Prior Appropriation

Question 1

Elements of Acquiring an Appropriative Water Right

Answer 1

a. Unappropriated water in a
b. Natural stream that is
c. Diverted for a
d. Beneficial use
e. Without waste
f. And proposed appropriation be in public interest (added when jdxs adopted administrative agencies)

Question 2

3 Core Principles of Prior Appropriation

Answer 2

1. Beneficial use without waste
2. Use it or lose it system (i.e., abandonment/forfeiture)
3. First in time first in right (e.g., during shortage, water is shut off according to seniority)

Question 3

Beneficial Use

Answer 3

It’s beneficial use, not location, that drives system.

Defined by state statute (varies by state). To be valid, water right has to be use that is defined in state code.

Common examples include irrigation, municipal, industrial

Serves as basis, limit, and measure of water right.

Question 4

Waste

Answer 4

Water used that is beyond what is necessary for a beneficial use.

Each state defines what constitutes waste and specifies how it is enforced. But it’s not just statutory definition that matters, have to see how it’s been interpreted by courts.

Reason in early days was to ensure as many future junior water users as possible.

Examples include transportation loss through drainage ditches, excessive evaporation, very outdated/inefficient irrigation systems.

Facts to know when determining if crop irrigation is waste: type of crop, irrigation practices, percolation, evaporation, porousness of soil.

Washington retroactively changed definition of waste on existing water right holder, thereby limiting their water right (Grimes).
- Most states have some sort of corollary to Grimes.

Question 5

Enforcement of Waste

Answer 5

States rarely enforce waste:
1. most states don’t have baseline data—don’t require measuring of water use

2. States don’t have enough human power or administrative force to go out enforcing waste and abandonment
3. Many states have exceptions
4. Politics of western water—no sooner way to lose your governorship than trying to enforce abandonment and forfeiture
   - Senior water right holders in system are landed colonizers (i.e., influential, powerful)