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Modifying a water right

Users may want to change how or where they use the water. This page introduces the legal steps that a water user may need to follow to modify the use of their water right.

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A question that arises with water rights is whether the user can change the water use.  This page discusses a variety questions relating to this general question.  The first section briefly addresses this question from the perspective of riparian doctrine and then addresses more detailed questions from the perspective of prior appropriation doctrine.

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Changing the Use of Water under Riparian Doctrine

An oversimplified answer is that a water use can be altered as long as the new use continues to meet the state's legal criteria, such as Reasonable Use or the criteria set forth in the Restatement of Torts

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Changing the Use of Water under Prior Appropriation Doctrine - Generally

A general consideration and objective when changing a water use under prior appropriation doctrine is preserving the date of priority of the original use for the new use.  An alternative to changing the water right is to extinguish it and then apply for a new water right.  However, the priority of the previous right would be extinguished and the priority of the new right would be "at the bottom of the list".  Accordingly, the question is how much change will be tolerated before the law declares the old use "abandoned" and requires the new use to apply as a new right.  Preserving the priority of the existing right underlies the discussion of nearly all of the following questions.

A related consideration in assessing whether an existing use of water can be modified is "how will the change impact other water users".  For example if the existing use is industrial and the water is primarily used for cooling, much of the water is returned to the water source and available for subsequent or additional uses.  If the holder of the water right decides to change the use to irrigate agricultural land, much of the water will be consumed and much less will be returned to the water source thereby reducing the quantity available for subsequent users.  In such an example, a change in the use can adversely impact other water users.  The question is whether the holder of the water right should (will) be allowed to change the use of the water.  Changing the location of use, especially if the new use is in another basin or watershed, can likewise adversely affect those who are "downstream" from the original use.

This page introduces a variety of situations involving a "change" or "modification" of an existing water use. 

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See Montana statutory law (MCA 85-2-402. Changes in appropriation rights) for an example of a statute detailing numerous provisions about change in water rights.

  • "the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that
  • ... the proposed means of diversion, construction, and operation of the appropriation works are adequate
  • The proposed use of water is a beneficial use 
  • ... the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use ...
  • If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant
  • The water quality of an appropriator will not be adversely affected
  • The ability of a discharge permit holder to satisfy effluent limitations of a [discharge] permit ... will not be adversely affected.

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See Nevada statutory law (NRS 533.345 and NRS 533.3703) for example of statutes addressing change in place of diversion, manner of use, and  place of use.  The statute also addresses consumptive use as a consideration in assessing the application for a "change".

"If an applicant is seeking a temporary change of place of diversion, manner of use or place of use of water already appropriated, the State Engineer shall approve the application if: ... (b) The temporary change is in the public interest; and (c) The temporary change does not impair the water rights held by other persons."

"The State Engineer may consider the consumptive use of a water right and the consumptive use of a proposed beneficial use of water in determining whether a proposed change in the place of diversion, manner of use or place of use complies with ...[the statute directing the state engineer's approval of an application]."

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See Utah statute 73-3-3.   Permanent or temporary changes in point of diversion, place of use, or purpose of use.

  • (2) (a) Any person entitled to the use of  water may make permanent or temporary changes in the: (i) point of diversion; (ii) place of use; or (iii) purpose of use for which the water was originally appropriated.
    (b) Except as provided by ..., a change may not be made if it impairs a vested water right without just compensation.
  • (4)(a) A person entitled to use water may not make a change unless the state engineer approves the change application.
  • (7) (a) Except as provided by ..., the state engineer may not reject a permanent or temporary change application for the sole reason that the change would impair a vested water right.
  • (8) (a) A person holding an approved application for the appropriation of water may change the point of diversion, place of use, or purpose of use.
    (b) A change of an approved application does not: (i) affect the priority of the original application; or (ii) extend the time period within which the construction of work is to begin or be completed.

