IDAPA 20.03.17
Persons with encroachments (including but not limited to marinas, community docks, non-navigational encroachments, and oversized private docks) occupying state-owned lakes and riverbeds.
This rule sets procedures for issuing leases on state-owned beds of streams, rivers, and navigable lakes and ensures the state is compensated for the use of the beds of navigable waterways.
This rule implements the following statutes passed by the Idaho Legislature:
Public Lands -
Department of Lands:
Idaho Administrative Procedure Act:
300 N. 6th Street, Suite 103
P.O. Box 83720
Boise, Idaho 83720-0050
Phone: (208) 334-0200
Fax: (208) 334-3698
Email: rulemaking@idl.idaho.gov
https://www.idl.idaho.gov/
This rule chapter will be reviewed in compliance with Section 67-5292, Idaho Code, and in accordance with the 8-year rule review schedule linked here.
20.03.17 – Rules Governing Leases On State-Owned Navigable Waterways
| 000. Legal Authority. | 3 |
|---|---|
| 001. Scope. | 3 |
| 002. -- 009. (Reserved) | 3 |
| 010. Definitions. | 3 |
| 011. -- 019. (Reserved) | 4 |
| 020. Applicability. | 4 |
| 021. -- 024. (Reserved) | 5 |
| 025. Policy. | 5 |
| 026. -- 029. (Reserved) | 6 |
| 030. Lease Application, Fee, And Procedure. | 6 |
| 031. -- 034. (Reserved) | 6 |
| 035. Rental. | 6 |
| 036. Yearly Reporting. | 6 |
| 037. -- 039. (Reserved) | 6 |
| 040. Late Payment. | 6 |
| 041. -- 044. (Reserved) | 7 |
| 045. Appraisal Procedures. | 7 |
| 046. -- 049. (Reserved) | 7 |
| 050. Lease Amendment. | 7 |
| 051. -- 054. (Reserved) | 7 |
| 055. Assignments, Assignment Fee. | 7 |
| 056. -- 059. (Reserved) | 7 |
| 060. Cancellation And Additional Remedies. | 7 |
| 061. -- 064. (Reserved) | 8 |
| 065. Bond. | 8 |
| 066. -- 074. (Reserved) | 8 |
| 075. Other Rules And Laws. | 8 |
| 076. -- 999. (Reserved) | 8 |
This Chapter is adopted under the legal authorities of Title 58, Chapter 1, Idaho Code, Sections 58-104(6), 58-104(9), and 58-105; Title 58, Chapter 3, Idaho Code, Sections 58-304 through 58-312; Title 58, Chapter 6, Idaho Code; Title 58, Chapter 12; and Title 67, Chapter 52, Idaho Code. (3-30-23)
01. Scope. These rules govern the issuance of leases on state-owned navigable waterways. While the State asserts the right to issue leases for all encroachments, navigational or non-navigational, upon, in or above the beds or waters of navigable lakes and rivers, nothing in these rules may be construed to vest in the state of Idaho any property, right or claim of such right to any private lands lying above the natural or ordinary high water mark of any navigable lake or river. (3-30-23)
02. Rules Applicable To All Existing And Proposed Uses And Encroachments. These rules apply to all existing and proposed uses and encroachments, whether or not authorized by permit under the Lake Protection Act, Title 58, Chapter 13, Idaho Code, or the Stream Channel Protection Act, Title 42, Chapter 38, Idaho Code. These rules provide that a lease may be required in addition to existing permits. See Section 020 of these rules for information about exceptions to lease requirements. (3-30-23)
01. Board. The Idaho State Board of Land Commissioners or its designee. (3-30-23)
02. Commercial Marina. A commercial navigational encroachment whose primary purpose is to provide moorage for rental or for free to the general public. (3-30-23)
03. Commercial Navigational Encroachment. A navigational encroachment used for commercial purposes. (3-30-23)
04. Community Dock. A structure that provides private moorage for more than two (2) adjacent littoral owners, or other littoral owners possessing a littoral common area with littoral rights including, but not limited to, homeowners' associations. No public access is required for a community dock. (3-30-23)
05. Department. The Idaho Department of Lands or its designee. (3-30-23)
06. Director. The director of the Idaho Department of Lands or his designee. (3-30-23)
07. Dock Surface Area. Includes docks, slips, piers, and ramps and is calculated in square feet. Dock surface area does not include pilings, submerged anchors, or undecked breakwaters. (3-30-23)
08. Encroachments in Aid of Navigation. Includes docks, piers, jet ski and boat lifts, buoys, pilings, breakwaters, boat ramps, channels or basins, and other facilities used to support water craft and moorage on, in, or above the beds or waters of a navigable lake, river or stream. The term "encroachments in aid of navigation" is used interchangeably with "navigational encroachments." (3-30-23)
09. Encroachments Not in Aid of Navigation. Includes all other encroachments on, in, or above the beds or waters of a navigable lake, river or stream, including landfills, bridges, utility and power lines, or other structures not constructed primarily for use in aid of navigation. It also includes float homes and floating toys. The term "encroachments not in aid of navigation" is used interchangeably with "non-navigational encroachments." (3-30-23)
10. Market Value. The most probable price at a specified date, in cash, or on terms reasonably equivalent to cash, for which the property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. (3-30-23)
11. Natural or Ordinary High Water Mark. The line that the water impresses upon the soil by covering it for a sufficient period of time to deprive the soil of its vegetation and destroy its value for agricultural purposes. If, however, the soil, configuration of the surface, or vegetation has been altered by man's activity, the
