I have been interested lately in enforcement of the prior appropriation doctrine in the west. Simply, the doctrine says that the oldest water rights are superior to rights perfected later in time on the same water body.
However, there is a wide range of enforcement of priority in the west. As far as I can tell, California hardly enforces priority. Yes, there are examples of enforcement, but they are the exception. Colorado, on the other hand, enforces priority daily when necessary, using real-time emails and closure of headgates. Nebraska does as well, although not to the same extent as Colorado. Arizona is an interesting case with its current massive adjudication - see this detailed and interesting article by Feller.
I believe the degree of enforcement goes hand in hand with the quality of the underlying water rights. And because water markets require solid water rights, researching these aspects is important. Dan Tarlock, an excellent scholar on water rights, mentions some of the reasons behind differing water rights regimes in this article.
If anyone knows specific details of how each state enforces priority, I'd like to know more.
Bottom Line: Classifying water rights in the west as falling under the prior appropriation doctrine may be true, but the details tell a much more interesting story.
Monday, October 12
Water Right Priority Enforcement
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13 comments:
Ahhh, ... DZ:
I could probably write a few books on this one ...
There are actually, for all intensive purposes, two systems of administration of water rights in Colorado. The east slope ( east of the Continental Divide) and the west slope enforcement of the prior appropriation system.
The east slope is primarily incorporated ditch companies and the west slope is primarily individual water right claimants. ( PLEASE water gurus, ... there are noted exceptions to these generalizations!) Intertwined in all of these are the federal water rights, which do not all have the same internal rules.
Having administered water rights on both sides of the continental divide, the east slope is far more advanced with proper measuring devices and adherence to the principal of "thout shalt not steal". The problem with water administration in CO is there really are almost never criminal penalties, only the threat of civil lawsuits because the law enforcement agencies have insufficient knowledge of the ownership of water rights ... guess what ... Colorado water Courts specifically exclude the confirmation of ownership of the water rights they confirm ! Bummer of a problem considering the establishment of a water right is the creation of real property ... just like real estate, so chains of title are incomplete and difficult to research ... my specialty.
West slope water rights are tough to administer because many diversion structures do not install proper measuring devices and even where they do, the stream flow fluctuates almost hourly ( "a water right diversion can't pressure against the stream"). Access to many diversion structures is also difficult ... I have ridden 30 miles on horseback on the continental divide to change charts on weekly recording devices which are administered a week in arrears.
Governmental agencies are also problematic, because they are continually changing personnel in charge of their water situations and these people have to be trained to understand that their agency is not God and does not control all water on their God's particular piece of God's green earth ... ie Forest Service, Bureau of Land Management, Parks and Outdoor Recreation, Bureau of Reclamation, etc.
There are 7 irrigation divisions in CO on the 7 major stream sources with 7 administrative engineering departments and 7 separate water Courts ... having worked with all 7 of each and the individual recordings of 20-30,000 water rights per division, in all 63 counties, it gets complicated...
and rewarding ( not financially) ... some of us just love a challenge.
All of this is why I encourage the development of a situation that is exempt from the complications because the worst case scenarios have been assumed from the start.
Multiply this description times 4-5states and you get the magnitude ...
Was there any particular scenario you had in mind ?
@Ray -- your comment is directed to Damian, who may respond :)
Damian -
I've been working to learn (and write) more about the implementation of prior appropriation in New Mexico. Here's the short version. Our largest basins are not adjudicated, and therefore enforcement (cutting off junior users) is not possible. Adjudication is enormously expensive, difficult and time consuming. I believe this is an example of what you economists call "transaction costs".
This problem came to a head on the Pecos River when Texas sued because we were not meeting our delivery obligations. Rather than reducing use of water from the over-allocated river by cutting off junior users, the state legislator appropriated the necessary money to buy and retire water rights, taking agricultural land out of production.
"Colorado water Courts specifically exclude the confirmation of ownership of the water rights they confirm"
I'm not sure I understand this...Can you clarify?
And you responded to what I wanted to know more about - perfect. Let me ask some more clarifications:
What was the point of riding 30 miles to check on charts? Do those users so far out of touch complain if someone withdraws out of turn?
And is the point of frequently changing flows on west-slope rivers indicative of the absence of storage reservoirs to regulate flows?
And despite these difficulties, you still try to administer the system properly? Or is there 'enough' water on the west side and so less conflict?
@ John Fleck : Thank you, that is interesting.
"Our largest basins are not adjudicated, and therefore enforcement is not possible."
I would assume this is the case in many areas, but it doesn't have to be, right? The State Engineer's office grants rights, and therefore knows the priority, then it could enforce them itself?
