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.
-------
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
24
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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
25
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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
29
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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.
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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
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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.
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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.
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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."
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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
44
-------
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.
45
-------
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
46
-------
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,
47
-------
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
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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
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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
71
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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).
72
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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
73
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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.
74
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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.
75
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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
76
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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.
77
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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
-------
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.
-------
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
84
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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).
85
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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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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).
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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),
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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."
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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).
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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:
100
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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.
-------
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.
-------
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
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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
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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'
-------
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,
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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.
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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"
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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
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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).
129
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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
131
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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;
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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.
-------
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).
140
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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).
153
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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
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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).
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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
156
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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.
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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).
166
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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.
-------
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
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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
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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.
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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
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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.
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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).
-------
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
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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
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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).
-------
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.
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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.
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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.).
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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
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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).
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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
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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.
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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, an appropriator can capture and reuse waste
and seepage waters if still within his control
(Cleaver v. Judd, 238 Ore. 266, 393 P. 2d 193, 1964).
The case went on to hold, also, if waste and seepage
water is recaptured for reuse within the boundaries of
an irrigation district then downstream previous users
of such waters have no right to complain.
Oregon statutes, while not comprehensive concerning
waste water, provide that the person upon whose land
seepage or spring waters arise has the first right to
use those waters (O.R.S. § 537.800). The statute fur-
ther states that all ditches now or hereafter con-
structed for the purpose of utilizing waste, spring,
or seepage waters, shall be governed by the same laws
relating to priority of right as those ditches con-
structed for the purpose of utilizing the water of
running streams. A provision for construction of
ditches for waste water being under the same rules as
other priorities indicate that one may establish an
appropriation of water that is being wasted, but that
the appropriation will take a later priority date.
Oregon has not confronted the situation of one user,
who has been making less than the totally efficient
use of water, stops using water in such a way and
makes a more efficient use of it, thereby eliminating
waste or return water.
There is one limitation and consequently a disincen-
tive to making a more efficient use of water in de-
livery and application. Water rights in Oregon are
appurtenant to specific lands and only those lands de-
scribed in the permit can be irrigated thereunder.
Thus, if water is saved in delivery through improve-
ment of the conveyance system or saved by improving
the application system, this water cannot be applied
to other lands (Williams v. AUnow, 51 Ore. 275, 95 P.
213
-------
200, 97 P. 539, 1908). This would be considered a ma-
terial extension of the original right, enlarging it
to the injury of other right holders. As was seen in
the preceding section, however, a water right may be
reduced where an inefficient diversion and delivery
system is maintained.
Salvaged and Developed Waters--
The Oregon Supreme Court implied in Jones v. Warm-
springs Irr. Dist. (162 Ore. 186, 91 P. 2d 542, 1939)
that if the user could show that new waters were de-
veloped, he would have the right to use such waters.
Provisions for Transfer of Water Rights and Diversions—
Since 1909, water rights are appurtenant to land irri-
gated except that if at any time it "should become im-
practicable to beneficially or economically use water
for the irrigation of any land to which water is ap-
purtenant, said rights may be severed from said land,
and simultaneously transferred, and become appurtenant
to other land" (Ore. Laws 1909, c. 216 §65), and the
transfer will not be detrimental to existing rights.
The Oregon Supreme Court later reaffirmed the statu-
tory provision in holding that "permits for both
ground and surface water may be transferred separately
from the land to which they are appurtenant" (Haney v.
Neace-Stark Co.. 109 Ore. 93, 216 P. 759, 1923). Be-
fore the water right may be changed, however, the
change must comply with the provisions of the water
code. When the owner has complied, he may change the
place of use, point of diversion or nature of his use
without losing the priority of right (O.R.S. § 540.510.
Compliance consists of making application to the Water
Resources Director for a change. This application
must state the name of the owner, the nature of the
right, and the nature and extent of the prior use, a
description of the use proposed and the reasons for
proposing the change {O.R.S. § 540.520). Opportunity
for those who wish to object along with a public hear-
ing is provided. If the Water Resources Director
finds that the proposed change can be made without in-
jury to existing rights, an order approving the change
and fixing a time limit within which the change must
be accomplished is issued (Vandehey v. Wheeler, 507 P.
2d 831, 1973).
Permits for both around and surface water may be as-
signed. A person^who has not perfected a right but
has a permit to begin construction may assign it (O.R.
S. s 537.220). Unless the permit assignment is re-
corded in the Director's office it is not binding upon
anyone but the assignor and assignee. Without notice
of assignment, the Director is not bound by the assign-
ment and construction requirements remain'in effect.
There may be problems of abandoning the right if such
notice of assignment is not given.
12.2.7 Waste Water Disposal and Drainage
This section concerns the right of upper landowners to
discharge natural flows and waste or artificial waters
upon the lands of lower landowners and the correspond-
ing rights of the latter to protect their properties.
Regarding the law of drainage for natural diffused
surface waters, Oregon applied a modified civil law
rule (Clark, 1974, p. 17). This rule in its pure form
states that an upper landowner has a dominant servi-
tude to discharge diffused surface waters onto the
lands of lower landowners which flow in their natural
course upon these lower lands. This rule was adopted
by Oregon in 1919 in a modified form to allow an upper
landowner to accelerate the flow of water onto the
lower landowner's property by enlarging the ditch that
collected the diffused water and discharged it through
the natural drainages (Rehfuss v. Weeks. 93 Ore. 25,
125 P. 137, 1919). The court stated the upper land-
owner could expel waters in the direction they would
naturally flow without liability and even construct
artificial means to precipitate the movement of water
more rapidly, provided he causes waters to flow in the
natural drainage that naturally flows there and pro-
vided he acts with "prudent regard" for the interests
of others (Ibid., p. 32). The law was added to in
1958 to provide that the flow could be accelerated by
artificial means (in this case tile drains) as re-
quired by good husbandry, without liability to the low-
er landowner, so long as the water was not diverted
from its natural channels (Garbarino v. Van Cleave.
214 Ore. 554, 330 P. 2d 28, 1958).
The same rule does not apply for introduction into a
natural drainage of pollution (Adams v. Clover Hill
Farms. 86 Ore. 140, 167 P. 1015, 1917),or waters that
would not naturally flow in the drainage area (Street
y. Ringsmeyer, 108 Ore. 349, 216 P. 1017, 1923). The
former case pertained to feedlot runoff with the dif-
fused surface waters flowing onto the lands of the
plaintiff. The latter case involved the introduction
of artificially introduced waters from a manmade pro-
ject.
Nor does the modified unit rule of drainage pertain to
man-increased flows in a watercourse (Levene v. Salem.
191 Ore. 182, 229 P. 2d 255, 1951), or return flows
from a diversion of water out of a watercourse (Ste-
phens v. City of Eugene. 90 Ore. 167, 175 P. 855,
1918).
12.3 ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS
12.3.1 State Water Agencies
As was briefly discussed in the section of this report
on the historical background to Oregon water law con-
ditions, the State introduced a major reorganization
of the water agencies in mid-1975. In the preamble
of House Bill 3180, the 1975 regular session of the
Oregon Legislative Assembly stated:
that the functions of the State Engineer and
the State Water Resources Board can best be
performed by a single Water Resources Depart-
ment under the supervision of a Water Policy
Review Board and the management of a director.
The legislation continues by providing that the State
Water Resources Board is abolished and the tenure of
Board members, Director of the Board, and staff shall
cease and the duties, functions and powers of the
Board are transferred and vested in the Water Policy
Review Board (H.B. 3180, 1975, 51). The office of
State Engineer transferred to the Water Resources Di-
rector (Ibid., § 2). In all Oregon statutes refer-
ring to the previous offices, the terms for the new
organizational structures can be substituted (Ibid..
I 3). The Board and Water Resources Director shall
make up the Water Resources Department (Ibid.. 514).
The Water Resources Director, the official charged
with the administrative responsibility relating to
the distribution and control of water rights within
the State, is appointed by the Governor for a 4-year
term, subject to confirmation by the Senate (Ibid..
S 18). Either the Director or his deputy or princi-
pal assistant must be a hydraulic engineer. This
change in policy away from the rigid requirements
found in many Western states that the chief water of-
ficial be an engineer typifies the trend in some
states to inject the political realities of water
management into the administrative process.
214
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The Director is also the chief administrative officer
of the Water Resources Department and is responsible
to the Water Policy Review Board for administration of
the duties, functions and powers of the Board and
those duties, functions and powers delegated to the
Director (Ibid.). The Director is to divide the state
into water districts to facilitate proper distribution
of the state waters. These districts are to be con-
stituted "so as to secure the best protection to the
claimants to waters and the most economical supervi-
sion on the part of the state"(O.R.S. § 540.010).
These water districts are supervised by watermasters
who are both appointed by and subject to the general
supervision and control of the Director (O.R.S. 9
540.020). The duties of the waterraasters include divi-
sion and regulation of water to water users. The water-
masters have authority to shut and fasten controlling
works on ditches, pumps or pipelines. Whenever users
of water cannot agree on the distribution of such wa-
ter, they may request the watermaster to divide the
water between them (O.R.S. § 540.040).
The Water Resources Policy Board is composed of seven
members appointed by the governor and confirmed by the
senate (H.B. 3180, 1975, § 15). One member of the
Board is appointed Chairman by the Governor and anoth-
er elected Vice-chairman by the members of the Board.
The Board is charged with developing a program to car-
ry out the legislative policy, as set forth by statute
to provide coordinated and integrated multipurpose wa-
ter resource policy designed to secure the maximum
beneficial use of water (O.R.S. § 536.300 and 536.220).
The Board is also to diligently enforce laws concern-
ing cancellation, lease or discharge of excessive or
unused claims to waters.11 Those policies adopted by
the Water Policy Review Board are binding on every
state agency and public corporation (O.R.S. § 536.350
and 536.400). This means that no action is to con-
flict with the Board's policies without prior approval
of the Board having been established. Among the spe-
cific powers held by the Board is the power to with-
draw unappropriated water from the appropriation when
it is necessary to insure compliance with the state
policy or when it is in the state interest to conserve
the waters of the state (O.R.S. § 536.410).
12.3.2 Judicial Bodies
Oregon does not have special water courts.
12.3.3 Water Users and Their Organizational Structure
Individual Companies—
The preceding sections have outlined the process for
obtaining rights to water in Oregon, conditions for
exercising the rights and the administrative structure
responsible for allocation and distribution of the wa-
ter and enforcement of the laws on water. As dis-
cussed, individuals in their private capacity or orga-
nized as irrigation companies can acquire water rights
and have the right to use the water according to its
availability and under the terms of the permit. Corpo-
rations for the irrigation or drainage of land are au-
thorized under Oregon statutes 554.010 to .600.
Any number of landowners, not less than
three, may incorporate themselves for the
purpose of draining their land or furnish-
ing same with water for domestic use or
protecting same by flood control or for
any and all of such purposes in the man-
ner provided in O.R.S. § 554.020 to 554.
340 (O.R.S. § 554.010).
^This has not been done however because no author-
ity has been provided in the statutes to implement this
policy.
The Board of Directors of such a corporation are set
forth in O.R.S. § 554.110, which states that,
The board of directors shall have full pow-
er and authority to:
(1) Build, construct and complete any works
and improvements needed to carry out the
plan of improvement of the lands described
in the articles of incorporation.
(2) In the names of the corporation, make
all necessary water filings and appropria-
tions of water for every purpose of the
articles of incorporation.
(3) Operate and maintain such works as are
necessary, convenient or beneficial for
said purposes.
(4) Hire men and teams and purchase machin-
ery, equipment and supplies.
(5) Generally contract with reference to
any of said matters as the board may deter-
mine for the purposes and within the scope
of the powers granted in O.R.S. § 554.010
to 554.340 for improving the land.
Associated with the right to use the water, however,
is the corresponding duty not to commit waste or dam-
age another's property. In Jones v. Warmsprings
Irrlgation District (91 P. 2d 542) the court held that
an appropriator acquires a right to use his appropria-
tion for a particular purpose and when this appropria-
tion is not needed the next person in priority of ti-
tle is entitled to it. In addition, an Oregon court
held in late 1975 that a landowner is responsible for
his water right, and where the right holder failed to
inform a real estate broker that a part of the right
had not been used for five years, thus reduced under
the Oregon forfeiture statute, he was liable for fraud
and the purchaser was entitled to damages (Bausch v.
Meyers. Ore. App., 541 P. 2d 817, 1975).
Districts-
Districts are corporations with a public purpose; and
while subdivisions of the state they differ from coun-
ties in that they function for profit and are organ-
ized for business purposes, not for a governmental
purpose. Irrigation districts are organized under
Oregon statutes 545.002 to .628.
Whenever 50 or a majority of owners of irrigated land
desire to construct irrigation works they may propose
the organization of an irrigation district by signing
a petition and presenting it to the county court in
which the land is situated (O.R.S. § 545.004).
Powers and duties of the board of directors of irriga-
tion districts include the power to manage and conduct
the business affairs of the district, make and execute
contracts, and establish rules and regulations (O.R.S.
5544.064). Any water acquired by the district must be
distributed and apportioned in accordance with the
provisions of the Irrigation District Act (O.R.S. §
544.064, 47). Section 545.088 states that:
The use of all water required for the irri-
gation of the lands of any district formed
under the provisions of the Irrigation Dis-
trict Act, together with all water rights
and rights to appropriate water, rights of
way for canals and ditches, sites for re-
servoirs, and all other property required
in fully carrying out the provisions of
the Irrigation District Act, is declared
to be a public use more necessary and
more beneficial than any other use, either
public or private, to which the water,
lands or other property have been or may
be appropriated within the district.
215
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The board can fix rates of tolls and charges, for ir-
rigation and other public uses, for the purposes of
defraying expenses (O.R.S. 5 545.108).
In Smith v. Enterprise Irrigation District (85 P. 2d
1021, 160 Ore. 372, 1939} the court held that an irri-
gation district acts as a trustee for the constituent
landowners who occupy the position of a "cestius que
trustent."
Where the United States became a common carrier of wa-
ter it thereby incurred the duty to use reasonable
care in effecting delivery to landowners (Ore v.
United States, 93 F. Supp. 779). Furthermore if the
United States failed to deliver contracted water the
landowners could sue under the Tort Claims Act (Ibid.).
Water Improvements Districts are organized under Ore-
gon statutes 552.013 to .992 and are created for the
purpose of acquiring, purchasing, constructing, im-
proving, operating, and maintaining drainage, irriga-
tion and flood and surface water control works to
prevent damage to property and improve agricultural
uses of land and waters (O.R.S. 5 552.108).
Water Control Districts organized under Oregon Stat-
utes 553.010 to .850 are created to acquire and main-
tain drainage irrigation and flood surface control
works to prevent damage by floods and improve agricul-
tural lands (O.R.S. 5 553.020). A water control dis-
trict constitutes a governmental subdivision of the
state exercising public power. A water control dis-
trict may acquire by condemnation real and personal
property and appropriate and acquire water rights for
irrigation purposes (O.R.S. 5 553.020, 4 and 8).
•Creation of a subdistrict requires a petition (O.R.S.
I 553.310) by the owners of more than 50% of the acre-
age located within a district.
To organize a drainage district, a petition must be
filed in the office of the county clerk of the county
in which the lands are situated (O.R.S. I 547.015).
The petition must set forth the boundary lines of the
district or describe the lands to be included with
an allegation that such lands constitute a contiguous
body of swamp, wet or overflowed lands.
The district may irrigate lands when it appears neces-
sary, proper, or beneficial (O.R.S. 5 547.320). The
district possesses the power to condemn property under
§ 552.310.
12.4 POLLUTION CONTROL
Oregon has created an Environmental Quality Commission
of five members appointed by the Governor and con-
firmed by the Senate (O.R.S. % 449.016). The Commis-
sion is empowered, after appropriate public notices
and hearings, to establish policies and standards for
statewide water quality (O.R.S. § 468.020). The
Commission, however, lacks strong enforcement author-
ity. A waste discharge permit system prohibits dis-
charge into the waters of the state without first ob-
taining a permit from the Environmental Quality Com-
mission (O.R.S. § 449.083). The only enforcement pro-
visions given the Commission are administrative hear-
ings and suits to enjoin and abate water pollution
(O.R.S. S 449.100 and 449.103).
The administrative functioning of the act is delegated
to the Department of Environmental Quality. As such
the department is directed to (1) encourage voluntary
cooperation in restoring and preserving the quality
and purity of the waters of the state; (2) conduct
studies and investigations pertaining to water quality,
and (3) advise, consult, and cooperate with other
agencies of the state, the Federal Government, other
political subdivisions, and industry regarding water
pollution control (O.R.S. 5 468.035). The department
also has general authority for the enforcement of the
water pollution control laws of the state (Ibid.). The
department has been established of the executive-ad-
ministrative branch and consists of the director of
the department and the other personnel (O.R.S. §
468.030).
The Director functions as the administrative head of
the department and is custodian of the records of the
department (O.R.S. § 468.045). The Director is ap-
pointed by the commission and serves at their
pleasure (O.R.S. 5 468.040).
REFERENCES
Geraghty, J. J., D. W. Miller, F. Van der Leeden,
F. L. Traise, Water Atlas of the United States, A
Water Information Center Publication, Port Washington,
N.Y., 1973.
Clark, C. D., Survey of Oregon's Water Laws, Water
Resources Research Institute WRRI-18, Oregon State
University, Corvallis, Oregon, Mar., 1974.
216
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APPENDIX A REPORT 13
SOUTH DAKOTA
13.1 HISTORICAL BACKGROUND
South Dakota is an arid state of 77,047 square miles,
receiving an annual precipitation of 19 inches. In
1965, 138,000 acres were irrigated, of which 35,000
acres received water from sprinklers. Over the next
nine years reported in the 1974 Irrigation Survey
(Irrigation Journal. Vol. 24, No. 6, Nov./Dec. 1974),
some very erratic changes took place. In just three
years, by 1968, the irrigated acreage increased to
414,000 acres, with that irrigated by sprinklers in-
creasing to 40,000 acres in 1966, 124,000 acres in
1967, and 136,000 acres in 1968. From 1970 to 1974
the total irrigated acreage decreased to 210,000
acres in 1970, to 202,000 acres in 1974, with a slight
rally in 1972 and 1973. In spite of the decline of
sprinkler irrigation in 1970 to 75,000 acres, the use
of the method of irrigation increased steadily to 1974
reaching 162,000 acres. It is obvious from these fig-
ures that water use efficiency is of great concern to
the agricultural water users in South Dakota.
By an enactment in 1866, the Territorial Legislature
recognized the private ownership of diffused surface
waters and the "natural flow theory " of riparian
rights for surface watercourses (Terr. Dak. Laws 1855-
66 Civil Code, §256, 1866). A Land Code was enacted
in 1877 which specifically recognized a riparian
system:
The owner of land owns water standing thereon,
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 commences its definite
course, nor pursue nor pollute the same
(Rev. Code of 1877, Cov. Code 255).
Ten years later, the Territorial Legislature enacted
its first appropriation statute, which provided that:
Any person or persons, corporation or com-
pany, who may have or hold a title to any
mineral or agricultural lands within the
limits of this territory, shall be entitled
to the usual enjoyment of the waters of
the stream or creeks in said territory for
mining, agricultural or domestic 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 com-
plied with in doing the necessary work
(Dak. Comp. Laws, §2029, 1887).
This Act allowed an appropriator to locate and con-
struct ditches, canals and other structures through
and over any tract of land (I.D. at §2030, 2031, 1887).
In 1907, a law was enacted which declared all waters
of the state to be public waters subject to appropri-
ation for beneficial use (S.D. Laws 1907, c. 180).
This statute was held to be unconstitutional as it
infringed upon vested rights to use water for domestic
and irrigation purposes (St. Germain Irr. Ditch Co. v.
Hawthorne Ditch Co., 32 S.D. i>60, 143 N.W. 124, 1913).
The Supreme Court had previously held that riparian
rights could exist only on the basis of reasonable
use, thus rejecting the concept of natural flow
(Redwater Land and Canal Co. v. Reed, 26 S.D. 466,
128 N.W. 600, 1910).
In 1924, the Supreme Court of South Dakota had occa-
sion to consider the effects of the Desert Land Act
of 1877 on riparian rights associated with land in
the United States public domain (in Cook v. Evans. 45
S.D. 31, 185 N.W. 262, 1924). Claimants had asserted
claims as appropriators and as riparians. Use had
been prior to Feb. 28, 1877, the date the lands had
become public domain. The court held that no riparian
rights could be acquired before the above date but .
could have attached after that date and before March
3, 1877 (the date the Desert Land Act had come into
effect). The court went on to hold that the effect
of the Desert Land Act severed water from the land
in the public domain except for the use of water for
domestic purposes. All water on the land in the pub-
lic domain was dedicated to appropriation for irriga-
tion, mining and manufacturing purposes. Thus, after
1877 federal patents did not carry riparian rights
except for domestic purposes. The court felt that
appropriation rights were superior to all riparian
claims if the appropriation rights were perfected
before the running of the prescriptive period.
The Supreme Court of South Dakota made a surprising
switch in 1940 back to riparian rights in Platt v.
Rapid City (67 S.D. 245, 291 N.W. 600, 1940). The
Court rejected the Cook case and reviewed with approv-
al earlier cases which had upheld a riparian system.
Implementation of an appropriation system was
attempted again in 1955 (S.D. Comp. Laws Ann., 1960
Supp. 61.0101-61.0159). Care was taken this time to
preserve and validate riparian rights in actual use.
The Act declared that all water within the state is
the property of the people, and the right to the use
of water may be acquired by appropriation (S.D.L.
§46-1-3, 1967). All vested rights which were acquired
before March 2, 1955 (the effective date of the Act)
were validated (S.D.L. §46-1-10).
The constitutionality of this Act was upheld in 1964
and 1970 in Knight v. Grimes (80 S.D. 517, 127 N.W.
2d 708, 1965) and Belle Fourche Irrigation District v>
Smiley (84 S.D. 701. 176 N.W. 2d 239. 1970). Knight
was a case which involved a prior right to percolat-
ing waters and the legal implications of voiding
unused water rights. The court upheld the 1955 Act
as related to the dedication of all waters of the
state to the public. Justification for the invasion
of pre-existing rights was based on the proposition
that South Dakota had never actually recognized an
absolute ownership of percolating waters but had
taken cognizance of a right of use. The Act was held
to be a proper exercise of the police power in that
it conserved and protected unused water resources.
Vested rights were established when the permits were
issued. Therefore, under the water code of 1955,
the only way to obtain an appropriation right is to
receive a permit issued by the State Water Resources
Commission.
The Supreme Court of South Dakota had occasion again
in 1970 to uphold the validity of the 1955 Act. The
court held that when an application is filed for a
permit for the use of unappropriated waters, the
Water Resources Commission, as a prerequisite, must
217
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make a determination of the existence of vested rights
which have been preserved by this statute. The court
later stated that the rights of a riparian who owned
land prior to March 2, 1955, to water for purpose of
irrigation, or any other use except domestic use, be-
came vested in him only to a beneficial use prior to
March 2, 1955; after that date, he could acquire irri-
gation rights only by appropriation and such rights were
subject to prior appropriations (Belle Forehe Irr.
Dist. v. Smiley. 204 N.H. 2d 105, 1973).
In South Dakota, spring waters are controlled by appro-
priation laws and landowners may appropriate water
from springs through the permit system (S.D.L. §46-5-
3). The fact of riparian ownership does not allow the
owner of such a right to prevent the flow nor pollute
the waters (S.D.L.§46-5-1). In Benson v. Cook (47 S.D.
611, 201 N.W. 526, 1924), the Supreme Court of South
Dakota enjoined the construction of a ditch taking the
flow of subterranean waters supplying a natural spring
which had in turn contributed to a definite stream.
Comprehensive ground water legislation was enacted in
1955 (S.L., 1955, ch. 413, §1). The legislation ex-
tended public ownership to ground water which included
underground streams, artesian basins and percolating
waters (S.D.L. §46-1-1 to 23).
13.2 SUBSTANTIVE LAW
13.2.1 Property Right in Water
In South Dakota, the riparian rights doctrine is the
historical basis of use. But, since 1955 all new uses
must be appropriative. The appropriative right is a
usufructuary right and the basis is beneficial use
•(S.D.L. §46-1-18).
Water flowing in a natural stream is not subject to
private ownership. Any private rights that do attach
are strictly usufructuary rights to take the water
and apply it to a beneficial use. In a certain sense,
the water which flows in a stream belongs to the public
and is subject to private rights of use by appropria-
tors (St. Germain Irrigating Ditch Co. v. Hawthorne
Ditch Co.. 32 S.D. 260. 142 N.W. 124. 1913).
The general rule«is that the one who diverts water
from a natural stream and beneficially uses such water
becomes the owner of the particles of such water. In
Robbins v. Rapid City (71 S.D. 171, 23 N.W. 2d 144,
1946), the South Dakota Supreme Court held that when
water has been impounded and reduced to possession, it
is personal property and when separated from its source
it may be bought and sold like other commodities.
In 1913, the Supreme Court of South Dakota stated that
water which flowed in a natural stream belonged to the
public, but the right to its use is a subject of pri-
vate property and ownership by riparian owners or
others who had lawfully appropriated and each rightful
user and appropriator may acquire no more than his
fair and equitable share (St. Germain Irrigating Ditch
Co. v. Hawthorne Ditch Co.. 32 S.D. 260, 143 N.W.
124, 1913).
In 1955, the South Dakota Legislature passed the fol-
lowing statute which declares all waters within the
state to be the property of the people:
It is hereby declared that all water within
the state is the property of the people of
the state, but the right to the use of water
may be acquired by appropriation in the man-
ner provided by law (S.D.L. S46-1-3).
In regard to natural springs arising on one's land,
the Supreme Court of South Dakota stated in 1895
that:
while it may not be technically correct to
say that the landowner is the absolute owner
of percolating waters gathered into a spring
or well, the landowner's right is practic-
ally equivalent to ownership, the exclusive
right to use and dispose of such waters
(Hetcalf v. Nelson. 8 S.D. 87, 65 N.W. 911,
18957!
Now, South Dakota legislation allows the owner of
land on which a natural spring arises and which con-
stitutes the source or part of the water supply of a
definite stream to appropriate the flow from such
spring (S.D.L. §46-5-3).
Since the appropriation doctrine was adopted exclu-
sively in 1955, protection of vested rights was
spelled out to ensure the constitutionality of the
statutes of 1955. A vested right is defined as:
(1) the right of a riparian owner to continue the use
of water having actually been applied to any benefi-
cial use on March 2, 1955, or within three years
immediately prior thereto to the extent of the exist-
ing beneficial use made thereof; (2) use for domestic
purposes; (3) the right to take and use water for
beneficial purposes where a riparian owner was engaged
in the construction of works for the actual applica-
tion of water to a beneficial use on March 2, 1955,
provided such works shall be completed and water is
actually applied for such use within a reasonable
time thereafter; (4) rights granted before July 1,
1955 by court decree; and (5) uses of water under
diversions and applications of water prior to the
passage of the 1907 water law and not subsequently
abandoned or forfeited (S.D.L. §46-1-9).
