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EXAM: 3 Hours Open Book  3 Questions  2 Issue Spotters  1 Policy

Overview of the Course  Surface Water and Private Party Appropriation  Riparian Law  Adjacent to Water Body  Prior Appropriation  First in Time; First in Right  NOTE: The term diversion has different meanings depending on what realm of water law you are operating in. In the West, under appropriation, diversion means taking the water from a stream. It is analogous to the term ―withdrawal.‖ In the East, however, the term diversion means taking the water from one watershed and moving it to another watershed; it refers to interbasin transfer. Diversion is a requirement in the West for appropriation, but in the East, diversion or interbasin diversion is usually a per se prohibition to water use.  Groundwater  Public Rights to Water  Environmental Protection, Transportation, Fishing, Navigation, Recreation.  The rights an individual has a claim to as a member of the public  Most people do not have individual water rights and instead rely on public water rights  Interstate and International Water Management  Almost every major water body is shared by multiple states an/or multiple countries.

The Framework of Water Law  Two Traditional Concerns  Balancing public and private rights  Demand often exceeds supply  Tertiary Modern Concern  Environmental Protection and Efficient Use of Water  In this sense, demand always outstrips supply; any use of water is a concern.  Important Distinctions  Is the user supplied by a municipal system, or does he have a well  Individuals in municipalities are not completely subject to water laws; the municipality is  Individuals with wells are subject to water law but are also protected by water law  Consumption describes when water is used  Water law is a blend of common law and statutory law.  In most states water law is regulated by common law  There are statutory guidelines  Water law is both a private property and a public good  Attorneys and students struggle with the concept that water is both public and private good  It is not either/or but both at the same time  When we talk about Private Property with water, we are talking about the right to use the water, not owning the water per se.  Usufructory Right: A Right of Use  This is very different from a right of absolute ownership  A right of use may not be permanent; it could be temporary  It doesn't necessarily entail the right to exclude others  It is merely the right to use  In fact, water as a private property is rarely a unilateral right. It is almost a shared right to use.  At the same time, Water is also a public good.  The private use or ownership of water is also offset by public concerns and regulation.

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 A key thing to recognize is that even in the most conservationist and environmentalist scheme of water rights, there is still a constitutionally protected private right. Likewise, even in the most individualist scheme, there must also be public concerns and rights.  Water law only covers freshwater  This is because water law applies to water that has value.  The types of water that have value are freshwater resources. These are the resources that are limited, that people will pay to use, and that the public seeks to regulate.  Freshwater has economic value, and thus it is a subject of water law  Saltwater, on the other hand, does not have any value. It cannot be used in the way freshwater can, and it is a virtually infinite resource. There is no scarcity.  Water law covers all freshwater at any point in the hydrologic cycle.  The goal of water law is to treat water in the most efficient and economic way possible.  This often conflicts with the ways in which scientific minds would have us deal with water law.  Science encompasses more concerns than economy and efficiency, and so it does not inform the primary principles of water law.

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The Basic Tenants Of Riparianism
Riparianism: Long-standing doctrine that defines water rights in terms of ownership of land. The owner of the land adjacent to the water has the rights to the water.  Riparian law seeks to keep the water in the water-source.

Defining The Riparian User Class And Identifying The Benefitted Parcels
 In general, Riparian parcels are those plots of land that are contiguous with the water’s edge.  Advantages of Riparianism:

 If right to use water adjoins the land, then the owner has greater incentive to take care of the water.  Riparians are also much more willing to litigate, even when expense is high or gain maybe low, because they value the water in its natural state.  Water must be limited somehow and if everyone could get it, then the resource will be depleted. Those who have paid for the land have also incurred the higher price that is attached to it by virtue of its being riparian.  Policy goals of conservationism, maintaining navigability, quality, and recreation are better protected under Riparianism.  Appropriative systems, on the other hand, focus on the use of water. They assume there is not enough water, so the appropriator must put all he can to use.  Administrability: easy to determine who has the rights to water.  Americans very good at cataloging and administering property records, so the administration of riparianism is not usually difficult.  Avoids massive disputes because the number of people who have access to water bodies is limited.  Built in efficiency of use because no water will be lost to transport.  Disadvantages of Riparianism’  Unfair System: Riparian land is more expensive, so riparianism basically gives land to the rich and cuts many others out.  Although this still has the advantage of promoting conservation by limiting access. Those with money and an interest in land are more likely to use it wisely and also fight to protect it.  Inefficient Because Water Rights Are Not Severable: Forcing people to pay more for water access is an inefficient way to allocate the resource.  Environmentally inefficient because heavy industry can pay to locate on the water bodies and pollute the water  NOTE: Typically states will not allow industry to play the Unity of Title game by buying land far away and then buy intervening land to unify title and gain water rights.  Courts often finds this unreasonable.  Source of Title Rule  Riparian rights attach only to the smallest subdivision of waterfront land in the chain of title leading to the present owner.  Thus, even if the original riparian owner later reacquires the tract, only the smallest parcel with frontage on the waterway has riparian rights.  Under this rule, the amount of riparian land shrinks as conveyances sever waterfront lands from uplands.  Figure:  A – B – River  Smith owns single tract consisting of A and B, but then he severs the tract in two and conveys A to Jones and retains B. B will be the only tract that has riparian rights. EVEN IF Smith later buys A back, only B will have riparian rights because A was severed.  Rule helps to minimize reach of riparian rights.  Unity of Title Rule  Riparian rights attach to the entire tract of land fronting on a waterway held by a single owner. It does not matter that the land earlier had been divided into several parcels, some of which did not front on the waterway.  Thus all land that is contiguous to a riparian parcel that is held by the same riparian owner has riparian rights regardless of when or from whom the contiguous lands were conveyed.  Figure:  A – B – River  Smith owns A and B. Conveys A to Jones. Only B has riparian rights. BUT if Smith gets A back, then both A and B have riparian rights once again.

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Riparian Rights of Use and Incidents of Riparian Ownership
 Navigation  Riparians have a right to use the entire surface of a water body for navigation.  Domestic Use / Natural Use  The right to use the water for domestic purposes such a drinking, bathing and raising a small
quantity of produce or livestock necessary for supporting a family.  This is the most fundamental right and will be receive greater deference than other rights.  This right is not limited and can even be used when it diminishes the flow of water to the detriment of other riparians.  Furthermore, this is the only per se granted right that is consumptive.  Artificial Uses  Artificial uses are all those that are not domestic and include manufacturing, irrigation, generation of power, agriculture, farming, raising livestock, etc…  Reasonable Use Limitation: Artificial uses are limited by Reasonable Use Doctrine, which at its most basic, provides that a riparian is allowed to put water to reasonable use as long as it does not interfere with the reasonable uses of coriparians.  The list of artificial reasonable uses often varies by state.  Wharfing Out / Rights to Bottom Lands  Riparians are allocated a specific portion of the bottomlands over which they can build a structure (wharf) in the water.  For lakes, the portion is defined by finding the center point of the lake and drawing a pie wedge extending from either side of the riparian’s land (the crust) to the center point of the lake.  For rivers, the midline of the river and the edges of the riparian tract form the square over which the riparian has a right to wharf out.

Common Law Development of Riparian Rights: Moving Away from Natural Flow Doctrine
NATURAL FLOW DOCTRINE  Every water user has the right to the full natural flow of the river, undiminished in quality or quantity. Thus, a user may not diminish the flow or quality of the river to the detriment of another. NOTE that Natural Flow Doctrine gives the greatest protection to the user furthest downstream.  The Natural Flow Doctrine was a workable system when water was applied almost exclusively to domestic/natural uses.  But the system proved inadequate with the coming of industrialization because industry use of water had a much greater impact.  If the country adhered to the Natural Flow Doctrine, it would have halted industrial development and protected the last person in line on the river while completely prohibiting industries from using the water.  Merritt v. Parker (1795): The court applied the Natural Flow Rule here. It allows an upset downstream user to enjoin the use of water by the upstream users, even if that upstream use is more productive.  Martin v. Bigelow (Vermont—1827): P is an upstream mill owner, and D is a downstream mill owner. P opened up a mill and diverted water into his mill pond, which reduced water flowing downstream to D. D used self-help and opened P’s flood gates to return the flow to the river.  In a dramatic departure from Natural Flow Doctrine, the court ruled for P, stating that mills must use water and that it was in the best interest of society to have as many mills as possible.  If the court had employed Natural Flow Doctrine, D surely would have won because D was the downstream user, and P was diminishing the flow.  BUT instead, the court embraced a pro-developmental stance toward industry.  D was at the river long before P, BUT the court states that the mere occupancy of the water by D before P does not give D the right to prevent P from using the water in a prudent way.  Snow v. Parsons (1856): Tannery dumping waste into the river, which clogs and impedes the operation of a downstream mill.  The court rules for the tannery because their use is reasonable, and the public needs leather.  Under Natural Flow Rule, tannery would have lost.  ―Within reasonable limits, those who have a common interest in the use of air (because tannery smelled really bad) and running water, must submit to a small inconvenience to afford a disproportionate advantage to others.  Reasonable Use Riparianism is especially good because of its ability to devise case by case solutions for using the common resources that maintain an eye toward maximization and fairness in the specific circumstances at hand.  Maxim v. Hoyle (1888): Very early case introducing reasonable use. These factors are not necessarily comprehensive, BUT they do reflect the theory of reasonable use.  Factors determining if use is reasonable: (1) equal opportunity of all riparians to use the stream; (2) the maxim that no owner can use his property so as to injure another; (3) the character and capacity of the stream; (4) foreseeable shortages and apportioning them in a manner that permits all riparians to secure a fair portion of the benefit; (5) customary practices as an indicia of reasonableness.

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 NOTE: Upstream versus Downstream is not important in reasonable use determination like it is in Natural Flow Doctrine

20th Century Common Law Reasonable Use
REASONABLE USE  Types Of Uses  Under Reasonable Use Doctrine, there are two types of uses:  (1) Per Se Unreasonable: This use would automatically lose if the user was brought in an action.  The only pure example of this is using water to drown gophers digging holes on land.  (2) Everything Else: Riparian Law presumes that pretty much everything is a reasonable use, BUT when it conflicts with another reasonable use, it may be declared unreasonable in the circumstances.  Legal Claim  Riparian rights are tied to property rights, so claims are usually a tort action brought as trespass or nuisance.  An interference with a person’s reasonable use is a tort.  Major Limitations  The Right to Reasonable Use is not at all dependent on how much frontage the riparian has on the water, BUT it is limited in that riparian rights cannot be transferred to an off-tract user.  The amount of land that fronts the property will not limit rights of riparians, BUT the overall use of the water (which may be tied to land size [i.e. irrigation]) could inform whether a use is reasonable.  BUT it is not listed as a factor in restatement, so it has to be a consideration fit into one of the factors and not a consideration unto itself.  Restatement 2nd of Torts § 855  Any nonriparian use is unreasonable and is not entitled to protection even if use is with the riparian’s permission. This is based on the concept that watercourses and lakes exist primarily for the benefit of the lands through which they flow, rather than for the benefit of the riparian proprietors.  Originally the law also limited riparian use to the same watershed as well as on-tract land, but over time, that rule has been relaxed.  Pyle v. Gilbert (Georgia—1980): Plaintiffs own riparian property that they use for a water-powered gristmill. Ds are also riparians who granted the rights to their water to a third party non-riparian who was using it to irrigate his off-tract farm. Ps sued for nuisance and trespass.  The court recognizes that irrigation and agriculture are reasonable uses of the water because “each riparian proprietor is entitled to a reasonable use of the water for domestic, agricultural, and manufacturing purposes; provided, that in making such use, he does not work a material injury on the other.”  The court was changing the law by claiming to use natural flow doctrine but modifying it with reasonable use doctrine.  BUT the court remanded in favor of P because the third party using the water for irrigation was using it offtract.  Joslin v. Marin Municipal Water District (California—1967): P owned land downstream of the construction of a dam by the municipality. P owned a company that provided sand and gravel, and P got the sand and gravel because the river was full of it. P merely sifted it out of the river. But when D built the Dam, the sand and gravel often got caught up and never made it down the river. P sued D.  The court holds that D’s use of the water is reasonable, AND P’s use of the water to get sand and gravel is not one of the 4 protected riparian uses. Because it is not one of the 4 protected uses, the court will not protect it.  The 4 protected uses are navigability, natural/domestic, artificial, and wharfing out.  The court held that the use of water to mine sand is not one of the four protected uses.  The dispute comes down to D’s protected reasonable use versus P’s unprotected use.  NOTE: Hall suspects that this case would be decided differently today in many eastern riparian states because using the water to mine sand and gravel would most likely be called an Artificial Use and thus fall into one of the four protected uses.

When Reasonable Uses are Incompatible
RESTATEMENT 2ND OF TORTS §§ 850 AND 850A  The system of reasonable use is most applicable in order to dissolve two competing reasonable uses.  It is not helpful in determining whether a use is per se unreasonable, and that is why there are so few examples of per se unreasonable uses.  NOTE: A use that would otherwise be reasonable may become unreasonable after the balancing test is applied, BUT this does not make that use per se unreasonable. It is simply the court’s determination that the use is unreasonable under the given circumstances, UNLESS the court does in fact identify a use as per se unreasonable.

 850A Commentary: ―The general rule that the law does not concern itself with trifles is applicable. but as a way to resolve the dispute. first in right BUT Eastern water law is riparian.  (i) The justice of requiring the user causing harm to bear the loss  As a second to last resort. land.  (b) The suitability of the use to the watercourse or lake  (c) The economic value of the use  (d) The social value of the use  (e) The extent and amount of harm it causes  (f) The practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other  (g) The practicality of adjusting the quantity used by each proprietor  (h) The protection of existing values of water uses.Water Law Outline Professor Noah Hall – Winter 2012 Page 6 of 51  Remember that riparian law aims to keep the water in the river.  Law has a preference for basic human needs  (3) Show actual harm that is substantial enough to allow the court to turn to the balancing test.  SO Approach a dispute between two riparians in this manner:  (1) Before getting into the factors. especially since the effects could be far reaching. Individual causing the harm may be using the water totally reasonably. BUT they are not necessarily listed in any specific order in the Restatement. the court will say that the person causing the harm should bear the cost of it.  Social Factors / Context of the Use  These are the absolute last factors the court will want to use to resolve a dispute because while they are not arbitrary.  R2D Torts § 850A  Reasonableness of the Use of Water.  R2D Torts § 850  A riparian proprietor is subject to liability for making an unreasonable use of the water of a watercourse or lake that causes harm to another riparian proprietor's reasonable use of water or his land. land. investments and enterprises  (i) The justice of requiring the user causing harm to bear the loss  HALL’S CHEAT SHEET FOR APPLYING FACTORS  Determination of a reasonable use is a balancing test that weighs various factors. they are pretty far outside of what judges are comfortable opining about. One riparian proprietor is not liable to another under the rule stated in § 850 merely because his use of the watercourse or lake interferes to some slight degree with its flow. the court will try to accommodate all users by asking if there is anything the parties can do to meet their needs but also provide for the needs of the other riparians  (f) The practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other  (g) The practicality of adjusting the quantity used by each proprietor  (h) The protection of existing values of water uses. toss out the per se unreasonable uses OR establish that a use is not a protected riparian right. The determination of the reasonableness of a use of water depends upon a consideration of the interests of the riparian proprietor making the use. it must be ceased because it is causing harm.  (a) The purpose of the use  (c) The economic value of the use .‖  (4) Now turn to 850A factors in the following groups and order  Compatibility of the Use to the Body of Water  Is either party’s use outside of what is generally reasonable in terms of the body of water and other riparians?  (b) The suitability of the use to the watercourse or lake  (e) The extent and amount of harm it causes  Possibility of Accommodating Each Use  Here. investments and enterprises  Be careful here because Western water law is solely about first in time. the court may determine that even though it is reasonable. so Eastern water law is VERY defensive about applying this strictly. Naturally uses are just heavily preferred over artificial ones. quantity or level and causes minor inconvenience or slight harm to another. Factors that affect the determination include the following: might be helpful to place notes from westlaw commentaries under each of the factors  (a) The purpose of the use. of any riparian proprietor harmed by it and of society as a whole.  Point to drowning of gophers as per se unreasonable  Point to using water to get sand and gravel as a use that is not protected  (2) Give the Domestic Uses priority over all Artificial Uses  Domestic Use not limited by the number of people living on the land using the water domestically  NOTE: Natural versus Artificial Use is not a trump card.

but this does not necessarily convert them into artificial bodies. Then D bought land from neighbor and wanted to use the waterway.  2 Common Types of Artificial Waterways  Lakes formed from dam reservoir system that enlarge the water surface of preexisting river or stream. Surface Uses on Artificially Created or Enlarged Waters ARTIFICIAL WATERWAYS  Artificial watercourses are waterways that owe their origin to acts of man. so they want to promote the development of the state on a large scale. P bought a property easement from neighbor that gave them the right to flood the land. I think we covered it actually. irrigation ditches. it could be good to add.Water Law Outline Professor Noah Hall – Winter 2012 Page 7 of 51  (d) The social value of the use  NOTE: On Exam.  Depends on jurisdiction. and the like.  D was not entitled to boat on the entire surface of the waterway simply because he owned land that abutted the waterway. the normal rules of riparian rights do not automatically attack to artificially crated water bodies because the expectations of abutting owners are not those of riparians along a natural watercourse.  Excavations into which water flows by gravity or is introduced through intervention.  NOTE: Do not necessarily take this as controlling. Bell (Florida—1983): P owned riparian land with a creek on it. drainage. Ds control the dam. such as canals. BUT court ignored the contract principles and instead decided case on water law principles because:  (1) Wanted to promote development  The public is not being deprived of any rights it previously had  Don’t want to discourage property owners from developing  Don’t want to give a right that would impeded reclaiming the land  The original parties could have bargained for surface rights but did not  (2) Florida has lots of spring water and wants to promote capture of the waters before it reaches the ocean or else they are lost. fumes. Maintaining Water Levels and Flows  Glen Lake Crystal River Watershed Riparians v. Michigan does apply this rule (See Thompson v. Florida applies this rule. Ps sue because they want more water for the Crystal River and ask the court to lower the natural height of the river. The lake has a dam to control and stabilize the lake level.  Most lakes in Michigan are artificially maintained by a dam or water height mechanism. which is economically worthless. Ds are the association of individuals that live on the lake. BUT many states do not. Ds set the dam at the natural height they thought the lake should be. SEE Michigan Citizens for Water Conservation v.  The question arises whether the ordinary rules of riparianism apply to artificially created water bodies. Glen Lake Association (Michigan—2004): Ps are riparians on a river that flows from Crystal Lake.  This could have been decided on contract principles because P had paid for the easement which did not give neighbor or D surface rights.  SO whether or not riparian rights apply to manmade non-navigable waterways depends on the jurisdiction. the distinction between natural and artificial can be very hard to apply.  Traditionally. Nestle. aqueducts. Also Florida is very swampy. The court ruled that D did not have riparian rights to the waterway. When dam was built.  Anderson v. try and apply as many factors as possible.  BUT the modern view is generally that riparian rights do apply.  25-Page Water Law Outline has a pretty good case here that we did not cover.  In many states. P dammed the creek.  The right to use surface waters on a manmade non-navigable waterway is not automatic in riparian law. Enz). We may have covered it later in material but if we didn’t. and it flooded neighbor’s land.  Does this rule promote development?  Yes: Judicial policy clearly favors development  Maybe No: Flowage easements will now cost more for developers to negotiate with landowners because the developers know they will not get surface rights.  Court held that property adjacent to or beneath a manmade non-navigable water body is not entitled to beneficial use of the surface water simply by virtue of owning the riparian land. .

