Water right

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Water right in water law refers to the right of a user to use water from a water source, e.g., a [1] river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid areas where irrigation is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water and ground water in the same manner, while others use different principles for each.

Contents

Types of water right

Understanding ‘Water Rights’ first requires consideration of the context and origin of the ‘right’ being discussed, or asserted. Traditionally, a water rights refers to the utilization of water as an element supporting basic human needs like drinking or irrigation. Water Rights could also include the physical occupancy of waterways for purposes of travel, commerce and even recreational pursuits. The legal principles and doctrines that forms the basis of each type of water rights are not interchangeable and vary according to local and national laws. Therefore, variations among countries, and within national subdivisions, exist in discussing and acknowledging these rights.

The Right to the Utilization of Water as an Element

Water Rights based on ownership of the land

Often, water rights are based on ownership of the land upon which the water rests or flows. Under English Common law, any rights asserted to 'moveable and wandering' water must be based upon rights to the 'permanent and immovable' land below. [2]

On streams and rivers these are referred to as riparian rights, or littoral rights, which are protected by property law. Legal principles long recognized under Riparian principles, involve the right to remove the water – for drinking or irrigation- or to add more water into the channel – for drainage or effluence. Under riparian law, rights the water is subject to the test of ‘reasonable use’. The judiciary has defined ‘reasonable use’ principle as follows: “the true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.” [3]

Water Rights Based on Previous Use or Prior Appropriation

Where water is more scarce (like in the Western United States), allocation of the flowing water is premised upon prior appropriation. “The appropriation doctrine confers upon one who actually diverts and uses water the right to continue to do so provided that the water is used for reasonable and beneficial uses,” regardless of whether that person owns land contiguous to the watercourse. [4] "[A]s between appropriators, the rule of priority is 'first in time, first in right.'" [5] The modern system of prior appropriation water rights is characterized by five principles:

  1. Exclusive right is given to the original appropriator, and all following privileges are conditional upon precedent rights.
  2. All privileges are conditional upon beneficial use.
  3. Water may be used on riparian lands or non-riparian lands (i.e. water may be used on the land next to the water source, or on land removed from the water source)
  4. Diversion is permitted, regardless of the shrinkage of the river or stream.
  5. The privilege may be lost through non-use. [6]

Beneficial use is defined as agricultural, industrial, or urban use. Environmental uses, such as maintaining a body of water and the wildlife that use it, were not initially regarded as beneficial uses in some states but have been accepted in some areas. [7] Every water right is parameterized by an annual yield and an appropriation date. When a water right is sold, it maintains its original appropriation date.

Community-based allocation of water

In some jurisdictions appropriative water rights can be granted directly to communities. Here, water is reserved to provide sufficient capacity for the future growth of that particular community. For example, California provides communities and other water users within watersheds senior status over appropriative (use-based) water rights solely because they are located where the water originates and naturally flows. A second example of community-based water rights is pueblo water rights. As recognized by California, pueblo water rights are grants to individual settlements (i.e. pueblos) over all streams and rivers flowing through the city and to all groundwater aquifers underlying that particular city. The pueblo's claim expands with the needs of the city and may be used to supply the needs of areas that are later annexed to the city. [8] [9] [10] While California recognizes pueblo water rights, pueblo water rights are controversial. Some modern scholars and courts argue that the pueblo water rights doctrine lacks a historical basis in Spanish or Mexican water law. [11]

Right to Clean Water

Due to the dependence upon clean water, many nations, states and municipalities have enacted regulations to preemptively protect water quality and quantity. This right of a Government to regulate water quality is premised upon protecting downstream navigable waters from contamination which are publicly owned and include the right to receive these waters undiminished under both the riparian and appropriation doctrines. [12]

The Right to Access and Physically Occupy Water

The Commerce Clause of the U.S. Constitution gives Congress the power to regulate and occupy Navigable Waters; this is referred to as a Navigable Servitude. The US Congress has exercised this power in a variety of ways, including the construction of dams, diverting water from a stream and blocking and restricting use of waterways. The servitude is a Federal power, not an individual right.

Public Trust Rights to access and recreate upon navigable-in-fact waters may also exist. These rights are often based on local laws over property held in trust for the public. In the United States, each States holds the land submerged by navigable waters in trust for the public and can establish a public right to access or recreate within these public waterways. Again, this 'water right' is not an individual right, but rather a public right and individual privilege which may include restrictions and limitations based on local laws.

