Water law is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, but has also become influenced by environmental law. Because water is vital to living things and to a variety of economic activities, laws attempting to govern it have far-reaching effects.
History
The history of man's relation to water illustrates varied approaches to the management of water resources. The Etruscans had a deep knowledge of hydrology and hydraulics, a knowledge which they put to good use in their many land drainage schemes. The lower lying portions of Rome such as the area between the Capitol and Velia was formerly marshland. Settlement of the low-lying ground would never have been a possibility without the hydraulic engineering skills of the Etruscans. This took place around 625 BCE when, according to archaeological evidence a network of drainage channels was dug through the marshy ground, and at the same time, the stream that separated the two hills of the Capitoline and Palatine was regulated, its embankments were strengthened, and it was finally covered over.
Without enclosure and drainage, more than half of the area of the present-day Netherlands would be flooded with every high tide, every wet season, or permanently. The struggle for the country's survival has largely determined its appearance and left numerous marks on it. In the triangle between the cities of Amsterdam, Haarlem and Leiden the 45,000-acre (180 km2) Haarlemmermeer polder demonstrates an extraordinary step in the scale of land drainage. After centuries of preliminaries, a lake of unprecedented size was drained in three years (1849- 1852) and transformed into valuable agricultural land.
In 1899, construction of the first Aswan Dam was begun to address agricultural and energy shortages exacerbated by population growth in Egypt and the Sudan. Completed in 1902, its height was raised in subsequent building campaigns of 1907-12 and 1929-34. With the signing of the Nile Water Agreement by Egypt and the Sudan in November 1959, work began on the second Aswan dam. The second dam submerged much of Lower Nubia displacing 90,000 Egyptian peasants and destroying monuments and archaeological sites from the First to the Third Cataracts of the Nile River. The Aswan High Dam captures floodwater during rainy seasons and releases the water during times of drought. The dam also generates more than 10 billion kilowatt-hours every year. The project prevents the natural silting process which enriched Egyptian agriculture and farmers must now use about one million tons of artificial fertilizer as a substitute for natural nutrients that once fertilized the arid floodplain.
Difficulties of water rights
Water has unique features that make it difficult to regulate using laws designed mainly for land. Water is mobile, its supply varies by year and season as well as location, and it can be used simultaneously by many users. As with property (land) law, water rights can be described as a "bundle of sticks" containing multiple, separable activities that can have varying levels of regulation. For instance, some uses of water divert it from its natural course but return most or all of it (eg. hydroelectric plants), while others consume much of what they take (especially agriculture), and still others use water without diverting it at all (eg. boating). Each type of activity has its own needs and can in theory be regulated separately. There are several types of conflict likely to arise: absolute shortages; shortages in a particular time or place; diversions of water that reduce the flow available to others; pollutants or other changes (such as temperature or turbidity) that render water unfit for others' use; and the need to maintain "in-stream flows" of water to protect the natural ecosystem.
One theory of history, put forward in the influential book Oriental Despotism, holds that many empires were organized around a central authority that controlled a population through monopolizing the water supply. Such a hydraulic empire creates the potential for despotism, and serves as a cautionary tale for designing water regulations.
Water law involves controversy in some parts of the world where a growing population faces increasing competition over a limited natural supply. Disputes over rivers, lakes and underground aquifers cross national borders. Although water law is still regulated mainly by individual countries, there are international sets of proposed rules such as the Helsinki Rules on the Uses of the Waters of International Rivers and the Hague Declaration on Water Security in the 21st Century.
Long-term issues in water law include the possible effects of global warming on rainfall patterns and evaporation; the availability and cost of desalination technology; the control of pollution, and the growth of aquaculture.
