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Priority of water rights

This page overviews legal principles to determine priority among competing water rights.

 

The basic rule in prior appropriation doctrine is that priority of a legal right to use water is based on which water right arose first (among competing uses).  Application and exceptions to this simple rule are addressed on this page.

  • N.D.C.C. §61-04-06.3 priority in time determines superior water right:  priority dates from when application is filed, or if no application is needed, from the time the water was first appropriated.
  • Water rights that existed prior to "water right" statute -- see N.D.C.C. 61-01-03. "In all cases of claims to the use of water initiated prior to March 1, 1905, the right shall relate back to the initiation of the claim..."
  • Also see N.D.C.C. 61-04-22.  Allows water users to retain their water right if they acquired the right by prescription prior to the early 1960s.  Otherwise, water rights cannot be acquired by presecription in North Dakota.
  • We still need to discuss water rights arising from the federal government prior to statehood.

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N.D.A.C. §89-03-01-01.1 priority dates from the time of a completed application for a conditional permit (subject to the issuance of a perfected permit); if the water use does not require a permit, priority dates to the time the water was first used.

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Preference among competing applications

  • 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.  If the applications are not competing, time will determine priority.
  • N.D.C.C. §61-04-06.1 prior of use among competing applications.
    • Domestic
    • Municipal
    • Livestock
    • Irrigation
    • Industrial
    • Fish, wildlife and other outdoor recreational uses

This statute often has a narrow or limited impact in the case of applications for conditional permits.

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Absolute priority for domestic use

Some states grant domestic use of water a priority over all other uses (e.g., California Water Code sec. 106 and South Dakota (S.D.C.L. 46-1-5)).  North Dakota does not appear to grant that preference.

Protecting the Method of Diversion

Withdrawing water from a water source, whether surface water, groundwater or an area of interconnected groundwater and surface water, can impact the withdrawal by others.  For example, one user diverts (pumps) so much water from a lake that the lower lake level leaves the pump intakes for other users above the water.  Can a subordinate water user lower the level of the lake, river or acquifer?  Can a superior water right force a subordinate user to discontinue removing water so the holder of superior water right can "reach" the water source?

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Can I block a subordinate use if it detracts from my method of diversion?

State ex. rel. Crowley v. District Court, Montana, 1939 (p. 108 of Weber's 9th ed.)

  • Plaintiff alleged that the defendant's dam reduced flow in the river to a level that the plaintiff could not divert water into the plaintiff's ditches even though the plaintiff's diversion dam was suitable and efficient, and was a reasonably adequate means of diversion, reasonably constructed and maintained. These causes were dismissed and the case was appealed.
  • Subsequent appropriators take their water rights knowing the conditions of prior appropriators; both in terms of quantity of the prior appropriation and the means of diversion being used by the prior appropriators.
  • Subsequent appropriators must assure there is water available to prior appropriators so they receive their quantity of water for use and a quantity to assure the operation of a reasonably efficient means of diversion. The prior appropriator's right is to have enough water to divert and use. But, there is no expectation that the means of diversion be absolutely efficient.
  • The waste of water resources must be minimized, but there is no expectation that a more efficient and more expensive system of diversion be constructed to replace a reasonably efficient diversion system, especially if the added cost of the more efficient system outweighs the benefit of the saved water.
  • A method of diversion that is unreasonable or inefficient cannot be used to interfere with reasonable use of water by others.
  • There is no right to appropriate the current (flow) of a river so to render it impossible for others to beneficially use otherwise unappropriated water.
  • The causes were reinstated.

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This concern over impact that a new use may have on existing systems applies to both surface water and groundwater.

  • N.D.C.C. §61-04-06.3 Priority of appropriation does not include the right to prevent changes in the condition of water occurrence such as the increase or decrease of streamflow, or the lowering of a water table artesian pressure or water level if the prior appropriator can reasonably acquire the prior appropriator's water under the changed conditions.

The law does not require an absolutely efficient method of diversion; but it does require a reasonably efficient method of diversion.  Subsequent uses must leave enough water to meet the prior appropriators needs, assuming the prior appropriator has a reasonably efficient method of diversion.

  • Is reasonable efficiency changing with time, technology, etc?
  • Can law mandate that a holder of a water right invest in technology to improve the efficiency of the water use?  Why?  When does a regulation become a taking?  To what extent is a water right protected like any other property right?
  • If adopting technology to improve the efficiency of water use cannot be mandated, are there incentive programs to encourage it?

