Water Rights

Water rights - or lack thereof - are going to be a huge issue for the remainder of this century because of drought and population growth. In the western United States, rights to "public water" which includes rivers, streams and springs are based on the Spanish legal concept of "first in time, first in right."

The "first in time, first in right" law basically means that if previous owners of your land had established continuous irrigation, domestic or stockwatering rights on the land that you bought, the older those rights are, the better. For instance, your land may have been a part of a homestead that was established in the 1860s and the original homesteader had constructed an irrigation ditch that diverted water from a local stream to the property in order to irrigate 200 acres of land. Let's say that your homesteader built his ditch in 1868. The next settler built a ditch to divert water from the same stream in 1872. The 1872 water use would be second to -- or inferior to -- your 1868 right.

Using our example, you have what is known as a "senior" claim to the stream, meaning that your rights are older and superior to everyone else's rights. Let's say that the stream normally produces 1000 cubic feet per second (CFS) of water during the irrigation season and you have a proveable claim of 800 CFS. Adding to our example, if there is a drought and the stream produces only 700 CFS, you have the right to divert 100% of the stream's water to satisfy your claim before anyone else has the right to do so. This might not seem fair to the layperson, but under the "first in time, first in right" concept, available water is not allocated amongst the users. Instead, the entire first right -- or senior claim -- is served first, followed by the second claim, the third claim and so forth. In our example, even if the second right holder had a valuable wheat farm that required at least 500 CFS to survive, if only 700 CFS of water was in the stream and you had first claim to the full 700 CFS, then the second right holder's farm would dry up. He has no right to your first claim unless you negotiate a temporary agreement that has legal standing under the law.

To claim a senior right, you need to prove it. You need to show that the water was always used since the date of your claim (in our example, this would be 1868). You need to show that you or your predecessors have always used the volume of water claimed (or as much of that amount as possible during drought years). You'd have to prove that the exact same fields were continually irrigated since 1868 and that you or your predecessors never abandoned the claim. Current environmental views would dictate that you or your predecessors would need to not waste water, should rotate the fields and so forth. However, there is case law that shows that water conservation and land rotation is not a legal requirement to establish a "first" or "senior" right. As a matter of fact, conserving water and using less than your claim could harm you in terms of establishing a water right claim. You just need to prove that water was always used in the amount and manner claimed.

Much of your proof can be established with old homestead records, patents, notices of water right filed with the county, photographs, old timer affidavits, old maps and contemporary water right forms filed wtih your state's appropriate administrative agency. In Arizona, for example, the administrative agency is the Department of Water Resources. There are forms for pre-statehood claims and "adjudication" claims to be filed in the statewide water rights litigation. These forms need to be backed up with proof, such as the patents, notices, maps and other materials.

The "first in time, first in right" example above is general. All of the states have different laws governing historic water rights and these laws and administrative procedures are evolving to some extent.

Water right claims can be complicated and, in times of shortage, the fodder for expensive and lengthy lawsuits. An element of pubilc water that has recently become the focus of many water right holders is "subflow." In simplistic terms, subflow is river water that flows underneath the earth. It's water that you cannot see but is hydrologically connected to the river.

A groundwater well near a river may actually be pumping the river's subflow and not groundwater. An elderly couple who lives in Arizona's Verde Valley (near Sedona) has been battling a major utility company in the past few years because the utility, which has senior rights to the Verde River, claims that the groundwater wells serving the couple's small farm are actually pumping subflow. The couple has been accused of stealing water from the utility company because they are allegedly taking from the company's senior claim to the Verde River.

Another issue that plays an important role in the determination of rights to public water is Native American water rights and federal reserved water rights. Many states have negotiated and continue to negotiate complex water right settlements with Indian tribes.

If you are buying property or own property with a right to a public water source, make sure that you have all of your paperwork in order. Most administrative forms will require that you provide information on the volume and/or flow of water that you are claiming. I've created some handy online calculators (free, of course) that you can use for typical water volume and flow calculations. It's critical that you work with a qualified water lawyer when claiming water. The law is much more complicated than summarized in this short hub article, and you need to know what you are up against.

Water is life. Unlike oil, we need it it to live. If drought and the effects of population growth continue, water will likely become a more valuable resource than oil. Protect what your rights now before it's too late.