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Definition
| Prior Appropriation: in ID, the doctrine of prior appropriation applies to all water sources (except diffuse see infra) A. Key elements of prior appropriation: 1. priority date: each water right under the appropriation doctrine is assigned a calendar date based on its initiation 2. priority principle: when demand exceeds supply, it is allocated by the principle: priority in time gives priority in right |
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Term
| Two Ways to Make an Appropriation |
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Definition
1. Constitutional Method 2. Permit Method |
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Term
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Definition
| Constitutional method: requires (1) a diversion from the source of supply; and (2) putting it to a beneficial use |
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Term
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Definition
Permit Method: a permit has been mandatory for appropriation in ID since March 25, 1963 for groundwater, and May 20, 1971 for surface water (exception: permit is still optional for the in-stream watering of livestock). Getting a permit does not substitute the traditional requirements of diversion and beneficial use. The permit process includes:
a. application: a person wishing to appropriate must file a permit application with the Dept. of Water Resources
b. grounds for denial: the Dept. may deny an application on the following grounds:
i. proposed use will reduce quantity of water in the source of supply for existing water rights;
ii. water right being sought is insufficient for the intended purpose;
iii. application is not made in good faith, but for speculative purposes;
iv. applicant lacks sufficient financial resources with which to complete the work involved;
v. proposed use will conflict with the local public interest
vi. proposed use is contrary to conservation of water resources within the State of Idaho; or
vii. proposed use is outside the watershed or local area
c. time for completing appropriation: once permit is issued, permittee has 5 years to divert and put to beneficial use
d. extension of time: permittee may extend and additional 5 years for (1) litigation delay or need for Federal Approval; (2) large projects (need to irrigate more than 5,000 acres and already spent $100,000); or (3) good cause
e. license: once the permittee shows the Dept. the water has been put to beneficial use, he is issued a license |
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Term
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Definition
Who may appropriate: of course, all land owners; but also consider the following—
1. Lessees: fee ownership of land is not necessary. A lessee may make an appropriation in his own right.
2. The State: ID Sup. Ct. allows appropriation of non-consumptive use. Also, the ID Water Resource Board is authorized.
3. Trespassers: a trespasser on the land where the water is put to beneficial use may not acquire an appropriation. |
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Term
| Quantity that Can be Appropriated |
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Definition
Quantity that can be appropriated: note: appropriation is measured at the point of diversion, not the place of use 1. Water measurements: flowing water is measured in cubic feet/second (c.f.s.)—these are also known as “miner’s inches,” and the relationship is 1 c.f.s. = 50 miner’s inches; stored water (in a dam) is measured in acre feet (a.f.) 2. Maximum allowable appropriations: a. statutory limit: no more than 1 c.f.s. can be diverted for each 50 acres irrigated, nor more than 5 a.f. stored annually for 1 acre irrigated (unless the appropriator can show that more is necessary e.g. porous soil) b. common law limit: appropriator may not waste water by taking more than reasonably necessary (domestic or farm) |
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Term
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Definition
| Place of Use: in ID, water can be used far away from the source from which it is diverted 1. trespass with a ditch: trespass with the transportation ditch will void the appropriation (note: a prescriptive easement is like adverse possession, so if you trespass with a ditch for 5 years, and meet the requirements (infra) you’re golden) 2. eminent domain: ID has delegated the power of eminent domain to appropriators who need rights-of-way to transport the water from its diversion point to its place of use 3. rights of servient landowner: owner of servient land can relocate the water transport system at his own expense, if the change does not impede the flow of water or injure anyone involved with the system, and gets written permission |
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Term
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Definition