13.2.2 Acquisition of Right
Since 1955, the exclusive method of acquiring an
appropriative right is through compliance with statu-
tory law. Applications for permits to divert unappro-
priated water must be made to the Water Rights
Commission. Each applicant is given a specific time
to construct the project and to place the water to a
beneficial use (S.D.L. §46-5-21). A certificate of
completion is issued upon completion of a project
(S.D.L. §46-5-28 and 29). When the water is applied
to a beneficial use, a license will be issued (S.D.L.
546-5-30).
Broad discretion is placed in the hands of the Water
Rights Commission to grant or reject an application
for a permit. Rejection can come if there is no
unappropriated waters available or if approval of
the application would be injurious to the public
interest (S.D.L. §46-5-28 and 21).
Furthermore, South Dakota statutes provide that a
land owner may neither pollute nor prevent the nat-
ural flow (1) of a stream, (2) of a natural spring
from which it commenses its definite course, or
(3) of a natural spring arising on his land which
flows into and constitutes a part of the water supply
of a natural stream (S.D.L. §46-5-30).
Priority of the right is the date the application was
filed (S.D.L. §46-5-7). As between appropriators,
the first in time is the first in right. The prior-
ity of the appropriation dates from the time of filing
of the application in the office of the Water Rights
Commission (S.D.L. §46-5-7).
218
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As previously stated (Belle Fourche Irr. Dlst. v.
Smiley. 204 N.W. 2d 105, 1973), the rights of a ripar-
ian who owned land before March 3, 1955, to water for
the purpose of irrigation is vested only if he had
applied the water to a beneficial use prior to that
date. After this date, irrigation rights could only
be acquired by appropriation. In Lone Tree Ditch Co.
(5 S.D. 519, 91 N.W. 352, 1902), the court stated that
the riparian right of an owner to use waters for irri-
gation is subject to the priority of all riparian
owners to use such waters for domestic purposes or
for watering stock as the use or extraordinary use as
opposed to a natural or ordinary use.
The Supreme Court stated in 1910 that riparian rights
are appurtenant to the land. These rights are classi-
fied into two divisions; first, the natural or ordinary
use which includes the use of water for domestic pur-
poses and for watering stock, and second, the extra-
ordinary or artificial purpose which includes irriga-
tion, manufacturing and mining. The upper riparian
owner is given preference over the lower riparian
owner as to ordinary uses in that he may use all of
the water of the stream to the exclusion of the lower
owners. If the lower owner's use is ordinary, then
he has a preference over the rights of any riparian
owner who is using the water for an artificial pur-
pose. Between riparian owners who are both using the
water for an artificial use, there is no priority in
point of time of settlement or from a geographical
location of the land (Ibid.)
Ground Water—
Three-fourths of the water used in South Dakota comes
from underground sources (Kerr and Tipton, S.D. Ground-
water Supplies"). In 1955, public ownership was
extended to ground water which included underground
streams, artesian basins and percolating waters
(S.D.L. §46-1-1 to 23). Diversion and application of
ground water to a beneficial use, if effected before
February 28, 1955, is considered a vested right.
Any person with the intent to divert ground water is
required to notify the commission. Users engaged in
the construction of works on February 28, 1955, are
entitled to finish construction and apply the water
to a beneficial use. If the works were completed
within a reasonable time, then the right is vested.
South Dakota has no laws specifically dealing with
the prerequisite of appropriating artesian waters nor
for protecting the means of delivery. However, the
policy of South Dakota Water Rights Commission is to
protect the means of delivery, regardless of the
reasonableness, and prior appropriators who have and
continue to use artesian pressure. The effect is
to protect all senior appropriators who utilize arte-
sian pressure as a mode of delivery.
Prescriptive Water Rights—
South Dakota statutes do not deal with the acquisition
of water rights by prescription. In Cook v. Evans
(45 S.D. 31, 185, N.W. 262, 1924), the South Dakota
Supreme Court felt that certain riparian claims could
be acquired by prescriptive use but such rights would
be inferior to appropriatjve rights if the appropria-
tive right was perfected before the running of the
prescriptive period.
Preferences—
The term preference, when used in a water use context,
can mean several things. A preference when exercised
in times of shortages means that the water will be
devoted to the preferred use instead of a nonpreferred
use. Preferences can also come into play when water
is insufficient for all proposed uses and applicants
compete for permits. Application of the preference
statute would dictate that the proposed preferred use
would prevail regardless of the priority of the filing
date (Trelease, 1955).
South Dakota's preference statute provides that:
the use of water for domestic purposes is
the highest use of water and takes prece-
dence over all appropriative rights, if
such use is exercised in a manner consis-
tent with public interest (S.D.L. §46-1-5).
12.2.3 Adjudicating Water Rights
As was previously stated,in South Dakota riparian
rights are the historical basis of some uses but all
new uses are appropriative. The resolution of water
rights is by a general adjudication and all claimants
"so far as they can be ascertained with reasonable
diligence" must be joined in any action (S.D.L.
§46-10-3). The Water Resources Commission may request
the State Attorney General to initiate adjudication
proceedings (S.D.L. §46-10-1 and 2), or may intervene
in an existing action to protect the public interest
(S.D.L. §46-10-7). Judgments are to fully define the
rights of each party in the areas of priority, nature
of use, place, point of diversion, and the quantity
of water awarded (S.D.L. §46-10-8).
The Attorney General is under the obligation to enter
an original suit on behalf of the state to determine
conflicting water rights when the Commission decides
that the public interest requires such action (S.D.L.
§46-10-1).
13.2.4 Conditions of Use
Beneficial Use—
Beneficial use is the basis, the measure and the limit
of the right to use water (S.D.L. §46-1-18). Bene-
ficial use is any use of water that is reasonable and
usufruct and beneficial to the appropriator and at
the same time is consistent with the interests of the
public in the best utilization of water supplies. It
is the policy of the state to put water resources to
a beneficial use, to the fullest extent possible
(S.D.L. §46-1-4). South Dakota statutes provide that:
In the issuance of permits to appropriate
water for irrigation, or in the adjudica-
tion of 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 seventy acres, or the
equivalent thereof, and the volume of water
diverted for use shall not exceed three
acre-feet per acre, delivered on the land
for a specified time each year (S.D.L.
§46-5-6).
In Stenger v. Tharp (17 S.D. 13, 94 N.W. 402, 1903),
the court held that the rights of a party in appropri-
ating water are limited to the amount he actually uses
for a beneficial purpose. Any water not applied to a
beneficial use would be subject to forfeiture. The
duty of water for irrigation purposes is not to be in
excess of one cubic foot per second for each 70 acres
and not to exceed three acre-feet per acre delivered
on the land for a specified period each year (S.D.L.
§46-5-5 and 46-5-6).
Waste—
Although waste water has not been specifically defined
by South Dakota courts, it can be defined as surplus
water running off of irrigated land, i.e., that water
which has neither evaporated nor soaked into the soil.
219
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Therefore, waste water is that water which results from
excessive diversions or applications and accumulates in
tailwater 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. It is
waters that are diverted under the exercise of a
valid water right. It is now lost under current prac-
tices, but might be saved through more efficient methods
of use and diversion (Hutchins, 1974, pp. 568-569).
Public policy dictates that the upper irrigator should
not be compelled by the law to continue his waste to
provide a downstream user with a supply of the waste
waters. There have been no cases in South Dakota on
this particular point of law. However, South Dakota
statutes provide that:
It is hereby declared that because of
conditions prevailing in this state, the
general welfare requires that the water re-
sources 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, and that
the conservation of such water is to be
exercised with a view to the reasonable and
beneficial use thereof in the interest of
the people and for the public welfare.
The right to water or to the use or flow of
water in or from any natural stream or water-
course in this state is and shall be limited
to such water as shall be reasonably re-
quired for the beneficial use to be served,
and such right does not and shall not
extend to the waste or unreasonable use
or unreasonable method of diversion of
water (S.D.L. §46-1-4).
The unauthorized use of water or the willful waste of
water, to the detriment of another or to the public in
general, is a misdemeanor punishable by a fine of
not less than twenty nor more than one hundred dollars
or by imprisonment in the county jail for thirty days
or less or both (S.D.L. 546-5-46). Furthermore,
appropriation in excess of the reasonable needs of
the appropriators is not allowed (S.D.L. §46-5-5).
13.2.5 Manner in Which Rights Hay Be Adversely
Affected
Forfeiture and Abandonment—
Abandoned appropriative rights are subject to statutory
forfeiture after a period of nonuse for three years.
If this occurs, water becomes unappropriated public
water (S.D.L. §46-5-37).
The statute on abandonment reads as follows:
If the owner of the land to which water
has become appurtenant abandons the use
of such water upon such land, such water
shall become public water, subject to
general appropriations (S.D.L. 46-5-36).
Abandoment requires a subjective intent to abandon
coupled with the nonuse (Cundy v. Heber, 68 S.D. 214,
300 N.W. 17, 1941). The intent not to repossess the
water right is an essential feature of abandonment
(Edgemont Improvement Co. v. N.S. Tubbs Sheep Co.,
225 D. 1427 115 O. 1130, 1908}. The Supreme Court
has held that a riparian's right to use the waters
of a flowing stream cannot be lost by nonuse. The
Court further held that the above statute is void
as to a riparian owner but valid as to one who is an
appropriator without riparian rights (St. Germain
Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S.D.
260, 143 N.W. 124, 1913).
Adverse Possession--
South Dakota does not recognize the acquisition of
water rights by adverse possession.
Condemnation--
Section 46-8-1 allows the United States, this state,
any person, or any private or public corporation to
exercise the right of eminent domain. South Dakota
statutes provide that:
In all cases where any person, group, or
corporation, public or private, including
the owners of water rights, ditches,
flumes, reservoirs, and mining property
under the provisions of the laws of Con-
gress, invested with the privilege of taking
or damaging private property for public use,
in making, constructing, repairing, or
using any work or improvement allowed by
law, shall determine to exercise such
privilege, it shall file a petition in the
circuit court of the county in which the
property to be taken or damaged is situated,
praying that the just compensation to be
made for such property may be ascertained
by a jury (S.D.L. §21-35-1).
Enforcement of Beneficial Use or Haste 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
quantity in his permit to a beneficial use, the un-
used water is subject to the provisions of the for-
feiture statute.
13.2.6 Legal Incentives and Disincentives for More
Efficient Water Use Practices
Irrigation Return Flow—
Irrigation return flows occur from the deep percola-
tion of water from overapplication to the land, seep-
age from conveyance systems, and tail water runoff.
While there have been no cases in South Dakota
regarding the appropriation of waste waters, there
is a statutory provision which states that water
turned into any natural or artificial watercourse
by a person entitled to the use of such waters may
be reclaimed below and diverted, subject to existing
rights and due allowance for losses being made (S.D.L.
§46-5-14).
Provision for Transfer of Water Rights and
Diversions--
Change in the place of use is authorized if it has
become impractical to use all or any part of the water
beneficially or economically. There is no loss of
priority if the change has the approval of the Commis-
sion. Permits may be sold, transferred and assigned
(S.D.L. §46-5-32), with one exception relating to
irrigation. Irrigation water rights cannot be
assigned or transferred unless it is in relation to
a transfer of land to which the water is attached
(S.D.L. §46-5-33 to 35).
13.2.7 Waste Hater Disposal and Drainage
Disposal of Waste Water--
The disposal of diffused surface waters in rural
areas is governed by the civil law rule. In urban
areas such disposal is governed by the reasonable
use rule.
The civil law rule places an easement on the lower
landowner for the drainage of surface water in its
220
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natural course. The natural flow cannot be obstructed
by the lower landowner to the injury of the upper land-
owner (Johnson v. Metropolitan Life Ins. Co., 71 S.D.
155, 22 N.W. 2d 737, 1946).
The reasonable use rule as previously mentioned is
applied to urban areas. Each landowner is privileged
to make a reasonable use of his land even if the flow
of surface waters is altered to the injury of another,
so long as the interference is not unreasonable
(Mulder v. Tague, 186 N.W. 2d 884, 1971).
13.3 ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS
13.3.1 State Water Agencies
The State Water Resources Commission, renamed the Water
Rights Commission (S.D.L. §46-2-1.1), decides upon
applications for permits to divert unappropriated water
and is given the task of "general supervision and dis-
tribution of the waters of the State, including the
measurement, appropriation and distribution thereof"
(S.D.L. §46-2-9). The circuit court of the county
in which the point of diversion is located hears appeals
from the Commission's decisions (S.D.L. §46-5-23). In
the event of a conflict, the Commission or district
court which has jurisdiction is authorized to appoint
a water master with the consent of the water users.
This is to insure a proper distribution among the
users. Enforcement of an adjudicated decree or a
delivery schedule is the task of the master. Appeal
from the master's decisions go first to the Commission
and from there to the circuit court.
South Dakota's Water Conservancy District law coordi-
nates water conservation practices. Its function is
to provide for efficiency in irrigation, stabilization
in the production of crops, the replenishment and re-
storation of waters, and the reservation of beneficial
use (S.D. Comp. Laws Ann., 1960 Supp. 61.1401 (2) to
(4a)). The South Dakota Water Rights Commission is
the Board of Directors of the District. The Board can
exercise eminent domain, contract and organize water
conservancy sub-districts. A petition of 25 percent
of the landowners in the proposed sub-district must
have the approval of the District Board of Directors.
The electors within the proposed district must approve
by a 60 percent or more vote. If the requisite percent-
age is obtained, the sub-district is created, named and
a copy of resolution filed with the Secretary of State.
The Board of Directors, who must be landowners within
the sub-district area, is not to exceed eleven in
number. Nomination is by petition of 50 landowners in
the area to be represented.
13.3.2 Judicial Bodies
South Dakota does not have special water courts. Cir-
cuit courts hear appeals from the Water Rights Commis-
sion decisions. District courts appoint water masters
with the consent of the water users. Water masters'
decisions may be appealed to the circuit court.
Irrigation districts (S.D.L. §46-12-1 to 89), drainage
and conservancy districts (S.D.L. §46-17-1 to 84), and
watershed districts (S.D.L. §46-24-1 to 84) are given
authorization to build water projects. Creation of
all special districts is through a petition, a public
hearing and a favorable vote of the electorate. Al-
though water users associations are not utilized in
South Dakota, there is a chapter which deals with
these associations.
Irrigation districts are corporations with a public
purpose; and while subdivisions of the state, they
differ from counties and like political units in that
they function for profit and are purely for business
without a governmental purpose.
Section 46-13-23 states that it is the duty of the
Board of Directors of ?ny district or association to
keep the water flowing through the ditches and canals
under its control to the full capacity of such ditches
and canals in times of high water and when the same
can be beneficially applied to the lands thereunder
and does not interfere with the rights of other appro-
priators. The Board of Directors also has the duty
to apportion waters equitably when there is an
insufficient supply S.D.L. 546-13-25).
Any water conservancy district has the power to exer-
cise eminent domain as set down in 21-35 after de-
claring the necessity for and purpose of the taking
of property (S.D.L. §46-16-44).
In Black Hills Power and Light Co. v. Shuft
(193 N.W. 2d 429), the_South Dakota Supreme Court
held that a grant of right to take water from a canal
imposed no duty upon the grantor to maintain the
canal or provide an alternate method of transporting
the water, in the absence of an express or implied
agreement.
In Jewett v. Redwater Irrigating Association (220
N.W. 2d 834), the court held that, where the by-laws
of an irrigation association did not expressly provide
that the water represented by shares of the association
were appurtenant to the land on which it was used,
then such water did not become appurtenant to the
land.
13.4 POLLUTION CONTROL
A water use control area requires a petition from the
requisite number of water users (S.D.L. 546-10-14).
A public hearing must be held by the Commission to
establish the feasibility of a control area and to
distribute the water supply among the holders of
record (S.D.L. §46-10-16 to 19). The state Water
Pollution Control Act creates a cornnittee on water
pollution which is composed of the State Health
Officer, the Director of the Department of Game, Fish
and Parks, Chief Engineer of the Water Rights Commis-
sion, and four electors of the state to be appointed
by the Governor (S.D.L. §46-25-1). All public waters
must be classified either Class A or Class B. Class
A waters are suitable for domestic use and are not
deleterious to fish and plant life. Navigable and
interstate waters cannot be classified under "B".
After December 31, 1973, all public waters must be
designed under Class A (S.D.L. §46-25-5).
The enforcement of water quality standards begins when
a hearing is held to establish standards of water
quality and a time is specified within which dis-
charges of waste into Class A waters are to comply
with Class A standards (S.D.L. §46-25-8 and 9).
A permit must be obtained from the Committee if new
pollutants are.discharged into Class A waters. If
the discharge does not meet Class A standards, then
the violator will be directed to discontinue the
discharge (S.D.L. §46-25-10 to 13). The Committee
may force compliance with its orders by initiating
court action. Furthermore, criminal sanctions are
provided for a violator of either the Act or of the
Committee's orders (S.D.L. 146-25-15 and 16).
The Boundary Waters Treaty of 1909 (Treaty with Great
Britain Relating to Boundary Waters Between the U.S.
and Canada, Jan. 11, 1909, 36 Stat. 2448, T.S. No.
221
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548) provides a course of environmental action for
Canadian citizens in the United States courts against
the Federal Government for polluting waters crossing
the boundary. The Treaty requires the United States
to protect the interests of Canadian citizens by not
polluting waters which cross the boundary. A work-
ing group was implemented in 1973 to develop a solu-
tion for handling return flows from irrigated lands
of the Garrison Diversion Unit. A further study in
1974 discovered increased salinity of the Souris
River, an increase in the nutrient load and increased
flood potential from irrigation return flows. The
Bureau of Reclamation proposed dilution of return
flows into the Souris River through (1) increased
releases of water from the Missouri River; (2) con-
struction of treatment plants to reduce salinity in
return flows; and (3) the collection of return flows
in a reservoir.
REFERENCES
Consolidations Involving the Use of Ground
Mater in South Dakota. Staff Memo, State Legislative
Research Council, Nov. 1, 1969.
Dewsnup, R.L. and D.W. Jensen. A Summary Digest of
State Water Laws, National Water Commission,
Arlington, Va., 1973.
Hutchins, Wells A. Water Rights Laws in the Nineteen
Western States. Vol. II, Misc. Pub. No. 1206, U.S.
Dept. of Agriculture.
. "Irrigation Survey, 1974," Irrigation Journal.
Vol. 24, No. 6, Nov./Dec., 1974.
Kerr, F. and M. Tipton, "South Dakota Groundwater
Supplies," South Dakota Cooperative Extension
Service Bulletin F..S. 201.
Trelease, Frank. "Preferences to the Use of Water,"
27 Rocky Mountain Law Review 33, 1955.
222
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APPENDIX A REPORT 14
TEXAS
14.1 HISTORICAL BACKGROUND
Texas is a state with much variation geographically
in the annual precipitation, but generally receives
an average annual precipitation of 31 inches. Accord-
ing to the 1974 Irrigation Survey, irrigated acreages
in 1965 of 7,800,000 acres have increased to a reported
8,590,000 acres in 1973, almost strictly in the area of
sprinkler irrigation (Irrigation Journal. Vol. 24, No.
26, Nov./Dec., 1974). In 1965, 1,205,000 acres were
sprinkler irrigated, increasing to 1,950,000 acres in
1973.
Texas is both an appropriation and riparian rights
state,1 Appropriation rights, however, are of
greater significance. By statute, Texas does not rec-
ognize riparian rights in the owner of lands acquired
after July 1, 1895. Controversy over the existence of
riparian rights concerned land grants of the 18th and
19th century, along with the Lower Rio Grande from
Spain and Mexico. A 1961 case held that these grants
did not carry with them appurtenant irrigation rights
(Texas v. Valmont Plantations, 346 S.W. 2d 853,
Tex. Civ. App. 1961). The court reached the conclu-
sion that there was no evidence of customary riparian
rights for irrigation in the civil law of Spain and
Mexico governing navigable streams. Irrigation rights
must, therefore, rest on specific grants from the
sovereign.
Specific grants of irrigation rights were made by
Mexico even after Texas acquired its independence in
1836. Between 1836 and 1840, the aforementioned civil
law governed the Republic of Texas. In 1840, Texas
adopted the common law system of England, which intro-
duced riparian water law. Riparian theory was the
basis of Texas law from 1845 to 1889.
The appropriation system, though limited to the arid
portions of Texas, was introduced in 1889 (The Irri-
gation Act of 1889, Tex. Gen. Laws, 1889, ch. P. 100).
This Act provided that an appropriator might obtain a
water right by diversion and application of that water
to a beneficial use. The appropriator was required
to file an affidavit and map illustrating the diver-
sion works and describing the proposed use with the
County Clerk.
Revisions were had in 1895 (Tex. Gen. Laws, 1895,
ch. 21, p. 21), which divided public waters into two
categories: "ordinary flow and underflow" and "storm
or rain waters." Riparian rights could only attach to
the first category. There was no provision for for-
feiture in the event the appropriator failed to file.
Affidavits under this provision required a showing of
the approximate number of acres to be irrigated; the
name, size, capacity, and location of the ditch;
the appropriators name and the stream from which water
was diverted. Perfection of the water right occurred
upon completion of the works and the diversion of the
water. The question of whether riparian rights were
superseded by the appropriation system remained
unanswered.
JSee Hutchins, Wells A., The Texas Law of Water
Rights, 1961, for an excellent discussion of the entire
gamut of Texas Water Law.
The first appropriation act to have statewide applica-
tion was the Burgess-Classcock Act of 1913 (Tex. Gen.
Laws, 1913, ch. 171, P. 358), which repealed earlier
acts. County Clerks were given a specified time with-
in which to file certified copies of all instruments
in their offices which related to the appropriation of
water with the Board of Water Engineers. A permit
system was introduced which superseded the County
Clerk filing procedure.
The Canales Act of 1917 (Tex. Gen. Laws, 1917, ch. 88,
P. 211) revised and expanded the Burgess-Classcock
Act. The permit system, which is still in use in
Texas, was retained. A procedural aspect for adjudi-
cating water rights was declared to be unconstitution-
al in Board of Water Engineers v. McKnight on the
ground that judicial functions were unlawfully dele-
gated to an administrative agency (111 Texas 82, 229
S.W. 301, 1921). This decision did not, however,
affect the permit system.
A 1917 constitutional amendment preserved the distinc-
tion between ordinary flow waters and storm waters
(Texas Const., Art. 16, §59.a). This distinction was
removed in 1921. Although ordinary flow waters could
now be appropriated, vested rights of riparians would
not be prejudiced. Applications to appropriate normal
flow water in Texas streams have been regularly denied
since 1948 because most rivers have been appropriated.
Texas has been forced to confront the existence of
water rights stemming from a variety of sources.
Modern water management requires a system where the
' existence of water rights, old and new, can be ascer-
tained and described with a high degree of accuracy.
Texas policy is outlined in Section 1.003:
It is the public policy of the state to
provide for the conservation and develop-
ment of the state's natural resources,
including:
(1) the control, storage, preservation, and
distribution of the state's storm and flood
waters and the waters of its rivers and
streams for irrigation, power, and other
useful purposes;
(2) the reclamation and irrigation of the
state's arid, semi-arid, and other land
needing irrigation;
(3) the reclamation and irrigation of the
state's overflowed land and other land need-
ing drainage;
(4) the conservation and development of
its forest, water and hydroelectric power; and
(5) the navigation of the state's inland and
coastal waters.
14.2 SUBSTANTIVE LAW
14.2.1 Property Right in Water
Section 5.021 provides that the water of the ordinary
flow, underflow and tides of every bay or arm of the
Gulf of Mexico, and the storm water, flood water and
rain water of every river, natural stream, canyon,
ravine, depression, and watershed in the state is the
property of the state. This statute further states
that water which is imported from any source outside
the boundaries of the state for use in the state which
is transported through the beds and banks of any
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navigable stream within the state or by utilizing any
facilities owned or operated by the state is the prop-
erty of the state (T.C.A. §5.021(a) and (b)).
As stated in South Texas Water Co. v. Bieri (247 S.W.
2d 268, Civ. App., 1952), the waters of public
streams belong to the sovereign and are held by the
sovereign in trust for the public. Water flowing
in a natural stream is not subject to private
ownership. Any rights which do attach are strictly
usufructuary rights to take water from the stream
and apply it to a beneficial use. Private rights of
ownership do not attach to the corpus of the water
so long as it remains in the stream (Haas v. Choussard,
17 Tex. 588, 1856).
The appropriative right is a usufructuary right, the
basis of which is beneficial use (T.C.A. §5.002). In
Diversion Lake Club v. Heath (126 Tex. 129, 86 S.W.
2d 441, 1935), the court held that a permit to appro-
priate water gave the appropriator no title to the
water, but merely the right to divert and use such
water that could be beneficially used. Further, "the
first in time is first in right" concept applies in
Texas (T.C.A. §5.027). A claimant must lay hold of
the quantity required for use to acquire a usufructu-
ary interest. One does not own the corpus of the
water until it enters his ditch, and the right to have
the water flow into the ditch appertains to the
ditch (Lakeside Irr. Co. v. Harkham Irr. Co.. 116
Tex. 65, 285 S.W. 593, 1926). While water is in
canals for irrigation purposes, it is real property
(Mudge v. Hughes. 212 S.W. 819, Tex. Civ. App., 1919).
The right which an appropriator acquires is a private
property right subject to ownership and disposition
by him (Clark v. Briscoe Irr. Co.. 200 S.W. 2d 674,
Tex. Civ. App., 1947).In Goodwin y. Hidalgo County.
Water Control and Improvement District No. 1 (58 S.W.
2d 1092, 1933), the court stated that a water right
constitutes real property. Such a water right, when
acquired and perfected either under the posting or
permit system, constitutes a vested interest in the
title to the use of the water thereby appropriated
(58 S.W. 2d 1092, 1933).
14.2.2 Acquisition of Right
Section 5.022 provides that the right to the use of
state water may be acquired by appropriation in the
manner andffor the purposes as provided. When the
right to use state water is lawfully acquired, it
may be taken or diverted from its natural channel.
The exclusive method for acquiring an appropriation
right is through the adherence to the procedures of the
permit system. These procedures, as stated in
Section 5.123, require:
(a) An application to appropriate unappro-
priated state water must:
(1) be in writing and sworn to;
(2) contain the name and post office
address of the applicant;
(3) identify the source of water supply;
(4) state the nature and purposes of the
proposed use and the amount of water to
be used for each purpose;
(5) state the time within which the proposed
facilities are to be comDleted;
(6) state the time within which the
proposed construction is to begin; and
(7) state the time required for the
application of water to the proposed
use.
(b) If the proposed use is irrigation,
the application must also contain:
(1) a description of the land proposed
to be irrigated; and
(2) an estimate of the total acreage to
be irrigated.
(c) If the application is for a seasonal
permit, under the provisions of Section
5.136 of this code, the application must
also state the months or seasons of the
year the water is to be used.
(d) If the application is for a temporary
permit, under the provisions of Section
5.137 of this code, the application must
also state the period of the proposed temp-
orary use.
Section 5.124 provides further that:
(a) The application must be accompanied by
a map or plat drawn on tracing linen, on a
scale not less than one inch equals 2,000
feet.
