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Water Law
Barbri Review
| Question | Answer |
|---|---|
| WY appropriation system | Rejection of riparian doctrine; State engineer head of it; Water of all natural, springs, and lakes within state are property of state; Gives better right; No appropriation denied except in public interest |
| WY Constitution establishes | Board of control, Water divisions, State engineer |
| Public rights to use water | Bed of navigable (can boat on it) waters passed to state on admission; Bed of non-navigable water remains vested in US until transferred into private ownership with land adjoining river |
| Public rights to use water- "Day" | Public can float on streams & make incidental uses (fishing/hunting); Persons floating can disembark & wade around shoals & obstructions; Cannot cross private lands to reach streams; Land owner cannot obstruct stream to interfere w/public right to use |
| Water subject to appropriation- WY Constitution | All streams, springs, lakes, other collections of surface water; Waste water and seepage which will reach natural stream subject to appropriation |
| How much water do you get? | 1 cfs (cubic feet/second) per 70 acres; Handy measurement: 1 cfs run for 24 hrs = 2 acres feet; |
| Nature of appropriation right | 1. Priority, 2. Beneficial use- a. Nature of use, b. Efficiency, 3. Diversion |
| Nature of appropriation right- Property right | Water right is a real property interest, can be sold separately from land |
| Nature of appropriation right- No limit on place of use | Water can be diverted to other drainage |
| Priority | First in right; No sharing in times of shortage |
| Priority- Relation back doctrine | Date of priority is date of application for water right |
| Diligence- Key concept for development of west | Date of priority is date of application; Appropriate must be completed within time frame on application (3 yrs ground, 5 yr surface) |
| Diligence- Key concept for development; Good cause extension of deadline | Pursue project with reasonable diligence; Spending money for studies, EIS, litigation, development of markets, may constitute good cause; Seek extension before permit expires |
| What is required to perfect an appropriation?- Beneficial use | Basis, measure and limit of right to use water; Appropriation not complete until beneficial use occurs; Nature (type): Domestic, municipal, industrial, etc.; Efficiency: Limited to amount reasonably required for purpose; Cannot WASTE water |
| What is required to perfect an appropriation?- Diversion | If in-stream flow right then held by state; Means of diversion protected if reasonably efficient |
| Administrative System | State engineer administers permit system; Board of control (5 engineers) adjudicates rights; Territorial rights adjudicated at turn of century (earliest rights); State engineer's office contains all water rights records |
| Obtaining Water Right | WY: Water right must be obtained to diver and use water; Apply to SEO, reviewed and granted or returned for additional info.; Permittee authorized to proceed, given certain time to complete |
| Obtaining Water Right- Rejection application | Application can be rejected- 1. No water available, 2. Conflict with existing rights, 3. On public interest grounds, rarely used; Applicant appeal to Board of Control, then to District Court, Supreme Court |
| Adjudication by Board of Control | Final step in finalizing water right; Project completed, water put to beneficial use; Inspection, advertisement, possible objections; May have public hearing; Certification of appropriation |
| Calls On the River | Senior water right calls the river; Futile call: Water must be legally and physically available; Misdemeanor to diver without permit; Obligation to maintain ditches |
| Water Transfers and Marketing | Transfers from agriculture to municipal or industrial |
| Water Transfers and Marketing- No injury rule | Junior appropriators entitled to conditions of stream as they found them |
| Water Transfers and Marketing- Selling water right | Water rights sold separately from land through water deed, can only be by transferred under change of use law; Exception: Condemnation (changed to preferred use), Storage, Lands submerged |
| Change In Use or Place of Use | Petition to State board, 5 years of water use; Need good diversion records, hydrologist, crop consumptive use expert; Only transfer amt historically consumed consider conveyance losses); Transfer up or down river if exchange worked out |
| Change of Use | Cannot- 1. Exceed amt historically diverted, 2. Divert higher rate, 3. Consume more than historically consumed, 4. Decrease return flows, change place of returns or "cause injury"; Must be put to beneficial use before change allowed |
| Change of Use- Other factors | Economic loss to community and State of discontinued use; Extent economic loss offset by new use; Other sources available |
| Other Changes in Water Rights | Change in point of diversion; Change in location of well; Temporary changes (common, approved for up to 2 yrs); Transfer of reservoir right (secondary permit); Exchanges of water rights |
| Other Recent Changes | Recent temporary transfers- North Platte |
| Recapture and Reuse | Can recapture and reuse on original land; To use waste water on other lands must get permit; Appropriator of seepage of water cannot demand continued seepage |
| Rights to Imported Water | Importer of water from another watershed may reuse water, make successive uses or dispose of it without regard to junior appropriators; Rights not lost by abandonment; SEO and Board have no control over change to imported water |
| What is the Property Interest? | State= right to control terms & place of use; Direct flow water right attached to land for which appropriated, may detach by water deed; Water right for irrigation appurtenant to land (conveyance of land conveys water right, but be careful w/condemnatio |
