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Water Law
Wayne State University Law School
Hall, Noah Donald

Wayne State Law—Water Law—Prof. Hall Winter 2014

1. Interstate dispute (Chapter 3,4,9) (ILLINOIS V. WISCONSIN

a. Start with—When there are conflicting absolute rules, courts have adjudicated water disputes using reasonable, balancing tests to allow both parties an equitable use in water. This can be seen in the evolution of groundwater in Michigan. Beginning as an American reasonable use jurisdiction, it has been held to be a mixture of correlative rights and the doctrine seen in Michels…The entire purpose is ““but whether under all the circumstances of the case the use of the water by one is reasonable and consistent with a correspondent enjoyment of right by the other.”

b. Clerking for SCOTUS addressing an interstate dispute.

c. 3—PRIOR APPROPRIATION

d. 4—GROUNDWATER

e. 9—INTERSTATE WATER POLLUTION

Note:

o Section of Constitution giving SCOTUS original jurisdiction

o JURISDICTIONAL THRESHOLD

§ TO GET TO SCOTUS, must meet 1-3

§ For Groundwater cases

· Before doing RST 858 factors or equitable apportionment (Colorado v. NM)

o Both of these, courts have given precursors

o Nestle—court seeks to maximize water use for all water users and will only remedy significant harms

o Colorado—same as above, conducted by a sovereign, with no other remedies

o Interstate nuisance

o Super factors (MI—on tract vs. off tract, artificial or natural uses)

· RST 850

o Include in here prior appropriation law

o To think about:

§ Equitable apportionment and nuisance treated in same way

§ If differing state laws, then may look at both, look them for guidance. Can refute state law.

2. Policy based question involving everything from public trust, navigability, equal footing, navigability for state title, federal vs. state interests, maybe CWA, maybe other federal stuff (Chapters 1, 6,7,8,11) (GLASS V. GOECKEL)

a. 1—INTRO (pages 1-21)

b. 6—NAVIGABILITY (283-331)

c. 7—PUBLIC TRUST (333-375, GLASS, BOTT)

d. 8—FED WATER INTERESTS (377-391, 400-402, 412-413, 427-436)

e. 11—WATER QUALITY AND WETLANDS (537-594)

3. Michigan attorney—riparian rights from Chapter 2, the public administration of rights from Chapter 5, and Takings from Chapter 14, and Public Trust from Chapter 7 (K & K)

a. 2—RIPARIAN (Value after taking will be based on valuation of similarly situated land for riparian rights)

b. 5—APP. OF MOD. WATER LAW

c. 7—PUBLIC TRUST

d. 14—TAKINGS

Private Water Rights

I. Riparian Law: Common law system of private water rights in the states east of Kansas City

a. Riparian: an owner of fee simple land that is adjacent to a river or lake/touches a body of water and has the following rights: 1) right to the flow of the stream; 2) right to make a reasonable use of the waterbody, provided reasonable uses of other riparians are not injured; 3) right to access the waterbody; 4) use the entire surface of the water for navigation and recreation; 5) right to wharf out; 6) gain or lose land through accretion and reliction; 7) right to water of a certain quality; 8) right to claim title to the beds of non-navigable lakes and streams; 9) an unobstructed view of the water

i. Don’t own the water but have the right to use it (usufructory right)

ii. Restrictions: 1) Duty to refrain from interfering with the rights of other riparians; 2) duty to refrain from violating public rights

iii. Policy justifications for riparianism: 1) limiting water use rights to riparians reduces pressure and demand on the waterbody; 2) proximity: riparians are closest to the water and thus would use it more efficiently than others; 3) riparians have long term interest in it because of aesthetic pleasure, recreational use, and enhancement to property value; 4) easy to determine who is a riparian

iv. Drawbacks: 1) riparians may have no need for it and it can’t be used by non-riparians; 2) more valuble to non riparians; 3) sometimes not that efficient since others can make better use of it

b. Artificial Waterways: human made body of water

i. To determine if an artificial waterway is public, we use a sliding scale that considers: 1) whether it is temporary or permanent; 2) circumstances it was created; 3) mode in which it is used/enjoyed (Aldreson v. Fatlan)

ii. 1): look at if it was made with the intention of becoming permanent

iii. 3): look at how long it has been used for its intended purpose

1. If not using it for a lengthy period of timeàyou’ll lose (Aldreson)

iv. If permanent, created with intention on becoming permanent and has been used with such intention for a considerable period of time, then it can be labeled with the character of a natural watercourse.

v. Policy: reward those that put in time, money, labor and effort to create a waterbody

c. Division and Boundaries of Submerged Land[J1]

i. How to divide a lake

ii. Circular: draw a line from the point where the boundary line meets the lakeshore to the center of the lake

iii. Oblong: a draw a line from the point where the boundary line meets the shoreline to the center line of the lake as nearly perpendicular as possible

iv. Irregular (not either 2): divided in proportion to the shoreline owned

v. Riparians can use their submerged lands for anchoring docks and wharfs, oil and gas drilling, and other purposes. Can’t interfere with navigation of the water or other interests of riparians.

vi. This only applies to non-federal navigable waterways.

d. Conveyances of Riparian Rights

i. Riparian rights cannot be severed/sold but can grant easement, but the easement cannot interfere with the riparian rights

