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Judith Dworkin
Water Law 2013
Legal Control Cases & Materials Thompson, Leshy, and Abrams
Water Facts:
1 Acre-foot is enough to supply a family of 4 for 1 year.
1 cfs = 724 acre-feet per year.
Water duties for irrigation: 2-6 af/acre for irrigation. AZ uses 7 mil af/year.
CO River flow = 15 maf/yr
Where does our water in Tempe come from? Immediate supplier = Tempe municipal supplier; city treats the water and distributes
1. Salt River Project (via Salt, and Verde Rivers) and
a. SRP gets water through a network of reservoirs (for Phoenix Granite Reef Diversion Dam)
i. Reservoirs store water and control water flow (seasonal)
ii. Dams also generate hydroelectric power (i.e. Mormon Flat Dam)
b. SRP also pumps groundwater
c. SRP also purchases CAP water to be later bought by Tempe or Phoenix
d. Salt River is currently about full; this equals about a years supply
2. Central Arizona Project [CAP] (via Colorado River) and
a. CAP canal crosses at Granite Reef Diversion Dam
b. CAP water is lifted about 1000 ft. to reach Phoenix
c. CAP system only services Phoenix, Tucson, and areas along the canal
3. Groundwater
a. Non-renewable supply (Water Mining); finite amount
i. Possibly 100 years supply left
b. Recharge = rainfall percolating into the ground
i. Almost zero b/c of desert climate
c. Problems w/ Groundwater
i. Water Table drops (i.e. sinkholes)
ii. Cost = need more energy to pump deeper sources of groundwater
iii. Deeper you pump the quality decreases
Remedies to Long Term Situation (loss of water)
- reduce cotton production
- municipalities promote efficient water use
- reusing sewage water
- water harvesting systems (capture rainwater)
- attempt to get more CO River water
- desalinate ocean water
o requires electrical energy therefore expensive
o makes more sense for municipal use but not for agriculture
RIPARIAN WATER RIGHTS
History
- State settled b/f 1846 practiced riparianism (East Coast)
o Wettest states
- ND south through TX and west coast states (WA, OR, CA) initially practiced riparianism
- CA developed prior appropriation [Midwest and west coast states incorporated prior appropriation]
- Intermountain states came into the Union after prior appropriation had been established and adopted that system
o Physically driest states therefore adopted prior appropriation
Fundamental Rules
Riparian Rights = tracts of land that are contiguous w/ the waters edge
Riparian rights are based on property ownership; part of bundle of property rights; inherited from English common law.
Water can only be used on riparian lands.
Use is acceptable as long as it is not unreasonable.
Water does not have to be put to use to preserve water right.
If there is not enough water, is a pro rata distribution. (apportionment).
Natural Flow Rule riparians are entitled to have an unimpeded flow of the river undiminished as to quality or quantity.

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Natural uses (could be done as much as one wanted) = drinking, bathing, watering a garden, watering a domestic stock,
cooking
2. Artificial Uses = industrial (i.e. mills), farming, irrigating, diverting
a. Mills source of litigation may increase/decrease output, impound water which interferes w/ the flow (no longer a
steady stream); people upstream get flood
3. Problems = 1) Natural flow is extremely limited and inflexible to use b/c it will affect others down stream, and 2) user
couldnt remove/divert water from stream so water use was impossible; TF water rights are more tied up and affected by
neighbors rights and actions. Eventually Natural Flow was replaced by . . .
Reasonable Use Rule (modern) entitled to make a reasonable use of water on their riparian land, even if injures other users.
Snow v. Parsons Parsons runs an upstream Tannery and wishes to dump excess bark into the stream; Snow: affects his mill operation.
RULE To determine reasonableness should balance interests of various riparian owners. Factors: 1) Amount of harm to , 2)
benefit of use, 3) custom, 4) burden to avoid harm, 5) ease/difficulty for to avoid harm, 6) size/characteristics of the stream (i.e.
dumping a lot in a small stream = bad)
1. Not a factor = 1st in time (makes no difference if P was there 1st)
2. No redress for harm for injury incidental to a riparians reasonable enjoyment of water. Reasonableness is a constantly
changing standard
Change from Snow R.2d of torts imposes liability on a riparian that uses water unreasonably and another riparian is harmed by this
1. R.2d of Torts (pg. 57) Reasonableness: balance interest of riparian proprietor and society as a whole. Amount of riparian land
is not a factor (if you own riparian lands then you have riparian rights)
2. Factors = (a) purpose of the use, (b) the suitability of the use to the watershed or lake, (c) the economic value of the use, (d) the
social value of the use, (e) the extent and amount of harm it causes, (f) the practicality of avoiding the harm by adjusting use, (g)
the practicality of adjusting quantity used, (h) the protection of existing values of water uses, land, investments and enterprises,
and (no relief, damages, provide and injunction), and (i) the justice of requiring the user causing harm to bear the loss
Limitations on where water can be used (different rules varies by state):
1. Non-riparians have no right to use water even if their property is almost bordering the water
2. Source of Title Rule cannot buy riparian land and pump it to non-riparian lands (some states allow this)
3. Riparian landowner can obtain an injunction against use on non-riparian land if can show actual harm. (R.2d of Torts).
4. Some states look at reasonableness of use regardless of use on or off riparian land.
Municipal Use in Riparianism:
1. Municipality must acquire riparian land
2. Cities in most states give municipal suppliers power of eminent domain condemn riparian rights
3. Cities pay for change in value for land losing riparian rights.
Problems with Riparian System:
1. Vagueness and Uncertainty: Reasonableness factors
2. Lack of Security
a. For existing uses
i. A new upstream use can come along; may change the stream and your use
1. Dont know if you are going to win??
ii. New downstream use may start up and bring a lawsuit against you
b. Flip Side Riparian makes room for new uses and opportunities for change
i. Unreasonable/uneconomical uses
3. Everything is settled through Litigation
a. Costly
b. Unpredictable
c. Time consuming
4. 2-party System
a. Other interests that may be effected are not heard
i. Environmental uses
To Address these Riparian Problems:
1. replace riparian system with prior appropriation system
2. superimpose a permit system
a. if you want to make a new use of water, instead of just going out and doing it, you have to ask an administrative
agency
b. agency can consult other interests (no longer 2-party game) where other interests can be heard
c. (+) of permit system
i. Removes some uncertainty
ii. Gets it into an administrative agency
iii. Alleviates some litigation
What to do w/ already existing uses if you implement a permit system?

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make them come in and record their use

all existing uses are granted a permit (they get a free pass)
give existing users a grace period and grandfather them in
a. how long is a permit good for?
i. If permit is short-term then no security
ii. If longer term permit then you take away from true riparianism

PRIOR APPROPRIATION
Differences b/t Riparian and Prior Appropriation
1. Right to water
a. R = own the land
i. Never lose water right through non-use
ii. In a R system water right is dependant on R land
iii. Way to severe water right of land
b. PA = must put water to beneficial use
i. You can lose a water right through non-use
ii. Dont need to own land near water, but usually in PA system users own land b/c they have to put it to a
beneficial use
iii. In PA system water right depends on land which the water is put to use (may be non-R)
2. How much water can you use?
a. R = reasonable amount
i. Never quantified
b. PA = how much have you historically used
i. Your water right is quantified
3. Times of shortage
a. R = sharing of the shortage (reasonable to use less in a dry year)
b. PA = there exists a priority list
i. Seniors get shut off last
ii. Juniors get shut off first
4. If land is away from water source and ditch needs to cross anothers land
a. If public land, the govt. allows people to build these ditches on public land
b. If private land, diversion ditch could be built by offering money for the right to build
5. Land ownership gives no right to use water; but, practically, need land to use water or access to water (public land permit;
private land right-of-way)
6. First in time, first in right - have priority system; no sharing in shortage.
7. How obtain water rights? Statutes outline process.
8. Water rights established before statutes have priority and are governed by common law.
3 elements to establish a water right:
1. Demonstrate intent to appropriate: can do this by applying for a permit.
2. Actually divert water from stream;
3. Put water to beneficial use (then have perfected water right).
a. Due Diligence required: The application of water to a beneficial use must be diligently pursued; if you dont could
lose benefit of relation back doctrine.
b. Relation Back Doctrine: Once a party has perfected their appropriation by applying water to a beneficial use, the
date of the priority relates back to the date of intent/notice.
4. Upon completion of process, appropriator earns a license.
5. Lose water rights by failing to put water to use (abandonment/forfeiture).
Characteristics of an Appropriative Water Right:
1) Quantity of water = flow rate (measured in cubic feet/sec.)
2) Priority date first in time first in right = most senior appropriator, everyone else jr.
a) Relation Back Doctrine dates back to the actual application of the water
i) Requires Due Diligence
ii) (+) promotes investment
iii) ( ) people make claim of use but may never use it for such purpose [speculate]
3) Place/point of diversion = where water is diverted
4) Type of beneficial use (i.e. domestic, agricultural, private)
a) What is a beneficial use?
i) Not relative concept like reasonable use
ii) Basically means a productive use

