The water right rule in Idaho, both before and since the adoption of the Idaho Constitution, is that the first in time is the first in right.
The constitutional method of appropriation generally requires an actual diversion of water in order to obtain a water right. However, no diversion from a natural watercourse or diversion device is needed to establish a valid appropriative water right for stock watering.
For example, a stock watering right may have been established in watercourses on federal lands simply by applying the water to the beneficial use of watering cattle. Even if a cattleman did not understand, or intend to create a water right, a water right might be established simply by watering livestock in the springs, creeks and rivers on the range that cattle use for forage.
While many cattleman in Idaho may presume to have stock watering rights, it is important to establish and protect those rights with the Idaho Department of Water Resources.
The federal government has attempted to claim stockwater rights on federal lands even though it does not own or graze cattle on those lands. Idaho Courts have denied those attempts.
In addition, the Idaho legislature is currently considering a bill which would prohibit the federal government from obtaining stock watering rights in the springs, streams and rivers on federal land unless the federal land owner owns livestock and puts the water to beneficial use.
If an agency of the federal government does obtain a stock watering right, that water right could not be utilized for any purpose other than the watering of livestock.
Know the law of the land.
