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Water Law Outline

Professor Pearl
Fall 2014
Introduction and Origins of Prior Appropriation
I.
Introduction
a. Function of Water Law
i. Resource allocation: who can use water and for what purposes
b. Water resources
i. Rivers and streams are flow resources and it is flow, not quantity, that must be allocated
ii. East: resources are abundant; humid climate makes irrigation unnecessary, low demand
1. Flow of eastern streams is less variable conflict is atypical
iii. West: scarce variable resources; climate makes irrigation necessary; high demand
1. Conflict is frequent and predictable
c. Role of Government
i. Enforces rights, creates rights, regulates water rights
ii. Develops water supplies, and uses water
iii. Conservancy district: distribute water to users
iv. Water law is primarily a subject of state law
d. Modern Themes in Water Law
i. Government regulation funding
ii. Population growth
iii. Overpumping of an aquifer
1. Bad because land will subside (decrease pressure under ground) and cause
sinkholes
iv. Raises cost of water
1. Drill deeper wells
v. Decrease in water quality
1. Bottom of the water is less clean.
e. Overview of Property Rights in Water
i. Surface streams: right to abstract and to use the water of streams based on 2 doctrines
1. Riparian rights: gives each owner of land bordering a stream the right to make
reasonable use of the water
a. Imposes liability on an upper riparian owner who unreasonably interferes
with use of lower owners
2. Prior appropriation: allows the use of a specific quantity of water for a specific
beneficial purpose
a. Originated during the California gold rush
b. First in time, first in right
c. Right is initiated by application for a permit
i. Permitting System: surveyor issues a permit that shows that the
user was the first to use it.
ii. Preexisting right; constructive notice.
d. Can be sold and purpose changed
e. In the past you had to make a physical diversion of the water (this would
serve as notice)
i. Today there is a permit that serves as notice
f. Can be sold, change use, exchanged
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i. One user may dry up the stream if they are senior without getting
in trouble
g. Nine states that have pure appropriation law: Alaska, Arizona, Colorado,
Montana, Nevada, New Mexico, Utah, Wyoming
h. Mixed appropriation law: CA
ii. Groundwater:
1. Rule of Capture
a. If you caught it, its yours.
b. Fox case.
c. Not like that anymore. We know how much is in the aquifer and there are
ways of measuring it and how much people take.
2. Reasonable use
a. Pump as much as you want as long as you use it reasonably and the use is
connected with your land.
3. Correlative rights
a. Cant pump recklessly but can still pump as much as you want
4. Prior appropriation
a. You get a certain amount and thats it
b. States have water conservation districts (W.C.D.)
i. Specialize in groundwater or surface water or both within a
geographic locale.
5. Groundwater is related to surface rights. If you divert from surface stream, less
water in the groundwater to recharge (pump up)
f. Western Water Law in Transition
i. Increased awareness of budgetary constraints on governments
ii. Press of continuing migration to the West has created unprecedented strains on water
supplies
iii. Innovations in high-lift pumping equipment has allowed us to begin to tap the potential
of great reservoirs of groundwater
1. But not many are renewable
iv. We have become determined to abate water pollution
v. Revolutionized our concept of what western water is: sufficient water must be available
to meet a broad range of environmental, recreational, ecological and aesthetic needs
vi. Body of law must begin to account for the rights of Indians
vii. CONSERVATION
g. Public Rights
i. Navigation, fishing, recreation
ii. Navigability

Recap
Should water be treated differently than other natural resources?
Consumptive use: irrigation, mining, agriculture, etc.
Past 50 years: non-consumptive use has come into play reserving water for recreational, aesthetic, economic
uses (instream flow). This also protected fish and other ecosystems; public derives value from instream flow
(boating on lake, public water rights)
Role of government in water rights?
Create water rights
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o Permitting system (you have a certain amount per year)


Enforce water rights
o Judiciary
Regulate water rights
o Texas struggles with this one.
Does government have an obligation to preserve water sources?
Does government have an obligation to develop future water sources
Does government have an obligation to protect against harms?

Chapter 2: Prior Appropriation


I.
First in time, first in right
II.
Origin
a. Starts in California
b. Irwin v. Phillips
i. RULE: the miner who selects a piece of ground to work, must take it as he finds it,
subject to prior rights, which have an equal equity, on account of an equal recognition
from the sovereign power
1. Facts: Irwin, a CA miner, diverted a stream from its natural course to his mining
operation. Phillips and others began mining farther downstream and found that
they lacked sufficient water for their operation. Phillips began to trench on
Irwins dam, in an attempt to divert the water back into the original streambed.
Irwin won a suit for trespass at the trial level, and Phillips appealed to the CA S.
Ct. arguing riparian rights!
2. The miners didnt own the land. If they did, they would be riparian owners and
this case would have ended differently. If someone did divert water, one would
be injured by disrupting water flow.
3. Each person has some rights, so who wins?
4. Issue: did the common law of England and the eastern US apply to California?
5. If it did, then Irwin had no right to divert water from its natural course
6. Holding: miner who selects a piece of ground to work, must take it as he finds it,
subject to prior rights, which have an equal equity, on account of an equal
recognition from sovereign power
a. Riparian water law was irrelevant because the land at issue is public land!
ii. Reasoning: Appropriation is not a shared system
1. 1st three users get full rights even if at the expense of the last
2. Protect canal builders interests and investment-backed expectations
a. Reward someone who put for the labor and investment to create the
diversion of water.
3. Pro-development
4. Economics will balance interestsif earlier use is not the most valuable, later
party can buy it out
a. Recognizes arid climate and need for irrigation
5. These others chose a bank of stream from which the water had already been
turned
6. Policy of legislature
a. Trying to promote gold mining
b. Silent on who has rights
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III.

c. Cant promote diversion of water if they know someone can come and
take it away
d. Someone already invested money, time, research, and development
iii. Established Appropriative rights
1. Priority determines rights
a. Based on use
b. Prior person has the right first in time, first in right
iv. Notes:
1. Mining law is the origin of prior appropriation in US; may have come from
Mexican law.
2. Some state trace statutes adopting the appropriation doctrine in those states to
Spanish or Mexican law.
a. Spanish or Mexican grant of land riparian to the Rio Grande did not carry
with it an appurtenant irrigation right, and that the Spanish and Mexican
irrigation system was not a system of riparian law, but required a specific
grant of the water.
3. California Doctrine
a. Despite the holding in Irwin, the California SC held that a federal patent
to riparian land carried with it riparian rights.
b. California recognized both appropriative and riparian rights in a system
which came to be known as the California doctrine
c. This system provides riparian rights on a particular tract of land are
subordinate to all appropriative rights, which are created before a federal
patent for the particular tract is issued. They are superior to all
appropriative rights created after the riparian lands are patented.
4. Federalism
a. Private water rights are almost exclusively a matter of state law.
5. Pueblo Rights
a. Rights for a municipal purpose that are superior to those of agricultural
appropriators and that permit a city to expand its uses and take without
compensation water put to use long before the citys exercise of the
right.
b. Remnant of the Southwests Spanish heritage, stemming from Spanish or
Mexican grants to agricultural villages, which have since grown into
American cities.
Attributes
a. Intent and Diversion
i. In re Adjudication of the Missouri River Drainage Area
1. RULE: Doctrine of prior appropriation should NOT be interpreted as demanding
a diversion of water where a diversion is unnecessary to achieve the intended
beneficial use (In re adjudication of the Missouri River Drainage Area)
a. A diversion may prove intent to appropriate, but it is not necessary
b. The doctrine of appropriation should not rigidly demand a diversion
where unnecessary to achieve the intended beneficial use.
i. If the use, of practical necessity, requires a diversion for the
application to beneficial use, then there are cases that suggest
that a diversion is an essential element.
2. Montana law

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a. Is fish, wildlife, recreation beneficial use??? yes


b. They are public goods
c. Just because its not consumptive use, doesnt mean its not beneficial.
3. Common Law Elements of Valid Appropriation
a. Intent
b. Notice
c. Diversion
i. Notice of users intent and extent of use
ii. Diversion served purpose of intent to use water
iii. Proves as proxy for intent and notice.
iv. History: water use required diversion; changing use of water over
time.
v. No longer required
d. Application to a beneficial use
i. Touchstone now is use; beneficial use
ii. It is reasonable beneficial use?
iii. Not beneficial use
1. Flood farm to kill rodent problem
2. Increased flow to missed during irrigation.
3. Coal slurring pipeline
a. Statutes set this
4. Case by case
5. Cant use potable water if non potable water can do the
same thing.
a. Dont use drinking water to water golf course.
4. Notes
a. Elements of Appropriation
i. Traditional common law elements
1. Intent/notice
2. Diversion, and
3. Beneficial use
ii. Distinguished from descriptive parameters such as quantity,
specified by rate of low, or volume, or both, source of supply,
priority, point of diversion, place of use, and purpose of use.
b. Intent and Notice
i. Administrative permit system
1. A government issued permit is required in order to make
an appropriation
2. The common law elements remain relevant but the
practical importance of some elements, such as intent and
notice, have been greatly diminished by the permit
system.
c. Diversion
i. The necessity of an actual diversion was of some importance in
the early days of the west when pioneers took advantage of
natural conditions.
ii. Reaping the benefits of natural overflow and percolation
irrigation was not appropriation of the water
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iii. Most states have eliminated the need for physical diversion but a
few state continue to require diversion or control.
iv. Where horses, cattle, and sheep do their own diverting,
stockwater appropriations have been upheld.
d. Protection of instream uses
i. Uses associated with water in a stream, such as recreation,
aesthetics, maintenance of fish and wildlife habitat, and general
environmental protection
ii. The instream appropriation is the most widely used technique to
protect instream uses.
iii. Instream appropriations have also been recognized in states
without express programs.
iv. Private instream appropriations
1. Many states restrict instream appropriations to designated
public agencies.
2. Should private parties be able to make instream
appropriations?
v. Other techniques include withdrawal of specified streams from
appropriation; protection from diversion of state required
minimum flows; reservation of water for instream flows by public
agencies; wild and scenic rivers designations to preserve the freeflowing nature of specified rivers; regulation of the appropriation
process to deny or condition new appropriations; application of
the public trust doctrine; limitations on diversions under section
404 of the clean water act and the endangered species act;
imposition of flow requirements as water quality standards under
sections 303 and 401 of the clean water act; and flow
requirements dictated by federal land agencies in permits issued
for water development.
ii. General Stream Adjudication: court/water district confirms what rights are out there
1. Water courts subject to review by State Supreme Courts
2. Instream flow: taking the water from the stream, using it where it is flowing
iii. Permits: this is how you show intent!
1. Source of supply (e.g., a named stream or river)
2. Point of diversion
3. Place of use
4. Purpose of use (e.g., irrigation, domestic use, municipal use)
5. Quantity of water which can be taken, specified by rate of flow (e.g., cubic feet
per second) or volume (e .g., acre-feet) or both
6. Priority date
iv. Moving forward:
1. What constitutes beneficial use?
2. What constitutes waste?
3. Is prior appropriation as flexible as it seems?
b. Beneficial Use
i. Elements of beneficial use:
1. Purpose or type of activities for which the water will be used
2. Amount of water (reasonable and reflect the duty of the water and waste)
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a. Water duty: the amount of water which with careful management and
without waste is enough to meet the needs of the water user
b. Waste: no appropriation will be granted for water that will be wasted
reasonable and economical use of the water in view of other present
and future demands upon the source of supply
i. Appropriator who diverted more than was needed for his actual
requirements and allowed the excess to go to waste acquired no
right to the excess
ii. Only have rights to that which is beneficially used, no vested right
to waste water
ii. Idaho Department of Parks v. Idaho Department of Water Administration
1. Facts: Idaho passes statute requiring parks to allocate water for scenic beauty,
recreation and put that right as a priority over other public uses.
2. Idaho Department of Parks filed an application for a permit to appropriate
waters specified by the statute
a. Water Admin states that the preservation of aesthetic values and
recreational opportunities for the citizens of this state is not a beneficial
use
b. Water admin said that the statute is unconstitutional: because it is
allowing violation of the Idaho Constitution: beneficial uses are domestic,
agricultural, mining, manufacturing, power (exclusive and cant add
more)
3. While an appropriation of water must be made for beneficial use, beneficial use
has not been defined
4. Holding: the list of 5 is not exclusive; others such as beauty and recreation are
beneficial
a. Term beneficial use has never been statutorily or judicially defined
i. Legislation has allowed it to be used and so we will too
b. Preservation of water in area described for its scenic beauty and
recreational purposes necessary and desirable for all agents of state is
hereby declared to be a beneficial use
c. Other states allow scenic or recreational purposes to be a beneficial use.
d. Statute is clear: beneficial use is important
e. The constitution only lists certain things
i. Court: not exclusive; the constitution only lists preferences in case
of shortage
ii. Beneficial use is not defined by these five things.
5. Instream flow right: does it matter where on the river your right is?
6. Concurring: In history, use of water was beneficial, no doubt, but none of the
uses were spelled out in the constitution. The adoption of that portion of the
constitution was not intended to abolish these uses but that these uses would
continue.
a. Reasonableness in required in beneficial use.
b. Flexible doctrine: whats beneficial now may not be beneficial in the
future.
i. Notion that will change overtime
c. If we dont recognize these rights, capital would be in jeopardy
d. Contributes to the general welfare of the citizens
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7. Dissent: would not recognize water right for recreation and beatuty
a. Not going to drain lake because of recreation
b. Should be a case by case basis to ensure that it is not draining the lake
c. Not going to give the state a water right in certain amount of flow. But
we will monitor it if it gets low.
8. Notes
a. Beneficial use is a core principle of the appropriation doctrine.
b. The concept of what is or is not a beneficial use must necessarily change
with changing conditions. Use does not necessarily mean consumption
and a beneficial use is not limited to a use that generates a profit or
income.
c. Nearly all states identify instream or recreational uses as beneficial uses.
d. Private instream right: limited to public entities
i. Who is better able to manage resources? Environmental club or
government?
iii. City of Thornton v. Bijou Irrigation Co.
1. City of Thornton applied for a new conditional water right and for changes in use
of existing water rights as part of a long term project to meet the needs of
projected population increases.
2. Applicant must have the necessary intent to apply the appropriated water to a
beneficial use; speculative use of the water is not enough to support granting of
a conditional permit
3. Conditional water rights: municipal can have water right for future use even if
they dont know now that they will use it.
4. Perfection: actually using the permit/water right
a. If not perfected, may forfeit or abandon the water right/permit.
b. Important to beneficial use: have to use it.
5. General rule -- the user must intend to put the water to a beneficial use within
a reasonable time. Exception for municipalities
6. Holding: a municipality may be decreed conditional water rights based solely
on projected future needs, and without firm commitments or agency
relationships
a. But a municipalitys entitlement to such a decree is subject to the water
courts determination that that the amount conditionally appropriated is
consistent with the municipalitys reasonably anticipated requirements
based on substantial projections of future growth
b. It is not speculation but the highest prudence on the part of the city to
obtain appropriations of water that will satisfy the needs resulting from a
normal increase in population within a reasonable period of time.
c. When appropriations are sought by a growing city, regard should be
given to its reasonably anticipated requirements.
7. Municipalities are provided additional time to develop their beneficial use
a. When they use the right, it is perfected
b. They need to have water in order to expand
8. Anti-speculative doctrine:
a. Applicant must establish an intent to appropriate the water for
application to beneficial use
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b. For reasonably anticipated growth requirements!


