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Permitting process

As the common law process of notifying others, documenting and defending a water right grew cumbersome, states adopted alternative procedures, such as special water courts and permittting processes. This page provides an overview of these procedures.

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Overview of Colorado Water Courts

Colorado has a unique approach to administering water rights.  It has specific state water courts.  The state is divided into districts based on major waterbasins with a water court in each district.  Some materials describing the Colorado water courts are available at

  • Pages 25-26 of Weber's 9th ed.

 Some points about Colorado water law

  • "[W]ater judge ha[s] exclusive jurisdiction of water matters within the division"  C.S.R. 37-92-203.
  • Colorado distinguishes between surface water and "non-tributary" groundwater/wells.
  • "Any person who desires a determination of a [surface] water right or ... shall file with the water clerk a verified application setting forth facts supporting the ruling sought..." C.S.R. 37-92-302(1)(a) and 37-92-103(12).
  • "nontributary ground water ... shall be allocated ... upon the basis of ownership of the overlying land."  C.S.R. 37-90-102(2) and 37-90-103(10.5).

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Comment about Montana

Since the 1970s, Montana has been converting its water appropriation law to a permitting system; see Montana Const. art. IX, sec. 3.

  • "[T]he legislature [will] provide for the administration, control, and regulation of water rights and establish a system of centralized records of all water rights" MCA 85-2-101(2).
  • "It is the intent of the legislature that the state... comprehensively adjudicate existing water rights and regulate water use within the state"  MCA 85-2-101(6).

This transition became a slow, drawn-out process.  For example, see Water Adjudication Bureau at http://dnrc.mt.gov/wrd/water_rts/adjudication/.

  • See MCA 85-2-212 et seq for statutes addressing the adjudication of water rights existing before the conversion to a state permitting system.
  • See MCA 85-2-301 et seq for statutes describing Montana system for administering water permits.

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North Dakota Process of Applying for a Water Permit

N.D.C.C. §61-04-03   A permit is needed from the state engineer before beginning construction for the purpose of appropriating waters of the state or before taking waters of the state from any constructed works.

A permit is not needed if the water will be used for 1) domestic, 2) livestock or 3) fish, wildlife, and other recreational uses.

However, a permit is needed regardless of use if the project is constructing an impoundment capable of retaining more than 12.5 acre-feet of water or constructing a well from which more than 12.5 acre-feet of water will be drawn annually.

If a permit is not required because the use is for domestic, livestock, or fish, wildlife, and other recreational purposes and is less than 12.5 acre-feet, the user must immediately notify the state engineer of the location and capacity of such works, dams, or dugouts after the project is complete (see http://www.swc.state.nd.us/4dlink9/4dcgi/GetContentPDF/PB-1052/WellRegForm.pdf). The landowner also has the option of applying for a water permit to clearly establish a priority date.

  • A permit is needed to store water (N.D.A.C. §89-03-01-01.3); a permit to store water does not include the right to use the stored water.  A permit to use the stored water can be obtained if the stored water will be put to a beneficial use.

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N.D.A.C. §89-03-01-01 Submission of application for conditional permit

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Quantity of water

Beneficial use is the measure of the water right, but what does that mean?

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State of Washington Department of Ecology v. Grimes, Washington, 1993 (p. 42 of Weber's 9th ed.)

  • Reasonable use is an element of beneficial use.
  • Appellants submitted five claims for water for domestic, irrigation and recreation purposes. They requested flow and storage rights.
  • Referee recommended lesser flow and storage rights; court accepted the recommendations; decision appealed to a higher court.
  • Water right is established and maintained by purposeful application of a quantity of water to a beneficial use upon the land.
  • Beneficial use refers to 1) purpose or type of activities for which the water will be used, and 2) the amount of water. The amount must be reasonable and reflect the duty of the water and waste.
  • Water duty -- the amount of water which with careful management and without waste is enough to meets the needs of the water user.
  • Waste -- no appropriation will be granted for water that will be wasted. "... reasonable and economical use of the water in view of other present and future demands upon the source of supply."
  • Referee considered efficiency -- reasonable efficiency -- such as, local custom, relative efficiency of irrigation systems, costs and benefits of improving the efficiency of the system that is used in applying the water.
  • Property owners/water right holders have a vested interest in the water right to the extent it is beneficially used, and includes the right to diversion, delivery, and application according to usual methods in the vicinity. There is no statutory basis (in Washington) for considering "reasonable efficiency " in determining whether water is being put to a beneficial use.
    • The appellate court concluded, however, that the referee did not apply a "reasonable efficiency" test even though the referee mentioned the test in a footnote; the court, therefore, decided that the referee's determination of beneficial use was appropriate.
  • A water right is similar to other property rights and is entitled to legal protection like other property rights. The decision, however, did not "take" their water right because beneficial use is the limit of the water right. The water that was not granted would not have been applied to a beneficial use if used as the applicant had envisioned. Instead, this quantity of water would have been more than is reasonably needed for the proposed use; therefore, this additional water is not granted.
  • Courts often rely on masters, referees, administrative law judges, or similar persons to assess technical information outside a courtroom setting and then make recommendations to the court.