 The Basics  Municipality’s power of condemnation derived from the state through enabling legislation or ―home rule‖ provision. if not all.  Biggest issue is what price the condemned riparian will be paid for the deprivation of his rights. sea walls. including the ordinary high-water mark and seasonal fluctuations. etc…  Ds framed the argument in terms of what is better for them. the courts cannot shut down the municipal water provider.  NOTE: In terms of 850A.  Compensation at intentional tort rate when rights are seized by eminent domain because seizure was purposeful rather than negligent. this is an argument based on social factors. .  INSTEAD.  This puts municipal suppliers in an awkward position with co-riparians. which is very similar to 850A. condemned riparians have no means to defeat condemnation  Meeting domestic needs of inhabitants is universally viewed as a public use within the scope of eminent domain  Local law and practice will determine the territorial extent of condemner’s authority.  (i) Testimony and evidence offered by all interested persons.  Typically lands outside the municipality cannot be condemned without special authorization  For the most part.  Ps framed the argument in terms of what is better for the river. Municipal Water Supply in Riparian Jurisdictions USING EMINENT DOMAIN TO SECURE MUNICIPAL WATER SUPPLY  General Difficulties with Municipalities in Riparian System  Important to remember that according to Riparian Law. although it sometimes does.  When a municipality condemns a riparian’s water use rights. drain fields. the social value of use.  So it is best to think of the municipality as a channel through which the water goes in order to be used by a city’s population. which can be tricky because you never know what is socially valuable to the judge.  Eminent Domain Steps In  Even when a municipality loses in a reasonable use claim.  The municipality only needs to acquire the riparian rights to the water and not the land itself. the court invokes eminent domain so that the municipality can acquire rights to the co-riparian’s right of reasonable use. docks. so when municipalities are involved.  This means that it was up to Michigan circuit court judges to decide how to balance the factors.  (c) Government surveys and reports.  (d) The hydrology of the watershed.  In most cases.30707(4)  The trial court (upheld by this court) applied Michigan statute. BUT it is also not artificial water use.  NOTE: This was given to circuit judges to decide because the case predated Michigan’s establishment of an Agency to handle these decisions. and found that lake level should be lowered.  (b) The location of septic tanks. of traditional riparian law gets ignored. the fish.  This does not always mean taking the co-riparians entire tract of land.  The Statute: In a determination of the normal level of an inland lake. specifically 850A(d). municipal supplier’s use is unreasonable under traditional riparian law.  (g) Upstream drainage.Water Law Outline Professor Noah Hall – Winter 2012 Page 8 of 51  MCLA 324. the size of the land a riparian owns does not factor into what uses of their rights are reasonable.  (e) Downstream flow requirements and impacts on downstream riparians.  Municipal water use is also not well suited to Riparian law because municipal water use is not natural water use. and often the will additionally have to provide the landowner with all the water he needs.  (h) Rights of riparians. the court shall consider all of the following:  (a) Past lake level records.  (f) Fisheries and wildlife habitat protection and enhancement. The lawful exercise of the power of eminent domain requires that the property be taken only for public use. much.  This is why framing the argument in terms of social benefit AND having better experts allowed D to win.  Municipal water use is not defined in terms of riparian law.  (j) Other pertinent facts and circumstances. and other pertinent physical features. the ecosystem. they will have to compensate the landowner.

Unfortunately. including environmental impact. and slopes down the other side into another basin. the elevation peaks. the conditional permit’s conditions are fulfilled and building may commence. D argues that very soon it will be unable to meet future need for water unless it can divert this water. has land on each side at a higher elevation. P wants the court to grant an injunction now against the entire class of riparian owners along the river that will strip these riparians of any right to the surplus water that P will be pumping out. a municipal water supplier.  Interbasin transfers usually require administrative approval. the case will be an issue primarily of agency deference rather than purely water law doctrine. the triggering mechanism was when water use/demand reached a certain point.  North Carolina v. is seeking to draw water from Lake Gaston. P alleges that riparians have no right to water anyway because (1) it is floodwater. so in this case they were only required to determine the extent of the need.  The court rules in favor of P BECAUSE the water to be diverted is floodwater to which the downstream riparians have no claim. the city of Virginia Beach. shows that water diversion will have a devastating impact on trout population.  In this case.  A decision striking down an agency’s decision will set bounds.  But at some point the further away the land is from the river.  A river. The water from that land drains back into the river. Williams (New York—1988): D. P wants to divert water from another Roanoke’s Basin. they do not have a right to the flow that P plans to divert. (2) the amount is minute. Army Corp of Engineers approves the construction of a pipeline for interbasin transfer of water. P.  Every state has at least one department that grants/denies permits  These agencies use Restatement 850A factors  Standard of review is whether the Agency clearly screwed up. NY Statute requires a permit for this amount of water AND a showing of public necessity in order to get permit. Champion International Corp (Virginia—1984) [Complaint]: This was a complaint brought and not an actual suit because P. a fisherman’s association. . (3) while the riparians have riparian rights. INTERBASIN DIVERSION TO PROVIDE MUNICIPAL WATER SUPPLY  A water basin is comprised of a water body and the surrounding land from which water will drain back into the water body. which is out of basin and on the other side of the state. the trout lose out to the people’s needs. the court upheld the agency’s decision as well as the state’s practice of delegating these disputes to an agency. but the Corps is AND that is why they were entrusted with this discretion by Congress  Virginia beach need for water  Corps determines that there is a need for water in an earlier decision. BUT it does not exclude the possibility that there are other ways to interpret.  This court holds that the Corps had taken a hard look at all the factors. The standard of review is whether the agency’s decision was arbitrary and capricious.  Here. and this court upholds Corps’ decision.  A triggering mechanism is some standard set by the agency. Rather than wait around for suit.  The legal issue of interbasin transfer in riparian systems is very much like the eminent domain issue – there are not clear legal standards. the Corps determines that it is not contrary to the public interest and thus grants the permit.  NOTE on Administration  In making this decision.  Factors Considered  Effect of diversion on striped bass population  The court is not an expert on this and neither are petitioners.  The applicable statute says that permits will be granted for interbasin transfer UNLESS contrary to public interest. Ps bring a claim that Corps’ review was inadequate and that there will be damage to the environment and that D does not have a need for increased water supply.  City of Virginia Beach v. they prepare this complaint.Water Law Outline Professor Noah Hall – Winter 2012 Page 9 of 51 AVOIDING CONDEMNATION OF MUNICIPAL WATER SUPPLIES  Hudson River Fisherman’s Association v. If the agency’s approval is challenged. for example. but a decision upholding an agency’s decision is not incredibly useful as case law  Approval of agency decision only indicates one way to interpret case law that is not clearly erroneous or implausible. After a balancing of the factors. so an agency makes a decision and is given deference by a reviewing court. Virginia Beach. anticipates being sued. the Department of Environmental Conservation is permitted to issue a conditional permit to construct the artificial pond that is conditional upon a TRIGGERING MECHANISM. provides water for 88% of Rockland county residents and industry.  The court found for the municipal water supplier by balancing the population’s need for domestic water with the interest in preserving trout. Hudson (North Carolina—1990): D. and if it is met.

BUT it may be completely unpredictable.  If an actor does cause surface water diversion to the harm of neighbor.  Their use is artificial and not domestic  They use a ton of water  They are easy to identify  They are unsympathetic parties  Their use for dilution of waste is not one of the protected riparian uses. this rule makes any diversion of surface water from its natural flow a tortious act. he will have to pay neighbor for the ride or pay damages.  Under black letter.  Under civil law. The Law of Drainage  2 Traditional Approaches  Civil Law Approach  Water runs where it should run. The neighbor cannot sue.  Costs should balance the competing interests and the reasonableness of D’s actions in light of all the circumstances. P can have it free and clear. so a landowner can do anything in his power to fight it. a developer could not build a large shopping complex because it would alter the flow of the water. Most states that have adopted common enemy doctrine have a requirement that a landowner.  Common Enemy Doctrine  Surface water is a common enemy of all landowners. BUT common enemy allows development but with serious consequences. BUT this is a lot of speculation.  BUT if upper does nothing and damages is significant. as it is wont to do by natural right.  In its purest form.  A developer can build his shopping center even if it causes the runoff to go to his neighbor’s land. INSTEAD.  McGlashan  Costs of development should not automatically be shouldered by people on lower lands while the developers reap the profit.  Other Reasons P Wins  The class is comprised of riparians. then upper landowner is liable for damages and/or injunctive relief. A would have been liable because an actor is liable for any alteration to the natural flow.  It’s also possible that he could put in some kind of drainage ditch or system. but these riparians are downstream businesses who are using the water to dilute their waste. .  NOTE: This is not the same as Riparian Reasonable Use. must avoid being actively negligent. even though some damage might occur  BUT if upper landowner does nothing and damage is substantial or developmental activities are a major proximate cause of damage. he is liable. suggesting that this was one of those cases in which the Upper went too far and was actually throwing and not merely diverting water onto A’s land.Water Law Outline Professor Noah Hall – Winter 2012 Page 10 of 51  If water is excess/surplus/drain water.  Court finds for D and upholds the Common Enemy Doctrine.  Argyelan v. SO if P can capture it before it goes into the water source where it otherwise would have gone.  This rule stems from the idea that a person owns his property from the heavens to the center of the earth.  Then another developer upslope from the shopping center might also develop and force runoff onto original developer.  Most states have modified the rule to permit alterations in flow.  Common Enemy is often touted for being better for development than civil law approach.  Reasonable Use [Modern Approach]  The law should not inhibit reasonable land development.  Hall  If upper owners have made reasonable efforts to minimize the damages to lower owners. BUT neither should it allow a landowner to expel surface water without regard to the consequences.  Upper landowner should not be liable when upper has made reasonable efforts to minimize the damages.  Very few states have adopted this rule wholesale because it is anti-development.  The rule allows for flexibility and the best benefit to community as a whole. BUT the court recognizes that this will go toward a population’s water needs. H challenges the state’s Common Enemy Doctrine. SO Upper landowners are required to do whatever is reasonable to minimize the damage to lower landowners from the upper landowner’s runoff. which is natural use. the upper owners are not liable if some damage does occur.  Municipal water use is not a natural use because municipal water use is not defined. the downstream riparians have no right to it.  Civil law prevents development because it alters natural flow. but he will simply build a structure to block the water and force it to remain on developer’s land. in fighting drainage on his land. Haviland (Indiana—1982): A develop their land in such a way (buildings and pavement) that tons of runoff pooled on H’s land. it is the tort doctrine of nuisance imported into water law.

which would probably send the water even further down the line to harm someone else. H simply has to live with the runoff or build a drainage system to protect himself.Water Law Outline Professor Noah Hall – Winter 2012 Page 11 of 51  Under Common Enemy Doctrine. .

One acquires a property right (an appropriation) by taking the water of a natural stream and applying it to a beneficial use in a non-wasteful manner with due diligence. When there is not enough water in a stream to meet the demands of all appropriators.  One can appropriate water from a river and carry it out of the watershed or even out of the state.  Or more commonly where a project takes time to complete. the water is appurtenant to the use Elements of Prior Appropriation      1. First in Right  If there is not enough water to go around then the Junior Appropriator must alter his usage to allow the Senior Appropriator full access to his claim.  Futile Call Doctrine  If a senior appropriator is getting no water. the USE has the right. 3. BUT if the senior would still not receive any water EVEN IF the junior were enjoined.  NOTE: If an actor cannot be a Senior Appropriator. Doctrine of Relating Back  One’s priority is determined by the date at which the water was first applied to beneficial use.  Because Senior Appropriators are often downstream of Junior Appropriators.Water Law Outline Professor Noah Hall – Winter 2012 Page 12 of 51 PRIOR APPROPRIATION INTRODUCTION  Prior appropriation is the primary water system in the Western United States. and each person with a later date is junior to anyone with an earlier date.  It is often necessary to obtain legal access across other peoples’ land to get to the water. and one also loses the right be ceasing to make such a use. 6. One cannot hold an appropriative water right merely as an investment for future use. Natural Streams means rivers and lakes. Ownership of Land gives no one the right to use water 2.  Most states have moved to a Permit System/Administrative System except Colorado (Colorado has Water Court).    How The System Functions In prior appropriation. 7.  First in Time. the right to appropriate has been recognized by the state constitution.  NOTE: The junior will be enjoined if shutting him down results in at least some usable amount of water reaching the senior.  In many of theses states. even if it is not the full amount he has a right to.  Pure appropriation doctrine rejects the idea of equitable sharing. then the junior will be allowed to continue diverting.  This can happen especially when distance between upstream junior and downstream senior is very large because water loss through seepage and evaporation can accumulate over a great distance.  And today. he may seek to stop an upstream junior from diverting. and this is why the system is described as first in time.  Calling the River  When an appropriator is not able to get as much water as he has a right to. first in right.  Court will only decide if the administrative court applied the law correctly. this often includes the granting of a permit from an administrative permit system. then the best place to be is immediately downstream of the senior appropriator or a municipal appropriator.  NOTE  Understanding the Lingo  In riparianism. the upstream juniors may hat to let water flow by their point of diversion to assure that sufficient water reaches the downstream seniors.  Administrative law cases that are brought before a normal court will defer to the administrative court. he may ―call the river‖ and seek to enjoin any upstream junior appropriators who may be decreasing his flow. as in the case in riparian systems. 5. all junior appropriators would be required to terminate use. but it excludes unconnected underground groundwater 4. rather than the USER. the law requires the most junior appropriators cease taking water in order to ensure that water will be available for more senior appropriators.  The appropriator with the earliest date of appropriation is called the senior appropriator.  If the stream could only satisfy most senior appropriator. 8. Law has allowed appropriators to acquire needed rights of way across private land. There are no limitations on the place of use. . Water flowing in a stream in its natural condition is un-owned and is held by the state for the acquisition of users.  Abandonment  One acquires the right by applying it to beneficial use. the priority is given (relates back to) the date on which the first work that would lead to a beneficial use was begun. the water is appurtenant to the land  In appropriation.

and the losers are given paper rights. The shareholders share the cost of maintenance and operation. reservoirs were constructed to hold winter flows so that the water could be stored for irrigation. Here there are several ditch companies that are treated as a single use.  The senior appropriators may bring a claim because they are not getting water or because if the juniors continue as they currently are.  The court sorts out all the appropriators according to priority. or it can seep into an underground aquifer. but they do not actually receive water because the more senior appropriators have priority to it.  Can also have an effect on water quality. which results in mutual ditch companies and things of the like.  Change in place of use is a material change  Change in time of use (seasonal versus year round) is a material change  Change in purpose of use is a material change.  An appropriative right is diverting water at a specific point in the stream and putting it to a specific beneficial use at a certain rate. and the court is assigned to adjudicate the use rights.  Mutual Ditches  A mutual ditch company is when several users use the same ditch under the same appropriative right.  Return Flow  Junior appropriators downstream will often get return flow of water that comes back to the river after the senior has used some portion of the water on his land.  This can result in water skipping over some appropriators and not being available until it reaches appropriators much further downstream. the seniors will not get water in the future.  The standard is that a junior or juniors will be shut down ONLY IF doing so will result in SOME USABLE QUANTITY of water reaching the senior. the riparian right attaches to the user (person.  Storage rights were governed under prior appropriation principles. several parties can group together under a common use.  In appropriative systems.  Changing in the discharge point is a material change  Nutshell says maybe it isn’t.  But sometimes return flow does not always return to the same river from which it came.  It is in the interest of junior appropriators to participate in the adjudication and get their paper rights because it protects their future interest. which resulted in more junior appropriators with paper rights. but the ditch company actually holds the legal rights.  Storage Rights  As streams were fully appropriated. the right is attached to and determined by use.Water Law Outline Professor Noah Hall – Winter 2012 Page 13 of 51  BUT if only a little trickle would get to the senior if the junior were shut down. then the junior will not be enjoined.  INSERT PROS AND CONS OF PRIOR APPROPRIATION General Adjudications and Paper Rights In the old days in the event of a controversy.  NOTE: When an appropriator gets a paper right because there is not enough water to get to his place in line.  In the Matter of a Certain Petition for Adjudication of Rights to the Use of Water: This is an example of an adjudication system. entity).  The grouping of people into things like ditch companies in appropriative systems is very much like the grouping of riparians into lake associations and voluntary co-op. A paper right establishes that the person does have a valid appropriative right.  The winners get the use of the water. In contrast.  Paper Rights were most commonly the result of senior appropriators inflating their need and thus being given the right to more water than they actually used. . and the claims of competing appropriators were decided by the evidence adduced in the lawsuit. Statutes authorized general adjudication to divide up all the rights to all the water in the basin.  Changing the point of appropriation is not a material change  Nutshell says it is. a lawsuit was filed. party.  No Material Injury Rule  A senior appropriator cannot make any material change to its water use that harms a junior appropriator.  A person can buy shares of water in the ditch company.  Paper Rights  Those who have a right to the water but who must forgo their right because of the senior appropriators’ priority have a paper right. he will not be subject to losing his right because he has not abandoned it.  Some Distinctions  In the appropriative system.

