Chapter 1. Introduction to Water Law 49 results (showing 5 best matches)
- Water law governs the right to use fresh water, including both surface water—the water in lakes, rivers, and streams—and groundwater. (Coastal states might also use water law to regulate withdrawals of ocean water, such as for cooling water at power plants, but that is a far less important aspect of water law.) In most respects, water law is a form of property law, but the rules governing property rights in water differ greatly from the rules governing ownership of land. Moreover, some aspects of water law incorporate principles of tort law as well. In particular, it is rare to speak of water “ownership.” Because water is usually a flowing resource, water rights are characterized as
- However, water law also has aspects of public law. Water sustains human life and is an important in-place environmental resource, and thus it has crucial value to the public. As a result, water law is characterized by tension between private use rights and public ownership, management, and protection. Water law in the United States has evolved over time to acknowledge the changing human uses for, and valuation of, water resources. The evolution of water rights, and the forces that influence that evolution, are the subject of this book.
- States have also developed the structure and processes of water law. Chapter 5 examines how states have created and implemented statutory water codes, administrative permitting schemes, and water planning to replace the pure common law of water rights. These statutes, permitting regimes, and plans generally provide states with better tools to understand and control the use of both groundwater and surface water within their borders. However, they can also provide states with the means to change certain substantive aspects of the common law.
- In order to study the development of water law, however, it is necessary to first understand some fundamentals of how water works in nature, how humans use water, and what pressures humans are putting on the country’s water resources. This chapter thus begins by introducing the basis of hydrology and the water cycle. It then provides an overview of how humans use water and affect both water quality and the health of aquatic ecosystems, in the United States and globally. It also addresses the ways in which climate change is altering the availability, timing, and quality of water resources in the United States—resulting in the newest and potentially most significant challenge to the evolution of water law.
- The final section of the book explores the intersections of traditional water law and modern energy and environmental policies and laws. Chapter 10 looks at the links between water use and energy policy, known as the
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Chapter 13. Comprehensive Water Resources Management and Watershed Planning 53 results (showing 5 best matches)
- In several earlier chapters, we highlighted the fact that many aspects of water law are unduly fragmented. Water quantity law is distinct from water quality law. Surface water and groundwater rights usually are governed by different, if often connected, bodies of law. When water bodies and water systems cut across geographic boundaries, they can be subject to multiple and conflicting bodies of law and management regimes, in addition to competition for water resources between jurisdictions. Numerous agencies and other decision makers often govern or influence water resources policy for single bodies of water, with some in charge of water quality, others water quantity, others fish and wildlife protection and management, and others related land use, dam construction and hydroelectric power generation or flood control.
- Thus, the conceptual breadth of water law and its potential to manage and protect water resources and aquatic ecosystems more comprehensively belies the reality that, for the most part, water law in western states remains devoted to allocation of property rights among competing users. Efforts to use water law more broadly are infrequent and constrained in their impact. This resistance to a system-based approach may reflect the fact that the primary mission of those responsible for implementing the statutory and administrative forms of water law in most states, certainly in the West where water quantity has the greatest potential to impair ecosystem and other public values, is to administer and enforce private water rights fairly and efficiently, and not to manage larger aquatic systems for a wider range of values.
- As was discussed in Chapter 11, it is a mistake to envision the Clean Water Act (CWA) and other aspects of water pollution law as entirely distinct from water quantity law. To begin, the underlying objective of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Similarly, the statutory definition of water “pollution” is the “man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water,” and diminution of water quantity can have impacts on all of those attributes of water bodies. Thus, conceptually, it should not seem strange that the CWA might be used in ways that protect water quantity as well as water quality.
- Indeed, as explained in Chapter 11, the U.S. Supreme Court found that a sharp divide between water quality and water quantity is an “artificial distinction” and upheld a state water quality certification based on minimum stream flows. Moreover, at least some states have incorporated minimum flow requirements into their system of water quality standards. Likewise, there are cases in which plaintiffs have used nuisance law, the traditional common-law remedy to address water pollution, to protect water quantity as well as water quality, just as riparian rights and prior appropriation doctrines have been used to redress water pollution. Thus, the apparent legal distinction between water quality and water quantity is not entirely accurate.
- Moreover, also as highlighted in other chapters, there is an ongoing tension among those aspects of water law and water resources policy that focuses on utility for traditional economic uses and those laws and institutions designed to restore and protect the resource itself—that is, between laws and policies that focus on discrete components of water systems as opposed to those that seek to protect and manage the watershed as an aquatic ecosystem and for broader ecosystem values. In earlier chapters, we highlighted those aspects of water law that seek to promote private uses through property law and similar legal mechanisms and those that seek to preserve and protect public uses and values. A wide range of other laws and regulations also govern the use and management of water, aquatic resources, and aquatic ecosystems, the full scope of which cannot be addressed here.
