Water Law

▼	Each person uses about 1300 gallons of water per day, through direct and indirect methods
	•	100-200 though direct uses.
▼	General Points
	▼	Primarily State common law
	•	Problem- Water flows across state lands, and states compete with each other for resources. Rivers and aquifers are both impacted. 
	▼	It about quantity- who gets what water when. Allocation
	•	It's not about pollution or water quality issues
	▼	Problem- pollution can effect the uses of water. Also quantity of water can determine the levels of pollution in the water
	•	Dilution is the solution to pollution
	▼	2 very different legal systems have developed
	▼	Riparian- east of the 100th meridian
	▼	Rewards location adn land ownership
	•	Each riparian has a right to a reasonable use of water, and each person has to share and share a like.
	•	If you're not a riparian, you're out of luck. You have to either buy it, or sink a well for agriculture
	▼	Prior Appropriation- West of the 100th Meridian
	•	FIrst in time, first in right
	•	Rewards industry or benificial use.
	•	Grew out of minners and squaters customs
	•	When matters most of all, what and how matter some, who and where don't matter all.
	▼	Hybrid of the two
	•	Developed in wet/dry states.
	•	Only 3 are truly hybrid (CA NE, OK)- The California
	▼	Seqencially Hybrid- OR, WA - First used riparian, then switched to PA
	•	THe wet areas were settled first, so the riparian rights system worked, but then the arid areas we settled later and riparian rights didn't work as well.
	•	Pure Prior Appropriation- CO and intermountain states.
	▼	4 Constant Questions
	•	What is the law
	•	Why is it this way
	▼	Is it good law
	•	Who wins/looses
	▼	What are the intended and unintended consequenses
	•	Social
	•	Economic
	•	Envionmental
	•	Where should we go from here.
	▼	Note about river miles-
	•	0 is at the mouth of the river. 
	•	Water law is the product of years of reactions to disputes as they arose in differnet areas- with different climates ect.
▼	Climate Change- effect on Water Supplies
	•	Increased variability of weather and precipitation is changing how water flows.
	•	Change in runoff amount and time
	•	Navagation issues
	•	Increased preasure on freshwater supplies because of variability
	•	Rising tides allowing sea water infiltration of the aquafer.
	•	Bottom Line: the water supply will change, and the change is going to be most exasterbated in arid areas
▼	Prior Appropriatio nArea
	•	The most senior rights holders area almost all agriculture or mining, depending on the pattern of settlement
	•	Cities are generally some of the most junior rights holders, and they have been trying to buy rights from farmers for years.
▼	Options for water storage
	•	Instead of dams, which harm fish and change river flows, water can be used to recharge existing aquifers
	•	Rainwater capture
	•	Winter flows
	•	Aquifer storage does not evaporate like reveviour storage does.
▼	How to approach water demand
	•	Approach it as a demand side issue, not a supply side issues.
	•	Efficiency gains
	▼	Commidification- Anderson
	•	Government regulation contributes to supply problems
	•	Real water prices decreased between the 60's and 70's
	•	The largest cost of water is the delivery charges, not the water itself.
	▼	But straight commodification can result in not enough resources devoted to public "goods"
	•	Results in impacts on the basin of origin
	•	Enabling Transfers
	▼	Policy
	•	It sometimes not the lack of water that is the problem, but the choices that we make in allocating the water to certain uses over others
	▼	New values about water include values about water left instream
	•	Previously, water's value was derived from pulling it out of a stream
	▼	Precautionary values
	•	Don't mess with stuff too much. Changes in ecosystems can have lots of unknown effects, and its better to try and maintain watersheds that filter and clean water properly.
▼	Pro's and Con's of Private/Gov approaches
	▼	Gov
	•	Can control market
	•	can controls beyond jurisdictions
	•	price can be controls
	•	allocate/categorizs
	•	Lack of inovation
	•	Who influances government decisions? No transparancy.
	▼	Market.
	•	Faster response to supply/demand changes.
	•	More efficient uses
	•	"Highest and best uses"
	▼	Whatever we end up with- it should be
	•	Simple
	•	Sustainable,
	•	flexible
	•	scientifically based.
▼	Water Law Case Approach
	•	What is the Blue letter law?
	•	Why did they decide this way
	▼	Is it a "good" decision
	•	Who wins/who looses
	•	what are the intended unintended consequences
	•	What is the logical future result of this decision.
▼	Utilitarianism is the basis of water law-
	▼	How to provide for the greatest good, for the greatest number, overall in the universe.
	▼	The major difference between the two systems is where they place value
	•	Riparianism places it on use that has been in place for many years
	•	Prior appropriation places it on the first capital expenditure- you develope it you get it. 