The Fifth and Eleventh Amendment to the U.S. Constitution limits the power of state or federal governments to impinge upon any exclusive use of water by prohibiting the enactment of any laws or regulations that amount to a "taking" of private property. Laws and regulations that deprive a riparian owner of legally cognizable water rights constitute an illegal governmental taking of private property for which just compensation is owed to the water right holder. [13]

Finnish water rights

In Finland, waterbodies are generally privately owned, but Finland also applies the Roman law principle of aqua profluens (flowing water), according to which the freely flowing water in waterbodies cannot be owned or possessed. This means that the owners of waterbodies cannot prohibit diversion of water for agricultural, industrial, municipal, or domestic use according to the provisions of the Finnish Water Law. [14] There also exists public easement over rivers.

History of water rights

In Roman times, the law was that people could obtain temporary usufructuary rights for running water. These rights were independent of land ownership, and lasted as long as use continued. [15] Under Roman law, no land was "owned" by citizens, it was all owned by the "republic" and controlled by politicians. [ citation needed ]

Under English common law all tidal waters were held by the crown and all freshwater streams were included with title to the lands, with full accompanying rights. However, under the riparian doctrine, Landowners had the right to receive water undiminished by upstream landowners.

Over time, rights evolved from being strictly land-based to also include use based, allowing non-landowners to hold enforceable rights to receive clean water. A reasonable use rule evolved in some countries.

See also

Related Research Articles

Water resources law

Water resources law is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is distinct from laws governing water quality.

Riparian water rights is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, and states in the eastern United States.

Prior appropriation water rights is the legal doctrine that the first person to take a quantity of water from a water source for "beneficial use" has the right to continue to use that quantity of water for that purpose.

California Department of Water Resources agency in California

The California Department of Water Resources (DWR), is part of the California Natural Resources Agency. The Department of Water Resources is responsible for the State of California's management and regulation of water usage. The department was created in 1956 by Governor Goodwin Knight following severe flooding across Northern California in 1955, combining the Division of Water Resources of the Department of Public Works with the State Engineer's Office, the Water Project Authority, and the State Water Resources Board. It has its headquarters in Sacramento.

Public trust doctrine public right to certain territorial waters

The public trust doctrine is the principle that the sovereign holds in trust for public use some resources such as shoreline between the high and low tide lines, regardless of private property ownership.

United States groundwater law is that area of United States law related to groundwater.

Navigable servitude is a doctrine in United States constitutional law that gives the federal government the right to regulate navigable waterways as an extension of the Commerce Clause in Article I, Section 8 of the constitution. It is also sometimes called federal navigational servitude.

Robert Gillespie James is a Senior United States District Judge of the United States District Court for the Western District of Louisiana, and was one of the judges involved in a 2006 water rights legal case, Normal Parm v. Sheriff Mark Shumate.

Water trading is the process of buying and selling water access entitlements, also often called water rights. The terms of the trade can be either permanent or temporary, depending on the legal status of the water rights. Some of the western states of the United States, Chile, South Africa, Australia, Iran and Spain's Canary Islands have water trading schemes. Some consider Australia's to be the most sophisticated and effective in the world. Some other countries, especially in South Asia, also have informal water trading schemes. Water markets tend to be local and informal, as opposed to more formal schemes.

The Supreme Court decision in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), reaffirmed that each state in its sovereign capacity holds permanent title to all submerged lands within its borders and holds these lands in public trust. This is a foundational case for the public trust doctrine. The Supreme Court held a four to three split decision that the State of Illinois did not possess the authority to grant fee title to submerged lands held in the public trust as navigable waters.

St. Louis v. Myers, 113 U.S. 566 (1885), was a motion to dismiss for want of a federal question to give jurisdiction regarding Acts that admitted Missouri into the Union while leaving the rights of riparian owners on the Mississippi River to be settled according to the principles of state law and relinquishing to the City of St. Louis the rights of the United States in wharves and thoroughfares, which did not authorize the city to impair the rights of other riparian proprietors by extending streets into the river.

Montana Stream Access Law

The Montana Stream Access Law says that anglers, floaters and other recreationists in Montana have full use of most natural waterways between the high-water marks for fishing and floating, along with swimming and other river or stream-related activities. In 1984, the Montana Supreme Court held that the streambed of any river or stream that has the capability to be used for recreation can be accessed by the public regardless of whether the river is navigable or who owns the streambed property. On January 16, 2014, the Montana Supreme Court, in a lawsuit filed by the Public Land/Water Access Association over access via county bridges on the Ruby river in Madison County, Montana reaffirmed the Montana Stream Access Law and the public's right to access rivers in Montana from public easements.

In United States law, littoral rights are rights concerning properties that abut static water like an ocean, bay, delta, sea or lake, rather than a flowing river or stream (riparian). Littoral rights are usually concerned with the use and enjoyment of the shore., but also may include rights to use the water similar to riparian rights.

