United States
               Environmental Protection
               Agency
              Robert S Kerr Environmental Research
              Laboratory
              Ada OK 74820
EPA-600/2-78-180
August 1978
              Research and Development
&EPA
Western Water
Laws  and
Irrigation
Return  Flow

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                RESEARCH REPORTING SERIES

Research reports of the Office of Research and Development, U.S. Environmental
Protection Agency, have been grouped into nine series. These nine broad cate-
gories were established to facilitate further development and application of en-
vironmental technology.  Elimination of traditional grouping was consciously
planned to foster technology transfer and a maximum interface in related fields.
The nine series are:

      1.  Environmental Health  Effects Research
      2.  Environmental Protection Technology
     3.  Ecological Research
     4.  Environmental Monitoring
     5.  Socioeconomic Environmental Studies
     6.  Scientific and Technical Assessment Reports (STAR)
     7   Interagency Energy-Environment Research and Development
     8.  "Special" Reports
     9.  Miscellaneous Reports

This report has been assigned to the ENVIRONMENTAL PROTECTION TECH-
NOLOGY series. This series describes research performed to develop and dem-
onstrate instrumentation, equipment, and methodology to repair or prevent en-
vironmental degradation from point and non-point sources of pollution. This work
provides the new or improved technology required for the control and treatment
of pollution  sources to meet environmental quality standards.
This document is available to the public through the National Technical Informa-
tion Service, Springfield, Virginia 22161.

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                                              EPA-600/2-78-180
                                              August  1978
               WESTERN WATER LAWS
                       AND
             IRRIGATION RETURN FLOW
                       by

              George E. Radosevich
 Resources Administration and Development, Inc.
          Fort Collins, Colorado  80522
                    R-803166
                 Project Officer

                James P. Law, Jr.
             Source Management Branch
Robert S. Kerr Environmental Research Laboratory
             Ada, Oklahoma  74820
ROBERT S. KERR ENVIRONMENTAL RESEARCH LABORATORY
       OFFICE OF RESEARCH AND DEVELOPMENT
      U.S. ENVIRONMENTAL PROTECTION AGENCY
              ADA, OKLAHOMA  74820

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                                DISCLAIMER
     This report has been reviewed by the Robert S. Kerr Environmental
Research Laboratory, U.S. Environmental Protection Agency, and approved for
publication.  Approval does not signify that the contents necessarily reflect
the views and policies of the U.S. Environmental Protection Agency, nor does
mention of trade names or commercial products constitute endorsement or
recommendation for use.
                                     ii

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                                   FOREWORD
     The Environmental Protection Agency was established to coordinate
administration of the major Federal programs designed to protect the
quality of our environment.

     An important part of the Agency's effort involves the search for
information about environmental problems, management techniques and new
technologies through which optimum use of the nation's land and water
resources can be assured and the threat pollution poses to the welfare
of the American people can be minimized.

     EPA's Office of Research and Development conducts this search
through a nationwide network of research facilities.

     As one of these facilities, the Robert S. Kerr Environmental
Research Laboratory is responsible for the management of programs to:
(a] investigate the nature, transport, fate and management of pollutants
in groundwater; (b) develop and demonstrate methods for treating waste-
waters with soil and other natural systems; (c) develop and demonstrate
pollution control technologies for irrigation return flows, (d) develop
and demonstrate pollution control technologies for animal production
wastes; (e) develop and demonstrate technologies to prevent, control
or abate pollution from the petroleum refining and petrochemical in-
dustries, and (f) develop and demonstrate technologies to manage pollution
resulting from combinations of industrial wastewaters or industrial/
municipal wastewaters.

     This report is a contribution to the Agency's overall effort in ful-
filling its mission to improve and protect the nation's environment for
the benefit of the American public.
                                                        C.
                                        William C. Galegar, Director
                                        Robert S. Kerr Environmental
                                          Research Laboratory
                                      111

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                                  PREFACE
     This report is a companion study to a project and report entitled
Achieving Irrigation Return Flow Quality Control  Through Improved Legal
Systems, by G. Radosevich and G. Skogerboe.  While the report concentrates
on a definition and explanation of the laws for water allocation and dis-
tribution in the seventeen western states, the companion study carries the
dialogue further into an examination of the water quality laws of the
western states and to what extent these two legal systems (quantity and
quality control) interface.  The latter report also explores the integra-
tion of legal  controls with physical/technical realities.

     It is suggested that the interested reader refer to both reports
for a total  picture of western water laws (quantity and quality), water
administration and potential  legal/technical  solutions to the irrigation
return flow quality control issue in the West.
                                     G.  Radosevich
                                     IV

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                                 ABSTRACT
     The impact of water law upon allocation and use of waters  within  the
western United States is currently recognized as one of the  major  constraints
to adaptation by irrigated agriculture of more efficient operation practices.
This project provides a background of the law and evaluation of the potentials
through water law interpretations or changes to implementing improved  water
management technology.  Specifically, this report provides a synthesis of
water laws of each of the seventeen western states,  as well  as  providing a
state-by-state account of the water quantity laws, paying particular atten-
tion to features in the laws and their administration that direct  the  manner
of use and provide incentives or disincentives to more efficient use.

     General recommendations are offered that will permit or induce more
efficient and effective water management.  Specific  recommendations identify
areas requiring additional research to renovate state water  laws consistent
with present and prospective policies and needs.

     This report was submitted in fulfillment of Grant No. R-803166 by
Resources Administration and Development, Inc., under sponsorship  of the
U.S. Environmental Protection Agency.  This report covers the period June!,
1974 to October 31, 1976, and work was completed as  of September 30, 1977.

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                               CONTENTS
Foreword	ili
Preface.	iv
Abstract 	   v
Contents ,	vi
Figures. .	vii
Tables	.vii
Acknowledgments	viii

     1.  Introduction	1
             Evolution of a Problem	1
             Physical Solutions	3
             Legal Implications	4
             Project Objectives	5
             Research Approach 	  . , 9
             State Reports	15
     2.  Conclusions	17
     3.  Recommendations	20
     4.  The Arena	'	22
             System Components and Organizational Arrangements  .  . .22
             Agricultural Development in the West	25
             Summary	35
     5.  State Water Allocation Law	37
             Rise of a Federal System of Water Law	37
             State Water Law Systems	38
             Surface Water Laws	44
             Ground Water Laws	P  . .55
             .Drainage	58
             Incentives and Disincentives to Efficient Use	59
             Summary	67
     6.  State Water Quantity Agencies and Local
         Water Entities in the West	69
             Evolution and Status of Water Administration	69
             Emergence of Local Irrigation Organizations	72
     7.  Issues,  Concerns and Solutions	80
References	87
Bibliography 	90
Appendix	95
                                  vii

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                                   FIGURES
Number                                                                 Page
   1    Irrigation return flow and  improved water
        management	6
   2    The arena	 23
   3    Surface water law systems in  the western states  .	40
   4    Ground water law systems  in the western  states.  .  .  ...  .  .  . .41
   5    Organizational  structure  of mutual  irrigation
        companies	74
                                   TABLES
Number                                                                 Page
   1    A Summary of Western Water Law	42
   2    State Water Administration, Planning  and
        Development Agencies	71
   3    Comparison of Number and Types of  Irrigation
        Organizations in the West	79
                                    VI11

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                             ACKNOWLEDGMENTS


     In the preparation of this report, the author has received  the  coopera-
tion and assistance of a great number of people.   The guidance of Dr.  James P.
Law, Jr., Project Officer, Robert S.  Kerr Environmental  Research Laboratory,
Ada, Oklahoma, is gratefully acknowledged.   Particular thanks are extended to
Scott McColloch and Dennis Stickley for the laborious hours  spent in law
libraries identifying information contained in the state reports found in
Appendix A.

     The author is deeply indebted to the many state water agency personnel
and several water attorneys in western states that provided  materials and
numerous hours in meetings, conversing by telephone and examining portions
of the report.
                                     ix

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                                  SECTION 1

                                 INTRODUCTION

     ... As administration of water rights approaches its second
     century, the curtain is opening upon the new drama of maximum
     utilization and how constitutionally that doctrine can be inte-
     grated into the law of vested water rights.   We have known for a
     long time that the doctrine was lurking in the backstage shadows
     as a result of the accepted, though oft violated, principle that
     the right to water does not give the right to waste it.

                                                Justice Graves, 19681

EVOLUTION OF A PROBLEM

     And so it is that the seventeen western states are now faced with a com-
plex and sensitive situation that behooves the imaginative capabilities of
water administrators, users, engineers, lawyers,  economists,  sociologists,
and the public to work on solutions that will lead to a maximum utilization
of water in terms of both water quantity and quality, surface and ground, and
upper and lower basins.  Water law is a term that is rapidly becoming known
to people throughout the United States as more and more awareness is brought
about due to interests desiring water and finding out that this resource can-
not be legally touched without complying with a host of complex rules and
regulations at various jurisdictional levels.  This report is an introduction
into how these rules and regulations developed, and how the issue of irriga-
tion return flow became of national importance.  It is indeed a very inter-
esting history, ranging from no control and free use of the resource in the
West through an era of violence and conflict in the mid to late 1800's on into
a recognition of a need to establish some systematic format for resolving dis-
putes between existing potential water users.  It is unique because this is a
resource which in many countries is considered a  free good, like air and wa-
ter.  It is a resource whose development coincided with land development in
the West, and as a consequence, there is a high degree of similarity and con-
nection between land and water resources control.  This similarity, for ex-
ample, does not exist with the development of other natural resources such as
gas and oil.

     Whenever water is diverted from a river for  irrigation use, the quality
of the return flow becomes degraded.  The degraded return flow then mixes
with the natural flows in the river systems.  This mixture is then available
to downstream users to be diverted to satisfy their water demands.  This
process of diversion and return flow may be repeated many times along the

ipellhauer v. People. 167 Colo. 320. 447 p.2d 986.

                                      1

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course of a river.  In the case of original diversion, if the increase in
pollutants contained in the return flow 1$/small in comparison to the total
flow in the river, the water quality would probably not be degraded to such
an extent that it would be unfit for use by the next downstream user.  If the
quantity of pollutants (e.g., salinity) in the return flow is large in rela-
tion to the river flow, then it is very likely that the water is not suitable
for the next user unless the water is treated to remove objectionable con-
stituents.  Since water is diverted many times from the major rivers, the
river flows show a continual degradation of quality in the downstream direc-
tion.  As the water resources become more fully developed and utilized, with-
out controls, the quality in the lower reaches of the river will likely be
degraded to such a point that the remaining flows will be unsuitable for many
uses, or previous uses of the waters arriving at the lower river basin no
longer will be possible.

     The major problems resulting from irrigation are due to the basic fact
that plants are large consumers of water resources.  Growing plants extract
water from the supply and leave salts behind, resulting in a concentration of
the dissolved mineral  salts which are present in all natural water resources.
In addition to having a greater concentration of salts in the return flow re-
sulting from evapotranspiration, irrigation also adds to the salt load by
leaching natural salts arising from weathered minerals occurring in the soil
profile, or deposited below.  Irrigation return flows provide the vehicle for
conveying the concentrated salts and other pollutants to a receiving stream
or ground water reservoir.   It is necessary then to examine the waterlogging
and salinity problems  resulting from this process and to develop and implement
measures to control  or alleviate the detrimental effects.  The reader is di-
rected to Section 4 of the companion study, Achieving Irrigation Return Flow
Quality Control  Through Improved Legal  Systems, for an elaboration of the
irrigation return flow problem and its  physical characteristics.

     To maintain agricultural  productivity in irrigated agriculture—and we
must do more than that today—salts applied onto the croplands, which are dis-
solved in the irrigation water supplies, must be moved below the plant root-
zone in order not to retard plant growth.  Therefore, it is mandatory that
water supplied to a crop must exceed the actual water requirement of the
plants to include evapotranspiration needs, leaching requirements, seepage
losses, and in most cases other transit or ditch losses which may be
substantial.

     Usually tfte quantity of irrigation water diverted from a river far ex-
ceeds the cropland water requirement.  Data from many irrigated regions indi-
cate that seepage losses from canals and laterals throughout the water
distribution systems are extremely high.  Added to this problem is the exces-
sive application of water on farm fields, which results in surface runoff
from the lower end of the field (tailwater runoff) and/or large quantities of
water moving below the root zone (deep percolation).  The combination of
seepage and deep percolation losses cause ground water levels to rise (water-
logging).  In many irrigated regions, the ground water levels have reached
the vicinity of the root zone which frequently results in the upward movement
of ground water due to capillary action.  When upward moving water reaches
the soil surface and evaporates, the salts contained in the moisture are left

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behind on the ground surface.   This process of salinization has  not only re-
sulted in declining agricultural  production, but has  caused many lands  to be-
come essentially barren.

     Historically, some degree of salt concentration  due to irrigation  has
been usually accepted as the price for irrigation development.   In  some
areas, however, there has been so much laxity that quality degradation  has
become a serious matter.  As pressures on water resources become greater due
to increasing populations and the necessity to produce food in  increased
quantity and improved quality, there is a mounting concern for  proper control
of serious water quality deterioration and soil salinization.   The  need,
then, for more precise information as a basis for wise policy action is a
matter of critical importance.

PHYSICAL SOLUTIONS

     There are a number of potential solutions for controlling  the  quantity
and quality of irrigation return  flow.  The irrigation system can be subdi-
vided into the water delivery subsystem, the farm, and the water removal sub-
system.  Using efficient practices in the delivery canals and pipelines as
well as improving on-farm water management will minimize the problems in the
water removal system.  In most cases, the key to minimizing irrigation  return
flow quality problems is to improve water management  practices  on the
croplands.

     The water delivery system can be improved by lining canals  and laterals,
using closed conduits for water transportation, providing adequate  control
structures, and installing flow measuring devices.  Improved practices  that
can be used on the farm include judicious use and application—or placement—
of fertilizers, use of slow-release fertilizers, controlling water  deliveries
across the farm, use of improved  irrigation application methods  (e.g.,  sub-
surface application of trickle irrigation), control of soil evaporation, use
of a pumpback system to allow recycling of surface return flows, erosion con-
trol practices (e.g., contour farming), and irrigation scheduling to insure
that proper amounts of water are  applied at the times required  by the plants.
In the water removal subsystem, open drains and tile  drainage can be used to
collect return flows, which can then be subjected to  treatment  on a large
area or basinwide basis, if necessary.

     There are also various institutional methods which can be  used to  control
irrigation return flow quality.  These methods include restricting  irrigation
development in areas of potentially high salt pickup, regulations on the use
of fertilizers or agricultural chemicals, tailwater controls which  would not
allow surface runoff from a farm, increasing water rate charges, changing
western water laws, use of irrigation scheduling to overcome institutional
constraints, consolidation of irrigation companies in an irrigated  valley
into a single management unit, and/or requiring that  anyone degrading the
quality of water pay the cost of  treating this water.  But the  task has been
a difficult one to handle in spite of our knowledge of ways to  solve this
particular problem.

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LEGAL IMPLICATIONS

     Early in the history of the West, it was established that each  state
could develop its own system of water laws to govern the allocation  and dis-
tribution of this resource.  The appropriation doctrine emerged from the con-
ditions existing in arid and semi-arid lands, and each of the seventeen wes-
tern states created water laws around the basic precepts of that doctrine.
Although accepting the major concepts of prior appropriation, significant
differences occurred in the substantive and administrative aspects of the
various state water laws.  To further complicate the means of water  regula-
tion and control, the more humid states in the High Plains and West  Coast re-
gion also integrated the common law riparian doctrine of England.

     Ground water legislation occurred much later in the states due  in part
to the lack of knowledge of subsurface supplies and in part to adequate sur-
face sources.  The basic principles for use and control follow  the  surface
doctrine , but again, each state adopted and modified the law to fit its per-
ceived needs.

     These laws, developed to solve particular problems at a sectorial
basis, lead to a lack of uniformity of policy and guidelines within  the
state as well as among the states.   For example, traditional western water
law was designed first to insure the miners of a water supply.  Shortly
thereafter, agriculture became the  dominant sectorial interest, greatly in-
fluencing the law's growth.  Without reshaping the contemporary system of the
early 1900's, municipal and industrial users were granted privileges and
rights under the law.  As a consequence of the erratic and sporadic  nature
of the evolution of western water laws, contradictions arose between the sur-
face and ground water doctrines and between the rights and privileges desig-
nated for various uses of water, creating doubt and frequently hostility
among users.

     The system of water law and administrative mechanism of these western
states can be classified as "use-oriented"—the dominant objective being to
utilize the water to produce an economic gain, which to many meant a liveli-
hood and to others a profitable venture.  Although this method of development
in the law was justifiable under the growth conditions of this country 50 or
100 years ago, we have now'progressed beyond the point of sectorialism.  It
lacks the maturity of incorporating the progress of other disciplines and the
changing patterns of American lifestyle.  For example, many state laws still
operate in near total ignorance of the hydrologic interface between  ground
and surface water.

     Directly affecting the management of water in the West is the water
right designed to provide the water user with the same constitutional guar-
antees extended to real property. The resulting effect upon agricultural
users is that certain rigidities in the exercise and protection of  the right
inhibit adaptation of more efficient practices.  Furthermore, the right
holder is primarily concerned with  his immediate geographic area, and not
with the effects from exercising his right upon downstream users who may be
in another state and themselves subject to different rules and regulations.

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     A more blatant criticism is the absence of quality considerations  under
the appropriation doctrine.  That is to say, among the elements of a  water
right and the procedures for exercising that right, there is no statutory
mention in the majority of state laws regarding quality of water.   Implicitly,
water right holders are entitled to the quality of water existing  at  the  time
of their appropriation.  Explicitly, courts in a few states have protected
the irrigation user from upstream polluters, but these judicial interpreta-
tions involved extreme instances of water degradation from mine tailings,
and the cases occurred in the early 1900's.  The issue between agricultural
users has not been resolved, nor has the quality degradation question between
the aggregate of irrigation users and other diverters been judicially
challenged.

     Today, the interrelationship of quantity and quality is recognized due
to progress in technology.  Technologically, approaches have been  developed
to identify the nature and amount of pollutant input and to control  the con-
centration through improved management practices.  Unfortunately,  irrigation
return flow quality control has been neglected or ignored by the users  and
water administrators, and thus has not been incorporated into state water
laws.  Thus, there is a need to examine the status of the state water laws
and to identify the constraints in the law that prevent efficient  water man-
agement cognizant of water quantity and quality relationships and  impacts.
We must be compelled to move from the "use-oriented" legal control system to
a "management-oriented," well-designed and uniform set of laws and policy
instruments, taking into account the total environmental impact yet flexible
enough to sustain change.  No longer can states utilize their waters  inde-
pendent of and without regard for the environmental impact upon their neigh-
bors.  However, the underlying manifestations of change in philosophy must
take into account the established rights and duties of water users and  the
social structure engendered under the existing system.

     The rapidly changing conditions in our country due to increased  popula-
tion, increased urbanization, increased industrialization, and increased  con-
cern with ecological mismanagement demand that the policies, provisions and
procedures set forth in water laws be reevaluated and updated.  Before this
can be accomplished, we must know exactly where we are, what features of
existing laws enhance the goal of total water management in conjunction with
other environmental and ecological concerns, and what features of  the law
should be modified, reinterpreted, or eliminated due to their constraining
features.
PROJECT OBJECTIVES

     Improved water management through coordinated planning has been a vital
goal of national and state governments since the mid-19601s with the passage
of the Federal Water Resources Planning Act of 1965 (PL 89-80) and creation
of state programs to prepare state water plans.  This goal  took on the element
of quality management as well as quantity management about the same time, but
with attention directed to water quality problems arising from municipal  and
industrial discharges.  However, during the past five years, irrigation return
flow quality control has become a regional and national issue (see Figure 1).

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                              OBJECTIVE:

                       IMPROVED WATER MANAGEMENT
PARTIAL SOLUTION:
   Improve the
 Utilization and
  Management of
  Water Through
 Improved Legal
     Systems
              SPECIFIC ISSUE:

  IRRIGATION RETURN FLOW QUALITY CONTROL
   Economic,
Environmental  &
 International
    Concern
 Irrigation Return
 Flow Research and
Development Program
(Now "The Irrigated
  Crop Production
 Research Program")
                                            Legislative
                                              Mandate
                                               (1972
                                         Water  Pollution
                                         Control  Act & Regs
                                           & State Law)
                               PROBLEM:

                           WATER APPLICATION

                            Overapplication
             Reduced Productivity
         Degraded Return Flows
   Figure 1.   Irrigation return  flow and  improved water management.

                                   6

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Salt loading in the streams and rivers has reduced effective utilization of
water in several western river basins at a time when demands for suitable
quantities of water for a wide range of uses have increased enormously from
the regional growth and improved standards of living.  In the Colorado River
Basin, water users in Mexico and the Lower Basin states began to feel the
economic effects of salinity concentrations in the river and to recognize the
external diseconomies from irrigation return flows.   The issue became the
focal point of attention through environmental concern expressed by member
states of the Colorado River Basin, the Rio Grande River Basin and, in par-
ticular, downstream irrigators and other water users who have had increased
costs in water use due to rising salinity in the two rivers.  Also, treaty
and compact commitments are being examined and questions on responsibility
raised.

     The second element that has identified irrigation return flow quality
control as one of major national and regional importance has been the legal
expressions found in the 1972 Water Pollution Control Act Amendments (PL 92-
500), and the subsequent EPA regulations.  These provisions have been sup-
ported with the development of the National Pollutant Discharge Elimination
System (NPDES) program and state water quality control acts with provisions
oriented to improving the quality of the states' waters.

     The topic received national prominance with the creation of the irriga-
tion return flow quality control research and development program being
administered by the Robert S. Kerr Environmental Research Laboratory in Ada,
Oklahoma (Law, 1971).  To assist the Federal  Government in its efforts to
control water pollution, this program was created to find practical and
economic solutions to control salinity and nutrient concentrations introduced
into our river systems through irrigation return flows.  Research and demon-
strations in select areas of the western states are developing improved and
feasible water management technologies, but implementation still remains
questionable if underlying institutional constraints remain unchanged.

     The thesis of this report is that irrigation return flow quality control
(IRFQC) can be implemented through efficient water management.  This is con-
trary to the pollution control approach.  However, it is felt that from an
examination of the problem, this solution will be preventative rather than
curative in the long run.

     Research into the irrigation return flow quality control  problem focuses
upon water application from the irrigation system and the major agricultural
uses of water.   The problem develops when there is an overapplication of water.
This is defined as an application of water beyond the needs of the crop re-
quirements.   Specifically, two types of detriments emerge.   The first that
has direct effect upon the agricultural  user  is retarded growth, or a failure
to maximize production.   The second problem is one which is not readily appar-
ent to the immediate user, but ends as  an externality to other users.   This is
a degraded return flow that is subsequently used downstream.

     The key to partially  resolving the water quality degradation trend
attributed to irrigated  agricultural  return flow waters is  proper utilization
and management of the resource itself;  and the accepted tool  in our society
is the law.
                                     7

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     This report was designed to identify the necessary  modifications  and
changes in interpretations of western water laws  that will  facilitate  the
implementation of improved water management technologies, thereby  reducing
and controlling salinity and other forms of water pollution resulting  from
the exercise of irrigation water rights.   To accomplish  this goal,  three
major objectives were pursued:

     1.  Identification and review of all  relevant materials and literature
     pertaining to water laws in the seventeen western states,  and  rulings
     affecting water management in the West.

     2.  Preparation of a "state-of-the-art"  report  on state water  laws for
     the seventeen western states, which  included:

     a,  describing the system of water law in each  state;

     b.  delineating the unique substantive,  procedural, administrative, and
         organizational  aspects of the law relevant  to the  project  goal,
         placing particular emphasis upon  the impact of  the features as either
         constraints or facilitators to improved  water management and  use and
         their present role in the water quality  degradation problems  of the
         western states;

     c.  analyzing and emphasizing the role of water rights as  property
         rights and other salient legal  features  in  relation to irrigation
         return flow quantity and quality  control.

     3.  Based upon the  results of Objectives 1 and  2, general  recommendations
     suggest conceptual  changes to the state  water laws  that will provide and
     promote a legal atmosphere enabling more efficient  and effective  water
     management at the state and regional  levels  and specific recommendations
     identifying areas requiring additional  research to  renovate state water
     laws consistent with present and projected national, regional  and state
     policies and needs.

     A companion project entitled Achieving Irrigation Return Flow  Quality
Control Through Improved Legal Systems takes the  results of this report and
incorporates them into an' elaboration of the water quality  laws of  the seven-
teen western states as well as the administration of both quantity  and qual-
ity laws by-these states.  That project report, authored by Radosevich and
Skogerboe (1977), further provides an interface of the law  and  technology,
concluding with an influent control approach designed to meet federal  law
and regulation requirements as well as providing  flexibility in the state
agencies to attack the problem only where and when it exists.
                                     8

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RESEARCH APPROACH

Legal Tools and Literature Search

     This project is an attempt to examine the legal  aspects of irrigation
return flow quality.  The initial task was a systematic review of source
material  and the development of the parameters of the literature classifi-
cation system.  Because the project heavily emphasizes the legal  dimensions
of the water quality problem, the sources of materials and tools to identify
them were primarily of the legal  nature.

     Synonymous with a vision of the law by the  nonlawyers is wall-to-wall
shelves stacked tightly with thick volumes of books exposing conspicuous,
confusing titles and containing information classified according to large,
nebulous terms with vague relationships to each other.  These next few pages
are included primarily to familiarize the reader who  is not versed in  legal
research with the "tools" used in this report, and to increase understanding
of the significance attached to the various legal sources.

     To insure that all relevant materials were identified for this project,
the traditional criteria for classifying legal materials were applied.   The
legal materials and the internal  classification utilized throughout this
report are divided into three major categories according to the weight
attached to the authority.  These three are primary and secondary authori-
ties, and books of index.  The primary authorities are further divided into
statutory materials and judicial  decisions.  This authority is most persuasive
to courts, and is controlling unless overturned or distinguished.   Secondary
authority is not controlling, and includes legal encyclopedias, texts,  etc.,
as enumerated below.  Books of index are tools or aids used in legal research
to identify a precise case, statute, etc.  They are discussed below:

I.    Primary Authorities:

      A.  Statutory material:

         1)  Constitutional provisions for each of the project states  and
             federal constitution concerning water resources.

         2)  Statutes:

             a)  For the seventeen western states, those statutes  that  are
                 the state's water law system.  Many  states have separate
                 compilations of their state water laws (i.e., Colorado Water
                 Laws, by G. E. Radosevich, D. Hamberg and L.  Swick, Center
                 for Economic Education,  Colorado State University, 1975 with
                 updates; Idaho Water Laws and Regulations, Vols.  I and II,
                 Idaho Department of Water Administration, Boise,  Idaho, 1974
                 with updates; and Wyoming Water and  Irrigation Laws,  Office
                 of State Engineer, Cheyenne, Wyo.).

             b)  Federal  statutes granting states the jurisdiction over water
                 resources within state boundaries; reservation doctrine;

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            water pollution control and provisions related to salinity
            control and agricultural uses of water.  These materials
            are found in statutes at large, United States Code and
            United States Code Annotated.

    3)  Administrative Rules, Regulations and Rulings:

        a)  State water resources agency rules and regulations and
            rulings concerning the use of water;

        b)  Federal regulations and rulings on the subject found in
            the Code of Federal Regulations and Federal  Register.

    4)  Treaties concerning division of international  waters between
        Mexico and the U.S.A., Canada and the U.S.A. on the Colorado,
        Rio Grande, Tijuana, and Columbia Rivers.

    5)  Interstate water compacts between the states of the project
        area.   Compacts are reported in the United States Code, state
        statutes and separate publications.

B.  Judicial material:

    1)  State Supreme and appellate court decisions interpreting state
        water law and resolving disputes in the allocation, distribu-
        tion and utilization of the water resources.  Volumes of water
        cases  have been decided during the past 100 years.   Only those
        pertaining to the project have been incorporated into this
        study.  Two reporting systems exist for retrieval  of the state
        case law:

        a)  state reporters for each state; and

        b)  The National Reporter System prepared by West Publishing
            Company.

        In the latter system, states are divided into nine regions and
      ^ the reporter for each region contains all the cases for those
      - states within that region.   The regions are:

        a)  Atlantic Reporter, i.e., 10 A.^ 63;

        b)  California Reporter, i.e., 15 Cal.  91.   California has a
            separate national reporter for that state's  decisions.  In
            addition, California cases are included in the Pacific
            Reporter.

        c)  New York Supplement, i.e., 127 N.Y.S. 71;

        d)  Northeast Reporter, i.e., 99 N.E.2;

        e)  Northwest Reporter, i.e., 426 N.W.  72;

                               10

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             f)   Southeast Reporter,  i.e.,  88 S.E.  137;

             g)   Southwest Reporter,  i.e.,  200 S.W.2,  56;

             h)   Southern  Reporter,  i.e., 20 S.  56;

             i)   Pacific Reporter,  i.e.,  3  P.2 727.

         2)   Federal  cases deciding  issues  relevant  to the  project  scope  are
             included also for  their  bearing upon  the  status  of  irrigation
             return flow quality and  potential  impacts upon improvements  in
             quality control  to be  recommended.  These cases  are reported in
             U.S.  Reports, Supreme  Court  Reporter--Lawyers  Edition,  Supreme
             Court Reporter,  Federal  Reporter, and Federal  Supplement.  The
             latter three  reporters  are a part of  West's  National Reporter
             System.

         3)   In  addition to the case  reporters for state  and  federal  deci-
             sions, analyses  and annotations of cases  according  to  select
             subject matter are found in  the A.L.R.  series.

II.   Secondary Authorities.

     A.   There are two legal  encyclopedias:   Corpus  Juris Secundum  (C.J.S.)
         and American Jurisprudence  (Am.  Jur.}.  They  contain a  topical
         analysis of the law and are most useful in  beginning research  on a
         topic.   Significant to this  project is the  topic 93  C.J.S.  Water,
         and Waters and Water Rights in Am.  Jur.

     B.   Texts (i.e., Water Resources Management by  Meyers  and Tarlock);
         Restatements of the Law (i.e., Restatement  of Property, of Water
         Law, etc.); Treatises  and  legal  periodical  articles  (i.e.,  Land
         and Water Law Review,  Natural Resources Journal, etc.)  have been
         searched and-utilized  for  their  value.

     C.   Select  briefs prepared by  agencies  and attorneys on  the subject
         have been examined.  These  briefs,  particularly  to state supreme
         court decisions,  can be found in the depositories  to the state
         supreme courts or obtained  from  their originators.

     D.   Nonlegal   materials  have been used  to identify the parameters  of
         the problem and relate the  operation of the law  to the  consequences
         of  irrigation return flow.   These  sources  include:   University re-
         search  project reports (i.e., Consolidation of Irrigation  Systems:
         Engineering, Legal and Sociological  Constraints  and  FacilitatorsT
         by  Skogerboe, Vlachos  and  Radosevich,  C.S.U., 1973;  Characteristics
         of  Pollution Problems  of Irrigation Return  Flow  by Utah State  Univer-
         sity Foundation,  1969); agency reports  (i.e., Mineral Quality  Prob-
         lem of  the Colorado  River Basin  by  E.P.A.,  1971; Need for  Controlling
         Salinity  of the Colorado River by  Colorado  River Board  of  California,
         1970);  and National  Water Commission reports; comprehensive frame-
         work studies;  and other materials  produced  by consultants,  agencies,

                                    11

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          water user organizations,  material  from  nonlegal  periodicals, new
          reports,  and organizational  newsletters.


IIIt   Books of Index.

           As previously stated,  books of  index are crucial to anyone desiring
      to identify the status  of the  law on a  particular topic.  The primary
      indexes are organized around three major categories:  legislative en-
      actments, i.e., constitutional provisions, statutes, compacts, and
      treaties; judicial  decisions at the  state and federal level; and the
      index to legal  periodicals.

           Indexes  to state statutory materials are easily found within the
      set of volumes containing the  statutes.  It  is important in using the
      state index and statutes, however, to include a review of yearly enact-
      ments from the date of  the  codification.  They may be found as bound
      session laws  and supplements to the bound volumes.  A few states have
      adopted an insert system  so that deleted or  replaced statutes are dis-
      carded and the amendments inserted.

           Identification of  judicial decisions is through an index called
      Digests which,  through  the extensive topic and subtopic breakdowns, not
      only will  provide the decision but also a short summary of the point of
      law of the case.   There are three major digest systems:  1) General and
      Decennial  Digest;  2)  digest for each national reporter; and 3) state
      digests.   The  General Digest contains yearly volumes of case identifi-
      cations from the  last Decennial, or ten-year compilation.  All topics
      are contained  in  each volume of the General  Digest, whereas the Decen-
      nial  volumes are  amalgamations of all cases with several topics per
      volume.

           To determine if  there are any cases on  a particular topic in a
      certain jurisdiction, select the most general descriptive term (i.e.,
      water) and proceed  to that topic, alphabetically arranged in all of the
      Digest systems.   A further topical breakdown will provide the materials
      on the major topic.   If the selected term is not used in the Digest,
      refer to the descriptive  word  index which accompanies the digests.  A
      series of volumes entitled Words and Phrases, prepared by West, may be
      useful ho locate  any  case in the U.S. in which a word or phrase has
      been defined or case  turned upon.

           To check  if  a  case is  still good law, refer to Shepard's Citations.
      These volumes,  organized  by federal and state decisions and according to
      regions,  are highly complex to use, and it is suggested that the user
      read carefully  the  instructions contained in each citator.  The import-
      ance of the citator is  to determine if the case identified as pertain-
      ing to the issue  is:  a)  still good law; b) overturned; c) distinguished;
      and d) if other cases have  been decided which rely upon this decision.
      The Digests, citators,  and descriptive word  indexes are kept current by
      supplemental volumes  or inserts.  The Index  to Legal Periodicals con-
      tains  the  topical  and author identification of all articles published

                                    12

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      in legal  journals.   The citation provided will  give the author,  articles,
      journal,  volume, page,  and date.

     There are  several items  of usefulness to the lawyer and nonlawyer in
expanding one's knowledge of  the legal research tools and materials.   On  the
federal  side, two committee prints are important:  The United States  Courts,
Their Jurisdiction and Work,  Committee Print, Committee on Judiciary,  House
of Representatives, U.S.G.P.O.  1975;  How to Find U.S. Statutes and U.S. Code
Citations, 2nd  Revised Edition, Committee Print, Committee on the Judiciary,
House of Representatives, U.S.G.P.O.  1971.

     West Publishing Company  has prepared a brochure on identifying the rel-
evant cases according to  their "key numbering" system entitled West's  Law
Finder.   In addition, they have recently developed WestLaw, a computerized
legal research  system for judicial decisions for select years.

     Of particular importance to water resources and environmental matters
are two compilation systems that anyone working in these areas should  become
familiar with,  regardless of  discipline.  They are the Environmental  Reporter
and Environmental Law Reporter.  They contain most of the federal and  state
statutory materials on environmental  matters, including water quality  laws
(but not the water quantity laws), federal rules and regulations, state and
federal  environmental and resources decisions, and commentary articles.
Explanations on how to use them accompany each set.

Citations and Footnotes

     As an alternative to the usual legal practice of placing citations at  the
end of the report or page in  footnote or end note fashion, citations  will  be
contained in the text.  This  method was adopted to enable the reader,  regard-
less of discipline, to use the references to his best advantage.   Explanatory
notes accompanying the citation are placed in the text following  each  section
of the main report and are placed at the bottom of the page for the state
reports contained in Appendix A.

     For citations of cases and statutory materials, the following procedure
is applied:

     i.e., the  East Bay Utility Department was formed and functions
     under the  Municipal  Utility District Act (Pub. Util. Code, div.
     6,  Sec. 11501 et. seq.).

     In Ivanhoe II, the court noted that Water Code section 23195
     authorized irrigation districts to enter into contracts with
     the United States.  (Ivanhoe Irr. Dist. v All Parties. 53
     Cal. 2d 692 at p. 706, 1960).It also noted several sections
     of the Water Code are contrary to federal law (Id. at p. 706).

     The format used throughout this report for citing constitutional  and
statutory provisions, cases and other reference works is as follows:

     1.   Constitutional Provisions:  i.e., Arizona: Ariz. Const.  Art.  XVII.

                                     13

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      2.   State Statutes:
 # State
 (1)
 (2)
 (3)
 (4)
 (5)
Arizona
California
Colorado
Idaho
Kansas
 (6) Montana
 (7) Nebraska

 (8) Nevada
 (9) New Mexico
(10) North Dakota

(11) Oklahoma
(12) Oregon
(13) South Dakota

(14) Texas

(15) Utah
(16) Washington
(17) Wyoming
Statute Title

Arizona Revised Statutes
California Water Code
Colorado Revised Statutes
Idaho Code Annotated
Kansas Statutes Annotated
Revised Code of Montana
Reissue Revised Statutes
  of Nebraska
Nevada Revised Statutes
New Mexico Statutes Annotated
North Dakota Century Code
  Annotated
Oklahoma Statutes Annotated
Oregon Revised Statutes
South Dakota Compiled Laws
  Annotated
Vernon's Texas Code
  Annotated Water
Utah Code Annotated
Revised Code of Washington
Wyoming Statutes Annotated
                                           Abbr.     Example
A.
C.
C.
I.
K.
R.
R.
W.
R.
C.
S.
C.
S.
C.
S.
A.
A.
M.
A.R
C.W
C.R
I.C
K.S
R.C
.S.
.C.
.S.
.A.
.A.
.M.
Sec.
Sec.
Sec.
Sec.
Sec,
Sec.
45-107
1240
38-6-201
42-204
82a-713
89-2917
                                           R.S.S.N.  R.R.S.N.  Sec.  46-201
                                           N.R.S.    N.R.S.  Sec.  533.355
                                           N.M.S.    N.M.S.  Sec.  75-1-35

                                           N.D.C.    N.D.C.  Sec.  61-04-14
                                           O.S.A.    O.S.A.  82 Sec. 1205
                                           O.R.S.    O.R.S.  Sec.  537-250

                                           S.D.L.    S.D.L.  Sec.  46-5-65

                                           T.C.A.    T.C.A.  Sec.  5.001
                                           U.C.A.    U.C.A.  Sec.  73-3-18
                                           R.C.W.    R.C.W.  Sec.  90.48.162
                                           W.S.A.    W.S.A.  S3c.  41-206
      Where other state statute compilations are used, a full citation  is pro-
 vided.   States also  have yearly session laws.  These laws are cited, i.e.:
 Colo. S.L. and date.  Where the law has been codified into the  statutes and
 the date of enactment is significant, this reference will be made as follows:
 i.e.:  C.R.S.  Sec. 38-6-201,  L. 1974, meaning enactment of 1974.

      3.   Cases

      The standard system for  case citations is followed for both federal and
 state decisions.  State decisions have both a reference to a state  reporter
 and the West National Reporter for the region.  The state citations provide
 the volume, state and page, i.e.:  437 Ariz. 526,  respectively, and the
 National Reporter system provides the volume, reporter and page, i.e.:  321
 P.2d. 726,-respectively, meaning volume 321, Pacific Reporter 2nd Series,
 page 726.  The national reporters for the seventeen western states  are:
 Reporter

 Pacific Reporter
North  Western
South Western
                 States

                 Arizona, California, Colorado,
                 Idaho, Kansas, Montana, Nevada,
                 New Mexico, Oklahoma, Oregon,
                 Utah, Washington, Wyoming

                 North Dakota, South Dakota,
                 Nebraska
                                        Example Citation

                                        726 P.2d 324
                 Texas
                                        426 N.W. 78
                                        126 S.W. 2d 900
                                       14

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The date of the decision follows the citation.  Thus, a complete citation
would appear as follows:  Jones v. Smith (78 Ariz. 563, 126 P.  728, 1935).
     4.  Other References
     The procedure used for reference to published works is as  follows:
     i.e., 	 (Jones, 1947).
     i.e., "	" (Jones, p. 52, 1947).
     i.e., 	 (A Legislative History..., p. 693, 1975).
These cited reference sources are listed in the References section of this
report.

STATE REPORTS
     In order to determine each state's programs and procedures for alloca-
tions, distribution and administration of waters within its boundaries, it
was necessary to prepare state-of-the-art reports on the water  quantity laws
and related matters for each of the seventeen western states.  In compliance
with objectives 1 and 2 of this study, all state water quantity statutes,
relevant judicial decisions and agency regulations were identified and
analyzed.
     Appendix A contains the individual state reports on water  quantity for
each of the seventeen western states.  Each report is coded by  a number
alphabetically assigned the states as follows:
Code   State                Code   State                 Code   State
  1    Arizona                7    Nebraska               13    S. Dakota
  2    California             8    Nevada                 14    Texas
  3    Colorado               9    N. Mexico              15    Utah
  4    Idaho                 10    N. Dakota              16    Washington
  5    Kansas                11    Oklahoma               17    Wyoming
  6    Montana               12    Oregon
     The reports follow a systematic format for easy comparative analysis
between states.  The first digit refers to the state report number assigned
as previously set forth.  The second digit refers to the major  topic and the
third digit to subtopics.  Additional categories are not given numerical
designation.  The outline is as follows, with the first digit,  number 1,
referring to the Arizona state report according to the code number assigned:
     1.1    HISTORICAL BACKGROUND
     1.2    SUBSTANTIVE LAW
     1.2.1  Property Right in Water
     1.2.2  Acquisition of Right
     1.2.3  Adjudicated Water Rights v. Historical Diversion
                                     15

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1.2.4  Conditions of Use
1.2.5  Manner in Which Rights May be Adversely Affected
1.2.6  Legal Incentives and Disincentives for More Efficient
       Water Use Practices
1.2.7  Waste Water Disposal and Drainage
1.3    ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS
1.3.1  State Water Agencies
1.3.2  Judicial Bodies
1.3.3  Water Users and Their Organizational  Structures
1.4    POLLUTION CONTROL
REFERENCES
                                16

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                                 SECTION  2

                                CONCLUSIONS
1.   The appropriation doctrine in  its  basic  form,  but with modification  of
     select precepts,  is still  the  most ideal  legal  structure  to  allocate,
     distribute and administer water due to its  general  characteristics of
     continuity, flexibility and identity.

2.   The property right concept in  water for  agricultural  use  will  continue
     to be the single most critical factor for focus in developing  successfully
     implementable preventative and curative  solutions to  the  irrigation  re-
     turn flow quality problem, i.e., a change from perpetual  to  fixed term
     water rights with more specific conditions  and duty for use  of the
     resource.  However, the protection from  impairment of vested water
     rights is a paramount concern  and obligation of both  the  courts and
     water administrators.

3.   Generally, there is:  1) a lack of specificity of state water  laws in
     such key concepts as beneficial use, waste  and public versus private
     rights to resource use; and 2} a lack of uniformity in water laws
     between neighboring states sharing the same  surface and ground  water
     resources.

4.   The concept of customary or community practices is still  accepted by
     most states as the guideline for individual water use efficiency.

5.   There exists in many state laws and judicial decisions, legal   disin-
     centives for recapturing of salvaged or  developed waters  (e.g., Arizona,
     and Colorado).

6.   Inadequate records (i.e., present owner/user versus original applicant)
     will forestall or prevent legally enforceable programs for water use
     efficiency.  It should be pointed out, however, that  many states (e.g.,
     Colorado, Montana, Utah, Wyoming)  are in the process  of maintaining
     adequate and complete records  of current water right  holders.

7.   At the water user level, failure to explicitly provide for corresponding
     duties to the right to use water,  within the spectrum of  water user
     categories, creates inequities in  the system.

8.   Administrative capabilities are often hampered by deficiencies or re-
     straints in the law (e.g., lack of pragmatic ground water laws, limita-
     tion on agency jurisdiction to handle problems directly related to the
     agency's primary functions).

                                     17

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9.   There is a general tendency for state water agencies to regard the tech-
     nical "water right holders" as their main constituency and not to view
     the public "water user" on an equal  basis.

10.  There is a failure in many state water laws to administratively incor-
     porate water quantity and quality control to the extent that water qual-
     ity is an explicit element of a water right, both for water use and
     discharge of return flows.

11.  The complex and compounded jurisdictions of state and local public
     water agencies cause apathy among water users and administrators.

12.  The emergence of the super-intervening "federal  water rights" and
     federal water quality control  tactics affecting irrigation return
     flows has polarized state water agencies and users into a dogmatic
     front to protect vested water rights.

13.  On the positive side, aside from considering the doctrine of prior
     appropriation in concept as the most fundamentally acceptable and
     appropriate water doctrine for the West, and aside from the fact that
     many states are making significant recent progress to modernize the
     water laws, several states have commendable legal  provisions and
     organizational arrangements which enhance their overall  capacity to
     improve the quality of highly degraded irrigation return flows.  Among
     the most important are:

     a.  The definition of beneficial  use found in California and
         Washington statutes.

     b.  Washington's provisions that do  not allow condemnation of agricul-
         tural water rights where certain criteria are followed by the
         agricultural water user.

     c.  Nevada's concept of duty of water.

     d.  The contract approach to water allocation practiced in California
         and Utah.

     e.  The administrative integration of water quantity and quality control
         In California and Washington.

     f.  Adding water quality as a specific element to a water right in
         California.

     g.  Placing the burden on water users to help the state keep water
         right records current (Idaho, Oklahoma).

     h.  Forfeiture statutes with a nonuse only time frame to rid the records
         of "paper" and unexercised water rights.

     i.  Texas'  periodic evaluation of outstanding permits resulting in
         cancellation of unused permits.

                                     18

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j.  The New Mexico statutory recognition of a reasonable degradation
    from water use.

k.  The Kansas requirement of periodic checks on water waste and qua!'
    ity impacts.
                                19

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                                 SECTION  3

                              RECOMMENDATIONS


     In recognition of:   1)  the hydrologic  interrelationship  between  surface
and ground water; 2) the correlation  between water  use and water quality
degradation; and 3) the  flow characteristics of  the resource  in an area of
the country where irrigation is the major water  user, but where expanding
populations, increasing  industrial activities, strong environmental concerns,
and rapidly developing energy activities  are placing a heavy  demand on avail-
able water supplies, it  is recommended that the  states:

     1.  Seek to achieve improved recognition by the laws and in the  appli-
     cation of the interdependences  and  interrelationships of water  quantity
     and quality and with other natural resources.

     2.  Seek to achieve improved uniformity of  the water laws between the
     states.

     3.  Develop uniform criteria for efficiency in water use per user sector
     to include criteria or  standards for beneficial use, waste and duty of
     water, and that such criteria apply  to all  users, and not just competing
     water right holders or  applicants.

     4.  Embark upon a continuing education program for water users to bring
     about an awareness  of water problems and better use practices in an
     effort to develop a social  consciousness in the use of water resources.

     5.  Adopt a program to  maintain  a current registry of water right holders
     or users with the further recommendation that  the burden of providing
     annual notice of acquisition of  water  rights and/or exercise of  water
     rights be upon the  water right claimant.

     6.  Define the "public  trust" duty of  state and public water agencies.

     7.  Define the rights and duties of  public  and privately organized
     individuals, agricultural  water  users  at all levels of the irrigation
     subsystem, i.e., water  diversion and conveyance, water application and
     water removal subsystems.

     8.  Expand the conditions or elements  of a  water right to explicitly in-
     clude water quality.

     9.  Adopt a system  of term permits and state negotiated  contract water
     rights for future allocation of  unappropriated waters.

                                     20

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     10.   Encourage the transfer  or  assignment  of water  rights to  regional
     water authorities  for improved  dependability of delivery of needed sup-
     plies, management  of the  available  water resources  in the area, and
     maximization of the use of the  resource.
     11.   Adopt a policy and process for the conjunctive use of ground and
     surface waters.
Specific  recommendations of needed research are:
     1.   Analyses of de facto  water  agency operations in enforcement of bene-
     ficial use and waste, and duty  of water.
     2.   Attitudinal study of  what state water  agencies  perceive to be their
     role in water distribution,  development and  management.
     3.   In-depth examination  of  local water user organizations' duty to  the
     state and public in the use  of  appropriated  waters.
     4.   Determine the real benefits of  conservation practices upon improving
     degraded irrigation return flows.
     5.   Explore approaches and costs of converting from a perpetual water
     right system to a system  where  water is allocated under term  permits
     and "contract water rights."
                                     21

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                                 SECTION 4

                                 THE ARENA


 SYSTEM COMPONENTS AND ORGANIZATIONAL ARRANGEMENTS

      Attention upon  irrigation return flow has come about partly because of
 the interaction of the legal and organizational systems with the natural
 resource system and  perhaps more through the tendency of our political sys-
 tem to lean heavily  upon "law" to resolve problems.  The problematic frame-
 work within which the analysis will be carried out restricts itself to
 these systems  (Figure 2).

      The legal  component is divided into the substantive system and the
 implementation system.  The substantive system can be further broken down
 into the static and  the dynamic component.   The static component consists
 of the law which has created the concept of the property right in water and
 which is based upon  the concepts of real and personal property in law.  As it
 applies to water, this property right is one of use, not ownership.  This
 usufructuary right in water specifies the source of the supply, the quantity
 of water to be diverted, the point of diversion, the type of use, and the
 place of use.   The latter two characteristics of a property right under the
 appropriation  doctrine give rise to the time element of the property right;
 for example, if it is a municipal right that is being used to supply water
 in a municipality, the right will be exercised three hundred and sixty-five
 days out of the year.  However, if it is an agricultural right, it is valid
 for the growing season, i.e., one hundred and eight days or no more than
 filling of a reservoir once a year.  Missing from the elements of a property
 right in water is a  specific reference to water quality with the exception of
 California.  The element of water quality in the majority of states can only
 be pursued*and preserved under the common law nuisance doctrines.  In
 California,  the state has integrated water quality and quantity control into
 the law,  and in the  past five years the quality of water has become a feature
 of water riaht  aoolication.

      The dynamic process of the water rights system involves the necessary
 action  in order to exercise the water right.  The first is that there must be
 a  diversion  of the water from a source of supply.  This has been defined in
 various  ways under state laws to include the most strict interpretation of
 the  physical diversion from the water ways to a symbolic diversion according
 to the use to which  the water is being made, thus allowing for instream uses.
A  second  element is  the application of water to beneficial use.  Again, this
definition ranges widely among states' laws, but in general pertains to the
utilization of water for one of the recognized beneficial uses of water, such


                                     22

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       SUBSTANTIVE   LAW    SYSTEM
                        LAW


                     Water Right


                            (expressed in)
      STATIC
ro
co
     DYNAMIC •
                    L-QuQlity

                 Place •,

            LType of Use'

        '"Point of Diversion

    ~ Quantity of Right

"-Source of Supply

    V.	  	
               V
         (  in order to exercise)
                                I
                 Diversion
                      I	
 Beneficial  Use
	I
                                I
                         ( os  related to)
                                 IRRIGATION   SYSTEM
                                                                  Catchmtnt
                                                 Water CXIivery   R«' Z<*<»
                                                 Subsystam
                                                                     0  Seepage

                                                                     (?)  Deep  Percolation

                                                                     (3)  Toilwater Runoff
                                                                 DELIVERY    USE    REMOVAL
                                                                                                     IMPLEMENTATION  SYSTEM




                                                                                                             STATE


                                                                                                   (  issues and administers water rights )


                                                                                                            ENTITIES









^ Regional
Authorities
LDistricts
-Water User Associations
^Irrigation Companies
Individuals
                                                                                       ( exercise  rights  through )
                                                                               Organization
                                                                                                                 Procedures
                                                                                                                    and
                                                                                                                 Practices
Facilities
                                                                                               leading  to)
                                                    RESULTING IN  IRRIGATION RETURN FLOW  FROM I. 2, ft 3.
                                                                Figure 2.    The  arena.

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as domestic, irrigation, industrial, municipal, and in the  most contemporary
definitions, recreation and aesthetic uses.

     The substantive provisions are carried  out through an  implementation
system at the public and private levels.   Responsibility for administering
the state water laws and distribution of the water is normally designated to
a state agency created specifically for this purpose.  The  usual  functions  of
the state agency include administration of the law and distribution  of the
water, but in many cases centralized authority includes adjudication of water
rights in a quasi-judicial  proceeding and responsibility for statewide plan-
ning and management of the water resources.   The state agencies have field
offices according to the hydrologic boundaries of basins and subbasins within
the state.  In many states, specialized courts—such as the division water
courts in Colorado—handle adjudication of water rights and other water right
problems.

     Beyond the administrative structures of the state is the spectrum of
entities oriented to acquiring and exercising the water rights.  These enti-
ties range from the individual farmer who applies for the water right; to the
company which represents a gathering of water users to share the costs and  to
take advantage of the economies of scale through cooperation in diverting and
delivering the water; to the federation of several  companies into water user
associations; to the irrigation districts which are quasi-public to  public
entities having power to levy taxes upon all land owners within their bound-
ary; to regional type of authorities such as conservancy or conservation
districts, or river basin authorities organized along either hydrologic bound-
aries or politically designated boundaries.   In many instances, drainage is
included as a function of the entity.  Specific legislation exists in most
western states for the creation of formal organizations.

     Each of these entities utilizes their water right in the implementation
process through:  1) the organization as one of the members of the range of
entities; 2) the procedures and practices of the entity; and 3) facilities
for diversion and delivery.  The substantive and implementation systems were
initially developed in direct relationship to the utilization of water in the
irrigation system.

     The irrigation system can be broken down into a variety of components
categorized according to source of water supply, method of  delivery, place
of use, and types of return flow.  These sources of water supply may come
from either:  a) a river or natural stream;  b) ground water as pumped through
a well; or c) through a catchment of diffused surface waters or a tapping of
a spring.  The water is diverted from the source through a  conveyance system
owned and operated by any one of the entities heretofore mentioned.   There
may be an instream or offstream storage facility which holds water allocated
for use under the water right.  Through the  delivery and use of the  water,
return flows may occur from:  1) seepage from the conveyance system; 2) deep
percolation from application of water to the field; or 3) tailwater  runoff.
This return flow water may either enter directly into the same or other
source of supply, or into a drainage ditch which then conveys it to  a river
system.  The importance of the relationship  between the legal and irrigation
systems is the impact upon irrigation return flow quality from the exercise

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of the water rights in the dynamic process  of diversion and  application  to
beneficial  use.

     The dynamic process of water use can be  broken  down into  the  three  sub-
systems of the irrigation system—delivery, use  and  removal.   Through  the
exercise of water rights, water is diverted and  applied, resulting in  irriga-
tion return flows which are delivered back  to the  natural water  courses  for
use by downstream appropriators.   Without the diversion, delivery  and  appli-
cation, return flows would only arise from  natural distribution  of precipita-
tion.  Man has modified this natural  regime to meet  his particular require-
ments and capabilities, resulting in  a host of varied  rules  and  standards
for diversion, delivery and use.   These rules and  standards  create rights
and obligations, ingrained with practice and  time  and  resistant  to rapid
change.  The processes for carrying out the rules  lead to the  development
of a range of formal and informal, public and private, single  and  multiple
purpose enterprises.  They, too,  become set in their ways and  resist deleter-
ious change as perceived by their operators.


AGRICULTURAL DEVELOPMENT IN THE WEST

     The western United States is comprised of a number of regions formed by
natural river drainage basins, not necessarily coinciding with administrative
boundaries.  To generalize, one may say that  with  the  exception  of the
Columbia-North Pacific region and some portions  of the California  and  Missouri
regions, the area known as the Mountain and Western  States simply  lacks  an
adequate supply of water.  Water that is produced  there is not available
where needed or when needed.  The northwest region may be the  exception, but
even the great Columbia River flows through large  expanses of semi-arid land.

Indian Irrigation

     There is a lack of recorded history about the activities  of American
Indians in early irrigation.  No records were kept and what  we know today
came from their memories and their practices  which became tradition and
then legend, and approached religious significance.  Today,  there  are  still
traces of some of the early Indian irrigation systems  in the western part of
the United States, with the best examples found  in the Rio Grande  Basin  in
lower Colorado (Morgan, 1971).  This, of course, is  partly due to  the  warm
climate for crop production and ease  with which  water  could  be diverted  from
the river in the low valleys and onto riparian lands.   Morgan  writes in  his
definitive exposition of the great river—the Rio  Grande—that the ancient
people of this part of the country looked for the  most suitable  places in
which to live while becoming farmers.  Realizing that  their  maize  needed
water, they located in the valleys and began  making  use of the water that
flowed down from the mountains and formed the many streams and rivers.
"When people could stay where they chose to stay,  there was  time,  there  was
imagination, to improve their conditions of life"  (Morgan, 1971, p. 15).

     Prior to actually diverting the  water  from  the  river onto their fields,
the early Indians would channel the diffused  surface waters  to their crops.
When it was exceptionally dry, they would carry  their  water  in jars and  spill

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 it around  the  roots.  Over time, there were settlements along the river, and
 the  river  water was used to raise their crops.  "Nearly 1,000 years ago,
 people  were  irrigating their fields through well-laid canals and ditches"
 (Ibid., p. 60).

      The Colorado  River and its tributaries, like other rivers of the West,
 has  been used  from time immemorial.  Norris Hundley, Jr., has provided us
 with two of  the most fascinating narratives on the Colorado River water legal
 and  political  issues, battles and solutions.  His first book, Dividing the
 Waters  (1966), gives the reader an interesting insight into the evaluation of
 a  settlement on the Rio Grande, Colorado and Tijuana Rivers by the United
 States  and Mexico.  In Water and the West (1975), Hundley traces the back-
 ground  of  the  Colorado River Compact of 1922 and its subsequent impact on
 water users  throughout the basin.

      Frank Waters  (1974) discussed in detail the early development along the
 Colorado River, providing an extensive insight into the development of the
 Imperial Valley.   The Imperial Valley was the first large-scale private irri-
 gation  project to  utilize the Colorado (Ibid., p. 325).  Waters traces the
 development  of irrigation projects on the Colorado, particularly the Colorado
 River Project  in California.

      The prehistoric pueblo dwellers utilized the Colorado River.  Perhaps
 most famous  of the early water users are the Hohokam Indians of Arizona and
 their construction of an extensive irrigation canal system.  The city of Los
 Muertos predating  Columbus' discovery of the western world was supplied with
 water from the Gila River by canals 30 feet wide and 7 feet deep (Waters,
 1974).   This canal has a network of laterals for irrigation.  Similar devel-
 opments took place on the Rio Grande River.  "There were 30,000 people living
 in at least  30, perhaps up to 70, towns on the Rio Grande in Northern Mexico.
 They cultivated in all about 25,000 acres through irrigation from the river
 and  its tributaries and by the use of controlled flood waters" (Ibid., p. 60).
 The  Indians  were religious, and consequently a very superstitious people.
 Morgan  gives a very interesting account of the agricultural activities of
 these ancient  people.  He notes that the fields were laid in long, narrow
 strips  with  their  ends touching the river so that each field had access to
 the  river  water.   These farm lands were owned by the town, and the family's
 share was  assigned by the use of its cacique's council (Council of Elders).
 Within  tftis  tribal system of community property, there was also the practice
 of appointing  guards to watch over the fields.  This was usually the older
 men  who could  no longer work at irrigating and cultivating (Ibid., p. 61).
 These guards had a lookout most strategically located in the field area, and
 from here  he could observe if enemies or animals or other threats to the
 crops were approaching.

      The Indians had a ceremonialism founded upon the reverence for the
 primary elements of life itself—earth, air, water, and the creative fire of
 the  sun.   They worshipped the "Mother Earth" and realized from it was their
 birth,  life  and special nourishment from the land, water and sun.  Frank
Waters  states  that this philosophy is not as simple and primitive as is sup-
posed (Waters, 1974, p. xviii).  Perhaps it is the realization of this same
philosophy that is now the guiding principle in evaluating our resource use
and misuse.
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The Spanish Influence

     In the 16th century, the agricultural  life of the Indians  was  about  to  be
drastically changed.   The Spanish had landed in the Gulf of Mexico  and  with
them came a more sophisticated level  of agricultural  practice,  development and
management.  Colonies were established along the river bottoms, and there was
an exchange of information between newcomers and the indigenous population.
The Indians taught the Spanish, and the Spanish, in turn, showed the Indians
new irrigation methods.  In addition, the lands were being used more intens-
ively than before, as the Spanish grazed their livestock in the areas around
the irrigated fields.  The most significant changes in the agricultural prac-
tices were introduced by the "desert fathers"--the Franciscan  Friars.   Their
teaching involved almost all aspects of life from the introduction  of new
crops such as grapevines and fruits and vegetables, to the way  in which the
new orchards and fields could be irrigated from the river.  These practices
had been taught the Friars from their Mediterranean culture (Morgan, 1971,
p. 229).  Canals were constructed and in many instances stone  irrigation
troughs were hewn to convey the precious water to the fields.

     This system of irrigation created a need for developing rules  by which
the farmers would share their water and the work necessary to  maintain  their
delivery systems.  In the spring, the irrigation ditches would  be cleared of
the winter stubble.  Where a ditch served several families, the men from  each
family would come to do his share (Ibid., p. 368).  During much of  the  time,
water was plentiful and the farmers would use as much as they  felt  necessary
to grow their crops.  When it became more scarce, they would share  their
water, taking proportional reductions so that all families would at least
have a minimum amount of food.

Widespread Settlement

     Settlement throughout the West took place very rapidly during  the  19th
century.  Large-scale irrigation projects were organized and supported  by
foreign capital, primarily the British.  From Colorado to Texas and through-
out California and Arizona, small river dams and canals carried water  to
fertile fields.  Between Alamosa and Del Norte, a grid of irrigation canals
reached out from the Rio Grande for 30 to 40 miles on both sides (Ibid.,
p. 889).  The development of agriculture was just beginning to be appreci-
ated, and a land boom resulted.  There was a great deal of speculation  and
land values and water rights went wild.  It was easily seen that there  was
not going to be enough water for all of the proposed uses in agriculture and
mining in the many towns that were springing up all over the country.

     The evolution of western water law is very closely tied to the history
of land development.  It is beyond the scope of this report to delve into the
development of western land, for this has been done at great length by  the
Public Land Law Review Commission and definitively described by Gates  and
Swenson in The History of Public Land Law Development (1968).   What is  im-
portant, however, in appreciating the complexity of our western water  laws
is a brief exposition of the land development philosophy and of some of the
major acts that encouraged the settlement and development of the West.  The
greatest impact on western land development goes back to the efforts of the

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 Federal  Goverment  to make  lands available at little or no cost as an induce-
 ment  to  draw people from the  East into the West.

      One of the real problems  in settling the West was the private land
 claims from those  who  had  received grants from Spain, France and Mexico
 (Ibid.,  Ch.  6).  The laws  of  these countries were considerably different
 from  those adopted in  this country from the law of England.  The conflict
 was not  only with  the  land that was claimed, but as in the case of the
 Spanish  and Mexican land grants, the water rights that were also tied to
 these grants.

      An  Act long forgotten and given little credit for many of the underly-
 ing reasons for present irrigation practices and landholdings is the Land Act
 of 1796.   This  Act made permanent the rectangular system of survey with
 townships six miles square.  The townships were divided into 36 sections of
 640 acres each  and subsequently into quarter sections.  The Act provided for
 a  survey of public lands,  and it was decided that certain of these lands
 would be  sold at a  rate of  $2 an acre.  The intent, of course, was primarily
 to raise revenue,  and  thus the responsibility for administering the land
 acts  was given  to  the  Secretary of the Treasury.  Very little was done until
 1812  when the General  Land Office was created.   This office remained in the
 Treasury Department until  the Interior Department was created in 1849.

      Following  the Civil War, the United States began a new era of
 national  development—building upon its industrial base in the East and
 expanding its utilization  of resources in the frontier West.  The contribu-
 tion  of  these regions to the total  economy during this period appears to have
 been  confined almost wholly to development and utilization of the natural
 resource sectors,  notably  forestry,  mining and agriculture.  Rapid expansion
 of the railroad  system was probably the most significant single contributing
 factor to national growth  and development during this period.

      If  railroad expansion was the vehicle on which national development
 rode,  public land  policy was surely the engineer.   As early as 1850, millions
 of acres  of the  public domain were granted to the Central  States for the pur-
 pose  of  encouraging a railroad link between Chicago and the Gulf of Mexico.
 Similar  land offers, sweetened by cash assistance, were made to encourage
 westward  rail expansions.  In addition to grants made to railroads, a series
 of Preemption Acts were passed between 1800 and 1891.   These acts gave set-
 tlers on  public  lands a preferential  right to purchase these lands at a
 modest price.   It  had always been understood that the early settlers had a
 right to  preemption, but it was not explicit until the Preemption Act of 1830
 (Statute  420).   This Act gave all  settlers or occupants of public lands the
 right to  claim up  to 160 acres including improvements at $1.25 acre.   This
 enabled the  land user to enter his claim within the year and avoid having to
 bid for the  lands  at an auction.  From 1830 to 1854, numerous preemption acts
were passed  which  varied the land which could be acquired from 40 to 160
acres.  Although the preemption acts were severely abused and caused a number
of problems  for  the bona fide or the well-intending settlers, the acts  had a
very significant impact in opening up thousands of acres to settlement.  They
deemphasized  the sale of public lands for revenue and emphasized the efforts
to develop the West.   They made it easier for a bona fide settler to claim

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his land and avoid the hassle of auctions by giving him one full  year to
raise the money (Gates, 1968, p. 246).

     Further encouragement of agricultural  settlement in the West was provided
by the passage of the Homestead Act of 1862, which entitled any person who  was
either the head of a family or 21 years of age and a citizen to enter claim
on 160 acres of land at $1.25 an acre,  or 80 acres at $2.50 an  acre (Ibid.,
p. 394).  Homesteading could only take place on surveyed lands, until  1880,
when this restriction was removed.  However, there were other conditions  of
use.  The homesteaders had to swear that the lands were actually intended
for settlement and cultivation, and that the entries were made  by and for
the homesteader himself.   It also required a five-year residency on the land,
and cultivation before title would be awarded.

     During the time that the Homestead Law was being heavily advocated,
there were also public land law grants.  Congress was providing between 15
and 20mi 11 ion acres under the Pacific Railroad Act.   This amount was gradu-
ally expanded to a total  of 127 million acres.   In addition to  the railroad
acts, there were federal  land grants to the states.   Homesteading was made
even more difficult, in terms of finding land,  by the acreages  allotted for
Indian reservations.  By 1862, there were 175 million acres designated as
Indian reservations.  The sad part of this history of American  land law,
however, surrounds the various dealings and treaties in which the Indian  land
was sold to railroads and other purchasers.  Worse yet was the  Dawes Act  of
1887, which granted individual plots in fee-simple to the Indians.   Being
unfamiliar with the private ownership concepts, many lost or sold their
allotments.  By 1933, these reservations had been reduced in size to 50
million acres of some of the poorest land in the United States.

     Not all early legislation was designed to encourage traditional  farming.
The Timber Culture Act of 1873 granted to settlers a third of a quarter sec-
tion if they would plant the acres in trees and cultivate them.  No residency
requirements needed to be followed, and a thirteen-year land control  period
was allowed before the allotment would lapse.  Of the 43.5 million acres
entered under this Act, only 10,867 were ever granted a patent  (Ibid., p. 400).

     Up to this point in time, a settler could now enter upon 480 acres
under the preemption acts, Homestead Act, and Timber Culture Act provisions,
claiming land to be used accumulatively.  Still, however, land  was not being
settled at the rate that Congress had hoped.  In 1877, the Desert Land Act
was passed.  The philosophy of this Act was to encourage people to  settle
in the arid and semi-arid regions of the West.   It was observed by many
Congressmen that where a settler could divert water from the streams  or build
a small reservoir, the lands around the stream could be placed  into production
through irrigation.   It was readily noted,  however,  that this activity would
either require group action or considerable capital.

     Under the Desert Land Act (Act of March 3, 1877,  19 Stat.  377),  640
acres of non-timber!and could be acquired at the total  cost of  $1.25  per
acre if the land was reclaimed for irrigation within a period of  three years.
The importance of the Act to the water law picture of the West  was  that it
specifically granted water rights for the settled tracts.   Even under  this

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Act, however, there was limited land ultimately patented.   Out of the
32,803,914 acres entered upon, only 8,645,479 acres were ever patented under
the requirements of the Act (Ibid., p. 401).

     It was during the second half of the 1800's that emigrants and specula-
tors in the West realized the value of water and water rights.  The Public
Land Law Review Commission noted that the Desert Land Act  was abused from
the outset by cattlemen, and other people anxious to gain  ownership of water
rights.2  The abuse of the Act was immediately seen, however.  There were no
strict requirements that water actually be conveyed from source onto the land
through a water delivery system, and although the 640 acres had to be in a
reasonably compact form, many of the entries zigzagged to  take the very best
soil and locations near the streams.  By 1883, the abuse was so bad that there
were Congressional threats to repeal the Act.  The Act, however, did cause a
considerable amount of economic activity in the Rocky Mountain states, and
the governors of Montana, Wyoming and Utah felt that for this reason alone
the law should be kept in force.  Even Elwood Mead, the State Engineer of
Wyoming at the time, and one of the chief architects of the federal reclama-
tion policy, felt that the Act provided a most convenient  means of acquiring
title to land, although these settlements were both useful and injurious
(Ibid., p. 641).

     It was in the General Revision Act of 1891 that serious efforts were
made to minimize the abuse of the Desert Land Act.   After  1891, persons
claiming land under the Desert Land Act had to present plans for irrigating
the land including the location of canals and ditches projected and the source
of water.  Further, they were required to expend $1 per acre in each of the
first three years for construction of the irrigation works and leveling of
the land.  Another provision that is extremely important was that the settlers
were allowed and encouraged to associate together in planning the construc-
tion of the diversion and delivery systems.   As a result of this feature,
a great number of irrigation companies and associations were actually devel-
oped around the turn of the century.  In addition to these requirements, the
amount of land that could be settled was reduced from 640  to 320 acres, and
the entrymen had to be residents of the state.  Under the  Desert Land Act,
the law extended only to California, Oregon and Nevada and to the territories
of Washington, Idaho, Montana, Utah, New Mexico, and the Dakotas.  Colorado
was excluded until 1891, when it was included under provisions of the Desert
Land Act.
         t
     Some special remarks must also be made about religious factors which, in
some cases, were of prime importance in settling the West.  As a matter of
fact, religion has provided the impetus or constraints in  the evolution of
many irrigation systems.  When the Mormons settled the Utah Valley, farmsteads
were grouped in villages rather than being scattered around the cropland as
was common in the rest of the United States.  Throughout Utah there remain
early diversion dams, canals, irrigation and drainage ditches built and used
on a cooperative basis as a community enterprise (Waters,  1974, p.  325).  The
     2 The Preemption and Homestead Acts were originally much more applicable
to the more humid East and Mid-East states.

                                     30

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cause, according to one analysis, was  not  defense of  irrigation or any divine
signs received by the church leaders,  but  rather  "a sense of urgent need to
prepare a dwelling place for the Savior  at his  imminent  second coming"
(Nelson, 1952, p. 28).   Each of these  villages  built  its own irrigation com-
pany which served the area around the  community.  To  a large extent, the
present pattern of many medium sized irrigation companies reflects this
early development.  The irrigation  company became part of the community
affairs; it was part of the cooperative  endeavor of the  village.  Both vil-
lage and church pressure could be exerted  upon  recalcitrant farmers in order
to make the irrigation system operate  smoothly  (Hudson,  1962).  The Mormons
affected the pattern of land tenure by separating the farm buildings from the
crop land.  The idea of a unified farm which was common  in the rest of the
United States was weakened in the Mormon community.

     Other factors, too, were positive in  bringing about fragmented farms.
The settlement in groups created local land shortages.   The idea of self-
sufficiency brought individual farms rather than communal farms.  A doctrine
of economic equality gave each farmer  some of each type  of land while large
families caused further subdivision.   The  village form of settlement is more
efficient socially than dispersed farm houses.  Education, which is important
to the Mormons, and the interchange of ideas is made  easier while facilities
such as domestic water supply can be provided more readily (Nelson, 1933,
p. 26).

     As a result of strong family ties which resulted from a village form of
settlement, there has not been much migration of  Mormons from Utah or even
within Utah.  This has resulted in  the population of  Utah being higher than
it might have otherwise been.  This, of  course, has placed an extra burden on
irrigation systems.  Too, their group  feeling has manifested itself in the
church, which owns farms to help support welfare  programs that the Mormons
have for their own people of their  own religion.   In  recent years the number
of such farms has increased in Utah with a number of  results, one of which is
to move these farms from the tax burdens of the state and to increase the
tax burden upon the other land.  Their religion goes  into great detail in
establishing the relationship between  man  and water and  the rest of the sur-
roundings.  The Mormons have a high regard for  rural  life.  Nelson labels this
"agrarianism" and defines it as "the assignment of superior values to the
agricultural way of life."  This has  resulted in, especially in the early days,
a large amount of labor being devoted  to the development of irrigation systems
with farm land projects requiring cooperative labor and, in many cases, post-
ponement of immediate benefits.  The Mormon Utah  Valley  is a prime example of
how a religion can directly affect  the development of irrigation practices.
This religion places a high value on farm  life, and by virtue of its emphasis
on living close together, farms were  large and  unified.  Therefore, irrigation
practices moved quickly along this  valley  from  almost immediately passing over
the small farm to large-scale irrigation.

Large-Scale Development

     The problems of agricultural development west of the hundredth meridian
were considerably different from those of  the East and Mid-West--erratic
rainfall patterns and problems of water  availability  in  general created

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considerable hardships for increasing numbers of western settlers.   A great
drought, beginning in 1887, lasted for five years.   During this period, over
eleven thousand farm foreclosures were registered in Kansas alone,  consti-
tuting up to three-quarters of the farm land in many counties.   "In God we
trusted, in Kansas we busted" was a popular epitaph to the dead dreams of
those settlers returning to the East.  The crisis reached disaster proportions
when a general depression in the early 1890's sent agricultural prices plum-
meting.  Once the bright promise of individual fortune, the West was be-
clouded with all but rain (Dickerman, Radosevich and Nobe, 1970).

     In the 1870's, many major agricultural  settlements began to irrigate on
a cooperative basis, notably at Greeley, Colorado and in California at Anaheim
and Riverside.  The enthusiasm and conflicts over water led Colorado to adopt
the first water law in 1876.  By 1880, other western farm lands were being
cultivated with the assistance of irrigation water, much of this land being
in river bottom areas watered by small diversion ditches.  The  1880's saw
considerable expansion in privately organized irrigation projects and some-
what of a speculative "boom" in the financial obligations of water companies.
The first official census of irrigation covered the year 1889 and reported
3,631,381 acres of irrigated land in the western states.  By 1890,  the
Federal Government's role in irrigation had  become one of the many topics
clamoring for national attention while the decade of the 1890's was a period
of readjustment and reevaluation of national objectives and policy goals.

     By the turn of the century, proponents  of irrigation were  beginning to
agree that the Federal Government should take a more active part in irriga-
tion development.  A series of annual irrigation congresses, comprised of
individual water users and officials of both state and national stature, had
been meeting throughout the 1890's to discuss the issues of reclamation and
to suggest policy guidelines.  The Ninth National Irrigation Congress, which
met in Chicago in 1900, adopted resolutions  very similar to the policy pre-
scription advocated by Captain H. M. Chittendon in an 1897 report on Reser-
voirs in the Arid Region.  In that report, Chittendon not only  had called
for government ownership of sites and water rights, but also for government
construction and operation of irrigation works and for free distribution of
water.  Western Congressmen saw federal irrigation during the 1890's as one
of the few opportunities for federal assistance to their region.

     President Roosevelt was very interested in reclaiming the  West, and with
the support of Congressmen like Newlands, Harnsberger and Clark and Mr. Newell,
Senate*Bill 3057 was introduced.  The bill and amendments passed the House on
June 13, 1902 by a vote of 146 to 55, with 150 representatives  not voting.   It
emerged as the "Reclamation Law," with most of the major provisions set forth
by its authors still intact.  The Act created a "revolving" reclamation fund
into which all proceeds from sale of public lands were to be placed.  This
fund was so designed that, in theory, constructed reclamation projects would
be paid for in annual installments by the farmers,  and this money in turn
would be used to finance construction of future projects.  Costs for services
rendered were to be borne by those benefitted.  Initially, the  time limit for
repayment was set at 10 years, then extended to 20 years in 1914 (Reclamation
Extension Act of August 14, 1914, 38 Stat. 686) and to 40 years in 1926 (The
Omnibus Extension Act of May 25, 1926, 44 Stat. 636, Sec. 45).   An  initial

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10-year development period for repayment after project completion was allowed
in 1939.  Money expended on projects was not to bear interest on repayment.
Authority to locate and construct irrigation works was given the Secretary of
the Interior.  Property required to carry out the purpose of the Act could be
acquired either by purchase or through condemnation proceedings.  The Secre-
tary, however, was required to act within conformity to state laws relating
to water.

     A safeguard to prevent monopolization and speculation from the Act was
inserted:  "No right to the use of water for land in private ownership shall
be sold for a tract exceeding 160 acres to any one landholder,  and no such
sale shall be made to any landowner unless he is a bona fide resident of such
land	"  The Adjustment Act of 1926 relaxed the original 160-acre limitation
by permitting a landowner a reasonable time to sell  excess acreages at a price
satisfactory to the Secretary (Ibid.).

     Section 3 of the Act provided that the Secretary of the Interior shall
withdraw lands required for irrigation projects and land susceptible to irri-
gation from such projects from public entry.   The effect of this section was
to prevent entry and claim to the land under land settlement laws (Donley v.
West, 189 P. 1052, 1920), or timber and stone laws (Board of Control, Canal
No. 3, State of Colorado v. Torrence, 322 L.D. 472,  1904).  It  did not mean
that use of the land was restricted to irrigation or construction of irriga-
tion works.  For example, the Secretary of the Interior could lease out the
lands for grazing (Clyde v. Cummings, 35 Utah 461, 101 P. 106,  1909), provide
for removal of sand and gravel for private use (Department Decision, April  13,
1929, Boulder Canyon Project), or provide for other purposes which would not
interfere with the intended use of the land (Departmental Decision, 342 L.D.
480).  This policy in time evolved into the familiar multiple-use concept
still prevalent today.  The provisions of the Reclamation Act clearly empha-
sized Congress' primary objective of encouraging development of western lands.
Its legal framework has served as the cornerstone to the nation's reclamation
objectives.

     The Reclamation Act of 1902 has been amended numerous times over the
years to expand the program initiated under the original Act to include
multipurpose projects, changes in the repayment program and streamline the
orientation of the agency.  In 1923, following the Tea Pot Dome Scandal,
President Harding's new Secretary of Interior reorganized the Department of
Interior and created the Bureau of Reclamation in the place of  the Reclama-
tion Service.  The Reclamation Service was not associated with  the scandal,
but a change was considered important to the success of the program.

     As of 1932, the Bureau's basic objective was community development of
rural areas through provision of low-cost irrigation water to farmers and
generation of power for municipal and industrial uses to subsidize a large
portion of the irrigation project costs.  Conservation and water supply to
municipalities were added to the reclamation purposes during the 1930's and
1940's, along with the continual development of irrigation projects around
the West.  Most of these projects are constructed by the Bureau and after
a period of time—usually ten years—the operation is turned over to the
local irrigation district that was formed to enter into the repayment contract

                                     33

-------
with the government (see Dickerman, Radosevich and Nobe,  1970,  for detailed
history of the Bureau, and Pelz, 1972,  for Reclamation laws  annotated).

     Water planning and development was given an additional  boost in 1956.
The Small Reclamation Project Act (Small  Reclamation Projects Act of August
6, 1956, PL 84-984, 70 Stat. 1044) was  enacted to establish  a program under
which state and local organizations could obtain loans and grants for construc-
tion of projects with an estimated cost that did not exceed  $10,000,000.   This
Act provided that the maximum amount of the loan and grant for  any individual
project could not exceed $5,000,000, which was increased  to  $6,500,000 in a
1966 amendment.  This Act, administered by the Secretary  of  the Interior
through the Bureau of Reclamation, extended the Bureau's  scope  of operation
into a "federally assisted projects" area.  Concurrently, the Soil  Conserva-
tion Service of the Department of Agriculture was authorized to provide fed-
eral grants for this type of project through the Watershed Protection and
Flood Prevention Act (PL 566).  In addition to the Bureau and the SCS, U.S.
Army Corps of Engineers, Forest Service,  Department of Agriculture, Bureau of
Land Management, National Park Service, Bureau of Sport Fisheries and Wild-
life, and Bureau of Indian Affairs have been involved at  various stages and
levels in water planning and development in the West.  In fact, Lieberman
(1972, p. 1) reports there were as many as nine federal departments, seven
independent agencies, five offices and  councils in the Executive Office of
the President, and nine federal-state commissions involved in water resources
activities across the country in 1972.

     Much of the contemporary involvement of federal and  state  activity in
water planning was brought about by the Water Resources Planning Act of 1965
(PL 89-80, 79 Stat. 244, 42 U.S.C.A. 1962, July 22, 1965).   This Act de-
clared it to be the policy of Congress, in an effort to meet the rapidly
expanding demands for water, to encourage conservation, development and uti-
lization of our water resources on a comprehensive and coordinated basis  by
federal, state and local agencies and entities and individuals  (Ibid.,
Section 2).  It called for the creation of a Water Resources Council, river
basin commissions and financial assistance to states so they could undertake
comprehensive planning activities (Ibid., Titles I, II and III, respectively).
As a result of this federal policy, there has been a tremendous volume of
material produced for the Water Resources Council by federal and state
comprehensive and state water planning  efforts.3

     As previously stated, many states  have created separate planning and
development agencies to carry out planning and develop state water resources
(i.e., California Department of Water Resources, Colorado Water Conservation
Board, Utah Division of Water Resources) (Radosevich and  Skogerboe, 1978).
The result of this very complex and sophisticated arrangement of local,
state and federal organizations dealing with water for irrigation purposes
has made the task of adding a new element of control to a well-structured
system very difficult.  At the regional and local levels, a  main entity often
   3 For a thorough discussion of the Act, its history and accomplishments,
see Hart, 1972; Lieberman, 1972; The Nation's Water Resources, 1968;  and
History of the Implementation..., 1969.

                                     34

-------
operates the storage facility and distributes water directly or through a host
of subordinate organizations to users.


SUMMARY

     The period of individual development of water supplies, except from some
ground water areas, is now part of nostalgia.  Our rivers and streams have
become highly organized, and in most states, the waters from seasonal flows
are overappropriated.  The magnitude of water supply problems has crept up
the hierarchy from the intrastate concerns in local areas to subbasins and
have reached the interstate regions and basin levels.   In several instances,
the problems have even reached international dimensions.   The maturing from
small- to large-scale water planning and development has been a very import-
ant process in our history, which in itself partly explains the problems we
currently face in attempting to control the quality of irrigation return
flows.  In 1948, Charles Brannan, Secretary of Agriculture, noted that "if
irrigation is to contribute the fullest possible benefits, water supplies now
flowing unused to the sea must be developed.  Also, the wastage of water
through canal seepage and improper irrigation practices must be reduced...it
calls for more efficient conveyance of water to the land, and for use of this
water on productive lands by the best known methods of application" (Irri-
gated Agriculture In the West, 1948).

     But, irrigated agriculture has played and is still playing an extremely
important role in the development of the West.  Without the application of
water, these arid lands were usually worthless.  Hence, development depended
upon the availability of a water supply.  Where an adequate supply and cli-
matic conditions conducive to irrigated crop growth existed, settlements
grew.  The Federal Government, having adopted a policy of encouraging west-
ern growth in the late 19th century, contributed greatly to the rapid increase
of the agricultural sector.

     With agricultural development, there also followed population increases
with eventual urban, industrial and recreational encroachments which have
placed even greater constraints on the existing water supply, thereby
requiring a more conscious use of this valuable resource.  However, the
irrigation systems and agricultural communities have grown accustomed to an
untampered use of their water; storage and conveyance facilities, which have
been constructed and the associated costs repaid, are deemed sufficient for
the needs of the particular communities, despite conflicting demands for
other uses.

     It is worth noting, too, the special attitude toward water prevalent in
the western United States.  Water is regarded as a scarce resource and is
treated as such.  Innumerable disputes and differences over water have re-
sulted in a highly complex system of water rights based upon case law, inter-
state compacts, and legislation.  Central to this is the tradition of the
states to develop and control their own water and, hence, shape their
destinies as may be limited only by the availability of water.
                                     35

-------
     No attempt has been made,  of course,  in  the few preceding pages to pre-
sent a comprehensive history of water  resources development in the western
United States.  The cursory examination of some of the conditions of devel-
opment in the region was needed in order to reemphasize the point that water
in the arid West remains a central  point of concern and a sensitive issue,
reinforcing a widely shared conviction about  the need for control and coor-
dination and repeating the truism that "water and land in the West are
inseparable."
                                     36

-------
                                 SECTION 5

                        STATE WATER ALLOCATION  LAW
RISE OF A FEDERAL SYSTEM OF WATER LAW

     Water law in the United States is a "federal"  system with  a  delineation
of jurisdiction over water at the national  and state government levels.4
Federal water law is uniform and nationwide with regional  flexibility  in  the
implementing agency regulations.  But each  of the fifty states  adopted quant-
ity control  of surface and ground water laws with significant variations.
State water quality control laws are more uniform,  however,  and follow a
pattern set by federal legislation.

     To understand the rise of a federal system of laws for  allocating and
diverting water, it is again necessary to look at the land settlement  prac-
tices adopted when the country was founded.  Private landholdings in most
states can be traced to the public land system developed after  the Revolu-
tionary War (1775).  To form a union, the Thirteen Original  Colonies on the
eastern seaboard ceded their claims west of their boundaries to the national
government.   Subsequently, the national government encouraged settlement  and
reclamation of these lands through private  ownership by disposing of large
tracts at nominal prices.  Substantial acreages were also granted new  states
for:  1) settlement under private ownership; 2) revenue base through land
leases; and 3) dedication of parcels within towns and communities for  a common
school system (One Third..., 1970, p. ix).   One-third of the nation's  land
remains in public or federal ownership for  parks, forests, wildlife preserves,
and other uses in the public interest, with the remainder under private
ownership.5

     The initial federal water policy was directed to controlling navigable
waterways for commerce and defense, regulation of power facilities and flood
control.  Water was abundant in the East, so no involvement  beyond these
    ** This is in contrast to the "national" system of water law found in
Mexico, Spain, etc., in which the central  government has complete jurisdic-
tion over the resource and delegates authority to states or provinces for
limited control.

    5A11 states from North Dakota to Texas and east contain from 0-20 percent
of federal land; Colorado, Montana, New Mexico, and Washington contain 20-40
percent; Arizona, California, Oregon, and  Wyoming contain 40-60 percent;  Idaho
and Utah contain 60-80 percent; and Alaska and Nevada range from 80 percent
upward in federal land (One Third..., 1970, p. 23).

                                     37

-------
measures was needed.  Water quality was no problem, but if commerce was ad-
versely affected, the reserved powers were broad enough to exercise jurisdic-
tion.  With no guidelines or policies to follow or abide by,the eastern
states adopted the common law riparian doctrine of England as a policy for
controlling the waters of the states.

     To carry out the land settlement and development policy of the West, the
Federal Government enacted many laws which not only made land available for
private ownership, but recognized and granted water rights for these lands.
The  three most important acts are Mining Act of 1866, Land Act of 1870 and
the  Desert Land Act of 1877.  They acknowledged the validity of water rights
created by local customs, laws and court decisions, and declared all unappro-
priated water would remain subject to "appropriation and use of the public
for  irrigation, mining and manufacturing purposes subject to existing rights"
(Desert Land Act of 1877, 43 U.S.C., Sec. 321, 1964).

     The Federal Government's water resources policies have gone through
various stages, beginning with a general laissez faire attitude of federal
involvement supplemented by incentives for private development, to government
involvement in planning and development of medium- to large-scale projects and,
finally, to the present stage of national and regional management and devel-
opment influence through incentives or regulation.  States have gone through
a  similar policy metamorphosis, except their role has been more directly in-
volved in policy formulations pertaining to the allocation, real location and
distribution of waters within their borders.  Based upon the Federal Govern-
ment's recognition of local laws, the western states developed rules
according to their particular needs.  From this policy the doctrine of prior
appropriation evolved and the basic principles were adopted by nearly every
western state.
STATE WATER LAW SYSTEMS

     In  early American history, water—like air and open space—was considered
a common or free good with nearly unrestricted use due to minimal  demands on
existing supplies.  But as the effects of use were felt and conflicts arose,
the need for control along systematic lines was recognized.

     It  \s  commonly held that waters arising within a state's boundaries are
under the jurisdiction of the state, unless subject to powers reserved by
the Federal  Government.6  Consequently, as local customs developed and states
were formed, each state adopted its own particular system of water law.   At
first, surface water allocation and control was addressed, then gradually as
ground water was used, laws directed to its use were added to the  statutes.
    6 Recently, the U.S. Ninth Circuit Court held in U.S.  v.  Cal.  that state
water laws were superior to federal involvement except that such  laws could
not interfere with the construction and operation of federal  projects (9
E.R.C. 2062, 1977).

                                     38

-------
     Surface water laws developed  along two  distinct  philosophies which were
consistent with the geo-climatic  condition of the  state.   In  the humid east-
ern half of the country and along  the west coast,  the riparian doctrine was
adopted.  The more arid western half of the  country was  faced with an
immediate problem of deciding how to allocate a  scarce resource and thus was
compelled to develop a system of law peculiar to arid lands.  The result of
trial, error and compromise is the doctrine  of prior  appropriation.  Some
states have a varied water availability and  concluded by adopting a mixed
riparian/prior appropriation system.  Figure 3 identifies the general system
each state currently operates under.  Despite the  classification of state
systems into these three groups,  there is a  wide variation between states
following the same doctrine as to the manner for determining  water rights,
exercise of the right, water use efficiency  criteria, interpretation of bene-
ficial use, and system for obtaining water rights  and administering and en-
forcing the law.

     Ground water legislation occurred much  later  in  the states due in part
to the lack of knowledge of subsurface supplies  and in part to adequate sur-
face sources.  The basic principles for use  and  control  followed the surface
doctrines, but again each state adopted and  modified  the law  to fit its
perceived needs.  Four different systems of  control emerged.  Figure 4
identifies the doctrines and their adoption  by the states.

     These laws were developed to solve particular problems on a sectorial
basis, thereby leading to a lack of uniformity of  policy and  guidelines with-
in the state as well as among the states. For example,  traditional western
water law was designed first to insure the miners  of  a water  supply.  Shortly
thereafter, agriculture became the dominant  sectorial interest greatly influ-
encing the law's growth.  Without reshaping  the  contemporary  system of the
early 1900's, municipal and industrial users were  granted privileges and
rights under the law.

     The system of water law and administrative  mechanism of  these western
states can be classified as "use-oriented"—the  dominant objective being to
utilize the water to produce an economic gain, which  to  many  meant a liveli-
hood and to others a profitable venture.

     As a consequence of the erratic and sporadic  nature of the evolution of
western water laws, contradictions arose between the  surface  and ground water
doctrines and between the rights and privileges  designated for various uses
of water, thereby creating doubt and frequent hostility  among users and among
states sharing a common stream, lake or underground body of water.  The
following subsection discusses the important features of the  law of water
allocation and use in the western states. Table 1 provides a summary of the
law for each of these seventeen states.  For a further elaboration of each
state's water laws as summarized here, refer to  the state reports found in
Appendix A and the appropriate section of the report  outline  provided in
Section 1.
                                     39

-------
           Legend
         Appropriations

         Appropriations and
         Riparian Rights
                                        0     200    400
                                        Scale  of   Miles
Figure 3-   Surface water law systems  in  the  western states

-------
Appropriation
Correlative Rights
Common Law Riparian
Reasonable Use
    Figure k.  Ground water  law systems  in the western states,
                                ••;

-------
                                                                 TABLE 1:  A SUMMARY OF WESTERN WATER LAW

State Xj?
1-ARIZ
2-CAL

3-COLO



4- IDA

5-KAN

6-MONT

7-NEB

8-NEV








1
WATER LAW
Surface
Water
P.A.
P.A.SR.

P.A.



P.A.

P. A. 6
R.1
P.A.

P. A. s
R.1
P.A.

2
DOCTRINES
Ground
Water
R.U.2
C.R.

P.A.



P.A.

P.A,

P.A.

R.U.2

P.A.

P. A. -Prior
Appropriation
R«Riparian
A. 0. "Absolute
Ownership
R.U. "Reasonable
Use
C.R. -Corrective
Rights
IA1 1 new water
by P.A.
2 Lack compre-

ground water
taws.

3
Ownership
Public
People

Public



State

People

State

Publ ic

Public








4
^Evidence
of Water
Right
Permit
Permitd

S.W.-
decree
G.W.-
jaermi t
License

Permit

Permit

Permit

Permit

Dif-
ferent
types
for
rights,
r i pa r i a
rights
pe rco 1 a
tion
ground
water.




5
Basis of
Al location
B.U.
B.& R.U.

B.U.



B.U.

B.U.

B.U.

B.U.

B.U.

B,U, -Ben-
eficial us
B,6 R.U.-
Beneficial
6 Reason-
able Use
n
5





6
Criteria
of
Al location
B.U.
B.S R.U.

B.U.



Icfs/
50 a.
1 to 2
a.'/a.
1 miners "
/a.
1 cfs/70a.
or 3 a'/a.
Condi ttons
& Needs
e,






7
Preference
of Use
(Order)
1-2-3-4-5
1-2 —

1-2 over 5



1-2"

1-2-5-6-3

None

1-2 over 5

None

'Domestic
£ Munic-
ipal
ZAgricul-
tural
(irriga-
tion)
3 Power
''Mining
8
Date of
Priori ty
D.O.A.
D.O.A.
post 1914
S.W.-
1st step
G.W.-
D.O.A.
D.O.A.

D.O.A.

D.O.A.

D.O.A.

D.O.A.

D.O.A,-
Date of
applica-
tion
D.B.U.=
Date of
benefic-
ial use
5Mfg.&
Industrial
6 Recreation
7 Navigation
4 In mining
districts,
4 over 2
6 5


9
Appurtency
Strict
Unlimited

None



Unl imi ted









Strict"
can
transfer
but cri-
teria
estab-
lished
Limited"
water
right for
spec! fie
parcel ,
but
transfer-
able

10
Water
Rights
Registry
Original
Current

Original
(compu-
terized)

Current
(Limited


Original
(Limited


Original

Original"
Initial
f i 1 i ng
recorded
Current=
User must
not i f y
agency o
name, use
place, et
transfers
unl Imi tec




11
Water
0_ual i ty
In Rights
Case
Case +
Statute
Case



Case

Case +
Statute
:ase

Case

Case



c. ,




12
Forfeiture
of Rights 5
5 yrs
5yrs < 1914
3 yrs > 1914
l.b



5 yrs

3 yrs

.-6

3 yrs

5 yrs

5A11 states
recognize
loss by
abandon-
ment
610 yrs is
evidence o1
abandonment





13
Drainage
Rules
C.E.&
C.L. ^
Yes

C.L.
(mod i -
fled)

C.L.

C.L.

C.E.

C.E.

C.L.

C.E.=
Common
enemy
C.L."
Civil Law
R.D."
Reasonabl
discharge
flood
waters
C.L.=
natural
flows


14
Basin
of
Orig in



Yes









Yes




e





4=-
Ni

-------
TABLE 1 (continued): A SUMMARY OF WESTERN WATER LAW.
^
9-N.M.


10-N.D.

11-OKLA

12-ORE

13-S.D.


14-TEX

15-UTAH

16-WASH



1 7-WYO










1
Z
WATER LAW DOCTRINES
Surface
Water
P. A.


P. A.

P. A. 6
R.1
P.A.S
R.1
P.A.S
R.

P,A,6
R.1
P. A.

P.A.S
R,1


P. A.

Ground
Water
P. A.


P. A,

P. A.

P. A.

P. A.


A,0,

P,A.

P. A.



P,A.

P.A,=Prior
Appropriation
R.ttRiparian
A,U.=Ahsolute
Ownership
R,U,= Reason-
able Use
C.R.=Corrective
Rights
Al 1 new water
by P,A.
Lack corap re-
hens i ve
ground water
1 aws .


3
Ownership
Public


Public

—

Public

People


State

Puhl ic

Publ ic



State










it
Evidence
of Water
Riqht
Permit


Pe rm 1 1

Permit3

Permit

License


Permit3

Permit

Permit



Permit

Dif-
ferent
types
aNot fo
1914
rights,
riparia
rights
percola
tion
ground





5
Basis of
Al location
B.U.


B.U.

B.U,

B.U.

B.U.


B,U.

a,u.

B.U,



B.U.

B.U.=Ben-
6
Criteria
of
Al location
B.U. 6
good agr.
practices
1 cfs/
80 a.
B.U.

B.U.

1 cfs/
70 a. or
3 a.'/a.
B.U.

Nature
of Use
Reasonably
Necessary
f, B.U.

1 cfs/
70 a.

eficial use.
B.& R.U.=
rBenef i ci al
reasonable
n
&





6
use.





7
Preference
of Use
(Order)
None


1-2 £
5-6
None

1-2-i,—

1 —


1-5-2-4-
V7-6
1-2

None



1-5

Domestic
£ Muni-
cipal
^Agricul-
tural
(Irrig-
ation)
3 Power
^Mini ng
5 Mfg. £
Industria
° Recreatio
8
Date of
Priority
D.O.A,


D.B.U.

D.O.A.

D.O.A.

D.O.A.


D.B.U.

D.O.A.

D.B.U. &
D.O.A.
for
perm! ts
D.O.A.

D.O.A.-
Date of
appl i ca-
tion.
D.B.U.=
Date of
benefi-
cial use.
1
n
7Navigat ion

14 In mi n i nc
districts ,
4 over 2
& 5.



9
Appurtency





Strict

Strict












Strict

Strict"
can trans-
fer but
cri teria
estab-
1 ished.
Lirni ted=
Water
right for
speci fie
parcel ,
but
t ransfer-




10
Water
Rights
Registry
Original




Current

Original

Original


Current

Current

Current
(Compu-
terized)

Original

Original'
11
Water
Qual I ty
In Rights
Case


Case

Case

Case

Case


Case

Case

Case



Case


Initial
f i 1 i ng recorded
recorded.
Current=
User must
not ify
agency of
name, use,
place, etc. ,
transfers
unl imi tec




1.




12
Forfeiture
of Rights5
4 yrs + 1
yr after
notice
3 yrs

7 yrs

5 yrs

3 yrs


10 yrs

5 yrs

5 yrs



5 yrs

5A11 states
recogni ze
loss by
abandon-
ment.
610 yrs is
evidence
of abandon-
ment.





13
Drainage
Rules
C.L.


R.D.

R.D.

C.L.

C.L.


C.L.

C.E.

C.E.



Undecided

C.E.=
Common
enemy.
C.L.=
Civil Law,
R.D.=
Reasonable
Di scharge
7C.E.=
flood
waters ;

natural
f 1 OW5 .


14
Basin
of
Origin





Yes






Yes



















-------
SURFACE WATER LAWS

     As previously stated, the seventeen western states have adopted  one  or
both of the basic water law systems found in the United States.   The  system
adopted by every western state is the doctrine of prior appropriation,  with
those states on the western seaboard and from North Dakota to Texas also
employing the riparian doctrine to lands adjacent to watercourses.  There is
a definite trend to eliminate the riparian doctrine as demand on surface
water increases.  For all practical purposes, most of the states with both
doctrines have relegated the riparian system of surface water control to  an
insignificant role.  However, a brief explanation of the doctrine's salient
points will enable the reader to recognize the attitudes and drawbacks  in
efforts to control the quality of irrigation return flows.

Riparian Doctrine

Two  Rules—
     The water laws of the humid states were patterned after the early  common
law  of England.  Under English law, every landholder whose property was
adjacent to a stream or body of water was entitled to have the water  flow
past his land (or maintain a natural lake level) undiminished in quantity or
quality.  This rule is generally called the natural flow theory.

     In a water-abundant area with little withdrawal needs, this rule may be
satisfactory.  But, even in the humid parts of the United States, conflicts
developed as emerging industries, municipalities, and agriculture began
diverting water.  To resolve the problem, the American Rule of Reasonable Use
came into being.  Under this rule, riparian landowners can divert a reasonable
amount of water with respect to all other riparians on the stream,  and  non-
riparian lands may, under certain conditions, make a reasonable use of  the
available waters.

Nature of the Riparian Water Right--
     Waters in states following the riparian doctrines are a public resource,
held in trust for use by the people of the state.  Thus, a landowner  whose
land borders a stream does not have an ownership right to the waters  of the
stream, but rather has a fundamental right by virtue of his land location to
a reasonable use of the water and to be free from unreasonable uses of  others
that cause him harm (Rancho Santa Margarita v. Vail, 11 Cal. 2d 501,  81 p.2d
533, 1*938).  He is essentially a correlative co-user with all other riparians
on the water source and as between riparian uses, priority of use does  not
establish priority of right in times of decreased flows (Pabst v. Finland,
192  Cal. 124, 211 P.11, 1922).  Consequently, his right to the use of water
is not a right for a fixed quantity of flow or volume,but rather is depend-
ent  largely upon the extent of development that has taken place.

Manner of Allocation--
     Fundamental to the riparian law is the location of land on a water
source.  Although this requirement has been relaxed in many eastern states to
permit use of water on nonriparian lands—as between riparians and.nonriparians
—water will first be allocated to the riparian landowner.  Among the western
states, California remains the one state in which the riparian right  doctrine

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has major significance.  In California, a riparian right can  only  be  estab-
lished upon riparian land.   And, if a portion of the land to  which a  riparian
right attached is severed from the original  parcel, and itself does not  have
access to the watercourse or the riparian right is not specifically reserved
for the portion, then the right is lost and  cannot be restored.

     More important to the allocation of water under this doctrine is the
requirement of reasonableness in use, since  the right does not consist of a
definite quantity or quality of water.  A definition of reasonableness that
is often cited for its completeness states:

     In determining what is a reasonable use, regard must be  had to
     the subject matter of the use; the occasion and manner of its
     application; the object, extent, necessity, and duration of the
     use; the nature and size of the stream; the kind of business  to
     which it is subservient; the importance and necessity of the
     use claimed by one party; the extent of the injury to the other
     party; the state of improvement of the  country in regard to
     mills and machinery, and the use of water as a propelling power;
     the general and established usages of the country in similar
     cases; and all the other and ever-varying circumstances  of each
     particular case, bearing upon the question of the fitness and
     propriety of the use of the water under consideration.

     ...each use is required to be beneficial, suitable to the water-
     course and of economic and social value.  If these requirements
     are met, reasonableness may require each riparian to put up with
     minor inconveniences and to adjust to quantity of water  used.
     (If conflict occurs, a solution involves consideration)  of whether
     the first user's investment and other values are entitled to
     protection and whether the new user ought to compensate  the
     former user for the loss of that which  the latter gained.  In
     most of the cases in which the plaintiff has suffered substan-
     tial harm through his  water supply for  a reasonable use  being
     taken, the decision has been that the taking is unreasonable...
     (Restatement of Torts. 2nd, Ch. 41, Topic 3, "Scope Note,"
     Tentative Draft No. 17, 74-76, 1971).

     In essence, the reasonable use requirement limits the use of  water  to
that quantity reasonably required for a beneficial  use and prohibits  waste or
unreasonable use, or unmeasurable methods of use, or diversions (Const,  of
Cal., Art XIV, Sec. 3).

     Other rules on allocation and exercise  of riparian rights  include restric-
tions against transfer of riparian rights to nonriparian lands, water cannot
be stored for later use under a riparian right (Moore v.  California-Oregon
Power Co., 22 Cal.  2d 725,  140 P.2d 798, 1943), nor can foreign waters be
claimed under a riparian right (Crane v. Stevinson, 5 Cal.  2d 387,  54 P.2d
1100, 1936).  As a  general  rule, riparian rights can only be  used  within the
watershed.
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     As concluded by Davis in his study of riparian law for the National  Water
Commission, the law "presents a process for reaching allocative decisions but
does not offer clear principles for allocation" (Davis, 1971).

Preference of User—
     Under either the natural flow or reasonable use theory, there is a
preference for the "natural wants" over all other uses.  The "natural wants"
include household and limited livestock needs and have generally placed dom-
estic-called uses in a preferred position.  As between other uses—agricul-
tural, industrial, recreational, etc.--there is no clear preference but rather
the courts have looked upon the reasonableness of use to determine conflicts
between these uses.

