Elements of A Water Right
When there are administrative restrictions on new rights from the same source, existing rights suddenly becomes quite valuable. Many new users must purchase their right from an existing user and change one or more of its elements via a transfer process. These elements include; source, volume, point of diversion, period used, place used, purpose used and, important to our discussion, the priority date.
SOURCE
Source describes the place from which the water originates. For surface water rights this is a river, stream, reservoir etc. Other rights may describe the source as groundwater. What is notable of this element is that it may not be changed in a transfer.
VOLUME
Volume is merely the amount of water that may be diverted over a set period of time. In Idaho, the standard of measurement is cubic feet per second, or CFS. Volume might change to accommodate a mitigation plan, if a portion of a right is being transferred or some other changes in nature of use or consumptive use requires an adjustment to the rate at which water is delivered. In a transfer proceeding, rate is static or reduced. A water right must not be enlarged because of a transfer.
POINT OF DIVERSION
The point of diversion (POD) is the location where the water is taken from its source and channeled to its place of use; it may be a particular head gate on a flow of surface water or the location of a well.
PERIOD OF USE
Period of use refers to the time or season the water may be diverted under a right. Agricultural rights typically run from April until October. Commercial use rights or municipal rights run year around.
PLACE & PURPOSE OF USE
The Place of use refers to the physical location where the water is applied. Purpose of use refers to irrigation, stock-water, commercial use, municipal or domestic use.
PRIORITY
The final element of a water right is its Priority Date. Idaho is a prior appropriation state. Here, the date water is first put to beneficial use becomes extremely important. In a time of shortage, a senior right is entitled to be made full before a junior right may appropriate water from the same source. The Supreme Court formerly recognized this doctrine in 1936.
Each of these “Elements” can be legally significant to a particular market transaction under consideration. The elements give a water right value in times of moratorium or shortage. The earlier the priority date the more sought after and valuable a water right will be. This is because a right with senior priority can implement a water call over the users with rights having “junior” priority dates. The particular source of a water right and the prescribed rate of delivery will affect the amount a holder can demand. The easier a right is to transfer to a new place of use, the delivery of a desirable quantity at an acceptable rate, and the seniority it holds over surrounding rights, the more valuable it becomes.
If you have questions about your water rights and would like information about their transferability, contact us!
Click to learn more about WATER MARKETS
Sources:
"Idaho Water Resource Board." Idaho Department of Water Resources. N.p., n.d. Web. 04 Apr. 2015.
<http://www.idwr.idaho.gov/waterboard/WaterPlanning/CAMP/ESPA/>.
See Robert Jerome Glennon, Unquenchable (Island Press 2010).
Fereday, Meyer & Creamer, Water Law Handbook: The Acquisition, Use, Transfer, Administration, and Management of Water Rights in Idaho. Givens Pursley (2013).
Peter Culp, Robert Glennon & Gary Libecap, Shopping For Water: How the Market Can Mitigate Water Shortages in the West. Hamilton Project (2014).
See City of Pocatello v. Idaho, 152 Idaho 830 (2012).
Barton H. Thompson (Jr.), John D. Leshy & Robert H. Abrams, Legal Control of Water Resources (W. Academic Publ'g 2012).
