From the January 2002 Idaho Observer:

The art of incrementalism: State slowly empowers water czar through statutes, administrative rules

In conducting the research necessary to intelligently oppose U.S. government / Nez Perce Indian claims against Snake River Basin springs on private land, Watchman on the Wall, a pro-American Citizen group centered in the Kamiah/Kooskia area of Idaho, has discovered that the state has positioned itself so that it may turn off your private water source at its bureaucratic whim or discretion. As of right now, an agent of the Idaho Department of Water Resources (IDWR) can trespass on your property at any time. Upon inspection of your well, he may order that it be brought up to IDWR specifications under threat that your water source will be ordered shut down by authority of the Idaho “water czar.”

by Dick Lawson

Idaho Department Of Water Resources inspectors are currently afield locating wells and identifying their GPS coordinates for the state database. I will go into the statutes that created this situation later. But first, a little background is in order.

Under the Idaho Constitution:

Article 15; sections 4 & 5 state that whenever water rights have once been granted by the state, the holders of same shall not thereafter be deprived of the use of said water. They also provide for a seniority system of water rights. That is, the oldest water rights take precedence over more recent ones.

Article 15; section 7, states that a state water resource agency shall be created by the legislature and gives the legislature primacy and oversight of this agency.

Article 15; section 3 states that any deprivation of water rights shall be subject to the takings provisions regulating the taking of private property under Article 1; section 14. Thus, the Constitution of the state grants equal footing between water rights and property rights.

The current state water plan (1996) still recognizes the constitutional authority and those provisions mentioned above. Under the plan, the water board has certain programs and duties enumerated, none of which are at the sole discretion of the director, and none of which are arbitrary.

Within the plan are the following quotes:

“It is the policy of Idaho that the state has sovereignty over decisions affecting the development and use of its water resources, and that the state opposes any attempt by the federal government, its management agencies, any other state, or any other entity to usurp the state's role in these areas.”

“The state's position on existing and proposed federal policies and actions should be coordinated by the water board to ensure the state retains its traditional right to control the water resources of the state.”

“Actions taken by federal agencies under authorities created by the Endangered Species Act do not modify state law. Efforts by the citizens and agencies of the state to achieve federal goals may be constrained by existing state law, particularly the protection and preservation of state water rights.”

“Because of the comprehensive scope of state water planning, the Idaho Water Resource Board encourages the federal government to work within the state water planning process rather than independently pursuing federal protection of waters within Idaho.”

“It is the policy of Idaho that, when it is in the public interest, the Idaho Water Resources Board should seek to appropriate waters in the state for instream flow purposes.”

“Instream flows protect many nonconsumptive uses, such as fish and wildlife habitat.”

“Chapter 15, Title 42, Idaho Code, provides the authority and spells out procedures for the Idaho Water Resource Board to appropriate water for minimum stream flows.”

“Chapter 15, Title 42, Idaho Code, should be expanded to enable the Idaho Water Resource Board to transfer acquired water rights to instream flow water rights.”

It should be noted that none of the above excerpts from the state Constitution provide authority for the discretionary actions being taken by the current director of IDWR.

You'll also notice the apparent waffling within the plan as to federal jurisdiction over water. In the first quote, the state asserts its sovereignty, but by the fourth quote the state is “encouraging,” rather than mandating, that the feds work within the state system.

Well, that's how it was. But that's not how it is now. Apparently, the state legislature passed a series of bills that, in essence, gutted the whole state water system. In so doing, they have negated most of the rights of private water rights holders. Before delving into these statutes, some more background is necessary:

In the early 1980s, Idaho Power Company filed suit against the State of Idaho contending that the state failed to allocate sufficient water resources to maintain sufficient instream flow in the Snake River. The settlement entered into between the state and Idaho Power Co. is known as the Swan Falls agreement. Under this agreement, the state agreed to re-adjudicate all water rights holdings in the Snake River Basin. This encompasses over 80 percent of the state's water supply. The state also agreed to manage the basin's resources to maintain certain minimum instream flows.

On August 30, 2001, a lawsuit was filed in the U.S. District Court in Boise which alleges irrigators are in violation of the takings act for diverting water away from fish.

