonably Anticipated Average Rate of Future Natural Recharge. These rules provide for administration of the use of ground water resources to achieve the goal that withdrawals of ground water not exceed the reasonably anticipated average rate of future natural recharge. (Section 42-237a.g., Idaho Code)(3-31-22)

09.Saving of Defenses. Nothing in these rules affects or in any way limit any person’s entitlement to assert any defense or claim based upon fact or law in any contested case or other proceeding.(3-31-22)

10.Wells as Alternate or Changed Points of Diversion for Water Rights from a Surface Water Source. Nothing in these rules prohibits any holder of a water right from a surface water source from seeking, pursuant to Idaho law, to change the point of diversion of the water to an inter-connected area having a common

11.Domestic and Stock Watering Ground Water Rights Exempt. A delivery call shall not be effective against any ground water right used for domestic purposes regardless of priority date where such domestic use is within the limits of the definition set forth in Section 42-111, Idaho Code, nor against any ground water right used for stock watering where such stock watering use is within the limits of the definition set forth in Section 42- 1401A(11), Idaho Code; provided, however, this exemption shall not prohibit the holder of a water right for domestic or stock watering uses from making a delivery call, including a delivery call against the holders of other domestic or stockwatering rights, where the holder of such right is suffering material injury.(3-31-22)

IDAPA 37.03.11.021 (Reserved)

IDAPA 37.03.11.030 Responses to Calls for Water Delivery in an Unorganized Water District

OR WITH NO GROUND WATER REGULATION (RULE 30).

Responses to calls for water delivery made by the holders of senior -priority surface or ground water rights against the holders of junior-priority ground water rights within areas of the state not in organized water districts or within water districts where ground water regulation has not been included in the functions of such districts or within areas that have not been designated ground water management areas shall be as follows:(3-31-22)

01.Delivery Call (Petition). When a delivery call is made by the holder of a surface or ground water right (petitioner) alleging that by reason of diversion of water by the holders of one (1) or more junior-priority ground water rights (respondents) the petitioner is suffering material injury, the petitioner shall file with the Director a petition in writing containing, at least, the following in addition to the information required by IDAPA 37.01.01, “Rules of Procedure of the Department of Water Resources,” Rule 230:(3-31-22)

a.A description of the water rights of the petitioner including a listing of the decree, license, permit, claim or other documentation of such right, the water diversion and delivery system being used by petitioner and the beneficial use being made of the water.(3-31-22)

b.The names, addresses and description of the water rights of the ground water users (respondents) who are alleged to be causing material injury to the rights of the petitioner in so far as such information is known by the petitioner or can be reasonably determined by a search of public records.(3-31-22)

c.All information, measurements, data or study results available to the petitioner to support the claim of material injury.(3-31-22)

d.A description of the area having a common ground water supply within which petitioner desires junior-priority ground water diversion and use to be regulated.(3-31-22)

02.Contested Case. The Department will consider the matter as a petition for contested case under the Department’s Rules of Procedure, IDAPA 37.01.01. The petitioner shall serve the petition upon all known respondents as required by IDAPA 37.01.01, “Rules of Procedure of the Department of Water Resources,” Rule 203.

In addition to such direct service by petitioner, the Department will give such general notice by publication or news release as will advise ground water users within the petitioned area of the matter.(3-31-22)

03.Informal Resolution. The Department may initially consider the contested case for informal resolution under the provisions of Section 67-5241, Idaho Code, if doing so will expedite the case without prejudicing the interests of any party.(3-31-22)

04.Petition for Modification of an Existing Water District. In the event the petition proposes regulation of ground water rights conjunctively with surface water rights in an organized water district, and the water rights have been adjudicated, the Department may consider such to be a petition for modification of the organized water district and notice of proposed modification of the water district shall be provided by the Director pursuant to Section 42-604, Idaho Code. The Department will proceed to consider the matter addressed by the petition under the Department’s Rules of Procedure.(3-31-22)

05.Petition for Creation of a New Water District. In the event the petition proposes regulation of ground water rights from a ground water source or conjunctively with surface water rights within an area having a common ground water supply which is not in an existing water district, and the water rights have been adjudicated, the Department may consider such to be a petition for creation of a new water district and notice of proposed creation of a water district shall be provided by the Director pursuant to Section 42-604, Idaho Code. The Department will proceed to consider the matter under the Department’s Rules of Procedure.(3-31-22)

06.Petition for Designation of a Ground Water Management Area. In the event the petition proposes regulation of ground water rights from an area having a common ground water supply within which the water rights have not been adjudicated, the Department may consider such to be a petition for designation of a ground water management area pursuant to Section 42-233(b), Idaho Code. The Department will proceed to consider the matter under the Department’s Rules of Procedure.(3-31-22)

07.Order. Following consideration of the contested case under the Department’s Rules of Procedure, the Director may, by order, take any or all of the following actions:(3-31-22)

a.Deny the petition in whole or in part;(3-31-22)

b.Grant the petition in whole or in part or upon conditions;(3-31-22)

c.Determine an area having a common ground water supply which affects the flow of water in a surface water source in an organized water district;(3-31-22)

d.Incorporate an area having a common ground water supply into an organized water district following the procedures of Section 42-604, Idaho Code, provided that the ground water rights that would be incorporated into the water district have been adjudicated relative to the rights already encompassed within the district;(3-31-22)

e.Create a new water district following the procedures of Section 42-604, Idaho Code, provided that the water rights to be included in the new water district have been adjudicated;(3-31-22)

f.Determine the need for an adjudication of the priorities and permissible rates and volumes of diversion and consumptive use under the surface and ground water rights of the petitioner and respondents and initiate such adjudication pursuant to Section 42-1406, Idaho Code;(3-31-22)

g.By summary order as provided in Section 42-237 a.g., Idaho Code, prohibit or limit the withdrawal of water from any well during any period it is determined that water to fill any water right is not there available without causing ground water levels to be drawn below the reasonable ground water pumping level, or would affect the present or future use of any prior surface or ground water right or result in the withdrawing of the ground water supply at a rate beyond the reasonably anticipated average rate of future natural recharge. The Director will take into consideration the existence of any approved mitigation plan before issuing any order prohibiting or limiting withdrawal of water from any well; or(3-31-22)

h.Designate a ground water management area under the provisions of Section 42-233(b), Idaho Code, if it appears that administrat ion of the diversion and use of water from an area having a common ground water supply is required because the ground water supply is insufficient to meet the demands of water rights or the diversion and use of water is at a rate beyond the reasonably anticipated average rate of future natural recharge and modification of an existing water district or creation of a new water district cannot be readily accomplished due to the need to first obtain an adjudication of the water rights.(3-31-22)

08.Orders for Interim Administration. For the purposes of Rule Subsections 030.07.d. and 030.07.e., an outstanding order for interim administration of water rights issued by the court pursuant to Section 42- 1417, Idaho Code, in a general adjudication proceeding shall be considered as an adjudication of the water rights involved.(3-31-22)

09.Administration Pursuant to Rule 40. Upon a finding of an area of common ground water supply and upon the incorporation of such area into an organized water district, or the creation of a new water district, the use of water shall be administered in accordance with the priorities of the various water rights as provided in Rule 40.

10.Administration Pursuant to Rule 41. Upon the designation of a ground water management area, the diversion and use of water within such area shall be administered in accordance with the priorities of the various water rights as provided in Rule 41.(3-31-22)

IDAPA 37.03.11.031 Determining Areas Having a Common Ground Water Supply (rule 31)

01.Director to Consider Information.

The Director will consider all available data and information that describes the relationship between ground water and surface water in making a finding of an area of common

02.Kinds of Information. The information considered may include, but is not limited to, any or all of the following:(3-31-22)

a.Water level measurements, studies, reports, computer simulations, pumping tests, hydrographs of stream flow and ground water levels and other such data; and(3-31-22)

b.The testimony and opinion of expert witnesses at a hearing on a petition for expansion of a water district or organization of a new water district or designation of a ground water management area.(3-31-22)

03.Criteria for Findings. A ground water source will be determined to be an area having a common ground water supply if:(3-31-22)

a.The ground water source supplies water to or receives water from a surface water source; or

b.Diversion and use of water from the ground water source will cause water to move from the surface water source to the ground water source.(3-31-22)

c.Diversion and use of water from the ground water source has an impact upon the ground water supply available to other persons who divert and use water from the same ground water source.(3-31-22)

04.Reasonably Anticipated Average Rate of Future Natural Recharge. The Director will estimate the reasonably anticipated average rate of future natural recharge for an area having a common ground water supply.

Such estimates will be made and updated periodically as new data and information are available and conditions of diversion and use change.(3-31-22)

05.Findings. The findings of the Director will be included in the Order issued pursuant to Rule Subsection 030.07.(3-31-22)

IDAPA 37.03.11.032 (Reserved)

IDAPA 37.03.11.040 Responses to Calls for Water Delivery in an Organized Water District

(RULE 40).

Responses to calls for water delivery made by the holders of senior -priority surface or ground water rights against the holders of junior-priority ground water rights from areas having a common ground water supply in an organized water district shall be as follows:(3-31-22)

01.Responding to a Delivery Call. When a delivery call is made by the holder of a senior-priority water right (petitioner) alleging that by reason of diversion of water by the holders of one (1) or more junior-priority ground water rights (respondents) from an area having a common ground water supply in an organized water district the petitioner is suffering material injury, and upon a finding by the Director as provided in Rule 42 that material injury is occurring, the Director, through the watermaster, shall:(3-31-22)

a.Regulate the diversion and use of water in accordance with the priorities of rights of the various surface or ground water users whose rights are included within the district, provided, that regulation of junior-priority ground water diversion and use where the material injury is delayed or long range may, by order of the Director, be phased-in over not more than a five-year (5) period to lessen the economic impact of immediate and complete curtailment; or(3-31-22)

b.Allow out-of-priority diversion of water by junior-priority ground water users pursuant to a mitigation plan that has been approved by the Director.(3-31-22)

02.Regulation of Uses of Water by Watermaster. The Director, through the watermaster, shall regulate use of water within the water district pursuant to Idaho law and the priorities of water rights as provided in Section 42-604, Idaho Code, and under the following procedures:(3-31-22)

a.The watermaster shall determine the quantity of surface water of any stream included within the water district which is available for diversion and shall shut the headgates of the holders of junior-priority surface water rights as necessary to assure that water is being diverted and used in accordance with the priorities of the respective water rights from the surface water source.(3-31-22)

b.The watermaster shall regulate the diversion and use of ground water in accordance with the rights thereto, approved mitigation plans and orders issued by the Director.(3-31-22)

c.Where a call is made by the holder of a senior-priority water right against the holder of a juniorpriority ground water right in the water district the watermaster shall first determine whether a mitigation plan has been approved by the Director whereby diversion of ground water may be allowed to continue out of priority order. If the holder of a junior-priority ground water right is a participant in such approved mitigation plan, and is operating in conformance therewith, the watermaster shall allow the ground water use to continue out of priority.(3-31-22)

d.The watermaster shall maintain records of the diversions of water by surface and ground water users within the water district and records of water provided and other compensation supplied under the approved mitigation plan which shall be compiled into the annual report which is required by Section 42-606, Idaho Code.

e.Under the direction of the Department, watermasters of separate water districts shall cooperate and reciprocate in assisting each other in assuring that diversion and use of water under water rights is administered in a manner to assure protection of senior-priority water rights provided the relative priorities of the water rights within the separate water districts have been adjudicated.(3-31-22)

03.Reasonable Exercise of Rights. In determining whether diversion and use of water under rights will be regulated under Rule Subsection 040.01.a. or 040.01.b., the Director shall consider whether the petitioner making the delivery call is suffering material injury to a senior-priority water right and is diverting and using water ef ficiently and without waste, and in a manner consistent with the goal of reasonable use of surface and ground waters as described in Rule 42. The Director will also consider whether the respondent junior-priority water right holder is using water efficiently and without waste.(3-31-22)

04.Actions of the Watermaster Under a Mitigation Plan. Where a mitigation plan has been approved as provided in Rule 42, the watermaster may permit the diversion and use of ground water to continue out of priority order within the water district provided the holder of the junior-priority ground water right operates in accordance with such approved mitigation plan.(3-31-22)

05.Curtailment of Use Where Diversions Not in Accord With Mitigation Plan or Mitigation Plan Is Not Effective. Where a mitigation plan has been approved and the junior-priority ground water user fails to operate in accordance with such approved plan or the plan fails to mitigate the material injury resulting from diversion and use of water by holders of junior-priority water rights, the watermaster will notify the Director who will immediately issue cease and desist orders and direct the watermaster to terminate the out-of-priority use of ground water rights otherwise benefiting from such plan or take such other actions as provided in the mitigation plan to ensure protection of senior-priority water rights.(3-31-22)

06.Collection of Assessments Within Water District. Where a mitigation plan has been approved, the watermaster of the water district shall include the costs of administration of the plan within the proposed annual operation budget of the district; and, upon approval by the water users at the annual water district meeting, the water district shall provide for the collection of assessment of ground water users as provided by the plan, collect the assessments and expend funds for the operation of the plan; and the watermaster shall maintain records of the volumes of water or other compensation made available by the plan and the disposition of such water or other compensation.(3-31-22)

IDAPA 37.03.11.041 Administration of Diversion and Use of Water Within a Ground Water

MANAGEMENT AREA (RULE 41).

01.Responding to a Delivery Call.

When a delivery call is made by the holder of a senior-priority ground water right against holders of junior-priority ground water rights in a designated ground water management area alleging that the ground water supply is insufficient to meet the demands of water rights within all or portions of the ground water management area and requesting the Director to order water right holders, on a time priority basis, to cease or reduce withdrawal of water, the Director shall proceed as follows:(3-31-22)

a.The petitioner shall be required to submit all information available to petitioner on which the claim is based that the water supply is insufficient.(3-31-22)

b.The Director will conduct a fact-finding hearing on the petition at which the petitioner and respondents may present evidence on the water supply, and the diversion and use of water from the ground water management area.(3-31-22)

02.Order. Following the hearing, the Director may take any or all of the following actions: (3-31-22)

a.Deny the petition in whole or in part;(3-31-22)

b.Grant the petition in whole or in part or upon conditions;(3-31-22)

c.Find that the water supply of the ground water management area is insufficient to meet the demands of water rights within all or portions of the ground water management area and order water right holders on a time priority basis to cease or reduce withdrawal of water, provided that the Director shall consider the expected benefits of an approved mitigation plan in making such finding.(3-31-22)

d.Require the installation of measuring devices and the reporting of water diversions pursuant to Section 42-701, Idaho Code.(3-31-22)

03.Date and Effect of Order. Any order to cease or reduce withdrawal of water will be issued prior to September 1 and shall be effective for the growing season during the year following the date the order is given and until such order is revoked or modified by further order of the Director.(3-31-22)

04.Preparation of Water Right Priority Schedule. For the purposes of the Order provided in Rule Subsections 041.02 and 041.03, the Director will utilize all available water right records, claims, permits, licenses and decrees to prepare a water right priority schedule.(3-31-22)

IDAPA 37.03.11.042 Determining Material Injury and Reasonab

LENESS OF WATER DIVERSIONS

(RULE 42).

01.Factors.

Factors the Director may consider in determining whether the holders of water rights are suffering material injury and using water efficiently and without waste include, but are not limited to, the following:

a.The amount of water available in the source from which the water right is diverted.(3-31-22)

b.The effort or expense of the holder of the water right to divert water from the source.(3-31-22)

c.Whether the exercise of junior-priority ground water rights individually or collectively affects the quantity and timing of when water is available to, and the cost of exercising, a senior-priority surface or ground water right. This may include the seasonal as well as the multi-year and cumulative impacts of all ground water withdrawals from the area having a common ground water supply.(3-31-22)

d.If for irrigation, the rate of diversion compared to the acreage of land served, the annual volume of water diverted, the system diversion and conveyance efficiency, and the method of irrigation water application.

e.The amount of water being diverted and used compared to the water rights.(3-31-22)

f.The existence of water measuring and recording devices.(3-31-22)

g.The extent to which the requirements of the holder of a senior-priority water right could be met with the user’s existing facilities and water supplies by employing reasonable diversion and conveyance efficiency and conservation practices; provided, however, the holder of a surface water storage right shall be entitled to maintain a reasonable amount of carry-over storage to assure water supplies for future dry years. In determining a reasonable amount of carry-over storage water, the Director shall consider the average annual rate of fill of storage reservoirs and the average annual carry-over for prior comparable water conditions and the projected water supply for the system.

h.The extent to which the requirements of the senior-priority surface water right could be met using alternate reasonable means of diversion or alternate points of diversion, including the construction of wells or the use of existing wells to divert and use water from the area having a common ground water supply under the petitioner’s surface water right priority.(3-31-22)

02.Delivery Call for Curtailment of Pumping. The holder of a senior-priority surface or ground water right will be prevented from making a delivery call for curtailment of pumping of any well used by the holder of a junior-priority ground water right where use of water under the junior-priority right is covered by an approved and effectively operating mitigation plan.(3-31-22)

IDAPA 37.03.11.043 Mitigation Plans (rule 43)

01.Submission of Mitigation Plans.

