~ ENVIRONMENTAL PROTECTION AGENCY OFFICE OF ENFORCEMENT EPA-330/1-77-008 A eview Of State Water Laws Related To Irrigation Return Flow NATIONAL ENFORCEMENT INVESTIGATIONS CENTER DENVER. COLORADO $ \ isWZS AUGUST 1977 ------- Environmental Protection Agency Office of Enforcement EPA-330/1-77-008 A REVIEW OF STATE WATER LAWS RELATED TO IRRIGATION RETURN FLOW Arnold C. Celnicker August 1977 National Enforcement Investigations Center Denver, Colorado ------- CONTENTS INTRODUCTION 1 WATER RIGHTS 2 RIPARIAN 2 PRIOR APPROPRIATION 2 DUTY OF WATER 10 DUTY OF WATER DEFINED 10 FAILURE TO APPRECIATE DUTY ... 11 QUANTITY OF WATER APPROPRIATED. . . 12 STATUTORY LIMITS 12 NON-STATUTORY LIMITS 13 LOSS OF WATER RIGHTS 14 OUALITY OF WATER APPROPRIATED ... 31 WATER QUALITY AS A VESTED RIGHT 31 PRIVATE ACTION NOT TAKEN .... 33 REFERENCES - BIBLIOGRAPHY 34 ------- INTRODUCTION Irrigators with prior appropriated water rights have traditionally used their total allocation of surface water to comply with "beneficial use" requirements of most Western water law. An irrigator believes that applying all water to which he is entitled by prior appropriation con- stitutes beneficial use, and that such practice is necessary to maintain his water right. There is evidence, however, that overappropriating water is not essential and is, moreover, demonstrably detrimental to optimum crop yields. This paper examines state laws which address the beneficial use concept as it has applied in the past, and as it now applies to use of prior appropriated water in irrigation. ------- WATER RIGHTS RIPARIAN By common law, riparian water rights were based on ownership of the land adjacent to the water. It gave each riparian owner on a given body of water an equal right to that water. This meant that if each of two neighbors on a stream which contained 200 cubic feet per second (cfs) was using 100 cfs to irrigate his land, and one of the owners subdivided his land into four parcels and sold each riparian parcel, then the other neighbor would have to share equally with each of the four new owners, thereby decreasing what each could take to 40 cfs. This would be no problem if there were enough water so each new riparian could meet his needs without forcing other riparians to cut back on their uses — but this happy situation does not exist in the West. If the West tried to follow the riparian doctrine, the limited amount of water would soon be divided into so many equal parts as to make each part unusable. In addition, the element of certainty necessary for investment would be absent. The addition of more riparians (as in the example above where one owner subdivided his land into four parcels), or the decision by a riparian to start to use his share which previously he had allowed to flow by his land, could reduce the investor's right to water so as to make his investment worthless [1 *:453-55]. PRIOR APPROPRIATION The Colorado Supreme Court, in the classic case of Coffin v. Left * References are cited in brackets throughout this report; for complete information, see list at end of report. ------- 3 Hand Ditch Co. [6 Colo. 443 (1882)], recognized that "imperative necessity, unknown to the countries which gave [the riparian doctrine] birth, compels the recognition of another doctrine in conflict therewith," the doctrine of prior appropriation. Actually, the court did not create, but simply legitimized, the doctrine. The miners in the territory that would become California, the Mormons in what is now Utah, and the descendants of the Conquistadores and Mexicans who settled what is now New Mexico, had each independently applied the doctrine's main principles [1:454-55; Snow v. Abalos, 18 N.M. 681, 140 P. 1044, 1048 (1914)]. The main principles of the prior appropriation doctrine are: 1. A water right is acquired by diverting water and putting it to beneficial use (not by ownership of the riparian land). 2. If there is not enough water to meet all demands, first in time is first in right. In other words, in reverse chronological order based on the date of appropriation, each appropriator is denied any water until there is enough to meet the demands of all prior appropriators. (A subsequent appropriator is termed "junior" to all those with earlier, or "senior" rights.) 3. A water right is a property right in the use, not the corpus, of the water. Following Colorado's lead, the supreme courts of the other seven most arid states - Arizona, Idaho, Montana, Nevada, New Mexico, Utah and Wyoming - totally repudiated the riparian doctrine and adopted the prior appropriation, or "Colorado," doctrine [2:§18.2(B); 3:170]. The remaining nine Western states - California, Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Washington - did not totally repudiate the riparian doctrine but superimposed the ------- 4 appropriation doctrine upon the riparian doctrine. In general, the riparian rights have been severely limited and today are important only in California and Texas [2:§421; 3:193-96]. The limitations of these doctrines relevant to irrigation return flows, to be discussed below, are not an unconstitutional taking of property [2:§431.1; 4:282-83]. Requi rements The two substantive requirements for an appropriative right to be created are: a diversion of water, and putting the diverted water to beneficial use. Diversion A diversion of water generally involves "taking it from the source of intended use in artificial works" [3:545]. Perhaps the most basic reason for this requirement is that a diversion is, in fact, usually necessary for the water to be used beneficially. It is hard to imagine how irrigation, mining, municipal, or manu- facturing needs for water could be satisfied without a diversion. On the other hand, the diversion requirement has been waived in situations where the water could be used without a diversion, for instance re- creation, in-stream storage, power generation and stock watering. Beneficial Use Addressing the key aspect of prior appropriation, the U. S. Supreme Court has stated: ------- 5 There must be no waste in arid lands of the 'treasure1 of a river... . The essence of the doctrine of prior appropriation is beneficial use, not a stale or barren claim [Washington v. Oregon, 297 U. S. 517, 527-28 (1936)]. State statutes and constitutions often contain examples of uses which are beneficial. Common among these are domestic uses, irrigation, manufacturing, stock watering, generation of power, mining, and re- creation [2:§408.1; 3:524]. However, no statute is meant to be ex- haustive and the term beneficial use "is operational and must be tested pragmatically in each situation" [2:§408.1]. Examples of uses declared as not beneficial are exterminating gophers and squirrels, speculating, and carrying off debris during the irrigation season [3:545-46]. The concept of beneficial use serves as a limit on the amount of water that the right encompasses [2:§408.1; 3:495]. What the Court of Appeals said 80 years ago is still valid: We consider the law to be well settled that the right to water flowing in the public streams may be acquired by an actual ap- propriation