Best if printed in landscape.
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
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.
will primarily discuss acquiring water and spend less time discussing
the disposal of water.
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
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 (firstname.lastname@example.org) 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
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?
are perhaps five ways to specify who has the superior water right:
- 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
- those whose land is adjacent to the water source (surface
or groundwater) have the right to use the water,
- government allocates water among competing users (e.g., an administrative agency decides
who gets the water),
- water is bought and sold in a marketplace and
those who are willing to pay the most will be able to use water, or
- government/legislature specifies priority of uses and low priority
uses will not be allowed to use water if there is not enough for everyone.
one theory better than the other?
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.
of state water resources policy; Findings and declaration
of policy; and Statewide water development goals.
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?
materials emphasize the prior appropriation doctrine of the
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.
types of water uses:
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
uses: swamps, wetlands, vegetation, wildlife
Dakota statutory law defines water uses (N.D.C.C.
wildlife, and recreation
or public use
is a major user of water in the western U.S.
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.
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
"Emerging Challenge Water and Agriculture: Inextricably Linked"
and Agricultural Policy -- Taking Stock for the New Century,"
page 81 of pdf file
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?
pages 81-82 of the casebook for an introduction to the hydrologic cycle.
as described by Universtiy of Illinois.
for your consideration:
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
- Do water users own the water or do they own (have) the right to use it?
water users pay for the water?
is the duration of a water right?
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 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?
- How do we handle
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)
foot per second (cfs) is a rate of flow (about 7.5 gallons per
- 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?
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?
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.
January 12, 2011