Idaho Water Users Association (IWUA) Executive Director Paul Arrington gave a recent update on Idaho water issues to the Water Law and Resources Issues Seminar in Sun Valley.

Lynn Jaynes

Emeritus Editor

Lynn Jaynes retired as an editor in 2023.

Water college

There was a lot of turnover in our legislature this year, nearly 50% of those starting terms were new and learning the ins and outs of working with lobbyists, who hadn't really had a lot of understanding about water and water-related issues. So, the IWUA legislative committee formed a work group that created the Legislative Water College, which was held last August.

The water college tour included the Bear Lake area, the Magic Valley and Mini-Cassia area, the Treasure Valley and then ended up in Lewiston. About 100 different legislative candidates from all of the various districts, and representatives for several state offices, joined IWUA to talk about water issues. Big-umbrella issues impacting the whole state were addressed, but local issues to each region were brought in as well.

The next Legislative Water College will be held Aug. 28-30, 2023, in the Magic Valley/Mini-Cassia area. (More information is on the IWUA website.)

Easement issues

Idaho Statute Title 42 Chapter 11 says (in part and paraphrased here) landowners are not allowed to plant trees, put gates, build roads, etc., on a ditch easement. And if they do, they have to remove it or the easement owner can remove it. This self-help remedy is available for trees, bushes, gates, fences, etc.

The issue before the court last year was when a landowner put in a culvert that restricted flow. This involves a different section of code that does not have the same self-help remedy-type language. The court determined that if someone does this, the canal company or irrigation district has to go to court to be remedied. So, in other words, if someone puts a tree that interferes with the use of the easement, the irrigation district can take that out, but if someone moves the ditch or puts a culvert in without the knowledge or permission of the irrigation district, the easement owner has to use the court process, which can be very expensive and time-consuming.

Some sections of the code address these self-help remedies, but others do not, and it’s inconsistent throughout. So, IWUA is in the process of extensively reorganizing the code sections dealing with easements and rights of way to be clear and consistent throughout, remove redundancies and to consolidate where possible to make the process easier to follow. Those changes will be further vetted, explained and proposed to legislators in upcoming sessions.

Along with this code reorganizing process, IWUA hopes to tackle the assessment collection and call process in the future. As it stands now, several timelines overlap and the code is very cumbersome to read. Arrington said, “I mentioned this at the office group here a couple of weeks ago, and they just laughed at me … everybody laughs at me because this is cumbersome, this is big. I don't know that it will happen this year. But I am in the process behind the scenes, trying to figure out if there's a way to do this.”

Domestic exemptions

At its core, the domestic well exemption allows for a water right for one household to have a half-acre of irrigation, up to 13,000 gallons a day. What has happened over time is: A lot of domestic-exemption water rights are being developed every year. Often a subdivision is developed and, rather than hassle over a new community water right, the developers will design the lots with individual domestic wells and individual septic systems. During times of water shortage, these junior water-right holders are allowed to keep watering their lawns and gardens even though water users around them are being curtailed. In addition, more wells drilled create more opportunity for water quality concerns. “We have asked ourselves: Does it make sense to continue to allow this unfettered growth?” Arrington asked. Just for discussion’s sake, there are 2,500 new domestic wells in the state each year. This means up to 1,250 new acres of irrigation (half-acre for each well) without mitigation or administration. Is that a responsible approach to water efficiency?

The flip side of that involves the developers’ perspectives where cumbersome regulations have “painted them into a corner” where the only way they can get a development done (in a reasonable time at a reasonable cost) is to design it with individual domestic wells.

Subsequently, an IWUA working group has met and talked for about a year-and-a-half now with county administrators, developers and realtors to address these issues. They’re coming close to a straw-man proposal, or potential path forward, intended to get the conversation moving to the next step.

This proposal includes these elements:

1. Community wells would be required for subdivisions – a domestic well would no longer be an option for these types of developments.
2. A clear, predictable mitigation path forward so that developers can avoid extensive and expensive litigation over water rights. This could include retirement of water right or payment to a mitigation fund (i.e., if XXX-action takes place is litigation required, or is there a pre-determined mitigation process?)
3. Amending the local land-use planning act and other provisions as necessary to require that surface water remain on the property. (Even though there's currently a preference to maintain surface water on the land, there's been an ability to not do that, and it happens often, so this is an effort to tighten up that code to require that if there is surface water on that property that can be delivered that it remain with that property.)
4. Amending Title 67 Chapter 65 (67-6508) to include available water supplies as a part of the comprehensive planning process.

Remembering that this is a straw-man proposal, Arrington said, a lot of questions still need to be discussed, like, is this the right language? “I don’t know what this will end up looking like. This is just to get the ball rolling,” Arrington said. “This is a heavy legislative lift, but the hope is to carve out some things to address concerns and provide meaningful benefits.”