water law outline

WATER LAW

I. Introduction.....................................................................................................................2II. Prior Appropriation.........................................................................................................4

1. Origin........................................................................................................................42. Attributes...................................................................................................................4

A. Diversion...............................................................................................................4B. Beneficial Use.......................................................................................................8C. Priority................................................................................................................18D. Waters Subject to Appropriation.........................................................................23E. Geographical Restrictions to Use.......................................................................24G. Protection of Means of Diversion.....................................................................26

3. Regulations.............................................................................................................27A. Permit System....................................................................................................27B. Availability of Water............................................................................................29C. Public Interest.....................................................................................................29

4. Loss........................................................................................................................305. Transfer...................................................................................................................346. Reuse......................................................................................................................367. Summary.................................................................................................................37

III. Groundwater...............................................................................................................381. Doctrines.................................................................................................................382. Problems.................................................................................................................39

A. Managing Storage..............................................................................................39B. Protection of the Means of Diversion..................................................................42C. Physical connection between Groundwater and Surface Water........................43

IV. Riparian Rights...........................................................................................................44A. Basis of Right.........................................................................................................44B. Reasonable Use.....................................................................................................453. Non-Riparian Uses; prescription and grant, municipal...........................................47

A. Prescription.........................................................................................................47B. Grant...................................................................................................................47C. Municipal Supply................................................................................................48

4. State Regulation of Riparian Rights........................................................................485. Abolition and Combination......................................................................................48

V. Water Distribution Organizations................................................................................49VI. Interstate Allocation....................................................................................................50

1. Equitable Apportionment.........................................................................................502. Interstate Compacts................................................................................................523. Congressional Apportionment.................................................................................54

VII. Public Right...........................................................................................................56A. Navigation............................................................................................................56B. Public Trust Doctrine............................................................................................57

VIII. Federal Water Law...............................................................................................591. Constitutional Powers...........................................................................................592. Federal Legislative Programs & Preemption of State Law...................................61

A. Licensing............................................................................................................63B. Construction and Management of Federal Projects...........................................63

3. Reserved Water Rights.........................................................................................65A. Indian Reserved Rights......................................................................................65B. Federal Reserved Rights....................................................................................66

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C. Adjudication........................................................................................................66

I. Introduction

Key Concepts

State Level Managemento Kansas Water Office / Kansas Water Authority (see supp p. 11)

o Water Resource Planningo Division of Water Resources

o Chief Engineero Department of Agriculture

o Kansas Department of Health and Environmento Water Quality issues

Federal Level Managemento Army Corp of Engineers

o Large Dam Projectso Flood Control

o U.S. Bureau of Reclamationo Department of the Interioro Reclaim projects

o Environmental Protection Agency

Hydrology – The scientific study of watero Water Cycle

o Precipitation; Run off (surface and groundwater); surface runs from streams and rivers to ocean; and then to evaporation.

Consumptive Use – Measure of water used in any given processo Example #1 – Entity takes 100 acre feet and returns 100 acre feet

o 0% consumptive useo Example #2 – Entity takes 100 acre feet and returns 70 acre feet

o 30% consumptive useo Example #3 – Entity takes 100 acre feet and returns 0 acre feet

o 100% consumptive use

Technical Aspects

o Volume Termso Gallono Acre Foot

Acre = 43,560 feet Acre Foot = 325,851 gallons

208 ft x 208 ft x 1 ft. deep 1 million gallons = Roughly 3 acre feet

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Water Right - 82a-701(g) is a real property right.

Water - Is personal property. U.C.C. Article 9 applies. Statute of Fraud applies if the contract is over $500 and is in writing.

See, Water Cycle on p. 81

o Rate of Flowo Volume over a period of time

Example – Million gallon/per dayo Typical Kansas Irrigator

o Rate of flow = gallons/per minute (gpm)o Section (640 acres)

Typical farm is 125 acres (160 acre made into a circle) Multiple by 2 feet of water (see chart)

o 250 acre feet a year Rate = 800 gpm

Definitions Water Table – top of the saturated level of groundwater Quantity:

o Acre-foot: 325,851 gallons (43,560 cubic feet)o Million Gallons Day (mgd) – Municipal useo Cubic Feet per Second (c.f.s.) – stream flowo Gallons per Minute (g.p.m.) – well rates

o Diffused Surface Water - water present on the surface of the eartho Evapotranspiration - process by which water is evaporated through plant systemso Porosity - actually the amount of pore spaces and the ability of the formation to hold watero Transmissivity - speed at which water passes through intersticeso Interstices - Pore spaces within a water formation that hold watero Cone of Depression – the recessed area of water immediately adjacent to the well boreo Drawdown – difference between the initial water table and the lowest level of the cone of

depressiono Alluvial Groundwater – underground water associated with river systems

II. Prior Appropriation

Prior Appropriation history attributes (parameters)

o (1) source of W – will be specifically stated in permito (2) place of use – will be defined w/ precisiono (3) type of use

in KS: domest defined in stat; others in regs; dom’s prefered in many states all are said to be benficial

o (4) point of diversion – gen’ly placed strategicallyo (5) date – gen when app arrives in office; # giveno (6) quantity reqo (7) rate of diversiono (8) consumptive use

708(b) permits changes in H2O but only aft approval of chief engineer 3 types of changes

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California Oregon Power Company – Water rights are state rights, not federal rights. When the federal government gave western land to private owners it did not give water rights.

Useo benficial gen deals w/ type of use o reasonable is the quantity sought (rsnbl for area and type of use)

1. Origin

o Irwin v. Phillips (CA, 1855; p.18)o stream diversion for mining purposeso Court finds: “first in time first in right”

Use must be beneficial

2. Attributes

A. Diversion

o In Re Adjudication of the Missouri River Drainage Area (MT, 2002; p.22)o Wildlife & Parks “appropriates” water for instream use

“The appropriation doctrines’ history of flexibility and practicability support a holding that a diversion is not required when the application to beneficial use does not physically require a diversion”.

o Private users must divert water and put it to beneficial use in order to perfect appropriation

o KS: State set “Minimum Desirable Streamflows”o All private appropriators post-MDS are subject to the MDS Standards; KSA 82a-703a,

703b, 703c Supp p.25

§701(f) -- Appropriation Right is a right: To divert from a definite water supply a specific quantity of water at a specific rate

of diversion; Provided such water is available in excess of the requirements of all vested rights

that relate to such supply and all appropriations rights of all earlier date that relate to such supply; and,

To apply such water to a specific beneficial use or uses in preference to all appropriations right of later date.

§701(g) -- Water Right means: Any vested right or appropriation right under which a person may lawfully divert

and use water; It is a real property right appurtenant to and severable from the land on or in

connection with which the water is used; and, Such water right passes as an appurtenance with conveyance of the land by deed,

lease, mortgage, will, or other voluntary disposal, or by inheritance.

§702 – Dedication of use of Water

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All water within the state of Kansas is dedicated to the use of the people of the state, subject to the control and regulation of the state.

§703 – Water may be Appropriated subject to Vested Rights Except as provided in 703a and subject to vested rights; All waters within the state may e appropriated for beneficial use as provided. Nothing contained in this act shall impair the vested right of any person except for

non use.

§703a -- Minimum Streamflow; Duties of the Chief Engineer Whenever the legislature enacts legislation establishing a minimum streamflow for

any watercourse in the state. The Chief Engineer shall withhold from appropriation that amount of water deemed

necessary to establish and maintain for the identified watercourse the desired minimum streamflow.

§703b -- Minimum Desirable Streamflow; Cond. Of App. Right. All appropriation rights, except for domestic purposes, applied for after 4/12/1984,

are subject to minimum desirable streamflows established pursuant to law on or before 7/01/1990.

All vested rights, water appropriation rights and applications for permits to appropriate water having a priority date on or before 4/12/1984, shall not be subject to any minimum desirable streamflow requirements established pursuant to law.

§703c – Minimum Streamflows Established Kansas Minimum streamflows, see supp. p. 25

§705 -- Acquisition of App. Right to use Water other than Domestic No person shall have the power or authority to acquire an appropriation right to the

use of water for other than domestic use without first obtaining the approval of the chief engineer.

No water rights of any kind may be acquired hereafter solely by adverse use, adverse possession, or by estoppel.

§712 – Notice of Approval or Disapproval of Application The chief engineer shall notify the applicant of the approval or disapproval of the

application. Upon approval, the chief engineer shall authorize the applicant to proceed with the

construction of the proposed diversion works and to proceed with all steps necessary for the application of the water to the approved and proposed beneficial use and otherwise perfect his application.

The chief engineer may approve smaller amount than requested and may approve an application upon such terms and conditions to protect the public interest.

Approval constitutes a permit to proceed with construction work. No common law claimant without a vested right, or other person without a vested right, a prior appropriation right, or an earlier permit shall prevent, restrain, or enjoin an applicant from proceeding with construction or diminishing the water supply in accordance with the terms and conditions of the permit.

§728 -- Unlawful Acts; Penalties

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It shall be unlawful for any person to appropriate or threaten to appropriate water from any source without first applying for and obtaining a permit to appropriate water, or for any person to violate any condition of a vested right, appropriation right or an approved application for a permit to appropriate water for beneficial use.

Penaltieso violation of this provision will be a class C misdemeanor; o Upon notice, each day that a violation happens will viewed as a separate

offense.

K.A.R. §5-1-1(z) – Diversion: The act of bringing water under control by means of well, pump, dam, or other

device for delivery and distribution for the proposed use.

K.A.R. §5-1-1(aa) -- Diversion works: Any well, pump, power unit, power source, dam, and any other devices necessary to

bring water under control for delivery to a distribution system by which the water will be distributed to the proposed use; and,

Any other equipment required as a condition of the permit, including a check valve, water level measurement tube, meter, or other measuring device.

B. Beneficial Use

ID Dept. of Parks v. ID Dept of Water Administration (ID, 1974; p. 28)o Idaho Statute declaring that preservation of waters for scenic beauty and recreational use is a

beneficial use of water.o Water users challenge the statute on the grounds that the Idaho constitution defines beneficial

uses.o Court rejects water users arguments, saying that constitution provides preference and

not sole examples of beneficial use.

NOTES:1. A core principal.2. Instream appropriations 3. Private instream appropriations4. Duty of water. (p 37)

p 37 note 1 how big is Q you can get and how big is Q you can perfect in any 1 year during the perfection

period (perfection rel’d to making it a prop right and amount used)

H2O Duty concept that guides eng in granting permit …. can only get … element of economics is always in the backdrop last sent: out of date sent re KS 2/1.5/1 map on p. 98 (> precise now) (map: implicit duty that guides us now) if growing something weird that req’s > w can make case for it – but have to convince chief

engineer that that thing should be grown

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2 ways wr users pump and use their w pump directly and use storage putting in a resevoir, pond, or lake for later use

o “storage right”o EX: golf course could have one that directly app’s to grass and another that puts in

lake and uses to w grass so theres a time lago see statute

consumptive use concept of using up w; all w’s taken from source, some of it returns but there’s a loss

hydroelectric – almost no loss bottling plant – all lost w/ GC ex there’d be evaporation from lake which would eff CU SRs – poss (?); have to put in application …

Vested Right pre 1945 right o #’d dif, …

Appropriation Rights o 701(c)

Water Reservation Righto 820-1301 et. seq. (p. 44/45)o a right that the st gets to store w/in the big fed resevoirs (it’s a storage right)o core of engineers resevoirs o board of reconciliation Rs o [diagram]

resevoir diagram showing diff levels (M&I, navigation, w Qual, IRR, recreation – sediment pool)

w out is cleaner w than what flowed in bank degredation w of dif char wants to get back to orig dirtyness M&I = municipal and industrial

o can look at leg and see what w is for o Fed Gov pays for what its resp for and provides storage for other stuff like M&I if state

pays for it o 82-1301: enables state to get SR; right to divert and store w at certain place

KWO gets a wr from DWR KWO sells w to M&I users which pay st $ that st uses to pay off the fed gov’t

o EX: city of lawrence – asked st for w from clinton lake and st makes deal w/ the feds lawrence has K to buy w from state (not a water right)

1301 – series of definitions 1302 – create notion

any w’s in storage space – space is the st’s w director … obtain gives st permission

vol – amount yeild: amount of w that can be produced from so(?) storage space assumes that we can predict drought and duration need enough w in R to last thru the D and will start filling again when it overs [diagram]

o 5 g/day in during drought

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o 15 g evapo 50 g cylinder o 5 g seepage o 5x30 = 150go 150 + 50 = 200 g’s – 20 = 180 g’s o 6g’s a day for a month would totally depleteo 6 g’s / day is the yeild of the R assuming a drought that lasts 30 days

Q: how big is your water right at end of D have to have WR to refill WR > yeild

Attributes of a H20 Righto diversiono benficial use / reasonable use

Federal Resovoirs ~ W reservation rights (99.9% of wr’s are vested of approp in KS) WRR; how big is that WR?

duration of 2% drought varies from resv to resv (statistical construct) 30 day drought; 50 gal to begin; 5g in/day yeild = 6g a day (amount that will leave res just empty at end …) but the have to be able to fill at end of drought so = 56g point: WR is large Peck’s Story: F’s wr was jr to the st even tho he had it before dam was built b/c st’s right dated

back to date of app

Washington Dept. of Ecology v. Grimes ( 1993; p. 34)o Purpose of the case – how to measure a water righto Water Duty – The amount of water you need, for the crop you want to grow, under the

conditions of your climate.o Waste can lead to a decrease in you appropriated water right.

Imperial Irrigation District (p. 41)o State can cut back on a water right if water is being wasted. This not a taking.

o Waste is not a reasonable or a beneficial use of watero See. p. 44 note 1 for a contrary view on this ruling.

Storageo Ponds – water from diffused streamso Lake – Cities may construct with both water and storage rightso Federal Reservoirs – Example Clinton Res.

o Under 1954 Water Supply Act – Feds began to construct major reservoir projects Each project was split into multiple strata for various purposes (bottom to top)

Sediment Control Fish and Wildlife Recreation Water Quality Navigable Water Supply

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The feds pay for the build out for first five purposes, but if States want water supply, the State must contract with the Feds to build the additional volume.

State would then sale the additional water to Municipal and Industrial users.

§701(c) – Domestic uses; The use of water by any person or by a family unit or household for household

purposes, or for the watering of livestock, poultry, farm, and domestic animals used in operating

a farm, and, for the irrigation of lands not exceeding a total of two (2) acres in area for the

growing of gardens, orchards, and lawns.

§707 – Principles Governing (a) Surface or groundwater of the state may be appropriated.

o Such appropriation shall not constitute ownership of such water, ando Appropriation rights shall remain subject to the principle of beneficial use.

