Water Law in a Nutshell
Authors:
Getches, David H. / Zellmer, Sandi B. / Amos, Adell
Edition:
5th
Copyright Date:
2015
22 chapters
have results for water Law
Chapter Ten. Water Service and Supply Organizations 69 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.
- All of these various water organizations are constituted either under state or federal law. In the eastern states, where riparian rights prevailed, it was necessary to pass special laws granting authority to companies and even municipalities selling water to their residents to take water for use on non-riparian lands. In the western United States, the federal government initially, and then the newly constituted state governments adopted laws that facilitated the creation of water organizations to deliver water to users and reduce the risk associated with development.
- 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...
- Water organizations reduce the cost and risk of water development by eliminating the need for users to develop their own water access and delivery systems. Organizations can consolidate supplies of water from multiple sources or water rights, thus reducing the risk associated with relying solely on a single supply. Organizations are also able to take advantage of special legal powers associated with their formation under state or federal laws.
- 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.
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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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Chapter Two. Riparian Rights 104 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.
- 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, §...
- 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.
- 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.
- For many years, the common law system of reconciling water use conflicts through courts applying a reasonable use standard was an effective and efficient way to manage water resources in the eastern United States. In the last several decades, however, eastern states have seen more frequent water shortages, increased demand from urban and industrial growth, and excessive pollution. This dynamic has led many riparian states to adopt statutory provisions, including permit requirements, to address competing water uses. These states are known as “regulated riparian” states. 1 Waters and Water Rights § 9.
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Chapter One. Overview and Introduction to Water Law 39 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 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.
- 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.
- Even when water beneath the surface of land was connected with a stream or lake, the law treated groundwater under a separate set of rules or no rules at all. More progressive legal approaches now integrate groundwater and surface water management. For example, when pumping from a well affects the rights of a person using stream water (or vice-versa) most states now administer the groundwater as a part of the surface water system.
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Chapter Six. Diffused Surface Waters 34 results (showing 5 best matches)
- 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.
- 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.
- 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.
- Utah and Colorado also extend state control to diffused surface waters. The Utah constitutional provision asserting jurisdiction over all waters in the state precludes the use of diffused surface waters outside the state regulatory scheme. Stubbs v. Ercanbrack, 13 Utah 2d 45, 49, 368 P.2d 461, 463 (1962); Richlands Irrigation Co. v. Westview Irrigation Co., 80 P.2d 458 (Utah 1938) (holding that all water destined for a stream is effectively part of the stream). Similarly, Colorado’s Constitution provides that “natural streams” are within the state’s power. Colo. Const. Art. 16, § 5. The Colorado courts have construed this provision as reaching diffused surface water, so that a landowner may not capture and use runoff destined for a stream outside of the appropriation system. Empire Lodge Homeowners’ Ass’n v. Moyer, 39 P.3d 1139, 1148 (Colo. 2001); Nevius v. Smith, 279 P. 44 (Colo. 1929). The Colorado and Utah approach is based upon the realization that stream flow depends on runoff...
- Water other than diffused surface water may have to be disposed of or drained from one’s land. For instance, a person using water diverted from a stream or lake ( , for irrigation or to power a mill) may need to dispose of the unconsumed water, often referred to as “tail water.” Tail water is not diffused surface water and it can only be drained across the land of another within a natural stream channel in a manner that does not increase lower landowner’s burden. Loosli v. Heseman, 66 Idaho 469, 162 P.2d 393 (1945).
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Chapter Three. Prior Appropriation 248 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.
- 30 U.S.C. § 51. The Act expressly confirmed the rights of miners and appropriators of water. It formally sanctioned appropriations of water on the public lands made before or after passage of the Act, as well as rights of way for transporting the water across public lands. The Act failed to define any method of acquiring water rights from the federal government, thus deferring to established local customs, state or territorial laws, and judicial rulings. Broder v. Natoma Water Co., 101 U.S. 274, 276 (1879).
- Montana’s water law is typical. Data that must be included under the Montana law include the name of claimant and watercourse, quantity of water, time of use, legal description of point of diversion, purpose of use, date of application to beneficial use, and any applicable support such as a map, plat, or aerial photograph. Mont. Code Ann. § 85–2–361.