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Chapter 8. Federal Water Interests 88 results (showing 5 best matches)
- Chapters 1 through 5 focused almost exclusively on state water law, and state law is in fact the source of most water law regarding private rights. However, as Chapters 6 (navigability) and 7 (public trust doctrine) detail, there are federal aspects to water law, especially regarding public rights. This chapter further explores the federal government’s water rights and roles in water management.
- Where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law. Where water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude, even in the face of Congress’ express deference to state water law in other areas, that the United States intended to reserve the necessary water. Where water is only valuable for a secondary use of the reservation, however, the arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator.
- Moreover, under Section 8 of the original Public Law (which is how everyone still refers to this provision), federal reclamation projects must get their water rights from the relevant states, pursuant to state water law. In general, states were happy to give these water rights in order to get the reclamation projects and the federal money they involved. Nevertheless, the subordination of federal reclamation projects to state water law remains an important legal facet of the Bureau of Reclamation’s operations. For example, in California, the Bureau of Reclamation’s water rights and hence operations are subject, especially after the Mono Lake decision, to California’s public trust doctrine (see Chapter 7).
- Nevertheless, the Court has since decided that laws restricting interstate commerce to benefit Many states have declared the water within their borders to be the property of the state (or the citizens of the state) and manage that water through permit systems. Moreover, the Court was clearly reluctant to interfere with state water management. Thus, Supreme Court jurisprudence is currently a bit unclear regarding what aspects of a state’s water law would violate the Dormant Commerce Clause, but restrictions on transporting and using the water out-of-state may still be unconstitutional.
- Nevertheless, the second-oldest tribal water rights settlement in the U.S. occurred in the East—specifically, among Florida, the United States, and the Seminole Tribe. After Florida adopted the Florida Water Resources Act to require water rights permitting (see Chapter 5), the State of Florida and the Seminole Tribe experienced a series of conflicts over the Tribe’s water rights for its reservation, which sits in the heart of the Everglades. The 1987 compact among the parties settled both the Tribe’s water rights and its land rights claims. It also allows the Tribe to manage its water free from state control, so long as the Tribe observes several mutually-agreed-upon standards that ensure consistency with state water law and management. For example, the Tribe has to ensure that its new withdrawals do not cause saltwater intrusion or interfere with the rights of other water users. In exchange, Florida guaranteed the Tribe significant consultation rights regarding any land use...
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Chapter 10. The Water-Energy Nexus 74 results (showing 5 best matches)
- Paradoxically, water law and energy law have traditionally operated completely independently of each other, even at the state level. The result has been increasing conflicts between state water law and state and federal energy policies, and between state water law and particular energy projects. These conflicts are likely to multiply in the future as climate change increasingly affects water supply, water demand, energy production, and energy demand.
- So far in this book, we have explored water law and policy largely as if water use exists in a vacuum, independent of other considerations. The rest of the book will look at how the use of water through water law intersects with various other societal concerns—energy, water quality, species, and environmental regulation more generally.
- Tables 10–1 and 10–2 reveal that most forms of electricity generation—conventional or renewable—will need water rights. Thermoelectric power plants and most forms of renewable energy facilities get their water through the standard water rights law and processes of the states in which they sit. Because most of the water withdrawals for power plants come from surface water, this fact means that power plants in the East generally rely on riparian rights or regulated riparianism permits for their water rights, while power plants in the West obtain water rights through prior appropriation permits or, in Colorado, water court decrees.
- Two important issues are emerging at the nexus of water law and energy policy: (1) how to balance water demand in the energy sector with water demands for other purposes, including recreational and ecological purposes; and (2) how to ensure sufficient energy supply to support existing and future water uses. This chapter will explore these issues through a variety of lenses. We’ll first look at water use in the production of energy, which is the side of the nexus where water law is most relevant. This chapter will begin by examining the basic facts about water use in energy production, particularly thermoelectric power generation, before taking a closer look at the law governing hydropower facilities. The second part of this chapter will focus on the energy demands in water use, again presenting some basic facts before looking at a particular case study of desalination for water supply. Finally, we’ll look at how climate change is altering the water-energy nexus, raising new concerns...
- This provision looks a lot like the deference to state water law that Congress included in Section 8 of the federal Reclamation Act, which we discussed in Chapter 8. That would seem to suggest that hydropower dams in navigable waters generally need to obey state laws regarding the use of water and that the relevant state is free to impose any conditions on the hydropower facility that do not directly contradict federal law.
