Protection from Forfeiture and Non-Use

The best way to protect your water right may seem obvious, but it is worth stating.  The best way to protect your water right is to use it in accordance with your license or decree, and anytime you change your use, get approval through a transfer with the Idaho Department of Water Resources.

If you do not use water in accordance with the terms of your license or decree, your water right may be subject to partial or full forfeiture.  Under Idaho law, forfeiture may occur when a water right, in part or in full, is not used for five consecutive years.  Idaho Code § 42-223.  Forfeiture could potentially apply if you are irrigating fewer acres than are authorized under your right, or if you have changed the purpose of use for which the right is authorized (for example from irrigation to aesthetic ponds).  These are just two examples of how forfeiture could potentially impact your water right.

The reason that a water right may be subject to forfeiture is Idaho's requirement that water be put to beneficial use.  If beneficial use is not occurring, the water that is not being put to use is subject to appropriation by junior users.

A water right transfer can be filed with the Idaho Department of Water Resources to change the elements of your water right to comport with your present beneficial use.  Information on water right transfers can be found on the Idaho Department of Water Resources' website: Transfers - Idaho Department of Water Resources.

Water that is not being used can also be protected from forfeiture by leasing it to the Idaho Water Resource Board's Water Supply Bank.  Idaho Code § 42-223(5).  The Idaho Water Resources Water Supply Bank is managed for the Board by the Idaho Department of Water Resources.  Information on the Idaho Water Resource Board's Water Supply Bank, including current pricing, can be found on the Idaho Department of Water Resources' website: Water Supply Bank - Idaho Department of Water Resources.

The attorneys at McHugh Bromley, PLLC are skilled at assessing water use and coming up with solutions to protect your water rights from forfeiture and appropriation by junior users.