Water rights of the Colorado River are governed by the “Law of the River.” The Law of the River is made up of interstate compacts, a series of federal laws, and with several United States Supreme Court cases. The documents making up the Law of the River can be found here. [http://www.usbr.gov/uc/rm/crsp/lor.html] One component of the Law of the River deals with “present perfected rights” (PPRs). This blog post addresses PPRs.
As a general matter, PPRs are the most senior rights on the Colorado River. (Rethinking the Future of the Colorado River, Draft Interim Report of the Colorado River Governance Initiative, 46, December, 2010.(rethinking)) PPRs are water rights originating under state law and state law must be consulted in determining the exact nature of the PPRs. (Bryant v. Yellen (1980) 447 U.S. 352, 370-371.) However, even though the source of PPRs is state law “the question of whether rights provided by state law amount to present perfected rights . . . is obviously a federal one.” (Id. at 317, fn 22.)
The term “present perfected rights” first appeared in the Law of the River in Article VIII of the Colorado River Compact executed on November 24, 1922. Article VIII states:
Present and perfected rights to the beneficial use of water of the Colorado River system are unimpaired by this compact. Whenever storage capacity of 5,000,000 acre-feet shall have been provided on the main Colorado River within or for the benefit of the Lower Basin, then claims of such rights, if any, by appropriators or users of water in the Lower Basin against appropriators or users of water in the Upper Basin shall attach to and be satisfied from water that may be stored not in conflict with Article III.
The term is in section VI of the Boulder Canyon Project Act of December 21, 1928, 43 U.S.C. § 617e, stating:
That the dam and reservoir provided for by Section 1 hereof shall be used: First, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses and satisfaction of present perfected rights in pursuance of Article VIII of said Colorado River Compact; and third, for power . . .
Later, the Report of the Special Master in Arizona v. California (1963) 375 U.S. 546, dated December 5, 1960, states that neither the Compact nor the Boulder Canyon Project Act defined PPRs, but that “it seemed clear that the term was not used in either of these enactments to refer to notices of appropriation which had not yet become the foundation of a going economy—mere paper filings . . .” Finally, the Supreme Court, in Arizona v. California (1964) 376 U.S. 340, 341 defined PPRs in Article I(G)-(H):
(G) ‘Perfected right’ means a water right acquired in accordance with State law, which right has been exercised by actual division or a specific quantity of water that has been applied to a defined area of land or to definite municipal or industrial works, and in addition shall include water rights created by reservation of mainstream water for the use of Federal establishments under Federal law whether or not the water has been applied to beneficial use;
(H) ‘Present perfected rights’ means perfected rights as here defined, existing as of June 25, 1929, the effective date of the Boulder Canyon Act.
(See also Arizona v. California, 547 U.S. 150, 154 (2006) and Mohave Valley Irr. and Drainage Dist. v. Norton, 244 F.3d 1164, 1165 (9th Cir. 2001).) The Upper Colorado Basin Compact states that rights in the upper basin must have been perfected prior to November 24, 1922, when the Colorado River Compact was signed. (Upper Colorado Basin Compact, Art. IV(c).) This creates some ambiguity whether November 25, 1922 or June 25, 1929 is the priority date for PPRs and whether the 1929 date established by Arizona v. California applies to states that were not involved in the litigation. (Rethinking the Future of the Colorado River, Draft Interim Report of the Colorado River Governance Initiative, 47, December, 2010.)
PPRs can also refer to land that the federal government withdraws from the public domain, which land contains a reservation of unappropriated appurtenant water necessary to accomplish the purpose of the reservation. (High Counrty Citizens’ Alliance v. Norton, 448 F.Supp.2d 1235, 1239 (D.CO 2006), citing Cappaert v. United States, 426 U.S. 128, 138 and Winters v. United States, 207 U.S. 564 (1908).) This federal reserved right “is a ‘present perfected right’ and is entitled to priority.” (Id. citing Arizona v. California, 460 U.S. 605, 610 (1983).)
