Transfers, Changes and New Applications

Water moves from one use to another all the time in Idaho. A farm sells a few acres for homes. A city buys an old irrigation right to supply a growing neighborhood. A rancher drills a new well and moves the point of diversion. A dairy asks for a new permit. Each step is controlled by a short set of statutes, and each has a notice and a chance for other water users to object. Understanding that system is the best way for a resident to protect a right of their own or to follow a story in the paper.

Changing an existing right: Idaho Code 42-222

Section 42-222(1) requires a water right holder to apply to IDWR for approval before changing the point of diversion, place of use, period of use or nature of use. The application describes the right and the proposed change and includes the filing fee. The director reviews the application and provides notice. If there are protests, the director investigates and holds a hearing. The director must also get a recommendation from the watermaster of the district where the water is used before deciding, and treats it as other evidence. The director may approve the change in whole, in part, or with conditions. Once approved, the applicant may make the change after a copy of the approved application is returned.

Test one: no injury

The director may approve a change only if "no other water rights are injured thereby," in the words of the statute. Injury is harm to another water right: less water arriving at its headgate, less return flow it depends on, a worse time of delivery. The question is not whether the change is good for the applicant. It is whether other holders end up worse off.

Test two: no enlargement

The change must not be an enlargement in use of the original right. A right is limited by its historic beneficial use. The director may consider consumptive use in deciding whether a change is an enlargement. That is a reason a transfer to a different place of use can be approved for less water than the face of the right shows. The statute gives one clear exception for stored water: transferring stored water for irrigation is not an enlargement even if more acres are irrigated, provided no other rights are injured.

Other considerations

The statute also refers to consistency with water conservation and the local public interest. The practical effect is that a change application is a mini-review of the whole right, its history, its use and its effect on others.

A new application for permit

A person who wants to start a new use of public water applies to IDWR for a permit under Title 42, chapter 2. The notice and protest steps are in Idaho Code 42-203A.

1. Application filed. The applicant files with the filing fee. Fees in 42-221 are tiered by the quantity or storage volume, and for transfers and changes they scale with flow and add charges for changing the nature of use. The statute adds $50 for a legal description fix with no physical change and $250 when the nature of use changes. The base amounts for the smallest tiers were not confirmed for this lesson, so check the current IDWR fee schedule.
2. Notice prepared. The department prepares a notice listing the application number, filing date, applicant's name and address, water source, amount, nature of use, approximate diversion point and point of use. It states that protests are due within 10 days of the last date of publication.
3. Publication. The notice runs at least once a week for two successive weeks in a newspaper printed in the county of the point of diversion, or a newspaper of general circulation there if none is printed. For diversions over 10 cfs or 1,000 acre-feet it must also run in newspapers with statewide circulation. IDWR also posts the notice on its website, but the published newspaper notice is the official one.
4. Protest window. Any person, firm, association or corporation concerned in the application may file a written protest within 10 days of the last publication date, with the filing fee, their name and address, their signature or an agent's signature, and a clear statement of their objections.
5. Hearing. If protested, a hearing is held within 60 days of receiving the protest, with certified mail notice to the applicant and protestants at least ten days before.
6. Decision. If no protest is filed, the director may approve an application that conforms to the chapter and department rules. The director may reject or partly approve an application, or approve it with conditions, on the grounds in 42-203A(5).
7. Review. A person who formally appeared at the hearing and is aggrieved may seek judicial review under 42-1701A(4).

The seven grounds in 42-203A(5)

Whether or not an application is protested, the director may reject it, approve it for a smaller quantity or approve it with conditions if the application:

• will reduce the quantity of water under existing rights;
• seeks water that is insufficient for the intended purpose;
• is not made in good faith, or is made for delay or speculation;
• comes from an applicant who lacks the financial resources to complete the work;
• conflicts with the local public interest as defined in 42-202B;
• is contrary to conservation of water resources in Idaho; or
• will adversely affect the local economy of the source watershed, where the place of use is outside that watershed.

The statute says minimum stream flow water rights cannot be established under the local public interest criterion.

Mitigation and conditions

Where a new use or a change would injure other rights, the director may approve with conditions, and one common condition is mitigation: providing water or a reduction in use to offset the effect. Idaho Code 42-223 recognizes mitigation in a related way by excusing non-use that is for director-approved mitigation. In ground water areas, mitigation can mean delivering surface water or reducing pumping; lesson 7 covers it for the Eastern Snake Plain. Conditions can also include measuring devices, reporting, limits on rate or season, and partial approval.

How neighbors can take part

1. Watch for notices. Check IDWR's site and the legal notices of the county newspaper where your source is.
2. Read the application: source, amount, diversion, place of use, and the water right number if a change.
3. Compare it with your own right on the record: priority date, source, point of diversion. If you are junior, your risk may be low; if you are senior or share a small source, your risk is higher.
4. If you protest, file in writing within the window, with the fee, your name, address and signature, and specific objections tied to the grounds in the statute.
5. If you are a party, attend the hearing and speak. Formal appearance matters for later review.
6. Keep records: your notice, your copy of the protest, the date you filed, and the response.

Questions and answers

How long do I have to protest?

For a permit application, within 10 days of the last date of publication of the notice (42-203A). Count from the actual last publication date. For change applications under 42-222, protests must also be filed within 10 days of the last date of publication of the notice.

Do I need to hire anyone to protest?

No. The statute allows the protestant, or an agent, to sign. The protest has to be in writing, with the fee, name, address and specific objections. Call the regional office with procedural questions.

What does a protest cost?

42-221 sets a fee for filing a protest or request to intervene. IDWR's water rights page lists it as $25, non-refundable, per application, but the statute text itself was not confirmed here, so check the current IDWR fee schedule before filing.

How long does an application take?

It varies. The statute sets a hearing within 60 days of a protest, but processing before and after depends on workload, protests and any investigations. Ask the regional office for the current expected time.

Can I change my right and keep farming the old place?

Only the part you move changes. A partial transfer can split a right into two, each with the original priority date, subject to the no injury and no enlargement tests.

Does a county land use approval give me water?

No. A county can approve a subdivision, but water rights come from IDWR. Applicants are often asked by the county to show a water supply plan, but that is a separate approval.

What is the local public interest?

It is a criterion defined in Idaho Code 42-202B for permit applications. Read the section for its current terms.

Can I lease water instead of changing a right?

Idaho has a water supply bank and rental and lease programs referenced in 42-223. Details are in Title 42 and on IDWR's site.

Hard questions

"The no injury rule protects old users from new ones. Doesn't it block growth?"

It protects holders of existing rights, which are property. It does not bar growth: applicants can buy and transfer existing rights, supply mitigation or accept conditions. People who want faster approvals argue for streamlined processes; people with senior rights argue for caution. The statute attempts both by requiring protection and allowing conditions.

"A 10 day window is far too short for ordinary residents."

It is short, and that is a real tradeoff. The window gives applicants finality and fits a system that handles many applications. Residents can reduce the risk by checking notices regularly and calling the regional office when one appears. Whether the window should be longer is a question for the Legislature.

"Why should a city be allowed to buy farm water and dry up farmland?"

A city can only use a right it holds, and a change must pass the no injury and no enlargement tests. Supporters of such transfers say water should move to higher value uses by willing sale. Critics point to local economies that depend on irrigated farmland. The statute includes the local public interest and local economy criteria for permit applications, and a change application can be conditioned.

"If I miss the protest window, is it over?"

For that application, usually yes as to your right to protest. Other routes may exist, such as raising an injury later with the watermaster or the department if a use harms your right, but those are harder and are decided on their facts. Check the notice date the day it appears.