I have gotten many messages in recent days asking me what I think of water adjudication and whether the state is trying to steal water.
First, here is the headline we have seen recently in North Idaho news:
IDWR sending out 5,000 notices to water users in the Priest River area, requesting water rights claims for adjudication.
So, the core question people have asked me is whether, through adjudication, the state is trying to steal the water they use, or the rights to it, and even whether the state wants to require water flow meters on domestic wells.
I will start by saying the state is not trying to steal your water. And, they are not requiring flow meters on private wells. In fact, I am going to assert up front that there is nothing bad about water adjudication, and that IDWR, the Idaho Department of Water resources is extremely helpful to property owners in assisting and defending their rights and ability to use water on their property.
Water adjudication is a massive subject, but let’s try to boil it down to the basics.
First, you do not own the water that is under, on or runs across your property. In other words you do not have a property right to water on your property. Let’s examine why this is so, but I am going to draw an analogy – you also do not own the wild animals, even the game animals that walk onto your property.
Water, like wild game, is a shared resource in the state of Idaho and always has been. This is mainly because water, like game, is a limited resource, and we actually have to function as a community to all benefit from it. We all need it for life.
The stream that flows across or under your property also flows across or under other people’s properties. If you were able to harness and divert the entire Snake River at the point that it ran across your property, and thereby deny its use to every other person in the state of Idaho, then significant harm could come to everyone else who lives in the state. That is why from the beginning of Idaho statehood in 1890, water has not been considered private property, but has instead been considered an appurtenance to your land. In order to be just in the distribution of water, we have developed a constitutional and statutory system whereby the resource can be shared.
Since there have always been competing users of the limited resource that is water, there have been disputes about the right to use the waters, and there have been arguments about who gets senior rights, both as to points in time when uses have begun, and what types of uses are senior – like domestic versus agricultural versus industrial or mining.
As well, there are literally hundreds of thousand of water diversions in the state of Idaho for beneficial use, so that there are potentially hundreds of thousands of disputes.
Water adjudication, which has just commenced in North Idaho can be simply considered preemptive dispute resolution.
Let’s examine our rights to water as seen in the Idaho Constitution.
First, the Idaho Constitution is the supreme law of Idaho as it pertains to water rights, and the constitution has an entire article on water rights. In Article XV, we find the following:
As to your use of water for private purposes, Section 3 states that: “The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied.”
It continues – “When the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall (subject to such limitations as may be prescribed by law) have the preference over those claiming for any other purpose; and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes. And in any organized mining district those using the water for mining purposes or milling purposes connected with mining, shall have preference over those using the same for manufacturing or agricultural purposes”.
We can see clearly in this text that when Idaho became a state in 1890, domestic use was the highest priority use, followed by agriculture and mining before industrial use and that our rights to use will not be denied but are subject to the limits of the availability of the natural resource. We can see there is a certain logic to the order of priorities – we need to drink water and bathe and clean, and then we need to grow food. Idaho, being the gem state, has as its next priority mining use, and finally we need water for work, so industrial use is last.
Section 4 of this constitutional article essentially guarantees water for agricultural use, and then in Section 5, water demand is balanced for agricultural purposes when supply is limited: “priority in time shall give superiority of right to the use of such water in the numerical order of such settlements or improvements; but whenever the supply of such water shall not be sufficient to meet the demands of all those desiring to use the same, such priority of right shall be subject to such reasonable limitations as to the quantity of water used and times of use as the legislature, having due regard both to such priority of right and the necessities of those subsequent in time of settlement or improvement, may by law prescribe”.
So, our representatives in the legislature, subject to our election (not some unelected bureaucracy) is the body charged with prescribing law to allocate limited supplies beyond domestic use. Idaho statute defines domestic use as being up to 13,000 gallons a day which is a pretty substantial amount of water, and the statute includes up to a 1/2 acre of irrigation. See section 42-111 of Idaho Code for the definition of domestic use.
While the Idaho constitution establishes a state water agency, now known as the Idaho Department of Water Resources, that un-elected, bureaucratic agency is subject to the legislature as the constitution prescribes that “any change in the state water plan shall be submitted to the Legislature of the State of Idaho”.
So in the end, it is our elected representatives, subject to our votes and our recalls, that are the ultimate administrators of the state’s allocation of water.
Beyond the Idaho constitution, there is a substantive body of statutory law. Most of these laws are not new, and many date back to the 1890’s, shortly after Idaho became a state in the union.
