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Acquiring a water right

Common law (court decisions) established the fundamental parameters of the prior appropriation doctrine. This page reviews those parameters and illustrates how they have been codified into subsequent statutes and regulations. Many of the examples reflect North Dakota statutes and regulations.

 

 

Prior appropriation in the United States arose as court-made (common) law.  Basic principles were that a water appropriator (user) acquired the right to use the water simply by putting the water to a beneficial use and the first person to put the water to a beneficial use had legal priority over other users of that water source.  Disputes among water users were resolved by litigation to establish who had priority.  As the population and water uses increased, most western states codified these legal principles in their statutes and regulations. 

North Dakota law for acquiring a water right is codified in Chapter 61-04 of the North Dakota Century Code.  This web page reviews the statutes.  Materials from Weber, Harder and Bearden's Cases and Materials on Water Law (9th ed) and from other states have been incorporated to clarify the explanation.

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Beneficial Use

To use or appropriate water, the user must have the right to use the water, but the questions then become who can acquire a water right, how is a water right acquired, when does a water right arise, how much water may the person use, how long can the person use the water, and other such questions

Initially (roughly the mid-1800s in the western United States), the answer to these questions were:  whoever puts the water to a beneficial use is entitled to the water; the person's right to use the water arose when the person put the water to a beneficial use; the person is entitled to use as much water as they can put to a beneficial use; the person is entitled to use the water as long as the water is being put to a beneficial use; and similar concepts.  The point is that beneficial use is the legal concept underpinning prior appropriation doctrine.

The fundamental or foundational role of beneficial use continues even as the common law of prior appropriation doctrine has been codified into statutory law.  For example: 

N.D.C.C. §61-04-01.2. A right to appropriate water can be acquired for beneficial use only as provided in this chapter. Beneficial use shall be the basis, the measure, and the limit of the right to the use of water.

Comment:  As prior appropriation doctrine was being developed in the common law, a water right arose through the action of beginning to use the water. Subsequently, the common law recognized a water right when the user posted notice at the point of diversion (or point of intended diversion) that water was being (or would be) used.  As prior appropriation doctrine has been codified, state legislatures have clarified that past practices no longer can be used to establish a water right.  The North Dakota statute is consistent with this intent; that is, the ONLY way to acquire a water right is according to the statute (as quoted above).  Past common law procedures can no longer be used to establish a water right.

  • See N.D.C.C. §61-01-03 wherein the legislature states that water uses prior to 1905 will be based on initiating use, but that water rights in the state, thereafter, will be based on the permit application process.

Comment:  A water user acquires the legal right to use the resource only if the water is put to a "beneficial use" (basis).  Likewise, the user acquires the right to only the quantity of water that is put to a beneficial use (measure); i.e., a person cannot acquire the right to more water than the person can use.  How the person uses the water when the right is acquired is the only purpose for which the water can be used (limit).  But the types of use that fit the definition of a beneficial use is broad, as discussed subsequently.

  • For an additional example of beneficial use as the basis, measure and limit of a water right, see Utah Code 73-1-3.

The common law (historical) elements for an appropriation under prior appropriation doctrine (authors' notes on pp. 25-26 of Weber's 9th ed.) include

  • an intent to appropriate,
  • notice of the appropriation,
  • compliance with state law,
  • a diversion of water, and
  • applying the water to a beneficial use within a reasonable time. 

The appropriation also needs to specify the source of water, point of diversion, place of use, purpose of use, quantity (flow, volume or both), and priority date.  These elements of the water use also could be incorporated into the concept that the current beneficial use defines the "limit" as to how the water can be used in the future.  The discussion subsequently returns to these elements.

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What is the definition of Beneficial Use?

N.D.C.C. §61-04-01.1(2)."Beneficial use" means a use of water for a purpose consistent with the best interests of the people of the state.

Montana statutory law (MCA 85-2-102(4)) at http://leg.mt.gov/bills/mca/85/2/85-2-102.htm

(4) "Beneficial use", unless otherwise provided, means:

(a) a use of water for the benefit of the appropriator, other persons, or the public, including but not limited to agricultural, stock water, domestic, fish and wildlife, industrial, irrigation, mining, municipal, power, and recreational uses;
(b) a use of water appropriated by the department for the state water leasing program ... and of water leased under a valid lease issued by the department ...
(c) a use of water by the department of fish, wildlife, and parks through a change in an appropriation right for instream flow to protect, maintain, or enhance streamflows to benefit the fishery resource ...
(d) a use of water through a temporary change in appropriation right or lease to enhance instream flow to benefit the fishery resource ...
(e) a use of water for aquifer recharge or mitigation; or
(f) a use of water for an aquifer storage and recovery project ...

