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Claim your water rights now

by ANNISA KEITH
Staff Writer | May 3, 2022 1:00 AM

This article was amended on May 03, to reflect corrections from the Idaho Department of Water Resources

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SANDPOINT — It’s time to claim your water rights.

Following court rulings on water rights south of the Idaho Panhandle, the Idaho Department of Water Resources is now turning its attention to the Clark Fork-Pend Oreille Water Basin.

Those looking for help filing their claims will have an opportunity to do so at a series of workshops hosted by the Idaho Department of Water Resources from Tuesday through Thursday.

“The most important thing I can say about this process is that it’s about preserving your water rights,” state Senator Jim Woodward, R-Sagle, said last week at an informational meeting held by the Lakes Commission. “What we’re trying to do with water adjudication is, we just want to figure out who has a water right, how much water is it, and when was it established.”

A water right is the legal ability for an entity to use water from a specific source. In Idaho, citizens have natural water rights for domestic and stockwater use — also known as de minimis water rights — meaning that they are allowed to use the water in the state without needing to get permission first. All other forms of water use must first acquire a permit through the department of water resources.

A water right is recognized by a water court. There are also water laws that accompany water courts. Decisions in these courts are determined by a judge, in a process known as water adjudication. This court is located in Twin Falls and rules on water rights for the entire state.

There is more than one purpose for the state to document all of the water rights in Idaho. According to a presentation given by IDWR Water Allocation Bureau Chief Shelley Keen at the Thursday meeting, the most prominent reason for adjudication is so property owners can have an official, recognized claim to their water rights. A second reason is so the court process can move quickly in case of a dispute. Another major reason is so Idaho can rule on water rights in state court — instead of being handled by a federal judge in federal court.

“In a state-based water rights adjudication, the United States is required by federal law to participate in the state water rights adjudication,” Keen said. “They are required to claim their water rights and have them determined by the state court.”

“In the 1950s, Congress passed a law that says the state can sue the federal government to make them come in and answer for water rights, and they have to defend their claims,” attorney Norm Semanko said at the meeting.

In order for the federal government to be compelled into state water court, Idaho must first claim every water right in the state. Individuals, incorporated areas, the governor, and the federal government will all be claiming water rights in this process.

In order for a water right to be recognized in court, a user must divert water from a specific source, and use it for a specific reason — it’s that simple.

There is a long list of legitimate uses for water in Idaho. And according to Keen, the list keeps growing. The most common water use is for residential and stockwater use, also known as de minimis water rights.

“The list of things society values has grown a lot over time,” Keen said. “Now we see a lot of water rights for aesthetic use, recreation ponds, for wildlife. How much water you're entitled to, even if you just want to look at it, can be claimed.”

IDWR has records for about 2,700 water rights on file in the Clark Fork-Pend Oreille Water Basin. It is expected that up to 9,000 water right claims will be filed in the basin, IDWR said in a press release on Sept. 7

IDWR is in the process of sending notice to all property owners in the basin; however, not all of them will need to file water rights. Those exempt from filing are those who are living in an incorporated area. Anyone living in a city, municipality, sewer district, or water district will not have to file water rights, as the municipality or district will file on their behalf, Keen said.

The Clark Fork-Pend Oreille Water Basin is in the first phase of being adjudicated. The reason for this, according to officials from IDWR, is that the northern region has a relatively small population accompanied by an abundance of lakes, rivers, and other water sources. Nearly 10% of Bonner County’s surface area is water, according to a 2005 document by the Bonner County Planning Department.

The basin reaches from the Canadian border in Boundary County, to the area surrounding the southern tip of Lake Pend Oreille in Kootenai County at its southernmost point. The basin reaches across the length of the panhandle from the Washington border in the west, to the Montana border in the east.

More specifically, the northern border of the basin consists of the area surrounding Upper Priest River, Pack River, Grouse Creek, and areas west of the Cabinet Mountains. The southern border of the basin consists of the area around Hoodoo Creek, Carywood Creek, the southernmost portion of Lake Pend Oreille, and the surrounding area up until the Shoshone County border.

The workshops, being held by IDWR at the Ponderay Events Center, 401 Bonner Mall Way, will be from 8 a.m.-.6 p.m., May 3-5, to assist those who will be filing water rights. There is also an active online portal for those who wish to file their water rights virtually. Applicants will be able to file after the workshops as well.

Documents that applicants should bring to file a claim include a legal description of the property, documentation of the township and range, and evidence of the earliest water usage. Evidence can come in many forms. Acceptable forms of evidence include anything that can be proven in a court of law. Some, but not all, forms of evidence include physical or written evidence of water use, including notarized testimony.

"Don't underestimate the power of affidavit testimony,” Lacey Rammell-O’Brien, deputy Attorney General, and advisor to IDWR, said on April 28. “If you can get a notarized affidavit, that can be used as evidence to determine a priority date. If you can find an old-timer that's willing to go to a notary with you, if parcel records are hard to find, don't underestimate your neighbors."

Water uses with a longer, or older, history will be superior to other water uses established later on. This is why IDWR uses the term, “first in time is first in right.”

Filing a claim costs $25 for domestic and stockwater uses. Other types of water rights will be subject to different fee amounts. To file a claim or view the basin map, visit the Idaho Department of Water Resources website at idwr.idaho.gov. Additional help is available in person at IDWR’s northern regional office in Coeur d’Alene, 7600 N. Mineral Dive, Suite 100. They can also be reached by phone at 208-762-2800, or by email northerninfo@idwr.idaho.gov. Those experiencing difficulties with filing a claim are encouraged to reach out.