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Water Law – Outline
I. Riparianism A. Basics 1. ~29 states 2. Qualities: a. Riparian land (right runs w/ land) b. Right to use water i. Absolute – domestic / natural – basic uses of landowner essential for life ii. Unreasonable per se – any use off the property iii. Reasonable – size of water body, nature of water body, custom, other uses 3. England a. Right to land & water = right to quiet enjoyment b. Most disputes were 2-party disagreements 4. Natural flow broke down w/ waterwheel usage – gave way to reasonable use riparianism 5. Northeastern U.S. – occupancy rule – preference to 1st person to invest in waterway ~ prior appropriation B. Reasonable Use 1. Rejection of occupancy rule & natural flow – not in public interest – allows monopoly (Martin, p. 40) 2. Reasonable use language started worming into cases, limiting natural flow (Tyler) 3. Basic reasonableness factors: (first spelled out in Snow, p. 42 – tannery refuse v. mill) a. Nature of stream b. Suitability of use to that stream c. Nature of inconvenience to downstream users d. Cost/benefit of downstream v. upstream uses e. Possibilities of users slightly changing uses 4. Must maintain usual flow of water – can’t cut off flow to fill mill pond (Mason, p. 45) 5. CT factors: a. Equal opportunity of riparians b. No owner can hurt another c. Character & capacity of stream d. Foreseeable shortages & apportioning them in manner to secure fair appropriation & benefit e. Customary practices 6. 20th C developments ↓ 7. Water allowed for non-riparian lands w/ irrigation – major change – no natural limit on water (Pyle, p. 47) 8. Not all beneficial uses are reasonable a. Ex: harvesting gravel from river is not reasonable – upstream muni can reduce flow (Joslin, p. 53) 9. Restatement factors: a. Purpose of use b. Suitability of use to watershed c. Economic value d. Social value e. Extent & amt of harm f. Practicality of avoiding harm (Snow) g. Practicality of adjusting quantity of water used (Snow) h. Protection of existing values of uses i. Justice of requiring user causing harm to bear loss 10. Factors are difficult to apply & assess what the outcome will be C. Modern Issues 1. Municipal Supply a. Pure riparian system must use water on riparian land – many munis got water from wells b. East coast cities – saline problem w/ water table
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c. Courts defer to agencies – expertise, predictability – statute favors domestic (Williams, p. 83) d. Corps administers water statutes – ct defers to them (NC v. Hudson, p. 89) 2. Modern System a. Regulated riparianism statutes b. Benefits: state can divide water, maximize benefits – quantifies rights – proactive planning c. Ideal scheme: assess needs, prioritize, divide water, issue permits d. Regulated Riparian Model Water Code i. Water – owned by State, in trust for public ii. Preserve minimum flows iii. Don’t have water right until you get permit iv. Permit – amt, place, time period, use v. Reasonableness = doesn’t cause unreasonable injury = social utility OR cost vi. Priority – human consumption & sanitation, livestock & crops, maximize reasonable use e. Virginia Statute – really permitting statute for new users during shortage times f. Connecticut Statute – first version flopped – passed a new one, w/ in-stream flow standards g. Drainage – common enemy rule – can’t cast it, in a body, upon neighbor (Argyelan) 3. NYC Water Supply a. NYC has to leave certain minimum flow in DL River for NJ b. DL Basin Compact – agreement btw 4 basin states – comprehensive water use plan c. Drought plan developed, including watches / warnings at certain levels d. NYC trying to strong-arm landowners in Catskills to keep water clean – prevent NYC from filtering it II. Prior Appropriation A. Basics 1. Geography – arose in response to scarce water in West – need it for irrigation – water mostly from snow 2. History a. Mexican system – water is public resource, allocated according to public necessity b. Mormons – irrigated communal land c. Miners applied land claim law to water – first in time, first in right – divert & apply it d. Irrigation outstripped mining as primary use of water w/ settlement of West 3. Details: a. Acquire right: take water, apply to beneficial use w/ due diligence b. Location – use it anywhere you want, as long as not wasteful c. Must use it – can’t hold for future use or resale d. Date of priority – when you begin taking steps to divert