Water Rights

Under prior appropriation, the requirement of an actual diversion (taking the water out of the waterway for use offstream) served dual purposes of 1) putting the world on notice of the _______ and _______ of the appropriator's water rights 2) and creating incentives for the ______________ ____________ and _______________ ____________ uses of the water offstream according to a world view that saw instream flows as essentially wasteful

1) time; quantity 2) economically productive; humanly consumption

Courts do not use the riparian law doctrine to allocate quantities among the many landowners along the waterway, but instead, only determine the extent to which a challenged use is both 1) _______________ and 2) ________________ to the plaintiff(s)

1) unreasonable 2) harmful

What are the three legal regimes according to geography for surface water?

1. Eastern States: Riparianism (& regulated riparianism) 2. Western States: prior appropriation (mostly now with regulation) 3. Hybrid States: both systems

What are the 5 possible regimes for groundwater? (Doesn't depend on geography)

1. Rule of Capture 2. American reasonable use 3. Correlative rights 4. Prior appropriation 5. Restatement (Second) of Torts reasonable use

What are the five possible doctrines which vary by state for groundwater?

1. Rule of Capture 2. American reasonable use 3. Correlative rights 4. Prior appropriation 5. Restatement (Second) of Torts reasonable use

What are the seven public/government interests in waters?

1. State ownership doctrine 2. Most water rights are usufructuary (right to use), not possessory (can't actually possess the water) 3. Federal navigation servitude 4. Federal, state, and local environmental legislation and regulations 5. Federal and Indian reserved water rights 6. Laws allocating interstate and international waters 7. Public trust doctrine

Watersheds

Areas of land that drain to a common body of water. all of us live, work, and play in watersheds

How do riparian landowners enforce their rights?

Bringing claims against competing riparian landowners in which they allege harm from the competing users' "unreasonable" uses of shared waters

Riparian landowners' rights are "____________" or "_____________". All riparian landowners on a water body must share its water with co-equal rights to the reasonable uses of those waters.

Correlative; Reciprocal.

Riparianism is a modified form of ____________ water law

English

Prior appropriation is what type of system?

First-in-time, first-in-right (priority) system

This state, which has long been considered at the forefront of regulated riparianism, requires any water user to obtain a permit from 1 of 5 regional water management districts. These districts consider substantial amounts of evidence at permit hearings to determine if the proposed use is "a reasonable-beneficial use ... [that] will not interfere with any presently existing legal use of water and is consistent with the public interest."

Florida

This state's statutes require a permit from a state agency for the pumping of water from any surface, spring, or groundwater source, but provide significant permit exceptions for domestic, agricultural, and electric generation uses of water

Kentucky

Water Law

Legal regimes to control, allocate, manage, and protect water resources

The 100th Meridian states under a hybrid jurisdiction are ...

North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Texas

Under the correlative rights doctrine, when are off-tract uses permitted for groundwater?

Off-tract uses are permitted only to the extent that "surplus waters" exist that exceed the amounts withdrawn and used on-tract

Regulated riparianism requires anyone seeking to withdraw water to obtain a _____________ from a ________ _________ ______________ agency.

Permit State water regulatory

Areas of Water Law

Property law, Environmental Law, Public infrastructure and Disaster Law

Water rights under prior appropriation were obtained by doing what?

Putting water to a beneficial use

Sipriano (Texas Supreme Court 1999) recognizes what about the rule of capture?

Recognizes the problems caused by the rule of capture and that it was adopted expressly because the courts then didn't understand groundwater (it was considered "secret and occult").

Michels Pipeline (Wisconsin Supreme Court 1974) declared what about the rule of capture?

Rule of capture is unworkable: leads to waste, harms, conflict, etc.

This state requires only that users of large quantities of water notify a state agency of their uses, except if water is to be diverted from one basin (watershed) to another, for which a permit is required

Tennessee

The rule of capture for groundwater may not have been officially overruled or repealed in some jurisdictions, but it is arguably applied only in which state?

Texas

When one riparian landowner brings a claim against a competing riparian landowner, who has the burden of proof? and what must they prove?

The plaintiff must prove both unreasonableness of the competing use and injury to his/her riparian rights from the unreasonable use

What are percolating waters?

