Water law

Prior appropriation doctrine

"First in time, first in right" In dealing with water rights, the prior appropriation doctrine states that water rights are determined by priority of beneficial use. This means that the first person to use water or divert water for a beneficial use or purpose can acquire individual rights to the water.

Factors used in regulating use from a recharging aquifer

1) Aquifer harm 2) Salt water intrusion 3) Contaminants

Texas has exceptions to the capture rule:

1) Can't cause subsidence due to negligence 2) Can't waste *waste - water that would irreversibly and irretrievable lost for further beneficial use.

Factors in determining reasonableness

1) purpose of the use 2) suitability of the use to the watercourse, lake, or aquifer 3) the economic value of the use 4) the social value of the use 5) the extent and amount of harm it causes 6) the practicality of avoiding the harm by adjusting the method of use 7) the practicality of adjusting the quality of water used by each party 8) the protection of existing values of water uses, land, investments, and enterprises 9) the justice of requiring the user causing the harm to bear the loss.

Texas landowner rights under Capture Rule

1) right to drill a well on the property to any depth and size 2) ownership of the water captured and brought to the surface 3) right to make nonwasteful use of the water 4) right to sell or lease the water 5) right to export water beyond boundaries of land or of the aquifer 6) right to reserve the groundwater when the land is sold.

3 part test to the Dormant Commerce Clause

1) the regulation must pursue a legitimate state end 2) the regulation must be rationally related to that legitimate state end 3) the regulatory burden imposed by the state on interstate commerce must be outweighed by the state's interest in enforcing its regulation.

Cline v American Aggregates Corp

American Aggregates pumped out water from an aquifer to get at some limestone to extract; 26 landowners said it dewatered and polluted their wells Supreme Court of Ohio, at the time, followed the Absolute Ownership Doctrine for groundwater - the owner of the soil owns everything beneath it Court ruled in favor of Cline and landowners and rejected Absolute Doctrine for Reasonable Use Doctrine citing advancements in scientific understanding of aquifers.

Riparian water rights

Bases water rights upon ownership of land that is adjacent to a waterway and allows the riparian owner to make reasonable use of the adjacent water for beneficial purposes; correlative and time-dependent

Martin v City of Linden

City of Linden wanted to pump from an aquifer (for city use) shared by a private land owner. Courts ruled against Linden because of the Reasonable Use Doctrine Possible harm (salt water intrusion) not worth the risk especially since they could purchase adequate water from a neighboring city

Two limits on state power:

Commerce clause and congressional action

City of Corpus Christi v City of Pleasanton et al.

Corpus pumped water from Atascosa County with 63-74% "waste" Courts determined it wasn't waste - legislature accounts for loss associated with a natural conduit (rivers and streams) *water goes back into the hydrogeological cycle PLUS it's being used off-site

TCEQ v Texas Farm Bureau

Dow Chemical makes "priority call" on Brazos during a drought; TCEQ issues the call, suspending all junior water rights to DOW (after 1942) except municipalities TFB said TCEQ was in violation of Texas Water Code by ignoring prior appropriation TCEQ lost initially and then appealed; lost again in the Corpus Christi Court of Appeals Surface water is Texas is owned by the state who then permits rights based on prior appropriation (seniority)

Pro Rata Share

Equal share per party

Winter's Doctrine

From Winters v US - fed gov used the date of reservation creation for Indian rights to water; said they have right to water necessary to the reservation. "implied" water rights to indian sovereign nations. Fed courts look at exact purpose more closely on non-tribal lands.

Michigan Citizens for Water Conservation v Nestle Waters North America Inc.

Great Spring Waters of America Inc. bought land next to a dam impoundment (sourced by the Dead Stream) and wanted to build a bottling plant. Court found that the combined pumping rate of Nestle bottling plant would interfere with other riparian rights of the landowners. The amount Nestle wanted to remove was harmful and unfair to the plantiff and therefore in conflict with reasonable use.

Baker v Oreida Foods

Idaho; Pumping from aquifer faster than recharge rate "mining" First time to interpret Ground Water Act as relates to slowly recharging aquifer Not enough water to satisfy all wells PLUS Oreida's summer irrigation Result: Senior wells rights were modified and junior wells were enjoined - junior appropriations were delegated to superior gov entity; *Correlative rights were denied to Oreida*

Higday v Nickolaus

Kansas city court of appeals, Missouri Several owners use the same GW resource for livestock and domestic purposes; made a deal with nearby City of Columbia for municipal water. Columbia then wanted to pump GW in excess of its recharge rate for the purposes of transporting and selling the water further from town - would bring the water table down 10ft. Court assesed under Reasonable Use Doctrine - decided any landowner (even the municipality) could not pump GW and transport it for sale if it resulted in hindering GW water access to other owners

