Water Law in a Nutshell
Authors:
Zellmer, Sandi B. / Amos, Adell
Edition:
6th
Copyright Date:
2021
19 chapters
have results for Water law in a nutshell
Foreword to the Sixth 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 the major casebooks in the field, including Thompson, Leshy, Abrams & Zellmer,
- A decision to use water for a particular purpose can have far-reaching impacts. For instance, transporting water from a rural area across a mountain range to a city may provide water to sustain the city’s population, but it may also force a decline in agricultural productivity and the farming community built on it, facilitate more rapid growth in the importing city, prevent future development of the exporting rural area, curtail recreational opportunities, make sewage treatment more difficult as streamflows to dilute wastewater discharges are diminished, deprive the exporting area of groundwater recharge, and cause ecological changes in both areas. Balancing these conflicting interests and demands is made ever more complex, challenging, and essential in the face of chronic drought cycles intensified by climate change.
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Chapter Three Prior Appropriation 295 results (showing 5 best matches)
- Private rights to use water cannot be acquired in all types of water. State law may exclude certain waters from the allocation of private rights. Such provisions may describe waters of a “natural stream” as being “public property” or subject to appropriation, or they may exclude certain types of waters (such as runoff or seasonal floods) from the reach of private water rights. State law may also recognize greater or lesser private rights in various types of water ( groundwater) and define the extent to which such waters are subject to public use.
- Appropriation of water began several years before statehood in most western states. Miners developed relatively uniform customs for water appropriations, and these were incorporated into the common law of water rights by the early territorial and state court systems. A miner’s right to get water depended upon two acts: posting notice at the point of diversion and diverting the water to apply it to a beneficial use.
- State and federal law treat permission to divert and store water as distinct from permission to construct and maintain the physical works. In order to maintain a storage reservoir, a person or organization must secure a storage water right under state law and also secure the relevant permits and permission to construct and maintain the dam facilities either under state or federal law depending on the size and location of that facility.
- The rule allowing recapture and reuse of reclaimed water on the original land can result in more efficiency, but it can also result in more water being consumed. For instance, if a water user is consuming less than the permitted amount of water and plants a more water-intensive crop or puts in a more efficient irrigation system, most or all of the water that had previously been returned to the stream might be consumed. This can deprive other appropriators of water on which they depend, but it is allowed since it is technically within the terms of the original appropriation. . Being able to recapture and reuse water on the land benefited by the original use provides a substantial advantage for irrigation districts or federal water projects having extensive geographic scope. (federal reclamation project in the Columbia River basin retained the right to recapture waste, seepage, and return flow throughout project area). To encourage more efficient water use, a few states ( ...laws...water
- Area of origin legislation often attempts to safeguard present conditions, including established water rights and streamflows for fish and wildlife. Some laws attempt to provide for future development in the area of origin, but in practice it is difficult to quantify future needs. California allows transbasin diversions subject to the right of the area of origin to appropriate the water when it is needed, with an absolute priority over the exporter. California also protects the county of origin’s ability to develop water that may be necessary in the future. Watershed Protection Act, Water Code §§ 11460–11465; County of Origin Protection Act, Water Code § 10505; Delta Protection Act, Water Code §§ 12201–12205; and Protected Area Act, Water Code §§ 1215–1222.
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Chapter Six Diffused Surface Waters 44 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, are waters that have not yet joined a distinct watercourse. The law treats diffused surface water separately from surface water in watercourses.
- When dealing with diffuse surface waters, 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 more arid climates, 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. States vary as to whether they include diffused surface water within their water law allocation systems. The approaches are described below, followed by a discussion of rainwater harvesting.
- State law defines which waters are within the definition of a “watercourse” for purposes of the allocation system in the states. In general, states exert authority over “natural watercourses.” A natural watercourse is usually defined as a body of water flowing in a defined channel with a bed and banks. . In both Texas and Kansas, a watercourse exists when there is a defined bed and bank, a current or flow of water, and a source of supply sufficient for irrigation use. . In Indiana, a watercourse is not defined by whether there are beds and banks, but rather by whether there is a substantial existence, unity, regularity, and dependability of the water’s presence or movement on a distinguishable course. (including flowing rivers as well as “self-contained” lakes and hydrologically connected aquifers). Most states require water to be present for a substantial portion of the year in order to qualify, but some states consider dry streams or lakebeds to be “natural watercourses.”