The water interspersed among the pores and interstices of subsurface soils and rock formations, including aquifers (underground reservoirs)

TRUE or FALSE Some states have moved towards integrated management and permitting for both surface waters and groundwater.

True

TRUE or FALSE Traditionally, a landowner could even pump groundwater maliciously or wastefully without liability, but those rules were rejected in the states that initially adopted the rule of capture.

True

True or False: Riparian landowners' water rights are considered appurtenant to their land

True. Water rights come with the land.

Which pacific coast states have a hybrid jurisdiction?

Washington, Oregon, California.

Ground Water

Water beneath the ground (underground aquifers; water beneath the bed of a river or stream)

State Ownership Doctrine

Water owned by the state. Rights to use the water, but not possess or exercise dominion/control over the water

Riparianism is developed in _______ _________ (humid) Eastern states

Water plentiful

Runoff

Water running over land

An appropriator meeting all the criteria obtains a right to a) use the quantity of water for a _______________ use b) a right that is superior to ___________ ____________ c) a right that is inferior to ____________ ______________

a) beneficial b) junior appropriators c) senior appropriators

The fundamental elements of an appropriation right to water are: a) ____________ to put water to a ____________ use b) an actual ___________ of previously unappropriated water from a surface waterway; c) ________________ of water to a beneficial use; and d) relatively _______________ use of the water

a) intent; beneficial b) diversion c) application d) continuous

The requirement that appropriated water be put to a beneficial use has various components. a) _____ of use b) _________ of water used c) The beneficial use doctrine has a __________: the anti-speculation doctrine. Investors or speculators in water (can/cannot) acquire rights for future uses if they do not put the water to beneficial use now

a) type b) quantity c) corollary cannot

The basic problems of groundwater management today are: a) conflicts between two or more nearby ______ due to effects of one on another (related, for example, to pressure, rates of pumping, or well depth); b) _____________ _________ (i.e., the collective pumping of groundwater at rates that exceed recharge); c) surface land uses that introduce __________ into groundwater or impede ____________ of precipitation into the soils; and d) the effects of surface water uses and groundwater uses on one another and barriers to _____________ _______________ of the two systems.

a) wells b) groundwater mining c) pollutants; filtration d) integrated management

Stare decisis

adherence to precedent

For a prior appropriation permit, _______ _________ is also required for changes in the type, timing, or location of use, the location of diversion or return flow, and the transfer of water rights.

agency approval

Why is it important that some states have moved towards integrated management and permitting for both surface waters and groundwater?

because groundwater is integrally interconnected with surface water in many ways originally not comprehended by scientists, legislators, or judges.

Why was the rule of capture of groundwater rejected by many states, even in the nineteenth century?

because it incentivizes a race among landowners to pump the most water as quickly as possible and to use high-capacity wells, eventually to the degradation of the groundwater source.

Many appropriative water right permitting systems authorize or require the state agency or official to reject any permit application that is not ____________ with the public interest or public welfare

consistent

Riparian owners (do/do not) lose their rights to use or divert water if they fail or cease to exercise them, because the rights accompany the land ownership

do not

These factors within The Restatement (Second) of Torts § 858 balance the equities, hardships, and relative social benefits of various water uses, and (do/do not) require or prefer that the water be used on-tract.

do not

While the concept of "first in time, first in right" applies in a general sense, senior appropriators in groundwater generally (do/do not) have the right to prevent all new wells that might affect their rights in any way

do not

The requirement of continuous use (does/does not) mean daily use, but abandonment and forfeiture will result in the loss of water rights.

does not

Under the American reasonable use doctrine, the owner of land overlying a groundwater source has the right to pump as much ___________ as he or she can put to a ____________ ______ on the overlying tract (appurtenancy or on-tract requirement).

groundwater reasonable use

Hybrid jurisdictions historically adopted both riparian doctrine and prior appropriation doctrine, because these are states in which there are both ________ and ______ conditions

humid arid

Federal navigation servitude

if water is navigatory, federal government has an overriding interest to make sure there aren't any obstacles and that the water is navigable