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Chapter Eight. Federal and Indian Reserved Rights 93 results (showing 5 best matches)
- Federal reserved rights are considered to be interests in real property and are held subject to the restraints on alienation established by federal Indian Law, namely the Indian Non-Intercourse Act. 25 U.S.C § 177. Absent federal legislative permission, tribes probably cannot sell, lease, or exchange their water rights. 2 Water and Water Rights § 37.02(f). While Congress has not yet given any blanket approval to Indian water leasing or other marketing arrangements, several water rights settlement approved by Congress have given specific authorization for transfer or lease of water rights off-reservation. Public Law 109–410, 120 Stat. 2762 (2006) (authorizing tribes to enter into leases of water rights); Public Law 106–382; 114 Stat. 1454 (implementing provisions of the Fort Peck/Montana Compact of 1985 that allow leasing of Indian water rights). Recent reserved water rights settlements anticipate off-reservation leasing and other ...for non-Indian water use. The 1973 report of the...
- Once asserted and more importantly adjudicated, Indian reserved rights can have an important impact on the quantity of water available to non-Indians. Often the priority dates for tribal claims predate many of the state law based claims held under the prior appropriation doctrine. United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) (establishing a priority date for the tribal water rights claims based on aboriginal uses as time immemorial, predating all state law based claims; and 1864 for irrigation uses based on the treaty date). Moreover, Indian reserved rights cannot be extinguished except by express legislation, even after the reservation is terminated and the land sold off, so long as there is a continuing purpose to be served. As a result, the presence of unadjudicated, time immemorial water rights has a tremendous impact on water resources management in the arid West. In response to this impact, many tribal water rights claims are addressed through negotiated water...
- The reserved water rights doctrine is closely tied to the history and settlement of the western United States. Prior to statehood, the federal government held land pursuant to treaties, purchases, and conquest. From 1866–1877, a series of federal statutes authorized public land to be “patented” into private ownership and ultimately made subject to the jurisdiction of newly formed states. The territorial governments and soon-to-be formed state governments, at around the same time, were recognizing and applying prior appropriation principles among miners and settlers. included some kind of water right for these private patentees. The Court concluded that the 1877 Desert Land Act had “effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself” and recognized that private water rights were established under state law. 295 U.S. at 158, 164. With this decision, the Court established that the allocation of water rights to private parties...
- 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).
- Indian reserved rights arise under federal law through treaties, statutes, agreements, and executive orders. Like all federal rights, the Supremacy Clause protects Indian reserved rights from interference by inconsistent state law. Moreover, consistent with its trust responsibility to tribes, the federal government has an obligation to assert and defend Indian water rights. Robert T. Anderson,
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Chapter Nine. Interstate and International Allocation 59 results (showing 5 best matches)
- (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.
- 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...
- 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 conserve and preserve water.” ....N.M. 1984) (finding that provisions that gave priority to New Mexico citizens during severe water...
- 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].”
- The United States is party to several water treaties with Canada, including the 1909 Boundary Waters Treaty, the Niagara River Water Diversion Treaty, the Saint Lawrence Treaty, and the Columbia River Treaty. Treaties with Mexico include the 1906 Irrigation Convention and the 1944 Treaty concerning the Colorado and other rivers. Once the federal government enters into a treaty with another nation, it is the “Supreme Law of the Land” under the Constitution; any inconsistent state laws are preempted. Thus, treaties affect the manner and extent to which state-defined rights may be exercised.
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Foreword to the Third Edition 6 results (showing 5 best matches)
- 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.
- 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...
- . 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,
- Water Law in a Nutshell
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Chapter Four. Hybrid Systems and Other Variations 58 results (showing 5 best matches)
- 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.
- This chapter also considers several special water allocation schemes existing in the United States, including the unique features of Louisiana’s and Hawaii’s water law as well as Pueblo water rights as recognized by California and New Mexico.