A letter, dated October 31, 2001, from the Idaho Attorney General advises holders of water rights on the Nez Perce Indian Reservation that the Tribe has cross filed water rights claims on all springs existing on what was formerly the reservation circa 1855. They are claiming the right to 50 percent of the water from these springs. If this stands, under the previous definition of senior water rights, the Tribe's rights would probably be ruled senior, as they are basing their claim on language contained in the treaty of 1863. Therefore, if you were the holder of a sole water right to one of these springs, you would then become the junior water right holder. Under the Constitution of the state, the tribe would get the first available water, and you would get what's left.

Now, let's look at the statutes. I will only cover the highlights. These statutes are all found under title 42, Idaho Code, should you wish to research them yourself.

42-237A states:

The director of the department of water resources in his sole discretion is empowered:

a. To require all flowing wells to be so capped or equipped with valves that the flow of water can be completely stopped when the wells are not in use.

d. To go upon all lands, both public and private, for the purpose of inspecting wells, pumps, casings, pipes, and fittings, including wells used or claimed to be used for domestic purposes.

e. To order the cessation of use of a well pending the correction of any defect that the director of the dep't. of water resources has ordered corrected.

g. To prohibit or limit the withdrawal of water from any well during any period that he determines that water to fill any water right in said well is not there available.

h. To order the installation and maintenance of approved measuring devices consistent with the purposes of section 42-701, Idaho Code.

42-1701 creates the department of water resources and empowers its director, as well as allowing him to delegate his authority to his agents and employees.

This section also states that department personnel may make reasonable entry upon any lands in the state for the purposes of investigations, surveys, etc.

42-1701A sets forth and defines the processes for hearings and appeals of those aggrieved by water board decisions or actions.

42-1701B sets forth and defines enforcement procedures and authorities of the board.

42-1734 enumerates the powers and duties of the water board, which are considerably expanded from those enumerated in the state water plan.

42-1738 states, “The board shall have no power or authority to do, and shall be and is prohibited from doing, any thing or act which would modify, set aside, or alter any existing right or rights to the use of water or the priority of such use as established under existing laws, except where the board acquires the consent of the owner or exercises the right of eminent domain as herein provided.”

42-1766 further defines and sets forth the appeals process for water rights holders.

42-1805 further defines and sets forth more duties of the director. Of particular note is section (8), which reads, “To promulgate, adopt, modify, repeal, and enforce rules implementing or effectuating the powers and duties of this department.” This, in effect, gives the director carte blanche authority with no oversight. In other words, he becomes a water czar.

By creating a water czar, the legislature has opened the door to arbitrary actions by a single individual, or by those acting under his authority. Under the statutory appeals process, appellants must first proceed through the water board, and then the district courts, and so on, up the appeals chain. This is a process that denies due process (due to the costs involved) to many small water rights holders.

If the state claims primacy over all waters in the state, then the state supreme court should retain original jurisdiction. That way, any appeals of water rights would proceed directly to the Supreme Court. There should be provision for hearings to be held prior to pending water board actions, rather than after them.

As a possible scenario, let's consider the following:

If the state agreed to re-adjudicate over 80 percent of the state's water rights in order to avoid litigation, would it not seem logical that it will curtail the irrigator's rights to avoid litigation in the suit filed in August 2001? Would it then not follow that other suits could be filed anywhere within the state? Would the state then curtail other water rights to avoid litigation? Where does it stop?

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Author commentary:

The answer is that it stops when we get back to private property rights as defined in the state Constitution. When water rights holders are fairly compensated for any deprivations or takings of water rights, we will have balance again.

The state legislature must address and correct this issue immediately. If they do not, the citizens of the state must do so through the initiative process. This will put considerable undue burdens upon the people of the state to assure that their will is done, but if the legislature will not act, we have no choice. I, for one, would hate to think that the people of Idaho would be so complacent as to re-elect any legislator who refused to act upon the will of the people.

It seems as though special interest groups with considerable bankrolls have the legislature's ear at present. It's time that the citizens of the state demand to be heard and have their will done. Under our wonderful system, government only exists at the consent of the governed. I urge you, the governed, to raise your voice and either grant your consent or deny it to our governing bodies. Do not, I beg you, grant tacit consent to them by being silent or apathetic. I grant you, that being involved takes much time, effort, and expense, but the results of not being involved are far more costly indeed. It was once said that our nation would not die with a bang, but with a whimper. Are we at that stage now? I pray not.

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Mr. Lawson lives in Grangeville, Idaho. He is the Vice-President and Northwest editor for Watchmen On the Wall, LLC, a conservative information and watchdog group headquartered in Stites, Idaho.

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