THE APPROPRIATIVE RIGHT AS COMMON LAW
John W. Bird1 FASCE
Problems of water rights, obligations and duties asso-
ciated with water and the use of water are generally treated
as though they belong to either of two classes: riparian
and/or appropriative. The riparian right is typically re-
ferred to as a "common law" right while the appropriative
right is often called a statutory right. The statutory
right is that which is introduced or governed by statute
law, as opposed to the common law or equity; and a statute
is an act of the legislature declaring or commanding some-
thing (2)2. The common law is that body of law and juristic
theory which was originated, developed, and formulated and
is administered in England and has been adopted by most of
the states and peoples of Anglo-Saxon stock (11). It is dis-
tinguished from the statutory law that is created by the
enactment of legislatures and comprises the body of those
principles and rules of action relating to the government
and security of persons and property which derive their
authority solely from usages and customs of immemorial an-
tiquity, or from the judgements and decrees of the courts
affirming, recognizing, and enforcing such customs (4). In
specifying the common law of England, it is generally accept-
ed that the law was accepted in its form as of the date of
acceptance, and any changes in the common law of England
after that date do not apply in the state where the common
law was assumed (7). Since we are most familiar with statu-
tory law, a further examination of the common law may be
Some of the principles, maxims and usages may have ori-
ginated in unrecorded, lost, or destroyed legislative acts.
The common law of any American jurisdiction is generally
considered to be made up of the English common law, with
such modifications as are required for the different condi-
tions and circumstances that exist in the individual state.
Chief Justice Shaw, of Massachusetts, explained that a great
part of the municipal law of Massachusetts, both civil and
Associate Professor, Civil Engineering Department, Univer-
sity of Nevada, Reno, Nevada 89557.
2Numerals in parenthesis refer to corresponding items in
Appendix I REFERENCES
IRRIGATION AND DRAINAGE AND WATER RESOURCES
criminal, is an unwritten and traditionary law. It has been
common to denote this as 'the common law of England', be-
cause a large portion of it has been derived from the laws
of England. That law includes many of the English statutes
passed before the immigration of our ancestors and as such
constituted a part of the law by which, as English subjects,
they were governed when they immigrated. Incorporated into
that body of law were the statutes, modifications and amend-
ments that were adopted in the colony or province by general
"In addition to these sources of unwritten law, some
usages, growing out of the peculiar situation and exigen-
cies of the earlier settlers of Massachusetts, not traceable
to any written statute or ordinance, but adopted by general
consent, have long had the force of law. Indeed, con-
sidering all these sources of unwritten and traditionary law,
it is now more accurate, instead of the common law of En-
gland, which constitutes a part of it, to Call it collectively
the common law of Massachusetts" (4). The same could be said
for every state in the Union except Louisiana.
It is noted that the common law is not a body of rules
universally and automatically applicable as is the law of
gravitation, but owes its power and very existence to an or-
ganized government. Mr. Justice Holmes explained: "The
common law is not a brooding omnipresence in the sky, but an
articulate voice of some sovereign or quasi-sovereign that
can be identified. It is always the law of some state."
(17). In applying the common law, the court will first
examine prior judicial decisions. If it can find an appli-
cable precedent, it will ordinarily determine the controversy
by following that precedent. If it cannot find a previous
case (adjudication) that fully agrees with the case at hand,
it will determine whether any available decisions have suffi-
cient elements in common with it to require or justify an
application of the rules) used in that case. If the court
finds a precedent squarely in point or applicable by analogy,
but determines nevertheless that it ought not to be followed,
or if it finds no pertinent precedent, the court will gener-
ally decide the case as it believes a proper consideration
of history, customs, morals, and sound policy requires. Ob-
viously, in this process the court uses decisions of non-
common law courts (statutes) and nonlegal materials. The
court also gives due weight, insofar as it is able, to the
known truths of all the sciences affecting human experience
and conduct. It should be noted that the resort to the use
of nonlegal materials is not confined to the solution of
common-law problems but is also used, though perhaps to a
lesser degree, in the interpretation and application of
There is no accepted "common law of the United States".
When a common law right is asserted or demanded, we look to
the state in which the controversy originated to determine
the applicable common law. Judicial decisions of the state
must determine how far the common law has been introduced
in each state (9). That is not to say that there is no fed-
eral common law, since it has been held (16) that there is
such a body of decisional law developed by the federal
courts untrammeled by state court decision.
It is generally accepted that the common law of England
includes the concept of riparian rights to water. Under the
common law, a riparian proprietor is one whose land is bound-
ed, or traversed, by a natural stream or lake; and riparian
rights are those which such a proprietor has to the use of
the stream or waters. Among the rights of a riparian pro-
prietor is the right to the flow of the stream in its natural
course and in its natural condition in respect to both volume
and purity, except as affected by reasonable use by other
The Western States
The Western States, upon statehood, usually adopted the
common law of England as a part of their legal fabric (10)
(19). Colorado, for example, adopted the common law of En-
gland but the Colorado Supreme Court held that the riparian
rights doctrine was excluded from the common law when it was
adopted since it was not appropriate to the conditions of
Nevada's experience may be enlightening. Nevada adopted
the common law of England, as a territory, in 1861. This
act was continued when Nevada became a state in 1864. In
1872 the Nevada Supreme Court held that the common law of
the state included the doctrine of riparian rights (20).
This decision resulted in a legal argument and much public
discussion and disagreement over the decision. Fear and
disgust of riparianism was reflected in newspaper editorials
of that time. The Supreme Court was asked to reconsider its
decision (which it did without changing it), and the court
held the riparian doctrine to control in Nevada until 1885,
when it was discarded in favor of the appropriation doctrine
The appropriation doctrine was developed in the Western
States; perhaps officially or legally starting in California
in 1855 in the decision of Irwin V. Phillips (21) but certain-
ly in 1850 when water was directed from Deer Creek in Nevada
County for mining operations. From this time, until 1886 in
Lux v. Haggin, the California courts allowed the appropria-
tion doctrine to develop under their guidelines. The prin-
ciples of prior appropriation spread from California to
Nevada and other states. As it spread it-was taken to the
courts where guidelines were developed and expanded. The
method of appropriation was initiated in agricultural areas
IRRIGATION AND DRAINAGE AND WATER RESOURCES
and in the mining camps without statutory rules or regulation.
Through lawsuits and court proceedings, the variable rules
(from mining camp to mining camp) were made more uniform
across each state.
Since the common law is that law that is found in court
decisions, and results from the customs and rules as adopted
by the local community(s), it is obvious that the appropria-
tion doctrine was becoming a part of the common law of each
of the states in which it was adopted.
In Nevada, for example, it has been reported that water
was taken from the Carson River in 1852 for irrigation pur-
poses and-by 1862 the ranchers were competing with 23 mills
on the Carson for the limited waters that were available (5).
Certainly it can be said that the early appropriation of
water came as a custom or rule of the local community and so
met the definition of a common law. Recall that Nevada be-
came a territory in 1861 and a state in 1864 and so that
custom predated the formation of the territory by nine years.
Certainly that should be enough to show that appropriation
of water was an accepted part of the common law. The common
law is often referred to as the common law of England, and
the United States did not acquire the territory that included
Nevada and California until 1848. Thus it may be assumed
that, since until 1848 all the laws and customs applied in
the Western Region were of Spanish origin, the English common
law did not have standing. The question remains, when does
the immemorial custom begin? In Nevada and California, for
example, appropriation of water commenced before statehood
and the legal adoption of the "common law". If time alone
were to determine the beginning of the common law of appro-
priation, history has shown that water has been appropriated
in California since about 1781, when the Pueblo of Los Ange-
les was formed and water was diverted and distributed for
irrigation purposes (12). Other examples could be cited,
but it is clear that appropriation of water was common and
had existed for a long period of time with apparently no
written statutes and so as part of the common law. The un-
fortunate part of the decisions of Nevada (1885 James v.
Adams) and Colorado (1882 Coffin v. Left Hand Ditch Co.)
was that they did not declare that appropriation was a part
of the common law of each state; but that was not surprising
since the common law is seldom expressly spelled out.
Congress, in passing the Desert Land Act of 1866 (1)
used the words,"Whenever, by priority of possession, rights
to the use of water for mining, agricultural, manufacturing
or other purposes, have vested and accrued, and the same are
recognized and acknowledged by the local customs, laws, and
owners of such vested rights shall be maintained and pro-
tected in the same. .". The choice of words used in the
Desert Land Act implies the Congress believed that appropri-
ation was a part of the common law of some of the states.
APPROPRIATIVE RIGHT 85
The question "Why did the judges of the 1800's refuse
to consider appropriation as common law?" may be answered by
the following example. The Chief Justice of the Nevada
Supreme Court in 1872 was James F. Lewis, a native of Wales
who moved as a child with his family to Utica, New York. In
1856 he moved to Wisconsin where he studied law and was admit-
ted to the bar in 1860. He moved to Nevada in 1862 and prac-
ticed law in Virginia City until he was elected to the Su-
preme Court in 1864. He had worked with miners and mine
operators and was familiar with the appropriation aspects of
mining law. However, all his legal training (in Wisconsin)
taught that the common law concepts of water rights were
riparian. The same could be said of all of the attorneys.
Apparently no one recognized that the appropriation of water
was a common law right. This occurred in spite of the fact
that the courts used explanations such as "In all of the
Pacific Coast states and territories prior to the passage of
the Act of Congress of July 26, 1866, the doctrines of the
common law declaratory of the rights of riparian proprietor
respecting the use of running waters was held to be inapplic-
able, or applicable only to a very limited extent, to the
wants and necessities of the people whether engaged in mining
or agriculture or other pursuits and it was decided that
prior appropriation gave the better right to the use of run-
ning waters to the extent, in quality and quantity, necessary
for the use to which the waters were applied. This was the
universal custom of the coast, sanctioned by the laws and
decisions of the courts in the respective states and terri-
tories and approved and followed by the decisions of the
Supreme Court of the United States." (8).
Statutes for Appropriation
In distinguishing the riparian and appropriation doc-
trines, it is common to call the riparian right a common law
right while the appropriation is termed a statutory right.
If the appropriation is, indeed, only a statutory right, then
modifications to the statutes affect primarily those persons
acquiring a right after the modified statute is passed. For
example, if the legislature passes a statute (1950) that
five years of non-use constitutes a forfeiture of the water
right; does that statute apply to the water right dated 1890?
The court may hold that the provision applies to all rights
acquired after 1950, and since there was no such obligation
applied to the rights acquired before 1950 the legislature
cannot place such a retroactive obligation upon pre-existing
For example, in Nebraska the Supreme Court held that
". the various irrigation acts of this state show an
intent on the part of the legislature not to interfere with
or impair appropriation rights which were vested prior to the
enactment of the 1895 irrigation law." (6).
IRRIGATION AND DRAINAGE AND WATER RESOURCES
If, however, the appropriation is considered to be a
part of the common law, the legislature, in passing the
statutory amendment of 1950, may be merely clarifying a
portion of the common law and providing for a uniform state-
wide application of it. In many mining camps, for example,
the non-use of water for a single summer may have caused the
forfeiture of the right. People in agriculture, however,
have different needs than miners, and it is quite likely
that a period of five or ten years of non-use might be re-
quired to be termed a forfeiture of a water right for the
rancher. In enacting the legislation to clarify the problem
of forfeiture, it may be helpful if the legislature would
preface the bill with a statement such as "To provide a uni-
form application of the common law of appropriation ."
The court could then quite readily determine that the five
years of non-use would constitute a forfeiture on a water
right of any date, even 1890, since that right was acquired
with all the common law burdens.
Common Law of Appropriation
The courts should have no trouble with the assumption
that appropriation is a part of the common law. While it is
true that riparian rights are generally held to be the common
law rule, it has been held that "The common law does not
consist of absolute, fixed and inflexible rules, but broad
and comprehensive principles based on justice, reason, and
common sense, and is of judicial origin and promulgation,
and principles are susceptible of adaptation to new condi-
tions, interests, relations, and usages as the progress of
society may require." (14). It has also been stated that
"common law enforced in Texas is common law declared by
courts of several states, and not common law enforced in
England in 1840." (15). Finally, "It is for the courts to
determine what the common law of the state is." (13). The
fact that the states have not claimed the appropriation doc-
trine as the common law of the state does not mean that they
can't or won't do so but, should they do so, it may provide
a modifying unifying picture of the pre-existing vested
rights and those rights acquired later.
The common law is subject to change and there may be a
trend to consider the appropriation right as a common law
right. In Kansas, for example (18) in 1949, the chief
engineer of the Division of Water Resources reported, ". .
the needs of the people in Kansas have changed so greatly
since the early adoption of the common law as applied to
water use, that the time has come to modify the common law
to the extent necessary to set up a system of appropriation
based on priority of right." It may certainly be implied
that one of the modifications of the common law would be the
inclusion of the appropriation doctrine.
Can the courts adopt appropriation as a part of the
common law? In the 1885 decision in Nevada, Chief Justice
Hawley referred "to the universal custom. .," "to the
system already established by custom. ." and to "the in-
applicability of the doctrine of riparian rights. ." Since
the common law relies, to a large extent, upon the custom of
the locality, it is apparent that in Nevada, at least, it may
be possible to have a declaration that the appropriation
doctrine is a part of the common law of the state. Such a
declaration would provide legal continuity for better control
by the state engineer over the available water in the state.
Portions in the appropriation statutes that have never been
construed in court would be examined as a formalized or
written segment of the common law and not as a separate
entity from the common law. Concepts such as forfeiture for
non-use could be applied to all appropriations, and not only
to those that were acquired after the statute was passed.
In general, this would tend to clarify the entire appropria-
1. Act of July 26, 1866, Ch. 262, 14 Stat. 251.
2. Black, Henry C., "Blacks Law Dictionary," 4th Ed., Pub-
lishing Co., p. 158.
3. Coffin v. Left Hand Ditch Co., 6 Colo 443, (1882).
4. Commonwealth v. Chapman 13 Mete 68 (1847).
5. Dangberg, Grace, "Conflict on the Carson", Carson Valley
Historical Society, 1977, p. 7.
6. Enterprise Irrigation District v. Willis, 135 Neb. 827
7. Herrin v. Sutherland, 74 Mont. 587.
8. Jones v. Adams 19 NV 78 (1885).
9. Kennedy v. Delaware Cotton Co., 4 Pennewill, 477.
10. Koontz, John, "Political History of Nevada," 4th Ed.,
Carson City: State Printing Office, 1960, p. 24.
11. Lux v. Haggin, 69 Cal 255 (1884).
12. Mann, John F., Jr., Pueblo Water Rights of the City of
Los Angeles, California Geology, California Division of
Mines and Geology, December 1976.