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Chapter 11. The Intersection of Water Law and Water Pollution Control Law 92 results (showing 5 best matches)
- As a matter of law, water quality and water quantity typically are the subject of separate—but overlapping—legal doctrines. Several of the common-law doctrines of water law covered in earlier chapters apply to water pollution as well as water allocation. For example, we mentioned at the end of Chapter 2 that riparian rights often include a right to unaltered (and see Chapter 14), and the same can also be true for appropriative rights. Federal and state water pollution law, which is based largely on the federal Clean Water Act, the state statutes that implement and sometimes expand it, and accompanying state and federal regulatory regimes, increasingly affect or address water quantity issues as courts and regulators are faced with actual conflicts involving the intersection of water quality and water quantity. Moreover, in some states (especially in the East), the same agency implements both the water quality and water quantity regimes, allowing that agency to account for both at...
- As discussed in many of the earlier chapters, water law involves frequent questions about the appropriate roles of the state and federal governments in regulating and managing water resources. Earlier chapters explained that water allocation law basically is within the province of the states, although it is not entirely clear whether that result is required under the Tenth Amendment or other constitutional provisions, or whether it simply reflects a congressional policy determination, particularly in western states when Congress segregated water rights from the land and left water allocation to the policy discretion of the individual states. of federal law on state water law and water resources policy. Those influences include the construction of a massive nationwide system of dams and other water resources infrastructure, and the resulting federal operation of water projects and possession and sale of water rights, as well as the impact of federal regulatory statutes on the...
- Several core concepts distinguish statutory water pollution law, and the federal Clean Water Act (CWA) in particular, from the common-law doctrines governing water pollution. Although a full treatment of the CWA and other aspects of statutory and regulatory water pollution control law is well beyond the scope of this chapter, a basic understanding of the Act and how it operates is necessary to understand the ways in which it intersects with other aspects of water law.
- Thus far, we have dealt mainly with water allocation and other issues regarding water quantity. In many situations, that primary focus of water law suffices to address the relevant disputes. In other cases, however, it is impossible to address water quantity issues without considering water quality issues as well (or vice versa).
- In many respects, water pollution law can also derive significantly from doctrines and principles of state law, especially to the remaining extent that it is governed by state common-law doctrines, such as nuisance or riparian rights. To a very large extent, however, that state law system governing water quality has been supplanted by a system of cooperative federalism driven by the Clean Water Act. The Clean Water Act allows and encourages states to take over its regulatory programs, subject to federal oversight by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (depending on which statutory programs are at issue), and all but four states (Idaho, New Mexico, New Hampshire, and Massachusetts, plus the District of Columbia and most U.S. territories) implement at least some aspects of the Clean Water Act through state statutes and regulations. Again, however, implementation of the federal statutory regime can also have impacts on water quantity and...
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Chapter 5. Moving from the Common Law to Permits 119 results (showing 5 best matches)
- Chapters 2, 3, and 4 provided an overview of the common law governing water rights. All of these common-law systems can work well enough when water supplies exceed demand. However, when people start competing for water, relying on common-law approaches to creating and enforcing water rights can create a lot of uncertainty for both the state water managers and individual water rights claimants. Consider, for example, all of the common-law water rights regimes that are based on sharing a particular water resource—reasonable use-based riparian rights for surface water (Chapter 2) and the two reasonable use rules and correlative rights doctrine for groundwater (Chapter 4). If you were entitled to water based on one of these regimes, would you be confident regarding the amount of water you were entitled to take into the future? What if there’s a drought? What if residential or commercial subdivisions double or triple the number of landowners who also have rights to water from the same...
- The result of continuing to recognize common-law water rights, however, is that all state enactments of water permit systems start with a little bit of chaos, because there has to be some way of incorporating those older common-law rights into the new system. One of the administrative problems with common-law water rights is that they usually don’t require any paperwork or state registration, so there is no official record that they exist. Thus, while water permits give the state comprehensive records of all the new water rights created the state legislature adopts a permit system, at that moment of creation, state water officials may have only the vaguest of notions of how many common-law water rights are being claimed by what users for which waterways and aquifers within the state and for how much water.
- All of the uncertainty issues under the common law become much easier to handle—and require far less litigation—when states define water rights through administrative permit systems. Water permits clearly define for individual users what their water rights are and, generally, how those water rights interact with the rights of other water users. Permit systems also create a public record (originally paper but increasingly electronic) of who has what rights to which water resource. These records both provide notice to future water users of pre-existing rights and allow state water managers to keep track of water resource use, allowing for a more comprehensive understanding of what’s happening with the state’s waters. Records of water use can also form the starting point for state water resources planning, helping the state to meet its future demands for water.
