Water Law and Water Rights CEE 6490 David Rosenberg “Whiskey is for drinking, water is for fighting over.” --Mark Twain

Learning Objectives Today Describe roles of water law for different users Provide examples of different types of water law Differentiate major doctrines of water law Explain how groundwater is included in water law List federal laws and powers that affect water use Thursday Compare U.S. and international water law Identify and Assess water institutions CEE 6490

Motivation Why have law(s)? Laws in the U.S. are: Other religious, cultural, traditional approaches CEE 6490

Roles for water law(s) As individual urban dweller (culinary; secondary) As agricultural grower City of Logan; North Logan Field Irrigation company Weber Basin Water Conservancy District; MWD of Salt Lake City and Sandy Utah’s Colorado River water allocation Colorado River water allocation to Mexico CEE 6490

Types of Law Constitutional Legislative Administrative Case (judicial decision) Scales Federal State Local CEE 6490

Major Doctrines of Water Law Surface water Riparian (adjacent to surface water) Appropriation (use of water) Groundwater Absolute ownership Reasonable use Correlative rights Appropriation CEE 6490

Riparianism Lakes, natural channels, underground rights Contiguous to land (water right can not be separated from land ownership; transfer of land = transfer of right) Use Reasonable (economic need; benefit to society) — OR — Maintain natural flow (quantity and quality before and after use) No injury to downstream users Shared priority Share shortages equitably according to proportion of land ownership History in English Common Law (1850s); Eastern U.S. CEE 6490

Appropriation Water flowing in natural channels; subterranean streams “First in time, first in right” – no land ownership required Senior appropriator entitled to full amount of reasonable and beneficial use Use it or lose it (due diligence) Shortages shared unequally: senior rights receive all their water before junior rights receive any Transfer of right apart from land History in U.S. western expansion; Manifest Destiny; mining development CEE 6490

How do the riparian and appropriation doctrines differ? CEE 6490

Groundwater Law Types of groundwater Tributary: groundwater and surface water are connected Non-tributary: surface and groundwater are not connected GW law in many states and countries assumes non-tributary groundwater => This is insane! CEE 6490

Types of Groundwater Law Absolute ownership (English) Each landowner has absolute right to GW Ignores groundwater physics Unlimited right to pump Tragedy of the commons Correlative rights Landowners have co-equal rights to reasonably use a shared GW source Similar to riparian SW rights Reasonable use (American) Landowner makes reasonable use of GW on overlying land Reasonable = any traditional use (may differ from SW use) Prior appropriation Operates the same as SW Tributary GW--wells permitted as part of SW rights system

Groundwater with no recharge: an example in Southern Jordan …that will never be recharged… …this place is dry!!! …will deplete groundwater sources… …very dry!!! …really, really, really dry!!! … or could be conveyed 300 km to here …irrigation… CEE 6490

Federal Powers – Give examples Commerce power: regulate commerce between states Proprietary power: over federal public land (33% of all US land), can sell/give away resources Welfare power: tax and spend Treaty-making power: U.S. Senate must ratify Judicial power: U.S. Supreme Court resolves lawsuits among states Appoints a “Special Master” who investigates claims, collects data, makes recommendations Court reviews and decides based on “equitable apportionment” Compact power: states enter into with consent of Congress CEE 6490

Federal Reserved Rights (post 1850) Reserved lands no longer open to homesteading National Forests, Parks, military installations, Wilderness Areas, Native American (Indian) Reservations, etc. Water reserved with land to accomplish reservation goal Winters Rights (1908, Winters vs US) Ft. Belknap Indian Reservation, Montana over Milk River dispute Water rights attached to reserved land Date to when land is set aside (1888) Maintained even if not exercised Once quantified (difficult!) often most senior appropriation Why significant? CEE 6490

Other Federal Rights Aboriginal rights (US vs Klammath and Modoc Tribes, 1938) Many Native American tribes do not have reservations But have lived on and irrigated same land for ~700 years (time immemorial) Very senior water rights; do not expire with non-use Pueblo Rights Ripened with Spanish settlement prior to U.S. forming (1600s) Examples: New Mexico Los Angeles, CA San Diego, CA CEE 6490

Transboundary (interstate) Resolution methods Judicial decision by US Supreme Court (e.g.: AZ vs. CA, 1963) Interstate Compacts Preferred by Fed and US Supreme Court For water allocation, pollution control, flood management, regulatory or development purposes Examples: Colorado River Compact (CA, AZ, NV, UT, NM, CO, WY; 1922) Lower / upper basin allocations Delaware River Basin Compact (DE, PA, NJ, NY; 1961) 100-year development: hydropower, flood protection, water conservation, recreation, wildlife, minimum flow to prevent seawater intrusion Potomac River Compact (MD, VA; 1785; 1958; 1970) Boundaries; fisheries; commission Bear River Compact (ID, UT, WY; 1955) – water allocation CEE 6490

Potomac River Basin State boundary is low-tide mark on Virginia side Pennsylvania State boundary is low-tide mark on Virginia side Maryland W. Virginia Virginia Adapted from Wikipedia (2008) Virginia Places (2008) CEE 6490

International Water Rights/Law Do not exist in practice Are not enforceable Embodied in basic principals by international bodies Equitable and reasonable utilization and participation Regular exchange of data and information Cooperation among riparian nations Cause no significant harm to other basin states Develop institutions for joint management Nations often make self-serving doctrine-based claims Often practically achieved through treaties CEE 6490

Syria’s dual roles (prior to 2011) Euphrates River Middle (weak) riparian between Turkey and Iraq Appeals to Turkey to release originating water Yarmouk River Upper (strong) riparian Above Jordan, Palestine, Israel Uses all originating waters Yarmouk Adapted from CIA Factbook (2008) CEE 6490

Conclusions Water law is a way to codify behavioral norms and proscribe recourse when norms are broken Riparian and appropriation doctrines Application depends on water type and location Sometimes related, sometimes not Many overlapping International, Federal, State, Local, and customs apply Need to understand system(s) that are enforced in the area were water management will occur CEE 6490