 Subject to collateral attack.  Priority. but the adjudication also decided several other things as well.  How can an owner of instream rights prove that he is using the water for instream use. it is being used by the fish and wildlife.  Owners may not zealously defend their rights ever time there is a dispute. This is often described as exercising physical dominion over the water. and he did not have the paper right to back it up.  This resulted in appropriators vastly inflating their actual needs.  The Modern Trend:  States often allow for instream flows. and how can he show the amount?  Whose Rights?  If it is in the river.  The flow of water must be fairly constant.  A state may refuse a permit for an appropriation EVEN IF water is available if it determines that it needs to reserve some unappropriated water in order to maintain instream flows for fish and wildlife.  So adjudication decrees often appropriated much more water than was actually used. UNAPPROPRIATED WATER  The water to which a person seeks an appropriative right cannot already be claimed. not the people. and occasional supplies such as springs and seepage. Did they or did they not set time limitation. and these are crucial for resolving disputes. it was easy to do this.  1. diffused.  But it must be more than mere drainage occasioned by extraordinary causes.  Results in Paper Rights.  Prove Up  Parties attended adjudications in order to prove up their appropriation. and sometimes. but most do not.  Some states will apply appropriation to groundwater.  2.  An irrigation appropriation in dry months if far more valuable than on in wetter months.  Does not apply to vagrant. he may lose that right to abandonment because he would not be putting the water to beneficial use when there was none for him to use.  3.  Amount.  There must be substantial indications of the existence of a stream.  Economic. having a bed and sides or banks. Acquiring Appropriative Rights There are 4 key elements to show an appropriative right. .  Often requires special permit or approval. which is usually the fact that there is moving water there. and discharging itself into some other body of water. even more water than was actually in the water body.  Does Not Apply To   Usually does not apply to groundwater. DIVERSION (INSTREAM FLOWS)  Most Western states require the physical act of diverting the water.  Problems With the Adjudication System   People over-claim water. whether there is any unappropriated water in a stream will be determined by an administrative agency.  Is this true. But today.  Does not apply to man-made sources.  In the old days.Water Law Outline Professor Noah Hall – Winter 2012 Page 14 of 51  But it’s possible that if a person does not attend the adjudication to secure his appropriative right. Each appropriator in an adjudication was given a specific place in the line. NATURAL STREAM  A natural stream is defined as a stream of water flowing in a definite channel.  Adjudication decree is often an inaccurate description of the water actually used and the water actually available.  Irrigation water rights are time-based and also appropriative rights.  Problems With Instream Rights:  Proof.  Instream Uses  Appropriation’s requirement that there be a diversion presents a number of problems for those who would use the water in a less traditional way. It is really only California that does not. Each appropriator was assigned a specific amount of water for the use he claimed. but a stream that dries up during certain times of year or does not flow sometimes can still qualify.  BUT the adjudication decrees did not always set out time limitations for appropriative right.

but as a general matter. is the water being put to an economic use?  What about speculation?  Jesse Boyd says that there should be a limited market approach in which water can only be sold back to the owner who sold it in the first place.  No Harm Rule  Change in Point of Diversion. there is often a flash point in the community because the community will have to change modify its industry water use and expectations. a person may be able to change their beneficial use.  Community Tension  When water gets converted from a traditional to an instream use. the principle that most courts follow is that an appropriator can increase their use over time based on expanding the original intent of the beneficial use.  A change will ONLY be allowed if it will not harm other appropriators. Seasonal Changes.  This is unpopular and may constitute a taking.  Often requires a statute to establish instream right. change of the season of irrigation or converting to year-round irrigation generally won’t be allowed because beneficial use and appropriative rights are given on a seasonal basis. If the purpose is to irrigate a tract of land. Place.  Amount Allowed at Point of Diversion = Conveyance Loss + Amount Used at Location of Use .  Crop Switching.  And it is a limitation in that the water must be used beneficially and not wasted.  Because there is no on-tract limitation. Purpose. even if the purpose is perfectly appropriate.  Increase in the acreage irrigated or the types of crops may be allowed. but it usually looks more like a privilege than a right.  Speculation  Allows people to hold water rights without using them when the value is low and then sell them when the water is worth more.  Transfer or Right  Opportunity to transfer appropriative right. The continuous use rule was meant to deter speculation.  However.  Change in Use  There are many circumstances in which an appropriator will want or need to change the use to something other than that which was originally appropriated for.  4.  It is the basis for which an appropriative right is granted.  But still.  Market Approach  Sell the rights to the highest bidder.  Losses must be consistent with industry practice and economically and technologically reasonable. and a LIMITATION. Season (Time).  The Use must be permissible in terms of purpose  The Use must not be wasteful in amount. and he must act on that intent with due diligence.Water Law Outline Professor Noah Hall – Winter 2012 Page 15 of 51  Instream uses will never be abandoned because they are always being used for the purpose they were meant. but this means that other businesses and industries might have to forgo their own needs.  Statute.  Permissible and Non-Wasteful  The requirement of beneficial use has two major components.  Measure  The appropriated right is measured at the point of DIVERSION. QUANTUM OF BENEFICIAL USE  Beneficial use is a BASIS.  Basis (Intent and Due Diligence)  The user must show that he has the intent to bring the water to beneficial use.  Permission/Statutory  Most changes require some permission from a deciding entity or are subject to Statutory limitations.  Every state varies on the doctrine and case law of enlargement and change of beneficial use. a lot of appropriative use is away from the water body.  Historical Use  A change will be limited to the historical consumptive use.  State will often require administrative permit or a portion of the water or payment before it allows transfer.  It is the measure of how much water is needed for that use.  Possible Solutions  State Established Minimums  The state establishes a minimum stream level and all have to reduce to maintain the level. or Point of Return are limited by the No Harm Rule. and conditions change of the methods of irrigation evolve.  Eg. these losses are an acceptable part of beneficial use. and Increased Irrigation are entitled to increase amount over time and to date the total back to the original date SO LONG AS there was intent to do so from the outset AND the water was brought into use with due diligence.  AS LONG AS losses in transportation and application are not considered wasteful. a MEASURE.

Water Law Outline Professor Noah Hall – Winter 2012 Page 16 of 51  Quality  The upstream user is responsible for protecting quantity and quality.  Preservation has also been regarded as beneficial in many places. Under appropriative system.  1.  An appropriator does not have any protected right in the natural quality of the river as a whole.  The practical question is to what extent appropriators should be required to bear the cost of modern facilities in order to free up water for new/other appropriators. . the appropriator loses the right.  The Fifth Factor: Abandonment  When a beneficial use ceases. and any water wasted in terms of transit or use is acceptable so long as it is not egregious and is in accordance with custom. waste means EGREGIOUS WASTE. recreation and aesthetics were not considered beneficial. Waste and Beneficial Use  Appropriation Definition of Waste  Water that is lost or not used is not always waste.  A use DOES NOT become non-beneficial at a later time simply because other uses seem more beneficial. It comes at an energy cost and/or an investment cost.  Questionable  Aesthetic and recreational uses  At one time. manufacturing. and domestic and municipal use are ALWAYS beneficial. will not be allowed if it is wasteful. Transmission Losses  Through leaky ditches and excessive evaporation  2. etc…  This traditional rule holds that market forces to not represent all costs.  The capitalist system works by rewarding those who make an investment.  As long as water reaches an appropriator and it is useful. even if it is permissible. but today.  Most of the attention regarding waste is directed toward agriculture.  Irrigation System is a Trade-Off Of:  Water  Energy  Investment Cost  There is no free way to make water use more efficient.  Use it or lose it.  Some urge that what is beneficial should be adjudicated and based upon different factors.  Appropriative system lends itself to waste  When a person has a right to consume water.  More than half of the water diverted by Western famers constitutes waste. and it protects communities that would die if they did not have their appropriative right to use water for agriculture if it were forfeit because some other use was considered more economically beneficial. investing to make water use more efficient offers no reward. Excessive Application of Water to Crops  Many states provide a maximum duty of water for crops not to exceed more than a certain number of acre feet of water per acre.  Permissible and Non-Wasteful Use  Purpose for which water is used must be permissible and non-wasteful.  An appropriator only has an interest in ensuring that the natural water course can produce water for his beneficial use. power production. non-wasteful use.  Seepage loss also has some positive externality because it can be delivered to other users through return flow.  Instream diversion means that there is more water in the stream and less water to appropriate. and they could lose this habitat. or they will lose their right. it will always be recognized as beneficial.  Not everyone agrees with once beneficial always beneficial. and all wasteful uses must be discontinued. they are regarded as beneficial in many states.  Permissible  irrigation.  NOTE: This issue has not traditionally been litigated much. but here. the public good.  Lack of Incentive  A Western appropriator has not incentive to modernize irrigation in order to save water.  Basic rule is that one can acquire right to water to make a permissible.  Once Beneficial Always Beneficial  The general rule is that once an appropriative use has been declared beneficial.  Non-Wasteful  The use.  Conservation not always a good thing  Irrigation ditches create a habitat for birds and animals. then there will be no issue of quality. such as economic use.  Waste makes conservation during a drought easier  Water conservation technologies require increased energy use. they have to use all of it.

it must only be the beneficial use for which the right was originally given. Grimes submitted claim for 3 CFS of water.  On appeal. (California—1971): 107 year old appropriation right in which whole creek was appropriated.  Erickson v. but there are other factors to consider.  Therefore there is a massive amount of inefficient use of water in the West. Grimes submitted claims to his rights. the water that is saved because of X’s investment in efficiency benefits someone else.  Diverting water to kill gophers is not devoted to beneficial use and cannot continue.  Note: There may be some benefit to drowning gophers. . drowning gophers is not beneficial.  Given the distance.  Takings Argument  A vested water right is a type of private property that is subject to the 5 th Amendment’s prohibition against takings without just compensation. Hall suggests that we take the traditional custom approach to determine whether a use is reasonable or if it constitutes waste.  An appropriator is entitled to make reasonable beneficial use of the water according to the general custom of the locality.  This is the standard in most states.  Or the market can function by requiring the downstream appropriator who would benefit to pay the upstream appropriator the cost of economizing his system. drowning of gophers is not reasonable. v.  State Department of Ecology v. so long as that custom does not involve unnecessary waste. Queen Valley Ranch Co.  In the even that P pays for a better conveyance system. Grimes (Washington—1993): Department of Ecology submitted a petition for clarification of existing rights.3 CFS.  Determining Reasonability of Use  The agency did not use the local custom to determine whether Grimes’ use was efficient. like another appropriator downstream.5 miles away from the farm where the water was used.  As a general rules the court will look to the traditional custom of the locality in determining whether a use is reasonable or constitutes waste.  There is no irrigation benefit to drowning gophers. and the use for which this appropriation was given was irrigation.  NOTE: This Reasonable Efficiency Test based on scientific finding is NOT the black letter rule.  This is an opportunity for legal solutions to play a role. not matter how long it is continued. and in the winter he used it to drown gophers. he is entitled to make a reasonable use of the water according to general custom of the locality as long as it does not involve unnecessary waste.Water Law Outline Professor Noah Hall – Winter 2012 Page 17 of 51  Instead. but in terms of the appropriative right. but the court did say that the parties need to go work it out themselves.  Reasoning   Insofar as diversion exceeds the amount reasonably necessary for beneficial purposes. five-sixths of the water was lost in conveyance due to sand and hot desert (seepage and evaporation). Grimes appealed. (California—1935): Farmer was using water in the summer for irrigation.  This is somewhat of an aberration. it is contrary to policy of law and confers no title.  BUT an appropriator cannot be compelled to divert according to the most scientific methods known  In Western States. Lindsay-Strathmore Irrigation Dist. But as Senior Appropriator. D might have to give up 5/6 th of the water because that is the amount of his waste.  Tulare Irrigation Dist. he would still be guaranteed his 1/6th even in a dry year. This is a special case because the court is reviewing an agency decision and must give the agency deference and discretion.  Plaintiff defends on the grounds that this is the local custom for transporting water. D’s use was not necessarily found to be wasteful.  Actors who need the water for a more beneficial purpose like a municipality providing for a city’s domestic water needs can try and define the conveyance losses or over-watering losses as waste so that the user must find a way to free it up for the public. They used scientific reports of what would be reasonably efficient.  An appropriator is not required to divert according to the most scientific method known. but the referee granted only 1.  In Eastern States.  NOTE: Although the trial court’s holding based on traditional custom was overturned. but it could be reasoned that it is not related to the use for irrigation. because the general custom is to get rid of gophers.  Traditional custom plays a part.  Creek was 2.  BUT the court here finds that this is not necessarily the appropriate measure of a reasonable use.

there is no property right to the wasteful portion of use.  If downstream lines the ditch.  Salvaged Water  The court holds that salvaged water is water that belongs to the system that would originally go to waste. not to the salvager. . It is salvaged in that it is recovered from the stream by offsetting existing uses or losses.  Developed water.  This is because an appropriator has a right ONLY to the amount of water he can put to beneficial use. and because there is no property right.  EDF is claiming that if EBMUD is granted a new appropriation.  One person’s waste might be something that other people want. there can be no taking. East Bay Municipal Utility District (California—1973): Plaintiff. it will use it in a wasteful way.  The question is whether he should have applied for the right to use the surplus water running off his land. these states have enacted laws that give the appropriator the benefit of his conservation. he is required to return 25% to the state which is reserved for instream flow. claims that EBMUD’s municipal uses are wasteful of its existing appropriation.  So the following case represents an effort to use the doctrine in a very unconventional way. and Shelton stole the water from the thieves. Shelton Farms kills and removes a lot of water-consuming weeds so that he could use the surplus water gained in their absence. waste doctrine is invoked (at most) to limit the amount an appropriator can use of his existing appropriation. water goes back into the system and next downstream in line gets it.  The court holds that any practice. is water that would not be in a system but for human effort.  Oregon Appropriation Conservation  Same as California EXCEPT when an appropriator in Oregon sells the water he has conserved. on the other hand. Salvaged water. whether through water saving procedures or otherwise. and some of it was running over his land. Imperial Irrigation District: Alleged Waste and Unreasonable Use of Water (California Water Resources Control Board— 1994): X is fighting for the right to line his canal so that he can get the water that would otherwise seep out. EDF.  The plants that use a lot of water are thieves that stole water from the system. he doesn’t get the extra water. Some Modern Developments [California/Oregon]  California and Oregon think that it is ridiculous that appropriators who conserve cannot have a right to the saved water. Shelton Farms Inc. v.  An upstream user could negotiate with the downstream user who would benefit from his conservation and try to get the downstream user to pay for the investment cost of more efficient technology. because it usually becomes return flow that Y gets. so EBMUD should not be able to make new appropriations. that reduce the quantity of water actually taken serves the benefit of other water users and DOES NOT create a right to use the waters saved NOR to sell the waters saved NOR to apply them to some adjacent property having no appurtenant water rights. Southeastern Colorado Water Conservation District v.  AND that if EBMUD could just recycle its current waste water it wouldn’t need the appropriation it is applying for.  This creates a huge disincentive for people to find ways to put more water in the stream and reduce water use. Salt River Valley Water Users Assn. in contrast. As such. water saved by an appropriator who ceases wasteful use goes back into the river and is available for  the next most senior appropriator. Y is opposing X’s capturing of the seepage. Salvage and Beneficial Use  In ordinary circumstances. He improved his ditches by lining them with concrete and diverted the saved water to another part of his land.  NOTE: Nothing in the appropriative system allows you to sell your water. is already in the system and simply freed up or recovered.  California Appropriation Conservation  An appropriator may keep or sell water that is saved through conservation/efficiency improvements.  The policy choice is to let the conserved water go down to other appropriators.Water Law Outline Professor Noah Hall – Winter 2012 Page 18 of 51  BUT anytime the use can be limited (is not beneficial).  Environmental Defense Fund v. (Colorado—1974): The Arkansas River has been fully appropriated for over 100 years. It is subject to appropriation and belongs to the stream.  It can’t be sold or used. so appropriators have no incentive to conserve. and he can’t sell it  If the upstream lines the ditch.    Wasteful Use as a Constraint on New Appropriation  Traditionally. Kovacovich (Arizona—1966): D was not using all of his water effectively. so this is something the states have added on themselves.

