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Water Law
University of Alabama School of Law
Elliott, Heather

Water Law
Fall 2013
  I.            Uniqueness of Water
a.       Water can be re-used; water law relies on this reusability
b.      Water CANNOT be fully captured or privatized like oil, gas, land
II.            Water Law
a.       Governs freshwater mostly (not oceans, ice packs on mountains)
b.      In general, water law controls withdrawing water for something (not simply using for swimming, floating on surface)
c.       In the United States, surface water is governed by primarily two systems:
                                       i.            Riparian (in the East)
1.       AL follows traditional CL version of riparian doctrine.
2.       Other states follow a modified riparian doc. based on reasonableness of use.   
                                     ii.            Prior Appropriation (in the West)
1.       P/A is totally a US creation
  I.            Defined:
a.       Ancient doctrine that defines water rights in assoc. with ownership of land; does not depend on making use of the water
b.      Limits use of water to riparian landowners (to using water touching their tract)
II.            Riparian rules refer to surface water
a.       Water is lakes, rivers, streams, creeks, etc.
b.      As opposed to groundwater, diffuse water (water melting from snowcaps, etc.)—different legal regime
III.            Source of Riparian Rights: Own Land that Touches the Water
a.       You have water rights because you own the land that touches the water–RIPARIAN LAND
b.      What is a riparian parcel?
                                       i.            Riparian boundaries depend on nature of adjoining water-body/ what kind of water your land touches (navigable v. non-navigable)
·         Navigable waters treated differently because of commerce clause–Fed gov't has reach
·         Waters subject to state or federal ownership
·         Private ownership only to mean high water mark
·         Non-navigable
·         Default is to divide by the “thread of stream” or the live thalweg”
·         Lakes by wedge shapes
·         Can be overcome by grant governing ownership of land
                  May or may not be changeable by deed
                  Boundary Changes my affect:
·         With slow changes, boundary moves
·         Accretion/ deposition of land (e.g. accumulation of sand)
·         Gain land
·         Reliction of water (water retreat)
·         You gain property
·         Erosion of land (land wears away)
·         With swift changes, boundary remains where it was
·         Avulsion (e.g. river cuts through oxbow)
      RIPARIAN RIGHTS (to use)
            Traditional Riparian Doctrine, only person touching water gets these rights to use the water
                  CANNOT share or sell water rights to someone not touching water
                  May NOT use off tract or out of watershed
                  Comes from English CL natural flow doctrine
·         Can use for domestic purposes and reasonable artificial purposes
·         May NOT “diminish quality and quantity”–no water can be transported off riparian land
·         SO, can't divert for power of mills, dams–this would affect downstream riparians
            American Riparian Doctrine
                  MOST US states relaxed rules to aid development (But not AL–still traditional)
                  Reasonable diminution acceptable (whereas traditional followed English natural flow not allowing diminution of quality or quantity)
                  Some off-tract use acceptable
            Selling riparian land
                  In some states, once parcels split can no longer be re-unified and made riparian again (this is mostly out west)
                  Other states, do allow parcel previously non-riparian to join riparian, becoming riparian itself (most Eastern riparian states–because you want as many pieces as possible to access water)
            Permissible Riparian Uses: (what riparians get)
                  Domestic purposes: natural uses
1.       Drinking, bathing, subsistence farming
2.       An absolute right: can harm others
·         Nobody can take this from you–even during droughts or if hurts other users
                                     ii.            Artificial uses: must be reasonable (US adopted reasonableness instead of English natural flow, which most of these would fail under)
1.       Power generation
2.       Irrigation and herd watering
3.       Manufacture
                                                     iv.            Recreation
                                                       v.            List changes over time
e.      Reasonableness elements:
                                       i.            Some uses are unreasonable per se
                                                         i.            Diverting water to kill pests (e.g. flooding moles)
                                                       ii.            Diverting water to spite your neighbor
                                     ii.            Must be reasonable in nature and extent:
                                                         i.            Even when a use is reasonable in abstract, extent of use can be unreasonable
                                                       ii.            e.g. too many cows, tying to generate too much power, too much land for what water provides
                                    iii.            Riparian uses are CORRELATIVE: users must adjust to others' uses
                                                         i.            Easier to determine on small lake than big river
limit is again reasonableness
                                                        I.            can have friends come boating, but can't have 200 people coming to pay to jump off your wharf… (neighbors will sue and you will be enjoined)
                                  IV.      Some statutes prioritize uses
                                    e.      Unreasonable uses will be enjoined.
