Idaho Law Blog
By: T.J. Budge
The Idaho Constitution was amended in 1964 by the people of Idaho to provide for the establishment of a “Water Resource Agency,” now known as the Idaho Water Resource Board, with “power to formulate and implement a state water plan for optimum development of water resources in the public interest.” Idaho Const. Art. XV, § 7. The Board has advanced this objective in part through development of the Idaho Water Supply Bank. The Bank is a mechanism whereby unused water rights can be temporarily deposited or “leased” into the Bank and persons needing water can withdraw or “rent” water out of the Bank.
The process of depositing and withdrawing water from the Bank is purely administrative—it all happens on paper. The Idaho Water Resource Board maintains a set of forms that must be be used to lease water into or rent water from the Bank, and employs staff to process the applications.
Anyone who rents a water right from the Bank must pay a rental fee. Most rentals pay default rental rate determined by the Board, but it is possible for two parties to enter a private rental agreement with a different fee.
A major advantage of placing unused water rights into the Bank is that they are protected from forfeiture. Under Idaho Code section 42-222(2), a water right that is not used for five consecutive years is forfeited and lost. However, Idaho Code section 42-223 prescribes several exceptions to this rule, one of which is placement of the water right into the Bank: “A water right shall not be lost or forfeited by a failure of the owner of the right to divert and apply the water to beneficial use while the water right is placed in the water supply bank or is retained in or rented from the water supply bank.”
The Idaho Water Resource Board has also authorized several Rental Pools which enable owners of water stored in certain reservoirs to rent surplus storage to others. Unlike the Water Supply Bank, Rental Pools are regulated by a local committee empowered to create its own rules. These rules can be complex and arcane, but provide an important avenue for meeting dynamic water demands.
The Idaho Water Supply Bank and Rental Pools are valuable tools that may be used in a wide variety of ways to meet water needs in Idaho