The Case of the Disappearing Pond Water
My world view has been challenged over this last year. The shifts have been brought about, 100% from neighbor interactions. We only have three neighbors. One is a wonderful family that we adore and love having as neighbors. I think they are honestly the only reason I have been able to stay sane through these other situations. The other two, have been an education. Really, there are only two direct neighbors to us. But one other family, who lives a ways down the road, has directly impacted us over the last year, too. So they are honorary direct neighbors.
I want to take some time to write about what we have been going through because it’s worth talking about. It’s been hard but not totally unexpected when dealing with the whole part of moving to rural Idaho. Rural Idaho has a redneck reputation for good reasons. It’s been a dramatic realization for us though. I now see just how small and curated our old social bubble, and world view, has been. For the most part, the people we saw and interacted with in Boise were just like us with only small variations. That has certainly not been the case since we moved to Moscow.
I can tell, this process is going to need to be broken into many different posts over the coming days.
I’ll start with the easy one.
Our pond drained over winter. I mean, it sounds like a big deal but just stay tuned… the other parts are a lot harder to handle.
This pond is a big part of what attracted us to this place. It just up and left. Gone.
During the purchase process we found aerials of the pond that dated back to the 1930’s. I have no doubt this pond is over 100 years old. Yet this last year, it just disappeared, almost completely. Turns out there is a marker stake in the center that’s about 4 foot tall. At it’s lowest point this winter, that stake was poking a ways out of the water. It also turns out the pond, when full, is approximately 25-28 feet deep (that’s good to know and one of the silver linings of this experience).
When we bought the property, the whole northern part of the state was going through the adjudication process (formally defining water rights). That process ended before we finalized our sale. We looked into it and were told there won’t be an issue if the pond was made before 1970. That was the magic age where water rights were a given if we could prove it was that old. There was a lot of paperwork with our particular parcel. The state was buying a portion of it at the same time. Either way, we set water rights aside knowing the pond was old enough. We could cross that bridge when we got there.
Fast forward to this winter
Our pond just… emptied. Our ‘good neighbors’ were concerned because, in the 20 years they have lived here, it’s never even approached those levels of low.
Then, I remembered the new neighbor down the road had contacted me earlier in June to see if it was a septic pond. I thought it was a weird and somewhat random question as a first contact, but sure, let’s talk about poop. It’s not a septic pond, but that was a common thing, especially rural and older places. He contacted me because ‘it was leaking’ and he didn’t want his kids getting sick. He said there was a spigot that was stuck on and/or leaking. There was also an always wet spot that he figured was another leaky pipe. He had been doing a lot of work to get his area set up. I figured he would fix it and move on with life and I didn’t think much more than that about it until several months later when it was disappearing entirely.
I reached back out to this neighbor to see if it was still leaking or if he was able to fix it. He stated that he didn’t do anything with it because he ‘wasn’t sure it was his responsibility’… sigh. He had also since decided that it was a ‘natural spring’, not a leaky pond, despite our conversations about the disappearing pond. Then he also slipped in that he has water rights to our pond so I cannot just cap the spigots. I was just trying to get to the bottom of it so I could solve it. It became clear he was ready to gear up for a legal fight if it got there.
Water rights are a big deal here with a big history
The legal onus was on him to prove water rights but he wouldn’t produce any documents saying he had them. He’d simply say ‘it’s not a priority for him right now’ and then he would continue to block my efforts to stop the leak by claiming he had rights. Meanwhile the pond shrunk lower and lower.
I set off to researching his parcel to see what I could find. My sales documents specifically stated there were no water rights from the pond. The county officials were very helpful in my research. For the most part, officials have been wonderful to work with through ALL of our neighbor experiences. It’s the individuals that have provided hard times.
I found some old paperwork. It turned out that, back in 1990, an irrigation easement was given from the pond to a trailer house neighborhood that was then located on what is now his property. It was given in exchange for an access easement to our property for farm equipment. That easement was vacated in 2000, when the trailer park was sold. While the access easement was specifically vacated, the irrigation easement was not specifically noted, even though it was clearly a tit-for-tat scenario. I ended up speaking with the previous owner of the trailer park who had vacated that easement and he clarified that yes, the irrigation easement was long since vacated with it and had not been used in over 20 years. He did say that the infrastructure was left behind because it was just easier that way at the time.
