# Water rights vs. overflowing creek



## Putawaywet (Oct 28, 2013)

Greetings everyone,

I've been researching water rights and I know they can sometimes be a complicated issue, especially from state to state, but I'm having some difficulties finding an answer to a specific question I have. 

I own 22 acres of Idaho property that has approx 1200' of moderate sized year round creek that runs right thru the middle of it. I have no water rights to take water from this creek. I understand that part just fine. However, every spring when the rains come, the creek overflows and floods out a good 10' on either side in numerous places. These flooded areas take a good month or two to dry out depending on the weather.

Property is relatively remote and neighbors are sparse, and in talking to some of them about the flooding it seems most everyone starts off by saying that while I'll probably be told that making any major changes to the creek is legally a no-no, most just go ahead and deepen/widened their part of it or berm'd up the banks to solve their flooding issues. That seems reasonable and I will most likely follow suit to alleviate the bulk of my flooding issues.

However, when I asked if any of them have ever tried to divert the overflow to something like a pond I was met with questioned looks. 

To my knowledge, there is no ordinance that says I can't have a pond on my property. And my property is zoned as light commercial/agricultural. So if the stream naturally overflows to a low spot on my property and I help things along a little by digging that spot out so it holds more water for a longer period of time, and then I USE that water for irrigation later on in the year, have I violated some kind of water rights issue here? 

Many thanks. 

Brett


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## copperkid3 (Mar 18, 2005)

so can't advise on what you 'should' (or should not) do.
However, I'm more of the opinion that it's usually better
to ask for forgiveness, than to ask the gooberment for 
permission on what to do on one's own property!

Having said that, I did find this interesting site that may
point you in the direction for whichever way you feel led to go....

http://www.idwr.idaho.gov/WaterManagement/WaterRights/WaterRightsEstablish.htm


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## dizzy (Jun 25, 2013)

I'd really look into it carefully if I were you. I have read of people getting permits to build ponds on their property, then along comes some other government agency that claims they weren't allowed to, and fines them thousands of dollars a day.


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## Tomthearcher (May 4, 2013)

Putawaywet said:


> Greetings everyone,
> 
> I've been researching water rights and I know they can sometimes be a complicated issue, especially from state to state, but I'm having some difficulties finding an answer to a specific question I have.
> 
> ...


First let me say that I miss living in Idaho more than I have ever missed living anywhere. It's not for the faint of heart and does present many challenges and the Winters there can be more than a little harsh. Not to mention it can snow any of the 365 days per year LOL. BUT, all that said, there are a couple things that come to mind. 

IF you want to harness the abundance of water that spills out of the natural waterway, that solution is fairly simple. You can build a pond on your property and at present you don't have to some governmental agency's permission to catch run off or rainwater. I am not sure about you not being able to pull water from the stream however to water your gardens. But that is beside the point. 

Check your local AND state laws concerning flowing water rights of way. In other words, just how close you can get to or have to stay back from the actual canal of the creek, river or stream. Then do a study if you havn't done so already to determine how the overflow from the stream actually moves on your property. Since there is virtually no such thing as a totally or perfectly level piece of natural land, a small canal or drainage trench that takes the flood waters and channels it to a catch pond is an easy fix. Then IF, you are not saddled with excessive ordinances or permit debacles, depending on how deep, wide and continuous you want your catch pond the grading required can be a walk in the park and very easy task.

While living there in Southeast ID through the decade of the 90s, I saw literally hundreds of private well pumps scattered all throughout the countryside where the small farmer would be pulling water out of the canals to water their gardens, pets and even small herds of animals. So double check with the state and local entities and I think you will be pleasantly surprised at your options.


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## painterswife (Jun 7, 2004)

I live in Wyoming but our company has dealt with building ponds and making changes to waterways in Idaho.

If you have no water rights you can not take water from the creek. It is a very big deal and don't let anyone tell you different. All those locals will turn you in without a second thought the moment you cross the line and they don't like you.

Second, making changes to waterways or building ponds without all the appropriate paperwork and permits can lose you your home. You might get away with it for a day or years but it only takes on person to turn you in and you will be in for a world of heat.

