CHAPTER 4 APPLICATION FOR NEW SURFACE WATER APPROPRIATION AND ACQUISITION OF EXISTING SURFACE WATER APPROPRIATION
| Jurisdiction | United States |
(Mar 1978)
APPLICATION FOR NEW SURFACE WATER APPROPRIATION AND ACQUISITION OF EXISTING SURFACE WATER APPROPRIATION
Kirven and Kirven
Buffalo, Wyoming
I. Introduction
The energy shortage and the need for development of alternate sources of energy have created a greatly increased demand for water. Due to the availability in the Western states of large deposits of uranium; oil shale; and low-sulphur coal which can be converted into synthetic natural gas, gasoline or other energy products, or which can be used as fuel for boilers replacing oil or natural gas, there exists a unique problem to be solved by industry. Plentiful supplies of these minerals are located mainly in the semiarid West, a geographic area that does not have an abundance of available water. How, then, does industry locate and develop an adequate and secure supply of water so that it may convert these minerals to an alternate energy use?
In this paper we will consider only surface water of a western state, both streamflow and reservoir. Ground water, Indian water, reserved Federal rights, and water available from Federal reservoirs will not be discussed since these are subjects of other papers being presented at this Institute.
II. Western Water
Traditionally, the western states subscribe to the appropriation doctrine as opposed to the common law riparian rights doctrine. The riparian rights doctrine grants to the owner of land contiguous to a stream the privilege of having the stream flow through his land undiminished in quantity and quality. Strictly speaking, the doctrine would not have permitted any use of the water in the stream. Of necessity, the doctrine was modified to allow use for domestic, household and livestock purposes. As time went on these uses were enlarged to include irrigation. A riparian user may use so much of the stream contiguous to his land for domestic, household and livestock uses as he finds necessary, but
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other uses are restricted to what is a reasonable amount considering the needs and uses of other riparian owners on that stream. Continued use is not necessary, however, and the riparian right is not forfeited by non-use. As we will discuss later in this paper, the permitted non-use of a riparian right is in sharp contrast to the appropriation right doctrine.
Under the law of appropriation, a water right is acquired by diversion of water from a natural watercourse and then making beneficial use of the water so diverted. Although the western states have differing methods of applying for a water appropriation and the granting of a permit, the methods are generally similar in nature. A common trait is that the priority of the right relates back to the time that the right was initiated, and "first in time, first in right" is a long-standing truism. Furthermore, non-use, even though without intent to abandon the water right, can result in forfeiture.
Today it is usual in the western states that a written application for a permit be filed with a specified state authority. (Colorado does not have a permit system but the judiciary grants the right to use the water of the State.) The information required on the application and the details of the application, its processing and eventual ripening into a valid water permit, are governed by statutes and regulations of the state authority.
In dealing with the appropriation doctrine and the constitutional and statutory provisions which brought about its eventual adoption by the western states, it should be remembered that the doctrine commenced as a necessary means of providing water for miners and agricultural users. Those early and continuing requirements led to the adoption of statutes, usually written by engineers, which eventually centered upon the needs of agriculture. The statutes in existence today in the western states were primarily designed to cover the use of water for irrigation, domestic, livestock and municipal needs and recognize only those early "industrial" uses related to mining, milling, waterwheel and turbine power generation. Only in recent years have demands been placed upon western water for large amounts needed in connection with industrial development, primarily in the energy field. These new uses were not contemplated by existing law and thus we sometimes find the statutes and regulations not readily adaptable to today's industrial requirements.
Some of the western states recognize preferred uses of water. For example, the present Wyoming statute1 reads as follows:
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"Water rights are hereby defined as follows according to use:
Preferred uses shall include rights for domestic and transportation purposes, steam power plants, and industrial purposes; existing rights not preferred, may be condemned to supply water for such preferred uses in accordance with the provisions of the law relating to condemnation of property for public and semi-public purposes except as hereinafter provided. Preferred water uses shall have preference rights in the following order: First — Water for drinking purposes for both man and beast; Second — Water for municipal purposes; Third — Water for the use of steam engines and for general railway use, water for culinary, laundry, bathing, refrigerating (including the manufacture of ice), for steam and hot water heating plants, and steam power plants; and Fourth — Industrial purposes. The use of water for irrigation shall be superior and preferred to any use where water turbines or impulse water wheels are installed for power purposes; provided, however, that the preferred use of steam power plants and industrial purposes herein granted shall not be construed to give the right of condemnation."
As can be seen from this statute, strangely enough, irrigation is not a preferred use, while industrial purpose is a preferred use, although the preferred use of steam power plants and industrial purposes cannot exercise the right of condemnation. Prior to an amendment in 1955, which was sponsored by industry, it was possible in Wyoming for an irrigation user to condemn industrial water and convert its use to irrigation. As the matter stands now, the holder of an industrial use permit is specifically barred by statute from condemning any other water right while the holder of an irrigation right cannot condemn an industrial use right because the industrial use is preferred and the irrigation use is not.
The need for mineral development in the West today places great stress upon the development of water which remains available for use by industry or water which can be converted from another use to industrial use. Thus, we are in an era where water acquisition plans must be modified
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to conform with existing statutes while at the same time efforts are being made to allow for new concepts of use by industry while protecting existing water rights. These changes can be accomplished by amending the statutes and seeking court decisions which give a broader view to existing law. Naturally, such proposals cause uneasiness among the holders of existing water rights who have used them for long periods of time under historic uses that are not industrial, but more likely agricultural.
Since there is not space nor time to cover the laws and regulations of each State in detail, I will mainly use Wyoming as the state whose laws and regulations will be followed in describing the process of obtaining a new streamflow or reservoir permit, or acquiring an existing non-industrial permit and converting it to industrial usage, all under the appropriation doctrine. (There is attached as Appendix "A" a summary of the water doctrines subscribed to by the various western states, which also sets forth the name of the state official or agency in charge of water administration in the states.)
III. Assessment of Water Need
The first requirement, of course, is to determine the total amount of water needed by the mineral developer (usually computed on an annual basis); the rate of delivery needed; the volume that will be consumed; the volume which may be recycled for further use; and the point of use. Presumably the in-house or retained engineers of the mineral developer will furnish to management these required figures and the different uses to be made of the water. (The volume of water is measured in acre-feet; one acre-foot is the amount of water which will cover one land acre to a depth of twelve inches. The measurement of water flow is in cubic feet per second. One cubic foot of water per second will in twenty-four hours supply approximately two acre-feet of water.)
IV. Source of Supply: Stream or Reservoir?
After determining how much water is needed and where it is to be used, the next problem is "where will the water come from?" The usual choices are:
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(a) Application for a permit to divert streamflow water.
(b) Application for a permit to divert and store reservoir water.
(c) Acquisition and conversion of an existing streamflow permit.
(d) Acquisition of an existing reservoir permit.
(e) Purchase of water from a reservoir owned by a third party.
Obviously, familiarity with the geographic area surrounding the location of the mineral to be developed should suggest one or more possible sources of water, either nearby or at a distance. The evaluation of the availability of water from a specified source should be undertaken by engineers with a thorough knowledge and background in water. Very possibly this will require the use of engineers different from those who supplied the data as to water requirements for the industrial process. The study of water availability is complex. Much time and expense can be saved if the engineers retained already possess the required skill and experience with water sources, measurements, diversion, storage and use.
At this time legal counsel should be assigned to work with the water...
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