Barron v. Idaho Dep't of Water Res. (in Re Transfer No. 5116) - 135 Idaho 414, 18 P.3d 219 (2001)

Rule:

In determining whether or not to approve a water transfer, the director of the Idaho Department of Water Resources is instructed to examine all the evidence and available information, including the watermaster's recommendation, and to approve the change in whole or in part if no other water rights are injured thereby, the change does not constitute an enlargement in use of the original right, the change is consistent with the conservation of water resources within the state of Idaho and the change is the local public interest.

Facts:

Appellant applied to respondent department of water resources to transfer a water right, proposing to divert part of the original right at a location upstream from the licensed place of use, and divert the remaining amount at a downstream location for use on another tract. Respondent denied the application, finding that appellant had not presented sufficient information to establish the historical consumptive use, and that there were potential injury other water users. The district court affirmed. Appellant sought review.

Issue:

Did the respondent department of water correctly deny appellant’s application to transfer a water right? 

Answer:

Yes.

Conclusion:

The court affirmed the order denying appellant's application, holding that substantial evidence supported the finding, including recommendations against approval by a department agent and the local watermaster. This was the case despite the fact that no members of the public voiced any objections. In particular, the movement of the water right to another tract would have resulted in an illegal enlargement of the right. Further, because the licensed place of use historically had been irrigated to some extent by another party's groundwater right, appellant took the surface right subject to the groundwater right's utilization.