Best if printed in landscape.
often can I use the water? Can I reuse it, or must I allow another person
to use it once I have used the water?
of Ecology v. Bureau of Reclamation, Washington, 1992
(p. 219 of Gould's 7th ed.)
- A large federal
irrigation project diverts water from the Columbia River. Farmers pay
a fee to cover a portion of the cost of the federal project and are
allowed to use the diverted water for irrigation purposes. Return flow
waters accumulate and these are made available by the federal government
to other farmers for irrigation (again) but at a lower cost.
- Hanson owns land
within the boundaries of the federal project and on which a stream flows
with return flow water.
- Hanson applies
to the state for the right to use some of the return flows to irrigate
more of his land. Even though Hanson's use of the water will not interfere
with current users or foreseeable future users, the federal government
opposed the application.
- The state granted
- On appeal, the
issue is whether the return flow water is still subject to the water right held by the federal government.
- Holder of water
right owns no title to the water until it is diverted; and once diverted,
the holder owns a personal property; but does the appropriator's right
continue in the water even though it has been used, left the appropriator's
land, and entered a natural watercourse?
- One argument is
that the water remains the appropriator's as long as it is on the appropriator's
land; in that case, the federal government wins.
- The state's argument
is that the right to the water terminates when the appropriator has
relinquished possession without intent of recapturing, regardless of
the water's location; in that case, Hanson wins because the federal project has no intent to recapture the water (even though the water is still within the boundary of the irrigation district).
- The court tries
to accommodate both of these arguments; RULING: as long as water is
on the land, it belongs to the appropriator; once it leaves the land,
it becomes an issue of whether the original appropriator intended to recapture
- Hanson should not have been granted the water permit in this case.
§61-01-05 Reclaiming water turned into a natural or artificial watercourse
turned into any natural or artificial watercourse by any party entitled to the use of such water may
be reclaimed below and diverted therefrom by such party, subject to existing rights, due
allowance for losses being made, as determined by the state engineer."
an original diversion be increased to take advantage of anticipated return flows, but without having to actually recapture the return flow? The U.S. Supreme Court said no. The notion of recapture expects the user to actually recapture the return flows; the notion does not allow the user to find other water to substitute for the water that could be recaptured.
Could there also be an argument that expanding the original diversion would not be a beneficial use of the additional water?
is the right to recapture lost?
v. Franks, Wyoming, 1980
(p. 224 of Gould's 7th ed.)
- Waste water from
the plaintiff's (Fuss) land flowed in a ditch and under a road. Fuss,
without a permit, then used the water to irrigate another tract of land.
- Franks applied
for a permit to divert water from the ditch at a point that lied between
Fuss' two tracts.
- Fuss has the right
to recapture the water and use it on the same land.
- Fuss also has the
right to recapture the water to use on other land if Fuss acquires a
- Since Fuss met
neither of those in this case, and the water had left Fuss' first tract
and was on its way to a natural stream, Franks could acquire a permit
to divert it.
- As the authors
ask "why are junior appropriators entitled to have stream conditions
maintained when a senior appropriator transfers water or tries to recapture
water for use on different lands, but not when the senior recaptures
it for use on the same land?"
- Should conditions
or expectations for reuse be incorporated into the original permit?
- Can I change
my system (e.g., improve its efficiency) once you have grown accustomed to
the seepage resulting from my inefficient system? Does your use of water seeping from my system partially compensate you for the other impacts my project is having on your property?
- Am I liable for
damage that my return flows cause on your property? Are my actions adversely affecting your land?
I change the point of discharge for my imported water even though it adversely
affects a subordinated use?
v. City of Rawlins, Wyoming, 1979
(p. 227 of Gould's 7th ed.)
- City of Rawlins imported
its water, used it, and discharged it. The defendant then used the water for irrigation.
Rawlins will now revise its sewage treatment and discharge its water
below the defendant's land. Rawlins does not have to compensate defendants
for their loss of the water.
- The case involves
a change in the point of discharge but it also involves imported water.
A person who imports water should be allowed to reap the benefits of
their efforts; and a priority claim relates to only the natural water
in the stream at the time of appropriation.
- Importer can change
the use of the imported water, even though the change injures another
water user who is using the return flows of the imported water. Such
an injury is permitted because the same affect could result from discontinuing
the importation; the law will not force an importer to continue importing
beyond what the importer wants to import.
- Is this case a
change in use, change in place of use, or a change in place of discharge?
- The rules about
a change in point of diversion are not applied to a change in point
- A change in use
or in place of use requires a petition; the right to reuse (imported
water) is unrestricted. Since the right to reuse is unrestricted, the
right to change point of discharge is unrestricted.
- Court ruled that
state engineer and board of control had no jurisdiction.
- DISSENT: Would
not distinguish between natural water and imported water. Dissenting justice would have the law require
the city to submit project plans for review by the state engineer.
- It is assumed that
imported water cannot be abandoned. Thus the importer has the right
to recapture and reuse the imported water even though the water has
left the importer's location of the original use.
- Does it matter
whether the imported water has escaped into a surface watercourse or
- Unrecaptured return
flows from imported water -- are they available to be appropriated by
the state? Are they available for sale by the importer?
- Conserving water,
and thus increasing the return flow back to its original source, is
not new (imported) water; thus once it is released, the (conserving)
user has no right to the saved water. But until that water is released,
it is subject to the reuse rules described in the principle cases.
many of the questions from the introduction
of the class can you now answer?
February 28, 2007