Review Exercise #6 (Water Rights)
You have now put on your Venice Beach tank top and gone to California, where can work on water-rights issues while also working out at Muscle Beach (haha, you knew that there had to be one more reference to this in a review problem before the end of the semester - just a little humor and fun while we do a lot of serious work in Property). You represent an environmental-justice group from low-income neighborhoods, which are composed primarily of African American, Latino/a, Asian American, and immigrant residents. You are bringing a public trust lawsuit against the Los Angeles Department of Water and Power (LA DWP) for its pumping of groundwater from an aquifer under the Los Angeles River that is preventing the restoration of natural streamflows to the surface waters of the Los Angeles River. The Los Angeles River restoration is meant to bring back the ecological, wildlife, recreational, and public-use values of the river, which has been determined to be navigable by the state and federal governments and by the U.S. Supreme Court (despite what you might perceive about the L.A. River). Assume for purposes of this question that it can be proven that the LA DWP's pumping of groundwater from an aquifer under the Los Angeles River is preventing restoration of the natural streamflows in the surface of the Los Angeles River. In your lawsuit against LA DWP, which of the following is the least likely outcome? A. The Los Angeles Department of Water and Power will have its groundwater rights eliminated due to their effect on the environmental and public-use values of water that is subject to the public trust. B. The public trust doctrine will be applied to the Los Angeles River aquifer groundwater, because the pumping of this water is having a direct and negative effect on navigable waters in the Los Angeles River. C. The State Water Board will have to balance the groundwater rights of the Low Angeles Department of Water and Power with the public's interest in the public-trust resources of the Los Angeles River. D. A long-term workable solution to this problem will likely require consideration of the ecology and special value of the Los Angeles River, public education and engagement, political action, and collaboration among the major stakeholders.
A. The Los Angeles Department of Water and Power will have its groundwater rights eliminated due to their effect on the environmental and public-use values of water that is subject to the public trust.
Which of the following statements is not a correct statement about regulated riparian systems in the United States? A. Florida, Kentucky, and Tennessee require permits for most withdrawals of water from surface waters. B. Florida requires every water user to obtain a permit from their regional water management district and to show that their proposed use will be a reasonable-beneficial use in the public interest. C. Kentucky statutes have substantial exemptions from their requirements that water users obtain a state permit. D. Florida and Tennessee consider the needs of the water basin (or watershed) when making water permit decisions.
A. Florida, Kentucky, and Tennessee require permits for most withdrawals of water from surface waters. The answer is A, which is a false statement. For Florida, permits are required for ALL withdrawals. For Kentucky, permits are required for only SOME withdrawals (the statute provided for substantial exemptions). For Tennessee, permits are NOT required (only notifications) except if the water is being transferred from one water basin to another. B, C, and D are true statements.
You have put on your personally-meaningful cowboy boots and gone to Texas, where you will be working on water-rights issues. Efforts to change or limit the rule-of-capture doctrine for groundwater and to overrule or modify the effects of Sipriano persist. Which function of property law does Sipriano most serve? A. Order and stability. B. Labor-dessert. C. Environmental responsibility. D. Social responsibility.
B. Labor-dessert. The best answer is B. The labor-dessert function of property was represented by the law-journal article on the first day of class: the principle that property law should protect rights in the objects of our efforts, investment, and creativity. In this case, when landowners invest money and effort into drilling wells and extracting groundwater, the labor-dessert principle of property law would recognize their rights to that water.
Meagan owns and operates a brewery located on the banks of the Bland River in an eastern U.S. state that follows the common law doctrine of riparianism and does not have a statutory or regulatory system to govern water rights. Joshua owns and operates several larger breweries all on the banks of the Bland River upstream from Meagan. There is a major drought, and Joshua is using so much water that there is not enough reaching Meagan's downstream land and brewery to allow Meagan to produce beer. Meagan will have to shut down the brewery. Meagan brings a lawsuit against Joshua. Which of the following is the most essential statement to Meagan's pleadings in Meagan's lawsuit against Joshua? A. Joshua is using more than Joshua's proportionate share of the Bland River. B. Meagan, as a riparian landowner, is being harmed by Joshua's unreasonable use of the Bland River waters. C. Joshua is interfering with the natural flow of the Bland River. D. Meagan's brewery began operations several decades before Joshua's breweries began operations, and therefore Meagan has a vested right to sufficient flows of the Bland River to operate Meagan's brewery.
B. Meagan, as a riparian landowner, is being harmed by Joshua's unreasonable use of the Bland River waters.
You are a state supreme court justice who is writing the court's majority opinion to overrule the state's long-time adherence to the rule-of-capture (or absolute ownership) doctrine for groundwater. Which of the following considerations is least relevant to your reasoning? A. The pumping and usage of groundwater by various owners of land overlying a groundwater source affect one another due to competing uses for limited groundwater supplies, pumping rates, and the pressure, depth, and location of wells with respect to each other. B. Integrated management of groundwater is necessary in order to sustain the long-term yields of groundwater sources over time. C. Precedent can be overruled only by the state legislature. D. The rule-of-capture creates incentives for owners of land overlying groundwater sources to pump and use as much groundwater as possible and as quickly as possible so as to secure their water before others do the same. E. Groundwater supplies can diminish over time due to over-pumping (groundwater mining), pollution, and impediments to surface water and runoff filtering into the groundwater.