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Does the Water User Need a Permit?

N.D.C.C. §61-04-02. Any person, before commencing any construction for the purpose of appropriating waters of the state or before taking waters of the state from any constructed works, shall first secure a water permit from the state engineer unless such construction or taking from such constructed works is for domestic or livestock purposes or for fish, wildlife, and other recreational uses.

Comment: Some definitions will help explain this statute.

N.D.C.C. §61-04-01.1(11) "Person" includes political subdivisions, corporations, limited liability companies, partnerships, associations, the United States and its departments or agencies, the state of North Dakota and its departments or agencies, and any other legal entity.

Comment:  This statute indicates the even the federal government must acquire a water right from the state.

Historical Exception  N.D.C.C. §61-04-22 A person who used (or attempted to appropriate) water from any source for beneficial use over a period of twenty years prior to July 1, 1963, is deemed to have acquired a right to the use of the water without having filed an application ...

Comment:  This statute recognizes that in the past, a water right could have been acquired in North Dakota through use of the water without a permit.  The 1963 date of this statute clarifies that water rights now can only be acquired in North Dakota according to the permit process. As discussed on another web page, this statute also implies that a water right CANNOT be lost to another water user via adverse or prescriptive use.

Also see Montana Code §85-2-301(3).  "A right to appropriate water may not be acquired by any other method, including by adverse use, adverse possession, prescription, or estoppel. The method prescribed by this chapter is exclusive."

In states like North Dakota, where all the water is considered owned by the state, all water uses need permission from the state even if a permit is not needed.  For example, North Dakota statutory law grants permission for persons to use water for domestic purposes even if the state law does not require a permit.  In other states where water is considered owned by a person (such as a state wherein groundwater is considered owned by the owner of the land surface, the state's permission is not needed to use the water.

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  • Can a right to unappropriated water be acquired from the state through adverse possession (prescription)? Can any property rights be acquired from a public entity through adverse possession? The answer is probably no, especially in the states where courts have ruled that the permit system is the exclusive method for acquiring a water right.
  • Can one acquire a water right by adversely possessing the land to which a water right is attached?  If the land is acquired by adverse possession and the water right is appurtenant to the land, it appears that the water right can be acquired.  For example, see N.D.A.C. 89-03-02-08.  Using the water for its purpose during the time the land is adversely possessed would probably strenghten the claim of the adverse possessor.

  • How do states correct the record for long-standing non-permitted uses?
    • Adjudicate the water right?
    • Require that the use be recorded, otherwise, it will be considered abandoned and forfeited; see N.D.C.C. §61-04-22, as an example.

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What water is subject to state oversight?

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Waters of the State

N.D.C.C. §§61-04-01.1(13) & 61-01-01 "Water of the state" or "waters of the state" means all waters within the limits of the state from the following sources of water supply belong to the public:

1. Waters on the surface of the earth, excluding diffused surface waters but including 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

2. Waters under the surface of the earth whether such waters flow in defined subterranean channels or are diffused percolating underground water;

3. All residual 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 areas. A noncontributing drainage area is any area that does not contribute natural flowing surface water to a natural stream or watercourse at an average frequency more often than once in three years over the latest thirty-year period. 

Comment:  note the breadth of the definition; there is little water in North Dakota that is not owned by the state.

Does the law of appropriation apply to springs, lakes, ponds, runoff retained to prevent flooding downstream, glaciers and other sources?  The answer to this question depends on the law of the state but a state, such as North Dakota, would likely answer the question as "yes".

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Note that North Dakota water appropriation law even applies to seepage:  N.D.C.C. 61-14-13. Seepage water.

  • "In the case of seepage water from any constructed works, any party desiring to use the same shall make application to the state engineer, as in the case of unappropriated water, and such party shall pay to the owner of such works a reasonable charge for the storage or carriage of such water in such works, if the appearance of such seepage water can be traced beyond reasonable doubt to the storage or carriage of water in such works. The state engineer shall not issue a permit to appropriate such seepage waters until an agreement for the payment of such charges shall have been entered into by the said parties."

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Diffused Surface Water

Diffused surface water is not water of the state according to North Dakota law.