13. Miller v. Fairley, 48 NE 2d 217
14. Miller v. Monsen, 228 Minn. 400.
15. Norville-Wilder Hardware Co. v. McCamey, 29 S.W. 772.
16. O'Brien v. Western Union Telegraph Co., 113 F 2d 539,
17. Southern Pacific Co., v. Jensen, 244 U.S. 205 (1917).
18. State Ex. Rel. Emery v. Knapp, 167 Kan 546 (1949).
19. Stat. 1850, C. 95, p. 219 (Califbrnia).
20. Van Sickle v. Haines 7 Nev 249 (1872).
21. Irwin v. Phillips, 5 Cal 140 (1855).
WATER RIGHTS: IMPACT ON STREAMFLOW PROTECTION
by Michael J. Mocek, A.M.ASCE1
The value of maintaining flow in streams and rivers is often over-
looked or, at best, discounted in the planning, design, and operation
of water resource development projects. Nonetheless, adequate flowing
water is essential for such instream values as preservation and enhance-
ment of fish and wildlife resources, water quality control, navigation,
aesthetics, instream recreation, and related off-stream recreation.
Associated values that should also be considered in discussing stream
flow protection include minimizing salt water intrusion and preserving
the delicate ecosystems of our bays and estuaries. These instream and
related estuarine values are, in general, important to the American
public and deserve to be protected and enhanced by those local, state,
and Federal officials and institutions charged with the task of managing
our water and related resources.
There are areas, primarily in the arid and semi-arid Southwest,
where natural streamflow below reservoirs and other diversion facilities
is reduced to zero except during periods of flooding. Although the
natural flow could also have been zero in such areas, there are many
cases where zero flow is a direct result of upstream diversions. This
situation has developed primarily because of the need to store and
divert the precious water for such uses as irrigation and municipal
and industrial water supply to promote the settlement and economic
development of this water-deficient region.
The right to store and divert water in the southwestern States is
generally prescribed under the prior appropriation doctrine of water
rights. The appropriation doctrine provides that the right to divert
water and apply it to a beneficial use may be obtained by permit,
license, prescription, or condemnation. Through this doctrine, the
available waters of many streams have been fully appropriated and, in
some cases, over appropriated leaving little or no flow to satisfy
instream needs. In a case where water has been over appropriated,
during periods of normal or below normal runoff, the principle of
"first in time is first in right" directs that holders of the most
recent appropriations would have to curtail their diversions. Further-
more, streams with water not fully or over appropriated are often
1Civil Engineer, Planning Branch, U.S. Army Corps of Engineers, Fort
considered to have water available for future appropriation without
concern over the needs for instream uses. Most States following the
prior appropriation doctrine have established lists prioritizing the
purposes or beneficial uses for which valid appropriations can be made.
Since the basic goal of this doctrine is comprehensive management of
surface waters to promote economic development, many of the less eco-
nomically intensive instream uses of water were either left off the
lists of valid beneficial uses for appropriation or were assigned a
In contrast, the riparian doctrine has the general effect of
preserving streamflow for the benefit of downstream landowners.
Riparian rights entitle the landowner on the bank of a natural water-
course the use of water not unreasonably diminished, in quantity or
quality, by the acts of others. This doctrine, which is followed in
the water-abundant eastern States, is generally considered obstructive
to full utilization of surface water. Thus, it has the beneficial
(though probably unintentional) effect of maintaining flows for in-
stream uses. This discussion will therefore concentrate on maintaining
flows in appropriated streams.
The courts have been consistent in ruling against streamflow
Protection in States that follow the prior appropriation doctrine.
The Supreme Court of the United States in 1912 handed a decision which
described the right of an appropriator to capture instream flows under
the law of Idaho, a pure appropriation State.2 In 1965, the Colorado
Supreme Court cited the 1912 Schodde ruling in their decision on
Colorado River Conservation District v. Rocky Mountain Power Company.3
The Colorado court stated "the right to maintenance of the 'flow' of
a stream is a riparian right and is completely inconsistent with the
doctrine of prior appropriation." This case emerged after the
Conservation District, acting on a recent statute passed by the State
legislature, claimed that natural streamflow used by the public for
fishing and other recreational purposes for almost 30 years constituted
the basis of a valid prior appropriation. In finding against the
Conservation District, the court noted that no actual diversion had
been made. The court cited the following statement from Board of
County Commissioners v. Rocky Mountain Water Company4 to support the
requirement for diversion: "It should be observed further that as the
act of diversion and the act of applying the water diverted to a bene-
ficial use; are both necessary to constitute an appropriation so
that the continued existence of the appropriation depends on the con-
tinuance of both, diversion and beneficial application." Furthermore,
2Schodde v. Twin Falls Land and Water Company, 224 U.S. 107 (1912).
3158 Colo. 331, 333; 406 P. 2d. 798,800 (1965).
479 P. 2d, 373.
IRRIGATION AND DRAINAGE AND WATER RESOURCES
in 1972, the New Mexico Supreme Court also denied an alleged appropria-
tion for lack of a physical diversion.5
Appropriations have also been denied in cases when the appropriator
would not have proprietory control over the land or the beneficial use
to which the water would be applied. An example is the 1917 Utah case
of Lakeshore Duck Club v. Lakeview Duck Club6 where the court ruled
that the appropriation could not be valid if the "beneficial use" did
not belong to the appropriator. The court further ruled that the basis
of an appropriation "is to take what was before public property and
reduce it to private ownership." To preserve flows for Instream uses
would benefit the general public rather than an individual appropriator
so It is likely such an appropriation would be ruled invalid.
The cases reported herein are fairly typical of the rather con-
servative interpretations that Federal and State courts are taking of
the prior appropriation doctrine of water rights in the western States.
The courts are holding that an actual diversion, application to a
beneficial use, and private control are essential for a valid appro-
priation. In taking such a narrow interpretation, the courts are
ruling against recreation and conservation Interests and others
attempting to appropriate a portion of streamflow to preserve or
enhance endangered instream benefits.
LEGISLATIVE AND ADMINISTRATIVE ACTIONS
Even though the courts have done little to protect streamflow in
appropriative rights States, some relief has come from State legisla-
tures and administrative agencies. At least two States now have
statutes classifying the maintenance of minimum flow to preserve
natural characteristics of a stream as a beneficial use. Other
States are apparently considering similar legislation at this time.
In addition, many of the State administrative agencies responsible
for water rights are including provisions to maintain minimum flows
below the impoundments and diversions which they license or permit.
For example, in several recent permit actions for the storage and
withdrawal of water, the Texas Water Rights Commission has included
provision for the maintenance of streamflow downstream of the
diversion. However, under the existing appropriative doctrine and
judicial interpretations thereof, the minimum flows administatively
required by State agencies are subject to continuing appropriation
requests and litigation and therefore are not a completely dependable
source for protection of Instream water uses.
The Federal government, through the programs of several agencies,
is deeply involved with protecting flows for instream uses. The
Federal hydropower and navigation projects have, for many years,
provided streamflow regulation beneficial for recreation, fish and
5State ex.rel. Reynolds v. Miranda, 83 N.M. 443, 493 P. 2d 409 (1972).
6166 P. 309 (1917).
wildlife, aesthetics, and other instream uses. The Federal Power
Commission has, in the past, included preservation of flows as a
condition of the granting of licenses. In 1968, Congress passed the
Wild and Scenic River Act which is considered to be the first Federal
attempt to legislate minimum streamflows.7 Although this act is quite
significant, its effects are limited because the law only applies to
a relatively small number of our Nation's streams and rivers.
Section 102 of the Federal Water Pollution Control Act Amendments
of 1972 provides water resource development agencies the means to make
widespread, positive impacts on streamflow management.8 This law
provides that, in the planning of reservoir projects, the Bureau of
Reclamation, Corps of Engineers, or other Federal agency will consider
the need for and value of storage to regulate streamflow for purposes
such as (but not limited to) navigation, salt water intrusion, rec-
reation, aesthetics, and fish and wildlife. The law further provides
that the need for and value of storage to regulate streamflow for
water quality shall be determined by the Environmental Protection
Agency. If storage for streamflow regulation is found to be feasible
in a reservoir project, the value will be added to project benefits
and costs will be allocated to "regulation of streamflow." If the
benefits are found to be widespread or National In scope, the cost
allocated to this purpose shall be borne by the Federal government.
Thus, the Congress of the United States has legislated that streamflow
regulation should be, and now is, an important Federal purpose for
water resource development projects. It is now the responsibility of
the agencies involved to deliberately institute the provisions of this
important law for the public benefit.
In his water policy initiatives delivered to Congress on June 6,
1978, President Carter expressed strong concern about the growing need
to protect instream flows. He also expressed a strong position that
the States, not the Federal government, should continue to have pri-
mary responsibility for the management of their water resources. He,
therefore, directed the heads of Federal water resources agencies to
cooperate with the States in activities influencing the maintenance
of streamflow including assessment of needs; data gathering and
sharing; and the planning, design, and operation of Federal water
projects. He also called upon the Governors and Congress to aid in
this effort to protect instream flows.
A summary of the problems of streamflow maintenance in the States
following the prior appropriation doctrine yields the following obser-
1. It appears that, in general, the United States Congress,
State legislatures, and Federal and State administrative
782 Stat, 910.
886 Stat, 817.
IRRIGATION AND DRAINAGE AND WATER RESOURCES
agencies are recognizing the values of maintaining stream-
flow and are taking steps to protect these values; however,
2. The primary obstacle to streamflow maintenance Is the
interpretation by the Federal and State courts that diver-
sion and application to a private beneficial use are
necessary for a valid appropriation.
The future will no doubt bring challenges to the requirement of
diversion and application to a private beneficial use as conditions
for a valid appropriation. A possible basis for challenge of this
requirement is the public trust doctrine. The public trust doctrine
has been used in the past to prevent the destruction and alteration
of resources and has preserved public access to these resources.
There is a'logical extension of this doctrine to protect the instream
values of water for the benefit of the public. Perhaps an equitable
solution will be found that will preserve appropriative rights for
efficient management of a limited resource, yet will also recognize
that streamflow maintenance is an essential beneficial use.
"Appropriation by the State of Minimum Flows in New Mexico Streams,"
Natural Resources Journal, 15: 809-822, October 1975.
"Minimum Streamflows--Federal Power to Secure," Natural Resources
Journal, 15: 799-807, October 1975.
"Remarks of the President on Water Policy," Office of the White House
Press Secretary, June 6, 1978.
"A Survey of In-Stream Flow Protection In the United States--
Methodology Development Program," Idaho Water Resource Board,
Tarlock, A. D., "Recent Developments in the Recognition of Instream
Uses in Western Water Law," Utah Law Review, 1975: 871-903, Winter
Walker, William R., "State Water Right Laws," ASCE National Water
Resources Engineering Meeting Reprint 1908, 1973.
"Water Allocation in Utah--Protection of Instream Uses," Utah Law
Review, 1975: 687-707, Fall 1975.
RESERVED RIGHTS AND FEDERAL CLAIMS TO WATERa
BY Norman Wengert*
The Reserved Rights Doctrine was developed and applied by the Fed-
eral Courts in the semi-arid Western States where appropriation prin-
ciples of water law are dominant, and where the public domain and with-
drawals from the public domain by the Federal Government represent im-
portant aspects of land ownership and management. The Reserved Rights
Doctrine established Federal water rights in the West separate from and
in potential conflict with state principles of Prior Appropriation water
rights. For this reason the Reserved Rights Doctrine has been under
heavy attack, particularly in New Mexico, Colorado, Wyoming, Idaho,
Nevada, and Montana.1 The New Mexico case was argued before the U.S.
Supreme Court this Spring (1978) and a 5-4 decision was announced on
July 3, 1978.2
WESTERN WATER LAW
Western water law, variations of which are found in 19 states, is
governed in varying degrees by the Prior Appropriation Doctrine. As
"appropriation" implies, the right to water under this doctrine is
based on taking or capture, without correlative ownership of land. As
the term "prior" implies, priority of rights are determined by time of
taking. Appropriation was hostile to anyone claiming all of a larger
river, or failing to use water claimed. From this attitude the concept
of "beneficial use" developed. Both principles took form as the "use
it or lose it" and the "first in time, first in rights" rules.
In most Western states beneficial use required diversion from the
natural channel--for irrigation, for mining, or for municipal purposes,
aBackground research on this topic has in part been supported
under a contract with the U.S. Forest Service. Responsibility
for policy statements or errors are those of the author.
*Professor of Political Science, Colorado State University, Fort
Collins, CO 80523; member, Wisconsin Bar. J.D. (1942), Ph.D. (1947),
University of Wisconsin.
IRRIGATION AND DRAINAGE AND WATER RESOURCES
and hence maintenance of instream flow is in question.4 Water rights
are treated as property rights and can be bought and sold like land,
and the purchaser may (with some limitations) divert his water often
many miles from the natural stream.5
In contrast, Eastern law under the so-called "Riparian Doctrine"
involved no property rights in water. The important factor was access
to water, based on ownership (or other access rights) of the bank of a
stream or shore of a lake. In the 19th Century formulation of the
Riparian Doctrine, the water user was prohibited from diminishing the
quantity or quality of the water. Downstream or other adversely af-
fected persons could protect their interests by Common Law nuisance
actions. This concept of non-diminishment was a legal fiction since
anyone who drank a cup of water from a stream or lake diminished its
quantity. But in regions where rainfall tended to average three inches
per month, month-by-month and year-by-year, it was not difficult to
maintain the fiction as to quantity.
A similar fiction was applied with respect to degradation in qual-
ity since the natural assimilative capacity of many streams usually ex-
ceeded the pollution injected into them. Only in the past 50 years
have these fictions required amendment either by statute or by judicial
interpretation. Thus in most Eastern States a doctrine of "reasonable
use" has been developed, and in a few a permit system of state control.
Beginning at the turn of the century, water quality hazards to
public health came under regulation. And since 1948, under Federal
leadership, increasingly stringent pollution control and clean drink-
ing water programs and regulations have been enacted,6 none of which
changed basic riparian concepts.
Evolution of Appropriation Doctrine
It is sometimes asserted that Eastern water law was just not suit-
ed to western conditions of aridity and wide range of seasonal varia-
tion in water flow. This may be correct, but it implies the wrong
reasons for the development of the Appropriation Doctrine and obscures
a fascinating chapter in the development of American laws and insti-
Most of the Western territory of the United States came under
American control as a result of two major acts of cession from foreign
governments--the Louisiana Purchase in 1803, and the Mexican Cession
under the 1848 treaty of Guadalupe Hidalgo. But the peopling of this
vast area, especially the foothills of the Rocky Mountains and the area
west to the Pacific Ocean, was due more than anything else to the dis-
covery of gold and silver. The initial development of these mineral
resources, moreover, was based on capture or taking or squatters rights.
The early miners owned neither the land from which they took the pre-
cious metals nor the water which was diverted, often through elaborate
sluice works, to wash ore-bearing gravel.7
One of the first cases substantiating appropriation water rights
came before the California Supreme Court in 1855.8 The court rejected
riparian rights, since neither party had title to the land, and held
that the "customs of the miners" should be followed. The 1855 Califor-
nia Court quoted no precedents--there were none. Thus was the appro-
priation doctrine launched!
