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Extending the Use of Water

In the past, it may have been natural to think about using water once, that is, diverting it, using it and then discharging any amount that was not consumed. As demand for water increased, users became more innovative; "if there is not enough water to meet my expanding needs, can I extend the use of water that I can access? Can I reuse the water rather than discharge it to a public source? Can I bring water from another source? If I find ways to reduce my use of water, can I use the "saved" water to meet my expanded needs?"

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Can I reuse my water?

Department of Ecology v. Bureau of Reclamation, Washington, 1992 (p. 230 of Weber's 9th ed.)

  • A large federal irrigation project diverts water from the Columbia River. Farmers pay a fee to cover a portion of the cost of the federal project and are allowed to use the diverted water for irrigation purposes. Return flow waters accumulate and these are made available by the federal government to other farmers for irrigation (again) but at a lower cost.
  • Hanson owns land within the boundaries of the federal project and on which a stream flows with return flow water.
  • Hanson applies to the state for the right to use some of the return flows to irrigate more of his land. Even though Hanson's use of the water will not interfere with current users or foreseeable future users, the federal government opposed the application.
  • The state granted the permit.
  • On appeal, the issue is whether the return flow water is still subject to the water right held by the federal government.
  • Holder of water right owns no title to the water until it is diverted; and once diverted, the holder owns a personal property; but does the appropriator's right continue in the water even though it has been used, left the appropriator's land, and entered a natural watercourse?
  • One argument is that the water remains the appropriator's as long as it is on the appropriator's land; in that case, the federal government wins and the state could not grant Hanson a permit to use the water.
  • The state's argument is that the right to the water terminates when the appropriator has relinquished possession without intent of recapturing, regardless of the water's location.  In that case, Hanson wins because the federal project has no intent to recapture the water (even though the water is still within the boundary of the irrigation district).
  • The court tries to accommodate both of these arguments; RULING: as long as water is on the appropriator's land, it belongs to the appropriator.  Once the water leaves the land, it becomes an issue of whether the original appropriator intended to recapture it.  In this case, the appropriator is the federal government irrigation project.
  • Hanson should not have been granted the water permit in this case because the water had not yet left the appropriator's land.

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N.D.C.C. 61-01-05. Water turned into any natural or artificial watercourse by any party entitled to the use of such water may be reclaimed below and diverted therefrom by such party, subject to existing rights, due allowance for losses being made, as determined by the state engineer.

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When is the right to recapture lost?

Fuss v. Franks, Wyoming, 1980 (p. 235 of Weber's 9th ed.)

  • Waste water from the plaintiff's (Fuss) land flowed in a ditch and under a road. Fuss, without a permit, then used the water to irrigate another tract of land.
  • Franks applied for a permit to divert water from the ditch at a point that lied between Fuss' two tracts.
  • Fuss has the right to recapture the water and use it on the same land.
  • Fuss also has the right to recapture the water to use on other land if Fuss acquires a permit.
  • Since Fuss met neither of those in this case, and the water had left Fuss' first tract and was on its way to a natural stream, Franks could acquire a permit to divert it.

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  • As the authors ask "why are junior appropriators entitled to have stream conditions maintained when a senior appropriator transfers water or tries to recapture water for use on different lands, but not when the senior recaptures it for use on the same land?"
  • Should conditions or expectations for reuse be incorporated into the original permit?
  • Can I change my system (e.g., improve its efficiency) once you have grown accustomed to the seepage resulting from my inefficient system? Does your use of water seeping from my system partially compensate you for the other impacts my project is having on your property?
  • Am I liable for damage that my return flows cause on your property? Are my actions adversely affecting your land?

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As you review the two preceding cases and the North Dakota statute, are you left with the impression that Prior Appropriation doctrine assumes that a water right entitles the permit holder to divert AND CONSUME the water?  Restated, do these materials leave the impression that a permit holder has NO obligation to return any of the water as long as the consumption occurs before the water had been returned to the state's control?

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Can a new use be developed as long as the water it consumes is replaced?

As water resources are fully appropriated, will the law allow a new or additional use as long as the new user provides or supplies the from another source?  Will the law allow me to use your water for my new project as long as I make the investment to secure and provide water to you to replace the water I am taking from your water source?