Comment: examples of diffused surface water are runoff from rain or snowmelt; the statute suggests that water is NOT diffused (and thus it is owned by the state) if it is flowing in well-defined channels. The definition of a watercourse (N.D.C.C. §61-01-06) may help illustrate when water is no longer considered diffused:  "A watercourse entitled to the protection of the law is constituted if there is a sufficient natural and accustomed flow of water to form and maintain a distinct and a defined channel. It is not essential that the supply of water should be continuous or from a perennial living source. It is enough if the flow arises periodically from natural causes and reaches a plainly defined channel of a permanent character. If requested by a water resource board, the state engineer shall determine if a watercourse is constituted."

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State v. Hiber, Wyoming, 1935 (p. 85 of Weber's 9th ed.)

  • Hiber built a dam which cut off the flow to Abramson; the state brought an action to enjoin Hilber. The trial court ruled for Hilber and the Wyoming Supreme Court affirmed.
  • All water in natural streams are property of the state -- was this draw a natural stream that the state could control, or was this diffused water that could be impounded without regulation by the state?
  • Surface water that is diffused over the surface, derived from falling rain and melting snows, may be impounded by the owner of the land until it reaches a well-defined channel.
  • Watercourse -- well-defined bed and banks and a current of water.
  • Watercourse -- a definite channel even though the flow is not constant
  • Watercourse -- well-defined substantial existence even though it is not enough to create itself a bed and banks
  • In this case, the area was dry nearly all the time, has no banks, easily crossed by a vehicle, small watershed, grassy condition; therefore, Hiber could impound the diffused surface water.

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Types of Water Uses

Water is used in many different ways.  North Dakota statutory definitions of water uses are provided as an example.  The will vary, however, from state to state.

N.D.C.C. §61-04-01.1(4) "Domestic use" means the use of water by an individual, or by a family unit, or household, for personal needs and for household purposes, including heating, drinking, washing, sanitary, and culinary uses; irrigation of land not exceeding five acres [2.0 hectares] in area for noncommercial gardens, orchards, lawns, trees, or shrubbery; and for household pets and domestic animals kept for household sustenance and not for sale or commercial use, when the water is supplied by the individual or family unit. Also included within this use are "domestic rural uses" ...

N.D.C.C. §61-04-01.1(9) "Livestock use" means the use of water for drinking purposes by herds, flocks, or bands of animals kept for commercial purposes.

N.D.C.C. §61-04-01.1(5) "Fish, wildlife, and recreation" means the use of water for the purposes of propagating and sustaining fish and wildlife resources and for the development and maintenance of water areas necessary for outdoor recreation activities.

N.D.C.C. §61-04-01.1(6) "Industrial use" means the use of water for the furtherance of a commercial enterprise wherever located, including manufacturing, mining, or processing.

N.D.C.C. §61-04-01.1(8) "Irrigation use" means the use of water for application to more than five acres [2.0 hectares] of land to stimulate the growth of agricultural crops, including gardens, orchards, lawns, trees, or shrubbery, or the maintenance of recreation areas such as athletic fields, golf courses, parks, and similar types of areas, except when the water for the facility is provided by a municipal water system.

Comment: note that the North Dakota legislature has defined a distinction between watering a large garden (a domestic use) and irrigation.  If the area is more than 5 acres, the use of the water is irrigation, regardless of what the user may want to call the water use.  Once the use is irrigation, rather than domestic use, the user will need a permit before initiating the water project.

Question:  under North Dakota law, would watering an area of less than 5 acres for commercial purposes be irrigation? 

N.D.C.C. §61-04-01.1(10) "Municipal or public use" means the use of water by the state through its political subdivisions, institutions, facilities, and properties, and the inhabitants thereof, or by unincorporated communities, subdivision developments, rural water systems, and other entities, whether supplied by the government or by a privately owned public utility or other agency or entity, for primarily domestic purposes.

Comment:  a permit is needed to build water storage and a permit is needed to use stored water, see N.D.C.C. §61-04-02; Can this be the same permit?

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Where can the water be used?

Coffin v. Left Hand Ditch Co., Colorado, 1882 (p. 98 of Weber's 9th ed.)

  • Appellants tore out appellee's dam because the dam diverted water and left the appellants without enough water to irrigate their land.
  • Appellants' land was riparian to the stream and thus the appellants argued their right is based on riparian rights (which appellants argue Colorado recognized until 1876) and appellee's use (which is non-riparian) has a lower priority.
  • Court rejected the argument that Colorado adhered to riparian law until 1876; instead, court indicated that priority appropriation was recognized before then.
  • Also, the right to use water under the prior appropriation doctrine does not limit the user to using the water in the watershed of its source. The water right can be established to allow the water to used in another valley (watershed).