A proposed mitigation plan shall be submitted to the Director in writing and contain the following information:(3-31-22)

a.The name and mailing address of the person or persons submitting the plan.(3-31-22)

b.Identification of the water rights for which benefit the mitigation plan is proposed.(3-31-22)

c.A description of the plan setting forth the water supplies proposed to be used for mitigation and any circumstances or limitations on the availability of such supplies.(3-31-22)

d.Such information as will allow the Director to evaluate the factors set forth in Rule Subsection

IDAPA 37.03.11.043 03.(3-31-22)

02.Notice and Hearing. Upon receipt of a proposed mitigation plan the Director will provide notice, hold a hearing as determined necessary, and consider the plan under the procedural provisions of Section 42-222, Idaho Code, in the same manner as applications to transfer water rights.(3-31-22)

03.Factors to Be Considered. Factors that may be considered by the Director in determining whether a proposed mitigation plan will prevent injury to senior rights include, but are not limited to, the following: (3-31-22)

a.Whether delivery, storage and use of water pursuant to the mitigation plan is in compliance with Idaho law.(3-31-22)

b.Whether the mitigation plan will provide replacement water, at the time and place required by the senior-priority water right, sufficient to offset the depletive effect of ground water withdrawal on the water available in the surface or ground water source at such time and place as necessary to satisfy the rights of diversion from the surface or ground water source. Consideration will be given to the history and seasonal availability of water for diversion so as not to require replacement water at times when the surface right historically has not received a full supply, such as during annual low-flow periods and extended drought periods.(3-31-22)

c.Whether the mitigation plan provides replacement water supplies or other appropriate compensation to the senior-priority water right when needed during a time of shortage even if the effect of pumping is spread over many years and will continue for years after pumping is curtailed. A mitigation plan may allow for multiseason accounting of ground water withdrawals and provide for replacement water to take advantage of variability in seasonal water supply. The mitigation plan must include contingency provisions to assure protection of the seniorpriority right in the event the mitigation water source becomes unavailable.(3-31-22)

d.Whether the mitigation plan proposes artificial recharge of an area of common ground water supply as a means of protecting ground water pumping levels, compensating senior-priority water rights, or providing aquifer storage for exchange or other purposes related to the mitigation plan.(3-31-22)

e.Where a mitigation plan is based upon computer simulations and calculations, whether such plan uses generally accepted and appropriate engineering and hydrogeologic formulae for calculating the depletive effect of the ground water withdrawal.(3-31-22)

f.Whether the mitigation plan uses generally accepted and appropriate values for aquifer characteristics such as transmissivity, specific yield, and other relevant factors.(3-31-22)

g.Whether the mitigation plan reasonably calculates the consumptive use component of ground water diversion and use.(3-31-22)

h.The reliability of the source of replacement water over the term in which it is proposed to be used under the mitigation plan.(3-31-22)

i.Whether the mitigation plan proposes enlargement of the rate of diversion, seasonal quantity or time of diversion under any water right being proposed for use in the mitigation plan.(3-31-22)

j.Whether the mitigation plan is consistent with the conservation of water resources, the public interest or injures other water rights, or would result in the diversion and use of ground water at a rate beyond the reasonably anticipated average rate of future natural recharge.(3-31-22)

k.Whether the mitigation plan provides for monitoring and adjustment as necessary to protect seniorpriority water rights from material injury.(3-31-22)

l.Whether the plan provides for mitigation of the effects of pumping of existing wells and the effects of pumping of any new wells which may be proposed to take water from the areas of common ground water supply.

m.Whet her the mitigation plan provides for future participation on an equitable basis by ground water pumpers who divert water under junior-priority rights but who do not initially participate in such mitigation plan.

n.A mitigation plan may propose division of the area of common ground water supply into zones or segments for the purpose of consideration of local impacts, timing of depletions, and replacement supplies. (3-31-22)

o.Whether the petitioners and respondents have entered into an agreement on an acceptable mitigation plan even though such plan may not otherwise be fully in compliance with these provisions.(3-31-22)

IDAPA 37.03.11.044 (Reserved)

IDAPA 37.03.11.050 Areas Determined to Have a Common Ground Water Supply (rule 50)

01.Eastern Snake Plain Aquifer.

The area of coverage of this rule is the aquifer underlying the Eastern Snake River Plain as defined in Section 42-233c, Idaho Code.(7-1-25)

IDAPA 37.03.11.051 (Reserved)

37.02.03 Water Supply Bank Rules

IDAPA 37.02.03.000 Legal Authority (rule 0)

This chapter is adopted under the legal authority of Section 42-1762, Idaho Code.(3-18-22)

IDAPA 37.02.03.001 Title and Scope (rule 1)

01.Title.

The title of this chapter is IDAPA 37.02.03, “Water Supply Bank Rules.”(3-18-22)

02.Scope. These rules were first adopted by the Water Resource Board in October 1980 as mandated by Section 42-1762, Idaho Code enacted in 1979. The rules govern the Board’s operation and management of a Water Supply Bank provided for in Sections 42-1761 to 42-1766, Idaho Code. The purposes of the Water Supply Bank, as defined by statute, are to encourage the highest beneficial use of water; provide a source of adequate water supplies to benefit new and supplemental water uses; and provide a source of funding for improving water user facilities and efficiencies. These rules are to be used by the Water Resource Board in considering the purchase, sale, lease or rental of natural flow or stored water, the use of any funds generated therefrom, and the appointment of local committees to facilitate the lease and rental of stored water. The purchase, sale, lease or rental of water shall be in compliance with state and federal law. The adoption of these rules is not intended to prevent any person from directly selling or leasing water by transactions outside the purview of the Water Supply Bank Rules where such transactions are otherwise allowed by law.(3-18-22)

IDAPA 37.02.03.002 (Reserved)

IDAPA 37.02.03.010 Definitions (rule 10)

01.Board.

The Idaho Water Resource Board.(3-18-22)

02.Board's Water Supply Bank. The water exchange market operated directly by the Board to facilitate marketing of water rights.(3-18-22)

03.Director. The Director of the Idaho Department of Water Resources.(3-18-22)

04.Department. The Idaho Department of Water Resources.(3-18-22)

05.Lease. To convey by contract a water right to the Board’s water supply bank or stored water to a rental pool operated by a local committee.(3-18-22)

06.Local Committee. The committee which has been designated by action of the Board to facilitate marketing of stored water by operating a rental pool pursuant to Section 42-1765, Idaho Code.(3-18-22)

07.Natural Flow. Water or the right to use water that exists in a spring, stream, river, or aquifer at a certain time and which is not the result of the storage of water flowing at a previous time.(3-18-22)

08.Rent. To convey by contract a water right from the Board’s water supply bank or stored water from a rental pool.(3-18-22)

09.Rental Pool. A market for exchange of stored water operated by a local committee.(3-18-22)

10.Stored Water. Water made available by detention in surface reservoirs or storage space in a surface reservoir.(3-18-22)

11.Water Right. The right to divert and beneficially use the public waters of the state of Idaho including any storage entitlement.(3-18-22)

12.Water Supply Bank. The water exchange market operated by the Water Resource Board pursuant to Section 42-1761 through 42-1766, Idaho Code, and these rules and is a general term which includes the Board’s water supply bank and rental pools.(3-18-22)

13.Year. A time period of twelve (12) consecutive months.(3-18-22)

14.Person. Any company, corporation, association, firm, agency, individual, partnership, Indian tribe, government or other entity.(3-18-22)

IDAPA 37.02.03.011 (Reserved)

IDAPA 37.02.03.025 Acquisition of Water Rights for the Board's Water Supply Bank (rule 25)

01.General.

The Board may purchase, lease, accept as a gift or otherwise obtain rights to natural flow or stored water and credit them to the Board’s water supply bank. These water rights may then be divided or combined into more marketable blocks provided that there is no injury to other right holders, or enlargement of use of the water rights, and the change is in the local public interest. Any person proposing to sell or lease water rights to the Board’s water supply bank, or to otherwise make water available through the water supply bank for the purposes of Section 42-1763A, Idaho Code, shall file a completed application with the Director on a forms or in a format provided by the Department and provide such additional information as the Board or Director may require in evaluating the proposed transaction. The completed application form shall state the period of time a water right is offered for lease, or the period of time that storage water will be released for fish migration purposes in accordance with Section 42-1763A, Idaho Code, and the payment terms, if any, requested by the applicant.(3-18-22)

02.Application. Submitted with the completed application shall be:(3-18-22)

a.Evidence that the water right has been recorded through court decree, permit or license issued by the Department. If the right is included in an ongoing adjudication, a copy of the claim is required;(3-18-22)

b.Proof of current ownership of the water right by the applicant;(3-18-22)

c.Information that the water right has not been lost through abandonment, or forfeiture as defined by Section 42-222(2), Idaho Code;(3-18-22)

d.Evidence to demonstrate the relative availability of water in the source to fill the water right; and

e.The written consent of such company, corporation or irrigation district to the proposed sale or lease must accompany the application if the right to the use of the water, or the use of the diversion works or irrigation system is represented by shares of stock in a company or corporation, or if such works or system is owned or managed by an irrigation district.(3-18-22)

f.A lease application filing fee of two hundred fifty dollars ($250) per water right up to a maximum total of five hundred dollars ($500.00) for overlapping water rights which have a common place of use or common diversion rate or diversion volume. The lease filing fee described herein shall be deposited in the Water Administration Account and shall not apply to applications to lease stored water into rental pools described in Rule

40.(3-18-22)

03.Review. Upon receipt of the completed application the Director will review it for completeness and make such further review as he deems necessary to adequately brief the Board on the proposed transaction. (3-18-22)

04.Inadequate Application. If an application is not complete, the Director will correspond with the applicant to obtain the needed information. If the requested information is not returned in thirty (30) days, the application will no longer be considered a valid request to place a water right into the Board’s water supply bank.

05.Consideration. The Board may consider an application at any regular or special meeting.

06.Criteria. The Board will consider the following in determining whether to accept an offered water right into the Board’s water supply bank:(3-18-22)

a.Whether the applicant is the current owner, title holder or contract water user of the water right proposed to be transferred to the Board’s water supply bank or has authority to act on behalf of the owner; (3-18-22)

b.Whether all necessary consents have been filed with the Board;(3-18-22)

c.Whether the information available to the Board indicates that the water right has been abandoned or forfeited;(3-18-22)

d.Whether the offering price or requested rental rate is reasonable;(3-18-22)

e.Whether acquisition of the water right will be contrary to the State Water Plan;(3-18-22)

f.Whether the application is in the local public interest as defined in Section 42-1763, Idaho Code;

g.The probability of selling or renting the water right from the Board’s water supply bank. (3-18-22)

h.Whether there are sufficient funds on hand to acquire the water right for the Board’s water supply bank, provided that, if there are insufficient funds, or if in the opinion of the Board, existing funds should not immediately be expended for such acquisition, the Board may find that the water right should be acquired on a contingency basis, with payment to be made to the seller or lessor only after water is subsequently sold or rented from the Board’s water supply bank, and(3-18-22)

i.Such other factors as determined to be appropriate by the Board.(3-18-22)

07.Resolution of Board. The Board may by resolution accept an application to sell or lease a water right to the Board’s water supply bank, or to otherwise make water available through the water supply bank for the purposes of Section 42-1763A, Idaho Code. An application to lease together with the resolution accepting it becomes a lease and the water right is placed into the Board’s water supply bank upon adoption of the resolution. A resolution accepting an application to sell a right to the Board’s water supply bank will provide authority for the chairman of the Board to enter an agreement to purchase the water right. The resolution may include conditions of approval, including but not limited to, the following:(3-18-22)

a.A condition providing the length of time the water right will be retained in the Board’s water supply bank.(3-18-22)

b.A condition describing the terms for payment to the owner of the water right and the sale or rental price from the Board’s water supply bank.(3-18-22)

c.Other conditions as the Board determines appropriate, including a condition recognizing that water is being made available through the water supply bank pursuant to the provisions of Section 42-1763A, Idaho Code, for purposes of fish migration.(3-18-22)

08.Placement of Water Right. Effect of placement of a water right into the Board’s water supply bank.(3-18-22)

a.Upon acceptance of a water right into the Board’s water supply bank, the owner of the right may withdraw the right within thirty (30) days of acceptance into the bank if the owner does not agree with the conditions of acceptance.(3-18-22)

b.Upon acceptance of a water right into the Board’s water supply bank, the owner of the water right is not authorized to continue the diversion and use of the right while it is in the Board’s water supply bank, unless the water right is for hydropower and is placed in the Board’s water supply bank to be released for salmon migration and power production purposes.(3-18-22)

c.A water right which has been accepted shall remain in the Board’s water supply bank for the period designated by the Board unless removed by resolution of the Board.(3-18-22)

d.The owner of the water right shall remain responsible to take actions required to claim the water right in an adjudication or other legal action concerning the water right and to pay taxes, fees, or assessments related to the water right.(3-18-22)

e.The forfeiture provisions of Section 42-222(2), Idaho Code are tolled during the time period the water right is in the Board’s water supply bank, pursuant to the provisions of Section 42-1764, Idaho Code.

IDAPA 37.02.03.026 (Reserved)

IDAPA 37.02.03.030 Sale or Rental of Water Rights from the Board's Water Supply Bank (rule 30)

01.General.

The Board may in its discretion initiate the process to sell or rent water rights from the Board’s water supply bank to achieve the purposes stated in Rule 1. The Board may from time to time, as water rights are available, authorize the Director to announce the availability of the rights from the Board’s water supply bank, establishing a time and date for receiving applications in the office of the Director to purchase or rent the water rights.

An application shall be on a form or in a format provided by the Director. The sale or rental price shall be the price, if any, as determined by the Board. The Director will evaluate applications with respect to the purposes of Rule 1, as to whether there will be injury to other water rights, whether the proposal would constitute an enlargement of the water right, whether the water will be put to a beneficial use, whether the water supply available from applicable rights in the Board’s water supply bank is sufficient for the use intended, and whether the proposal is in the local public interest. For applications submitted pursuant to the interim authority provided by Section 42-1763A, Idaho Code, the Director will only make an evaluation as to whether the proposed use of water will cause injury to other water rights.

The Director may defer the evaluation of potential injury to other water rights conditioned upon the right of any affected water right holder to petition the Director pursuant to Section 42-1766, Idaho Code, to revoke or modify the rental approval upon a showing of injury.(3-18-22)

02.Notice. The Director may give notice of an intended rental as he deems necessary, provided that prior to approving any application for purchase, or for rental for a period of more than five (5) years, he shall give notice as required in Section 42-222(1), Idaho Code.(3-18-22)

03.Approval. Sale or rental shall be approved only for use of water within the state of Idaho. The Director shall consider in determining whether to approve a rental of water for use outside of the state of Idaho those factors enumerated in Section 42-401(3), Idaho Code, except that this evaluation shall not be required for applications submitted pursuant to the interim authority provided by Section 42-1763A, Idaho Code.(3-18-22)

04.Consideration. All applications received on or prior to the announced date for receiving applications shall be considered as having been received at the same time. Applications received after the close of the application date may be considered only if sufficient available water remains in the Board’s water supply bank after all acceptable, timely applications have been filed.(3-18-22)

05.Authorized to Rent. The Director is authorized to rent water rights offered by the Board from the Board’s water supply bank for a period up to five (5) years, but shall submit applications for purchase, or rental for a period of more than five (5) years to the Board for action. The Director will advise the Board on applications which require Board approval under Rule Subsection 025.06 whether he can approve the application in whole or in part or with conditions to comply with Section 42-1763, Idaho Code.(3-18-22)

06.Board Review. The Board will review applications for purchase or which propose the rental of water rights for a duration of more than five (5) years, and may approve, approve with conditions or may reject the applications as the Board determines to best meet the purposes of Rule 1 and promote the interest of the people of the state of Idaho.(3-18-22)

07.Order of Consideration. When renting water from the bank, the Director and the Board shall consid er rental of water rights in the order the rights were leased to the bank, with first consideration for the rights which have continuously been in the bank the longest period of time provided the rights are suitable for the purpose of the renter.(3-18-22)

IDAPA 37.02.03.031 (Reserved)

IDAPA 37.02.03.035 Handling of Money Associated with the Board's Water Supply Bank (rule 35)

Payments received by the Department from the sale or rental of water rights from the Board’s water supply bank shall be handled as follows:(3-18-22)

01.Credited Amount. Ten percent (10%) of the gross amount received from the sale or rental of a water right from the Board’s water supply bank and the entire lease application fee received pursuant to Rule 025 shall be credited to the Water Administration Account created by Section 42-238a, Idaho Code, or to the federal grant fund if the payment is received from a federal agency, for administrative costs of operating the Water Supply Bank.

The ten percent (10%) charge described herein shall not apply to stored water rented from the rental pools described in Rule 040.(3-18-22)

02.Excess Funds. Any funds in excess of the amount needed to compensate the owner of the water right in accordance with the resolution accepting the water right into the Board’s water supply bank and the administrative charge of Rule Subsection 035.01 shall be credited to the Water Management Account created by Section 42-1760, Idaho Code, for use by the Board for the purposes of Rule 1.(3-18-22)

IDAPA 37.02.03.036 (Reserved)

IDAPA 37.02.03.040 Appointment of Local Rental Pool Committees (rule 40)

01.Board Meetings for Committee Appointments.