 

Authors' notes (pp. 36-42 and 46 of Weber's 9th ed.) --

  • How to determine the amount of water needed for a beneficial use? Is the quantity defined or specified in the statute? 
    • N.D.C.C. §61-04-06.2 -- The state engineer may issue a conditional permit for less than the amount of water requested, but in no case may the state engineer issue a permit for more water than can be beneficially used for the purposes stated in the application -- exceptions discussed later.
    • This statute reflects the notion that a water right cannot be granted for more than the quantity that will be put to a beneficial use.
  • How is "beneficial use" applied in determining the amount of water that can be stored?  How much water can be stored? 

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Applicants are expected to apply for only as much water as they can put to a beneficial use; that is the maximum the law allows a person to acquire. 

  • N.D.C.C. §61-04-06.2 The state engineer can issue a (conditional) permit for less than the amount requested, but cannot issue a permit for more than can be put to beneficial use.
  • N.D.C.C. §61-04-03.1 The maximum conditional permits that a person can hold for irrigation purposes is 720 acre-feet.
  • Also see Colorado's definition of beneficial use:  "Beneficial use is the ... amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made..." C.S.R. 37-92-103(4).
  • Also see Montana statutory law:  "The department may issue a permit for less than the amount of water requested, but may not issue a permit for more water than is requested or than can be beneficially used without waste for the purpose stated in the application."  MCA 85-2-312

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Side note to consider ground water

Managing Groundwater Use; pp. 373-384, 387-392 (Weber's 9th)

  • Groundwater accumulates from precipitation, stream flow, return flow to groundwater, artificial recharge.
  • Groundwater is removed by natural discharge, artificial drainage (wells), interconnecting aquifers.
  • Capacity to store groundwater depends on volume of water-bearing materials and the spaces capable of receiving water.
  • Removing and recharging groundwater -- if removal exceeds recharge, the quantity of groundwater that accumulated over the years is being depleted, the water table is dropping and the cost of pumping is increasing. If this practice continues too long, the aquifer will eventually be depleted.

Should groundwater removal (withdrawals or pumping) be limited to the amount of recharge, or would that leave too much water unused?  If removal is allowed to exceed recharge, how much reduction in the water table will be tolerated? 

Once the water table has reached a certain (but lower) level, will withdrawals need to be reduced so the withdrawals will equal recharge (thereby maintaining the water table at this lower artificial level)?  How much "lowering of the water table" will be tolerated and over how long of a period?  Impact of lower water tables include increased pumping cost, need to deepen shallow wells, alter the natural movement of groundwater, may decrease available surface water if the aquifer is interconnected with the surface, and may cause land to settle.

If withdrawals need to be reduced in the future, which users will need to reduce their pumping? How will the pumping rates be controlled?

 

How much groundwater will the state allow to be withdrawn?

Fundingsland v. Colorado Ground Water Commission, Colorado, 1970 (p. 378 of Weber's 9th ed.)

  • Applied for permit to drill a well, denied on basis that area was over-appropriated, hearing was held, permit denied again, appealed to district court for trial de novo, judgment denied permit, appealed to state supreme court.
  • Appeal was based on argument that decision was not supported by evidence and that it was arbitrary and capricious.
  • Judgment affirmed.
  • Commission is empowered to deny application if proposed use will unreasonably impair water rights from the same source, or create unreasonable waste.
  • Trial court applied 3-mile test (3-mile radius around proposed well, 40% depletion over 25 years); factors considered include intermittent pumping, saturated thickness of aquifer, number of wells and their yields, draw down effect, amount of recharge from precipitation, groundwater inflow, excess irrigation, and other sources such as ditches and rivers.
  • Groundwater is subject to prior appropriation but modified to permit full economic development of groundwater; this does not include maintenance of historical levels, nor does it permit unlimited "mining" of the aquifer; will not allow unreasonable harm to senior appropriators.