(b) The map or plat must show substantially:
(1) the location and extent of the proposed
facilities;
(2) the location of the headgate, intake,
pumping plant, or point of diversion by
course and distance from permanent natural
objects or landmarks;
(3) location of the main ditch or canal
and the locations of the laterals or
branches of the main ditch or canal;
(4) the course of the water supply;
(5) the position, water!ine, and area of
all lakes, reservoirs, or basins intended
to be used or created;
(6) the point of intersection of the
proposed facilities with any other ditch,
canal, lateral,, lake, or reservoir; and
(7) the location of any ditch, canal,
lateral, reservoir, lake, dam, or other
similar facility already existing in the
area, drawn in a different colored ink than
that used to represent the proposed facili-
ties, and the name of the owner of the
existing facility.
(c) The map or plat must also contain:
(1) the name of the proposed facility or
enterprise;
(2) the name of the applicant; and
(3) a certificate of the surveyor, giving the
date of his survey, his name and post office
address, and the date of the application
which the certificate accompanies.
When an appropriator has used water for three years
under the terms of a certified filing or a permit, he
acquires" a title to his appropriation which limits
other claimants, including riparian users (T.C.A. §
5.029). The appropriator is entitled to a continuing
right to the use of such waters that have been appro-
priated, but not beyond that reasonably required and
actually used (Arizona v. California, 56 S. Ct. 848,
298 U.S. 558). Specifically stated in the statutes:
A right to use state water under a permit
or a certified filing is limited not only
to the amount specifically appropriated,
but also to the amount which is being or
can be beneficially used for the purposes
specified in the appropriation, and all
water not so used is considered not
appropriated (T.C.A. §5.025).
Ground Water--
Ground water in Texas is considered to be percolating
water and is privately owned by the landowner (City
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of Corpus Christi v. City of Pleasanton, 154 Tex. 289,
276 S.W. 2d 798, 1955). Therefore a landowner can
take all percolating waters that can be beneficially
used and is entitled to use it on or off the land
from which it is withdrawn. The landowner can sell
the water and it can be taken outside the basin where
it is produced.
In Houston and T.C.R.R. v. East (98 Tex. 146, 81
S.W. 279, 1904), the Texas Supreme Court adopted a
rule applicable to rights in the percolating waters
in litigation and refused to apply any principle from
the law of running streams thereto.
Absent evidence that ground waters move in underground
streams with defined channels, it is presumed to be
ordinary percolating waters and the exclusive property
of the owner of the surface of the land, and subject
to barter, sale or lease as any other species of
property (Texas Co. v. Burkett, 117 Tex 16, 296 S.W.
273, 1927)":
Prescriptive Water Rights—
To constitute adverse possession sufficient to deprive
an owner of legal title to his property by an adverse
claimant, such possession must be continuous and un-
interrupted for the statutory period and it must be
actual, notorious, distinct, and hostile, and of such
character as to indicate unmistakably an assertion of
claim of exclusive ownership in the occupant (Heard
v. State of Texas, 146 Tex. 139, 204 S.W. 2d 3S4TT947;
andjtotl v. Boyd, 116 Tex. 82, 286 S.W. 458, 1926).
Preferences--
A system of preferences is established when uses con-
flict. First priority goes to domestic and municipal
uses, followed by industrial uses, irrigation, mining,
hydroelectric power, navigation, recreation and
pleasure, and other beneficial uses (T.C.A. §5.024). -
14.2.3 Adjudicating Water Rights
Water rights in any stream may be adjudicated on
motion by the Texas Water Rights Commission; on peti-
tion to the Commission signed by ten or more claimants
of water rights from the source of supply; or on
petition of the Texas Water Development Board (T.C.A.
§5.304). "Adjudicated water rights" means those adju-
dicated in judicial (and administrative) proceedings
(State v. Hidalge County Water Control and Improvement
Dist. No. 18. Civ. App. 1969. 443 S.W. U I2V):
(a) Promptly after a petition is filed under
Section 5.304 of this code, the Commission
shall investigate the facts and conditions
necessary to determine whether the adjudica-
tion would be in the public interest. If
the Commission finds that an adjudication
would be in the public interest, it shall
enter an order to that effect, designating
the stream or segment to be adjudicated and
directing an investigation to be made of the
area involved in order to gather relevant
data and information essential to the pro-
per understanding of the claims of water rights
involved. The results of the investigation
shall be reduced by writing and made a matter
of record in the Commission's office.
(b) In connection with the investigation, the
Commission shall make a map or plat showing
with substantial accuracy the course of the
stream or segment and the location of reser-
voirs, diversion works, and places of use,
including lands which are being irrigated
or have facilities for irrigation (T.C.A.
§5.305).
The Water Rights Adjudication Act (T.C.A. §5.301-5.341)
permits the adjudication of all water rights outstand-
ing on a stream or segment of a stream. The Act also
provides for a system of recording claims of water
rights. The Act covers riparian water rights, claims
under the Irrigation Acts of 1889 and 1895 which were
not previously filed, special claims under Section
5.151 to impound, divert, or use water for other
than livestock or domestic purposes, and other claims
of water rights other than claims under certified
filings or permits.
Also, under the Act each claimant must file a state-
ment with the Commission before Sept. 1, 1969, which
shows the location and the nature of the water right,
the stream from which such right is claimed, the date
of the commencement of the works, dates, volumes of
use, and other pertinent information (T.C.A. §5.303).
14.2.4 Conditions of Use
Beneficial Use—
Beneficial use is the basis, the measure, and the
limit of the right to use water. In Texas Water
Rights Commission v. Wright (464 S.W. Zd 642, Sup.
I97iy, the court considered the beneficial use con-
cept. Beneficial use of waters is the conservation
of the resource. The nonuse of appropriated waters
is the equivalent to waste. Therefore, inherently
attached to a permit to appropriate waters is the
duty that the appropriator will beneficially use the
water.
The court in Texas Water Rights Commission (supra)
further held that water permits owners are not
vested with a right to nonuse for an indefinite time
and although a matured appropriation right to water
is a vested right, that right is limited to benefi-
cial and nonwasteful uses.
Beneficial use is defined as the right to the amount
of water which is economically necessary for a pur-
pose authorized when reasonable intelligence and
reasonable diligence dictate such use (T.C.A. §5.002).
Section 5.023 lists the purposes for which water may
be appropriated. It further states that water may be
stored or diverted for other beneficial uses.
Finally, Section 5.081 provides that:
(a) No person may willfully take, divert,
or appropriate any state water for any
purpose without first complying with all
applicable requirements of this chapter.
(b) A person who violates any provision of
this section is guilty of a misdemeanor and
upon conviction is punishable by a fine of
not more than $100, or by confinement in
the county jail for not more than six months
or by both.
(c) A person commits a separate offense each
day he continues to take, divert, or appro-
priate water in violation of this section.
(d) Possession of state water when the right
to its use has not been acquired according to
the provisions of this chapter is prima facie
evidence of a violation of this section.
Enforcement measures are provided for in Section 5.082:
(a) A person who fillfully takes, diverts,
or appropriates state water without comply-
ing with the applicable requirements of this
chapter is also liable to a penalty not to
exceed $100 per day for each day he continues
the taking, diversion, or appropriation.
225
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(b) The state may recover the penalties pre-
scribed in Subsection (a) of this section by
suit brought for that purpose in a court of
competent jurisdiction.
(c) An action to collect the penalty provided
in this section must be brought within one
year from the date of the alleged violation.
Waste—
The waste of water is the opposite of using the water
beneficially.
A person who owns or has a possessory right
to land contiguous to a canal or irrigation
system and who acquires the right by contract
to use the water from it commits waste if he:
(1) permits the excessive or wasteful use of
water by any of his agents or employees; or
(2) permits the water to be applied to any-
thing but a beneficial use (T.C.A. §5.092).
The above statute is given enforcement authority by
the provision of Section 5.093 which states:
(a) A person who permits an unreasonable
loss of water through faulty design or
negligent operation of any waterworks
using water for a purpose named in this
chapter commits waste; and the Commission
may declare the works to be a public
nuisance. The Commission may take the
necessary action to abate the nuisance.
Also, any person who may be injured by the
waste may sue in the district court having
jurisdiction over the works causing the
waste to have the operation of the works
abated as a public nuisance.
(b) In case of a wasteful use of water
prohibited by Section 5.092 of this code,
the Commission shall declare the use to
be a public nuisance and shall act to
abate the nuisance by directing the person
supplying the water and to keep them closed
until the Commission determines that the
unlawful use of water is corrected.
Further enforcement authority is included in Section
5.095. This statute provides that a person who will-
fully or knowingly commits waste is guilty of a misde-
meanor and.upon conviction is punishable by a fine of
not more tnan $500 or by confinement in the county
jail for not more than 90 days or by both.
The language in Texas Water Rights Commission v.
Wright (464 S.W. 2d 642) is of particular importance.
The court stated that a workable system to regulate
the appropriation of waters has produced the rule that
the beneficial use of waters is the conservation of that
resource. Inherently attached to a permit to appropri-
ate waters is the duty to use the water beneficially.
Water permit owners are not vested with the right of
nonuse for an indefinite period of time. At all
times the state has certain rights as the owner of the
water. Furthermore, the court stated that, although
an appropriation right to water is a vested right, the
right is limited to beneficial and nonwasteful uses.
14.2.5 Manner in Which Water Rights May Be
Adversely Affected"
Abandonment and Forfeiture—
Grounds for revocation of a permit is nonuse for ten
consecutive years. This raises a presumption of
abandonment. The Water Rights Commission has inaug-
urated a vigorous cancellation program to achieve an
optimum utilization of the state's water resources.
In Texas Mater Rights Commission v. Wright (464 S.W.
2d 64Z, Sup. 1971), the Texas Supreme Court upheld the
constitutionality of the forfeiture statute on the
grounds that, even though water rights can be consid-
ered a "vested" property interest, no one has a vested
right to nonuse. The court construed this statute as
creating a conclusive presumption of abandonment after
a period of ten years of nonuse.
Section 5.173 provides that, if no part of the water
authorized to be appropriated under a permit or certi-
fied filing has been put to beneficial use at any time
during the ten-year period immediately preceding, then
the appropriation is presumed to have been willfully
abandoned, and the permit or certified filing is sub-
ject to cancellation. Another statutory provision
states:
If any lawful appropriation or use of state
water is willfully abandoned during any
three successive years, the right to use
the water is forfeited and the water is
again subject to appropriation (T.C.A.
55.030).
Riparian water rights may be lost by prescription
(Martin v. Burr, 111 Tex. 57, 228, S.W. 543, 1921),
estoppel, and the use of water on nonriparian land
(Watkins Land Co. v. Clements, 98 Tex. 597, 86 S.W.
733, 1905). Such riparian rights cannot, however, be
lost by abandonment.
Adverse Possession--
The actual use of water as an element of the prescrip-
tive water right is analogous to the requirement that
adverse possession of land includes an actual, dis-
tinct, and visible appropriation of the land (Heard v.
State of Texas. 146 Tex. 139, 204 S.W. 2d 344, 1947).
The use of water must be open, visible and notorious
in order to put all upon inquiry as to the right
claimed by the adverse user (Kountz v. Carpenter, 206
S.W. 109, Tex. Civ. App., 1918^
Condemnation—
Texas, like the other western states, has adopted
provisions which recognize the need to provide water
for domestic and municipal purposes above and beyond
the conventional appropriation methods. It enables
all political subdivisions of the state and consti-
tutional governmental agencies to exercise the power
of eminent domain to acquire water for domestic,
municipal, manufacturing, irrigation, and other pur-
poses authorized by the water code (T.C.A. §5.033).
Enforcement of Beneficial Use or Waste Concepts—
An appropriator is limited to that quantity of~water
specified in his permit which he can beneficially use.
Any water not so used is subject to the provisions of
the forfeiture statute, or is considered not appropri-
ated. Therefore, the right one obtains by a permit for
appropriated water is limited to beneficial and non-
wasteful uses (T.C.A. §5.025).
14.2.6 legal Incentives and Disincentives for More
legal Incentives and Disincen
Efficient Water Use Practices
Irrigation Return Flow—
A downstream senior appropriator is entitled to have
the stream flow in a sufficient quantity to satisfy
the existing appropriation. Therefore, an upstream
junior appropriator cannot use water if that use would
deprive the downstream senior of the appropriated
quantity.
226
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In Harrell v. Vahlsing (248 S.W. 2d 762), the Court of
Civil Appeals of Texas held that all persons, or agen-
cies, or districts, with the possible exception of the
State of Texas, possessed a usufructuary right in
the waters of its own drainage ditch. Texas courts
have held that waters entering into and flowing
through the drainage ditches are developed or captured
waters. The Board of Water Engineers would, therefore,
have authority to issue permits controlling their use.
Having the usufruct of the drainage waters, the owner
may sell the water unless such a sale would be con-
trary to public policy. If, after using the water,
the appropriator does nothing to recapture the excess
before it leaves the appropriator's land or project,
the appropriator has no right to the escaped water.
A 1918 case (Kounty v. Carpenter. 206 S.W. 109, Civ.
App. 1918) held that plaintiffs' use of excess water
which ran through defendant's ditch did not destroy
the defendant's prescriptive title to such water.
Texas has no statute referring to the right to appro-
priate seepage waters from constructed works.
A person who takes or diverts water from a running
stream for the purpose authorized by this code is
required to return surplus water to the stream from
which it was taken if the water can be returned by
gravity flow and if it is reasonably practicable to
do so {T.C.A. §5.046).
Section 5.046 requires an appropriator to return
surplus water back to the stream from which it was
taken if the water can be returned by gravity flow
and if it is reasonably practicable to do so, thus
it appears that a downstream user having relied upon
this return flow could by appropriating this water
and applying it to a beneficial use rely upon the
protection of the law. There is no statute in Texas
allowing an appropriator to reclaim used water. It '
should be noted, however, that salvaged waters are
not considered public waters and, therefore, are
not subject to an acquisition by appropriation.
Salvaged and Developed Waters--
A downstream senior appropriator is entitled to his
appropriation even if this would deprive an upstream
junior of appropriated water. This is the case even
if the junior appropriator could derive more economic
benefit from the use of the water. Where a person by
his own efforts has increased the flow of water in a
natural stream, he is entitled to the use of the
water to the extent of the increase (Harrell v.
Vahlsing Inc., 248 S.W. 2d 762, Tex. Civ. App. 1952).
Provisions for Transfer of Water Rights and
Diversions--
Section 5.040 provides that a permanent water right is
an easement and passes with the title to land. The
Rules and Regulations of the Texas Water Rights
Commission provide rules governing the transfer of
water rights:
When water rights are transferred there
shall be recorded in the office of the
County Clerk the written instrument or
transfer showing the number of the permit,
certified filing certificate of adjudica-
tion, or claim, and the name and address of
the new owner. A certified or photocopy of
the instrument as recorded shall be filed
with the Commission, where water rights
involve irrigation, the Commission will
recognize the following:
(a) Transfer of land and water right: The
right to use water for the purpose of irri-
gation is appurtenant to the land which is
authorized to be irrigated, and title to
the land unless expressly reserved or
excepted.
(b) Reservation of water rights: When-
ever the owner reserves the water right
from the conveyance of land authorized
to be irrigated and desires to change
the place of use, the point of diversion,
or the purpose of use theretofore made of
the water, an application for amend-
ment must be filed with the Commission as
provided by Rule 605 or 610.
(c) A water right may be conveyed separ-
ate from the land, provided, however, the
water right must be utilized in accordance
with its terms and conditions until
amended by the Commission as provided in
these rules.
(d) Other transfers: A water right does
not attach to the irrigated land when held
by a water corporation or water district
authorized to supply water to others, or
when the water right is not limited to
lands specifically described by meters and
bounds. Only by express written conveyance
can such water right be transferred. The
foregoing is subject to all laws relating to
lawful rights of owners along ditches and
canals.
All water rights other than for irrigation
can be transferred only by written instru-
ment expressly transferring same {T.C.A.
§510.3).
In Clark y. Briscoe Irr. Co. (200 S.W. 2d 674, Civ.
App. 1947), the court stated that a perfected water
right constitutes a vested interest in or title to
use of the water is assignable except where it is
attached to specific land. This right carries with
it the incidental right to change the use of water to
any lawful place or purpose other than that designated
in the original appropriation.
14.2.7 Waste Water Disposal and Drainage
Section 5.021(a) states that waters of natural streams
or watercourses are the property of the state, includ-
ing "the storm water, flood water, and rain water of
every river,natural stream, canyon, ravine, depression,
and watershed." The Texas Supreme Court, in Turner v.
Big Lake Oil Co. (128 Tex. 155, 96 S.W. 2d 221,
1936) held the above statute to be unconstitutional
to the extent that the language purported to convert
diffused surface water into public water on lands
patented by the state before 1913.
The landowner has property rights in diffused surface
water under the civil law rule. Section 5.140 gives
a landowner the right to construct a reservoir up to
a 200 acre-foot capacity upon his property for live-
stock and domestic purposes without the acquisition
of an appropriate water permit. Therefore, diffused
surface waters can be impounded without consideration
of a downstream user.
As to the disposal or diversion of diffused surface
waters, the Texas courts again have followed the civil
law rule. Therefore, the upper proprietor has the
right to have diffused surface waters flow naturally
from his land to the land of a lower riparian who has
no right to obstruct the flow and cast water back upon
the above land. If a flow has been changed to accel-
erate or concentrate the flow, the lowerowner may
repel! the flow.
227
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14.3 ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS
14.3.1 State Water Agencies
Administrative control of water rights is vested in
the Texas Water Rights Commission.2 The Commission
will grant an application if unappropriated water is
available, if the water will be put to a beneficial
use, if the use will not impair existing water rights
or vested riparian rights, and if the use is not detri-
mental to the public welfare (T.C.A. 55.133).
The Commission has broad discretion in considering
one application over another. In City of San Antonio
v. Texas Water Commission (407 S.W. 2d 752, Sup. Ct.
Tex. 1966), the court upheld a decision by the
Commission which had given preference to an applicant
who had not contemplated on interbasin transfer.
Decisions of the Commission are subject to judicial
review.
After an administrative investigation is made, notice
to all water users involved in the proposed adjudica-
tion must be given. The claimants are required to file
sworn statements. After these procedures have been
followed, a hearing will be held by the Water Commis-
sion. Final determination is filed in the district
court of the county containing the stream involved in
the adjudication. Only questions of fact raised in the
record of the hearing before the Commission will be
reviewed by the court.
As was stated earlier, the permit system was adopted
in Texas in 1913 and it is the exclusive method of
acquiring an appropriation right. The Texas Water
Commission has the authority to pass upon competing
applications for permits. All appropriations are a
matter of record, giving priority to claims as a mat-
- ter of record.
The Commission has the power to appoint an executive
director, the chief administrative officer. The staff
consists of an hydrologist and other specialists in
the area of water administration. The Commission may
enforce its rules by injunction. Judicial review is
available to aggrieved parties. The Commission must
evaluate outstanding permits and certified filings
and cancel unused permits.
Seasonal (T.C.A. 55.136), temporary (T.C.A. 55.137),
and emergency (T.C.A. §5.1371) permits can be issued
by the State Water Rights Commission. The other
agency involved in the management of the state's
water resources is the Water Development Board (T.C.A.
ill.001-11.503), which is given.the responsibility of
making studies which relate to the occurrence, quantity,
quality, and availability of surface and ground waters.
The Board is required to prepare a comprehensive
state water plan to be a flexible guide to state pol-
icy regarding the development of water resources.
14.3.2 Judicial Bodies
Texas does not have special water courts. Appeal of
Commission's decisions are appealable to the appropri-
ate district court.
14.3.3 Water Users and Their Organizational
Structure
Districts—
Distrfcts are corporations with a public purpose; and
while they are subdivisions of the state, they differ
from counties and like political units in that they
function for profit and are organized for a business
purpose rather than a governmental purpose (Ball v.
Rio Grande Canal Co.. 256 S.W. 678, Tex. Civ. App.,
1923).The purposes of a water district are set out
in Section 51.121:
(a) A water control and improvement district
organized under the provisions of Article III,
Section 52, of the Texas Constitution, may
provide for:
(1) the improvement of rivers, creeks, and
streams to prevent overflows, to permit nav-
igation or irrigation, or to aid in these
purposes; or
(s) the construction and maintenance of
pools, lakes, reservoirs, dams, canals, and
waterways for irrigation, drainage, or nav-
igation, or to aid these purposes.
(b) A water control and improvement district
organized under the provisions of Article
XVI, Section 59, of the Texas Constitution
may provide for:
(1) the control, storage, preservation,
and distribution of its water and flood
water and the water of its rivers and streams
for irrigation, power, and all other purposes;
(2) the reclamation and irrigation of its
arid, semi-arid, and other land which needs
irrigation;
(3) the reclamation, drainage, conservation,
and development of its forests, water, and
hydroelectric power;
(4) the navigation of its coastal and inland
water;
(5) the control, abatement, and change of any
shortage or harmful excess of water;
(6) the protection, preservation, and restor-
ation of the purity and sanitary condition
of water within the state; and
(7) the preservation and conservation of all
natural resources of the state.
(c) The purposes stated in Subsection (b) of
this section may be accomplished by any prac-
tical means.
To enforce appropriate regulations, the districts may
set reasonable penalties, not to exceed fines of more
than $200 or imprisonment for more than 30 days or
both. These penalties are in addition to other penal-
ties provided for by the laws of the state. Such pen-
alties may be enforced by complaints filed in the
appropriate court of jurisdiction in the county in
which the district's principal office is located
(T.C.A. §51.131).
The governing body of a district is a board of direc-
tors who may award the use of district water in the
following order of preference and superiority:
(1) domestic and municipal use;
(2) industrial use, other than the devel-
opment of hydroelectric power;
development of hydroelectric power;
2Letter to the principle investigator from Robert
E. Schneider, Executive Director of the Texas Water
Rights Commission, April 22, 1976.
(3) irrigation;
(4) development
(5) pleasure and recreation;
(b) The board may withdraw water from an infer-
ior use and appropriate the water to a superior
use when required for the welfare of the
district.
228
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(c) The board must use the condemnation
procedures in Subchapter F of this chapter
for a withdrawal or diversion of the use
of water which affects a vested right
{T.C.A. §51.184).
Transfer of a water right is allowed by Section
51.186:
If there is land in a district which has a
water right from a source of supply acquired
by the district but the land is difficult or
impracticable to irrigate from that source
of supply, the district may allow transfer of
the water right to other land which is adjacent
to the district with the same right of water
service as the land from which the water was
transferred.
The districts are authorized to sell surplus water for
use in irrigation, domestic, or commercial uses to
any person who owns or uses land in the vicinity of
the district or to other districts which include land
in the same vicinity (T.C.A. §51.188).
Texas statutes provide for the creation of Underground
Water Conservation Districts (T.C.A. §52.001 et. seq.)
in order to conserve, preserve, protect, recharge, and
prevent the waste of underground water (T.C.A. §52.021).
In Garwood Irrigation Co. y. Lower Colorado River
Authority (387 S.W. 2d 746), the court held that farm-
ers served by an irrigation system had no rights ex-
cept through the company whose rights entitled it to
take Colorado River water to irrigate specified
acreage. The farmers were not appropriators but
rather they were customers of an appropriator.
In Ball v. Rio Grande Canal Co. (256 S.W. 678, 1923),
the court stated that it is the well-settled law that
irrigation companies organized for the purpose of irri-
gating lands are, in their nature, quasi public corpor-
ations. Because of this, persons holding lands contig-
uous to their canals are entitled to receive water
from such companies as a matter of right, when paid
for, limited only by prior contracts or by such other
limitations which may be imposed by law.
In Uillis v. Heches Canal Co. {7 S.W. 2d 184), the
court held that a landowner's right to priority in the
use of water must be determined as if Texas statutes
had been written into the contract with the irriga-
tion company.
14.4 POLLUTION CONTROL
The Water Quality Board is required to adopt standards
for all waters within the state. These waters have
been divided into zones and a determination has been
made as to the uses which were practical within each
zone. The Board establishes both standards which are
applicable to all waters of the state and specific
water parameter values for each stream. A determina-
tion can then be made of the level of waste each
stream can withstand according to its designated uses.
Both the Board and the Attorney General share the task
of enforcing the water quality standards.
Section 21.002 declares it to be the policy of the
state to maintain the quality of water consistent with
the public health and enjoyment, the propagation and
protection of terrestrial and aquatic life, the oper-
ation of existing industries, and the economic
development of the state.
The Water Quality Board establishes the level of water
quality to be maintained and controlled in the state
(T.C.A. §21.061). The State Water Quality Act
(T.C.A. §21.001-21.612) empowers the State Water
Quality Board to adopt standards for all Texas
waters.
REFERENCES
Hutchins, Wells A., The Texas Law of Water Rights.
published by Texas Board of Water Engineers, 1951.
, "Irrigation Survey, 1974," Irrigation Journal ,
Vol. 24, No. 6, Nov./Dec., 1974.
, Proceedings-Water Law-Conference July 17-18.
1955, Sponsored by the School of Law, University of
Texas.
, Rules, Texas Water Rights Commission, 1976.
. The Thirty-First Report of the Texas water
Rights Commission, covering the Biennium Sept. 1.
1972-Aug. 31, 1974.
229
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APPENDIX A REPORT 15
UTAH
15.1 HISTORICAL BACKGROUND
Utah is the second most arid state in the continental
U.S.A., receiving an annual precipitation of 13 inches.
It has three major rivers—the Colorado, Sevier and
Bear. From 1963 to 1974, the irrigated acreage in-
creased steadily from 1,200,000 acres to 1,680,000
acres. Those lands receiving sprinkler irrigation
likewise made a steady increase from 34,500 acres in
1968 to 67,948 in 1972. But, in 1974, there was a
20 percent increase reported, with 161,400 acres
irrigated by sprinklers ("Irrigation Survey, 1974").
Although the increased use of sprinkler irrigation
has raised the level of efficiency among many water
users, this issue has introduced another problem of
concern for the State Engineer. A detrimental effect
on return flow occurs as a result of greater effi-
ciency in application, particularly where the same
amount is diverted by the water right holder(s)
but not applied to more acres. The State Engineer's
office has been conducting extensive investigations
into the impacts of canal lining and transfering from
flood to sprinkler irrigation (letter to author from
Utah State Engineer dated April 5, 1976). Because
of the low precipitation rate, water allocation and
administration in Utah has played a very important
role in the development and history of the state.
Water rights law in Utah evolved from the irrigation
practices initiated by the first Mormon pioneers to
arrive in the Great Salt Lake Valley (Dewsnup and
Jensen, 1973, p. 715). These pioneers were the first
Anglo-Saxons in the United States to practice irriga-
tion on an extensive scale (Hutchins and Jensen,
1965, p. 1). Because of the arid nature of the region,
the diversion and application of the water to the sur-
rounding land made the adoption of an appropriation
system a necessity. In its earliers decisions (1878-
1880) involving water, the Territorial Supreme Court
recognized the appropriation doctrine as the basic
water law of the territory (Crane v.Winsor, 2 Utah
248, 1878; and Mugroe v. Ivie, Z Utah 535, 1880).
