Enough water passes The Dalles
gauging station on the Columbia
River in 16 days to equal the
annual surface water and
groundwater supply in Nevada.
Prior Appropriation Doctrine
Owned By The Public
Right To Use Only (“Usufructuary” Right)
Regarded As A Property Right
Excludes domestic wells (2 acre-feet/year)
Units Of Measurement
Acre-foot ~ A football field flooded with 1ft of water
Surface Water v. Groundwater
Defined By Hydrographic Basin
Perennial Yield Concept
Interaction With Surface Water
Groundwater Flow Systems
Each A Separate Source Of Water
Perennial yield used to estimate total volume of
groundwater available for appropriation
“Maximum amount of groundwater that can be
salvaged each year over the long-term without
depleting the groundwater reservoir. Perennial
yield cannot exceed the natural recharge”
Geller v. Huffaker (Thomas Creek)
Lobdell v. Simpson (Desert Creek)
Ophir Silver Mining Co. (Carson River)
Van Sickle (Daggett Creek)
Jones v. Adams (Sierra Creek)
Reno Smelting (Truckee River)
1866 Ditch rights’ statute enacted
1889-93 Irrigation Act
1899 County Commissions
1903 State Engineer’s Office created
1905 Permit System created
1913 First comprehensive water law
1939 First groundwater law
Beneficial use within a reasonable time period
Procedure to determine status of vested rights
Civil v. statutory
Summary of procedure
Statutory Permit System
State Engineer Form
Public Notice And Protest (60 days)
Published in local newspaper for 4 weeks
Followed by 30-day protest period
Intent to construct diversion works
Surface and groundwater treated separately
No Conflict With Existing Rights Or Domestic Wells
“Justified” Need To Import Water
Conservation Plan (if municipality)
Appropriate Long-Term Use
Any Other Factor
Transfers In Excess Of 250 afa
Area of origin protection
Application May Be:
Approved As Requested
Approved With Conditions
Decision Presumed Correct
Appellant Must Show Lack Of Substantial
Evidence Or Clear Legal Error
Tie Goes To The State Engineer
Factual Findings Within State Engineer’s Scientific
Legal Interpretations Of Statute And Regulations
Authorization To Use Water
Proof of completion of diversion works
Proof of beneficial use of water
Extensions of time
Place Water To Beneficial Use
Strictly Comply With Permit Terms
Use Outside Permit Terms Does Not Count
Prove to the State Engineer that you have used the
water for the purposes for which it was granted
Change Of Diversion Point, Place Of Use, Or Manner Of Use
Same Procedure As New Appropriations
Priority Date Unchanged (Doctrine of Relation Back)
Same Conditions As Underlying Right
Cannot switch between surface and groundwater or between
Perfection Process Starts Over
Consumptive Use Considered If Changing Manner Of Use
Applies To Unperfected Rights (i.e. Permits)
Applies To Surface Or Groundwater Permits
State Engineer Must Give Notice Of Permit Requirement
May Be Rescinded, But Causes Loss Of Priority
Cancelation Hearings Open To The Public
Decision Is Appealable
If Canceled, Water Becomes Subject To Appropriation By
Applies To Perfected Rights
Applies To Groundwater Rights Only
No Notice Of Non-Use Required
Ability To Cure
Relinquishment And Intent To Forsake
Burden On Party Asserting Abandonment
Difficult Burden To Satisfy
State Engineer Reluctant To Pursue Aggressively
Finding Water Rights
Water right number
Water Right Files
State Engineer Decisions
Not Record Title
Evidence of non-use or adverse use
Water Rights Treated As A Real Property Right
Any Change Requires State Engineer Approval
Consumptive Use Of Existing Right
Beware of Supplemental Or Temporary Rights
To Remediate or Avoid Water Quality Issue
Must Be Required Of Another Agency
May Be Denied If Against Public Interest Or Impairs Existing Rights
Recharge And Recovery
Federal Reserved Water Rights
Based on the Federal government’s power, under the Constitution, to reserve water
rights for its reservations and property. Commerce Clause and Art. IV, § 3.