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b) Water that is wasted is NOT a beneficial use
i) Courts are hesitant to say water was wasted
5) Place of Use
6) Season of Use [additional characteristic]
7) Total Water Use per Year (measured in acre/feet) [additional characteristic]
Feudal Calling the river demanding legally upstream junior river user to reduce use so your senior interest can be fulfilled.
In common law, this usually required a lawsuit
Now, administrative agencies in most states enforce the system.
How to Call the River
1) Go to Court inefficient, timely, and costly
2) Call upstate engineer or state river manager to respond
3) AZ there is no current system to call the river
General Stream Adjudications can initiate a legal proceeding on a stream that draws in all users to figure out all water rights (like
a class action). This results in a decree.
1. Paper Rights total water rights in a decree can vastly exceed total flow in the stream. Doing an engineering calculation to
determine water rights is an overstatement of water rights because the depended amount of water isnt always present or
usable, rights may be abandoned, or allocation might overstate beneficial use amount.
2. Return flow water applied to agricultural field but ends up returning to the stream underground and through surface runoff.
3. Consumptive use amount used that does not return to stream; includes evaporation, transmission losses etc.
4. Some junior rights are exercisable only in very wet years can replenish other water supplies during these years; generally
cheaper, better water.
5. Diffused sheet flow diffused (rain water on a hill) is non-appropriable.
6. Percolating ground water is non-appropriable
IN-STREAM APPROPRIATIONS
1. Why Keep Water Instream? Fishing, boating, other recreational activities, scenic beauty, and wildlife habitat.
2. Can You Establish a Water Right for Instream Flow?
a. ACTUAL DIVERSION: Traditionally, you could not get a water right for instream flow
b. Today req. to divert has been dropped in many states; you can get a water right for instream flow
3. Controversy
a. In-stream appropriations are controversial: precludes future consumptive use.
b. Affects future growth cannot call the river on Senior instream uses
i. Affects those who want to use water after; effect will be UPSTREAM
ii. DOWNSTREAM users may even benefit
c. Existing water right users remain unaffected
4. How would you limit instream flow appropriations? (prevent speculators from claiming instream right)
a. some cities/states dont allow individuals to have instream flow rights
b. states may require specific purposes (e.g. instream only for fisheries)instream right was statutorily created
c. AZ does not have special statutory provision for instream flow
i. Recreation, fish, wildlife in statutes are beneficial uses
ii. AZ has liberal policy in granting instream flow rights
Phelps Dodge v. AZ. Dept. of Water Resources ct. affirms instream flow appropriations that Forestry Service requested

WASTE
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Water not put to beneficial use; using more than reasonably need. 100% efficiency is NOT required. Ironic because excess
water can go back to stream.
2. Amount of water right quantity used; quantity used beneficially and not wastefully.
Fellers Waste Definition
Farmer A tomatoes
Farmer B alfalfa
- diverts 5 cfs
- diverts 5 cfs
- crop absorbs 2 cfs
- crop absorbs 4 cfs
- return to stream 3 cfs
- return to stream 1 cfs
- efficiency = 40%
- efficiency= 80%
*Feller says doesnt make sense to cut back Farmer As water b/c 3 cfs are going back to the stream and tomatoes may yield more
economic return (not necessarily waste)
Erickson v. Queen Valley Ranch Co. (pg. 168) Ds are upstream of P (Erickson) and are diverting water; P is using an inefficient
ditch to divert water and it is not a diversion for beneficial use.

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Rule: Appropriative right is measured as the amount put to beneficial, NOT amount diverted, NOT amount of ditch flow.
Rule: A method of diversion with heavy transmission losses is an unreasonable use.
REGULATING WASTE, ENCOURAGING SALVAGE
State Department of Ecology v. Grimes (pg. 173) (Relatively rare instance of regulation of water right because of excessive waste);
H: Court disregards historic rate of diversion in favor of a figure that the State Department calculated to be reasonable this is the
modern way of calculating water rights.
Duty of water amount of water per acre required to produce a crop. Depends on climate, crop, and type of soil
Imperial Irrigation District: Alleged Waste and Unreasonable Use of Water: John Elmore and farmers complaining against IID b/c
of mismanagement and caused Salton Sea to rise; canal system is imperfect b/c the CO River canal system is also flawed
RULE: no property right in the unreasonable use of water
RULE: Even if an appropriators transmission loss is reasonable, a junior appropriator can demand the water by paying for upgrades
RULE: unreasonable transmission the appropriators use is unlawful and must repair or replace the unreasonable delivery.

RECAPTURE
Salvage 2 types of Salvage
1. same stream cases seepage/run-off returns to the same stream it came from
2. different stream cases seepage/run-off goes into a different stream than from where it originated
Bower v. Big Horn Canal Assoc. (pg. 197) P sought to appropriate for water which seeped from Ds land.
Rule: An owner of land may always recapture waste and seepage water as against an adjoining owner who has been taking that water
1. Must be captured and reused within the original land and for the original purpose of the right.
2. Junior water user can divert seepage of senior user, but cant require seepage to continue no rights against the senior to
cause runoff.
3. Junior can get a water right to prevent 3rd parties access to the seepage
Salt River Valley Water Users Assoc. v. Kovacovich K is diverting seepage to another one of his farms after he efficiently saved
water being diverted to his 1st farm; basically transferring water on his own property.
Rule: If recapture runoff and use it on same land, its ok. Cannot use on different land, but there are exceptions.
1. Encourages initial waste a wasteful user lines ditches with concrete to get more water than initially appropriated; this
rewards waste.
2. Is there harm when lining canal? Yes, seepage was probably going to groundwater.
3. Under this analysis waster could grow crop that requires more water on the same land because Bower allows recapture on
same land.
Lambeye and Wedgworth (p. 204): downstream users wanted to appropriate return flow from irrigators.
RULE: downstream appropriators have no vested rights to return flow (codifies at 45-151(A))
WATER IMPORTERS
Stevens v. Oakdale Irrigation District (pg. 211) Oakdale is taking water from one river and some of the runoff went back into a
different stream; Oakdale eventually decided to recapture; Stevens (P) complains and says he is entitled to this runoff
H: Ct. says P gets right to prevent other 3rd parties from using the water but no right against senior appropriator (D)
Rule: Importer of developed water is free to recapture and reuse that water. Producer of an artificial flow has no obligation to
downstream users to maintain it. No action/remedy if recaptures water that was available to downstream user before recapture.
Runoff is not from stream by P but is developed water water that is brought into stream from another source. Fact that it is
developed water is important because diverter worked to bring water into watershed, and P has no reasonable expectation to
have that flow continue.
Arizona Public Service v. Long (pg. 201) Ranchers object to citys effluent sale to Utilities b/c they claim an appropriative right
I1: Whether P can contract to sell sewage to use on lands other than those involved in OG appropriation? YES
I2: Whether P must continue dumping sewage into the Salt River? NO
o Effluent can be a threat to public health and P can put waste to better use Cities need broad discretion in dealing w/
sewage/wasteThis contradicts Kovacovich ? court ignored it in their opinion.
Arguments for both sides

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A&T Kovacovich this case looks like where Cities are transporting sewage to use on another piece of land or to APSs
plant
APS Stevens water only gets to A&T through Cities efforts; if City wasnt there then water would never reenter the stream
Counter if City wasnt there it would come down stream anyway and not dirty
STATUTORY PERMIT SYSTEMS
Problems with common law prior appropriation system:
Lack of records old appropriative rights werent recorded; no record of transfers
Factual uncertainty
Relation-back doctrine relates back to when you apply for the permit
Didnt set a good way for municipalities to secure water rights almost impossible to anticipate future growth under this
system
Solution is permit system all Western states except CO which is almost purely judicial get decrees from ct.; 1st
conditional decree, then build and come back and get final decree; NO PI Test
Need permit from state to initiate appropriation of water or a change in water right (place, type, point of diversion, etc.).
This eliminates uncertainty and creates records.
Priority date is date of permit application.
Due diligence is clearly defined - permit specifies date at which diversion and beneficial use must be completed (i.e. permit
only good when project is completed)
Most Western codes have extended time period for municipalities to allow for growth.
Requirements to get permit:
Unappropriated water available (problem of paper rights, abandonment)
Notice requirement before permit granted
a. Opportunity for protest (some states have public hearings)
Public Welfare/Interest Test no permit granted if against the public interest (menace to public health/safety, conflict w/
vested rights, or not in the best interest of the public)
Arizonas Permit Statutes (purple attachment): *may need to check for lasted updates to statutes.
ARS 45-141(A) - waters of all sources, flowing in streams, canyons, ravines or other natural channels, or in definite
underground channels is appropriable. Definite underground channels is a vague term. Cant appropriate groundwater,
unless it is subflow underneath a surface stream. Groundwater is covered by the Groundwater Code.
ARS 45-151(A) -Waste or surplus wastes are not subject to appropriation unless flowing in a natural stream
Permit statutes were passed in 1919. Those with pre-1919 water rights dont have to have permits, but had to register their
water rts.
45-152 tells you how to apply for a permit from DWR.
45-153(A) delineates when permits will be approved or rejected.
o Permits will be accepted as long as the water will be put to a beneficial use,
o Use does not conflict with vested rights,
o Use is not a menace to public safety, and
o Use is not against the interests and welfare of the public.
45-157 Relative value of uses
o (applied for and pending applications conflict) deals w/ conflicting applications; gives preference to the relative
benefit
o first in time still applies; statute only goes into affect w/ conflicting applications
45-158 permit is not evidence of a water right. Must appropriate water, demonstrate appropriation, put to beneficial use,
and then receive certificate (certificate is evidence of a water right, but not conclusive evidence). Note 45-162 for
certificate.
Need to know if the water is fully appropriated to determine if your appropriation will conflict with someone elses vested
rights. However, this can be difficult because paper rights arent really accurate. Some states eliminate this requirement and
let the priority system do its work because if theres not enough water, the most junior appropriators wont get water anyway
while other states use the paper rights anyway. CO takes a compromise approach and wont issue a conditional decree unless
the applicant can and will put the water to use.
There are strong due process reasons why you should be able to challenge the certificate of another in court. (You werent
party to the original decision to issue the permitnotice and opportunity to be heard)
Note the time limits in 45-160. Actual construction must begin within 2 years of issuance of the permit. DWR will
estimate the time necessary for due diligence and this will be your completion date. It will not exceed 5 years after issuance
unless DWR concludes that the project needs more time because of extra work, financing, etc.
Public Interest Tests:
Existence of a PI test is an infringement on a pure prior appropriation system. It invokes the interests of all people, not just
competing claimants on a stream. The test also vests lots of discretionary authority in the agencies.