All of the statutes are in Title 42 of Idaho Code and include gems like these:
• Section 42-101: “Water being essential to the industrial prosperity of the state, and all agricultural development throughout the greater portion of the state depending upon its just apportionment to, and economical use by, those making a beneficial application of the same, its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. 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 are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose, and the right to the use of any of the waters of the state for useful or beneficial purposes is recognized and confirmed; and the right to the use of any of the public waters which have heretofore been or may hereafter be allotted or beneficially applied, shall not be considered as being a property right in itself, but such right shall become the complement of, or one of the appurtenances of, the land or other thing to which, through necessity, said water is being applied; and the right to continue the use of any such water shall never be denied or prevented from any other cause than the failure on the part of the user thereof to pay the ordinary charges or assessments which may be made to cover the expenses for the delivery of such water”.
• Section 42-501: “an agency of the federal government cannot obtain a stockwater right under Idaho law unless it actually owns livestock and puts the water to beneficial use. It is the intent of the Legislature to protect Idaho stockwater right holders from encroachment by the federal government in navigable and nonnavigable waters”.
• Section 42-104: “APPROPRIATION MUST BE FOR BENEFICIAL PURPOSE. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such purpose, the right ceases”.
• Section 42-106: “As between appropriators, the first in time is first in right”.
Let’s summarize some of the basics. Water is a limited resource that we share with our neighbors and do not technically own as a property right per se, but it is a complement to our property. We can appropriate and use the water in Idaho for a multitude of beneficial uses – domestic (up to 13,000 gallons a day), stockwater ( “Stock watering use means the use of water solely for livestock or wildlife where the total diversion is not in excess of thirteen thousand (13,000) gallons per day” – stock watering is considered an agricultural use), agriculture, mining and industrial, but those appropriations are subject to limits as the water itself is limited. In all, IDWR recognizes 75 different types of uses. Think of it this way, if I have a glass of water, and we all stick a straw into the glass, there is only so much water available at any given point in time for the competing uses. So, we must have a system of prioritization and dispute resolution.
Think also of water as a checking account. Every person that appropriates and diverts water for their beneficial use is in some way writing a check against the balance of the account. Deposits are being made as some of that water goes back to the source after use and as water is added through various hydrologic means. Water adjudication, such as just started in Priest Lake/Priest River is basically a process by which we will determine at a point in time all of the checks that have been written against the balance so that we can make sure the account balance is not in the red.
And the Idaho Department of Water Resources is the technical expert and facilitator of the process by which that will happen. Remember, many of the laws are not new – they were in our constitution in 1890 or added to statute in the 1890’s, so it has been a truth all along that there would be competing uses for a limited, shared resource, and there would need to be a mechanism for documenting uses and resolving disputes.
How did water adjudication get started in Idaho?
There are a few things to know about general water adjudication:
1) It is not a regular occurrence. Since 1890, this is the first time there will be a general adjudication of the entire Clark/Fork Pend Oreille basin.
Historically, adjudication has been specific dispute resolution between very localized interests. In the 1980’s, a general adjudication was commenced of the Snake River Basin. The adjudication that is about to take place in Priest River and subsequently the rest of Bonner County and finally Boundary County, essentially started in 1983. The opportunity for general adjudication actually began with a federal law passed by the United States in 1952 called the McCarran Amendment.
When adjudication is complete in Boundary County, the entire state will have been adjudicated, it will have included federal and Indian land water rights in Idaho, and Idaho will be the only western state to have completed a complete adjudication of water rights in the entire state. This is a tremendous accomplishment and undertaking, and we will actually all be better off for it in the future.
1983: The year this started.
The seed of general adjudication in Idaho started in 1983 with a water rights dispute involving Idaho Power Company and its hydroelectric dams. It was thought that Idaho Power’s hydroelectric rights were subordinated to upstream junior rights. An Idaho Supreme Court decision put that long-held belief in doubt, so the Idaho legislature created a subcommittee to examine the question. The advisory committee published a report in November 1983 that recommended that a general adjudication commence of the Snake River water basin to quantify all of the rights to use the water of the basin.
In response, in 1985, the Idaho legislature passed a new section to chapter 14 of title 42 of Idaho Code to establish a general adjudication of water rights in the Snake River basin, including incorporating the United States and Indian lands into the adjudication process, since they were appropriating the waters of Idaho as well.
The Snake River Basin adjudication commenced in 1987 and concluded 27 years later in 2014. The final decree was 275,000 pages and cost $94 million to the state of Idaho. All of that money was appropriated over time by the Idaho legislature, and the legislature was heavily involved in the authorization of the entire process. It was hoped that fees from the United States for its claims would largely pay for adjudication, but where the US Supreme Court weighed in was that federal law did not allow for the payment of the total amount of fees by the US that Idaho sought from the federal government.
More than 158,600 water rights were decreed, and there was more court action on water rights in that 27 year span than in the previous 97 year history of the state of Idaho.
As a result of the 27 year long effort of the Snake River basin adjudication, Idaho knows with a certainty the nature and extent of all water uses in that basin.
