As an attorney practicing in Idaho and Washington for nearly 30 years, I often represent clients who live and work in Eastern Washington, while owning lakefront property in Idaho. As the weather improves and we head to our region’s many lakes for rest and relaxation, educate yourself about the legal issues that commonly arise for owners of waterfront property in Idaho. 

Here are three tips to minimize the risks so you can maximize the enjoyment this spring and summer.

Determine whether your property is on a navigable lake.

According to Idaho law, a “navigable lake” means any permanent body of relatively still or slack water, including reservoirs, that isn’t privately owned and not a mere marsh or stream eddy, and capable of accommodating boats or canoes. Reservoirs are excluded when they are controlled by a federal agency.

Idaho law regulates encroachments, such as docks, buoys, piers, waterline intakes, or shoreline stabilization, into the water on properties that sit on navigable lakes in order to ensure safe navigation and to protect property, fish and wildlife habitat, recreation, and water quality. Idaho law balances these protected interests against the navigational or economic necessity of the dock, buoys, piers, waterline intakes, shoreline stabilization, or other requested encroachment.

Double check encroachment permit status before you buy.

Idaho has a long history of development along its waterways, but not all encroachments are lawfully permitted. Even when a dock or other encroachment has been on the property for many years, such an encroachment may not be lawful and permitted. The last thing you want is to find out too late or after closing that your dock or water system that pumps from the lake is out of compliance.

Check the permit status ahead of closing on a waterfront property by contacting Idaho’s Department of Lands or the local county recorder. Be sure to take the time to examine the diagrams, drawings, plans, system layout on the recorded permit. Compare that configuration to exactly what is built and located on the subject property, particularly if a seller has replaced a dock or boat slip following destruction due to flooding from spring runoff or winter ice damage. Only after you have determined the validity of any permits, the seller should transfer the state encroachment permit to you as part of the real estate transaction at closing.

If no recorded encroachment permit can be located or the existing permit is not valid for the current configuration, a property owner should consider applying for an encroachment permit. 

Waterfront property owners who face this scenario may want to seek legal advice from an Idaho licensed attorney familiar with encroachment permits and the IDL public hearing process.

This process includes filling out an application with supporting documents, such as ownership records, drawings or plans for construction, maps depicting the encroachment, and a fee. That fee, depending on the type of dock permit you are seeking, ranges from $425 to $2,000. Be sure to notify your neighbors since they will have the opportunity to request a public hearing regarding your application.

In my experience, neighbors appreciate property owners reaching out preemptively to address any questions, concerns, or objections through a voluntary and amicable process.

If your dock or requested encroachment is larger in scope and use, formal notice will be published in the local newspaper for the adjacent waterfront owners and for various government agencies to review and comment on your application.

Finally, if a neighbor or a government entity requests a public hearing, you must attend that public hearing and present evidence in support of your application. This hearing is usually conducted by a Land Board appointee who then issues a recommendation. During the public hearing before the hearing examiner, the applicant or the applicant’s representative – usually an attorney or an engineer – will address any factual or legal objections, if any, submitted by the neighbors and/or the local governmental agencies.

Mischelle Fulgham is an attorney at Smith+Malek PLLC’s new Spokane office. She can be contacted by email at Mischelle.fulgham@smithmalek.com.