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Decrease quantity diverted

No permission is necessary to reduce the amount of water diverted from the water source, but the user needs to recognize that reducing the quantity diverted may be evidence that the amount of water being put to a beneficial use is now less than in the past.  This reduction in use can result in an abandonment or forfeiture of the quantity that is no longer being used.  Any effort to resume the use of the abandoned or forfeited right would be futile.  Instead, the effort would be considered as establishing a new right with a new (later) date of priority.

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Increase quantity diverted

No permission is needed to increase the quantity of water only if the increase is within the quantity of the existing water right.  If the increased quantity will exceed the existing water right, the user must comply with the state law for acquiring a new water right for the additional amount.

In a state like North Dakota, the amount of water to be used in excess of the original water right will be considered a second water right, not an expansion of the first water right.

  • For example, a water user with the right to 15 acre-feet can divert up to that quantity.  If the user wants to expand the water use to 20 acre-feet, the additional 5 acre-feet will be considered an application for a new water right with a new (subordinated) date of priority.
  • If, between the time of the original permit and the time of applying for the second permit, another water right has been established by a neighbor, the new water right (if approved) will be subordinate to the neighbor's existing water right.

N.D.A.C. 89-03-02-11  Requests to increase a permittee’s pumping rate must be made in writing to the state engineer. The state engineer, prior to making a decision on the request, will consider what effect the increase has on other appropriators from the water source.

Note that this regulation does not increase the total quantity of water, only an increase in the pumping rate. Also note the state engineer will consider the impact on ALL water rights, not just superior water rights.

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Change in Purpose of Use

A water right is limited to its original use; recall that beneficial use is the "limit" of the water right.  If the water was put to the beneficial use of irrigation, for example, the water user cannot change the use to industrial.

In a state like North Dakota, the law provides a process for requesting a change in purpose of water use.

  • N.D.C.C. 61-04-15.1 A water right holder must apply to change the use of water; the state engineer may approve the change in the use of water as long as the change will not adversely affect the rights of other appropriators. 
    • Apply for change in purpose of use (N.D.A.C. § 89-03-02-01 to -03); notice of application to change purpose of use (N.D.A.C. § 89-03-02-05 and -06)

      • These regulations also apply to a change in the point of diversion.
    • Note that this statute states "other" appropriators.  As stated in the discussion of another question on this page, the law does not state "prior" appropriators, for example.  Accordingly, the rights of a subordinate appropriator may influence whether a prior appropriator can change the use of the water.
    • As stated above, the alternative for the appropriator wanting to make a change is to relinquish the water right to the state and apply for a new permit/right which would be subordinate to all rights existing at the time of the new application.  If this alternative would be followed, the decision whether to grant a new right for the new use would have to consider all existing rights, including those subordinate to the original right.  Accordingly, it is not illogical to consider ALL water rights when deciding whether to allow a change in use.
    • A change in use will be approved only if the new use is superior to the existing use, see N.D.C.C. 61-04-06.1.  For example, water used for irrigation can be changed to a municipal use, but could not be changed to an industrial use.
  • N.D.A.C. 89-03-02-01 et. seq.
    • Application to change the purpose of use of an existing water right must follow the same process as an application for a new water right, that is, notice, publication, etc.  The statute (N.D.C.C. 61-04-15.1) states that "[a]pplications for a change in ... any purpose of use shall be processed and evaluated in the same manner as an application for a water permit."

    • Does this language also require an opportunity for a hearing (N.D.C.C. 61-04-05.1) and the application of the same criteria (N.D.C.C. 61-04-06)?

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Note changes to in-stream rights, pp. 27-29 of Weber's 9th ed.

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Do not forget the Legal Alternative for Modifying a Water Right

The alternative solution to all of these legal issues is to declare the original use abandoned and to require the new use to pursue a new (subordinated) water right.

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Is there a fundamental alternative for modifying a water right?

States following the prior appropriation doctrine generally take a role in administering changes or modifications of water rights.  There are commentators, however, who urge that the administrative role of the state could (should) be diminished and that "market forces" take a larger role in determining the "modification" of existing water rights.