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The case holds that the water can be use on non-riparian land?  How far can the water be moved?  Can it be moved to another basin?

  • California -- cannot remove water necessary for development.
  • Colorado -- exporting water cannot increase the cost for users in the basin of origin; thus the exporter replaces the water by providing storage in the basin of origin.
  • Nebraska -- return water to river of origin or Missouri River; since all of Nebraska is drained by Missouri River, water can be moved throughout the state as long as there is unappropriated water and the use would not be detrimental to public welfare.
  • Texas & Kansas -- allow water to be moved between basins as long as benefits of importing exceed cost to users in the basin of origin.

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Do states regulate land use to block interbasin transfer? (Colorado)

Should states rely on the market to determine water use, rather than an administrative agency?

Can the water be moved to another state?

  • Is it constitutional for a state to prohibit the interstate movement of water? See Sporhase v. Nebraska (p. 104 & 630-635 of Weber's 9th Ed.).  "Water is an article of commerce." The state's interest in conservation and preservation of groundwater lends justification for a limitation on interstate movement of water.  Prohibiting interstate transfer to a state that prohibits interstate transfer to the first state does not justify an interstate prohibition by the first state (the reciprocity provision in the Nebraska statute concerned the court).

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Need a permit -- Revisited

N.D.C.C. §61-04-02 (continued). Regardless of proposed use, however, all water users shall secure a water permit prior to constructing an impoundment capable of retaining more than twelve and one-half acre-feet of water or the construction of a well from which more than twelve and one-half acre-feet of water per year will be appropriated.

Comment: note that regardless of the use, once the volume reaches 12.5 acre-feet, a water permit is needed before the project is initiated.  An implication of this statute is that a large use of water for livestock is required to have a permit.  If such a distinction is not defined, a situation could arise where a substantial use of water for livestock would not require a permit.  Such a situation arose in the State of Washington; see http://www.ecy.wa.gov/programs/wr/hq/swwg.html.

However, immediately upon completing any constructed works for domestic or livestock purposes or for fish, wildlife, and other recreational uses, the water user shall notify the state engineer of the location and acre-feet capacity of such  constructed works, dams, or dugouts.

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Optional permit

If a permit is not required of a landowner or the landowner's lessee to appropriate less than 12.5 acre-feet of water from any source for domestic or livestock purposes or for fish, wildlife, and other recreational uses, those appropriators may apply for water permits to clearly establish a priority date ...

Conditional permit and perfected permit

Conditional permit and perfected permit -- N.D.C.C. §§61-04-06.2 and 61-04-09.

  • Conditional permit allows user to begin constructing "works" knowing that when the project is completed and water is put to a beneficial use, water will be available.  A perfected permit means the user has put the water to a beneficial use.

Priority dates from time of filing an application for the "conditional" permit -- N.D.C.C. §61-04-06.3.

  • "Relation back", p. 71 of Weber's 9th ed.
  • Without the protection of a conditional permit (that is, without the assurance that when a water user puts the water to a beneficial use the user will have a water right dating back to when the user began to construct the works), potential water users would be reluctant to invest the resources necessary to construct a water project.
  • Without a distinction between a conditional permit and a perfected permit, granting a permit when the project is initiated (long before the project is completed and water is put to a beneficial use) would result in the appropriator being granted a water right without putting water to a beneficial use.
  • Thus the conditional permit is used to assure the appropriator will be granted a water right and priority once the project is completed and water is put to a beneficial use, but the process also allows the state to delay granting the appropriator a water right until the water is put to a beneficial use.

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Criteria for granting conditional permit

N.D.C.C. 61-04-06 If the four conditions (criteria) are found, the (conditional) permit will be granted ("state engineer shall issue a permit if the state engineer finds all of the following").

  • Rights of prior appropriator will not be unduly affected.
  • Proposed means of diversion are adequate.
  • Proposed use of water is beneficial.
  • Proposed appropriation is in the public interest; in determining public interest, the state engineer shall consider
    • a) the benefit to applicant,
    • b) effect of the resulting economic activity,
    • c) effect on fish and game resources, and public recreation,
    • d) effect of loss of alternative uses for the water that might be made within a reasonable time,
    • e) harm to other resulting from the proposed appropriation, and
    • f) intent and ability of applicant to complete the appropriation.

