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

2. 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
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3. Motivation Why have law(s)? Laws in the U.S. are:
Other religious, cultural, traditional approaches
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4. 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
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5. Types of Law Constitutional Legislative Administrative
Case (judicial decision)
Scales
Federal
State
Local
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6. Major Doctrines of Water Law
Surface water
Riparian (adjacent to surface water)
Appropriation (use of water)
Groundwater
Absolute ownership
Reasonable use
Correlative rights
Appropriation
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7. 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.
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8. 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
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9. How do the riparian and appropriation doctrines differ?
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10. 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!
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11. 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

12. 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…
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13. 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
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14. 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?
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15. 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
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16. 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
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17. 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)
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18. 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
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19. 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)
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20. 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
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