  • For example, see California Water Code, Div. 1, Chap. 7 (sec. 470-484); also see California Water Code, Div. 2, Part 1, Chap 1.5 (sec. 1020-1031).  The first statutes address Water Transfers; the second statutes address Water Leases.

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Change in (transfer) location of use

Can the appropriator use the water on different land?  Can the appropriator use the water on additional land?

  • N.D.C.C. 61-04-15 ... Any conditional or perfected water permit may ... be transferred, with the approval of the state engineer, to any parcel of land owned or leased by the holder of such water permit. Upon reasonable proof that such ... can be made without detriment to existing rights, the state engineer shall cause the water permit involved to be ... simultaneously severed and transferred from such land without losing priority of any right previously established.

  • The decision of the state engineer shall be final unless some party interested in the same source of water supply shall, within sixty days, bring appropriate action in the district court of the county in which the land is located appealing such decision.

  • Applications for transfer shall be in the form required by regulation.

Appurtenance

Salt River Valley Users' Association v. Kovacovich, Arizona, 1966 (p. 104 of Weber's 9th ed.)

  • Irrigators improved their use of water and then used the saved water to irrigate additional land.
  • The lower court allowed the irrigators to use the saved water. The Court of Appeals reversed. The original user is not entitled to use their saved water on additional acreage.
  • Other water users would not be harmed because the irrigators were using no more water; they only were using the water over more acreage.
  • A water right attaches to the land on which it is beneficially used; it is not a personal right.
  • Saved (salvaged?) water cannot be used on additional acreage. Beneficial use limits the water to the original land only.
  • Is this case being reversed through practices? 

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N.D.A.C. 89-03-02-10  No change in location of use of a conditional or perfected water permit will be granted if other appropriators rely upon the return flows from the permittee’s beneficial use of water.

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Assumption: early water rights were inflated and thus it was easy for senior appropriators to "save water" and expand their irrigated acreage. To limit the amount of water used, the law limited the acreage that could benefit from the water right. Recall that irrigation was a major influence on the development of the prior appropriation doctrine.

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But where is the motivation to save water? Again, see Montana's statute (MCA 85-2-419) on salvaged water.

  • "...holders of appropriation rights who salvage water may retain the right to the salvaged water for beneficial use. Except for a short-term lease pursuant to 85-2-410, any use of the right to salvaged water for any purpose or in any place other than that associated with the original appropriation right must be approved by the department as a change in appropriation right in accordance with 85-2-402 and 85-2-436, if applicable. Sale of the right to salvaged water must also be in accordance with 85-2-403, and the lease of the right to salvaged water must be in accordance with 85-2-408, 85-2-410, or 85-2-436."

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North Dakota procedure and criteria to transfer location of water use

  • Change in location of use but do not change the user.
    • See N.D.C.C. §61-04-15 Water permit may be transferred to any parcel owned or leased by the holder of the permit upon reasonable proof that such assignment can be made without detriment to existing rights. Water permit can be severed and transferred without losing priority.
    • N.D.A.C. §89-03-01-03.1 same applicant but different location -- Transfer of an application (for a conditional permit) to another parcel
    • N.D.A.C. § 89-03-02-09 same user but different location -- Applications for the transfer of a water permit to another parcel of land owned or leased by the permittee must be submitted to the state engineer on the form provided by the state engineer. 

    • N.D.A.C. § 89-03-02-10 change in location of use -- "No change in location of use of a conditional or perfected water permit will be granted if other appropriators rely upon the return flows from the permittee’s beneficial use of water."

    • N.D.A.C. 89-03-01-10.1. To accommodate annual crop rotation requirements, the holder of a water permit for irrigation may make a request to the state engineer for the temporary transfer of the volume of water appropriated from an approved point of diversion to another tract of land. The transfer must be made for an entire irrigation season and conform to the terms and conditions of the water permit, except that no water right will accrue to the land under temporary irrigation. Irrigation may not take place on the tract of land from which the transfer is made during that irrigation season. The request for a transfer must be made by May fifteenth of the year the transfer is to be in effect.

