Foreword to the Second Edition 3 results
- Water law has been an especially active field since the first edition of
- This second edition represents a revision of the first in light of changes in the law through late 1989. Citations appear at relevant places to nearly all of the principal cases appearing in Meyers, Tarlock, Corbridge, and Getches,
- I am indebted to research assistants from the University of Colorado School of Law for their work in making this edition possible. Ellen Ostheimer Creagar and Michael James Grode spent many hours to ensure the accuracy and currency of this edition and edited the manuscript with care. I am also grateful to Elizabeth Thomas and John S. Hajdik for their assistance earlier in the project.
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Foreword to the Third Edition 6 results (showing 5 best matches)
- Water Law in a Nutshell
- Over one hundred case citations have been added to this edition of the Nutshell. It is current through the summer of 1996. As in the previous edition, an effort was made to include virtually every principal case found in the three leading law school casebooks: Tarlock, Corbridge & Getches,
- When the first edition of this book appeared in 1984, there was a dearth of current supplemental sources available to students or lawyers to assist them in gaining a basic understanding of water law. That changed with the appearance in 1988 of the treatise by A. Dan Tarlock entitled
- State laws reflect the pressures for accommodating diverse and expanding water uses. Courts, agencies, and legislatures are beginning to weigh issues of public interest and environmental considerations in water decisions. To cope with rising demands, states are tightening their administration of water rights, insisting on greater efficiency and conservation, and many are adjudicating all the rights in a river basin to ensure more certainty and to cull out unused and overstated rights. The law of surface use continues to change in response to recreational demands. States are also turning more to the conjunctive management of groundwater and surface water to get optimum use out of their available water resources. The basic principles of riparian and appropriation law have not changed greatly. Indeed, today they are less often determinative of disputes than regulatory and administrative requirements of permit statutes. One exception is the doctrine of beneficial use in prior... ...law...
- The role of federal law is more pervasive than ever in deciding the extent to which water can be allocated and used for particular purposes. Because states typically have been slow to incorporate environmental and other public concerns in their water laws, federal laws have filled some of the gaps. Not only water quality protection under the Clean Water Act, but provisions that protect wetlands and waterways from being filled in or drained, and laws like the Endangered Species Act, profoundly influence how and where water is used. Meanwhile, the predominant federal role in financing and building water projects through most of this century has faded in relative importance.
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Foreword to the Fifth Edition 4 results
- The role of law is particularly important when so many varied needs must be recognized. More and more lawyers will be called upon to recognize and to resolve water rights conflicts. Although law students are the primary audience of this Nutshell, the growing demand for and interest among lawyers addressing water-related legal issues has guided us in preparing this edition.
- It is somewhat unusual for an area of law to be defined by a particular resource, but water is unique in the diversity and importance of the needs it fills. Water quenches our thirst, gives life to essential food crops, furnishes habitat to fish and wildlife, produces power, and satisfies recreational and aesthetic needs. Although it is one of the most plentiful substances, it is considered precious because there is not always enough fresh water of the right quality in the right place at the right time. There is keen competition among water users. The same stream may be sought by a municipality for domestic use, a farmer for irrigation, a factory for carrying away waste, a power plant for cooling, boaters and fishers for recreation, and conservation interests for preservation of stream flows and the fish and wildlife species that rely on them.
- A decision to use water for a particular purpose can have far-reaching impacts. For instance, transporting water from a rural area across a mountain range to a city may provide water to sustain the city’s population, but it may also force a decline in agricultural productivity and the farming community built on it, facilitate more rapid growth in the importing city, prevent future development of the exporting rural area, curtail recreational opportunities, make sewage treatment more difficult as streamflows to dilute wastewater discharges are diminished, deprive the exporting area of groundwater recharge, and cause ecological changes in both areas. Balancing these conflicting interests and demands is made ever more complex, challenging, and essential in the face of chronic drought cycles intensified by climate change.
- This book is designed to support water law courses based on any of the major casebooks in the field; thus, nearly every principal case in each of the casebooks is discussed or at least cited. Much of the organizational scheme of the fourth edition has been retained, but we have taken some liberties to clarify, streamline, and highlight important emerging issues, such as the public trust doctrine, environmental interests, non-consumptive uses of water, federal reserved rights, conjunctive use and management of surface and groundwater resources, and interstate and international themes. Throughout the book, we have strived to remain true to the vision of Professor Getches. We are honored—and humbled—by the opportunity to follow in his footsteps, though of course we could never purport to fill his shoes.
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Chapter Ten. Water Service and Supply Organizations 78 results (showing 5 best matches)
- While much of the study of water law involves the water rights of individual appropriators who obtain their water directly from surface or groundwater appropriations, the majority of domestic and commercial water users, as well as a significant number of agricultural users, receive their water through a public or private water organization. These water organizations come in many different forms and are established under state and federal law.
