On May 2, 2011, the United States Supreme Court decided the case of Montana v. Wyoming (No. 137, Orig.; 2011 WL 1631038). Although the case had to do with an interstate water compact between those states, the court decided the case on general western water law principles.
Of particular interest, the Court determined that junior appropriators have no claim to customary return flows by senior users under the “no injury” principle in relation to the efficiency of water-application practices. The Court held that the no injury rule only protected junior appropriators from changes in return flows due to a change in the senior’s place of appropriation, place of use, and purpose for use. Thus, senior users may raise the efficiency of their water-application practices, thus reducing the amount of return flow, and junior users cannot complain.
The Court found support for this ruling in the rule of recapture, which allows appropriators to collect and reuse water so long as it remains on the appropriator’s property. The Court determined that if an appropriator can capture and reuse his return flows, then a junior user should not be permitted to complain about reduced return flows due to increases in efficiency. Montana and Wyoming have adopted the rule of recapture, as well as Oregon. Cleaver v. Judd, 238 Or. 266, 270-72 (1964); Jones v. Warmsprings Irr. Dist., 162 Or. 186, 196 (1939); Wood v. Woodcock, 276 Or. 49, 59 (1976).
For a more complete summary of Montana v. Wyoming, visit the Oregon State Bar’s Environmental and Natural Resources Section’s E-Outlook update at: http://osbenviro.homestead.com/Newsletters/11_EOutlook_Issue5_MTvWY_Water_Rts.pdf. The website provides a summary drafted by Sarah R. Liljefelt, Associate Attorney with Schroeder Law Offices, P.C.
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