 P has an appropriative right to the seepage that is senior to any others who want to use that water. which requires that resources be used to the highest extent possible.  There is almost NO case law that require users to conserve water.Water Law Outline Professor Noah Hall – Winter 2012 Page 19 of 51  The Import of This Case:  Basically EDF is asking the court to require EBMUD to use reclaimed water comprised of rain. but there are some exceptions.  This will be allowed even if it harms a junior AS LONG AS nothing occurs that would constitute a change in use AND it does not exceed any consumptive amount attached to the diversion right. and treated sewage water. then it is a tributary of the natural water body and the appropriator does not have a right to it if it would deprive other more senior appropriators on the river.  General Rule for Seepage Appropriator  If seepage appropriator’s land is situated so that seepage would naturally run through the land and back to the original river. He captures the runoff in the vagrant form known as diffused surface water.  BUT the water that P has a right to is the water that comes out of the ditch. the return flow or seepage is but to a different use than that for which the right was originally granted it will not be allowed. and. MUCH LESS that requires users to recycle water.  Reuse  If after recapture. It is captured and reused within the original land AND  2.  What the Court Decided:  THIS CASE IS NOT ACTUALLY LAW!! IT IS NOT EVEN A PUBLISHED OPINION AND COULD NOT BE USED AS A REFERENCE. but drains off the land. and it plays a very large role in determining whether it will be allowed.  Recapture  occurs when a user diverts a certain amount of water.  This is usually a successful argument. P has a legal right to the seepage. then there will be no water over which P could exercise her right  General Rule for Owner of Seepage Source  An owner of land may always recapture waste and seepage water as against an adjoining owner who had been taking that water from a source other than a natural steam. as is common with traditional irrigation techniques. D is refusing P the right of way.  He will also argue that senior’s right is limited by the amount he originally beneficially applied and consumptively used on his land. uses only a portion of it.  Can D line his ditch to stop the seepage water from getting to P?  Yes.  Usually accomplished by building a ditch at the lowest point of appropriator’s land. .  The court did not say that EBMUD had to recycle. the person benefitting from the seepage before it is recaptured is usually not an appropriator from the stream where the water was taken. runoff. and will argue that he has depended on the runoff and should be treated like any other appropriator.  Direct Recycling  When a user directly recycles his own water and uses it again before returning it to the stream  This is by no means the norm in the United States. an appropriator has often been irrigating. SEEPAGE  In the case of seepage. or seeps into the ground where others use it. Reuse  There is a big difference between recapture and reuse. It is used for the original purpose of the right.  Bower v. BUT D can stop the seepage whenever he wants.  The court holds that P has right to water seepage and may go onto D’s land to get it. Big Horn Canal Association (Wyoming—1957): P is a seepage appropriator who claims runoff surface water from D’s land. but she needs a right of way onto D’s land to get the seepage and carry it away and put it to good use.  He is a seepage appropriator. and then recaptures the seepage or excess and puts it to that same beneficial use on the same land.  Recapture v.  It is merely an interesting application of California’s constitution. Rights of Recapture  In recapture cases. a certain amount of water is not consumed. AS LONG AS  1.  This situation may persist for some time until the appropriator decides to recapture the runoff and reuse it. but they did hold that EDF was entitled to make the argument. If D lines the ditch so that no water comes out.  He opposes the owner’s being able to recapture the seepage from him.

 Private Storage  Not Allowed  Public Storage  OK (Reservoirs.  Court Determines  1. City does not own the water.  NOTE: This interbasin transfer exception is kind of a fiction because it ignores the circumstances of the other watershed.  InterBasin Exception  A user can keep the water in storage if it is brought from another watershed because it operates under the doctrine of developed water.  Note the Distinctions  The water itself is public water. City can put its sewage effluent to any reasonable uses it sees fit.Water Law Outline Professor Noah Hall – Winter 2012 Page 20 of 51  BUT if the seepage would run off in another direction and not return to the original water source. Two downstream appropriators objected. In order to be granted appropriative rights.  2. SELLING AND REUSING SEWAGE  Today water is put back in use in several ways.  This is because effluent water is subject to legislation. APPROPRIATION FOR USE AND REUSE  Water Supply and Storage Co v. it is subject to appropriation by the next party in line.  It is true that we want to encourage users to continue using their waste water until the fully utilize it. v.  Speculation is not allowed because it is the first step towards a water market.  BUT as soon as the effluent goes back into the stream. there must be a specific PURPOSE and INTENT to use the water. BUT the city is under no obligation to discharge the effluent back into the source. Curtis (Colorado—1987): Applicant filed for a water right for Trap Lake II. Long (Arizona—1999): City wants to inter into a long-term contract to sell its wastewater. a proposed reservoir on the side of presently existing Trap Lake. then the landowner can appropriate the seepage. US Bureau of Reclamation) . BUT the waste water is neither salvage nor developed water.  Arizona Public Service Co. but no legislation has been passed yet that actually regulates effluent.  Anti-Speculation Doctrine  Holding water for future investment purposes is not a beneficial use. from replenishing groundwater basins to irrigating golf courses.  An important question is whether cities can sell or reuse their sewage. He requested a ruling that water may be used and reused and put to a succession of uses until totally consumed. the downstream appropriators do not have a right to it. it is merely selling an interest in the water that does not re-enter the natural stream. Downstream users can appropriate the sewage effluent only from the original source. arguing that most of the water that they relied on to satisfy their needs was the City’s effluent discharge that the city is now trying to sell.  BUT here there was not clear intent as to what the water was going to be used and reused for.  As long as the city does not return the effluent to the stream.  3.

 Permit issued. the agency’s decision will be affirmed. File an application with the board  3. From Natural Stream  Policy Filter  AND some states (California) have an additional requirement that the water use be in the Public Interest.  Board issued the permit on the grounds that there is the potential that it will be put to beneficial use .  The Review  Once the application is filed:  The Board publishes notice of the application in some public record. and most Eastern states do as well. The Public Interest Standard  At times.  Central Delta Water Agency v.  It is not a weighing of the evidence. DWP figured that because California is growing. Water which has been appropriated and subsequently abandoned after previous appropriator failed to put it to beneficial use or  3. Be a specific applicant or water user  2. depending on the state. How Permit Systems Are Administered  California’s system is typical of most administrative water systems.  Appeal goes to judicial review in the trial court or state court of appeals. they would eventually be able to sell the water  The DWP did not know what the water would be used for. Intend to put the water to beneficial use  4. usually the federal or state register. the agency includes a public interest requirement for granting a permit.  Unappropriated Water  Defined as:  1.Water Law Outline Professor Noah Hall – Winter 2012 Page 21 of 51 PERMIT SYSTEMS AND ADMINISTERED WATER RIGHTS Introduction  All Western States except for Colorado have a permit system for administering water rights. Beneficial Use  2.  The standard or review is whether or not the agency was arbitrary and capricious in its decision.  Today permit agencies have a much broader authority and more substantial role than in the past. Diversion  4. There must be enough unappropriated water for the proposed use. once it has been appropriated. Water.  If anyone is going to protest.  If the application was issues against the protest of interested parties.  This rarely happens. the protesters can appeal.  If application is not protested. but they simply assumed they could eventually sell it.  Application Requirements  In actually applying for the permit. there must:  1.  They can grant and condition permits in light of reservations of water for instream use or future developments and may even weigh the public interest in their decision. flows back into an underground channel or any surface water body.  As long has the agency had substantive evidence for its decision. State Water Resources Control Board (California—2004): Delta Wetlands Project wants to build some dams in order to create water reservoirs to eventually sell. there is a protest period during which those who appose the appropriation may try to convince the agency to refuse to grant the appropriation. Water which has never been appropriated or  2. Water not already appropriated  3. it is whether the Agency had any reason to make its decision.  Agency must have substantial evidence on which to base a denial. It is not just a weighing of which argument is better.  The Process:  Prerequisites  In order to get a permit the applicant must first show that  1. no hearing is required.

 Also people buy property next to water because they want to be next to water. Effect of the economic activity resulting from appropriation  3.  If a protestor is challenging the standard the agency used. it goes to the person who got there first. Basin of Origin as a Test of the Public Interest  Riparian law doctrinally limits out of basin transfer and use. it may be denied. though obvious. he has the burden of showing that the agency did not use a standard or its standard was baseless.  Reasoning Speculation Not in Public Interest  The argument against water speculation is that there are some things that we don’t trust the private marketplace to take the best care of. Dunn (Idaho—1985): Trust company sought to appropriate water from Billingsley Creek.  But because the right to water is often connected to land.  Benefits of Water Marketing:  Efficient  Water being awarded to the highest bidder is efficient from an economic perspective  The current system does not give water to those who value it most. . deserve specific mention  Assuring minimum stream flows  Discouraging waste  Encouraging conservation  The purpose of this case is to illustrate that the court/agency can define the public interest standard to mean whatever it wants it to mean. It based its determination on the following factors:  1. Harm to other persons resulting from proposed appropriation  7.  People are concerned about the water being taken out of the locality to other areas. Effect on fish and game resources and public recreation opportunities  4.  Permit applicant has the burden of showing that he has met the public interest standard. Effect on public health  5. Water Markets  Water markets refer to the economic system of selling the rights to water. and they don’t want the water to be taken somewhere else. Under Idaho law. unless otherwise specified.  BUT there is also an economic element: Water is essential to development.  NOTE: The right to use water is also limited to that amount reasonably required for whatever beneficial use the water will be used for.  Shokal v. Effect of loss of alternate uses of water that might be made within reasonable time if not precluded or hindered by proposed appropriation  6. water use does not transcend watershed lines. Plaintiffs sought judicial review.  The interesting question then is the extent to which water can be severed from the land or sold elsewhere by the owner. If you have no intended beneficial use.  The court held that the agency had not properly determined whether issuance of this permit was in the public interest.Water Law Outline Professor Noah Hall – Winter 2012 Page 22 of 51  The California Court of Appeals overturned the board’s issuance of a permit based on lack of beneficial use and on prior appropriation’s prohibition of storage of water for speculation. Permit was issued.  Court also said that such storage and speculation was not in the public interest.  Several other elements.  Basis of Origin as Test of Public Interest and Limit on Out of Basin Transfer  Is the water more beneficial to the place where it is going than where it came from?  This is similar to a riparian concern.  Black letter rule on speculation of water in California is that one may not speculate and hold water for future speculative use.  The Appropriative Right is attached to the land and is transferred with the sale of the land. Intent and ability of the applicant to complete the appropriation and  8. if the appropriation conflicts with the public interest. Benefit to applicant from proposed appropriation  2. so in the East.  SO the doctrine of weighing the public interest has expanded to limit out of basin transfer in certain instances. then impossible to determine limit.  BUT in the Western Appropriation states.  There is no assurance that the water we allow someone to store in a reservoir will eventually be sold to the party who will make the best use of it. out of basin transfer is not so limited. Effect upon access to navigable public waters. one of the main focuses of water markets is whether the rights can be separated from the land and sold.

 Encourages Cleanup of Waste (Reduce Contaminated Return Flow)  Because waste could be sold for purposes like cooling at energy plants. but the ecosystem’s needs change all the time  What would the money go toward?  Isn’t the government a collective body of people anyway? Legal Oversight of Water Transfers  The Process of Transferring/Selling Water Rights  Because water rights were traditionally connected to the land.  When Transfer Application Required  A user must file an application and gain approval any time he plans to change any of the following:  1. Place where water is used  4.  BUT it would eliminate the status quo. .  If the water market took over.  Our basic needs will not change.  Eliminates Deadweight Loss  When a user buys land for water rights in an appropriative system. in some states.  Michigan Come and Take It Example  Michigan residents have a gut reaction against allowing people to take water out of Lake Michigan to bottle and sell. so why should this be any different.  Encourages Conservation  If a water owner could sell the surplus he saved by lining his ditches. and technology have changed. demand.  Faster Allocation  There would not need to be long-lasting administrative disputes because the allocation would be decided on the sale. Point at which water is diverted  2.  Disadvantages of Water Marketing  Encourages High Speculation  This would lead to less available water that is actively being used for beneficial use.  Accelerates Decline of Rural Agricultural Economies Many communities that are small and rely on agriculture are only able to survive because they have a very longstanding appropriative right.  But it could lead to over appropriation  Solution: Government Auction  First. the sale of water rights is still prohibited.  Water is a Public Good  Water markets take a public good and profit from public need. Most would wait on a group to pay to secure the instream rights. Nature of the use  After Application Filed:  Agency/Court publishes notice of proposed change  Hearing  Ruling  Appeal  Limitations on Transfer/Change  The change applied for cannot be so different as to constitute an entirely new use. Conditions. then that empty land could go to good use. and New Technology  Longstanding Appropriative Rights date back into history. so there is little updating or revamping even when use. it would create an incentive to conserve. he must go through an application process very similar to the permit system for when water rights are granted.  Allows for Allocation to Adjust to Changing Water Demands.  BUT NOTE: As a practical matter. the issue was merely whether or not those rights could be severed.  Would also allow the sale of water for instream uses  BUT there is a free rider problem. these communities would die. the government makes sure that basic human needs are met (3% consumed by human)  Then government makes sure ecosystem’s needs are met (30-50% needed for ecosystem)  Then asks if excess should go to high bidder  Presumption that person who values it the most is the person who can pay for it.Water Law Outline Professor Noah Hall – Winter 2012 Page 23 of 51  Property can usually be sold. which people have depended on to develop their current use. Time of year when water is used  3. he often does not use the land because his real goal was to get the rights.  There is also the danger that a company could get a monopoly. An individual would not put up the money to benefit everyone else.  Now Western States also allow transfer and sale of water rights with varying legal restrictions. being able to sell it would encourage waste collection.  But there is plenty of water in the lake.  The Application for Transfer of Rights  When a user wants to transfer or sell water rights.  If rights could be severed.

 NOTE: These rules make water transfers extremely difficult and very rare because:  Have to find a buyer who is very similar to seller in terms of use. He merely had an application. location.  Approval of application merely authorizes successful applicant to begin construction and take other measure to perfect appropriation. type of use.  No harm certainly applies to quantity. then it will violate the No Harm Rule. but it also applies to quality if another appropriator depends on a certain quality for his use. Little Blue assigned its four applications to the Catherland Reclamation District.Water Law Outline Professor Noah Hall – Winter 2012 Page 24 of 51  BUT the main concern is that any material change will harm other appropriators.  Merely a request for permission. AND such a broad and undefined change would constitute a new right entirely and thus violates the anti-speculation doctrine.  No Speculation  If a change is so vastly different from the original appropriation and beneficial use that it would constitute an entirely new right OR if the change is so speculative and nebulous that it’s beneficial use is unclear. Southern Colorado Water Conservancy District (Colorado—2005): High Plains petitioned to change its water use from irrigation to any one of 50 other uses. but the parties are able to fashion it in such a way to avoid the harm.  High Plains A&M v. can acquire and dispose of water rights. certain limits are imposed. as long as it is being put to the same beneficial use. then it may be allowed.  In Re Application of the Catherland Reclamation District (Nebraska—1988): Little Blue filed four applications to divert and impound water from the Little Blue River. Little Blue did not have a right.  Appeals Court overturned and held that while a user.  Recapture But No Change  BUT the law does permit water users to recapture runoff before it reaches a natural stream even over the objections of other appropriators.  Because the proposed use includes 50 possible uses it is impossible to know if other appropriators will be harmed. While the applications were still pending. .  Nebraska Director of Water Resources (The Agency) approved the assignment and granted the application.  Historical Use Limitation  Another objection to a proposed change in use is that a user has not historically used his full water right and has been wasting water.  The court denies the change for two reasons. through the Agency.  Applications for water rights are not personal property. it would encourage collusion and thereby defeat the rights of other appropriators on the river.  If the person could sell their application. So. then it violates the no speculation doctrine. but the rule is phrased such that a change will only be approved it if will not injure other appropriators (junior or senior) or is conditioned in a way that avoids the injury.  NOTE: If a proposed change would cause harm. especially junior appropriators. and time of use  No Harm Caused by Change  The common objective is to protect junior appropriators.  REMEMBER Return Flow and Rights of Recapture  Change and Reuse  If an appropriator proposes to use the water more efficiently so that he can use the extra saved for a materially changed use such that it limits the amount of return flow available to the next appropriator.  The argument here is that the unused/wasted water has been abandoned.

