Water Law

Water Law Outline Professor Noah Hall Winter 2012 Page 1 of 51
EXAM: 3 Hours Open Book 3 Questions 2 Issue Spotters 1 Policy
INTRODUCTION TO THE COURSE

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.
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.
RIPARIANISM
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 waters 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.
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 riparians 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 (Vermont1827): 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 Ps 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.
NOTE: Upstream versus Downstream is not important in reasonable use determination like it is in Natural Flow Doctrine
application.
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 persons 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 riparians 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 (Georgia1980): 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 (California1967): 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 Ds use of the water is reasonable, AND Ps 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 Ds protected reasonable use versus Ps 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 courts determination that the use is unreasonable under the given circumstances, UNLESS the court does in fact identify a use as per se unreasonable.
Remember that riparian law aims to keep the water in the river. 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. R2D Torts 850A Reasonableness of the Use of Water. The determination of the reasonableness of a use of water depends upon a consideration of the interests of the riparian proprietor making the use, of any riparian proprietor harmed by it and of society as a whole. 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, (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, land, investments and enterprises (i) The justice of requiring the user causing harm to bear the loss HALLS CHEAT SHEET FOR APPLYING FACTORS Determination of a reasonable use is a balancing test that weighs various factors, BUT they are not necessarily listed in any specific order in the Restatement. SO Approach a dispute between two riparians in this manner: (1) Before getting into the factors, toss out the per se unreasonable uses OR establish that a use is not a protected riparian right. 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. Naturally uses are just heavily preferred over artificial ones. 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. 850A Commentary: The general rule that the law does not concern itself with trifles is applicable. 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, quantity or level and causes minor inconvenience or slight harm to another.
(4) Now turn to 850A factors in the following groups and order Compatibility of the Use to the Body of Water Is either partys 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, 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, land, investments and enterprises Be careful here because Western water law is solely about first in time, first in right BUT Eastern water law is riparian, so Eastern water law is VERY defensive about applying this strictly. (i) The justice of requiring the user causing harm to bear the loss As a second to last resort, the court will say that the person causing the harm should bear the cost of it. Individual causing the harm may be using the water totally reasonably, but as a way to resolve the dispute, the court may determine that even though it is reasonable, it must be ceased because it is causing harm. 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, they are pretty far outside of what judges are comfortable opining about, especially since the effects could be far reaching. (a) The purpose of the use (c) The economic value of the use
(d) The social value of the use NOTE: On Exam, try and apply as many factors as possible. 25-Page Water Law Outline has a pretty good case here that we did not cover. We may have covered it later in material but if we didnt, it could be good to add, SEE Michigan Citizens for Water Conservation v. Nestle. I think we covered it actually.
Surface Uses on Artificially Created or Enlarged Waters

ARTIFICIAL WATERWAYS Artificial watercourses are waterways that owe their origin to acts of man, such as canals, drainage, irrigation ditches, aqueducts, fumes, and the like. 2 Common Types of Artificial Waterways Lakes formed from dam reservoir system that enlarge the water surface of preexisting river or stream. Excavations into which water flows by gravity or is introduced through intervention. The question arises whether the ordinary rules of riparianism apply to artificially created water bodies. Traditionally, 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. BUT the modern view is generally that riparian rights do apply. SO whether or not riparian rights apply to manmade non-navigable waterways depends on the jurisdiction. In many states, the distinction between natural and artificial can be very hard to apply. Most lakes in Michigan are artificially maintained by a dam or water height mechanism, but this does not necessarily convert them into artificial bodies. Anderson v. Bell (Florida1983): P owned riparian land with a creek on it. P dammed the creek, and it flooded neighbors land. P bought a property easement from neighbor that gave them the right to flood the land. Then D bought land from neighbor and wanted to use the waterway. The court ruled that D did not have riparian rights to the waterway. The right to use surface waters on a manmade non-navigable waterway is not automatic in riparian law. NOTE: Do not necessarily take this as controlling. Florida applies this rule, BUT many states do not. Michigan does apply this rule (See Thompson v. Enz). Depends on jurisdiction. 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. D was not entitled to boat on the entire surface of the waterway simply because he owned land that abutted the waterway. This could have been decided on contract principles because P had paid for the easement which did not give neighbor or D surface rights, 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 Dont want to discourage property owners from developing Dont 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. Also Florida is very swampy, which is economically worthless, so they want to promote the development of the state on a large scale. 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.
Maintaining Water Levels and Flows
Glen Lake Crystal River Watershed Riparians v. Glen Lake Association (Michigan2004): Ps are riparians on a river that
flows from Crystal Lake. Ds are the association of individuals that live on the lake. The lake has a dam to control and stabilize the lake level. Ds control the dam. When dam was built, Ds set the dam at the natural height they thought the lake should be. Ps sue because they want more water for the Crystal River and ask the court to lower the natural height of the river.
MCLA 324.30707(4) The trial court (upheld by this court) applied Michigan statute, which is very similar to 850A, and found that lake level should be lowered. Ps framed the argument in terms of what is better for the river, the ecosystem, the fish, etc Ds framed the argument in terms of what is better for them. The Statute: In a determination of the normal level of an inland lake, the court shall consider all of the following: (a) Past lake level records, including the ordinary high-water mark and seasonal fluctuations. (b) The location of septic tanks, drain fields, sea walls, docks, and other pertinent physical features. (c) Government surveys and reports. (d) The hydrology of the watershed. (e) Downstream flow requirements and impacts on downstream riparians. (f) Fisheries and wildlife habitat protection and enhancement. (g) Upstream drainage. (h) Rights of riparians. (i) Testimony and evidence offered by all interested persons. (j) Other pertinent facts and circumstances. NOTE: In terms of 850A, this is an argument based on social factors, specifically 850A(d), the social value of use. This means that it was up to Michigan circuit court judges to decide how to balance the factors, which can be tricky because you never know what is socially valuable to the judge. This is why framing the argument in terms of social benefit AND having better experts allowed D to win. NOTE: This was given to circuit judges to decide because the case predated Michigans establishment of an Agency to handle these decisions.
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, the size of the land a riparian owns does not factor into what uses of their rights are reasonable. This puts municipal suppliers in an awkward position with co-riparians. In most cases, municipal suppliers use is unreasonable under traditional riparian law, so when municipalities are involved, much, if not all, of traditional riparian law gets ignored. Municipal water use is also not well suited to Riparian law because municipal water use is not natural water use, BUT it is also not artificial water use. Municipal water use is not defined in terms of riparian law. So it is best to think of the municipality as a channel through which the water goes in order to be used by a citys population. Eminent Domain Steps In Even when a municipality loses in a reasonable use claim, the courts cannot shut down the municipal water provider. INSTEAD, the court invokes eminent domain so that the municipality can acquire rights to the co-riparians right of reasonable use. This does not always mean taking the co-riparians entire tract of land, although it sometimes does. The municipality only needs to acquire the riparian rights to the water and not the land itself. When a municipality condemns a riparians water use rights, they will have to compensate the landowner, and often the will additionally have to provide the landowner with all the water he needs. Compensation at intentional tort rate when rights are seized by eminent domain because seizure was purposeful rather than negligent. Biggest issue is what price the condemned riparian will be paid for the deprivation of his rights. The Basics Municipalitys power of condemnation derived from the state through enabling legislation or home rule provision. Typically lands outside the municipality cannot be condemned without special authorization For the most part, 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 condemners authority. The lawful exercise of the power of eminent domain requires that the property be taken only for public use.
AVOIDING CONDEMNATION OF MUNICIPAL WATER SUPPLIES Hudson River Fishermans Association v. Williams (New York1988): D, a municipal water supplier, provides water for 88% of Rockland county residents and industry. NY Statute requires a permit for this amount of water AND a showing of public necessity in order to get permit. D argues that very soon it will be unable to meet future need for water unless it can divert this water. P, a fishermans association, shows that water diversion will have a devastating impact on trout population. In this case, the Department of Environmental Conservation is permitted to issue a conditional permit to construct the artificial pond that is conditional upon a TRIGGERING MECHANISM. A triggering mechanism is some standard set by the agency, and if it is met, the conditional permits conditions are fulfilled and building may commence. Here, the triggering mechanism was when water use/demand reached a certain point. The court found for the municipal water supplier by balancing the populations need for domestic water with the interest in preserving trout. Unfortunately, the trout lose out to the peoples needs. NOTE on Administration In making this decision, the court upheld the agencys decision as well as the states practice of delegating these disputes to an agency. 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. A decision striking down an agencys decision will set bounds, but a decision upholding an agencys 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, BUT it does not exclude the possibility that there are other ways to interpret.
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. A river, for example, has land on each side at a higher elevation. The water from that land drains back into the river. But at some point the further away the land is from the river, the elevation peaks, and slopes down the other side into another basin. Interbasin transfers usually require administrative approval. If the agencys approval is challenged, the case will be an issue primarily of agency deference rather than purely water law doctrine. The standard of review is whether the agencys decision was arbitrary and capricious. The legal issue of interbasin transfer in riparian systems is very much like the eminent domain issue there are not clear legal standards, so an agency makes a decision and is given deference by a reviewing court. North Carolina v. Hudson (North Carolina1990): D, the city of Virginia Beach, is seeking to draw water from Lake Gaston, which is out of basin and on the other side of the state. Army Corp of Engineers approves the construction of a pipeline for interbasin transfer of water. 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. The applicable statute says that permits will be granted for interbasin transfer UNLESS contrary to public interest. After a balancing of the factors, the Corps determines that it is not contrary to the public interest and thus grants the permit. Factors Considered Effect of diversion on striped bass population The court is not an expert on this and neither are petitioners, 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, so in this case they were only required to determine the extent of the need. This court holds that the Corps had taken a hard look at all the factors, including environmental impact, and this court upholds Corps decision. City of Virginia Beach v. Champion International Corp (Virginia1984) [Complaint]: This was a complaint brought and not an actual suit because P, Virginia Beach, anticipates being sued. Rather than wait around for suit, they prepare this complaint. P wants to divert water from another Roanokes Basin. 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. P alleges that riparians have no right to water anyway because (1) it is floodwater, (2) the amount is minute, (3) while the riparians have riparian rights, they do not have a right to the flow that P plans to divert. The court rules in favor of P BECAUSE the water to be diverted is floodwater to which the downstream riparians have no claim.
If water is excess/surplus/drain water, the downstream riparians have no right to it. SO if P can capture it before it goes into the water source where it otherwise would have gone, P can have it free and clear. Other Reasons P Wins The class is comprised of riparians, but these riparians are downstream businesses who are using the water to dilute their waste. 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. Municipal water use is not a natural use because municipal water use is not defined, BUT the court recognizes that this will go toward a populations water needs, which is natural use.
The Law of Drainage

2 Traditional Approaches
Civil Law Approach Water runs where it should run, as it is wont to do by natural right. In its purest form, this rule makes any diversion of surface water from its natural flow a tortious act. If an actor does cause surface water diversion to the harm of neighbor, he will have to pay neighbor for the ride or pay damages. Its also possible that he could put in some kind of drainage ditch or system. Very few states have adopted this rule wholesale because it is anti-development. Under black letter, a developer could not build a large shopping complex because it would alter the flow of the water. Most states have modified the rule to permit alterations in flow. Common Enemy Doctrine Surface water is a common enemy of all landowners, so a landowner can do anything in his power to fight it. Most states that have adopted common enemy doctrine have a requirement that a landowner, in fighting drainage on his land, must avoid being actively negligent. Common Enemy is often touted for being better for development than civil law approach, BUT this is a lot of speculation. Civil law prevents development because it alters natural flow, BUT common enemy allows development but with serious consequences. A developer can build his shopping center even if it causes the runoff to go to his neighbors land. The neighbor cannot sue, but he will simply build a structure to block the water and force it to remain on developers land. Then another developer upslope from the shopping center might also develop and force runoff onto original developer. This rule stems from the idea that a person owns his property from the heavens to the center of the earth. Reasonable Use [Modern Approach] The law should not inhibit reasonable land development, BUT neither should it allow a landowner to expel surface water without regard to the consequences. SO Upper landowners are required to do whatever is reasonable to minimize the damage to lower landowners from the upper landowners runoff. NOTE: This is not the same as Riparian Reasonable Use; INSTEAD, it is the tort doctrine of nuisance imported into water law. Upper landowner should not be liable when upper has made reasonable efforts to minimize the damages, 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, then upper landowner is liable for damages and/or injunctive relief. The rule allows for flexibility and the best benefit to community as a whole, BUT it may be completely unpredictable. McGlashan Costs of development should not automatically be shouldered by people on lower lands while the developers reap the profit. Costs should balance the competing interests and the reasonableness of Ds actions in light of all the circumstances. Hall If upper owners have made reasonable efforts to minimize the damages to lower owners, the upper owners are not liable if some damage does occur. BUT if upper does nothing and damages is significant, he is liable. Argyelan v. Haviland (Indiana1982): A develop their land in such a way (buildings and pavement) that tons of runoff pooled on Hs land. H challenges the states Common Enemy Doctrine, 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 As land. Court finds for D and upholds the Common Enemy Doctrine. Under civil law, A would have been liable because an actor is liable for any alteration to the natural flow.
Under Common Enemy Doctrine, H simply has to live with the runoff or build a drainage system to protect himself, which would probably send the water even further down the line to harm someone else.
PRIOR APPROPRIATION
INTRODUCTION Prior appropriation is the primary water system in the Western United States. In many of theses states, the right to appropriate has been recognized by the state constitution. Most states have moved to a Permit System/Administrative System except Colorado (Colorado has Water Court). Administrative law cases that are brought before a normal court will defer to the administrative court. Court will only decide if the administrative court applied the law correctly. NOTE Understanding the Lingo In riparianism, the water is appurtenant to the land In appropriation, the water is appurtenant to the use
Elements of Prior Appropriation