1. Burden is on party seeking the easement

2. A court must determine the scope of the nonriparian owners’ rights as a question of fact, by examining the language of the easement and the surrounding circumstances at the time of the grant. In determining these rights, the court must consider whether the use would unreasonably interfere with the riparian lot owners’ use and enjoyment of property (Little v. Kin)

a. Policy: By allowing easement, you maximize social and economic value of the water body

e. Diffuse Flow and Runoff (Keys v. Romley) – downstream gets flooded and is pissed

i. Common enemy test: common as incident to the use of his own property, each landowner has an unqualified right, by operations on his own land, to fend off surface waters as he sees fit without being required to take into account the consequences to other landowners.

ii. Civil law rule: a person is not liable for the natural flow of surface water from his land, but is liable for unnatural flow of surface waters so as to cause an invasion of another’s interest in the use and enjoyment of his land (think of it as SL)

iii. Equitable balancing: Reasonable if (a) there is a reasonable necessity for such drainage; (b) if reasonable care be taken to avoid unnecessary injury to the land receiving the burden; (c)if the utility or benefit accruing to the land drained reasonably outweighs the gravity of the harm resulting to the land receiving the burden; and (d) if, where practicable, it is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or if, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system is adopted.’

f. Natural Flow Doctrine: each riparian owner was entitled to have the waterbody preserved in its natural state, not noticeably diminished in quantity or impaired in quality. Any diminishment in flow or quality of water could be met with an injunction

g. Reasonable use [J2] doctrine: This is determined by factors such as: the occasion and manner of its application; the object, extent, necessity, and duration of the use; the nature and size of the stream; the kind of business to which it is subservient; the importance and necessity of the use claimed by one party, and the extent of the injury to the other party; the state of improvement of the country in regard to mills and machinery, and the use of water as a propelling power; the general and established usages of the country in similar cases; and all the other and ever-varying circumstances of each particular case (Red River Roller Mills v. Wright)

i. Natural water use is superior to artificial water

1. Natural water use: used for homes

2. Artificial [J3] use: not natural water use (subject to reasonable use)

3. Natural water > artificial b/c 1) such uses are unlikely to consume enough water to injure lower riparians. 2) enforcement of any restriction on domestic uses is difficult. 3) such uses as are necessary to sustain life are bound to be “reasonable.”

h. 2nd Restatement Torts §850: 1) toss out any water uses that are per se unreasonable (drowning gophers) or not w/in riparian bundle of rights. Make sure you’re dealing with a legally recognized reasonable use and toss out others; 2) natural > artificial; 3a) if no substantial harm, might not limit use; 3b) consider factors b) the suitability of the use to the watercourse or lake, and e) the extent and amount of the harm it causes; 4) Consider factors (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; 5) h) the protection of existing values of water uses, land, investments and enterprises, 6) consider (i) the justice of requiring the user causing harm

e right to another

i. Water Marketing: the ability to buy, sell, or transfer your appropriative rights

ii. sell your land and convey appropriative right with it

1. Corollaries: 1) seller can withhold appropriative right; 2) senior rights are more valuable that junior rights

iii. Speculation doctrine: leaving water in the water body until you use it in the future

iv. Antispeculation: To be beneficial, use must be immediate in time.

1. Thus there is no incentive to save water

v. To change [J6] point of diversion, there must be :1) no injury to others; and 2) no enlargement of use (Barron)

1. No injury to others: by transfer the water right, there cannot be a reduction of the availability of water

2. No enlargement: If the primary right is moved and supports more than the initial allotment, there is an enlargement. Ex: he has 2 rights that are restricted to 311 acres. If the primary right is moved to support more than the 311 acres, it is an enlargement.

a. Historical availability and historical consumptive can be used to show whether transfer results in an enlargement

d. Water Marketing in the Modern West

i. Marketing programs that will increase supply include: 1) new water projects; 2) buy rights from the agriculture sector; 3) conserve and reduce demand

1. Cheapest method is conservation but American culture does not like to conserve water.

2. We just make sure that revenue = expenditures, which disincentives conservation

a. Counter arguments: demand hardening: water saved through conversation is used to support new growth. If more people depend on fixed supply of wateràharder to deal with dry periodsàemergency conservation is exhausted

b. Water is fixed and people are competing with the water that is left

c. You can always conserve later, but you need to start new projects now.

ii. Transferring water in the American West

1. Irrigation system leaks H20 and farmers are inefficient when using water.

a. They waste because if they conserve, they may lose it under forfeiture or abandonment

2. Farmers use 80% of water but make very little in revenue, so should sell water to cities that will pay for it.

3. Supply is down, but demand is up

4. Efficient property system requires: 1) complete definition; 2) exclusivity; 3) transferability

a. Problem with a secure water market is that 1) water moves; 2) water is reused

5. Beneficial purpose sucks because 1) it encourages the waste of water and 2) the no injury rule because the change in water use may injure other parties

iii. Water Rights and the Common Wealth

1. Externalities create big problems for water law (the way you use water affects other that depend on your wasted water)

a. Need to redefine private rights so that it takes into account externalities

2. Market theory says put it in the hands private owners, but private owners don’t always take good care of what they own

[J1]Why is this important/what is the purpose of this?

Figure out what waterbodies the riparian owns

[J2]How do these factors interact with the restatement? Which is the reasonable use test?

[J3]Rights of the public to navigable waters: any person to navigate on navigable waters and to make uses incident to navigation such as hunting and fishing.

[J4]Can’t transfer outside of watershed, what does that mean? The area draining into the waterbody

[J5]Diversion ex: build a dam, reservoir, flumes, pipes, pumps, water wheels

[J6]Changes include: 1) point of diversion; 2) place of use/storage; 3) purpose of use; 4) time of use (seasonal/intermittent/continuous)