ND Water Law

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Questions to address

This page suggests some of the legal issues that arise when allocating water among users. The discussion does not identify all the relevant legal questions, nor does it answer the questions. It is only an introduction intended to illustrate the range of issues.

 

 

As stated in the text (Weber, Harder and Bearden's  casebook:  Cases and Materials on Water Law. 9th ed. West. 2014, page 9):  "The function ... of law [is] to ration a scarce resource and to promote economic development."

 

 

State law determines who within the state has the right to use water, except ...

  • Federal law is applied to resolve interstate disputes, as well as resolve disputes between federal uses of water and states, between non-state governments (such as tribal water rights) and states, and international water disputes.

 

Individuals will observe differences and similarities among the water laws of the states.

  • Most water is owned by the state in which the water is located.  Water users acquire the right to use water, but not the ownership of the water.
  • The "ownership" of water transfers from one state to another as water flows downhill in interstate rivers.

 

Water rights are generally protected by one water user taking legal action against competing water users, that is, water law applies property and tort concepts.  A water right has some (but not all) of the characteristics of a property right.  Tort law is applied to protect a water right, similar to how tort law is used to protect a property right.

  • Water rights have the appearance of being a property right and water users must protect their right to use the water against persons who interfere with their use of the water.
  • But do water rights have all legal characteristics of property? For example, can a water user transfer (sell or lease) the water right to another user?
  • Defining or establishing water rights via individual litigation became cumbersome and burdensome; alternative procedures were developed for establishing water rights, such as water courts and permitting processes.
    • Colorado is an example of a state that relies on special water courts to resolve water disputes.
    • North Dakota and New Mexico are examples of states that have adopted a permitting system to administer water rights.
    • Montana as an example of a state that recently adopted a permitting process and is converting its administrative system
  • A water right is similar to a property right in that a water right held by one person cannot also be held by a second person.
    • If the legal system recognizes a water right, government cannot grant that water right to a second person.  For example, water rights in the southwestern United States that were established under Spanish law and subsequently recognized by U.S. law decades later cannot thereafter be granted to a state government.  Likewise, water rights granted by the U.S. government to Indian tribes cannot be subsequently granted to state government.
    • Can government take a water right from the holder of the water right without compensating the holder of the right, or must the holder of the water right be compensated if the water right is being taken away?

 

Water law is being refined to reflect the science of water, for example, there is a physical connection between surface water and groundwater even though the connection may not be visible or easy to detect. Laws that managed surface water as distinct from groundwater are being refined to reflect that the use of one type of water can impact another type of water.  For example, pumping water from an aquifer can impact the amount of water that flows from a spring to a river.  Or removing water from a surface waterbody can impact the amount of water recharging an underlying aquifer.

  • Water law also is being refined to reflect changes in the desired uses of water. The supply of water may not be changing much, but the demand for water appears to be increasing substantially.  As a consequence, any "surplus" of water is diminishing and "shortages" of water are growing more intense.  Even though principles underpinning water laws in the United States extend back several centuries, types and quantities of water use are leading to changes in water laws.
  • Does conservation of water offer a source to help alleviate future shortages?  Does past and current water law encourage and reward conservation?  Does water law need to evolve to achieve water conservation?  See page 12 of the casebook; Weber's 9th ed.

 

The following points illustrate the range of "water right" questions state law attempts to resolve.

  • Who has the right to use water?
    • For example under the riparian doctrine, "the water is adjacent to your land so you are entitled to use it"; under the prior appropriation doctrine, "the person who put the water to a beneficial use has the right to continue using the water".
    • Riparian doctrine was applied in the eastern states.  There were attempts to apply riparian doctrine as the western states were settled by Europeans, but the needs of the region led to the prior appropriation doctrine.
  • Who else may use the water -- only the person or entity that holds the water right or can the holder of the water right allow others also to use the water?  
    • Can there be collective use of a water right, such as a municipality, irrigation district or water district?
      • Examples of entities in North Dakota that supply water for others to use are the Southwest Water Authority and the Northwest Area Water Supply Project.
  • How do appropriators document their use of the water; for example, post a sign at the location of the water use, establish their legal right in a judicial proceeding, or secure a permit from the designated state agency?

 

  • How can the water be used?
    • Earliest uses of water (especially in the east) included domestic/household, navigation, industrial power, and municipal purposes.
    • Additional uses of water (especially in the west) include mining and irrigation, as well as for domestic purposes and navigation.
    • Subsequent uses due to industrialization include municipal use, hydro-electric generation, and industrial use (for example, water is used in the production of coal and oil energy in western North Dakota).
    • More recently recognized water uses include recreation and natural habitat (including minimum in-stream flow).
    • Can water be stored?  How can stored water be subsequently used?
      • A question posed in early 2015 is whether the State of Colorado can grant a water right to irrigate marijuana if marijuana is illegal according to federal law?

 

  • What happens when there is not enough water to meet the needs of all existing users?  Which use of water is most important or has priority to continue using the limited amount of water?  Which user must discontinue using water during the shortage?  Is priority based on location of use, type of use, when the use was initiated, quantity being used, or some other criteria?
    • If two potential users are seeking a water right but there is not enough water to initiate both uses, which use receives priority?  Note that this question is different than the previous question of "who has to discontinue using water if there is not enough water for all users to continue using water".

