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Priority

Who has the superior water right? What date is the basis for establishing priority? How soon must the water be put to a beneficial use?

City and County of Denver v. Northern Colorado Water Conservancy District, Colorado, 1954 (p. 55 of Gould's 7th ed.)

• The city of Denver was intending to divert water from the western side of the continental divide for use by the city on the eastern side.
  • 1914 -- examined the western slope
  • 1921 -- employed a firm to survey the area of Fraser and Williams Fork
  • 1922 -- preliminary survey and filed map and statement with state engineer -- Blue River
  • 1926 -- another survey showing (second) lower tunnel -- Blue River
  • 1927 -- another filing showing a third site for the tunnel
  • 1941 -- additional engineering work showed a dam and reservoir, and relocated tunnel
  • 1946 -- work began on this last tunnel
• Denver claimed priority based on 1921 and 1927
• Conservancy District claimed priority date of 1937 and opposed Denver's claims
• District court granted Denver a water right based on smaller tunnel with a priority date of 1946
• Denver appealed.
• Supreme court upheld district court.
• An appropriation is not complete until actual diversion and use is completed, but the right relates back to time the first open step was taken giving notice of intent to secure the water right.
• The right to relate back is conditional in that construction of the project be pursued with "reasonable diligence," and the applicant have a fixed and definite purpose to take the project and carry it through.
• Surveys, preparation of maps, acquiring rights of way and option, obtaining a contract to carry water through the tunnel, drilling test holes, clearing timber, are sufficient to satisfy requirement of reasonable diligence.
• But Denver spread its activities over 20 years, whereas in the case being relied on for precedence, the applicant made the efforts in a 5-year time span.
• Diligence -- steady application, constant effort, doing an act or series of acts with all possible expedition, with no delay except such as may be incident to the work itself.
• Court argued that Denver did not even arrange financing for the project during the 20 years; therefore priority was granted on the basis of the later date.
• Dissent:  Some changes in the plan can be tolerated without the loss of priority.   When is construction on one part of a large project enough to protect the entire project? The dissent would answer this question as: when the part relates to a single integrated purpose so that progress on one part has a direct bearing on another part.  Interruption in the effort due to depression and war -- uncontrollable events -- justify the slow progress in construction and financing.

Processes for Determining Water Rights

A basic premise of prior appropriation doctrine is that the user who first puts water to a beneficial use has the highest or best legal right to continue to use the water. During times when there is not enough water for all users, the last person to put the water to a beneficial use will be the first one required to discontinue their use. Restated, priority determines relative legal rights among users appropriating water from the same source, and priority is based on the date the user first put the water to a beneficial use. A challenge is how to determine and document when a user put water to a beneficial use.

• The legal system relied on the courts to resolve disputes involving priority dates but this system became cumbersome (and perhaps inconsistent) as each appropriator litigated with each other appropriator. 
• The next step to simplify the process was for the courts to adjudicate the water rights (quantity, priority, etc) for all appropriators drawing from the same source (such as a river) in a single judicial action.  This is referred to as a general adjudication.
  • For example, see Arizona's §45-251(2).
  • Colorado relies on water courts to administer its water law (see Colorado Statutes §37-92-203).
• In North Dakota and several other states, priority dates from the time the user files an application for a (conditional) permit, or putting the water to use if a permit is not needed. See N.D.C.C. §§61-04-06.3 and 61-04-02. Also see N.D.A.C. §89-03-01-12.
  • Restated, priority dates from when the project was started; not when the water was put to a beneficial use. This legal principle of "relation back" recognizes the investment that often is needed to construct a water project.

Prior to permit systems, the earliest that priority could arise would be when the first step of the project was taken. See author's note for the idea that priority may date back to a time before applying for a permit (notice of intent to file an application in New Mexico).

How much time does an appropriator (the holder of a conditional permit) have to put the water to a beneficial use?

• The amount of time can be "as long as it takes provided the appropriator is using reasonable diligence to complete the project throughout this period;" e.g., Colorado.
  • North Dakota -- state engineer can set a time in the conditional permit. N.D.C.C. §61-04-06.2.
• Principle of "reasonable diligence" is to prevent someone from acquiring a right in the water without intent of putting it to a beneficial use.  Recall that intent to use the water is one of the basic requirements of acquiring a water right.

Are there circumstances in which an interruption in reasonable diligence will be tolerated? Financial? Legal? Physical? Health?

• In North Dakota, there can be extensions of time for "good cause." N.D.C.C. §61-04-14.
• N.D.A.C. §89-03-01-12. "Where the time has expired to put all or any portion of the water of a conditional water permit to the beneficial use named in the permit, the state engineer will notify the permittee of this fact. The state engineer will provide the permittee with a form upon which the permittee may request an extension for applying the water to the beneficial use and to explain why an extension should be granted."

• The requirement of reasonable/due diligence has been codified in some states.

• Can a conditional permit be cancelled (for lack of reasonable diligence) without the due process of notice and right to be heard?
  • Montana -- M.C.A. §85-2-313. Provisional permit.
  • Montana -- M.C.A. §85-2-314. Revocation or modification of permit.

How quickly must the state take action on a permit application?
Priority dates from the time of filing the application; can a state agency protect an undeveloped water right by "sitting on an application" and thus not triggering the requirement that the applicant must initiate development with reasonable diligence? Or is the agency required to respond to an applicant within a specified period?