| Priority Date: water right assigned under the appropriation is assigned a priority date based on when it was initiated. 1. Appropriation by Constitutional method: priority date is the date that water was first applied to beneficial use. (E.g. permit obtained in 1954, ditches dug in 1955, irrigation begins in 1956. Priority date is 1956.) 2. Appropriation by Permit method: priority date is the date the application of the permit was first filed. (E.g. 1954.) 3. No increase of diversion rate under original priority date: an appropriator may not increase the rate at which water is diverted under the original appropriation. (E.g. 10 c.f.s. in 1956. Increase to 15 c.f.s. in 1960. No priority date for 15 c.f.s., but the 10 c.f.s. remains 1956, and the 5 c.f.s. will date back to 1960.) |
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Term
| Allocation in Time of Shortage |
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Definition
| Allocation in time of shortage: generally, priority in time gives priority in right 1. when priority principle invoked: a senior appropriator who is not receiving enough water can invoke the priority principle to shut off an upstream junior appropriator if it will provide the senior with additional usable water when he needs it. 2. effect of return flow: generally, irrigation appropriations are only about 50% consumptive. Return flow must be considered when applying the priority principle. (E.g. a junior’s diversion of 10 c.f.s. might deplete the flow by only 5 c.f.s. after return flow is added.) Note: burden of proof is on the junior to show diversion is not interfering with senior. 3. priority of preferences: (1) domestic uses are preferred over all others; (2) agricultural uses are over manufacturing; and (3) mining and milling are preferred over manufacturing or agricultural uses, in an organized mining district. (helpful mnemonic: DAM) Note: a junior preferred user can’t just take water ahead of a senior nonpreferred user. The preference amounts only to a right to condemn, and requires payment of just compensation |
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Term
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Definition
| Water Right transfers: a change in point of diversion, place of use, period of use, or nature of use requires a permit. 1. change in point of diversion or place of use: permit can be issued only if: (1) no other water rights will be injured; (2) change doesn’t constitute an enlargement in use of the original right; (3) change is in the local public interest; (4) change is consistent with conservation of water resources in the state; (5) change will not adversely affect local economy of the watershed or local area where water originates if new use is outside that area; and (6) new use is a beneficial use 2. change in period of use or nature of use: permit can only be issued if all of the above 6 issues are complied with, as well as—(1) Dept. of Water Res. may not approve change from an ag. use where change would significantly affect the ag. base of the area; and (2) need approval by Dept. if change involves volumes greater than 50 c.f.s. or 5,000 a.f. |
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Term
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Definition
Loss of Water Rights:
1. prescription: like adverse possession, it requires adverse use by another for 5 years. Also requires prescriptive claimant’s use to be (1) open and notorious; (2) hostile and under claim of right; and (3) exclusive of the right of the appropriator.
2. abandonment: requires a cessation of use plus a manifestation of intent (shown by clear and convincing evidence) to relinquish the water right. Note: no time requirement for abandonment.
3. forfeiture: 5 continuous years of nonuse. Proof of forfeiture must be by clear and convincing evidence. Note: the appropriator may get an additional 5 year extension if he shows “good and sufficient reason” for lack of use. Also: if an appropriator fails to use for 5 years, but later resumes use, the resumption revives the water right if a 3rd party didn’t already take over the rights under one of the theories mentioned here.
4. partial forfeiture: if appropriator with rights to 5 c.f.s. diverts only 3 c.f.s. for 5 years, he partially forfeits 2 c.f.s.
5. estoppel: long and continuous nonexercise of the right such that another person detrimentally relies on the appearance that the appropriator lacks interest in exercising or protecting his right
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Term
| Adjudication and Administration |
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Definition
Adjudication and Administration
1. adjudication: process by which the characteristics of water rights are determined
2. adjudication decree: after a hearing the court issues a decree setting forth the key elements of each water right, including: (1) the priority date; (2) the amount that can be diverted or stored; (3) point of diversion; (4) place of use; (5) period of use; and (6) nature of use.
3. unadjudicated Constitutional Method rights: the watermaster is directed by statute to treat each unadjudicated constitutional method water right as subsequent to any adjudicated, decreed, permit, or licensed right in the same water, regardless of the alleged priority date of the unadjudicated right. (I.e. you’ve got to prove your priority.)
