Best if printed in landscape.
I change my use of the water?
that beneficial use is the basis, measure and limit of a water right. This
section of the chapter will cause us to more closely consider the meaning
of "limit." For example, am I limited to using the water on just this
land, or can I transfer the water to another tract? Can I transfer the
water to another user? Can I change the use? Can I change when I use the
water? Can I change the amount that I consume and thus impact the amount
that flows back to a watercourse? Can I change the point of diversion?
Can I change the point of discharge? Can I change the quality of the water
that returns to the watercourse?
- What are the limits
on how I can use the water?
that one of the basic principles of prior appropriation is that my actions
cannot interfere with or harm other appropriators, except if there is
not enough water and my right is superior (prior) to the other users'.
issues reflect our understanding that one use of water impacts other uses
I change the use of the water? What are the limits on how I can use the
Highline Canal & Reservoir Co. v. City of Golden, Colorado, 1954
(p. 197 of Gould's 7th ed.)
- City of Golden
petitioned for a change in the point of diversion. It had recently purchased
irrigation rights and wanted to convert them to municipal uses.
- Water is a property
right, it is subject to sale, its point of diversion can be changed,
and its use can be changed. But other users from the same source cannot
be injured by the change, and the burden of proof is upon the party
petitioning for the change.
- Junior appropriators
have vested right in the continuation of the stream conditions as they
existed when they acquired their appropriation.
- Irrigators (the
prior appropriators in this case) cannot waste water, extend the use
of their water, or lease (to another user) water they (the irrigators)
are no longer using.
- Changes in use
of the water right should not injure subsequent appropriators.
- Trial court findings
did not align with its order (found no injury if 1.2 cfs were changed
but then ordered 1.76 cfs to be changed).
- General injury
to the stream does not mean "no injury to the junior appropriators."
Instead, if the change would deplete the source, conditions should be
imposed to counteract the loss, and if the loss cannot be counteracted,
the petition to change the point of diversion should be denied. Quantity
of consumptive use and return flows after the change in the point of
diversion can be considerations in deciding whether the change will
be injurious to junior appropriators.
- It is the purpose
of the law to protect all appropriators.
- Transfer raises
questions about changing a water right without losing priority.
- Transfers are necessary
responses to changing conditions. Should transfers be determined by
administrative fiat or market forces?
- What is the criteria
for allowing the transfer of water rights? "No injury." We cannot overlook
that one use can impact another use; or that changing one use can impact
another use. So the issues include can I change the quantity consumed,
the amount available as return flow, the dates of use, the timing of use,
the quality of remaining water or return flows, etc.
- Is "historic use"
the limit of how water can be used in the future? That assures that
other users will not be impacted by the change, but it also "locks"
the water into its current application and provides little flexibility
for it to be changed in response to change needs and changing technology.
- Does the rule of
"no-injury" make economic sense? Does it allow our resources to be put
to their "best" use?
- Why do the rules
for "transferring" water rights seem more concerned about junior appropriators
(those rights that are subordinate to the right being transferred) than
about senior appropriators (those rights that are superior to the right
- What is the procedure
to transfer a water right?
§61-04-15 Assignment or transfer of water permit
§89-03-02-08 Assignment to another person
- N.D.A.C. §89-03-02-09
Transfer to another parcel
- N.D.A.C. §89-03-02-10
Change in location of use
§89-03-01-10.1 Temporary water transfer for irrigation
- Also see
"Transfer of an application to another parcel" (N.D.A.C.
§89-03-01-3.1) and "Assignment of an application to another
person" (N.D.A.C. §89-03-01-03.2).
§61-04-15.1 Permit holder may change point of diversion without loss
of priority date if approved by the state engineer after determining that
the change will not adversely affect other appropriators.
§89-03-02-01 Change in point of diversion and change in purpose
- N.D.A.C. §89-03-02-11
Increase in pumping rate
Note: these changes and transfers must be approved by the state engineer (see N.D.C.C. §§61-04-15 and -15.1) and that notice must be given to surrounding landowners as if it was an application for a conditional permit (N.D.A.C. §89-03-02-05). Also note the criteria for granting these changes or transfers.
reasonable proof that such assignment or transfer can be made without detriment to existing
- "... if the state engineer
determines that the proposed change will not adversely affect the rights of other
statute on conveyance of water right
- Who has the burden
of proving no adverse impact -- the party requesting the change (to
establish there will be no adverse impact) or the party resisting the
change (to establish that the change will have an adverse impact)?
- Rules of transfer
apply to perfected permits as well as conditional permits (i.e., applications).
- Can I change the
amount of water I consume, and thus also impact the amount of water
that returns for others to use?
- Do we have the
technology to determine the impact of making changes before changes
- Should water rights
be measured in terms of quantity consumed, rather than quantity diverted?
- Are there adequate
facilities to accommodate transfers of many water rights? Is there a
practical limit to the transferability of water rights?
is the criteria the agency must apply when deciding whether to allow a
change in the use of the water?
v. Morgan, Utah 1989
(p. 207 of Gould's 7th ed.)
- Applicants sought
change in point of diversion, place and nature of use; plaintiff sued
state engineer; case was summarily dismissed for lack of standing; plaintiff
- Plaintiff claims
that applicant's change leads to annual flooding of plaintiff's land
and this is would detrimentally impact the public welfare.
- Engineer concluded
he could not consider plaintiff's concern since the engineer is limited
to considering the impact on vested water rights, and plaintiff does
not have any vested water rights in this case.
