Water Well Journal
Issue link: http://read.dmtmag.com/i/543740
evaluating perfected water rights, it is important to obtain and review historical evidence of continuous use—which might include photos, electrical and maintenance records, crop reports, and affidavits. One more caution before turning to the elements of a water right. Water rights can be and commonly are subject to condi- tions not discussed here. For that reason—whether the right is evidenced by a permit, claim, notice, deed, decree, certificate, or other instrument—always review it carefully to avoid any surprises down the road. Seniority Matters The western system of prior appropriation is built around the principle that "first in time is first in right." The element of a water right that reflects this principle is the priority date. The owner of a water right with the earliest priority date is called senior and is entitled to receive a full measure of their right before the next junior right may divert any water. When water is short, junior appropriators may be curtailed to ensure senior rights are satisfied. Referring back to the earlier discussion, priority is a cir- cumstance where water physically available may not be legally available. As a rule, earlier priority dates have more worth. There are, however, nuances. For example, a stream carrying natural flow subject to pri- ority of existing rights may also be used to convey stored water released from an impoundment with a priority date jun- ior to the natural or direct stream rights. However, because the rights originate from different sources, it is possible for the holder of a "senior" flow right to be curtailed while "junior" stored rights are being delivered. Rate and Duty The two elements describing the magnitude of a water right are commonly expressed as rate and duty (with duty being another word for volume). Rate is usually expressed in gallons per minute, cubic feet per second (cfs), or miner's inches. Note that there are at least three separate conventions for converting miner's inches to cfs. Duty is often expressed in acre-feet, with one acre-foot equaling 325,853 gallons or the amount of water needed to fill one acre to the depth of 1 foot. A working knowledge of rate and duty is critical for evalu- ating water rights. This is because a rate and duty printed on a water right instrument establishes a maximum but does not define the actual magnitude of a water right, which can only be established by actual beneficial use. To illustrate, assume the printed water right allows 3 feet of irrigation water to be applied to 100 acres (300 acre-feet) be- tween April 15 and October 15. If the well pump is only capa- ble of delivering 250 acre-feet during that period, the rate and duty may properly be reduced. Another important related issue has to do with the con- sumptive use of water. Suppose the crop grown on the hypo- thetical 100 acres was only capable of consuming 200 acre-feet. In that case, even if the farmer ran the pump to its capacity and applied 250 acre-feet, many jurisdictions would not allow the non-consumptive fraction to be conveyed and the amount of water available to the purchaser would be limited by the duty of water consumed. The area of water rights and the administrative process governing the transfer and changes to those water rights can be a minefield. Figure out early if your project or your client's project requires a water right at the front end. Then seek assis- tance to avoid costly surprises. WWJ Peter G. Scott is a partner with the law firm of Gough Shanahan John- son & Waterman PLLP. He is licensed in Montana, Idaho, Oregon, and Washington and serves as regulatory, litigation, and general counsel for private, corporate, nonprofit, and governmental entities throughout the Columbia River Basin. Prior to attending law school, Scott worked as a hydrogeologist and served in the U.S. Navy. Get Detail on Domestic Water Well Exemption in the West Exempt wells typically withdraw small amounts of groundwa- ter primarily for domestic use with withdrawals also allowed for livestock watering and other limited purposes. Exempt wells gen- erally are not subject to adjudication, monitoring, or water use re- porting requirements. Learn even more detail on domestic water well exemptions in the western United States with an Information Brief published by the National Ground Water Association. Go to www.ngwa.org/Media-Center/briefs/Pages/default.aspx to view or download the brief for free. WWJ August 2015 47 Twitter @WaterWellJournl