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  • States are developing, by statute, regulation, common law, or a combination thereof, policies to control the depletion (mining) of groundwater aquifers (storage). This is especially critical for non-rechargeable basins. Using groundwater (especially from non-rechargeable basins) means the water table will drop; thus the policies we establish must tolerate that new withdrawals will lower the water table. But at what rate will we allow a water table to decline?
  • How large of an area should be considered in assessing an application for permit for a new well? The area is usually defined as "a specified distance in all direction from the well site." North Dakota specifies who needs to be notified (see N.D.A.C. 89-03-01-04) but does that also define the area to be considered?
  • Are only the wells within this area considered, or must wells outside this area but that affect the area also be considered?  If we consider only the wells within the area, consider how shifting the proposed well site (so its area does not encompass other wells) may impact the decision?
  • Note that the "rate of withdrawal" not only considers quantity and area, but also time.
  • Do certain areas require more careful management?
  • How do we coordinate our state policies when an aquifer lies under multiple states and the user is adjacent to the state line?
  • What do we do when the groundwater is depleted? Stop using water? Begin importing water?
  • If the aquifer I rely on is a resource and the resource is being depleted, can I take a deduction for the purpose of determining my income taxes?
  • What is the difference between sustained yield and safe yield?
    • Sustained yield - amount of water that can be pumped on an annual basis while maintaining reasonably stable water table.
    • Safe yield - amount of water that can be withdrawn annually without producing an undesired result; that is, without causing harm to the aquifer itself, to the quality of the water, or rendering the well economically infeasible (due to pumping costs).

Groundwater mining - withdrawing at a rate that lowers the water table; should this be prohibited or managed?

But do we understand the aquifer well enough to make these determinations?

  • What is the rate of withdrawal (both natural and artificial) and what is the rate of recharge? In quantifying the rate of artificial withdrawals, do we use the quantity specified in the original permit, or the quantity that is actually (historically) used?

Can we tolerate groundwater mining during dry spells as long as there is an opportunity for the aquifer to recharge (raise its water table) during wet periods?

Applying prior appropriation doctrine to groundwater, are junior appropriators required to discontinue use during times of shortage? How about a proportional decrease in permissible pumping rate among all appropriators? In the latter case, why apply the doctrine one way for surface water (junior appropriators are totally shut down) and another way for groundwater (all or most appropriators have to decrease their pumping rates, perhaps proportionally)?

  • Does the ease at which water flows (or does not flow in the case of groundwater) justify a different "shutdown" strategy during times of shortage?

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Mines often fill with groundwater; mine operators pump the water to the surface and discharge it to keep the mine operating; removing the groundwater often lowers the water table, adversely impacting adjacent surface activities that relied on the groundwater, such as a well for domestic purposes. Is a miner liable for lowering the water table as a result of removing water to keep its business operating? How about the liability of the government for constructing a project that lowers the water table (the McClusky canal in North Dakota)?

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Example from another State

K.S.A. 82a-711. "(a)  If a proposed use neither impairs a use under an existing water right nor prejudicially and unreasonably affects the public interest, the chief engineer shall approve all applications...

(b)   In ascertaining whether a proposed use will prejudicially and unreasonably affect the public interest, the chief engineer shall take into consideration:

      (1)   Established minimum desirable streamflow requirements;

      (2)   the area, safe yield and recharge rate of the appropriate water supply;

      (3)   the priority of existing claims of all persons to use the water of the appropriate water supply;

      (4)   the amount of each claim to use water from the appropriate water supply; and

      (5)   all other matters pertaining to such question.

(c)   With regard to whether a proposed use will impair a use under an existing water right, impairment shall include the unreasonable raising or lowering of the static water level or the unreasonable increase or decrease of the streamflow or the unreasonable deterioration of the water quality at the water user's point of diversion beyond a reasonable economic limit."

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Correcting an Application

N.D.C.C. §61-04-04 Filing and correcting an application

N.D.A.C. §89-03-01-02 correct an application

N.D.A.C. §89-03-01-03 amend an application

The primary purpose of this statute and these regulations is to preserve the priority date based on filing the original application.  Remember:  the date of priority is established according to the date on which the application for a conditional permit is filed (N.D.C.C. 61-04-06.3).

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Notice of an Application

The assumption is that if a proposed use is likely to impact other users, the other users most likely are the neighboring landowners or water permit holders.  Accordingly, nearby landowners and permit holders need to be notified when an application has been received.  The general rule is that all landowners and permit holders within one mile of the point of diversion or within one mile of boundary of the land where the water will be used are to be notified by the applicant.

Comments on an Application

The state engineer will accept and consider written comments before approving or disapproving the application.  An aggrieved person may submit additional comments as well as request a hearing. 

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Criteria for (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").

1. Rights of prior appropriator will not be unduly affected.
2. Proposed means of diversion are adequate.
3. Proposed use of water is beneficial.
4. 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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Public interest is not “use A versus use B” (e.g., see criterion (4)(d) under the North Dakota statute copied above) .  Time is the major consideration when the law needs to decide between "proposed use A" and "proposed or existing use B;"  time of beneficial use is the basis for prior appropriation doctrine. 

Public Interest is more likely to consider “does this proposed use deserve water”.  One of the considerations/criterion in deciding whether “the proposed use deserves water” is “what might be other uses of the water in the future”. At that point in the thought process, the analysis appears to be “use A versus use B,” but the analysis really is comparing “proposed use A” against “possible/hypothetical use B sometime in the future”.  Use B in the public interest test seldom is an existing use or even a proposed use; it usually is a future use based on conjecture.

