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Show 38 SURFACE WATERS irrigation water applied seeps into the underground and then per- colates slowly until it seeps back into the stream channel. This pro- cess may take several weeks, so that water applied to irrigation use in June might not seep_ back into the channel until late July or early August, thus augmenting the stream during a time of seasonal low flow. When irrigation uses create such a pattern of return flow, downstream users might have acquired their rights in reliance on such augmentation of low; flow for their source of water supply during the late summer period. That pattern of flow cannot be altered to their detriment, since the downstream users are entitled to pro- tection in time of use as well as amount of use; and upstream changes will not be permitted if they would seriously interfere with the pattern of return flow. Similar problems arise in connection with changes in purpose of use, such as a transfer of an irrigation right to an industrial or municipal use, but the same considerations must be evaluated with respect to both the quantity and the timing of the return flows from the original uses. ~b. Sales It was noted above that water rights may be sold and transferred in both riparian and appropriation jurisdictions. The restraints on sales in riparian jurisdictions are that the water right to be sold can- not be for a use on land which does not qualify as riparian land; and that the purchaser must remain subject to the same reasonable use restrictions which were applicable to the seller. In appropriation jurisdictions the problems are somewhat more complex. Many States at an earlier day# viewed the water right as ¦an appurtenance to the land on which it was used, and would not permit the water right to be sold separate and apart from the land. The water right could be sold along with the land on which it was used, but could not be transferred separately. Most States have abandoned or relaxed this rule, but some disturb- ing vestiges remain. Some States authorize transfers despite the ap- purtenance rule, but in so doing reduce the date of priority on the right transferred by adopting as the new date of priority the actual date of transfer. This restriction is rather critical because, where streams are wholly appropriated, a water right with an early priority date (and thus having a dependable water supply), would be rendered virtually worthless if it were to be transferred- because it would then have the lowest priority on the stream and would seldom be entitled to any water supply. Another problem is that many entities holding water rights, such as irrigation districts, are prohibited either by statute or by their articles of incorporation from selling or transferring any part of their water rights. These restrictions were originally intended to protect the water users against improvident sales of water rights which would diminish the supply available to the users within the district to the point that they could not adequately satisfy their water use needs. But such restrictions in practice are seldom bene- ficial to the water users within the district. The board of directors, who would have to act upon and approve any water sale or transfer, |
