IDAHO INSTREAM WATER RIGHT LAW AND POLICY
Idaho Flow Enhancement Administrative Tools
Hal N. Anderson, Administrator
Planning and Technical Services Division
Idaho Department of Water Recources


Tool Box

  • Water Supply Band
  • Legislation
  • Special Agreements
  • Minimum Stream Flow
  • Water Districts
  • Water Right Transfers

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Water Supply Bank

  • The water resource board shall have the duty of operating a water supply bank. The water supply bank shall make use of and obtain the highest duty for beneficial use from water, provide a source of adequate water supplies to benefit new and supplemental water uses, and provide a source of funding for improving water use facilities and efficiencies. I.C., 42-1761
  • Water Bank rules adopted by Board, October 1980 as mandated by 42-1762.
  • Board may purchase, lease, accept as a gift or otherwise obtain rights for natural flow or stored water and credit them to the Board's water supply bank.
  • Rights may be divided or combined provided that there is no injury to other right holders or enlargement of use and the change is in the public interest.
  • Board may appoint an entity to serve as a local committee to facilitate the lease of rental and stored water.
  • Local committee develops procedures for operation of the rental pool which must be approved by the board.
  • Procedure requirements are established in the water supply bank rules

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Legislation

  • Modifications to existing authorities or creation of new authorities responsibility of Legislature.
  • Creation of Lemhi water bank required special legislation.

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Lemhi Water Bank Legislation

  • Provided authority for delivery of water to Board minimum streamflow application. Water normally not delivered to an application and appropriated water not available to satisfy minimum flow.
  • Local Committee authorized to rent natural flow.
  • Procedures provided for part year leases, which is unique to Lemhi
  • Legislation recognized rented water would satisfy requirement that minimum flow be "capable of being maintained".

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Special Agreements

  • Shepherding "conserved water" past downstream diversions that would otherwise be entitled to divert requires legally enforceable agreements.
  • Subject to the agreements, the watermaster will shepherd, to ensure passage of the conserved water.
  • Agreements may require installation of measuring devices, headgates or manual measurements.

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Minimum Stream Flow

  • Idaho Water Resource Board is only body authorized under Chapter 15, Title 42, Idaho Code, to submit an application to IDWR for minimum flow.
  • Any person, association, municipality, county, state or federal agency may, in writing request that the Board consider the application of a minimum stream flow of the unappropriated waters of any stream.
  • Priority date is the date application is filed with IDWR.
  • Board may hold public meetings to review applications.
  • Minimum flow must; not interfere with vested water rights, be in public interest, be necessary, be minimum not most desirable and be capable of being maintained.

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Water Districts

  • Director IDWR shall have direction and control of the distribution of water from all natural sources within a water district. I.C., 42-602
  • The director shall divide the state into water districts in such a manner that each public stream and tributaries, or independent source of water supply, shall constitute a water district. I.C., 42-604
  • Each water district is considered an instrument of the state for the purpose of performing the essential governmental function of distribution of water. I.C., 42-604
  • Watermaster elected by district or appointed by director, IDWR.
  • Watermaster is compensated by district.
  • Director may remove watermaster.
  • Watermaster shall take and subscribe an oath to faithfully perform duties and is appointed by director.
  • It is duty of watermaster to distribute water of public streams according to the prior rights of each respectively.

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Water Right Transfers

  • I.C., 42-222 provides for the change in point of diversion, place of use, period of use of all or part of a water right.
  • Change cannot be an enlargement, must be consistent with conservation, and in the local public interest.
  • Diversions could be consolidated or moved to a less critical reach.

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Protection of Conserved Flows

  • Shepherding conserved water requires legally enforceable agreements and a responsible shepherd.
  • Only the consumptive portion of a water right may be conservable.
  • In stream losses are considered in determining delivery.
  • Shepherding may require additional stream gages and measurements.

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SB 1100

  • I.C., 42-223, provides for statutory or common law defenses to forfeiture
  • New defense proposed in SB 1100.
  • "No portion of any water right shall be lost or forfeited for nonuse if the nonuse results from a water conservation practice, which maintains the full beneficial use authorized by the water right, as defined in section 42-250, Idaho Code."
  • Concern given was that users for some reason not able to continue more efficient water use then may need to go back to less conservative/original methods.

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Quick Find:

Tool Box

Water Supply Bank

Legislation

Lemhi Water Bank Legislation

Special Agreements

Minimum Stream Flow

Water Districts

Water Right Transfers

Protection of Conserved Flows

SB 1100