Water Rights Flashcards
What makes an owner a Riparian Owner?
Land boarders on a stream or a lake
What is the policy on capturing water on private property in the East?
Follow CL Riparian Rights:
Water cannot be severed or sold, it is attached to land
What is the policy on capturing water on private property in
the West, including the Colorado doctrine?
Statutory Prior Appropriation
• Not attached to the land
Water can be sold like widgets
- Owners entitled to free use without liability based on “first in time, first in right” = First to establish particular beneficial use for water prevails over later user
- Upstream will get priority in drought
- CO Doctrine: Right may lapse if owner fails to use water for significant period
- Requires regulation including a permit system and water court
What is the English rule on ground water?
Absolute right to ground water accessible from your land
What is the Eastern States rule on Ground Water?
Reasonable use, with the exceptions of malice and waste
What are the Western state policies on Ground Water?
In general….
For Tributaries….
For Aquifiers….
• Tributary waters – prior appropriation
• Aquifers: correlative rights
-Shared use where right to withdraw specified amount is divided to each owner based on annual natural recharge of the aquifer
What are the Enlish laws on Surface water?
In general….
Diffusion of surface water….
Could not effect the natural flow
Diffusion:
Common Enemy Rule:
Owners have unqualified right to expel unwanted water; essentially makes each owner responsible for installing their own drainage systems
• Protects interests in free use of land
What is the Eastern states policy for surface water?
In general…
Test for harm from Run-off..
In general: Reasonable use test, liability for damage measured by substantial harm
Run Off: Reasonable Use Rule
• Owner has right to reasonably discharge water unless it substantially harms another’s land;
-Court may award consequential or permanent damages; Similar to nuisance law
- Trend: natural domestic rights take priority over upstream commercial use
- Issue: you can change the: a) quality; b) quantity; c)direction; and d) priority
- Test: Purpose for altering discharge path, Amount added in relation to the other parts of watershed, and Cost of mitigating (for both parties) v. magnitude for potential downstream damage
- Legal privilege – to make reasonable use of land even though the flow of surface waters is altered thereby and causes come harm to others
- Liability – imposed when harmful interference with surface water flow is “unreasonable”
What is the government’s role in the regulation of surface water?
State & Federal
State – generally holds surface water in public trust and may regulate use
Federal – regulates use of navigable waters
Government Regulation of navigable water
What is navigable waters used for?
What does the state own?
What does the fed own?
What do private owners own?
Used for commerce, or could float a log at high tide..
- State holds water in public trust AND owns bed
- Fed owns navigational servitude on bed
- Private owners own dry sand area and vegetation line / ends at MHWL
Clean Water Act
Two situations where a permit is needed.
Wetland policy
- Need a permit to dredge and fill a navigable waterway
- Need permit if a point source of pollution
- Development of wetlands – policy of no net loss
Non-Navigable waters
State owns…..
Private owners own…..
Public use? Three views…
• State holds water in public trust – directly and inseparably connected with navigable water
- Private owners own bed to the middle of the channel
- Public Use? 3 Differing views
- No – constitutes trespassing
*general view because bed is owned by owner* - Yes – public affirmative easement for water;
can’t touch the bed or banks (CO, Minn.) - Yes – public affirmative easement for water and bed up to MHWL (OR, Mont.)
Where surface water forms boundary for privately owned lands
Accretion
- The natural process of cut and fill – boundaries change
- Historical rationale: agrarian society where farmers needed access to surface water
Where surface water forms boundary for privately owned lands
Avulsion
- Sudden change in direction – boundaries do not change
- Could be natural or man-made: Example: earthquake or dam built
- Rationale: erratic and drastic changes
Accretion and Avulsion
Bonnelli Case
70 acres of an owner’s land were lost through accretion –
boundaries change
Hoover dam was then built – avulsion – boundaries don’t change
The land that was re-opened now belongs to state rather than original owner