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This case introduces the legal concept of "augmentation plans"; see http://water.state.co.us/groundwater/GWAdmin/Pages/AugPlans.aspx for a brief introduction to the concept:

"If you are considering using wells to provide water for lawn and garden uses, domestic animals, a subdivision,or another project, you should be aware that in some areas of Colorado you may be unable to get a well permit without an augmentation plan.  An augmentation plan is a court-approved plan, which is designed to protect existing water rights by replacing water used in a new project. Augmentation plans are usually required in areas where there is a shortage of water during part or all of the year."

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Cache La Poudre Water Users Ass'n v. Glacier View Meadows, Colorado, 1976 (p. 78 of Weber's 9th ed.)

  • Developer of residential lots filed two applications for approval of a plan of augmentation.
  • Water users association objected.
  • Developer owns shares of irrigation company entitling it to both "stored" and "direct flow" water.
  • Developer will use water from wells for the new domestic purposes; the developer will then use stored water to replace the well water that is consumed. Developer will allot 26.7% of the water to in-stream flow to replace the 25% of the water that historically was return flow.
  • Water association argues there must be 100% replacement of the well water or the senior appropriators will be harmed.
  • Plan of augmentation is a plan to increase the supply of water, and will be approved if it does not injure vested rights.
  • Where senior users can show no injury, they cannot preclude a beneficial use by another. Water is available if the new use will not cause injury to existing users.
  • Subordinate users are allowed to provide substitute water to meet the needs of downstream priority users. thus allowing the original water to be used by the new subordinate user.

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Priority users cannot expand or change use if that will adversely impact subordinate users (e.g., N.D.A.C. §89-03-02-11), but...

Priority users are not protected from every injury or change that may occur from a new use. N.D.C.C. §61-04-06.3 "Priority ... does not include the right to prevent changes ... if ..."

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How to move water from one use to another -- transfer? dedication? rotation among users?

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Am I entitled to use the water that I save when I increase the efficiency of my current use, or must I allow that saved water to be appropriated to another user?  Can I use salvaged water? Can I use developed water?

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R.J.A. Inc., v. Water Users Association of District No. 6, Colorado, 1984 (p. 91 of Weber's 9th ed.)

  • This is a Colorado case so the parties are before a water court.
  • Application (RJA) was denied its application for a "developed water" permit. Applicant based its claim on having eliminated an evaporative loss of water by removing peat moss from an area of land.
  • Developed water -- new water not previously part of the river system; it is imported or nontributary water.  Developed water is independent of the priority system.  One who increases the flow of a natural stream by adding water that otherwise would not reach the stream is entitled to use this developed water. Developed water does not include any increase in the natural stream resulting from a reduction in consumptive use.
    • How does the concept of developed water relate to a plan of augmentation?
  • Salvaged water -- tributary water made available for a beneficial use through the elimination of waste; salvaged water will be appropriated according to the priority system.
  • The court spends time discussing the case of Shelton Farms where reducing water consuming plants also did not entitle the person to additional water rights. Legislation indicates that water saved through elimination of weeds or rendering the surface impermeable cannot be used as part of a plan of augmentation.
  • The water saved in this case was salvaged water (available due to elimination of waste), not developed water (available because it was brought into the water system from another source). Court agrees to denying the application for a "developed water" permit.

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  • Does this rule discourage water users from trying to eliminate waste? Why should a water user invest in saving water if the saved (salvaged) water will be available for appropriation to other users?  What is the reward or return for saving water by increasing efficiency?
  • Are there broader environmental impacts of eliminating natural conditions that "waste" water?
    • This case, although decided in 1984, arose from actions taken "in the early 1970s."  At that time, environmental concerns were first being addressed at a national level, e.g., the Clean Water Act was enacted in 1972.  Thus environmental concerns were not a critical issue at the time the peat moss and vegetation were removed.  The facts of this case may raise additional concerns if they were to occur at the present time.  Consider the implications if this area was found to be the habitat for an endangered species.
  • Can a water user be mandated to increase efficiency in an effort to save water?

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See Montana's statute on salvaged water; note the alternative approach for managing the use of salvaged water.

"85-2-419. Salvaged water. It is the declared policy of the state in 85-1-101 to encourage the conservation and full use of water. Consistent with this policy, 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."

Imported water may be "new" to this basin, but does the importer need a permit for an appropriation of water to export from the original basin?

Stored water -- is it developed (new water) or is it part of the basin? The authors include a statement that the right to store water is subject to the priority system, but that the right to use stored water is not. 

  • Review note 3 on p. 96 of Weber's 9th ed. Water, once stored, has legal characteristics of developed water.

