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Prior Appropriation Water Law

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by

Melissa Scanlan

on 26 March 2014

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Transcript of Prior Appropriation Water Law

How the System Functions
Prior Appropriation Doctrine
9 states - Pure
3 states mixed with riparianism: CA, OK, NE
6 states were riparian, then switched
Intro to Prior Appropriation Figure 3-1
Intro to Prior Appropriation Figure 3-2
Imperial Irrigation District Canal
Basic Elements of Legal Doctrine
1. Land ownership irrelevant
2. Freeflowing natural streams =
held by state for acquisition by users
3. "natural streams" includes rivers and lakes but excludes GW and diffuse surface water - snow melt
4. Property right acquired by:
taking water of natural stream
beneficially using it
without waste
and with due diligence
permits add =
can deny if not in public interest
5. No on tract use limits
6. Use it or lose it.
- Abandonment
- Permits = forfeiture (defined by nonuse for usually 5 yrs)
conservation = forfeiture?
7. Use Priority = based on date water first used beneficially
"relates back" to date when first work for application was begun.
requires due diligence.
8. Not enough water for all?
Juniors stop taking to ensure seniors have enough
pro rata sharing = rejected by pure appropriation doctrine

Yet, some states use equity considerations to share the pain
Water use and reuse
Where is most junior?
What happens to 4, 2, 3 in year when there is only 10 cfs in river?
When would most senior and most junior be only ones to receive water?
What happens to juniors 3 and 5 if Denver uses and discharges water out of basin of origin?
When no water for juniors, do they lose rights?
General Adjudications v. Modern Permit Systems
Paper rights: grossly inflated claims exceeded total water in river
Ditch rider - "making a call on the river"
statutory class actions to divide up rights
All appropriators come into court
Result = court decree
Missing elements ---> future litigation over irrigation uses
time of flow or season of use right
senior rights open to challenge
regulate initial uses
proactive - no new uses unless unappropriated water exists
maintain records of use
track actual diversions, abandonments, and changes of use
Elements Review
C.L. Property right acquired by:
taking unappropriated water
from a natural stream
through diversion
and beneficially using it
use is reasonable
use is not wasteful
When does a conditional right vest?
Water put to beneficial use
Can appropriator switch crops or expand irrigated lands?
depends on original intent
Measured at point of diversion
as long as losses in transportation and application aren't wasteful
---> consistent with industry practice
Are in stream uses beneficial?
Some state statutes define preservation of fish & wildlife and aesthetic values as a "beneficial use"
Shale Oil - speculation problem
facts p. 254-255
Half firms represent CO
Half firms represent Oil Company
Should state invalidate conditional permit b/c lack of due diligence?
How should state calculate water availability?

Quantum of Use
Multiboundary waters, Climate, Diversions
Illegal?
CO: considers diffuse water to be tributary - so subject to prior appropriation law.

In 2009, CO modified law to allow rain collection if rely on a well and meet other requirements
Full transcript