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Shared Wells, Are They Legal In Idaho?

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I’m going to call this a “read at your own risk” article based on limited knowledge of the subject, but I also feel the need to provide the data as it is so much different than what we have historically understood. The topic? Shared Wells.

Historically, multiple property owners have (or maybe thought they had) the ability to share one well with multiple homes. There is/was always a limit as to the number of homes which the Department of Environmental Quality would be involved for water monitoring. A separate entity that controls water in the State of Idaho, The Idaho Department of Water Resources (IDWR) position on shared wells was that most of the water would be returned to the aquifer, and a shared well between multiple homes was really no different than each home having an individual well as long as the usage did not exceed the state’s limitation for water usage for domestic water for each parcel without water rights, 13,000 gallons per day including up to 1/2 acre of landscaping.

Recently, however, an amended Snake River Basin moratorium for issuance of new water rights has created some challenges when it comes to shared well systems. A byproduct was (I assume inadvertently) prohibiting new water rights for shared wells. Since one parcel would be sharing a well with other unrelated parcels, legally, that apparently requires an additional water right with minimum CFS (Cubic Feet per Second) or diversion rate requirement to provide sufficient water to the additional homes. Since new water rights are not being issued, technically, in order to legally have a shared well, these owners would need to find an additional groundwater right that meets the CFS requirements or find a way to mitigate water from other areas, essentially by drying up other acreage.

Historically, many communities and municipalities have been able to share wells, but that would require municipal or domestic water rights. Since water rights are so valuable in Idaho, new developments with shared well systems that are not a part of an existing system or municipal system may become challenging, and that unfortunately trickles down to small systems including one to three homes sharing wells for the purpose of efficiency.

Stay tuned on this topic and (of course) do your own research on this contentious matter.

My data and source for this article was my interpretation of a conversation with an employee at the Idaho Department of Water Resources on September 20th, 2023.

Wetland: What Does It Mean and How Can It Impact My Property?

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***Article Update: Kent Werlin is the Senior Wetland Scientist with Biota Research and Consulting in Jackson, Wyoming. Kent was kind enough to edit my article and provide updated, more accurate information. My disclaimer stands (do your own research), and see the updated article below:

Wetlands are often confused with floodplains and flood zones. Flood zones are not always wetlands, and wetlands are not necessarily located in floodplains, though there are circumstances where either could be true. Flood zones can occur in areas next to large bodies of water or runoff areas and are often considered higher risk when it comes to flooding. However, any property can flood, not necessarily only properties in a floodplain.

Wetlands are regulated by the U.S. Army Corps of Engineers and Environmental Protection Agency under the Clean Water Act. To be considered a “wetland”, an area must meet all of the following  criteria:

1) Wetland Hydrology: To have wetland hydrology, an area must be at least saturated in the upper 12 inches of the soil profile for a period of 14 days during the growing season in 5 out of every 10 years. Active monitoring of hydrology via the use of shallow groundwater monitoring wells and/or wetland hydrology indicators are utilized by wetland professionals to determine the presence of wetland hydrology. These indicators include the presence of surface water, saturation, geomorphic position, oxidized rhizospheres (root channels), a dominance of wetland vegetation, and others.

2) Wetland (Hydrophytic) Vegetation: roughly a quarter of the plant species in the United States grow in wetland areas. To be a wetland, an area must be dominated by facultative or wetter plant species based on the National Wetland Plant List, which designates plant species as upland, facultative upland, facultative, facultative wetland, or obligate wetland. These are described below:

  • Upland – plant species that occur in non-wetland areas 99% of the time and do not indicate wetland conditions (e.g. sheep fescue, sagebrush, western wheatgrass)
  • Facultative Upland – plant species that occur in upland environments 75% of the time and in wetlands 25% of the time (e.g., orchardgrass)
  • Facultative – plant species that occur in wetland environments 50% of the time and in upland environments 50% of the time (e.g. Kentucky bluegrass, common timothy, and meadow foxtail)
  • Facultative Wetland – plant species that occur wetland environments 75% of the time and in upland environments 25% of the time (e.g. Baltic Rush, reed canarygrass)
  • Obligate Wetland – plant species that occur in wetlands 99% of the time. These species are generally indicative of wet areas. (e.g. beaked sedge, Booth’s willow, hardstem bullrush)

3) Wetland Soils: Wetland soils are often referred to as hydric soils. These soils can generally be analyzed by digging a 20-inch deep hole and looking for hydric soil indicators that indicate a high water table and/or periodic saturation within the upper horizons of the soil profile. These indicators include an abundance of organic soil matter, oxidized iron (rust colored) or manganese (purple) concentrations, and others.

Can you build in Wetland?

Wetland areas do require special permits and approvals. But first, they must be identified as wetland, usually by way of what is referred to as a wetland or aquatic resource delineation performed by a properly trained wetland consultant (such as the co-author of this article, Kent Werlin, the Senior Wetland Scientist with Biota Research and Consulting) and following the wetland delineation protocol approved by the Army Corps. Wetlands in Teton County are subject to both federal and local (county) regulations which differ in their requirements.