	▼	Agricultural Uses
	•	
	▼	Herminghaus - Cal
	•	Owns 20 miles of river frontage, on both sides. Used as grazing lands. The water would naturally flood the land in the spring- there was no artificial pumping of the water
	•	Arguement is that the lower riparian has a right to the natural and uninterupted flow of the water. A right has been vested in the use of the water, and permitting the construction of the dam would interupt the flow of the lower landowners vested right
	•	It would result in a taking.
	•	Dams are not a reasonable use of riparian rights. 
	▼	How did Cal. adopt 2 systems?
	•	The English system was adopted in 1850- riparianism came with it.
	•	But the Miners case earlier, they were not land owners, and you must be a land owner to be a riparian. They used prior appropriation on public lands, but riparian rights on private lands.
	•	Nonriparians on public lands- prior appropriation.,
	▼	But when you have a riparian, they have riparian rights
	•	And those rights are neither gained nor lost through use or disuse.
	•	Hermingnaus does not promote economic developement.
	▼	Cal changed the law later
	▼	All uses- riparians and prior appropriators- must be reasonable and non-wastefull
	•	It elimiated extreamcases like Herminghaus.
	▼	Empire Water- Col.
	•	The power company wants to divert some water out of the stream, and return it to the creek after use.
	•	But that would interupt the flow of the creek
	•	THe creek had lush growth around the water fall, and by diminishing the flow it would interupt the spray from the waterfall and reduce the natuall irigation
	▼	Using the water for its natural purpose is not a "benificial use" under prior appropriation.
	•	Letting the stream mist your plants is not a protectible benificial use of water
	•	Even if it is a "good" use of water.
	•	THey could actually iriigate
	▼	Colorado River Water Conservation Dist v. Rocky Mtn Power - Col
	•	No diversion means no appropriation
	•	No instream right for fish habitat.
	▼	There must be actual diversion of the water with intent to apply it for benificial use under prior appropriation
	•	Actual diversion is a form of public notice that you have a right to the water.
	▼	No plain in stream right for fish habitat
	•	This was changed in the future legislativly.
	▼	Winters v. US This is an important case!
	•	 Ambiguities are resolved in favor of the indians.
	•	Indian reservations come with reserved water rights
	•	Implied rights
	•	federal power and intent recognized.
	▼	They get a priority date- but it is not lost by non-use
	•	A combiinatio of a prior appropriation and riparians
	•	First in time- first in right with a kick of indian tribes. 
	▼	Paper water rights
	•	Rights that exist on paper, but are not actually alowed.
▼	Riparianism
	▼	Terms
	▼	Riparion technichally is on the shore of a river- vs littoral - shore of the sea or lake-
	•	Even though we technically use riparion for everything nowadays.
	▼	Navagable
	•	If it's navagable- then the banks and bed are owned by the soverign.
	•	Non-navagable can be owned by individuals.
	•	Talvag- the deepest portion of the stream- considered the actual center of the stream- regardless of where the talveg actually is.
	▼	Source of title rule- back lots, onced severed can never regain the riparian rights that they once had
	•	used where they want to shrink the amount of riparian rights- California
	•	Unitity of title- once the divided property is reunited under a common owner- the back lots regain the rights that they once had.
	•	Erosion- duh
	▼	Accretion- the deposit of the eroded material.
	•	Riparian rights move with the river- if its a natural process.
	•	Reliction- the movement of a lake away from a high watermark
	▼	Avulsion- a quick change from flooding or dredging.
	•	ownership DOES NOT change when there is avulsive change
	•	Bed and banks- below the ordinary high water pounts.
	▼	Ownership
	•	Must own land that reaches the high water mark of the waterbody- occasionally they must own to the low water mark.
	•	They might be seasonal depending on the level of the watercourse at peak vs low flow periods.
	•	They need not own submerged lands to claim water rights, , but they might need ownership of the bottom of the water body to fill with material.
	•	Ownership rights arassumed to go with the grant of the land, unless a contrary intention is clearly inferrable from the terms of the deed.
	•	Generally- water diverted for any extrodinary purpose must be returned to the stream above the next riparian's land.
	▼	Natural Uses-
	▼	Natural uses are supreme
	•	Artificial uses must be discontinued unless all natural uses are satisfied.
	•	domestic purposes- cleaning washing, and supplying an ordinary number of horses and stock with water.
	▼	Artificial Uses must be reasable.