ordinary high water mark is located where it would have been if the alteration had not occurred. (3-30-23)
12. Person. An individual, corporation, partnership, limited liability company, association, trust, unincorporated organization or other legal entity qualified to do business in the state of Idaho and any federal, state, tribal, or municipal unit of government. (3-30-23)
13. Riparian or Littoral Rights. The rights of owners or lessees of land adjacent to navigable lakes, rivers or streams to maintain their adjacency to the lake, river, or stream and to make use of their rights as riparian or littoral owners or lessees in building or using aids to navigation but does not include any right to make any consumptive use of the waters. (3-30-23)
14. Single-Family Dock. A structure providing noncommercial moorage that serves one (1) waterfront owner whose waterfront footage is no less than twenty-five (25) feet. (3-30-23)
15. State-Owned Navigable Waterways and Navigable Waterways. As used in these rules, the beds of all navigable waterways up to the natural or ordinary high water mark as of the date Idaho was admitted into statehood. This includes any such bed that was formerly submerged and subsequently filled and is now uplands because of human activity (e.g., dikes, berms, jetties) or by natural processes, and includes islands within navigable waterways resulting from human activity or by natural processes. (3-30-23)
16. Submerged Lands. The state-owned beds of navigable lakes, rivers, and streams below the natural or ordinary high water marks. (3-30-23)
17. Temporary Permit. A revocable instrument authorizing a specific use on navigable waterways usually issued for five (5) years or less, but that may be issued for up to ten (10) years. (3-30-23)
18. Two-Family Dock. A structure providing noncommercial moorage that serves two (2) adjacent waterfront owners having a combined waterfront footage of no less than fifty (50) feet. Usually the structure is located on the common littoral property line. (3-30-23)
19. Uplands. The land bordering on navigable waterways. (3-30-23)
Leases are required for all encroachments defined in subsections 010.08 and 010.09 that are above, across, over, in, through, upon, and under the beds of navigable waterways except: (3-30-23)
01. Single -Family Docks. Single-family docks constructed: (3-30-23)
a. On or before July 1, 1993, that occupy less than eleven hundred (1,100) square feet of dock surface area, and for which all required permits and approvals have been obtained. (3-30-23)
b. After July 1, 1993, that occupy less than seven hundred (700) square feet of dock surface area, and for which all required permits and approvals have been obtained. (3-30-23)
02. Two-Family Docks. Two-family docks that occupy less than eleven hundred (1,100) square feet of dock surface area, and for which all required permits and approvals have been obtained. (3-30-23)
03. Noncommercial Encroachments Free to the Public. Noncommercial encroachments owned by any municipality, county, state, or federal agency for which the complete use is offered free to the public. (3-30-23)
04. Temporary Permits or Easements. Uses or encroachments that are customarily authorized by temporary permits or easements, such as roads, railroads, overhead utility lines, submerged cables, and pipelines. Information on easements can be found in IDAPA 20.03.09, 'Easements on State-Owned Navigable Waterways.' (3-30-23)
021. -- 024. (RESERVED)
01. Policy of the State of Idaho. It is the policy of the state of Idaho to regulate and control the use and disposition of the beds of navigable waterways so as to provide for their commercial, navigational, recreational or other public use; provided that the Board will take no action in derogation of or seeking to interfere with the riparian or littoral rights of upland landowners. (3-30-23)
02. Director May Grant Leases. The Director may grant leases for uses that are in the public interest and consistent with these rules. (3-30-23)
03. Requests or Inquiries Regarding Navigability. The State owns the beds of all lakes, rivers, and streams that were navigable in fact at statehood. Information about lakes, rivers, and streams deemed navigable by the State of Idaho is available from the Department. (3-30-23)
04. Stream Channel Alteration Permit or Encroachment Permit. Issuance of a lease is contingent upon the applicant obtaining a stream channel alteration permit if required by the Idaho Department of Water Resources, pursuant to Title 42, Chapter 38, Idaho Code, or an encroachment permit if required by the Department pursuant to the Lake Protection Act, Title 58, Chapter 13, Idaho Code. (3-30-23)
05. Submerged Lands Lease Required Upon Notification. All persons using submerged lands in a manner that requires a submerged land lease must obtain such a lease from the Director when notified to do so. (3-30-23)
06. Term of Lease, Renewal of Lease. Leases are issued for a term of ten (10) years or as determined by the Board. Leases may be renewed for additional periods as determined by the Department based upon satisfactory performance during the present term. Renewals will be processed with a minimum of procedural requirements and will not be denied except in the most unusual circumstances or noncompliance with the terms and conditions of the previous lease. A lease application fee is required for leases that are renewed upon expiration. Lease renewals are initiated by the Department. (3-30-23)