(b) Where uses of water different purposes conflict, such uses shall conform to the following order of preference:

o Domestico Municipalo Irrigationo Industrialo Recreational o Water Power

The holder of a water right for a inferior beneficial use of water shall not be deprived of the use of the water either temporarily of permanently as long as such holder is making proper use of it under the terms and conditions of such holder’s water right and the laws of this state, other than through condemnation.

(c) As between persons with appropriation rights, the first in time is the first in right.

o The priority of the appropriation right to use water for any beneficial purpose, except domestic purposes, shall date from the time of the filing of the application with the Chief Engineer.

o The priority of the appropriation right to use water for domestic purposes shall date from the time of filing or from time the user makes actual use for domestic purpose, whichever is earlier.

(d) Any water donated to the state shall be placed in the custodial care of the state or retired at the discretion of the Chief Engineer.

(e) Appropriation rights in excess of the reasonable needs of the appropriators shall not be allowed.

§708b – Application for change in place of use, point of diversion or use Any owner of a water right may change the place of use, the point of diversion or

the use made of the water, without losing priority of right, provided such owner: Apply in writing to the chief engineer for approval of any proposed change;

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See §§ 703, 703a, 703b, and 703c for this section.

Demonstrate to the Chief Engineer that any proposed change is reasonable and will not impair existing rights;

Demonstrate to the Chief Engineer that any proposed change relates to same local supply as the water right relates; and,

Receive the approval of the Chief Engineer with respect to any proposed change.

The Chief Engineer shall approve or reject the application for a change in accordance with the procedure used to approve or deny original applications.

Any person aggrieved by an order or decision by the Chief Engineer relating to an application for change may petition for review – ANY PERSON, not just the Applicant.

The Chief Engineer shall render a decision on such request within 150 days of receiving a complete application.

See p. 29-30 for full statute.

K.A.R. 5-1-1(o) – Beneficial Uses: Domestic Use Stockwatering Municipal Use Irrigation Industrial Uses Recreational Uses Water Power Artificial recharge Hydraulic dredging Contamination Remediation Dewatering Fire Protection Thermal Exchange Sediment control n a reservoir

K.A.R. 5-1-1(qq) – Industrial Use: Use of water in connection with the manufacture, production, transport, or storage

products, or the use of water in connection with providing commercial services.o See page 53 for detailed list.

K.A.R. 5-1-1(rr) – Irrigation Use: Means the use of water for the following:

o Growing of crops;o The watering of gardens, orchards, and lawns exceeding two acres in area;

and,o The watering of golf courses, parks, cemeteries, athletic fields, racetrack

grounds, and similar facilities.

K.A.R. 5-1-1(tt)– Municipal use means the various uses made of water delivered through a common distribution

system operated by any of the following: A municipality A rural water district

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A water district A public wholesale water supply district Any person or entity serving 10 or more hookups for residences or mobile homes Any similar entity distributing water to other water users for various purposes

o Municipal use shall also include the use of water by hotels, restaurants, motels, churches, camps, correctional facilities, education institutions, and similar entities using water that do not qualify for domestic use.

K.A.R. 5-1-1(jjj) – Recreational Use Means a use of water in accordance with a water right that provides entertainment,

enjoyment, relaxation, and fish and wildlife benefits.

§82a-1301 et seq. – Water Storage 1303 – Water Reservation Rights

o Director of Kansas Water Office, upon approval of Kansas Water Authority, has the power to acquire a water reservation right.

o A water reservation right shall be in an amount sufficient to insure a yield of water from the reservoir for beneficial use through a drought having a 2% chance of occurrence in any one year of operation.

o The State’s right is junior to previous rights (both vested and appropriated), but senior to future rights.

1304 – The director, on behalf of the state, shall acquire a water reservation right by filing with the Chief Engineer a written notice.

Water Right to Diffused Surface Water If a pond will hold more than 30 acre feet of water, then the owner may not capture diffused

surface water without the permission of the Chief Engineer. §§ 82a-301 & 304 If a pond holds less than 15 acre feet of water, then it is not a crime to “appropriate the water”

(§82a-728), but the owner would not have a protected water right unless he gets a permit from the Chief Engineer, unless the water is for a domestic use. §82a-705

§82a-717 appears to allow a senior right holder to place a call on a pond owner if the senior can show that the water would have gotten to his diversion point.

For ponds between 15 and 30 acre feet, the owner would have to get a permit from the Chief Engineer unless the water was for domestic purposes. §82a-728

K.A.R 5-5-7 – Waste of Water No right holder shall waste water. Upon finding waste, the Chief Engineer may suspend the use of that water right

until the owner shows to the satisfaction of the Chief that the waste will not longer occur.

K.A.R. 5-5-1 (gggg) – Waste of Water Means any act or omission that causes any of the following:

o Diversion of water not used for a beneficial use or not in connection with a vested right, appropriated right, or permit.

o The unreasonable deterioration of water quality, thereby causing an impairment of a person’s right to use the water.

o The escaping or draining of water intended for irrigation use from the authorized place.

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To figure yield in a drought you need:1. Volume of Res.2. Length of Drought3. Loss to evap and seepage.

o The application of water to an authorized beneficial use in excess of the needs for that use.

§74-2608(c) – Duties of the Kansas Water Office The Kansas Water Office shall develop and maintain guidelines for water

conservation plans and practices. Such guidelines shall:o Not prejudicially or unreasonably affect the public interest;o Be technologically and economically feasible for each water user to

implement;o Be designed to curtail the waste of water;o Consider the use of other water is the use of freshwater is not necessary;o Not require curtailment in water use which will not benefit other water users

or the public benefit;o No result in the unreasonable deterioration of the quality of the waters of the

state;o Consider the reasonable needs of the water user at the time;o Not conflict with the provisions of the Kansas water appropriation act and the

state water planning act;o Be limited to practices of water use efficiency except for drought contingency

plans for municipal users; and,o Take into consideration drought contingency plans for municipal and

industrial users. In developing guidelines, the Office shall consider existing guidelines of

Groundwater Management Districts and the cost to benefit ratio effect of any plan.

K.S.A. §733 – Conservation Plans and Practices The Chief Engineer may require an applicant or a holder of a water right to adopt

and implement a conservation plan and practice. The Chief Engineer may not mandate an adoption or implementation of a plan

unless there are findings that such plan is in the public interest.o See p. 36 for list of examples of who should adopt a plan.

The plan must be in accordance with the plans developed by the Kansas Water Office.

Adoption of a plan shall constitute a condition of the water right or permit to appropriate water for beneficial use.

K.S.A. 1502 – Approval of Transfers (c) To determine whether the benefits of the state for approving the transfer

outweigh the benefits to the stat for not approving the transfer, the hearing officer shall consider all matter pertaining thereto, specifically

o (7) The effectiveness of conservation plans and practices adopted and implemented by the applicant and any other entities to be supplied water by the applicant.

o (8) The conservation plans and practices adopted and implemented by any persons protesting or potentially affected by the proposed transfer.

Plans must be consistent with the one created by the Kansas Water Office.

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§701(f) -- Appropriation Right is a right: To divert from a definite water supply a specific quantity of water at a specific rate

of diversion; Provided such water is available in excess of the requirements of all vested rights

that relate to such supply and all appropriations rights of all earlier date that relate to such supply; and,

To apply such water to a specific beneficial use or uses in preference to all appropriations right of later date.





K.S.A. §708 – Applications for Permits to Appropriate Water (a) Any person may apply for a permit to appropriate water to a beneficial use,

notwithstandingo The application pertains to the use of water by another, or upon or in

connection with the lands of another. Any rights to the beneficial use of water perfected under the

application shall attach to the lands on or in connection with which the water is used;

Additionally, the water will remain subject to the control the land owner, not necessarily the applicant.

K.S.A. §709 – Contents of Water Right Application An application to the Chief Engineer is needed for any water right, except a

domestic water right, but a person may still apply for a domestic water right.o The application must include:

The name and post-office address of the applicant The source from which the appropriation shall be made; The maximum rate at which water is to be diverted or used and the

total annual quantity of water sought; The location of the works or proposed works for the diversion and use

of the water; The estimated time for the completion of any proposed works; The time of the first actual application of water for beneficial use or the

estimated time of such application; If for irrigation use, a description of the land to be irrigated by

designating the number of irrigable acres in 40 acre tracts; If for municipal supply, it shall include the present population to be

served and the estimated future requirements; Any additional factors which may be required by the Chief Engineer.

Such application shall be filed and approved before any work is started for diversions, storage, and use of water.

K.S.A. §718 – Abandonment of Water Rights

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(a) All appropriations of water must be for some beneficial purposeo Every water right of every kind shall be deemed abandoned and shall

terminate when without due and sufficient cause no law, beneficial use is made of the water under the water right for five successive years.

o Before any water right is declared abandoned, the Chief Engineer shall conduct a hearing;

The Chief Engineer must give the right holder at least 30 day notice; The Chief’s findings are reviewable – very hard to overcome though. Verified Report of the Chief or his authorized representative is consider

prima facie evidence of abandonment of a water right. (b) When no lawful, beneficial use of water under water has been reported for three

successive years, The Chief Engineer shall notify the right holder by certified mail that:

o No lawful, beneficial use of the water has been reported for three successive years;

o In no lawful or beneficial use is made of the water for five years, the right may be terminated;

o The right will not be terminated if the user shows that for one or more of the five consecutive years the beneficial use of the water was prevented or made unnecessary by circumstances that are due and sufficient cause for nonuse, which circumstances shall be included in the notice.

(c) See p. 33

K.S.A. §726 – Diversion and Transportation of Water for use in a Another State Any person seeking to divert Kansas water and use it in another state must get

approval from the Chief Engineer. Chief Engineer may modify or terminate right if needed to protect the State of

Kansas. The Chief Engineer can approve this type of application only after meeting certain

criteria, generally legal issues that he must work with the Attorney General to determine.

o See p. 35 part (b) and (c).

C. Priority

Key Ptso Date of Seniority is based on the date of original appropriation or permit date.o California Doctrine

o Recognizes both riparian and appropriated rightso Colorado Doctrine

o Appropriation of water is the only way to get a water righto Truly first in time is first in right.

Conflict Situation (& WRR) [diagram] if not enough w in stream and 1 calls chief engineer ~ if shutting off 2 would produce w

downstrean then it will be shut off (even if w is lost in process of getting it to #1) 1 st in time 1 st in right. (Cocrhan case point)

but lake in between ~ bypass w down to #1 (have to do if can, if to do so would get 1 w)

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all 1 is entitled to is w in the S, so if stream is dry but res is full 1 gets nothing 2 is above 3; 3 can store w above 4 point : WRR fits into priority ordering b/c WR is so big and you have a jr downstream WR ~ in drought 706(a) allows CE to make regs p 70 n 5

o calling the river (making a call or the r)o sr uses trying to shut the jro a fuedal call when shutting jr doesn’t improve sro CE has to make sure wouldn’t be a fuedal call, etc ~> not a quick process so your plants

are prob screwed anywayo (oth st’s like Co have > eff systems for this)

State Ex Rel. Cary v. Cochran (Ne, 1940; p. 64)o Junior water right holder claimed it was wasteful to send water through porous soil to Senior

right holder far down stream.o Court ruled that potential waste is no excuse for upsetting senior/junior relationship.

o If there is a chance that the water will reach the senior, the water must go to the senior.

FITFIR if shutting down would get some reasonalbe amount then upstream jr will be shut down if CE doesn’t do it ~> writ of mandamous

p 43 n 1o enterprise irrigation districto (duty = optim q w you need …)o underlying prin of mstrn (?) w law – person had vested WR, st came in and siad didn’t

need that much tried to cut, crt: taking that req’s compensation enterprise irrigation case : (modifies that rule)

o complaint that big irrigation districts were wasting watero (tail w = … huge amount lost b/c of evapo Q: can right be restricted by amount of proven wasteo court says yes o imp impatus to st’s tryin to enf wst rules

def of waste of w ~ gggg (p 57) other regs give CE right to reduce(?) or suspend b/c of waste but w is hard to define

Conservation Plans

Phillips v. Gardner (OR, 1970; p. 73)o Junior user in time of drought argued that he should have priority over senior irrigation user

because his use, domestic, had higher preference in the constitution.o Court ruled that priority trumps preference.o KSA 82a-707(b) – Priority trumps preference in Kansas.

big irrigation vs little domestic can #2 dom user make a call to prevent dying from thirst… [diagram] follow statute ~ stat was FITFIR so no go for dom user

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in KS: domestic rights are the only ones that are stat’y defined 82a-728 prority for dom use – don’t have to worry re being charged with crime don’t need a permit if dom user – date from permit date or date of 1st use reason to get one anyway - documentation 707: pref order for rights w/ same date (unique sit - )

§706 – Duties of the Chief Engineer The Chief Engineer shall enforce and administer the laws of this state pertaining to

the beneficial use of water and shall control, conserve, regulate, allot and aid in the distribution of the water resources of Kansas for the benefits and beneficial uses of all of its inhabitants in accordance with the rights of priority of appropriation.

§706b – Diversion of Water Prohibited when Unlawful Acts First in time is first in right. Chief Engineer is responsible for enforcing these rights.

§706d – Duties of Attorney General Chief Engineer can request the AG to bring suit in the name of Kansas, in courts of

competent jurisdiction to enjoin the unlawful appropriation, use of waters of the state, and waste or loss thereof.

§711 – Permits to Appropriate Water (a) If a proposed use neither impairs a use under an existing water right or

unreasonably affects the public interest, the Chief Engineer shall approve all applications that are put to beneficial use.

o The Chief may reject by requiring modifications that conform to the public interest.

(b) In determining whether a propose use unreasonably affects the public interest, the Chief Engineer shall take the following into consideration:

o Established minimum desirable streamflow requirements;o The area, safe yield and recharge rate of the appropriate water supply;o The priority of existing claims of all persons to use the water of the

appropriate water supply;o The amount of each claim to use water from the appropriate water supply;

and,o All other matters pertaining to such questions – This to be read very broadly.

(c) Impairment shall include rising and lowering of static water level or the increase or decrease of streamflow or the unreasonable deterioration of the water quality at the water user’s point of diversion beyond reasonable economic limit.

o Any person aggrieved by any order or decision by the Chief Engineer relating to THAT PERSON’S application to appropriate water may petition for review of the decision.

§711a – Express Conditions of Appropriations It shall be an express condition of each appropriation of surface or groundwater that

the right of the appropriator shall relate to a specific quantity of water and that such right must allow for a reasonable raising or lowering of the static water level and for the reasonable increase or decrease of the streamflow at the appropriators point of diversion.

o Provided that seniors are always protected. First in time is first in right.