	•	All artificail uses are equal
	•	A reasonable use is one adapted ot the charchter and capacity of the stream
	▼	Criteria for apportioning rights among riparian owners
	•	legnth of the stream
	•	volume of water in it
	•	extent of the ownership along the banks
	•	charachter of the soil owned by each contestant
	•	area sought to be irrigated
	▼	Natural Flow vs reasonable use doctrine.
	•	By the late 19th century- natural flow had been replaced by reasonable use which required a showing of actual damages as a prerequisite to judicial protection of a riparian right, and made protection of a use dependant on the reasonableness of the competing uses.
	▼	Tyler v. Wilkinson
	•	Each riparian owner owns to the center of the stream, and has use of the water that flows over their property.
	▼	Riparian owners are entitled to the natural flow of the river without diminution to their injury.
	•	You can only diminish or retard the flow to the extent that they do not affect the other owners.
	•	You can use it as it goes by, but you must return it to the stream
	•	This works well- mills return the water to the stream bed.
	▼	The stream is attached to the land itself- the right to the water is appointanant to the land itself.
	•	Without a right to the land, you have no right to the water.
	▼	But- there is a kind of prescriptive right that gets established by the continued use of a certain amount of the water
	•	You are entitled to
	•	Right is common to all.
	•	Share in any shortages
	•	Priority does not equal a right, unless you establish one via prescription/ advese possession.
	•	Riparianism is well suited to area where water power,  not consumption, is the major use.
	▼	A lot of riparianism is essentially anti-developement.
	•	A literal application would deny entrepenuers the ability to divert or appropriate water for economic uses
	•	Riparion- Big R- Riparian doctrine vs. riparion- little r- rights that accompany riparian ownership.
	▼	Transfer of Rights
	•	You can't transfer riparion rights to non riparion land
	•	You cant tranfer them in a way that binds anyone other than yourself to the transfer.
	•	Cant create riparions by dredging an artificial water course.
	▼	Thompson v. Enz
	•	Gun Lake subdivision. - The people on the canal get an access easement across the riparions who own the mouth of the canal.
	▼	Traditional riparion remidy was an injunction
	•	A pretty serious thing: people had to undo their investment in what ever they were doing.
	•	Damages may be better- it allows both uses to co-exist with one paying for the other.
	▼	Pyle
	•	The law should support the use of water, by grant, from a riparion to a non riparion
	▼	Its not a transfer of the riparion rights- just a right to use the water.
	•	Its not the transfer and severing of the right.
	•	Use does not become more or less reasonable because it is transfered to a non-riparion land owner.
	▼	Pabst
	▼	You can only use riparion rights on the riparion land, AND only in the basin from which the water was drawn
	•	Why? Return flows are more likly to return to the water source, and replenish the stream for downstream uses.
	•	Watershed is now a technical definiton.
	▼	Adverse Water rights
	•	Won't allow for the aquisition of riparion rights, but you may get a use right .
	▼	How do you get preseciptive rights?
	•	You must injure them in a way that they will notice, and it must be for a certain length of time.
	•	Prescription does not run up stream.
	•	You can loose your riparion right by prescription.
	•	Non-use does not use a riparion right
	•	Muddyness of the riparion doctrine makes for flexible remidies.
▼	Prior Appropriation.
	▼	History
	•	Spainish Settlers
	•	Morman Settlements
	▼	Miners Custonms
	•	From Gremany and England
	•	The "spiritual" underpinnings of water law help us to understand everything better.
	▼	Irwin v Philips
	•	First in time, first in right.
	▼	The miners were opperating on public land, so there could be no riparinaism- there was no landowners
	•	The miners were there with the implicit consent of the government- they encouraged people to move there and mine.
	•	"The miner, who selects a piece of ground to work, must take it as he finds it, subject to prior rights. 
	▼	Coffin v. Left hand DItch
	▼	Water rights are not tied to the land, nor are they tied to the watershed.
	•	The good land might not be right beside the stream- they don't want to prevent the use of water on good land, while forcing its waste on land of poorer quality that just happens to be next to a river.
	•	In the absence of legislation to the contrary, the right to water in now way is dependant on the locus of its application to the benificial use designed. 
	▼	Denver v. Sheriff
	▼	West slope rights can only be used after they have used east slope rights
	▼	Court doesn't want them to sell or lease the east rights to farmers, and instead use their west rights for supply
	•	Supremes overule that decission- its the city's call, to some degree, about how to use their water rights
	•	Cities need flexibility in their water use decissions.
	▼	Basic Ellements
	•	Requires diversion and appropriation (application for benificial use.
	▼	PA right includes components of
	•	water source
	•	Point of Diversion
	•	type of use
	▼	 priority date
	•	Earliest date of your activity as long as you activly persue the activity.