Spear T. Ranch inc. v Knaub

Nebraska Supreme Court Spear Ranch uses surface water in Pumpkin Creek to irrigate crops and water livestock; argues that the groundwater and surface water are interconnected Knaub's pumping GW deprived Spear of necessary surface water for irrigation and sought injunction of Knaub's pumping under prior appropriation claims. Court ruled in favor of neither party and used the Restatement of Torts since the water so obviously hydraulically connected. Prior appropriation only applies to the surface water regulations in Nebraska and common law of reasonable use for groundwater. Restatement of Torts combines reasonable use with exemptions that draw from correlative rights with the intent to balance the competition between surface and groundwater users. - While the appellees' did cause significant harm to Spear's ranch, they failed to state or prove that actions caused unreasonable harm.

Unconfined aquifer

Nothing separating it from atmospheric pressure

Dormant Commerce Clause

Restricts the states from discriminating against, or unduly burdening, interstate commerce. *3 part test

Practical Irrigable acreage

Soil suitable for the crop? Pheasable? Can you even bring the water there? Measured at the time the lawsuit is filed, not when the reservation was established.

Supremacy clause

State laws must be consistent with federal laws

Parker v Wallentine

Supreme Court of Idaho *Dilemma of the shallow well* - Wallentine drilled a 200 ft deep well very close to a neighboring landowner's well (Parker) at 71 ft deep. Pumping water through Wallentine's well all but dries up Parker's well - Parker filed an injunction restraining Wallentine's pumping until the Department of Water Resources determined a reasonable pumping rate. Court decided in favor of Parker citing the Doctrine of Prior Appropriation since Parker's rights were awarded senior to Wallentine's. Parker's right includes the right to have water available at historic pumping levels or to be compensated for expenses involved in deepening his well so that Wallentine can pump at his maximum awarded right level.

Edwards Aquifer Authority v Day

Texas Supreme Court deciding if GW "in place" is included in above ground ownership and if the GW can be taken by the state for the public use without compensation. Day (private landowner) wanted to pump GW from Edwards Aquifer on newly purchased land using wells that were used by previous owners at the same pumping rate as they were allowed (700 acre feet/year including use of a nearby lake that is fed by the aquifer's springs). EAA awarded Day only 14 ac/ft of GW based on historical use. Supreme court upheld ruling based on the fact that Texas maintains "rule of capture" but still subject to the Conservation Amendment which gave EAA responsibility for regulating for the protection of wildlife and public welfare.

Denis v Kickapoo Land Co

Two landowners (one up and one downstream) use Kickapoo Creek for livestock and agriculture Upstream landowner drilled into land adjacent to springs to pump GW for additional irrigation. Downstream owners said he didn't have the right to do that since the GW was obviously connected, destined for the surface, and therefore property of the state. Court asserted the Rule of Capture. Ruled in favor of upstream landowner.

Sipriano v Great Spring Waters of America, Inc.

US Supreme Court Ozarka pumped an excessive amount of GW that severely depleted the wells of Bart Sipriano and others. Sipriano sued for damages and an injunction of the pumping; essentially an abandonment of Texas's Capture Rule for the Reasonable Use Doctrine instead. Supreme Court sided with Texas upholding the Capture Rule - Texas said they did not deem it appropriate to insert itself in the regulatory mix by substituting the rule of reasonable use for the current rule of capture.

The conflict of correlative rights

Would require surface and groundwater to be uniform in regulation. Difficult to know existing state of the system (volume and changing rates) California is the only state to apply correlative rights; Utah did but rejected it, Nebraska still has it to some extent

River (surface water) defined as:

confined by a bed and banks

Confined aquifer

has permeable layer above it

Disgorgement

penalty paid by the state for "knowingly" violating a compact of water rights with another state.

5 main rules for regulation

rule of capture, reasonable use on site, reasonable use off site, correlative rights, permit system/prior appropriation

Conjunctive Use *includes 4 things*

the coordinated use of surface and groundwater resources, generally by water suppliers, with the goal of maximizing the yield of limited water resources. Includes: 1) the blending of ground and surface water 2) using groundwater as a reserve source during drought 3) Natural aquifer recharge occurs when precipitation and stream flow passes soils to reach aquifers 4) Artificial aquifer storage and recovery - man made infrastructure to recharge aquifer. ex: San Antonio Water Systems Twin Oaks Aquifer Storage and Recovery Project & Kerrville Aquifer Storage and Recovery

Conjunctive management

the integrated regulation of surface and groundwater by the state. Incorporates conjunctive use but also includes an integrated legal regime of water rights allocation, regulation, evaluation, planning and monitoring.

McArren Amendment

water right disputes with federal interests have to be fought in state courts. The federal gov (BLM, etc.) can apply for water rights just like any other entity