- If you are the state official charged with rationally managing the state’s water resources, this lack of information about who’s doing what with the state’s water can be a significant problem, especially as state populations grow. Moreover, individuals with common-law water rights can still have considerable uncertainty regarding exactly what their water rights are—or whether the new permit holders are actually interfering with those rights. To resolve these lingering uncertainties surrounding common-law water rights, individual states have tended to take one of two paths: general stream adjudications or permit conversion.
- to sort out common-law prior appropriation rights for surface water and, increasingly, for groundwater as well. In a stream adjudication, the state or (sometimes) an individual water claimant uses special processes (defined in the state water law statutes or water code) to join all of the people who claim a right to water from a particular water resource or system into a single court proceeding. The judge then evaluates the validity, quantity, and priority of all of the prior appropriative rights for that resource or system. (If you remember your Civil Procedure, general stream adjudications are essentially the water law version of interpleader—everyone with a claim to the same river or linked water resources is joined in the same legal proceeding, where they and the court hash out everyone’s relative rights to the water.) Assuming that the proceeding meets the due process requirements of notice and an opportunity to participate, all claimants existing at the time of the proceeding...
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Chapter 9. Interstate Water Pollution, Apportionment and Management 82 results (showing 5 best matches)
- The U.S. Supreme Court on appeal determined that the Clean Water Act displaced the federal common law of nuisance. The Court based its conclusion upon Congress’ intent that the Act, rather than federal common law, was to control federal interstate water pollution disputes. thus determined that the Clean Water Act provides the law for interstate water pollution disputes.
- Interstate water pollution disputes like those presented above gave rise to a federal common law of interstate nuisance. However, with passage of the federal Clean Water Act in 1972, the need for federal common law to resolve interstate water pollution disputes came into question. The Supreme Court addressed this very question in and held the 1972 Clean Water Act governs federal law regarding interstate water pollution.
- Nevertheless, the Supreme Court faced several additional issues in deciding whether it could—and should—exercise its original jurisdiction in cases involving water allocation disputes between states, and, if so, according to what principles of law. Whereas it was clear from the outset that original jurisdiction cases could address boundary disputes, the Court found it necessary to explain why its original jurisdiction also applied to water allocation disputes. Moreover, while the Court could draw on the pre-existing law of public nuisance to address interstate air and water pollution cases, it needed to ply new waters in deciding what principles should apply to interstate water allocation disputes, particularly given differences in state water law. Not surprisingly, that challenge was most difficult in resolving a dispute between one state that (at the time) followed the law of riparian rights, and another that pioneered the doctrine of prior appropriation.
- The Supreme Court faced the question of whether the Clean Water Act also displaced state nuisance law in interstate water pollution disputes in Court concluded that Congress had not preempted state tort law—indeed, Congress had explicitly preserved state tort law—when it enacted the Clean Water Act. However, the Court also clarified that the state nuisance law that applies is the law of the source state: If a polluter is not a nuisance under its home state’s law, it cannot be considered a nuisance under another state’s law.
- In the early 20th century, interstate water pollution and allocation disputes gave rise to a doctrine of federal interstate nuisance and equitable apportionment law. While the federal Clean Water Act of 1972 (see Chapter 11) has since displaced federal interstate nuisance law for water pollution, the key concepts and principles of the interstate nuisance doctrine are still relevant to equitable apportionment of interstate waters and may apply to new and emerging issues not yet covered by federal statute, such as the introduction of aquatic invasive species. The following discussions illustrate the rise and parallel development of interstate nuisance law and the equitable apportionment doctrine.
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Chapter 14. Public Interests, Private Rights in Water, and Constitutional Takings Claims 70 results (showing 5 best matches)
- Thus, if a water right holder is trying to do something outside the scope of the water right, like a wasteful or unreasonable use, or if the water right already allows what the government is doing, like maintaining and improving navigation, there can be no constitutional taking. As such, defining the exact scope of a state water right under the relevant state’s law is a critical first step in any water right takings case.
- , and water rights taking litigation in general raise important questions about the governmental and public costs of reallocating water to conservation purposes—water that is fundamentally public to begin with, and for which the original individual water rights holders paid relatively little to acquire the right to use. In this context, it is worth noting that although property owners actually win very few constitutional takings claims, the litigation itself is expensive for governments. Given these public expenses, governments seeking to promote water conservation and public uses of water through changes in water law might be well advised to provide some compensation up front to affected water rights holders, regardless of the constitutional status of the new law.