Water law in the United States
In the United States there are complex legal systems for allocating water rights that vary by region. These varying systems exist for both historical and geographic reasons. Water law encompasses a broad array of subjects or categories designed to provide a framework to resolve disputes and policy issues relating to water:
- Public waters, including watercourses, lakes, and under modern law, wetlands
- Other surface waters—generally water that flows across the land from rain, floodwaters, and snowmelt before those waters reach watercourses, lakes and wetlands
- Groundwater, sometimes called percolating underground water
- Public regulation of waters, including flood control, environmental regulation—state and federal, public health regulation and regulation of fisheries
- Related to all of the above is interplay of public and private rights in water, which draws on aspects of eminent domain law and the federal commerce clause powers
- Water project law: the highly developed law regarding the formation, operation, and finance of public and quasi-public entities which operate local public works of flood control, navigation control, irrigation, and avoidance of environmental degradation
- Treaty Rights of Native Americans
The law governing these topics comes from all layers of law. Some derives from common law principles which have developed over centuries, and which evolve as the nature of disputes presented to courts change. For example, the judicial approach to landowner rights to divert surface waters has changed significantly in the last century as public attitudes about land and water have evolved. Some derives from state statutory law. Some derives from the original public grants of land to the States and from the documents of their origination. Some derives from state, federal and local regulation of waters through zoning, public health and other regulation. Non-federally recognized Indian tribes do not have water rights.
Common law sources of water law
The United States inherited the British common law system which develops legal principles through judicial decisions made in the context of disputes between parties. Statutory and constitutional law forms the framework within which these disputes are resolved, to some extent, but decisional law developed through the resolution of specific disputes is the great engine of water law.
These disputes arise in a number of contexts. When the state, local or federal government takes private property that has water rights associated with private ownership, the value of that property is significantly affected by its water rights. And, properties located along public waters are quite common, because of the importance of public waters to commerce, the environment, and recreation. These taking cases represent a major source of the law defining the limits of private rights in water and public rights. A second context for the development of water law arises from disputes among private parties over the extent of their respective water rights. A landowner upstream seeks to cut off the flow of surface water downstream, and appropriate these surface waters for its exclusive use. The downstream owner claims that the upstream landowner has appropriated water that belongs to its property. A downstream owner seeks to stop the flow of excess water that will otherwise flood its land thereby increasing flood damage on the upstream owner. Each party claims that the other's conduct interferes with the rights associated with their respective ownership of the property. A third context for water law arises from disputes regarding flooding or other invasions of private property by water. In these cases, the private party claims that private or public actions have damaged its private property, and the court must decide the nature of the respective rights of public and private parties arising from the alteration of the hydrology of a watershed.
It is important also to recognize that a private party may "own" certain water rights as compared to other private parties, but may not "own" those rights as against the state, federal or local government, because those rights may be subject to governmental regulation, or because the rights may be subject to the superior ownership of the public. For example, putting aside federal statutes regulating the subject, a party located on a river with hydrological potential would have property interest in using that land for a mill, or for the generation of electricity. That potential could significantly increase the value of the land and would impact the sale price amongst private parties. However, if the state or federal government took that same property by eminent domain, the landowner might not be entitled to compensation for the loss of riparian rights, if those rights are deemed subject to the superior rights of the public.
Riparian Rights
The Eastern states (all those east of Texas, except Mississippi), follow the riparian doctrine, which permits anyone whose land has frontage on a body of water to use water from it. These states were the first settled by Europeans (and therefore most influenced by English law) and have the most available water. The Supreme Court has explained the evolution of riparian principles in United States v. Gerlach Livestock (1950)
In the middle of the Eighteenth Century, English common law included a body of water doctrine known as riparian rights. As long ago as the Institutes of Justinian, running waters, like the air and the sea, were res communes-things common to all and property of none. Such was the doctrine spread by civil-law commentators and embodied in the Napoleonic Code and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law.
The riparian concept developed fully in those portions of the United States where lands were amply watered by rainfall. United States v. Gerlach, supra. The Court's decision continues:
The primary natural asset was land, and the run-off in streams or rivers was incidental. Since access to flowing waters was possible only over private lands, access became a right annexed to the shore. The law followed the principle of equality which requires that the corpus of flowing water become no one's property and that, aside from rather limited use for domestic and agricultural purposes by those above, each riparian owner has the right to have the water flow down to him in its natural volume and channels unimpaired in quality. The riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or nonriparian purposes. In working out details of this egalitarian concept, the several states made many variations, each seeking to provide incentives for development of its natural advantages.
