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Water Law

Barbri Review

QuestionAnswer
WY appropriation system Rejection of riparian doctrine; State engineer head of it; Water of all natural, springs, and lakes within state are property of state; Gives better right; No appropriation denied except in public interest
WY Constitution establishes Board of control, Water divisions, State engineer
Public rights to use water Bed of navigable (can boat on it) waters passed to state on admission; Bed of non-navigable water remains vested in US until transferred into private ownership with land adjoining river
Public rights to use water- "Day" Public can float on streams & make incidental uses (fishing/hunting); Persons floating can disembark & wade around shoals & obstructions; Cannot cross private lands to reach streams; Land owner cannot obstruct stream to interfere w/public right to use
Water subject to appropriation- WY Constitution All streams, springs, lakes, other collections of surface water; Waste water and seepage which will reach natural stream subject to appropriation
How much water do you get? 1 cfs (cubic feet/second) per 70 acres; Handy measurement: 1 cfs run for 24 hrs = 2 acres feet;
Nature of appropriation right 1. Priority, 2. Beneficial use- a. Nature of use, b. Efficiency, 3. Diversion
Nature of appropriation right- Property right Water right is a real property interest, can be sold separately from land
Nature of appropriation right- No limit on place of use Water can be diverted to other drainage
Priority First in right; No sharing in times of shortage
Priority- Relation back doctrine Date of priority is date of application for water right
Diligence- Key concept for development of west Date of priority is date of application; Appropriate must be completed within time frame on application (3 yrs ground, 5 yr surface)
Diligence- Key concept for development; Good cause extension of deadline Pursue project with reasonable diligence; Spending money for studies, EIS, litigation, development of markets, may constitute good cause; Seek extension before permit expires
What is required to perfect an appropriation?- Beneficial use Basis, measure and limit of right to use water; Appropriation not complete until beneficial use occurs; Nature (type): Domestic, municipal, industrial, etc.; Efficiency: Limited to amount reasonably required for purpose; Cannot WASTE water
What is required to perfect an appropriation?- Diversion If in-stream flow right then held by state; Means of diversion protected if reasonably efficient
Administrative System State engineer administers permit system; Board of control (5 engineers) adjudicates rights; Territorial rights adjudicated at turn of century (earliest rights); State engineer's office contains all water rights records
Obtaining Water Right WY: Water right must be obtained to diver and use water; Apply to SEO, reviewed and granted or returned for additional info.; Permittee authorized to proceed, given certain time to complete
Obtaining Water Right- Rejection application Application can be rejected- 1. No water available, 2. Conflict with existing rights, 3. On public interest grounds, rarely used; Applicant appeal to Board of Control, then to District Court, Supreme Court
Adjudication by Board of Control Final step in finalizing water right; Project completed, water put to beneficial use; Inspection, advertisement, possible objections; May have public hearing; Certification of appropriation
Calls On the River Senior water right calls the river; Futile call: Water must be legally and physically available; Misdemeanor to diver without permit; Obligation to maintain ditches
Water Transfers and Marketing Transfers from agriculture to municipal or industrial
Water Transfers and Marketing- No injury rule Junior appropriators entitled to conditions of stream as they found them
Water Transfers and Marketing- Selling water right Water rights sold separately from land through water deed, can only be by transferred under change of use law; Exception: Condemnation (changed to preferred use), Storage, Lands submerged
Change In Use or Place of Use Petition to State board, 5 years of water use; Need good diversion records, hydrologist, crop consumptive use expert; Only transfer amt historically consumed consider conveyance losses); Transfer up or down river if exchange worked out
Change of Use Cannot- 1. Exceed amt historically diverted, 2. Divert higher rate, 3. Consume more than historically consumed, 4. Decrease return flows, change place of returns or "cause injury"; Must be put to beneficial use before change allowed
Change of Use- Other factors Economic loss to community and State of discontinued use; Extent economic loss offset by new use; Other sources available
Other Changes in Water Rights Change in point of diversion; Change in location of well; Temporary changes (common, approved for up to 2 yrs); Transfer of reservoir right (secondary permit); Exchanges of water rights
Other Recent Changes Recent temporary transfers- North Platte
Recapture and Reuse Can recapture and reuse on original land; To use waste water on other lands must get permit; Appropriator of seepage of water cannot demand continued seepage
Rights to Imported Water Importer of water from another watershed may reuse water, make successive uses or dispose of it without regard to junior appropriators; Rights not lost by abandonment; SEO and Board have no control over change to imported water