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When would a proposed use not be "in the public interest?"

See the Kansas statute copied above:  K.S.A. 82a-711(b)   "In ascertaining whether a proposed use will prejudicially and unreasonably affect the public interest, the chief engineer shall take into consideration:

      (1)   Established minimum desirable streamflow requirements;

      (2)   the area, safe yield and recharge rate of the appropriate water supply;

      (3)   the priority of existing claims of all persons to use the water of the appropriate water supply;

      (4)   the amount of each claim to use water from the appropriate water supply; and

      (5)   all other matters pertaining to such question."

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Young & Norton v. Hinderlider, New Mexico, 1910 (p. 136 of Weber's 9th ed.)

  • Hinderlider filed for a permit in October 1907 to appropriate 200 second feet of flow and to construct a storage reservoir for 12,000 acre-feet to irrigate 14,000 acres.
  • Young and Norton applied for a permit in December 1907 to irrigate 5,000 acres from the same stream, including a reservoir to store 10,000 acre-feet of flood waters.
  • Hinderlider's application was rejected because a) it covered considerable public land and Young and Norton's land, b) Hinderlider's project would cost nearly twice as much per acre, and c) there was only enough water to irrigate 5,000 to 6,000 acres.
  • On appeal to the Board of Water, Hinderlider was granted the permit because the engineer can reject an application for water permit based on public interest only if the project would be a menace to public health and safety.
  • District court affirmed the Board.
  • On appeal, the court determined that public interest is broader than just menace to public health and safety; the statutes are to be implemented to secure the greatest possible benefit from the water for the public;
  • It is contrary to public interest to approve a project for which there is not enough water.
  • The relative cost of the two projects is a consideration, but is not conclusive; there was no finding that cost of the Hinderlider's project was prohibitive (would a finding of a "prohibitive cost" justify not granting a permit?).
  • Settlers v. non-resident may have some weight in the consideration but should not outweigh other considerations.
  • Remanded with the matter left open for the introduction of any facts bearing on the question of public interest.

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  • Purpose of public interest review -- address issues that are not resolved due to market failure; the requirement of "public interest" causes administrative agency to consider issues beyond those of concern to appropriators, such as externalities.
    • Externalities -- an economic concept that "many activities have an impact on 'neigbors' who have 'no say' in the decision"
    • The challenge then is to devise a decision making process that considers externalities as well as the concerns of appropriators
  • Benefit/cost (B/C) analysis -- analytical procedure that attempts to identify and quantify all positive and negative impacts of a project or a decision, and then decide to proceed with the project only if the total benefits exceed total costs
    • B/C analysis also allows competing projects to be assessed against one another by comparing the B/C ratios for the projects; the project with the largest B/C ratio would be considered the most desirable
    • how does one analyze future projects, especially projects that have not yet been conceived?
  • Opportunity costs -- the benefits forgone when an alternative is pursued; restated, every action has an implicit cost; that is, "what alternative projects cannot be pursued if we decide to pursue 'this' project?"
    • B/C analysis and opportunity cost both assume "there is not enough (water or other resources) to do everything."
  • Rather than trying to envision future projects in making a decision about a water application today, how about "be willing to shift water from one use to another when a 'better' use arises in the future?" Would such a strategy cause a problem? 
    • One argument for not using a strategy of shifting the water use is that the first water right would be subject to being discontinued.  This uncertainly would discourage anyone from investing in a long term water project. Thus the law presumes that a water right will not be discontinued; but that leaves us with the problem of how to compare today's proposed projects to future projects that have not yet been envisioned?
    • It also is helpful at this point in the thought process to recall that a water right has some legal characteristics of a property right; that is, government can take my property rights (my water rights?) only as permitted in the Constitution.  Two common ways for government to take private property are 1) compensate for the taken property, or 2) properly exercise police power. 
      • Is the reasoning of the U.S. Supreme Court in KELO V. NEW LONDON (04-108) 545 U.S. 469 (2005) relevant to government shifting water rights among users?
  • Subordination -- the court upheld the agency decision to grant/enforce a water right that was explicitly subordinated (at the time the right was created) to alternative future uses.
  • Beneficial use v. public interest --
    • N.D.C.C. §61-04-06(4) appropriation must be in the public interest.
    • What is the relationship between the definition of beneficial use (N.D.C.C. 61-04-01.1(2)) and the public interest test (N.D.C.C. §61-04-06)?
      • Beneficial use means a use of water for a purpose consistent with the best interest of the people of the state.
      • 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.
      • The list does not include availability of "unappropriated water" as a criterion
      • The list includes impacts on fish/game and recreation as considerations, even though these uses are not allowed to acquire a water right (unless they involve a "works").  Is the public interest criterion a means for North Dakota to consider in-stream flows when deciding whether to grant a permit to divert water?  Remember, North Dakota (unlike several other states) does not grant water permits for in-stream flow.