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K.A.R. 5-4-1 – Distribution of Water Between Users Where a Prior Right is Being Imparied.

When a complaint is received that a prior right to the use of water is being impaired, the following procedure shall be followed.

o The complaint shall be made to the Chief Engineer or his representative. A complaint may be accepted verbally, in person or by telephone. No action shall be taken by the agency until the compliant is confirmed in writing.

o An investigation of the physical conditions involved shall be made by the Chief Engineer or his representative.

o A written report of the investigation shall be prepared and a copy given to the complainant. If the investigation shows there is no basis for further action by the division the complainant shall be so advised

o The complainant shall make a written request to secure water to satisfy his prior right

o The Chief Engineer or his representative shall give a written legal notice and directive to other water users whose use of water must be regulated to secure water to satisfy the complainant’s prior right.

The request shall be made on a form proscribed by the Division. All water delivered to the point of diversion shall be used for a beneficial purpose and will count against the complainant’s authorized quantity.

When the needed quantity of water is delivered or the user discontinues his use, the regulated users will be informed that they may begin to divert water again.

If the available water supply should increase, the Chief or his rep may allow some or all users to resume use depending on supply.

§701(c) – Domestic uses; The use of water by any person or by a family unit or household for household

purposes, or for the watering of livestock, poultry, farm, and domestic animals used in operating

a farm, and, for the irrigation of lands not exceeding a total of two (2) acres in area for the

growing of gardens, orchards, and lawns.

§705 – Acquisition of Appropriation Right other than Domestic No person shall have the power or authority to acquire an appropriation right to the

use of water for other than a domestic use without first obtaining the approval of the Chief Engineer.

No water rights of any kind may be acquired solely by adverse use, adverse possession or by estoppel.

§707(b) – Where uses of water different purposes conflict, such uses shall conform to the following order of preference:

o Domestico Municipalo Irrigationo Industrialo Recreational o Water Power

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The holder of a water right for a inferior beneficial use of water shall not be deprived of the use of the water either temporarily of permanently as long as such holder is making proper use of it under the terms and conditions of such holder’s water right and the laws of this state, other than through condemnation.

§707(c) -- As between persons with appropriation rights, the first in time is the first in right.

o The priority of the appropriation right to use water for any beneficial purpose, except domestic purposes, shall date from the time of the filing of the application with the Chief Engineer.

o The priority of the appropriation right to use water for domestic purposes shall date from the time of filing or from time the user makes actual use for domestic purpose, whichever is earlier.

§704a—Determination of Vested Rights; Procedure See p. 26 – statute is no longer applicable as vested rights have been determined.

§701(d) – Vested Right Means the right of a person under common law or statutory claim to continue to the

use of water having actually been applied to beneficial use on or before June 28, 1945, to the extent of the maximum quantity and rate of diversion for the beneficial use.

Prior to the enactment of the Kansas Water Act, Kansas was a riparian state. Vested rights are what is left from that system.

§701(f) – Appropriation Right A right acquired under the Kansas Water Appropriation Act, post 1945. It is a right that allows a holder to divert a specific quantity of water, at a specific

rate, provided such water is available in excess of both vested rights and senior appropriated rights, and it is going to be applied to a beneficial purpose.

§716 – Common Law Claimants Vested rights are senior to appropriate rights Appropriated rights are senior to common law claimants without vested rights First in time is first in right.

o A senior right holder can seek compensation from and enjoin a junior from using water unlawfully.

§728 – Unlawful Acts It is unlawful to use water out of priority or without a vested right, appropriated

right, or permit.o The violation is a class C misdemeanor.o Each day the violation occurs after notice is viewed as a separate offense.

§707 – Principles Governing Appropriations See above, section B

K.A.R. 5-3-3 – Storage of Water for Domestic Use

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A person entitled to use water for beneficial use may collect water so long as it is consistent with reasonable storage and conservation practices.

A reasonable quantity of stored water for a domestic use shall be a quantity sufficient to satisfy the current year and the two succeeding years.

D. Waters Subject to Appropriation

phreatophytes plants along river that take a lot of water (cotton wood, salt cetar) evapotransortation (well-plant) State v. Hiber what w is appropriable RJA competition w/ plants Coffin riprarian v. appropriation Salt W appertenance of a w right to adjacent land

State v. Hiber (Wy, 1935; p. 84)o Illustrates what is water subject to appropriation. In this case Wyoming failed to show the

dammed area on Hiber’s land was a stream.o In Kansas all water is for the use of the public and under the authority for appropriation of the

state.

w rt holder trying to get an injunction against Hiber who it claimed was impeading flow crt had to construe the word stream b/c of cl. in Wyo. st constitution decided Hiber hadnt taken w out of the stream have to check law of each st to see what w the st purports to control here st didn’t have power over diffuse surface w which wasn’t yet considered part of stream so

H could take w w/o permit

KS doesn’t have a constit provision like that 702: “all” water; 6/28/45 st took all water (purports to control) 703: all w w/in st may be appropriated 707: surace and ground w may be appropriated see ref def of surface water p 84: Peck’s memo re Hiber case issue in KS client Q’s: call DWR L’s to ask what they think w/o divulging id or reason for asking

Weather Modificiation: create rain, prevent hail must be licensed under KS law to be a clouder seeder and get a permit before every instance of

seeding potential legal issues: subsequent flood damage (proof issues), impairment, pollution, wr for

percipitation in a cloud, liability for not producing rain

RJA Inc. v. Water Users Assn (Co. 1984; p. 90)o RJA proposed to remove all peat moss to increase available water.

o Developed Water – New water in the basin from an outside sourceo Phreatopyte – Water loving plants; suck water up and then send it into the atmosphere.

o State denies permit. Claiming the water is not new or developed water as it as already been a part of the original watercourse. Court agrees. peet moss taken out by farmer who then cliams he developed w

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if develop w – free of appropriation system crt says: nothing in statute that says by removing plants you can get w rights outside system

(cite NM case re preatophytes) also potentially a bigger enviornmental issue are re dif: time order: in one sit ppl were there first, other not didn’t matter

epiphytes plants that live on tress (florida ~ orchids) (attached to – plant)o don’t live off tree, take moisture from air

scenic rivers act o sts or feds enact stat’s removing w from systemo compare to early case in which st’s took rights o takings issue : when prior rights are impaired o KS approach : MDS (minimum desirable stream flow) 703; 703a

puming from alluvial GWs was effecting stream flow responded w/ MDS leg CE may designate streams (see table p. 26) allowed prior rights to stay but didn’t have streams picked yet so reserved 4

year period during which any rights aquired would be usurped

§703 – Water may be Appropriated subject to Vested Rights Except as provided in 703a and subject to vested rights; All waters within the state may e appropriated for beneficial use as provided. Nothing contained in this act shall impair the vested right of any person except for

non use.

§703a -- Minimum Streamflow; Duties of the Chief Engineer Whenever the legislature enacts legislation establishing a minimum streamflow for

any watercourse in the state. The Chief Engineer shall withhold from appropriation that amount of water deemed

necessary to establish and maintain for the identified watercourse the desired minimum streamflow.

§703b -- Minimum Desirable Streamflow; Cond. Of App. Right. All appropriation rights, except for domestic purposes, applied for after 4/12/1984,

are subject to minimum desirable streamflows established pursuant to law on or before 7/01/1990.

All vested rights, water appropriation rights and applications for permits to appropriate water having a priority date on or before 4/12/1984, shall not be subject to any minimum desirable streamflow requirements established pursuant to law.

§703c – Kansas Minimum streamflows, see supp. p. 25

E. Geographical Restrictions to Use

Coffin v. Left Hand Ditch Co. (Co, 1882; p.97) Appropriated Water is diverted into a different basin. D. claims deprivation by way of inter-basin transfer.

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1. Inter-basin transfers are not allowed in riparian states.

2. California has a basin of origin protection statute.

Court: So long as the water is being put to a beneficial use, the “locus of water use” is not important in Prior Appropriation state.

Co adopts pure prior appropriation ~ “Colo. Doctrine” more imp: can you take w out of basin basin of origin protection [diagram] interbasin transfer DS arg: cant take out of basin (late to class) absent leg to contrary you can (some st’s have basin protection stat’s) lows isnt imp, but you should check your statute (?)

in KS : could app to CE who has certain consideration under 711o nothing expressly prohibiting (cost might)o only real protection of basin of origin stat is compact re Neb and Kano existing (@ time of Pecks research on issue) basin diversions in KS (p 104) – not very

imp inherent problem w/ inter basin transfers 100% consumptive

Water Transfer Act 82a-1501 et seq 82a ~ about water 1501 ~ not part of appropriation act Peck rewrote this in the 90’s transfer ~> connontes change of ownership but here just means movement 2000 acre feet > 35 mile ~ large amount panel ~> 3 person hearing panel party ~> disting btwn active participants and ppl from community 1502(a) basin of origin protection

o “in the area from which w is to be taken”o protects basin to some extent but stnd is st wide benefits from approving vs not

(b) xfer has to comply w/ other appropriation laws (c) specific benefit considerations

o (3) econ, enviornmental, pub health, & welfare ….o econ impact that has a ripple effect throuout the comm (3P_)

1503 file app w/ CEo hearing officer makes a dec and sends it up to the panel to be reviewed

1507 shouldn’t be construed as exemption form …o have to look at in tandem w/ appropriation act

only attempt under this act: JoCo w dist 1o underground tunnel from missura (w left st anyway ~ but still had hard time getting

approval)o huge dampening effect

should we try to protect basin of origin? see handout

Kansas Water Transfer Act (p. 45-48) Water Transfer means the diversion and transportation of water in a quantity of 2,000 acre feet

or more per year for beneficial use at a point of use outside 35 mile radius from the point of diversion of such water.

All proposed transfers must come before the water transfer hearing board. The board is made up the following:

o Chief Engineero Director of the Kansas Water Office

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o Secretary of the Department of Health and Environment The Panel selects a hearing officer to conduct the hearing. The hearing officer shall be an

independent person knowledgeable in water law, water issues, and hearing procedures. No person shall make a water transfer in Kansas unless and until the transfer is approved. No water transfer shall be approved which would reduce the amount of water required to meet

the present or any reasonably foreseeable future beneficial use of water by present or future users in the area from which the water is to be taken for transfer unless:

o The panel determines the benefits to the state for approving the transfer outweigh the benefits to the state for not approving the transfer.

o The Chief Engineer recommends to the panel and the panel concurs that an emergency exists which affects the public health, safety or welfare.

o The Governor has declared that an emergency exists which affects the public health, safety or welfare.

Whenever an emergency exists, a water transfer may be approved by the panel on a temporary basis for a period of time not to exceed one year under rules and regulations adopted by the Chief Engineer. The emergency approval shall be subject to the terms, conditions and limitations specified by the panel.

F. Appurtenance

Salt River Valley v. Kovacovich (Az, 1966; p. 103) *good law in Kansas User had water right for Parcel A. He adopted more efficient watering practice and saved water.

He then wanted use excess water on Parcel B. Court rejected request. A water right holder can not increase the amount of land used under a

water right.o Kansas Chief Engineer says increase in land causes an increase in consumptive use.o Can apply under §708(b) for change in place of use, pt of diversion, or increase in land,

but will likely require new permit, which will have junior priority.

cant conserve w and app dif to addnl land in KS : cant change: (1) place of use; (2) P.O.D.; or type of use w/o permission of CE 708(b) arg: diversion will some how increase consumptive unse WR is appurtenant to the land (added land is unlawful use) policy: predictability in public records 708a: anyone can app for permit but WR is app to land





K.S.A. §708 – Applications for Permits to Appropriate Water

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The Water Transfer Act has only been used once – it is a very cumbersome process.

§82a-1502(c) provides the factors the hearing officer shall use to determine if the benefits of approval outweigh the benefits of not approving the transfer.

(a) Any person may apply for a permit to appropriate water to a beneficial use, notwithstanding

o The application pertains to the use of water by another, or upon or in connection with the lands of another.

Any rights to the beneficial use of water perfected under the application shall attach to the lands on or in connection with which the water is used;

Additionally, the water will remain subject to the control the land owner, not necessarily the applicant.

G. Protection of Means of Diversion

State Ex Rel. Crowley v. District Court (Mt, 1939; p. 107) Downstream Senior user alleges that upstream junior has illegally impounded water such that

senior can’t get his water out of the watercourse. Junior user argues that there is water, but senior can’t get it because his equipment is

inadequate. Court rules for senior because junior takes his rights on notice of senior’s system.

WR for 100 but MOD req’s 1000 in stream upstream jr user (1) jr appropriators have to look around see whats going on & … to superior … (2) but changes; stuff re inefficent systems; gray area (screwy)





o Established minimum desirable streamflow requirements;o The area, safe yield and recharge rate of the appropriate water supply;o The priority of existing claims of all persons to use the water of the





3. Regulations

A. Permit System

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1945 Kansas Water Appropriation Act:1. Vested Rights – Water rights used before 1945.2. Appropriated Rights – Water rights after 1945.

Wyoming Hereford Ranch v. Hammond Packing (1925; p. 122) Vested rights (prior to permit system) allowed, but once permit system is created and

implemented a person must go through the process to get a water right.

re guy developing permit system (revolutionary at the time) rec’d pre permit rights this case … legitamacy of P.A. permit system

o valido cant claim to have a right post PA w/o permit

KS – Hist. Development of our Act: 1945: adopted PA rec’d vested rights uses before June 27, 1945 were allowed to app for right ~ had to prove you were using 1861: prior system: stream adjacent riprarian; underground w (communistic taking) could still use just didn’t get wr and could be enjoined 1978: made it a crime to pump water had a year or so to cliam VRs (cant now) next 4 cases – look at type of stuff that comes up in permit app

K.A.R. 5-3-4a – Hearing Prior to Approval of Applicationo A hearing may be held before the chief engineer on application to appropriate water

for beneficial use prior to approval;o When the Chief Engineer finds it to be in the public interest to hold a hearing; or,o A hearing has been requested by a person who shows to the satisfaction of the

Chief Engineer that approval of the application may cause impairment of senior water rights permit.





o Established minimum desirable streamflow requirements;

o The area, safe yield and recharge rate of the appropriate water supply;o The priority of existing claims of all persons to use the water of the





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§711a – Express Conditions of Appropriations It shall be an express condition of each appropriation of surface or groundwater that

the right of the appropriator shall relate to a specific quantity of water and that such right must allow for a reasonable raising or lowering of the static water level and for the reasonable increase or decrease of the streamflow at the appropriators point of diversion.

o Provided that seniors are always protected. First in time is first in right.