water – to perfect, must work w/ due diligence e. Dispute – must prove all elements of your right & seniority f. Value – depends upon: seniority, time of withdrawal 4. Criteria: a. Unappropriated water b. Natural stream (states vary re lake water) c. Diversion (must keep diverting & using – in-stream flow rights are controversial) d. Beneficial use (w/o waste) 5. CO twisted statutes to support appropriation, due to necessity of water in region (Coffin, p. 335) 6. CA says patentees of fed govt. before 1866 inherited riparian rights from fed (Lux, p. 342) a. Pre-1866 patentee has priority v. appropriator B. Unreasonable Use & Waste 1. Don’t need advanced method; can use custom; but only get original water if upgrade (Erickson, p. 168) 2. Water right = water for beneficial use + transportation loss 3. Court can determine water used with a newer technology – upgrade or reduce use (Grimes, p. 173) 4. Can’t save water & sell another user your excess – that is wasted water to which you don’t have a right C. Modern Withdrawal 1. Cities can put their effluent to reasonable use (Long, p. 201) 2. Must have firm plan for use to build reservoir (Curtis, p. 207)
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3. Need actual use & purchaser identified in permits to build reservoir (Delta p. 223) 4. Must show that use is in public interest (Shokal, p. 227) 5. Regulation taking water for public use – OK ct said physical taking – Prof disagrees (Franco-Am, p. 366) 6. Permitting a. Must get permit, then pursue diversion w/ due diligence b. Separate criteria for large v. small diversions c. Public interest standard for granting permits d. Can’t get permit until you have firm & fixed uses & users (Central Delta Water Agency, p. 223) D. Water Markets 1. Under pure prior appropriation, no protection for area of origin – water belonged to state 2. Need permit to change: location of diversion, time of diversion, location of use, use 3. Changes subject to no-injury rule 4. Pros: a. Less bureaucratic costs, greater efficiency of use b. Less incentive to waste water – can sell off excess 5. Cons: a. Market problems: hoarding, distribution, might over-rely on imports b. Theoretical: normative (water can’t be commodity) – economic (market can’t capture all externalities) 6. Beneficial use requirement would go away 7. Prior appropriators wouldn’t necessarily be able to block other users 8. Water rights transferable, but need specific plan (quantity of water, use) (High Plains, p. 276) 9. Area-of-origin restrictions a. Public interest (transferring from ag to ski resort is not – Sleeper, p. 295) b. Higher taxes on inter-basin transfers c. Some states (NE) prohibit inter-basin transfers 10. MT had water leasing statute – open market for set amt of water – but never took off III. Groundwater A. Doctrines (most states bleed them together) 1. Capture a. English rule b. Only retained by TX c. Any overlying landowner can withdraw as much groundwater as he wants 2. American reasonable use a. Use must be on overlying tract (land above aquifer in question) b. Similar to capture, but off-tract use prohibited 3. Correlative rights a. Purest form – CA b. Off-tract uses permitted, but subordinate to overlying use c. Water shared equitably btw overlying landowners d. If leftover water, prior appropriation handles off-tract uses 4. Restatement of Torts a. Groundwater users liable to harm to other users, if they unreasonably lower water table 5. Prior appropriation a. Divert water, withdraw from groundwater, and put to beneficial use b. Priority determined at time when you developed water right c. Not great fit for groundwater – about 13 states use it d. Every junior user impacts senior rights 6. Permitting – many exemptions – usually only apply where groundwater is over-allocated B. Cases 1. Under reasonable use, can’t pump 500,000 gpd from 1 acre to use for City (Martin, p. 423) 2. Correlative rights still requires beneficial use (Katz, p. 429) 3. Restatement might require City to pay to dig user’s well deeper, if City lowers water (McNamara, p. 433)
