Week 5 Flashcards
No channel + surface =
surface water
Types of water= channel + surface =
watercourse
Channel + underground =
underground river
No channel + underground =
percolating waters
Basis of water rights is ___
state law
Water is similar to oil/gas in that it is ___ but unlike those it is __
fugacious, subject to hydrological cycle
Riparian rights apply when ___
appurtenant to land, land use and surface stream use same package
English natural flow theory
upstream owner can’t divert water in any way that hurts the downstream owner (they get a veto)
Problems with English flow theory
(1) hard to measure amount of water
(2) bilateral monopoly
(3) hard to enforce
____ is the goal of English natural flow
negotiation
American reasonable use theory
consider purpose of use, sustainability, econ/social values, harm, ability to bear loss etc
American law usually finds not reasonable to ____ since it hurts the ___
divert surface water outside of watershed, downstream owner since water not replenished
Evans says that _____ but if ____ then jury decides
natural use trumps artificial, two artificial use
What is a beneficial use of water
productive/econ uses
In Illinois natural uses include ___
drinking/household needs/cattle watering
Statutes favoring ___ sometimes overrode default of Evans
mining/ag/mills
Irrigation is likely a natural use in a ____ but in Evans it is ___
arid area, artificial
Appropriation theory of water rights
1st gets priority whether upstream or downstream
Appropriation theory influenced by ___
mining camp customs
Evans facts
East coast steam mills, abnormal water shortage
Evans implies if only enough water for ___
one to survive upstream gets it all
Evans says the water diversion upstream is ___
little injury to those below + valuable benefit to himsef
Coffin facts
water diverted outside watershed, both want for irrigation
Coffin says that in Colorado the ____ as long as ___
first appropriator can take all of the water in the stream, use is beneficial
In Coffin, the water diversion right is not ____ and lasts as long as ___
pure property right, using the resource
In Coffin, to divert water you must ____ but don’t need to ____
have land, be riparian owner or have land in the same watershed
Conditions in CO that support first appropriator
(1) arid soil + mining require water from a distance
(2) land near water not necessarily worth using it on
(3) scale of use too large to split amongst all riparians
Like _____, it is _____ beneficial use
reasonable use, hard to define
Tulare says that ____ is not beneficial
flooding off gophers
Now appropriation system comes with ____ that is less tolerant of ___ and helps with __
elaborate regulatory scheme, diversion outside watershed, measurement issues
More recently, western states have been amending their water rights to provide for ___
rights for instream users (rafting)
What is common enemy doctrine
diffuse surface water undesirable so each LO absolute right to use self-help to repel inflows of surface water even if causes damaging flooding to other LOs
More recently, common enemy doctrine has been modified to include ___
reasonableness
Higday says the overlying owner’s right to use the groundwater is ___
incidental to the beneficial enjoyment of the land from which it was taken
Higday holding
farmer injunction denied despite unreasonable use
Higday says that the city is required to ___
compensate farmers if lower water table
Higday implies that the city should ___
use eminent domain
