Best if printed in landscape.
I required to use the permit system or is it optional?
Hereford Ranch v. Hammond Packing Co., Wyoming, 1925
(p.117 of Gould's 7th ed.)
- Can a lawful of
appropriation of water be made without a permit when the state statute
requires that after 1890 anyone intending to appropriate public water
must first apply for a permit?
- Permit is a condition
precedent to the right to divert and appropriate water.
- Opposing argument
was that permit is only a way to establish priority to a date before
the water is put to a beneficial use; and that one can still acquire
a water right without a permit but the priority would date from the
time the water is put to a beneficial use. This argument also contends
that a statute which requires a permit is unconstitutional.
- The court explained
that during the state's constitutional convention, delegates debated
whether a water right was established by initiating construction of
a water work or at a later time when the water was put to a beneficial
use. The delegates did not resolve this question. Instead, it adopted
a permitting process.
- There needs to
be state supervision with accurate information thus the permit system
will be the method of acquiring a water right; but permits will not
be denied except if demanded by public interest.
- States adopted
a system of water permits to replace the concept that a water right
is acquired and notice is provided by diverting water for a beneficial
- Several states
transitioned to a permit system only recently; e.g., Montana
in the early 1970s; Idaho had a dual system until the early 1970s;
California did not take this step until 1980.
- Note the "limiting" language of subsection 3 of the Montana statute.
- Colorado uses a
court system to administer water rights, rather than an administrative
agency. The state is divided according to river basins/systems.
- A permit to store
water may be distinct from a permit to use stored water; for North Dakota,
see N.D.A.C. § 89-03-01-01.3;
also N.D.A.C. §§89-03-01-1.4 and 89-03-01-03.3.
Dakota permit process
§61-04-02 Any person before commencing any construction for appropriating
water of the state shall first secure a permit from the state engineer.
if the water is for domestic, livestock or fish, wildlife and recreational
uses, no permit is required; but the user must notify the engineer of
the location and capacity of the work as soon as construction is completed;
these users could apply for a permit, however, to clearly establish
a priority date.
§89-03-01-09 Appropriation not requiring water permit -- "a water permit [even though] not required may be obtained
from the state engineer to clearly establish a priority date."
to the exception: regardless of the use, a permit is required prior
to constructing an impoundment capable of retaining more than 12.5 acre/feet
or a well from which more than 12.5 acre/feet will be annually appropriated.
- How much
water is 12.5 acre/feet? 4.25 million gallons; if used
equally throughout a year, it would be 11,645 gallons per day.
If an animal uses 35 gallons per day, 12.5 acre/feet would support
about 333 head of livestock for one year.
§61-04-6.3 The date of the application will determine the priority of a permit that was issued; and filing corrections to the application
within 60 days of notice of errors would not alter the priority date.
§89-03-01-01.1 Priority date
- N.D.A.C. §89-03-01-02
Correction of unsatisfactory application
- N.D.A.C. §89-03-01-03
Amendment of application
- N.D.A.C. §89-03-01-03.1
Transfer of application
- N.D.A.C. §89-03-01-03.2
Assignment of application
§61-04-05 After filing application, applicant will be required to
notify all landowners within 1 mile from the location of the proposed
§61-04-05.1 There will be time for comments before the state engineer
makes a recommendation. There will also be an opportunity to request a
hearing after the state engineer has made a recommendation.
61-04-06 If the four conditions (criteria) are found, the (conditional) permit
will be granted ("state engineer shall issue a permit if the state engineer
finds all of the following").
1. Rights of prior appropriator will not be unduly affected.
Proposed means of diversion are adequate.
Proposed use of water is beneficial.
Proposed appropriation is in the public interest; in determining public
interest, the state engineer shall consider
the benefit to applicant,
effect of the resulting economic activity,
effect on fish and game resources, and public recreation,
effect of loss of alternative uses for the water that might be made
within a reasonable time,
harm to other resulting from the proposed appropriation, and
f) intent and ability of applicant to complete the appropriation.
Public interest is discussed in several subsequent cases
§89-03-01-07 -- In North Dakota, a permit application may only be considered if works
are associated with the proposed application, but also review previous discussion.]
see N.D.A.C. § 89-03-01-01.2
Applicant is required to have an interest in the associated land.