My husband's best friend is the person in our State that deals with the calls from neighbors turning in neighbors. (Army Core of Engineers) It ain't a pretty business.


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## Molly Mckee (Jul 8, 2006)

In Washington you can not do what you are proposing. I doubt that you can in Idaho. If you don't have water rights, you can't use the water from the creek to irrigate or anything else. I would ask a good water rights attorney and get all permits before I touched it. Violating water rights could cost you everything you have, and it would always be hanging over your head. Water rights are valuable and people will protect them, even if they are not using the water. Trying to circumvent water rights will come back to bite you, and you are taking some of the value of the rights holders property by taking the water, even if no one is using it. If your neighbors don't stop you they could lose the right to the water.


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## Harry Chickpea (Dec 19, 2008)

I might consider building a small embankment a ways away from the creek to help channel the flow. Of course I would have to find the dirt to make that levee from somewhere nearby and it might cause a depression prone to flooding...


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## Putawaywet (Oct 28, 2013)

Appreciate everyone's thoughts and suggestions. 

When purchasing the property our Agent told us that all the water rights to the creek were adjuticated "years" ago. However, he lives about 12 miles downstream so there is a small chance he wasn't being 100% forthcoming on the matter.

I've looked at the Idaho website before and perused the forms for applying for water rights and at a glance they do seem pretty straight forward... file application defining your need and usage, begin construction on diversion, then file forms showing completion to get signed off. After that is looks like it's just a case of use it or lose it.

We do have a 35gpm well and the restrictions are ridiculously generous for non commercial operation. Although, strangely, the restrictions literally drop to 1/10 the gallons if we become a commercial operation.

Besides the flooding problem the property is very long and narrow and the well is at the extreme upper end. So having a pond midway down the property would make getting water down at the other end a whole lot easier.

Perhaps it's time to take a closer look at obtaining water rights


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## Molly Mckee (Jul 8, 2006)

Getting the water rights would be the right way to go and add value to your property as well.

We had a water rights problem in our neighborhood. The water rights had not been used since 1933, neighbor A had them dated back to 1917, neighbor B decided to use the water, it ended up in court. Lawyers made over $100,000.00, neighbor A retained the rights, but could not reroute the water. Everyone lost but the lawyers.


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## Putawaywet (Oct 28, 2013)

Now you've lost me. I'm not sure how I'm going to devalue a neighbor's property and infringe on their water rights because I'm looking to mitigate flooding on MY PROPERTY by re-routing the flood waters that naturally turn portions of my property into a swamp when the creek overflows during the spring rains? I'm not planning to do didley squat with the water that stays in the creek, just the stuff that overflows and floods my property.

If you're saying that those flood waters could technically belong to someone down stream then they best get their ass over to my place and reclaim their water.




Molly Mckee said:


> ....Trying to circumvent water rights will come back to bite you, and you are taking some of the value of the rights holders property by taking the water, even if no one is using it. If your neighbors don't stop you they could lose the right to the water.


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## painterswife (Jun 7, 2004)

Putawaywet said:


> Now you've lost me. I'm not sure how I'm going to devalue a neighbor's property and infringe on their water rights because I'm looking to mitigate flooding on MY PROPERTY by re-routing the flood waters that naturally turn portions of my property into a swamp when the creek overflows during the spring rains? I'm not planning to do didley squat with the water that stays in the creek, just the stuff that overflows and floods my property.
> 
> If you're saying that those flood waters could technically belong to someone down stream then they best get their ass over to my place and reclaim their water.


They do belong to someone else. Army core of engineers is who deals with changes to the banks of streams and rivers. You can not adjust your banks to take water for a pond or reroute the stream with out approval. You can not even put rip rap in the water to mitigate bank erosion without approval.


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## painterswife (Jun 7, 2004)

You also need to research flood plains. Changes to flood plains may cause damage to those down stream.

For example you fill in a natural flood plain on your property and the neighbor 10 miles down the creek get increases flooding on his property, you are in trouble. Just another of the multitude of reasons you have to do things by the book.


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## unioncreek (Jun 18, 2002)

Why don't you consider applying for water rights to see if there are any available on that creek.

