Like all other types of resources, water has been regulated for thousands of years, and the prior appropriation doctrine is one method of regulating water rights in the United States.
It’s particularly relevant in the western United States, and it grants water rights to a person based on a “first in time, first in right” fashion.
Read below to learn more about prior appropriation water rights, how they’re used, and how they may impact you if you live in certain states.
1. What is a water right?
Water rights are part of water law and constitute a legal entitlement authorizing water to be diverted from a specified source and put to beneficial and unwasteful use.
2. What are prior appropriation water rights?
Prior appropriation water rights are defined as “the legal doctrine that the first person to take a quantity of water from either a surface water or ground water source for ‘beneficial use’ (agricultural, industrial, or household) has the right to continue to use that quantity of water for that purpose.”
Any users thereafter can take the remaining water for their own beneficial use if they do not infringe on the rights of the previous owner.
This doctrine was developed in the western U.S. and differs from the riparian doctrine, which are primarily used in the eastern U.S.
Because water is typically scarce in the West, the doctrine states that the right is allocated based on those who are “first in time of use.”
3. What is the history of prior appropriation?
The prior appropriation model of water rights originates in the western United States and the needs of miners during the California Gold Rush.
During this time, miners panned in the streams and rivers and diverted water to mines located away from the watercourse.
At the time this occurred, few legal institutions existed to govern these operations.
Miners needed protection for their rights to the water and so a system was developed that was similar to the state laws governing mineral rights.
The law was “first in time, first in right,” and it worked well in the West because it was a means of allocating a scarce resource.
The first and most senior individual to claim interest in the water was able to have their needs met prior to the next in line.
Then, the person after them would be able to claim their water (and so on and so forth until the water was exhausted).
The right to the water was also defined by the ability to divert the water away from the stream to where it was needed.
4. What’s some prior appropriation terminology to know?
Here are some useful terms to know when discussing prior appropriation of water rights.
Appropriate: To have a perfected interest in the use of water
Senior appropriators: The users with the earliest in time perfected right to the use of water for a beneficial use
Junior appropriators: Users of water who have appropriated later in time than senior appropriators
Beneficial use: The use of water for a beneficial purpose that is determined by the state
5. How did people claim water rights?
An appropriative water right was typically recognized by posting a Notice of Intent or by diverting the water for beneficial use.
The date of priority related back to the first action taken to initiate the right.
The scope of the water right was defined by the intended purpose and place of use at the time of initiation.
If it was being developed with the proper process, the right existed.
Whatever quantity was needed to achieve the purpose(s) intended at the time of initiation was the quantity that could be used.
6. What are the four essential elements of the prior appropriation doctrine?
The four essential elements of the prior appropriation doctrine include intent, diversion, beneficial use, and priority.
Intent
If your state has a prior appropriation doctrine, then the acquisition of water requires that the appropriator demonstrates the INTENT to do all of the following.
- Appropriate the water
- Divert the water
- Apply it to beneficial use
In the past, intent was indicated by an on-the-ground act.
This may include site surveys, land clearing, preparation of diversion points, and most importantly, posting of notice.
Today, intent is generally indicated by the application for a permit.
Diversion
In the past, physical diversion of water was often required to acquire water rights.
However, this requirement was diminished as states have implemented various instream flow programs.
That said, a point of diversion is still an essential element of a consumptive use water right.
Beneficial use
This is perhaps the most important characteristic in defining a prior appropriation water right.
Beneficial use is used to determine whether a certain use of water will be recognized and protected by law against later appropriations.
The justification for “beneficial use” is to prevent waste.
Water is a scarce resource in the western U.S., and states often determine what uses are acceptable for water.
Not all “uses” are automatically considered beneficial.
Some examples of beneficial uses of water include:
- Irrigation use
- Industrial use
- Livestock use
- Drinking water use
- Domestic use
- Recreation use
- Fish and wildlife use
Priority
Priority is the final essential feature of the prior appropriation doctrine.
The first appropriator on a water source has the right to use all the water in the system necessary to fulfill his water right.
Any “junior” appropriator thereafter cannot use water to satisfy his water right if it will injure the senior appropriator.
The senior appropriator may “place a call” on the river, which requires that the institution that manages the water source shut down a junior diverter in order to satisfy the senior water right when there are times of shortage.
With that, a senior appropriator may not change any component of the water right if it will injure a junior appropriator.