c. If there is a challenge, you have to be able to show that the amount you
are asking for is for reasonably anticipated growth
d. You have to say what you are going to be using it for when you apply
e. No beneficial use at this time but Ill have a use at an unknown later date
f. Similar to adverse possession: cant buy land and never use it and not let
others live on it. Cant lock it up.
9. Vidler
a. Private entity
b. Sell water to municipalities
c. They didnt have any cities who wanted to buy. Simply hoped they would
at some later date.
d. Not enough to get water permit.
10. Relax the anti speculation doctrine for municipalities with reasonably anticipated
growth. Burden is on the city to make such a showing.
11. Denver Blue River Case
a. Part of the Thornton case
b. Not obtaining right for potential growth.
c. They were selling it to citizens which was subject to the anti speculation
doctrine
12. Are municipalities better suited?
a. Probably not: under funded and under staffed
b. Feels like property: buy and sell it
c. Feels like non property: public goods, highways, public parks
13. Trend towards actual use of water even if municipalities need water.
14. Notes
a. A bias against speculation is inherent in the concept of beneficial use.
Relaxation of anti-speculative doctrines on behalf of municipalities, the
growing communities doctrine, is widely accepted
b. Limits to relaxation: scrutinize closely any claims for planning periods that
exceed 50 years. Puts the burden on the district to demonstrate that its
needs were non-speculative.
c. Can and will doctrine: a conditional right cannot be recognized unless it is
established that waters can and will be diverted.
i. Focuses on applicants ability to complete the intended
appropriation.
ii. Factors
1. Economic feasibility
2. Status of requisite permit applications and other required
governmental approvals
3. Expenditures made to develop the appropriation
4. Ongoing conduct of engineering and environmental
studies
5. Design and construction of facilities
6. Nature and extent of land holdings and contracts
demonstrating the water demand and beneficial uses
which the conditional right is to serve when perfected
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iii. The anti-speculation doctrine ensures that an identified beneficial


use will result by the end of the relevant time. The can and will
doctrine looks at a projects feasibility over that time.
d. Economic functions of speculation: Opinion! requirement of beneficial
use creates economic waste by encouraging uneconomic investments
and premature development of resources. Unappropriated water should
be allocated by state auction and that the purchasers should be allowed
to hold their rights for speculative profit without beneficial use.
e. Storage: rules governing storage come in different guises: the one fill rule
is designed to protect priority and can have substantial impacts on water
supply and planning.
i. Reservoirs are supposed to even out dry years and wet years
ii. Generally storage isnt a beneficial use
iii. Encourages reservoir managers to use water so they dont lose it
(could be unreasonable)
iv. Recharging the aquifer is beneficial use.
1. Pumping water into aquifer.
v. Carryover storage: practice of retaining water in a reservoir from
one year to the next.
1. When water is carried over and not withdrawn for a
specific purpose, some jurisdictions consider this non-use
akin to forfeiture or abandonment.
2. Storage of water is not itself a beneficial use, at least
absent a specific purpose of use that requires storage,
such as recreation.
iv. Washington Department of Ecology v. Grimes
1. Facts: Grimes submitted five claims for water; only one is at issue: the use of
waters for domestic supply, irrigation and recreational purposes. Referee
recommended lesser flow and storage rights; court accepted the
recommendations; decision appealed
2. Adjudication decree: confirm water right not change water rights.
3. Regulatory taking: they cut my water in half (government can take property but
pay fair market value)
a. Water rights are property and you have to pay me for it.
4. Takings problem
5. Holding: water right holders have a vested interest in the water right to the
extent it is beneficially used, and includes the right to diversion, delivery and
application according to usual methods in vicinity
a. Adjudication proceedings cannot be used "to lessen, enlarge, or modify
existing rights of any riparian owner, or any existing right acquired by
appropriation, or otherwise."
b. Recognized his rights to the extent they allowed him to have beneficial
use.
6. Beneficial use
a. It refers to the purposes or types of activities for which water may be
used.
b. Beneficial use determines the measure of a water right.
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i. The owner of a water right is entitled to the amount of water


necessary for the purpose to which it has been put, provided that
purpose constitutes beneficial use.
ii. The principle of reasonable use determines the amount of water
necessary for a beneficial use.
1. Reasonable use of water is determined by analysis of the
facts of water duty and waste
a. Water duty that measure of water, which, by
careful management and use, without wastage, is
reasonably required to be applied to any given
tract of land for such period of time as may be
adequate to produce there from a maximum
amount of such crops as ordinarily are grown
thereon. It is not a hard and fast unit of
measurement, but is variable according to
conditions.
i. Amount of water needed for a certain use
under certain circumstances
ii. Based on science and expert testimony
(may be statute, may be research
university)
iii. Case: needed 2.5 acre feet per year
iv. Efficiency factor: 2/3 of water he received
was wasted
v. Not efficient
b. Waste: from an early date, courts announced the
rule that no appropriation of water was valid
where the water simply went to waste. The
appropriator who diverted more than was needed
for the appropriator's actual requirements and
allowed the excess to go to waste acquired no right
to the excess
i. No right to waste water
c. A particular use must not only be of benefit to the
appropriator, but it must also be a reasonable and
economical use of the water in view of other
present and future demands upon the source of
supply
7. Reasonable efficiency test
a. Used to modify existing right. Not useful in this situation
b. Lacked authority to use the test
c. Wouldve reversed if this test was used.
8. Grimes water use was unreasonable.
9. Reasoning:
a. No statutory basis for considering reasonable efficiency
i. Reasonable efficiency: local custom, relative efficiency of
irrigation systems, costs and benefits of improving the efficiency
of the system
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b. Local custom and the relative efficiency of irrigation systems in common


use are important elements, but must be considered in connection with
other statutorily mandated factors, such as the costs and benefits of
improvements to irrigation systems, including the use of public and
private funds to facilitate improvements.
10. Reasoning: water right is similar to other property rights and is entitled to legal
protection
v. Imperial Irrigation District v. State Water Res. Control Board
1. 1928: constitutional amendment
a. property is subject to reasonable exercise of police power
i. Ex: zoning laws
b. Prohibited unreasonable use of water
2. IID: quasi public utilities
a. Monitor and regulate water use in district
b. They were flooding farmers land
c. Wasting water
i. Canal spillovers
ii. Tail water: run off from agricultural irrigation
d. Vested property right exceeds police power of state by stopping usage of
water.
3. Facts: private party brought an action requesting that the department determine
whether IID was misusing water. Board ordered IID to make changes to use.
4. Issue: does the board have a right to interfere with a vested water right
5. Holding: the vested right is only the amount that can be reasonably used
a. There is no vested right to waste water; and since there is not a vested
right, then it cannot be taken by the government
b. Having used water in the past, does not guarantee you will be allowed to
continue to use that amount of water in the future, especially if the use
of the water in question is considered a waste, that is, it is not a
beneficial use
6. Was loss of water reasonable? Was boards decision to cut, a taking?
7. Only reasonable right to use water. No vested right
8. Vested right: homeowners have a vested right to property. In order for
government to take it, they have to pay.
9. Reasonable use and vested right are similar
a. If IID was making aquifers and recharging, maybe this would be vested
and be considered a taking.
b. Waste is not a vested right and is unreasonable.
10. Are all beneficial uses reasonable?
a. No
11. Notes:
a. The fact that a diversion of water may be for a purpose beneficial in some
respects does not make such use reasonable when compared with
demands or even future demands for more important uses.
b. Assume that a California farmer is using no more water than is necessary.
Could the state find that the farmers use was unreasonable because
there was a more important or valuable use for the water?
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c.

d.

e.

f.

g.

i. If farmer uses water reasonably for 70 years, this may be a vested


right and should be compensated.
ii. Who should bear the costs? The farmer who is reasonably using
property or the taxpayers in a taking?
What if entity or person uses water more efficiently?
i. Wont be punished by taking away the water rights if you are
increasing efficiency.
What if you decline an offer to buy equipment to increase efficiency?
i. Is he wasting water?
ii. Is it fair to say you have to use this equipment in order to use
water?
What if a company downstream could grow sugar of higher cash value
than the farmer?
i. Is that waste if the farmer gets water?
It must not be assumed that all irrigation water in excess of consumptive
use is lost to the system. In many cases, the water is returned to the
stream or serves to recharge ground water.
It is not clear why a person should not be free to use his own property as
he sees fit, providing losses are not imposed upon others. To deny
rationality in the use of ones own water right is to question the basis of
private decisions in the use of all resources. the problem here is to define
water rights in such a way that they do become real property and
susceptible to market allocation by the forces of supply and demand.
i. Property: we know where rights start and end. We know the value
of these rights
ii. Water rights: not the same. We dont know where they begin and
end. We dont know the value.
1. These change with the conditions (drought) and
legislation.

c. Priority
i. State ex rel. Cary v. Cochran
1. Rule: if there is a usable quantity, the juniors must let it down
a. Temporal priority always wins
b. Junior appropriators must be restrained from taking water from the
stream so long as such water can be delivered in usable quantities at the
head gate of the Kearney canal.
2. Facts: Central Power brought an action against state to require state to properly
administer the irrigation laws of Nebraska. CP had priority to water in the Platte
River as of 1882. CP contends that the state, by allowing junior appropriators to
use water, is damaging CPs right to the water.
a. Platte River loses water as it flows downstream due to evaporation and
percolation. State administrators allowed upstream junior appropriators
to use water rather than have it "lost" to nature.
b. CP argues that all subordinated water right holders upstream from
Kearney Canal must cease their use if there isnt enough water to fill
priority rights at Kearney canal.
c. However, due to the heavy loss of water, the trial court concludes it
would be an unjustified waste to attempt delivery to the Kearney Canal
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(essentially under the reasonable use theory that we talked about


previously).
d. Carriage loss: running dry
i. Not necessarily waste: may be recharging the aquifer, etc
e. Water administration: if water wont reach the senior appropriators
downstream, the upstream junior appropriator may diver water (or use it
somehow)
i. Water administrators are not elected positions
ii. If this policy were to stand, the senior appropriator would not be
able to get any water.
3. ISSUE: the determination of the duty imposed upon the officers of the state in
administering the waters of the stream when the available supply of water at the
head gate of the Kearney canal is reduced to an amount less than the 162
second-feet to which the realtors are entitled
4. On appeal: water rights are subject to regulation by the state by virtue of its
police power. But the state administrator cannot change priorities. Instead, the
administrator must decide whether use of the water by junior appropriators
would damage the senior appropriators. If the answer is no (that is, if there is
scientific certainty that the water will not get to the senior appropriator and
the senior appropriators would not receive any more water even if the junior
appropriators' use was restricted), the state administrator can allow the junior
appropriators to use water.
a. Ct would not allow state administrators to weigh or consider the loss of
water as it flows downstream to priority user. That would give the
administrators too much discretion.
5. Holding: ruled in favor of the juniors; no usable quantity would reach the head
gate and therefore the juniors could use the water
a. After determination that a given quantity of water passing a certain point
on the river would not, even if uninterrupted, reach the head gate of the
Kearney canal in usable quantities, the administrative officers of the state
may lawfully permit junior appropriators to divert it for irrigation
purposes
b. If there is scientific certainty that water will not get downstream!
i. Or if there is more than enough to go around.
c. Must give deference to priority
d. Priority trumps reasonable use
e. Is carriage loss waste?
i. Instream flow that will prevent upstream user from having water.
ii. City of Denver v. Northern Colorado Water Conservancy District
1. RULE: Can apply for conditional water right and you have to perfect right by
taking first and open step and then pursuing it with reasonable diligence
a. Although an appropriation is not complete until actual diversion and use,
still the right relates back to time first open step was taken giving notice
of intent to secure water right. This right to relate back is conditional:
construction of project be pursued with "reasonable diligence," and
applicant have fixed/definite purpose to take project, and carry it
through with actual use and diversion.
Water Law - Page 14 of 66

2. Facts: Denver was intending to divert water from the western slope of the
continental divide for use by the city on the eastern side
a. Denver claimed priority based on 1921 and 1927. Conservancy District
claimed priority date of 1937 and opposed Denver's claims
b. No evidence of any work begun on July 4, 1921 for the blue River project
i. The projects are not just units of a single project, but separate
ones
c. Surveys, preparation of maps, acquiring rights of way and option,
obtaining a contract to carry water through the tunnel, drilling test holes,
clearing timber, are sufficient to satisfy requirement of reasonable
diligence.
d. But Denver spread its activities over 20 years, whereas in the case being
relied on for precedence, the applicant made the efforts in a 5-year time
span.
i. There were reasonable explanations for why Denver waited for so
long:
1. Stock market crash
2. WWII
3. Couldnt get funding but Denver was actively engaged in
finding funding throughout.
e. Diligence -- steady application, constant effort, doing an act or series of
acts with all possible expedition, with no delay except such as may be
incident to the work itself.
i. Surveying not enough, planning not enough.
3. Procedural Posture: District court granted Denver a water right based on smaller
tunnel w/priority date of 1946. Denver appealed. Supreme Court upheld district
court.
4. Holding:
a. Denver did not even arrange financing for the project during the 20
years; therefore priority was granted on the basis of the later date; they
also did not actually begin any excavation at all on the Blue River project
5. In order to relate back for earlier priority, must show:
a. Reasonable diligence that you are working on project
b. Actual use and diversion
c. Fixed and definite purpose.
d. These will establish a first step and the ability to relate back to the earlier
priority
6. Dissent: Some changes in plan can be tolerated w/out loss of priority. When is
construction on one part of a large project enough to protect entire project? The
dissent would answer this question as: when the part relates to a single
integrated purpose so that progress on one part has a direct bearing on another
part. Interruption in the effort due to depression and war -- uncontrollable
events -- justify the slow progress in construction and financing.
a. Those changes in plans are sufficient (this is a huge project and changes
are making the project more efficient)
b. If technological advancement or cheaper way comes around, we
shouldnt punish people for using this more efficient way.
c. Change in use of water is different
Water Law - Page 15 of 66

i. Instead of using for our people, Im going to sell to Kansas: no go.


ii. Im going to use water for irrigating cotton not wheat: should be
ok.
7. Holding: (2): as to the rights here involved a municipal corporation has no
different status from that of an individual or any other party to the proceeding;
(3): that although an appropriation is not complete until actual diversion and
use, still the right relates back to time first open step was taken giving notice of
intent to secure water right. (4) right to relate back is conditional: construction
of project be pursued with "reasonable diligence," and applicant have
fixed/definite purpose to take project and carry it through. (5): question of
reasonable diligence and of fixed/definite purpose are questions of fact to be
determined by trial court
8. Denver is trying to argue that Intent was there all along;
a. Fixed and definite intent first open step notice to others that you are
there and want to use it.. but if no reasonably diligence then you are
tying up the water
b. Dissent now codified: In several permit states, the requirement has
been crystallized by statutes setting forth a specific time within which
the work must be commenced; the physical works must be completed;
and the water applied to beneficial use
9. If a state does not have a permitting system, to know if there is priority, go look
at the waterway
10. Cant sit on priority
a. Use it or lose it
b. Anti-hording: cant survey all of watershed to get permit to it all and then
sit on it until and if you decide to do something.
c. Different streams so there may be different dates. Priority dates back to
the date of the stream, not the date of the project.
11. NOTES:
a. In states where a permit is required for an appropriation, the priority of
the appropriation dates from the filing of the permit application.
i. This priority is retained only if the permittee completes the
appropriation by applying water to beneficial use with reasonable
diligence.
b. Rights to water are only perfected when water is physically captured
i. An appropriator obtains protected rights to water by taking a first
step towards appropriation.
ii. Application of water to beneficial use requires large investments
of capital and labor and may take a substantial time
1. A party may be reluctant to make such investments if
priority could be lost to a competitor who is able to initiate
and complete a project in a shorter time.
c. Diligence requirements do not commence until the permit is issued
i. This may lead to shelf filing in which the state hold applications
for many years, preserving the priority date without requiring
development
ii. Remedy: requiring water official to act within fixed time limits
d. Pre-application efforts
Water Law - Page 16 of 66

i. Filing of notice of intention that fixes the date of priority if a


formal application is filed within a reasonable time.
iii. Phillips v. Gardner
1. RULE: priorities based on priority in time and not on nature of use
a. Priority is based on date, NOT use; regardless of ANYTHING else. PA
superseded old preference statute - Senior is always first.
b. When there are shortages, look to statutory preference
i. If there isnt a shortage, seniority wins!
c. NE, ID, WY: give right to preferred use; you must condemn and pay just
compensation
2. Facts: Watermaster threatened to cut off Ps domestic water supply and drain
their impoundment in order to provide water to a downstream priority water
user.
a. P argues that the holder of a certificate for domestic water use has a
preference over a prior recorded water right for other purposes
b. Domestic purposes: household water use (shower, cooking, drinking)
(state-driven)
i. Agricultural: livestock water, sometimes lawn watering; trees are
crops
c. Ct enjoined watermaster from cutting off the domestic supply based on
1893 statute
d. CoA disagreed and interpreted the 1909 statute as repealing conflicting
law and that "time of appropriation" will determine priority.
e. Water Act indicates in purpose that priorities should be based on priority
in time and not on nature of use
3. Notes
a. Preference
i. In times of shortage, the water is devoted to the preferred use
instead of to a non preferred use
ii. Where new applicants compete for permits to appropriate water
insufficient for all proposed uses, the preferred user gets the
water right, regardless of the relative priority of filing the
applications
iii. Where a change is needed, the preferred user may condemn and
pay for a prior right for a non-preferred use.
iv. Cache La Poudre Water Users Assn v. Glacier Meadows
1. RULE: Plan of augmentation is a plan to increase supply of water, and will be
approved if it does not injure vested rights
a. Where senior users can show no injury, they cannot preclude a beneficial
use by another. Water is available if the new use will not cause injury to
existing users.
b. Subordinate users can substitute water to meet needs of downstream
priority users
2. Facts: Developer of residential lots filed two applications for approval of a plan
of augmentation. Water users association objected. D owns shares of an
irrigation company entitling it to store and direct flow water. D will use water
from wells for domestic purposes and use stored water to replace the well water
Water Law - Page 17 of 66