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Early interpretations of this test were very narrow only violated if the use violated public health or safety standards.
Sometimes test was interpreted to protect water that might be needed for future use. Some states issue conditional permits to
deal with this.
Examples of PI: recreation, wildlife/fish, legislative statements clearly defining interest (denial of water right to DOE for
Yucca Mtn. Nuclear Disposal Facility because of Nevadas statute stating that a nuclear waste site is not in the public
interest).
PI test is like reasonableness in riparianism - very subjective, and little guidance for its application. Some say that PI tests
turn prior appropriation into a form of riparianism. The idea that its important to keep water in streams is a very riparian
notion.
Both PI test and instream appropriations are ways to keep water in a stream. Instream flow appropriations are probably more
effective in protecting streams because they actually give a water right to keep the water in the stream. Its not an absolute
guarantee, but its less flexible and less subject to manipulation than the PI test.
Shokal v. Dunn (Idaho 1985). Fish, wildlife, beauty and recreation are part of the public interest, inter alia.
The burden of proof rests w/ the applicant that his use does not effect the PI
Those challenging the permit have the burden of showing harms to the PI
Central Delta Water Agency v. SWRCB (p. 223) a general statement of potential benefit is insufficient for water impound
(reservoir), need a specific benefit.
AZ has a PI test in 45-153, but its not well-defined.
Look to 45-157(B)(4) listing recreation and wildlife as of value to the public. However, you can argue that if the legislature
had wanted this to be the definition of PI, it could have just used this in the appropriate statute.
Transbasin diversion can do this under prior appropriation, not under riparian.
Area of Origin Protections:
Transbasin diversions - can be beneficial because it allows water to go where its needed, but removal of water has significant
impacts on the community of origin [i.e. limits economic growth (i.e. more agriculture, industry, population growth)
To guard against diversion a community of origin can
a. claim a violation of the PI test,
b. enact local regulations barring or limiting export of water, or
c. it can get statewide regulation controlling exports.
Protection of an area of origin is really antithetical to Prior Appropriation because: 1. gives special preference to use of water
in the area of origin; and 2. not first come, first served. This makes it similar to riparianism.
CA protects the community of origin by allowing the diversion but giving the community the option to take the water back
if/when needed. The statute has never been implemented. (footnote 15, pg. 241)
a. There are problems b/c how can a community even grow if it has no water. BUT, areas that fear a local community
may retake their water develop strategies to save and store water to try to avert this threat.
COs Watershed Protection law requires compensatory storage reservoirs in the area of origin to be built when water is
moved from West to East slopes. Some feel that this is wasteful because the water often isnt used.
MT allows any public agency to apply for a water right for future use. This way, you have some reservation of rights.
With permit systems, riparianism and Prior Appropriation are moving closer to each other.
In AZ, there is no area of origin protection for surface water. There is some for groundwater, but there are numerous
exceptions.

ABANDONMENT AND FORFEITURE

- Jenkins v. State DWR

1) Abandonment (pg. 248) is a common law concept that requires
a. Intent to abandon
b. Actual abandonment
2) Abandonment must be proved by clear and convincing evidence.
a. non-use of a water right is not enough to declare a per se abandonment of the right.
b. However, non-use for an unreasonable time may be evidence of intent to abandon.
c. Good faith attempts to sell are evidence of a lack of intent to abandon.
3) Abandonment is a question of fact for the jury.
1) Forfeiture of a water right is driven by statute
a. Non-use for the statutory period. (5 years)
b. Some statutes allow extension of time period by filing an application.
c. Some statutes allow a tolling of the statutory period where failure to use the water is due to wrongful interference
with the water right, or where it is due to circumstances over which the water right holder has no control.
2) If use of the water right is resumed after the five year period before any third parties make a claim to the water,
courts will NOT declare a forfeiture.
3) Forfeiture must be shown by clear and convincing evidence

AZ Forfeiture Statutes = 45-188 and 45-189

They apply to water rights created after 1919 because permit system was introduced in that year.
45-189 outlines a forfeiture proceeding with a hearing, etc.
Exemptions for Forfeiture = non-availability of water, military service, legal proceedings, etc.
Forfeiture and abandonment happen relatively infrequently.

WATER MARKETS/TRANSFERS

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Generally, an appropriation right goes w/ the sale of land unless otherwise specified; however, water may be severed from the
land and sold
Water transfers are important because of increasing urban growth and interest in instream flows. Transfers are great for
instream flows because it gives you a senior water right. This is why people get more upset about transfers than about new
water rights.
From an economic perspective, transfers can be beneficial. They put water to the highest and best use and they create
incentives to conserve. The problem with the economic model, however, is externalities. Others are affected by these
transfers, including downstream users, the respective communities, and the environment.
Legal Requirements for Water Transfers:
Must have approval for a water transfer (change the place of use, type of use, or point of diversion) - transfer of ownership
does not require approval.
This is one way to analyze the Kovacovich case: he transferred without approval.
The general rule is Junior Entitlement Protection/NO HARM. A transfer must cause no harm to junior users on the
stream. Senior users are already protected because of their seniority. Junior users are primarily affected through loss of
return flow.
a. Sante Fe Trail Ranches Property Owners Assoc. v. Simpson (pg. 285) To protect junior users, can only sell amount
of consumptive and actual historic use (is a factual question) use, even if whole diversion is larger.
b. Catherland Rec. District cant transfer an application for a permit water right is sufficient to be transferred
application is not sufficient enough of a right.
Cant sell your entire paper right if you only divert a portion of it. Limited to selling, at a maximum, only what you divert.
This can be very contentious. This is similar to forfeiture because can lose a portion of your right it you dont use it.
Futile Call Rule: If someone far upstream and dry river bed between that person and A, what upstream user does is
irrelevant because a call will not be enforced if it is completely futile.
In-stream flow rights establishment of a junior right will not do harm to senior users as long as senior user wants to
remain where he is. But it will negatively affect marketability inhibits water transfers of senior users. No Sr. no-harm
rule.

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Sante Fe Trail Ranches Property Owners Assoc. v. Simpson

Right to change a point of diversion of water, type, place, or time of use of water, is limited in quantity by historic use
Application for change of use of water rights involves two questions:
a. What historic beneficial use has occurred pursuant to the appropriation that is proposed for change, and
b. What conditions must be imposed on the change to prevent injury to other water rights.
While appropriator may transfer a water right to another user, a change in the "manner of use" must be accomplished (1) by
proper court decree, (2) only for the extent of use contemplated at the time of appropriation, and (3) strictly limited to the
extent of former actual usage.
WATER MARKETS
Benefits of Water Markets
markets adjust w/ the times (demands, water conditions, and technologies)
allow for rapid reallocations of water in response to droughts/water shortages
promotes conservation
environmentalistwater markets decrease need to divert more water from already depleted rivers or create new storage
projects
markets promote water quality by reducing contaminated return flow; raising value of water might decrease unnecessary
runoff
markets allow for environmental orgs. and govts. opportunity to purchase water for instream flow
Critics of Water Markets
SPECULATION appropriators may claim more water than actually needed so they can later sell it
MONOPOLIES individuals may profit from a public resource, leads to a monopoly
3 groups/interests effected:
Water users on the same stream No-Harm Rule protects them
Environment new appropriation subject to existing in-stream flow requirements
Broader Users/Communities not on the same stream
*PI test only kicks in when apply for new appropriation. Some states have broad PI tests.

1.

2.

