Water Law Outline
Prof. Buzz Thompson
Fall 2011
Overview
A. Water is not the type we can use: *Water we have today is entirely from meteors.
1. 97.5% of all water in the world is saltwater
2. Close to 70% of the freshwater is locked in glaciers and permafrost.
3. 40% of freshwater is groundwater, and only 0.3% is stream water
B. Water is not where we need it. West of 100th Meridian is desert, but also site of largest growth in last 50 years
C. Can't get water when we want it. Need water year round, particularly for crops. Leads to transportation & storage of water issues
D. Climate change
1. Mountain snowpacks serve as natural water reservoirs. Snowpack will melt earlier, making it more difficult to store water. Rain will not serve the same function as snow precipitation
2. Building new reservoirs is not an easy or economical option. Good, cheap locations have already been used. Unpopular in general. Environmentally harmful.
E. Population is growing: Growing fastest in regions with least water
F. Agriculture vs. Urbanization
1. Agriculture accounts for over 80% of water use
2. Urbanization is Changing Nature and Place of Use. As more people move into cities, water is redirected even as we demand more food and livestock.
* Solutions to these problems are often environmentally damaging, unsustainable, and competitive. Infrastructure in most of the world is inefficient and non-networked.
I. Introduction
A. Most regions go through three basic policy periods:
1. Age of allocation: supplies are plentiful, goal is to encourage development and overcome temporal/spatial problems.
2. Age of reallocation: regional supply shortages emerge; typical goal is to reallocate water to most valuable uses. Second half of the 20th century in the West; typically goes from farms to cities.
3. Age of sustainability: water becomes even scarcer; environmental concerns emerge. Typical goal is to find ways to sustainably meet demands in the long-run.
B. Two possible solutions to water shortages:
1. Import water.
a. CA has done this—Owens Valley, Colorado River, SWP, CVP
b. Changes hydroscape; has environmental effects: disappearing fresh lakes and estuaries, saltwater intrusion into deltas impacts species and delta water users; disputes between jurisdictions
2. Pump groundwater.
a. Nationally, as of 15 years ago, extraction was 75 bgd, recharge was 60 bgd. Probably worse now—not sustainable. 25% of Western US aquifers are being overdrafted.
b. Ogallala aquifer—provides 30% of all irrigation water pumped in US; virtually no recharge. Maybe the solution is just to draw it down, but need to think carefully about how best to do it. May be gone by 2050 or so; huge implications for TX, OK, KS.
c. Other problems with groundwater pumping: saltwater intrusion, expensive energy usage to pump from deeper water tables, subsidence, desertification, loss of surface water and biodiversity, harms surface water systems
C. Things to look for in designing an allocation system:
1. Protect against environmental externalities: restore instream flows, eviron v. recreation
2. Sustainably meet demands of urban users: conservation and reallocation
3. Adaptation to effects of climate change
4. Efficiency; meet basic needs; ecologically sound; politically viable; equitable; satisfy reliance interests; flexibility; prudence principle; ease of administration; security and resilience; reflect cultural values; avoid allocation leading to concentration of political power; easily monitorable and enforceable.
5. Role of Institutions
a. State Permitting Agencies used by all Western states and growing number in East
i. Administer allocation schemes for surface water and sometimes groundwater
ii. Agencies have important discretion re: who receives water
b. Municipalities & Public Utilities: Provide water to most urban/suburban users
c. Irrigation Districts: Local government units supplying 1/4 US West of irrigated land
d. Mutual Water Companies
i. Private orgs in which each recipient of water owns a fractional interest
ii. Provide water to ~1/4 of irrigated land in US Western states
e. Bureau of Reclamation
i. Largest water wholesaler in the country
ii. Built massive dams and reservoir projects in the Western US to bring subsidized water to farming regions
II. Riparian System
A. Riparianism. Common in the East; reflects English common law.
1. Defines water rights in terms of association with land bordering the watercourse. Rivers=Riparian, Lakes=Littoral, Springs= property of landowner where water emerges
a. Only riparian landowners can use water on riparian tracts within the watershed, though some jurisdictions now allow subordinate right of use to non-riparians.
b. Use must be reasonable (2nd Restatement of Torts, page 57)
c. No requirement that you be using it in order to have the right.
d. Natural/ domestic uses have absolute priority + legislated preferences (mining or ag)
i. Artificial uses include power generation, raising dairy and livestock, manufacturing, and recreation
ii. List of allowable uses varies by jurisdiction and changes over time
iii. Even reasonable uses can be pursued unreasonably, given the circumstances
e. Correlative rights: reasonableness depends on others’ needs. If one of the riparians develops a new need, that may change what’s reasonable for everyone else.
f. No right to market water rights separate from land transfer
g. In water becomes scarce, courts allocate available resources based on reasonableness
h. Navigational servitude held by the state to protect navigability without takings issues
2. “Natural flow doctrine” in common law: each owner has the right to water in undiminished quantity and quality. Strong protections of downstream users. Abandoned in the U.S. early on because of importance of water for agricultural and industrial uses.
