Surface Water Rights
Prior to May 20, 1971, there were two ways to establish surface water right.
- Divert water and apply it to beneficial use. These water rights are called "beneficial use" (or "historic use" or "constitutional") water rights. The priority date for a water right established by this method is the date water was first put to beneficial use.
- Establish a right to surface water by complying with the statutory method in effect at the time the water right was established. The current statutory method is an application/permit/license procedure. The priority date for a water right established by this method is the date of filing the application with IDWR, and this priority date is shown on the license that is issued when the process is complete. Prior to 1903, Idaho had a "posted notice" statute which provided for posting of a notice at the point of diversion and recording the notice at the county recorder's office—followed by actual diversion and beneficial use of the water (among other things). If the statutory requirements were met, then the priority date for a water right established under the "posted notice" statute was the date of posting the notice. Water rights established under the old statutory method are called "posted notice" water rights, but are considered "beneficial use" water rights because they are not confirmed by a license or decree.
As of May 20, 1971, the only method to establish a surface water right is by following the application/permit/license procedure. The one exception to this rule is for water rights used solely for instream livestock watering.
Ground Water Rights
Prior to March 25, 1963, there were two ways to establish ground water rights—which are the same methods described for surface water (above).
As of March 25, 1963, the only method to establish a ground water right is by following the application/permit/license procedure. The one exception to this rule is for water rights used for domestic purposes.
Other Kinds of Water “Rights”
Some people have a right to receive water that is not an appropriation.
- Irrigation Organizations: Some people have the right to receive water that is represented by shares in an irrigation organization. In such cases, the irrigation organization has the appropriation and the water users have a right to receive water from the ditch company.
- City or Water Utility Company: Some people receive water from a city or a water utility company. The water user may have a right to receive water from the city or utility company (usually contingent upon payment of a fee), but that user does not have an appropriation.
In some states, a land owner has the right to make "reasonable use" of ground water beneath his or her land, or water naturally flowing on, through, or along the borders of his or her land. A riparian right to make use of that water is not limited by priority date and it cannot be lost by non-use. Idaho law does not recognize a "riparian right" to divert and use water. A water right under Idaho law can be established only by appropriation, and once established, it can be lost if it is not used.