that is consumed. D will allot 26.7% of the water to in-stream flow to replace the
25% of the water that historically was return flow.
a. Water association argues there must be 100% replacement of the well
water or the senior appropriators will be harmed.
3. Plan of augmentation is a plan to increase supply of water, and will be approved
if it does not injure vested rights. (not adding new water, just replacing what is
there Note 1 is a good explanation)
4. NOTES
a. A senior appropriator can be compelled to accept a substitute source of
water or other modifications, which allow a junior to use water without
harming the senior.
b. A senior appropriator has no right, as against a junior appropriator, to
waste water, to increase the amount or extend the time of his diversion
so as to put it to double use by irrigation of other lands, or to lend, rent,
or sell to others the excess water
c. A senior appropriator is not protected against every detrimental change
caused by junior appropriations
d. Where there is enough water for each of several small appropriations,
each appropriator in turn may take the total share of all for a short time,
to give each an irrigating head of a manageable quantity of water and to
cut down on seepage and evaporation. Such rotation does not violate
priority rules.
v. RECAP of RULES
1. Senior must receive usable quantity of water if delivery is not futile
2. Preference statute: usually does not trump priority!
3. Municipalities: have some speculation but must be reasonable diligent
a. Can apply for conditional water right and you have to perfect right by
taking first and open step and then pursuing it with reasonable diligence
d. Waters Subject to Appropriation
i. State v. Hiber
1. F - Person impounding water and built a dam to collect diffuse water.
a. Received permit from state to construct reservoir.
b. Dam was partially constructed when Hiber built a dam.
c. State wanted to abate Hibers dam and to enjoin him from using it.
2. I - Does the draw constitute a watercourse? A natural stream?
a. Constitution states, all waters from natural streams are property of the
state.
3. R - Perception Test: you know a stream when you see it, a RPP.
a. It is dry nearly all the time
b. Covered with grass
c. No banks; easily crossed almost everywhere
d. Main course is confined to the lands of the defendant
e. Short distance
f. No natural outlets
g. Run of the water is confined to short time; snow melts, heavy rains
h. Doubtful water would reach permit holders reservoir
i. No one would instantaneously perceive that it is a watercourse.
4. Notes:
Water Law - Page 18 of 66

a. Surface water: diffused over the surface to the ground, derived from
falling rains and melting snows and continues to be such until it reaches a
channel or natural water source.
b. CL, you cannot inhibit the flow of watercourse
c. Watercourse Tests
i. Eastern Test a permanent and definite supply of water.
ii. Western Test stream is constantly or recurrently flowing, in a
reasonably definite natural channel (beds and banks), more than
stormwater.
d. Tributary connected by flow, to another river
i. 1st Order the beginning, or first place where you can find a
watercourse, no watercourse above it
ii. 2nd Order recipient of flow from a 1st order. Etc.
iii. * Key - it is all relative to where the water first starts
e. Playa Lakes pothole lakes, formed in ground depressions. They are
connected to streams via groundwater. Ok litigation re: are these lakes
tributaries, ie connected in a chain?
f. Springs: usually held to be part of the watercourse and their use is
governed by water law
ii. R.J.A., Inc v. Water Users Assn of District No 6
1. Plaintiff wants to reduce water loss from a marshy mountain meadow by
removing the underlying peat moss and convert the marsh into a well-drained
meadow.
a. Water enters this marsh from several surface streams
b. Loss of water was higher from peat moss because the soil was saturated
at or near surface level which caused high rates of evaporation
c. Remaining water eventually moved through marsh to become the
headwaters of the Tahosa creek.
2. He wants to save all this water and not be subject to administration under the
priority system
a. A developed water right for tributary water, free from the priority
system, may be recognized where a claimant increases the natural flow
of a stream by reducing consumptive uses that existed before the first
appropriations were made on the stream.
3. Developed water right: new water that did not exist in watercourse without
someones labor. Not simply freeing up (or saving) water that was already
there.
4. HOLDING: reduction of consumptive use of tributary water cannot provide the
basis for a water right that is independent of the system of priorities on the
stream.
5. Water right determination and administration act of 1960 provides for
adjudication of rights to tributary water
a. Does not suggest that tributary rights can be obtained independent of
the priority system
6. One who increases the flow of a natural stream by adding water that otherwise
would not reach the stream is entitled to the use of the water to the extent of
the increase.
Water Law - Page 19 of 66

a. No person has been granted a water right free from the call of the river
for water that has always been tributary to a stream.
i. Water was not new to the river but had always been tributary to
the stream.
ii. Plaintiff claims that the water loss from evaporation was never
available for utilization so it doesnt meet this holding.
1. NO GO!
2. Water rights here are based on alteration of existing
physical characteristics of the land; soil and bank
stabilization, wildlife habitat, fisheries, and water quality.
3. In recognizing such right, there are public policy
considerations and resolution should be through the
legislative process.
7. Dont get to skip ahead of senior appropriators because you saved water.
8. Whole class has been about rewarding labor and capital not this case.
a. Dont want people destroying natural habitat in order to appropriate
more water.
9. Notes:
a. Imported water is outside the priority system in the basin in which it is
imported. Such water is subject to the priority system in the basin in
which it originates.
i. Water can be diverted from the basin of origin only when the
diversion is in priority
b. An appropriation is required to store water and a storage appropriation is
subject to the rule of priority.
i. Only able to store when right to store is in priority
1. More senior rights do not require the water
ii. Once lawfully stored, no longer subject to the claims of more
senior appropriators; it can be held and used by the storing party
iii. Right to store water is subject to the priority system but right to
use stored water is not.
c. Return flows are generally offset against the amount diverted; not
considered augmentation but are simply a factor in determining the net
depletion of an appropriation (burden on the river)
e. Geographic Restrictions on Use
i. Coffin v. Left Hand Ditch Co.
1. RULE: the right to water is established by the priority of appropriation of water
and not by riparian proprietorship
a. So long as there is beneficial use, they can take water as far as they
want; water right is not dependent on geographical attachment
b. Also, the right to use water under the prior appropriation doctrine does
not limit the user to using the water in the watershed of its source
2. Facts: LHD owned land which was irrigated by LH creek through a series of
ditches, which placed water in the LH creek by diverting water from the St. Vrain
creek to the James creek
a. Insufficient water to supply ditch of LHD and irrigate lands of Coffin
b. Riparian user: Coffin ripped out dam because the dam diverted water and
left him without enough water to irrigate land
Water Law - Page 20 of 66

i. Argued that CO recognized riparian rights until 1876 and


appellees use (which is non-riparian has a lower priority)
c. LHD contends that the common law principle of riparian proprietorship
applied in CO and not the concept of appropriation. LHD sued Coffin for
trespass and for an injunction to prevent further trespasses in the future
3. Issue: what is the proper legal rule to decide this case?
a. Whether you have right to take water from one watershed to another?
b. Is a geographic connection required?
4. Holding: right to water by priority of appropriation has always been the rule in
CO bc of arid climate and fact that rule of riparian proprietorship would not work
well where rainfall is scarce.
a. It would be inequitable to deprive one of the benefits of the rule simply
because he has, by expending a large amount of time and money, carried
the water from one stream over an intervening watershed and cultivated
land in the valley of another watershed.
b. The first appropriator of water from a natural stream for a beneficial
purpose has a prior right to the extent of the appropriation. Ds right to
water is established by his prior appropriation of water from St. Vrain
creek.
5. Usufructuary right: right to use not right to possess.
6. Wholesale rejection of riparianism in Colorado.
7. Discussion: doctrine of prior appropriation is recognized in western states and in
MS, which generally allows an earlier user of water the right to the water before
allowing later users a right to the water. Whereas, doctrine of riparian rights, is
generally recognized elsewhere and allows equal rights between riparian users.
a. What are some arguments for not taking the water too far out of the
watershed
i. More efficient to take it from the nearest one, there is a lot of loss
when you are transporting water long distances (evaporation)
ii. Export: where the water is coming from
iii. Importer: Left Hand Ditch imports from one watershed to where
they are
8. There are some places that impose restrictions: out of basin diversions:
encourage using it in that area; give priority to where you are trying to take it
from
a. County of origin restrictions; requires compensatory sheds
9. However, can transfer water if using it beneficially
a. May be subject to regulations and statutory law.
10. Notes:
a. Local politics in some states have produced inroads on the freedom to
transfer water from water rich areas to water short areas.
i. state appropriations of water
b. Interstate diversions
i. Dormant commerce clause issues.
ii. Cant sell to Oklahoma: this affects interstate commerce
f. Appurtenance
i. Salt River Valley Users Assn v. Kovakovich
Water Law - Page 21 of 66

1. RULE: Appurtenance: a water right is attached to the land on which it is


beneficially used and becomes appurtenant thereto and not in any individual
or owner of the land; not a floating right, nor once attached to a particular
piece be moved to another piece
a. There are exceptions that say that as long as there is no harm to other
users, then it can be used on other land (No harm rule)
2. Facts: Irrigators improved their use of water and then used saved water to
irrigate additional land; Salt River sued for injunction because D used water on
lands that had no right to use on
a. Defendant was saving water to apply to new lands.
b. Defendant is prior appropriator and P argues that his water saving should
be passed to other appropriators instead of allowing him to save and use
it on another piece of land.
c. Must show injury for injunction: no such harm here, Salt River not
getting less water
3. Issue: whether appropriator who undertakes conservation practices has the right
to apply the saved water to additional acreage? Can water saved from
conservation expand an appurtenance?
4. Holding: original user not entitled to use their saved water on additional acreage
a. Water right attaches to land on which it is beneficially used; it is not a
personal right
i. May only appropriate amount of water from river as may be
beneficially used in any given year on land to which right is
appurtenant
b. May not take a quantity of water in excess of their appropriation even
though they could beneficially use the water upon some other land.
c. Any effort to conserve water and use it more economically is to be highly
commended but doesnt make it legal.
d. Cant use saved water on addl acres. Beneficial use limits to original land
only
e. Want to promote conservation
5. Cant transfer water to land not listed on permit. Reconcile with Coffin: great
weight put on permitting system.
6. There is a presumption that water rights will transfer with property unless
specifically stated otherwise; in which case state engineer would need to get
involved
7. Notes:
a. Water rights may be transferred to new places or purposes of use
pursuant to statutory procedures
b. Where owner of land does not also hold the water right, only the water
rights holder can petition for a change in use.
i. Water districts hold water rights.
c. Some states permit an appropriator to enlarge the lands under irrigation
if the expanded use will not injure other appropriators.
d. Water right is appurtenant such that water rights pass in a conveyance of
land unless expressly reserved.
g. Protection of Means of Diversion
i. State ex rel. Crowley v. District Court
Water Law - Page 22 of 66

1. Rule: subsequent appropriators must take notice of conditions existing at time


of appropriation including the means of diversion
a. Senior entitled to stream when he perfected
2. Facts: P has ditch. P brought case alleging D was acting improperly. D built a dam
and it lowered the river so that Ps ditch could no longer reach the stream. Ps
ditch was suitable and efficient for the purpose and constructed and maintained
to divert water from the river in spite of fluctuations in flow.
3. Issue: Does an appropriator have a right to the quantity and method of
diversion?
4. Holding: Yes. Senior rights are superior unless means are unreasonable
a. Subsequent appropriators take with notice of the conditions existing at
the time of their appropriations.
b. Defendants cannot argue that they are limited by amount but not means
or that as long as they leave the exact amount of plaintiffs appropriation
in the river, they have no further duty and that its his worry how or
whether he can divert it upon his land.
i. His right is to divert and not merely to have it left in the
streambed.
c. Means of diversion must not be unnecessarily wasteful
i. When ditches and flumes are the usual means of diverting water,
parties cannot be compelled to substitute more efficient way
though they will be required to prevent unnecessary waste by
keeping ditches and flumes in good repair.
d. Court rejects argument of means of diversion of water must be
absolutely efficient; method of diversion must be reasonable.
e. Shodde Case: guy had water well (inefficient) to irrigate 429 acres of land.
Power Company wants to use water to irrigate 300,000 acres and service
5,000 people. Who wins? Court held that the power company wins
because it would be unreasonable to allow this farmer to inefficiently use
his water well to irrigate only 429 acres of land when the power company
would be beneficially using water much more efficiently.
i. Reconcile with this case: P was not using water unreasonably.
While it may have been inefficient, it wasnt unreasonable. P had
a right to divert, not a right to flow.
5. Notes:
a. Static or Dynamic?
i. Dont have a vested right to inefficiently divert water.
b. Notice: be some physical/man made structure or constructed attribute
c. Reasonable means of diversion: if senior has reasonable means, a ditch,
the junior cannot challenge it, you should have known how he was
diverting and at the conditions. Compare the method of diversion v. the
point of the diversion.
d. Coase Theorem: Change in rule of liability by itself wont alter behavior
i. Problem with property rights is we dont know where it starts and
ends; not predictable
ii. Gain from preventing harm is greater than loss suffered
elsewhere.
Water Law - Page 23 of 66

h. Access
i. Hallauer v. Spectrum Properties, Inc.
1. RULE: condemnation generally requires that property being taken be put to
public use. But for right of waterways, public use includes putting the water to
beneficial use.
a. Condemnation of any property or rights necessary to apply water to
beneficial use is condemnation for a public use
b. Stat.: private property shall not be taken for private use except for
private ways of necessity, and for drains/ditches on/across lands of
others for agric.
i. "Necessity" is not based on landlocked nature of condemnor's
property, but on necessity for application of water to beneficial
use.
2. Background: licenses are revocable. However, you have to let someone on your
property to collect their property = easement by estoppels.
3. Facts: Hs held water right to water from a spring on neighboring land and
sought to condemn a way across land to transport water to their property for
domestic and other uses. H also had a well that got water from underground
source, that was too cold; so the neighbors got together and allowed H to use
spring water
a. Agreement says that pay money, go and get the right ($500) from
department of ecology; that right was then perfected by certificate
b. New neighbors find pipeline from spring to Hs place and want it
removed
4. History: Trial court said that they cannot condemn it. CoA held that Hs land is
not landlocked and alternative sources of water are available; therefore, no
reasonable necessity to condemn.
5. Issue: Can private party condemn neighbors property for purposes of accessing
water right? (usually only gov. can condemn)
6. Holding: SC reversed b/c there is state statutory authority for the condemnation.
a. Is the showing of necessity to condemn a right of way to transport water
identical to the showing required to condemn a private way of necessity.
b. Condemnation/eminent domain: generally requires that property being
taken be put to public use. But for right of waterways, public use includes
put water to beneficial use
i. Statute provides that a person can condemn a right of way to
transport water where necessary to apply the water to beneficial
use.
ii. CoA applied separate statute requiring property to be landlocked
in order to condemn a right of way.
c. Authority to condemn property for rights of way to transport water is
thus an essential part of the prior appropriation scheme.
d. Condemnation of rights of way to transport water is an integral
component of application of water to beneficial use.
e. Public interest is in the water, condemnation is necessity for water use.
7. Beneficial use is public use: reasonable necessity
Water Law - Page 24 of 66

8. Dont forget just compensation! And equitable portion of maintenance and


operation
9. Federal Statutes: gives private parties right of way across federal lands (must
finish ditch/canal while the land is still federal land
10. Notes:
a. Ditch Rights the right to move water across anothers land, if you have a
ditch and allow water to seep, and allow one to use and then perfect,
they have rights and must continue to cause that seepage
i. Freely transferable, etc.
ii. Can generally what you want with it
iii. Separate from water right
1. Acquisition of a water right does not automatically result
in the acquisition of a right to transport across others
property.
2. However, conveyance of a ditch right may carry with it the
water right or the ditch may be appurtenance with the
water right and passed with it.
b. Inverse Condemnation: person being forced to accept pipe can demand
$$
i. RIGHT TO THE SYSTEM AT THE TIME YOU ENTERED IT
c. Federal Lands: Cannot be condemned for access, you can rent/lease it
i. Limited to a reasonable term, subject to an annual rental, and
highly regulated
d. Modification of Ditch Rights: can modify, like an easement, so long as no
damage occurs
i. Dominant estate can force servient to modify
ii. Servient estate can move an easement provided that the owner of
the dominant estate is not damaged
1. Some states required burdened owner to seek court
approval.
IV.

Regulation
a. The Permit System
i. Wyoming Hereford Ranch v. Hammond Packing Co.
1. RULE: the permit system will be the method of acquiring a water right; but
permits will not be denied except if demanded by public interest.
a. 1890: began using permit system!
2. Facts: Ranch had use but no permit or decree. The statute required a permit.
Hammond Packing got a right with a permit and decree. Ranch claimed
appropriation of 200 acres was after 1890
a. Opposing argument was that permit is only a way to establish priority to
a date before the water is put to a beneficial use; and that one can still
acquire a water right without a permit but the priority would date from
the time the water is put to a beneficial use. This argument also contends
that a statute which requires a permit is unconstitutional.
i. They were putting it to beneficial use before the packing company
came along; saying that they could do either permit, or
appropriation
3. History: District Court upheld.