- The common enemy rule, with its roots in English common law, provides that landowners may take any action necessary in order to avoid diffused surface waters without liability for resulting damage to one’s neighbor. Such actions include building a barrier to water flowing down from adjoining land, such as a dike along one’s upper boundary, or altering natural drainage patterns by a system of berms, ditches, or pumps to keep it out of a basement or away from a field. The doctrine may also allow development of drainage systems to augment natural drainage. Excavations may be made for drains and channels to collect and divert flows or accumulations of water. . The only limitation is that one may not store surface water (as in a dam or reservoir) and then “cast it” upon another.
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Chapter One Overview and Introduction to Water Law 43 results (showing 5 best matches)
- The study of water law is, at one level, the study of property concepts, though rights to use water are peculiar. The fact that water is a moving resource necessarily limits the appropriateness of traditional concepts of ownership. Although water laws differ widely, notions of substantial public rights in the resource is a major theme across allocation regimes and throughout history. One result is that lawmakers have superimposed administrative systems in an attempt to regulate private interests in the use of water and to advance the broader public interest. Accordingly, the study of water law in the modern era requires a deep understanding of state and federal administrative law.
- The field of water law also includes a study of the legal process. In many areas, the law is well-developed and it changes only slowly and at the periphery, but water law is a comparatively dynamic field. It illustrates how courts, legislatures, and agencies create and alter law according to physical and societal stimuli: one set of conditions drove the initial development of water law in the eastern United States, but different circumstances provoked changes in the West.
- The United States is involved in activities that sometimes affect, and because of federal supremacy, preempt state water law. In the first sixty or seventy years of the twentieth century, the federal role in water resources involved giving technical and financial support to states and managing large federal water development projects for navigation, flood control, agriculture, power generation, and other uses. Since the 1970s, the federal government’s involvement with water has turned away from development and become more focused on environmental regulation. Today, federal laws that protect endangered species, wetlands, and water quality are at least as important as state water laws in shaping water development and use. These laws are covered in Chapter 7.VI and in other locations throughout this book.
- 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.
- Early court decisions in the West recognized water rights based on the miners’ customs. The system worked satisfactorily for farmers, too, and became entrenched in the laws of virtually every western state. Rights, then, belong to anyone who puts water to a “beneficial use” anywhere (on riparian or non-riparian land), with superiority over anyone who later begins using water. Unlike riparian law, the development of water rights depends on usage and not on land ownership. Once a person puts water to a beneficial use and complies with any statutory requirements, a water right is perfected and remains valid so long as it continues to be used.
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Chapter Ten Water Institutions and Equity 90 results (showing 5 best matches)
- Water organizations come in many different forms, and much of the private practice of water law involves representing these entities. Understanding their legal authorities, which can include the authority to condemn land and water, tax local property, and issue tax-exempt bonds to fund operations and infrastructure, is essential. Moreover, when an individual is part of a water organization, the individual typically does not hold the water right. Rather the water entity holds and manages the water right on behalf of, or in service to, those that are part of the organization.
- In Colorado, the Colorado Water Quality Control Commission promulgates water quality standards under the Colorado Water Quality Control Act and assists in administering pollution control measures. The Colorado Division of Water Resources (DWR), also known as the Office of the State Engineer, administers water rights, represents Colorado in interstate compact proceedings, monitors stream flows and water use, approves construction and repair of dams, and maintains databases of Colorado water information. By comparison, the Colorado Water Conservation Board engages in joint federal-state water project and water use planning and is involved in financing irrigation projects, while the Ground Water Commission determines rights and regulates water use in designated groundwater basins. For details,
- State regulatory bodies engage in the administration of water laws, including permitting requirements for water withdrawals, rate-setting, water supply planning, maintenance of water quality and conservation initiatives. These entities include state natural resources districts, state engineer offices, water resources departments, and local groundwater management districts. It is common for the water allocation function and the water quality function to be separated into different agencies, which can create challenges for managing these two fundamental aspects of water resources. In each state the exact names and jurisdictional scope of the various agencies may differ. The key to understanding the dynamics of water allocation and management within any given state often lies in first mapping the inter-relationships of the state agencies. A few examples are provided below.
- In the 1990’s, California passed a law requiring developers to show sufficient water supply for their 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 law also restricted local cities and counties from allowing developers access to construction permits unless sufficient water was available.