Nonuse and Misuse of Rights--
     Riparian water law does not require a landowner to use the water in  order
to maintain the right in good standing.  Unless the right to use water from an
adjacent water source has been sold or transferred to other lands or uses, the
right will continue as long as the land and water are continuous.  Abandonment
of water right is nonexistent under riparian law.   There is a possibility,
however, that a riparian who does not object to the open and notorious use by
another, through prescription, may have his right reduced or lost.  Misuse of
the right may result in a restriction on use and/or judgment for damages  to
those adversely affected.  Parties injured through the misuse must assert
their claim in court.

Statutory Modifications--
     There have been a number of significant recent changes in the water  law
of the riparian states, primarily brought about by the inability of existing
water supplies to meet the expanding demands on one side, and a recognition
of public interest in water resources on the other.  The changes can be sum-
marized into two major components:  1) establishment of a permit system to
allocate water among certain users; and 2) creation of administrative
machinery to assess water supplies and requirements and to allocate and
manage the states' water resources through the permit system.

     The most creative aspect of the permit system in riparian states is  the
limitation on the duration of the right to use.  For example, the State of
Iowa grants a ten-year permit, renewable upon a showing of continued bene-
ficial use, and without any temporal priority between permit holder (I.C.A.,
Ch. 4E*5A, 1968 Supp.), and New Jersey grants a permit long enough to allow
amortization of capital investments, but not over 25 years (N.J.S.A., Sec.
58:1-44).

     The advantages of the permit system are numerous, but generally it
allows conditions of use to be stipulated in the permit and provides the  state
water agency a data base on where, to whom, what for, and what quantity water
is allocated.  Other changes include forfeiture provisions for nonuse (three
years is common), minimum flow requirements for fish, wildlife and recreation,
and greater flexibility and certainty in acquiring right to use water.

     Among the western states, the modifications to the original doctrine are
strongly influenced by the simultaneous application of the doctrine of prior

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appropriation, increased demands on surface supplies for in-basin  as  well as
out-of-basin use stimulated in part by large-scale reclamation  projects,  heavy
reliance upon ground waters in some states (i.e.,  California, Nebraska,
Oklahoma, and Texas).  In all of the dual-doctrine states except California,
all new claims to the use of surface waters must comply with the statutory
requirements of the prior appropriation doctrine.   In Texas, all surface
water rights are now required to be filed, approved and administered  by the
Texas Water Rights Commission.  Prior to 1967, riparian rights  could  be main-
tained by virtue of land location adjacent to a body of water,  without notice
of claim by posting or filing such claim with the state agency.  In  1967, the
Water Rights Adjudication Act was adopted which requires all riparian right
claimants to file their claim with the Texas Water Rights Commission, or
the right would be extinguished (T.C.A., Sec. 5.301 to 5.341).   If the
Commission desires, it may also adjudicate these claims.

     Similarly, in Washington, under the 1969 Water Right Claims Act, riparian
and pre-1917 appropriation water right claimants must file a statement of
their claims in order to protect their interests against relinquishment of
right, title or interest in such rights (W.R.C., Sec. 90.14.071).   In Cali-
fornia, if a suit involving the determination of water rights is brought  in
the superior court, the court can refer the case to the State Water  Resources
Control Board for a determination of all water rights in the stream  system
(C.W.C., Sec. 2000 and 2001; C.W.C. Sec. 2500 to 2900 sets out  the procedure).

Regarding Irrigation Return Flow--
     The riparian doctrine has as an inherent component the requirement that
a riparian user make a reasonable use of the water and his right shall not be
impaired in quantity or quality by the unreasonable use of another riparian.
Thus, in theory, if the upstream riparian's return flows were degrading the
quality of the water used by a downstream riparian, the latter  has a  basis for
judicial redress.  It must be pointed out that under the riparian  system, an
administrative structure for allocation and regulation of water does  not  exist
(except in those western states where riparian claimants are required to  file
their claim or obtain a permit) and, thus, the injured party must  rely upon
the courts through a private lawsuit.

Doctrine of Prior Appropriation

Origin and Principles--
     The appropriation doctrine is a water allocation system which was devel-
oped in response to the geographic characteristics found in most of  the west-
ern United States.  Though there were some small agricultural experiments
during the era when this land was being opened to settlement, the first major
users of water were the legendary gold and silver miners.  Some experts of
early western water law maintain that it was these individuals  who adopted
the principles on which this doctrine is based from their practices  and
rules of conduct (Trelease, 1971, p. 22).

     It was obvious to these people that the riparian water law under which
they had lived in the water-wealthy eastern United States would not  provide
a workable system in the arid western region.  However, they were  not learned
in the law and were forced to find a solution to their problem.  In  response,

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they applied the same principle to the use of water as they did to staking
mining claims.  The person who first discovered a mine was protected against
all later  claimants.  For the use of water, this was translated into the doc-
trine of prior appropriation, or "first in time is first in right," i.e., the
first person to use water acquires the right to its future use as against
later claimants (Carlson, 1974, p. 530).7  The evolution of this doctrine was
a fortunate event for it proved equally useful for agriculture.  As mining be-
came more  competitive, many miners and newcomers to the area began farming.
The doctrine protected the first settler to use water on his land.  Later
settlers had to respect the prior ownership of land and the amount of water
which the  prior settler was using.

     The history of adoption and changes of the prior appropriation doctrine
over the past  100 years is a fascinating study of social conflict and problem
solving.   It is, however, beyond the scope of this report.  Briefly, the doc-
trine was  recognized first by courts in some states, followed by constitutional
provisions and/or legislative enactments.  Often cases followed the legislative
actions to uphold the constitutionality and exclusiveness of this doctrine of
water use  and  control.  Most of the early activity in adopting the doctrine
occurred from  the mid-1800's to the turn of the century.  For an historical
background of  the seventeen western states, see Clark, Volume 1 (1967),
Kinney  (1912), Thomas (1920), and Mead (1903).

     The system that emerged was simple and direct.  Although there are many
variations between the appropriation doctrine states, a number of key princi-
ples exist to  establish commonality, if not relative uniformity, among the
states.  These principles are:

     1.  There had to be a diversion from a natural stream or body of water.
     This  has  been relaxed in most western states during the last decade to
     allow in-stream use for recreation, fish and wildlife protection.

     2.  The water must be applied to a beneficial use.  Initially, this was
     defined in constitutions and/or statutes to be domestic, municipal,
     stock watering, irrigation, and certain industrial and power uses.  Some
     state laws, like Wyoming, reflect the economic influence of one sector
     over  another (i.e., the railroad uses were preferred to agricultural
     uses).  In most of the western states, however, the rural representation
     insured agriculture a high position as a beneficial user.

     3.  When  these two acts were completed, a water right was created.  This
     right entitled the holder to continued use so long as the use was
     beneficial.

     4.  Every water right acquires a priority date such that priority of
     right and not equality of right is the basis for distributing water.
    7 The first decision in American courts which recognized this doctrine was
Irwin v. Phillips, 5 Cal. 140, 1855.  The California Supreme Court cited no
precedents in its decision for there were none.  The developing common law
had received a new addition.

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The Water Right—
     The entire system of prior appropriation is based upon and evolves around
the allocation of water under the concept of the water right.   Simply  put,
this doctrine creates the right of private use of a public resource  under
certain conditions,  which use has been declared to be a public use.  The
right does not automatically exist by virtue of the presence of water  upon,
flowing through, or under land.  In all western states, these waters (some
exceptions) are declared to be the property of the public, people, or  state
(see Table 1, Column 3).  Regardless of whether the state or the public
(people) own the water, the courts have held the state as a trustee  to the
public for the proper allocation and distribution of water and granting and
protecting the right to use the water so allocated.  Wyoming law states, for
example:

     A water right is a right to use the water of the state, when
     such use has been acquired by the beneficial application of
     water under the laws of the state relating thereto, and in
     conformity with the rules and regulations dependent thereon
     (W.S.A., Sec. 41-2).

In Colorado, the Supreme Court very early in the state's history announced a
rule that can be found in every statutory or judicial law of the other appro-
priation doctrine states.  The famous Coffin v. Lefthand Ditch Co.   was
decided in 1882 and held:

     ...water in the various streams thus acquires a value unknown
     in moister climates.  Instead of being a mere incident in the
     soil, it rises when appropriated to the dignity of a distinct
     usufructuary estate or right of property...the right to prop-
     erty in this country by priority of appropriation thereto, we
     think it is and has always been the duty of the national and
     state governments to protect (6 Colo. 443).

     The right  so acquired has two legal characteristics.  First, the  right
itself  is a real property right.  It is an exclusive right, which like other
property interests can be defined, is valuable and can be sold, transferred,
mortgaged, or bequeathed.  But the right differs from the right that attaches
to land or chattels, for it is only a right to use the resource. Thus,  it  is
called  a usufructuary right (see Coffin case above and O.S.A. 82, Sec. 105.2
as examples of  judicial and legislative holdings).

     The second characteristic is that since it is only a usufructuary right
and  can only be exercised when the water authorized for diversion under  the
right is available and can be put to beneficial use, there is no absolute
ownership  in the corpus of the water prior to diversion.  This water is  still
a public resource, and  if the right holder cannot put it to beneficial use,
he must allow it to  flow past his point of diversion to other appropriations.
However, if  he  can appropriately use the water, that water which is  diverted
into his delivery system is his personal property until it returns  back  to
the  stream or escapes  his control.
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     The water right under the appropriation doctrine consists of several
defining elements that give it value, dependability and security to the
holder.  The right:

     - exists to a definite source of supply, e.g., specific river, lake,
       or ground water aquifer;

     - is for a fixed and stated maximum quantity divertable;

     - has a definite point of diversion to which conditions are to be
       maintained as of the time the appropriation took place;

     - specifies the type of use for the diverted water;

     - identifies the place of use (for application in the case of irrigation);

     - implies the annual time of use based upon type and place of use; and

     - assures the holder of at least an implied protection to the mainte-
       nance of water quality necessary to carry out the purposes for which
       the water was appropriated.

     As  previously stated, one of the key principles to the prior appropriation
doctrine is the "priority of right" that is granted a user over subsequent
appropriation.  It is most often the priority date, dependability of flow  in
stream and location of point of diversion that give a water its value.  In
most states, the priority date is the date the application for a water right
is  received by the state agency.  Generally, an application must be filed
with pertinent information relative to the user, use and source of supply.
If  the application is approved, the water right will normally have the prior-
ity of  the date of application (Table 1, Column 8).  If the use requires
construction of diversion, storage and delivery works over a period of years,
the right, if the application is approved and notice to proceed given, will
still retain the date of application when the water actually is put to use,
through  operation of the "doctrine of relation back."  If, however, the
applicant does not construct the works within the time period acceptable to
both parties, and the delay is unexcusable, the right may have a priority
beginning on the date the water is put to use.

     Several systems were developed by the states to allocate water and pro-
vide evidence of water rights, including posting a notice at the point of
diversion and filing a record with the county clerk.  The predominant approach
now is the permit system (Table 1, Column 4).  An application is filed with
the appropriate state agency who then takes the procedural steps of evaluat-
ing and determining its disposition.  If approved, a permit is issued which
may contain conditions of use.  If denied, the applicant may appeal the
administrative decision to the court.  In some cases, the finalized water
right may be called a license or certificate.

     A few states have different classes of permits which greatly enhance
their ability to allocate and regulate the use of water among competing
interests.   In Texas, there are eight classes of permits:

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     -  regular permit--year-round  perpetual  right;

     -  seasonal  permit—portion  of calendar  year  (irrigation season and
       perpetual);

     -  temporary permit—short-lived  specific  use, no longer than 3 years;

     -  term permit—fixed  number of years  and  expires;

     -  contractual  permit—authorizes an appropriator to contract the use of
       his water to another for  a  term;

     -  permit under Section 5.141—authorizes  impoundment on nonnavigable
       stream or permittees'  own property  of less than  200 acre-feet and use
       for any specified purpose;

     -  storage permit—storage of  water for  project;

     -  emergency permit—allows  emergency  appropriation for not more than
       30 days for  public  health,  safety and welfare  (T.W.R.C. Rule 129.02.
       05.001-.008).

     Oklahoma has two broad categories of  permanent and nonpermanent permits.
The former is subdivided into regular and  seasonal, while the latter is
divided into temporary and term  (O.W.R.B., Rule 350).   All states grant direct
flow and storage permits.   Colorado is the only state that does not have pub-
lic representation  in the  water  right allocation  process.  Water rights
applications are submitted to the  appropriate  Water Court (one water court in
each of the seven water divisions).  Through a statutorily defined process,
the Court and its referee act upon the application by giving notice through
newspaper publication to water users  in the  area  and  holding hearings so pro-
tests to the application can be  heard.  If the application is acceptable, the
Water Court will issue a decree  as evidence  of the water right.  A conditional
decree may be issued if the work to complete the  diversion and put the water
to beneficial use is to take place over a  period  of time.

     One of the frustrating problems  to water  administrators and planners and
often costly to water users under  the current  high demand for water and in-
crease in sales and transfer is  the recordation of water rights.  The major-
ity of states have  a registry of the  original  issued water rights (Table 1,
Column 10), which identifies the original  appropriation, point of diversion,
source of supply, amount divertable in continuous flow, or total volume terms,
and type and place  of use.  In all states, any change or transfer in place or
type of use and point of diversion must  be approved by  the state agency.  This
is primarily to protect other appropriators  who may be  adversely affected by
the transfer if conditions of the  stream and return flow are not accounted
for.  But, few states actually maintain a  current registry of water rights
that reflect current ownership.  These states  have either a water rights
recording or registry requirement  in  their statutes, or adopted regulations
requiring notice to the agency of all  ownership changes.  Oklahoma and Texas
have a computer card type report form that right  holders must submit annually
with pertinent data concerning ownership,  amount  of water diverted, and what

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uses were made of the resource.   In some cases,  failure to notify the state
agency of ownership and other changes is prima facie  evidence of nonuse and
could lead to forfeiture or abandonment.  The burden  of notice is usually
placed upon the current owner.  Even in many of  these states, however,  the
current listing is not complete.

     In the past, the purely engineering concerns  of  source,  diversion  point
and type of use may have been sufficient to  distribute water, that is,  water
could only be diverted out of a  fixed and definite headgate.   But, with prob-
lems of increased demand on the  available supplies and the present need to
resolve such water quality problems as those stemming from irrigation return
flows, greater efficiencies in use must be achieved.   This can and, in  many
cases, is being brought about by:   1) transfer of  right to use water to
higher value uses; 2) some voluntary action  by water  users to improve the
diversion and delivery structures  and locations; and  3) tighter administra-
tion of the conditions of water  use granted  a water right  holder under  the
law.  To effectively administer  these laws (beneficial  use and nonwaste
provisions), carry out water planning and development,  and even take full
advantage of transfer characteristics inherent in  the property right in
water, accurate records of current ownership and use  are required.

Basis and Criteria of Allocation and Use

Beneficial Use—
     The cornerstone of water allocation under western water  law as it  has
evolved is that beneficial use is  the basis  and measure of the right to use
water.  This is often the extent of definition found  in the majority of west-
ern states water law (e.g., A.R.S., Sec. 45-101; N.R.S., Sec. 533.035;
S.D.L., Sec. 46-1-8; W.S.A., Sec.  41-2).  Thus,  in order to use water,  it must
be taken for a beneficial purpose.  This has evolved  into  the position  that
not only must water be used for  a  beneficial purpose, but  beneficial  use is
the limit of the right (Farmers  Highline Canal and Reservoir  Co.  v. Golden,
129 Colo. 575, 272 P.2d 629, 1954)T  Usually the term "beneficial  use"  is not
defined per se, but is decided on  a case-by-case method.   It  has two aspects,
referred to above, that complicate the concept even more.   Water is allocated
to a beneficial use, so for that reason many statutory provisions list  types
of uses recognized as being beneficial.  Among the uses recognized as bene-
ficial are:  irrigation, domestic, power production,  municipal, industrial,
recreation, and minimum flows for  aquatic life.  This short list is not meant
to be comprehensive, but rather  only to illustrate the spectrum recognized.
See Section 2.4 in the state reports for each state's position on recognized
beneficial uses.

     The other aspect is that the  use of the water itself  must be beneficial
and carried out in a beneficial  manner.  On  this point, several states  have
elaborated the definition to apply directly  to the administration of the
laws.  In California, the use of water is subject  to  the constitutional
requirements that such use:

     ...shall  be limited to such water as shall  be reasonably required
     for the beneficial use to be  served, and such right does not and
     shall  not extend to the waste, or unreasonable use or unreasonable
     diversion, of water (Cal. Const. Art. X, Sec. 2).

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     Texas applies this broad but more defined approach to  beneficial  use
also.  It requires that no more water be allocated and used than  that  amount
"economically necessary for the purpose authorized when reasonable  intelli-
gence and reasonable diligence are used in applying that water  to that
purpose" (T.C.A., Sec.  5.002).

     New Mexico law directs itself to irrigation specifically by  placing a
limitation on all rights by instructing the State Engineer  not  to allow the
diversion of more water for irrigation than can be used consistent  with good
agricultural practices to produce the most effective use of water (N.M.,
Sec. 75-5-17).

     Washington similarly addresses the use of water by agriculture.   Its
laws provide that an appropriator will be provided that quantity  of water
reasonably necessary to irrigate his land, but this irrigation  is to be
accomplished by the most economical method of artificial irrigation according
to the methods employed in the vicinity where the land is situated  (R.C.W.,
Sec. 90.03.040).  The most economical method is to be determined  by the
court.

     The concept of reasonableness is playing an increasingly more  important
role in appropriation states.  For example, it may no longer be reasonable to
irrigate a crop by flooding when another method, readily available, will
produce crops as well or better and simultaneously save some of the water.
Thus, even though the use—irrigation—is beneficial, the method  of appli-
cation is not reasonable.

Duty of Water—
     In addition to the requirement that water will be allocated  to a  user for
a beneficial use, most states have adopted criteria to be followed  in  allo-
cating water to agriculture.  This criterion is commonly referred to as the
statutory duty of water.  To quote from the Supreme Court of Colorado:

     It is 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  ade-
     quate to produce therefrom a maximum amount of such crops  as
     ordinarily are grown thereon (Farmers Hiqhline Canal and
     Reservoir Co. v. Golden, 129 Colo. 575 at 584, 270 p.2d 629,
     1954).

     The majority of states incorporate this into their determination  of the
amount to be granted the water right applicant.  But several states have
quantified the duty.  Little uniformity exists, indicating  the  different
conditions found in the states.  Idaho, Wyoming and North Dakota  allow 1 cubic
foot per second  (cfs) per 50, 70 and 80 acres, respectively. South Dakota
and Nebraska also allow 1 cfs per 70 acres, but no more than 3  acre-feet per
acre.  Montana allows 1 miners inch per acre and Kansas varies  between 1 to
2 acre-feet per acre, depending upon the circumstances (Table 1,  Column 6).

     Provisions  in Nevada are particularly important to the subject of this
report.  In Nevada, the State Engineer is to consider the duties  of water

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established by court decrees or by experimentation in the area  where the water
is to be used (N.R.S., Sec. 533.070).   He is also instructed  to consider the
growing season, type of culture, and reasonable transportation  losses.   This
flexibility allows the State Engineer to be precise in allocating water.

Waste—
     The corollary to beneficial use of water is the duty not to commit waste
of water.  This requirement is expressed by statute or court  decision in all
the western states.  However, it is difficult to define what  constitutes ben-
eficial except on a case-by-case approach, and it is equally  difficult to
state categorically what constitutes waste.  In the analysis  of case law by
Hutchins, Elles and DeBraal, they note that an appropriator need not take
extraordinary precautions to prevent waste if it is a reasonable use of the
water according to the customs of the community (citing Joerger v. Pacific
Gas and Electric Co.. 207 Cal. 8, 273 P. 1017, 1929), so long  as the custom
does not involve unnecessary waste of water (Hutchins, Vol. 1,  1971, p. 498).

     Many states have statutory provisions like that found in Arizona (A.R.S.
Sec. 45-109) and Nevada (N.R.S., Sec.  533, 460), which prohibit waste and
charge the party so committing waste to the detriment of another to be guilty
of a misdemeanor.

Preferences and Priority to Use

     These are two concepts in the appropriation doctrine that  are often
intermingled and confused in use of the terms.  Priority of right has been
described above as the date of a right that distinguished it  from all other
rights for purposes of distribution of available water supplies in the source
from which the appropriation is attached.   This enables the senior right hold-
er to demand and receive his allocation at the time the senior  places a call
for his water before the junior is entitled to exercise his.  During low
flows or scarcity, diversions are shut off in inverse order.  Hence, the
value of an early water right becomes apparent.

     Preferences, however, do not address a date of appropriation, but rather
the type of use that receives preferential treatment by laws.  In many states,
certain types of uses are placed in an order establishing their preferred
position.  See Column 7, Table 1, for a listing of priority as  found in each
state's constitution or statutory provision.

     Establishing an order of preferred status for various types of uses has
two primary purposes.  The first purpose occurs during the allocation of a
limited supply of unappropriated water between two or more applicants for
different uses submitting their applications at the same time  (date of appli-
cation).  If the applications are received at different dates,  this may gov-
ern the allocation of the unappropriated water, where there is  not enough to
meet the needs of all applicants.  But, if the applications are reviewed at
the same time, the allocating agency can use the preference criteria to
grant the needs first to the highest preferred use applying,  and so on until
all  appropriated water is allocated, providing the applicants meet the other
requirements for a water right.


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     The second aspect of the preference system is that during periods  of
scarcity, the preferred use has a right to condemn the water right of non-
preferred use.  In all states but Texas, compensation must be paid.   Texas
has no "absolute preference" system which provides municipalities  with  the
right to take water without compensation, but as a rule compensation  is
usually paid when water rights are condemned.


GROUND WATER LAWS

Introduction

     Ground water resources are beginning to play a major role in  agricul-
tural, municipal and industrial water use.  Approximately one-fifth of the
water withdrawn in the United States comes from this source.  Nearly  one-third
of the nation overlies ground water from which a well capable of producing  at
least 50 gallons per minute could be installed.  Due to decreasing costs  in
ground water removal as technology advances relative to alternative surface
supplies, and the reduction of loss plus more precise control over timing of
delivery and volume discharged, this resource is increasingly being called
upon to meet large-scale needs for agriculture and such uses as oil  shale
processing and coal slurry pipelines in the western states.

     Laws controlling the extraction and use of ground water have  become as
complex as surface water doctrines.  Basically, however, the states apply one
of four doctrines—absolute ownership, reasonable use, prior appropriation,
or correlative rights (see Corker, 1971).  Column 2 of Table 1 identifies
the doctrines adopted by each state.  A thorough treatment of ground  water
laws up to 1970 can be found in Hutchins (1974).  Chalmers (1974)  focuses
specifically upon the seven southwestern states, with a description of  the
statutory and case law as well as the ground water locations and uses.

Absolute Ownership

     The doctrine of absolute ownership had its origin in the United  Kingdom
with the 1843 decision of Acton v. Blundell (152 Eng. Rep. 1223.1843).
Simply stated, the doctrine holds that a landowner can withdraw any water
from beneath his land without liability to his neighbors resulting from such
action.

     This doctrine was originally adopted in a great number of eastern  states
where water was abundant.  It still is in operation in many states,  but the
adverse effects of ground water mining, land subsidence and adjacent  landowner
claims of water stealing are putting pressures upon several  states to change
this law.

     Among the western states, only Texas has retained this rule.   In Texas,
the rule applies only to percolating waters and to subterranean streams or
tributary stream underflows.  But the presumption is that all ground  water  is
percolating, thus allowing a landowner to take and use or sell  all  the  water
he can capture from beneath his land (Texas Water Plan, 1968).   In areas
where a defined aquifer exists, landowners can organize into a ground water

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conservation district and establish location, depth, discharge, and use
rules  (T.C.A., Sec. 7880).

Reasonable Use

     Due to the  extreme position of ground water use without liability as pro-
claimed under the  absolute ownership doctrine, many states began modifying
the  laws into what has become known as the "American Rule of Reasonable Use."
This change is synonymous to the modifications in the surface riparian doc-
trine.  The rule of this doctrine is:  since the rights of adjacent land-
owners are similar and their enjoyment in the use of ground waters is
dependent upon the action of other overlying landowners, each landowner is
restricted to a  reasonable exercise of his own rights and reasonable use  of
his  own property,  in view of the similar rights of others (Meeker v. E. Orange,
77 N.J.L. 623, 74  A.379, 1909).

     Among the two states that have still retained the reasonable use doc-
trine  (Arizona and Nebraska), Arizona holds that one landowner can withdraw
ground water, even though some harm is dealt his neighbor, if he is making a
reasonable use of  the water on land from under which the water is taken
 (Bristor v. Cheatham. 77 Ariz. 227, 255, P.2d 173, 1953).  Nebraska will
allow  out-of-basin diversions for municipal use if no damage is done to
overlying landowners in the area where the water is extracted (In re.
Metropolitan Utilities District of Omaha, 179 Neb. 783, 140 N.W. 2d 626,
 1966).It appeared that Arizona was leaning toward the Nebraska rule in
the  Jarvis cases (Jarvis v. State Land Department, 456 P.2d 385, 1964 and
Jarvis v. State  Land Department, 479 P.2d 269, 1970), with little limitation.
Then,  in early 1977, the court held in Farmers Investment Co. v. Bettery,
ejt al. (558 P.2d 14) that water cannot be transported out of a basin if other
overlying landowners are injured by the withdrawals.  It is also important to
note that neither  state has yet adopted a comprehensive ground water code.
This doctrine leaves much speculation as to what is "reasonable use," but on
the  other hand,  affords some measure of protection to property now existing
and  greater justification for the attempt to make new developments (Katz v.
Walkinshaw, 141  Cal. 116, 74 P.766, 1903).

Correlative Rights

     The doctrine  of correlative rights in ground water originated in Califor-
nia  and is a*further refinement to the reasonable use concept.  Several states
originally adopted this doctrine, then changed to another rule (i.e., Utah),
but  now only California, among the western states, applies this rule.  The
doctrine holds that among landowners overlying an underground water supply,
each landowner can make a reasonable use of that supply so long as the source
is sufficient.   But when the supply becomes insufficient due to the drought
or draw-down effect, each landowner is entitled to water in proportion to the
percent of his land in relation to all other lands overlying the underground
waters (Katz v.  Walkinshaw, supra.).  The net effect is to provide great
flexibility of ground water use in an effort to maximize the resources,
while providing  equitable allocation when shortages occur.
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Prior Appropriation

     Most of the western states found little reason to differentiate  their
systems of water law for surface waters and ground waters.   As a consequence,
they adopted ground water statutes of a similar philosophy  stating  that  this
source should be allowed maximum development with recognition and protection
given prior users.   This does not imply, however, that surface water  law was
automatically applicable to ground water.  In fact, several  states  enacted
laws to control  ground waters as late as mid-1950's and 1960's.

     The rule provides that ground water is subject to appropriation  for
beneficial use providing the intended user complies with the statutory re-
quirements, obtaining a permit or license as the case may be.  The  administra-
tive official must  determine if unappropriated ground water exists  and what
adverse effects  would occur from approving the application.   In most  states,
the law allows the  state water official, upon a determination that  a  partic-
ular ground water basin needs close management of withdrawals, to classify
the area as a critical or designated ground water basin (see Colorado or New
Mexico laws).  When this occurs, the users are placed under direct  control
for the protection  of the aquifer and vested rights.

Conjunctive Use of  Surface and Ground Water

     In many areas  throughout the West, ground and surface  waters are hydro-
logical ly interconnected so that withdrawals from one source affect the  other
sources.  The usual situation is that surface water users are senior  in  time
with a considerable investment in a diversion and delivery  system for their
water supply.

     Ground water use began to increase at a rapid rate during the  droughts
of the 1930's, with gas motor driven pumps.  Then in the late 1940's  and
1950's, the West witnessed a mass movement toward ground water pumping as
the Rural Electrification Administration (REA) brought electricity  to the
rural  areas and  pumps could now be driven more economically by electric
motors.  Conflicts  soon arose in Colorado, New Mexico, California and Texas
between surface  and ground water users.  If the courts strictly applied  the
rules of prior appropriation, most wells would be shut down and a vast amount
of water resources  would go unutilized.  However, if the wells were permitted
to pump, people  who heavily depended upon the security of their senior sur-
face water right would be grievously affected.  Thus, several solutions
emerged (see Radosevich and Sutton, 1972).  In New Mexico the State Engineer
used his authority  to declare critical areas as underground water basins,
giving him complete control over water management in the area.  For any  ground
water user or applicant whose withdrawals adversely affected stream flows,
continued withdrawals must be offset by retiring surface water rights.   Thus,
both surface and ground water users'  rights and economic interests  became pro-
tected under this "retirement of surface rights" approach.   In California,
ground water management districts have been formed in general cases by court
order to regulate withdrawals and use in the district area.   These  districts
are public entities.
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     Colorado has taken a different alternative.  An "augmentation plan"
approach was developed by which ground water users in a common area can
create any scheme that guarantees senior surface water users water when they
place a call on the river.  The schemes may include purchase of reservoirs,
surface rights, locating wells at the surface user's headgate, etc.  Once
drafted, the augmentation plan must be acceptable to the state water officials
and surface water users before it can be placed into operation.  The entity
that emerges is a private voluntary organization.  In the event ground water
users fail to come up with a plan, their pumping time is regulated by rules
promulgated by the State Engineer.


DRAINAGE

     The rights of landowners to protect their property from diffused surface
waters are only incidental to the irrigation return flow quality problem, be-
cause most agriculturalists are concerned with how they can capture and use
their source of supply.  However, a brief explanation of the rules is consid-
ered useful in light of the growing awareness and ability of meeting different
plant requirements for moisture and the need to adopt conservation practices
which prevent erosion and lead to sediment control.

     The three rules are:  common enemy rule, civil law rule and reasonable
use rule.  Under the common enemy rule, diffused surface waters are consider-
ed an "enemy" of the landowner and he can construct dikes, drains or other
necessary steps to protect his land from the damaging effects of the surface
waters (Tillinger v. Frisbie, 138 Mont. 60, 353 P.2d 645, 1960; Gillespie
Land and Irrigation Co. v. Gonzalez, 93 Ariz. 152, 372 P.2d 135, 1963, as
regards to flood waters).

     The civil law rule holds just the opposite.  It is "essentially a rule
of natural drainage holding that lower land is burdened with a natural ease-
ment of drainage in favor of higher land" (Colorado v.  Brannon Land and Gravel
Co_., 534 P.2d 652, Colo. App., 1975).  However, the higher land cannot increase
the burden on the lower land; and the latter can, if necessary, take protec-
tive measures to prevent damage to his land from unreasonable discharges
(Harper v. Johannesen, 84 Ida. 278, 371 P.2d 842, 1962).   Idaho also recog-
nizes the civil law rule that a natural servitude of natural  drainage
between adjoinyig lands exists so that the lower owner must accept the sur-
face water which naturally drains on his land (Dayley v.  The City of Burley,
524 P.2d 1073, Idaho, 1974).

     The third rule is in between the two previously discussed rules and
basically holds that there can be a reasonable interference with the natural
flow of water by either party to protect their property (Iyen v.  Roder. 431
P.2d 321,  Okla.,  1967).   The rules adopted by the western states are shown in
Table 1,  Column 13.
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INCENTIVES AND DISINCENTIVES TO EFFICIENT USE

Basin of Origin

     Several  states have adopted rules to protect the water needs of land-
owners and populations within a watershed from future shortages caused by
out-of-basin diversions and uses.  California adopted a county of origin rule
in 1931 (C.W.C., Sec. 10505) and a Watershed Protection Act in 1933 (C.W.C.,
Sec.  11460 to 11463).  These provisions give a general protection to inhabi-
tants within the county and basin to reclaim water in the future if needed
from noncounty or basin uses.  The impetus to the Watershed Protection Act
was the California Water Plan which has proceeded in spite of the reserva-
tions for future use within the basin.

     Colorado and Nebraska also have limitationson exportation of water from
a natural  basin (C.R.S., Sec. 37-45-118(IV); and N.R.S., Sec. 46-206 and
46-265).   In the case of Colorado, the law requires projects that use water
out of the natural basin shall not impair present and prospective uses of
water for irrigation and other beneficial consumptive use purposes within
the natural  basin, nor increase the cost at the expense of users within the
basin.

     Texas and Oklahoma have taken a different approach to out-of-basin
diversions.   In Texas, water for transfer out of the basin is restricted to
those waters  which will  be surplus to the reasonably foreseeable water supply
requirements  within the basin of origin for the next 50-year period (T.C.A.,
Sec.  8280-9).   In 1972, Oklahoma enacted the Stream Water Use Act (O.S.A., 82
Sec.  105).  It protects the current water users within a stream system from
damaging  out-of-basin transfers by requiring the Oklahoma Water Resources
Board to  review the water needs in the area of origin every five years (Ibid.,
Sec.  105.12).

Rights  and Duties to Return Flows

     Return  flows are an important source of water in the arid western states,
and as  such  are considered by water users and administrators as a commodity
that should  not be dealt with lightly.  As water rights to natural  flows were
granted,  the  streams began to be augmented from seepage, tail water runoff and
percolation.   Subsequently, other water rights were granted based upon this
source  of water and junior in time.   As such, the courts have generally held
that junior  appropriators can rely upon these return flows and protect their
rights in this  source (Boulder v.  Boulder and Left Hand Ditch Company,  557
P.2d  1182, Colo., 1977;  East Bench Irrigation Co. v.  Desert Irrigation Co.,
2 Utah  2d.l70, 271, P.2d 449, 1954).   Also, as a general rule, irrigation dis-
tricts  can recapture return flows before they leave boundaries and reuse
these waters  (Ide v.  United States,  263 U.S.  297, 1924).  But, this rule
normally  does  not extend to individuals as return flows are considered by
the courts to  be the nonconsumptive  uses of water that returns to the  stream
from the  proper and beneficial  application of water.

     This  leaves a fine  line between  waste water and return flow.   In  Binning
v. Miller, the Wyoming Supreme Court  stated a rule common to many

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 jurisdictions that one can recapture his waste water on his property and  reuse
 it thereon (55 Wyo. 451, 102 P.2d 54, 1940).   Other jurisdictions  have stated
 that a downstream user  can appropriate waste water, but cannot compel  the
 person committing the waste to continue to discharge nor prevent him from
 adopting improved practices that eliminate the waste (Wedgworth v.  Wedgworth,
 20 Ariz. 518, 181 P.952, 1919).	

 Loss of Hater Rights

      Water rights under the appropriation doctrine  can be lost  through  nonuse
 or misuse.   The theory of this principle under the  appropriation doctrine is
 that since the water  right is perpetual  (although some states have  gone to or
 are strongly considering term permits),  to provide  the security of  investment
 to the holder, nonuse or misuse  should  not prevent  someone  else from acquiring
 a  right to the water  by putting  it  to beneficial use.   There are five primary
 ways in which one's water right  may be  lost,  aside  from expropriation by  the
 government during emergency conditions.

      The first is abandonment.   Should  a right holder  not use his right for a
 statutory period of time and intend not  to use it,  his  water right  may  be lost.
 The important element is intent,  but this  may be difficult  for  the  state  or
 party claiming abandonment  to show.   The state or another user  must  bring
 action against the user and prove both elements.  Abandonment rules  exist in
 all  the western states.

      The second is forfeiture.  This  is  a  statutory  remedy  to nonuse  and only
 requires a  showing of nonuse of all  or a  part  of the right  for  a specified
 period of time.   Automatically, after the  statutory  term (usually three or
 five  years),  the water reverts to the public  for appropriation  by another (see
 Table 1,  Column  12).   There  are variations  in  state  laws as to  notice and pro-
 cedures  for carrying  out  the  forfeiture  provisions.   For example, in Oklahoma,
 water users must file  an  annual use  report  for  surface and ground water rights.
 Willful  failure  to complete  and return the  form can be considered prima facie
 evidence of nonuse and subject the  right to forfeiture (O.W.R.B., Rules &
 Regs.,  Sec. 385.7  and  660.6).

      Adverse  possession is  the third method, and this occurs when another
 openly and  notoriously uses  the water right of a person, and that person does
 nothing  about  it.   If  this continues for a specific  period,  the  former can
 claim  the right  as  his own.  The practice is not looked upon with great favor
 by the courts, however.

      Condemnation  is the fourth major type.  This occurs when  a  preferred  user
or public entity exercises the right of  condemnation.  Normally  the  only real
 issue  is the amount of compensation.  Colorado, however, recently passed a
 law requiring municipalities condemning  agricultural water rights to show  the
necessity for taking such action (C.R.S., Sec. 38-6-201 to 216;  see
Radosevich and Sabey,   1977).

     A water right can be adversely, affected by failure to use the water
beneficially or creating waste of water  as provided  under state  law.   All
western states require that only  water that can be put  to beneficial  use be

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  diverted  under a  water  right,  regardless of the amount allowed under the
  right.   In  Colorado,  the division engineer can refuse to cease delivery to a
  junior  if the  efforts to deliver to a senior water right holder would be
  "futile."  In  Idaho,  an appropriator is limited to the quantity of water
  specified in his  permit that is being beneficially used and any unused water
  is  subject  to  forfeiture (I.C., Sec. 42-222).  Even though the term "benefi-
  cial  use  per  se  is not statutorily defined, an appropriation is not valid
  unless  it is pursuant to a beneficial use (I.e., Sec. 42-104).  When enforce-
  ment  of beneficial  use  has been raised, the courts have held  that although
  conservation of water is a wise public policy, and an appropriator is acting
  against public policy if he takes more water than necessary to irrigate his
  land  (Coulson v. Aberdeen Springfield Canal  Co.. 39 Idaho, 320,  227"P.29,
  1924), an appropriator should not limit his water right to his minimum needs
  (Caldwell v  Twin Falls Salmon River Land & Water Co.. 225 F.  584, Dist.  Ct.
  Idaho, 1915).So long as an irrigator uses  reasonable farming methods, he
  is not required to use methods which are costly in labor  and  money simply
  because some waste can be saved thereby"  (Twin Falls  Land  and  Water Co   v
  Twin Falls Canal Co..  7 F.  Supp.  238 at 252,  Dist.  Ct.,  Ida.,  1933).	'

      Thus, water that cannot be put to beneficial  use is to be left in  the
  stream for other downstream users.   To insure  that  this water  is  left  in the
  stream,  Nevada's state engineer can,  if necessary,  hire guards to  police the
  streams  and charge the water users  the costs of such  action (N.R.S,  Sec.,
  533.470).

 Water  Quality in Mater Rights

     As  has  been stated  numerous times  throughout this report, there is at
 least  an implied right of water quality under  the doctrine  of  prior appropri-
 ation.   In only one  state (California) does the statute make specific provi-
 sion of  the  element  of water quality in a right, such that  a user can make
 the  same demands on  an agency to protect his interest in water quality as he
 can  his  interest  in  the  quantity he is entitled to according to the priority
 of right.  In spite  of the fact that the state of Washington has integrated
 water  quantity  and quality management under the Department of Ecology, not
 much progress has  been made to actually implement these two elements in the
 exercise of  water  rights and resulting quality of return flow.   However, a
 recent Washington  Supreme Court decision holds  the Department  of Ecology,
 under  the  Water Resources Act of 1971  (R.C.W.  Ch. 90.54), must consider water
 quality  considerations resulting from a prospective use in deciding to grant
 or deny  an application for a water right (Stempel v. The Department of Water
 Resources. Case  No.  42448, March 29, 1973):	

     In all  the western states, the courts have recognized  the  common law
doctrines of nuisance and trespass as applying to the  protection  of property
interests  in water.  Several western states  have held  that  with regard  to
mining operations, they cannot use the water from a  stream  or the  natural
water course to discharge any wastes or to otherwise pollute the  stream  so
as to render it unfit for use or fill  it up with mud,  sand,  gravel,  or other
mining  debris (Wright v.  Best.  121  P.2d 709,  Cal.;  Pacific  Gas  and  Electric
Co.; Ill P.2d 368, Cal.; Slide Mines  v.  Left Hand Ditch Co..  77  P.2d  125T~Co"l  •
Wilmore v.  Chain O'Mines. 44 P.2d  1024.  Col.;  Ravndale v. North Fork Placers'.

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 91  P.2d 368,  Ida.; Berry v. Shell Petroleum Co., 33 P.2d 958, Kan.; People
 v.  New Penn Mines Inc., 28 Cal. R. 337, Cal.; Free! v. Ozark-Mohaning Co..
 208 Fed. Supp. 93, Dist. Ct. of Colo.).  These cases are briefly discussed In
 each state report of the companion volume (Achieving Irrigation Return Flow
 Quality Control Through Improved Legal Systems,  Radosevich and Skogerboe,
 1978), Appendix A, Section 6.

     An example of the nature of cases as they pertain to agriculture is the
 Idaho decision, Ravndale v. North Fork Placers (60 Ida. 305, 91 P.2d 368,
 1939).  In that case, plaintiff's ditches and crops were injured by the
 hydraulic mining process employed by the defendant mining company.   The
 Idaho Supreme Court affirmed the damage judgment awarded by the district
 court and held that:

     Numerous authorities announce the doctrine that while a prior
     use of the water of a stream for mining purposes necessarily
     contaminates it to some extent, such contamination or deter-
     ioration of the quality of the water cannot be carried to such
     a degree as to inflict substantial injury upon another use of
     the waters of said stream (Ravndale v.  North Fork Placers, 60
     Ida.  305, 91 P.2d 368, 19397!

     In spite of this result, one law review article has stated that private
nuisance actions have "provided virtually no incentive to the offenders to
reduce their harmful  discharges into the waterways" (Wood, 1971).   In Texas,
the court held that the same salt content which is fixed by statute, as
rendering public waters unfit for irrigation purposes, determines the fitness
for use of private waters (Nash and Wijidfohr v. Edens, 109 S.W. 2nd 496, Tex.),
Although the court in that case held that the plaintiff had failed to provide
sufficient information to establish that the salt content of the water in the
streams was unfit for irrigation, or that it seeped through the banks of the
stream for several feet and killed large native trees; the court did say that
Article 698A of Vernon's Annotated Penal  Code applied to irrigation.  This
section staftes:

     All  discharges of salt water contributing to conditions
     inhibited by this act or accumulative of conditions inhibited
     by this act shall be violations of this act; providing that any
     and all discharges of salt water into a fresh water stream or
     natural body of fresh water of this state produces or contrib-
     utes to a salinity in excess of 2,000 parts of salt in one
     million parts of water shall be violations of this act.

     In Oklahoma, courts held that there would be no actionable injury from
unreasonable drainage into the stream (St. Louis and S.F.R. Co. v. Burrous,
 118 P.143, Okla.).  As a general  rule, if the pollution of a water course
does not constitute a public nuisance, the right to use the water of a stream
 in such a manner as to pollute it to the prejudice of a lower riparian pro-
priator may be acquired by prescription (Wright v. Best, 121 P.2d 702, Cal.).
 In order to acquire this right by prescription to pollute a stream, the ripar-
ian proprietor's use of the water must be injurious and adverse to the lower
proprietor's interest (Poole v. Olaveson, 356 P.2nd, 61, Ida.).  This same

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right to pollute may be lost by long, continued nonuse (Wright v.  Best,
121 P.2d 702, Cal.).

     Also, as a general rule, any person who pollutes  a natural  water course
to the injury of a riparian owner is liable for the damages  resulting from
this (Klassen v. Central Kansas Co-op Creamery Asso.,  165 P.2d 601,  Kan.;
Atlantic Refining Co.  v. Fulsom, 91 P.2d 758, Okl.; Humble Pipeline  Co.  v.
Day, 172 S.W. 2nd, 356, Tex.; Rocky Ford Irrigation Co. v.  Kents Lake Reser-
vation Co., 135 P.2d 108, UtahTThis rule applies even if it comes from a
reclamation district (Ingram v. City of Gridley, 224 P.2nd 798,  Cal.).

     The conclusion from an analysis of all  the cases  studied  to date on the
water quality protection issue is that a water user must pursue  his  own
remedy in court if he wishes to protect the quality of water he  is receiving.

Transfer of Water Rights and Salvaged and Developed Waters

     One last feature of a water right for irrigation  use must be  mentioned.
In all states of the West, when a water right is granted for irrigation  use,
that right becomes appurtenant to the land(s) described in the permit, that
is, it attaches to those lands and cannot be used  elsewhere  without  approval
of the state agency (or Water Court in Colorado).   Many variations as to the
extent of attachment exist, however.  Most states  use  what,  for  lack of  a
better term, we call limited attachment.  This only requires approval  of the
state agency when proper measures and adjustments  are  made in  the  transfer
to prevent impairment of other users' rights.  In  a few states,  like Colorado,
the water right does not necessarily transfer with the sale  of land  (James v.
Barker. 99 Colo. 551,  64 P.2d 598, 1937).

     In a minority of other states, the appurtenancy rule is strict.   That is,
the transfer can be approved if for uses other than irrigation (A.R.S.,  Sec.
45-172), or if it becomes impracticable to use the water economically or
beneficially on the original lands (in re Determination of Relative  Rights to
Use of Waters of Pantona Creek. 45 Ariz. 156, 41 P.2d  288, 1935).Wyoming
applies the appurtenancy rule only to direct flow rights, but  as noted by
Meyers and Tarlock (1971, p. 528), some fourteen statutory exceptions riddle
the principle.  The other states with strict provisions on transfer  are  Okla-
homa, Oregon, Nebraska, Nevada, and South Dakota.   The reason  for  many states
tying water rights to  land at the turn of the century  was to prevent some of
the fraudulent land and water sales practices that had gone  on under earlier
federal settlement schemes in the West.  (See section  2.6 in the state reports,
Appendix A, this report.)

     The epitome of the transfer restriction problem is represented  by the
decision in Salt River Valley Water Users Association  v. Kovacovich  (411 P.
2d 201, Ariz. 1966).The Arizona Supreme Court was presented  with the task
of deciding whether or not an owner of land having a valid water right may,
through water saving practices, apply the water thus saved to  immediately
adjacent lands in his  ownership.  Salvaged waters  are  defined  as those waters
"saved by improvements made to the channel  of a stream; they are waters  that
otherwise would be lost by seepage or evaporation"  (Hutchins,  1942).   The
defendant improved his conveyance system by lining some ditches  and  through

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phreatophyte control in others.  The water normally lost through seepage or
evaporation was applied to 35 acres of adjacent land.  The defendant did not
increase his diversion from the river.  In analyzing the situation,  the court
stated:

     It was argued that decision of this issue in favor of appellants
     (Salt River Valley Water Users Association) would result in
     penalizing a person who, through their industry, effort and
     expense, engaged in water saving practices	   Certainly any
     effort by users of water in Arizona tending toward conservation
     and more economical  use of water is to be highly commended.
     However, commendable practices do not in themself create legal
     right.

     ...In an effort to achieve some degree of order...our court,
     through a series of decisions  developed and applied what we
     today refer to as the doctrine of beneficial  use.

     This court is of the opinion that the doctrine  of beneficial
     use precludes the application  of waters gained  by water con-
     servation practices  to lands other than those to which the
     water was originally appurtenant	   Beneficial use is the
     measure and the limit of the use of water	   Any practice,
     whether through water saving procedures or otherwise whereby
     appellees may in fact reduce the quantity of water actually
     taken insures to the benefit of other water users and neither
     creates a right to use the water saved as a marketable com-
     modity nor the right to apply  the same to adjacent property
     having no appurtenant water right (op cit.).

     Fortunately, the holding in Kovacovich is not the general  rule.   It is
generally held that waters salvaged through an individual's improvements in
his system accrues to the party saving them (Clark,  Vol.  1, p.  342,  1967;
Dickenson, 1969).  However, the cases establishing the general  rule  are
early cases decided in a period of  time when agriculture was King  of the
West and water shortages did not materially exist.   Although a  general  policy
of efficiency and adaptation of conservation practices is the order  of the
day, the result obtained in Arizona could be decided in other appropriation
states upon a strict construction of the beneficial  use concept and  defini-
tion of an appropriation as a result of nonagricultural  and influential  uses
placing demands on limited supplies.

     States following the rule of the Kovacovich case regarding the  use of
salvaged waters could greatly benefit if that decision was distinguished or
overturned and instead the rule set out in Reno v. Richards (178 P.2d 81,
Ida. 1918).  Reno held:

     ...if one, by his own efforts, adds to the supply of water in
     a stream, he is entitled to the water which he  has developed
     even though an appropriator with more senior priority might
     be without water.  The reason  for this rule is  the obvious one
     that a person should reap the  benefits of his own efforts,

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     buttressed by the view that a priority relates only to the
     natural  supply of the stream as of the time of the appropri-
     ation (Ibid.).

     Colorado has  taken an interesting position with respect to those  who
improve their water delivery systems through lining or reducing water-
consuming vegetation along the river.  In Southeastern Colorado Water  Con-
servancy District  v. She!ton Farms, Inc.  (529 P.2d, 1321, Colo. 1974), the
court held that merely clearing the channel, lining it with concrete or
otherwise hastening the flow of water without adding to the existing water
does not entitle that person to a water right.   However, if one adds to an
existing water supply, he is entitled to decree affirming the use  of such
water.   But,  strong evidence is required to prove the addition of  the  water.
Further, the  court held that if the entity cuts down water-consuming vegeta-
tion along the river, they do not have the right to an equivalent  amount of
water for their own beneficial  use free from the call  of the river.

     The Colorado  court, in the She!ton Farms case, held that developed
waters  are free from the river call and are not junior prior decrees,  but
that the withdrawal of water must be orderly, and to be orderly it must come
under the priority system.  It defined developed water as new water  that is
not previously part of a river system and the salvaged waters are  waters in
the river or  its tributaries including the aquifer which ordinarily  would go
to waste, but somehow are made available for beneficial  use.

     The court in  the She!ton Farms case was concerned with two judgments and
decrees awarding the appealees, She!ton Farms and Colorado—New Mexico Land
Company, water rights free from the call  of any and all  senior decreed water
rights  in the Arkansas River.  The court said that this case, "so  far  as we
are advised,  is of first impression in the United States dealing with  whether
the killing of water-using vegetation and the filling of the marshy  area to
prevent evaporation can produce a superior water right for the amount  of
water not transpired or evaporated" (Ibid.).  The Pueblo District  Court held
that it could.   The Supreme Court of Colorado reversed this judgment.   In this
particular case, the facts were that in 1863, there were virtually no  water-
loving  trees  along the banks of the Arkansas River.  Within the next forty
years,  the native  Indians and the buffalo were decimated and the phreatophytes
and cottonwoods began to appear along the Arkansas River.  Since 1863, all  the
surface flow  of the river was put to beneficial  use and the river  is greatly
overappropriated.   The appealees realized that the phreatophytes created the
water shortage by  consuming large quantities of subsurface watersvhich other-
wise would be in the stream.   Appealee Shelton Farms cleared two land  areas
of phreatophytes and filled in a marshy area and maintained that he  saved
approximately 442  acre-feet of water per year.   Shelton Farms wanted to aug-
ment their other rights with this salvaged water.   The lower court awarded
the appeal ee  181.72 acre-feet of water free from call  on the river.  The
lower court's reasoning was that the capture and use of water by another,
water which would  ordinarily be lost, is not detrimental  to the prior  holders
and therefore is not subject to the priority system.   The appealee,  Colorado-
New Mexico Land Company, received a similar award of 181  acre-feet a year
free from the call  on the river.   The real  issue in this case relates  to
developed salvaged waters  and whether the granting of such a unique  water

                                     65

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 right will encourage the denuding of river banks everywhere—trees and shrubs,
 like the vegetation destroyed in this case, also consume river water.

     The court looked at Colorado case law and found that there is no  question
 that one who merely clears out a channel, lines it with concrete,  or other-
 wise hastens the flow of the water without adding to the existing  water is not
 entitled to that decree (Sucker's Irrigation Co. v. The Farmer Ditch Co.,  72
 P.49, 1903).   With a series of cases, the most recent being Fellhauer  v.  the
 People (447 P.2d 986, 1968), the appellate court found that when one adds
 water to an existing water supply, he is entitled to a decree.  And this
 occurs in three situations:  1)  when he physically transports water from
 another source, as from another basin;  2) when his property captures and
 stores floodwaters; and 3) when  he finds water within the system which would
 never have normally reached the  river or its tributaries (for example, trapped
water artificially produced by draining a mine or trapped water in independ-
 ent saucepan-type formations composed of impervious shale which prevents
water from escaping).   The court then distinguished between developed  and
 salvaged waters.

     The court used the following analysis in ruling on the removal  of phre-
 atophytes.   They said that the roots of the phreatophytes were like a  pump.
The trees do not have to go to court or seek any right; they merely sucked
 up the water from prior appropriators.   Now, the appealees were taking the
water from the trees;  therefore  the appealees are continuing to take water
 from the appropriators, but sought a decree to approve it.   They have  added
 nothing new,  and to grant the appealees an unconditional  water right would
 be a windfall which cannot be allowed.   For thirsty men cannot step into
 the shoes of a water thief (the  phreatophytes).

     Another very important point was made in the Shelton Farms case.   The
 court maintained that appeal ees  wanted  to substitute the priority  doctrine
 with a lack of injury doctrine.   It said, in Fellhauer, when speaking  of
 future water law:

     . ..itris implicit...that along with a vested right there shall
     be maximum utilization of the water of this state.  The admin-
     istration of water approaches its  second century, the curtain
     is opening upon a new drama of a maximum utilization and how
     constitutionally that doctrine can be integrated into the law
     of vested rights.  We have  known for a long time that the
     doctrine was lurking in the backstage shadows as a result of
     the accepted, though oft-violated, principle that the right to
     water does not give the right to waste it (Ibid.).

The legislature responded by making a statutory declaration of these twin
mandates of protecting vested rights and achieving maximum utilization.  The
court held that the doctrine of prior appropriation is essential and that  all
water decrees of any kind are bound to the call  of the river,  subject  to any
specific exemptions found in law.  The court went on to say:

     We arrive at the instant decision  with reluctance, as we are
     loathe to stifle creativity in finding new water supplies and

                                     66

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     do not wish to discourage maximum beneficial  use call  of the
     water, but there are questions of policy to consider.   If new
     waters can be had by appealees...without legislative supervi-
     sion, there will be perhaps thousands of such decrees  on all
     rivers in the state (Ibid.).

It is rather unique that the court went on by quoting the State Engineer of
New Mexico, Mr. S. E. Reynolds:

     ...if one ignores the technical difficulty in determining the
     amount of water salvaged, this proposal  at first blush might
     seem reasonable in the interest of the best use of water and
     related land resources...(Ibid.).

     On closer scrutiny, it appears that if the water supply of
     prior existing rights is lost to an encroaching phreatophyte,
     and then taken by individuals irrigating the  plant, the re-
     sult would be chaos.  The doctrine of prior appropriation as
     we know it would fall—the phreatophyte, and  then the  indivi-
     dual  salvaging water, would have the best right.   Further-
     more, if individuals salvaging public water lost to encroach-
     ing phreatophytes were permitted to create new water rights
     where there is no new water, the price of salt cedar jungles
     would rise sharply.  And we can expect to see a thriving, if
     clandestine, business in salt cedar seed and  phreatophyte
     cultivation (Ibid., 1327).

The court then went on to say that if they were to confirm  the decrees,  the
use of the power saw and the bulldozer would generate a better right than the
earliest right on the ditch.  Furthermore, it concluded, if all  these plants
were to be cut down, the soil  on the banks of the  river would slip away  and
cause erosion.
SUMMARY

     The law of water allocation and use in  the  seventeen western states is
in a very rapid state of change.   In order to  be fully  apprised of its status,
a constant monitoring of case and statutory  law  is  required.  As the tradi-
tional  composition of many state legislatures  goes  from rural to urban, it is
a sure  bet that the protection of past  irrigation practices  in the use of
water will  come under great scrutiny and be  subjected to many changes.  Better
water management will  be the focus.

     Directly affecting  the management  of water  in  the  West  is the water right
designed to provide the  water user with the  same constitutional guarantees
extended to real  property.   The resulting effect upon agricultural users is
that certain rigidities  in the exercise and  protection  of the right inhibit
adaptation of more efficient practices.   Furthermore, the water right holder
is primarily concerned with his immediate geographic area, and not with the
effects from exercising  his right upon  downstream users  and  users who may be
in another state and  themselves subject to different rules and regulations.

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Again, it can only be anticipated that in  the  near  future  greater  uniformity
in the law among the states  and  in water use efficiency  criteria will occur.

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                                 SECTION 6

     STATE WATER QUANTITY AGENCIES AND LOCAL WATER ENTITIES  IN THE WEST


EVOLUTION AND STATUS OF WATER ADMINISTRATION

     Water administration began to evolve in the western United States simul-
taneously with the legislative enactments creating property  rights in the  use
of water and declaring the states'  duty to insure that waters  will be allo-
cated and distributed according to the rights so established.   This early
structuring of government agencies for water control  effectively began with
water quantity activities as a result of the increased growth  of the West  in
the last half of the 1800's.  This growth was stimulated by  federal land
settlement schemes and the emergence at the turn of the century of a national
reclamation program.  (See Clark, 1967, Vol.  1,  Ch. 2, for detailed discussion
of state water administration.  For historical  interest in early state organ-
izations, see Mead, 1903; Thomas, 1920; Kinney,  1912; and Wiel, 1911.)  Water
pollution control  also became a state agency activity in the last 1800's,  but
initially only as  pollution caused diseases.   This was one of  the activities
of the state Public Health Department.

     In 1879, Colorado was the first state to create a water rights adminis-
tration agency, followed by Wyoming in 1890.   From the very  outset, the dis-
tinction between the Colorado and Wyoming approaches has influenced the sub-
sequent organizational patterns of the other western states.  Colorado's
model  has remained virtually unchanged over the years.  Allocation of water
and adjudication of water rights was the function of courts, while distribu-
tion of water and  administration of water quantity control laws for exercise
and protection of  water rights was the duty of the State Engineer.

     The difficulty of having these four major duties divided  between the
judiciary and executive branches led Wyoming to  adopt an approach in which
all four duties were combined into an entity of the executive  branch.
Wyoming's approach is also unique and has not been duplicated  in any other
state, but it has  served as the pattern for most of the remaining states.  The
Office of State Engineer was created (a territorial Engineer existed prior to
statehood) and the State of Wyoming was divided  into four divisions consistent
with the hydrologic boundaries of the four major river basins.   In each divi-
sion is appointed  a superintendent engineer that is responsible for distribu-
tion of water in the division.  The State Engineer is responsible for admin-
istration of the water laws.  He, plus the four  division superintendents,
comprise the State Board of Control  which in a quasi-judicial  capacity
allocates water and adjudicates water rights.  Parties adversely affected  by
their action have  the right to judicial review.   The State Engineer and his
four superintendents are appointed by the Governor.

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      This combined all  four major water quantity duties—i.e.:  1) allocation
 and 2)  distribution of  water; 3) adjudication of water rights according to
 the allocation made;  and  4) administration of water law—into essentially one
 agency, the Office of State Engineer.  It placed the responsibility of making
 policy  and water management decisions into the hands of those most closely
 associated with water distribution and administration of the law and rules and
 regulations adopted by  the Board.

      As reported by Clark (1967, Vol. 1, p. 103):

      Nebraska  followed  the Wyoming system closely in 1895.   Varia-
      tions were adopted by Idaho and Utah in 1903; by Nevada, New
      Mexico, Utah, North  Dakota, South Dakota, and Oklahoma in 1905;
      by Oregon  in  1909; by Texas in 1913; by California in 1914; by
      Kansas and Washington in 1917; and by Arizona in 1919.

      Only  in 1971  has Montana adopted an administrative structure in charge
 of  water allocation,  distribution of water, administration of water rights,
 and initiation  of  adjudication proceedings.  Following a trend that began
 appearing  in the 1950's, a Department of Natural Resources and Conservation
 was created with the  Water Resources Division in charge of water matters.
 The reorganization that took place in 1971-72, however, still lacked the
 ability to effectively  administer water rights under the system of recorda-
 tion followed  by the  state.  The water rights were recorded in the district
 courts, with no central control  over either allocation or planning of future
 use.  Consequently,  in  1972 a constitutional amendment was adopted which
 states:

      (4)   The  legislature shall  provide for the administration, con-
      trol, and  regulation of water rights and shall  establish a system
      of centralized records, in addition to the present system of local
      records (Mont.  Const. Art.  IX, Sec.  3).

 Following  thf  constitutional amendment, the Department was granted the addi-
 tional  powers  by legislative enactment.

      Colorado  is thus the only state in the West in which administrative
 control  over acquisition of surface waters does not exist.   In Colorado,
 the courts, who grant surface water rights, had no real guidance or assist-
 ance in establishing  priorities until the 1969 Water Rights Determination
 and Administration Act  was passed.

      Many  of the states have reorganized and changed the titles of the key
 personnel.   In  fact,  several states are currently considering reorganization
 plans (i.e., Oklahoma and Texas), with the most predominant feature in the
 new organizational  structure being the integration of water quantity and
 quality control  under one agency.  The present status of state agencies
 charged with water allocation rights administration and water planning and
 development is  set out  in Table 2.   For an explanation of the precise func-
 tions and  composition of the state agencies, see Section 3 of the state  water
 quantity reports,  infra Appendix A, and Radosevich and Skogerboe (1978),
Appendix A, Section 2.

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                  TABLE 2:  STATE WATER ADMINISTRATION, PLANNING AND DEVELOPMENT AGENCIES.
State
1. Arizona
2. California
3. Colorado
I*. Idaho
5. Kansas
6. Montana
7. Nebraska
Water Rights Administration
Chief
Division of Water Rights
State Land Department
Chai rman
State Water Resources Control Board
The Resources Agency
State Engineer
Division of Water Resources
Department of Natural Resources
Di rector
Department of Water Resources
Operations Division
Chief Engineer
Division of Water Resources
Kansas State Board of Agriculture
Planning and Development
State Water Engineer
Arizona Water Commission
Director
Department of Water Resources
The Resources Agency
Di rector
Colorado Water Conservation Board
Department of Natural Resources
Planning Division
Department of Water Resources
Chai rman
Water Resources Board
Administrator Resources and Planning Bureau
Water Resources Division Water Resources Division
Engineering Bureau Department of Natural Resources
Department of Natural Resources 6 Conservation and Conservation
Di rector
Department of Water Resources
Cha i rman
Natural Resources Commission
8.    Nevada
State Engineer
Division of Water Resources
(Engineering Section)
Department of Conservation £ Natural Resources
Special Projects Aid Planning Section
Division of Water Resources
Department of Conservation and
   Natural Resources           	
 9.   New Mexico
State Engineer
State Engineers Office
State Engineer
State Engineers Office
10.   North Dakota
State Engineer
State Water Commission
(Legal Services Division)
Division of Planning
State Engineer
State Water Commission
11.   Oklahoma
Di rector
Water Resources Board
Director
Water Resources Board
12.   Oregon
Di rector
Water Resources Department
(Water Rights Division)
Policy and Planning Division
Water Resources Department
13.   South Dakota
Di rector
Division of Water Rights
Department of Natural Resources Development
Di rector
Division of Resource Management
Department of Natural Resources
   Development	
\k,   Texas
Chai rman
Texas Water Rights Commission
Chai rman
Texas Water Development Board
15.   Utah
State Engineer
Division of Water Rights
Department of Natural Resources
Director
Division of Water Resources
Department of Natural Resources
16.   Washington        Water Resources Management  Division
                       (Water Resources  Management Section)
                      Office of Water Programs
                      Department of  Ecology
                                                  Water Resources Policy Development
                                                     Section
                                                  Water Resources Management Division
                                                  Office of Water Programs
                                                  Department of Ecology	
17.  Wyoming
State Engineer and Board of Control
State Engineers Office and
   Board of Control
Wyoming Water Planning Program
State Engineers Office and
Water Planning Section
Department of Economics, Planning
   and Development	
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EMERGENCE OF LOCAL IRRIGATION ORGANIZATIONS

     A wide array of organizational  arrangements evolved within  irrigation
systems to develop water resources and improve the efficiency of water  use.
The design and function of each entity depends upon the purpose  and  scope of
authority.  Their creation is the result of a  natural  phenomenon of  social
interaction.  Initially, in most irrigation systems water was diverted  by
individual farmers to lands near the streambeds.   As these lands were settled
and it was necessary to utilize lands at greater distances, the  cost incurred
in developing transportation systems exceeded  the financial and  physical cap-
abilities of the individual farmer,  so he was  compelled to develop a coopera-
tive arrangement with his neighbors.   The magnitude of this cooperation
ranges all the way from independent  actions by farmers in small  groups  to the
most complex of local organizations  (Mead, 1903;  Thomas, 1920; and Kinney,
Vol. Ill, 1912).

     As previously noted, the primary purpose  for the  creation of local  irri-
gation organizations was to develop  a water delivery system and, in  later
stages of development within the irrigation system, to add a water removal
system.  Farmers, being independent  people, are very inclined to minimize any
interference with the rights they have on their own properties.   For this
reason, duties of irrigation organizations normally end at the landowner's
headgate, or are assumed to drain waste water  or lower high water tables.

     The role of the irrigation organizations  that have emerged  and  flour-
ished since the late 1800's was very well  described in the Annual Report of
the Department of Agriculture in 1903.   About  these institutions, it was
written:

     The farmers who have reclaimed  the arid lands of the West are
     learning that the legal, social  and business questions of irri-
     gation are vital factors in their success.  Instead of each man
     being able to work independently of his neighbor, as they were
     accustomed to do in the East, they find that what their neighbors
     do has almost as much influence upon the  outcome  of their year's
     work as what they do themselves.  It is impossible for each
     farmer to build his own canal and divert  the stream independently
     of his neighbor.  The wasteful  use of water by the irrigator at
     the head of the lateral means drought and loss of crops to  the
     man at the lower end.  The people of communities  are bound  to-
     gether by a common tie of dependence on the canal which diverts
     the stream and on the stream which makes  the soil productive,
     and the laws and business methods for carrying out this distribu-
     tion are a controlling factor in the prosperity of the irrigators
     and the peace and well-being of those who live on irrigated lands.
     The arrangements for opening and closing  the gates of ditches and
     for keeping laterals in proper condition  to carry the needed water
     supply does as much to determine whether  communities shall  live in
     peace or be at war as does the character  of the people, and the
     working out of the laws and business arrangements under which
     these are carried out involves  the settlement of  many practical
     questions and careful study by trained men (Wash., G.P.O.,  p. 318).

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Range of Irrigation Organizations

     Within the irrigation system, definite organizational  structures emerged
over time,  ranging from the private individual   and irrigation company,  to
irrigation, conservancy and conservation districts.  In many instances,  a
great variety and multitude of irrigation companies within  a given system
interact in complex ways in distributing water,  providing intricate patterns
of interorganizational  arrangements.

     Irrigation companies consist of two types--commercial  and mutual.   Com-
mercial  companies came  on the scene first.   They were operated by individuals
for the sale of water,  or to distribute water to farmers and later the public.
These were  profit-motivated organizations.   In  the 1870's and 1880's,
investors in the East and from Europe contributed capital toward this new
discovery in water development.   However, early  agricultural development in
the West was not a very profitable venture  and  investors began to look else-
where to place their monies.

     These  commercial irrigation enterprises evolved into three basic categor-
ies:  1) construction and development companies; 2) private contract companies,
and 3) public utility companies.  Of the three yet in existence, there are a
number of private contract companies in certain  local areas supplying water
to farmers, there are but a handful of private  public utility water companies
still in existence, and very few, if any,construction and development compan-
ies per se.

         Not having large sums of money available to .pay for services offered
by the commercial  companies, and being the  individuals that they are, farmers
soon developed an organization that fit their needs—the mutual irrigation
company. At first these enterprises were nothing but an agreement between
neighbors for the construction of canals and ditches from the source of their
lands.  Later, this was made formal by written  agreement and usually incor-
porated under the corporation laws of the state.

     These  mutual  companies are owned and operated by consumers who are  also
the shareholders.   They are non-profit organizations, consisting of voluntary
members  who, as stockholders, receive water in proportion to their shares.
Assessments in proportion to ownership are  paid  for operation and maintenance
of the company and facilities.  Figure 5 illustrates the usual  organizational
structure of a mutual company and its flow  or accountability and water service.
Instead of  distributing profits as dividends, the companies distribute avail-
able water  to their members.  In many areas, these mutual enterprises own and
operate  storage reservoirs and large conveyance  works (see  Section 3.3 of
each state  report for an explanation of the law, water users and their local
organizations).

     A third type of local  water users organization is the  voluntary associa-
tion.  These arrangements may be described  as associations  of persons,  usu-
ally along  the same water supply source,  who organize for the purpose of
better protecting their rights and the division  of waters in the stream  be-
tween respective owners.   Such associations construct the necessary works for
the diversion of water  and transport it only to  the lands of members of  the

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        FARMER/STOCKHOLDERS
        BOARD OF DIRECTORS
                                                     Flow of accountability
                                                      of the stockholders
                                                      through the Board of
                                                     Directors to which the
                                                        organization is
                                                          accountable.
                                    -- General  Supervision
                                        Auxiliary Contacts
                                          and Activities
                BOARD OF DIRECTORS
Construction
RESERVOIR, PUMP,
  AND HEADGATE
   TENDERS AND
    OPERATORS.
    PATROLMEN
                                     MAINTENANCE
                                        FORCE
  Flow of
   water
  delivery
 service  to
stockholders
SOURCE:Adopted from the Farm Credit Administration pamphlet by Wells A.
Hutchins, entitled Organization and Operation of Cooperative Irrigation Coin-
panies, pp. 30-31, 1936.

      Figure 5.  Organizational structure of mutual irrigation companies.

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association.   The principal  difference between  the voluntary associations and
mutual  irrigation companies  is that the latter  are usually  formally  organized
as a company  or incorporated under law.  This type of organization is  suited
to communities where irrigation problems are fairly simple.

     Voluntary water users associations are, however, often  organized  with a
considerable  degree of local formality.8  Officers are elected  and by-laws,
rules and regulations are adopted for governing the respective  rights  of the
members and the general  affairs of the association.   Though  much  formality
may attend the organization, title to the water rights remains  with  the
individual  members and not in the association.

     In some  jurisdictions (for example, New Mexico), the status  of  voluntary
associations  is defined by statute (N.M.S.,  Sec.  75-14.1).   This  is  seen where
a community ditch or "public acequia" was the usual  means for diversion and
distribution  of water.  Here, each village or group of farmers  constructed
its own common ditch.  Elections, management, construction,  and control of
these ditches are regulated  by law.  Under statutory provisions,  every land-
owner on such a ditch, whether he uses the water or not, is  required to con-
tribute his quota of labor or a monetary substitute and is  required  to main-
tain and preserve the ditch.  Associations formed around community ditches
are considered political  subdivisions of the state,  but, anomalously,  the
ditches themselves are considered to be private property of  persons  who
completed the ditches, which necessarily means  those who live under  its
irrigation.   It is usually provided that all community ditches, or perhaps
more accurately, the communities using them  shall  be considered as corpora-
tions or bodies corporate with power to sue  or  to be sued as such.

     Similar  to the mutual irrigation company is the water  user association.
These associations are usually organized by  actual  or potential waters users,
or a federal  of existing companies, to contract with the government  to build
or improve irrigation works.  The advantage  of  this approach is that it pro-
vides a means for many poor  landowners with  small  parcels to pool limited
funds,  irrigate their lands, and increase their crop yields, thereby increas-
ing their incomes.  Indeed,  such a plan encourages purchases of arid but
fertile land  which can often be bought at low prices.   After irrigation, such
land  hopefully will  support itself and increase in value.

     Generally, the object of these associations is threefold:

     1.   To provide irrigation in an area where individuals  do  not have funds
     to finance such a venture independently.

     2.   To allow the government to deal with one organization  representing
     all  water users in an area rather than  having to deal with many users on
     an individual basis.
    8 For a  detailed account of the  history,  organization  and  operation of
voluntary associations  in  Texas and  New Mexico,  see  Glick,  1972 and  Lovato,
1974.

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     3.  To provide a responsible organization to manage the irrigation
     contemplated by a reclamation act.

     The organization of a water user association must be in such form as is
acceptable to the Bureau of Reclamation, although the government takes no
active role in operating and managing the works.   Essential  features  of the
articles of incorporation include provisions for  effecting the reclamation
law regarding ownership of the reclaimed area and for guaranteeing repayment
to the government of the cost of the reclamation  works.

     Often a water user association is merely a temporary arrangement.  When
the governmental  agency responsible for overseeing these projects transfers
the works entirely to the association, the organization  is usually reconsti-
tuted to a successor-type of permanent association, such as a mutual  company
or district.  The use of the association by the Bureau to contract with
local  water users was not very satisfactory, and  in the  mid-1930's, the
Bureau shifted away from the private association  to the  public irrigation
district.

     Irrigation districts are quasi-public and public organizations formed
to amass sufficient capital  to construct and operate irrigation systems on a
larger geographical  basis than that covered by irrigation companies.   Again,
the emphasis is primarily upon water delivery and water  removal.   A distinc-
tive feature of the district is its ability to sell bonds and levy a_d
valorem property  taxes to raise the money necessary for  project construction
and repayment.

     Formation of irrigation districts can be brought about by a voluntary
action of the irrigation community or occasionally as a  condition to  federal
and state funding of an irrigation project.   A majority  of landowners who
will benefit from the district activities must vote for  formation. Upon
approval of the majority of the electors in the proposed district, a  board
of supervisors or commissioners is elected.   This board  then completes the
formalities of the district's formation.  Initially, districts were formed
for the single purpose of including the water delivery systems and providing
proper timing of the delivery, then similar departments  in the functions of
drainage and waste water removal  were added.  Gradually, irrigation districts
expanded their functions to municipal water delivery.

     In such an evolutionary perspective described above, there is the tend-
ency that along with the demands for more water,  larger  and improved  facili-
ties are needed, so a necessary development takes place  from the small  user,
to the small company, and then to the irrigation  district.

     The ultimate step in this hierarchy of evolving magnitude and complexity
is the conservancy district.  In response to the  needs for a larger entity-
one that has primarily a larger financial base—the conservancy district was
created.  It is, in effect, the super district taking in many irrigation
districts.  While these are presently the result  of water developments for
irrigation, they are also formed for domestic use, manufacturing,, and  power,
and other beneficial uses.  It is not unusual for these  districts to  be formed
under the Reclamation Act of June 17, 1902, which provides basically  for

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 federal planning.  Quite often, when there is a dam built by the Bureau of
 Reclamation, the benefits are distributed throughout the area and the respons-
 ible local entity is a conservancy district.

 Mater User Organizations Activities Related to Irrigation Return Flows

     Organizations of water users, whether of the company or district type,
 must comply with the same standards of beneficial use applicable to indivi-
 dual appropriators.  There are, however, additional conditions of water use
 due to the nature of the organization.  In the case of irrigation companies,
 particularly those organized under the corporation code of the state, there
 is the responsibility of the board of directors to their shareholders in the
 performance of their duties to carry out the objectives of the company.  Most
 often, the water rights held by the company are owned by the shareholders
 (Jacobucci v. District Court in and for the County of Jefferson, 541 P.2d 667,
 Colo. 1975) and the company is responsible to conduct itself so as to not
 place these rights in jeopardy.  As a practical matter, however, the compan-
 ies usually deliver the shareholder's water entitlements to the latter's
 headgate or field, and does not engage in water management in terms of insur-
 ing that an efficient use of water is being made.  Occasionally, restrictions
 on use and transfer of water on shares in the company can be found in the
 by-laws or on the stock certificates.

     Irrigation districts are on a slightly different footing than the private
 irrigation and carrier companies.   These organizations are either held to be
 of a public or quasi-public nature and thus have a higher degree of account-
 ability.  They can levy assessments to recover construction, operation and
 maintenance costs and as such can, and often do, refuse delivery of water
 until assessments are paid.  But,  like the private water companies and asso-
 ciations,  they traditionally have not been control and management oriented.
 Their main functions are to collect and/or divide and distribute the water
 supply to  the district water users, operate the structures, and in many cases
 assist in  or construct a drainage system within the district boundaries.   It
 has been maintained by some irrigation districts in Washington and Oregon
 that their functions do not include responsibility for water quality control
 in terms of directing the manner in which water is applied.  In no state's
 irrigation district laws has there been found provisions imposing a duty to
 prevent water quality degradation  from water use practices.

 Status of  Irrigation Organizations in the West

     In 1946, Israel son and others published the results of a survey of irri-
 gation companies in Utah.   Data were obtained from 688 separate companies.
There is no legal  limit to the minimum land size of an irrigation company as
seen by the fact that 179 of the 688 companies serve areas of less than 300
acres,  some even less than 100 acres.   The other 509 serve areas larger than
300 acres, the largest one serving approximately 50,000 acres.   To staff the
688 separate companies in Utah requires the services of 2,606 officials.
Although water delivery and distribution is considered to be largely an
engineering problem,  only 69 of the 688 companies regularly employed an
engineer.   The importance of water rights  is evidenced by the fact that 167
of the 688 companies  regularly employed attorneys.

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     Table 3 shows a comparison in the number of irrigation organizations for
five western states and totals for the seventeen western states  and  Louisiana.
It is interesting to note the decrease in all  organizational  sectors over the
10-year period with the exceptions of fluctuating changes in the number of
irrigation districts and U.S. Bureau of Reclamation projects.  At the same
time, the 1969 Census reflects a substantial  increase in acres irrigated by
the water organizations during this time.

     These irrigation organizations have a high degree of interrelationship,
transferring water from one to another to complete distribution  from natural
sources through direct diversion or storage facilities to on-farm use.  For
example, of the 8,479 irrigation organizations accounted for in  1959, five
percent received part of their water from another organization and eight
percent received all their water from other organizations.

     Although the organizational framework for constructing the  early canal
systems offered a very practical means for developing irrigated  agriculture,
the lack of change after completing this development has resulted in a number
of present-day problems.  The addition of each canal usually resulted in the
formation of a new irrigation enterprise with the result that many irrigated
valleys in the West have a multitude of entities managing the delivery of
water in the valley.  Problems involving the lack of cooperation among the
various entities in bringing about improved water use efficiency appear to be
inherent among many groups.  In addition, the duplication of water delivery
systems has resulted in higher costs for irrigation system rehabilitation,
increased operation and maintenance costs, and greater water losses  such as
seepage, operational bypassing or spillage, and surface and subsurface return
flows.

     The historical roots of irrigation system developments in the West, along
with the emerging needs for meeting large-scale organizational objectives,
make it imperative to consider technological  alternatives for improving a num-
ber of cumbersome water use systems.  Alternatives for improvements  include
lining of canals to prevent seepage losses and transpiration by  phreatophytes;
installation 
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                                    TABLE 3.  COMPARISON OF NUMBER AND TYPES OF IRRIGATION  ORGANIZATIONS*  IN THE WEST.
State
Year
Total
Unincorporated
Incorporated
Commercial
1 rrigation
District
U.S. Bureau
of Reclamation**
U.S. Bureau
of Indian Af fai rs
Arizona
Colorado
Nevada
Utah
Wyoming
J7 States
£ Louisiana
1969
1959
1950

1969
J959
1950

1969
1959
J950

J969
1959
1950

J969
J959
J950

J969
J959
J95Q
   135
   155
   163

  ,752
  ,933
  ,302

   110
   H6
   157
   957
   984
 1,058

   705
   686
   693

 7,927
 8,749
1Q.49J
   44
   42
   61

1,170
1,261
1,579

   67
   61
   90

  246
  316
  406

  5J6
  521
  538

4,266

e!464
   38
   34
   37

  546
  642
  686

   33
   42
   47

  686
  651
  634

  139
  113
  120

2,586
2,737
2,884
  6
  4
  6

  1
  1
  2

  5
  1
  2

  3
  1
  2

208
246
401
 24
 15
 12

 18
 14
 20

  2
  4
  4

  4
  8
  5

 35
 37
 27

469
558
483
 2
-1
-1

12
 7
 5

57
54
37
 19
 59
 48

  1
  2
  1

  3
  8
 14

  1
  2
  3

  1
  6
  1

 56
123
141
(Data from Summary Table 7 -~ Number of Irrigation  Organizations  and Acreages  Irrigated by Type of Organizations, 1920-1959, U.S. Bureau of Census,
U.S, Census, of Agriculture, J959,  Vol,  III,  Irrigation  of  Agricultural  Lands,  and Table 34, Reported Purposes of Operation by Type of Irrigation
Organization;  J959, Vol,  (V, Irrigation,  J 969 Census of Agriculture, U.S, Department of Commerce, July 1973).
      * Irrigation organization is defined hy the Census  Bureau as a  business comprising a group of two or more water users, a company, corporation,
or governmental district or agency that operates  facilities  to supply water  for  the  irrigation of farm and ranch lands, being either a formal,  legal,
organization, or an informal or cooperative arrangement,

     ** U,S,B.,R, constructed and operated organizations.   In  3969, there were 259 U.S.B.R. constructed, user-operated projects.

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                                 SECTION 7

                      ISSUES, CONCERNS AND SOLUTIONS


     A recent study prepared for the Environmental Protection Agency has
concluded that crop production from saline soils has been reduced on one-
quarter of the approximately forty-three million acres of irrigated land
in the seventeen western states, with salinity threatening the use and pro-
duction of an additional twenty-five percent (Skogerboe and Law, 1971, p. 134),
Aside from the detrimental effects to agriculture in the region, water pollu-
tion from irrigation return flows has greatly contributed to the costs of
using water by other sectoral users in the several western river basins and
to the rise of international tensions under treaty commitments between Mexico
and the United States on the Colorado River.  A special commission was cre-
ated to appraise the problem and advise the President on possible approaches
to resolving the issue.   The Colorado River Basin Conference was convened to
analyze the situation and make recommendations to control the salinity in the
Basin.  It was concluded that salinity will be maintained at or below present
levels in the lower reaches of the Colorado River.  In August, 1973, an agree-
ment was reached between Mexico and the United States whereby the United
States agreed to construct a desalting plant and drainage system to the Gulf
of Mexico, to remove salt from the Colorado River adversely affecting 75,000
acres of irrigated land in Mexico.

     Although the problem is physical  and demands at least a technical solu-
tion, many of the underlying causes to the problem stem from the institutional
framework Rroviding, permitting and directing the use of water resources in
the West.  Uhat, how and why the law and its appendages affect irrigation re-
turn flow quality control summarize the major concerns of those charged with
managing water quality.

     The law changes rapidly with every judicial decision and legislative
enactment as they respond to the social, political and economic pressures of
the system within the geographical jurisdiction or area of influence.   Water
rights are being transferred to other users and uses, and frequently such
transfers have a direct impact on the rate of discharge in the waterways.
These changes may or may not have favorable effects upon irrigation return
flow quality control.

     In Colorado, western slope water rights obtained by eastern slopemunici-
palities and industries, when exercised through transbasin diversions, aggra-
vate the salinity problems in the Colorado River by reducing the assimilative
capacity of the stream flow.  Conversely, some actions come to the aid of the
salinity control program.  The Colorado Supreme Court's decision in City and
County of Denver v. Fulton Irrigation Ditch Co.. 506 P.2d 144 (Colo, 1972)

                                     80

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reduced the city's pressure to divert western slope waters to meet the needs
of the residents by allowing Denver to recycle and reuse foreign waters ident-
ified and recaptured.  A decision to the contrary in the Denver case may have
been detrimental to any attempts to develop and implement a comprehensive
approach to salinity control in the basin states.

     The present system of water allocation, distribution, administration,
and water right adjudication and operation practiced in the majority of
western states does contribute substantially to the irrigation return flow
quality problem.  By law, a water right can be reduced or lost through non-
use.  Consequently, this disincentive compels appropriators to divert and
apply the entire quantity provided for in the right, even though this prac-
tice may lead to drainage problems and adversely affect downstream users.
The law further stifles any initiative to install water-saving practices
in certain states by preventing the use of saved water on other lands or for
other purposes.  Under these and other legal constraints that exist in the
water laws, farmers have no economic incentive to alter their present prac-
tices for improved techniques.

     These issues and concerns can be classified into three general  categor-
ies:  adequacy of the legal provisions, the extent and authority and/or juris-
diction of water agencies, and the effect of the changing socio-economic
conditions and demands.  The categories are difficult to discuss as separate
items due to their interrelationship and interdependence, but subtopics have
been isolated to identify the components more precisely.

     Nearly every national water resources commission study conducted during
the past fifty years has identified the inadequacy of legal provisions as one
of the contributing factors to problems experienced in the West.   Isolating
the wide range of water problems that can and do exist in this region to
those related to irrigation return flow quality, water policies,  water rights
and legal  classification of waters stand out as benchmarks.  In most of the
seventeen western states, the water laws have definite statements of policy
for water quantity regulation and water quality control.  The statements,
however, pose a problem because they:  a) generally lack sufficient speci-
ficity to provide guidelines for state water agency administrators;  b) often
fail to recognize the interdependence of water use and resulting degradation
of return flows; and c) do not require that existing problems caused from
established economies be realized in a pragmatic and cooperative venture by
the state and the water users.

     Past practices have clearly been to ignore policy statements or to
expound very general statements of intent.   The issues and problems  emerging
in the rapidly developing and complex water use systems of the West do re-
quire more specificity for administrative guidance.   Action by hunch or
default is becoming tantamount to arbitrary or conscious action or even
worse—negligence in performing duties.

     The next key subtopic focuses upon the nature of allocating water in
the West—the property right in water.  As J.  Bentham noted in 1864, "there
is no image, no painting, no visible trait which can express the relation
that constitutes property.  It is not material, it is metaphysical;  it is a

                                     81

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mere conception of the mind	   The idea of property consists  in an estab-
lished expectation" (from Bentham, Theory of Legislation,  Principles of the
Civil Code, Part I, pp. 111-113;  Dumont (ed.),  Hieldreth,  Trans., 1864, re-
printed in J.E. Cribbett, elt al_., Cases and Materials on Property,  I960, p.4).
Under the doctrine of prior appropriation that  exists in every  one  of  the
seventeen western states, this mere conception, this established expectation,
is so strongly ingrained into the way of life of the water users that  any
effort to alter water use patterns must start from the premise  that change
will not materially impair the water rights of  those wishing to continue to
use the water under the conditions that existed previously, so  long as they
put the water to beneficial use.   In other words,  it is politically, econom-
ically and socially imperative to recognize the need to protect the vested
water rights.  A proposal to abrogate the existing water rights would  cause
such polarization against the government that decades would have to pass
before a decent rapport could be  reestablished  between agricultural water
users and the government agencies.

     This said, let us look at how the topic of property rights in  water has
become so elevated in the eyes of those concerned  and what might be done.  As
a result of the constitutional guarantees in the United States  to recognize
and protect property interests, and the adoption in the West of the concept
that a water right is a property  right, generations of water users, particu-
larly in the agricultural sector, have established a livelihood highly
dependent upon the continued right to a water supply according  to the  prio-
rity of the right, condition of the source of supply and adherence  to  the
requirements of the law in terms  of beneficially using the water, filing the
proper papers to obtain the right, etc.  With time, this allocation for use
of unappropriated public waters reached and exceeded the quantity of the
source of supply and the more junior appropriators would not be able to
divert during low flows.  However, among the water users,  this  was  accepted
as a fact of life, and only the more daring would  attempt to "borrow"
another's water.  If caught, the  price paid was often high—a shooting or at
least social ostracism once it became known that "X" was a water thief.

     In the lasl few decades, a new demand has  been placed on the surface
waters—a demand by the public that the public  has an interest  and  right to
some of that water for aesthetic  and recreational  purposes directly and for
the support of fish and wildlife.  As has already  been discussed in Section 5,
those water users who receive water under a water  right have a  valuable prop-
erty right that must be exercised or else it could be lost or reduced. This
condition to maintaining the right often comes  in  direct conflict with the
public's interest in preserving some of the stream flow or lake level. It is
further compounded by water quality considerations, which have  only recently
been superimposed upon the arena  of regulations.

     Now, the irrigation water user is faced with  a situation not unlike that
of an angry badger in a corner pursued by several  hunting dogs. And fight,
or at least resist, he will as we have seen since  1973.  His situation is not
like the home owner in a city who turns on the  tap and expects  water,  and if
it fails to flow, he can call the city water supplier.  Nor is  it like the
majority of industrial enterprises who either get  their water from  a city or
are large enough to purchase water rights or maintain original  appropriation.

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Irrigation water users are by and large  individuals  with  a  fluctuating  income.
And among the number of external  factors affecting  his  annual  success or fail-
ure to make a decent living is the dependability of  his water  supply.   If  he
is a senior right holder,  or member of an irrigation/reclamation  project,  his
supply is normally fairly  stable.  If he is  a  junior surface water  user, he
normally has adjusted his  operation according  to the amount of water  (and
usually early in the growing season) that his  water  right will  yield.

     Because of the concept of a  property right  to divert water,  agricultural
economies have been established.   The rights granted are  perpetual  as long as
the water user complies with the  requirements  of the law.   Unfortunately,  the
records of water rights in most western  states do not reflect  current owners
nor have the "paper water  rights" been eliminated. But  nonetheless, the water
right is both the cornerstone and thorn  to efficient water  use in the West.

     The third subtopic under adequacy of legal  provisions  concerns the
classification of waters in the allocation process.   Most states  have or are
beginning to experience problems  associated  with ground water  use affecting
surface water supplies.  However, not many states have  legally recognized,
in policy statements or provisions of the law, the need for conjunctive use
of ground waters tributary to surface waters,  and fewer states have devel-
oped a viable program to tackle the problem  as it occurs.   The public water
management district of California, the augmentation  plan  of Colorado and the
retirement of surface water rights program of  New Mexico  are examples of the
range of approaches employed.
                                              ^
     The conjunctive use of ground and surface waters issue is important to
the irrigation return flow quality control problem,  because the trend is to-
ward more ground water withdrawal.  If,  as has occurred in  a number of  states,
the ground water withdrawals continue to decrease surface water flows,  a
concentrating effect will  result, and the quality of the  water decreases.
The policies and laws affecting surface  and  ground water  uses  and water qual-
ity control need to be reevaluated in light  of the physical interdependence
and impacts.

     The second general category  pertains to the organizational ability and
administrative capability  to enforce the water law provisions  and undertake
the badly needed shift from a traditional resource development orientation
to one strongly emphasizing resource planning  and management.   From a theo-
retical point of view, most state laws grant the water  agencies legal author-
ity and a variety of enforcement  tools (e.g.,  cease  and desist orders,  in-
junctions, terminating or  prohibiting diversion  of water  (exercise  of the
water right), etc.) to attack a known blatant  violation of  the law.  The
issue is not the availability of  enforcement procedures,  but rather the
placement of the burden to show violation, time  delay provisions  in legal
procedures which allow the violator to correct the situation and  nullify the
protest, then to reinstitute his  practice and  require a new protest, and a
prevailing attitude among  some water users that  theirs  is a right to use more
than it is a duty not to misuse the resource.  With  no  exception, the state
agencies administering water laws maintain they  are  understaffed, that  it  is
very difficult to enforce  such concepts  as beneficial use aside from allowing
the historical diversion authorized by the water right, and in most cases,

                                     83

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little enforcement is done except where a field official  recognizes  an  obvious
waste or misuse or that is reported to a state official  by another user or
observer in the area.

     Several western states have reorganized their water and other natural
resources agencies into Departments of Ecology, Environment or Natural  Re-
sources with separate resources divisions or bureaus thereunder,  or  have
combined most water activities into one main agency.  This facilitates  a
"resources" objective orientation as opposed to a sectorial or constitutional
orientation.  In addition, several states have created a water planning and/
or development agency or office.  But few states are organizationally or
functionally in a position to "manage" their water resources in an effort to
optimize the use in time and space.  In fact, the traditional  agency role
under the appropriation doctrine is relegated to allocation and distribution
of water.

     The final major issue is the effect of the changing socio-economic con-
ditions and water resources requirements upon past use practices  and existing/
established economies.   Increased water demands can only be met in many areas
throughout the West by allocation of surface waters or reallocation  and trans-
fer of existing water rights.  Further, increased demands stimulate  increased
scrutiny of existing uses and calls for increased efficiency in use  where
practices would decrease the volume of water diverted to those prior appropri-
ators.  The consequence would either be to reduce the amount divertable
under beneficial use interpretations or allow the water user to possibly
lease, rent or otherwise convey "saved or surplus" waters—this permissible,
of course, only where not prohibited by legal constraints or impairment of
vested water rights.

     A number of solutions to these issues and concerns  have been set out in
Sections 2 and 3 and described in various other sections  of the report.  The
intent here is to provide a classification of the solutions for reference.
In the irrigation return flow quality control arena, as  with other areas of
environmental^" impact, the range of solutions goes from preventative  to  cura-
tive.  In their formulation, the potential  solutions can  arise from  legis-
lative, judicial and administrative initiative and a composite of their joint
efforts.  Legislatures have a definite role in formulating policy objectives
and instituting innovative approaches to problems.   An alert and  progressive
legislature will devise solutions in the law that enable  pragmatic implement-
ations toward reaching the desired objective without creating  unnecessary
social disruption and infringement upon existing rights without compensation
or justification.

     The judiciary is the forum for action in resolving  disputes  and inter-
preting the law to changing conditions.  It is often the  judiciary that serves
as the stimulus for legislative action to rectify constraints  and inadequacies
in the law.  In addition to construing legislative law,  courts—particularly
in the case of water quality problems—must apply common  law remedies in
rendering a decision.

     We may be concerned with whether an irrigator is being negligent in the
use of his water to the point where his actions do not comply  with good

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management and use of the resource.   For example,  in  the  case  of  overapplica-
tion of water where he realizes that tailwater will result and he even observes
that the return of the tailwater to  his stream carries  with it considerable
sediment which subsequently causes damage to downstream users, the  issue  be-
comes whether his actions could amount to negligence.   The rules  of law in
this particular area are concerned with what is legal cause.   First,  it is
necessary to show that there is an adequate causal  relation, that is  "in
order that a negligent actor shall be liable for another's harm,  it is
necessary not only that the actor's  conduct be negligent  toward the other,
but also that the negligent actor be a legal cause  of the other's harm"
(Restatement of the Law of Torts, Second. Section 430,  p.  426).   The
Restatement of Torts further states  that legal  cause  occurs if:   a) the
actor's conduct is a substantial  factor in bringing about the  harm; and
b) there is no rule of law releasing the actor from liability  because of  the
manner in which negligence has resulted in the harm (Restatement  of the Law
of Torts, Second. Section 431, p. 428).

     The situation with irrigation return flow in which there  can be  consid-
erable detriment caused by salinity, pesticides or  sedimentation  is one in
which many water users are normally  involved.   In this  particular case where
in fact their actions may be considered negligent,  there  is a  question of the
apportionment of harm.  Section 433a, Restatement of  The  Law of Torts, holds
that damages for injury is to be apportioned among  causes where either there
are distinct harms or there is a reasonable basis for determining the contrib-
ution of each cause to a single harm.  In explaining  this rule, the Restate-
ment provides an illustration:  "Due to the negligence  of A, B and  C, water
escapes from irrigation ditches on their land and floods  a part of  D's farm.
There is evidence that 50 percent of the water came from  A's ditch, 30 per-
cent from B's ditch and 20 percent from C's.  On the  basis of  this  evidence,
A may be held liable for 50 percent  of the damages  to C's farm, B is  liable
for 30 percent, and C is liable for  20 percent" (Ibid., p. 437).   The diffi-
culty, again, in the case of irrigation return flow is  in proving that the
defendant's conduct actually caused  the harm.   This burden of  proof is upon
the plaintiff.  Where there are several defendents  contributing to  the harm
of the plaintiff, and the plaintiff can prove that harm  has been caused to
him by only one of the defendants, but it is uncertain  which one  caused it,
the burden is upon each of the defendents to prove  that his action  did not
cause the harm (Ibi d., Section 433b).

     There are, basically, two remedies available to  one  injured  by pollution
of a stream.  The first is an award  of damages against  the wrongdoer  for  the
detriment sustained, and the second  is injunctive relief  (C.J.S., Section 53;
Barton v. Union Cattle Co., 44, N.W. 454, Nebraska).  In  defending  an action
for recovery of damages or an injunction for pollution, it is  no  defense  that
the plaintiff might have avoided the injury by taking precautions (Ravndale v.
North Fork Placers, 91 P.2d 368, Ida.), or that he  could  get his  necessary
supplies from another source (Wright v. Best,  121 P.2d  709, Calif.).  In
addition, in an action for pollution of a watercourse,  the surplus  of which
had been used by the plaintiff to irrigate his lands, it  is no defense that
the natural waters of the stream had been appropriated  to its  full  capacity
during the ordinary flow by other prior appropriates (Humphreys  Tunnel Co.
v. Frank, 105 P. 1093, Colorado).

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     There are several defenses, however, which may or may not apply.   The
first is assumption of risk.  In Klassen v. Central Kansas Co-Op Creamery
Asso. (165 P.2d 601, Kansas), the court held that the plaintiff does not
assume the risk for a situation of which he has no warning.  Neither can a
defendant maintain that he has not committed negligence and use this as a
defense to prevent the plaintiff from recovering, as it is no defense that
the business of the defendant is conducted in the usual manner with care
and skill and without intention to injure others.

     Estopel is an interesting defense which could be raised.  It was held
in Kentucky, however, that the fact that the pollution existed at the time
the plaintiff acquired the land does not stop him from maintaining an action
for damages, but will be considered in determining the equities of the case
(W. G. Duncan Coal Co. v. Jones, 254 S.W. 2 720, Kentucky).

     In order to recover from damages caused by pollution, the plaintiff must
show what injury actually occurred to his crops and the permanent injury to
the land along with the date when the injury took place and the annual injury
to crops prior to that date (Watson v. Colusa-Parrot Mining Co., 79 P.14,
Mont.).  Likewise, it was held in Carlsbad Irrigation District v. Ford (128
P.2d 1047, N.M.), that a plaintiff's remedy for an injunction is not lost by
the mere lapse of time such that the doctrine of laches would not prevent him
from bringing a suit to protect his rights.

     Administrative solutions may take many forms, but can generally be
described in terms of adopted agency rules and regulations, monitoring of
the resource use activities and enforcement of penalties against infractions
of the law.   Rarely, if ever, is an agency prohibited from developing  and
adopting rules and regulations to carry out their tasks.  Most of the  states'
water agencies have promulgated rules and regulations in areas of applications
for water rights, ground water drilling, pump installation, and pumping,
reservoir applications, construction and maintenance, etc.  To this writer's
knowledge, no state water agency has adopted rules or guidelines for seepage
losses in conveyance systems, application efficiencies, or rules for construc-
tion of drains and disposal of drainage waters.   Often, drain water can be
recaptured,  and mixed with other appropriated flows.

     In order to have an effective enforcement program, monitoring is  essen-
tial.   And,  in order to monitor, sufficiently spelled-out guidelines or cri-
teria for water delivery, use and residual  discharge  are highly desirable.
Again, however, monitoring for monitoring1s sake is a fruitless and wasteful
exercise.   Flexibility should exist to require monitoring, with at least water
user cost-sharing, only in regions or local areas where problems exist.   With
a proper data base, enforcement is much easier.

     Finally, it should be pointed out that water quality control,  with  sig-
nificantly degraded irrigation return flows incorporated therein, can  be more
successfully undertaken if the approach is  a composite and collective  activ-
ity of the legislature, judiciary and administrative  agencies.   In  this  way,
policies and programs can be formulated which respond to emerging pressures
on the resource base.
                                     86

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                                     89

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                                     94

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                                              APPENDIX  A REPORT 1

                                                    ARIZONA
1.1  HISTORICAL BACKGROUND

Arizona is commonly thought of as an arid state with
limited water resources for its 113,909 square miles.
Precipitation averages 14 inches per year with a range
of less than 10 inches in the desert lowlands in the
south and southwestern part of the state and plateau
uplands of northern Arizona, to pockets of 25 to 40
inches per year in the east central  part of the state.
Arizona is entirely within the Colorado River Basin
with principal rivers being the Salt, Verde, Gila,  and
Little Colorado.  Approximately 6.3 mgd of surface  and
ground water was diverted to the 1.2 million acres  of
irrigated land in 1970  (Geraghty, 1973; Kelso, 1973).
Given the arid to semi-arid nature of the state, the
water laws evolved to allocate the scarce supplies
between competing and conflicting users.

The common law doctrine of riparian rights was
rejected very early by the territorial legislature
(Howell's Code, Ariz. 1864, c.61 §7).  Adoption by
the territorial legislature of an appropriation law
followed quickly (Kinney, 1912, sec. 1711 & 1714),  by
a directive from the territorial Supreme Court in
Plough v. Wing (2 Ariz. 371, 17 P. 453, 1888),
rejecting the riparian concept and declaring that the
right to use water was governed by its appropriation
for a beneficial use.

Abrogation of the common law doctrine (specifically in
Austin v. Chandler. 4 Ariz. 346, 42 P. 483, 1895),
along with a recognition of existing rights for useful
and beneficial purposes was incorporated into the
state constitution (Ariz. Const. Art. XVII, Sec. 1
& 2).  Thus the appropriation doctrine is the exclu-
sive means of acquiring a water right in Arizona from
early statehood to the present.

In 1919 a comprehensive water code was enacted which
governed the appropriation of surface waters.
Application to appropriate had to be filed with the
state land department which was and still is the
exclusive procedure to obtain a water right (A.R.S.
§45-101 & 142).  Water may be appropriated for any
recognized beneficial use and water can be appro-
priated for delivery to others as well as for the use
by the applicant (A.R.S. 45-141).  water law legisla-
tion was also enacted in 1921, 1928, 1939, 1943 and
1956.

1.2  SUBSTANTIVE LAW

1.2.1  Property Right in Water

Arizona law states that the waters of all sources,
flowing in streams, canyons, ravines or other natural
channels, or in definite underground channels, whether
perennial or intermittent, flood, waste or surplus
water, and of lakes, ponds and springs on the surface
belong to the public and are subject to appropriation
and beneficial use (A.R.S.  §45-101 A. 1956).  They
are placed in trust under the state land department
which controls and supervises the water for the public
(A.R.S.  §45-102, 1956).

Any person, including the United States, the state, or
a municipality desiring to make beneficial use of
water must apply to the state land department for an
appropriation permit (A.R.S. §45-142,  Supp.  1972). '
All applications for an appropriation  permit for
beneficial use will be granted unless  there  is a
conflict with vested rights or the appropriation
would be against the vested interests  of the public
(A.R.S. 545-143A.).  The decision of the department's
commission relating to the appropriation permit is  not
appealable to the Supreme Court (Smith v.  Trott, 36
Ariz. 166, 283 P. 726, 1930).   The granting  of this
permit authorizes the applicant to immediately begin
taking steps to beneficially use the water requested
(A.R.S. §45-148).  This permit may be  assigned to
another person (A.R.S. §45-149}.  When work  to put
the water to beneficial use is completed,  a
certificate of right is issued (A.R.S. 545-152A.).

In Southwest Engineering Co. v. Erns.  (79 Ariz. 403,
291~F2d 764, 1955), the Arizona court  excluded
percolating ground waters from public  ownership and
exempted such waters from the appropriation  laws.
Percolating waters are a component part of the earth
and are the property of the owner of the overlying
soil (Gross v. HacCornack, 75 Ariz. 247, 255 P2d 183).
The landowner owns the water beneath the soil (Jarvis
v. State Land Development. City of Tucson, 104 Ariz.
527, 465 P2d 385, 1969).  The right that is  acquired
is a vested property right in the use of the water,
and not in the water itself (Adams v.  Salt River
Valley Water Users' Ass'n.. 53 Ariz. 374, 89 P2d 1060,
1939), but is a valuable right subject to ownership
and sale (City of Phoenix v. State ex. rel.  Conway, 53
Ariz. 23, 85 P2d 56, 1939).

The basis of the water right in Arizona is strictly
appropriative, which results in a usufructuary right
limited to a beneficial use (A.R.S. §45-1018).  This
right to use water is a valuable property right
subject to certain limitations.  A right is  a power,
privilege, faculty, or demand, inherent in one person
and incident upon another  ... a power of free action
(Black's Law Dictionary, 4th Ed.).  The right to use
water is a usufructuary right, i.e. the right of
enjoying a thing, the property of which is vested in
another.  Coupled with every right is a corresponding
duty.  Used in a context relating to water law, the
duty is to use the water beneficially or without
waste.  The term usufructuary must be limited by
defining one's corresponding duty to the water.  The
word "duty" is the correlative of a right.  Thus,
wherever there exists a right in any person, there
also rests a corresponding duty upon some other person
or upon all persons generally (Ibid).