4. Snake River Basin Adjudication (SRBA): 87% of ID lies in the Snake River Basin. Any lawsuit that involves determining water rights in the basin must be heard in the SRBA District Court in Twin Falls, established in 1987.
5. administration:
a. water districts: geographic management areas created by the director of the Dept. of Water Resources to facilitate water right administration.
b. canal companies: nonprofit mutual corporations formed for the purpose of supplying water to its shareholders (landowners served by the canal company). Shares of stock in a canal company represent the right to receive water for the shareholder’s land and are inseparable from the water right appurtenant to the land. Note: foreclosure on a mortgage or deed of trust gains the water right as well as the property appurtenant to the water right.
c. irrigation district (not to be confused with water districts): formed upon 2/3 majority vote of landowners within the physical boundaries of a proposed district. District then includes the land even of those who voted against it.
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Term
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Definition
| Trust Water: Idaho Power Co. holds several early priority water rights for power generation at its Swan Falls power plant southwest of Boise. The Co. claims a total of 8,400 c.f.s., but has subordinated everything but 3,900 c.f.s. during irrigation season, and everything but 5,600 c.f.s. the rest of the year. The State of ID holds this subordinated water in trust for future appropriators, but until those uses occur, Idaho Power may continue to use the water for power generation. |
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Term
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Definition
Groundwater: the appropriation doctrine governs all groundwater in ID. A permit has been required for groundwater appropriation since March 23, 1963, however, no permit is needed for domestic use wells or for wells operated by irrigators solely to recapture seepage from their irrigation operation for further use on the land to which the water right is appurtenant.
1. domestic use: includes use for homes; organization camps; public campgrounds; livestock and any purpose in connection therewith, including irrigation of up to one-half acre of land, but total use must not exceed 13,000 gallons/day.
2. designated groundwater areas: (1) critical groundwater areas: those basins or subbaisins that do not have sufficient water to provide a reasonably safe supply for existing appropriators and persons with valid permits to appropriate (significance is that permits application will likely be denied in a critical groundwater area); (2) ground water management areas: those basins or subbasins that are approaching critical status (significance is that application will only be approved after director determines on an individual basis that sufficient water is available).
3. pumping level protection: if two or more wells are close together, their cones will overlap and the flow from one may be diminished by the flow from the other. The following priority rules apply to pumping levels:
a. reasonable pumping level protection: a senior groundwater appropriator is protected only in the maintenance of a reasonable pumping level, rather than the well’s historic pumping level.
b. payment of costs for lowering a well: a senior well owner has no recourse against a junior well owner unless the junior well drops the senior’s pumping level below a reasonable level, at which point the senior can shut down the junior under priority principle. Note: a junior whose well interferes with a pre-1978 senior well can continue to operate only upon paying the senior’s increased pumping costs or providing the senior with replacement water.
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Term
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Definition
| Waste and Seepage water: water discharged from irrigation or other use; may be found on the land surface or underneath it. Waste and seepage water may be appropriated by a second user. But despite such appropriation, the original appropriator is entitled to capture the waste and seepage for reuse as part of the exercise of the original right if: (1) the captured waste and seepage is put to beneficial use on the land to which the original water right is appurtenant; and (2) the original appropriator has not abandoned or forfeited the right to recapture. |
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Term
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Definition
| Salvaged Water: water within a stream system that previously was being lost but due to the efforts of a salvager is no longer lost. A salvager who meets the usual requirements for making an appropriation has a right to the saved water free of priorities on the stream, because the salvaged water would not be found in the stream but for the salvager’s efforts. |
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Term
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Definition
| Developed Water: water not previously found within the water supply system that the developer adds to the supply (e.g. water imported from another river basin and added to a stream—this seems highly unlikely and cost prohibitive). A developer has an appropriation that can be exercised free of earlier priority appropriations on the stream because of the but for test (supra). |
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Term
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Definition
| Diffuse Surface water: water from rain or snow flowing diffusely over the surface of the ground. Not subject to appropriation |
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