In later decisions, the Utah Supreme Court ruled that
the riparian doctrine had never constituted a part
of the Utah water law (Gunnison Irr. Co. y. Gunnison
Highland Canal Co., 52 Utah 347, 174 P.852, 1918).
The Utah constitution recognizes and confirms all
existing rights to the use of water for any useful
and beneficial purpose.
Before 1903, the way to acquire water rights was to
divert the water from its natural channel and apply
it to a beneficial use. Upon completion of these
steps, the user acquired a valid right to the water
which was known as a diligent right (Yardley v. Swapp,
12 U.2d 146, 364 P.23 4, 1961).
Early legislation allowed other means to acquire water
rights. For a period of 28 years (1852 to 1880),
county courts were given the power to grant water
privileges. This method was then replaced with pro-
visions which allowed county commissioners to determine
claims to use water.
In 1897, a specific statutory procedure was enacted to
acquire water rights. The users had to post notice,
file a copy with the county recorder and complete his
project within a reasonable time. Priority related
back to the posting of the notice. However, rights
could still be acquired by diversion and beneficial
use.
use. In 1903, the legislature again acted and pro-
duced a law which provided that an appropriative water
right could be acquired only through the filing of an
application with the State Engineer (Hutchins and
Jensen, 1965 pp. 10-15). Any owners of water rights
which were initiated before 1903 but not perfected
were allowed a reasonable time to beneficially use
the water and gain a perfected right (Jensen v. Birch
Creek Ranch. 76 U. 356, 289 P. 1097, 193UT
15.2 SUBSTANTIVE LAW
15.2.1 Property Right in Water
The Utah legislature has declared that all water in the
state, whether above or below the ground, is the prop-
erty of the public (Utah Const., Art. XVII, §1;
U.C.A. 573-1-1, 1953).
All waters in Utah are subject to appropriation pro-
vided such water is used for a beneficial purpose
(U.C.A. §73-1-31, 1953).l An appropriator must have
a possessory right to the land upon which the water
is applied, though title need not reside in the
appropriator (Lake Shore Duck Club v. Lake View Duck
C1 ub, 50 U.S. 76, 166 P. 309, 1917; Jensen v. Birch
Creek Ranch Co., loc. cit.).
A water right in Utah is treated as a type of real
property and is protected in the same manner as other
real property (in re Bear River Drainage Area, 2 U.2d
208, 271 P.2d 846, 1954). As is common in stated
applying the appropriation doctrine, the right to
the use of water is a usufructuary right. This right,
a right to the use of water, is distinguished from a
right to the body of the water itself (Salt Lake City
v. Salt Lake City Water and Electrical Power Co.. 24
U. 249, 67 P. 672, 1902). The right is based on
quality as well as quantity in Utah (Salt Lake City
v. Boundary Springs Water Users Ass'n.. 2U.2d 141,
270 P.2d 453, 1954).Due to the nature of water,
whether it is in streams or in basins above or under-
ground, it is not subject to absolute ownership in
the same way as other property, but it belongs to the
public. Rights to its use are appropriable by private
individuals only (Fairfield Irr. Co. v. White. 18 U.
2d 93, 416 P.2d 641, 1966).
Water flowing in a natural stream is not the subject
of private ownership. Any private rights which do
attach are strictly usufructuary rights to take the
water from the stream and apply it to a beneficial
use. Therefore, private rights of ownership do not
attach to the corpus of the water if it remains in
the stream in its natural state (Adams v. Portage
Irr. Res, and Power Co.. 95 U. 1, 72 P.2d 648, 1937).
Denial of private ownership in the corpus is subject
to the existence and protection of valid rights to
capture, possess and beneficially use such waters
(Oldroyd v. McCrea, 65 U. 142, 235 P. 580, 1925).
It is only when the water has been diverted into
private conduits with the state's permission that the
diverter can claim a qualified ownership in the
water (Spanish Fork Westfield Irr. Co. v. District
Court, 99 U. 527, 104 P.2d 353, 1940).
iBeneficial use is the basis, the measure and
the limit of all rights to use water in Utah. See
also U.C.A. §73-3-1, 1953.
230
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However, in In re Bear River Drainage Area (2U. 2d
208, 271 P.2d 846, 1954), the Utah Supreme Court held
that private waters are subject to exclusive control
and ownership and can be used, sold, or wasted! This
is in direct conflict with Utah's policy of
conservation.
For taxation purposes, water has been divided into two
categories: (1) water which flows in a natural stream
or tidch; and (2) water in the pipes of a distributing
system (Bear Lake and River Waterworks and Irr. Co. v.
Ogden. 8 U. 494, 33 P. 135, 1893). The first category
is not subject to ownership as far as the corpus of
the water is concerned and is exempt from taxation
if the land to which it is appurtenant has been taxed.
The second category is considered personal property
and is not subject to taxation in Utah (Baird v.
Upper Canal Irr. Co.. 70 U. 57, 257 P. 1060, 1927).
An action for damages for injury to fish and fish ponds
is one for injury to personal property (Ressev.
Qua!trough, 48 U. 23, 156 P. 955, 1916).
The right which an appropriator gains is a private
property right subject to ownership (In re Bear River
Drainage Area, loc. cit.) and is considered a valuable
property right (Hanmond v. Johnson.. 94 U. 20, 66
P.2d 894, 1937).
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
(Arizona v. California. 56 S. 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 actual
application to some beneficial use
(Black's Law Dictionary, 4th Edition).
15.2.2 Acquisition of Right
Rights to the use of unappropriated public water can
be acquired only by filing an application to approp-
riate. This statutory procedure is the exclusive
method of appropriating water (U.C.A. §73-3-1).2
Aoplications for water rights may be filed by
persons, associations, corporations, and public
agencies (U.C.A. §73-3-2). Upon receipt of an appli-
cation, notice is published in the county where the
point of diversion is located. Objection to the appli-
cation may be submitted within thirty days of the last
publication date. If a protest is filed, the appli-
cation is set for hearing by the State Engineer (U.C.A.
573-3-6 to 73-3-7).
Before approving an application, the State Engineer must
find that: (a) there is unappropriated water in the
source; (b) the proposed use does not impair existing
rights, or interfere with a more beneficial use;
(c) the proposed plan is physically and economically
feasible; and (d) the applicant has the financial
ability to complete the works and the application was
not filed for purposes of speculation or monopoly
(U.C.A. S73-3-8 Supp.). Applications, in marginal
cases, will be approved in light of the policy of the
state to promote the greatest possible beneficial use
of its water resources (Little Cottonwood Water Co. v.
Kimball, 76 U. 243, 289 P. 116, 1930).The applicant,
2See Hanson v. Salt Lake City, 115 U. 404, 205
P.2d 255, 1949 ; Bullock v. Tracy. 4 U.2d 370, 294
P.2d 707, 1956.
however, has the burden of showing that all statutory
requirements have been met (Shields v. Dry Creek Irr.
Co., 12 U.2d 98, 363 P.2d 82, 1961).
Once water has been placed to beneficial use, the
applicant submits proof and is issued a certificate
of appropriation which is recorded in the county
recorder's office. A certificate of appropriation
constitutes prima facie evidence of a water right
(U.C.A. §73-3-17). After the certificate has been
filed, the only requirement is to preserve the valid-
ity of the right—to continue to use the beneficial
use of the water in the manner provided for by the
certificate (Dewsnup and Jensen, 1973, p. 724).
An application has priority as of the date it was
filed in the State Engineer's office (U.C.A. §73-3-1).
The State Engineer's office, under Section 73-3-8,
is to maintain an orderly and efficient system for
the appropriation, distribution and conservation of
water. This is to allow as much water to be benefic-
ially used as possible (Bullock v. Hanks, 22 U.2d
308, 452 P.2d 866, 1969).
In U.S. v. District Court of 4th Judicial District
(121 U. 18, 242 P.2d 774), the court construed
Section 73-3-11 to require approval or rejection of
an application. If the application is approved, the
applicant is authorized to proceed with the proposed
work. If, however, it is rejected, the applicant
is forbidden to proceed. (Financial ability to
complete the needed work is not specifically mentioned
in Section 73-3-11.)
In Hayman v. Murray City Corp. (23 U.2d 97, 453 P.2d
861, 1969), the Utah Supreme Court stated that the
policy of this statute was to insure both the highest
development possible and the most continuous benefi-
cial use of available water with a minimum of waste.
An appropriation must consist of a diversion (an
actual taking) of water from a natural channel by
means of a ditch or other structure, and a beneficial
application (use of the water within a reasonable time)
(Sowards v. Heagher. 37 U. 212, 108 p. 1112, 1910);
Wrathall v. Johnson, 86 U. 50, 40 P.2d 75S, 1935).
The appropriation must be for good faith purposes,
not for speculation (U.C.A. 573-3-8). In cases
where construction is required, proof of the financial
ability to complete the needed work is mandatory
(U.C.A. 173-3-8, see also 73-3-11).
There is no statutory directive for a finding that
the use proposed in the application be a beneficial
use. The directions to the State Engineer contained
in the statute have been considered by the Utah
Supreme Court on a number of occasions. The court
has taken a liberal view of the legislative intent
that the public waters of the state be made available
for beneficial use. State policy, as expressed by
statute, is that "new appropriations should be
favored and not hindered" (Little Cottonwood Vlater
Co. v. Kimfaall , loc. cit.; Uhitmore v. Welch. 114
U. 578, 201 P.Zd 954, 1949). The court has recog-
nized the rejection of specific applications in the
interest of the public welfare even though all the
waters of a stream have not been appropriated (Tanner
v. Bacon, 103 U. 494, 136 P.2d 957, 1943). But,
when the question of unappropriated water is in
doubt, the State Engineer should have the power to
approve the application and afford an orderly recourse
to the courts (Rocky Ford Irr. Co. v. Kents Lake Res.
Co., 104 U. 202, 135 P.2d 108, 1943; Lehi Irr. Co.
v. Jones, 115 U. 136, 202 P.2d 892, 1949).
231
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The Supreme Court of Utah has held that the State
Engineer is to determine if there are unappropriated
waters which can be appropriated for a beneficial use
without impairing existing rights or interferring
with a more beneficial use, and whether the proposed
plan is both feasible and within the financial
ability of the applicant (Bullock v. Tracy, 4 U.2d
294 P.2d 707, 1956). Furthermore, the State Engineer
is to reject applications only when it is clear that
the applicant can establish no valuable rights
through the proposed appropriation.
It is significant that the State Engineer is given
authority to determine only that the proposed will
neither interfere with an existing use not prove
detrimental to the public welfare. If the State
Engineer has reason to believe that more beneficial
uses of the water will be interfered with, or that
the public welfare will be adversely affected,
approval or rejection of the application will be
withheld pending an investigation (U.C.A. S73-3-8).
Ground Hater—
Early decisions classified ground water as water
flowing in a definite underground stream, the under-
flow of surface streams and percolating water
(Chandler v. Utah Copper Co.. 43 U. 479, 135 P. 106,
1913).All ground water within the state is now
subject to appropriation which has destroyed the
above distinctions.
In 1935, the Utah Supreme Court abandoned the corre-
lative rights doctrine which had been adopted in
Home v. Utah Oil Refining Co. (59 U. 279, 202 P.815,
1921).This abrogation took place in Wrathall v.
Johnson (86 U. 50, 40 P.2d 755, 1935), which also
held that percolating ground water was subject to the
appropriation doctrine.
Ground water rights can only be acquired by filing an
application to appropriate with the State Engineer
(U.C.A. §73-3-1). Underground water which is dif-
fused and percolating through the soil to the surface
and sustains beneficial plant life, and follows no
traceable course to a watercourse or the lands of
another is exempt from this statute (Riordan v.
Westwood, 115 U. 215, 203 P.2d 922, 1949T
The rule of reasonableness governing the allocation
of the right to use underground water requires an
analysis of the total situation, including the quant-
ity of water available, average annual recharge in
the underground water basin, and existing rights and
priorities. All users must employ reasonable and
efficient means in taking water and avoid'the wastage
of waters to allow the greatest amount of water to be
put to a beneficial use (Wayman v. Hurry City Corp.,
23 U. 2d 97, 458 P.2d 861, 1969).
Past court decisions have tended to delay, if not
preclude, more effective use of ground water basins
(Interim Report on State Water Plan, 1970). Since
ground water reservoirs can be managed in the same
manner as surface reservoirs, failure to manage
them results in the waste of water through inadequate
reservoir capacity or the need to invest in alternative
storage surface facilities.
Moreover, the emphasis upon preserving the static head
probably has limited the extent to which the surface
and ground water systems are operated together for
maximum effectiveness. This is a situation similar
to the concept that an appropriator is entitled to
have conditions maintained on the stream as they were
when the appropriation was made. The static head is
analogous to the height of a stream. Since ground
water reservoirs are subject to annual recharge, and
many surface rights are based on return flow which is
a form of recharge, these waters are all interconnected
and suited to operation in conjunction with each
other. That is, the ground water reservoir could be
utilized to meet daily and seasonal water peaks and
as a reserve supply for use in prolonged drought per-
iods (Ibid., p. A5).
Prescriptive Water Rights—
By statute, there is no right to use water adversely
which may ripen into an acquired right (U.S.C. §73-1-
4). The consequence of this is that, should an
appropriator's right be used without consent, no
adverse right will result. The right will, however,
be forfeited at the end of a five-year period and
revert to the public.
Preferences—
There are no preferences among uses when competing
applications are filed. An application will be re-
jected if it would interfere with a more beneficial
use of the water or would prove detrimental to the
public welfare (U.C.A. §73-3-8).3 In times of
scarcity, domestic uses have top priority, followed
by agricultural uses.
15.2.3 Adjudicating Water Rights
Prior to 1903, the principal manner by which rights
were obtained was by diversion of water from a natural
channel and application to a recognized beneficial
use. Once this was accomplished, the user acquired
a right to the water. These early water rights have
come to be known as "diligence rights" (Yardley v.
Swapp. loc. cit.). The owner of a diligence right,
not otherwise of record, may file a diligence claim
in the State Engineer's office. Under statute, a claim
once filed constitutes prima facie evidence of a water
right (U.C.A. §73-5-13). The procedure by which a
water right could be acquired under the diligence
method ended in 1903 when the legislature provided
that an appropriation could be acquired by filing an
application with the State Engineer (Hutchins and
Jensen, 1965, pp. 10-15). Owners of the pre-1903
rights, which had not been perfected, were allowed
a reasonable time within which to place the water to
beneficial use and thus perfect the right (Utah Laws,
1903, ch. 100 at 106-07; Jensen v. Birch Creek Ranch,
loc. cit.).
The only significance of an historical diversion (a
diligence right) is that it could be perfected with-
out complying with the statutory procedure now in
force. Both historical and statutory rights are
subject to the supervision of the State Engineer and
may be lost if not placed to beneficial use. This
follows from the concept that beneficial use is the
basis, measure and limit of a right to use water in
Utah (Utah Const. Art XVII, §1; U.C.A. §73-1-3).'*
It may also follow from the public policy against the
waste of water (Little Cottonwood Water Co. v. Kimball,
loc. cit.; Wayman v. Murry City Corp., loc. cit.).
The State Engineer is charged with regulating water
to prevent uses of water that are detrimental to the
public welfare (U.C.A. §73-1-4). As with historical
and statutory rights, there is little difference
between historical diversions and statutory diver-
sions in adjudication involving a water conflict.
3See also Tanner v. Bacon, loc. cit.
kSee also McNaughton v. Eaton, 121 U. 394,
242 P.2d 570, 1952).
232
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Historical diversions and appropriative rights
granted by the State Engineer are subject to the judi-
cation powers of the court.
The statutory adjudication procedure is the principal
method for resolving water use conflicts in Utah.5
This procedure provides for a comprehensive determi-
nation of all rights to a stream or water source
(both historical and those granted under statute by
the State Engineer). This procedure is designed to
prevent piecemeal litigation legislation regarding
water rights (those problems resulting from a lack
of definition of the extent of an individual right
or from a lack of integration of all rights into a
single decree or distribution schedule) (Smith v.
D4strict Court. 69 U. 493, 256 P.539, 1972); In re
Bear River Drainage Area, loc. cit.).
The State Engineer, on petition of the water users
or the district court, can order a general adjudica-
tion (U.C.A. §73-4-1). All known water users are
served by publication with notice of the proceeding
(U.C.A. §73-4-4). Each of these users is required
to file a water users claim setting forth the details
of the right claimed. These claims, standing in Heu
of pleadings, frame the issues (U.C.A. §73-4-5, 73-
4-15). Failure to file a claim after proper notice
results in the water user being barred from subse-
quently asserting any rights. Failure to file a
claim is deemed to be a forfeiture of all rights
claimed (U.C.A. §73-4-9).6
The first step in this procedure is for the State
Engineer to prepare a hydrographic survey encompas-
sing all uses of the source involved. The State
Engineer proposes a determination of water rights
from this survey and any other relevant information.
This determination is mailed to individual users who
may then submit written protests to the district
court within 90 days (U.C.A. §73-4-11). These pro-
tests are tried before the district court with all
interested parties present. If no protests are
filed, the district court enters a judgment in
accordance with the proposed determination of water
rights as submitted by the State Engineer (U.C.A.
§73-4-12).
The district court is not bound to accept the
recommendations of the State Engineer. These recom-
mendations, however, carry substantial weight since
they were gathered from the information that formed
the basis for the proposed determination (Garrison
v Davis, 88 U. 358, 54 P.2d 439, 1936). This
adjudication is a determination of all rights which
had been or could have been asserted in such a pro-
ceeding (Green River Adjudication v. United States,
17 U.2d 50, 404 P.2d 251, 1965). Further, it is
proper for the court to set a duty of water, and
thereby limit individual appropriators to beneficial
use requirements (In re Water Rights of Escalante
Valley Drainage Area, 10 U.2d 77, 348 P.2d 679, 1960).
This procedure has been upheld against constitutional
tests that it confers judicial powers upon the State
Engineer, an administrative officer (Eden Irr. Co. v.
District Court of Weber County. 61 U. 103, 211 P.957,
1922). The only difference of any significance between
an historical (diligence) water right and a water
right granted by the State Engineer is that the former
was granted as a result of a diversion while the
latter was granted as the result of a statutory
procedure. The former is not exempt from any of the
current procedures for adjudication. It may be lost
for failure to be used in a beneficial manner or for
failure to be claimed in an adjudication procedure.
It appears that the only significant difference is
one of history.
15.2.4 Conditions of Use
Beneficial Use—
The term beneficial use is not defined by statute in
Utah. It is, however, the "basis, the measure and
the limit of all rights to the use of water" in the
state (Utah Const. Art XVII, §1; U.C.A. §73-1-3).7
This position has been repeatedly substantiated.
The Utah Supreme Court has recognized several uses as
being beneficial: domestic use, stock watering, irri-
gation, municipal, power, manufacturing, mining, and
fish culture (Hutchins and Jensen, 1965, p. 23).
The use of applicable water for the recovery of salts
and other minerals is recognized both by statute
(U.C.A. §73-3-8) and by the Utah Supreme Court
(Deseret Livestock Co. v. State. 110 U. 239, 171 P.2d
401, 1946).The latter decision has obvious implica-
tions for control of the salinity problem in the
state of Utah.
The State Engineer is not given authority to determine
what is a beneficial use. A final determination of
what constitutes a beneficial use must be made by
appeal to the court. This results in an arrangement
by which decisions of the State Engineer are often
appealed to the District Court and even to the Supreme
Court. Decisions of the State Engineer are one element
to be weighed by the court and are given special weight
in the same manner of a quasi-judicial finding.
Questions as to whether a use is beneficial and estab-
lishing preferences in uses can best be accomplished
by a trier of facts (Fairfield Irr. Co. v. White,
loc. cit.).
Water may not be appropriated in excess of the quant-
ity. It may be used for the beneficial purpose
designated by the appropriation (Crawford v. Lehi
Irr. Co.. 10 U.2d 165, 350 P.2d 147, 1970).8 The
finding of intent to apply water to a beneficial use
seems to be a judicial function following a finding
by the State Engineer on any specific application.
Further, the State Engineer has an implied right to
determine beneficial use in consideration of whether
a proposed project would be detrimental to the public
welfare (U.C.A. §73-3-8).9
5Letter to principal investigator from Dee C.
Hansen, State Engineer, May 9, 1975.
6Since the decree will be binding on the grantee
of a water user, it has been held that a grantee may
file a petition of his own—especially where he would
be bound by the order of his grantor. See Garrison v.
Davis. 88 U. 359, 54 P.2d 439, 1936.
7See also Gunnison Irr. Co. v. Gunnison High-
land Canal Co., loc. cit.; and McNaughton v. Eaton,
loc. cit..
80ne case, Silver King Consolidated Mining Co.
v. Sal ton, 85 U. 297, 39 P.2d 682, 1934, held that
the actual beneficial use made of the water—not the
amount in the application—was the limit of the
right.
9See also Tanner v. Bacon, loc. cit.
233
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In one adjudication, there was expert testimony to the
effect that certain lands not under irrigation could
be irrigated successfully with reasonably efficient
construction works. In light of this testimony, the
Utah Supreme Court held it to be the duty of the
water users to prepare their land properly, to pro-
vide reasonably efficient diversion and distribution
systems, and reasonably efficient methods of applying
water to the soil (Hardy v. Beaver County Irr. Co..
65 U. 28, 234 P.524, 1924).
Since early in its history, water in Utah has been
distributed in rotation (delivered to each user at
definite intervals throughout the irrigation season)
(Thomas, 1920, pp. 26 and 109). The Utah Supreme
Court has approved the use of the rotation system
where the practice served the best interests of the
community.10 Though some uncertainty was initially
expressed regarding the power to impose a rotation
plan on a nonconsenting user, later decisions have
approved this practice without qualification by the
trial courts (Big Cottonwood Tanner Ditch Co. v.
Shurtliff. 49 U. 569, 164 P. 856, 1917).
Reference to the duty of water can be found only by
implication from the definition of beneficial use.
The implication exists that any water used beyond the
requirements for a specific use would exceed the duty
of water. Thus, nonbeneficial use would be considered
a nonuse and therefore be subject to the statutory
forfeiture procedure.
The decision in In re Water Rights of Escalante Valley
Drainage Area (loc. cit.) held that it is necessary
and proper to limit prior appropriators to a volume of
water reasonably required to raise crops under reason-
ably efficient methods of irrigation. The right of a
water user to beneficial use requirements includes the
ability to place demands on all upstream sources
which supply the stream (Richlands Irr. Co. v. Westview
Co., 96 U. 403, 80 P.2d 458, 1938).
Haste-
It is contrary to public policy in Utah to waste water
(Little Cottonwood Water Co. v. Kimball. loc. cit.;
Wrathall v. Johnson, loc. cit.; and Uayman v. Murry
City Corp., loc. cit.). There is a positive duty in
Utah to return surplus water to the stream from which
it was taken (Bfian v. Fremont Irrigation Co.. 112
U. 220, 186 P.2d 588, 1947).
It would seem to follow from the beneficial use doc-
trine that wasting water for a period of five years
would be considered "nonuse" under the forfeiture
statute. However, there has not been a specific deci-
sion on this point.
A water user is entitled to use waste and seepage
waters as long as he has it in his possession and
control (HcNaughton v. Eaton, loc. cit.). An original
appropriator is not required to maintain a wasteful
method of use for the purpose of supplying water for
another appropriator (Smithfield West Bench Irr. Co.
y^ Union Central Life Ins. Co., 105 U. 468. 142 P.2d
8667 T943T.
Utah has a policy of prohibiting the waste of water
(Little Cottonwood Water Co. v. Kimball. loc. cit.;
and Wayman v. Murry City Corp., loc. cit.), which
would indicate that Utah is pursing the most efficient
beneficial use of the state's water. It has been held
1(>See Becker v. Marble Creek Irr. Co., 15 U.
225, 49 P.892, 1897).
that there is a duty to return surplus waters to the
stream from which they were taken (Brian v. Fremont
Irr. Co., loc. cit.). This decision is consistent
with both the policy prohibiting waste and that of
applying the greatest amount of water possible to a
beneficial use.
What may be 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).
15.2.5 Manner in Which Rights Hay be Adversely
Affected
Abandonment of a water right consists of more than a
mere nonuse. There must be an attempt to abandon,
coupled with some act of relinquishment by which the
intent is carried out (Promontory Ranch Co. v. Argile.
28 U. 398, 79 P. 47, 1904; Hammond v. Johnson. 94 U.
20, 66 P.2d 894, 1937). Intent is the essential
element. The burden of proof to show that water
has been intentionally abandoned is upon the person
who claims an abandonment (Wellsville East Field Irr.
Co. v. Lindsay Land and Livestock Co.. 104 U. 448.
137 P.2d 634. 1943; Dalton v. WadTey. 11 U.2d 84,
355 P.2d 69, 1960; Kirk v. Criddle, 12 U.2d 112,
363 P.2d 777, 1961). Evidence of temporary nonuse
without further evidence showing the intention of
the appropriator to abandon use of the water has been
held inadequate to sustain a claim of abandonment
(Promontory Ranch Co. v. Argile. loc. cit.).
Statutes provide that an appropriator who abandons or
ceases to use water for a period of five years shall
forfeit the water right. In such cases, the water
reverts to the public unless the owner applies to the
State Engineer and receives an extension of time
within which to resume use of the water (U.C.A. §73-
1-4).
The right to use water nonconsumptively lapsed when
the owner failed to file with the Engineer a form
stating that beneficial use had been resumed within
the extension time to resume (Baugh v. Criddle,
431 P.2d 790).
Adverse Possession—
Since 1939, water rights cannot be acquired or lost
by adverse possession.
Condemnation—
Utah allows for condemnation proceedings to obtain a
right to use or enlarge an existing canal or ditch
with payment of just compensation (U.C.A. §73-1-7).
The constitutionality of this act was upheld when an
individual sought to enlarge his neighbor's ditch in
order to get irrigation water to his own land
(Nash v. Clark. 27 U. 158, 75 P. 371, 1904).
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 forfeit-
ure statute. Use of water must be both beneficial
and relative to the reasonable requirements of sub-
sequent appropriators (In re^Water Rights of Escalante
Valley Drainage Area, loc. cit.).The opinion in
Big Cottonwood Tanner Ditch Co. v. Shurtliff (loc.
cit.) held that the use must be reasonable in relation
to the requirements of others, and also held that the
234
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court had the power to order improved method of
diversion, conveyance and measurement of water so as
to assure the greatest possible use of the resource.
This would have to be done without limiting or modi-
fying established water rights. The conflict in Utah
law is again apparent. Changes are to be permitted if
they would result in greater efficiency. However, no
change is permitted if it will injure downstream
users.
It remains unclear whether failure to use water for
a recognized beneficial purpose will result in auto-
matic statutory forfeiture. No decision seems to
exist as to whether failure to use water for a bene-
ficial use will result in forfeiture. It appears
that merely diverting the water would be enough to
sustain the right. From these cases it seems that
beneficial use is the basis, the measure and the
limit and if the water is not being beneficially
used, this would be equated with not using it, and
therefore the water would be lost under the statu-
tory forfeiture provision.