IDWR was the Idaho agency charged with taking, investigating, and reporting water right claims. It developed many of the procedures, and its technical expertise was relied on heavily by the court and the parties. IDWR’s role evolved over the course of the adjudication as it went from being a party to the litigation to an independent expert assigned to assist the court and the claimants.
The Snake River basin general adjudication was assigned to the 5th district court in the state of Idaho by the Idaho Supreme Court. That Idaho state district court is in Twin Falls, and the court had to develop significant processes and expertise to handle the workload of such a massive effort. US Supreme Court justice Antonin Scalia noted that the entire 27 year effort “amounted to one claim every 90 minutes – an astonishing pace by anyone’s standard”.
Along with and following the Snake River adjudication, most of the other water basins in Idaho have been similarly generally adjudicated. The Palouse River basin adjudication is the latest to finish, starting in 2019 and completing this year (2021).
The only remaining basins to adjudicate in the state are the Clark Fork/Pend Oreille basin and Boundary County. The Bonner County basins are 96 and 97, with Priest River, basin 97, going first.
When Boundary county completes at some time in the future, the state of Idaho will be the only western state to have completed a total general adjudication of all water rights in a state.
What does this mean for you? Is the state your enemy or your friend?
Since I purchased my Bonner County land in 2004, I have filed two water rights claims. Essentially, I have appropriated and diverted the waters of the state of Idaho for my beneficial use. In my first case, I drilled a 300′ domestic well in 2006 and filed a domestic use water right claim on the resulting diversion of ground water. This is not usual (it is not even required for you to use the water from our domestic well), but I recommend it. Your well driller will not do this for you, and at the time it cost me $100 to file the right.
IDWR is a total ally in this process and completely helped and facilitated the filing of the use. My second use is another groundwater source. 8 years ago, I had the idea to dig a 12′ deep hole in a wet area of my property and installed two 4′ diameter concrete casings. There was a significant amount of ground water in the excavation that gets captured by the casings. I filed a water right on this diversion for my beneficial use of the water for irrigation and stockwater, and then developed the system.
I installed a pump and a significant system of buried pipe and sprinklers and hydrants to both water acreage and to fill our cattle’s stock tanks.
Once again, IDWR was an excellent partner in informing me how to file the right, and they were the inspectors of the ultimate diversion. I paid $100 to file that right.
In general water adjudication, I will have to pay at least a $25 fee to continue both of those rights. The process is relatively generous that if I missed the deadline, it is still possible to record my rights. Yes, you do want to file all of your rights, because general adjudication is going to result in a court decree respecting your rights.
And since my rights were established in 2007 and 2013, consider the advantage to having your rights filed and IDWR on your side. Let’s say the adjoining forest land upstream of me was eventually developed into a golf course (God forbid!), and let’s say that it became demonstrable that the irrigation of the golf course negatively affected the water available in either of my points of use.
Because my rights were older, and thus superior, rather than me having to hire a private attorney at significant personal expense to pursue a civil remedy in court, I could instead contact IDWR, and they would in essence go to bat on my behalf to preserve any superior right I have to the shared ground water source.
Here is what water adjudication further does. Even before Idaho became a state, water was diverted and appropriated by various interests, homesteaders, agriculture and mining and industrial use. After Idaho became a state that process continued. For decades many of those appropriations were never documented. In fact, it wasn’t until the 1960’s and 1970’s that the legislature established a uniform system for establishing the documentation of water appropriations and rights.
The process of adjudication is going to result in a huge inventory and cleaning up of the books of water uses that were appropriated but never documented and water uses that were perhaps documented but later abandoned, freeing up the ability to appropriate the water supply to other uses (remembering this whole thing is like balancing the checkbook or doing a bank statement reconciliation). We essentially want to take a complete and total snapshot in time of all water uses in the state of Idaho and have a court decree certifying those uses.
This adjudication will help to short circuit future potential disputes between competing uses or validate your own rights.
In any case, this is not a state power grab, and the state is not seeking to over-regulate you or over tax you through the process. They are not seeking to take away a use of water you are already benefiting from.
There are some state agencies I like to complain often about. There are some regulations I don’t like. But sharing the waters of the state is a legitimate community interest, and it is my opinion that the Idaho Department of Water resources is an asset to landowners and a helper to us in establishing water rights and assisting us and advising us in developing diversions and appropriations of Idaho waters for our use.
Thank God that we live in a state where water is bountiful, but even so it is limited, and we have a state agency that is ultimately authorized by the constitution and overseen by the legislature that is an ally in the people’s interests.
It is important that if you are using water on your property that you make sure your use becomes part of the final decree for the adjudication of our North Idaho basins. Visit the Idaho Department of Water Resources website to learn more. Here is a link to a two page IDWR adjudication brochure. I highly recommend you read this resource.