07. Rights Granted. The lease grants only such rights as are specified in the lease. The right to use the navigable waterways for all other purposes that do not interfere with the rights authorized in the lease remains with the state. (3-30-23)
08. Waiver of Lease Requirements. The Director may, in his discretion, waive lease requirements for single-family or two-family dock encroachments whose dock surface areas exceed square footages described in Subsections 020.01 through 020.02 of these rules when the additional dock surface area square footage is necessary to gain or maintain access to water of sufficient depth to sustain dock use. (3-30-23)
09. Private Moorage at Commercial Marinas. (3-30-23)
a. This Subsection does not apply to community docks. (3-30-23)
b. Private moorage at commercial marinas is allowed as long as the requirements of IDAPA 20.03.04.015.03 are met. (3-30-23)
c. The sale, lease, or rental of private moorage is not an encumbrance on navigable waterways. All transactions related to private moorage are subject to the submerged lands lease’s terms. (3-30-23)
d. Acquisition of private moorage must be documented with a disclosure that the transaction does not convey navigable waterways and only conveys the right to use the designated portion of the marina. (3-30-23)
e. The Department does not regulate the cost of private moorage or resolve disputes between a marina and private moorage owners. (3-30-23)
01. Fee. The non-refundable lease application fee is four hundred twenty-five dollars ($425) for new and existing encroachments. (3-30-23)
02. Application to Lease and Fee. The lease application and fee must be submitted with the following information, in sufficient detail for the Department to determine an appropriate lease rate: (3-30-23)
a. A completed application form. (3-30-23)
b. A scale drawing of the proposed lease area with plans detailing all intended improvements, including reference to the nearest known property corner(s). An encroachment or stream channel alteration permit may satisfy this requirement. (3-30-23)
03. Notification of Approval or Denial. The Department will notify the applicant in writing if the lease application is approved or denied, and if any additional requirements will be included. (3-30-23)
Rental rates for submerged land leases are set by Board policy, which is available on the Department website at http://www.idl.idaho.gov/. (3-30-23)
01. Standardized Rental Rates. The Board sets standard submerged land lease rental rates for common uses such as commercial marinas, community docks, float homes, restaurants, and retail stores. Rental rates for commercial marinas and other uses that produce revenue for the lessee will commonly be calculated as a percentage of gross receipts, however, other methods may be used as the Board deems appropriate. (3-30-23)
02. Nonstandard Rental Rates. The Board directs the Department to use a percentage of market value or gross receipts, or other methods determined appropriate by the Board, as the submerged lands lease rental rate for non-navigational encroachments or other uncommon uses. (3-30-23)
01. Annual Report. Lessees must provide an annual report to the Department that includes: (3-30-23)
a. A schedule of moorage rental rates, including moorage sizes and types. (3-30-23)
b. The number and size of all public boat and float home moorages. (3-30-23)
c. The number and size of all private boat and float home moorages. (3-30-23)
d. Current proof of insurance as required by the lease. (3-30-23)
02. Failure to Report. Failure to provide the annual report information is a violation of these rules. (3-30-23)
01. Late Payment of Rent. Rent not paid by the due date is considered late and will result in the following monthly charges. (3-30-23)
a. A late charge of $25.00 or 1% of the unpaid principal obligation, whichever is greater. (3-30-23)
b. An interest charge of 1% on the unpaid principal obligation. (3-30-23)
02. Late Charge Accrual. The Department will send monthly statements with the outstanding balance that will remain on the account and will continue to accrue late charges and interest each month, or any portion of a month, until the balance is paid in full. All payments will be applied first to accrued interest and late charges, and then to principal. (3-30-23)
041. -- 044. (RESERVED)
Appraisals may be used to determine the market value of adjacent uplands for calculating submerged lease rental rates. An appraisal will be conducted by a licensed appraiser selected by the Department, although the applicant may propose an appraiser to the Department. The Department will provide appraisal instructions. The appraisal will be performed in a timely manner, and a copy sent to the Department and the applicant. The expense of the appraisal will be borne by the applicant. (3-30-23)
046. -- 049. (RESERVED)
01. Encroachment Amendment. A lease amendment must first be authorized through a lake encroachment or stream alteration permit or permit amendment, if required. (3-30-23)