1. Ownership of Land gives no one the right to use water 2. Water flowing in a stream in its natural condition is un-owned and is held by the state for the acquisition of users. 3. Natural Streams means rivers and lakes, but it excludes unconnected underground groundwater 4. 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. And today, this often includes the granting of a permit from an administrative permit system. 5. There are no limitations on the place of use. One can appropriate water from a river and carry it out of the watershed or even out of the state. It is often necessary to obtain legal access across other peoples land to get to the water. Law has allowed appropriators to acquire needed rights of way across private land. 6. One cannot hold an appropriative water right merely as an investment for future use. Abandonment One acquires the right by applying it to beneficial use, and one also loses the right be ceasing to make such a use. 7. Doctrine of Relating Back Ones priority is determined by the date at which the water was first applied to beneficial use. Or more commonly where a project takes time to complete, the priority is given (relates back to) the date on which the first work that would lead to a beneficial use was begun. The appropriator with the earliest date of appropriation is called the senior appropriator, and each person with a later date is junior to anyone with an earlier date. 8. When there is not enough water in a stream to meet the demands of all appropriators, the law requires the most junior appropriators cease taking water in order to ensure that water will be available for more senior appropriators. If the stream could only satisfy most senior appropriator, all junior appropriators would be required to terminate use. Pure appropriation doctrine rejects the idea of equitable sharing, and this is why the system is described as first in time, first in right.
How The System Functions

In prior appropriation, the USE has the right, rather than the USER, as in the case in riparian systems. Calling the River When an appropriator is not able to get as much water as he has a right to, he may call the river and seek to enjoin any upstream junior appropriators who may be decreasing his flow. First in Time, 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. Because Senior Appropriators are often downstream of Junior Appropriators, the upstream juniors may hat to let water flow by their point of diversion to assure that sufficient water reaches the downstream seniors. NOTE: If an actor cannot be a Senior Appropriator, then the best place to be is immediately downstream of the senior appropriator or a municipal appropriator. Futile Call Doctrine If a senior appropriator is getting no water, he may seek to stop an upstream junior from diverting. BUT if the senior would still not receive any water EVEN IF the junior were enjoined, 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. NOTE: The junior will be enjoined if shutting him down results in at least some usable amount of water reaching the senior, even if it is not the full amount he has a right to.
BUT if only a little trickle would get to the senior if the junior were shut down, then the junior will not be enjoined. 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. No Material Injury Rule A senior appropriator cannot make any material change to its water use that harms a junior appropriator. 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. Changing the point of appropriation is not a material change Nutshell says it is. Changing in the discharge point is a material change Nutshell says maybe it isnt. 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. 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. But sometimes return flow does not always return to the same river from which it came, or it can seep into an underground aquifer. This can result in water skipping over some appropriators and not being available until it reaches appropriators much further downstream. Can also have an effect on water quality. INSERT PROS AND CONS OF PRIOR APPROPRIATION
General Adjudications and Paper Rights

In the old days in the event of a controversy, a lawsuit was filed, 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. Some Distinctions In the appropriative system, the right is attached to and determined by use. In contrast, the riparian right attaches to the user (person, party, entity). In appropriative systems, several parties can group together under a common use, which results in mutual ditch companies and things of the like. A person can buy shares of water in the ditch company. The shareholders share the cost of maintenance and operation, but the ditch company actually holds the legal rights. 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. Mutual Ditches A mutual ditch company is when several users use the same ditch under the same appropriative right. Storage Rights As streams were fully appropriated, reservoirs were constructed to hold winter flows so that the water could be stored for irrigation. Storage rights were governed under prior appropriation principles. In the Matter of a Certain Petition for Adjudication of Rights to the Use of Water: This is an example of an adjudication system. Here there are several ditch companies that are treated as a single use, and the court is assigned to adjudicate the use rights. The senior appropriators may bring a claim because they are not getting water or because if the juniors continue as they currently are, the seniors will not get water in the future. The court sorts out all the appropriators according to priority. The winners get the use of the water, and the losers are given paper rights. 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. A paper right establishes that the person does have a valid appropriative right, but they do not actually receive water because the more senior appropriators have priority to it. 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, which resulted in more junior appropriators with paper rights. It is in the interest of junior appropriators to participate in the adjudication and get their paper rights because it protects their future interest. NOTE: When an appropriator gets a paper right because there is not enough water to get to his place in line, he will not be subject to losing his right because he has not abandoned it.
But its possible that if a person does not attend the adjudication to secure his appropriative right, 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, and he did not have the paper right to back it up. Prove Up Parties attended adjudications in order to prove up their appropriation, but the adjudication also decided several other things as well. Priority. Each appropriator in an adjudication was given a specific place in the line. Amount. Each appropriator was assigned a specific amount of water for the use he claimed. This resulted in appropriators vastly inflating their actual needs. So adjudication decrees often appropriated much more water than was actually used, and sometimes, even more water than was actually in the water body. BUT the adjudication decrees did not always set out time limitations for appropriative right, and these are crucial for resolving disputes. Is this true. Did they or did they not set time limitation. Irrigation water rights are time-based and also appropriative rights. An irrigation appropriation in dry months if far more valuable than on in wetter months. Problems With the Adjudication System People over-claim water. Subject to collateral attack. Adjudication decree is often an inaccurate description of the water actually used and the water actually available. Results in Paper Rights. Owners may not zealously defend their rights ever time there is a dispute.
Acquiring Appropriative Rights