the Oklahoma legislature enacted a statute that terminated unused Riparian water rights.  Regulatory Takings Challenges (Lucas v.  Basically. . riparians were limited in their water rights to  Water used for domestic purposes (household.  Under Oklahoma statute (discussed below). then it is a taking.  Only compensable if Regulation wipes out 90-95% (basically total) of the property’s value. livestock.  Avoiding the Constitutional Issue  California has had the most trouble trying to limit Riparian Water rights as they tried to transfer from Riparian to an appropriative system.  ―Bundle Of Sticks” Theory  if the contested use was not one acquired by the owner at purchase. and if the government were an ordinary citizen it would lose in court.”  A Riparian does not own the water in the stream. irrigation)  Any pre-existing beneficial use that the riparian had properly validated at some time prior  Franco-American Charlaise Ltd. it is unconstitutional.  The Oklahoma Constitution specifically defines property to include “any valuable interest. it is not a taking.  Nuisance & Property Law  if the government can identify background principles of nuisance and property law that prohibit the uses the landowner intends in the circumstances in which the property is presently found. BUT if there was no pre-existing beneficial use.  This action arose when the City tried to appropriate a bunch of water.  Any physical taking of any portion of an owner’s property is compensable.Water Law Outline Professor Noah Hall – Winter 2012 Page 25 of 51 CONSTITUTIONAL PROTECTION OF EXISTING WATER RIGHTS Takings Challenges Introduction  A takings challenge usually arises when the government changes the laws regarding property in a way that impacts a user’s right to use water. and because the right has value (even though it is not owned property). Coastal Council. Oklahoma Water Resources Board (Oklahoma—1990): 20 years before this action. 1992):  Not a Taking if Regulation Grounded in Background Principles of Law  If gov’t regulation is grounded in background principles in the common law.  Regulatory Taking  A regulatory taking prohibits an owner from fully using his property because of the passage of some new law or regulation. It also gave Riparians the opportunity to perfect and establish all beneficial uses.  Because the statue takes that right without compensation. but is seeking an appropriative right to the waters that used to be Riparian but were extinguished when the legislation was passed.  To what degree are water rights constitutionally protected property  Are the standards for determining a taking of water the same as for land?  Types of Takings in General  Physical Takings  A physical taking is a taking per se and is compensable. is not a regulatory taking b/c under common law neighbors could bring suit and court could adjudicate the conduct.  Legislature declared  All surface water must be appropriated except where water are or may be reasonably needed for useful and beneficial purposes upon lands riparian thereto. v. Government regulation is like a preemptive lawsuit. S. the takings claim must be rejected at the outset due to lack of a protected property interest. (2) any pre-existing beneficial use.  The Riparians rush into the action and claim that the state has been taken without compensation in violation of the Oklahoma Constitution. The statute limited water use to (1) domestic water. but he may not be able to use it in a way that is economically feasible.  But if the government challenges or infringes upon a water right.  The owner still owns the property. BUT he does own a vested common law right to the present AND future reasonable use of the stream.  The City is not Riparian. then the takings claim must be rejected Takings Challenges  Statutory Abolition of Unexercised Riparian Rights  Riparian water users have consistently challenged statutes that automatically abolish unused riparian rights. then the statute required the riparian to seek a water right through the appropriative system. if the government challenges someone’s right or takes water in the same way that a citizen LEGALLY could.C.

 Waste reduction. he can sell the excess as long as he puts 25% of it back in the river. (2) If it is regulatory.  Court holds that board is not altogether authorized to extinguish a riparian’s right to future reasonable use.  No existing use would be cut off. Physical invasions are always compensable.  One reason is that there is a 10 year lead time here while the Oklahoma statute automatically and immediately converted the riparian right to the appropriative system.  Requantifying water rights using different units than previously used. Judicial Takings  Judicial takings bring up the issue of whether the courts have a greater degree of freedom to change a user’s water rights than the legislature. BUT the court did uphold the provision that limited riparians to beneficial use. State (Montana). Courts have rejected the following takings challenges:  Requiring holders of water rights that are not part of the state’s administrative system to register right w/ the state. subject to reasonable and beneficial use.  The statute recognizes that a landowner has historically possessed a common law right to future use of water in a system.  Abandonment Provision held Unconstitutional.  Analyzing takings issues.  The issue here is whether such a provision is Constitutional.  In other words.  Oregon Model  Sax also suggests the Oregon Model.  Wants the government to get involved in regulation of water use so that more water is kept in the river. allocated to the state for instream use. which holds that if a water user conserves water. Town of Eureka c.  State can deny it to the next junior because he would not have been getting it anyway. BUT it also says that the board may make any determinations as to scope and priority of the right that it deems necessary to further the state’s interest in fostering reasonable and beneficial use of water resources.  This is completely opposite to the Oklahoma decision. and it is a valid exercise of police power to regulate it in order to preserve it for the future. it should be returned to the river. . then ask if it compensable. Department of Ecology v.  Court are generally deferential to the state of this type of legislation.  The state is giving the user 75% of water he would not otherwise have. When is it compensable? When the regulation so greatly diminished the value of the property that it is no longer economically viable.  According to Sax.  Sax’s basic point is that water is a public good.”  This means that framers of the statute recognized that legislature should be granted broad flexibility to determine appropriate means for protecting water in the state. BUT also recognizes that legislature can “enact laws to further the policy in the statute. there are only two ways to win a takings argument: physical invasion or deprive of all  The release requirement. McDonald v. Ask (1) Physical or Regulatory Taking.  Sax argues that this is not a taking.  Suggests that courts use the waste doctrine:  If water is being wasted. the board cannot legally extinguish the right BUT it can regulate it to the point of virtual nonexistence. Adsit (Washington)  Retroactively applying forfeiture statute to invalidate water rights.  According to Hall. Cut back on existing wasteful uses.Water Law Outline Professor Noah Hall – Winter 2012 Page 26 of 51  AND Non-use of water by a riparian for any period of 10 consecutive years after passage of the act shall be deemed to be a conclusive presumption that the use of such portions is not needed upon the lands and thus it is abandoned. The regulation most likely to be challenged are those that require existing appropriators to make releases in order to augment stream flows.  In re Waters of Long Valley Creek System (California—1979): Riparian owner had used water on 89 acres for 60 years. Office of State Engineer (Nevada). the Black Letter Rule here is that the 10 year lead time that had to precede the abandonment of a riparian right and convert it to an appropriative system was not unconstitutional and did not constitute a taking.  Courts have been willing to permit the abolition of wasted or unused water rights. it is a tax. He applies for a permit to irrigate other 2884 Acres.  Joseph Sax’s Argument  Sax advocates for the forced giving up of water rights to the state.  1913 Water Commission Act got rid of the Riparian system in California by saying that 10 years of non-use without intervening use constituted abandonment.

 The court says that this is not a taking because the law was misinterpreted. Robinson (Hawaii—1973): There is a dispute between sugar growers because of a system of carrying water out of the watershed to far away sugar fields. and/or statute. the court is just saying what the law is and what rights actually existed.  We will not be tested on Hawaii Water Law.  State courts are usually more favorable for arguing something is a taking than Federal Courts. a user would have to show that the decision is a radical change or total departure from any precedent.  Also Note Federal versus State Courts  If the state supreme court makes a decision that a user wants to argue as a taking.Water Law Outline Professor Noah Hall – Winter 2012 Page 27 of 51  A judicial taking is where a court not following precedent arguably results in a change in water law. the court is saying the water rights are appurtenant to the land and can only be used in connection with the land. but it serves as a good example of when a takings challenge based on a judicial taking might succeed.  In other words.  Judicial Takings Challenges Bottom Line  In order to argue that a judicial decision is a taking. .  McBryde Sugar Co.  This holding would arguably be a taking because it was a drastic departure from what the law was expected to be.  BUT it is impossible to find in actual case law because courts will not generally change their own decision. he would probably go to federal district court.  Also because a judge is responsible for interpreting current law.  Hawaii SC held that right to water was specifically reserved for the people of Hawaii for the public good and that water could not be transferred. v.  Theoretically a court decision could be a taking because it is a state actor and it can count as a regulatory taking. common-law background principles.

Land above pumped aquifer depresses.  Well Interference  As groundwater is withdrawn through a well.  Subsidence  Generally occurs because the force of gravity combined with the lower water level in a confined aquifer. The cone of depression in an unconfined aquifer is smaller and expands slower than that of a confined aquifer. and uniform in temperature. readily abundant. Advantages to Groundwater:  Widely available. Water filtrates through the surface and the force of gravity pulls it to a confining bed.  Geographically speaking. Groundwater. navigation. Water from these streams seeps into the water table. It is not polluted.  More common in the west.Water Law Outline Professor Noah Hall – Winter 2012 Page 28 of 51 GROUNDWATER DOCTRINE Introduction to Groundwater  Why is groundwater treated differently than surface water when for much of the country. nor is its extent or network. the water table. an impermeable layer. Hydrogeology and Informational Limits  Basic Principles of Hydrology  The space below the surface of the earth stores groundwater. groundwater is sometimes a finite/fossil resource or recharges slowly. groundwater and surface water is hydrologically connected and as a matter of science. Needs a screen to filter out the junk. Lower quality water. The area where the water collects is called the zone of saturation. etc…. it pulls surrounding water more powerfully and may result in well interference. the water level in the well declines and water moves from the surrounding aquifer into the well. Uses no power. but it moves very slowly. recreation. just allows water to break through confining layer. confined by a confining bed. Use of Groundwater  Surface water has far more competing uses than groundwater. Surface water can be used for aesthetics. Well penetrates confining layer and water rises up. Disadvantages to Groundwater  Access is expensive. on the other hand. The water level in a confined aquifer is measured by the potentiometric surface (pressure). is purely used for economic purposes.  Losing Stream  Stream that feeds from runoff.  Subsidence. Groundwater is much more expensive to access.  High oxygen levels and consistent temperature. Confined Aquifer:  An unconfined aquifer is from the top down a permeable surface.  Unconfined v.  Most common type of stream.  As the cone of depression expands.  Just the wet dirt under the land. and the only contaminants are natural.  Does not recharge.  Information is lacking. Pumping requires a lot of energy. highly oxygenated.  Artesian Well is an example.  Higher quality than unconfined.  Tends to be very clean. it is the exact same resource?  Technology and the evolution of law did not come around until much later than the law for surface water.     .  Does not generally require treatment. As the cone of depression from the well expands. The groundwater moves. While surface water is readily renewable.  More desirable because it will have a more consistent flow and high quality (runoff water that feeds losing streams is more polluted). and a user does not necessarily have to pay a higher land price (like a riparian) to access it.  Gaining Stream  A stream that takes water from ground water.  The modes of access are different.  A confined aquifer is surrounded by impermeable material. it can adversely affect the ability of other wells to draw water. Groundwater is not as visible.  Cone of Depression  When a well is dug it creates a cone of depression. it is accessible everywhere in the country.

 A well digger may not know he is going to be taking from other peoples’ wells. Dispute Resolution Principle No Connection to Land Required On-Tract Use Only CAPTURE NOTE: Groundwater obtained through pure Rule of Capture or through American Reasonable Use will not be subject to Physical taking because anyone can dig a bigger well and claim the water. they should leave it to the legislature.  It does not matter when a person gets the water or what he will use the water for. SO it will be subject to a regulatory takings challenge if the government prohibits a user from taking from a certain area or from taking more than a certain amount or if the government claims the water for itself.Water Law Outline Professor Noah Hall – Winter 2012 Page 29 of 51 The 5 Doctrines of Groundwater Law GENERAL DOCTRINES OF GROUNDWATER LAW NOTE: These are not necessarily doctrines. American Reasonable Use Rule Absolute Ownership American Reasonable Use is NOT actually reasonable use. it belongs to him. It is merely Rule of Capture limited to On-Tract Use PRIORITY Prior Appropriation ------------------------------------ Correlative Rights Restatement 2nd Torts § 858 Reasonable Use SHARING Exact same as Correlative Reasonable Use but no distinction between on-tract or off-tract use. but a dispute will take into account on-tract and off-tract use. and Off can only have surplus if there is any. Each State’s approach to Groundwater more or less fits into one of these categories.  Applications:  Absolute Ownership  Once a user captures the water. BUT the water is usually viewed as property rather than as a right.  Reasons For Keeping Rule of Capture  Have had it in the past. Never use balancing Factors for this). Correlative Rights are exactly the same as Restatement Reasonable Use. In On/Off Dispute. (Has nothing to do with Riparian Reasonable Use or Restatement Factors. In On/On or Off/Off. They are more like descriptions. Removing Rule of Capture would hamper development.  There is not a lot of information to counter this argument.  Promotes development. if someone captures the water. he is only limited in that he must use the water On-Tract. he can use it for whatever he wants.  American Reasonable Use  Once a user captures it. Rule of Capture  This is less of a doctrine or legal framework and more of a rule of Non-Liability in tort as opposed to property ownership. because the rule basically says. Not limited by On-Tract use. if people want to change it. Reasonable Use balancing test will be applied.  It is not about priority or right. but it is total BS according to Hall. On will win.  Don’t want to hold people responsible for consequences they could not foresee. .

Nestle’s goes down 1000 feet.  BUT Courts do not focus on the proportionality allotment anymore and instead focus on reasonable use.  If there is not a surplus. The 1 acre user should get 1/4 of the water. then it would be a REGULATORY taking.  Usually an injunction would not be the best solution because the most economically efficient outcome is for Martin to dig a deeper well and for the city to pay for it.  The off-tract user will only be allowed to use the surplus left over after the on-tract user gets as much water as is reasonably necessary for his on-tract purposes.  BUT the special facts of this case make an economic solution untenable. Off-Tract  In a correlative rights state when there is a dispute between users with the same on/off tract status.  Furthermore. and off-tract use will not be protected.  Katz v. and the 3 acre user should get 3/4 of the water.  If a user builds a well that is not above the water source but still pulls water from the underground water source. and if there are two competing users with same tract status. and the city is planning to pump the water off-tract.  Martin wants an injunction because she claims that the city’s pumping will deplete and/or irreparably damage her will. Whoever can pump the most gets it. In American Reasonable Use. reasonable use balancing test will be employed. On-Tract OR Off-Tract v. Wilkinshaw (California—1903): Plaintiffs sued newer water users who dried up the well with off-tract uses. without an injunction.  It has nothing to do with reasonable use  It is simply the Rule of Capture with the added limitation that the water must be used on-tract. . but Sipriano’s well only goes down 200 feet. Correlative Rights  Correlative rights doctrine IS a reasonable use balancing test BUT ONLY in certain situations. It is determined by the property on which the well exists.  On-Tract User versus Off-Tract User  If there is a dispute in a correlative rights jurisdiction between an on-tract user and an off-tract user.Water Law Outline Professor Noah Hall – Winter 2012 Page 30 of 51  Sipriano v. Nestle’s well was bigger and more powerful and sucked water away from neighbors.  Sipriano and Neighbors were there first.  Court holds that Martin’s use is protected and the City cannot dig their well because Martin is using the water on-tract. Great Spring Waters of America [Nestle] (Texas—1999): Well dispute arises when Nestle begins pumping large amounts of groundwater the dries up the neighboring wells. Sipriano cannot recover because Nestle has capture the water.  BUT if the government were to regulate such that a user was not allowed to capture certain water or only capture a certain amount.  Surplus Water  If there is surplus water. the City would win. so the court holds that it will ONLY give protection to users harmed by malicious or extremely egregious wasteful use.  Hall  The rule is essentially no rule. correlative rights will apply a Reasonable Use Balancing Test Analysis.  Martin v. As such.  NOTE: Rule of Capture will never lead to a PHYSICAL takings claim. this will not violate the rule. it will violate the rule. on-tract will always be preferred. Then there would be no measure of economic relief that would compensate Martin.  If the city digs their well here.  The On-Tract limitation is NOT determined by the location of the aquifer or underground water source. the city would go ahead and  NOTE: If this were a rule of Capture state like Texas.  BUT the city is transporting the water from the land in which it was pumped back to the city to supply the city’s water needs. then it may be used by an off-tract user AS LONG AS the on-tract user has gotten what he needs.  If a user builds a pipeline to transfer water from his well to a place off the property. This occurred because of well interference. City of Linden (Alabama—1995): Dispute between a municipality and a landowner over reasonable use of a common aquifer that lies beneath the property of both parties. American Reasonable Use  American Reasonable Use is NOT a reasonable use rule. it could ruin the aquifer altogether.  On-Tract v. even if the property the water ends up on is above the underground water source. Neighbors bring suit.  NOTE: The black letter law of Correlative Rights USED TO BE that the court should award based on proportion of land owned by the user.  If one user owns 1 acre of land and another user owns 3 acres of land.  Texas is a Rule of Capture State. Correlative rights will decide in favor of the on-tract user.