The object of the State Engineer's office is to
maintain order and efficiency in the appropriation,
distribution and conservation of water and to allow
as much water to be beneficially used as possible
(U.C.A. §73-3-8).
t
15.2.6 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. Thus, an upstream junior appropri-
ator cannot use water if that use would deprive the
downstream senior of his appropriated quantity.
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.
The owner of surface irrigation rights is entitled to
capture irrigation waste water before it leaves the
water user's property, even though it may in the past
have seeped or percolated through the soil to an en-
joining land owner (Hutchins and Jensen, 1965, p. 104).
This water is surface waste water. The landowner
receiving such water establishes no permanent rights
to it (Gams v. Rollins, 41 U. 260, 125 P. 867,
1912).nOnce water used for irrigation has percolated
into the soil, and where such waters if uninterrupted
would return to a source to satisfy the right of the
downstream appropriator, the land owner has no right
to extract and reuse these waters (Rasmussen v. Moroni
Irr. Co., 56 U. 140, 189 P. 572, 1920^The rationale
for this policy seems to be that once waters are perc-
olating, they have comingled with other ground waters
and have lost their character as waters segregated
from the bulk of the state's waters.
There is no obligation for an upper property owner to
continue wasting water to supply the needs of lower
property owners (Hutchins and Jensen, 1965, p. 80).
In a case involving the rights of stockholders in an
irrigation company to the use of waste and seepage
waters produced by the irrigation of their lands, the
court concluded that such waters could be captured by
individual shareholders at the lower ends of their
fields and reused (Smithfield West Bench Irr. Co. v.
nSee also Roberts v. Gribble, 43 U. 411,
134 P. 1014, 1913; and Peterson v. Cache County
Drainage Dist.. 77 U. 256, 294 P. 289, 1930.
Union Central Life Insurance Co.. 105 U. 468, 142 P.2d
866, 1943; 113 U. 356 195 P.2d 249, 1948).
This doctrine has obvious implications regarding irri-
gation return flow in light of the decision that an
appropriator is entitled to stream conditions substan-
tially as they were at the time of the appropriation.
The problem could arise where someone would capture
waters which are being lost and use them beneficially.
This use could result in a reduction of stream condi-
tions to a downstream appropriator which would consti-
tute a cause of action. In a conflict between two
individuals in this context, it would appear from
prior appropriation doctrine the downstream senior
user would have to prevail. Any other decision would
mean that his rights were not only subject to time,
amount and use, but also to the whims of upstream
appropriators to salvage water which had been returned
to the stream. Excessive fluctuations in stream flow
caused by a junior appropriator will not be allowed if
these fluctuations interfere with prior rights (Logan,
Hyde Park and Smithfield Canal Co. v. Logan, 72 U. 221,
269 P. 776, 1928).This was the finding in Logan,
Hyde Park and Smithfield Canal Co. v. Logan. It was
noted in this opinion that an appropriator is entitled
to have conditions maintained substantially as they
were when the appropriation was made.
In Siguid City v. State (105 U. 218, 142 P.23 154,
1943), the court cited Adams v. Portage I.R.&P.
Cjk (72 P.23, 648), which held that the
right to use water is a right to have water, in quant-
ity and quality to satisfy an appropriation, at the
point of diversion. Thus, water applied to the land
returns to the stream through seepage, deep percolation
or runoff minus that water which has evaporated into
the atmosphere.
A water user is allowed to turn appropriated water
into a natural watercourse or reservoir constructed
across the stream and reclaim like quantity of water
(less an amount allowed for evaporation and seepage)
at some other point along the watercourse--provided
there is no deterioration in the quality and quantity
of the water as a result of the exchange (U.C.A.
§73-3-20).
An upstream user in Utah cannot change application
methods so as to alter return flow patterns if such
changes would interfere with vested downstream rights.
As previously stated, an appropriator is entitled to
have a stream flow pattern remain in susbsantially
the same condition as it was when the appropriation
was made (East Bench Irr. Co. v. Deseret Irr. Co.,
2 U.2d 170, 271 P.2d 449, 1954). This doctrine is in
conflict with the concept that an appropriator may
salvage waters or may change a method of use to make
better use of appropriated water.
In the area of water quality, the conflict between
these two doctrines is crucial. It has been noted
that there is a need for modernization and improvement
of water systems to reduce losses on streams where the
salt concentration is excessive (Interim Report on
State Water Plan Staff Report No. 6, 1970). The
argument in favor of proper water management is
strengthened by a Utah Supreme Court decision in 1969.
Though a ground water case, it is illustrative of the
philosophy of the Utah court:
...inasmuch as such rights are so assured
and protected only by the authority of the
state, it is both logical and necessary that
the rights of each individual should be to
some degree subordinate to and correlated
with reasonable conditions and limitations,
235
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thereon, which are established by the law
for the general good. We believe that re-
flection will demonstrate that if this prin-
cipal is applied with wisdom and restraint,
and due consideration for the rights for all
concerned, it will be seen that the result
will much better serve the group (all users
in society) by putting to beneficial use the
greatest amount of water available, and ul-
timately, also for each individual therein,
than would any ruthless insistence upon
individual rights which simply result...
(Hayman v. Murray City Corp.. loc. cit.).
In Moyle v. Salt Lake City (111 U. 201, 176 P.2d 882),
the court held that the plaintiff who had furnished
potable water to the city and the city gave him lake
water which was suitable for irrigation only, in such
case the city was obligated to furnish Moyles with
the same quality of water.
In Moyle, the court said:
We are here confined to the narrow question
of the right to recover for the loss of the
use and occupation because of the condemnor
haying possession of the property while the
suit was pending (Moyle v. Salt Lake City.
Ibid.).
Salvaged and Developed Waters—
Salvaged waters are defined as waters which have been
part of the system or source of supply but which have
been lost to established users for application to a
beneficial use. Such waters are considered salvaged
if they have been recovered for use through individual
efforts (Dewsnup and Jensen, 1973, p. 729). The
party whose efforts resulted in the salvage of water
is entitled to its use in Utah. The user whose water
has been lost has no preferential right to salvage
such water (Big Cottonwpod Ditch Co. y. Shurtliff,
loc. cit.). This was the finding in Salt Lake City
v. Gardner (39 U. 30, 114 P. 147), in which the
court held:
...while the original appropriator of water
acquires such a right in his means or method
of diverting water from a stream and that such
means...may not be interfered with or changed
to his prejudice by another water user, but
if another water user who is entitled to the
water can save the water and can put it to a
beneficial use by changing the manner of di-
version of the prior water user, he may do so
...and if he preserves and maintains all the
rights of the prior user whose means or method
of diversion is thus changed or affected.
This case held that a defendant could not use water
saved by lining irrigation ditches.
Provisions for Transfer of Water Rights and
Divers ions-
Utah statutes provide a procedure—an exclusive
procedure—for making changes in place of diversion,
place of use and purpose of use of appropriated
water (Anderson, 1975). Subject to the basic re-
quirements, no such change may be made if it impairs
an invested right without just compensation. The
approval of the State Engineer is required and the pro-
cedure in obtaining this approval is the same as that
pertaining to applications to appropriated water
(U.C.A. §73-3-3). The right to make these changes
subject always to the rule that noninjury to others
accompany the change has long been recognized by the
Utah Supreme Court .12
While a change that contemplates a more beneficial use
of water which can be completed without impairing
vested rights is fully consistent with the policy of
establishing the most beneficial use of the state
(American Fork Irr. Co. v. Luike. 121 U. 90, 239 P.2d
188, 1951), the right to make the change is a condi-
tional one, not an absolute or vested right, especi-
ally if the public or any prior or subsequent
appropriator is adversely affected, in which case the
right to make the change will be withheld (United
States v. Caldwell, 64 U. 490, 231 P. 434, 1924).
One who is seeking to make a change has the burden of
making a prima facie case that the change will not be
injurious to anyone (Tanner v. Humphreys, 87 U. 164,
48 P.2d 484, 1935). But, anyone who opposes such an
application will fail if the evidence does not dis-
close that his right will not be impaired (Salt Lake
City y. Boundary Springs Water Users Ass'n., 2 U.2d
141, 270 P.2d 453, 1954).These provisions governing
changes in water diversion and use of applied water
diverted from stream channels or other public sources
of supply do not apply to deliveries of water by a
mutual irrigation company to which stockholders in
instances in which the users desire change or
individual diversions from one point to another on the
company's canal (Syrett v. Tropic & East Fork Irr. Co..
97 U. 56, 89 P.2d 474, 1939).
The nature of the State Engineer's function in acting
upon applications to make changes in the exercise of
appropriative rights, and that of the judicial review
of the determinations, has been expounded by the Utah
Supreme Court. The State Engineer as well as the
courts is required to exercise discretion, determine
facts after a hearing, and approve or reject applica-
tions accordingly. His duties are administrative in
nature and purpose, and the courts' judgment on appeal
covers only the issues subject to determination by
him (United States v. District Court, 121 U. 1, 238
P.2d 1132, 1951). A judicial decision on appeal has
the same affect on the rights of the applicants to
proceed with their project as the same decision on
the State Engineer would have had without an appeal.
However, there is an important distinction. The
decision of the State Engineer is that of an adminis-
trative officer; it does not adjudicate the law or the
facts in issue. On the other hand, a court decision
on appeal goes beyond that and becomes the law of the
case, it is res judicata between the parties, and is
binding precedent on the law as in other decisions by
the court on other matters (East Bench Irr. Co. v.
Utah. 5 U.2d 235, 300 P.2d 603, 1956).
In Moyle, the court stated that:
if the evidence shows that there is reason
to believe that the proposed change can be
made without impairing vested rights, the
application should be approved. The owner
12Some representative cases are: Spring Creek
Irr. Co. v. Zollmeyer. 58 U. 90, 197 P. 737, 1921
(change of point of diversion); Hague v. Ngski (SP)
Irr. Co., 16 U. 421, 52 P. 765, 1898 (same); Manning
v. Fife. 17 U. 232 54 P.Ill, 1898 (purpose of use).
For cases holding that a change will not be allowed
because of resultant injury, see Tanner v. Provo Res.
Co., 76 U. 335, 289 P. 151, 1930; and Piute Res. &
Irr. Co. v. West Panguitch Irr. & Res. Co., 13 U.2d
6, 367 P.2d 855, 1962).
236
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of a water right has a vested right to the
quality which he has beenficially used
(Shurtleff v. Salt Lake City. 96 U. 21, 82
P.2d 561, 1938; Siguid City v. State, loc.
cit.; Moyle v. Salt Lake City, loc. cit.)-
A change application cannot be rejected
without a showing that vested rights will
thereby be substantially impaired. While
the applicant has the general burden of
showing that no impairment of vested rights
will result from the change, the person
opposing such application must fail if
the evidence does not disclose that his
rights will be impaired.
In McNaughton v. Eaton (loc. cit.; Larson v. Seely,
120 U. 679, 238 P.2d 418, 1951); the Utah Supreme
Court stated:
the original appropriator, as long as he
has possession and control thereof, may
sell or transfer the right to the use of
such waters to someone other than the
reappropriator as long as he is in faith,
and they are beneficially used, or he may
recapture and use them for further bene-
ficial use if he does so before they get
beyond hi s property and control.
Once waters have been run through the canals of an
appropriator and applied to land, water seeping or
percolating back into the main channel loses its
identity and becomes part of the natural flow
(Salt Lake City v. Telluride Power Co., 82 U. 607,
17 P.2d 281, 1932).One case held that such water
becomes the natural flow of whatever stream it may
enter (Smithfield West Bench Irr. Co. v. Union x
Central Life Insurance Co., loc. cit.).If water
used for irrigation becomes comingled with water of
the water table, it loses its identity as irrigation
water and is no longer owned by the irrigator (Stubbs
v. Ercanback. 13 U.2d 45, 368, P.2d 461, 1962).
One weakness of this system is that the land
cannot change a point of diversion, place or manner of
use if such change interferes with the rights of
downstream users (East Bench Irr. Co. v. Deseret
Irr. Co., loc. cit.Ji This is a result of the doctrine
that an appropriator is entitled to rely on stream
conditions remaining substantially as they were when
the appropriation was made. There appears to be a
conflict in the law in that one doctrine says that an
appropriator is entitled to rely on stream conditions
remaining substantially as they were when the appro-
priation was made even if this means allowing water
wasted through inefficient practices to return to the
stream if such practices were in existence when the
appropriation was initiated. Other doctrinal concepts
seem to hold that if waste water is captured before it
reaches the stream, that the downstream appropriator
has no right to it. Clearly, these two concepts can-
not be reconciled. The Utah court has attempted to
distinguish cases where the original owner maintained
control over these waters and did not allow them to
return to the watercourse. This distinction is
seemingly devoid of substance in that, by maintaining
control of water so that it will not reach the
stream, the appropriatcr may alter stream conditions
for downstream users.
15.2.7 Waste Water Disposal and Drainage
The owner of higher ground is entitled to the natural
drainage of water from such land onto the property of
a lower landowner. Water placed upon the land by
natural forces will be allowed to discharge upon the
lands of others even to the Tatter's injury. This
right, however, does not extend to seepage and drain-
age waters from irrigation collected by a property
owner in artificial drains and discharged into canals
or onto the property of others to his injury. While
a prescriptive right may be acquired to maintain
artificial drainage in this manner, the facts must
show that all of the elements necessary to establish
a right by adverse use are present. Since adverse use
no longer exists in Utah, as a grounds of obtaining
a water right, the drainage would have to continue
for five years at which time the statutory forfeiture
clause would perhaps be invoked.
In one case, for example, a lower landowner claimed
a benefit stemming from the irrigation of the land
owner's property through subirrigation by drainage
water from upper lands. The Utah Supreme Court
allowed the defendants drainage district to install
drains in adjoining land even though it lowered the
water table and destroyed the subirrigation of the
lower property. The court stated that such drainage
would be allowed regardless of whether the water
originated from natural or artificial sources. It
is also noted that an upper property owner is entitled
to drain land to make the property usable absent
malice or negligence in doing so (Peterson v. Cache
County Drainage Pi St., 77 U. 256, 294 P. 239, 1930;
see also Roberts v. Gribble. 43 U. 411, 134 P. 1014,
1930). This is exemplary of the conflict that
exists between the rights of surface owners and of
ground water users. Whereas it has been held that •
the surface appropriator has the right to the stream
as it existed at the time of the appropriation, a
ground water user does not have the right with regard
to ground water. Thus, in connection with the doctrine
that an upper property owner is entitled to drain his
land, absent negligence in doing so, would seem to
indicate that an upper property owner who is contrib-
uting salts to the water and letting it drain to a
lower landowner, thereby destroying the usability
of the lower land, could be held to be using his
water negligently, especially since he is permitted
in Utah to install drains on his land to stop the
subirrigation. This reasoning might be used in Utah
to enforce future salinity standards.
Invasion of a person's interest in the private use
and enjoyment of land as the result of an adjoining
landowner's diversion of the flow of surface
waters is actionable as a private nuisance (Sanford
v. University of Utah, 26 U. 2d 285, 488 P.2d 741,
1971).Further, a landowner has the right to be
free from receiving waters from his land if the
waters do not find their way there naturally
(Reeder v. Brigham City. 17 U.2d 398, 413 P.2d 300,
1966T
15.3 ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS
15.3.1 State Water Agencies
The Department of Natural Resources effectuates admin-
istrative coordination and cooperation among all
natural resources boards and diversions. The State
Engineer and the Division of Water Resources are
within the Department (see Figures 1 and 2).
The State Engineer's duties encompass all matters
involving the appropriation of water, including
assisting the district court in the adjudication of
water rights. This office is charged with the gen-
eral administrative supervision of the waters of the
state (U.C.A. §73-2-1). The State Engineer can
appoint water commissioners to assure the proper
237
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GOVERNOR
J
DEPARTMENT OF NATURAL RESOURCES
Division of:
State Lands
Parks & Recreation
Oil, Gas & Mining
Great Salt Lake
Provo-Jordan River Parkway Authority
Utah Geological & Mineral Survey
Wildlife Resources
Divisions Administered
by Board of the Same
Name
Division of Water Rights
(State Engineer)
Division of Water
Resources
Figure 1: Organization of Utah Department of Natural Resources.
( GOVERNOR J
NAT
DEPARTMENT OF NATURAL RESOURCES
Coordinating Council
Executive Director
Administration
Section <
DIVISION OF WATER RIGHTS
State Engineer
Assistant
ittorney Genera
Business Sectionl-
Deputy Sta
Central
Section
Area
Section
M
Adjudication and
Water Management
I Distri
e Engineer j
aution I
I Appropriation
I Records |
If-
Vernal
• 1
Salt Lake
Lower Sevier-
Western Utah
Weber River-
County
Utah Lake
Jordan River
||
Logan
-,|
Price
Cedar City
Figure 2. Organization of Utah Department of Water Resources.
238
-------
distribution of water among the various users. The
commissioner is paid by the water users on a pro rata
basis. The State Engineer also has supervision over
the construction, repair, and operation of dams to
insure safety and protect property (U.C.A. §73-5-1
to 73-5-14).
The Division of Water Resources operates under the
Board of Water Resources which is a policymaking
group appointed by the Governor. The Division
administers a revolving fund program to finance
water conservation and development projects.
15.3.2 Judicial Bodies
District courts are involved in the adjudication
process in Utah. Utah does not have special water
courts.
15.3.3 Water Users and Their Organizational Structure
Districts—
Irrigation districts may be organized in the interest
of conserving and putting to beneficial use the public
waters of the state and to prevent undue waste of such
waters (U.C.A. §73-7-1).
Upon recommendation of the State Engineer, or 50 or a
majority of landowners, the Governor will propose the
organization of an irrigation district (U.C.A. §73-7-1).
A water conservation district is established by a petition
and is filed with the Board of County Commissioners. It
must be signed by the Governor or by 50 or a majority
of the landholders (U.C.A. §73-7-2).
The Board of Directors allots available water to each
40-acre tract not above an amount set by the State
Engineer (U.C.A. §73-7-27). The Board of Directors
may also allocate waters in times of shortage (U.C.A.
§73-7-27).
15.4 POLLUTION CONTROL
The Water Pollution Control Committee is responsible
for water quality control and to accomplish this it is
given broad powers to develop programs to prevent,
control and abate new or existing water pollution
(U.C.A. §73-14-4). The Committee may adopt standards
of purity and quality for streams and may classify
such streams consistent with the most reasonable present
and future uses. Violation of a Committee order results
in a hearing and in the issuance of an order to correct
the violation.
The State Engineer is also given the power to prevent
the pollution of waters in the state (U.C.A. §73-2-1).
He can also reject applications to appropriate if the
use would unreasonably affect public recreation or the
natural stream environment (U.C.A. §73-3-8).
REFERENCES
Anderson, Mark H., "The Efficient Use of Utah's
Irrigation Water: Increased Transferability of Water
Rights," Utah Law Review. 1975, p. 158.
Dewsnup, Richard L. and Jensen, Dallin W., A Summary-
Diqest of State Water Laws, a report to the National
Water Commission, Washington, D.C., 1973.
Haws, Frank W., A Study of Water Institutions in Utah
and Their Influence on the Planning. Developing and
Managing of Water Resources. Utah Water Research
Laboratory, 1973.
Hutchins, Wells A. and Jensen, Dallin W., The Utah
Law of Water Rights. October 1965.
, Interim Report on State Water Plan, Staff
Report No. 6, Division of Water Resources, Dept. of
Natural Resources, Utah, 1970, p. A-3.
."Irrigation Survey of 1974," Irrigation Journal,
Vol. 24, No. 6, Nov./Dec., 1974.
Thomas, George, "The Development of Institutions
Under Irrigation With Special Reference to Early Utah
Conditions," 1920.
Trelease, Frank J., "The Concept of Reasonable Bene-
ficial Use in the Law of Surface Streams," 12
Wyoming Law Journal 1, 1957.
. Water Conservation Agencies of the State of
Utah, prepared by the Department of Natural Resources,
1968.
239
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APPENDIX A REPORT 16
WASHINGTON
16.1 HISTORICAL BACKGROUND
Water law in Washington is characterized by both
riparian and appropriation rights. Initially, the
riparian doctrine was adopted as the basic water law
of the state, although rights to water flowing through
public land could be acquired by diversion and use.
Though the water law in Washington has undergone changes
through the years, recent developments in Washington
indicate an awareness of both the emerging environmental
ethic and the need to develop the waters of the state.
From 1965 to 1974, however, the irrigated acreage
increased from 1,279,745 to 1,569,000 ("Irrigation
Survey, 1974," Irrigation Journal. Vol. 24, No. 6,
Nov./Dec., 1974T
The unusual geographic characteristics of Washington,
a relatively arid eastern section contrasted with a
moist, mild western section, led to adjustments in the
law to accommodate irrigation projects in the eastern
part of the state. In 1917, Washington adopted the
appropriation doctrine as the exclusive method of
acquiring the right to the use of surplus surface
waters of the state (W.R.C. §90.03.010).
The beneficial use concept manifested itself in a
number of early court decisions involving riparian
rights. One such decision indicated that riparian owners
were to be protected when future appropriative issues
were considered. This was done by requiring persons
who desired to condemn water to take the needs of
riparians into account for the present and for a
reasonable time in the future (State ex rel Liberty
Lake Irri. Co. v. Superior Court. 47 Wash. 310, 91 P.
968, 1907).Some confusion arose over the phrase
"reasonable time." Later cases held that the riparians
who desired to make use of some water at a future time
could not prevent a person from making an immediate
use of the water (State el rel South Fork v. Superior
Court. 102 Wash. 460, 173 P. 192, 1918).
The 1967 Water Right Claims Act corrected this problem.
This Act required that riparian uses be adjudicated
with appropriation rights and have a priority assigned
them. It ended the possibility that, in Washington,
a consumptive use could be established by means of a
riparian right. Therefore, unless a water right has
been adjudicated, assigned a priority and beneficially
used, a riparian owner has no standing to object to
the issuance of a permit for surplus!water in a
stream (Brown v. Chase. 22 Wash. 243, 60 P. 403, 1900).
This assumes "surplus water" to mean water in excess
of base flows. Presumably a citizen has standing to
sue if base flows are not maintained in streams.
The situation is different when considering riparian
, rights on lakes. The same rules apply with respect
to consumptive use in that the right must be adjudicated
and assigned a priority date. However, if the right is
nonconsumptive (bathing or boating), the riparian owner
has standing to complain if an unreasonable use leaves
what was formerly a lake in the condition of a mud flat
(Geddls v. Parrish. 1 Wash. 587, 21 P. 314, 1889).
This right of nonconsumptive riparians right to complain
is not as clearly established regarding owners on a
stream.
The reasonable use concept of riparian rights governs
in Washington (Hunter Land Co. v. Langenour. 140
Wash. 558, 250 P. 41, 1926). At one time it was held
that riparians have coequal rights to the use of the
water regardless of the time they came onto the
stream (Hunter Land Co. v. Langenour, 140 Wash. 558,
250 P. 41, 1926).This is no longer relevant since
riparian rights are now assigned priorities along
with appropriative rights.
16.2 SUBSTANTIVE LAW
16.2.1 Property Rights in Water
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 beneficial use
(Rigney v. Tacoma Light and Water Co., 9 Wash. 576,
38 P. 147, 1094).Private rights of ownership do not
attach to the corpus of the water as long as it re-
mains in the stream (Rigney v. Tacoma Light and Water
Co.. 9 Wash. 576, 38 P. 147, 1894). Waters of a non-
navigable stream are considered to be part of the
soil over which they flow (Colburn v. Winchell, 97
Wash. 27, 165 P. 1078, 1917J:
Once the water has been diverted and conveyed else-
where, it becomes personal property (Dunsmulr v. Port
Angeles Gas, Water, Electric Light and Power Co.,
24 Wash. 104, 63 P. 1095, 1901; Madison V. McNeal.
171 Wash. 669, 19 P.2d 97, 1933). In Thompson v.
Short (6 Wash. 2d 71, 106, P.2d 720), the Washington
Supreme Court held that a claimed right to the flow
of water whether in its natural state or in an arti-
ficial channel is appurtenant to the land upon which
it is used and is considered as real property. The
use of water for irrigation, mining and manufacturing
purposes is a public purpose (Wash. Const. Art. XXI,
§1).
A right is a power, privilege, faculty, or demand,
inherent in one person and incident upon anothei—
a power of free action (Black's Law Dictionary, 4th
Edition). The right to use water is a usufructuary
right, i.e., the right of enjoying a thing, the prop-
erty of which is vested in another. 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. Therefore, the
term usufructuary must be limited by defining one's
corresponding duty to the water. The word "duty" is
a correlative of a right, whenever there exists a
corresponding duty upon some other person or upon all
persons generally (Black's Law Dictionary, 4th
Edition).
16.2.2 Acquisition of Rights
Riparian Rights—
Riparian rights were acquired with the acquisition of
riparian land. The water right which came with the
land existed only for the quantity of water being ben-
eficially used, or which could be placed in beneficial
use within a reasonable time (Brown v. Chase, loc.
cit.; State v. American Fruit Growers, 135 Wash. 156,
237 P. 498, 1925). Beneficial use limitation was
imposed to define the extent of the right after the
right has been acquired. Since 1967 there has been
no recognition of consumptive riparian rights
accompanying the purchase of land. Beneficial use
is a condition precedent to the continued ownership
of a right to divert water (Water Rights Claims
240
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Registration Act, §90.14.020). In Proctor v. Sim
(134 Wash. 606, 236 P. 114, 1925), the Washington Sup-
reme Court ruled that riparian rights do not exist in
navigable waters because the state owns the bed of
the stream, therefore, a private landowner does not
adjoin the water.
Appropriation Rights—
An appropriative right is a right to divert and make
use of water (Madison v. McNeal, loc. cit.). It is
a usufructuary right (Ibid.~)^The quantity of water
beneficially used is the basis and limit of the
right, not the water which is diverted from the
stream (Miller v. Wheeler, 54 Wash. 429, 103 P. 641,
1910; OrteT vT"Stone. 119 Wash. 500, 205 P. 1055,
1922). Washington law provides that prior appropri-
ators "first in time" are "first in right" (W.R.C.
§90.03.010). The first appropriator is entitled to
that quantity of water first appropriated to the
exclusion of subsequent claimants. When a valid
appropriation is made, the right becomes vested
(Lawrence v. Southard. 192 Wash. 287, 73 P. 2d 722,
1937).The appropriation system is the exclusive
method of acquiring rights to the use of surplus
water. This method of appropriating water rights
was provided by the water code of 1917 (W.R.C.
§90,03.010 to 91.03.480).
To initiate a water right under the code, an applica-
tion for a permit must be filed with the Director of
the Department of Ecology (W.R.C. §90.03.250 (Water
Code—1917 Act, §90.03.010 to .480)). For an appli-
cation to be approved, the Director must determine if
there is surplus water in the source, and that the
proposed use will not conflict with existing rights
nor prove detrimental to the public interest
(W.R.C. §90.03.290). The project works, which must
be completed with due diligence and within the time
prescribed by the Director (W.R.C. §90.02.320),l
when completed, and the water when placed to benefi-
cial use result in a certificate being issued by the
Director (W.R.C. §90.03.330). This certificate is
recognition of the perfected water right.