PPRs are important because Article II(B)(3) of the 1964 Supreme Court Decree states that in any year where there is less than 7.5 million acre-feet available for use in California, Nevada, and Arizona, the Secretary of the Interior must first supply water to PPRs, in order of priority, regardless of state lines. (Id. at 342-43; see also Mohave Valley Irr. and Drainage Dist., 244 F.3d at 1165.) Later, section 301(b) of the Colorado River Basin Project Act modified Article II(B)(3), stating that Article II(B)(3) must be administered to give PPRs, users with existing contracts, and Federal reservations priority before the Central Arizona Project. (Public Law 90-357 (September 30, 1968) 82 Stat. 885, codified at 43 U.S.C. § 1521(b).) There is some debate whether a party possessing a PPR may divert water without a contract with the U.S. Bureau of Reclamation. (See Robert Glennon and Michael J. Pearce, Transferring Mainstem Colorado River Water Rights: The Arizona Experience (Summer 2007) 49 Ariz. L. Rev 235, 247; see also Section 5 of the Boulder Canyon Project Act, at 43 U.S.C. § 617d.) In short, PPRs are a high priority water right on the Colorado River.
The United States Supreme Court has determined the PPRs in the Colorado River Lower Basin states. In Article VI of its 1964 Decree, the Supreme Court set forth the manner in which the PPRs would be determined, stating that within two years Arizona, Nevada, and California would each present to the Court a list of the PPRs in their state. (Arizona v. California, 376 U.S., at 351-52.) Each state and water user had to prove that they possessed PPRs. Many of the parties asserting PPRs did not have proof of the extent of their diversions prior to 1929. Furthermore, there were many unresolved issues regarding how PPRs were calculated, such as whether the PPRs should be asserted as a single diversion amount in acre-feet or in terms or irrigable acreage and whether districts such as Imperial Irrigation District, had to prove use for individual parcels or the amount used district-wide. Eventually, the parties each filed their lists of PPRs with the Supreme Court and motioned in the Supreme Court for a determination of the PPRs within their states. On January 9, 1979, the Supreme Court granted the States’ motion for a supplemental decree on the PPR issue left open by Article VI of the Court’s 1964 Decree. (Arizona v. California, 439 U.S. 419 (1979); see also Arizona v. California 547 U.S. 150, 166-181.) The Court determined the PPRs in California (3,019,573 acre-feet), Nevada (13,304 acre-feet), and Arizona (1,077,971acre-feet). (Id.)
Another case elaborates on PPRs in the Imperial Irrigation District. (Yellen v. Hickel, 352 F.Supp. 1300 (1972).) In Yellen, the plaintiffs filed their suit to enforce section 5 of the Reclamation Law of 1902. Section 5 bars the Bureau of Reclamation from selling water for use on land that exceeds 160-acres owned by one party, and requiring that the owner of the land reside on the property. (43 U.S.C. § 431.) The defendants argued, inter alia, that the Boulder Canyon Project Act governed Colorado River water use and that it recognized and gave priority to PPRs. Defendants argued that because they possessed PPRs they could not be denied Colorado River water because of the acreage and residency requirements of the Reclamation Law. In the end, the Court held that it did not have the jurisdiction to determine whether the plaintiffs possessed PPRs, but that if it did have jurisdiction, it would have determined that the defendants did not possess PPRs. (Yellen, at 1319.) The Court stated that the defendants did not present evidence of PPRs as of 1929. The defendants had filed water rights claims to divert water from the Colorado River in 1900, but by 1903, their intakes were clogged with silt and they ceased their diversions pursuant to the rights filed. Therefore, defendants could not establish perfected water rights as of 1929. Pursuant to Yellen, any individual asserting a PPR should be prepared to demonstrate the use and establishment of their PPR prior to 1929.
The PPRs in the upper basin have not been defined by the Supreme Court. These states are in the process of determining their PPRs internally. (Rethinking the Future of the Colorado River, Draft Interim Report of the Colorado River Governance Initiative, 47, December, 2010.) The PPRs for the upper basin were calculated during the Colorado River Compact negotiations around 1920 and provide the best estimate, or at least a starting point, for determining PPRs in the Upper Basin. The Bureau of Reclamation and the Committee on Water Requirements, a subcommittee of the Colorado River Negotiations, each calculated a separate estimate of PPRs:
|State||Water Consumption (AF)(for irrigation), circa 1920|
|Table A, Bureau of Reclamation||Table C, Committee on Water Requirements|
|Upper Basin Total||2,267,000||2,180,750|
(Rethinking the Future of the Colorado River, Draft Interim Report of the Colorado River Governance Initiative, 48, December, 2010.)
In conclusion, though there is some ambiguity, PPRs are fairly defined under the Law of the River and generally present a high priority to Colorado River water if a party can meet the burden of establishing PPRs.