In the Matter of Howard Sleeper (pg. 293-296): transfer is contrary to public interest b/c resort provides only menial jobs.
RULE: public welfare is used to determine the beneficial use of a transfer.
Ensenadas Arguments
Transfer would result in retirement of ag. land; TF resulting in increased financial obligations in maintaining the irrigation
ditch
a. Induced effects effects local businesses that depend on ag. [e.g. restaurants, stores, and local services (seed, farm
equip.)]
Resort only provides menial jobs resulting in locals becoming professional natives rather than proud, independent farmers
(culture)

- 45-172(a)2 vested or existing rights shall not affect, be infringed upon, or interfered with
o jr. entitlement protection rule No-Harm Rule.
o No PI test in this statute.
o Suggests that if you wanted to do something against the public welfare, get a permit that is okay w/ public welfare,
and then just transfer the OG use (transfers not subject)
o There is one for new appropriations in AZ.
o Also, SRP can veto attempt to transfer water out of watershed to protect irrigation interests.
- HYBRID WATER SYSTEMS
- How to resolve conflicts if have individuals claiming riparian rights and appropriative rights?
CA rule If one appropriative, one riparian, need to know appropriative date and title date (riparians earliest predecessor in
interest first acquired private title to the land). If appropriation date is prior to the title date, appropriator wins. If title date is
prior to appropriation date, riparian wins.
o Title date is usually older than appropriation date because riparian owner got land from federal government before
was appropriated so riparian will usually win.
However, most hybrid states passed statutes holding riparian rights that become dormant result in a loss of such right =
abolish dormant riparian rights
- CONSTITUTIONAL PROTECTION OF EXISTING WATER RIGHTS
- Franco-American v. OK Water Resources Board (pg. 366)
- F: City of Ada applied to the Board to increase its appropriation rt. from a Spring; Board didnt give them all of the water
they requested after it took into account all the needs of prior appropriaters and riparians
Challenged constitutionality of 1963 amendment to regulate riparians rights changed appropriation so that riparians only
got water for domestic use.
- I: Whether legislature can validly abrogate the riparian owners right to initiate non-domestic reasonable uses in stream water
without affording compensation? Should there be just compensation for taking of riparians rights?
- H: Court held riparian owners enjoy a vested common-law right to reasonable use of the stream and this right may not be
taken for public use without compensation and declared this statute to be unconstitutional because the U.S. Constitution says
that private property shall not be taken or damaged for public use without just compensation.
Abolishing unexercised water rights does not represent a taking of such water rights.
- However, this case was not well received. In fact, the OK legislature basically repassed this same statute after the Supreme
Courts decision. The OK Constitution offered a broader protection of property rights than the federal constitution. (OK:
allowed for compensation even if property is just damaged). CAs situation: CA passed a statute that abolished riparian rights
if they were not used within 10 years of the date of the statue.
- A. Constitutional ChallengesTakings
- Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist. (1935-CA)
Struck down a 10 year limit on riparians to establish beneficial use as an unconstitutional taking of riparian property rights
based on Art. X, 2 of the CA Constitution that limited riparians to the use of such water as shall be reasonably required for
the beneficial use to be served. Court read this as a guarantee that riparian rights would continue to exist. Raised the
question of how to integrate riparian and appropriative rights.
- The CA Supreme Court addressed this question in:
- In re Waters of Long Valley Creek Stream System (pg. 374) (1979-CA)
- F: General stream adjudication and a farmer opposed the Water Boards decision to extinguish a portion of his riparian
claims. The farmer was irrigating 89 acres but claimed that he had a riparian right for enough water to irrigate an additional
2884 acres.
- H: Court provided guidance in identifying limitations on unexercised riparian claims that are constitutionally permissible.
The Board can determine an unexercised riparian claim loses its priority with respect to all rights currently being exercised
and may also determine that the future riparian right shall have a lower priority than any uses of water it authorizes before

the riparian attempts to exercise his right.

This turns riparian rights into appropriative rights. Some think that this decision overrules Tulare. If theres no adjudication,
then any conflicts between riparians and appropriators are resolved using the rule on page 302. This means that adjudication
in CA can be catastrophic for riparian landowners. BUT, Court only said that the Board MAY limit a riparians right, it is not
required to do so.
This decision only applies when there is a general adjudication.
Rule: The legislature cannot statutorily terminate unexercised riparian rights would be unconstitutional. Tulare
Rule: Even though unexercised riparian rights cannot be terminated, they can be subordinated in order of priority to other
declared statutory rights.
Joseph Saxs Takings Article (pg. 379)
Constitutes a Taking:
1) govt. puts deep restriction on your property (Lucas case)
2) physical invasion (Loretto case)
How does this apply to water rights?
on its face some restrictions do not purport to take your water right
o (e.g. must allow some cfs of water be used to provide for an extinct fish)
Physical Invasion should govt. compensate owner for taking some of their water rt?
o Physical invasion rt. to exclude is the most important stick in the bundle in property; however, as applied to water,
the rt. to exclude cannot be used
o Usufructuary rt. rt. to use instead
If owner is not using water for a period of time and someone else uses the water, then owner does not have
a complaint; owner must use water
o There is NOT a rt. to exclude in water law

- Water rights vs. property rights

Loretto v. Manhattan TeleprompterNY statute allowed cable companies to string cables through a landlords apartments. The
U.S. SC that this was a taking of property because it was a physical occupation. The Court noted that the essence of private
property rights was the right to exclude others. Many argue that the logic of Loretto should apply to water rights.
Unsettled as to whether water rights should be treated as property rights in land for purpose of takings clause. There is some
property right on water, but not same level/kind of right as in land. How can divide up water?
Less of an expectation in a water right that will be available every year and less reason to argue a governmental regulation
will result in a taking.
Exclusivity Laredo case essence of landownership is exclusivity. Water rights dont really have same kind of
exclusivity as property rights in land have because water rights are sharing same resource is only a priority system and are
limited to beneficial use this is starkly different from property rights in land.
- NAVIGABLE WATERWAYS AND THE PUBLIC TRUST DOCTRINE
- Navigable Bodies of Waters
Illinois Central (pg. 523) case title to beds of navigable water is of different character than titles held in land.
o The State can no more advocate its trust over property in which the whole people are interested than it can advocate
its police power in advocation of government and preservation of the peace.
Shively v. Bowlby (p. 523) waters below the high water mark are held in trust for the public.
o The U.S. holds the lands in trust for future states.
Utah v. United States (p. 525) navigable in fact = used or can be used as highways of commerce.
Phillips Petroleum Co. v. Mississippi (p.527) all tidewaters included in Shively rule.
o Different states have different rules for non-navigable tidewaters, and are entitled to different levels of public trust
interest
- Navigational Servitude = Navigational Easement
1. Basic doctrine = federal navigational easement prevails over anything which might impede navigation, e.g. wharfing out.
a. No taking compensation is required for removal of obstacles
2. United States v. Willow River Power Co. (p. 541) (govt raised high watermark) the right of riparian owners to be free from
interferences on navigable streams were subject to a dominant public interest in navigation.
a. The company's strategic position on the navigable river for the development of power did not give rise to any right
to maintain it as against interference by the Government in aid of navigation. (Economic advantage a right).
3. Kaiser Aetna v. United States (p. 546) (Hawaiian lagoon case) the petitioner's property had not been capable of navigation
before they modified it; it was not the sort of navigable body previously recognized as being incapable of private ownership
and, therefore, petitioner's interest was similar to that of owners of fast land adjacent to navigable water.
a. Petitioners had a number of property expectancies that respondent would have to condemn and pay for before it

1)
2)
3)
4)

could take over the management of, and allow public access to, the marina.
- Public Trust Doctrine
Public Trust is based in Roman Law
a) Institutes of Justinian (Eastern Roman Law): Water is a common good to all mankind.
b) There is a governmental interest to protect water for all the people (for use)
Origins of US Public Trust Doctrine
a) In late 1800s, idea of public trust developed over preservation of oyster beds threatened by pollution
Equal Footing doctrine
a) As each state is admitted to this union it gains title to the beds of waters navigable at the time of the states admission to the
U.S.
Duties imposed by the public trust doctrine
a) State governments owe a fiduciary duty to the public to protect public trust water
b) Illinois Central conveyance of public trust lands, so that legislative authority is lost, is beyond a states powers
i) Court is skeptical of governments restriction of public use or subject public uses to private interest.
- Glass v. Goeckel (p. 592) (walking the shore of the lake case) The court of appeals erred by granting defendants exclusive
right of use down to the water's edge because littoral property remained subject to the public trust and their rights superseded
public rights only to the extent that they did not contravene the public trust. The court concluded that plaintiff could walk the
shores of the lake below the ordinary high water mark.
- Natl Audubon Socy v. Superior Ct. of Alpine County (pg. 610) - Mono Lake Case
- F: Salinity in Mono Lake is rising as water level drops, due to LAs completed diversions (projects that divert 4/5 streams
that feed Mono Lake). Drop in water level is threatening bird hatchery island by killing off invertebrate food sources for
birds. LA has completed its diversions, and now seeks a license from SWRCB. Locals challenge on public trust grounds.
- H: SWRCB cannot simply ignore public trust issues in granting LAs license to divert all of the water from the Mono basin.
Case remanded to SWRCB to allocate water between appropriative rights and the public trust.
- RESULT on remand: After remand, the SWRCB held public hearings and issued a decision that did allow some reduction of
Mono Lake from its historic level, but not by much, essentially giving environmentalists a victory.
- Rule: Exercise of the public trust right by the state is not a compensable taking of property.
- Rule: The public trust doctrine protects not only navigable waters, but historical, non-navigable tributaries to navigable
waters.
- Rule: Art. X, 2 modifies the public trust, by requiring that all public trust uses be reasonable.
- Rule: Where other reasonable and beneficial water uses and the public trust conflict, the public trust doctrine only applies to
protect natural resources to the extent that such protection is feasible. As a matter of practical necessity the state may have
to approve appropriations despite foreseeable harm to public trust resources.
- San Carlos Apache Tribe v. Superior Court (attachment purple)
- F: there was a challenge to 2 legislative measures revising states surface water law; AZ inserted in statute that public trust
doctrine cannot be used in adjudication
- H: held that statutory changes violated due process or separation of powers under State Const.
Court didnt want public trust doctrine to be a part of this case.
AZ SC said this public trust doctrine is a limitation on the legislation and legislation cant tell any judge not to consider the
public trust doctrine so they struck the act down.
o It is for the courts to decide whether the public trust doctrine is applicable to the facts. The Legislature cannot by
legislation destroy the constitutional limits on its authority.
- GROUNDWATER
- Terms
Percolating groundwater water under the ground that is not connected to surface stream
o different from subflow, not considered part of the surface waters
Subflow term that portion of groundwater that is treated as if it was surface water, connected to surface water
o Holocene alluvium
Aquifer area of connected groundwater underground in a particular region; water is b/t the pore spaces
Recharge water from surface that goes back down into aquifer
o have both natural and artificial (e.g.pumping back into aquifer)
Overdraft take more out than is going in (aquifer drops)
Cone of depression well withdraws water and creates a cone shape beneath the surface and can cause groundwater
interference; cones can intercept; theoretically, according to hydrologists, cone extends infinitely in all directions
Groundwater law varies greatly from state to state
- Common Law Doctrines of Groundwater
- 4 Legal Doctrines
1. Absolute Ownership basically the rule of capture.