 

  • When can the water be used? Can the water be used at any time during the year or can it be used only during certain times of the year so the water can be used by someone else during those other times?

 

  • How much water can be used?
    • As much water as can be put to a "beneficial use" under Prior Appropriation doctrine
    • As much water as can be put to a "reasonable use" under Riparian doctrine
    • A quantity that results in a safe yield or sustained yield of groundwater
  • How much water can be diverted?  Diverting water means there is less water for other users.
  • How much of the diverted water can be consumed?  Some water uses do not consume water in which case, is the water returned to the source and available for another user?  Conversely, water that is consumed by one user is not available for another appropriator.

 

  • Where can the water be used?  Can the water be transferred from its source to another place for use? The location of use can impact where any unused water is released and thus impacts who has access to the released water.
  • Where can the water be diverted? The location of the diversion impacts who else can divert water from that water source.
  • Can water be "used" without diverting the water from its source?  For example, is retaining water in a river to support aquatic life a "use"? Is "in-stream flow" a water use?

 

  • Must unused ("not consumed") water be released so others can use it, or can the appropriator reuse water?
    • For example, the City of Fargo is selling its gray water to an ethanol plant rather than discharging it into the Red River as it has in the past.  Does such a sale impact the water available for a downstream user, such as the City of Grand Forks?
  • Can the appropriator reuse (or even sell) water that is available because technology has decreased the quantity of water the appropriator consumes?
    • A flood irrigator is now using sprinkler irrigation and thus reducing the amount of water consumed; can the irrigator use the water to irrigate another tract of land?  Can the irrigator sell the water to another person who wants to use the water?
  • Where must unused water be released?  The location of the discharge impacts who has access to the released water.
  • Can the point of release be changed?

 

  • Can a user interfere with another user's "means of diversion"? Can I dig a deeper water well next to your well?

 

  • Can the use of water be changed?  A different use may mean different consumption and thus impact the availability of water for those who previously relied on the release of unused water.
  • Can a water right be transferred to another user?  Such a transfer may impact the quantity and location of unused water. 

 

  • Can a water right be lost (abandonment, forfeiture, adverse possession)?
    • The policy issue that underpins this question is whether the holder of the water right can transfer the water right to another user if the current water user is no longer interested in using the water?  Owners of real and personal property have the right to transfer (sell or lease) their property to another person, but is a water right different in that the right to use the water reverts back to the state once the user is no longer interested in using the water?
    • If a water right is lost, to whom does the right transfer -- to the state, to another water user, or to some other person?
  • Again, can the holder of a water right transfer (sell or lease) the water right to another person? 
  • Can a water right expire or is the water right a perpetual right?
  • Can the state terminate a water right even though the holder of the right is currently using the water?  Can the state terminate a water right that is being used if the state feels that a new need for water is more important than the current use?

 

  • Who enforces a water right; the competing user or the state?

 

The eastern states and western states generally apply different basic rules when appropriating water among users.

  • Riparian doctrine is applied in the eastern states
  • Prior appropriation doctrine and its evolution is applied in the western states
  • But riparian doctrine in the eastern states also is evolving.

 

Despite the predominance of state law, federal also impacts water; for example,

  • The Winters doctrine is the principle that the federal government reserved water rights for tribal uses.
    • All water was owned by the federal government before states were granted statehood; some water was reserved for federal government purposes when ownership of the remaining water was transferred to a newly created state.  How much water was reserved and for what purposes or uses? 
  • International water issues, such as water issues between the United States and Canada, are resolved according to federal law; for example, the International Joint Commission between the United States and Canada.
    • "The International Joint Commission prevents and resolves disputes between the United States of America and Canada under the 1909 Boundary Waters Treaty and pursues the common good of both countries as an independent and objective advisor to the two governments."  excerpt from http://www.ijc.org/en_/IJC_Mandates.
  • Interstate water disputes are resolved according to federal law
    • Interstate water disputes are litigated by the states on behalf of their water users; U.S. Supreme Court has original jurisdiction for interstate disputes; therefore, interstate water disputes are litigated in the U.S. Supreme Court.  For example,the states of Montana and Wyoming argued before the U.S. Supreme Court in 2011 in a dispute over irrigation in Wyoming and its impact on downstream Montana.
    • States, with the approval of Congress, can enter into interstate compacts; such agreements have been used to resolve interstate water disputes.
    • The U.S. Supreme Court has interpreted federal statutory law as effectively allocating the water of the Colorado River among the states in its basin. Might Congress enact additional statutes to resolve other interstate water issues?
  • Other federal reserved rights; for what other purposes did the federal government reserve water rights as the states were granted statehood?

 

Does anyone have water rights that predate the federal government; that is, does anyone have water rights that predate the late 1700s?

 

This page introduced a variety of legal issues relating to acquiring the right to use water and hopefully demonstrated the breadth of issues.  A student should be able to address many of these questions after being introduced to the subject of water law. 

  • Note these topics do not address the legal issues relating to the discharge of unwanted water.

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Next Topic

The next topic introduces some of the science about water and some background about the United States use of water; see http://www.ag.ndsu.edu/ndwaterlaw/acquiringwater/science.

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Disclaimer

Email:  david.saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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