§712 – Notice of Approval or Disapproval of Application The chief engineer shall notify the applicant of the approval or disapproval of the

application. Upon approval, the chief engineer shall authorize the applicant to proceed with the

construction of the proposed diversion works and to proceed with all steps necessary for the application of the water to the approved and proposed beneficial use and otherwise perfect his application.

The chief engineer may approve smaller amount than requested and may approve an application upon such terms and conditions to protect the public interest.

Approval constitutes a permit to proceed with construction work. No common law claimant without a vested right, or other person without a vested right, a prior appropriation right, or an earlier permit shall prevent, restrain, or enjoin an applicant from proceeding with construction or diminishing the water supply in accordance with the terms and conditions of the permit.

B. Availability of Water

Lower Colorado River Authority v. Texas Department of Water Resources (p.127) Water District applies to impound 500,000 acre feet. Key question: what is “unappropriated water”?

o Amount actually appropriated; or,o Amount actually being used

Texas DWR used the second option.o Court overruled and said that option #1 is the true way to determine unappropriated

water. Q: is there unappropriated water available?

o look at prior apps, permits, certs, abandoned certs (subtracted)o arg: not fair methodology ~ looking at max use #s on paper records fails to account for a

lot o SC have to assume max and go w/ public records (even tho not nec valid)

KS : Two Mile Radius Testo formula and Q ~ if you can come w/in get permit

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Types of Water Rights in Kansas1. Vested Rights2. Certified Filings – existing applications3. Permits to Appropriate4. Certificates of Adjudication – perfected permit

1 year to build diversion5 years to perfect right

20 years for municipality

C. Public Interest

Young and Norton v. Hinderlider (New Mexico, 1910; p. 135) Two parties applied for permits to use the same source. One cost more and would cover more

ground. The other was a proposal from a local. The State approved the local proposal. Court ruled that the State needed to define what the public interest is.o 2 competing applicantso involves w speculation issueo considerations in notion of pub lint o econ considerations, etc. that court looked at ~ jr permit granted over senoir applicanto (got denied)

Shokal v. Dunn (Idaho, 1985; p. 140) Local interest v. other statewide interests. Externalities of project; the trust cost of the project. Court looked at the Alaska Public Interest doctrine.o local public interet (looked at quality effect …)

KAR 5-3-9 (H/O)o overall direction: WRs/w userso nothing re geo, time (generational) limited scopeo should CE in granting WRs consider broad range of externalities?o 711(a), (b), (c) ~ water focus (another matters but not specified)

application for permits in a PA system ~ started in Wy adopted in KS 50 years later saw how systems app’d in TX case: app ammnt being used according to rec’s finality of the desigh don’t need final blue prints (prob hold true in most sts) need to know roughly what doing hearing req’s typically not a big deal but when it is CE will be asked to hold one 5-3-4a: fairly limited to the w issue (p 57) appeals who are the interested p’s? applicant and anyone who objects but in KS under 711 only the applicant can appeal 708(b)(a) any person aggreived may petition (currently at issue in Kan. App. ~ Cochran case) arg’n that its unconstitutional under E.P. b/c the difference in comparable clauses

United Plainsmen v. North Dakota Water Commission (ND, 1976; p. 151) State is required to plan for the future. P: non-profit corp brought an action against CE to enjoin 2 args: (1) had to be a plan for development and conservation of st’s resources; (2) public trust

doctrine SC: planning stat had lim’n lang; sup’d to plan but doesn’t stop them from getting permit Public Trust Doctrine st’s cant grant permits that violate (> on this later: national autobahn

case) o states hold w in trust for ppls, which at a min req’s: ….

Notion of W Planning in Kansas : 82a-901 et seq ~ Water Planning Act water office (KWO)

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hist: 50’s KS w resource board (KWRB) 927 LR goals (from the 60s) 80s: abolished KWRB & estb’d KWO – Dir, and KWA (83 Joe Harkins) sec 906 : key to our dynamic process + Peck’s key change in the stat

o prior version was inc’n w plan by ref, tech making it lawo amended so now WO promulgates plans and submits to the leg who can then do what it

want o 2 n p 155 gives KS stat’s as an example

yest: looking for indication of public pol in stat ~ 711 ~ pertains mostly to other w stuff but has a catchall

708b app’s to changes, but refs to 711 so same standards app for creating new rights and changing

KP & L: [diagram] expansion of Jefferies energy center App: 40K a.f./yr; 5K gpm later reduced to 26.5K a.f./yr; 37.5 gpm CE decided to hold hearing parties testifying:

o topekao lawrenceo KS fish and game comm (gov ent)o KS canoe ass’n (priv ent)o Wilderness Supply Storeo JoCo WD #1o Parie Backpackerso Bowerstock Mills and Power Coo KPL (applicant)

cant just say every drop taken out upstream … depends on the flow CE: 15K/year when flows btwn 900-5000; 11.58/yr > 5000 cfs *** other i’s can affect the perm and CE may make perm conting on protecting others wrs

aside: Peck’s debate re future of WR’s in Kan doesn’t see a constitutional replacement

State Water Resources Planning Acto The people of the state can best achieve the proper utilization and control of the water

resources of the state through comprehensive planning which coordinates and provides guidance for the management, conservation, and development of the state’s water resources.

o The Kansas Water Officeshall develop the plan and submit it annually to the Governor and the Legislature.

o Long Range Goalso The development of sufficient supplies of water for beneficial purposeso Reduction in damaging floods and losses resulting from floods

o Policies to Achieve Long Range Goalso The utilization of nonstructural methods and structural measures for the reduction of

flood damage.o The design of storage structures to protect urban areas from 50 year floods.o The development of adequate water storage to meet present and future needs.

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o The development of groundwater recharge projects.

4. Loss

3 Ways to Loss :o (1) abandonmento (2) forfietureo (3) AP

w/ land don’t loss it if you don’t use it nec w/ w use it or lose it

o does it encourage conservation? (critiscism)

East Twin Lakes Ditches v. Board of Comm (2003; p.176) Senior right was unused for 26 years due to attempted sale, mechanical problems, and other

issues. Court ruled no abandonment because no intent to abandon

o Abandonment requires intent. have a ditch w/ w right attached to prop being sold arg that its been abandonded issue: was there an abandonment when w wasn’t used for 30 years while ower was trying to sell

o long period of non-use gives rise to a presumption of abandonmento A req’s intent on owners behalf to Ao (2 elements)

intent is what distinguishes abandonment and forfieture burden to come forward w/ objective evidence that didn’t int to A co: considered 7 factors

o attempted to repairo filed doc’s o never of A listo leased for some time o financial obstacles

(in some states you can loss your WR via AP)

Rencken v. Young (OR, 1985; p.184) Water right is forfeited by failure to use for 5 years Requires no intent; only non-use & time lapse

o KSA 82a-718 is likely a forfeiture statute. didn’t use the w for 4 years trys to salvage in 5th year (no use in 5th year til after irrigation season issues:

o does a 5 year period app to irrigation seasons or calender years (didn’t have to answer b/c was outside period permit allowed)

o who has BOP (state)

In Kansas: (3) AP: 82A-705 AP isnt a means of obtaining a WR under 728 it’s a crime (non-dom use) no right, injunction, fine A or F ? see Peck and Connie’s article

28

args for A:o 82a-718: title “abandonment …”o couple w/ 42-308 (have to look at 42 and 82 when have a w issue in KS ~ older and not

completely reapead stat re w)o 1945 stat says abandonment, 1880s stat say F o as a matter of stat constructn should app the later

718(a) verified report of CE – p.f. evid due and sufficient cause (5-7-1) p 61 gives valid uses for non-use so you don’t loss CE doesn’t care re intent

Hawely (06) (see p. 103)Frick (08)Otto. CoPolo guy - OC + PG – NiGGPritner

Hawley o construed state as F even tho wasn’t really issue in case (in dicta)o means intent isnt admissible/relevant o tho may come thru in one of the factors

Frick BOPo equity adhores a forfieture (maxium of equity)o when st trys to forfet equity abhores it so have to keep BOP on st side (Pecks arg)o case said burden does shift to the land owner (you have to come forward w/ E or you

lose) 4 Examples :

o Otto Co Case F switched to wheat which req’d no irr arg’d excuse b/c req’d less mositure DC disagreed

o Nigg farmer moved the well w/o permission 708b ~ cant change POD w/o permission no prd of non use but focused on “illegal” crt: non-use = non-use

Turner v. Bassett (NM, 2003; p. 192) Water rights can not be lost to adverse possession in prior appropriation states.

o KSA 82a-705 does not allow prescriptive rights.

K.S.A. §718 – Abandonment of Water Rights (a) All appropriations of water must be for some beneficial purpose

o Every water right of every kind shall be deemed abandoned and shall terminate when without due and sufficient cause no law, beneficial use is made of the water under the water right for five successive years.

o Before any water right is declared abandoned, the Chief Engineer shall conduct a hearing;

The Chief Engineer must give the right holder at least 30 day notice; The Chief’s findings are reviewable – very hard to overcome though.

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Verified Report of the Chief or his authorized representative is consider prima facie evidence of abandonment of a water right.

(b) When no lawful, beneficial use of water under water has been reported for three successive years, The Chief Engineer shall notify the right holder by certified mail that:

o No lawful, beneficial use of the water has been reported for three successive years;

o In no lawful or beneficial use is made of the water for five years, the right may be terminated;

o The right will not be terminated if the user shows that for one or more of the five consecutive years the beneficial use of the water was prevented or made unnecessary by circumstances that are due and sufficient cause for nonuse, which circumstances shall be included in the notice.

(c) See p. 33

§707(e) – Principle Governing Appropriationso Appropriations rights in excess of the reasonable needs of the appropriators shall

not be allowed.

K.A.R. 5-7-1 – Due and Sufficient Cause for Nonuseo P. 60 has all possible causes; Mental incapacity of the appropriator is considered

one.o The water right owner shall have the burden of showing that there have not been

fiver or more successive years of nonuse without due and sufficient cause.

K.A.R. 5-7-2 – Waiver of Hearingo The owner of a water right may waive any hearing on the questions of

abandonment and termination of such right by letter to the Chief Engineer requesting that it be terminated and its priority forfeited.

K.A.R. 5-7-4 – Water Rights Conservation Programo Enrollment in the water rights conservation program approved by the chief

engineer, and continued compliance with the program shall constitute due and sufficient cause for nonuse.

K.A.R. 5-7-4a – Conservation Reserve Programo See p. 61

Kansas Constitutional Sections

Article 11 – Flood Control; Conservation or Development of Water Resourceso (2) The State of Kansas may be a party to flood control works and works for for the

conservation or development of water resources.

Article 12 – Cities’ Power of Home Ruleo Cities are hereby empowered to determine their local affairs and government; thus

they have the power of eminent domain in condemning water rights.

City of Thornton v. Farmers Reservoir and Irrigation (p. 213) City of Thorton uses eminent domain to take municipal water. It had the power as a home rule city.

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§12-694 – Eminent Domaino The governing body of any city may establish, make and regulate the channels of

watercourse in their city.o City may acquire, own and hold by gift, purchase or by the exercise of the power of

eminent domain, within or without the city limits, within five (5) miles or within twenty (20) miles, where it is necessary in order to obtain an adequate water supply for the city.

o The city must pay all damages for taken or injured in the process.

§12-809 – Damming of River or Condemnation of Land and Water for Waterworkso The governing body of any city shall have power and authority to dam any river not

navigable, to condemn and appropriate in the name and for the use of the city any such land or lands located in or out of the corporate limits thereof, as may be necessary for the construction and operation of waterworks, and to condemn, appropriate and diver the water from such river,

o The works will be paid for by bonds.

Professor Peck’s theory of §707(b) Condemnation can only occur by a entity who condemns a lower preference on the list.

o assnmt: read the Approp Act thru before you drink a beero illegal use ≠ no useo ~ via adimn opo CRP ~ Conservation Reserve Programo case where guy supposedly voluntarly gave up WR ( > 20 years since use)o 2 issues:

wheter guy had given up vol’y (both guy who took and wrote were dead); also were beyond SOL

o went to KSC but Dave Pope settled so as to keep it from going on rec making DWR look bado viability annual use report

5. Transfer

transfer ≠ change change of one of 3 attributes w/ perm of CE under 708b

o type of useo place of useo point of diversion

701g WR – real prop right … sell land w/o change you have a transfer change doesn’t nec come with look at def of muni use ~ central distribution ex: from irr to city use

Farmers High Line v. City of Golden (1954; p. 200) City purchases irrigation rights and seeks transfer to Municipal and Industrial use.

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Court denied full transfer and reduced amount to protect other appropriatorso Transfers are only allowed if they do not affect other appropriators – even junior users.

changing POD, POV, and TOU #1 WRs are xferable jr usersissue general vs specif inj wr’s are xferable as long as you don’t injure someone else p 200 sale that results in … rduc avlb … if sr … if jr … freq ref’d to as the injury rule results in ROT that transforer can only take amount counsumed by orig use consumptive use - % taken out permenantly

hydropower 100% used and 100% returned cant sell it to anyone else w/ CU 100% user cld xfer the whole thing irrigation right sales > common (what will leave jr right owner in same position)

Dodge City Ex: 200% of 40% of 80 ??? if 80 is amount consumed, DC is only getting 80 city use will rtrn some somewhere but the prob is it wont be same place D will want to pay for 80 but F will be selling it all

708b ***FH (?) WR has same attribute in hands of the buyer ~ date doesn’t change 5-5-11 reg that deals w/ xfer of irr rights ~> NIR ~> givers assumed consumptive use depending

on location criticial thing in a neg _ is how you can effectively xfer any owner can change, …, w/ prior position (708b) 708a anybody can app for a WR on any one elses land but it becomes appurtant to … hypos p. 87 imp : owner must app for changes, have to make sure purported owner is actual owner (99)? convey w/ deed

o does WR need to be spelt out in deed ~ theoretically don’t need to even specify them but should

change POU; may have to change POD if guy no longer (wants all?) of land will make it closer to an may effect other wells … who might object buy (seek?) w/ easment for pipe need to make K’s conditional on CE approving change reservation in deed

Transfervoluntaryinvoluntary –

condemnation

… vol xfers cont’d: (Reuse Overview/Review) in KS and the west virtually no new WR poss’s so people must aquire thru xfer

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signing deeds xfers WR as (for cahnges need to go thru other process) real prop right (treated as) so SOF app’s, use deed to xfer, wld have mrg not A9 SI transferee gets what transforeror had transfer v. change Water Transfer Act (82a-1501) has special meaning really talking re movin w long distances Farmers Highland: no injury rule look at before and after and proove that wont injure jr user can enter K to divide WR, division will recognize (can be done but is complicated)

P. 101: (1) Dry-up covenant.

o ex: farmer xfer WR to city; keeps land o DUC: protects city by saying land cant be used to app for any more WRs

(2) Easments for the well site. o think about & put in K & price

(3) Seller’s retaining right to use water for domestic use.o consider retaining right to use water for domestic use

(4) Judgement liens on water rights (divorce, etc.) o ~ real prop of DR, so JL wld be against land and WRo ex: farmer w/ alimony obligation ~ have to get release from all JLs by wife

(5) Title insurance versus abstract of title. o (could also go to crt hs and rev rec’s self)o for WRs cant get title ins so have use abstract or rec’s office

(6) Validity of the water right. o (quality and title)o 2 aspects to a sale (always): (1) is the WR good; (2) is the ttl to the land to which w’

appertant any goodo to check validity: contact DWR & get copy of all doc’s it has rel’d to that WRo (look for: app, perm, apps to change, change orders, certificate, decleration of

abandonment) (7) Water versus water rights.

o WR ~ right to use w at a certain place for a certain period is perpituityo W ~ is a good (UCC!)