of the water for a beneficial use; that, if it is used for irrigation, the appropriator is only entitled to the amount of water that is necessary to irrigate his land by making a reasonable use of the water; ...he will be restricted to the quantity of water needed for the purposes of irrigation, ...no person can, by virtue of his appropriation, acquire a right to any more water than is necessary for the purpose of his appropriation... . [Hewitt v. Story, 64 F. 510, 514 (9th Cir. 1894)] It follows that: In so far as the diversion exceeds the amount reasonably necessary for beneficial purposes, it is contrary to the policy of the law and is a taking without right and confers no title, no matter for how long continued. [Tulare Irrigation District v. Lindsay- Strathmore Irrigation District, 3 Cal. 2d 489, 547, 45 P. 2d 972 (1935)] It should be noted that the California Doctrine States have all incorporated the concept of beneficial use into their riparian rights. ------- 6 Some states (Texas, Oregon, South Dakota, North Dakota, Kansas, Oklahoma, and Washington) limit riparian rights to those which had been put to beneficial use by a certain date. If they were not put to beneficial use, they were extinguished [3:193-95]. In 1928, a California con- stitutional amendment limited the use of riparian rights to "reasonable beneficial use" [2:§421]. This reasonable beneficial use requirement replaced the common law rule that a riparian owner was entitled to his proportional share even if it was not put to a beneficial use [2:§424]. Procedures In making a water appropriation, three procedures are involved: application, adjudication, and distribution. Application In 15 western states (all but Colorado and Montana), an application must be filed with a state official, generally the state engineer, for a permit to appropriate [3:302]. In general, the application is granted if unappropriated water is available, the water applied for will be put to beneficial use, and the public interest will not be adversely affected. If more water is applied for than the use requires, the state engineer may approve less than is requested [3:416]. This makes it relatively simple to prevent excessive claims from being granted and becoming clothed in the blanket of property rights. The permit does not give a water right. The appropriator must divert the water and put it to beneficial use to acquire a right. ------- 7 Even assuming that the application mechanism is working, it will not help with respect to past appropriations. Since most streams are appropriated to the point where new major irrigation projects are im- possible [1:452], the most important aspect of the problem, past ex- cesses, cannot be affected by these procedures. Colorado simply requires that the appropriator divert the water and put it to a beneficial use to complete the appropriation. There are no procedural requirements. Excessive claims are prevented by a special court proceeding for the determination and adjudication of rights [3:299]. In Montana, the potential appropriator need only post a notice and file a copy in the county records. However, if the stream involved has already been adjudicated, the appropriator must obtain a court degree. Adjudication An adjudication is basically a procedure which determines who is entitled to what. States which have a permit system or other forms of recording have at least a partial list of rights. However, this list is neither complete, because claims which predate the system will not be included, nor authoritative [1:461]. Adjudication takes one of three forms: 1) a private, quiet-title suit, 2) a suit in which the state participates as per state statute, or 3) a suit initiated by the state in which the state attempts to join all the parties into a "general adjudication" [2:§430]. While the latter two are based on state statutes, the private action is available regard- less of whether the state provides an alternative statutory procedure. Statutes of Oregon, Arizona, Nevada and Utah allow the court to change a private adjudication into a general one [2:§430]. ------- 8 The role of the state in a general adjudication varies. In Wyoming, Nebraska and Texas, there is an administrative adjudication which is final unless appealed to a court. In Oregon, California, Arizona, Nevada and Utah, an initial administrative determination is automa- tically reviewed and modified or approved by the court. In Washington, the administrator takes testimony but the court makes the decision. New Mexico, North Dakota, Montana, Oklahoma, South Dakota, and Kansas have the administrator prepare a basic hydrographic survey which the court uses in its proceeding. The Colorado state engineer provides a water judge with a tabulation of all water rights which he considers in the proceedings. Regardless of the role that the administrative agency plays, the final decision in all states rests with the court, although some states require a party to appeal to the court [2:§430.6]. The extent to which rights have been adjudicated varies from state to state. In some states, for example New Mexico, very few rights have been adjudicated. Where this is the case, and state-initiated general adjudications are authorized (e.g., Arizona, Idaho, Montana, Nevada, Oklahoma, and Texas), the state could use such adjudications to ef- ficiently reduce extravagant diversions (See "Duty of Water" subsection). If the state's statutes do not provide for the state-initiation of the adjudication, private parties must initiate it. If the right has already been adjudicated, then a forfeiture procedure must be followed. (See "Forfeiture" subsection). Distribution The actual distribution of the water is generally under the super- vision of the state engineer. He may try to use this power to alleviate the excessive use of water. As the Wyoming Supreme Court said in Parshall v. Cowper [22 Wy. 385, 143 P. 302, 304 (1914)]: ------- 9 The volume of water to which an appropriator is entitled at any particular time is that quantity, within the limits of the appro- priation, which he can and does apply to the beneficial uses stated in his certificate of appropriation. It may be more at one time than at another...it is for the purpose of regulating the quantity... that the Water Commissioner is given authority to close...a head- gate so as to prevent waste of water... . However, if a water right has been adjudicated, the appropriator has a right to the amount granted (absent abandonment or forfeiture). If the right has not been adjudicated, an attempt to limit the distribu- tion may well lead to an adjudication. That is, the appropriator may sue the state engineer claiming a right to a certain amount of water and asking for an injunction to prevent the engineer from closing his head- gate until he diverts said quantity. Therefore, the power to control distribution is not, in itself, a power to control the quantity which the appropriator has a right to. ------- DUTY OF WATER DUTY OF WATER DEFINED It is clear that irrigation is a beneficial use of water. It does not follow that an irrigator can take as