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In-stream Use and Diversion

Note the requirement in North Dakota's statutory law that water be diverted in order for a water right to arise, but also reconsider the non-diversionary water uses mentioned in chapter 1 of Grant's 9th ed.  Water law (especially prior appropriation doctrine in the western states) first focused primarily on diversionary uses (e.g., mining and irrigation); we now recognize non-diversionary (e.g., in-stream) uses.  At some point in time between establishing our water law and where we are today, there was conflict between a diversionary use and an in-stream use, and the law changed. 

 

Diverting water provided notice of many of the elements needed to establish a water right (e.g., intent, beneficial use, source, point of diversion, place of use, purpose of use, quantity).  That is, an appropriator fulfilled most of the required elements by diverting water. 

  • Of course, a key element was missing, that is, date of beneficial use or priority relative to others appropriating from the same water source.  Accordingly, the legal system began relying on the courts to establish priority dates but this system became cumbersome (and perhaps inconsistent) as each appropriator litigated with every other appropriator. 
  • The next step to simplify the process was for the courts to adjudicate the water rights (quantity, priority, etc) for all appropriators drawing from the same source (such as a river) in a single judicial action.  The legal system was recognizing that the act of diverting water did not provide all the information needed to fulfill the elements of appropriation.
    • For example, see Arizona's §45-152.01.  
  • Diverting water also became less effective as a means of providing notice when non-diversionary uses began to be recognized. 
    • Diversion v. non-diversionary (in-place) uses -- the rule is changing in some states (an in-place use is recognized as a beneficial use and entitled to the same legal protections as a diversionary use).  This change is partially due to "permit systems" (diverting water is no longer needed to provide notice of appropriation) and partially due to a different understanding of "what is a use of water." 

Is Diverting Water still an Element of a Water Appropriation?

Does water need to be removed from the river or stream to be considered "appropriated?" The old rule was that the water had to be diverted for a right in the water to arise.  More recently, the law is recognizing that "in-stream uses" will be considered appropriations and protected under the law.

Is an in-stream use considered a beneficial use? How does an in-stream use relate to the requirement of diverting water?

Idaho Department of Parks v. Idaho Department of Water Administration, Idaho 1974 (p. 29 of Weber's 9th ed.)

  • 1971 legislation defined scenic beauty and recreation uses as a beneficial use of water.
  • Department of Parks filed an application for a permit to appropriate water in Malad Canyon.
  • Water Users argue that state constitution prohibits a statute that recognizes preservation of aesthetic values and recreation as a beneficial use. They argue that the constitution limits beneficial use to those specified -- domestic, agriculture, mining, manufacturing, and power.
  • Court does not interpret constitution as limiting beneficial uses to those specified; instead the statute is an indication of an emerging recognition of social values and benefits from the use of water.
  • Concurring opinion: water was being used for other purposes at the time the constitution was adopted, past uses have not been limited to those specified; the legislation recognizes the changing needs of society. Definition of beneficial use must change with changing conditions, but it must include a requirement of reasonableness.
  • Dissenting opinion: in-stream use should not be granted a permit, but instead the impact on scenic and aesthetic values should be a consideration in deciding whether future applications for a permit to divert water should be granted.

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The authors' notes (pp. 27-29 and 32-33 of Weber's 9th ed.) address how states have answered several questions about the need to divert water to establish a water right.

  • Is an in-stream use a beneficial use?
    • The dissent in the preceding case probably aligns with North Dakota's perspective on granting permits for in-stream uses; that is, permits will not be granted for in-stream uses, but "the effect on fish and game resources and public recreational opportunities" (N.D.C.C. §61-04-06 (4)(c)) will be considered in deciding whether to grant a permit to divert water for a beneficial use.
    • Does North Dakota law allow a permit to be granted to divert water for fish, wildlife, and other outdoor recreational uses? See N.D.C.C. §61-04-06.1.
    • But see Instream Flows In Washington, Department of Ecology.
    • Also see Washington's Chapter 90.22
  • Can in-stream appropriations be held by private parties or only by public agencies?
  • Can a diversionary use of appropriated water be changed to an in-stream use?
  • Can an in-stream appropriation be decreased (we will see that diversionary appropriations can be decreased for specific reasons; should in-stream appropriations be subject to the same rules)?

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Nebraska Game and Parks Commission v. The 25 Corporation, Inc. Nebraska, 1990 (not included in Weber's 9th ed.; instead see In Re Adjudication of the Missouri River Drainage Area, Montana, 2002 at p. 22 of Weber's 9th ed.)