- In the 1990’s, California passed a law requiring developers to show sufficient water supply for their development projects. Developers were able to find ways around the legislation, so in 2001 the law was strengthened. The stricter law required a Water Supply Assessment for developments of over 500 or more residential units (or the equivalent) to prove that the project would have sufficient water for a minimum of twenty years. The stricter law also restricted local cities and counties from allowing developers access to construction permits unless sufficient water was available.
- Except when state law is directly in conflict with a provision of the federal reclamation law, the Reclamation Act requires federal compliance with state water law. California v. United States, 438 U.S. 645 (1978). State law generally governs disputes between federal reclamation interests and state-sanctioned water rights, provided there is no conflict with federal law. Wild Fish Conservancy v. Jewell, 730 F.3d 791, 799 (9th Cir. 2013); In re Application of Denver By Board of Water Comm’rs, 935 F.2d 1143, 1151 (10th Cir. 1991). Questions involving conflict between state water law and federal law in Reclamation projects have often arisen in the context of application of the Endangered Species Act to Reclamation projects. See, e.g., Natural Res. Def. Council v. Houston, 146 F.3d 1118 (9th Cir. 1998); Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206 (9th Cir. 1999); Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109 (10th Cir. 2003). Another example of this dynamic...
- In Colorado, the Colorado Water Quality Control Commission promulgates water quality standards under the Colorado Water Quality Control Act and assists in administering pollution control measures. The Colorado Division of Water Resources (DWR), also known as the Office of the State Engineer, administers water rights, represents Colorado in interstate water compact proceedings, monitors stream flows and water use, approves construction and repair of dams, and maintains numerous databases of Colorado water information. By comparison, the Colorado Water Conservation Board engages in joint federal-state water project and water use planning and is involved in financing public and private irrigation projects, while the Ground Water Commission determines rights and regulates water use in designated groundwater basins. For details,
- Today, the majority of water used for municipal, industrial and agricultural purposes is provided by a public, quasi-public, or private water institution ranging in size from small, local water delivery companies to large federal agencies. Examples of such organizations include the Metropolitan Water District in Los Angeles, California, the Southern Nevada Water Authority headquartered in Las Vegas, Nevada and the for-profit American Water headquartered in New Jersey with offices in 15 states. Unless created under federal law, state law governs the creation and operation of these organizations. One or more agencies may be involved in the process of getting water from its source to the end user’s tap. That process can include water collection or extraction, transportation, storage, treatment, and distribution.
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Chapter Two. Riparian Rights 120 results (showing 5 best matches)
- In both riparian and prior appropriation jurisdictions, water rights are essentially permanent. In riparian states, one must retain ownership of the riparian lands to preserve a water right. In a prior appropriation state one must put the water to beneficial use to maintain a water right. As long as these conditions are met, the water right never expires or is forfeited. Both riparian law and prior appropriation law have been critiqued for protecting early uses without a mechanism to re-evaluate as new needs for water arise. Regulated riparian law attempts to address this concern by limiting the duration of a water rights permit.
- While both riparian law and prior appropriation law have mechanisms to protect the public’s interest in water, each doctrine has limitations. In pure riparian jurisdictions, water rights are essentially an interest associated with land ownership. Often the “public” does not qualify as a landowner that can assert the reasonableness of their use in the typical riparian case. In the modern era, all prior appropriation jurisdictions have provisions that allow water rights to be established for non-consumptive uses and have requirements that water rights applications be evaluated against public interest standards. However, given the first-in-time, first-in-right nature of appropriative rights, the public’s interest in the water is often established later in time in the priority system. Regulated riparian law seeks to remedy some of these challenges.
- In most regulated riparian states, the state legislature has given an administrative agency the power to confer water rights. 1 Waters and Water Rights § 9.03. Florida and Arkansas represent exceptions to this general trend by delegating the permitting authority to regional conservation and water districts. Ark. Code Ann. §§ 15–22–202(4); 15–22–221; Fla. Stat. §§ 373.069 to 373.083. Administrative officials charged with issuing permits must evaluate competing uses using factors that closely resemble the common law reasonableness factors set forth in pure riparian states. 1 Waters and Water Rights § 9.03(5)(A). Thus, the difference between pure riparian states and regulated riparian states does not lie in the substantive decisions of which rights are reasonable and which are not. Rather, the differences are found in the decision maker and the timing of the decision. In terms of the decision maker, a court determines the reasonableness of a water use as against another water use in...
- Prior to the eighteenth century, most U.S. water cases involved rights of navigation and fishing. Notions of “water rights” were governed by the natural flow doctrine, which entitled each riparian owner to the enjoyment of the watercourse without interference from others. The dawn of the Industrial Revolution, and the consequent increase in water-driven mills, created a need for uniform principles of law that could be applied in the growing number of water disputes concerned with access to the flow of the stream and the quantity of water available for particular uses. The riparian doctrine, with deep origins in the Institutes of Justinian from Roman law as well as English common law and the French civil code, soon emerged in American courts.
