(1)The intent of this section is to conserve ground water resources and secure the maximum use and benefit from surface water resources in Idaho by requiring that permits to appropriate ground water to irrigate land with surface water rights for irrigation be conditioned to require use of available surface water as the primary irrigation supply and use of ground water as a supplemental water supply when surface water is not available. Surface water rights include decreed, licensed, claimed, or permitted water rights diverted from surface sources, such as springs, streams, rivers, drains, or lakes.
(2)When the department of water resources receives an application to appropriate ground water, as defined in section 42-230 (a), Idaho Code, for irrigation purposes, it shall determine whether
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(1) The intent of this section is to conserve ground water resources and secure the maximum use and benefit from surface water resources in Idaho by requiring that permits to appropriate ground water to irrigate land with surface water rights for irrigation be conditioned to require use of available surface water as the primary irrigation supply and use of ground water as a supplemental water supply when surface water is not available. Surface water rights include decreed, licensed, claimed, or permitted water rights diverted from surface sources, such as springs, streams, rivers, drains, or lakes.
(2) When the department of water resources receives an application to appropriate ground water, as defined in section 42-230 (a), Idaho Code, for irrigation purposes, it shall determine whether the proposed place of use:
(a) Has appurtenant surface water rights for irrigation purposes; or
(b) Is entitled to distribution of surface water from an irrigation district, canal company, ditch users association, or other water delivery entity for irrigation purposes and whether the entity’s distribution system is capable of delivering the water to the land.
(3) When the department finds the proposed place of use meets the criteria of subsection (2) of this section and the requirements of section 42-203A (5), Idaho Code, have been met, the department shall condition the permit for irrigation from ground water to:
(a) Require use of all surface water rights identified in subsection (2) of this section when irrigating the proposed place of use and limit the use of ground water to those times when the surface water supply is not reasonably sufficient to irrigate the place of use or is not available due to drought, curtailment by priority, or the seasonal startup and shutoff or maintenance schedules for surface water deliveries; and
(b) Prohibit the diversion and use of ground water for irrigation purposes if use of surface water is intentionally discontinued or reduced or is not deliverable due to nonpayment of annual assessments levied by the water delivery entity.
(4) The department may elect to not condition a permit pursuant to subsection (3) of this section if the department finds that:
(a) The appurtenant surface water rights for irrigation are not distributed by a water delivery entity identified by subsection (2)(b) of this section and the applicant demonstrates that the use of surface water for irrigation is not necessary to protect the local public interest or to conserve water resources in the state of Idaho; or
(b) The application is submitted in connection with a proposed or approved mitigation plan or ground water management plan that allows the diversion of ground water to irrigate land with appurtenant surface water rights.
(5) This section, and any determinations by the department concerning the appropriation of ground water as provided in this section, shall be binding upon the applicant and the applicant’s successors and assigns in any proceedings before all other state and local governmental entities.