  • Allow water to be used on additional acreage as long as other appropriators are not injured.

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Change in location (or point) of diversion

Farmers Highline Canal & Reservoir Co. v. City of Golden, Colorado, 1954 (p. 211 of Weber's 9th ed.)

  • City of Golden petitioned for a change in the point of diversion. It had recently purchased irrigation rights and wanted to convert them to municipal uses.
  • Water is a property right, it is subject to sale, its point of diversion can be changed, and its use can be changed. But other users from the same source cannot be injured by the change, and the burden of proof is upon the party petitioning for the change.
  • Junior appropriators have vested right in the continuation of the stream conditions as they existed when they acquired their appropriation.
  • Irrigators (the prior appropriators in this case) cannot waste water, extend the use of their water, or lease (to another user) water they (the irrigators) are no longer using.
  • Changes in use of the water right should not injure subsequent appropriators.
  • Trial court findings did not align with its order (found no injury if 1.2 cfs were changed but then ordered 1.76 cfs to be changed).
  • General injury to the stream does not mean "no injury to the junior appropriators." Instead, if the change would deplete the source, conditions should be imposed to counteract the loss, and if the loss cannot be counteracted, the petition to change the point of diversion should be denied. Quantity of consumptive use and return flows after the change in the point of diversion can be considerations in deciding whether the change will be injurious to junior appropriators.
  • It is the purpose of the law to protect all appropriators.

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Also see authors' notes pp. 214-221

  • Transfer raises questions about changing a water right without losing priority.
  • Transfers are necessary responses to changing conditions. Should transfers be determined by administrative fiat or market forces?
  • What is the criteria for allowing the transfer of water rights? "No injury." We cannot overlook that one use can impact another use; or that changing one use can impact another use. So the issues include can I change the quantity consumed, the amount available as return flow, the dates of use, the timing of use, the quality of remaining water or return flows, etc.
  • Is "historic use" the limit of how water can be used in the future? That assures that other users will not be impacted by the change, but it also "locks" the water into its current application and provides little flexibility for it to be changed in response to change needs and changing technology. 
  • Does the rule of "no-injury" make economic sense? Does it allow our resources to be put to their "best" use?
  • Why do the rules for "transferring" water rights seem more concerned about junior appropriators (those rights that are subordinate to the right being transferred) than about senior appropriators (those rights that are superior to the right be changed)?
  • What is the procedure to transfer a water right?

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Bonham v. Morgan, Utah 1989 (p. 221 of Weber's 9th ed.)

  • Applicants sought change in point of diversion, place and nature of use.  Plaintiff sued state engineer; case was summarily dismissed for lack of standing.  Plaintiff appeals.
  • Plaintiff claims that applicant's change leads to annual flooding of plaintiff's land and this detrimentally impacts the public welfare.
  • Engineer concluded he could not consider plaintiff's concern since the engineer is limited to considering the impact on vested water rights, and plaintiff does not have any vested water rights in this case.
  • Plaintiff argued that state statute (sec 14) gives standing to any person aggrieved by the engineer's decision. Statute (sec 8) requires an evaluation of all damage to public and private property.
  • Court ruled that statute (sec 3) did not contemplate sec 8 and the plaintiffs did not fit within sec 14.
  • On appeal -- state engineer is required to undertake the same investigation in a permanent change as the statute mandates for an original appropriation; and plaintiffs fall within sec 14.
  • Complaint is reinstated.

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In North Dakota, a desire to change the point of diversion is handled like a change in use; that is, the permit holder must apply to the state engineer.

