Prior Appropriation Flashcards
What is required for acquisition of a PA right under common law?
1) Notice
2) Intent
3) Diversion
4) Beneficial Use
What are the elements of a common law PA right?
1) Beneficial use (purpose and quantity)
2) Priority date (relation back) (first in time)
3) Right to reuse
4) Prohibition against waste in diversion, delivery + use.
5) Appurtenance
What is reclaimed water?
Water used for municipal purposes, which,
after such use,
is treated and suitable for direct beneficial purpose or use that otherwise would not occur.
OR does not require a permit for reuse so long as no significant impact on fish/wildlife and “intended” to improve water quality.
Protection for affected rights if waste discharged for five years and more than 50 percent of average flow.
What are the elements of abandonment?
Actual relinquishment and intent.
Must be proven be clear and convincing evidence.
May have presumption of intent after long periods of voluntary nonuse.
What is forfeiture?
Statutory—failure to make beneficial use over a continues period.
Defenses.
What are the key features of a PA statute?
1) Water property of state/pubic.
2) PA adopted as way to obtain water right.
3) State entity issues permits for water use + recognizes vested rights.
4) Adjudications
What are the three steps to acquisition of a PA right under statute?
1) Application
2) Development (reasonable diligence)
3) Proof
How are public interest standards applied to proposed uses?
Generally burden on applicant to show proposed use is in the public interest.
Deference to agency interpretation of what the public interest requires.
What are the basic elements of a PA permit?
1) Time period for development (reasonable diligence in construction)
2) Conditions identifying:
- Source of water
- Place of use/POD
- Type and amount of use
- Period of use
- Priority date
3) Other conditions to protect the public interest.
Can you get an extension for development of a PA permit?
Maybe. Consider:
Good cause
Public interests affected
Compliance with terms of permit.
Undeveloped permit is the portion for which extension is needed; water not put to use at time permit expired.
Can you get an extension for development of a PA permit?
Maybe. Consider:
Good cause
Public interests affected
Compliance with terms of permit.
Undeveloped permit is the portion for which extension is needed; water not put to use at time permit expired.
When does a statutory PA right vest?
After final agency action, conclusion of appeals process.
How may a state protect water instream?
1) withdraw body from appropriation
2) Establish resource protection standards in application review process
3) Set minimum streamflows
- Have force of instream rights in WA
What does “overappropriation” mean?
When there are water rights that are not satisfied in some period of years, or season of the year.
What is unappropriated water and how do different states calculate it?
Water available to appropriation b/c it’s not subject to existing rights.
CO—Based on “historical diversions” under absolute decrees only.
OR—Based on “expected demands from all rights,” including conditional rights.
WA—Based on natural streamflow, existing storage, expected demands, and instream water rights.
WY—Based on “appropriative limit”, paper rights.