Acton v. Blundell (1843) based on lack of ability to know status of water underground, have unlimited right to

2.

3.

4.

1)
2)
3)
-

pump groundwater based on land ownership (TX applies this);

now, if pump large amounts of water near anothers pump for spite, absolute ownership will not apply.
Reasonable Use Doctrine water must be (a) put to a reasonable use (not wasted) (b) on the overlying tract.
In a conflict b/t users A and B, Bs use must be a
i. Reasonable use, and
ii. B cannot transport water if it injures A
Correlative Rights Doctrine riparianism on its side: sharing of water on an equitable basis, requiring reasonable use.
Apportionment
Off tract uses are ok if there is surplus of recharge exceeding withdrawal.
Prior Appropriation
First-in-time, first-in-right
Senior user has precedent over junior
History of AZ Groundwater Law
Before 1940 AZ didnt use groundwater
Around 1940s
Surface water was apportioned
Improvement in pump technology (advanced wells/pumps)
Rural electrification rural areas got electricity; electricity is more efficient to pump water
Overdraft is big problem in AZ
AZ Groundwater Case Law
Howard v. Perrin (1904) whoever owned land, owned everything to the center of earth; landowner owns percolating
groundwater
Southwest Cotton (1931) Maricopa Water District dammed this river to make Lake Pleasant; SWC said had wells close to
this river and building the dam reduced amount of water they could take out (wells were pumping subflow); said had an older
right than MWD
Court said since pumping subflow, are taking surface flow and have prior appropriative right over MWD first time subflow
was mentioned; appreciable and direct diminishment flow of stream
1945 AZ enacts first groundwater code, which required peeps to register their wells (allows for regulation).
1948 GW Code created Critical Groundwater Areas (CGAs) in AZ
if in CGA, cant drill new wells to irrigate new lands; presume injury if drill in a CGA; if overdraft of aquifer you are subject
to regulation
to circumvent this peeps used their old well and pumped it under new lands, built a new well on new land and used that water
to irrigate old land
Bristor v. Cheatham (1952) B has earlier/smaller well than C, C moves adjacent to B and puts in a well to pump waters
for adjacent CGA land on which new wells could not be drilled; B would want reasonable use doctrine, C would want
absolute ownership doctrine AZ SC applied prior appropriation to groundwater
AZ SC applies prior appropriation to all water whether surface or groundwater; TF Bristor wins b/c had earlier well
Bristor II (1953) court overruled Bristor I and said reasonable use doctrine applies.
Farmers Investment Co. v. Bettany (1976) Green Valley in Sahwarita CGA; pecan orchards, mines, and Tucson were
using water in this area; court said Tucson cant drill water from 2 1 acre sites; is a CGA so presume injury.
land from which it was pumped to mean cant take it out of the groundwater basin/aquifer area; got cities so upset with
reasonable use doctrine; right after this, AZ legislature grandfathered in existing transfer, which led to 3 years of bickering
prior to 1980 groundwater code
Groundwater Code (1980 Groundwater Management Act)
3 Most Highlighted Groups (had say in drafting the code; TF see their interests in the code)
Cities
Miners
Farmers
(Excluded: tribes, industry, residential, environmentalists, recreation, private water companies)
What did Code do?
1. Created the AZ Dept. of Water Resources (ADWR)
2. Broke State into 3 different sections
(a) Active Management Areas (AMAs) Phoenix, Pinal, Tucson, Santa Cruz, Prescott

Established management goals for the AMAs

Phoenix, Tucson, and Prescott followed safe-yield by 2025 meaning no overdraft
Pinal followed planned depletion meaning farmers can pump as long as they can but save some
groundwater for non-ag. development
Farmers fought that Pinal would not follow safe yield
Santa Cruz deals w/ transports groundwater use
(b) Irrigation non-expansion Areas (INAs) Joseph City, Douglas, and Harper Halo
o No new irrigated lands (farming) (1975-1980)
(c) Everything Else reasonable and beneficial use
3. Transportation: within basin is ok, limited circumstances for interbasin transfers
o

1.
2.
3.

4.
5.
6.
-

AMA Active Management Areas (goal is still safe yield)

no new irrigated land applies (1975-1980)
if you want to draw out new water have to get a right
(1) Grandfather Rights grandfathering in a use in the period b/t 75-80
a. Irrigation Grandfather Rights (IGFR) gives farmers a right to continue using groundwater to irrigate acres b/t
75-80
i. may not be able to use the same amount of water: have to use statutory formula.
ii. Irrigation Acres all the acres you ever irrigated b/t 75-80
iii. Water Duty Acres annual maximum, most irrigated in one year b/t 75-80
iv. Farmers can opt for best management practices instead of formula
1. This means as a farmer you can engage in practice believed to save water; you dont use formula
v. Appurtenant: runs with the land, can be leased with the land.
b. (b) Type 1 non-irrigation GFR can only use water to for commercial use; non-ag. irrigation
i. developer must use water on the land (e.g. houses)
ii. Appurtenant: runs with the land, can be leased with the land. Cannot exceed 3AF per acre.
c. (c) Type 2 non-irrigation GFR 75-80 non-irrigation use of groundwater
i. not appurtenant to that land; can transfer type 2 right outside the service area (e.g. from tempe to mesa)
ii. must withdraw from within the same AMA and subject to DWR well impact rules.
(2) Service Area Rights right of a city, town, etc. to w/draw water in its service area to serve its customer; is an unqualified
rt.
a. GPCD = gallons per capita per day
(3) GW withdrawal permits if you dont fit w/in the rest of the categories, go to DWR and apply for a permit if you are in
w/in specific categories in statute; most common is general industrial use (GIU) permit
(4) Exempt wells if you have a well at house, you are exempt from the code
INAs Limitation is cant bring any new farm ground into production; no statutory restriction other than this in these areaonly common law
Rest of state (reasonable and beneficial use) - are specific restraints for transport of groundwater, but mostly common
law principles govern in this area.
Assured and adequate water supply requirement apply to developers. Before can get plat, must get a certificate from
DWR that you have an adequate water supply have enough water to serve development for 100 years. If you dont have
that, must tell future residents in informational material that you dont have it.
o BUT, most developers meet their water requirement with CAGRD developer pays money to enroll development in
this group, who in turn finds renewable sources of water to offset pumping to serve development. Membership
takes care of assured and adequate water supply requirement.

FEDERAL RESERVED WATER RIGHTS (INCLUDING INDIAN RESERVED WATER

RIGHTS)
Ways in which federal government becomes involved (is a player in the system):
1. A holder of reserved water rights
2. Bureau of Reclamation builds dams
*federal govt. is a different player b/c it brings its owns rules w/ it
Federal Government as Regulator:
3. e.g. Colorado River
4. Clean Water Act/Endangered Species Act

Federal government acquired almost all Western lands through treaty or purchase; then, eventually, after states were founded,
government eventually transferred the water rights to the states.
U.S. retains something like riparian rights on federal lands (national parks, reserves, etc.)
BASIC NATURE OF FEDERAL RESERVED WATER RIGHTS
The Winters Doctrine
Winters. v. U.S. (pg. 905)upstream farmers diverted water from Milk River, thereby substantially depleting flow of water to
reservation.
Rule: When the United States sets aside an Indian reservation, it impliedly reserves sufficient water to fulfill the purpose of
the reservation.
Rule: Ambiguities in an agreement or treaty with the Indians will be resolved from the standpoint of the Indians.
US v. Rio Grande Ditch Co.: The power of the Government to reserve waters and exempt them from appropriation under
state law cannot be denied.

