Public Lands and Natural Resources Law: LACJR..................Last Update: March 11, 1996

Water Rights on Public Lands

Following is a very short course needing revision...these notes were done in a hurry so expect some revisions.......
See Coggins, et al., 1993, Federal Public Land and Resources Law, 3rd ed., Ch. 5. pp. 363-421.

Introduction

Water is critical to life; and to economic success in the arid west: 90% of all water allocated in the eleven western states is used for irrigation.

Land management agencies hold water rights as an individual person would, and they fall under the heading of "Person" in the adjudication of water rights.

The management of lands adjacent to streams -- whether it involves timber harvesting, grazing, mining or drilling -- has implications for stream water quality. Many uses cause erosion. Erosion of soils leads to sedimentation, increased turbity, perhaps an increase in temperature and quantity of runoff. This is not only significant from a practical standpoint, but from a legal one as well, because a water right is defined by quality factors as well as quantity and time factors.

Acquisition of water rights / Resolution of conflicts

The allocation of water is traditionally a matter of state law, but a limited role for federal government exists. Property, Commerce, Treaty and Supremacy clauses of the Constitution provide ample authority for Congress to legislate on water issues -- remember that valid federal laws will preempt conflicting state laws. Intrastate conflicts are resolved by state water law.

Interstate conflicts: resolution may be by one of three ways:

i. Congressional Apportionment by Legislation
Congress can legislate the allocation of water among states, as it did with regard to the Colorado River, and Congress can affect state water law when it legislates or regulates flows for navigation and flood control purposes, or for water pollution control purposes.
ii. Interstate Compacts
Negotiated by states; require congressional approval before becoming valid.
iii. Judicial Review - Equitable Apportionment
The Supreme Court has original jurisdiction over stream adjudications between states -- interstate controversies -- and appoints a Master to hear the case and issue findings of facts, conclusions, and an order. The entire Court then reviews the Master's determinations for a final approval.

3 Systems of Water Law: Riparianism / Prior Appropriation Doctrine / Mixed

1. Riparianism
Derivative of English law, and applicable in eastern states where rivers and water are abundant. With numerous watersheds, sharing a communal resource via allocation based on proportion, fairness, equity, balancing needs makes sense.
English Rule:
"Natural uses" and right of riparian owners to a "natural flow" ; water must return to the stream -- riparian area only; no use outside the watershed.
American Rule:
"Reasonable use" -- nonriparian use is permitted if it meets criteria for reasonable use. Actual damages required for a claim or "call on the river". No title by prescription; such as in adverse possession of land.
2. Prior Appropriation (Colorado) Doctrine
Mining customs were the basis for the doctrine. Key concept: first in time, first in right.

Traditional requirements for a water right include:

  1. Intent to Appropriate
  2. Physical Diversion -- actual diversion
  3. Application to a Beneficial Use -- defined by law -- involved consumption of the water traditionally -- evolving concept
  4. Diligence in building diversion works was required; originally the date pertained to first efforts to construct the diversion works; ie the first acts which would give others notice of the intent to appropriate. Now the date is set by date of the application per statutory filing requirements.
Traditional beneficial uses (see KSAs Chapter 82a e.g.) include:
"Waste" is not allowed, but the definition of waste changes over time.

An appropriative water right is defined by factors such as:


The prior appropriation doctrine also means that:

Water rights are considered to be property which has value and can be transferred by sale or gift. Now in Kansas all transfers of water rights must be approved by the Division of Water Resources which administers all laws pertaining to water resources in Kansas.

Junior right holders are protected by the doctrine of vested rights -- a senior right cannot be sold to someone who will decrease the amount of the return flow and thus reduce the amount previously available in the stream (and relied on by junior right holders).

"Efficiency" = consumption rate, and cannot change in a transfer. Thus irrigation rights, which are very low efficiency in nature (because most water returns to the stream in theory) have little real value to a city looking for drinking water and other municipal or industrial uses because the consumption (efficiency) would be much higher in reality. Thus a city purchasing water rights from farmers may end up paying as much as eight times the "face value" for water rights. If a senior right is impaired the holder can legally make a "call on the river" -- demand that the enforcement officer, ie David Pope, Chief Engineer of Division of Water Resources in Kansas -- enforce his priority. Compliance with relevant state laws -- permitting system -- is of course required for holding water rights.

3. Mixture (California Doctrine)
Many western states, including California, Kansas, Nebraska, the Dakotas, Oklahoma, Texas and Washington incorporate both doctrines into their water law. But all western states have moved to the prior appropriation doctrine by statute. In Kansas, the riparian doctrine ruled until 1945. Under riparianism, individuals and families acquired vested rights by actual use of surface and ground water. After 1945, under the Kansas Water Appropriation Act, K.S.A. Ch. 82a Waters and Watercourses  82a-701 et seq., all water rights except for domestic use had to be acquired per the prior appropriation doctrine and the state's permit system.

Modern trends or changes: instream flows vs. diversions

Many states have enacted minimum stream flows legislation to protect fish, wildlife, recreation, and aesthetic values, incuding Kansas. But it is a state agency that has the water rights involved, and they are typically very junior rights because of the date at which the state legislatively set the minimum stream flows. Some states have applied the public trust doctrine to determine if diversions should occur. But not Kansas. See Meek v Hayes, 246 Kan. 99 (1990).

REVIEW

Water rights are usufructory, real property according to the statutes, but they are subject to adequate supply which is known to be not constant (like land). Prior appropriations doctrine is predicated on the principle that juniors will legitimately lose the water represented by their rights before seniors. The definition of beneficial use will change over time. Therefore, water rights are not as real property as land and buildings. The reduction of such rights, by ordering a reduction in quantity used for irrigation, for example, may or may not be a taking of property without just compensation under the Constitution. The state supreme court will probably have to decide the issue for Kansas sometime in the near future.

When there are conflicting uses on rivers within a state, appropriate administrative agencies, starting with the Division of Water Resources in Kansas, (or a court) will hold stream adjudications to determine priorities, rights and responsibilities of the parties involved.

Note that water planning at the state level in Kansas is done in the state Water Office through a state water plan and other efforts (SEE K.S.A.  82a-901 et seq.).

See also:
Public Lands page Lorn's homepage