By Art Macomber and Brooks Schott
Water Rights Defined
August, 2017. All waters of the State when flowing in their natural channels, including the waters of all-natural springs and lakes within the boundaries of the state and ground waters of the state, are public waters.[i] The Idaho Constitution guarantees the right to appropriate public waters.[ii] When a private right for the use of public waters is established by appropriation,[iii] a water right is established that is a real property right.[iv] Idaho defines a “water right” as the right to divert public waters and put them to a beneficial use in accordance with one’s priority date.[v] Beneficial uses include domestic use, irrigation, stock-watering, manufacturing, mining, hydropower, municipal, aquaculture, recreation, as well as water uses for sustenance of fish and wildlife.
How to Gain a Permit to Divert Water for a Water Right
The Idaho Department of Water Resources manages water in the State of Idaho through water allocation and distribution processes. Any person, association or corporation intending to acquire the right to the beneficial use of public waters must make an application to the Department of Water Resources for a permit to make such appropriation.[vi] The application must state the point of diversion, the amount of water to be withdrawn, and the use of the water.
For example, a new landowner may intend to divert water from a stream in order to irrigate crops. Prior to watering his crops, that landowner must apply for a permit with Idaho Department of Water Resources for the amount of water diverted and the type of use. This process is used to ensure that no downstream users of that water are interrupted by the new landowner’s use.
Who Gets Water in A Shortage
The priority date is the date when the water right was established through the issuing of a permit. Priority dates are important because they determine who gets water when there is a shortage. If there is not enough water available to satisfy all of the water rights, then the water is allocated according to the oldest water right to the newest until there is no water left.[vii] When there is not enough water to satisfy all the water rights, the newest water rights holders will not get water. This process of allocating water between users is known as the prior appropriation doctrine.[viii]
Idaho law does have an exception for domestic uses of water. Domestic use means the use of water for homes, organization camps, public campgrounds, livestock and for any other purpose in connection therewith, including irrigation of up to one-half (1/2) acre of land, if the total use is not in excess of thirteen thousand (13,000) gallons per day.[ix] In the event of a water shortage, domestic uses of water will not be cut off, even if that domestic use is junior to other water rights.[x]
Competing Water Rights
Not all water rights throughout the state of Idaho have been registered with the Department of Water Resources. For one reason or another, many users have a long history of use without ever registering their use. When water is plentiful, neighboring water users may never realize the potential for conflict. However, in times of shortage, without an established water right, competing water users will have to adjudicate to determine who gets to use the water. In areas where an official adjudication of the watershed has not taken place, the private parties must go to district court to battle it out. In areas where the State of Idaho has undertaken adjudication of water rights within one or more watersheds, this process also uses the courts, specifically the Idaho Water Court in Twin Falls to list and confirm all water rights and the properties to which those water rights belong. The adjudication binds all property owners and parties to the court’s decree of those water rights.
Note: This post is not legal advice, and should not be relied upon as such. Different sets of facts will likely lead to different legal conclusions. If you need assistance with real property matters, call Bristol George, PLLC for a forty-five minute, no charge consultation to see if we can help.
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[i] Idaho Code §§ 42-101; 42-226.
[ii] Idaho Const., Art. XV, § 3.
[iii] Appropriation means “the identification of a beneficial use and place of in-stream use of the waters of a stream. It shall not be construed to require any kind of physical structure or physical diversion from the stream.” I.C. § 42-1502(a).
[iv] See Idaho Const., Art. XV, and Idaho Code § 42-101, et seq.
[v] See Idaho Code § 42-230.
[vi] Idaho Code § 42-202(1).
[vii] Idaho Code §42-106 (“PRIORITY. As between appropriators, the first in time is first in right.”)
[ix] Idaho Code § 42-111(a).
[x] Idaho Const., Art. XV, § 3.