Water Law - Page 25 of 66

4. Issue: Can lawful appropriation of water be made without a permit when the
state statute requires that after 1890 one intending to appropriate public water
must 1st apply for a permit?
a. Permit is a condition precedent to the right to divert and appropriate
water.
b. Priority date:
i. Constitution as soon as you appropriate it and start using it
ii. Permit: when you apply for the permit
5. Lawful appropriation must uphold permit process for beneficial use. The state
can impose reasonable conditions on water use because the state possesses
the property rights to the water.
6. Holding: court explained that during the state's constitutional convention,
delegates debated whether a water right was established by initiating
construction of a water work or at a later time when the water was put to a
beneficial use. The delegates did not resolve this question. Instead, it adopted a
permitting process.
a. Passed permit law to establish a clearer priority without having to go
through this litigation to determine when you actually diverted water.
Relied on the constitution: does not preclude procedures to doing things;
formal; gives notice
b. If a right may be lawfully acquired by diversion and use since 1890
without compliance with the state laws, it might be impossible to find a
sufficient reason for holding that the right would not have priority as of
the date of commencement of the work. If that condition should prevail,
there would seem to be no advantage to be gained by proceeding under
a permit, and we would be thrown back to the confusion incident to the
haphazard methods of the old system.
7. Notes
a. Several states have dual permit system for stored irrigation water.
i. Primary permit to construct the reservoir
ii. Secondary permit for using the water on a particular land
b. Availability of Water
i. Lower Colorado River Auth. v. Texas Dept of Water Res.
1. RULE: term unappropriated water means the amount of water remaining
after taking into account all existing uncancelled permits and filings valued at
their recorded levels
a. The purpose of the rule to 'grant permits only if there is unappropriated
water' is to eliminate permits that will have only a limited likelihood of
receiving water.
2. Facts: Applicant (water district) filed application to build dam; plenty of water
when weather is wet, but not enough when dry. Argued there were uncancelled
permits that were not using their water and therefore there were unused
(unappropriated) waters. Study was done to allow the staff to obtain a
reasonably accurate scientific estimate whether there was unappropriated water
at points along the river. The existing uncancelled permits and filings, valued at
their recorded levels, leave an insufficient supply of unappropriated water for
the dam.
Water Law - Page 26 of 66

3. Statute allows water right to be issued if there is available unappropriated water


and the new appropriation does not impair existing water rights or vested
riparian rights.
4. Cancellation of permits
a. Violating water rights
b. Not using all of the water appropriated
5. Issue: what is the amount of unappropriated water?
a. Want to assume total maximum authority is actually used
b. District argues for historical use.
i. Doesnt like the historical use argument because it allows double
permitting
6. Look at the high tide (total max flow) to determine unappropriated water.
7. Holding: uncancelled permits (unused permits) must still be treated as
appropriated water in the amount of the water permit. Unused water is not
available for reappropriation until the original permit is canceled.
a. How would they get permits cancelled?
i. Forfeiture action
b. Shouldve asked to have the permits cancelled.
8. Unappropriated water: the amount of water remaining after taking into account
all existing uncancelled permits and filings valued at their recorded levels.
9. Reasoning: Commission will grant permit only if there is unappropriated water
and the appropriation would not impair existing rights or be detrimental to
public welfare.
10. No stacking/double permitting, only finite amount of water. Its not a rule
against the double use of water, its a rule against permitting out quantity that is
greater than the river can supply.
11. Concurring: motion for rehearing came out of the concurrence who wanted to
instead of denying permit wanted to remand it back to the water commission so
they could move forward with the cts guidance so they could keep priority date
12. Notes
a. Stacking/Double Permitting: no allowed. However, in Nebraska, they use
the actual historic flow rule.
b. Two Permit Systems
i. No stacking allows waste
ii. Actual historic use prevents waste
c. Nebraska relied on historical uses (assuming that historical use aligns
with beneficial use which is the maximum amount for water), rather than
amount stated in permit.
c. Public Interest
i. Young & Norton v. Hinderlider
1. RULE: engineer can reject an application for water permit based on public
interest
a. Public interest is broader than just menace to public health and safety;
the statutes are designed to secure the greatest possible benefit from
the water for the public; it is contrary to public interest to approve a
project for which there is not enough water.
b. Public interest analysis required in most states; AK is specific: 8 factors
considered
Water Law - Page 27 of 66

2. Facts: H filed for a permit in Oct 1907 to appropriate 200 second ft of flow and to
construct a storage reservoir for 12k acre-ft to reclaim and irrigate 14k acres.
Y&N applied for a permit in Dec 1907 to irrigate 5k acres from the same stream,
including a reservoir to store 10k acre-feet of flood waters.
a. In 1908, Y&N filed a protest against Hs app.
b. Hs app was rejected because a) it covered considerable public land and
Y&Ns private land, b) Hs project would cost twice as much per acre ($40
v $20), c) there was only enough water to irrigate 5k6k acres, and d)
Y&Ns project is for the irrigation of settled land.
3. History: On appeal to Board of Water, H was granted the permit. District court
affirmed Board.
4. Holding: CoA determined that public interest is broader than menace to public
health and safety;
a. Statute provides that charges for irrigation shall be reasonable; but
what is reasonable in any case must depend largely on cost of
constructing and operating irrigation works
b. Factors to consider when deciding if against public interest: price, what
water is being used for; settlers vs. non-resident; benefit-cost analysis
i. No finding that cost of Hs project was prohibitive for farmers
ii. Opportunity cost: Alternative projects: must be at least on the
drawing board before the court can refuse another in favor of it
1. Purpose must be reasonable and amount you want must
be reasonable for that purpose
2. Instead of denying the permit, make a compromise; is
there some way to recognize senior applicants right while
still working in the public interest.
c. Case remanded with the matter left open to the introduction of any facts
bearing on the question of public interest.
i. Obtain facts through water comms and engineer whether there is
enough water for the 14k acres, whether cost of Hs project would
be such as necessarily to make the irrigation charges under it
prohibitory or excessive
5. Other issues:
a. Externalities not considered when deciding whether to engage in the use
tend to cause resource misallocation
b. Is beneficial use different from public trust doctrine?
i. Changes in beneficial use after apps are granted; those owners
should still be responsible for public trust issues
ii. Shokal v. Dunn
1. RULE: must consider whether application will conflict with local public interest:
affairs of people in the area directly affected by the proposed use (locally
important factors)
a. Public interest should be read broadly to secure greatest benefit from
the waters
i. Relevant elements and weights will vary among local needs,
circumstances and interests.
b. It is in public interest that streams be protected against loss of water
supply to preserve minimum stream flows required for protection of fish
Water Law - Page 28 of 66

2.

3.

4.
5.

Water Law - Page 29 of 66

and wildlife habitat, aquatic life, recreation, aesthetic beauty,


transportation/navigation values, water quality.
c. AKs statute contains other elements which ought to be considered:
benefit to applicant, economic effect, loss of alternative uses, harm to
others, effect on navigation or public waters, and intent and ability of
applicant to complete the project, minimum stream flow, discourage
waste, and encourage conservation
Facts: Trout Co. was issued a permit for fish propagation and hydropower
generation (by Dunn). Shokal protested this issuance appealed to the district
court.
History: D. Ct. reversed/remanded because there was inadequate consideration
of 1) financial ability of applicant to complete project, and 2) local public interest
with respect to project.
a. Permit was again granted after changes to project. Ct
reversed/remanded again. Appeal
b. In pari material: if two statutes are passed in the same way at the same
time, may be interpreted similarly.
Issue: what is local public interest? Were the hydropower and fishing permits in
the public interest?
Holding: Ct affirmed the remand but for different reasons
a. Water Res. used proper standard for and adequately addressed financing
issue
b. Issue left to consider on remand is whether app will conflict with local
public interest
i. Leg. provided guidance in related statute and assistance from
sister states: proposed appropriations benefit to the applicant, its
economic effect, its effect of loss of alternative uses of water that
might be made within a reasonable time if not precluded or
hindered by the proposed appropriation, its harm to others, its
effect upon access to navigable or public waters, and the intent
and ability of the applicant to complete the appropriation.
ii. Also: minimum stream flow, discourage waste, and encourage
conservation
c. Public use is the availability of the public to use; it doesnt have to be
used to be kept. Public use is not easily monetized but can be very
valuable.
d. DC Judge provides specific guidelines:
i. Finality of Design: Design plans should be definite enough to
reflect impacts and implications (final, detailed and not
schematic)
1. S. Ct. said that such final plans are not always necessary
when applying: design plan depends on the nature of the
facility, complexity of proposal, and extent of impact on
local area
ii. Dewatering: DC judge merely said that "appropriator's rights
prevail over riparian rights"
1. S. Ct. says that it fails to account for the state's policy of
providing for minimum stream flow, and publics

legitimate interest in stream environment, wildlife,


recreation, and alternative uses.
a. But agrees w/DC that Water Res. dealt properly
with this
iii. Health Hazards: director has authority to consider whether design
of any particular facility will meet all environmental reqs; there is
authority to withhold a permit until there is a design proposal
that appears to comply with water quality standards
1. S. Ct. agrees but adds caution regarding differing functions
of Water Res. and Dept. of Health/Welfare; Water
oversees water resources of the state insuring those with
permits use water in accordance with conditions; it is not
the primary job of Water to protect health and welfare;
that is Dept.s job along with compliance w/water quality
regulations, and monitoring effluent discharge of
waterways
6. Other issues:
a. Standard of Review for what the Water Resources Director has decided
i. Record review: look to see if the agency has been arbitrary and
capricious
ii. Agency must put together administrative record: does it
substantially support decision?
b. What are necessary factors for accepting app?
i. Flexible standard: blueprint plans not necessary. Just needs to be
sufficient to convince the public of the efficacy of the plan
ii. Financial ability; file app in good faith not speculation
iii. United Plainsmen Assn v. North Dakota State Water Conservation Commn
1. RULE: Public trust doctrine requires at a minimum, a determination of future
water needs of the state and this involves planning
a. Public trust is broader than public interest; public interest does not
require planning
b. Public trust includes water, not just conveyances of land
2. Facts: UP sought to enjoin NDSWC from issuing permit for energy development
until there is a comprehensive short- and long-term plan for conservation and
development of the states natural resources because it is required by the public
trust doctrine
a. DC dismissed for failure to state a claim upon which relief can be granted
b. Public Trust Doctrine: the State holds the navigable waters, as well as the
lands beneath, in trust for the public.
3. Issue: does statute mandate a planning responsibility?
4. Holding: DC erred, denying restraining order and remand. Court says no mandate
a. Discretionary authority of state officials to allocate vital state resources is
not without limit, there still is a common law public trust doctrine and
state cannot abdicate its trust over property which people are interested
in; property cannot be left entirely under use and control of private
parties
b. Public trust doctrine is broader than just conveyances of land. Statute
defines public waters and requires at a minimum, a determination of
Water Law - Page 30 of 66

future water needs of the state, and this involves planning. There needs
to be evidence of planning!
c. No TRO: may be granted if it appears that the Ps are entitled to relief
requested and that such relief consists of restraining acts which would
produce injury to the plaintiffs during litigation
5. Notes:
a. Most states have statutes for water planning; however, about half were
never completed or had become outdated and there were no ongoing
planning efforts
b. Many states have moved toward strengthening the connection between
water planning and land use via statutes requiring certain projects to
demonstrate long term assured water supply before approval.
c. Preference statutes are a more static form of planning.
d. Ecosystem management is a type of planning that is receiving increasing
interest.
d. Adjudication and Enforcement
i. Farm Investment Co. v. Carpenter
1. Facts: D was first appropriator without a permit (not perfected right). P had first
permit. P wants to be true senior.
2. I - Is it constitutional for water board to set water rights?
a. P contends that a determination of the priorities of rights to the water
involves solely a judicial inquiry and that the jurisdiction to undertake
said investigation and adjudicate can be constitutionally lodged only in
court.
3. R - Agency actions limited to delegated duty, under the state constitution, the
determination of water rights is administrative and not judicial. Only producing
evidence of title to a right, it is not solving the dispute. Water user has
recourse to courts if state officials action impair substantial water right.
a. An administrative board with experience and peculiar knowledge can
solve the questions involved with due regard to private and public
interest, conduct the requisite investigation, and makes ascertainment of
individual rights, with greater facility, at less expense to the interested
parties, and with a larger degree of satisfaction to all concerned.
4. Notes:
a. Could be lucrative for lawyer, two bites at apple (agency and court)
b. Title is only evidence of a right, but a court must determine
c. Administrative agencies do not typically have exclusive jurisdiction and
unadjudicated rights may be litigated in suits between private parties.
ii. Rettkowski v. Department of Ecology
1. Facts: P farmer is pumping groundwater from creek, hurting cattle ranchers.
After researching the issue, and finding that there was a connection between the
groundwater withdrawals and the diminished flow, the D agency orders cease
and desist.
2. I - did agency have authority to adjudicate water rights after permits were issued
3. R - agency is limited to delegated authority from statute or constitution
a. Agency is deciding who gets water, it cannot do this under the law, its
for courts
Water Law - Page 31 of 66

V.

b. Court thought agency was trying to illegally expand power on broad


enabling statutes, they look more like policy, not rules
c. It is because of the complicated nature of such inquiries that the
Legislature has entrusted the superior courts with responsibility therefor.
4. Notes:
a. The DoE can make tentative determination of water rights in connection
with the issuance of permits and extended this ability to include DoE
determinations regarding beneficial use in ruling on applications for
changes in water rights.
b. Not about permitting and making rights vest; question was if agency
could determine which right was superior, these are property rights
c. Agency cannot decide whose right, once perfected is superior
d. Hypo: permit for stream for X quantity, you irrigate for 10 years but only
less than total of permit. Your permit is the historical NOT the actual. This
is for courts not agencies as there is a right vested but now must
determine
i. Then how does an agency handling a call?
1. The priority has already been established and there is no
adjudication
2. This can have effects on juniors too, complicates the issues
e. Perfection
i. Pure CL: get by beneficial use
ii. Permitting System: right perfects with the permit and the amount
of the use
iii. Conditional right upon appropriation, this is perfected by permit
by amount of use
f. Conditional Decree: perfects on use and becomes a decree
Water Distribution Organizations
a. Mutual water companies
i. Private associations of irrigators that provide water at cost to their members
ii. Non profit corporation
b. Other private organizations
i. Ditches shared by several people under more informal agreements
1. Variously joint, common, and partnership ditches.
ii. Governed by the law of property, contract, or partnership.
iii. Commercial or for-profit company that contracts to distribute water to users for a fee.
c. Acequias
i. Community ditches, common in New Mexico and Colorado.
ii. Indian customs
iii. Recognize that water is a commodity and commons character outside of the community
1. Inside the community, it is a commons.
a. Better at
i. Efficiently using the water
ii. Resolving disputes
iii. Satisfaction between parties
d. Ownership
i. Who owns the water right?
1. Water distribution organization

Water Law - Page 32 of 66

VI.

2. Consumer
ii. Water users squabble amongst themselves; water user might be at odds with
distribution center; organization might dispute with other appropriators outside the
organization over priorities and shares of the stream.
e. Public utility status
i. Subjects many of a companys financial and operational matters to public regulation.
f. Irrigation districts
i. Edwards Water District
ii. Public entities moderate/regulate water in a certain area
iii. Some are regulatory authorities.
g. Other special water districts
i. Statutes authorizing multipurpose districts that control water for irrigation, drainage,
flood control, municipal water supply, etc.
h. State projects
i. Federal reclamation projects
i. Irrigation districts organized as fiscal agents for contracting with the United States
Bureau of Reclamation, which has built storage and conveyance projects throughout the
west with federal financing.
Loss
a. Abandonment
i. Must have intent to abandon separates it from forfeiture
ii. Intent to abandon and non-use
iii. East Twin Lake Ditches and Water Works, Inc. v. Board of County Commrs
1. RULE: "Abandonment of a water right" is defined as "the termination of a
water right in whole or in part as a result of the intent of the owner thereof to
discontinue permanently the use of all or part of the water available
thereunder."
a. Elements: sustained period of non-use and intent to abandon
b. Person claiming abandonment has burden of proof; if there is no use for
a certain number of years, then there is a presumption of abandonment
which shifts the burden to the one defending the claim
c. Need objective and credible evidence that there was no intent to
abandon
i. Subjective statements of intent are not sufficient to rebut
presumption (past statements are more credible: statements
made 10 years ago about intent)
2. Facts: ETLD argued that Board had abandoned water right in Derry Ditch as a
result of approx. 30 years of non-use and decision not to improve (line) ditch
(because funds were not available)
a. ETLD claims that there was no intent to abandon and that the county and
TLR engaged in numerous activities that were inconsistent with an intent
to abandon.
b. Water court ruled "no abandonment" and ETLD appealed.
3. Issue: Do you abandon a right just because you are not making beneficial use of
it?
a. Abuse of discretion standard
b. Plain error reasonable conclusion
4. Holding: record reveals sufficient evidence to support the Trial Ct. finding of no

Water Law - Page 33 of 66

abandonment.
a. Holder of the water right (the county in this case) and previous owners
engaged in activities inconsistent with an "intent to abandon;" tried using
ditch, made some improvements and repairs, but decided to not line the
ditch.
i. Requires two elements: sustained period of non-use and intent to
abandon.
1. Intent subjective/difficult to prove, law provides that
failure to apply to beneficial use for 10 years creates
rebuttable presumption
2. Burden of proof then shifts to the owner of the water
right to rebut with evidence that justifies non-use and an
intent not to abandon.
3. Evidence to rebut presumption: 1) repair/maintenance 2)
attempt to use water 3) records of diverting water; no
docs suggesting abandonment 4) diligent efforts to sell 5)
filing docs to preserve right 6) leasing right 7)
economic/legal obstacles to exercise right
ii. Because it is fact-based decision, court will not disturb the water
courts decision unless evidence in the record is wholly
insufficient to support decision
1. Testimony by landowner is valid evidence but inadequate
to rebut.
iii. Clearly there is no beneficial use here: why do we protect it?
1. There are other people willing to put this to beneficial use.
2. Water permit is a property right
3. We want to be sure its abandoned before we take it
away.
5. Dissent: affirmative decision not to make repairs necessary to utilize water right
is convincing evidence of intent to abandon; economic obstacles were "run of
the mill," not extraordinary like general economic depression or war; efforts to
sell land and water were due to speculation in land market, not an effort to have
the water put to a beneficial use.
6. Other
a. To rebut the presumption of abandonment a party must establish some
fact or condition excusing the long period of nonuse, not mere expression
of hope or desire reflecting a gleam in the eye philosophy regarding
future uses of the water.
b. Where an appropriator is decreed water in excess of his needs, the
failure to put such excess to use constituted an abandonment.
c. Water right is right to use the molecules, but government still owns the
water molecules
d. Sanctioning speculation?: kind of; if take away water, then land it
supports is worthless
b. Forfeiture
i. Rencken v. Young
1. RULE: forfeiture follows failure to use water for a period of time regardless of
owner's intent.
Water Law - Page 34 of 66

2.