The Board may at any regular or special meeting to consider appointing an entity to serve as a local committee to facilitate the lease and rental of stored water. At least ten (10) days prior to the meeting, the entity seeking appointment shall provide to the Director information concerning the organization of the entity, a listing of its officers, a copy of its bylaws and procedures, if applicable, a copy of the proposed local committee procedures, pursuant to which the local committee would facilitate the lease and rental of stored water, together with a copy of each general lease and rental form proposed to be used by the local committee. The local committee procedures must be approved by the Board and must provide for the following:

a.Determination of priority among competing applicants to lease stored water to the rental pool and to rent stored water from the rental pool;(3-18-22)

b.Determination of the reimbursement schedule for those leasing stored water into the rental pool;

c.Determination of the rental price charge to those renting stored water from the rental pool;

d.Determination of the administrative charge to be assessed by the local committee;(3-18-22)

e.Allocation of stored water leased to the bank but not rented;(3-18-22)

f.Notification of the Department and the watermaster of any rentals where stored water will be moved from the place of use authorized by the permit, license, or decree establishing the stored water right;

g.Submittal of applications to rent water from the rental pool for more than five (5) years to the Board for review and approval as a condition of approval by the local committee;(3-18-22)

h.Prevention of injury to other water rights;(3-18-22)

i.Protection of the local public interest, except for applications submitted pursuant to the interim authority provided by Section 42-1763A, Idaho Code;(3-18-22)

j.Consistency with the conservation of water resources within the state of Idaho, except for applications submitted pursuant to the interim authority provided by Section 42-1763A, Idaho Code;(3-18-22)

k.Management of rental pool funds as public funds pursuant to the Public Depository Law, Chapter 1, Title 57, Idaho Code.(3-18-22)

02.Local Committee Procedures. The local committee procedures shall provide that a surcharge of ten percent (10%) of the rental fee charged per acre foot of stored water rented from the rental pool shall be assessed and credited to the revolving development account and the water management account established in Sections 42- 1752 and 42-1760, Idaho Code, in such proportion as the Board in its discretion shall determine. Such moneys, together with moneys accruing to or earned thereon, shall be set aside, and made available until expended, to be used by the Board for the purposes of Rule 1 unless the surcharge is prohibited by statute, compact or inter-governmental agreement.(3-18-22)

03.Review by Director. The Director will review the local committee procedures and submit them along with the Director’s recommendation to the Board. The lease and rental form must receive the Director’s approval. The Board may designate the applying entity as the local committee for a period not to exceed five (5) years. A Certificate of Appointment will be issued by the Board. The Board may extend the appointment for additional periods up to five (5) years, upon written request of the local committee. The Board may revoke a designation upon request of the local committee, or after a hearing pursuant to the promulgated Rules of Practice and Procedure of the Board, if the Board determines that the local committee is no longer serving a necessary purpose or is not abiding by its own approved procedures, these rules or applicable statutes.(3-18-22)

04.Annual Report. The local committee shall report annually on the activity of the rental pool on forms provided by the Board.(3-18-22)

05.Submission of Amendments to Procedures to Board. Amendments to the approved procedures of an appointed local committee which change the amount charged for the rental of stored water shall be submitted to the Board by April 1st of any year. The amendment will be considered approved by the Board unless specifically disapproved at the first regular Board meeting following the amendment action of the local committee. The Board may, upon good cause being determined by the Board, specifically approve of amendments submitted after April 1 of any year.(3-18-22)

IDAPA 37.02.03.041 (Reserved)

37.02.04 Shoshone-Bannock Water Bank Rules

IDAPA 37.02.04.000 Legal Authority

Section 42 -1761Idaho Code, and Article 18.1.3 of “The 1990 Fort Hall Indian Water Rights Agreement” (as defined in Subsection 010.01).(7-1-26)

IDAPA 37.02.04.001 Scope

These rules set the procedures for the Shoshone-Bannock Water Bank to provide for rental of tribal stored water outside the reservation pursuant to Sections 42-1761 through 42-1766, Idaho Code, and operated consistent with IDAPA 37.02.03.040, and Article 7.3 of the Agreement.(7-1-26)

IDAPA 37.02.04.002 Incorporation by Reference

This chapter incorporates by reference Articles 4.1, 4.8, 4.19, 4.22, 4.23 , 4.37, 4.38, 4.43, 4.44, 4.47, 4.49, 4.55, 4.58, 7.3, and 18.1 of “The 1990 Fort Hall Indian Water Rights Agreement” (https://idwr.idaho.gov/wp-content/uploads/ sites/2/adjudication/1990-Fort-Hall-Indian-Water-Rights-Agreement.pdf).(7-1-26)

IDAPA 37.02.04.003 (Reserved)

IDAPA 37.02.04.010 Definitions

In addition to the definitions set forth below, the definitions in the Agreement are incorporated to the extent they are applicable.(7-1-26)

01.Agreement. “The 1990 Fort Hall Indian Water Rights Agreement” as ratified by the Shoshone- Bannock Tribes in June, 1991, and as approved by the United States in Public Law 101-602, 104 Stat. 3061 on November 16, 1990, and by the state of Idaho in 1991 Idaho Session Laws Chapter 228 at 547.(3-31-22)

02.Chairperson. The person selected by the Tribal Rental Pool Committee to be the head of the Committee.(3-31-22)

03.Committee. The Tribal Rental Pool Committee.(3-31-22)

04.Council. The Fort Hall Business Council.(3-31-22)

05.Rental Pool. The Tribal stored water assigned to and rented from the Bank.(7-1-26)

06.Renter. The person or entity renting water from the Rental Pool.(7-1-26)

07.Tribal Stored Water. The storage water accruing to the federal contract storage space identified in Article 7.3.1 of the Agreement.(3-31-22)

IDAPA 37.02.04.011 (Reserved)

IDAPA 37.02.04.025 General

01.Consistency.

The operation of the Bank will be consistent with provisions of the Tribes’ spaceholder contracts with the United States.(7-1-26)

02.Storage Water. Tribal stored water rented from the Rental Pool will be deemed storage water of the renter during the term of the approved rental.(7-1-26)

03.Evaporation Losses. Evaporation losses associated with any Tribal stored water assigned to the Rental Pool will be charged to storage space from which the water is released.(7-1-26)

IDAPA 37.02.04.026 (Reserved)

IDAPA 37.02.04.030 Management

01.Bank Operation.

The Bank will be operated by the Committee in conformity with these rules and the Agreement.(7-1-26)

02.Chairperson Selection. The Committee will select its own Chairperson from the Committee as determined by a majority vote of the Committee. Each term of the Chairperson of the Committee will not exceed four (4) years; however, nothing precludes the same person from being re-elected as Chairperson by the members for more than one (1) term.(7-1-26)

03.Committee Responsibilities. The Committee shall have the following responsibilities:(7-1-26)

a.The Committee will ensure that the Bank is operated in compliance with these rules and the Agreement and will establish such other polices for the operation of the Bank as are consistent with these rules and the Agreement.(7-1-26)

b.The Committee will advise the Council on water banking activities upon request.(7-1-26)

04.Chairperson Duties. The Chairperson will be responsible for such duties as are delegated by the Committee.(7-1-26)

IDAPA 37.02.04.031 (Reserved)

IDAPA 37.02.04.035 Assignments of Tribal Stored Water to the Rental Pool

01.Assignments of Stored Water.

Whenever Tribal stored water is made available for rental, it will be deemed that it is the intention of the Tribes to assign sufficient space to yield the amount of water designated.

Assignments of Tribal stored water to the Rental Pool should identify the reservoir from which the assignment is being made to the Committee.(7-1-26)

02.Control of Assigned Water. All Tribal stored water assigned to the Rental Pool by the Council will be under the control of the Committee for the duration of the term of the assignment to be rented in accordance with these rules and the terms of the assignment.(7-1-26)

03.Return of Unrented Water. Any Tribal stored water assigned to the Rental Pool that is not rented will be returned to the credit of the Tribes.(7-1-26)

IDAPA 37.02.04.036 (Reserved)

IDAPA 37.02.04.040 Rental of Water from the Rental Pool

01.Rental Priorities.

Notice to the Fort Hall Indian Irrigation Project of Tribal stored water assigned to the Rental Pool available for rental will be given in accordance with procedures established by agreement of the Tribes and the Fort Hall Indian Irrigation Project.(7-1-26)

02.Rental Application. A request to rent water will be in writing on a form provided by the Committee, or as a drafted rental agreement provided by the Reservation Watermaster. A copy of the request will be provided to each member of the Committee for consideration of approval and forwarded to the Council.(7-1-26)

03.Content of Approval Rental Agreements. All approved rental agreements will contain the following information:(7-1-26)

a.Name and address of the renter,(3-31-22)

b.Amount of tribal stored water obligated,(3-31-22)

c.The beneficial use,(3-31-22)

d.The rental price,(3-31-22)

e.The legal description of the point of diversion and place of use will be identified by the end of the accounting year for water district 01,(7-1-26)

f.The duration of the approval rental agreement,(7-1-26)

g.The understanding of responsibilities and exposures if reservoir space does not fill at some time during the term of the approved rental agreement.(7-1-26)

h.The understanding that transportation losses occurring between the reservoir and the place of use will be deducted from water delivered under the approved rental agreement.(7-1-26)

IDAPA 37.02.04.041 (Reserved)

IDAPA 37.02.04.050 Rental Payments

01.Rental Price.

The price for rental Tribal stored water from the bank will be set by the Council.

(7-1-26)

02.Management of Rental Income. Rental payments will be made directly to the Council. The Council will be responsible for the management of the rental income. If payments are made over time, and payment is not received by the Council, the Council will promptly notify the Committee to hold back the release of the water until payment is properly received.(7-1-26)

IDAPA 37.02.04.051 (Reserved)

IDAPA 37.02.04.055 Term of Rentals

Any request to rent water below Milner Dam for a period in excess of five (5) years will be subject to negotiations between the Tribes and the Idaho Water Resource Board consistent with IDAPA 37.02.03.040.01.g.(7-1-26)

IDAPA 37.02.04.056 (Reserved)

IDAPA 37.02.04.060 Liability

Nothing in these rules will be construed as modifying or altering any provisions of the Agreement, including but not limited to Article 7.3.12.(7-1-26)

IDAPA 37.02.04.061 (Reserved)

37.03.01 Adjudication Rules

IDAPA 37.03.01.000 Legal Authority

These rules are adopted under the legal authorities of Section 42-1805(8), Idaho Code.(7-1-25)

IDAPA 37.03.01.001 Scope

These rules implement statutes g overning the filing of notices of claim to water rights acquired under state law and the collection of fees for filing notices of claims to water rights acquired under state law in general adjudications, pursuant to Sections 42-1409, 42-1409A, and 42-1414 Idaho Code.(7-1-25)

IDAPA 37.03.01.002 (Reserved)

IDAPA 37.03.01.010 Definitions

01.Amendment Fee.

The additional fee required at the time of filing an amendment to a claim.

02.Aquaculture. The use of water for propagation of fish, shellfish, and any other animal or plant product naturally occurring in an underwater environment.(7-1-25)

03.Claim. A notice of claim to a water right acquired under state law, filed pursuant to Section 42- 1409(4), Idaho Code.(7-1-25)

04.Department. The Idaho Department of Water Resources.(3-18-22)

05.Director. The Director of the Idaho Department of Water Resources. Per Section 42-1701(3), Idaho Code, the Director may delegate authority to perform duties imposed upon the Director by law, including duties described herein, to a Department employee.(7-1-25)

06.Domestic Use. Domestic use as defined in Section 42-1401A(4), Idaho Code.(3-18-22)

07.Flat Fee. The per claim fee for filing a claim, pursuant to Section 42-1414(1)(a), Idaho Code.

08.Late Fee. The additional fee required for the filing of a late claim, pursuant to Section 42-1414(3), Idaho Code.(7-1-25)

09.Public Entity. A state or local government, or any agency, office, or department run by a state or local government.(7-1-25)

10.Public Purpose. Use of water by a public entity for in-stream flows, lake level maintenance, wildlife, aesthetic, or recreation use.(7-1-25)

11.Stock Watering Use. Stock watering use as defined in Section 42-1401A(11), Idaho Code.

(3-18-22)

12.Total Fee. The fee required for filing a claim consisting of the flat fee plus any applicable variable fee and late fee.(7-1-25)

13.Variable Fee. The fee required for filing claims in addition to the flat fee, pursuant to Section 42- 1414(1)(b), Idaho Code.(7-1-25)

14.Water Delivery System. All structures and equipment used for diversion, storage, transportation, and use of water from the water source to and including each place of use.(3-18-22)

15.Water Delivery Organization. An irrigation district, water utility, municipality, or any similar claimant of a water right who diverts water pursuant to the water right claimed and delivers the water to others who make beneficial use of the water.(7-1-25)

IDAPA 37.03.01.011 Abbreviations

01.AF.

Acre foot (feet).(7-1-25)

02.CFS. Cubic foot (feet) per second.(3-18-22)

IDAPA 37.03.01.012 (Reserved)

IDAPA 37.03.01.025 General

01.Requirement to Pay.

All persons filing claims or amendments to claims are required to pay filing fees as set forth by statute and these rules.(7-1-25)

02.Method of Payment. Fees may be paid in cash; or by money order, certified check, cashier’s check, personal check, debit or credit cared, or by electronic payment on-line.(7-1-25)

03.Personal Check. If a personal check is returned unpaid to the Department or the debit or credit card payment is rejected by the financial institution, the claim will be rejected and returned to the claimant. If a personal check in payment of an amendment fee is returned unpaid to the Department or the debit or credit card payment is rejected by the financial institution, the amended claim will be rejected and returned to the claimant, but the original claim will still be in effect.(7-1-25)

04.Government Voucher. Fees payable by government agencies (other than agencies of foreign governments) may be paid by government voucher. If full payment of the voucher is not received within forty-five (45) days of the date the voucher is received, the unpaid voucher will be treated as a returned check pursuant to Subsection 025.03.(7-1-25)

05.Rejection of Claim. Claims submitted without the correct filing fee will be rejected and returned to the claimant along with any fees paid.(7-1-25)

06.Fire-Fighting. A claim is not required for water used solely to extinguish or prevent spreading of an existing fire on private or public lands, structures, or equipment pursuant to Section 42-201(3), Idaho Code. A claim is required for the use of water for firefighting stations and for the storage of water for fighting future fires.

IDAPA 37.03.01.026 (Reserved)

IDAPA 37.03.01.030 Flat Fees

01.Domestic and Stock Water.

A flat fee of twenty-five dollars ($25) is required for each claim for domestic use or stock watering use meeting the definition of domestic use or stock watering use in Section 010. Filing fees for claims for stock water use only are assessed for the first four (4) claims filed by a claimant.(7-1-25)

02.Other Claims. A flat fee of fifty dollars ($50) is required for each claim that does not meet the criteria of Subsection 030.01.(7-1-25)

IDAPA 37.03.01.031 (Reserved)

IDAPA 37.03.01.035 Variable Fees

01.General.

A variable fee in addition to the flat fee is required for each claim not meeting the criteria of Subsection 030.01, unless otherwise stated in these rules.(7-1-25)

02.Per Acre Fee. The variable fee for irrigation use, pursuant to Section 42-1414(1)(b)(i), Idaho Code, is calculated for each acre and fraction thereof rounded to the next whole acre.(7-1-25)

a.A fee of one dollar ($1.00) per acre is required for an irrigation use claim.(7-1-25)

b.The per acre fee is only charged once against a particular acre, regardless of the number of claims filed for the irrigation of that acre or the number of claimants filing claims for the irrigation of that acre.(7-1-25)

c.The per acre fee is payable by the first person to file a claim for the irrigation of a particular acre.

d.The per acre fee for an irrigation project where the canals constructed cover an area of twenty-five thousand (25,000) acres or more, or irrigation districts organized and existing as such under the laws of the state of Idaho, or for beneficial use by more than five (5) water users in an area of less than twenty-five thousand (25,000) acres will be determined based upon the acreage claimed to be irrigated by the project or irrigation district within the boundaries of the project or irrigation district.(7-1-25)

03.Per Kilowatt Fee. The variable fee for power generation pursuant to Section 42-1414(1)(b)(ii), Idaho Code, calculated for each kilowatt and fraction thereof.(7-1-25)

a.A per kilowatt of capacity (manufacturer’s nameplate rating) fee of three dollars and fifty cents ($3.50) per kilowatt, or two hundred fifty thousand dollars ($250,000.00), whichever is less, is required for a power generation claim.(7-1-25)

b.The per kilowatt fee is determined based upon the total generating capacity of all generators in which the water right claimed is used.(7-1-25)

c.The total per kilowatt fee for all claims filed for a single hydropower facility will not exceed the per kilowatt fee for the total generating capacity of all generators in the hydropower facility.(7-1-25)

04.Per CFS Fee. The variable fee for a use other than those identified in Subsections 035.01, 035.02, and 035.03, pursuant to Section 42-1414(1)(b)(iii), (iv), and (v), Idaho Code, calculated for each cfs and fraction thereof to the nearest dollar.(7-1-25)

a.A fee of ten dollars ($10) per cfs is required for an aquaculture use claim. A fee of one hundred dollars ($100) per cfs is required for all other uses except for irrigation, power, and domestic and stock watering uses meeting the definition of domestic and stock watering use in Section 010.(7-1-25)

b.For a claim for more than one (1) public purpose, the per cfs fee will be charged only once per cfs claimed.(7-1-25)

c.If there is a seasonal variation in the number of cfs claimed, the per cfs fee is based upon the maximum number of cfs claimed for any period during a single calendar year.(7-1-25)

05.Claims Including Storage.(3-18-22)

a.The ultimate use of the water stored determines the variable fee for a claim that includes storage. If a claim states a purpose other than diversion to storage, storage, and diversion from storage, the total variable fee will be determined pursuant Subsection 035.06.(7-1-25)

b.For purposes of determining the per cfs fee for the amount of water claimed in af, one (1) cfs equals one and ninety-eight one-hundredths (1.98) af per day of diversion to storage.(7-1-25)

06.Multiple Purpose Claims. If a claim includes more than one (1) purpose of use, the variable fee will be the total of the variable fees required for each purpose of use.(7-1-25)

07.Exceptions. No variable fee is required for a claim or portion of a claim for ground water recharge purposes, fire-fighting purposes, or domestic use or stock watering use meeting the definitions of domestic use and stock watering use in Section 010.(7-1-25)

IDAPA 37.03.01.036 (Reserved)

IDAPA 37.03.01.045 Amendment Fees

When a claimant files an amendment to a claim, if the total fee as recalculated is greater than the total fee paid at the time the claim was originally filed, the amendment fee is the difference between the two (2) amounts. No refund is issued if the total fee as recalculated is less than the total fee paid at the time the claim was originally filed. (7-1-25)

IDAPA 37.03.01.046 (Reserved)

IDAPA 37.03.01.050 Late Fees

01.Late Fee.

A late fee is required for a claim filed after the date set forth in the first commencement notice mailed to the claimant or the claimant’s predecessor in interest pursuant to Sections 42-1414(3), Idaho Code.

