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Introduction to Water Law

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When someone indicates they have a question about water law, what is your first thought?  Is it logical to ask "do you have too much water or too little water?"  Is the "water law" question about acquiring water or disposing of water?

  • Water law can be thought of as addressing the problem of "not having the desired quantity of water in the desired quality in the desired place at the desired time." You may have more than you want, or less than you want; you may have the water here when you want the water there; it may be that the water you have is not the quality you desire or need; and you may not have the water when you want it.

We will primarily discuss acquiring water and spend less time discussing the disposal of water.

Supporting materials for this course (e.g. syllabus, assignments, etc) are available at the NDSU Blackboard site when the course is being taught. At that time, the materials for this course are found by

  • Go to https://bb.ndsu.nodak.edu/webapps/portal/frameset.jsp
  • Click on “View Course Catalog”
  • Click on “”NDSU Blackboard Courses”
  • Click on “Agribusiness & Applied Economics”
  • Scroll down the list of courses until you find “113-NDSU-11515-24511 Water Law”; you may need to go to the third page to find the course.
  • Click on the left column; you should now be at the course Blackboard (Bb) site.

You should not need to log in; this site is open to “guests”.  Let me know (david.saxowsky@ndsu.edu) if you have questions.

This course uses Grant and Weber. Cases and Materials on Water Law, 8th, 2010, ISBN-13: 9780314907998; see http://west.thomson.com/productdetail/155332/22091707/productdetail.aspx

Acquiring Water:

  • Acquiring water becomes an issue during times of a "water shortage;" that is, if there is not enough water to meet everyone's needs, who will be allowed to use the water and who will have to forsake their use of the water.  Restated, who has the superior legal rights to use water?
  • There are perhaps five ways to specify who has the superior water right
    1. the first person to use the water, implying that those who started using water at a later time will be the first ones required to discontinue using water when there is not enough water to meet everyone's needs; it also implies that when the water supply recovers, those who were required to stop their use of the water will be allowed to resume their water use;
    2. those whose land is adjacent to the water source (surface or groundwater) have the right to use the water,
    3. government allocates water among competing users (e.g., an administrative agency decides who gets the water),
    4. water is bought and sold in a marketplace and those who are willing to pay the most will be able to use water, or
    5. government/legislature specifies priority of uses and low priority uses will not be allowed to use water if there is not enough for everyone.

  • Is one theory better than the other? 
    • A common overall goal, regardless of which legal theory is followed, is to use water to benefit society. See N.D.C.C. §§61-01-26, -26.1 and 26.2.
      • Declaration of state water resources policy; Findings and declaration of policy; and Statewide water development goals.
  • The U.S. primarily has applied 1) first-to-use (prior appropriation in the western states) and 2) adjacent uses (riparian doctrine in the eastern states). The dividing line between east and west is the Red River of the North.
    • As water law evolves, will the distinction between these doctrines become more blurred?
    • These materials emphasize the prior appropriation doctrine of the western states.
  • How do I know that someone else is using the water? I can see they are using it; just look around. How do I know if water is available for me to use: can I just look around?
    • One objective of water law is to document water usage, who has the right to use water, and assess whether water is available for additional uses.
    • Water law is a combination of science, social policy and legal rights.


  • U.S. water law emerged from the common law; that is, a history of court decisions. During the past century, many of the legal principles have been codified by state legislatures into statutory laws; some of the codifications continued the common law principles while other codifications modified or replaced the common law principles.
    • A study of the common law is important to gain an understanding of water law, but the study needs to be augmented with an introduction to relevant statutory and regulatory law. An objective of this web site is to provide links to some of these statutes; however, the challenge is complex because water law is state law and many states have included provisions to address their unique needs. or issues.

Different types of water uses:

  • Diversionary uses:  the water is diverted from its source, examples include irrigation, domestic (household, livestock), municipal, industrial

  • In-stream or flow uses:  navigation, hydroelectric, fish and wildlife, recreation, waste dilution

  • In-site uses:  swamps, wetlands, vegetation, wildlife
  • North Dakota statutory law defines water uses (N.D.C.C. §61-04-01.1)
    • Domestic use
    • Fish, wildlife, and recreation
    • Industrial use
    • Irrigation use
    • Livestock use
    • Municipal or public use
  • Agriculture is a major user of water in the western U.S.
    • Estimated Use of Water in the United States in 2000; U.S. Geological Survey

    • "Nationwide, agriculture accounts for nearly 80 percent of all water consumption. That figure is even higher west of the Mississippi. Three-quarters of all cropland in the Western United States is irrigated. The 16 percent of harvested cropland that is irrigated accounts for nearly half of the value of all crops sold. Nationwide, nearly 100 percent of all orchard sales and more than 80 percent of the sales of vegetables and potatoes are produced on irrigated cropland.