What is the Property Interest? State= right to control terms & place of use; Direct flow water right attached to land for which appropriated, may detach by water deed; Water right for irrigation appurtenant to land (conveyance of land conveys water right, but be careful w/condemnatio
Recapture and Reuse- "Franks" North irregators had runoff (waste water) that made it to south property owner; South property owner filed for permit to appropriate waste water; S. Ct. held recapturing water from own land you can continue to put it back on to land, but permit for othe
Groundwater Basic rules like surface water; Wells must have permits; Control areas established where groundwater use is high
Groundwater- What? Very broad, any water than ca be extracted from ground; Hot water and geothermal steam; Spring yielding less than 25 gpm, used for domestic or stock
What is the Property Interest?- Conveyance of land and water rights; "Rennard" Water right conveys with property unless water deed states something different; Lower water right owner can go onto land to clean ditch as long as reasonable
Groundwater- What?; By-product water Groundwater permit if diverted before mixed with surface water
Groundwater- Permits File application; If not critical area granted as matter of course if means of diversion and construction adequate; May deny if not in public's interest; Must complete construction diligently; Adjudicate well after put to beneficial use
Control Areas Established around State to protect irrigation pumpage (conflicts b/w groundwater users); State engineer broad power to control pumping/limit new wells/, set maximum pump amts, unadjudicated wells adjudicated (permits no issue as matter of course)
Control Areas- Board Control area board set up to consider new uses/wells
Selected Groundwater Issues- Priority for domestic and stock wells 25 gpm or less Statute= Automatic priority for domestic and stock wells that pump 25 gpm or less; Take priority over other ground priority
Selected Groundwater Issues- Interference with other wells SEO investigate complain to interference; No right to certain level of water; Pay= unclear, if it is person asserting right or person taking all water (industrial may just redrill or sink well lower)
Selected Groundwater Issues- Groundwater mining (nothing recharging well, depleting aquifer) No statute in WY; Other states- 1. Prohibit, or 2. Regulate
Selected Groundwater Issues- Integration of ground and surface water rights Correlation of priorities
Storage rights Must get permit to construct reservoir; Not attached to any particular lands, may be leased, sold, transferred; Not subject to change of use procedure; Can get secondary permit to link stored water to land
Storage rights- One fill rule Reservoirs can be filled once each water year- Oct. 1 through Sept. 30; Reservoirs must store as soon as water available
Reserved rights Federal and Indian reserved rights; Reservation for amt reasonably necessary to meet the purpose of reservation; Big Horn I, II, III, IV
Abandonment (good bar question) Fail to use water 5 successive years when water available; Intent to abandon no defense; Must petition board; Beneficial use prior to petition preserves right (State engineer can bring); Standing jurisdiction requirement
Abandonment- Supplemental rights Permit from state engineers office to get water from another source to accomplish 1 cfs/70 acres May be abandoned; Ct made policy
Abandonment- Requirements to bring Action Water user who might be benefited, or injured by reactivation; Must be tangible as opposed to theoretical interest; Improvement of priority is not benefit, too speculative and uncertain
Abandonment- Standing; Possession Must possess valid adjudicative water right or permit of EQUAL OR JUNIOR STATUS to water right sought to be abandoned
Abandonment- Standing; Reliance Water right relied on by petitioner and water right sought to be abandoned must be from same source of supply
Abandonment- Standing; Not same stream system Does not mean same stream system that contributed to petitioner's water supply
Abandonment- Standards Groundwater rights can be abandoned, but proof standards are high; Improvement in priority not sufficient to prove benefit or injury
Abandonment- Defenses Lack of water (no choice) excuse abandonment (must prove by expert testimony/records); File abandonment action before water put back to beneficial use (even after 5 yr period); Non-use NOT voluntary, b/c of circumstances beyond non-users control ("Scott
Abandonment- Recent cases; "Snider" Board of control granted abandonment; S. Ct. reversed holding petitioners lacked standing; Petitioners failed to show water right would be benefited by abandonment, or injured by renewed use of right
Interstate allocation- Equitable apportionment U.S. S. Ct. has original jurisdiction (North Platte litigation); Each state entitled to equitable shares of benefits of stream
Interstate allocation- Allocation by compact WY party to compacts on almost all major drainage; Compacts approved by Congress
Interstate allocation- Congressional allocation; "Arizona v. California" U.S. S. Ct. needs congressional power to allocate interstate bodies like lower Colorado river
Abandonment- Defenses; "Scott" S unable to get water so went to M's property to see why; M changing use on land says will not affect forever, BUT does; M files for abandonment of S right; S. Ct. cannot commit bad acts by preventing water from reaching land and then file for abandonm
Water Law Bar Questions Focus Abaondonment- 1. Standing, 2. Generally do not like to uphold actions' "Rennard" question; Change of use statutes in determining if change of use should occur; No injury rule; Big, broad concepts
Created by: dmoore147