Water right

This article discusses water usage laws in common law. For a discussion of the right to water as a human right under international law, see right to water.

Water right in water law refers to the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid areas where irrigation is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water and ground water in the same manner, while others use different principles for each.

Types of water rights

Fundamental differences exist between the nature and source of water rights in different countries. Generally, water rights are based on the water law that applies in a particular country and, at their most basic, are classified as land-based or use-based rights.

Some countries allow their subdivisions to establish independent water laws. For example, each state and territory of the United States has its own set of water laws that establish water rights that may be land-based, use-based, or both.

Land-based

Some water rights are based on land ownership or possession. For example, many common law jurisdictions recognize riparian rights, which are protected by property law. Riparian rights state that only the owner of the banks of the water source have a right to the 'undiminished, unaltered flow' of the water.[1]

Finnish water rights

In Finland, waterbodies are generally privately owned, which is not the case in most EU countries, but Finland also applies the Roman law principle of aqua profluens (flowing water), according to which the freely flowing water in waterbodies cannot be owned or possessed. This means that the owners of waterbodies cannot prohibit diversion of water for agricultural, industrial, municipal, or domestic use according to the provisions of the Finnish Water Law[2] and cannot prohibit use of the waterbodies for recreational purposes.

Community-based rights

In some jurisdictions water rights are granted directly to communities and water is reserved to provide sufficient capacity for the future growth of that particular community. For example, California provides communities and other water users within watersheds senior status over appropriative (use-based) water rights solely because they are located where the water originates and naturally flows. A second example of community-based water rights is pueblo water rights. As recognized by California, pueblo water rights are grants to individual settlements (i.e. pueblos) over all streams and rivers flowing through the city and to all groundwater aquifers underlying that particular city. The pueblo's claim expands with the needs of the city and may be used to supply the needs of areas that are later annexed to the city.[3][4][5] While California recognizes pueblo water rights, pueblo water rights are controversial. Some modern scholars and courts argue that the pueblo water rights doctrine lacks a historical basis in Spanish or Mexican water law.[6]

Use-based rights

Use-based rights do not relate to land and instead rely on whether the water user has legal access to the water source. As a general rule, use-based rights are usufructuary, fully transferable to anyone.[1] Under common law use-based rights only apply to navigable-in-fact waterways in which there is a presumptive easement, often referred to as a navigable servitude.

Appropriation

Appropriative water rights are the most common use-based water rights in the United States and are most commonly found in the western states where water is scarcest. “The appropriation doctrine confers upon one who actually diverts and uses water the right to do so provided that the water is used for reasonable and beneficial uses,” regardless of whether that person owns land contiguous to the watercourse.[7] "[A]s between appropriators, the rule of priority is 'first in time, first in right.'"[8] The modern system of prior appropriation water rights is characterized by five principles:

  1. Exclusive right is given to the original appropriator, and all following privileges are conditional upon precedent rights.
  2. All privileges are conditional upon beneficial use.
  3. Water may be used on riparian lands or non-riparian lands (i.e. water may be used on the land next to the water source, or on land removed from the water source)
  4. Diversion is permitted, regardless of the shrinkage of the river or stream.
  5. The privilege may be lost through non-use.[9]

Beneficial use is defined as agricultural, industrial, or urban use. Environmental uses, such as maintaining body of water and the wildlife that use it, were not initially regarded as beneficial uses in some states but have been accepted in some areas.[10] Every water right is parameterized by an annual yield and an appropriation date. When a water right is sold, it maintains its original appropriation date.

Appropriative water rights are not always applied exclusively, as demonstrated by California which recognizes several different forms of water rights concurrently just for surface water. It recognizes a separate set of water rights for groundwater.

In-stream Water Rights

In-stream water rights are rights that only apply to water in a stream, and cannot be diverted for usage. These rights are most commonly used to protect endangered species or to bolster the number of a threatened aquatic species.

History of water rights

In Roman times, the law was that people could obtain temporary usufructuary rights for running water. These rights were independent of land ownership, and lasted as long as use continued.[1] Under Roman law, no land was "owned" by citizens, it was all owned by the "republic" and controlled by politicians.

In Medieval times, the common law of the day treated all freshwater streams as static, meaning landowners owned parts of rivers, with full accompanying rights. Landowners could also seek damages for loss of water diverted upstream. Non-landowners did not have use rights, except by obtaining a prescription.[1]

Over time, rights evolved from being land based to use based, allowing non-landowners to hold enforceable rights. A reasonable use rule evolved in some countries.