3. Preferences and uses:
a. All riparians have the right to use the entire surface of the body of water for navigation and recreation. Extends to licensees and permitees, as long as total use doesn’t become unreasonable.
b. Right to wharf out to deeper water to gain access.
c. Non-riparian cities have to condemn water to move it elsewhere. Complicated questions of who you pay and how much.
4. Transfers of riparian land
a. Typically can’t transfer a water right apart from the tract. Can, however, transfer riparian lands without transfer of riparian rights—uncommon, though.
b. What about tracts severed?
i. If severed into two riparian portions, each portion has the same riparian rights.
ii. If there is a non-riparian portion, the non-riparian tract loses riparian rights.
iii. If reunited later…
(a) In most states, “unity of title rule,” riparian rights on the parcel exist as long as they were formerly one tract and are again.
(b) Some states, “source of title rule,” can’t reunite later.
(i) One-way ratchet, irreversibly reduces stock of riparian lands.
(ii) But most states that have this also have prior appropriation where you can appropriate for off-tract use, and are just phasing out their riparian systems.
5. Advantages of riparianism:
a. Easily administrable: attached to recorded property rights with clear rules.
b. Emphasis on reasonableness means it is mostly equitable among riparians.
c. Egalitarian burden-sharing among riparians in time of scarcity.
d. Ecologically sound:
i. Promotes efficient on-stream use, discourages long-distance transport of water, which keeps water in the basin.
ii. Doesn’t promote taking as much water as possible just to keep your right to do so.
e. Dynamic: allocation of water can change quickly in response to new circumstances.
6. Disadvantages of riparianism:
a. Inequitable
i. Does not add
l use it, amount needed, when you will use it, point of diversion.
b. If want to change any of these things, must go back and submit a change application
i. Change will only be allowed if it doesn’t injure any junior users.
ii. What counts as a change of use? Switching from flood to drip irrigation (reducing return flow) qualify? Probably not. Unclear whether you can increase efficiency to harm downstream juniors.
iii. Cannot change place of use without permission, but not restricted to riparian land
c. Advantages of permit system: gives state a chance to consider issues before the fact, to make sure there’s unappropriated water, and keep track of forfeitures and waste.
4. Position on the river matters.
a. Water available is often defined by very high flows—sometimes jrs get no water
b. Very downstream seniors can require upstream jrs to let water flow by them, unless evaporation losses exceed upstream user’s consumptive use “futile call doctrine”
i. Can downstream sr require high flow to get some? Reasonable/ beneficial?
c. Often, very jr appropriators get water if directly downstream of srs with return flow.
i. Quality can suffer as it is used over and over again.
5. General adjudication system: those with claims on river appear in court to prove use
a. Often very inaccurate; paper rights—people would claim more than they used, and few would challenge them because proceedings not truly adversary.
b. When someone wasn’t getting full appropriation, they’d “make a call on the river.” Ditch rider would close down diversions in inverse order until srs are served.
6. Other aspects of the system:
a. Groundwater: most states have integrated management, but CA, TX, and AZ do not
b. Mixed systems: must reconcile riparianism with prior appropriation.
c. Prescriptive rights: Allowed in some states outside of the public recording system.
d. Reserved rights: held by the federal government for use on its lands.
e. Pueblo rights: water rights in the Southwest derived from Mexican law.
7. Advantages of prior appropriation:
a. Use non-riparian land (most land in West) based on economic/ personal choices
b. Predictability/security (at the cost of equity). You know who gets what when scarce.
c. If you have trading, this looks like a good system for initial allocation.
d. Ensures that unused water goes back into stream for others
e. More information due to permit administration records and state control
8. Disadvantages of prior appropriation:
a. Encourages taking as much water as possible as early as possible, not abandoning
b. Environmental: Leaving water in stream is not beneficial use. Build away from water.
c. Non-dynamic—because it’s static and predictable, doesn’t change in response to environmental changes, personal needs, or locational advantages.
d. Shortage rules do not correspond to market efficiency
e. Diminished water quality for downstream users
f. Requires administration: permitting agencies initially and over time tabulate use and track diversions, abandonments, and changes; general adjudications cost time/ effort
