Western Water Law Doctrine - University of Arizonaweb.sahra.arizona.edu/education2/azwater/docs/lesson5/...Lecture Outline • Evolution of western water laws • Doctrines – Riparian,

Arizona Water Issues © 2012 The University of Arizona – HWR203

Western Water Law Doctrine

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Primary Question

• How to determine ownership and amount?– Unlike many commodities:

• Naturally renewing• Hard to package – always on the move• Can be degraded for secondary users• Highly variable flows in most Western rivers• Groundwater is out-of-sight, diffuse and mobile

• Is it a property right or a possession right?

Arizona Water Issues © 2012 The University of Arizona – HWR203 2


Lecture Outline

• Evolution of western water laws• Doctrines

– Riparian, Equitable Use, Prior Appropriation• Hierarchy

– International agreements– Interstate agreements– Federal Reserved Water Rights/Prior Approp.

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Early Water Law - Riparian Rights

Riparian Rights• “Reasonable use/Natural flow”

– undiminished in quantity or quality

• “Correlative Rights” – shared resource

• Amount of right– determined by proportion of

abutting acreage www.durham.gov.uk/.../usp.nsf/ Lookup/teesd/

Adapted from English System:Based on abundant available water sources

Typical countryside: Durham, UK

PROPERTY RIGHT

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Early Western Settlers - Equitable use

Spanish missionaries

Mormons arrive at Salt Lake

• Water viewed as a shared community resource for survival

• Water rights are NOTpermanent

• Allocation decided by mediation:temporal priorityneedlegal titlecommon good

“COMMON GOOD”

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Most Western States- Prior appropriation

USE & TIMEFundamental Change in thinking:

• Gold Rush Mining Act of 1866- Protects the appropriative rights of miners and other users- Allows you to stake a claim - without ownership of property

• Amendment of 1870-Miners are vested- Protects them from homesteaders

Miner pans for gold in CA around the turn of the century

historichwy49.com/ photos/miner.jpg6


Prior Appropriation - First in time…

www.enn.com/enn-news-archive/1999/10/

“The essence of the doctrine of prior appropriation is that, while no one may own the water in a stream, all persons, corporations, and municipalities have the right to use the water for beneficial purposes. The allocation of water rests upon the fundamental maxim "first in time, first in right." The first person to use water (called a "senior appropriator") acquires the right (called a "priority") to its future use as against later users (called "junior appropriators").” Source: http://profs.lp.findlaw.com/water/water_1.html

No Equity:During times of drought, when allocated water exceeds river flow, junior appropriators may not receive their allocation- even if they lie upstream of senior appropriators …or if their use is more socially important, economically more valuable or more efficient.

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Priority of Western Water Rights

1.International Treaties

2. Interstate treaties/compacts

3. Prior Appropriation• Federal Reserved Rights – depends on date reservation was established• States rights – must be in almost constant use

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International Water Agreements

Needed when waters controlled by more than one countryThree types:

(a) Local customs(b) International treaties(c) Decisions from international tribunals

International agreements supersede all other water allocations!

When Kansas and Colorado have a quarrel over the water in the Arkansas River they don't call out the National Guard in each state and go to war over it.

They bring a suit in the Supreme Court of the United States and abide by the decision. There isn't a reason in the world why we can't do that internationally.

- President Harry S. Truman

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Interstate Water Agreements

Interstate agreements (involve federal government):1- Congressional apportionment2- Interstate compacts (treaties)3- Equitable apportionment (Supreme Court)

Interstate agreements are needed when waters are controlled by more than one state (e.g. Colorado)

Interstate treaties always supercede state apportionments10


Federal Reserved Water RightsThese are water rights created when federal lands are withdrawn from the public domain (e.g. national parks, wildlife refuges, national forests, Native American Reservations, Military Reservations)

Federal Reserved Rights differ from State appropriative rights in that:(a) They are not lost by non-use