	•	Completing the activity might take several steps
	•	Intent and manifestation are required to establish your priority date, and any relation back of the date to when you began.
	▼	place of use
	•	once you start using the water it becomes appurtant to the land.
	•	maximum amount of use
	•	time of use.
	▼	Common Law ellements are:
	•	intent
	•	notice
	•	diversion
	▼	application to a benificial use.
	•	The true test is successful application thereof to the benificial use designed- and the method of carrying the water to the sources of the application is immaterial.
	▼	When the application to a benificial use does not require physical diversion, diversion is not required for a water right to vest
	•	What about notice? And manifestation of intent.
	▼	Criticisms
	•	There is no real reasonable limit.
	•	There is no incentive to conserve- it is an anti-conservation doctrine- it punishes conservation
	•	You right is not tied to other's use- its independant of others use
	•	It is critical of instream use
	▼	The PA doctrine is highly interdependant on your neighbors.
	•	When one user changes the type of use, it can impact the other users who have vested their rights in the current ammounts of water that area available.
	•	When one user changes that- it changes everything else on the stream.
	▼	Acquisition of PA right
	•	Need unappropriated water (maybe)
	▼	From a natural watercourse
	•	usually needs a defined bed and banks.
	•	(intent)+ diversion+benificial use=appropriation(right)
	▼	System now
	•	Water codes, permitting agency, watermasters, and general strea adjudication.
	▼	Intent to divert
	•	Diversion acts as notice of your right
	•	It also allocates an ammount by virtue of a visible appropriation.
	▼	Exceptions:
	•	Stock watering in-stream don't require diversion
	•	The stock themselves are the notice to others that something is going on.
	▼	The mere use of grasses grown because the water flowed there is NOT intent to use the water.
	•	There must be something more than simply "taking natures bounty"
	▼	Springs-
	•	If the spring arises on your land, and it DOES NOT flow into a creek, then the land owner can appropriate for their own use.
	▼	Perfecting a PA right
	•	Demonstrate an intent to appropriate water
	•	actual diversion of water from the water course
	•	application of water to a benificial use.
	▼	Denver v. NCWCD
	•	The city claims a right on the Blue river based on an overall project that included 2 other water basins.
	•	Work did not begin on the blue rive section of the project until 1946, while the other parts of the project started in 1914
	•	Municipalities generally has a more freedom with the use it or lose it aspect of PA. - Called the growing communities doctrine
	•	Can the city relate back all the work they eventually did on the project, to 1914, making them senior rights holders.
	•	"The first step taken" - a survey- is not in an of itself evidence of intent to appropriate water.
	▼	"The better rule is priority on the stream and not priority on a project."
	•	There must be intent and an overt act.
	•	Intent is subjective- it comes together with the overt act to give others notice.
	▼	Your priority date relates back to the point where your intent and your overt act to appropriate water converge, as long as you continude to dilligently develope the water source.
	•	Intent prong= subjective
	•	Overt Act= objective.
	▼	Cary v. Cochran
	•	Platt river- a true meandering stream with very little force. It has a permeable bed after the joining of the  north and south fork
	•	It losses lotso f vater through evaporation because it is wide and slow, and percolation
	•	Senior user downstream from junior users wants them to stop using water because their right is being effected
	▼	Junior users defend by saying that the river will lose all its water by the time it reaches the senior downstream.
	•	The futile shutting off of the juniors, only to have all the water lost in transportation is wasteful.
	•	The junior must shut off only if "a usible quantity of water" will reach the senior- they need not receive their full allocation
	▼	Futile call doctrine.
	•	If in the water masters determiniation, the call of the river by a senior right holder would be futile, then the water mastercan ignore the call and allow juniors to use out of priority. 
	▼	Crowley
	•	The origonal taker or appropriator also aquired the right to continue to use his method or means of diversion which he has installed.
	•	"Ditches and flumes do not need to become pipes and pumps"
	•	BUT- the force of the water is not part of the appropriation.
	•	The definition of what a reasonalbe method of diversion and an unreasonable method is, is largely based on customary practice.
	▼	Benificial uses without waste is the basis, measure and limit of your water right
	•	Type of use
	▼	Amount of use.
	•	Without waste.
	•	There are very few cases that actually cut down a persons right based on waste.
	▼	Water DUty
	▼	The amount of water that is reasonably neccessary to grow the normal type of crop on a certain type of land
	•	Based on the professional judgement of a specialized agenecy normally.
	▼	It's only legal waste unless you are using an excessive amount given the local custom
	•	There is a difference between the legal and actual waste.
	•	Limitation of benificial use are not a 5th amendment taking
	▼	The right is to water of a certain quality, not water with silt in it.