A number of rights may be listed as riparian rights. One court, in McLafferty v. St. Aubiin, 500 N.W.2d 165 (Minn. App. 1993), has listed the following:
Riparian rights are generally described as the rights to use and enjoy the profits and advantages of the water. See78 Am.Jur.2d Waters § 263 (1975). The riparian owner has a right to make such use of the lake over its entire surface, in common with all other abutting owners, provided such use is reasonable and does not unduly interfere with the exercise of similar rights on the part of other abutting owners. Johnson v. Siefert, 100 N.W.2d 689, 697 (1960). Riparian rights include the right to build and maintain, for private or public use, wharves, piers, and landings on the riparian land and extending into the water. State v. Korrer, 148 N.W. 617, 622 (1914). They also include such rights as hunting, fishing, boating, sailing, irrigating, and growing and harvesting wild rice. In re Application of Central Baptist Theological Seminary, 370 N.W.2d 642, 646 (Minn.App.1985), pet. for rev. denied (Minn. Sept. 19, 1985).
In addition to these rights, riparian rights may include the right to access the water, the right to use or consume, the right to use the ground of non-public waters, and the right to use land that is added to the extent of the adjoining property by accretion.
Prior Appropriation
Most western states, naturally drier, generally follow the prior appropriation doctrine, which gives a water right to whoever first puts water to beneficial use. Colorado water law is generally looked to as authority by other Western states that follow the prior appropriation doctrine. Water law in the western United States is defined by state constitutions (i.e. Colorado, New Mexico) statutes, and case law. Each state exhibits variations upon the basic principles of the prior appropriation doctrine. Texas and the states directly north of it; the West Coast states, and Mississippi have a mixture of systems. Hawaii uses a form of riparian rights, and Alaska uses appropriation-based rights.
In some states Surface water, lakes, rivers, and springs, are treated differently from ground water underground water that is extracted by drilling wells; however, In other states surface and ground water are managed conjunctively. For example, in New Mexico, surface and ground water have been managed together since the 1950s. This trend comes from a growing scientific understanding of the formerly mysterious behavior of underground water systems. For instance, gradual contamination of some water supplies with salt has been explained with the knowledge that drawing water from a well creates a gradual seepage into the well area, potentially contaminating it and surrounding areas with seawater from a nearby coast. Such knowledge is useful for understanding the effects of human activity on water supplies but can also create new sources of conflict.
A variety of federal, state, and local laws govern water rights. One issue unique to America is the law of water with respect to American Indians. Tribal water rights are a special case because they fall under neither the riparian system nor the appropriation system but are outlined in the Winters v. United States decision. Indian water rights do not apply to non-federally recognized tribes.
Federally Recognized Indian Tribes and Water Law
Tribes within Reservations
Reserved Native American water rights are commonly known as "Winters rights", determined by the Winters and Arizona v. California cases. [1]
1. Rights are defined by federal law
2. Establishment of a reservation by treaty, statue or executive order includes an implied reservation of water rights in sources within or bordering the reservation
3. Based on date, users with prior appropriation dates under state law take precedence over the Native American rights, but those with later dates are subordinate
4. Quantity of water reserved is the amount sufficient to irrigate all irrigable land on the reservation
5. Rights are not lost due to non-use
Indian tribes have sole rights to water only after they have determined practicable irrigable acreage (PIA). According to legal scholar Bruce Duthu, tribes must prove that the requested amount of water is needed for their land and construct facilities to save it.[2]
Example: Winters v. United States
Winters v. United States (1908) involved the Fort Belknap reservation, created by the 1888 agreement with the federal government. This agreement made one boundary of the reservation a part of the Milk River, but it did not mention water rights to that river. Afterwards, non-Indian settlers off the reservation constructed dams in the river that interfered with the tribe’s agricultural use of the water. The settlers claimed appropriative rights after the reservation had been established, but before the tribe began to use the water. The Supreme Court held that the water rights were automatically reserved by the 1888 agreement that created the reservation. The Court assumed the Indians would not reserve lands for farming without also reserving the water that would make such farming possible.[3]
Example: Arizona v. California
In Arizona v. California (1963), the Court had to determine water rights of tribes along the Colorado River whose reservations were established by both statute and executive order. The Court held that the statute or executive order could not have meant to establish reservations without also reserving the use of water for the productivity of the tribes. Therefore, the Court held the water rights were effectively reserved at the time of the reservation’s creation. Arizona v. California also concerned the quantity of water reserved. The Supreme Court ruled that the tribes were entitled to enough water to irrigate all the “practicable irrigable acreage” on the reservation.
