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  • 1. John R. Zimmerman, Esq. parsonsbehle.com
  • 2. 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. 2
  • 3.  Riparian Doctrine  Prior Appropriation Doctrine  Common Elements  Owned By The Public  Right To Use Only (“Usufructuary” Right)  Regarded As A Property Right  Excludes domestic wells (2 acre-feet/year) 3
  • 4.  Units Of Measurement Volume Acre-foot ~ A football field flooded with 1ft of water Diversion Rate Cubic feet/second Acre-feet annually  Surface Water v. Groundwater 4
  • 5. Defined By Hydrographic Basin Perennial Yield Concept Interaction With Surface Water Groundwater Flow Systems 5
  • 6.  232 Basins  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” 6
  • 7.  1865  Geller v. Huffaker (Thomas Creek)  1866  Lobdell v. Simpson (Desert Creek)  1868  Ophir Silver Mining Co. (Carson River)  1872  Van Sickle (Daggett Creek)  1885  Jones v. Adams (Sierra Creek)  1889  Reno Smelting (Truckee River) 7
  • 8.  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 8
  • 9.  Priority  Amount  Purpose  Location  Timing 9
  • 10.  Pre-Statutory Rights Physical diversion Beneficial use within a reasonable time period Unadjudicated Adjudicated  Procedure to determine status of vested rights  Civil v. statutory  Summary of procedure  Statutory Permit System 10
  • 11.  Application  Establishes Priority  State Engineer Form  Map  Fees  Internal Review  Administrative sufficiency  Legal adequacy  Public Notice And Protest (60 days)  Published in local newspaper for 4 weeks  Followed by 30-day protest period 11
  • 12.  Statutory Criteria  Intent to construct diversion works  Financial Ability  Unappropriated Water  Perennial yield  Surface and groundwater treated separately  No Conflict With Existing Rights Or Domestic Wells  Public Interest 12
  • 13.  Additional Considerations  “Justified” Need To Import Water  Conservation Plan (if municipality)  Environmentally Sound  Appropriate Long-Term Use  Any Other Factor  Inventory requirement  Transfers In Excess Of 250 afa  Area of origin protection 13
  • 14.  Application May Be: Approved As Requested Approved With Conditions Denied 14
  • 15.  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 Expertise Legal Interpretations Of Statute And Regulations 15
  • 16.  Authorization To Use Water  Typical Conditions  Measuring Device  Pumping Records  Reasonable Diligence  Proof of completion of diversion works  Proof of beneficial use of water  Extensions of time  Larger Projects  3M Plans  Monitoring  Management  Mitigation  Temporary Uses 16
  • 17.  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  Certificate 17
  • 18.  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  Same Source  Cannot switch between surface and groundwater or between groundwater basins  Perfection Process Starts Over  Consumptive Use Considered If Changing Manner Of Use 18
  • 19.  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 Others 19
  • 20.  Applies To Perfected Rights  Applies To Groundwater Rights Only  No Notice Of Non-Use Required  Ability To Cure 20
  • 21. Relinquishment And Intent To Forsake Burden On Party Asserting Abandonment Difficult Burden To Satisfy State Engineer Reluctant To Pursue Aggressively 21
  • 22.  Ownership  Finding Water Rights  Water right number  Land Description  Water Right Files  Maps  State Engineer Decisions  Rulings  Orders 22
  • 23.  State Engineer  Starting Point  Not Record Title  County Recorder  District Court  Other Records  Irrigation Districts  Site Inspection  Access  Evidence of non-use or adverse use 23
  • 24.  Buyer’s Intent  Water Rights Treated As A Real Property Right  Any Change Requires State Engineer Approval  Consumptive Use Of Existing Right Considered  Beware of Supplemental Or Temporary Rights 24
  • 25.  Temporary  Environmental  To Remediate or Avoid Water Quality Issue  Must Be Required Of Another Agency  May Be Denied If Against Public Interest Or Impairs Existing Rights  Storage  Recharge And Recovery  Federal Reserved Water Rights 25
  • 26.  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 law.  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.  Attributes  Priority: The date of reservation.  Quantity: Amount reasonably necessary to accomplish the purpose of the reservation.  Nature:  Actual diversion not required.  Not subject to forfeiture or abandonment for non-use.
  • 27.  Winters Doctrine 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 reservation.” 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. 609 (1963).
  • 28.  Arizona v. California, 373 U.S. 546 (1963). Colorado River case. Adopted the “Practicably Irrigable Acreage” (PIA) standard. 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).
  • 29.  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 (1978).  Arizona, In re the General Adjudication of all right to use Water in the Gila River System, 35 P.3d 68 (2001).  “Homeland” approach.  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.
  • 30.  Current shift toward settlement. Settlements typically resolve major legal and factual issues: Purpose of reserved right; Quantification of the reserved right; Whether groundwater is included; Transfer of reserved water rights to new uses or off- reservation uses. Congress has ratified twenty-three water rights settlements. Less risk than litigation under the McCarran Amendment.
  • 31.  Based on the Winters Doctrine.  Test: 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.
  • 32.  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 right.  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.
  • 33.  Groundwater Montana and Arizona courts hold that reserved water rights doctrine applies to groundwater. Reliance on Cappaert.  Instream flows. California and Washington courts hold that reserved water rights doctrine applies to fulfill instream flow uses.  Public Water Reserves
  • 34. Happy Pi Day Questions?