A user cannot take more water than the quantity which
is specified in  his permit and is limited by the
beneficial requirement in Ariz. Rev. Stats.  45-101B.
1Note, however, that a legislative classification of
water as "subject to an availability to appropriation"
acts as a limit on rights to so acquire nonclassified
waters. (Bristor v. Cheatham. 75 Ariz. 227, 222 P2d
173, 1953).  Also that a long continued use of
seasonal water flowing in a canyon without objection
has been held to be a valid appropriation even
without a permit (England v. Ally Ong Hingt 105 Ariz.
65, 459 P2d 498, 1969).
                                                      95

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An appropriative right as stated earlier is a usufruc-
tuary right.  Usufructuary is defined as one who has
the usufruct or right of enjoying anything in which he
has no property (Cartwn'ght v. Cartwright, 18 Tex.
628).  It is the right of enjoying a thing, the proper-
ty of which is vested in another and to draw from the
same all the profit, utility and advantage which it
may produce, provided it be without altering the
substance of the thing (Hulford v. LeFranc. 26 Cal.
102).  Increasing the salinity of the water through
an over application of that water to the land would
be an alteration of the substance of the thing.  If
the user cannot use his water without altering the
substance, then the right to use the water may be
taken away.

The appropriator is entitled to a continuing right to
the use of such waters that have been appropriated,
but not beyond that reasonably required and actually
used (Arizona v. California. 56 S. Ct. 848, 298 U.S.
558).  This requirement amounts to a "duty of water,"
according to the user'? needs.

As stated earlier, water flowing in a natural stream
is not subject to private ownership.  Private rights
which do attach are strictly usufructuary rights to
take the water from the stream into physical posses-
sion and putting it to a beneficial use.  Private
rights of ownership do not attach to the corpus of the
water if it remains in the stream in its natural
state (England v. Oily Ong Hing. 8 Ariz. App. 374, 466
P2d 480  1968).Denial of private ownership in the
corpus of   flowing stream water is subject to the
existence and protection of valid private rights to
capture, possess, and beneficially use the public
waters.  The general rule of ownership in the west is
that one who diverts water pursuant to a valid right
of diversion and use becomes the owner of the parti-
cles of water.  However, in Slosser v. Salt River
Valley Canal Co. (A.R.S. 145-25-2  9), the Arizona
Supreme Court held that water in a running stream is
public property and continues to be such even when
the water has been diverted for a beneficial use.  The
water remains public property until it has actually
been applied to a beneficial use.  The court also
stated that, "our statutes do not recognize the right
of ownership of water, as distinct from its use or
application."

Irrigation rights in Arizona historically have had one
other peculiar feature:  that is,they were appurtenant
or attached to the land^o which the water right was
originally granted (A.R.S. §45-172).  This provision
was placed in the water law with the sweeping
changes that took place in 1919, and applies to
public domain and private property (Parker v. Mclntyre,
47 Ariz. 484, 56 P2d 1337 1936).  In effect, this
doctrine of appurtenance held that the water right
runs with the land, and once attached, it could not be
made to do duty on any other land, except where the
original land was washed away (Gillespie Land & Irr.
Co. v. Buckeye Irr. Co.. 75 Ariz. 377, 257 P2d 393,
1953), or it becomes impracticable to use the water
economically or beneficially on the original lands Qn_
re Determination of Relative Rights to Use of Haters^
of Pantano Creek. 45 Ariz. 156, 41 P2d 228, 1935).
This doctrine was greatly relaxed in 1962 to provide
that a water right could be severed from lands to
which it was attached for irrigation and other uses,
including recreation and wildlife purposes, without
loss of priority if 1) approved by the department;
2) no vested water rights would be impaired; 3) the
right was perfected and not lost by abandonment and
forfeiture.  If the water right is for lands within
an irrigation  district, the district's consent must
be obtained  (A.R.S. 545-172 L.,  1962).
                                                           1.2.2  Acquisition of Right
General--
The exclusive method of acquiring an appro-
priation right is through compliance with the
provisions set forth in section 45-142.   This section
states that:

      A.  Any person, including the United States,  the
          state or a municipality, intending to
          acquire the right to the beneficial use of
          water, shall make an application to the
          department for a permit to make an
          appropriation of the water.  The applica-
          tion shall state:
            1.  The name and address of the
                applicant.
            2.  The water supply from which the
                appropriation is applied for.
            3.  The nature and amount of the proposed
                use.
            4.  The location, point of diversion and
                description of the proposed works by
                which the water is to be put to
                beneficial use.
      B.  The application also shall set forth:
            1.  If for agricultural purposes, the
                legal subdivisions of the land and
                the acreage to be irrigated.
            2.  If for the power purposes, the nature
                of the works by which power is to be
                developed, the pressure head and
                amount of water to be utilized, the
                points of diversion and release of
                the water and the uses to which the
                power is to be applied.
            3.  If for the construction of a reser-
                voir, the dimensions and description
                of the dam, the capacity of the
                reservoir for each foot in depth, the
                description of the land to be submer-
                ged and the uses to be made of the
                impounded waters.
            4.  If for the municipal uses, the popu-
                lation to be served, and an estimate
                of the future population requirements.
            5.  If for mining purposes, the location
                and character of the mines to be
                served and the methods of supplying
                and utilizing the waters.
            6.  If for recreation or wildlife,
                including fish, the location and the
                character of the area to be used and
                the specific purposes for which such
                area shall be used.
      C.  The application shall be accompanied by
          maps, drawings and data prescribed by the
          department.

An appropriator has been judicially defined as one
who makes an application of public water on land he
owns, said  application to be for beneficial use
 (Gould  v. Haricopa Canal Co.. 8 Ariz. 429, 76 P. 598,
1904).  The appropriator is entitled to a continuing
right to the use of such waters that have been
appropriated, but not beyond that reasonably required
and actually usedfArizona v. California. 565 Ct. 848,
298 U.S. 558).

     An appropriation of water flowing on the public
     domain consists in the capture, impounding, or
     diversion of it from its natural course or
     channel and its actuaT application to some
     beneficial use  (Gould v. Haricopa Canal Co. 8
     Ariz.  429, 76 P. 598, 1904),
                                                       96

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An appropriation was further defined by an early court
as the intent to take, accompanied by some open,
physical demonstration of the intent, for some val-
uable use and consummated without delay (Clough v.
Wing. 2 Ariz. 371, 17 P. 453, 1888).  Added to this
are the requirements that the appropriated water be
a specified amount, diverted for a beneficial use
(State of Arizona v. State of California. 283 U.S.
423, 51 S. Ct. 522, 1931), and that only waters in
their natural, as distinguished from artificial condi-
tion are appropriable (Fourzan v. Curtis, 43 Ariz.
140, 29 P.2d 722, 1934). The appropriator acquires a
usufructuary right based on "first in time is first in
right," which means the first person appropriating the
water shall have the better right (A.R.S.§45-141 & 175).

In Arizona, the appropriation dates from the time a
purpose to make an appropriation was definitely
formed and actual work on a project had begun (A.R.S.
i45-142 &  148).   Mere notice of appropriation is
ineffective (Sullivan v. Jones. 13 Ariz. 229, 108
P. 476 1910).  The appropriator's right may "relate
back" to the initiation of appropriation when
diligence is exercised in applying appropriated water
to beneficial use (Maricopa County Municipal  Water
Conservation Dist. No. 1 v. Southwest Cotton Co.. 39
Ariz. 65, 4 P.2d 369 1931).  As a general rule, actual
construction on appropriation projects must begin
within two years after approval of the application and
must be completed within five years (A.R.S.§45-150).

Appropriation of public waters must be initiated by
filing an application with the department and will be
approved only if the application meets all statutory
criteria.  Once the water has been placed to a
beneficial use, the applicant must submit proof of
his appropriation in order to obtain a certificate
(A.R.S.§45-142, 143 & 152).  An application will be
approved unless the proposed application will conflict
with vested rights, is a menace to public safety, or
is against the interests and welfare of the public
(A.R.S.§45-143).

The state land department is authorized to determine
the state of conflicting claims to water rights (A.R.
S. §45-231).  Notice of investigation of the claims
must be published (A.R.S. §45-232), investigations
carried out (A.R.S. §45-233), and notice of the
hearing given to the claimants (A.R.S. 145-234).  Upon
hearing all the evidence an administrative determina-
tion will be issued which is conclusive (A.R.S. §45-
240), unless a claimant exercises his right to appeal
this determination to the Supreme Court (Salt River
Valley Hater Users' Ass'n v. Norveil, 29 Ariz. 499,
242 P. 1013 1926).Upon final determination, a
certificate of right is issued (A.R.S. §45-241).

The criteria for approval is that the proposed right
must be for a beneficial use and not be in conflict
with a vested interest or the best interests of the
public.  An application may be approved for less
water than applied for but will not be approved for
more water than can be put to a beneficial use (A.R.S.
§45-143).  A permit may be assigned, subject to the
conditions contained in the permit (A.R.S. §45-149).

Under an approved application, construction of works
must begin within two years after the approval of
the application (A.R.S. §45-150).  Construction must
be prosecuted with reasonable time, not to exceed
five years from the date of approval.  If good cause
can be shown an extension may be granted by the
department beyond the initial five year period (Ibid).
Once the water has been placed to a beneficial use,
proof of appropriation is submitted to-the department
and a certificate is issued which sets forth the
details of the water right (A.R.S. §45-154).

An applicant or any person whose rights are affected
by a decision of the department may appeal  to the
superior court within 60 days after the decision.
The superior court may modify a decision of the
department if the department has abused its authority
(Ibid).  The courts review is limited to matters which
were within the jurisdiction of the department to
decide initially, and the right of a prior appropria-
tor to appeal a department decision is limited
because approval of a junior application cannot
adversely affect a prior vested right (Ernst v.
Superior Court of Apache Co., 82 Ariz. 17, 307 P.2d
91171957).

Once an adjudication of water rights has been
initiated, the department makes a hydrographic survey
of the water source, reviews claims and takes
testimony (A.R.S. §45-231).  A proposal is then
submitted to the court and if a user objects to the
department's proposed determination of individual
rights, the court will make the actual adjudication
of the rights (A.R.S. §45-239).

Eminent domain is granted to the owner of irrigable
lands for the construction of a canal across the lands
of another (A.R.S. §45-201).  Corporations owning
canals and reservoir systems must, to the extent of
available capacity, carry water to the other users
upon payment of carriage charges (Whiting v. Lyman
Water Co.. 59 Ariz. 121, 124 P. 2d 316 19421.

In 1974, Arizona enacted a potentially major addition
to their water laws for improving the management
capability of the state.2  This law, called the Water
Rights Registration Act, requires all persons using
or claiming the right to withdraw and use public
waters to file a statement with the state land
department by June 30, 1977, claiming such water right
(A.R.S. §45-181 A.L. 1974).  Water right users whose
permits or certificates are for water from the
mainstream of the Colorado River, or from contract
with the United States, court decree or adjudication
are not required to comply with this law.  A
registry of water rights claims will be established
containing the names of all claimants and dates
relevant to their claim.

Ground Water—
Ground water in Arizona has been classified as either
water in a definite and well defined underground chan-
nel, or as water percolating through the soil  (Howard
v. Perrin, 8 Ariz. 347, 76 P. 460,  1904; Maricopa
County Municipal Water Conservancy Dist. No.  1 v.
Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369, 1931).

Waters in a definite underground channel are subject
to appropriation in the same manner as surface waters
 2The legislative intent was expressed:  "The legisla-
ture recognizes that the future growth and development
of the state of Arizona is dependent upon effective
management and efficient use of the water resources of
the state.  The purpose of this act is to provide
adequate records for efficient administration of the
public waters of the state and to cause a return to
the state of any water rights which are no longer
exercised by putting such waters to beneficial use."
                                                      97

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of a watercourse  (A.R.S.  §45-101).  Percolating ground
water  is not public water subject to the appropriation
doctrine and is considered as property of the owner of
the soil (State v. Anway, 87 Ariz. 206, 349 P.2d 774,
1960).  The doctrine of water law applied to this cate-
gory of water  is  called the doctrine of reasonable
use.   The owner of the property must use the ground
water  supply underlying his land in a reasonable man-
ner with respect  to his use and other users in the
area (Bristor  v.  Cheatham, 75 Ariz. 227, 255 P.2d 173,
1953).

A critical ground water basin is a ground water area
not having sufficient ground water to provide a
reasonably safe supply for the irrigation of culti-
vated  lands within the basin at current rates of with-
drawal (A.R.S. §45-313).

What is a reasonable use  of ground water depends upon
such factors as the persons involved, the nature of
the use, and examination  of all the facts and circum-
stances pertinent to the  issues, and a decision of
whether the water is being taken in connection with
a beneficial enjoyment of the land from which it is
taken  (Bristor v. Cheatham. 73 Ariz. 228, 240 P.2d
185, reversed  on  other grounds, 75 Ariz. 227, 255 P.2d
173).  The law also prohibits wasting water from
existing wells (A.R.S. 545-319).

Prescriptive Water Rights—
A use  of water does not become adverse until a super-
ior right is infringed upon, and the owner suffers
a deprivation  of  water.   Egan v. Estrada (6 Ariz. 240,
56 P.  721, 1899)  held that if the above did occur
then the adverse  user was entitled to a prescriptive
right  from the continuous adverse use for the full
period of limitation.  The adverse user must show
that his use was  exclusive of any use by the rightful
owner  (Mullen  v.  Gross. 84 Ariz. 207, 326 P.2d 33, ,
1958), and that 
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a reasonablly efficient use, the antithesis of waste.
This seems to be fairly easy to comprehend, but the
Arizona Court of Appeals clouded the definition by
its decision in Salt River Valley Water Users'
Association v.  Kovacovich (3 Ariz. App. 28, 411 P.2d
201, 1966).In that case the court held that a land-
owner who had instituted water saving practices on his
land had no right to use that water which was saved on
adjacent ground.  The water saving practices included
improving and concrete lining ditches.  These prac-
tices resulted in a conservation of water and con-
trolled weed and vegetation growth along the ditches
and reduced maintenance costs.  Therefore, the right
of an appropriator is limited to that quantity of wa-
ter which can be beneficially used, and the "court is
of the opinion that the Doctrine of Beneficial  Use
precludes the application of waters gained by water
conservation practices on lands other than those to
which the water was originally appurtenant" (Ibid.,
411 P.2d at 206).

It was observed by the court that if they accepted the
position of the irrigators who instituted the water
saving practices, this could allow the water users to
let the land with the water right lie fallow, and use
the water on other land.  The court stated that,
however commendable and beneficial to the soil, and
regardless of the economic and conservation gains from
water saving practices, these practices do not
justify altering the water law doctrine in the state.
Specifically, the court went on to say:
    Any practice, whether through water saving proce-
   dures or otherwise, whereby appellees (water users)
   may in fact reduce the quantity of water actually
   taken inures to the benefit of other water users
   and neither creates a right to use the waters
   saved as a marketable commodity nor the right to
   apply same to adjacent property having no appurte-
   nant water rights.  It is believed that any other
   decision would result in commencement of return to
   the very area of confusion and chaos which gave
   rise to the development and application of the
   concept of beneficial use (Ibid, 411 P.2d at 206).

As a result of the decision, a user could only appro-
priate an amount of water that can be beneficially
used upon the land to which the water is appurtenant,
but in practice this amount may be less than the
maximum amount of their appropriation if an efficient
delivery system is subsequently constructed.  The
appropriator cannot take the excess waters and
beneficially use them upon other lands.

Does the Kovacovich decision mean that the carriage
water in Arizona ditches will go to waste even though
it is worth saving?  If the diligent irrigator  cannot
use the water which is saved through his water saving
practices, then presumably he will continue his waste
by not lining his irrigation ditches.  If the water
which is saved cannot be used by the person lining the
ditch, it will  continue downstream as positive
externality to other users.  Theoretically, downstream
users might pay the upstream user to line his ditch
in order to gain water for their appropriations.  But
in practice, the decision does not provide an incen-
tive for increased efficiency in water delivery and
use.  The court said Kovacovich could have applied for
a permit for the "saved waters," which in theory
sounds practical.  But the right to use this water
would have a priority date no earlier than when the
saved water was put to beneficial use (1933), or when
the application was filed.  It would not be the early
date of the original water right.  The consequence in
water-short Arizona would be a nearly worthless water
right.
Waste Water--
Waste water is that water which results from excessive
diversions or applications and accumulates in tail-
water control ditches at the ends of fields, barrow
pits, ponds along canals, or otherwise finds its way
back to the river, lake or underground waters.   They
are waters that are directed under the exercise of a
valid water right.  They are now lost under current
practices, but might be saved (Dewsnup, 1973).

When waste water runs upon the lands of another, a man
may capture and use it, but that is the extent of his
right (Wedgeworth v. Wedgeworth, 20 Ariz.  518,  18P
P. 952, T919).In Lambeye vTGarcia (78 Ariz.  178,
157 P. 977, 1916), the Arizona Supreme Court said
that a prior user can cease his use of water, alter
it, or temporarily suspend it without infringing upon
the rights of any person who subsequently uses the
waste water from the prior use.  The court went on to
hold that the plaintiff (waste water user) could not
prohibit an irrigation company from diverting waste
water from his premises, because the plaintiff had no
vested rights in such water, for it is within the
power of the irrigation company to conserve such
water even though it had not been personally
recaptured by the appropriator from whose land the
plaintiff had originally received it.

Thus, subsequent users of waste water cannot complain
if this source is curtailed or eliminated.  If the
subsequent users could establish legal rights in the
source of supply of such waste water, it would freeze
the pattern of use of the prior user so as to
prevent him from changing, modifying, or otherwise
adopting a more efficient method of using the water.

To encourage users to be efficient and to prevent
waste, Arizona law provides that "a person is guilty
of a misdemeanor who wilfully wastes water to the
detriment of another" (A.R.S. *45-109).

1.2.5  Manner in Which Rights Mayjie Adversely
       Affected

Forfeiture and Abandonment—
When the owner of the right to use water fails to use
the water for five successive years, the right ceases
and the water reverts back to the public and is sub-
ject to appropriation (A.R.S. §45-101c).  In Gil a
Water Co. v. Green (29 Ariz. 304, 241 P. 307,^1925),
the Arizona Supreme Court distinguished between aban-
donment and forfeiture.  Abandonment requires an in-
tent to abandon the right coupled with an actual
nonuse.  Such intent can be found in the declarations
of the appropriator or by his acts (Gould v. Maricopa
Canal Co.. 8 Ariz. 429, 76 P. 598, 19047:

The intention of the user is not an essential element
of forfeiture, thus  there can be a forfeiture against
the intentions of the user.  Nonuse of the water
during the statutory period is the governing factor
(A.R.S. §45-101c).

Adverse Possession—
A use of water cannot become adverse unless it in-
fringes on a superior right and actually deprives the
superior owner of his water.  Prescriptive right will
arise only by a continuous adverse use for the full
period of limitation (6 Ariz. 248, 56 P. 721, 1899).
The use must be open, notorious and adverse (Gross v.
MacCornack. 75 Ariz. 243, 255 P.2d 183, 1953), and the
adverse user has to show that his use was exclusive of
any use by the rightful owner (Mullen v. Gross, 84
Ariz. 207, 326 P.2d 33, 1958).
                                                       99

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Condemnation--
In a context relating to real property, condemnation
is a process by which the property of a private owner
is taken for public use, without his comment, but up-
on the award and payment of just compensation (Jones
v.JJklahoma City. 192 Okl. 470, 137 P.2d 233).   Water
rights may be condemned where a chance is contemplated
in the use of appropriated water.  A preferred user
may condemn a prior right of a lower or non-preferred
use if just compensation is paid.

Enforcement of Beneficial Use or Waste Concepts—
An appropriator is limited to the quantity of water
specified in his permit that is being beneficially
used and any unused water is subject to the forfeiture
statute.  Beneficial use is the "basis, the measure
and limit to the use of water" (Ariz. Const. Art. 17,
Sec. 2).  It follows that no appropriation is valid
unless it is pursuant to a beneficial use (Clough v.
Wing, 2 Ariz. 371, 17 P. 453, 1888; Gould v. Maricopa
Canal Co. 8 Ariz. 429, 76 P. 598, 1904J State~oT
Arizona v. State of California, 283 U.S. 423, 51 S.
Ct. 522, 193T; MnitTnq v.  Lyman Water Co., 59 Ariz.
458, 129P.2d 995, 1942).Beneficial use was defined
by statute in 1974 to "include, but is not limited to,
use for domestic, municipal, recreation, wildlife,
including fish, agriculture, mining, stock watering
and power purposes" (A.R.S. §45-180, L. 1974).

It is public policy of Arizona to make the largest
possible use of the water within its boundaries (Pima
Farms Co. v. Proctor. 30 Ariz. 96, 245 P.  369, 1926TT
To this end, the superintendent of each water district
is charged with regulating waters within his district
to apportion the resource according to right and to
prevent waste (A.R.S. §45-106 (4), 1956).   An early
court decision held that an irrigation company could
conserve surplus or wasted water as there was no
vested property right in this unappropriated water
(Lambrey v. Garcia. 18 Ariz. 178, 157 P. 977, 1916;
Hedgvrorth v. Wedgworth. 20 Ariz. 518, 181  P. 952,
1919).However, the picture was clouded by the
Kovacovich decision holding that waters gained by
conservation practices was to be applied only to the
land to which it was originally appurtenant (Salt
River Valley Water Users'  Ass'n v. Kovacovich. 3
Ariz. App. 28, 411 P.2d 201, 1966).The net result
being, seepage losses nay be reduced, but excessive
amounts of water may end up being applied on the land,
a substitution of seepage for deep percolation and
tailwater runoff.

1.2.6  Legal incentives and Disincentives for More
       Efficient Water Use Practices

Irrigation Return Flow—
Return flow waters are those waters which return to a
natural stream after use,  and which may become subject
to vested rights of downstream users.  Irrigation
return flows occur from deep percolation from the
over-application of water to the land, seepage from
conveyance systems and tail water runoff.

In Arizona Copper Co. v. Gillespie (100 P. 465, Ariz.
1909), the court stated that under the doctrine of
appropriation of water, he who is the first in time is
the first in right, and so long as he continues to
apply the water to a beneficial use, subsequent
appropriators cannot deprive him of the right of his
appropriation, either by diminishing the quantity  or
deteriorating the quality.  A downstream senior
appropriator is entitled to have the stream flow in a
sufficient quantity to satisfy his appropriation.
Thus an upstream junior appropriator cannot use water
if that use would deprive the downstream senior of the
appropriated quantity.

In Gillespie Land and Irrigation Company v. Narramore
(93 Ariz. 67, 378 P.2d 745, 1963), the Arizona
Supreme Court held that where a junior appropriator,
who sought to modify a decree to allow refusal
of water into its canal  when mineral  or salt con-
tent was excessive, failed to prove that salinity
would injure or damage land so that raising crops
would be materially affected, even though the salin-
ity had increased since the time of the prior
decrees.

The waters from both parties were taken into a canal
from a dam.  The waters were carried from the canal
to Gillespie land and Marramore's water was diverted
from the canal into a wash and to Narramore's ditch.
In this case, upstream activities coupled with a
drought cycle contributed to the decreased flow of
the Gila River and increased its salinity.  Evidence
indicated that during periods of low flow almost all
the water in the river came from tail or waste
waters.  During this period the saline content became
critical.  Evidence adduced at trial indicated that
when the salts became 65% sodium chloride it was
classified as irrigation sewage and not as irrigation
water.  In this instance the plaintiffs did not show
damage to crops and the court held for the defendants.

Arizona has no statute which allows an appropriator
to reclaim used water nor any statutory command for
an appropriator to conduct surplus water back to the
stream from which it was taken.  It has been
recognized that:

     not all irrigation water in excess of consumptive
     use is lost to the system.  In many cases the
     water is returned to the stream as stream flow or
     it serves to recharge ground water and excess wa-
     ter is needed in almost all irrigated areas to
     leach salts from the soil (National Water Commis-
     sion, Hater Policies for the Future, p. 305,
     1973).

Salvaged and Developed Waters—
In Salt River Valley Water Users' Association v.
Kovacovich (loc.  cit.), the Arizona court held that an
appropriator who practiced water saving practices by
lining his ditch was not entitled to use the water
which was saved.   Fortunately, the Kovacovich decision
is not the majority opinion among the western states
(see Little Cottonwood Water Co. v. Kimball. 76 Utah
243, 289 P. 116.  1930; and Glen Dale Ranches. Inc. v.
Shaub. 94 Ida. 585, 494 P.2d 1029, 1972, penalizing
a water user for losses in his delivery system).

Provisions for Transfer of Water Rights and Diversions
Under the law of 1919, water rights in Arizona
were made appurtenant to lands specified in the
water right except that a transfer to other lands
would be permitted where it became beneficially or
economically impracticable to continue irrigating on
the original lands (A.R.S. §45-172).   The law was
relaxed in 1962 to provide that a water right may be
severed from the land to which it is appurtenant and
transferred to other uses without a loss of priority
(A.R.S. 545-172,  1974).  A change application must be
filed with the department and after notice and a
hearing the department will approve of the transfer
if other vested rights are not affected.  The section
also provides numerous conditions for changes of
irrigation rights within district borders:
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   No such severance or transfer of water rights
   shall be permitted or allowed from lands within
   the exterior boundaries of any irrigation district,
   agricultural improvement district or water users'
   association without first having obtained the writ-
   ten consent and approval of such irrigation
   district, agricultural improvement district or
   water users' association.

   No right to the use of water on or from any water-
   shed or drainage area which supplies or contributes
   water for the irrigation of lands within an irriga-
   tion district, agricultural improvement district
   or water users'  association shall be severed or
   transferred without the consent of the governing
   body of such irrigation district, agricultural
   improvement district or water users' association.
   All proposed applications for the severance and
   transfer of a right to use water of or from any
   watershed or drainage area which supplies or
   contributes water for the irrigation of lands with-
   in any irrigation district, agricultural improve-
   ment district or water users' association shall be
   submitted to the governing body of such irrigation
   district, agricultural improvement district or
   water users' association prior to the filing of
   such application with the department.  Within
   forty-five days  after the receipt thereof, such
   governing body shall reject or approve the pro-
   posed application.  Failure of such governing body
   to approve or reject the proposed application with-
   in forty-five days after receipt thereof shall con-
   stitute approval of the proposed application by
   such governing body.  No application for the sever-
   ance or transfer of a right to the use of water of
   or from any watershed or drainage area which sup-
   plies or contributes water for the irrigation of
   lands within any irrigation district, agricultural
   improvement district or water users' association
   shall be accepted for filing by the department un-
   less accompanied by the.written consent of the gov-
   erning body of such irrigation district, agricul-
   tural improvement district or water users' associa-
   tion to the proposed application or by satisfactory
   evidence that such governing body failed to either
   accept or reject the proposed application within
   forty-five days  after receipt thereof by such
   governing body.

   A severance and  transfer of an irrigation water
   right appurtenant to lands within the boundaries of
   an irrigation district to other lands within the
   boudaries of the same irrigation district for
   agricultural use may be accomplished by the
   exclusion of lands to which a water right is
   appurtenant from within the boundaries of an
   irrigation district, and the inclusion in lieu
   thereof of other lands within the boundaries of
   such irrigation  district.  Such severance and
   transfer of a water right shall require the consent
   of only the irrigation district within which the
   affected lands are situated and of the owners of
   the lands affected by the severance and transfer.
   No proceedings before nor approval by the depart-
   ment shall be required to accomplish such
   severance and transfer.

A natural waterway  may be used to carry such waters if
it can be done without causing damage or interfering
with the natural flow (A.R.S. §45-173).  One has the
right to change the place of storage or diversion if
other users' rights are not impaired (A.R.S. §45-232).
The source of supply can likewise be changed if the
quality of water is not lowered (Adams v. Salt River
Valley Water Users' Ass'n, 53 Ariz. 374, 89 P.2d 1060,
1939T

By setting on the public domain and making improve-
ments by developing and putting water to use,  an
appropriator acquires an interest in the water which
is subject to conveyance {A.R.S. §45-233).

1.2.7  Hater Disposal and Drainage

Diffused surface waters have been characterized as
water falling upon the land from seasonal  rains or
melting snows (Kirkpatrick v. Butler, 14 Ariz. App.
377, 483 P.2d 790, 1971). Once these waters have
reached a stream or wash with a well-defined channel
a loss of identity occurs and the diffused surface
water becomes waters of the watercourse subject to
appropriation (City of Globe v. Shute. 22 Ariz. App.
282, 196 P. 1024, 1921).Prior to the water reaching
a natural watercourse, however, a landowner cannot
collect the diffused waters in an artificial channel
and discharge it in large quantities upon the land of
a lower landowner (Tucson v. Koober, 82 Ariz.  347,
313 P. 411, 1957).

When floodwaters escape their watercourse and flow
over adjoining land, the landowner may divert such
waters from his land as a common enemy (Gillespie
Land and Irrigation Co. v. Gonzalez. 93 Ariz.  152,
379 P.2d 135, 1963).The property of the lower
landowner is burdened with an easement in favor of
the upper landowner to receive those surface waters
which naturally drain from higher to lower ground
(Vantex Land and Development Co. v. Schnepf, 82 Ariz.
54, 308 P.2d, 1947).

1.3  ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS

1.3.1  State Water Agencies

General administrative supervision and control of
waters are placed in the state land department which
is headed by the state land commissioner:

   The state land department shall have general
   control and supervision of the waters of the state
   and of the appropriation and distribution thereof,
   except distribution of water reserved to special
   officers appointed by courts under existing judg-
   ments or decrees (A.R.S. §45-102).

To aid in the distribution of water the state land
department shall divide the state into water
districts, taking into account drainage watersheds
(A.R.S. 545-105).  This is done in order to secure
the best possible protection to water users and
insure the most economical supervision by the state
(Ibid).  A superintendent is appointed for each
district who regulates and controls headgates and
control structures (A.R.S. §45-1056).  It is a
misdemeanor to use water without a proper right or
to interfere with a proper distribution of water or
to open or close a headgate or control structure
without authority (A.R.S. §45-109).

The state land department also conducts investiga-
tions of water resources of the state to determine
their extent and potential development (A.R.S. §
45-103).  Supervision of the construction of dams
and reservoirs is placed in the hands of the state
water engineer, who is appointed by the Arizona Water
Commission (A.R.S. §45-505).  Before the construction
of a dam or reservoir may be commenced, written
                                                      101

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approval of the plans and specifications must be
obtained from the state water engineer (A.R.S. §
45-703).

Statutory provisions are available for the resolution
of water user conflicts (A.R.S. §45-231 to 245).  The
state land department may initiate a determination of
the various rights to the use of a water source,
either on its own initiative or upon a petition of
one or more users (A.R.S. §45-231).  Action can be
brought in a state court for an adjudication of water
rights but the court may transfer the matter back to
the department (Ibid).  Conclusion of adjudication
witnesses the issuance to each user of a certificate
evidencing his water right.   A procedure exists to
have a preliminary evaluation of existing rights in
relation to new appropriations at the time a water
right is initiated.  In order to approve a new filing,
the commissioner must find that the proposed use will
not interfere with other vested rights.  A prior
appropriator can commence injunctive proceedings
(Salt River Valley Water Users Ass'n v. Kovacovich,
3 Ariz. App. 28, 411 P.2d 201, 1966), to protect his
rights or sue for damages if he is deprived of his
water by another user (Lane v. Mathews, 74 Ariz. 201,
245 P.2d 1025, 1952).

The Arizona Water Commission prosecutes and defends
Arizona's rights and claims to interstate streams and
formulates plans and develops  programs for the
development and conservation of the waters of the
state in coordination with other state agencies
(A.R.S. §45-502).  The following public organizations
and districts may be created:  Agricultural Improve-
ment Districts (A.R.S. §30-101 to 228), Drainage
Districts (A.R.S. §45-1201 to 1396), Electric
Districts (A.R.S. §30-501 to 600), Flood Control
Districts (A.R.S. §45-2301 to 2370), Irrigation
Districts (A.R.S. §45-1501 to 1866), Power Districts
(A.R.S. §30-301 to 433), and Irrigation Water Delivery
Districts {A.R.S. §45-1901 to 1956).

1.3.2  Judicial Bodies

Arizona does not have special water courts.  The first
level of judicial bodies that deal with water law is
the superior courts where applicants appeal depart-
ment decisions.  The superior court receives the
department's evidence and order for judicial hearing
and review.  The department's determination remains
in full force during the court proceedings.

1.3.3  Water Users and Their Organizational Structure

Individuals—
This term denotes a single or natural person as .dis-
tinguished from a group or class, partnership, corpor-
ation, or association (Black's Law Dictionary, 4th
Ed.).  The purpose in providing for appropriation of
waters is to subject waters of the state to acquisi-
tion of rights of diversion and use by the public.
The word "persons" who may appropriate water includes
the United States, the state, or a municipality
(A.R.S. §45-142).

Companies—
A water company organized to divert and carry water
for irrigation without being the owner or possessor
of irrigable land does not become, by diverting and
carrying water from a stream, the appropriator of the
water (8 Ariz. 429, 76 P. 598, 1904).

Districts—
Water districts in Arizona include Improvement Dis-
tricts (A.R.S. §45-901 to 1047), Drainage Districts
(A.R.S. §45-12-01 to 1396), Irrigation Districts
(A.R.S. §45-1501 to 1866), and Irrigation Water
Delivery Districts (A.R.S. §45-1901 to 1956).

The purpose of Improvement Districts is set forth in
§45-903, which provides that when five or more holders
of title to agricultural lands within a United States
reclamation project, and these lands are susceptible
of irrigation, then such holders of title can  "secure
all or a portion of the water necessary to irrigate
the lands," provide for storage, regulation, control
or distribution of the water, provide for the
development of additional waters, provide for
drainage of lands, etc.

Irrigation districts organized under A.R.S. §45-1501
to U.S. 1866 are corporations of a public purpose,
and while subdivisions of the state, differ from
counties, and like political units in that they func-
tion for profit of the inhabitants; are purely busi-
ness and economic oriented, and do not have political
nor governmental purposes (Taylor v. Roosevelt Irr.
Dist.. 72 Ariz. 160, 232 P.2d 107, 1951).In  addition
to having rights and duties to deliver water to the
lands in the district, which is considered a proprie-
tary function, the district is liable for its
negligence in carrying out its duties (Ibid).

If there is insufficient water to supply all lands of
the district, then the board of directors have the
authority to provide for the distribution of available
waters in equal proportions (A.R.S. §45-1589).

Sections A.R.S. 45-1502 state that the district does
not have the authority to divert the water of a river,
creek, stream, canal or reservoir to the injury or
damage of any person or persons having a prior right
to such water, prior to such time as the amount of
the injury or damage has been ascertained and  paid to
the party who is injured thereby, in proceedings
under the laws of the state relative to the taking of
private property for public use.

Irrigation water delivery districts can be organized
whenever a majority of landowners of lands entitled
to, or capable of receiving, irrigation water from the
same ditch or conveyance system, wish to provide
delivery to their lands (A.R.S. §45-1911).  The
Irrigation Water Delivery District, provided for under
domain, can contract, can sue and be sued in its
corporate name, can acquire, hold and dispose  of all
real and personal property (A.R.S. §45-1902).
Failure to use irrigation water for five years or
more does not constitute abandonment or precipitate
a forfeiture of water rights as long as the district
taxes are paid (A.R.S. §45-1903).

1.4  POLLUTION CONTROL

Water quality control is vested in the State Depart-
ment of Health and the State Water Quality Control
Council (A.R.S. §36-1851 to 1868).  The Council can
adopt reasonable standards of water quality to
prevent, control, and abate pollution.  The Council
also establishes and enforces water quality standards
and issues orders regarding the control of irrigation
and drainage  waters.

REFERENCES

Dewsnup, R.L., D.W. Jensen, eds., A Summary-Digest of
State Water Laws, Report to the National Water Com-
mission, Washington, D.C., 1973.
                                                      102

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Geraghty, J., D.  Miller, F. Van der Leeden, and F.
Troise, Water Atlas of the United States, Water In-
formation Center, Port Washington, N.Y., 1973.

Kelso, M., W.E.  Martin, I.E.  Mack, Water Suppl1e_s_and
Economic Growth in an Arid Environment:  An Arizona"
Case Study, University of Arizona Press, Tucson, 1973.

Kinney,   Irrigation and Water Rights,  Bancroft and
Whitney, San Francisco, 1912.

Struckmeyer, F.C., J. E. Butler, "A Review of Rights
to Water in Arizona,"  Arizona Weekly  Gazette,
Phoenix, Arizona, Apri 1, 196fl,~a~44-page~ monograph.
                                                     103

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                                              APPENDIX A REPORT 2

                                                  CALIFORNIA
2.1  HISTORICAL BACKGROUND

The system of water in California is a complicated
mixture of riparian and appropriation rights doc-
trines, along with a few Pueblo water rights which
originated in Spanish and Mexican law, and which
give preference to certain municipal rights.1

Riparian rights, as recognized by the common law of
England, were accepted as a part of the common law of
California (Black's Law Dictionary, 4th Ed., 1968).
In 1850, which was the year of California's admission
to the Union, the legislature adopted the common law
of England as a rule for judicial decisions.  This
common law as adopted included the English water
rights doctrine of riparian ownership.  From 1855 to
1884, there were many judicial decisions on water
rights involving   riparian-type claims.  During
this period, riparian rights were upheld over diver-
sion claims, even for the use of water on nonriparian
lands and the requirement of continguity of land to
the stream for a riparian right was established.2

Even when the appropriation doctrine had been judic-
ially recognized in California (Irwin vs. Phillips,
5 Cal. 140, 1855), vested riparian rights were super-
ior to and could not be divested by appropriative
use, even though the appropriated rights were recog-
nized in many situations.  In 1884, the leading case
of Lux v- "aggIn (69 Cal. 255, 384-387, 4 P.919,
1884; 10P 675, 1885) established the supremacy of the
riparian doctrine by holding that the state had adopted
the doctrine of riparian rights as part of its common
law in 1850.  In Lux, the California Supreme Court
set forth the standards by which the two doctrines
could be applied in determining the priority of rights.
These were:  (1) the source of title to the lands; and
(2) the date of title to land, or commencement of water
use.  Appropriated rights were recognized on federal
lands and as between two users of water on federal
      *The Pueblo  right  is  a  recognition  of  rights of
 municipalities  under  Spanish and Mexican law to hold
 rights within the Pueblo for domestic, irrigation and
 other uses.  The  right  has a priority to certain uses
 which stems  from  the  municipality's  Pueblo  status
 under Spanish and Mexican  law.
      The Pueblo right extends to all surface and
 underground  waters of a stream  that  flowed  through
 the original Pueblo,  including  all waters from the
 source of the mouth of  such  a stream.  The  rights.
 are determined  by the needs  of  the inhabitants of
 the city.
      To have a  Pueblo right, the city must  have been
 a  Pueblo under  Spanish  or  Mexican law, there must
 be a need for the water, and a  use and there must
 be a judgment recognizing  Pueblo rights.  To date,
 only Los Angeles  and  San Diego  have  established
 Pueblo rights.  See San Diego vs. Cuyamaco  Hater
 Co.. 209 Cal. 152, 287  P.496, 1930;  and  Los Angeles
 vs.  Glendale. 23  C2d  68, 148 P.2d 289, 1943, for
 the cases settling for  the above principals.

      2See Pope  vs.  Kinman, 54 Cal. 3, 4-5,  1879,
 for a case upholding  riparian right  over appropriative
 right on nonriparian  land, and  Heinlen vs.  Fresno
 Canal & Irr. Co., 68  Cal.  35, 8P.513, 1885, for the
 requirement  of  contiguity  of land to a stream for a
 riparian right.
land, the first to commense use, has priority.3  No
riparian right would be recognized because there was
no private riparian land.  It was only after the land
passed to private ownership by patent, that riparian
rights could be acquired.  The rule was that, as
between a patentee of federal lands in a riparian
claim, and an appropriator, the dates of appropriation
and patent controlled.  Riparian rights were superior
only to those appropriated rights acquired after the
date of patent.  As to lands acquired by patent from
the state, the same general rule applied.  When
California was granted land from the United States,
it received riparian rights as an incident of that
grant, and these rights in return were transferred to
private patentees.  With the adoption of the California
civil code in 1872, the state provided a formal pro-
cedure for acquiring appropriative rights and waived
any superiority of the state's own riparian claims.
Thereafter, any appropriation perfected prior to a
patent from the state was superior to riparian claims
by the patentee.

A case decided in 1926 (Herminghaus v. So. California
Edison Co., 200 Cal. 81, 252 P.6Q7, 1926), in which
the California Supreme Court upheld a riparian claim
against that of an appropriator notwithstanding the
wastefulness of the riparian use, prompted the
Constitutional amendment of 1928 (Cal. Const. Art.
XIV, S3), which requires all uses of water in the
state to be "reasonable-beneficial."  This amendment
has no effect on the priority of uses, except where
a use would not be reasonable-beneficial as defined by
the courts.  So, as between appropriators and ripar-
ians on the same water course, riparians have paramount
rights except as limited in the case of Lux v. Haggin,
and in the grants of the land to California.Even
though the riparian user has a paramount right which
includes reasonable prospective use, an intervening
appropriative use is permitted pending future ripar-
ian use (51 Cal. Our. 2nd 635, Water, §176).  Thus,
the senior appropriator has rights to use to the
extent of his permit where water is available beyond
the reasonable needs of riparians on the watercourse.

As has been pointed out, the 1928 Constitutional amend-
ment added the limitation of reasonable beneficial use
to a water right.  The effect of this addition has
been to place a serious limitation on any water right.
For example, in Joslin v. Harin Municipal Water Dis-
trict (67 Cal. 2d 132, 429 P.2d 889, 1967), the use
of water to carry suspended rock, gravel and sand to
riparian land, where the plaintiff owned and operated
a rock and gravel business, was held to be unreason-
able as a matter of law, and that the plaintiff's
riparian claims could not preclude an upstream appro-
priation by the defendant.  The court applied this
reasoning even though the plaintiff's land had been
patented prior to the defendant's appropriation.  The
court relied upon the restrictions imposed by the
1928 amendment which had previously been held applic-
able to riparian rights (see Peabody v. Vallejo. 2
Cal. 2d 352, 383 40 P.2d 486, 1935).Thus, the 1928
amendment provides an exception to the rule of Lux v.
Haggin. which recognized the supremacy of the riparian
doctrine.
      3A possible exception to this is pointed out in
the Meyers and Tarlock, 1971 at 152, where the point
of diversion for a prepatent appropriation was on land
not then part of the public domain.

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There is another exception to the Lux v. Haggin rule,
which can be found in prescriptive rights.  At this
time, it is sufficient to say that in California, as in
some western states, a right may be lost by nonuse.
For practical reasons, and because of the prescriptive
rights referred to above, riparian ownership does
not dominate water rights and uses in California
today.  It is still a viable and recognized source of
strength, however, in any litigation over water rights.
And even though these rights have been limited by
judicial, legislative, administrative, and constitu-
tional restrictions, they still remain valuable prop-
erty rights (see United States v. Gerlack Livestock
Co., 339 U.S. 725, 752-755, 1950).It has been noted
by one source that almost all riparian rights existing
today, that is riparian stream waters, have been
acquired by grant, prescription, appropriation, con-
demnation, or contract from the riparian owner's or
abridged by the policy of the reasonable beneficial
doctrine of the 1928 constitutional amendment (Rogers
and Nichols, 1967, Vol. 1, pp. 216-217).

Many of the legal protections available in California
originated in the gold rush days.  Not the least
important of these was the recognition of appropria-
tive water rights.1*

Early miners and immigrants to California formed com-
munities applying their own standards of fairness in
apportioning water, a commodity more important, or  at
least as important, to them as gold.  Their standard
for land as well as water was "first come, first
served," with priority to the diligent (Rogers and
Nichols, 1967).  Prior to the passage of the Water
Commission Act of 1933, there were several ways of
obtaining an appropriative water right.5  Since the
passage of the Water Commission Act of 1933, however,
appropriation rights may be obtained only by comply-
ing with the statutory procedures contained in the
Water Commission Act (C.W.C. §1225).E  Administration
of this Act has been delegated to the State Water
Resources Control Doard (C.W.C.  175 et seq.).  This
appropriation doctrine as recognized in California
first applied only to mining claims, but was later
expanded to cover other uses.  In attempting to find
the basis for the new right, the California courts
first looked to equity, and to real property law
to find a solution to water problems which were not
readily determinable by established riparian water
right concepts.  The courts finally settled upon the
    "• For a discussion of some of the history leading
to the recognition of appropriative rights, see Irwin
v. Phillips. 5 Cal. 140, 1855.  This was the first
case in the United States to recognize the appropria-
tion doctrine and since the appropriation doctrine
originated in the United States, it is a genuine con-
tribution to the common law.

    5After adoption of the civil code in 1872, an
appropriative right could be obtained by posting a
notice of intent to appropriate at the place of
diversion and recording this claim in the manner that
a mining claim was perfected.  Prior to 1913, and the
adoption of the Water Commission Act, an appropriative
right could be obtained by diversion and use of water
(Duckworth v. Watsonville Water & Light Co.. 158
Cal. 206, 110 p. 927, 1910).

    6$ee also Crane v. Stevinson, 5 Cal. 2d 387,
398.54, 1936).
real property law of prescription,  or presumptive
license as the basis of the legal  right.7   Since
the Federal Government as owner of the land had  the
rights to the water, but was not a  party to the  water
disputes, the sole question presented in the early
disputes was which party had the best right of posses-
sion.  In assessing these rights,  the doctrine which
came out of the cases is that the owner which was the
first in time was the first in right, therefore  having
the better right of possession.  Since judicial
determination established the property basis of  the
appropriation right, the California Legislature  saw
fit to codify it by statute (C.W.C.  102).

2.2  SUBSTANTIVE LAW

2.2.1  Property Right in Water

All water within the state is the property  of the
people (C.W.C.  102), and water flowing in  a natural
stream is not subject to private ownership.  In
Ivanhoe Irr. Dist. v. All Parties (Cal. 306 P.2d 824,
1957), the court held that the state is the holder of
legal title as trustee for benefit of people of  the
state, all of whom in final analysis are water users
of the state.  Therefore, all waters of the state are
held in trust and the beneficiaries of such trust are
water users of the state, among whom are present and
prospective users.

Early in the state's history, the California Supreme
Court observed that the right of property  in water
flowing in a stream is not in the corpus of the  water,
but it is a usufructuary right and continues to  exist
only with possession (Eddy v. Simpson, 3 Cal. 249, 58
Am. Dec. 408, 1853).8  This concept is applicable to
riparian as well as appropriative rights (Rancho Santa
Margarita v. Vail, 11 Cal. 2d 501, 81 P.2d  553,  1938).

While a water right in California is held  to be  a
usufructuary right (Rank v. Krug, 90 F. Supp. 733),
there is no property right in an unreasonable use,
thus where an unreasonable use does exist,  there is no
taking or damaging of the property by the  deprivation
of such use and no damage award is warranted (Jos!in
v. Harin Municipal Water Dist. 429 P.2d 889, 1967 Cal.).

In Shurtleff v. Bracken  (163 Cal. 24, 124  P.724,
1912), the California Supreme Court held that the
plaintiff in that case had stated facts which consti-
tuted a good cause of action to quiet title to stream
water as part of his real estate, such water being a
parcel of the riparian land and as such was insepar-
ably annexed to it. • However, in E. Clemens Horst Co.
v. New Blue Point Co. (117 Cal. 631, 171 P. 417, 1918),
the California Supreme Court dealt with the question
of whether an artificial addition to the flow of a
natural stream,which had originated in another water-
shed, inured to the benefit of riparian owners or
could be appropriated.  The court held for the
appropriator and stated that even though a riparian
owner has a right to the usufruct of the natural
flow, the appropriator of the artifically  added waters
was the taker of the corpus of that which  exists in
the stream by virtue of  its abandonment.
      Prescription refers to the loss of a property
right through nonuse of the original owner and by open,
notorious use by the one claiming the right.  Pre-
sumptive license is a similar doctrine allowing use
of property to continue as a result of long use but
title does not pass to the new user.

      8See also Palmer v. Railroad Commission, 167
Cal. 163, 138 P.997, 1914).
                                                      105

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Appropriative rights are private property rights to
divert a specified quantity of water,  unditninished
materially in quantity and quality for actual  bene-
ficial uses subject to certain limitations (Joerger
v. Pacific Gas and Electric Co.. 207 Cal. 8,  276 P.
1017, 1929).  In spite of the history  connecting
them with government lands and the rights of  patentees,
appropriative water rights are private property
(Thayer v. California Development Co., 164 Cal. 117,
128 P. 21, 1912).  However, it has also been stated
that water rights are species of real  property (Locke
v. Yorba Irr. Co.. 35 Cal. 2d 205, 217 P.2d 425, ~
or that they are an interest in realty (Uright v.  Best,
19 Cal. 2d 368, 121 P.2d 702, 1942).  As real  property,
appropriative rights are appurtenant to the land (Ibid.),
that is to say, the water rights would pass with a con-
veyance of the land (Stanislaus Water Co.  v.  Backman,
152 Cal. 716, 93 P. 858, 1908); however, water rights
can be reserved from the conveyance (Locke v.  Yorba
Irr. Co., loc. cit.).

The general rule is thatone who diverts water pursuant
to a valid right of diversion and use becomes the
owner of the particles of water (Parks Canal  and Hin.
Co. v. Hoyt. 57 Cal. 44, 1880).  The right of usufruct
in the water is subject to a reasonable use and con-
sumption for domestic and other purposes (Big Rock
Mutual Water Co. v. Valijermo Ranch Co., 78 Cal . App.
226, 248 P. 264, 1926).  The right which an appropri-
ator acquires is a private property right, subject to
ownership and disposition (Thayer v. California
Development Co. . 164 Cal. 117, 128 P. 21, 1912).
This right is a substantive and valuable property
right (McDonald v. Bear River and Auburn Water and
Min. Co., 13 Cal. 220. 1859).  This right is not
title to the corpus of the water, but merely rights to
use of the water (California v. Rank. 293 F.2d 340,
1961).

2.2  ACQUISITION OF RIGHTS

2.2.1  Surface Waters

Riparian Rights —
No permit is required for riparian use ("Regulations
and Information...", p. 62).  Riparian rights are
private real property rights to the beneficial use of
water from a natural watercourse or stream contiguous
to the land to which the rights attach (Chowchilla
Farms Inc. v. Martin, 219 Cal. 1, 25 P.2d 435, 1933).
A riparian right exists by reason of ownership of
land abutting upon a stream or body of water and
affords no basis of right to use water upon nonripar-
ian land (Rancho Santa Margarita v. Vail, loc. cit.).

The only procedures pertaining to the perfection of
the riparian rights are those relating to acquisition
of riparian land or of severed water rights.   Thus,
the procedures established by Congress for acquiring
land titles from the government are controlling for
initial acquisition of riparian rights on patented
land.- Once title to the riparian land or severed
right is acquired, the riparian right is established
regardless of present use (Parker v. Swett. 188 Cal.
474, 205 P. 1065, 1922), since the right is perpetual,
subject to loss by prescription, transfer, condemna-
tion, or estoppel (Lux v. Haggin, op. cit.; and Sail
Diego v. Cuyamaca Water Co.. 209 Cal. 105, 287 P.
475, 1930).  Thus .title to riparian rights may be ob-
tained only by purchase of riparian land, or purchase
of riparian rights which have been severed from the
riparian land (Hutchins, 1965, p. 1220).  The right
is a part and parcel of theland and is appurtenant
thereto unless lost by prescription or is transferred.
Riparian rights have been held to inhere in the lands
acquired by grant from the United States and Mexico
and from the state of California,  which  were  contigu-
ous to streams.   Although riparian rights  do  not  vest
at the time that land passes from  government  owner-
ship (HcKinley Bros,  v. McCawley.  215 Cal.  229, 9 P.2d
298, 1932; Lux y. Haggin. loc.  cit.), the  California
courts have held that an occupant  of public land
contiguous to a watercourse who has the  intent  to put
the water to use on his land acquires rights  equivalent
to riparian owners' of private lands as  the right
accrues at the time of occupancy.

There is no California statute defining  riparian
rights, but a modification of the  common law doctrine
of riparian rights has been established  in the  state of
California by court decision and confirmed by the pro-
visions of Article 16, Section 3,  of the State
Constitution.9  Lands within the watershed of a natural
watercourse which are traversed by that  watercourse or
border on it are riparian lands and each such owner
has a right to share in the reasonably beneficial use
of the natural flow of water which passes  his land
("Regulations and Information...", 1973, p. 62).

The extent to which riparian lands extend is important
to note.  Three factors determine  the extent of ripar-
ian lands:  (1) the land must be contiguous to  the
watercourse; (2) it must be within the same watershed;
and (3) their riparian right extends only to the
smallest tract held under one title in the claim  of
title, leading to the present owner.10

A riparian owner has the right to  use a  reasonable
quantity of water on his lands subject to correlative
rights and other riparians along the same watercourse.
The quantity of water cannot be absolutely stated as
it will depend on the physical supply and the reason-
able use of other riparians making demands upon the
same source.  The situation is complicated by the addi-
tion of appropriative and Pueblo rights  to use  water  in
the stream in California.  Even among riparian
users, there is a hierarchy of uses between the
users.
      11
Some limitations on the acquisition of riparian rights
should be noted here.  The first is Article 16,
Section 3, of the Constitution which sets forth the
reasonable-beneficial concept which applies to ripar-
ian uses as well as appropriation uses.  Additionally,
riparian rights may be lost by prescription.  This
must be distinguished from loss by mere nonuse.  That
is to say, a riparian right cannot be lost merely by
not using it.  But, if during the period of nonuse,
an intervening appropriator comes forth, then the
riparian right will be lost.  Another factor which
is important to California water law is the role of
state water projects in providing water for all sec-
tors of the state, particularly of Southern
      9In 1850, the year California was admitted to
the Union, the legislature adopted the common law of
England as a  rule for judicial decisions.  As adopted
the common law included the English water rights
doctrine of riparian ownership.  See Seneca Consoli-
dated Gold Mines Co. v. Great Western Power Co.. 209
Cal. 206, 287 P.93, 1930).

      10See Dewsnup and Jensen, 1973, pp. 142-143).

      ult is important to note that the California
Civil Water Code, Sec. 106, sets domestic use as the
highest use of water and the next highest use is
irrigation.   Domestic use has been held to include
watering of stock used for domestic needs, not for
commercial breeding.  Cowell v. Armstrong, 210 Cal.
218, 290 P.1036, 1930.
                                                     106

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California.  The legislature has given the Department
of Water Resources the right to appropriate water to
project requirements and all state, and many private
and local government project activities must conform
with this water plan.  This has obvious implications
for riparian  landowners who wish to begin a use.

Appropriative Rights—
The Supreme Court of California has defined an appro-
priation as "the intent to take, accompanied by some
open, physical demonstration of the intent, and for
some valuable use" (MacDonald v. Bear River Co., 13
Cal. 220).  Whenever an application for appropriation
is received, the State Water Resources Control Board
must take into account not only the availability of
unappropriated water, but also the aspect of water
pollution and water quality (C.W.C.  §761).

The measure of an appropriative right is determined
by actual beneficial use not to exceed the quantity
indicated on the permit received from the State
Water Resources Control Board (C.W.C. §1240).  As
between appropriators, the first in time is the first
in right (Al paugh Irrigation District v. Kern County,
113 Cal. App. 2d 286, 248 P.2d 117, 1952), and junior
appropriators may use water only if such use does not
deprive senior appropriators of their water rights.
Between appropriators and riparians on the same water-
course, riparians have paramount rights except where
riparian rights have been recognized on federal lands.
Ho riparian rights have been recognized on federal
lands because there is no private riparian land.  It
is only after the land passes to private ownership by
patent that riparian rights may be acquired.  The
rule of Lux v. Haggin (loc. cit.) is that between
a patentee of federal lands making a riparian claim,
and an appropriator, the dates of appropriation and
patent control.  Riparian rights were superior only
to those appropriative rights acquired after the date
of patent.1^

As to lands acquired by patent by the state, these same
general rules apply.  When California was granted land
from the United States, it received riparian rights as
an incident to that grant, which were in turn trans-
ferred to private patentees.  When the civil code
was adopted in 1872, however, the state consented to
appropriations in derrogation of the state's riparian
rights.  Thereafter, any appropriation perfected prior
to the patent from the state was superior to riparian
claims by the patentee (Dewsnup and Jensen, 1973, p.
134).  This structuring of the relative positions of
riparian and appropriative rights is the clear meaning
of the 1928 Constitutional Amendment (Cal. Const. Art.
XIV, §3).13  Although the riparian right is paramount,
and includes a reasonable prospective use, an inter-
vening appropriative use is allowed pending future
riparian use (Dewsnup and Jensen, 1973, p. 143).  Thus,
a senior appropriator has the first right to use the
extent of his permit where water is available beyond
reasonable needs of riparians on the watercourse
(Ibid.).
     120ne exception might be the case where the
point of diversion for a pre-patent appropriation was
on land not then part of the public domain.  See
Meyers and Tarlock, 1971, p. 152.

   13See also Meridian Ltd. v. San Francisco. 13 Cal.
2d 424, 90 P.2d 537, 91 P.23 105, 1939.
2.2.2  Appropriation Rights

After passage of the Water Commission Act of 1933,
appropriative rights could be obtained solely by
complying with the procedures contained therein
(C.W.C. §1225).1<(  Administration of this Act has
been delegated to the State Resources Water Control
Board (C.W.C. §175 et seq.).  The initial step in
obtaining appropriative rights under the statutory
effort is the filing of an application with the
State Board (C.W.C. §1250 et seq.).15  The California
Water Code requires the application to contain speci-
fic data such as the name of the applicant, the
source of supply, the nature and the amount of the
proposed use, the place of diversion, place of use,
the effect on fish and wildlife resources, and time
for completion of the diversion works (C.W.C. §1260-
1266).  Any person may apply for a permit to appro-
priate if he conforms to the code and regulations
adopted thereunder (C.W.C. §1252).

There must be notice of the application sent by the
Board to the applicant, the district attorney of the
county wherein the diversion is proposed, the board
of supervisors of the county, and to any other inter-
ested parties (C.W.C. §1300).  This notice will con-
tain information which is similar to that required
in the application.  Upon receipt of the notice, the
applicant must publish it and post it in accordance
with the statute if the application is for quantities
in excess of statutory limits (C.W.C. §1310-1317
and 1320-1324).

An application may be protested by interested parties.
Any protest made must be signed by the protestant,
state objections to the application and contain infor-
mation required by rules passed by the board (C.W.C.
§1302, 1303, 1330 and 1331).  If an application is
protested, the Board notifies the applicant, protes-
tant and interested parties and conducts a hearing  on
the application (C.W.C. §1340-1342, 1350-1355).  The
Board may also hold a hearing where no protest has
been received which is held at the discretion of
the Board (C.W.C. §1351).

For an application to be approved and a permit issued
(C.W.C. §1375-1380, 141 et seq., 1675 et seq.),16
the Board must find:  (1) there is unappropriated
water available (this water may include the water
available from rights of lost or water from a
return flow);  (2) that the proposed use will not inter-
fere with prior or paramount rights; (3) that the use
would best serve the public  interest.  To these ends,
the Board may approve or reject the application in  its
entirely or in part, and it may permit the appropria-
tion under such terms and conditions as in its judg-
ment will further the policy of the statute (C.W.C.
§1201-1202; 1253, 1255 and 1350).17  To provide due
      lljSee also Crane v. Stevinson. 5 Cal. 2d 387,
54 P.23 1100, 1936j:

      15The regulations implementing these sections
are to be found in California Administrative Code,
Title 23, §650 et seq.

      16Granting a water right is a two-step process.
First, a permit is issued which is reviewed annually.
After the conditions of the permit are met, a license
is granted which may be reviewed at any time to in-
sure  that its conditions are being complied with.

      17See also Pasadina v. Alhambra, 33 Cal. 2d
908,  207 P.23 17; and Rich v. McClure, 78 Cal.
App.  2d 209, 248 P.278, 1926).
                                                      107

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process, the decision of the Board is reviewable in
Superior Court on a writ of mandamus sworn out by the
applicant (C.W.C. 51360).18

Upon approval of the application, the Board issues a
permit which establishes a priority date and gives the
consent of the state to appropriate water (Temescal
Water Co. v. Dept. of Public Horks, 44 Cal.  Zd 90,
280 P.23 1, 1955).The permit does not grant an
appropriative right which can only be obtained upon
actual use in accordance with the terms and laws of
the state.  To secure his right and have a permit ripen
into a license, the applicant must prosecute the con-
struction of his diversion works with due diligence
along with the utilization of the water for beneficial
purpose (Sierra Land and Water Co. v. Cain Irr. Co.,
25 P.2d 223, 1933).

Ground Water--
As common law, a landowner whose land was overlying
percolating waters had the absolute ownership of those
waters and could make full use of them without regard
to other landowners.  This was the rule in California
until the doctrine of correlative use was adopted
(Katz v. Malkinshaw. 141 Cal. 116, 70 P.663, 1903).

This doctrine gives all overlying landowners common or
correlative rights to percolating waters beneath their
lands (Vineland Irrigation District v. Azusa Irr. Co..
126 Cal. 486, 58 P.1057).19  The doctrine provides
that when there is a sufficient supply of water,  each
owner may withdraw the amount necessary for his needs.
In a time of shortage, each owner is limited to the
reasonable amount necessary to meet his beneficial
needs, subject to the similar and egual rights of
all the other overlying landowners (Pasadena v.
Alhambra, loc. cit.).  As a corollary to the rule that
transfers of water may be accomplished only where there
would be no injury to another, it should be clear
that underground water may be exported from a basin
only where there is enough water to meet the needs
of all the overlying landowners (Katz v. Walkinshaw.
loc. cit.).

The correlative right is a part of the land (Hillside
Water Co. v. Los Angeles. 10 Cal. 2d 677, 76 P.2d 681,
1938), and does not depend on use (Hudson v. Dailey.
156 Cal. 617, 105 P.748, 1909).  The difference be-
tween these rights and riparian rights is that the
right of the overlying owner is an appurtenance with
the land in all cases, and may be exercised by the
current landowner except if it results in an over-
draft of the aquifer (Pasadena v. Alhambra. loc. cit.).

The general proscription against waste in the use of
water applies with equal force to the use of ground
water (Ex partc Elam, 6 Cal. App. 233, 91 P.811, 1907).
The legislature has provided for statutory regulation
of the use of underground water (C.W.C. §300-311),
but this does not mean that these waters are regulated
by the pernrit system.  Indeed, underground water is
     18See also California Code of Civil Procedure,
S1094.5.

     19Percolating waters are those which pass through
the ground beneath the surface of the earth without any
definite channel and do not form a part of the body or
flow of any watercourse, whether it be surface or
subterranean.  Examples of these include rainwater or
seepage which has travelled so far from the bed of a
stream or other waters as to have lost its character as
being a part of that water.
not subject to the permit procedure unless it is the
underflow of a surface stream or is otherwise flowing
in a subterranean stream with a definite and known
channel (Regulations and Information..., 1973, p. 3).
Percolating water fs not subject to the jurisdiction
of the State Water Resources Control Board (General
Information..., 1974, p. 66).

Since the right of each landowner is equal and
correlative, in times of shortage the available supply
must be equitably apportioned (Ibid.).  Surplus water
not presently required for beneficial use on overly-
ing lands and which may be withdrawn without creating
an overdraft on the ground water supply may be
appropriated for use on nonoverlying lands subject
to future requirements on overlying lands (Ibid.,
pp. 66-67).

All withdrawals over the natural recharge rate of the
aquifer will be harmful to the resource in the long
run unless it is replenished from other sources.20
In recognition of this, the courts will enjoin with-
drawals to prevent harmful lowering of the water
table (Burr v.  Maclay Rancho Mater Co.. 154 Cal.
428, 98 P. 220, 1903).  Since an overdraft is harmful
to all users, if the overdraft goes unchallenged it
will ripen into a prescriptive right against all
users, with the result that all users will lose a
share of their right in the proportion that the pre-
scriptive user bears to their right (Pasadena v.
Alahambra, loc. cit.).  Allowing overdrafts is the
only way to lose a right to percolating waters
(Dewsnup and Jensen, 1973, p. 134).

Prescriptive Water Rights--
Riparian and appropriative rights at one time could
be acquired by prescription (Peabody v. Vallejo,
2 Cal 2d 351, 40 P.2d 486, 1935; Pasadena v.
Alhambra, loc. cit.).  Pueblo rights and governmental
rights were exempt from this doctrine.  The water
right was lost when the statutory period expired and
the prescriptive title vested (Alta Land and Water Co.
v. Hancock. 85 Cal. 219, 24 P. 645, 1890).  When
there had been actual, open and notorious use by the
adverse claimant for five years, a prescriptive title
was obtained (Peck v. Howard. 73 Cal. App. 2d 308,
167 P.2d 753, 1946).This adverse claim was subject
to beneficial use requirements (Pabst v. Finmand. 19
Cal. 124, 21 P.11, 1922).

However, California law now provides that the exclu-
sive method of acquiring an appropriative right is
through adherence to the dictates of the statutes
(C.W.C. §1225).

Preferences—
Between appropriators and riparians on the same
source, riparians have paramount rights.  Domestic
uses have top priority, followed by irrigation
uses (C.W.C. §1254).

2.2.3  Adjudicating Water Rights

There are two ways in which the adjudication of water-
rights relating to either surface or underground
sources will culminate in a final decree.   The first
of these two is a proceeding provided by the
California Water Code, which is commonly referred to
as a statutory adjudication.  All rights to a stream
are generally included.  This procedure is composed
of two parts:  an investigation and determination by
      20See "Legal Breakthrough on Ground Water
Management," 1975.
                                                      108

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the State Water Resources Control Board and court review
of the Board's determination which confirms or modifies
this determination.  This procedure is not available
for determining rights to ground water except subter-
ranean streams flowing in known and definite channels
and except the Scott River in Siskiyou County ("Deter-
mination of Rights...," 1973, p. 3).

The second type of legal proceeding is an action filed
in court by one or more water right claimants against
one or more other claimants.  Only the rights of those
who are made parties to the action are adjudicated.
Court decrees and actions which involve only some of
the water users on a stream or in a ground water basin
sometimes prove to be of very little value because
those who are not made parties are not bound by the
decision and may divert water without regard to the
decree.  In such cases, another action must be brought
in order to secure an effective adjudication.  This
handicap is avoided if all those who claim a right to
the use of water from a common source of supply are
made parties so that each right can be defined and
determined with respect to all the other rights as
to priority, quantity of water, season of diversion,
place of use, and purpose of use.

The State Water Resources Control Board may be appointed
by the court as a referee in the second type of pro-
ceeding and, of course, is always involved in the
first type.

The State Water Resources Control Board may, upon its
own initiative, or in response to a protested water
right application or water right dispute, conduct
hearings, inquiries and other proceedings.  It may
take testimony, subpoena witnesses and petition the
superior courts for orders compelling the attendance
of witnesses and the production of evidence (C.W.C.
§1075-1096).   The Board is also authorized to supervise
court-ordered distributions of water, and to institute
actions in superior court to enjoin unauthorized
appropriations (C.W.C. §1051-1052).  As mentioned
before, all actions before the Board must be open to
the public, and are conducted in general accordance
with the rules of evidence, although as is the case
with many administrative hearings, these rules are
less strictly applied than in a trial before court.
Notices are sent to the parties involved and to inter-
ested persons prior to any hearing and testimony is
invited from all parties concerned.

The California Water Code authorizes statutory adjudi-
cations for all kinds of rights to use water in any
stream system (C.W.C. 52500-2900).  This proceeding
is initiated before the State Water Resources Control
Board by the filing of a petition which requests a
determination of rights to water or the use of water.
This petition must be signed by one or more claimants
to the water source involved.  The State Board may
determine all rights to water of any stream system
upon petition by any water rights claimant when the
Board believes that such a determination will be in
the public interest (C.W.C. §2525).
  BEFORE THE STATE WATER RESOURCES CONTROL BOARD
            OF THE STATE OF CALIFORNIA

In the Matter of the Determination oT the}
Rights of the Various Claimants to the   )
Waters of	and Its          )
           California                    )
Tributaries, in 	County,       )
     PETITION FOR DETERMINATION OF WATER RIGHTS

To the State Water Resources Control  Board:

The undersigned, your petitioners, respectfully
represent:
      FIRST--That they are claimants  to water or use
of water of the above-named stream system,  to wit,
said         and its tributaries, in  	County,
California,
      SECOND--That there are various  claimants to
waters and the use of water of said stream  system and  to
rights in and to the waters thereof.
      THIRD--That the public interest and necessity
will be served by a determination of  the rights in and
to the water of said stream system.
      WHEREFORE, your petitioners request that a
determination of the rights of the various  claimants
to the waters of said stream system be undertaken as
provided for in Sections 2500 to 2900, inclusive, of
the Water Code.
      Petitioner
Post Office Address
                                                     109
Upon receipt of such petition, a notice is  prepared
by the Board setting forth the fact of entry of the
order granting the petition and of the pendancy of
said proceedings specifying the date on which the
investigation of the system will commense,  and the
date prior to which all claimants must notify the
Board in writing of their intention to file proofs
of claim and stating that all claimants be  required  to
make proofs of their claim at a time to be  fixed by
the Board at the conclusion of its investigation.  A
copy of this notice is published in one or  more new-
papers of general circulation, published in each
county in which any part of the stream system is
situated.  It is not required that claimants present
claims or proofs at this date.

The Board makes a preliminary investigation of the
stream system and if the facts and conditions are
such that the public interest and necessity will be
served by such a determination, an order is entered
granting the petition.  Investigation of the stream
system by the Board preceeds filing of proofs and
hearings.  This investigation is primarily  a data
gathering investigation.  Upon notice by the Board,
proof of claims must be filed containing detailed
information concerning the nature, quantity  and date  of
use and the means of diversion.  The Board  then issues
an abstract of proofs so filed which, along with any
other evidence before the Board, may be inspected  by
all claimants (C.W.C. §2550-2629).  The investigation
of the stream will include measurements of  the water
supply and all of the diversions from the stream sys-
tem; a survey of all diversion conduits and areas
irrigated or irrigable therefrom; a survey  of the
principle soil types of the area; and a study of water
requirements of the various uses being made.  This
study includes a determination of the duty  of water
on the lands served from the stream system, and for
the several crops thereon, the conveyance losses in
the diversion conduits and stream channels  and the
water requirements for domestic or stockwatering pur-
poses and any other uses involved.  This investigation
also includes an engineering report which sets forth
the facts and the results of studies on water require-
ments, includes the maps of the stream systems showing
the diversion systems, and the land irrigated
therefrom.

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Upon filing of the engineering report, the Board pre-
pares a notice setting forth a date prior to which
proofs of claim of water right must be filed by claimants
of rights to the use of water from the stream system,
including those whose rights were initiated under
provisions of the Water Commission Act, or the Water
Code.  A copy of this notice together with blank forms
for submitting proofs is sent by certified mail to
each known claimant.

Upon expiration of the time allowed within which to
file proofs, the Board must, if there are less than
twenty-five proofs filed, prepare an abstract of all
proofs.  A copy of the abstract is sent by certified
mail to each party who has filed a proof together
with a notice of time and place.  When the proofs and
all the information has been collected and filed
with the Board, it will then be open for public
inspection.  Within fifteen days of the expiration of
this time, notices of contest of claims may be filed
with the Board.  This fifteen-day period may be ex-
tended if good cause is shown.  Ahearing before the
Boardis held on each contestant claim, at which time
both the claimant and contestant may appear and sub-
mit evidence to substantiate their respective conten-
tions.  The Board makes a decision based upon the
evidence presented at such a hearing ("Regulations
and Information," 1973, p. 8).

Upon completion of all contest hearings, the Board
makes an order which determines and established all
rights to the water of the stream or use of the water
of the stream system.  This determination is based
upon the data and evidence presented by the parties
or by other evidence which is otherwise available to
the Board in the proceeding.  This order is printed
and a copy of it is mailed to all parties who have
filed proofs of claim (C.W.C. §2700-2703).

A copy of this order of detenninati9n, together with
the evidence and transcript of testimony taken, is
filed with the Clerk of Superior Court of the county
in which the stream system or some part thereof is
located and an order is obtained from the Court set-
ting a time for a hearing.  A copy of the court order
of the hearing is sent by certified mail to each in-
terested party and a copy is also published in one or
more newspapers published in each county in which any
part of the stream system is situated.

Any party who is dissatisfied with the order of deter-
mination prepared &y the Board may file with the Clerk
of the Court at least ten days prior to the dates set
for hearing those exceptions to such orders stating
the reason therefore and the relief requested.  At
the hearing held by the Court, the order of determina-
tion of the Board and any exceptions are considered.
The Court may allow such additional or amended plead-
ings to be filed as may be necessary to a final
determination and may take additional evidence or
may refer the matter back to the Board for further
determination {C.W.C. 52756-2767).  At the conclu-
sion of the hearing, the final decree is entered by
the court, which establishes all rights to water or the
use of water on a stream system, etting forth a prior-
ity, if any, the amount, season of use, purpose of use,
point of diversion, and place of use of each right
along with the relation of each right to every other
right on the stream system.  Appeals from this decree
may be taken in the same manner and with the same
effect as in civil cases as this and not the decree
of the Board is the final adjudication for purposes
of civil appeal (C.W.C. §2750-2774).21

      2i$ee also Wood v. Pendola. 1 Cal. 21, 35 P.2d
526,  1934.
The above procedure may be by-passed upon  authoriza-
tion of the Board for persons whose use of water under
claim of right does not exceed ten acre-feet of water
annually, if the Board finds that the use  of such
claim of right would have no material effect on the
rights of a claimant.  However, persons so exempted
may elect to continue to be subject to the proceedings.

When an action is filed in court for the determination
of rights to the use of water, the court may, in its
discretion, refer the suit to the State Water Resources
Board.  There are two types of references  provided by
the Water Code (C.W.C. §2000 and 2001).22   Statutory
authorization provides that the court may  refer to the
Board as referee to "any or all issues involved in a
suit."  The second type of authorization provides that
the court may refer the suit to the Board  for investi-
gation and report of any or all of the physical fac-
tors involved.  The second type of procedure is pre-
ferred in most instances because the Board and its
staff of trained personnel can usually render more
effective assistance to the court by investigation of
the physical facts and a report thereon, than by
duplicating the functions of the court by  holding
hearings and taking testimony.  However, the latter
method is allowed and is specifically provided for
by statute (C.W.C. §2010).  Court actions  which in-
volve a determination of all the relative  rights to
the use of water on the entire stream system or
ground water basin afford a basis for distribution of
water after decree under water master service.
Furthermore, water users may secure the services of
the Department of Water Resources in making distribu-
tion of water to them in accordance with their
respective rights as determined by the court.
Actions in which determination of  only a  portion of
the water rights and a common source of supply are
involved do not ordinarily afford opportunity for
such a distribution of water.  Generally,  these are
so incomplete in their results and of such limited
benefit that the State Water Resources Control Board
does not favor a reference thereof where a water
master service is the ultimate objective sought
("Regulations and Information," 1973, p. 4).

2.2.4  Conditions of Use

Beneficial Use—
The policy set forth  in California Water Code,
Section 100, states  that:

      The general welfare  requires that the
      water resources of  the  state be  put to
      beneficial use to the  fullest  extent of
      which they are capable,  and that  the waste
      or unreasonable method of use  of water  be
      prevented	   The  right to water or  to
      the use or flow of  water in or from any
      natural stream or watercourse  in  this
       state  is and  shall  be limited  to  water
      as  shall  be  reasonably required  for the
       beneficial  use to  be served.23

The paramount interest  in the use  of water  is  for
 public  purposes  and it  has been  declared  that it is
     22C.W.C.  §2000-2050 cover referrals  from state
 courts, while §2075-2076 cover referrals from
 federal courts.
      23This statutory language is consistent with the
 "reasonable-beneficial" concept embodied in the State
 Constitution, Art. XIV, §3.   The excerpt of the stat-
 ute gives the spirit of the law.  See the text for
 the full citation.
                                                      110

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in the interest of the state to develop water resources
for the greatest public interest (C.W.C.  104-105).
The limitations and prohibitions of the reasonable use
rule apply to every water right and every method of
diversion (Peabody v. Vallejo, 40 Cal. P.2d 486,
1935).

The vesting of appropriative rights, as has been
pointed out, depends upon beneficial use of water.
These uses are specifically recognizes as beneficial
in California, but for purposes of this report,
which is to focus on the water right and the exercise
of the same in light of water quality, it is noted
that the appropriation of water for sale, rental, or
distribution, with certain exceptions, is declared to
be a public use and as such is a beneficial use
(San Joaquin and Kings River Canal and Irr. Co. v.
Beaudry, 67 Cal. 120, 7 P.264, 1885).21*  The excep-
tion to this rule is the sale, rental or distribution
of water through a mutual water company since, although
the use is beneficial, it is not a public use  (In re
Thomas' Estate. 147 Cal. 236, 81 P. 539, 1905).^
The rationale for not extending this to mutual water
companies is that the corporation is a mere agent of
the water rights owners; and for that reason is not
a true public utility (J.M. Howell v. Corniq Irr. Co..
177 Cal. 513, 171 P. 100, 1918).

The California Constitution provides that the  right
to use water is limited to that amount of water "as
shall be reasonably required for the beneficial use to
be served, and such right does not and shall not ex-
tend to the waste or unreasonable diversion of water
(Calif. Const. Art XIV,  3).

     What may be a reasonable beneficial use
     where water is present in excess of all
     needs would not be a reasonable  beneficial
     use in an area of great scarcity and need,
     and that what is beneficial  use  at one
     time may, because of changed conditions,
     become a waste of water at a later time
      (Trelease, 1957, pp. 1,  14,  16).

An appropriator who diverted and  used water, and
allowed  it  to go to waste and flow  back into a ravine,
acquired no rights to the water which had originally
been diverted and  used for  irrigation by a prior
appropriator  (Brown  v. Hull in.  3  P.  99, 65 Cal. 89,
1884).

An appropriator cannot  be compelled to  divert  in  the
most  scientific method,  and is  entitled to make a
reasonable  use of  the water according to general  cus-
tom,  as  long  as the  custom  is not unnecessarily
wasteful  (Tulare  Irr.  Dist. v.  Lindsay-Strathmore
 Irr.  Dist.T45  P.2d  972).—In  Erickson  v.  Queen Val
Ranch Co.  (99  Cal.  Rptr.  446, 22  C.A.  3d  578,  1971),
the court  held  that  transmission  losses of 5/6 of
the flow which were  reasonable  and  consistent  with
local  custom,  was  not  in conformity with the demands
of  the State  Constitution,  Article  XIV,  Section 3,
which establishes  a  state policy  of achieving
a maximum  beneficial  use of water and the  prevention
of  waste,  unreasonable use  and  methods  of  use.

What  is a  reasonable use is a question  of  fact to
 be  determined in  each particular case (Joslin  v.
      2"See also Cal. Const. Art. XIV, si-

      25However, California's Code of Civil Procedure,
 §1238(4) permits this as a public use for purposes of
 eminent domain.
 Marin Municipal  Water Dist..  67 C.2d  132,  429  P.2d
 889, 1967).   Further, the California  Constitution,
 Article XIV,  Section 3,  which allows  riparian  owners
 or overlying  landowners  only  reasonable  beneficial
 use of water  against appropriators, was  adopted  to
 redefine water rights (Ibid.).   Therefore, riparian
 use must be  beneficial  and reasonable within the
meaning of this constitutional provision.

In November 1975, the California Court of Appeals for
the 1st Appellate Division decided a  case of first
impression that may have a very significant impact
upon water use efficiencies in the state (E.D.F.  v.
East Bay Municipal Utility Dist., see  Environmental
Reporter. Decisions No. 16, Feb. 13,  1976).The
court was faced with the task of determining
whether the 1928 constitutional amendment was applic-
able to other than competing claims of property rights
in water such as those who are "unpermitted" claimants
to the use of the state's waters, i.e., sportsmen and
others who are still able to find opportunities to
enjoy outdoor recreation.  After a close look at  the
historical development of the law, it concluded that
the courts have been aware of the necessity for flexi-
bility in construing the law to keep pace with the
needs and transformations constantly taking place,
and that there is no difficulty in holding that the
amendment can only  "reasonably be interpreted as  an
unqualified expression of fundamental  policy by the
people of California that the general welfare requires
that  all of the water resources of the state be put
to beneficial use to  the fullest extent  of which they
are  capable."  As to  whether  or not it is  unreasonable
for  the  users of water not to  have adopted recycling
and  reuse of waters  to prevent waste  is  a  valid  issue
for  the  trial court  to decide  in each  particular case.

One other  important point  was  decided  by the court,
which directly  affects the irrigation  return flow and
water use efficiency issue.   The court decided that
 an irrigation  district contracting with  the  Federal
 Government for  their supply of water  must  follow fed-
 eral  law,  not  state law,  i.e., that the  state  courts
 are without authority to  interfere with  contracts of
 this kind, and  that the  Federal  Government agencies
 do not have a  public trust to the  state  for  the  use
 of state waters legally  appropriated.

 Haste—
 The waste of  water can be considered  the opposite of
 using the water beneficially.  Waste  water is  that
 water which  has been used by  a prior  user which  has
 left his lands and goes  upon  the lands of another,
 or otherwise becomes available for use by another,
 without returning to a natural watercourse.  A water
 right does not extend to the  waste of the water
 (Calif. Const.  Art XIV, §3).

 Even though the means of diversion employed must not
 be unnecessarily wasteful, when ditches and flumes are
 the usual and ordinary means of diverting water,
 parties appropriating by such means  cannot be  com-
 pelled to substitute iron pipes (Barrows v. Fox,
 9 Cal. 63, 32 P.811).  However, they will  be required
 to prevent unnecessary waste by keeping their ditches
 and  flumes in good repair (Ibid.).

 2.2.5  Manner in Which Rights Hay be Adversely
        Affected

 Water not beneficially used ceases to be part of an
 appropriated right,  and if there is nonuse for three
 years,  the unused water reverts to the  public.
 Riparian and Pueblo  rights are not subject to for-
 feiture (Herminghaus v. So.  Calif. Edison Co.. 200
                                                      111

-------
 Cal.  31, 252  P.607,  1926;  and  Los Angeles v. Glendale,
 23  Cal. 2d  68,  142  P.2d  289, 1943).

 The party claiming  a water right based upon another's
 forfeiture  has  the  burden  of proving the forfeiture
 (Lema v. Ferrari. 27 Cal.  App. 2d 65, 80 P.2d 157,
 1938).

A water right is abandoned when possession is  relin-
quished without a present intention to  repossess.
Coupled with this, there must be an intention  and an
action to abandon (Utt v. Frey. 106 Cal.  392,  39 P.
807, 1895).

Appropriative rights can be lost by abandonment but
riparian rights cannot (Wood v. Etinwanda Water Co..
147 Cal. 228, 81 P.512, 1905).There is  no time
element when dealing with abandonment,  it is a
question of fact to be determined by a  trier of fact
(Utt v.  Frey. loc. cit.).  The party asserting the
abandonment has the burden of proof (Ward v. Monrovia,
16 Cal.  2d 815, 108 P.2d 425, 1940).

Adverse Possession—
Case law provided that riparian and appropriative
rights could be lost by the adverse possession of the
right by another user.  The use had to  be open, notor-
ious by the adverse user for five years (Peabody v.
Vallejo, loc. cit.; and Pasadena v. Alhambro.  loc.
cit.).  California statutes now provide that no right
to appropriate water can be acquired unless an appli-
cation has been filed with the State Board (C.W.C.
§1225).

Condemnation—
Water rights may be  lost when a governmental agency
or preferred water user exercises the powers of emi-
nent domain to condemn water rights.  This condemna-
tion can be used for present or future development
for county and municipal water district systems
(California Code Civil Process, §1238(5)).

Enforcement of Beneficial Use or Waste Concepts—
An appropriator is limited to the quantity of water
specified in his permit that is being reasonably ben-
eficially used and any unused water is subject to the
forfeiture statute.  No appropriation is valid unless
it is pursuant to a beneficial use.

A water right certificate is subject to divestment
for failing to apply the water to a beneficial use
 (Yellen v. Hickel; 335 F. Supp. 200. 1971).

California policy is to put waters of the state to
beneficial use and to prevent the waste or unreason-
able method of use of the water (C.W.C. §100).  Since
waste is the antithesis of beneficial use or a reason-
able use, any practice which is wasteful  will  be
prohibited.  In Holmes v. Nay (199 Cal. P. 325. 1921).
the court held that a lower riparian owner could com-
plain of the muddying and polluting of water by upper
riparian owners, except insofar as it was reasonably
necessary and incident to  the use of water by
the upper riparians.  Where the impairment of the
water prevents its usefulness for the purposes to
which it was devoted, it is an invasion of rights
 (Wright v. Best. 121 Cal.  P.2d 702. 1942).

2.2.6  Legal  Incentives and Disincentives For More
Legal incentives ana msincen
Efficient Water Use Practices
                                                  tailwater runoff.  A downstream senior appropriator
                                                  is entitled to have the stream flow in a sufficient
                                                  quantity to satisfy his appropriation.26  Return
                                                  flows are those waters which return to a stream after
                                                  use, and which may become subject to vested rights of
                                                  downstream users.  Thus, an upstream junior appropria-
                                                  tor cannot use water or alter his return flows if
                                                  that use or practice would deprive the downstream
                                                  senior of his appropriated quantity.

                                                  A riparian owner is entitled, even as against another
                                                  riparian, to a substantially unpolluted stream as
                                                  well as to undiminished flow of water (C.W.C. §100).

                                                  It has been judicially recognized that riparian lands
                                                  in California benefit from the return to the stream
                                                  water which had been diverted upstream but not con-
                                                  sumed (Anaheim Union Water Co. v. Fuller, 150 Cal.
                                                  327, 88 P. 978, 1907).The riparian rights of such
                                                  lands entitle the owner to the natural flow of the
                                                  stream, including such portions of that flow which
                                                  have been diverted upstream but are allowed to flow
                                                  back into the stream after use (Southern California
                                                  Inv. Co. y. Wilshire, 144 Cal. 68, 77 P.767, 1904).
                                                  Thus, a riparian owner may enjoin an upstream diver-
                                                  sion out of the watershed if the excess waters after
                                                  their use cannot return to the stream above his lands
                                                  (Huffner v. Sawday , 153 Cal. 86, 94 P.424, 1908).
                                                  This concept is applicable to appropriative rights
                                                  as well (Scott v. Fruit Growers' Supply Co.. 202 Cal.
                                                  47, 258 P7 1095, 1927).

                                                  In 1939, the California Supreme Court upheld the
                                                  right of an irrigation district to recapture its
                                                  return flows from a creek, at a point which was
                                                  within the boundaries of the district (Stevens v.
                                                  Oakdale Irr. Pi St., 13 Cal. 2d 343, 90 P.Zd 58,
                                                  1939).  Part of the language of the decision is of
                                                  particular importance and reads as follows:

                                                        To summarize, one who produces a flow of
                                                        foreign water for beneficial use and there-
                                                        after permits it to drain down a natural
                                                        stream channel, is ordinarily under no duty
                                                        to lower claimants to continue importing the
                                                        supply or to continue maintaining the volume
                                                        of discharge into the second stream channel
                                                        at any fixed rate.  The rule may have excep-
                                                        tions, as perhaps where the artificial con-
                                                        dition has become inherently permanent and
                                                        there has been a dedication to the public
                                                        use, or where the drainage is stopped wan-
                                                        tonly to harm a lower party, without other
                                                        object.  But as a general proposition, an
                                                        irrigation district, after importing water
                                                        from one river, passing it through irriga-
                                                        tion works, and discharging it into a natural
                                                        creek bed in the second watershed, may change
                                                        the flow of water imported or the volume of
                                                        water discharged from its works into the
                                                        second stream, or stop the flow entirely,
                                                        so long as this is done above the point
                                                        where the water leaves the works of the dis-
                                                        trict or the boundaries of its land.  An
                                                        exception to the rule is not created by the
                                                        fact that the district may act upon the
                                                        water a second time while in its possession,
                                                        by retaking it at a point of drainage for
                                                        further beneficial application
Water Use Practices-
Irrigation Return Flow—Irrigation return flows occur
from deep percolation from the overapplication of water
to the land, seepag_e from conveyance systems, and
                                                        26For an article dealing with irrigation
                                                   in California, see  Leach, 1976, pp. 6-7.
                                                     112

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Salvaged and Developed Waters--
In  light of California's policy as to beneficial use .
and the prohibition on waste or unreasonable use, it
would seem that if a water user improves his prac-
tices and thereby saves water, he should be entitled
to  use such waters.27

Developed waters are not present in the area until
brought there by means of artificial devices, while
salvaged waters are already in the area or close to
it  (Vernon Irr. Co. v. Los Angeles, 106 Cal. 237,
39 P. 762, 1895).

It is important to note that the right of the sal-
vager and developer to take the water he salvages or
develops must not infringe upon the prior rights of
others (Pomona Land and water Co.  v. San Antonio
Mater Co., 152 Cal. 618, 93 P.881, 1908).

Provisions for Transfer of Water Rights and
Diversions--
As a general  rule, riparian rights are appurtenant to
the land and are transferred by a conveyance of real
property (Holmes v. Nay. 186 Cal.  231, 199 P. 325,
1921).  A parcel of land, when conveyed, loses its
riparian right when it is severed from land bordering
the stream, unless the riparian right is expressly
reserved in the conveyance of the separate parcel
(Anaheim Union Hater Co. v. Fuller, loc. cit.).

Though riparian rights may be conveyed separately
from the land—that is, a water right severed from
the land—the conveyance binds only the grantor and
his successor and does not bind other riparians
(Spring Valley Water Co. v. Alameda County, 88 Cal.
App. 157,  263 P. 318, 1927; and Parker v. Swett, 138
Cal. 474,  205 P. 1065, 1922).   Severance may be
accomplished  by grant but can also occur with a loss
of contiguity with riparian land,  prescriptive or
condemnation.   A riparian land owner may convey a
portion of his riparian rights with part of his
land or all  of the riparian rights separately, or
convey part of his riparian rights separately (Holmes
v. Nay, loc.  cit.; Forest Lakes Mutual Water Co. v.
Santa Cruz Land Title CbT,
                           98 tal. App. 489, 277 P.
172, 1929; and Doyle v. San Diego Land and Town Co.,
46 F. 709, 18917T

Riparian rights never attach without a specific trans-
fer to land which was not part of a riparian land and
within the watershed (Miller and Lux v. James, 180
Cal. 38, 179 P. 174, 1919); Boehmer v. Big Rock Irr.
District. 117 Cal. 19, 48 P. 908, 1897).  Another
way of saying the same thing would be that if a ripar-
ian tract were granted in separate parcels with no
mention being made of a transfer of water rights, only
the remaining riparian tract held under one title in
the chain of title leading to the present owner would
have riparian rights.

In spite of the case decisions indicating that riparian
rights may be transferred to other lands—even though
the transfer binds only the grantor and his successor
—the State Water Resources Control  Board maintains
that the riparian right cannot be transferred for use
upon another parcel  of land ("Regulations and Infor-
mation, 1973, p.  63).  This position is in opposition
to the case holding  that the right is transferable,
but is in line with  the concept that riparian rights
follow the riparian  land through the chain.  However,
it could easily be in conflict with the state policy
that the maximum reasonable-beneficial  use be made
of the waters of the state (C.W.C.  ilOS).28  Since
a riparian landowner may make reasonable-beneficial
use of his riparian water, the concern  over title
transfers may not be as limiting as it  first appears.

As between riparian owners, priority of right or
priority of uses establishes no priority of right; that
is, one cannot claim a superior right merely because
he used the water first (Pabst v.  Finmand, 1oc.  cit.;
Prather v. Hoberq. 24 Cal. 2d 549,  150  P.  2d 405,
1944).  If there is insufficient water  for the reason-
able-beneficial  requirements of all  riparian owners,
they must share the available supply.  Apportionment
is governed by various factors, including  each owner's
reasonable requirements and uses.   Among the factors
to be considered in apportioning water  between
riparians, the following are included:   the number of
riparians, the aridity of the area,  rainfall, the
length of the stream, the volume of water, the extent
of each ownership, character of the  soil,  relative
possible uses of each tract, profitability of use, land
owned by each claimant and the area  irrigated by each
claimant (Southern California Investment Co. v.
Wilshire, 144 Cal. 68, 77 P.  767,  1904).  The riparian
owner is subject to the doctrine of reasonable use,
which limits all rights to the use  of water to that
quantity reasonably required for beneficial use  and
prohibits waste or unreasonable use, or unreasonable
methods of use or diversion (Cal.  Const. Art. XIV,
§3).  Those limitations provide that in no case  do
riparian rights  attach to water that is being wasted
(Meridian Ltd, v. San Francisco. 13  Cal 2d 424,  90
P. 2d 531, 91 P. 2d 105, 1939; and  Rancho  Santa
Margarita v. Vail, loc. cit.).  The doctrine of
reasonable use which limits the right of the use of
water and prevents the abuse of riparian rights  in
relation to the rights of other riparians  leads  to
some implications for water quality. Between ripar-
ian owners, one of them may take the whole supply if
necessary, for strictly domestic use; that is, so-
called "natural  uses" arising out of the necessities
of life on riparian lands such as household or drink-
ing water both for human consumption and for domestic
animals (Deetz v. Carter,  232 Cal.  App. 2d 851).
The concept of natural use is important in determin-
ing the priorities among riparian rights.   The prim-
ary right of every riparian along the watercourse is
to use the water for the so-called  natural uses  which
have been interpreted to mean domestic  uses (Cowell
v. Armstrong. 210 Cal. 218, 290 P.  1036, 1930).   The
use of water for domestic use is unlimited, even if
a lower riparian owner receives no  water (Duckworth
v._ Watsonyille Water and Light Co.,  150 Cal. 520,
89 P. 338, 1907).

Unlimited use for domestic use is subject  to the
limitation that it must be for noncommercial use
(Cowell v. Armstrong.loc.  cit.; Prather v. Hoberg.
loc. cit.).The next priority in  the use  of water
subject to riparian rights is irrigation (C.W.C.
§106).29  It is  noted, however, that the use for
irrigation is limited to a reasonable share and  a
reasonable use as opposed to domestic use, which may
be unlimited under certain circumstances (Miller
     27See Towner,  1967.
                                                                28See also C.W.C.  101, which indicates  that
                                                          a riparian landowner may make reasonable-beneficial
                                                          use of his riparian right whether transferred  or
                                                          not.

                                                               29See also Smith v. Corbitt, 116 Cal.  587,  48
                                                          P.725, 1897.
                                                     113

-------
 and Lux v. Enterprise Canal Co.. 169 Cal. 415, 147
 P. 567, 1915).30

 Although an upper riparian does get first chance to
 use the water, he may not damage the lower riparian
 by such use (Pabst v. Finmand, loc. cit).   While the
 concept of not damaging the lower user is most often
 seen  in light of the amount of water delivered to a
 lower riparian, he may also enjoin an upper riparian
 in a  nuisance action for polluting the water, where
 the pollution impairs its value for the ordinary
 purposes of life (joerger y. Pacific Gas and Electric
 Cp_.,  207 Cal. 8, 276 P. 1017, 19Z9).  This would seem
 to be a natural result of the reasonable-beneficial
 use concept.

 As has been pointed out, the general rule in
 California for appropriative rights is that changes
 of place of use, point of diversion, the nature of use,
 and diversion works are permissable to the extent that
 the changes do not injure the rights of others (Kidd
 v  Laird. 15 Cal. 161, 1860).  If there is a change in
 the point or means of diversion for statutory appro-
 priations, the change raust be approved by the State
 Water Resources Control Board {C.W.C. 11700, 1702-05).
 For nonstatutory appropriations, the requirement is
 only  that others are not injured (C.W.C. §1706).  What
 constitutes injury is a question of fact in each case,
 but one court has held that prevention of seepage,
 which had been beneficially used by other appropria-
 tors  and which was stopped by an alteration of diver-
 sion  works, was sufficient change to constitute an
 injury (Oannenbrink v. Burger. 23 Cal. App. 589,
 138 P. 751, 1913).  Rights may also be obtained by
 lease, license and contract.  Transfers of water sep-
 arate from the land have been uncommon in California.

 Water rights acquired by appropriation may be trans-
 ferred as appurtenant to land in the conveyance of
 real  property or separate therefrom (Mount Carmel
 Fruit Co. v. Webster. 140 Cal. 183, 73 P.826, 1903).
 California does not have a statute declaring all water
 rights to be appurtenant to the land (Myers and
 Posner, 1971, p. 25).  As with riparian water rights,
 appurtenant appropriative water rights are presumed
 to be transferred when the land is conveyed, and if
 only  upon express reservation in a later conveyance
 of the land, or by express language in the conveyance
 of the separate water right, that the right is
 covered^Hutchins, 1956, pp. 124-27).

 In City of Los Anoeles y. City of San Fernando (123
 Ca1.  Rptr. 1, 537*?.23 1250, 1975), the court held
 that  changing the use of recaptured return waters
 which were returned to ground water was as acceptable
 as changing the place or use of appropriate waters.

 Transfers by Irrigation Pistricts--
 The sale of any water right by an irrigation district
 is prohibited by the Hater Code {C.W.C. §22261).  While
 other sections authorize the sale of district  prop-
 erty," under prescribed conditions, the more specific
 prohibition on the sale of water rights is apparently
 controlling.  Water rights are not "property" for
 purposes of the irrigation district act (Meyers and
 Posner, 1971, p. 25).  However, districts  are per-
 mitted to contract to sell any surplus waters for  use
 either within or without the district, provided that
 the contract is for a period not to exceed three
years (C.W.C. §22259-60).  Rights may be obtained
     3°Mote irrigation has been held to include  a
flooding of grasslands, U.S. v. Gerlack Livestock Co..
339 U.S. 725, 1950.
by lease, license and contract.   Water rights may be
leased as a part of the lease of real  property or they
may be leased separately.  The same restrictions,
however, apply as in the discussion above.   Water
rights may be obtained by license in the same manner
as licenses may create rights in other real  property.
Finally, water rights may be obtained  by contractual
agreement with courts applying general  real  property
contract law (Fawkes v. Reynolds, 190 Cal.  204, 211
P. 449, 1922),  although it has been held that a ripar-
ian was not permitted to contract away his  riparian
rights on riparian land, as against other riparians
(Duckworth v. Watsonville Water and Light Co., loc.
2.2.7  Waste Water Disposal  and Drainage

California history of drainage law is a fascinatina
experience of judicial misstatement of the law and
apprehension to correct the error.  From 1873 to
1966, California applied the civil law or natural  flow
rule.  Believing that it was pronouncing the common
law that prevailed at the time (see
Hutchins, 1974, Vol. II, p.  542), the Supreme Court
of California declared in 1873 that the owner of an
upper field has a natural easement across an adjacent
lower field to discharge diffused surface waters in a
natural depression across the Tatter's land (Oqburn
v. Connor, 46 Cal. 346).  Several attempts were made
to redefine the rule properly during the next 93 years,
but the courts consistently held the civil law rule
had become a rule of property.

In 1966, the Supreme Court reexamined the rule of
drainage due to an apparent variation in application
between rural and urban areas.  Discerning the dif-
ference in application and changing conditions from
the date when the rule was pronounced to the
modernizing urban trend of the 1960's, the court
did a beautiful job of diplomatically having its
cake and eating it too.  It said (Keys v. Romley_,
64 Cal. 2d 396, 412 P.2d 529 at p. 536-537):

      We find the law in California, both as
      to urban and rural areas, to be the tra-
      ditional civil law rule....  But no rule
      can be applied. . .with utter disregard for
      the peculiar facts and circumstances ----
      Ho party, whether upper or lower riparian,
      may act arbitrarily and unreasonably in
      his relations with other landowners and still
      be immunized for all liability.

      It is, therefore, incumbent upon every
      person to take reasonable care in using his
      property to avoid injury to adjacent prop-
      erty through the flow of surface waters ----

      ...If the facts should indicate both parties
      conducted themselves reasonably, then courts
      are bound by our well-settled civil law rule.

2.3  ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS

2.3.1  State Water Agencies

California presently has three principal agencies with
duties in the water rights area.  These are the
Department of Water Resources, the California Water
Commission, and the State Water Resources Control
Board.  Basically, the Water Commission is an advis-
ory board which serves as a watch dog, so to speak,
over the Department of Water Resources' activities,
and confers with and counsels the Director of the
Department.  The Department of Water Resources'

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function is primarily to oversee the operation of
the state water projects and programs.

In addition to these powers, the Department of Water
Resources also has major responsibilities in administer-
ing state and federal grant programs (C.W.C. §133 and
12881 et seq.), and in the appropriation of water for
state projects and programs (C.W.C. §10500 et seq.),
and it is the representative of the state on any commis-
sion to form compacts to control water use within the
state (C.W.C. 5128).  The Department is also charged
with planning and developing water-related recreation-
al resources (C.W.C. §123).

State Water Resources Control  Board--
The statutory mandate of this Board is to "exercise the
adjudicatory and regulatory functions of the state in
the field of water resources" (C.W.C. §174).  The
Board's major responsibilities include administration
of water appropriations statutes and maintenance of
water rights records (C.W.C. §4999-5008).  Although
the Board is limited to a statutory procedure adopted
by the legislature, when considering water rights
applications (C.W.C. §1225) it has discretion to adopt
rules in the conduct of its business in conformity with
the provisions of the California government code.*1

The Board was given broad powers in the area of water
quality control by the Porter-Cologne Water Quality
Act (California statutes 1969, c. 482; C.W.C. §13020
et seq.).  The Board is authorized to hold hearings and
conduct investigations which are necessary to carry out
the powers vested in it.  All  such hearings are required
to be open to the public (C.W.C. §183).  The charge of
the Board in the water quality area is to investigate,
advise, adjudicate, and regulate.  In theory, these
functions are carried out through nine regional
boards (C.W.C. §13200 et seq.), which are to formulate
and adopt regional water quality plans in conformity to
the policies of the state.   In actuality, the regions
set higher control standards than does the state.
The Regional Boards have a  very difficult time
implementing these standards because they have no con-
trol over the granting of the water right in the first
place.  The result is that  a water right is granted by
the State Water Resources Control Board and then it is
left to the Regional Boards to enforce the pollution
standards, when they have had no control  in granting
the right in the first place.   They are always trying
to catch up by doing post-facto planning.

To this point, the water structure in California has
been discussed in very general terms.  What will follow
is a detailed description and analysis of any constraints
or facilitators in the substantive law regarding improv-
ing the quality of the water delivered to the user.  The
analysis will be broken down into three major areas,
These will be:  (1) the water delivery system, or the
obtaining of the water right;  (2) the farm or unit of
application or use of that  water right; and (3) an
analysis of the removal system and any rights which
can be obtained during the  water removal  process.

The responsibility for administering California water
rights falls primarily upon the State Water Resources
Control Board.  All Board activities are governed by
general state water policy.
Management and Administration of Ground Water—
Due to water supplies in the underground basins  in
the arid southern part of California being rapidly
depleted by excessive pumping and in recognition of
the fact that allowing the practice to continue  was
certain to destroy the usefulness of these basins,
the state increased its participation in the manage-
ment of these basins.  Traditional  local management
was joined by state participation through action by
the Department of Water Resources and the State
Water Resources Control Board.

The impetus for basin management was first provided
in Pasadena v. Alhambra (loc. cit.), which enunciated
the doctrine of mutual prescription, thus moving away
from the traditional individual  vested rights analysis.
In reaction to theneed for management from a basinwide
approach, the legislature recognized cessation or re-
duction of extraction of water to permit replenishment
as a beneficial use, and protected the withdrawal
rights of those who ceased extraction and used imported
water on a temporary basis (C.W.C.  §1005.2).  To
prevent salt water intrusions into basins which  have
been overdrafted, the legislature gave the State
Water Resources Control Board the power to enjoin
harmful pumping when a case is referred to it from
the courts (C.W.C.  §2020.1).  The State Water Re-
sources Control Board may also initiate actions  to
restrict pumping and impose physical solutions to
prevent irreparable injury (C.W.C. §2100-2102).

The Water Replenishment District Act (Dewsnup and
Jensen, 1973, p. 152) authorizes the formation of
special districts empowered to levy ad valorem taxes,
pump taxes, and direct charges to exchange and import
water, to replenish underground sources, and to  ini-
tiate adjudication  proceedings.  Only one such dis-
trict has been formed, but other water-oriented
special districts have been formed.

2.3.2  Judicial Bodies

California does not have  special water courts.  As
previously stated,  state  courts are involved in  the
adjudication  of water  rights.

