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How 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?

Department 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 the permit.
  • 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 it.
  • Hanson should not have been granted the water permit in this case.

N.D.C.C. §61-01-05 Reclaiming water turned into a natural or artificial watercourse

"Water 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."

Can 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?

When is the right to recapture lost?

Fuss 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 permit.
  • 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?


Can I change the point of discharge for my imported water even though it adversely affects a subordinated use?

Thayer 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 of discharge.
  • 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.
    • What is imported water?
  • Does it matter whether the imported water has escaped into a surface watercourse or groundwater?
  • 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.

How many of the questions from the introduction of the class can you now answer?

Last updated February 28, 2007

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