There are 4 key elements to show an appropriative right. 1. UNAPPROPRIATED WATER The water to which a person seeks an appropriative right cannot already be claimed. In the old days, it was easy to do this. But today, whether there is any unappropriated water in a stream will be determined by an administrative agency. 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. 2. NATURAL STREAM A natural stream is defined as a stream of water flowing in a definite channel, having a bed and sides or banks, and discharging itself into some other body of water. The flow of water must be fairly constant, but a stream that dries up during certain times of year or does not flow sometimes can still qualify. But it must be more than mere drainage occasioned by extraordinary causes. There must be substantial indications of the existence of a stream, which is usually the fact that there is moving water there. Does Not Apply To Usually does not apply to groundwater. Some states will apply appropriation to groundwater, but most do not. Does not apply to man-made sources. Does not apply to vagrant, diffused, and occasional supplies such as springs and seepage. 3. DIVERSION (INSTREAM FLOWS) Most Western states require the physical act of diverting the water. This is often described as exercising physical dominion over the water. Instream Uses Appropriations requirement that there be a diversion presents a number of problems for those who would use the water in a less traditional way. The Modern Trend: States often allow for instream flows. It is really only California that does not. Often requires special permit or approval. Problems With Instream Rights: Proof. How can an owner of instream rights prove that he is using the water for instream use, and how can he show the amount? Whose Rights? If it is in the river, it is being used by the fish and wildlife, not the people. Economic.
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. Often requires a statute to establish instream right. Community Tension When water gets converted from a traditional to an instream use, there is often a flash point in the community because the community will have to change modify its industry water use and expectations. 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. The continuous use rule was meant to deter speculation. Possible Solutions State Established Minimums The state establishes a minimum stream level and all have to reduce to maintain the level. This is unpopular and may constitute a taking. Market Approach Sell the rights to the highest bidder. But still, 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. 4. QUANTUM OF BENEFICIAL USE Beneficial use is a BASIS, a MEASURE, and a LIMITATION. It is the basis for which an appropriative right is granted. It is the measure of how much water is needed for that use. And it is a limitation in that the water must be used beneficially and not wasted. Permissible and Non-Wasteful The requirement of beneficial use has two major components. The Use must be permissible in terms of purpose The Use must not be wasteful in amount, even if the purpose is perfectly appropriate. Basis (Intent and Due Diligence) The user must show that he has the intent to bring the water to beneficial use, and he must act on that intent with due diligence. 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. Crop Switching, Seasonal Changes, 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. Every state varies on the doctrine and case law of enlargement and change of beneficial use, but as a general matter, 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. Eg. If the purpose is to irrigate a tract of land, and conditions change of the methods of irrigation evolve, a person may be able to change their beneficial use. Increase in the acreage irrigated or the types of crops may be allowed. However, change of the season of irrigation or converting to year-round irrigation generally wont be allowed because beneficial use and appropriative rights are given on a seasonal basis. No Harm Rule Change in Point of Diversion, Place, Purpose, Season (Time), or Point of Return are limited by the No Harm Rule. A change will ONLY be allowed if it will not harm other appropriators. Historical Use A change will be limited to the historical consumptive use. Permission/Statutory Most changes require some permission from a deciding entity or are subject to Statutory limitations. Transfer or Right Opportunity to transfer appropriative right, but it usually looks more like a privilege than a right. State will often require administrative permit or a portion of the water or payment before it allows transfer. Measure The appropriated right is measured at the point of DIVERSION. Because there is no on-tract limitation, a lot of appropriative use is away from the water body. AS LONG AS losses in transportation and application are not considered wasteful, these losses are an acceptable part of beneficial use. Losses must be consistent with industry practice and economically and technologically reasonable. Amount Allowed at Point of Diversion = Conveyance Loss + Amount Used at Location of Use
Quality The upstream user is responsible for protecting quantity and quality. NOTE: This issue has not traditionally been litigated much. An appropriator does not have any protected right in the natural quality of the river as a whole. An appropriator only has an interest in ensuring that the natural water course can produce water for his beneficial use. As long as water reaches an appropriator and it is useful, then there will be no issue of quality. Permissible and Non-Wasteful Use Purpose for which water is used must be permissible and non-wasteful. Permissible irrigation, manufacturing, power production, and domestic and municipal use are ALWAYS beneficial. Questionable Aesthetic and recreational uses At one time, recreation and aesthetics were not considered beneficial, but today, they are regarded as beneficial in many states. Preservation has also been regarded as beneficial in many places. Once Beneficial Always Beneficial The general rule is that once an appropriative use has been declared beneficial, it will always be recognized as beneficial. A use DOES NOT become non-beneficial at a later time simply because other uses seem more beneficial. Not everyone agrees with once beneficial always beneficial. Some urge that what is beneficial should be adjudicated and based upon different factors, such as economic use, the public good, etc This traditional rule holds that market forces to not represent all costs, 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. Non-Wasteful The use, even if it is permissible, will not be allowed if it is wasteful. Appropriative system lends itself to waste When a person has a right to consume water, they have to use all of it, or they will lose their right. More than half of the water diverted by Western famers constitutes waste. Conservation not always a good thing Irrigation ditches create a habitat for birds and animals, and they could lose this habitat. Instream diversion means that there is more water in the stream and less water to appropriate. Waste makes conservation during a drought easier Water conservation technologies require increased energy use. The Fifth Factor: Abandonment When a beneficial use ceases, the appropriator loses the right. Use it or lose it.
Waste and Beneficial Use
Appropriation Definition of Waste Water that is lost or not used is not always waste. Under appropriative system, waste
means EGREGIOUS WASTE, 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. Most of the attention regarding waste is directed toward agriculture. 1. Transmission Losses Through leaky ditches and excessive evaporation 2. 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. Basic rule is that one can acquire right to water to make a permissible, non-wasteful use, and all wasteful uses must be discontinued. 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. Lack of Incentive A Western appropriator has not incentive to modernize irrigation in order to save water. Irrigation System is a Trade-Off Of: Water Energy Investment Cost There is no free way to make water use more efficient. It comes at an energy cost and/or an investment cost. Seepage loss also has some positive externality because it can be delivered to other users through return flow. The capitalist system works by rewarding those who make an investment, but here, investing to make water use more efficient offers no reward.
Instead, the water that is saved because of Xs investment in efficiency benefits someone else, like another appropriator downstream. Therefore there is a massive amount of inefficient use of water in the West. This is an opportunity for legal solutions to play a role. Actors who need the water for a more beneficial purpose like a municipality providing for a citys 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. Or the market can function by requiring the downstream appropriator who would benefit to pay the upstream appropriator the cost of economizing his system. Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist. (California1935): Farmer was using water in the summer for irrigation, and in the winter he used it to drown gophers. There is no irrigation benefit to drowning gophers, and the use for which this appropriation was given was irrigation. Note: There may be some benefit to drowning gophers, but in terms of the appropriative right, it must only be the beneficial use for which the right was originally given. An appropriator is entitled to make reasonable beneficial use of the water according to the general custom of the locality, so long as that custom does not involve unnecessary waste. Diverting water to kill gophers is not devoted to beneficial use and cannot continue. Reasoning Insofar as diversion exceeds the amount reasonably necessary for beneficial purposes, it is contrary to policy of law and confers no title, not matter how long it is continued. BUT an appropriator cannot be compelled to divert according to the most scientific methods known In Western States, drowning gophers is not beneficial. This is somewhat of an aberration, because the general custom is to get rid of gophers, but it could be reasoned that it is not related to the use for irrigation. In Eastern States, drowning of gophers is not reasonable. Erickson v. Queen Valley Ranch Co. (California1971): 107 year old appropriation right in which whole creek was appropriated. Creek was 2.5 miles away from the farm where the water was used. Given the distance, five-sixths of the water was lost in conveyance due to sand and hot desert (seepage and evaporation). Plaintiff defends on the grounds that this is the local custom for transporting water. An appropriator is not required to divert according to the most scientific method known; 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. On appeal, Ds use was not necessarily found to be wasteful, but the court did say that the parties need to go work it out themselves. In the even that P pays for a better conveyance system, D might have to give up 5/6 th of the water because that is the amount of his waste. But as Senior Appropriator, he would still be guaranteed his 1/6th even in a dry year. 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. BUT the court here finds that this is not necessarily the appropriate measure of a reasonable use. Traditional custom plays a part, but there are other factors to consider. NOTE: Although the trial courts holding based on traditional custom was overturned, Hall suggests that we take the traditional custom approach to determine whether a use is reasonable or if it constitutes waste. This is the standard in most states. State Department of Ecology v. Grimes (Washington1993): Department of Ecology submitted a petition for clarification of existing rights. Grimes submitted claims to his rights. Grimes submitted claim for 3 CFS of water, but the referee granted only 1.3 CFS. Grimes appealed. Determining Reasonability of Use The agency did not use the local custom to determine whether Grimes use was efficient. They used scientific reports of what would be reasonably efficient. NOTE: This Reasonable Efficiency Test based on scientific finding is NOT the black letter rule. This is a special case because the court is reviewing an agency decision and must give the agency deference and discretion. Takings Argument A vested water right is a type of private property that is subject to the 5 th Amendments prohibition against takings without just compensation.
BUT anytime the use can be limited (is not beneficial), there is no property right to the wasteful portion of use, and because there is no property right, there can be no taking.
Salvage and Beneficial Use
In ordinary circumstances, water saved by an appropriator who ceases wasteful use goes back into the river and is available for
the next most senior appropriator. This is because an appropriator has a right ONLY to the amount of water he can put to beneficial use. 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. Y is opposing Xs capturing of the seepage, because it usually becomes return flow that Y gets. One persons waste might be something that other people want. Southeastern Colorado Water Conservation District v. Shelton Farms Inc. (Colorado1974): The Arkansas River has been fully appropriated for over 100 years. Shelton Farms kills and removes a lot of water-consuming weeds so that he could use the surplus water gained in their absence. Salvaged Water The court holds that salvaged water is water that belongs to the system that would originally go to waste. It is salvaged in that it is recovered from the stream by offsetting existing uses or losses. The plants that use a lot of water are thieves that stole water from the system, and Shelton stole the water from the thieves. Developed water, on the other hand, is water that would not be in a system but for human effort. Salvaged water, in contrast, is already in the system and simply freed up or recovered. It is subject to appropriation and belongs to the stream, not to the salvager. 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. v. Kovacovich (Arizona1966): D was not using all of his water effectively, and some of it was running over his land. He improved his ditches by lining them with concrete and diverted the saved water to another part of his land. The question is whether he should have applied for the right to use the surplus water running off his land. The court holds that any practice, whether through water saving procedures or otherwise, 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. If downstream lines the ditch, he doesnt get the extra water, and he cant sell it If the upstream lines the ditch, water goes back into the system and next downstream in line gets it. The policy choice is to let the conserved water go down to other appropriators. It cant be sold or used, so appropriators have no incentive to conserve. 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. 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. As such, these states have enacted laws that give the appropriator the benefit of his conservation. California Appropriation Conservation An appropriator may keep or sell water that is saved through conservation/efficiency improvements. Oregon Appropriation Conservation Same as California EXCEPT when an appropriator in Oregon sells the water he has conserved, he is required to return 25% to the state which is reserved for instream flow. NOTE: Nothing in the appropriative system allows you to sell your water, so this is something the states have added on themselves.
Wasteful Use as a Constraint on New Appropriation
Traditionally, waste doctrine is invoked (at most) to limit the amount an appropriator can use of his existing appropriation.
So the following case represents an effort to use the doctrine in a very unconventional way.
Environmental Defense Fund v. East Bay Municipal Utility District (California1973): Plaintiff, EDF, claims that
EBMUDs municipal uses are wasteful of its existing appropriation, so EBMUD should not be able to make new appropriations. EDF is claiming that if EBMUD is granted a new appropriation, it will use it in a wasteful way. AND that if EBMUD could just recycle its current waste water it wouldnt need the appropriation it is applying for.
The Import of This Case: Basically EDF is asking the court to require EBMUD to use reclaimed water comprised of rain, runoff, and treated sewage water. 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. There is almost NO case law that require users to conserve water, MUCH LESS that requires users to recycle water. 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. It is merely an interesting application of Californias constitution, which requires that resources be used to the highest extent possible. The court did not say that EBMUD had to recycle, but they did hold that EDF was entitled to make the argument.
Rights of Recapture
In recapture cases, an appropriator has often been irrigating, and, as is common with traditional irrigation techniques, a certain
amount of water is not consumed, but drains off the land, or seeps into the ground where others use it. This situation may persist for some time until the appropriator decides to recapture the runoff and reuse it. Usually accomplished by building a ditch at the lowest point of appropriators land. Recapture v. Reuse There is a big difference between recapture and reuse, 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, uses only a portion of it, and then recaptures the seepage or excess and puts it to that same beneficial use on the same land. 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. Reuse If after recapture, 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.
SEEPAGE In the case of seepage, the person benefitting from the seepage before it is recaptured is usually not an appropriator from the stream where the water was taken. He is a seepage appropriator. He captures the runoff in the vagrant form known as diffused surface water. He opposes the owners being able to recapture the seepage from him, and will argue that he has depended on the runoff and should be treated like any other appropriator. He will also argue that seniors right is limited by the amount he originally beneficially applied and consumptively used on his land. This is usually a successful argument, but there are some exceptions. Bower v. Big Horn Canal Association (Wyoming1957): P is a seepage appropriator who claims runoff surface water from Ds land. P has a legal right to the seepage, but she needs a right of way onto Ds land to get the seepage and carry it away and put it to good use. D is refusing P the right of way. The court holds that P has right to water seepage and may go onto Ds land to get it, BUT D can stop the seepage whenever he wants. Can D line his ditch to stop the seepage water from getting to P? Yes. P has an appropriative right to the seepage that is senior to any others who want to use that water. BUT the water that P has a right to is the water that comes out of the ditch. If D lines the ditch so that no water comes out, 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 LONG AS 1. It is captured and reused within the original land AND 2. It is used for the original purpose of the right. General Rule for Seepage Appropriator If seepage appropriators land is situated so that seepage would naturally run through the land and back to the original river, 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.
BUT if the seepage would run off in another direction and not return to the original water source, then the landowner can appropriate the seepage.
SELLING AND REUSING SEWAGE Today water is put back in use in several ways, from replenishing groundwater basins to irrigating golf courses. An important question is whether cities can sell or reuse their sewage. Arizona Public Service Co. v. Long (Arizona1999): City wants to inter into a long-term contract to sell its wastewater. Two downstream appropriators objected, arguing that most of the water that they relied on to satisfy their needs was the Citys effluent discharge that the city is now trying to sell. Court Determines 1. City can put its sewage effluent to any reasonable uses it sees fit. 2. Downstream users can appropriate the sewage effluent only from the original source, BUT the city is under no obligation to discharge the effluent back into the source. 3. City does not own the water; it is merely selling an interest in the water that does not re-enter the natural stream. Note the Distinctions The water itself is public water, BUT the waste water is neither salvage nor developed water. This is because effluent water is subject to legislation, but no legislation has been passed yet that actually regulates effluent. As long as the city does not return the effluent to the stream, the downstream appropriators do not have a right to it. BUT as soon as the effluent goes back into the stream, it is subject to appropriation by the next party in line.
APPROPRIATION FOR USE AND REUSE Water Supply and Storage Co v. Curtis (Colorado1987): Applicant filed for a water right for Trap Lake II, a proposed reservoir on the side of presently existing Trap Lake. He requested a ruling that water may be used and reused and put to a succession of uses until totally consumed. Anti-Speculation Doctrine Holding water for future investment purposes is not a beneficial use. In order to be granted appropriative rights, there must be a specific PURPOSE and INTENT to use the water. 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: This interbasin transfer exception is kind of a fiction because it ignores the circumstances of the other watershed. It is true that we want to encourage users to continue using their waste water until the fully utilize it. BUT here there was not clear intent as to what the water was going to be used and reused for. Speculation is not allowed because it is the first step towards a water market. Private Storage Not Allowed Public Storage OK (Reservoirs, US Bureau of Reclamation)
PERMIT SYSTEMS AND ADMINISTERED WATER RIGHTS

