Water Law Survey. Presented by. Kathleen Callison Law Office of Kathleen Callison, PS

Transcription

1 Water Law Survey Presented by Kathleen Callison Law Office of Kathleen Callison, PS DISCLAIMER: The following materials and accompanying Access MCLE, LLC audio program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an as-is basis and should be independently verified by experienced counsel before being applied to actual matter. By proceeding further you expressly accept and agree to Author s absolute and unqualified disclaimer of liability. 1

2 Course Outline Riparian water rights Other laws relating to water Prior Appropriation Groundwater Transfers and changes of water rights The Federal role Trends / Evolving water laws 2

3 What is Water Law? Whisky s for drinkin and water s for fightin. - Attributed to Mark Twain Who has the right to use water? Common law origins, meeting the evolving needs of the community State-based, now mostly permit systems Federal role: reserved rights, water project development and management, interstate disputes Why is water law important? 3

4 Other Water-Related Laws Federal Water Pollution Control Act of 1972 (33 USC Sec. 1251, et seq.) ( Clean Water Act ) Dredge and fill: Rivers and Harbors Act of 1899 (33 USC, Secs. 401, 407, 411) Federal Safe Drinking Water Act (42 USC Sec. 300 (f), et seq.) National Environmental Policy Act (55 USC Sec. 4321, et seq.) 4

5 Other Water-Related Laws (cont.) Public Land Laws (Title 43 USC) Endangered Species Act of 1973 (16 USC Sec ) Common law nuisance Contract law State and Tribal water quality laws 5

6 Riparian Water Rights Prevalent in Eastern and Central states Origins in England: plentiful rainfall, moderate climate Settlements along rivers and lakes Natural flow theory Reasonable use of water Subject to reasonable use by other landowners 6

7 Riparian Rights as Property Interests An attribute of the land, not personal to user Part of bundle of sticks Not created by use, or lost by nonuse With increased competition and diversions, adaption of riparian principles Evolving law: Use of water by nonriparians: Pyle v. Gilbert, 245 Ga. 403, 265 S.E. 2d 584 (1980) 7

8 Reasonable Use depends on the circumstances No detriment to other users Owners share equally in use of the resource None has priority over the others 8

9 Public Rights Fishing and navigation: Public trust from English and Roman law Surface use: Bach v. Sarich, 74 Wn. 2d , P. 2d 648 (1968). Aesthetics/view: Los Angeles v. Aitken, Cal. App. 2d 460, 52 P. 2d 585 (1935) 9

10 Prior Appropriation: Adapted to the Developing West Origins in 19 th c. Gold Rush Large quantities of water needed for mining Dry climate Seven inches precip. (Nevada) v. 42 inches (Virginia) Non-riparian uses Competition with others Reliance on property interest and priority 10

11 Elements of a Prior Appropriation Water Right 1. Intent to apply water to a beneficial use 2. Actual diversion from the source for that purpose (Modern permitting systems may not require diversions for all uses) 3. Putting the water to beneficial use within a reasonable time (Diligence) 11

12 Instream Rights under Prior Appropriation Systems Where there is no diversion, states take different approaches Power Fisheries, navigation: Public trust doctrine (navigable waters) Aesthetic, recreation: State of Idaho, Dept. of Parks v. Idaho Dept. of Water Administration, 96 Idaho 440, 530 P. 2d 924 (1974). Public Trust: Mono Lake 12

13 Prior Appropriation: Key Concepts First in Time is First in Right Granting water rights: availability, beneficial use, not detrimental to senior rights, public interest Public ownership of the water Private ownership of the right to use water Waste prohibited Speculation prohibited 13

14 Property interest Not one of bundle of sticks : Usufruct right If in development = personal property interest If perfected by use = vested real property right appurtenant to the land In most states the right can be lost through non-use (Presumption of intent to abandon) Exceptions, eg. Nevada (intent to abandon must be proved by clear and convincing evidence) 14

15 Water Law Adapts to Changing Community Needs Lux v. Haggin, 69 Cal. 255, 391 (1886): California doctrine - Federal grant of water and land under prior appropriation system subject to existing riparian rights on private land Permits for large users in riparian states New York Michigan 15

16 Water Laws by State Pure Appropriation Law: Colorado Doctrine Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, Wyoming California Doctrine recognizes both riparian rights and appropriations, in varying degrees California, Nebraska, Kansas, Mississippi, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Washington 16

17 Water Laws by State (cont.) Riparian rights with permits for new uses Delaware, Florida, Georgia, Iowa, Kentucky Other states mostly riparian with statutes for specific purposes, such as storage Louisiana: Civil Code rather than English common law ( Rule of Capture ) Hawaii: Ancient customary rights, prescriptive rights, limited riparian rights 17