much water as he wants to irrigate his land. He is limited to the amount necessary to irrigate his crops.2 The showing that all of the water of the stream had been at times used or allowed to flow upon the land does not necessarily prove an appropriation of all of it for a beneficial use, for the appropria- tion must be limited to the amount reasonably required for the proper and successful cultivation of the land or other use to which the water is applied. [Nichols v. Hufford, 21 Wy. 477, 133 P. 1084, 1088 (1913)] The concept of "duty of water" is often used to express this limitation. The Colorado Supreme Court, in Farmers Highland Canal & Reservoir Co. v. Golden [129 Colo. 575, 584-85, 272 P. 2d 629 (1954)] explained it as follows: The expression 'Duty of Water,' in the opinions of some present-day scholarly hydrologists and technical engineers, may be outmoded, provincial, unscientific and otherwise objectionable, nevertheless it is a term well understood and accepted by every rancher and farmer who has had practical experience in the artificial irriga- tion of land for the production of crops. 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 adequate to produce therefrom a maximum amount of such crops as ordinarily are grown thereon. It is not a hard and fast unit of measurement, but is variable accord- ing to conditions. ------- 11 FAILURE TO APPRECIATE DUTY Since the amount of the appropriation is limited to that which is required, how can some irrigators claim excessive amounts? The answer to this is well expressed by the decision of the Montana Supreme Court in Allen v. Petrick [69 Mont. 373, 377-80, 222 P. 451 (1924)]. In Montana, as elsewhere, when the early settlers made their original appropriations they had little knowledge of the quantity of water necessary to irrigate their lands to good advantage. Ample quantities of water being available in the streams, the set- tlers claimed extravagant amounts... . Almost every irrigator used an excessive amount of water, some all they could get... . When the country became more thickly settled and the people began to farm more thoroughly and according to more approved methods, it began to be understood by practical as well as scientific exper- ience that the use of excessive quantities of water was detrimental rather than beneficial to the land... . Yet here, as well as elsewhere, many still adhere to extravagant use of water, although it is apparent to the enlightened that these users are raising smaller and poorer crops than they would raise if they used water more sparingly and intelligently. It is a matter of common knowledge in the several judicial dis- tricts of this state where irrigation has been practiced since the early days that extravagant quantities of water were awarded the litigants by the courts. In some instances more water was awarded than some of the ditches of the litigants ever would would carry; in others much greater quantities of water than the litigants ever did or could use beneficially. In some cases the courts were not to blame. The litigants tried to get all they could. They even stipulated to the use of quantities of water ridiculously large for the amount of land indicated. A fundamental error into which the early day courts fell was the result of their failure to appreciate what has been termed the duty of water, that is, the extent to which and the manner in which the water should be used by the appropriator. In determining the duty of water the court should ascertain the quantity which is essential to irrigate economically but successfully the tract of land to be irrigated. ------- QUANTITY OF WATER APPROPRIATED STATUTORY LIMITS In determining the duty of water for a given tract, all the charac- teristics of that tract must be considered - e.g., type of soil, slope of the land, season and climate, type of crop, the farmer's skill, and the method of irrigation used [2:§55.3; 3:509; 6:515]. This variability makes any attempt to set a standard duty applicable to all land within the state subject to criticism. Regardless, the following limitations have been set by statute: Wyoming - 1 cfs per 70 acres Nebraska and South Dakota - 1 cfs per 70 acres not to exceed 3 acre-feet/acre/year Oklahoma - 1 cfs per 70 acres not to exceed 4 acre-feet/ acre/year Idaho - 1 cfs per 50 acres or if stored water is being collected, then 5 acre-feet per acre California - 2-1/2 acre-feet/acre/year for uncultivated land Even though the administrator is free to, and in theory required to, give less water than the statutory amounts if the needs of the specific tract are satisfied by a lesser amount, in states which have statutory duties, the administrator tends to routinely give the speci- fied amount [5:318; 6:502]. Therefore, it has been suggested that statutory limits not be set and that the state engineer should be required to set quantity limita- tions on each application considering the circumstances (climate, type of soil and crop, etc.) of that applicant [4:300]. Though in theory ------- 13 this is what is done even if a minimum duty is set by statute, practice evidently does not follow theory. The statutes of two states, Nevada and New Mexico, do not set numerical limitations but do give specific directives to the state engineer concerning duty. The New Mexico statute was changed in 1955 from a limit of 1 cfs per 70 acres to requiring the state engineer to limit the permit to the amount of water "consistent with good agricul- tural practices and which will result in the most effective use of available water in order to prevent waste" [3:511]. The Nevada statute had set a limit of 1 cfs per 100 acres until it was changed in 1945 to require that: 1. The quantity...shal1 be limited to such water as shall rea- sonably be required for the beneficial use to be served. 2. [In determining the amount of water to be allowed for irri- gation purposes]...the state engineer...shall take into con- sideration the irrigation requirements in the section of the state in which the appropriation is to be made. The state engineer shall consider the duty of water as theretofore established by court decree or by experimental work in such area or as near thereto as possible. He shall also consider the growing season, type of culture, and reasonable trans- portation losses of water...and may consider any other per- tinent data deemed necessary to arrive at the reasonable duty of water [6:518-19]. To repeat, whether minimum duties are set by statute and whether the criteria to be considered are specified or not, in theory the outcome with respect to the amount of an appropriation should not change. Apparently theory and practice do not coincide. NON-STATUTORY LIMITS In the two non-permit states, Montana and Colorado, the court determines the quantity of water needed. ------- 14 The Montana court generally gives 1 cfs per 40 acres absent evi- dence of greater or lesser need. Worden v. Alexander [102 Mont. 208, 90 P. 2d 160 (1939)] involved an adjudication on rights in which the duty of the water awarded was challenged. Experts for the plaintiff were engineers who