Arizona v. California (pg. 909) U.S. asserts claims to waters in the main river and tributaries of the Colorado River for use
on Indian Reservations, National Forests, Recreational and Wildlife Areas and other government lands and works.
- Rule: Use of equitable apportionment is inappropriate when deciding how much water should be allocated to an Indian
reservation vs. a State. Equitable apportionment only applies to state v. state questions of water allocations.
- Rule: Practicable Irrigable Acreage (PIA). When an Indian Reservation is set up by the Government, the amount of water
reserved is the amount necessary to irrigate all the practicably irrigable acreage on the reservation.
Practical Result: IN most instances, the PIA standard has led to far more water being allocated to the reservations
than can be used.
- Practically irrigable acres
1. defined as those acres susceptible to sustained irrigation at reasonable costs
1. Arable land
2. Engineering feasibility of getting water to the land
3. Economic analysis to see if the cost is reasonable
2. At what date in time do you do this evaluation - in the terms of the reservation? 1899? Or what. IF we are in court today, we
ask if we can get water to this part of the reservation today, etc. You have a battle of the experts when determining PIA.
- Cappaert v. United States (pg. 912) In 1968, a ranch near the Devils Hole began pumping groundwater, reducing the level
of water in an underground pool at Devils Hole, containing endangered desert pupfish. A 1952 proclamation stated that the
pool in devils hole was to be protected.
- H: The water level in Devils Hole must be maintained at a sufficient level to keep the pupfish alive, but does not, under the
reserved rights doctrine, have to be maintained at its historic full level.
- Rule: The implied-reservation-of-water-rights doctrine reserves only that amount of water necessary to fulfill the purpose of
the reservation.
- United States v. New Mexico: The United States was diverting river water for domestic-residential use, road-water use,
stock water use, and fish and wildlife purposes. Congress created the national forest system for the preservation of water
flows and the furnishing of timber.
- Rule: broadening the purposes of national forests did not expand the reserved rights of the United States.
- Rule: The date is from the date of the reservation, not the date of the Act.
- McCarren Amendment (pgs. 940-943)
- waived the federal governments sov. immunity in cases of general stream adjudication meaning fed. govt. can be hauled into
a state court proceeding to litigate Indians rights
- INDIAN RESERVE WATER RIGHTS
1. Most tribes rights remain unquantified. Quantification of Indian reserve water rights that presents issues different from those
that normally go on historical investigation is usually conducted. But, for PIA, issues considered are economic and
agricultural.
2. Significant barriers to tribe to making use of water right reserve right is simply a right to call the river when they can put it
to use. These rights are sometimes referred to as paper rights or dry water.
- Big Horn I (pg. 958) and II The Wyoming Supreme Court handed down two major decisions in this case.
Big Horn 1 (1988) the court decided that: 1) the Wind River tribes did indeed have reserved water rights that
preceded all other state users, and 2) since the original purpose of the reservation was to support agriculture, the amount of water
reserved should be based on the "practicably irrigable acreage" standard established in Arizona v. California.
In Big Horn 2 (1992) the court decided that the tribes could not convert their water use from irrigation to instream
flow without first following state procedures. Wyoming state law says that only the state of Wyoming owns an instream flow right. So
the court's decision in essence told the tribes: If you want to use your water for instream flow you, like any other Wyoming user, will

have to "buy" that right from the state.

- Can Tribe convert PIA right to different use? Possible Answers:
1. Never. As a matter of federal law, was allocated by federal law for that specific purpose (one extreme)
2. As it pleases tribe can do with water as it pleases (other extreme)
3. Only as permitted by state law. Treat the tribe as an ordinary water user under state law.
o Only state may hold instream flows [or tribe]
4. Only for uses on the reservation.
5. Only if other parties are not harmed when tribe makes a change in water right.
6. Only if put to agricultural use first.
7. Only if no greater harm than if water was used for
- Colville Confederated Tribes v. Walton non-Indian owner of allotted lands, dispute over the parties' respective rights to use
and regulate surface and ground waters on an Indian reservation.
RULE: Walton had a right to irrigate acres under irrigation at the time he acquired his land.

Elements of a Water Right Settlement

In context of a stream adjudication, tribe negotiates with non-tribe members to determine what the rights will be.
Tribe agrees to accept some amount of water which is less than the reserve that than the tribe might have gotten had the rights
been adjudicated. Tribe can usually lease some of its water off of the reservation.
In addition to being agreed upon by the parties and being approved by the court, they usually require a bill in Congress
because the settlement depends on federal funding and because the settlements involve a disposition of federal property.
This is a long process.
General Arizona Water Rights Adjudiction
Arizona v. San Carlos Apache: Apaches sought adjudication in federal court.
RULE: state adjudications were adequate to quantify the rights at issue in the federal suits.
RULE: The expertise and administrative machinery available to the state courts, the infancy of the federal suits, the general
judicial bias against piecemeal litigation, and the convenience to the parties, fed courts should defer to the state proceedings.
United States v. Maricopa County Superior Court: challenge to jurisdiction in Superior court.
RULE: Arizona courts had jurisdiction to adjudicate Indian claims to stream waters and could do so in a comprehensive,
general proceeding in which the United States, as trustee of such claims, was joined as a party defendant.
RULE: jurisdiction over those claims so long as the state acted in accordance with federal law and not contrary to the right of
Indian self-government.
In Re Gila 1992 : (1) as the Arizona State Land Department (SLD) and the Arizona Department of Water Resources (DWR)
sent notice via certified mail to over 849,000 property owners in the affected areas, they exercised due diligence in trying to
ascertain the whereabouts of potential claimants, and notice by publication satisfied due process for property owners they had
not located;
(2) publication by notice satisfied due process for lienholders as requiring the SLD and the DWR to notice them by mail
would have been an unreasonable burden;
(3) publication of notice was proper for lessees and permit holders;
In Re Gila 1993: The trial court issued an order stating that the 50 percent/90 day rule stating that percolating underground
water was appropriable if the volume of stream depletion reached 50 percent or more of the total volume pumped during 90
days of continuous pumping.
RULE: On appeal, the court held that the 50 percent/90 day rule did not apply because it was inconsistent with prior case law
which held that percolating groundwater was not subject to appropriation.
In Re Gila 1999: The US must have intended that reservation of water to come from whatever particular sources each
reservation had at hand.
RULE: federal reserved rights applied to groundwater.
RULE: could not defer to state law, the "reasonable use" doctrine, where to do so would defeat federal water rights.
RULE: holders of federal reserved rights enjoy greater protection from groundwater pumping than do holders of state law
rights to the extent necessary to accomplish purpose of reservation.
In Re Gila 2001: the general purpose, to provide a home for the Indians, was a broad one and had to be liberally construed;
RULE: a permanent homeland requires water for multiple uses, which may or may not include agriculture;

1.
2.
-

RULE declined to approve the use of practically irrigable acreage standard as the exclusive quantification measure for
determining water rights on Indian lands.
Limiting an Indian reservation's purpose to agriculture, as the PIA standard implicitly assumes
Indian peoples will not enjoy the same style of evolution as other people, nor are they to have the benefits of modern
civilization. I would understand that the homeland concept assumes that the homeland will not be a static place frozen in
an instant of time but that the homeland will evolve and will be used in different ways as the Indian society develops.
Even where reservations were created so that tribes could engage in agricultural pursuits, Congress only envisioned this
as a "first step in the civilizing process.
New Test?? Creates a new test of to replace the PIA test. Is a factual inquiry and should consider tribes history, tribal
culture, tribal lands geography, topography, natural resources (groundwater availability), tribes economic base, past water
use, tribes present and projected future population.
Why does the ct. find that PIA standard is inappropriate?
o Inequitable b/c based on geography/topography that Tribes cannot control (some live on alluvial plains, others in
steep areas)
o If you are in an area that is economically unfeasible for irrigation then you get little water
o Places premium on farming when farming may not be the most productive use water/land (farming is risky, marginal
projects)
o Not tailored to the needs of the tribePIA awards overabundance of water by including every irrigable acre of land
Other Side of Argument
o Quantification on population
CA case said you cant base quantification on population
List of factors does not provide a rule at all just a list of things to consider

WATER LAW SETTLEMENTS

1.
2.
3.

6.
7.
8.
9.
10.
11.
12.
13.

What Makes Water law Settlements Successful:

Well-defined measurable objectives: explicit baselines
Clear documentation protocols: regular reporting
Fair distribution of costs: Who pays?
a. Beneficiaries
b. Polluters
c. Deep pockets
Positive net benefits
Incentive compatibility:
a. Incentives to comply with agreement
b. Incentives to manage water efficiently
Cost-effective implementation: balances specificity with flexibility
Financial feasibility
Cultural and community sustainability: changes in ownership, wealth and taxes
Environmental sustainability
Compliance provisions: benchmarks, penalties and assignment of responsibility
Flexibility
Improved problem-solving capability: conflict management, negotiation
Enhanced social capital: unification and reciprocity among parties.

FEDERAL RECLAMATION PROJECTS

4.
5.

1.

2.

Federal government is a participant in water use (funds and constructs dams (Hoover dam), irrigation ditches, etc) because by
irrigating land, arguably put water to use. Federal government is involved in these projects because of large costs associated
with such projects.
Bureau of Reclamation (Dept. of Interior) operates only in the 17 Western states west of Mississippi. Army Corps of
Engineers operates nationwide.
First Multiple purpose project = Hoover Dam (1936).
As of 2002, 180 water projects, largest water wholesaler, 50% of water in western US. 140,000 farmers, large amount of
production.
Federal Reclamation Law 3 major principles
The Reclamation Act was supposed to be dedicated to the promotion of small family farms.
i. Acreage requirement: There was a limit in acreage (160 acres) that would get water
ii. Residency requirement: Had to live on or near the farm (50 miles)
iii. Problem get surrounding peeps to buy up lands and lease them to you; or get them put into trusts
Beneficiaries would ultimately pay for the project; the federal government was supplying the capital up front.

i. 2 types of costs 1) original capital costs and 2) cost of operating and maintaining the system.
ii. Problems
1. Bureau didnt take into account inflation
2. Under OG Reclamation Act costs to projects were interest free
3. Ability to Pay Provisions if farmer didnt have the ability to pay then payments would be reduced by the fed.
govt. to reflect a payment amount he could pay
4. Allocation of costs dams serve multiple purposes and bureau is to decide what fraction of the benefits is going to
each of the purposes and each group of users only has to pay fraction of cost of benefits that is allocated to them.
However, quantifying the benefits is difficult and fish, wildlife, and the environment cant physically pay for the
benefits they are receiving.
5. SC has said even though bureau holds permits to water rights, its holds them as trustees for farmers and other
individuals who actually put the water to use. The actual title is held in trust by the bureau.
3.