3.

4.

5.

6.

Water Law - Page 35 of 66

a. Proponent of cancellation must show nonuse; however burden doesnt


shift to permit holder; burden remains w/proponent to prove by reliable,
probative, substantial evidence that permit holder had failed to use
water for 5 yr
b. Leg. changed this to be when you dont use for 5 yrs, rebuttable
presumption created
c. One ct held that forfeiture requires a voluntary act (not F if unable to
farm bc floods)
d. Different from abandonment which requires a showing of an intent to
abandon.
RULE 2: revival by resumed usesubstantial use of water cures the forfeiture
as long as no forfeiture proceeding has commenced
a. Other states require that forfeiture proceedings must be brought w/in
15yrs after a resumption of use
b. State engineer cannot deny change apps because he believes they have
been forfeited. Need a forfeiture action
Facts: Water right had been granted to Rencken the use of water to irrigate 10
acres. Neighboring appropriators complained that he hadnt used water for five
successive years. Water Resources canceled Rs water right. The district court
upheld the decision. Supreme Court remanded to Water Resources.
a. R had been found to have not used water for five successive years. He did
not use 1979-1982 (except for .1 acre), in 1983 he made a small pond, to
receive and hold water, installed pump to use the pond water for
sprinkler system. He then irrigated in late Oct or early Nov. Irrigation
season ends on Oct 31, thus an argument was made that if irrigation did
not start until Nov, there was no irrigation during 1983 irrigation season.
b. Permit says during irrigation season
Issue: Does state law provide for abandonment or forfeiture after failure to use?
a. Answer depends on whether statute is a forfeiture one or an
abandonment
b. Does "five successive years" mean irrigation seasons or calendar years?
i. Ct did not answer; instead it found that Rs water right is limited
to irrigation season (Mar to Oct) and use outside irrigation season
(Nov) was not in right.
Holding: This court interpreted the statute to be one of forfeiture. Was
remanded because the Director was mistaken in believing that the burden of
presenting evidence shifts but the proponents had the burden.
a. Statutory intent
i. Used the word abandonment construed as forfeiture
ii. Burden shifting was not allowed.
Notes:
a. Unauthorized use may amount to forfeiture. Make sure to look at your
permit or decree!!!
b. Adoption of a forfeiture statute does not necessarily result in rejection of
abandonment.
c. Some states require a voluntary act in order to meet the forfeiture
standards; other states use intentionally or unintentionally language.
i. Cant forfeit a right when the stream is dry for 5 years.

d. Some states require the proponent to show that he would be benefited


by a declaration of forfeiture.
e. May be able to revive water use by sing the water before a forfeiture
declaration.
f. While forfeiture statute may appear to be self-executing, due process
requires a hearing before forfeiture occurs.
g. Forfeiture and abandonment can help reduce the divergence between
water records and actual water use.
c. Prescription
i. Archuleta v. Gomez
1. RULE: A water user can acquire the water right of another user by adverse
possession if the possession is actual, adverse, hostile, under a claim of right,
open, notorious, exclusive and continuous for the prescribed statutory period.
a. Water of the state cannot be adversely possessed
i. Adverse possession can arise b/w 2 water users only if it occurs
after water has been diverted from original source (before water
is diverted from its original source, it is considered the state's) and
ii. An abandoned water right cannot be adversely possessed because
once it is abandoned, the right has returned to the state
b. Claimant must offer evidence that he made actual beneficial consumptive
use of all or any of the others water rights
c. Interception of water is not enough-does not show that it is hostile-have
to actually use it against their will
i. Some states have said that there is no adverse possession of
water rights
d. Cannot adverse possess a stream
e. Cannot adverse possess above a headgate or diversion works
f. Cannot adverse possess abandoned or forfeited water
g. Cannot enlarge the original water right
i. Cannot augment by adverse possession
h. Cannot adverse possess state water
2. Facts: A &G own neighboring parcels, both originally owned by S. A ditch runs
through Gs upper parcel, M ditch 1 runs through western part of Gs lower
parcel
a. A sought to enjoin G seeking restoration of 3 ditch right-of-ways and
delivery of water
b. G argued against injunction on the basis that G had adversely possessed
As water right.
c. The water court agreed with G; denied and dismissed As complaint
i. Based on evidence that G filled in one of the ditches; intercepted
water bound for As land; G participated in rotational agreements
that did not include A; A did not contribute to ditch maintenance
and did not pay ditch assessment
3. Issue: whether, under all surrounding circumstances, the practices of water use
b/w rival claimants are consistent or inconsistent with the claimed adverse use
4. Holding: Colorado Supreme Court reversed and remanded.
a. Claimant must show that adjudicated irrigation water right at issue was
continuously put to beneficial use on lands irrigated by the claimant,
Water Law - Page 36 of 66

rather than deeded owner


b. Facts suggest that portion of As adjudicated rights may have been
abandoned to stream, portion adversely possessed by G, some might still
belong to A
i. If A abandoned the water, it is the state's and cannot be
reclaimed
ii. G can claim some of As (unabandoned) water right to the extent
G was using more water than G was entitled to and the excess
water used by G was As.
c. S. Ct. determined that G had not met burden of proof for adverse
possession b/c he offered no evidence that he made actual beneficial
consumptive use of all or any of As water rights
i. For example, G, the court suggests, could have shown excess use
by documenting that he was using more and A was using less than
in the past.
d. Remanded but quantity of water that remains As, that is adversely
possessed by G and that has been abandoned by A cannot exceed the
historical beneficial consumptive use
5. Factors that need to be established:
a. A must prove water rights he seeks to compel G to restore deliveries for
have not been abandoned
b. G can prove adverse possession only by demonstrating actual beneficial
use of water
i. Must be in an amount above that which G had available to him
and used
6. Dissent: this is the first time that they include rule that for adverse possession of
water right to be successful, claimant must show he beneficially used a specific
quantity expressed in acre-ft
7. Not a common outcome: if this were the situation, but G had actually put it to
beneficial use, there may have been a different outcome
VII.

Transfer
a. Farmers Highline Canal &Reservoir Co. v. City of Golden
i. RULE: water is a property right, subject to sale and conveyance, and that under proper
conditions not only may the point of diversion be changed but likewise the manner of
use.
1. Must show that the rights of other users from the same source are not
injuriously affected by such changed, and the burden of proof thereof rests on
petitioner.
2. Junior appropriators have vested right in the continuation of the stream
conditions as they existed when they acquired their appropriation.
3. Instead, if change would deplete source, conditions should be imposed to
counteract the loss, and if the loss cannot be counteracted, petition to change
point of diversion should be denied
ii. Facts: City petitioned for a change in the point of diversion. It had recently purchased
irrigation rights and wanted to convert them to municipal uses. Two engineers testified
for either side and used different statistical theories

Water Law - Page 37 of 66

1. Trial ct granted the petition with findings that did not align with its order (found
no injury if 1.2 cfs were changed but then ordered 1.76 cfs to be changed). --allowed for 1.76 cfs to be changed
iii. Holding: Water is a property right, subject to sale, its point of diversion/use can be
changed. Other users from the same source cannot be injured by the change; burden of
proof is on party petitioning for change.
1. Irrigators (the prior appropriators in this case) cannot waste water, extend the
use of their water, or lease (to another user) water they (the irrigators) are no
longer using.
2. General injury to the stream does not mean "no injury to the junior
appropriators."
a. Where general injury would result to the stream by the transfer, the
change could not be authorized without injury to junior appropriators
because it is their rights, proportionate with senior rights, that consume
the whole stream.
b. Quantity of consumptive use and return flows after change in point of
diversion can be considerations in deciding whether the change will be
injurious to junior appropriators.
3. It is the purpose of the law to protect all appropriators.
a. If it appears that the change will result in depletion to the source of
supply and result in injury, the decree should contain conditions as are
proper to counteract the loss, and should be denied only in such
instances where it is impossible to impose reasonable conditions.
b. All elements of loss to stream by virtue of proposed change should be
considered and accounted for; appropriate limits inserted in decree as
the facts would seem to warrant
c. Generally keeps stream status quo, but many change applications are
confirmed
4. Transfer: change in use/diversion point: here, juniors injured by change; juniors
do have claim
5. If just a general injury: then the change is ok; If it is a specific injury then there is
a problem
iv. Notes:
1. Transfer refers primarily to changes in water use, not to mere changes in
ownership.
a. Water rights are usually appurtenant to the land and are automatically
transferred when land is conveyed unless expressly stated in the deed.
2. Historical consumptive use v. reasonable use: Probable return flow v. reasonable
amount of use: mostly looking at what is a reasonable amount of for use
i. In Texas case: they went with maximum allowed use
3. What are some of the difficulties in no harm rule?
a. There may always be harm; keeps it where it is, messes with free
markets; will change really cause injury (proposer of change has burden
of proving that no harm)
b. The transaction costs and uncertainty generated by the no-injury rule
substantially impede the transfer of water rights and the development of
water markets.
Water Law - Page 38 of 66

c. Many water uses are peculiarly interdependent. Since the same water
can be reused by several persons, all may have water rights that entitle
them to receive the same molecules of water.
4. You can only transfer what you have; if you have abandoned some, then you
cannot transfer it
5. On remand: if change would harm junior appropriators: what could the court
do?
a. Is it all or none? Do they have to reject it?
b. There is a lot of flexibility here: can allow up to the point of harm; can
impose conditions
6. If it is US water right, it has to be the applicant, it can invite co-applicants
b. Bonham v. Morgan
i. RULE: State engineer must investigate and reject the application for either
appropriation or permanent change of use or place of use if approval would interfere
with more beneficial use, public recreation, natural stream environment, or the public
welfare
1. Majority of states do have some type of public inquiry when it comes to
transfers
a. Colorado: no public interest review of appropriations or transfer
ii. Facts: applicants sought change in point of diversion, place and nature of use; P sued
state engineer
1. Case was dismissed for lack of standing; P appealed claiming that applicants
change leads to annual flooding of Ps land and this would detrimentally impact
public welfare;
2. Engineer concluded that he could not consider Ps concern because he is limited
in considering the impact of vested water rights and P does not have any in this
case
3. P argued that statute gives standing to any person aggrieved by engineers
decision; statute requires an evaluation of all damage to public/private property
4. The National Parks and Conservation Association intervened as well as nine
water districts and municipalities.
iii. Issue: what criteria must agency apply when deciding whether to allow a change in use
of water
1. Whether in permanent change apps the state engineer has the same duties with
respect to approval or rejection of apps as he has when considering
appropriation apps?
a. If so, the state engineer concedes that plaintiffs are aggrieved persons
b. If not, the plaintiffs concede that they are not aggrieved persons
iv. Holding: state engineer is required to undertake the same investigation in a permanent
change as the statute mandates for an original appropriation; complaint is reinstated.
1. 73-3-3: for permanent changes, go back to 73-3-8 (procedure in the state
engineers office and rights and duties of the apps w/respect to applications for
permanent changes of point of diversion, place or purpose of use shall be same
as provided in this title for appropriation apps
2. 73-3-8: detrimental to public welfare -does apply to permanent change
applications so you do have to take into consideration public welfare
3. Consider how it impacts the ability of the public to transfer water rights
Water Law - Page 39 of 66

VIII.

4. Note 8: One economist has argued that there is little the government can or
should do about the indirect economic and social dislocations which result from
water transfers beyond existing wealth redistribution programs such as
unemployment compensation and welfare
a. Others argue that water is a social good in which interest of the public is
paramount; to treat it as a commodity and allocate it on basis of
economic efficiency alone is mistake
Recapture and Reuse
a. Department of Ecology v. Bureau of Reclamation
i. RULE: as long as water is on land, it belongs to appropriator; once it leaves land, it
becomes issue of whether original appropriator intended to recapture it
1. Holder of water right owns no title to the water until it is diverted; and once
diverted, the holder owns a personal property; but does the appropriator's right
continue in the water even though it has been used, left the appropriator's land,
and entered a natural watercourse?
2. US water rights: can retain until abandonment (they cannot abandon it without
Congress say so)
ii. Facts: large federal irrigation project diverts water from Columbia River. Farmers pay fee
to cover a portion of cost of project, are allowed to use diverted water for irrigation
purposes. Return flow waters accumulate and these are made available by gov to other
farmers for irrigation (again) but at lower cost.
1. Hanson owns land w/in boundaries of the project and on which a stream flows
with return flow water. H applies to the state for right to use return flows to
irrigate more of his land. Even though Hs use of water wont interfere with
current/foreseeable users, the gov opposed app.
2. State granted the permit: waste seepage return flows: app was for permit for
return flows
iii. Issue: on appeal, whether return flow water is still subject to the water right held by
federal gov?
iv. Holding: as long as water is on land, it belongs to appropriator; once it leaves land, it
becomes issue of whether original appropriator intended to recapture it (ct tries to
accommodate both args)
1. One argument is that the water remains the appropriator's as long as it is on the
appropriator's land; geographical test; in that case, the federal government
wins.
2. The state's argument is that the right to the water terminates when appropriator
has relinquished possession w/out intent to recapture, regardless of water's
location; in that case, H wins because federal project has no intent to recapture
the water (even though the water is still within the boundary of the irrigation
district).
3. H should not have been granted the water permit in this case because it was still
on land
v. Test: WA: applied both tests: geographic test first and then added reclamation
argument (control test)
1. Takes into account free rider problem (we spent lots of money on this system
and you cant just go to the dept of ecology and get it for free)
a. After project boundaries: is it ok that they are keeping control of it?)
2. CO: water available for appropriation once it is on its way to natural stream

Water Law - Page 40 of 66

3. If it is on your property and you are not using then you have abandonment
issues
a. If it is on your property, you can reuse it
vi. Notes:
1. If Hansons permit was upheld, Hanson would be able to obtain the water
without having to pay his fair share of the systems costs.
b. Fuss v. Franks
i. Facts: waste water from the Ps (Fuss) land flowed in a ditch and under a road. Fuss,
without a permit, then used the water to irrigate another tract of land.
1. D applied for a permit to divert water from the ditch at a point that lay between
Ps 2 tracts.
ii. Issue: was the water from the highway borrow pit lawfully appropriated by Franks
1. Resolved by answering whether or not state engineer had authority to approve
his permit
a. The permit having been issued to Franks constituted prima facie evidence
of his right to take the water; P must allege facts that show that they had
a right to the water superior to Franks
b. Fuss argues that he is reusing seepage water
iii. RULE: seepage water, if not intercepted, would naturally return to the stream, is just
as much a part of the stream as the waters of any tributaries and must be permitted
to return thereto, if the owner cannot make beneficial use thereof
1. Appropriator who captures upon his land waters not fully used for irrigation
may recapture water for beneficial use upon his land for which water had been
appropriated
iv. Holding: Fuss has the right to recapture the water and use it on the same land and also
has the right to recapture the water to use on other land if he acquires a permit.
1. Since P met neither of those in this case, and the water had left Ps first tract and
was on its way to a natural stream, Franks could acquire a permit to divert it.
2. Franks' permit was valid because the Fusses, Bremers and Baumgartner had no
superior right to the water after it left their properties to accumulate in the
collection ditch and from there flow to the highway right-of-way borrow pit
c. Thayer v. City of Rawlings
i. Plaintiffs have always gotten their water from a river and tributary to the river then
discharged the resulting effluent into a channel at a point above the point of diversion
at which defendants diverted the water for irrigation, pursuant to a certificate of
appropriation
ii. In order to be in compliance with state and federal water laws, city must not meet
certain standards before discharging the water. Plaintiff proposes to establish a lagoon
system at a location below the defendants point of diversion.
iii. Trial court held that the defendants were not entitled to compensation for the loss of
this water.
iv. Issue: do the defendants have a legally protected right in the discharge? Does the junior
have a right to the stream as it existed when appropriated?
1. Plaintiffs claim that the creek has become a natural stream subject to
appropriation, entitling defendants to protections afforded to other holders of
water rights.
v. Importer of water has a right to reuse, successively use, and make disposition of
imported waters and this right cannot be abandoned.
Water Law - Page 41 of 66