02.Waiver. The late fee may be waived by the Director for good cause shown.(7-1-25)

IDAPA 37.03.01.051 (Reserved)

IDAPA 37.03.01.055 Refunds

Fees will not be refunded or returned except where the fee was miscalculated at the time the claim was filed or as expressly provided in these rules.(7-1-25)

IDAPA 37.03.01.056 (Reserved)

IDAPA 37.03.01.060 Sufficiency of Claims

01.Single Claim. Except for claims based on both state law and federal law , a single claim may describe only one (1) water right.(7-1-25)

02.Claim Form. A claim must be filed:(7-1-25)

a.On the Department’s form entitled “Notice of Claim to a Water Right Acquired Under State Law,” or equivalent form approved by the Department, with any applicable attachments.(7-1-25)

b.In accordance with IDAPA 37.01.01, “Rules of Procedure of the Idaho Department of Water Resources,” Section 053, either on paper, digitally in PDF format, or through the Department’s online filing process.

c.With required filing fees pursuant to Sections 030 and 035.(7-1-25)

d.In accordance with the minimum requirements pursuant to Subsection 060.03.(7-1-25)

03.Minimum Requirements. Claims filed on the claim form must contain the following information:

a.Name and mailing address of the claimant and all co-claimants jointly filing the notice of claim to a water right.(7-1-25)

b.Date of priority including month, day and year.(7-1-25)

i.List only one (1) date of priority, the date the water right was established, unless the claim is based upon both state and federal law pursuant to Subsection 060.01.(7-1-25)

c.Source of Water Supply.(7-1-25)

i.For a surface water source, include the official geographic name listed on the United States Geological Survey (USGS) Quadrangle map. If the source of water is not named on the USGS Quadrangle map, describe it as an unnamed water body, such as “unnamed stream.” For surface water sources, also identify the first named stream or river to which the source is tributary. If the water source sinks into the ground before reaching a stream named on the USGS Quadrangle map, describe the “tributary to” stream as “sinks.” If the water source flows into a stream named on the USGS Quadrangle map for part of the year and sinks into the ground for the other part of the year, identify the “tributary to” stream as the named stream on the USGS Quadrangle map.(7-1-25)

ii.Identify only one (1) water source unless the claim is for a single interconnected water delivery system that diverts water from more than one (1) source.(7-1-25)

iii.For a water source under the ground surface, identify the source as “ground water.”(7-1-25)

d.Point of diversion. Describe the location of the point of diversion to the nearest forty (40) acre tract (quarter-quarter section) or government lot number, and include township number (including north or south designations), range number (including east or west designations), section number, and county.(7-1-25)

i.Describe the beginning and ending points of instream flow use, if claimed.(7-1-25)

ii.List the Parcel Identification Number (PIN) as assigned by the county assessor’s office for the parcel where the water is diverted unless no PIN is recorded for the property at the point of diversion.(7-1-25)

iii.List the subdivision name, block number, and lot number, if the point of diversion is located in a platted subdivision where the plat is recorded in the county recorder’s office.(7-1-25)

iv.A claim that includes storage must include the point at which water is impounded (for an on-stream reservoir) or the point at which water is diverted to storage ( for an off-stream reservoir). For a claim where a natural stream channel is used to convey stored water include the point at which water is diverted into a natural channel, and the point where water is rediverted from the natural channel.(7-1-25)

v.List only one (1) point of diversion unless the claim is for a single water delivery system that has more than one (1) point of diversion, or the claim is for a single licensed or decreed water right that covers more than one (1) water delivery system.(7-1-25)

e.Description of Diversion Works.(7-1-25)

i.Describe all major components of the water delivery system, such as dams, reservoirs, ditches, pipelines, pumps, wells, headgates, etc. Include the dimensions of major components which affect the diversion capacity of the water delivery system. Include the depth of wells, the horsepower rating of installed pumps, and whether headgates are automatic or equipped with locks or measuring devices.(7-1-25)

ii.For a claim asserting an accomplished transfer pursuant to Section 42-1425, Idaho Code, include the dates and a description of any changes in use (including change in point of diversion, place of use, purpose of use, and period of use). Describe the diversion works before and after the accomplished transfer.(7-1-25)

iii.For a claim describing an enlargement in use pursuant to Section 42-1426, Idaho Code, identify the water right enlarged (base right) and the date the enlargement occurred. Identify, the enlarged element of the base right including number of acres irrigated, extended season of use, or additional uses of water. Describe the diversion works as originally constructed and as enlarged.(7-1-25) iv,For claim describing an expansion in use pursuant to Section 42-1416B, Idaho Code, identify the water right expanded (base right) and the date the expansion occurred. Identify the expanded element of the base right including number of acres irrigated or additional uses of water. Describe the diversion works as originally constructed and as expanded.(7-1-25)

v.Water delivery organizations must describe the water delivery system up to and including the point where responsibility for water distribution is assumed by entities other than the water delivery organization. (7-1-25)

f.Purpose of Use.(7-1-25)

i. Describe each purpose of use in general terms such as irrigation, industrial, municipal, mining, power, fish propagation, domestic, stock water, etc.(7-1-25)

ii.A storage use must be separated into component purposes with the ultimate use of the stored water indicated. The component purposes of a storage right are: diversion to storage (not applicable to an on-stream reservoir), storage, and diversion from storage (not applicable where the ultimate use is an in-reservoir purpose).

Detention of water in a holding pond, where the pond is not the end use of the water, that can be filled in less than twenty-four (24) hours at the claimed diversion rate is not required to be claimed as storage.(7-1-25)

g.Quantity of Water.(7-1-25)

i. Include the flow rate in cfs or the volume of water to be stored in af per year for each purpose of use, using values with a maximum of three significant figures with no more precision than hundredths for rate and tenths for volume.(7-1-25)

ii. For claims to store water, the maximum af per year may not exceed the storage facility capacity unless the claim includes a description explaining the past practice of filling the storage facility more than once per year, or the claim is for a licensed or decreed right that includes refill. The description of past refill practices may include refills to replace seepage, evaporation, or use from storage.(7-1-25)

iii.The amount of water claimed for each purpose for which water is claimed must not exceed the amount of water beneficially used for the purpose claimed.(7-1-25)

iv.The total amount of water claimed must not exceed the sum total of the quantity listed for each water use, or the total diversion capacity of the diversion system, whichever is less.(7-1-25)

h.Period of Use. A period of use must be listed for each purpose of use and must include the month and day of the first and last day of use.(7-1-25)

i.Description of Non-Irrigation Uses. Fully describe any non-irrigation use Domestic use must describe the number of households served and any irrigation associated with the domestic use. Stock watering use must describe the type of stock and number of each type of stock.(7-1-25)

i. Claims for stock watering use must identify if the stock watering use is in-stream or if water is diverted from the source. In-stream livestock use and diverted stock watering cannot be filed on the same claim form unless the claim is for in-stream livestock use for which a “Notice of Diversion as an Alternative to Instream Stockwater Use” has been filed pursuant to Section 42-113, Idaho Code.(3-18-22)

ii.Describe domestic use for organization camps and public campgrounds, including, but not limited to, the number of camp units, water faucets, flush toilets, showers, and sewer connections. Description of domestic use for organization camps and public campgrounds must also include the average and peak number of individuals using the facility, and the periods when peak or average rates of usage occur.(7-1-25)

j.Place of Use. Describe the location of the place of use to the nearest forty (40) acre tract or government lot and include township number (including north or south designations), range number (including east or west designations), section number, and county. The place of use for in-stream flows for public purposes need not be listed if the place of use is fully described as the stream between the beginning and ending points listed as the points of diversion.( 7-1-25)

i.Except claims for irrigation projects and irrigation districts meeting the criteria described in Subsection 060.03.j.ii. describe, the number of acres irrigated to the nearest whole acre in each forty (40) acre tract or government lot. For irrigation of less than ten (10) acres, acreage must be shown to the nearest one-tenth (0.1) acre.

ii.Claims for an irrigation project where the canals constructed cover an area of twenty-five thousand (25,000) acres or more, or irrigation districts organized and existing as such under the laws of the state of Idaho, or for beneficial use by more than five (5) water users in an area of less than twenty-five thousand (25,000) acres must be accompanied by a map showing the boundaries of the project or irrigation district and must state the total number of acres irrigated within the boundaries of the project or irrigations district. When available, claims should include a digital boundary defined in Section 42-202(B)(2), Idaho Code.(7-1-25)

iii.Include the Parcel Identification Number (PIN) as assigned by the county assessor’s office for the parcel where the water is used unless no PIN is recorded for the property at the place of use.(7-1-25)

k.County of Place of Use. List the county in which the place of use is located.(7-1-25)

l.Authority to Assert Claim. Indicate whether the claimant is the owner of the place of use. If not the owner of the place of use, describe the authority to assert the claim. Unless the claimant is a water delivery organization, include the name and address of the owner of the place of use.(7-1-25)

m.Other Water Rights. Describe any other water right used at the same place and for the same purpose as the water right claimed. Include the existing water right number or claim number, if known.(7-1-25)

n.Remarks. The claimant may submit any additional, relevant information not specifically requested.

If the space provided on the claim form is insufficient, remarks may be set forth on a separate piece of paper and attached to the form. All separate attachments must be specifically referenced in the remarks section of the claim form.(7-1-25)

o.Map. Include an aerial photograph, digital image, or USGS quadrangle map with the claim, unless the claim meets the definition of domestic use or stock watering use as defined in Section 010, or unless the claim is submitted electronically through the Department’s claim filing website. Identify the point of diversion, place of use, and the water delivery system on the aerial photograph, imagery, or USGS quadrangle map.(7-1-25)

p.Basis of Claim. Include the basis of the claim. Include any water right number previously assigned by the Department to the water right claimed. If the claimed water right is based upon a decree that does not have a previously assigned water right number, list the title and date of the decree, the case number, and the court that issued the decree.(7-1-25)

q.Signature. Each claim must be signed by each claimant, submitted electronically by the claimant, or signed and submitted with evidence to show the signatory has authority to sign on behalf of the claimant. Each claimant solemnly swears or affirms under penalty of perjury that the statements contained in the notice of claim are true and correct.(7-1-25)

i.A claim by a corporation, municipality or other organization must be submitted by an officer of the corporation or an elected official of the municipality or an individual authorized by the organization to submit the form. The signatory’s title must be stated with the signature.(7-1-25)

r.Notice of Appearance. An attorney submitting a claim on behalf of their client must include a notice of appearance listing the attorney’s name and address.(7-1-25)

04.Insufficient Claims and Waivers.(7-1-25)

a.A claim filed on the claim form that does not contain the information required by Subsection .03 may be rejected and returned along with any fees paid, unless otherwise provided by these rules.(7-1-25)

b.The Director may waive the minimum information requirements of Subsection 060.03 and accept the claim for good cause shown.(7-1-25)

04.Further Information. Section 060 sets forth minimum requirements for the filing of a claim. The Director may request further information in support of the assertions contained in a claim as part of the investigation of the water system and the claims pursuant to Section 42-1410, Idaho Code.(7-1-25)

IDAPA 37.03.01.061 (Reserved)

IDAPA 37.03.01.065 Rejected and Returned Claims

01.Rejected Claims.

The Department may return a rejected claim, or a copy of a generated claim record for claims filed electronically, to the claimant by ordinary mail at the most recent address shown by Department records, with a notice of rejection that states generally the reason for rejection.(7-1-25)

02.Refiled Claims. Claimants may refile rejected claims with the appropriate fees and appropriate information at any time prior to the deadline for filing the original claim. Claims refiled after the deadline for filing the original claim will be subject to the late fee, unless the claim is refiled within thirty (30) days from the date of mailing the rejected claim by the Department.(7-1-25)

IDAPA 37.03.01.066 (Reserved)

37.03.12 Idaho Department of Water Resources Water Distribution Rules - Water District 34

IDAPA 37.03.12.000 Legal Authority

Section 42-603, Idaho Code.( 7-1-26)

IDAPA 37.03.12.001 Scope

These rules set procedures for the distribution of surface and ground water within Water District 34, the Big Lost River Basin.(7-1-26)

IDAPA 37.03.12.002 (Reserved)

IDAPA 37.03.12.010 Definitions

In addition to the definitions found in Section 42-111 and Section 42-1401A, the following apply:(7-1-26) 01.2-B Gage. The U.S. Geological Survey (USGS) gaging station (13127000) located below Mackay Dam in the SW1/4SW1/4NE1/4, Section 18, Township 7 North, Range 24 East, B.M. The official USGS name is the Big Lost River BL Mackay Res nr Mackay ID gage.(7-1-26)

02.Acre-Foot (AF). A volume of water sufficient to cover one (1) acre of land one (1) foot deep and is equal to three hundred twenty-five thousand eight hundred fifty (325,850) gallons.(7-1-26)

03.Arco Gage. The USGS gaging station (13132500) located near the town of Arco in the SW1/ 4SE1/4SW1/4, Section 17, Township 3 North, Range 27 East, B.M.(7-1-26)

04.Cubic Foot Per Second (CFS). A rate of flow of approximately equal to four hundred forty-eight and eight tenths (448.8) gallons per minute, and also equal to fifty (50) miner’s inches.(7-1-26)

05.Delivery Call. A request from the water user for administration of water rights under the prior appropriation doctrine.(7-1-26)

06.Director. The Director of the Idaho Department of Water Resources (IDWR).(7-1-26)

07.Eastside Canal. The Eastside Canal diverts from the east side of the Big Lost River in the NW1/ 4SE1/4SE1/4, Section 4, Township 5 North, Range 26 East, B.M. and extends southerly to the point it discharges back into the Big Lost River in the NW1/4NW1/4NW1/4, Section 26, Township 4 North, Range 26 East, B.M.

08.Howell Gage. The USGS gaging station (131220500) located above Mackay Reservoir in the SE1/ 4NE1/4NW1/4, Section 30, Township 8 North, Range 21 East, B.M.(7-1-26)

09.Rotation Credit. Water impounded in Mackay Reservoir pursuant to a water right whose source of water is the Big Lost River and which does not include storage as a purpose of use. The impoundment of water as rotation credit is described in Rule Subsection 040.02. For these rules, the term “impounded” refers to rotation credit.

(7-1-26)

10.Storage Water. Water stored in a storage facility, including Mackay Reservoir, pursuant to a water right which includes storage as a purpose of use. For these rules, the term “stored” refers to water owned by the Big Lost River Irrigation District.(7-1-26)

11.Watermaster. The duly elected and appointed state watermaster of Water District 34 who is authorized to perform duties pursuant to Chapter 6, Title 42, Idaho Code.(7-1-26)

12.Water District. An instrumentality of the state of Idaho created by the Director as provided in Section 42-604, Idaho Code, for the purpose of performing the essential governmental function of distribution of water among appropriators under Idaho law.(7-1-26)

13.Water User or Holder of a Water Right. The legal owner or user pursuant to a lease or contract of a right to divert or to protect in place surface or ground water of the state for a beneficial use or purpose. (7-1-26)

IDAPA 37.03.12.011 (Reserved)

IDAPA 37.03.12.025 River Reaches

01.Gage Station or Other Flow Measuring Facility. The Howell (13120500), 2-B (13127000), Leslie (13130300) and Arco (13132500) gages shall be maintained as part of the USGS Cooperative Program, or equivalent measurement program, and operated continuously. Water District 34 shall contribute to the maintenance and operation of these gage sites. All other gages shall be operated when water diversions, other than solely storage in Mackay Reservoir, are being made from the river. The cost of installation, operation and maintenance of these other measuring facilities is the responsibility of Water District 34.(7-1-26)

IDAPA 37.03.12.026 (Reserved)

IDAPA 37.03.12.030 Natural Flows

Natural flow shall be delivered through the natural river channel to the point of diversion of record, except as provided in these rules.(7-1-26)

01.Eastside Canal. The watermaster, with the approval of the Director and after consultation with the Big Lost River Irrigation District, may elect to deliver the natural flow of the river through the Eastside Canal when the following conditions are met:(7-1-26)

a.The full flow of the river, including impounded and stored water, to be delivered downstream of the Moore diversion is not greater than the capacity of the Eastside Canal.(7-1-26)

b.More natural flow water can be delivered to calls for natural flow than could be delivered by using the natural river channel.(3-31-22)

c.No water right is injured.(3-31-22)

d.Measuring devices of a type acceptable to the Director are installed and maintained where the flow leaves the river channel and where it returns to the river channel.(7-1-26)

e.When used for the delivery of natural flow to the Arco diversion, the Eastside Canal is considered to be the river channel for water delivery accounting purposes and the watermaster shall protect the natural flow for delivery to prior water rights. Water rights diverting water from the river channel downstream from the point the Eastside Canal returns to the river channel shall be measured at their point of diversion from the river downstream from the Eastside Canal return.(3-31-22)

f.Conveyance losses in the Eastside Canal, when considered to be the river channel, shall be proportioned between the river flow, the diversions from the Eastside and pumps that inject ground water into the Eastside Canal. The proportioning will be based upon the ratio of total Eastside diversions and injected ground water to the total inflow to the canal.(3-31-22)

02.Alternate Point of Diversion. The watermaster may elect, with the approval of the Director, to deliver natural flow water rights to the alternate point of diversion described in Rule Subsection 030.02.a. below when conditions in Rule Subsections 030.02.b. through 030.02.f. below are met:(7-1-26)

a.This rule may be used to deliver water rights through the Munsey diversion located in the NW1/ 4NW1/4NW1/4, Section 26, Township 4 North, Range 26 East, B.M. as an alternate point of diversion for water rights with a recorded point of diversion at the McLaughlin diversion located in the NE1/4NW1/4SE1/4, Section 12, Township 3 North, Range 26 East, B.M.(3-31-22)

b.The additional delivery losses through the natural channel to the recorded point of diversion for a water right prevents delivery of natural flow to one (1) or more other water rights then calling for water.(3-31-22)

c.The user receives the same amount of water at the field headgate from the natural flow water right that would be delivered to the field headgate had the natural flow right been delivered at the recorded point of diversion.(3-31-22)

d.Delivery of the water right at the alternate point of diversion is limited to the period of time the water right could have been delivered to the recorded point of diversion based upon the natural flow available at any time delivery is called for and the loss of the river channel at the time the alternate point of diversion began to be used for the delivery of this water right.(3-31-22)

e.No water right is injured by the use of the alternate point of diversion.(3-31-22)

f.The owner of the diversion works at the alternate point of diversion and the ditch(es) used to deliver the water to the field headgate from the alternate point of diversion concurs in the use of those facilities.

IDAPA 37.03.12.031 (Reserved)

IDAPA 37.03.12.035 Measuring Devices and Control Works

01.Installation and Maintenance of M easuring Devices and Control Works. Except for domestic and stock water uses from ground water, each water user will install and maintain suitable measuring devices and controlling works at authorized water right points of diversion in accordance with Chapter 7, Title 42, Idaho Code.

These devices will be installed and maintained at the water user’s expense to administer water properly. The Director may prohibit the diversion of water by a water user who refuses or fails to comply with this Section in accordance with Chapter 7, Title 42, Idaho Code.(7-1-26)

02.Access to Diversion Works. Water users shall provide water district staff continual access to all diversion works, measuring devices and control structures, except ground water diversions for small domestic and stock water uses.(7-1-26)

03.Diversions Which May Be Exempt. Diversions below the Chilly Bridge and above Mackay Reservoir that divert water from the Big Lost River, whose place of use is within the flood plain of the Big Lost River as determined by the Director, may be exempt from the requirement for measuring devices and control works with the approval of the Director. Flow rates through exempt diversions will be estimated by the watermaster for accounting purposes by assuming the recorded flow rate of the water right is being diverted.(7-1-26)

IDAPA 37.03.12.036 (Reserved)

IDAPA 37.03.12.040 Allocation of Natural Flow

01.Administration of Surface Water Rights.

