What is a Water Right?

A water right is the right to divert the public waters of the state of Idaho and put them to a beneficial use, in accordance with one's priority date.

The Idaho constitution and laws declare all the 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, to be public waters. When a private right to the use of public waters is established by appropriation, a water right is established that is a real property right much like property rights in land. The constitution and statutes of the state of Idaho protect private property rights, including water rights.

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How is a water right established?

Historically, water rights were obtained by diverting water and putting it to a beneficial use, or by complying with statutory procedures. Now, a permitting procedure is required to establish a water right for surface water (other than for water rights used solely for instream watering of livestock) or ground water (other than for domestic purposes).

A structure used to divert the water from its natural source, or diversion is generally required to establish a water right. Typical diversions include pumps, headgates, ditches, pipelines and dams. The Idaho Water Resource Board is authorized to acquire water rights without diversions, called "instream flow" water rights, typically authorized for purposes of protecting some public interest in a natural stream or lake, such as recreation, wildlife, or natural beauty. A water right may also be acquired to water livestock directly from the stream, an "instream livestock" water right.

In some states, a landowner has the right to make a "reasonable use" of ground water underneath the land, or water naturally flowing on, through, or along the borders of the land. Such "riparian rights" are not recognized by Idaho law.

A water right under the law of the state of Idaho can be established only by appropriation, and once established, it can be lost if it is not used.

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What is the "priority date"?

The priority date is the date the water right was established. The priority date determines who gets water when there is not enough to satisfy all rights to a water source. Persons with the oldest ("senior") water rights get their water rights satisfied first and so on in order, until there is no water left.

What does "beneficial use" mean?

Beneficial uses include such uses as domestic use, irrigation, stock-watering, manufacturing, mining, hydropower, municipal use, aquaculture, recreation, fish and wildlife, among others. The amount of the water right is the amount of water put to beneficial use. Due to the beneficial use requirement, a water right (or a portion of a water right) may be lost if it is not used for a continuous five-year period.

Prior to 1971 (for surface water, and 1963 for ground water), diversion of water for a beneficial use established a water right with priority date of the first diversion. Rights established in this manner are known as "beneficial use," "historic use" or "constitutional" water rights.

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What are "domestic purposes"?

Domestic purposes are defined by statute as "(a) the use of water for homes, organization camps, public campgrounds, livestock and for any other purpose in connection therewith, including irrigation of up to ½ acre of land, if the total use is not in excess of 13,000 gallons per day, or (b) any other uses, if the total use does not exceed a diversion rate of 0.04 cubic feet per second and a diversion volume of 2,500 gallons per day." The exception for domestic purposes does not include "water for multiple ownership subdivisions, mobile home parks, commercial or business establishments" unless the use does not exceed a diversion rate of 0.04 cfs and a diversion volume of 2,500 gallons per day.

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Can a water right be changed?

Any person wishing to make a change in a water right -- changing the point of diversion, place of use, period of use, or nature of use -- must file an application of transfer with IDWR for approval of the change. In general, five conditions must be met. The change must:

The IDWR is authorized by Section 42-222A of the Idaho Code to shortcut the usual change procedures and to issue emergency transfers during drought conditions.

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How do I get a water right? Do I need one?

If you are currently diverting the public waters of the state and putting the water to beneficial use, then you may already have a valid water right established either by the statutory method or by beneficial use. If water was used on your property before you acquired it, and the person you acquired the property from did not "reserve" the water right in the deed conveying the property to you, and you continued the use of water, you may have acquired a valid water right along with your land. Also, some water rights (including both water rights established by the statutory method and water rights established by beneficial use) have been confirmed by a decree of a state or federal court.

IDWR keeps records of water right decrees and licenses, and these records are available for public inspection.

You may need a new water right for an existing use of water if a water right was not properly established for the existing use. A new water right is also needed for a new use of water. An application for a permit must be filed with the IDWR. Public notice and a review process are required, after which a permit may be issued. The permit holder must provide proof of beneficial use before the deadline for completion of the appropriation. A field examination is required (either by the IDWR or a certified field examiner). When all requirements are met, the IDWR issues a license.

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What is a claim?

Two types of filings are known as claims. Statutory claims were required by a 1978 statute, for persons with beneficial use rights (other than water rights used solely for domestic purposes) to record their water rights with IDWR. The statute provided for documenting water rights for which there were previously no records. These records are merely affidavits of the water users, and do not result in a license, decree, or other confirmation of the water right.

A "notice of claim" to a water right is filed with IDWR in water rights adjudications. An adjudication is a court action for the determination of existing water rights, which results in a decree that confirms and defines each water right. (The Snake River Basin Adjudication is a "massive administrative and legal process begun in 1987 designed to sort out more than 170,000 individual claims for water rights from the Snake River and its tributaries.")

This page was adapted from the Idaho Dept. of Water Resources pages on water rights. Consult their website for further information.