1. Generally, junior appropriators have vested rights in continuation of stream


conditions existing at the time of their appropriations.
2. One who by his own effort adds to the supply of a stream, is entitled to the
water even though a senior priority may be without water. A person should reap
the benefit of his own efforts, and a priority relates only to the natural supply of
the stream at the time of appropriation.
vi. Rooney Dissent:
1. First, matter is prematurely in the courts and the board of control should first
apply its expertise
2. Imported water is no less precious than any other water. The mere fact that it is
transported does not make it more subject to waste.
Riparian Rights
Generally east of Mississippi River
I. Basis of Right
a. Anaheim Union Water Co. v. Fuller
i. F P, irrigator claiming that D use is illegal. D, diverting in same watershed, thus legal.
ii. R1 - Riparian uses of water are only legal in their respective watershed
1. Riparian Right is confined the watershed
2. Mill creek is tributary to Santa Ana so all land is within general watershed.
iii. R2 - When two streams unite, each has own watershed above it for riparian use rule
iv. Why do we care about watershed?
1. Return flow goes back to watercourse
v. Where is the beginning and end of the watershed
1. Look at each stream separately
2. Watershed stops at point of diversion of another stream.
vi. P wasnt injured
1. If we allow everyone to divert, there would be injury somewhere
2. Riparian rights=correlative right
a. Obligation to another riparian landowner not to pump negligently and
not to waste the water resources and not injure another.
vii. Court enjoins the use: per se unreasonable
1. Dont care about beneficial use. Is the use reasonable? Using water that is not
yours is unreasonable.
viii. Notes:
1. Source of Title Test
a. Riparian rights only diminish, they generally cannot grow
b. Right only extends to smallest tract held in one title; thus, even if the
original riparian owner later reacquires the tract, only the smallest parcel
with frontage on the waterway has riparian rights; any land ever severed
from contact with the waterway by conveyance an never regain riparian
rights.
c. Promotes water conservation
d. Prevents use water over transferred lands
2. Unity of Title Test
a. Riparian rights extend to all lands held in one title
b. Does not matter that land had earlier been divided into several parcels ,
some of which did not front on the waterway.
Water Law - Page 42 of 66

c. All land contiguous to a riparian parcel that is held by the same riparian
landowner has riparian rights regardless of when or from whom the lands
were conveyed.
d. Promotes use of lands
e. Encourages over consumption
b. Thompson v. Enz
i. F P, riparian landowners on the lake. D, subdivision builder who wants to build canal
around land, want to preserve property value. D will create 150 lots, 16 will abut
lakeshore; want to give back lots access to water by dredging artificial waterways and
creating a man made shoreline.
ii. I Can a riparian right attach to artificial watercourse?
iii. R1 - Riparian Rights do not attach to artificial watercourse
iv. R2 Riparian Rights are not ALIENABLE. Unless bounded by natural watercourse
1. So D cannot convey riparian right to back lots either.
v. Dissent: should have created an easement, would have been the solution
1. The majority is diminishing the property by not allowing the water use.
vi. Riparian Water Right v. Right of Access
1. If parcel of land has easement to road and land is subdivided all parcels still get
easement to road automatically. Appurtenant to land.
2. Not the same for water right
vii. Notes:
1. Preservation of riparian status when subdivision
a. Use corporation to create stock in water right
b. Held by tenancy in common under source of title rule
2. Money Issue: property value would go down with more users
3. Diffused surface water:
a. Common enemy
b. Common law
c. Reasonable use
II. Reasonable Use
a. Harris v. Brooks
i. Harris: fishers; Brooks: rice farmer
ii. Fish stop biting because the rice farmers are pumping all the water; impairment of
Harriss right.
iii. Does normal level of lake cause fish to bit?
1. Noproblem with causation
iv. No Injury Rule
1. Not clear that pumping caused injury
2. Game warden said fish were endangered
v. Holding: Must leave water at normal levels (dont know that this will solve the problem)
1. All riparian owners have an equal right to make reasonable use of water, subject
to other riparian owners rights.
vi. Natural Flow theory
1. Cannot significantly interfere
2. Taking a pail of water could technically be in violation of this theory.
vii. Reasonable Use theory
1. Shared resource; correlative rights
viii. Preference for domestic use
Water Law - Page 43 of 66

b.

c.

d.

e.

1. This is making lawoverstepping boundaries of court


ix. When one lawful use of water is destroyed by another lawful use, the latter must yield,
or it may be enjoined; when one lawful use of water interferes with or detracts from
another lawful use, then a question arises as to whether, under all the facts and
circumstances of that particular case, the interfering use shall be declared unreasonable
and as such enjoined, or whether a reasonable and equitable adjustment should be
made, having due regard to the reasonable rights of each.
Orr v. Mortvedt
i. Parties are landowners on a quarry lake, non-navigable.
ii. Can an owner of a portion of the lake bead use the entire lake or only his portion?
iii. Common law: right to use surface water over your land
1. Difficult to administer
iv. Civil Law: entitled to reasonable use of entire lake
1. Similar to joint tenancy
2. Free access
3. Furthers complete use of resources
v. Holding: common law wins
vi. Dissent: should share the water, avoid putting up boundaries.
Botton v. State
i. Ps are landowners on lake who want to stop access to the lake. D is the state who put a
boat ramp on the lake and the public tore it up.
ii. May owner have access to the entire lake if access is reasonable?
1. An owner of subsurface or owner of land abutting watercourse has reasonable
access to the entire lake (civil law rule)
a. The public use (citys actions) was an unreasonable interference
b. Riparian rights are not alienable and so you cannot sell your part of the
pie
2. The state must have an administrative plant to curtail such behavior.
Evans v. Merriweather
i. P was a lower mill operator, D an upper mill operator. P alleged that D used too much of
the water so that P could not run the mill.
ii. To what extent can a riparian use the water of a non-navigable stream?
1. Riparian use must be reasonable; cause as little injury downstream as is
consistent with the use.
2. Everyone is expected to bear some inconvenience but not unreasonable harm.
3. No party has the right to use all of the water.
Farrell v. Richards
i. Both parties have mills on the pond. D started growing cranberries by digging a ditch
and damming the water. The dam prevented P from using his mill
ii. Can one riparian diminish the quantity of water available to another?
1. Under natural flow, reasonable right to divert is limited to the extent that it does
not diminish prior uses.
a. Priority makes an appearance
b. When flows are above normal, each riparian can take as much as he
wants as long as there is no injury.
c. Dependable flow: amount of water that is normally used
i. There will always be this much water in the stream.

Water Law - Page 44 of 66

ii. Priority might limit the demand to the dependable supply, new
uses can be prohibited once dependable supply is exhausted.
iii. Notes
1. Liable if harm outweighs utility
a. Nuisance principle
b. Restatement one
2. List of factors for reasonable use
a. Restatement 2
3. If we value higher use have to pay for lower use if its perfectly legal.
III. Nonriparian Uses: Prescription, Grant, and Municipal Supply
a. Prescription
i. Pabst v. Finmand
1. H.H. is a prior appropriator
2. N.H. is a riparian
3. Pabst is a riparian.
4. Can N.H. take Pabsts water by prescription?
a. Prescription requires injury to downstream user
b. No hostility (no harm)
c. No notice (werent using enough to harm)
d. Correlative rights: until there is injury there is no enjoinable action by a
riparian against a riparian (obligation to other riparians for reasonable
use)
e. Downstream riparian may get an injunction against upstream riparian
even if there is no present harm. BUT the statute in this case was
changed to require harm.
5. Can H.H. take Pabsts water by prescription?
a. Prior appropriator does not have an obligation to others.
b. Non riparian use is unreasonable per se
c. Its hostile by nature
d. Open and notorious: constructive notice; due process-ish: want to give
notice
i. Actual notice/knowledge: higher standard for prescription, harder
to know when someone is using water hostile
6. Artificial shortage due to over use: look at statutes for preference,
a. Priority (later in time, usually out of luck)
b. Type of use (domestic preferred)
b. Grant
i. Duckworth v. Watsonville Water & Light Co.
1. This is a companion case to Thompson v. Enz (cant sever water rights in riparian
lands)
2. McKinley sold property to Duckworth and severed water right to Watsonville
3. Can Duckworth claim water rights?
4. Can convey right of access and can have almost all rights as if riparian rights had
been conveyed
5. Cannot deed a riparian right as they are not alienable, but you can sell a quantity
of water.
ii. Pyle v. Gilbert
1. P, owner of a water mill, is selling his water to a nonriparian
Water Law - Page 45 of 66

2. Can D sell riparian right to divert water


3. Riparian Water rights in Georgia can be transferred without grant of land
a. Using on riparian lands alone is no longer the rule.
b. You can grant and lease the water.
c. This is the restatement and the majority approach
i. Reasonable use of water can go to a nonriparian or land outside
the watershed
1. Key is grant is not UNREASONABLE!
2. Nonriparian is held to the same standard (reasonable use)
as the riparian
IV. State Regulation
a. Muench v. Public Service Commission
i. P wanted to build hydropower dam on the river; have to get a permit.
ii. Statute requires public interest be recognized
1. Aesthetics must be considered
iii. Public rights are any use the public has a right to put the water to; only attach to
navigable water ways.
1. Navigable=state owns
2. Can you float logs down the water body? Can it carry anything down stream?
Leaf with an ant on it?
a. If so, its a public water way
iv. Under public rights, anyone can bring suit.
b. Village of Tequesta v. Jupiter Inlet Corp.
i. Tequesta has an existing permit, using max safe yield of aquifer. Jupiter is a condo
builder, saying the property is riparian to groundwater, seeking reverse condemnation
to get the value of the water. FL law converted to appropriation type regime
ii. Prior riparians had a grace period in which they could convert their right, otherwise it
extinguished.
iii. Model water code changed state law and gave former riparians opportunity to permit
their water or else their use would be converted.
1. Use was converted in this case.
2. State has the power to change water laws, police power
a. Must give reasonable chance, like notice.
3. This is not a taking because they never had a right.
4. Didnt use the water, didnt get a permit.
5. Regulated riparianism.
V. Abolition and Combination
a. Coffin v. Left Hand Ditch Co.
i. RULE: the right to water is established by the priority of appropriation of water and
not by riparian proprietorship
1. So long as there is beneficial use, they can take water as far as they want;
water right is not dependent on geographical attachment
2. Also, the right to use water under the prior appropriation doctrine does not
limit the user to using the water in the watershed of its source
ii. Facts: LHD owned land which was irrigated by LH creek through a series of ditches,
which placed water in the LH creek by diverting water from the St. Vrain creek to the
James creek
1. Insufficient water to supply ditch of LHD and irrigate lands of Coffin
Water Law - Page 46 of 66

2. Riparian user: Coffin ripped out dam because the dam diverted water and left
him without enough water to irrigate land
a. Argued that CO recognized riparian rights until 1876 and appellees use
(which is non-riparian has a lower priority)
3. LHD contends that the common law principle of riparian proprietorship applied
in CO and not the concept of appropriation. LHD sued Coffin for trespass and for
an injunction to prevent further trespasses in the future
iii. Issue: what is the proper legal rule to decide this case?
1. Whether you have right to take water from one watershed to another?
2. Is a geographic connection required?
iv. Holding: right to water by priority of appropriation has always been the rule in CO bc of
arid climate and fact that rule of riparian proprietorship would not work well where
rainfall is scarce.
1. It would be inequitable to deprive one of the benefits of the rule simply because
he has, by expending a large amount of time and money, carried the water from
one stream over an intervening watershed and cultivated land in the valley of
another watershed.
2. The first appropriator of water from a natural stream for a beneficial purpose
has a prior right to the extent of the appropriation. Ds right to water is
established by his prior appropriation of water from St. Vrain creek.
v. Usufructuary right: right to use not right to possess.
vi. Wholesale rejection of riparianism in Colorado.
vii. Discussion: doctrine of prior appropriation is recognized in western states and in MS,
which generally allows an earlier user of water the right to the water before allowing
later users a right to the water. Whereas, doctrine of riparian rights, is generally
recognized elsewhere and allows equal rights between riparian users.
1. What are some arguments for not taking the water too far out of the watershed
a. More efficient to take it from the nearest one, there is a lot of loss when
you are transporting water long distances (evaporation)
b. Export: where the water is coming from
c. Importer: Left Hand Ditch imports from one watershed to where they are
viii. There are some places that impose restrictions: out of basin diversions: encourage using
it in that area; give priority to where you are trying to take it from
1. County of origin restrictions; requires compensatory sheds
ix. However, can transfer water if using it beneficially
1. May be subject to regulations and statutory law.
b. Lux v. Haggin
i. Land was purchased in 1872 from the State of California who acquired them from the
federal government in 1850 under the terms of the Federal Swamp Land Act.
ii. P (Lux) is upstream to Ds hundreds of thousands of land acres. P is cattle rancher
downstream to diversion. D is upstream water diverter on Federal public lands.
iii. P sued D to enjoin the proposed diversion on the ground that it would interfere with
their riparian rights to the overflow.
iv. Issue: 1 and 2. Between an appropriation and a riparian diversion, who prevails? 3. Is
appropriator from private lands superior to riparian rights?
1. R1 - A grant of public land has CL water rights
2. R2 - Riparian prevails over appropriator EXCEPT where appropriator after Act
and before riparians patent. - I.e. they keep their riparian rights
Water Law - Page 47 of 66

3. R3 - Appropriation from private lands is not superior to riparian rights


v. Reasoning:
1. Grant of Public Land Law comes from federal mining law (1866)
a. In Riparian State: you get reasonable use, etc.
b. In Prior App: you get nothing simply by getting a grant
2. Protect peoples expectations who had water rights prior to mining, already
made a determination in Osgood Case
a. WL is about the chase more than the catch
b. Court says Luxs expectation should have been protected
3. The key was that Haggin was on public lands
vi. Notes:
1. F. Patents and State law, 320
a. Unnappropriated water is left to the public domain
2. Texas Policy
a. Made a cutoff date for riparian rights
b. Limit riparian water rights below the ordinary low-water flows
c. Generally, the state thus owns that water not in excess
d. Spanish and Mexican grants of land along the lower Rio Grande have no
riparian rights.
3. High-Water Mark: the Vegetation Rule
a. Seal level is the high water mark
b. Generally, high water mark is where the vegetation starts
c. Texas: confined riparian rights to low water flows with the result that
large quantities of the annual flow of variable streams were reserved for
use by appropriators
i. Riparian rights could attach only to the waters below the ling of
the highest ordinary flow
c. Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Board
i. Facts: Birds Mills Spring flows into stream and into Blue River. Ada is using some of the
water from the spring, about half to all of the water. Spring completely supported by
Ar/S Aquifer. P used the water from the stream when available, but P had no rights in
the stream. Riparian law existed until laws were passed. New laws limited riparian rights
to domestic uses.
ii. Issue: When legislature limited RR to domestic uses, was this an uncompensated taking
of private property? I.e. did the legislation take away the rights?
1. Riparian rights are part of the bundle of sticks
a. Cannot be taken for public use without compensation
2. Any valuable interest that can be enjoyed, can be property
a. I.e. use the water to cool the cattle
3. Riparians stand on equal footing with appropriator
a. Using it in different context
4. Heart of riparian rights is to assert the right at any time as long as reasonable (no
harm)
a. Riparian can expand right, but only as an appropriator
b. Appropriator cannot expand unless new permit
5. Relative Reasonableness Rule: must balance appropriations on relative
reasonableness by agency/court
a. A new appropriator OR riparian expander
Water Law - Page 48 of 66

iii. Reasoning: OK law failed to protect riparian rights, change of use in this case, and failed
to provide compensation. Riparians can continue use so long as reasonable.
1. Agency/Court must determine reasonableness of a riparian use and
new/competing appropriation
a. Remember, riparians have value in that land
2. Riparian now stands on equal footing with the appropriators
iv. Notes:
1. OK adopted MWC in 1972
2. Other Jurisdictions may use zoning, it is for legislature
Groundwater
I. Doctrines
a. Absolute Ownership (English rule)
i. Elements:
1. No legal protection for any user whomever can capture the water owns it.
2. Exception no malicious pumping one cannot pump groundwater just to
deprive a neighbor of groundwater.
ii. TX only TX is the only state w/ this system, and it is subject to change. See Sipriano v.
Great Spring Waters of America (TX S. Ct. 1999)(affirming absolute ownership rule for
groundwater in TX).
b. Reasonable Use (American rule)
i. Elements:
1. Reasonable use water must be put to reasonable use
2. Overlying tract on the overlying tract
ii. Conflict between overlying users? if both uses are reasonable and are being applied to
the overlying tract, the user with the biggest pump wins
iii. What is overlying use? see Martin v. City of Linden (S. Ct. AL 1995), where citys
application of groundwater was held to violate reasonable use rule b/c use of
groundwater as municipal supply was not an overlying use, and such a use was going to
hurt a user who was applying groundwater to an overlying use.
c. Correlative Rights (CA system)
i. Elements:
1. Reasonable & beneficial use (subject to CA Const.) and equitable towards one
another (a sharing regime)
2. Equitable sharing among groundwater users
3. Off-tract use is subordinate to overlying tract use off-tract uses are only legally
protected in the event of that surplus water is available (recharge >
withdrawals).
ii. CA correlative rights doctrine
1. Katz v. Walkinshaw (CA S. Ct. 1903)(overturned absolute ownership in CA b/c ct.
thought that absolute ownership system would leave groundwater users in
constant threat of losing their water)
2. Statement of the CA doctrine see Tehachapi-Cummings County Water Dist. v.
Armstrong (Cal. App. 1975):
a. Each user is limited to a proportionate fair share of the total amt.
available based upon reasonable need.
b. Reasonable need is NOT based on past need, but on currently reasonable
and beneficial need for water.
Water Law - Page 49 of 66

