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Committee holds beneficial-use examination rulemaking after questions about defining "beneficial use"
Summary
Lawmakers delayed action on revisions to the department's beneficial-use examination rules, citing concerns about the lack of a statutory definition of "beneficial use" and the need for staff follow-up.
The Idaho Senate Resources and Environment Committee voted to hold pending beneficial-use examination rules for further review after lawmakers raised questions about how the rules treat the term "beneficial use" and related measurement changes.
The Department of Water Resources presented the pending beneficial-use examination chapter (docket 3703022401), which sets standards for certified water-right examiners, reporting requirements, measuring devices and license fees. Eric Boe, Water Compliance Bureau Chief and rules review officer, said the department did not change fees but reorganized and clarified definitions and standards. The pending text allows use of 50 years of climate data for commercial snowmaking permits when stakeholders requested that approach and the department said that aligns with its common practice.
Sen. Harris asked about a change from cubic feet to gallons in the rule text; Lehi Hummer, water rights section manager, said the unit change was made "to be consistent with the water appropriation rules which were adopted last year." Sen. Guthrie pressed the issue of whether the rules define "beneficial use." Shelly Keane, deputy director at the Department of Water Resources and a former water-rights section employee, answered that "there is not a definition of beneficial use in statute" and that the department has relied on case records and director discretion to determine what constitutes beneficial use in particular proceedings. Keane noted the department maintains a list of common beneficial uses in its water-rights database, such as irrigation, domestic, stock water, commercial and industrial uses.
Committee members stressed the need for clarification. Sen. Harris said the committee should work with the department to locate any statutory or judicial definitions if they exist. After discussion, Sen. Van Orden moved to hold docket 3703022401 "at the call of the chair"; Sen. Guthrie seconded. The motion passed by voice vote.
The department had published the proposed rule Oct. 2, 2024; one public comment was received and the department did not change the pending rule as a result of that comment. The pending rule as submitted reduced total word count by 777 words (17% reduction) and reduced restrictive word count by 43 words (45% reduction). Committee members asked the department to follow up with references to any statute or case law that defines "beneficial use."