2.3.3  Water  Users  and Their Organizational Structure

Districts--
The number and variety of public districts with  water
resource  interest in  California is extensive.32   There
are county and state  water districts, irrigation dis-
tricts, many  types  of  special districts, regional
districts, and community  service districts—all  with
powers affecting water use or quality.  Added to this
list are  private and  mutual water companies  (Cal.
L.R. 665, 1957).  Private and mutual water associations
are also  recognized in California (Dewsnup and Jensen,
1973).

Generally, an individual  acquires rights to use water
by purchasing shares  of stock in the association or
by entering  into a  contract or by obtaining a convey-
ance  (Dewsnup and Jensen, 1973).  The costs of opera-
tion and  maintenance  are  generally assessed on the
stock.  Shares in either  type of association are
transferable  for water use within the service area,
unless restrictions appear  in the articles of incorp-
oration or on the stock certificate.  Both a private
     31California Government Code, §11371 et seq.,
is the section to which the Board is referred by
California Water Code,  185.  Californi
       32For an excellent discussion of the various
water  districts,  see General Comparison of California
Water  District Acts, Dept. of Water Resources,
Bulletin  Ho.  155, March 1965.
                                                      115

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and mutual water association may become subject to
the jurisdiction of the public utilities commission if
they sell or deliver water for general public use
(Palermo Land and Water Co. v. Railroad Commission.
173 Cal. 380 160 l>.228, 1916).	

Irrigation districts ("Regulations and Information,
1973, p. 63) were authorized by the Wright-Bridgford
Act of 1887 (C.W.C. §20500 et seq.).  Formation paral-
lels that of other districts within the state with
the requirement for approval of the county board of
supervisors, the Department of Water Resources, and,
finally, the voters or property owners within the
district.

An irrigation district is empowered to perform any
act necessary to furnish sufficient water in the
district for any beneficial use (Rogers and Nichols,
1967, p. 68).  It may control, distribute, store,
spread, treat, purify, recapture, and salvage any
water, including sewage waters to the beneficial use
or uses of the district, or its inhabitants, or the
owners of rights to water in the district {C.W.C.
§22078).  It may provide for any drainage made neces-
sary by the irrigation provided by the district (C.W.C.
§22095), and in fact, it has a duty to do so (Sutro
Heights Land Co. v. Merced Irrigation District, 211 Cal.
670, 296 P.1088, 1931).

Subject to the statute of limitations, irrigation dis-
tricts have the power to contract for the exchange
or delivery of water works necessary for delivery
(C.W.C. 122228), to acquire the right to transfer and
store waters (C.W.C. §22226-22228), and to acquire the
right to store water or transport it to facilities
owned by others (C.W.C. S22227).  It may also enter
into a contract to apportion water (Greeson v.  Imperial
Irr. District. 55 F.2d 321, 1931, DC Cal.), and lease
or sell any of its surplus water for use within or
without the district (C.W.C. §22259).  The protection
and conservation of underground water supplies for
future as well  as present use are primary functions
of a water district (Cal.  Civil  Code S3000 et seq.).

An irrigation district must apportion water to each
landowner on the basis of the ratio of his last land
assessment bears to all land assessed by the district
(C.W.C. §22250).  The right of a landowner to
water is limited to actual beneficial use (Nelson v.
Anderson-Cottgnwgod Irr.  District.  51 Cal. App. 92,
196 P.  Z9Z, 1921)-In any event, a 1andowner has
no right to use district water on lands outside the
district (Jenison v. Redfield. 149 Cal.  500, 87 P.
62, 1906).   The district may contract to supply water
to a mutual  company (C.W.C. S22253-22254).  California
statutes regarding irrigation districts provide that:

     A majority in number of the holders of title
     to land susceptible of irrigation from a com-
     mon source and by the same system of works,
     including pumping from subsurface or other
     water,  who are also the holders of title to
     a  majority in value of the land may pro-
     pose the formation of the district under
     the provisions of this division; or the
     formation of the district may be proposed
     by not  less than 500 petitioners, each of
     whom is an elector residing in the proposed
     district or the holder of title to land
     therein and which petitioners  include the
     holders of title to not less than 20 per
     cent in value of the land included within
     the proposed district (C.W.C.  §22700).

Further,  a  district is  authorized to:
       ...do any act necessary to furnish
       sufficient water in the district for any
       beneficial use  (C.W.C. §22075).

The purposes of a district are set forth in Section
22078, which states:

       A district may  control, distribute, store,
       spread, sink, treat, purify, recapture,
       and salvage any water including but not lim-
       ited to sewage  waters for the beneficial use
       or uses of the  district or its inhabitants or
       the owners of rights to waters therein.
       A district may  provide for any and all
       drainage made necessary by the irrigation
       provided for by the district (C.W.C. 122095).

The duty to apportion is set forth in Section 22250,
which  provides that:

       All water distributed by distrists for
       irrigation purposes shall except when
       otherwise provided in this article be
       apportioned ratably to each landowner
       upon the basis  of the ratio which the
       last assessment against his land for
       district purposes bears to the whole
       sum assessed in the district for dis-
       trict purposes.

An Improvement District may be formed from lands
which  are not contiguous for one or the following:

       (a) Irrigation or domestic water service
       by a system of  pumps or conduits or both.
       (b) Drainage or flood control.
       (c) Acquisition of existing works incidental
       to a water distribution system separate from
      or supplemental to the works of the district.
       (e) Maintenance of irrigation works of  the
      district and works for water supply or
      drainage or both in or for the improvement
      district.
       !f) Control of weeds in or along conduits
       C.W.C. 123600).

County drainage districts are set up to control storm
and other waste waters, protect property from damage and
to conserve such waters for beneficial  purposes (C.W.C.
§56040).

2.4  POLLUTION CONTROL

Appropriative water rights include a right to a cer-
tain flow of water and to a reasonable state  of purity
necessary for the beneficial uses intended (Rickey
Land and Cattle Co. v. Miller and Lux. 152 F. 11,
1907 CA 9 Cal.).  However, some deterioration within
reasonable limits has been held not to be actionable
(Dripps v. Allison's Mines Co., 45 Cal.  App.  95,
187 P. 448, 1919).	

California adopted comprehensive water quality control
laws when the Porter Cologne Water Quality Control Act
was enacted in 1969 (C.W.C. §13020 et seq.).   It is
administered by the State Water Resources Control
Board, the Water Quality Advisory Committee,  and nine
California regional  quality control  boards.   The nine
regional boards are within the state resources agency.
The Advisory Committee consists of the chairman, the
regional board, and nine persons, each of a specified
discipline appointed by the Governor (C.W.C.
§13120, repealed by Stats.  1972, Ch.  813, §1).  The
committee advises the State Board which  is the
principle1 policy-making and pollution control
                                                     116

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agency working in coordination with the regional
boards on pollution control.

The purpose of combining the functions of the
former State Water Rights Board and the State Water
Quality Control Board into one agency—the State
Water Resources Control  Board—was to provide for
consideration of water pollution and water quality
along with the availability of unappropriated water
whenever an application for an appropriation of
water is granted (C.W.C. §174).  This purpose was
implemented by various amendments to the water
code, which declared legislative intent to protect
water quality for beneficial uses as a major con-
sideration of the Board when it authorizes new
appropriations of water (C.W.C. §1242.5, 1243.5,
1258).

The State Water Resources Control Board is respons-
ible for formulating the state's policy in accord-
ance with the California water plan, jegislatively
declared guidelines, and approved regional plans.
All state agencies and officers are to abide by
the policy and are encouraged to participate in this
formation (C.W.C. §13140-13146).  In addition to
formulating and adopting state policy, the Board
serves as a state water pollution control agency
for all purposes required by the federal water
pollution laws (33 USCA 4669-1 et seq. and 1151 et
seq.).  It conducts research, coordinates investi-
gations of other agencies, operates statewide data
storage, and retrieval systems, conducts a public
information program, allocates funds to regional
boards, and regulates and enforces oil clean-up
activity (C.W.C. §13161-13169).  A further major
responsibility is a review of actions taken by the
regional boards.  Such review is the final administra-
tive action taken by the state, but is subject to
judicial review by writ of mandate issued by the
state courts (C.W.C. §13320-13330).  Quality control
at the regional level plays a crucial role in the
state's quality control system.  The regional
Boards formulate and adopt regional plans which estab-
lish water quality  objectives to protect beneficial
uses and prevent pollution.  The regional Boards then
administer and enforce these regional plans (C.W.C.
§13200 et seq.).

REFERENCES

	, The California Water Plan. Dept. of Water
Resources, Bulletin No. 3,  May  1957.

	, Determination of Rights  to the Use of water
in California. State Water  Resources Control Board
publication, 1975.

Dewsnup, Richard L. and Dallin  W. Jensen, A Summary-
Diqest of State Mater Laws, a  report to the National
Water  Commission, Washington,  D.C.,  1973.

	, General Comparison of California Water  District
Acts,  Dept. of Water Resources  Bulletin No.  155,
Harch  1965.

	, General  Information  Pertaining  to Water  Rights
in California, a publication of the State Water  Re-
sources  Control  Board,  1974.

Hutchins, Wells  A., Mutual  Irrigation  Companies  in
California and Utah.  Farm Credit Administration,
Cooperative Division, Bulletin No.  8,  Oct.  1936.

Hutchins, Wells  A., The California  Law of Water
 Rights.  1956.
Hutchins, Wells A., Water Rights  in the Nineteen
Western States. Misc. Publication No.  1206,  U.S.
Dept. of Agriculture, Vols.  1 and 2, 1971.

Leach, Ron, "Irrigation in California," California
Farmer, Jan. 3, 1976, pp. 6-8.

	, "Legal Breakthroughs on Ground Water  Manage-
ment," California's Environment,  cooperative
extension bulletin No. 27, from University of
California, Oct. 1975.

Meyers and Posher, Market Transfers on Water Rights,
National Water Commission Legal Study No. 4, July
1971.

Meyers and Tarlock, Water Resources Management. The
Foundation Press, 1971.

	, Regulations and Information Pertaining to
Appropriation of water in California. State  Water
Resources Control Board Publication, 1973.

Rogers, Harold E. and Allan H. Nichols, Water For
California, Bancroft-Whitney, Vol. 1, 1967.

Schelhorse, Larry D., et al., The Market Structure
of the Southern California Water Industry,  June  1974.

Seckler, David  (ed.), California Water:  A  Study  in
Resource Management, Univ. of Calif. Press,  1971.

Stewart, Ian J., Irrigation  in California:   A Report
to the State Water Resources Control Board,  Univ.  of
Calif, at Davis  , June 1975.

Towner,  Porter A., "Some Legal Aspects of Watershed
Development, 3  Lincoln Law Review 35, 1967.

Trelease, Frank J.,  "The Concept of Reasonable
Beneficial  Use  in the Law of Surface Streams," 12
Wyoming  Law Journal  1, 1957.
                                                      117

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                                             APPENDIX A REPORT 3

                                                   COLORADO
3.1  HISTORICAL BACKGROUND

Colorado lies within the region of the United States
typically classified as semi-arid.  The state receives
an average annual precipitation of 17 inches on its
104,247 square miles with a wide variation of more
than 50 inches in the high mountains to 12 to 16
inches on the eastern plains and 7 inches  in the
San Luis Valley.

In 1970, water withdrawn from ground and surface
sources for irrigation of 4.6 million acres amounted
to 13,000 m.g.d. (Geraghty, 1973).

Throughout Colorado's history, water regulation has
been synonomously thought of with water use.  In
1861, the territorial legislature acknowledged
riparian rights of water users for agricultural
purposes:

     All persons who claim, own or hold a possessory
     right or title to any land or parcel  of land
     within the boundary of Colorado Territory , . .
     when those claims are on the bank, margin or
     neighborhood of any stream of water,  creek or
     river, shall be entitled to the use of the
     water of said stream, creek or river, for the
     purposes of irrigation, and making said claims
     available, to the full extent of the soil, for
     agricultural purposes  (Session Laws of 1861.
     Act of Nov. 5, 1861, P.I, 1861, Colorado Laws
     67, Amended 1866).

Subsequent laws and statutes ruled out the possibility
of riparian rights and recognized only appropriation
rights in Colorado.1

In 1864, the Territorial Legislature enacted a law
that prohibited the waters of any stream from being
diverted from its original channel to the detriment
of any miner, millman, or others along the line of
the stream who had a priority of right and required
that sufficient water be left in the stream for the
use of miners and agriculturists along the stream
(Session laws of 1864, P. 32, p. 68).

In 1876, the Colorado Constitution was adopted and
therein it is stated that:

    The  water of every natural stream, not heretofore
    appropriated, within the state of Colorado, is
    hereby declared to be the property of the public,
    and the same is dedicated to the use Of the
    people of the state, subject to appropriation as
    hereinafter provided  (Colorado Constitution,
    Article XVI, Sec. 5).

The concept of prior appropriation, as expressed in
the constitution, has been carried throughout the
entire body of law and legislation since the time of
its enactment.  In 1889, an act was passed by the
'See Radosevich, G. et al. Evolution & Administration
of Colorado Water Law: 1876-1976. Water Resources
Publications, Ft. Collins, Colo., 1976, and "Survey
of Colorado Water Law," 47 Denver Law Journal  ?66,
1970.
General Assembly stating:

     That all ditches now constructed or hereafter to
     be constructed for the purpose of utilizing the
     waste, seepage or spring waters of the state,
     shall be governed by the same laws relating to
     priority of right as those ditches constructed
     for the purpose of utilizing the water of running
     streams  (Session Laws of Colorado, 1889, (S.B.
     14) 7th Session of the General Assembly,  p. 215).

In 1872,the first court decision in Colorado dealing
with the appropriation doctrine was banded down.  This
case gave preference to the appropriation doctrine and
also established the procedure of obtaining an
easement to convey water across another's land in
order that the water might be applied to a beneficial
use  (Yunker v. Nichols. 1 Colo. 551, 1872).

The case in Colorado confirming the appropriation
doctrine was Coffin v. Left Hand Ditch Co. (6 Colo.
443, 1882).  Herein, the court held that the appro-
priation doctrine had been the accepted practice
since the earliest days of the territory.  Based on
the Session Laws of 1864 and previous cases, the
Colorado Supreme Court held in the Coffin case that:

     .  . . the common law doctrine giving the riparian
     owner a right to the flow of water in its natural
     channel upon and over his lands even though he
     makes no beneficial use thereof, is inapplicable
     to Colorado .... And we hold that, in the
     absence of express statutes to the contrary, the
     first appropriator of water from a natural  stream
     for a beneficial purpose has with the qualifica-
     tions contained in the constitution, a prior
     right thereto to the extent of such appropria-
     tion.

In the early development of the prior appropriation
doctrine, it is important to note that a water right
was created by a diversion of water (no longer
required for the state in certain instances) and  its
application to beneficial use.  The decree of that
right issued by the judge placed the right in the
priority system.  Failure to get the right decreed
rendered it junior to those who had adjudicated  their
right  (Hardesty Reservoir, Canal and Land Co. v.
Arkansas Valley Sugar Beet and Irrigated Land Co..
85 Colo. 555, 277 P. 763, 1929).2  However, water
rights perfected before the recording system was
adopted were not affected (Larimer and Weld Reservoir
Co. v.  Fort Collins Milling and Elevator Co., 60 Colo.
241, 152 P.1160, 1915).

This system of rights adjudication by judicial decree
was modified by the passage of the Water Right
Determination and Administrative Act of 1969 (Colo.
Rev. Stats., §37-92-101 et seq., as amended).   This
Act created special water rights and made some
administrative changes in the water rights system.
Decisions may be appealed to the judicial system, so
Colorado still maintains a judicially oriented water
law.
2See Colo. Rev. Stats. §148-21-22 (Supp. 1971) for a
codification of the principle.
                                                      118

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Little legislative or court action is found concern-
ing ground water inthe early history of Colorado due
to the lack of extensive use of ground water supplies
until recently.  The first legislative step toward
controlling ground water occurred in 1953, following
the Supreme Court's finding in Safranelc v. Limon (123
Colo. 330, 228 P.2d 975, 1951),3   that^cTl orado water
law was deficient with respect to ground waters.   The
law authorized ground waterstudies and required
filing well logs.

The first "ground water law" was passed in 1957 and
was applicable to all subsurface waters.  The four
major provisions of the law were:  (!) by July, 1960,
all ground water users must file statements with the
State Engineer, setting forth such information as
the nature, extent, location, and quantity of their
withdrawals and use;  (2) a ground water commission
was created;  (3)  the commission had the power to
designate "tentatively critical ground water
districts in areas where the withdrawal of ground
water appears to have approached, reached, or
exceeded the normal rate of replenishment;" and
(4) no new wells could be drilled or the supply from
existing wells increased without first obtaining a
permit from the State Engineer.  This law set the
basic institutional framework for ground water
allocation and management in Colorado.  However, due
to the particular limitation for maintaining an area
as "critical" under the 1957 Act, it was repealed
and reenacted in 1965  {Moses,  1966).

The present statutory status of ground water laws in
Colorado is the result of two major legislative
enactments and subsequent amendments to the basic
acts.  In 1965, the "Ground Water Management Act"
was adopted  (Colo. Rev. Stat. Ann., §§148-18-1 to
38, 1965 Supp., now cited as Colo. Rev. Stats.,
§§37-90-101 to 141).  It primarily addressed the
non-tributary waters.  The lack of specific legisla-
tion or judicial guidance for tributary waters and
the emerging problems in the Arkansas, South Platte,
and Rio Grande Valleys led to the enactment of the
Hater Right Determination and Administration Act of
1969  (Colo Rev. Stats. §§37-92-101 to 602).  Aside
from sweeping changes in the process of water
administration and the introduction of a tabulation
system, the 1969 Act attempted to fill the gap in
legislation by addressing the tributary ground water
issue.

These two acts are thus consistent with an early
Colorado decision recognizing two categories of
groundwater:  (1) tributary ground  water;  and  (2)non-
tributary groundwater (Medano Ditch Co. v. Adams,
29 Colo. 317, 68 P. 431, 1902T  The court held the
former refers to waters that, if left to flow, will
become part of a natural stream, and the latter
refers to waters which will not become part of any
natural stream.

3.2  SUBSTANTIVE LAW

The appropriation doctrine is entrenched in Colorado.
It is founded on a basis of statutory and case law.
In general,the Colorado Doctrine of Prior Appropria-
tion has four major elements:  (1) water in its
natural course is the property of the public and is
not subject to private ownership; (2) a vested
right to use the water may be acquired by appropria-
tion for a beneficial use (see Colorado Constitution,
Article XVI, Sec. 6); (3) the first person in time
to use the water is first in right; and (4)
beneficial use is the basis, the measure, and the
limit of the right (Hamburg, 1968).•*

3.2.1  Property Right in Water

The Colorado Constitution states in part that:

    The water of every natural stream, not heretofore
    appropriated, within the state of Colorado,  is
    hereby declared to be the property of the public,
    and the same is dedicated to the use of the
    people of the state, subject to appropriation as
    hereinafter provided  (Colorado Constitution,
    Article XVI, Section 51-

In Stockman v. Leddy (55 Colo. 24, 129 P. 220,  1912)
the Colorado Supreme Court stated that:

    The state has never relinquished its right of
    ownership and claim to the waters of our natural
    streams^ •though it has granted to its citizens,
    upon prescribed conditions, the right to the use
    of sach waters for beneficial purposes and within
    its own boundaries.

The "Mater Right Determination and Administration Act
of 1969" further states that:

    It is hereby declared to be the policy of the
    state of Colorado that all waters originating
    in or flowing into this state,..whether found on
    the surface or underground, have always been
    and are hereby declared to be the property of
    the public, dedicated to the use of ;the people
    of the state, subject to appropriation and use
    in accordance with law.  As incident thereto, it
  ,  shall be the policy of this state to integrate
    the appropriation, use the administration of
    underground water tributary to a stream with
    the use of surface water, in such a way to
    maximize the beneficial use of all of the waters
    of this state  (C.R.S. 537-92-102).

The words "waters of this state" refer to all surface
and underground water in or tributary to all natural
streams within the state of Colorado.  Thus, all
surface and subsurface waters are subject to
appropriation.  This condition is further specified
by the statement of law that: "All designated ground
waters in this state are therefore declared to be
subject to appropriation in the manner defined in
this article" (C.R,S. S37-90-102).

A number of cases have upheld the legislative provi-
sions that ground water physically tributary to  a
stream system, whether they be seepage or waste
waters, are subject to appropriation to the same
extent as is surface water  (Genoa v. Westfall.  141
Colo. 533, 349 P.2d 370. 1960; Black v. Taylor.  128
Colo. 449, 264 P.2d 502. 1953; Nevius v. Smith.  86
Colo. 178. 279 P. 44, 1928; Hcdellan v. Hurdle. 3
Colo. App. 430, 33 P. 280, 1893).  With respect  to
3See also David L. Harrison and Gustave Sandstrom, Jr.
"The Groundwater-Surface Water Conflict and Recent
Colo. Legislation," II. of Colo. Law Review 43, 1971.
'•See Colorado River Water Conservation District v.
Rocky Mountain Power Co., 158 Colo.. 331, 406 P.2d
798, 1965, and Four Corners WaterJJsers Association
v. Colorado River Water Conservation District, 159
Colo. 499, 414 P2d 469, 1966.
                                                     119

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natural springs, the statute provides that "the waters
of natural flowing springs may be appropriated for
all beneficial uses and the priorities of such
appropriation may be determined as provided by law
{Colo. Rev. Stats., §37-82-103).  The person upon
whose lands spring waters first arise has a priority
in their use as long as such waters are usable
upon his land  (Colo. Rev. Stats., §37-82-102).

The courts have held, with respect to developed waters
that the parties who increased the flow of a stream
could appropriate water on the basis of the increase
in average and continuous flow.  These parties have
not been allowed nor entitled to the original flow
as against the rights of prior appropriation (Platte
Valley Irrigation Co. v. Buckers Irrigation, Mining.
and Improvement Co.. 25 Colo. 77. 53 P. 334. 1898).'

The importance of this distinction between developed
water and salvaged water was illustrated late in 1974
in the case of Southern Colorado Water Conservancy
District v. Shelton Farms  (529 P. 2d 1321. 1974).
In this case, the controversy arose over an attempt
to have water salvaged as a result of cutting
phreatophytes (water-loving plants) along the river-
given earliest priority on the stream.  The reasoning
was that the water was being consumed and so lost to
other appropriators by a source predating all
priorities.  In denying the claims, the Colorado
Supreme Court ignored the point concerning
"seniority" of trees and dealt with the issue by
sharply delineating "developed water" from "salvaged
water."

The Court made it clear that developed water would be
given a priority free from call on the stream since
the water would not have been a part of the river
system but for the activities of the developer.
Therefore, it never would have been available to the
other users.

Salvaged water, on the other hand, would not be given
a priority free from call on the stream since this
water was part of the stream and was simply being
denied to senior appropriators as a result of the
practice of wasting it.  And, to recognize such
senior rights to salvaged water would raise havoc
with the traditional appropriation doctrine and give
a "last in time, first in right" effect.  Salvaged
waters are appropriable,but they are given no
preference with rwjard to priority.

As previously stated, title to all of the surface and
underground water of the state of Colorado is the
property of the public, and is "dedicated to the use
of the people of the state."5  Once the waters have
been applied by the appropriator to a beneficial use,
the right of the use of the water passes to the
appropriator and he obtains a real property right
(Denver v. Sheriff. 105 Colo. 193, 96 P.2d 836, 1939).
This right to use water has been referred to by many
terms.  In the case of Wyatt et al. v. Larimer et al.
Co., the court stated that:

     The appropriator becomes the proprietor of the
     water or the user of the water—it is immaterial
     which term is used, they are in effect the same
     —and he remains the proprietor owner of the
     use, so long as the beneficial use to which it
     was appropriated is continued  (18 Colo. 298,
     33 P. 144, 1893).

In the Coffin case, the courts state that the right to
the use of the water is an "usufruct" and when one
acquires this right, it is an "usufructuary" right
 (Coffin  v.  Left  Hand Ditch Co., 6 Colo. 443, 1882).
 Specifically an  usufruct  is the right of enjoying
 a  thing, the property of  which is vested in another
 (in  this case  the  state)  and to draw from the same
 all  the  profit,  utility,  and advantage which it
 may  produce providing it  be without altering the
 substance of the thing  (Black's Law Dictionary, 4th
 Edition, revised,  1968 ).

 The  nature  of  the  water right and the' right to the
 actual water must  be distinguished.  Once water has
 been appropriated  and diverted from a natural stream
 into ditches or  other artificial works, it then
 becomes  personal property  (Tongue Creek Orchard
 Co.  v. Town of Orchard City. 131 Colo. 177, 280
 P2d  426, 1955).  A water  right when perfected by
 appropriation  and  beneficial use constitutes
 realty in the  nature of a possessory right  (Knapp
 v. Colo. River Water Conservation District, 131 Colo.
 42,  279  P.2d 420,  1955).  But, it cannot be said
 to have  achieved the same dignity as an estate in
 fee  or a freehold  estate  because it is dependent
 upon the continuous use of the water  (Ibid.)-  The
 right which an appropriator gains is a private
 property right,  subject to ownership and disposition
 by him as other  private property  (Denver, v.
 Sheriff, supra).    In Comstock v. Olney Springs
 Drainage District   (97 Colo. 416, 50 P2d 531, 1935)
 the  Colorado Supreme Court stated that the appro-
 priative right is  an interest in real property.  In
 summary, the water right  is a real property right;
 the  water is public property until diverted into
 the  right holder's conveyance system, upon which
 time it becomes  his personal property.  The
 unconsumed  waters,  which escape the right holder's
 control and domain,revert back to public property
 status, subject  to appropriation or use by other
 vested right holders.

 3.2.2.  Acquisition of Right

 General--
 Colorado is unique in its system of acquiring water
 rights.  Unlike most of her sister states, she
 has  a different  system for acquiring water rights
 to waters classified as surface and tributary
 ground waters  and  those classified as designated
 ground waters.   For the former, no administrative
 steps are required, but to obtain a perfected water
 right with  a priority date, a procedure in special
 water courts,  hereinafter described, must be
 followed.   For non-tributary ground water, the state
 has  adopted a  permit system.

 In Colorado, prior to 1969, there were two require-
 ments to be met  in  order to acquire a water right.
 First, there must  be a taking of the water and,
 second, it  must be  applied to a beneficial  use
 (Black's Law Dictionary, 4th Edition). The term
 "taking" has usually referred to the physical  act
 of diverting water from the stream or channel
 (Arizona v.  California. 56 S. Ct. 848, 298 U.S. 558).
 but  this condition  was changed in 1969 with a
 redefinition of appropriation to mean the application
of certain  portions of the waters of the  state to
 beneficial  use   (Colorado Springs v.  Bender,  148,
5For cases dealing with right to use by people, see
Wyatt v. Larimer and Weld Irrigation Co.. 1  Colo.
App. 480, 29 P.906, 1892;  Monte Vista Canal Co.  v.
Centennial Irrigation Co., 22 Colo.  App.  364, 123 P.
831, 1912; La Plata River Co. v. Hinderlider. 93
Colo. 128, 25 P.2d 187, 193T:
                                                      120

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Colo. 458, 366 P.2d 552, 1961).  However, an appro-
priator cannot "take" the whole stream to insure that
he receives his due amount  (33 Colo. 392. 81 P. 37,
1905).

The Colorado Constitution states that  "the  right  to
divert the unappropriated waters of any natural
streams to beneficial uses shall never be denied
(Colorado Constitution, Article XVI, Section 6).  In
Colorado, however, as in most appropriation states,
the right to appropriate water is limited (1) if
there is no unappropriated water available from the
proposed source; (2) if the granting of the right
would harm an existing water right; (3) if the
proposed appropriation is contrary to the public
welfare; and/or (4) if the right is limited on the
basis of the time during which the water may be used
(C.R.S. §37-82-104).  It has also been held
that, when an appropriator makes use of the water
during certain days of the year, other parties are
allowed to acquire the portion of the right unused
(Cache la Poudre Reservoir Co. v. Water Supply and
Storage Co.. 25 Colo. 161, 53 P.331, 1898).

One of the best statements on the subject of
appropriation and its requirements is set forth in the
case of City and County of Denver v. Northern Colorado
Water Conservancy District  (130 Colo. 375, 276 P.2d
992, 1954).Therein, concerning the basic law of
appropriation in Colorado, Justice Stone stated:

     (1)  that priority of appropriation shall give
     the better right as between those using the
     water for the same purpose; (2) that as to the
     rights here involved, a municipal corporation
     has no different status from that of an indivi-
     dual or any other party to the proceeding;
     (3) that although an appropriation is not
     complete until actual diversion and use, still,
     the right may relate back to the time when the
     first open step was taken giving notice of
     intent to secure it . . . ; (4)  that right
     to relate back is conditional that construction
     thereafter was prosecuted with reasonable
     diligence, and conditional further that there
     was then a fixed and definite purpose to take
     it up and carry it through (Ibid, at 377, 276
     P.2d at 994).

The above case specified that diversion is the
physical act of taking the water from the stream.
(130 Colo. 375, 386, 276 P.2d 992, 998, 1954).
Several cases have held that the method by which the
water is removed is immaterial   (Thomas v. Guiraud.
6 Colo. 530, 533, 1883; Colorado River Water Conser-
vancy District v. Rocky Mountain Power Co.,158 Colo.
331, 406 P.2d 798. 1965; Genoa v. Mestfall, 141 Colo.
533, 349 P.2d 370, 1960.   Note there must be a
segregation of the claimed resource from that which
is not claimed). For example, in Town of Genoa v.
Westfall. a prior and valid appropriation was claimed
through customary watering of cattle directly from
the stream without any diversion by artificial means
(141 Colo. 553, 349 P.2d 370, 1960).  The court
upheld the priority and thereby recognized the
appropriation as valid when it ruled that:

     It is not necessary in every case for an
     appropriator of water to construct ditches or
     artificial ways through which the water might
     be taken from the stream in order that a valid
     appropriation be made.  The only indispensable
     requirements are that the appropriator intends
     to use the waters for a beneficial purpose and
     actually applies them to that use  (Ibid,  at
     547, 349 P.2d at 378).

The traditional and basic requirements  for the
establishment of a water right under the "Colorado
Doctrine" have been (1) intent to apply to  beneficial
use; (2) actual diversion of the water; and  (3)
application to beneficial use.  In the above
ruling, the court seemed to eliminate the second
of these requirements.  This decision appeared, at
first, to depart from the position taken in  City
and County of Denver v. Northern Colorado Hater
Conservancy District when the court denied  Denver  the
right to store water for transport at a later date
when tunnel space would be available   (City and
County of Denver v. Northern Colorado Water  Con-
servancy District, 130 Colo. 375, 276 P.2d  992. 1954).

The confusion caused by the courts has been  cleared
up to some extent by the legislature which  has
defined a diversion as:

     ... a means of removing water from its
     natural course or location, or controlling
     water in its natural course or location, by
     means of a ditch, canal, flume, reservoir,
     bypass, pipeline, conduit, well, pump,  or
     other structure or device (C.R.S.
     §37-92-103(5)).

More to the point, a recent legislative declaration
defines an appropriation as "the application of a
certain portion of the waters of the state  to a
beneficial use  (C.R.S.  37-92-103(3)).
The word diversion is not mentioned.  The statute
goes on to allow the State of Colorado to:

     .  .  . appropriate for fisheries and wildlife
     (defined as a beneficial use) by maintaining
     minimum flows between specific points  or levels
     on natural streams and lakes as are required
     to preserve the natural environment to  a
     reasonable degree  (C.R.S.  37-92-103(4)).
The most recent judicial interpretation holds that
the "first step" in appropriating water must involve
two elements  (Central Colorado Water Conservancy
District v. City of Denver. Colorado, 539 P.2d 1270,
1975).  The first is an intent to ta~ke water.  The
second is to accompany the first by some open,
physical demonstration of intent to put the water
to beneficial use.  The Supreme Court went on to
say that the first step is always to be determined
by the facts of each case,and filing maps was only
an indication of intent.  The second element of
some open demonstration on land was not present, and
thus an appropriation did not take place until the
first step was completed.

Priority is determined in an adjudication proceeding
before a water judge.  An application is made to
the diversion water clerk and may be referred to a
referee or decided by a water judge.  Priority means
"the seniority by date as of which a water right will
be entitled to use and the relative seniority of a
water right or a conditioned water right in relation
to other water rights and conditional water rights
deriving their supply from a common source (C.R.S.
§37-92-103).

Appropriators are entitled to a supply in the order
of their priority.  Thus, the most senior appropria-
tor is entitled to his quantity without interference,
                                                      121

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 (Comstock v.  Ramsey.  55 Colo.  244,  133 P,  1107,  1913)
 even if his right is  for storage for future use
 (People v.  Hinderlider. 505 P.2d 894, Colo.  1936),
 even when there is insufficient water in the source
 of a common supply to meet the demands of  junior
 appropriators  (Strickler v.  Colorado Springs, 16
 Colo.  61, 26  P.  313,  1891).

 Junior appropriators  have a right to have  stream
 conditions  remain as  they existed at the time of
 their appropriations   (Fanners Highline Canal and
 Res. Co.  v. Golden. 129 Colo.  575,  272 P.2d 629,
 1954).An  appropriator cannot change his  manner of
 diversion and use of  water in  any way that would
 alter stream  conditions to the injury of junior
 appropriators who are entitled to rely on  the
 continuance of such conditions  (Enlarged  Southside
 Irr. Ditch  Co.  v.  John's Flood Ditch Co..  116 Colo.
 580, 183  P.2d 552,  1947).

 The following procedures are outlined in the statutes
 for filing  an application for  a water right before
 the appropriate water judge.6

    1.   Any  person who desires  a determination of a
        water  right or a conditional  water  right  and
        the  amount and priority thereof, including a
        determination  that a conditional water right
        has  become a water right by  reason  of the
        completion of  the appropriation, a  determina-
        tion  with respect to a change of a  water
        right,  approval  of a plan for augmentation
        or quadrennial  finding  of reasonable
        diligence,  shall  file with the water clerk
        in quadruplicate a verified  application
        setting forth  facts supporting the  ruling
        sought, a  copy of which shall  be sent by
        the water  clerk to the  State Engineer and
        the Division Engineer.
    2.   Opposing statements may  be filed with the  Water
        Clerk, who  provides copies of opposition  to
        State  and Division Engineers.
    3.   The  (water  right application)  filing  fee  is
        $25; in filing  a  statement of  opposition, the
        fee is $20.
    4.   Within sixty days  from  the last day  on which
        statements of opposition may  be filed with
        respect to a particular application,  the
        referee shall make his  ruling  on such appli-
        cation unless he  determines  to refer  the
        matter to the water judge. (Note:  This ruling
        shall  give the  name or  names of the  applicants
        with respect to  the water right involved, the
        location of points  of diversion or storage
        and the means of  diversion, the type  of use,
        the amount and priority along with other
        pertinent  information.   In the case of augmen-
        tation, the ruling  shall  include a complete
        statement of the  plan as  approved or disap-
        proved.)  The ruling shall be  filed with  the
       water clerk and  shall become effective with
        such filing.   It  shall  then be mailed by  the
       water clerk by certified mail  to the applicant
        and to each person  who  filed a statement of
        opposition and to  the Division Engineer and
        State Engineer.
6A discussion of the water courts' structure can be
found in 10.3.2, infra.  Each Division  Water Judge
has authority, under C.R.S., 537-92-302(2), to
prepare forms and regulations for his division.
        Within twenty days after the date of mailing,
        any person who wishes to protest a ruling of
        the referee shall file a written protest
        with the water clerk and a copy thereof with
        the referee.  This protest shall clearly
        identify the ruling being contested and
        shall state the factual and legal grounds
        for the protest. The fee for filing a protest
        is twenty dollars plus additional costs for
        mailing except that a person who was a party
        to the action is not required to pay the
        twenty-dollar filing fee.  For each
        appearance filed by an interested party, the
        twenty-dollar filing fee does apply if he
        were not an applicant or protestant to the
        original action.
    5.  The Water Judges are required to provide the
        clerks with standard forms to be used for
        applications.
    6.  No later than the end of the month, the Water
        Clerk is directed to publish a resume of
        applications in a newspaper or newspapers
        sufficient to achieve general circulation.
        This procedure may be augmented by radio and
        television broadcasts at the discretion of
        the Water Judge.
    7.  Mo later than the end of the month, a copy of
        the resume will be sent to each person whom
        the referee believes would be affected by
        the action.
    8.  Within sixty days from the last day on which
        statements of opposition  are filed, the
        referee shall make his ruling.  The
        referee may disapprove the application in
        whole or in part, he may approve it or
        send the matter to the Water Judge.
    9.  The Water Judge (on the date set forth) is
        directed by law to consider cases referred to
        him for the past six months and select a
        hearing date.
   10.  In cases where a protest has been filed or
        matters referred by the referee to the judge,
        a hearing will be held.  The judge is not
        bound by the findings of the referee.
   11.  A decision of the Water Judge with respect
        to a protested ruling of the referee shall
        either confirm, modify, reverse, or reverse
        and remand such ruling.  The judge shall
        confirm and approve a ruling of the referee
        with respect to applications in which no
        protest was filed . . .
   12.  Appellate review shall be allowed to the
        judgment and decree, but none will  be
        allowed with respect to that part of the
        judgement of decree which confirms  a ruling
        with respect to which no protest was filed.

In making a determination of the water right, the
following standards are required by law to be
considered  (C.R.S., §§37-92-305(1), (3), and (5)).

    1.  R-ioritydate awarded shall  be that  date on
        which the appropriation was initiated if the
        appropriation was completed with reasonable
        diligence.
    2.  A change of water right or  plan for augmenta-
        tion :shall  be approved if such change will
        not injuriously affect the  owner of or persons
        entitled to use water under a vested water
        right of a decreed conditional  water right.
    3.  Any substituted water shall  be of a quality
        and quantity so as to meet  the requirements
        the senior appropriator has normally been
        used to.
                                                      122

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Three cases have decided problems of interpreting
the statutes just set forth.  The first case,
Baumgartner v. Stremel,  held that the Water Court
set up under C.R.S., §37-92-101 et seq., did not
have exclusive jurisdiction over matters of water
distribution and use  (496 P.2d 705 Colo. 1972).
Rather, the District Court has jurisdiction to
prevent irreparable injury and to enforce court
orders designed to prevent such injury.  This type
of injury includes using more water than is
necessary to irrigate land.

The question of jurisdiction arose again in North
Kiowa-Bijou Management District v. Ground Mater
Commission wherein a landowner sought to export
water outside the District boundaries  (505 P.2d
377 Colo. 1973).  The District refused the request
to export an amount equal to what the plaintiff was
entitled to consume under the laws of appropriation.
The landowner appealed to the Water Commission.  The
District objected that the Commission did not have
jurisdiction to hear the appeal.  The Court held
that:

    1.  The statutes take precedence over the
        Administrative Code.  Under C.R.S.,
        §37-92-102 et. seq., the administration
        of ground water is placed in the Water
        Commission, but the review provisions of
        §§37-90-130 to 37-90-131 relate only to
        promulgation and adoption by the local
        districts of proposed regulations.  These
        regulating provisions do not speak to
        individual actions taken by the District
        concerning interpretation, enforcement, or
        compliance with District rules.

    2.  The District Court is the competent review
        body for the Districts within each court's
        jurisdiction.

The third case interpreting these statutes was _In_
Re Water Rights in Irrigation Division No. 1,
Irrigation District No.  1 in which petitions sought
to transfer well water 8,000 feet from the land on
which it was recovered.   This was in violation of
the District policy of using well water only on the
land specified in the permit to dig the well  (510
P.2d 323, Colo. 1973).  The court held that:

    1.  The Water Commission could review rules and
        regulations generally applicable to users
        within the District but that specific
        decisions were to be adjudicated by District
        Court in accordance with North Kiowa-Bijou
        District v. Ground Water Commission(505
        P.2d 377, Colo.  1973).

    2.  The setting up of an administrative agency
        to administer ground water was not a
        constitutional violation.

According to the statutes, a person who desires to
construct and maintain a reservoir shall have the
right to store therein any of the unappropriated
waters of the state not thereafter needed for
immediate use for domestic or irrigating purposes,
to construct and maintain ditches for carrying
such water to and from such reservoirs, and to
condemn lands required for the construction and
maintenance of such reservoirs and ditches in the
manner provided by law   (C.R.S., §37-87-101).  The
owner of the reservoir may discharge waters into a
natural stream (C.R.S.,  537-87-102), but may not
cause abnormally high water levels in the stream;
however, notice must be given to the Division
Engineer of the Irrigation Division of the intent  to
release such water  (C.R.S. §37-87-103).  If
damage occurs from such release or from overflow of
the reservoir, the owner of the reservoir is liable
for the damage caused.

If a dam has a capacity of one thousand acre-feet,
is ten or more feet in vertical height, or has  a
water line surface area of twenty feet, the
specifications for the dam must be approved in
advance by the State Engineer  (C.R.S., §37-87-105).
The expenses incurred by the State Engineer in  this
approval phase are borne by the owners of the
reservoir.  They bear the cost of inspection and
supervision as well  (C.R.S., 537-87-106).  Dams
of ten feet or less shall also be subject to
approval by the State Engineer  (C.R.S., §37-87-117;
also §37-87-122, 1973 for controls on erosion control
dams).  The amount of water that is safe to be
stored in the reservoir shall be determined annually
by the State Engineer (C.R.S., §37-87-108 ), and it is
the duty of the Water Commissioner of the district
to withdraw any excess amount and to see that the
reservoir is not refilled beyond its specified  safe
limits  (C.R.S., 437-87-108).

Ground Water--
Traditionally, ground water has been defined as  that
water which is found under the surface of the earth
and in Colorado is administratively divided into
two categories:  (1) ground water which contributes
little or no flow to surface streams, does not
affect vested surface water rights, and comes under
the jurisdiction of the Colorado Ground Water
Commission and  (2) all other underground water  under
the jurisdiction of the Colorado State Engineer
(Kuiper, 1976).  The former is called "Designated
Ground Water," and the latter is divided into waters
tributary and non-tributary to a stream.

Little legislative or court action is found concern-
ing'ground water in the early history of Colorado
due to the lack of extensive use of ground water
supplies until  recently.  The first legislative
step toward controlling ground water occurred  in
1953, following the Supreme Court's finding in
Safranek v. Limon  (123 Colo. 330, 228 P.2d 975,
1951), that Colorado water law was deficient with
respect to ground waters.  The law authorized
ground water studies, required licensing well
drillers, and filing well  logs, creation of "Critical
Ground Water Districts"  (C.R.S., 1953. Art. 18,
Chapter 147).

The first substantive "ground water law" was passed
in 1957 and was applicable to all subsurface waters
(Law of May 1,  1957, Colorado Session Laws 863).
The four major  provisions of the law were:  (1)  by
July, 1960, all ground water users must file
statements with the State  Engineer, setting forth
such information as the nature, extent, location,
and quantity of their withdrawals and use;  (2)  a
ground water commission was created; (3) the
commission had  the power  to designate "tentatively
critical ground water districts in areas where  the
withdrawal of ground water appears to have
approached, reached, or exceeded the normal rate of
replenishment;" and (4) no new wells could  be
drilled or the  supply from existing wells increased
without first obtaining a  permit from the State
Engineer. This  law sets the basic institutional
framework for ground water allocation and management
in Colorado.  However, due to the particular
limitation for  maintaining an area as "critical"
                                                     123

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under the 1957 Act, it was repealed and reenacted in
1966 (Moses & Varnesh, 1966).

The present statutory status of ground water laws in
Colorado is the result of two major legislative
enactments and subsequent amendments to the basic
acts.  In 1965, the "Ground Water Management Act"
was adopted  (C.R.S. Ann., §§148-18-1 to 38, 1965
Supp., now cited as C.R.S., §§37-90-101 to 141).
It primarily addressed the non-tributary waters.  The
lack of specific legislation or judicial guidance for
tributary waters and the emerging problems in the
Arkansas, South Platte, and Rio Grande Valleys led to
the enactment of the Water Right Determination and
Administration Act of 1969.

These two acts are thus consistent with an early
Colorado decision recognizing two categories of
ground water:  (i) tributary ground water and (2) non-
tributary ground water (Medano Ditch Co. v. Adams, 29
Colo. 317, 68 P.431. 19027;The court held the former
refers to waters that, if left to flow, will become
part of a natural stream, and the latter refers to
waters which will not become part of any natural
stream.

The General Assembly attempted to clarify classifica-
tion and administration of ground water in 1965 with
a legislative declaration of policy:

     It is declared that the traditional policy of the
     state of Colorado requiring the water resources
     of this state be dedicated to beneficial use in
     reasonable amounts through appropriation, is
     affirmed with respect to the designated ground
     waters of this state, as said waters are
     defined in Section 37-90-103(6).  While the
     doctrine of prior appropriation is recognized,
     such doctrine should be modified to permit the
     full economic development of designated ground
     water resources.  Prior appropriations of
     ground water should be protected and reasonable
     ground water pumping levels maintained, but
     not to include the maintenance of historical
     water levels.  All designated waters of this
     state are therefore declared to be subject to
     appropriation in the manner defined in this
     article  (C.R.S. §37-90-102).

The legislature went on to define designated ground
water as:

     .  .  . that around water which in the natural
     course would not be available to and required
     for the fulfillment of decreed surface rights,
     or ground water in areas not adjacent to a
     continuously flowing natural stream wherein
     ground water withdrawals have constituted the
     principal  usage for at least fifteen, years
     preceding the date of the first hearing on the
     proposed designation of the basin, and which in
     both cases is within the geographic boundaries
     of a designated ground water basin  (C.R.S.
     §37-90-103(6)).

The key procedural features of the 1965 Act, which are
designed to enable the state to allocate and manage
the designated ground waters,  are:

     1.  A permit system for acquiring rights to
         withdraw and use designated ground water was
         reinstituted  (C.R.S. §37-90-107).
     2.  The Colorado Ground Water Commission was
         created within the Division of Water
         Resources to designate ground water basins
        and determine the allocation and administra-
        tion of waters within the basins  (C.R.S.
        §37-90-104).
    3.  Authority and jurisdiction over administration
        and distribution of waters and protection of
        vested rights was granted to the State
        Engineer which provided flexibility in this
        office to grant permits for small capacity
        wells and wells in deep aquifers  (C.R.S.
        §§37-90-104 and 137).
    4.  The formation of water management districts
        to continue the administration and management
        of waters within designated ground water
        basins was authorized.

Any person desiring to appropriate ground water for a
beneficial use in a designated ground water basin is
required to make application to the Ground Water
Commission  (C.R.S. §37-90-107).  The applicant is
required to state the designated ground water basin
from which the water is to be appropriated, the
beneficial use to which it will be applied, the
location of the proposed well, the name of the
landowner of whose land the well will be located, the
amount of water to be applied annually, and the
maximum pumping rate of the well; and, if the water
is to be used for irrigation, the name of the
landowner and description of the land must be
submitted.  The Commission then makes a preliminary
evaluation of the application; if conditions are
favorable under existing rules then, within thirty
days, the application shall be published  (C.R.S.
§37-90-107(2)).  If no objections are filed and the
Commission feels that no damage will be caused by the
well and that it will not contribute to unreasonable
waste, it shall direct the State Engineer to issue
a conditional permit  (C.R.S. §37-90-107(3)).

If objections were filed, then a hearing date is set
by the Commission.  The hearing is held in the
designated ground water basin in which the proposed
well will be located.  If the findings of the
Commission are that no unappropriated water exists,
that the well would lead to damage to other wells,
or that excessive waste would occur, then the permit
will be denied  {C.R.S. §37-90-107(4)).  In making
its decision, the Commission is directed to consider
such aspects as (1) the area; (2) geographic condi-
tions; (3) average annual yield and recharge rate;
(4) priority and quantity of existing claims;  (5)
proposed method of use; and (6) any other appropriate
considerations (C.R.S. §37-90-107(5)).

Having received a conditional decree from the State
Engineer, the applicant must proceed with "due
diligence" in the construction of the well and apply
the water to a beneficial use  (C.R.S. §37-90-108(1)).
Once the work has been completed, the applicant then
must submit to the Commission information concerning
the maximum sustained pumping rate of the well in
accordance with the steps outlined in §37-90-108(1)).
of the Colorado Revised Statutes.  If all requirements
of the Commission have been met and the water has
been put to a beneficial use, the Commission will
direct the State Engineer to issue a final permit to
use designated ground water at a given rate  (C.R.S.
§37-90-108(2)).

Concerning the priority date established for wells,
the law states that "priority of claims for the
appropriation of designated ground water shall bef|
determined by the doctrine of prior appropriation"
(C.R.S. §37-90-109(1)). Prior to the enactment of the
above mentioned article, the effective date of the
appropriation was based on the actual removal  of
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 designated ground water and its application to a
beneficial use.  Subsequent to the passage of the
appropriate sections, the effective date of an
appropriation is based on the date of filing an
application with the Commission.

The right to use water under a permit from the Ground
Water Commission is for use only upon the lands
designated in the application.  These water rights
are thus appurtenant to specific lands and cannot be
used to irrigate other lands without first
receiving authorization from the Commission.

 There are two classes of waters which have been
 exempted from control by the Commission.  The first
 is small capacity wells in designated ground water
 basins.  The State Engineer is authorized to
 approve permits on small capacity wells not exceed-
 ing fifty gallons per minute and used for no more
 than three single-family dwellings, but not used to
 irrigate more than one acre of land; not exceeding
 fifty gallons per minute and used for watering
 livestock on range and pasture and wells; not
 exceeding the fifty gallon limit and used in
 commercial business  (C.R.S. §37-90-105(1)).

 If a ground water management district has been formed
 for the basin, it may place restrictions upon the
 issuance of such permits.

 The second class of water that falls within a diffi-
 cult area of jurisdiction is the deep aquifer and
 other non-tributary waters outside designated
 ground water basins.  The law states that, after May
 19, 1965, no new wells outside designated ground water
 basins shall  be constructed nor shall water supplies
 be increased or extended from existing wells outside
 designated basins unless a permit from the State
 Engineer to construct a well  is acquired.  The
 application must specify the particular aquifer from
 which the water is to be diverted, the beneficial
 use to which the water will be applied, the location
 of the proposed well: the name of the owner of the
 land on which the well  will be located, the
 average annual  amount of water to be applied, the
 proposed maximum pumping rate, and, if used for
 irrigation, the name of the owner of the land and
 its description  (C.R.S. §37-90-137(1)).

 Upon receiving an application for a replacement well
 or a new, increased, or additional supply of ground
 water from an area outside the boundaries of a
 designated ground water basin, the State Engineer is
 to make a determination as to whether or not the
 issuance of such a permit will materially injure
 the vested rights of others,  and whether hydrological
 and geological  facts are such that they warrant the
 issuance of a "permit to construct a well"  (C.R.S.
 §37-90-137(2)).  The State Engineer is limited in
 his ability to issue a permit by the requirement
 that the proposed well  must be a distance of more
 than 600 feet from an existing well, unless the "facts
 are such to allow its construction"  (C.R.S.
 §37-90-137(2)).

 A permit to construct a well  expires one year after
 the issuance unless the applicant provides the State
 Engineer with evidence that the water from the well
 has been put to a beneficial  use.   For good cause
 shown, the State Engineer is empowered to extend the
 permit to construct for a period not to exceed one
 additional  year  (C.R.S. ^37-90-137(4) (a)).

 The 1965 Ground water Management Act resolved the
 major issues of water allocation and administration
for non-tributary waters, but the tributary water
problem was still to be faced.  The current law
governing tributary water within the state was
passed in 1969 and is known as the "Water Rights
Determination and Administration Act of 1969."  The
legislative declaration of the Act acknowledges the
interrelationship of ground and surface waters:

     It is the policy of this state to integrate
     the appropriation, use and administration of
     underground water tributary to a stream with the
     use of surface water in such a way as to
     maximize the beneficial use of all the waters
     of this state  (C.R.S. §37-92-102(1)).

Waters of the state are defined as:

     . . .all surface and under ground water in or
     tributary to all natural streams within the
     state of Colorado, except waters referred to
     in Section 37-90-103(b) (which refers to the
     definition of "designated ground water" under
     the 1965 Act)   (C.R.S. §37-92-103(13))-

Underground waters are defined as:

     . . . that water in the unconsolidated alluvial
     aquifer of sand, gravel and other sedimentary
     materials, and all other waters hydraulically
     connected thereto which can influence the rate
     or direction of movement of the water in that
     alluvial aquifer or natural stream.   Such
     'underground water' is considered different from
     'designated ground water' as defined in section
     37-90-103(6)  (C.R.S. §37-92-103(11)).

To carry off this policy, and in full recognition of
the inadequacy of past laws on the subject, the
legislature set out the following principles to be
applied in developing a sound and flexible program
of integrated water use in the state.  They are:

  '  1.  All previously vested rights and uses
         protected by law, including an appropriation
         from a well, shall be protected,
     2.  The present use of wells, either independ-
         ently or in conjunction with surface rights
         shall be given the fullest possible
         recognition.  However, this principle
         will be limited by existing vested rights.
         Each diverter must establish a reasonable
         means of diversion and he cannot command
         the whole flow to take his appropriation.
     3.  Use of a well may be an alternate or
         supplemental source for a surface decree.
     4.  No junior appropriator can be limited unless
         this reduction would result in an increased
         water supply available to the senior
         appropriator  (C.R.S. §37-92-301).

The significance of the 1969 Act, aside from its
setting policy to integrate the surface and ground
waters of the state, is the approaches and
procedures it advocates.  The Act creates a unique
system of water administration in the state with
various power divided between the water courts
established in each of the seven water divisions and
the Office of State Engineer and the division
engineers.  The courts approve applications for
water rights and adjudicate such rights while the
State Engineer and his staff have responsibility for
administration and distribution of the waters of the
state.   Since, under the doctrine of prior appro-
priation, water shortages require shutting off junior
diversions, the ultimate effect upon most well users
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 is  restricted  pumping.  However, the law provides the
 opportunity for water  users to develop an "augmen-
 tation  plan" to prevent strict regulation under
 priorities  (C.R.S.  §37-92-307).  Other important
 features of the law  provide for obtaining an alter-
 nate point of  diversion   (C.R.S. s37-92-301(a) and
 (d)), adjudicating wells   (C.R.S. §37-92-601 ), and
 exempting certain wells from adjudication require-
 ments (C.R.S.  137-92-602).

 Regarding exempt wells, the 1969 Act is not
 applicable to  wells  in designated ground'waterbasins,
 wells not exceeding  fifteen gallons per minute of
 production and used  for ordinary household and
 farm purposes, and irrigation of not over one acre
 of  home gardens and  lawns., or used for drinking and
 sanitary facilities  in individual commercial
 businesses; wells to be used exclusively for fire-
 fighting purposes if capped, locked, and available
 for use only in fighting  fires; and wells not
 exceeding fifty gallons per minute which are in
 production as  of the effective date of this
 section as amended,  and were and are used for
 ordinary household purposes for not more than three
 single-family  dwellings,  fire protection, the
 watering of poultry, domestic animals, and livestock
 on farms and ranches, and the irrigation of not over
 one acre of gardens  and lawns (C.R.S. §37-62-602(1)
 (a to e)).

 Prescriptive Water Rights--
 In addition to acquiring  water rights under court and
 administrative methods set out by statute, water
 rights  can be  acquired by prescription.  There must
 be an open, notorious, adverse use of the water
 throughout the statutory  period, under a claim of
 right in order to obtain  a prescriptive title.  No
 adverse use occurs when the supply of water is
 sufficient for all.  An adverse user must use the
 water in such a manner so as to notify the owner that
 his water is being adversely used, and the owner
 must acquiesce, making no claim to the water  (Clark
 v. Ashley. 34 Colo.  285,  82 P.588, 1905).  In
 Loinas v. Webster {109 Colo. 107, 122 P.2d 248. 1942),
 the court held that  as between an original  appro-
 priator and owner, an adjoining land owner cannot
 acquire a prescriptive right to waste or seepage
 water.

 Preferences—
 With the water laws of most every western state ,
 there are provisions which set up a preference
 between types of water users.   Distinct from the
 priority between water users,  which is ranking date
 of all  users based upon date of application or
 other criteria, the preference designation serves
 the purpose of (1) a basis for granting a water
 right between two or more competing applicants for
 different uses and (2) during  times of ?carcity, the
 preferred user can condemn a non-preferred user's
 right to water, upon payment of just compensation.
The preference is not self-executing, but must be
 exercised by condemnation action  (Town of Sterling
v. Pawnee Ditch Ext.  Co.. 42 Colo.  421, 94 P.  339,
 1908T

The Colorado Constitution states that under the
 preference system:

     Priority of appropriation  shall  give the better
     right as between those using the water for the
     same purpose; but when the waters of any natural
     stream are not sufficient  for the service of
     all those desiring the use of the same, those
     using the water for domestic purposes  shall
     have 'the  preference over those claiming for
     any other purpose, and those using the water
     for agricultural purposes shall have preference
     over those using the same for manufacturing
     purposes   (Article XVI, Section 6).

 In the case of Montrose Canal Company v. Loutsenhizer
 Ditch the courts stated that:

     The (domestic) use protected by the constitution
     is such as the riparian has at common law to
     take water for himself, his family or his
     stock, and the like.  And if the term 'domestic
     use' is to be given a different or greater
     meaning than this, then as between such enlarged
     use and those having prior rights for agricul-
     tural and manufacturing purposes, it is subject
     to that other constitutional provision
     requiring just compensation to those whose
     rights are affected thereby  (23 Colo. 233.
     48 P.532, 1896).

 3.2.3  Adjudicating Hater Rights

 Colorado's constitution declares that the right to
 divert and put  unappropriated water to a beneficial
 use shall never be denied  (Colo. Const, art. XVI,
 sec. 6).  Thus,  the method of appropriation
 historically has  been to take unappropriated water
 and apply it to  a beneficial use  (Board of County
 Commissioners  v.  Rocky Mountain Water Co.. loc. cit.).

 An appropriator  is required to have a reasonable
 means of diversion and an appropriator cannot
 command the whole flow of a stream just to aid his
 taking a fraction of the whole flow to which he is
 entitled  (Colorado Springs v. Bender, 148, Colo.
 458, 366 P.2d  552. 1961  ).  In Fort Lyon Canal Co .
 v. Chew. (33 Colo. 392, 81  P.37, 1905), the court
 held that an appropriative right could not be
 enlarged or extended beyond an amount beneficially
 needed and used  for the original undertaking for
which the priority was awarded.   Thus a priority
will be enforced against junior appropriators only
 to the extent  of that water which has been histori-
 cally needed and used by the senior appropriator
 (Enlarged Southside Irr. Ditch Co. v. John's Flood
Ditch Co.. 116 Colo.  580 183 P.2d 552. 1947).

3.2.4  Conditions of Use

 Beneficial Use—
Colorado law defines beneficial  use as "the use of
that amount of water that is reasonable and appro-
priate under reasonably efficient practices to
accomplish without waste the purpose for which
appropriation  is lawfully made and without limiting
the generality of the foregoing  includes the
impoundment of water for recreational  purpose,
including fishery or wildlife"  (C.R.S.§37-92-103 ).
Beneficial  use is the basis, the measure,  and the
limit of the right to use water   (Denver v.  Sheriff.
105 Colo.  193, 96 P.2d 836,  1939), and priority in
time confers a prior right  (Colo. Const.  Art.  XVI,
Sec.  6.).  Uses recognized as beneficial  are domestic,
agricultural,  industrial, municipal  and recreational.
 (Ibid.)  Denver v. Sheriff (Supra.)  held that an
appropriator cannot divert more  water than he
reasonably needs for his intended beneficial  use.
The amount depends upon  the  nature,  place  and time
of use and varying duties of water can be  established
dependent upon circumstances of  each case   (Farmers
Highline Canal  and Res.  Co.  v. Golden, loc.  cit.) .
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Tlius, the concept of beneficial use prescribes the
types of uses and the basis for determining or
measuring the water right.  An appropriative right
cannot be enlarged or extended beyong the amount
beneficially needed and used for the original
undertaking for which the priority was awarded
(Fort Lyon Canal Co. v. Chew. 33 Colo. 392, 81 P.37
1905).

In order to have a valid appropriation the water
must be applied to a beneficial use  (Combs v.
Agricultural Ditch Co.. 17 Colo. 146, 28 P.966, 1892).
In City and County of Denver v. Brown  (56 Colo. 216,
138 P.44, 1914), the court held that an appropriator
is not entitled to have water turned out to him
unless it can be beneficially used.  The measure of
an appropriation depends upon the amount diverted
and the amount which is applied to a beneficial use
(Woods v. Sargent, 43 Colo. 268, 95 P.932, 1908).

Waste—
Waste of water can be considered the opposite of
using the water beneficially.  Waste water can be
defined as that water which is not needed by the
claimant thereto; water which after it has served
the purpose of the lawful claimant, has been permit-
ted to run to waste or to escape, and water which
from unavoidable causes escapes from the ditches,
canals, or other works of the lawful claimant.
(89 A.L.R. 200).

Waste water is not considered to be waste water until
it has escaped and reached the lands of others
(Burkart v. Merberg. 37 Colo. 187, 86 P.98, 1906).
Whether we limit the definition of use by applying
the term beneficial, reasonable, or economical, the
affect is to limit the waste of water.

In Tongue Creek Orchard Co. v. Town of Orchard City
(loc. cit.), the court stated that it is an appro-
priatort duty to prevent waste so that others who are
entitled to the water may receive the benefits of
that water.  An irrigator has no right as against a
junior appropriator to waste water (Enlarged
Southside Irrigation Ditch Co. v. John's Flood Ditch
Co., Supra.) and the junior consequently has a right
to prevent waste of water by a senior and to have the
continuation of stream conditions as they existed at
the time of his appropriation  (Farmers tiighline
Canal & Reservoir Co. v. City of Golden. 129 Colo.
575, 272 P.2d 629, 1954).

In Durkee Ditch Co. v. Means  (63 Colo. 6, 164 P.503,
19177, the court stated that seepage, waste, and
return waters were to be considered as part of the
stream from tne moment the waters were released by
the user and the waters must be permitted to return
to the stream for the benefit of other appropriators.
Colorado Revised Statutes, section 37-84-107
provides that an owner of an irrigation ditch must
keep such ditch in good repair to prevent the
wasting of water.  An appropriator cannot allow a
quantity of water to flow through his ditch which is
in excess of his needs  (C.R.S. §37-84-108).  Section
37-84-101 commands that the owners of any irrigation
ditch maintain the embankments and to construct a
tail ditch to permit return waters to return to the
stream with as little waste as possible.  However,
there is no obligation upon an owner to continue
to maintain conditions so as to supply waste water to
appropriators  (Fair Play Hydraulic Mine Co. v.
Western. 29 Colo. 125, 67 P.160, 1901).
Colorado has also adopted a law which limits excess
agricultural water uses.  This provision states
that :

     During the summer season it shall not be lawful
     for any person to run through his irrigating
     ditch any greater quantity of water than is
     absolutely necessary for irrigating his land,
     and for domestic and stock purposes, it
     being the intent and meaning of this section
     to prevent the wasting and useless discharge
     and running away of water  (C.R.S. §37-84-08).

Maximum Utilization v. Vested Water Rights--
A well known doctrine was given judicial recognition
and standing in Fellhouer v. People (167 Colo. 320,
447 P.2d 986, 1968).  This doctrine is the concept
of maximum utilization of the state's waters which
the court holds is implicit in the Colorado
Constitution along with the doctrine of vested
rights.  The court goes on to say that "as
administration of water approaches its second
century the curtain is opening upon the new drama
of 'maximum utilization' and how constitutionally
that doctrine can be integrated into the law of
'vested rights.1  We have known for a long time
that the doctrine was lurking in the background as
a result of the accepted, though oft violated
principle that the right to water does not give the
right to waste it "  (Ibid.).  And a few years later
in Kuiper v. Hell Owners Conservation Association
(176 Colo. 119, 490 P.2d 268, 1971), the Colorado
Supreme Court went on to say that "In Fellhauer,
we attempted to sound the note of a new era in the
utilization and optimal use of water."  Noting
the  slight indication of reluctance to change in
use practices by the plaintiff and trial court, they
continued, "there must be change, and courts,
legislators, the State Engineer and users must
recognize it.  We recognize that future research and
testing may prove erroneous some of the things we
found were predominantly shown in the record.  By
th'e same token, further research and testing will
not only result in correction of past mistakes,
but also will lead us closer to the goal of minimal
waste of water" (ibid.).

3.2.5  Manner in Which Rights May be Adversely
       Affected

Abandonment--
Colorado has no forfeiture statute, but a water right
can be lost by abandonment, adverse possession, and
condemnation.  Abandonment procedures are instituted
by either (a) civil  suit, or (b) through administra-
tive initiative by the State Engineer.  Under the
latter, when an appropriator has failed for a period
of ten years to apply his water to a beneficial use ,
a rebuttable presumption of abandonment arises
(C.R.S. §537-92-402, 37-92-103).  Detailed
administrative procedures for the operation of
administrative abandonment are set forth in C.R.S.
section 37-92-402.

Abandonment in a civil suit results from a claim to
water by a user based upon the  nonuse of a water
right holder.  Abandonment of a water right is
defined in the statutes as the termination of a
water right in whole or in part as a result of the
intent of the owner to discontinue the use
permanently  (C.R.S. §37-92-103).  To abandon means
"to forsake; give up wholly; quit; to discontinue,
desert, relinquish,  surrender, vacate, or give up"
(Putnam v. Curtis. 7 Colo. ArP- 437, 431 P.1056,
1R94).The mere nonuse  of a water right does not
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work as abandonment  {Fruit Growers Ditch Reservoir
Co. v. Donald. 97 Colo. 264, 41 P.2d 516, 1935), but
in the New Mercer Ditch Co. v.  Armstrong Water
Commission (21 Colo. 357. 40 P.989. 1895), the court
held that an appropriator cannot for an unreasonable
time hold water for speculative purposes and make no
beneficial use of it or divert more than he needs
for the purpose for which the diversion was made.

The party who seeks to prove the abandonment has the
burden of proof  (Unite v. Nuskolls, 49 Colo. 170,
1910).  When a priority has been abandoned other
users on the stream can appropriate such waters in
the order of their priorities  (North Boulder
Farmers Ditch Co. v. Legett Ditch Reservoir Co..
63 Colo. 522, 168 P.742, 1917).  If a water right
has been obtained by deed, then abandonment cannot
take place until sufficient time has passed to
create a prescriptive right in another user, which
is 20 years  (Fruit Growers Ditch and Reservoir Co.
v. Donald, loc. cit.).  A period of 40 years of non-
use has been held to be prima facie evidence of an
intent to abandon (Ibid.).

Justification for  nonuse may exist if economic,
legal or financial problems or natural disaster
prevents the use of decreed waters  (Colorado River
Water Conservation District v.  Twin Lakes Reservoir
Canal Co.. 506 P.2d 1226. Colo."19737.

Adverse Possession—
To obtain a right to water through adverse possession
the use must be open, notorious and adverse; under a
claim of right.  Thus, an adverse user must use the
water in such a way so as to notify the owner that
his water is being adversely used and the owner
must acquiesce, making no claim to the water (109
Colo. 107, 122 P.2d 248, 1942).  Therefore.no adverse
user must use the water in such a way so as to
notify the owner that his water is being adversely
used and the owner must acquiesce, making no claim
to the water  (109 Colo. 107,  122 P.2d 248, 1942).
Therefore, no adverse use can occur when the supply
of water is sufficient for all users exercising
their water rights.

In the case of Dzuris v. Hucharih  (164 Colo. 278,
434, P.2d 414, 1967), the court stated that:

     For adverse possession to be effective as a
     means of acquiring title, the possession of the
     adverse claimant must be such that the true
     owner is wholly excluded  therefrom.  Any sort
     of joint or common possession by the adverse
     claimant and the record owner prevents the
     possession of the one claiming adversely from
     requisite quality of exclusiveness.

Colorado has two statutes that relate to the period
of time under which adverse possession is governed.
Under the first, eighteen years is the time period
required to establish evidence of absolute owner-
ship   (C.R.S. Ann.  §118-7-1; also Winter v. Tarabino,
173 Colo. 30, 1970).  However, if the person
claiming adverse possession has paid all of the
taxes legally assessed, then the period required is
only seven years   (C.R.S. Ann. §118-7-8).

Eminent Domain and Condemnation—
Eminent domain has been defined as "the  right to
take private  property  for public use"   (Robert E.
Clark, ed. Water and Water Rights. Vol. 4,  Indiana-
polis:  The Allen Smith Co., 1970, p. 3, Footnote  1).
With respect  to eminent domain, two aspects are
generally considered.  First,  public use is a
requirement and, secondly,  there must be a  necessity
or an adequate reason for taking.  The term
"necessity" is usually implied  to mean a reasonable
necessity.  Specifically:

     It does not mean absolute  or indispensible  or
     immediate need ...  It extends also  to  the
     taking of property which is reasonably
     necessary, and for which a need will probably
     exist within a reasonable  time  (Ibid., p.  11).

Before private property can be  taken for public  use
in any state, it must be authorized by the  respective
state legislature.  When eminent domain is  exercised,
compensation must be made for the property  taken or
destroyed.  Article II, §15 of  the Colorado
Constitution states, in part, that:

     Private property shall not be taken or damaged,
     for public or private use, without just compen-
     sation.  Such compensation shall be ascertained
     by a Board of Commissioners, of not less  than
     three freeholders, or by a jury, when  required
     by the owner of the property, in such  manner as
     may be prescribed by law,  . . .

Article XVI, s7, of the Constitution prescribes  the
rights-of-way allowed for conveying water and
requires that just compensation be paid.  It states:

     All persons and corporations shall have the
     right-of-way across public, private, and
     corporate lands for the construction of ditches,
     canals, and flumes for the purpose of  conveying
     water for domestic purposes, for the irrigation
     of agricultural lands, and for mining  and
     manufacturing purposes, and for drainage, upon
     payment of just compensation.

Article II, §25, the due process clause of  the
Colorado Constitution, states that "no person  shall
be deprived of life, liberty, or property,  without
due process of law."

Under certain circumstances, private condemnations
are allowed as long as they can be proven essential
to the public interest.  "The controlling factors
are local needs and conditions, and state legisla-
ture and judicial appraisals of these factors  are
given greatest deference by federal courts"
(Clark, Waters and Water Rights, op. cit.,  p.  73).
Clark points out that "whether condemnation of water,
or condemnation to facilitate the use of water,  will
be allowed in a specific case depends upon  the
application of the public use decisions to  the
specific use in controversy, plus (1) constitutional
provisions; (2) water preference policies; (3) iden-
tity of the condemnor; and  (4)  necessity under local
conditions"  (Ibid, p. 74).

In 1975,the Colorado Legislature was called upon to
deal with the procedure  for condemnation of water
rights by municipalities and counties.  The problems
arose because of  increasing demands for water by the
cities and towns  in Colorado which conflicted with
established, privately-owned water rights.

The procedure outlined by the legislature provides
that a commission of three members  is to be estab-
lished in each case to determine the necessity of
the proposed condemnation.  This commission is to
consist of one member of the area to be  affected by
the loss  of the water, one member representing the
community seeking the condemnation, and  one member
                                                      128

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with no interest in the controversy. 7

Before the hearing on the proposed condemnation may
be held, it is the duty of the municipality to
provide a community growth development plan outlining
the present population and projected population
growth and the resource requirements  (C.R.S. §38-6-
203, 1975).  No condemnation is permitted to satisfy
projected needs in excess of fifteen years in the
future  (C.R.S. §38-6-202(2), 1975).  The plan to be
submitted by the municipality is to set forth the
effects of the proposed condemnation including the
unavoidable adverse effects of such an action
(C.R.S. S38-6-203(b) (III), 1975). along with
alternative sources that may be acquired and the
costs of acquiring these alternate sources  (C.R.S.
§38-6-203(b) (IV), 1975).

The commission has the option of finding whether the
proposed condemnation is necessary, unnecessary, or
premature  (C.R.S. §38-6-207 (I through III), 1975).
Anyone who wants to object to these findings may do
so by filing a written objection before the time of
trial set in district court in the area affected
(C.R.S. §38-6-210, 1975).  Failure to so object
within the prescribed time results in a default
(Ibid.).  The burden of proof to change a finding,
award, or assessment made by the commission is on
the person objecting thereto.  The district court,
for good cause shown, may modify or annul the report
of the conmission or may order a new appraisement
or assessment as to the value of the property being
condemned (Ibid.).  One may demand a jury trial on
the issue of appraisement or assessment  (Ibid.).

In cases involving subdivisions, the State Engineer's
duties include submitting to the County Commissioner
a statement regarding material injury likely to occur
to decreed water rights by virtue of the proposed
diversion and use by the subdivision.  In the event
the subdivision is approved in spite of an opinion of
a water shortage, all potential purchasers shall be
furnished a copy of the opinion, unless, in the
opinion of the County Commissioners, the subdivider
has corrected the injury or inadequacy found in the
State Engineer's report  (Ibid.).

3.2.6  Legal Incentives and Disincentives for More
       Efficient Water Use Practices

Water Use Efficiency and Irrigation Return Flow—
Early in Colorado's water law history, the courts
ruled that "the  rights of a prior appropriator
from a (rain) stream cannot be impaired by subsequent
appropriations of water from its tributaries"
(Strickler v. City of Colorado Springs, 16 Colo. 61,
26 P.313, 1891).  This requirement applies also to
cases where the tributary enters the main stream
below the senior appropriator's point of diversion.

The courts have used the term "tributary to natural
stream" in a broad sense  (In re German Ditch and
Reservoir Co., 56 Colo. 252, 139 P.2, 19H).  The
courts have been of the opinion that if water
reached a stream by natural methods "and is
appropriated in accordance with the law, the
7See G.E. Radosevich and M. Sabey, "Stability of
Agricultural Water Rights," Proceedings of the 1975
Western Agricultural Economics Association Meetings,
Reno, Nevada, 1975.
appropriator has a property in it which cannot  be
divested by the wrongful  diversion by another,  nor
can there be any substantial  diminution  (McClellan
v. Hurdle. 3 Colo. App. 430,  33 P.280, 1893).   As
noted earlier in Chapter 3, the Colorado
Constitution established certain preferred uses;
however, this does not mean that there can be a
taking without just compensation  (Sterling v.
Pawnee Ditch Extension Co.. 42 Colo.  421,  94 P.  339,
1908).

Regarding water quality,  the  courts have held prior
appropriators have a right "to have the natural
waters and all accretions come down the natural
channel undiminished in quality as well as
quantity"  (Humphreys Tunnel  and Mining Co. v.  Frank,
46 Colo. 524, 105 P. 1093, 1909).  Water quality
is not an explicit element of a water right, rather
it is a right of property under common law which
the owner can enforce by action of nuisance,
trespass, or negligence.

It has been stated that "in diverting, conveying,
distributing, and using water the appropriator  is
held to reasonable efficiency—not absolute
efficiency" (City of Combs v. Agricultural Ditch Co.,
17 Colo. 146, 28 P.966, 1892).  The Colorado courts
have permitted construction of channels to divert
water and:

     . . . the right to make  and change the necessary
     dams, channels or other  diversion works within
     the stream bed which might be necessary to
     enable them to continue  the diversion of water
     at their headgate, provided no additional
     burdens were made upon defendants' lands thereby
     (Downing v. Cope!and, 126 Colo.  373,  24 P.2d
     539, 1952).

This decision is best viewed  as being limited to the
specific facts in this case;  for it is clear that a
right-of-way—but only one ditch per tract of land--
may be claimed by one seeking to transport water
(C.R.S. §37-86-113).  The policy of Colorado law
is to promote efficient use of water so it is
difficult to see why improvements should not be
allowed.  Moreover, the proscription against
burdening land extends to a diminution of water to a
tract as a result of change in diversion,  method, or
location  (Atencio v. Richfield Canal Co.. 402  P.2d
620, 1972).

The courts have held that an  appropriator has the
right to repair and/or improve the physical works
necessary to convey the water.  Thus, the courts
said that:

     The rule of law that gives junior appropriators
     a vested right to a continuance of conditions
     on the stream does not include the right to a
     continuance of the senior appropriators'
     misfortunes with their ditch  (Flasche v.
     Westcolo Co., 112 Colo.  387, 149 P.2d 817.
     1944).

The Colorado statutes also specify that a ditch
company must "keep their ditch in good condition
so that the water shall not be allowed to escape "
(C.R.S. §7-42-108).  In trying to sustain this  goal
of efficiency in water use, the courts have been
inclined to view waste of water which will be
judicially prohibited as that of "unnecessary
waste"  (Comstock v. Larimer  and Weld Reservoir Co.,
58 Colo. 186, 145 P. 700, 1914).
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 In trying to specify efficiency, the courts have
 examined what a reasonably adequate means of diver-
 sion would be. They concluded in one case that:

      .  . . the court must determine what, if
      anything, the plaintiffs would be required  to
      do to make more efficient the facilities at
      their point of diversion, due regard being
      given to the purposes for which the appro-
      priation had been made, and the 'economic
      reach1 of plaintiffs.  The plaintiffs cannot
      reasonably command the whole 'source of supply'
      merely to facilitate the taking by them of  the
      fraction of the entire flow to which their
      senior appropriation entitles them.  On the
      other hand, plaintiffs cannot be required to
      improve their extraction facilities beyond
      their economic reach, upon a consideration  of
      all the factors involved  (Colorado Springs
      v. Bender. 148 Colo. 458, 366 P.2d 55?, 1961).

This requirement was enacted into law in 1969 with
a legislative declaration that the determination  of
water rights, uses and administration of water will
follow a number of principles, one of which is:
". • • at his own point of diversion on a natural
water course, each diverter must establish some
reasonable means of effectuating his diversion.  He
is not entitled to command the whole flow of the
stream merely to facilitate his taking the
fraction of the whole flow to which he is entitled"
(C.R.S.  §37-92-102(2) (b)).

Rotation in the use of water avoids the loss and
inefficiency that can result from "the continuous
delivery to farms of a multiplicity of small 'heads'
or 'streams,1 as they are variously called"
(Hutchins, Water Rights Laws in the Nineteen
Western States, op cit.. p. 616).The purpose of
the rotation is "to enable irrigators to exercise
their water rights more efficiently and, thus, to
bring about more economical use of available water
supplies"   (Ibid., p. 617).  The Colorado courts  have
held that "there is no vested right by one ditch
co-tenant to rotation in use of water with another,
in the absence of contract therefor. . . "
(Brighton Co. v. Englewood. 124 Colo. 336, 237 P.2d
116, 1951).

Irrigation  return flows occur from deep percolation,
resulting from the over-application of water to the
land, seepage from conveyance systems and tail water
runoff.  A  downstream senior appropriator is
entitled to have the stream flow in a sufficient
quantity to satisfy his appropriation.  Thus, an
upstream junior appropriator cannot use water if
that use would deprive the downstream senior of
his appropriated quantity. C.R.S.  §37-82-105 provides
that if any person unlawfully causes any'diminution
of or obstructs or interferes with the flow of
waters  from any natural spring to  the injury of any
appropriator then that person is liable to the
injured party for the amount of the injury.

The person  upon whose land seepage waters arise
has a prior right to such waters if such waters are
capable of  being used upon his land   (C.R.S.
§37-82-102).  C.R.S. §37-82-102 allows a  landowner
a prior right  to seepage waters which arise upon
his lands.  During the summer season  it  is unlawful
to allow a  greater quantity of water  to  run
through an  irrigation of one's lands   (C.R.S.
§37-84-108).  The declared intent  of  such  legisla-
tion  is to  prevent waste,  prevent  useless discharge
and prohibit the running away of water  (The Tongue
Creek Orchard Co. v. Town of Orchard City,  loc.  cit.).

Salvaged Waters—
The courts have been generally cognizant of the  fact
that water may be lost by numerous natural  means,
such as evaporation and consumption by vegetation,
and, conversely, may be salvaged by engineering
improvements.  In this regard, Hutchins has noted
that:

     Artificial work on the channel may reduce
     natural losses materially and thus make more
     water available for use than existed under
     natural conditions.  These increases in
     stream flow, resulting from artificial
     improvements, are properly termed 'salvaged
     waters'  {Hutchins, 1942, p. 361)-

This concept is affirmed in the case of Pike's Peak
Golf Club. Inc. v. Kuiper   (455 P.2d 882,  1969).

The right to the use of salvaged water was recogni-
zed in a 1932 Colorado case (Leadville Mine
Development Company v. Anderson, 91 Colo. 536, 17
P.2d 303, 1932), in which the court held that, when
a person through his own efforts increases the
flow of water in a natural stream, he is entitled
to the use of that water to the extent of the
increase.  But, to be entitled to such use, free
from the call of others, it is not enough for him
to show that the flow of water was hastened (flowed
more freely); he must also show that the flow of
the river was augmented.  If all that is done is
to stop the wastage of the water, it is then
salvaged water and can be claimed but is subject to
the call of the other users on the stream.

In the more recent decision of C.F. & I. Steel
Corporation v. Rooks  (495 P. 1134, Colo. 1972),
this position was reaffirmed.  In this case the
steel company showed that, even though water was
taken from the stream by a new diversion, the end
result would be an  increased return flow to the
Arkansas River.   In the absence of any contrary
evidence from the plaintiff, the court held that
the steel company had carried its burden of
persuasion that  it  had actually added to the flow
of the stream.

The distinction  between salvaged and developed
waters was proclaimed by the court  in 1975 with the
potential effect  of hampering more  efficient water
use.   In the Shelton  Farms case  (Southeastern
Colorado Water Conservancy District v. She!ton
Farms.  Inc.. 529 P.2d 1321.  1975). the court stated
that salvaged water is water  in  the river  or its
tributaries, including  the acquifer, which would
normally go  to waste, but  is  somehow made
available for  beneficial use  but  is subject to
call by prior  appropriators, whereas developed
water  is new water  not  previously  a part of the
river  system and not  junior  to existing decrees
and  thus free  from  call  by prior appropriators.
Articulating the issue  of  the case as:"May one
who  cuts down  water-consuming vegetation obtain a
decree for  an  equivalent amount  of water for  his
own  beneficial  use  free from the call  of the  river?"
 (Ibid.  p.  1323)-

The  case  concerns two parties,  one cut  down
phreatophytes  along a river,  the other cut down
phreatophytes  on his  land.   The  court  concerned
 itself with the possible adverse environmental
 effects of  granting a water right for  such action
 that would  encourage denuding river banks  of  trees
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and shrubs.
Colorado Water Act states this rule:
In deciding the issue, existing case law was
recognized which would deny a water right to one
who "merely clears out a channel, lines it with
concrete or otherwise hastens the flow of water
without adding to existing water" (Ibid., p. 1324,
citing 10 cases from 1903 to 1968), but which would
grant a decree to one who adds to an existing water
supply by importation and capturing flood waters or
waters which would never have normally reached the
river such as trapped mine waters.  The court then
went on to say:

     The roots of phreatophytes are like a pump.
     The trees, which did not have to go to court
     or seek any right, merely "sucked up" the water
     from prior appropriators.  Appellees now take
     the water from the trees.  Therefore, appellees
     also are continuing to take from the appropria-
     tors, but seek a court decree to approve it.
     They added nothing new; what was there was
     merely released and put to a different use.
     To grant appellees an unconditional water right
     therefor would be a windfall which cannot be
     allowed, for thirsty men cannot step into the
     shoes of a "water thief" (the phreatophytes).
     Senior appropriators were powerless to move on
     the land of others and destroy the "thief" - -
     the trees and phreatophytes - - before they
     took firm root.  They are helpless now to move
     in and destroy them to fulfill their own
     decrees.  The property (the water) must return
     from whence it comes - the river - and
     thereon down the line to those the river feeds
     in turn  (Ibid. p.  1325).

The real concern of the court was that decrees
granted for water saved from phreatophyte removal
would be senior to all existing water rights, and
thus encourage the wholesale planting and harvesting
of such plants to create senior water rights.  It
was also noted that this plant life has a beneficial
attribute in preventing soil erosion.

It is not clear from the decision how the court
would hold if the water consuming plants were wholly
within an irrigation district and along canals, but
since the water is measured at the point of diversion
from the natural water course, it can be argued any
water saved goes to the owner of the rights.  The
only difference between Shelton Farms, Inc. and this
position is that water saved under the latter is
distributed in priority according to the decree
giving the right to divert in the first place.

Enforcement of Beneficial Use on Haste Concept--
The Water Right Determination and Administration Act
of 1969 states that it is the policy of the state of
Colorado to integrate the appropriation, use and
administration  of underground water, tributary to
a  stream with the use of surface water in such as way
as  to maximize the beneficial use of all of the
waters of this state  (C.R.S.  §37-52-102).   Further,
an appropriator is limited to a quantity of water
which he'has used for a beneficial purpose and an
appropriative right cannot be enlarged beyond that
needed and used for the original undertaking from
which the priority was awarded  (Ft.  Lyons Canal Co.
v. Chew. 33 Colo. 392, 81 P.37. 1905~).

But in exercising his water right, a senior
appropriator is not unconditionally entitled to
command the river flow to receive his allocation if
his call on the river would be "futile."  The 1969
     No reduction of any lawful  diversion because
     of the operation of the priority system shall
     be permitted unless such reduction would
     increase the amount of water available to and
     required by water rights having senior
     priorities (C.R.S. §37-92-102).

The statutes go on to provide authority, direction
and criteria for curtailment of diversions by the
division engineers and their staff.

     Each division engineer shall order the total
     or partial discontinuance of any diversion in
     his division to the extent the  water being
     diverted is not necessary for application to
     a beneficial use; and he shall  also order the
     total or partial discontinuance of any
     diversion in his division to the extent the
     water being diverted is required by persons
     entitled to use water under water rights
     having senior priorities, but no such
     discontinuance shall be ordered unless the
     diversion is causing or will cause material
     injury to such water rights having senior
     priorities.  In making his decision as to the
     discontinuance of a diversion to satisfy
     senior priorities,the division  engineer
     shall be governed by the following:  The
     materiality of the injury depends on all factors
     which will determine in each case the amount of
     water such discontinuance will  make available  to
     such senior priorities at the time and place of
     their need.  Such factors include the current
     and prospective volumes of water in and
     tributary to the stream from which the
     diversion is being made; distance and type of
     stream bed between the diversion points; the
     various velocities of this water, both surface
  '  and underground; the probable duration of the
     available flow; and the predictable return
     flow to the affected stream.  Each diversion
     shall be evaluated and administered on the
     basis of the circumstances relating to it and
     in accordance with provisions of this article
     and the court decrees adjudicating and
     confirming water rights.  In the event a
     discontinuance has been ordered pursuant to
     the foregoing, and nevertheless such does
     not cause water to become available to such
     senior priorities at the time and place of
     their need, then such discontinuance order
     shall be rescinded.  If a well  has been
     approved as an alternate means  of diversion for
     a water right for which a surface means of
     diversion is decreed, such well and such
     surface means must be utilized  to the extent
     feasible and permissible under  this article to
     satisfy said water right before diversions
     under junior water rights are ordered
     discontinued.

     The state engineer and the division engineers
     have authority to order any owner or user of a
     water right to install and maintain at such
     owner's or user's expense necessary meters,
     gauges, or other measuring devices and to
     report at reasonable times to the appropriate
     division engineer the readings  of such meters,
     gauges, or other measuring devices  (C.R.S.
     §37-92-502(2) and (5) )-

Improved irrigation practices could  result in
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decreased return  flows to a downstream user.  An
upstream user  could  apply his entire appropriation
to  his land which could eliminate any flows which
had been returned directly to the stream.  The use
of  salvaged waters or the re-use of waters could
have an adverse effect not only upon downstream
users but upon the very quality of the water.

Provisions for Transfer pf__Water Rights and
Diversions--
In  Brighton Ditch Co. v. City of Englewood (124
Colo. 366, 237 P.2d  116, 1951), the court held that
the right to change  a point of diversion is an
incident of ownership and is always enforceable so
long as the vested rights are not injuriously
affected.  Thus,  if  the change will not result in
an  injury to junior  appropriators then the change
will be approved.  But if the changes would result
in  stream depletion  and injure junior appropriators,
the decree authorizing the change should contain
conditions to  counteract the loss.  Transfers
should not be  denied except where it is impossible
to  impose reasonable conditions  (Fanners Highline
Canal and Reservoir  Co. v. City of Golden, 129 Colo.
575, 272 P.2d 629,
say:
1954).  The-court went  on  to
     . . . What conditions and limitations should be
     imposed depends upon the facts and surrounding
     circumstances in each particular instance. . .
     It is the purpose of the law, both statutory
     and by decision, to protect all appropriations
     and holders of water rights; to this end all
     elements of loss to the stream by virtue of
     the proposed change should be considered and
     accounted for; and thereupon such appropriate
     provisions of limitation inserted in the decree
     as the facts would seem to warrant. . .
     (Ibid. 129 Colo. 575 at 586).

Water rights may.be sold, or transferred freely
and a change in ownership by the sale of a water
right is subject to the sale laws as sales,
conveyancing and recording.  Change of water right
means:

     A change in the type, place, or time of use,
     a change in the point of diversion, a change
     from a fixed point of diversion to alternate
     or supplemental points of diversion to a
     fixed point of diversion, a change in the
     means of 4iversion, a change in the place of
     storage, a change from direct application to
     storage and subsequent application, a
     change from storage and subsequent application
     to direct application, a change from a fixed
     place of storage to alternate places of
     storage, a change from alternate places  of
     storage to a fixed place of storage, or any
     combination of such changes  (C.R.S. §37-92-103
     (5)).

In the conveyance of water rights, the same formali-
ties shall be observed and complied with as in the
conveyance of real  estate  (C.R.S. §38-30-102).
Whether a deed to land conveys the water rights
depends upon the intent of the grantor  (Klnoshita
v. North Denver Bank. 501 P.2d 1337, Colo. 1972).
This is distinct from the sale of water itself.
Under case law an appropriator can not lend,  rent
or sell excess water to others  (Enlarged Southside
Irrigation Ditch Co. v. John's Flood Ditch Co., 116
Colo. 580, 183 P.2d 552, 1947, reaffirmed in
Fanners Highline Canal  & Reservoir Co.  v. City of
 Golden,  129  Colo.  575, 272, P.2d 629, 1954).

 In Colorado, a  person or company has the right to
 "divert  water from one public stream and turn it
 into another public stream," and may take out the
 same amount Of  water, given the allowance for loss
 (C.R.S.  §37-83-101).  Any person or company
 transferring water is required to construct and
 maintain measuring flumes or weirs at the point
 where the water is finally diverted for use from
 the public stream  (C.R.S. §37-83-102).

 The statutes go on to state that:

     When the rights of others are not injured
     thereby, it shall be lawful for the owner of
     a reservoir to deliver stored water into a
     ditch entitled to water or into the public
     stream to  supply appropriations from said
     stream, and take in exchange therefor from
     the public  stream higher up an equal amount of
     water, less a reasonable deduction for loss
     . . . (C.R.S. §37-83-104).

 The statutes further hold that:

     It  shall be lawful for the owners of ditches
     and water  rights taking water from the same
     stream, to exchange with, and ban to, each
     other, for a  limited time, the water to which
     each may be entitled, for the purpose of
     saving crops  or using the water in a more
     economical manner. . .  (C.R.S. §37-83-105).

 The general rule with respect to the exchange of
 water is that if it will  create a benefit and no
 injury is caused,  then the exchange will be allowed
 (King v. Ackroyd,  28 Colo. 488, 66 P. 906, 1901).

 3.2.7.  Waste Water Disposal and Drainage

 A lower proprietor is not entitled to recover
 damages for the natural discharge of water upon
 his land when the water was sent down in a manner
 no different than  it was formerly  (Boulder v.
 Boulder. 73 Colo. 426, 216 P.553, 19237-  Colorado
 adheres to the  civil law rule which holds that lower
 land is burdened with a natural  easement of
 drainage in favor of higher land.

 However, in Olney Springs Drainage District v.
 Auckland  (83 Colo. 510,  267 P.605, 1928), the
 court held that a  landowner cannot drain water over
 another's land  without his consent.

 3.3  ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS

 3.3.1   State Water Agencies

 Responsibility  for water administration and control
 is divided between (1) the State Engineer, who is
 the executive director of the Division of Water
 Resources which is composed  of seven Division
 Engineers and Water Commissioners,  a Ground Water
 Commission, an  Irrigation District Commission and
 a Board of Examiners of Water Well  and  Pump
 Installation Contractors; (2)  the Colorado Water
 Conservation Board; (3) the  Colorado Water Pollution
Control  Commission; and (4)  the judiciary composed
of one district court judge  who is  designated as
a water judge for each of the seven water divisions.

The Division of Water Resources, headed by the State
 Engineer, is made up of:   Water Operations,
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Engineering and Hearing or Legal.  The Water
Operations Section administers the use and distri-
bution of the state's surface and ground water.  The
Engineering Section gives technical support for
administration in the fields of records and files,
hydrography, hydrology and dams and reservoirs.  The
Hearing or Legal Section is responsible for
advising and coordinating legal matters in water
law conflicts.

The principal responsibility of the State Engineer
in Colorado "is to administer the laws . . . pertain-
ing to water rights and, at the request of the Gover-
nor, to render service and give counsel to other
agencies of the state" (C.R.S.  §37-80-103).  The
Colorado Revised Statutes hold that "the Governor
shall appoint a State Engineer, pursuant to Article
XII, Section 13, of the constitution of the state
of Colorado" (C..R.S.  §37-80-101).   The  statutes go
on to note that:

     The Civil Service Commission shall require
     that the State Engineer shall be a person
     qualified to be a registered engineer in
     Colorado having the background of knowledge
     and experience in areas essential to the
     proper discharge of his duties and functions
     (C.R.S. §37-80-113(1) (a)).

The State Engineer reports to the Executive Director
of the Department of Natural Resources and the
duties of the office are spelled out in the
statutes as follows:

     (1)  The State Engineer shall be the executive
          officer in charge of supervising the work
          of all division engineers ... He has
          executive responsibility and authority
          with respect to:
          (a) Discharge of the obligations of the
          state of Colorado imposed by compact or
          judicial order on the office of the state
          engineer;
          (b)  Securing and implementing legal
          opinions and assistance regarding the
          work within his jurisdiction;
          (c)  Coordinating the work of the division
          of water resources with other departments
          of the state government. . . ;
          (d)  The supervision of employees in the
          office of the division of water resources
          ...»
          (e)  Construction contracts, professional
          and technical consultants and other
          contracts related to the operation of the
          division of water resources;
          (f)  The keeping and preparation of
          records and investigations as related to
          carrying out the functions of the division
          of water resources, including water well
          licensing;
          (g)  Rule making for the division of water
          resources;
          (h)  General supervisory control over
          measurement, record keeping, and distribu-
          tion of the public waters of the state;
          (i)  Collection and distribution of data
          on snowfall and prediction of probable
          run-off therefrom;
     (2)  The State Engineer shall have authority to
          delegate any other person the obligation
          to discharge one or more portions of
          the duties imposed upon him. . .
     (6)  (a)  The State Engineer and those under
         his supervision shall  be subject to the
         direction of the executive director of
         the department of natural  resources with
         respect to those matters concerning the
         division of water resources which require
         coordination with other branches of the
         department of natural  resources.
     (7) Under the control and  direction  of the
         State Engineer, and in cooperation with the
         Colorado water conservation board, there
         shall be a water supply section, which
         shall have the duty to collect and study
         data and distribute such information on
         the water supplies, both surface and ground
         water, of the state of Colorado  in order to
         make a more efficient  administration of
         the uses thereof (C.R.S.  §37-80-102(1-8)).

The State Engineer is a member  of the Western States
Water Council, Board of Examiners,  Water  Well and
Pump Installation Contractors,  Colorado Ground Water
Commission, Colorado Water Conservation Board and
Irrigation District Commission.  He has also been
appointed the Commissioner of the Rio Grande River,
Republican River, La Plata River, South Platte River,
and Costill a Creek Compacts.

To assist the Office of the State Engineer in
administrating the state's waters,  seven  water
divisions were created for the  9 drainage basins
in the state in 1969; thereby eliminating the
previous 70 districts.  Water distribution and
administration of laws at division and local levels
are carried out by a division engineer and his staff.
The former is appointed by the  State Engineer (C.R.
S. §37-92-201 and 202

The Colorado Water Conservation Board was estab-
lished  to  aid in  the  protection and development of
the waters of the state for the benefit of the
present and future inhabitants  of the state
(C.R.S. §37-60-102).  The Board consists  of 13
members.  The Natural Resources  Coordinator, Attorney
General, State Engineer, and Director of  said Board
are ex-officio members  (C.R.S. §37-60-104).  The
remaining members are appointed by the Governor for
terms of three years.

According to the statutes:

     It shall be the duty of the Board to promote
     the conservation of the waters of the state of
     Colorado in order to secure the greatest
     utilization of such waters and the utmost
     prevention of floods; and  in particular, and
     without limiting the general character of this
     section, the Board shall have power  and it shall
     be its duty:

     1.  to foster and encourage irrigation dis-
     tricts, public irrigation  districts, water
     users' associations, conservancy districts,
     drainage districts, mutual reservoir companies,
     mutual irrigation companies, grazing districts,
     and any other agencies which may be  formed
     under the laws of the state of Colorado . .  .;

     2.  to assist any such agencies in their
     financing, but not to lend or pledge the credit
     or faith of the state of Colorado in aid
     thereof, or to attempt to  make the state
     responsible for any of the debts, contracts,
     obligations, or liabilities thereof;
                                                     133

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3.  to devise and formulate methods, means,  and
plans for bringing about the greater utiliza-
tion of the waters of the state and the preven-
tion of flood damages therefrom .  . . ;

4.  to gather data and information looking
toward the greater utilization of the waters
of the state and the prevention of floods
and for this purpose to make investigations
and surveys;

5.  to cooperate with the United States and
the agencies thereof, and the other states
for the purpose of bringing about the greater
utilization of the waters of the state of
Colorado and the prevention of flood damage;

6.  to cooperate with the United States . .  .
in making of preliminary surveys,  and sharing
the expense thereof, when necessary respecting
the engineering and economic feasibility of  any
proposed water conservation or flood control
project within the state of Colorado . . . ;

7.  to formulate and prepare drafts of legisla-
tion, state and federal, designed to assist  in
securing greater beneficial use and utilization
of the waters of the state and protection from
flood damages;

8.  to investigate the plans, purposes and
activities of other states, and of the federal
government, which might affect the interstate
waters of Colorado;

9.  to confer with and appear before the
officers, representatives, boards ... or
other agencies of other states, or of the
federal government, for the purpose of
protecting and asserting the authority,
interests and rights of the state of Colorado
and its citizens over, in, and to the waters
of the interstate streams in this state;

10.  to acquire . . . any real property or
interest therein with respect to any project
specifically authorized by the United States
Congress for the prevention or control of
floods, including but not limited to easements
and rights of way for ingress into and egress
from such project, with the power in either
event to ^ase such lands or interest therein
to agencies of the federal government or to
the state or any agency of political subdivision
thereof for the construction, operation, or
maintenance of flood control and prevention
facilities;

11.  in general, to take such action and have
such powers as may be incidental to the fore-
going specific provisions and to the general
purposes of this article;

12.  to enter into contracts as hereinafter
provided for the construction of conservation
projects which, as authorized by the general
assembly under procedures set forth in Section
37-60-122, will conserve and utilize for the
best advantage of the people of this state,
the water and power resources of the state,
including projects beyond the boundaries of the
state of Colorado located on interstate waters
when the benefit of such project accrues to
the citizens of the state of Colorado, upon
application under such rules and regulations as
     the Board shall  establish;

     13.  to file applications  in the name of  the
     Department of Natural  Resources  for the
     appropriation of water;

     14.  to take all action  necessary to acquire
     or perfect water rights  for projects sponsored
     by the Board; and

     15.  to sell or otherwise  dispose of property
     owned by the Board, in the name  of the state of
     Colorado, as a result  of expenditure from the
     Water Conservation Board Construction Fund in
     such manner as to be most  advantageous to the
     state.(C.R.S. 537-60-106(1-16)).

The Colorado Conservation Board has been directed
to make, or cause to be made, a continuous study
of the water resources of the state of Colorado.
It shall also carry on a continuous study of the
present and potential uses  thereof to the full
extent necessary to a unified and harmonious
development of all waters for beneficial use in
Colorado to the fullest extent  possible under  the
law, including the law created  by compacts affecting
the use of said water (C.R.S. §37-60-115).

The state of Colorado has assented to the provisions
of the "Water Resources Planning Act," approved by
the U.S. Congress on July 22, 1965 (C.R.S.
§37-60-118(1)).  In this regard, the  Colorado  Water
Board was directed to conduct and establish a
comprehensive water planning  program, as defined
in Title III of the above act,  in conformity with
such rules and regulations  as may be  promulgated hy
the Water Resources Council pursuant  to said act.

The Colorado Water Board is authorized to make
available for use to, or enter  into contracts  with,
private organizations or state  agencies any water
or power conserved on state owned or  controlled
water projects  (C.R.S.  537-60-119).  The Board is
further empowered to enter  into contracts which are
"necessary for the maintenance  and continued opera-
tion of such projects"  (C.R.S.   §37-60-120).

3.3.1  Judicial Bodies

As noted above, the Water Right Determination  and
Administration Act of 1969  (C.R.S. §37-92-101  et
seq.) established seven water divisions in Colorado
(C.R.S. 537-92-201).  The State Engineer appoints
one Division Engineer for each  district  (C.R.S.
537-92-202).  The Supreme Court of Colorado was
required to designate a Water Judge for each
division to hear all water  matters in the division
(C.R.S. §37-92-203(2)). The 1969 Water Right
Determination and Administration Act  gave jurisdic-
tion of all water matters to the water judges.  No
judge except a water judge can act on matters
relating to water.  Water matters include adjudica-
tion of claims, matters of beneficial application,
priorities of appropriation, enforcement of State
or division engineer orders and the validity of
State Engineers' rules  and regulations  (Baumgartner
v. Stremel, 496  F. 2d 705 Colo., 1972,  Kuiper  v.
Owners Conservation Ass'n.  490 P.2d 268, Colo. 1971 )•
'Colorado Water Conservation Board and the Bureau of
Reclamation, Colo. State Water Plan, Phase I—
Appraisals of Present Conditions and Phase II-- Legal
and  Institutional Consideration and Phase III—Plans
for  Development, Denver, 1974.

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Other matters such as the way in which irrigation
water is allowed to run off the land or a suit
to enjoin the use of water in a designated ground
water basin are administered by the Colorado Ground
Water Commission and suit may be brought in the
district court which has jurisdiction (Larrick v.
District Court. 493 P.2d 647, Colo.
Each judge is directed to appoint such referees as
may be needed (C.R.S. §37-92-203(4)), and the
referees are required to possess the training and
experience to enable them to render expert opinions
and decisions on water matters {C.R.S. §37-92-203
(6)).

The duties of the referee are as follows:

     The referee in each division shall in the first
     instance have the authority and duty to rule
     upon determinations of water rights and
     conditional water rights and the amount and
     priority thereof, determinations with respect
     to charges of water rights, approvals of
     reasonable diligence in the development of
     appropriations under conditional water rights,
     and determinations of abandonment of water
     rights or conditional water rights; and he may
     include in any ruling for a determination of
     right of conditional water right any use or
     combination of uses, any diversion or
     combination of points or methods of diversion
     and place or alternate places of storage, and
     may approve any charge of water right as
     defined in this article  (C.R.S. §37-92-301(2)).

The referee is an aid to the court and his findings,
though not absolutely binding on the court, guide
the inquiry and affect the result (In Re Water
District No. 38, Irrigation Division No. 6. 520 P.2d
589, Colo. 1974).  Where a district judge has made
findings, the power of the water referee to submit
suggested contradictory findings is  limited by the
requirement that there be evidence to support the
action of the referee.  He may not lawfully make
findings on the identical evidence used by the Water
Judge, to contradict and overturn the court's
decision without having received additional evidence.

Additionally, under the Act, each Water Division
Office has a Water Clerk  (C.R.S.  §37-92-204(la)).
His duties are to maintain records related to
appropriations, determinations of water rights,
plans for augmentation, abandonment  of water rights
and conditional water rights, and the records of
all proceedings of the Water Judge  (C.R.S.  §37-92-
204(2)).

