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
f page 57 and 58.
a. What constitutes harm? Some harm does not mean harm for the purposes of water law. As a riparian, you are not protected from any loss in property value due to another’s use of shared riparian rights.
b. Remember, natural uses are favored over all others. When looking at ag uses, think of factor F because this is always an option.
c. Frontage is not a factor under the Restatement and this is tough to ignore.
d. There is nothing in the R.2d that says that a stream or river cannot be fully appropriated in the aggregate. However, state law may come into play in order to limit the other uses.
F. Riparianism in Michigan: Michigan Citizens for Water Conservation v. Nestle.
1. Three ways of evaluating surface water uses: (1) Prior Appropriation (not used in Michigan) (2) Natural flow (old doctrine), (3) Reasonable Use.
2. Reasonable Use in Michigan. Any and all reasonable uses are permissible provided that tit does not interfere with other riparian reasonable use.
a. You cannot recover for injury that is incidental to the reasonable use of another riparian.
b. Reasonable use will be determined on a case by case basis.
c. Diversions to non-riparian lands will be considered per se unreasonable.
d. Natural uses are preferred to artificial uses.
e. Competing uses are settled through balancing of the interests. Look at the factors set forth in Dumont:
i. Purpose of the use. Artificial or natural.
¨ Natural uses are those necessary for the existence of the user(s).
¨ Artificial uses merely increase one’s comfort.
ii. Suitability of the source for the use. Look at the nature of the water source (i.e. size and the other uses).
iii. Benefits of the use. Economic (jobs, 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.