Legal Insight. Business Instinct.

Droughts and rain dances

This year has been a record year for lack of rainfall. Eastern Idaho has been affected by drought conditions with rainfall falling behind the yearly average. Even the recent rain and snow has not relieved the drought.

Fortunately Eastern Idaho is blessed with mountains where snow tends to fall with abundance in the winter. When that snow melts in the spring much of it runs down our rivers and streams, and much of it is captured in reservoirs.

Thanks to the hard work and industry of Eastern Idaho pioneers much of that water is diverted into canals and ditches where we are able to use it to irrigate our crops throughout the summer.

However, what happens when there is not enough water in our streams and rivers? What happens when the drought limits the amount of water in our reservoirs?

Idaho law states that “as between appropriators, the first in time is the first in right.” Idaho Code § 42-106. What this means is that the first person to divert water and put it to beneficial use has priority in times of shortage over the next person to divert water and put it to beneficial use.

Most water rights have a “priority” date that establishes when water was first appropriated. For example, your water right might have a 1920 priority date. Your neighbor might have an 1899 priority date. If there is not enough water to go around, you will be cut off from water before your neighbor.

As the amount of water decreases due to drought, those with the newest priority dates will be the ones to first lose their water. Those with the oldest priority dates will be the last to lose their water.

Meanwhile, we all need to pray for moisture and do a rain dance. Be advised, however, that Idaho even has a law for that. Every person intending to conduct within the state operations to artificially produce rainfall is required to register with the department of agriculture of the State of Idaho. Idaho Code § 22-3201. Go figure.

– Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171. Or lance

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