18 Groundwater Law: Theories 1. English common law Groundwater is unknowable Attribute of property ownership 2. Reasonable use Reasonably necessary use in connection with the land Recognizing potential impacts on others 18

19 Groundwater Law Theories (cont.) Right to use elsewhere not restricted if no proof of injury to adjoining landowners (Arizona Active Management Areas) 3. Correlative rights Rights of all landowners over a common groundwater source Coequal ( correlative ) rights May not exceed one s share of water even for reasonable use on one s own land 4. Prior Appropriation 19

20 Groundwater in Different States Texas English common law rule upheld (See Edwards Aquifer Authority v Day, 2012) Louisiana Civil law rule of capture ( ferae bestiae ) Arizona Modified capture/reasonable use (Active Management Areas) Washington Hydraulic continuity affects availability Colorado 2011 San Antonio decision: potential surface water impacts 20

21 Transfers and Changes of Water Rights Riparian rights originally not severed from land Most prior appropriation states: Rights may be severed from the land, transferred or changed Groundwater rights may be subject to special rules Property transfer v. regulatory approval 21

22 Federal role: Recognizing State Custom and Laws Congress has recognized state water laws Recently upheld by US Supreme Court in Tarrant Reg l Water District v. Herman, et al (2013) The states have sovereign rights. Statutes recognizing state laws Homestead Act of 1862 Mining Act of Desert Lands Act Reclamation Act of

23 Interstate (Federal-State) Compacts U.S. Constitution, Article 1, Section 10: No State shall without the consent of Congress compact with another State States allocate waters of a basin among themselves Compact is a contract/federal law Examples: Canadian River (TX-NM 1950) Kansas-Oklahoma Arkansas River (1965) 23

24 US Supreme Court Article III, Sec. 2, U.S. Constitution: Jurisdiction in all cases in which a state is a party Interstate Allocation: Equitable apportionment. Kansas v Colorado, 206 U.S. 46, 27 Supreme Court 655 (1907) Colo. v NM: 467 U.S. 310 (1984): Upholding prior use Tarrant (2013): Commerce clause does not trump states sovereign rights to manage water resources, Red River Compact 24

25 U.S. Congress Congressional Apportionment: Equitable apportionment not binding on Congress McCarran Amendment (43 USCA Sec. 666): Congressional consent to join federal government in state adjudications of water rights 25

26 Federal Reserved Property Rights Winters Doctrine : Winters v U.S., 207 U.S. 564 (1908) Purpose of reservation Federal public lands and Indian reservations 26

27 Water Rights in Indian Country Reserved rights under Winters Tribal rights under treaties. U.S. v. Winans, 198 U.S. 371, 25 S.Ct. 662 (1905), right to fish at usual and accustomed places Quantifying water rights: Practicably Irrigable Acreage (PIA), Big Horn I and II Evolving enterprises/evolving measures 27

28 Federal Water Projects and Contracts Central Arizona Project and others 43 USC Limited rights of landowners. Smith v Central Arizona Water Conservation District, 418 F.3d 1028 (2005) Endangered Species Act held inapplicable to renewal of federal supply contracts. Natural Resources Defense Council v. Salazar, 9 th Cir (2012) 28

29 Emerging Issues: Land Use Growing population = Increasing competition for water Water for development requires long range planning Regional agreements: Lake Tapps, Washington Arizona: Assured water supply Colorado: Pagosa Area Water and Sanitation District v Trout Unlimited, 170 P.3d 307 (Colorado 2007) 29

30 Emerging Issues: Environmental Nexus between water rights and water quality: PUD No. 1 of Jefferson County v. Wash. Dep't of Ecology, 511 U.S. 700 (1994) ( Elkhorn ) Climate change: drought, reduced snowpack, changed weather patterns 60% of the US in drought in 2012, USGS forecasts shortages in several regions by 2025 Drawdown of aquifers shows limitations of groundwater laws and management structures 30

31 Trends: Data and Planning We don t have perfect knowledge (e.g., hydraulic continuity and impacts of use) Technology supports data collection and analysis Watershed-based planning incorporates data Integrated Resource Management (Oregon) Increasing focus on conservation, water recycling, new infrastructure (e.g., storage) 31

32 The Future of Water Law Increasing demand and limited or unreliable supply in an era of climate change Data management and analysis Planning, contracts, permit-based approaches Balancing instream and out-of-stream uses Focus on water conservation and recycling, storage and other infrastructure Water laws continue to evolve to meet the needs of the community in the 21 st Century 32

33 Water has been called The oil of the 21 st century. Questions or comments - Contact: Kathleen Callison Law Office of Kathleen Callison Callison@CallisonLaw.com