3. CA Water Code 2000-2001: any groundwater user can initiate an adjudication


in ct. The court can then refer the adjudication to the SWRCB to act as a special
master.
a. 2100 the SWRCB can restrict groundwater pumping
4. 2500 statutory adjudications exclude groundwater *Legislature didnt give
SWRCB the power to adjudicate groundwater basins on its own authority]
5. No Ca Statewide Groundwater Regulation Exists- Modern trend recognizes local
authority to a larger extend. (Baldwin v. Tehama)
a. Baldwin v. Tehama 1994-Calif has no statewide groundwater law
requiring counties to regulate; in this case the court of appeal on
affirmed the counties right to regulate, did not reach transfer prohibition.
d. Reasonable Use, Restatement 2d Torts
i. Elements:
1. Reasonable use
a. Comment e a factor in determining reasonableness of use IS NOT place
of use, but whether withdrawal of water is unprecedented for purposes
not common to the locality.
b. Application of reasonable use, RS 2nd Torts probably wouldnt have
changed the outcome in Martin v. Linden.
2. Equitable sharing among groundwater users users not allowed to unreasonably
lower water table & injure other users.
3. No distinction between use on overlying or off-tract land
e. Prior Appropriation (CO system)
i. Elements:
1. First in time, first in right ;Specified point of diversion; Withdrawal is quantified
in amount
2. Rights can be lost due to non-use; Rights can be transferred as long as they cause
no harm to other users; Users must sink wells to a reasonable depth
3. May be integrated w/ surface water system ex. CO has an integrated
groundwater & surface water system
ii. Tributary groundwater CO courts say that where groundwater is a tributary to a
surface stream, groundwater taking > 100 yrs. to reach the surface is NOT tributary
groundwater.
f. State v. Michels Pipeline Construction, Inc.
i. Facts: digging pipe and drain groundwater to do work. Draining causes tons of damages
to city. Defendant has right to do this.
ii. Issue: could city prohibit Defendant from doing this with its own groundwater?
iii. Rule: Adopted Restatement, owner of land can be liable for beneficial use of
groundwater on its own land where withdrawal causes unreasonable harm.
1. By lowering water table OR reducing artesian pressure
g. State Ex Rel. Bliss v. Dority
i. Rule: statute can make groundwater a public resource and deprive overlying
landowners - No absolute rights, they are usufructory, must be a BU
1. Water belongs to public
II. Problems
a. Physical differences between groundwater and surface water
b. Managing Storage: Mining, Safe Yield, and Related Concepts
i. Fundingsland v. Colorado Ground Water Commn
Water Law - Page 50 of 66

1. P filed an application for permit to drill a well. Denied because there was an over
appropriation in the area. P appealed; trial court agreed.
2. The commission is empowered to deny an application if it finds that the
proposed appropriation will unreasonably impair existing water rights from the
same source or will create unreasonable waste.
3. Groundwater is subject to the doctrine of prior appropriation
a. The underground water is not subject to the same ready replenishment
enjoyed by surface streams and tributary groundwater. It is possible for
water to be withdrawn from the aquifer in a rate in excess of the annual
recharge creating what is called a mining condition.
ii. Doherty v. Oregon Water Resources Director
1. Agricultural irrigators challenge an order which can lead to controls on volume of
water pumped from area wells.
2. The sustained yield of a groundwater basin is the amount of water that can be
withdrawn from it annually without exceeding the longterm mean annual water
supply to the reservoir; any draft in excess of the sustained yield of the basalt
ground water reservoir is overdraft.
3. State can regulate to preserve groundwater by restricting existing permittee to
public uses (health, safety, welfare)
iii. City of Pasadena v. City of Alhambra
1. Overlying user: own surface above ground water
2. California and Michigan: strict priority
3. Overlying users win first, then priority
4. Without shortage, there cannot be prescription
5. Statutory requirements
a. Use
b. Reduced water supply (notice)
i. Water table is lowered
ii. Well pumping air or silt filled water
6. Some appropriations are prescriptive-right to amount using
a. However, shortage!
b. Using your water harms someone else.
7. Mutual prescription
a. Such a shortage that everyones use is continuously harming others.
b. Cant identify who is using their water
c. Proportionate reduction. Dont know who to take away from
d. Everyone is standing on equal footing
8. Cant adversely possess citys water
9. Junior could go pump as fast as possible so as to create shortage so that they can
create mutual prescription and be on equal footing as everyone else.
10. Cannot lose overlying right because you dont use it.
11. Correlative rights: shortage and only users are overlying land owners.
iv. Town of Chino Valley v. City of Prescott
1. Facts: Prescott owns some land in Chino valley and set up a well to transport
groundwater to Prescott. Originally, Prescott was outside of the groundwater
management area and should not have been transferring groundwater out of
the management area. However, under a new act both communities are in the
Water Law - Page 51 of 66

same management area and transportation is allowed. Chino argues that the
new law takes property w/o due process and just compensation.
2. Can Prescott pump water out of land they own and transfer it 17 miles?
3. No property right until capture/ only right to capture
4. Usufructory
a. Reasonable use
b. No taking because no property right
5. Act
a. Grandfathers in existing right
b. Notices a link between ground water and surface water.
v. 1978 Texas: if you are going to pump water to create land subsidence, groundwater
management district; now: non negligently/recklessly
c. Protection of Means of Diversion
i. Current Creek Irrigation v. Andrews
1. Discourage technology
a. Encourage someone to use lower technology may not be efficient
2. There is enough water
a. Impairs development
3. Rule: if senior appropriators pressure is damages, junior must pay or fix.
4. If water table is too high, evaporation/waste
5. Dissent
a. Should require someone to buy a pump
i. May be expensive
6. Reasonable is not in here
a. Artesian pressure is not necessarily unreasonably.
ii. Notes
1. Reasonable means may now be required
2. Consider economic reach of user when determining reasonable means.
a. Class warfare
iii. EAA v. Day
1. Statutory cap: almost double at time of case
2. Facially a taking so its unconstitutional
a. Premature takings claim in this case
b. Valid exercise of police power so not unconstitutional
3. Rule of capture in Texas
a. East case: rule of liability
b. Court has never said its your property before you pump it
c. Everyone knows once pumped, its yours
4. Could have correlative rights
a. Worried about innovation development
b. Slow march of progress
5. Malice, waste are limitations to rule of capture
a. Legislature can also limit rule of capture.
6. Why do they use oil and gas
a. Underground and in reservoir
b. Similar characteristics
7. Is water a renewable resource?
a. Every basin is different
Water Law - Page 52 of 66

b. Permeability, porosity
c. Oil and gas: no artesian pressure
d. Hard to make blanket statement like yes or no
8. Authority
a. Inchoate right
b. Given variable amount of groundwater
c. Cant say how much is there and cant say how much you own
d. How do we value or know how to define
9. Takings
a. Loretto
i. Physical
ii. Per se
b. Lucas
i. Economic
ii. Per se
c. Penn Control
i. Ad hoc
ii. Economic impact
iii. Reasonable economic expectation
iv. Nature of statute
10. Here
a. No physical
b. Not economic
i. Significant but not absolute
c. Ad hoc (balancing test)
i. Economic (day wins)
ii. Investment backed expectations (could say he knew it would be
regulated)
iii. Nature
1. Frustrating
d. Remanded to determine all of this.
d. Physically Connected Groundwater and Surface Water
i. Often the system to manage groundwater & surface water are different, which leads to
problems b/c they are hydrogeologically connected. Often groundwater is tributary to
surface water (gaining stream), or surface water adds to groundwater (losing stream).
ii. Postema v. Pollution Control Hearings Board
1. What is the impact of ground water withdrawals on surface waters having
minimum flow requirements set by rule which are unmet a substantial part of
the year, and on surface waters closed to further appropriation?
2. Postema: there must be a significant measureable effect on surface waters
before a groundwater application may be denied even though hydraulic
continuity between the ground and surface waters is established.
3. Court rejected this view.
a. Statutes do not authorize a de minimis impairment of an existing right;
plainly permits no impairment of an existing right
b. Existing rights may or may not be impaired where there is hydraulic
continuity depending upon the nature of the appropriation, the source
Water Law - Page 53 of 66

aquifer, and whether it is upstream or downstream from or higher or


lower than the surface water flow or level, and all other pertinent facts.
c. The number of days minimum flows are unmet is a relevant
consideration. Where minimum flows would be impaired, the application
must be denied.
4. Hydraulic continuity of an aquifer with a stream having unmet minimum flows is
not, in and of itself, a basis for denial of a groundwater application.
a. Where there is hydraulic continuity and withdrawal of groundwater
would impair existing surface water rights, including minimum flow
rights, then denial is required.
iii. Templeton v. Pecos Valley Artesian Conservancy District
1. Plaintiffs wanted to irrigate certain land out of the Rio Felix. The Rio Felix has
decreased in recent years and Plaintiffs applied for permits to drill wells to
supplement this water. Application was denied. District Court reversed.
2. Headwaters of the Rio Felix sink and become a part of the Valley Fill except for
the times when the stream is in flood stage.
3. Plaintiffs were entitled to the waters of the Valley fill that flowed into the Rio
Felix at the time of their appropriation. There is nothing in the law that would
prevent them from following this water through an application for a change of
point of diversion provided that it does not impair any other existing rights.
4. Because plaintiffs had a right to this water, they are merely requesting a change
to follow the source of their original appropriation.
5. Templeton Doctrine: allows an appropriator to follow the stream water to its
source and take the underground water to fill his prior stream right.
iv. Alamosa-La Jara Water Users Protection Assn v. Gould
1. Must stop pumping unless no harm to senior or increases confined aquifer which
decreases surface water
2. The underground water rules provide for phasing out of underground water
diversions unless the water user submits proof to the division engineer that the
users well is operating under a decreed plan of augmentation or has a decree as
an alternate point of diversion, or that the underground water appropriation can
occur without impairing the right of a senior appropriator
3. Where streams are over-appropriated and under ground water diversions from
an aquifer have been found to significantly affect stream flow, it may be
presumed that each underground diversion materially injures senior
appropriators.
a. The state engineer will not be required to repeat for every well curtailed
the painstaking analysis which led to the aquifer-wide determination of
material injury
e. Conjunctive Management of Groundwater and Surface Water
i. Board of County Commissioners v. Park County Sportsmens Ranch, LLP
1. Reject ad coelom
2. Water is a public resource
3. If wastewater injection well (injected in lower salt water aquifer) begins seeping
into fresh water aquifer, is that trespass?
a. Under this case, no
4. Damage shouldnt matter but it does
5. Nuisance: substantial interference with use and enjoyment of property
Water Law - Page 54 of 66

6. In Texas, you own water under your land


a. Correlative rights doesnt apply to ground water in Texas.
b. We own groundwater in place so we own salt water aquifer in place
c. No public servitude
d. In Texas, ad coelom may apply
e. Subsurface trespass may have a better change in Texas.
f. Injection well owner should get easement, license for seepage
Interstate Allocation
I. Equitable Apportionment
a. Kansas v. Colorado
i. Colorado using too much water
1. Prior appropriation should win
a. Should be federal common law
2. We are using water elsewhere (diversion)
ii. Kansas is not currently injured but predicting future losses
1. Riparian should control
2. Natural flow theory of riparianism
3. Using water on riparian lands. Any use of water will injure riparian user
4. Alternative, if prior appropriation wins, Kansas has senior priority.
iii. Equal footing doctrine: states are equal
iv. Dispute between states, SCOTUS is court of original jurisdiction
v. Kansas hasnt shown any injury
vi. Neither riparian or prior app wins
vii. Equitable apportionment wins
1. Colorado has a lot of benefit in water. No real inequality to Kansas at this time
2. Absent showing of injury, dismiss case without prejudice
viii. When we see injury, we will divide water rights
ix. Agreement and accommodation should be preferred over adjudication
1. Want states to mediate
2. More likely to comply by agreement
3. Water is ever changing
4. Statutes can be revised
a. Court decree takes too long to modify
b. Notes
i. Laramie
1. Look at dependable flow
2. Colorado gets a certain amount and Wyoming gets the rest
3. Remainder in times of excess is split between states
4. Drought: Colorado gets their amount and Wyoming wouldnt get any (even
though they are mostly senior)
c. Nebraska v. Wyoming
i. Is there injury? Yes.
ii. No temporal priority
iii. Equitable apportionment
1. Based in prior app
2. Colorado: so far away that it wouldnt matter, theres a chance it may never
reach injured party anyways
Water Law - Page 55 of 66

3. Carriage loss: Colorado may continue to lose. Not handcuffed by strict temporal
priority.
iv. Economic ramifications have to be considered.
v. Physical and climatic considerations
vi. Wyoming wants mass allocation
1. Solution is problematic
vii. Factors
1. Physical and climatic conditions
2. Consumptive use of water in the several sections of the river
3. The character and rate of return flows
4. The extent of established uses
5. The availability of storage water
6. The practical effect of wasteful uses on downstream areas
7. Damage to upstream areas as compared to the benefits to downstream areas if a
limitation is imposed on the former.
d. Colorado v. New Mexico
i. New Mexico
1. Inefficient uses in NM
2. Balance relative harms and benefits
3. Use strict priority
a. Existing economies should be given deference
b. Colorado doesnt have an existing economy
ii. Reasonably acquired and applied
1. Acquired efficiently
2. Look at proposed diversion
3. Clear and convincing evidence
a. Higher than preponderance of the evidence
4. New users can displace old users
5. NM has burden to show injury. Colorado then has burden to rebut
iii. Concurring
1. Unfairly charged with upgrading to better systems of water
e. Colorado v. New Mexico
i. Same rationale and result as last time
ii. Specifically Vermejo conservancy district
1. Not efficient
2. lots of problems
3. Losing water to evaporation
4. Could improve but dont
iii. Colorado doesnt provide clear and convincing evidence
1. Instead Colorado should have had expert testify as to what NM could do to fix it
iv. How cost effective would it be to solve problems?
1. Financially and physically feasible
v. Havent said heres how you could be using water more efficiently
1. Detailed and fact specific
vi. Colorado: duty to minimize impact of diversion
1. Its our stream and we should get it
a. NO! it doesnt matter where it originates
vii. Must have reasonable and beneficial use
Water Law - Page 56 of 66

1. Colorado hasnt been using it at all.


2. Not beneficial use
viii. NM has shown that this will cause harm
1. Burden shifts to Colorado
2. Colorado doesnt have to prove benefits but implement some type of long range
planning and analysis of the diversion.
II.
Interstate Compacts
a. Hinderlider v. La Plata River & Cherry Creek Ditch Co.
i. Compact and users prior to compact
ii. Compact
1. During low flow periods each state gets 10 days of flow at a time and they
alternate
iii. What is the impact of a compact on an individual right?
1. Right of plaintiff is indefeasible property right so far as concerns Colorado
a. Cannot confer rights in excess of Colorados share
2. What Colorado owns varies pursuant to compact and therefore permits must
vary
3. Right to use this amount of water unless compact says otherwise
a. Compact says what Colorado owns and what Colorado may permit to
citizens
4. Compact is on equal footing as equitable apportionment
a. Treated as if set out by SCOTUS
b. Same effect
b. Anytime you negotiate water use, mention what happens in times of shortage
c. Notes
i. Montana v. Wyoming
1. Conserved water must be used from same acreage
2. Dissent:
a. Drainage basin depletion phrase used in compact
b. Beneficial use does not deplete drainage basin
III. Congressional Apportionment
a. Arizona v. California
i. Law of the river: laws that affect water use
1. Compacts, decrees, statutes
ii. Boulder Canyon Act
1. Takes affect if 4 of 7 states agree
iii. Jila River: Arizona tributary
1. If we include in appropriation, Arizona has to share which means Arizona would
get less
iv. Special master: pro rata, only apportion main stream
v. SCOTUS: Jila River not included (windfall for Arizona)
1. Pro rata: no required but makes sense
2. Language of compact controls
3. Powers identified by statute
4. Case by case basis
vi. All equal
1. Measures in statute
2. Parties can negotiate
Water Law - Page 57 of 66