Introduction All Western States except for Colorado have a permit system for administering water rights, and most Eastern states do as well. Today permit agencies have a much broader authority and more substantial role than in the past. 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.
How Permit Systems Are Administered
Californias system is typical of most administrative water systems. The Process:
Prerequisites In order to get a permit the applicant must first show that 1. Beneficial Use 2. Water not already appropriated 3. Diversion 4. From Natural Stream Policy Filter AND some states (California) have an additional requirement that the water use be in the Public Interest. Application Requirements In actually applying for the permit, there must: 1. Be a specific applicant or water user 2. File an application with the board 3. Intend to put the water to beneficial use 4. There must be enough unappropriated water for the proposed use. Unappropriated Water Defined as: 1. Water which has never been appropriated or 2. Water which has been appropriated and subsequently abandoned after previous appropriator failed to put it to beneficial use or 3. Water, once it has been appropriated, flows back into an underground channel or any surface water body. The Review Once the application is filed: The Board publishes notice of the application in some public record, usually the federal or state register. If anyone is going to protest, there is a protest period during which those who appose the appropriation may try to convince the agency to refuse to grant the appropriation. This rarely happens. Agency must have substantial evidence on which to base a denial. It is not just a weighing of which argument is better. If application is not protested, no hearing is required. Permit issued. If the application was issues against the protest of interested parties, the protesters can appeal. Appeal goes to judicial review in the trial court or state court of appeals, depending on the state. The standard or review is whether or not the agency was arbitrary and capricious in its decision. As long has the agency had substantive evidence for its decision, the agencys decision will be affirmed. It is not a weighing of the evidence; it is whether the Agency had any reason to make its decision.
The Public Interest Standard
At times, the agency includes a public interest requirement for granting a permit. Central Delta Water Agency v. State Water Resources Control Board (California2004): Delta Wetlands Project wants to
build some dams in order to create water reservoirs to eventually sell. DWP figured that because California is growing, they would eventually be able to sell the water The DWP did not know what the water would be used for, but they simply assumed they could eventually sell it. Board issued the permit on the grounds that there is the potential that it will be put to beneficial use
The California Court of Appeals overturned the boards issuance of a permit based on lack of beneficial use and on prior appropriations prohibition of storage of water for speculation. Court also said that such storage and speculation was not in the public interest. NOTE: The right to use water is also limited to that amount reasonably required for whatever beneficial use the water will be used for. If you have no intended beneficial use, then impossible to determine limit. Reasoning Speculation Not in Public Interest The argument against water speculation is that there are some things that we dont trust the private marketplace to take the best care of. 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. Black letter rule on speculation of water in California is that one may not speculate and hold water for future speculative use. Shokal v. Dunn (Idaho1985): Trust company sought to appropriate water from Billingsley Creek. Permit was issued. Plaintiffs sought judicial review. Under Idaho law, if the appropriation conflicts with the public interest, it may be denied. The court held that the agency had not properly determined whether issuance of this permit was in the public interest. It based its determination on the following factors: 1. Benefit to applicant from proposed appropriation 2. Effect of the economic activity resulting from appropriation 3. Effect on fish and game resources and public recreation opportunities 4. Effect on public health 5. Effect of loss of alternate uses of water that might be made within reasonable time if not precluded or hindered by proposed appropriation 6. Harm to other persons resulting from proposed appropriation 7. Intent and ability of the applicant to complete the appropriation and 8. Effect upon access to navigable public waters. Several other elements, though obvious, 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. Permit applicant has the burden of showing that he has met the public interest standard. If a protestor is challenging the standard the agency used, he has the burden of showing that the agency did not use a standard or its standard was baseless.
Basin of Origin as a Test of the Public Interest
Riparian law doctrinally limits out of basin transfer and use, so in the East, water use does not transcend watershed lines. BUT in the Western Appropriation states, out of basin transfer is not so limited. 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. People are concerned about the water being taken out of the locality to other areas. BUT there is also an economic element: Water is essential to development. Also people buy property next to water because they want to be next to water, and they dont want the water to be taken somewhere else. SO the doctrine of weighing the public interest has expanded to limit out of basin transfer in certain instances.
Water Markets
Water markets refer to the economic system of selling the rights to water.
But because the right to water is often connected to land, one of the main focuses of water markets is whether the rights can be separated from the land and sold. The Appropriative Right is attached to the land and is transferred with the sale of the land, unless otherwise specified. The interesting question then is the extent to which water can be severed from the land or sold elsewhere by the owner. 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; it goes to the person who got there first.
Property can usually be sold, so why should this be any different. Encourages Conservation If a water owner could sell the surplus he saved by lining his ditches, it would create an incentive to conserve. BUT it would eliminate the status quo, which people have depended on to develop their current use. Would also allow the sale of water for instream uses BUT there is a free rider problem. Most would wait on a group to pay to secure the instream rights. An individual would not put up the money to benefit everyone else. Encourages Cleanup of Waste (Reduce Contaminated Return Flow) Because waste could be sold for purposes like cooling at energy plants, being able to sell it would encourage waste collection. Eliminates Deadweight Loss When a user buys land for water rights in an appropriative system, he often does not use the land because his real goal was to get the rights. If rights could be severed, then that empty land could go to good use. Faster Allocation There would not need to be long-lasting administrative disputes because the allocation would be decided on the sale. Allows for Allocation to Adjust to Changing Water Demands, Conditions, and New Technology Longstanding Appropriative Rights date back into history, so there is little updating or revamping even when use, demand, and technology have changed. 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. If the water market took over, these communities would die. Water is a Public Good Water markets take a public good and profit from public need. There is also the danger that a company could get a monopoly. 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. But there is plenty of water in the lake. But it could lead to over appropriation Solution: Government Auction First, the government makes sure that basic human needs are met (3% consumed by human) Then government makes sure ecosystems 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. Our basic needs will not change, but the ecosystems needs change all the time What would the money go toward? Isnt 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, the issue
was merely whether or not those rights could be severed. Now Western States also allow transfer and sale of water rights with varying legal restrictions. BUT NOTE: As a practical matter, in some states, the sale of water rights is still prohibited. The Application for Transfer of Rights When a user wants to transfer or sell water rights, he must go through an application process very similar to the permit system for when water rights are granted. When Transfer Application Required A user must file an application and gain approval any time he plans to change any of the following: 1. Point at which water is diverted 2. Time of year when water is used 3. Place where water is used 4. 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.
BUT the main concern is that any material change will harm other appropriators, especially junior appropriators. So, certain limits are imposed. 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, location, type of use, and time of use No Harm Caused by Change The common objective is to protect junior appropriators, 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. No harm certainly applies to quantity, but it also applies to quality if another appropriator depends on a certain quality for his use. NOTE: If a proposed change would cause harm, but the parties are able to fashion it in such a way to avoid the harm, then it may be allowed. 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, then it will violate the No Harm Rule. 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, as long as it is being put to the same beneficial use. 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 its beneficial use is unclear, then it violates the no speculation doctrine. 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 argument here is that the unused/wasted water has been abandoned. High Plains A&M v. Southern Colorado Water Conservancy District (Colorado2005): High Plains petitioned to change its water use from irrigation to any one of 50 other uses. The court denies the change for two reasons. Because the proposed use includes 50 possible uses it is impossible to know if other appropriators will be harmed, AND such a broad and undefined change would constitute a new right entirely and thus violates the anti-speculation doctrine. In Re Application of the Catherland Reclamation District (Nebraska1988): Little Blue filed four applications to divert and impound water from the Little Blue River. While the applications were still pending, Little Blue assigned its four applications to the Catherland Reclamation District. Nebraska Director of Water Resources (The Agency) approved the assignment and granted the application. Appeals Court overturned and held that while a user, through the Agency, can acquire and dispose of water rights, Little Blue did not have a right. He merely had an application. Applications for water rights are not personal property. Merely a request for permission. Approval of application merely authorizes successful applicant to begin construction and take other measure to perfect appropriation. If the person could sell their application, it would encourage collusion and thereby defeat the rights of other appropriators on the river.
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 users
right to use water. 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. Any physical taking of any portion of an owners property is compensable. Regulatory Taking A regulatory taking prohibits an owner from fully using his property because of the passage of some new law or regulation. The owner still owns the property, but he may not be able to use it in a way that is economically feasible. Only compensable if Regulation wipes out 90-95% (basically total) of the propertys value. Regulatory Takings Challenges (Lucas v. S.C. Coastal Council, 1992): Not a Taking if Regulation Grounded in Background Principles of Law If govt regulation is grounded in background principles in the common law, is not a regulatory taking b/c under common law neighbors could bring suit and court could adjudicate the conduct. Government regulation is like a preemptive lawsuit. Basically, if the government challenges someones right or takes water in the same way that a citizen LEGALLY could, it is not a taking. But if the government challenges or infringes upon a water right, and if the government were an ordinary citizen it would lose in court, then it is a taking. Bundle Of Sticks Theory if the contested use was not one acquired by the owner at purchase, the takings claim must be rejected at the outset due to lack of a protected property interest. 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, 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. Under Oklahoma statute (discussed below), riparians were limited in their water rights to Water used for domestic purposes (household, livestock, irrigation) Any pre-existing beneficial use that the riparian had properly validated at some time prior Franco-American Charlaise Ltd. v. Oklahoma Water Resources Board (Oklahoma1990): 20 years before this action, the Oklahoma legislature enacted a statute that terminated unused Riparian water rights. The statute limited water use to (1) domestic water; (2) any pre-existing beneficial use. It also gave Riparians the opportunity to perfect and establish all beneficial uses. BUT if there was no pre-existing beneficial use, then the statute required the riparian to seek a water right through the appropriative system. This action arose when the City tried to appropriate a bunch of water. The City is not Riparian, but is seeking an appropriative right to the waters that used to be Riparian but were extinguished when the legislation was passed. The Riparians rush into the action and claim that the state has been taken without compensation in violation of the Oklahoma Constitution. The Oklahoma Constitution specifically defines property to include any valuable interest. A Riparian does not own the water in the stream, BUT he does own a vested common law right to the present AND future reasonable use of the stream. Because the statue takes that right without compensation, and because the right has value (even though it is not owned property), it is unconstitutional. 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. 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.
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. Abandonment Provision held Unconstitutional, BUT the court did uphold the provision that limited riparians to beneficial use. In re Waters of Long Valley Creek System (California1979): Riparian owner had used water on 89 acres for 60 years. He applies for a permit to irrigate other 2884 Acres. 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 issue here is whether such a provision is Constitutional. The statute recognizes that a landowner has historically possessed a common law right to future use of water in a system, subject to reasonable and beneficial use. BUT also recognizes that legislature can enact laws to further the policy in the statute. 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. Court holds that board is not altogether authorized to extinguish a riparians right to future reasonable use, 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 states interest in fostering reasonable and beneficial use of water resources. In other words, the board cannot legally extinguish the right BUT it can regulate it to the point of virtual nonexistence. According to Hall, 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. This is completely opposite to the Oklahoma decision. 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. Joseph Saxs Argument Sax advocates for the forced giving up of water rights to the state. Wants the government to get involved in regulation of water use so that more water is kept in the river. Suggests that courts use the waste doctrine: If water is being wasted, it should be returned to the river. State can deny it to the next junior because he would not have been getting it anyway. No existing use would be cut off. Courts have been willing to permit the abolition of wasted or unused water rights. Oregon Model Sax also suggests the Oregon Model, which holds that if a water user conserves water, he can sell the excess as long as he puts 25% of it back in the river, allocated to the state for instream use. Sax argues that this is not a taking; it is a tax. The state is giving the user 75% of water he would not otherwise have. Saxs basic point is that water is a public good, and it is a valid exercise of police power to regulate it in order to preserve it for the future. Analyzing takings issues. Ask (1) Physical or Regulatory Taking. Physical invasions are always compensable. (2) If it is regulatory, then ask if it compensable. When is it compensable? When the regulation so greatly diminished the value of the property that it is no longer economically viable. Court are generally deferential to the state of this type of legislation. Courts have rejected the following takings challenges: Requiring holders of water rights that are not part of the states administrative system to register right w/ the state. Department of Ecology v. Adsit (Washington) Retroactively applying forfeiture statute to invalidate water rights. Town of Eureka c. Office of State Engineer (Nevada). Requantifying water rights using different units than previously used. McDonald v. State (Montana). According to Sax, there are only two ways to win a takings argument: physical invasion or deprive of all The release requirement. The regulation most likely to be challenged are those that require existing appropriators to make releases in order to augment stream flows. Waste reduction. Cut back on existing wasteful uses.
Judicial Takings
Judicial takings bring up the issue of whether the courts have a greater degree of freedom to change a users water rights than
the legislature.
A judicial taking is where a court not following precedent arguably results in a change in water law. The court says that this is not a taking because the law was misinterpreted. Theoretically a court decision could be a taking because it is a state actor and it can count as a regulatory taking. BUT it is impossible to find in actual case law because courts will not generally change their own decision. Also because a judge is responsible for interpreting current law; the court is just saying what the law is and what rights actually existed. McBryde Sugar Co. v. Robinson (Hawaii1973): There is a dispute between sugar growers because of a system of carrying water out of the watershed to far away sugar fields. 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. In other words, the court is saying the water rights are appurtenant to the land and can only be used in connection with the land. This holding would arguably be a taking because it was a drastic departure from what the law was expected to be. We will not be tested on Hawaii Water Law, but it serves as a good example of when a takings challenge based on a judicial taking might succeed. Judicial Takings Challenges Bottom Line In order to argue that a judicial decision is a taking, a user would have to show that the decision is a radical change or total departure from any precedent, common-law background principles, and/or statute. Also Note Federal versus State Courts If the state supreme court makes a decision that a user wants to argue as a taking, he would probably go to federal district court. State courts are usually more favorable for arguing something is a taking than Federal Courts.
GROUNDWATER DOCTRINE
Introduction to Groundwater
Why is groundwater treated differently than surface water when for much of the country, groundwater and surface water is
hydrologically connected and as a matter of science, 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. The modes of access are different. Groundwater is much more expensive to access. Information is lacking. Groundwater is not as visible, nor is its extent or network. Use of Groundwater Surface water has far more competing uses than groundwater. Surface water can be used for aesthetics, recreation, navigation, etc. Groundwater, on the other hand, is purely used for economic purposes. Advantages to Groundwater: Widely available, readily abundant, and a user does not necessarily have to pay a higher land price (like a riparian) to access it. Geographically speaking, it is accessible everywhere in the country. Does not generally require treatment. It is not polluted, and the only contaminants are natural. Tends to be very clean, highly oxygenated, and uniform in temperature. Disadvantages to Groundwater Access is expensive. Pumping requires a lot of energy. Does not recharge. While surface water is readily renewable, groundwater is sometimes a finite/fossil resource or recharges slowly. Subsidence. Land above pumped aquifer depresses. Hydrogeology and Informational Limits Basic Principles of Hydrology The space below the surface of the earth stores groundwater. The groundwater moves, but it moves very slowly. Water filtrates through the surface and the force of gravity pulls it to a confining bed, an impermeable layer. The area where the water collects is called the zone of saturation. Unconfined v. Confined Aquifer: An unconfined aquifer is from the top down a permeable surface, the water table, confined by a confining bed. Just the wet dirt under the land. Needs a screen to filter out the junk. Lower quality water. A confined aquifer is surrounded by impermeable material. The water level in a confined aquifer is measured by the potentiometric surface (pressure). Artesian Well is an example. Well penetrates confining layer and water rises up. Uses no power, just allows water to break through confining layer. Higher quality than unconfined. Gaining Stream A stream that takes water from ground water. Most common type of stream. More desirable because it will have a more consistent flow and high quality (runoff water that feeds losing streams is more polluted). High oxygen levels and consistent temperature. Losing Stream Stream that feeds from runoff. Water from these streams seeps into the water table. More common in the west. Cone of Depression When a well is dug it creates a cone of depression. The cone of depression in an unconfined aquifer is smaller and expands slower than that of a confined aquifer. As the cone of depression expands, it pulls surrounding water more powerfully and may result in well interference. Well Interference As groundwater is withdrawn through a well, the water level in the well declines and water moves from the surrounding aquifer into the well. As the cone of depression from the well expands, it can adversely affect the ability of other wells to draw water. Subsidence Generally occurs because the force of gravity combined with the lower water level in a confined aquifer.
The 5 Doctrines of Groundwater Law
GENERAL DOCTRINES OF GROUNDWATER LAW NOTE: These are not necessarily doctrines. They are more like descriptions. Each States approach to Groundwater more or less fits into one of these categories.
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, BUT the water is usually viewed as property rather than as a right, 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.
American Reasonable Use Rule Absolute Ownership American Reasonable Use is NOT actually reasonable use. It is merely Rule of Capture limited to On-Tract Use
PRIORITY
Prior Appropriation
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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. Correlative Rights are exactly the same as Restatement Reasonable Use, but a dispute will take into account on-tract and off-tract use. In On/Off Dispute, On will win, and Off can only have surplus if there is any. In On/On or Off/Off, Reasonable Use balancing test will be applied.
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.
It is not about priority or right, because the rule basically says, if someone captures the water, it belongs to him. It does not matter when a person gets the water or what he will use the water for. Applications: Absolute Ownership Once a user captures the water, he can use it for whatever he wants. Not limited by On-Tract use. American Reasonable Use Once a user captures it, he is only limited in that he must use the water On-Tract. (Has nothing to do with Riparian Reasonable Use or Restatement Factors. Never use balancing Factors for this). Reasons For Keeping Rule of Capture Have had it in the past; if people want to change it, they should leave it to the legislature. There is not a lot of information to counter this argument, but it is total BS according to Hall. Promotes development. Removing Rule of Capture would hamper development. Dont want to hold people responsible for consequences they could not foresee. A well digger may not know he is going to be taking from other peoples wells.
Sipriano v. Great Spring Waters of America [Nestle] (Texas1999): Well dispute arises when Nestle begins pumping large
amounts of groundwater the dries up the neighboring wells. This occurred because of well interference. Nestles well was bigger and more powerful and sucked water away from neighbors. Neighbors bring suit. Sipriano and Neighbors were there first, but Siprianos well only goes down 200 feet. Nestles goes down 1000 feet. Texas is a Rule of Capture State, so the court holds that it will ONLY give protection to users harmed by malicious or extremely egregious wasteful use. As such, Sipriano cannot recover because Nestle has capture the water. Hall The rule is essentially no rule. Whoever can pump the most gets it. NOTE: Rule of Capture will never lead to a PHYSICAL takings claim. BUT if the government were to regulate such that a user was not allowed to capture certain water or only capture a certain amount, then it would be a REGULATORY taking.
American Reasonable Use
American Reasonable Use is NOT a reasonable use rule.
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. The On-Tract limitation is NOT determined by the location of the aquifer or underground water source. It is determined by the property on which the well exists. If a user builds a pipeline to transfer water from his well to a place off the property, it will violate the rule, even if the property the water ends up on is above the underground water source. If a user builds a well that is not above the water source but still pulls water from the underground water source, this will not violate the rule. Martin v. City of Linden (Alabama1995): Dispute between a municipality and a landowner over reasonable use of a common aquifer that lies beneath the property of both parties. BUT the city is transporting the water from the land in which it was pumped back to the city to supply the citys water needs. Court holds that Martins use is protected and the City cannot dig their well because Martin is using the water on-tract, and the city is planning to pump the water off-tract. In American Reasonable Use, and off-tract use will not be protected. Martin wants an injunction because she claims that the citys pumping will deplete and/or irreparably damage her will. 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. BUT the special facts of this case make an economic solution untenable. If the city digs their well here, it could ruin the aquifer altogether. Then there would be no measure of economic relief that would compensate Martin. Furthermore, without an injunction, the city would go ahead and NOTE: If this were a rule of Capture state like Texas, the City would win.
Correlative Rights
Correlative rights doctrine IS a reasonable use balancing test BUT ONLY in certain situations.
Surplus Water If there is surplus water, then it may be used by an off-tract user AS LONG AS the on-tract user has gotten what he needs. If there is not a surplus, on-tract will always be preferred, and if there are two competing users with same tract status, reasonable use balancing test will be employed. 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, Correlative rights will decide in favor of the on-tract user. 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. On-Tract v. On-Tract OR Off-Tract v. Off-Tract In a correlative rights state when there is a dispute between users with the same on/off tract status, correlative rights will apply a Reasonable Use Balancing Test Analysis. 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. The 1 acre user should get 1/4 of the water, and the 3 acre user should get 3/4 of the water. BUT Courts do not focus on the proportionality allotment anymore and instead focus on reasonable use. Katz v. Wilkinshaw (California1903): Plaintiffs sued newer water users who dried up the well with off-tract uses.
California uses correlative rights for groundwater. California does not like rule of capture because it creates a race to get all of the water. In American Reasonable Use, Plaintiffs would win because their use is on tract. In rule of capture, Defendants would win because they can keep the water they capture. Court rules that Plaintiffs have a right to the water because they are on-tract users, and that Defendants do not have a right to the water because they are off-tract users. 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. The reason that less disputes arise between on/off tract users is because if a dispute arises, it means there has been harm to the on-tract user, and the on-tract user will always win.
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. Use interferes with someone elses water use 2. Use exceeds reasonable share of annual supply 3. Withdrawal has a direct and substantial impact on a lake or river and causes unreasonable harm. NOTE: This is almost the same as Correlative rights but there is NO distinction between on-tract and off-tract. McNamara v. City of Rittman (Ohio2005): City bought land near Plaintiffs house and drilled three wells that lowered water table and caused water shortages and lower water quality. 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, the way to decide is to view the governmental entity as a private party, and if the plaintiff would win against the governmental entity, then it is a taking. The City was not using the water but instead dewatering the ground to put in a sewer line. Because this interferes with McNamaras water and is not a beneficial use, the City loses and this is a taking.
Prior Appropriation
A right to groundwater under prior appropriation is limited by the following restrictions:

1. Diverting a specific quantity of water at a specific point 2. Putting the water to beneficial use 3. Only water that has not been appropriated by someone else. Appropriated groundwater may be transferred as long as no harm is suffered AND when there is a conflict between water users, priority (first in time, first in right) is the determining factor. Prior appropriation works really well in very sustainable, high recharge, surface water areas, BUT the system breaks down when groundwater has slow recharge or no recharge.
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. Harloff v. City of Sarasota (Florida1991): Harloff applies for a consumptive use permit and is approved but for a lesser
amount by the Water Agency. This will force him to alter his farming. Harloffs water comes from the Verna Wellfield, and there has been a substantial lowering of the static water level such that wellfield can no longer meet peak demands. Statute Holds That In Order To Obtain a Permit: 1. Use must be reasonable and beneficial 2. Use must not interfere with any preexisting legal use of water 3. Use must be consistent with the public interest. The expert found that proposed increase would cause an additional drawdown of 1.7 feet of water and seriously impact the productivity of the wellfield. Court held that Agencys denial of full amount requested was valid for a combination of reasons. City had permit first, and Floridas requirements are that use must be reasonable and beneficial BUT ALSO that use must not interfere with any preexisting water rights, which establishes some element of prior appropriation in addition to the reasonable and beneficial use element. 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.
Legislative Regulation and Groundwater Takings Issues
Bamford v. Upper Republican Natural Resources District (Nebraska1994): 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. District ordered Bamford to cease withdrawing groundwater from nine wells for irrigation use, and Bamford claimed it was a regulatory taking. The court sees this as a correlative rights state and a correlative rights issue. Court holds that in a control area the right to use water is not absolute. It is a correlative right and when there is not enough for all users, the state has a right to regulate the use. Furthermore, under correlative rights (and comparably under riparian rights), the user does not own the water; he just has a right to use the water. Background Principles of Common Law Under common law of correlative rights, because there is not a surplus of water, one landowner could bring an action to have it proportioned. Therefore, when govt. proportions water in control areas under correlative rights, it is not a taking because a nonstate actor could ask for this same apportionment. Legislature has power to determine what portions are available for correlative appropriation and what amount is reasonable. In a correlative right state, water is not part of your property, just the right to water. ONLY a taking if: 1. There is a total wipeout of all value 2. The water is part of property (part of the bundle), and not merely a right. Therefore when government proportions the water in control areas in a correlative rights state, it is not a taking because there is no property being taken. Notes on Groundwater Takings (WILL BE ON EXAM): Takings in Rule of Capture State (and Possibly American Reasonable Use): Under rule of capture, if the government is the users neighbor, it can dig a deeper well and pump all the water it wants. So there would be no Physical taking. BUT if the government passed a regulation that limits the amount a user can get, then it would be a taking. It would be a Regulatory taking, because the person who can capture water has a property right to that water. Takings in Correlative, Prior Appropriation, or Restatement State: In these states, a taking could be physical, but in most cases it too will be based on a regulatory infringement. [Wipeout Rule (Lucas v. South Carolina)] A change in law through regulation (statute or some government action) can constitute a Regulatory Taking.
Because water in these systems is not a property but a right, it will only constitute a taking if infringing upon the right causes a total wipeout of ALL value. Governments Defenses to Taking Claim: If regulation merely encompasses the background principles of common law, it will be a defense to a takings claim. Ie. In correlative rights, a neighbor may ask for an area to be apportioned amongst users when there is no surplus, so the government may ask/do it as well.
Groundwater / Surface Water Interconnections
States should focus more on integrating the management of surface water and groundwater.
Groundwater is the source of almost 40% of the streamflow in the entire country. It is not necessarily that the problem was ignored up to this point, although that may be part of it. Really it is due to the fact that groundwater can be very hard to analyze and understand. Little or no scientific information available about the connections between groundwater and surfacewater. Little willingness on part of the government to spend money and get the information. No way to systematically model the movement of water in aquifers in relation to streamflow (until high-speed computers came around). No large-scale groundwater extraction until the middle of the 20th Century. City of Albuquerque v. Reynolds (New Mexico1962): City applied for groundwater permit, but this is also in the Rio Grande River water basin, so the groundwater is also surfacewater. The river is completely appropriated, and a user cannot get a permit where it would impair existing water rights. State Engineer refused to grant permit because it would interfere with Rio Grande River and its appropriators. This is a prior appropriation system, so the State held that if underground waters in question cannot be taken without impairment to the rights of river appropriators, even if the underground waters are not appropriated, the permit will not be granted because it would impair existing rights to the surface water user. Here there were two separate statutes, one for groundwater and one for surfacewater. Each had its own appropriation scheme. The surfacewater appropriators argued that if someone could appropriate groundwater in this basin, it would be like skipping all of them in line. 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. General Note on Groundwater / Surfacewater Interference in Situations Like This The law on groundwater surfacewater interaction is not settled. Riparian GW/SW Conflict In a riparian jurisdiction, the conflicts are almost always resolved in favor of surfacewater. Prior Appropriation GW/SW Conflict In a prior appropriation jurisdiction, the conflicts are almost always going to be resolved in favor of the senior appropriator. 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, BUT while this is sensible, it is not always followed. AZ does prior appropriation for surfacewater and American Reasonable Use for groundwater. Collier v. Arizona Dept. of Water Resources: Collier applied for surfacewater that was opposed by ranchers. Court ruled for ranchers but said if Collier wanted to pump the same amount from beneath the land, he could do that even though it would reduce the flow of the creek. 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.
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. Interference is a temporary problem that occurs during pumping but that does not lower the water level of the aquifer. Externality Problem BUT it can result in lower the cone of depression so that smaller wells can no longer reach water. Without some kind of limit, people will pump more for themselves, thus lowering the cone of depression, to the detriment of society. Ideally the externalities would be internalized in terms of both costs and benefits. Prather v. Eisenmann (Nebraska1978): Plaintiffs are angry with Ds because Ds put in a large well that dried up Ps well. Ps are within the cone of depression created by Ds well.
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. SO Plaintiffs entitled to damages equal to necessary costs of providing an alternative method of water supply (cost of lowering plaintiffs wells). 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. NOTE: Rule in Michigan for Groundwater Something between Correlative Rights and Restatement 858 Reasonable Use. Reasonable Use/Sharing/Correlative Rights; Off-Tract use disfavored, but not as strictly disfavored as in pure correlative rights. I.e. an off-tract use will not automatically lose against an on-tract use.
Michigan Citizens for Water Conservation v. Nestle, Inc. (Michigan of Appeals2005)