 This case presents a certified question: Does an Ohio landowner have a property interest in the groundwater under his land that is subject to a takings claim?  Under a Restatement 858 Takings claim. Use exceeds reasonable share of annual supply  3. and if the plaintiff would win against the governmental entity. first in right) is the determining factor.Water Law Outline Professor Noah Hall – Winter 2012 Page 31 of 51  California uses correlative rights for groundwater. then it is a taking. the way to decide is to view the governmental entity as a private party.  Prior appropriation works really well in very sustainable. Withdrawal has a direct and substantial impact on a lake or river and causes unreasonable harm. BUT the system breaks down when groundwater has slow recharge or no recharge. Plaintiffs would win because their use is on tract.  Appropriated groundwater may be transferred as long as no harm is suffered  AND when there is a conflict between water users. the City loses and this is a taking. City of Rittman (Ohio—2005): City bought land near Plaintiff’s house and drilled three wells that lowered water table and caused water shortages and lower water quality. high recharge.  California does not like rule of capture because it creates a race to get all of the water.  Court rules that Plaintiffs have a right to the water because they are on-tract users. and the on-tract user will always win. . Use interferes with someone else’s water use  2.  The reason that less disputes arise between on/off tract users is because if a dispute arises. and that Defendants do not have a right to the water because they are off-tract users.  The City was not using the water but instead dewatering the ground to put in a sewer line. Putting the water to beneficial use  3. it means there has been harm to the on-tract user. Only water that has not been appropriated by someone else. Restatement 2nd of Torts § 858 Reasonable Use  Restatement 858  An owner can withdraw water and put it to a beneficial use and not be subject to liability UNLESS:  1.  NOTE: This is almost the same as Correlative rights but there is NO distinction between on-tract and off-tract. Defendants would win because they can keep the water they capture. Prior Appropriation  A right to groundwater under prior appropriation is limited by the following restrictions:  1.  McNamara v. Diverting a specific quantity of water at a specific point  2.  NOTE: Most cases in the correlative system will be dispute between two on-tract users or two-off tract users and will require court to use reasonable use balancing test. Because this interferes with McNamara’s water and is not a beneficial use. In rule of capture. priority (first in time. surface water areas.  In American Reasonable Use.

the user does not own the water. under correlative rights (and comparably under riparian rights). he just has a right to use the water.  Harloff’s water comes from the Verna Wellfield. one landowner could bring an action to have it proportioned.  [Wipeout Rule (Lucas v. it is not a taking because there is no property being taken. then it would be a taking. This will force him to alter his farming. it can dig a deeper well and pump all the water it wants.  It would be a Regulatory taking. The water is part of property (part of the bundle). because the person who can capture water has a property right to that water. District ordered Bamford to cease withdrawing groundwater from nine wells for irrigation use. proportions water in control areas under correlative rights.  Takings in Correlative. and Bamford claimed it was a regulatory taking.  Notes on Groundwater Takings (WILL BE ON EXAM):  Takings in Rule of Capture State (and Possibly American Reasonable Use):  Under rule of capture. Use must not interfere with any preexisting legal use of water  3.  Hearing officer after the agency decision but before this appeal put the burden on the City to show that there was harm when the burden should have been on Harloff to show that there was no harm.  So there would be no Physical taking. Use must be consistent with the public interest.Water Law Outline Professor Noah Hall – Winter 2012 Page 32 of 51 MODERN GROUNDWATER MANAGEMENT DISPUTES AND CRISES Groundwater Legislation and Management  There are a growing number of disputes focused on the collision between groundwater and surfacewater rights. just the right to water. Prior Appropriation.  In a correlative right state.7 feet of water and seriously impact the productivity of the wellfield.  ONLY a taking if:  1.  The expert found that proposed increase would cause an additional drawdown of 1.  The court sees this as a correlative rights state and a correlative rights issue.  Harloff v. There is a total wipeout of all value  2.  Furthermore. City of Sarasota (Florida—1991): Harloff applies for a consumptive use permit and is approved but for a lesser amount by the Water Agency.  City had permit first.  Background Principles of Common Law Under common law of correlative rights. the state has a right to regulate the use. because there is not a surplus of water. and Florida’s requirements are that use must be reasonable and beneficial BUT ALSO that use must not interfere with any preexisting water rights.  Court holds that in a control area the right to use water is not absolute.  Statute Holds That In Order To Obtain a Permit:  1. which establishes some element of prior appropriation in addition to the reasonable and beneficial use element. Use must be reasonable and beneficial  2. . if the government is the user’s neighbor. when govt. or Restatement State:  In these states. and there has been a substantial lowering of the static water level such that wellfield can no longer meet peak demands. Upper Republican Natural Resources District (Nebraska—1994): State Director of Water Resources designated the area involved in the litigation as a control area under state law because there was not enough water to go around. and not merely a right. water is not part of your property.  Court held that Agency’s denial of full amount requested was valid for a combination of reasons.  BUT if the government passed a regulation that limits the amount a user can get. Legislative Regulation and Groundwater Takings Issues  Bamford v. It is a correlative right and when there is not enough for all users. but in most cases it too will be based on a regulatory infringement.  Legislature has power to determine what portions are available for correlative appropriation and what amount is reasonable. a taking could be physical. South Carolina)]  A change in law through regulation (statute or some government action) can constitute a Regulatory Taking.  Therefore. it is not a taking because a nonstate actor could ask for this same apportionment.  Therefore when government proportions the water in control areas in a correlative rights state.

 This is a prior appropriation system. so the groundwater is also surfacewater. Groundwater / Surfacewater Disputes in Other Groundwater Doctrines  The essential starting point is to put all rights to both types of water within the same framework. one for groundwater and one for surfacewater. Groundwater / Surface Water Interconnections   States should focus more on integrating the management of surface water and groundwater. Each had its own appropriation scheme.  Interference is a temporary problem that occurs during pumping but that does not lower the water level of the aquifer. of Water Resources: Collier applied for surfacewater that was opposed by ranchers. It is not necessarily that the problem was ignored up to this point. General Note on Groundwater / Surfacewater Interference in Situations Like This  The law on groundwater— surfacewater interaction is not settled. State Engineer refused to grant permit because it would interfere with Rio Grande River and its appropriators. it will only constitute a taking if infringing upon the right causes a total wipeout of ALL value. he could do that even though it would reduce the flow of the creek.  No way to systematically model the movement of water in aquifers in relation to streamflow (until high-speed computers came around). to the detriment of society.  Here there were two separate statutes.  Ie.  Prior Appropriation GW/SW Conflict  In a prior appropriation jurisdiction. Reynolds (New Mexico—1962): City applied for groundwater permit. thus lowering the cone of depression. the permit will not be granted because it would impair existing rights to the surface water user.  Collier v.  Little willingness on part of the government to spend money and get the information.  Government’s Defenses to Taking Claim:  If regulation merely encompasses the background principles of common law. Arizona Dept.  Externality Problem  BUT it can result in lower the cone of depression so that smaller wells can no longer reach water.  Prather v. Note on Conjunctive Use  This is the name applied to several different practices and processes employed to coordinate the use of ground and surface waters in order to get the maximum economic benefit from both resources. it is not always followed.  Without some kind of limit. the conflicts are almost always resolved in favor of surfacewater. people will pump more for themselves. but this is also in the Rio Grande River water basin. although that may be part of it.      Groundwater is the source of almost 40% of the streamflow in the entire country. Eisenmann (Nebraska—1978): Plaintiffs are angry with Ds because Ds put in a large well that dried up P’s well. even if the underground waters are not appropriated. Well Interference Problems  Well Interference is the lower of water levels of smaller wells near higher capacity well during and shortly after the period in which the high capacity well is being pumped. . Ps are within the cone of depression created by D’s well.  Ideally the externalities would be internalized in terms of both costs and benefits. In correlative rights.Water Law Outline Professor Noah Hall – Winter 2012 Page 33 of 51  Because water in these systems is not a property but a right. City of Albuquerque v. Court ruled for ranchers but said if Collier wanted to pump the same amount from beneath the land. it will be a defense to a takings claim. and a user cannot get a permit where it would impair existing water rights.  The surfacewater appropriators argued that if someone could appropriate groundwater in this basin. so the State held that if underground waters in question cannot be taken without impairment to the rights of river appropriators.  The State engineer decided that the best scheme is to combine the lines and make the groundwater appropriators get in line with the surfacewater appropriators.  Riparian GW/SW Conflict  In a riparian jurisdiction.  Little or no scientific information available about the connections between groundwater and surfacewater. so the government may ask/do it as well. a neighbor may ask for an area to be apportioned amongst users when there is no surplus.  AZ does prior appropriation for surfacewater and American Reasonable Use for groundwater. the conflicts are almost always going to be resolved in favor of the senior appropriator.  No large-scale groundwater extraction until the middle of the 20th Century. Really it is due to the fact that groundwater can be very hard to analyze and understand. BUT while this is sensible. it would be like skipping all of them in line. The river is completely appropriated.

Inc.  I. it’s about as much as a small village would use. the FDA requires that the water be connected to a spring in some way.  In addition to leasing the Bollmans’ land to pump water from the groundwater below.  Trial Court Ruling  The trial court concludes that Nestle’s unreasonable use warranted a full injunction.  Spring water is marketed differently than purified water.  Nestle received a permit from the State Safe Drinking Water Act  All the state cares about in giving this permit is that the water being pumped for drinking purposes is safe and not going to make anyone sick. They just leased it in order begin pumping from the artesian well below.  The trial court agreed with this finding.  Plaintiffs  Plaintiffs are a group of riparians that banded together to form a nonprofit to litigate the case. Drug & Cosmetic Act sets requirements for what can be marketed as spring water.  It does not have anything to do with reasonable use or amount pumped.  They ask the court for an injunction.e.  NOTE: The court does not want to resort to resolving a property dispute with an injunction when it could just use economic liability and everyone will still get water. Nestle also began taking steps to construct a bottling plant nearby. Nestle can capture it and call it spring water.  The reason that Nestle picked this location is because the Federal Food. rather than purified water.  Hybrid Rule (Restatement 858 combined with Natural Flow Doctrine)  The trial court essentially said that surface water rights trump groundwater rights and that any interference with Plaintiff’s right to quality or flow was a violation.  Plaintiffs are riparians to Osprey Lake.  So because it is connected to a spring. a man-made lake that is formed by damming the Dead Stream.Water Law Outline Professor Noah Hall – Winter 2012 Page 34 of 51  Nebraska applies the correlative rights rule and upholds the district court ruling that…  All of the rights of the parties could be protected and ensured if Ps simply lowered their wells.  This is not a totally exorbitant amount of water. Michigan Citizens for Water Conservation v.  Nestle’s Use  Plaintiff’s experts testified that Nestle’s pumping resulted in a 24% reduction in flow. which included a 2 inch reduction in stream level and a 4 inch reduction in stream width. NOTE: Rule in Michigan for Groundwater  Something between Correlative Rights and Restatement 858 Reasonable Use. but not as strictly disfavored as in pure correlative rights. an off-tract use will not automatically lose against an on-tract use. Is 24% a new standard for what is unreasonable in Michigan?  Furthermore.  The groundwater under the Bollmans’ land eventually runs into a spring. the court found that when Nestle pumped 400 GPM. if it isn’t captured first.  Reasonable Use/Sharing/Correlative Rights. but does not bottle it at Sanctuary Springs.  Plaintiff’s claimed use is for aesthetics and recreation. and the court ordered Nestle to terminate all withdrawals from Sanctuary Springs.  Facts  Nestle drills 4 wells and wants to pump 400 GPM.  SO Plaintiffs entitled to damages equal to necessary costs of providing an alternative method of water supply (cost of lowering plaintiffs’ wells).  Nestle Off-Tract Use  Nestle pumps the water at Sanctuary Springs.  They pipe the water off-tract to a manufacturing plant about 12 Miles away. (Michigan of Appeals—2005)  Background  Nestle as Defendant  Nestle leased property from the Bollmans that was over an aquifer full of groundwater.  Claims  Plaintiff claims that Nestle’s use is harming that and that it is unreasonable.  Nestle did not buy the property outright. Nestle. and it is harder to meet the requirements for spring water. . 375 GPM came directly from the stream.  NOTE: Trial court said that 24% was unreasonable. Off-Tract use disfavored.  Bottling companies have found that consumers prefer to buy a product called spring water.  To be classified as spring water.

 Initial Knock-Out Comparison  If one of these factors heavily weights in favor of one party.  The law will only protect a use that is itself reasonable  The law will not redress ever harm.  1.  Appeal Court’s Finding  The appeals court upheld the trial court’s finding that Nestle’s pumping of 400 GPM was unreasonable. no matter how small.  5. and Nestle could find other places from which to take water and call it spring water. that means a Reasonable Use Balancing Test because Michigan is a riparian reasonable use state.  The trial court must find some way to adjudicate the surfacewater/groundwater dispute that is consistent with Michigan Water Law. Takeaway From Case  The court basically used Hall’s cheat sheet to perform reasonable use balancing test. then it could resolve the conflict outright. Necessity of the Amount and Manner of Use  Nestle needs lots of water  Plaintiffs need some water  6.  BUT they did not accept the trial court’s hybrid rule or it’s finding according to that rule that any groundwater pumping by Nestle that interfered with Plaintiffs’ Riparian rights was per se unreasonable. but Nestle is off-tract. Determine whether uses are on-tract or off-tract. as in Albuquerque v. the court must do a reasonable use balancing test. Reynolds.  3. Any other Factor that may bear on reasonableness Court’s Conclusion  The case is remanded to determine what use would be reasonable. .  BUT off-tract use is not necessarily barred per se.Water Law Outline Professor Noah Hall – Winter 2012 Page 35 of 51      NOTE: This was a hybrid rule of the trial court’s own creation.  The law seeks to ensure fair participation in the use of the water for the greatest number of users.  Plaintiffs are on-tract. but it will be heavily disfavored.  1.  On-tract use gets preferential treatment.  SO here. Benefits of the Use  Plaintiffs’ use of aesthetics and recreation benefits the community  BUT Nestle’s creation of jobs and boosting of the economy also does a great deal of good. BUT the court did hold that Nestle’s taking 400 GPM resulting in a 24% reduction in stream flow was unreasonable. Determine whether both parties are riparians. The Analysis Step by Step  In order to analyze a GW/SW conflict. Appeal  Nestle appeals the trial court’s ruling. Extent and Amount of Harm  Nestle does do quite a bit of harm  4.  Appellate Court’s Method for Resolution  The appellate court said that when surface water and groundwater rights conflict. the parties chose not to litigate again and instead settled that 250 GPM was reasonable with some variance depending on the season.  When the case was remanded. Sustainability of Use to the Location  Plaintiffs use of aesthetics and recreation are compatible  Nestle’s use is not necessarily compatible. they should be analyzed side by side under the prevailing water law doctrine. Ensure that the uses of the parties are one of the reasonable uses  They are  3.  Here.  NOTE: If this were prior appropriation.  Reasonable Use Weighing of the Factors  Since none of the first four comparisons weighed conclusively in favor of one party.  The Trial court failed to do this because they disregarded the reasonable use balancing test Michigan has adopted for its Riparian System and instead just decided that surfacewater trumps groundwater. it’s helpful to know that a 24% reduction is considered unreasonable. but it will redress unreasonable harms.  4. It takes a lot of water from the stream. the court would have allocated water to the uses according to the seniority of the use’s place in line. both uses are artificial. Purpose of use  Both parties’ uses are artificial  Nestle for bottling  Plaintiffs for recreation  2. They basically said that Riparians have a right to reasonable use uninterrupted in quantity or quality and that a surfacewater use always trumped a groundwater use.  SO when all else is equal. the court will first ask if any of the initial knock out factors of the reasonable test to see if either use is clearly unreasonable under the circumstances.  They are  2. Natural versus Artificial Uses  Preference natural (domestic uses) over artificial uses.

Water Law Outline Professor Noah Hall – Winter 2012 Page 36 of 51 .

Federal Navigation Servitude  Establishes Federal Navigation Servitude. . it must first be shown that it is in fact navigable. Subject to Ebb and Flow of the Tide (Tidal for Title)  If a body of water is navigable in fact. Mississippi U.  The Test:  1.S. even if it is fully confined within the state. it may still pass the Federal Navigability Test if it is subject to the ebb and flow of the tide. U. As long as a commercial vessel can operate on it. which trumps any private rights vested under State Law (Riparian Rights.  But in order to establish that a waterway was held in trust.S. Michigan DNR Public Trust Protects 3 Rights  1.can do it without compensating or justifying if purpose is to further navigation State navigability for public access Restricts otherwise compensable riparian rights to protect federal interest in navigation Varies by state -usually public access to waterway.S.  2.Water Law Outline Professor Noah Hall – Winter 2012 Page 37 of 51 PUBLIC RIGHTS TO WATER: NAVIGABILITY AND THE PUBLIC TRUST Navigability Right Federal navigability for title Legal Significance State ownership of the beds underlying the water Standard/Test At the time of statehood. Right of Navigation  Historically. Kaiser Aetna v.  2. v. Bottom Lands for State  State owns bottom lands below the water.  NOTE: The authority for the Federal Navigation Servitude is founded in the Commerce Clause. other states use recreational boating Bott v. AND because of the Commerce Clause. then 2 Legal Consequences  1. waters subject to ebb and flow of the tide or used (or could have been used) as an avenue of commerce U. Willow Run power co.: Phllips Petroleum Co. this test is passed.  State Navigability Test  Each state has adopted its own test for navigability in addition to the Federal Navigability Test. Etc…) and empowers the government to hold the surface water open for navigation.Michigan uses floating log test. only naturally navigable waters Relevant Cases Utah v. Federal navigation servitude*servitude encumbering riparian or other property rights under state law and operates to give fed govt trump card any time it wants to do anything in water way that would affect or impair private rights .S. Public is allowed access to the body of water for recreation. U. If a body of water passes the State Navigability Test  1.  Federal Navigability Test  In order to meet the Federal Navigability Test. the government has an established right to hold them in trust for the benefit of the people.  If Test Met. a body of water must satisfy at least one of 2 requirements. navigable waterways were absolutely necessary for trade and commerce. and each has different legal significance. BUT Riparians still own bottomlands. v. and no one’s rights are extinguished.  There are different tests for showing navigability. Navigable In Fact OR  A body of water is navigable in fact when it is used or susceptible to being used in its ordinary condition as highways for commerce over which trade may be conducted in the customary modes of trade and travel on water. BUT this does not require that a body of water actually span between states. Corps of Engineers determination (has regulated proactively). often for recreation and/or fishing Varies by state . Prior Appropriation. There is overlay between the private party’s right to water and bottomlands and the public’s interest in access and recreation.  2.