- Regulated riparian statutes typically provide that water is a form of public property. 1 Waters and Water Rights § 9.01. The recognition of water as public property distinguishes regulated riparianism from pure riparian law, where water rights are essentially a form of common property, and prior appropriation law, where water rights are often characterized as private property. Regulated riparian codes also set forth criteria for evaluating water use and/or preferences for water use that specifically recognize the public’s interest in the water. These often include particular reference to conserving water, protecting the public interest, establishing minimum stream flows, and protecting public water supplies, among others. ...10B–2; Ark. Code Ann. § 15–22–201; Conn. Gen. Stat. § 22a–380; Del. Code Ann. tit. 7, § 6001(c); Fla. Stat. § 373.016(3); Haw. Rev. Stat. § 174C–2; Iowa Code § 455B.262; Ky. Rev. Stat. Ann. § 151.110(1); Md. Code Ann., Envir. § 5–501; Mass. Gen. Laws ch. 21G, §...
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Chapter Three. Prior Appropriation 282 results (showing 5 best matches)
- Private rights to use water cannot be acquired in all types of water. A state’s constitution or statutes may define waters subject to state jurisdiction and control in a way that excludes certain waters from the allocation of private rights. Such provisions may describe waters of a “natural stream” as being “public property” or subject to appropriation, or they may exclude certain types of waters (such as runoff or seasonal floods) from the reach of private water rights. State law may also recognize greater or lesser private rights in various types of water ( groundwater) and define the extent to which such waters are subject to public use.
- Appropriation of water began several years before statehood in most western states. Miners developed relatively uniform customs for water appropriations, and these were incorporated into the common law of water rights by the early territorial and state court systems. A miner’s right to get water depended upon two acts: posting notice at the point of diversion and diverting the water to apply it to a beneficial use.
- State and federal law treat permission to divert and store water as distinct from permission to construct and maintain the physical works. In order to maintain a storage reservoir, a person or organization must secure a storage water right under state law and also secure the relevant permits and permission to construct and maintain the dam facilities either under state or federal law depending on the size and location of that facility.
- The public trust doctrine has developed alongside the water allocation systems in each state. Although allocation systems seek to establish reliable rights to use water and in some contexts recognize such rights as “vested property interests,” the law in most states also maintains that water is a public and common resource that may not be capable of full privatization.
- In states with less explicit public interest provisions, courts have directed water administrators to consider a wide variety of factors. Idaho’s statute says only that the Director of Water Resources is to reject or modify a permit application if the appropriation “will conflict with the local public interest.” Idaho Code Ann. § 42–203A. Local public interest is defined as “the interests that the people in the area directly affected by a proposed water use have in the effects of such use on the public water resource.” . § 42–202B. The statute further provides that the director must consider whether the proposed use “will adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outside of the watershed or local area where the source of water originates.” . § 42–203A. The Idaho Supreme Court held that public interest elements also include those reflected in Idaho laws...water
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Chapter One. Overview and Introduction to Water Law 43 results (showing 5 best matches)
- Three central questions arise in the study of water law: (1) how do the established legal systems for allocating rights to use water compare; (2) how well do these systems perform in equitably allocating this precious resource; and (3) what are appropriate solutions to the unresolved issues in water law. The law’s success—in any field, but especially in water law—has to be evaluated in terms of what society needs from it.
- The study of water law is, at one level, the study of property concepts, though rights to use water are peculiar. The fact that water is a moving resource necessarily limits the appropriateness of traditional concepts of ownership. Although water laws differ widely, notions of substantial public rights in the resource is a major theme across allocation regimes and throughout history. One result is that lawmakers have superimposed administrative systems in an attempt to regulate private interests in the use of water and to advance the broader public interest. Accordingly, the study of water law in the modern era requires a deep understanding of state and federal administrative law.
- The field of water law also includes a study of the legal process. In many areas, the law is well-developed and it changes only slowly and at the periphery, but water law is a comparatively dynamic field. It illustrates how courts, legislatures, and agencies create and alter law according to physical and societal stimuli: one set of conditions drove the initial development of water law in the eastern United States, but different circumstances provoked changes in the West.
- The United States is involved in activities that sometimes affect, and because of federal supremacy, preempt state water law. In the first sixty or seventy years of the twentieth century, the federal role in water resources involved giving technical and financial support to states and managing large federal water development projects for navigation, flood control, agriculture, power generation, and other uses. Since the 1970s, the federal government’s involvement with water has turned away from development and become more focused on environmental regulation. Today, federal laws that protect endangered species, wetlands, and water quality are at least as important as state water laws in shaping water development and use.
