Best if printed in landscape.
Subject to Appropriation
What water can be appropriated? What water is subject to the jurisdiction of the state? Can surface water by appropriated? Can "diffused surface water" be appropriated? Can groundwater be appropriated?
water on my land, if any, can I capture and use? Can I capture rain that
has fallen on my land?
v. Hiber, Wyoming, 1935
(p. 82 of Gould's 7th ed.)
- Hiber built a dam which
cut off the flow to Abramson; the state brought an action to enjoin
Hilber. The trial court ruled for Hilber and the Wyoming Supreme Court
- All water in natural
streams are property of the state -- was this draw a natural stream
that the state could control, or was this diffused water
that could be impounded without regulation by the state?
- Surface water that
is diffused over the surface, derived from falling rain and melting
snows, may be impounded by the owner of the land until it reaches a
- Watercourse -- well-defined
bed and banks and a current of water.
- Watercourse -- a definite
channel even though the flow is not constant
- Watercourse -- well-defined
substantial existence even though it is not enough to create itself
a bed and banks
- In this case, the
area was dry nearly all the time, has no banks, easily crossed by a
vehicle, small watershed, grassy condition; therefore, Hiber could impound
the diffused surface water.
§61-01-01 Waters of the state -- surface water excluding diffused
surface water but including surface water flowing in a well-defined
- N.D.C.C. §61-01-06 A watercourse
entitled to the protection of the law is constituted if there is sufficient
natural and accustomed flow of water to form and maintain a distinct
and defined channel. It is not essential that the supply of water be
continuous or form a perennial living source. It is enough that the
flow arises periodically from natural causes and reaches a plainly defined
channel of permanent character.
- N.D.C.C. §61-01-01 Waters
under the surface of the earth are waters of the state, including water
which flows in defined subterranean channels or are diffused percolating
- Does the law of appropriation
apply to springs? lakes? ponds? runoff retained to prevent flooding
- See quote from Melville
v. Salt Lake County that authors quote in the notes; p. 87 of 7th edition.
Relationship to Groundwater
Water of the state also includes groundwater, e.g. N.D.C.C. §61-01-01(2). Discussed in more detail in subsequent chapter of the text.
Do all prior appropriation states answer this question the same way?
I entitled to use the water that I save when I increased the efficiency
of my current use, or must I allow that water to be appropriated to another
Inc., v. Water Users Association of District No. 6, Colorado, 1984
(p. 88 of Gould's 7th ed.)
- This is a Colorado case so the parties
are before a water court.
- Application (RJA)
was denied its application for a "developed water" permit.
Applicant based its claim on having eliminated the loss of water through
evaporation by removing peat moss from an area of land.
- Developed water -- new water
not previously part of the river system; it is imported or nontributary
water; it is independent of the priority system; one who increases the
flow of a natural stream by adding water that otherwise would not reach
the stream is entitled to use the water. Developed water does not include
any increase in the natural stream resulting from a reduction in consumptive
- How does the concept of developed water relate to a plan of augmentation?
- Salvaged water -- tributary
water made available for a beneficial use through the elimination of
waste; will be appropriated according to the priority system.
- The court spends
time discussing the case of Shelton Farms where reducing water consuming
plants also did not entitle the person to additional water rights. Legislation
indicates that water saved through elimination of weeds or rendering
the surface impermeable cannot be used as part of a plan of augmentation.
- So the water saved in this
case was salvaged water, not developed water. Court agrees to denying
the application for a "developed water" permit.
- Does this rule
discourage water users from trying to eliminate waste?
- Are there broader
environmental impacts of eliminating natural conditions that "waste"
- This case,
although decided in 1984, arose from actions taken "in the
early 1970s." At that time, environmental concerns were
first being addressed at a national level, e.g., the Clean Water
Act was enacted in 1972. Thus environmental concerns were
not a critical issue at the time the peat moss and vegetation were
removed. The facts of this case may raise additional concerns
if they were to occur at the present time. Consider the implications
if this area was found to be the habitat for an endangered species.
Montana's statute on salvaged water; note the alternative approach for managing the use of salvaged water.
- Imported water may be "new" to this basin, but does the importer need a permit for
an appropriation of water to export from the original basin?
- Stored water --
is it developed (new water) or is it part of the basin? The authors
include a statement that the right to store water is subject to the priority
system, but that the right to use stored water is not. Review
note 3 on p. 93 of Gould's 7th ed. Water, once stored, has legal characteristics of developed water.
- Not all diverted
water is consumed; some of it returns to the source as return flows. Is
a change that leads to increased return flows developed water?
- Is there anything
such as "new" water or all are water sources interconnected?
- If a state does not appropriate
water for in-stream uses (see discussion of beneficial use), are there other ways for preserving natural
conditions? See Wild and Scenic Rivers Act (16
U.S.C. §§1271-1287); also N.D.C.C.
U.S.C. §1271: "...selected rivers
of the Nation which, with their immediate environments, possess
outstandingly remarkable scenic, recreational, geologic, fish and
wildlife, historic, cultural, or other similar values, shall be
preserved in free-flowing condition, and that they and their immediate
environments shall be protected for the benefit and enjoyment of
present and future generations..."
61-29: preserve the Little Missouri River as nearly as possible
in its present state which shall meant that the river will be maintained
in a free flowing natural condition, without impoundment, diversion,
straightening or other modification; but then there are exceptions
for agriculture, recreation, flood control dikes, diking and riprapping).
February 8, 2007