  • N.D.C.C. 61-04-15.1 A water right holder must apply to change the point of diversion; the state engineer may approve the change in the point of diversion as long as the change will not adversely affect the rights of other appropriators. 
  • Apply for change in point of diversion (N.D.A.C. § 89-03-02-01 to -03); notice of application to change point of diversion (N.D.A.C. § 89-03-02-05 and -06)
    • These regulations also apply to change in purpose of use

  • N.D.A.C. 89-03-02-01 et. seq.
    • Application to change the point of diversion of an existing water right must follow the same process as an application for a new water right, that is, notice, publication, etc.  The statute (N.D.C.C. 61-04-15.1) states that "[a]pplications for a change in the point of diversion ... shall be processed and evaluated in the same manner as an application for a water permit." 

    • Does this process include notice (N.D.A.C. 89-03-02-05), publication N.D.A.C. 89-03-02-06), opportunity for hearing (N.D.C.C. 61-04-05.1) and application of the same criteria (N.D.C.C. 61-04-06)?

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Change in method of diversion

I have not found any law directly on this point, but how much change in the process of capturing/diverting water will be tolerated especially if the change could impact the availability of water to other users?  Of course, a change in the process of capture that increases use or increases rate of capture have been addressed in a previous subsection.  Perhaps the laws on the "change in rate" and "change in location of diversion" are adequate to address any change in the method of diversion.

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Change in quantity consumed/discharged

Will an increase in the quantity consumed lead to a decrease in the quantity discharged and thus adversely impact other users who have been relying on the discharge for their use? 

  • Remember, North Dakota law (N.D.C.C. 61-01-01(3) ) states that discharged water is water of the state and thus available for subsequent users.

Would the law on "change in use" be adequate to address change in quantity consumed?  Is it reasonable to assume that change in quantity consumed will occur only if there is a change in use?  Or, is it possible for there to be a change in the quantity consumed without a change in use?

  • I still find myself retuning to the situation of the City of Fargo selling its gray water to an industrial plant (that will consume the water), rather than the City continuing to discharge the water into the Red River.
  • It appears that the City of Fargo had to acquire an additional "industrial" water permit in 2007.  Note, the permit was not pursued by the industry that is using the gray water; instead, the second permit was pursued by the City so it could then transfer the water to the industrial user.

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Change in location of discharge

Like a change in the quantity consumed/discharge, a change in the location of discharge can impact users who relied on the discharge.

Would the laws on "change in purpose of use" and "change in location of use" be adequate to address change in location of discharge?  Is it reasonable to assume that change in location of discharge will occur only if there is either a "change in purpose of use" or "change in location of use"? 

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Change the user (holder of the right); assign water right to another person (administrative process, sale, lease)

N.D.C.C. §61-04-15  Any conditional or perfected water permit may be assigned only upon approval by the state engineer ... Upon reasonable proof that such assignment ... can be made without detriment to existing rights, the state engineer shall cause the water permit involved to be assigned ... without losing priority of any right previously established.

The decision of the state engineer shall be final unless some party interested in the same source of water supply shall, within sixty days, bring appropriate action in the district court of the county in which the land is located appealing such decision. Applications for  assignment ... shall be in the form required by regulation.

The transfer of title to land in any manner whatsoever shall carry with it all rights to the use of water for irrigation of such land, except that any conditional or perfected water permit for irrigation purposes must be assigned in accordance with this section.

N.D.A.C. § 89-03-02-08 assignment of permit to another person -- "Applications for the assignment of a water permit to another person must be submitted to the state engineer in writing. When title of land on which there is a water permit for irrigation is transferred, either the transferee or the holder of the permit may apply for assignment of the water right."

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Transfer of groundwater rights

  • Pages 439-443 of Weber's 9th ed.
  • State granted city a permit to increase groundwater pumping over time to accommodate expected growth. This "groundwater" would be a combination of actual groundwater and surface water diverted to groundwater as a consequence of the pumping. State conditioned permit on city purchasing and retiring surface water rights over time to accommodate the increased pumping. Who will be forced to sell their surface water rights was not specified until later times. This failure to specify which surface rights would be acquired was considered illegal.
  • Alternatives for moving water between surface and groundwater uses -- exchanges, by-pass pumping and artificial recharge.
  • Economic incentives for users to change their water practices -- taxes, pricing.
  • Artificial recharge has been used to maintain groundwater. More recent alternatives to artificial recharge include using "pricing" to transfer water uses from one type to another.