    "Increasingly, in all regions of the country, demand for water is growing faster than supply. Increasing demands—for urban, environmental, and Native American uses and for the production of hydroelectric power—and declining supplies— arising in part from land use changes including urbanization, deforestation, and fewer wetlands—create conflicts over water allocations. Conflicts arising over scarce water supplies in river basins throughout the West may foreshadow emerging conflicts in Eastern States. Because it accounts for such a large percentage of total water use, agriculture is uniquely positioned to be a part of the solution.

    "Incentives and technical support for improved on-farm water management encourage farmers to do more with less and provide some regulatory and drought relief for farmers who have to cut back. Conservation programs can also play an important role in helping to solve water management issues on the  watershed scale. Voluntary conservation programs and risk management programs could be parlayed, in conjunction with other Tribal, State, and Federal agencies, to develop market-based water banks to help mitigate the high cost to all water users of droughtinduced water supply reductions. Water banks could consist of producers who would voluntarily idle production on irrigated lands in drought years in return for payment. Such a program would minimize the cost of disruptions associated with droughts while keeping resources (water, land, and labor) in production in nondrought years. Encouraging development of more on-farm water storage facilities (such as reservoirs and storm water ponds) can help alleviate local shortages."

    Source:  "Emerging Challenge Water and Agriculture: Inextricably Linked" taken from "Food and Agricultural Policy -- Taking Stock for the New Century," page 81 of pdf file

Sources of water:

There is surface water, groundwater, precipitation, evaporation, etc. Are there different rules (laws) for different types of water? Is it best to think about water as the hydrologic cycle, which implies that all waters are interrelated?

  • See pages 81-82 of the casebook for an introduction to the hydrologic cycle.
  • Hydrologic Cycle as described by Universtiy of Illinois.

Questions for your consideration:

  • Is a water right a property right? Is it protected as any other property right? Can it be bought or sold like any other property right? For example, can water users sell the water they have been using for industrial purposes to a growing city that needs it for municipal/domestic purposes, and keep the money for themselves?
  • Do water users own the water or do they own (have) the right to use it?
    • What does the North Dakota Constitution have to say about this?

      • See Article XI, section 3. "All flowing streams and natural watercourses shall forever remain the
        property of the state for mining, irrigating and manufacturing purposes."
    • How about the North Dakota Legislature (N.D.C.C. §61-01-01)?
      • "All waters within the limits of the state from the following sources of water supply belong to the public and are subject to appropriation for beneficial use and the right to the use of these waters for such use must be acquired pursuant to [state law ...]"
  • Do water users pay for the water?
  • What is the duration of a water right?
  • With water that is diverted, there is a difference between the amount that is diverted and the amount that is consumed. The amount that is not consumed will be returned to a watercourse, such as a stream or river; can the water user reuse the water or must the user allow someone else to use it?

    • Does the law recognize a difference between water that is withdrawn or diverted from its source, water that is consumed, and water that is stored?

    • What factors influence water usage and how does the legal system respond to those factors?


    • Does every request to acquire a water right imply a need to discharge or rid oneself of water that is not consumed?
    • Do most requests to acquire a water right assume the water is "discharge" from a previous use?
    • Will the law for appropriating water and law for discharging water become more intertwined in the future?
  • Is water a state issue or a federal issue? Where does the federal government fit into water issues?

    • ND State Water Commission -- state agency responsible for managing the state's water resources
    • Water law is generally state law, but...
    • Does the federal government need permission from a state to use water?
  • How do we handle international disputes?

Some terminology:

  • acre/foot is a quantity of water (43,560 cubic feet of water; approximately .34 million gallons; roughly 200 feet by 200 feet 1 foot in depth; or a football field with one foot of water)

  • cubic foot per second (cfs) is a rate of flow (about 7.5 gallons per second)

Additional questions:

  • Is water law evolving? Are the rules for water changing due to changed circumstances? Are the legally recognized uses changing, such as, more recognition of on-site uses?
    • Most prior appropriation states use a permitting process to determine who has the right to use water. Some riparian states now use a permitting process. Thus the idea of "just look around" is no longer the method used to determine who is using the water or whether water is available for another use.
    • Should water management issues be addressed by watershed or waterbasin, rather than political boundaries?
  • Are water users required to adopt technology that will reduce the amount of water needed for their purpose? For example, must they invest in pipes, rather than rely on open ditches, to reduce the amount of water needed to irrigate their land, thereby making water available for someone else's use?
  • Are there rules for shifting water from one use to another use, or from one location to another? What is the legal relationship between a water right and the land on which the water is being used? Can a water user shift water from a domestic use to an industrial use without seeking permission from the state? Can water users transfer their water right to another user without permission from the state?

Bottom line: The problem is "not having the quantity and quality of water when and where it is desired."

The following sections will hopefully answer many of the questions posed on this page.

The next section introduces the doctrine of prior appropriation which is the dominant water appropriation scheme in the western US.

Last updated January 12, 2011

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January 12, 2011