Not all diverted water is consumed; some of it returns to the source as return flows. Is a change that leads to increased return flows developed water?  HINT -- it more likely is salvaged water as discussed above.

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Also see N.D.C.C. 61-01-27. ... no well that has been drilled for the purpose of the exploration or production of oil or gas may be converted to a water well without first obtaining approval from the industrial commission.

Is there anything such as "new" water or are all water sources interconnected?

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Can I change the point of discharge if it adversely affects a subordinated use?  Can I change the point of discharge of imported water even though it adversely affects a subordinated use?

Thayer v. City of Rawlins, Wyoming, 1979 (p. 239 of Weber's 9th ed.)

  • City of Rawlins imported its water, used it, and discharged it. The defendant then used the water for irrigation. Rawlins will now revise its sewage treatment and discharge its water below the defendant's land. Rawlins does not have to compensate defendants for their loss of the water.
  • The case involves a change in the point of discharge but it also involves imported water. A person who imports water should be allowed to reap the benefits of their efforts; and a priority claim relates to only the natural water in the stream at the time of appropriation.
  • Importer can change the use of the imported water, even though the change injures another water user who is using the return flows of the imported water. Such an injury is permitted because the same affect could result from discontinuing the importation; the law will not force an importer to continue importing beyond what the importer wants to import.
  • Is this case a change in use, change in place of use, or a change in place of discharge?
  • The rules about a change in point of diversion are not applied to a change in point of discharge.
  • A change in use or in place of use requires a petition; the right to reuse (imported water) is unrestricted. Since the right to reuse is unrestricted, the right to change point of discharge is unrestricted.
  • Court ruled that state engineer and board of control had no jurisdiction.
  • DISSENT: Would not distinguish between natural water and imported water. Dissenting justice would have the law require the city to submit project plans for review by the state engineer.

  • It is assumed that imported water cannot be abandoned. Thus the importer has the right to recapture and reuse the imported water even though the water has left the importer's location of the original use.
    • What is imported water?
  • Does it matter whether the imported water has escaped into a surface watercourse or groundwater?
  • Unrecaptured return flows from imported water -- are they available to be appropriated by the state?  Are they available for sale by the importer?
  • Conserving water, and thus increasing the return flow back to its original source, is not new (imported) water; thus once it is released, the (conserving) user has no right to the saved water. But until that water is released, it is subject to the reuse rules described in the principle cases.  This seems consistent with the Montana statute on salvaged water.

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Relating these Questions to Groundwater

  • Water of the state also includes groundwater, e.g. N.D.C.C. §61-01-01(2).
  • Do all prior appropriation states answer this question the same way?

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Can I store water behind a dam?

Yes, but you need a permit.

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Can I store water by recharging an aquifer?

Board of County Commissioners v. Park County Sportsmen's Ranch, L.L.P., Colorado, 2002 (p. 443 of Weber's 9th ed.)

  • Sportsmen's Ranch applied for a permit to recharge an aquifer with the intent to store the water for later removal and use.
  • The county and neighboring landowners argued the recharge would amount to trespass as the water moved into the portion of the aquifer underlying their land; they based their argument on the legal concept that the surface owner also owns the space above and below the surface. The county and landowners want Sportsmen's Ranch to be required to acquire an easement from them for this purpose (of recharging an aquifer). The county and landowners admit that recharge will not interfere with their use of their land.
  • The court rejects the county and landowners' argument. The court relies on an Ohio decision that rejects the notion that a surface owner has absolute ownership of the space below the surface.
  • The court relies on the notions that water is a public resource, the legislature has enacted a statute allowing recharge of aquifers as a means to store water, and absolute ownership of subsurface rights would interfere with the state's goal "optimum use, efficient water management, and priority administration."

 

  • Note the statement in the excerpt from the Ohio decision that comments on a landowner's right to air space.
  • Would the Colorado decision likely be different if the recharge activity interfered with the landowners' current use of surface? Would the decision likely be different if the recharge activity interfered with the landowner's use of a water right (assuming they had a water right)?

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Closing Thought

A water right entitles the holder of the right to use the water, perhaps to consume the water.  This right implies the opportunity to reuse the water as long as the water is being used on the same land and for the same purpose.  Originally, saving water does not entitle the holder of the right to use the water again. but statutes are defining additional exceptions as a possible motivation to adopt water saving practices.  Developing water generally entitles the developer to use the water.

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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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