Non-Native American purchaser's rights
1. A Native American allotee is entitled to the share of the reservation's water that is needed to irrigate their land.
2. When a Native American sells their allotment to a non-Native American, the purchaser acquires the allotment's reserved water rights.
3. The priority date of those rights remains the date when the reservation was created.
4. Non-Native American allotees can lose their water rights to non-use.
Winters rights as property
Winters rights coming from a treaty or statute creating a reservation are property to which title is recognized. When a reservation is created by an executive order, "the tribal title is unrecognized for Fifth amendment purposes."[4]
The Arkansas River flows through the northeastern part of Oklahoma
Tribes Not Within Reservations
Cherokee Water Rights
This court case defined the place of Native American tribes in the modern court. It involved water rights in the case of the Cherokee nation. Winters Rights do not apply to the Cherokee nation because there is no actual Cherokee reservation. During this July 2009 proceeding, the State of Oklahoma sought monetary damages and injunctive relief against the Tyson Foods Corporation, due to the injury to the Illinois River Watershed from poultry waste. The defendant, Tyson Foods Inc., moved to dismiss the case because the Cherokee Nation was not involved, though they were a required party. The ruling on this motion helped determine the standing of the Cherokee Nation concerning water rights in their region.
The Court, in order to determine if case could proceed without the involvement of the Cherokee Nation, applied Rule 19. The first step in this process determined if the Cherokee Nation was a required party, meaning that complete relief could not be offered, their absence would impede a person’s ability to protect the interest, or more obligations could occur due to the interest. In this court ruling, it was determined that the Cherokee Nation has substantial interests, such as seen in their Environmental Quality Code which shows interest in protecting the Illinois River and vindicating any pollution. The Cherokee Nation also has an interest in recovering remedies for any injuries, in regulating and taxing things concerning the environment of the Cherokee Nation. Furthermore, the Cherokee Nation claims their water rights derived from federal law and treaties were unaffected by statehood. In entering into cooperative agreements with tribes, which would be necessary to resolve the issue of water rights (especially in the case of the Cherokee Nation and Tyson Foods) the state of Oklahoma must meet explicit requirements.
1. The Governor is authorized, as well as any other named designee, and is allowed to enter into cooperative agreements on behalf of the state with federally recognized tribes within that state if an issue of mutual interest is being addressed.
2. Approval of the Secretary of the Interior is required if the cooperative agreement dealing with issues of mutual interest involves trust responsibilities.
3. Any cooperative agreement specified and authorized by paragraph 1 that involves the surface/groundwater resources of the states or which in whole or in part apportions the ownership of those resources, shall become effective if the Oklahoma Legislature grants consent to authorize such cooperative agreement.
The United States historically promised the Five Civilized Tribes that their lands would not be included without their consent in the territorial limits or jurisdiction of a state. This doctrine, known as the Five Tribes Doctrine, according to scholar Jennifer Pelfrey:
"Southeast Oklahoma is unique from other tribal reservation areas because of the Five Tribes doctrine. The federal government removed the Five Civilized Tribes to specific unsettled lands within the Indian Territory. At that time it also granted federal land patents to the Five Tribes and the Tribes were authorized to issue tribal patents in the case of a transfer of their tribal land. The doctrine holds that this "permanent homeland" includes rights to all the water within it, not just enough to fulfill the land's purpose, as under the Winters doctrine. In addition, the Supreme Court has held in past decisions that the federal government conveyed specific lands directly to Indian tribes, and that a state that later enveloped tribal land did not inherit rights to the water on that land. The Tribes also point to Oklahoma's 1906 Enabling Act, federal legislation which says that the State Constitution shall not limit the rights held by the Indians of Oklahoma. The Oklahoma State Constitution, as adopted in 1907, further provides that non-Indian inhabitants of the State do not have rights to Indian lands. The Five Tribes doctrine emphasizes that under federal legislation treating the Five Tribes differently from other tribes on reservations, the Choctaw and Chickasaw Tribes in southeastern Oklahoma would own all the water on their lands, and would not be subject to state authority as to its use or non-use."[5]
The Winters ruling also applied to this case, because a ruling in 2007 determined that water rights were reserved even in riparian jurisdictions.