3. Congress can apportion


a. Identifies all measures and methods for allocating water in shortage
4. Court can equitably apportion water
b. Notes
i. Central Arizona Project
1. More development would allow California to have more water
2. California agrees to reduce surplus
3. Arizona now less reliant on Colorado river
4. Read notes 5-6
Public Rights and Environmental Protection
I. Public Rights
a. Navigation
i. State Ex rel. Meek v. Hays
1. Hays put up fence to stop people in canoes from trespassing on his land.
2. Who owns title to river and bed underneath river?
3. Navigability
a. If creek is navigable stream, Hays ownership only extends to the banks.
b. If the stream is nonnavigable, Hays owns the bed of the stream by the
same title that they own the adjoining land.
c. If stream is nonnavigable, Hays may put up a fence across the stream to
prevent trespassers upon their property because they own land on both
sides of the stream.
d. Test
i. Whether the bodies of water were used, or were susceptible of
being used, as a matter of fact, as highways for comers;
ii. Such use for commerce was possible under the natural conditions
of the body of water;
iii. Commerce was or could have been conducted in the customary
modes of trade or travel on water; AND
iv. All of these conditions were satisfied at the time of statehood.
4. Since you have to walk through parts of the stream and it was never used for
commerce, it is not navigable.
5. State: but people rennet canoes and thats commerce.
a. Temporal requirement. Have to look to date of statehood.
ii. Brannon v. Boldt
1. Property development had waterfront and back lots.
2. Back lot owners wanted to be on land to watch fireworks, etc.
3. Waterfront owners said only use easement to get access to water.
4. The easement language said: ingress, egress, and utilities
5. Scope of easements?
a. Ingress and egress
6. Servient estate: cant linger on land. Have to access water within reasonable
times.
7. Were riparian rights conveyed with easement?
a. Public: more narrow;
b. Private: more expansive
c. Back lots: could build a dock. Use easement to access water but cant
bring lawnchairs.
Water Law - Page 58 of 66

iii. Man Made Lake


1. Even if there is commerce now, there wasnt at time of statehood.
b. Public Trust Doctrine
i. Illinois Central Railroad v. Illinois
1. Conveys title to submerged lands to Illinois Central RR as long as they dont
impede navigation
2. Can State revoke grant? Can RR Company hold lands and control waters by
grant, against any exercise of power over them by the state?
3. Land: main commerce hub of region
4. Cannot abdicate trust duties
a. Must benefit public
b. Allow for significant access
5. Land is important for economic reasons
6. Legislature can revoke grant
7. Even when granting land, states maintain trust duties pursuant to public trust
doctrine
8. Beaches subject to public trust
a. Submerged lands, harbor
b. Scarce resources
i. Cant just make more of them
c. Need government oversight to preserve the resource
ii. Issue of state law
1. All states have same doctrine
2. Same principles
3. Contours vary from state to state.
iii. National Audubon Society v. Superior Court
1. Mono Lake
a. Shrimp fishing (triggers public trust)
b. 4 of 5 tributaries being diverted for LA
c. Surface area diminished
d. Originally had recreational and ecological benefits
2. Beneficial Use v. Public Trust
a. Appropriative rights doctrine
i. Use right conferred to people; water owned by the state
b. Public Trust
i. Obligation to preserve resources
3. Water Board
a. Knew appropriation would be detrimental to Mono Lake
b. Statutory preference for domestic use
c. Therefore the court is without jurisdiction to deny permit
d. No statutory reference to environment, ecology
4. Public Trust
a. Flexible
b. Evolves as we determine what is important
c. Hotly debated topic in many states
d. Broad
i. This case is about the scope and importance of public trust
e. Narrow
Water Law - Page 59 of 66

i. This case deals with non navigable water courses tributay to


navigable water
5. Not a Taking
a. LA has not lost property
b. Never had legal title
c. Beneficial title is subject to trustee who has legal title
i. In this case, the trustee is the state
d. Similar to the example that you cant build a pig farm in downtown
Manhattan
i. If you start and government tells you to stop, its not a taking
because its a nuisance
e. Trustee duties
i. Supervisory control over Res
ii. No right in beneficiary to use water harmful to trust.
6. Notes:
a. Idaho
i. Titles to beds underlying navigable waters is only thing state can
regulate
ii. Wouldve come up differently
II. Environmental Protection
a. Water Quality Regulation
i. Friends of the Everglades v. South Florida Water Management
1. Pollution in the water and there are pumps moving water from one body to
another
2. Is this an addition under the CWA?
a. Water district: unitary waters theory
i. Dictionary definition
ii. Not addition when moved between navigable waters
iii. It is not an addition to navigable waters to move existing
pollutants from one navigable water to another.
iv. An addition occurs only when pollutants first enter navigable
waters from a point source, not when they are moved between
navigable waters.
b. Other:
i. Of course its an addition
ii. The pump is a point source
3. Chevron Deference
a. Is statute ambiguous?
i. Yes
ii. Look at case law and precedent
iii. Statutory construction
iv. Purpose and context of statute
1. Broad
b. Give deference to agency
i. EPA-unitary waters theory
ii. Arbitrary and capricious standard
iii. Reasonable basis
4. Not an addition under the unitary water theory
Water Law - Page 60 of 66

ii. City of Thornton v. Bijou Irrigation Co.


1. Kodak still getting same amount of water
2. Diversion will affect the average low flow rates on which Kodaks effluent limits
are bases and result in stricter unionized limits on Kodaks discharged water.
3. Can Kodak demand an instream amount?
a. No. Private party
b. Legislature expressed a clear intent to prohibit private parties from
adjudicating instream flow rights
c. The judiciary is without authority to decree an instream flow right to a
private entity
b. Inverse Condemnation
i. Tulare Lake Basin Water Storage District v. United States
1. Takings claim
2. Contract gives amount of water to parties
3. EPA came in with reasonable prudent alternatives (cut in water use) in order to
preserve the winter-run Chinook salmon.
4. Takings
a. Physical
i. Occurs when the governments action amounts to a physical
occupation or invasion of the property, including the funcitional
equivalent of a practical ouster of the owners possession
ii. No matter how minute the intrusion, and no matter how weighty
the public purpose behind it, we have required compensation for
physical takings
b. Regulatory
i. Governments regulation restricts the use to which an owner may
put his property.
ii. Penn Central Balancing Test
1. Character of the government action,
2. Economic impact of that action
3. Reasonableness of the property owners investment back
expectations
iii. Regulations that deprive property of its entire economically
beneficial or productive use are commonly identified as
categorical takings and require no such balancing.
5. Here, the court held that this was a physical taking
a. A mere restriction on use completely eviscerates the right itself since
plaintiffs sole entitlement is to the use of the water
b. Unlike other property rights where restrictions may limit some but not all
of the incidents of ownership, the denial of a right to the use of water
accomplishes a complete extinction of all value.
6. Do Plaintiffs own the property for which they seek to be compensated?
a. Contract right
b. Public trust is a state right
i. The state should have already taken the public trust into account
when giving permits.
c. Therefore, it is their property.
Water Law - Page 61 of 66

Federal Water Law


I. Constitutional Powers
a. Rapanos v. United States
i. Regulations interpret navigable waters as all interstate waters including interstate
wetlands; all other waters such as intrastate lakes, rivers, streams, mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the
use, degradation or destruction of which could affect interstate commerce.
1. Navigable waters=the waters of the United States
ii. Whether four Michigan wetlands, which lie near ditches or man-made drains that
eventually empty into traditional navigable waters, constitute waters of the United
States within meaning of the Act.
iii. Meaning of navigable waters in the Act is broader than the traditional understanding of
that term.
1. However, the qualifier navigable is not devoid of significance.
iv. The use of the definite article and the plural number shows that the section does not
refer to water in general
1. The waters refers more narrowly to water as found in streams and bodies
forming geographical features such as oceans, rivers, and lakes.
2. Includes only relatively permanent, standing or flowing bodies of water.
v. The Corps interpretation would result in a significant impingement of the states
traditional and primary power over land and water use.
1. Regulation of land use is a quintessential state and local power
2. Require a clear and manifest statement from Congress to authorize such an
intrusion into traditional state authority.
vi. Stretches the outer limits of Congresss commerce power
1. Expect a clearer statement to authorize a theory that presses the envelope of
constitutional validity
vii. The waters of the United States includes only those relatively permanent, standing or
continuously flowing bodies of water forming geographic features that are described in
ordinary parlance as streams, oceans, rivers, and lakes.
1. Does not include channels through which water flows intermittently or that
periodically provide drainage for rainfall.
viii. What about wetlands?
1. A mere hydrological connection is not sufficient to qualify a wetland as covered
by the CWA; it must have a continuous surface connection with a water of the
United States that makes it difficult to determine where the water ends and the
wetland begins.
ix. Concurring
1. Wetlands need not have a continuous surface connection to a continuously
flowing body of water to be covered under the CWA, but mere adjacency to a
tributary of a navigable water is not sufficient.
2. Wetlands that are not adjacent to a traditionally navigable water must have a
"significant nexus" with a one.
a. This requirement is satisfied if the wetland has a significant effect on the
water quality of navigable waters.
x. Dissent

Water Law - Page 62 of 66

1. The inclusion of all wetlands adjacent to tributaries of navigable waters was


most consistent with the CWA's purpose of eliminating pollution in the nation's
waters.
2. Judgment should be reinstated if either of these tests are met.
xi. Notes
1. Daniel Ball Test
a. Navigable in fact when they are used, or are susceptible of being used, in
their ordinary condition, as highways for commerce, over which trade
and travel are or may be conducted in the customary modes of trade and
travel on water.
b. If they form in their ordinary condition by themselves or by untied with
other waters, a continued highway over which commerce is or may be
carried on with other States or foreign countries in the customary modes
in which such commerce is conducted by water
c. Expansion
i. Presently is used or susceptible of being used as a highway for
commerce
ii. In the past was so used or susceptible of being used even though
it no longer is.
iii. In the future, could be so used
b. United States v. Rands
i. Rands owned land in Oregon. Leased land to state with an option to purchase.
1. State was contemplating using the land as a port and industrial park.
2. Land was taken by US in connection with the John Day Lock and Dam Project
3. Conveyed land to Oregon at a price considerably less than the option price.
ii. Trial judge: compensable value of the land taken was limited to its value for sand,
gravel, and agricultural purposes and that its special value as a port site could not be
considered.
1. Court of Appeals reversed, concluding that port site value should be
compensable under the Fifth Amendment.
iii. The Commerce Clause confers a unique position upon the Government in connection
with navigable waters.
1. For this purpose they are the public property of the nation, and subject to all the
requisite legislation by Congress. This power to regulate navigation confers upon
the United States a dominant servitude, which extends to the entire stream and
the stream bed below ordinary high-water mark.
2. The proper exercise of this power is not an invasion of any private property
rights in the stream or the lands underlying it, for the damage sustained does not
result from taking property from riparian owners within the meaning of the Fifth
Amendment but from the lawful exercise of a power to which the interests of
riparian owners have always been subject.
iv. Fast lands are the lands located above the high water mark.
1. Just as the navigational privilege permits the Government to reduce the value of
riparian lands by denying the riparian owner access to the stream without
compensation for his loss, . . . it also permits the Government to disregard the
value arising from this same fact of riparian location in compensating the owner
when fast lands are appropriated
Water Law - Page 63 of 66

2. No obligation to pay for any special value which the fast lands had for power
generating purposes
v. If the owner of the fast lands can demand port value as part of his compensation, he
gets the value of a right that the government, in the exercise of its dominant servitude,
can grant or withhold as it chooses.
1. To require the United States to pay for this value would be to create private
claims in the public domain.
c. Kaiser Aetna v. United States
i. Natives installed sluice gates to create a pond and used the pond to raise fish.
1. Water from the bay and ocean entered during high tide and reversed flow
toward the ocean during low tide
2. Kaiser Aetna deepened the pond and cut a channel connecting it to the bay and
ocean
a. Community was developed and the marina was used by residents
ii. Permit is required to excavate, fill, or otherwise alter the channel of any navigable
waters of the United States.
1. Kaiser Aetna didnt need a permit to originally do this but the Corps asserted
that the pond had become navigable and required a permit for any future
excavation, filling, or construction.
iii. Government contends that once the petitioners dredged and improved the pond, the
pond became navigable and the public acquired a right to use the pond as a continuous
highway for navigation and the petitioners cannot reserve the waterway for themselves.
iv. Is it navigable?
1. No
2. Waters that are subject to the ebb and flow of the tides are navigable. However,
in Hawaii, this lake was always private property.
v. Court has never held that the navigational servitude creates a blanket exception to the
Takings Clause
1. It does not follow that although the pond is subject to regulation by the Corps,
that the pond is subject to a public right of access.
2. Congress can ensure the public a free right of access but that may be considered
a taking.
vi. Navigational servitude is the notion that the determination whether a taking has
occurred must take into consideration the important public interest in the flow of
interstate waters that in their natural condition are in fact capable of supporting public
navigation.
vii. The interest of the petitioner is strikingly similar to that of owners of fast land adjacent
to navigable water.
1. They have a body of water that was private property linked to navigable water
by a channel dredged with the consent of the government
2. It can lead to the fruition of expectancies embodied in the conception of
property, which, if important enough, the government must condemn and pay
for before it takes over the management of the landowners property.
a. The right to exclude falls within this category of interests that the
government cannot take without compensation
viii. Therefore, the government cannot take the petitioners land without just compensation.
ix. Factors taken into consideration
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1. Expectation created that the right to exclude others would continue and
historically, it was considered private.
2. Historically, it was considered private.
x. Extent to which Congress can extend public rights and not have a taking.
xi. Dissent
1. Add that the pond was navigable prior to the development of the present marina
because it was subject to the ebb and flow of the tide.
xii. Notes
1. The test of navigability for purposes of the navigation servitude is not
coextensive with the traditional Commerce Clause concept of navigability for
regulatory purposes because it does not include the ebb and flow test.
d. Sporhase v. Nebraska Ex Rel. Douglas
i. A well located on the Nebraska tract pumps ground water for irrigation of both
Nebraska and Colorado tracts.
ii. Nebraska had a statute restricting the withdrawal of ground water from any well within
Nebraska intended for use in another state.
iii. The Nebraska Supreme Court had ruled that the statute does not violate the Commerce
Clause since, under Nebraska law, groundwater is not an article of commerce; it is a
unique commodity owned by the public.
1. Public Ownership Theory
a. Premised on the thought that the State owned its wild animals and
therefore was free to qualify any ownership interest it might recognize in
the person who capture them.
iv. The U.S. Supreme Court disagrees, ruling that groundwater is an article of interstate
commerce.
1. Because of the multistate character of the aquifer in question, there is a
significant federal interest in conservation and preservation of scarce water
resources.
2. Water is used in agriculture and groundwater is interstate commerce.
v. Water is important:
1. Conservation of water
2. Multistate aquifers
a. It is imperative that congress be allowed to regulate if needed.
3. Welfare and public health
a. Government has an interest in regulating for public welfare.
vi. The statute's reciprocity provision violates the Commerce Clause because it imposes an
impermissible burden on interstate commerce.
1. While the statute's purpose to preserve and conserve groundwater is
reasonable and advanced by three of the statute's conditions for the withdrawal
of water for interstate transfer, the reciprocity provision operates as an explicit
barrier to commerce between Nebraska and its adjoining states.
2. The statute does not meet the strict scrutiny test for facially discriminatory
legislation.
3. The state failed to demonstrate that the reciprocity requirement advances the
state's legitimate conservation and preservation purpose.
vii. The Court also rules that Congress has not granted the states permission to engage in
groundwater regulation that would otherwise be impermissible.
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viii. Nebraska statute forbidding commercial exportation of water from Nebraska was
unconstitutional in that it violated the dormant commerce clause.
ix. Notes
1. States can regulate out of state, out of basin transfers
a. Dont fare well when challenged
2. If aquifer only in one state, and interstate transfer is regulated, may fare better
because it is localized
3. So long as the transfer statute has same burdens when transferring out of state,
statute will probably be okay. Otherwise, its an obvious burden to interstate
commerce.
II. Federal Legislative Programs and Preemption of State Law
a. Licensing and Permitting of Nonfederal Projects
i. First Iowa Hydro-Electric Cooperative v. Federal Power Commission
1. The cooperative filed a declaration of intent to construct and operate a dam,
reservoir, and hydro-electric power plan.
2. It also filed an application for a license, under the Federal Power Act, to
construct an enlarged project
3. Proposed diversion will take all but about 25 cfs of water
a. Reduce the flow in the Iowa River
4. Commission found that the cooperative had not presented evidence of
compliance with the requirements of state laws of Iowa requiring a permit from
the State Executive Counsel
5. To require the petitioner to secure the actual grant to it of a state permit as a
condition precedent to securing a federal license would vest a veto power in the
Executive Council of Iowa over the federal project.
a. Compliance with State requirements that are in conflict with federal
requirements may block the federal license.
6. Where the federal government supersedes the state government, there is no
suggestion that the two agencies shall have final authority
a. Conformity to both standards would be impossible in some cases and
probably difficult in most
III. Reserved Water Rights
a. Indian Reserved Rights
i. Winters v. United States
ii. Colville Confederated Tribes v. Walton
b. Federal Reserved Rights
i. Cappaert v. United States
ii. United States v. New Mexico
c. Adjudication and Administration
i. Colorado River Water Conservation District v. United States
ii. United States v. Anderson

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