testified that 1 cfs per 40 acres was sufficient. Experts for the defendant were farmers who testified that 2 to 3 times that amount was necessary. The court, in holding for the defendant, said: It is the policy of this and all western states to require the highest and greatest possible duty from the waters of the state in the interest of agriculture and other useful and beneficial pur- poses (cites omitted). But is is equally well-established that 'economy should not be insisted upon to such an extent as to imperil success'" (cite omitted). [90 P. 2d 163-64] This case illustrates two points. First, when it comes to proving what the duty of water is, the farmer's testimony may be given more weight than the engineer's [Enterprise Irrigation District v. Willis, 284 N.W. 326 (Neb. 1939)]. Though this may be less the case today than it was in the past, it is still probably generally true. Second, we are not talking about eliminating all waste, but just unnecessary waste [3:649]. The farmer need not apply the latest scientific technology and he need not limit his return flow to zero. The test is reasonableness, not mathematical exactness [3:498, 644-45]. The courts do not want to threaten the farmer's success [5:306]. This is why the court often looks to local customs or methods as a guide [3:p. 502]. LOSS OF HATER RIGHTS This section on forfeiture and transfer considers what can be done with rights that have already been adjudicated and excessive quantities of water awarded. Generally, these awards are not affected by subsequent statutory limitations of the type to be discussed because the states have not declared the statutes to be retroactive. [Quinn v. John Whitaker ------- 15 Ranch Co., 192 P. 2d 568 (Wy. 1939); Enterprise Irrigation v. Willis, 284 N.W. 326 (Neb. 1939)] Whether the state has the constitutional power to make such statutes retroactive is unclear. This section also expands on the concept of duty and indicates how the amount awarded in future appropriations and adjudications can be limited. The owner of a water right does not own the corpus of the water; what he owns is the right to use the water in a beneficial way. If the right is not exercised, then it will be lost through either abandonment or forfeiture. Abandonment is a common-law doctrine recognized in all Western states. It occurs when the owner of a water right stops using the water with the intent of abandoning it [7:41]. The intent aspect makes aban- donment fairly unimportant for our purposes. The fact alone that part of the water diverted returns unused to the stream is not evidence of abandonment. Forfeiture Forfeiture occurs when the owner of a right does not use the water for a statutorily specified number of years, usually 5. Intent is irrelevant. If part of the right is not used, then only the part not used is forfeited [7:42]. The general rule, applicable throughout the law, that courts abhor a forfeiture is applicable here as well. Only Colorado and Montana have no forfeiture statute. However, in Colorado, 10 years of non-use leads to a rebuttable presumption of abandonment. The Idaho forfeiture statute allows the right to be revived if it is used before a third party appropriates the water. ------- 16 Once a water right has been adjudicated, it can be involuntarily lost only by forfeiture. Therefore, one of the reasons that excess water is purposely placed on croplands is the existence of forfeiture statutes. By continuing to "use" the water, the farmer reasons, he it is not subject to forfeiture. Technically, this argument is unfounded. Western water law is based on the beneficial use of water and "the accepted, though oft violated, principle that the right to water does not give the right to waste it" [Fellhauer v. People, 167 Colo. 320, 336, 447 P. 2d 986 (1970)]. Simply diverting water has never been sufficient to acquire any right in water. Similarly, simply diverting water without putting it to beneficial use does not preserve a right which might have been pre- viously acquired. It may be argued by the farmer that the adjudication of a certain amount of water is proof that it is all being put to beneficial use. However, it is well recognized that what is a beneficial use changes as conditions change. As water becomes scarcer and our knowledge about the duty of water increases, what was a "beneficial use" when there was plenty of water may no longer be considered a beneficial use [5:318; 6:496-97]. The fact that a given amount was awarded does not mean that part of that award cannot be forfeited even though the farmer diverts it and lets it flow over his land. The National Water Commission recognizes that some farmers, to prevent forfeiture, divert more water than they need. Supportive ra- tionale suggests the benefit of eliminating "stale claims" outweighs any adverse effects. This practice presumes that diverting excess water avoids forfeiture. But why must we pay the price of excessive claims in order to eliminate stale claims? ------- 17 In New Mexico v. McLean [62 N.M. 264, 308 P. 2d 983 (1957)], the defendant had allowed water to flow uncontrolled over his grazing fields for many years. The state brought an action to enjoin further use of the water by the defendant. The court said that any appropriative right which may have existed was forfeited by non-beneficial use for the statutory period of 4 years. Water in this state is too scarce and consequently too precious to admit waste... . The amount of water which has been applied to a beneficial use is, of course, a measure of the quantity of the appropriation. Waste of water must not be practiced. Wasteful methods, so common among the early settlers do not establish a vested right to their con- tinuance. Such methods were only deemed a privilege, 'permitted merely because it could be exercised without substantial injury to anyone.' [Hough v. Porter, 51 Or. 318, 95 P. 732, 98 P. 1083, 1102, 102 P. 728] The Legislature has the power to provide that the right to use of water would be lost and forfeited by four years of continuous non- beneficial use. We do not want to be understood as holding that public waters cannot be beneficially used for irrigating native grass, but we do hold that the method employed by defendant in watering the grass on his land, as well as his livestock, cannot be considered as being beneficially used within the meaning of our Constitution and laws of this State. [304 P. 2d 987] The defendant argued that because the state knew what he was doing for many years without acting, it was now estopped. The court disagreed, saying public policy would not allow such a result and, in general, the "neglect or omission of public officers to do their duty cannot work an estoppel against the state" [304, P. 2d 989]. Though the above case basically represents the correct approach, a strong argument can be made that McLean should not have forfeited his entire right, but merely the part in excess of what was needed to irri- gate his grazing land if done efficiently. ------- 18 In forfeiture cases, defendants may raise constitutional objections based on the Fourteenth