- Early court decisions in the West recognized water rights based on the miners’ customs. The system worked satisfactorily for farmers, too, and became entrenched in the laws of virtually every western state. Rights, then, belong to anyone who puts water to a “beneficial use” anywhere (on riparian or non-riparian land), with superiority over anyone who later begins using water. Unlike riparian law, the development of water rights depends on usage and not on land ownership. Once a person puts water to a beneficial use and complies with any statutory requirements, a water right is perfected and remains valid so long as it continues to be used.
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Foreword to the Fourth Edition 6 results (showing 5 best matches)
- All of these issues are treated in this revision, at least with the brevity suggested by the title of the book and the series of which is a part. The robust activity in the field in recent years has resulted in the addition of citations to more than fifty new cases and many statutory cites, even following a conservative approach to including only the most important or illustrative cases. Because the book is designed to support courses based on any of the three major casebooks in the field, nearly every principal case in each of those books is cited or discussed. This edition retains the organization of earlier editions, which has drawn compliments from students and their professors. Only cursory treatment is given to the related field of water pollution law. That issue is thoroughly treated elsewhere, such as in
- Water law is a growing area of attention for lawyers and policy makers throughout the country. It is more important than ever in the West and now, with population growth and climate change, the East has begun to feel the pressure of limits that were long familiar in less humid regions. It is predictable that more lawyers in more regions of the country will be called upon to recognize and to resolve water rights issues. Although the primary audience of this book is law students, the growing demand for and interest among lawyers addressing water law issues has also guided this revision.
- From the early days of western expansion, water law has been a hot topic in the semi-arid regions of the United States. Initially, agriculture and mining and later the settlement of towns and cities demanded water from scarce seasonal supplies. In many areas water users years ago established legal rights to take the full capacity of nearby rivers. Today, the West is the most urbanized region of the country and cities seek to import water from afar and enter into transactions to buy or lease water rights from farmers who hold valuable old water rights. The impacts of chronic drought cycles are now exacerbated by climate change.
- Especially important in the eastern states is the demand placed on groundwater, leading to more exacting administration by state officials and more conflicts among users. Municipal groundwater pumping often interferes with small wells. In the last decade one of the most active areas of water law in the West has been conflict over the use of groundwater that depletes surface supplies of water users taking their water directly from rivers.
- Another area that continues to increase in importance is the use of water for recreation and fish and wildlife as the economic value of those uses competes with the value of agriculture and other uses that have well-established rights. This is part of a larger effort to allocate water—traditionally considered a public resource—consistent with “the public interest.” Water administrators in West and East alike are challenged to determine and to apply public interest criteria in issuing water rights permits. Interstate conflict over shared rivers continues, with major tensions over the Colorado River and several other rivers of the Southeast.
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Chapter Nine. Interstate and International Allocation 80 results (showing 5 best matches)
- Where individual water users in one state attempt to prevent interference with interstate waters by individual water users in another state, substantial differences in the respective state laws can make it difficult to determine rights. For instance, if a downstream state follows riparian law and an upstream state follows appropriation law, can an individual in the downstream state insist on unimpeded flows, thereby defeating the established uses of upstream appropriators? It is theoretically simpler, however, to integrate priorities of water users on a stream that crosses state lines when both are appropriation states. In an early case, the Supreme Court presumed that disputes among such users would be resolved by priority, as if no state boundary existed. Bean v. Morris, 221 U.S. 485 (1911). However, the decision did not limit either state in how it defines or regulates rights to waters within its boundaries (absent federal legislation or an interstate adjudication). The idea that...
- In Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982), the Supreme Court invalidated a Nebraska statute that restricted groundwater opinion reviewed two earlier decisions: Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349 (1908), which held that New Jersey could prohibit the interstate transfer of publicly owned water, and City of Altus v. Carr, 255 F. Supp. 828 (W.D. Tex. 1966), which struck down a Texas law that prohibited the export of groundwater which, under state law, was treated as an article of commerce. The , and concluded that groundwater is an article of commerce subject to the Commerce Clause. It recognized, however, that a state may have a legitimate interest in granting “in times of severe shortage … a limited preference for its own citizens” in the utilization of water; thus “[a] demonstrably arid State conceivably might be able to marshal evidence to establish a close means-end relationship between even a total ban on the exportation of water and a purpose to...
- (3) Federal law controls both the interstate and intrastate distribution of project waters, preempting state water law. (Note the contrast to the mass allocation approach, which leaves intrastate allocation to state law.) Therefore, the Secretary is empowered to allocate waters in times of shortage by any reasonable method, although “present perfected rights” must be satisfied.
- As is the case with equitable apportionments by the Supreme Court, apportionments by compact are binding upon the citizens of the compacting states whether or not individual citizens were parties to the negotiations. In Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938), New Mexico and Colorado had agreed to divide the flow of the La Plata River equally so each state would get the full flow of the river every other day. The plaintiff, a senior appropriator, sought to enjoin the rotation scheme as a violation of rights established under state law. The Court denied relief, stating that a water rights decree under state law cannot confer water rights in excess of the state’s share of the waters. It also held that there had been no compensable taking of vested property rights or violation of due process because the plaintiff had ample opportunity to object during the negotiations, and there was no evidence of inequity or bad faith in the negotiations nor of a...