	•	You don't get flow or velocity either.
	▼	Runoff- salvage and reclaimed water in PA.
	▼	Steed 
	•	Steed claimed a water right to the run off of new escalante 
	•	New escalante changed how they irrigate, resulting in less run off
	•	The Court says that one land owner can't force another to continue seeping water, even if its to the detriment of the junior appropriator.
	▼	If New escalante couln't keep their water, and were forced to continue seeping water onto the lower landowner, there would be no incentive to become more efficitnet.
	▼	EXCEPTION: If the runnoff water returns to the stream from which it was taken, then the lower land owner can insist that the upper owner continue their practice or cut their water right.
	•	EG: 200cfs is used from the stream by A and upper owner. 125 CFS returns to the stream through inefficiten practices. A changes their irrigation method, and now only need 75 CFS to acheive the same results. If B, a lower riparian, depends on the return flow, then A will only have a right to the 75. They can't expand their opperation to take advantage of their total "right" of 200, because in practice ,they never "used" the 200 anyway, so they never had a right to it.
	•	A lower owner cannon aquire a prescriptive right to seeps or percolating water comming off of another's land
	•	You can capture your seepage water for reuse.
	•	How you charachterize something, determines the legal consequences.
	•	You might be able for force a return flow, but not seepage.
	▼	City of Denver
	▼	Point of return is not something that needs to be adjusted though a  court
	•	You do need to adjudicate the diversion point and usage changes ect, but not diversion points.
	▼	Shelton
	▼	Reclaiming water from plants and wetlands does not get you the water free from call- superior to all other appropriators.
	•	To go the other way- people could plant trees that consume a lot of water, and then they could cut them down and claim the water.
	•	BUT- going the other way would encourage owners to clear water hungary palnts, and allow for more water for everyone on the stream.
	▼	Salvage water
	•	"Finding" water already in the system, but otherwise not avaialble to users.
	▼	States have moved statutorily to change the law by granting rights in salvage water
	•	It encourages changes to more efficient methods of use.
	▼	Oregon- you get 75% of the saved water, the rest goes instream.
	•	If public funds are used, then the public's share of the water goes up.
	▼	Transfer- apply to ANY change to the elliments of your right.
	•	ANy change of use that goes through a water court or water buero.
	▼	THere must be "no injury" to junior appropriators.
	▼	THe junior's take the river as they find it.
	•	It kind of gives the juniors a right to to continued type of use from the seniors.
	•	This can limit the senior's ability to transfer the water.
	•	You look at the historical consumptive use of the water, and the current use of all of the juniors on the system.
	▼	The minute you ask for a transfer, your water right will come under intense scrutiny to veryify your historic consuptive use, your diversion point ect.
	•	All of your ducks had better be in a row before you ask for a transfer of rights. 
	•	All that you'll be able to tranfer is your CONSUMPTIVE use- which is probably going to be less than your total right.
	▼	People relying on your return flow will come in an protest
	•	And people will look at the juniors uses and argue that they are wasteful.
	•	It becomes a free-for-all and transaction costs become huge. 
	•	There becomes significnt disincentive to transfer water.
	•	In Colorado- what you can transfer only what you've historically consumed
	▼	THe generaly rule of transfer is the no injury rule
	•	Then a junior is relying on your return flows to satisfy their right, the transfer will be denied.
	•	The right to change a point of diversion is limited in quantity by historical use at the origonal decreed point of diversion.
	▼	There is a distinction between waste water from irrigation and return flows from irrigation.
	▼	Return flow is seepage that leches its way back to the stream
	•	Return flow results from use.
	▼	Loss
	▼	Abandonment
	•	Intent to abandon
	•	Actual abandonment
	▼	Forfeiture
	•	A creature of statute
	▼	Non use for a specified period of time.
	•	Many states are 5 years
	▼	Defenses
	•	Non-use because of drought
	•	Land enrolled in federal conservation program.
	•	The presumption of forfeiture is only rebutible with statutorily enumerated defences.
	▼	Prescription/Adverse possession
	•	Possible in the PA system in very limited situations
	•	No available against the state.
▼	Modern Statutory Systems
	▼	Regulated Riparianism
	•	Very different from western water codes
	▼	Western system
	•	State owns water
	•	comprehensive codes
	•	permit is the exclusive way to aquire a right
	•	priority as alocation principle
	•	Relation back is codified
	•	state entity issues permits
	•	General stream adjudications to decide the rights of everyone on a strem.
	▼	Permit first, and aquire right.
	•	Permit- then licence
	•	Permit is temprary
	•	Licence is like a certification of the right.
