Western Water Law or The Law Of I Got It First!

By
Real Estate Agent with RE/MAX 100, Inc.

While real estate Title insurance policies will not insure water rights or water usage, the ownership of water rights is decided through the water courts.   Nonetheless, a through overview and knowledge of how water is distributed in the west can eliminate potential problems on the part of a potential land buyer.

  

A HISTORY OF WATER RIGHTS

  

Originally in the United States, the English doctrine of water law was applied.  English water law held that an owner of riparian land had the right to the natural flow of water past, over, across, or under his land for domestic use.( Riparian means belonging to or relating to a watercourse, which is defined as a natural stream having a definite bed or banks, that flows on a regular basis)

  

PRIOR APPROPRIATION

The prior appropriation doctrine, or "first in time - first in right", developed in the western United States in response to the scarcity of water in the region. The doctrine evolved during the California gold rush when miners in California needed to divert water from the stream to locations where it was needed to process ore. Customs and principles relating to water diversion developed in the mining camps, and disputes were resolved by simple priority rule. According to the rules of prior appropriation, the right to the full volume of water "related back" or had the priority date as of the time of first diverting the water and putting it to beneficial use. In other words, those with earliest priority dates have the right to the use of that amount of water over others with later priority dates.

Unlike a riparian right, an appropriative right exists without regard to the relationship between the land and water. An appropriative right is generally based upon physical control and beneficial use of the water. These rights are entitlements to a specific amount of water, for a specified use, at a specific location with a definite date of priority. An appropriative right depends upon continued use of the water and may be lost through non-use. Unlike riparian rights, these rights can generally be sold or transferred, and long-term storage is not only permissible but common. 

The first to use water (the senior appropriator) acquires the right (known as a priority) to its future use against later users (junior appropriators).  The first appropriator on a water source has the right to use all the water in the system necessary to fulfill his water right. A junior appropriator cannot use water to satisfy his water right if it will injure the senior appropriator. A senior appropriator may "place a call" on the river. A call requires that the institution which manages the water source shut down a junior diverter in order to satisfy the senior right. Senior appropriators, however, cannot change any component of the water right if it will injure a junior appropriator. Therefore, if a senior wants to change his place of use and this change will adversely affect a junior's interest, the junior can stop the senior from changing the water right. Any change of a water right (time of use, place of use, purpose of use, point of diversion, etc.) cannot cause harm to another water user, regardless of priority.

WATER RIGHTS

For a water right to be created, an appropriation must first be made.  The required elements of an appropriation are the diversion of water ( usually made by removing water from its natural course or location), and the application to a beneficial use ( irrigation, mining, domestic use, for example).  Water rights can fall into two different types; storage and direct flow.  A storage water right is measured in terms of volume (usually acre-feet) and direct flow is measured by a rate of flow (usually cubic feet/sec).

The granting of a water right is the responsibility of the state agency, state engineer or official charged with the administration of water resources.  Along with the approval process, the responsible agency is responsible for the enforcement of the priority system of allocation.

-Jerry Hart

                                                                                                     Denver Real Estate information

Comments (1)

Collin Salazar
Century21 - Salt Lake City, UT
Real estate agent serving Central and Northern Uta

Great info! Thank you 

Mar 04, 2019 01:20 PM