FEDERAL RESERVED RIGHTS
Various Constitutional provisions are available on which to base
concepts of Federal powers over water in the West.9 These include:
the War Power, the Commerce Power (control over navigation and inter-
state streams),10 the Treaty Power (where international waters may be
involved), the Taxing Power, the General Welfare Power (spending), the
Postal Power, and the Power over Federal Property.
The character of Federal water rights in the states adhering to
the Appropriation Doctrine was dealt with in a variety of Congressional
legislation permitting states to alter Common Law principles affecting
private rights but generally excepting Federal rights from state con-
trol.1' Toward the end of the 19th Century the issue of Federal rights
began to be examined in litigation in the Federal Courts.
It is important to recognize, first, that the primary basis for
the Reserved Rights Doctrine lies in Federal sovereign ownership and the
power to manage Federal property--concepts stemming from the original
cession of territory in the semi-arid and arid West to the United States
by previous sovereigns. These Reserved Rights rest not simply on
rights derived fro use, constrained by an obligation not to harm down-
stream interests, as would be the case if Federal rights were derived
from Common Law Riparian Doctrines.
Second, it must be recognized that Federal rights in water have
never been and cannot be subjected to state jurisdiction without ex-
plicit consent of the Federal Government. This Federal supremacy rule
was clearly state in 1899 in a dictum by the U.S. Supreme Court:13
"Although the power of changing the Common Law rule as to
streams within its dominion undoubtedly belongs to each
state, yet in the absence of specific authority from
Congress a state cannot by its legislation destroy the right
of the United States of America "
And nine years later in Winters v. U.S.14 the Court reaffirmed this
view stating "the power of the government to reserve the waters and
exempt them from appropriation under state laws is not denied and could
not be" (emphasis added). Almost 30 years later the Court said "As the
owner of the public domain, the government possessed the power to dis-
pose of land and water thereon together gr dispose of them separate-
Third, the rights of the Federal Government are not qualified by
"first in time, first in right," nor by "use it or lose it" principles.
IRRIGATION AND DRAINAGE AND WATER RESOURCES
The Desert Land Act of 187716 is among the basic statutes in which
the Congress accepted state Appropriation Doctrine to govern private
rights. In addition, some statutes admitting new states, as well as
the Forest Service Organic Act of 189717 recognized the applicability
of Appropriation Doctrine to private rights. But Congress has not con-
ceded that Federal water rights should be determined by state law. The
McCarran Act of 195318 gave state courts jurisdiction in water rights
litigation involving the Federal Government, but the law to be applied
remained Federal Law.
Case Law Clarification
The concept of Reserved Rights, perhaps better named "Reservation
Rights" since they are extensively related to Federal reserved lands,
was first clearly enunciated in the Winter's case9 referred to above.
In this case the United States sued to restrain appellants and others
from constructing or maintaining dams or reservoirs on the Milk River
in Montana which had an adverse effect upon the Fort Belknap Indian
Reservation. The Indian Reservation had been reserved and set apart on
May 1, 1888 as an Indian Reservation (i.e., withdrawn from the general
public domain) by a Treaty with the Gros Ventre and Assiniboine Tribes.
Thus the reserved rights began as of the date of reservation. In ex-
plaining the extent of the rights, the Government argued that "Large
portions of the lands embraced within the reservation are well fitted
and adapted for pasturage and the feeding and grazing of stock .
Other portions of the reservation are adapted for and susceptible to
farming and cultivation and the pursuit of Agriculture and in
order to make them productive_. large quantities of water for the
purposes of irrigating them / will be required_/."
The Government thus claimed all of the waters of the river to
achieve the purposes for which the reservation was created, namely, to
civilize and improve the conditions of the Indians, encouraging in-
dustry and thrift through a settled agriculture (instead of their for-
mer nomadic status). The Court accepted the Government argument and
thus initiated the doctrine that the act of reservation of lands (i.e.,
withdrawal from the general public domain) established a water right
from that date--not requiring use, unlimited in quantity except as
reasonably related to the purposes of the reservation. Until 1963,
however, when the Court decided Arizona v. California,20 it was gener-
ally thought that the Reserved Rights Doctrine applied primarily to
By implication the Winter's case held that, with respect to the
unreserved public domain, Federal water rights were inchoate, subject
to extinction by private or state taking of lands under the various
public land laws. This was clearly the implication of the Desert Land
Act of 187721 which had granted to the States the right to acquire
waters on the public lands in accordance with local laws and customs.
In the so-called "Pelton Dam" case22 the Court pointed out that
". the Desert Land Act severed, for purposes of private
acquisition, soil and water rights on public lands, and
provided that such water rights were to be acquired in the
manner provided by the law of the state of location."
But the Court also stated:
". ./-T_/hese Acts are not applicable to the reserved
lands and waters here involved. The Desert Land Act covers
'sources of water supply on the public lands. .'. .
the lands before us in this case are not 'public lands'
In this connection the Court based its distinction between public lands
and reservations on the Federal Power Act of 192023 which stated:
"'public lands' means such lands as are subject to
private appropriation and disposal under public land laws.
It shall not include 'reservations' ."
"'reservations' means national forests, tribal lands em-
braced within Indian reservations, military reservations,
and other lands and interests in lands owned by the United
States, and withdrawn, reserved, or withheld from private
appropriations and disposal under the public land laws;
This statutory distinction gives special significance to statements in
two other cases:
"As the owner of the public lands the Government possessed
the power to dispose of land and water thereon together or
to dispose of them separately."24
And ". the Federal Government was the initial proprie-
tor in these western lands and any claim by a State or by
others must derive from this Federal title."25
Thus, before turning to Arizona v. California26 and present litigation,
it is important to reemphasize that Federal water rights are property
rights, full2rnd complete, except as qualified by specific Federal
legislation, and limited by the purposes of the reservation.
Arizona v. California
Arizona v. California28 was a complex case.29 With respect to the
Reserved Rights Doctrine the Court upheld the findings of the Master in
the case, stating:
"The Master ruled that the principle underlying the reser-
vation of water rights for Indian Reservations was equally
applicable to other Federal establishments such as National
Recreation Areas and National Forests. We agree with the
conclusions of the Master that the United States of America
intended to reserve water sufficient for the future require-
ments of the Lake Mead National Recreation Area, the Havasu
IRRIGATION AND DRAINAGE AND WATER RESOURCES
Lake National Wildlife Refuge, the Imperial National Wild-
life Refuge and the Gila National Forest (emphasis added)."30
It is important to note that the court interpreted the very act of
establishing a federal reservation as implying the intent to reserve
appurtenant water as necessary to fulfill the purpose of the reser-
vation. The Master is also quoted as having stated:
"The United States of America need not expressly reserve
waters .; an implied reservation is effective. Indeed,
in all of the cases discussed the intent to reserve
water was never explicitly stated .; rather that intent
was implied from the circumstances surrounding the creation
of the Reservation ."
With respect to quantity of water to be implied from such reser-
vation, the Master concluded and the Court seemed to endorse his con-
clusions to the effect that32
"Also, wherever I have found an intent to reserve water, I
have inferred, absent evidence to the contrary, that the
reservation was not limited to the needs of the population
then resident upon the land, nor to the acreage being irri-
gated when the Reservation was created."
Interpreting the reservation doctrine, the Public Land Law Review
Commission, reporting in One Third of the Nation's Land33 stated:
"As successor to the sovereigns from which the United States
obtained the vast areas of the western public domain, the
Federal government possessed complete power over the
land and water of that region. Because the Courts have
settled the issue, there is little to be gained in academic
arguments as to whether the power derives from concepts of
'ownership' as distinguished from 'sovereignty': the power
is plenary, whatever its conceptual basis." / Emphasis
And three pages further the Commission stated:
"In 1963, any lingering doubts about most of the implications
of the reservation doctrine as a source of water rights were
removed in the Supreme Court's decision in Arizona v. Califor-
nia. the Court sustained the conclusions of its Special
Master in that case that certain reservations of public domain
land for particular purposes, i.e., wildlife refuges, a
national forest and a national recreation area, carried with
them an 'implied' reservation of sufficient unappropriated
water to satisfy the reasonable requirements ofthosereser-
vations without regard to the provisions of state law."
/ Emphasis added._/
Three years later, the National Water Commission34 stated the rule
in somewhat similar language, and summarized the consequences of Fed-
eral Reserved water rights as follows:35
"If a reserved Federal water right is determined to have been
created, it has characteristics which are quite incompatible
with State appropriation water law: (1) it may be created
without diversion or beneficial use, (2) it is not lost by
non-use, (3) its priority dates from the time of the land
withdrawal, and (4) the measure of the right is the amount
of water reasonably necessary to satisfy the purposes for
which the land has been withdrawn."
The Rio Mimbres case was not a challenge to the doctrine of reserved
rights, but whether they had been created.
The Effects of Arizona v. California
In one sense, Arizona v. California did establish new doctrine, as
evidenced particularly in the administrative policy of the U.S. Forest
Service and recorded in the Forest Service Manual.36
Before 1963 the Forest Service stressed compliance wih state laws
and procedures, stating in the 1936 version of the Manual' that "All
waters within the boundaries of national forests may be used under
the laws of the State wherein such national forests are situated, or
under the laws of the United States ." But after Arizona v.
California the Forest Service had specifically based its policy on the
reserved rights doctrine, providing only for notice to state water
agencies and cooperation with the states.
And clearly Arizona v. California had an unsettling effect in many
of the Western states, which in turn resulted in the pending suits re-
ferred to previously, including U.S. v. New Mexico involving the waters
of the Rio Mimbres.38
The Mimbres Case and the Colorado Cases
As indicated above, the McCarran Amendment39 provided that cases
determining Federal water rights may be initiated in State Courts.
Thus in 1966 suit was filed as a private action in the New Mexico Dis-
trict Court of Luna County to enjoin "illegal diversions of the Rio
Mimbres which flows through the Gila National Forest in southwest New
Mexico." In 1970 the New Mexico State Engineer filed a complaint-in-
intervention seeking a general adjudication of water rights in the Rio
Mimbres and its tributaries. The named defendants were all parties
claiming any interest in and use of Rio Mimbres water--including the
U.S. Forest Service. After trial in the District Court, the case was
appealed to the New Mexico Supreme Court which issued its opinion (No.
11,094) on May 23, 1977.40 The Federal Government petitioned the U.S.
Supreme Court (Oct. 3, 1977)41 for and was granted a writ of certiorari,
and the case was argued in the spring of 1978 with a decision issued on
July 3, 1978.42
The several pending Colorado cases43 involve extensive claims with
Forest Service for water under the Reserved Rights Doctrine for several
National Forests. The Colorado District Court in one set of cases,
pursuant to Colorado Law, appointed a Master-Referee who has submitted
100 IRRIGATION AND DRAINAGE AND WATER RESOURCES
an 1100 page report44 on his findings of fact and of law and his recom-
mendations on the claims involved. Detailed briefs have also been
filed by the parties so the record runs to several thousand pages. Ob-
viously, these cannot be summarized or analyzed in this paper. Whether
the Colorado cases will also reach the U.S. Supreme Court or be dispos-
ed of under that Court's decision in the Rio Mimbres case has not yet
But before commenting on the Rio Mimbres decision, several points
should be noted. First, the State Supreme Court of New Mexico in Rio
Mimbres and the Master-Referee in the Colorado cases both recognized
the existence of reserved rights. The Master-Referee stated in his
"Although the United States has reserved water appurtenant to
the various reservations involved herein and is entitled to
conditional and absolute water rights therefore, the general
reserved rights of the United States must be strictly con-
strued and may not be granted in as broad and extensive a
fashion as is claimed by the United States. The reserved
right exists only to serve the purposes of each particular
reservation as they existed at the time that the reservation
was created. Those purposes must be derived from and be
limited by the various statutes, executive orders, and procla-
mations by which a particular reservation may have been
established (emphasis in original)."
Neither in Rio Mimbres nor in the pending litigation has the doc-
trine of Reserved Rights been challenged. Most of the argument centers
around the purposes for which the National Forests were withdrawn from
the public domain. And this was at the heart of the July 3rd Rio
Mimbres Supreme Court decision.
The Forest Service Interest
Most interested among the Federal agencies is the U.S. Forest
Service because it manages such extensive acreages which bear a strate-
gic relationship to the headwaters of major western rivers.
With respect to the purposes of the National Forests, two statutes
are of primary importance--the Withdrawal Act of 1891, and the so-
called Organic Act of 1897 (as amended). The first said nothing about
purposes, leaving intent to be inferred from 25 years of Post-Civil War
reports, debate and discusion on national forest policy. The second,
enacted in 1897, provided
". all public lands that may hereafter be set aside and
reserved as national forests shall be as far as prac-
ticable controlled and administered in accordance with the
following provisions. No national forest shall be established,
except to improve and protect the forest within the boundar-
ies, or for the purpose of securing favorable condition of
waterflow, and to furnish a continuous supply of timber for the
use and necessities of citizens of the United States; but it
is not the purpose or intent of these provisions or of the
Act providing for such reservations, to authorize the inclu-
sion therein of lands more valuable for the mineral therein,
or for agricultural purposes, than for forest purposes."
Much of the argument is over the "plain meaning" of the three identified
1. Improve and protect the national forests;
2. Securing favorable conditions of water flow; and
3. Furnishing a continuous supply of timber for the use and
necessities of citizens of the United States.
But this language raises a number of important questions.
In the above quotation from the 1897 Act, for example, what does
the phrase "improve and protect" the national forests mean? "Protect"
would include actions to prevent fires, disease, insect infestations
and human depradations, consistent with the concerns expressed at the
time in Congress, in government reports, in professional pronouncements
and journals, and elsewhere. "Improve," however, poses more difficulty
in interpretation because it can only be defined relative to the exist-
ing condition of particular forests as related to accepted uses. In
Rio Mimbres, the Court did not discuss the meaning of "improve."
Strict constructionists and the Court in Rio Mimbres, sought to
distinguish between purposes of the national forests and uses of the
national forests, conceding that Congress was aware of the various
uses being made of the forests, including grazing and recreation. But
these uses, it is argued, are not to be included as purposes.
Several other aspects of the 1897 Act deserve comment:
--The Act qualifies the statement of the three purposes by saying
that national forests "shall be as far as practicable controlled
and administered in accordance with the following provisions."
This suggests broad administrative discretion rather than strict
construction. It reflects the fact that this statute is an
authorizing statute rather than a restricting or limiting statute.
The majority opinion in Rio Mimbres asserted, contrary to the his-
toric record, that Congress was attempting to limit Presidential
--The language of the Act itself qualifies the purposes by spe-
cifically stating that national forest reservations shall not
include "lands more valuable for the mineral therein, or for
agricultural purposes, than for forest purposes." It is an
established principle of statutory construction that when a
legislature specifically excludes certain items, one may con-
clude that other items not so excluded may logically be inferred
as included. Thus, the inference is reasonable that other uses
such as grazing and recreation were included among the purposes
of the national forests as understood by Congress in 1897. The
majority opinion in Rio Mimbres did not consider this.