Priority among competing applicaitons
If application is not approved
- N.D.C.C. §61-04-07
-- the state engineer's decision to not approve a permit can be appealed to the district court.
§61-04-06.2 The permit may contain limitations to protect the rights
of others and public interest.
§61-04-09 When the water is ready to be put to a beneficial use, the
state engineer will have the "works" inspected to determine capacity,
safety and efficiency. When satisfactory, the state engineer shall issue
a perfected permit.
We already discussed the length of time the permit holder has to put the water to a beneficial use --
City of Thornton v. Bijou Irrigation Co. and
City and County of Denver v. Northern Colorado Water Conservancy District
§61-04-26 A water permit may be recorded in the office of register
of deeds in the county where the affected land is located.
N.D.C.C. §61-04-02.1. Emergency or temporary authorization. "The state engineer may
authorize emergency or temporary use of water for periods not to exceed twelve months if the
state engineer determines such use will not be to the detriment of existing rights."
N.D.A.C. §89-03-01-10. Emergency or temporary authorization... the applicant must indicate the reason for the permit, quantity
of water needed, proposed point of diversion, type of use, place of use, rate of
withdrawal, source of water, dates of proposed use, and applicant’s address. The
state engineer will evaluate the request and, if it is granted, the state engineer will
list on the temporary authorization conditions that govern the appropriation.
An applicant for emergency use of water, if the situation warrants, may
telephone the office of the state engineer requesting immediate use of water.
Following an oral request and oral approval by the state engineer for authorization,
the above procedures must be completed.
The applicant for temporary or emergency appropriations is responsible for
all damages that may be caused to other appropriators and any other individual as
a result of an emergency or temporary use of water."
Availability of Water
much water is available? How is unappropriated defined?
Colorado River Authority v. Texas Department of Water Resources,
(p. 125 of Gould's 7th ed.)
water means amount of water remaining after taking into account all
existing uncanceled permits and filings valued at their recorded level.
- Commission will
grant permit only if there is unappropriated water and the appropriation
would not impair existing rights or be detrimental to public welfare.
- Based on computer
model, the staff study concluded very little water would be available
for appropriation; and that the proposed project would adversely impact
two downstream lakes.
- Applicant (water
district) argued there were uncanceled permits that were not using their
water and therefore there was unused (unappropriated) waters.
- The court concluded
-- uncanceled permits (unused permits) must still be treated as appropriated
water in the amount of the water permit. Unused water is not available
for reappropriation until the original permit is canceled.
- Note the concurring
opinion and motion for rehearing -- remand the matter, do not reverse
the lower court; by remanding this matter, the court preserved the water
district's original application and thus preserved that date of priority.
- Nebraska relied
on historical uses (assuming that historical use aligns with beneficial
use which is the maximum amount for water), rather than amount stated
- The purpose of
the rule to 'grant permits only if there is unappropriated water' is
to eliminate permits that will have only a limited likelihood of receiving
- Is unappropriated
water defined in the year of drought, average moisture, or high moisture? "Fairly
continuous and dependable."
- What about prior
water rights that have not yet been quantified, such as tribal and federal
reserve rights (which we have not yet discussed)? How are they accounted
for in determining whether there is any unappropriated water?
- Do not overlook
two basic principles -- 1) use water for a purpose consistent with the
best interests of the people of the state (NDCC 61-04-01.1 in defining
beneficial use), and 2) subordinate users receive their water right
aware of and subject to the rights of prior appropriators.
would a proposed use not be "in the public interest?"
Young & Norton
v. Hinderlider, New Mexico, 1910
(p. 133 of Gould's 7th ed.)
- Hinderlider filed
for a permit in October 1907 to appropriate 200 second feet of flow
and to construct a storage reservoir for 12,000 acre-feet to irrigate
- Young and Norton
applied for a permit in December 1907 to irrigate 5,000 acres from the
same stream, including a reservoir to store 10,000 acre-feet of flood
- Hinderlider's application
was rejected because a) it covered considerable public land and Young
and Norton's land, b) Hinderlider's project would cost nearly twice
as much per acre, and c) there was only enough water to irrigate 5,000
to 6,000 acres.