 

What is the definition of public interest?

Shokal v. Dunn, Idaho, 1985 (p. 141 of Weber's 9th ed.)

  • Trout Co. was issued a permit for fish propogation and hydropower generation.
  • Court remanded the decision because there was inadequate consideration of 1) financial ability of applicant to complete the project, and 2) the local public interest with respect to the project.
  • Permit was again granted after changes to the project.
  • Court reversed and remanded for a second time.
  • Appealed to the state supreme court which upheld the remand.
  • Financing issue was adequately addressed by the department.
  • Local public interest: affairs of the people in the area directly affected by the proposed use; which means including any locally important factor impacted by the proposed project.
  • Statute: Streams be protected against loss of water supply to preserve the minimum stream flows required for protection of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, transportation and navigation values, and water quality.
  • Alaska's statute -- benefit to applicant, economic effect, loss of alternative uses, harm to others, effect on navigation or public waters, and intent and ability of applicant to complete the project.
  • Also: minimum flow, discourage waste, and encourage conservation
  • But public interest should be read broadly to secure the greatest possible benefit from the waters.
  • Relevant elements and weights will vary among local needs, circumstances and interests.
  • Design plans should be sufficient to apprise the public of the efficacy of the proposed use and its potential impact.
  • The court stated that the statement "appropriator's rights prevail over riparian rights" fails to account for the state's policy of providing for minimum stream flow (public interest and public trust doctrines) -- court appears to be declaring minimum stream flow to be a riparian right; the court does not distinguish between an appropriator's right to divert and the right of a riparian land owner to divert; nor does the court distinguish between a riparian land owner's right to divert and a minimum stream flow.
  • Water permit v. water quality issues: Dept. of Water Resources should condition issuance of permit on a showing by the applicant that a proposed facility will meet the mandatory water quality standards. There is authority to withhold a permit until there is a design proposal that appears to comply with water quality standards. Health department has right to be heard in proceedings before the Water Resources.

 

  • Nevada -- state engineer specified guidelines for assessing public interest.
  • States include game/fish and recreation as part of public interest criteria.
  • Are impacts on the environment and endangered species considerations in determining public interest?
  • Impose conditions in permit is a way to address public interest considerations; see N.D.C.C. §61-04-06.2
  • Impose conditions in permit as an alternative to an in-stream flow appropriation; is this adequate protection for an in-stream flow?
  • How are competing public interest considerations weighed against one another?
  • Does the public interest criterion cause/allow decisions about the use of water to address other issues, such as land-use issues (e.g., the next case)?

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Does public interest imply a fiduciary responsibility on the state? How is that responsibility fulfilled?

United Plainsmen Association v. North Dakota State Water Conservation Commission, North Dakota, 1976 (p. 153 of Weber's 9th ed.)

  • United Plainsmen sought to enjoin State Water commission from issuing permit for energy development until there is a comprehensive short- and long-term plan for conservation and development of the state's natural resources.
  • Does statute mandate a planning responsibility? Court says "no mandate".
  • But the statute is a significant policy statement -- there still is a common law public trust doctrine, and the state cannot abdicate its trust (fiduciary responsibility) over property which the whole people are interested in; the property cannot be left entirely under the use and control of private parties.
  • The public trust doctrine is broader than just conveyances of land. Statute defines public waters and this requires at a minimum, a determination of the future water needs of the state, and this determination involves planning. There needs to be evidence of some planning.
  • Remanded.

North Dakota "planning" statutes

  • N.D.C.C. §61-02-01.1 and §61-02-28 "state water commission shall develop and implement a comprehensive statewide water development program"
  • The commission may make plans, investigations, and surveys concerning the use of any and all waters, either within or without this state, for purposes of establishing, maintaining, operating, controlling, and regulating systems of irrigation, municipal, domestic, industrial, recreational, and fish and wildlife works and projects in connection therewith within the state."
  • Also N.D.C.C. §§ 61-01-26, -26.1, and -26.2:  state water resource policy and water development goals.

  • Water plans in other states -- Kansas (Kansas statute 82a-901et seq), California (Water Code sec. 10000 et seq)
  • Must the plan be adhered to?
  • Are preference statutes (e.g., N.D.C.C. §61-04-06.1) a type of "legislative planning" of water use?
  • Are agency conditions in permits a type of planning?
  • Ecosystem management (holistic resource management)
    • addresses all resources, not just water;
    • addresses only environment concerns -- not other concerns (such as economic);
    • can ecosystem management address issues for the entire basin, and not be limited to political boundaries?
  • Department of Interior -- Water 2025: Preventing Crises and Conflict in the West.
  • " Six principles to guide us as we address systemic water problems.
    " Five realities that drive water crises.
    " Four key tools to help us proactively manage our scarce water.