Water rights in the United States

In the United States, there are two divergent systems for determining water rights. Riparian water rights (derived from English common law) are common in the east and prior appropriation water rights (developed in Colorado and California) are common in the west. Each state has its own variations on these basic principles, as informed by custom, culture, geography, legislation and case law. Californian law, for example, includes elements of both systems. In general, a water right is established by obtaining an authorization from the state in the form of a water right permit. A legal right is formally consummated, or perfected, by exercising the water right permit and using the water for a beneficial purpose.

Under the prior appropriation doctrine, water rights are "first in time, first in right". That is, the older, or senior, water right may operate to the exclusion of junior water rights. The concept of "priority date" is significant. The priority date is generally associated with the date that water was first put to beneficial use, or the date that a successful application for a water right was submitted, and indicates the relative status of seniority among competing users. Older rights are senior. More recent rights are junior.

Water rights are generally established pursuant to state law, but there are exceptions, most notably, the concept of federal reserved water rights. Federal reserved water rights are superimposed over state water systems and exhibit several unique characteristics. They are superior to the rights of subsequent water users, cannot be lost through non-use, and are immune to state-specific standards such as the “beneficial” and “reasonable” use doctrines.[11] Reserved water rights are rights that are established when the federal government reserves land for a specific federal purpose. Courts have held that there is an implied water right to provide the minimum amount of water necessary to effectuate the primary purposes of the reservation . Examples of reservations include Indian reservations, national wildlife refuges, federal forests and military bases. The federal government has also successfully invoked federal reserved water rights for several entities administered by the National Park Service such as Rocky Mountain and Yellowstone National Parks as well as the Red Wild and Scenic River in New Mexico.[11]

Proceedings to determine the relative priority of claims to water rights are known as adjudications. Through Congress's passage of the McCarren amendment, the federal government has consented to having its claims adjudicated in state courts.

All states offer mechanisms for changing how a water right is exercised, e.g., amending the point of diversion or withdrawal, the place of use and the purpose of use. In reviewing such requests, the state must guard against the impairment of other water rights, the enlargement of the water right and injury to the public interest.

Water rights generally emerge from a person's ownership of the land bordering the banks of a watercourse or from a person's actual use of a watercourse. Water rights are conferred and regulated by judge-made common law, state and federal legislative bodies, and other government departments. Water rights can also be created by contract, as when one person transfers his water rights to another.

In the eighteenth century, regulation of water was primarily governed by custom and practice. As the U.S. population expanded over the next two centuries, however, and the use of water for agrarian and domestic purposes increased, water became viewed as a finite and frequently scarce resource. As a result, laws were passed to establish guidelines for the fair distribution of this resource. Courts began developing common-law doctrines to accommodate landowners who asserted competing claims over a body of water. These doctrines govern three areas: riparian rights, surface water rights, and underground water rights.

An owner or possessor of land that abuts a natural stream, river, pond, or lake is called a riparian owner or proprietor. The law gives riparian owners certain rights to water that are incident to possession of the adjacent land. Depending on the jurisdiction in which a watercourse is located, riparian rights generally fall into one of three categories.

First, riparian owners may be entitled to the "natural flow" of a watercourse. Under the natural flow doctrine, riparian owners have a right to enjoy the natural condition of a watercourse, undiminished in quantity or quality by other riparian owners. Every riparian owner enjoys this right to the same extent and degree, and each such owner maintains a qualified right to use the water for domestic purposes, such as drinking and bathing.

However, this qualified right does not entitle riparian owners to transport water away from the land abutting the watercourse. Nor does it permit riparian owners to use the water for most irrigation projects or commercial enterprises. Sprinkling gardens and watering animals are normally considered permissible uses under the natural flow doctrine of riparian rights.

Second, riparian owners may be entitled to the "reasonable use" of a watercourse. States that recognize the reasonable use doctrine found the natural flow doctrine too restrictive. During the industrial revolution of the nineteenth century, some U.S. courts applied the natural flow doctrine to prohibit riparian owners from detaining or diverting a watercourse for commercial development, such as manufacturing and milling, because such development impermissibly altered the water's original condition.

In replacing the natural flow doctrine, a majority of jurisdictions in the United States now permit riparian owners to make any reasonable use of water that does not unduly interfere with the competing rights and interests of other riparian owners. Unlike the natural flow doctrine, which seeks to preserve water in its original condition, the reasonable use doctrine facilitates domestic and commercial endeavors that are carried out in a productive and reasonable manner.