If a property in Teton County, Idaho shows indications of wetland presence based on the nationwide National Wetland Inventory (NWI) mapping (can be viewed via the Teton County GIS Mapserver), the county will generally require a delineation before approving subdivision or issuing grading or development permits for the subject property. Under current county regulations (Teton County Land Development Code 2022), the county requires either a 50′ or 100′ development setback on wetlands, depending on the level of analysis conducted. If a site-specific wetland delineation is conducted, the county will place a 50’ development setback on all wetlands delineated by a wetland professional and approved by the Army Corps. If there is no site-specific wetland delineation conducted, then the county falls back on the NWI mapping and requires a 100’ setback on NWI mapped wetlands.

At the federal level, the Army Corps requires a permit application for the placement of fill material (e.g., rock, gravel, concrete, soil, etc.) in jurisdictional wetlands. The Army Corps has a suite of streamlined Nationwide Permits for activities that impact up to 0.5 acres of wetland. If wetland impacts exceed 0.1 acres, then the Army Corps requires a Compensatory Wetland Mitigation Plan that involves the creation of new wetlands or enhancement of existing wetlands to compensate for development-related wetland losses.

A recent supreme court case (EPA v Sackett) decision has put the jurisdictional status of some wetlands at the federal level in question. The Army Corps is in the process of modifying their technical guidance for determining jurisdictional status based on the outcome of this court case and should be issuing guidance in the coming months. While it may be possible to impact wetland areas with the proper permits, it is important to remember the reason that these regulations exist….to protect wildlife, habitat, and waterways, often considered a key cornerstone of Teton Valley’s natural beauty.

END UPDATED ARTICLE – Special thanks to Kent Werlin, biotaresearch.com

Disclaimer: As always, I need to start out this article with a disclaimer. I know enough about many of these topics to be dangerous – which is dangerous. Always seek the advice of appropriate professionals as this information is subject to change as well as my own interpretation. I don’t often go back and update old articles, so I’ll leave this here.

Wetland should not be confused with floodplain. Flood zones are not always wetland, and wetlands are not necessarily in floodplains. Flood zones normally occur in areas next to bodies of water or runoff areas and are often considered higher risk when it comes to flooding. However, any property can flood, not necessarily only properties in a floodplain or a wetland.

How to Identify Wetland

Wetland can occur even in areas not directly adjacent to a body of water and is usually determined by three primary factors:

1) Hydrology: Hydrology indicators can include the presence of surface water or wet soils as determined by evidence or review by a wetland professional utilizing different tools or testing to understand the presence of water.

2) Vegetation: Roughly a quarter of the plant vegetation species in the United States grow in wetland areas. Plant species can be classified in a number of different ways as identified below in order of wet to dry:

  • Obligate Wetland (usually very indicative of wetland areas) ie Sedges (which have triangular, sharp stems) and Willow
  • Facultative Wetland (usually occur in wetlands, but occasionally found in non-wetlands) ie Horsetail, Baltic Rush
  • Facultative (equally likely to occur in wetlands or non-wetlands) Meadow Foxtail, Timothy, Brome, Bluegrass
  • Facultative Upland (usually occur in non-wetlands, but occasionally found in wetlands) ie Potentilla
  • Obligate Upland (almost always occur only in non-wetlands) ie Sheep Fescue

3) Soils: Wetland soils are often referred to as hydric soils. These soils can be analyzed by digging a hole (usually 12-18 in deep) and looking at indications of saturated soils that usually show indications of oxygen depletion. This can be evidenced (essentially) by rust in the soils and the coming and going of water, creating oxidation. Oxidation can be due to iron and is usually identified by orange flecks in the soil or manganese which will reveal itself with a purple color.

Can you build in Wetland?

Wetland areas do require special permits and approvals. But first, they must be identified as wetland, usually by way of what is referred to as a Wetland Delineation performed by a properly trained wetland Consultant.

If a particular property shows indications of wetland, Teton County, Idaho will generally require a Wetland Delineation. They have requirements of 50′ or 100′ setbacks, depending on the delineation findings. If the project looks like it will encroach within 50′ of wetlands as indicated by the Delineation, the county may require a Jurisdictional Determination (JD) from the Army Corps of Engineers. If there are any questions on a project, despite setbacks, the Teton County Planning Staff may still send the information to the Corps for review. A JD is the process of Determining whether areas indicated as wetland are regulated by the U.S. Army Corps of Engineers under section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act.

If a property is determined to be wetland, with the proper permits it may be possible to impact up to 0.1 acre of wetland for driveway, septic, and a home site. If wetland is mitigated to another area, these improvement areas can be increased to 0.5 acres.

Wetland areas can make tremendous home sites, but it is important to remember the reason that these regulations exist in order to protect wildlife, habitat and waterways, often considered a key cornerstone of Teton Valley’s natural beauty.