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C. Modern Groundwater Management 1. Permitting a. Varies widely from state to state b. AZ – prior appropriation for surface – reasonable use for ground c. Permits are static when granted – much work around each other at renewal (Harloff, p. 445) i. Ct deferred to Water District – they have info, expertise, do it daily ii. Misses opportunity to plan for future 2. Conflict – permits v. existing rights a. Scope of water right can be changed by legislature – takings works at margins (Bamford, p. 450) 3. Interaction w/ surface water a. NM groundwater requires that taking of water won’t impair existing rights from that source i. But “that source” is interpreted to include surface water (Reynolds, p. 456) b. NB – correlative rights: ground – prior appropriation: surface i. Restatement – ground liable to surface, it directly & substantially interferes w/ surface c. Season shortfalls can sometimes be solved by managing ground & surface together 4. Well interference a. Well’s cone of depression causes problems w/ nearby wells b. If prior appropriation, senior might’ve been unreasonable in having shallow well c. Might (or might not) be cheaper for deeper well to pay others to dig deeper, or use alternate source d. Correlative rights + preference for domestic = deeper well pays to deepen home users (Prather, p. 472) e. Idaho – reasonable depth to dig well, but doesn’t apply to domestic users f. Rules & statutes don’t help much, if dispute is btw two irrigators g. Some jurisdictions have well-spacing rules, others place burden on high-volume pumps 5. Groundwater mining a. Can decide how long water should last & divide up btw users (Texaco, p. 479) b. CO – prevents lowering water table beyond reasonable economic limits – look w/in 3 mile radius c. ID – used to prohibit depletion entirely – now, ok, if in public interest & can bring supply up in future d. OR – groundwater depletion must be prevented w/in practical limits e. AZ – statute to reduce withdrawal to recharge rate IV. Navigability, Public Trust, Public Rights A. Public Resource 1. Navigability – elastic – factually: changes over time, depends upon boat – legally: depends upon test 2. 13 original colonies inherited titles to beds of navigable waters from the King 3. States inherited title in trust for the public 4. Classic test – used, or susceptible of being used, as highways for commerce (Utah, p. 525) 5. Ordinary high water – river bed under state’s title – subject to public use & fed navigational servitude 6. State holds title to waters that are not navigable, but subject to tide (Phillips Petroleum, p. 527) 7. Riparian rights – rules to resolve disputes – give way when govt. gets involved (Willow River, p. 541) 8. Navigational waters has fixed meaning – look at water in natural state (Kaiser Aetna, p. 546) B. Public Access 1. Waters that might not meet navigability test, but still have public access 2. Two ways at this: state law navigability, state constitutional provisions 3. Public easement – susceptibility for recreational boating (McIlroy, p. 554) 4. For private streambed, public only has right to boat – no anchoring or fishing (Douglaston Manor, p. 561) 5. If lack is land-locked by private landowner, no public access (Bott, p. 564) 6. Theory a. If river navigable for particular purpose, public servitude exists & public can access for another purpose b. Most western state constitutions – waters owned by state for public, subject to appropriators 7. Riparian owners – can access entire water body for recreation a. But can’t unreasonably burden the water: lowering level, pollution, traffic (Thompson, p. 577) b. Even state can’t buy access point and unreasonably use the lake (Botton, p. 585) C. Public Trust Doctrine
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1. Source – English CL – Crown owned navigable waters & land beneath them – colonies inherited them 2. State can’t divest entire interest for private entity – inconsistent w/ public trust (Illinois Central RR, p. 591) 3. What’s protected? – navigation, commerce, fishing ( historical uses) 4. Limits – transferring property to private grantees, putting lands to use inconsistent w/ purposes 5. Permit decisions might implicate public trust 6. Can walk on shore (below high water mark) – need to access water to fish, etc (Glass, p. 592) 7. Mere title to tideland doesn’t exclude landowner from building dock to water (Marks, p. 598) 8. Varying approaches (goals & re transferability) a. CA, broadly – includes ecological – public needs change over time b. ME, narrow – navigation, fishing, hunting c. Michigan, middle – classic goals, interpreted flexibly 9. Public trust applies to non-navigable streams, if they effect navigable waters 10. Narrow power to transfer – public trust is separate & narrower than state’s permitting 11. Public trust has independent existence, apart from water code (National