- On appeal to the
Board of Water, Hinderlider was granted the permit because the engineer
can reject an application for water permit based on public interest
only if the project would be a menace to public health and safety.
- District court
affirmed the Board.
- On appeal, the
court determined that public interest is broader than just menace to
public health and safety; the statutes are to be implemented to secure
the greatest possible benefit from the water for the public; it is contrary
to public interest to approve a project for which there is not enough
- Relative cost of
the two projects is a consideration, but is not conclusive; no finding
that cost of project was prohibitive (would a finding of a "prohibitive
cost" justify not granting a permit?).
- Settlers v. non-resident
may have some weight in the consideration but should not outweigh other
- Remanded with the
matter left open to the introduction of any facts bearing on the question
of public interest.
- Purpose of public
interest review -- address issues that are not resolved due to market
failure; the requirement of "public interest" causes administrative
agency to consider issues beyond those of concern to appropriators,
such as externalities.
- Externalities -- an economic concept that "many activities have an impact on 'neigbors'
who have 'no say' in the decision"
- The challenge
then is to devise a decision making process that considers externalities
as well as the concerns of appropriators
- Benefit/cost analysis -- analytical procedure that attempts to identify and quantify all positive
and negative impacts of a project or a decision, and then decide to
proceed with the project only if the total benefits exceed total costs
- B/C analysis
also allows competing projects to be assessed against one another
by comparing the B/C ratios for the projects; the project with the
largest B/C ratio would be considered the most desirable
- how does one
analyze future projects, especially projects that have not yet been
- Opportunity costs -- the benefits forgone when an alternative is pursued; restated, every
action has an implicit cost; that is, "what alternative projects cannot
be pursued if we decide to pursue 'this' project?"
- B/C analysis
and opportunity cost both assume "there is not enough (water or
other resources) to do everything."
- Rather than trying
to envision future projects in making a decision about a water application
today, how about "be willing to shift water from one use to another
when a 'better' use arises in the future?" Would such a strategy cause
- One argument
for not using such a strategy is that the first water right would
be subject to being discontinued. This uncertainly would discourage
anyone from investing in a long term water project. Thus the law
presumes that a water right will not be discontinued; but that leaves
us with the problem of how to compare today's proposed projects
to future projects that have not yet been envisioned?
- Subordination --
the court upheld the agency decision to grant/enforce a water right
that was explicitly subordinated (at the time the right was created)
to alternative future uses.
- Beneficial use
v. public interest --
§61-04-06(4) appropriation must be in the public interest.
- What is the
relationship between the definition of beneficial use (N.D.C.C.
61-04-01.1(1)) and the public interest test (N.D.C.C.
use means a use of water for a purpose consistent with the best
interest of the people of the state.
- In determining
public interest, the state engineer shall consider a) the benefit
to applicant, b) effect of the resulting economic activity,
c) effect on fish and game resources, and public recreation,
d) effect of loss of alternative uses for the water that might
be made within a reasonable time, e) harm to other resulting
from the proposed appropriation, and f) intent and ability of
applicant to complete the appropriation.
- does not
include availability of "unappropriated water" as a criterion
impacts on fish/game and recreation as considerations, even
though these uses are not allowed to acquire a water right (unless
they involve a "works")
is the definition of public interest?
v. Dunn, Idaho, 1985
(p. 138 of Gould's 7th ed.)
- Trout Co. was issued
a permit for fish propogation and hydropower generation.
- Court remanded
the decision because there was inadequate consideration of 1) financial
ability of applicant to complete the project, and 2) the local public
interest with respect to the project.
- Permit was again
granted after changes to the project.
- Court reversed
and remanded for a second time.
- Appealed to the
state supreme court which upheld the remand.
- Financing issue
was adequately addressed by the department.
- Local public interest:
affairs of the people in the area directly affected by the proposed
use; which means including any locally important factor impacted by
the proposed project.
- Statute: Streams
be protected against loss of water supply to preserve the minimum stream
flows required for protection of fish and wildlife habitat, aquatic
life, recreation, aesthetic beauty, transportation and navigation values,
and water quality.
- Alaska's statute
-- benefit to applicant, economic effect, loss of alternative uses,
harm to others, effect on navigation or public waters, and intent and
ability of applicant to complete the project.