(b) Priority date is established when land was withdrawn

(c) Measure and limit are defined by “ the amount of water reasonably necessary to satisfy both existing and foreseeable future uses of water for the primary purposes for which the land is withdrawn”

(d) Beneficial use not required in all cases11


Prior Appropriation – Basic Criteria

home.earthlink.net/~andreacp/

The Acequia Madre de Tome ditchis one of the oldest in America

Criteria for perfecting an appropriative right:

(a) Priority - “First in time, first in right”(b) Beneficial use (details to follow)(c) … Intent, Diversion, Continuity …

Applies only to “natural streams”

Excludes groundwaterseepage waterwater which hasn’t reached stream

Administered on a state-by state basis12


Prior Appropriation: Beneficial Use

“Beneficial” & “Continuous” Use:

• “The adequate amount of water necessary for your use”• There can be no substantive break in usageThus it is not an unlimited right. However limits are vague:

Two parts:(a) Consumptive use:

municipal, industrial, agricultural, ecological

(b) Reasonable waste:transmission waste, evaporative losses

Not req. for Fed. Reserve rightswww.proshika.org/summary_2000_files/ irrigation.jpg

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How does prior appropriation differ from previous methods of water rights?

• Ownership of property provides no right to water• Assumes water flowing naturally is a public

resource until allocated• Ownership based on amount and time of usage• Abandonment will lead to forfeiture• No concept of equity or the common good• Water can be used anywhere as long as use is

“beneficial”• The right is transferable, at least locally

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Priority of Western Water Rights

1.International Treaties

2. Interstate treaties/compacts

3. Prior Appropriation• Federal Reserved Rights – depends on date reservation was established• States rights – must be in almost constant use

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Applying Prior Appropriation

• First, give priority to all treaties and compacts• Next, date all Federal rights based on when the

land was reserved for Federal uses,• Scan remain uses for breaks in continuity; ignore

earlier dates if water was not in continuous beneficial use,

• If a water user increases their use, the additional new use is assigned a priority based on its first use

• If a water user decreases their use, the lower amount still has the original seniority date


Practice Problem 1ID Date of

rightAmount (acre-ft) Table A: Description of water user

A A farmer who has been diverting 10 kaf of water since 1882.

B An Indian Reservation that was established in 1881 and is asking for an instream right of 10 cfs (~ 7 kaf/yr)

C A city that has been using 5 kaf since 1880.

D A farmer that has been in business since 1878 but who has been only using 10 kaf of water continuously since 1890.

E An International Treaty that was signed in 1944 for 1.5 Maf

F An Interstate Compact that was signed in 1922 for 7.5 Maf

G A state park fishery that was authorized in 1913 but has only been using 10 cfs (~7 kaf) since 1915

H A city that has been using 20 kaf of water since 1914


Rank 1 2 3 4 5 6 7 8ID


Questions and Issues to think about

• How did so many water resources end up in the hands of farmers?

• Why is it so difficult to transfer water from agricultural uses to municipal?

• What priority should be given to in-stream uses?

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ADDITIONAL SLIDES



Basic Problem Areas

• Water transfers – Is water an intrinsic property right, or can it be separable?– Riparian vs. Prior appropriation

• Ground water – Why are GW and SW laws different?• Federal reserved uses – what rights should the government

have to appropriate water for military bases, parks, Indian reservations and conservation?

• In-stream uses – how can natural, non-economic uses compete with societal needs?

• Diffused waters – who is responsible for or can take advantage of natural runoff and flood waters?

• Stored water – who owns and controls stored waters?20


Water Law

• General– Water is legally and historically a public resource.– Water’s importance: sustenance, health,

environmental, aesthetics– Water conflicts arise due to its irregular distribution

in time, space and quality.

– Most water (supply) law deals with property concepts, vs. contracts, liability

– Water law has Common law origins, ie. case law vs. legislative enactments

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Documents

Western Water Law Doctrine - University of Arizonaweb.sahra.arizona.edu/education2/azwater/docs/lesson5/...Lecture Outline • Evolution of western water laws • Doctrines – Riparian,