Sweeping federal water right claims on N. Idaho water resources

In early April, water rights holders and claimants in Idaho Water Basins 96 and 97 (which together cover almost all of Bonner County and parts of Boundary and Kootenai counties) received a notice from the Idaho Department of Water Resources.  

The notice outlined some very broad claims by the federal government on our water resources as part of the state’s Clark Fork-Pend Oreille River Basin Adjudication. The adjudication process began in 2021 and is an outgrowth of a lengthy statewide re-adjudication of water rights that began in the late 1980s in the more arid parts of the State where water rights were more hotly disputed.

Water rights in Idaho, as with other Rocky Mountain states, are governed by the concept of prior appropriation. This means the earliest valid user who puts water to beneficial use has priority, and rights that are established later are served only after senior priority rights are met. In short, this means “first in time, first in right,” where the priority date of a water right is all-important. The statewide adjudication process is meant to establish a clear chronological record to resolve disputed claims. There have been significant and consistent U.S. Acts of Congress and federal laws since the 1800s recognizing that water is a state-administered resource. Federal water-right claims may be adjudicated in comprehensive state adjudications under the McCarran Amendment, although federal reserved rights arise under federal law. Idaho’s Constitution makes its authority over our water resources clear.

The 71 claims recently announced include eight by the U.S. for the Forest Service and 15 by the U.S. for the Bureau of Land Management. The priority dates in these recent claims reach way back in time: 1898/1900 for the USFS; and 1926 for the BLM.  This means that the federal government seeks priority dates senior to most water rights holders, many of whom have held water rights in the same basins for generations. There are very few private water rights in basins 96/97 that pre-date the USFS’s claims now asserting priority dates in the years 1898 and 1900 (first in time, first in right). 

The legal framework for the federal government essentially backdating its claims by a century to among the earliest of priority water rights has been used in other water rights claims but has also been successfully challenged and curtailed in the past. The USFS uses the establishment of Forest Reserves via the Organic Administration Act of 1897 as the basis for its eight claims (received by IDWR in 2023). The Organic Administration Act established Forest Reserves to improve and protect the forest, for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber. In United States v. New Mexico (1978), the Supreme Court narrowly limited the USFS’s implied reserved water rights to securing favorable water flows and furnishing a continuous supply of timber. However, the recent USFS priority water rights claims in our basins are for a broader list of purposes.

Following are some illustrations of the expansiveness of federal claims, as well as apparent inconsistencies in the IDWR’s application of its adjudication mandate for federal versus non-federal claimants:

• It is unlikely that any other water claimant would be successful in asserting an 1800s or early 1900s priority date in the 2020s (as the federal government is doing); yet many private water users initiated claims and complied with then-existing state filing and appropriation requirements as far back as the late 1800s.  

• Federal Water Source and Place of Use claims are broad to a degree not seen in other claims.  For example, two of the USFS claims indicate a water source of: “All streams, springs, lakes, water bodies and existing wells on National Forest System land in the Priest River Basin ultimately tributary to the Priest River and the South Salmo River draining into Washington.”  Another two USFS claims assert priority over “All streams ... on national Forest land ...  in Basin 96.” Many surface water rights on private lands in these vast areas could now theoretically be impaired by these federal claims. 

• Four of the USFS claims cite a Place of Use of: “Any National Forest System Land in Idaho.” This maximally broad, statewide use claim is not typically seen in private claims or rights, which are specifically mapped. 

• Four of the USFS claims only list points-of-diversion down to the section level; whereas the IDWR requirements for other claimants are generally much more precise (an exact point on a map or much smaller identified location). IDWR personnel indicated that the overly large, section-level PODs were the reason they omitted these PODs on their Adjudication Claim/Recommendation Right Report. I’m not aware of the IDWR granting other claimants the accommodation of not registering sufficiently detailed PODs. Additionally, the IDWR left the Water Source and Place of Use fields blank in their public registration data for these claims, instead putting them in a somewhat catch-all “Conditions” field.

• Unlike many seasonal irrigation rights, the USFS claims are for a maximally-flexible year-round period of use.

• The USFS and BLM claims were filed March 3, 2023. Despite being filed more than three years ago, affected water-right holders and claimants were not notified of these Federal claims until very recently and were then given less than three months to object (by June 25, 2026). 

The federal government is using the IDWR to catalog and thereby legitimize sweeping “first-in-time” priority over our area’s water resources. Whether intentional or not, they are exploiting a gray area that exists between long-established state water rights management (including for federal water rights) and a very broad interpretation of narrow rights reserved for federal lands under federal law. While the IDWR and Idaho courts have adjudicatory authority over these claims, IDWR’s recent notice about the federal claims says: “The IDWR does not investigate or make recommendations for water right claims based on federal law” and “IDWR has not made, and cannot make, any determination about whether the federal claims affect your water use.” The IDWR has apparently stepped aside.

This situation illustrates an unfortunate double standard on two government fronts, favoring or at least acquiescing to expansive federal claims over longstanding local, private claimants to state water resources. 

For more background or to research claims, see the CFPRBA page on the Idaho Department of Water Resources website (idwr.idaho.gov/water-rights/adjudication/cfprba. The deadline for objecting to the federal water rights claims is June 25. The form and instructions to file an objection to the Federal claims can be found at the adjudication website (cfprba.idaho.gov.)

JAMES IDE 

Priest River