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Should a "market approach" be used to balance the benefits to subsequent appropriators against the cost to prior appropriators?  Is the cost of completing such a transaction too great (transaction cost)? Would this strategy ever impose an undesirable result on those who are not part of the transaction (externalities)? Would this strategy leave those with limited resources unable to acquire the critical resource of water?

  • The authors' notes pose the question of whether the "market" should be used to allocate water, rather than an administrative approach.

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Additional thoughts about Protecting means of Diverting Groundwater; pp. 408-417 (Weber's 9th)

Pumping groundwater creates cones of depression and lowers the water table, thereby requiring adjacent users to incur the costs of deepening their wells and lifting the water greater distances. Who should pay these additional costs? The user who lowers the water table? The user who has a shallow well? Should all the users pay the cost proportionally? Should each user bear his or her own cost?

Current Creek Irrigation Co. v. Andrews, Utah, 1959 (p. 410 of Weber's 9th ed.)

  • Issue is whether prior appropriators have a vested right to continue receiving water by artesian pressure and whether subsequent appropriators must restore the pressure or bear the expense of replacing the water.
  • Order of priority: Andrews and Fowkes spring, Andrews and Fowkes flowing wells, Andrews pump well, and Current Creek Company wells.
  • Andrews and Current Creek must replace Fowkes' water.
  • Prior appropriators are entitled to have subsequent appropriators restrained from drawing water and lowering pressure unless the subsequent appropriators bear the cost of replacing the quantity and quality of water.
  • DISSENT: rule of absolute right to preserve pressure and means of diversion does not serve the fundamental purpose of providing the fullest conservation and development of water by making it available to all users in the most convenient and economical way.
  • It is impractical to insure prior appropriators the amount of water, and the same pressure as their original appropriation.
  • Prior appropriators should have the right to use the water and to such means of diversion as is reasonably efficient and does not cause undue waste (underuse?) of water.

Court applied prior appropriation doctrine in the strictest sense. Is that a reasonable approach? See the dissenting opinion.

Protecting reasonable means of diversion -- each diverter must establish some reasonable means of diverting; this does not give a user the right to have an inefficient means of diversion; has the appropriator created a means of diversion that is reasonably adequate for the use?

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Retreat from policy of the principle case -- the rights of each individual should be subordinate to and correlated with reasonable conditions and limitations established by the law for the general good.

  • Repeated N.D.C.C. §61-04-06.3 Priority of appropriation does not include the right to prevent changes in the condition of water occurrence such as the increase or decrease of streamflow, or the lowering of a water table artesian pressure or water level if the prior appropriator can reasonably acquire the prior appropriator's water under the changed conditions.

Domestic wells -- are they treated differently than wells used for other purposes?

Paying the cost of improvements -- how about a policy that depends on facts of the case and would not necessarily always be one way or the other?

Reasonable means of diversion -- priority does not protect the appropriator from a reasonable lowering of the water table; full economic development should not be blocked by burdening junior appropriators with the increased cost to existing appropriators; the need is to weigh potentially competing concerns about economic efficiency, wealth distribution, and other social goals; the real strength of the code lies in its procedures which enable officials to achieve the goals of maximum use consistent with the public interest for the maximum benefit of all its people.

Putting our water resources to full use --

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Ground water use impacting on other water sources

Groundwater is often naturally interconnected with surface water, but only recently and in only a few states has an effort been made to coordinate the administration of an integrated surface water-groundwater system.

Often surface water was used first; then the groundwater was used (this pattern of water resource development most likely reflects the availability of pumping technology and economics). As groundwater usage reduces surface water flows, the senior users are deprived of water by junior appropriators. Does this mean the pumping should stop?  How about requiring senior appropriators also to use wells? Who would have to pay the cost of developing and operating the wells for senior appropriators?

  • Arizona uses reasonable use doctrine to allocate groundwater and prior appropriation to allocate surface streams and their subflow (that is, some groundwater). The definition of subflow will determine whether certain groundwater is allocated according to reasonable use or prior appropriation.
  • Restatement of Torts defines groundwater and surface water as a single source when "withdrawal of groundwater has a direct and substantial effect on" the surface water.
  • Remember, Colorado uses one system to allocate surface water and contributing groundwater and another system to allocate non-contributing groundwater. 

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Enforcing Priority

Who has the responsibility of enforcing water rights?  For example, what is a water user expected to do if there is not enough water to fulfill the user's right and the user believes water uses with subordinated rights are improperly using the water? 