C. Precedent can be overruled only by the state legislature.
Which of the following statements about the historic public trust doctrine is true? A. The public trust doctrine applies only to navigable waters and their submerged lands. B. The public trust doctrine applies only to tidal waters and their submerged lands. C. The public trust doctrine applies to navigable waters, tidal waters, and the lands submerged under navigable and tidal waters. D. The public trust doctrine applies to all waters and their submerged lands.
C. The public trust doctrine applies to navigable waters, tidal waters, and the lands submerged under navigable and tidal waters.
You are the Executive Director of the State Water Agency, a state-government regulatory agency. Your state has a Natural Resources Clause in the State Constitution, which provides "The State shall manage and conserve the natural resources of the State for its people." You now seek to interpret this constitutional provision as giving your agency the authority to consider all groundwater in the state as being subject to the public trust. Which of the following judicial cases will provide the most persuasive support for your position (assuming that your state is not California, Hawaii, Texas, or Wisconsin)? A. Sipriano. B. Michels Pipeline. C. Waiahole Ditch. D. Mono Lake.
C. Waiahole Ditch.
Which of the following statements is true? A. State permits are required in order to obtain water rights in California, Colorado, and New Mexico. B. Hybrid states with a mix of prior appropriation and riparian doctrines include California, Nebraska, and Utah. C. State permits are required in order to obtain water rights in California, Florida, and New Mexico. D. The riparian doctrine has ceased to be very relevant in the hybrid states of Oklahoma, Oregon, and Texas.
C. State permits are required in order to obtain water rights in California, Florida, and New Mexico.
The following dispute involves the Swole River in a western U.S. state that follows the common law doctrine of prior appropriation and that does not have any statutes or regulations that can be used to govern or resolve this particular dispute. Contrary to its name, the Swole River usually has a very limited amount of streamflow, as it is located in an arid/desert area with limited rainfall and snowmelt. In 1900, a ranch - the Swole Cowboy Ranch - was started by Cameron several miles away from the Swole River. Cameron began diverting water from the Swole River and transporting it through ditches to the ranch to provide water for a very large livestock operation and also for watering many acres of crops. The Swole Cowboy Ranch has been diverting and using water from the Swole River for its ranch operations continuously for well more than a century, except for a few months during the Great Depression in the 1930s. Connie now owns the Swole Cowboy Ranch. In 2000, Adam bought a large amount of land on the banks of the Swole River and opened a new resort, The Swole Boot Camp is a kind of exercise and fitness boot-camp/resort experience for vacationers, with both indoors and outdoors exercise facilities, several swimming pools, steam rooms, water stations, hotel, and lodges. Adam began diverting and using substantial amounts of water from the Swole River to provide all the water needs of the Swole Boot Camp resort. There is now a severe drought and only enough water in the Swole River to meet the needs of either the Swole Cowboy Ranch or the Swole Boot Camp resort. Connie and Adam have sued each other. What is the most likely outcome? A. Connie (Swole Cowboy Ranch) and Adam (Swole Boot Camp) will have to share the water 50% each. B. Connie (Swole Cowboy Ranch) has an absolute right to all the water because of first-in-time priority. C. Adam will win because the Swole Boot Camp is located on the Swole River and is making a use that is more beneficial to a modern economy. D. Connie (Swole Cowboy Ranch) will be entitled to all the water if the Swole Cowboy Ranch isn't wasting any of its diversions.
D. Connie (Swole Cowboy Ranch) will be entitled to all the water if the Swole Cowboy Ranch isn't wasting any of its diversions. The correct answer is D. This statement incorporates Connie's senior priority and the requirement that the use be for a beneficial use, which means no waste of the water diversions. This is the correct statement of law, even though practically, enforcement of the anti-waste rule has historically been weak and uneven.
Which of the following groundwater rights doctrines requires both: 1) all the overlying landowners to share the water with each according to some sort of equitable principle; and also 2) the landowners' use of the water will be limited to reasonable uses? A. Rule of capture. B. American reasonable use. C. Correlative rights. D. Restatement (2nd) of Torts reasonable use.
D. Restatement (2nd) of Torts reasonable use. The correct answer is D. The Restatement (2nd) of Torts reasonable use doctrine requires both shared allocation and reasonable use. The rule of capture doctrine (A) doesn't require either shared allocation or reasonable use. The American reasonable use doctrine (B) requires reasonable use but not shared allocation. The correlative rights doctrine (C) requires shared allocation but not reasonable use.
Which of the following is a correct statement about legal regimes that apply to water rights in U.S. states? A. Prior appropriation doctrine applies to surface water rights regimes in most eastern U.S. states. B. Riparian doctrine applies to groundwater rights regimes in most eastern U.S. states. C. Prior appropriation doctrine applies to groundwater rights regimes in most western U.S. states. D. Regulated riparianism applies to surface water rights in most eastern U.S. states.
D. Regulated riparianism applies to surface water rights in most eastern U.S. states.
You are the Executive Director of the Sunny Valley Groundwater Conservation District, a regional governmental entity. You seek to use legal and regulatory authority to restrict groundwater pumping by landowners and water users so that the groundwater can be conserved and managed sustainably for future uses of many types. The property doctrine of groundwater rights in your state is unclear, and you are preparing a brief in a case before your state's supreme court that is likely to resolve the uncertainties over which doctrine applies to groundwater in the state. Which doctrine will you urge the court to adopt? A. Rule of capture. B. American reasonable use. C. Correlative rights. D. Prior appropriation. E. Restatement (2nd) of Torts reasonable use.
E. Restatement (2nd) of Torts reasonable use.