IRRIGATION AND DRAINAGE AND WATER RESOURCES
--The 1897 Act provides "Nor shall anything herein prohibit any
person from entering upon such national forests for all proper
and lawful purposes . Provided that such persons comply
with the rules and regulations covering such national forests
(16 USC 478)." Clearly this language contradicts the distinction
between "purposes" and "uses." It supports the interpretation
that grazing, hunting, fishing and other recreation are included
as "proper and lawful purposes," subject to the rule making powers
of the Secretary of Agriculture. The majority opinion in Rio
Mimbres did not address this question.
--The 1897 Act (as amended) authorizes the Secretary of Agri-
culture to "make such rules and regulations and establish such
service as will insure the objects of such reservations, namely,
to regulate their occupancy and use and to preserve the forests
thereon from destruction." "Objects" in ordinary English usage
is synonymous with "purposes." And the "objects" here referred
to involve "occupancy and use" of the forests, as well as their
preservation. Moreover, the Secretary was authorized to estab-
lish service to insure the objects of the forest reservations.
"Service" can only mean such administrative actions as would take
care of human needs resulting from occupancy and use including
provision of water, consistent with the objects of the reserva-
tions. This argument was not considered in Rio Mimbres.
--Finally, in 1897 Congress authorized an inventory of the national
forests by the U.S. Geological Survey based on Congressional
recognition that specific knowledge of the characteristics of
Sthe forest reservations made to that time was lacking. No refer-
ence was made to the U.S.G.S. surveys (which filled three large
volumes based on "cruises" of the reservations) in the Rio Mimbres
So much for the language of the 1897 Act.
If one puts both the 1891 and the 1897 Acts into a broader context,
considering them as reflecting a confluence of forces at work in
American society from the Civil War, then a number of additional con-
clusions seem reasonable and relevant, although rejected or ignored in
the Rio Mimbres decision:
--By 1891, 25 years of discussion and debate had occurred over
what should be national forest policy, particularly with respect
to public domain forests.
--In this same period, numerous government and other reports on
the questions of national policy had been issued, and as of 1898
over 150 bills on forestry had been introduced in Congress.
--There was a substantial split between those who desired a
national policy which stressed use and economic benefits and those
who sought to establish reserves which were to remain forever
wild. The former group--those stressing use and economic develop-
ment, i.e., management, of the forest resource--ultimately
prevailed at the national level, though not in New York. These
were the supporters of the 1897 Organic Act.
--The concern for future timber supply was based in part on
neo-Malthusian concerns of depletion and in part on the belief
that the West would soon be densely populated, requiring timber
and other benefits which the various uses of the national forests
were designed to provide. The concern for timber depletion was a
concern comprehending multiple use opportunities to be provided
by the forests. Improving and protecting forest lands meant
management to achieve multiple objectives or purposes.
--Withdrawal of forest lands from entry under the general land
laws was not regarded as "locking them up" (non-use), but was
regarded by most of those supporting this approach as (a) a
way of controlling fire and restraining lumber barons and timber
thieves, (b) assuring use of the timber resource and the timber
lands for the economic benefit of the people, which included
grazing, hunting, fishing, camping and other recreation, and (c)
assuring sustained yield through scientific management for future
These historical inferences suggest that what Congress and the
nation sought was forest management. Forest management, in turn, could
only be understood and perceived even in 1897 as involving two flex-
ible elements: (a) expected increases in scientific knowledge and in
the technology of management, and (b) adjustment of management to meet
the growing and changing needs of the American people (e.g., population
growth and urbanization, especially in the West, including in hind-
sight the impact of the automobile, especially on recreational uses
of the forests).
The Rio Mimbres Opinion
In Rio Mimbres the Supreme Court implicitly rejected such an
open-ended interpretation of Reserved Rights. It is not clear, in any
case, that such a broad interpretation would in the long run be wise
public policy. But this is a political, not a legal question! Perhaps,
had the Court taken this view, it would have forced Congress to deal
with the issues involved by legislation, as recommended just a few
years before by the Public Land Law Review Commission49 and the National
As indicated, the Supreme Court issued its five to four decision
on the Rio Mimbres case on July 3, 1978 and sustained a narrow inter-
pretation of National Forest purposes, affirming the decision of the
New Mexico Supreme Court. Space does not permit a paragraph -by-
paragraph analysis of Justice Rehnquist's views which are sharply in
conflict with those expressed in this'paper. The position of the
majority can perhaps best be summarized by quoting the Court's own
informal syllabus (digest):
IRRIGATION AND DRAINAGE AND WATER RESOURCES
"The United States, in setting the Gil a National Forest aside
from other public lands, / is / held to have reserved the use
of water out of the Rio Mimbres only where necessary to preserve
the timber in the forest or to secure favorable water flows, and
hence not to have a reserved right for aesthetic, recreational,
wild-life preservation, and stockwatering purposes. That this
was Congress' intent is revealed in the limited purposes for
which the national forest system was created and in Congress'
deference to state water law in the Organic Administration Act
of 1897 and other legislation Underlining added._/
The dissenting minority's chief point was a kind of ecological
argument suggesting that the improvement and protection of the forest
included the wildlife in it.
The tragedy of this decision is that it is to all intents and pur-
poses irreversible for the reason that now, in effect, all private
water rights under the appropriation doctrine have become vested vis-
a-vis National Forest reservations on application of state concepts of
"use it, or lose it," and "first in time, first in right." No reversal
of the Court's narrow interpretation of National Forest purposes would
change the situation. The issues are res adjudicata, settled for all
time, and any use of water by the Forest Service for other than the
two narrowly identified purposes will require payment for water rights
under state law. This could not change, even if at some later time
another Court would modify the Rio Mimbres holding, because property
rights as protected by the fifth amendment would then come into play.
The Court could not have limited the effects of its decision to the Rio
Mimbres and the Gila Forest, since it chose to interpret the 1897
Organic Act rather than simply the Executive Proclamations establishing
the Gila Forest. Thus its conclusions would seem to be binding on all
national forests in the absence of specific statements of purposes and
Executive acts relevant to water, beyond those narrowly implied in the
1897 Act. Indian rights would seem secure, but a new element of un-
certainty has been introduced with respect to other reservations and
clearly the majority in Rio Mimbres will most likely be receptive to
narrow interpretations of purposes determining the extent of Federal
It has been argued, in fact, that one of the major weaknesses of
Appropriation Doctrine, with its stress on property rights in water,
is its inability to take the public interest in changing environmental
and socio-economic circumstances into account.51 The West is changing
rapidly. The uses of the National Forests and other public lands in
the West are also changing, and in this context it is not self evident
that concepts of property rights in water contribute to the wisest and
best policies. By affirming the dominance of state determined prin-
ciples the Court in Mimbres opted for the status quo--in which agri-
cultural and mining interests have shaped the basic objectives of
western water law.
1. State and Federal cases are pending affecting at least 17
National Forests. These are listed in the "Petition for a Writ of
Certiorari to the Supreme Court of the State of New Mexico" filed by
the Solicitor General of the U.S. October 3, 1977, in the case of
U.S. v. New Mexico, 564 P.2d 615 (1977). Certiorari was granted and
the decision issued on July 3, 1978. U.S. v. State of New Mexico,
2. It might be noted that the Supreme Court decision will have
considerable impact upon the outcome of the other pending cases which
are at various stages of litigation. That impact might result in dis-
missal of other cases.
3. Wells A. Httchins, Water Rights Laws in the Nineteen Western
States, 3 vols. Washington, DC: U.S. Government Printing Office, 1971,
4. A. Dan Tarlock, "Recent Developments in the Recognition of
Instream Uses in Western Water Law."
5. The analogy is sometimes suggested that Appropriation Rights
are like sub-surface mineral rights. In a broad sense, this comparison
has some utility, but the flow aspects of water represents a signifi-
cant difference. 1975 Utah L. Rev. 871.
6. The first Federal water pollution law was enacted in 1948.
The most recent in December 1977.
7. Frank J. Trelease, "Arizona v. California: Allocation of
Water Resources to People, States, and National," Supreme Court Review,
Chicago: University of Chicago Press (1963) p. 185. Trelease cites
McGowen, "The Development of Political Institutions on the Public
Domain," 11 Wyoming Law Journal 1 (1956).
8. Irwin v. Phillips, 5 tal. 140 (1855).
9. This list is not necessarily all inclusive. Moreover, the
particular Federal powers have specific and limited applications.
10. The Federal Water Pollution Control Act Amendments of 1972
(33 USC 1160) gave a new definition to interstate waters in which the
Federal Government had an interest. See "The Federal Law of Water Pol-
lution Control" by Robert Zener in Federal Environmental Law edited by
Erica L. Dolgin and Thomas G. P. Guilbert. St. Paul: West Publishing
Co. (1974) at p. 688.
11. For a list of 37 Federal enactments on state water rights see
Subcommittee on Irrigation and Reclamation, Senate Committee on Interior
and Insular Affairs, Hearings on Federal-State Water Rights, 88 Cong.,
1st Session at p. 302 ff.
106 IRRIGATION AND DRAINAGE AND WATER RESOURCES
12. The philosophical Question of whether this is a "just" and
"fair" concept is left for others to explore.
13. U.S. v. Rio Grande Dam and Irrigation Co. 174 U.S. 690 at
14. 207 U.S. 564 at 577 (1908).
15. California-Oregon Power Co. v. Beaver Portland Cement Co. 295
U.S. 142 at 162 (1935).
16. 19 Stat. 377, 43 U.S.C. 321.
17. 30 Stat. 34, 16 U.S.C. 473.
18. 66 Stat. 560, 43 U.S.C. 666. The legislative history of this
Act illustrates the unwillingness of Congress to subject substantive
rights to state control and contradicts the conclusion of Justice
Rehnquist on this question in his July 3rd opinion.
19. Op. cit., n. 14.
20. Arizona v. California 373 U.S. 546, 83 S. Ct. 1468, 10L. Ed.
2d 542, decree entered 376 U.S. 340, 84 S. Ct. 755, 11L. Ed. 2d 757
21. See n. 16.
22. FPC v. Oregon, 349 U.S. 435 (1955).
23. 41 Stat. 1063, as amended 49 Stat. 838, 16 U.S.C. 796 Sec. 3
(1) and (2).
24. California-Oregon Power Co. v. Beaver Portland Cement Co. 295
U.S. 142, 162 (1935).
25. U.S. v. Grand River Dam Authority, 363 U.S. 229, 235 (1960).
26. See n. 20.
27. What the status of Reserved Rights might be in case of the
lands managed by the Bureau of Land Management under its new organic
statute (Federal Land Policy Management Act of 1976, 90 Stat. 2743, 43
U.S.C. 1701, P.L. 94-579) remains to be determined.
28. See n. 20.
29. Op. cit., n. 7, at 158-205.
30. 373 U.S. at 601.
31. At p. 546.
33. Washington, DC: U.S. Government Printing Office (1970) at
34. Water Policies for the Future. Washington, DC: U.S. Govern-
ment Printing Office, June 1973.
35. Ibid. at p. 464.
36. See "Water in the Woods: The Reserved-Rights Doctrine and
National Forest Lands," by David S. Bradshaw, Stanford Law Review 20:
1187-1204 (June 1968).
37. Ibid at 1194.
38. U.S. v. New Mexico (Rio Mimbres) 564 P. 2d 615 (1977). On
Certiorari to the U.S. Supreme Court v. (See n. 1, infra).
39. 43 U.S.C. 66.
40. Cited n. 38.
41. Cited n. 1.
42. Cited n. 1.
43. The number of separate actions is over ten. There would seem
to be no purpose in citing them here.
44. This report is available from the Clerk of the Colorado Water
Court in Glenwood Springs, Colorado. It is in loosefeaf form.
45. Ibid. p. 7.
46. 26 Stat. 1103, 16 U.S.C. 471.
47. 30 Stat. 34; 16 USC 475.
48. This is the view of the Master-Referee in the Colorado cases.
49. Op. cit., n. 33.
50. Op. cit., n. 34.
51. For a balanced and authoritative discussion of problems asso-
ciated with changes in Appropriation Doctrine see Frank J. Trelease,
"Alternatives to Appropriation Law" in Water Needs for the Future, Ved
P. Nanda (ed.). Boulder, CO: Westview Press (1978).
WESTERN WATER LAW AND IRRIGATION RETURN FLOW
George E. Radosevich and Gaylord V. Skogerboe, M. ASCE
Water pollution from irrigated agriculture in the West has received
major attention during the past five years, primarily as a result of
federal and state endeavors to identify irrigation return flow quality
problems and to develop a viable control strategy. The key to irrigated
agricultural return flow quality control is proper utilization and man-
agement of the resource itself, and an accepted tool in our society is
the law. By legal classification, it is divided into laws for quantity
control and laws for quality control. The laws on water quality control
are recent, relatively uniform.between states and with little exception,
constrain improvement of return flows from irrigated agriculture. The
laws pertaining to water resources quantity control and management are
complex, voluminous, inconsistent and lack uniformity among the 17 states
of the West.
An approach has been formulated to incorporate the problem and the
law. The Influent Control Approach is based upon the assumption that
improved water management plus improved agricultural practices will
significantly contribute to improved water quality, and the conclusion
that best management practices plus best agricultural practices will
provide irrigation return flow quality control, which in turn will con-
tribute significantly to the national goal of cleaner water through
improved water quality.
A SYSTEM OF WATER LAW
Water law in the United States is a "federated" system with a
delineation of jurisdiction over water at the national and state govern-
ment levels. Federal government water law is uniform and nation-wide
with regional flexibility in the implementing agency regulations. But,
each of the 50 states adopted quantity control surface and groundwater
S laws with significant variations. State water quality control laws are
more uniform, however, and follow a pattern set by federal legislation.
Surface water laws developed concerning two distinct philosophies
which were consistent with the geo-climatic condition of the state. In
the humid eastern half of the country and along the west coast, the
riparian doctrine was adopted. The more arid western half of the
country was faced with an immediate problem of deciding how to allocate
Assoc. Pr6f., Dept. of Economics, Colorado State University, Fort
Prof., Dept. of Agr. and Chem. Eng., Colorado State University, Fort
IRRIGATION RETURN FLOW
a scarce resource and thus was compelled to develop a system of law
peculiar to arid lands. The result of trial, error and compromise is
the doctrine of prior appropriation. Some states have a varied water
availability and concluded by adopting a mixed riparian/prior appropria-
Groundwater legislation occurred much later in the states due in
part to the lack of knowledge of subsurface supplies and in part to
adequate surface sources. The basic principles for use and control
often followed the surface doctrines, but again each state adopted and
modified the law to fit its perceived needs. Four different systems of
The 17 western states have adopted one or both of the basic water
law systems found in the United States. The system adopted by every
western state is the doctrine of prior appropriation, with those states
on the western seaboard and from North Dakota to Texas also employing
the riparian doctrine to lands adjacent to watercourses. There is a
definite trend to eliminate the riparian doctrine as demand on surface
waters increase. For all practical purposes, most of the states with
both doctrines have relegated the riparian system of surface water con-
trol to an insignificant role.
