Karen L. Henderson , Porzak Browning & Bushong LLP NATIONAL MITIGATION & Western Water Law ECOSYSTEM BANKING CONFERENCE Wetland Mitigation and Water Rights May 7, 2014
Riparian vs. Prior Appropriation ❖ There are two major doctrines that influence water law in the United States - riparian and prior appropriation. ❖ Under a riparian system, landowners have the right to make reasonable use of the water that flows across, originates on, or adjoins their property. ❖ Under a prior appropriation system, the use of water is administered under a priority system often described as "first in time, first in right."
100 th Meridian The 100th Meridian has traditionally been considered the dividing line between the wetter eastern half and the drier western half of the United States.
“Battles over water in the West are always about something more. At their most elemental, they are about survival.” –Bettina Boxall
Prior Appropriation Doctrine ❖ The prior appropriation doctrine is a priority system that allocates water in times of shortage. ❖ Senior rights are fully satisfied before junior rights. 1978 Priority 1886 Priority 1954 Priority 1902 Priority 1912 Priority
Water Law is State Law The states have the primary authority and responsibility for the allocation and management of ❖ water resources within their boundaries. While each state has adopted principles of the prior appropriation doctrine as a foundation, the ❖ specific laws controlling the allocation and administration of water is a matter of state law. While there are some consistent themes, water law is different in each state. ❖ Prior Appropriation Prior Appropriation Hybrid with remnants of riparian law Riparian and Prior Appropriation Arizona Oregon California Colorado Washington Idaho Nevada New Mexico Montana Utah Wyoming
What is a water right? A water right is a right to use water. ❖ The defining elements of a water right typically include: ❖ a priority date ❖ an amount (defined by flow rate (cfs) or by volume (acre-feet)) ❖ type of use ❖ point of diversion ❖ place of use ❖ source of water ❖ Most states require that the water be removed from the natural source by way of diversion or ❖ other control, but the exact requirements vary from state to state and have evolved to address instream flow and recreation rights. Stages of a water right: ❖ Conditional decree Absolute decree Permit Certificate/License
Why do I need a water right? As a general rule, a water right is required in order to use surface or groundwater. ❖ There are exceptions to this general rule, particularly related to the use of ❖ groundwater. As examples: ❖ In California, the use of groundwater does not require a permit from the State Water ❖ Resources Control Board, but local groundwater districts may require certain approvals or fees for the use. In other states where groundwater is regulated, certain types of groundwater use can ❖ be considered an exempt use. A water right provides the legal right to use water and protects the use against injury ❖ from more junior uses or changes of existing water rights. A water right helps ensure the long-term success of a mitigation project. ❖
How do I get a water right? Website links State Responsible Entity Approval Process for additional information Arizona Department of Water Resources Permit then Certificate of Water Right http://www.azwater.gov/azdwr/ http://www.waterboards.ca.gov/waterrights/bo California State Water Resources Control Board Permit then License ard_info/water_rights_process.shtml http://www.courts.state.co.us/Courts/Water/In Colorado Water Court Water Court Decree dex.cfm Idaho Department of Water Resources Permit then License https://www.idwr.idaho.gov/ Nevada State Engineer Permit then Certificate of Appropriation http://water.nv.gov/waterrights/index.cfm http://www.ose.state.nm.us/water_info_water_ New Mexico State Engineer Permit rights.html Department of Natural Resources and Montana Permit http://dnrc.mt.gov/wrd/water_rts/default.asp Conservation Oregon Water Resources Department Permit then Certificate http://www.oregon.gov/owrd/Pages/index.aspx Utah State Engineer Permit then Certificate of Appropriation http://www.waterrights.utah.gov/ http://www.ecy.wa.gov/programs/wr/rights/wa Washington Department of Ecology Permit then Certificate of Water Right ter-right-home.html State Board of Control, Permit then Certificate of Appropriation http://seo.wyo.gov/agency-divisions/board-of- Wyoming includes the State Engineer control
What if there are existing water rights? A water rights due diligence investigation may be needed to determine whether the ❖ rights can be used to support the mitigation bank or whether a change of the right would be required. This process may include: ❖ • Researching and reviewing deeds, decrees, permits, certificates, and agreements • Analysis of the historical availability and use of the water right • Interviewing the water owner/user Water rights can generally be changed if there is no injury to other water rights. ❖ Whether a change is needed depends on the facts and state law, but consider: ❖ • Type of Use: Will there be a change in the type/category of beneficial use? • Place of Use: Is the mitigation bank located on the historically irrigated land? • Season of Use: Will the water be diverted during irrigation season or year-round? • Method of Use: Will the water be used directly for crop irrigation or will it be impounded? • Point of Diversion: Will the water right be diverted at the decreed point of diversion? • Source: Will it use surface water or will groundwater be exposed as part of wetland construction?
How do I secure water rights to a bank? As a general rule, water rights are considered separate property rights that can be leased and ❖ conveyed separately from the land. The nature of an interest in water may be: ❖ real property - ownership of the water right itself ❖ personal property - ownership of a contractual right to use a water right owned by another ❖ both real and personal property - such as shares of stock in a ditch or reservoir company ❖ Some of the states with a two-step administrative permit system (i.e. permit then a final ❖ certificate) treat the initial permit as personal property and the final certificate as real property. Mechanisms such as a deed restriction or conservation easement can be used to secure the ❖ water rights to the mitigation bank property. A conservation easement is a legally enforceable agreement between a property owner ❖ and an easement holder ( i.e . a land trust or public agency) that permanently protects conservation values by restricting future development and other harmful activities. Water rights are material to maintaining conservation values such as wetlands. ❖
“Irrigation of the land with seawater desalinated by fusion power is ancient. It’s called rain.” –Michael McClary
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