(8) Division of water rights.

Involuntary Transfers condemnation/eminent domain gen pwr of govt to take prop away againt our will st govt has inherent power of condemnation (process of exerting ED pwr) cert govt entities will also have pwr but must confirm that they do and that all strictures of stat

are followed 1st Q : does condeming party have power to do that (must have been del’s to it by st ~ check

stat’s) KS Const Art 12 sec 5 ~> Powers of Home Rule

o (b) empowers cities to dtrm local affairs but doesn’t say they have condom rights 42-309 rights subject to ED (1880 stat – unclear what its even talking re) 42-315 right of use of w subj to ED

o 309+415 basically say w is subj to C 12-694: allows cities to go up to 20 miles outside boundary to condm WR 12-809: can condem out of corp lims

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o 694+809 give cities seemingly broad pwr 82a-701g def of water: orig vrsn contained term voluntary indicating that WR didn’t go w/ in vol

trans but wrd was stricken indicating any time land is trans’d WR goes w/ unless reserved 82a-707(b) preference list: dom, mun, irr, ind, rcr, w pwr BUT still FiTFiR

o when cmbnd w/ priority list, some interpret as meaning cant condem from a user higher on the preference list (limits condemors)

o smthng that can be arg’d …o pub pol Q : farmer trying to make a living – shld city be allowed to take for muni golf

course or to make lawns prettyo Peck Proposal : citys shld be lim’d in what can take W for (dom use v. frivolous use)

Kansas Vocabulary Transfer – Change in Ownership Division of water right – Co-ownership of a water right can be portioned between parties. Dry-up Covenant – Agreement between city and farmer that farmer will not develop any new

water on the land; except for possibly a domestic well.o This covenant runs with the land.

Judgment liens on water rights are permissible, see. §701(g) – water rights are real property.

§708b – Application for change in place of use, point of diversion or use Any owner of a water right may change the place of use, the point of diversion or

the use made of the water, without losing priority of right, provided such owner: Apply in writing to the chief engineer for approval of any proposed change; Demonstrate to the Chief Engineer that any proposed change is reasonable

and will not impair existing rights; Demonstrate to the Chief Engineer that any proposed change relates to same

local supply as the water right relates; and, Receive the approval of the Chief Engineer with respect to any proposed

change. The Chief Engineer shall approve or reject the application for a change in

accordance with the procedure used to approve or deny original applications. Any person aggrieved by an order or decision by the Chief Engineer relating to an

application for change may petition for review – ANY PERSON, not just the Applicant. The Chief Engineer shall render a decision on such request within 150 days of

receiving a complete application. See p. 29-30 for full statute.

Water Transfer Kansas Water Transfer Act (p. 45-48) Water Transfer means the diversion and transportation of water in a quantity of

2,000 acre feet or more per year for beneficial use at a point of use outside 35 mile radius from the point of diversion of such water.

All proposed transfers must come before the water transfer hearing board. The board is made up the following:

o Chief Engineero Director of the Kansas Water Officeo Secretary of the Department of Health and Environment

The Panel selects a hearing officer to conduct the hearing. The hearing officer shall be an independent person knowledgeable in water law, water issues, and hearing procedures.

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No person shall make a water transfer in Kansas unless and until the transfer is approved.

No water transfer shall be approved which would reduce the amount of water required to meet the present or any reasonably foreseeable future beneficial use of water by present or future users in the area from which the water is to be taken for transfer unless:

o The panel determines the benefits to the state for approving the transfer outweigh the benefits to the state for not approving the transfer.

o The Chief Engineer recommends to the panel and the panel concurs that an emergency exists which affects the public health, safety or welfare.

o The Governor has declared that an emergency exists which affects the public health, safety or welfare.

Whenever an emergency exists, a water transfer may be approved by the panel on a temporary basis for a period of time not to exceed one year under rules and regulations adopted by the Chief Engineer. The emergency approval shall be subject to the terms, conditions and limitations specified by the panel.

K.A.R. 5-5-3 – Change in Consumptive Useo Consumptive use shall not be increased substantially after a vested right has been

determined or the time allowed to perfect the water right has expired, including any authorized extension of time to perfect the water right.

6. Reuse

Dept of Ecology v. Bureau of Reclamation (Wa, 1992; p.220) –unsatisfactory (??) Reuse is governed by two theories

o Appropriators rights in particular molecules of water do not end while the water remains within the boundaries of the appropriator’s property.

o After water has left the boundaries, the appropriators rights depend on the “control and possession” test.

Has the water been discharged; does the original appropriator have the intent to recapture.

Court seems to say that reuse gives a right holder more rights, so long as they maintain control, they don’t have to provide the water to juniors.

Courts seem to be deferential to cities. extent of pwr of someone w/ WR to use W issue really of reuse or succesive use can consumptive use be changed 2 Rules Have Developed :

o (1) geographic test – can you capture before it leaves your lando (2) control and possession test

CONFLICT w/ what weve seen earlier about changing consumptive use

P. 86 ~ Case VII: WR holder who diverts 100 wants to change CU to 100 to downstream users detriment

o imported w okay (Thayer & Denver(?) case)o if regular

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82a-708b: cahnges wont be apprvd if will detriment another, but if use isnt changing this doesn’t app

Clever v. Judd n4 p. 80 KAR 5-5-3: only apps when trying to change under 708b (read in context)

“Q is like a final exam Q in that it has no good answer”

Thayer v. City of Rawlins (Wy. 1979, p. 228) City imports water from another basin, uses it, and then discharges it into Sugar Creek where

Thayer appropriates. City changes point of discharge, thus depriving Thayer Court okays change because imported water only exists because of City’s efforts.

o Two Key Principles: The right of the City to use imported water finds its root in the common law of

property – One who by his own effort adds to the supply of a stream, is entitled to the water even though a senior priority might be without water.

Changes in points of discharge of water are not governed by the same rules as changes in point of diversion.

This as been held accurate in terms of cities and some other users. effermal stream doesn’t run all the time; doesn’t have a lot of alluvial ground water [diagram] city wants to discharge the effluent downstreaaaam from D instead of up imported water city paid $ to bring it in and wants to use it dif’ly court held that city could do what it wanted b/c it developed the water supply (imported) w in sugar creek wouldn’t exist but for city bringing it in

In KAN: happened w/ Dodge City ~ diverted w to farmers instead of treating it and putting it back in the basin which changed CU but

no one complained (wasn’t imported water)

§ 708(b) – Change in use or point of use

KAR 5-3-3 (prevents change in consumptive use) only applies to §708(b), but if you are not changing your use, you can change your consumptive use.

7. Summary

reviewed Kan. W. Approp. Act in whole – see notes in supp

§716 – Common Law Claimants Vested rights are senior to appropriate rights Appropriated rights are senior to common law claimants without vested rights First in time is first in right.

o A senior right holder can seek compensation from and enjoin a junior from using water unlawfully.

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§717a – Diversions by Common-Law Claimants and Otherso No common-law claimant without a vested right, or other person without a vested

right, a prior appropriation right, or an earlier permit shall divert or threaten to divert water if such diversion or threatened diversion impairs or would impair any vested right, appropriation right, or right under a permit to appropriate water.

o First in time is first in right.

§714 – Completion of Work and Certificate of Appropriationo Upon the completion of the construction of the works and the actual application of

water to the proposed beneficial use within the time allowed, the applicant shall notify the Chief Engineer.

o The Chief Engineer shall then examine and inspect the appropriation diversion works.

o If it is determined that the appropriation diversion works have been completed and the appropriation right perfected in conformity with the approved application and plans, the Chief Engineer shall issue a certificate of appropriation.

§725 – Reference to the Chief Engineero District Courts may order reference to the division of water resources or the Chief

Engineer, as referee, for investigation of an report upon any or all of the physical facts involved.

o The Division or the Chief shall then conduct an investigation and make a report for the District Court.

III. Groundwater

Hydrology: (scientific study of water) [diagram] draw down linear distance down in feet that the w table drops w/ resp to a partic wll cone of depression where water no longer is impairing a GW right causing rate to diminish (overlapping cone of depression) prob in W. Kan. ~ 1000s of jrs together impair sr theiss equation if you know permiability, and perocity of soil and a few other things you can

predict draw back

1. Doctrines

General Notions of GW Right Ownerhip (versus surface water)

5 Doctrines: (1) Absolute ownership, aka, the English Doctrine, aka, Rule of Capture (2) Reasonable Use, aka, the American Doctrine (3) Corralitive Rights (4) RS Torts (5) Prior Appropriation

Doctrine Right of a Landowner Amount of Protection from a Neighbor

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State v. Michels Pipeline (Wi, p. 338) Dewatering land to lay sewer pipes. Surrounding land owners complain that dewatering

impacted their wells and caused damage to their home foundations.o English Rule (Rule of capture)

Absolute ownership of water underneath your land, regardless of impact to your neighbors. No waste requirement.

o American Rule More restrictive than English rule. The water must be used on your land,

however you can use it off your land so long as the use does not harm anyone.o Correlative Rule

All landowners over a groundwater source have co-equal or correlative rights, and a person cannot extract more than his share of the water.

o Prior Appropriation First in time is first in right. You have to have a permit.

o Restatement of Torts A possessor of land or his grantee who withdraws groundwater from the land and

uses it for a beneficial purpose is not subject to liability unless the use causes unreasonable harm and lowers the water table.

The Wisconsin Court used this test, but most western states have adopted other test.

Person is dewatering (tech a benficial use) but its adversly affecting someone else (1) AO: if you own the surface you own the water down to the center of the earth

o not really protection against neighbooro lim: cant use malisouslyo TX has this (st does almost nothing to control)

(2) reasonable amount for ben useo can use of your land but not if it detriments neighbor so really you cant use it off land o PFN: a little > pwr but not much to constrain neighbooro Neb

(3) sharing (cmpr to riparioan right)o correlative rights o Cal has this o 343 n 3

(4) RS Torts (bttm P 340)o what Wi adopted in case (proposed version of 2d)o unrsnbl harm thru lowering w tableo line (2) but w/o lim re taking it off the land o final version looks like a combo of resnbl use and corrltv rights w/o lim re taking of

land (5) Prior Appropriation

o beneficial purposes; cant waste it; use it or lose it o protection against neighboor deps on who 1st

Neb:

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English Rule Texas

American Rule Arizona

Prior Appropriation Colorado

Correlative/PA California

has rsnbl use ~ basically inreg’d ~ lowered w level in republican river ~ SCOTUS said even though GWs not in the compact if it effects river level than compact app’s

State ex rel Bliss v. Dority (NM, 1950) (p 346) New Mexico changes constitution to reflect that groundwater is property of the State. Defendant alleges this is a taking of property. Court said it was not and it was a settled question. See. Yeo v. Tweedy (p. 339) (PA not really designed for GW b/c of dif in recharge) case re change from new system to old state imposes PA framework (was absolute ownership) ~ [communizied the water supply] NM did na said it was constitutional, gave VRs like Kan, but guy in this case wanted to start

pumping new last para even if its wrongful taking for which shoulda been compensated ppl have been

relying on it as an established rule of prop for long time

2. Problems

A. Managing Storage

Fundingsland v. Colorado Groundwater Commission (Co. 1970) p. 356 Water user is denied permit based on 3 mile circle and 40% depletion over 25 year test. Court upholds the test. Shows great deference to administrative agencies. in case of new WR or changes in WRs how can we try to limit this (expansion in # of permits

being granted ~ on stream FiTFiR works it out but GWs dif) GMD ~ (KS: GW Mngmnt Dist Act 68/72)

GMD – quasi-gov entity w/ abil to lim # of permits

handout******

FunndsThomp, Supp 96KS GMDs- safe yeild - depletion

Fire v. Solomon Valley (Kan. 1972) township #ing (1 mile by 1 mile) [diagram] annual GW P irr’n filed an action is dist crt jdg asked CE for help under 725 P said pump rate was diminished dramatically statute doesn’t define imprnmnt (?) (beyond unrsnble dimmunition of the water table) J found that there was impairment when reduced by 20% (in addittion to any reduction you

yourself casue) found that a # of users (but not all) were unrsnbly affected ~> perm injoined them from pumping

to the extent tht it unrsnbly lowers ~> CE determines when they can pump

2 Probs w/ GW: (1) direct impairment prob (2) general falling off of the water table caused by 1000’s of ppl

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don’t have case yet w/ a sr apprppratr saying rights being imp’d, enjoin em all, cant prove who is but they all are (geo soc w/ t to that)

Philosophical Considerations: what is states decided to decrease rights to save w for future generations (1) is it constitutional? (2) should we do it?

GWM: chart of levels from 45-95; increased peaking around 75 and declined at a decreasing rate

through 95 still slightly above 45 level Funnd & Thomp

o have somebody who appd for permit and were looking at formula that was used in deciding wheth to grant the permit

o Three Mile Radius Test (not in stat, see 3?7)o basic stand: cant …o look at sit and don’t let W go down to fast o give aquifer 25 year life o [diagram]: cylinder

Q = ttl amnt going out R = recharge – going back in can dtrm amt by percent filed by w 1/25th per year 40% crt: 40% over 20 years … if person app’s for larger amnt than allowed by formula its denied

Co. S.C. seems like a rsbl wayto … (rationale for 3 mile radius and 40% and 25 years) … not perfect but acceptable (enough rationality) noth prob: late implementation oth states have followed (KS uses a 2 mile test)

Competing Considerations don’t wanna not use econ waste mining taking out faster than ntrl recharge safe yeild take out at rate of recharge

KAR 5-23-4a (Supp. p. 66) – 2 mile circle and 40% over 25 year test.