3.3.3  Water Users and Their Organizational
 Individuals--
 The constitution  and laws of Colorado declare all
 waters  of  the State to  be public  property, dedicated
 to use  by  appropriation.  In setting out the
 substantive  and procedural  components of the law to
 be followed  in appropriating the  water, the
 statutes define person  as "an  individual, a
 partnership, a corporation, a  municipality, the
 State of Colorado, the  United  States, or any other
 legal entity, public or private."  (C.R.S. §37-92-103
 (8)).   The rights and duties of individuals holding
 water rights does not differ from that of irrigation
 companies  or other users to the extent that water
 will be distributed by  the  state  according to
priority of the right, the water  right  can  be
protected against impairment by others  and  the
individual user must exercise his water right so
as not to waste water nor cause injury  to other
users through nuisance, neligence, trespass or
interference with their rights.

Companies--
Where it was no longer possible or desirable for
individuals to construct and operate their  own
diversion and delivery works, they began to form
cooperative relationships which evolved into
several distinct categories of private  and  quasi-
public companies.

The most common in Colorado is the mutual irrigation
company.  Mutual "water companies" are  private
organizations  which may be incorporated or
unincorporated, organized for the express purpose  of
furnishing water to stockholders  or to  persons with
vested rights in water (Farmers Water Development
Co. v. Barrett, 151 Colo. 140, 376 P.2d 693, 1962). .
In 1969, there were a total of 1,752 mutual companies
of which only 546 were incorporated (1969 Census of
Agriculture, Vol IV).   These companies are non-
profit entities that can levy assessments for
operation and maintenance, but not charge for  the
water  itself (Zoller v. Mail Creek Ditch Co..  498
P.2d 1169, Colo. App. 1972).

The water rights held by the company are owned
by the shareholders  (Jacobucci v. Dist.  Ct. in
and for  County of Jefferson, 541  P.2d 667. Colo.
1975).   A mutual company can transfer,  sell or
lease  the rights to water that it holds, but the
shareholders can place restrictions on water
deliveries  in the companies' by-laws (Model Land
&  Irr. Co.  v. Madsen, 87 Colo. 166, 285  P.1100,
1930);

In many  areas through Colorado,  "carrier companies"
are'formed  to deliver water  from  the "mutual
company" to water users  not  within the reach of
the mutual's delivery system.  These companies
assess their members  fees for  operation  and
maintenance and  may  or may  not be organized for
profit.   Often ownership of  shares  in a  carrier
company  are restricted to landowners adjacent to
their  ditches.

The second  major water company is the commercial
entity,  organized for  profit,  and either owning
its own  water  rights  or  delivering water for
other  water right holders.   These entities may be
classified  as a  public utility and subject to
a  higher degree  of care  and  trust in the delivery
of water to consumers  (Putnam pitch Co.  v. Bijou  ,
Irr.  Co.,  108  Colo.  124, 114 V.U 'M, U>lo. 1941  )-

Irrigation  Districts—
Initially,  water development in  the West was
undertaken  by  private parties  acting individually
or collectively in  the form of irrigation  companies
or associations  (described  in  the next section).
Because  of  the  private nature  of this  early
development,  expansion  depended  upon personal
initiative  and  capital.   Shortly  before  the turn
of the century,  California  adopted  the Wright
Act  of 1887 allowing for the formation of  public
entities to plan,  construct, and  operate more
complex  and extensive water projects.

The  success of this  approach and  the emergence of
the  federal  reclamation  activities  in  the  West led
Colorado to adopt the Irrigation District  Law of
                                                      135

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1905 (C.R.S. §537-41-101 to 160) .  This law states
that a majority of landowners may petition to form
a district to provide irrigation and drainage to
such lands and may also cooperate with the federal
government for construction, operation, and mainten-
ance of irrigation works.  The petition is filed
with the County Commissioners and, after published
notice and a hearing, the district can be formed if
a majority of landowners approve.  Once organized,
the district can acquire water, water rights, and
necessary properties to carry out its purposes;
it can sell bonds and levy assessments against
irrigated lands in the district boundaries and
allocate water during periods of drought in the
best interest of all parties.

The Irrigation District Law of 1921 was enacted to
provide for the reclamation of lands and development
of new irrigation systems (C.R.S. §§37-42-101 to
140).   A petition from a majority of landowners is
submitted to the County Commissioners.  The
Commissioners transmit the proposal to the State
Engineer who must prepare a feasibility study and
make his recommendation to the Conmissioners.  If
approved, a board of directors is elected.  The
district has broad powers to acquire properties and
operate facilities but must adopt a definite plan to
carry out the purposes of the district.  It also
has authority to Tease surplus waters (C.R.S.
§§37-42-113, 117 and 135, respectively).

In 1935, an act was passed which expanded and
clarified the powers and duties  of irrigation
districts (C.R.S.§137-43-101 to  189).  This law
provides, among other rights, that a district can
undertake drainage activities, have preferred
rights to seepage and waste waters within district
boundaries, and refuse water delivery  to land upon
which assessments are delinquent (C.R.S. §§37-43-122
123, and 143, respectively).

The board of directors of such a district are given
the power to distribute available water upon
certain or alternate days to varying localities  in
the event of a shortage (C.R.S.  §37-41-130).

Conservation and Conservancy Districts—
Distinct and independent from the Colorado Water
Conservation Board are  three water conservation
districts—Colorado River Water  Conservation
District, Southwestern Water Conservation District,
and Rio Grande W$:er Conservation District
 (Respectively, C.H.S. §37-46-101 to 132, 537-47-101
 to  132, and  §37-48-101  to  122 ). These districts
 promote,  plan, and develop water resource projects;
 conduct necessary background studies;  and represent
 the interests of the residents  in  compact matters.
 In  addition, they work  closely with the Water
 Conservation Board.  They  are  primarily project
 planning  and development entities  and  leave  the
 construction and operation  of  projects to the water
 conservancy districts.

 At  first  glance, Colorado  laws  on  conservancy
 districts  nay appear repetitious.  The laws  contain
 two specific  articles relating  to  formation  of
 conservancy districts.   The first—set out  in Title
 37, Article 1, and entitled the Conservancy  Law  of
Colorado—authorizes  the formation  of  districts  to
 prevent  the loss of life and properties from floods
 and other uncontrolled  waters.   Districts  can  be
 organized for any of the following purposes:
 (1)  preventing  floods;  (2)  regulation of stream
 channels  or stream  flows;  (3)  diverting, controlling
or eliminating water courses;  (4)  protection of
public or private property from inundation (this
is accompanied by broad powers to  change the course
of any stream by any means);  and (5)  conservation,
development, utilization, and  disposal  of water for
agricultural, municipal, and  industrial  uses when
desirable (C.R.S.  §37-2-101).

To establish such a district,  it is necessary to
file a petition setting forth  the  name of the
proposed district, that property within the boundar-
ies of the proposed district  that  will  be benefited
by the establishment of the district, a general
description of the purpose of  the  contemplated
improvement, and a description of  the property
to be included within the district if it is
established (C.R.S. §37-2-102(2)).  This petition
must be filed in the Office of the Clerk of the
Court, which is vested with jurisdiction in a county
in which all or part of the lands  embraced in the
proposed district are situated.  The petition must
be signed by either 200 county landowners or by  a
majority of the owners of land located within the
limits of the territory of the proposed district
(C.R.S. §37-2-102(1)).

The statute provides for hearings  on the petition
after proper notice is given by publication.  If
no objections have been filed or if they have been
but have proved without merit, the District shall
be organized by order of the District Court.
(C.R.S. §37-2-105(7)).   The order of the court is
final with no appeal permitted  (C.R.S.  537-2-105
(10)).

Once the district  is organized and the  board of
directors has been appointed by the court, the
directors are authorized to alter, straighten,
widen, deepen, or change the course of any water
or watercourse.  They may fill any abandoned
watercourses and may construct ditches,  canals,
sewers, dikes, or  any other works deemed necessary
to protect, operate, or maintain the works  in or
out of said district.  They are also given broad
powers to construct or renovate bridges, highways,
and rights-of-way  or to condemn and purchase land
for these purposes.  They may not, however,
regulate or administer water rights nor damage or
take such rights without just compensation
(C.R.S. §37-3-103(1) and  (2)).

The second  type of conservancy district is
authorized  under the Water Conservancy  Act  of 1937
 (C.R.S. §§37-45-101 to  152).  The need  arose to
provide for the formation of an irrigation-
oriented water entity, at a level higher than
the irrigation district,  to plan  and construct
water  projects encompassing a greater area  with a
basin  and to  provide a tax base including all
lands  within  their boundaries,  not just the
 irrigated lands.   The water conservancy district
concept was adapted  to  provide  for the  conservation
of water use in Colorado for  the  direct and indirect
benefit of  the public,  industries, municipalities,
and irrigation water users by  providing adequate
and timely  water  supplies and  stabilizing the
flow  of streams.   Further, the  districts are to
strive for  the highest  duty of  water allocated
under compact and  control  to  insure  the beneficial
 use of all  unappropriated water to a direct or
 supplemental  use  by all  beneficial users (C.R.S.
 §37-45-101)-
                                                     136

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As with the flood control conservancy district, the
formation of water (development and management)
conservancy districts follow statutory procedures in
the appropriate district court (C.R.S. 537-45-108).
These procedures are too complex for simple summa-
tion so interested parties are referred to the
statutes to determine the extent of valuation of
land, minimum number or percentage of landowners
needed to sign the petition, and the contents of the
petition.(C.R.S. §37-45-109).  Once a district has
been approved and organized, the district court
will appoint a board of directors of not more than
15 residents from counties situated in the new
district (C.R.S. §37-45-114).  The districts have
these powers, among others:  to acquire and sell;
lease or otherwise dispose of water, waterworks,
and water rights; construct and operate facilities;
exercise eminent domain powers to condemn private
property for public use; contract with the federal
government for construction, operation, and mainten-
ance of project facilities; and fix water rates for
non-project water users {C.R.S. §37-45-118).
Districts also have the power to make special
assessments, levy an ad valorem tax on all property
within the district, and issue bonds.  There are
36 such districts, organized under Article 45 and
currently planning or operating water development and
utilization projects.

River Basin Authorities--
Colorado enacted legislation to permit the formation
of river basin authorities for the purpose of
stabilizing ground and surface water supplies and
encouraging the maximum utilization of water by
planned management (C.R.S. §37-93-101).  The
powers of specific importance to irrigation effi-
ciency are:

     To establish standards for the proper utiliza-
     tion of water used within the territorial limits
     of the authority the violation of which stand-
     ards will be prima facie evidence of waste.
     For the purposes of this article, the following
     definitions will govern the authorities in the
     establishment of such standards:

     1.  Full water supply.  Full water supply is
     one which is adequate but not surplus to
     accomplish the purpose for which the diversion
     was lawfully made.

     2.  Full water supply - agricultural.  A full
     water supply at the farm headgate is that
     quantity and quality of irrigation water in
     addition to natural precipitation which is
     adequate when applied consistently with good
     farming practices to supply crop consumptive
     uses and soil leaching requirements plus
     reasonable farm losses.  Such supply will vary
     from year to year and throughout each year as
     influenced by use patterns and climatic condi-
     tions and will be dependent upon type of crop,
     soil, and topographic conditions.  Such a
     supply, if converted to diversion requirements,
     must include reasonable transportation losses,
     and storage losses where applicable, between
     the point of diversion and the farm headgate.

     3.  Historic usage.  The historic usage is that
     quantity of water diverted or stored and used
     under any water right or combination of water
     rights as reflected by accurate records,
     otherwise as estimated by recognized formulas.
     Such usage may be more or less than a full
     water supply.
     4,  Waste.  Waste is causing or permitting
     the consumption or application of water in
     excess of that required to accomplish the
     purpose for which the water is diverted,  or
     permitting water to escape from ditches,
     canals, or other works, in excess of reasonable
     loss.

To date, no such entities have been formed.   Water
users view the basin authority as another taxing
entity.  As pressure mounts upon present water
supplies, however, the role of such organizations
may be brought actively upon the scene.

3.4  POLLUTION CONTROL

Colorado followed federal action in updating its
laws and adopted the Water Quality Control  Act of
1973.8  The Act was passed in recognition of the
fact that pollution of state waters is a menace
to public health, a nuisance to the public,  harmful
to wildlife and aquatic life, detrimental to
beneficial uses of waters of the state,  and  in
close interaction with water pollution problems  in
adjoining states (C.R.S. §25-8-102(1)).

The Act was adopted pursuant to the declared public
policy to:

     . .  . conserve state waters and to protect,
     maintain, and improve the quality thereof
     for public water supplies, for protection
     and propagation of wildlife and aquatic life,
     and for domestic, agricultural, industrial,
     recreational, and other beneficial  uses
     (C.R.S. §25-8-102(2)).

Regarding the matters of pollution, general  policy
further provided:

     . .  . that no pollutant be released into any
     state waters without first receiving treatment
     or other corrective action necessary to
     protect the legitimate and beneficial uses  of
     such waters and to prevent, abate and
     control new or existing water pollution and to
     cooperate with other states and the federal
     government in achieving these objectives
     (C.R.S. §25-8-102(2)).

Among the key requirements of the Act are (1) crea-
tion of a Water Quality Control Commission (C.R.S.
§25-8-201+); (2) a plan to classify state waters
(C.R.S. §25-8-203+);  (3) standards by which to
describe water quality  (C.R.S. §25-8-204+);
(4) a method for promulgating water quality control
regulations (C.R.S. §25-8-205+);  (5) a method for
reviewing the adequacy of individual sewage disposal
systems (C.R.S. §25-8-206+);  (6) administrative
machinery to supervise loans and grants and to
coordinate with other state bodies (C.R.S.
§25-8-207+);  (7J a chain of command for administer-
ing and enforcing water quality control  programs
(C.R.S. §25-8-301+);  (8) a system for administra-
tively proceeding to effect the regulations of the
SG. E. Radosevich and P. Allen, Colorado Water
Quality Control and Administration, Laws and Regula-
tions, E.R.C. Information Series 12, Center for
Economic Education, Colorado State University, 1974,
and supplements, for a current compilation of water
quality control laws and Commission regulations.
                                                     137

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commission (C.R.S.  §25-8-401);  (9) a permit system
for the discharge of pollutants {C.R.S.  §25-8-501+);
and (10) enforcement provisions (C.R.S.  §25-8-601+).

REFERENCES
          ,  "A Survey of Colorado's  Water Law," Note,
47 Den. L.  J.  226, 1970.

Geraghty, J.,  D. Miller, F.  Van der Leeden, F.  Troise,
Water Atlas of the United States. Water Information
Center, Port Washington, New York, 1973.

Hamburg, D., "Colorado Water Laws Governing Water
Rights," Colorado Water Conservation Board, Denver,
Colo., unpublished paper, 1968.

Hutchins, Wells, Selected Problems in the Law of
Water Rights in the West. Misc. Pub. 418. U.S.D.A..
Washington, 1942.

Kuiper, C.J.,  Colo. State Engineer, "Multi-Disciplin-
ary Approach to Conjunctive Use of Surface and
Underground Waters—A Case Study," Proceedings:
International  Conference on Global Water~Law
Systems. Colo. State Univ.,  Ft. Collins,  Colo.  1976,
Vol. 4, p.  1411.

Moses, R.,  and Varnesh, "Colorado's New Ground Water
Laws,"  38 U.  Colo. L. Rev.  295, 1966.
                                                     138

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                                               APPENDIX A REPORT 4
                                                     IDAHO
4.1  HISTORICAL BACKGROUND
Like many of Western states, Idaho's economy is large-
ly dependent upon agriculture.  The state, with
52,910,000 acres of land, is fortunate to have sig-
nificant quantities of surface and ground water.  An-
nual precipitation ranges from 40 to 50 inches in the
Clear-water, Payette, Boise, Salmon and Priest River
Basins to + or -10 inches in Custer County, for an an-
nual average precipitation of 18 inches.  The mean
annual runoff amounts to 4,543,000 acre feet (State
Water Plan Part One, 1974, p. 5.).

Agriculture, the state's largest employer, is scat-
tered throughout six hydrologic basins.  However, the
majority of the 4,038,700 irrigated acres in the state
(Irrigation Journal, 1975) lie within a 50-mile-wide
belt along the Snake River and its tributaries around
the Pocatello-Idaho Falls area.  Approximately 15 to
20 million acre-feet of water per year is diverted
for irrigation in the state (Interim State Water Plan.
1972).  In addition, there is approximately 3,200,000
non-irrigated acres of land under production (State-
wide Water Quality Management Planning Report, 1976,
p. 73).

With natural conditions conducive to an agrarian life,
irrigation began to take place in the state nearly a
century ago along the Snake River.  Farming increased
markedly in the late 1800's and early 1900's and again
in the mid-1900's under the Federal Reclamations Act
programs.  As a result of the large irrigation pro-
jects, in 1972 Idaho ranked second only to California
among the Western States for irrigated acreage (Inter-
im Report. 1972, p. 83).

Idaho adopted the law of prior appropriation of water
as the governing law of water use early in its
history.1  In 1881, statutes were enacted which pro-
vided for appropriation of water and posting notice at
the diversion site (Idaho Laws, 1881, p. 267) and dis-
tribution of water by water masters (IdahoLaws, 1881,
p. 273).  This practice of allocating water and pro-
tecting the user was upheld by the territorial Supreme
Court in 1888 (Halad Valley Irrigation Co. v^ Campbell,
2 Idaho 411, 18 P. 52, 1888).Following the court's
decision, the next year, when Idaho was granted state-
hood, the constitution included six sections incor-
porating the appropriation doctrine into the highest
law of the State (Ida. Constitution Art. 15, sec. 1-6).

The riparian doctrine was repudiated to the extent
that any conflict occurred between the appropriation
and riparian doctrines (Drake v. Earnart, 2 Idaho 750,
23 P. 541, 1890; Jones v. Melnti re. 60Tdaho 338, 91
P. 2d 373 and Haher v. Gentry, 67 Idaho 559, 186 P.2d
870, 1947).  There is, however, the right of a ripar-
ian landowner to protect his land from stream over-
flow (Fischer v. Davis. 19 Idaho 493, 116 P. 412,
1911).This right does not permit a landowner to
place objects in the stream with the intent of divert-
ing it if the result is to divert the stream onto the
land of another (Chandler v. Drainage District No. 2,
68 Idaho 376, 187 P.2d 971, 1947).  Riparian landown-
ers, whose water claim is inferior to that of an ap-
propriator, hold superior rights to any right claimed
by a stranger or intermeddler (Hutchinson v. Watson
Slough Ditch Co.. 16 Idaho 493, 101 P. 1059, 1909).
JFor an expanded background of water law in Idaho, see
Hutchins, W. A., "Idaho Law of Water Rights," Idaho
Law Review, Vol. 5, Fall 1968, No. 1, pp.  8-11.
A recent case has addressed the relationship  between
appropriators and riparian landowners  (Weeks  v. McKay,
85 Idaho 617, 382 P.2d 788, 1963).   This  case in-
volved a downstream appropriator who sought to enjoin
the maintenance of a dam by a riparian owner.   The  ri-
parian owner appealed from a decree granting  the in-
junction.  The Supreme Court of Idaho  modified the
lower court's decree while insuring that  the  appropri-
ative right would not be impaired.   The court also
held that to protect the upstream owner's riparian
right (to maintain the level of his lake  against en-
croachment by an appropriator)  the  riparian owner need
not release any more water through  a dam  than would
naturally and normally flow through the lake  outlet.
This was the case even though the amount  of water
flowing from the lake was less  than the quantity to
which the appropriator was entitled.  Thus, the dam of
the riparian had made the appropriator's  right pos-
sible for the appropriator to get his  entire  supply,
but he was still under no obligation to supply that
right to any extent greater than the natural  flow of
the stream.

Idaho's water laws were enacted and amended several
times until 1903 when a comprehensive  statute was
adopted that, among other changes,  instituted the cur-
rent permit system for acquiring water rights (I.C. §
42-101 et seq.).  Since 1903, this  basic  law  has been
amended numerous times, particularly in 1951  and 1953
when ground water allocations and administration were
specifically addressed.  Then in 1964, the constitu-
tion was amended providing for the  creation of a state
water resources agency (Ida. Constitution, Art. 15,
Sec. 7) followed one year later by  the 38th Legisla-
ture establishing the Idaho Water Resources Board and
its staff agency, the Idaho Department of Water Admin-
istration.  In an effort to consolidate all state re-
sponsibilities for water resources  except water qual-
ity control  into one agency, the 1974 42nd Legisla-
ture designated the new agency as the  Idaho Department
of Water Resources.  The functions  of  the Department
of Water Administration and the Water  Resources Board
were transferred to the Department  of  Water Resources.
The eight-member board still exists, but  functions
within the new department.

One of the key functions of the water  resources agency
as required by the 1964 constitutional amendment was
to formulate and implement a state  water  plan. An
Interim State Water Plan  was released in 1972, fol-
lowed by an expansion of the water plan objectives  in
1974 (State Water Plan—Part One) and  an  application
of the planning process to the Snake River Basins in
1976 (State Water Plan, Part II:  Summary Report of
Conclusions and Recommendations and Technical and Sup-
port Information Report, both dated March 1976).  The
objectives significant to this examination of state
water laws are:
     1) application of a broader definition of the
        beneficial use of water to  include both con-
        sumptive and non-consumptive uses,
     2) maintenance and enhancement of environmental
        quality, i.e., water quality,
     3) inclusion of effects from water projects and
        programs on erosion and deposition of soil,
     4) maintenance of orderly growth  in  agricultural
        production,
     5) protection of natural resources and community
        environment of Indian reservations,
     6) recognition of equal consideration to fish  and
        wildlife needs for the state water resources,
        and
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      7) opposition  to  interstate water transfers and
        diversions  from Idaho  (State Water Plan—Part
        One:   the Objectives,  1974).

 4.2   SUBSTANTIVE WATER LAW

 4.2.1  Property Right  in Water

 Idaho  legislation provides  that all waters of the state
 flowing in  natural  channels, including natural springs
 and  lakes, are  the property  of  the state and that it is
 the  duty  of the state  to supervise the appropriation
 and  allotment  to water users (I.e. § 42-101).  All
 ground waters  are also property of the state (I.e. §
 42-226).  The  ownership of  the State in the water re-
 sources is  not a proprietary one, but rather a
 trustee role to regulate the appropriation and bene-
 ficial use  for the  common interest of the public
 (Waibridge  v.  Robinson.  22  Idaho236, 125 p. 812, 1912).

 There  are certain waters which are considered private
 waters and  beyond the  authority of the state agency to
 allocate, however.  These waters include any lake
 less than five acres,  pond, pool, or spring located
 wholly within  private  property (I.C. § 42-212).

 Both the  legislature and the courts have declared the
 right  to  use waterareal  property right (I.C. § 55-101;
 Boise  City  In. and  Land Co. v. Stewart. 10 Idaho 38, 77
 P. 25, 1904; In Re  Robinson, 61 Idaho 462. 103 P.2d
 693, 1940;  Anderson v.  Cummings. 81 Idaho 327, 340 P.2d
 1111,  1959)"!   This  right is a "valuable" private prop-
 erty right, subject to ownership and disposition by
 the  owner (Payette  Lakes Protective Ass'n v. Lake Res.
 Co., 68 Idaho111,  189 P.2d 1009, 1948; Reno v.
 Richards. 32 Idaho  1,  178 P. 81, 1918).  A right
 holder can  sell, lease or transfer his right.  And
 since  it  is a  real  property right it may be protected
 by injunction, mandamus,  or prohibition when threat-
 ened by irreparable injury  (Olson v. Bedke. 555 P.2d
 156, 1976).

 An action to quiet  title  to an appropriative right and
 to establish the right to divert and use the water is
 in the nature  of an action to  quiet title to real es-
 tate.  One must rely upon the  strength of his own
 title to  establish a claimed right, not upon his ad-
 versary's weakness  (Harris v.  Chapman, 51  Idaho 283,
 5 P.2d 733, 1931).

 The nature of  the water  right  and protection afforded
 a water right  holder is set out in the State constitu-
 tion as basic  politics.  Section 1 of Article XV states
 that the  use of water  now or hereafter appropriated
 under the laws of the  state is declared to be a public
 use subject to the regulation and control  of the state.
 Also, the use of any lands for water works facilities
 and conveyance is a public use (Ida.  Const.  Art 1,
 Sec. 14x).  The right  to divert unappropriated water
 of any natural stream  to beneficial uses will  not be
 denied, but the state may regulate and limit the use
 of water  for power purposes (Ida.  Const.  Art.  15, Sec.
 3).  Once a water right for agricultural  purposes has
 been acquired, under contract of sale,  rental  or dis-
 tribution, the continued annual use is guaranteed ex-
 cept by consent of the owner or failure to comply with
 terms and conditions presented by law (Ibid.,  Sec.  4).
 Priority  in time gives priority in right under normal
 circumstances   for water users receiving water for ag-
 ricultural purposes  under a sale,  rental  or distribu-
 tion of appropriated water,  but in times  of scarcity,
 the legislature can  reasonably apportion the supply
 among the various  users or settlements  (Ibid.,  Sec.  5).
 Idaho has one   other important constitutional  provision
which demonstrates the intent to prevent unreasonable
 profits or imposition of excessive  costs  from sale or
 rental  of waters.   Section  6,  Article  XV  directs the
 legislature to provide the  manner of establishing
 reasonable rates  for selling or  renting water.

 A water right  gives the appropriator the  right to
 have the water which he has appropriated  available at
 his  point of diversion which extends to quality as
 well  as quantity  and reaches upstream  to  tributary
 sources which  supply the right (Valley Irrigation Co.
 v. Campbell. 2 Idaho 411, 18 P.  52, 1888).  The right
 which an appropriator acquires does not extend to the
 corpus  of the  water while it is  in  a neutral water-
 course  or public  source of  supply (Albrethsen v. Wood
 River Land Co., 40  Idaho 49, 231 P. 418,  1924).

 Water flowing  in  a  natural  stream is not  subject to
 private ownership.   The nature of the  right is to di-
 vert water from a public source  for the purpose of
 applying the water  to a beneficial  use (Idaho Code,
 42-101.   See also Coulson v. Aberdeen-Springfield
 Canal Co..  39  Idaho 320, 227 P.  29, 1924; Washington
 County  Irrigation District  v.  Talbay,  55  Idaho 382,
 43 P.2d 943, 1935).   The right to use water is a usu-
 fructuary right,  i.e.,  the  right of enjoying a thing,
 the  property of which is vested  in another (Sauve v.
 Abbott.  19  Fed. 2d  619,  D.  Idaho 1927).   Coupled with
 every right  is  a corresponding duty.   Used in a con-
 text  relating  to water law, the duty is to use the
 water beneficially  or without  waste.  The term "usu-
 fructuary" must be  limited  by  defining one's cor-
 responding  duty to  the  water.  The word "duty" is the
 correlative  of a right.  Thus, wherever there exists
 a right in  any person,  there also rests a correspond-
 ing  duty upon  some  other person or upon all persons
 generally (Black's  Law Dictionary, 4th Edition).   A
 user  cannot  take more water than the quantity which
 is specified in his  permit  and is limited by the
 beneficial use  requirement  (I.C.  §42-220).

 4.2.2  Acquisition  of Right

 General —
 Before 1971  there were  two methods to acquire an ap-
 propriative  right,  the  constitutional  method which  re-
 quired diversion and  application of water to a bene-
 ficial use (Sand Point Water and Light Co. v.  Pan-
 handle Developments Co., 11  Idaho 405,  83 P.  347,
 1905) and the statutory method.  The constitutional
 method derived from the  Idaho constitution, which  de-
 clares that the right to appropriate the unappropri-
 ated water from a stream shall  never be denied (Idaho
 Const. Art. XV, Sec.  3).  Thus, the appropriation was
 complete  upon the application of the water to a bene-
 ficial use and the priority dated from the time the
water was actually placed to a beneficial  use (Crane
 Falls Power and Irrigation Co.  v. Snake Irr.  Co., 24
 Idaho 63, 133 P. 655. 1913).

 In 1971,  legislation was enacted  which  provided for  an
exclusive method for  initiating a water right.   Under
this  method, the appropriator must obtain  approval
 from the director of the Department of  Water Adminis-
tration for his application  to  appropriate (I.C.  5
42-202).  The appropriation  must  be for some  useful or
beneficial purpose and once  the use for this  purpose
ceases, so does the right (I.C. § 42-104).  But,  in a
contest between a water user holding a  permit  under
the statutory method, and one claiming  a  right under
the constitutional method, the  latter must bear the
burden of proving his diversion occurred prior to the
permit issued by the State,  or  else his right  would
be junior to the permit (Peck v.  Sharrow.  531  P.2d
1157, 1975).
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The water user must file an application to appropriate
with the director.  If the appropriation is for irri-
gation the right is limited to one cubic foot per
second for each 50 acres of land or no more than 5
acre-feet per acre per year (I.e. § 42-202), unless
the director is satisfied that a greater amount is
necessary.

The director will give notice of the application by
publication and will approve the application if no pro-
tests have been filed (I.C. § 42-202).  In the event a
protest is filed the director will holdahearing (I.C.
§ 42-203).  The application must include 1) the name
and post office address of the applicant, 2) the source
of the water supply, 3) the nature of the proposed use
or uses and the period of use, 4) the location of the
point of diversion and a description of the proposed
ditch, channel, well or other works, 5) the amount of
water to be diverted and used, and 6) the time to be
allowed for completion of construction of such works
and application of water to the proposed use (I.C. §
42-202).

The director must determine the use to which the water
will be applied, whether the applicant has sufficient
financial resources to effect completion of the project
and whether the use will reduce the quantity of water
below an amount which is necessary to supply existing
right (I.C. 5 42-203).  The director will reject the
application or grant alesser quantity if the above
criteria have not been met (Ibid.).  The application
is an inchoate or contingent right if the holder pro-
ceeds to perfect his permit in accordance with the
statutory requirements (Big Wood^ Canal Co^ v. Chapman,
45 Idaho 380, 263 P. 45, 1927J.

Upon approval of his application, the applicant must
proceed with due diligence to complete his appropria-
tion within a time specified by the director (I.C. §
42-204).  Failure to submit proof of appropriation
causes the application to lapse.  Within 60 days before
the date of lapsing the director can reinstate the per-
mit upon a showing of reasonable cause but the priority
date is changed (I.C. I 42-218(a)).

If proof of the appropriation is submitted on time and
it meets all statutory requirements the applicant will
be issued a license which confirms his water use (I.C.
i 42-219).  Such proof must state, 1) the name and post
office address of such user, 2) the use to which the
water had been applied, 3) the amount used together
with a statement of the manner in which the quantity
of water was determined and the qualifications of the
person making such a determination, 4) the place of
use and, if for irrigation, the description by legal
subdivision of the land so irrigated, 5) the name of
the canal or ditch or other works by which water was
conducted to the place of use, 6) the relation or un-
derstanding upon which the right to take water from
such works is based, 7) the source of supply from which
the water is diverted, 8) the date of priority which the
user is prepared to establish and 9) other information
which might be required by the Department.  This li-
cense is binding on the State and constitutes prima
facie evidence of the water right.  The water right is
appurtenant to the land upon which the water is to be
used (Basinger v. Taylor. 36 Idaho 591, 211 P. 1085,
1922).

Several cases were decided in 1974 bearing upon the
rights of parties in acquiring any permit to appropri-
ate.  The basic questions of who can appropriate, how,
for what purpose, and burden of proof were answered by
the Court.  In Lemon v. Hardy (519 P.2d 1168, 1974), the
court held that an applicant who does not own land to
be irrigated under the application nor owns  the  point
of diversion is not entitled to a  permit for such
speculated purposes, and that even though his appli-
cation is amended and the defects  cleared, his appli-
cation will be junior in time to another who submits
an application during the interval.

Later in the year, the Supreme Court in a divided
opinion (one judge concurring, a second concurring
specially in a separate opinion and two judges dis-
senting) held that:  1) a state agency can appropri-
ate unappropriated water, 2) an appropriation for
recreation purposes and preservation of scenic views
is for a beneficial purpose, and 3)  a physical diver-
sion is not essential to a valid water right (State
Parks Department v. Idaho Department of Water Admin-
istration, 530 P.2d 924. 1974).The Parks Department
was responding to a legislative enactment authorizing
the Department to appropriate water for the citizens
of the state in a specific area because of the scenic
beauty and recreation potential (I.C. § 67-4307).  The
use was for maintenance of instream flows.

Ground Water--
All ground waters of the state are declared public
property (I.C. § 42-226) subject to use only by  appro-
priation (I.C. § 42-229).2  Prior to 1963, an appro-
priation of ground water could have been established
by pumping and applying the water to a beneficial  use
(Si!key v. Tiegs, 51 Idaho 344,5 P.2d 1049, 1931).

The State legislature in the early 1950's recognized
the need to apply flexibility in the prior appropria-
tions concept to the allocation of ground water.  The
traditional policy requiring beneficial use through
appropriation and priority of right among users  was
affirmed, but "a reasonable exercise of this right
shall not block full economic development of under-
ground water resources"  (I.C. 5 42-226).  The Director
of the Department of Water Resources must establish
and protect reasonable ground water pumping levels for
ear.ly appropriators, however (Ibid.).

Idaho statute defines ground water as being all  water
under the surface of the ground, without regard  to the
geological structure in which it is standing or  mov-
ing (I.C. I 42-230).  The procedure for acquiring  a
ground water right is the same as that for acquiring
any other water right under the statutory process  (I.C.
§ 42-229).  In addition  to the considerations previ-
ously discussed, the granting of a permit is also
dependent on whether or  not the locality has been
designated a critical ground water area.

Critical ground water areas are to be determined by
the Director of the Department of Water Resources.  A
critical ground water area is defined as any ground
water basin (or designated part of that basin) not
having sufficient ground water to provide a reason-
ably safe supply for irrigation of cultivated lands
or other uses in the basin at the current rates  of
withdrawal, or those rates of withdrawal projected by
consideration of valid and outstanding applications
and permits (I.C. 5 42-230).  The Director may deny
an application for a permit in a critical ground water
area if there is insufficient water available for the
proposed ground water appropriation.  If ground  water
is available in a lesser amount than that applied  for,
the Director has the discretion to issue a permit  for
2For a recent discussion of the legal constraints and
alternatives to ground water use in Idaho, see:
Ralston, D. R., et al., Analysis of the Impact of Le-
gal Constraints on Ground Water Resources Development
in Idaho, Ida. Bureau of Mines and Geology, Univ. of
Ida , Moscow, Pamphlet #158, Sept. 1974.

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the use of such water to the extent of water  availabil-
ity for such an appropriation (Ibid.).
Prescriptive Water Rights—
A water right may be lost by adverse possession or it
may be gained by prescription (Brossard v.  Morgan, 7
Idaho 215, 61 P. 1031, 1900; St. John Irrigation Co. v.
Dan forth. 50 Idaho 513, 298 P. 365. 193T; Pflueger v.
Hopple, 66 Idaho 152, 156 P.2d 316, 1945).   However,
as one case has pointed out, it is difficult for one
to acquire prescriptive rights to water because:
     a prescriptive right to the use of water cannot
     be acquired by the use thereof with the consent
     or permission of the owners, and as under the
     law of this state, it is a misdemeanor for the
     one who has the right to use the water to waste
     it, and the law requires him to permit it to
     flow down the stream if his necessities for
     the time did not require its use, it is made
     by the law, difficult to acquire a prescriptive
     right to the use of the water (Hall v. Blackman,
     8 Idaho 272, 68 P. 19, 1902; Mountain Home
     Irrigation District v.  Duffy. 79 Idaho 435.
     319 P.2d 965, 1957).
One entitled to the use of water is required by law to
let others use it if the original owner has no use for
it a specific point in time.  Therefore the prescrip-
tive owner may claim ownership under a law which, in
commanding the consent of the true owner, defeats the
requirements of prescriptive use.  The requirements
of a prescriptive title are such that adverse use must
be open (visible and notorious); adverse and hostile
to the claim of the rightful owner; exclusive of use
by the rightful owner; continuous and uninterrupted;
under a claim of right; and for the period required
by the statute of limitations (Harris v. Chapman, 51
Idaho 283, 5 P.2d 733, 1931). The difficulty in obtain-
ing a prescriptive right is apparent in that the law
requires that the water  be left in the stream when not
in use.  This would defeat the requirement of being
adverse and hostile to the rightful owner, since the
law has required the rightful owner to allow it to
happen.  It would also defeat the requirement that it
be notorious, which in this context is generally con-
strued to mean against the law.  Notorious may also
mean visible; with the knowledge on the part of the
true owner.  Since the law requires that the true
owner leave the water in the stream this would ob-
viously be met.  It may also be required that the use
interfere with the use of the rightful owner.   If the
law requires the riohtful owner to leave water in the
stream, there can be no interference with the right-
ful use of the true owner and a prescriptive right
would therefore be defeated.

Closely related to adverse use is the doctrine of
estoppel, which comes into use when a long and contin-
uous acquiescence in another's use and enjoyment of
property precludes one from subsequently asserting
one's own claim (HiTlcrest Irrigation District v.
Nampa and HeridiatTlrrigation District. 57 Idaho 403,
66 P.2d 115, 1937).Where a user has stood by and
watched for many years while another party used his
water on a theory that they had valid title to water
rights and has incurred large indebtedness on the
strength of the title, the law feels that it is fair
that the original owner be estopped from questioning
the Tatter's title.  A mere lapse of time, however,
is not sufficient.  It has to be shown that the
defendant has been misled to the point of injury by
the failure of the original owner to assert appropri-
ate rights (Mountain Home Irrigation District v. Duffy.
79 Idaho 435, 319 P.2d 965, 1957).
Preferences—
The Idaho Constitution sets out the traditional  dis-
tinction between a priority of right and right to
exercise a preference.  Between appropriators the pri-
ority of the appropriation gives the better right but
when a scarcity arises, domestic uses are preferred
above all other uses, followed by agricultural uses
and manufacturing uses.  However, in a mining district,
the use of water for mining or milling purposes  relat-
ing to mining have preference over manufacturing and
agricultural uses.  If a preference is exercised the
owner of a divested right must be fully compensated
(Montpelier Mill Co. v. Montpelier, 19 Idaho 212, 113
P. 741, 1911).

4.2.3  Adjudicating Water Rights

Idaho has a statutory procedure which aids in the so-
lution of conflicts between users of a common water
system (I.C. § 1401 to 1414).  When a suit is filed in
the District Court where the water source is located,
the Court may request the Department of Water Resources
to make an examination of water systems and report its
findings to the court.  The Director of the Department
of Water Resources may also initiate an adjudication
action in District Court upon receipt of a petition
signed by five or more of the users of water from any
water system or by a majority where the number of
users is less than five.

Notice of the filing of this action is given by  pub-
lication.  Protests against the commencement of ad-
judication may be filed.  If it is determined that
such an action should proceed, the Director begins
with a mapping of the water system and all system wa-
ter users.  Upon completion of this phase of the
examination, the Director is authorized to request the
District Judge to join all claimants from the source
being adjudicated, to require that they be served with
summons and to require that they file claims for their
water uses (I.C. § 42-1409).

Based upon the claims submitted and his investigations,
the Director shall prepare a report listing the  exist-
ing rights in the particular water system.  This re-
port is to be filed with the court and a copy sent to
each claimant.  After notice is sent and hearings con-
ducted, a decree shall be issued by the Court setting
out as a minimum:  the identity of the right holder,
priority, amount, season, purpose and place of use
(tract to which the right is appurtenant) and point
of diversion (I.C. 5 42-1410).  This adjudication
establishes the rights of all claimants in the stream
system and those, who, with notice, failed to appear,
are held to have forfeited all rights to water not
claimed (I.C. § 42-1411).  The right of appeal to the
Supreme Court exists for claimants and the Department
(I.C. § 42-1412).

4.2.4  Conditions of Use

Beneficial Use--
Both the Idaho Constitution and subsequent statutory
enactments require that water be appropriated for
beneficial uses, but neither source of the law nor
agency regulations on court decisions have defined the
term.  Section 42-104 states that "the appropriation
must be for some useful or beneficial purpose and when
the appropriator or his successor in interest ceases
to use it for such purpose, the right ceases."

It is further provided by statute that no licensee or
claimant of a decreed water right "shall at any  time
be entitled to the use of more water than can bene-
ficially be applied on the lands for the benefit of
                                                      142

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which such right may have been confirmed" (I.e.  §  42-
220).  This limitation to beneficial use is held to
be subject to local  and community customs and those
rules and regulations which may be adopted by a major-
ity of the users froma common source of supply.   These
user rules and regulations are designed to encourage
the economical use of water (I.C. § 42-220).

Thus the use of water is limited not only by the
amount which has been specifically appropriated but
also the amount which can be used beneficially (Lee v.
Han ford. 21 Idaho 327, 121 P. 558, 1912).

Duty of Hate i—
Beneficial use is the limitation on the amount of wa-
ter that an appropriatoris entitled to.  However,
there is also a statutory duty of water in Idaho gov-
erning appropriations of water for irrigation.  The
law provides that no one is entitled to divert more
than one cubic foot per second of the normal flow for
each fifty acres of land to be irrigated nor more than
five acre-feet of stored water per year for each acre
to be irrigated.  These limits may be exceeded if it
can be shown to the satisfaction of the Department of
Water Resources that increased applications are
necessary (I.C. S  42-202).  The requirements of the
land are taken into consideration in determining the
quantity of water to which the appropriator should be
entitled (Kirk v. Bartholetnew, 3 Idaho 367, 29 P. 40,
1892).

The point of measurement has been the subject of some
controversy.  Section 42-110, however, provides that
the holders of decreed rights are entitled to have
their water measured at the point of diversion.  This
has been affirmed by the Idaho Supreme Court (Bennett
v. Nourse. 22 Idaho 249, 125 P. 1038, 1912).

All  that exists is a right to use the water for bene-
ficial purposes (Albrethsen v. Wood River Land Co.,
40 Idaho 49, 231 P.  418, 1924).The Idaho Supreme
Court has held it is the policy of the laws of Idaho
to require the highest and greatest possible duty from
the waters of the state.  This is both in the interest
of agriculture and other useful and beneficial pur-
poses (Farmers' Co-operative Co. v. Riverside Irr.
Dist.. 16 Idaho 525. 102 P. 481. 1909; Washington"
State Sugar Co. v. Goodrich. 27  Idaho 26, 147 P. 1073,
1915).It has further held that it is the policy of
the  law to prevent the waste of water (Stickney v_._
Hanrahan. 7 Idaho 424, 63 P. 189, 1900;  Poole v.
Olaveson. 82  Idaho 496, 356 P.2d 61, 196
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River Land and Water Co., 225 Fed.  584,  D.  Idaho 1915).
The Idaho Supreme Court has held that the fact a jun-
ior appropriator could use water already decreed to a
senior appropriator more efficiently than the senior
appropriator was immaterial with the determination of
who had a superior right (Martiny v. Wells. 91 Idaho
215, 419 P.2d 470, 1966).

Waste—
The waste of water can be considered the opposite of
using the water beneficially.  Waste water is that
water which has been used by a prior user which has
left his lands and goes upon the lands of another, or
otherwise becomes available for use by another, with-
out returning to a natural watercourse.

The legislature specifically prohibits the wilful or
wanton waste of water used for irrigating by diverting
it for unnecessary uses or purposes, or allowing it to
run to waste when such conduct is detrimental to an
irrigator (I.C. § 18-4302).  One committing such waste
is guilty of a misdemeanor.

Likewise, one who receives water from a company or
other purveyor of water is not to use more water than
"good husbandry" requires for his crops (I.C. 5 42-
916).  A person who uses water in excess of his needs
is liable both to the purveyor of water and anyone en-
titled to the excess water who sustained damage from
the former's abuses.

By the same token, the Idaho Supreme Court has said
that there is no vested right to waste or seepage wa-
ter against the paramount owner thereof.  This con-
cerns the ownership of water "taken from the stream
of the owner of the land or reservoir, etc." from
which the water afterwards seeps or wastes (Sebern v.
Moore. 44 Idaho 410, 258 P. 176, 1927).   An owner of
land "can use all his water, waste none of it, or
apply it on other lands and thereby prevent its flow
into the ditch" of another party who had been making
use of the waste water with the permission of the own-
er of the land from which it flowed so long as there
is no evidence of a grant of the water to the user
(Crawford v.  Inglin. 44 Idaho 663,  258 P. 541, 1927).

The Supreme Court of Idaho has adhered to the princi-
ple that no appropriator should be  required to waste
water for the benefit of another (Application of
Boyer. 73 Idaho 152, 248 P.2d 540,  1952).  ThTTourt
has stated its view of the rights of junior appropri-
ators as follows:
     It is axiomatic^that no appropriator can compel
     another appropmator to continue the waste of
     water whereby the former may benefit.   If, by
     a different method of irrigation the upper own-
     er may so utilize his water that it will all
     be consumed in transpiration and consumptive
     use, and thus no waste water returns by,seep-
     age or percolation to the river, no other ap-
     propriator, from the evidence  herein,  could
     complain.  Instead of changing the method of
     use, respondent accomplishes the same result
     by changing the point of diversion. The rule
     that a junior appropriator has the right to a
     continuation of stream conditions as they were
     at the time he made his appropriation cannot
     compel respondent to waste his water (Ibid.).

It is clear that the general policy in Idaho against
the waste of water governs to the point that junior
appropriators are entitled to conditions of the
stream substantially as they were when their appropri-
ations were made.  The exceptions to this rule clear-
ly indicate the preference of Idaho for one who saves
water by ceasing to waste it or ceasing to excessive-
ly apply it.  As a part of such preference, the  indi-
vidual is to be permitted to capture the water and
re-use it.

The Supreme Court has recently decided another twist
to the rights of appropriators and wastage of water
issue.  The question arose in Gilbert v. Smith (552
P.2d 1220, Idaho, 1976) whether an upstream junior
could assert a claim to water needed to satisfy  a
downstream senior by maintaining that he, the junior,
prevented the "wasting" of water lost in the natural
channel by diverting it upstream and placing it  to
beneficial use.  Several other key issues were decided
in the case (see the next section on abandonment and
forfeiture), but regarding waste, the court held:
     As a rule, the law of water rights in this
     state embodies a policy against the waste ,
     of irrigation water.  Ward v. Kidd, 87 Idaho
     216, 392 P.2d 183 (1964).  Such policy is
     not to be construed, however, so as to permit
     an upstream junior appropriator to interfere
     with the water right of a downstream senior
     appropriator so long as the water flowing
     in its natural channels would reach the
     point of downstream diversion.  ... We
     agree that if due to seepage, evaporation,
     channel absorption or other conditions beyond
     the control of the appropriator the water in
     the stream will not reach the point of the
     prior appropriator in sufficient quantity
     for him to apply it to beneficial use, then
     a junior appropriator whose diversion point
     is higher on the stream may divert the
     water. . . . (Ibid., p. 1224).

4.2.5  Manner in Which Rights Hay Be Adversely
       Affected

Water rights in Idaho can be lost by abandonment,  for-
feiture, adverse possession, estoppel and condemnation.
Each will be discussed in turn.

Abandonment—
In reviewing the law of abandonment, the Idaho Supreme
Court in August, 1976, stated:
     Abandonment is a comron law concept involving
     the occurrence of an intention to abandon and
     the actual relinquishment or surrender of the
     water right. ... It is not dependent neces-
     sarily upon the length of time but upon the
     essential element of intent.  Carrington v.
     Crandall.65 Idaho 525, 147 P.2d (1009); Union
     Grain 8 Elevator Co. v. McCammon Ditch Co..
     41 Idaho 216, 240 P. 443 (1925); . . . Such
     intent may be evidenced by non-use for a
     substantial period of time but mere non-use
     is not per se abandonment. . .  . (Gilbert v.
     Smith. 552 P.2d 1220 at 1223, Idaho, 1976).

To meet the requirements of abandonment there must be
a non-use of the water coupled with an intent to for-
sake the right (Joyce v. Murphy Land and Irr. Co.,
35 Idaho 549, 208 P. 241, 1922).  This intent must be
proved by clear and convincing evidence and cannot be
inferred from circumstances beyond the control of  the
user (Perry v. Reynolds. 63 Idaho 457, 122 P.2d  508,
1942; Hodges v. Trail Creek Irr. Co.. 78 Idaho 10,
297 P.2d 525, 1956) nor be characterized as permissive
(Gilbert v. Smith. 552 P.2d 1220, Idaho, 1976).

Abandonment has been upheld against   one who failed
to exercise his water right for 25 years (Knutson  v.
Muggins. 62 Ida. 662, 115 P.2d 421, 1941).   The  court
also held in Chill v. Jarvis (50 Ida. 531,  298 P.  373,

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 1931)  that  failure  to  pay  installments  on  defendant's
 ranch  and non-exercise of  the water rights clearly
 implied  the abandonment of the  right.

 Forfeiture--
 When a user has  failed to  apply his water  to  a  bene-
 ficial use  for a five-year period  his right to  use
 such water  may be lost and forfeited (I.C.  §  42-222).
 The water reverts to the State  and once again becomes
 subject  to  appropriation.   Upon proper  showing  before
 the Director of  the Department  of  Water Resources wa-
 ter may  be  declared to have been forfeited if it has
 not been applied to beneficial  use for  the term of
 five years.

 The Director of  the Department  of  Water Resources is
 authorized  to extend the time for  forfeiture  of title
 for non-use for  a period not to exceed  five additional
 years  (I.C. § 42-222).   Forfeitures are not favored by
 the courts and the  burden  of establishing  non-use is
 on the plaintiff in these  cases and must be estab-
 lished by clear  and convincing  evidence (Graham v.
 Leek.  65 Idaho 279, 144  P.2d 475,  1943).   In  Zezi v.
 Lightfoot (57 Idaho 707, 68 P.2d 50, 1937)  the  court
 held that even though  there had been non-use  for a
 period of five years there  would be no  forfeiture if
 the owner had resumed  the  use of the water before an
 appropriation by a  third party.  The Supreme  Court
 also recently (Oct. 6,  1976) decided a  case,  however,
 in which the potential non-use  of  water for the stat-
 utory  period could  have been easily documented  and a
 valuable right lost (Olson  v. Bedke. 555 P.2d 156,
 1976).   A lessee, under a  ten-year farm lease,  failed
 to exercise the  water  rights appurtenant to the
 leased property.   The  leaser attempted  to  terminate
 the lease because the  lessee failed to  "farm  the prem-
 ises in a good and  farmer-like  manner."  The  Supreme
 Court  held that  since  the water  right is real property
 it could be protected  by injunction, mandamus or pro-
 hibition when threatened by irreparable  injury.   The
 lower court was of  the opinion  that the  leaser's prop-
 erty interests were protected from  forfeiture under a
 statutory provision that provides,   "So  long as  a duly
 elected water-master is charged with the administration
 of waters within a water district,   no water user with-
 in such district can adversely possess the  right of
 any other user"  (I.C.   § 42-607).  However,  the  Supreme
 Court reversed and held the statute applies only to
 loss of water rights by adverse possessions and does
 not affect the potential loss under the forfeiture
 statute (Olson v. Bedke, 555 P.2d 156 at 160, 1976).
 It went on to say if lessee had failed to use the wa-
 ter rights of leasor,  and leaser did nothing, "the
 unused water rights could be forfeited by non-use
 prior to the end of the lease,  to the substantial  in-
jury of the reversionary interest"   (Ibid.).

There seems  to be an element of adverse use in the
 forfeiture argument.  It has been held that even
where there  was non-use for five years there was no
 forfeiture of the water right when  the owner of  the
 right resumed the use  of the water  prior to its  appro-
priation  to  a third party (Zezi  v.  Lightfoot,  57 Idaho
 707,  68 P.2d 50,  1937).

Loss  through abandonment and forfeiture had been com-
plicated  by  wording of the  statutory provision for
loss  by non-use.   The  former statutory wording was
the water "shall  be lost and abandoned"  by failure  to
apply it  for the  prescribed period  of years.  The
courts  regularly  applied the word "abandonment"  and
often cited  the statute.  Finally in 1944,  the court
clearly recognized the  distinction  between abandonment
and statutory forfeiture (Carrington v.  Crandall,  65
Idaho 525,  147  P.2d 1009, 1944). This  position  was
 further reinforced  in  Gilbert v. Smith (552 P.2d 1220,
 1976) when  the  court acknowledged their failure to
 indicate the  difference  in  the past, but:
     Nevertheless,  we  deem  it essential for this
     and other  future  users of a similar nature
     to keep  the  concepts of abandonment and
     statutory  forfeiture,  and their application,
     distinct (Ibid.,  at 1223).
 The revision  in Idaho  states that the water shall be
 "lost and forfeited" by  the failure to apply water to
 a beneficial  use  for a period of five years (I.C. §
 42-222).

 Water rights  may  also  be lost through forfeiture, if
 the right holder  joined  in  an adjudication proceeding
 fails to appear and submit  proof of claim to the
 right (I.C. % 42-1411).

 Adverse Possession--
 A water user  can  lose  a  water right and another party
 gain the title  to that water under the doctrine of
 adverse possession  (Brossard v. Morgan. 7 Idaho 215,
 61  P. 1031, 1900).  In order to acquire a right by ad-
 verse possession, it must be shown that the use was
 open and notorious, adverse and hostile, uninterrupted
 and continuous, exclusive of the use of the rightful
 owner,  and  under  a  claim of right by the adverse user
 for a period  of five years  (Harris v. Chapman. 51
 Idaho 283,  5  P.2d 733, 1931).  The evidence must be
 clear and convincing that the adverse user has estab-
 lished  his  right  (Loosli v. Hesseman, 66 Idaho 469,
 162 P.2d 393, 1945J:

 The law,  however, does not  favor the loss of water
 right to another  by adverse use and has made it diffi-
 cult, if not  impossible, to pass title by this method.
 Two aspects of  the  law compound the adverse user's
 claim.   The first is the application of the basic con-
 cepts of prior  appropriation and beneficial use re-
 quirements.   Two  cases have held:
     ... a  prescriptive right to the use of
     water cannot be acquired by the use thereof
     with the consent  or permission of the own-
     ers, and as  under the  law of this state it
     is  made  a  misdemeanor  for one who has the
     right to the use  of water to waste it, and
     the  law  requires  him to pernrit it to flow
     down the stream in  case his necessities for
     the  time do  not require its use, .  . .
     (Hall v. Blackman.  8 Idaho 272 at 282, 68
     P.   19, 1902; Mountain Home Irrigation Dist.
     v.   Duffy.  79 Idaho  435 at 443, 319 P.2d
     965, 1957).
Thus, if  the  rightful  owner does not need the water,
a downstream  junior appropriator can place a call  for
the water under his right.

The second constraint  in the law which must be en-
countered is  the  five-year non-use statutory forfeit-
ure provision.  If the rightful owner fails to exer-
cise his  right  for five years, the water that could
be claimed under  that  right reverts back to the state
for distribution  to other water users or allocation to
an applicant.    In addition, the legislature has pro-
vided that no water user  within a water district
whose water rights are being administered by a water
master will  lose  his rights by adverse use claims  of
another (I.C.  §  42-607).

Condemnation--
The Idaho Constitution (Idaho Const.  Art XV,  Section
3) requires  that  in the event a preference is  exer-
cised the owner divested of his rights will  be fully
compensated.  In addition,  irrigation districts are
given the power  of eminent  domain (I.C.  §  43-908)  and

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eminent domain statute (I.C.  § 7-701)  which is  appli-
cable to real property is also applicable to water
rights.

Estoppel —
Estoppel is a doctrine by which one acting in good
faith carries on certain activities known to another
can preclude the latter from asserting a claim  con-
trary to activities.

Enforcement of Beneficial Use or Waste Concepts—
An appropriator is limited to the quantity of water
specified in his permit that is being  beneficially
used and any unused water is subject to forfeiture
(I.C. § 42-222).  Even though the term "beneficial
use" per se is not statutorily defined in Idaho an
appropriation is not valid unless it is pursuant to  a
beneficial use (I.C.  § 42-104).  Idaho is a state
deeply involved in agriculture and is  concerned about
protecting its base in this  sector of  the economy.
Thus, when enforcement of beneficial use has been
raised, the courts have held that although conserva-
tion of water is a wise public policy, and an appro-
priator is acting ;against  public policy if he takes
more water than necessary to irrigate  his land  (Coul-
son v. Aberdeen Springfield Canal Co., 39 Idaho 320,
227 P. 29, 1924), an appropriator should not limit his
water right to his minimum needs (Caldwell v. Twin
Falls Salmon River Land & Water Co., 225 'F.~584. Dist.
Ct. Idaho, 1915).So long as an irrigator uses rea-
sonable fanning methods, he "is not required to use
methods which are costly in labor and  money simply be-
cause some waste can be saved thereby" (Twin Falls
Land and Water Co. v. Twin Falls Canal Co., 7 F. "Supp.
238 at 252, Oist. Ct., Ida., 1933).

But earlier, the Supreme Court of Idaho said as to the
application of water that economy must be required and
demanded (Farmers' Cooperative Ditch Co. v. Riverside
Irrigation Dist., 16 Idaho 525, 102 P. 481. 1909).
The court went on to say:
     . . . Water users should not be allowed an
     excessive quantity of water to compensate
     for and counterbalance their neglect or in-
     dolence in the preparation of their lands
     for the successful  and economical applica-
     tion of the water.   One farmer, although he
     has a superior water right, should not be
     allowed to waste enough water in  the irriga-
     tion of his land to supply both him and his
     neighbor, simply because his land is not
     adequately prepared for the economical appli-
     cation of the watec (Quoted in Vineyard Land
     and Stock Co. v. Twin Falls Salmon River Land
     & Water Co. et a!., 245 F. 9 at 22, C.C.A.:
     9th C., 1917).*

In most instances, the water users are concerned about
the quantity of water used by those more senior in
priority or upstream from their diversion point. • But
water quality is also of particular concern when an
upstream discharge degrades the quality of water to
the point of impairing a downstream appropriator1 s
use.  Case law is limited in Idaho on  this issue, and
no case was found involving an upstream irrigator
diminishing the quality of water through his return
flows to the detriment of a downstream irrigator. The
court has held, however, that while a  mining operation
may necessarily cause some contamination to a  stream,
the degradation cannot inflict substantial  injury  upon
another user of the water, in this case agricultural-
ists Ravndale v. Northfork Placers. 91  P.2d 368,  Idaho
1939).   It tempered its holding by saying further  that
an agriculturalist may not captiously complain of  a
reasonable use of water by a miner upstream because  it
pollutes and makes the water slightly less  desirable
or causes slight inconvenience or occasional  annoyance,
"or even some degree of interference, so long  as such
do no substantial damage" (Ibid., p. 372).

4.2.6  Legal Incentives and Disincentives for More
Legal
Effici
3This case concerns water use in Nevada and Idaho for
irrigation, with the upstream Nevada defendant's flood
irrigating meadows and the downstream Idaho plaintiff
irrigating a project constructed under the Carey Act.
          icientWater Use Practices

Irrigation Return Flow—
Irrigation return flows occur through deep percolation
from the over-application of water to the land,  seep-
age from conveyance systems and tail  water run-off.
Ditches can be constructed for capturing and utilizing
seepage, waste or spring water and are governed  by the
same rules as apply to appropriation  of flowing
streams (I.C. § 42-107).  Under this  statute, the
Supreme Court has concluded that surface waste and
seepage waters may be appropriated:
     subject to the right of the owner to cease
     wasting it or in good faith, to  change the
     place or manner of wasting it, or to recap-
     ture it, so long as he applied it to bene-
     ficial use (Sebern v. Moore. 44  Idaho 410,
     258 P. 176, 1927).

A downstream appropriator is entitled to have flow
patterns and stream conditions maintained substantial-
ly as they were at the time of his appropriation.  Any
change by an upstream user which would reduce or alter
the return flow pattern is prohibited (Cartier v.
Buck. 9 Idaho 571, 75 P. 612, 1904).   However, if the
upstream practice is wasteful then the lower appropri-
ator cannot require that such a use be maintained
(Colthorp v. Mountain Home Irr. Dist.. 66 Idaho  173,
157 P.2d 1005, 1945).

The question of the right of the United States to the
use of return water arising from one  of its projects
constructed under the auspices of the Bureau of
Reclamation was decided in accordance with these prin-
ciples.  The United States contended  that substantial-
ly all of the water in the creek on which the defend-
ant had made an appropriation, during the irrigation
season, came from government canals by way of surface
waste and seepage of the percolating  waters front irri-
gated fields.  The government argued  that it has a
superior right to capture this water and apply it to
other beneficial uses on the project.  The Federal
Court stated that the point involved  was scarcely open
to controversy, for:
     one, who by the expenditure of money and labor
     diverts appropriable water from a stream, and
     thus makes it available for fruitful purposes
     is entitled to its exclusive control for so
     long as he is able and willing to apply it to
     beneficial uses.  And such a right extends  to
     what is commonly known as wastage from surface
     run-off and deep percolation necessarily inci-
     dent to practical irrigation.  Consideration
     to both public policy and natural justice
     strongly supports such a rule.  Nor is it
     essential to his control that the appropriator
     maintain continuous actual possession of such
     water, so long as he does not abandon it or
     forfeit it by failure to use, he may assert
     his rights.  It is not necessary to confine
     it upon his own land, or convey it in an
                                                      M6

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     artificial  conduit.   It is requisite, of
     course, that he be able to identify it.
     But subject to that limitation, he may
     conduct it  through natural channels and
     may even commingle it or suffer it to
     commingle with other waters.   In short,
     the rights  of an appropriator in these
     respects are not affected by the fact that
     the water has once been used  (United States
     v.  Hagan. 276 Fed.  41, D.  Idaho, T9Z17.

The Federal  Court in this decision,  referred to the
Idaho statute previously mentioned providing that
ditches  can  be constructed for the purpose of utiliz-
ing seepage  and  waste streams (I.e.  i 42-107).  It
stated that  this statute neither expressly nor by im-
plication authorized citizens to construct ditches to
utilize  seepage  or waste water, rightfully under the
control  of another any more than it  authorized con-
struction of ditches to utilize springs already appro-
priated  by another, or the water of  a running stream.

The right for capture and use of return flows is not
an absolute  unqualified right,  however.  In two cases
the claims of junior appropriators under this doctrine
have been denied (Hutchins, 1968,  p.  70).   In each
case the return  flows from the  upper lands were so ex-
cessive  as to impute wastefulness  rather than bene-
ficial  use to the exercise of the  original appropri-
ative right.   In both cases the denial  of the claim
of the lower appropriator was premised upon the prin-
ciples relating  to the appropriation of waste water.

In one case,  the action  was brought  to recover damages
because  of the alleged deprivation of seepage waters
from the upper tract which had  been  claimed by the
owner of the lower tract.   This deprivation resulted
from a change in the point of diversion and place of
use of water on  the upper tract (Colthorp  v. Mountain
Home Irr.  Pi St.. 66 Idaho 173,  157 P.2d 1005, 1945).
The plaintiff alleged that 75%  of  water applied to the
upper tract  seeped back  into the stream and was,
therefore, subject to subsequent diversion.   It was
further  alleged  that long use of the water on the low-
er tract constituted an  appropriative right to its use
and that the  change of use from the  upper  tract to
other lands  infringed on  the right of the  lower owner.
The Idaho  Supreme Court  held that  the statutory right
to appropriate seepage water was subject to the right
of the owner to  cease wasting it or  to  change the
place or manner  of its use.   It further held that to
prevent  a  change in the  point of diversion and place
of use of  water, the injury must be  to  a water right,
but that the  plaintiff did not  plead that  the change
would injure  the water,  or the  right decreed to the
lower ranch.   Further, the upstream  owner  could not be
required to  continue to  irrigate the upper ranch,  nor
to continue  to waste 75%  of the decreed water to the
benefit  of the plaintiff.   The  upper owner could not
be enjoined  from ceasing to waste the decreed water in
making beneficial  use of  it.

In the second case,  the  court reiterated that no ap-
propriator is  required to  waste water for  the benefit
of another and if he can  utilize his  water so that all
would be "consumed in transpiration  and consumptive
use," the  downstream junior has no right to complain
(Application  of  Boyer, 73  Idaho 152  at  163,  243 P.2d
540, 1952).

Salvaged and  Developed Waters—
A few cases  in Idaho recognize  the right of one who
salvages water to  claim an appropriation of such wa-
ter.  The  burden of proof rests upon  the claimant  of
these rights  to  prove that the  water salvaged had  not,
prior to salvage, been appropriated or used by others
with prior rights (Hill and Gauchay v. Green, 47
Idaho 157, 274 P. 110, 1928).In Reno v. Richards
(32 Idaho 1, 178 P. 81, 1918) the claim was made that
moving obstructions from the stream channel, including
brush and fallen logs, and excavating channels from
sandbars and other obstructions for a considerable
distance, the flow of the stream had been augmented.
The Supreme Court of Idaho held that there was no in-
centive for the savings of water unless the persons
who accomplished the task reaped the benefits of their
efforts and that the amount of water saved should in-
ure to their benefit.  Consequently, since the trial
court had found that the party had effected a sub-
stantial increase in the flow of the tributary, it
became the duty of the trial court to define the in-
crease of the flow for the use of the plaintiffs.

It was found in a later case that an additional three
second feet of water in a tributary creek had been
saved and put to use.  Prior to the savings, all such
waters had been lost in the channel of the creek and
had not reached the main stream by subflow or other
means.  Accordingly, the three second feet saved was
awarded to the parties who had made the savings (Hill
and Gauchay v. Green. 47 Idaho 157, 274 P. 110, 1928)".

As a final example,  a company, which constructed a
pipeline approximately seven miles above the point of
diversion of a number of individuals, allowed the in-
dividual appropriators lower on the stream to divert
their water to the pipeline.  Evidence showed that a
loss of 10? in the stream occurred prior to building
the pipeline between the point of the pipeline con-
struction and the appropriator's previous point of
diversion from the mouth of the stream.  The court
held that the company had materially augmented the
amount of water available from the stream for bene-
ficial use and should therefore be decreed a right to
the quantity of water formerly lost from the creek.
It further held that this right should have greater
priority than the rights of the other parties to the
litigation (Basinger v. Taylor, 36 Idaho 591, 211 P.
1085, 1922).

Idaho has an interesting provision which encourages
construction of wells to drain land or capture water
lost from irrigation (I.C. § 42-228).  This provision
allowed the reuse of the captured waters providing the
well drillers comply with section 42-238, Idaho Code,
regarding licensing and compliance with well construc-
tion standards.  Salvaged waters are distinguished
from developed waters.  Developed waters are those
waters which, in their natural state, are not a part
of a watercourse and are not subject to existing
rights.  The party developing the water is entitled
to use such waters, senior to all other water users
(Nampa and Meridian Irr. Dist. v. Welsh, 52 Idaho 73,
157 P.2d 617, 1932).So where a person develops the
water use potential of a spring that does not flow
into a stream and is not shown to be connected to a
ground water source, he is entitled to the senior use
of those waters (St. John Irrigation Co. v. Danforth,
50 Idaho 513, 298 P. 365, 1931).  Likewise, an irri-
gation district that augments its supply through
drains collecting water which do not affect surface
flows or ground water sources, can claim the developed
waters (Nampa and Meridian Irr.  Dist. v. Welsh. 52
Idaho 279, 15 P.2d 617, 1932).

Although these rules appear clear-cut, their applica-
tion as a general proposition would depend upon the
facts in each case.  The State,  however, is cognizant
of the need to induce more efficient practices among
water users, and has recommended that the Soil

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Conservation Service and other federal  agencies
identify possibilities and effects  of reorganization
or renovation of existing and proposed canal  systems
to obtain more efficient water use  (Interim Report,
1972,  Recommendation 26, p. 257).   In addition,  a  re-
cent study was concluded for the State incentive pro-
grams  for improved water use efficiency have been
analyzed and discussed (Incentives, 1976).

Provisions for Transfer of Hater Rights and
Diversions—
Idaho  law provides that a person entitled to use wa-
ter, or a person owning any land to which water  has
been made appurtenant, may change the point of diver-
sion or the place of use of the water (or both)  if
the water rights of others are not injured by the
change (I.C. 5 42-108 and 42-222).   The critical
point  of the statute is that injury may not occur  to
the water right of another.  The rule with respect to
the right to make a change has been stated:
     The appropriator of water . .  . may change
     the place of diversion if the rights acquired
     by others are not thereby interfered with by
     the change and no injury results to other
     appropriaters thereby from ... A subse-
     quent appropriator has a vested right as
     against his senior to insist upon a contin-
     uance of the conditions that existed at the
     time he made his appropriation, provided
     a change would injure a subsequent appropri-
     ator has no right to change the point of
     diversion when it will in any manner injure
     a subsequent appropriator (Bennett v.  Nourse,
     22 Idaho 249, 125 P. 1038, W\TT.

One of the common problems with changing either  a
point of diversion or a place of use is that other
appropriators are deprived of the benefit of return
flows  from the lands of the appropriator who seeks to
make the change.  The downstream appropriator is in a
position of considerable strength in Idaho.  Many  of
the decisions which have been registered are to  the
effect that a junior appropriator initiates a water
right on the strength of the existence of return  flows
to the stream channel and obtains the benefit of such
return flows in exercising a junior right.   The  jun-
ior appropriator is then entitled to a continuance of
the conditions wJSich existed when the appropriation
was made.  The appropriator may enjoin a senior  ap-
propriator from the taking the waters to a place from
which the seepage and waste will not reach the junior
appropriator's diversion (Hall v.  Blackman, 8 Idaho
272, 68 P. 19, 1902).
     There are few decisions in Idaho involving
changes in the purpose of use of appropriated water.
The principles regarding the change of a place of use
or a point of diversion govern these cases.  In  one
case,  for example, the prior appropriator of water
was using it to operate a sawmill.   The appropriator
attempted to transfer his appropriation to others  up-
stream for irrigation purposes.  This attempt to
change the use of the water as well as the place of
use was denied as constituting a change from a non-
consumptive use to a consumptive use.  This in itself
would have been injurious to downstream users.  The
attempt to change the use and point of diversion up-
stream above the diversions of junior appropriators
would have defeated the rights of such appropriators.
So it was a combination of the change of use, place
of use and purpose of use that resulted in denial  of
the petition (Washington State Sugar Co. y. Goodrick.
27 Idaho 26, 147 P. 1073, 1915).

For a change in the place, period, or nature of use
or other substantial changes in method of diversion or
proposed use of water, the permit holder must make
application to the Department of Water Resources  (I.C.
§ 42-211).

As a real property right, a water right can be trans-
ferred, sold, mortgaged or otherwise treated like real
property in its disposition.  Current recordation of
water is a major void in most western states but
Idaho does have a voluntary system.   Water rights are
tabulated by a permit number assigned the right when
an application is received and the name of the right
holder recorded.  However, the ownership is kept  cur-
rent by recording transfers to others only when re-
quested with the burden for requesting the change of
ownership upon the purchase (Letter dated March 4,
1975, from Dept. of Water Resources to author).  The
other types of transfers are recorded according to
the requirements outlined above.

4.2.7  Water Disposal and Drainage

Diffused waters are those waters from rain and melt-
ing snow, which are diffused over the surface of the
ground and are not part of any natural stream or body
of water (Washington County Irr. Dist. v. Talbay,
55 Idaho 382, 43 P.2d 943, 1935).In Harper v.
Johannesen (84 Idaho 278, 371 P.2d 842, 1962), the
Idaho Supreme Court stated that an upland owner has
an easement to allow diffused surface water to drain
naturally upon lower lands if the acts of the upland
owner do not increase the burden on the lower land.
As such, he has the right to take protective measures
to prevent damage to his land from floodwaters but
cannot increase the burden on other owners (Ibid.).
This is commonly referred to as the civil law or nat-
ural flow doctrine of drainage.

A landowner is entitled to capture the natural pre-
cipitation on his own land if it is applied to a
beneficial use (Franklin Cub River Pumping v.
LeFevre. 79 Idaho 107, 311 P.2d 763, 1957).

4.3  ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS

4.3.1  State Water Agencies

As stated in section 4.1, the formation of a water
resources agency was called for under a constitution-
al amendment in 1964, with the subsequent establish-
ment of the Water Resources Board and Department of
Water Administration in 1965.  The water agencies
were reorganized in 1974 in an effort to place all
water quantity functions under one agency, the
Department of Water Resources.

General administrative supervision is vested with the
Director of the Department of Water Resources.  The
Department is divided into three divisions:  admin-
istration, operations, and planning.  Generally, the
Administrative Division handles personnel matters,
legal activities, water policy, financial matters and
supervision.  The Operations Division is in charge of
water rights administration and adjudication assist-
ance, with construction and licensing of well drill-
ers, review and approval of formation of irrigation
districts and supervision over distribution of water.
The Planning Division administers contracts, conducts
studies,  formulates river basins and state water
plans and provides technical advice (Annual Report,
1975).

All appropriations under the statutory method must be
initiated by filing an application to appropriate
with the  Director (I.C. § 42-202).
                                                      148

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 Upon  receipt of  the application,  the Department of
 Water Resources  shall prepare a notice specifying the
 number of the  application, the date of filing, the
 name  and  post  office address of the applicant, the
 source of the  water, the amount of water to be appro-
 priated,  the nature of the proposed use, the approxi-
 mate  location  of the point of diversion and point of
 use.   This  notice will include the statement that any
 protests  against the approval of  the application
 should be filed  with the Department within ten days of
 the last  day of  publication of this notice.  The no-
 tice  is to  be  printed in a newspaper of general cir-
 culation  for two successive weeks.  If the application
 is approved, the Department requires that actual con-
 struction work and the application of the water to
 full  beneficial  use be completed  within five years
 from  the  date  of the approval.  This time limit may be
 lessened  or extended at the discretion of the Depart-
 ment,  depending  on the nature of  the project (I.e. §
 42-204).

 The Director is  charged with the  responsibility of ap-
 proving applications for appropriation, changes of a
 point  of  diversion, and  changes  of a place of use
 (I.C.  § 42-202,  42-217,  42-222).  To expedite these
 responsibilities  the state has been divided into water
 divisions by statute.  The Department of Water Re-
 sources is  authorized to further  subdivide the state
 into water  districts for purposes of administration
 (I.C.  5 42-601,  42-604).  For these districts to have
 supervisory powers over the waters, it is necessary
 that the  appropriation be adjudicated by the court
 (I.C.  § 42-604;  see also Marsters v. United States,
 236 Fed.  663,  C.C.A. 9th, 1916).

 Each of these  districts is supervised by a water-master
 (I.C.  5 42-605).  The water-master is required by
 statute,  under the direction of the Department of Wa-
 ter Resources, to close the headgates of ditches di-
 verting from streams or other sources to supply the
 rights of others  in time of scarcity.  The Supreme
 Court  of  Idaho has held that it is incumbent upon the
 water-master during a scarcity of water to treat an
 unadjudicated water right as an inferior to a decreed
 water  right regardless of the time at which the un-
 decreed right was initiated by the application and
 permit (Big Wood Canal Co. v.  Chapman. 45 Idaho 380,
 263 P. 45,  1927).

 The Director of  the Department of Water Resources also
 has jurisdiction over ground water administration in
 Idaho.  In addition to being authorized to require
 proper measuring devices and control structures on
wells, the  Director may administer various rights in
 the available water supply.   This includes the author-
 ity to make an administrative determination of con-
 flicting claims between surface and ground water users
 (I.C.   § 42-237(a) to 42-237(e)).

The Water Resources Board was  created to coordinate
 and integrate a multiple-use water resources  policy
within the State.  Its powers  include  the power to
 conduct studies and investigations to  formulate and
 implement a statewide water plan.   The board  can also
 construct and operate water conservation and  develop-
ment projects, appropriate water, protect Idaho's wa-
ter from diversion outside the State and can initiate
judicial proceedings for the adjudication of  water
 rights (I.C. § 42-1734,  42-1739).

4.3.2  Judicial Bodies

Any person aggrieved by a director's decision  can ap-
peal  to the district court (I.C.  § 42-204).   Suit may
be filed in district court to adjudicate rights  in a
water source.  Idaho has no specially designated water
courts.

4.3.3  Water Users and Their Organizational Structure

Individuals and Private Companies--
Section 42-202 allows any person, association or cor-
poration to acquire the right to use waters benefi-
cially. To insure that water users are facilitated in
making the most effective use of their water and that
with the right to use water there is a duty to use it
appropriately, the Idaho legislature has adopted nu-
merous provisions providing for guidelines and re-
sponsibilities of water purveyors and users.  By stat-
ute, those owning or controlling any ditch, canal or
lateral have a duty to appoint a superintendent or
watermaster to measure the water to those issuing from
the delivery works, and such distribution system is
referred to as a water district (I.C. § 42-901).  It
is further the duty of any person, association or cor-
poration delivering or distributing water to provide
necessary gates and measuring devices (I.C. § 42-903),
to deliver at some convenient point (I.C. § 42-905),
and when under contract of sale or rental, to deliver
upon proper demand being made (I.C. § 42-912).

If three or more people receive water from a canal or
reservoir at the same point and convey it to their
lands through common lateral, the users shall consti-
tute a water users' association (I.C. § 42-4301) with
responsibility to improve and maintain their ditches,
and assess the users for costs (I.C. § 42-1303).  If
a user fails to pay the assessment the association can
refuse delivery of water to him (I.C. 5 42-1305).
Others owning or controlling ditches, canals, or con-
duits have a duty to maintain the conveyance works
(I.C. §§ 42-1202 and 1203), and prevent injury or
damage to others from such structures (I.C. § 42-1204).

Water users have two specific forms of liability that
may be imposed.  If one uses more water than good hus-
bandry requires for his particular uses, he may be
liable to the purveyor of water for the value of the
water used in excess and to others damaged as a result
of their not receiving the water, to the extent of
their damage (I.C. § 42-916).  Also, if one, without
the consent of the watermaster, diverts water or opens
or shuts any gates with the intent to divert water and
deprives another of the use of this water when that
person is entitled to the use, or cuts, damages or
destroys any conveyance works, is liable in a civil
action to any person injured for three times the ac-
tual damages sustained (I.C.  § 42-902).

As for irrigation companies,  they are not bound to
maintain conditions resulting in the waste of water
from any part of their systems for the benefit of
individuals who have been making use of such water
(Twin Falls Canal  Co.  v.  Damman, 277 Fed. 331, D.
Idaho, 1920).

Districts—
Water related districts which can be created in Idaho
are drainage districts (I.C.  §§ 42-2901 to 2980),
flood control  districts (I.C. i§ 42-3101  to 3124),
water and sewer districts (I.C. §§  42-3201 to 3227),
and irrigation districts (I.C.  §§ 43-101  to 2112).
The board of commissioners of a drainage district can
appropriate waters which have been made available by
the construction of drainage  works  if this will not
impair existing rights (I.C.  §  42-2902).   Section
42-2915 states:
     In determining the amount which each tract
     of land will  be benefited by such proposed
     drainage system the commissioners shall
                                                      149

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      consider the damage done to low land from
      seepage and saturation by irrigation water
      from high land, and the necessity for the
      carrying off of waste water, and such high
      lands shall be considered as being benefited
      to the extent and in the amount that such
      lands are responsible for damage to low
      lands from seepage and saturation by irriga-
      tion water.

 Irrigation districts are corporations with a public
 as opposed to a governmental purpose and function for
 profit.  When a majority of landowners desire to pro-
 vide  for irrigation of their lands they are author-
 ized  to form an irrigation district (I.C. § 43-101).

 Irrigation districts have been confronted with prob-
 lems  concerning waste and seepage waters.  The begin-
 ning  point of the controversy would be the 1952
 statement that:
      it is axiomatic that no appropriator can
      compel any other appropriator to continue
      the waste of water whereby the former may
      benefit (Application of Boyer. 73 Idaho
      152, 248 P.2d 540, 1952; Col thorp v.
      Mountain Home Irrigation District, 66
      Idaho 173, 157 P.2d 1005, 1945).
 It is clear that there is no requirement that the
 waste of water be continued.  The situation that has
 faced irrigation districts is the problem of liability
 for lands inside the district damaged by accumulations
 of seepage and waste waters.  In one case, to avoid
 liability, the directors of an irrigation district
 contracted to supply the seepage and waste water to
 lands outside the district for irrigation purposes
 (Jensen v.  Boise-Kuna Irrigation District, 75 Idaho
 133, 269 P.2d 755, 1954).   The validity of these con-
 tracts was litigated in an action brought against the
 district by the contracting landowners  to recover
 damages for failure to make available agreed amounts
of water.   The Idaho Supreme Court held that the con-
 tracts, which would have been void had they been for
water owned by the district and dedicated to the irri-
gation of district lands,  were valid because the seep-
age and: waste waters did not fall  in that category.

 In another instance, the irrigation district sought to
 compel a landowner who was geographically within the
 district but ligally outside of it, to pay for the use
of water that had seeped onto the 1 andowner's land
 from  the district's canal  and from the land of the
district's landowners.   It was  shown that the district
did not claim any rights to such water by reason of
either intent or attempt to retain  or recapture it.
The Idaho  Supreme Court stated that such  water had be-
come subject to recapture by anyone who could apply it
to beneficial use unless the water, without the inter-
ference of the person capturing it, would have re-
turned to the stream from whence it was appropriated.
This would also be the  case if the  recapture would
not prejudice the rights of any prior appropriator,
since the  district's right to use  the water had not
been asserted.   No charge  may be made or  enforced by
the district {Milner Low Lift Irrigation  District v.
Eagen, 49  Idaho 184, 286 P.  608, 1930), because it
owns nothing to sell.

Liability  to district can  exist for damages  caused by
a dam or conveyance structure breaking  and flooding
private property where  the district is  negligent in
maintaining its  works  (Brizindine  v.  Nampa Meridian
Irrigation District, 548 P.2d 80,  Idaho,  1976).The
above case also reviewed the past decisions  imposing
liability upon districts and recognized that liability
in negligence exists for seepage (Harris  v.  Preston-
Whitney  Irrigation Co., 92 Idaho 398, 443 P.Zd 482,
1968), overflow  (Casey v. Nampa & Meridian Irrigatio
District, 85  Idaho 299, 379 P.2d 409, 1963), and
breakage  (Johnson v. Burley Irrigation District, 78
Idaho 392, 304 P.2d 912, 1956).  It went on to hold
that the  doctrine of res ipsa loquita applies to cre-
ate an inference of negligence or breach of duty.
This doctrine is applicable in situations when (1) the
instrumentality causing the damage was under control
of the defendant and (2) the circumstances were such
that cannon  knowledge and experience would justify the
inference that the accident would not have ordinarily
happened  in  the absence of negligence (Brizindine v.
Hampa Meridian Irrigation District, supra, p. 83).

4.4  POLLUTION CONTROL

Hater Quality—

Water quality control in Idaho is the responsibility
of the Division of Environment, Department of Health
and Welfare.  The Board of Health is authorized to
establish water quality rules and regulations neces-
sary to preserve and enhance the  quality of water
for beneficial uses, to establish effluent quality
rules and to establish a permit system for the dis-
charge of effluents (I.C. § 42-1734).

The Idaho Board of Health adopted rules and regula-
tions for interstate waters of Idaho and for the dis-
posal of sewage and industrial wastes in 1967.  These
standards have been accepted by the Secretary of the
Interior as meeting the requirements of the Water
Quality Act  (Interim State Water Plan, preliminary
report, State of Idaho, Idaho Water Resources Board,
Boise, p. 92, 1972).

Water quality is not generally viewed as a serious
problem in Idaho (Ibid.).  It is recognized, however,
that the problem may come to exist, and; that an op-
portunity exists to maintain water quality and insure
continued opportunities for all water uses.

In Idaho, the dominant philosophy concerning water
resources seerrcs to be one of utilizing the resource
for economic development.  There appears to have been
little environmental protection built into the Idaho
statutes governing the appropriation of water.  This
is reflected by the fact that the people drafting
the interim  report for the state water plan have can-
didly stated that one of the constraints to their
efforts is that they have been limited by time, funds,
and staff in performing the economic, engineering and
environmental analysis necessary to formulate the
plan (Ibid., p. 55).  The lack of both adequate data
and studies associated with water use functions has
hampered the Water Board's efforts, especially in the
environmental areas of water quality, fish and wild-
life and water-based recreation (Ibid.)

REFERENCES

Annual  Report. Idaho Department of Water Resources,
Fiscal Year  1975, Dec.  1975.

Dewsnup, R. L- and D. W.  Jensen,  A Summary- Digest of
State Water Laws, National  Water Commission, Arling-
ton, Va. 22203, 1973.

Hutchins, W.  A., "The Idaho Law of Water Rights,"
Idaho Law Review, Vol.  5, Fall  1968,  No.  1, pp. 1 to
159.
                                                      150

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Incentives for Improved Water-Use Efficiency, by Abt
Associates, Inc., Cambridge,  Mass.,  for  Idaho Dept.
Water Resources,  Boise, Idaho, Aug.  1976.

Interim State Hater Plan Preliminary Report, Idaho
Water Resources Board,  Boise, July 1972.

Irrigation Journal, Survey Issue, Vol. 25,  No. 6,
Nov./Dec. 1975, p.  17.

Proceedings:  Short Course on Legal  Aspects and Re-
sponsibilities for Allocators of Hater Resources,
Idaho Water Resources Institute, University of Idaho,
Moscow, June 1969.

Ralston, D. R. et al.,  Analysis of the Impact of Le-
gal Constraints on Ground-Watej^ Resources^ Devejopjent
in Idaho, Pamphlet #158, Ida¥o BUreaTT o7 MTnes and
Geology, Moscow,  Idaho, Nov.  1974.

State Mater Plan—Part  One:  The Objectives. Idaho
Department of Water Resources, Boise, Idaho, June,
1974.

State Water Plan—Part  Two:  Technical and Support  In-
formation for the Snake River Basins, Idaho Department
of Water Resources, March 1976.

State Water Plan—Part  Two:  Summary Report of Con-
clusions and Recommenations for the Snake River BaTins,
Idaho Department of Water Resources, Boise, March
1976.
                                                      151

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                                              APPENDIX A REPORT 5
                                                     KANSAS
5.1  HISTORICAL BACKGROUND

Water resources are not evenly distributed within the
state of Kansas.  The average annual precipitation is
27 inches (Geraghty, 1973).  It varies, however, from
16 inches in some areas to more than 40 inches in
other areas.  The state's two major rivers are the
Arkansas and Kansas Rivers.  The western third of the
state has immense quantities of ground water.  The
ground water reserves of eastern Kansas are found only
in the alluvial valleys of major streams.  Of the total
82,264 square miles comprising the state, the acres
irrigated have increased from 1,380,000 acres in 1966
to 2,360,000 acres in 1974 (1974 Irrigation Survey,
1974).

The Kansas Supreme Court in early decisions stated
that the riparian doctrine controlled use and enjoy-
ment of the State Water Resources (Shamleffer v.
Council Grove Peerless Hill Co., 18 Kan. 24, 1877;
Emporia v. Soden, 25 Kan. 588, 1881 ; and Clark y.
Amman, 71  Kan. 206, 80 Pac. 571, 1905)."1  IrTT866,
legislation was passed to implement an appropriation
doctrine regarding irrigation (Kansas Laws 1886, ch.
115).  This legislation was subsequently struck down
in Frazell v. Bundley (144 Kan. 84, 58 P.2d 95, 1936).
Clark v. Allaman (71 Kan. 206, 80 Pac. 571, 1905),
decided in 1905, held that prior to 1866 there had
been no recognition of rights t.o use of water by prio-
ritv of possession.

In 1868, the Kansas Legislature declared that "the com-
mon law as modified by constitutional  and statutory law,
judicial decisions, and the conditions and wants of the
people, shall remain in force in aid of the General
Statutes of this state" (Kansas Statutes, §77-109).

Whileearly Kansas decisions recognized the natural
flow theory of riparian rights, the Kansas Supreme
Court adopted the reasonable use theory in  State
ex rel Emery v. Knapp (167 Kan. 546, 207 P.2d 440,
1949).

Legislation was enacted in 1945 which implemented the
appropriation ssstem as the sole means of obtaining
water rights in the state (K.S.A. §§82a-701 to 725).
In 1949, the Kansas Supreme Court upheld the constitu-
tionality of the water code in State ex rel Emery v.
Knapp (State ex rel Emery v.  Knapp, 167 Kan.  546, 207
P.2d 440, 1949).  This legislation was amended in 1957.
Under the amended code, unallocated water was subject
to appropriation and all  prior rights, Whether appro-
priation or riparian, were preserved and protected
(K.S.A. §82a-703).   Those water users  having common
law rights had to be compensated for any damage by
reason of the loss of their rights.  This legislation
also made the administration of water rights the
responsibility of the state.

5.2  SUBSTANTIVE LAW

5.2.1  Property Right in  Water

Kansas statutes state that "all  water within  the state
of Kansas is hereby dedicated to the use of the people
of the state, subject to  the control  and regulation of
the state" (K.S.A.  §82a-702), and that such waters may
be appropriated for beneficial  use {K.S.A.  §82a-703).
         Shurty, Kansas Water Law,  1967,  for a  good
historical  assessment of the law.
Riparian rights are the historical  basis of some uses.
All new uses, however, are appropriative.   The appro-
priatiye right is a usufructuary right, the basis of
which is beneficial use.  Kansas has defined a water
right as:

     any vested right or appropriation right
     under which a person may lawfully divert
     and use water.  It is a real property right
     appurtenant to and severable from the land
     on or in connection with which the water is
     used and such water right passes as an
     appurtenance with a conveyance of the land
     by deed, lease, mortgage, will, or volun-
     tary disposal or by inheritance (K.S.A. §82a-
     701g).

The appropriator is entitled to a continuing right to
the use of appropriated waters, but not beyond that
reasonably required and actually used.

Water flowing in a natural stream is not subject to
private ownership.  Any private rights which do attach
are strictly usufructuary rights to take the water into
physical possession and apply it to a beneficial use.
Private rights of ownership do not attach to the cor-
pus of the water as long as it remains in the stream
(Wallace v. Winfield, 98 Kan. 651,  159 P.11, 1916;
K.S.A. S82a-707).

In Wallace y. Winfield (98 Kan. 651, 159 P.11, 1916),
the Kansas Supreme Court held that one who had not
taken the water from the river nor reduced it to pos-
session had no title to the water and therefore could
not sell it.  In Wood v. Fowler (26 Kan. 682, 40 Am.
Rep. 330, 1882), the court held that waters of a
navigable stream belong to the public and not to the
owner of adjacent riparian land.

5.2.2  Acquisition of Water Rights

Surface Waters—
As of 1945, the sole method of acquiring water rights
has been through the filing of an application for a
permit with the Chief Engineer of the Division of Water
Resources, State Board of Agriculture.  The one excep-
tion to this procedure is the use of water for domestic
purposes (K.S.AJ5 82a-703, 705, 705a, and 703a).  The
Chief Engineer must give approval to the application
if the proposed use will not affect the public inter-
est or impair existing rights.  Furthermore, the Chief
Engineer has the authority to reject the application
or modify it to conformity.  The permit granted by the
Chief Engineer authorizes the applicant to construct
the necessary diversion and distribution works and to
divert a specific quantity of water to be applied to
a beneficial use.  Once diversion and application of
the water to a beneficial use has been completed, the
appropriator must give proof to the administrator that
the appropriation has been perfected in accordance with
the application in order to receive a certificate or
license which evidences the completion of the appropri-
ated right.

The permit application must contain a description of
the nature and extent of the proposed diversion (K.S.A.
§82a-709).  In deciding whether the application will
affect the public interest, the Chief Engineer is to
consider the area, safe yield and recharge rate of the
appropriate water supply, the priority of existing
claims, and the amount of water to  be used (K.S.A.
                                                      152

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 §82a-711).   Each appropriation  is conditioned by the
 fact  that the right  relates to  a specific quantity
 (K.S.A. §82a-711a).   In determining whether a proposed
 application  will impair existing rights, the code de-
 fines impairment to  be the unreasonable raising or
 lowering of  the static level or unreasonable increase
 or  decrease  of the streamflow or the unreasonable
 deterioration of the  water quality at the user's point
 of  diversion beyond a reasonable economic limit (K.S.
 A.  §82a-711).  The Chief Engineer can attach conditions,
 terms and limitations subsequent to approval in order to
 protect the  public interest (K.S.A. §82a-712).  Deci-
 sions of the Chief Engineer are appealable to the dis-
 trict court  (K.S.A. 582a-711).

 Upon  approval of the  application, construction should
 proceed and  water be  applied to a beneficial use with-
 in  a  time determined  by the Chief Engineer (K.S.A.
 §82a-712 to  713).  If cause can be shown, an extension
 of  time may  be granted.  Upon completion of the work,
 the Chief Engineer is notified  and a certificate is
 issued as evidence of a perfected right (K.S.A. 582a-
 714).

 Appropriation may be  applied for by a person, an incor-
 porated group of persons, a corporation, or a govern-
 mental agency or entity.  A person is defined as a
 natural person, partnership, organization, corporation,
 municipality, and agency of the Federal Government.
 An  appropriation is made by a person who obtains a per-
 mit from the Chief Engineer which authorizes him to
 divert and apply a given quantity for a designated
 beneficial use (K.S.A. §82a-701, 709).

 Priority dates from the time of filing the application
 with  the Chief Engineer,  except for domestic uses
 whose priority dates  from the time the application is
 filed or from the time the water is placed to a bene-
 ficial use if an application has not been filed (K.S.
 A.  §82a-707c).

 An  application for a  permit must be filed with the
 Chief Engineer if it  is contemplated to store and use
 water if one is desirous of acquiring and perfecting
 a right.  An application for a  permit must also be
 filed if anyone constructs a dam or other water ob-
 struction or changes  or diminishes the current of any
 stream.

 Currently, springs seem to be encompassed by the lan-
 guage of the water code which reserved the water for
 the people of the state.  Therefore, any right to the
 use of spring waters must be initiated by the filing
 of  an application with the Chief Engineer.

 In  1907, the Kansas Supreme Court held that a spring
 fed by percolating water belonged to the owner of the
 property upon which it arose (Jgbling v. Tuttle. 75
 Kan.  351, 89 Pac.  699, 1907).    In a later case, the
 Court ruled that a stream fed largely from a spring
was controlled by the law governing watercourses as
were  the rights of the owners of the land upon which
 the spring arose and the owners of land abutting the
watercourse  (Weaver y. Beech Aircraft Corp., 180 Kan.
 224,  303 P.2d 159, 1956).Therefore, when a spring
 flows into and forms a watercourse, the rights of the
 parties to the spring are governed by the Taw of
watercourses.

A watercourse has been defined  in Kansas as a channel,
with  bank and bed, and having a flow of water.   The
flow  need not be continuous but must be substantial
 (Hornor v. Baxter Springs.  116  Kan.  288, 226 Pac.  779,
 1924).  The exclusive method of obtaining rights to
unallocated water is under the appropriation doctrine.
Ground Water—
In both 1907 and 1944, the Supreme Court of Kansas
held that percolating waters belonged to the owner  of
the soil and could be used by the owner.  The Court,
thereby, adopted the rule of absolute ownership
(Jobling v. Tuttle. 15 Kan.  351,  89 P.699, 1907;
State ex rel, Peterson v. State Board of Agriculture,
158 Kan. 603, 140 Pac. 2d.604, 1944).  In Emporia v.
Soden (Kan. 588, 1881), the  Court held that the
underflow of a surface stream does not belong to the
overlying landowner.  Ground water is now subject to
administration and control by the state under the
prior appropriation doctrine concepts.

Any person using water from  an artesian well  and
applying it to a beneficial  use is deemed to have
appropriated such water (K.S.A. §42-307).  Provision
is made for the creation of  ground water management
districts to conserve and manage  water resources
(K.S.A. §82a-1020 to 1035).   The  Kansas Ground Water
Exploration and Protection Act of 1945 was enacted  to
provide for the exploration  and protection of ground
water through licensing and  regulating water well
contractors.  The Act was designed to protect the
health and general welfare of Kansas citizens, to
protect ground water resources from waste and poten-
tial pollution and provide data on potential  water
supplies to allow for the economic and efficient uti-
lization of water resources.

The Act of 1945 dedicated all  unallocated water to  the
use of the people of the state and made provision for
the acquisition of rights by the  filing of an appli-
cation for a permit with the Chief Engineer (K.S.A.
§82a-702, 705).  The owner of an  existing right can-
not obtain a vested right to an existing water level.
Protection and preservation  is provided for in the
Act for prior rights, if the water was in a beneficial
use, and for water placed in a beneficial use within
a reasonable time after the  Act was passed (K.S.A.
§82a-701dj.  Impairment is limited to the unreasonable
raising or lowering of the static water level  as con-
sideration of the effect of  new applications upon
existing rights.  Each application is subject to the
express condition that the right  must allow for a
reasonable raising or lowering of the static water
level (K.S.A. §82a-711a).

Kansas law also provides for local  management of
ground water uses.  Specifically:

     It is hereby recognized that a need exists
     for the creation of special  districts for
     the proper management of  the ground water
     resources of the state; for  the conserva-
     tion of ground water resources; for the
     prevention of economic  deterioration; for
     associated endeavors within  the state of
     Kansas through the stabilization of agricul-
     ture; and to secure for Kansas the benefit
     of its fertile soils and favorable location
     with respect to national  and world markets.
     It is the policy of this act to preserve
     basic water use doctrine and to establish
     the right of local  water users to determine
     their destiny with respect to the use of the
     ground water insofar as it does not conflict
     with the basic laws and policies of the state
     of Kansas.  It is,  therefore,  declared that
     in the public interest  it is necessary and
     advisable to permit the establishment of
     ground water management districts  (K.S.A.
     i82a-1020).
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After certification of the description of lands to be
included within a proposed district and before a ground
water management district is organized, a petition must
be circulated within one year by a steering committee
and filed with the Secretary of State (K.S.A.  §82a-
1023).  The petition must be signed by at least 50
eligible voters of the district and must set forth:

     (1) The proposed name of the district, which
     name shall end with the words 'ground water
     management district no. 	.'  It shall be
     the duty of the Secretary of State to assign
     a number to each such district in the order
     in which petitions for organizations are re-
     ceived in his office.
     (2) A description of the lands to be included
     within the proposed district identified by
     township, range and section numbers and frac-
     tions thereof, and other areas as appropriate
     and a map showing the contiguous lands to be
     included in the district.
     (3) A statement of the purposes for which the
     district is to be organized.
     (4) A statement of the number of persons that
     will constitute the elected board of directors
     of the district, which shall be an uneven num-
     ber of not less than three (3) or more than
     fifteen (15).
     (5) The names and addresses of the persons who
     constitute the steering committee.
     (6) A prayer for the organization and incor-
     poration of the district.
     (7) Any other matter deemed essential by the
     steering committee (K.S.A. §32a-1023b).

Prescriptive Water Rights—
"No water rights of any kind may be acquired hereafter
solely by adverse use, adverse possession, or by
estoppel" (K.S.A. §82a-705).

Preferences—
A preference system is established when uses of water
conflict.  Domestic uses have priority followed by
municipal uses, irrigation, industrial  use, recrea-
tional use, and water power use.  The owner of a water
right for an inferior beneficial use can only be de-
prived of the right through condemnation proceedings
(K.S.A. 582a;707b).
            i"
5.2.3  Adjudicating Hater Rights

Kansas does have a statutory procedure for determining
the rights of all persons who were beneficially using
water on or before June 28, 1945 (K.S.A. I82a-704).
The Chief Engineer must conduct studies and investiga-
tions to determine the extent of existing uses.   The
determination is not deemed an adjudication of the
relation between any vested right holders regarding
the operation or exercise of vested rights (K.S.A.
I82a-704).  All users are given notice of the order.
Appeal to the district court is available.  This
statute reads in part that:

     The Chief Engineer or his authorized repre-
     sentatives shall proceed with the necessary
     steps to gather data and other information
     as may be essential  to the proper understand-
     ing and determination of the vested rights of
     all parties using water for beneficial
     purposes other than domestic....

     The Chief Engineer shall then make an order
     determining the rights of all persons making
     beneficial use of water for all  purposes
     other than domestic on or before June 28,
     1945, and the then extent of their uses
     and shall notify all  such water users  as
     to the contents of such order....

     Provided, that no such determination shall
     be deemed an adjudication of the relation
     between any vested right holders with
     respect to the operation or exercise of
     their vested rights (K.S.A. §82a-701).

Under the 1945 Act, a vested right is defined as:

     The right of a person under a common law
     or statutory claim to continue the use of
     water having actually been applied to  any
     beneficial use, including domestic use,
     on or before June 28, 1945, to the extent
     of the maximum quantity and rate of diver-
     sion for the beneficial use made thereof,
     and shall include the right to take and
     use water for beneficial purposes where a
     person is engaged in the construction  of
     works for the actual  application of water
     to a beneficial use of June 28, 1945,  pro-
     vided such use within a reasonable time
     thereafter by such persons, his heirs,
     successors, or assigns.  Such a right
     does not include, however, those common
     law claims under which a person has not
     applied water to any beneficial use with-
     in the periods of time set out in this
     subsection (K.S.A. §82a-701d).

In Williams v. City of Wichita (190 Kan. 317,
374 R.2d 578, 1962), the Supreme Court of Kansas
stated that the legislature can define the  extent  of
vested rights to common law users.  Therefore, even
though riparian rights are given protection by law,
such rights are limited by beneficial use.

5.2.4  Conditions of Use

Beneficial Use—
The measure and extent of an appropriative  right  is
beneficial use.  This is limited to the reasonable
needs of an appropriator (K.S.A. §42-302, 82a-707, 718).
However, Kansas statutes privide that:

     ...the date of priority of an appropriation
     right, and not the purpose of the use, de-
     termines the right to divert and use water
     at any time when the supply is not sufficient
     to satisfy all water rights that attach to  it.
     The holder of a water right for an inferior
     beneficial use of water shall not be deprived
     of his use of the water either temporarily or
     permanently as long as he is making proper
     use of it under the terms and conditions of
     his water right and the laws of this state,
     other than through condemnation (K.S.A. §82a-
     707b).

Overapplication of water to the land might  not be
considered a beneficial use.  Simply diverting water
without applying it to a beneficial use, i.e., the
irrigation of crops, could result in the loss of  such
right.

Haste-
In Kansas, the Chief Engineer has the authority  to
"make and to require any water user to make periodic
water waste and water quality checks and...to report
the findings thereof" (K.S.A. §82a-706c).  Further,
it is the policy of the state to "encourage, promote
and secure the maximum beneficial use, control and
                                                      154

-------
development of the water resources of the state" (K.S.A.
§82a-901), and "appropriation rights in excess of the
reasonable needs of the appropriators shall  not be
allowed" (K.S.A. §82a-707d).  Other general  goals of
the state include the plugging of abandoned  wells,
the control of seepage areas through which mineralized
waters pollute supplies of usable surface and under-
ground waters, and to have reasonable watercourses to
be free from toxic substances and acts (K.S.A. §82a-
928).  There exists in Kansas strong statutory lan-
guage prohibiting waste.

Kansas applies a general rule of one to two  acre-feet
per acre of water as a duty in allocating an available
supply.  Appropriation rights, however, in excess of
that applied to beneficial use, to include a reason-
able allowance for waste, seepage and evaporation, are
not allowed (K.S.A. §42-302, 1964; K.S.A. §82a-707d).

It is unlawful to dispose of wastes without  the pos-
session of a permit with the exceptions of wastes from
normal farming operations or from residential activi-
ties on land owned or leased by the individual or from
processing or manufacturing operations which do not
create a public nuisance or adversely affect the pub-
lic health (K.S.A. §65-3409).  Development of a state-
wide solid waste management plan is the responsibility
of the Board of Health which may adopt rules and regu-
lations to protect the surface and subsurface waters
from pollution by oil, gas, salt water injection wells,
and the discharge of sewage.  More importantly, the
Board establishes water quality standards to protect
the beneficial use of water (K.S.A. §65-171d).  A
recent amendment prohibits the discharge of  mercury,
in any quantity, into the waters of the state, which
would be detrimental to the public health, safety and
welfare or beneficial uses of water (K.S.A.  §65-171).