Boundaries. Recreational Access  Only in the past 100 years or so have the courts recognized a recreational right.  If he owns only land on one side. the landowner’s land gets bigger. Navigable Water or Tidality-for-Title Waters  The state owns the land below the ordinary high water mark both on tidal and inland navigable waters. Equal Footing Doctrine  When a state enters the union. it may still change because of runoff. Illinois (1982): State holds title to the lands under the navigable waters.  Common Law Rule  If the shoreline changes slowly or imperceptibly. Environmental Protection  Only in the past 30 years or so have the courts recognized public rights to environmental quality and ecological health. United States (SC—1971): Dispute between the United States and Utah as to the shore-lands around the Great Salt Lake.  When used in clear pursuit of public navigation. a state cannot divest itself of title without a strong showing that they are doing so in a way that is connected to the public interest. the public’s right to the water is established.  Basically. then the boundary line moves. took title to the waters that were influenced by the tide running in the Gulf of Mexico. and Shifting Shorelines  Federally Navigable or Tidal for Title Waters  Note that even though the shoreline of an inland water body is not subject to the ebb and flow of the tide.  BUT If a body of water is covered by one. such as dredging and construction of dams and levees does not go to the property owner. which gives the Federal government the navigation servitude to ensure that waterways are open for commerce.  But the state’s title to these waters is different from title to regular land.  One of these rights is the ownership of the bottomlands of navigable waterways. BUT the waters were not navigable in fact.  2. and have liberty of fishing and other activities free from obstruction or interference by private parties. it will not prohibit it from being covered by the other as well. Therefore the state holds title to the bottom land as trustee.  California Rule  In a dispute between the landowner and the state: land along the tidelands and navigable rivers that accretes by artificial means. BUT they are influenced by the ebb and flow of the tide. it will enter with the same rights as the original 13 states. but the Army corp will restore them. Phillips Petroleum Co. precipitation. As long as they are navigable for the purposes of commerce in general. Utah v.  3.  It is a title held in trust for the people of the State that they may enjoy the navigation of the waters. Utah claims that the waters were navigable at the time of statehood.  NOTE: It does not matter that the Great Salt Lake is not navigable for the purposes of interstate commerce.  So if the shore gets bigger. he owns all the bed. but it is still unclear if they can divest themselves permanently. and other factors. carry on commerce over them. he owns half the bed. Utah owns the land below the waterways.  THUS a State has title for those waters and the lands beneath them that were navigable at the time of statehood.  Lakes and Ponds  Pie division. and the Federal Navigation Servitude is also applied. . the exercise of the navigation servitude is uncontroversial.  Non-Navigable or Tidal for Title Waters  Rivers and Streams  The beds of a stream are owned by the riparians who own the land surrounding the stream. A hurricane may change shorelines. Mississippi (SC—1988): The issues is whether Mississippi.  If a riparian owns land on either side of the river. when it entered the union in 1817.Water Law Outline Professor Noah Hall – Winter 2012 Page 38 of 51  Generally.      The Federal Government holds the navigable waters and the lands beneath them in trust for future states. v.  Because these waters were navigable at the time of statehood.  These waters did not meet the test for navigable in fact. it brings up the question of where the dividing line is between the bottom lands that the state has title to and the landowner’s shore.  Exception  Landowner cannot create his own accretion.  When the shoreline can change. Bed Ownership.  SO the state is very limited in how it can dispose of this title. the State Navigability Test covers a lot more bodies of water than the Federal Navigability Test. and the Federal Government shall vest title to those waters to the states when they are admitted to the union. The Federal Navigation Servitude  The Federal Government has a servitude over navigable waters that restricts otherwise compensable riparian rights. Illinois Central Railroad Co v.

thus Power Co. United States (SC—1979): At the outset.  Typical disputes arise in the following instances:  To promote navigation on a navigable river.S. which is a navigable waterway of the U. but it was separated by a barrier beach. . for subdivision development. but how is its value measured? By the high value because proximity to the navigable water will support hydroelectric generation activities or by the much lower value if proximity to water is excluded?  United States v. condemns riparian land above the high water mark that is owned by a power company.  There is no dispute as to compensation for the land because Federal Navigation Servitude only extends to the high water mark. thus it is not navigable for the purposes of the servitude.don't need to know anything else . owned dam on Willow River (non-navigable tributary of navigable St. does something to the water body that furthers navigation (or public purpose) . Croix river as a power head. raises the level of the St. it is protected against a takings claim even for something that affected a riparian’s rights upstream and in a non-navigable tributary. and water from the bay of the ocean entered the pond through sluice gates during high tide and during low tide the flow reversed toward the ocean. The pond was turned into a marina.000 acres from a private owner. Croix River. which would ordinarily be compensable as takings of property. the test for state law navigability is far more broad than the Federal Navigability Test. the pond was not navigable. damaging a riparian on that tributary. the only question is whether they are going to do that under their police power in which case they have to pay a takings claim or under the navigation servitude.  There is no question that the govt. the govt.  Power Co sues claiming a taking for land AND for a state created property right in the flow of the St. the govt.  Not Navigable in Fact  The pond was incapable of being used in interstate commerce and could not float a boat at the time of statehood.  As part of a navigation project. which included the Kuapa Pond.doesn't matter if riparian right would otherwise be protected against takings..Water Law Outline Professor Noah Hall – Winter 2012 Page 39 of 51  Not a Taking  The Federal Navigation Servitude permits the Federal Government to displace or destroy state-recognized property rights. is protecting the interest of navigation. in which case they would not have to pay a takings.  SO Congress could regulate the marina under the Commerce Clause to further navigation or commerce and grant public access. Public Rights for Recreational Access and Use FEDERAL COMMERCE CLAUSE VERSUS NAVIGABILITY FOR TITLE  Kaiser Aetna v. can regulate and develop this.  AND the Federal navigability servitude to federally navigable waters ALSO can trump the riparian rights on non-navigable tributaries  So because Federal govt.  If federally navigable water body and federal govt. and an attempt to create public access to the pond goes beyond ordinary Commerce Clause regulation and would amount to a taking. Croix river to 3 feet above the high water mark. Admittedly compensation is due for the land. generates less power. Croix River) which ran parallel and from which it was separated by a narrow neck of land.  Federal govt. Willow River Power Co (SC—1945): Power Co. has navigational servitude over all federally navigable waters. Then Kaiser leased 6. The pond was contiguous to the bay. US govt. BUT it would have to compensate Kaiser.  The marina is not subject to the Federal Navigation Servitude for the purposes of improvement for navigation. permanently maintains the river’s water level at the high water mark with the effect that the level of a non-navigable tributary is also permanently raised above its natural level. STATE LAW NAVIGABILITY  Single most important thing to keep in mind is that in almost every state.  BUT there is a dispute as to whether the Power Co has a compensable property right to the flow of the St.

 DISSENT argues that the remand is asking the trial court to have a trial as to whether or not a riparian is vested with the right to limit the number of people who can enjoy state water. and it will infringe upon the riparians’ existing right to boat because the lake supply cannot support that many more boats. but it has expanded to recognize recreation and environmental protection as well.  The law of public trust is founded more in ideology than in actual legal concepts. Whether it is navigable will decide whether individual on Big Chub Lake can traverse the outlet to Linton Lake. which is much more restrictive.  There are no public rights at issue here. Public. For the purposes of recreational boating test. etc…?  The smaller the lake. what does determine navigability for purposes of public access in Michigan?  Recreational Boating Test Rejected  Under this test. similar to the Federal Navigation Servitude.Water Law Outline Professor Noah Hall – Winter 2012 Page 40 of 51  Thus there are many water bodies that are navigable under state law that are not navigable under Federal Navigation Servitude. a canoe can be paddled upstream and through very shallow water and the water body will pass.  Bott v. the log must be able to travel down the water body by itself. and artificial waterways do not get riparian rights. lake-front hotels. This is purely a dispute between riparians. There is a factual issue as to whether the outlet is actually navigable.  Navigability test should turn on commerce. BUT they will be treated as if receiving an easement to access the Lake. which is what they actually want here.  Should recreational access determine navigability? If not.  Thompson v. this would constitute a large scale taking. but there is an outlet to Big Chub Lake.  This case should really be in the competing riparians section of the textbook. a body of water is navigable if it can be used to float a canoe down. and this is an issue the court probably does not want to try. THE PUBLIC TRUST DOCTRINE  The Public Trust  The public trust refers to the state holding property in trust for the benefit of its citizens. and recreational boating is not commerce. The developer wants to build channels to the back lots so that water will flow back to them. so it is not open for public access. the bigger the problem. Private. Michigan Department of Natural Resources (Michigan—1982): Plaintiff owns 600 acres which includes a lake. so it is better to leave this to the legislature if they want to change it. Enz (Michigan—1967): Developer purchases a large piece of land.  The doctrine was created to protect a person’s right to participate in commerce through navigation.  Change in the law here would disrupt norms and property expectations. the dead end lake rule says that only littoral owners of small dead end lakes have the right to use the lake. .  Court holds that just because the entire parcel of land is currently riparian does not mean that all of the lots would retain their riparian status after being subdivided. so there is no need to do a reasonableness test. BUT for log floating test.  Log Flotation Test  The court instead adopts the log flotation test.  Giving the back lots the easement requires a remand to the lower court if the riparians want to challenge it.  So the question is whether this development will be able to go forward or will be stopped in light of the fact that it will create a right of access for the back lot owners.  Dead End Rule Exception  Even if there is navigable access (by log floating test). There is no inlet.  BUT as a practical matter.  Back lots in the subdivision will not carry riparian rights because they front on canals.  The inlet fails the log floating test. There are several littoral lots with direct access to Gun Lake and several back lots. the back lots would get access to Gun Lake.  BUT in the end.  Under recreational boating.  This would create an artificial waterway. and Common Rights for Recreational Use COMMON RIGHTS: RIPARIAN ACCESS TO WATERS  The question here is how will the law define or redefine the conventional definition of riparian given artificial lakes. there was no need for the remand trial because the Riparian Plaintiffs never alleged any harm in the first place.  The court rejects this test for several reasons.  Northwest Ordinance was the first major document in the United States to really recognize and solidify what the public trust doctrine.  NOTE: The riparians should have argued that giving the developed owners rights will allow them to boat. which are artificial bodies. yachtclubs.

Goeckel (Michigan—2005): Joan Glass is a 70 year-old woman who likes to walk along the shore of Lake Huron in front of Goeckel’s house. and they begin to put sticks and logs on the beach in order to block Glass’s path.  Beneficiary is not solely the current public but the future public as well. below which the presence and action of the water is so common or recurrent that the character of the land is marked distinctly from the upland and is apparent in the soil itself or the configuration of the surface of the soil and vegetation.  Has not been that disruptive in Eastern States because Riparian system requires a reasonable balancing test anyway. it has not gained much traction in Western States.  Glass v.  Trustee is very limited in how it can divest itself (sell) the resource.  High Water Mark and Low Water Mark  This part of the public trust originates with the law of the sea. In other words. Glass says it extends up to the high water mark. Just Privatum are those lands and rights held by individuals.  SO Goeckel’s own the land subject to state’s title to the land as trustee.  Important Principles of the Public Trust:  State as Trustee  The public trust doctrine puts the state in the role of trustee of a resource as opposed to ownership of a resource. and (2) whether the public trust encompasses walking on the beach as one of the public rights protected by the public trust and thus by the state and trustee.  But where does the private land end and the state’s claim to the submerged land begin?  Goeckel claims that the land submerged below the water is subject to the public trust but that the land above the water is not.  Glass claims that the public trust extends further than just the water’s edge.  It is not just about protecting the resource but about protecting the public’s right to use the resource in a certain way.  SO there is no strict division between land below high water mark and water’s edge in terms of ownership.  Because the state usually cannot divest itself of the public trust or eliminate its title.  In Michigan in the context of the Great Lakes.  This case shows that the public right that the public trust protects is a combination of USE and RESOURCE.  SO the question is (1) at what point do the bottomlands stop and the private lands begin.Water Law Outline Professor Noah Hall – Winter 2012 Page 41 of 51  But the difference is that the Federal Navigation Servitude derives its power from Commerce Clause. the line between upland and bottomland that persists through successive changes in water levels. Goeckel has a little more land.  Outside of California.  Specifically.  Jus Publicum and Just Privatum  Jus Publicum are the rights vested in the sovereign to be exercised in service of the public trust.  The real role of the state in relationship to the resource is to ensure that the resources are used in the best interest of the public.  State’s Role  The state’s role is not about protecting. Goeckels claim that this is a trespass. this does mean ensuring the land is open for public access  BUT at other times. and it’s not about maintaining the resource and keeping it open for public access.  Court also finds that public trust doctrine includes the right to walk along the beach up to the high water mark. and that he owns the beach up to the water as private property.  Goeckel is making this claim because his deed specifically says that his property extends up to the water. he has a little less land. but it has gained footing in Eastern States. it can only use them insofar as it does not interfere with public’s ability to use it. the bottomlands belong to the state.  SO the public trust doctrine does not always equate with environmental protection and conservation.  This means that when the water is lower. the high water mark is the highest area that the water ordinarily reaches with the natural fluctuations of the lake. this means leasing land permits to allow private companies to drill on the land.  The Goeckel’s are private landowners with title to their property. and when it is higher.  At times. but the Public Trust on the whole is less clearly derived.  The Supreme Court decides that the land does extend all the way up to the high water mark.  Goeckel’s own the land below the high water mark up to the water’s edge.  The state has the power to determine the high water mark. BUT because Lake Huron is navigable. every littoral property on the lake is subject to the public rights attached to the lake. BUT the state holds that very same land in public trust. .  Trustee cannot use the public trust resources freely. Goeckel’s own SUBJECT TO the public trust. BUT it is not necessarily owned by the state.

diversions are from its non-navigable tributaries that would eventually flow into Mono Lake.  Thus the clash with private rights is becoming inevitable.  Powers of the State  So the state. The federal court sent certified question to state court to clarify state law on how public trust doctrine and appropriation system interplay with one another.  National Audubon Society. In exercising its sovereign power to allocate water resources in the public interest. Mono Lake used to have islands where birds nested.  BUT why would walking along the beach fit into those kinds of rights. It has ONLY been done in California because California still recognizes some riparian rights. a person MUST walk along the lakeshore. The water that would have gone to Mono Lake is instead going to L.  Question is whether the non-navigable streams from which Power Company is diverting water (that eventually would feed into lake) are subject to the public trust doctrine.’s water needs.A. AND it is not black letter law. was that permit subject to public trust?  If it was subject to public trust and there is a dispute does the private water user win or does the public trust win?  The scope of the Public Trust had already expanded from coastal waters to inland waters in 1983 (definition of navigability was broadened). can revoke previously granted rights or enforce the trust against lands long thought to be free of the trust. THE NEW PUBLIC RIGHTS AND THE OLD PRIVATE RIGHTS: ENVIRONMENTAL PROTECTION  Sax on Public Trust Rights  It is NOT black letter law.  This has very little support in modern case law. sued the Power Company in federal court. as administer of the public trust.  State agencies must consider the interests to the Public Trust when considering diversions and seek to minimize harm to those interests.  Fundamental question is when the agency gave permit to the Power Company. and the rights protected under it had expanded to possible environmental issues. are not.Water Law Outline Professor Noah Hall – Winter 2012 Page 42 of 51  Before this case.  The Nestle case made clear how to adjudicate an issue.  Finally.  NOTE  This case leaves a lot of questions unanswered as to what types of activities will be allowed under public trust doctrine. Then LA Power Company diverted 4 to 5 streams that feed the lake. the .  Rather the GLSA established the scope of regulatory authority that the legislature exercises pursuant to the Public trust doctrine.  Does not serve to justify trespass on private property. but Sax argues that public trust rights are superior to riparian rights.  Court holds that the Public Trust protects navigable waters from harm caused by diversion of nonnavigable tributaries.  Public Trust and Incompatible Uses  The problem of incompatible instream and offstream usese is presented in the case below.  Power Company’s use of water dropped the lake level significantly.  Black Letter Law (Hall)  Mono Lake is navigable. and hunting were protected as public rights.  Once the state has approved an appropriation.  Court reasoned/assumed that walking along the lakeshore was protected because the in order to hunt or fish or boat. SO the streams and tributaries are subject to the public trust as well. BUT this case only adjudicates the dispute when the issue is high water mark or walking on beach.  It protects only limited public rights. where for the first time the public trust doctrine is posed against demands of appropriators who want to remove water from the tributaries that feed the lake in order to meet municipal water supply needs.  Note on Great Lakes Submerged Land Act  The court in Glass did not adopt the GLSA standard because the GLSA does not purport to establish the boundaries of the public trust.  This case has not been followed in other western states.  The Mono Lake Case (California): Mono Lake is a giant lake in central California that is basically abandoned and does not serve any water needs. the public trust doctrine does not permit every use of trust lands and waters. the Public Trust imposes a duty of continuing supervision over the appropriated water. the tributaries that feed into it. fishing. which the Power Company is diverting. but they can’t use it anymore because the water level has dropped so much that the islands are now connected to the mainland and coyotes can eat the birds. a wildlife foundation. only navigation.  Basically saying that public rights to water are superior to private rights to water. does not create unlimited public right to access.  BUT while Mono Lake is a navigable water.