02. Amendment of Existing Lease. Amendment of an existing lease will be processed in the same manner as a new lease application, but no fee will be required. Amendment includes change of use, location, size or scope of the lease site, but does not include ordinary maintenance, repair or replacement of existing structures or facilities. (3-30-23)
03. Modification of Interior Facilities. If the proposed changes to a facility do not require a new encroachment permit, a lease amendment may still be needed as described in Subsection 050.02 of these rules. The lessee must give written notice to the Department at least ten (10) days in advance of making such changes. The Department will determine if a lease amendment is needed due to the proposed changes. When requested, the lessee must also furnish one (1) set of as-built plans to the Department within thirty (30) days following completion of changes. (3-30-23)
051. -- 054. (RESERVED)
01. Assignment of Lease. Leases may be assigned upon approval of the Director provided that the lease conforms with Subsection 025.02 and all other provisions of these rules. The assignor and assignee must complete the Department’s standard assignment form and forward it to any Department office. (3-30-23)
02. Assignment Fee. The assignment fee is two hundred dollars ($200). (3-30-23)
03. Permit Assignment. The encroachment permit/stream alteration permit pertinent to a lease must be assigned to a purchaser simultaneously with a lease assignment. A lease assignment will not be approved unless the permit is assigned. (3-30-23)
04. Approval Required for Assignment. An assignment is not valid until it has been approved by the Director. (3-30-23)
056. -- 059. (RESERVED)
01. Cancellation of Lease for Violation of Terms. Any violation of the lease by the lessee, including non-payment of rent or any violation by lessee of any rule now in force or hereafter adopted by the Board may subject the lease to cancellation. The Department will provide the lessee with written notification specifying the violation, corrective action necessary, and a reasonable time to make the correction. If the corrective action is not taken within the specified time, the Department will notify the lessee of cancellation of the lease no later than thirty (30) days prior to the cancellation's effective date. (3-30-23)
02. Lease Reinstatement. A lease may be reinstated within ninety (90) days after cancellation for non-payment by paying the rental, plus interest, and a reinstatement fee to be determined by the Board. (3-30-23)
03. Cancellation of Lease for Use Other Than Intended Purpose. A lease not used for the purpose for which it was granted may be canceled. The Department will notify the lessee in writing of any proposed cancellation. The lessee has thirty (30) days to reply in writing to the Department to show cause why the lease should not be canceled. Within sixty (60) days, the Department will notify the lessee of the Department's decision in writing. The lessee has thirty (30) days to appeal an adverse decision to the Director. (3-30-23)
04. Removal of Improvements Upon Cancellation. Upon cancellation, the Director will provide the lessee with a specific amount of time, not to exceed six (6) months from the date of final notice, to remove any facilities and improvements. Failure to remove any facilities or structures within such time period established by the Director will be deemed a trespass on navigable waterways. (3-30-23)
05. Additional Remedies Available. In addition to termination of the lease for the material default of the lessee, the lease may provide for other remedies to non-monetary breach of the lease including, but not limited to: (3-30-23)
a. Civil penalties as determined by the Board and to be collected as additional rent; (3-30-23) b. The reasonable costs of remedial action undertaken by the Department as a result of the lessee's failure to perform a requirement of the lease. These costs will be collected as additional rent; and (3-30-23) c. Such other remedies as the Board deems appropriate. (3-30-23)
061. -- 064. (RESERVED)
065. BOND.
01. Bond Requirement Determined by Director. Bonds may be required for commercial navigational, community dock, and nonnavigational leases. The need for bond will be at the discretion of the Director, who will consider the potential for abandonment of the facility, harm to state-owned submerged land and water resources, the personal and real property of adjacent upland owners and the personal and real property owned by the encroachment owner that is appurtenant to and supportive of the encroachment. (3-30-23)
02. Performance Bond. In the event a bond is necessary, the lessee must submit a performance bond in favor of the state of Idaho and in a format acceptable to the Director before a lease is issued. Acceptable bonds include surety, collateral, and letters of credit. The amount of bond is the estimated cost of restoration as established by the Director in consultation with the lease applicant on a case by case basis. To determine restoration costs, the Director may consider the potential for damage to land, to improvements, and the cost of structure removal. (3-30-23)
066. -- 074. (RESERVED)
075. OTHER RULES AND LAWS.
The lessee must comply with all applicable state, federal, and local rules and laws insofar as they affect the use of the lands described in the lease. (3-30-23)
076. -- 999. (RESERVED)