When two riparian owners assert competing claims over the exercise of certain water rights, courts applying the reasonable use doctrine generally attempt to measure the economic value of the water rights to each owner. Courts also try to evaluate the prospective value to society that would result from a riparian owner's proposed use, as well as its probable costs. No single factor is decisive in a court's analysis.

Third, riparian owners may be entitled to the "prior appropriation" of a watercourse. Where the reasonable use doctrine requires courts to balance the competing interests of riparian owners, the doctrine of prior appropriation initially grants a superior legal right to the first riparian owner who makes a beneficial use of a watercourse. The prior appropriation doctrine is applied in most arid western states, including Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming and requires the riparian owner to demonstrate that she is using the water in an economically efficient manner. Consequently, the rights of a riparian owner under the prior appropriation doctrine are always subject to the rights of other riparian owners who can demonstrate a more economically efficient use.

Under any of the three doctrines, the interests of riparian owners are limited by the constitutional authority of the state and federal governments. The Commerce Clause of the U.S. Constitution gives Congress the power to regulate Navigable Waters, a power that Congress has exercised in a variety of ways, including the construction of dams. In those instances where Congress does not exercise its power under the Commerce Clause, states retain authority under their own constitutions to regulate waterways for the public good.

However, the eminent domain clause of the Fifth Amendment to the U.S. Constitution limits the power of state and federal governments to impinge on the riparian rights of landowners by prohibiting the enactment of any laws or regulations that amount to a "taking" of private property. Laws and regulations that completely deprive a riparian owner of legally cognizable water rights constitute an illegal governmental taking of private property for Fifth Amendment purposes. The Fifth Amendment requires the government to pay the victims of takings an amount equal to the fair market value of the water rights.

Some litigation arises not from the manner in which neighboring owners appropriate water but from the manner in which they get rid of it. The disposal of surface waters, which consist of drainage from rain, springs, and melting snow, is typically the source of such litigation. This type of water gathers on the surface of the earth but never joins a stream, lake, or other well-defined body of water.

Litigation arises when one owner drains excess surface water onto neighboring property. Individuals who own elevated property may precipitate a dispute by accelerating the force or quantity of surface water running downhill, and individuals who own property on a lower level may rankle their neighbors by backing up surface water through damming and filling. Courts are split on how to resolve such disputes.

Some courts apply the common-law rule that allows landowners to use any method of surface water removal they choose without liability for flooding that may result to nearby property. Application of this rule generally rewards assertive and clever landowners and does not discourage neighbors from engaging in petty or vindictive squabbles over surface water removal.

Other courts apply the civil-law rule, which stems from Louisiana, a civil-law jurisdiction. This rule imposes Strict Liability for any damage caused by a landowner who interrupts or alters the natural flow of water. The civil-law rule encourages neighbors to let nature take its course and live with the consequences that may follow from excessive accumulation of standing surface water.

Over the last quarter century many courts have begun applying the reasonable use rule to surface water disputes. This rule enables landowners to make reasonable alterations to their land for drainage purposes as long as the alteration does not unduly interfere with a neighbor's right to do the same. In applying this rule, courts balance the neighbors' competing needs, the feasibility of more appropriate methods of drainage, and the comparative severity of injuries.

Surface water that seeps underground can also create conditions ripe for litigation. Sand, sod, gravel, and even rock are permeable substances in which natural springs may form and moisture can collect. Underground reservoirs can be tapped by artificial wells that are used in conjunction by commercial, municipal, and private parties. When an underground water supply is appreciably depleted by one party, other parties with an interest in the well may sue for damages.

As with surface water and riparian rights, three theories of underground water rights have evolved. The first theory, known as the absolute ownership theory, derives from English Law and affords landowners the right to withdraw as much underground water as they wish, for whatever purpose, requiring their neighbors to fend for themselves. Under the second theory, known as the American rule, landowners may withdraw as much underground water as they like as long as it is not done for a malicious purpose or in a wasteful manner. This theory is now applied in a majority of jurisdictions in the United States.

California has developed a third theory of underground water rights, known as the correlative theory. The correlative theory provides each landowner with an equal right to use underground water for a beneficial purpose. But landowners are not given the prerogative to seriously deplete a neighbor's water supply. In the event of water shortage, courts may apportion an underground supply among landowners. Many states facing acute or chronic shortages have adopted the correlative theory of under-ground water rights.

