Western Water Law Doctrine

Transcription

1 Western Water Law Doctrine 1

2 Primary Question How to determine ownership and amount? Unlike many commodities: Naturally renewing Hard to package always on the move Can be degraded for secondary users Highly variable flows in most Western rivers Groundwater is out-of-sight, diffuse and mobile Is it a property right or a possession right? 2

3 Lecture Outline Evolution of western water laws Doctrines Riparian, Equitable Use, Prior Appropriation Hierarchy International agreements Interstate agreements Federal Reserved Water Rights/Prior Approp. 3

4 Early Water Law - Riparian Rights Adapted from English System: Based on abundant available water sources PROPERTY RIGHT Riparian Rights Reasonable use/natural flow undiminished in quantity or quality Correlative Rights shared resource Amount of right determined by proportion of abutting acreage Typical countryside: Durham, UK Lookup/teesd/ 4

5 Early Western Settlers - Equitable use Water viewed as a shared community resource for survival COMMON GOOD Water rights are NOT permanent Allocation decided by mediation: temporal priority need legal title common good Spanish missionaries Mormons arrive at Salt Lake 5

6 Most Western States- Prior appropriation Fundamental Change in thinking: USE & TIME Gold Rush Mining Act of Protects the appropriative rights of miners and other users - Allows you to stake a claim - without ownership of property Amendment of Miners are vested - Protects them from homesteaders Miner pans for gold in CA around the turn of the century historichwy49.com/ photos/miner.jpg 6

7 Prior Appropriation - First in time The essence of the doctrine of prior appropriation is that, while no one may own the water in a stream, all persons, corporations, and municipalities have the right to use the water for beneficial purposes. The allocation of water rests upon the fundamental maxim "first in time, first in right." The first person to use water (called a "senior appropriator") acquires the right (called a "priority") to its future use as against later users (called "junior appropriators"). Source: No Equity: During times of drought, when allocated water exceeds river flow, junior appropriators may not receive their allocation- even if they lie upstream of senior appropriators or if their use is more socially important, economically more valuable or more efficient. 7

8 Priority of Western Water Rights 1.International Treaties 2. Interstate treaties/compacts 3. Prior Appropriation Federal Reserved Rights depends on date reservation was established States rights must be in almost constant use 8

9 International Water Agreements Needed when waters controlled by more than one country Three types: (a) Local customs (b) International treaties (c) Decisions from international tribunals International agreements supersede all other water allocations! When Kansas and Colorado have a quarrel over the water in the Arkansas River they don't call out the National Guard in each state and go to war over it. They bring a suit in the Supreme Court of the United States and abide by the decision. There isn't a reason in the world why we can't do that internationally. - President Harry S. Truman 9

10 Interstate Water Agreements Interstate agreements are needed when waters are controlled by more than one state (e.g. Colorado) Interstate agreements (involve federal government): 1- Congressional apportionment 2- Interstate compacts (treaties) 3- Equitable apportionment (Supreme Court) Interstate treaties always supercede state apportionments 10

11 Federal Reserved Water Rights These are water rights created when federal lands are withdrawn from the public domain (e.g. national parks, wildlife refuges, national forests, Native American Reservations, Military Reservations) Federal Reserved Rights differ from State appropriative rights in that: (a) They are not lost by non-use (b) Priority date is established when land was withdrawn (c) Measure and limit are defined by the amount of water reasonably necessary to satisfy both existing and foreseeable future uses of water for the primary purposes for which the land is withdrawn (d) Beneficial use not required in all cases 11

12 Prior Appropriation Basic Criteria Criteria for perfecting an appropriative right: (a) Priority - First in time, first in right (b) Beneficial use (details to follow) (c) Intent, Diversion, Continuity Applies only to natural streams Excludes groundwater seepage water water which hasn t reached stream Administered on a state-by state basis The Acequia Madre de Tome ditch is one of the oldest in America home.earthlink.net/~andreacp/ 12

13 Prior Appropriation: Beneficial Use Beneficial & Continuous Use: The adequate amount of water necessary for your use There can be no substantive break in usage Thus it is not an unlimited right. However limits are vague: Two parts: (a) Consumptive use: municipal, industrial, agricultural, ecological (b) Reasonable waste: transmission waste, evaporative losses Not req. for Fed. Reserve rights irrigation.jpg 13

14 How does prior appropriation differ from previous methods of water rights? Ownership of property provides no right to water Assumes water flowing naturally is a public resource until allocated Ownership based on amount and time of usage Abandonment will lead to forfeiture No concept of equity or the common good Water can be used anywhere as long as use is beneficial The right is transferable, at least locally 14

15 Priority of Western Water Rights 1.International Treaties 2. Interstate treaties/compacts 3. Prior Appropriation Federal Reserved Rights depends on date reservation was established States rights must be in almost constant use 15

16 Applying Prior Appropriation First, give priority to all treaties and compacts Next, date all Federal rights based on when the land was reserved for Federal uses, Scan remain uses for breaks in continuity; ignore earlier dates if water was not in continuous beneficial use, If a water user increases their use, the additional new use is assigned a priority based on its first use If a water user decreases their use, the lower amount still has the original seniority date 16

17 Practice Problem 1 ID Date of right Amount (acre-ft) Table A: Description of water user A A farmer who has been diverting 10 kaf of water since B An Indian Reservation that was established in 1881 and is asking for an instream right of 10 cfs (~ 7 kaf/yr) C A city that has been using 5 kaf since D E F G A farmer that has been in business since 1878 but who has been only using 10 kaf of water continuously since An International Treaty that was signed in 1944 for 1.5 Maf An Interstate Compact that was signed in 1922 for 7.5 Maf A state park fishery that was authorized in 1913 but has only been using 10 cfs (~7 kaf) since 1915 H A city that has been using 20 kaf of water since 1914 Rank ID 17

18 Questions and Issues to think about How did so many water resources end up in the hands of farmers? Why is it so difficult to transfer water from agricultural uses to municipal? What priority should be given to in-stream uses? 18

19 ADDITIONAL SLIDES 19

20 Basic Problem Areas Water transfers Is water an intrinsic property right, or can it be separable? Riparian vs. Prior appropriation Ground water Why are GW and SW laws different? Federal reserved uses what rights should the government have to appropriate water for military bases, parks, Indian reservations and conservation? In-stream uses how can natural, non-economic uses compete with societal needs? Diffused waters who is responsible for or can take advantage of natural runoff and flood waters? Stored water who owns and controls stored waters? 20

21 Water Law General Water is legally and historically a public resource. Water s importance: sustenance, health, environmental, aesthetics Water conflicts arise due to its irregular distribution in time, space and quality. Most water (supply) law deals with property concepts, vs. contracts, liability Water law has Common law origins, ie. case law vs. legislative enactments 21