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Forcing Transfer of Water Right by Eminent Domain

City of Thornton v. The Farmers Reservoir and Irrigation Co., Colorado, 1978 (noted on p. 227 of Weber's 9th ed.)

  • City of Thornton brought an action of eminent domain against the Irrigation Company to acquire water and water rights, ditches and ditch rights.
  • A 1975 statute allowed municipalities to exercise eminent domain but 1) three commissioners are appointed to determine the necessity of exercising eminent domain, 2) a city cannot condemn water rights for future needs in excess of 15 years, and 3) the city must prepare a community growth development plan to be presented to the three commissioners appointed by the court.
  • The district court ordered dismissal.
  • The supreme court reversed and ruled the 1975 statute unconstitutional as it applies to Thornton, a home-rule municipality.
  • The Colorado constitution delegated to home-rule municipalities full power to exercise the right of eminent domain; and once the city determined a necessity to condemn the water rights, the decision is not reviewable by the judiciary (such as, the three-member commission), absent a showing of fraud or bad faith.
  • A legislative statute is superior to an ordinance of a home-rule municipality in the case of a conflict relating to a matter of statewide concern. However, the constitution's explicit grant to home-rule municipalities of power to condemn cannot be denied by a legislative enactment.  Therefore, the statute requiring a three-member commission is unconstitutional.
  • DISSENT argues that home-rule has exclusive control over local and municipal matters only; and that matters of statewide concern remain subject to statewide regulation. Exercise of eminent domain over water rights is a matter of statewide concern and therefore is subject to the statute requiring the three-member commission.

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  • Can the power of eminent domain be used to shift water from one user to another? What are the implications of forcing the former user to give up all their water?
    • For example, N.D.C.C. 61-07-03. Powers and duties of board of directors. The board of directors of an irrigation district shall (7) Acquire by purchase, condemnation ... or otherwise (d) Water rights, but the board shall be required to offer an alternative water supply of equal quantity and comparable quality, either through the district works or otherwise, to the holder of any water rights which have been condemned.

    BUT

    • June 2005 -- U.S. Supreme Court decided the Kelo case addressing public use.
    • Syllabus: Held: The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause...
    • (a) Though the city could not take petitioners’ land simply to confer a private benefit on a particular private party, ... the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted “to benefit a particular class of identifiable individuals,” ... Moreover, while the city is not planning to open the condemned land—at least not in its entirety—to use by the general public, this “Court long ago rejected any literal requirement that condemned property be put into use for the . . . public.” ... Rather, it has embraced the broader and more natural interpretation of public use as “public purpose.” ... Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power...
    • (b) The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan’s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court’s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment...
    • (c) Petitioners’ proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic. Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized... Also rejected is petitioners’ argument that for takings of this kind the Court should require a “reasonable certainty” that the expected public benefits will actually accrue. Such a rule would represent an even greater departure from the Court’s precedent ... The disadvantages of a heightened form of review are especially pronounced in this type of case, where orderly implementation of a comprehensive plan requires all interested parties’ legal rights to be established before new construction can commence. The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan...
    • Statement from the opinion: We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.

    Also see North Dakota's response to the Kelo decision: ND Const. Art. I, Sec. 16 (second paragraph).

    • "a public use or a public purpose does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health. Private property shall not be taken for the use of, or ownership by, any private individual or entity, unless that property is necessary for conducting a common carrier or utility business."

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Other North Dakota statutes

  • Municipalities may purchase water -- N.D.C.C. §40-33-16; this statute does not explicitly address the authority to purchase a water right
  • Municipalities may exercise eminent domain to build and operate a waterwork system -- N.D.C.C. §40-05-01(36); does not explicitly authorize the use of eminent domain to acquire a water right; also see N.D.C.C. §40-05-02(19).