- While much of the study of water law involves the rights of individuals who obtain their water directly from surface or groundwater appropriations, the majority of domestic and commercial users, as well as a significant number of agricultural users, receive their water through a public, quasi-public, or private water institution. These range in size from small, local water delivery companies to large federal and state agencies. Examples include the Metropolitan Water District in Los Angeles, California, the Southern Nevada Water Authority headquartered in Las Vegas, Nevada and the for-profit American Water headquartered in New Jersey with offices in 15 states. One or more agencies may be involved in the process of getting water from its source to the end user’s tap, from water collection or extraction, transportation, storage, and treatment to distribution.
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Chapter Two Riparian Rights 129 results (showing 5 best matches)
- 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 a 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 is often established later in time in the priority system. Regulated riparian law seeks to remedy some of these challenges.
- 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.
- The arid landscape resulted in the early miners developing their own customary law that recognized the right of individuals to divert water to mines that were not riparian to the water source. Access to water became an issue of timeliness, rather than location. This developing western customary law allowed anyone to divert water on a “first come, first served” basis, as long as they did not deprive “prior appropriators” of the quantity of water they were already diverting for themselves. Chapter Three. While some western states initially adopted riparian rights, many eventually phased them out. The few “hybrid” states that preserved pre-existing riparian rights still apply riparian law in certain situations.
- The Institutes of Justinian, published in 533–34 A.D., held that running water was a part of the “negative community” of things that could not be owned, similar to the air, seas, and wildlife. At the same time, it was recognized that such things could be used through so-called usufructory rights, a legal principle of water law that survives today. “Usufruct” is the right to use the advantages of the resource without over-exploitation. In modern U.S. law, water rights are referred to as usufructory rights—rights to use without altering the fundamental nature of the resource. The Institutes declared that the right to use water belonged only to those who had access to the water by virtue of their ownership of riparian land. Others could not gain access without committing a trespass, unless the stream was on the public domain. This doctrine was codified in France in 1804 with the promulgation of the Napoleonic Code.
- 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.
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Chapter Four Hybrid Systems and Other Variations 75 results (showing 5 best matches)
- Water law in Hawaii is characterized by the principle that water, in its natural state, is part of the state’s public trust. Hawaiian law has its roots in an ancient system of land tenure. During Hawaii’s territorial period, courts dealt with water as an individual property right but they 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 issue of whether the Desert Lands Act extinguished all riparian rights on federal lands patented after March 3, 1877 was before the U.S. Supreme Court in . An Oregon landowner, whose property bordered on a stream, claimed riparian rights based on an 1885 land patent, predating Oregon’s statute subjecting all water in the state to appropriation. The Court had previously upheld Oregon’s interpretation of the Desert Land Act in , 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. ...an...in
- With respect to municipal rights, in a few places in the Southwest, communities and cities may assert pueblo water rights arising from land grants and principles that were applied by predecessor Spanish or Mexican governments. Similar to the ancient Hawaiian system, pueblo law characterizes water as communal property. Pueblo communities employ a waterseer to protect water rights. In California, the waterseer is called a zanjero and is typically appointed by a government official. In New Mexico, the position is called a majordomo and is typically elected.
- Shortly after the decision in , the California Supreme Court acknowledged the continuing viability of the riparian doctrine as between bona fide settlers and appropriators subsequent to settlement. In , as in , the parties were all on the public domain. The defendant, however, had settled on a tract contiguous to a stream under the public land laws so was not a trespasser on public land. The defendant did not start using water until after the plaintiff had put water to use downstream to supply a nearby town. When the defendant later started diverting water, the downstream user sued, claiming it had a valid prior appropriation. The court held that the defendant had settled under federal laws and was the absolute owner as against all but the United States. Thus the defendant was entitled to riparian rights, subject only to the rights of appropriators who diverted water prior to the time he claimed his land. From these two cases, the California rule emerged—between appropriators on...
- 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 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 users must have permits and the common law is largely supplanted once an area is designated as a water management area, triggering the statutory requirements.
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Acknowledgments 3 results
- Adell Amos also extends her gratitude to David Getches for years of dedication to teaching and advancing the field of water law. She would like to thank Jill Elizabeth and the Environmental and Natural Resources Law Center, particularly Emily Johnson. She dedicates this version of the Nutshell to Oregon law students and her own children who have all been students during the COVID-19 global pandemic. Their resilience and dedication to keeping their communities safe served as inspiration every day.