    The Six Principles

    1.  Solutions to complex water supply issues must recognize and respect state and federal water rights, contracts, and interstate compacts or decrees of the United States Supreme Court that allocate the right to use water.

    2. Existing water supply infrastructure must be maintained and modernized so that it will continue to provide water and power.

    3. Enhanced water conservation, use efficiency, and resource monitoring will allow existing water supplies to
    be used more effectively.

    4. Collaborative approaches and market based transfers will minimize conflicts between demands for water for people, for cities, for farms, and for the environment.

    5. Research to improve water treatment technology, such as desalination, can help increase water supplies in critical areas.

    6.Existing water supply infrastructure can provide additional benefits for existing and emerging needs for water by eliminating institutional barriers to storage and delivery of water to other uses while protecting existing uses and stakeholders.

    The Five Realities
    Five interrelated realities of water management are creating crises in important areas in the West. These realities are:
    •Explosive population growth
    •Water shortages exist
    •Water shortages result in conflict
    •Aging water facilities limit options
    •Crisis management is not effective

    Four Key Tools to Prevent Water Crises
    Water conflicts can have serious social, economic, and environmental impacts. Through Water 2025, the Department of the Interior identifies four key tools to help prevent future conflict and crises over water in the West.

    1. Conservation, Efficiency, and Markets

    2. Collaboration

    3. Improved Technology

    4. Remove Institutional Barriers and Increase Interagency Coordination

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Will the proposed use unduly affect prior appropriators?  Is there water available?

How much water is available? How is "unappropriated" defined?

Lower Colorado River Authority v. Texas Department of Water Resources, Texas, 1984 (p. 128 of Weber's 9th ed.)

  • Unappropriated water means the amount of water remaining after taking into account all existing uncanceled permits and filings valued at their recorded level.
  • Commission will grant a permit only if there is unappropriated water and the appropriation would not impair existing rights or be detrimental to public welfare.
  • Based on computer model, the staff study concluded very little water would be available for appropriation; and that the proposed project would adversely impact two downstream lakes.
  • Applicant (water district) argued there were uncanceled permits that were not using their water and therefore there was unused (unappropriated) waters.
  • The court concluded -- uncanceled permits (unused permits) must still be treated as appropriated water in the amount of the water permit. Unused water is not available for reappropriation until the original permit is canceled.
  • Note the concurring opinion and motion for rehearing -- remand the matter, do not reverse the lower court; by remanding this matter, the court preserved the water district's original application and thus preserved that date of priority.

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  • Nebraska relied on historical uses (assuming that historical use aligns with beneficial use which is the maximum amount for water), rather than amount stated in permit.
  • The purpose of the rule to 'grant permits only if there is unappropriated water' is to eliminate permits that will have only a limited likelihood of receiving water.
  • Is unappropriated water defined in the year of drought, average moisture, or high moisture? "Fairly continuous and dependable."
  • What about prior water rights that have not yet been quantified, such as tribal and federal reserve rights (which we have not yet discussed)? How are they accounted for in determining whether there is any unappropriated water?
  • Do not overlook two basic principles -- 1) use water for a purpose consistent with the best interests of the people of the state (N.D.C.C. 61-04-01.1 in defining beneficial use), and 2) subordinate users receive their water right aware of and subject to the rights of prior appropriators.
  • North Dakota has a statute that allows unappropriated water to be reserved, see N.D.C.C. 61-04-31.

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Other Considerations for a Conditional Permit

N.D.A.C. §89-03-01-01.2  intent and ability to acquire interest in land at point of diversion and conveyance, and capacity to put the water to a beneficial use.

  • "An applicant for a conditional water permit must have an interest or intent and ability to acquire an interest in the land on which the point of diversion and conveyance system will be located or must demonstrate to the satisfaction of the state engineer that the applicant has the capability to put the water to beneficial use."
    • This requirement is intended to prevent speculation in water rights.
  • Exception for irrigators; see N.D.C.C. §61-04-02:  "an applicant for a water permit to irrigate need not be the owner of the land to be irrigated."  Although not stated in the statute, the applicant most likely still needs the ability to access the land to be irrigated, such as a lease with the landowner that addresses the plan to irrigate the land.
  • Exception of municipalities and rural water system (N.D.A.C. 89-03-03-01(5)):  municipalities and rural water systems can apply for permits beyond their immediate need.  The purpose of the exception is to provide these entities as means for securing water to meet future needs.  North Dakota allows these entities to anticipate -- as reasonably necessary -- 30 years into the future.

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N.D.A.C. §89-03-01-08 A permit cannot extend to more than one water source; if an applicant is seeking water from multiple water sources, the applicant must apply for a permit for each source.  Requiring a distinct permit for each water source will prevent a permit holder from arguing that the water from source B should be increased to offset a shortfall from source A.  By having distinct permits for each water source, the permit from source A can be curtailed without any impact on the management of permits drawing from source B.