  • "Call the river", for example see Western States Water Law :  "A senior appropriator may "place a call" on the river. A call requires that the institution which manages the water source shut down a junior diverter in order to satisfy the senior right. "

  • N.D.C.C. §61-04-29  The state engineer has full power and authority to institute, maintain, and prosecute to determination in an administrative proceeding or any of the courts of this state, or in any of the federal courts, any and all actions, suits, and special proceedings that may be necessary to enjoin unauthorized use of water, to enforce an order of the state engineer or the state water commission, or to otherwise administer the provisions of this chapter.

  • A general adjudication such as South Dakota, see S.D.C.L. chap. 46-10.
  • Also see N.D.C.C. §§61-03-16 to -19 -- Suit for adjudication of water rights

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Who determines who holds which water rights? Can an administrative agency address issues that had in the past been resolved through litigation?

Farm Investment Co. v. Carpenter, Wyoming, 1900 (p. 161 of Weber's 9th ed.)

  • Plaintiff contends that the 1890 legislation establishing a state board and a procedure for determining water rights is unconstitutional. The argument is that resolving the water rights can only occur in court.
  • The court explains that the state constitution provides for a "board of control," the first legislature created such a board, and repealed the legislation authorizing water issues to be adjudicated in the courts.
  • The procedure the board must follow includes
    • notice to affected persons,
    • the engineer measures and maps the water sources and water uses,
    • take testimony,
    • receive description of project and open it to the public,
    • interested parties can submit information,
    • the board conducts a hearing, and
    • the board's decision can be appealed to the court.
  • The board's action leads to a settlement or adjustment of priorities and the issuance of a certificate indicating relative priority among appropriators. It does not result in a judgment granting damages or the issuance of a writ to prevent the unlawful invasion of a person's rights or privileges, that is for the courts to determine.
  • As between a court and administrative board, a board with experience and peculiar knowledge can solve the questions at less expense and with a larger degree of satisfaction, but still give due regard to private and public interests, conduct investigations, and ascertain individual rights.
  • The board is making an administrative determination; not a judicial determination. The administrative proceeding secures evidence of title; its does not redress an injury.

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Prior to establishing water control boards or similar agencies, states relied on litigation (adjudications) to determine the water rights held by appropriators. However, a decision applied only to litigants, not to the entire water system. Yet the actions of anyone in the water system impacts others throughout the system. A challenge is how to resolve these intertwined issues.

  • States began to authorize "general adjudication" (all claimants within a water district are joined) to reduce piecemeal, expensive; adjudications are time consuming and expensive. Also, courts often did not have the necessary expertise or understanding of water resources.
  • States then began to establish agencies (with the appropriate expertise) to address water issues.
  • Can an agency make a general adjudication or does it need to be made by the courts? The agency has the information and expertise, but the court has the legal authority. See Texas where an agency's general adjudication is subject to a mandatory judicial review.
  • Legislatures must proceed with caution to resolve water disputes or to clarify existing water rights because any statute intended to resolve the questions may be challenged as violating constitutional provisions that protect property rights (including vested water rights).
  • Another challenge is to coordinate general adjudications among adjacent jurisdictions.
  • How are new rights added to an adjudicated system? Adhere to the permit process.
  • Another challenge is gathering the data necessary for an adjudication -- especially data about actual use. See N.D.C.C. §61-04-27 and N.D.A.C. §89-03-01-13.

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What is the authority of an administrative agency?

Rettkowski v. Department of Ecology, Washington, 1993 (p. 170 of Weber's 9th ed.)

  • Department of Ecology decided that the water rights of ranchers were superior to those possessed by the irrigation farmers, so the department ordered the farmers to discontinue groundwater withdrawals.
  • The question is whether the department has the authority to issue such an order.
  • An agency may only do that which it is authorized to do by the legislature. An agency cannot modify or amend a statute through its own regulations.
  • The department argues that its authority is derived from its enabling statutes; that it is protecting senior water rights from encroachment by junior apppropriators. The department also argues that it "tentatively determined" the relative status of the water rights, and that the final determination would be made by the Pollution Control Hearing Board, which generally hears appeals from the department's decisions.
  • Court explains that the department's authority applies to the application process. Once a permit is granted, it is a vested property interest, and the legislature has entrusted the courts with responsibility of resolving conflicts among water users.
  • The court also explains that neither the department nor the board has the authority to adjudicate priorities between water users; that is, these entities are forbidden from conducting hearings relating to general adjudication of water rights. The department's role is to initiate the general adjudication process in the courts.
  • Department should have initiated a general adjudication in the courts, rather than issue the order.

