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Q: I’m looking at buying a house outside of a city, and it uses water from a domestic well. Am I required to have a water right for that?

A: It depends. A water right is created by “appropriating” it, which means exerting control over water and applying it to a beneficial use. Idaho generally requires a person seeking a water right to follow an administrative process with the Idaho Department of Water Resources requiring (1) submission of an application to make the water appropriation; (2) issuance of a water right permit; and (3) perfection of the permit (once the water is developed) through issuance of a water right license.

The Idaho Legislature has allowed very few exceptions to this administrative process, but there are some. In these situations, obtaining a water right is optional. The most commonly utilized exception is ground water use that fits within the definition of “domestic uses” found at Idaho Code § 42-111.

There are two categories of domestic uses described in this statute. The first category is culinary water for a home and irrigation of up to ½ acre of land associated with the home property, where the overall use of water cannot exceed 13,000 gallons per day.

The second category is a catch-all that allows use of ground water for “any other uses,” but the overall use of water cannot exceed 2,500 gallons per day and a diversion flow rate of 0.04 cubic feet per second.

Even though both categories are defined as “domestic uses,” the second category can include water uses that normally are not associated with the term “domestic” in the residential household sense (such as industrial use).

Importantly, use of water from the same well under the first category cannot be used for multiple homes and still fit under the exception. However, you can share a well with another home, but the collective use at both homes cannot exceed a diversion volume of 2,500 gallons per day, which is the limit under the second category. If the strict parameters under the two categories of domestic use are exceeded, then the statutory exception is no longer applicable and obtaining a water right is necessary.

This means if you are looking at a home outside of a city, do your homework. Find out if there is a water right associated with the home. If there is no water right, make sure the irrigated land does not exceed ½ acre (or if it does, be prepared to stop irrigating some of it). If the well is shared and there is no water right, it is probable that the water use is not legal as it exceeds the parameters of both categories of this domestic exception.

Robert L. Harris is an attorney practicing in Idaho Falls. This column is provided by the 7th District Bar Association as a public service. Submit questions to "It's the Law," P.O. Box 50130, Idaho Falls, ID 83405, or by email to rfarnam@holdenlegal.com. This column is for general information. Readers with specific legal questions should consult an attorney. A lawyer referral service is provided by calling the Idaho State Bar Association in Boise at 208-334-4500.

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