Ground Water--
A ground water code provides that those statutes
governing the appropriation and beneficial use of
surface waters are applicable to ground water (W.R.
C. §90.44.020). Ground water is defined as "all
waters that exist beneath the land surface or beneath
the bed of any stream, lake, or reservoir or other
body of surface water, whatever may be the geological
formation or structure in which the water stands or
flows, percolates or otherwise moves" (W.R.C. §90.44.
035). This definition includes ground water artifi-
cially made available in a ground water storage basin
by irrigation waste water (W.R.C. §90.44.035 and 90.
44.040). The significance of including ground water
under the rules applicable to surface water is that
applications for a permit to appropriate ground water
must be made in a manner similar to applications for
permits to appropriate surface water. This includes
some irrigation waste water. The earlier rule with
respect to percolating waters was that it was subject
to reasonable use by an overlying landowner (Evans v.
Seattle. 182 Wash. 450, 47 P.2d 984, 1935).
In case of a conflict between a ground water appropri-
ator and a surface water appropriator, the owner of
the surface water right has superiority over any
JThe facts in each case determine what due dili-
gence is. See In re Alpowa Creek, 129 Wash. 9, 224
P.29, 1924).
subsequent right granted in the ground water (W.R.C.
§90.44.030). The effect of the ground water code on
earlier rights, prior to the passage of the code, is
unclear. It is not clear what effect the code has
on an overlying landowner who was making use of perc-
olating waters prior to the passage of the code. The
Water Rights Registration Act (W.R.C. §90.14.010)
appears to have some effect on the claims of ground
water users to the extent that a right not claimed
would be lost.
The procedure for processing a ground water applica-
tion is the same as that governing surface waters
(W.R.C. §90.44.060). Permits for ground water may
not be granted beyond the capacity of a ground water
basin. This determination is to take into account
rasonable or feasible pumping rates (in new develop-
ments), or a reduction of pressure (as with artesian
developments). Permits may not be approved if the
Director determines that a new permit would impair
an existing right (W.R.C. §90.44.070). Once the
application is approved, the works constructed, and the
the water placed to beneficial use, the certificate
evidencing a perfected right is issued by the Director
(W.R.C. §90.44.080).
The ground water code makes provision for the record-
ing of any right vested prior to the enactment of the
law. Any person who applied ground water to beneficial
use prior to or within three years after the effective
date of the act is entitled to such a certificate
evidencing the ground water right. This certificate
has the same effect as a permit granted under the
provisions of the ground water code. It has priority
as of the date of the earliest beneficial use of
water (W.R.C. §90.44.090).
Prescriptive Water Rights--
Riparian rights are affected by the doctrine of
adverse use as they can be lost under the principles of
this doctrine. A person claiming the rights of another
by adverse possession has to prove open and notorious
exclusive adverse use for a continuous period of ten
years (Smith v. Hechanicky, 123 Wash. 8, 211 P. 880,
1923). The burden of demonstrating adverse use
falls with the person asserting it and must be clear
and convincing (In re Antanum Creek, 139 Wash. 84,
245 P. 758, 1926); Rogers v_._.Cation. 9 Wash. 2d 369,
115 P.2d 702).
With regard to appropriative rights, the Washington
legislature has provided that no rights to the use
of surface or ground water affecting either appropri-
ated or unappropriated water may be acquired by pre-
scriptive or adverse use (W.R.C. §90.14.220).
Preferences--
Use of water for natural or domestic purposes appears
to be a preferred use. Domestic uses include water
for both household purposes and for domestic animals
(Hunter Land Co. v. Langenour, loc. cit.). Water
may be used for domestic purposes to the point of
drying up the supply (Nielson v. Sponer, 46 Wash. 14
89 P. 155, 1907). It is of interest to note that
water for municipal purposes is not included in the
definition of a riparian right (Cartier Van Diesel v.
Holland-Horr Hill Co.. 91 Wash. 239, 157 P. 687,
T916T
16.2.3 Adjudicating Water Rights
Washington has a statutory procedure which provides
for a comprehensive adjudication of rights among
users of water from a common source. This procedure
is initiated by a petition of one or more users.
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This petition is filed with the Director of the Depart-
ment of Ecology. Upon filing, the Director is to de-
termine whether the public interest will be best
served by such a determination. If such a determi-
nation is made, a statement of the facts and a map
of the sources being investigated are filed in the
Superior Court of the county in which the water source
is situated or, in case the water is situated in
more than one county, then the supervisor will determine
which county is more convenient to all. The state-
ment is to contain the names of all persons known to
claim a right from the source involved. It also con-
tains a brief statement of the facts necessitating
such a determination (W.R.C. §90.03.110).
Once the statement is filed, a summons is issued
directing all water users to file a statement setting
forth the nature and extent of their rights (W.R.C.
§90.03.120). If the owner or claimant of water is
unknown, service is made via publication (W.R.C. §90.
03.130, 90.03.170).2
Once the service of suimons is completed, testimony
is heard by the Director regarding the claims of the
individual users (W.R.C. §90.03.160). Upon comple-
tion of this phase of the investigation, a transcript
of the testimony is prepared along with the Director's
report andall exhibits which had been received as evi-
dence. A time is then set by the Superior Court for a
hearing on the Director's report. All water users
are notified of this time (W.R.C. S90.03.190). If
no exceptions are filed, the court enters a decree
determining the rights according to the evidence
and the report of the Director. If, however, excep-
tions are filed, the court may, in its discretion,
take further evidence. The right of appeal from the
Superior Court decision is to the Supreme Court of
Appeals (W.R.C. §90.03.200). Upon final determina-
tion, the Director issues a certificate to each person
entitled to the use of the water. This certificate
describes the nature and extent of the water rights
determined (W.R.C. §90.03.240). After proper legal
service, failure of a person to appear and submit
proof of his claim results in an estoppel barring that
person from asserting any right to the use of water
from the source adjudicated (W.R.C. 590.03.220).
In addition to this statutory procedure, a person
aggrieved by anyforder, decision or determination
of the Director or any water master may, after
exhausting administrative remedies, appeal the
decision to the superior court in the county where
the use is situated. The appeal must be initiated,
however, within twenty days of the order, or deter-
mination. The burden is on the user to prove that
the decision was incorrect. The statute provides
that the decision of the Director or water master
is prima facie correct.
The Water Right Claims Registration Act (W.R.C.
§90.14.010)--
Under the Washington water code, it was difficult to
quantify and protect riparian rights. This problem
arose from a directive in the code providing "that
none of this provision shall lessen, enlarge, or
modify the existing rights of any riparian owner or
any existing right acquired by appropriation or
otherwise" (W.R.C. §90.03.010). The Water Rights
2Service by publication involves publication in
a newspaper of general circulation printed and pub-
lished at the county seat of each county in which any
portion of the water is situated, once a week for 6
consecutive weeks.
Claims Registration Act is an attempt to protect early
appropriation rights (established by custom and use),
riparian rights, and all rights difficult to evaluate
and define in light of unrecorded rights. Recorda-
tion of rights would help determine the amount of
surplus water available for new appropriations. The
Water Rights Claims Registration Act was passed in
1969 to "provide adequate records for the efficient
administration of the state waters, and to cause a
return to the state of any water rights which are
no longer exercised by putting said water to benefi-
cial use" (W.R.C. §90.14.010).
All persons claiming a right to withdraw and benefi-
cially use water from either a surface or ground
water source were required to file a claim with the
Department of Ecology prior to June 30, 1974. This
registration requirement did not apply to any water
right based upon a previously issued permit or certi-
ficate (W.R.C. §90.14.041). Under the law, the right
claimed had to be described in detail (W.R.C. §90.
14.051 and 90.14.061). Failure to file a claim under
this Act constituted a conclusive presumption of a
waiver of any right, title or interest in the water
(W.R.C. §90.14.071). It is important to note that
the claim filed did not constitute an adjudication of
the right to use water; it was merely a registration.
The claim was, however, admissible in the general
adjudication procedure as prima facie evidence of a
period of use and the quantity of water diverted.
This was subject to the condition that the claim was
evidence only if the quantities of water in use and
the time of use when a controversy is mooted are sub-
stantially in accord with the times of use and quant-
ity of water claimed in the statement of claim (W.R.
C. §90.14.081). Providing notice to all potential
claimants was a problem. The state, however, pro-
vides for notice by publication, use of radio and
television broadcasting, posting a notice in each
county courthouse in the state, and by mail from the
county treasurer's office of each county (W.R.C.
§90.14.101). In addition, the Department of Ecology
was required to establish a water rights claims
registry for claims filed (W.R.C. §90.14.111).
The practical effect of this legislation has not
been impressive. All persons desiring to preserve
a use or a water source have registered claims. Some
of these claims have no validity or are inflated.
The result is that many streams and rivers are over-
appropriated on paper. The statute is only a regis-
tration of claims and not an adjudication. Little
has been accomplished because the conflicting claims
have yet to be property evaluated.
16.2.4 Conditions of Use
Beneficial Use—
The Water Code and Ground Water Code demonstrate the
legislature's intent, that the state's water resources
are to be put to their most beneficial use, and a
record is to be made of these usages so as to assure
a continuing beneficial use (RCWA 90.03.010 et. seq.,
90.14.010 et. seq., 90.44.010 et. seq.; In re
Stranger Creek and Tributaries in Stevens County, 77
Wash. 2d 649, 466 P.2d 508, 1970). The phrase Vne-
ficial use" is not susceptible to easy definition.
However, a statute (W.R.C. §90.03.040) provides that
all persons shall be provided that quantity of water
which is reasonably necessary for the irrigation of
his land, and that this irrigation is to be accomp-
lished by the most economical method of artificial
irrigation to the land in question, according to the
usual methods of artificial irrigation employed in
the vicinity where the land is situated. In all
242
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cases, the court is the determining body as to what is
the most economical method of irrigation (Ibid.).
Though both riparian and appropriative rights are
recognized, they are subject to many of the same con-
straints. A discussion of each is appropriate. To
begin with, beneficial use has been used to define
the extent of appropriation rights, and also ripar-
ian rights which are used to divert and use water
from a stream (W.R.C. 190.03.010; see also In re
Stranger Creek, loc. cit.). This beneficial
use limitation does not apply to riparian uses which
do not remove water from the stream. These uses
would include boating, swimming, and other recrea-
tional uses in the stream (W.R.C. §90.14.020).
In Haberman v. Sander (116 Wash. 703, 7 P.3d 567,
1932), the court stated that, in arid regions,
water should be put to its most important and bene-
ficial use. The only consideration required by the
state for use of water for irrigation or agricul-
tural purposes is the beneficial application of water
upon the land for the production of crops (Lawrence
v. Switzer, 21 Mont. 523, 55 P. 32, 1898).
16.2.5
Manner in Which Rights Hay Be Adversely
Effected
Relinquishment—
Legislation was passed in 1967 providing for the
relinquishment of water rights. The statute applies
to both riparian and appropriation rights, and to sur-
face water and ground water (W.R.C. §90.14.130 to
90.14.210, 1974 Supp.). The statute provides that any
person entitled to divert or withdraw waters of the
state through any appropriation, or by custom, or
general adjudication, who abandons the sane, or who
voluntarily fails to use water without sufficient
cause for five successive years after the date of
act (1967), relinquishes the right or the portion of
the right not used. A relinquished water right
reverts to the public and is available for reappro-
priation (W.R.C. §90.14.160, 90.14.180 and 90.14.210).
The person whose right is threatened is to be notified
by the Director to show why the right or a portion
of it should not be relinquished (W.R.C. §90.14.130).
The relevant statute provides a list of sufficient
causes which will prevent a loss of the right in the
case of nonuse. Sufficient cause includes drought,
service in the armed forces, pendency of a suit of a
claim on the right for future development (W.R.C. §90.
14.140). A decision of the Director is subject to
judicial review. However, the decision of the Director
in finding that a right has been relinquished is deemed
by statute to be prima facie correct (W.R.C. §90.14.
190). The burden is on the user to prove the decision
incorrect or arbitrary.
Abandonment—
As noted, relinquishment results from the nonuse of
water without sufficient cause. Abandonment requires
an intent to voluntarily give up the right as well as
nonuse of the water. It would be irrelevant in an
action involving nonuse of water for five years.
(see Appendix 1). It could be used in a case where
nonuse of water has occurred and the user apparently
intends to give it up. Rather than let the water go
to waste, the state or a private person by suit could
attempt to declare the water right abandoned so as to
establish the right to use it. Both the elements of
a nonuse and intent, however, are necessary (Sander
v. _BuVj_. 76 Wash. 1, 135 P. 489, 1913).
Adverse Possession--
No appropriative rights to use surface or ground
water may be lost by adverse possession (W.R.C. §90.
14.220).
Condemnation--
Beneficial use of water is a public use of water in
Washington. The result is that any person may
exercise the power of eminent domain to condemn an
inferior use for a superior use. The determination
is left to the district court to decide which is of
greater public benefit. The one exception to this
is that no one may acquire irrigation water by con-
demnation once such an action could deprive any person
of the quantity of water which would be necessary to
fully irrigate lands using methods common to the area
(W.R.C. §90.03.040). The point is of importance in
that it appears that the statute does not require a
user to use the best, most efficient or most produc-
tive irrigation method. Washington recognizes power
production as being inferior to irrigation use if
the water is to be solely used for power production,
but it recognizes also that domestic stock watering
uses are superior to irrigation. A riparian owner's
right to water for future irrigation purposes could
be condemned for failure of the owner to bring addi-
tional land under cultivation within a reasonable
period of time. Since 1967, a riparian owner will
lose his water right if it has not been registered.
The statute in question (W.R.C., Titles 89-91)
provides that, even if it is registered, it may be
condemned for failure to bring additional land under
cultivation within a reasonable period of time.
Patentees of land which abutted a nonnavigable lake
acquired title to the center of the lake- Riparian
rights attached, became appurtenant as incidents of
^ownership, and became vested property rights which
were entitled to protection of Washington Constitu-
tion, Article I, Section 16. Section 16 protects
against the taking or damaging of property for public
or private use unless just compensation is paid
(Petition of Clinton Water District of Island County,
218 P. 2d 309, 36 Wash. 2d 284).
Enforcement of Beneficial Use or Waste Concepts--
An appropriator is limited to that quantity of water
specified in his permit that is being beneficially
used and any unused water is subject to the relin-
quisliment statute (W.R.C. §90.03.330 and 90.44.090).
Ho appropriative right is valid unless it is pursuant
to a beneficial use. It is the intent of the legis-
lature that the state's water resources should be
put to their most beneficial use (RCWA 90.03.010
et. seq., 90.14.010 et. seq., 90.44.010 et. seq.).
Statutes in Washington provide that all persons shall
be provided that quantity of water which is reasonably
necessary for the irrigation of his land and this
irrigation is to be accomplished in the most economical
method of artificial irrigation (W.R.C. §90.03.040).
16.2.6 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. Thus, an upstream junior appro-
priator cannot use water if that use would deprive
the downstream senior of the appropriated quantity.
Thus, 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.
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A duty exists to provide for the proper outflow of
water to a natural watercourse (Wilber Development
Corp. v. Les Rowland Construction Inc., 83 Wash. 2d
871, 523 P. 2d 186).The policy of integrating
environmental protection with a water resources man-
agement program is illustrated by two recent statutes.
The first is the Water Resources Act of 1971 which
sets forth legislative guidelines for future water
resource management. This Act contains the instruc-
tion that securing maximum net benefits for the people
of Washington will constitute total benefits less
total costs, including opportunities lost (W.R.C.
§90.54.020(2)). Among the concepts found in the
Water Resources Act (W.R.C. §90.54, 1971), which are
unusual in an appropriation state, is the policy that
peruvial rivers and streams must retain those base
flows necessary to provide for the preservation of
wildlife, fish, scenic, aesthetic, and other environ-
mental values and to maintain navigational values.
Along with this is directive that lakes and ponds
should be retained substantially in their natural
condition (W.R.C. §90.54.020(3)(a)).
The policy regarding base flows is a concept not
found in most of the western states utilizing an
appropriation doctrine. It is in conflict with the
traditional appropriation policy that the state will
grant a permit to appropriate water so long as there
is unappropriated water available. The Washington
policy is that minimum flows shall be maintained
regardless of whether there is demand for water. This
Act, however, has not had dramatic results. One indi-
vidual familiar with the situation estimates that only
one river (which has an abundance of water) has had a
minimum flow declared. It would appear that no user
has been inconvenienced by this statute (Personal
Interview with Ralph Johnson, College of Law, Uni-
versity of Washington, Seattle, Washington, March
20, 1975).
Consistent with recognition of the need for minimum
base flows is the recognition that the waters of the
state are of interest outside the state. Such inter-
ests represent a desire to move water from the state.
This is seen by the residents of Washington as con-
trary to the public interest (W.R.C. §90.54.010).
In particular, the states of the Colorado River Basin
have shown a desy-e to divert a portion of the flow
of the Columbia River into the Colorado River Basin
("A Summary Digest of State Water Laws, 1971).
Salvaged and Developed Waters—
In Shotwell v. Dodge (8 Wash. 337, 36 P. 254, 1894),
the Washington Supreme Court held that when loss be-
comes extreme due to the porous character of the soil,
the irrigator must take reasonable means to lessen the
amount of.loss. Any water which is saved by his
efforts should inure to the one who has expended time
and effort in this conservationist effort.
Provisions for Transfer of Water Rights and
Diversions—
Water which has been applied to a beneficial use is
appurtenant to the land, or the place where the use
was made, in Washington. A change may be in the point
of diversion, place or use or nature of use of water
if the change is made without injury to other users
(W.R.C. §90.03.380). The owner of the right must
file an application to transfer with the Department
of Ecology and notice must be given by publication
prior to the transfer. A certificate permitting
the transfer is issued by the Secretary of the
Department of Ecology if a finding is made that the
transfer can be accomplished without injuring other
rights (Ibid.). Such transfers may also apply to
seasonal or temporary changes and the rotation of
the available water, so long as the changes are
accomplished without detriment to existing rights
(Ibid.).
Any person objecting to a proposed change has to
prove that the change would prejudice or impair
existing rights. For example, in one situation, a
change was denied when it was proved that change
reduced the subirrigation and the flow of the stream
on adjacent lands, even though a temporary permit
had been issued (Haberman v. Sander, 166 Wash. 453,
7 P.2d 563, 1932). A water right is an interest in
realty appurtenant to the land and passes to the
grantee when the land is conveyed (Drake v. Smith.
54 Wash. 2d 57, 337, P.2d 1059).
Assignment—
Washington statute provides that a water right (or an
application for a water right) may be assigned to
another provided that (in the case of an application
for water right) the prior written consent of the
supervisor of water resources of the Department of
Ecology be obtained. An assignment is subject to
the conditions of the original appropriation permit.
The assignment must be recorded at the state Depart-
ment of Ecology office (W.R.C. §90.03.310). This
assignment is subject to the general rule that injury
to the use may not occur by such assignment (W.R.C.
§90.03.380).
The noninjury limitation on changes of a use, the
place of use or point of diversion limits any transfer
potential when existing rights are partially or wholly
determined by return flows. The Department of Ecology
does not require an applicant for a transfer to prove
a lack of injury as a result of the transfer. The
burden of proving that injury would occur rests with
the Department of Ecology in its review of the appli-
cation. However, where an objection is filed
against a transfer, the Department of Ecology appar-
ently has some discretion as to whom will bear the
burden of proof. This is based upon conjecture, and
on the language in the case of Brown against Chase
(Brown v. Chase, loc. cit.).3
State law permits seasonable or temporary changes in
the place of use or point of diversion with, again,
the provisal that no harm results to existing rights.
Also, users are permitted to pool their collective
rights and rotate their use subject to the non-
injury constraint and administrative approval (W.R.C.
§90.03.390). How the noninjury constraint is imple-
mented is questionable since any water master would
be under the handicap of not knowing whether a user
Providing that where application is made for
a permit to appropriate waters on nonriparian lands,
if the hydraulic engineer (analogous to the present
Department of Ecology) finds an abundant supply of
water, he may require the riparian protestant to show
that the proposed appropriation will hurt him, but
if the hydraulic engineer finds that the water supply
is limited, he may require the applicant to show that
his proposed appropriation will not injure existing'
rights. Of course, under either method, the super-
vising authority must be in the field to know what
demands the water supply is capable of meeting.
-------
has a valid right or not since there are no recorda-
tions of the water rights in Washington, only a
recordation of those who claim them.
It is clear that there are few opportunities for the
transfer of water rights to higher valued irrigation
uses. An example of the difficulties that may arise
from a transfer would be the proposed exchange of 6,000
acre-feet of water from the Kittitas Reclamation Dis-
trict to the City of Ellensburg, Washington. The ex-
change was published in the local newspaper of Ellens-
burg once a week for two consecutive weeks (see
Ellensburg Daily Record, Feb. 7, 1968, p. 8, for the
notice). The proposed alteration was to change the
point of diversion from its present point to approx-
imately 36 miles above the original point of diversion.
An objection was filed by the Field Solicitor acting
on behalf of the United States, along with some of the
downstream districts. These objections were filed on
the basis that the proposed transfer would change the
character of the water use from nonconsumptive to
consumptive use. Downstream users felt that there
was a possibility of injury before the objection
was filed. Four years later, after the facts were
known, the transfer was permitted. The point being
that the districts often cannot get along as well as
might be hoped, and this type of judicial harrass-
ment with full knowledge that objections will neces-
sarily result in protracted negotiations thereby
causing a loss of productivity, is not the most
desirable activity one could imagine.
16.2.7 Waste Water Disposal and Drainage
Disposal of Waste—
Diffused surface water occurs from rain and melting
snow which is diffused over the surface of the earth
and which forms no part of a watercourse (King County
v. Boeing Co., 62 Wash. 2d 545, 384 P.2d 122, 1936).
These waters are not subject to appropriation while
in their diffused state, but can be used by the owner
of property on which they arise (Thorpe v. Spokane,
78 Wash. 488, 139 P. 221, 1914).
Flood waters not within the banks of a stream are sur-
face waters and a common enemy against which each land-
owner is entitled to protect himself (DeRuwe v.
Morrison, 28 Wash. 2d 797, 184 P.2d 273]kA landowner
cannot collect and artificially discharge diffused
surface water upon adjoining lands in greater quanti-
ties than the natural flow (Cass v. Dicks, 14 Wash.
75, 44 P. 113, 1896).
Rule governing proportionate liability where two or
more persons contribute to the maintenance of a nuis-
ance was inapplicable in an action for damage to
crops which had occurred from the seepage from an
irrigation canal (Robillard v. Selah--Moxee Irr. Dist..
54 Wash. 2d 582, 343 P.2d, 565).
16.3 ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS
16.3.1 State Water Agencies
The general administrative supervision of Washington's
water resources is vested in the Department of Ecology.
The general responsibility of the Department, accord-
ing to the statute, is:
To establish a single state agency with the
authority to manage and develop our air and
water resources in an orderly, efficient
and effective manner, and to carry out a
coordinated program of pollution control
involving these and related land sources
(W.R.S., §43.21 A.020).
The administrative head of the Department, the
Director, is appointed by the Governor. The Director
is responsible for carrying out the powers and duties
of the Department (W.R.S. §43.21 A.050). There is,
however, an Ecological Commission created (W.R.S.
§43.21 A.170) to advise the Director on matters re-
lating to: (1) the position taken by the state before
any interstate body or agency on matters affecting
the quality of the environment of the state; (2) the
development of the state policies with regard to any
comprehensive environmental quality plan; (3) proce-
dures for considering and granting variances;
(4) proposed legislation relating to the Department;
and (5) any other matter related to the Department
and requested by the Director (W.R.S. §43.21 A.190).
The Department is to develop and implement a compre-
hensive state water resources program (W.R.C.
§90.54.040). It has the power to carry out the
policies of the Department including reserving water,
setting it aside for future beneficial use, or with-
drawing it from appropriation while data is developed
for sound decision-making (W.R.C. §90.54.050).
To aid in the distribution of water rights, the
Director may appoint water masters among those having
rights to the same source. These are state employees
and are responsible to the Director (W.R.C. §90.03.
060). To facilitate the distribution of water
rights, the Director may designate water districts
and may adjust the boundaries of each district as
conditions dictate (W.R.C. §90.03.060). The primary
responsibilities of the water master are to divide
a water supply among the users according to their
respective rights and priorities and to prevent a
use of water in excess of the amount to which a user
is legally entitled (W.R.C. §90.03.070).
jdater users are required to install and maintain
adequate measuring devices and control facilities
(W.R.C. §90.03.360). It is unlawful to interfere
with the regulation of these works or with storage
or water carriage facilities (W.R.C. §90.03.410 and
90.03.420).
16.3.2 Judicial Bodies
Washington law does not provide for special water
courts.
16.3.3 Water Users and Their Organizational Structure
Districts-
Irrigation districts organized under Section 87.03.
010 to 87.03.915 are corporations with a public
purpose; and while subdivisions of the state, they
differ from counties and like political units in that
they function for profit and are formed for a business
not a governmental purpose.
A water district cannot appropriate water from a
nonnavigable lake for domestic use as a matter of
right. They must secure a permit and the state could
impose conditions on that permit (Petition of Clinton
Water District of Island County, 218 P.2d 309, 36
Wash. 2d 284).
An irrigation district may be organized
or maintained for any or all of the
following purposes:
(1) The construction or purchase of works,
or parts of same, for the irrigation of
lands within the operation of the district.
(2) The reconstruction, repair, or improve-
ment of existing irrigation works.
(3) The operation or maintenance of exist-
ing irrigation works.
245
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(4) The construction, reconstruction, repair
or maintenance of a system for diverting con-
duits from a natural source of water supply
to the point of individual distribution for
irrigation purposes.
(5) The execution and performance of any
contract authorized by law with any department
of the Federal Government or of the state of
Washington, for reclamation and irrigation
purposes.
(6) The performance of al1 things necessary
to enable the district to exercise the
powers herein granted (W.R.C. §87-03.750).
There is generally a contractual provision limiting the
use to the irrigation of those lands which are classi-
fied as "irrigable" within the boundaries of the dis-
trict. Nonirrigable lands are those lands of a district
which cannot be furnished with sufficient water for
successful irrigation (W.R.C. §87.03.750). Thus,
irrigable lands are those lands within a district
which can be furnished with a sufficient amount of
water for successful irrigation. The contract terms
usually limit the place of use to the lands classi-
fied as "irrigable," and this is defined very narrowly.
For example, for those the district is limited to a
maximum of 72,000 irrigable acres, and water may be
delivered only to lands which have been classified as
irrigable with the approval of the Secretary of the
Interior (personal interview with Henry Vancik,
Sunnyside, Washington, Roza Irrigation District, March
24, 1975). There are, however, situations when a
contract provides for an expansible area of use on the
condition that the amount of water delivered to the
district is more than can be beneficially used on the
irrigable lands of the district. If this condition
is met, then the district may extend its boundaries
for purposes of including greater areas of irrigable
lands in order that the water provided can be used to
its maximum efficiency (Land Development and Water
Use. 1972)
District water supply is made available to users on
a uniform basic allotment, usually three acre-feet
per irrigable acre. Additional water may be purchased
on an unlimited basis for a multiple of the basic
charge. There are exceptions to this general policy;
some of the districts' board of directors are empowered
to determine the cjiount of water to be delivered to
each acre, contingent upon payment of the basic
charge, while some directors are empowered to set
minimum quantities of water available to land, but
are limited to the maximum amount which may be de-
livered there without charging an additional rate for
any excess water. Still others allocate witer on the
basis of ownership of shares in the district, which
represent shares in the water supply.
