Summary. Eleven sequences from identifying the doctrine through adjudication and construction permitting.

1. Which system are you in

  • Appropriation, riparian, or hybrid state?
  • Which agency administers water rights, and where is the local field office?
  • Is there a watermaster and a decree on this stream?
  • How is groundwater treated, and is it managed conjunctively with surface water?
  • Is a general adjudication pending on this system?
  • Make three calls: the field office · the watermaster · the ditch company or district.
  • Ask the operative question: how many days in a typical year is this right in priority?

2. Diligence before buying land with water

  • Obtain the permit, certificate, decree, or license — not the listing description.
  • Record for each right: priority date · source · quantity (rate and volume) · point of diversion · place of use and acreage · purpose · season · conditions.
  • Search the water agency's records by seller name and parcel — not just the county recorder.
  • Confirm no forfeiture — obtain evidence of use for recent years.
  • Confirm no pending change or transfer application.
  • Confirm no pending adjudication, and whether a statement of claim was filed.
  • Determine whether the right is appurtenant or must be separately conveyed in this state.
  • Ask the watermaster how often the right was in priority in each of the last ten years.
  • Purchase agreement: representation · condition precedent · express conveyance in the deed and any separate assignment.
  • Read the title policy's water rights exception — it is standard, and it may matter more than anything else in the policy.
  • If water is delivered through a district or ditch company: confirm shares convey, assessments are current, and the transfer complies with the bylaws.

3. Creating a new right

  • Confirm new appropriations are available — check for over-appropriation, moratoria, and closed management areas.
  • File early; the filing date usually fixes the priority date.
  • Publish and serve notice as required; expect protests.
  • Address the criteria: unappropriated water available · no injury · beneficial use · public interest where applicable.
  • Calendar the permit's construction commencement and completion deadlines; request extensions on time.
  • Construct the works; apply water to beneficial use.
  • File proof of beneficial use and obtain the certificate. (Many rights are lost here.)
  • For wells: well permit · licensed driller · well log filed · spacing requirements · mitigation or augmentation obligation in a management area.

4. Documenting use every year

  • Diversion records — meter readings, headgate measurements, delivery records.
  • Dated photographs from the same locations: diversion, ditch, irrigated ground.
  • Crop and acreage records; crop insurance and farm program filings.
  • Aerial imagery by year (free from federal sources).
  • Receipts: assessments, pumping power, repairs.
  • A one-page annual memorandum of what was diverted, when, for what, on how many acres.
  • File any required state reports.
  • Know the forfeiture period and the statutory excuses; document any excuse contemporaneously.
  • Before improving efficiency or fallowing, check the state's conserved water protection.

5. Transferring or changing a right

  • Quantify historical consumptive use — records, acreage by year from imagery, crops, climate data, engineering analysis. Not the decreed rate.
  • Agree the representative period with the agency early if possible.
  • Analyze injury: change in timing, location, and return flows; conversion of partially to fully consumptive use.
  • Design mitigation: reduced quantity · replacement water by month · retained fallowing · dry-year rather than permanent transfer · subordination.
  • Check area-of-origin and public interest review.
  • Check the district or ditch company rules, which may be more restrictive than state law.
  • File; expect protests; plan to settle by stipulated conditions.

6. Protesting someone else's application

  • Subscribe to the agency's application list for your basin.
  • Calendar the protest deadline — often 30 days from publication, and jurisdictional.
  • State a recognized ground: injury to my right (identified by number and priority, with the mechanism) · no unappropriated water · overstated historical use · not a beneficial use · contrary to the public interest or area-of-origin protection.
  • Describe your own right precisely — priority, quantity, historical use.
  • Coordinate with other protestants to share an engineer.
  • Enter the process intending to settle by stipulation.
  • Do not protest reflexively; agencies remember.

7. Responding to curtailment

  • Comply while contesting. Diverting out of priority destroys credibility and generates penalties.
  • Verify the priority ordering and the accounting.
  • Evaluate a futile call — would the curtailed water physically reach the caller in usable quantity? (Requires hydrology.)
  • Check whether the senior is calling for more than historical consumptive use or is not applying water to beneficial use.
  • Check whether the senior right has been partially forfeited.
  • Pursue deals: lease the senior right · buy a subordination · provide augmentation · join a water bank · negotiate a rotation with the watermaster's help.
  • Long term: acquire a senior right · develop storage · join an augmentation plan · change the cropping pattern.

8. General stream adjudication

  • Calendar the statement of claim deadline immediately.
  • File the statement of claim — accurately. Overstating invites objection; understating locks in a smaller right.
  • Assemble evidence: permit or decree · diversion records · aerial photographs by year · crop and acreage history · district records · tax records · affidavits from people who remember the use · any prior decree.
  • Be present for the field investigation; show the diversion and the irrigated ground.
  • Read the draft report line by line: priority, quantity, acreage, season, point of diversion.
  • Object on time to errors in your right.
  • Read your neighbors' entries and object to inflated upstream rights.
  • Join a coalition to share experts and counsel.

9. District, ditch company, and project relationships

  • Identify the entity: irrigation district · mutual ditch or canal company · conservancy district · federal reclamation project.
  • Obtain the bylaws or district rules, delivery schedule and rotation, assessment structure, and transfer and share-conveyance rules.
  • For a reclamation project: read the repayment or water service contract, including acreage and transfer restrictions.
  • Confirm shares convey with the land where applicable.
  • Confirm assessments are current — they are liens and can cost delivery and shares.
  • Note that district rules may forbid what state law allows.

10. Storage

  • A storage right is a separate appropriation, with its own priority and quantity, typically limited to one fill per year.
  • Dam safety approval: design review · construction inspection · ongoing operation, maintenance, and inspection obligations.
  • Physical permits for construction in a waterway.
  • Land and inundation easements.
  • Refill, carryover, and second-fill rules.
  • Minimum release or bypass flow requirements.
  • Consider alternatives: buying storage capacity or shares · project water contracts · aquifer storage and recovery · exchanges · water banking.
  • Note: a stock or ornamental pond is an appropriation and usually needs a right and may need dam safety review.

11. Physical work in or near a waterway

  • Federal fill permit for placing dredged or fill material in jurisdictional waters.
  • Federal discharge permit for any point source discharge.
  • Note the narrowed federal jurisdiction after Sackett — adjacent wetlands require a continuous surface connection.
  • Check the state wetland and stream alteration program, which may regulate what federal law no longer does.
  • State water quality certification.
  • State dam safety or stream alteration approval.
  • Local floodplain, shoreline, and grading permits.
  • Screen for endangered species and cultural resources early — each can add a year.
  • Hold a pre-application meeting with the regulating agencies. It is free and it is the most useful hour in the process.
  • Never begin work before permits issue. Unpermitted fill generates some of the largest penalties in environmental law.

Related documents

Educational only, not legal advice. Water law is state and basin specific. Consult the state water agency, the local watermaster, and counsel in the basin.