- Also: minimum flow,
discourage waste, and encourage conservation
- But public interest
should be read broadly to secure the greatest possible benefit from
- Relevant elements
and weights will vary among local needs, circumstances and interests.
- Design plans should
be sufficient to apprise the public of the efficacy of the proposed
use and its potential impact.
- The court stated
that the statement "appropriator's rights prevail over riparian rights"
fails to account for the state's policy of providing for minimum stream
flow (public interest and public trust doctrines) -- court appears to
be declaring minimum stream flow to be a riparian right; the court does
not distinguish between an appropriator's right to divert and the right
of a riparian land owner to divert; nor does the court distinguish between
a riparian land owner's right to divert and a minimum stream flow.
- Water permit v.
water quality issues: Water resources should condition issuance of permit
on a showing by the applicant that a proposed facility will meet the
mandatory water quality standards. There is authority to withhold a
permit until there is a design proposal that appears to comply with
water quality standards. Health department has right to be heard in
proceedings before the Water Resources.
- Nevada -- state
engineer specified guidelines for assessing public interest.
- States include
game/fish and recreation as part of public interest criteria.
- Are impacts on
the environment and endangered species considerations in determining
- Imposing conditions
in permit is a way to address public interest considerations; see N.D.C.C.
- Imposing conditions
in permit as an alternative to an in-stream flow appropriation; is this
adequate protection for an in-stream flow?
- How are competing
public interest considerations weighed against one another?
- Using water to
address other issues, such as land-use issues (e.g., the next case).
public interest imply a fiduciary responsibility on the state? How is
that responsibility fufilled?
Plainsmen Association v. North Dakota State Water Conservation Commission,
North Dakota, 1976
(p. 151 of Gould's 7th ed.)
- United Plainsmen
sought to enjoin State Water commission from issuing permit for energy
development until there is a comprehensive short- and long-term plan
for conservation and development of the state's natural resources.
- Does statute mandate
a planning responsibility? Court says no mandate.
- But it is a significant
policy statement -- there still is a common law public trust doctrine,
and the state cannot abdicate its trust (fiduciary responsibility) over property which the whole
people are interested in; the property cannot be left entirely under
the use and control of private parties.
- The public trust
doctrine is broader than just conveyances of land. Statute defines public
waters and this requires at a minimum, a determination of the future
water needs of the state, and this determination involves planning.
There needs to be evidence of some planning.
§61-02-28 and §§ 61-01-26,
-26.1, and -26.2
- Water plans in
other states -- Kansas, California
- Must the plan be
- Are preference
statutes (e.g., N.D.C.C. §61-04-06.1) a type of "legislative planning" of
- Are agency conditions
in permits a type of planning?
- Ecosystem management
-- holistic resource management --
- addresses all
resources, not just water;
- addresses only
environment concerns -- not other concerns (such as economic);
- can ecosystem
management address issues for the entire basin, and not be limited
to political boundaries?
- Department of Interior
-- Water 2025: Preventing Crises
and Conflict in the West.
Adjudication and Enforcement
determines who holds which water rights? Can an administrative agency
address issues that had in the past been resolved through litigation?
Investment Co. v. Carpenter, Wyoming, 1900
(p. 159 of Gould's 7th ed.)
- Plaintiff contends
that the 1890 legislation establishing a state board and a procedure
for determining water rights is unconstitutional. The argument is that
resolving the water rights can only occur in court.
- The court explains
that the state constitution provides for a "board of control," the first
legislature created such a board, and repealed the legislation authorizing
water issues to be adjudicated in the courts.
- The procedure the
board must follow includes
- notice to affected
- the engineer
measures and maps the water sources and water uses,
- take testimony,
- receive description
of project and open it to the public,
parties can submit information,
- the board conducts
a hearing, and
- the board's
decision can be appealed to the court.
- The board's action
leads to a settlement or adjustment of priorities and the issuance of
a certificate indicating relative priority among appropriators. It does
not result in a judgment granting damages or the issuance of a writ
to prevent the unlawful invasion of a person's rights or privileges,
that is for the courts.