The ruling in this motion determined that the state did not have proper standing to proceed with this case without the Cherokee Nation's involvement.
Water Project Law
Water project law is the branch of state and federal law that deals with the construction, management, financing, and repair of major water projects, including public drainage, irrigation, flood control, navigation and other projects. Some of these projects are constructed and managed by state and local government. But many are constructed and managed by special local improvement districts, which are special political subdivisions of State government.
Water project law has had, and continues to have a significant role in the management of important water resources. For example, agricultural drainage, much of which is now responsible for maintaining a significant infrastructure results largely from these local districts or other entities. Drainage in the United States occurred in two primary developmental periods, during 1870-1920 and during 1945-1960. By 1920, more than 53 million acres (210,000 km2) out of a total of 956 million acres (3,870,000 km2) of US farmland had received some form of drainage. The United States Department of Agriculture (USDA), 1982 Natural Resources Inventory (NRI) inventory identified about 107 million acres (430,000 km2) of wet soils as being prime or adequately drained, of which 72 percent was then cropland. (Economic Research Service, 1987.) Often, state projects are constructed under the mantle of local water project authorities, using special federal funds appropriated for these purposes. Often the local entity must agree in return for the original federal funds to maintain the project indefinitely with local funds, derived either from taxes or special assessments.
Although there are unique state law features to water project instrumentalities, there are many features in common. Many of these districts are special improvement districts endowed by state law with the ability to collect revenues from lands that are benefited by the improvement. Often these assessments are in the form of special assessments which are proportional to the increase in value afforded the benefited land by the project. Or, the local improvement district may be afforded the power to levy special taxes, or to levy charges in return for the privilege of receiving the use and benefit of the project.
Some districts are governed by a board of elected officials. Voting rights may be based upon population within the district or in some cases based on the ownership of benefited lands. In some states, some districts are governed by existing local government entities, such as county government, but under special statutory authority. Statutes governing these districts govern the authority to levy assessments, charges, or taxes. They determine the obligation of the authority to maintain. In some cases, establishment of the project, or the district, affords benefited landowners statutory rights to insist on continued maintenance of the project if statutory criteria are met. For example, a certain number of landowners might be required to petition, and make a showing that the conditions for maintenance have been met. The statutes typically provide a method of seeking judicial review of the decisions made by the district in question.
Major Legal Cases in American Water Law
Water law in the European Union
For countries within the European Union, water-related directives are important for water resource management and environmental and water quality standards. Key directives include the Urban Waste Water Treatment Directive 1992 [1] (requiring most towns and cities to treat their wastewater to specified standards), and the Water Framework Directive 2000, which requires water resource plans based on river basins, including public participation based on Aarhus Convention principles. See Watertime — the international context, Section 2.
Further reading
See also
References
- ^ Canby, William C (2004). "American Indian Law in a Nutshell", p. 431-432. West, a Thompson business., Minnesota. ISBN 0-314-14640-7.
- ^ Duthu, N. Bruce (2008). "American Indians and the Law," p. 106-107. Viking Penguin, New York, ISBN 978-0-670-01857-4.
- ^ Canby Jr., William C. American Indian Law in a Nutshell. St. Paul: West Publishing Co., 2004. Pg. 429.
- ^ Canby, William C (2004). "American Indian Law in a Nutshell", p. 440. West, a Thompson business., Minnesota. ISBN 0-314-14640-7.
- ^ Pelphrey, Jennifer. "Oklahoma's State/Tribal Water Compact: Three Cheers for Compromise. 29 Am. Indian L. Rev. 127. Pp. 127 -150.
- Hildering, A. (2004), International Law, Sustainable Development and Water Management, Eburon Academic Publishers, Delft, The Netherlands, 2004 [2]
- International Law Association Water Resources Committee (2004), Final Report presented at the Association's 2004 Conference in Berlin [3]
- UNEP (2002), Vital Water Graphics — An Overview of the State of the World's Fresh and Marine Waters. UNEP, Nairobi, Kenya. [4]
- Sax, J. L., et al.. Legal Control of Water Resources: Cases and Materials (4th edition). Thomson/West (2006), ISBN 978-0-314-16314-1; ISBN 0-314016314-X.
External links
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