What's weird is that, apparently like CA, the Engineer's office grants/administers rights, but the courts have final say over the rights and they also have exclusive jurisdiction for all lawsuits. This is something that seems to make enforcement difficult...
Do you know about reporting of diversion numbers - as in is there good self-reporting of diversions? Or is this information collected by the Engineer's office and his minions?
Damian,
CO Court adjudications of water rights specifically excluded the confirmation of ownership because numerous ditches would request multiple appropriations in the same adjudication. This was because the ditches were often long and the different sections in the ditch (laterals) served and were eventually completed by different farmers and ranchers within the same ditch system. The Court was not asked to resolve differences of opinion with regard to ownership of the priorities requested, only the source, point of diversion, amount, appropriation date and specified use. Keep in mind that the Court did NOT AWARD water rights ... it CONFIRMED that which already existed and was described to the Court by the applicants.
Adjudications are not difficult. Proper notice is given to all so that all have an opportunity to have their rights confirmed. All have a specified time to file their request for water right confirmation. At the end of the specified time, the Court ceases to accept filings. Hearings commence and testimony is taken. The Court makes a decision and enters a findings of fact & conclusion of law confirming the valid water rights based on the facts & evidence.
Today, in CO the adjudication process is always open, but each calendar year is considered a separate adjudication. All water rights requested in 2008 and before are senior to water rights requested in 2009 regardless of the appropriation dates.
limit reached ... necessary to do new comment
Administration of water rights in CO is complicated by new owners of the old water rights. The new owners are continually changing the use of the old water rights without proper notice to the other water right owners and requests for change of water rights to the Court so that a finding of no damage can be confirmed.
For example, a water right that was confirmed for the irrigation of 40 acres cannot just be changed to irrigate more than 40 acres because a sprinkler system makes that now possible. A water right cannot just be changed for use in a fish pond, golf course or a dude ranch or anything else without going through the process in a Court proceeding so that all potentially damage parties can have an opportunity to determine if their water rights will be damaged by the change.
The water commissioner ( works for the State Engineer's Office) may not discover or care to discover these changes for years. Often these complications are pointed out by potential buyers when the real estate with the water rights comes up for sale. Sophisticated buyers do not buy problems, so changes of water rights are often part of the real estate transaction.
Inspections as to use and measuring devices is always ongoing. 30 mile horseback rides were occasionally required to inspect flumes, recorders and proper diversion.
Surface water administration is much better than groundwater administration ...
There is enforcement in Arizona, but one must apply to the Adjudication Court. To the best of my knowledge, all attempts to enforce senior rights through the Courts have been, or are currently being considered.
Last week (October 5 - 8) there was an evidentiary hearing on one such matter. There is a problem in that if the alleged junior user has a colorable claim in the Adjudication, that appears to act as a bar to shutting them off now.
Also, (speaking generally) I think the issue is complicated because the senior users do not want all their water "now." Consequently, the juniors may use water now. I'd be surprised if the law (in any state) allowed a senior user to stop an up-stream junior from taking water that would flow past the senior's diversion point unused.
Anonymous
True in CO ... a senior water right holder may not "call" for his water and then not take it. That is why a lot of streams dry up downstream of the senior calling point of diversion. There are ways to remedy this situation...
you asked if anyone had more detail on enforcement of rights in their state. I do not have any more detail, however, your request reminded me of a law review I read earlier this year out of the University of Denver Water Law Review. (Read Howe on Water Law [pdf].) It helped me understand how complex this issue is in Colorado. Comments posted in reaction to your enforcement post have helped me even more.
TS:
Ahhh, my old friend Howe ...
It is interesting to note that the Co State Engineer's substitute supply plans were eventually ruled ... not !
Proper notice always brings out the best of arguements against a bureaucratic decision that is not supported by the facts, evidence or the law.
Decisions involving property rights are always best left to the Court and proper notice !
More on groundwater administration in CO...
There are very few high capacity wells to administer west of the continental divide. Domestic & commercial exempt wells are exempt from administration except addherance to the conditions of their permits.
The lack of groundwater administration east of the continental divide resulted failure on the part of CO to live up to its compact obligations on the South Platte, Arkansas and Rio Grande Rivers ( dating back to the 1940's and since the water rights determination act of 1969). Administration after the fact has resulted in near economic and real estate disaster in these 3 drainage basins. Adequate augmentation was not possible due to the size of the groundwater depletions and damage to the surface water rights.
By real estate disaster, do you mean that the land is now worthless w/o water? And by economic disaster, you mean that the supported ag economy is taking a hit?
I assume these users tried to purchase/lease water from others during this time. Is that what you mean by augmentation? Why not successful?
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