Bob


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## Molly Mckee (Jul 8, 2006)

Putawaywet said:


> Now you've lost me. I'm not sure how I'm going to devalue a neighbor's property and infringe on their water rights because I'm looking to mitigate flooding on MY PROPERTY by re-routing the flood waters that naturally turn portions of my property into a swamp when the creek overflows during the spring rains? I'm not planning to do didley squat with the water that stays in the creek, just the stuff that overflows and floods my property.
> 
> If you're saying that those flood waters could technically belong to someone down stream then they best get their ass over to my place and reclaim their water.


The water does belong to the neighbor who has the water rights. Water rights have value, and if the neighbor doesn't defend them(turn you in) and allows you to use his water he can loose them. That will devalue the the neighbors property.

There are also lots of rules and regulations about doing anything to a riparian zone, from many different agencies. Fines are huge for changing wetlands, and you will be putting it back the way it was. With today's technology, you can not live in a rural enough area to escape detection. There are maps and aerial photo's of everywhere.

If you can't establish water rights, you might be able to buy them from the person that owns them. They can be sold separately from real property in most cases. It would be worth a try.

I know this seems very strange to anyone that lives in an area with plenty of water, but water rights are very serious in the west.
http://www.pinterest.com/pin/create/extension/


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## crazyfarm (Oct 29, 2013)

painterswife said:


> I live in Wyoming but our company has dealt with building ponds and making changes to waterways in Idaho.
> 
> If you have no water rights you can not take water from the creek. It is a very big deal and don't let anyone tell you different. All those locals will turn you in without a second thought the moment you cross the line and they don't like you.
> 
> ...


We've represented a pissed off farmer who got tired of flooding and tried to do something about it. Yeah, criminal charges there. REALLY big deal.

Don't do it OP. Just don't.


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## painterswife (Jun 7, 2004)

crazyfarm said:


> We've represented a pissed off farmer who got tired of flooding and tried to do something about it. Yeah, criminal charges there. REALLY big deal.
> 
> Don't do it OP. Just don't.


 I am always suprised when it is the neighbor they think likes them the best that turns them in.It costs way more to undo what you are not allowed to do.


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## Putawaywet (Oct 28, 2013)

Ok, I think I understand now. 

When my creek overflows when it rains in the spring and floods the low spots on my property, that water must legally sit there until it soaks in/evaporates and not be touched by me because it technically belongs to someone who may have water rights to it. Even though said water left the stream of it's own accord and not by my doing. 

Yeah, you're right, it does sound completely crazy.

Thanks again everyone


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## painterswife (Jun 7, 2004)

Putawaywet said:


> Ok, I think I understand now.
> 
> When my creek overflows when it rains in the spring and floods the low spots on my property, that water must legally sit there until it soaks in/evaporates and not be touched by me because it technically belongs to someone who may have water rights to it. Even though said water left the stream of it's own accord and not by my doing.
> 
> ...


It is amazing when people buy property without knowing all the rules and think we are in lala land when we explain the rules. You need to talk to a few agencies and do a few google searches on the things we mentioned. Look up court cases. While you are at it make sure you don't have any easements and legal irrigation ditches. Sounds like you might be in for some upsetting surprises.


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## Molly Mckee (Jul 8, 2006)

The overflow may well be causing wetlands. Just about every gov't agency including the EPA will have something to say about your changing anything about wetlands. Getting through all the different agency's wetland regulations may be a full time job. 
Don't shoot the messengers, we are trying to help you and save you a lot of money. Your realtor should have made sure you understood all the limitations of water rights before you bought the land. These regulations are a fact of life here but you don't see them outside the western states. You can imagine how surprised our son was when he had a farm in PA and wanted to enlarge his pond, using water from the stream, the town govt. Told him who to have come in with a backhoe and there were no regulations.


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## painterswife (Jun 7, 2004)

Do a search on here about pond and EPA. See what the guy in Wyoming is going through. I never expect anyone to know all the rules. I however think that you should not get upset with us because people are telling you what you might not like to hear.

Water, where it flows and how it effects properties in the Western States is very complicated. You may be able to do exactly what you want but you have to do your due diligence and ask all the right questions first.Leave out one government agencies and you could face serious fines and costs.