Regardless of the method of allocation, the board of
directors is under an obligation to operate their
system (irrigation) with the goal of making available
to each irrigable acre within the district the quant-
ity of water to which it is entitled. This is subject
to the option of refusing to deliver water to parties
who fail to pay their share of operation, maintenance,
or construction repayment assessments.
In addition to constraints on the districts by state
laws or by contracts, the board of directors of each
district is constrained by the by-laws which govern
their allocation and transfer of water to the indivi-
dual user. The latitude and variation necessary in
contract requirements is reflected in the district
by-laws.
Drainage districts may be created under Section
85.06.010 if five or more landowners within a county
desire such an organization. Drainage districts have
the power of eminent domain (W.R.C. §85.06.070),
and the express power to effectuate improvements in
their drainage system (W.R.C. §85.06.390). En-
forcement of these powers is provided for in Section
85.06.400 which allows suit in a superior court to
compel the performance of duties by the issuance of
mandatory injunctions.
Improvement districts (W.R.C. §85.08.010 to 85.08.
900) may be created to construct improvements for
the drainage, sewage, or protection from overflow of
any land upon the petition of four or more landowners
(W.R.C. 585.08.020 and 85.08.040). Improvement dis-
tricts are also given'the power of eminent domain
(W.R.C. §85.08.190).
16.4 POLLUTION CONTROL
16.4.1 Water Quality
The responsibility for water quality control is also
a responsibility of the Department of Ecology (W.R.S.
§43.21 A.020 and 43.21 A.060). The Director is
authorized to promulgate rules and regulations per-
taining to the quality of waters of the state (W.R.C.§
90.48.035). The Water Pollution Control Act prohibits
the discharge of any matter into the water of the
state which will result in pollution (W.R.C. §90.48.
080). All plans and specifications for the construc-
tion of new sewer systems or the extension of existing
systems must be approved by the Director (W.R.C.
§90.48.110).
Any person conducting a commercial or industrial
operation which results in the disposal of waste into
the waters of the state must obtain a permit for such
a discharge (W.R.C. §90.48.160). This requirement
extends to counties, municipalities, or public
corporations operating domestic sewage treatment
facilities (W.R.C. §90.48.162). Such permits are
initiated by formal application. Provision is made
for notice and public hearing before a permit request
is acted upon (W.R.C. 590.48.170). The Director is
to issue a permit unless he finds that the proposed
discharge will pollute the waters of the state in
violation of public policy (W.R.C. §90.48.180). The
public policy of the state as defined by the Act is:
To maintain the highest possible standards
to insure the purity of all waters of the
state consistent with public health and
public enjoyment thereof;' the propagation
and protection of all wildlife, birds, game,
fish and other aquatic life; and the industrial
development of the state, and to that end
require the use of all known and reasonable
methods by industries and others to prevent
and control the pollution of waters of the
state of Washington (W.R.C. §90.48.010).
Provision is made for modification of a permit if con-
ditions change (W.R.C. §90.48.195). A permit may be
terminated if it is determined that there was a
misrepresentation in obtaining it, a violation of
the conditions in the permit, or a material change
in the waste being disposed of (W.R.C. §90.48.190).
In addition, there is authority for the Department of
Ecology to establish water drainage of water pollution
within such basins (W.R.C. S90.48.270). These plans
cannot be adopted until a public hearing has been
conducted. Once adopted, however, they must be com-
plied with (W.R.C. §90.48.280).
246
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Persons aggrieved by a decision of the Director may
appeal to the courts (W.R.C. §90.48.145). Persons who
violate the Water Pollution Control Act or any final
order of the Director are liable in damages for the
injury or death of fish, animal, or vegetation caused
(W.R.C. §90.48.142).
Though the above provisions appear to show a concern
for water quality in the state of Washington, there are
few decisions dealing with the quality element of a
water right—if, indeed, such an element exists.
There is a difference of opinion among individuals in
Washington as to whether a water quality right exists.
One individual stated that there was no quality element
to be found in a water right in Washington (personal
interview with Ralph Johnson, College of Law, Univer-
sity of Washington, Seattle, Washington, March 20,
1975). It was the opinion of this person that the
debris cases found were no authority for improving
a water quality element.
On the other hand, another individual (personal inter-
view with Charles Roe, Senior Assistant Attorney General,
State of Washington, Dept. of Ecology, Olympia,
Washington, March 25, 1975) was equally sure that a
quality element existed in Washington as part of a
water right. To support this opinion, a case was
cited (Matches and Cowche Ditch Co. v. Weikel, 87
Wash.) which dealt with a complaint by a group of
irrigators concerning siltation of their irrigation
works. The Washington Supreme Court refused to grant
relief to the group because the pollution complained
of did not interfere with jhe existing use. The
interference was nonpoint in the sense that the silt-
ation could not be traced to a single identifiable
area. The court, however, was careful to point out
that interference with a water right by pollution
was a matter to be decided on a case-by-case basis.
From this, it can be argued that a water quality
element does exist in Washington as part of a
water right.
A distinction between "debris cases" and water quality
cases does not make sense to this writer. Pollution
is simply the addition of foreign natter into water.
Worrying about the size of the matter makes little
sense. In explanation, irrigation may be hindered
by blockage of a ditch by silt. It may also be
hindered by blockage of the water to absorption by the
roots by too much salt. But, the key is that the
water is being stopped from getting to the crop. The
size or type of blockage seems too fine a hair to
split.
Moreover, if there is no quality element to be con-
cerned with, then the Washington legislature has
labored mightily to speak to, protect and discuss
something which does not exist.
The Environmental Policy Act of 1971 defines the
policy of the state as being future-oriented. This
Act considers the responsibilities of each generation
as a trustee of the environment for succeeding genera-
tions (W.R.S.§43.21 C. 020). It seeks to attain the
widest range of beneficial uses of the environment
possible without degradation and to preserve important
historic, cultural and natural benefits. It is also
aimed at achieving a balance between population and
resource use which will permit high standards of liv-
ing in a wide sharing of life's amenities (Id., §2(f)).
The legislature has also recognized a fundamental,
inalienable right to a healthful environment and the
responsibility of each individual to contribute to the
preservation and enhancement of that environment
(Id., (3)).
247
The Act further provides that the policies of state
agencies and local governments are to reflect state
policies and guidelines. It establishes procedures
which are to be followed, in a systematic and inter-
disciplinary approach, with respect to planning and
decision-making regarding matters which have an
impact on the environment (W.R.S. §43.21 C.030).
To insure that the policy of the state will be carried
out, the Department of Ecology was created in 1970.
This Department replaced the Department of Water
Resources, the Water Resources Advisory Council, the
Water Pollution Control Commission, and the Air Pollu-
tion Control Board. All of the powers, duties and
responsibilities of these former agencies regarding
water right administration, air and water quality con-
trol are vested with the new Department. Washington
appears to have recognized one of the critical prob-
lems of many western states by consolidating the
responsibilities and functions of many different
agencies under one "umbrella" agency.
In an action for damages for the pollution of a stream,
all those who contributed to the common injury may be
joined as defendants, so the several liabilities of
such tort feasors can be determined in one action and
the extent of each person's liability may be more
accurately determined (Snavely v. City of Goldendale,
10 Wash. 2d 453, 117 P.23 22).
In Tyler y. Van Aelst (9 Wash. App. 441, 512 P.2d
760, 1973), the Washington appellate court held that
the defendant's conduct in distributing the creek
bottom, muddying the waters was negligent but the
plaintiff's were contributory negligent by improperly
screening their water system (Tyler v. Van Aelst,
-loc. cit.).
Where the defendants, through logging operations,
permanently polluted a stream in which plaintiffs
had water rights, and from which they took water for
domestic use by means of a community water system,
plaintiffs were entitled to damages for permanent
depreciation in value of their properties and for
personal discomfort and annoyance caused by pollution
of the water (Drake v. SmHn, loc. cit.).
REFERENCES
Dewsnup, R. L. and D. W. Jensen, eds., "A Summary
Digest of State Water Laws," a report to the National
Water Commission, Washington, D.C., 1971, p. 761.
, "Irrigation Survey, 1974," Irrigation Journal.
V6TT24, No. 6, Nov./Dec., 1974.
, Land Development and Water Use. Yakima River
Basin, Washington, Appendix 6B, p. 9, Washington
Agricultural Experiment Station, Pullman, Washington,
1972.
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APPENDIX 1 REPORT 16
M.R.C. s90.14.140 "Sufficient cause" for nonuse defined — Rights Exempted
For the purposes of this chapter, "sufficient cause" shall be defined
as the nonuse of all or a portion of the water by the owner of a water
right for a period of five or more consecutive years where such nonuse
occurs as a result of:
(1) Drought, or other unavailability of water;
(2) Active service in the armed forces of the United States during a
military crisis;
(3) Nonvoluntary service in the armed forces of the United States;
(4) The operation of legal proceedings;
(5) Federal laws imposing land or water use restrictions or acreage
limitations, or production quotas.
Notwithstanding any other provisions of this Act, there shall be no
relinquishment of any water right:
(1) If such right is claimed for power development purposes under
W.R.C.§90.16 and annual license fees are paid in accordance with
W.R.C. §90.16; or
(2) If such right is used for a standby or reserve water supply to
be used in time of drought or other low flow period so long as
withdrawal or diversion facilities are maintained in good operating
condition for the use of such reserve or standby water supply; or
(3) If such right is claimed for a determined future development to
take place either within fifteen years of the effective date of
this Act, or the most recent beneficial use of the water right,
whichever date is later; or
(4) If such right is claimed for municipal water supply purposes
under
(5) If such waters are not subject to appropriation under the
applicable provisions of W.R.C.S90.40.030 as now or hereafter
amended.
243
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APPENDIX A REPORT 17
WYOMING
17.1 HISTORICAL BACKGROUND
Wyoming is a semi-arid, Rocky Mountain state of 97,914
square miles receiving an annual precipitation ranging
from five inches in the Red Desert to 45 inches in the
Snowy Range. Average annual precipitation is ten to
fifteen inches. The State is in the unique position
of being at the headwaters of four major drainage
basins. Two-thirds of the state is east of the Con-
tinental Divide and drains into the Missouri River
Basin, principally through the Big Horn, Powder and
North Platte Rivers. The remaining one-third of the
State drains into the Columbia River Basin through
the Snake River, Colorado River Basin through the
Green River and Great Basin through the Bear River.
(See Figure 1, Wyoming Nat'1. Resources. 1967;
Wyoming FrameworkWater Plan, 1973.)
Approximately 2.6 million acre-feet are presently de-
pleted from a total stream flow of 17.3 million acre-
feet, leaving 14.7 million acre-feet to flow into
neighboring states (Wyo. Framework Water Plan, 1973,
p. 21). Consumptive use by agriculture is the highest
of all uses, amounting to 82% of stream depletions,
and 62% of ground water depletions (Ibid., p. 31 and
p. 49) on the approximately 1.8 million irrigated
acres (Irrigation Survey, 1974). There is an addi-
tional 1.5 million acres in the state with valid
water rights but not presently irrigated. These
"paper water rights" came into existence partly
through the lack of accurate land and flow measure-
ments early in Wyoming's agricultural development and
water right filings. Irrigation history goes back to
the 1850's around Fort Bridger, with the first re-
corded filing on 302 acres in 1862 (Wyoming's Nat'l
Resources. 1967, p. 34-35).
Ground water use is still in its infancy, with only
216,000 acre-feet per year being pumped for all uses.
It is interesting to note a conclusion by the
drafters of the Framework Water Plan, that how much
ground water will eventually be recovered will depend
upon economics, water quality, geohydrology, and le-
gal constraints, with the latter having "the greatest
influence on the ultimate recovery" (Wyo. Framework
Water Plan, 1973, p. 45).
From its very beginning, Wyoming has been a prior ap-
propriation doctrine state that has had a significant
influence upon the majority of western states in the
area of water administration. In 1869, the Wyoming
Territorial Legislature recognized the right to appro-
priate water {Wyo. Laws 1869, ch. 8, sees. 28, 29, ch.
22, sees. 15 to 18). In Frank y. Hicks (4 Wyo. 502,
35 P. 475, 1894), and Moyer v. Preston (6 Wyo. 308,
44 P. 845, 1896), the Wyoming Supreme Court expressly
rejected the riparian concept of water rights and
stated that the appropriation doctrine was more suit-
able to the area.
In 1886, the Wyoming Territorial Legislature enacted
legislation which required an appropriator to file a
statement in the county records, to begin construction
within 60 days after the date of filing and to prose-
cute the work diligently until it is complete (Wyo.
Laws 1886, ch. 61). In 1888, this law was amended to
require the county filing to be made within 90 days
after the commencement of construction (Wyo. Laws
1888, ch. 55).
The basis for Wyoming's current system of water allo-
cation and administration is found in Wyoming's Con-
stitution, which was adopted in 1890. The constitu-
tion states that "the water of all natural streams,
springs, lakes or other collections of still water,
within the boundaries of the state, are thereby de-
clared to be the property of the state" (Wyoming
Constitution, Article VIII, section 1). These enact-
ments provided for the earliest integrated administra-
tive-judicial procedures under which the administra-
tive body made a determination of all relative rights
on a stream (Wyo. Laws 1890-91, ch. 8).1 This deter-
mination was final unless appealed to the courts. It
was this system that impacted many western states.
In 1885, the Territorial Legislature created the Of-
fice of Territorial Engineer, which gave him general
supervision over division and diversion of stream wa-
ters and over water commissioners (2nd Annual Report
of the Territorial Engineer, 1890, p. 14). Three
years later, Dr. Elwood Mead became Wyoming's first
Territorial Engineer. He brought with him first-hand
and often frustrating experience as Assistant State
Engineer of Colorado during the initiation of that
state's promising efforts in state water rights ad-
ministration. Under his direction, the provisions on
water contained in the 1890 Constitution were formu-
lated and adopted. In brief, the system contains all
four functions: (1) allocation and (2) distribution
of water, and (3) administration and (4) adjudication
of water rights within the jurisdiction of an admin-
istrative body. Thus a simple and functional system
was created to grant "permits" to water right appli-
cants upon approval of the State Engineer and his
four division engineers sitting as the Board of Con-
trol in a quasi-judicial proceeding. This differed
from Colorado's system by placing the administrative
functions prior to the judicial role, leaving the
courts to review the quasi-judicial decisions of the
Board.
Colorado had adopted a system (which still remains
unchanged to this date with the exception of placing
the judicial activities for water under special water
courts since 1969) in which water rights are adjudi-
cated by courts and administered by the State Engi-
neer. Subsequently, 15 of the 17 Western states
adopted modified versions of Wyoming's system. In
1973, Montana created a centralized system of water
administration similar to the Wyoming pattern.2
Numerous changes and enactments have occurred since
the basic code of 1890, among which the following are
important. In 1909, the "no-change" appurtenancy
doctrine, tying water rights to specific lands, was
added to cure the evils of speculation (Wyo. S.L.
1909, chap. 68 § 1). Within 50 years, 10 exceptions
to this statute have developed (see Trelease, 1960).
In 1947, the basic ground water act for Wyoming was
adopted and has been subsequently amended several times
(W.S.A. 41-121 to 147). The Wyoming Water Conser-
vancy Act was enacted in 1957 (W.S.A. § 41-77 to 117)
to enable multiple-purpose water resources develop-
ment (Brosz. 1970). In 1967, the State Engineer was
'See W.R.S. § 41-165 to 231.
2For an interesting statement of the background and
development of water administration in the West, see
Waters & Water Rights, Vol. I, section 23, ed. by
R. E. Clark, Allen Smith Co., 1967.
249
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made "responsible for coordination of Wyoming's water
and related land resources" (W.S.L. 1967, ch. 138)
and to plan for the development of water allocated to
Wyoming under the Yellowstone River Compact, Colorado
River Compact and Upper Colorado River Compact (W.S.L.
1967, ch. 137).
During the past decade, numerous amendments and addi-
tions to the State's water laws have been designed to
protect existing rights that are being properly used.
In 1974, additional criteria for transferring a water
right were added to the law, which is designed to protect
vested water rights, but also makes transfers more dif-
ficult (W.S.A. §41-4.1). The five-year automatic aban-
donment statute for nonuse was modified in 1977 to
enable water right holders of a reservoir permit to
apply to the State Board of Control for an extension
of not more than five years (W.S.A. §41-47.1).
17.2 SUBSTANTIVE WATER LAW
17.2.1 Property Right in Water
The Wyoming Constitution provides that "the water of
all natural streams, springs, lakes, or other collec-
tions of still water, within the boundaries of the
state are thereby declared to be the property of the
state" (Wyoming Constitution, Article VIII, Section
1). In Lake DeSmet Res. Co. v. Kaufman (75 Wyo. 87,
292 P.2d 482), and Hunziker v. KngwltorT (78. Wyo. 241,
322 P.2d 620. 1955), the Wyoming Supreme Court stated
that water owned by the State is held in trust for the
use of its people under public control exercised in
the public interest.
Water flowing in a natural stream is not the subject
of private ownership. Private rights that attach
thereto are strictly usufructuary rights to take the
water from the stream into physical possession for a
beneficial use. Thus, private rights of ownership do
not attach to the corpus of the water so long as it
remains in the stream in its natural state (Wyoming
Hereford Ranch v. Hammond Packing Co.. 33 Wyo. 14, 236
P. 764, 1925).
The basis of all water uses in Wyoming are appropri-
ative, which is a usufructuary right limited to a ben-
eficial use (W.S.A. §41-2). The right to use water
is a valuable property right but is subject to certain
limitations on the manner of use and transfer, which
will be discussed below. In Hughes v. Lincoln Land Co.
(27 F. Supp. 972, D. Wyo., 1939), a federal district
court in Wyoming stated that a water right is a prop-
erty right which cannot be abridged without an in-
fringement upon the owner's constitutional nights.
This right is a real property right, subject to owner-
Ship and disposition by him as in the case of other
kinds of real property (Merrill v. Bishop. 74 Wyo.
298, 287 P.2d 620, 1955)'The title which the appro-
priator holds is the right to divert and use a speci-
fied amount of water for a beneficial purpose and not
a right to the corpus of the water (Farm Investment Co.
y. Carter. 9 Wyo. 110, 61 P. 258, 1900). The water
diverted does become his personal property while under
his control, for the use(s) that it was appropriated.
The appropriator is entitled to a continuing use of
such waters that have been appropriated, but not be-
yond that reasonably required and actually used
(Arizona v. California. 56 S. Ct. 848, 298 U.S. 558).
Therefore, a prior appropriator can receive his entire
supply before junior rights will be satisfied, but the
prior appropriator cannot interfere with junior rights
if he is receiving the quantity and quality of water
to which he is entitled(Mitchen Irr. Dist. v.
Whiting, 59 Wyo. 52, 136 P.2d 502, 1943).
17.2.2 Acquisition of Right
General —
A water right can be acquired only by filing an appli-
cation for a permit to make the appropriation with
the State Engineer (W.S.A. § 41-201).3 Every appli-
cation must have a map or plat which depicts the pro-
posed works. Section 41-201 (W.S.A.) allows any per-
son, association, or corporation to initiate a water
right. Municipal corporations have the same rights
by appropriation and acquisition of existing rights
may also be accomplished by the power of eminent do-
main (Wyo. Const., Article XIII, section 5). In
Sherck v. Nichols (55 Wyo. 4, 95 P.2d 74, 1939), the
court held that an appropriation must be for a bene-
ficial use, but it need not be for the benefit of the
applicant himself. The extent of the right is limited
by the beneficial use requirement and statutory duty
of water, discussed in section 17.2.4 below.
The State Engineer must approve all applications which
are made in the proper form and which contemplate the
application of the water to a beneficial use and will
not impair existing rights (W.S.A. § 41-203). The
State Engineer must reject any application if the
proposed use will conflict with existing rights, will
be detrimental to the public interest, or if there is
no unappropriated water available (W.S.A. § 41-203).
If an application is approved, actual construction
must begin within one year and completion within five
years. Completion in less than five years may be re-
quired by the State Engineer or if good cause is
shown, an extension may be obtained (W.S.A. § 41-206).
Once construction is complete and the water has been
placed to a beneficial use, the applicant must submit
proof of the appropriation to the division superin-
tendent (W.S.A. §41-211). Notice of the proof is
published and if there is any objection a hearing
will be held and the evidence transmitted to the
Board of Control (W.S.A. §41-203). Testimony and
evidence received during the hearing will be sent to
the Board of Control (W.S.A. § 41-179). If the Board
is satisfied that there are no conflicts and the ap-
propriation was completed in accordance with the per-
mit, then they will issue a certificate of appropria-
tion which is recorded with the county clerk. Deci-
sions of the Board may be appealed to the district
court (W.S.A. §41-216). The certificate of appropri-
ation is then recorded with the county clerk where
the land upon which the water is used is situated and
this constitutes evidence of an adjudicated right to
use water (W.S.A. §41-21). Section 41-213 allows
for the correction of any errors in permits or certi-
ficates, provided that the total area of lands does
not exceed the area which was described in the origi-
nal permit (W.S.A. §41-213). The priority of the
right dates from the time the application was filed
(W.S.A. S 41-212). Any person aggrieved by the en-
dorsement of the State Engineer may within 60 days
appeal the endorsement to the Board of Control whose
decisions can be applied to the district court (W.S.A.
§ 41-216).
Priority of application for beneficial uses gives the
better right and no appropriation will be denied ex-
cept when demanded by the public interest (Wyo. Const.
Article VIII section 3). Control in water is vested
in the state and in providing for its use the State
must guard all of the various interests involved (Wyo.
Const. Article I section 31).
3See Regulations and Instructions, Part I. Surface
Water, from the State Engineer's Office, Revised Jan.
T974T
250
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Ground Water--
Underground water is that water under the surface of the
land or under the bed of any stream, lake, reservoir, or
other body of surface water (W.S.A. §41-121). The State
Engineer prescribes rules and regulations to administer
the ground water act and can require reports from well
drillers and water users. The State Engineer can also
establish standards for well construction, the preven-
tion of waste or pollution of ground water and can ini-
tiate action to secure compliance. If waste of water
is occurring or nay occur, then a critical ground water
area may be designated (W.S.A. §41-129).
A ground water appropriator may change the location of
his well without losing his priority. If the right has
been adjudicated, then approval of the Board of Control
must be had before the effectuation of a change and if
the right is nonadjudicated, then approval must be ob-
tained from the State Engineer (U.S.A. §41-134). Ground
water rights may be adjudicated as other water rights
(W.S.A. §41-212.1).
Acquisition of a right to appropriate ground water must
be through the filing of an application for a permit with
the State Engineer. The application will be granted in a
noncontrol area if the use is beneficial, in the public
interest and the means of diversion adequate (W.S.A.
§41-138). The Engineer will approve applications in
control areas if there is unappropriated water avail-
able, the means of diversion is adequate and if the use
would not prove to be detrimental to the public interest
(W.S.A. §41-140).
Prescriptive Water Rights—
In Campbell v. Wyoming Development Co. (55 Wyo. 347,
100 P.2d 124, 1940), the Wyoming Supreme Court stated
that there was some doubt whether a prescriptive right
could be established in Wyoming because of legislation
which required that all rights must be initiated by the
filing of an application with the State Engineer.
Preferences—
Wyoming recognizes preferred uses which include rights
for domestic uses, transportation, steam power plants
and industrial uses. Existing rights which are not pre-
ferred may be condemned to supply water for preferred
uses (W.S.A. §41-3). Preferred uses are ordered in the
following manner. First—water for drinking purposes
for both man and beast; second—water for municipal
purposes; third—water for the use of steam engines and
for general railway use, water for culinary, laundry,
bathing, refrigerating (including the manufacture of
ice), for steam and hot water heating plants and steam
oower plants; and fourth—industrial purposes except
that no right of condemnation extends to uses for indus-
trial or power plant purposes (W.S.A. §41-3). Provision
is made for securing approval of a change if the new use
will be a preferred use, after public notice, inspection
and hearings {W.S.A. §41-4). Ground water is subject to
the same preferences as fround in Section 41-3, except
that domestic use and use for stock have the highest
priority.
This statutory ordering of types of uses into a prefer-
red status does not affect the diversion and distribu-
tion of water according to priority. Regardless of
their preferential status, water will be diverted accord-
ing to the priority of the right. The preference is
used a) as a criterion in deciding the allocation of
scarce water supplies between different competing uses,
and b) to enable the preferred user to condemn and com-
pensate nonpreferred water rights (W.S.A. §41-3).
**See Regulations and Instructions. Part II. Ground
Water and Part III, Water Well Minimum Construction
Standards, from the State Engineer's Office, Revised
Jan. 1974.
17.2.3 Adjudicating Water Rights
Wyoming has two statutory adjudication procedures to
define the extent of existing rights for a water
source (W.S.A. §41-165 to 192)—stream-by-stream and
continuous adjudication. The Board of Control must
decide the order streams are to be adjudicated in
(W.S.A. §41-165). It then must post notice of the
date when the State Engineer will begin a measurement
of the stream and ditches (W.S.A. §41-166). The
division superintendent must mail notice to each party
who has a recorded claim to the waters of the stream.
The claim must state the date when the State Engineer
will begin his examination of the stream and ditches
and the date when testimony will be taken and closed
(W.S.A. §41-167). Notice by registered mail was held
to be sufficient to meet due process requirements in
Farm Investment Co. v. Carpenter (9 Wyo. 110, 61
P.258, 1900).Continuous adjudications are made at
the request of the water right holder.
Users must file a verified claim which details the
nature of the right claimed. If the user fails to
submit a claim, then the claimant will be barred from
asserting his rights.
In Laramie Irrigation and Power Co. v. Grant (44 Wyo.
392, 13 P.2d 235, 1932), the Wyoming Supreme Court
held that Board decisions adjudicating priority is
prima facie correct. The adjudication is final and
binding on all users who joined in or were made par-
ties to the proceeding and awards cannot be enlarged
(Campbell y. Wyoming Development Co., 55 Wyo. 347,
100 P.2d 124, 102 P72T7457 T940T.But, Anita Ditch
Co.__v._ Turner (389 P.2d 1018, 1964) held that the
Board cannot adjudicate the rights of persons who
are not parties to the proceedings. Wyoming courts
have jurisdiction to quiet title to water rights and
provide equitable or legal relief between users
(Campbell v. Wyoming Development Co., 55 Wyo. 347,
100 P.Zd 124, 102 P72d 745, 1940).
17.2.4 Conditions of Use
Beneficial Use-
Beneficial use is the basis, the measure and the lim-
it of the right to use water (W.S.A. § 41-2). Wyo-
ming statutes provide no firm definition for bene-
ficial use. The use of water is limited not only by
the amount which has been specifically appropriated
but also by the amount which can be used beneficially.