Thompson v. Colorado Groundwater Commission (Supp. p. 95) Thompson applied for groundwater permit. CGM denied permit based on a newly created

formula to determine water use. Court ruled against Commission and ordered to measure true use of water for application

formula. denied based on 3 mile test challenges the que figure (how much has already been taken out) fig’n out whats already been taking out:

o vested rightso certified (714)

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o permitso appliations

diag: permit based on 160 but b/c of cntr pivot use only using 126 get rights for 2 ½ ft but only use 16-18 in’s the court agreed seem to be saying cant deny til conditionals have been made final in KAN : just assumption of max poss use can move around to try to meet the test

Groundwater Management Dist Stat’s: 60’s prob w/ the aq – stat in 68 changed in 72 for st practice: have to first dtrm which dist you’re in (AG op said dif’n regs were const) 82a-1020: (p 41) permits establishment of GMDs and perserves other w law 1028: district powers; home office

missed class*****hand out***rd riparian RSmining – GMD- safe yeild (east)- depletion formula (west)

prob : didn’t start in the begininng – not a farace but pretends something that’s not the case Ore ida & oth case ~ FiTFiT and safe yield

Kansas Groundwater Management Districts

§82a-1020 (supp. p. 40) – Statutory provisions for GMDs Kansas has five Districts

o Western Kansas GMD #1 – Article 21 (p. 61) Proposed appropriation shall not exceed the allowable safe yield amount for the

area included within a two mile radius circle, which is approximately 8,042 acres, of the proposed well.

Allowable annual safe yield formula is Q = AR/12o Q = the allowable annual safe yield amount in acre feet per year.o A = area of consideration, within a two-mile radius circle,

approximately 8,042 acres.o R = average annual recharge of 0.5 inches per year.

o Equus Beds GMD #2 – Article 22 (p. 63) Safe Yield Rule

Baseflow allocation formula is Qa = T/No Qa = the baseflow allocation per baseflow node in acre feet per

year.o T = the total baseflow allocation for a reach of a stream in acre

feet per calendar year.o N = the number of baseflow nodes established on a stream or

reach of a stream. Safe Yield amount shall be calculated using the formula S = A x K where:

o S = the allowable safe-yield amount in acre feet per year.o A = the area of consideration which consists of the two-mile-radius

circle whose center is the location of the proposed well.

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This calculation will not include the following wells:

Wells for domestic use.

Wells authorized by temp permits

Wells authorized for term permits of fewer than five years.

o K = an aquifer recharge value in feet.o Southwest Kansas GMD #3 – Article 23 (p. 65)

Depletion Rule Calculation required for new well is – Allowable Aquifer Yield =

0.40AMS/25 + AR/12o Allowable aquifer yield = the amount of water, measured in acre

fee, available annually for appropriation from a proposed point of diversion (well).

o A = the “area of consideration” shall be equal to the number of acres within sections containing saturated thickness within township and within the district.

o M = the number of feet of average thickness of the high plains aquifer within the townships set forth in KAR 5-23-15.

o S = the storage coefficient or a specific yield of 15 percento R = average annual recharge and return flow, which shall be one

inch per year.o Northwest Kansas GMD #4 – Article 24 (p.66)

5-24-2 – Sets forth that allowable withdrawal criteria (4) The allowable annual appropriation shall be calculated using the

formula Q = AR/12o Q is the allowable annual appropriation in acre feet per year.o A is the area of consideration.o R is the average annual recharge in inches per year.

o Big Bend GMD #5 – Article 25 (p.67) Safe Yield Rule

5-24-4a – District has been determined to be appropriated to the sustainable yield level and is closed to further surface water and groundwater applications.

§82a-1028(n) – GMD rule-making power §82a-1028(o) – GMD must get approval from Chief Engineer before enacting rules.

§82a-1036 – Intensive Groundwater Use Control Areas (IGUCAs)o Upon rec or vote of a GMD the Chief Engineer may investigate the need for

an IGUCA. To implement an IGUCA the Chief need only find one of the following:

Groundwater levels are declining or have declined excessively; The rate of withdrawal equals or exceeds the rate of recharge in the

area; Preventable waste is occurring or can occur in the area; Unreasonable deterioration of the quality of the water is occurring or

may occur in the area; or, Conditions exist within the area which require regulation for the public

interest.o IGUCA order needs to include:

Provision closing the area from any further groundwater appropriations;

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Provision determining the permissible total withdrawal of groundwater per day, month and year. Chief Engineer shall apportion such amount based on priority;

Provision reducing permissible withdrawal of groundwater; Provision requiring or specifying rotation of groundwater use; Any provision required to protect the area.

Doherty v. Oregon Water Resources (p. 362) State declares two counties a critical groundwater area and limits to safe yield. The order

includes language that when withdrawals exceed “economic limits” they must be stopped. Irrigators argue they can still make a profit and thus should be able to pump. Court rules that economic language is not discussing profitability. Order stands.

Baker v. Ore-Ida Foods (note case, p. 357) Many junior users are shut down to reach safe yield.

Intensive Groundwater Use Control Area (IGUCA) most imp thing CE did during his career created safe yeild in a small basin using stat frough w/ constitutional issues but didn’t get decided given larger taking (communization) was held might think this woulda been [diagram] – walnut creek 80s drought CE woulda enf’d priorities FiTFiR but instead called an IGUCA farmers lost but wlda anyway unless CE tried to enf 707 priority of irr over recreation… IGUCA boundary – safe yield for basin something like 22K but using 42K – that’s why had the

mining sit relied on stat … 82a-1038 (??) said they didn’t need the # of inches (18) … (1) stopping waste – reduced, but didn’t get to SY (2) senoir rights before 10/1/60

o allowed them to use reduced efficent amount (3) Jr rights were cut back even more to exactly SY CE seemed to have that power but is it constitutional & is there a philoshopical/moral

reason to save w for future generations

5A Takings: emminent domain (taking the prop) = just compenstation regulatory takings (taking economic value) = less clear how far govt can go w/o having to comp app’d here :

o waste reduction for sr users prob fine but might have had a const taking w/ the sr most jr’s (those ones clda got more if lower jr’s had been cut off)

o reached a compromise so no caseo practical matter reduced rights to small to use, so ppl prob ended up combining them o next year there was a lot of rain … o oth arg by farmers ~ basing dec on present but really it fluctuates

Unassigned Case p 375 Az stat create safe yelid over 4 yr prd idea that doing it gradually makes it less likely to be unconstitutional

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if st said gnna take WR in 500 yrs – unconst but small PV the farther away the less unconst it seems but also the less valuable

*not gonna talk re note 4 on 352

Mineral Depletion Allowance: (361) US v. Sherbert irrgtr was allowed to do the same

Subsidance: the lowering of the level of the surface (when enough GW has been removed)

Friendswood Development Co. v. Smith-Southwest Industries, Inc. (Tx, 1978; p. 372) Subsidence case. D was taking groundwater at an amount that was causing the ground to

subside. Court ruled that it wasn’t a water case because Texas is an absolute ownership state. grapples w/ prob in TX Q: cld non-pumpin HO sue pumper causing subsidence crt didn’t wanna take the WRs and so created a tort (for future cases) dissent: not a WR case – really re right of subjacent support

B. Protection of the Means of Diversion

Mathers v. Texaco (note case, NM; p. 350) States can strategically deplete non-rechargeable basins.

File v. File (Solomon Valley Feeder) (Kansas, 1972)

Cheyenne Bottoms Issue (Walnut Creek IGUCA) Chief Engineer Pope declares an IGUCA. Rules that Vested rights can remain at original level. Scales back all other users based on their

priorities.

Chino Valley v. Prescott (Az, p 365) Arizona legislature drafts a plan to reduce pumping to safe yield in 25 years. Court upholds plan. Not a taking because it provides time for water owners to recoup

investments.

C. Physical connection between Groundwater and Surface Water

when stream is physically connected thru alluvial GW when dry (no rain) stream will have some W form GW when flood stream feeds GW if put wells in b/c on interconnection can have a conflict between right holders **[diagram]

Templeton v. Pecos Valley (NM, 1958, p. 402) Water user had surface water interest, but it dried up. He then sought to use the alluvial

Groundwater in its place. Court rules that they are physically connected so he has the right to do this.

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o Kansas does not allow this type of change. #1 trying to change pnt of diversion can do if you don’t affect others adversly but theres a

qualification have to demonstrate its from same local source of supply in case crt said it ws even tho he was pulling from surf and others were pulling from ground in KS this wouldn’t be allowed (see: 3/17 HO)

Witchita ACR Case: city buying wr’s from farmers (400 a.f.) ~ a few sold but not many new idea: wld pump out w from little arc during highflow and use it to relenish the equis bed (taking it out and pumping it into the aquifer) KS law wasn’t clear on it at the time pot Q: over filling ~ basement flooding more recently cost over runs have become issue take w/ out of surface and out of the alluvium during times of high flow ptntl issue – OK complaining (already had compact w/ em at the time – prob looked at that)

Salt Water Intrusion: [diagram] pump creates gradient or something allowing salt w to intrude happens in KS in some areas (?????)

Tulare Case: (p 617) gets into notion of how sacred WR’s are as prop rights what does it mean for a WR to be a prop right 5A: govt cant take prop w/o comp (big Q left – if just affected is it a T) fed gov told farmers they had to curtail pumping to save endangered species sued in fed crt clms for compensation sent shock wave thru envrnmntl community see last sentence

701(a)

Big Q for JP: aquifier dim’n over time – cld st insist on SY for whole st would have to shut down 90% of irrigation in W Kan can do it, but wld have to compenstate (lgl issue) + ethical issue re whteth we shld do it for

future gens ntnl autobahn case vs tulare : (at extremes) and in btwn stuff like what Dave Pope did in walnut

creek issue

§ 42-306 – Rights of Prior Appropriator No person shall be permitted to take or appropriate the waters of any subterranean

supply which naturally discharge into any superficial stream, to the prejudice of any prior appropriator of the water of such superficial channel.

§ 82a-706b – Applies to both surface and groundwater. The Chief Engineer may enjoin the user of either if they interfere with use a senior user.

Land Subsidence Removal of groundwater causes drop in level of land surface

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o Texas (note 1, p. 372) – creates tort action

Saltwater Intrusion Pumping freshwater lowers pressure and causes saline water to intrude.

Arizona Groundwater Law There was a big controversy in AZ in the early 80s over what groundwater law was. In 1980 the

legislature enacted a new law to resolve the question. Set up time table over which water rights would slowly be retired – doing it slowly to get around

having it be considered a compensable taking.

IV. Riparian Rights

A. Basis of Right

Every riparian right holder is equal, is entitled to reasonable use, and can enjoin non-reasonable uses.

Natural Flow Theory: Applied until Industrial Revolution. Common law theory saying riparian owner can take water for domestic purposes only. Except for domestic purposes, riparian owner must allow water to flow down stream to other users (allowed for water wheels). If upstream user is using water for anything other than domestic purposes, downstream user can enjoin defendant or get damages if defendant is not letting natural flow pass.

Anaheim Union Water v. Fuller (Ca, 1907, p. 236) Riparian diversion out of the watershed. Court rules that riparian water must remain within the watershed.

Source of Title Test If riparian land is severed the land along the river remain riparian but the severed piece has no

riparian right.

Unity of Title Test Some states allow riparian owners to purchase contiguous lands and unify the title, making both

tracts riparian.

Thompson v. Enz (Michigan, p. 242, map on Supp. p. 94) Riparian lake lot subdivided & canals developed. Court – only natural riparian rights are recognized.

Drainage of Diffused Surface Water

Common Enemy Ruleo Build a dam or do whatever you want with the water. If it floods the neighboring land, it

is alright because they can do the same thing to you.

Civil Law Ruleo All land is subjected to a “servitude” for the natural flow of water.

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K.S.A. § 24-105 (Supp. p.8)o Cannot build a structure that discharges water with increased force upon your neighbors

land.

B. Reasonable Use

Harris v. Brooks (Arkansas, p. 246) Competing uses (irrigation/boat dock rental) on lake. Court allows irrigation up to the point where it interferes unreasonably with other valid uses.

Botton v. State (Washington, p. 255) State allows public access to non-navigable lake; creates unreasonable trespass on Plaintiff’s

lake. Court rules that nature and number of users are unreasonable for state owned riparian tract of

land. State must create rules to regulate the use.

Evans v. Merriweather (Il, p. 263) Competing mill uses on a stream. Court rules that no single user can have all the water in a stream, but the uses are not required

to be equal, only reasonable.

Cities – Non riparian, even if they lie along the banks of a stream or river.

Irrigation Issues

Hunter v. Laugenour (note 4, p. 266)o Apportions water based on irrigable riparian acres.

Harris v. Harrison (note 4, p. 266)o Each user gets full use of stream for 3.5 days a week. Two users.

Farrell v. Richards (NJ, p. 267)o Diversion is stopped by the court because it affects (prior) natural flow users

downstream.

Restatement of Torts 2nd (supp. p. 70) – Ch. 41 Interference with the Use of Water (“Riparian Rights”)

§ 850 Harm by One Riparian Proprietor to Another A riparian proprietor is subject to liability for making an unreasonable use of the water of a

watercourse or lake that causes harm to another riparian proprietor’s reasonable use of water or his land.

§ 850A Reasonableness of the Use of Water The determination of the reasonableness of a use of water depends upon a consideration of the

interests of the riparian proprietor making the use, of any riparian proprietor harmed by it and of society as a whole. Factors that affect the determination include the following:

o (1) The purpose of the use,

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o (2) the suitability of the use to the watercourse or lake,o (3) The economic value of the use,o (4) The social value of the use,o (5) The extent and amount of the harm it causes,o (6) The practicality of avoiding the harm by adjusting the use or method of use of one

proprietor of the other,o (7) The practicality of adjusting the quantity of water used by each proprietor,o (8) The protection of existing values of water uses, land, investments and enterprises,

ando (9) The justice of requiring the user causing the harm to bear the loss.

Explanation of §850A:1. Plaintiff must be making reasonable use (look to 1st 4 factors of 850A)

a. If not reasonable, analysis stops & Defendant wins2. Defendant must be making unreasonable use (look to 1st 4 factors of 850A)

a. If unreasonable, then analysis stops & Plaintiff winsb. If reasonable, then look to last 5 factors of 850A

3. Courts then decide whether to give damages, injunction, or both.

Purposes: Domestic, Irrigation, Industrial, Water Power, aesthetic values, recreational values, etc. Almost all purposes OK in most circumstances.