Water not diverted or rotated for credit is available for the next in time water right. Natural flow rights are delivered to the point of diversion with no conveyance loss assessment. A natural flow water right delivered through a lateral or canal of a water conveyance entity shall be assessed the conveyance loss for the canal through which the water right is delivered.(3-31-22)

a.All water deliveries must be called for by the water user at least forty-eight (48) hours in advance of the actual water delivery. Water which can be delivered by the watermaster in less than forty-eight (48) hours may be used by the water user.(3-31-22)

b.The water user must notify the watermaster of the water user’s intent to use water as required by Rule Subsection 040.05.(7-1-26)

02.Rotation Credit. Water rights that do not include storage as a purpose of use may not be stored.

Water rights whose source is Big Lost River, with their point of diversion below the Mackay Dam, and which are appurtenant to lands within Big Lost River Irrigation District (BLRID) may, however, be rotated for credit when such practice improves the efficiency of water use as contemplated by the Big Lost River Irrigation District’s plan of operation. Rotation is subject to approval by the Director, the General Provisions for Basin 34, and the following conditions:(7-1-26)

a.Any water credited under such a rotation, if not used in the same irrigation season in which it is credited, shall become storage water of the Big Lost River Irrigation District at the end of the irrigation season.

b.Rotation for credit cannot occur prior to the need for irrigation water on the land, as determined pursuant to these rules, in any year.(3-31-22)

c.Natural flow must be available at the river headgate point of diversion for the water right requesting rotation credit.(3-31-22)

d.The water user must have operable delivery and use facilities and an actual need for the water on the land in the year rotation is sought.(3-31-22)

e.The watermaster may rotate natural flow rights at the beginning of the irrigation season, which would not otherwise be deliverable to their point of diversion, for credit of up to a combined total of three thousand five hundred (3,500) AF if natural flow cannot be delivered to a point of diversion, the watermaster determines rotation credit is needed to make possible the delivery of water rights, and BLRID determines there is room in Mackay Reservoir for rotation credit. The watermaster may release this impounded water from the reservoir to make natural flow rights deliverable to their point of diversion.(7-1-26)

f.Water rotated for credit may only be used on the land to which the water right being rotated is appurtenant. Water rotated for credit may not be marketed except under the provisions of Section 42-222A, Idaho Code.(7-1-26)

g.A water user will forfeit to BLRID all rotation credits accrued when Mackay Reservoir fills, or would have filled except for flood operations, and the natural flow is sufficient to allow delivery to water rights with a priority date of 1905 or junior. If the natural flow does not allow delivery to water rights with a priority date of 1905 or junior after the reservoir fills, the water user will retain the rotation credit. For this rule, Mackay Reservoir will be considered full when the daily mean elevation of the water in the reservoir reaches or exceeds the spillway crest’s mean sea level elevation of 6,066.12 feet.(7-1-26)

h.Water rights being rotated must be identified to the watermaster as being rotated into Mackay Reservoir. Water rights identified as such will have the Mackay Reservoir as the temporary point of diversion during the time rotation is occurring.(3-31-22)

i.The rate of diversion for a water right being rotated for credit combined with other water rights for the same place of use being diverted at the same time cannot exceed the combined diversion limit specified in the listing of water rights.(7-1-26)

03.Assessment of Evaporation and Conveyance Losses to Impounded Water.(3-31-22)

a.Evaporation losses from Mackay Reservoir shall be estimated daily by the watermaster by applying correlated evapotranspiration data and shall be assessed to all impounded water.(3-31-22)

b.Conveyance losses in the natural channel shall be proportioned between natural flow, impounded water, and storage water. The watermaster will proportion the natural flow and impounded water conveyance losses on a river reach basis. (7-1-26)

i.An exception is made for impounded water delivered through the Beck and Evan diversion located in the SW1/4SE1/4SW1/4, Section 11, Township 6 North, Range 25 East, B.M. Conveyance loss for this impounded water will be asses sed the conveyance loss of the 2-B Gage to Leslie Gage reach.(7-1-26)

04.Initiation and Duration of Surface Water Allocation for Irrigation. Any time on or after May 1, a water user can make a delivery call on the natural flow if water can be beneficially used for irrigation. If sufficient natural flow exists to deliver the water right in a usable amount to the water users place of use, the watermaster shall deliver the right. In addition, the Director may allow the diversion of rights or portions of rights for irrigation use from the Big Lost River as early as April 20 and as late as October 31, and from surface water tributaries to the Big Lost River, either before or after the period of use for irrigation described in the water right where:(7-1-26)

a.The water so diverted is applied to a beneficial use resulting in an immediate benefit to growing plants or is necessary to allow performance of an agricultural practice generally accepted in the community, as determined by the Director.(7-1-26)

b.All surface water rights, regardless of priority, unless subordinated to the water right or class of rights being called, existing at the time of diversion that are within their period of use can be satisfied.(7-1-26)

c.The diversion and use of water does not conflict with the public interest as determined by the Director.(7-1-26)

05.Notice to Initiate Delivery. Water users must initiate delivery of their water right(s) by notifying the watermaster that they are ready to put water to beneficial use.(3-31-22)

06.Diversion of Additional Flows. The Director may allow the diversion of surface water in addition to the quantity of surface water described in a water right for irrigation use to be diverted for irrigation of the described place of use where:(7-1-26)

a.The waters so diverted are applied to a beneficial use, as determined by the Director.(7-1-26)

b.All surface water rights, regardless of priority, unless subordinated to the water right or class of water rights being called, existing at the time of diversion that are within their period of use can be satisfied. (7-1-26)

c.The diversion and use of water does not conflict with the public interest as determined by the Director.(7-1-26)

d.Additional flows diverted pursuant to Rule 040.06 are natural flows and will not be assessed as impounded or stored water.(7-1-26)

07.Mackay Dam Minimum By-Pass. Mackay Dam and Reservoir shall be operated to maintain a minimum flow of fifty (50) CFS at the 2-B gage.(3-31-22)

08.Canal or Lateral Delivery. A water user can request the watermaster to investigate if inappropriate delivery of natural flow is occurring on any lateral or canal. This request needs to be accompanied by reasonable evidence that the delivery causes injury to the water user’s natural flow water right(s). In the event the watermaster determines that delivery of natural flow water rights within a lateral or canal is improper, the watermaster will:(7-1-26)

a.Notify the ditch rider and the water delivery entity of the results of his investigation and coordinate efforts to make proper delivery of the natural flow.(3-31-22)

b.If the situation has not been sufficiently resolved within forty-eight (48) hours, the watermaster will notify the Director, who may take all actions authorized by law to remedy the situation.(7-1-26)

IDAPA 37.03.12.041 (Reserved)

IDAPA 37.03.12.055 Water Usage

01.Incidental Stock Water.

A water user holding a water right authorizing irrigation use, but not stock water use, may divert a portion of the quantity described for irrigation use to maintain a reasonable water supply for stock water use. This stock water use needs to utilize the same point of diversion, place of use, and season of use for the irrigation use on the water right.(7-1-26)

02.Winter (Non-Irrigation Season) Stock Water. During the non-irrigation season, from October 16 through April 30 except as modified by Rule 040.04, the storage of water in Mackay Reservoir is superior to all rights from the Big Lost River with points of diversion downstream from Mackay Dam, subject to minimum release.

a.Water users holding water rights authorizing winter stock water use may call for the delivery of the water rights provided that the delivery does not interfere with storage in Mackay Reservoir.(7-1-26)

b.A water user calling for delivery of winter stock water must have access to a diversion point and delivery system to convey the right to the place of use recorded in the water right. If the headgate and delivery system are controlled by an entity other than the water user, the watermaster will only deliver the water with the concurrence of the owner of the headgate and delivery system and then only when such delivery does not constitute unreasonable waste as determined by the Director.(7-1-26)

IDAPA 37.03.12.056 (Reserved)

IDAPA 37.03.12.060 Accounting for Water Delivery

Water diversions shall be accounted for continuously throughout the year by the watermaster.(7-1-26)

IDAPA 37.03.12.061 (Reserved)

37.03.04 Drilling for Geothermal Resources Rules

IDAPA 37.03.04.000 Legal Authority (rule 0)

Section 42-4001 through Section 42-40l5, Idaho Code.(3-30-23)

IDAPA 37.03.04.001 Title and Scope (rule 1)

These rules establish the framework for the drilling, operati on, maintenance, and abandonment of all geothermal wells in the state.(3-30-23)

IDAPA 37.03.04.002 (Reserved)

IDAPA 37.03.04.010 Definitions (rule 10)

For these rules, the following definitions apply.(3-30-23) 01.

Applicant. Any person applying to the Department of Water Resources for a permit for the construction and operation of any well or injection well.(3-30-23)

02.Board. The Idaho Water Resource Board.(3-30-23)

03.BOPE. An abbreviation for Blow Out Prevention Equipment which is designed to be attached to the casing in a geothermal well to prevent a blow out of the drilling mud.(3-30-23)

04.Completion. A well is completed thirty (30) days after drilling operations have ceased unless a suspension of operation is approved by the Director, or thirty (30) days after it has commenced producing a geothermal resource, whichever occurs first, unless drilling operations are resumed before the end of the thirty (30) day period or at the end of the suspension.(3-30-23)

05.Conductor Pipe. The first and largest diameter string of casing to be installed in the well. This casing extends from land surface to a depth great enough to keep surface waters from entering and loose earth from falling in the hole and to provide anchorage for blow out prevention equipment prior to setting surface casing.

06.Department. The Idaho Department of Water Resources.(3-30-23)

07.Director. The Director of the Idaho Department of Water Resources.(3-30-23)

08.Drilling Logs. The recorded description of the lithologic sequence encountered in drilling a well.

09.Drilling Operations. The actual drilling, redrilling, or recompletion of the well for production or injection including the running and cementing of casing and the installation of well head equipment. Drilling operations do not include perforating, logging, and related operations after the casing has been cemented. (3-30-23)

10.Exploratory Well. A well drilled for the discovery or evaluation of geothermal resources.

11.Geothermal Area. The same general land area which in its subsurface is underlain or reasonably appears to be underlain by geothermal resources from or in a single reservoir, pool, or other source or interrelated sources, as such area or areas may be designated from time to time by the Director.(3-30-23)

12.Geothermal Field. An area which contains a well or wells capable of commercial production of geothermal resources.(3-30-23)

13.Geothermal Resource. The natural heat energy of the earth, the energy in whatever form which may be found in any position and at any depth below the surface of the earth, present in, resulting from, or created by, or which may be extracted from such natural heat and all minerals in solution or other products obtained from the material medium of any geothermal resource. Groundwater having a temperature of two hundred twelve (212) degrees Fahrenheit or more in the bottom of a well shall be classified as a geothermal resource. Geothermal resources are found and hereby declared sui generis, being neither a mineral resource nor a water resource but they are also found and hereby declared closely related to and possibly affecting and affected by water and mineral resources in many instances.(3-30-23)

14.Injection Well. Any special well, converted producing well, or reactivated or converted abandoned well employed for injecting material into a geothermal area or adjacent area to maintain pressures in a geothermal reservoir, pool, or other source, or to provide new material or to serve as a material medium therein, or for reinjecting any material medium or the residue thereof, or any by-product of geothermal resource exploration or development into the earth.(3-30-23)

15.Intermediate Casing. The casing installed within the well to seal out brackish water, caving zones, etc., below the bottom of the surface casing. Such casings may either be lapped into the surface casing or extend to land surface.(3-30-23)

16.Material Medium. Any substance including, but not limited to, naturally heated fluids, brines, associated gasses and steam in whatever form, found at any depth and in any position below the surface of the earth, which contains or transmits the natural heat energy of the earth, but excluding petroleum, oil, hydrocarbon gas, or other hydrocarbon substances.(3-30-23)

17.Notice of Intent (NOI). A written statement to the Director that the applicant intends to do work.

18.Observation Well. A small diameter well drilled strictly for monitoring purposes. In no case shall an observation well be completed for production of geothermal resources or for use as an injection well.(3-30-23)

19.Operator. Any person drilling, maintaining, operating, pumping, or in control of any well. The term operator also includes owner when any well is or has been or is about to be operated by or under the direction of the owner.(3-30-23)

20.Owner. The owner of the geothermal lease or well and includes operator when any well is operated or has been operated or is about to be operated by any person other than the owner.(3-30-23)

21.Permit. A permit issued pursuant to these rules for the construction and operation of any well or injection well.(3-30-23)

22.Person. Any individual natural person, general or limited partnership, joint venture, association, cooperative organization, corporation, whether domestic or foreign, agency or subdivision of this or any other state or municipal or quasi-municipal entity whether or not it is incorporated.(3-30-23)

23.Production Casing. The casing or tubing through which a geothermal resource is produced. This casing extends from the producing zone to land surface.(3-30-23)

24.Surface Casing. The first casing run after the conductor pipe to anchor blow out prevention equipment and to seal out all existing groundwater zones.(3-30-23)

25.Suspension of Operations. The cessation of drilling, redrilling, or alteration of casing before the well is officially abandoned or completed. All suspensions must be authorized by the Director.(3-30-23)

26.Waste. Any physical waste including, but not limited to:(3-30-23)

a.Underground waste resulting from inefficient, excessive, or improper use, or dissipation of geothermal energy, or of any geothermal resource pool, reservoir, or other source; or the locating, spacing, constructing, equipping, operating, or producing of any well in a manner which results, or tends to result in reducing the quantity of geothermal energy to be recovered from any geothermal area in the state;(3-30-23)

b.The inefficient above-ground transporting and storage of geothermal energy; and the locating, spacing, equipping, operating, or producing of any well or injection well in a manner causing or tending to cause unnecessary or excessive surface loss or destruction of geothermal energy; (3-30-23)

c.The escape into the open air from a well of steam or hot water more than what is reasonably necessary in the efficient development or production of a well.(3-30-23)

27.Well or Geothermal Resource Well. Any excavation or other alteration in the earth’s surface or crust by means of which the energy of any geothermal resource or its material medium is sought or obtained.

IDAPA 37.03.04.011 (Reserved)

IDAPA 37.03.04.025 Drilling (rule 25)

All wells shall be drilled to protect or minimize damage to the environment, waters usable for all beneficial purposes, geothermal resources, life, health, or property.(3-30-23)

02.Permits and Notices.(3-30-23)

a.Permit to Drill for Geothermal Resources. Any person, owner, or operator who proposes to construct or alter a well to produce or explore for geothermal resources or to construct or alter an injection well shall first apply to the Director for permit. If the owner or operator plans to deepen, redrill, plug, or perform any operation that will in any manner alter the well, an application shall be filed with the Director and written approval must be received prior to beginning work. Application for permit shall be on a form approved by the Department.(3-30-23)

b.Application for Permit to Convert to Injection. If the owner plans to convert an existing geothermal well into an injection well with no change of mechanical condition, an application for permit shall be filed with the Director and written approval must be received prior to beginning injection. Application for permit shall be made on a form approved by the Department.(3-30-23)

c.Amendment of Permit. No well may be owned or operated by any person whose name does not appear on the permit or permit application and no changes in departure from the procedures, location, data, or persons specified on the face of a permit shall be allowed until an amendment to such permit is approved by the Director.

Application for amendment shall be made on a form approved by the Department.(3-30-23)

d.Notice to Other Agencies. Notice of applications, permits, orders, or other actions received or issued by the Director may be given to any other agency or entity which may have information, comments, or jurisdiction over the activity involved. The Director may execute a memorandum of understanding with other agencies to eliminate duplication of applications or other efforts.(3-30-23)

e.No application shall be accepted by the Director until the filing fee required by § 42-4003(5), Idaho Code has been deposited with the Director.(3-30-23)

03.Bonds.(3-30-23)

a.The Director shall require every operator or owner who engages in the construction, alteration, testing, operation, or abandonment of the well to provide to the Director evidence of good and sufficient security in the form and amounts required by Idaho Code § 42-4005(f).(3-30-23)

b.Bonds remain in force for the life of the well or wells and may not be released until the well or wells are properly abandoned, or another valid bond is substituted therefor. Any person who acquires the ownership or operation of any well or wells shall within thirty (30) days after acquisition provide to the Director evidence of good and sufficient security in the form and amounts required by Idaho Code § 42-4005(f).(3-30-23)

04.Well Spacing.(3-30-23)

a.Any well drilled for the discovery and production of geothermal resources or as an injection well shall be located more than one hundred (l00) feet from and within the outer boundary of the parcel of land on which the well is situated, or more than one hundred (l00) feet from a public road, street, or highway dedicated prior to the commencement of drilling. This requirement may be modified or waived by the Director upon written request.

(3 -30-23)

b.For several contiguous parcels of land in one or different ownerships that are operated as a single geothermal field, the term outer boundary line means the outer boundary line of the land included in the field. In determining the contiguity of any such parcels of land, no street, road, or alley lying within the lease or field shall be determined to interrupt such contiguity.(3-30-23)

c.The Director shall approve the proposed well spacing programs or prescribe such modifications to the programs as he deems necessary for proper development giving consideration to such factors as, but not limited to, topographic characteristics of the area, hydrologic, geologic, and reservoir characteristics of the area, the number of wells that can be economically drilled to provide the necessary volume of geothermal resources for the intended use, minimizing well interference, unreasonable interference with multiple use of lands, and protection of the environment.(3-30-23)

d.Directional Drilling. Where the surface of the parcel of land containing one acre or more is unavailable for drilling, the surface well location may be located upon property which may or may not be contiguous.

Such surface well locations shall not be less than twenty-five (25) feet from the outer boundary of the parcel on which it is located, nor less than twenty-five (25) feet from an existing street or road. The production or injection interval of the well shall not be less than one hundred (100) feet from the outer boundary of the parcel into which it is drilled.

