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Water Law
University of Alabama School of Law
Elliott, Heather

Water Law
Spring 2012
·         Power v. People (Supreme Court of Colorado, 1892)
o    Neighbors found Mr. Baer wounded in the leg from a gunshot and unconscious, he died
o    The defendant, Power, and his sister had been involved in a controversy with Baer and others about an irrigation ditch
·         Baer claimed the right to occupy, use, and maintain the ditch (he built the ditch years before)
·         Power claimed that the ditch interfered with his premises
o    Holding: The mere fact that Baer may have wrongfully or otherwise attempted to operate a ditch through defendant's ranch would not justify the defendant in taking Baer's life.
An Overview of Water Resources
Different Water Uses:
o    Agriculture
·         accounts for over 80% of our total water consumption
o    Transportation
o    Generating Electricity
o    Fishing Industry
o    Recreational Activities
Current Offstream Consumption
o    The US consumes less than 30% of the water that it withdraws from waterways and aquifers
o    Water that is not consumed often can be reused, assuming it is not too polluted, by the same or a different user
o    To the extent that the national can increase the efficiency with which it uses water, it can reduce the amount of water withdrawn (leaving more water for important instream needs).
Regional Shortages of Water
o    Two principal sources of fresh water:
·         Surface Water – the streams, rivers, lakes, and diffused runoff
·         Aquifers – the underground bodies of groundwater
o    The Hundredth meridian is a highly significant line
·         East of the line: the rainfall is usually generous enough that farmers can generally grow their crops without irrigation
·         West of the line: much of the flatlands are labeled “the Great American Dessert”
o    Water planners frequently divide up the United States into 21 separate water-resource regions.
o    There are geographic imbalances and serious seasonal variations across the United States
Groundwater Overdraft
o    Groundwater supplies nearly half of the U.S. population's drinking water and constitutes 24% of all freshwater used
o    As reliance on groundwater has increased, the nation has begun extracting more groundwater each year than is replenished
o    Data on groundwater overdraft is collected locally and no comprehensive national reporting network exists.
o    Results of Overdraft:
·         Water is permanently lost
·         Surface vegetation often dies, leading to desertification of the overlying land
·         Pumping costs increase
·         Sea water can intrude into and pollute costal aquifers
·         Other contamination problems can worsen
·         Overlying land can subside
o    Ways to Combat Overdraft:
·         Aquifer storage and recovery projects
·         Conjunctive use of ground and surface water resources
·         Controlled groundwater pumping
·         Conservation and reuse of water
Water Allocation Systems
o    State law provides the basic allocation system
o    Two principal systems to allocate surface water among competing users:
·         Riparian Doctrine – the water in a river belongs, as a general rule, to the owners of land “riparian” to (i.e., including or bordering on) the waterway, with some modern inclination to allow non-riparians a subordinate right of use
§  Almost all the states bordering on or east of the Mississippi River
§  Where there is insufficient water to meet all riparian needs, these states ration the water among the riparians according to a broad reasonableness standard
·         Appropriation Doctrine – available water is allocated on a first-come, first-served basis to anyone (whether riparian or not) who puts the water to a beneficial offstream use
§  Dry inland states of the West
·         Hybrid:
§  Those conterminous states that border the Pacific Ocean or straddle the Hundredth Meridian adopted mixed appropriation-riparian systems
·         Although riparian rights remain important today only in California, Nebraska, and Oklahoma
§  Other states initially adopted the common law but later abolished it, or essentially abandoned it, and appropriate predominates in them
o    Groundwater Allocation:
·         Only owners of lands that overlie an aquifer have a right to water from the aquifer – most of the states bordering on or east of the Mississippi River
·         Some form of appropriation system – most of the western United States
§  California follows a mixed system
The Important Role of Institutions
o    Numerous governmental and non-governmental institutions
o    Permit systems – state agencies administer their allocation schemes for surface waters and sometimes groundwater
·         Almost all western states and a growing number of eastern states
·         The permit agencies have considerable discretion in the administration of water rights and can have an important impact on who receives what water
o    Most urban and suburban water users, moreover, depend on municipalities and public utilities for their water
·         The municipality or utility may in turn get its water from a governmental water agency
·         In the West, various special institutions also control and allocate vast quantities of water to farmers and ranchers
§  Irrigation districts – local governmental units
§  Mutual water companies – private organizations in which each recipient of water owns a fractional interest
o    Depleted aquifers are being used for storage under what are called conjunctive-use systems
·         During periods of high surface flows, excess water is used instead of groundwater, or is captured and allowed to replenish an aquifer
o    The US Bureau of Reclamation is the largest water wholesaler in the country
o    Desalination – the process of removing dissolved salts and other chemicals from water
o    Price: In the US, desalination has in the past been simply too expensive to compete with water from wells, reservoirs and rivers.
