A. Overall themes in water law.
1. Blend of common law and statutes. This is one area of environmental law that leaves a great deal to CL.
2. Water is both private property and a public good. This creates a lot of tension because people who own it want to do what they want with it and the people who use it feel differently.
3. Changes rapidly to incorporate environmental issues and interests. Balancing of environmental with economic.
4. This course is limited to fresh water. Salt water does not have the same value as fresh water.
5. Science plays a big part in water law.
B. Major water uses.
1. Domestic. Drinking, irrigation, dishes, laundry, etc. This area is treated differently than other areas. It is put on a pedestal.
2. Commercial & industrial water use. This is of tremendous importance because many bizzes moved here because of water supplies.
3. Ag. Crops and livestock. Use in the area is tremendous.
4. Mining. All types of mining require a lot of water. This is a smaller one.
5. The three major uses:
a. Energy generation. All energy generation is tremendously dependant on water.
b. Shipping. Shipping of goods and navigation. This is often a trump use.
c. Environmental uses. Aesthetics, habitat, etc. Hard to integrate this with other uses.
C. Water law. It’s kind of big deal out west because they don’t have it. Michigan only suffers from sporadic shortages. However, the legal system cannot simply ignore water resources.
D. Course outline.
1. Riparian law. Surface water. Property owners adjacent to the body of water. This is what we study for Michigan. Three weeks.
2. Western water law. Surface water. Premised on first in time, first in right. Very different then eastern water law. Covered briefly- two weeks.
3. Ground water law. Major source of water and its use is increasing. An evolving area of the law.
4. Public rights to water. Environmental considerations run into competing water uses.
5. Most water resources are not contained within state boundaries. However, these resources are not controlled by federal law.
I. Riparianism. Under such a system riparians have access to water- those who own the land that abuts the water. Litoral and riparian will be used interchangeably for this class although litoral usually refers to lakes.
A. Why use this system? Tradition (comes from English CL). Easy. Defining by real property ownership à this is an area of the law where the law is very well defined (piggy backing). There is a fairness aspect…arguments can be made both ways. If we give water use rights to the people who are adjacent to the body of water, there is a built in efficiency related to the movement of water. It is not efficient to pipe water for long distances. The most fundamental justification is that access must be limited somehow. If everyone could access it, then the resource could potentially run out. The people living on the water have also paid for it. Use of the water for recreation and aesthetic system.
B. Why not? Limits access. Fairness. Trespass. Fewer people can use it for economic development. Sometimes wasteful. Elitist because it allocates resources based on who owns property.
C. What rights do you get?
1. Domestic uses. (sometimes referred to as natural uses; this goes on pedestal, absolute), artificial uses (irrigation, manufacturing, recreation à this is considered _).
2. Recreation. In order to boat, you need the right to wharf. This is the right to surface water.
3. Ownership. This is a sticky subject because owning land on water does not mean that you own the water. There are circumstances where ownership is more absolute (i.e. you own all the land surrounding the water) You, along with the other people on the body of water, have a use right (usufructuary=right of use).
D. Reasonable use.
1. Natural flow doctrine. Prior to reasonable use, the natural flow doctrine applied. This meant that a riparian could not do something to impact the flow of the water downstream. This worked when the water was used almost exclusively for domestic use. The problem came with industrialization because mills, irrigation, factories all need water and will alter the flow of the water…this doctrine would have halted economic development. The exception would be for the last guy on the line. Severely restricts the uses of upstream owners.
2. What is reasonable? The use of a riparian must be reasonable with respect to the correlative ability of other riparians to make simultaneous reasonable use of the water course.
a. Martin v. Bigelow. (1827) Plaintiff built a mill that impacted the use of the water by a mill downstream. Downstream owner uses self-help to take down the upstream gate. Under the natural flow doctrine, the upstream mill’s use would not be permissible. Instead the case applies English CL, stating that the upstream use is a reasonable use of the water for the riparian.
b. Snow v. Parsons. (1856) Upstream user was using the stream for disposing of refuse. Downstream owners complain. Using a stream for refuse was determined to be a reasonable use. The amount of frontage does not come with additional rights. Occasionally this consideration will slip in, but it is technically not a point for decision making. Reasonableness is still informed by custom.
c. Pyle v. Gilbert. (1980) Plaintiff owned mill. Sued Defendant because he granted the right to use the water to another, non-riparian, landowner. Plaintiff was there first. Under GA law, the diversion is not permissible. Which use is more reasonable? The case is remanded with a note that the use of water for irrigation is not per se unreasonable. But you still cannot divert for non-riparian (off tract) use.
d. Joslin v. Marin Municipal Water District. (1967)There is a lot in this case that we do not need to worry about, ignore California Constitution. Plaintiffs owned land downstream of dam constructed by the municipality. Defendant is a government actor, and the Plaintiffs sued alleging that the municipality condemned their land. This is common in water law, this is a takings issue but it does not matter for the purposes of analysis. There are competing uses. Downstream you have a gravel pit and the reduced flow of water deposits less rock and gravel. Upstream
, costs) and social (fishing, navigation, conservation, etc.).
iv. Extent/amount of harm. The application and the impact on the quantity and quality of the water
v. Necessity of the amount of harm. Is there something else that the party can do to minimize the impact.
vi. Any other factor that may bear on the reasonableness of the use.
II. Surface Usage on Artificially Created or Enlarged Waters.
A. Natural bodies water. A riparian has the rights to all the surface water. The right is absolute and shared by all.
B. Man Made Lakes. A different rule applies to the surface water in a manmade lake. The right to use the surface is not automatic on a man-made lake. See Anderson v. Bell. Anderson lived downstream from Bells, he had an easement to flood the land. Bell lives upstream and holds the rights to beneficial use; however, Anderson can discontinue use at any time. Anderson floods and then Bell uses the property. The lower court applied the same principles as applies to natural bodies of water and finds for Bell. The Florida Supreme Court reverses holding that the same rule does not apply to manmade bodies of water. Two reasons: investment expectations and protecting property rights because Anderson retained the right to discontinue flow.
C. Lake Levels. See Glen Lake-Crystal River Watershed Riparians v. Glen Lake Association. Courts set the level of the lake at 596.75 inches. The level of the lake was controlled by a dam at the mouth of the Crystal River. The Crystal River Ripahrians are looking to protect their property rights in terms of maintaining a flowing river; they want to mimic the natural flow of the river- higher in the summer and lower in the winter. The Glen Lake Ripiarians want to maintain static levels in the lake. The trial court found for the plaintiffs (Crystal River Riparians). On appeal, the Michigan Court of Appeals upheld the trial court.
MCLA 324.30707(4). Lists factors to be considered in determining normal lake level. Why isn’t this statute given to the agency in this case? The judgment setting the level of the water predates the case. THIS IS IMPORTANT BECAUSE THE EXAM FACT PATTERN WILL BE IN MICHIGAN.
(4) In a determination of the normal level of an inland lake, the court shall consider all of the following:
(a) Past lake level records, including the ordinary high-water mark and seasonal fluctuations.
(b) The location of septic tanks, drain fields, sea walls, docks, and other pertinent physical features.
(c) Government surveys and reports.
(d) The hydrology of the watershed.