Those states in the West applying the riparian doctrine follow the
American Rule of Reasonable Use. Under this rule, riparian landowners
can divert a reasonable amount of water with respect to all other
riparians on the stream; and nonriparian lands may, under certain condi-
tions, make a reasonable use of remaining waters.
Waters in states following the riparian doctrines are a public
resource, held in trust for use by the people of the state. Thus, a
landowner whose land borders a stream does not have an ownership right
to the waters of the stream, but rather has a fundamental right by
virtue of his land location to a reasonable use of the water and to be
free from unreasonable uses of others that cause him harm (Rancho Santa
Margarita u. Vail, ZZ Cal. 2d 501, 81 p. 2d 533, 1938). He is essentially
a correlative co-user with all other riparians on the water source and
as between riparian uses, priority of use does not establish priority of
right in times of decreased flows (Pabst v. Finland, 192 Cal. 124, 211
P. 11, 1922). Consequently, his right to the use of water is not a
right for a fixed quantity of flow or volume, but rather is dependent
largely upon the extent of development that has taken place.
Riparian water law does not require a landowner to use the water in
order to maintain the right in good standing. Unless the right to use
water from an adjacent water source has been sold or transferred to
other lands or uses, the right will continue as long as the land and
water is continuous.
Misuse of the right may result in a restriction on use and/or
judgment for damages to those adversely affected. Parties injured
through the misuse must assert their claim in court.
110 IRRIGATION AND DRAINAGE AND WATER RESOURCES
There have been a number of significant recent changes in the water
law of the riparian states primarily brought about by the inability of
existing water supplies to meet the expanding demands on one side, and
a recognition of public interest in water resources on the other. The
changes can be summarized into two major components: 1) establishment
of a permit system to allocate water among certain users; and 2) creation
of administrative machinery to assess water resources through the permit
The riparian doctrine has as an inherent component, the requirement
that a riparian user make a reasonable use of the water and his right
shall not be impaired in quantity or quality by the unreasonable use of
another riparian. Thus, in theory, if the upstream riparian's return
flows were degrading the quality of the water used by a downstream
riparian, the latter has a basis for judicial redress. It must be
pointed out that under the riparian system, an administrative structure
for allocation and regulation of water does not exist (except in those
western states where riparian claimants are required to file their claim
or obtain a permit) and, thus, the injured party must rely upon his
remedies in the courts through a private lawsuit.
The evolution of this doctrine was a fortunate event, for it
proved as useful for agriculture as it was for mining. As mining became
more competitive, many miners and newcomers to the area began farming.
The doctrine protected the first settler to use water on his land.
Later settlers had to respect the prior ownership of land the amount of
water which the prior settler was using. Hence, the clique "first in
time, first in right" symbolized most everything the early water users
were concerned about.
Although there are many variations between the appropriation doctrine
states, a number of key principles exist to establish commonality, if
not relative uniformity, among the states. These principles are:
1. There had to be a division from a natural stream or body
of water. This has been relaxed in most western states
during the last decade to allow in-stream use for
! recreation and fish and wildlife protection.
2. The water must be applied to a beneficial use. Initially,
this was defined in constitutions and/or statutes to be
domestic, municipal, stock watering, irrigation, and
certain industrial and power uses. Some state laws,
like Wyoming, reflect the economic influence of one
sector over another, i.e., the railroad uses were
preferred to agricultural uses. In most of the
western states, however, the rural representation
insured agriculture a high position as a beneficial user.
Beneficial use also referred to the nature of use, but
will be discussed later.
IRRIGATION RETURN FLOW
3. When these two acts were completed, a water right was
created. This right entitled the holder to continued
use so long as the use was beneficial. The attributes
of this right are discussed later.
4. Every water right acquires a priority date such that
priority of right and not equality of right is the
basis for distributing water.
The entire system of prior appropriation is based upon and evolves
around the allocation of water under the concept of the water right.
Simply put, this doctrine creates the right of private use of a public
resource under certain conditions, which use has been declared to be a
public use. The right does not automatically exist by virtue of the
presence of water upon, flowing through, or under land. In all western
states, these waters (some exceptions) are declared to be the property
of the public, people, or State. Regardless of whether the state or the
public (people) own the water, the courts have held the state as a
trustee to the public for the proper allocation and distribution of water
and granting and protecting the right to use the water so allocated.
The right so acquired has two legal characteristics. First, the
right itself is a real property right. It is an exclusive right, which
like other property interests, can be defined, is valuable and can be
sold, transferred, mortgaged, or bequeathed. But the right differs from
the right that attaches to land or chattels, for it is only a right to
use the resource. Thus, it is called a usufructory right.
The second characteristics is that since it is only a usufructory
right and can only be exercised when the water authorized for diversion
under the right is available and can be put to beneficial use, there is
no absolute ownership in the corpus of the water prior to diversion.
This water is still a public resource, and if the right holder cannot
put it to beneficial use, he must allow it to flow past his point of
diversion to other appropriations. However, if he can appropriately use
the water, that water which is diverted into his delivery system is his
personal property until it returns back to the stream or escapes his
The water right under the appropriation doctrine consists of several
defining elements that give it value, dependability and security to the
holder. The right:
exists to a definite source of supply, e.g., specific river,
lake, or groundwater acquifer;
is for a fixed and stated maximum quantity divertable;
has a definite point of diversion to which conditions are
to be maintained as of the time the appropriation took
specifies the type of use for the diverted water;
IRRIGATION AND DRAINAGE AND WATER RESOURCES
identifies the place of use (for application in the case
Implies the annual time of use based upon type and place
of use; and
assures the holder of at least an implied protection to
the maintenance of water quality necessary to carry out
the purposes for which the water was appropriated.
Several systems were developed by the states to allocate water and
provide evidence of water rights. The predominant approach now is the
permit system. An application is filed with the appropriate state agency
who then takes the procedural steps of evaluating and determining its
disposition. If approved, a permit is issued which may contain condi-
tions of use. If denied, the applicant may appeal the administrative
decision to the court. In some cases, the finalized water right may be
called a license or certificate.
A few states have different classes of permits which greatly
enhance their ability to allocate and regulate the use of water among
competing interests. For example, regular, right; seasonal year (irri-
gation season and perpetual); temporary; term and contractual permits.
The cornerstone of water allocation under western water law as it
has evolved is that beneficial use is the basis and measure of the right
to use water. Usually the term "beneficial use" is not defined per se
but is decided on a case-by-case method. It has two aspects, that com-
plicate the concept even more. Water is allocated to a beneficial use,
so for that reason, many statutory provisions list types of uses recog-
nized as being beneficial. Among the uses recognized as beneficial are:
irrigation, domestic, power production, municipal, industrial, recreation
and minimum flows for aquatic life. This short list is not meant to be
comprehensive but, rather only to illustrate the spectrum recognized.
The other aspect is the use of the water itself must be beneficial and
carried out in a beneficial manner.
In addition to the requirement that water will be allocated to a
user for a beneficial use, most states have adopted criteria to be
followed in allocating water to agriculture. This criteria is commonly
referred to as the statutory duty of water.
The majority of states incorporate this into their determination of
the amount to be granted the water right applicant. But several states
have quantified the duty. Little uniformity exists indicating the
difference conditions found in the states. Idaho, Wyoming and North
Dakota allow 1 cfs per 50, 70 and 80 acres, respectively. South Dakota
and Nebraska also allow 1 cfs per 70 acres but no more than 3 acre-feet
per acre. Montana allows 1 miners inch per acre and Kansas varies
between 1 to 2 acre-feet per acre, depending upon the circumstances
(Colume 6, Table 1).
Provisions in Nevada are particularly important to the subject of
This report. In Nevada, the State Engineer is to consider the duties of
water established by court decrees or by experimentation in the area
IRRIGATION RETURN FLOW
where the water is to be used (N.R.S., 533.070). He is also instructed
to consider the growing season, type of culture, and reasonable trans-
portation losses. This flexibility allows the State Engineer to be
precise in allocating water.
As complex as the water law systems are in the West, any situation
taxing the ability of current water supplies to meet increasing demands
will require changes in the laws.
INFLUENT CONTROL APPROACH
Water quality control from irrigation return flows has perhaps
caused the greatest degree of disenchantment among state and federal
personnel charged with carrying out water quality problems under P.L.
92-500 than any other category of pollution sources. Since the time
that first regulations for irrigation return flows were promulgated in
1973, there has been strong and distinct differences of opinion among
the various agencies dealing with water at both state and federal levels
of government, and within their ranks as well. The legal gyrations of
the past five years have caused states to undertake minimum activity so
as not to directly violate any particular law or regulation.
Part of the problem for the disenchantment stems from the physical
difficulties in dealing with the irrigation return flow quality problem
where it does exist. Equally important is the lack of a philosophical
foundation and thrust to resolving a problem of this immense complexity,
as well as inherent resistance to control.
The proposed philosophy upon which to formulate a successful program
for control of irrigation return flow quality consists of four inter-
locking propositions. First, the ultimate goal achieved by the federal
and state agencies is improved water quality by way of improved water
management, with this particular study focusing upon the return flow
characteristics and problems of irrigated agriculture. Second, the
program should promote social and economic well being through cooperative
action. Third, only attack the problem after it has been realistically
identified. Fourth, voluntary compliance is more desirable than forced
or involuntary compliance in implementing a management or control
The underlying them of the ICA can be summarized as:
1. Proof before control.
2. Proceed cautiously and positively.
3. Stimulate voluntary action based on demonstrated need to
4. Maintain relationship between agencies and water users.
5. Create or maintain credibility.
IRRIGATION AND DRAINAGE AND WATER RESOURCES
The Influent Control approach is premised upon ten assumptions.
1. Achieving the goals of P.L. 92-500, the Federal Water
Pollution Control Act of 1972, and policies of federal
and state laws to improve the use of our national
resources is highly desirable;
2. The concept of property rights in water and other
constitutional guarantees will be maintained;
3. The legal procedures of the judiciary and agencies will
4. Improved agricultural practices and improved water
management will result in improved water quality;
5. Irrigation return flow problems and appropriate solutions
to these problems are site specific;
6. Water users (farmers) will respond when it has been
demonstrated that there is a problem to which they are
7. Technical and legal solutions to identify problems must
be appropriate and viable (technically sound, economi-
cally feasible, legally implementable, and socially
8. Many irrigators will respond on a voluntary compliance
9. Those users who do not respond will feel a local social
pressure as a result of being "out-of-tune" with the
newly evolved customs of the community; and
10. Regardless of approach, there will be some users who
will not respond or will resist change, thereby
requiring some mechanism for enforcement.
INFLUENT CONTROL APPROACH COMPONENTS
As was alluded to above, the distinction of this approach to
irrigation return flow quality control is to indirectly correct the un-
reasonably degraded discharges caused by irrigated agriculture by
directly affecting the influent or input to the system. This approach
is based upon the assumption that improved agricultural practices (IAP)
and improved water management (IWM) will contribute to improved water
quality (IWQ). In specific context of this paper, it is further con-
duced that best management practices plus best agricultural practices
will provide improved irrigation return flow quality control (IRFQC),
which in turn yields improved water quality.
IRRIGATION RETURN FLOW
BMP + BAP = IRFQC-----IWQ
Because the nature of agricultural pollution from irrigation is too
complex to rely upon end-of-pipe treatment, the cause of the problem is
examined in its broader context, e.g., present water management and
agricultural practices, with the emphasis upon only those elements of
agricultural practices relating to or having an affect upon return flows.
The concept of best management practices is currently employed by EPA
and the states and refers here to improvements in local water management.
(Local is used to distinguish water quality control within the irrigation
system or subsystem from state and national control.) Best agricultural
practices is used here to include proper land use and proper application
of agricultural chemicals.
To reiterate, every effort in formulating this approach was made to
decentralize the act of control to the lowest common denominator--the
irrigator--because of his ability to voluntarily and directly impact the
quality of return flows and because of a recognition that agriculturalists
traditionally are independent people who prefer to be actors, not pawns.
The components of the ICA thus provide: 1) the design and direction to
irrigation return flow quality control; 2) the opportunity for voluntary
compliance by water users in problem areas; and 3) the means to effec-
tively assert involuntary compliance upon those contributing to the
problem who refuse to adopt better practices by the responsible
The Influent Control Approach is designed to improve water quality
by reducing excessive seepage, tailwater runoff and deep percolation,
reducing sediment in return flows through erosion control and reducing
chemical concentrations in return flows through licensing and/or control
resulting from overapplication of pesticides and fertilizers. Since
irrigation return flow quality problems differ from one irrigation system
to another, the approach provides the latitude to introduce change and
control according to the nature of the problem, without requiring
unnecessary compliance by those irrigators outside problem areas.
Based upon this background, the Influent Control Approach (Figure
1) is designed with eight specific components. The first six components
pertain to improving local water management, with components 1 and 2
having application in the problem area only and components 3 to 6 having
state-wide jurisdiction. Component 7 pertains to land use and chemical
applications affecting water quality and has state-wide jurisdiction.
Component 8 focuses upon the functional ability of agencies to carry
out the program.
The Influent Control Approach consists of the following components
to be carried out by the states:
1. Designate Areas for Irrigation Return Flow Quality
Management and the Responsible Area Entity.
Based upon monitoring and analysis for identifying
significant irrigation return flow problem areas within
the state, the state agency will: a) designate the
IRRIGATION AND DRAINAGE AND WATER RESOURCES
An Influent Control Approach (ICA)
Improved Agricultural Practices + Improved Water Management= Improved Water Quality
(IAP + IWM = IWQ )
Best Management Practices + Best Agricultural Practices = Irrigation Return Flow Quality Control
( BMP+ BAP= IRFQC -IWQ )
BMP = Improved Local Water Management ( ILWM)
BAP = Proper Land Use (PLU)and Proper Application of Agricultural
INFLUENT CONTROL APPROACH (ICA)
BEST MANAGEMENT BEST AGRICULTURAL
PRACTICES (BMP) PRACTICES (BAP)
Improved Local Water Proper Land Proper Application of
Management (ILWM) Use (PLU) Agricultural Chemicals (PAAC)
PROBLEM AREA STATEWIDE STATEWIDE
1. Designate area 3. Introduce incentives 7. AdoptAgricultural Practices
and area entity. for ILWM. Act.
2. Develop standards 4. Add water quality to
and criteria for water rights.
5. Add reporting and Sediment Licensing and control
recording for water and erosion over application of
rights, agricultural chemicals:
fertilizers and biocides
6. Recognize reasonable fertilizers biocide
degradation from Irrl-
gation return flows.
8. Promote close cooperation or integration of state water
agencies and other related functions.
( Rodosevich S Skogerboe, 1977)
IRRIGATION RETURN FLOW
boundaries of the problem area, which may be the
boundaries of an irrigation system or subsystem or
watershed; b) designate an entity, e.g., legally
constituted body representing water users within
the area, to undertake responsibility for working
with the water users, collecting data and dissemi-
nating information. The area entity may be a
newly formed organization, an existing organi-
zation, e.g., irrigation district, that assumes
the program or a federation of numerous existing
organizations in the designated areas; and c)
insure that the entity is carrying out the best
management practices developed for this area, as
well as best agricultural practices.