Many western states now recognize appropriation rights in ________ flows—rights to specific quantities of water to remain in the waterway without letting junior appropriators deplete them—under some circumstances. These rights might be obtained by ________ _________ or conservation organizations for environmental purposes, or might afford __________ _____________ to historic human uses of water for economically valuable activities like watering livestock, transporting logs, or navigating commercial vessels.

instream state agencies legal recognition

Riparianism is a _______ ______ system

land based

Wetlands

lands that are inundated with water some portion of the year (marshes, swamps)

Historically, riparian landowners were entitled to the ____________ ______ of the surface waters flowing by or through their lands. This view gave way to the dominance of the ___________ ____ ____________ to accommodate economic development and population growth.

natural flow reasonable use doctrine

Historically, the riparian landowner was required to use the water on the riparian land and had (the/no) right to divert it to other, non-riparian land or to use it outside of the watershed. Over time, off-tract or out-of-watershed uses have been allowed if consistent with the public __________ or if co-riparians cannot prove __________ _________ from the use. Some states have abandoned the on-tract requirement entirely.

no interest actual injury

All western states, except Colorado, have __________ systems and requirements in order to secure and use water rights.

permit

Anyone seeking to secure a prior appropriation right must apply for a ________ from a state agency or official and must show at an administrative hearing that the proposed use meets _____________ ___________ criteria.

permit specified statutory

A number of states require __________ from a state agency or regional water management district before one can pump groundwater, although these permit systems exist in the __________ of common-law recognition of property rights in groundwater.

permits shadow

Prior appropriation rights to divert water form a system of __________ according to when a person or entity diverted the water

priority

Safe Drinking Water Act

protects quality of drinking water

In a riparianism state, the owner of land bordering on or straddling a body of water - known as riparian land - has a right to ______________ _____ of water flowing past or through his or her property

reasonable use

The Restatement (Second) of Torts § 858 contains a set of "___________ _____" factors for non-liability for groundwater pumping and use that is similar to the set of factors applied to ____________ _______.

reasonable use riparian rights.

Under prior appropriation of groundwater, rights to pump and use groundwater have __________ ___________ and therefore protection in accordance with the time at which the pumping and use first began.

relative superiority

Only California, Nebraska, and Oklahoma still have a mix of riparian and prior appropriation rights; all others recognize historically exercised _________ _______ but have been applying ONLY _________ ____________ to new rights for many years.

riparian rights prior appropriation

Surface Waters

rivers, lakes, streams, and creek

Under the correlative rights doctrine, all landowners _______ _______ to the available water from a groundwater source over which they own land on an _________ basis, such as pro-rata according to acreage overlying the groundwater source.

share rights equitable

The concepts of prior appropriation of groundwater are usually applied by _______ _________ reviewing grants of new permits to ensure that existing permittees or pumpers are ______________, but in the context of the overall rational management, maximization of groundwater supplies, the public interest, and policy choices about appropriate yields

state agencies protected

Surface water rules govern underground streams in defined channels and the subflow of surface streams beneath streambeds because they could be more easily _________ and _______________ into surface water regulation.

studied integrated

As a practical matter, the order of priority (prior appropriation) may not be followed strictly in some circumstances do to ...

the location of appropriators on the stream; the role of "return flows" from upstream appropriators; state policies to promote the public interest; preemptive federal interests in water; and incentives for ad hoc solutions to temporary shortages. (Not law, but be aware)

The doctrine of prior appropriation developed out of who/what?

the norms of water usage among miners, the pressures from farmers and ranchers security water rights for use on lands far from surface water, and the goals of population growth and economic development that depends on water development projects and offstream uses in the West

Why have many Eastern states adopted regulated riparianism?

they have increasingly seen water scarcity and conflict, growing demands for water, and natural and human-created changes in climate and hydrology; thus they need to regulate water use

The law governing rights in groundwater developed quite separately from the law governing surface waters, because courts viewed the locations, quantities, and properties of water beneath the surface to be __________ and difficult to ________.

unknown regulate

Prior appropriation is developed in ________ _________ Western states

water scarce

In regard to groundwater, the rule of capture doctrine provides that the owner of land overlying a groundwater source may pump as much as he or she wishes from the source (with/without) liability to any neighboring or nearby landowners who also own land over the source.

without