Background
Nestle as Defendant Nestle leased property from the Bollmans that was over an aquifer full of groundwater. Nestle did not buy the property outright. They just leased it in order begin pumping from the artesian well below. In addition to leasing the Bollmans land to pump water from the groundwater below, Nestle also began taking steps to construct a bottling plant nearby. The reason that Nestle picked this location is because the Federal Food, Drug & Cosmetic Act sets requirements for what can be marketed as spring water. Spring water is marketed differently than purified water, and it is harder to meet the requirements for spring water. Bottling companies have found that consumers prefer to buy a product called spring water, rather than purified water. To be classified as spring water, the FDA requires that the water be connected to a spring in some way. The groundwater under the Bollmans land eventually runs into a spring, if it isnt captured first. So because it is connected to a spring, Nestle can capture it and call it spring water. Plaintiffs Plaintiffs are a group of riparians that banded together to form a nonprofit to litigate the case. Plaintiffs are riparians to Osprey Lake, a man-made lake that is formed by damming the Dead Stream. Plaintiffs claimed use is for aesthetics and recreation. Facts Nestle drills 4 wells and wants to pump 400 GPM. This is not a totally exorbitant amount of water; its about as much as a small village would use. 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. It does not have anything to do with reasonable use or amount pumped. Nestle Off-Tract Use Nestle pumps the water at Sanctuary Springs, but does not bottle it at Sanctuary Springs. They pipe the water off-tract to a manufacturing plant about 12 Miles away. Nestles Use Plaintiffs experts testified that Nestles 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. The trial court agreed with this finding. NOTE: Trial court said that 24% was unreasonable. Is 24% a new standard for what is unreasonable in Michigan? Furthermore, the court found that when Nestle pumped 400 GPM, 375 GPM came directly from the stream. Claims Plaintiff claims that Nestles use is harming that and that it is unreasonable. They ask the court for an injunction. Trial Court Ruling The trial court concludes that Nestles unreasonable use warranted a full injunction, and the court ordered Nestle to terminate all withdrawals from Sanctuary Springs. 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 Plaintiffs right to quality or flow was a violation.
NOTE: This was a hybrid rule of the trial courts own creation. 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. Appeal Nestle appeals the trial courts ruling. The trial court must find some way to adjudicate the surfacewater/groundwater dispute that is consistent with Michigan Water Law. 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. Appeal Courts Finding The appeals court upheld the trial courts finding that Nestles pumping of 400 GPM was unreasonable. BUT they did not accept the trial courts hybrid rule or its finding according to that rule that any groundwater pumping by Nestle that interfered with Plaintiffs Riparian rights was per se unreasonable. Appellate Courts Method for Resolution The appellate court said that when surface water and groundwater rights conflict, they should be analyzed side by side under the prevailing water law doctrine. SO here, that means a Reasonable Use Balancing Test because Michigan is a riparian reasonable use state. NOTE: If this were prior appropriation, as in Albuquerque v. Reynolds, the court would have allocated water to the uses according to the seniority of the uses place in line. The Analysis Step by Step In order to analyze a GW/SW conflict, 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. Initial Knock-Out Comparison If one of these factors heavily weights in favor of one party, then it could resolve the conflict outright. 1. Determine whether both parties are riparians. They are 2. Ensure that the uses of the parties are one of the reasonable uses They are 3. Determine whether uses are on-tract or off-tract. Plaintiffs are on-tract, but Nestle is off-tract. On-tract use gets preferential treatment. BUT off-tract use is not necessarily barred per se, but it will be heavily disfavored. 4. Natural versus Artificial Uses Preference natural (domestic uses) over artificial uses. Here, both uses are artificial. Reasonable Use Weighing of the Factors Since none of the first four comparisons weighed conclusively in favor of one party, the court must do a reasonable use balancing test. 1. Purpose of use Both parties uses are artificial Nestle for bottling Plaintiffs for recreation 2. Sustainability of Use to the Location Plaintiffs use of aesthetics and recreation are compatible Nestles use is not necessarily compatible. It takes a lot of water from the stream, and Nestle could find other places from which to take water and call it spring water. 3. Extent and Amount of Harm Nestle does do quite a bit of harm 4. Benefits of the Use Plaintiffs use of aesthetics and recreation benefits the community BUT Nestles creation of jobs and boosting of the economy also does a great deal of good. 5. Necessity of the Amount and Manner of Use Nestle needs lots of water Plaintiffs need some water 6. Any other Factor that may bear on reasonableness Courts Conclusion The case is remanded to determine what use would be reasonable, BUT the court did hold that Nestles taking 400 GPM resulting in a 24% reduction in stream flow was unreasonable. SO when all else is equal, its helpful to know that a 24% reduction is considered unreasonable. When the case was remanded, the parties chose not to litigate again and instead settled that 250 GPM was reasonable with some variance depending on the season. Takeaway From Case The court basically used Halls cheat sheet to perform reasonable use balancing test. The law seeks to ensure fair participation in the use of the water for the greatest number of users. The law will only protect a use that is itself reasonable The law will not redress ever harm, no matter how small, but it will redress unreasonable harms.
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, waters subject to ebb and flow of the tide or used (or could have been used) as an avenue of commerce U.S. Corps of Engineers determination (has regulated proactively), only naturally navigable waters
Relevant Cases Utah v. U.S.: Phllips Petroleum Co. v. Mississippi U.S. v. Willow Run power co; Kaiser Aetna v. U.S.
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 - 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, often for recreation and/or fishing
Varies by state - Michigan uses floating log test, other states use recreational boating
Bott v. Michigan DNR
Public Trust Protects 3 Rights
1. Right of Navigation Historically, navigable waterways were absolutely necessary for trade and commerce. AND because
of the Commerce Clause, the government has an established right to hold them in trust for the benefit of the people. But in order to establish that a waterway was held in trust, it must first be shown that it is in fact navigable. There are different tests for showing navigability, and each has different legal significance. Federal Navigability Test In order to meet the Federal Navigability Test, a body of water must satisfy at least one of 2 requirements. The Test: 1. 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. NOTE: The authority for the Federal Navigation Servitude is founded in the Commerce Clause, BUT this does not require that a body of water actually span between states. As long as a commercial vessel can operate on it, even if it is fully confined within the state, this test is passed. 2. Subject to Ebb and Flow of the Tide (Tidal for Title) If a body of water is navigable in fact, it may still pass the Federal Navigability Test if it is subject to the ebb and flow of the tide. If Test Met, then 2 Legal Consequences 1. Bottom Lands for State State owns bottom lands below the water. 2. Federal Navigation Servitude Establishes Federal Navigation Servitude, which trumps any private rights vested under State Law (Riparian Rights, Prior Appropriation, Etc) and empowers the government to hold the surface water open for navigation. State Navigability Test Each state has adopted its own test for navigability in addition to the Federal Navigability Test. If a body of water passes the State Navigability Test 1. Public is allowed access to the body of water for recreation, BUT Riparians still own bottomlands, and no ones rights are extinguished. 2. There is overlay between the private partys right to water and bottomlands and the publics interest in access and recreation.
Generally, the State Navigability Test covers a lot more bodies of water than the Federal Navigability Test. BUT If a body of water is covered by one, it will not prohibit it from being covered by the other as well. 2. Recreational Access Only in the past 100 years or so have the courts recognized a recreational right. 3. Environmental Protection Only in the past 30 years or so have the courts recognized public rights to environmental quality and ecological health.
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.
The Federal Government holds the navigable waters and the lands beneath them in trust for future states, and the Federal Government shall vest title to those waters to the states when they are admitted to the union. THUS a State has title for those waters and the lands beneath them that were navigable at the time of statehood. Equal Footing Doctrine When a state enters the union, it will enter with the same rights as the original 13 states. One of these rights is the ownership of the bottomlands of navigable waterways. Illinois Central Railroad Co v. Illinois (1982): State holds title to the lands under the navigable waters. But the states title to these waters is different from title to regular land. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing and other activities free from obstruction or interference by private parties. SO the state is very limited in how it can dispose of this title. Basically, 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, but it is still unclear if they can divest themselves permanently. Utah v. United States (SC1971): Dispute between the United States and Utah as to the shore-lands around the Great Salt Lake. Utah claims that the waters were navigable at the time of statehood. Because these waters were navigable at the time of statehood, Utah owns the land below the waterways, and the Federal Navigation Servitude is also applied, which gives the Federal government the navigation servitude to ensure that waterways are open for commerce. NOTE: It does not matter that the Great Salt Lake is not navigable for the purposes of interstate commerce. As long as they are navigable for the purposes of commerce in general, the publics right to the water is established. Phillips Petroleum Co. v. Mississippi (SC1988): The issues is whether Mississippi, when it entered the union in 1817, took title to the waters that were influenced by the tide running in the Gulf of Mexico, BUT the waters were not navigable in fact. These waters did not meet the test for navigable in fact, BUT they are influenced by the ebb and flow of the tide. Therefore the state holds title to the bottom land as trustee.
Boundaries, Bed Ownership, 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, it may still change because of runoff, precipitation, and other factors. When the shoreline can change, it brings up the question of where the dividing line is between the bottom lands that the state has title to and the landowners shore. Common Law Rule If the shoreline changes slowly or imperceptibly, then the boundary line moves. So if the shore gets bigger, the landowners land gets bigger. Exception Landowner cannot create his own accretion. A hurricane may change shorelines, but the Army corp will restore them. California Rule In a dispute between the landowner and the state: land along the tidelands and navigable rivers that accretes by artificial means, such as dredging and construction of dams and levees does not go to the property owner. 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. If a riparian owns land on either side of the river, he owns all the bed. If he owns only land on one side, he owns half the bed. Lakes and Ponds Pie division.
The Federal Navigation Servitude
The Federal Government has a servitude over navigable waters that restricts otherwise compensable riparian rights.
When used in clear pursuit of public navigation, the exercise of the navigation servitude is uncontroversial.
Not a Taking The Federal Navigation Servitude permits the Federal Government to displace or destroy state-recognized
property rights, which would ordinarily be compensable as takings of property. Typical disputes arise in the following instances: To promote navigation on a navigable river, the govt. permanently maintains the rivers 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, damaging a riparian on that tributary. As part of a navigation project, the govt. condemns riparian land above the high water mark that is owned by a power company. Admittedly compensation is due for the land, 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. Willow River Power Co (SC1945): Power Co. owned dam on Willow River (non-navigable tributary of navigable St. Croix River) which ran parallel and from which it was separated by a narrow neck of land. US govt. raises the level of the St. Croix river to 3 feet above the high water mark, thus Power Co. generates less power. Power Co sues claiming a taking for land AND for a state created property right in the flow of the St. Croix river as a power head. There is no dispute as to compensation for the land because Federal Navigation Servitude only extends to the high water mark. BUT there is a dispute as to whether the Power Co has a compensable property right to the flow of the St. Croix River. If federally navigable water body and federal govt. does something to the water body that furthers navigation (or public purpose) - don't need to know anything else - doesn't matter if riparian right would otherwise be protected against takings. Federal govt. has navigational servitude over all federally navigable waters. AND the Federal navigability servitude to federally navigable waters ALSO can trump the riparian rights on non-navigable tributaries So because Federal govt. is protecting the interest of navigation, it is protected against a takings claim even for something that affected a riparians rights upstream and in a non-navigable tributary.
Public Rights for Recreational Access and Use