2. Develop Standards and Criteria for Beneficial Use in
For each designated area within a state, the water
quantity and quality agencies will collaborate to
arrive at standards and criteria for beneficial use
of water. Such standards and criteria will not consti-
tute an impairment or taking of water rights, but rather
be the technical limits of water delivery and applica-
tion under the climatic, soil and other agronomic condi-
tions of the area. These conditions for water use would
be tantamount to a calculated "duty of water" for the
area in light of the return flow quality problems.
3. Introduce Incentives to Use Water More Efficiently.
Historically, the Agricultural Conservation Program
administered under the U.S. Department of Agriculture,
with technical assistance provided by the Soil Conser-
vation Service, has provided cost-sharing funds to
farmers and irrigation districts for irrigation system
improvements, most of which had water quality benefits.
This program has been relatively inactive in recent
years because of lack of funds. However, this program
should play a very important role in the Influent Con-
trol Approach, as a part of the federal-state-local
water users tripartite.
Most western states have revolving funds or low interest loan
programs for water resources planning and development. Generally, these
programs require the applicant to be an irrigation district or other
corporate body. Where such state programs exist, change in the legisla-
tion and/or regulations for participation qualification should be changed
to allow: 1) individual irrigators to qualify; 2) broaden the use of
funds to include on-farm improvement practices as well as improvement
of delivery systems; and 3) include in the objectives of the program
the improvement of water quality. When states have no such programs, a
low or no-interest loan program containing the above three components
should be adopted in order to cooperatively assist with the federal
government and local water users in achieving improved water management
IRRIGATION AND DRAINAGE AND WATER RESOURCES
and agriculture practices.
In addition, dissemination of information about other state and
federal agency incentive programs should be carried out by the state
water agencies, particularly to the designated management areas and
cooperation extended to insure utilization of such programs.
Other incentive programs, which may require legislature enactments
or agency regulations, could include encouragement of trading, leasing
or selling of "saved" water from more efficient practices as an induce-
ment to improve the delivery systems and methods of application. State
or local water markets, under the direction of the State Engineer
(or equivalent state office), could monitor or control the uses of these
To counter the traditional attack against such an incentive program,
it is highly conceivable downstream juniors would be the most likely to
benefit, particularly if they were given priority to pay for this water.
4. Include the Element of Water Quality in
New or Transferred and Changed Water Rights.
The water quality element should be a general
provision added to all new water rights and requests
for extensions, changes in use and transfers, in order
to provide the necessary authority to state water
agencies for later setting and enforcing of numerical
standards (either with respect to water application or
return flows, or both). Where water quality standards
on streams for beneficial use have been realistically
set, such standards can be incorporated by reference
to water rights from that source of supply.
This action may require legislative endorsement, but under the vast
majority of state law, it is conceivable that agency regulations can
initiate this component.
5. Adopt and Enforce a Reporting and
Recording System for Water Rights.
Notice would be given to all water users
and water right claimants to submit a report to
the water right administrative agency indicating
their name, address, basis for claiming right to
use water, use of water, source and beginning
data for water use. Water users may be given
notice by publication in local newspapers. Many
states have already initiated a "tabulation of
water rights" program to acquire this data. It
is necessary, however, to also adopt a system of
annual reporting, indicating particularly changes
in ownership since other material changes (e.g.,
transfer in type and place of use) require state
IRRIGATION RETURN FLOW
6. Recognize Reasonable Degradation From
Agricultural Water Use.
Legislative recognition of this natural consequence
of water use for irrigation purposes is needed at the state
and federal levels. It is commonly accepted that any use
of water for irrigated agriculture is going to result in
some degradation of the quality of return flows. To pre-
tend otherwise is to either continue a process of "playing
the game" or will ultimately remove irrigated agriculture
with its obvious adverse effects. Common knowledge knows
the latter will not occur, but a tremendous and unnecessary
cost to prove it could be extended upon irrigators and the
public through the failure of legislatures to recognize
natural processes of water use.
7. Adopt an Agricultural Practices Act.
Many of the 17 western states have laws and programs
requiring the licensing of agricultural chemical distribu-
tors and applicators with the state Department of Agricul-
ture. The laws and/or programs should be revised or new
legislation adopted to include the following:
a) Sediment and erosion control.
b) Licensing and control over application
of agricultural chemicals to include pest-
icides and artificial fertilizers.
c) Creation of an Agricultural Practices Control
Board consisting of representatives from the
agriculture, water quantity and quality, soil
conservation (if separate) and fish and wild-
life agencies, and appointed members of the
public. The board's functions would primarily
be establishing rules, regulations and pro-
cedures for carrying out a) and b) above an
insuring functional implementation through
coordination and designation of duties to
appropriate state agencies.
8. Promote the Close Cooperation or Integration
of State Water Agencies.
To facilitate the implementation of the Influent
Control Approach to irrigation return flow quality
management, it is important that close cooperation and
coordination exist between state water agencies through
operation of a liaison board or committee, or integration
of the state water agencies under one department.
IRRIGATION AND DRAINAGE AND WATER RESOURCES
Based upon discussions with state water quantity and quality
personnel from all 17 western states, it is apparent that most states
feel a real credibility gap exists between the Environmental Protection
Agency and the State agencies. Missing are the prime ingredients of
credibility and understanding. It is considered necessary:
1. that public officials responsible for carrying out laws
appreciate the position of the water users and the nature
of irrigated agriculture; and
2. that water users appreciate the water quality problems
caused and the often awesome responsibilities and duties
of the federal and state water officials in carrying
out the legislative mandates.
If water users and state and federal agencies will embark upon a
cooperative undertaking, a tripartite relationship can evolve that will
instill credibility and achieve improved water quality. This would once
again get those directly involved with water use and with administration
of laws working together and not through advocates. The tripartite
relationship can develop if personal objectives and discipline orienta-
tions are not allowed to constrain a casual and flexible approach. A
cooperative approach will facilitate the implementation of an action
LEGAL IMPLICATIONS OF INCREASING THE AVAILABLE WATER
V. Phillip Solcel, A.M. ASCE
Ronald K. Blatchley2, M. ASCE
Western States have adopted a legal system of allocating a
scarce water supply to those whose initiative made them first In
time to apply the water to a beneficial use. The law has recognized
both the limited supplies available and the need to efficiently
utilize those resources. Every state prohibits the waste of water
by statute or case law, e.g., Colo. Rev. Stat. secs. 37-84-107
and 37-84-108 (1973), and yet, opportunities to increase supplies
in the face of growing demands are foregone year after year. Is
there a need to revamp our legal system of allocating water to
better meet these needs? Should there be private incentives or
public regulation? These questions set a framework for this paper
and the analysis to follow.
Legal versus Scientific Classifications
Legal theories have drawn fine lines between "developed",
"foreign", "artificial" or "independent" waters for administrative
purposes. Those differentiations have few if any unique physical
attributes and often lead to confusion and contradictions.'Water
can occur in nature in only three physical states and as a liquid,
solid or gas is constantly moving throughout the hydrologic cycle.
This continuous cycle renews some of the water resources of an
area each year and coupled with storage in the system (ground-water
reservoirs, lakes and man-made reservoirs) provides our present
available water supply. With the addition of energy, water in
a solid form changes to a gas (evaporation or sublimation) and
is carried aloft until climatic conditions condense the moisture
into particles heavy enough to fall to the earth's surface as precipi-
tation. Once on the earth's surface the water begins its gravity
flow to the sea across the land surfaces. Throughout the journey
to the sea the initial water supplies are reduced by evaporative
losses, the return of liquid water to the atmosphere as a gas.
The evaporation-condensation-evaporation of water in nature constitutes
the basis of the hydrological cycle. Although this explanation
is overly simplified, it is this cycle which ultimately governs
the available sources of water supply to man.
Given the concept that there is a finite amount of naturally
occurring water in the total hydrologic cycle (less that small
amount lost or gained in chemical reactions), then it becomes clear
that in order to increase a supply locally it must be at the expense
of another locality. One can increase a supply locally by one
SWater Resources Engineer, Blatchley Associates, Inc.
2 President, Blatchley Associates, Inc., 1601 S. Federal Blvd.,
IRRIGATION AND DRAINAGE AND WATER RESOURCES
of two basic means; e.g., Increase a local source (precipitation,
interbasin diversions), or decrease a local sink (evaporation,
transpiration). Only by these two means can the available water
supply be locally increased and then such increase must be offset
by a corresponding decrease at some other locality.
The Place of Water Management in the Hydrologic Cycle
A goal of water management is to increase the supplies where
they are locally needed at the expense of localities where they
are in excess. This then becomes a question of establishing a
priority of needs and instituting an allocation system. The appropri-
ation doctrine is an allocation system instituted in the West to
allow the use of water on non-riparian lands. The diversion of
water from a basin with surplus water to another less fortunate
in water supply or inducement of precipitation in the same manner
is overall water management.
Available water supplies can also be Increased through management
of water supplies at the debit end of the hydrologic cycle, the
evaporation process. Such practices as suppressing evaporation
on lakes, eliminating phreatophytes, modifying forest cover to
reduce evapotranspiration and reducing seepage losses in irrigation
canals all exemplify an increase in available water supply through
a reduction of a sink in the hydrologic cycle.
Besides increasing sources or decreasing sinks, there are
numerous management measures to prolong the local beneficial use
of a water supply. An example is that of reusing the available
water supply. Although recognized as having considerable conservation
potential, a discussion of these delivered supplies will be left
Increasing Available Water Supplies
In 1969 the State of Colorado enacted the "Water Right Determina-
tion and Administration Act of 1969". This Act stated as its legisla-
tive purpose that "... It is the policy of this state to integrate
the appropriation, use, and administration of underground water
tributary to a stream with the use of surface water in such a way
as to maximize the beneficial use of all the waters of this state."
CRS 37-92-102(1) (1973). Further, CRS 37-92-102(2) stated that
"... the future welfare of the state depends upon a sound and flexible
integrated use of all waters of the state,...".
Later in Southeastern Colorado Water Conservancy District
vs. Shelton Farms Inc. 529 P2d 1321 (1974), the Colorado Supreme
Court stated that "As administration of water approaches its second
century, the curtain is opening upon the new drama of maximum utiliza-
tion and how constitutionally that doctrine can be Integrated into
the law of vested rights."
With these statements as Indication of intent, It would seem
that Colorado has taken positive steps toward Increasing the available
water supply. Let us now evaluate the legal realities of increasing
water supplies in Colorado and the other appropriation states.
The most common method of increasing a local source of water
LEGAL IMPLICATIONS OF WATER
supply is by interbasin diversion. All appropriation states recognize
the developer of Interbasin water. Colorado allows the developer
to utilize the water free from river call in the basin to which
he diverts. Colorado law also encourages such practices by CRS
37-82-106(1973) which states "Whenever an appropriator has lawfully
introduced foreign water Into a stream system from an unconnected
stream system, such appropriator may make a succession of uses
of such water ...". This system rewards the developer and promotes
efficient water management by allowing water to be moved from basins
of less demand to those of greater demand. It should be remembered
that this reshuffling of water adds only to the local water supply
at the direct expense of another locality. Transmountain diversions
from the western slope of Colorado to the more urbanized and populous
eastern slope have been effectuated at a capital cost of about
$1,000-$2,000 per acre-foot average yield.
Although this method is by far the most straightforward from
an analytical standpoint, environmental and political constraints
now placed on them are readily translated into economic constraints
that may effectively limit their feasibility. For further discussion
on this topic see Moses, "Transmountain Diversions of Water In
Colorado", Denver Journal of International Law and Policy, Vol. 6,
A second possible large contributor of local supplies of water
is that of weather modification. The concept of artificially increas-
ing precipitation in a locality has recently been explored In great
depth. Recent claims of 10-15 percent Increase of precipitation
at an average cost of $1.00-$3.00 per acre-foot (Journal of Applied
Meteorology, Vol. 14, p 660) have created more than a passing Interest
in this source of water.
Most Western States have statutes concerning the regulations,
policies or permitted research programs for that particular state.
Colorado and the neighboring states of New Mexico and Wyoming have
enacted statutes claiming the right to the atmospheric moisture
within their boundaries. Thus, the water induced to artificially
fall within a state has become available to appropriation within
that state. No claim has yet been litigated of a private entity
claiming the right to waters it has "developed" via weather modifica-
tion. To date, litigation In the weather modification field has
concerned itself with the property rights among Individuals to
the maintenance of the weather conditions that had naturally occurred.
Examples of the present thrust of weather modification law Include
a New York case, Slutsky vs. City of New York, 97 N.Y.S. 2d 238
(1950), In which the court weighed the water supply needs of New
York City more heavily than the right of a resort owner to historical
precipitation patterns. A Texas case, Southwest Weather Research,
Inc. vs. Rounsaville, 320 S.W. 2d 211, on the other hand, felt
that a rancher's right to the normal rainfall outweighed area farmer's
rights to modify the climate through hail suppression.
Inducement of precipitation in one locality is not necessarily
at the direct expense of precipitation in another locality. But
certainly the moisture remaining aloft is reduced and, in the amount
of reduction, not available to those leeward. Whether or not climatic
conditions would have occurred to precipitate this moisture Is
a matter of proof beyond present technology.
IRRIGATION AND DRAINAGE AND WATER RESOURCES
However, it does appear that an incremental Increase In precipita-
tion will probably create an even greater incremental increase
In streamflow. A 5-year study in the San Juan Mountains of southwest
Colorado indicated a ten percent increase in precipitation which
translated into an overall streamflow enhancement potential of
around 19 percent. Because cloud seeding is much more productive
in a period of moisture abundance as opposed to a drought period,
additional water supplies sought to offset water shortages may
require carryover storage facilities.
It would appear that weather modification efforts at present
are best practiced by public entities with the induced precipitation
preferably falling on public lands. This would tend to limit the
liabilities and spread the benefits to those in the public who
have unsatisfied water rights. Although not entirely an equitable
distribution, the benefits would accrue to a class of people who
were in need of the water and had previously entered the appropriation
system to obtain it. This approach has a further advantage in
that inducement of winter orographic precipitation over national
forest lands is a much better understood phenomenon than that of
summer cumulus precipitation over the plains.
For a private individual to practice weather modification
and benefit therefrom, he may be required to show conclusively
that through his efforts precipitation and streamflow increased,
that the increased water supply was under his control, and that
he did not trespass or otherwise cause injury to other appropriators.
This is indeed a heavy and expensive burden to carry and has not
yet been litigated in an effort to claim "developed" water.
Another possible limitation on "developed" water is that of
interstate compact commitments. Although the language of state
compacts and federal treaties did not anticipate a water source
from weather modification, these waters may well be subject to
such agreements. For further discussion of this topic see, Fischer,
"Weather Modification and the Right of Capture", 8 Natural Resources
A third method of increasing local sources of water is by
introducing ground water Into the system which in its normal course
would not be tributary to appropriated water supplies. Colorado
law recognizes a right to nontributary ground water independent
of the priority system as if it were "developed" water. Strangely
enough, only that nontributary ground water beneath the land owned
by applicant is considered unappropriated and it appears that the
water is to serve only those same lands. This riparian attachment
of the water right to the land is somewhat difficult to reconcile
with the "pure" appropriation doctrine in Colorado.