- 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 Montana School of Law for its summer scholarship stipend and Katherine Miller for her outstanding research assistance.
- Both authors are grateful to the Rocky Mountain Mineral Law Foundation for providing a research grant to complete the previous edition of this project.
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Chapter Eight Federal and Indian Water Rights 111 results (showing 5 best matches)
- the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit.
- In either case, reserved water rights are defined by federal rather than state law. State-based water rights in the western United States are established and exercised based on the priority of when water is first put to a beneficial use. By contrast, reserved rights hold priority dates no later than the date of the reservation, even if those claims have not been previously recognized or enforced under state priority systems. These federal rights, once established, may be senior to existing state-based water rights. Moreover, principles of state law, such as diversion, beneficial use, and forfeiture, do not apply to reserved rights. Despite their basis in federal law, however, reserved rights may be quantified in state general stream adjudications under the waiver of sovereign immunity in the McCarran Amendment. Some of the most controversial issues arise at the interface of state and federal law where quantification, adjudication, and administration of a water rights decrees are at...
- Many of the lands that were distributed through allotment were conveyed to non-Indian owners. A non-Indian purchaser of an allotment obtains a right to use a share of the tribe’s reserved water with a priority date as of the creation of the reservation provided there has been reasonable diligence in putting the water to use. These so-called rights have been criticized as giving allotment purchasers an advantage over their neighbors whose lands were homesteaded; they obtain rights superior to most other private water users. This disrupts state law water allocation schemes, provides an incentive to transfer tribal lands to non-tribal members, and divests tribes of their reserved water rights in a piecemeal fashion without congressional authorization.
- Ideally, in a prior appropriation system, the priority dates and quantities of everyone’s rights are known so the water basin can be efficiently and effectively administered. This information, together with information on annual and seasonal flows, enables water rights holders to predict how much water may ordinarily be diverted. In reality, the kind of perfect information about water rights, priority dates, precise quantitates put to beneficial use and other details are rarely known, even without the added dynamics of federal reserved water rights. Incorporating reserved water rights into state water law schemes presents unique challenges. First, the rights impliedly reserved are not quantified unless there has been an adjudication. Second, historically, holders of reserved rights, the United States and Indian tribes, were immune from suit by virtue of their sovereign status, frustrating state efforts to adjudicate their rights or to regulate their water use. Third, if the reserved...
- water available to non-Indian water rights established under state law with a later priority date. Often the priority dates for tribal claims predate many of the state law-based claims. Moreover, Indian reserved rights cannot be extinguished except by express language, 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 Indian reserved rights creates a tension for water resources management. In response to this tension, many states gave initiated comprehensive general stream adjudications, where tribal water rights claims are addressed through litigation or negotiated settlements between the tribe, federal government, and the state, among others (discussed in Section IV of this chapter).
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Chapter Nine Interstate and International Allocation 85 results (showing 5 best matches)
- Where individual water users in one state attempt to prevent interference with interstate waters by individual water users in another state, substantial differences in the respective state laws can make it difficult to determine rights. For instance, if a downstream state follows riparian law and an upstream state follows appropriation law, can an individual in the downstream state insist on unimpeded flows, thereby defeating the established uses of upstream appropriators? It is theoretically simpler, however, to integrate priorities of water users on a stream that crosses state lines when both are appropriation states. In an early case, the Supreme Court presumed that disputes among such users would be resolved by priority, as if no state boundary existed. . 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 Congress conveyed public lands...
- 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.) The Secretary is empowered to allocate waters in times of shortage by any reasonable method, although “present perfected rights” must be satisfied.
- In , the Supreme Court invalidated a Nebraska statute that restricted groundwater exports to only those states that gave reciprocal privileges to Nebraska, finding it unconstitutional on its face. The
- Interstate compacts effectuate a variety of objectives by mutual agreement of two or more states. Compacts relating to interstate waters have been formed to allocate water between the states, but also to address issues involving storage, flood control, pollution control, and comprehensive basin planning (principally by joint federal-state compacts). Although the first interstate water allocation compact was adopted in the arid West in response to a dispute over the Colorado River, compacts have been used to settle conflicts in the East and the South as well (the Delaware, the Potomac, and the Susquehanna River Compacts are notable examples). Compacts have an advantage over adjudication in that compacts avoid the justiciability problems encountered when the stream system in question is not yet over-appropriated. A compact allows parties to allocate unappropriated water, thus making a present appropriation for future use. The ability to make such determinations in advance is crucial...