- Casitas Municipal Water District
- Certification to the state supreme court recently had a significant effect on the Klamath Basin water rights taking claims. As you may recall from Chapter 12, the listing of several species of fish under the federal Endangered Species Act reduced the water available out of the Klamath River and the Klamath Basin for irrigation, especially in drought years. The Klamath River Basin water users filed their takings lawsuit in the Court of Federal Claims in October 2001, claiming that when the U.S. Bureau of Reclamation stopped delivery of water during the drought of 2001, it unconstitutionally took their contractual water rights without compensation. The Court of Federal Claims issued summary judgment in favor of the federal government, claiming that the plaintiff water users had not lost compensable water rights under Oregon law. On appeal, however, the Federal Circuit certified the property rights questions to the Oregon Supreme Court, which accepted the certification. In March 2010,...
- The first step in analyzing a claim of an unconstitutional taking is to define the property right at issue. For cases involving standard real property, this step generally poses little difficulty. Water rights, however, pose several definitional problems. First, almost all states define water rights as a “right to use” or usufructuary right, rather than as a right to particular water molecules. Second, as you learned in Chapters 2, 3, and 4, riparian rights to use surface water differ significantly from water rights created under a prior appropriation scheme, and both types of rights can differ significantly from how a particular state defines a right to use groundwater. Thus, to a far greater degree than is true for land, water rights depend intensely on state law, requiring courts to closely examine state law to define the right.
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Chapter 3. Dealing with Western Water Realities: The Creation and Adoption of Prior Appropriation 77 results (showing 5 best matches)
- Prior appropriation doctrine also tries to make water use more efficient through the “use it or lose it” principle. This aspect of prior appropriation law is designed to make sure that water rights are actually put to beneficial use rather than being held for speculation or in other ways that improperly prevent other people from using the water. States effectuate the “use it or lose it” concept, at least in theory, through either the common-law doctrine of abandonment or statutory forfeiture, or both, depending on the state. Both doctrines provide that if a right holder does not use the water for the intended beneficial use for a prescribed period of time, the water reverts to the state or the public (whichever state law deems to be the actual “owner” of water), allowing other would-be users to appropriate it. However, a right holder can only abandon or forfeit a water right if the water is actually available. For example, if a drought is so severe that juniors are curtailed, they...
- Of course, use of water from a surface source but at a distant location still requires access, and these two new principles of western water law did not abandon the law of trespass. However, if a water user obtains the necessary surface access through contract, easement, prescriptive rights, or otherwise, water law no longer prohibited off-parcel use. Many western states ultimately addressed this issue by granting broad rights of eminent domain to governmental and quasi-governmental water institutions, which developed as a means of pooling resources to build the storage and diversion structures necessary to take advantage of distant and dispersed water use.
- In prior appropriation law, the concept of “first in time, first in right” (in Latin, ) defines the relative rights of competing appropriators in times of shortage. Under this system, those who hold more “senior” water rights—i.e., who began using water from a particular source earliest—are entitled to their full water right before “junior” right-holders receive any water at all. For example, at the height of the California drought in 2015, only people who had water rights on the Merced River dating to before 1858 could take water from that river; everyone with more junior rights was curtailed. Seniors also have the right to prevent juniors (through judicial or other processes that vary from state to state, a process generally known as “calling the river”) from diverting and using water in ways that interfere with senior water rights. This is an unusually powerful and relatively absolute legal right, given the extent to which it can shut down or substantially impair another party’s
- The second, closely related concept distinguishing prior appropriation doctrine from riparianism is that the place of water use is irrelevant. Traditional riparian law allowed water use only on the riparian parcel, although that limitation has been softened to varying degrees, or eliminated, in most riparian states (see Chapter 2). That limitation, designed to restrict or eliminate the degree to which stream flows were reduced and water was diverted from its source watershed, was considered an inefficient luxury in a drier region where alternative sources of water are sparse or unreliable. In prior appropriation states, water can be used wherever it can be put to beneficial use (a concept described in more detail below). This aspect of prior appropriation is also more egalitarian and is designed to maximize the utility of scarce water resources.
- Prior appropriation law provides further incentives for investments in water infrastructure through the “relation back” doctrine, which fixes the priority date at the time when a user initiates the first steps necessary to perfect a water right, rather than the date at which water is first put to beneficial use. This doctrine recognizes that it often takes time to construct and begin to operate structures like canals and pumps necessary to divert water and put it to use. It recognizes further that some water use schemes require phased investment—for example, where farm acreage is brought under cultivation over time rather than all at once. In both cases, the priority date relates back to the date of initial construction, so long as the full development was part of a common plan and so long as the party exercises due diligence in completing the plan in a reasonable and timely way.