Directional surveys must be filed with the Director for all wells directionally drilled.(3-30-23)

05.Casing.(3-30-23)

a.General. All wells shall be cased in such a manner as to protect or minimize damage to the environment, usable ground waters, geothermal resources, life, health, and property. The permanent well head completion equipment shall be attached to the production casing or to the intermediate casing if production casing does not reach the surface. No permanent well head equipment may be attached to any conductor or surface casing alone. The specification for casing strength shall be determined by the Director on a well-to-well basis. All casing reaching the surface shall provide adequate anchorage for blow out prevention equipment, hole pressure control, and protection for natural resources. Sufficient casing shall be run to reach a depth below all known or reasonably estimated groundwater levels to prevent blow outs or uncontrolled flows. The following casing requirements are general but should be used as guidelines in submitting applications for permit to drill. The casing schedule may consist of multiple casing strings (i.e., surface casing, intermediate casing, production casing) provided drilling depth does not exceed ten times the depth of last cemented casing.(3-30-23)

b.Conductor Pipe. A minimum of forty (40) feet of conductor pipe shall be installed. The annular space is to be cemented solid to the surface. A twenty-four (24) hour cure period for the grout must be allowed prior to drilling out the shoe unless additives sufficient, as determined by the Director, are used to obtain early strength. An annular blow out preventer shall be installed on all exploratory wells and on development wells when deemed necessary by the Department.(3-30-23)

c.Surface Casing. The surface casing hole shall be logged with an induction electrical log or equivalent or gamma-neutron log before running casing. This requirement may be waived by the Director. Permission to waive this requirement must be granted by the Director in writing prior to running surface casing. This casing shall provide for control of formation fluids, protection of usable groundwater, and for adequate anchorage for blow out prevention equipment. All surface casing shall be cemented solid to the surface. A twenty-four (24) hour cure period shall be allowed prior to drilling out the shoe of the surface casing unless additives sufficient, as determined by the Director, are used to obtain early strength.(3-30-23)

i.In areas of known high formation pressure, surface casing shall be set at the depth determined by the Director after a study of geologic conditions in the area.(3-30-23)

ii.In areas where subsurface geological conditions are variable or unknown, surface casing shall be in accordance with specifications as outlined in a. above. The casing must be seated through a sufficient series of low permeability, competent lithologic units such as claystone, siltstone, basalt, etc., to ensure a solid anchor for blow out prevention equipment and to protect usable groundwater from contamination. Additional casing may be required if the first string has not been cemented through a sufficient series of such beds, or a rapidly increasing thermal gradient or formation pressures are encountered.(3-30-23)

iii.The temperature of the return drilling mud shall be monitored continuously during the drilling of the surface casing hole. Either a continuous temperature-monitoring device shall be installed and maintained in a working condition or the temperature shall be read manually. In either case, the return temperature shall be entered into the logbook on thirty (30) foot increments.(3-30-23)

iv.BOPE capable of shutting in the well during any operation shall be installed on the surface casing and maintained ready for use at all times. BOPE pressure tests shall be performed by the operator for Department personnel on all exploratory wells prior to drilling out the shoe of the surface casing. The decision to perform BOPE pressure tests on other types of wells shall be made on a well-to-well basis by the Director. The Director must be notified five (5) days in advance of a scheduled pressure test. Permission to proceed with the test sooner may be given verbally by the Director upon request by the operator.(3-30-23)

d.Intermediate Casing. Intermediate casing shall be required for protection against anomalous pressure zones, cave-ins, washouts, abnormal temperature zones, uncontrollable lost circulation zones or other drilling hazards. Intermediate casing strings when installed shall be cemented solidly to the surface or to the top of the casing.(3-30-23)

e.Production Casing. Production casing may be set above or through the producing or injection zone and cemented either below or just above the objective zones. Sufficient cement shall be used to exclude overlying formation fluids from the geothermal zone, to segregate zones, and to prevent movement of fluids behind the casing into possible fresh groundwater zones. Production casing shall either be cemented solid to the surface or lapped into the intermediate casing if run. If the production casing is lapped into an intermediate casing, the casing overlap shall be at least fifty (50) feet, the lap shall be cemented solid, and the lap shall be pressure tested to ensure its integrity.

06.Electric Logging. All wells except observation wells shall be logged with an induction electrical log or equivalent or gamma-neutron log from the bottom of the hole to the bottom of the conductor pipe. This requirement may be modified or waived by the Director upon written request.(3-30-23)

IDAPA 37.03.04.026 Alternative Methods (rule 26)

To accommodate the use of advanced or new technology, and in consideration of methods not specifically addressed in these rules, the Director may consider specific proposals for alternative methods of drilling and constructing geothermal resource wells.(3-30-23)

IDAPA 37.03.04.027 (Reserved)

IDAPA 37.03.04.030 Records (rule 30)

The owner of any well shall keep or cause to be kept a careful and accurate log, core record, temperature logs, and history of the drilling of the well. These records shall be kept in the nearest office of the owner or at the well site and together with all other reports of the owner and operator regarding the well shall be subject to inspection by the Director during business hours. All records unless otherwise specified must be filed with the Director within thirty (30) days of completion of the well.(3-30-23)

02.Records to Be Filed with the Director.(3-30-23)

a.Drilling Logs and Core Record. Include the lithologic characteristics and depths of formations encountered, the depth and temperatures of water-bearing and steam-bearing strata, the temperatures, chemical compositions and other chemical and physical characteristics of fluids encountered as ascertained. The core record shall show the depth, lithologic character, and fluid content of the obtained cores.(3-30-23)

b.Well History. The well history shall describe in detail all significant daily operations carried out and equipment used during all phases of drilling, testing, completion, and abandonment of any well.(3-30-23)

c.Well Summary Report. The well summary report shall accompany the core record and well history reports. It is designed to show data pertinent to the condition of a well at the time of completion of work done.

d.Production Records. The owner of any well producing geothermal resources shall file with the Director on or before the 20th day of each month for the preceding month a statement of production utilized in such a form as the Director may designate. Copies of monthly geothermal energy report forms are available from the Director; however, production data can be submitted on non-department forms if previously approved by the Director.(3-30-23)

e.Injection Records. The owner of any well injecting geothermal fluids or wastewater for any purpose shall file with the Director on or before the twentieth day of each month for the preceding month a report of the injection in such form as the Director may designate. Copies of monthly injection report forms are available from the Director. Injection data may be submitted on non-department forms if previously approved by the Director.

f.Electric Logs and Directional Surveys. When conducted, electric logs and directional surveys shall be filed with the Director within sixty (60) days of completion, cessation of drilling operations, excluding any approved suspension of operations, or abandonment of any well. Like copies shall be filed upon recompletion of any well. Upon a showing of hardship, the Director may extend the time within which to comply for a period not to exceed six (6) additional months.(3-30-23)

IDAPA 37.03.04.031 (Reserved)

IDAPA 37.03.04.035 Blow Out Prevention (rule 35)

01.BOPE. Must be capabl e of controlling the well under known and unknown reservoir conditions.

a.If reservoir conditions are unknown, data loggers shall be installed to continuously monitor and record the following conditions until the well has been drilled to total depth.(3-30-23)

i.Drilling mud temperature (in and out).(3-30-23)

ii.Drilling mud pit level.(3-30-23)

iii.Drilling mud pump volume.(3-30-23)

iv.Drilling mud weight.(3-30-23)

v.Drilling rate.(3-30-23)

vi.Hydrocarbon and hydrogen sulfide gas volume (with alarm).(3-30-23)

b.Annular BOPE with a minimum working pressure of one thousand (1,000) PSI shall be installed on the surface casing. If unusual conditions are anticipated, a BOPE may be required on the conductor pipe.(3-30-23)

c.If drilling mud temperature out reaches one hundred twenty-five (125) Degrees C (Celsius), drilling operations shall cease, drilling mud circulation will continue and the Director must be notified immediately. The operator must obtain the Director’s approval of his proposed course of action prior to resuming drilling operations.

d.When reservoir conditions are known, a gate valve with a minimum working pressure rating of three hundred (300) PSI may be installed on the well head.(3-30-23)

e.When reservoir conditions are known, the temperature of the return mud shall be monitored continuously. Either a continuous temperature monitoring device shall be installed and maintained in working condition or the temperature shall be read manually. In either case, return mud temperatures shall be entered into the logbook for each thirty (30) feet of depth drilled.(3-30-23)

f.The Director may approve BOPE modifications upon written request by the applicant. BOPE requirements under these rules may be modified by the Director depending upon the knowledge of the area. Such requirements may be set forth on the approved application for permit to drill a geothermal well or made in the field by Department personnel monitoring construction of the well.(3-30-23)

IDAPA 37.03.04.036 (Reserved)

IDAPA 37.03.04.040 Injection Wells (rule 40)

01.Construction.

The owner of a proposed injection well or series of injection wells shall provide the Director with such information he deems necessary for evaluation of the impact of such injection on the geothermal reservoir and other natural resources. Such information shall include existing reservoir conditions, method of injection, source of injection fluid, estimates of daily amount of material medium to be injected, zones or formations affected, and analysis of fluid to be injected and of the fluid from the intended zone of the injection. Such information shall be on a form approved or provided by the Director.(3-30-23)

02.Surveillance.(3-30-23)

a.When an owner proposes to drill or modify an injection well or convert a producing or idle well to an injection well, he shall be required to demonstrate to the Director by means of a test that the casing has complete integrity. This test shall be conducted in a method approved by the Director.(3-30-23)

b.To establish the integrity of the annular cement above the shoe of the casing, the owner shall make sufficient surveys within thirty (30) days after injection is started into a well to prove that all the injected fluid is confined to the intended zone of injection. Thereafter, such surveys shall be made at least every two (2) years or more often if necessary. The Director shall be notified forty-eight (48) hours in advance of such surveys in order that a representative may be present if deemed necessary. If in the Director’s opinion such tests are not necessary, he may grant a waiver excepting the operator from such tests.(3-30-23)

c. Department personnel may inspect the well site periodically after the well has been placed on injection. The Director may notify the operator or owner if any remediation work is necessary. Any remediation work must be performed within ninety (90) days of notification by the Director. The Director may rescind approval of the injection well for failure to perform necessary work.(3-30-23)

IDAPA 37.03.04.041 (Reserved)

IDAPA 37.03.04.045 Abandonment (rule 45)

01.Objectives.

The objectives of abandonment are to block interzonal migration of fluids to:

a.Prevent contamination of fresh water or other natural resources;(3-30-23)

b.Prevent damage to geothermal reservoirs;(3-30-23)

c.Prevent loss of reservoir energy; and(3-30-23)

d.Protect life, health, environment, and property.(3-30-23)

02.General Requirements. The following are general requirements which are subject to review and modification for individual wells or field conditions.(3-30-23)

a.A NOI to abandon geothermal resource wells is required to be filed with the Director five (5) days prior to beginning abandonment procedures. A permit to abandon may be given verbally by the Director provided the operator submits a written abandonment request on a form approved by the Director within twenty-four (24) hours of the verbal request.(3-30-23)

b.All wells abandoned shall be monumented with four (4) inch diameter pipe ten (10) feet in length of which four (4) feet shall be above ground. The remainder shall be embedded in concrete. The name, number, and location of the well shall be shown on the monument. Alternate methods of monumentation may be approved by the Director where land surface use indicates the above-described method is not satisfactory.(3-30-23)

c.Heavy drilling fluid or other seal material approved by the Director shall be used to replace any water in the hole and to fill all portions of the hole not plugged with cement.(3-30-23)

d.All cement plugs with a possible exception of the surface plug shall be pumped into the hole from the bottom up through drill pipe or tubing.(3-30-23)

e.All open annuli shall be filled with cement to the surface.(3-30-23)

f.A minimum of one hundred (100) feet of cement shall be emplaced straddling the interface or transition zone at the base of groundwater aquifers.(3-30-23)

g.One hundred (100) feet of cement shall straddle the shoe plug on all casings including conductor pipe.(3-30-23)

h.A surface plug of either neat cement or cement shall be emplaced from the top of the casing to at least fifty (50) feet below the top of the casing.(3-30-23)

i.All casing shall be cut off at least five (5) feet below land surface.(3-30-23)

j.Cement plugs shall extend at least fifty (50) feet over the top of any liner installed in the well.

k.Other abandonment procedures may be approved by the Director if the owner can demonstrate that the geothermal resource, groundwaters, and other natural resources will be protected. Such approval must be given in writing by the Director prior to the beginning of any abandonment procedures.(3-30-23)

l.An abandonment report must be submitted to the Department within five (5) days after the completion of the abandonment.(3-30-23)

IDAPA 37.03.04.046 (Reserved)

IDAPA 37.03.04.050 Maintenance (rule 50)

All well heads, separators, pumps, mufflers, manifolds, valves, pipelines, and other equipment used to produce geothermal resources shall be maintained in good condition in order to prevent loss of or damage to life, health, property, and natural resources.(3-30-23)

02.Corrosion. All surface well head equipment and pipelines and subsurface casing and tubing will be subject to periodic corrosion surveillance to safeguard health, life, property, and natural resources.(3-30-23)

03.Tests. The Director may require such tests or remediation necessary to prevent damage to life, health, property, and to protect geothermal and groundwater resources. Such tests may include, but are not limited to, casing tests, cementing tests, and equipment tests.(3-30-23)

IDAPA 37.03.04.051 (Reserved)

IDAPA 37.03.04.060 Hearings on Denied, Limited, or Conditioned Permit or Other Decisions of

THE DIRECTOR (RULE 60).

Pursuant to Idaho Code §§ 42-4004(c) and 42-4005(d), any applicant who is granted a limited or conditioned permit, or who is denied a permit or any person aggrieved by a decision of the Director may seek a hearing on said action of the Director by serving on the Director written notice and request for a hearing before the Board within thirty (30) days of service of the Director’s decision. Said hearing will be set, conducted, and notice given as set forth in the Rules promulgated by the Board under the provisions of Title 67, Chapter 52, Idaho Code. Any applicant may appeal the decision of the Board to the District Court within thirty (30) days of service of the decision.(3-30-23)

IDAPA 37.03.04.061 (Reserved)

IDAPA 37.03.04.065 Enforcement (rule 65)

01.Enforcement by Director.

When the Director determines that any person is in substantial violation of any provisions of the Geothermal Resources Act (Chapter 40, Title 42, Idaho Code) or of any rule, permit, certificate, condition of approval or order issued or promulgated pursuant to the Geothermal Resources Act, the Director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of Idaho Code §42-1701B. The Director may enforce any provision of the Geothermal Resources Act or any order or regulation issued or adopted pursuant thereto by an appropriate action in the district court. The Director may bring action in the District Court to enjoin noncompliance with any provision of this act.(3-30-23)

IDAPA 37.03.04.066 (Reserved)

37.03.06 Safety of Dams Rules

IDAPA 37.03.06.000 Legal Authority

These rules are adopted pursuant to Chapter 17, Section 42-1714, Idaho Code.(3-30-23)

IDAPA 37.03.06.001 Scope

These rules establish acceptable standards for design and construction, and guidelines for evaluating the safety of new or existing dams. The rules apply to all new construction including existing structures considered for enlargement, alteration, modification, or repair as specifically provided in the rules. The Director will evaluate any deviation from the standards hereinafter stated as they pertain to the safety of any given dam. The standards listed herein are not intended to restrict the application of other sound engineering design principles that will provide for the public safety. Under no circumstances shall these rules be construed to deprive or limit the Director of any exercise of powers, duties and jurisdiction conferred by law, nor to limit or restrict the amount or character of data, or information which may be required by the Director from any owner of a dam or for the proper administration of the

law.(3-30-23)

IDAPA 37.03.06.002 Administrative Appeals

Any person aggrieved by an action of the Director and who has not previously been afforded an opportunity for a hearing on the matter is entitled to a hearing before the Director to contest the action pursuant to the provisions of Section 42-1701A(3), Idaho Code, and the Department’s adopted Rules of Procedure.(3-30-23)

IDAPA 37.03.06.003 (Reserved)

IDAPA 37.03.06.010 Definitions

Unless the context otherwise requires, the following definitions govern these rules.(3-30-23) 01.

Alterations or Repairs. Any activity that may affect the safety or integrity of a dam. Alterations and repairs do not include routine maintenance items.(3-30-23)

02.Appurtenant Structures. Ancillary features (e.g., outlets, tunnels, gates, valves, spillways, auxiliary barriers, etc.) used for operation of a dam, which are owned or for which the owner has responsible control.

03.Artificial Barrier or Embankment. Any structure constructed to impede, obstruct, or store water.

04.Borrowed Fill Embankment. Any embankment constructed of borrowed earth materials, and which is designed for construction by conventional earth moving equipment.(3-30-23)

05.Certificate of Approval. A certificate issued by the Director for all existing dams listing restrictions imposed by the Director, and without which none shall be allowed to impound water.(3-30-23)

06.Conduit. A pipe or other constructed conveyance within a dam designed to release water or liquid in the reservoir.(3-30-23)

07.Core. A zone of relatively low permeability material within an embankment.(3-30-23)

08.Cutoff Trench. An excavation later to be filled with impermeable material during construction of a dam to limit seepage beneath the structure and through the foundation.(3-30-23)

09.Dam. Any artificial barrier together with appurtenant works, which is or will be ten (10) feet or more in height and has or will have an impounding capacity at maximum storage elevation of fifty (50) acre-feet or more. Height of a dam is defined as the vertical distance from the natural bed of the stream or watercourse at the downstream toe of the barrier, as determined by the Director, or from the lowest elevation of the outside limit of the barrier, if it is not across a stream channel or watercourse, to the maximum water storage elevation. Under Section 42- 1711, Idaho Code, the following are not included as regulated dams or are not considered dams for the purposes of Sections 42-1710 through 42-1721, Idaho Code:(3-30-23)

a.Barriers in a canal used to raise or lower water therein or divert water therefrom.(3-30-23)

b.Fills or structures determined by the Director to be designed primarily for highway or railroad traffic.(3-30-23)

c.Fills, retaining dikes or structures less than twenty (20) feet in height, which are under jurisdiction of the Department of Environmental Quality or the Department of Agriculture, determined by the Director to be designed primarily for retention or treatment of municipal, livestock, or domestic wastes, or sediment and wastes from produce washing or food processing plants.(3-30-23)

d.Levees, that store water regardless of storage capacity.(3-30-23)

10.Days. Calendar days including Sundays, Saturdays, and holidays.(3-30-23)

11.Department. The Idaho Department of Water Resources.(3-30-23)

12.Design Evaluation. The engineering analysis required to evaluate the performance of a dam relative to earthquakes, floods, or other site-specific conditions anticipated to affect the safety or operation of the dam, or appurtenant facilities.(3-30-23)

13.Director. The Director of the Department of Water Resources.(3-30-23)

14.Embankment. An artificial barrier constructed of earth, sand, rock, or gravel used to impound water.(3-30-23)

15.Emergency Action Plan (EAP). A written plan with instructions to be taken to reduce the potential for property damage and loss of life in an area affected by a dam failure or uncontrolled release of stored contents.(3-30-23)

16.Enlargement. Any change in or addition to an existing dam which raises or may raise the elevation of the contents impounded by the dam.(3-30-23)

17.Factor of Safety. A ratio of available shear strength to shear stress, required for stability. (3-30-23)

18.Flashboards. Structural members of timber, concrete, steel, or other erosion resistant material placed across a channel or entrance to a spillway to temporarily raise the surface level of the reservoir.(3-30-23)

19.Flood. An increase in water surface elevation due to naturally occurring runoff or other rise in water levels that result in the inundation of areas not normally covered by water. As defined herein floods may be expressed in terms of average annual probability of exceedance, corresponding to values which may be described as flow rate, volume, or elevation (i.e., stage).(3-30-23)

20.Flood Surcharge. A variable volume of water temporarily detained in a reservoir, in the space (or part thereof) that is filled by excess runoff or flood water, above the approved design maximum storage elevation.