- A unique issue was raised in Tarrant Reg’l Water Dist. v. Herrmann, 133 S. Ct. 2120 (2013). Texas claimed that the Red River Compact allowed it to cross state lines and divert a portion of Oklahoma’s allocation of water, and that Oklahoma’s attempt to stop Texas violated the Dormant Commerce Clause. Oklahoma law requires out of state diversions to be approved by the Oklahoma Water Resources Board, and prohibits permit issuance when the proposed diversion would prevent Oklahoma from meeting its interstate compact obligations. Oklahoma law also requires that water be “developed to the maximum extend feasible for the benefit of Oklahoma so that out-of-state downstream users will not acquire vested rights therein to the detriment of the citizens of [Oklahoma].”
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Chapter Eight. Federal and Indian Reserved Rights 102 results (showing 5 best matches)
- With the Supreme Court’s decision in the case in 1955 and then its decision in in 1963, the reserved water rights doctrine, thought by some to be a principle of Indian law, was recognized as establishing water rights for non-Indian federal reserved lands. Federal Power Comm’n v. Oregon (Pelton Dam), 349 U.S. 435, 448 (1955); Arizona v. California, 373 U.S. 546, 601 (1963). In the Court upheld an implied reserved water rights for a power site withdrawal. In the Court upheld the extension of the reserved rights doctrine to a national recreation area, a national forest, and two wildlife refuges. The reserved water rights doctrine provides that when the federal government sets aside land for particular purposes, it also reserves sufficient unappropriated water to accomplish those purposes regardless of limitations that might otherwise be imposed on the use of that water under applicable state law.
- Many of the lands that were distributed through allotment were then conveyed to non-Indian owners. This raised questions of whether a non-Indian owner of allotted land could also claim a share of the tribal water right. In Colville Confederated Tribes v. Walton ( ), the Ninth Circuit Court of Appeals interpreted the Allotment Act as giving individual allottees a right to use a share of the tribe’s reserved water rights. 647 F.2d 42, 50–51 (9th Cir. 1981). A non-Indian purchaser of an allotment can take the right to use a share of the tribe’s reserved water with a priority date as of the creation of the reservation provided there has been reasonable diligence in putting the water to use. These rights have been criticized as giving allotment purchasers an advantage over their neighbors whose lands were homesteaded; they obtain rights superior to most other private water users. This disrupts state law water allocation schemes, provides an incentive to transfer Indian lands to non-...water
- While all water rights are exercised based on a priority date, the reserved rights doctrine uses the date of the reservation, not the date of diversion for beneficial use or the date of asserting the right, to establish priority. This raises concerns among state water law administrators and holders of state water rights because federal reserved water rights often remain unused for many years and exist in uncertain quantities. Unquantified or unused federal reserved rights create a cloud on active water users and potentially disrupts a state’s water rights system. With regard to tribal rights, especially those based on treaties, a tribe can assert a right with a very senior priority date or even “time immemorial”—a time in prehistory. Water rights for these reservations hold priority dates before most state-based rights were established. U.S. v. Adair, 723 F.2d 1394 (9th Cir. 1983).
- The courts have not decided how the concept of reserved water rights applies in a riparian jurisdiction. 2 Water Rights § 37.01(c)(2). However, a Virginia state court judge gave it careful consideration in 2007 and questioned whether reserved rights would be necessary in a riparian jurisdiction where all reasonable uses of riparian owners are protected. Mattaponi Indian Tribe v. Commonwealth, 72 Va. Cir. 444 (2007). The court recognized, though, that “riparian law does not guarantee a riparian owner sufficient water for a particular purpose” as the reserved water rights doctrine does. . at 457–58. Reserved rights were asserted by the Seminole Tribe in Florida, but the issue was resolved in a settlement agreement. 25 U.S.C. §§ 1772–1772(g). In any event, riparian rights, like prior appropriation rights, are premised on state law, while reserved rights depend on the implied intent of Congress (and the tribes in the case of Indian reserved rights). If there is evidence of implied...water
- the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit.