- , 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 California emerged—between appropriators on the public land, the prior appropriator acquires the superior right, but a settler (with legal rights to land) who has not yet taken water could not be defeated by an appropriator whose water use began after...
- 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 the land itself,” but that state law could establish water rights for these lands. at 158. Notably, the Supreme Court recognized two specific situations where the federal government retained an interest in water. First, the federal government retains an interest in the water on public domain lands where water is needed to carry out purposes on federal land. ...interest in water to...
- 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.
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Foreword to the Fourth Edition 6 results (showing 5 best matches)
- 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.
- 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.
- 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
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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.
- 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
- 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
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Chapter Seven. Navigable Waters 74 results (showing 5 best matches)
- Title to non-navigable beds of waters usually passed from the federal government to riparian landowners. Under the law of a few states, such as Wisconsin and Iowa, the state took title to the lands beneath certain “non-navigable” waters that had not been conveyed to private parties at the time of statehood. The states adopted their own tests of state navigability for this purpose.
- 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.
- 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 CWA also requires states to develop water quality standards. 33 U.S.C. § 1313(a)–(c). Water quality standards include designated uses of water bodies, numeric or narrative criteria as necessary to protect those uses, and the prevention of degradation of the current condition of water bodies within the state. States submit their water quality standards to EPA for review and approval. Water bodies that fail to meet approved water quality standards must be identified as impaired, and total maximum daily loads and pollutant management plans must be adopted. 33 U.S.C. § 1313(d). Water quality standards that fail to promote riparian ecology or to protect the conservation needs of water-dependent species may violate the CWA, and possibly the ESA. Zellmer,
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Foreword to the First Edition 3 results
- 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.
- 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.
- 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
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Chapter Five. Groundwater 104 results (showing 5 best matches)
- 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. 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”).
- Although the scientific community has long recognized the interconnection of groundwater and surface water, the law has been slow to catch up. Although a few early cases enforced rights based on this truth, Smith v. City of Brooklyn, 54 N.E. 787 (N.Y. 1899) (riparian entitled to prevent interference with streamflow from use of groundwater), the laws of many states are still founded on the misconception that the two types of water exist in isolation from one another; thus, they apply separate regulatory systems for groundwater and surface water.
- To varying degrees, several states, including California, Colorado, New Mexico, Utah, and Washington, administer groundwater sources affected by or affecting surface flow as part of the surface appropriation system. Cal. Water Code § 1200; Colo. Rev. Stat § 37–92–102(1)(a); Templeton v. Pecos Val. Artesian Conservancy Dist., 332 P.2d 465 (N.M. 1958); Utah Code Ann. § 73–3–1; Wash. Rev. Code § 90.03.010. Environmental Law Foundation v. State Water Res. Control Bd., Case No. 34–2010–80000583 (Cal. Super. Ct., July 15, 2014) (imposing California’s public trust doctrine on hydrologically connected groundwater); Justesen v. Olsen, 40 P.2d 802, 809 (Utah 1935) (“An appropriation when made follows the water to its original source whether through surface or subterranean streams or through percolation”). The 1973 Report of the National Water Commission and the 1998 Report of the Western Water Policy Review Advisory Commission recommended wider adoption of this approach.
- 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.
- 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.
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Acknowledgments 3 results
- 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.
- 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.
- Both authors are grateful to the Rocky Mountain Mineral Law Foundation for providing a research grant to complete this project.
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Table of Cases 107 results (showing 5 best matches)
- Environmental Law Fnd. v. State Water Res. Control Bd. ............... 142
- Central and West Basin Water Replenishment Dist. v. Southern Calif. Water Co. ............... 181
- Central Delta Water Agency v. State Water Res. Control Bd. ............... 42, 136
- Colorado River Water Conservation Dist. v. Municipal Subdistrict, N. Colorado Water Conservancy Dist. ............... 154
- Gualala Water Co. v. State Water Res. Control Bd. ............... 221
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Outline 73 results (showing 5 best matches)
Index 73 results (showing 5 best matches)
Half Title 1 result
Title Page 4 results
Advisory Board 10 results (showing 5 best matches)
- 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
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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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.