Flood surcharge is passed through the reservoir and discharged downstream until the reservoir level has been drawn down to the design maximum storage elevation.(3-30-23)

21.Freeboard. Vertical height between the maximum design water surface elevation and the lowest elevation along the top of the dam. Freeboard can include a provision for variables such as wave height, flood surcharge, settlement, and flashboards.(3-30-23)

22.Hazard Classification. The potential adverse incremental consequences to downstream life, property, and the environment resulting from the release of water or stored content due to dam failure or misoperation of the dam, exclusive of the size or the physical condition of the dam. Hazard Classifications shall be assigned to new and existing dams based on potential adverse incremental impacts in three categories: downstream development, estimated loss of life, and economic losses.(3-30-23)

23.Hydraulics. The study of the conveyance of liquid through pipes and channels.(3-30-23)

24.Hydrology. The study of precipitation, snowmelt, and runoff in relation to land surfaces. (3-30-23)

25.Inflow Design Flood (IDF). The flood specified for designing a dam, or appurtenant facility.

Commonly expressed inflow design flood(s) include peak rate(s) of flow and volume(s) associated with floods having an annual exceedance probability of one percent (1%) (i.e., Q100) and zero point two percent (0.2%) (i.e., Q500), and the PMF (probable maximum flood).(3-30-23)

26.Intermediate Dams. Artificial barriers twenty (20) feet or more in height but less than forty (40) feet or capable of storing one hundred (100) acre-feet of water or more but less than four thousand (4,000) acre-feet.

27.Large Dams. Artificial barriers forty (40) feet or more in height or capable of storing four thousand (4,000) acre-feet or more of water.(3-30-23)

28.Levee. A retaining structure alongside a natural lake which has a length two hundred (200) times greater than its greatest height measured from the lowest elevation of the toe to the maximum crest elevation of the retaining structure.(3-30-23)

29.Lift Construction. Embankment enlargement by raising the elevation of the structure on a continuous or recurring basis. Such practice will be considered under construction until the structure reaches its final crest elevation.(3-30-23)

30.Maximum Water Storage Elevation. The maximum design elevation of the water surface or stored contents which can be impounded by the dam.(3-30-23)

31.Operation Plan. A specific plan that promotes the safe operation of the dam for its intended purpose, and which provides specific limits and procedures for controlling inflow, storage, and/or release of water or slurry.(3-30-23)

32.Owner. Includes any of the following who own, control, operate, maintain, manage, or propose to construct a dam, or reservoir:(3-30-23)

a.The state of Idaho and its departments, agencies, institutions, and political subdivisions; (3-30-23)

b.The United States of America and any of its departments, bureaus, agencies and institutions; provided that the United States of America shall not be required to pay any of the fees required by Section 42-1713, Idaho Code, and shall submit plans, drawings and specifications as required by Section 42-1712, Idaho Code, for information purposes only;(3-30-23)

c.Every municipal or quasi-municipal corporation;(3-30-23)

d.Every public utility;(3-30-23)

e.Every person, firm, association, organization, partnership, business trust, corporation, or company;

f.The duly authorized agents, lessees, or trustees of any of the foregoing; or(3-30-23)

g.Receivers or trustees appointed by any court for any of the foregoing.(3-30-23)

33.Professional Engineer. A person licensed as a professional engineer by the Idaho Board of Licensure of Professional Engineers and Professional Land Surveyors under chapter 12, title 54, Idaho Code. For the purposes of this rule, the use of the term engineer implies a professional engineer consistent with this definition.

34.Release Capacity. The ability of a dam to pass excess water through the spillway(s) and outlet works, i ncluding the contribution from any designed conveyance through or around the dam.(3-30-23)

35.Reservoir. Any basin which contains or will contain the water impounded by a dam.(3-30-23)

36.Small Dams. Artificial barriers ten (10) feet or more in height but less than twenty (20) feet in height and that store fifty (50) acre-feet or more but less than one hundred (100) acre-feet of water.(3-30-23)

37.Spillway. A constructed channel or other approved feature over, through, or around a dam, which is designed to accommodate the net inflow design flood and thus prevent overtopping by the reservoir.(3-30-23)

38.Storage Capacity. The total storage in acre-feet at the maximum design storage elevation.

IDAPA 37.03.06.011 (Reserved)

IDAPA 37.03.06.015 Authority of Representative

When plans, drawings, and specification s are filed by another person on behalf of an owner, written evidence of authority to represent the owner shall be filed with the plans, drawings, and specifications.(3-30-23)

IDAPA 37.03.06.016 (Reserved)

IDAPA 37.03.06.020 Dam Size Classification

01.Size Classification.

The following table defines the height and storage capacity limits used by the Department to classify dams regulated for the benefit of public safety:

02.Determination of Size. The Director shall determine the size classification of a new or existing

dam.(3-30-23)

IDAPA 37.03.06.021 (Reserved)

IDAPA 37.03.06.025 Hazard Classification

01.Hazard Classification. The following table describes categories of hazard used by the Department to classify dams relative to the potential failure consequences estimated for downstream locations. The listed hazard classifications are meant to serve as guidelines for implementing design, construction, and operation criteria, subject to final interpretation by the Director:

Dam Size Classification HeightStorage Capacity Small Dams and Reservoirs Ten (10) feet or more but less than twenty (20) feet and Fifty (50) acre-feet or more but less than one hundred (100) acre-feet.

Intermediate Dams and Reservoirs Twenty (20) feet or more but less than forty (40) feet or One hundred (100) acre-feet or more but less than four thousand (4,000) acre-feet.

Large Dams or Reservoirs Forty (40) feet or more or Four thousand (4,000) acre-feet or more.

Hazard ClassificationDownstream Development Estimated Loss of Life Economic Losses Low Undeveloped property, no permanent or permanently occupied structures for human habitation.

No loss of life Low economic losses generally limited to the owner; low damage to or disruption of transportation, utilities, or other public facilities or values including environmental loss.

02.Determination of Hazard Classification. The Director shall determine the hazard classification of a new or existing dam governed by these rules. Hazard classifications shall be assigned to new and existing dams based on the severity of failure consequences exclusive of the size or the physical condition of the dam. The designated hazard classification, as established by the Director, shall determine the applicable design and operational standards applied to the dam.(3-30-23)

IDAPA 37.03.06.026 (Reserved)

IDAPA 37.03.06.030 Forms

Forms required by these rules are availab le from the Department to interested parties upon request.(3-30-23)

IDAPA 37.03.06.031 (Reserved)

IDAPA 37.03.06.035 Design Reports, Drawings, and Specifications

The following provisions shall apply when submitting plans, drawings, reports, and specifications for dams to the Director for design review and approval, prior to commencing construction.(3-30-23)

01.Submission of Duplicate Plans, Drawings and Specifications. Any owner desiring to construct, enlarge, alter, or repair any dam, shall submit duplicate plans, drawings and specifications prepared by an engineer for the proposed work to the Director with required fees for approval prior to commencing construction.(3-30-23)

02.Applying for and Obtaining Written Approval. Construction of a new dam, or the enlargement, alteration, or repair of such shall not commence until the owner has applied for and obtained written approval of the plans, drawings, and specifications from the Director.(3-30-23)

03.Preparation and Submission of Plans. Plans and drawings shall be of a sufficient scale with an adequate number of views showing proper dimensions, so that the plans and drawings may be readily interpreted and so that the structure and appurtenances can be built in conformance with the approved design. Plans and drawings shall be submitted in both printed and digital format, with the printed version consisting of paper size eleven by seventeen (11 x 17) inches. After reviewing the plans, the Director will notify the owner of any required changes.

04.Information Included with Plans. Plans for new dams or the enlargement, alteration, or repair of such shall include as much of the following information as determined necessary by the Director to adequately describe the enlargement, alteration, or repair and the effect on the existing structure or its appurtenances: (3-30-23)

Significant No concentrated urban development, 1 or more permanent structures for human habitation within the flood zone that are potentially inundated with flood water at a depth of less than two (2) feet.

Loss of life is unlikely to occur Moderate damage to agricultural, commercial, or industrial facilities; moderate damage to or the disruption of transportation, utilities, or other public facilities or values including environmental loss.

High Urban development, or any structure for permanent or temporary human habitation which are potentially inundated with flood water at a depth of two (2) feet or greater.

High probability for loss of life Severe damage to agricultural, commercial, or industrial facilities; damage to or the prolonged disruption of transportation, utilities, or other public facilities or values including environmental loss.

Hazard ClassificationDownstream Development Estimated Loss of Life Economic Losses

a.A topographic map of the project site showing the location of the proposed construction by section, township and range, and location of all borings, test pits, borrow pits and other locations of samples obtained for field or laboratory testing;(3-30-23)

b.A profile depicting the locations, elevations, and depths of borings or test pits, including the visual illustration of logs of bore holes, test pits, or borrow pits;(3-30-23)

c.A cross-section of the structure at maximum section showing elevation and width of crest, slopes of upstream and downstream faces, thickness of riprap, zoning of earth embankment, location of cutoff and bonding trenches, elevations and dimensional heights, size and type of conduits, valves, operating mechanism, and dimensions of all other essential elements deemed to be necessary for properly constructing the approved design;

d.Detailed drawings showing plans, cross and longitudinal sections of appurtenant features such as but not limited to the spillway, training walls, outlet conduits, valves, gates, trash rack, and control works; (3-30-23)

e.A curve or table showing the capacity of the reservoir or tailings impoundment in acre-feet vs. gauge height referenced to a common project datum and the computations used in making such determinations;

f.A curve or table showing the outlet discharge capacity in cubic feet per second vs. gauge height of reservoir storage level, and the computations used in making such determinations;(3-30-23)

g.A curve or table showing the spillway discharge capacity in cubic feet per second vs. gauge height of the reservoir or flood surcharge level above the spillway crest and the computations used in making such determinations;(3-30-23)

h.Detailed drawings of spillway structure(s), including cross-sections of the channel entrance and exit points to and from the spillway and a spillway profile;(3-30-23)

i.Plans for flow measuring devices capable of providing an accurate determination of the flow of the stream above or below the reservoir, and a permanent reservoir or staff gauge near the outlet of the reservoir plainly marked in feet and tenths of a foot referenced to an approved datum; and(3-30-23)

j.Plans or drawings of instruments recommended by the owner or engineer to monitor the performance of the dam to assure safe operation, or as may be required by the Director as deemed necessary to monitor any structure for benefit of public safety regardless of size.(3-30-23)

05.Specifications. The engineer shall prepare specifications that include instructions for construction of the approved design in accordance with accepted engineering and industry standards of care, including provisions for adequate observation, inspection, and control of the work by an engineer during the period of construction.

06.Changes to the Approved Design. The approved design shall not be materially changed without prior written consent of the Director. Design changes which may affect the stability, size, or integrity of the structure, while construction is underway, shall be submitted for the Director’s review and approval. In emergency situations, the owner shall make the required alterations or repairs necessary to relieve the emergency, and subsequently notify the Director of all alterations or repairs implemented.(3-30-23)

07.Inspections . The owner shall allow inspections by the Department to assure the dam and appurtenant structures are constructed in conformance with the approved plans and specifications, or as may be revised by the engineer and approved by the Director if there are unforeseen conditions discovered during site preparation or construction which potentially jeopardize the future integrity and safety of the project works. The Department may request of the owner that certain stages of construction not proceed without inspection and approval by the Director.(3-30-23)

08.Inspection, Examination and Testing of Materials. All materials and workmanship shall be subject to review, inspection, examination, or testing by the Director.(3-30-23)

09.Rejection of Defective Material. The Director may order the owner or engineer to reject defective material. The owner shall correct rejected workmanship and replace rejected material with approved material.

10.Suspension of Work. The Director may order the engineer to suspend any work that is or is likely to be subject to damage by inclement weather conditions.(3-30-23)

11.Responsibility of Engineer. These provisions shall not relieve the engineer of their responsible charge to assure that construction is accomplished in accordance with their approved plans and specifications as mandated by Sections 54-1202(10) and (15), Idaho Code, or to unilaterally suspend work as deemed necessary.

12.Design Report. Owners proposing to construct, enlarge, alter, or repair a dam shall submit an engineering or design evaluation report to accompany the plans and specifications. The engineering report shall include as much of the following information as necessary to present the technical basis for the design and to describe the analyses used to evaluate performance of the structure and appurtenances.(3-30-23)

a.All technical reference(s), equations, calculations, and assumptions used in the design.(3-30-23)

b.Hydrologic data used in determining runoff from the drainage areas, reservoir flood routing pertinent to the project location, and hydraulic evaluations of the outlet(s) and the spillway(s) as may be required for approval of the design plans and specifications.(3-30-23)

c.Investigation of site and subsurface conditions, to include the engineering properties of the foundation area and of each type of material to be encountered or used in the construction of the project works.

d.A stability analysis, including an evaluation of overturning, sliding, slope, and foundation stability;

i.An evaluation of seismic design loads may be included in the stability analysis for all dams as deemed necessary by the Director for benefit of public safety. The evaluation required for the design of large dams or high hazard structures shall use the maximum ground acceleration which could affect the dam. In the absence of a site-specific seismic hazard analysis, the Director may accept seismic analyses that reference published seismic hazard maps which determine seismic loads estimated for seismic events corresponding to a return interval of two percent (2)% in fifty (50) years.(3-30-23)

ii.Seismic analyses may be waived by the Director for new or existing dams if the consequence of failure is demonstrated to be sufficiently low or the critical features of design are demonstrated to be sufficiently conservative to allow minor deformation(s) without releasing the contents of the impounding structure.(3-30-23)

e.Geol ogic description of the dam and reservoir area, including evaluation of landslide potential near the dam;(3-30-23)

f.Engineering properties and the weathering characteristics of the contents proposed for storage in the impoundment, if applicable;(3-30-23)

g.Other information which would aid in evaluating the safety of the design.(3-30-23)

13.Additional Information/Waiver. The Director may require the filing of such additional information which in their opinion is necessary for the benefit of public safety or waive any requirement in these rules if available data demonstrates that it is unnecessary.(3-30-23)

14.Alternate Plans. The Director may accept plans and specifications for dams, or portions thereof prepared for other agencies which are determined to meet the requirements of Rule 35, including but not limited to the following:(3-30-23)

a.An operation plan; or(3-30-23)

b.An emergency action plan to help protect or mitigate the consequences of a dam failure on downstream life and property.(3-30-23)

IDAPA 37.03.06.036 (Reserved)

IDAPA 37.03.06.045 Emergency Action and Operation Plans

An Emergency Action Plan (EAP) is required for all Significant and High Hazard dams. The EAP shall establish emergency procedures for notification and response during unexpected or non-routine events that occur naturally, or in response to mechanical issues, or due to intentional vandalism or terrorism. The EAP may be a component of an Operation Plan that includes comprehensive guidelines and procedures for inspection, operation, maintenance, and monitoring of instruments required to record performance of the structure during normal operating cycles, critical filling, or flood periods, or as may be necessary for evaluating the effects of an earthquake. Before the initial filling of a reservoir, the owner shall file with the Director an EAP for review and approval.(3-30-23)

IDAPA 37.03.06.046 (Reserved)

IDAPA 37.03.06.050 New Dams and Reservoirs

The following criteria shall be used by the D irector as a basis to evaluate the design of new embankment dams and reservoirs. These guidelines are intended for a broad range of circumstances, and engineers should not consider them as a restriction to the use of other sound engineering design principles. Exclusion from these established criteria will be considered by the Director on a case-by-case basis during design review of plans, drawings, reports, and specifications submitted for approval prior to commencing construction. Structures which are or will be constructed of other materials, for example concrete, timber, steel, or combinations thereof shall comply with these criteria as found appropriate by the Director, and with other engineering design methods and construction standards of care approved by the Director.(3-30-23)

01.Embankment Stability. Slope stability analyses shall determine the appropriate upstream and downstream slopes. Unless a discrete slope stability analysis determines otherwise, the embankment slopes of earthen dams shall comply with the following:

a.Embankments shall be designed, constructed, and maintained to assure stability under static loads and prevent instability due to seepage or uplift forces, rapid drawdown conditions, and applied seismic loads.

b.The design analysis shall consider the need for installing filters, including but not limited to chimney drains, blanket drains, or toe drains, to avoid developing saturated conditions and to protect against piping of the embankment fill material. Transmission of seepage through the embankment, abutments, and foundation shall be controlled to prevent internal erosion, the removal of material, or the creation of instability.(3-30-23)

c.The minimum factor of safety for a steady state loading condition shall be one point five (1.5.) The minimum factor of safety for rapid drawdown loading shall be one point two (1.2.) The minimum factor of safety for seismic loading shall be one point zero (1.0.)(3-30-23)

d.Seismic Stability.(3-30-23)

Upstream slope3:1 or flatter Downstream slope2.5:1 or flatter

i.The stability of an embankment subjected to earthquake ground motions may be analyzed by the engineer using either a dynamic response or pseudo-static analyses. Pseudo-static analyses are acceptable for embankment dams and foundations composed of non-liquifiable soils that preclude the generation of excess pore water pressures due to shaking. Otherwise, the stability analysis shall employ a dynamic response method. (3-30-23)

ii.Slope deformation analyses are required for structures that are constructed of cohesionless soils exhibiting fine grain-size gradation and/or on foundations that may be subject to liquefaction.(3-30-23)

iii.The design analysis for regulated dams shall include in the seismic stability analysis peak ground accelerations obtained from Seismic Hazard Maps published by the United States Geological Survey (USGS) using a minimum return interval of 2 percent (2%) probability of exceedance in fifty (50) years, or greater interval, as determined by the Director.(3-30-23)

iv.The design analyses for large and high hazard dams shall include a report or report(s) covering geology, geologic hazard, and seismicity. The report(s) shall identify the location of faults, evaluate landslide potential, and include a history of seismicity. A comparison using deterministic and probabilistic analyses to calculate peak ground acceleration at the dam site may be required for geographic areas of the state showing evidence of seismic faults or faulting, as determined by the Director.(3-30-23)

e.Where in the opinion of the Director, embankment design or conditions warrant, the owner may be required to instrument their embankment or foundation.(3-30-23)

02.Top Width. The minimum top width for any embankment shall be twelve (12) feet to allow safe access by wheeled vehicles or tracked equipment for maintenance or repair.(3-30-23)

03.Cutoff Trenches or Walls. Cutoff trenches shall be excavated into competent foundation material to bear on an approved stratum or zone, as site conditions require and when employed.(3-30-23)

a.The cutoff trench shall be backfilled with suitable material free from organic matter and debris and compacted to the specified moisture and density. The cutoff trench shall extend up the sides of both abutments to the design maximum storage elevation.(3-30-23)

b.Cutoff trenches shall be wide enough to allow the free movement of excavation and compaction equipment. To provide for proper compaction side slopes shall be no steeper than one to one (1:1) for shallow depths up to twelve (12) feet, and no steeper than one and one half to one (1.5:1) for greater depths. Flatter slopes may be required for safety and stability, as determined by the Director.(3-30-23)

c.Concrete cutoff walls may be used in a similar manner as cutoff trenches, with the base firmly entrenched in the underlying foundation material. Where suitable bedrock or suitable foundation material exists, concrete cutoff walls shall be doweled with steel rebar a minimum depth and spacing determined by the engineer necessary to create a structural bond with the underlying foundation. Concrete walls shall have a minimum vertical projection above the foundation surface of three (3) feet, oriented perpendicular to the surface, and shall have a mi nimum thickness of twelve (12) inches. Reinforcement of the concrete may be required in addition to being doweled into suitable foundation material(s).(3-30-23)

04.Impermeable Core Material. Soils used to construct the inner sectional core of an embankment shall consist of relatively impermeable cohesive materials approved by the engineer and compacted in strict accordance with the approved plans and specifications. A minimum ninety-five percent (95%) maximum dry density compacted in accordance with the American Society Testing Materials (ASTM) D-698 is required. The use of other relatively impermeable however non-cohesive material is subject to approval by the Director on a case-by-case basis.