Audubon, p. 610) V. Federal Reclamation A. Process 1. Each individual project authorized by Congress 2. Purposes: irrigation, muni supply, hydropower, recreation, env. conserve., flood control 3. Govt. gets property rights – purchase, condemn, appropriate 4. Govt. enters Ks w/ irrigation districts, who make Ks w/ irrigators B. Acquisition – where it doesn’t conflict w/ fed, Bureau must comply w/ state law in acquisition (CA, p. 753) C. Property rights in the water 1. Not all stored water is “project water” – project water = specifically developed for the project 2. Terms of contracts can affect property rights 3. U.S. holds title to the project water 4. Beneficial right to water belongs to District, more likely irrigator 5. K btw District and irrigators can be changed w/o U.S. 6. Reform a. Districts renegotiated Ks at higher rates b. Enlarged area to 960 acres – leased land could be irrigated c. Allocated 800 acre-feet of water, back into rivers 7. Govt. can change terms of the Ks with the Districts, under sovereign acts doctrine (Madera, p. 779) 8. Sources of law: fed reclamation, state law, K w/ Bureau – U.S. ok, if some water (Klamath, p. 788) VI. Interstate Apportionment A. Colorado River Basin 1. Basin dispute resolution: equitable apportionment, SC; Congress, Com Cl; interstate compact 2. Users: Denver, LA, Southern CA irrigators 3. Compact – divides into Upper & Lower – 7.5 maf/year must get past Lee’s Ferry 4. Boulder Canyon Proj. Act – Dept. of Int. doles out project water – AZ didn’t want to give up water claims a. Act is default rule, if states don’t reach a deal – half to AZ, half to CA (AZ v. CA, p. 821) b. Tributary water – separate – isn’t surplus to River water c. Sec. of Int. allocates water during shortages 5. CA – Salton Sea endangered species, seepage to Mexico, Imperial Valley resistance 6. CO – not using full apportionment 7. AZ – withdrawing & storing water – not clear beneficial use 8. Congressional apportionment – used in Boulder Canyon Project Act – hard for C to act w/o agreement B. Interstate Compacts 1. Practical effect – compact must become fed law – supreme over state law, harder for states to change K 2. Ct can’t change compacts, but can enforce them – order deliveries of water / damages (TX v. NM, p. 843) 3. Individuals don’t have private right of action – only enforceable by state 4. Assumed compacts are irrevocable 5. DL River Basin Compact – most successful compact
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C. Equitable Apportionment 1. SC tries to establish justice – no formulas 2. Fed interstate common law 3. Test – totality of circumstances – cost-benefit analysis of assessing allocation (CO v. NM I, p. 859) 4. Initial burden on complainant – show diversion will cause substantial injury 5. Burden shifts to other – either reasonable conservation will offset diversion OR benefits outweigh costs 6. Must support claims by C&C EE 7. Great Lakes – no export out of basin allowed, w/ small exceptions – each state/province passes parallel law VII. Water Quality – Clean Water Act A. CL background 1. If level of pollution in water prohibits your use, it’s same as if there’s no water 2. Natural flow rule – natural quality AND quantity 3. Prior appropriation – junior can’t pollute water to extent where senior can’t use it 4. Standards allow a lot of pollution B. Statutory Framework 1. Discharge of pollutant – § 502 a. Addition b. Pollutant c. Navigable waters = waters of the U.S. d. Point Source = discernable, confined, discrete conveyance 2. Technology effluent standards 3. National pollutant discharge elimination system – § 402 a. Permitting system to implement effluent standards b. EPA can delegate authority to states, if they meet criteria 4. States promulgate water quality standards – § 303 a. Evaluate water in borders b. Compare quality of water to standards c. Assess whether waters meet standards d. If don’t meet standards, set total maximum daily load (TMDL) for pollutant sources e. Permits must comply w/ TMDL 5. Citizen supervision – § 505 – can sue for violations of effluent standards / any order given by EPA 6. Permits required to deposit dredged & filled material in U.S. waters – § 404 – Corps oversees C. Non-point source pollution 1. Not addressed by the statute 2. Ag disproportionately represented, particularly in Senate 3. Particularly hard to know where pollution comes from & how to measure 4. Gets into land use regs, traditional left to states D. “Addition” of pollutant to