If the senior appropriator desires to change his place of use and this will impact the junior’s impact, then the junior can stop the senior from changing his use.
Changes in water rights include the time of use, place of use, the purpose of use, point of diversion, etc., and they cannot cause harm to another water user (regardless of priority).
7. What three major requirements can inhibit the transfer of an appropriative water right?
While there are few restrictions on who can hold an appropriative water right in western states, there are some requirements that you should be aware of.
While an appropriate right does not depend on land ownership, some states do require that the water is appurtenant to the land on which it is used.
Furthermore, appropriate water rights are transferrable property, but the following can inhibit the transfer of an appropriate water right.
- Rules prohibiting the severance of water rights from the land on which the water is appurtenant to
- Showing that there will be an injury to other appropriators
- Establishing the extent of the water right for transfer
8. What does the permit process for prior appropriation water rights look like?
As noted above, today’s process of showing intent for prior appropriation water rights is to apply for a permit.
These permits carefully indicate the amount of water, conditions, and construction timetables for the proposed water project.
Here’s what the permit process includes.
Filing an application: Begin the process by filing an application for a permit.
This should be done by the person or agency desiring to divert water.
The application should describe the proposed project’s source, place of use, purpose, point(s) of diversion, and quantity to be diverted.
Accepting the application: The State Board’s Division of Water Rights maintains the records of water appropriation.
They are the body that you apply to, and as such, they spend time reviewing the information submitted.
Within 30 days of application, the Board will typically notify the applicant if their application is accepted or if it is incomplete.
Acceptance establishes priority as the date of filing.
Reviewing the environmental impact: Some states (such as California) consider environmental effects as part of the application.
Notifying the public: The State Board publishes a notice of the applicant’s intent and invites comment from the public.
If there is any protest, copies are forward to the applicant who is invited to respond directly.
Resolving protest: The Board will work to resolve any protests that have been filed by the public.
If the parties can mutually agree on acceptable conditions, then the protest is resolved at this point in the process.
If the two parties are unable to resolve the protest, then it may be solved through an engineering field investigation report from the Board’s Division of Water Rights.
For appeals from the report and for large projects, a formal hearing is held before one or more members of the State Board.
The Board will then come to a formal decision.
Issuing the permit: Before a permit can be issued, two initial Board findings are required.
The first is that unappropriated water is available to supply the applicant.
The second is that the applicant’s appropriation is in the public interest.
The latter is a concept that is an overriding concern in all Board decisions.
The Board will issue the permit if it determines that the proposed use of the water meets these criteria.
If it determines otherwise, conditions may be imposed to ensure they are satisfied, or the application may be denied.
In most cases, applicants are required to begin construction within two years of the permit being issued.
9. Is water the only good that prior appropriation theory can be applied to?
No, the “first in time, first in right” theory has been used in the U.S. to encourage and give a legal framework for other commercial activities as well.
Early prospectors and miners in the California Gold Rush of 1849 used prior appropriation for mineral deposits.
Additionally, the Homestead Act of 1862 granted legal title to the first farmer to put public land into agricultural production.
It’s thought that the “first in time” right to agricultural land may have been influenced by appropriation theory applied to mineral lands.
In more recent years, there has been some talk of limiting air pollution by granting rights to existing pollution sources.
10. Which states use prior appropriation water rights?
As noted above, many states have adopted a prior appropriation doctrine for groundwater.
These states include Alaska, Arizona, Colorado, Idaho, Kansas, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.
Final thoughts
Western states most commonly use the prior appropriation system because it was a way to encourage development in arid states where most land is distant from water resources.
If you’re looking to own land in any of the states listed above, be sure to do your research so you can understand how to apply for water rights in your area.
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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.
Prior to starting Gokce Capital, Erika received a Bachelor of Architecture from the University of Southern California and a graduate degree in Urban Policy from Columbia University. She worked as both an architectural designer and engineer in New York before joining the New York City Department of Housing Preservation and Development.
Erika currently lives in the New York Metropolitan area with her spouse, daughter and cat. She is originally from Chicago and still considers herself a midwesterner at heart.
Erika also loves to read, write and travel (fun fact, she has visited all 50 states and more than 30 countries!). Her new book, Land Investing Mistakes: 11 True Stories You Need To Know Before Buying Land, is now available on Amazon.