Sources:

Condo and Townhouse HOA Dues Increasing

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Most condo and townhouse associations in Teton Valley share the same set of responsibilities which are collectively paid by owners in the community. Usually these include exterior maintenance, exterior insurance, snow removal, lawn care, open space taxes and maintenance and in some events, trash, water and sewer. Not very many communities have additional amenities but those would be included here as well. Another important item includes reserve funds for future repairs. While this line item isn’t generally ignored, it is often overlooked. New communities usually don’t require much maintenance with new siding, new roofs, new parking lot surfaces and so on. However, all of these items (and many others) eventually require maintenance.

It was common with most of these early developments for the developer to have some level of input with respect to establishing the dues. For obvious reasons, it was in the developer’s best interest to keep the dues low. This might be influenced by the developers desire to keep the dues low during their ownership (though this can be structured a number of different ways) but also to keep the dues low to attract new owners in the development. This isn’t necessarily bad practice as these developments simply didn’t require much in the way of maintenance early on.

As units sell in a development there is usually a transition where a board of owners is formed. This process is normally outlined in the subdivision’s documents. Developers often work with management companies or accountants to oversee the process, but admittedly, it can oftentimes be difficult to gain participation. Historically, Idaho has not had a clear guideline with respect to these processes, but the state is beginning to publish some basic requirements. Based on my experience, the dues are often kept at the same developer rate for many years with many new owners resisting an increase, particularly when there is no need for immediate maintenance. The problem is that this mentality perpetuates which ultimately leads to two choices;

1) A drastic increase in dues when it is apparent that the community will lack funds for major maintenance items

2) A “one time” special assessment

Obviously the best path would be a proactive approach considering future maintenance and building reserves. While it is too late for this process in many instances, my personal preference is a combination of the two – a reasonable increase to consider future maintenance items and beginning to build reserves coupled with a special assessment to address immediate concerns. This keeps the dues within reason for resale values, but also addresses all issues.

Today, we are beginning to see many communities employ these tactics not only for maintenance, but also for inflation. The general cost of maintenance has undoubtedly increased. Even at a 2% per year increase for consideration of inflation would result in a significant increase after 10 to 20 years, which many communities have not accounted for. As we all know, recent inflation has been significantly higher than 2%. Similarly, roofs, siding, parking lot surfaces – all of these major maintenance items have a bookmark sometime in the 20-year range, which is fast approaching for most communities developed in the 2005-2007 real estate boom. My advice for community members and associations is clear, but buyers should also consider these imminent increases. Personally, I would be more concerned with a community with low dues when compared with a community with high dues. HOA meeting minutes, budgets and reserve accounts are always available to buyers, and this is something that should be reviewed or at least discussed with an HOA representative.

When is the best time to shop for Real Estate in the Teton Valley?

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The best time to shop for real estate in the Teton Valley is totally dependent on a number of factors, as well as the context of the question. When do we typically see most new inventory come to the market? When are sellers usually most inclined to negotiate? I’ll do my best to break these questions down by the numbers using historical data, but I have to first clarify; The best time to purchase real estate in the Teton Valley is when the property you are looking for comes available. I can’t stress enough in our small market the lack of inventory and new listings at any given time. Choices are always limited, particularly when it comes to specialty properties like those with property features like creeks, streams or rolling terrain – as well as homes with guest homes, unique features, or special locations. Buyer should always be in the habit of monitoring the market closely, and jumping on opportunities when they meet one’s needs. That does not mean that buyers need to jump on the first thing that they see, however.

Land

Historical data has been fairly consistent. May and June have been the biggest months for new listings every year looking back to 2018 (and beyond) with the exception of 2020, which I’ll toss out as a result of The pandemic. Listings almost always begin to ramp up in April, and numbers for new listings begin falling in September. Here again, it doesn’t mean that one should not pursue a purchase during any given month. If a listing comes available that meets a specific set of criteria that has been difficult to find, it should be pursued if the price is right and you intend to close on a property within a set timeline. When it comes to the listing / sales price ratio, the data isn’t quite as definitive. However, it seems to point to sellers being more negotiable during the off-season months, particularly October, November and December. Usually an increase in supply decreases demand, but Teton Valley’s peak tourism season is the Summer months, effectively increasing the demand along with the new supply.

Homes

Residential trends seem to trail land trends by about 1 month. Most new listings come to market late Spring and early Summer, with June and July historically being the peak months for the greatest number of new listings coming to market. New inventory once again dwindles during the off-season months, particularly late Fall and early Winter. Historic trends have shown that new listings tend to pick up once again through the Winter peak season, though new listings are far fewer than Spring/Summer. Once again, the data is not as conclusive when it comes to the listing price / sales price ratio with residential properties, but there does seem to be a trend that shows more negotiation during the offseason months, like we were able to see with land sales.

Summary
The data points to more options and greater inventory during the Spring and early Summer months, with more opportunity for negotiation during the offseason, particularly late Fall and early Winter in both market sectors. Source: Teton Board of Realtors – Teton Valley, ID & Alta, WY

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