FEDERAL COMMERCE CLAUSE VERSUS NAVIGABILITY FOR TITLE Kaiser Aetna v. United States (SC1979): At the outset, the pond was not navigable. Then Kaiser leased 6,000 acres from a private owner, which included the Kuapa Pond, for subdivision development. The pond was contiguous to the bay, which is a navigable waterway of the U.S., but it was separated by a barrier beach. The pond was turned into a marina, 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 marina is not subject to the Federal Navigation Servitude for the purposes of improvement for navigation, and an attempt to create public access to the pond goes beyond ordinary Commerce Clause regulation and would amount to a taking. SO Congress could regulate the marina under the Commerce Clause to further navigation or commerce and grant public access, BUT it would have to compensate Kaiser. There is no question that the govt. can regulate and develop this; 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, in which case they would not have to pay a takings. 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; thus it is not navigable for the purposes of the servitude.
STATE LAW NAVIGABILITY Single most important thing to keep in mind is that in almost every state, the test for state law navigability is far more broad than the Federal Navigability Test.
Thus there are many water bodies that are navigable under state law that are not navigable under Federal Navigation Servitude. Bott v. Michigan Department of Natural Resources (Michigan1982): Plaintiff owns 600 acres which includes a lake. There is no inlet, but there is an outlet to Big Chub Lake. There is a factual issue as to whether the outlet is actually navigable. Whether it is navigable will decide whether individual on Big Chub Lake can traverse the outlet to Linton Lake. Should recreational access determine navigability? If not, what does determine navigability for purposes of public access in Michigan? Recreational Boating Test Rejected Under this test, a body of water is navigable if it can be used to float a canoe down. The court rejects this test for several reasons. Navigability test should turn on commerce, and recreational boating is not commerce. Change in the law here would disrupt norms and property expectations, so it is better to leave this to the legislature if they want to change it. Under recreational boating, this would constitute a large scale taking. Log Flotation Test The court instead adopts the log flotation test, which is much more restrictive. For the purposes of recreational boating test, a canoe can be paddled upstream and through very shallow water and the water body will pass. BUT for log floating test, the log must be able to travel down the water body by itself. The inlet fails the log floating test, so it is not open for public access. Dead End Rule Exception Even if there is navigable access (by log floating test), the dead end lake rule says that only littoral owners of small dead end lakes have the right to use the lake.
Public, Private, 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, yachtclubs, lake-front hotels, etc? The smaller the lake, the bigger the problem. Thompson v. Enz (Michigan1967): Developer purchases a large piece of land. There are several littoral lots with direct access to Gun Lake and several back lots. The developer wants to build channels to the back lots so that water will flow back to them. This would create an artificial waterway, and artificial waterways do not get riparian rights. BUT as a practical matter, the back lots would get access to Gun Lake, which is what they actually want here. 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. 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. Back lots in the subdivision will not carry riparian rights because they front on canals, which are artificial bodies. BUT they will be treated as if receiving an easement to access the Lake. Giving the back lots the easement requires a remand to the lower court if the riparians want to challenge it. 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 this is an issue the court probably does not want to try. BUT in the end, there was no need for the remand trial because the Riparian Plaintiffs never alleged any harm in the first place, so there is no need to do a reasonableness test. NOTE: The riparians should have argued that giving the developed owners rights will allow them to boat, and it will infringe upon the riparians existing right to boat because the lake supply cannot support that many more boats. There are no public rights at issue here. This is purely a dispute between riparians. This case should really be in the competing riparians section of the textbook.
THE PUBLIC TRUST DOCTRINE The Public Trust The public trust refers to the state holding property in trust for the benefit of its citizens. The doctrine was created to protect a persons right to participate in commerce through navigation, but it has expanded to recognize recreation and environmental protection as well. Northwest Ordinance was the first major document in the United States to really recognize and solidify what the public trust doctrine. The law of public trust is founded more in ideology than in actual legal concepts, similar to the Federal Navigation Servitude.
But the difference is that the Federal Navigation Servitude derives its power from Commerce Clause, but the Public Trust on the whole is less clearly derived. Outside of California, it has not gained much traction in Western States, but it has gained footing in Eastern States. Has not been that disruptive in Eastern States because Riparian system requires a reasonable balancing test anyway. 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. Trustee is very limited in how it can divest itself (sell) the resource. Trustee cannot use the public trust resources freely; it can only use them insofar as it does not interfere with publics ability to use it. Beneficiary is not solely the current public but the future public as well. States Role The states role is not about protecting, and its not about maintaining the resource and keeping it open for public access. 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. At times, this does mean ensuring the land is open for public access BUT at other times, this means leasing land permits to allow private companies to drill on the land. SO the public trust doctrine does not always equate with environmental protection and conservation. Jus Publicum and Just Privatum Jus Publicum are the rights vested in the sovereign to be exercised in service of the public trust. Just Privatum are those lands and rights held by individuals. High Water Mark and Low Water Mark This part of the public trust originates with the law of the sea. The state has the power to determine the high water mark. In Michigan in the context of the Great Lakes, the high water mark is the highest area that the water ordinarily reaches with the natural fluctuations of the lake. Specifically, the line between upland and bottomland that persists through successive changes in water levels, 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. Glass v. Goeckel (Michigan2005): Joan Glass is a 70 year-old woman who likes to walk along the shore of Lake Huron in front of Goeckels house. Goeckels claim that this is a trespass, and they begin to put sticks and logs on the beach in order to block Glasss path. The Goeckels are private landowners with title to their property, BUT because Lake Huron is navigable, the bottomlands belong to the state. SO the question is (1) at what point do the bottomlands stop and the private lands begin, 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. This case shows that the public right that the public trust protects is a combination of USE and RESOURCE. It is not just about protecting the resource but about protecting the publics right to use the resource in a certain way. Because the state usually cannot divest itself of the public trust or eliminate its title, every littoral property on the lake is subject to the public rights attached to the lake. But where does the private land end and the states 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, 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. This means that when the water is lower, Goeckel has a little more land, and when it is higher, he has a little less land. Glass claims that the public trust extends further than just the waters edge. Glass says it extends up to the high water mark. The Supreme Court decides that the land does extend all the way up to the high water mark, BUT it is not necessarily owned by the state. SO there is no strict division between land below high water mark and waters edge in terms of ownership. Goeckels own the land below the high water mark up to the waters edge, BUT the state holds that very same land in public trust. SO Goeckels own the land subject to states title to the land as trustee. In other words, Goeckels own SUBJECT TO the public trust. Court also finds that public trust doctrine includes the right to walk along the beach up to the high water mark.
Before this case, only navigation, fishing, and hunting were protected as public rights. BUT why would walking along the beach fit into those kinds of rights. Court reasoned/assumed that walking along the lakeshore was protected because the in order to hunt or fish or boat, a person MUST walk along the lakeshore. Finally, the public trust doctrine does not permit every use of trust lands and waters. It protects only limited public rights, does not create unlimited public right to access. Does not serve to justify trespass on private property. NOTE This case leaves a lot of questions unanswered as to what types of activities will be allowed under public trust doctrine. The Nestle case made clear how to adjudicate an issue, BUT this case only adjudicates the dispute when the issue is high water mark or walking on beach. 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. Rather the GLSA established the scope of regulatory authority that the legislature exercises pursuant to the Public trust doctrine.
THE NEW PUBLIC RIGHTS AND THE OLD PRIVATE RIGHTS: ENVIRONMENTAL PROTECTION Sax on Public Trust Rights It is NOT black letter law, but Sax argues that public trust rights are superior to riparian rights. Basically saying that public rights to water are superior to private rights to water. This has very little support in modern case law, AND it is not black letter law. Public Trust and Incompatible Uses The problem of incompatible instream and offstream usese is presented in the case below, 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. This case has not been followed in other western states. It has ONLY been done in California because California still recognizes some riparian rights. 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. Then LA Power Company diverted 4 to 5 streams that feed the lake. The water that would have gone to Mono Lake is instead going to L.A.s water needs. Power Companys use of water dropped the lake level significantly. Mono Lake used to have islands where birds nested, but they cant 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. National Audubon Society, a wildlife foundation, sued the Power Company in federal court. 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. 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. Fundamental question is when the agency gave permit to the Power Company, 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), and the rights protected under it had expanded to possible environmental issues. Thus the clash with private rights is becoming inevitable. BUT while Mono Lake is a navigable water, the tributaries that feed into it, which the Power Company is diverting, are not. Court holds that the Public Trust protects navigable waters from harm caused by diversion of nonnavigable tributaries. Black Letter Law (Hall) Mono Lake is navigable; diversions are from its non-navigable tributaries that would eventually flow into Mono Lake, SO the streams and tributaries are subject to the public trust as well. Powers of the State So the state, as administer of the public trust, can revoke previously granted rights or enforce the trust against lands long thought to be free of the trust. State agencies must consider the interests to the Public Trust when considering diversions and seek to minimize harm to those interests. Once the state has approved an appropriation, the Public Trust imposes a duty of continuing supervision over the appropriated water. In exercising its sovereign power to allocate water resources in the public interest, the
state is not confined by past allocation decisions which may be incorrect in light of current knowledge or inconsistent with current needs. NOTE Most states have expressly REJECTED the California approach of extending the public trust doctrine to encompass non-navigable waters and environmental protection. Only 2 other states have followed the California example, Hawaii and Vermont. In re Water Use Permit Applications for the Waiahole Ditch (Hawaii): From 1915 to 1995, when sugar cultivation was terminated, 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. The leeward side now wants to retain the water in order to keep that side cultivated for future use. The water was originally appropriated for agricultural use pertaining to sugar cane, but it is no longer needed for that, so the question is whether they can hold on to the water for future use. The court holds that the state has power to regulate this water under the Public Trust. This is a huge expansion of public trust, even more than in Mono Lake Case because it does not matter whether the water is navigable or not. It can be subject to the public trust. State will weight public and private uses on a case by case basis, according to any appropriate standards provided by law. The uses consistent with the public trust are the default position, SO any private interest gets a higher level or scrutiny. This also means that when an Agency gives a permit to a private use, they will not necessarily be deferred to.
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. Congressional Apportionment 2. Interstate Compacts 3. Treaties 4. Equitable Apportionment
Congressional Apportionment Congress derives its power here from Article 1 8 of the ConstitutionThe Commerce Clause. The supremacy clause binds the states to Congress actions. Water is an interstate resource, so Commerce Clause can cover it. If 2 States are arguing over a resource, usually a river, it is like a riparian dispute on a macro scale. Congress could just pass a law that says each state gets 50% of the water. Congress could also split the water proportionally by the size of each landmass. Bottom line, Congress could pass a law that divides the water body, BUT this rarely happens. It has only happened once or twice in the history of the country. Requires the House and Senate to agree, which makes it even more difficult and rare. Interstate Compacts The disputing states can agree to enter an agreement to split up the water. States power to enter into contract in Article 1 of Constitution. Congressional approval is required for formation, BUT approval may come before or after the signing of the compact, and it may be express or implied. Dormant Commerce Clause can knock out agreements. Once ratified, however, these agreements have the force of Federal Law. Treaties When the dispute is between countries rather than states, the parties can also enter into treaties Equitable Apportionment The supreme court has original jurisdiction over interstate disputes, so when a dispute cannot be resolved between two states, the SC can step in and adjudicate. Usually, the court appoints a special master to handle these issues and affirm his findings. The SC hates these cases and will only take cases of serious magnitude. This is a problem because if the SC does not take the case, it cannot be litigated in any lower court. The court tries its best to divide the water in the most fair and equitable way. As a practical matter, the court will usually just affirm the status quo. The court will not generally announce any clear legal rules or doctrine. It does not want to create law in this area. Very often the court makes clear that it does not think that bringing these cases to the SC is the best idea, despite the fact that the constitution provides for it. Court will encourage states to enter into compacts.
Congresss Role: Apportionment and Interstate Compacts
Authority of Congress Congress derives its power here from Article 1 8 of the ConstitutionThe Commerce Clause. The
supremacy clause binds the states to Congress actions. Water is an interstate resource, so Commerce Clause can cover it. If 2 States are arguing over a resource, usually a river, it is like a riparian dispute on a macro scale. Congress could just pass a law that says each state gets 50% of the water. Congress could also split the water proportionally by the size of each landmass. Bottom line, Congress could pass a law that divides the water body, BUT this rarely happens. It has only happened once or twice in the history of the country. Requires the House and Senate to agree, which makes it even more difficult and rare. 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. 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.
Congress consent may come before or after the states sign the compact, and it may be express or implied. One these compacts are ratified, they have the full force of federal law. 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. The Delaware Basin Compact: Provides water for NYC and Philadelphia. Increasing demand for the water led to conflicts. The states tried to negotiate a compact but failed. SC made an apportionment in 1931 and 1954. Dissatisfied with the Court ordered solution, they approved a compact in 1961 to manages the basin as a regional resource. Representative from each of the four basin states. Commissioner appointed by the president. Each has a vote. Simple majority controls most issues. The administrative body controls every aspect of management. BUT their power is limited by the 1954 Supreme Court decree. Parties to the Compact all follow riparian law. NYC, the largest user, is not riparian, but it still gets water because of the compact. Would not work for Great Lakes because It is a hands-on, intensive approach that is only really justified if there is scarcity or litigation between the 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. Colorado River: Good case to study for interstate apportionment because it provides a lot of law. Colorado River is not a huge river, but it provides a major water source for about 7 states, including California, Arizona, and Colorado. The water is over-allocated and has been for a long time. River has the most demand in the country. 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, BUT it is probably secondary to the higher levels of law that govern the interstate management. The Colorado River Compact: Federally approved agreement between the states to divide the river between the upper and lower basins. Lee Ferry is dividing mark at Utah/Arizona border. There was 90% of water left after treaty with Mexico, so the water is divided between Upper and Lower Basin States. Upper Basin gets 45% and guarantees a flow of 45% to the Lower Basin states. Specific distribution details for each state. Treaties Theoretically, the river reaches to the Gulf of California. Mexico should get something. The obvious way to achieve this is through a treaty. Mexico gets about 10% of the flow. Supreme Court Decisions Arizona brought suit arising out of a dispute between some of the Lower Basin states. SC turned away Arizonas suit for a while, saying it wasnt ripe for decision. Then in 1963 the SC adjudicated a decision. Arizona got what it wanted BUT the decision also set aside some water for Federal Lands and Reserved Indian Rights. Congressional Apportionment Congress passed the Boulder Dam Act that authorized the building of some dams. Congress didnt so much as allocate the water as it did provide money for the building of HUGE dam projects to establish infrastructure.
The Supreme Court and Equitable Apportionment

