Escolar Documentos
Profissional Documentos
Cultura Documentos
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
Water Law - Page 1 of 66
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
Water Law - Page 2 of 66
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
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)
Water Law - Page 6 of 66
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
Water Law - Page 7 of 66
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
Water Law - Page 8 of 66
c.
d.
e.
f.
g.
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
Water Law - Page 13 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
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
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
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.
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
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.
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.
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
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.
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
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
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
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.
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. 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
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
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
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
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
Water Law - Page 64 of 66
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.
Water Law - Page 65 of 66
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