This regulation allows a permit to encompass multiple points of diversion from the same source if there is good cause to do so.

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N.D.A.C. §89-03-01-07 necessity of works (already discussed)

  • Prevents North Dakota from granting water permit for in-stream use

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Power of eminent domain to acquire rights to convey water across someone else's land;

  • N.D.C.C. 61-01-04. "The United States, or any person, corporation, limited liability company, or association may exercise the right of eminent domain to acquire for a public use any property or rights existing when found necessary for the application of water to beneficial uses ... "

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  • Hallauer v. Sprectrum Properties, Inc. Washington, 2001 (p.117 of Weber's 9th ed.)

    • Hallauers held the water right to water from a spring on neighboring land and sought to condemn a way across the land to transport the water to their property for domestic and other uses.
    • Court of Appeals held that the Hallauers' land is not landlocked and alternative sources of water are available; therefore, there was no reasonable necessity for condemnation.
    • Supreme Court reversed.
    • There is state statutory authority for the condemnation.
    • Condemnation (eminent domain) generally requires that the property being taken be put to a public use. However for right of ways for water, public use includes putting water to a beneficial use: "The benefit to the public ... is not public service, but is the development of the resources of the state, and the increase of its wealth..."
    • "condemnation of any property or rights necessary to apply water to beneficial use is a condemnation for a public use."
    • "Necessity" is not based on the landlocked nature of the condemnor's property, but on the necessity for the application of water to a beneficial use.

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  • With respect to an individual's right to use eminent domain to acquire an easement for the conveyance of water, see ND Const. Art. I, Sec. 16 (second paragraph), which is North Dakota's response to the Kelo decision. Does this 2006 amendment to the state constitution now invalidate the state statute?
    • "For purposes of this section, 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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Preference among competing applications

In granting a conditional permit, the state engineer needs to consider whether there are any competing permits, which permit has preference according to statutory law, and whether the less preferred use meets the criteria if the preferred use is granted a permit.

  • N.D.C.C. §61-04-06.1 The legislature has prioritized water uses but one of the statute's primary impact is only if there are competing applications.
    • Domestic
    • Municipal
    • Livestock
    • Irrigation
    • Industrial
    • Fish, wildlife and other outdoor recreational uses
  • N.D.A.C. §89-03-01-11 Applications are competing only if received within 90 days of one another and are applying to draw from the same water source.

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The state engineer is authorized to impose conditions on the water permit (N.D.C.C. §61-04-06.2

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And again, there is a limit on the amount of conditional permits that can be held at one time for irrigation purposes; see N.D.C.C. §61-04-03.1

How quickly must the state take action on a permit application?

Priority dates from the time of filing the application; can a state agency protect an undeveloped water right by "sitting on an application" and thus not triggering the requirement that the applicant must initiate development with reasonable diligence? Or is the agency required to respond to an applicant within a specified period?

  • Montana -- M.C.A. §85-2-310. Action on application... (5) The department shall deny or grant[,] with or without conditions[,] a permit ... or a change in appropriation right ... within 90 days after the administrative record is closed.

Remedy for applicant 

N.D.C.C. §61-04-07 A water permit applicant can appeal to the district court if the application is not approved. 

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Perfected permit

Under the common law, a water right arises when the water is put to the beneficial use.  However under the permitting system, the water right arises when the state engineer issues a perfected water permit.  North Dakota statutory law requires that the "works" be inspected to assure they are adequately constructed before the "works" can be operated and a perfected permit is issued.

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Due Diligence

The holder of a conditional permit does not have unlimited time to complete the project and to put the water to the beneficial use.  The time to complete the project is generally indicated in the conditional permit.  The permitree is expected to pursue the project with due diligence.  If this is not achieved, the conditional permit will expire and thus allow the unused water to be available to another applicant.  The holder of the conditional permit, however, can request additional time to complete the project.

  • See Due Diligence; pp. 65-74 of Weber's 9th ed.

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City and County of Denver v. Northern Colorado Water Conservancy District, Colorado, 1954 (p. 65 of Weber's 9th ed.)

