A Ditch Runs Through It

Ok, I admit it, the fly fishing photo is a red herring.  Idaho is well known for its fly fishing, but it ought to be just as well known for its amazing irrigation systems.  These canals, and the institutions that maintain and operate them, allow thousands of us to live and farm in what was once a rocky desert.

In Idaho’s Treasure Valley, the canal system and farmland that it supports is steadily being moved, buried, and reshaped into HOA-governed slices: many what the New York Times called “a quintessential slice of American suburbia.” Some Idaho associations run irrigation or well systems, so irrigation is a central part of their role.  However, for most suburban HOA-dwellers and boards, this engineering marvel is a scenic backdrop, but not much more. This should not always be the case.

When a developer moves in and builds homes where there was once open farmland, the canals are buried, put in pipes, or put into concrete spillways along major roads.  Sometimes the open canals get attention when a child is tragically swept away, but usually they remain in the background for suburban and urban (sic) Idahoans.

But buried or not, canals require maintenance and care.   Often large volumes of water flow through these arteries.  Roots can catch onto debris and block the flow of water.  Clogged canal pipes can flood and damage homes and property.

Idaho code requires the owners of the canals–irrigation companies–to maintain their canals:

42-1204. Prevention of damage to others. The owners or constructors of ditches, canals, works or other aqueducts, and their successors in interest, using and employing the same to convey the waters of any stream or spring, whether the said ditches, canals, works or aqueducts be upon the lands owned or claimed by them, or upon other lands, must carefully keep and maintain the same, and the embankments, flumes or other conduits, by which such waters are or may be conducted, in good repair and condition, so as not to damage or in any way injure the property or premises of others.

Idaho caselaw has interpreted statute to mean that when a landholder puts a canal into a pipe, the landholder becomes responsible only for any increased maintenance costs.  However, these questions are usually not left to statute or courts.  When a developer seeks to move or bury a canal, the easement-holding irrigation company most likely will require a “license agreement.”  These license agreements are recorded documents in which the developer will take responsibility to maintain the now-buried canal.  The developer, in turn, may pass this duty along to the association in the CC&Rs.

If the CC&Rs of your Association require the Association to maintain a buried irrigation pipe, the Board should have a plan in place to regularly perform this maintenance.  Not only could an Association become liable to downstream water users in the event of a disruption of water, but it could find common areas and private lots swamped in the process.

Jeremy

Some History and Background:

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