5.2.5  Manner in Uhich Water Rights May Be Affgcted

Provision is made for the abandonment and termination
of a water right if the owner does not beneficially
use the water for three successive years without due
and sufficient cause (K.S.A. §82a-718).  "Due and
sufficient cause" is not defined in the statutes.  The
owner must be notified in writing by the Chief Engineer
before his rights can be declared abandoned.  The own-
er has an opportunity to appear and show cause why
such rights should not be terminated.  The code also
provides that no water right of any kind can be
acquired solely by adverse possession, or by estoppel
(K.S.A. §82a-705).  Kansas statutes provide  that:

     All appropriations of water must be for some
     beneficial purpose.  Every water right  of
     every kind shall be deemed abandoned and
     shall  terminate when without due and suffi-
     cient cause no lawful, beneficial use is
     henceforth made of water under such right
     for three successive years.   Before any
     water right shall be declared abandoned and
     terminated, the user shall be notified  in
     writing by the Chief Engineer and given an
     opportunity to appear at a designated time and
     and place and show cause why his water  right
     should not be declared abandoned and
     terminated.
     Such notice shall contain the following in-
     formation in addition to the time and place
     of hearing:  1) A description of the water
     right in question; 2) the substantial loca-
     tion of the point of diversion;  3) the  gen-
     eral description of the lands or places where
     such waters were used; 4) a statement that
     unless due and sufficient cause  be shown the
     water right will be held abandoned and term-
     inated.  Such notice may be served by regis-
     tered or certified mail  and shell  be posted
     at least thirty (30) days before the date
     of the hearing and shall be sent to the
     last known address of the holder of the
     water right.  The Chief  Engineer shall
     within sixty (60) days after such  hearing
     make an order determining whether  such water
     right shall be held abandoned and  terminated
     and shall notify the holder of the water
     right as to the contents of such order by
     registered or certified  mail sent  to the
     last known address of the holder of the
     water right.
     The verified report of the Chief Engineer or
     his authorized representative shall be prima
     facie evidence of the abandonment  and termi-
     nation of any water right.  Any decision or
     order of the Chief Engineer declaring the
     abandonment and termination of any water right
     shall be in full force and effect  from the
     date of its entry in the records of his office
     unless and until its operation shall be stayed
     by an appeal therefrom.   Appeals from orders
     or decisions declaring abandonment and termi-
     nation may be taken by the holder  of the water
     right (K.S.A. §82a-718).

Adverse Possession —
Ho water rights can be acquired by adverse possession
(K.S.A. §82a-705).

Condemnation—
Section 26-513 provides that  "private property shall
not be taken or damaged for public use  without just
compensation."  As for water  rights, section 82-707
lists an order of preference  for water  uses when
different uses conflict.  The order of  preference is
domestic, municipal, irrigation, industrial, recrea-
tional, and water power uses.  The section goes on to
say that the priority date, not the preference order,
shall determine the distribution of water during
times when the supply does not sufficiently meet all
demands, and that "other than condemnation," a "non-
preferred" senior user will not be deprived of his
right to divert water permanently or temporarily if he
is complying with the terms and conditions of his
permit.

Water districts have the power of eminent domain.
Also, there are statutory provisions for the condem-
nation of a new channel whenever the old channel  has
been altered by a stream (K.S.A. §82a-201 to 205).

Enforcement of Beneficial  Use or VJaste  Concepts--
An appropriation is limited to the quantity of water
specified in the permit and is subject  to beneficial
use (K.S.A. §82a-709).   Appropriation in excess of
reasonable needs are not allowed (K.S.A. §82a-707d).

The right of an appropriator  must relate to a specific
quantity of water.  It must allow for a reasonable
raising or lowering of the static water level and for
the reasonable increase or decrease of  the stream-
flow at the appropriator's point of diversion.   If an
appropriator fails to apply the specified quantity
to a beneficial use, the unused water is subject to
the provisions of the abandonment statute (K.S.A.
§82a-718).
                                                      155

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 5.2.6  Legal  Incentives and Disincentives For More
L6£
Eff
          icient Water Use Practices
 Irrigation Return Flow—
 Return waters are those waters which return to the
 stream by seepage, deep percolation and tail water run-
 off and include waste water.  Return waters can be
 affected by a change in the place of use or type of
 use by the upstream appropriator.  Such a change re-
 quires the Chief Engineer's approval, and will be
 approved if change can be made without impairing
 existing rights (K.S.A. §82a-708b).

 There have been no cases in Kansas directed to the
 question of using return flows from irrigated lands.

 A downstream senior appropriator is entitled to have
 the stream flow in a sufficient quantity to satisfy
 existing appropriations.  An upstream junior approp-
 riator cannot, therefore, use water if such use would
 deprive the downstream senior of an appropriated
 quantity.  While there have been no cases in Kansas
 dealing with the appropriation of waste waters, sec-
 tion 82a-703 states that:  "subject to vested rights,
 aV[ waters within the state may be appropriated for
 beneficial use."  There seems to be no impediment to
 the appropriation of waste waters.

 Kansas statutes provide that the proprietor of any
 lands saturated by seepage waters from water works may
 drain the water into any natural stream, arroyo, or
 watercourse or he may apply it to agricultural pur-
 poses (K.S.A. §42-353).  To use seepage waters from
 unconstructed works, one is required to apply for a
 permit to appropriate and to obtain the approval of
 the State Engineer.

 Salvaged and Developed Haters—
 There are no court decisions in Kansas found to deal
 with the issue of rights to salvaged or developed
 waters.  However, in a case that involved the ob-
 struction of the flow of diffused surface water, the
 Kansas Supreme Court stated that a landowner had the
 right to use and accumulate all water falling upon
 his own land (Gibbs v. Williams. 25 Kan.  214, 1381).

 Provisions for Transfer of Water Rights and
 Diversions—
 The place of use, point of diversion, or nature of use
 may be changed without the appropriator suffering a
 loss of priority (K.S.A. §82a-708b).  Such changes are
 initiated by application to the Chief Engineer.  The
 Chief Engineer must determine if the change involves
 the same source as the original appropriation (K.S.A.
 §82a-708b).

A conveyance falls within the statute of frauds and
must be in writing (K.S.A.§42-121).  Separate trans-
 fers of water rights may be made by deeds executed
 and recorded as conveyances of real estate (K.S.A.
 §42-121).

 In Clark v. Allaman (71 Kan.  296, 80 p.571), the Court
 held that a riparian right is an incident to the owner-
 ship of riparian land.  Such a right can  be severed
 from the land and independently transferred
 (Shamleffer v.  Council Grove Peerless Hill  Co., 18
 Kan.  24,  1877).As was previously stated,  it is no
 longer possible to acquire rights under the riparian
doctrine.

 5.2.7  Water Disposal  and Drainage

The common law or common enemy rule was followed in
 Kansas as to all diffused surface waters  up to 1911
(Singleton v. Atchison. T. & S.F.R.R.. 67 Kans.  284,
72 P.786, 1903).However, a case decided in that
year held that when the water was used on agricul-
tural land, the civil law rule would apply (Dyer v.
Stahlhut. 147 Kan. 767, 78 P.2d, 900, 1939).  This
same case defined diffused surface waters as water
over the surface of the ground, sometimes forming
temporary accumulations in depressions of the land,
but without occupying any distinct channel.   In
Broadway Mfg. Co. v. Leavenworth Terminal Railway and
Co. (81 KanT 616, Pac. 1034, 1910), the Kansas Supreme
Court considered the overflow of a watercourse which
was permanently separated from the stream to be  dif-
fused surface water.

Martin v. Lown (111 Kan. 752, 208 Pac. 565,  1922)
established the current rule with respect to the dis-
posal of diffused surface waters.  Under this rule,
a lower landowner of agricultural lands cannot con-
struct a dam or levee to obstruct the flow of
diffused surface water to the detriment of an upper
landowner.  Conversely, an upper landowner cannot
divert diffused surface water from his land  onto
another's lands nor increase its flow to the injury
of a lower owner.  Landowners are authorized to  drain
their lands into channels leading into drains on pub-
lic highways or to natural watercourses.  Any land
which has been saturated by seepage waters can be
drained into any arroyo, stream, or watercourse  (K.S.
A. §24-106, 42-353, 42-354).

Kansas statutes also authorize landowners to drain
their lands, in the course of natural drainage,  into
channels leading to natural watercourses, or into
drains on public highways (K.S.A. §24-106, 1964).

5.3  ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS

5.3,1  State Water Agencies

Principal state agencies for water administration are
the Division of Water Resources and the Water Resources
Board.  Responsibility for the development and conserv-
ation of the water resources within the state also
belongs to rural water districts, ground water manage-
ment districts, watershed districts, and municipali-
ties (K.S.A.§82a-601 to 637, 82a-1020 to 1035, 24-
1201, 13-1205, 13-2401 to 2428).

The Water Resources Board is made up of seven members
appointed by the Governor (K.S.A. §74-2605).  The
Board's duties include the obligations to:  (1)  col-
lect and compile information relating to water,  soil
and climate; (2) review plans for water resource
development, management and use by any state or  local
agency; (3) develop plans for water resource develop-
ment within each watershed of the state; (4) make
recommendations to other state agencies for  the  coor-
dination of water management and conservation practices
and studies; and (5) study resource laws to  determine
the needs for future legislation (K.S.A. §74-2608).

Legislation was enacted in 1963 to prepare a state
water plan which would assure proper development and
control of water resources (K.S.A. §82a-901  to 903).
Long-range goals and objectives are to be established
for conservation, utilization,  disposal, and flood
control of waters (K.S.A. §82-904).   Authorization is
given to the Board to contract with public corpora-
tions as well as individuals for the sale of water
from state storage projects (K.S.A.  §82a-914-917).

General administrative control  over water is placed
in the hands of the Division of Water Resources.   This
Division, a part of the State Board of Agriculture,  is
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administered by the Chief Engineer.   The Chief Engineer
administers the statutes governing appropriation and dis-
tribution of water (K.S.A. §82a-706).

The Chief Engineer may adopt rules and regulations with
the approval of the Board of Agriculture, and can gather
information and data concerning irrigation projects
(K.S.A. §74-509).  The Chief Engineer is further directed
to conserve, control, allot, regulate, and aid in the
distribution of state waters taking cognizance of exist-
ing rights (K.S.A. §82a-706).  Adjudicated rights must be
protected and implemented in the terms and provisions
of the court decree, by the Division of Water Resources
(K.S.A. §82a-706).  To facilitate proper distribution
of water, the Chief Engineer can demand the installa-
tion and maintenance of control structures and measur-
ing devices.  These structures may be regulated by
the Chief Engineer in order to assure the proper
allocation of water among users (K.S.A. §82a-706c).
Upon request of the Chief Engineer, the Attorney Gen-
eral may bring suit to enjoin any unlawful appropri-
ation, diversion, or use of water (K.S.A. §82a-706d).

State laws now administered by the Division of Water
Resources, Kansas State Board of Agriculture, relate
to (list courtesy of Guy E. Gibson, Chief Engineer):

     1.  The construction of flood control works by
     cities (K.S.A. §12-635 to 646a).
     2.  The zoning of floodplains by cities and
     counties (K.S.A. 1970 Supplement, 112-734, 735).
     3.  The obstruction to flow of surface water
     (K.S.A. §24-105).
     4.  The construction, repair and maintenance of
     levees (K.S.A. §24-126).
     5.  The organization and operation of certain
     drainage districts (K.S.A. §24-656 to 668).
     6.  The organization and operation of watershed
     districts (K.S.A. §24-1201-1233).
     7.  The organization and operation of irrigation
     districts (K.S.A. §42-701 to 730).
     8.  The construction of dams, placing of obstruc-
     tion in streams, and changing the course, current
     or cross-section of a stream (K.S.A. §82a-301 to
     305).
     9.  The establishing of bank lines as boundaries
     within which counties may clean and maintain
     stream channels (K.S.A. §82a-307 to 311).
     10.  The reduction in assessed valuation of land
     where dams are built to create reservoirs for the
     storage of water (1975 Session Laws, Ch. 495,
     K.S.A. §82a-405 to 409a and K.S.A. §79-201g).
     11.  Irrigation investigation (K.S.A. 174-509).
     12.  Dams-Federal Agriculture Conservation
     Program (K.S.A. §82a-312 to 314).
     13.  Rural Water Supply District (K.S.A. §82a-
     601 to 611).
     14.  Rural Water Districts (K.S.A. §82a-612 to
     637).
     15.  Plans and surveys by Division of Water
     Resources (K.S.A. §82a-411 and 412).
     16.  The Kansas-Nebraska-Colorado Republican
     River Compact (K.S.A. §82a-518).
     17.  The Kansas-Colorado Arkansas River Compact
     (K.S.A. §82a-520).
     18.  The Kansas-Oklahoma Arkansas River Compact
     (K.S.A. §82-528).
     19.  The Kansas-Nebraska Big Blue River Compact
     (K.S.A. §82a-529).
     20.  The appropriation of water and establish-
     ment of water rights (K.S.A. §82a-701 to 725).
     21.  The organization and operation of ground
     water management districts (K.S.A. §82a-1020
     to 1035).
     22.  The Division cooperates with the State
      Water Resources  Board,  which was established  in
      1955, in the preparation  of a  general comprehen-
      sive state plan  of water  resources development
      (K.S.A.  §74-2605 to 2611,  and  K.S.A.  §24-901).
      23.   An  act concerning  the placing of car  bodies
      along or in a stream for  purposes of  bank  stabi-
      lization and soil  erosion  control (K.S.A.  §68-
      2203).
      24.   An  act concerning  a  grant fund for  rural
      watpr districts  (K.S.A. 1975 Supplement, §82a-638).
      25.   State Water Plan Storage  Act (K.S.A.  §82a-
      1301 to  1320).
      26.   Governor Robert docking officially  desig-
      nated the Division of Water Resources,  Kansas
      State Board of Agriculture, as the clearinghouse
      for floodplain insurance  information.
      27.   Governor Robert Docking officially  desig-
      nated the Division of Water Resources,  Kansas
      State Board of Agriculture, as the agency  respons-
      ible for the inventory of dams in Kansas under
      the National Dam Inspection Program.
      28.   The withdrawal and transportation  of  ground
      water in this state for use in an adjoining
      state (House Bill  No. 2814).
      29.   Policy Statement of  the State Conservation
      Commission on the Administration of a Special
      Fund for Assistance in Construction of  Watersheds
      and the  Chief Engineer's  responsibilities  as  set
      forth therein.

Figure 1 is the organization  chart of the Division.
Field officers and water commissioners are  appointed
to supervise the distribution of water.   Interference
with a water commissioner in the distribution  of water
may result in  criminal sanctions (K.S.A.  §42-393 to
42-397).

5.3.2  Judicial Bodies

Kansas does not have special  water  courts.  Appeal  from
the Chief Engineer's decision is to  the district court
(K.S.A. §82a-708b).

5.4  POLLUTION CONTROL

The Water Quality Control Act is administered  by the
Board of Health (K.S.A.§65-3301  to  3416). The  Board is
assisted by a  fifteen-member advisory council  which
can recommend  rules, regulations and standards to the
Board for implementation of the Act.  Recommendations
may be made for a plan to finance solid waste  systems
(K.S.A. §65-3404).  The Board is given authorization
to develop a statewide solid waste management  plan.

REFERENCES

Bureau of Census, 1969^ Censjji of Agriculture,  Vol.  IV,
Irrigation.  U.S. Dept. of Commerce, Wash., D.C., 1973.

Geraghty, J.,  D. Miller, F. Van der  Leeden, and
F. Troise, Water Atlas of the United States.  Water
Information Center, Port Washington, N.Y.,  1973.

Shurtz, E. B., Kansas  Water Law, Kansas Water Resources
Board, Topeka, Kansas, 1967.

	, "1974 Irrigation Survey," Irrigation Journal,
Vol. 24, No. 6, Nov./Dec. 1974.
                                                      157

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                                 ORGANIZATION CHART,  WATER RESOURCES DIVISION
                                                (51  Full-Time)
                                                 (6 Seasonal)
                                                Chief Engineer


                                                       -Secretary I
            I
Special Studies and Reports
Floodplain Zoning       Water Appropriation
  Administration of Laws
Pertaining to Dams, Levees
   and Channel Changes
                           Water Appropriation Applications
                            and Records, Budget, Personnel,
                                      Purchasing
                                                                       Field Offices:

                                                                           Topeka
                                                                          Stafford
                                                                          Stockton
                                                                         Garden  City
                                                  FIGURE 1
                                                     153

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                                              APPENDIX  A REPORT 6

                                                    MONTANA
6.1  HISTORICAL BACKGROUND

Montana is one of many Western states caught in the
crisis of being mediator of many conflicts, the root
of which is water.  The state, with a total of 147,138
square miles, receives an annual precipitation of 15
inches, resulting in a mean annual runoff average for
the state of 3.5 inches (U.S.G.S. Rept. No. 29, 1961,
p. 138).  The surface waters, which constitute the ma-
jor source of water supply, occur in two major drain-
age basins, the Columbia and Missouri River Basins.
The area of the former basin is only 17£ of the state,
but accounts for 58% of the state's total stream flow,
while the Missouri Basin encompasses almost 82% of the
state and accounts for only 40% of the stream flow
(Gopala Krishnan, 1971, p. 7}.  Agricultural uses for
irrigation purposes are estimated to be about 7,600
mgd or 2.5 million acre-feet from both surface and
ground water for application to approximately 2.2 mil-
lion acres of land (Geraghty, 1973).

A significant part of the turmoil experienced in Mon-
tana over development during the past 5 to 10 years
has been caused by inadequacies and inconsistencies in
the state*s water laws.  At a time when several large
irrigation projects were requiring anticipated sup-
plies, the energy crisis hit the nation, only to fall
upon the state with increased vigor in the speculation
of land and water rights values.  Montana's vast coal
reserves became a potential consumer of reallocated
water supplies.  To add to the squaring off of the two
arch-rivals for water—irrigation and mining--recrea-
tion and other environmental uses of water began lay-
ing claims to available supplies.

Previous to the 1972 constitutional amendment affect-
ing waters of the state and the major changes brought
about one year later with the Montana Water Use Act,
the state has enjoyed a fairly uneventful history in
water law changes.

Due to its topography and climate, Montana adopted the
rule of prior appropriation early in its history.1  As
early as 1874 the Montana Supreme Court characterized
a water right as a species of realty which requires
for its transfer the same form and solemnity as the
conveyance of any other real estate (Berkley v.
Tieleke, 2 Mont. 59, 1874).

Until 1885 water rights were acquired in accordance
with the customs and regulations of the early miners
and settlers.  These customs regarding water rights
were traceable to those rules which developed in the
California mining fields.

In 1885, a statutory procedure for appropriating water
was developed.  This procedure called for the posting
of notices at the point of diversion, the filing of
certificates with a county clerk and completing the
development of the claim with due diligence (R.C.M. §
89-810, 1947).  This was changed in 1921 when a pro-
cedure was initiated for claiming water rights
through court proceedings when water in an adjudicated
stream was involved (R.C.M. § 89-829, 89-839).
Ground water control became important in the late
1950's,and in 1961, the Montana legislative  assembly
enacted a law providing for appropriation and regula-
tion of such waters (R.C.M. §89-2911  to 2936).   In
1963, the body of ground water law was increased with
provisions to authorize the State Water Conservation
Board to appropriate water and require the licensing
of well drillers.

Historically Montana has enjoyed a uniqueness in its
administration of water rights.  Water rights were ad-
ministered by a system of court-appointed water com-
missioners instead of an administrative office such as
a state engineer.

In 1965, the duties and authority of the State Engi-
neer were transferred to the State Water Conservation
Board, which consisted of seven members (Mont.  L. sec.
17, ch. 28, 1965).  This Board was redesignated the
Montana Water Resources Board in 1965 (R.C.M. § 89-
103).  Finally, the Montana Water Resources  Board was
abolished by the Executive Reorganization Act of 1971
and its units and functions transferred to the Divi-
sion of Water Resources, Department of Natural  Re-
sources and Conservation (R.C.M. s 82A-1505).

The problems of the law not keeping pace with social
and economic pressures and requirements in the State
were well explicated in 1965 by Professor Stone
(Stone, 1971).2  He identified 13 key problem areas in
the State's water laws:
     1) acquisition of a water right by "use" and
        prescription;
     2) the statutory method of acquiring waters from
        an adjudicated stream;
     3) the exclusive method of appropriating waters
        from adjudicated streams;
     4) acquisition of rights by purchase;
     5) the duration of the right;
     6) access to the water source;
     7) diversions only from natural  watercourses;
     8) usage of flood, seepage and waste waters;
     9) unification of ground and surface water laws;
    10) ascertainment of past vested rights  and
    11) adjudication of water rights;
    12) administration of water rights and
    13) termination of rights (Ibid., pp. 1-16).

Emphasis upon the need and reasons for change in the
state's water laws was brought to the public's  atten-
tion in January 1971 with the convening of the  Sympo-
sium on Water Law and its Relationship to the Econom-
ic Development of Montana's Water Resources  in  Helena,
Montana.  The participants were to discuss the  state's
water law relative to the development of its water re-
sources and identify particular problem areas that
     1For an excellent historical review of Montana's
water laws, see Albert W. Stone, "Montana Water Rights
--A New Opportunity," 34 Mont. 1. Rev.  57, 1973.
     2Because of their particular relevance  to the wa-
ter scene in Montana in the early 1970's,  the Water
Resources Center, Montana University,  published a mono-
graph  entitled Montana's Water Law Problems in 1971,
which contains three excellent articles by Professor
Albert Stone.
                                                      159

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 impeded or created conflicts in water use and
 development.3

 The result of the public, professional and academic
 interests in the desire to improve the water laws of
 Montana was that the constitution was amended in 1972
 and a Water Use Act passed in 1973.  The constitution-
 al amendment declared (1) all existing rights to bene-
 ficial use are recognized and confirmed, (2) all bene-
 ficial uses, to include sale and rental of water as a
 public use, (3) all waters within the state are state
 property and subject to appropriation, and (4) an ad-
 ministrative system for control, recommendations and
 regulations of water rights will be created.  The 1973
 Water Use Act was a major change to the state's water
 laws.  Its major features, which will be discussed in
 greater detail in the following sections, include ini-
 tiating a permit system for water rights, centralizing
 water right records in the Department of Natural Re-
 sources and Conservation, providing a process for de-
 termination and recording of existing water rights and
 granting authority to administer, control, and regu-
 late water rights in Montana.

 In 1974, the Montana Water Resources Act of 1967,
 which enunciated a state policy committed to achieving
 optimum beneficial use of its water resources in light
 of pressing energy requirements and existing public
 uses,1* was amended to grant power to the Department to
 construct, operate and maintain water projects in the
 public interest with approval by the Board of Natural
 Resources and Conservation and to formulate a compre-
 hensive, co-ordinated multiple-use state water plan
 (R.C.M. 5 89-101 to 89-142).  Other major amendments
 in 1974 and 1975 expanded upon the definition of bene-
 ficial use to exclude use of water to slurry coal
 (R.C.M. § 89-867(2), Amd. S 1, Ch.  192, L. 1974),
 placed an affirmative burden of proof upon applicants
 for 15 cfs. or more that any prior appropriations will
 not be adversely affected by granting of their request
 (R.C.M. 5 89-885, Amd. 5 1, Ch.  156, L. 1975), prohib-
 ited changing the use of agricultural water rights of
 15 cfs. or more to industrial use (R.C.M. 5 89-892,
Amd.  5 1, Ch.  338, L.  1975), and modifying the power
of the Board and Department in acting upon water right
applications while placing the responsibility upon the
 district courts, instead of the Department for issuing
 orders requiring claimants of existing water rights to
 file declarations (S.B.  395, Ch. 485, L.  1975).

 In spSte of the changes that have taken place in the
 laws, Professor Stone very correctly points out this
 is not the panacea to all the problems:
     People tend to think that although the law
     may be slow to act, nevertheless the law
     ultimately has an answer—a solution that
     is final  and conclusive.! In the field of
     3See the Proceedings:   Symposium or Water Law and
its Relationship to the~Ecpngmic Development of Mon-
tana Water Resources, ed. Helmer Hoije. Water Resource
Research Center, Montana University Joint, Bozeman,
Montana, 1971, for presentations and discussions.

     "•The 1972 Constitutional amendment declared:
     The use of all water that is now or may here-
     after be appropriated  for sale, rent, distri-
     bution, or other beneficial use, the right
     of way over the lands  of others for all
     ditches, drains, flumes, canals, and aque-
     ducts necessarily used in connection there-
     with, and the sites for reservoirs necessary
     for collecting and storing water shall  be
     held to be a public use.
(Montana Constitution, Article IX, Section 3).
     water law, this feeling, or impression,
     has been induced and confirmed by some
     writers on water law and by some parts of
     court decisions taken out of context.  A
     brief review of some of these causes of
     incomprehension may be of aid in under-
     standing the legislative complacency in
     this area of law, for a legislature, like
     people, can evidently be lulled by a sense
     of legal security which really does not
     exist at all (Stone, 1973, p. 57).
He thereafter proceeds to illustrate three distinct
issues—ascertainments of existing rights, permitting
of new rights, and administrative not judicial admin-
istration of water resources—which the constitution
and statutory amendments only make vulnerable to so-
lution by water users and administrators, and not the
solution to the issues.

6.2  SUBSTANTIVE LAW

6.2.1  Property Right in Water

In 1905, the Montana Supreme Court declared that own-
ership of the water of the State is in the people of
the State (Norman v. Corbley, 32 Mont. 195, 79 P.
1059, 1905).  The constitutional amendment of 1972
explicitly declared:
     All surface, underground, flood, and atmos-
     pheric waters within the boundaries of the
     state are the property of the state for
     the use of its people and are subject to
     appropriation for beneficial uses as pro-
     vided by law (Montana State Constitution,
     Art. IX, Section 3).
The essence of this statement was also included in the
1973 Water Use Act (R.C.M. § 89-866(1)).

As provided by judicial and legislative recognition of
customary practices, water in Montana is allocated and
distributed under the doctrine or prior appropriation.
Changes in the early 1970's altered the mechanisms im-
plementing the doctrine and streamlined many provi-
sions that were not consistent with current and pro-
jected needs.  One of the key issues concerns the
status of water rights that were acquired prior to in-
troduction of the permit sysytem in 1973.  Since the
majority of Montana's water is allocated under the
previous system, these rights had to be protected.
This was done in the 1972 amendment to the constitu-
tion, which states:
     (1) All existing rights to the use of any
     waters for any useful or beneficial pur-
     pose are hereby recognized and confirmed
     (Ibid.).
The right which an appropriator gains is a private
property right, subject to ownership and disposition
by him (Osnes Livestock Co. v. Warren, 103 Mont. 284,
62 P.2d 206, 1936).However, private rights of own-
ership do not attach to the corpus of the waters as
long as it remains in the stream in its natural  state
(Custer y. Missoula Public Services Co., 91 Mont. 136,
6 P.2dl31, 1931; Mettler v. Ames Realty Co., 61  Mont.
152, 201 P.  702, 1921).The right to take water from
a public stream into private possession is strictly a
usufructuary right (Brennan v. Jones, 101 Mont.  550,
55 P. 2d697, 1936).

An appropriative right is in the nature of real  estate
insofar as a conveyance of the usufruct is concerned
(Middle Creek Ditch Co.  y. Henry. 15 Mont. 558,  P. 2d
1054, 1895), but ascertainment of the extent and pri-
ority of a usufructuary right is in the nature of an
action to quit title in real  estate (Whitcomb v.
Murphy, 94 Mont. 562,  23 P. 2d 980, 1933~T
                                                      160

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considered for taxation purposes, it is personal prop-
erty (Brady Irr. Co. v. Teton County, 102 Mont.  330,
85 P. 2d 350, 1938).

A water right is a property right and may be sold and
transferred.   Where the right is appurtenant to land,
the water right may be transferred with a conveyance
of the land or transferred separately (Osmes Livestock
Co. v. Warren, 103 Mont. 284, 62 P. 2d 206, 1936).

6.2.2  Acquisition of Right

The method of acquiring water rights followed tradi-
tional diversion, application to beneficial use, and
posting of notice prior to the passage of the Water
Resources Act in 1973.  After 1973, however, the ex-
clusive method of acquiring a water right is the stat-
utory method of filing for a permit.  Water may be ap-
propriated only for beneficial use.  The right to ap-
propriate water may not be acquired by any other meth-
od, including adverse possession, adverse use, pre-
scriptive use, or estoppel (R.C.M. 5 89-880).

The priority of the appropriation attaches to the date
of the filing of an application for a permit with the
Department of Natural Resources and Conservation.  The
exception to this is permits where controlled ground
water areas are considered.  In these cases, notice of
completion of the well is the date of priority (R.C.M.
§89-891).  As between competing users, the earlier
priority date grants a senior right to divert (R.C.M.
§ 89-891).

Upon receipt of an application for a permit, the De-
partment is to prepare a notice containing the facts
pertinent to the application.  This notice is to be
published in a newspaper of general circulation in
the area affected once a weeek for three consecutive
weeks.  Notice is served on any appropriator of water
or applicant for a permit according to the records of
the Department of Natural Resources and Conservation.
Notice is also served on any public agency which has
reserved water from the source in question.  Notice
may, in the Department's discretion, be served on any
state agency or individual the Department feels may be
interested in or affected by the proposed appropria-
tion.

Objections may be filed to the appropriation.  These
objections must state the name and address of the ob-
jector and criteria for stating that there is no un-
appropriated water for the proposed permit.  Such cri-
teria include considerations that the proposed means
of appropriation are inadequate; that property rights
or interests would be adversely affected by the pro-
posed appropriation; or any other objections to the
proposed appropriation the objector considers to be
pertinent.  If the objection is determined to be valid
a public hearing is held within sixty days of receipt
of the objection.  This occurs after notice of the
hearing has been served to the applicant and the ob-
jector.  If more than one objection is filed, the
hearing may be consolidated (R.C.M. § 89-881 through
89-883).

After the application has been received, the Depart-
ment is required to grant, deny, or approve the appli-
cation in part within 120 days after the last day of
notice publication of the application.  This is ex-
tended to 180 days if a hearing is held.  No modifi-
cation of the application may be instituted by the De-
partment unless the applicant is first granted an op-
portunity to be heard.  If the Department seeks to
modify an application, its opinion and the reasons
therefore are mailed to the applicant.  This state-
ment informs the applicant that a hearing is available
by requesting one within 30 days after the statement
was mailed.  If no request for a hearing is received,
the application is modified in a specified manner,  or
denied unless a hearing is requested.

The Department is required to issue a  permit if the
following criteria are satisfied:
     (1) there are unappropriated waters in the source
         of supply;
     (2) the rights of prior appropriation will not be
         adversely affected;
     (3) the proposed means of diversion or construc-
         tion are adequate;
     (4) the proposed use is a beneficial use;
     (5) the proposal will not interfere unreasonably
         with other planned uses or developments for
         which either a permit has been issued  or for
         which water has been reserved.
     (6) an applicant for an appropriation of 15 cubic
         feet per second or more proves by clear and
         convincing evidence that the  rights of a pri-
         or appropriator will not be adversely
         affected (R.C.M. § 89-892).

The Department may issue permits for less than  the
amount of water requested, but not for  more than the
request.  Also, it may not issue permits for more wa-
ter than can be beneficially used without waste. The
Department may require modification of plans and spe-
cifications for the appropriation or of a later diver-
sion or construction.  It may issue a  permit subject
to terms, conditions, restrictions, and limitations it
considers necessary to protect the rights of other  ap-
propriators.  It may also issue temporary or seasonal
permits.  Permits are issued subject to existing
rights and any final determination of  those rights  is
made under the Water Resources Act (R.C.M. § 89-866).

Upon completion of the diversion works and actual ap-
plication of water to the proposed beneficial use
within the time permitted by the permit, the permit
holder is required to notify the Department.  The De-
partment will then inspect the appropriation.  If it
determines that the appropriation and  diversion have
been completed in substantial compliance with the
permit, it issues a  certificate of a  water right
(R.C.M. § 89-888).

As with a water right, the construction of diversion
works, implements, withdrawal or distribution works
may only commence after receipt of a permit from the
Department of Natural Resources and Conservation.
The one exception concerns areas outside the boundar-
ies of controlled ground water areas.   In such  areas,
a permit is not required for appropriating ground wa-
ter by means of a well provided that the well has a
maximum yield of less than 100 gallons per minute
(R.C.M. § 89-880 (4)).  Within sixty days of comple-
tion of the well, the appropriator must file notice
of completion with the Department and  with the Office
of the County Clerk and Recorder.  Upon receipt of
this notice, the Department automatically issues a
certificate of a water right.

Ground Water-
Ground water is defined in Montana as  any fresh water
beneath either the land or the bed of  a stream, lake,
reservoir, or other body of surface water which is  not
part of surface water.  Beneficial use, when used in
the context of ground water, means the use of water
for the benefit of the appropriator, other persons of
the public, including but not limited  to:  agricul-
tural (including stock water), domestic, fish and
wildlife, industrial, irrigation, mining, municipal.
                                                      161

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power and recreation uses.   It is significant to note
the exclusion of slurry water.  Apparently, the legis-
lature had decided that slurry systems must be by sur-
face water only (R.C.M. 5 89-2911).

Any person claiming a right to withdraw ground water,
whether or not from a controlled area, may request a
hearing.  The Department of Natural  Resources and Con-
servation may also initiate a hearing to ascertain all
existing rights to the use of ground water in the area
or sub-area involved.

If the area involved is in a controlled ground water
area, or sub-area where oil and gas  wells produce ei-
ther fresh, brackish, or saline waters, such produc-
tion of water shall be under the prior jurisdiction of
the Board of Oil and Gas Conservation.  The hearings
pertaining to the production, use, and disposal of wa-
ter in those wells will be held by the Board of Natu-
ral Resources and Conservation in accordance with the
procedures established by the Board of Oil and Gas
Conservation.

Prior to a hearing before the Board of Natural Re-
sources and Conservation, notice must be given by pub-
lication in a general circulation newspaper for three
weeks.  Further, a copy of the notice of the hearing
and of the proposal will be mailed to each person in-
volved in the petition.

In a hearing to ascertain the priorities of use for
ground water, the Department of Natural Resources and
Conservation may either confirm, modify, alter or
amend any prior order designating and modifying the
boundaries of the ground water area or sub-area in-
volved.  It will also determine the priority of rights,
and the quantity of ground water to which each appro-
priator is entitled in a particular ground water area
or sub-area.  It may also determine the minimum level
of ground water to be appropriated (R.C.M. § 89-2917).

Designation of an area for controlled ground water use
may be initiated by the Department or by petition of
at least 20 (or %, whichever is less) ground water
users in a ground water area.  A factual showing of
the following is necessary:  1) that the ground water
withdrawals are in excess of recharge to the aquifer
or aquifers within such ground water area; 2) that
excessive ground water withdrawals are very likely to
occur within the near future because of significant
incfeases in withdrawal from the ground water area; or
3) that significant disputes regarding priority of
rights, amounts of ground water in use by appropria-
tors, or priority of types of use are in progress
within the ground water area.

When such a proposal is made, the Department win fix a
time and place for a hearing.  This hearing will not
be less than thirty days from the time of a proposal.
The notice of a hearing shall contain the names of the
petitioners, the description by legal subdivision of
all lands within the ground water area or sub-area,
the purpose of the hearings, and the time and place of
the hearing where any interested party may appear and
file objections (R.C.M. I 89-2914).

If, after hearing all the evidence, the Board is con-
vinced that annual withdrawal exceeds annual re-
charge, it shall order the total withdrawal of ground
water from such an area or sub-area to be decreased so
as not to exceed annual yield.  Except for domestic
uses, this decrease will follow the lines of priorities
(R.C.M.  S 89-2915).

Once an area is designated a controlled area, an appro-
propriation may only be obtained by applying for and
receiving a permit from the Department in accordance
with the Water Use Act.  The Department may not grant
a permit if withdrawal  is beyond the capacity of the
aquifer, in the ground  water area,  to yield ground
water within reasonable pumping lifts, or within rea-
sonable, reduction of artesian pressures (R.C.M. 5
89-2918).

Prescriptive Hater Rights—
Formerly water rights in Montana could be acquired
through prescription.  Adverse use  had to be contin-
uous, exclusive, and an open invasion of another's
rights for a period of five years (Irion v. Hyde, 107
Mont. 84, 81 P. 2d 353, 1938).  HoweverV the 1973 act
now precludes this possibility (R.C.M. 5 89-880).

Preferences—
Montana has no statutory system of  preferences for wa-
ter uses.

6.2.3.  Adjudicating Water Rights

To facilitate its task, the Department of Natural Re-
sources and Conservation is permitted to select and
specify an area or source where the need for the de-
termination of existing rights is most urgent.  The
Department may then begin proceedings to determine
rights in such areas (R.C.M. § 89-870).

The procedure for determining existing rights begins
with an order from the Department of Natural Resources
and Conservation requiring each person who claims a
right within the specified area (or from a specified
source) to file a declaration of the right within one
year of the order.  Notice of the order is published
once a week for three consecutive weeks in a newspa-
per of general circulation in the area to be affected.
The Department must serve a copy of the order on each
appropriator, or the appropriator's successor in in-
terest, within the area.

After gathering all necessary data, the Department is
to file a petition in the District Court of the judi-
cial district within which the area is located.  If
there are more than two judicial districts involved
within the area, each district court is to be notified
of the intent to file a petition.  The judges of those
courts are then to agree upon which judge shall hear
the petition within thirty days after receipt of the
notice (R.C.M. § 89-873 (1) and (2), 89-881).  The
petition states the names of persons who appear from
the data gathered by the Department, claiming to have
rights to the use of water in the area in question.

Within a reasonable time after filing the petition,
the District Court is to issue a preliminary decree
based on the data submitted with the petition and
other data obtained by the court.  This decree is to
be sent to each party to the petition for inspection
(R.C.M. §89-875 (1) and (3)).

Either the Department or a party to the petition may,
for good cause, object to the preliminary decree.
Upon such objection, those involved are entitled to a
hearing before the District Court.   This hearing must
be requested ninety days after the receipt of the pre-
liminary decree.  This time, however, may be extended
for good cause.  The court,either on the basis of the
preliminary decree or any hearing that may have been
held, shall enter a final decree either affirming or
modifying the preliminary decree.  If no request for
hearing is filed within the time allotted, the prelim-
inary decree becomes final automatically.  The final
decree establishes the existing rights and priorities
                                                       162

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of persons named in the petition for the source or
area under consideration (R.C.M. § 89-876 and 877).

Appeals from this final decree may be had by persons
whose existing rights are determined in that final de-
cree, but only if he has requested a hearing and ap-
peared and entered objections to the preliminary de-
cree, or his rights as determined in the preliminary
decree were altered as a result of the hearing at
which he appeared requested by another person (R.C.M.
§ 89-878).

When the final decree is entered, the court sends a
copy to the Department of Natural Resources and Con-
servation, which shall issue appropriate certificates
of water rights.  This certificate is sent to the
County Clerk and Recorder, where the point of diver-
sion or place of use is located.  After recordation it
is sent to the person to whom the right is decreed
(R.C.M. § 89-878 and 879).

One of the major problems in Montana is determining
the status of existing water rights.  Under previous
posting and filing of notice laws, the water rights
were recorded with the county clerk (R.C.M. § 89-810,
1949).  This causes many problems over diversions on
inter-county  streams.  Further, failure to post no-
tice doesn't invalidate the rights, it merely prevents
the doctrine of relation back from establishing a pri-
ority date as of the date of posting notice.

This lack of adequate records creates uncertainty as
to the value and status of early water rights.  Prior
to the Montana Water Use Act, the most significant at-
tempt to record water right ownership was in 1967.
The law required county clerks to inform the Depart-
ment of Natural Resources and Conservation of all wa-
ter right transfers.  The system was not very effec-
tive.5

Under the 1973 Act, the Department must maintain a
centralized record system of all water rights.  Thus,
post-1973 water rights are of record and only those
pre-1973 in adjudicated areas will be of accurate
record.

It is interesting to note that even though the lack of
adequate records on water rights was considered a sig-
nificant problem by the 1973 legislature, their solu-
tion to the pre-1973 problem may in itself become a
problem in the future.  Although the transferree is
required to notify the Department of the ownership
change by submitting a transfer form (R.C.M. s 89-893),
no penalty exists for non-compliance.  The records of
Montana will become as inaccurate as those of its
neighboring states in time.

6.2.4  Conditions of Use

Beneficial Use—
During the past decade, Montana water law has changed
significantly in an effort to achieve progressive
legislation that will enable optimum use of the
State's water resources through efficient and effec-
tive management.  The one critical element of each
state's water laws which can facilitate or hinder this
     5Information on the recording of water rights
prior to and since 1973 was obtained by correspondence
dated May 19, 1975, from the Chief of the Water Rights
Bureau, Dept. of Natural Resources and Conservation,
to this report's author.
effort is the concept of beneficial  use, its definition
and the state's ability to enforce it.

The 1973 Water Use Act defines beneficial  use as:
     a use of water for the benefit  of the
     appropriator, other persons, or the  pub-
     lic, including, but not limited to,  agri-
     cultural (including stock water),  domestic,
     fish and wildlife, industrial,  irrigation,
     mining, municipal power, and recreational
     uses; provided, however, that a use  of wa-
     ter for slurry to export coal from Montana
     is not a beneficial use.  Slurry is  a mix-
     ture of water and insoluble matter (R.C.M.
     § 89-867 (2)).
This is not to be interpreted  as only applying  to the
type of use made of water.  Legislative policy declar-
ations speak both of promoting beneficial  use and pro-
tecting beneficial uses:
     (1) The general welfare of the  people of
     Montana, in view of the state's popula-
     tion growth and expanding economy, re-
     quires that water resources of  the state
     be put to optimum beneficial use and not
     wasted.
     (2) The public policy of the state is to
     promote the conservation, development,
     and beneficial use of the state's water
     resources to secure maximum economic
     and social prosperity for its citizens.
     (3) The state, in the exercise  of its
     sovereign power, acting through the  de-
     partment Of natural resources and con-
     servation shall co-ordinate the develop-
     ment and use of the water resources  of
     the state so as to effect full  utiliza-
     tion, conservation and protection of
     its water resources.
     (4) The development and utilization  of wa-
     ter resources, and the efficient economic
     distribution thereof, are vital to the
     people in order to protect existing  uses
     and to assure adequate future supplies
     for domestic, industrial  and other  bene-
     ficial uses   (R.C.M. § 89-101.2 emphasis
     added, policy statement from Water Re-
     sources Act).

     (1) Pursuant to article IX of the Montana
     consitution, the legislature declares that
     any use of water is a public use, and that
     the waters within the state are the  prop-
     erty of the state for the use of its peo-
     ple and are subject to appropriation for
     beneficial use as provided in this act.
     (2) A purpose of this act is to implement
     article IX, section 3(4) of the Montana
     constitution, which requires that the
     legislature provide for the administra-
     tion, control, and regulation of water
     rights and establish a system of central-
     ized records recognizing and establishing
     all water rights is essential for the
     documentation, protection, preservation
     and future beneficial use and development
     of Montana's water for the state and its
     citizens, and for the continued develop-
     ment and completion of the comprehensive
     state water plan.
     (3) It is the policy of this state and a
     purpose of this act to encourage the wise
     use of the state's water resources by
     making them available for appropriation
     consistent with this act, and to provide
     for the wise utilization, development,
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     and conservation of the waters of the
     state for the maximum benefits of its
     people with the least possible degrada-
     tion of the natural aquatic ecosystems.
     In pursuit of this policy, the state en-
     courages the development of facilities
     which store and conserve waters for bene-
     ficial use, for the maximization of the
     use of those waters in Montana, for the
     stabilization of stream flows, and for
     ground water recharge (R.C.M. § 89-866, emphasis
 added, policy statement of 1973 Water Use Act).

Beneficial use defines  the types of purposes for which
water may  be appropriated and  establishes the require-
ments of efficiency.  The right of an appropriator is
limited to an amount which he  reasonably needs and
uses over  a reasonable  period  of time (Federal Land
Bank v. Morris. 112 Mont. 445, 116 P.2d 1007, Y941).
Subsequent appropriators can compel a prior appropri-
ator to release water for their use which he does not
need for a beneficial use (Cans and Klein Investment
Co. v. Sanford. 91 Mont. 512,  8 P.23"80S)".  "™

In the absence of statutes which regulate the amount of
water which is reasonably necessary for irrigation the
courts allow "one inch  per acre" in fixing an amount
required for economical use (Worden v. Alexander, 108
Mont. 208, 90 P.2d 160, 1939J"Thus the rights of an
appropriator are measured by the beneficial use stan-
dard and the amount which can be used over reasonable
periods (Irion v. Hyde. 107 Mont. 84, 81 P.2d 353,
1938).

Waste--
Prior to the 1975 water act, there were several judi-
cial pronouncements on the prevention of waste, which
set the tone for subsequent legislation.  In Power v.
Switzer (21 Mont. 523, 55 P. 32, 1898), the Montana
Supreme Court laid down the rule that no appropriation
of water is valid where the water simply goes to waste,
and an appropriator who diverts more than is needed for
his actual requirements and allows the excess to go to
waste acquires no right in the excess.  In fact, the
appropriation of water does not include a right to let
water run to waste to the detriment of other users
(Custer v. Missoula Public Service Co., 91 Mont. 136,
6 P.2d 131, 1931).The right  is limited to that amount
actually needed by the user (Cook v. Hudson, 110 Mont.
263, 103 P.2d 137, 1940).

Montana's legislature defined waste in 1973 as:
     The unreasonable loss of water through the
     design or negligent operation of an appro-
     priation or water distribution facility,
     or the application of water to anything but
     a beneficial use (R.C.M.  § 89-867 (10)).
Pursuant to the policies of water use outlined above,
if the Department of Natural Resources and Conservation
determines that a person is wasting water, or using wa-
ter unlawfully, or preventing water from moving to
another person having a prior right  to use the same,
it may petition the district court to regulate the con-
trolling works of the appropriator to prevent the waste
or unlawful use of water or order the person wasting or
unlawfully using or interfering with another's rightful
use of water to cease and desist from doing so and to
take such steps as may be necessary to remedy the waste
(R.C.M. § 89-897(1))-  In the alternative, the Depart-
ment directs its own attorney or requests the attorney
general or county attorney to bring suit to enjoin the
waste, unlawful use or interference (Ibid., (2)).

This approach to controlling waste of water has the dis-
tinct disadvantage of giving the appropriator wasting
or misappropriating water all the advantages of le-
gal procedure.  The procedural delays possible and
conditions necessary to initiate a successful action
may make this waste provision impossible for the De-
partment to implement or at least cause frustration
among its personnel.

Waste and Contamination of Ground Water—
Appropriative rights allow a specific quantity of wa-
ter for beneficial uses and do not relate to water
levels, ease of withdrawal or means of use (R.C.M. 5
89-2912).  Beneficial use is the extent and limit of
the right and is defined as any economically or so-
cially justifiable withdrawal or utilization of water
(R.C.M. 5 89-2911).  The Department of Natural Re-
sources and Conservation may hold a hearing on its
own motion or on a petition signed by representatives
of ground water users in any area or sub-area to de-
termine if the water supply within an area or sub-
area is being appropriately used (R.C.M. & 89-2926).

The Department may require wells contaminating other
waters to be plugged or capped.  It may also require
all flowing wells to be capped or equipped with valves
so that water flow may be stopped when the water is
not being put to  beneficial use.  Similarly, both
flowing and non-flowing wells are to be constructed
and maintained so as to prevent the waste contamina-
tion or pollution of ground waters because of leaky
casings, pipe fittings, valves, pumps, either below
or above the surface of the land.

The following do not constitute waste: 1) the with-
drawal of reasonable quantities of ground water in
connection with the construction, development, test-
ing, or repair of a well or other means of withdrawal
of ground water; 2) the inadvertent loss of ground wa-
ter due to breakage of a pump, valve, pipe or fitting
if reasonable diligence is shown by the person in
effecting the necessary repair; 3) the disposal of
ground water without further beneficial use that must
be withdrawn for the sole purpose of improving or pre-
serving the utility of land by drainage of the same,
or that removed from a mine to permit mining opera-
tions to preserve the mine in good condition; 4) the
disposal of ground water used in connection with pro-
duction or reduction, smelting and milling metallic
ores and industrial minerals, or that displaced from
an aquifer by storage of other mineral resources.

6.2.5  Manner in Which Rights May Be Adversely
       Affected

Abandonment and Forfeiture--
Montana is one of the Western States which has incor-
porated the two distinct methods of losing a water
right--abandonment and forfeiture—into one statutory
provision, without distinguishing terms.  According to
the 1973 Water Use Act, if an appropriator ceases to
use all or part of an appropriation right, with the
intention of wholly or partially abandoning the right,
or if the appropriator ceases using the right accord-
ing to its terms and conditions with the intention of
not complying with those terms and conditions, the ap-
propriation right shall be deemed abandoned and expire
immediately (R.C.M. § 89-894(1)).  This is consistent
with early court decisions that have held before a wa-
ter right will be deemed abandoned there must be an
actual non-use coupled by an intent to abandon (Irion
v. Hyde. 107 Mont.  84, 81  P.2d 353, 1938).  Abandon-
ment is a voluntary act of relinquishing possession
and the intent to not resume the use for a beneficial
use (Osnes Livestock Co. y.  Warren. 103 Mont.  284, 62
P. 2d 206, 1936).
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 The  next  subsection  in  the  statutes  provides what  is
 commonly  referred  to as statutory  forfeiture.   If  an
 appropriator  ceases  to  use  all  or  part  of  an appropri-
 ation  right for  ten  successive  years (providing that
 water  was available  for use)  there is a prima  facie
 presumption that the appropriator  has abandoned the
 right  in whole or  in part for the  part  not used (R.C.
 M. § 89-894).

 The  Department of  Natural Resources  and Conservation
 is the agency charged with  the  responsibility  of hav-
 ing  water rights declared abandoned  (R.C.M.  S  89-895).
 When the Department  has reason  to  believe  that an  ap-
 propriator may have  abandoned his  appropriative right
 or when another  appropriator  in the  opinion of the
 Department files a valid claim  that  he  has been or
 will be injured  by the  resumption  of a  use of  an ap-
 propriation alleged  to  have been abandoned, then the
 Department shall petition the District  Court which
 determined the existing rights  in  the source of appro-
 priation in question.   The  Court will then hold a
 hearing to determine whether  the appropriation right
 has  been abandoned.

 Adverse Possession,  Estoppal, Condemnation—
 Prior  to the  1973  Water Use Act, water  rights  could
 be acquired from other  water  right holders by  adverse
 possession after 5 years, and by estoppel  and  condem-
 nation.  Recognizing the legal  problems involved with
 these  doctrines, the Montana  legislative assembly
adopted section R.C.M. §  89-880  in  the Water Use Act of
 1973 which provides  that water  rights can  be acquired
 by following  the permit procedure  exclusively  and  not
 by adverse possession,  prescription  or  estoppal.

 Enforcement of Beneficial Use or Waste  Concepts—
 An appropriator  is limited  to the  quantity of  water
 specified in  his permit that  is  being beneficially
 used and any  unused  water can be lost by forfeiture
 or abandonment.  There  may, however, be a  problem  of
 implementing  the abandonment  statute as  pointed out
 above. The right of  an  appropriator  is  limited  to  an
 amount which  can be  reasonably  used over a reasonable
 period of time (Federal  Land Bank  v.  Morris, 112 Mont.
 445, 116 P.  2d 206,  1936).

 In 1973,  with the  reorganization of the  State's water
 agencies and granting of power  to administer and to
 an undetermined  extent,  manage, the state's waters
 for the public,  the  Board of Natural  Resources  and
 Conservation can adopt  rules to carry out  the  intent
 of the Act to include installation of measuring de-
 vices  (R.C.M.  § 89-869).   The Department of Natural
 Resources and Conservation  is charged with the  power
 and duty to carry out the rules adopted  by the  Board
 (R.C.M. § 89-868) and specifically to either petition
 the district court to regulate the controlling work
or issue a cease and desist order, or to direct its
 own attorney general  to  bring suit to prevent unlaw-
 ful use and waste of water  (R.C.M.  §  89-897).   The law
authorizes employees or  agents of the Department to
enter a water  user's properties to carry out the  in-
tent of the Act  (R.C.M.  § 89-898).

Montana has  an interesting provision  regarding watei
distribution.   The legislature charged the district
courts with supervisory  responsibility over the dis-
tribution of water among all appropriators including
the supervision of all water commissioners (R.C.M.  §
89-896).   This places the courts in a direct and imme-
diate role to resolve water use disputes.
 6.2.6   Legal  Incentives and Disincentive for More
        Efficient Water Use Practices

 Irrigation  Return Flow--
 Water which has been appropriated may be turned into
 another stream and then reclaimed if the commingled
 water is not  diminished in quality or quantity (R.C.M.
 S 89-804).  If an appropriator diverts more water than
 he can  use,he must return the surplus to the stream
 (R.C.M.  S 89-805).

 Where water has seeped from irrigation lands into a
 drainage ditch it is subject to appropriation (Wills
 v. Morris.  100 Mont. 514, P.2d 862, 1935). However,
 while return  waters are in the possession of the ap-
 propriator  he can recapture and reuse them (Rock
 Creek Ditch, and Hume Co. v. Miller, 93 Mont. 248, 17
 P.2d 1074,"! 933)7

 Montana case  law holds that a landowner cannot be com-
 pelled  to continue conditions which result in waste of
 water or be prevented from draining his land in such a
 manner  as to  cut off the flow of waste water (Popham
 v. Holloron.  84 Mont. 442, 275 P. 1099, 1929).

 In Newton v.  Weiler (87 Mont. 164, 286 P. 133, 1930),
 the Montana Supreme Court held that a proprietor of
 land has the  right to use the land as he sees fit and
 may change  the flow of waste waters in the reasonable
 employment  of his own property, subject to the limi-
 tation  that the use is without malice or negligence.

 Salvaged and  Developed Waters—
 The right to  use salvaged and developed waters is gov-
 erned by the  rule that the person who makes such water
 available is  entitled to its use.  An individual who
 has invested  time and money should be entitled to re-
 ceive the fruits from that labor (Woodward v. Perkins,
 116 Mont. 46, 147 P.2d 1016, 1944)":

 In $mith^ v^. Duff (39 Mont. 382, 102 P. 984, 1909), the
 Montana Supreme Court held that persons who have de-
 veloped a supply of water which is not a part of the
 waters  of a creek and was not previously available for
 use have the  first right to take and use the increase.

 Provisions  for Transfer of Water Rights and Diversions—
 An appropriator may not change the place of diversion,
 place of use, purpose of use, or place of storage
 (R.C.M.  5 89-8920) nor sever or sell a part of a water
 right for use on other lands or for other purposes
 (R.C.M.  § 89-893 (3)) without receiving prior approval
 from the Department of Natural Resources and Conserva-
 tion.  The  Department is instructed by statute to ap-
 prove the proposed change if it determines that it
 will not adversely affect the rights of others.   If
 the Department determines that the proposed change
 may adversely affect the rights of other people, or if
 an objection  is filed by a person whose rights might
 be affected,  a public hearing will  be held on the pro-
 posal .

 In the case of transfer in ownership of land  with a
 water right,  the right will  automatically pass with
 the conveyance unless specifically exempted and either
 retained or transferred separately.   For all  instances
 of transfers of water rights,  it is the responsibility
 of the person receiving the right to file with the De-
 partment a notice of transfer (R.C.M.  5 89-893(2)).
However, because there are no penalties for failure to
 file this notice,  it can only be assumed that many
transfers will occur unrecorded.

 In 1975, the legislature amended the section  providing
for changes in water rights  by prohibiting the change
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in purpose of use of an agricultural water right for
15 cfs or more to an industrial use (R.C.M. 5 89-892
(3), H.B. 83, Ch. 338, L. 1975).

6.2.7  Water Disposal and Drainage

Prior to the 1973 legislative changes in the water
laws, a landowner could capture diffused surface wa-
ter on his property and apply them to his needs with-
out regard to earlier priorities on the law of prior
appropriation (Doney v. Beatty, 124 Mont. 41, 220 P.2d
77, 1950).  It is not certain whether it was the in-
tent of the legislature to change this rule by defin-
ing "water" to mean all water of the state, "regard-
less of its character or manner of occurrence"(R.C.M.
S 89-867(1)) and subjecting such water to appropria-
tion by permit.

This point is relevant in the context of a historical
discussion of the Montana drainage laws.  In 1903, the
State Supreme Court noted that a landowner downstream
on a channel carrying only diffused surface waters
owned no easement to the upper proprietors (Campbel1
v. Flannery, 29 Mont. 246, 74 P. 450).  Later, in
Le Munyon v. Gallatin Valley Railroad (60 Mont. 517,
199 P. 915, 1921), the Montana Supreme Court clearly
adopted the common-law rule, holding that the lower
landowner owes no duty to the upper landowner to re-
frain from obstructing the flow upon his land.  Each
landowner can protect his lands front the flow of dif-
fused waters by embankments or other means.  As noted
by Hutchins, E31is and DeBraal (1974, p. 547), the
Montana statement of the common law rule is substan-
tially the same as the common enemy rule.

fi.3  ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS

6.3.1  State Water Agencies

Montana has been attempting to achieve a satisfactory
organizational scheme for handling water resources
matters since 1965 when the Water Conservation Board
was created and to perform the duties of the previous
Office of State Engineer.  In 1967 and 1971 there were
further reorganizations to streamline the administra-
tive process.  The Water Resources Board, which was
the former Mater Conservation Board, was abolished and
the present agency created—the Department of Natural
Resources and Conservation (R.C.M. 5 82A-1505).  With-
in tnis Department is the Division of Water Resources,
headed by an Administrator.  In addition, there is a
Board of Natural Resources and Conservation, presided
over by a chairman.  The Department is under the man-
agement of a Director.

The impetus for the 1971 reorganization was a consti-
tutional amendment in 1969 and the Executive Reorgani-
zation Act of 1971 which contained the recommendations
of the Coranissicrv on Executive Reorganization (Guze,
1972).

The reorganization that took place in 1971-72 still
lacked the ability to administer the water rights un-
der their fragmental existence of being recorded in
the district courts and no central control over either
allocation nor planning of future uses.  Thus, in 1972,
a constitutional amendment was adopted which stated:
     (4) The legislature shall provide for the
     administration, control, and regulation of
     water rights and shall establish a system
     of centralized records, in addition to the
     present system of local records (Montana
Const., Art. IX, Sec. 3).  Pursuant to this declara-
tion, the legislature directed that a centralized sys-
tem for the administration, control, regulation, and
recordation of water rights be established (R.C.M.  s
89-866 (2)).  This was necessary for the documentation,
protection, preservation and future beneficial  use  and
development of Montana's water (R.C.M.  § 89-866 (2)).

To accomplish this centralization, the powers of the
Department of Natural Resources and Conservation were
greatly expanded.  Among the duties and powers  given
to this department were to establish a centralized
record system for existing water rights and  to
gather all data necessary forthe proper understanding
and determination of existing rights {R.C.M. §  89-870
repealed 1975 Supp.).  No previous recordation  of wa-
ter rights in Montana had been effective.  A recorda-
tion effort required the County Clerk and Recorders
to inform the Montana Water Resources Board  of  water
right transfers.  Compliance, however, though statu-
tory, was limited.  Under the new act, the Department
must be notified of any transfer of a water right.
The person receiving interest in the right is respon-
sible for submitting the proper transfer form (R.C.M.
§ 89-893).  At this time, however, there are no penal-
ties for non-compliance with the statute.

Other statutory duties of the Department under the
1973 Act will enable it to determine how, when  and
where Montana's waters are being utilized and the cre-
ation and enforcement of a permit system for water
rights, which is now the exclusive method of obtaining
an appropriated right, the ascertainment and practices
of existing water rights, adjudication of streams,  en-
forcing rules and regulations adopted by the Board  re-
garding the use of water resources and cooperating,
assisting and co-ordinating activities with federal,
local and other state agencies in matters related to
water.  The Act was amended in 1975 to delete the
power of the Board to adopt rules governing interim
approval of water right changes, to direct the  Depart-
ment to cease action on applications not in good faith
or showing bona fide intent to put the water to bene-
ficial use, and expanding the jurisdiction of the dis-
trict courts in finding claims to existing water
rights (S.B. 395, Ch. 485, Mont. Session L.  1975).

When a conflict arises where existing rights have not
been determined, the Department of Natural Resources
and Conservation may, in its discretion, begin  pro-
ceedings to determine existing rights.  If the Depart-
ment does not make determination of existing rights,
the District Court may settle the controversy between
the disputing parties (R.C.M. §  89-896 (1)   and (2)).
In a controversy between appropriators from a source
which has been the subject of a general determination
of existing rights the controversy shall be settled by
the District Court which issued the final decree.  The
Court settlement of the controversy may not alter
existing rights and priorities as established by the
final decree.  In cases involving permits issued by
the Department, the Court may not amend the respective
rights established by the permits or alter any terms
unless the permits are inconsistent with or interfere
with the rights and priorities established by the fi-
nal decree.  The order settling the controversy is  to
be attached to the final decree and filed with the
Department  (R.C.M. S 89-896 (3)).

6.3.2  Judicial Bodies

The District Courts in Montana have some control over
the water distribution to appropriators.  Their au-
thority includes supervision of all water commission-
ers.  Water Commissioners make appropriate distribu-
tions, keep records of them and report periodically to
the court (R.C.M. 5 89-1009).  Interference with their
duties could result in a court proceeding (R.C.M. S
89-1022).
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6.3.3  Water Users and Their Organizational Structure

Dlstrlcts--
Irrigation districts may be formed under Montana stat-
utes 89-1201 to 89-1617 and are corporations with a
public purpose.  These districts may be organized if
60% of the land holders within a proposed area file a
petition.  Before a district can be organized a favor-
able report must be submitted by the Department to the
district court who hears the petition (R.C.M. § 89-
1201).

An irrigation district's power to the use and appor-
tionment of water is set forth in chapter 16 (R.C.H. S
89-1601 to 1617).  Section 89-1603 states that:
     Nothing herein contained shall be deemed to
     authorize the diversion of the waters of any
     river, creek, stream, canal, or ditch from
     its channel, to the detriment of any person
     or persons having an interest in such, river,
     creek, stream, canal, or the waters therein.
Section 89-1606 provides that:
     The use of all water required for the irri-
     gation of the land of any district formed
     under the provisions of this act, together
     with the rights of way for canals and
     ditches, sites for reservoir, and all prop-
     erty required in fully carrying out the
     provisions of this act, is hereby declared
     to be a public use, subject to the regula-
     tions and control of the state in the
     manner prescribed by law; provided, all
     water, the right to the use of which  is
     acquired by the district under any contract
     with the United States, shall be distributed
     and apportioned by the district in accord-
     ance with the acts of Congress and rules
     and regulations of the secretary of the
     Interior, and the provisions of said  con-  •
     tract in relation thereto.

     The board of coitmissioners shall apportion
     the water for irrigation among the lands in
     the district in a just and equitable manner,
     and the maximum amount apportioned to any
     land shall be the amount that can be bene-
     ficially used on said land, and such  amount
     of water shall become and shall be appurte-
     nant to the land, and inseparable from the
     same, but subject to reduction as hereinafter
     provided; provided, however, that any water
     owner of the district shall have the  right
     to  sell or assign for one season any  of the
     water apportioned to him, and not required
     for use upon the land to which such water
     belongs; provided, all water, the right to
     the use of which is acquired by the dis-
     trict under any contract with the United
     States, shall be distributed and apportioned
     by  the district in accordance with the acts
     of  Congress, and rules and regulations of
     the secretary of the interior, and the
     provisions of said contract  in relation
     thereto.   (R.C.M.  S 89-1607).

The  board of commissioners must apportion  waters  in a
just and equitable manner and not  beyond an amount
which  can be beneficially used  (R.C.M.  i 89-1607).   In
the  event of shortage the amount  of water  must  be pro-
portionately reduced  (R.C.M,  §  89-1608).   Any surplus
water  can be sold or disposed of  by the board  (R.C.M.
 5  89-1609).

Whenever a  majority of  landowners who represent one-
third  of the proposed district  desire to form a drain-
age district, they must file a petition in district
court.  Conservancy districts may be created under
Montana statutes § 89-3401  to 89-3449.   These dis-
tricts are organized to provide for the conservation
and development of Montana's water and land resources
(R.C.M. § 89-3409).  Montana is desirous of conserving
water so that it may be utilized beneficially to its
greatest extent.  Conservancy districts are designed
to directly benefit irrigated lands by stabilizing the
flow of water in streams and increasing return flows.

The directors of such a district may withhold delivery
of water if there are any delinquent payments and can
allocate or reallocate unused water (R.C.M. § 89-3414).

6.4  POLLUTION CONTROL

The state or any political  subdivision or agency
thereof, or the United States, or any agency thereof,
may apply to the Department of Natural  Resources and
Conservation to reserve water for existing or future
beneficial use or to maintain a minimum flow, level,
or quality of water throughout the year or at such
periods or for such lengths of time as the Board desig-
nates (R.C.M. § 84-890).

On receiving such an application, the Department of
Natural Resources and Conservation shall proceed to
process the application, as set forth above.  After a
public hearing is held on the matter, the Board shall
decide whether or not to reserve the water for the ap-
plicant.  The Board may not adopt an order reserving
the water unless the applicant established to the sat-
isfaction of the Board:
     a) the purpose of the reservation,
     bj the need for the reservation,
     c) the amount of water necessary for the purposes
        of the reservation,
     d) that the reservation is in the public interest.

If the purpose of the reservation requires construction
of a storage or diversion facility, the applicant shall
establish to the satisfaction of the Board that there
will be progress toward completion of the facility and
accomplishment of the purpose with reasonable diligence
in accordance with an established plan.

What is meant by the public interest is unclear, and is
not defined in the definition section of the statute.
But it is worth noting that the policy of the Montana
legislature recognized the preservation of ecosystems.

Regarding the control of pollution to water resources,
this function is assigned to the Montana Department of
Health and Environmental Sciences.  Under the 1947 Wa-
ter Pollution Control Act of Montana, as amended
(R.C.M. § 69-4801 to 4827) and the 1971 Montana Envi-
ronmental Quality Act (R.C.M. S 69-6501 to 6517), this
Department has authority to prevent and abate pollution
to the state's waters that affect the public health.

One year later, the Montana Pollutant Discharge Elimi-
nation System (M.P.D.E.S.) was adopted and approved by
the Environmental Protection Agency.  The M.P.D.E.S.
requirements are applicable to irrigation return flows
to the extent that they are included under the nation-
al permit system administered by E.P.A. (M.A.C. i 16-
2.14(10)-S14460,
                                                       167

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REFERENCES

Dewsnup, Richard L., and Jensen, Dallin W., A Summary
Digest of State Water Laws, National Water Commission
publication, 1971.

Geraghty, J. J., D. W. Miller, F. Van der Leeden, F.L.
Traise, Water Atlas of the United States. Water In-
formation Center, Port Washington, N.Y., 1973.

Gopala Krishnan, Chennat, A Study of the Economic,
Legal, and Institutional Aspects ofMontana's Water
Resource Development, Montana Agricultural Experiment
Station Bulletin 648, 1971.

Guze, Ronald J.  "Creation of the Department of Natur-
al Resources and Conservation," presented to the 27th
Annual Convention of Montana Water Well Drillers As-
sociation, Feb. 10, 1972, Billings, Montana.

Holje, Helmer, editor, Symposium on Water Law and its
Relationship to the Economic Development of Montana's
Water Resources, Water Resources Research Center,
Montana University Joint, Bozeman, Montana, 1971.

Hutchens, Wells, H. Ellis, J. P. DeBraal, Water
Rights Laws in the Nineteen Western States. Vol. I,
19717 Vol. II, 1974, Misc. Pub. #1206, ERS, USDA,
USGPO, Washington, D.C.

Stone, Albert W., Montana Water Law Problems, Water
Resources Research Center, Montana University, Boze-
man, Montana, 1971.

Stone, Albert W., "Montana Water Rights—A New Oppor-
tunity," 34 Montana Law Review, 57-74, 1973.
                                                       168

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                                               APPENDIX A REPORT 7
                                                    NEBRASKA
 7.1  HISTORICAL  BACKGROUND
 Nebraska  is a  state of  110,540 square miles, receiving
 an annual acreage of 22 inches of precipitation.  Sur-
 face water runoff leaves the state primarily through
 several major  rivers, the Platte, Niobrara, Big Blue
 and Republican  (Geraghty, 1973).  In addition to sur-
 face flows, the  state has extensive ground water sup-
 plies, contained in narrow aquifers contiguous to the
 streams and rivers, and in widespread unconsolidated
 and semi-consolidated aquifers.  The state, which
 claims the fastest growth of irrigated acreage from
 1970 to 1975 (Sheffield, 1975), increasing its irri-
 gated acreage  from 3,490,000 acres in 1965 to 4,430,000
 in 1970,  to 5,340,000 in 1974 (Irrigation Survey, 1974)
 attributes a significant portion of land brought under
 cultivation to the vast ground water supplies.  From
 1965 to 1974,  sprinkler irrigation has increased from
 320,000 acres to 1,498,000 acres.  According to the
 Director, Dept.  of Water Resources, as of mid-1976 the
 total irrigated  acreage has increased to 6.2 million
 acres, with 1.2  million acres irrigated from surface
 supplies  and the remaining 5 million acres requiring
 ground water (Interview with Marion Bell, Director, by
 G. V. Skogerboe  on June 28, 1976).

 Given a slightly larger precipitation rate than its
 neighboring states to the North and West and with
 greater similarity in rainfall  and water supply condi-
 tions to  its neighbors to the East and South, at least
 for the southeastern part of the state, Nebraska's
 early water law  as recognized by the courts followed
 the riparian doctrine.  The state in 1903 refused to
 make the  absolute switch from the riparian doctrine to
 the appropriation system because of the diversity of
 conditions that  existed in the state (Meng v. Coffee,
 67 Neb. 500, 93  N.W. 713, 1903).  The first decision
 contrary  to the  riparian rights doctrine came in
 Cline v.  Stock (71  Neb.  79, 102 N.W.  265, 1905).  In
 this case, the court held that a prior riparian could
 not enjoin a subsequent appropriator from diverting
 water from a stream.  The major movement away from
 the riparian rights doctrine came in HcCook Irrigation
 and Water Power  Co.  v. Crews (70 Neb.  115, 102 N.W.
 249, 1905).In  its decision, the court held that a
 prior appropriator could enjoin a subsequent riparian
 and, in dicta,  that a subsequent appropriator could
 probably  enjoin  a prior riparian.   A suit for damages
 was the sole recourse for the injured  riparian owner.
 Riparians were forced to obtain appropriation permits
 if they desired  to secure their water supply.

 As early  as  1877, the right to  appropriate water by
 diversion and application to a  beneficial  use was
 impliedly recognized (Neb.  Laws, 1877,  168).   The
 riparian theory  is totally misplaced when  applied to
 the western  part of Nebraska, which is  arid and largely
 dependent upon  irrigation to sustain  its  agricultural
 economy.  In 1889,  the Raynor Irrigation  Law (Neb.
 Comp.  Stat.  1899 Ch. 93a, art.  I,  sec.  1)  recognized
 appropriation for specific water courses  and stated
 that for  "all  streams not more  than fifty feet in
width,  the rights of the riparian appropriators are not
effected."  It  would seem,  therefore,  that all  ripar-
 ian rights were abrogated except on very  small  streams.
 The riparian rights  still  in existence  in  Nebraska  are
 governed by  the  following rules:   stream  flow can be
 used only on riparian lands and such  lands are limited
 to those obtained under an  original  patent from the
 government.   Domestic uses  for  which the  entire flow
may be  diverted are  limited to  drinking,  cooking and
watering stock  (Crawford Co.  v.  Hathaw, 67 Neb.  325,

                                                     169
93 N.W. 781, 1903).  To secure a riparian right, the
land must have been in private ownership before 1895
(Wasserburger v. Coffee. 180 Neb. 149, 141  N.W. 2d738,
1966).1The reasonable use is a question of fact
which must be determined by a consideration of all
the circumstances.  Opposite riparians own  the beds
of all streams to the center or thread and  the beds
of lakes to the center (McBride v.  Whitaker. 65 Neb.
137, 90 N.W. 966, 1903, U.S. v. Phillips, 56 F.2d 447
Neb., 1931).  The legislature provided that anyone
owning land on the banks could acquire a water right
by putting the stream flow to a beneficial  use (Neb.
Comp. Stat. c. 93a, 1889).

As was stated earlier, the rights of riparians on
streams less than fifty feet wide were not  affected
by the aforementioned act.  This was later  amended to
apply to streams not more than twenty feet  wide.  A
more comprehensive irrigation law was enacted in
1895 (Neb. Comp. Stat., 1895, 15440-76), and
remains the basic surface water law for the state.
This act created the administrative machinery neces-
sary to administer waters of the state and  to consider
applications to appropriate water.   The water of every
stream not previously appropriated  was declared to be
the property of the public subject to appropriation
for a beneficial use.  Priority in time conferred a
superior right.  Domestic uses were accorded the
highest preference.

The decision in Wasserburger v. Coffee (180 Neb, 149,
141 N.W. 2d 738, 1966), confronted the effects of the
two appropriation statutes in Nebraska on used and
unused riparian rights.  In Wasserburger the plaint-
iffs, who were lower riparian owners, claimed stock-
watering rights as against upper appropriators who
diverted water under permits from the state.  The
dates of the early statutes were of particular
importance in that the plaintiffs claimed ownership
of their lands under patents dating March 27, 1889.
The issue was whether the cut-off date for  riparian
rights was the 1889 act (1889, Ch.  93a, Art. 51), or
the 1895 code (1395, §5440-76).  The court  concluded
that the 1889 act failed to substitute the  appropria-
tion system for the riparian system and that riparian
rights existed in connection with the patents issued
after that date.  The court went on to hold that a
1920 constitutional provision (Neb. Const.  Art. XV,
§4-6) which acknowledged and affirmed the existence
of appropriation rights did not impair vested ripar-
ian rights which were acquired prior to 1895.  The
court, in balancing the interests of the parties,
considered the following:  the relative dates and
priorities of both claimants; the social  value attached
by the law to both riparian and appropriation uses; the
extent of harm to riparian owners;  the practicality of
avoiding harm to both claimants; and the suitability
of the riparians use of the watercourse.  The court
held that the plaintiffs (riparians) were entitled  to
the injunction they sought.  Wasserburger seemed to
express the proposition that riparian rights could
only be claimed in connection with  land patented
before 1895.

The atmosphere was clouded in 1969  by the decision  in
Brummund v.  Vogel  (184 Neb. 415, 168 N.W. 2d 24,
1969).In this case, the plaintiff, a lower riparian
owner,  sought an injunction against an upstream appro-
priator to enjoin  him from constructing a dam which

    1Yeutter, Clayton,  A Legal-Economic Critique of
Nebraska Watercourse Law, Dept.  of  Ag.  Eco.  Report
No.  37,  1965.

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would have diminished the amount of water to the ripar-
ian for stockwatering.  The plaintiff claimed no ripar-
ian rights with a pre-1895 grant and had not permit
from the Department of Water Resources.  Despite these
facts, the court held that the plaintiff had riparian
rights for a reasonable amount of water for domestic
purposes {stockwatering) which were superior to the
defendant's permit.  Reliance was placed on a consti-
tutional provision which gave preference to domestic
uses (Neb. Const. Art. XV, §4-6).  This case seems to
be in direct contradiction to Wasserburger which had
confined riparian rights to pre-1895 grants.

As for ground water, early in Nebraska's history it
appeared to follow the reasonable use theory with little
regulation or control over extractions.  This condition
continued on into the early 1970's, with the exception
of minor ground water legislation being enacted in the
mid-1950's, and a significant ground water code being
adopted in 1963 (N.R.S., §46-635 to 46-655).  Still, a
comprehensive ground water management code was not
enacted until 1975, when Legislative Bill 577 was
passed.  This bill provides, for the first time, broad
powers for controlling ground water pumpage.  Enforce-
ment of the law, of course, may be a different matter.

7.2  SUBSTANTIVE LAW

7.2.1  Property Right in Water

In Kirk v. State Board of Irrigation {90 Neb. 627,
134 N.W. 167, 1912), the Nebraska Supreme Court held
that running water in the state is public! juris and
its use is owned by the public subject to the con-
trols of the state.  The court stated that the state
has a proprietary interest in the water of its streams
and its beneficial use that the state may transfer the
right to use or a qualified ownership subject to lim-
itations and conditions.

Water which flows in a natural  stream is not subject
to private ownership.  Any rights which do attach are
strictly usufructuary rights to take the water from
the stream into physical possession and applying it to
a beneficial use.  Private rights of ownership do not
attach to the corpus of the water as long as it remains
in the stream in its natural state (Heng v. Coffee,
67 Neb. 500, 93 N.W. 713, 1903).   This usufructuary
right is regarded as property and protected as such
(Fairbury v. Fairfaury Hill  and Elevator Co.. 123 Iteb.
588, 243 N.W. 774, 1932).

A right is a power, privilege,  faculty, or demand,
inherent in one person and incident upon another—a
power of free action (Black's Law Dictionary, 4th
Edition).   Coupled with every right is a corresponding
duty.  Duty as it relates to the use of water means a
beneficial use.  Thus, the term usufructuary is limited
by defining one's corresponding duty to the water.  The
word duty is the correlative of a right.  Whenever
there exists a right, there must also be a correspond-
ing duty upon some other persons or upon all persons
generally.

The general rule is that one who diverts water under a
valid right of diversion and use becomes the owner of
the particles of the water.   The right which an appro-
priator acquires is a private property right which he
can dispose of as he would other private property
(Crawford v. Hathaway. 67 Neb.  325, 93 N.W. 781, 1903).

7.2.2  Acquisition of Right

Surface--
Appropriative rights, basically,  are governed by stat-
ute.  An appropriation can be defined as a state
administrative grant that allows the use of a specific
quantity of water for a specific beneficial purpose if
water is available in the source free from the claims
of others with prior appropriations.  The right is
initiated by an application for a permit.  The place
of use is not restricted to riparian land or even to
the watershed.  The right may be sold and its use or
place of use changed.  It may cease to exist if it is
not used {Trelease, 1974, p. 11).

     An appropriation of water flowing on the
     public domain consists in the capture, im-
     pounding, or diversion of it from its
     natural course of channel and its actual
     application to some beneficial use (Black's
     Law Dictionary, 4th Edition).

The appropriator is entitled to a continuing right to
the use of such waters that have been appropriated,
but not beyond that reasonably required and actually
used (Arizona v. California. 565 Ct. 848, 298 U.S.
558).

To obtain a permit an application must be filed with
the Department of Water Resources.  The following in-
formation must be furnished to the Department by an
appropriation applicant:  name and address, the
amount of water desired, the source, the location of
the diversion works, estimated time of completion of
the works, and the purpose of the appropriation.  If
the purpose is for irrigation, a description of the
land and the amount of land to be irrigated must be
included and an estimation of when the water can be
applied for beneficial purposes (R.R.S.N.
 46-233).  The application is then recorded and is
examined for patent defects.  If found to be defec-
tive, the application is returned to the applicant
who has thirty days in which to refile the applica-
tion in order to retain the priority date of the
original filing.

The applicant must file a map or plat with the Depart-
ment which shows the point of diversion and all struc-
tures actually constructed or proposed within six
months after the approval of the appropriation peti-
tion.  If this procedure is not followed, the appro-
priation is forfeited (N.R.S. §46-237).  Construction
must begin within six months after approval of the
application and must be pursued "vigorously, dili-
gently and uninterrupted" (R.R.S.N.  46-238), and a
report must be furnished to the Department within
six months which shows the remaining work.  At least
one-tenth of the construction work must be completed
within one year.  When the water right is perfected
it relates back to the date of the filing of the
application.

Springs, tributary or natural surface watercourses
are controlled by the same method as watercourses.  A
watercourse is defined as any depression or draw two
feet below the surrounding lands having a continuous
outlet to a stream of water, or river or brook (R.R.
S.N.  31-202).  The Nebraska Supreme Court has de-
clared that a watercourse must be a stream; that there
must be a definite channel flowing in a particular
direction, although the flow need not be constant and
it must have sides and banks (Pyle v.  Richards, 17
Neb. 180, 22 N.W. 370, 1885; Jack v. Teegarden. 151
Neb. 309, 37 H.W. 2d 387, 19491!Watercourse law is
applicable to both artificial streams (or drainage
ditches) and natural  streams flowing in natural or
artificial channels (Neb. Laws c. 277, pp.  832-33,
1963).   Therefore, the owner of lands upon which a
spring is located cannot use or control  those waters
to the detriment of lower riparians or appropriators
in possession of a valid permit (Brummund v. Vogel,
                                                      170

-------
184 Neb. 415, 168 N.W. 2d24, 1969).  Springs which do
not form or contribute to a watercourse are treated as
diffused surface waters.  The owner of such a spring
may change the course of the spring and keep the waters
for his own use (Rogers v. Petsch, 174 Neb. 313, 117
N.W. 2d771, 1962).

The construction or maintenance of a reservoir must be
preceded by the filing of an application with the
Department of Water Resources (R.R.S.N. 46-241(i).
Upon approval of the application, an applicant is
authorized to impound waters which have not been
appropriated or in need of immediate use (R.R.S.N. 46-
241(1)). Reservoir owners are responsible for all dam-
ages which arise from breakage of dams, leakage and/or
overflow (R.R.S.N. 46-241(2)). All dams must be in-
spected once a year by the Department of Water
Resources (R.R.S.N. 46-277 and 278), who can require
any repairs necessary to keep them safe (R.R.S.N.
46-277 and 278).  Once the reservoir is complete, a
separate application must be filed for a permit to
place the stored waters to their intended use (R.R.S.M,
46-242).

Ground Water—
Ground water is defined as water which occurs (moves,
seeps, filters, or percolates) through the ground
under the surface of the land (R.R.S.N. 46-635).  A
permit is required to pump ground water from pits with-
in fifty feet of the bank of any natural stream (R.R.
S.N. 46-636).  Ground water may be transported outside
of the state if the Department determines that the
withdrawal is reasonable, not contrary to principles
of conservation or otherwise detrimental to the public
welfare— provided the foreign state will also grant
reciprocal privileges to Nebraska  (R.R.S.N. 46-613.01).

Ground water policy is set forth in Section 46-601,
which states:

    The Legislature finds, recognizes and declares
    that the conservation of ground water and the
    beneficial use thereof are essential to the
    future well-being of this state.  Complete
    information as to the occurrence and the use
    of ground water in the state is essential to
    the development of a sound ground water pol-
    icy.  The registration of all wells, except
    wells used solely for domestic purposes, in
    this state should be required.

Regulations regarding wells are set forth in Section
46-602, requiring that:

    (1) the owner of each well, except wells used
    solely for domestic purposes, completed in this
    state shall register such well with the direc-
    tor within thirty days after the completion of
    such well.  Registration shall be in such form
    as  the director may direct, and shall contain
    a statement of (a) the location of such well,
    (b) the date of its completion, (c) the in-
    tended use of such well, (d) the size of such
    well, (e) the actual capacity of such well
    expressed in gallons per minute, and (f) such
    additional information conformable to the
    statement of purpose contained in section
    46-601 as the director might require;  provided
    that all wells for which a permit has been or
    in  the future is granted by the Department of
    Water Resources under sections 46-638 to 46-650,
    shall be exempt from the provisions of this
    section,
    (2) The registration, referred to in subsection
    (1) of this section, shall be  in triplicate and
     it shall  be  accompanied  by three copies of
     the certificate  of the well driller required
     by section 46-603.
     (3) Whenever any owner of a registered well
     shall  abandon such well, he shall properly
     plug or cap  the  same  in  accordance with the
     rules and regulations of the  Department of
     Water Resources  and within sixty days give
     written notice to the Department of Water
     Resources of such abandonment.  When any
     owner of an  abandoned well replaces such
     well he shall, within thirty  days after
     the completion of such replacement well,
     give notice  to the department by filing
     in the office of the  department completed
     well registration and well driller certi-
     ficate forms, in triplicate,  for the replace-
     ment well.   No fee shall be collected for
     filing notice of abandonment  or for the
     registration of  the replacement of a regis-
     tered well.

Nebraska statutes provide  for preferences in ground
water use.  Top priority in the use of underground
water is given to domestic uses (R.R.S.N. 46-613).
Domestic use of ground water  means uses required for
human needs as it relates  to  health, fire control,
and sanitation and includes uses for domestic live-
stock as related  to normal farm and ranch operations
(R.R.S.N. 46-613).

In 1975, Legislative  Bill  577 was  enacted to attack
the problem of ground water management.  The provi-
sions of this bill in conjunction  with the creation
of 24 Natural Resource Districts  (NRD) covering the
state of Nebraska  (R.R.S.N.   2-3201 to 2-3272) places
the state in good position to ultimately regulate
and manage its ground water  supplies.  The NRD's
through their local boards of directors and  supervi-
sion by the State Natural  Resources Commission, have
fairly broad powers in planning and development of
the land and water resources  within their boundaries.
L.B. 577 in conjunction with  the NRD's, and  adminis-
tered by the Department of Water Resources,  provides
in summary (Sheffield, 1975):
     1.  Any unregistered  well with a pumping capacity
     of 100 gpm can be shut down.
     2.  In areas with declining ground water levels,
     the NRD can recommend to the  Department of Water
     Resources that the area  be designated a control
     area.  The Department must make  a determination
     if such action is necessary,  and if so, institute
     controls necessary.
     3.  In control areas, all  new wells must first
     be granted for a permit  and thereafter  abide by
     rules of withdrawal for  the area.
     4.  The Director of the  Department of Water
     Resources can act to  designate a control area if
     the NRD's fail to do  so.
     5.  The NRD's must adopt rules to prohibit sur-
     face runoff of water  derived  from ground water
     irrigation.   The NRD's can also  determine the
     amount and time  of ground water withdrawal,
     adopt rotation patterns  of ground water use  in
     the control  area, adopt  well  spacing require-
     ments and any other rules  necessary to  properly
     allocate, manage and  administer  the ground water
     in control areas.

Prescriptive Water Rights—Appropriation rights may be
acquired by prescription when there has been an adverse
continuous use for a  period of ten years.

Preferences—When the water of any natural stream is
not sufficient for the use of all  those desiring  the
                                                      171

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use of the same, those using the water for domestic
purposes have preference over other uses and agricul-
tural uses have preference over uses for manufacturing
purposes (N.R.S.N. 46-204).

7.2.3  Adjudicating Water Rights

Adjudication procedure is established by statute which
allows the Department of Water Resources to initiate
an administrative proceeding in order to declare water
rights forfeited for three years nonuse.  All adjudi-
cations are final unless appealed.  Water use conflicts
are resolved in court by private parties, which is the
chief means utilized in such resolution.

7.2.4  Conditions of Use

Beneficial  Use—
Beneficial  use is referred to indirectly in Nebraska
Revised Statutes Section 46-204:  "The right to divert
unappropriated waters of every natural stream for ben-
eficial  use shall never be denied."  It can, however,
be considered the basis, the measure and the limit of
the right to use appropriative waters.  Priority of
appropriation allows a superior right to divert as
between those using the water for the same purposes.

It was decided In Lackey V. Gering and Fort Laramie
Irrigation District (129  Neb. 48. 260 N.W. 568.
1935) that an appropriation is not complete until the
water has been applied to beneficial use.

The duty of water from the natural flow of streams for
irrigation is limited to 1 cfs/70a, and not more than
3 acre-feet each year for each acre of land (R.R.S.N.
46-231).  The amount used is not to exceed the least
amount of water that is necessary for the production
of crops according to principles of good husbandry.

As previously discussed, the right to divert unappro-
priated waters from every stream for a beneficial use
is not to be denied (R.R.S.N. 46-204).  Restrictions
are inapplicable to storage waters or to minor appro-
priations.   Further, the above statute is inapplicable
to those vested rights which were created prior to the
statutes enactment (Enterprise Irrigation District v.
Willis. 135 Neb.  827, 284 N.W. 236, 1939).

Prior to the first of April  of each year, a list of
all lands to be jrrigated under each appropriation
must be submitted to the Department of Water
Resources.   The purpose of this requirement is to in-
sure that appropriators stay within the maximum quant-
ity limitations prescribed by statute, to furnish the
Department with evidence for subsequent forfeiture
proceedings and to permit the Department.to estimate
potential use for the season which allows pre-planning
to minimize waste (R.R.S.N.  46-262).   Most irrigators
circumvent the forfeiture potential  by reporting the
maximum acreage each year because the Department does
not have the funds to insure that this reported acre-
age is actually irrigated (Dewsnup,  A Summary Digest
of State Water Laws).

The purpose of the law is to provide equity in the use
of the water by riparian owners, by requiring each to
exercise his rights reasonably and with due regard to
the right of other riparian  owners (Meng v.  Coffee,
67 Neb.  500,  93 N.W. 713, 1903).  The question of what
constitutes reasonable use is to a large degree one
fact:   the  condition of soil, climate and rainfall  in
any given locality.   These conditions when  proven may
be considered elements of fact,  without affecting the
general  rule.   In determining whether an upper ripar-
ian's  use of water for irrigation is  reasonable,  certain
factors must be taken into consideration.   These in-
clude:  1) the size, situation and character of the
stream; 2) the uses  to which its waters may be put
by other riparian owners; 3) the season of the year;
and 4) the nature of the region (Ibid.).

Certain activities, however, are clearly unreasonable.
The upper owner, in using the water for irrigation,
may neither waste, needlessly diminish, nor wholly
consume it, to the injury of other owners.  Further-
more, the upper owner may not prevent reasonable use
of the waters by downstream users (Ibid.).

In Farmer's Canal v. Frank (72 Neb. 136, 100 N.W.  286,
1904), the court held that:

     It is the evident purpose of the law...to
     enforce and maintain a rigid economy in the
     use of the waters of the state.   It...is the
     policy of the law in all the arid  states...to
     require and enforce an economical  use of the
     waters of the natural streams.  The urgent
     necessities of the situation compel this
     policy by the very force of circumstances.
     One of the main objects of the system of
     administration of public waters  prescribed
     throughout the arid regions is to  restrain
     unnecessary waste, and to provide  for an
     economic distribution of that element so
     necessary to the very existence  of agricul-
     ture in those regions.  This is  also  the
     policy of the state of Nebraska  in its reg-
     ulation of the use of the waters of the state,
     and the law should be construed  so as to ef-
     fect a reasonable, just and economic  distri-
     bution of water for irrigation purposes.  The
     court will take judicial notice  of the fact
     that there are hundreds of acres within the
     state susceptible to irrigation  to every acre
     which there is water enough to supply, and it
     is obvious that a construction of the law that
     will best distribute the use of  the waters is
     to be preferred, if such construction is not
     inimical to any constitutional inhibitions or
     limitations.

Waste—
The waste of water can be considered  as the opposite
of using the water beneficially.  Waste water is water
running off irrigated lands which has not  been con-
sumed either through being absorbed into the soil  or
evaporated into the atmosphere.  A fundamental goal
of public policy in the field of water resources is
to minimize the productivity, output, or efficiency—
these are synonyms—of the nation's water resources.
Maximum efficiency is achieved when all productive
resources are being employed in their highest valued
uses (Meyers and Posner, 1971, p. 2).

The owners of irrigation ditches or canals must return
unused water from such ditch or canals  to  the stream
from which such water was taken with  as little waste
as possible (R.R.S.N. 46-265).  If an irrigator re-
ceives more water than he is entitled to,  he must
attempt to prevent such excessive distribution by
notifying the owner of the canal which provides his
water supply (R.R.S.N. 46-262).

7.2.5  Manner in Which Rights May Be  Affected

Forfeiture and Abandonment —
An appropriation right may be lost in a number of
ways:  1) abandonment, or intentional relinquishment
of such right; 2) statutory forfeiture for nonuse
regardless of intent; 3) nonuse of water rights for
ten years is deemed to be a forfeiture,
                                                     172

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 regardless  of  intent  (State  v.  Nielsen. 163 Neb. 372,
 79 N.W.  2d  721,  1956).   If an appropriation has not
 been  used for  beneficial  purpose the Department of
 Water Resources  may,  after a show of cause hearing,
 declare  such appropriation forfeited.  This is true of
 appropriations which  have not been used for three
 years.   Appeal of this decision is to the State Sup-
 reme  Court.

 The Department of Water  Resources is to maintain sur-
 veillance of the condition of irrigation ditches and
 the condition of appropriations.  If a forfeiture pro-
 ceeding  seems justified,  the Department serves notice
 of the show cause hearing.   The Department is not ade-
 quately  funded to gather  this information and conduct
 the hearings which are necessary to bring its permits
 up-to-date.  It  seems that the  Department does not
 object to irrigators withdrawing quantities in excess
 of their appropriations so long as no other appropria-
 tor is thereby injured.   This is justified on the
 grounds  that existing surplus flows would be lost.

 Adverse  Possession—
 In order to acquire a water  rights by adverse posses-
 sion, the use must be open,  not rious and continuous
 for a period of  10 years  (Oliver v. Thomas. 173 Neb.
 36, 112, N.W. 2d 525, 1961).

 Condemnation--
 Condemnation is a process by which the property of a
 private  owner is taken for public use but upon the pay-
 ment of  just compensation.   Nebraska statutes declare
 that:

      All persons desirous of constructing a ditch,
      building a dam or dams for the purpose of
      storing water for irrigation, evaporation, and
      water power purposes,  or  conveying water to be
      applied to domestic, agricultural or any other
      beneficial use, or any dam, dike reservoir,
      wasteway, subterranean  gallery, filtering
      wells or other works for  collecting, cleansing,
      filtering, retaining,  or  storing water for any
      such use, or to enlarge any such ditch, conduit
      or waterworks, or to change the course thereof
      in any place, or to relocate the headgate or
      to change the point at which the water is to
      be taken into such canal  or other waterworks,
      or to enlarge any ditch,  canal  or other works, or
      to construct any ditch, or to lay pipes or
      conduits for conveying or distributing water
      so collected or stored to the place of using
      the same, or to set, place or construct a wheel,
      pump, machine or apparatus for raising water
      out of any stream, lake, pond or well, so that
      the same may flow or be conveyed to the place
      of using or storing the same,  and who shall
      be unable to agree with the owner or claimant
      of any lands necessary to be taken for the site
      of any such works or any part thereof, touching
      the compensation and damages,  shall  be entitled
      to condemn the right-of-way over or through the
      lands of others, for any and all  such purposes
      (N.R.S. §46-246).

The Nebraska Supreme Court has held that the right of
eminent domain cannot be exercised for purely private
purposes, such as by an Individual  for irrigation of
his own  land (Vetter v. Broadhurst.  100 Nebr.  356,
 160 N.W.  109,      -  —
Hickman v. Loup River Public Power District (173 Neb.
298, 113 N.W. 2d 195, 1962) provided that, where the
owner of a superior right sought to acquire water which
was being used for power purposes, eminent domain pro-
ceedings may be utilized.
     Whenever the directors  of an  irrigation dis-
     trict vote to acquire and appropriate by the
     exercise of the power of eminent  domain any
     water being used for power purposes, or when-
     ever any person, firm,  association, corporation
     or organization seeks to acquire  any water
     being used for power purposes  and shall be
     unable to agree with the user  of  such water
     for power purposes upon the compensation to
     be paid to such power user, the procedure to
     condemn property shall  be exercised in the
     manner set forth in sections  76-704 to 76-
     724 (R.R.S.N. 70-672).
Enforcement of Beneficial Use or Waste Concepts--
An appropriator is limited to  the quantity of water
specified in his permit subject  to a  beneficial use
and limited by the duty of water (R.R.S.N. 46-231).
If the appropriator fails to apply the specified
quantity in his permit to a beneficial  use the unused
water is subject to the provisions of the forfeiture
statute.

7.2.6  Legal Incentives and Disincentives for More
       Efficient Water Use

Irrigation Return Flow--
A downstream senior appropriator is entitled to have
the stream flow in a sufficient  quantity to satisfy
his appropriation.  An upstream  junior appropriator,
therefore, cannot use water if that use would deprive
the downstream senior of his appropriated quantity.
In Cary v. Cochran (Cary v. Cochran,  138 Neb. 163,
292 N.W. 239, 1940), however,  the court stated that,
if all available water in the  stream  would be lost
before its arrival at the headgate of the downstream
canal, it would be an unjustified waste of water to
attempt delivery.

Seepage is considered to be abandoned by the original
appropriator when it is permitted to  return to its
natural channel if the appropriator has the requisite
intent to abandon it.  Recapture and  reuse is per-
mitted if the seepage waters  have not been abandoned.
Once abandoned, it can nevertheless be recaptured and
reused if no new rights have  been created in the in-
terim (Ramshorn Ditch Co. v.  U.S.. 269 Fed. 80, 8th
Circ., 1920).  However, nonuse for a  period of ten
years is deemed to be a forfeiture regardless of
intent.  The Supreme Court in  U.S. v. Haga (276 F.
41, D., 1921) stated that return flows are subject
to appropriation downstream when they are abandoned.

Provisions for Transfer of Water Rights and
Diversions—
There is nothing in the code which authorizes trans-
fers of irrigation permits to  other types of uses.
The only dependable method of  acquiring a water
right is to purchase the land  to which the permit
attaches (R.R.S.N. 46-233).2

The Nebraska legislature enacted laws which provided
that all appropriations for irrigation which were
made after 1895 are inseparably  appurtenant to speci-
fic land.  However, appropriative rights which were
acquired before 1895 were not  required to be
attached to specific land and  could be transferred
or assigned for use on other  property. Any change in
the locational use of previously appropriated waters
could after 1895 only be made  under the permission and
     2 See Oeltjen, Harnsberger,  Fischer,  "Interbasin
Transfers:  Nebraska Law and Legend,"  Nebraska  Law
Review. 87, 1971.
                                                       173

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subject to the administrative control of state irriga-
tion authorities (U.S. v. Tilley, 124 Fed. 2d 850, 8th
Circ., 1920).

7.2.7  Waste Water Disposal and Drainage

Disposal of Waste--
In Nichol v. Yochum (173 Neb. 298, 113 N.W. 2d 195,
1962), the Nebraska Supreme Court adopted the common
enemy rule with regard to diffused surface waters.
The following rules have been adopted regarding dif-
fused surface waters:  1) Diffused surface waters may
be collected by the landowner into a pond or by chan-
neling the water into a natural drain, or the land-
owner may change the course of the diffused surface
waters without liability to a lower landowner;
2) Diversion of such waters may not be onto lower
lands except in draws, depressions, swales, or other
drainageways through which such waters would have
flowed by nature and once collected in natural drain-
ageways the lower landowner may not dam, divert, or
repel such waters without incurring liability to the
upper landowner.3

      Owners of land may drain the same in the
      general course of natural drainage by con-
      structing an open ditch or tile drain, dis-
      charging the water therefrom into any natural
      watercourse or into any natural depression
      or draw, whereby such water may be carried
      into some natural watercourse; and when such
      drain or ditch is wholly on the owner's
      land, he shall not be liable in damages
      therefor to any person or corporation
      (R.R.S.N. 31-201).

7.3  ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS

7.3.1  State Water Agencies

Responsibility for the administration of Nebraska's
system of water laws is placed in the hands of the
Department of Water Resources.1*  The Department may
adopt procedural rules and conduct public hearings on
petitions regarding applications for water rights.  It
also hears and settles complaints.  Witnesses may be
compelled to attend and the Department may take depo-
sitions and examine the books and records of affected
parties.  The primary object of the Department primary
role is the supervision of the appropriation, distri-
bution and diversion of water.

The Department of Water Resources acts upon all appli-
cations to store or appropriate water (R.R.S.N. 46-208
to 214).  Applications will be approved if unappropri-
ated water is available and if approval would not be
detrimental to the public welfare (R.R.S.N.'46-235).
Upon perfection of the water right, there is a relation
back to the date the application was filed establish-
ing its priority date (R.R.S.N. 46-205).  Though the
Department's authority is quasi-judicial in nature, it
is not a judicial  body exercising judicial functions
(Crawford v.  Hathaway, loc. cit.j.

The Department must also determine and record permit
priorities (on a "first in time first in right" basis)
      3For an excellent discussion of diffused surface
water law, see Yeutter, 1963).

      ''Trelease, Frank, J., "Reorganization of Water
and Land Resources Agencies of the State of Nebraska—
A Proposed Department of Natural Resources," 1969.
and determine the amount of appropriations which
should not be more than the capacity of the diversion
works.

7.3.2  Judicial Bodies

Nebraska has no special water courts.  Department  of
Water Resources decisions are appealed to the Nebraska
Supreme Court.

7.3.3  Water Users and Their Organizational Structure

Individuals—
To obtain an appropriative right, there must be an
actual diversion (taking) of the water from a channel.
An appropriation of the water consists in the capture,
impounding, or diversion of it from its natural course
or channel and its application to some beneficial
use (Black's Law Dictionary, 4th edition).  The
appropriator is entitled to a continuing right in  the
use of waters that have been appropriated, not beyond
that reasonably required and actually used (Arizona
v. California, loc. cit.).  An appropriation is an
administrative grant allowing for the use of a quant-
ity of water for a specific beneficial purpose.

The requirement that there must be an actual diversion
(taking) relates to the need to perfect a property
right and to obtain an exact measurement of the prop-
erty.  To observe one's "property" rights in the
water an appropriator must not discontinue his use
for three consecutive years.  To protect this property
right, an appropriator continues to divert and apply
the appropriation to preserve that quantity of the
appropriation.  The result is the use of a greater
quantity of water than is needed in order to preserve
the property right in a quantity of water.  Owners
of an irrigation ditch or canal are required to return
unused water with as little loss as possible to the
stream from which such water was taken (R.R.S.N. 46-
265).

Districts —
There are 24 multipurpose districts in Nebraska
known as Natural Resources Districts (NRD).  These
districts are responsible for activities carried out
by soil and water conservation districts, watershed
districts, watershed planning boards, and adivsory
watershed improvement boards (R.R.S.N. 2-3201 to
3262).5

The constitutionality of public irrigation districts
was upheld in Board of Directors of Alfalfa Irrigation
Districts v. Collins (46 Neb. 411. 64 N.W. 1086, 1895).
Nebraska statutes also authorize the organization  of
reclamation districts (R.R.S.N. 46-501 to 587). Non-
profit mutual irrigation companies may also be organ-
ized and are authorized to issue bonds, borrow and
mortgage their property and franchises (R.R.S.N. 46-
269 to 587).  Water users associations are sanctioned
to contract with the Federal Government for reclama-
tion funding (R.R.S.N. 46-272).

Sections 46-101 to 46-1.111 are noted to be construed
so as not to repeal or in any way modify the provisions
of any other law relating to the subject of irrigation
or water commissioners.  These sections do not author-
ize any person to divert the waters of any river,
creek, stream, canal, or ditch from its channel to the
detriment of any person having interest in such river,
creek, stream, canal, or ditch, or any other waters
     5See Radosevich and Skogerboe, 1977, Appendix A,
Nebraska, Section 7.4.1 for discussions of NRD's.
                                                       174

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of the state, unless previous compensation be discovered
and paid for under the laws of the state which authorizes
the taking of private property for public use (R.R.S.N.
46-159).

Section 46-160 states that irrigation districts are
liable in damages for negligence in delivering or fail-
ure to deliver water to the users from its canal  to the
same extent as private persons and corporations.   Pro-
vided, such districts shall not be liable unless the
party suffering damages by reason of negligence or
failure shall within thirty days after the negligent
acts are committed or such districts shall fail to
deliver water, serve notice in writing to the chairman
of the board of directors of the district, setting forth
the acts which were committed or the failure of perform-
ance of the duties by the district.  This notice must
claim negligence or an omission by a statement that he
expects to hold such district liable for those dam-
ages which may result.  This action must be brought
to the board within one year from the time the
action occurred.

The purpose of reclamation districts is set forth in
Section 46-501:

     It is hereby declared that to provide for
     the conservation of the water resources of
     the State of Nebraska and for the greatest
     beneficial use of water within the state,
     the organization of reclamation districts and
     the construction of works as herein defined
     by such districts are a public use and will:
     (1) be essentially for the public benefit
     and advantage of the people of the State of
     Nebraska; (2) indirectly benefit all indus-
     tries of the state; (3) indirectly benefit
     the State of Nebraska in the increase of its
     taxable property valuation; (4) directly ben-
     efit municipalities by providing adequate
     supplies of water for domestic use; (5)
     directly benefit lands to be irrigated from
     works to be constructed; (6) directly bene-
     fit lands now under irrigation by stabiliz-
     ing the flow of water in streams and by
     increasing flow and return flow of water to
     such streams by replenishing and maintain-
     ing subsurface supplies; and (7) promote
     the comfort, safety and welfare of the
     people of the State of Nebraska.

The policy relating to reclamation districts is set
forth in Section 46-502:

     It is therefore declared to be the policy
     of the State of Nebraska to:  (1) control,
     make use of and apply to beneficial use all
     available waters of this state to a direct
     and supplemental use of such waters for
     domestic, manufacturing, irrigation, power,
     and other beneficial uses; (2) obtain from
     water of the state the highest benefit for
     domestic uses and irrigation of lands in
     Nebraska; (3) cooperate with the United
     States government in the construction and
     financing of works in the State of Nebraska
     as herein defined and for the operation and
     maintenance thereof; and (4) promote the
     greater prosperity and general welfare of
     the people of the State of Nebraska by
     encouraging the organization of reclama-
     tion districts as provided in sections 46-501
     to 46-573.
The county board of any county can locate  and  con-
struct, straighten, widen,  alter,  or deepen  any
ditch, drain or watercourse,  when  it is  necessary
to drain any lots, lands, public or corporae road,
or railroad, and when it will  be conducive to  the
public health, convenience  or welfare (R.R.S.N.
31-101).

