WATER LAW OUTLINE
STUDY OF WATER LAW APPLIES ONLY TO FRESHWATER – SALTWATER/OCEANS = WORTHLESS.
Consumptive use – manufacturing, drinking, irrigating crops, power generation
In-stream use – navigation, recreation, fishing, etc.
Environmental benefits – fish, wildlife, habitat, aesthetics (scenery), property enhancement value
Basic System used to allocate water between private parties in 31 eastern states (east of 100th meridian)
Based on 2 fundamental principles:
(1) Right to use water belongs to those who own property adjacent to water body (people called riparians) – states such as MICHIGAN (if you own property land adjacent to water body – you have right to use of water in water body and water body itself) if you don’t own property you are SOL.
(2) Right to use water limited by doctrine of reasonable use – only have right to use what is reasonable and that is determined relevant to various circumstances (judge decides usually).
Common Law Development of Riparian Rights
Riparian System – Riparians have right to use water (those with land adjacent to water body); A riparian is one who owns land adjacent to a flowing body of water; litorals are people with land adjacent to standing bodies of water.
What rights do Riparians have?
(1) Right to use water for consumption:
2 Types of Consumptive Use: First and foremost is for Natural Uses (bathing, drinking, growing food for family); Artificial Use (Non-domestic use – everything else basically; Commercial, agricultural, aesthetics, recreation, energy)
(2) Boating (recreation)
(3) Fishing, swimming in entire surface water body of water they are riparian to
(4) Wharf – install piers
(Natural Use, Artificial Use, Surface Bodies, Bottom lands)
PROS and CONS of RIPARIANISM
PROS: Limiting the number of people that have access to a body of water helps preserve it
Most fundamental aspect of limiting use of water to riparian land – built in assumption that if someone owns the land adjacent to the water body they are likely to take better care of it. Limited number of users, users have built in incentive to want to maintain health of water
CONS: More useful way to use water than letting landowners do with it what they will (economically inefficient system) Limiting people who have right to use water to those adjacent to water body, you are essentially pushing all industry and water-intensive infrastructure to be on the water body – which turns out is not a good idea; all sources of pollution, intensive development, impermeable surfaces, etc. end up right on water bodies [we are trying to undo this system currently b/c of problems it poses] Creating system where most polluting/environmentally impacting uses had to be located on most sensitive lands/water bodies
COMMON LAW Development of Doctrine of Reasonable Use:
Merritt v. Parker (1795) ” Natural flow rule”
You can use the water, but you cannot do anything to alter natural flow of water body. This rule was tossed at dawn of industrial revolution – because really limited any substantial use of the water (would have prevented factory construction, pollution at all, etc.) Allows cranky down river property owner to enjoin much more productive use of water by other people.
Martin v. Bigelow (1827) Reasonableness standard introduced
Martin (P) upstream owner, (D) downstream owner, – both owned mills. Downstream property owner (D) did self-help remedy and snuck on P’s property and removed a gate so the water would keep flowing downstream. P had originally opened up a mill, diverts water into mill-pond, reduces water flow to downriver (D) owner. Under natural flow rule, D would be winner in this case, because upstream owner interfered with flow of water.
Snow v. Parsons (p. 42)
Tannery disposed of bark into stream; Tanneries (1) produce pollution inevitably, pollute water body they are located on; (2) at time of this case, tanneries produced a good that was critically important to economy/lifestyle of industrial America.
Court remands case to determine whether disposing of pollutants is reasonable.
Mason v. Hoyle (p. 45 note 3) Introduces Factors for courts to consider in resolving user conflicts and assist in measuring reasonable use:
(1) the equal opportunity of all riparians to use the stream
(2) the maxim that no owner can use his own property so as to injure another
(3) the character and capacity of the stream
(4) foreseeable shortages and apportioning them in a manner that permits all riparians to secure a fair proportion of the benefit, and
(5) customary practices as an indicium of reasonableness
Frontage — how much property you have on water body
· Reasonable use does not depend in any part upon frontage.
· Riparian rights are not at all relevant or dependent on the amount of frontage they have.
*Think of house on Lake Charlevoix* Just b/c we only own a small portion of frontage property – still have equal rights to large property owners on the lake.
· Use of bottom land is dependent on frontage – you get more rights to bottom land when you have larger property
REASONABLE USE FURTHER DEVELOPMENTS:
Pyle v. Gilbert (Incompatible uses)
Water rights case involving a non-navigable watercourse. Ps own 140 yr old water-powered grist-mill. Emphasize natural flow theory. Ds are upper riparians using water to irrigate farms. Emphasize reasonable use theory.
Ct discussed prior adoption of doctrine of reasonable use: “Each proprietor of land on the banks of the creek, has a natural and equal right to the use of the water which flows therin as it was wont to run, without dimunition or alteration. Neither party has the right to use the water in the creek, to the prejudice of the other. The plaintiff cannot divert or diminish the quantity of water which would naturally flow in the stream, so as to prejudice the rights of the defendants, without their consent. Each riparian proprietor is entitled to a reasonable use of the water for domestic, agricultural and manufacturing purposes; provided, that in making such use, he does not work a material injury to the other proprietors.”
Case Outcome: Use of water for agricultural purposes recognized as reasonable use.
Restatement: Riparian rights are property rights and as such could normally be transferred, water law should be utilitarian and allow best use of the water.
RESULT: Court basically changed the law, but didn’t want to say it was doing so. Court said we follow the natural flow rule, but it is modified by reasonable use.
