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Show 734 GROUND WATER RIGHTS IN SELECTED STATES Appropriability of Ground Water Ground water rights, except for domestic and drainage purposes, may be acquired only by appropriation. Until 1963 they could have been perfected either by means of diversion and application to beneficial use (the so-called constitutional method) or by following the statutory procedure. The 1963 amendment, however, restricts ground water appropriation to the statutory method;301 its validity in this regard has been upheld by the Idaho Supreme Court.302 Appropriation Procedure, Including Critical Areas The first step in appropriating ground water is to apply to the Department of Reclamation for a permit to make an appropriation.303 If the locality in which the desired appropriation is to be made has not been designated as a critical ground water area, the State Reclamation Engineer shall issue a permit in accordance with the provisions governing applications to appropriate waters of the State, provided the application otherwise meets the requirements of those provisions.304 A critical ground water area is any ground water basin or portion thereof that does not have sufficient ground water to provide a reasonably safe supply for irrigation of cultivated lands or other uses in the basin at the then current rates of withdrawal, or rates of withdrawal projected by consideration of valid and outstanding applications and permits, as may be determined and desig- nated, from time to time, by the State Reclamation Engineer.305 If the area has been designated as a critical ground water area, the State Reclamation Engineer may deny the application if, based upon investigation or other information, he has reason to believe that there is insufficient water 301 Id. § 42-229. " * * * provided, however, that in the event an appropriation has been commenced by diversion and application to beneficial use prior to the effective date of this act it may be perfected under such method of appropriation." Id. 302State ex rel. Tappan v. Smith, 92 Idaho 451, 444 Pac. (2d) 412, 417 (1968), in which the court said it "does not deny the right to appropriate water, but regulates the method and means by which one may perfect a right to the use of such water. The regulation is in accord with Article 15, Sections 1 and 3, of Idaho's Constitution, and with I.C. § § 42-103 and 42-226." Idaho Const, art. XV, § 3, is discussed in chapter 1 at note 85. 303 Idaho Code Ann. § 42-202 (Supp. 1969). 304Id. § 42-233a, referring to § § 42-203 and -204. 305Id. § 42-233a. If an area is designated a critical ground water area, the State Reclamation Engineer must hold a public hearing in the area concerned to apprise the public of such designation and the reasons therefore. Should the State Reclamation Engineer desire to remove the designation of a critical ground water area or modify the boundaries of the area, he must likewise hold a public hearing. Id, The legislation regarding critical ground water areas was applied in State ex rel Tappan v. Smith, 92 Idaho 451, 444 Pac. (2d) 412, 417 et seq. (1968). |