05.Drains. Toe, blanket, or chimney drains consisting of approved free draining material or approved manufactured drainage geotextile shall be installed where necessary to maintain the phreatic line at or near the design level(s) within the embankment.(3-30-23)

a.Filter design for toe, blanket, or chimney drains, or any combination thereof shall be included in the design plans and specifications submitted by the engineer for review and approval by the Director.(3-30-23)

b.Perforated and slotted drainpipes must be four (4) inches diameter or greater and shall be surrounded by permeable drainage material to a distance equal to or greater than the outside pipe diameter. The maximum particle size of the drainage material shall be between one-half (1/2) inch to three-fourths (3/4) inch, or as specified by the design engineer based on the drainage filter analysis. Underdrains and collection pipes must be constructed of noncorrosive material, taking care to ensure slots and perforations are appropriately sized to avoid long-term migration of the drain material into the pipe.(3-30-23)

06.Freeboard. The elevation of the top of the embankment shall be constructed and maintained above the design flood surcharge level, including the vertical height of wind generated waves estimated for the greatest distance of open water measured perpendicular to the major axis of the dam. Camber estimated for post-construction settlement shall be included in the design and incorporated in the construction of the top of the embankment.

a.The minimum freeboard shall be two (2) feet plus wave height as calculated for the design spillway flow capacity during passage of the one percent (1%) flood, or greater.(3-30-23)

07.Riprap. All embankments which are subject to erosion on either the upstream and downstream slope(s) shall be protected using riprap or other approved material. Pipes, cables, brush, tree growth, dead growth, logs, or floating debris are not acceptable substitutes for approved riprap. The engineer, with approval of the Director, shall determine the extent of slope protection as deemed necessary for existing site, seasonal, and operating conditions.(3-30-23)

a.Where rock riprap or other approved material is used for erosion protection on the upstream slope, it shall be placed on an approved thickness of well-graded and free-draining granular bedding material. Riprap or other approved erosion protection material shall extend up the slope a sufficient height.(3-30-23)

08.Outlet Conduits. All reservoirs impounding water shall have an outlet conduit of sufficient capacity to prevent interference with natural streamflow through the reservoir to the injury of downstream appropriators. In addition to any natural flow releases, the outlet conduit should be of sufficient capacity to pass at the same time, the maximum water requirement of the owner. A larger outlet conduit may be required to provide adequate release capacity as determined by the Director. Upon recommendation n of the design engineer, the Director may waive this requirement for off channel reservoirs.(3-30-23)

a.Outlet conduits shall be laid on a firm and stable foundation material to avoid the likelihood of differential settlement or consolidation causing the separation or misalignment of the conduit. Outlet conduits shall be encased on all sides by concrete of approved compressive strength and having a minimum thickness of twelve (12) inches. During construction outlet conduits shall be properly aligned on an established grade and adequately supported to prevent movement or damage caused by placement of concrete or by compaction equipment. (3-30-23)

b.Unless otherwise required, the outlet conduit shall have a minimum inside diameter of twelve (12) inch es. The conduits shall consist of approved material and composition as approved by the Director. Exceptions may be made only where conditions warrant, but in no case shall the reasonable life expectancy of the pipe be less than the design life of the embankment.(3-30-23)

09.Gates and Valves.(3-30-23)

a.Conduits shall be gated on the upstream end to avoid pressurizing the conduit inside the embankment. Designed pressurized conduits shall be fitted with both a guard gate and a control gate or valve.

b.All conduits shall be vented directly behind the gate.(3-30-23)

c.All gate stem pedestals shall be securely founded to prevent future movement.(3-30-23)

d.At least one (1) of the sides of the inlet structure shall be open to allow water to flow into the outlet conduit. The opening shall be covered with a trash rack.(3-30-23)

e.Trash racks should be designed to facilitate cleaning of trash and debris. If fish screens are used, they shall be placed over the trash rack and shall be removable for cleaning or be self-cleaning.(3-30-23)

10.Outlet Controls. Outlet controls shall be installed at a stable location, on the crest or on an elevated platform, or within an enclosure when required, but secured to prevent unauthorized operation. Reservoirs storing water during the winter and subject to severe freezing conditions shall have inclined gate stems or other controlling mechanical or hydraulic features enclosed in a protective sleeve which is buried beneath the upstream slope to suitable depth, to prevent damage or movement caused by ice.(3-30-23)

11.Release Capacity. Based on the size of the dam and the downstream hazard classification assigned by the Director, the release capacity shall equal or exceed the inflow design flood as set forth in the following table.

Where the table specifies an inflow design flood range, the governing inflow design flood shall be determined by the professional engineer in responsible charge of design and IDWR based on a site-specific review of the proposed dam, watershed conditions, and downstream hazard potential. The minimum flow capacity of the emergency spillway(s) shall be sized using the one-percent (1%) rate of flow (i.e., Q100 cfs) calculated for the contributing watershed upstream from the dam, plus two (2) feet of freeboard, plus wave height.

a.All spillways shall be stabilized for the discharge of flow using concrete, masonry, riprap, or sod, if not constructed in resistant rock.(3-30-23)

b.For embankment dams, where site conditions allow, the spillway shall be constructed independent of the embankment. The spillway(s) shall guide the discharge of water away from the embankment.(3-30-23)

c.The minimum base width of an open-channel spillway shall be ten (10) feet, or greater to allow access by mechanical equipment. Siphon pipes or pumps are not acceptable substitutes for an open-channel spillway.

d.The effective flow capacity of spillways shall be undiminished by bridges, fences, pipelines, or other obstructions.(3-30-23)

e.The installation of stop logs or flashboards in the spillway is prohibited unless they are part of an approved design and included as an integral part of an approved operation plan.(3-30-23)

12.Reservoir Site. Prior to filling the reservoir, the site shall be cleared of all woody material, growth or debris that is large enough to lodge in the spillway, or outlet works.(3-30-23)

13.Inspection and Completion Reports. As construction proceeds, it is the responsibility of the engineer to submit test reports (e.g., soil material analyses, density tests, concrete strength tests, etc.) along with periodic inspection and progress reports to the Director.(3-30-23)

Hazard ClassificationDam Size ClassificationInflow Design Flood (IDF)

LowAll SizesQ100 SignificantSmallQ100 IntermediateQ100 to Q500 LargeQ500 HighSmallQ100 to Q500 Intermediate Q500 LargeQ500 to PMF

a.Upon completion of construction the owner or their engineer shall provide the Director a written narrative account of all items of construction. Record drawings (i.e., as-builts or as-constructed drawings) and revised specifications shall be submitted to the Director to accurately reflect the completed project works.(3-30-23)

b.The engineer, acting on behalf of and representing the owner, shall certify that the construction, reconstruction, enlargement, replacement, or repair of the embankment and appurtenances was completed in accordance with the record drawings and specifications.(3-30-23)

IDAPA 37.03.06.051 (Reserved)

IDAPA 37.03.06.060 Existing Dams and Reservoirs

All dams and reservoirs regulated by the Department shall be op erated and maintained to retain the existing structural dimensions, to resist deformations or movement, and to maintain the hydraulic capacity of the outlet works, spillway, and other discharge features as designed and constructed, or as otherwise required by these rules.(3-30-23)

01.Analyses Required. The analyses required by Rule 035 shall apply to all existing dams when the Director specifically requires the analyses. Where applicable, non-embankment dams shall comply with the following criteria.(3-30-23)

a.Every dam shall have an overflow spillway with a capacity that will pass an inflow design flood of one percent (1%) probability of occurrence (i.e., Q100) or more, with the reservoir or the impoundment full to the spillway crest while maintaining the freeboard required by Rule 050.06.(3-30-23)

b.The Director may lessen or waive the spillway requirement for dams that demonstrate out-ofstream (off-channel) storage.(3-30-23)

c.The release capability or discharge capacity can include the combined rates of flow for multiple appurtenances; for example, spillways, outlets, diversion facilities, or other constructed conveyance features.

Approved operating procedures which can be shown to utilize upstream storage, diversion, and reservoir flood routing to reduce flood runoff events may also be considered. The remainder of the required release capacity, if any, may be met by the following:(3-30-23)

i.Reconstruction, enlargement or addition of spillways, outlets, diversion facilities, or other constructed conveyance features.(3-30-23)

ii.A showing acceptable to the Director that potential failure of the dam during a flood of the specified magnitude described in Rule 050.11 would be incrementally small in comparison to the flood being considered, and that the release of reservoir would not substantially increase downstream damages to life and property which are anticipated to result from any natural flood equal to or exceeding that magnitude.(3-30-23)

iii.A showing acceptable to the Director that limiting physical factors unique to the project site exist that prevent construction of a spillway or other release capability mechanisms during a flood of the specified magnitude described in Rule 050.11, and provided the owner implements storage operational procedures, or restrictions, or provides for emergency warning to protect life and property.(3-30-23)

d.Seismic loads shall be evaluated and applied to dam stability. The Director may require that evaluation of seismic loads for large and high hazard structures shall use the maximum ground motion/acceleration generated by the maximum credible earthquake. For any existing dam, the Director may accept maximum ground motion/acceleration corresponding to specified return intervals using a probabilistic evaluation of earthquake history in accordance with USGS hazard maps using a minimum return interval of 2 percent (2%) probability of exceedance in fifty (50) years, or greater interval, as determined by the Director.(3-30-23)

e.The Director may accept existing studies relative to requirements of Rule 060.01.a. and Rule 060.01.d., if the Director determines the information provided fulfills the requirements of the rules.(3-30-23)

f.The Director may allow the owner of an existing dam a compliance period to complete structural modifications or implement other improvements deemed necessary to provide the necessary hydraulic capability.

g.The Director may allow the owner of an existing dam a compliance period to complete structural modifications or implement other improvements deemed necessary to resolve seismic stability or safety concerns.

h.Within thirty (30) days after completing the analyses required in Rules 060.01.a. or 060.01.d., the owner of an existing dam found deficient by either analyses shall file with the Director a plan and schedule for mitigating the deficiency.(3-30-23)

02.Other Requirements.(3-30-23)

a.Routine maintenance items include the following:(3-30-23)

i.Eradication of rodents and filling animal burrows;(3-30-23)

ii.Removal of vegetation and debris from the dam;(3-30-23)

iii.Restoring original dimensions of the dam by the addition of fill material;(3-30-23)

iv.Addition of bedding or riprap material which will not increase the height or storage capacity;

v.Repair or replacement of gates, gate stems, seals, valves, lift mechanisms or vent pipes with similar equipment; or(3-30-23)

vi.Repair or replacement of wingwalls, headwalls or aprons including spalling concrete.(3-30-23)

b.The following are not routine maintenance items and are subject to design review and approval prior to commencing construction:(3-30-23)

i.Alteration or modification of embankment slopes;(3-30-23)

ii.Replacement, reconstruction, or extension of outlets;(3-30-23)

iii.Foundation stabilization;(3-30-23)

iv.Filter or drain construction or replacement;(3-30-23)

v.Spillway size alteration or modification;(3-30-23)

vi.Installation of instrumentation or piezometers; or(3-30-23)

vii.Release capability or reservoir storage modification.(3-30-23)

c.Items not specifically described in Rules 060.02.a. and 060.02.b. will be determined by the Director as either routine or non-routine upon receipt of a written request from the owner or their representative seeking such a determination.(3-30-23)

d.Where riprap is required to prevent erosion and to maintain a stable embankment, pipes, cables, brush, tree growth, logs, or floating debris are not acceptable substitutes for rock riprap and granular bedding material. Dams or portions thereof which are stable without riprap, are not required to have riprap.(3-30-23)

e.Upon completion of reconstruction of a dam or feature of a dam included in Rule 060.02.b., the owner or their engineer shall provide the Director a written narrative account of all items of work. Record drawings and revised specifications shall be submitted to the Director if the completed project has been substantially changed from the plans and construction specifications originally approved.(3-30-23)

f.Upon request, the owner of every dam shall provide their name and address to the Director and shall advise the Director of future changes in ownership. If the owner does not reside in Idaho, the owner shall provide the name and address of the person residing in Idaho who is responsible for the operation, maintenance, and repair of the dam.(3-30-23)

IDAPA 37.03.06.061 (Reserved)

37.02.01 Comprehensive State Water Plan Rules

IDAPA 37.02.01.000 Legal Authority (rule 0)

The Board promulgates these rules pursuant to authority provi ded by Sections 42-1734D and 42-1734A, Idaho Code.

IDAPA 37.02.01.001 Scope (rule 1)

The purpose of these rules is to establish the procedures and notice used by the Idaho Water Resource Board for designating a waterway as an interim protected river.(3-31-22)

IDAPA 37.02.01.002 (Reserved)

IDAPA 37.02.01.010 Definitions (rule 10)

01.Alteration.

Any activity using mechanized equipment that moves or overturns gravel or earth.

02.Board. The Idaho Water Resource Board.(3-31-22)

03.Hydropower Project. Any development that uses a flow of water as a source of electrical or mechanical power, or that regulates the flow of water for the purpose of generating electrical or mechanical power, including powerhouses, dams, water conduits, transmission lines, water impoundments, roads, and other appurtenant works and structures.(3-31-22)

04.Natural River. A waterway that possesses outstanding fish and wildlife, recreation, geologic or aesthetic values, is free of substantial existing man-made impoundments, dams or other structures, and has riparian areas that are largely undeveloped, although accessible in places by trails and roads.(3-31-22)

05.Recreational River. A waterway that possesses outstanding fish and wildlife, recreation, geologic or aesthetic values, and might include some man-made development within the waterway or within the riparian area of the waterway.(3-31-22)

06.Riparian Area. That area within one hundred (100) feet of the mean highwater mark of a waterway.(3-31-22)

07.Stream Bed. A natural water course of perceptible extent with definite bed and banks that confines and conducts the water of a waterway that lies below and between the ordinary high water mark on either side of that waterway.(3-31-22)

08.Waterway. A river, stream, creek, lake or spring, or a portion thereof, and does not include any tributary thereof.(3-31-22)

IDAPA 37.02.01.011 (Reserved)

IDAPA 37.02.01.015 Interim Protected Rivers (rule 15)

01.Board Initiative.

The board may consider a waterway for designation as an interim protected river upon its own initiative.(3-31-22)

02.Petitions. The board will accept petitions requesting the board to designate a waterway as an interim protected river only from a state agency. The acceptability of a petition requiring clarification or corrections shall be determined by the director.(3-31-22)

03.Form. Petitions shall be in writing, signed by the agency head, and shall describe the waterway, or portion thereof, requested to be designated as an interim protected river.(3-31-22)

04.Filing. No petition will be considered by the board at a board meeting unless it is filed at least thirty (30) days prior to such board meeting.(3-31-22)

05.Board Agenda. The board agenda will include time for representatives of the petitioning agency to describe the agency’s reasons for seeking interim protection for that waterway.(3-31-22)

06.Board Determination. At a board meeting the board shall determine whether the nominated waterway merits designation as an interim protected river. The determination shall be based on a finding that:

a.It is probable that the waterway would be designated a protected river in the comprehensive state water plan; and(3-31-22)

b.Interim protected river status is necessary to protect the values that would support such waterway’s designation as a protected river in a comprehensive state water plan.(3-31-22)

IDAPA 37.02.01.016 (Reserved)

IDAPA 37.02.01.025 Petitions to Exempt Specific Projects from Interim Protected Rivers

(RULE 25).

01.Petitions to Exempt Specific Action or Projects. Petitions proposing exemption for a specific project from the interim protected river designation shall be in writing, signed by the owner, operator, or designated official of the petitioner, and describe the proposed action or project and its location. No petition will be considered by the board at a board meeting unless filed at least thirty (30) days prior to such board meeting.(3-31-22)

02.Board Agenda. The board agenda will include time for the petitioner or his representative to describe how the proposed action or project would not significantly impair the values supporting a waterway’s designation as an interim protected river. The burden shall be on the petitioner to show that the proposed action will not impair those values supporting a waterway’s designation as an interim protected river.(3-31-22)

IDAPA 37.02.01.026 (Reserved)