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Chapter Four. Hybrid Systems and Other Variations 70 results (showing 5 best matches)
- The issue of whether the Desert Lands Act extinguished all riparian rights on federal lands patented after March 3, 1877 was before the U.S. Supreme Court in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935). An Oregon landowner, whose property bordered on a stream, claimed riparian rights based on an 1885 patent, predating Oregon’s statute subjecting all water in the state to appropriation. The Court upheld Oregon’s interpretation of the Desert Land Act in Hough v. Porter, 95 P. 732 (Or. 1908), which abrogated riparian rights on lands patented after 1877, but left other states free to define water rights as they pleased. The Court in said that federal land laws recognize that each state has “the right … to determine for itself to what extent the rule of appropriation or the common law rule in respect to riparian rights should obtain.” 295 U.S. at 164. The Court announced that Congress “effected a severance of all waters upon the public domain … from...law
- Water law in Hawaii is defined more fundamentally than in other states by the notion that water, in its natural state, is part of the state’s public trust. Hawaiian water law has its roots in an ancient system of land tenure. During Hawaii’s territorial period court decisions dealt with water as an individual property right but state courts later revived Hawaii’s ancient notions of water as a public resource. Modern Hawaii follows a State Water Code, which is limited in scope by public trust provisions in the state’s constitution. Hawaii Constitution, Article XI, Section 1 and 7.
- Shortly after the decision in , the California Supreme Court acknowledged the continuing viability of the riparian doctrine as between bona fide settlers and appropriators subsequent to settlement. In Crandall v. Woods, 8 Cal. 136 (1857), as in , the parties were all on the public domain. The defendant, however, had settled on a tract contiguous to a stream under the public land laws so was not a trespasser on public land. The defendant did not start using water until after the plaintiff had put water to use downstream to supply a nearby town. When the defendant later started diverting water, the downstream user sued, claiming it had a valid prior appropriation. The court held that the defendant had settled under federal laws and was the absolute owner as against all but the United States. Thus the defendant was entitled to riparian rights subject only to the rights of appropriators who diverted water prior to the time he claimed his land. From these two cases, the rule for... ...a...
- During pendency of this litigation, the state constitution was amended to recognize the state’s trust obligation to assure water resource use for the public benefit and to require establishment of a water resources agency to regulate resource use and conservation. In 1987, Hawaii adopted its State Water Code providing for a comprehensive state water plan, the designation of water management areas, and the protection of instream uses. While the State Water Code allows for water to be used outside of its original watershed, the public trust provisions of the Hawaiian constitution require greater scrutiny to do so. Existing and new water rights must have permits and the common law is largely supplanted once an area is designated as a water management area triggering the requirements.
- In a few places in the Southwest, pueblo water rights may be claimed under theories tracing to land grants and principles that were applied by predecessor Spanish or Mexican governments. Similar to the ancient Hawaiian system, pueblo law characterizes water as communal property. Pueblos employ a waterseer to protect water rights. In California, the waterseer is called a zanjero and typically appointed by a government official. In New Mexico, the position is called a majordomo and is typically elected.
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Chapter Six. Diffused Surface Waters 40 results (showing 5 best matches)
- When dealing with diffuse surface water sources, the law is often focused on how to channel, control, or drain the water in order to make the land more valuable. For example, landowners may direct surface flow toward another’s land in order to keep water from collecting and saturating or flooding their property. In wetter climates, most litigation involves conflicts around channeling and drainage. In arid areas, the issue of whether a landowner may take and use surface flows unrestrained by state laws concerning appropriation of water may also arise.
- Much of water law deals with the use and allocation of water between users under riparian law, prior appropriation, and other legal systems. These systems address water that has entered a waterbody regulated by the state allocation system. Diffused surface waters, such as runoff from rainfall or snowmelt, have not yet joined a distinct watercourse or waterbody. The law treats diffused surface water separately from surface water allocated from watercourses.
- The regulation of surface water is often dependent on an individual state’s definition of which water is subject to control by the state. Some states follow a rule of capture, and refuse to regulate the use of diffused surface waters. Other states regulate the right to use diffused surface water through the state water law allocation system. In recent years, several states have grappled with the issue of rainwater catchment, with some allowing appropriators to capture it and put it to use and others prohibiting any interference with it.
- State law defines which waters are within the definition of a “watercourse” for purposes of the allocation system in the states. In general, states exert authority over “natural watercourses.” A natural watercourse is usually defined as a body of water flowing in a defined channel with bed and banks. Locklin v. City of Lafayette, 7 Cal. 4th 327, 345, 867 P.2d 724, 734 (1994); State v. Hiber, 48 Wyo. 172, 44 P.2d 1005 (1935). In both Texas and Kansas, a watercourse exists in there is a defined bed and bank, a current or flow of water, and a permanent source of supply. Edwards Aquifer Authority v. Day, 274 S.W.3d 742, 752 (Tex. App. 2008) aff’d, 369 S.W.3d 814 (Tex. 2012); Johnson v. Board of County Com’rs of Pratt County, 259 Kan. 305, 314, 913 P.2d 119, 127 (1996). In Indiana, a watercourse is not defined by whether there are bed and banks, but rather by whether there is a substantial existence, unity, regularity, and dependability of the water’s flow along a distinguishable course...