See Colorado statute §37-41-113(3) -- "Such board has the power ... to construct, acquire, purchase, or condemn any canals, ditches, reservoirs, reservoir sites, water, water rights ..."

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Rotate Water Use Among Users

Another means of managing water is to rotate the use of water among users.  For example, see Nevada law:  NRS 533.075

  • "To bring about a more economical use of the available water supply, it shall be lawful for water users owning lands to which water is appurtenant to rotate in the use of the supply to which they may be collectively entitled; or a single water user, having lands to which water rights of a different priority attach, may in like manner rotate in use, when such rotation can be made without injury to lands enjoying an earlier priority, to the end that each user may have an irrigation head of at least 2 cubic feet per second."

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Transfer of water rights by market transaction

Utah statute 73-1-10.   Conveyance of water rights 

(1) (a) A water right, whether evidenced by a decree, a certificate of appropriation, a diligence claim to the use of surface or underground water, or a water user's claim filed in general determination proceedings, shall be transferred by deed in substantially the same manner as is real estate.
     (b) The deed must be recorded in the office of the recorder of the county where the point of diversion of the water is located and in the county where the water is used.

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(3) (a) To update water right ownership on the records of the state engineer, a water right owner shall submit a report of water right conveyance to the state engineer.

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California Water Code

Section 475  The Legislature hereby finds and declares that voluntary water transfers between water users can result in a more efficient use of
water, benefiting both the buyer and the seller.
   The Legislature further finds and declares that transfers of surplus water on an intermittent basis can help alleviate water shortages, save capital outlay development costs, and conserve water and energy.
   The Legislature further finds and declares that it is in the public interest to conserve all available water resources, and that this interest requires the coordinated assistance of state agencies for voluntary water transfers to allow more intensive use of developed water resources in a manner that fully protects the interests of other entities which have rights to, or rely on, the water covered by a proposed transfer.

Sections 480-484 "The department shall establish an ongoing program to facilitate the voluntary exchange or transfer of water and implement
the various state laws that pertain to water transfers. The department shall seek to facilitate these transactions only if the water to be transferred is already developed and being diverted from a stream for beneficial use or has been conserved.
   The department shall create and maintain a list of entities seeking to enter into water supply transfers, leases, exchanges, or other similar arrangements. In addition, the department shall maintain a list of the physical facilities which may be available to carry out water supply transfers.
   The department shall prepare a water transfer guide ... "

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Topics based on Riparian Doctrine

How do I acquire water rights if I am not a riparian landowner?

Nonriparian Use: Grant

Pyle v. Gilbert, Georgia, 1980 (p. 299 of Weber's 9th ed.)

  • This case involves a well-established power mill urging natural flow theory against an upper stream new irrigator who urges the adoption of reasonable use.
  • Trial court ruled for the plaintiff; irrigation was an unreasonable use.
  • This court rules that determining whether irrigation is unreasonable is a question for the court.
  • Court rejects notion that water can be used only riparian land; instead, riparian rights are property rights that can be transferred; water law should be utilitarian and allow the best use of water.
  • Georgia recognizes the right to condemn water rights; and that water acquired through condemnation can be used on non-riparian land. If water can be acquired through condemnation for use on non-riparian land, it also can be acquired for use on non-riparian land by grant (purchase).
  • The only question remaining is whether the use of water to irrigate non-riparian land is reasonable, and that is a question to be resolved at trial.

A water right also can be acquired by lease, as long as riparian landowner's domestic (natural) needs are not substantially impaired.

Can a non-riparian entity acquire water rights by prescription? See Pabst case on page 272 (7th ed.) which we are NOT discussing. The general answer is "yes."

 

How does an municipality acquire water rights in a riparian state?

Nonriparian use: Municipal supply

Adams v. Greenwich Water Co., Connecticut, 1951 (p. 304 of Weber's 9th ed.)