	▼	Issues under water codes
	•	Water availability
	•	Public interest review
	▼	preferance v. priorities
	•	Preference statutes are used to decide between competing applications or during emergancy situations, or private condemnations preceeding
	•	They do not trump priority though.
	•	extent of water rights
	•	Every PA system now required permission to appropriate
	▼	Water availability is a threshold issue now.
	•	There must be availability of water to appropriate it now
	•	Lots of stream are over appropriates on paper, and this is an attempt to curb this. 
	▼	Preferance statutes DO NOT overrule first in time.
	•	They are essentially used to break ties between people with competing applications. 
	•	May water rights cases become administrative cases now.
	▼	2 part process
	•	permit to start construction to allow for appropriatieon
	•	Then you go back to prove what you've done and get the official "paper water right"
	•	Makes it a kind of difeasable property right.
	▼	Public Interest Requirement.
	▼	"the affairs of the people in the area directly affected by the proposed use"
	•	Does not allways need ot be the local public public interest- it could be the interest of the people of the state"
	•	The burdeon of proof in all cases rest with the applicant
	•	In Oregon- the presumption is that projects are in the ublic interest.
	▼	Options for public interest statutes
	•	General "Public Interest" Statute.
	•	Legislative list- open to adding further ellements
	•	Legistlative list- closed to cosider only those ellemnets
	•	Agency List
	▼	ellements of public interest
	•	protction of fish and wildlife habitat
	•	aquatic life
	•	recreation
	•	aesthetic beauty
	•	transportation and navagation values
	•	water quality.
	•	All of these ellements do not take into account ecconomic public uses.
	▼	Organization
	▼	Acquisition
	•	Reynolds
	•	Sand Point
	•	Denver v. NCWCD
	▼	Enjoyment
	•	Cary
	•	Crowley
	•	Schodde
	▼	Grimes
	•	Right was cut down because they were wasting water- Using 4 times as much as was needed for the purpose
	▼	AB Cattle
	•	Silt- right is to water- not silty water
	▼	Steed
	•	Seepage
	▼	Denver v. Fulton
	•	Imported Water- juniors can get rights, but maybe ....something???
	•	Shleton Farms
	▼	Trnasfer
	•	Green
	•	Orr
	•	Metro Denver Sewage
	•	Boulder v. Left Hand
	▼	Loss of Right
	•	Jenkins
	▼	Statutory Administration
	•	Wyoming Herford
	•	Return Flow
	•	
	▼	City of Thornton v. Fort Collins- Instream flow
	▼	Diversion need not be out of the stream.
	•	You can do a side dam to force the water back into it's historic channel after a flood changed the banks.
	•	The dam diverts the water from its "natural" water course, and would be a valid appropriation.
	•	"Controlling water within its natural course or location by some structure or device for a benificial use may result in a valid appropriation"
	▼	Why do we still have a need for a diversion to be a valid appropriation?
	▼	Notice?
	•	There are coheirant systems in place that negate this.
	•	Maybe a better reason that in the past, all benificial uses were out of stream. Now that we recognize benificial instream uses, this may just be a vestigial aspect of the old system
	▼	To require some sort of capital contribution
	•	It shows that you are serious about appropriating
	•	It prevents speculating on future growth.
	•	Few states allow PRIVATE owners to hold in stream rights. 
▼	Review Issues
	•	Duty of water is ALWAYS associated with and irrigation right
	•	Adverse possession and prescription are essentially the same for our purposes.
▼	Public Trust
	▼	Navagability
	▼	Title
	▼	Title navagbility is determined by the Daniel Ball.
	•	But doesn't that assume that the test for navagability is the same in admiralty as in water law.
	▼	If a river is navagable in fact, or navagable according to the test in the daniel ball- then it is navigable- 2 part test.
	▼	Over which trade or travel may comence in the ordinary condition, over the customary modes of travel
	•	Determined at the time of statehood
	•	A historical test- was it navagable in a canoe in 1859- in the case of Oregon?
	•	Log rafting
	▼	Commerce?
	▼	Doesn't require actual commercial use
	•	All you have to show is that- If there was commercial use at that time, then it would have been n this mode. 
	•	Navagability in fact.
	▼	Navagation Servitude
	•	The part of a waterway that tis significant enough to support real interstate commerce such that it gives the Feds a superior right to title of that part of the land, instead of the state.
	▼	Public Trust
	•	Attaches whereever there is public ownership
	•	It may also attach in areas privatly owned, depending on state law
	▼	The concept of public trust doctrine is very old
	•	Tracable back to the institutes of justinian.