- Plaintiff argued
that state statute (sec 14) gives standing to any person aggrieved by
the engineer's decision. Statute (sec 8) requires an evaluation of all
damage to public and private property.
- Court ruled that
statute (sec 3) did not contemplate sec 8 and the plaintiffs did not
fit within sec 14.
- On appeal -- state
engineer is required to undertake the same investigation in a permanent
change as the statute mandates for an original appropriation; and plaintiffs
fall within sec 14.
- Complaint is reinstated.
- Is "public interest"
a criterion for a water transfer (like it is in initially deciding whether
to grant a water right)? Consider these sections of code:
§61-04-15 "can be made without detriment to existing rights"
- N.D.C.C. §61-04-15.1
"will not adversely affect the rights of other appropriators"
- N.D.C.C. §61-04-15.1
"Any change in purpose of use may be for a superior use only"
- Are temporary transfers
allowed? see N.D.A.C.
§89-03-01-10.1 -- transfer water for irrigation from one tract to
another tract to accommodate crop rotations.
- How about allowing
the market to determine water use?
- Water banking --
appropriators reduced their use so water could be used by others; this
was during a drought. After the drought, original users resumed
their prior operations. Those who drew water from the "bank" during
the drought paid and those who "provided" water to the bank received
payment. The "bank" reduced the time and cost it would have taken
for buyers to find sellers; the bank operated like a marketplace to
reduce transaction costs. The transfer was more a lease than a
sale, that is, a temporary (not permanent) transfer of water use.
a municipality force a water user to transfer their water right? Does
a city have the power of eminent domain to acquire water rights? Is changing
the use of water a local issue or a broader (statewide) issue?
of Thornton v. The Farmers Reservoir and Irrigation Co., Colorado,
(p. 213 of Gould's 7th ed.)
- City of Thornton
brought an action of eminent domain against the Irrigation Company to
acquire water and water rights, ditches and ditch rights.
- A 1975 statute
allowed municipalities to exercise eminent domain but 1) three commissioners
are appointed to determine the necessity of exercising eminent domain,
2) a city cannot condemn water rights for future needs in excess of
15 years, and 3) the city must prepare a community growth development
plan to be presented to the three commissioners appointed by the court.
- The district court
- The supreme court
reversed and ruled the 1975 statute unconstitutional as it applies to
Thornton, a home-rule municipality.
- The Colorado constitution
delegated to home-rule municipalities full power to exercise the right
of eminent domain; and once the city determined a necessity to condemn
the water rights, the decision is not reviewable by the judiciary (such
as, the three-member commission), absent a showing of fraud or bad faith.
- A legislative statute
is superior to an ordinance of a home-rule municipality in the case
of a conflict relating to a matter of statewide concern. However, the
constitution's explicit grant to home-rule municipalities of power to
condemn cannot be denied by a legislative enactment. Therefore,
the statute requiring a three-member commission is unconstitutional.
- DISSENT argues
that home-rule has exclusive control over local and municipal matters
only; and that matters of statewide concern remain subject to statewide
regulation. Exercise of eminent domain over water rights is a matter
of statewide concern and therefore is subject to the statute requiring
the three-member commission.
- Can the power of
eminent domain be used to shift water from one user to another? What
are the implications of forcing the former user to give up all their
- June 2005
-- US Supreme Court decided the Kelo
case addressing public use.
- Syllabus: Held: The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause...
Though the city could not take petitioners’ land simply to confer a private benefit on a particular private party, ... the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted “to benefit a particular class of identifiable individuals,” ... Moreover, while the city is not planning to open the condemned land—at least not in its entirety—to use by the general public, this “Court long ago rejected any literal requirement that condemned property be put into use for the . . . public.” ... Rather, it has embraced the broader and more natural interpretation of public use as “public purpose.”
... Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power...
The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including,
but not limited to, new jobs and increased tax revenue. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan’s comprehensive character,
the thorough deliberation that preceded its adoption, and the limited
scope of this Court’s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged
here satisfy the Fifth Amendment...
Petitioners’ proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported
by neither precedent nor logic. Promoting economic development
is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized... Also rejected is petitioners’ argument that for takings of this kind the Court should require a “reasonable certainty” that the expected
public benefits will actually accrue. Such a rule would represent
an even greater departure from the Court’s precedent ... The disadvantages of a heightened form of review are especially pronounced in this type of case, where orderly implementation of a comprehensive plan requires all interested parties’
legal rights to be established before new construction can commence.
The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan...
- Statement from the opinion: We emphasize that nothing in our opinion
precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.
Also see North Dakota's response to the Kelo decision: ND Const. Art. I, Sec. 16 (second paragraph).
Other North Dakota statutes
- Municipalities may purchase water -- N.D.C.C. §40-33-16; this statute does not expliclity address the authority to purchase a water right
- Municipalities may exercise eminent domain to build and operate a waterwork system -- N.D.C.C. §40-05-01(36); does not explicitly authorize the use of eminent domain to acquire a water right; also see N.D.C.C. §40-05-02(19).
See Colorado statute §37-41-113(3) -- "Such board has the power ... to construct, acquire, purchase, or condemn any canals, ditches, reservoirs, reservoir sites, water, water rights ..."
- Should we allow
water to transfer to the highest bidder?
- Should we force
a water user to "sell" their water rights when they do not want to? Does
their refusal to sell indicate that the offered price was not high enough?
- Is water so precious
that it should be allocated on the basis of criteria other than who
is willing to pay the most?
February 22, 2007