United States v. Willow River Power Co., 324 U.S. 499 (1945), is a 1945 decision of the U.S. Supreme Court involving the question whether the United States was liable under the Fifth Amendment for a “taking” of private property for a public purpose when it built a dam on navigable waters that raised the water level upstream to lessen the head of water at a power company’s dam, thereby decreasing the production of power by the company’s hydroelectric turbines. The Court’s opinion is notable because it considers whether the courts will provide a remedy because a property right has been invaded, or whether a property right exists because the courts will enforce it. The question is analogous to the dilemma found in Plato's dialogue Euthyphro.

Water in California Water supply and distribution in the U.S. state of California

California's interconnected water system serves over 30 million people and irrigates over 5,680,000 acres (2,300,000 ha) of farmland. As the world's largest, most productive, and most controversial water system, it manages over 40 million acre feet (49 km3) of water per year.

Water law in the United States refers to the Water resources law laws regulating water as a resource in the United States. Beyond issues common to all jurisdictions attempting to regulate water's uses, water law in the United States must contend with:

Water in Colorado

Water in Colorado is of significant importance, as the American state of Colorado is the 7th-driest state in America. As result, water rights generate conflict, with many water lawyers in the state.

<i>National Audubon Society v. Superior Court</i>

National Audubon Society v. Superior Court was a key case in California highlighting the conflict between the public trust doctrine and appropriative water rights. The Public Trust Doctrine is based on the principle that certain resources are too valuable to be privately owned and must remain available for public use. In National Audubon Society v. Superior Court, the court held that the public trust doctrine restricts the amount of water that can be withdrawn from navigable waterways. The basis for the Public Trust Doctrine goes back to Roman law. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. In essence, the public trust doctrine establishes the role of the state as having trustee environmental duties owed to the public that are subsequently enforceable by the public. There is judicial recognition of this, dictating that certain rights of the public are key to individual common law rights. Judicial recognition of the public trust doctrine has been established for tidelands and non-navigable waterways, submerged land and the waters above them, and preservation of a public interest.

Lux v. Haggin, 69 Cal. 255; 10 P. 674; (1886), is a historic case in the conflict between riparian and appropriative water rights. Decided by a vote of four to three in the Supreme Court of California, the ruling held that appropriative rights were secondary to riparian rights.

The California Water Commission Act of 1913 was the first attempt by the legislature of the state of California to address water rights in a comprehensive manner. The Act was necessitated by the complicated landscape of competing water rights doctrines, demands for reclamation and irrigation, and tension between large landowners and smaller farmers all in the context of California's unique climate and topography. The State Water Commission created by the Act was given the responsibility of permitting and licensing water appropriators post-1914, but had no authority over pre-1914 claims. Ultimately the Act improved the recording of water rights but was inadequate to supervise the distribution of water and left many unresolved issues.

References

  1. Tyler v. Wilkinson, 24 F. Cas. 472, 474 (1827).
  2. Blackstone Commentaries Vol.2, p.18; 3 Kent's Comm. p. 428, et seq. {ninth Report}; Carter v Murcot 4 Burr. 2126 (All Rights "accrue by reason of possession of the ground upon which water lies")
  3. Tyler v. Wilkinson, 4 Mason 397 - 1827, and cited in PPL MONTANA v. MONTANA, 132 S.Ct. 1215 (2012)
  4. United States v. State Water Res. Control Bd., 182 Cal.App.3d 82 (1986)
  5. United States v. State Water Res. Control Bd., 182 Cal.App.3d 82 (1986) (citing Irwin v. Phillips, 5 Cal. 140, 147 (1855)).
  6. Gopalakrishnan, Chennat (1973). "The Doctrine of Prior Appropriation and Its Impact on Water Development: A Critical Survey". American Journal of Economics and Sociology. 32 (1). pp. 61–72.
  7. Western States Water Laws Western States Instream Flow Summary.
  8. City of Los Angeles v. Pomeroy, 124 Cal. 597, 640-41 (1899)
  9. Hooker v. City of Los Angeles, 188 U.S. 314, 319-320 (1903)
  10. City of Los Angeles v. City of San Fernando, 14 Cal.3d 199 (Cal 1978)
  11. Text of STATE of New Mexico, ex rel. Eluid L. MARTINEZ, State Engineer, Plaintiff-Respondent, v. CITY OF LAS VEGAS, Defendant-Petitioner. No. 22,283 is available from:   Findlaw  
  12. Clean Water Act
  13. Kaiser Aetna v. United States, 444 US 164 - Supreme Court 1979
  14. Available online only in Finnish; available in English from email address listed here
  15. Guerin, K (2003). "Property Rights and Environmental Policy: A New Zealand Perspective". Wellington, New Zealand: New Zealand Treasury.

Further reading