In recent news reports we have learned about the contamination of public water sources in West Virginia, and have been alerted to the potential impact of climate change on local water supplies. Who ultimately decides disputes involving the protection, access and consumption of state water resources?
Generally, state courts have jurisdiction over local water rights created by state law. State agencies with environmental and natural resources oversight further regulate water use and consumption policy in compliance with state law. Conflicts involving water on reserved Federal and Indian land are resolved by negotiation and compact with state, federal and tribal authorities.
Colorado and Montana have established Water Courts with exclusive jurisdiction over all water right claims within their respective states. While these Water Courts are fairly new judicial constructs (Colorado, 1969, and Montana, 1979), their creation shares a historical and geographical background.
During the time of western expansion, the scarcity of water limited settlers’ ability to inhabit and develop large tracts of dry, arid land. Conflicts over sharing and apportioning water resources required legal resolution, and a doctrine of “prior appropriation” evolved concurrent with the California gold rush. To process ore, miners had to divert water from streams and rivers. The doctrine of prior appropriation emerged, establishing a simple priority system based upon “first in time, first in right.” Essentially, the miners who had diverted water for beneficial use first had priority claim over others who diverted water later in time. This doctrine remains intact in most western states today.
The seniority system of prior appropriation is based upon physical control and beneficial use of the water source, regardless of actual adjacency of land to water. The person who can assert the claim of using a water source first acquires the right to continued beneficial use and consumption, while the subsequent users can only utilize remaining water. Additional elements of a prior appropriation claim include: the amount of water used, the point of diversion from the natural source, the place where water is ultimately used and any limitations placed upon the water source (e.g., wildlife or plant preservation free from pollution or contamination downstream).
Conversely, in the eastern states, the doctrine of “riparian rights” evolved, and still prevails. This doctrine originated from claims of landowners seeking shared, equitable use of waterways that touched or flowed onto their respective properties. Unlike prior appropriation rights, riparian rights are of equal priority. The water rights attach to an owner’s adjacent land, and cannot be sold or transferred separately. Water rights cannot be lost by non-use of the landowner. During times of water shortages, water is allocated to landowners proportionally.
These two doctrines continue to influence water rights governance, delineated by distinct geographic and historical precedent. Hybrid policies may emerge in courts where “priority in time” or “land with appurtenant water sources” claims are inadequate to resolve complex resource allocation issues across multiple jurisdictions.
Washington state is considering the establishment of an independent Water Court, following the lead of Colorado and Montana. The two state models may vary in structure, but they share a mutual mission of regulating the use and priority claims of local water resources.
In Colorado, the Water Court is a division of the District Court with exclusive powers and jurisdiction. As stated on the Water Court home page:
The Water Right Determination and Administration Act of 1969 created seven water divisions based upon the drainage patterns of various rivers in Colorado. Each water division is staffed with a division engineer, appointed by the state engineer; a water judge, appointed by the Supreme Court; a water referee, appointed by the water judge; and a water clerk, assigned by the district court.
Water judges are district judges appointed by the Supreme Court and have jurisdiction in the determination of water rights, the use and administration of water, and all other water matters within the jurisdiction of the ,water divisions.
To find Colorado Water Court Administrative Orders, Rulings, Court Rules, Forms, and other resources for all seven divisions on CourtReference, simply link here.
In Montana, the Water Court is a single court serving the entire state. As stated on the Montana Water Court home page:
The 1979 Legislature created the Montana Water Court to expedite and facilitate the statewide adjudication of over 219,000 state law-based water rights (generally rights with a pre-July 1973 priority date) and Indian and Federal reserved water rights claims. The Water Court has exclusive jurisdiction over the adjudication of water rights claims.
The Chief Justice of the Montana Supreme Court appoints a Chief Water Judge and Associate Water Judge from a list of nominees submitted by the Judicial Nomination Commission. A division water judge is also designated for each of Montana’s four major water divisions by a majority vote of a committee composed of the District Court Judge from each single-judge judicial district and the Chief District Judge from each multiple-judge judicial district, wholly or partly within each division. The Chief Water Judge appoints Special Masters, referred to as Water Masters, to assist the water judges.
The four major water districts represented are the Upper Missouri Division, the Lower Missouri Division, the Yellowstone Division, and the Clark Fork Division. You can find additional information about the Montana Water Court, including recent filings, cases, the Court calendar, Local Rules, forms, and resource materials on CourtReference, click here.
Whether your state resolves water resource disputes by a court of general jurisdiction or an environmental or natural resources agency, please check CourtReference for additional research resources, including contact information, case records, rules and forms.