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Chapter 4. Allocating Groundwater: The Five Groundwater Doctrines Used in the United States 46 results (showing 5 best matches)
- Based on the discussion of the water cycle in Chapter 1, a logical approach might be to address all issues of water rights through a single, integrated body of water law governing both surface water and groundwater. That is not, however, what most states did. Nevertheless, there are ways in which the bodies of law governing surface water and groundwater intersect, but they do so to varying degrees and in different ways in different states.
- We now have a much better understanding of the connections and interactions between groundwater and surface water. In most states, the traditional separation of surface water and groundwater law remains, but both courts and legislatures are more willing to connect the two in various ways, as described more specifically at the end of this chapter. However, the interconnections between surface water and groundwater also provide opportunities for more flexible solutions to water management as well as the potential for conflicts. For example, through a system known as , excess water can be stored in aquifers during wet years when surface supplies suffice and then withdrawn during drought years. Similarly, water users may trade their surface water rights for new groundwater rights to reduce conflicts among surface water users, to improve surface water quality, and to leave more water instream for aquatic ecosystem restoration and protection.
- It is a mistake, however, to think of groundwater as separate and distinct from surface water. First, all groundwater ultimately is connected to the global water cycle described in Chapter 1, recharged by precipitation and acting as a potential recharge source for streams and other surface waters (see Figures 4–1 and 4–2). Where groundwater is relatively distant from surface water, it can be pumped with no discernible effect on surface waters. However, in aquifers that are closer to streams both laterally and in depth, there is often a close connection between the two water sources. In these circumstances, vigorous pumping of groundwater can deplete surface water sources. Where the water table is above or adjacent to the lower level of a water body, groundwater may recharge the stream. Where the water table is beneath the surface water level, the opposite may be true. As a result, groundwater pumping can affect surface water supplies and surface water extraction can affect...
- The reasons for this artificial separation of surface water and groundwater law are largely historical but at least partially explained by physical differences between the two water sources. Historically, water law evolved in a period during which the physical connections between surface water and groundwater were poorly understood at best. In fact, groundwater hydrology was so poorly understood that one court was prompted to write that groundwater movement is “so secret, occult, and concealed that an attempt to administer any set of legal rules … would be involved in hopeless uncertainty, and would, therefore, be practically impossible.” ...of the riparian rights doctrine would likely have been futile. Likewise, efforts to quantify groundwater allocations by priority under the prior appropriation doctrine were difficult before governments and courts had the knowledge and methodologies to measure and quantify the impacts of groundwater pumping on other users or on the overall water...
- Both the correlative rights and the Restatement (Second) groundwater doctrines are more likely to generate an analysis in which competing groundwater and surface water uses, including the riparian right to enjoy unimpaired stream conditions, are evaluated under an equitable balancing test.
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Chapter 6. Navigable Waters 38 results (showing 5 best matches)
- law governing water allocation and management. However, the federal government also plays a role—sometimes quite large—in water law. Chapter 8 will examine in more detail federal water rights and other federal interests in water. This chapter, in contrast, examines the scope of federal regulatory authority regarding and control over certain kinds of waters—the “navigable” waters.
- Whether a state has title to the submerged lands under navigable waters pursuant to the title navigability test is a question of federal law, and it governs the issue of title as between the state and federal governments. Moreover, as between those two governments, the state takes title to the high water mark.
- However, the fact that the pond was not navigable in fact didn’t mean that it wasn’t a “navigable water” for federal law purposes. Justice Blackmun, joined by Justices Brennan and Marshall, dissented first to point out that the Court had not intended, by virtue of the expansion of navigability to inland navigable-in-fact waters in and its progeny, to eliminate navigability based on the original test of waters subject to the ebb and flow of the tide. Kuapa Pond had always been subject to the ebb and flow of the tide, and so had always been a federal “navigable water” subject to the navigation servitude. The U.S. Supreme Court later affirmed that the “ebb and flow” test remains a viable test of navigability in Second, the dissent disagreed with the majority’s view that the navigational servitude does not extend to all navigable waters of the United States. In the dissent’s view, “ ‘navigational servitude’ extends to the limits of interstate commerce by water; accordingly, I would...
- The final application of the navigability doctrine under federal law relevant to water law is to determine title to the beds and banks of navigable waters. States generally have title the beds and banks of navigable waters, which they hold in trust for the public at large. This title dates either to the time an original state won independence from England, or, for later-admitted states, the date on which the state was admitted to the Union. The Supreme Court’s decision to treat later states equally to the original 13 in this regard is known as the Equal Footing Doctrine, which the Court considers a constitutional aspect of state sovereignty. (While a state-to-be is still a federal territory, the United States holds this title.)
- title to the bed and banks of a waterbody, the boundary lines on the shores and/or banks between it and private citizens is a question of state law. The U.S. Supreme Court established this distinction in that delineating the border between state and private ownership on a waterway’s bank is a matter of individual state law. In general, along the seacoast, the border is the high water mark or mean high tide line. For lakes and rivers, most states use the high water mark or high water line.