Amendment of the United States Constitution and similar provisions in many state constitutions. The relevant portion of the Fourteenth Amendment states: "...nor shall any state deprive any person of...property without due process of law... ." If the right was acquired after the passage of the forfeiture statute, the court will have no trouble finding the right was acquired subject to a valid, police power, regulation. If we are dealing with rights vested before the enactment of the statute, two issues are raised: (1) did the legislature intend to apply the statute to pre-Statute rights, and (2) if so, does this vio- late the Constitution. As a general rule of statutory construction, statutes are not presumed to be retroactive [82 C. J. S., Statutes §414 (1953); Application of Boyer, 248 P. 2d 540 (Idaho 1952)]. The Nevada statute provides that rights vested prior to its enact- ment (1913) will not be impaired. The court, in In re Manse Spring [108 P. 2d 311 (Nev. 1940)], said that the legislature did this "to avoid any question of the constitutionality of the act." While it does avoid such questions, it does so at the expense of having old and valuable rights unused for many years still on the books. This injects a large element of uncertainty about the value of subsequent appropriations, which is one of the main evils that the prior appropriation doctrine was supposed to eliminate. Was the Nevada legislature's concern about the constitutionality of the forfeiture statute justified? In 1913 perhaps it was. The extent of state police power was to undergo significant expansive definition in the decades following the Nevada Act, especially through the vehicle of ------- 19 the zoning cases. In a 1946 case involving the constitutionality of a state housing code, the U. S. Supreme Court said: "The police power is one of the least limitable of governmental powers, and in its operation often cuts down property rights" [Queenside Hills Realty Co. v. Saxl, 328 U. S. 80, 90L. Ed. 1096, 66 S. Ct. 850 (1946)]. Of course, there is a famous and often hazy line between regulation and taking. However, there is no question but that forfeiture for non-use of a water right is on the side of regulation. Perhaps the most recent case in point is Texas Water Rights Com- mission v. Wright, [464 S.W. 2d 642 (Texas 1971)]. The case challenged the constitutionality of the state's 1957 statute which provides a conclusive presumption of abandonment after 10 years of non-use. After finding this to be equivalent to forfeiture, the court held the statute constitutional. The court emphasized that a water right is a right to use water and there is no such thing as a vested right to non-use of water. Therefore, a forfeiture statute does not deprive one of his vested rights. A retroactivity issue was raised because the Texas constitution specifically prohibits retroactive laws. The fact that the water right was acquired prior to the passage of the statute is not what caused the retroactivity issue to be raised. The issue was raised because the 10 years of non-use included some time prior to 1957. The court discussed the many theories used to uphold retroactive laws and concluded the statute was not unconstitutional because the defendants could "reasonably expect" that their rights would be lost if not used. And they had a reasonable time after the statute was enacted to put the water to bene- ficial use and thereby preserve their right. The Texas Supreme Court went on to discuss the rationales used by other states to uphold retroactive forfeiture statutes and then mentioned ------- 20 the Nevada case In re Manse Spring (discussed above). The Texas court said that the Nevada case held Nevada's forfeiture statute inapplicable to rights acquired prior to the Nevada forfeiture statute's passage and that no other state has followed the Nevada court. Apparently, the Texas court would have been happier if the Nevada court had interpreted the Nevada statute to be retroactive despite its wording which appears to make it not retroactive. Between September 1968 and September 1970, the Texas Commission used the forfeiture statute to cancel 76 rights in whole or in part. These rights involved over 84,000 acre-feet of water and irrigation of over 35,000 acres [8:664]. Transfer The concepts discussed so far deal with whether the irrigator has a right to excess water, and if he has forfeited any right which he may have had at one time. A different approach to the problem is to allow or encourage the farmer to sell his excess water rights or to use them on other lands or for other purposes. This section is not concerned with the mere change in ownership of water rights [3:468]. It is the change in the place or type of use that is relevant, though such a change often accompanies a sale of the rights. Therefore, when ref- erence is made to a change or transfer of water rights, it is a change in use (e.g., from irrigation to manufacturing), or a transfer in lo- cation of the use or point of diversion, that is being referred to. Studies have shown that the economic value of water in different uses varies significantly [4:260-261]. Assuming basic economic prin- ciples are valid, if a free market for water rights exists, it should automatically cause rights to be transferred from low economic uses (agricultural) to high economic uses (industrial and domestic)[4:260]. ------- 21 The above argument is even applicable to water which is being efficiently used in agriculture. To the extent that excessive diversions are being made and the water is not being beneficially used, the validity of the argument is multiplied. In most if not all states a water right is appurtenant to the land on which it is used [3:456]. That is, if the land is conveyed, whether by sale, inheritance or any other means, and the conveyance does not explicitly mention the water right, the right is presumed to have been conveyed with the land. However, with the exceptions discussed below, water rights are freely severable from the land [3:471], There seems to be some confusion about the difference between appurtenance and severability. For example, the National Water Commis- sion's discussion of "Restrictions on Powers of Transfer" states: One such restriction, found in the law of only a few states at the present time, makes an appropriative water right "appurtenant" to the land (i.e., not subject to separate sale and use apart from the original tract of land benefiting from the right)[4:269]. This statement is, at best, misleading. Appurtenance of water rights to land is found in most (if not all) states but it does not mean that the right is "not subject to separate sale and use apart from the original tract of land benefiting from the right." Though the right to transfer one's property may be a right inherent in its ownership, reasonable limiting regulation of this right is clearly within the state's police power [9:38-9]. Ten restrictions are discussed here. 1. Clearly the most important restriction on transfers, appli- cable to all transfers in all states, is that no other appro- priation be injured by