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Water Law
University of Oklahoma College of Law
Kershen, Drew L.

Water Law Outline

Professor Kershen: Fall 2014

Water Law focuses on problems of scarcity, not overabundance.

State law provides the basic allocation system.

· Almost all of the states bordering on or east of the Mississippi River adopted and continue to adhere to the riparian rights doctrine.

· The dry inland states of the West follow the prior appropriation doctrine.

· Those conterminous (sharing common boundary) 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.

Almost all western states and a growing number of eastern states use permit systems, run by state agencies, to administer their allocation schemes for surface waters and sometimes groundwater. These agencies are given considerable discretion in the administration of water rights and can have a serious impact on who receives what water.

States use one of five different groundwater allocation doctrines, which, in turn, adopt one of three basic approaches:

1. A Rule of Capture

2. A Rule of Sharing

3. A Rule of Priority

Groundwater and surface water are often hydrologically connected, so that withdrawals from one source can impact the other.

Looking to the future—two themes: (1) The inherent limitation imposed by aridity in the West, and (2) the important of managing water on a hydrologically rational basis.

RIPARIAN RIGHTS

Fundamental principle: the owner of riparian land—land abutting/contiguous to the watercourse—acquires certain rights to use the water

· Each riparian landowner may make reasonable use of the water on riparian lands if the use does not interfere with reasonable uses of other riparian owners.

· Watercourse – a natural stream flowing constantly or recurrently on the surface of the earth in a reasonably definite natural channel… This term may also include springs, lakes, or marshes in which a stream originates or through which it flows.

o In the eastern states, the courts generally require that a stream flow all year to constitute a watercourse.

o In the arid West, natural streams may be dry for much of the year, coming to life only during the rainy season, and may still be included within the definition of a watercourse.

· Artificial streams or lakes are not controlled by riparian doctrine.

Criticisms:

· For non-in situ uses, there is no necessary correlation between contiguity of land to water and the ability of a parcel to benefit from use of the water.

o The limitation of water to riparian tracts can be inefficient.

· A further criticism stems from patterns of ownership that have evolved over the centuries of conveyancing.

History:

· “Natural flow” theory – every riparian landowner had an equal right to use water in the stream and a duty not to diminish the quantity of water otherwise flowing to proprietors lower on the stream; English legal doctrine

o Permits every owner to consume as much water as needed for domestic purposes. Beyond this, the owner may use the water for “reasonable” artificial or commercial proposes, subject to the very large proviso that he mat not substantially or materially diminish the quantity or quality of water.

o No water may be transported to land beyond the riparian land.

· “Reasonable use” theory – English judges began borrowing from the American opinions of Justice Story and Justice Kent, incorporating the “reasonable use” theory into English riparian doctrine; can be likened to prior appropriation’s concept of “beneficial use”

o Application of reasonable use principles modified the natural flow theory by allowing each riparian the right to make all reasonable uses of the waters so long as those uses did not interfere with the reasonable uses of other riparians.

o What is a reasonable use must be determined on a case-by-case basis.

§ Incorporates notions of type/purpose of use and the amount/manner of use

· Type/Purpose of Use – right to use water for domestic purposes, such as drinking, bathing, and raising a small quantity of garden produce and livestock; “natural use” is an absolute right and may be exercised without regard to its effect on co-riparians

· Quantity/Manner of Use – any artificial use of a riparian must be reasonable with respect to the correlative ability of other riparians to make simultaneous reasonable use of the watercourse

o An otherwise permissible, reasonable use that is taken to the extreme can become unreasonable and therefore subject to legal abatement.

o Reasonable under the totality of circumstances— Restatement (Second) of Torts

· With the industrial growth of 19th century America, the notion of preserving the natural flow of the stream was rendered obsolete by the need to alter the stream to maximize water uses.

o Municipal Uses – many states have adopted statutes that ensure water availability for municipal supply—statutes give a preference to municipal supply, although not eliminating the need to compensate adversely affected riparians

§ Riparians along the source watercourse will receive Fair Market Value for the diminution or subordination of their riparian rights where flow is diminished.

“Natural” vs. “Artificial” uses:

· Natural uses include those that meet the domestic needs of the riparian landowner, such as drinking, washing, and watering small gardens or a few livestock.

o Under the natural flow rule, a riparian could use water for natural purposes even if it diminished the flow to the harm of lower riparians.

o The reasonable use doctrine also reflects a preference for natural uses.

· Artificial uses include things like power generation, raising dairy and livestock herds, manufacturing, and recreation.

o Artificial uses such as for irrigation and industrial purposes are subject to reasonableness restrictions.

· Practical reasons for the preference for natural/domestic uses:

o Such uses are unlikely to consume enough water to injure lower riparians.

o Enforcement of any restriction on domestic uses is difficult.

o Such uses as are necessary to sustain life are bound to be “reasonable.”

Riparian rights include:

· The right to the flow of the stream;

· Right to reasonable use of water flowing past one’s land, provided the reasonable uses of other riparians are not injured;

· Right to wharf out from the shore to deeper water;

o There are limitations to protect navigation.

· Right to have water remain unpolluted (right to purity);

· Right to fish;

· Right to have access to the stream;

· The right to claim title to the beds of non-navigable lakes and streams; and

· The right to protect the banks of the stream from erosion.

Civil law rule – riparian proprietors in many states have the right to use the entire surface of the water for navigation and recreation, even though the lands beneath the water may be partially or wholly owned by others

· Tends to maximize the utility of each riparian’s use of the water by preventing su

f’s use of the water at his mill.

· 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

o Abandons English natural flow theory

· Who should bear the costs of accommodation?

o The Restatement seems to embrace the “deep pocket” theory, placing the costs of accommodations among reasonable uses on large, highly capitalized entities (such as water companies) when they put water to new uses.

o “Later uses with superior economic capacity should not be allowed to impose upon smaller water user’s costs that are beyond their economic reach or that will render their uses unprofitable.”

Snow v. Parsons (Vermont, 1856)

· Issue – whether it is proper for extensive tanneries, upon moderate sized streams, to expend their refuse, or spent bark, into the stream

o Reasonableness of the use must determine the right, and this must depend upon the extent of detriment to the riparian proprietors below.

o Uniform customs of the country has some significance in determining reasonableness.

· Can the tanneries adjust? Must consider:

o Accommodations – “Any party to the dispute may be asked to alter its method of operating to enhance the overall good.”

o Benefits

o Necessities

o Custom

o Detriment

Mason v. Hoyle sets out a famous list of principles and factors for courts to consider in determining reasonableness of use:

1) All riparians have equal opportunity to use the stream,

2) No owner can use his own property so as to injure another,

3) The character and capacity of the stream,

4) Allocating the burden of accommodating to foreseeable shortages in a fair manner, so as to permit all riparians to secure a fair proportion of the benefit, and

5) Customary practices are an indicium of reasonableness.

Pyle v. Gilbert (Georgia, 1980)

· Issue – Whether the use of water for irrigation is a diversion under our laws and thus is prohibited.

· Holding – The right to the reasonable use of water in a non-navigable watercourse on non-riparian land can be acquired by grant from a riparian owner.

o Non-riparians could now have rights to water as long as the use was reasonable—specific to non-navigable waters.

o Authorized the sale of water rights

o Moved to a more Utilitarian value in water

· Code of 1863 § 2206 – “Running water, while on land, belongs to the owner of the land, but he has no right to divert it from the usual channel, nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner.”

· The Restatement relies on two principles:

1) Riparian rights are property rights and as such could normally be transferred.

2) Water law should be utilitarian and allow the best use of the water.