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Acknowledgments 1 result
- We would like to thank the last several years of our Water Law students at the University of Utah S.J. Quinney College of Law and the Wayne State University School of Law, who have very much helped to shape how the three of us think about and teach Water Law, and who provided us with their own insights into water law during class discussions. Professor Hall would especially like to thank his research assistant, Sabra Bushey (Wayne Law, ’17).
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Chapter 12. Human Use of Water and Endangered Species 51 results (showing 5 best matches)
- ESA issues have become pervasive in water law. Although, as you might expect, ESA conflicts are more common in the West, where water supplies are already limited and prior appropriation doctrines have (at least historically) allowed users to drain water sources dry, species issues are also emerging strongly in the East. You can get some sense of the breadth of water-species conflicts from the fact that that human use of all of the following rivers, lakes, aquifers, and water systems has generated ESA litigation:
- With respect to water law, Section 7(a)(2) controversies again tend to center on large systems where federal agencies manage water supplies with sufficient discretion so that Section 7 applies. Because federally operated water projects tend to be large and to affect entire watersheds, moreover, these controversies tend to be long running. We will take quick looks at three of these controversies.
- However, it is far more difficult to prove that a water user’s mere withdrawal of water “takes” an ESA-listed aquatic species just by reducing the total water available at that moment. As we have seen, natural flows can vary considerably, and an individual withdrawal might not change environmental conditions or habitat all that much, particularly if the individual water user is taking a relatively small amount of water compared to the total flow.
- Another example of Section 9 litigation focusing on government agencies occurred in Texas. In March 2010, The Aransas Project, a non-profit corporation, sued the Texas Commission on Environmental Quality (“TCEQ”), alleging that it and its officials had violated Section 9 by allowing water rights holders to use water in the winter of 2008–2009, resulting in a “taking” of ESA-listed Whooping Cranes. The U.S. District Court for the Southern District of Texas allowed several water users to intervene in the litigation because it recognized that the defendants’ potential liability under Section 9 threatened the intervenors’ ability to exercise their state-law water rights.
- This chapter surveys the ways in which the federal ESA and water law interact. It begins by examining the ESA’s purposes, then focuses on the issue of how aquatic species can become listed for protection under the Act. Finally, it examines how water use and management can trigger federal agencies’ duties under Section 7 of the Act and the more general “take” prohibition in Section 9.
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Table of Contents 76 results (showing 5 best matches)
Summary of Contents 39 results (showing 5 best matches)
Chapter 2. Riparian Law 71 results (showing 5 best matches)
- There are many policy and practical rationales that support the underlying premise of riparianism. Limiting water use to riparians reduces the pressure and demand on a waterbody, which typically maintains a sustainable level of withdrawals from the water supply. Moreover, proximity to a waterbody makes riparians more efficient water users, because they avoid the considerable waste and expense involved in moving water any significant distance. Riparian landowners also tend to have a more holistic and long-term interest in the sustainable use of the water body, because their riparian interests include aesthetic appreciation, recreational use, and enhancement of property values. Further, the riparian system is less burdensome administratively, at least with respect to the creation of water rights, because water rights are based on established real property law, eliminating the need for an independent system to establish water rights.
- Nevertheless, fitting municipalities into the riparian system presents several challenges. First, cities need a lot of water, which can place large demands on limited local supplies and can lead to the need to obtain water from other watersheds or from groundwater (see Chapter 4). Most riparian jurisdictions employ a watershed limitation, requiring that riparian water users keep the water within the watershed of origin. Cities’ attempts to obtain surface water from other watersheds, therefore, violate this restriction. Second, the overwhelming majority of actual water users in cities are not themselves riparian owners. Because municipal water is not used on riparian land, traditional common-law riparian doctrine would bar the use as per se unreasonable. Third, even if the off-tract use issue is ignored, there is no easy way to classify the reasonableness of each of the many uses that municipal customers make of water.
- In addition to the right of consumptive water use in accordance with the reasonable use rule, riparian landowners also possess the rights to: (i) wharf out and build piers into deeper water; (ii) access the water; (iii) use the entire surface of the water for navigation and recreation; (iv) gain or lose land through accretion and reliction; (v) have and maintain an unobstructed view of the water (in some states); and (vi) receive water of a certain quality. These additional rights must be exercised subject to the principles of reasonable use and often are subject to additional state-law restrictions. However, riparian landowners throughout the United States generally retain these property rights, even if they live in prior appropriation states—one reason that even western water lawyers need to understand riparianism.