the transfer [3:467]. One of the ------- 22 basic maxims of the prior appropriation system is that every appropriator has a right to continuation of the stream con- ditions as they existed when he made his appropriation [3:631; 10:303]. This rule applied equally to all appropriators — juniors and seniors. Some general illustrations of the rule's application may be helpful: (a) Farmer A has a right to 400 cfs (ignoring any volume limitations) which he uses to irrigate his land, with 100 cfs returning to the stream. Farmer A sells his land and water right to the Cuurs Brewery which builds a new brewery on the land and uses the entire 400 cfs to make beer. Downstream, Farmer B finds he no longer has as much water as he used to, being 100 cfs short. sues to enjoin Cuurs from diverting 100 cfs of the 400 cfs they are diverting. wins. Regardless of whether he made his appropriation before or after A made his appro- priation, he has a right to a continuation of the return flow that existed when B_ made his appropriation. [Green v. Chaffee Ditch Co. 150 Colo. 91, 371 P. 2d 775 (1962); 3:640]. (b) Farmer A has a right to 900 cfs which he uses to irrigate his land. The return is 300 cfs. He sells his right to the City of Denver which is far downstream. Denver diverts the 900 cfs, and it all returns to the stream through its sewage outflow. However, Denver finds that only 600 cfs is reaching it because all the stream's water, except 600 cfs, is being diverted by user B, located between Farmer A and Denver. Denver sues to prevent him from taking 300 cfs of the water which Denver bought. Denver loses regardless of whether B^_s_ appro- priation is prior to or subsequent to A's appropriation because j3 has a right to continue to take the 300 cfs he was taking prior to the transfer. (c) Farmer A has a right to 700 cfs which he uses to irrigate his land. The return is 400 cfs. Farmer A wishes to use his water on a different tract of land he owns downstream. However, between A's two tracts of land, Farmer B has been diverting 1,000 cfs, which is the entire flow of the stream at B's diversion. B's ------- 23 return enters a different river basin. Even if A_|_s_ right is superior to B's, A cannot force B to allow 700 cfs to flow past his diversion to A's downstream tract. A is only entitled to 300 cfs on his downstream tract because to get more he would have to injure B's right. [Hall v. Blackman, 22 Idaho 556, 126 P. 1047 TT912)] In each of the above cases, Dart of the attempted transfer was blocked by j3. Even if A was senior to ]3, had a right to the continuation of A's return flow because that return flow was part of the conditions of the stream when IB made his appro- priation. In each of the above cases, A ended up transferring an amount equal to his diversion minus his return flow, which, of course, equals his consumptive use. Applying the above principles to the situation where A tries to transfer only his return flow, in each of the 3 illustrations the transferee would receive nothing. Therefore, it appears that our problem may be alleviated by sale of the farmer's entire right, but not by a sale of only his excess water. The situation is not as bleak as it appears. Slight changes in each of the 3 illustrative fact patterns would render the return flow transferable. In (a), if the water were being sold to a use which was not completely consumptive (and most manufacturing uses are not), then the plant would return the 100 cfs (and perhaps all 400 cfs) to the stream and B^ would be happy. In (b), if 13 were not located between A and Denver, or even if he were but he did not require all of the remaining stream water, or even if he did but he returned at least 300 cfs to the stream after he used it, then Denver and B^ could both be happy. The same changes as would remedy (b) could make the situation in (c) felicitous. ------- 24 The fact that a water right is limited in time as well as quantity may be relevant to the return flow problem. If an irrigator has a right to 500 cfs from May to September, then he cannot transfer the right to any amount of water for use year-round if injury would result to others [11:513]. This problem may be somewhat alleviated by the possibility of storing water for later use. A related problem arises if the water returns via subsurface flow. For example, if water traditionally applied in May returns to the stream in August and is used by a downstream appropriator, a change which interferes with this pattern will not be allowed. One thing should be clear: whether transfer of the return flow is a viable solution depends on the facts of the situation. The facts of each situation will determine if there are other appropriators who will be injured by, and therefore in a position to object to, the transfer. The Idaho Supreme Court, in two cases, seems to have found an exception to the downstream user's right to have the conditions of the stream continue as they were when he made his appropria- tion. In Application of Boyer [248 P. 2d 540 (Idaho 1952)], objections to an application to change the place of use were defeated. The original place of use resulted in a large return flow which was then used by the objectors. The change would have eliminated the return. The court allowed the change, stating that: The rule that a junior appropriator has the right to a con- tinuation of stream conditions as they were at the time he made his appropriation, could not compel respondent to con- tinue to waste his water [248 P. 2d 546]. ------- 25 Similarly, in Calthorp v. Mountain Home Irrigation District [157 P. 2d 1005 (Idaho 1945)], a suit for damages and an in- junction to prevent defendant from changing his place of use failed. Without the change, 75% of defendant's water was being lost through seepage back to the stream. The plaintiff had appropriated this return. The court held that the defen- dant "could not be required to continue to waste 75% of the water decreed to it." The plaintiff also argued that the defendant had forfeited his right but the court said it had been put to beneficial use and not forfeited. I am not cer- tain how the water could be put to beneficial use while, at the same time, it was being wasted. While this approach would liberalize the transfer of excessive water, it has not been followed elsewhere, and, in my opinion, the cases were wrongly decided. 