Establishing a Water Right

Surface Water

Prior to May 20, 1971, there were two ways in which a right to surface water could be established. The first way was to simply divert water and apply it to beneficial use. These water rights are called “beneficial use”, “historic use” or “constitutional” water rights. The priority date for a water right established by this method is the date water was first put to beneficial use.

The second way to establish a right to surface water was to comply with the statutory method in effect at the time the water right was established. The current statutory method is an application/permit/license procedure that is described further below. The priority date for a water right established by this method is the date of filing the application with IDWR, and this priority date is shown on the license that is issued when the process is completed. Prior to 1903, Idaho had a “posted notice” statute, which provided for posting of a notice at the point of diversion and recording the notice at the county recorder’s office, followed by actual diversion and beneficial use of water, among other things. If the statutory requirements were met then the priority date for a water right established under the posted notice statute was the date of posting the notice. Water rights established under the old statutory method are called “Posted Notice” water rights, but are considered beneficial use rights because they are not confirmed by a license or decree.

As of May 20, 1971, there is only one way to establish a right to surface water, and that is by following the application/permit/license procedure that is described further below. The one exception to this rule is for water rights used solely for instream watering of livestock.

Ground Water

Prior to March 25, 1963, there were two ways to establish rights to ground water , which are the same methods described above under surface water. As of March 25, 1963, there is only one way to establish a right to ground water, and that is by following the application/permit/license procedure that is described further below. There is one exception to this rule. A “beneficial use” right to ground water may still be established for domestic purposes. “Domestic purposes” is 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 one-half (1/2) acre of land, if the total use is not in excess of thirteen thousand (13,000) gallons per day, or (b) any other uses, if the total use does not exceed a diversion rate of four one-hundredths (0.04) cubic feet per second and a diversion volume of twenty-five hundred (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 four one-hundredths (0.04) cubic feet per second and a diversion volume of twenty-five hundred (2,500) gallons per day.

Other Kinds of Water “Rights”

Some persons have a right to receive water that is not an "appropriation". For example, some persons have the right to receive water that is represented by shares in a ditch company. In such cases, the ditch company has the appropriation, and the water users have a right to receive water from the ditch company.

Other examples are persons who receive water from a city, an irrigation district, or a water utility company (such as United Water of Idaho). Again, the water user may have a right to receive water from the city, district, or utility, (usually contingent upon payment of a fee), but does not have an appropriation.

Riparian Rights Not Recognized in Idaho

You may also have heard of something called “riparian rights”. In some states, an owner of land has the right to make a “reasonable use” of ground water underneath her land, or water naturally flowing on, through, or along the borders of her land. A riparian right to make use of the water is not limited by priority date and it cannot be lost by non-use. Idaho law does not recognize a “riparian right” to divert and use water.

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.