Suitability: Almost always suitable because wouldn’t build if notEconomic Value: To person doing this. Almost anything. Social Values: Can be anything

Rarely find use per se unreasonable by 1st 4 factors. Look to 2nd 4.

3. Non-Riparian Uses; prescription and grant, municipal

A. Prescription

Pabst v. Finmand (Ca, p. 27) Defendant’s use is unreasonable (it is outside of the watershed), but it has occurred long

enough to vest a prescriptive right.

B. Grant

Duckworth v. Watsonville Water & Light (p. 278) P purchased land from O, who had previously given D the rights to take water from riparian land

to use it on non-riparian lands. P sought to quite the title and get the rights back. Court ruled that D had superior title and P was bound by the deed.

Pyle v. Gilbert (Georgia, 1980; p. 279) Court holds that riparian rights can be bought or sold just like any property right. Thus grant of

riparian water to non-riparian land is allowed. For two reasons:

o Riparian rights are property rights and as such could be normally transferable.

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o Water law should be utilitarian and all the best use of water.

C. Municipal Supply

Adams v. Greenwich Water Co. (CT, p. 284) Water Co. has rights to use riparian water to supply cities (statutorily), but must compensate

Adams and others for their loss.

4. State Regulation of Riparian Rights

Regulated Riparian (note 1, p. 300) State instituted riparian permit systems Permits (often) terminate at a specific point in time.

Administrative Discretion (note 4, p. 302) Reduction and reapportionments are to be expected.

5. Abolition and Combination

Franco-American Charolaise v. OK Water Bd. (p. 312) OK (like KS) shifted from Riparian to Prior-App. Allows current users to vest, but divests non-users. Court rules that this a “Taking” and the state must compensate.

o Kansas courts see otherwise, see Kansas Water Appropriation Act.

V. Water Distribution Organizations

Public Agencies

Sullivan v. Blakesley (Wy. p. 432) Challenges imposition of irrigation district and assessment charges. Court rules that assessments are charged based on anticipated benefit to the tract, not paying

the assessment would be unjust enrichment.

In Re Reno Press Brick (Nv. p. 440) Reno wants to be excluded from the irrigation district because it does not plan to irrigate. Court rules that just because Reno doesn’t intent to irrigate it can not opt out of the district.

Mere existence of the district increases value of the land.

Ball v. James (Az, p 452) Challenges under Reynolds v. Sims (1 person; 1 vote). District limited voting to land owners and gave proportionally. None land owners challenged the set up because District provided benefits other than water

services. Supreme Court of Arizona rules that the set up is fine. The Board’s duties are narrow and thus

the voting standards must match that purpose (Broad/Broad; Narrow/Narrow).

Hellebust v. Brownback (KS, 1993) Hellebust challenged the Board of Agriculture being limited, by voting, to only the Ag

community.

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Judge Lundstrum agreed and placed the Board in receivership until the legislature corrected the problem.

Now the Agriculture Commissioner is appointed by the Governor.o This was needed because Ag Comm oversaw Chief Engineer and Chief Engineer had

control over municipalities, industrial, and power.

Fulgham v. Selma Mr. Fulgham buys water from Selma and sells it to rural water users. Selma charges him a very

high rate and he challenges the price as discrimination. Court rules that discrimination is allowed to outside users. Must charge everyone in the city the

same rate, but anyone outside city limits may be charged any price.

VI. Interstate Allocation

1. Equitable Apportionment

Kansas v. Colorado (1907) Kansas complained that Colorado was taking to much of the Arkansas River. Supreme Court reviews case as if both states are on equal footing. Court declines to use one law (riparian/prior appropriation) over the other. Instead the Court creates equitable apportionment. Weighs the harms and benefits to both and

finds that Kansas’s harms are less than the benefits to Colorado. Left open the door for Kansas to sue in the future.

Wyoming v. Colorado (1922, p. 465) Wyoming sued claiming damages due to Colorado removing water from the basin of origin. Court noted that sense both states were governed by the doctrine of prior appropriation that

general principles of that doctrine could be used to resolve the issue. Prior appropriation does not forbid out of basin transfers. However, the Court did use the prior

appropriation doctrine completely and instead used mass allocation and gave some water to Colorado and some to Wyoming.

This case lead to the Colorado River Compact. Upper Basin states realized after this ruling that California had a great deal of leverage.

New Jersey v. New York (1931 p. 467) New York proposes to transfer water out of the Delaware River to New York City. New Jersey objects as this would be a transfer out of basin which is not allowed under the

riparian doctrine. The Court recognizes the doctrine of riparian rights, but nevertheless uses a mass allocation

formula to address the needs of both States.

Nebraska v. Wyoming (1945 p. 469) When a case involves states that all use the prior appropriation doctrine, the date of the

appropriation is the major factor, but other factors count as well. These include:o Physical/Climactic Conditionso Consumptive use v. Returned watero Extent of Established userso Available Stored watero Practical effect on downstream users

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o Damage to upstream (by limitations) v. Benefits to downstream.

Colorado v. New Mexico I Colorado sought to appropriate water in the Vermejo River. However the River had already

been fully appropriated by New Mexico. Court ruled that Colorado could appropriate the water because New Mexico could mitigate its

damages through efficiency measures and because Colorado’s benefits more than outweighed New Mexico’s harm.

Colorado v. New Mexico II State seeking reapportionment bears the burden under clear-and-convincing-evidence standard

that the benefits it seeks outweigh the harm caused in disrupting the established uses. Court also noted that just because you have an interstate stream, it does not mean that both

states are entitled to water.

2. Interstate Compacts

Interstate Compact Procedureo States make agreements amongst themselveso They must first be authorized by the Federal Gov’t to do so.o Federal govt adopts the compact and it becomes federal law; additionally, the states

adopt the compact into state law.

Hinderlinder v. La Plata River Ditch Co. (p. 486)o State Engineer has the authority to shut down a senior water right holder to meet the

requirements of an Interstate Compact.

Texas v. New Mexico (p. 489-491)o Agreement between Texas and New Mexico that required Texas get a certain amount of water

from the Pecos.o The inflow / outflow formula was flawed and problems quickly arised.o The Compact allowed each state one vote on any differences. There were only two votes, thus

a deadlock.o The mere existence of a compact does not foreclose the possibility that [the Court] will be

required to resolve a dispute between the compacting States.o Later, New Mexico failed to deliver. Texas sought water and the Special Master, although he

thought money would be better, recommended that to the Court. The Court disagreed an ruled that the lack of a specific compact provision for money damages did not preclude the remedy.

o Money can be interchangeable for water as a remedy in failure to meet compact requirements.

Kansas v. Coloradoo Colorado farmers in the Ark Valley began to dig wells at an incredible rate.o Texas v. New Mexico is decided and provides Kansas an avenue to bring suit.

o 1984 Suit filedo Special Master appointed from Pasadena, California.

At this time it was determined that Colorado was in breach of the compact. The next question was damages:

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1995, 2000, and 2008 Oral arguments are held. Peck took part in 1995 arguments.

o Kansas argued that its damages should be calculated from 1950 on with pre-judgment interest.

o Supreme Court did not agree with the pre-judgment interest argument. The Court said interest could begin to accrue once the case is filed, but not before then.

o Peck argues that downstream states have a tough burden in suits like this.

o It was decided that Waters of the Arkansas River included groundwater; this was key for Kansas.

o 2008 oral argument involved expert witness fees. Colorado won because a statute limited expert fees to very small amount.

Kansas v. Nebraskao Special Master appointed from Maine.o Settlement was reached quicklyo Nebraska has struggled to meet compliance requirements. They manage surface and

groundwater differently, therefore, the state is very weak.o Nebraska has been out of compliance since the start. They argue that money is

interchangeable for water.

Kansas Compacts

o Arkansas River Compact

o Colorado and Kansas

Water of the Arkansas River means the water originating in the natural drainage basin of the Arkansas River, including its tributaries, upstream from the state line, and excluding waters brought into the Arkansas river basin from other basins

Article IV (D) is key language of the compact.

The compact is not intended to impede future development of water for beneficial use, provided that the water is not depleted in usable quantity or availability to users in either state.

o Republican River Compact

o Colorado and Nebraska and Kansas

The major purpose of the compact is to equitable divide the water. See Article 1 on p. 14

Each state is given a certain amount of water each year.

“Virgin Water Supply” is defined to be the water supply within the Basin undepleted by the activities of man

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“Beneficial Consumptive Use” is defined to be that use by which the water supply of the Basin is consumed through the activities of man, and shall include water consumed by evaporation from any reservoir, canal, ditch, or irrigated area.

o Big Blue River Compact

o Kansas and Nebraska

Sets forth deliver requirements for Nebraska at the state line at various times of the year.

3. Congressional Apportionment

Arizona v. California

o Colorado river starts in Colorado. Its basin includes Colorado, New Mexico, Utah, Wyoming, Arizona, Nevada, and California.

o The states are separated in an upper and lower. Lower includes California, Nevada, and Arizona. Upper includes Colorado, New Mexico, Utah, and Wyoming.

o Upper basin was concerned that California was going to develop all the water first and leave them with no water. See. Wyoming v. Colorado case that said if all parties are under the same doctrine the Supreme Court will use the principles of that doctrine.

o Federal Gov’t authorized the basins to enter into a compact. Each basin got 7.5 million acre feet per year. At this time Congress authorized the Boulder Canyon project which, Arizona’s opinion, allocated the waters of the river.

o Arizona refused to ratify the compact because its tributaries were included in the proposal. They were concerned they would pay the tab on the Mexico burden. Arizona argued that the Boulder Canyon did not include the tributaries, but only the main stem of the Colorado River.

o In the proposal Nevada would get 300,000 ac. ft.; Arizona would get 3,000,000 ac. ft.; California get 4.2 million ac. ft.; all other waters were to be split between California and Arizona equally.

o The act went into effect with the approval of six states. Arizona ended up with 2.8 million and California got 4.4 million. This was 1928

o In 1952 Arizona sued. Arizona won, under Mark Snell, because Congress did allocate the water and the secretary of the interior had the authority to enter into contracts for water based on the break out of the 7.5 million acre feet.

o No one could use the water without compliance of the Act or by contracting with the Secretary of the Interior.

Missouri River

o Has the Missouri River basin been apportioned by Congress?

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Series of very devastating floods in 1903 & 1935. Missouri River Basin was studied to see about alleviating flooding.

Corp of Engineers & Bureau of Reclamation came back with different reports. Corps came back with Pick Report. Bureau came back with Sloan Report. Each came back with plans for reservoirs in basin.

Congress accepted & combined them for Pick-Sloan Plan. Tension between upper basin & lower basin states. Lower basin states (Kansas, Nebraska, Missouri, & Iowa) depend on Missouri for barge traffic. Upper basin states (North Dakota, South Dakota, Montana) want it for irrigation use. As a result, Congress came to Omahanee-Millikan Agreement. Tried to protect irrigation use, but never actually built irrigation districts. Just recreational use now as big lakes in South Dakota.

Congress adopted Pick-Sloan Plan & Omahanee-Millikan Agreement, but did they allocate water in doing this?

Could conclude allocation here says Peck, even though doesn’t say “purpose here is to equitably allocate the waters.” Interestingly, Kansas basically splits as far as wanting irrigation & wanting barge traffic, because we partake in both interests.

Flood Control Act of 1944: Section 9(a) refers to Pick-Sloan Plan. Section 1(b) refers to Omahanee-Millikan Agreement.

Recreational Interests – Public Right to Use Water:

VII. Public Right

A. Navigation

Layman’s use is whether boat could go down river. Law uses include: (1) Testing scope of federal regulatory authority for commerce clause (can federal government build dam). (2) Determining navigable servitude. (3) Various state purposes. (4) Determining title to beds of stream. Navigability: Whether waterway could be used in stream of commerce at time of statehood.

Kansas v. Meek (Kansas, 1990; p. 509)

o Man owned land on both sides of Shoal Creek & built fence through creek to keep people from canoeing through it. Whether he could do this depends on whether stream is navigable.

o If navigable, his ownership only extends to banks & state owns beds. If non-navigable, then he owns all of bed. Webb Test (page 510). Holt Bank Test says navigable if bodies of water were susceptible as highways of commerce under natural conditions of body of water or commerce was or could have been conducted at time of statehood. People who live on non-navigable streams got title to beds. Navigable streams in Kansas: Kansas River, Missouri River, & Ark River (navigable at statehood). Non-navigable streams: Neosho River, Republican River, & Shoal Creek. Shoal Creek is not very wide, but is deep. It is non-navigable, because it was smaller than Neosho. Even though it would support a small boat or raft, it is non-navigable at

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statehood because it could not support commercial boat traffic. Man owns river bed & his land, so anyone who floats down it is trespassing. 72a-§702 (all water is hereby dedicated to use of public) deals with applications for consumptive use. It does not open up rivers to public use because it has different intent. If legislature wants to do this, it can (but may have taking claim). Kansas denied public trust doctrine on navigable stream with canoe.

Day v. Armstrong (Wyoming; p. 515)

o Under Wyoming Constitution, state had title to water. In Wyoming, despite fact that owner owns bed, public has right to float down stream. However, public does not have right to get out of stream & get on land. If floaters get stuck, they can get out & dislodge, but not any more than that. While floating, public could not hunt & fish. Legislature had power to allow persons to float on streams. Proscriptive Easement: If public uses it enough, it has gained right. There has been period of canoe traffic, but no proscriptive easement unless traffic to point that state must step in (not here). Canoers argued public trust doctrine (judicially-created), saying that public owns it just for use of public (held in trust for public), but cannot sell it (like parks & navigable streams, etc.). Court did not do this here, because it is for legislature (even though normally judicially done). Kansas recognizes property rights & doesn’t want to change property rights through judicial decree.

Colorado Case: Don’t have use of water in non-navigable waters.

B. Public Trust Doctrine

Illinois Central Railroad v. Illinois (US, 1892; p. 523)

o Illinois tried to convey entire Chicago Harbor District to Illinois Central Railroad by selling all land underneath navigable waterway. Illinois transferred control of this area underneath navigable stream & would lose right to control it.

o Court found this sale invalid because public trust doctrine precludes it. 1 legislature can’t do something that will bind all legislatures after it. Important because inflow of commerce for entire state (huge harbor & commercial area). Court didn’t site any authority, but created its own law that when states own navigable waters, they can’t irrevocable sell it.