- The common enemy rule, with its roots in English common law, provides that landowners may take any action necessary in order to avoid diffused surface waters without liability for resulting damage to one’s neighbor. Such actions include building a barrier to water flowing down from adjoining land, such as a dike along one’s upper boundary, or altering natural drainage patterns by a system of berms, ditches, or pumps to keep it out of a basement or away from a field. The doctrine may also allow development of drainage systems to augment natural drainage. Excavations may be made for drains and channels to collect and divert flows or accumulations of water. Argyelan v. Haviland, 435 N.E.2d 973, 977 (Ind. 1982). The only limitation is that one may not store surface water (as in a dam or reservoir) and then “cast it” upon another.
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Foreword to the First Edition 3 results
- In spite of all its interesting issues and its great practical importance, water law is a field in which there is a dearth of supplemental sources that are useful to students. A few voluminous treatises are available to aid the practitioner in finding answers to difficult questions. But there is no basic source. This book is a modest effort at providing a supple. mental source for the student of water law. It also should serve as an orientation device for lawyers who do not regularly practice in the field and for non-lawyers who need a background in the subject.
- The study of water is complicated by the widely differing systems that exist in the several states. No attempt is made here to draw together and explicate the complete law of any particular state. This book states the general rules that apply within major systems of water law and attempts to give examples of special rules applicable in particular states. Generally, the statutory and case law of the states is current through 1982, and relevant United States Supreme Court cases is current through July, 1983.
- This book owes its existence to many people. A number of student research assistants at the University of Colorado School of Law worked on its preparation. Mark Cohen, Esq. worked diligently and made an important imprint on Chapters Two and Four. Richard Cauble, Esq. devoted many hours and made a fine, professional contribution to Chapters Five, Six, Eight, and Nine. George Jent, Esq., Stephen Ellis, Esq., Sharon Nelson, Esq. and Dary James all assisted with parts of Chapter Three.
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Acknowledgments 4 results
- Adell Amos also extends her gratitude to David Getches for years of dedication to teaching and advancing the field of water law. She would like to thank the superb research assistants from University of Oregon School of Law Nate Bellinger, James Bunts, Will Carlon, Matt Cline, Elena Domingo, Nate Gurol, Malia Losordo, Jamie McCleod, Wes Knoll, and Victoria Wilder as well as the administrative support of Jill Elizabeth and the Environmental and Natural Resources Law Center, particularly Emily Johnson. She would like to dedicate this version of the Nutshell to her new baby girl, Mildred, born in August of 2014 during the last months of preparing this manuscript.
- Sandra Zellmer is deeply grateful to David Getches for his guidance and his monumental contribution to the field of water law. She also thanks the University of Nebraska College of Law for its generous scholarship stipend, the University of Colorado Law School for supporting her as a visiting scholar-in-residence during the preparation of this manuscript, and Nebraska law students Samantha Staley and Katherine Miller for their outstanding research assistance.
- Both authors are grateful to the Rocky Mountain Mineral Law Foundation for providing a research grant to complete this project.
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2015 LEG, Inc. d/b/a West Academic
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Chapter Seven. Navigable Waters 111 results (showing 5 best matches)
- Federal power may come into conflict with state-created water rights in a number of ways. If a state-sanctioned water right is taken or totally destroyed by federal action, the right to compensation will depend in part on whether the water right was subject to the navigation servitude. (Regulatory takings claims related to water rights but arising in other contexts are covered elsewhere in this book.)
- Waters within state boundaries are generally allocated according to state and local laws absent some preemptive exercise of congressional power. In California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), the Supreme Court held that persons taking title to public lands take only those water rights perfected according to state law because estates in land and water were severed by the 1877 Desert Land Act. Nevertheless, federal authority is paramount when Congress chooses to exercise a constitutionally based power that requires water. The sources of federal authority include the commerce power (and its subsidiary the navigation power), the property power, and the treaty power. Even the defense power has been invoked to uphold the federal government’s construction of a hydroelectric dam that provided power to munitions plants. Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936). The question is rarely whether power to exercise its power to displace state law.
- The United States may regulate water use to carry out federal legislative purposes. The primary question for a court is whether Congress intended to override, or preempt, state law. California v. U.S., 438 U.S. 645 (1978). In United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899), the Supreme Court sustained the federal government’s regulatory power to prevent the exercise of state-created water rights in order to carry out federal legislation protecting the navigable capacity of streams. Congress may also authorize officials to distribute water from a federal project without regard to priorities established under state law. Arizona v. California, 373 U.S. 546 (1963).
- The federal government continues to play a significant role in water resources management through its primacy in matters concerning navigation, its financial support of major water development projects, its programs and policies for the public lands, and its regulation of water quality and endangered species. As the federal role in water resources management has grown, so too have tensions between state and federal sovereignty. Conflicts tend to be especially acute in the western states because of water scarcity and the concentration of federal lands there.
- Federal dams can dramatically affect the flow of streams, disrupting state water allocation. Although conflicts usually involve state-sanctioned water rights, other state laws for the protection of fish habitat and the environment may also be affected. This is especially evident in states such as Oregon and Washington, where large federal dams obstruct spawning and migration of salmon and other anadromous fish.