so the question is whether they can hold on to the water for future use.  This is a huge expansion of public trust. they will not necessarily be deferred to. when sugar cultivation was terminated.  The water was originally appropriated for agricultural use pertaining to sugar cane.  The court holds that the state has power to regulate this water under the Public Trust. even more than in Mono Lake Case because it does not matter whether the water is navigable or not. but it is no longer needed for that. according to any appropriate standards provided by law.  In re Water Use Permit Applications for the Waiahole Ditch (Hawaii): From 1915 to 1995. much of the water in the area on the windward side of the island that contained freshwater was diverted to the leeward side of the island to support sugar plantations. SO any private interest gets a higher level or scrutiny.  The uses consistent with the public trust are the default position.Water Law Outline Professor Noah Hall – Winter 2012 Page 43 of 51 state is not confined by past allocation decisions which may be incorrect in light of current knowledge or inconsistent with current needs. . Hawaii and Vermont.  Only 2 other states have followed the California example. The leeward side now wants to retain the water in order to keep that side cultivated for future use. It can be subject to the public trust.  State will weight public and private uses on a case by case basis.  This also means that when an Agency gives a permit to a private use.  NOTE  Most states have expressly REJECTED the California approach of extending the public trust doctrine to encompass non-navigable waters and environmental protection.

the court appoints a special master to handle these issues and affirm his findings.Water Law Outline Professor Noah Hall – Winter 2012 Page 44 of 51 INTERSTATE WATER MANAGEMENT THROUGH CONGRESSIONAL APPORTIONMENT AND INTERSTATE COMPACTS The Federal Methods of Dividing Up Water  4 Ways the Federal System Can Divide Water Between States     1. BUT approval may come before or after the signing of the compact.  If 2 States are arguing over a resource. . BUT this rarely happens. It does not want to create law in this area. usually a river. it is like a riparian dispute on a macro scale.  Congress could also split the water proportionally by the size of each landmass. The supremacy clause binds the states to Congress’ actions. The supremacy clause binds the states to Congress’ actions.  Requires the House and Senate to agree.  Very often the court makes clear that it does not think that bringing these cases to the SC is the best idea.  Requires the House and Senate to agree. Court will encourage states to enter into compacts.  As a practical matter. so Commerce Clause can cover it.  Congress could just pass a law that says each state gets 50% of the water. Equitable Apportionment  Congressional Apportionment  Congress derives its power here from Article 1 § 8 of the Constitution—The Commerce Clause.  Interstate Compacts  The disputing states can agree to enter an agreement to split up the water. the court will usually just affirm the status quo.  Congress could also split the water proportionally by the size of each landmass.  The court tries its best to divide the water in the most fair and equitable way. Interstate Compacts 3.  Bottom line. the parties can also enter into treaties  Equitable Apportionment  The supreme court has original jurisdiction over interstate disputes.  Water is an interstate resource.  The SC hates these cases and will only take cases of serious magnitude. Treaties 4. Congress could pass a law that divides the water body.  Congressional approval required to the formation of any combination of states tending to increase power for the states or take power from the Federal Government. which makes it even more difficult and rare. it is like a riparian dispute on a macro scale. Congress’s Role: Apportionment and Interstate Compacts  Authority of Congress  Congress derives its power here from Article 1 § 8 of the Constitution—The Commerce Clause. which makes it even more difficult and rare.  It has only happened once or twice in the history of the country.  This is a problem because if the SC does not take the case.  Water is an interstate resource.  Bottom line.  Once ratified. Congressional Apportionment 2. BUT this rarely happens.  If 2 States are arguing over a resource. however. and it may be express or implied.  Interstate Compacts  The compact clause of the Constitution says that a state may make a compact with any other state BUT ONLY with the approval of Congress. it cannot be litigated in any lower court. the SC can step in and adjudicate.  The court will not generally announce any clear legal rules or doctrine. Congress could pass a law that divides the water body. so Commerce Clause can cover it.  It has only happened once or twice in the history of the country.  Usually. usually a river.  Congress could just pass a law that says each state gets 50% of the water.  Treaties  When the dispute is between countries rather than states. so when a dispute cannot be resolved between two states. despite the fact that the constitution provides for it.  Congressional approval is required for formation. these agreements have the force of Federal Law.  Dormant Commerce Clause can knock out agreements.  States power to enter into contract in Article 1 of Constitution.

the river reaches to the Gulf of California.  Representative from each of the four basin states.  Supreme Court’s Authority  SC has original jurisdiction over interstate disputes. but it provides a major water source for about 7 states.  Parties to the Compact all follow riparian law. Each has a vote.  One these compacts are ratified. Dissatisfied with the Court ordered solution. including California.  The Colorado River Compact:  Federally approved agreement between the states to divide the river between the upper and lower basins. they approved a compact in 1961 to manages the basin as a regional resource. the SC can step in and adjudicate. they have the full force of federal law.  Congress didn’t so much as allocate the water as it did provide money for the building of HUGE dam projects to establish infrastructure.  Colorado River: Good case to study for interstate apportionment because it provides a lot of law. The Supreme Court and Equitable Apportionment between two states.  Imposition on state sovereignty that the Delaware River Basin Commission would put on state sovereignty  Water central to Michigan economy. Michigan would never agree.  Would not work for Great Lakes because  It is a hands-on.  River has the most demand in the country. but it still gets water because of the compact. The administrative body controls every aspect of management.  The obvious way to achieve this is through a treaty.  The Delaware Basin Compact: Provides water for NYC and Philadelphia. saying it wasn’t ripe for decision. Commissioner appointed by the president. SC turned away Arizona’s suit for a while. so when a dispute cannot be resolved .  NYC.  Law of the River  Interstate Compacts  Federal Statute  Regulations  SC decisions  Contracts (private agreements)  State Prior appropriation law mixes in  All the appropriation law is relevant and important.  Lee Ferry is dividing mark at Utah/Arizona border.  BUT their power is limited by the 1954 Supreme Court decree. Mexico should get something. the largest user. and it may be express or implied.  Advantages to Interstate Comapact:  Takes On Character Of Federal Supremacy Clause  Avoids Scrutiny Under Dormant Commerce Clause  Establishes Commissions To Ensure Compliance  State Cannot Repudiate Except Under The Terms Of The Contract/Compact. intensive approach that is only really justified if there is scarcity or litigation between the states.  Treaties  Theoretically. Colorado River is not a huge river.  Mexico gets about 10% of the flow. Simple majority controls most issues. BUT it is probably secondary to the higher levels of law that govern the interstate management.  Arizona got what it wanted  BUT the decision also set aside some water for Federal Lands and Reserved Indian Rights.  The water is over-allocated and has been for a long time. and Colorado.  Supreme Court Decisions  Arizona brought suit arising out of a dispute between some of the Lower Basin states. so the water is divided between Upper and Lower Basin States. is not riparian. SC made an apportionment in 1931 and 1954. Increasing demand for the water led to conflicts.  Congressional Apportionment  Congress passed the Boulder Dam Act that authorized the building of some dams.  Upper Basin gets 45% and guarantees a flow of 45% to the Lower Basin states. Arizona.Water Law Outline Professor Noah Hall – Winter 2012 Page 45 of 51  Congress’ consent may come before or after the states sign the compact. The states tried to negotiate a compact but failed.  Specific distribution details for each state.  There was 90% of water left after treaty with Mexico.  Then in 1963 the SC adjudicated a decision.

which give them special recognition.  Colorado v.  Key Difference Between Prior Appropriation and Equitable Apportionment  When two states are disputing.  The court says that since both states follow prior appropriation.  There are several reasons the court will not use the prevailing law in this case.  BUT the deeper issue is that each state has Sovereignty. Harms. the junior user can make a case based on his needs and not simply by trying to upset the senior’s vested right by arguing that the senior is wasting water or being inefficient.  ALSO. The court cannot force them to give up authority over a natural resource just because the states’ laws for private individuals are the same.  Very often the court makes clear that it does not think that bringing these cases to the SC is the best idea. Colorado 
 is about to start using this water. which is at its core a practical method of dispute resolution that seek to do what the name suggests—allocate the resource in some fair and equitable way. New Mexico (I) (SC—1982): There is a water dispute between Colorado and New Mexico.Water Law Outline Professor Noah Hall – Winter 2012 Page 46 of 51  The Law Applied  SC applies Equitable Apportionment. despite the fact that the constitution provides for it. Issue is whether Colorado can get some of this 
 water that it hasn't been using. she says that Colorado must show that they have NO other way to get water.  Most Equitable Apportionment decrees contain a ―reopener‖ provision allowing the parties to apply for further relief as may be necessary or appropriate. they would just attack the junior user.  No Clear Legal Doctrine  The SC makes a fact specific inquiry and combines the status quo with general principles of property law.  In pure prior appropriation. . Both states are prior appropriation states. New Mexico (II) (SC—1984): Another dispute between Colorado and New Mexico.  The Factors the Court Uses:  Physical/Climactic Conditions  Consumptive Use of Water in Sections of the River  Character and Rate of Return Flows  Extent of Established Uses  Availability of Storage Water  Practical effect of Wasteful Uses on Downstream Areas  Damages to Upstream Areas as Compared to Benefits of Downstream Areas if a Limitation is Imposed on the Former. it cannot be litigated in any lower court. New Mexico is the downstream state and they are the ones using the water.  This is one of the few times the special master gets overturned.  Test for Whether Court Takes the Case  The court will only hear those disputes that are serious in magnitude and that require extraordinary power to control the conduct of one state suing another.  Why Not a Choice of Law Problem  It seems like since the states both have the same law.  Because it’s prior appropriation.  The court will not generally announce any clear legal rules or doctrine.  The Court dismisses the action altogether because Colorado failed to show by clear and convincing evidence that it needed the diversion it asked for.  In an interstate water dispute between two states that use prior appropriation system.  It is more like reasonable use than apportionment because the court does not want to apportion the rights to water.  This is a problem because if the SC does not take the case.  Colorado v. It does not want to create law in this area. priority is NOT the sole criterion. priority is a factor. and Efficiency. She wants to take prior appropriation very seriously.  BUT when States are parties there are sovereignty issues. assuming they had the same law.  BUT she still recognizes that equitable apportionment is not pure prior appropriation.  She takes into account Benefit. The court will also consider conservation measures available to both sides as well as the balance of harm and benefit that might result.  Usually.  The SC hates these cases and will only take cases of serious magnitude. the court appoints a special master to handle these issues and affirm his findings.  If it were between two private parties.  BUT it is NOT conclusive. in equitable apportionment. the court could just choose to use that law. Court will encourage states to enter into compacts.  O’Connor wrote this majority. the court could use the legal doctrine of the states. New Mexico would automatically win.

Private Interstate Water Litigation  When conflicts develop among users of interstate water bodies in different states. Morris in Wyoming. so there is not really a conflict in the two laws.  BUT NOT B/C of PRIOR APPROPRIATION.  He just happens to have a ranch that straddles state border and gets in trouble under Nebraska statute that prohibits moving water out of state without a permit. are also negatively prohibited from doing anything that interferes with interstate commerce. Rel.  Bean v. but once the resource is captured. Within this holding is the IMPLICIT understanding that the states. which meanders out of Montana and into Big Horn in Wyoming and then back into Montana. then the commerce clause’s implied purpose of delegating all commerce to Fed will prohibit this even without affirmative regulation from the Fed govt. Whether Nebraska Restriction on Interstate Transfer of Groundwater Imposes Impermissible Burden on Commerce  3. Douglas (SC—1982): Appellant jointly owned contiguous tracts of land in Chase County. the court can just apply prior appropriation.  So it’s like the commerce clause in it natural state is being invoked to impose regulation by the federal government. Dispute is over Sage Creek. Nebraska Ex. even if not explicitly against an existing regulation. It is more because if one party doesn’t use it. Sporhase did not get a permit under the Nebraska withdrawal statute  Challenge Presents 3 Questions  1.  Conventional wisdom is USE IT OR LOSE IT. Nebraska and Phillips County Colorado. and the other party needs it. altered. then the other party will get it.  He is not selling the water. the dormant commerce clause will knock it down.  Dormant Commerce Clause  SC has held that commerce clause.  BUT the outcome would be different if a state were to join in the suit.Water Law Outline Professor Noah Hall – Winter 2012 Page 47 of 51  The reason for this is that the court does not want to rely on one party’s trumped up claims against another.  He is not intending to divert the water out of state. then the dormant commerce clause will hold it impermissible.  For example. BUT if the States do something that interferes with Fed’s power to regulate commerce. ordinary litigation may resolve the dispute.  The more difficult question is whether the lake that contains the water is an article of commerce.  Because the dispute is between two individual subject to law and not between states with some higher claim to right.  Nebraska statute restricted withdrawal of groundwater from any well in Nebraska intended for use in an adjoining state. They are both prior appropriators but in different states.  The SC pretty clearly says that the way it is naturally (the way God left it) is a natural resource.  BUT the government can still affirmatively give a state power to pass a regulation that would otherwise interfere with commerce.  When a PRIVATE interstate water dispute arises between individuals whose states apply different water law. but he is shipping the water withdrawn to Colorado. Dormant Commerce Clause  Commerce Clause and Water  Water is an article of commerce AND the fact that the state owns the water does not prevent it from being an article of commerce. gives Congress and Fed the power to regulate the states.  SO if a state passes some regulation that interferes with Fed’s regulation of commerce. Morris (SC—1911): Bean in Montana.  Sporhase has wells on his land in Nebraska for groundwater pumping. . Whether Congress has Granted to the State Permission to Engage in Groundwater Regulation that Would Otherwise be Impermissible. even though not explicit in constitution.  It would rather see evidence of a party’s own need than here one party accuse another with mostly speculation.  Sporhase v. Whether Groundwater is an Article of Commerce  2.  Choice of Law  The law in both states is prior appropriation. then it can affirmatively pass some legislation giving California the authority and exempting it from Dormant Commerce Clause. and the pertinent state governments do not have an interest or are not willing to negotiate a compact or seek an equitable apportionment. if California passes some super strict regulation about air pollution that inhibits traffic on interstate.  If Congress wants to allow California to pass this regulation. then the Federal Court is going to apply the water law doctrine from whatever state the court is in and apply it equally to both parties. in addition to being affirmatively regulated under the commerce clause. or extracted it becomes an article or good subject to our commerce laws.

 Nebraska Supreme Court  The Nebraska Supreme Court said that water is not an article of commerce because it is a special thing that is necessary for life. New Mexico is worried the water will become too salienated and passes a ban on sharing water resources. Texas takes water from an aquifer it shares with New Mexico.  BUT Reciprocity provision is facially discriminatory because it prohibits states based on whether or not they share with Nebraska. . they just could not export it. The ban is struck down.  The El Paso Litigation: El Paso. Encouraged the opposite of conservation  Court rejects this argument because at the time of litigation it was unclear how New Mexico would conserve the water  2.  The ban on export of water is part of a comprehensive regulatory system in Nebraska  The court says this is OK.  If Nebraska had set up some kind of regulation that restricted based on areas where water was short and the result happened to be that water could not go to Colorado.  The state is allowed to conserve water. Reciprocity requirement has NO connection to the public interest. New Mexico then amends the statute to say that exports of water cannot be contrary to goal of conservation of water in the state and cannot be detrimental to public welfare. Violates the commerce clause because conservation principles were applied to all out of state uses but not all in state uses.  Texas and New Mexico eventually reached a settlement.  This is a weak argument because the water is being used for agriculture. which has no connection to legitimate local interest.  The public welfare portion of the statute that limits use in times of extreme need MAY be okay in time of severe shortage. Is intrinsically discriminatory against non-citizens.  NOTE: This was struck down because of Dormant Commerce Clause coupled with the fact that it was a state exercise of power over interstate commerce. protecting diminishing resources of groundwater because they are running out.  Not discriminating against people in other state because they were allowed use of groundwater if the came to Nebraska.  3. nonetheless.  Test for State Regulation of Articles of Commerce  Legitimate Local Public Interest and Only Incidental Affect on Commerce.  BUT because the law is facially discriminatory against other states if they do not meet the “Reciprocity” requirement.  Why Nebraska Failed  Facially discriminatory AND not narrowly tailored to serve conservation need.  Conservation.Water Law Outline Professor Noah Hall – Winter 2012 Page 48 of 51  The Case Background  Reciprocity Requirement  The Nebraska statute says that a person can only get a permit to move water out of state if the state to which you are taking the water also grants Nebraska a right to use water from the other state.  Congress can regulate it as an article of commerce because it is valued and used mostly for agricultural irrigation.  States can regulate commerce if there is a legitimate local public interest and it does not unduly burden interstate commerce. it will be subject to strict scrutiny. there are restrictions on the state’s ability to limit export or trade. it will almost always be struck down.  Notes from Sporhase:  Black Letter  Groundwater is an article of commerce. it simply demands that other states share in order to be shared with. this would probably not be struck down.  When a statute is facially discriminatory.  Texas argues that the law:  1. It is facially discriminatory and not narrowly tailored enough.  THIS is where the court strikes down New Mexico’s legislation.  Supreme Court’s Holding:  Groundwater is an article of commerce. limit use within state.  Court says that these are circumstances where states can protect their water from export. Nebraska Supreme Court says that it can ban and/or limit water export out of the state.  Because it is an article of commerce. there is just a test to see if the regulation is permissible.  BUT a state can still regulate articles of commerce.

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