Water rights can also be affected by the natural avulsion or accretion of lands underlying or bordering a watercourse. Avulsions are marked by a sudden and violent change to the bed or course of a stream or river, causing a measurable loss or addition to land. Accretions are marked by the natural erosion of soil on one side of a watercourse and the gradual addition of soil to the other side. The extended shoreline made by sedimentary deposits is called an alluvion. Water rights are not altered by avulsions. However, any accretions of soil enure to the benefit of the landowner whose holdings have increased by the alluvion addition.

Although water covers more than two-thirds of the earth's surface, U.S. law treats water as a limited resource that is in great demand. The manner in which this demand is satisfied varies according to the jurisdiction in which a water supply is located. In some jurisdictions the most productive use is rewarded, whereas in other jurisdictions the first use is protected. Several jurisdictions are dissatisfied with both approaches and allow a water supply to be reasonably appropriated by all interested parties. Each approach has its weaknesses, and jurisdictions will continue experimenting with established legal doctrines to better accommodate the supply and demand of water rights.

Resolution of interstate water conflicts

Because water bodies may cross political and jurisdictional boundaries, conflicts may arise. In the United States, three basic approaches are used to settle such conflicts: 1) Litigation before the Supreme Court of the United States; 2) Legislative resolution by the Congress of the United States; and 3) Negotiation and ratification of interstate compacts between states.[12] In the western United States, for example, the 1922 Colorado River Compact divides the Colorado River basin into two areas, the Upper Division (comprising Colorado, New Mexico, Utah and Wyoming) and the Lower Division (Nevada, Arizona and California). A comprehensive review of existing interstate water compacts has been published by the Model Interstate Water Compact Project at the University of New Mexico School of Law's Utton Transboundary Resource Center.[13]

Limitations on water rights

In California, courts have held that appropriation water rights may be limited under the public trust doctrine, a common law principle recognized by some courts, which holds that the public has access rights upon navigable waters and that navigable waters are held in trust for the use of the people. The public trust doctrine was invoked by the California Supreme Court in a case restricting the amount of water Los Angeles could divert from tributaries of Mono Lake. The case was filed by the Audubon Society and the Mono Lake Committee.

In the United States, navigable waters are subject to the commerce clause of the U.S. Constitution. The commerce clause provides the federal government the ability to restrict state issued water rights via, for example, the enforcement of water quality standards via the Federal Water Pollution Control Act (Clean Water Act), the Federal Power Act and the protection of endangered species via the Endangered Species Act.

See also

References

  1. 1 2 3 4 Guerin, K (2003). "Property Rights and Environmental Policy: A New Zealand Perspective". Wellington, New Zealand: New Zealand Treasury.
  2. ↑ Available online only in Finnish; available in English from email address listed here
  3. ↑ City of Los Angeles v. Pomeroy, 124 Cal. 597, 640-41 (1899)
  4. ↑ Hooker v. City of Los Angeles, 188 U.S. 314, 319-320 (1903)
  5. ↑ City of Los Angeles v. City of San Fernando, 14 Cal.3d 199 (Cal 1978)
  6. ↑ Text of STATE of New Mexico, ex rel. Eluid L. MARTINEZ, State Engineer, Plaintiff-Respondent, v. CITY OF LAS VEGAS, Defendant-Petitioner. No. 22,283 is available from:  Findlaw 
  7. ↑ United States v. State Water Res. Control Bd., 182 Cal.App.3d 82 (1986)
  8. ↑ United States v. State Water Res. Control Bd., 182 Cal.App.3d 82 (1986) (citing Irwin v. Phillips, 5 Cal. 140, 147 (1855)).
  9. ↑ Gopalakrishnan, Chennat (1973). "The Doctrine of Prior Appropriation and Its Impact on Water Development: A Critical Survey". American Journal of Economics and Sociology. 32 (1). pp. 61–72.
  10. ↑ Western States Water Laws Western States Instream Flow Summary.
  11. 1 2 "Federal Reserved Water Rights: An Intro". Federal Reserved Water Rights: An Intro. Retrieved 2016-04-16.
  12. ↑ Sherk, George William. "Dividing the Waters: The Resolution of Interstate Water Conflicts in the United States"
  13. ↑ http://uttoncenter.unm.edu/

Further reading

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