Notes on Reasonable use:
· If no actual harm is suffered by one riparian, and the other is making valuable use of a short supply, the latter use ought to prevail.
2 parts of reasonable:
(1) Per se unreasonable – using water to drown gophers on your land (only pure example)
(2) Everything else – Theoretically everything presumed reasonable; but sometimes competing with other reasonable use that conflicts with your use
Joslin v. Marin Municipal Water District [Cali – very confusing. Not illustrative of law in any other state]
P owns rock/gravel business downstream of D – municipal water district; D builds dam and result is not enough rocks/gravel for P downstream business owner to continue his business. Claims taking of property. Brought suit of inverse condemnation.
RESULT: P’s rights are not protected; not included in 4 basic riparian rights; What Joslin wants to use the water for is to push gravel/rocks down river so he can mine it for his business – but it is not included in riparian rights; following black letter riparian doctrine, Joslin would lose.
Court says that P’s use is not a reasonable one within the meaning of the law.
RIPARIAN/REASONABLE USE AS A TORT:
· Riparian use action basically same as trespass/nuisance claim – except it is water instead of people
· When neighbor interfering with use of water rights – riparian reasonable use case might be pled as nuisance/trespass claim
· An interference with a person’s reasonable use of their water rights is a tort
RSTMT REASONABLE USE FACTORS:
The determination of the reasonableness of a use of water depends upon a consideration of the interests of the riparian proprietor making the use, of any riparian proprietor harmed by it and of society as a whole: Facts include:
(a) The purpose of the use;
(b) the suitability of the use to the watershed or lake;
(c) the economic value of the use;
(d) the social value of the use;
(e) the extent and amount of harm it causes;
(f) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other;
(g) the practicality of adjusting the quantity of water used by each proprietor;
(h) the protection of existing values of water uses, land, investments and enterprises, and
(i) the justice of requiring the user causing harm to bear the loss
Hall’s Cheat Sheet for Applying Factors (TIP: Go through factors until you find one that allows you to toss/decide the case – only get to last factors if you weren’t able to toss it out earlier)
(1) toss out any water uses that are per se unreasonable [Example: drowning gophers in your yard] Also – uses not included in riparian bundle of rights. Make sure you’re dealing with a legally recognized reasonable use and toss out others
(2) If natural vs. artificial water use – probably won’t have to bother with factors and natural always trumps artificial use (well 9 times out of 10)
Then start considering Restatement factors…
(3) Consider factors (b) suitability and (e) extent and amount of harm [if farm
to supply the inhabitants of a municipality with water for domestic purposes is not a riparian right.'”
· Most common provision for overcoming problems of standard riparian doctrine as a means of assuring adequate municipal water is to clothe the municipal supplier with the power of eminent domain. **Power universally enjoyed and regularly employed by municipalities
MUNICIPALITIES USING EMINENT DOMAIN FOR WATER:
· Power of condemnation of municipality is derived from the state via enabling legislation or “home rule” provision
· Typically lands outside the municipality cannot be condemned w/out special authorization
· For the most part, condemned riparians have no means to defeat condemnation
· Meeting domestic needs of inhabitants universally viewed as “public use”
· **Local law and practice will determine territorial extent of condemner’s authority. The lawful exercise of the power of eminent domain requires that the property be taken only for public use.
Controlling Condemnation of Municipal Water Supplies
NY Environmental Conservation Law Title 15 – Water Supply
**The acquisition, storage, diversion and use of water for domestic and municipal purposes shall have priority over all other purposes
Requires permit to: (a) acquire or take a water supply or an additional water supply from an existing approved source; or (b) to take or condemn lands for any new or additional sources of water supply or for the utilization of such supplies
(1) Whether the proposed project is justified by the public necessity
(2) Whether it takes proper consideration of other sources of supply that are or may become available
(3) Whether the supply will be adequate
(4) Whether there will be proper protection of the supply and watershed
(5) Whether there will be proper treatment of any additional supply
(6) Whether the project is just and equitable to all affected municipalities and their inhabitants and in particular with regard to their provision for fair and equitable determinations of and payments of any direct and indirect legal damages to persons or property that will result from the acquisition of any lands in connection with the proposed project or from execution of the proposed project and
(7) Whether the applicant has developed and implemented a water conservation program in accordance with local water resource needs and conditions
“Regulated Riparianism” – per Prof Hall
· Term for codifying reasonable use standards, which state agencies then evaluate on permit by permit basis; under common law riparianism, your use is reasonable until someone takes you to ct and judge makes decision; in regulated riparianism, the reasonableness of the use is determined up front and permit is or is not issued for the use [Think MWWA]
Hudson River Fisherman’s Assoc. v. Williams
Water supply app approved by agency, contingent on continuous display of need. Reasonable use considerations: A present water supply deficit, local sources not expected to continue and expensive to pump water from lower elevations; anticipated inability to meet peak demand throughout system in short-term future; Projected system-wide inability to meet average demand further into the future. No disagreement about inevitability of need for addtl water supply; Permit contingent on “TRIGGERING MECHANISM” – must show certain demand for 2 years before project can go forward. Downside of project: Likely destruction of a major naturally reproducing trout population due to diversion of most of the flow from Rockland County’s trout stream into Ambrey Pond Resevoir; Ct says oh well; trout are going to have to suffer the consequences of this one –
RESULT: In light of high priority of domestic and municipal water uses, the trout stream must unfortunately give way to predictable and unrelenting growth in human water demands.
Note – cts typically defer to agency decisions.