	•	Submerged- and submerisble- lands, soverign lands- all refer to the same lands.
	•	Title to the beds of mnavagable waters flowing though reservations continues to be unsettles in part because lower courts do not always apply ot the Montana case presumption against tribal ownership.
	▼	Illinios Central
	•	You can't abdicate the duty to protect the public trust, and to allow the trust to sell the land, the public in the future will be harmed
	▼	You CAN convey small sections of lands if you are furthering the value of the public traust by doing so.
	•	Convey the land under a wharf, to allow it to be built
	•	AND when conveying land does not harm the public trust.
	▼	If you have done a wholesale conveyance- you can pull it back.
	•	If you have done less than a wholesale conveance, then you may be able to pull it back 
	•	The core of the public trust doctrine is the states authority as sovereign to exercise a continuious supervision and control over the navagable waters of the state  and the lands underlying those waters. 
	▼	Public Use Sources
	•	Equal Footing
	•	Roman law
	•	Natural law
	•	Fed Common Law
	•	English Common Law
	•	Evolving Common Law
	•	Constitution
	▼	Soverign Lands
	•	Tidelands
	•	"Navagability" in the Danial Ball test sense.
	▼	Expanding Public Rights to Surface Use
	▼	Floatable Test for Navagability
	•	A stream that is capable for recreational use, then the public should be able to use it.
	•	If it can be "floated" then it is navigable for recreational purposes.
	▼	Navigation Servitude
	•	Basis is the commmerce clause.
	•	The US may change the navagability of a strea, or otherwise impair or destroy a riparian's access to navagable waters even though the market value is substantially diminished
	▼	WHY?
	•	The navagation servitude is always on navagble rivers. - The property owner has not right to continue to enjoy the water that they never had a full right to enjoy in the first place.
▼	Constitutional Takings-
	▼	A problem developed when moving from riparianism to PA
	•	RIparians  have a future interest in their water rights.
	▼	When there is a change, there is almost always a constitutional challenge
	•	THe law has taken away the future right to use water- a component of riparianism.
	▼	It would be unconstitutional to extinguish future ripraian rights
	•	But in a general stream ajduication the riparian will loss all priotity with respect to rights currently being exercised
	•	UNexercized rights will be on the same plane as future appropriators. 
	•	The State has police powers to regulate things.
	▼	What do the riparians get now?
	•	Pretty much the 
	▼	Statutes limiting water duty
	•	the rule is benificial use.
	▼	By limiting the water use to a certain amount, they are cutting off additional use, regardless of the benificial use of the additional water
	•	The statutory rule had been abstracted away from reality too much though- and was unrealistic.
	•	 Duty statutes are not necessarily unconstitutional though
	▼	Tulare
	•	Constitutional taking vs regulatory taking
	▼	Taking analysis
	▼	What is the property interest
	▼	We look to state law here
	•	So there is an intersection of state/federal issues
	•	The public trust doctrine can "cloud" title
	•	You must determine what the property interest is before you can ever start to determine what the property right involvd is. 
	•	Where do your property rights come from????
▼	State/Fed Issues
	•	Water has been something to be used for so long, and it is difficult to more paridigms to: this is something to be conserved.
	•	
▼	Ground Water
	▼	Facts
	•	95% of the unfrozen fresh water in the world is ground water.
	▼	No storage is needed
	•	No evaporative loss that comes from dams
	•	No transports costs- you pump it where you find it.
	▼	Generally more reliable
	•	Supply does not fluxuate based on rainfall- as much
	•	50% of the total population, and 95% of rural population uses it for drinking water.
	•	25% of use in the west is overuse.
	•	Fosill water- water that will not be replaces through natural flows
	•	Metioric- ground water that flows and is subject to replacement through rainfall
	▼	General Issues
	•	Seperate Legal treatment from surface water
	•	state law
	▼	5 different allocation doctirines
	▼	Absolute ownership
	•	English rule
	•	property owner can do what ever they want with the ground water
	•	based on old thought about how ground water works
	•	rule of capture
	▼	reasonable use
	•	Shipping water away from the overlying is per se not reasonable.
	•	should really be "the not crazy unreasonable use" doctrine.
	•	Doesn't by itself stop overdraft.
	•	rest. § 858 (torts)
	▼	correlative rights
	•	pro rata share of everyone who overlays to aquifer
	•	if you don't own the overlying water, then states may allow PA of the remaining water.
	•	You can only move SURPLUS water off of the site w/ Correllative rights. 
	▼	prior appropriation.
	•	Even if you are senior- your " reasonable
	•	States do not always protect the senior in their "reasonable historic diversion"
	•	Is your well appropriately deep to avoid interference from other juniors?