  • A state agency applied for a permit so the water could be used for in-stream purposes. Another state agency (director of water resources) partially granted the permit on the basis of a state statute.  A third party objected to granting the permit arguing that the state constitution prohibits granting a water right without a diversion of the water from its source.
  • Issue -- does Nebraska's constitution prohibit water permits for in-stream uses; restated, is a diversion of water necessary for a permit to be granted (without a permit, the water would be considered unappropriated and available for a subsequent user, thereby eliminating any protection for the in-stream purpose).
  • Discussion -- Nebraska's constitution does not prohibit in-stream uses. The word "divert" in the state constitution allows water to be applied to non-riparian uses (which is a key characteristic of prior appropriation theory), but it does not mandate that all uses of the water involve a diversion.
  • With a permit system in place, the state no longer has to rely on demonstrated use to provide notice of a water right.
  • But does granting a permit for in-stream uses unconstitutionally deprive a third party of the right to divert unappropriated waters?
  • Holding -- Nebraska's constitution allows and requires that water be appropriated in accordance with public interest, and public interest (according to Nebraska law) recognizes the need to consider in-stream uses for fish, wildlife, and recreation.

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In Re Adjudication of the Missouri River Drainage Area, Montana, 2002 (p. 22 of Weber's 9th ed.)

  • Questions before the court: are fish, wildlife and recreation uses recognized as beneficial uses, and is a diversion required for appropriation purposes?
  • Common law elements of a valid appropriation are intent, notice, diversion, and application to a beneficial use.
  • The Montana water court stated that because Montana did not recognize water rights for fish, wildife and recreation, the Montana Department of Fish, Wildlife and Parks could not have intended to appropriate water for those purposes, and therefore its claims are invalid.
  • Montana Supreme Court stated that it was not clear whether the water court took this stance because there was no diversion or because it found no notice of intent to appropriate water.
  • Under prior appropriation, a diversion served dual purposes: provided notice of user's intent to appropriate water and defined the extent of the use.
  • A diversion may prove intent to appropriate, but a diversion is not necessary; the doctrine of prior appropriation should not be interpreted as demanding a diversion of water where a diversion is unnecessary to achieve the intended beneficial use.
  • For example, the common law of prior appropriation doctrine already allowed appropriations without diversion when there is no practical need for a diversion, such as stock watering.
  • Beneficial use is the basis of the prior appropriation doctrine; Montana has long recognized the use of water for fish, wildlife and recreation as beneficial; Montana has validated other non-diversionary appropriations; therefore, Montana law does not absolutely require a diversion for a valid appropriation of water.
  • Holding:  the doctrine of prior appropriation does not require a physical diversion of water where no diversion is necessary to put the water to a beneficial use.

Also see In-stream Flows In Washington

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North Dakota's approach to the question of diversion

  • North Dakota's statutory criteria for a conditional water permit do not explicitly require a diversion. N.D.C.C. §61-04-06.
  • Another way to ask the question is 'can a permit be granted for an in-stream use, such as fish, wildlife, etc?'  North Dakota statutorily recognizes fish, wildlife and recreational uses of water.
    • N.D.C.C. §61-04-01.1(4) (defines fish, wildlife, and recreational uses of water)
    • N.D.C.C. §61-04-02 (addresses when a permit is needed for fish, wildlife and recreational uses of water)
    • N.D.C.C. §61-04-06.1 (specifies preferences in granting permits)
  • But North Dakota administratively requires the construction of a "works" as a criterion to receiving a conditional water permit
    • N.D.A.C. §89-03-01-07. A permit application may only be considered if works are associated with the proposed appropriation.
    • "Works" include canals, ditches, pipelines, and other conveyance systems, irrigation facilities, wells, pumps, dams, dikes, reservoirs, and other devices used for the appropriation or storage of water and land improved for irrigation. N.D.A.C. §89-03-03-01(3).
  • North Dakota has a public interest criterion which includes "effect on fish and game resources and public recreational opportunities" [N.D.C.C. §61-04-06(4)(c)]. Does North Dakota interpret this the same as Nebraska?

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16 U.S.C. §1271: "...selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations..." 

N.D.C.C. 61-29: preserve the Little Missouri River as nearly as possible in its present state which shall meant that the river will be maintained in a free flowing natural condition, without impoundment, diversion, straightening or other modification; but then there are exceptions for agriculture, recreation, flood control dikes, diking and riprapping).

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Email:  david.saxowsky@ndsu.edu

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