Priority of appropriation for beneficial use gives
the better right (Wyo. Const. Art. VIII, section 3).
An appropriation which is not useful is of no effect
under Wyoming law (Ide v. United States, 263 U.S.
497, 1924). In Quinn v. John Wjntaker Ranch Co.
(54 Wyo. 367, 92 P72^568, T939) the Wyoming Supreme
Court stated that a water user is limited to a quan-
tity which is reasonably necessary for a beneficial
purpose and therefore the user of a direct flow can-
not divert water in excess of beneficial require-
ments and an owner of a reservoir cannot store more
water than can be beneficially used (Kearney Lake.
Land and Reservoir Co. v. Lake DeSmet Res. Co., 475
P.2d 548, 1970).
Duty of Water-
Wyoming applies a dual criteria to determining the
quantity of water to be allocated under a direct flow
water right for irrigation purposes. The first is
that the amount cannot exceed that which can be bene-
ficially used. The second is a statutory duty of
251
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water criteria for direct use of the natural unstored
flow. The duty of water is one cubic foot per second
for each 70 acres of land (W.S.A. i 41-181). This
duty does not pertain to stored water.
Surplus Watei—
Section 41-181 further provides that, where there is
excess water in a stream it can be divided among the
appropriators of that stream in proportion to the
acreage covered by their permits provided it is bene-
ficially used. This excess water, termed "surplus wa-
ter" throughout the rest of the section prescribing
the extent and manner of allocation, is limited to an
additional. one cubic foot per second per 70 acres
for all pre-March 1,1945, adjudicated water rights
(W.S.A. i 41-182 to 187). The priority date of sur-
plus water rights is March 1, 1945, and they are
senior to any water rights acquired after March 1,
1945.
Recently the Wyoming Supreme Court upheld the state's
water surplus law (W.S.A. S 41-181 through 41-188) in
Budd v. Bishop (543 P.2d 1368, Wyo. 1975).
Rotation of Water Use—
Section 41-170 allows users to rotate the use of water
if it can be done without injury to other appropri-
ators to effect a more economical use of available
water.
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.
In Binning v. Miller (55 Wyo. 451, 102 P.2d 54, 1940),
the court held that waste and seepage water is private
water as long as it is on the lands of the user who
originates it. A user cannot be compelled to maintain
.a wasteful practice but when waste or seepage water
has escaped from the original appropriator, it can be
appropriated by someone else (Bower v. Big Horn Canal
Association. 77 Wyo. 80, 307 P.2d 593, 1957). In
Quinn v. John Whitaker Ranch Co. (54 Wyo. 367, 92 P.2d
568, 1939), the court ruled that in the case of terri-
torial decreed rights the use of water in excess of
the amount prescribed by Section 41-181, the duty of
water limitations, is not necessarily a waste of water.
17.2.5 Manner in Which Rights May Be Adversely
Affected
Abandonment & Forfeiture—
Wyoming, like so many other Western States, commingles
the use of the terms abandonment and forfeiture in
their statutes. Normally, forfeiture refers to the
statutory provision providing for automatic loss of
water rights after a term of nonuse, with or without
prior notice of forfeiture action by the state agency
to the water right holder. An abandonment requires an
intent to give up or forsake the right along with the
nonuse of water. If the intent does not exist, there
can be no abandonment (Hard v. Yoder. 355 P.2d 371,
I960). Abandonments are not favored and the burden of
proof rests upon the party who asserts that an aban-
donment has occurred (Laramie Rivers Co. v. LeVasseur.
65 Hyo. 414, 202 P.2d 680, 1949).
W.S.A. Sections 41-47.1 provides that where the holder
of an appropriation of water fails either intentional-
ly or unintentionally to use the water for a beneficial
purpose for five successive years, the right and all
its privileges are considered abandoned and forfeited.
However, a right cannot be lost by nonuse if the non-
use is caused by factors beyond the appropriator's
control (Yentzer v. Hemenway. 440 P.2d 7, 1968). The
right to cancel the whole appropriation also carries
with it the power to cancel a portion of the right
{Yentzer v. Hemenway. 440 P.2d 7, 1968). The owner
still retains title to his right until a forfeiture
has been formally declared (Horse Creek Conservation
Dist. v. Lincoln Land Co.. 54 Wyo. 320, 92 P.2d 572,
1939).In Ramsey v. Gottsche (51 Wyo. 516, 69 P.2d
535, 1937), the court stated that forfeitures are not
favored and should only be declared upon reasonably
clear and satisfactory evidence. These last two
cases seem inconsistent with the language of the
statute, particularly since the section was amended
in 1977, retaining the strong wording that who fails
to use his water rights for 5 successive years "is
considered as having abandoned the water right and
shall forfeit all water rights and privileges appur-
tenant thereto" (S.L. 1977, ch. 126, Act. no. 7).
The 1977 amendment provides an exception to the aban-
donment rule. Water right holders with an appropri-
ation for diversion and storage of water in reservoir
may apply to the Board of Control for an extension of
5 years to put the water to beneficial use (Ibid.).
The applicant must show he exercised due diligence,
but in spite of this, reasonable causes prevented
him from putting the water to use.
Forfeiture under the statute can be initiated by the
affected water user (W.S.A. 5 41-47.1(a)) or by the
State Engineer (W.S.A. 5 41-47.2). The Board of Con-
trol has original jurisdiction in water right aban-
donment proceedings (W.S.A. § 41-47.2). An individu-
al must submit his claim that certain water rights
should be abandoned to the Board. The Board nay re-
fer it to the division superintendent, upon which
water users whose rights are claimed to be abandoned
are notified that a hearing will be held on the mat-
ter. After the hearing the Board shall determine the
status of the rights and notify the parties by certi-
fied mail. Contestants to the Board's decision can
appeal to the courts for redress. Similar action is
taken when the initiation of abandonment is done by
the State Engineer, except that he cannot participate
as a voting member of the Board in deciding the
matter.
Condemnation—
Section 41-3 allows the condemnation of existing
rights which are not preferred to supply preferred
uses. Private property cannot be taken without just
compensation (Wyo. Const. Art. I sections 32 and 33).
Municipal corporations have the right of eminent do-
main to acquire water from prior appropriators upon
the payment of just compensation (Wyo. Const. Art.
XIII. section 5).
Enforcement of Beneficial Use on Waste Concepts—
A water use is limited to that quantity which is rea-
sonably necessary for a beneficial use (Quinn v. John
Whitaker Ranch Co.. 54 Wyo. 367, 92 P.2d 568. 1939).
While waste water has not been statutorily defined,
it can be defined as that water which is now lost
under current systems and practices but which might
be saved (Dewsnup, 1971). Wyoming statutes recognize
the existence of return flows and waste waters by
giving the division superintendent power to order the
construction of ditches to carry return waters to the
main stream (W.S.A. §41-58). Waste waters have been
held to be private water in Binning v. Miller (55
Wyo. 451, 102 P.2d 54, 1940) as long as it is on the
lands of the user who originates it. A user cannot
252
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be compelled to maintain a wasteful practice and once
this waste water has escaped from the original appro-
priator it may be appropriated by someone else (Bower
v. Big Horn. Canal Ass'n.. 11 Wyo. 80, 307 P.2d 593,
1957).
17.2.6 Legal Incentives and Disincentives for More
Efficient Water Use Practices
Irrigation Return Flow--
Irrigation return flows occur from deep percolation
caused by the excessive or over-application of water
to the land, seepage from conveyance systems and tail
water runoff. Waste and seepage waters which return
to the stream are considered to be return flows, be-
coming a part of the watercourse and subject to
reappropriation (Binning v. Miller, 55 Wyo. 451,
102 P.2d 54, 1940). Division superintendents are
given the authority to order the construction of suit-
able ditches to carry return waters from any ditch or
land to the main stream (W.S.A. §41-58).
In Wyoming Hereford Ranch v. Hammond Packing Co. (33
Wyo. 14, 236 P. 764, 1925), the court held that a
city's return flow from its sewage treatment works was
not encompassed within the city's right and could not
be recaptured by the city to the detriment of a down-
stream appropriator. However, as conversely held in
Sinning v. Miller (55 Wyo. 451, 102 P.2d 54,1940),
a water user could recapture waste water on his
land and reuse it on the same land.
Provisions for Transfer of Water Rights and
Diversions—
Wyoming is one of four Western states that still has a
strict provision prohibiting transfer of direct flow
rights. A statute, enacted in 1909, provides that a
water right for the direct use of the natural unstored
flow of any stream cannot be detached from the land,
place, or purpose for which it was acquired, except
for changes to preferred uses (W.S.A. § 41-2). How-
ever, this strict rule has been eroded by numerous
exceptions beginning with other legislation enacted
in the same year that the appurtenancy principle tying
water to land was adopted.5 Up to 1960, 10 exceptions
had been identified, which for all practical purposes
allow a water right in Wyoming to be transferred for
good cause and with approval of the Board of Control.
The exceptions are transfers for (1) domestic and
transportation purposes, (2) pre-1909 water rights,
13) rotation in use, (4) amendments to permits (un-
adjudicated water rights), (5) use of water from
another source when done by agreement between organi-
zations, (6) use of water on other lands when lands
to which a water right pertains become submerged lands
within a reclamation project, (7) steam power plants,
(8) industrial uses, (9) highway purposes and (10)
water stored in reservoirs (Trelease, 1960). In 1973,
the law was further amended to allow a holder or owner
of an adjudicated direct flow water right to store the
water in a reservoir (S.L. 1973, ch. 203, 5 1) so long
as no other Wyoming appropriator or user is injured or
affected by the storage of these waters (S.L. 1975,
ch. 177, § 1). The State Engineer can prescribe rules
and regulations to govern the process.
A change in use, or a change in the place of use will
be allowed if that quantity of water which is trans-
ferred does not exceed the amount of water historical-
ly diverted under the existing use, nor increase the
historic amount consumptively used, nor decrease the
''For an excellent discussion of the law and its excep-
tions, see Trelease, F. J., Severance ofjrfater Rights
from Wyoming Lands, A report to the Wyoming Legisla-
ture Research Committee, Research Report No. 2, Aug.
1960.
historic amount of return flow, nor injure other ex-
isting lawful appropriators in any manner (W.S.A. §
41-4.1).
The Board of Control must consider all facts which it
believes pertinent to the transfer (W.S.A. § 41-4.1).
Statutorily, the Board must consider:
(i) The economic loss to the community
and the state if the use from which
the right is transferred is
discontinued;
(ii) The extent to which such economic
loss will be affected by the new
use;
(iii) Whether other sources of water are
available for the new use (W.S.A. §
41.4.1).
Owners of rights to the use of any natural stream,
spring, lake or other collection of stillwater where
the source is insufficient to satisfy the rights or a
better conservation and utilization of the water can
be made, are authorized to enter into an agreement
for use of water from another source (W.S.A. § 41-5).
An exchange can also be made by the owner of stored
water for the direct flow of a stream if it can be
made without injury to others (W.S.A. § 41-42).
In Bard Ranch. Inc. v. Weber (538 P.2d 24, 1975 Wyo.),
the Wyoming Supreme Court held that where permission
to change a point of diversion downstream on a gaining
stream which was subject to the condition that no in-
jury to other appropriators would occur, it is the
duty of the other appropriators to demonstrate injury
by an appropriate proceeding before coming to court.
17.2.7 Waste Water Disposal and Drainage
Rain water, snow, and other forms of moisture which
arise upon the soil in the form of diffused surface
waters can be collected and used by the landowner
(State v. Hiber, 48 Wyo. 172, 44 P.Zd 1005, 1935).
However, once the water enters a watercourse, there
are two issues. The first pertains to the right to
use the water, the second to the right to protect
downstream lands from the harm it would cause. The
first issue has been the subject of the preceding
portion of this report, i.e., the nature of acquiring
a right under the appropriation doctrine in Wyoming
to use the water.
As to the second issue, it cannot be said for certain
which rule of drainage Wyoming follows. In 1904, the
Supreme Court seemed to follow the natural flow rule
(Ladd v. Redle. 12 Wyo. 362, 75 P. 691, 1904). The
court said a person could protect his lands by con-
structing embankments, but could not cast the water
on the lands of others, which is the common enemy
rule. Thus, lands located above this landowner would
have a right of servitude across his land.
But in 1960, the court discussed the several rules
and concluded it was not necessary to adopt any spe-
cific rule (Lee v. Brown. 357 P.2d 1106, 1960). Beck
and Ayde conclude that since this discussion was based
upon the gravity of harm that could occur if any spe-
cific rule were followed versus the utility of the
parties' activity, that the court would probably
adopt the reasonable use test when confronted with
the issue (Clark, Vol. 5, p. 577, 1972).
Wyoming statutes provide that reservoir owners are
liable for all damages which arise from leakage or
overflow of waters or by floods causing breakage of
reservoir banks (W.S. 1957, § 41-46). However, in
253
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Wheatland Irrigation District v. McGuire (537 P.2d
1128, 1974 Wyo.), the Supreme Court of Wyoming held
that this statute does not impose absolute liability
for damages caused by acts of God or public enemies
or malicious acts of third party saboteurs.
17.3 ORGANIZATIONAL AND ADMINISTRATIVE ASPECTS
17.3.1 State Water Agencies
Administration of water rights is vested in the Board
of Control and the State Engineer.6 The Board of
Control is made up of the State Engineer and the
superintendent of the four water divisions. The
Board supervises the appropriation, distribution and
division of the waters of the State (Wyo. Const. Art.
VIII, section 2). The State Engineer is the presi-
dent of the Board and must supervise the waters of
the State and the officers connected with the distri-
bution of water (Wyo. Const., Art. VIII, section 5).
See Figure 1.
The state is divided Into four water divisions, each
headed by a water superintendent who operates under
the control of the State Engineer to regulate the use
and storage of water (W.S.A. § 41-54, 55, 57). The
bSee Regulations and Instructions, Part IV, State
Board~of Control, from the State Engineer's Office.
Revised Jan. 1974. Also, examine Everybody's Guide
to Wyoming Water Administration in Hause and Cahill,
1967.
superintendents can also require that suitable
ditches exist to carry return or waste water back to
the main stream (W.S.A. § 41-58).
The four water divisions are divided into water dis-
tricts that are administered by water commissioners
(W.S.A. § 41-62). The commissioners must divide,
regulate and control the use of water among the indi-
vidual users (W.S.A. § 41-63). In order to accom-
plish this, the commissioner may regulate headgates
on ditches and the controlling works of reservoirs
(W.S.A. 5 41-64). Section 41-70 allows the rotation
of water among users to bring about a more economic
use of the water. Appeal of the commissioner's deci-
sion is made to the division superintendent and then
to the State Engineer and finally to the district
court (W.S.A. § 41-63J. Waters must be distributed
in accordance with adjudicated water rights (Quinn v.
John Whitaker Ranch Co., 54 Wyo. 367, 92 P.2d 568,
1939), but an adjudication is not essential for a
commissioner to act. Therefore, a distribution can
be accomplished even though a permit is unperfected
as well as with a certificate of appropriation
(Laramie Rivers Co. v. LeVasseur, 65 Wyo. 414, 202
P.2d 680, 1949).The commissioner's decision does
not constitute an adjudication of the user's rights
and is not binding upon the courts (Ryan v. Tutty, 13
Wyo. 122, 78 P. 661, 1904).
In any statutory adjudication of water rights, the
State Engineer must prepare a hydrographic survey and
Figure I—Functional Organization of the Wyoming State Engineer and Related Offices
CHART — STATE EMGIHEEK'S OFFICE
Interstate Streams and Compact
Cc.-oaissionors
stat.i Board of Exanining Engineers}
1 Vyoaiing Kat«r Planning Program}—
State Wcat&r Kodification Board
Henber
Water Conference
-
Missouri River Basin Conraicsion
Dear river Compact Comission
Pacific N.'.;. River Basin Cona.
(Alternate)
Pacific S.M. Inter-Agency Committee
Colo. River Basin Salinity Control
Fa run
Colo. River Basin Salinity Control
Wvisory Council
[Cove
State Engineer
Issuance of Permits
and General Supervision
of Haters of the
State
J_
President
State 'Board of Control
adjudication & Amendment
of Water Rights
J-
Water Division
Superintendents
Administration of
Water Rights
Hydrographor-Comalssioners
Hater Commissioners
Ass't Hater
Commissioners
Merijar
Bear River Compact negoti-
ating Conmittee
Colo. River Ccirmittee of 14
Western States Vatar Council
Yellowstone River Basin Compact Coma.
Snake River Compact Connission
Belle Fcnirchc River Compact Commission
tipper Colo. River Compact Commission
(Eng. Advisor)
Interstate Streams
Snow Surveys £ Stream Flow
Forecasts
Safety of Dams Program
USGS Coop Program
Flood Control
Groundwater Investigations
Topographic Mapping
Bator Rights Information Systc-
Groundviflter Advisory Ccramittcos
(Control Areas)
t statewide)
Deputy State Engineer
Ass't State Engineer |
Ground Water Geologist j
Special Assistant Attorney General!
\
1
Engineers
Technicians
Adnin. Ass't
Secretaries
Accountant
Other Employees
254
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the division superintendent must take the user's tes-
timony (W.S.A. § 41-172-41-180). The Board of Con-
trol will then enter its order which determines the
various individual rights (W.S.A. 5 41-181).
The State Engineer must also coordinate Wyoming water
and land resource planning and can enter into agree-
ments with United States agencies in order to accom-
plish this (W.S.A. § 41-1 ..6, 41-1.7).
Statutory provision is also made for a Division of
Water Development, which is a division within the
State Department of Economic Planning and Development
and cooperates with the State Engineer to develop a
State water plan (W.S.A. § 9.160.31). The division
may file applications to reserve water to be used
for industrial purposes, contract for furnishing in-
dustrial or municipal water and contract with the
Federal Government for the construction of water de-
velopment projects (W.S.A. § 9-160.31). Sections
41-480 to 41-485.1 provide for an interstate stream
commission which represents Wyoming's interests when-
ever the State negotiates with another State for the
apportionment of interstate waters.
17.3.2 Judicial Bodies
Decisions of the State Engineer are appealable to the
district court (W.S.A. § 41-63). In adjudication of
water rights the Board of Control's determination al-
so is appealable to the district court (W.S.A. § 41-
193). District court decisions are appealed directly
to the Wyoming Supreme Court.
17.3.3 Water Users and. JThejjr^ Organizational Structure
Individuals—
This term contemplates a single or natural person as
distinguished from a group or class, partnership, cor-'
poration or association (Black's Law Dictionary, 4th
Ed.). In providing for the appropriation of waters
in the State the purpose is to allow the public to
acquire rights to divert and use such waters. Arti-
cle 13 5 5 of the Wyoming Constitution gives municipal
corporations the same right as individuals to acquire
rights by appropriation.
Districts^--
Districts are corporations with a public purpose.
These districts differ from counties and like politi-
cal units in that they function for profit and are
set up for business, not a governmental purpose.
Wyoming statutes allow the creation of public dis-
tricts who have the responsibility to develop and con-
serve the State's water resources. These districts
include drainage districts (W.S.A. 5 41-355 to 479),
flood control districts (W.S.A. 5 41-118 to 120), ir-
rigation districts (W.S.A. § 41-269 to 323.18), public
irrigation and power districts (W.S.A. § 41-324 to
354), water conservancy districts (W.S.A. § 41-77 to
117), and water and sewer districts (W.S.A. 5 41-479.1
to 41-479.51).
Water conservancy districts are organized to conserve
water resources and provide for the greatest benefi-
cial use.7 The Districts are commanded to benefit
irrigated lands by stabilizing the flow of water in
streams and increasing flow and return flow to
streams (W.S.A. § 41-77e). The policy of the State is
set forth in section 41-77 g 1, to control, make use
of and apply to beneficial use all unappropriated wa-
ters in this state ... to obtain from water the
highest duty for domestic uses and irrigation of lands.
7See Brosz, EstabTTshing Water Conservancy Districts
in Wyoming, 1970.
Water commissioners of water districts have the power
to divide, regulate and control the use of waters
within his district. To effectuate such power the
commissioner is given authority to close headgates in
order to prevent waste or excess use. Persons ag-
grieved by a commissioner's decision may appeal to the
Division Superintendent, from there to the State
Engineer and finally to the district court (W.S.A. §
41-61).
A water commissioner's duties include the command to
divide waters, regulate headgates, regulate the con-
trolling works of reservoirs.
Wyoming statutes provide that:
(a) to bring about a more economical use
of the available water supply, it is law-
ful for water users owning lands to which
are attached water rights, to rotate in
the use of supply to which they may be
collectively entitled, or a single water
user, having lands to which water rights
of a different priority attach, may in
like manner rotate in use, provided that
all water rights subject to rotation are
in priority. Rotation of water will be
allowed only if it can be accomplished
without injury to other appropriators.
(b) Prior to the conmencement of any ro-
tation in the use of water pursuant to
this section, the owner or owners of the
water rights to be rotated shall file a
notice of intention to rotate with the
appropriate water commissioner, on the
form provided for that purpose by the
conmissioner, and shall obtain the water
commissioner's written approval which
shall be endorsed on the form.
(c) Performance of the rotation shall be
enforced by the water commissioner in ac-
cordance with the terms and conditions in-
cluded in the form signed and approved by
the water commissioner. The state engi-
neer may adopt such rules and regulations
as are necessary for him to efficiently
administer this section (W.S.A. § 41-70).
Formation of a company to construct ditches to convey
waters requires the specification of the stream from
which the water is taken, the line of proposed ditches
and the use to which the water will be applied (W.S.A.
§ 17-188).
A mutual water company is a nonprofit corporation that
owns diversion or storage works and delivers water at
cost to users who own its stock (Trelease, 1957). A
water commissioner has the power to divide the water
in a ditch among the partners or co-tenants (W.S.A. §
41-64, 41-252).
In Anderson v. Wyoming Development Co. 160 Wyo. 417,
154 P.2d 318, 1944), the Wyoming Supreme Court stated
that a company is under no duty to establish a de-
pendable supply or to limit sales of water rights to
the amount of land that can be irrigated with its sup-
ply. However, in Laramie Rivers Co. v. Watson (69
Wyo. 333, 241 P.2d 1080, 1952), the court protected
water right holders in a company by prohibiting the
sale of shares of stock where the water was barely
sufficient for the needs of present holders.
17.4 POLLUTION CONTROL
The Wyoming Environmental Quality Act (W.S.A. Chapter
9.1, Section 35-502.1 to .53) established the
255
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Department of Environmental Quality, which is composed
of two divisions, the Air Quality Division and the
Water Quality Division. No person, except with a
permit, can discharge any pollutant or wastes into the
waters of the state or alter the physical, chemical,
radiological, biological or bacteriological properties
of any waters of the state (W.S.A. § 35-502.18).
REFERENCES
Broz, D. J. Establishing Water Conservancy Districts
in Wyoming. Agricultural Extension Service, Univer-
sity of Wyoming, Laramie, Wyo. Extension Bulletin No.
330, Oct. 1970.
Dewsnup, R. L. Legal Aspects of Water Salvage. Re-
port to the National Water Commission, 1971.
Hennebyr, H. M. and K. L. Dierb, eds. Wyoming's
Natural Resources and Their Management. Wyoming Game
and Fish Department, Cheyenne, Wyo., 1967.
House, V. W. and T. E. Cahill, Everybody's Guide to
Wyoming Water Administration. Agricultural Extension
Service, University of Wyoming, Laramie, Wyo. Exten-
sion Bulletin No. 479, Oct. 1967.
Richard, P. A. Compacts. Treaties and Court Decrees;
Documents on the Use and Control of Wyoming|s Inter-
state Streams.Wyoming Water Research Institute,
University of Wyoming, Laramie, Wyo., 1971.
Stickley, Dennis C. Alternatives for Financing Water
Resources Development and Related Issues. Interde-
partmental Water Conference Finance Subcommittee,
State of Wyoming, Cheyenne, Wyo., Jan. 1976.
Trelease, Frank J. "The Concept of Reasonable Bene-
ficial Use in the Law of Surface Streams." 12 Wyoming
Law Journal 1, 1957.
Trelease, F. J. Severance of Water Rights from Wyo-
ming Land. Wyoming Legislature Research Committee,
Research Report No. Z, Aug. 1960.
. "Irrigation Survey 1974." Irrigation
Journal. Vol. 24, No. 6, Nov./Dec. 1974.
. ^Regulations and Instructions, Part I—
Surface Water, Part II—Ground Water. Part III-- Water
Well Minimum Construction Standards. Part IV—State
Board of Control. Office of State Engineer, Cheyenne,
Wyo. Revised, Jan. 1974.
. A Water Development Program for Wyoming.
Wyoming State Engineer's Office, Cheyenne, Wyo., Oct.
1974.
. The Wyoming Framework Water Plan. Wyoming
State Engineer's Office, Cheyenne, Wyo., May 1973.
256
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TECHNICAL REPORT DATA
(Please read Instructions on the reverse before completing/
1. REPORT NO.
EPA-6QQ/2-78-18Q
2.
3. RECIPIENT'S ACCESSION NO.
4. TITLE ANDSUBTITLE
WESTERN WATER LAWS AND IRRIGATION RETURN FLOW
5. REPORT DATE
August 1978 issuing date
6. PERFORMING ORGANIZATION CODE
7. AUTHOR(S)
George E. Radosevich
8. PERFORMING ORGANIZATION REPORT NO.
9. PERFORMING ORGANIZATION NAME AND ADDRESS
Resources Administration and Development, Inc.
P. 0. Box 1028
Fort Collins, Colorado 80522
10. PROGRAM ELEMENT NO.
1HB617
11. CONTRACT/GRANT NO.
R-803166
12. SPONSORING AGENCY NAME AND ADDRESS
13. TYPE OF REPORT AND PERIOD COVERED
Robert S. Kerr Environmental Research Laboratory
Office of Research and Development
U.S. Environmental Protection Agency
Ada. Oklahoma 74820
Final
14. SPONSORING AGENCY CODE
EPA/600/15
15. SUPPLEMENTARY NOTES
Related study report: ACHIEVING IRRIGATION RETURN FLOW QUALITY
:ONTROL THROUGH IMPROVED LEGAL SYSTEMS by George E. Radosevich and Gaylord V. Skogerboe
16. 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 inter-
pretations or changes to implementing improved water management technology. Spec-
ifically, this report provides a synthesis of water laws of each of the 17 western
states, as well as providing a state-by-state account of the water quantity laws,
oavinq particular attention 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.
17.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
b.lDENTIFIERS/OPEN ENDED TERMS C. COSATI Field/Group
Water law, water rights, irrigation,
irrigated land, water pollution,
water quality.
Irrigation return flow,
17 western states,
duty of water, water
allocation.
70F
92D
13. DISTRIBUTION STATEMENT
Release to Public
19. SECURITY CLASS (This Report)
Unclassified
21. NO. OF PAGES
267
20. SECURITY CLASS (This page)
Unclassified
22. PRICE
EPA Form 2220-1 (9-73)
257
ft U.S. GOVERNMENTPdlNUNG OFFICE: 1978-757- HO /1447
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