A SURVEY OF STATUTES GOVERNING APPROPRIATION OF WATER RIGHTS IN TWELVE WESTERN STATES

• Jurisdiction: United States

Water-Energy Nexus: Acquisition, Use, and Disposal of Water for Energy and Mineral Development
(Sep 2012)
CHAPTER 2B
A SURVEY OF STATUTES GOVERNING APPROPRIATION OF WATER RIGHTS IN TWELVE WESTERN STATES
William A. Paddock
Carlson, Hammond & Paddock, L.L.C.
Denver, Colorado

WILLIAM A. (BILL) PADDOCK is the manager of Carlson, Hammond & Paddock, LLC, in Denver, Colorado, where he practices water law. Mr. Paddock is a graduate of the University of Colorado School of Law. Upon graduation he joined the water unit of the Colorado Attorney General's Office and during his tenure mere represented state agencies in water rights matters. He was the legal advisor to Colorado's Compact Commissioners on the Arkansas River Compact and the Rio Grande Compact, and became the head of the water units and was responsible for the supervision of the then on-going federal reserved rights and Indian reserved rights litigation in Colorado. In 1985, Mr. Paddock went into private practice. He is now the manager of Carlson, Hammond & Paddock, L.L.C., in Denver, Colorado, and has a diverse practice that includes, among other things, representing agricultural, municipal, and industrial clients in water rights, water quality, federal land use, and environmental matters. Mr. Paddock has tried numerous water rights cases in his career, many of which have involved complex groundwater modeling. He has authored numerous articles, including law review articles on the 1906 Convention that allocated water of the Rio Grande between the United States and the Republic of Mexico, and on the Rio Grande Compact of 1938. Mr. Paddock is also the Colorado Reporter for the Rocky Mountain Mineral Law Foundation's Water Law Newsletter.

INTRODUCTION

The water laws of the twelve states lying west of the 100th meridian all follow, to a greater or lesser extent, the doctrine of prior appropriation. All of these states, with the exception of Colorado, have adopted laws that require all appropriators to obtain a permit from the state to initiate and perfect a water right. Even Colorado has adopted a permit process for appropriation of groundwater. Each of these states also have procedures for the recognition and quantification of water rights that came into existence prior to statehood or prior to the enactment of the statutory schemes that require a permit as a condition of making an appropriation. The majority of these states also have adopted adjudication procedures to quantify and establish priorities for water rights and to deal with federal reserved water rights and water rights of Indian tribes. Despite the many similar features of each state's water laws, each state's law has been tailored to the unique circumstances and needs of the state. The result is a large and complex body of statutes, regulations, and local customs of practice designed to meet different needs and goals of each state. Thus, while in broad outline these twelve states follow the doctrine of prior appropriation, no two states are alike in how they implement and administer the prior appropriations doctrine.

What follows here is a survey of the law of these twelve states that focuses, in broad outline, on the procedures for obtaining a water right, changing a water right, conveyance of water rights, and appeals of agency or judicial action.

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1. Arizona

A. Acquiring a Water Right

In Arizona a water right is acquired by a permit issued by the Arizona Department of Water Resources (the "Department").¹

A permit from the Department is necessary to use or divert surface water in Arizona unless one of the following applies: 1) the water is from the mainstream of the Colorado river, in which case a contract with the Secretary of the Interior is required; 2) the person or the person's predecessor-in-interest, lawfully appropriated the water prior to June 12, 1919 and the person or the person's predecessor-in-interest has filed a statement of claim for the appropriation with the state; or 3) the water is stored in a stock pond constructed after June 12, 1919 and before August 27,1977.²

For those requiring a permit to appropriate water the application must include (1) the name and address of the applicant; (2) the water supply from which the appropriation is applied for; (3) the nature and amount of the proposed use; (4) the location, point of diversion and description of the proposed works by which the water is to be put to beneficial use; (5) the time within which it is proposed to begin construction of such works and the time required for completion of the construction and the application of the water to the proposed use; (6) the application shall be accompanied by maps, drawings and data prescribed by the director.³ Applications for appropriations of water of a stream for generation of electrical energy in excess of twenty-five thousand horsepower require prior legislative authorization.⁴