Exercise of federal government’s power to exempt water from appropriation under state
Sources: Congress, President, or treaty.
Exception to Federal government’s deference to state water law.
Implied v. express grant from the Federal government.
Focused on the purpose of the reservation instead of beneficial use.
Priority: The date of reservation.
Quantity: Amount reasonably necessary to accomplish the purpose of the
Actual diversion not required.
Not subject to forfeiture or abandonment for non-use.
Winters v. U.S., 207 U.S. 564 (1908)
Established the basic parameters of the Indian
reserved water rights doctrine.
Congress’ implied reservation of water rights.
“Sufficient water to fulfill the purpose for creating the
Freely transferable. Colville Confederated Tribes v.
Walton, 647 F.2d 42 (9th Circuit 1981).
May be adjudicated in state court under the
McCarran Amendment. Dugan v. Rank, 372 U.S.
Arizona v. California, 373 U.S. 546 (1963).
Colorado River case.
Adopted the “Practicably Irrigable Acreage” (PIA)
Amount of water necessary to irrigate all reservation
lands that are practically susceptible to irrigation.
Not sufficient to show that crops may be grown, but
that they may be grown economically. Arizona v.
California, 460 U.S. 605 (1987) (Arizona II).
Indian reserved water rights to instream flow and groundwater.
Ninth Circuit, Colville Confederated Tribes v. Walton, 647 F.2d 42, cert. denied, 454
U.S. 92 (1981)
Reserved rights may include instream uses (i.e. fisheries).
General purpose, “to provide a home for the Indians,” is sufficiently broad to include
water rights for fisheries where tribe demonstrated reliance on such uses.
Accepted primary/secondary purposes distinction of U.S. v. New Mexico, 438 U.S. 696
Arizona, In re the General Adjudication of all right to use Water in the Gila River
System, 35 P.3d 68 (2001).
Purpose of reservation was to provide a permanent home for the Indians.
Award sufficient water to provide the “minimal need” for the reservation.
Applied Cappaert analysis to Indian reserved water rights.
Wyoming, In re the General Adjudication of all rights to Use Water in the Big Horn
River System, 753 P.2d 76 (1988) (Big Horn I).
Strictly applied PIA standard and primary purpose test.
Rejected claims for instream flows for fisheries.
Declared that reserved water rights doctrine does not apply to groundwater.
Upheld by an equally divided U.S. Supreme Court.
Current shift toward settlement.
Settlements typically resolve major legal and factual
Purpose of reserved right;
Quantification of the reserved right;
Whether groundwater is included;
Transfer of reserved water rights to new uses or off-
Congress has ratified twenty-three water rights
Less risk than litigation under the McCarran
Based on the Winters Doctrine.
Intent to reserve unappropriated water is implied if
the water is necessary to accomplish the purpose
for which the reservation was created.
Question: Without the water, would Congress’
purposes in reserving the land be defeated.
Arizona v. California.
Applied reserved water rights doctrine to non-Indian lands.
Cappaert v. U.S. 426 U.S. 128 (1976)
Stated that federal government reserved only that amount of
water necessary to fulfill the purpose of the reservation, no more.
Held that reserved rights can be used to stop junior surface water
or groundwater users from adversely affecting the reserved water
U.S. v. New Mexico, 438 U.S. 696 (1978).
Distinguished between primary and secondary uses.
If water rights are only valuable for a secondary use, then court
must presume that Congress intended the U.S. to acquire water
rights in the same manner as any other public or private party.
Montana and Arizona courts hold that reserved
water rights doctrine applies to groundwater.
Reliance on Cappaert.
California and Washington courts hold that reserved
water rights doctrine applies to fulfill instream flow
Public Water Reserves