7.4  POLLUTION CONTROL

The Environmental Protection  Act  (1971)  established
an environmental control council to control  air,
water and land pollution (R.R.S.N. 81-1501 to  1532).
Administration is with the  Department of Environ-
mental Control which has the  authority to  adopt water
quality standards for all waters within  the  state.
A permit system has been established and a reasonable
time is given polluters to  comply  with the water
quality standards set by the  Department.

REFERENCES

Dewsnup, Richard L., A Summary-Digest of State Hater
Laws, National Water Commission Publication,
Washington, D.C., 1973.

Geraghty, J., D. Miller, F. Van der Leeden,  and
F. Troise, Water Atlas of the United States, Water
Information Center, Port Washington, H.Y., 1973.

Meyers and Posner, Market Transfers of Water Rights:
Toward an Improved Market in  Water Resources,  Legal
Study No. 4, National Water Commission,  Washington,
D.C., 1971.

Oeltjen, J.C., R.S. Harnsberger,  R.S. Fisher,
"Interbasin Transfers:  Nebraska Law and Legend,"
51 Nebraska Law  Review 87,  1971.

Radosevich, G.E., G.V. Skogerboe,  Achieving  Irriga-
tion  Return Flow Quality Control  Through Improved
Legal Systems, U.S.E.P.A., Robert S. Kerr Environ-
mental  Res. Lab., Ada, Okla., 1977.

Sheffield, L., "New Nebraska Water Law," Irrigation
Age,  p. 27, Sept. 1975.

Trelease, Frank  J., Water Law Resource Use and
Environmental Protection, 2nd Ed., 1974.

Yeutter, C.K., Diffused Surface Water Law in Nebraska,
Report  No. 26, Dept. of Agr.  Econ., Univ.  of Neb.,
1963.

Yeutter, C.K., A Legal Economic Critique of Nebraska
Watercourse Law. Report No. 37, Dept. of Agr.  Econ.,
Univ. of Neb., 1965.

Yeutter, C.K., Water Administration...A Suggested
Model,  Report No. 46, Dept. of Agr. Econ., Univ. of
Neb., 1966.
                                                      175

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                                              APPENDIX A REPORT 8

                                                    NEVADA
8.1  HISTORICAL BACKGROUND

Nevada is an arid state of 110,540 square miles re-
ceiving an average annual precipitation of 9 inches.
Initially, water users diverted in the mid-1880's for
mining purposes.1  Then, as many miners became dissil-
lusioned with their meager findings, they turned to
irrigating lands near river beds.  By 1905, there was
little land left adjacent to watercourses to enable
low cost irrigation, and the farmers had to turn to
more sophisticated diversion and irrigation practices.
Congress had just passed the Reclamation Act of 1902,
and Nevada became the first State to have a project
constructed under the new program—the Newlands
Project near Fallon, Nevada.

Surface waters continued to be developed, but by 1950
water users began turning to ground waters since all
surface waters were appropriated.  In 1969 the total
water withdrawals are estimated at 4.6 million acre-
feet, which includes 490,000 acre-feet of ground water,
a ten-fold increase since 1950.  Of this total, approx-
imately 3,330,000 acre-feet per year was diverted for
agriculture, including about 330,000 acre-feet with-
drawn from ground water. These diversions irrigated
approximately 830,000 acres of land.  However, due to
the wide fluctuation in annual moisture, the total
irrigated acres can range from 1,000,000 acres in a
wet year to 600,000 acres in a dry year (Water for
Nevada. Vol. 2, p. 15).

Given limited water resources, the State has been
mindful of the need for proper and adequate control
over water allocations and use since its admission
into the Union in 1864.  Presently, the appropriation
doctrine is the exclusive doctrine governing the
acquisition and use of water in Nevada.   This doctrine
was first recognized in 1866 when the Nevada Supreme
Court applied the appropriation doctrine where the
parties involved based their claims on prior right
and the use of water (Lobdell v.  Simpson, 2 Nev. 274,
1866).

The riparian doctrine was recognized briefly in Nevada
(Vansickle v. Haines. 7 Nev. 249, 1872;  Dal ton v.
Bowker. 8 Nev.*190, 1873; Lake v. Tolles. 8 Nev. 285,
1873).  However, in 1885 the Nevada Supreme Court
stated the riparian doctrine did not serve the needs
and wants of the people of the area and that develop-
ment could only be accomplished under the doctrine of
prior appropriation (Jones v. Adams, 19,Nev.  78, 6 P.
442, 1885).  The court expressly overruled its 1872
decisions which recognized the riparian doctrine and
has subsequently repeated and reaffirmed this posi-
tion (Reno Smelting Mill and Reduction Works y.
Stevenson. 20 Nev. 269. 21 P. 317. 1889; WalsV v.
Wallace, 26 Nev. 229, 67 P. 914,  1902; and United
States v. Walker River Irr. Pi St.. 11 Fed. Supp. 158,
D. Nev., 1935).

Formal water laws were slow to materialize in Nevada,
and only general provisions were enacted through
iSee, Water for Nevada. Vol. 2—Estimated Water Use
in Nevada and Vol. 3—Nevada's Water Resources. Jan.
1971 and Oct. 1971, respectively, prepared by State
Engineers Office, Carson City, Nevada, for a more ex-
tensive discussion on the State's water resources and
their use.
1899.2  County Commissioners were granted power to
approve applications for water rights in 1899 (Nev.
Laws 1899, Ch. XCVII) until this power was transferred
in 1905 to the office of State Engineer which had only
been created two years before (Nev. Laws 1903, Ch. IV).
The first code was enacted in 1913 (Nev. Laws 1913,
Ch. 140) and has been subsequently amended and ex-
panded to enable the State to effectively insure the
efficient use of water.

In 1939, ground water was declared public property and
the use subject to acquisition of a permit from the
State Engineer (N.R.S. 5534.030).  During the past
decade many changes have taken place.  Provisions for
forfeiture and abandonment of  ground water rights were
amended in 1967 (N.R.S. §534.090).  Due to the in-
creased demand on the State's water resources and the
need to plan and manage future developments of water,
the Nevada legislature directed the State Engineer in
1969 to conduct studies for a water resources plan
(N.R.S. 5532.165) and during the 1973 legislature,
he was required to complete the comprehensive water
resources plan and make preparations for presenting
it to the 1975 legislature sessions (N.R.S. §554.1).
Also in 1969, recreation uses of water were declared
to be beneficial uses.
8.2  SUBSTANTIVE LAW

8.2.1  Property Right in Water

The statutes  of Nevada provide that:

     The water of all sources of water supply
     within the boundaries of the state, whether
     above or beneath the surface of the ground,
     belongs to the public (N.R.S. 5533.025).

     Subject to existing rights, all such water
     may be appropriated for beneficial use as
     provided in this chapter and not otherwise
     (N.R.S. §533.030).

Based upon these provisions and the statutory sections
proceeding the procedure to be followed to appropriate
water for a beneficial use, a right is created with
distinct and definite characteristics.  The water
right is a real property right (Nenzel v. Rochester
Silver Corp.. 50 Nev. 352, 259 P. 632, 1927; Adams-
HcGill v. Hendrix, 22 Fed. Supp. 789, D. Nev., 1938)
and as such is a valuable right (In re Barker Creek
and Its Tributaries  [Scossa v. Church], 46 Nev. 254,
205 P. 518, 1922).

This real property right feature must be distinguished
from the right one acquires in the water itself.  Water
flowing in a natural stream is not subject to private
ownership and any private rights which attach are usu-
fructuary rights to take the water into physical pos-
session and apply it to a beneficial use (In re Manse
Spring and Its Tributaries. 60 Nev. 28, 108 P. 2d 311,
1940)7Private rights of ownership do not attach to
the corpus of the water as it remains in the stream
in its natural"state (Application of Filippini, 66
Nev. 17, 202 P. 2d 535, 1949).
2See Hutchins, Wells A., The Nevada Law of Water
Rights, published by State Engineer, Carson City,
Nevada, 1955.
                                                      176

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The general rule, then, is that a diversion of water
under a valid right of appropriation and its applica-
tion to beneficial use constitutes ownership of par-
ticles of water.  Once water has been diverted and
taken into distribution works it takes on the charac-
teristic of personal property.

8.2.2  Acquisition of Right

General--
An appropriation can only be initiated by filing an
application and securing the approval of the State
Engineer.3  Such application shall be limited to water
of one source for one purpose, although individual
domestic use may be included in any application with
the other use named (N.R.S. §553.330).

The application may be submitted by any corporation
authorized to do business in Nevada or any person
(defined as a corporation, an association, the United
States, and the state, as well as a natural person—
N.R.S. §533.010), or any citizen of the U.S. or any
person over 21 years old who has legally declared his
intention to become a citizen of the U.S.  The appli-
cation shall be submitted and the permit issued before
any work is performed in connection with such appro-
priation (N.R.S. §533.325).

The application for a permit to appropriate water
shall contain the following information:

     1.  The name and post office address of the
     applicant and, if the applicant is a corpor-
     ation, the date and place of incorporation.
     2.  The name of the source from which the
     appropriation is to be made.
     3.  The amount of water which it is desired
     to appropriate, expressed in terns of cubic
     feet per second, except in an application
     for a permit to store water, where the amount
     shall be expressed in acre-feet.
     4.  The purpose for which the application
     is to be made.
     5.  A substantially accurate description of
     the location of the place at which the water
     is to be diverted from its source and, if
     any of such water is to be returned to the
     source, a description of the location of
     the place of return.
     6.  A description of the proposed works.
     7.  The estimated cost of such works.
     8.  The estimated time required to construct
     the works, and the estimated time required
     to complete the application of the water
     to beneficial use.
     9.  The signature of the applicant or his
     properly authorized agent (N.R.S. §533.335).

In addition, if the application is for irrigation uses,
except for a request to store water, the applicant
must give the number of acres to be irrigated and a
legal description of the land (N.R.S. §533.340).  All
applications for permits shall be accompanied by maps,
drawings and other data prescribed by the State Engi-
neer (N.R.S. 5533.350).

Upon the filing of an application, notice is pub-
lished, protests may be submitted and a hearing held
by the State Engineer (N.R.S. §533.360).
 3 This is not strictly the case.  In a case where
 $35,000 had been spent for a well and where no one
 else wanted the water in question or would be harmed
 by its continued use, the language of the statute was
 ignored by the district. Engineer v. American National
 Insurance Co.. 498 P. 2d 1329, 1972.
 The State Engineer shall approve all  applications
 made in proper form for unappropriated water and prop-
 er fees paid which contemplate  the application of water
 to beneficial  use and where  the proposed  use or change
 does not impair the value  of existing rights or to be
 otherwise detrimental  to the public welfare (N.R.S.
 §533.370).

 Specifically,  the State Engineer can  reject any appli-
 cations based upon the public intent  and  the economic
 welfare of the State of Nevada  for a  use  involving the
 industrial  purpose of generating energy to be exported
 out of this State (N.R.S.  §533.370).  These provisions
 clearly reflect the strong agricultural and mining
 interest in the State and  provide the criteria in the
 negative for disapproving  an application, thus placing
 the burden of rejection upon the State.

 If the application is approved, the applicant is given
 a specific time to begin construction of works, complete
 his project and apply the  water beneficially  (N.R.S.
 §533.380).  If reasonable  diligence is not exercised,
 the permit may be cancelled  (N.R.S. §533.395). Once the
 project is complete, proof of application of  the water
 to beneficial use will cause the issuance of  a certi-
 ficate which describes the right (N.R.S.  §533.425).

 Priority in time confers a better right.  Although it
 is not expressly provided  for by statute  in the case
 of surface water, the date of priority is established
 according to the date of filing the application
 (Hutchins, Uater Rights....  Vol. 1, p. 389).

 Ground Water—
 Since 1939, all  ground waters within the state were
 declared to belong to the public (N.R.S.  §534.020).
 The right to use unappropriated ground water can be
 acquired by adhering to the  same laws and procedures
 governing the acquisition  of surface  waters (N.R.S.
• §534.020).  The State Engineer  shall  supervise all
 wells taking artesian water  or  water  from a definite
 underground aquifer drilled  after March  22, 1913 and
 wells which take percolating waters drilled after
 March 25, 1939 (N.R.S. §534.030).   There  is an
 exception for domestic purpose  wells  not  exceeding
 1800 gallons daily maximum.  They can be  developed
 and used without obtaining a permit.   However, the
 user must furnish any information  required by the
 State Engineer (N.R.S. §534-180).   This  exception
 can be prohibited where water  can be  furnished by
 an entity such as a water  district  or a  municipality
 presently engaged in furnishing water to  the  inhabi-
 tants thereof (N.R.S. §534.120  (3d)).

 The State Engineer may designate  ground  water basins
 on his own volition or by  petition  of not less than
 40 percent of recorded appropriators  in  the basin
 (N.R.S. §534.030).  In addition, he may  create ground
 water boards to assist him in  the administration of
 designated ground water basins  wholly within one
 county.

 In a designated basin, a permit must  be  acquired be-
 fore performing any work in  connection with the
 boring or sinking of a water well  (N.R.S. §534.050).
 In either a designated or  nondesignated  basin, a
 person must have a permit  before making  a diversion.

 The right of each appropriator  relates  only to a
 specific quantity and is subject to a reasonable
 lowering of the static water level  at the point of
 diversion (N.R.S. §534.110 (4)).  Restrictions on
 use of water in a ground water  basin by priority of
 right may be initiated by  the  State Engineer  if the
 annual recharge is not sufficient  to  satisfy  all
                                                       177

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rights (N.R.S.  S534.110 (6)).  In areas where the
ground water is  being depleted,  he can designate pre-
ferred uses of  water (N.R.S.  5534.120).

Priority for ground water is established from the data
of filing the application with  the State Engineer
(N-R.S.  §5533.355 and 534.080).

Prescription Water Rights—
No prescriptive rights to the use of water,  appropri-
ated or unappropriated, may be  established by adverse
use or adverse  possession in Nevada (N.R.S.  §533.060
(3)).

Preferences—
Nevada does not recognize any preferences for surface
water in the event of shortage; or for ground water
in non-designated areas.  However, in designated
ground water areas where the  aquifer is being de-
pleted,  the State Engineer is authorized and directed
to designate preferred use of ground water in the inter-
est of the public welfare within the following limits:
domestic, municipal, quasi-municipal, industrial,
irrigation, raining and stock-watering uses (N.R.S.
S534.120 (2)).
8.2.3  Adjudicating Water Rights'*

To insure proper and efficient administration and dis-
tribution of the States' waters, there is a special
statutory procedure for the determination of indivi-
dual water rights (N.R.S.§5533.090 to 533.320).
This procedure can be initiated upon petition of one
or more users of a stream or ground water systems, or
by the State Engineer, if the situation justifies it.
The State Engineer's duty under this statutory adju-
dication process is to prepare a hydrographic survey
of water uses and to receive statements filed by the
various claimants.  These statements constitute the
claimants' "pleadings" on the action.  From this
information the State Engineer is to prepare a pre-
liminary determination of the rights of individual
users.  Copies of this determination are then served
on individual users and the State Engineer hears any
objections of the parties and takes evidence regarding
any protests filed.

The final order of the State Engineer with the evidence
submitted at the hearing is filed with the appropriate
district court.  Tfis filing forms the basis of any
civil action (N.R.S. §§533-090 to 533.185).  The
adjudication takes place in the court with the state-
ments of the claimants and the determination proposed
by the State Engineer constituting the pleadings
(Vineyard Land and Stock Co. v. District Court. 42
Nev.  I, 171 P. 166, 1918).Since this actull adju-
dication is made by the court, relief will be granted
to an aggrieved party when the State Engineer has in-
fringed upon an individual's rights  (In re Silver
Creek. 57 Nev. 232, 61 P.2d 987, 1936).  The State
Engineer's findings are, however, presumed to be
correct (Scossa v. Church, 46 Nev. 254, 205 P. 518,
1922).  The decree of the district court may be
appealed to the Nevada Supreme Court.  Upon final
determination of the relative rights of the waters
being adjudicated, the State Engineer will issue
certificates defining each individual right (N.R.S.
§533.365).
* This discussion is condensed from the Nevada Stat-
tutes and A Summary Digest of State Water Laws, by
R. Dewsnup and D. Jensen, National Water Commission,
Hash., D.C.,"Ch. 28—Nevada, Section 2.2—Resolution
of Water Use Conflicts," pp. 473-475.
This statutory procedure is not the exclusive method of
determining vested  rignts. The State Engineer may, upon
petition of the users, administer water rights under
a final decree.  This decree would result from an
action other than special statutory proceedings (N.R.S.
1533.310).

In addition to these methods of adjudicating rights or
enforcing decrees, individual users may obtain a det-
ermination of their respective rights through a quiet
title action as water rights are characterized as
real property (Pacific Live Stock v. Ellisen Ranching
Cp_., 52 Nev. 279, 286 P. 120, 1930).Since all water
rights are adjudicated in these statutory procedures,
there is no significance between a historical diver-
sion and a statutory rights.  The significance of
adjudicating a right is to establish the positions of
all parties on a stream or source.
8.2.4  Conditions of Use

Beneficial Use-
Nevada statutes  provide that "beneficial use is the
basis, measure and limit of the right to use water"
(N.R.S. §533.035).  It has been held in Nevada and
substantiated by statute that the water user cannot
legally appropriate more water than can reasonably
be put to beneficial use (Dick v. Caldwell, 14 Nev.
167, 1879; and N.R.S. §533.070^

Water may be appropriated for any beneficial use.
The Nevada statutes do not define the limit or the
extent to  the uses which may be recognized as bene-
ficial.  The statutes have declared specifically that
water for watering livestock and recreation are bene-
ficial uses  (N.R.S. §§533.490 and 533.030).  The
statutes also specify necessary information in an
application of appropriations for irrigation, power,
municipal,mining, and stock watering purposes.  A
focus of special factors in allocating irrigation
water will be discussed in the next section.

General requirements for beneficial uses of water
under a valid water right include:

1.  The right shall remain appurtenant to the place
    of use (N.R.S. 5533.044) although if this becomes
    impracticable, the vested right nay be severed
    from such place of use and simultaneously trans-
    ferred and become appurtenant to other place or
    places of use without losing priority, provided
    an application is filed with the State Engineer
    which contains such information as may be neces-
    sary to  a full understanding of the proposed
    change (N.R.S. §533.345).

2.  Any person may exercise the  right of eminent
    domain to construct, use and maintain any work
    for the  lawful diversion, conveyance and storage
    of waters (N.R.S. §533.050); and

3.  Water may be stored for a beneficial purpose  (N.R.S.
     §533.055).

While irrigation is  held to be a beneficial  use
(Miller and  Lux  v. Rickey. 127 Fed. 573. D.  Nev..
1904), the mere  watering of land with the intent to
promote plant growth  cannot be classed as beneficial
if the conditions are such as to produce meager
insubstantial results  (Vineyard  Land and Stock Co.
v.  Twin Falls Salmon  River Land  and Water Co., 245
 Fed.  9, C.C.A. 9th,  1917).
                                                      178

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Regarding the actual exercise of the water right to
divert for irrigation, it was held in 1906 that bene-
ficial use must also be made only at such times as the
water is needed (Twaddle v. Winters, 29 Nev. 88, 85 P.
280, 1906, 89 P. 289, 1907).  This position was codi-
fied in 1913 as a limitation on water rights.  Para-
phrased, the present statutory provision states that
the right to divert ceases when a necessity for the
use of water does not exist, and no person shall be
permitted to divert or use the waters appropriated
until such time as the water is required for a bene-
ficial purpose (N.R.S. §533.045).

The Nevada courts have further qualified beneficial and
reasonable use as being economical (Reeder v. Stein,
23 Nev. 92, 42 P. 867, 1895; Stepee Live Stock Co. v.
Gulley, 53 Nev. 163, 295 P. 772, 1931).In essence,
the appropriator "should be required to make an eco-
nomical, as well as reasonable, use of the water"
(Union Mill and Mining Co. v. Dangberg. loc. cit.).
This doctrine has been repeatedly cited in Nevada
courts (Doherty v. Pratt. 34 Nev. 343, 124 P. 574,
1912; Kent v. Smith. 62 Nev. 30, 140 P.2d 357, 1943).

These concepts are important for irrigation purposes
in that what is considered reasonable depends on the
facts and circumstances of each case.  Improved irri-
gation practices have to be considered an element of
reasonableness.  Irrigation also must be measured
against a more economic and, therefore, a more reason-
able use of water in Nevada.  It can be argued that an
industry which produces greater economic benefit for
the State of Nevada might, in appropriation questions,
take priority over irrigation uses.

The limitations on appropriative rights—requiring
economical, beneficial and reasonable use and preclud-
ing any waste of water—have been applied to a claim-
ant whose method of irrigation was wasteful according
to modern standards (Vineyard Land and Stock Co. v.
Twin Falls Oakley Land and Water Co., 245 Fed. 30,
C.C.A. 90th, 1917).The case involved a dispute over
the amount of water to be awarded to the parties in-
volved.  One party desired to continue flooding hay
pastures.  The court responded:

     The Land and Stock Company insists that the
     duty of water should still be measured by
     the old method of irrigation of pasture and
     the native grasses for the production of hay,
     which was by the flooding system, that allowed
     the water to cover the surface of the soil,
     and actually remain thereon for considerable
     periods of time.  This method is being dis-
     approved of in more recent years as waste-
     ful and not an economical use.  No person
     is entitled to more water than he is able
     to a reasonable and economic use.  True,
     it may be that good results are obtainable
     from the former method, but that does not
     argue that just as good results may not be
     secured by a much more moderate use, which
     would leave a large quantity of water for
     others	

The irrigator was allowed only enough water to irrigate
the land in a reasonably efficient manner.  The amount
of  water decreed was less than had been prior to the
decree.  Clearly, this decision has significant impli-
cation when considering irrigation return flow prob-
lems.  The theory under the rule of economic use is
that there should be no surplus or waste water.  It is,
however, recognized that absolute efficiency in the
diversion, conveyance and application of water is not
practicable.  A certain amount of waste is unavoidable
(Bidleman v.  Short. 38 Nev.  467,  150 P.  834,  1915).
In determining the question  of reasonable  and economic
use of water and thereby beneficial  use, courts will
consider the methods of use  existing throughout the
area in question and will not penalize an  appropria-
tor whose system is comparable even  though the typical
irrigation system may not be the  best that could  be
devised (Rodgers v. Pitt. 89 Fed.  420; D,  Nev. 1898,
129 Fed. 932, D. Nev. 1904).

Duty of Water--
In determining the duty of water  for irrigation pur-
poses (the requirements of water  for irrigation)  upon
applications for water rights, Nevada has  departed
from the traditional statutory duty  adopted by many
Western States.  The Nevada  system is designed to
allow a reasonable administrative determination based
upon a case by case analysis.  Under the current  law,
the State Engineer is to consider the duties  of water
established by court decrees or by experimentation
within the area in question  (N.R.S.  §533.070).  In
addition, he is instructed to consider the growing
season, type of culture and  reasonable transportation
losses for each use.  When these  requirements have
been determined, they are to be placed upon a grid of
the area in the State in which the appropriation  is to
be made.  Reservoir evaporation losses should be  taken
into account for stored water to  determine the volume
to be granted under the permit.  Further statutory
provisions limit the exercise of  a water right to that
amount necessary when reasonably  and economically used
for irrigation and other beneficial  purposes, irre-
spective of the carrying capacity of the ditch (  A.
Summary Digest of State Water Laws,   loc.  cit.).

Rotation in Use—
To encourage a more beneficial use of water,  Nevada
al.lows water users owning lands to which water is
appurtenant to rotate the use of  their supply in  order
to create an irrigation head of at least 2 cfs.  (N.R.S.
§533.075).

Waste—
Nevada law prohibits the willful  waste of  water  "to
the detriment of another" (N.R.S. §533.460), and  has
granted the State Engineer and his assistants the
power to arrest anyone violating  this provision  (N.R.S.
§533.475).

The legislature specifically addressed the unlawful
use and waste of water during an  irrigation season
(N.R.S. S533.530).  This provision declares it to be
an unlawful use and waste of water to divert water
into any slough, dam, pond or otherwise retain it
without making any other use of the  water  or to  allow
water to run to waste on sagebrush or greasewood  land.
Waste of water from surface and ground water consti-
tutes a misdemeanor.

This prohibition has also been extended to artesian
well water and charges that the owner of an artesian
well from which unnecessary waste of water is occurring
is guilty of a misdemeanor.

For irrigation, reasonable carriage  losses are per-
mitted when conveying water from the point of diversion
to the place of use.  Two types of conveyance losses
are recognized:  losses which occur in the user's
ditch, and those which occur in the  natural channel.
Those which occur  in the natural  channels  are not the
responsibility of the prior appropriator,  as the  effi-
ciency of a channel  is beyond the control  of the  water
user.  The water can be  beneficially used without
regard to the amount of water loss in the  upstream
channels (Rodqers v. Pitt. 89 Fed. 420; D.  Nev..  1898,
                                                       179

-------
 129 Fed. 932; D. Nev., 1904).  Excessive losses which
 occur in the user's ditch which are within his control,
 however, must be avoided (Doherty v. Pratt, 33 Nev.
 343, 124 P. 574, 1912).

 The significance of the duty placed on the owner of a
 ditch is that it affects both the individual user and
 the ditch company.  This doctrine, coupled with the
 decision in Vineyard Land and Stock Company v. Twin
 Falls Oakley Land and Water Co. (42 Nev. 1, 171 P.
 166, 1918), is a clear mandate to ditch owners that
 the  physical facility must be both efficient and in
 good repair.
 8.2.5  Manner in Which Rights May be Adversely Affected

 Abandonment and Forfeiture—
 Nevada legislature has enacted separate provisions for
 the abandonment and forfeiture of surface and ground
 water rights.  The Nevada statutes provide that when
 any water right owner of surface or ground waters fails
 to use water during any five successive years, the
 right is deemed abandoned and the water rights, ease-
 ments and privileges are forfeited and the water again
 is available for appropriation (N.R.S. §533.060).  This
 statutory "forfeiture" is based solely on a failure to
 use the water; intent not to use the water is immater-
 ial (In re Manse Spring and Its Tributaries, loc. ci_t.).

 Although the Nevada statute on surface water com-
 mingles the terms of both abandonment and forfeiture,
 they are different legal concepts and this distinction
 has been made by the courts.  Abandonment requires
 both an intent to forsake the right and an act of non-
 use (Valcalda v. Silver Peak Mines, 86 Fed. 90, C.C.A.
 9th, 1898).Forfeiture is simply  nonuse  for the
 statutory time period.  The intent is to be evidenced
 by overt acts (Anderson Land and Stock Co. v. Hc-
 Connell. 188 Fed. 818 (L.), Nev., 1910), but must be
 voluntary or justifiable action not to exercise the
 right (In re Manse Spring and Its Tributaries, 60 Nev.
 461, 155 P. 2d 324, 1945).It has been held that the
- discharge of water for the purpose of disposing of it,
 without any intention of reclaiming it, is conclusive
 evidence of the abandonment of a right (Schulz v.
 Sweeny, 19 Nev. 359, 11 P. 253, 1886).  Once a water
 right has been abandoned, the right ceases and cannot
 be resumed after$the rights of others have intervened
 (Anderson Land and Stock Co. v. HcConnell. loc. cit.).
 Abandoned water becomes a part of the natural stream
 or other source and reverts to the state (In re Manse
 Spring and Its Tributaries, loc. cit.).  The fact that
 abandoned water again becomes the property of the
 public eliminates any chance of a water night being
 claimed by an individual based on another's abandon-
 ment.

 The statutory provisions on  underground water address
 themselves both to forfeiture and abandonment (N.R.S.
 5534.090 (1) & (2)).  However, the terms are distinct
 and application easily discernable.

 Forfeiture follows the five successive year nonuse
 plus the need of notification to the person of record
 by the State Engineer.  If the person of record fails
 to appeal the ruling of forfeiture, the forfeiture
 becomes final.

 A right to use  underground  water may also be lost by
 abandonment.  If the State Engineer is investigating a
 ground water source upon which there has been a prior
 right, for the purpose of acting upon an application
 to appropriate water from the same source, and is of
 the belief that an abandonment has taken place, he
 shall report this finding in approving the application.
Therefore, he must notify the person of record,  and if
this person fails to appeal  such ruling the alleged
abandonment declaration becomes final.

Adverse Possession--
In 1949, Nevada adopted a statute which provides that
an adverse use right cannot be acquired in any of the
appropriated or unappropriated waters in Nevada
(N.R.S. §533.060(3)).

Condemnation—
Condemnation is a process by which the property  of a
private owner is taken for public use, with the  pay-
ment of just compensation (Black's Law Dictionary).

Nevada law provides that beneficial use of water is a
public use, and upon receiving an appropriation  any
person may exercise the right of eminent domain  to
condemn lands and other property which is necessary
for the construction of works for the use of water
(N.R.S. 5533.050).  Once the easement is obtained, it
cannot be lessened or interfered with by an owner of
a servient estate.  Neither can an owner of an ease-
ment enlarge it without further condemnation proceed-
ings and the payment of compensation (Thomas v.
Blaisdell. 25 Nev. 223, 58 Pac. 903, 1899).

Enforcement of Beneficial Use or Waste Concepts--
The holder of an appropriation right in Nevada is
limited to the quantity of water specified in the
application or certificate of appropriation (if
issued).  An appropriative right is also limited by
beneficial use requirements (N.R.S. §533.035).  This
has been judicially recognized in Dick v. Caldwell
(14 Nev. 167, 1879).  The court in this case held
that a water user cannot legally appropriate more
water than can be placed to beneficial use.

The Nevada Supreme Court has emphasized that benefici-
al use is measured by and limited to reasonable needs
(Barnes v. Sabron, 10 Nev. 217, 1875).  In addition,
the legislature has reiterated this limitation for
irrigation as restricted to that amount that can be
reasonably and economically used, with the "balance
of the water not so appropriated" to be allowed to
flow in the stream for other users (N.R.S. §533.475).
The State Engineer or his assistants have the author-
ity to arrest any person violating the provision
(N.R.S. S533..475). If he determines it necessary to
hire guards to prevent unlawful diversions of water,
he can pay their salaries and charge the ditch owners
(N.R.S. §533.470).  If the owners fail to pay, such
charges become a lien against the lands having water
rights under the conveyance system.
8.2.6  Legal Incentives and Disincentives for More
       Efficient Water Use Practices

Irrigation Return Flow--
A federal case arose in Nevada concerning the question
of using return flows from irrigation and the effect
upon downstream water users (Vineyard Land and Stock
Co. v. Twin Falls Salmon River Land and Water Co., 245
Fed. 9, C.C.A. 9th, 1917).An upstream water user was
using appropriated water in such a manner that approx-
imately two-thirds of the appropriation returned to
the stream via percolation.  The upstream senior
appropriator was applying 12,500 acre-feet of water
annually to irrigated land.  Of this amount, 8,500
acre-feet was returning to the river.  The appropria-
tor desired to transfer the use of this return flow
to another location.  This would have deprived the
downstream user of 8,500 acre-feet of return flow.
                                                       180

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 The court defined return flow waters as those that
 after use by an upstream appropriator find their way
 back to the stream by reason of percolation or runoff.
 It went on to hold that as to return waters, upstream
 appropriators cannot change their place of use or
 method of use if it affects the natural stream so as
 to adversely affect downstream users since junior
 appropriators are entitled to have conditions exist
 substantially as they did at the time of their appro-
 priation.  Further, use of the water by the upstream
 prior appropriator was confined by the court decree
 to the locality in which it was being used at the
 time a downstream appropriation was made.   This re-
 sulted from the concept that the downstream appropri-
 ator was entitled to a continuance of conditions in
 existence at the time of the appropriation.

 The court held that the difference between the appro-
 priation and the return flow, or the true  appropria-
 tion, was only 4,000 acre-feet.  This is in line with
 modern consumptive use cases.  It also conforms with
 decisions permitting the capture of water  for reuse
 on the same land but prohibiting its use on different
 lands.

 Though it appears  that this doctrine is an impediment
 to efficient irrigation practices,  there is a compel-
 ling logic about it.   Since beneficial  use is the
 basis,  the measure and the limit of a water right,  it
 would be a misreading  of a water right to  include not
 only the water which was used but also the water
 which is simply allowed through the land and back to
 the river.

 Salvaged and Developed Waters—
 Generally,  an  appropriator is entitled to  have the
 stream flow in its  natural  course to the point of
 diversion.   The appropriator may not be  deprived  of
 such  use for the benefit of a later claimant upstream
 even  if he could show  a  greater benefit  [Tonkin v.
 Winze!!, 27 Nev. 88, 73  P.  593, 1903).   However,  the
 court  held  that an  upstream junior  appropriator has
 a  right  to salvage water by draining swamps  and
 depressions  or by substituting ditches,  flumes, pipes,
 or by  other means for  sandy or numerous  channels  that
 lose water.  The expense  is  to be borne  by  the junior
 appropriator who wants  to utilize the  saved water.
 The limitation on the  use  of saved  water is  that  such
 actions  shall  not be to  the detriment of existing
 rights,  whether up or  down  the  stream.

 The law  on developed water  is  likewise the result of
 a  very early case.  In Cardelli  v.  Comstock Tunnel
 Co^ (26 Nev.  284, 66  P. 950,  1901), the court held
 that water produced by individual labor and enterprise
 and not  a part of the watercourse has a right to the
 water.

 There have been no recent cases on salvaged or devel-
 oped waters in Nevada.  These dated holdings, however,
 remain consistent with the majority of decisions
 throughout the West.

 Waste Water—
 Waste water  is characterized  by the Nevada Supreme
 Court as surplus water running  off  irrigated ground
 not consumed by  the process of  irrigation.5  It is
the property of the original user as long as it remains
on the appropriator's land (Bidleman v.  Short. 38 Nev.
467, 150 P. 834, 1915).
5This includes water seeping from irrigated land onto
the adjoining land of another.  In re:  Bassett Creek
and Its Tributaries. 62 Nev. 461, 155 P.  2d 324,
1945.
 Landowners  may consent to the appropriation of waste
 water by other persons on their own property and in
 ditches constructed  on their own property for the pur-
 poses of conveying these  rights to land of the other
 parties (Hutchins, 1955,  pp. 55-56).  But the owner
 of land from which waste  water originated is not
 required to "continue and maintain conditions so as
 to supply the appropriation of waste water at any time
 or in any quantity when acting in good faith" (Ryan v.
 Gallic, loc cit.).   The user of waste water does not
 gain any control  over irrigation ditches or the water
 flowing within the land of origin.  A landowner cannot
 be compelled to continue  wasteful methods of use for
 the benefit of a  claimant of waste water flowing from
 the landowner's premises  (In re:  Bassett Creek and
 Its Tributaries.  62  Nev.  461, 155 P. 2d 324, 1945).
 In the case of In Re:   Bassett Creek, a lower land-
 owner was taking  water from drainage works of an upper
 landowner.   The water inthe ditch was waste water from
 the upper land.  The lower landowner sought to compel
 the upper landowner  to continue this waste on the
 theory that he had acquired rights to the waste water.
 The Nevada  Supreme Court  refused to compel the upper
 landowner to continue  these practices saying that no
 one could acquire rights to a  continuance  of  the  waste
 of water.

 Provisions  for Transfer of Hater Rights and Diversions—
 The policy  in Nevada has  been to encourage ditch com-
 panies to invest  the capital necessary to divert and
 transfer water for delivery to individuals, particu-
 larly where the user could not afford to construct
 the facilities necessary  to convey water from the
 stream to the place  of use (Prosole v. Steamboat
 Canal  Co.,  loc cit.).

 Nevada statutes allow changes in the point of diver-
 sipn,  place of use,  or purpose of use for water
 rights.   The change  procedure must be initiated by
 filing a change application with the State Engineer
 (N.R.S.  §§533.325 and  533-345).

 The change  application will be approved if a proposed
 change does not impair the value of existing rights or
 if it  is not detrimental  to the public welfare.   A
 change that does  not meet those statutory criteria  will
 be rejected (N.R.S.  §533.370).  The right to make a
 change has  consistently been recognized in Nevada if
 the change  does not  constitute an injury and does not
 decrease the value of  the  rights of others (Smith v.
 Logan.  18 Nev.  149,  1  P.  678,  1883; Miller and Lux  v.
 Rickey,  loc cit.).   As  noted above, no change may be
 refused  if  the  return  flows find their way back  to  the
 stream and  downstream  appropriators are not injured
 (Vineyard Land  and Stock Co. v.  Twin Falls Salmon
 River  Land  and  Hater Co..  loc  citTyi
8.2.7  Hater Disposal and Drainage

Disposal of Haste Water—
Upper landowners who irrigate lands under an appropri-
ative right must use reasonable methods of irrigation
so as not to injure the lands of their neighbors
(Blaisdell v. Stephens. 14 Nev. 17, 1879).    Where
parties are acting independently of each other with
the result being an injury to a lower landowner,  they
cannot be held jointly liable for the acts  of each
other (Johnston v. Rosaschi. 44 Nev.  386, 194 P.
1063, 192TT:This seems to indicate  that all  possible
defendants will have to be brought into the case  and a
fact finding made as to the damage caused by each
defendant.  This could affect attempts to deal  with
salinity control since the nature of  the problem  is
one having numerous contributions.
                                                     181

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Drainage—
The owner of an upper tract of land has an easement on
lower tracts of land to the extent of the natural flow
of water from the upper to the lower tracts of land
(Blaisdell v. Stephens. 14 Nev. 17, 1879).  This rule
was restated in Boynton v. Langley years later:

     As the flow of water caused by the fall of
     rain, the melting of snow, or natural drain-
     age of the ground, the doctrine is that when
     two tracts of land are adjacent and one is
     lower than the other, the owner of the
     upper tract has an easement in the lower
     land to the extent of the water naturally
     flowing from the upper land to and upon the
     lower tract.  And that any damage that may
     be occasioned to the lower land is not
     actionable.  This rule, however, only
     applies to water which flows naturally
     from the springs, from storms of rain or
     snow or the natural moisture of the land.
     Wherever courts have had occasion to dis-
     cuss this question they have generally
     declared that the servitude of the lower
     land cannot be augmented or made more
     burdensome by the acts of industry of
     man (Boynton v. Longley. 19 Nev. 69, 6
     P 437, 1885).

This case dealt with a controversy concerning an upper
landowner cultivating land by artificial irrigation.
The court held that the upper landowner, while having
the right to make a reasonable use of water for irri-
gation, must so use, manage and control  it in such a
way as not to injure his neighbor's land.   This hold-
ing has significance in the area of irrigation return
flow because a reasonable use of water by an upper
irrigator contemplates the elimination of water flow-
ing across the land in an attempt  to keep the water
right intact.  Damage to the lower landowner may be
in the nature of flooding or through increased salin-
ization.  In either case the damage caused by an
unreasonable use of water by an upper landowner
causes an undue burden on the lower landowner.   The
difficulty involved concerns proof.  It  is relatively
easy to prove the chain of causation in  a flood but
much more difficult concerning salinity  problems.


8.3  ORGANIZATldAL AND ADMINISTRATIVE ASPECTS

8.3.1  State Water Agencies

The Department of Conservation and Natural  Resources
has general administrative supervision over all  nat-
ural resource agencies (N.R.S. 5232.020).'  It shall
be headed by a Director who must be a registered
professional engineer and possess a wide knowledge
of the natural  resources of the State of Nevada
(N.R.S.5232.040).

The powers and duties of the Director relative to the
waters of Nevada include that he shall:

     ...(e) Coordinate all  studies in the State
     of Nevada  concerned with the supply,  devel-
     opment, use and conservation of water.
        (f) With the approval  of the Governor,
     may enter into cooperative agreements with
     any federal  or state agency, or any public
     or private institution in or outside  the
     State of Nevada or any person, corporation
     or association, in connection with  studies
     and investigations pertaining to waters
     (N.R.S. §232.070).
The  executive  head  of this division of water resources
is the  State Engineer, appointed by and responsible to
the  Director.   He and the employees of the division of
water resources  have the powers and duties conferred
upon the  State Engineer pursuant to Title 48—Waters
of the  Nevada  Revised Statutes and the provision of
any  other laws (N.R.S, §232.100).

The  State Engineer  is a registered professional engi-
neer (N.R.S. 5232.030).  He is empowered to make
reasonable rules and regulations necessary for the
execution of his powers and may make rules not in con-
flict with law governing the practice and procedures
in all  contests  before his office.

The  State Engineer  is  responsible for developing a
comprehensive  water resource plan for the state as well
as reviewing proposals by federal, state and local
agencies  concerning water and flood control for pos-
sible conflict (N.R.S. §532.165).  In January 1971,
he submitted to  the citizens of Nevada several  in a
series  of reports on his findings for a state water
planning  program (Water for Nevada, Vol. 1 & 2, 1971).
This report identified three broad objectives to be
pursued in the plans for water use in Nevada:
(1) maintain or  improve the quality of the state's
environment; (2) strive for greater economic efficiency
per  unit  of investment in water and related land re-
sources;  and (3) create specific patterns of area
development through water and related resources
investments (Ibid., pp. 3-4).

The Office  of the  State Engineer handles all applica-
tions of  appropriation of water (N.R.S. §§533.325 and
534.050),  as well as applications for permits to change
place of  diversion, manner of use or place of use
(N.R.S. 5533.345).  He has authority to develop rules
and regulations for application of water rights, infor-
mation  needed  thereon and for administering the rights.
He is responsible for ensuring the proper distribution
of appropriated waters (N.R.S. §533.305) and shall
appoint water  commissioners on a stream system  or
water district to carry out the local  administration
of water  rights and distribution of water (N.R.S.
5533.270).  Among the many other duties of his  office
are:   approval  or rejection of applications to  use
water for  livestock watering (N.R.S.  §533.500);
supervision of ground water basins (N.R.S.  5534.030)
and regulation of withdrawals in basins where ground
waters  are being depleted (N.R.S.  §534.120); allocation
and control over development, use and  conservation of
geothermal waters (N.R.S. 5534A.020);  and inspection
and control over dams (N.R.S. §535.030).  He is author-
ized, also, to divide the state into water districts
to promote administrative supervision  (N.R.S. §533.300).

Upon petition  signed by one or more water users, or
upon his own authority, the State  Engineer is to
determine  the  relative rights to the  use of water
(N.R.S.  §533.090).   His determination  shall  have the
legal effect of a complaint in a civil  action (N.R.S.
§533,160).  Following the final determination of the
relative  rights in and to the waters of a stream sys-
tem,  he shall  issue certificates as to  the determina-
tion (N.R.S. 5533.265).

One interesting and unique feature in  Nevada water law
concerns the power of the State Engineer to insure
that laws under his jurisdiction are carried out.
This feature is the power granted  the  State Engineer
and his assistants to arrest any person violating the
provisions of Chapter 533 pertaining to the adjudica-
tion  of vested  water rights and the appropriation and
use of public waters (N.R.S.  §533.475).   Under  this
statute, an arrested person is to  be turned over to
                                                     182

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the sheriff or other competent police officer in the
county where the arrest takes place.  Immediately
thereafter, the water official making the arrest is
to submit a written complaint against the arrested
person to a justice of the peace.

8.3.2  Judicial Bodies

Nevada does not have special water courts. If an order
of determination is filed in court in a statutory
proceeding then distribution of water is under the
supervision of the court (N.R.S. §533.220).  Orders
and decisions of the State Engineer are subject to
judicial review by the district courts of Nevada and
on appeal to the Supreme Court of Nevada (N.R.S. §§
533.450 and 533.455).

8.3.3  Water Users and Their Organizational Structure

Water can be appropriated for use by individuals,
corporations, associations, companies, the United
States, and the state (N.R.S. §533.010).  Whether
private or public entities, all users are subject to
the same requirements of beneficial use.  The respons-
ibility may vary, however, depending upon the obliga-
tion of an entity to its members and the public.

Nevada law requires owners of ditches and canals to
maintain satisfactory headgates at or near where water
is diverted and measuring devices at points necessary
to determine the flow to various users (N.R.S. 5
536.010).

Public Entities--
Water users can cause the formation of public entities
for water appropriation, development, delivery and
management.  Generally, these entities may include
irrigation, drainage and conservancy districts.

Irrigation districts may be formed under Nevada stat-
utes 539.010 to 539.783 and are corporations with a
public purpose.  These districts differ from counties
and like political  units in that they function for
the profit of the inhabitants and are set up for
business and not governmental purposes.

Irrigation districts are given the power of eminent
domain (N.R.S. §539.225).   The board of directors may
appropriate water, construct necessary works and pro-
vide for drainage of lands (N.R.S. §539.230).  Water
can be supplied by contract, agreement or other legal
matter (N.R.S. §539.235).   In order to secure com-
plete drainage of lands, the board of directors has
the power to widen, straighten or deepen any water-
course (N.R.S. §539.245).   The board of directors of
an improvement district can:

     ...provide for the construction of canals,
     ditches, laterals, dams, drains, or other
     structures or improvements or the acquire-
     ment, replacement, consolidation or exten-
     sion of the same, or the leasing, acquisi-
     tion or construction of electrical
     transmission lines and accessory equipment,
     the benefits of which affect all or are
     limited to a portion of the district only,
     in the manner provided in NRS 539.423
     to 539.460 inclusive (N.R.S. §539-423).

Drainage districts may be organized under Nevada
statutes 540.010 to 540.790.  Proposal  of a drainage
district is accomplished by a majority of land owners
within a proposed district (N.R.S. §540.030).

     The board of supervisors have:
     1,   The right to acquire  on  behalf  of  the
     district, by purchase or  condemnation  or
     other legal  means, all  lands  and  other
     property necessary for the construction,
     use, maintenance, repair  and improvement
     of the canal or canals, drains and  works
     constructed  (including canals, drains, or
     drain ditches being constructed  by  private
     owners), and all necessary appurtenances.
     2.   The value of the land or other  property
     taken for use by the district shall  be
     determined,  if possible,  by  arbitration,
     the arbitrators to be selected,  in  the
     usual manner, and if the  owner thereof
     will not consent to arbitration,  then  by
     condemnation proceedings. In case  of  nec-
     essity for condemnation proceedings  the
     board shall  proceed in the corporate name
     of the district under the provisions of
     law relating to eminent domain (N.R.S. §
     540-460).

Water conservancy districts may be formed under
Nevada law 541.010 to 541-420. These  statutes
provide:

     1.   It is declared that to provide  for
     the conservation and development  of the
     water and land resources  of  the  State  of
     Nevada and for the greatest  beneficial
     use of water within this  state,  the  organ-
     ization of water conservancy districts and
     the construction of works as herein  de-
     finedbysuch districts are a public  use
     and will:
     (a)  Be essentially for the  public  benefit
     and advantage of the people  of the  State
     of Nevada;
     (b)  Indirectly benefit all  industries
     of the state;
     (c)  Indirectly benefit the  State of
     Nevada in the increase of its taxable
     property valuation;
     (d)  Directly benefit residents  of  the
     State of Nevada by providing adequate
     supplies of water for domestic,  municipal
     and industrial use;
     (e)  Directly benefit lands  to be irrigated
     or drainage from works to be constructed;
     (f)  Directly benefit lands  now  under
     irrigation by stabilizing the flow  of
     water in streams and by increasing  flow
     and return flow of water  to  such  streams;
     (g)  Directly benefit urban  use  of  water
     or development of water resources by
     flood control; and
     (h)  Promote the comfort, safety  and wel-
     fare of the  people of the State  of  Nevada.
     2.   It is therefore declared to  be  the
     policy of the State of Nevada:
     (a)  To control, make use of and  apply
     to  beneficial use unappropriated  waters
     in  this state to a direct and supple-
     mental  use of such waters for domestic,
     manufacturing, irrigation, power  and
     other beneficial uses.
     (b)  To cooperate with the United States
     and agencies thereof under the federal
     reclamation  laws or other federal laws
     now or hereafter enacted  and to construct
     and finance  works within  or  without  the
     State of Nevada as herein defined and
     to  operate and maintain the  same  (N.R.S.
     §541-030).
                                                      183

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 A petition-must be filed with the clerk of court and
signed by not fewer than 20 percent of the owners of
the land and by not fewer than 5 percent of TOO,
whichever is lesser, of landowners within an incorpor-
ated or unincorporated city (N.R.S. §541-050).

8.4  POLLUTION CONTROL

The Department of Health and Welfare is the state's
water pollution control agency.  The Department devel-
ops programs to eliminate or reduce pollution and im-
prove the sanitary condition of water.  It is a
misdemeanor to pollute the waters of any lake,  river,
stream, or ditch.  The Attorney General can maintain
actions to prevent or restrain pollution (N.R.S.  §§
445.010 to 445.060).
REFERENCES

 Dewsnup,  R. and Jensen,  D.  A Summary Digest of State
     Water Laws. National Water Commission, Wash.,
     D.C., 1972.

 Hutchins, Wells A.  Water Rights Laws in the Nineteen
     Western States.Misc. Publication No. 1206,
     U.S.D.A., Washington, D.C., 1971.

 Water for Nevada, Vol. 1--Guidelines for Nevada Water
     Planning. Jan. 1971; Vol. 2—Estimated Water Use
     in Nevada. Jan.  1971; and Vol. 3—Nevada's Water
     Resources. Oct.  1971.  State Engineers Office,
     Carson City, Nevada.
                                                       184

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                                              APPENDIX A REPORT 9

                                                   NEW MEXICO
 9.1   HISTORICAL BACKGROUND

 New Mexico  is an arid state of  121,666  square miles,
 receiving 15 inches of annual precipitation.  Typical
 of many arid western states in  its water  use patterns,
 the state has experienced a slight increase in total
 irrigated acreage each year from 850,000  acres in
 1965  to 1,069,000 in 1974, but  with considerable
 increase in sprinkler irrigation from 20,000 acres  in
 1965  to 159,800 in 1974  (Irrigation Survey).

 In 1898, the Territorial Supreme Court  rules that
 the law of prior appropriation  existed  under the Mexi-
 can Republic at the time of the acquisition of New
 Mexico, and was the settled law of the  territory
 (United States v. Rio Grande Dam and Irrigation Co.,
 9 N.M. 292, 51 P.674, 1898).JIn Albuquerque Land
 and Irrigation Co. v. Guitierrez (10 N.M. 177, 61 P.
 357,  1900), the Territorial Supreme Court stated that
 it is undoubtedly true that the diversion and distri-
 bution of water for irrigation  and other domestic
 purposes in New Mexico is a public purpose.2  Further,
 the courts of New Mexico have consistently held that
 the common law doctrine of riparian rights has never
 been applicable in New Mexico (Trambley v. Luterman,
 6 N.M. 15, 27 P. 312, 1891; Hagerman Irr. Co. v.
 McHurray, 16 N.M. 172, 113 P. 823, 1911).  The ripar-
 ian doctrine was repudiated in  New Mexico as a result
 of the adoption of the laws of  the Mexican Republic
 which included the doctrine of  prior appropriation
 (Snow v. Abalos. 18 N.M. 681, 140 P. 1044, 1914).

 In 1907, New Mexico enacted comprehensive legislation
 governing the appropriation of  waters from a water-
 course (N.M.S.  §75-5-1 to 37).  This legislation,
 with certain amendments, is the law governing the
 appropriation of water today and is the exclusive
 procedure by which a right can  be acquired (Farmers'
 Development Co. v. Rayaldo Land and Irrigation Co.,
 28 N.M. 357, 213 P.  202, 1923).

 Prior to the adoption of the appropriations statute
 in 1907, a water right could be acquired under the
 general laws of appropriation as recognized in the
 western states  (Fanners'  Development Co. v.  Rayaldo
 Land and Irr.  Co., 28 N.M.  357, 213 P.  202, 1923)>
 Under this procedure, a water right could be acquired
 if there was a  diversion and an application of the
water to a beneficial use.   Neither was considered
 sufficient without the other (Albuquerque Land and
 Irr.  Co. v.  Gutierrez. 10 N.M.  177, 6 P. 357, 1900).
 The 1907 appropriation statute provided that all
 claims which had been initiated prior to 1907 would
 be accorded a priority date relating back to the
 initiation of the claim.   This was conditioned by
 the requirement that the user had diligently main-
tained the works to completion and had  applied the
water to beneficial  use.   Provision has been made
 for recording a declaration of these pre-1907 rights.
Once recorded,  the information  is considered prima

     3This decision was reversed in U.S.  v. Rio Grande
 Dam and Irr. Co.. 174 U.S.  690, 1899, but not on this
 point of discussion.

     2For an excellent discussion of the historical
aspects of Hew  Mexico water law, see Hutchins,  The       	
New Mexico Law  of Water Rights, 1955.
     3See Clark, Robert E., "Water Rights Problems in
 the Upper Rio Grande Watershed and Adjoining Areas."          Hhis definition was found  in  the  applicant's
11 Natural  Resources  Journal.  48,  1971.                   petition.
                                                      185
facie evidence of the existence of a water right
(N.M.S. §75-1-2, 75-1-2.1 and 75-1.2.2).

Joint irrigation ditches for a common water supply for
individuals were commonly constructed in  many areas of
New Mexico.  These organizations were commonly re-
ferred to as community ditches or "acequias."  The
water rights of these organizations were  protected by
both the territorial and the state government.   Under
the community ditch concept, the ownership of the
ditch was separate from the ownership of  the water
rights.  Each water right was considered  appurtenant
to the land and owned by the owner of the property
(Holmberg v. Bradford. 56 N.M. 401, 244 P.2d 785,
1952).These "acequias" have, by statute, been made
political subdivisions of the state (N.M.S. §75-14-1
to 75-14-61 and 75-15-1 to 75-15-10).

New Mexico has recognized an unusual water rights doc-
trine.  This is the concept of Pueblo Water Rights.
These rights are the paramount right of a city (as a
successor of a Spanish or Mexican or Mexican pueblo)
to use the water which naturally occurs within the
limits of the old pueblo for the use of the inhabitants.
This concept exists on an expanding scale, the right
grows as the city's needs grow (Cartwright v. Public
Service Co.. 66 N.M. 64, 343 P.2d 654, 1959).  The
pueblo right is an absolute right to the  use of all
waters, both ground and surface, within the city for
the use and benefit of its inhabitants (City of
Albuquerque v. Reynolds. 71 N.M. 428, 379 P.2d 73,
1963).1*  Before a pueblo right may be exercised,
however, notice must be given to all water users who
would be affected by the exercise of the  right.

The New Mexico Supreme Court has considered the Pueblo
Water Right on several instances.  In one case, the
doctrine was found applicable to one New  Mexico com-
munity whose rights were preserved (Cartwright v.
Public Service Co.. 66 N.M. 64, 343 P.2d  654, 1959).
In two others, however, the court held that the
Pueblo Water Right  of a townsite was granted by
officers of the United States government  under the
authority of an act of Congress long after New Mexico
had become a part of the United States and was subject
to and controlled by the laws of the granting sover-
eign.  The land having been acquired from the United
States, the grant carried with it only those rights
and privileges that were accorded by the  law of the
United States (State ex rel Community Ditches v.
Tularosa Community Ditch, 19 N.M. 352, 143 P.207,
1914).In a later case involving a Pueblo Water
Right on behalf of the city of Santa Fe,  the New
Mexico Supreme Court concluded that no grant was
made fay the Spanish King to the villa de  Santa  Fe.
Without such a grant, the villa de Santa  Fe had no
Pueblo Water Right.  No mere colony of squatters could
acquire under the Spanish law this extraordinary power
over the waters of the entire nonnavigable stream
known as a Pueblo Right, even though they were  organ-
ized as a Pueblo.  In effect, the occupany of the
Pueblo by the Spanish military and governmental author-
ities conferred no title on the inhabitants (United
States v.  Santa Fe, 165 U.S.  675. 1897).

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By a  law passed  in  1909  (N.H. Laws 1909, Ch. 128, §2),
the State Engineer  was authorized to grant permits for
appropriations of flood  waters upstream which can re-
sult  in return flows above the works of other irriga-
tors  or appropriators when such uses will not deprive
the lower appropriators  of their reasonable require-
ments  (N.M.S. §75-5-28).5

New Mexico was admitted  into the union in 1912.  The
state  constitution  which was adopted in January 21,
1911,  recognized all existing rights to the use of
water  for beneficial purposes, declared the unappro-
priated water of every natural stream to belong to
the public subject  to appropriation and provided that
beneficial use was  the basis, measure and limit of the
right  to use water  (New  Mexico Const., Art. XVI).
Subsequent legislation in 1927 provided that ground
water  in underground streams, channels, artesian
basins, reservoirs, or lakes having reasonably
ascertainable boundaries was also public water and
subject to appropriation for beneficial use (N.M.S.
§75-11-1).

In 1928, the New Mexico  Supreme Court held that a
right  to the continued use of a vested and accrued
water  right will be maintained and protected as fully
as the right to a continued use of the easement in the
works  by which the  use of the water and the water
right  is effectuated (Pecgs Va]jgy Artesian Conservancy
Dist.  v. Peters. 52 N.M. 148, 193 P. 2d 418, 1948).

New Mexico's ground water appropriation law, which is
still  in effect today, was enacted in 1913 to replace
1927 legislation which had been declared invalid  be-
cause  of technical defects (N.M. Laws 1931, ch. 131).
Significant amendments were added to this legislation
in 1953 and will be discussed in greater detail in
subsequent sections (N.M. Laws, 1953, ch. 64,
see N.M.S. §75-11-19 to 22).

A statute enacted in 1933 provided that where there
has been continuous use of a ditch for purposes of
irrigation for five years, "it shall  be consluvely
presumed as between the parties, that a grant has
been made by the owners of the land, upon which such
ditch  is located, for the use of the same" (N.M.  Laws
1933,  ch.  65).  This statute was amended in 1941 so
that the statute would not be construed so as to pre-
vent the owner ofstthe servient estate from making
alterations, or changes in the location of any ditch
upon his land, provided that such action would not
interfere with the use of the ditch by the dominant
owner  (N.M.  Laws, 1941, ch. 155).

9.2  SUBSTANTIVE LAW

9.2.1  Property Right in Water

The unappropriated water of every natural stream be-
longs to the public (N.M. Const. Art XVI).   Water
flowing in a natural stream is not subject to private
ownership (Albuquerque Land and Irr.  Co.  v.  Gutierrez,
10 N.M. 177, 61  P. 35,  1900).   Any private rights
which do attach are strictly usufructuary rights  to
take the water into physical  possession and apply it
to a beneficial  use (Snow v.  Abalos,  18 N.M.  681,
140 P. 1044, 1914).

After the water right is vested and has been  diverted
into the ditch and reduced to possession, the water is
owned as tenancy in common among the several  parties
(Snow v. Abalos, 18 N.M. 681,  140 P.  1044,  1914).
The [Jew Mexico Supreme Court has held that water
which is reduced to possession becomes personal
property (Hagerman Irrigation Co.  v.  McMurry, 16 N.M.
172, 113 P. oZ3. 1911).  However,  in  State ex rel
State Game Commission v. Red River Valley Co. (51
N.M. 207, 182 P.2d 421, 1945), the New Mexico Supreme
Court held that stored water was public water until  it
was beneficially applied.  The issue  was whether the
public could participate in fishing and other recrea-
tional activities with respect to  waters which were
impounded by a dam which crossed a public stream.

The right which an appropriator gains is a private
property right which is subject to ownership and
disposition (New Mexico Products Co.  v. New Mexico
Power Co., 42 N.M. 311, 77 P.Zd 634,  1937).This
right is an interest in real property (Posey v.  Dove,
57 N.M. 200, 257 P.2d 541, 1953).   An action to quiet
title to an appropriative right and to establish the
right to divert and use water is in the nature of an
action to quiet title to real estate  (Pecos Valley
Artesian Conservancy District v. Peters, 52 N.M. 148,
193 P.2d 418, 1948).

9.2.2  Acquisition of Right

Anyone desiring to acquire the right  to the beneficial
use of the public waters of New Mexico must make appli-
cation to the State Engineer for a permit to appropri-
ate before beginning construction (N.M.S. §75-5-1).6
After filing an application, the applicant must pub-
lish notice of the application once a week for three
consecutive weeks in a newspaper of general circulation
on the stream system (N.M.S. §75-5-4).  Upon receipt
of all required documents and hearing evidence from
interested parties, the State Engineer will determine
if unappropriated water is available.  If water is
available, the application will be approved and the

3
construction is to be completed and the water put to
beneficial use.  On or before the dates set for the
completion of construction or beneficial use, the
works will be inspected by the State Engineer.  Upon
satisfactory completion of the inspection, a license
to appropriate will be issued which conforms to the
permit (N.M.S. §75-5-12).8  The priority relates back
to the initiation of the appropriation if perfected
with due diligence (N.H. Const. Art.  XVI, §2).

In cases where the appropriation is for irrigation,
the permit and the license will allow a rate of diver-
sion consistent with good agricultural practices
(N.M.S.  §75-5-1 to 75-5-37).

This method of appropriation of public waters of
New Mexico is now the exclusive method by which
a right  can be acquired  (N.M.S. §75-5-1 to
ova i lauicj t*nc «Hr i i v-a i» i WH n i i i  ut u^fi VSTI.U UIIM  WMW
appropriator will  be permitted  to begin work (N.M.S.
§75-5-5)7  The permit states the times within which
     5See Clark, Robert Emmet, Hew Mexico Water
Resources Law. 1964, p. 25.
      6The application requires a statement by the
applicant indicating the amount of water to be used
and the period or periods of annual use along with any
data necessary to describe specifications or the like
showing the method and practicability of any
construction.

      Construction time is a maximum of 5 years plus
an allowable 4-year extension.

      BThe license is needed as the permit is only a
tentative right to proceed.
                                                      186

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75-5-37).9  The priority of the appropriator's right
dates from the time the right was initiated (N.M.S.
§75-5-1).  However, under a very limited set of circum-
stances, it is still possible to acquire a water right
using traditional methods of appropriation.  This right
exists only for waters which are a part of a natural
stream or watercourse.  The exception to the permit
system was noted in a decision involving two ranchers
who sought a determination of rights to water in a draw
which formed a coimon boundary between their lands.
Neither of them had a permit from the State Engineer to
appropriate water.  The trial court dismissed their
action as being premature in that their failure to get
a permit was a failure to exhaust administrative
remedies (May v. Torres, 86 N.M. 62, 519 P.2d 293,
1974).

The New Mexico Supreme Court held that common law
appropriation would suffice in this case.  The court
held that only the "waters of every natural stream or
watercourse belongs to the public" (N.M. Const.,
Art. XVI, §2; and N.M.S. §75-1-1).  If the draw in-
volved was not a natural stream or watercourse, then
the Water Code requiring a permit to appropriate
was not applicable.

Ground Water-
Underground water is the property of the public in
New Mexico and is subject to appropriation for bene-
ficial use (N.M.S. 575-5-1).10  New Mexico statutes
impose the doctrine of prior appropriation on ground
water usage (see Yeo v. Tweedy, 34 N.M. 611, 286 P.
970, 1929; and State ex rel Bliss v. Dority. 55 N.M.
12, 225 P.2d 1007, 1950).

There are two procedures for appropriating ground
water in New Mexico.11  The choice of procedure de-
pends on the amount of water desired (in the case of
irrigation), or  upon the use to be made of the water.
Any person, firm, or corporation desiring to use
underground water for livestock, for household, or
other domestic uses or for irrigation of not more than
one acre of noncommercial trees, lawn, or garden, may
do so after making application to the State Engineer.
The State Engineer "shall issue a permit to the
applicant to so  use the waters applied for" on the
filing of such an application  (N.M.S. §75-11-1).  No
prohibition against injuring or impairing existing
rights is found  in this part of the statute.  Presum-
ably, the small  amounts of water used in these uses
would not impair existing rights.  This  is an
assumption that  would be subject to question  in popu-
lous areas.

 If a person, firm, corporation, or the state of New
Mexico wants to  use underground water in an amount
not to exceed three acre-feet  for a period not to
exceed one year  for prospecting, mining, the con-
struction of public works, highways or roads, or
drilling operation for developing natural mineral
resources, the applications found in New Mexico
      9See  also  Fanners'  Development  Co.  v.  Rayaldo
 Land  and Irr. Co., 28  N.M.  357,  213  P. 202,  1923.

    10See  also  N.M.S   §75-11-2,  stating  that bene-
 ficial  use is the basis,  the measure and the limit
 to  the  right to the use  of  underground waters.

    "See  Rules and Regulations—Governing  Drilling
 of  Wells and Appropriation  and Use of Ground Water
 in  New  Mexico,  from the  Office of the State  Engineer.
 1966.
Statutes, Section 75-11-3 (1953)  shall  be  used.12
Separate applications must be  made  for  each  proposed
use, whether in the same or in different basins.
After these applications are filed,  the State  Engineer
must examine the facts.   If it is determined that the
proposed use will not permanently impair existing
rights of others, "he shall grant the application"
(apparently,"application" is used in the same  sense
as "permit" in Section 75-11-1).  If existing  rights
will be impaired,13 then the State  Engineer  will pub-
lish notice and provide for a  hearing on the proposed
application.14

In cases where the appropriation  is for more than
three acre-feet of water for irrigation, or  where the
proposed appropriation is for  industrial uses, a per-
son, firm, or corporation must again make  application
to the State Engineer.  If the application is  approved,
the permit and the verified statement shall  be recorded
in the office of the County Clerk of the county within
which the land is located  (N.M.S. §75-ll-3(c)). If
objections or protests are filed  within the  time pre-
scribed  in the notice, or  if the  State  Engineer is of
the opinion that the permit should not  be  issued, the
application may be denied with or without  a  hearing
(N.M.S.  §75-11-3(7).

The definition of the word "permit" in  New Mexico  is
apparently  synonymous with single approval of  an
application.  In other words,  the permit  does  not
imply an agreement between the state and  the user
which cannot be  revoked for a violation of its terms.
       12The application  must designate the particular
 source from which  the water is to be appropriated,
 the beneficial  use to which it will be applied, the
 location of the proposed well, the name of the owner
 of the land on  which the well is to be located, the
 amount of water applied  for, and, if the use is
 irrigation, the description of the land to be irri-
 gated and the name of its owner.  If the land on which
 the well is located is privately owned and the appli-
 cant for the well  is not the land owner or does not
 own or is not the  lessee of the mineral or oil and
 gas rights under the land, then the application must
 be accompanied  by  an acknowledged statement executed
 by the owner of the land on which the well is proposed
 to be located to the effect that the applicant is
 granted access  across the land to the proposed drill-
 ing site and has permission to occupy such portion or
 portions of the owner's  land as is necessary to drill
 and operate the proposed well.  The provisions for
 this acknowledged  statement do not apply to the
 state of New Mexico.

       13The question of impairment of existing rights
 is in fact a question to be decided on a case-by-
 case basis.  It has been held, for example, that a
 lowering of the water level in a nonrechargeable basin
 which lowered the  water tables of prior appropriators
 which increased their pumping costs and lowered their
 yields was not  an  impairment of their rights as a
 matter of law.   See Mathers v. Texaco, Inc., 77 N.M.
 239, 421 P.2d 771  .        It has also been held that
 a "negligible effect" on surrounding artesian wells
 does not mean as a matter of law that the surrounding
 artesian wells  were impaired.  See City of Roswell v.
 Berry, 80 N.M.  110, 452 P.2d 179.

        ll4The notice is to be published in a newspaper
 of general circulation in the county where the
 proposed well  is to be located.  It must appear once
 a week for three consecutive weeks.
                                                      187

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 Prescriptive Water  Rights--
 There  is some question  in  New Mexico as to whether a
 water  user may lose a water right to another by ad-
 verse  possession.   One  decision of the New Mexico court
 concluded that no right had been acquired by adverse
 possession, and questioned whether "such a right can
 be acquired under our law" (State ex rel Erickson v.
 McLean. 62 N.M. 264, 308 P.2d 983, 1957).It would seem
 from the forfeiture statute that there could be no ad-
 verse  possession in New Mexico as the water would
 have already reverted to the public by nonuse, and
 not to the adverse  possessor.

preferences^-
 New Mexico has no statutory preference system for
water  users.

 9.2.3  Adjudicating Uater  Rights

Hew Mexico has a statutory procedure for the adjudica-
tion of all water rights on a stream system in order
to determine all existing  rights in a single action.
This would seem to  include pre-1907 rights, post-1907
rights, Pueblo rights and any rights administered
under the community ditch or "acequia."  For this
adjudicatory proceeding, the State Engineer is to
prepare a hydrographic  survey and investigate each
stream or other water source.  Upon completion of
this survey, a copy is  delivered with all other
necessary data in the State Engineer's possession to
the Attorney General.  The Attorney General, at the
request of the State Engineer, initiates an action
 in behalf of the state to adjudicate the rights of
the affected water users.

 If the suit is initiated by a private party, the
Attorney General may intervene in behalf of the state
if the public interest requires it.   Upon completion
of the proceedings, the district court enters a decree
which contains all  elements necessary to define indi-
vidual water rights (N.M.S. §75-ll-8(a).

The decree resulting from the adjudication is prepared
and filed with the office of the State Engineer.  The
cost of this is borne by the parties to the adjudica-
tion.  The decree is to declare the priority, amount,
purpose, periods, and place of use,  and as for water
used in irrigation the specific tract of land to which
the right shall be appurtenant, together with such
other conditions as may be necessary to define the
right and its priority are included in the decree
(N.M.S. §75-4-8).  Rights of people who cannot be
located may be adjudicated after publishing notices to
such oeople by publication (N.M.S.  §75-4-6).

This procedure has been  held to include the rights
claimed by appropriators from artesian basins within
a river system (N.M.S.  §75-4-6(6).

There are additional ways in which conflicts may be
resolved.   To approve an application to appropriate
water, the State Engineer must determine if there is
unappropriated water in the source (N.M.S.   75-5-5).
Disputes arising between applicants  and the owners of
established rights on a system over a finding of the
State Engineer must be resolved.   This may be
accomplished by the State Engineer after protests are
filed and a hearing is held.   Parties dissatisfied
with the decision of the State Engineer may appeal
this decision to the District Court.   This appeal,
however, is limited to questions  involving an abuse
of discretion (Fellows v. Shultz. 81 N.M. 496, 469 P.2d
 141,  1970).15   Certain conflicts may therefore be
 resolved at  the time a new right is initiated (N.H.S.
 §75-6-1 to 75-6-3).  This does not foreclose subse-
 quent action by an owner of a water right.  The water
 owner may maintain an action for damage (Tevis v.
 McCrary. 72  N.M.  134, 381 P.2d 208, 1963), or seek
 injunctive relief if a right may be impaired (Harkey
 v. Smith, 31 N.M. 521, 247 P. 550, 1926).

 9.2.4  Conditions of Use

 Beneficial Use--
 Beneficial use  is limited to the amount of water
 needed for a particular use.  The duty of water in
 each case is to be determined by the State Engineer,
 The appropriative right is a right to divert a quant-
 ity of water from a stream for beneficial use (Snow v.
 Aba!os. 18 H.M. 681, 140 P. 1044, 1914).  In State
 ex rel Reynolds v. Miranda (83 N.M. 443, 493, P.2d,
 409), the court held that:

      A man-made  diversion is necessary to the
      establishment of a water right for agri-
      cultural  purposes; it was not enough that
      the claimant and his predecessors had
      turned cattle into a natural wash to graze
      or to cut the grass produced by occasional
      natural drainage.

 The amount of water an appropriator has a right to use
 is measured by  the quantity of water actually put to
 beneficial use  (N.M.S. §75-5-17).15

 New Mexico statutes place a limitation on all rights
 in that the State Engineer is instructed not to allow
 diversion of more water for irrigation than can be
 used consistently with good agricultural practices
 to produce the  most effective use of the water (N.M.
 S. §75-5-17).   This follows from the constitutional
 limitation on a water right to that amount benefic-
 ially used (N.M.  Const., Art XVI, §3).  What is to
 be considered by  the State Engineer in determining
 the proper duty of water is not set forth by statute.
 However, the New Mexico Court has indicated some of
 the factors to  be determined in a consideration of the
 proper duty of water.   These include:   (1) the amount
 of water diverted; (2) the place of diversion as
 related to use; (3) the amount necessary for a partic-
 ular crop or land; (4) the season of the year; and
 (5) the general irrigation or water use practices
 followed in the area (State ex rel  Reynolds v. Mears,
 86 N.M. 510, 525  P.2d 870, 1974).
      15Formerly, the legislature had permitted a
trial de novo in the appeal from a decision of the
State Engineer.  This was held to be an unconstitu-
tional delegation of power to the courts as it would
have substituted judicial action for administrative
action based on expertise.  It was also held that the
reviewing court could not hear new evidence in addi-
tion to that heard by the State Engineer.

      16This statute changed the duty of water con-
cept from the former position of limiting water to
one cubic foot per second for every 70 acres of land
to the present position of defining theduty of water
in terms of actual beneficial use.

     17This section formerly provided a duty of
water allowance not to exceed one cubic foot per
second for 70 acres delivered on the land.
                                                      188

-------
When measuring the duty of water from a well supply,
it is measured at the well and not on the land where
the water is used (State ex rel Reynolds v. Lewis. 84
N.M. 768, 508 P.2d 577, 1973).This includes any
carriage loss to be accounted for as well.

Beneficial use concepts preclude excessive diversions
of water made in an attempt to maintain a water right
(State ex rel Erickson v.  McLean. 62 N.M. 264, 308
P.2d 983).1B

This constitutional provision merely declares the
basis of the right to the use of water, and does not
prohibit the regulation of the enjoyment of that
water (Harkey v. Smith, 31 N.M. 521, 247 P. 500,
1926; Snow v. Abalos. 18 N.M. 681, 140 P. 1044, 1914).
The appropriation statute encompasses the concept of
beneficial use as the controlling measure of the
right to appropriate water:

     In the issuance of permits to appropriate
     water for irrigation or in the adjudication
     of the rights to the use of water for such
     purposes, the amounts allowed shall not be
     in excess of the limits imposed by the amount
     of water allowed by permit or by adjudication.
     The State Engineer shall permit the amount
     allowed to be diverted at a rate consistent
     with good agricultural practices, and which
     will result in the effective use of the
     available water in order to prevent waste
     (N.N.S. §75-5-17).

This statute was a major change in the water law of
New Mexico.  It removed the duty of water concept
embodied in a certain amount for a certain number of
days depending on the use of the water.  One decision
held that "it is the beneficial use that is of primary
importance, not the particular purpose of ultimate use
to which the water is put" (Kaiser Steel Corp. v.
W. S. Ranch, 986, 1970).  The implications for salin-
ity control are clear, for good agricultural practices
cannot include practices which leach salt from the
earth and deposit in the water supply (State ex rel
Reynolds v. Hears. 86 N.M. 510, 525 P.2d 870, 1974).

Waste—
The waste of water can be considered as the opposite
of using the water beneficially.   An appropriator is
not allowed to waste water (Snow v. Abalos, 18 N.M.
681, 140 P. 1044, 1914).  Waste water is that water
which has been used by a prior user which has left
his lands and goes upon the lands of another, or
otherwise becomes available for use by another, with-
out returning to a natural watercourse.  Subsequent
users of waste water cannot complain if this source
is curtailed or eliminated.  Water cannot be diverted
in excess of good agricultural practices and the use
must be effective in order to prevent waste (N.M.S.
§75-5-17).  An appropriator cannot use any water in
excess of his beneficial use requirement and junior
appropriators are entitled to use any excess water
(Horley v. United States Borax and Chemical Corp.,
78 N.M. 112, 428 P.2d 651, 1967).The owner of an
irrigation right is liable for injury willfully or
negligently inflicted by unnecessary use of the
water (Stroup y. Frank A.  Hubbel  Co.. 27 N.M. 35,
192 P. 519, 1920).
      What may be a reasonable beneficial  use
      where water is present in excess of  all
      needs would not be a reasonable beneficial
      use in an area of great scarcity and need,
      and that what is beneficial  use at one
      time may, because of changed conditions,
      become a waste of water at a later time
      (Trelease, 1957, pp. 1, 14,  16).

It is a public nuisance for an artesian well to be
allowed to waste water (N.M.S. S75-12-7)19  The
owner who permits the waters of such a well to be
wasted is guilty of a misdemeanor  (N.M.S.  §75-12-9).20
It is unlawful to conduct artesian water through  any
ditch, channel or conduit so as to permit  more than
a 20% loss from the point of appropriation to the
point of beneficial use (H.M.S. §75-12-9).  It is
unlawful to use artesian water for the purposes of
stock watering except where the water is carried
through pipes to watering troughs  fitted with fleat
feeds or other means of control to prevent waste
(N.M.S. §75-12-11).

9.2.5  Manner in Which Rights May be Adversely Affected

Forfeiture and Abandonment—
New Mexico statutes provide that when the  owner of a
water right fails to beneficially use all  or part of
an appropriation for a period of four years, the
unused water reverts to the public and is  considered
unappropriated water (N.M.S. §75-5-26 and  75-11-8).
The legislature has amended the forfeiture statute
with respect to nonuse.  After 1965, forfeiture can
only occur after four years of nonuse and  one year's
notice from the State Engineer (N.M.S. §75-5-26 and
75-11-8).  The law provides that a forfeiture will
not necessarily occur if circumstances beyond the
control of the owner have caused the shortage of
water and erosion of a channel making it difficult
to get water to irrigated land.  Where water fails
to reach an appropriator's point of diversion, there
will be no loss of water rights (New Mexico Products
Co. v. New Mexico Power Co., 41 N.M. 311,  77 P.2d
634, 1937 (drought conditions excuse nonuse); Jones
v. Anderson. 81 N.M. 423, 467 P.2d 995, 1970 (water
failing to reach appropriator will not cause forfeit-
ure)).

A holder of a permit to appropriated underground  water
will forfeit the right for continued nonuse for four
years.  This forfeiture also carries the one-year
notice requirement (N.M.S. §75-4-2 to 75-4-11).  One
year extension periods may be granted by the State
Engineer upon a showing of good cause (State ex rel
Reynolds v. Sharp, 66 N.M. 192, 344 P.2d 943, 1959).
     18An excessive diversion of water, through waste,
cannot be regarded as a diversion to beneficial use.
He who excessively diverts through waste is appropri-
ating to himself that which belongs to others.
     19 Waste is defined as causing,  suffering,  or
permitting any artesian water to reach any pervious
stratum above the artesian stata before coming to the
surface of the earth, or causing, suffering,  or  per-
mitting any artesian well to discharge unnecessarily
upon the surface of the ground, unless said waters
are to be placed to a beneficial use  under the con-
stant supervision of the person using such water, or
his employee, and through a constructed irrigation
system.  M.M.S. §75-12-6.  The exceptions to  the
above rule are ornamental ponds and fountains.

     2(i The elements of traditional appropriation doc-
trine law are not dead.  For example, a man-made diver-
sion is necessary to establish a water right  for agri-
cultural purposes; it is not enough to let cattle
graze in a natural wash to claim a right to the  water
necessary to grow the grass.  See State ex rel Reynolds
v. Miranda, 83 N.M. 445, 493 P.2d 409.
                                                      189

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As an example of nonuse which has resulted in for-
feiture  in New Mexico, an owner of an artesian well who
simply allowed it to run uncontrolled over grazing
land had his right forfeited as a nonbeneficial use
of water (State ex rel Reynolds v. South Springs Co.,
30 N.M.  144, 452 P.2d~478, 1969).  This case turned
on the fact that it was a nonbeneficial use, however,
there is a good argument that it was wasting the water
and so the court could easily have based its decision
on the policy of prohibiting the waste of the state's
water.

There is a fundamental difference between forfeiture
and abandonment.  A forfeiture occurs by nonuse of
water.  The intention of the appropriator is immater-
ial.  An abandonment, however, cannot occur without an
intent to abandon or forsake the right (State ex rel
Reynolds v. South Springs Co., 80 N.M. 144, 452
P.2d 478, 1969).Failure to use the water for an un-
reasonable time cannot in itself result in an aban-
donment of the right.  It may, however, be construed
as evidence of an intent to abandon (Pioneer Irrigat-
ing Ditch Co. v. Blashek. 41 N.M. 99, 64 P.2d 388,
1937).

Adverse Possession—
Water rights cannot be lost by adverse possession
(State ex rel Erickson v. McLean. 62 N.M. 264, 308
P.2d 983, 1957).

Condemnation--
Any person may exercise the power of eminent domain
to acquire right of ways for the construction, oper-
ation, and maintenance of facilities for the storage
and conveyance of water for beneficial purposes
(N.M.S. 575-1-3).

Individuals are given the power to condemn land and
water because the right to use water for irrigation
purposes is a public use (Young v. Dugger, 23 N.M.
613, 170 P. 61, 1918).   An existing canal may be en-
larged by condemnation by someone other than the
owner to carry additional  water (N.M.S. 575-5-14).
However, a city was prevented from condemning a
community acequia because the ditch was already
devoted to a public purpose (Albuquerque v. Garcia,
17 N.M. 445, 130 P. 118, 1913~T

Enforcement of Beneficial  Use or Waste Concepts—
An appropriator is limited to the quantity of water
specified in his j>ermit that is being beneficially
used and any unused water is subject to the for-
feiture statute.   The State Engineer will not allow to
be diverted more water than is consistent with good
agricultural practices and will  result in the most
effective use of available water, to prevent waste
(N.M.S. §75-5-17).   Therefore,  an owner of a water
right cannot use water in excess of his beneficial
use requirements (State ex rel  Community Ditches v.
Tularosa Community Ditch,  19 N.M. 352. 143 P. 207.
19147:

Any water not beneficially used  for four years is
subject to forfeiture and reversion to the public.
The user is given notice by the State Engineer and
is given one year to beneficially use the water.
In effect,  it takes five years  before the water is
forfeited.

9.2.6  Legal .Incentives and Disincentives for More
       Efficient Hater Use Practices

Irrigation Return Flow—
A downstream senior appropriator is entitled to have
the stream flow in a sufficient quantity to satisfy
his appropriation.  Thus, an upstream junior appropri-
ator cannot use water if that use would deprive the
downstream senior of his appropriated quantity.

       Artificial surface waters as  distinguished
       from natural surface waters are hereby
       defined for the purpose of this act as waters
       whose appearance or cumulation is due to es-
       cape, seepage, loss, waste, drainage, or
       percolation frora constructed works either
       directly or indirectly and which depends
       for their continuance upon the acts of man.
       Such artificial waters are primarily private
       and subject to beneficial use by the owner
       or developer thereof, provided that when such
       waters pass unused beyond the domain of the
       owner or developer, and are deposited in a
       natural stream or watercourse, and has been
       applied to beneficial use by the owner or
       developer for a period of four years, from
       the first appearance thereof, they shall be
       subject to appropriation and use provided
       that no appropriator can acquire the right
       excepting by contract, grant, dedication,
       or condemnation as against the owner or
       developer compelling him to continue such
       water supply (N.M.S. §75-5-25).

This statute is significant in that tailwater would
fall under this definition and would, therefore, be
subject to capture and reuse by the owner of the irri-
gation works causing the tailwater to accumulate.  It
is of further significance in that it provides that a
downstream user who has appropriated the water cannot
force the owner to continue the practice which allowed
it to accumulate.  Thus, one who is presently irrigat-
ing in such a manner as to waste water or to apply
excess water to his fields resulting in a salinization
of the stream cannot be compelled to do so, and in fact
has the right to stop the use and capture any excess
and reuse it or recycle it.  Thus, this statute appears
to be a very significant weapon in any battle against
salinity in return flows.

There appears, however, to be a conflict in New Mexico
law.  While the appropriator is entitled to beneficial
use requirements, the waste of water is not permitted
(Snow v. Aba IPS, 18 N.M. 681, 140 P. 1044, 1914).21
Junior appropriators are entitled to use and rely on
excess water coming to them from an upstream senior
appropriator as the source of their appropriation
(State ex rel Community Ditches v> Tularosa Community
Ditch, 19 N.M. 352, 143 P. 207, 1914; Worley v. United
States Borax and Chemical Corp., 78 N.M. 112, 428
P.2d 651, 1967).

The concept that junior right holders are entitled
to use excess water from an upstream user results
from the assumption that once water seeps below the
surface of the land, it loses its private character
and becomes public water subject to appropriation
(Applications of Langenegger, 64 N.M. 218, 326 P.2d
1098, 1958).

The State Engineer will approve applications for per-
mits under conditions which would allow considerable
return flows to loser users if their rights will not
be adversely affected {N.M.S. §75-5-28).

Salvaged and Developed Waters—
Implementation of new irrigation practices could re-
sult in a savings of water.  However, appropriators
     21 See also N.M.S. 575-5-17 which permits the
State Engineer to restrict a diversion in order to
prevent waste.
                                                     190

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 who  have  relied  upon  return  flows  are  given protection
 by law  and  cannot  be  deprived.

 Additional  water,  if  increased  by  virtue  of the  labor
 of the  appropriation  through more  efficient practices
 or capturing water before  it leaves  the appropriator's
 control,  is the  property of  the person who develops  or
 salvages  it (Millheiser v. Long. 10  N.H.  99,  61  P.
 Ill,  1900;  Keeney  v.  Carillo. 1 N.M. 493, 1883).

 Provision for Transfer of  Mater Rights and Diversions-
 Water rights may be transferred (N.M.S. §75-5-24),22
 or leased (N.M.S.  §75-40-1 to 75-40-7).   Under these
 statutes, a right  holder may transfer  water from one
 place on a  stream  to  another.   An  appropriator could
 transfer or lease  part of  a water  right to a  point
 downstream  to satisfy the junior appropriators.
 Extra income generated by  such  practices  would encour-
 age  better  irrigation practices.

 The  owner of a water  right appropriation  may  change
 the  use of  the water, the point of diversion, the
 place of storage,  or  the use of the  water without
 losing  priority  (Dewsnup,  1973, p. 520).  The right
 to change the above incidents of use is inherent in
 the  property right found in a water  right (Clodfelter
 v. Reynolds, 68  N.M.  61, 358 P.2d  626, 1961;  Lindsey"
 v. McClure, 136  F  2d  65)  Changes  must, however,
 be accomplished  without injury  to  others  (see
 Templeton v. Pecos Valley Artesian Conservancy Dist.,
 65 N.M. 59, 332  P.2d  465, 1958).
What constitutes impairment of existing rights is not
clear in case law.  Early decisions emphasize any
impairment.  In Heine v. Reynolds, which involved an
application to change the location of a well and the
place of use, the application was denied due to a
finding that there would be increased salinity in the
water basin as a result of increased pumping caused
by the new well.  The court specifically rejected the
argument of the applicant that "impairing existing
rights" should be read as "substantially impairing
existing rights" (69 N.M. 398, 367 P.2d 708, 1962).

In Mathers v. Texaco (77 N.M. 239, 421 P.2d 771,
1967), however, there was undisputed evidence that
the proposed new withdrawal would lower the level of
the basin, would decrease the productivity of exist-
ing wells, and would result in increased pumping costs.
The New Mexico Supreme Court held that these effects
would not constitute an impairment of existing rights.
This court rejected the position that any impairment
was sufficient.  Instead, they relied on the very
position that they rejected in Heine, that the harm
had to be substantial .

Following the Mathers  decision, the New Mexico court
rejected the claim that reducing the water level  of
an aquifer 16 feet constituted actionable impairment.
Again, the Heine position was upheld but rejected as
it applied to the facts.  The court reasoned that
"negligible impairment" did fall  under the statute
(80 N.M. 110, 452 P.2d  179, 1969).

The latest utterance by the New Mexico Court rejected
a petition to resist a  change in place of diversion on
the grounds that there  would be a change in the aquifer
or river as a result of the change (82 N.M. 416,  483
P.2d 297, 1971).   The  court, by implication, rejected
    22The water may be severed from the land to
which it is appurtenant without loss of priority if
it is transferred to other lands.   N.M.S.  575-5-22.
the Heine decision which relied on the language of
the statute.

There have been several cases dealing with changes in
points of diversion.  The issue concerns what differ-
entiates a change in point of diversion from a new
appropriation.  The cases deal primarily with the
interrelationship of ground and surface rights.  These
cases were a result of permitting a surface user to
supplement existing water supplies from ground water
in lieu of a traditional priority call.

The above solution, while postponing the inevitable,
has complicated the problem.  The issue arises out of
a sense of equity, a view of economic loss, and a
strict application of the law.  The situation existed
in many areas where very old surface water rights
existed.  In times of shortage, the junior appropria-
tors were forced to cease demands in order that the
senior rights would not be impaired.  Often, however,
there were ground water users pumping in the area
with priorities junior to surface rights.  It was
inequitable to force the junior surface appropriators
to discontinue use while ground water pumping contin-
ued.  It would have caused economic havoc to discon-
tinue ground water flows to restore surface flows.  Yet,
it was unlawful for a senior appropriator to suffer a
water shortage in the face of water being delivered to
junior users.

In an early case involving a proposed change in a
point of diversion (Application of Langenegger, 64 N.M.
218, 326 P.2d 1095, 1958), the applicants source of
water was seepage from constructed works.  When the
source of the seepage was discontinued, the appropri-
ator sought a permit to drill a well.  The court held
that the applicant's appropriation was not public
water, that the permit would be to tap a new source
and that it should be denied.

In this case, the New Mexico Supreme Court seemed to
confuse the types of water available.  It first held
that the source was public water as it had entered
the ground.  This was consistent with other cases.
The court reversed itself, however, and declared this
to be private water.  It further confused the issue
by stating that this water was on the surface and
artificial as it was private.  Other cases have held
that once water escapes into the ground it is public
and subject to appropriation.

This case created confusion in light of "follow the
source" cases, because the appropriator could not
follow seepage to its source—in this case a reservoir
--and thereby get a reservoir right.

Another view of the problem was presented in Templeton
v. Recos Valley Artesian Conservancy District (65 N.M.
59, 332 P.2d 465, 1958).This case involved an appli-
cation to change a point of diversion from a surface
right to a well right.   The facts of the case indicated
that the river from which the prior surface right was
fulfilled was formed as a result of artesian pressure
from the surrounding land.  The river had very little
water in its surface flow except for that water being
pushed up from the underground aquifer.

Because of extensive well  drilling in the surrounding
area, the level of the  aquifer had been lowered to a
point which impaired the surface rights of the appli-
cant.  The application  sought to permit the owners
of the surface rights held prior to the wells to move
their points of diversion upstream to a well  so that
their water right could be fulfilled.
                                                     191

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The issues of the case were whether the source of the
water was the same and whether the owner of a water
right, in order to fulfill an appropriation, had the
right to follow the source.

The change was permitted by the New Mexico Supreme
Court.  The court noted that granting the change would
only restore the water right as the water received
would have been received had it not been for the later
wells.  It was the same source of water into which all
users tapped even  though some held surface rights and
others held well rights.

The court found no impairment of existing rights
though it conceded this to be a fact questioned in
every case.  It noted that water rights are taken
subject to all prior appropriation from a source.
This "subject to" dictum has not been relied upon in
later cases.  Rather, language forbidding a change if
existing rights will be impaired has emerged.  This
is inconsistent with the "subject to" language found
in Tempieton, for it is clear that one of the incidents
of a water right is the ability to change the point of
diversion if he will harm existing rights even those
junior to him—then it is clear that the strict
"subject to" language is not being followed.

Of greater significance regarding future cases is
the statement that an appropriator is entitled to rely
on all sources which feed the main stream.  This was
dictum in Tempieton because the source involved was
a common source for all the water in question.  This
is not always the situation.

The Tempieton view of water as a hydrologic whole has
been strained in later decisions.   In Reynolds v.
Wiggins (74 M.M. 670, 397 P.2d 469, 1964), the
applicant sought to take drainage water, inject it
into a well, and recover it later.   The State Engineer
denied the application on the ground that no unappro-
priated water remained.   The decision is unclear in
that the applicant sought only to ask to recover what
was injected into the well.

In Durand v. Reynolds (75 N.M. 497, 406 P.2d 817, 1965)
1965), the applicant sought to drill  a well  to satisfy
a prior right.  The application was refused.  The court
stated that a change could only be permitted where
there would be impairment of existing rights.  The
applicants argued that the water desired came from the
same source so there^could be no impairment.  The
court replied on two-levels.

First, it held that simply because water was taken
from the same source did not necessarily mean that
there would be no impairment of existing rights.23
The court noted that fluctuations might occur in an
uneven fashion which would impair existing rights.
For the application to be approved, the applicant
must first show even fluctuation throughout the
basin.21*  This the applicant failed to do.
     23Existing rights "include rights both junior
and senior to the right seeking a change in point of
diversion."  See "Groundwater Law and Administration:
A New Mexico Viewpoint," by F. Marian Flint, Proceed-
ings of the Fourteenth Annual Rocky Mountain Mineral
Law Institute, Tucson, Arizona, July 13, 1968,
p. 557.

     2l(The court cited In Re Hobson, 64 N.M. 462,
330 P.2d 547, 1958, for this proposition.
Secondly, the applicant failed to show that the
water on which the new diversion would draw was the
source of the existing right.  To grant a change in
the point of diversion would be to place the appli-
cant on a completely new source.  This would be a
grant of a new right rather than a change of an old
one.

The court ignored the "subject to" dictum of Tempieton
and relied upon the applicant's failure to show that
existing rights would not be impaired and that the
source of water was the source for the existing right.

The issue was further clouded in Kelley v. Carlsbad
Irrigation District (76 N.M. 446,Tl5P.£d 849,
1966).In this case, the applicant for change had
a surface right above a reservoir.  The applicant who
had never taken water from the reservoir proposed to
let surface water flow into the reservoir.  The
applicant then sought to capture it by drilling a well
into the aquifer below the reservoir.  In essence, the
applicant wanted to use the ground as an underground
storage area and transportation system.

The court refused the application.  First, it noted
that the aquifer below the reservoir had been fully
appropriated.  To the argument that the applicant
merely wanted to have the same water but in a differ-
ent place, the court replied that once the water
percolated into underground, it lost its identity as
the applicant's water and was subject to appropriation.
The decision makes little sense if water is viewed
hydrologically as one system.  It seems to be a dis-
tinction without a difference to say that one can go
up a stream to find the same source of water, as in
Tempieton, but cannot let water flow downstream and
recapture it.

The most recent change of diversion area decision is
Langenenner v. Carlsbad Irrigation District (32 II.M.
416, 483, P.2d 297, 1971).in this case, the appli-
cants'  rights to irrigation water had been endangered
because of pumping from the basin within which their
well was located.  The case involved two water stor-
age areas, one overlying another.  The area closer
to the surface was supplied by the deeper one by
artesian pressure.  The applicants wanted to drill
into the deeper well to fill their entitlement.  The
court allowed the change saying that, subject to the
limitations that other rights not be injured, the
prior user could rely on all sources of the main
stream back to the beginning of the watershed.   This
was an expansion of Tempieton which dealt with pur-
suing the source.

The Durand case was distinguished in that it dealt
with a situation where the applicants had failed to
show that the source to be tapped was the actual
supply of the present right.

The common assumption in all the cases is that exist-
ing rights must not be injured.   The prior user should
have the right to shut down the other users until  his
right is filled rather than be forced to look for a
change in point of diversion.   However, the effect of
the cases is to impose upon a senior appropriator
the burden of seeking a permit to drill a supplemental
well, rather than granting him the traditional  bene-
fits of a priority call.

In W. S.  Ranch Co.  v.  Kaiser Steel  Corporation  (388
F.2d 257)25 the court held:

     25Reversed and remanded on  other grounds,  391
U.S. 593, 88 S.  Ct.  1753.
                                                      192

-------
      A prior court decree which had adjudicated
      the water rights in a stream system could
      be accepted as proof of the amount of water
      actually applied to a beneficial  use by a
      junior appropriator which was sought to be
      transferred by changing the point of diver-
      sion to a place above that of a senior
      appropriator, even  though the junior appro-
      priator had not made an affirmative showing
      that the maximum use to which it  was entitled
      had been applied to a beneficial   use and
      that a transfer could be made without detri-
      mental  effects to existing rights.

 The effect of these provisions is to give the State
 Engineer great powers over water management within
 the state.   These powers emerge from control  over
 the granting of a water  right, transfers of rights,
 changes  of use,  and changes in points  of diversion.

 9.2.7  Waste Hater Disposal  and Drainage

 There is  no  statute in New Mexico which  gives the
 right to  use diffused surface water.   Walker v.  New
 Mexico and S.P.R.R.  (165 U.S.  593, 1897) held that a
 landowner has  a  right to capture and use such water.
 However,  an  upper owner  may not artificially collect
 diffused  surface water and discharge it  on his lower
 neighbor  (Rix  v.  Town of Alamagordo. 42  N.M.  325,
 77 P.2d  765,  1938).

 Drainage  water flowing in  artificial drainage systems
 had been  held  to be the  property of the  owner of the
 works  so  long  as  it is confined to the owner's prop-
 erty  (Hagerman Irr.  Co.  v.  East Grand  Plains  Drainage
 Dist..  25 N.M.  649.  187  P.  555. 1920).While the
 owner  of  an  irrigation right  is not required  to  use
 water  in  such  a  manner that no irrigation runoff
 reaches lower  lands,  the appropriator  is responsible
 for injuries willfully or  negligently  inflicted  by
 unnecessary  use  of the water  (Stroup v.  Frank A.
 Hubbel Co.,  27 N.M.  35,  192 P.  519,  1920).Thi?
 holding seems  to  be  significant in the area of salin-
 ity control  in that  one  who knowingly  uses more  water
 than  is consistent with  good  irrigation  practices
may have  created an  actionable situation in that the
 injury  (through  increased  salinity)  has  been  negli-
gently inflicted  by  the  unnecessary  use  of water.

 9.3  ORGANIZATIONAL  AND ADMINISTRATIVE ASPECTS

 9.3.1  State Water Agencies

The State  Engineer  is the  principle officer charged
with the  administration of water  rights.  The  State
Engineer  has the duty of administering water to right
holders.  One of the  prerequisites for meeting this
duty is the ability  to adequately measure water
flows.  Accordingly, every ditch owner must upon re-
quest of the State Engineer, construct and maintain
a substantial headgate at the point of diversion.
The appropriator may be required to construct a
measuring device, of a design approved by the State
Engineer, for measuring and apportioning water (N.M.
S. §75-5-19).  This power extends only to points of
diversion within the state, not to waters flowing
into New Mexico from a diversion point outside the
state  (Turley v. Furman.  16 N.M. 253, 114 P. 273).

The State Engineer has the powers of general super-
vision of waters of the state of New Mexico and of
the measurement, appropriation and distribution there-
of (N.M.S. §75-2-1 and 75-2-9).  On appeal, the actions
and decisions of the State Engineer are presumed to
be corredt (State v. Myers. 64 N.M. 186, 326 P.2d
                                                     193
 1075,  1958).  This presumption can, of course, be
 rebutted  (State v. Myers. 64 N.M. 186, 326 P.2d 1075, 1
 1958).

 The waters of the state of which fall under the super-
 vision of the State  Engineer include waters apportioned
 to users  under license and those water rights which
 have been adjudicated by the courts (N.M.S. §75-2-9).
 The State Engineer also has the authority to adopt
 regulations to implement and enforce any provision of
 the law (N.M.S. §75-2-8).

 The State Engineer may refuse to approve an application
 for surface water if approval would be contrary to the
 public interest (N.M.S. §75-5-5 and 75-5-6).  The
 court, in an early case, concluded that matters of pub-
 lic interest encompassed an evaluation of the facts
 and circumstances surrounding competing proposals for
 water  use to determine which proposal better serves
 the public interest  (Young and Norton v. Hinderlider,
 15 N.M. 666, 110 P.  1045, 1910).

 9.3.2  Judicial Bodies

 New Mexico does not  have special water courts.  Courts
 enter  into the adjudication of water rights.  Appeal
 from State Engineer's decisions is to the district
 court  for a trial de navo (N.M.S. §75-6-1 to 3).

 Districts--
 Districts are corporations with a public purpose.
 These districts differ from counties and like political
 units  in  that they function for profit and are set up
 for business, not governmental purposes.  Irrigation
 districts may be organized by filing a petition with
 the Board of County  Commissioners.  If there is in-
 sufficient water for all, then the Board of Directors
 may distribute it as they think best (N.M.S. §75-22-33).

 Conservancy districts are organized to prevent floods,
 regulate  stream channels, regulate stream flow, and
 protect lands from inundation.  Petitions must be
 filed with the Clerk of Court and signed by more
 than 1/3  of the owners of a proposed district.

 9.4  POLLUTION CONTROL

 New Mexico has passed a Water Quality Act (N.M.S.
 §75-39-1  to 75-39-12), imposing a permit system for
 the discharge of any contaminant, either directly or
 indirectly, into water (N.M.S. §75-39-4.1).  A Water
 Quality Control Commission has been established
 (N.M.S. §75-39-3), with the power to grant or deny
 permits for such discharges.  The grounds for refusal
 include failure to meet state or federal standards
 (N.M.S. §75-39-4.1)  regarding effluent regulation
 and stream standards (N.M.S. §75-39-4.1).

 Permits are issued after application and a hearing
 held following notice to the public (N.M.S. §75-39-
 4.1).  The permits are limited to a term of five
years and may have conditions imposed upon them.   Pro-
 visions included in  these conditions are requirements
 for the installation of effluent monitoring devices
 sampling  effluents at prescribed locations and inter-
vals.  This is to provide records of the nature and
amount of effluent and the performance of control
devices (N.M.S. §75-39-4.1).

The permit may be terminated for violation of its
conditions, for obtaining it by misrepresentation,
or failing to disclose relevant facts.   It may also
be revoked for violation of any applicable state  or
federal effluent regulation.   Violation  of any sec-
tion of the Water Quality Act constitutes a misde-
meanor punishable by one year in jail  or by a  fine
of not less than $300 nor more than  $10,000 per day.

-------
misdemeanor punishable by one year in jail  or by a
fine of not less than $300 nor more than $10,000
per day.

REFERENCES

Clark, Robert Emmet, New Mexico Water Resources Law.
University of N.M.  Printing Plant, 1964.

Clark, Robert Emmet, "Water Rights Problems in the Upper
Rio Grande Watershed and Adjoining Areas,"  11 Natural
Resources Journal.  48, 1971.

Dewsnup, Richard L. and Dal 1 in W. Jensen, eds., A_
Summary-Digest of State Water Laws, a report to the
National Water Commission, 1973.

Flint, F. Harlan, "Groundwater Law and Administration:
A New Mexico Viewpoint," presented at the Proceedings
of the Fourteenth Annual Rocky Mountain Mineral Law
Institute, Tucson,  Arizona, July 13, 1968.

Hutchins, Wells A., The Hew Mexico Law of Water Rights,
published in cooperation with the United States Depart-
ment of Agriculture, 1955.

	.  "Irrigation Survey, 1974," Irrigation Journal,
VoT7~24, No. 6, Nov./Dec., 1974.

Lansford, Robert R., et. al., An Analytical  Interdisci-
plinary Evaluation of the Utilization of the Water
Resources of the Rio Grande in New Mexico,  Hew Mexico
Water Resources Research Institute, 1973.

 	, Manual of Rules and Regulations—Governing the
Appropriation and Use of the Surface Waters of the
State of New Mexico, from the Office of the State
Engineer, Revised August, 1953.

Mechem, Edwin L. (Governor), "Groundwater and Ground-
water Law in New Mexico," Ground Water-Availabillty-
Quantity-Quality-Uses, Sixth Annual New Mexico Water
Conference, Nov. 1-2, 1961.

Moise, Irwin S., "Concept of Beneficial Use in Water
Law in New Mexico," Water and Water Law. Fourth
Annual New Mexico Water Conference, 1959.

Reynolds, S.E., "State Water Plan." Theme:   State Water
Plan, Proceedings of the Eighteenth Annual  New Mexico
Water Conference, 197$.

     . Rules and Regulations—Governing Drilling of
Wells and Appropriations and Use of Ground Water in New
Mexico, from the Office of the State Engineer, 1966.

Stucky, H.R., "Economics of Beneficial Uses of Water,"
Water in 50 Years of Statehood with a Look to the
Future, Seventh Annual New Mexico Water Conference,
1962.