water “body” 1. Dam isn’t “adding” pollutant to water, it is just allowing water through it (Gorsuch, p. 1027) 2. Water body must be “meaningfully distinct” or “hydrologically indistinguishable” (MicCosukee, p. 1032) 3. Breadth of statute’s meaning depends upon where you’re sitting – does it displace state’s authority? E. Water quality standards 1. Goal – make sure water is fishable & swimmable 2. States must submit water quality standards to EPA – § 303(a) – EPA approves, or sends back to state 3. Requirements – designated use + criteria to meet that use 4. Uses – recreation, drinking water, aquatic habitat, etc 5. VA standards a. Uses – recreation, aquatic life – man-made flow alterations can’t harm habitat b. Classification of waters – dissolved oxygen, pH, temperature requirements c. State divided into regions d. Every water body in state has assigned use 6. EPA used to not have guidelines for flow augmentation to fix effluent problem (Ford Motor, p. 1046)
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7. Only get same quality of water & enough water to satisfy appropriative rights (Thornton, p. 1050) 8. States must certify federally licensed activities that cause discharge – § 401 9. State has authority over water quality, activity under § 401(d) (Pud No. 1, p. 1056) F. “Discharge” – how broad? 1. Grazing permits fall under § 401, which is point-source discharges, like § 301 (Oregon, supp) a. But what work does § 401 do, if the definition collapses into § 301? b. § 404 uses “discharge” of dredged & filled – that’s not a point-source 2. SC has now ruled that 401 “discharge” is clearly broader G. Water quality standard promulgation 1. 303(a) – requires states to have water quality standards (WQS) 2. 303(d) a. (1)(a) – states must promulgate lists of impaired waters b. (1)(c) – requires states to publish total maximum daily loads (TMDLs) 3. EPA promulgated pollutant list under 304(a)(2)(D) 4. TMDL can be written for water bodies impaired only by non-point source pollution (Pronsolino, s p. 45) H. Wetlands 1. § 404 a. Corps grants permits for discharge of dredged / filled material b. Amended to include wetlands – all waters of the U.S. 2. Wetland = places where soil is wet enough so you see aquatic plants, not dry land plants 3. If adverse effects are bad enough, that can be sole grounds for denying permit (James City, p. 646) 4. Application – use alternatives analysis – Corps doesn’t grant permit if alternatives are better 5. § 101(g) – EPA enforces water quality, even if it has bad effects on quantity 6. “Isolated” wetlands aren’t subject to 404 jurisdiction (SWANCC, p. 640) 7. Waters must be relatively permanent, standing, or clearly flowing – adjacent (Rapanos, s p. 71) VIII. Endangered Species Act A. Statute 1. List species – § 4 – either endangered or threatened 2. Federal actions need permit – § 7 – no jeopardy, no harm to critical habitat 3. Prohibited acts – § 9 – can’t “take” 4. Incidental take permit – § 10 B. Klamath River 1. In dry years, not enough water to satisfy fish & farmers – big fights over water 2. Biological Opinion must be consistent, justify different flows at different times (Pacific, p. 660) 3. Fed agencies ultimately make value judgments about how important species are C. Ct found physical taking due to 30% loss of water use right – doesn’t make sense! (Tulare Lake, p. 653) IX. Federal Reserve Water Rights A. Implied Rights 1. Fed govt. didn’t explicitly reserve water rights when reservations created 2. Agreements construed in favor of tribes 3. Indians retain water rights when Congress creates reservation – quantity fits w/ purpose (Winters, p. 905) 4. Fed govt. can reserve water rights on fed reservations under Com Cl. and Property Cl. (AZ v. CA, p. 909) 5. Reservation gets water that is required to fulfill its purpose (Capaeret, p. 912 – keep fish alive) 6. Fed has water rights in national forest – preserve forest, ensure adequate flows / tinder (US v. NM, p. 917) B. Sources – statutes, documents creating reservation (Congress, Executive Order) C. Jurisdiction 1. Can’t simply remove state cases from fed ct (CO River, p. 943) 2. Fed courts have it – to what extent are they obligated to dismiss cases w/ parallel proceedings? D. Priority date – from time immemorial, if it comes from original Indian holdings (Big Horn, p. 958) E. There is reserve right for fishing, separate from ag right F. If Indian sells to non-Indian, must use water to keep the right – only get what Indian used (Colville, p. 980)