General Water Law

Rapanos v. United States

- Michigan developer filled wetlands in his property - Supreme Court had to decide whether Clean Water Act protected small isolated wetlands - Army Corps of Engineers had to devise guidelines to determine when wetlands should be protected by law - Said that wetlands are NAVIGABLE

Owner's rights to change nature of watercourse depend on...

- Navigability of stream - Deed description - type of stream change

Three periods of federal interstate allocation of water

1. 1787 - 1902 2. 1902 - 1969 3. 1969 - present

What are the 2 water law systems?

1. Eastern states (wet): Riparian system 2. Western states (dry): Doctrine of Prior Appropriation

Examples of natural use

1. Household purposes & drinking 2. Watering of domestic animals

Name the two Watering stock classifications

1. Natural 2. Artificial

When were Riparian rights introduced & how

1827 - Introduced into the American Legal System in the Justice Story opinion in Tyler vs. Wilkinson

What 2 doctrines oversee water in the west?

A mix of 1. Riparian & 2. Doctrine of Prior Appropriation In some, it exists side-by-side. In some, it's hybridized. Other states have their own water laws.

Riparian Right

A right to use a portion of the flow of a watercourse that arises by virtue of ownership of land bordering on a river, stream, or lake - Owner must own land bordering on the water body - Water body must be natural & navigable (Ex. Lakes)

Accretion

Addition of land - New land belongs to landowner

Natural Flow Doctrine was Adoptied by whom?

Adopted by English courts & several American jurisdictions

Harris vs. Brooks

An individual may be STOPPED from using water if it is unreasonable. It is necessary to consider - What the use is for - Extent of use - Duration of use - Necessity - Application - Nature & size of stream - Several uses of stream - Extent of injury to one proprietor & benefit to the other

Public Trust Lands & Navigable streambeds are owned by who?

Are owned by the state (The title is retained by state)

What is the Similarity between natural flow & reasonable use doctrine?

Both recognize that users have equal rights to the reasonable use of surface waters

If stream is non-navigable

Check conveyances & limits in the deed

Irrigation

Considered an artificial use Can only use when there is a surplus of water above quantities for domestic use

Until the 1970s

Constitutional authority over water resources thought to be limited to navigable waters

Gibbons v. Ogden (1824)

Distinguished between navigable & non-navigable waters & Case equated commerce power w/ the protection of navigation

Administrative procedures for this Doctrine are well developed in the West

Doctrine of Prior Appropriation

Reasonable Use Doctrine

Doesn't care about impairment of natural flow or water quality Allows the reasonable full use of water in any way that is beneficial to the riparian owner IF this does not interfere with the beneficial uses of others (courts decide)

1969-present

Federal focus toward environmental protection & water conservation

Current water boundary issue between states?

Georgia said they made a mistake with boundaries early on. They're saying they own a part of Tennessee (that has water on it).

Commerce Clause

Gives fed government absolute interest over ALL sources of activities related to interstate commerce (Government can pretty much regulate ALL water in relation to commerce)

Other riparian rights

Have the right to use land for hunting, fishing, swimming, and other recreational activities BUT these rights accompany ownership of the land adjoining the water AND are subject to reasonable regulation by the state

Reclamation Act of 1902

Intended to give feds scientific management of natural resources

1902-1969

Irrigation in western states - Reclamation Act of 1902

How does congress allocate the water?

Little congressional involvement unless states disagree on allocation Congress reserves the right to alter, amend, or repeal.

Avulsion

Loss of land - Boundary DOES NOT change Can occur if stream floods

(Under Riparian) What are Upstream owners allowed to do with the water?

May use water for natural purposes or extraordinary needs only if it doesn't diminish the volume of water & has NO material effect on water Must also be on riparian land

NEPA

National Environmental Policy Act; 1969 federal act that mandates an environmental assessment of all projects involving federal money or federal permits

Under common law riparian cases, there is a difference between...

Natural & ordinary uses AND Artificial or extraordinary uses

Name the Doctrines under the Riparian Doctrine

Natural Flow Doctrine Reasonable Use Doctrine

General water law covers what bod(ies) of water?

Natural bodies of water ONLY

Define Watering stock - Natural use

Necessities of life - Can exhaust all water

If a physical change occurs in the stream, how is the ownership boundary changed?

New boundary depends on whether the change is - Accretion - Avulsion

Artificial use

Not used for necessities of life - The owner CANNOT take all of the water

Doctrine of Prior Appropriation limits

Only applies in the absence of constitutional or statutory modifications Use must not be - Discontinued or abandoned Limits specified by: - Constitution, Statutory, & Common Law

Riparian Doctrine

Owners & occupants of land adjoining a watercourse have certain rights to USE THE WATER Are riparian owner(s)

1787-1902

Promotion & protection of navigation - Furthered promotion of interstate commerce

The Clean Water Rule: Definition of "Waters in the US"

Published in the Federal Register in 2015 Stated that ALL waters in the US belong to the US (Navigable or not) - Quickly refuted

Tyler vs. Wilkinson

Resulted in Riparian Rights 24 F. 472 (C.C.D.RR I 1827)

Under the Natural Flow Doctrine, riparian owners are entitled to what?

Riparian owners entitled to ordinary flow of water along land in natural state... if NOT sensibly diminished in quantity or impaired in quality (Can't be diminished or polluted)

Supreme Court ruling on wetlands

Ruled that wetlands attached to water bodies are NOT navigable - EPA & Dept. of the Army rescinding "Waters of the US Definition" - 2018

Artificial use examples

The improvement of trade or profit

Why are there two different water law systems?

They are based on the availability of water Some western states have a hybridization of both systems

Define Watering stock - Artificial use

Trade or profit - CAN'T exhaust all water Ex.) Commercial irrigation

Natural use

Use for the necessities of life - Able to reasonably use the water EVEN IF flow is altered/depleted & this harms/leaves none for others

Reasonable Use Doctrine in Eastern states

Used this until they developed their OWN water use regulations And they view natural flow doctrine as impractical Why? Developing communities need water for consumption & will need to diminish it

Water rights

Water is a form of property You can possess water rights in: - Corpus of the water (body) - Land adjacent to or beneath waters (Determined under jurisdictions)

Harris vs. Brooks defines

What is considered reasonable

Doctrine of Prior Appropriation

Whoever begins using the water first has the right to continue using the water

When can owners diminish water use?

With reasonable use under certain circumstances

Navigable Waters

You CANNOT block a navigable stream People CANNOT say you are trespassing on a navigable stream (This can be proved by finding old maps)

If you own land on BOTH sides of a non-navigable stream then you own what?

You OWN that streambed

If you own land on ONE side of the non-navigable streambed then what do you own?

You own up to the stream's center

The navigable waters definition

is "clouded by uncertainty" is very broadly defined

Where is the Doctrine of Prior Appropriation prominent

west of the Mississippi