Trelease, Frank J., "The Concept of Reasonable Bene-
ficial Use in the Law of Surface Streams," 12 Wyoming
Law Journal. 1, 1957.
                                                       194

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                                            APPENDIX A REPORT 10
                                                 UORT1I DAKOTA
10.1  HISTORICAL BACKGROUND
The State of North Dakota is seventeenth in size with
an area of 70,655 square miles.  It receives an aver-
age annual precipitation of 17 inches and withdraws
from ground and surface sources approximately 900 mil-
lion gallons of water per day for irrigation on the
74,000 acres of irrigated acreage (Geraghty, 1973).

North Dakota water law was distinguished by its recog-
nition of both riparian rights and appropriation
rights.  The common law and riparian rights doctrine
in North Dakota date back to its territorial days.
The Territorial Legislature adopted in 1866 the fol-
lowing statute which stood in force until 1963.

     The owner of land owns water standing there-
     on or flowing over or under its surface, but
     not forming a definite stream.  Water running
     in a definite stream formed by nature over or
     under the surface may be used by him as long
     as it remains there; but he may not prevent
     the natural flow of the stream or of the
     natural spring from which it commenses its
     definite course, nor pursue nor pollute the
     same (N.D.C. §47-01-13).

This provision seems to depict the doctrine of abso-
lute ownership of subterranean percolating waters and
diffused surface waters.  Waters flowing in a definite
stream, whether over or under the ground, was, how-
ever, subject to the doctrine of riparian rights under
a usufructuary use theory as opposed to an absolute
theory.  The above statute was repealed in 1963 by
North Dakota Session Laws, Ch. 419, Sec. 7 (1963).

.Another provision enacted in 1866 by the Territorial
Legislation stated that:

     Any person who may have or hold a title...
     to any mineral or agricultural lands within
     the limits of this territory, shall be en-
     titled to the usual enjoyment of the waters
     of the streams or creeks in said Territory
     for mining, milling, agricultural or domes-
     tic purposes:  Provided that the right to
     such use shall not interfere with any prior
     right or claim to such waters when the law
     has been complied with... (Laws of Territory
     of Dak., Ch. 142,§1, 1881J.1

This statute seemed to grant the right to any land-
owner to use waters of the state as long as he did
not interfere with prior rights.  Acquisition of
water rights was not limited to riparian or overlying
lands.

In Sturr v. Beck, the North Dakota Supreme Court up-
held the right of a riparian landowner to enjoin any
interference with water riparian to his property by
a nonriparian appropriator where the riparian owner's
chain of title and possession predated the nonriparian
appropriation.  The court, in this case, referred to
the water rights as "vested and accrued" (133 U.S.
541, at 552, 1896).
      Reinforced in 1889 by N.D. Sess. Laws, Ch. 173,
which first introduced the concept of filing for water
rights.
The doctrine of prior appropriation was  added  to  North
Dakota's water laws in 1881.   Then  in  1889,  North
Dakota included in its newly  adopted constitution,
Section 210, which stated that:   "All  flowing  streams
and natural watercourses shall  forever remain  the pro-
perty of the state for mining,  irrigating  and  manufac-
turing purposes" (fJ.D.C. Art. 17,   210).

The Supreme Court of North Dakota dealt  with the  ef-
fect of Section 210 upon riparian rights doctrine in
Biqelow v. Draper (6 N.D. 152,  69 N.U. 570,  1896).
The Court felt that Section 210 had not  abrogated
those rights and observed that  the  right to  a  reason-
able use of the stream by the riparian owner was  just
as much his property as the land itself  (Ibid,  at 573).
By virtue  of the common  law doctrines  in  force in
Dakota Territory at the time of statehood, riparian
owners were vested with specific property  rights  in
the beds and in the water itself.   These rights were
protected by the 14th Amendment of  the United  States
Constitution and could not, therefore, be  impaired
except by due process of law.  The  court stated that
Section 210 would itself be unconstitutional if it
attempted to destroy these vested property rights.

As set down by the Supreme Court of ilorth  Dakota, the
uses to which a riparian owner could put the water
included manufacturing, agricultural and similar
purposes  (HcDgnqugh v. Russell-Miller  Milling  Co.,
38 N.D. 465Y165 M.W. 504, 1917).   The right to have
a stream flow "in its natural quantity and purity"  is
subject to the right of reasonable  use by  each ripar-
ian owner and reasonableness is a question of  fact
for the Court to decide {Ibid-, at  472).

The above case concerned a riparian owner  involved  in
the ice business who had been cutting  ice  from the
river and selling it.  The defendant,  an upper ripar-
ian owner, had a flour mill  on the river from which
sufficient wastes from washing wheat allegedly were
deposited in the river to render the water unusable
for ice purposes, thus destroying the  plaintiff's
business.  The Court stated  that,  "The right to the
use of the water in its natural flow  is  not a mere
easement or appurtenance, but is a  natural right  in-
separably annexed to the soil itself,  which arises
immediately with every new division or severance of
ownership"  (Ibid, at 472).

The Court went on to hold that a riparian  owner has
the right to make a reasonable use of a  mill or
factory and may even cast sewage or waste materials
therein,  if he does not thereby cause material injury
to public or private rights.

In 1905,  the North Dakota Legislative Assembly passed
a  statute  reinforcing the appropriation  doctrine first
introduced in  1881 (N.D. Session Laws, Ch. 34, 1905).
This was  done ostensibly for the purpose of aiding
irrigation.  The essence of  the appropriation doctrine
was that  any person needing  water for beneficial  use
may divert water for such use and would thereby ac-
quire a vested right to continue such use regardless
of whether or not the appropriator had riparian rights
in the water.  Thus, priority in time plus a benefi-
cial use,  rather than location of land, gave the
better right.

The 1905  statute declared that "all water within  the
limits of the state from all sources of water supply
belong to the public and, except as to navigable
                                                      195

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 waters  are subject  to  appropriation  for beneficial use
 (N.O. Session  Laws,  Ch.  34,  1905).   Amendments  in 1955
 and in  1957 enlarged the scope of the 1905 act.  The
 1957 amendment reads as  follows:

     All waters within the limits of the state
     from  the  following  sources of water supply,
     namely:   1) Waters  on the surface of each
     excluding diffused  surface waters but in-
     cluding surface waters  whether  flowing in
     well  defined channels or flowing through
     lakes, ponds, or  marshes which  constitute
     integral  parts  of a stream system, or waters
     in lakes;  and 2)  Waters under the surface of
     the earth whether such  waters flow in defined
     subterranean channels or are diffused perco-
     lating underground  waters; and  3) All resid-
     ual waters resulting from beneficial  use, and
     all waters artificially drained; and 4) All
     waters, excluding privately owned waters, in
     areas  determined  by the state engineer to
     be noncontributing  drainage area is hereby
     defined to be any area  which does not con-
     tribute natural flowing surface waters to a
     natural stream  or watercourse at an average
     frequency oftener than  once in 3 years over
     the latest thirty-year  period; belong to the
     public and are  subject  to appropriation for
     beneficial use  and  the  right to the use of
     these waters for  such use shall be acquired
     pursuant  to the provisions of Chapter 61-04
     of the Revised  Code of  North Dakota of 1943
     and acts amendatory thereof (N.D.C.  §61-01-01).

From 1905 and until  the repeal  of the statute which
had enbodied the riparian rights  doctrine,  North
Dakota recognized both the riparian  rights  and appro-
priation doctrine.   North Dakota  made a  sweeping change
in its water law system in 1963,  repealing  sections of
the law providing for the future  initiation  of riparian
rights and instituting the doctrine  of prior appropria-
tion as the sole means of acquiring  a right  to use
water (H.D. Sess Law 1963, Ch.  417).   To emphasize
the awareness of potential water  problems, the North
Dakota  legislature enacted Section 61-01-26  in 1965,
setting forth the following  state water  resources
policy:

     In view of legislative  findings  and determin-
     ation  of the ever-increasing demand and
     anticipated future need  for  water in North
     Dakota for every beneficial  purpose and  use,
     it  is  hereby declared to be  the  water re-
     sources policy  of  the state  that:
     1.   The public  health, safety and general
        welfare,  including without  limitation
         enhancement  of opportunities for social
         and economic growth  and  expansion, of
         all of the  people of the state, depend
         in large measure upon the optimum pro-
        tection, management  and wise utilization
        of all of the  water  and  related land
        resources of the state;
     2.  Well-being of  all of the people of the
        state  shall  be the overriding determinant
        in considering the best use, or combina-
        tion of uses,  of water and related land
        resources;
     3.  Storage of the maximum water supplies
        shall  be provided wherever and whenever
        deemed feasible  and  practicable;
     4.  Accruing benefits from these resources
        can best be  achieved for the people of
        the state through the development, execu-
        tion and periodic updating of comprehensive,
          coordinated and well-balanced  short-  and
          long-term plans and programs  for the
          conservation and development  of such
          resources by the departments  and
          agencies of the state having  responsi-
          bilities therefore;
      5.   Adequate implementation  of  such plans
          and programs shall  be provided  by the
          state through cost-sharing  and  coopera-
          tive participation  with  the appropriate
          federal  and state departments and
          agencies and political subdivisions
          within the limitation of budgetary
          requirements and administrative capa-
          bilities;
      6.   Required assurances of state cooperation
          and for meeting non-federal repayment
          obligations of the  state in connection
          with federal-assisted state projects
          shall  be provided by the appropriate
          state department or agency;
      7.   Required assurances of local cooperation
          and for meeting non-federal repayment
          obligations of local  interests  in  con-
          nection  with federal-assisted local pro-
          jects  may,  at the request of political
          subdivisions or other local interests,
          be  provided by the  appropriate  state
          department  or agency, provided  if for any
          reason it is deemed necessary by  any
          department  or agency of  the state  to
          expend state funds  in order to  fulfill
          any obligation of a political subdivision
          or  other local  interests  in connection
          with the construction, operation or
          maintenance of any  such  project, the state
          shall  have  and may  enforce  a claim against
          the political  subdivision or other local
          interests for such  expenditures.
      The  provisions  of this  chapter  shall not be
      construed  to  in  any manner limit, impair or
      abrogate the rights,  powers, duties, or func-
      tions of any  department or agency of the state
      having  jurisdiction or  responsibilities in the
      field of water  and  related land resources con-
      servation, development  or  utilization  {N.D.
      Sess. Law  1965,  Ch.  455,§§1 and 2).

 In 1968,  the  Supreme  Court of  North  Dakota, in Baeth v.
 Hoisveen  (157 H.W. 2d728, N.D. 1968), accepted the
 concept that although  a  riparian owner had rights  in
 the water, these  rights  were vested only if the ripar-
 ian owner made  actual  use of the water for a benefici-
 al purpose.  Until the time of such use,  the appropri-
 ator may acquire a better right.  The defendant felt
 that there was  no  unconstitutional deprivation of
 property despite the  language of Bigelow v. Draper.
 The court held  that a  landowner had no vested right
 to unused ground water and that the prior appropria-
 tions provision of the 1963 law were not  a deprivation
 of property without due  process of law.

 In Volkmann v. City of Crosby (120 N.W.  2dl8,  N.D.,
 1963), the North Dakota Supreme Court stated that the
 rights of the landowner protected  by 1963 statute  re-
 lating to subterranean waters not  forming a definite
 stream (N.D.C. §47-01-13, 1960, repealed  by N.D. Sess.
 Laws, Ch.  419, §7, 1963), are no less than those
 rights which  he would have in definite  streams  flowing
on the surface.
                                                     196

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10.2  SUBSTANTIVE LAW

10.2.1  Property Right in Water

The North Dakota Century Code Section 61-01-01 states
that all waters in the state belong to the public and
are subject to appropriation for beneficial use
(N.D.C. §61-01-01).  The two exceptions to this are
diffused surface waters in contributing drainage areas
and privately owned waters.  Privately owned waters
are defined as those waters which have been physically
separated from their natural condition so as to be-
come personal property; i.e., water held in private
tanks, basins, or receptacles in which there is no
flow or drainage in the natural manner.2  Thus, pri-
vate rights of ownership do not attach to the corpus
of the water if it remains in the stream in its natural
state.

In North Dakota, both riparian and appropriative rights
are the historical basis of water use, but all new
uses are appropriative.  The appropriative right is
an usufructuary right and its basis is beneficial use
(N.D.C. §61-01-02).  This usufructuary characteristic
of the water right grants the owner a right to "use"
the water which is the nature of the property right,
and not the right to "own" the water (Sherred v.
City of Baker, 63 Ore. 28, 125 p. 826, 191H).

For ownership purposes, the water right is a real
property right, which has the condition that its
existence depends upon use according to the terms of
the right.

     An appropriation of water flowing on the
     public domain consists in the capture,
     impounding, or diversion of it from its
     natural course or channel and its actual
     application to some beneficial use
     (Black's Law Dictionary, 4th edition).

The appropriator is entitled to a continuing right to
the use of such waters that have been appropriated,
but not beyond that reasonably required and actually
used (Arizona v. California, 56 S. Ct. 848, 293 U.S.
558).  However, once the water has been used, "all"
residual waters resulting from beneficial use and all
waters artificially drained...belong to the public and
are subject to appropriations..." (N.D.C. §61-01-01
(3))-

Water rights for irrigation purposes are appurtenant
to the land applied for (N.D.C. §61-01-02).  Section
61-04-15 requires approval by the state engineer prior
to any transfer of other lands,3 and the fact that
the water rights pass with the title to the land un-
less severed previously.

10.2.2  Acquisition of Right

General —
An application for a permit for a beneficial use must
be filed with the State Engineer and if approved, it
will result in a conditional and/or perfected water
permit (N.D.C. §61-04, 1960, as amended Supp. 1975).
The applicant for a permit must give notice by
     2Larson, A Local Review:  The Development of
Water Rights and Suggested Improvements in the Water
Law of North Dakota, 38 N.D.L. Rev. 243, 263 (1962).

     3N.D.C. §61-14-04 specifically declaring water
appurtenant to land for irrigation purposes was re-
pealed in 1963 and §61-01-02 with a like statement
was enacted.
certified mail  to all  owners of real  estate within a
one-mile radius of the applicant's  proposed appropria-
tion.   The notice must also designate the  time the
application will  be heard by the commission (N.D.C.
561-04-04 and 61-04-05).

A permit is not required  by the landowner  or  his
lessee for domestic and livestock uses (N.D.C. §61-01-
01.1).  If water is to be used for  domestic livestock
or fish, wildlife and other recreational purposes, it
is not a prerequisite to  obtain a permit to construct
works, but once constructed, the State Engineer must
be notified of the location and acre-feet  capacity of
such works.  However,  if  the impoundment is for more
than 12% acre-feet capacity, a permit is required
prior to construction (N.D.C. §61-04-02).

Permits must be denied if, in the State Engineer's
opinion, no unappropriated water is available or if
approval of the permit would be contrary to the public
interest (N.D.C.  §61-04-07).  Where the application
has been rejected by the  engineer,  the applicant may
seek immediate judicial review (N.D.C. §61-04-07).  If
unappropriated water is available,  the State  Engineer
shall  endorse his approval on the application and
issue a conditional water permit (N.D.C. §61-04-06).
This permit authorizes the appropriation of water and
is to specify the time in which the water  is  to be
applied to beneficial  use.  Applications are  generally
reviewed by the State Water Conservation Commission
before approval by the State Engineer.

The State Engineer will inspect the project upon com-
pletion of the construction and application of the
water to a beneficial  use.  If the  terms of the condi-
tional permit are met, the applicant will  be  issued a
perfected permit to appropriate the specific  quantity
which-is being beneficially used (N.D.C. §§61-04-09 to
61-04-14).

It is a misdemeanor to begin or carry on any  construc-
tion of works for storing or carrying water until after
the issuance of a permit to appropriate such  waters,
except in the case of construction  carried on under
the authority of the United States  (N.D.C. §61-14-08).

Ground Water--
Public waters include waters under  the surface of the
earth whether such waters flow in defined  subterran-
ean channels or are diffused percolating waters  (H.D.
C. 561-01-01).  There is no delineation between under-
ground streams and percolating waters, and both are
subject to appropriation for a beneficial  use under
the same procedures which apply to  surface waters.

Artesian wells must be controlled by a valve  and the
flow regulated to provide for a quantity of water
which can be used beneficially (N.D.C. §61-20-01).

Prescriptive Water Rights—
In 1957, the North Dakota Legislature enacted a bill
entitled:  "Prescriptive Water Rights" (N.D.C. S61-
04-22).  As amended, the Act now reads:

     Any person, firm, corporation, or municipality
     which used or attempted to appropriate water
     from any watercourse, a stream body of water or
     from an underground source for mining,  irriga-
     ting, manufacturing or other beneficial  use
     over a period of twenty years  prior to July 1,
     1963, shall be deemed to have  acquired a right
     to the use of such water without having  filed
     or prosecuted an application to acquire  a right
     to the beneficial use of such  waters  if  such
     user shall, within two years from July 1, 1963,
                                                      197

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     file with the State Engineer an application
     for a water permit in the form required  by the
     the rules and regulations of the State Engineer,
     and substantiated by such affidavits  and
     other supporting information as the State Engi-
     neer may require.   If the State Engineer finds
     that the application and supporting documents
     substantiate the claim, he shall approve such
     application, which shall thereupon become a
     perfected water permit with a priority date
     relating back to the date when water  in  the
     quantity stated in the application was first
     appropriated.  In the event the prescriptive
     use shall fail to file with the State Engineer
     an application for a water permit within two
     years from July 1, 1963, such prescriptive water
     right shall be declared abandoned and for-
     feited.  The decision of the State Engineer in
     rejecting an application made under the  provi-
     sions of this section may be appealed to the
     district court in the manner prescribed  by
     section 61-04-07.  Within sixty days  after
     July 1, 1963, the State Engineer shall cause
     to be published in all official county news-
     papers within the state notice of the deadline
     of filing for a water permit by prescriptive
     users.  Any such prescriptive water permit
     acquired under this section shall be  subject
     to forfeiture for nonuse as prescribed by
     sections 61-04-23 through 61-04-25.

To summarize, North Dakota recognizes prescriptive
rights to appropriate water from any source where the
water was used for a beneficial purpose for a period
of 20 years prior to July 1, 1963.  If the permit is
granted the priority relates  back to the  date the
water was first used.  However, prescriptive  right
which has been validated continues to be subject to
forfeiture for nonuse.

Preferences—
North Dakota uses the term "priority" to refer both
to the exercise of water rights, regardless of type
of use, according to the date of the water right, and
to the ranking of types of uses in which the  senior
ranking uses have priority over junior ranking uses.
North Dakota's ranking of water rights is  only applic-
able to competing applications.  The order of "prior-
ities" in all cases where the use of water for differ-
ent purposes conflicts is domestic use; livestock use;
irrigation and industry; fish wildlife and other out-
door recreation  (N.D.C. §61-01-01.1).

10.2.3  Adjudicating Hater Rights

The resolution of conflicting claims to  the use of
water is accomplished through statutory  adjudication
proceedings.  The system adopted in Worth  Dakota  is
commonly called  the Bien Code system.**  Initiation  of
such proceedings is accomplished by the  creation of a
hydrographic survey of the water source  and  uses by
the State Engineer.  This information is then turned
over to the attorney general who initiates suit on
behalf of the state.  Action may also be  initiated  by
private parties  but the attorney general  has  the right
to intervene on behalf of the state  (H.D.C.  661-03-16).
The decree must  describe each right as to  priority,
quantity, purpose, place, and nature of  use  (N.D.C.
§61-03-19).  All claimants to a stream which  is  being
adjudicated must be joined and costs of the  litigation
are charged to the users (N.D.C. §61-03-13).
     ••For discussion, see:  Clark, R.E., ed., Water
and Water Rights, Vol. 1, Allen  Smith & Co., Indian-
apolis, Inc., 1967, pp. 124-134.
10.2.4  Conditions of Use

Beneficial Use--
Tlie Code recognizes beneficial  use as  the  basis,  the
measure and the limit of the right to  use  water  (N.
D.C. §61-01-02), and priority in time  confers  upon the
permit holder the right to cause those junior  in  time
to cease diversions to the extent that their use  pre-
vents the senior user from exercising  his  right.  The
North Dakota statutes do not specifically  define  ben-
eficial use, but rather designate types of uses for
which water can be appropriated.  These types  of  uses
are domestic, livestock, irrigation,  industry  and
fish, wildlife and other outdoor recreational  uses
(N.D.C. 561-01-01.1).

In determining how much water shall be allocated  for
irrigation purposes, H.D.C. Sec. 61-14-03  sets out
"duty of water  criteria to be applied by  the  State
Engineer in issuing permits and courts in  adjudicating
rights.  This "duty" states that:

     In the issuance of a permit to appropriate
     water for irrigation or in the adjudication
     of the rights to the use of water for such
     purpose, the amount allowed shall not be  in
     excess of the rate of one cubic foot  of
     water per second for each eighty acres,
     for a specified time in each year, or the
     equivalent thereof, delivered on the  land.
     Provided, that the State Engineer may allow
     a higher rate of diversion where the  method
     of irrigation stipulated in the permit or
     the type of soil to which the water is to
     be applied so requires, but in such event,
     the total amount allowed shall not be in
     excess of two acre-feet per acre delivered
     to the land for any one irrigation season,
     and in no case more than can be used  bene-
     ficially, excpet that during periods  of
     sufficient water supply the State Engineer,
     with the approval of the State Water  Commis-
     sion and in accordance with the method of
     irrigation being used, the type of soil
     to which the water is to be applied,  and
     other criteria established by the State
     Engineer, three acre-feet per acre, per
     irrigation season, for a specified period
     of time which in no event shall be of
     greater duration than the period of
     sufficient water supply (H.D.C. §61-14-03).

Waste—
The waste of water can be considered the opposite of
using  the water beneficially.   It  is the return flows
resulting from excessive or overappli cation of water
and being discharged from surface ditches  or ravines
on subsurface flows.  The Uorth Dakota legislature,
very early  in their  history, recognized the need to
prevent misuse of the state's water resources.  In
1905,  Section 61-14-08 was enacted, which provides:

     The  unauthorized use of water to which
     another person  is entitled, or the willful
     waste of water  to the detriment of another,
     shall  be a misdemeanor	

Irrigators  are able  to  recapture return flows while
still  within their control  (H.D.C. 561-01-05).  Public
policy thus dictates that an upper irrigator should
not be forced to  continue his waste just to provide
a downstream user with a  source for an appropriation.
When he can  improve  his  use, downstream users do not
have a valid claim.
                                                      198

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However, improvement of irrigation practices could in
some situations result in decreased return flows which
could lower the stream to *he injury of downstream
appropriators.   The use o:  salvaged waters, reuse, or
even the application of an  entire appropriation could
have an adverse effect, not only on downstream users
but on water quality itself.

10.2.5  Manner in Which Water Rights May Be
        Adversely Affected
Forfeiture--
The early provision on forfeiture provided for the
loss of water rights after three years of nonuse:

     When the party entitled to the use of water
     fails for a period of three years to use
     beneficially, for the purpose for which it
     was appropriated or adjudicated, all or any
     part of the water claimed by him, for which
     a right of use has vested, such unused water
     shall revert to the public and shall be
     regarded as unappropriated public water
     (N.D.C. §61-14-02).

This statute was repealed in 1963 and replaced by
Section 61-04-22 to 26:

     All appropriations of water must be for a
     beneficial or useful purpose, and when the
     appropriator or his successor in interest
     ceases to use it for such purpose for three
     successive years, unless such failure or
     cessation of use shall have been due to
     the unavailability of water, a justifiable
     inability to complete the works, or other
     good and sufficient cause, the State Engin-
     neer may declare such water permit or right
     forfeited, provided, however, that any
     such water permit or right held by a state
     agency, department, board, commission, or
     institution may be declared forfeited only
     by the North Dakota legislative assembly.
     The State Engineer shall, as often as
     necessary, examine the condition of all
     works constructed or partially constructed
     within the state and compile information
     concerning the condition of every water
     permit or right and all ditches and other
     works constructed or partially constructed
     thereunder (N.D.C. §61-04-23).

North Dakota Code, Sections 61-04-24 and 61-04-25,
set down the procedure for notice, hearings and appeal
for forfeiture actions.  If the State Engineer de-
clares a water right forfeited, he shall file a copy
of the order with the registrar of deeds in the county
or counties where the land to which the affected
water right is appurtenant is located (N.D.C. §61-04-
26).

North Dakota's three-year forfeiture provisions have
an extensive flexibility for contesting loss by an
affected party and thus may not be too effective in
operation.  It is interesting to compare the absolute
forfeiture provision that was repealed in 1963 with
the sections enacted in 1963.  This appears to be a
step backward to striving for maximum use of the
state's water resources.

Adverse Possession--
Prescriptive rights can be acquired if the water was
used openly, notoriously and continuously for a bene-
ficial purpose for a period of 20 years before July 1,
1963.  The user must have filed for a permit by July 1,
1965 or the right was regarded as abandoned forfeited.

                                                      199
Condemnation--
In a context relating  to  real  property, condemnation
is a process by which  the property of a private owner
is taken for public use,  without  his consent, but upon
the award and payment  of  just  compensation  (Black's
Law Dictionary).   Under North  Dakota law, the U.S.,
any person, corporation or association can  exercise
eminent domain  (this is the right, condemnation is
the process) to acquire any property or rights for a
public use when it is  determined  necessary  for apply-
ing water to beneficial use (N.D.C. §61-01-04).

Water rights can be condemned  by  the State  Water Con-
servation Commission (N.D.C. §61-02-22, I960, 61-02-
23 Supp., 1975; see also  §61-01-04 and 61-02-40).
The Commission  is allowed to sell, lease, or distrib-
ute the water developed by its projects.  It can also
establish rules and regulations governing the sale of
water and regulate, supervise  and control water sup-
plies to prevent the pollution of watercourses within
the state.  The Commission has full control over the
unappropriated waters  of  the state (N.D.C.  §61-02- 30).
It is not required to  initiate a  right to use water by
filing an application  but must file a declaration in
writing with the State Engineer,  describing the water
claimed.

Enforcement of Beneficial Use  or  Waste Concepts--
An appropriator is limited to  the quantity  of water
specified in his permit subject to a  beneficial use.
If the appropriator fails to apply the specified quant-
ity in his permit to a beneficial use, the  unused
water is subject to the provisions of  the forfeiture
statute  (N.D.C. §61-04, 1960,  as  amended  Supp.  1973).

While waste water is not statutorily  defined,  it may
be referred to as that water which  is  now lost  under
current  systems and practices  but which  might  be
saved.5  It is a misdemeanor to willfully waste water
to the detriment of another.

10.2.6   Legal  Incentives and Disincentives  for  More
         Efficient Water Use Practices

Irrigation Return Flow—
Irrigation return flows occur from  deep  percolation,
seepage  from conveyance systems,  and  tail water run-
off.  A  downstream senior appropriator is entitled.
to have  the stream flow in a sufficient  quantity  to
satisfy  his appropriation.  An upstream  junior  appro-
priator  cannot therefore use water  if that  use  would
deprive  the downstream senior of  his  appropriated
quantity.  There have  been no  cases  in  North  Dakota
dealing  with the appropriation of waste  waters.
There is, however, a statute which  deals  with  the
appropriation of seepage waters and  another providing
for the  reclaiming or  reuse of water.

In the cases of seepage water from  any constructed
works, any party desiring to use  such  waters  shall
make application to the State Engineer and  shall  pay
to the owner of the constructed works  a  reasonable
charge for the storage or carriage  of the waters  in
such works if the appearance of such  seepage  water
can be traced  beyond a reasonable doubt  to  the  stor-
age or carriage of water in such  works.   The  State
Engineer cannot issue  a permit to appropriate  such
seepage  waters until an agreement for the payment of
appropriate charges shall have been  entered into  by
the affected parties (N.D.C. 161-14-13).

Reuse is encouraged in North Dakota.   Water diverted
into artificial or natural watercourses  by  any  party
     5R.L. Dewsnup, Legal Aspects of Water Salvage
 (report to the National Water Commission, 1971).

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er.titled to the use of such water may be  reclaimed  and
divertea by the appropriate party subject to  existing
rights (due allowances being made for losses)  as  de-
termined by the State Engineer (N.D.C.  §61-01-05).

Salvaged and Developed Waters--
There are no cases in North Dakota dealing with the
right to use salvaged waters.  However, the reuse
statute cited above and the lenient forfeiture pro-
visions imply   the use of salvaged and developed
waters is encouraged.

Provisions for Transfer of water Rights and
Diversions.--
In 1940,  the Supreme Court of North Dakota held that
riparian  rights may be severed from the land  by con-
tractual  agreement, at least to the extent of possible
future claims against the other contracting party and
that such a contract is binding upon subsequent owners
(Johnson  v. Armour and Co., 69 N.D. 769,  291  N.W. 113:
1940T

The North Dakota Century Code has several provisions
dealing with the transfer of water rights. Specific-
ally pertaining to irrigation water rights, the Code
states in Section 61-14-05:

     Any appropriator of water may use the same
     for a purpose other than that for which  it
     was appropriated, or may change the place
     diversion, storage, or use, in the manner,
     and under the conditions prescribed  in
     §61-14-04.6

The process for transferring water rights is  set out
in N.D.C. Section 61-04-15.  The section  specified
three types of water right transfer situations.  The
first allows for an assignment of a conditional or
perfected irrigation water right upon approval of the
State Engineer.  The second allows the transfer of  any
conditional or perfected water right to nther parcels
of land owned by the water right holder upon  approve.!
of the State Engineer.  And the third permits the
temporary assignment or transfer for any  use  of a
water right held by anj state agency, department,
board, commission, or institution for a specified
term upon approval of the State Engineer.  If the
State Engineer determines that existing rights will
not be harmed by the recjuested transfer and no party
raises sustainable objections within sixty days in
the appropriate district court, he shall  approve the
transfer or assignment without loss of priority date
of the water right.

Transfer of title to land carries with it all  rights
to the use of water appurtenant to that  land  for irri-
gation purposes, unless the rights have already been
se"ered from the land.

10.2.7  Mater Disposal and Drainage

In 1967, the North Dakota Supreme Court  in Jones v.
Boeing Co. stated:

     We adopt the reasonable use rule as  expressed
      in the New Jerse>- case of Armstrong  v. Francis
     Corp. (20 N.J. 321, 120 A.2d 4, 1956)	The
     casting of surface waters from one's land
     upon the land of another under circumstances
     where the resulting damarj was foreseen  or
     •'"oreseeable, is tortious and liability re-
     sults if the interference with the flow  of
     6Sectinn 51-14-04 referred to in 61-14-05 was
repealed by S.L.  1963, Ch. 417, 26.
     surface water is found to be unreasonable
     under 'reasonable' use rules.   The issue of
     reasonableness or unreasonableness becomes
     a question of fact to be determined in each
     case upon a consideration of all  of the
     relevant circumstances (153 N.W.  2d 897,
     900 to 904, N.D., 1967).

The circumstances may include such factors as the
amount of harm caused, the foreseeability of the harm
which results, the purpose or motive with which the
possessor acted, and all  other relevant matters.   In
1971, the North Dakota Supreme Court reaffirmed the
reasonable use rule (Jacobsen v. Pederson, 190 N.W.
2d 1, N.D., 1971).  Generally, a landowner must not
so use his land as to unreasonably interfere with or
injure another.  This is  the basic sic utere (nuis-
ance principle).

10.3  ORGANIZATIONAL AND  ADMINISTRATIVE ASPECTS

10.3.1  State Hater Agencies

In 1905, North Dakota set up an elaborate administra-
tive scheme for allocation of water rights, distribu-
tion of water under the rights and administration of
the water laws (H.D. Laws of 1905,  Ch. 34, §37 to
46).  The administration  was handled at the statewide
level by a Board of Water Commissioners, with the
State Engineer as president.  Beneath  this Board were
various levels of administration in a  declining hier-
archy, beginning with water divisions, then water
districts, water commissioners, and watermasters.
The system was too extensive for the state's needs,
and was deleted from the  statutes in 1943 when the
state published its Revised Code.

Presently, there are two  entities at the state level
responsible for water quantity law matters.  They are
the Office of the State Engineer and the Water Conser-
vation Commission.  The former office  was retained
from the 1905 provisions  of the law (N.D.C. Ch. 61-
03).  The State Engineer  has the primary duties of
allocating water, and adjudicating water rights sub-
ject to approval of the Commission (N.D.C. §61-02-03).
The substantive procedures for appropriating water
rights from the State Engineer are set out in Chapter
61-04, and he has the responsibility for promulgating
necessary rules and regulations for carrying out this
and other duties provided in the statutes (N.D.C.
§61-03-13).  His rules and regulations are, however,
subject to the scrutiny by the Commission, and may
require alteration at their direction  (N.D.C. §61-03-
14).  From the agricultural water use  viewpoint, the
State Engineer is important as his office is respons-
ible for allocating the water under permit, including
a determination of the amount of water needed accord-
ing to soil type and water availabilities (N.D.C.
§61-14-03), and for approving transfers of water
rights (N.D.C. §61-04-15).  The criteria he applied
in these matters may well be more critical to creat-
ing an incentive or impediment to efficient water use
than the statutes themselves.

The second office, the Water Conservation Commission,
is a high level policy body also with  extensive func-
tional duties in water allocation, and distribution
and adjudication of water rights (N.D.C., Ch. 61-02).
The Commission is charged with the supervision and
control of waters (public or private,  navigable or
nonnavigable, surface or subsurface),  th
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 oublic  corporation with the  power to contract in its
 own  name  as  well  as  hold  and dispose of  property (N.
 D.C.  §61-02-09  and 61-02-14, Supp.  1973).   For irri-
 gation  projects undertaken by the Commission for
 irrigators,  the Commission can even prepare the land
 for  irrigation  (N.D.C. §61-02-19).  The  Commission has
 full  control over the unappropriated waters of the
 state (N.D.C. §61-02-29)  and can acquire water rights
 for  the state in  such waters (N.D.C. §61-02-30).

 The  Commission  is the most essential organization in
 the  state for insuring that  the state waters are be-
 ing  fully utilized under  appropriate methods and
 without resulting harmful effects.  It has the power
 to plan,  construct and operate public or private
 projects  to  control  the low  flow and flood flow of
 streams,  to  conserve and  develop unappropriated
 waters  within a watershed, and even divert waters to
 other basins, to  improve  stream channels for more
 efficient water conveyance,  to provide sufficient flow
 for  stream pollution abatement and to promote or pro-
 vide  drainage to  agricultural lands injured from uti-
 lization  of  irrigation water (N.D.C. §61-02-14).7

 An economic  (market) system  of selling water and water
 rights  is acceptably implied in the statutes, for the
 Commission also has  power to make rules  and regulations
 for  "sale of waters  and water rights to  individuals,
 corporations, municipalities, and other  political sub-
 divisions of the  state and for delivery  of water to
 users"  (N.D.C.  §61-02-14(2a)).

 10.3.2  Judicial Bodies

 North Dakota does not have special water courts.

 10.3.3  Hater Users  and Their Organizational Structure

 Individuals--
 This  term denotes a  single or natural person as dis-
 tinguished from a group or class, partnership, corp-
 oration or association (Black's Law Dictionary, 4th
 Edition).   The  purpose in providing for  appropriation
 of waters is to subject waters of the state to acqui-
 sition of rights of  diversion and use by the public.
 The individual water right holder thus has a real
 property  right which allows the use of water according
 to the terms of the  permit.  The individual, however,
 has a corresponding  duty not to commit waste nor to
 cause injury to others from his use of the water.

 Private corporations may be created to establish irri-
 gation systems for the distribution or sale of water
 to its members  (N.D.C.,  Ch. 61-13).   The by-laws may
make provisions which require that the share of stock
 can only  be transferred  with the sale or transfer of
the land  {N.D.C. §61-13-03).   These private corpora-
tions serve as either mutual  or commercial  irrigation
companies  and have the same rights and duties  as a
private individual for the use of the state's  water.

Delivery—
 In order to obtain an appropriative right, there must
be an actual  diversion or taking of water from a  chan-
nel.   An appropriation of water flowing on  the public
domain consists  in the capture,  impounding, or diver-
sion  of it from its  natural course or channel  and its
actual application to some beneficial  use (Black's
Law Dictionary,  4th Edition).  All  waters in the
state, except diffused waters,  belong to the public
     7This is only a partial  listing of the powers
and duties; refer to Ch.  61-02 for a complete de-
scription of the Commission's role in water control
and management.
 and  are  subject to appropriation for beneficial use
 (N.D.C.  §61-01-01).

 The  scope  of  the appropriative right is limited by the
 amount specifically appropriated and by the amount
 which is being or can be  beneficially used (N.D.C.
 §61-01-02).   An application for a permit must be filed
 with the State Engineer,  and if approved, it will re-
 sult in  a  conditional and perfected water permit
 (N.D.C.  §61-04, 1960, as  amended, Supp. 1975).

 The  requirement that there must be an actual diversion
 is related to the necessity of perfecting a property
 right which will be given protection under the law
 and  to obtain an exact measurement of the property to
 be protected.  To preserve one's "property" rights in
 the  water, an appropriator must not discontinue his
 use  for three consecutive years (N.D.C. §61-04-23).

 Use—
 Beneficial use is the basis, the measure and the limit
 of the right  to use water.  The above concept could be
 a valuable tool if strict enforcement should become
 necessary to  show exactly what is being posited.  For
 example, assume that an appropriator makes a decision
 to grow a crop which will hot require as much water as
 the  appropriator has available to him.   If the appro-
 priator fails to use all of his appropriation he
 could lose the water.  Good water management as wall
 as the beneficial use concept dictate that the appro-
 priator apply only that water which the crop requires;
 but  the "use  it or lose it" philosophy confronts the
 appropriator  with the possible unused portion.

 Removal —
 Water turned  into any natural or artificial  water-
 course by any party entitled to the use of such water
 may  be ret!aimed below and diverted therefrom by such
 party, subject to existing rights, due allowance for
 losses being  made, as determined by the State
 Engineer (N.D.C. §61-01-05).

 Districts—
 All  persons (corporations, voluntary organizations
 and  associations), when concerned with any agreement,
 contract, sale, or purchase, or the1 construction of
 any  works which involve the use and disposition of
 any  water or  water rights under the jurisdiction of
 the  State Water Conservation Commission, shall pre-
 sent to the Commission all proposals with respect to
 the  use or disposition of any such waters before
 making any agreement, contract, purchase, sale, or
 lease in respect thereof (N.D.C.  §61-02-27).

 Irrigation districts are corporations with a public
 purpose who function for profit but are organized
 strictly for business and economical purposes; they
 are not organized for a political  or governmental
 purpose.

 Section 61-07-16 obligates an irrigation district to
 provide for  proper drainage of any and all  lands em-
 braced within its limits.   Section 61-07-32  states
 that any irrigation district within this state is
 liable in damages for negligence  in delivery or
failing to deliver water to  the users from its canal.

There are 17 organized irrigation  districts  in North
 Dakota of which several  have been  organized  to obtain
a water supply through the development  of the Garrison
Diversion Unit.   The other ten  have been established
to obtain a water supply through  the Lower Yellowstone
project located in Montana and  North Dakota.   This
project was constructed by the  Bureau of Reclamation
 in 1909.
                                                     201

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The seven irrigation districts located  in  the  Garrison
Diversion Unit area encompass some 320,000 acres of  land
and obtain their water supply through the  Garrison
Diversion Unit where it diverts water from the
Missouri River eastward into central  and eastern
North Dakota.   The type of organization used most in
connection with irrigation development  is  that of
irrigation districts as public corporations.   They
are legal entities and have the power to levy  special
assessments for irrigation costs.   Irrigation  districts
in the state, approved by the State Engineer when the
petition from the landowners of the irrigable  lands
to be served by the districts facilities,  provide a
practical and economically sound proposal. As poli-
tical subdivisions of the state, they have definite
geographical boundaries that are set forth in  chapter
62-05 of the North Dakota Code relative to the organi-
zation of irrigation districts.

The procedure followed in organizing a  district re-
quires that a petition for the proposed district be
filed with the State Engineer which shall  be  signed
by the landowners of the district who together shall
own a majority of the whole number of acres subject
to assessment for construction or other costs  of the
district (N.D.C. §61-05-07).

The jurisdiction of the State Engineer  in  accepting
the petition and instituting proceedings  for the
organization of the irrigation district based  on this
petition has been established in decisions of  the
North Dakota Supreme Court in the Fort  Clark Irrigation
District in Oliver and Mercer Counties  (78 N.D. 107,
48 N.W. 2d 741, 1951).  The State Engineer is  required
under Section 61-05-10 of the North Dakota Century
Code to examine the petition and other  data relative
to the proposed district, to fix a time and place for
a hearing on the petition, and to follow the procedure
thereafter required.

This procedure is set forth in Section  61-07-01; each
irrigation district:  1) shall be a body corporate;
2) shall possess all powers and duties  usual  to corp-
orations organized for public purposes  and those con-
fered on it by law; 3) may sue and be sued in  its
corporate name; 4) may contract and be  contracted
with; 5) may hold leave, own and possess  such  real or
personal property as shall come into its  possession
by contract, conveyanc^, purchase, gift, or otherwise;
and  6) exercise the right to eminent domain for the
purpose of acquiring right-of-way for ditches, canals,
sites for dams  and reservoirs, and for any purpose
necessary to establish and construct a  complete system
of irrigation works.

While the North Dakota Century Code makes  no clear-
distinction between a drainage district and a  drain-
age  project,  it is reasonable to conclude  that a
drainage district comprises the lands within a county
that are benefitted by a drainage project  (N.D.C.
§61-21-10,  61-25-65, and 61-21-56).

The  North  Dakota  statutes define a drain  as including
any  natural watercourses, open or to be opened and
improved,  for drainage purposes, and artificial drains
of all  kinds  "...including dikes and appurtenant works
..." (N.D.C.  §61-21-01(1), I960).  Projects for drain-
ing  slough  and other low lands may be established
under the police  power of the  state when  such draining
is "...conducive  to the public health,  convenience,  or
welfare"  (N.D.C.  §61-21-02, 61-21-10, 1960).

Within  each county, a board of three drain commission-
ers, appointed by the Board of County Conroissioners,
is authorized to  carry out drainage projects.   The
Board of Drain Commissioners may be appointed by a
majority vote of the Board of County Commissioners
either on the Commissioners' own motion or in re-
sponse to the petition of an interested person.
Board members are appointed to staggered three-year
terms (N.D.C. §61-21-03).

North Dakota statutes provide that a water management
district board of commissioners has all the authority
of a drain board (N.D.C. $61-16-11(11).  However,
there are few drain boards remaining in the state.

10.4  POLLUTION CONTROL

North Dakota's Water Pollution Control  Board was
established in 1967.  It consists of ten members made
up from various state departments and private inter-
est groups (N.D.C.  161-28-03).  The Board may in
cooperation with the State Health Board adopt water
quality standards and the Act has civil and criminal
sanctions to secure compliance (N.D.C.  §61-28-05 and
61-28-08).  The powers of the Board include the devel-
opment of a comprehensive program to prevent, abate
and control both new or existing pollution.  The
Board's powers include issuance of orders prohibiting
or abating discharges of wastes into the waters of
the state and to require the construction of new
disposal systems or the modification of existing
systems to prevent and control pollution (N.D.C.
§61-28-04).

REFERENCES

Geraghty, J., D. Miller, F. Van der Leeden, and
F. Troise, Water Atlas of the United States. Water
Information Center, Port Washington, H.Y., 1973.
                                                      202

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                                             APPENDIX A REPORT 11
                                                   OKLAHOMA
11.1  HISTORICAL BACKGROUND
Oklahoma is a semi-arid to sub-humid state of 69,919
square miles which diverts approximately 820 million
gallons per day to irrigate some 620,000 acres of
land.  The state receives precipitation ranging from
50 inches  in the southeast to 22 inches in the west
and as low as 15 inches in the panhandle with an
average for the state of 32 inches.   The Upper
Arkansas-Red and Lower Arkansas-Red-White drainage
basins comprise the entire state.  The two major
rivers are the Arkansas and Red Rivers  (Geraghty,
1973).

Due to the wide range of precipitation found through-
out the state, both the riparian and appropriation
doctrines for water allocation and use were adopted
and operated simultaneously.

The natural flow theory of riparian rights was
adopted in 1890 along with the recognition of private
ownership of diffused surface waters  (Terr. Okla.
Stat. §4162, 1890, repealed in 1963).  The basic
appropriation statute was enacted in 1897.  It has
subsequently been amended and revised in 1905, 1963,
and 1972. Today, Oklahoma is basically an appropria-
tion state.  The recognition of riparian rights,
however, creates a mild state of confusion.

The Oklahoma Supreme Court rejected the natural flow
theory and adopted the reasonable use theory in
Baker v. Ellis (292 P.2d 1037, Okla. 1956) and
Broady v. Furray (163 Okla. 204, 21  P.2d 770, 1933).
These cases concerned the method of adjudicating
rights between riparians.  Riparians were given the
right to make use of water as long as other riparians
were not substantially or unreasonably damaged.

Prior appropriation was first recognized in 1897 (Laws
Terr. Okla. ch. 19 art. I, 1897).  This early law
provided that water, including ordinary and underflow
streams and storm waters, was subject to appropriation.
The statute, containing the basics of the appropriation
theory provided priority in time as establishing a
priority of right, beneficial use and the doctrine
of relation back.  Protection was given riparians
regarding ordinary flow and the statute further
provided that an appropriator's right be given pro-
tection with the one exception that an abutting land-
owner on a running stream, or a landowner in a
watershed, within which storm water collected, was
entitled to use the water for domestic purposes.

A new appropriation act, adopted in 1905 (Ibid. ch.
21, 1905). established a permit system in water rights.
The act retained the beneficial use limitation, the
appurtenancy doctrine, and the doctrine of relation
back.

It has not been decided whether the 1905 act provided
for an exclusive method of acquiring water rights nor
what determinations were to be applied to determine
priorities among riparians and appropriators who had
claims before or after the 1905 act (Gay v. Hicks,
33 Okla. 675, 124 P.1077, 1912).  The Oklahoma
Supreme Court held that before a permit (a valid
appropriation right) could be issued there had to be
both a general adjudication of the rights of all
appropriators of the stream and a hydrographic survey
(Gates v. Settlers' Millinfi Canal and Res. Co..
190 Okla.83, 81 P.856, 1907).
The 1963 amendments were an attempt to reconcile the
existence of both the riparian and appropriation
systems.  The principal changes were:   1)  ground
water is to be governed separately; 2) exemptions
from the appropriation system included water used
for domestic purposes,defined as water used for
household purposes, for farm and domestic  animals,
irrigation of gardens, lawns and orchards  not
exceeding three acres, and farm ponds  constructed
under the supervision of the soil and  water
conservation districts; 3) standing and flowing water
which does not form a definite stream  may  be used
by the landowner without a permit and  may  be dammed
and stored in the bed of a definite stream; 4)  there
is no provision to establish preferences for uses ..
among holders of permits to appropriate; 5) after
the effective date of the act,a riparian who wanted to
use an amount of water above that needed for domestic
purposes must apply for an appropriation right  with
beneficial use as the basis, measure and the limit
of the right to use water  (O.S.A. 82  §105.2).   The
prerequisite of a hydrographic survey  and  general
adjudication before a perfected appropriation right
could be obtained was eliminated.

11.2  SUBSTANTIVE LAW

11.2.1  Property Right in Water

In Oklahoma, riparian rights are the historical basis
of some uses but all new uses are appropriative.  The
appropriative right is an unufructuary right, the
basis of which is beneficial use (O.S.A. 82 §105.2).
Usufructuary is defined as the right of enjoying a
thing, the property of which is vested in  another,
and to draw from the same all profit,  utility,
and advantage which it may produce, provided it be
without altering the substance of the  thing (Mulford
v. LeFranc, 26 Cal. 102).  Increasing  the  salinity
of water may be such an alteration of  the  substance
of the water as to provide a possible  approach  to
the salinity control problem.

Water flowing in a natural stream is declared to be
public property, not subject to private ownership.
Any rights which do attach are usufructuary rights
to take the water from the stream and  apply it  to a
beneficial use.  Private rights of ownership do not
attach to the corpus of the water as long  as it
remains in the stream in its natural state.

The right which an appropriator acquires is a private
property right subject to ownership and disposition
by him just as other kinds of private  property,
subject to the type and conditions of  his  permit.  In
Oklahoma, there are permanent and non-permanent
permits to use surface and ground waters.   They will
be discussed in a subsequent section.   The general
rule is that one who diverts water under a valid right
of diversion and beneficially uses that water,  becomes
the owner of the particles of water for so long as he
retains control over the water in placing  it to its
intended use.  Riparians cannot pollute the streams
nor pursue water after it leaves their lands because
it has then become subject to appropriation.

     An appropriation of water flowing on  the public
     domain consists in the capture, impounding, or
     diversion of it from its natural  course or
     channel and its actual application for some
     beneficial use (Black's Law Dictionary, 4th Ed.).
                                                       203

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The appropriator is entitled to a continuing right
in the use of waters that have been appropriated,
but not beyond that reasonably required and actually
used  (Arizona v. California, 56 S. Ct. 848, 298
U.S. 558).

Irrigation water rights are appurtenant to the land
described in the application for the water right
(O.S.A. §105.22).  However.it is possible to
transfer these rights
of Water Rights and Diversions

11.2.2  Acquisition of Hater Rights

Stream Mater
New water rights in Oklahoma may only be obtained
from the Water Resources Board pursuant to statutory
provisions and rules and regulations promulgated by
the Board.1   Water can be appropriated for
agricultural, industrial and municipal purposes,
power development, construction and operation of
city water works, public parks, game preserves,
refuges and management areas, propagation and
protection of fishery resources, recreation, housing
developments, pleasure resorts and water quality
control  or any other beneficial use, with the amount
for each such use specifically stated (O.W.R.B.
Rules and Regulations §305.1).

Initiation of a water right begins with an applica-
tion submitted to the Board on forms provided by it
(O.S.A.  82 § 105.9).  Any person or legal entity
wishing to use any waters of the state must file an
application with the Board prior to constructing
any works or diverting from existing facilities.

The application contains numerous standard require-
ments of the applicant to identify the user, type
of use, source of supply, and place of use, but has
one additional particularly interesting and highly
praised feature - it requires that the total amount
of water to be appropriated per calendar year be
stated in acre feet and the rate of diversion
indicated in gallons per minute or c.f.s.  This
requirement resolves a serious criticism of most
direct flow water rights in other western states,
where the only measure of the right is beneficial
use up to so many g.p.m. or c.f.s. per day.  It
places an upper limit diversion potential to the
appropriative right, which, when taken in
conjunction with the priority system and types of
permits issued, gives the state a legal basis for not
only water allocation and distribution, but a
tool for water management as we!1.

Special regulations exist for irrigation uses of
water.  The law makes a water right for this purpose
appurtenant to the land to which it will be applied.
Thus, section 315 of the O.W.R.B. Rules and Regula-
tions requires an accurate legal description to the
nearest 40-acre subdivision and statement of the
crops to be irrigated.  If the land to be irrigated
is not owned, evidence of the legal right to use
the land must accompany the application.
iThe Oklahoma Water Resources Board has issued
detailed rules and regulations for acquiring and
using surface and groundwaters, procedures to be
followed, fees and other relevant matters.  See
publication number 45, 1973, Oklahoma Water
Resources Board, hereafter cited as O.W.R.B. Rules
and Regulations.
Once the application has been filed with the Board,
other water right holders are notified of the filing
and date for a public hearing through publication in
newspapers having general circulation in the locality
of the proposed appropriation.  Interested parties can
present objections to application at the hearing.

Hearings on applications are held in the Board's
offices.  Approval of the application follows only
after the Board finds the applicant has a present or
future need for the water requested, that unappropri-
ated water exists and that the proposed diversion and
use will not interfere with existing water rights
(O.S.A. 82, §§105.12, 105.14).  Once the application
has been approved and the permit fee paid to the Board,
a permit will be issued authorizing the holder to pro-
ceed under the terms of the permit.  If a permit is
denied on the basis of no unappropriated water avail-
able in the amount applied for but there is water
available, the applicant may file an amended applica-
tion applying for the lesser amount (O.W.R.B. Rule
345).

Oklahoma has a permit system for surface waters con-
sisting of four classes of permits (O.W.R.B. Rule 350).
These permits fall into two categories—permanent
("perpetual" in most western states) and nonpermanent.
The permanent permits are either regular or seasonal.
Under the former, the water user is authorized to
appropriate water on a year-round basis from a source
and in an amount approved by the Board.

The seasonal permit is the same except that diversions
can only take place during specified periods during
the calendar year.

Flexibility is built into the Oklahoma surface water
law by providing for two types of nonpermanent water
rights.  A temporary permit can be granted for a per-
iod of up to three months from a particular source and
in a specific amount by the Board.  The Board may also
place other conditions in the permit which would allow
cancellation by Board notice.  The second type of non-
permanent permit is the term permit.  This authorizes
the permit holder to use a set quantity of water from
a particular source for a given number of years.  At
the end of the fixed term, the right expires.

The priority date of the water right will relate to
the date of filing the application provided construc-
tion of works begins within two years (unless extended
by the Board upon a showing of good cause), and the
water put to beneficial use according to the terms of
the permit.  There is an explicit qualification of
the Board's authority, however, with respect to re-
quiring beneficial use under a regular permit.   They
can not require the whole amount of water to be put
to beneficial use within a period of less than seven
years.   However, if it appears the total amount of
water cannot be put to use in seven years, the Board
is authorized to provide in the permit a schedule of
times when certain percentages must be put to use.
This schedule is based on the useful life of a pro-
posed project (O.S.A. 82, §105.16).

For water right claims prior to the enactment of the
present law, the statutes provide for determination of
priority in the following manner.  Priority in time
gives the better right.  For water right claims prior
to June 10, 1963, the statutes provide for a determi-
nation of vested right priorities based on prestate-
hood uses, adjudications, filing of applications,
federal withdrawals, and proven beneficial use
                                                     204

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without an application.  From and after 1963,
priorities are based upon filing and perfecting
an application (O.S.A. 82, §105.2:B).

The law exempts the use of water for domestic pur-
poses from the above procedures and allows up to a
two year supply to be stored  (O.S.A. 82 §105.2).

There are two other important provisions regarding
surface waters.  A landowner whose land contains
the origin of a spring cannot interfere with the
natural flow as to prevent it from reaching a water-
course.  Spring waters,which form a natural water-
course,are subject to the same provisions which
regulate uses of water from other watercourses.
If the spring is not a tributary to a natural water-
course then the owner of the lands upon which the
spring originates owns the spring water (O.S.A. 82
§ 60).

In Oklahoma, a landowner may use diffused surface
waters without regard to downstream users and need
not obtain an appropriation permit (Garret v.
Haworth. 183 Okla. 569, 86 P.2d 822, 1938).

Ground  Water—
Wate
,  the
which stated a landowner owned the waters under the
surface of his property that did not form a definite
stream  (Okla. Terr. Stat. §4162, 1890).  Allocation
of this percolating water, however, was based upon
the doctrine of reasonable use  (Canada y. City of
Shawnee. 179 Okla. 53, 64 P.2d 694, 1937).  Then
in 1949, a major revision of the laws took place in
which the doctrine of prior appropriation was adopted
for allocation and use of all ground water (Okla.
Ground Water Law of 1949, Okla. Law of 1949, p.641).
Upon approval of a properly filled out application,
the applicant could proceed with the use of the
ground waters. Where an area was designated as
critical, a permit was issued.

The legislature enacted a new ground water code in
1972 which set forth the following policy:

     It is hereby declared to be the public policy
     of the State, in the interest of the agricul-
     tural stability, domestic, municipality,
     industrial and other beneficial uses, general
     economy, health and welfare of the State and
     its citizens to utilize the ground water
     resources of the State, and for that purpose
     to provide reasonable regulations for the
     allocation for reasonable use based in hydro-
     logic surveys of fresh ground water basins
     or subbasins to determine a restriction on
     the production based upon the acres overlying
     the ground water basin or subbasin.  The
     provisions of this act shall not apply to the
     taking, using or disposal of salt water
     associated with the exploration, production
     or recovery of oil and gas or to the taking,
     using or disposal of water trapped in
     producing or nonproducing mines  (O.S.A. 82
     §1020.2).

The 1972 legislation, which became effective July
1, 1973, instituted a permit system for all ground
water withdrawals except domestic uses.  One wishing
to use ground water for other than domestic purposes
must file an application with the Oklahoma Water
Resources Board   (O.S.A. 82 §1020.7).  In addition
to meeting standard requirements that identify
the user, use and place of use, the applicant must
state the total amount of water requested in acre-
feet and the withdrawal rate, obtain written
permission from the landowner to use the surface
to withdraw water from the undergound basins if
the applicant does not own the land where the well
will be placed and state who adjacent landowners
are and if there are other wells within one-half
mile or less (O.W.R.B. Rules and Regs. §615.1).

An application properly submitted will  be set for
public hearing with notice to interested parties
published in local newspapers.  A finding must be
made by the Board that the applicant overlies a
ground water basin and that the use will be
beneficial.  If this can be determined,the permit
may be approved.

The Board may issue a regular, temporary or special
permit.  A regular permit grants the applicant
a proportionate share of the maximum annual yield
from the basin  (O.S.A. 82 §1020.9).   This share is
a percentage of the total annual yield of the basin
prorated by the applicant's leased or owned land
overlying the basin.  The duration of the permit
is no less than the basin's remaining life as
determined by the Board.

A temporary permit is similar to a regular permit,
but is issued prior to the completion of the
hydrologic survey and determination of the basin's
maximum annual yield.  The amount of water allocated
is 2 acre-feet per acre unless the Board is
presented evidence that a greater amount will not
exhaust the water in twenty years.

The special permit is of limited duration, not to
exceed six months nor renewed more than three times.
It  is f6r allocation of water quantities in excess
of  those allowed  under a regular or special permit.

The statute provides for well spacing (O.S.A. 82
§1020.17)  and protection of  vested water rights
(O.S.A. 82 §1020.14).  The priority date of a ground
water right granted under the 1972 law  is the date
of  receipt of  application by  the Board.

Prescriptive Water Rights—
Oklahoma has no statutory provision dealing with the
acquisition of water rights  through prescriptive or
adverse possession.  However, the inapplicability
of  such concepts  can be assumed in that water rights
not acquired under statutory  provisions or claimed
under Section 60  in Title 60  are not recognized
(O.S.A. 82 § 105.17).

Preferences—
Oklahoma law does not establish a system of preferen-
ces for competing appropriative uses.

11.2.3  Adjudicated Water Rights v. Historical
         Diversions
                                                   Riparian rights are the historical  basis  of  some
                                                   uses of water.   All new uses,  however,  are appro-
                                                   priative.  The resolution of conflicting  claims to
                                                   the use of water is accomplished through  statutory
                                                   adjudication proceedings:

                                                        When the Water Resources  Board determines the
                                                        best interests of the claimants to the  use of
                                                        water from a stream system will be served by
                                                        a determination of all rights  to the use of
                                                        water of such system, the Board may  institute
                                                       205

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     a suit on behalf of the state for the determin-
     ation of all rights to the use of such water
     and shall diligently prosecute the same to a
     final adjudication.  The cost of such suit,
     including the costs on behalf of the state,
     shall be charged against each of the parties
     thereto in proportion to the amount of water
     rights allotted.  Provided that after the
     effective date of June 10, 1963, neither the
     bringing of such suit nor an adjudication in
     such cases is authorized by this act  (O.S.A.
     82 5105.6).

Suit may be brought in district court by any person
whose right to use water from a stream has been
impaired by another's actions  (O.S.A. 82 §105.5).
The attorney general is required to intervene on
behalf of the State in any adjudication if notified
by the Water Resources Board that intervention would
serve the public interest.  The Board may institute
a general adjudication in the interests of the water
users within a stream system that would be better
served by a determination of all of the water rights
within the system  {O.S.A. 82 §105.6).  All persons
using water, or who claim a right to use water are
to be made parties to the litigation.  In any
statutory adjudication, water users who are not
parties to the suit are not bound by the decree
(O.S.A. 82 §105.7).   The final decree is to describe
the rights of each party regarding:  priority, amount,
purpose, place of use, and (as to water used for
irrigation) the specific tracts of land to which it
would be appurtenant.  The decree may also include
such other conditions that may be necessary to
define the right and its priority  (O.S.A. 82
S105.8).

11.2.4  Conditions of Use

Beneficial Use—
The legislature of Oklahoma stated that beneficial
use shall be the basis, measure and limit of the
right to use water  (O.S.A. 82 §105.2).   Subsequently,
the Water Resources Board expanded upon the defini-
tion to enable it to carry out its duties in
allocating water and administering the law.  The
Board applies the following definition to both
surface and ground water:

     Beneficial use is the use of such quantity of
     water when reasonable intelligence and reason-
     able diligence are exercised in its application
     for a lawful purpose, as is economically
     necessary for that purpose  (O.W.R.B. Rules
     and Regs. §300.1 (m) and §600.1 (g)).

The Element of Economics and Reasonable Use--
As cited in the preceding quote, the Water Resources
Board recognizes that economic feasibility is a
legitimate limitation on application practices.
The Oklahoma Supreme Court has not utilized the
term "economics" to expand the definition of
beneficial or reasonable use.  Regardless of the
term applied, the question addressed is the need
not to waste water.

The term "economically" appears in Sec. 82-105.22,
which deals with the severance and transfer of a
water right.  It provides that a transfer will be
permitted when it becomes economically impracticable
to use the water on lands to which the right is
appurtenant.
Waste—
Waste of water can be controlled under the law of
Oklahoma either in the process of misusing quantities
of water or in the sense that "wastes" pollute
waters and thereby make the waters unfit for further
beneficial use.  The former method of control
pertains to the exercise of a water right.  A water
user is responsible for utilizing the water he
diverts in a reasonable and beneficial manner, and
may be charged with committing a misdemeanor for
each day that such violation occurs  (O.W.R.B. Rules
and Regs. §385.1 for surface water rights, and
§660.2 for ground water rights).  In addition to
bringing criminal actions for waste, the Board may
request the district court to order the enjoining
of the practice.

Waste is defined in the Oklahoma statutes as being
industrial waste and all other liquid, gaseous, or
solid substances which may pollute or tend to
pollute any waters of the state  (O.S.A. 89 §926.1),
and is likewise controlled by the Oklahoma Water
Resources Board.

11.2.5  Manner in Which Water Rights May Be Adversely
        Affected

Forfeiture—
Oklahoma has adopted a statutory forfeiture provision
by which the rights to use water may be lost.  The
approach is unique in its distinction between the
failure to commence using water under a permit, and
the non-use after the water right was exercised.
Under the former case where a right holder did
riot divert water authorized under a permit and apply
it to beneficial use, the amount not used is
forfeited and this water is subject to appropriation
(O.S.A. 82 1105.19).

The.same section of the law provides that where a
right holder did commence using water to which he
was entitled under a permit, and then fails to
exercise all or a part of the water right for seven
continuous years, he forfeits his right to divert
the unused water quantity and such waters again
become public, subject to appropriation (ibid ).

Prior to canceling a water right for non-use, the
Water Resources Board must notify the right holder
by written notice if possible, or by publication in
local newspapers of a hearing on the issue  (O.S.A.
82 §105.18).  At such hearing, the claimant must
show cause why the right in total or part should
not be cancelled.  A right of appeal to the
district court is the claimant's last resort to
prevent the loss.

Annual Reports-
Oklahoma has a further unique provision in the agency
rules that affects the security of a holder's water
right, and conversely, makes administration of the
law more efficient and effective.  The rules and
regulations of the Board places the burden of filing
annual water use reports for both surface and ground
water rights.  The reports, filed on a card mailed
by the Board in January of each year to a water
right holder, contains data on the nature and extent
of water use.  The significance is twofold:
(1)  an accurate registry  of water rights is
maintained with the responsibility primarily upon
the user, and  (2) the  wilful failure to complete
and return the form may be considered as prima facia
evidence of non-use and thus subject the right to
forfeiture  (O.W.R.B. Rules & Regs. S385.7 and 660.6;
O.S.A. 82 51020.12).
                                                     206

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11.2.6  Legal Incentives and Disincentives for More
        Efficient Water Use Practices

Irrigation Return Flow/Salvaged & Developed Waters—
There have been no cases in Oklahoma directed toward
the use of irrigation return flow, salvaged or
developed waters.  However, as a general proposition,
once return flows reach a watercourse, they are
available for appropriation by downstream users.
If the water is captured by the landowner before
escaping his property, he can generally recapture
and use it.  A provision in the statute does raise
a potential problem.  The law provides that:

     Water turned into any natural or artificial
     watercourse by any party entitled to the use
     of such water may be reclaimed below and
     diverted therefrom by such party, subject to
     existing rights, due allowance for losses being
     made by the Board  (O.S.A. 82 §105.4).

Provisions for Transfer of Water Rights and
Diversions—
Irrigation water rights are appurtenant to the land
upon which the water is applied  (O.S.A. 82 §105.22).
However, the water right may be severed and trans-
ferred to other land without loss of priority if it
has become impractical to use the water either
beneficially or economically, and the transfer will
not be detrimental to other water rights.

The Board has adopted a procedure for processing
transfer requests.  An application is to be
submitted to the Board and notice of intent to
transfer published in a newspaper of general
circulation in the county(ies) where the land is
located (O.W.R.B. Rules & Regs. §3.75).  After a
hearing on the application, the Board will issue
an order denying or granting the transfer.  It is
the duty of the Board to protect the rights of
other water users who entered comments at the hearing.

The same procedure applies to requests for change in
point of diversion, storage or use of water (O.S.A.
82 §105.23).   An assignment of a water permit is
only binding upon the parties to the transaction
unless filed with the Board  (O.S.A. 82 §105.24).
However, no assignment that detaches the water right
from the land to which it is appurtenant is permis-
sable unless the previously discussed provisions or
transfers are complied with.  Further, it is a
misdemeanor to commit such a transfer without
following the procedure set out above  (O.S.A. 82
§105.20)1

11.2.7  Waste Water Disposal and Drainage

Disposal of Waste Waters--
The Oklahoma Supreme Court has adopted a modified
common enemy rule with respect to the right of
adjoining landowners to rid themselves of unwanted
surface waters  (O.S.A. 82 §105.2).  A landowner may
use diffused surface waters without regard to down-
stream users and he does not have to obtain a permit
to appropriate   (183 Okla.  569, 86 P.2d 822, 1938).
11.3  ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS

11.3.1  State Water Agencies

The Oklahoma Water Resources Board is charged with
the responsibility for the administration, control
and regulation of waters within the state.  It
has the power to develop a state water plan to
insure the most effective use of water within the
state  (O.S.A. 82 §§1085M and .2).  The Board
is authorized to negotiate contracts and compacts
with the Federal Government and other states for
flood control and water conservation.  The Board
may also appropriate water for use by special
purpose districts in the state.  The Board may
divide the state into water districts to facilitate
administration of the law.  Where there is an
unauthorized use of water, or transfer of water
right, failure to repair water works after notice
by the Board, waste of water or other conduct in
violation of the law or rules and regulations of
the Board, the Board can file both criminal
charges against the violator and seek remedial
action to enjoin the activity in the proper
district court  (O.S.A. 82 §105.20).  In addition,
the legislature granted the Board the authority
to make any rules, regulations and orders that it
considers necessary to carry out any duties
imposed upon it by law  (O.S.A. 82 §1085.2).

In 1972, the seven member Board was increased to a
nine member Board with one representative from each
of the six congressional districts and three members
appointed at large.  Members of the Water Resources
Board also make up the Water Conservation Storage
Commission  (O.S.A. 82 §1085.18).  This Commission
reviews proposed projects where water is to be
stored and retained.  If the commission finds water
in excess of future or present needs then the
appropriate State or Federal agency is notified
by the commission of its conclusions and the project
is constructed  (O.S.A. 82 §§1085.20 and .21).

If a project has been constructed in conjunction
with the Federal Government, the commission may
purchase excess project water (i.e., that water not
purchased by existing users)  (O.S.A. 82 §1085.21).
This water can then be sold to municipalities,
industry or agricultural users.  The Commission
assists in the development of water storage and
control facilities for the use and benefit of the
public and for the distribution and conservation of
water (O.S.A. 82 §1085.17), and to aid in distribu-
tion of water among users.

11.3.2  Judicial Bodies

Oklahoma does not have special water courts.  Suit
may be instituted in district court to adjudicate
conflicting water rights.  Water Resources Board
decisions may be appealed to district court
(O.S.A. 75 §301).

11.3.3  Water Users and Their Organizational
        Structure
                                                          Individuals—
                                                          Water can be appropriated by an individual  or  any
                                                          legal entity, i.e..corporation, company,  partnership
                                                          or agency,   the rules of water allocation and  use
                                                          previously discussed apply to any permit  holder.
                                                          Thus, we have provided in the law both  rights  and
                                                          duties to which a water user must comply.   The
                                                          nature of vested water rights (those  established
                                                          prior to the enactment of the 1963 water  act)  and
                                                     207

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appropriative rights (created under the current law)
provide the holder with a property interest recog-
nized and protected by the State.  A right holder may
also initiate an action in the appropriate district
court to protect his interest from impairment by
others  (O.S.A. 82 §105.5).  Each right has its own
peculiarities in source, amount, place of use, and
priority.

At the same time, the right holder is obliged to
respect the public and other right holder interests
by applying the water to beneficial use and only
diverting those amounts necessary for the purpose
at the time of diversion.  Other duties are to
prevent waste and comply with provisions of the
law and Board rules, orders and regulations on use,
transfer and assignment of water rights.

Districts—
There are many special purpose districts in Oklahoma.
Those associated with water matters include:
irrigation districts, conservancy districts, water
and sewer management districts, conservation
districts, and regional water distribution districts.
These entities are organized under special legisla-
tion, are public corporations, and considered
subdivisions of the state.

Oklahoma, like many of the other western states, was
faced with the problem of stimulating and assisting
water development at the local level beyond what
capabilities an individual or group of water users
could achieve.  And like most of the other western
states, Oklahoma witnessed the success of the
California irrigation district enterprises formed
under the Wright Act of 1887, and subsequently
adopted similar legislation (O.S.A. 82 §§277.1 to
277.24).   The law was amended with the Irrigation
District Act of 1973  (Okla. H.B. 1174).  Following
the initial irrigation district law, the need
arose for entities with other purpose capabilities
and higher levels of organization, and, consequently,
laws authorizing the formation of the other special
districts mentioned were enacted.

An irrigation district is an organization that is
primarily organized to develop and improve the
water resources utilization within a common area
through planning, construction operations, and
maintenance of the irrigation system facilities.
It may be organized ^> contract with the state or
U.S. Bureau of Reclamation, or other federal agencies
to carry out its purposes.  The 1973 Act sets out
the specific requirements and procedures for
formation of a district and how it should be operated

A Board of Directors, elected by the qualified
electors of the district, governs the activities of
the district.  This Board has the power to apply
to the Water Resources Board for use of stream or
ground water, and otherwise acquire water rights
for the district.  Most important is their duty
to prepare a uniform service agreement providing
for the equitable distribution and use of water
among  the  district members  (O.S.A. 82  §277.6(3)) and
the power  to  provide  for the proper drainage  of lands
(O.S.A. 82  §277.6(2)).   Further, a district may en-
large  its  powers  in order  to develop comprehensive
plans  for  the efficient  use of  fresh ground water
and the prevention and control  of waste if more than
50% of the  landowners desire to do so  (O.S.A. 82  277
§277.22(5)).

Among  the  other districts warranting discussion is
the regional water distribution  district.  A  water
 district organized under the 1972 Act is a nonprofit
 entity with power to:

      1.  Acquire rights to water for beneficial  uses
          (O.S.A. 82 §1272).
      2.  Acquire water storage facilities and  store
          water in reservoirs (O.S.A. 82  §1267).
      3.  Purify, treat and process such  waters (Ibid).
      4.  Furnish water to persons requesting such
          service (Ibid).

 Plans for any facilities  must be approved by the Water
 Resources Board and State Department of  Health.

 11.4  Pollution Control

 The  Water Pollution Control  Act  is administered  by the
 Water Resources Board.  The Board has  the authority  to
 advise and consult with local, state and  federal agen-
 cies; to  develop comprehensive programs  for the  con-
 trol, prevention and abatement of new  or  existing
 pollution;  to require plans  and  specifications to be
 submitted for industrial  disposal  facilities;  and to
 accept and  administer federal grants and  loans
 (O.S.A. 82  §926.3).   Standards of water quality  and
 classifications of streams  according to their  best
 present and future uses are  also  the duties of the
 Board.  A reasonable time is  allowed for  persons dis-
 charging  wastes into the  waters to comply with the
 Board's classifications and  standards  (O.S.A. 82
 §926.6).  After notice and a  hearing,  the Board may
 issue an  order to  prevent violations of the act or of
 prior order of the Board.  Criminal penalties are pro-
 vided for by  the courts.  Any Board order may be
 appealed  in the district  court (O.S.A. 32  §926.7
 and  926.10).

 Planning  pollution  control programs is the responsibil-
 ity  of  the  Department of  Pollution Control, an inde-
 pendent state  agency.  This department is administered
 by the  Pollution Control  Coordinating Board which is
made  up of  nine members appointed  by the Governor
 (O.S.A. 821932).  The Pollution Control  Coordinating
Board coordinates the activities of those state depart-
ments having responsibility for environmental  matters.
 It may also require the agencies to take action to
correct violations of the water pollution control leg-
islation.  To abate pollution, suit may be instituted
through the attorney general for injunctions,  criminal
sanctions are provided for in the  statutes and  private
suits to abate pollution or suppress nuisances  are
provided for (O.S.A. 82 §937).  Enforcement of  pollution
control programs lies mainly with  individual  state
departments.  The Pollution Control Coordinating
Board may, however, act on its own to prevent or abate
pollution if a majority of Board members  feel  that the
state agency having jurisdiction has neglected  to take
the appropriate action (O.S.A. 82 §934).

REFERENCES

Geraghty, J., D. Miller,  F. VanderLeeden, F. Troise,
Water Atlas of the United States, Water Information
Center, Port Washington, N.Y., 1973.
                                                     208

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                                              APPENDIX A REPORT 1?

                                                     OREGON
 12.1 HISTORICAL  BACKGROUND

 Oregon  is a  state of 96,981 square miles of which
 there are 1.9 million acres of  irrigated agriculture.
 The state receives an average of 27  inches annual pre-
 cipitation.  An  average of 4,800 million gallons per
 day is  withdrawn from surface and ground waters for
 irrigation purposes (Geraghty,  1973).

 The evolution of water law in Oregon  is characterized
 by a mixture of  riparian rights and appropriation
 rights.1  The state initially adopted the riparian
 doctrine (Taylor v. Welch. 6 Ore. 198, 1876).  This
 doctrine holds that a riparian  landowner (a landowner
 whose land abuts a stream) has  the right to the flow
 of the  stream without an unreasonable detention of
 the water or diminution of its  flow.  Even during
 that period when riparian rights were being recognized
 in Oregon, the Oregon Supreme Court had reservations
 about the doctrine (Hough v. Porter, 51 Ore. 318, 95
 P. 732, 1908, 98 P. 1083, 1909, 102 P. 728, 1909).
 This doubt centered around the  idea that beneficial
 use should be the test of a water right and not land
 possession.  It was argued that unless a riparian own-
 er used and benefited substantially from the water,
 such an owner should not be allowed to prevent the use
 of water by others claiming it under an appropriation
 doctrine (Ibid.  See also Norwood v. Eastern Oregon
 Land Co., 112 Ore. 106, 227 P. 1111, 1924).In addi-
 tion, the Oregon Supreme Court took the position that
 any land patented from the Federal Government after
 the Desert Land Act of 1877 carried with it water
 rights  (Hough v. Porter. 51 Ore. 318, 95 P. 732, 1908;
 see also Lewis v. McClure, 8 Ore. 273, 1880).  This
 recognition was  critical in Oregon since virtually all
 land titles in the State emanate from the Federal Gov-
 ernment (Clark,  1974, p. 93).

 The Oregon Legislature in 1909, after further judicial
 erosion of the riparian doctrine, rejected the doc-
 trine and enacted legislation which implemented the
 appropriation doctrine as the exclusive method of ac-
 quiring water rights in the state (O.R.S. § 537.010 to
 537.990).  A permit system was introduced to adminis-
 ter water rights which replaced the pre-1909 methods
 of posting and recording notice of intent to appropri-
 ate with the County Clerk.   While recognizing the ap-
 propriation doctrine as the exclusive method of ac-
 quiring rights, the statute provided for the protec-
 tion of existing rights vested under the riparian doc-
 trine.   The Water Code of 1909 did restrict the vest-
 ed riparian right to the quantity of water which was
 being beneficially used at the time the legislation
was passed, or which was placed to use within a rea-
 sonable time thereafter (O.R.S.  § 539.010).   The need
 for the appropriation doctrine was fairly clear since
 riparian ownership establishes no priority.   As was
 noted by one notable case,  there is no  such thing as
 prior riparian ownership insofar as the distribution
of water for irrigation between riparian owners is
 concerned (Hough v.  Porter. 51  Ore.  318, 95 P.  732,
 1908).   An area depending on irrigation could not al-
 low all  owners to demand water because in all  proba-
bility the water supply could not meet all  such de-
mands.   It was clear that the riparian doctrine was an
                                                          unworkable solution to the water allocation problem in
                                                          Oregon, and the appropriation thus is the most signif-
                                                          icant legal system for allocating waters from surface
                                                          and ground waters.

                                                          Oregon adopted its first ground water law in 1927
                                                          (Ore. Laws 1927, c. 410) after judicial  interpreta-
                                                          tions taking the state from the absolute ownership
                                                          doctrine (Taylor v. Welch. 6 Ore. 198, 1876) to a
                                                          possible modified version of the reasonable use doc-
                                                          trine.2  The basin ground water provisions of 1927
                                                          were subsequently replaced by a comprehensive Ground
                                                          Water Act in 1955.  This Act reflected the state's
                                                          recognition that previous laws prevented the orderly
                                                          development and control of ground waters in light of
                                                          population growth and water demands.

                                                          A significant reorganization took place  in 1975 which
                                                          may cause considerable confusion keeping straight the
                                                          various administrative bodies concerned  with water in
                                                          Oregon.  Prior to July 2, 1975, Oregon's organization-
                                                          al structure consisted of a State Engineer and Water
                                                          Resources Board.  The former contained the staff to
                                                          carry out the policies and directives of the Board.
                                                          Under HB 3180, signed 2 July 1975 by  the Governor of
                                                          Oregon, the State Water Resources Board  and Director
                                                          of the Board were abolished and a new body was cre-
                                                          ated entitled the Water Policy Review Board.  The of-
                                                          fice of State Engineer was likewise abolished and
                                                          those powers vested in the Water Resources Director.
                                                          The Department of Water Resources was established,
                                                          which consists of the Water Policy Review Board and
                                                          the Water Resources Director and his  staff.  The de-
                                                          tails of the organization are in section 12.3.1.

                                                          12.2  SUBSTANTIVE LAW

                                                          12.2.1  Property Right in Water

                                                          In Oregon all the waters of the state from any source
                                                          have been declared to belong to the public (O.R.S. §
                                                          537.110).  Water flowing in a natural  stream is not
                                                          subject to private ownership.  Any private rights
                                                          which do attach are strictly usufructuary rights  to
                                                          take the water from the stream and apply it to a  ben-
                                                          eficial use (In re Hood River. 114 Ore.  112, 227  P.
                                                          1065, 1924).   The right to water does  not attach  to
                                                          the corpus of the water as long as it remains in  the
                                                          stream in its natural  state (Nevada Ditch Co.  v.  Ben-
                                                          nett, 30 Ore.  59, 45 P. 472, 1896).

                                                          To obtain a usufructuary interest the  claimant must
                                                          actually divert whatever quantity of  water is required
                                                          for his proposed use (Nevada Ditch Co. v.  Bennett.
                                                          loc.  cit.).

                                                          In Barker v.  Sonner (135 Ore. 75, 294  P.  1053,  1931)
                                                          the Oregon Supreme Court held that water becomes  per-
                                                          sonal property when it has been appropriated and  tak-
                                                          en into possession by confinement in  ditches or other
                                                          artificial  works (Coast Laundry Inc.  v.  Lincoln City,
                                                          9  Ore.  App.  521,  497 P. 2d 1224,  1972).The right
                                                          which an appropriator gains is a  private property
                                                          right subject to ownership and disposition (In  re
                                                          Schollmeyer,  69 Ore.  210, 138 P.  211,  1914).

          discussion in A Summary-Digest of State Wa-     	
ter Laws, a Study for the National Water Commission,            2See Rights to Underground Water  in Oregon:  Past,
Richard L. Dewsnup and Dallin W.  Jensen, editors,         Present and Future,   Willamette  Law Journal  317  at
1971, Chapter 37, pp. 619-635.                            324,  1965.

                                                      209

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  An appropriator is entitled to a continuing  right  to
  the use of such waters that have been  appropriated,
  but not beyond that reasonably required  and  actually
  used (Claypool v.  O'Neil,  65 Ore.  511, 133 P.  349,
  1913).   Thus  his right is  one to use the resources,
  not a right in the corpus  of the water.   The right ac-
  quired  consists of six factors which define  its  posi-
  tion relative to other rights and the  specific proper-
  ties of the right.   These  factors  are:   (1)  priority
  date or right, (2)  quantity that can be  divided  under
  the right,  (3) place where the water can be  applied,
  since water rights  are appurtenant to  land in  Oregon,
  (4) the season(s)  or period of use, (5)  type of  use
  to which the  water can be  put,  and (6) the location of
  the point of  diversion (Tudor v. Jaca. 178 Ore.  126,
  164 P.  2d 680, 1945).3

  12.2.2   Acquisition of Right

  Anyone  desiring  a water right must make  application to
  the Water Resources Director for a permit.   This ap-
  plication must be made and the  permit  issued before
  the applicant may begin to construct works.1*   The ap-
  plication must be approved if there is unappropriated
  water available  and the application is for beneficial
  use.  The applicant must proceed with reasonable dil-
  igence  to construct the project  and place the water
  to  beneficial  use once the application has been ap-
  proved.  Construction  must begin within  one year, and
  the project must be completed within five years
  (O.R.S.  5 537.230).5 The one-year  time limit within
 which to begin the  project appears to be very  strict
  in  Oregon.   One  decision has held  that failure to be-
 gin within one year  is  fatal to  the permit even where
 the applicant  showed diligence in proceeding with the
 project after one had  elapsed (Morse v. Gold Beach Wa-
 ter, Light and Power Co..  160 Ore. 301, 84 P. 2d 113,
 1938).The Director may allow an extension of time to
 complete the project if  good cause is  shown.

 Each application for a permit to appropriate water
 must have the name and address of the  applicant,  the
 source of the water supply, the nature and amount of
 the proposed use, the location and description  of the
 proposed diversion and carrying works,  and the  time
 within which the necessary diversion works will be
 constructed and the water applied to the  proposed use
 (O.R.S.  5 537.140).  All applications  are to  be accom-
 panied by maps, clawing, data concerning  the  proposed
 project, and evidence of the applicant's  ability to
 construct the project as the Director  prescribes.  The
 priority of the right dates from the time the applica-
 tion was filed.  For pre-1909 water rights, the prior-
 ity date usually related back to the first step taken
 to appropriate the water (In re Rights  to  Use  of Waters
 of Si Ivies  River. 115 Ore.  27, 237 P.  322, 1925)  or	
 date posting notice.

 If the permit  is for agricultural purposes, the appli-
 cant must give a legal  description of the land  to be
 benefited and  the number of acres that  will be  irri-
 gated (O.R.S.  5 537.140).
      3See Clark,  1974,  pages  137-145,  for a detailed
 discussion of these  factors.

      "*The statutory  method  is exclusive despite some
 curious  language  in  one decision  to the effect that it
 was  "debatable" whether a right could  be obtained by
 any  other method  than the statutory method of appro-
 priation.   See Tudor v.  Jaca. 178 Ore. 126, 164 P. 2d
 680, 1945.

      5 Permit actually  issued for completion within
three years but extensions beyond five  years possible.
  If, after consideration of the application, the Direc-
  tor feels that proposed use is prejudicial to the pub-
  lic interest, or if the proposed use is for hydroelec-
  tric  power in excess of 100 theoretical  horsepower,
  then the application must be referred to the Water
  Policy Review Board for consideration (0.  R. S. §
  537.170 as  amended by H.B. 3180, 1975).   This Board,
  after proper notice and hearing, is to determine
  whether the proposed use would be detrimental  to the
  public interest and issue an order accordingly.

  Once the project is completed to the satisfaction of
  the Director of the Water Resources Department, the
  applicant is issued a certificate evidencing the per-
  fected right (O.R.S. § 537.250 and 537.270).  The
  certificate which is granted upon completion is con-
  clusive evidence of the priority and the extent of the
  appropriation ( O.R.S. § 537.270).   Oregon statutes
  likewise provide for application for a preliminary
  permit on a proposed water project (O.R.S.  § 543.220,
  as  amended by H.B.  3180, 1975).

  Ground Water--
  Ground water in Oregon is governed by the Ground Water
  Use Act of 1955.  This act had the same effect on
  ground water that the Water Rights Act of 1909  had on
  surface water.   It  recodified all  statutes  and deci-
  sions  dealing with  water beneath the land  (O.R.S.  §
  537.515).   Individuals who were  using ground water
  or  to  the passage of the act had their rights  recog-
  nized  to the extent of the maximum beneficial  use any
  time within two years prior to the  effective date of
  the act (O.R.S.  §537.585).   Users who wished to be
  protected were  required to register their claims  with
  the Director and  obtain a  certificate evidencing a right
 but not a perfected  right.  Failure to register  within
.  threeyears after the act created a presumption that
  the  claim had been  abandoned (O.R.S. §537.605).

 The  right  to use  ground water is  limited by  the  same
  constraints  as  the  right to  use  surface water.  An ap-
  plication  for a permit for  such  use  has to  be  filed
 with the  Director (O.R.S.  §  537.535  and 537.615).  Ex-
 ceptions to  the general  rule  are for using  ground water
  for  stock  watering, watering  lawns,  domestic purposes
 where the  use does  not exceed  fifteen  thousand  gallons
 a day,  and for  industrial  use  that  does not  exceed
 five thousand gallons  a  day  {O.R.S.  §  537.545).

 The Director will approve the  application if it can be
 determined that there  is unappropriated water avail-
 able which can be placed in beneficial use without im-
 pairment of  prior rights (O.R.S. 5537.620).  The Di-
 rector has the authority to approve an application
 subject to any conditions which may be imposed to pre-
 vent an impairment of  a prior  right, to prevent a
 wasteful use of water, or to protect the public wel-
 fare.  Unlike surface  rights, there is no provision in
 the Ground Water Use Act to refer applications to the
 Water Policy Review Board for determination.

 The Director is directed to identify and define the
 location, extent and characteristics of each ground
 water reservoir in the state in order to conserve
 such resources.   Before the boundary or depth of any
 ground water reservoir is drawn, he is to make a final
 determination of the right to appropriate that ground
 water (O.R.S. § 537.665).   The ground  water registra-
tion  certificate the well owner gets  is not  a final
determination of the right  (as  with  the surface  rights)
because  the right  is subject  to statutory determina-
tion  proceeding  in which the  boundaries of the water
reservoir are determined  {O.R.S.  §537.610).

 A determination of the reservoir may be called  for by
                                                      210

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petition of the users of the reservoir or on the motion
of the Director.  When the determination is begun,
each user is required to file a statement of ground
water claims (O.R.S. §537.670).  In addition to defin-
ing the extent of individual rights in the reservoir,
the order of the Director defines the nature of these
rights, the boundary of the reservoir, the lowest per-
missible water level in the ground water reservoir,
serviceable methods for withdrawing water, and the
rules for controlling the use of the ground water
(O.R.S. §537.685).  Once the determination is complete
and no appeal has been taken to the District courts,
the Director issues each ground water user a certifi-
cate evidencing a ground water right (O.R.S. §537.700).
This certificate is the final determination of the
user's water right.

The Director may designate an area as a "critical
ground water area" where water has become polluted or
scarce.  This may be done on petition of the water users
or on a motion of the Director.  The grounds which are
used to determine critical areas are:
     1.  That the water level is declining excessively,
which is understood to mean that the water level is
declining faster than it is being recharged.
     2.  That substantial interference is beginning to
develop between users.
     3.  That the ground water supply in the area is
being overdrawn.
     4.  That the water quality is deteriorating
(O.R.S. §537.730).

The Director may also designate an area a ground water
area if there is no unappropriated water in the ground
water reservoir (O.R.S. §537.620).  If he defines the
ground water basin as a critical area, one of the fol-
lowing may be taken:  1) the area may be closed to
further appropriation; 2) his order may include a
determination of the permissible total withdrawal and
an apportionment of such amounts; 3) a system of pref-
erences without regard to priority of rights may be
provided; 4) the withdrawal of ground water by indivi-
dual users may be reduced; 5) the abatement of pollu-
tion may be required; or 6) a system requiring the
rotation of the use of ground water among users may
be implemented (O.R.S. §537.735).

Prescriptive Water Rights—
Ordinarily, a lower riparian owner cannot gain a pre-
scriptive right against an upper riparian owner (Day
v. Hill. 241, Ore. 507, 406 P.2d 148, 1965).  However,
water rights may be acquired in Oregon by adverse pos-
session if such use is open, notorious, adverse, and
continuous throughout the prescriptive period (Norwood
v. Eastern Oregon Land Co.. 122 Ore. 106, 227 P.1111,
1924, and Wimer v. Simmons, 27 Ore. 1, 39 P.6, 1895).
The statutory period for acquisition of rights by ad-
verse use is ten years (O.R.S. 512.050).

Preferences^-
The status of preference to the use of water in Oregon
is more complex than most other states due to the par-
tial retention of an earlier statute.  In 1893, the
law placed domestic as highest preference with agricul-
ture following ahead of manufacturing purposes (Ore.
Laws, 1893, p.  150, O.R.S. §540.140).  Then, in 1955
a section was added which gave the Water Resources
Board (now the Hater Policy Review Board—H.B. 3180,
July 1975) the authority to allocate water between
users with the same priority date and distribute water
during times of scarcity with preferences first to
human consumption, second to livestock consumption,
then to other beneficial uses according to the public
interest under the existing circumstances (O.R.S.
§536.310, 12).   The Board has authority under
§536.340(3) to adapt preferences for future uses of
water, taking into consideration the natural  charac-
teristics and economy of the area,  water requirements,
proposed uses, and other important  factors."

12.2.3  Adjudicating Water Rights

Riparian rights were recognized for some time in  Ore-
gon prior to the enactment of the permit system.
Because of this, it was necessary to have a method by
which vested riparian rights could  be adjudicated to
determine quantitatively what water, subject  to appro-
priation, was left.  Legislation passed in  Oregon lim-
its the riparian rights to water placed to  beneficial
use prior to the adoption of the 1909 statute or  with-
in a reasonable time thereafter (O.R.S. §539.010).

The statutory procedure is initiated on a petition of
the water users of a stream.  It may also be  initiated
in circuit court by convention of a private law suit
into a general adjudication proceeding (O.R.S. §539.
020).  After the action has commenced, the  Water
Resources Director must serve notice on all known
claimants.  Published notice must be made of  the  pro-
ceedings.  Water users are required to file  detailed
statements describing their claim to the use  of the
water (O.R.S. 5539.050).  After all pleadings have
been submitted, the Director receives testimony con-
cerning past use of water (O.R.S. §539.040).   He  is
also required to prepare a hydrographic survey of
the various uses of the water from  the source being
adjudicated (O.R.S. §539.120).

After receipt of all evidence, the  Director issues an
order determining and establishing  the rights of  the
users along with the finding of fact upon which the
order is based.  This administrative order  is then
filed in a circuit court, where interested  persons may
file objections or exceptions to the order.  The  court
adjudicates the water rights and upon the final deter-
mination, the Water Resources Director issues certi-
ficates of water rights (O.R.S. 5539.150).  This  pro-
cess is one of three general patterns followed in the
West and is commonly referred to as the Oregon system.
Eight other states follow this procedure.  The second
system is the Wyoming system, in which the  administra-
tive agency adjudicates the rights, but an  aggrieved
person may appeal to the court.  The third  system is
the Bien Code procedure, under which the administra-
tive agency prepares a hydrographic survey  and for-
wards it to the state Attorney General, who brings the
action in the appropriate court for resolution of
rights.7  Colorado applies a period tabulation cum
adjudication process (148-21-18 to  22).

The rights protected by the 1909 statute were vested
riparian rights to the quantity of  water being bene-
ficially used at the time the act was passed. The
reason given by the Oregon Supreme  Court for  permit-
ting the change in the method of attaining  water
rights was that it was difficult to rationalize allow-
ing a riparian proprietor to claim  an undiminished
flow of a stream without the actual use thereof  (In re
Willow Creek. 74 Ore. 592, 144 P.505, 1914).   This was
the effect of the riparian doctrine in its  purest
form.  All riparian landowners were, historically,
permitted to demand their full quantity of  water  at
any time.  They were also permitted to demand that the
river remain undiminished in quantity and quality.
    6Actually, preferences are only administered as
between water users of the same priority.

    7For a discussion of the adjudicatory  procedures,
see Stone, Albert W., "Montana Water Rights—A Hew
Opportunity," 34 Montana Law Review, Winter,  1973,
pp. 69-72.

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 12.2.4  Conditions of Use

 Beneficial  Use--
 Beneficial  use is a basis, measure and limit  to  all
 rights to use water (O.R.S. 5540.610,  In  re Deschutes
 River. 148  Ore.  389, 36 P.585,  1934).   An appropriator
 is entitled to beneficial use requirements as stated in
 the appropriator's permit.  The appropriator  is  not en-
 titled to waste water.   Applications way  be approved,
 subject to  such terms,  conditions and  limitations neces-
 sary to protect the public interest {O.R.S. §537.190).
 In no event may an application be approved for more
 water than  can be applied to beneficial use.

 There have  been several judicial  decisions based on
 the aforementioned statutory provisions,  regarding the
 amount of water to which a priority attaches.  Two de-
 cisions held that the priority of right to water ex-
 tends only  to that amount needed for the  use  for which
 the water has been appropriated (In re Umatilla  River,
 88 Ore. 376, 168 P. 922, 1918,  Broughton  v. Stricklin.
 146 Ore.  259, 28 P. 2d  219, 1934).  These decisions
 were followed by a decision holding that  a prior ap-
 propriator  cannot claim or use more water than is rea-
 sonably necessary for the purpose of the  appropriation
 (Tudor v_. Jaca.  178 Ore. 126, 164 P. 2d 680,  1945).
 StTll later the Oregon  Supreme Court held that an ap-
 propriator  of water cannot divert more water  than is
 actually put to use, reasonable transmission  losses
 excepted.   One decision seems significant in  that the
 Oregon Supreme Court has held that all waste  of  water
 should be suppressed by the court adjudicating water
 rights (In  re Deschutes River.  148 Ore. 389,  36  P. 585,
 1934).   In  an adjudication procedure between  users on
 stream, proof of actual use is  essential  in determin-
 ing the amount of water to be allocated each  user.
 Any excess  water is to  revert to the state.

 The role of the beneficial use  concept in granting wa-
 ter rights  is clear. All appropriative rights in Ore-
 gon are initiated by submitting an application for a
 permit to the Water Resources Director.   The  Director
 is required by statute  to approve all  applications
.made in the proper form unless  the proposed use  would
 conflict with existing  rights.   These  applications are
 based on the application of water to a beneficial  use.
 If the Director feels that the  use proposed may  ad-
 versely affect th^public interest, he must refer this
 application to the^Water Policy Review Board  for con-
 sideration  {O.R.S. 5 537.160).   What constitutes the
 public interest is unclear.  However,  the Board  is
 charged with determining whether the proposed use
 would be detrimental to the public interest.   Their
 decisions are to be based on the foil owing,criteria:
      a) Conserving the  highest  use of  the water  for
      all purposes, including irrigation,  domestic
      use, municipal water supply, public  development,
      public recreation, protection of  commercial  and
      game  fishing and  wildlife,  fire  protection,
      mining, industrial purposes, navigation,  scenic
      attraction or any  other beneficial use to which
      the water may be applied,  for which  it may  have
      a  special value to the public.
      b) The maximum economic development  of the  waters
      involved.
      c) The control of  the waters of this state  for
      all  beneficial purposes, including drainage,  san-
      itation and flood  control.
      d) The amount of waters available for appropria-
      tion for beneficial use.
      e) The prevention  of wasteful, uneconomic,  im-
      practicable or unreasonable use of the waters in-
      volved.
      f) All  vested and  incohate rights to the waters
      of this state or to the use  thereof,  and the
      means  necessary to protect such rights.
     g) The state water resources policy formulated
     under O.R.S. § 536.300 to 536.350 and 537.505 to
     537.525 (O.R.S. S 537.170 as amended by H.B.  3180,
     1975).
There is a wide range of beneficial  uses prescribed by
statute in Oregon {O.R.S. §536.310).  The Board is re-
quired to consider all of them as part of the legisla-
tive declaration, including the maintenance of minimum
flows (O.R.S. § 536.610, 7).  The Water Resources  De-
partment is charged with enforcing the laws concerning
conservation, release and discharge of excessive un-
used claims to waters of the state so that such waters
may be available for appropriation (O.R.S. § 536.300).
No cases have dealt with the definition of the words
"excessive" and "unused" in the statute.  If the local
use test is applied, an application of water which may
in fact be excessive may not be excessive under the
statute.  However, if the test is the water require-
ments for a particular crop, the type of land in use,
or the season of the year, then the words "excessive"
and "unused" may take on a new meaning.

The Elements of Economics and Reasonable Use--
OregonTs water policy is to ensure an economical de-
velopment of water and to prevent the uneconomical or
unreasonable use of water (O.R.S. s  537.170 as amended
by H.B. 3180, 1975).  Whether we limit the definition
of use by applying the terms beneficial, reasonable,
or economical, the goal is to limit the waste of water.
However, the Oregon Supreme Court recognized that  the
user should be required to make an economic as well as
reasonable use of the water (Dalton  v. Kelsey, 58  Ore.
244, 114 P. 464, 1911).

Waste—
The waste of water can be considered as the opposite
of using the water beneficially. In In re Hood River
(227 P. 1065, 114 Ore. 112, 1924), the court held  that
waste of waters is prohibited and when the water is
not used then the water must be shut off from the
ditches or laterals.  Extravagant and wasteful appli-
cation of water is not within the definition of use
(In re Water Rights of Deschutes River and Tributaries,
286 P. 563, 134 Ore. 623, 1930).  An appropriator  must
exercise reasonable care to prevent waste and ensure
that an economical use be made of water used for irri-
gation purposes (Broughton v. Stricklin, 146 Ore.  259,
28 P. 2d 219, 1934JN

12.2.5  Manner in Which Water Rights Hay Be Adversely
        Affected

Water rights may be lost in whole or in part in Oregon
by one or more of six ways.  They are:  abandonment,
forfeiture, adverse possession, estoppel, condemnation,
and enforcement of beneficial or non-waste provisions
of the statutes.8

Abandonment--
Abandonment refers to the non-use of water by an appro-
priator and the intent not to exercise his right
(Hough v.  Porter, 51 Ore. 318, 95 P. 732, 1908). This
intent need not be explicit, but rather can be inferred
from the conduct of the right holder (Jones v. Warm-
Springs Irrigation District, 162 Ore. 186, 91 P. 2d
542, 1939).

Oregon has also provided a statutory procedure for
voluntary abandonment of water rights.  This provision
enables one with a prefected and developed water right
to certify under oath to the Water Resources Director
     8Clark, 1974, p. 152 lists and defines four ways
in which water rights may be terminated.
                                                       212

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 that  he  has abandoned  the  right  and wants it canceled
 (O.R.S.  §  540.621).  The Director  is then to cancel
 the right  and  the water under  the  canceled appropria-
 tion  reverts to the  public and is  subject to meeting
 other rights or new  appropriations.

 Another  way is for the Director, either on a self-
 initiated  motion or  on evidence  submitted bv third oar-
 ties,  to initiate proceedings  to have a water right
 declared abandoned.  In this case  notice is sent to
 the owner  of the lands to  which  the water is appurte-
 nant  and to the occupant of such land.  These individ-
 uals  have  sixty days within which  to protest the pro-
 posed cancellation (O.R.S. § 540.631).  If no protest
 is filed,  the  Director enters  an order cancelling the
 right.   If a protest is filed, a hearing is held and
 after such hearing the Director enters an order either
 cancelling the whole right, cancelling in part or mod-
 ifying the right or declaring  that it is not cancelled
 or modified.  This order is subject to appeal.

 Forfeiture—
 Although the terminology varies from state to state in
 the West,  and quite often  "abandonment" and "forfeit-
 ure"  are used  interchangeably, it  is commonly under-
 stood  that in the legal senses forfeiture refers to
 the "statutory" method by  which water rights may be
 terminated after non-use for a specific time period.
 Oregon law provides that non-use for five successive
 years  is conclusive presumption of abandonment {O.R.S.
 § 540.610).y The water appropriated under the right
 reverts  to the public, and is  subject to existing
 rights or  appropriation.   Intent to abandon or forfeit
 the right  is not at issue.

 Adverse  Possession—
 Water rights may be lost by adverse possession where
 the use  is open, notorious, adverse, hostile and con-
 tinuous  for a period of ten years (Hlmer v. Simmons,
 27 Ore.  1, 39 P. 6, 1895;  O.R.S. § 12.050).  The per-
 son claiming adverse use has the burden of showing the
 use was  detrimental to the record  owner (Ison v. Stur-
 gill, 57 Ore.  109, 110 P.  535, 1910).

 This may appear cut and dried.  However, Clark raises
 a very valid and logical point as  to whether a water
 right in Oregon can be acquired by adverse possession
 after 1909 in light of the statutory provision that
water can  be appropriated  for beneficial use as pro-
 vided in the 1909 water code and not otherwise (O.R.S.
 § 537.120).  This provision, in conjunction with the
 five-year  nonuse conclusive presumption of statutory
 forfeiture and reversions  to public of such waters,
 implies  that before one could acquire rights by ad-
 verse possession after ten years,  the water would be-
 come public water after five years and only appropri-
able under the permit system provided for by law
 (Clark,  1974,  pp.  155-156).10

Estoppel--
Estoppel  is a  legal doctrine in which a person who
 leads another to believe a certain thing is true, is
prevented  from asserting claims to the benefits of the
other's efforts who proceeded in reliance upon the
former's  action.   It is probably a rare occurrence in
water law that the doctrine of estoppel is  maintained.
However,  in McPhee v. Kelsey (44 Ore.  193,  74 P.  401,
1903), the court held where a water right holder in-
duced another to spend money and labor enlarging a
ditch and  conducting water onto his land,  the former
is estopped from retracting a water right implicitly
given the  latter (Clark,  1974,  p. 152).
     aSee also Withers  v.  Reed. 194 Ore.  541,  243 P.2d
283,  1952 and Day v. Hill,  241  Ore. 507, 406 P. 2d 148, 1965.
    10This issue was argued in Tudor v.  Jaca,  178 Ore.
126,  164  P.2d  680,  1915,  but not clearly settled.
 Condemnation--
 Water rights  may  be  condemned through the exercise of
 the  preference  system  in Oregon.  However, if a high-
 er preferred  use  does  acquire a lower preferred use's
 water or  is allocated,  the letter's water, by the Wa-
 ter  Resources Director, compensation must be assessed
 and  tendered  (In  re  Schollmeyer, 69 Ore. 210, 138 P.
 211,  1914).

 Enforcement of  Beneficial Use or Waste Concepts—
 An appropriator is limited to that quantity specified
 in his permit and which is being beneficially used.
 Any  unused water  is  subject to forfeiture.  Based on
 the  cases discussed  in  section 12.2.4, supra, and the
 authority of  the  Water  Resources Director to deliver
 only water that can  be  beneficially used, an action
 can  be brought  by the  Director against one who consis-
 tently diverts  excess waters to reduce the right to
 divert.  This was the  court's finding in Oliver v.
 Skinner and Lodge (190 Ore. 423,226 P. 2d 816, 1953)
 and  In re Willow  Creek  (74 Ore. 592, 144 P. 505, 1914)
 in which a water  right was reduced due to an ineffi-
 cient diversion.

 12.2.6 Legal Incentives and Disincentives for More
        Efficient Water Use Practices

 Irrigation Return Flow--
 A downstream  senior  appropriator is entitled to have
 the  stream flow in a sufficient quantity to satisfy
 his  appropriation, and conversely, an upstream junior
 appropriator cannot  use water if that use would de-
 prive the downstream senior of his appropriated quan-
 tity.   Return flows  are those waters which return to
 a natural stream  after use, and which may become sub-
 ject  to vested  rights of downstream users.
   s
 However, a