- The 1922 Colorado River Compact among the seven states touching the river required the upper and lower basin states to contribute equally to any future obligation to deliver water to Mexico. The 1944 treaty between the two countries allocated to Mexico a guaranteed annual flow of 1.5 MAF of Colorado River water, to be reduced in the event of a serious drought in the U.S. Negotiations were concluded in haste, and several troublesome ambiguities were glossed over. Most notably, the treaty said nothing about water quality. Later, upstream development caused the river’s salinity to increase as more water was consumed and large dams and storage reservoirs were created; less water in the river also meant greater evaporation from storage reservoirs and greater concentrations of salinity. Irrigators added to the problem by returning waters with high concentrations of dissolved solids.
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Copyright Page 5 results
- Nutshell Series, In a Nutshell
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Chapter Five Groundwater 143 results (showing 5 best matches)
- 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 . 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.
- Generally speaking, commingling stored and naturally occurring groundwater does not cause the stored water to lose its separate identity. . In California, underground storage constitutes a beneficial use,
- 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 (sometimes referred to as 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.
- As water tables fall, progressively deeper wells are required, resulting in increased drilling and pumping costs. Entities such as municipalities and large farms may enjoy economies of scale, enabling them to pump from great depths. In contrast, small irrigators are caught between high pumping costs and comparatively low economic return per unit of water applied. For an irrigator, the cost of pumping an acre-foot of water may be close to the benefit from an acre-foot of water applied to crops. Slight increases in cost can render further pumping uneconomical.
- States have taken varying approaches to conjunctive use management. In New Mexico, a senior stream appropriator may be able to “follow the source” to get a more reliable supply by sinking a well to tap water flowing under the stream. In , a senior water right holder who was unable to divert sufficient surface water because groundwater pumping had diminished surface flows sought to drill a well in the alluvial aquifer supporting the stream. The court held that the supplemental well used the same water from a deeper source, so it had the original surface priority rather than a more recent priority as of the time the well was drilled. source” rule was held to allow surface appropriators to tap a deep aquifer that partially fed a shallower aquifer connected with the river. . The factual question is whether the same, hydrologically continuous aquifer that feeds base flow to the source of the senior’s surface appropriation provides water to the juniors’ wells. ...Mexico law allows the...
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Chapter Seven Navigable Waters 130 results (showing 5 best matches)
- The federal government continues to play a significant role in water resources management through its primacy in matters concerning navigation, water development projects, public lands management, regulation of water quality, and protection of endangered species. As the federal role in water resources management has grown, so too have tensions between state and federal sovereignty. Conflicts tend to be especially acute in the western states because of water scarcity and the concentration of federal lands there.
- 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. . In , 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.
- Federal dams can dramatically affect the flow of streams, disrupting state water allocation. Although conflicts usually involve state-sanctioned water rights, 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.
- As for the beds of non-navigable waters, title usually passed from the federal government to riparian landowners. However, 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.
- Waters within state boundaries are generally allocated according to state and local laws absent some preemptive exercise of congressional power. In 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. to exercise its power to displace state law.
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Outline 131 results (showing 5 best matches)
Center Title 2 results
Title Page 5 results
Table of Cases 143 results (showing 5 best matches)
- ‘Īao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications, In Re, 317
- Water Rights of Colorado Water Conservation Bd. in the San Miguel River, Application for, 86
- Environmental Law Fnd. v. State Water Res. Control Bd., 141, 255, 317
- General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn I), In re, 375, 379, 382, 383
- General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn III), In re, 379
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Index 81 results (showing 5 best matches)
West Academic Publishing’s Emeritus Advisory Board 16 results (showing 5 best matches)
- Joanne and Larry Doherty Chair in Legal Ethics & Professor of Law, University of Houston Law Center
- John Deaver Drinko/Baker & Hostetler Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Dean and Joseph L. Rauh, Jr. Chair of Public Interest LawUniversity of the District of Columbia David A. Clarke School of Law
- Robert A. Sullivan Emeritus Professor of Law
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
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- Publication Date: May 13th, 2021
- ISBN: 9781640204140
- 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 this book an excellent aid for students in any water law course. The revised edition deals with changes in evolving areas like groundwater-surface water conflicts, public recreational uses, instream flow protection, federal water development, takings claims, and water access and equity.