2. Procedural restrictions are designed to ensure that substantive restrictions are not violated [11:512]. Prior to the pro- cedures now used, the rule that no change in an appropriation may be made if it damaged another "was often honored in the breach" [11:521; 12:24]. Today, there is a strong policy to approve changes, but to put in any conditions necessary to prevent injury to others [11:520-21]. All the Western States except Colorado and Montana have ad- ministrative procedures requiring review and state approval of applications for changes [7:37; 11:525]. In Colorado, a special court procedure is used while in Montana, a private law suit by an aggrieved appropriator must be brought [12:22]. ------- 26 Most, if not all of the states, have procedures for notice to be given to appropriators who may be affected by a proposed change. For example, in Colorado, notice must be sent by registered mail to appropriators between the old and new points of diversion, by regular mail to others in the water district, and published. Most states only require notice by publication. Determining whether another appropriator will be harmed by a change may, in reality, be very difficult, if not impossible. Therefore, the Colorado court, in City of Colorado Springs v. Yust [126 Colo. 289, 249 P. 2d 151 (1952)], allowed a change for a temporary period to assess the effects on others. Though not yet emulated by other states, such a procedure has received support [4:263; 11:520-21; 12:27]. At the hearing and any appeal to the courts, there is a split with respect to whether the applicant has the burden of showing no injury or whether the protestor must show an injury [11:527]. Apparently, in administrative states, the burden is generally on the applicant to show no injury, while in Colorado and Montana, the burden is on the protestor [3:641]. At the hearing, one who is objecting to a change is generally allowed to raise the question of whether the applicant had forfeited or abandoned the right which the applicant is now trying to transfer. [Application of Boyer, 248 P. 2d 540 (Idaho 1952); 11:526] 3. Some state statutes require that any severance and transfer of a water right be "in the manner specially provided by law. " This merely means that the procedures required for a change in place of use be followed. (Of course, they would have to be followed even without such wording in the statute.) [3:477] ------- 27 4. Early Wyoming water law allowed the severance and transfer of all water rights. However, in a book published in 1903, Elwood Mead, one of the architects of Western water law, argued that excessive appropriations were being made and the surplus was being sold to others. He abhorred such speculation. On the other hand, the Wyoming Supreme Court correctly pointed out that such speculation was impossible because an appropria- tor acquires a right to use the amount of water he needs but no right to any amount greater than his needs, and therefore it would be impossible for him to sell what he has no right to. [Johnston v. Little Horse Creek Irrigating Co., 13 Wy. 208, 79 P. 22, 24-5, (1904); 12:8-10] In 1909, the Wyoming Legislature was persuaded more by Mead's practicality than the court's theory. The present version of the statute passed in that year reads: Water rights cannot be detached from the lands, place or purpose for which they are acquired [12:10]. The penalty for violation of the Act is unclear. To alleviate the harshness of this law, ten exceptions have developed to the nonseverability of the water from the land. (For example, exceptions are made if the water will be used for domestic, transportation, or industrial purposes, or if reservoir rights are involved [11:522-523; 12:11-19].) It has been argued that the ten exceptions "seem to have swallowed the rule" [11:523]. Also, the statute probably does not apply to rights acquired before 1909 [11:525]. To the extent that the exceptions have not swallowed the rule, the rule's repeal would facilitate transfers. ------- 28 5. In Nebraska, rights to use water for irrigation acquired after 1895 (the date of the Irrigation District Act) are not severable from the land and cannot be changed to other uses [3:463; 11: 523-24; 12:23]. The exact meaning and application of this statute is unclear. Its repeal would facilitate transfers. 6. Nevada, Oklahoma, and South Dakota require that it become impractical to beneficially or economically use the water on the appurtenant land before it may be severed [3:633; 11:524; 12:23]. How strictly the word "impractical" is interpreted will determine the severity of this restriction. 7. While technically not a restriction on the right of transfer, inadequate measurement and poor records and costs and uncer- tainty may inhibit some buyers or sellers [4:26]. One expert asserts that it costs at least $10,000 to find out exactly what the rights of the seller are so that the parties will know what it is that is being sold [1:452], Also, the possibility of future, expensive, lawsuits is in- creased if the rights involved are not certain. Many state statutes (e.g. Colorado, Kansas, New Mexico, North Dakota, Oregon, South Dakota, Utah and Wyoming) either require, or give the state engineer the discretion to require the installation and use of adequate measuring devices. Such statutes should be enacted where they have not been, and enforced. 8. Special statutes in some states may restrict transfers of certain waters. For example, in New Mexico, the Middle Rio Grande Conservancy District can block transfers of water to land outside the district. Similarly, state statutes or ------- 29 private controls may impede the transfer of water rights by shareholders in mutual irrigation companies [3:477; 12:26]. For example, Arizona's statutes [§45-172 (1962)] require approval of the company for transfers to land not served by the company. Unless such statutes serve valid purposes, their negative effects on transfers warrant their repeal. 9. The National Water Commission states that uncertainty with respect to the title and right to water supplied by the Bureau of Reclamation inhibits its transferability [4:264]. (This paper does not deal with this problem.) 10. It will be recalled that the premise behind this entire section is that an unencumbered free market will result in the transfer of water which is not being used efficiently. The application to the return flow problem, while our main concern, is but a tangential aspect of the transfer of water rights. It is beyond the scope of this paper to consider the effectiveness of the free market in this area, but I suggest three of the reasons why the market may have trouble. First, a belief that the price of water will rise sharply as demand continues to grow may result in speculation, although, in theory, speculation is not a beneficial use. Second, some irrigators may have philosophical, emotional, or political reasons for wanting to preserve the farming way of life and prevent industrial development of the agricultural West. In explaining why Wyoming's restrictions on transfer continue, one expert explains the people's attitude as follows: "To sell [water] would be sinful. Laws against sin are much in favor" [12:73]. Third, lack of information and education may deter sales. In addition to problems of measurement and recording discussed above, questions may exist as to who are the potential buyers and sellers, what legal rights and limitations apply, how much water is ------- 30 "needed" and how much is "excess," and what are the benefits of elim- inating excess water (i.e. reducing erosion, increasing fertilizer efficiency, reducing pollution and perhaps increasing yield [13:64]. In summary, though the list of restrictions is long, they do not significantly impede the transfer of rights. And, to the extent that they do, the reasons for impediment, such