• Montana -- M.C.A. §85-2-310. Action on application. (1) The department shall grant, deny, or condition an application for a permit in whole or in part within 120 days after the last date of publication of the notice of application if no objections have been received and within 180 days if a hearing is held or objections have been received.

Must subordinate users always discontinue their water use during shortages?

Basic rule -- in times of water shortages, subordinate water users must discontinue their water usage so the water is available to be used by those with priority. But, must a subordinate water user relinquish their use of water if that action will not improve the priority users' ability to receive water?

State ex. Rel. Cary v. Cochran, Nebraska, 1940 (p. 64 of Gould's 7th ed.)

• Central Power and others brought an action against the state to require the state to properly administer the irrigation laws of Nebraska. Central Power had priority to water in the Platte River as of 1882. Central Power contends that the state, by allowing junior appropriators to use water, is damaging Central Power's right to the water.
• The Platte River loses water as it flows downstream due to evaporation and percolation.
• The state administrators allowed the upstream junior appropriators to use the water rather than have it "lost" to nature.
• Central Power argues that all subordinated water right holders upstream from the Kearney Canal must cease their use if there is not enough water to fill the priority rights at Kearney canal.
• However, due to the heavy loss of water, the trial court concludes it would be an unjustified waste to attempt delivery to the Kearney Canal (essentially under the reasonable use theory that we talked about previously).
• On appeal: water rights are subject to regulation by the state by virtue of its police power. But the state administrator cannot change priorities. Instead, the administrator must decide whether use of the water by junior appropriators would damage the senior appropriators. If the answer is no (that is, the senior appropriators would not receive any more water even if the junior appropriators' use was restricted), the state administrator can allow the junior appropriators to use water.
• This court would not allow state administrators to weigh or consider the loss of the water as it flows downstream to the priority user. That would give the administrators too much discretion.

• Restated, as long as discontinuing an upstream subordinate use allows more water to reach the downstream priority user, the subordinate use must be discontinued even though this leads to a substantial loss of water as it flows from the upstream users to the downstream users.
  • Does this rule lead to inefficent use of water?
• It is referred to as "call" when a user with priority demands that subordinated uses be discontinued, such as would be necessary during time of a water shortage.

• During time of a water shortage, why not proportionally reduce each users' amount? Is there a physical reason, or just a political/legal reason?
  • Consider the note on pp. 69-70 (Gould's 7th ed.) wherein the commentator suggests that priority is not strictly enforced.

 

• This Nebraska case implies that a subordinate use will not be discontinued if that action will not benefit the priority user (futile call).
• Can a senior appropriator "call" on subordinate users of tributary streams? Or are tributaries administered as being a water source separate from the main stream or river? See N.D.A.C. §89-03-01-08.

• Is a use limited to a particular time of the year, or may the appropriator draw the water whenever it can be put to a beneficial use?
  • N.D.C.C. §61-04-06.2. "The state engineer may issue a permit subject to fees for water use, terms, conditions, restrictions, limitations, and termination dates the state engineer considers necessary to protect the rights of others, and the public interest."

Will a subordinate domestic use have priority over a prior use for irrigation? Will a particular type of water use prevail over a pre-existing alternative use?

Phillips v. Gardner, Oregon, 1970 (p. 72 of Gould's 7th ed.)

• Watermaster threatened to cut off plaintiff's domestic water supply and drain their impoundment in order to provide water to a downstream priority water user.
• Court enjoined watermaster from cutting off the domestic supply based on 1893 statute.
• Court of Appeals disagreed and interpreted the 1909 statute as repealing conflicting law and that "time of appropriation" will determine priority.

"Type of use" did not take precedence over "time of use" in determining priority.

• N.D.C.C. §61-04-06.1 -- preference among uses is relevant only among competing permit applications; see N.D.A.C. §89-03-01-11 for definition of competing applications.

Again, consider the comments included on pp. 69-70 of Gould's 7th ed. Also note the South Dakota and Utah statutes described on p. 75 (e.g., domestic use is highest use).

Can a new use be developed as long as the water it consumes is replaced?

Cache La Poudre Water Users Ass'n v. Glacier View Meadows, Colorado, 1976 (p. 75 of Gould's 7th ed.)

• Developer of residential lots filed two applications for approval of a plan of augmentation.
• Water users association objected.
• Developer owns shares of irrigation company entitling it to stored and direct flow water.
• Developer will use water from wells for domestic purposes and use stored water to replace the well water that is consumed. Developer will allot 26.7% of the water to in-stream flow to replace the 25% of the water that historically was return flow.
• Water association argues there must be 100% replacement of the well water or the senior appropriators will be harmed.
• Plan of augmentation is a plan to increase supply of water, and will be approved if it does not injure vested rights.
• Where senior users can show no injury, they cannot preclude a beneficial use by another. Water is available if the new use will not cause injury to existing users.

• Subordinate users can substitute water to meet the needs of downstream priority users.

Priority users cannot expand or change use if that will adversely impact subordinate users (e.g., N.D.A.C. §89-03-02-11), but...

Priority users are not protected from every injury or change that may occur from a new use. N.D.C.C. §61-04-06.3 "Priority ... does not include the right to prevent changes ... if ..."

How to move water from one use to another -- transfer? dedication? rotation among users?

Last updated January 31, 2007

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