The Reclamation Act wasnt supposed to interfere with state water law.
i. Problems
1. Anyone w/o a preexisting water right must get it from a K w/ the Bureau of Reclamationmore important State
water law
2. Bureau enters into a contract with an irrigation district and delivers water to that district and the irrigation district
has its own set of contracts with individuals and then delivers water to them. Federal law determines rights and
obligations of the farmers.
3. When it appropriates money for these projects, Congress puts requirements on them sometimes conflict with
state water law.
4. Preference given to irrigation over other uses for water.
5. Charging per acre did not limit the amount of water used
ii. Market problems: allowing BOR District City
1. Allowing sale of contracts does not transfer the subsidy: district gets a windfall
a. Consent of BOR can mitigate problems
b. Surcharges from district BOR; splits windfall between city and district
c. Limit by types of buyers
Reclamation Reform
Reclamation Act implicitly involved number of assumptions promotion of agriculture was a good thing (reflected in fact
that agricultural was given highest priority water in receiving water from these projects and substantial subsidy rates charged
were low); no point in leaving water in the streams. These policies were criticized as being outdated agricultural shouldnt
be prioritized so highly; environmental concerns should leave water in the streams for fish, recreation, etc.
Then, there was declining political support for building such dams. Remaining question is to what extent federal government
legally can build dams and whether it should change management of existing dams to reflect the concerns surrounding these
concerns reallocate water, change pricing, operate projects with greater concern for environment. Also, should have better
enforcement for acreage limitation in the act.
Reclamation Reform Act 1982 [tightening up the act = bring reclamation back to its purpose] applies to all existing
reclamation projects; was mainly concerned with pricing and enforcing acreage limits; no environmental limits or
reallocation of water.
o Increased amount of water deliverable from 160 acres to 960 acres (included owned and leased land)
Eliminated Leasing Loophole
o Hammer Provision for water for more than 960 acres you will have to pay the full cost
Central Valley Project Improvement Act 1992 applies only to central valley project in CA; more radical legislation; dealt
with pricing, environment, allowed farmers to sell some reclamation water to cities a market mechanism for reallocating
water.
Congress can impose additional costs on beneficiaries of fed. rec. projects, even though farmers argue they have a reliance
interest, there are tons of examples of people investing in government projects or policies that dont continue government
doesnt have to continue projects just because people relied on them.
BUT, government is required to honor its contracts. Conflict where government changes policies but still have old
contracts based on previous policies. How do those contracts cause government to shape new policy? Courts have tried to
address this conflict by saying when in doubt, should interpret contracts in a way that does not bind government to its old
policy.
Madera v. Hancock (pg. 779) Madera had a 40 year contract for water at a cheap price. Congress passed statute before this
contract had expired, which effectively retroactively charged for water in the past (recoup losses on K renewal and
environmental charges), via higher prices at renewal.
RULE: Contracts for water supply do not surrender government authority to charge more for water.
RULE: Power to modify water contracts only as necessary to comply with national environmental policy does not render

the contract void for illusory promise, because power to modify is limited.
Held: NEPA and ESA are valid modifications and applied to renewal.
Federal Versus State Authority
Ivanhoe and City of Fresno the specific overrides the general. Despite general disclaimer in 8, the specific provisions that
seem to contradict state water law will be enforced. In deciding these cases, the SC said all 8 really means is the bureau of
reclamation will comply with state law in acquiring water rights but federal law alone will determine how water from these
projects is allocated.
California v. U.S. (did not read in Dworkin)
RULES from CASE:
State law applies with regard to compensation that is to be paid for condemned water rights under a federal reclamation
project.
State law applies to all distributions of water from a federal reclamation project.
State law applies to the appropriation of water for a federal reclamation project, unless there is a clear intent to the contrary
expressed by congress.
Endangered Species Act
8 says no interference with state laws, recognizes state water law
7 requires all federal agencies to ensure that actions it takes does not threaten the continued existence of endangered species
and does not critically modify the habitat of the species. Agency must get advice from NMFS or FWS, and this advice is
required by statute. Key legal fact is that the ongoing operation of a federal reclamation project is considered an action
within the meaning of the ESA. This means the BuRec must consult with NMFS or FWS often.
In theory, although BuRec may hold water rights, courts have held that under state water law, the real beneficial owner of
water right is the farmer who actually uses the water BuRec only holds water as a trustee.
Statutory mandates that govern BuRec typically prioritize purposes irrigation is usually #1.
BuRec has contracts for delivery with these farmers and sometimes ESA requires BuRec to violate those contracts.

THE COLORADO RIVER: INTRODUCTION TO THE LAW OF THE RIVER (799-835)

Colorado River Law Great River of the Desert SW
doesnt carry that much water
used in all 7 basin states
is a source of water for 30 million people
AZ has the most land that drains into CO river; CA has the least
CA is natural user of CO river water b/c:
Imperial Valley (CA) geographically it was a one time floodplain to the COmakes it a great place to irrigate; has alluvial
soils (good soil for farming); it is flat; climate is conducive for farming
Easier to build canals to L.A. and San Diego
Alamo Canal cheap, natural way to bring CO water to Imperial Valley
o Problems Alamo Canal would dry up and couldnt control when it flood; and water had to be shared w/ Mexico
Other Basin States
colder climates, higher elevation, cities are smaller and developed later, difficult to transport water
CO Compact of 1922 Basin States made an Agreement w/ CA
other states wanted CA not to take up so much CO water; TF other states offered to support building a dam politically
(Hoover Dam)
CO Compact of 1922 in negotiations AZ thought it was entitled to as much water as CA; TF divided upper and lower basin
= Lees Ferry (50/50 split b/t Upper and Lower Basins)
o AZ gets screwed b/c they are lumped in w/ CA (mouse v. gorilla)
o AZ also concerned about the Gila River which is a tributary to the CO
If Gila was counted as part of the compact then CA would get a good sized portion of the Gila and AZ
would not get main stem of the CO
Mexico
o If there is surplus Mexico will get its need;
o If there is not enough then will be taken from upper and from lower to meet Mexicos need
o 1944 Treaty w/ Mexico = 1.5 million owed to Mexico

Normal year flow through Lees Ferry = upper basin owes 7.5 million to lower basin plus of Mexicos
treaty needs (0.75 MAF) = 8.25 MAF - .02 MAF (Paria River) = 8.23 MAF

Boulder Canyon Project Act states runaround AZ

6 months provision Put a bill in Congress that says you dont need all the states to agree; only need 6 of 7 states to agree
after 6 months
Authorized construction of the Hoover Dam (Federal Reclamation Dam)
Authorized construction of the All-American Canal
Limited CA to only use 4.4 acre ft.
o AZ still unsatisfied b/c if Gila is included in the 7.5 million from main stem of CO, then AZ could get as little of 1
million from main stem
AZ gets 2.8 MAF
NV gets 0.3 MAF
AZ, CA, and NV are authorized to enter into an agreement = 3 states didnt agree to this compact and if they dont the dam
is going to built anyways
Arizona v. California (pg. 821) deals w/ divisions of water amongst the states
H: Parsing the language closely the court rules that the apportionment is only from the CO itself, not the COs tributaries,
thus protecting AZs interest in the Gila riverCongress only meant that state allocation #s apply to the main stem of CO
not (Gila R. doesnt count in main stem figuration)
H: Special Master appointed to case finds that the CO River Compact, the law of prior appropriation, and the doctrine of
equitable apportionment do not control allocation of the COs waters. Instead, the master finds that the Boulder Canyon
Project Act has apportioned the COs waters between the states. CA disagrees and argues that the CO River should be
divided by prior appropriation or equitable apportionmentCt. held that Congress intended the #s allocated to CA, AZ, and
NV
Court said these allocations only applied to main stem of the CO so AZ got 2.8 from the main stem plus the Gila River.
This decision opened the way for CAP - 1.2 maf to Phoenix and Tucson.
CAP allows Phoenix and Tucson to reduce usage of groundwater.
Notes:
CA uses over 5 maf per year by using:
o Unused upper basin apportionment if any state is not using its allocation, other states can pick it up.
o Unused AZ apportionment until AZ build CAP, there was unused apportionment. Wet years - during wet years,
extra water is stored up in Lakes Mead and Powell providing a cushion for CA to use.
But now, AZ is using all its allocation and no wet years so no more excess in the lakes. Unused upper basin apportionment is
still there.
CA is supposed to reduce CO river water use slowly starting in 1992. CA had a transfer of water from imperial irrigation
district (who was receiving 3.85) to San Diego County that helped CA meet its first reduction amount. When CA didnt
reduce their amount in time, the Secretary of the Interior ordered that CA could only have 4.4 maf, and said under the
compact and Boulder Act, found that water must be beneficially used but imperial irrigation district was wasting water.
Secretary did a reallocation and reduced imperial irrigation district to 3.6 maf, and the district brought suit.
CO River Basin Project Act (1968)
authorized the building of the Central AZ Project (CAP)
AZ v. CA cleared the air for this act to pass