                    f.            Problems with reasonableness
a.       All CL and enforced through litigation (reactive NOT proactive)
b.      No agency issuing permits up front to determine is use is reasonable
c.       Likely to be litigated after harm caused
                   g.            How to Deal with Scarcity: think CORRELATIVE (all subject to others’ uses)
a.       Under conditions of scarcity, courts may require across the board cuts–“share the shortage” (whereas in p/a, first in time users not cut back at all)
b.      If uses are not scalable, some uses may be stopped in favor of others.
                  h.            Restatement 2d of Torts § 850A and reasonableness:
a.       The determination of the reasonableness of a use of water depends upon:
                                                         i.            the interests of the riparian proprietor making the use,
                                                       ii.            of any riparian proprietor harmed by it and
                                                      iii.            of society as a whole. 
b.      Restatement 2d of Torts § 850 factors when competing reasonable uses (weigh uses):
                                                         i.            Purpose of use
                                                       ii.            Suitability of the use the watershed or lake
                                                      iii.            Economic value of use
                                                     iv.            Social value of use
                                                       v.            Extent of amount of harm it causes
                                                     vi.            Practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other
                                                    vii.            Practicality of adjusting the quantity of water used by each proprietor
                                                  viii.            Protection of existing values of water uses, land , investments, and enterprises, and
                                                     ix.            Justice of requiring the user causing harm to bear the loss
c.       In some states, transcended by statute
                     i.            LIABILITY under reasonable use riparianism:
a.       RULE: “a riparian proprietor is subject to liability for making an unreasonable use of the water of a watercourse or lake that causes harm to another riparian's reasonable

ive tanneries, upon moderate sized streams, to expend their refuse, or spent bark, into the stream?
                  Reasonableness rule: The reasonableness of such use must determine the right, and this must depend upon the extent of detriment to the riparian proprietors below.
                                                         i.            If necessary to tannery, must be reasonable (tanneries good, beneficial–bad to shut down)
a.       Ct wants to maximize total benefits obtained from the use of the stream
b.      Talks about putting up with certain inconveniences to further development
d.      Tyler:
                                     a.            Water rights are usufruct: right to use (you don't own water molecules)
                                    b.            Correlative rights (all riparians have equal, related rights of use)
                                     c.            Why U.S. shifting to reasonable use: efficiency and productivity
                                                         i.            We want productive use of water
                                                       ii.            Natural flow prevents valuable use
                                                      iii.            Each has merely a right to use (need to actually experience some injury to sue and prevent others from similarly using)
e.      Reasonable Use Summary:
                                     a.            Easy to say, hard to apply
                                    b.            Every time new user to a body water, users have to adjust
  I.            Incompatible Uses
a.       Pyle v. Gilbert
                                     a.            Facts: Plaintiffs are the owners of a 140-year-old water-powered gristmill. They emphasize the natural flow theory. Defendants are upper riparians using water to irrigate their farms. They emphasize the reasonable use theory of water rights.  Stream is non-navigable.
                                    b.            Law applicable is natural flow modified by reasonable use, seems very favorable to riparian claims of trespass (diversions of water NOT allowed under the law)
                                     c.            Ct, however, allows diversions/off-tract uses that are reasonable
                                                         i.            Reasons that the Leg., when banned diversions, did not have agricultural irrigation on its mind (as wasn't really taking place when statute passed)
                                                       ii.            Whether reasonable is a question of fact depending on:
a.       Volume of water
b.      Season and other climatic conditions
c.       Effect of use on riparians
d.      Needs of irrigator
II.            Access to Surface
a.       Traditional Rule: riparians can only use water super-adjacent to their property (not whole surface)
b.      “Civil Law” Rule: riparian owners have the right to use the entire surface in common with their co-riparians
§  Riparians own the underlying bed only to extent of property line
§  Limited only by reasonableness (cannot unreasonably interfere with rights of co-riparians)
§  Similarly, to effectuate the value of the riparian parcel for either commercial or recreational navigation, riparians have a right to wharf out to deeper water, so that a boat could dock without having to be brought onto shore