In Kulper vs. Lundvall, 529 P. 2d 1328 (1975), the Colorado
Supreme Court further expanded the nontributary status to ground
water, "...taking over a century to reach the stream ..." and that
"the tributary character is de minimls ... not a part of the surface
stream as contemplated by our Constitution". This case has greatly
expanded the scope of ground-water development in Colorado as few
sources were purely nontributary but many are remote enough to
fall within the de minimis tributary guidelines.
LEGAL IMPLICATIONS OF WATER
Sources of supply enhanced by the reduction of losses (sinks)
to an available water supply have equal, if not greater, potential
to that of Increasing the sources.
One of the most direct reductions of a sink to an available
water supply is that of reservoir evaporation suppression. Total
evaporative losses from fresh-water areas for the seventeen Western
States has been estimated at over 23 million acre-feet per year
(Myers,Evaporation from the Seventeen Western States). The reduction
of evaporation from a free water surface is generally accomplished
by introducing a liquid film to cover the water surface and reduce
the rate at which water molecules transfer from a liquid to a gas
upon addition of energy. This methodology is interesting legally
because of its direct, quantifiable effect on the loss of water
through evaporation. He who choses to Implement such savings may
be rewarded for his actions by decreasing assessments made against
him for evaporation losses or possibly by securing a "developed"
water status for the amount saved.
A second method of reducing a water supply sink was recently
litigated in Colorado in Southeastern Colorado Water Conservancy
District vs. Shelton Farms,529 P.2d 1321. In this case a water
right free from the call of the river was sought for the elimination
of certain phreatophytes (water loving plants, in this case cottonwood
trees) on the Shelton Farms. Although the court seemed convinced
that there was indeed an appalling loss of water to the phreatophyte
growth, it nevertheless denied a decree for this water to those
whose initiative eliminated the phreatophytes. The court found
that," ... thirsty men cannot step into the shoes of a 'water thief'
(the phreatophytes)" and further that "The withdrawal of water
must be orderly, and to be orderly it must come under the priority
system." Thus the court concluded that the phreatophytes had actually
stolen the water from earlier appropriators and to grant a decree
free of river call for this amount would only serve to reward such
a misappropriation of water.
Although the court denied a decree for the waters saved, it
stated that it admired the industry and Ingenuity of the appellees.
While it could not ... condone the removal of water on an ad
hoc farm by farm basis", It indicated that, "No one on any river
would be adverse to a schematic and integrated system of developing
this kind of water supply with control and balancing considerations."
How has Colorado law reacted to its highest court's ruling?
By statute, CRS 37-92-103(9), Colorado allows a plan for augmentation
which is defined as a "detailed program to increase the supply
of water available for beneficial use" but "does not include the
salvage of tributary waters by the eradication of phreatophytes."
Clearly the protection of vested rights has overshadowed the goal
of maximum utilization.
It has been suggested, 43 University of Colorado L.R. 473 (1972),
that rather than deny a water right free from river call to Shelton
Farms for eliminating phreatophytes, a series of priorities be given,
each corresponding to a point in the past at which the growing
phreatophytes consumed a given amount of water. Determination
of the amounts of water consumed and the dates on which this con-
126 IRRIGATION AND DRAINAGE AND WATER RESOURCES
sumption began places a heavy burden on the claimant. It may be
possible to meet this burden through the use of aerial photographs
that show the areal extent of the phreatophyte growth and tree
ring analysis to indicate the age of the trees to be eradicated.
This approach could satisfy the conflicting policies of maximum
utilization of water rights and protecting vested rights. Appropria-
tors senior to the time of phreatophyte consumption would remain
senior to the "new" water right and those appropriators junior
in time would not be injured for they had never relied on the water
consumed by the phreatophytes.
Although this methodology satisfies these two basic legal
questions, it has other more practical constraints. First, in
Colorado, a statute must be changed to allow its usage In plans
for augmentation; and secondly, cottonwoods and saltcedars are
relative newcomers compared to the age of water rights in the over-
appropriated Arkansas River Valley. Elimination of cottonwoods
that have flourished for the last fifty years would, at best, provide
a 1920's water right. A right of this priority in the Arkansas
River Valley would be of insufficient value to begin a stampede
of phreatophyte elimination. In isolated cases it could lead to
an incentive to curtail the waste perpetuated by phreatophyte growth
and area extension.
Another means of increasing the available water supply by
reducing hydrologic sinks is a savings measure considered incidental
to our urbanizing society. As urban development spreads to lands
In their natural or agricultural state, the incidental rooftops,
streets and sidewalks generally create a much larger Impervious
area than that which occurred historically. These impervious areas
cause a much larger percentage of the rainfall to run off the land
surface and into streams than the naturally pervious areas. Although
the concept seems plausible, it has two definite drawbacks. First,
the water supply generated by the impervious areas comes at a time
when it is least needed for irrigation purposes, i.e., during a
rainstorm. To efficiently utilize the water supply generated by
this means would require carryover storage. Another problem with
the claim of this water is the fact that the increased runoff is
partially attributed to rainfall no longer infiltrating the soil
mantle and ultimately recharging the local groundwater. Any claim
of water salvaged by increased impervious areas should quantify
the potential reduction of ground-water recharge that may accompany
This mode of increasing available water supplies is also banned
in Colorado plans for augmentation by statute, CRS 37-92-103(9).
A final technique to increase available water supplies to
be included in this paper entails the lining of irrigation ditches
to reduce the loss of water by exfiltration enroute to the fields.
Again, not all the water realized from this procedure was historically
lost to evaporation. Some of this water infiltrated to recharge
the ground-water supplies on which others depended.
Judicial review of this type of activity is divided. An Idaho
case, Glenn Dale Ranches, Inc. vs. Shaub, 494 P.2d 1029 (1972),
held that a ditch carriage loss of 50 percent was "excessive" and
required lining the ditch. A California case, Tulare Irrigation
District vs. Lindsay-Strathmore Irrigation District, 45 P.2d 972
LEGAL IMPLICATIONS OF WATER
(1935), held that a ditch carriage of fifty percent was not wasteful
and that an irrigator could not be made to irrigate by the "most
scientific methods available."
In an Arizona case, Salt River Valley Users' Association vs.
Kovacovich, 411 P.2d 201, the court held that water saving procedures
inure to the benefit of other water users and not to those who
institute the savings. Arizona recognizes a water right as a right
to irrigate land, not a right to divert a quantity of water. Benefi-
cial use is limited to the land to which the water was originally
appurtenant. Arizona law then places a strong public policy on
protecting vested rights. This protection of vested rights comes
at the expense of management efficiencies that may be realized
through methods of conveying water to the fields.
A Framework for More Realistic Water Management
As can be seen from the foregoing analyses, there are a number
of methods of increasing the sources or decreasing the sinks of
a given local water supply. Although the listing is not meant
to be all-inclusive, it does present a representative cross section
of the means available and, to varying degrees, viable today.
The Shelton Farms case in Colorado enumerated three important
situations where one who adds to an existing water supply is entitled
to a decree affirming the use of such water. These situations
were listed as: (1) when one physically transports water from
another source; (2) when one properly captures and stores flood
waters and; (3) when one finds water within the system, which would
never have normally reached the river or its tributaries. The
court then finds In the case law a distinction between "developed"
and "salvaged" water. It is stated that developed water "implies
new waters not previously part of the river system" while salvaged
water "Implies waters in the river or its tributaries (including
the aquifer) which ordinarily would go to waste, but somehow are
made available for beneficial use." Developed waters are free
from the river call while salvaged waters are subject to call by
prior appropriators under these definitions.
The court justifies the distinctions by stating that "We cannot
airly waive aside the traditional language of the river, and draw
no distinctions between developed and salvaged water. To do so
would be to wreak havoc with our water law."
It can be argued that narrow and artificial distinctions also
wreak havoc with our water law. It is interesting to note that
of the three importation situations where the court will recognize
a decree free of call, the flood water situation hardly fits the
definition of "developed" water. Flood waters are definitely tribu-
tary to the stream and have been a part of that stream's flow on
an occasional basis long before man began'appropriating water.
Delineation of "salvaged" and "developed" waters was done
with the idea of setting guidelines for the administration of a
water law developed to promote an orderly and efficient allocation
of limited water supplies. On a case by case basis these definitions
can be molded, even twisted, to promote order and efficiency but
they are too narrow and too artificial to withstand the myriad
of applications that may present themselves and certainly cannot
anticipate the future water supply developments.
IRRIGATION AND DRAINAGE AND WATER RESOURCES
Determination of the appropriate incentive for increasing
available water supplies should depend upon the ability of the
developer to quantify the increased supply and to protect vested
rights. Quantification must include both volume and time as well
as a continued control or definition of the water through delivery
to point of use.
Interbasin diversions have long been recognized because they
have satisfied the courts in adequately quantifying the right and
in protecting other vested rights. Both measures of proof were
relatively simple in that quantification meant surface water measure-
ment and vested rights were protected because the procedure could
only add, never delete, to the water supply of the basin of import.
Courts were convinced to the point of allowing developers to extract
their water from the stream system out of priority, reuse it and,
unfortunately, label it as "developed water". The privileges afforded
developed water in Colorado have been withheld from tributary waters
in the basin basically because of the evolution of terms and an
overzealous protection of vested rights.
Increased precipitation through weather modification procedures
would seem to fit the definition of "developed water" but would
probably fall short in satisfying other concerns. Quantification
of the volume and timing of increased water supplies are much less
well defined than are transbasin diversions or the protection of
other leeward vested rights.
Introduction of nontributary ground water into a basin should
qualify as "developed" water so long as the proof of nontributariness
is adequate. If that proof is satisfactory, then subsequent control
of the source and protection of other vested rights correspond
to that of interbasin diversions. The inclusion of de minimis
tributary ground water as "developed" water is less well defined.
Ground-water hydraulics can adequately represent an aquifer if
data on that aquifer is known but most de minimis tributary ground-
water sources are deep beneath the ground surface and are relatively
undefined. An even more onerous task may be to show that vested
rights are protected during and after development of the de minimis
tributary ground-water source.
Conversely, the quantification of amounts and the protection
of vested rights under an evaporation suppression program is probably
equivalent to that of a transbasin diversion but cannot enjoy the
same privileges because it Is tributary water fitting the definition
of "salvaged water". Phreatophyte removal, urbanization, and ditch
linings as well as many others are not so easy to quantify but
ultimately are classified as "salvaged water". Regardless of the
salvage aspect of increasing available water supply through decreased
sinks, if quantification is conclusive and vested rights are protected
accordingly, these waters should be allowed the privileges afforded
A more realistic water management basis is that of recognizing
the interrelationship of all water in the hydrologic cycle. Such
a recognition would not directly solve problems and difficult decisions
will still need to be made. The recognition of the hydrologic
cycle-would, however, provide a basis for our policy decisions
that will last beyond the present needs and desires of our society.
Comparing the adjustments to hydrologic sources or sinks on a water
LEGAL IMPLICATIONS OF WATER
balance system would also serve as a constant reminder that water
supplies whether in a solid, liquid, or vapor state are Interrelated
in the hydrologic system. Adjustments at any point in the cycle
may cause an adjustment elsewhere to compensate and it is of consider-
able importance that policy decisions are made with this possibility
The appropriation doctrine grew out of the necessity for change
and has adopted to a great many changes in our society since Its
inception. Changes to incorporate advances in technology and the
preferences of society will generally wait as the legal, institutional
and administrative systems adjust. To accelerate these adjustments
or compile "new" systems of water allocation would surely disrupt
the present economic system built around the appropriation system.
Water supply systems do not operate on a short term basis and to
be economically feasible they rely on a predictable system of water
allocation to recoup their Investments.
Although this is an endorsement of continued use of the prior
appropriation concept, it is not advocating continued piecemeal
adjustments to the system which promote complexity and confusion.
If public awareness and understanding of our water allocation systems
are promoted by making the system simpler, then every effort should
be made to do so. A first step to simplifying our present appropria-
tion system is to provide a scientific basis for the decision making
process. This would include substituting an analyses of the hydrolog-
ic systems pertinent to a project in place of the legal definitions
devised to protect vested rights. It would appear that there is
little actual difference between the various methods of Mncreasing
an available water supply through an increase In source or reduction
of sink in the hydrologic cycle. Probably the most important aspect
is the understanding of the hydrologic cycle and where a particular
measure may affect that cycle.
The courts have drawn distinctions between "developed" and
"salvaged" water to a large degree on the availability of facts
to insure the protection of vested rights. In one significant
case, Kulper vs. Lundvall, the Colorado Supreme Court has encouraged
further development of de minimis tributary ground water which
may ultimately injure vested rights at some time in the future.
In justifying that decision that court stated that "By the time
the rivers are affected by the pumping from this basin, we have
little doubt but what scientific progress will have solved many
of the problems caused by the failure of this water then to reach
the stream." Although the court seems somewhat misguided as to
the capabilities of the scientific community to "make it right",
a discernible intent to further the doctrine of maximum utilization
of water does appear. If the doctrine of maximum utilization of
water is to find equal footing with that of protecting vested rights,
then the facts, hopefully presented in terms of the overall hydrologic
cycle, must be presented in a clear and concise manner to allow
their inclusion into the inevitable legal definitions.
130 IRRIGATION AND DRAINAGE AND WATER RESOURCES
COLORADO REVISED STATUTES 1973, sec. 37-82-106
Fischer, W. H. Weather Modification and the Right of Capture.
8 Natural Resources Lawyer 639.
Glenn Dale Ranches, Inc. vs. Shaub. 494 P.2d 1029 (1972).
Kuiper vs. Lundvall. 529 P.2d 1328 (1975).
Meyers, J. Stuart. Evaporation from the Seventeen Western States.
U. S. Geological Survey Professional Paper 272-D, 1962.
Moses. Transmountain Diversions of Water in Colorado. Denver
Journal of International Law and Policy, Vol. 6, 1976.
Phreatophyte Eradication as a Source of Water Rights in Colorado.
43 University of Colorado Law Review 73 (1972).
Salt River Valley Users' Assoc. vs. Kovacovich. 411 P.2d
Sax, et. al. Journal of Applied Meteorology. Vol. 14, pg. 660.
Slutsky vs. City of New York. 97 N.Y.S. 2d 238 (1950).
Southeastern Colorado Water Conservancy District vs. Shelton
Farms, Inc. 529 P.2d 1321 (1974).
Southwest Weather Research, Inc. vs. Rounsaville. 320 S.W.2d
Tulare Irrigation District vs. Lindsay-Strathmore Irrigation
District. 45 P.2d 972 (1935).