National Audubon Society v. Superior Court (California, 1983; p. 532)

o Series of 5 streams that fed Mono Lake (only streams to feed lake). LA appropriated 4 of these streams (because they were freshwater) through prior appropriation rights. Didn’t take water from Mono Lake because it was saline (no outlet). Complaint that LA was draining 4 of 5 incoming streams, so Mono Lake’s water level was quickly decreasing (impacting local wildlife).

o Lake is navigable & used for commerce (shrimp). Public Trust Doctrine v. Prior Appropriation Doctrine. California Water Resources Board (equivalent to chief engineer) must consider both when determining whether to allow water right. Both must be read together & reconciled. (1) State as sovereign retains continuing supervision of navigable waters & land below. (2) Legislature has power to grant usafructuary licenses (right to use) & grant appropriator to use water even though taking may unavoidably harm uses of source stream. (3) State has affirmative duty to take public trust in account in planning & use of water resources & protect

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public trust whenever feasible. (4) Once state approves appropriation, public trust imposes duty of continued supervision over taking & use of appropriated water. (5) State has power to reconsider allocation decisions even though those decisions were made after due consideration of their effect on public trust.

Application to Ogallalah Aquifer: (1) Ogallalah is not navigable. (2) Kansas rejected public trust doctrine in Meek v. Hayes for canoe (although different context).

Supplement P. 81-82Non-navigable streams

Riparian owners own bedsTo middle of stream if land up to river

Navigable streamsState owns beds

What happens when rivers change courseSlow movement of river – AccretionWhen river channel moves by accretion, so does land boundaries

A is gaining & B is losingWhen flood & everything is inendated & river changes course – AvulsionWhen river channel moves by avulsion, land borders remain same as prior

VIII. Federal Water Law

1. Constitutional Powers

Federal government’s role in water lawCommerce ClauseProperty Clause Art IV Section 3: May exert right over certain propertiesWar Powers Clause: Congress’ exertion of power over rivers for national defenseArt I Section 8: Allows congress to levy taxes for general welfare – Used to construct many large reservoirsTreaty Clause: Government can enter into treaties – Including treaties for water

Commerce ClauseTransportation (Highways, railroads, navigable waters, air), Communications, Food/Drug Acts, Anti-trust legislation, Federal Trade

Daniel Ball (US, 1870; p. 622)

Definition of navigable waters: Navigable in fact. Used or susceptible to being used in their ordinary condition as highways of commerce. When form in ordinary condition by themselves or uniting with others, continued highway where commerce is or may be carried out.

Types of Commerce Clause Cases:Navigation (Daniel Ball) & Rivers & Harbors Act of 1890

§10 permit for Water One’s dam over Kansas RiverWater is navigable in fact or is affected by ebb and flow of tide

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Electric PowerUS v. Appalachian Electric (US, 1940; p. 622)When presently used, or succeptible of being used for commerce, in past was so used or succepticle of being used, or in future could be so used.

Clean Water ActNational Resources Defense Council (1975): Corp originally restricted its waters to classical navigable waters, but here Corp expanded its regulations to anything that takes to limits of Commerce Clause.US v. Riverside Bayview Homes: At least some waters that were not deemed navigable & allowed for wetlands close to navigable waters.

Solid Waste Agency v. US Army Corps of Engineers (US, 2001; p. 617)Cities wanted to put solid waste in sandpits not associated with any navigable stream. Did waters of US include sandpits? Appeals said yes, because birds used them as migratory birds & birds are in commerce (people watch them & hunt them). Supreme Court said no because reading it this way would ignore navigability.

Rapanos v. US (2004): Wetlands 20 miles away from navigable streams, but connected to navigable stream by man-made ditches.

Possible Outcomes:RemandMere hydrologic connection will not suffice in all casesSome navigability has to be part of connection

Significant nexus

Still big question about what client can do to dump water & where

US v. Rands (US, 1967; p. 626)

Land owner riparian to Columbia River in Oregon. Land owner wants to sell land to state at FMV of land. Then, government condemns land from land owner & sells it to case. Government only paid land owner 1/5 value of land because 4/5 value is there because of being next to navigable stream. Government said when condemning, don’t have to pay for navigational aspect of river because government owns river (because navigable). Called navigational servitude – Federal government’s ownership of navigational aspect of stream.

As result, Congress enacted §111 (p. 630) of Rivers & Harbors Act of 1970: When real property is taken by US for public use of harbors, canals, or waterways of US & all condemnation proceedings, compensation to be paid is FMV of land, including aspects of being on navigable waters.

Condemnation of riparian lands on navigable streams – Navigable servitude

Rands: If owner has land along naviagable river, then federal government does nto have to pay for navigability aspect of land on water in condemnation (navigability is already owned by federal government). Now overturned in federal legislation.

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2. Federal Legislative Programs & Preemption of State Law

Sporhase v. Nebraska Ex Rel. Douglas (p. 644)

To what extent can a state try to protect its own water resources for itself? Farmer in Nebraska with that straddled Nebraska and Colorado wanted to take ground water

from Nebraska and apply it to his Colorado land (for irrigation). Nebraska state staute required permission to do so and had a list of three criteria to allow such

a use.o If they have a permito If the Director finds the withdrawal is reasonable and does not harm the public good;o And the state the water is being transferred to has a reciprocal statute.

Colorado does not allow groundwater from its boundaries to be used in another state. Is Nebraska’s statute constitutional?

o Is water an article of commerce? And therefore subject to the commerce clause and the congressional power?

U.S. S.C. ultimately found the Neb. statute unconstitutional but said in dicta in an arrid state such a restrict might be acceptable.

Court goes through 2 lines of cases: (1) Geer (1890): wild animals being protected by Conneticut (2) Hudson County (1908): water; if state has a valuable resource it can

protect it for its citizens (3) Altas v. Carr: A (Ok) contracts with W (Tx) for water from Texas;

Texas didn’t like that; the court gave more deference to the idea of natural resources being articules of commerce and states not having so much control; held that water was an article of commerce and that the state couldn’t protect it; in Texas though individuals own their groundwater (absolute capture)

(4) Hughes (79): minnow case; overruled early cases and said the state could not enact legislation to protect

Neb tried to distinguish on the basis of absolute ownership in Atlas versus resonable use (court didn’t think there was much difference)

Water is an article of commerce therefor Congress has the power to regulate it (but Congress isnt involved here)

o Negative Commerce clause (Pike) – Where congress hasn’t acted but it could. States can act but only if they are protecting their local interests (i.e., health and safety). Nebraska argues that it is only trying to protect its local interest.

Pike v. Bruce Church: statute regulating the movement of water must be incidental in effect on interstate commerce

The reciprocity requirement fails to clear this initial hurdle. For there is no evidence that this restriction is narrowly tailored to the conservation and preservation rationale. Even though supply of water in a particular well may be abundant, or pherhaps even excessive, and even though the most beneficial use of that water might be in another State, such water may not be shipped into a neighboring State that does not permit its water to be used in Nebraska. If it could be shown that the State as a whole suffers a water shortage, that the intrastate transportation of water from areas of abundance to areas of shortage is feasible regardless of distance, and that the importation of water from adjoining states would roughly compenstate for any exportation to those states, then the

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conservation and perservation purpose might be credibly advanced for the reciprocity provision.

A demonstrably arrid state concievabley might be able to marshall evidence to establish a close means-end relationship between even a total ban on the exportation of water and a purpose to conserve and preserve water.

facially discriminatory legislation = strictest scrutiny Like restrictions on intra and inter state can be used to try to preserce If state suffers a water shortage and you can show the water can be moved w/in

the state for health and safety of the residents – shows limitit to which states can try to protect that water

KS 82a – 726 (p. 35)

Condition that water right may be suspended, modified, or revoked; makes the right somewhat more tenuous(b)(2) – re Ok cases, where Ok didn’t allow a use so resident tried to get the water from KS for that use

take away: if a client wants to move water out of the state it may have their right modified or suspended at some point in the future [QQQ]

A. Licensing

First Iowa Hydro-electric cooperative v. Federal Power Commission First Iowa is a power company chartered under Iowa law. They were to be located on the

Cedar River. They had acquired 98% of all rights on the river. Federal law governed but a provision in the federal law required that the plant conform to state

law. Feds wanted to grant the proposed plant, but Iowa vetoed. Court rules that when Feds have the power under the commerce clause, than their rights will

supersede states’ rights to intervene with the project.

B. Construction and Management of Federal Projects

Multi-purpose Reservoirs: Specification of purpose of reservoir. 1. River & Harbor Improvement2. Power Production3. Irrigation4. Flood Control - federal5. Recreation6. M & I Supply7. Fish & wildlife8. Navigation & water quality – federal

Reclamation Act §5: 160 acre limitation§8: state law deference provision: acts not meant to interfere with laws of the state related to control, appropriation, use, or distribution

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California v. United States (p. 666)

§ 5 in 1902 only allowed for 160 acres to get water. This has been amended.

§ 8 appears in the Act to defer to state law on the issues of control, appropriation, use and distribution of water involved in the projects.

Question: what law governed – federal or state?

Early Cases:

o Arizona v. California (1931) – Court rules that Federal govt does not have to get states permission to build a dam.

o Ivanhoe – When act gives an acreage amount the amount has to be followed regardless if state comes up with different number. When there’s a specific provision, such as the 160 acre limitation, it governs despite the existance of §8.

o City of Fresno – California preferred domestic use over irrigation. Act said that irrigation was the highest use. Must follow the act. Federal law governs not withstanding §8.

o Arizona v. California (1963) – Secretary of Interior can ignore state preferences when contracting.

Federal government was ready to build a project and wanted to do it w/out getting a permit from Cali Water Resource Board; went to court seeking a declaration that it did not need one

Cooperative Federalism – w/ fed gov’t constantly defering to the state law; earlier (4) cases were aberations; brought a skeetching halt to the notion that the federal government was omnipotent

Supreme Court rules that Congress intended to defer to the substance, as well as the form, of

state water law. BR must comply with California’s decisions. That is the purpose of § 8.

ETSI Pipeline Project v. Missouri (US, 1988; p. 681)o Proposal to move water from SD river to Wyoming (to be mixed with coal) & then piped to

Mississippi River. Point was to move coal without river. Main objector was Missouri, & SD lost right to build pipeline. If Bureau wishes to remove water from any Army reservoir for any purpose, approval of Army Secretary must be secured.

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3. Reserved Water Rights

A. Indian Reserved Rights1

US v. Winters (p.693)

Established Indian water rights. When a treaty creates an indian reservation – for the indians for whom the land was reserved – there is a water right that exists whether or not it is stated in the treaty = RESERVED WATER RIGHT for the indian for the purpose for which the treaty is said to be

Ambiguities in treaties should be construed in favor of the Indians. If treaties say there is water right then it governs, but if it doesn’t have the langue the Court will

apply such a right. The date of the water right will be the date of the treaty. The right created is not lost by non-use. To determine extent of the right (quantity), if treaty is silent look to purpose and determine – practicable irragable acres (PIAs)

o California v. Arizona – The Special Master found that when the United States creates these reservations or added to them, it reserved not only land but also the use of enough water from the Colorado River to irrigate the irrigable portions of the reserved land.

take away: need to know about this id up or down stream from a reservation; must know whether a water right has been determined; if not, must look to treaty and try to determine

B. Federal Reserved Rights

Issue: do federal carve outs create implied federal reserve rights?- look at the reservation doc to determine what the purposes for which it is made are- if it somehow involves water, they have the right as of that date; then have to determine amount

Cappaert v. United States (p. 710)

If the Federal Government reserves (whether by congressional act or Executive order) land it also reserves water rights, based on the date of the reservation. The amount of water under the reservation is the amount of water needed to carry out its purpose.

1 OTHER: (didn’t cover)Arizona v. California (US, 1963; p. 684)

o Determined amount of water rights. Enough water to irrigate irrigatable portion of reservation lands. Broke amounts up to California & Arizona reservations

Colville Confederated Tribes v. Walton (p.692) Involves a small creek and seven tracks of land. The Allotment Act allowed for tribal land to

be sold to individual Indians and others. So three tracks in the middle had been sold to a non-Indian (Walton).

Does the reservation right come with the tracks? The right is important because it has a quantity and date. Further, can an Indian convey that to a non-Indian?

The answer to the first question is yes, the Indian gets the reserved right. The quantity would depend on irrigable acreage and then divided ratably to each track.

o Indian Reserved rights are not lost to non-use. The answer to the second question is yes, the non-Indian gets what the Indian had. They

get what the Indian used and a reasonable time to perfect the amount the Indian didn’t use.

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land was reserved to conserve ater and some sort of animal therein; person was subject to this federal right even though it didn’t know about it; amount necessary to keep the portected fish safe

This applies to groundwater and surface water.

United States v. New Mexico (p. 714)

National Forest with a creek running through it. Water users want to take water out of creek. Does the Federal Government have a right to the water?

Yes the Federal gov’t has a water right, but it is limited to reservations purpose. That being the preservation of the forest.

determined the amount of water based on the date and how written

C. Adjudication

The McCarran Amendment

- federal government give permission to states to determine federal rights in state court- in a state that has adjudication of water rights can implead the federal government and determine the federal and indian reserve rights

Colorado River Water Conservation District v. United States (p. 724) The McCarran Amendment provides that the United States may be joined as a defendant any

suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit.

Thus the Federal suit has allowed itself to be sued in either State or Federal court.

TEST – Fri 13th (oh no!) – open book, note, supplement, outline CITE AUTHORITY WHEN POSSIBLE

Class NotesApril 13, 2009

National Audubon Public Trust Principles

The state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters.

As a matter of current and historical necessity, the Legislature, acting directly or through an authorized agency such as the Water Board, has the power to grant usufructuary licenses that will permit an appropriator to take water from flowing streams and use that water in a distant part of the states, even though this does not promote, and may unavoidably harm, the trust uses at the source stream.

The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.

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Once the state has approved an appropriation, the public trust imposes a duty of continuing supervision over the taking and use of the appropriated water.

The state accordingly has the power to reconsider allocation decisions even though those decisions were made after due consideration of their effect on the public trust.

Kansas has not adopted the Public Trust Doctrine.

Class NotesApril 14, 2009

See p. 81 – 82 for Water Boundary ownership.

Changes in Channel Boundaries – Common Definitions

Accretion – The act of growing to a thing; usually applied to the gradual and imperceptible accumulation land by natural causes, as out of the sea or a river. The accompanying activity on the other side of the stream is called “erosion”, which is the gradual eating away of the solid by the operation of current or tides.

Avulsion – A sudden abandonment of an old channel and creation of a new one, usually by flooding.

Reliction – An increase of the land by the permanent withdrawal of retrocession of the sea or a river.

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water law outline

Documents

prima facie

analysis stops

illinois central

special master

minimum desirable

desired minimum

independent

reconsider