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## MichaelZ (May 21, 2013)

If it were me I would do my own research rather than contact anyone from the government - the laws are all there, somewhere online or perhaps at your library. Once you contact the government agency, they might make it a point to have someone "drop in" at your residence from time to time.


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## Molly Mckee (Jul 8, 2006)

The water in the spring is not just rainwater, but spring run off. That is the water that keeps the western rivers flowing. The snow in the mountains melts and feeds the river systems, irrigating the land and sending water to the cities. If everyone along the way diverted the high water in the spring, the west would dry up in a short amount of time. That is main reason behind water rights, and huge fines for abusing them. 
If you can get water rights, I would do that. They will become more valuable all the time. If not, you have a good well, be grateful for that. Violating water rights laws will be a serious problem hanging over your head until you get caught, and you will get caught.


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## crazyfarm (Oct 29, 2013)

Our guy was arrested OP. Arrested and charged criminally because his changing the water to prevent flooding impacted the person who owned that water. Our guy was pretty furious about the whole thing too. He ended up paying out a lot of money to avoid going to jail. I'm simply telling you that is something you could face. I'm sorry if you don't like it.


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## DryHeat (Nov 11, 2010)

I can easily understand how diversion of "apparently" wasted seasonal flood overflow to a new pond could impact everyone with rights downstream. Consider, that floodplain area might be underlaid by permeable soil strata that absorbs much more of the pooled overflow than goes up as evaporation, then "use" that subsurface water pressure to maintain surface flow as well as water table levels all through the stream's impact area downstream. Change that dynamic by, say, digging a pond with a liner you put in, or selecting a spot that doesn't absorb into the stream's subsurface channels, and you reduce the availability to folks downstream with water rights, since much more of the total water being diverted would go out of the watershed as evaporation than happens presently.


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## Danaus29 (Sep 12, 2005)

Here ya go, Wyoming battle over a permitted pond:
http://www.foxnews.com/politics/201...s-fine-for-building-pond-on-his-own-property/

While the state may allow you to do certain things, the federal EPA has some totally different and idiotic views. Here is a link to the state regulations:
http://www.idwr.idaho.gov/WaterManagement/WaterRights/default.htm
But as you can read in the Wyoming case, when the feds have a differing view, it doesn't matter what the state gave you permits for.


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## haypoint (Oct 4, 2006)

Don't get all cranked out of shape when people tell you stuff you don't like to hear.
As for the flooding water. When it floods onto your property, your swamp ends up being a reservoir of sorts. It doesn't all dry up or soak in. Eventually, as the creek water subsides, water drains out of your swamp. Might help if when you read this, you add "belonging to someone else" after the word water.
If everyone built up berms preventing flooding onto their land, extra water would surge down the creek in the spring and then the flow would drastically drop off without everyone's swamp reservoir drainage later on. Sucks to store someone else's water for their use later.


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## haypoint (Oct 4, 2006)

Just as I was thinking that I'm glad we don't have water usage troubles in Michigan, I thought of just such an issue.
A World-wide water bottler bought a chunk of land with a flowing spring on it. They set up all the equipment to pipe away this fresh spring water. It flowed out of their spring on their property. Formerly, the tiny spring flowed into a larger stream and then the river and out to Lake Michigan. The amount of water taken was equal to a city of 60,000 people. As a percentage of water draining into Lake Michigan, it was a very tiny amount. But locals dismissed the fact that we had a decade of lower than average rain, blamed their dry wells on the bottling company. But most of this spring once left the area. Eventually it left the Great Lakes and flowed into the ocean. It was a resource that left the area, bottled or natural flow.
The Governor bent to the will of the people and declared that the state's water couldn't be taken and sold. 
The Company got sick of the harassment and relocated in Evart. Seems a big plastics manufacturing company left town. That business used massive amounts of water to cool the plastic. Massive amounts of city owned spring water.So they are now bottling their water in Evart.
Was interesting to me that people had fits about bottling pure water in Michigan, while the Coke and Pepsi plants used far greater amounts for their products.


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## texican (Oct 4, 2003)

If you don't own them, don't mess with it, unless you're willing to accept the consequences.... Doubtful you can 'get them'... you can 'buy'.... but realize the water rights are usually worth more than the physical land is worth.


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