Two neighboring farmers in Burleigh County, North Dakota both hold water appropriation permits to divert water from the same tributary for crop irrigation. Farmer Olsen received his permit in 1978, and Farmer Brandt received his permit in 2005. During a severe drought year, the tributary's flow drops to a level that can only satisfy one of the two permits in full. The North Dakota State Water Commission determines that only one farmer may divert water that season. Which of the following correctly describes the outcome under North Dakota water law?
Correct Answer
D) Farmer Olsen has priority because his 1978 permit is senior, and junior appropriators like Brandt must cease diversion first during shortages
North Dakota follows the prior appropriation doctrine, which operates on the foundational principle of 'first in time, first in right.' Farmer Olsen's 1978 permit is senior to Farmer Brandt's 2005 permit. During a shortage, the junior appropriator (Brandt) must curtail or completely cease diversion before the senior appropriator (Olsen) is affected. This means Olsen can take his full permitted amount before Brandt takes any water. This 'use it or lose it, first in right' hierarchy is what distinguishes prior appropriation from riparian or correlative rights systems, and it is directly tested on the North Dakota state exam because of the state's agricultural and energy-sector water demands.
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