Fast forward to 2020
This new person moves up his family from California. His professional specialty, water quality and rights. He believed the irrigation easement to still be in tact and was giving the impression he would fight for it. I was unprepared to go up against him legally. Both financially and for these other emotionally charged situations I will detail in coming posts about our other neighbors. I simply didn’t have the emotional energy for it. I just wanted to stop the draining.
The county employees helped me by pointing out that in Idaho, there is a law about if an irrigation easement is not used in a number of years (some sources say 2 years, some say 5, I think it depends on the situation) it is automatically vacated. Helpful but only if it goes to court, which I am trying to avoid. I could easily prove that it was not in use much longer than required but my short term solution was to just try to stop the draining. I had tired to talk it out directly with the neighbor and find a solution that didn’t go anywhere. He acknowledged a broken spigot (that wasn’t broken before he moved in) but was still more concerned about his future rights while presently draining our pond.
I reached a point that I just wanted to just go rogue and cap the line, if only for the winter. The goal was that the pond wouldn’t drain far enough to kill all the fish (it may have already been too late for that). The problem with going rogue is that the state bought the lower part of the parcel in our sale and that is where I would need to dig in order to cap the line. So, I looped them in on the conversation to ask permission for digging.
Working with the state
Much to my surprise, state representatives heard me out and agreed, something was going on aside from the crazy drought year we had. They knew nothing of this old easement either as it was not on their purchase contracts. Recognizing the need, and probably trying to avoid some liability, they offered to come out and dig it up themselves. They would either cap it or at least put a valve in until this dispute can be figured out.
Having already had some run-ins with this particular neighbor, they also involved their legal team. I sent over all the research and documents I had dug up on the situation. They agreed that the irrigation right is probably not active, as reported to us. Still, they took the path of least resistance, putting a valve in until construction on their highway project is underway in the coming years. Then they will figure it all out in finer detail. I was ecstatic that they were willing to do the work. Watching them do it, it was a much bigger task than I was expecting. Their crew had it done in a few days though and were lovely to chat with about the coming project.
Future water rights
In the meantime, since this issue is still somewhat ongoing, I felt like I had to go back and secure those water rights legally. I filed a late adjudication request to permit the water rights to a full pond (~$102). Through the process, they make you outline the use, gallon flows and a bunch of figures. Since we don’t actually irrigate a calculable crop with the pond water, I registered it to the wildlife.
I did that back in November or December. On Tuesday this week I logged into Zoom, how they are handing these court cases these days and sat through an incredibly dry meeting in order to answer questions. Ultimately moose (and other wildlife) were granted ownership of our pond water! I backdated their claim to 1964, which was the earliest aerial I could find this time. My goal was anything before 1990. What that means is, if this neighbor wants to fight about water rights in the future, my legal claim backdates further than his. So mine gets filled first. He will have an irrigation easement if, and only if, the pond is at full capacity.
I have no intentions of being a hard ass about it, but I got the inclination that he might. So I wanted to cover our bases and providing a legal paper trail to protect the pond water. Legally defining it as a water source for a wildlife corridor was the appropriate step for that. I’m thrilled it has officially been granted!
Fortunately, we have been able to talk since to this neighbor and I really don’t think he’s out for a fight with us. I think his goal is to eek out some money from the state if they want to take away ‘his irrigation right’ with this highway project. So the onus now seems to be on the state and I have armed them with all the research their legal team needs to handle it. Honestly, neglect of the service of the infrastructure is likely enough to get the whole thing dismissed. If it comes to that.
The path of least resistance may in-fact be piping him a new line from our pond under the new highway project. The state has been clear that they will make sure I have the valve in my control and located on our property if it goes that way. And it will be lockable. That’s a happy solution for me because again, I don’t mind if the neighbors irrigate with the pond water. It’s something like 4.5 million gallons of water, it’s enough. It’s just not ok to let the whole thing run downstream if you can’t be bothered to prioritize taking care of the responsibility.
All’s well that ends well
All in all, it was a stressful situation to navigate. It was certainly overcomplicated by too many legal processes. Much of life these days is. I am happy it enabled me to make the connections it has: with our good neighbors, the state, the water board and county officials. I tend to feel like those relationships are important and they may build through time. Also, I’m glad that, at least so far, things have fallen to our favor.
The best news of all is that the pond is completely full again! I was sure it would take 2-3 years to fully fill but we have had a really wet spring. About 2 weeks ago, a small stream started trickling out the overflow, signifying it is topped off completely! And, the neighbor caught a fish, so they didn’t all die! Denver could not be happier to have his water-dish topped off. We hope to be seeing more and more wildlife too. We’ve already caught glimpses of our favorite moose!