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Chapter Five. Groundwater 131 results (showing 5 best matches)
- stored water to lose its separate identity. Jensen v. Dep’t of Ecology, 685 P.2d 1068 (Wash. 1984) (en banc). In California, underground storage constitutes a beneficial use, Cal. Water Code § 1242, and a public importer and storer has a right in the stored supply as long as its use does not harm existing groundwater rights. In City of Los Angeles v. City of San Fernando, 537 P.2d 1250 (Cal. 1975), the court held that Los Angeles had the exclusive right to recapture imported water it stored in an groundwater basin. In Niles Sand & Gravel Co. v. Alameda Cnty. Water Dist., 112 Cal. Rptr. 846 (Ct. App. 1974), a water district was engaged in a groundwater storage program. Niles pumped water out of its sand and gravel pit, which was hydrologically connected to the storage aquifer. The dewatering operation drew down the level of the stored water in the aquifer while the water district was attempting to recharge it to prevent salt-water intrusion. The court enjoined pumping, ruling that...
- Similarly, the Nebraska Supreme Court held that a state law recognizing rights to store and recover water in the aquifers under the lands of others did not violate the property rights of overlying landowners. In re Application U-2, 413 N.W.2d 290 (Neb. 1987) (approving an application for recognition of incidental aquifer storage); Neb. Rev. Stat. § 46–295 (recognizing that “rights to water intentionally or incidentally stored underground and rights to withdrawal of such water should be formally recognized and quantified”).
- Once a well begins operating, water from the surrounding aquifer begins percolating through the formation to replace the water being withdrawn. As shown in Figure 2 below, this creates a , a cone-shaped depression in the water table from which water has temporarily been removed. The cone is inverted—its tip is at the point of withdrawal and its base is the surface of the water table. As the cone of influence broadens, it may affect the wells of neighboring users, forcing them to deepen or move their wells to avoid losing their supply.
- States have taken varying approaches to conjunctive use management. In New Mexico, a senior stream appropriator may be able to “follow the source” to get a more reliable supply by sinking a well to tap water flowing under the stream. In Templeton v. Pecos Valley Artesian Conservancy Dist., 332 P.2d 465 (N.M. 1958), a senior water right holder who was unable to divert sufficient surface water because groundwater pumping had diminished surface flows sought to drill a well in the alluvial aquifer supporting the stream. The court held that the supplemental well used the same water from a deeper source, so it had the original surface priority rather than a more recent priority as of the time the well was drilled. at 471. Later, the “follow-the-source” rule was held to allow surface appropriators to tap a deep aquifer that partially fed a shallower aquifer connected with the river. Langenegger v. Carlsbad Irrigation Dist., 483 P.2d 297 (N.M. 1971). The factual question is whether the...
- Courts and legislatures have occasionally characterized waters that flow underground within “reasonably ascertainable boundaries” and as “a constant stream in a known and well-defined natural channel” as underground streams. Hayes v. Adams, 218 P. 933, 935 (Or. 1923). An underground stream, like percolating waters, is in fact groundwater, but some states subject it to the law of surface streams rather than groundwater law. N. Gualala Water Co. v. State Water Res. Control Bd., 43 Cal. Rptr. 3d 821, 831 (Cal. Ct. App.), (2006) (noting that “classification disputes in this field quickly take on an Alice-in-Wonderland quality because the legal categories … are drawn from antiquated case law and bear little or no relationship to hydrological realities”). In determining whether groundwater is stream-like or percolating, courts may consider circumstantial evidence, such as vegetation growing on the surface, indicating the course of the alleged stream.
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Outline 133 results (showing 5 best matches)
Title Page 5 results
Table of Cases 126 results (showing 5 best matches)
- Environmental Law Fnd. v. State Water Res. Control Bd. ............... 142
- All Rights to Use Water in the Big Horn River System, In re General Adjudication of ............... 363, 368, 369, 371, 374
- All Rights to Use Water in the Gila River System & Source (Gila III), In re the General Adjudication of ............... 374
- All Rights to Use Water in the Gila River System and Source, In re General Adjudication of ............... 253
- Central and West Basin Water Replenishment Dist. v. Southern Calif. Water Co. ............... 181
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Index 80 results (showing 5 best matches)
Advisory Board 11 results (showing 5 best matches)
- Robert A. Sullivan Professor of Law Emeritus,
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
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- Publication Date: June 12th, 2015
- ISBN: 9780314280695
- Subject: Water Rights
- Series: Nutshells
- Type: Overviews
- Description: The new edition adds dozens of recent decisions and key statutory changes. Virtually every principal case in the leading casebooks is cited or discussed, making it an excellent aid for students in any water law course. The revised book deals with changes in evolving areas like groundwater-surface water conflicts, public recreational uses, instream flow protection, federal water development, takings claims, and public interest concerns.