- Nevertheless, the riparian system also has several fundamental drawbacks. In particular, the common law makes it very difficult to use water on non-riparian lands. This limitation can be particularly troublesome if water is more valuable to a non-riparian user, which can theoretically cause economically inefficient allocations of the water supply. It also became a problem for many growing cities in the East, which are generally not considered riparian owners for purposes of municipal water supply, even if the city straddles a river. Furthermore, water is considered a public good, and arguably a human right, and thus riparianism also raises questions of fundamental justice and equity by restricting access and use to individuals wealthy enough to own waterfront property.
- Riparian law is the common-law system of private, surface water rights utilized in states east of the 100th Meridian. Although the western states have adopted prior appropriation to replace riparianism with respect to rights to withdraw and consume surface water, most western states continue to apply some aspects of riparian rights, especially those rights directly related to riparian land ownership. Under riparian common law, an owner of land abutting a waterbody is a riparian and has certain rights, including: (1) the right to the continued existence of the waterbody in largely the same quantity and quality; and (2) the right to make reasonable use of the water, subject to the equal rights of other riparians on the same waterbody. Thus, any given waterbody functions as a common resource for the riparians who own property bordering it.
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Chapter 7. State Public Trust Doctrines 68 results (showing 5 best matches)
- The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.
- (a) The state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. This principle, fundamental to the concept of the public trust, applies to rights in flowing waters as well as to rights in tidelands and lakeshores; it prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.
- Next, the court held that the DNR “inappropriately relied on the public trust doctrine for its authority to protect non-navigable land and non-navigable water above the ordinary high water mark.” The court explained that the DNR’s protection of private wetlands above the ordinary high water mark exceeded its constitutional authority. Rather, the DNR may regulate non-navigable wetlands pursuant to its police power to protect property. “There is no constitutional foundation for jurisdiction over land, including non-navigable wetlands, that is not below the [ordinary high water mark (OHWM)] of a navigable lake or stream. Applying the state’s police power to land above or beyond the OHWM of navigable waters—to protect the public interest
- Not surprisingly, American law adopted as its own much of the English law respecting navigable waters, including the principle that submerged lands are held for a public purpose. A prominent example is …, where the Court held that the Illinois Legislature did not have authority to vest the State’s right and title to a portion of the navigable waters of Lake Michigan in a private party even though a proviso in the grant declared that it did authorize obstructions to the harbor, impairment of the public right of navigation, or exemption of the private party from any act regulating rates of wharfage and dockage to be charged in the harbor. An attempted transfer was beyond the authority of the legislature since it amounted to an abdication of its obligation to regulate, improve, and secure submerged lands for the benefit of every individual. While was “necessarily a statement of Illinois law,” ...364, 365 … (1926), it invoked the principle in American law recognizing the weighty...
- As Chapter 6 discussed, a waterway’s status as a navigable water is important for at least two reasons. First, waterbodies that meet various federal-law definitions of navigability are subject to federal regulatory jurisdiction under the Commerce Clause, the federal courts’ admiralty jurisdiction and application of federal maritime law, and the federal navigation servitude. Second, if a waterbody meets the federal-law test for state title navigability (natural navigability in fact at the date of statehood), the state will own the waterbody’s bed and banks. Both aspects of navigability can create public rights in those waterways.
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Dedication 1 result
Title Page 4 results
Table of Cases 30 results (showing 5 best matches)
- Clean Water Rule: Definition of “Waters of the United States, 243
- Environmental Protection Agency and Department of Defense Final Rule; “Clean Water Rule: Definition of Waters of the United States”, 243
- L & S Water Power, Inc. v. Piedmont Triad Reg’l Water Auth., 306
- Michigan Citizens for Water Conservation v. Nestle Waters North America Inc., 69, 77
- Adams v. Greenwich Water Co., 30
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Editorial Board 15 results (showing 5 best matches)
- Publication Date: January 20th, 2017
- ISBN: 9781634603133
- Subject: Water Rights
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: Intended for a general audience, Water Law: Concepts & Insights provides both a general overview of basic water law doctrines and an exploration of how water law—the law and policies governing allocation of water—fit into broader ecological and environmental law issues. The book provides an overview of important hydrological principles before discussing the two state-law systems governing use of surface water in the United States and the five doctrines governing use of groundwater. It then explores the federal government's interests in the fresh waters of the United States, ranging from protection of navigability to federal water projects to federal water rights. Putting the law governing water use into a broader context, Water Law: Concepts & Insights then explores the intersections of state water law with energy policy and production, water quality protections, endangered species protections, and broader watershed management. It ends by returning to the concept of water rights as protected private property rights and the complexities of constitutional "takings" litigation when environmental protections interfere with those rights.