between two states, the SC can step in and adjudicate.
Supreme Courts Authority SC has original jurisdiction over interstate disputes, so when a dispute cannot be resolved
The Law Applied SC applies Equitable Apportionment, which is at its core a practical method of dispute resolution that
seek to do what the name suggestsallocate the resource in some fair and equitable way. No Clear Legal Doctrine The SC makes a fact specific inquiry and combines the status quo with general principles of property law. It is more like reasonable use than apportionment because the court does not want to apportion the rights to water. The court will not generally announce any clear legal rules or doctrine. It does not want to create law in this area. Very often the court makes clear that it does not think that bringing these cases to the SC is the best idea, despite the fact that the constitution provides for it. Court will encourage states to enter into compacts. Most Equitable Apportionment decrees contain a reopener provision allowing the parties to apply for further relief as may be necessary or appropriate. 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. Usually, the court appoints a special master to handle these issues and affirm his findings. The SC hates these cases and will only take cases of serious magnitude. This is a problem because if the SC does not take the case, it cannot be litigated in any lower court. Colorado v. New Mexico (I) (SC1982): There is a water dispute between Colorado and New Mexico. Both states are prior appropriation states. The court says that since both states follow prior appropriation, priority is a factor. BUT it is NOT conclusive. In an interstate water dispute between two states that use prior appropriation system, in equitable apportionment, priority is NOT the sole criterion. The court will also consider conservation measures available to both sides as well as the balance of harm and benefit that might result. 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. Why Not a Choice of Law Problem It seems like since the states both have the same law, the court could just choose to use that law. There are several reasons the court will not use the prevailing law in this case. Because its prior appropriation, New Mexico would automatically win. BUT the deeper issue is that each state has Sovereignty. If it were between two private parties, the court could use the legal doctrine of the states, assuming they had the same law. BUT when States are parties there are sovereignty issues, which give them special recognition. The court cannot force them to give up authority over a natural resource just because the states laws for private individuals are the same. Colorado v. New Mexico (II) (SC1984): Another dispute between Colorado and New Mexico. New Mexico is the downstream state and they are the ones using the water. Colorado is about to start using this water. Issue is whether Colorado can get some of this water that it hasn't been using. The Court dismisses the action altogether because Colorado failed to show by clear and convincing evidence that it needed the diversion it asked for. This is one of the few times the special master gets overturned. OConnor wrote this majority. She wants to take prior appropriation very seriously. BUT she still recognizes that equitable apportionment is not pure prior appropriation. She takes into account Benefit, Harms, and Efficiency. ALSO, she says that Colorado must show that they have NO other way to get water. In pure prior appropriation, they would just attack the junior user. Key Difference Between Prior Appropriation and Equitable Apportionment When two states are disputing, the junior user can make a case based on his needs and not simply by trying to upset the seniors vested right by arguing that the senior is wasting water or being inefficient.
The reason for this is that the court does not want to rely on one partys trumped up claims against another. It would rather see evidence of a partys own need than here one party accuse another with mostly speculation. Conventional wisdom is USE IT OR LOSE IT. BUT NOT B/C of PRIOR APPROPRIATION. It is more because if one party doesnt use it, and the other party needs it, then the other party will get it.
Private Interstate Water Litigation
When conflicts develop among users of interstate water bodies in different states, and the pertinent state governments do not
have an interest or are not willing to negotiate a compact or seek an equitable apportionment, ordinary litigation may resolve the dispute. Bean v. Morris (SC1911): Bean in Montana. Morris in Wyoming. They are both prior appropriators but in different states. Dispute is over Sage Creek, which meanders out of Montana and into Big Horn in Wyoming and then back into Montana. Choice of Law The law in both states is prior appropriation, so there is not really a conflict in the two laws. Because the dispute is between two individual subject to law and not between states with some higher claim to right, the court can just apply prior appropriation. BUT the outcome would be different if a state were to join in the suit. When a PRIVATE interstate water dispute arises between individuals whose states apply different water law, 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.
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. The more difficult question is whether the lake that contains the water is an article of commerce. The SC pretty clearly says that the way it is naturally (the way God left it) is a natural resource, but once the resource is captured, altered, or extracted it becomes an article or good subject to our commerce laws. Dormant Commerce Clause SC has held that commerce clause, even though not explicit in constitution, gives Congress and Fed the power to regulate the states. Within this holding is the IMPLICIT understanding that the states, in addition to being affirmatively regulated under the commerce clause, are also negatively prohibited from doing anything that interferes with interstate commerce. So its like the commerce clause in it natural state is being invoked to impose regulation by the federal government. BUT if the States do something that interferes with Feds power to regulate commerce, then the commerce clauses implied purpose of delegating all commerce to Fed will prohibit this even without affirmative regulation from the Fed govt. SO if a state passes some regulation that interferes with Feds regulation of commerce, even if not explicitly against an existing regulation, the dormant commerce clause will knock it down. BUT the government can still affirmatively give a state power to pass a regulation that would otherwise interfere with commerce. For example, if California passes some super strict regulation about air pollution that inhibits traffic on interstate, then the dormant commerce clause will hold it impermissible. If Congress wants to allow California to pass this regulation, then it can affirmatively pass some legislation giving California the authority and exempting it from Dormant Commerce Clause. Sporhase v. Nebraska Ex. Rel. Douglas (SC1982): Appellant jointly owned contiguous tracts of land in Chase County, Nebraska and Phillips County Colorado. Nebraska statute restricted withdrawal of groundwater from any well in Nebraska intended for use in an adjoining state. Sporhase did not get a permit under the Nebraska withdrawal statute Challenge Presents 3 Questions 1. Whether Groundwater is an Article of Commerce 2. Whether Nebraska Restriction on Interstate Transfer of Groundwater Imposes Impermissible Burden on Commerce 3. Whether Congress has Granted to the State Permission to Engage in Groundwater Regulation that Would Otherwise be Impermissible. Sporhase has wells on his land in Nebraska for groundwater pumping, but he is shipping the water withdrawn to Colorado. He is not intending to divert the water out of state. He is not selling the water. 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.
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. 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. This is a weak argument because the water is being used for agriculture; nonetheless, Nebraska Supreme Court says that it can ban and/or limit water export out of the state. Supreme Courts Holding: Groundwater is an article of commerce. Congress can regulate it as an article of commerce because it is valued and used mostly for agricultural irrigation. Because it is an article of commerce, there are restrictions on the states ability to limit export or trade. BUT a state can still regulate articles of commerce; there is just a test to see if the regulation is permissible. Test for State Regulation of Articles of Commerce Legitimate Local Public Interest and Only Incidental Affect on Commerce. Conservation, protecting diminishing resources of groundwater because they are running out. The ban on export of water is part of a comprehensive regulatory system in Nebraska The court says this is OK. The state is allowed to conserve water, limit use within state, Not discriminating against people in other state because they were allowed use of groundwater if the came to Nebraska; they just could not export it. BUT because the law is facially discriminatory against other states if they do not meet the Reciprocity requirement, it will be subject to strict scrutiny. Reciprocity requirement has NO connection to the public interest; it simply demands that other states share in order to be shared with. The public welfare portion of the statute that limits use in times of extreme need MAY be okay in time of severe shortage. BUT Reciprocity provision is facially discriminatory because it prohibits states based on whether or not they share with Nebraska, which has no connection to legitimate local interest. Notes from Sporhase: Black Letter Groundwater is an article of commerce. States can regulate commerce if there is a legitimate local public interest and it does not unduly burden interstate commerce. Why Nebraska Failed Facially discriminatory AND not narrowly tailored to serve conservation need. When a statute is facially discriminatory, it will almost always be struck down. 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, this would probably not be struck down. 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. The El Paso Litigation: El Paso, Texas takes water from an aquifer it shares with New Mexico. New Mexico is worried the water will become too salienated and passes a ban on sharing water resources. The ban is struck down. 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. Texas argues that the law: 1. 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. Is intrinsically discriminatory against non-citizens. Court says that these are circumstances where states can protect their water from export. 3. Violates the commerce clause because conservation principles were applied to all out of state uses but not all in state uses. THIS is where the court strikes down New Mexicos legislation. It is facially discriminatory and not narrowly tailored enough. Texas and New Mexico eventually reached a settlement.

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Water Law Outline Professor Noah Hall Winter 2012 Page 1 of 51

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

INTRODUCTION TO THE COURSE

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Riparian Rights of Use and Incidents of Riparian Ownership

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20th Century Common Law Reasonable Use

When Reasonable Uses are Incompatible

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Surface Uses on Artificially Created or Enlarged Waters

Maintaining Water Levels and Flows

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Municipal Water Supply in Riparian Jurisdictions

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The Law of Drainage

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Elements of Prior Appropriation

How The System Functions

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General Adjudications and Paper Rights

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Acquiring Appropriative Rights

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Waste and Beneficial Use

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Salvage and Beneficial Use

Wasteful Use as a Constraint on New Appropriation

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PERMIT SYSTEMS AND ADMINISTERED WATER RIGHTS

How Permit Systems Are Administered

Californias system is typical of most administrative water systems. The Process:

The Public Interest Standard

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Basin of Origin as a Test of the Public Interest

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Legal Oversight of Water Transfers

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CONSTITUTIONAL PROTECTION OF EXISTING WATER RIGHTS

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The 5 Doctrines of Groundwater Law

Dispute Resolution Principle

No Connection to Land Required

On-Tract Use Only

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American Reasonable Use