- As between a court
and administrative board, a board with experience and peculiar knowledge
can solve the questions at less expense and with a larger degree of
satisfaction, but still give due regard to private and public interests,
conduct investigations, and ascertain individual rights.
- The board is making
an administrative determination; not a judicial determination. The administrative
proceeding secures evidence of title; its does not redress an injury.
to establishing water control boards or similar agencies, states relied
on litigation (adjudications) to determine the water rights held by appropriators. However,
a decision applied only to litigants, not to the entire water system. Yet
the actions of anyone in the water system impacts others throughout the
system. A challenge is how to resolve these intertwined issues.
- States began to
authorize "general adjudication" (all claimants within a water district
are joined) to reduce piecemeal, expensive; adjudications are time consuming and expensive. Also, courts
often did not have the necessary expertise or understanding of water
- States then began
to establish agencies (with the appropriate expertise) to address water
- Can an agency make
a general adjudication or does it need to be made by the courts? The
agency has the information and expertise, but the court has the legal
authority. See Texas where an agency's general adjudication is subject
to a mandatory judicial review.
- Legislatures must
proceed with caution to resolve water disputes or to clarify existing
water rights because any statute intended to resolve the questions may
be challenged as violating constitutional provisions that protect property
rights (including vested water rights).
- Another challenge
is to coordinate general adjudications among adjacent jurisdictions.
- How are new rights
added to an adjudicated system? Adhere to the permit process.
- Another challenge
is gathering the data necessary for an adjudication -- especially data
about actual use. See N.D.C.C.
§61-04-27 and N.D.A.C.
is the authority of an administrative agency?
v. Department of Ecology, Washington, 1993
(p. 169 of Gould's 7th ed.)
- Department of Ecology
decided that the water rights of ranchers were superior to those possessed
by the irrigation farmers, so the department ordered the farmers to
discontinue groundwater withdrawals.
- The question is
whether the department has the authority to issue such an order.
- An agency may only
do that which it is authorized to do by the legislature. An agency cannot
modify or amend a statute through its own regulations.
- The department
argues that its authority is derived from its enabling statutes; that
it is protecting senior water rights from encroachment by junior apppropriators. The
department also argues that it "tentatively determined" the relative
status of the water rights, and that the final determination would be
made by the Pollution Control Hearing Board, which generally hears appeals
from the department's decisions.
- Court explains
that the department's authority applies to the application process. Once
a permit is granted, it is a vested property interest, and the legislature
has entrusted the courts with responsibility of resolving conflicts
among water users.
- The court also
explains that neither the department nor the board has the authority
to adjudicate priorities between water users; that is, these entities
are forbidden from conducting hearings relating to general adjudication
of water rights. The department's role is to initiate the general adjudication
process in the courts.
- Department should
have initiated a general adjudication in the courts, rather than issue
- Who enforces a
water right, the agency or the private user?
§61-02-44 -- Controlling natural flow of stream deemed police
power - Court appointed water commissioners not to deprive state
water commission of its authority.
- N.D.C.C. §61-02-14
Powers and duties of the (state water) commission
- N.D.C.C. §61-02-23(1)(b)
and (2) Power to pursue suits to adjudicate water rights.
- State Water Commission N.D.C.C. §61-02-14 Powers and duties of the commission.
- State Engineer N.D.C.C. §61-03-01 State engineer - Appointment
- Also see N.D.A.C. chap. 89-01-01 Organization of Water Commission
- State enigneer "assists the commission by coordinating the operations of the commission and relieving the individual commissioners of administrative detail"
- N.D.C.C. §61-04-27 mandates annual report by water user; also authorizes state engineer to require measuring device. Also see N.D.A.C. §89-03-01-13: "The form for reporting water usage
... must include ... name of water source, amount of water usage, pumping rate ..."
- Where does the
enforcement occur, in the agency or in the courts?
§§61-02-42, 43, and 44.
commission may police and distribute to the owner of any such recognized
appropriation the waters due the owner upon request of such owner
and under terms agreed upon." N.D.C.C. §61-02-43.
- Are water rights
acquired outside the permit system enforceable? N.D.C.C.
- Does a private
party bring an action against the agency, other users, or both?
- Can a court remand
issues to the agency? Can the agency request that issues be taken before