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Waters Subject to Appropriation

What water can be appropriated? What water is subject to the jurisdiction of the state? Can surface water by appropriated? Can "diffused surface water" be appropriated? Can groundwater be appropriated?

What water on my land, if any, can I capture and use? Can I capture rain that has fallen on my land?

State v. Hiber, Wyoming, 1935 (p. 82 of Gould's 7th ed.)

• Hiber built a dam which cut off the flow to Abramson; the state brought an action to enjoin Hilber. The trial court ruled for Hilber and the Wyoming Supreme Court affirmed.
• All water in natural streams are property of the state -- was this draw a natural stream that the state could control, or was this diffused water that could be impounded without regulation by the state?
• Surface water that is diffused over the surface, derived from falling rain and melting snows, may be impounded by the owner of the land until it reaches a well-defined channel.
• Watercourse -- well-defined bed and banks and a current of water.
• Watercourse -- a definite channel even though the flow is not constant
• Watercourse -- well-defined substantial existence even though it is not enough to create itself a bed and banks
• In this case, the area was dry nearly all the time, has no banks, easily crossed by a vehicle, small watershed, grassy condition; therefore, Hiber could impound the diffused surface water.

• N.D.C.C. §61-01-01 Waters of the state -- surface water excluding diffused surface water but including surface water flowing in a well-defined channel.
• N.D.C.C. §61-01-06 A watercourse entitled to the protection of the law is constituted if there is sufficient natural and accustomed flow of water to form and maintain a distinct and defined channel. It is not essential that the supply of water be continuous or form a perennial living source. It is enough that the flow arises periodically from natural causes and reaches a plainly defined channel of permanent character.
• N.D.C.C. §61-01-01 Waters under the surface of the earth are waters of the state, including water which flows in defined subterranean channels or are diffused percolating underground water.

• Does the law of appropriation apply to springs? lakes? ponds? runoff retained to prevent flooding downstream? glaciers?
• See quote from Melville v. Salt Lake County that authors quote in the notes; p. 87 of 7th edition.

Relationship to Groundwater

Water of the state also includes groundwater, e.g. N.D.C.C. §61-01-01(2). Discussed in more detail in subsequent chapter of the text.

Do all prior appropriation states answer this question the same way?

Developed Water

Am I entitled to use the water that I save when I increased the efficiency of my current use, or must I allow that water to be appropriated to another user?

R.J.A. Inc., v. Water Users Association of District No. 6, Colorado, 1984 (p. 88 of Gould's 7th ed.)

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

• Does this rule discourage water users from trying to eliminate waste?
• Are there broader environmental impacts of eliminating natural conditions that "waste" water?
  • This case, although decided in 1984, arose from actions taken "in the early 1970s."  At that time, environmental concerns were first being addressed at a national level, e.g., the Clean Water Act was enacted in 1972.  Thus environmental concerns were not a critical issue at the time the peat moss and vegetation were removed.  The facts of this case may raise additional concerns if they were to occur at the present time.  Consider the implications if this area was found to be the habitat for an endangered species.
• See Montana's statute on salvaged water; note the alternative approach for managing the use of salvaged water.

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

• Stored water -- is it developed (new water) or is it part of the basin? The authors include a statement that the right to store water is subject to the priority system, but that the right to use stored water is not. Review note 3 on p. 93 of Gould's 7th ed. Water, once stored, has legal characteristics of developed water.
  • See N.D.A.C. §89-03-01-01.3

• Not all diverted water is consumed; some of it returns to the source as return flows. Is a change that leads to increased return flows developed water?

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

• If a state does not appropriate water for in-stream uses (see discussion of beneficial use), are there other ways for preserving natural conditions? See Wild and Scenic Rivers Act (16 U.S.C. §§1271-1287); also N.D.C.C. 61-29.

  16 U.S.C. §1271: "...selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations..."

N.D.C.C. 61-29: preserve the Little Missouri River as nearly as possible in its present state which shall meant that the river will be maintained in a free flowing natural condition, without impoundment, diversion, straightening or other modification; but then there are exceptions for agriculture, recreation, flood control dikes, diking and riprapping).

Last updated February 8, 2007

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