Water Rights FAQ's
Idaho’s waterways are owned by the State as a public trust resource. A water right is the right to divert the public waters of the State and put them to beneficial use. A water right is a “usufructuary right,” meaning a right to use, as opposed to a right to possess. The owner of a water right does not own the water itself, just the right to use it.How can Water Rights be Used?
Every water right consists of certain “elements” that prescribe how, when, and where water may be used under the right. A water right cannot be used in ways that exceed the parameters of these elements. For example, a water right authorized for irrigation cannot be used for industrial purposes without first going through an administrative process to change the right.What is a “Priority Date”?
Water rights in Idaho are governed by the “prior appropriation doctrine.” Under this doctrine, when there is not enough water to fill all of the water rights, the available water supply is allocated between water rights based on the principle that “first in time is first in right.” The priority date is the date the water right was acquired. It determines the water right’s place in line when there isn’t enough water to go around.How is Water Measured?
Either by volume or flow rate. Volume is typically measured by gallons or “acre-feet.” An acre-foot is the amount of water required to cover one acre of land one foot deep. There are 325,850 gallons in an acre-foot. Rate of flow is measured by miner’s inches, gallons per minute (gpm), or cubic feet per second (cfs). The relationship between these measurements is explained here.How do you get a Water Right?
Water rights are acquired by applying to the Idaho Department of Water Resources (IDWR) for a permit to appropriate water. A permit is not a water right, but rather the authorization to develop a water right. If the permit holder diverts and uses water in accordance with the terms of the permit, IDWR will issue a license, which is a valid water right. A decreed water right is one that has been judicially validated, and is equivalent to a license.
Most of Idaho’s waterways are fully appropriated, meaning all of the water is already been developed under existing water rights. Consequently, new water needs are now typically met by acquiring existing water rights and, if needed, changing them to meet the new need.Are There Different Types of Water Rights?
People use the term “water right” in a general sense to refer to the right to use water, but not all water rights are equal. A water right may be based on a claim filed with the Idaho Department of Water Resources (IDWR), a permit or license issued by the IDWR, a decree issued by a court of law, or stock in an irrigation company. Some of these provide a more concrete entitlement to use water than others. In addition, water may be used for some purposes such as fire suppression without a water right.Are Water Rights a Type of Property Right?
However, because a water right is based on the use of water, it is a much more dynamic interest than a possessory interest in land. Whereas land is fixed in place and easily observed, water falls from the sky, evaporates, freezes, flows, and can be channeled from one place to another, used in different ways, intercepted by other water users, or forfeited by nonuse. These unique characteristics require buyers of water rights and lenders secured by water rights to perform important due diligence analyses to ensure the transaction meets their expectations.What is a “Delivery Call”?
This occurs when the holder of a senior-priority water right does not receive all of the water they are entitled to, and asks IDWR to shut off junior-priority water rights in order to provide more water to the senior.What is “Conjunctive Management”?
Idaho’s surface water sources (rivers, creeks, lakes) were traditionally administered separately from its aquifers. In the 1990s the Idaho Supreme Court ordered they be administered conjunctively. “Conjunctive management” is the process of administering surface water and groundwater together.
Conjunctive management is difficult because of the different hydrologic environments in which surface and groundwater exist. Since surface water flows in confined channels it can be relatively easily channeled from junior to senior water users by opening and closing headgates and shepherding water through rivers, canals, and ditches. Groundwater is different. When a well is shut off, the effects propagate out through the aquifer in all directions. Consequently, conjunctive management is a highly technical process.What is a “Mitigation Plan”?
A document submitted to IDWR by the holders of a junior-priority water right that identifies actions and measures to prevent or compensate holders of senior-priority water rights for injury caused by the junior’s water use. Mitigation plans are prepared to either avoid curtailment in response to a delivery call or to offset the impacts of a new water right.What is the Snake River Basin Adjudication (SRBA)?
The SRBA was a statutorily created lawsuit to inventory all of the water rights in the Snake River Basin. A special court system in Twin Falls was created to manage this large and complex case. The SRBA began in 1987 and concluded in 2014, resolving more than 158,000 water right claims.What is the North Idaho Adjudication?
As the SRBA neared completion, the State of Idaho initiated an adjudication of water rights in northern Idaho beginning in 2008. This case is being handled by the court in Twin Falls, because of its specialized expertise in water rights. The North Idaho Adjudication is ongoing.What is the Bear River Basin Adjudication?
IDWR has conducted a number of informational meetings to discuss a proposal to adjudicate the water rights in the Bear River Basin. If commenced, the adjudication would include both surface and ground water rights in those portions of Bannock, Bear Lake, Caribou, Cassia, Franklin, Oneida, and Power Counties within the Bear River Basin.
The SRBA court recommends water users follow six basic steps to protect their interests in an adjudication:
- Be sure you file a claim for each water right you believe you are entitled to.
- Use the Internet to follow developments in the adjudication. The Bear River Basin will be managed by the SRBA court. You can log onto the court’s website at www.srba.state.id.us. You can also subscribe to the docket sheet published monthly by the court which provides a list of documents filed and a list of upcoming hearings.
- Review all the documents filed in the adjudication that relate to the water right in which you are interested. Whether you are the claimant or an objector or respondent, you should study the director’s report, the objections to the director’s report and IDWR’s working file on each water right for which a notice of claim was filed. You can review this file at IDWR’s regional offices or its main office in Boise during normal working hours. Contact the IDWR Adjudication Hotline at 800-451-4129 to determine where to go to review this file.
- Be an active participant in all proceedings relating to the water right in which you are interested, and attend all conferences and hearings ordered by the Special Master. You should also review and respond to all legal notices and pleadings you receive. Responses to some pleadings must be made within a certain time period or severe consequences may occur. Never assume that another person will represent your interests (unless that person is your lawyer). You or your lawyer must be present to state your position or protect your interests.
- Determine whether or not to hire a lawyer to advise or represent you. General stream adjudications are complicated lawsuits and while not every person in the SRBA needs a lawyer to participate effectively, many people do need legal assistance or representation in complex matters. At a minimum, seriously consider consulting with a lawyer for assistance in understanding your subcase and your interests. Then you can make an informed decision on whether to hire a lawyer or represent yourself in the remainder of the proceedings.
- Keep both IDWR and the court informed of your current address or if you buy or sell property with water rights. The court needs your current mailing address to mail notices and other legal documents. It is your responsibility to notify IDWR and the court of any changes in your address or changes in the ownership of your property. IDWR has a standard forms available for these changes. If you are buying or selling property, do not assume that the realtor will automatically take care of notifying IDWR.