Transcript Eastern Water Law Primer

Eastern Water Law
Primer
Lewis B. Jones
October 1, 2008
Topics
• Riparianism v. Prior Appropriation
• Regulated Riparianism
• Interbasin transfers
• Surface water v. groundwater
• The law of equitable apportionment
• Federal-state issues
Ripariansm v. Prior Appropriation
• “Riparianism”
– The traditional common law system.
– All eastern states follow, some western states as well
• Prior appropriation
– First in time, first in right.
– Subject to “beneficial use”
– Developed in Colorado among pan handlers.
• Many “dual doctrine” states follow aspects of
both systems.
Riparianism and Reasonable Use
• Two conflicting rights:
– The right to receive water in unadulterated form
– The right to make reasonable use of water
• The right is neither quantified nor fixed:
– No priority among riparians
– what is reasonable at one point in time may become
unreasonable at a later point in time.
• Most appropriate where water is abundant and
diversions are relatively minor.
Riparian Uses
• Traditional uses were restricted to riparian land
– the water right could not be “severed” from the land
– this rule developed in agricultural systems—what
about public water systems?
Regulated Riparianism
• Like all property rights, riparian rights are subject
to regulation.
• Most eastern states actually follow some form of
“regulated riparianism”
– Most states require a permit to make withdrawals
over a certain amount (e.g., 100,000 gpd).
– In these states, the regulatory agency determines
what is “reasonable” when it writes the permit.
– Most permit schemes include criteria for choosing
between competing uses, and most give priority to
existing uses.
Interbasin Transfers
• Extremely common in the West, very
controversial in the East.
• Many states have specific laws on point—either
prohibiting or requiring consideration of multiple
factors before a permit is granted.
Surface Water v. Groundwater
• “Riparian rights” generally refer only to surface
waters.
• Many states follow the rule of “absolute
ownership” for groundwater, though others
require reasonable use (same as surface
waters)
The Law of Equitable Apportionment
• 3 ways to allocate water among states:
– Supreme Court
– Compact
– Congress (has only happened twice)
• In the Supreme Court, the law of “equitable
apportionment” controls
– All relevant factors considered
– Local law is relevant but not controlling
– Few cases have had any environmental component
Federal-State Issues
• By law, the allocation of water resources is left to the
jurisdiction of States, but this distinction is very fuzzy in
practice.
– E.g., the Army Corps of Engineers allocates “storage space” as
opposed to water rights.
• The federal government possesses “navigation servitude”—
an easement allow the feds to do pretty much whatever they
want if it is related to navigation
• Other federal agencies like the Federal Energy Regulatory
Commission (FERC) and EPA play a role through permitting.
– Federal agencies should defer to states on water allocation issues.
Questions?
Lewis Jones
404/572-242
[email protected]