as to protect the rights of other appropriators, make most of the restrictions necessary. However, it does not follow that the transfer of rights should not be encouraged. For example, energetic enforcement of forfeiture sta- tutes may cause some farmers to sell their rights or part of their rights, before a forfeiture action is brought. In addition, a user charge for water, structured to discourage its excessive use, may lead to more transfers [4:256, 300-02; 13:64]. Such encouragement, coupled with suggestions made with respect to some of the restrictions — for example, repeal of the Wyoming (#4) and Nebraska (#5) statutes, a liberal interpretation of the Nevada, Oklahoma and South Dakota "im- practical ity requirement" (#6), better measurement and recording (#7), repeal of statutory restrictions on certain waters (#8), and education of farmers (#10) — may result in the transfer mechanism making a sig- nificant impact on the return flow problem. ------- QUALITY OF WATER APPROPRIATED We have considered the limitations that beneficial use and duty place on the quantity of an appropriation, how failure to continue the beneficial use may cause forfeiture of the right, and the possibility of transferring one's right, or part thereof. All of these concepts can have a significant effect on pollution caused by return flow, though the concepts certainly encompass more than such pollution. We will now consider the quality of the water as a component of a water right. This is an area of the law which is more directly and narrowly related to our problem; unfortunately, it is also less likely to provide a solution. WATER QUALITY AS A VESTED RIGHT One of the reasons that Western water law developed as it did, was to provide the certainty necessary for investment. If the appropriator's water could be polluted by an upstream user, making it difficult or impossible for him to use, the certainty and stability created by the appropriation doctrine could be lost. Therefore, "The owner of a water right has a vested right to the quality as well as the quantity which he has beneficially used" [Salt Lake City v. Boundary Springs Water Users Association, 2 Utah 2d 141, 144, 270 P. 2d 453 (1954)]. What it means to say is that quality is part of the appropriator's right, and what his remedies are if this right is violated will be considered in this section. The quality which an appropriator has a right to is that which is sufficient to "substantially fulfill the purposes for which his ------- 32 appropriation was made" [3:448]. Therefore, if the upstream farm's return flow adds so much pollution to the stream that a downstream user cannot use the water for the purpose for which he made the appropriation, or can do so only at great additional expense, he can sue the upstream farmer for damages and an injunction. However, the damage being done must be material [2:§212.(C)]. It is not expected that a user of water can make beneficial use of it without doing some damage to its quality. The fact that the polluter has a senior right is not relevant. The rule that any appropriator has a right to a continuation of conditions as they existed when he made his appropriation applies here as it did with respect to transfers [12:451]. This does not change the fact that the injury must be substantial in order for the appropriator to get relief. The relief given generally takes the form of damages and/or an injunction. Whether an injunction will issue depends on such things as how serious and irremedial the injury is, whether damages will suffice to make the injured party whole, the relative effects of an injunction (from both a private and public viewpoint) on the polluter and injured party, and all other facts and circumstances of the specific case. [Atchison v. Peterson, 87 U.S. 46 (1874); Arizona Copper Co. v. Gillespie, 230 U.S. 46 (1913)]. Any action brought for damages or an injunction is based on the fact that quality is an aspect of one's water right. Since a water right is a property right, the suit may be brought as a nuisance action [2:§55.7]. The conceptual differences between a tort nuisance action and a quiet-title type suit to have one's property right recognized and protected, have been glossed over by the court. The practical differ- ences, at least as limited to pollution from return flow, appear to be nil. ------- 33 PRIVATE ACTION NOT TAKEN A private action based on pollution caused by return flow has never been brought [19:497]. There are a number of reasons why private ac- tions to control such pollution will not solve the problem. Any action would have to be brought by an injured downstream ap- propriator, not the government. The damage to the injured party must be substantial (as discussed above). As the damage is generally done by many upstream users, not just one, and knowledge concerning the causes and solutions of the problem is limited, the court will be reluctant to act. In addition, the existence of state pollution laws aimed at dealing with the problem will increase the probability of the court's not acting [2:§220.3], A public nuisance action will suffer from most of the same problems as a private nuisance action and does not appear to be a practical solution [2:§220]. ------- REFERENCES 1. Ellis, 1967. Water Rights: What They Are and How They Are Created. Rocky Mountain Mineral Law Institute, 13:451. 2. Clark, 1967. Waters and. Water Rights. 3. Hutchins, 1941. Water Rights Laws in the Nineteen Western States. 4. National Water Commission, 1973. Water Policies for the Future. 5. Hutchins, 1942. Select Problems in the Law of Water Rights in the West. 6. 1969. Determining Quantity in Irrigation Appropriations. Land and Water Law Review, 4:501. 7. National Water Commission, 1973. A Summary-Digest of State Water Laws. 8. 1971. Water Law - Water Permits: Vested Rights Limited to the Beneficial Use of Water. Baylor Law Review, 23:657. 9. Holland and Hart, Dec. 20, 1972. Report to Governor John A. Love on Certain Colorado Water Law Problems . 10. Williams, 1973. Optimizing Water Use: The Return Flow Issue. Colorado Law Review, 44:301. 11. Trelease, 1967. Changes and Transfers of Water Rights. Rocky Mountain Mineral Law Institute, 13:507 12. Trelease and Lee, 1966. Priority and Progress - Case Studies in the Transfer of Water Rights. Land and Water Law Review, 1:1. 13. Skogerboe and Law, 1971. Research Needs for Irrigation Return Flow Quality Control. Washington: Environmental Protection Agency. 14. 1970. Agricultural Irrigation and Saline Quality of Water. Land and Water Law Review, 5:491. BIBLIOGRAPHY May 16, 1974. Procedural Guidance for the Preparation3 Issuance} and Monitoring of Permits for the discharge of Irrigation Return Flow. Memo: from W. C. Blackman, Asst. Director, National Enforcement Investigations Center (EPA) - Denver, to Dep. Asst. Administrator for Water Enforcement, Environmental Protection Agency - Washington. 1971. Waters and Watercourses - Constitutional Law. St. Mary's Law Journal, 3:136. 1967. Water Law - Legal Impediments to Transfers of Water Rights. Natural Resources Journal, 7:433. ------- |