INDIAN WATER RIGHTS: LAW AND REALITY
By: Sanford Smith1
In 1854 President Franklin Pierce asked the Spokan people to sell
some of their land in exchange for the creation of a reservation. Their
spokesman, Seattle, replied in part as follows:
How can you buy or sell the sky, the warmth of the land? The
idea is strange to us.
If we do not own the freshness of the air and the sparkle of the
water, how can you buy them?
This shining water that moves in the streams and rivers is not
just water but the blood of our ancestors. If we sell you land, you
must remember that it is sacred, and you must teach your children
that is is sacred, and that each ghostly reflection in the clear
water of the lakes tells of events and memories in the life of my
people. The water's murmur is the voice of my father's father.
The rivers are our brothers, they quench our thirst. The rivers
carry our canoes and feed our children. If we sell you our land, you
must remember and teach your children that the rivers are our
brothers and yours, and you must henceforth give the rivers the kind-
ness you would give any brother.
The last 125 years have seen isolation of Indian peoples on
reservations, usually on land considered undesirable for any other pur-
pose at the time of their creation. These reservations were created as
a result of treaties or executive agreements and have been frequently
dimished and sometimes enlarged by federal action since their initial
recognition. In 1886 Congress passed the Dawes Act, the objective of
which appeared to be the promotion of an agricultural living pattern
for Indian people with the sales of "excess" lands to finance agri-
cultural development. Considering that the land had been considered
marginal or unfit for agricultural use to begin with, hence the locating
of the reservation; that the Act was bound to and did indeed fail to
achieve its stated objective.
1. Attorney; Arcadia, California
132 IRRIGATION AND DRAINAGE AND WATER RESOURCES
In 1908 the Superior Court decided the Winters Case 207 U.S. 564,
28 S. Ct. 207 which stated that Indian water rights are based upon
future needs rather than on present uses. The treaty recognizing the
Fort Belknap Reservation had not contained any language concerning the
reservation of water rights as opposed to land rights, however, the
The Indians had command of the lands and the waters, command of
all their beneficial use, whether kept for hunting, and grazing
roving herds of stock, or turned to agriculture and the arts of civil-
In response to the argument that the admission of Montana to state-
hood terminated Indian reserved rights guaranteed by the Federal govern-
ment, the court indicated:
...it would be extreme to believe that within a year Congress des-
troyed the reservation and took from the Indians the consideration of
their grant, leaving them a barren waste, took from them the means
of continuing their old habits, yet did not leave them the power to
change to new ones.
The importance of this case as the legal basis for asserting the
right of reservation Indians to water cannot be denied. Regardless of
the ebb and flow in the conflict between federal and state power over
the allocation of water rights, the Winters case remains as the basic
law of entitlement for Indians peoples.
While it may be agreed by most reasonable people that Indian
people must be entitled to some amount of water, without which there
can be no life in the arid West, the paramount issues have become how
much and for what purpose.
The Winters case gave only the loosest definition of amount: that
which would make the reservation lands "adequate3and valuable" for their
inhabitants. Through numerous cases thereafter the issue of quantum
was debated but unresolved until the Special Master's Report in
Arizona vs. California (1963) 373 U.S. 546. Based upon the Courts'
language that the United States "intended to deal fairly with the
Indians by reserving for them the water without which their lands would
have been useless"4 the Court defined the Master's Report to indicate
2. Winters, p. 577.
S. hUited States vs. Ahtanum Trrigation niftrict 236 F.2d 321;
United States vs. Walker River Irrigation District (1939) 104 F.2d 334;
Conrad Investment Co. vs. United States (1908) 166 F. 829.
4. 373 U.S. 546, 600.
INDIAN WATER RIGHTS
that the amount was the lesser of one million acre-feet or the amount
"intended to satisfy the future as well as the present needs of the
Indian Reservations [and that] enough water was reserved to irrigate all
the practicably irrigable acreage in the reservations."5
This measure has become entrenched despite the fact that virtually
every word in the definition is ambiguous, and it presupposes only
agricultural use of the reservation lands. In later cases and debates
the one million acre-feet limitation also has been conveniently ignored.
Winters presupposed no particular use as the basis for entitle-
ment while Arizona vs. California based the measure on agriculture
alone. A quantum measure for municipal-industrial or mining use has
never been set. Nor is it at all clear whether the entitlement is
based on the technology and population of the reservation at the time it
was created, at the time a formal adjudication and allocation is made,
or is subject to indefinite variation as underlying variables change.
Lest one underestimate the extent of the changes in variables,
let us look at several situations in California. There are 78 reser-
vations in the state, of which only 4 have had their water rights
quantified and even those are subject to variation.6 At the time of
first European contact the California Indian population numbered about
200,000. At its low point, shortly after the recognition of most
California reservations/rancherios, the population was under 20,000.
It is currently in excess of 65,000, however, only about 10% of the
population actually lives on the reservations. The 78 reservations can
be divided roughly into thirds one-third with no water or water
system of any kind, one-third with no water delivery system but access
to wells, pumps, or streams, and one-third with some type of water
system. Not surprisingly the populations of reservations is higher as
the adequacy of the water resources and delivery system increases, how-
ever, this is in marked contrast with the situation that would exist
if all 65,000 California Indians did choose to live on their reser-
vations. It is quite apparent that lack of water is a factor that com-
pels significant numbers of Indian people to leave their reservations
and live elsewhere, where incidently they are consumers of domestic
water via the apportionments allocated to non-Indian water districts.
A second area of concern is the future of mining or extractive
industries and intensive agriculture on reservations. While the latter
issue has caused some attention especially in regard to the Navajo
Indian Irrigation Project, the former may be the more significant in
the long run. If the United States is to lessen its dependence on
foreign energy suppliers, it must increase domestic production, how-
ever, a large proportion of our potential energy resources are now
located on reservations. The North Slope oil comes from an Alaska
Native region and the coal from Four Corners is, of course, from the
5. 373 U.S. 546, 600.
6. Colorado River Res., Fort Mojave, Fort Yuma and Chemehuevi
IRRIGATION AND DRAINAGE AND WATER RESOURCES
Navajo and Hopi Reservations, however, the oil shale of Utah, coal in
Utah, Wyoming, and Montana, natural gas, oil and uranium all are pre-
sent in large quantities on reservations. Limiting Indian water rights
to 1870's technology or uses would effectively eliminate reservations
as sources of energy-related raw materials as virtually every extrac-
tive industry relies on intensive use of water.
Recent court decisions have stressed two areas with direct or
potential impact on Indian water rights-the extent of entitlement under
the doctrine of federal reserved rights and state versus federal power
in determining issues related to federal reserved rights.
The doctrine of federal reserved rights is court made and what
the Supreme Court giveth, it can and sometimes has taken away. The
Winters case is a prime example of a court-created doctrine and more
recently the "pupfish" case Cappaert vs. United States (1976)
96 S. Ct. 2062 stated that the reservation of a National Monument
reserves federal water rights in unappropriated water for the purposes
for which the Monument was reserved without recourse to a balancing
of interests test and without regard to whether the diversion is of
surface or groundwater.7
On July 3, 1978 the Supreme Court published its decision in
United States vs. State of New Mexico, 46 L.W. 5010 which indicated
that where there is an explicit federal reservation of water for a
Federal purpose the perpetuation of the Gila National Forest drained
by the Rio Mimbres, the Court would not broaden that reservation to
include uses not mentioned at the time of the reservation nor would it
interpret subsequent federal statutes, broadening federal reserved
rights, to relate back to the original reservation date or contemplated
uses for the purpose of determining appropriative priority or quantum
to be reserved. Attention was paid by the Court to Congressional
deference to state water law. The majority and dissenting opinions
differed on the issues of reservations for wildlife purposes and in-
stream flows. The majority vetoed any reserved right for wildlife
purposes and limited the instream flows to those necessary to secure
favorable flows for private and public uses under state law. Justice
Powell for the dissent characterized the decision as envisioning the
forests as "still, silent, lifeless places, and this has fueled a fear
among Indian people that it will likewise become the intent of the
federal and state governments to make Indian reservations similarly
"still, silent, lifeless places."
The issue of what courts have jurisdiction to make water
adjudications is of great concern. Normally, Indian water rights were
determined exclusively by Federal courts, however, in 1976 the
Supreme Court in Colorado River Water Conservation District vs. United
7. 96 S. Ct. 2062, 2072.
INDIAN WATER RIGHTS
States (often referred to an the Akin case)8 ruled as a result of the
amendment to the McCarren Act9 there was concurrent jurisdiction be-
tween federal and state courts on water rights matters. The subject
matter of the Akin case was "federal reserved rights held on behalf of
Indians" and the two cases on which the Supreme Court relied10 did
not involve reserved rights on Indian reservations. However, the
federal governments trusteeship of Indian rights was equated with owner-
ship11 an equation which Indian people vehemently deny and oppose re-
gardless of who asserts it. Indeed Forrest Gerard (Assistant
Secretary for Indian Affairs) on the first page of the National Indian
Water Policy Review paper states "The mandate to develop this paper
acknowledged the obligations of the federal government to protect
Indian water rights and that Indian water rights are not the same as
On the same day as the decision was made in the Rio Mimbres
case, the Supreme Court released its decision in State of California
et al vs. United States, 46 L.W. 4997 (1978) stating basically that a
state may impose any condition on "control, appropriation, use or
distribution of water" in a federal reclamation project that is not in-
consistent with clear congressional directives respecting the project.
This case involved construction of the New Melones Dam on the
Stanislaus River. The State of California attached 25 conditions to
the permits for the construction of the dam and impoundment of water.
This case is likewise seen by Indian people as a movement towards
state adjudication of Indian/federal water rights and as such is
viewed with alarm.
According to Indian people the rights of Indians derive from the
treaties which were entered into by the Indian nations and the federal
government and therefore these rights may only be altered by negoi-
ations between the original parties to these treaties. States are
bound to follow federal law in their dealings with Indian reservations
as the states have no direct relation to Indian reservations. (This
is true of the western states only as in the eastern states there are
state treaty reservations.) The federal government may not unilater-
ally disavow its responsibilities under the treaties nor may it dele-
gate those responsibilities to the states. On the other hand, however,
the exclusive relationship between the federal government and Indian
reservations does not mean that the federal government owns the
reservations nor may it act unilaterally on behalf of the reservations
in matters involving state relations. One of the realities that must
be faced by all parties is that there can be no satisfactory
resolution of issues involving Indian people without the direct and
meaningful participation of the affected Indian people and furthermore
8. 96 S. Ct. 1236, 424 U.S. 800, 47 L.E.D. 2d 483.
9. 43 U.S.C. 866.
10. United States vs. District Court for Eagle County, 401 U.S.
520 (1971); United States vs. District Court for Water Div. No.5,
401 U.S. 527 (1971).
11. Akin, at 1242.
136 IRRIGATION AND DRAINAGE AND WATER RESOURCES
the Bureau of Indian Affairs is for these purposes a division of the
federal government and not a representative of Indian peoples.
There is a further, practical problem with state adjudications
of Indian water-rights. Numerous reservations exist in two or more
states the most obvious case being Navajoland which is located in
Arizona, New Mexico and Utah. (Others include Duck Valley [Idaho-
Nevada], Standing Rock [North Dakota-South Dakota], Sisseton [North
Dakota-South Dakota], Colorado River [Arizona-California], Ft. Mohave
[California-Arizona-Nevada]) Several reservations cross international
boundaries and reservations often do not fall neatly within one water
basin. Piecemeal and inconsistent results will not promote lasting,
satisfactory allocations of water. It is likewise reasonable that a
Dakota (Sioux), who may live on a reservation in any of five states,
may move from one reservation to another without having to learn a
whole new set of water regulations. Such consistency is most rationally
achieved by negotiations between the tribes and the federal govern-
ment, however, with state governments a party to the decision-making
The decision-making process regarding Indian water rights has been
notable for one factor mentioned before the almost total lack of
participation by Indian people in the process. Non-Indian judges
have decided Indian rights, non-Indian legislators have made the laws,
non-Indian attorneys have argued both sides of the cases. The crown-
ing insult is that the result of this process is known as Indian
water law, it represents to non-Indians who don't know better what
Indian people supposedly want, and finally the federal government is
treated as if it, and not the Indian people, are the owners of the
The role of the Bureau of Indian Affairs is a matter of constant
concern. It is a division of the Department of the Interior, using
Interior's solicitors. Bath clearly face a continuing problem of con-
flict made all the more serious by the role of the federal government
as trustee for Indian people.
In the National Indian Water Policy Review paper one of the
recommendations was that "Methods should be examined for facilitating
negotiated settlements between the tribes and competing parties for the
use of water."12 In addition a recommendation for regional or basin-
wide legislation was made. No recommendation was made to achieve
quantification by litigation, and this was probably for three reasons:
it costs too much, it takes too long and it denies Indian people a
meaningful role in the decision-making process. The first and last
reasons are precisely why state governments and local, non-Indian
water districts have sought to prevent negotiations and insist solely
on judicial determinations of quantification.
12. Page 6
INDIAN WATER RIGHTS
In addition the interlocutory decree in United States vs.
Fallbrook Public Utilities a case involving the rights of various
Southern California bands to water from the Santa Margarita River has
shown how assinine to everyone a judicial determination can be. The
Indian people were awarded the rights to the water but are without the
use of a system for delivery. The City of Escondido has the delivery
system but no legal right to use the water.
A paradigm case of the role of Indian water rights was presented
by Monroe Price and Gary Weatherford in their article on the Navajo
Upper Colorado Basin quantification.13 The resolution of Navajo
quantification in the Upper Basin at 50,000 acre feet was achieved with-
out litigation and the amount, far from being inflated, appears to
be far below that to which Winters and Arizona vs. California should
have entitled them. (A preliminary estimate was consumptive use of
254,000 acre feet.) The reason for the agreement appears to be that
the Navajo Tribal Council was more interested in jobs and increased
revenue for the tribe than in legal theories. This view of a practical
pragmatic outlook is in sharp contrast to the dogmatic or idealistic
goals which are frequently ascribed to Indian people by critics.
There are a number of factors which need to be taken into account
to determine the amount of water to which Indian reservations should
be entitled. These include the steady population increase among
Indian people, highest among all ethnic groups in the United States.
There are vital national interest issues involved in the development
of reservations, most particularly the energy situation, however, the
public image to all the world of the United States as a symbol of
fairness requires strong efforts to eliminate the rural poverty that is
sharply exemplified by the conditions on most reservations. Only with
an adequate supply of water to reservations will some of the most
shameful aspects of income inequality be lessened in our country.
American Indian Journal, Vol. 4 No. 7, July, 1978, p.50
"Carter Proposes to Quantify Indian Water Rights"
Wassaja Vol. 5 No. 6, Sept, 1977
Vol. 6 No. 5, June, 1978
Akwesasne Notes Vol. 10 No. 2, Late Spring, 1978
Vol. 9 No. 4, Autumn, 1977
Qua' Toqti, Vol. 4 No. 70, December 15, 1977
13. "Indian Water Rights in Theory and Practice: Navajo Experience
in the Colorado River Basin", Law and Contemporary Problems, Winter,
1976, Duke University School of Law.