·         A majority of the roughly 1,200 desalination plants in the US are used for processing brackish groundwater, primarily for industrial operations that rely on highly purified water
·         In the last decade, technological advances in desalination techniques have lowered the price and associated environmental damages
·         Energy consumption accounts for as much as 20-50% of total operating costs which makes the cost of desalinated water very sensitive to the cost of electricity
o    Process: Although there are a number of methods to desalt water, membrane and thermal distillation technologies are the most prevalent world-wide.
·         The distillation process mimics nature's hydrologic cycle by heating salty water to produce water vapor that is then condensed to form fresh water
·         Membrane filtration – ocean water is first pretreated to remove sand and other material, it is then forced at high pressure through layers of membranes that allow water molecules to pass through while trapping the larger salt molecules in a process termed reverse osmosis
§  the exclusive desalination process used in the US
Pollution Problems
o    The Clean Water Act provides for a direct assault on “point” (or confined) sources of pollution, such as sewage and industrial outfalls.
o    “Nonpoint” sources of pollution such as agricultural runoff, for which the Clean Water Act still lacks effective provisions, remain a serious problem.
Water Measurement and Terminology
·         Rate of pumping for groundwater – gallons per minute
·         Flow – cubic feet per second (cfs)
·         Quantities – acre foot
o    One acre foot is enough water to cover one acre of land to a depth of one foot
Riparian Doctrine
·         Riparianism is the governing law of the more humid areas of the US, generally including those states along and to the east of the Mississippi River.
·         Riparianism – doctrine that defines water rights in terms of use of water in association with ownership of land
o    The traditional riparian right to use water is derivative of ownership of land; the right inures to the benefit of owners of riparian parcels and does not depend for its continuing validity on actually initiating or continuing to make use of the water.
o    Two major undertakings of riparian doctrine:
·         The definition of what lands are riparian (thereby defining a potential user class) and

ghed should they all fail to point to a single outcome
The Common Law Development of Riparian Rights
·         Natural Flow Doctrine – the principal right of a riparian land owner was the right to have the water flow by his land, unimpaired as to the quantity and quality, though the riparian owner was allowed to use the water for “domestic” purposes
o    English common law
o    Early American common law
·         Mill Challenge Cases
o    Conflicts among competing mills on the same stream
·         Judges modified the venerable common law rules to resolve the rights of competing millers
o    Claims for inundation of upstream lands by the flowage of mill ponds
·         Courts mostly treated inundation cases as they would any other continuing trespass – an appropriate case for injunctive relief
·         Martin v. Bigelow (2 Aik. 184), Supreme Ct of VT, 1827
o    Facts: Plaintiff's mill was located upstream of defendant's and its erection reduced the flow to the defendant's mill, defendant removed the waste gate from the plaintiff's mill dam
o    Issue: Whether the defendant's having first appropriate the water of the stream to the use of his mill entitled him to the water without such obstruction as was created by the plaintiff's use of the water at his mill?
o    The court:
·         Rejects English common law
·         Draws a distinction between a claim of right based on mere priority of occupancy and the possibility of a right based on prescription (longstanding prior occupancy)
o    Holding: The mere prior occupancy of the water by the defendant does not give him a right to prevent the plaintiff from using the same water in a prudent way, as it flows down its channel
·         Snow v. Parsons (28 Vt. 459), Supreme Ct of VT, 1856
o    Issue: Whether it is proper for extensive tanneries, upon moderate sized streams, to expend their refuse, or spent bark, into the stream?
o    Reasonableness:
·         The reasonableness of such use must determine the right, and this must depend upon the extent of detriment to the riparian proprietors below.
·         The matter of reasonableness is a matter of fact.
·         The uniform custom of the country for generations, would be of some significance in determining its reasonableness.
o    Court wants to maximizing the total benefits obtained from the use of the stream
o    Any party to the dispute may be asked to alter their method of operating to enhance the overall good
·         Doctrine of damnum absque injuria – property interests are not absolute, they must give way when some compromise of those interests offers a widespread benefit to the larger community of which the adversely affected owner also partakes
·         Mason v. Hoyle adopted a famous set of factors for courts to consider in resolver user conflicts, factors that assist the court in measuring whether a use is reasonable:
o    The equal opportunity of all riparians to use the stream
o    The maxim that no owner can use his own property so as to injure another
o    The character and capacity of the stream
o    Foreseeable shortages and apportioning them in a manner that permits all riparians to secure a fair proportion of the benefit, and
o    Customary practices as an indicium of reasonableness
·         Mill Act – immunized millers from injunctions at the behest of inundated owners, and often limited damages as well