Select Page

Water Law
University of South Carolina School of Law
Eagle, Joshua Gary

Water Law

Eagle

Fall 2014

Introduction to Water Resource Issues

– Vocab:

o Inter basin transfers: taking water in one watershed to another watershed

§ Watershed/basin: the area drained by a river and its tributaries.

o Return flows- water runoff goes back into surrounding surface water (part that’s not consumed)

o Groundwater recharge: the flow of water into an aquifer

o Riparian: someone who owns land that abuts a body of water

o Right of access: right of person to go into water source

§ Prevents state from filling in water ways

o Right to warf out: water is so shallow so you have right to build dock to part that is navigable so you can get into the commerce

§ Warf is technically a commercial dock that boats can stop at and drop off goods however this right applies to docks not for commercial goods as well

o Irrigation: watering plants with something other than rainfall

§ 37% of freshwater withdrawals are from irrigation

o Off-stream water use: uses that remove waters from streams

o In-stream water use: uses that are dependent on leaving the water in the stream

o Return flow: water that goes back to source after it was used

o Flood plain: that portion of a river valley which is covered with water when the river overflows its banks at flood stage

o Evapotranspiration- the sum of evaporation and plant transpiration from the earths land and ocean surface to the atmosphere

o Reservoir: natural or artificial lake, storage pond, or impoundment from a dam which is used to store water

o Subsidence: the motion of the earths surface as it shifts downward to level (sea level)

§ Happens a lot due to mining the subsurface which causes the land to collapse

o Withdrawal: water taken out of a source

o Correlative rights: a legal doctrine limiting the rights of landowners to a common source of groundwater to a reasonable share, typically based on the amount of land owned by each on the surface above

o Consumption: water used that cannot be returned to the system in a short time (removed from immediate environment)

§ The amount of water consumed by a particular use and thus unavailable for further use

§ Nonconsumptive use: any water use that does not reduce the supply of water available for other uses – e.g. hunting and swimming

o Desalination: process of removing dissolved salts and other chemicals from water

§ Cost of this water is pretty high

o Nonpoint source pollution: unconfined pollution (cant pin point where it is coming from)

o Flow: how much water is flowing in a river, or how much flow is being removed from a river

– Why water laws are important:

o Eastern water law comes from the English common law (riparian)

§ Rules weren’t very good/certain because there is a lot of water in England

· Doesn’t work well for water shortages

§ SC adopted these rules because we did have a lot of water

§ Traditionally if there was insufficient water to meet all riparian needs, the water gets rationed among the riparian’s according to a reasonableness standard

§ Regulated riparianism: states that are taking steps to superimpose a permit system on the common law riparian system

o Western water law is prior appropriation

§ Developed in response to a shortage of precipitation and rivers/surface waters are far and few between

§ Water is allocated on a first-in-time, first-in-right basis to anyone (riparian or not) who puts the water to a beneficial off stream use

o A lot of states also adopted a mixed appropriation –riparian system

o Water law is evolving

§ East cost is now seeing water stress so now trying to change laws

o Land without water isn’t worth anything in west especially, but also in SC

– Most vital natural resources

o Many people believe it’s a basic human right to have water and therefore no one should pay for it

§ Problems with this:

· Someone has to pay for wastewater treatment and delivery

o Could do this through taxes

· No incentive to conserve if free

– Facts about water use

o Almost all water uses return a significant portion of the water to a stream or aquifer from which it may be the source water for a subsequent use

o Most states own water

o You have a right to take water but you don’t own it

– Distribution of water

o Two sources of fresh water

§ Surface

· Includes streams, rivers, lakes, diffused runoff

o Runoff can be from rain, snowmelt, or other sources of flow over the surface of the water

§ Significant source of nonpoint source pollution

§ Groundwater (aquifer)

· Subsurface water from which wells and springs are fed, applies to water below the water table

· Supplies half of nations drinking water

· Overdraft: more groundwater is extracted than replenished

o Results of overdraft:

§ Increased pumping costs, sea water intrusion, contamination problems, surface vegetation dies off, and sinkholes

· Intrusion is when you pump out so much of the water, sea water starts to come in to replace the water that was pumped out

– Impacts of global warming:

o Current patterns of water use, and the infrastructure built to support them, are based on historic climate patterns as we have understood them in the past

o Global warming is changing this since we cannot plan ahead if we do not know whats going to happen

o Making water use/control more uncertain

Riparianism:

– Riparianism links the right to use water to land

o Very unclear laws on this, so if there is a shortage, there will be fights

o Is riparian if any part of the land owned touches the waterway

o A parcel that is close to the water but has no frontage on the water way is not riparian

o The severance of land not touching the water from a larger tract, part of which touches the water. Destroys the riparian rights associated with the severed portion of the tract

o If person wants to buy two lots (so its one big lot) and one of the lots is on a waterway, there are two ways to determining the riparian rights:

§ Source of title doctrine: limits riparian rights to the smallest riparian tract in the chain of title

· Therefore the portioned once sever is forever considered non-riparian

§ Unity of title doctrine: restores riparian rights to the non-riparian portions of parcels if the severed portions are again unified with the riparian portion of the original tract

§ Neither doctrine puts a limit on the ability of a riparian to divide a single riparian tract into two or more smaller tracts

– Definition: someone who owns land that abuts a watercourse

from state to state and is modified over time by courts or legislatures

o Uses that are not reasonable can be enjoined

o Can be reasonable or unreasonable

· Everyone has an equal right to use water

o If someone use is unreasonable and doesn’t allow for downstream water use, the court can enjoin upstream user, or try to find a way for both parties to have ability to use water

§ Doesn’t apply to domestic (exempt)

o When the court tries to work with the parties it doesn’t provide precedent to go off of in the future however it helps incentivize people to work it out instead of going to court

§ An unreasonable use is waste: and you cannot waste water

– Municipal uses

o State can take water but if it interferes with downstream users then the state has to pay

§ Its essentially a taking

· Most states don’t do this – states own water so don’t need to compensate for taking for public use

– Water law and Property

o Not property like because its extent is dependent on other things like drought, upstream and downstream uses, etc.

§ What you can consume changes constantly

§ based sometimes on the state

o Law based off Tort not property cause it is like a nuisance when violated but without the physical invasion

§ More like a conceptual invasion

· Takings claim with taking of water use -> this is property

§ Put with torts because not property like

o Restatement (second) of torts Section 850: Harm by one riparian proprietor to another

§ A riparian proprietor is subject to liability for making an unreasonable use of the water of a watercourse of lake that causes harm to another riparian proprietor’s reasonable use of water or his land.

· Unreasonable here is talking about an interference

· If waste, you lose, if not look to Section 850(a) factors

o Restatement section 850(a): reasonableness of the use of water

§ The determination of the reasonableness of a use of water depends upon consideration of the interests of the riparian proprietor making the use, of any riparian proprietor harmed by it and of society as a whole. Factors that affect the determination include the following:

· (a) The purpose of the use

o Private nuisance: if your using your land domestically, you win

· (b) The suitability of the use to the watershed or lake (is it new and different, can the lake sustain the use)

· (c) The economic value of the use (focusing on economic benefit/productivity of new use)

· (d) The social value of the use (what does use do for others – also includes damage to water source)

· (e) The extend and amount of harm it causes (interferes with other reasonable uses)