  • The city of Denver was intending to divert water from the western side of the continental divide for use by the city on the eastern side.
    • 1914 -- examined the western slope
    • 1921 -- employed a firm to survey the area of Fraser and Williams Fork
    • 1922 -- preliminary survey and filed map and statement with state engineer -- Blue River
    • 1926 -- another survey showing (second) lower tunnel -- Blue River
    • 1927 -- another filing showing a third site for the tunnel
    • 1941 -- additional engineering work showed a dam and reservoir, and relocated tunnel
    • 1946 -- work began on this last tunnel
  • Denver claimed priority based on 1921 and 1927
  • Conservancy District claimed priority date of 1937 and opposed Denver's claims
  • District court granted Denver a water right based on smaller tunnel with a priority date of 1946
  • Denver appealed.
  • Supreme court upheld district court.
  • An appropriation is not complete until actual diversion and use is completed, but the right relates back to time the first open step was taken giving notice of intent to secure the water right.
  • The right to relate back is conditional in that construction of the project be pursued with "reasonable diligence," and the applicant have a fixed and definite purpose to take the project and carry it through.
  • Surveys, preparation of maps, acquiring rights of way and option, obtaining a contract to carry water through the tunnel, drilling test holes, clearing timber, are sufficient to satisfy requirement of reasonable diligence.
  • But Denver spread its activities over 20 years, whereas in the case being relied on for precedence, the applicant made the efforts in a 5-year time span.
  • Diligence -- steady application, constant effort, doing an act or series of acts with all possible expedition, with no delay except such as may be incident to the work itself.
  • Court argued that Denver did not even arrange financing for the project during the 20 years; therefore priority was granted on the basis of the later date.
  • Dissent:  Some changes in the plan can be tolerated without the loss of priority.   When is construction on one part of a large project enough to protect the entire project? The dissent would answer this question as: when the part relates to a single integrated purpose so that progress on one part has a direct bearing on another part.  Interruption in the effort due to depression and war -- uncontrollable events -- justify the slow progress in construction and financing.

How much time does an appropriator (the holder of a conditional permit) have to put the water to a beneficial use?

  • The amount of time can be "as long as it takes provided the appropriator is using reasonable diligence to complete the project throughout this period;" e.g., Colorado.
  • Principle of "reasonable diligence" is to prevent someone from acquiring a right in the water without intent of putting it to a beneficial use.  Recall that intent to use the water is one of the basic requirements of acquiring a water right.

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Are there circumstances in which an interruption in reasonable diligence will be tolerated? Financial? Legal? Physical? Health?

  • In North Dakota, there can be extensions of time for "good cause." N.D.C.C. §61-04-14.
    • N.D.C.C. §61-04-14 extending time to put water to a beneficial use for "good cause".  State engineer is to notify the holder of the conditional permit when it is about to expire; if the holder of the conditional permit does not respond to notice from the state engineer, the conditional permit is considered abandoned and forfeited (without proceeding through the forfeiture statutes).
  • N.D.A.C. §89-03-01-12 . "Where the time has expired to put all or any portion of the water of a conditional water permit to the beneficial use named in the permit, the state engineer will notify the permittee of this fact. The state engineer will provide the permittee with a form upon which the permittee may request an extension for applying the water to the beneficial use and to explain why an extension should be granted."
    • An extension will be granted in "overriding circumstances" if the water source is "limited" relative to pending permits; if the water source is not limited, it appears that the engineer has considerable discretion in granting an extension.
  • North Dakota allows municipalities and rural water systems to anticipate 30 years into the future (N.D.A.C. 89-03-03-01(5)).
    • Exception for municipalities (N.D.C.C. §61-04-06.2)  conditional permit may contain water in excess of present needs if the request is based on reasonable projections of future water needs.  N.D.A.C. 89-03-03-04:  "reasonably necessary" means an estimated based on the next 30 years.  Accordingly, a municipality can holder a conditional permit and not puruse its development as long as the quantity is expected to be needed in the next 30 years.
  • The requirement of reasonable/due diligence has been codified in some states.
  • Can a conditional permit be cancelled (for lack of reasonable diligence) without the due process of notice and right to be heard?
    • Montana -- M.C.A. §85-2-313. Provisional permit.
    • Montana -- M.C.A. §85-2-314. Revocation or modification of permit.
    • North Dakota requires the state engineer to provide notice (see above).

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Record a permit

N.D.C.C. §61-04-26 "A water permit may be recorded as any other instrument affecting the title to real property"

"...any order declaring any water right ... forfeited, canceled, or abandoned shall be filed by the state engineer in the office of the recorder in the county ... where the affected land is located..."

The North Dakota State Water Commission also provdies information about existing water permits, see Water Permits Database

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Temporary Permit

N.D.C.C. 61-04-02.1. The state engineer may authorize emergency or temporary use of water for periods not to exceed twelve months if the state engineer determines such use will not be to the detriment of existing rights.

N.D.A.C. 89-03-01-10. ... [In the application for a temporary permit.] the applicant must indicate the reason for the permit, quantity of water needed, proposed point of diversion, type of use, place of use, rate of withdrawal, source of water, dates of proposed use, and applicant’s address. The state engineer will evaluate the request and, if it is granted, the state engineer will list on the temporary authorization conditions that govern the appropriation. An applicant for emergency use of water, if the situation warrants, may telephone the office of the state engineer requesting immediate use of water. Following an oral request and oral approval by the state engineer for authorization, the above procedures must be completed. The applicant for temporary or emergency appropriations is responsible for all damages that may be caused to other appropriators and any other individual as a result of an emergency or temporary use of 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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