Entitlements

K between Fed government (Bureau Reclamation) and District

o Subcontracts with aportionees
o Secretary must approve any contracts
o Secretary relies on delegated authority to the state for regulation
Transfer of Entitlements:
o Consumptive use: specified amount of return flow
Entitled to consumptive use = diversion return flow
The uses, diversion and loss may be variable over time
o Diversion entitlement: no specified return flow
State reclaims return flow
May be able to change usage without changing entitlement
o Beneficial Use entitlement: includes beneficial use in the entitlement
Use is restricted

o
o
o

Harder to change usage type

Requires a NEPA analysis (EIS)
Requires public notice, federal notice: parties can complain and begin negotiation/adjudication
At the time of transfer, Department can require conversion of Diversion consumptive use
Beneficial use: impacts on junior appropriators?
Cannot transfer more than your original entitlement
Transferee has to prove
Can make beneficial use
Can do I within a reasonable time frame
In order to prevent speculation, brokering and hoarding (or going to another state)

ENVIRONMENTAL STATUTES AS LIMITS ON APPROPRIATIONS

List of ways fed. govt. plays a role in water allocation

1. fed. reserved rights
2. Reclamation Programs fed. govt. acts as a financer of dams and projects
3. CO River fed. statutes determine distribution of water amongst states
4. Environmental Regulation most indirect way to regulate water use
meant to protect species or water quality = have affect on water use
National Environmental Policy Act (NEPA)
Environmental Assessment (EA), determine if adverse effects
Adverse Impacts:
o can show making mitigating actions
o balance with high utility actions
o If cannot mitigate and high utility, can go ahead with action
Was a sufficient EA EIS Environmental Impact Statement made in the first place?
Clean Water Act
passed in 1972 instituted direct regulation of water pollution
o peeps required to have permits
Similar to public trust doctrine in some cases, limits water use altogether or reduces amount of water used, although people
might have water rights that predate the statute.
301 core of CWA
Contains prohibition that forbids discharge of a pollutant w/o a permit (you need a permit to discharge a pollutant)
Discharge of a pollutant = addition of a pollutant to navigable waters from a point source
o if you dont meet all of the underlined words then you are NOT discharging a pollutant
o Addition violation to move dirty water from on navigable water way to another
o Pollutant (almost anything) includes things like rock, sand, dirt, concrete, chemicals, sewage, fish species
(biological materials)
o Point Source pipes, conduits, ditch, canals, means of conveyance, (rainwater collected in city gutters)
Not Point Source agriculture runoff, logging, people
o Navigable Waters (controversial) means the waters of the US, including the territorial sea = definition of limited
import
Waters of the US includes
Navigable in Fact (NIF) can really float a boat on it
Interstate waters crosses state lines; dont have to be NIF
Tributaries of NIF waters includes ephemeral and intermittent streams [enormous category]
Adjacent wetlands
o Includes certain isolated wetlands if it affects interstate commerce or migratory bird
habitat
Solid Waste Agency v. United States Army Corps of Eng'Rs (SWANCC Case 2001): cities sought to develop an
abandoned gravel pit as a solid waste disposal site. Corps of Engineers denied application for a disposal permit because they
were subject to protection as habitats for migratory birds.
o RULE: Navigable in fact or tributaries: must be connected to NIF waters (gravel pits are not NIF)
o Concurrence: significant nexus test.
o Other courts interpreted this decision narrowly as just excluding the migratory bird rule
US v. Ropanos (2006) Limits of wetlands adjacent to navigable water (wetland adjacent to a

ditchditchcreeknavigable water)
o (1) term navigable waters, under CWA, includes only relatively permanent, standing or flowing bodies of water,
not intermittent or ephemeral flows of water, and
o (2) only those wetlands with a continuous surface connection to bodies that are waters of the United States in their
own right are adjacent to such waters and covered by the CWA.SCT held that wetlands must meet the significant
nexus w/ the navigable water
Dont know if this rule applies to Tributaries
James City County Case v. EPA (pg. 646) County wants to build a damcore of engineers grants the permit to
buildEPA vetoes the permit b/c dam would have a damaging impact by decreasing the amount of water flowing in the
Chesapeake Bay (affects fisheries)County says EPA is wrong b/c it didnt consider affects on humans.
H: Ct. sides w/ EPAs interpretation that it doesnt have to engage in a balancing test if activity will cause significant loss of
wildlife, it doesnt matter how much it harms the County. [EPA veto is unadorned] (1) EPA veto could be based solely on
environmental harms without considering community's need for water (2) EPA could conclude that dam across creek would
have unacceptable adverse effect on environment.
Countys Side
o County argues they arent polluting the water, are just diverting it; TF CWA wasnt designed to govern diversion of
water
o Could argue impact on fisheries is acceptable b/c beneficial use water on county outweighs fish impact; impact
MUST BE UNACCEPTABLE (as stated by the statute)
o County could also argued 101(g) nothing in CWA is intended to interfere w/ state law to allocate the distribution of
water; yet, EPAs veto is having that exact effect
statute shouldnt proceed or supercede state water allocation authority (VA approved the permit)
402 governs putting in chemicals or solid pollutants that flow w/ the water
404 governs permits for fill material (solid substances such as a dam or diversion)
o How do 404 permits work? (3 stage process)
1) EPA writes guidelines the core of army engineers must follow to issue a permit
2) Core issues or denies the permits in accordance w/ the guidelines
Core can condition on how to construct, what can and cant be done, etc. in the permit
3) Environmental Veto Provision where EPA can veto cores decision if it has affect on fishing, wildlife, or
recreation areas
Vetoes are rarely used but used in the following case
o 404(c) EPA Veto Power in some ways like a public interest test, differs b/c:
1) more selective
2) there is no balancing test
3) EPA is a federal agency

ENDANGERED SPECIES ACT

Endangered Species Act

One of the most powerful acts
Administered by 2 agencies USFWS and NOAA fisheries
o NOAAs Domain = Marine Species salt water fish, marine mammals, land/water fish
o USFWSs Domain = Everything Else
Jeopardy opinion: Endangered (close to the edge of extinction) and Threatened (farther from the edge)
Species includes whole, subspecies, and distinct population segments (e.g. runs of salmon)
Operative Provisions of the Act
Section 9 = contains prohibitions to a species (buying, selling, export, and cannot take)
o Take = harass, harm, pursue, collect, ect. a species
o Harm (very broad) = includes habitat modifications that kill or injure a species
o Unlawful for any person to Take a species (covers everyone individuals, cos., corps., ect.)
o Exception to Take called Incidental Take Permits
Permit is difficult to get; must submit a habitat conservation plan
Section 7 = more important for water purposes
o Only applies to government agencies
o Says any action an agency takes, it must ensure its action will not likely jeopardize the continued existence of a
species or adversely affect the critical habitat of such species; Federal agency should ensure any action it takes
should not destroy or modify the critical habitat of the species as designated by the USFWS
What counts as an action?

1.
2.

Bureau of Reclamation building a dam (funding a project)counts

Federal agency issuing a permitcounts (e.g. CWA permit)
Agency operation of dam or federal projectcounts
o Role of USFWS
Plays a supervisory or watchdog role
Agency must ask USFWS whether their action is going to adversely affect a species; USFWS can say:
1) No it will not affect the species
2) Not really going to affect but you can do something different to save the species or have less
impact on species
3) Yes agencys actions will affect the species, so too bad cannot go forward w/ the agency action
(rarely said)
Difference b/t 7 and 9 = Critical habitat include area where species are not currently present (i.e. bulldozing a stream where
fish are not present can still be a 7 violation b/c it is a critical habitat)
Tulare Lake Basin Water Storage District v. United States (pg. 653) Ps claim that their contractually-conferred right to the
use of water was taken from them when the federal government imposed water use restrictions under the ESA (salmon); Ps
seek 5th Amendment compensation for alleged loss; Physical Taking important for Ps (CVP and SWP) b/c if it is physical
taking then it is a per se taking which is definitely compensable
Regulatory Taking: interference with right not as compensable (econ impact, investment backed expectations Penn Central)
H: Court ruled that a physical taking had occurred as a result of the Bureaus restrictions on water as required by the ESA
Klamath Irrigation District (pg. 660)
H: finds Tulare to be wrong, incomplete, and distinguishable for different situations like:
Tulare failed to consider whether the K rights at issue were limited so as not to preclude enforcement of the ESA
a. Ct. treated K rights as absolute w/o considering if there were limitations in times of water shortage, either by prior
Ks, prior appropriations or some other state law principle
Ct. didnt consider whether Ps claimed use of water violated accepted state doctrines, including those designed to protect fish
and wildlife
a. awarded just compensation for the taking of interests that may well not exist under state law
Edwards Aquifer Case (pg. 662)
Lowering the groundwater ends up drying up springs and streams on the surface.
TX follows rule of capture (law of the biggest pump) = can pump as much as you like, cant have willful waste. TX created
a state agency and gave it the power to regulate groundwater because USFWS threatened to implement its own limitations
on pumping.
Local regulation failed state; state failed fed pre-emption and intervention for species protection.
Delay of action and over-pumping resulted in what the pumpers feared most: federal control.