| Recapture and Reuse- "Franks" | North irregators had runoff (waste water) that made it to south property owner; South property owner filed for permit to appropriate waste water; S. Ct. held recapturing water from own land you can continue to put it back on to land, but permit for othe |
| Groundwater | Basic rules like surface water; Wells must have permits; Control areas established where groundwater use is high |
| Groundwater- What? | Very broad, any water than ca be extracted from ground; Hot water and geothermal steam; Spring yielding less than 25 gpm, used for domestic or stock |
| What is the Property Interest?- Conveyance of land and water rights; "Rennard" | Water right conveys with property unless water deed states something different; Lower water right owner can go onto land to clean ditch as long as reasonable |
| Groundwater- What?; By-product water | Groundwater permit if diverted before mixed with surface water |
| Groundwater- Permits | File application; If not critical area granted as matter of course if means of diversion and construction adequate; May deny if not in public's interest; Must complete construction diligently; Adjudicate well after put to beneficial use |
| Control Areas | Established around State to protect irrigation pumpage (conflicts b/w groundwater users); State engineer broad power to control pumping/limit new wells/, set maximum pump amts, unadjudicated wells adjudicated (permits no issue as matter of course) |
| Control Areas- Board | Control area board set up to consider new uses/wells |
| Selected Groundwater Issues- Priority for domestic and stock wells 25 gpm or less | Statute= Automatic priority for domestic and stock wells that pump 25 gpm or less; Take priority over other ground priority |
| Selected Groundwater Issues- Interference with other wells | SEO investigate complain to interference; No right to certain level of water; Pay= unclear, if it is person asserting right or person taking all water (industrial may just redrill or sink well lower) |
| Selected Groundwater Issues- Groundwater mining (nothing recharging well, depleting aquifer) | No statute in WY; Other states- 1. Prohibit, or 2. Regulate |
| Selected Groundwater Issues- Integration of ground and surface water rights | Correlation of priorities |
| Storage rights | Must get permit to construct reservoir; Not attached to any particular lands, may be leased, sold, transferred; Not subject to change of use procedure; Can get secondary permit to link stored water to land |
| Storage rights- One fill rule | Reservoirs can be filled once each water year- Oct. 1 through Sept. 30; Reservoirs must store as soon as water available |
| Reserved rights | Federal and Indian reserved rights; Reservation for amt reasonably necessary to meet the purpose of reservation; Big Horn I, II, III, IV |
| Abandonment (good bar question) | Fail to use water 5 successive years when water available; Intent to abandon no defense; Must petition board; Beneficial use prior to petition preserves right (State engineer can bring); Standing jurisdiction requirement |
| Abandonment- Supplemental rights | Permit from state engineers office to get water from another source to accomplish 1 cfs/70 acres May be abandoned; Ct made policy |
| Abandonment- Requirements to bring Action | Water user who might be benefited, or injured by reactivation; Must be tangible as opposed to theoretical interest; Improvement of priority is not benefit, too speculative and uncertain |
| Abandonment- Standing; Possession | Must possess valid adjudicative water right or permit of EQUAL OR JUNIOR STATUS to water right sought to be abandoned |
| Abandonment- Standing; Reliance | Water right relied on by petitioner and water right sought to be abandoned must be from same source of supply |
| Abandonment- Standing; Not same stream system | Does not mean same stream system that contributed to petitioner's water supply |
| Abandonment- Standards | Groundwater rights can be abandoned, but proof standards are high; Improvement in priority not sufficient to prove benefit or injury |
| Abandonment- Defenses | Lack of water (no choice) excuse abandonment (must prove by expert testimony/records); File abandonment action before water put back to beneficial use (even after 5 yr period); Non-use NOT voluntary, b/c of circumstances beyond non-users control ("Scott |
| Abandonment- Recent cases; "Snider" | Board of control granted abandonment; S. Ct. reversed holding petitioners lacked standing; Petitioners failed to show water right would be benefited by abandonment, or injured by renewed use of right |
| Interstate allocation- Equitable apportionment | U.S. S. Ct. has original jurisdiction (North Platte litigation); Each state entitled to equitable shares of benefits of stream |
| Interstate allocation- Allocation by compact | WY party to compacts on almost all major drainage; Compacts approved by Congress |
| Interstate allocation- Congressional allocation; "Arizona v. California" | U.S. S. Ct. needs congressional power to allocate interstate bodies like lower Colorado river |
| Abandonment- Defenses; "Scott" | S unable to get water so went to M's property to see why; M changing use on land says will not affect forever, BUT does; M files for abandonment of S right; S. Ct. cannot commit bad acts by preventing water from reaching land and then file for abandonm |
| Water Law Bar Questions Focus | Abaondonment- 1. Standing, 2. Generally do not like to uphold actions' "Rennard" question; Change of use statutes in determining if change of use should occur; No injury rule; Big, broad concepts |
Created by:
dmoore147
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