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Who enforces a water right, the agency or the private user?

    • N.D.C.C. §61-02-44 -- Controlling natural flow of stream deemed police power - Court appointed water commissioners not to deprive state water commission of its authority.
    • N.D.C.C. §61-02-44 (cont'd) "the owner of any prior or vested right contending that the commission is not recognizing and respecting such right may resort to a court of law or equity for the purpose of determining whether or not the rights of said claimant have been invaded, and the commission shall observe the terms of any final decree."

    • N.D.C.C. §61-02-14 Powers and duties of the (state water) commission
    • N.D.C.C. §61-02-23(1)(b) and (2) Power to pursue suits to adjudicate water rights.
  • State Engineer N.D.C.C. §61-03-01 State engineer - Appointment
  • Also see N.D.A.C. chap. 89-01-01 Organization of Water Commission
    • State enigneer "assists the commission by coordinating the operations of the commission and relieving the individual commissioners of administrative detail"  
  • N.D.C.C. 61-04-32 water user is entitled to payment for damages

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Futile Call

pp. 55-65 of Weber's 9th ed).

Basic rule -- in times of water shortages, subordinate water users must discontinue their water usage so the water is available to be used by those with priority. But, must a subordinate water user relinquish their use of water if that action will not improve the priority users' ability to receive water?

State ex. Rel. Cary v. Cochran, Nebraska, 1940 (p. 55 of Weber's 9th ed.)

  • Central Power and others brought an action against the state to require the state to properly administer the irrigation laws of Nebraska. Central Power had priority to water in the Platte River as of 1882. Central Power contends that the state, by allowing junior appropriators to use water, is damaging Central Power's right to the water.
  • The Platte River loses water as it flows downstream due to evaporation and percolation.
  • The state administrators allowed the upstream junior appropriators to use the water rather than have it "lost" to nature.
  • Central Power argues that all subordinated water right holders upstream from the Kearney Canal must cease their use if there is not enough water to fill the priority rights at Kearney canal.
  • However, due to the heavy loss of water, the trial court concludes it would be an unjustified waste to attempt delivery to the Kearney Canal (essentially under the reasonable use theory that we talked about previously).
  • On appeal: water rights are subject to regulation by the state by virtue of its police power. But the state administrator cannot change priorities. Instead, the administrator must decide whether use of the water by junior appropriators would damage the senior appropriators. If the answer is no (that is, the senior appropriators would not receive any more water even if the junior appropriators' use was restricted), the state administrator can allow the junior appropriators to use water.
  • This court would not allow state administrators to weigh or consider the loss of the water as it flows downstream to the priority user. That would give the administrators too much discretion.

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Restated, as long as discontinuing an upstream subordinate use allows more water to reach the downstream priority user, the subordinate use must be discontinued even though this leads to a substantial loss of water as it flows from the upstream users to the downstream users.

  • Does this rule lead to inefficient use of water?

It is referred to as "call" when a user with priority demands that subordinated uses be discontinued, such as would be necessary during time of a water shortage.

  • During time of a water shortage, why not proportionally reduce each users' amount? Is there a physical reason, or just a political/legal reason?

Consider the note on pp. 61-62 (Weber's 9th ed.) wherein the commentator suggests that priority is not strictly enforced.

This Nebraska case implies that a subordinate use will not be discontinued if that action will not benefit the priority user (futile call).

Can a senior appropriator "call" on subordinate users of tributary streams? Or are tributaries administered as being a water source separate from the main stream or river? See N.D.A.C. §89-03-01-08.

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Need to recognize that stopping groundwater withdrawals will not immediately make surface water available; there can be a substantial time lag due to the relatively slow movement of groundwater.

  • In the case of a water well adversely impacting surface water, stopping the well (even immediately) may not produce results for the surface water for some time into the future.  Thus stopping the groundwater withdrawals would be a "futile call." A senior appropriator cannot shut down an injuring junior appropriator if the shut down will not lead to delivering water at the time and place of need. Is this different than a futile call for surface water (as discussed subsequently)?

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Conditions on a Water Right

Is a use limited to a particular time of the year, or may the appropriator draw the water whenever it can be put to a beneficial use?

  • N.D.C.C. §61-04-06.2. "The state engineer may issue a permit subject to fees for water use, terms, conditions, restrictions, limitations, and termination dates the state engineer considers necessary to protect the rights of others, and the public interest."

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Disclaimer

Email:  david.saxowsky@ndsu.edu

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