## Facts

- Keith Ferrin Jenkins owned irrigated farmland in Clark County, Idaho, with two adjudicated, appurtenant water rights under a federal decree: 2.4 cfs from Cottonwood Creek and 3.2 cfs from Ching Creek.
- Jenkins’s land lay east of Ching Creek; Cottonwood Creek ran generally parallel to Ching Creek, with a set of channels between them.
- Jenkins asserted that his Cottonwood Creek water historically flowed through these channels into Ching Creek and that he diverted both rights at his Ching Creek diversion works.
- In 1978, Jenkins applied to the Idaho Department of Water Resources (DWR) to change the point of diversion for the Ching Creek right to a new headgate.
- During the transfer proceeding, DWR records indicated the decreed Cottonwood Creek diversion point was not on an existing channel; Jenkins amended his application to also change the Cottonwood Creek diversion point to Cottonwood Creek.
- After investigation and hearing, the DWR director found (among other things) that the streams were fully appropriated or overappropriated, Jenkins had not diverted under the Cottonwood Creek right for about 18 years, and Jenkins’s diversions from Ching Creek had not exceeded the 3.2 cfs decree.
- The director denied the transfer application; the district court affirmed, finding Cottonwood Creek did not regularly flow into Ching Creek as claimed and concluding the Cottonwood Creek right was forfeited for statutory nonuse.

## Issues

1. Whether DWR has authority, in a water-right transfer proceeding, to determine abandonment or forfeiture of the right proposed to be transferred when deciding injury to other users or enlargement of use.
2. Whether Jenkins’s Cottonwood Creek right was forfeited under Idaho’s statutory nonuse rule due to approximately 18 years of nonuse.

## Decision

- The Idaho Supreme Court affirmed the district court’s judgment upholding DWR’s denial of the transfer application.
- The court held that DWR may consider and decide forfeiture or abandonment in a transfer proceeding to determine whether a proposed transfer would injure other water users or enlarge the right.
- The court held the Cottonwood Creek right was forfeited for nonuse exceeding the statutory period; therefore, no Cottonwood Creek right existed to transfer.

## Legal Principles

- In evaluating a proposed transfer (including a change in point of diversion), DWR may determine the existence, extent, and continuity of the water right, including forfeiture or abandonment, to decide injury to other users and whether the transfer would enlarge use.
- Under Idaho’s nonuse forfeiture statute, an appropriative water right is forfeited if not put to beneficial use for five consecutive years, absent applicable statutory exceptions.
- A claimant cannot avoid forfeiture by asserting indirect “use” inconsistent with hydrologic facts and diversion evidence showing no exercise of the asserted right.

## Conclusion

The court upheld DWR’s denial of Jenkins’s requested change in points of diversion, ruling that the agency may decide forfeiture within a transfer proceeding and that Jenkins’s Cottonwood Creek right had been forfeited by prolonged nonuse, leaving no valid right to transfer.


Jenkins v. State, Dep’t of Water Res., 647 P.2d 1256 (Idaho 1982)