	•	Fed. Drinking water regulations are superimposed
	▼	How close can you put wells before their cones of influance's start to interfear with others wells.
	•	easily solved with spacing.
	•	Well interfeance
	•	overdraft/mining/safe yeild
	•	contamination
	▼	subsidence
	•	drawing down the water can then cause fissures and depression on the overlying land
	•	by removing the water you may make the land unable to carry as much water as it did in the past.
	▼	conjunctive management
	•	hydrologic connection
	•	aquifer storage and recovery
	▼	Integrated System,
	•	Just because a state uses the same type of appropriation for both surface and ground water, does not mean that they are an integrated system.
	▼	Issues
	•	Mining
	•	Interfearance
	•	Overdraft
	▼	PA
	•	A senior must be using a reasonable pumping level before their seniority will be enforced.
	•	A senior may have a prior right to ground water, if his means of appropriation demands an unreasonable pumping level his historic means of appropriation will not be protected.
	▼	Ground water is a new phenomenon
	•	Surface use is easy- it came first.- surface users are almost always prior to the "junior" ground water pumpers in an hydrologically connected water system.
	▼	Administration of Non-Rechargable Basins
	•	Nothing is essentially wrong with pumping from non-rechargable aquifers
	•	It must be manageged by fixing a rate of withdrawl that will result in a determination of the economic life of the basin.
	•	Tributary Ground water
	▼	Not non tributary
	•	non tributary water in a designated basin.
	▼	The common sense regulation of water as an integrated system is difficult
	•	and may be over regulation that does not contribute to better ground water use.
	▼	Arizona
	•	has tried to make a distinction between percolating waters and "subflow"
	•	Percolating waters were not available for appropriation.
	▼	You get a property right to the water once it has been reduced to your possession though pumping.
	•	you don't own it when it is below your ground.
	▼	California
	▼	emblemanic of the correlative rights doctrines
	•	riparianism turn vertically.
	•	if its a recharging basin(then the overlying owners are NOT appropriating all of the safe yield) then Non overlying owners can get rights as appropriators, which opperates in a first in time, first in right 
▼	Federal Reserved Rights Doctrine
	•	Title Navagability
	•	Navagation Servitude
	•	Fed Environmental laws
	▼	Water on Federal Lands- Federal Reserved Rights.
	▼	When land is set aside by the government- there is a presumption that water was also reserved to accomplish the purpose of the reservation
	•	National Forest? not much need for water
	▼	Indian Reservation? The purpose if to turn them into farmers, so water to farm is IMPLIED in the reservation of the land.
	•	How much? Enough to fulfill the purpose of the reservation, AND NO MORE.
	▼	The date for priority is the date of the reservation
	•	The right is not lost by non use
	•	The power to do this is from the property clause
	▼	How does this fit with states water rights?
	•	Not very well.
	▼	Indian Lands
	•	The amount of the water reserved is judged by the amount of practically irrigable acres, NOT the number of people living there. 
	▼	The time of the reservation does not matter
	•	Federal reserve rights can attach after statehood.
	•	Priority Date is "time immemorial"
	▼	Priority date
	•	The date of the reservation
	•	The is no effect on reserved rights what a state comes into being
	▼	Reservation comes into play once land is reserved,
	•	If it's just normal BLM land, there is no water right until the land is set aside for a particular purpose.
	•	Some BLM land is reserved- for wilderness, ect. And water rights do attach to those lands.
	•	
	▼	Arizona v. Cal
	•	Reservation of water rights were extended to NON-indian lands
	•	Statutes, treaties, and executive orders can all establish federal reserved rights. 
	▼	All stream adjudications have to go through state court,
	•	but you apply federal rules
	•	and you can join the federal government
	▼	Quantity of Water Reservered
	•	Look to the Organic Act- the purpose of the national forest system.
	▼	Only the primary purpose of the reservation speaks to reserved rights
	•	A secondary purpose of the reservation does not come into the water reservation analysis
▼	Interstate Issues
	▼	Methods of Settling Interstate issues
	•	Private Litigation
	▼	Intersate Litigation
	•	Supreme Ct Origonal Jurisdiction
	•	There is a threshold that must be surpased for the Supreme court to hear an interstate case to begin with
	▼	Equitable Apportionment
	▼	The Supreme's are VERY HESITANT to issue final orders on this ground
	•	Instead they dismiss w/o prejudice a lot
	▼	Interstate Compacts
	▼	Most Famous is the colorado compact of 1929
	•	Compact commission had 3 members, and the formula to divide up the river didn't work.
	•	Most cases at the supremes are about Compacts.