  • The defendant is a corporation that is to furnish water for public and domestic use to the town.
  • Plaintiff are riparian owners seeking to enjoin the diversion and the attempt by the defendant to take the water by condemnation.
  • Defendant began to pump water from the river when it became apparent that the original water sources would not be enough to meet the contract due to drought conditions.
  • Defendant admits it has no right to pump water from the river and will proceed to use condemnation, but that under the circumstances (drought and not enough water to the town) it was justified in its actions.
  • Even though water was being diverted, plaintiffs were not injured.
  • Previously, the General Assembly had granted the defendant authority to take by eminent domain.
  • Water company should plan 10 to 20 years into the future.
  • Trial court did not grant injunction because harm to plaintiffs was far outweighed by the needs of the defendant and the town it was supplying with water.
  • Eminent domain question -- "taking" water is allowed if it is for a public use and based on foreseeable future; courts will interfere with eminent domain in case of bad faith or unreasonable conduct.
  • Plaintiffs are entitled to be paid, but not necessarily entitled to an injunction. Court can deny an injunction if granting it would adversely affect public interest.
  • But the trial court did not impose a limit on when the defendant must acquire the water right by eminent domain; therefore judgment reversed with the trial court to determine a reasonable time in which the defendant must acquire the plaintiff's water rights and if that time is not met, an injunction will be issued.

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What is the value of riparian water rights, especially if I am not using my rights, or if my needs will be met even if the other use is developed?

Can a user proceed with inverse condemnation if the municipality does not initiate eminent domain?

The authority for municipalities to acquire water rights from riparian landowners is often based on specific statutes.

Hudson River Fisherman's Association v. Williams, New York, 1988 (p. 309 of Weber's 9th ed.)

  • Spring Valley Water Company provides water to Rockland County; it wants to build an additional reservoir and filtration plant to meet expected future needs.
  • During hearings, the need for additional water was obvious, but the timing of the need was in dispute.
  • Commission approved the project but established a triggering event for issuing the construction permits.
  • Concerns about the project include loss of trout habitat.
  • Petitioners argue that Spring Valley failed to demonstrate the public necessity for the construction of the water project -- the project should not be approved unless it will be developed in the immediate future.
  • Court rejects this argument for 3 reasons -- present need does not mean dire need; there is a need for greater peak demand capacity; the trigger mechanism assures permits will not be issued prematurely.
  • The trigger is based on average demand, rather than peak demand.  Even though peak demand is the greatest concern, average demand is an acceptable benchmark due to its relatively constant ratio to peak demand.
  • Environmental law was complied with; the requested mitigation would doom the project.  Mitigation had been provided, and the high priority of domestic and municipal uses was a consideration.

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Regulation of public water supply projects - state enacted statutes to authorize municipalities to acquire water to meet their needs. The statute was necessary to address the issues that arise under riparian rights; that is, there are non-riparian needs. But municipalities are required by the statutes to address a range of issues as part of acquiring the water rights.

Priority among competing public water supply projects - Pennsylvania - municipalities' unused water rights are cancelled, used rights must be registered (documented), and permit must be applied for.

Other rules - can only acquire water that is not already appropriated; imposed conditions on water usage; difficulty of determining whether downstream user is entitled to have the flow of the water undiminished; also, it is not clear that the upstream use is reasonable.

Federal regulation - federal law does not directly appropriate water, but laws such as Clean Water Act, Endangered Species Act, etc can influence whose project will be constructed.

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Closing Thought

Water law must balance between "stability and predictability" and "flexibility for changing conditions and needs." 

In the past, changes in use, location of use, location of diversion, user, quantity diverted, quantity consumed and other such matters were reviewed and subject to state government approval.  Protecting the rights of other users was a criterion in deciding whether to approve changes in a water right. 

An alternative is to allow users to buy and sell water rights,  much like the legal system allows parties to transfer other property rights.  Despite a trend toward market transactions for water rights, state laws retain a role for state government in administering changes in water rights.  Society is not quite willing to allow water resources to be entirely allocated by market values.

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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