Public Lands and Natural Resources Law: LACJR..................Last Update: March 11, 1996
Water Rights on Public Lands
Following is a very short course needing revision...these notes were done in a hurry so expect
See Coggins, et al., 1993, Federal Public Land and Resources Law, 3rd ed., Ch. 5. pp. 363-421.
Water is critical to life; and to economic success in the arid west: 90% of all water allocated in the
eleven western states is used for irrigation.
Land management agencies hold water rights as an individual person would, and they fall under the
heading of "Person" in the adjudication of water rights.
The management of lands adjacent to streams -- whether it involves timber harvesting, grazing,
mining or drilling -- has implications for stream water quality. Many uses cause erosion. Erosion
of soils leads to sedimentation, increased turbity, perhaps an increase in temperature and quantity
of runoff. This is not only significant from a practical standpoint, but from a legal one as well,
because a water right is defined by quality factors as well as quantity and time factors.
Acquisition of water rights / Resolution of conflicts
The allocation of water is traditionally a matter of state law, but a limited role for federal
government exists. Property, Commerce, Treaty and Supremacy clauses of the Constitution provide
ample authority for Congress to legislate on water issues -- remember that valid federal laws will preempt
conflicting state laws. Intrastate conflicts are resolved by state water law.
Interstate conflicts: resolution may be by one of three ways:
i. Congressional Apportionment by Legislation
Congress can legislate the allocation of water among states, as it did with regard to the Colorado River, and
Congress can affect state water law when it legislates or regulates flows for navigation and flood control purposes,
or for water pollution control purposes.
ii. Interstate Compacts
Negotiated by states; require congressional approval before becoming valid.
iii. Judicial Review - Equitable Apportionment
The Supreme Court has original jurisdiction over stream adjudications between states -- interstate
controversies -- and appoints a Master to hear the case and issue findings of facts, conclusions, and
an order. The entire Court then reviews the Master's determinations for a final approval.
3 Systems of Water Law: Riparianism / Prior Appropriation Doctrine / Mixed
Derivative of English law, and applicable in eastern states where rivers and water are abundant. With numerous watersheds,
sharing a communal resource via allocation based on proportion, fairness, equity, balancing needs makes sense.
"Natural uses" and right of riparian owners to a "natural flow" ; water must return to
the stream -- riparian area only; no use outside the watershed.
- "Reasonable use" -- nonriparian use is permitted if it meets criteria for reasonable use.
Actual damages required for a claim or "call on the river". No title by prescription; such as in adverse
possession of land.
2. Prior Appropriation (Colorado) Doctrine
Mining customs were the basis for the doctrine. Key concept: first in time, first in right.
Traditional requirements for a water right include:
Traditional beneficial uses (see KSAs Chapter 82a e.g.) include:
- Intent to Appropriate
- Physical Diversion -- actual diversion
- Application to a Beneficial Use -- defined by law -- involved consumption of the water traditionally -- evolving concept
- Diligence in building diversion works was required; originally the date pertained to first
efforts to construct the diversion works; ie the first acts which would give others notice of
the intent to appropriate. Now the date is set by date of the application per statutory filing
"Waste" is not allowed, but the definition of waste changes over time.
- Power generation
- Stock watering
An appropriative water right is defined by factors such as:
- usufructory -- right to use with obligation to return, public interest is integral, not to own,
but "real" property in Kansas (K.S.A. 82a-701(g))
- date in time of appropriation
- specific quantity of water
- point of diversion, and right to divert
- rate of diversion
- identity of use
- location of use
- appurtenant to land; except for municipal uses
- (possibly) a season of use
- recorded in county Register of Deeds
- (distinguish between a "paper right" and an actual right based on actual amounts applied to
a beneficial use)
The prior appropriation doctrine also means that:
Water rights are considered to be property which has value and can be transferred by sale or gift.
Now in Kansas all transfers of water rights must be approved by the Division of Water Resources
which administers all laws pertaining to water resources in Kansas.
Junior right holders are protected by the doctrine of vested rights -- a senior right cannot be sold
to someone who will decrease the amount of the return flow and thus reduce the amount
previously available in the stream (and relied on by junior right holders).
"Efficiency" = consumption rate, and cannot change in a transfer. Thus irrigation rights, which are
very low efficiency in nature (because most water returns to the stream in theory) have little real
value to a city looking for drinking water and other municipal or industrial uses because the
consumption (efficiency) would be much higher in reality. Thus a city purchasing water rights
from farmers may end up paying as much as eight times the "face value" for water rights.
If a senior right is impaired the holder can legally make a "call on the river" -- demand that the
enforcement officer, ie David Pope, Chief Engineer of Division of Water Resources in Kansas --
enforce his priority. Compliance with relevant state laws -- permitting system -- is of course
required for holding water rights.
3. Mixture (California Doctrine)
Many western states, including California, Kansas, Nebraska, the Dakotas, Oklahoma, Texas and
Washington incorporate both doctrines into their water law. But all western states have moved to
the prior appropriation doctrine by statute. In Kansas, the riparian doctrine ruled until 1945.
Under riparianism, individuals and families acquired vested rights by actual use of surface and
ground water. After 1945, under the Kansas Water Appropriation Act, K.S.A. Ch. 82a Waters
and Watercourses 82a-701 et seq., all water rights except for domestic use had to be acquired
per the prior appropriation doctrine and the state's permit system.
Modern trends or changes: instream flows vs. diversions
Many states have enacted minimum stream flows legislation to protect fish, wildlife, recreation,
and aesthetic values, incuding Kansas. But it is a state agency that has the water rights involved,
and they are typically very junior rights because of the date at which the state legislatively set the
minimum stream flows. Some states have applied the public trust doctrine to determine if
diversions should occur. But not Kansas. See Meek v Hayes, 246 Kan. 99 (1990).
Water rights are usufructory, real property according to the statutes, but they are subject to
adequate supply which is known to be not constant (like land). Prior appropriations doctrine is
predicated on the principle that juniors will legitimately lose the water represented by their rights
before seniors. The definition of beneficial use will change over time. Therefore, water rights are
not as real property as land and buildings. The reduction of such rights, by ordering a reduction in
quantity used for irrigation, for example, may or may not be a taking of property without just
compensation under the Constitution. The state supreme court will probably have to decide the
issue for Kansas sometime in the near future.
When there are conflicting uses on rivers within a state, appropriate administrative
agencies, starting with the Division of Water Resources in Kansas, (or a court) will hold stream
adjudications to determine priorities, rights and responsibilities of the parties involved.
Note that water planning at the state level in Kansas is done in the state Water Office
through a state water plan and other efforts (SEE K.S.A. 82a-901 et seq.).
- Coggins and Glicksman, CBC Environmental Law Series; Public Natural Resources Law, Ch. 21.
- Tarlock, A. Dan, CBC Environmental Law Series; Law of Water Rights and Resources
- Trelease and Gould, 1986, Water Law: Cases and Materials, 4th ed., West Publishing Co.
- various articles by John Peck et al, eg. Legal Aspects of Water Resources Planning, 37 Kansas L. R. 199-318 (1989).
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