Water Right Basics: Priority, Beneficial Use and Forfeiture

Two people can stand on the same ditch and hold very different rights. One has a decree from 1912 for 4 cubic feet per second on 200 acres. The other has a license issued in 1988 for a pump on a parcel across the road. To compare them you need the vocabulary of the record: the elements of a right, the kind of document behind it, and whether it has been kept alive by use.

The elements of a water right

An IDWR water right record names, at minimum, the following. When a story says a right was "changed" or "enlarged," it means one of these elements moved.

If a right is said to be for "200 acres," that is the place of use. If it is said to run from April 1 to October 31, that is the period. If an owner starts using the water on a new field or from a new well without approval, that is a change in an element, and Idaho Code 42-222 requires approval first (lesson 4).

Claims, permits, licenses and decrees

A right can come to exist in several ways, and the paper behind it tells you its stage.

The ordering is not strict, because older rights went straight from use to claim to decree. A newer right usually goes application, permit, proof of beneficial use, license. Idaho Code 42-217 says a permit holder must file a proof of use on or before the date set for beneficial use, and the department then examines the diversion and the place of use, the ditch or canal capacities and the amounts actually applied. The license that follows states what was proven, and 42-220 says it is prima facie evidence of the right. A right that was never put to use at the planned scale ends up licensed at the amount that was.

Beneficial use, again, in more detail

Lesson 1 called beneficial use the measure of a right. A few details help in practice. Beneficial use means putting the water to work for a recognized purpose in a reasonable amount. The amount actually and reasonably needed is the limit, even if the paper right says more. In the irrigation context, 42-220 states that users cannot take more water than can be beneficially applied to the land the right serves, and that irrigation rights are subject to local or community rules adopted by a majority of users from the same source for economical use of water. The statute also says an irrigation license cannot give more than one second-foot of water for each 50 acres irrigated.

This explains why measuring devices, diversion records and aerial photographs show up in water cases. They are evidence of whether the water was used, where, and how much.

Forfeiture: the five year rule

Idaho Code 42-222(2) provides that a water right is forfeited after five years of non-use, and the water reverts to the state. A few features matter.

• Burden and standard. The party claiming forfeiture must prove it by clear and convincing evidence.
• One extension. The director may grant one extension of up to five additional years for good cause if other rights will not be impaired, and the request must be filed before the first five year period ends.
• Exceptions in 42-223. The section lists circumstances where non-use does not count. It also says it does not reduce any existing statutory or common-law exception to forfeiture.
• Stockwater has its own process. Idaho Code 42-224 sets an administrative and court process for forfeiture of stockwater rights, including a review by the director within 30 days of a petition, a show cause order, 21 days for the owner to request a hearing and an action by the Attorney General in the Fifth Judicial District. It does not apply to stockwater rights decreed to the United States under federal law.

The exceptions in 42-223, in plain words

The statute lists twelve numbered circumstances. In summary:

1. Land enrolled in a federal cropland set-aside program, with the clock stopped during the contract.
2. Municipal water held for reasonably anticipated future needs, until the planning horizon in the license has passed and the water is no longer needed.
3. Water not needed because waste such as dairy lagoon discharge is applied to land for disposal.
4. Non-use required to comply with a ground water management plan approved under 42-233a or 42-233b.
5. Rights placed in the water supply bank, or rented or leased under the listed statutes.
6. Circumstances beyond the owner's control, decided case by case.
7. Irrigation districts and similar entities, for non-use by their landowners or members, unless the entity controlled that non-use.
8. Land excluded from an irrigation district, unless the district controlled the resulting non-use.
9. Non-use from a conservation practice that keeps the full authorized beneficial use, as defined in 42-250.
10. Use for director-approved mitigation.
11. Mining, milling or processing shutdowns tied to mineral prices, if the owner has kept the property and mineral rights for future production.
12. Use that resumes after five years but before a third party makes a claim. A third party has made a claim by starting forfeiture proceedings, obtaining a valid right with an earlier priority date, or using the water that the non-use made available.

The list is a summary of a statute that has been amended over time. The current text at the legislature's site governs.

Forfeiture and abandonment

Forfeiture is statutory and depends on the passage of time: five years of non-use, with exceptions. Abandonment is older and comes from case law. It requires an intent to give up the right, shown by words or acts, and does not depend on a set number of years. Courts and the department can treat a right as abandoned where an owner demonstrated that intent. The two can overlap, but they are different legal ideas, and a right that survives forfeiture can in theory still be lost to abandonment if the facts support it. This lesson does not cite specific cases because the case law was not checked for this edition; the key is to know the two ideas exist and read the statutes for the time-based rule.

What residents and officials should take from this

• When land is sold, check the record for the elements and for recent use, not just the deed.
• When farmland is subdivided and no one irrigates, the clock on the water right may be running.
• When a city or district holds water for growth, the municipal and district exceptions may apply, within their terms.
• When a neighbor says a right has been forfeited, the neighbor does not decide that. The statute provides a process and a burden of proof.

Questions and answers

Does a field that sits fallow for a year or two put the right at risk?

The statute counts five years. One or two seasons of non-use is not forfeiture on its face. But keep records, and note whether any exception, such as a federal program or the water bank, applies.

Can I ask for the extension in 42-222?

The director may grant one extension of up to five additional years for good cause, if other rights will not be impaired, and the request must be filed before the five year period ends. Talk to the regional office well before the fifth year closes.

Is a reduced use, say half the acres, a partial forfeiture?

Forfeiture can apply to part of a right that was not used. Whether and how depends on the record and the facts; the department or a court decides in a proceeding.

What counts as use?

Putting the water to the beneficial use the right describes, at the place and in the period of the right. Records such as headgate logs, pump meter readings, power bills and crop records help show it.

Who can ask for a forfeiture?

Someone with a basis to claim it, such as a user affected by the non-use, may bring the matter. For stockwater rights, 42-224 sets a process starting with a petition or other information to the director.

Is a license the same as a decree?

No. A license is issued by the department after proof of beneficial use under a permit. A decree is a court order, often from a general adjudication. Both describe the right and both can be searched at IDWR.

Do I lose the right if I sell the land and the buyer does not irrigate?

The right passes with the land under 42-220 if it is a confirmed right, and the clock runs against whoever holds it. A buyer who intends to keep the right should know its last use date.

What if I am not sure of my right's elements?

Pull the water right report from IDWR (lesson 6) and compare it with how you actually use the water. If they differ, call the regional office.

Hard questions

"Use it or lose it punishes farmers who rest their land or conserve water. Why is that fair?"

The rule exists so unused rights do not tie up water that someone else could use. The legislature has answered the conservation concern by adding exceptions for conservation practices that preserve the full beneficial use, for the water bank and for leasing. Whether the exceptions go far enough is a policy question on which water users disagree.

"Clear and convincing evidence is a high bar. Doesn't that protect people who simply stopped farming?"

It does raise the bar for the party claiming forfeiture. Supporters say a property right should not be lost on thin proof; others say it makes it hard to free up long idle water. The higher standard is in the statute, and records of use usually decide the outcome.

"If circumstances beyond control are excused, doesn't that swallow the rule?"

The statute says control is decided case by case. The exception is not a free pass, because the owner must show the circumstance was out of the owner's hands. Outcomes depend on the facts, and the department or a court decides them.

"Should a city be allowed to hold water for growth that may never come?"

The statute allows municipal providers to hold water for reasonably anticipated future needs, until the planning horizon in the license has passed and the water is no longer needed. Supporters say cities must plan decades ahead. Others say the protection can lock up water. The limit is the planning horizon and the test of need.