Water Law Flashcards
Diversion
The act of taking or “diverting” water from a watercourse in order to put it to use.
Watercourse
A definite channel with a bed and banks or sides, in which water flows at least periodically.
Surface Water
Water that accumulates above ground and flows in a watercourse.
Watershed
An area of land that drains downslope to the lowest point. Water travels through pathways, both above and under ground, eventually reaching an estuary and ocean.
Elements of Appropriative Rights (Under Common Law)
- Intent
- Notice (Actual or Constructive)
- Diversion
- Application to a Beneficial Use
Appropriative rights are first in time, first in right. Holders of senior water rights have priority over all subsequently acquired rights.
Perfection of an Appropriative Right
complete all steps necessary under the common law or permit system and then: actual application of full amount of water to a beneficial use.
Abandonment
Water right will be presumed abandoned by non-use for the statutory period of time and there appears to be an intent to abandon. To rebut the presumption, user can show a good faith reason for the non-use (such as financial) and demonstrates no intent to abandon.
Riparian Water Rights
- Riparian rights attach to land that abuts a natural watercourse when such land originated under a patent from the government.
- Part and Parcel of the land
- Correlative rights - users must share and share alike in times of shortage
- rights are severed when the portion no longer abutting the watercourse is subdivided and conveyed, unless expressly preserved in the conveyance instrument (or other evidence of intent to preserve at time of severance)
- upstream users must exercise their right in such a way that it causes the least amount of injury to downstream users.
No Harm Rule
change or transfer of water rights must not harm other legal users.
Ways in which water use can be changed
Purpose of use amount of diversion season of diversion source body of water point of diversion place of use
English rule of groundwater (also known as rule of capture, or absolute ownership rule)
allows a person who owns the surface land to use as much water as he wants, for whatever purpose, even if it causes harm to his or her neighbor. Exceptions:
- An overlying user is not permitted to commit waste; and
- he or she cannot act with malice
Waste
Not beneficial or not reasonable
Statutory appropriative water rights
The would-be appropriator must: File an application with the SWB detailing: 1. intended point of diversion 2. place of use 3. purpose of use 4. season of diversion 5. quantity of water to be diverted
Priority is date application submitted
permit issued which permits diversion. once all water is put to its full beneficial use, issued a license and has a vested statutory water right.
Quantity cannot be increased; this is a new water right.
Correlative Ground Water Rights
- Quantity to which an overlying user is entitled is to that which can be reasonably, beneficially used on his or her own land.
- Appropriations are permitted as to surplus. Competing appropriators will be limited by fair and proportional allocation among them.
- CA presumption = groundwater is percolation and not underground stream.
Prescription
- Actual
- Open and Notorious
- Hostile against rightful owner
- Continuous possession
- For statutory period (5 years)