In Arizona, as between two or more pending conflicting applications for the use of water from a given water supply, when the water supply is not sufficient for all applications, preference is given according to the relative values to the public of the proposed use.⁵ The relative values to the public for this purposes are (1) domestic and municipal uses, which includes gardens not exceeding one-half acre to each family; (2) irrigation and stock watering; (3) power and mining uses; (4) recreation and wildlife, including fish; and (5) nonrecoverable water storage pursuant to section 45-833.01.⁶

The Department must approve a completed application "unless the proposed use conflicts with vested rights, is a menace to public safety, or is against the interests and welfare of the public."⁷ If the application is approved, a permit to appropriate is issued to the applicant, which authorizes the permitee to construct the diversion works and put the water to a beneficial use.⁸

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After submitting proof of appropriation, the Department issues the permitee a Certificate of Water Right ("CWR").⁹

Arizona has a separate regulatory program for groundwater. The Arizona Groundwater Code (the "Code") of 1980 established three management schemes within the Department: (1) Active Management Areas ("AMAs");¹⁰ (2) Irrigation Non-Expansion Areas ("INAs");¹¹ and (3) those areas that follow general state-wide provisions for the administration of groundwater.¹² No permit is required for wells drilled outside the boundaries of an INA or AMA.¹³

Within AMAs--Phoenix, Tucson, Pinal, Santa Cruz, and Prescott¹⁴ --there are three types of withdrawal rights: First, there are grandfathered rights that are based on historical use at least five (5) years prior to AMA designation.¹⁵ Second, there are withdrawal rights granted to municipalities, private water companies, and irrigation districts.¹⁶ And, third, there are rights to domestic wells that do not require a permit.

As the name suggests, INA are areas where the state has deemed the expanded use of irrigation detrimental to the groundwater supply thus placing limitations on irrigation.¹⁷ The current INAs are Douglas, Joseph City, and Harquahala.¹⁸

Permitting of new groundwater uses is similar to the process for acquiring a surface water right.¹⁹ Well permits are required for (1) dewatering permits issued pursuant to section 45-513; (2) Mineral extraction and metallurgical processing permits issued pursuant to section 45-514; (3) general industrial use permits issued pursuant to section 45-515; (4) poor quality groundwater permits issued pursuant to section 45-516; (5) temporary permits issued pursuant to sections 45-517 and 45-518; (6) drainage water permits issued pursuant to section 45-519; and (7) hydrologic testing permits issued pursuant to section 45-519.01.²⁰

Groundwater withdrawn pursuant to a dewatering permit is subject to use in the following order of priority: (1) to meet mineral extraction, metallurgical processing and environmental control requirements of the permittee; (2) to a city, town, private water company or farm and any other person whose respective ability to withdraw groundwater has been adversely affected by a dewatering permit; (3) for municipal, commercial, domestic and industrial needs of communities and residential areas directly related to the mineral extraction and metallurgical processing operation of the permittee; (4) to irrigate land owned or controlled by the permittee which is entitled to the use of groundwater for irrigation; (5) to the director for

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such distribution as will best achieve the goals and purposes of the management plan for the active management area; and (6) for such other legal purpose as the permittee elects.²¹

B. Conveying a Water Right

Applications for water rights, permits, and certificate are all assignable in Arizona.²² A person to whom an application, permit, certificate of water right or statement of claim is assigned must notify the Department of the assignment by filing a "Request for Assignment of Surface Water Applications and Claims" form.²³ A water right may be severed from the land to which it is appurtenant or from the site of its use for purposes other than irrigation.²⁴ And with the consent and approval of the owner, such right may be transferred for use for irrigation of agricultural lands or for municipal, stock watering, power and mining purposes and to the state or its political subdivisions for use for recreation and wildlife purposes, including fish, without losing priority.²⁵

C. Changing a Water Right

To change the point of diversion, or type or place of use of an existing water right, an application for a permit is required.²⁶ Generally speaking a water right may be severed from the land to which it is appurtenant or from the site of its use if for other than irrigation purposes and with the consent and approval of the owner of such right may be transferred for use for irrigation of agricultural lands or for municipal, stock watering...