Water Law

William Goldfarb

• Publisher: CRC Press
• Year: 2020
• Print ISBN: 9780873711111
• eBook ISBN: 9781000157512
• Edition: 2
• Topic: Law
• Subtopic: Science & Technology Law
• Index: Law

This revised second edition is essential to everyone involved with water and water resources-complying with the myriad federal, state, and local laws and regulations that govern the use and management of water in our attempts to maintain, clean, usable water. It includes the law of water diversion and distribution; water resources development and protection; water treatment and land use; ocean dumping; oil and hazardous substances cleanup; riparian and non-riparian systems; Eastern permit systems; beneficial use; water codes; prior appropriation; surface and ground water; channel modifications; municipal water supply; irrigation; California Water Management Districts; Bureau of Reclamation; Corps of Engineers; Water Resources Development Act of 1986; SCS, TVA, BPA, NEA, CERCLA, CWA, SDWA, RCRA, and their substantial changes in the last four years; water resources planning and research; public use; ownership of beds and banks; wild and scenic rivers; river corridor and instream flow protection; flood insurance, Section 404 and Section 208; the Supreme Court and water conservation; heat dischargers; quality-based effluent limitations; state ground water programs; pretreatment; funding; enforcement; citizen suits; and many more vital topics.

PART I

The Law of Water Diversion and Distribution

The American legal system is not monolithic. In fact, there are hundreds of major legal systems, if those of the federal government, the 50 states, and the largest cities and counties are included. The law of water diversion and distribution is predominantly state law. These rights to use water are almost invariably declared in state constitutions and statutes, adjudicated by state courts and administrative agencies, and administered by state agencies. Since states are independent sovereigns in the water law field, different states, even neighboring states, often apply contrasting legal principles to a particular water law problem. Consequently, in water law we regularly refer to “majority” or “minority” state rules, depending on the number of states adhering to that rule.

Where water diversion and distribution are concerned, state law generally reigns supreme unless a state oversteps its bounds and violates a right embodied in federal law. For example, rights of irrigators to water developed by federal reclamation projects are governed by federal statutory reclamation law. State law in conflict with this federal law is null and void. Federal claims to reserved water rights are decided under federal law, even though they may actually be adjudicated in state courts. Moreover, because a water right is treated by the law as “property,” under the Fifth Amendment to the United States Constitution no state may “take” a water right for public use without “just compensation” to the rightholder. But these exceptions only prove the rule of state hegemony in matters of diversion and distribution. Indeed, the federal government has always paid extraordinary deference to state water law in these areas.

Chapter 1

LEGAL CLASSIFICATION OF WATER

Over hundreds of years, and without reliable hydrologic data, courts and legislatures have divided the hydrologic system into numerous classes of waters that are subject to different legal rules. The trend is away from this unscientific set of distinctions, but legal change occurs slowly, especially in a field, such as water diversion and distribution law, that is a function of 50 different state legal systems and federal law.

The fundamental legal classifications of water are groundwater and surface water. Nowadays, when enlightened water resource management requires conjunctive use of waters based on the interconnections of groundwater and surface water, this distinction is a particularly harmful one. The following is a brief introduction to the legal classes of groundwater and surface water.

SURFACE WATER CATEGORIES

Diffused Surface Water

Diffused surface water is the uncollected flow from falling rain or melting snow, or is spring water that spreads over the earth’s surface.¹ It follows no defined course or channel and forms no more definite body of water than a bog or marsh. Water loses its character as diffused surface water when it reaches a well-defined channel. In law, diffused surface water is analogized to a wild animal and the “law of capture” is applied to it. “Diffused surface water may be captured by the owner of the land over which it moves, and when captured becomes the property of the landowners.”¹ Unlike water in watercourses, diffused surface water is almost never subject to state permit programs.² The reason for this diffused surface water rule is public policy encouraging agricultural impoundment and use. Most legal problems involving diffused surface water arise when a landowner tries to get rid of it. “Drainage law” is covered in Chapter 8.

Water in Watercourses

The term “watercourse” generally includes all surface waters contained within definite banks. A watercourse may be running water, such as a creek or river, or a body of still or flat water, typically a lake or pond.³ In some states, floodwaters that have become permanently severed from the main current when waters recede are treated as diffused surface water, capturable by the landowner, and not water in a watercourse, subject to public water rights. Other states consider all floodwater as diffused surface water.¹ Courts are also sharply divided on how to classify springs, categorizing them variously as diffused surface water, groundwater, or part of a watercourse depending on the facts of each case and the legal rule applicable in a specific state. The same is true with regard to the legal classification of marshes and swamps. It is possible that the same hydrologic swamp located in three different states would be classified in three different ways and subjected to three different legal rules.

Courts frequently distinguish watercourses from diffused surface waters by declaring that watercourses are characterized by regular flow and defined channels. But in many states, especially in the West, intermittent streams have been held to be watercourses. The “defined channel” test appears to be a more reliable one. Artificial watercourses (impoundments, artificial channels) are governed by different legal rules than natural watercourses. (See Chapter 16).

GROUNDWATER CATEGORIES

It is inaccurate and confusing to distinguish among subflows (underflows) of surface watercourses, underground streams, and percolating groundwater. But courts continue to make these distinctions, and important legal consequences depend on them.

Subflow of Surface Streams

This category refers to the saturated zone directly beneath and supporting a river or lake in direct contact with surface water. Where subflow can be identified, it is considered as part of the watercourse itself.⁴

Underground Streams

An underground stream is defined as water that passes through or under the surface in a definite channel. In water law, a subterranean stream is treated as a surface watercourse. There is a legal presumption against groundwater being an underground stream; that is, a claimant must produce convincing evidence that underground water flows in a definite and known channel, and does not “percolate” as in an aquifer.⁵ This evidence might include surface vegetation along its course, test borings, sounds of the water, geologic data, or interconnections with surface streams.

Percolating Waters

These include all waters that pass through the ground beneath the surface of the earth without a definite channel, and groundwaters that are not shown to be directly connected to surface water. Percolating waters come from precipitation that infiltrates the soil, streamflow from losing streams, irrigation return flow, or artificial recharge. Storage of percolating waters may be in unconfined (watertable) or confined (artesian) aquifers. Rivulets and veins of water within an aquifer are not underground streams but percolating water. In many states, water rights in surface watercourses and underground streams are determined on radically different legal principles than rights in percolating waters.

The state of Colorado makes a further distinction between “tributary” and “nontributary” percolating waters. Groundwater that will eventually reach and become part of a natural stream, either surface or subterranean, is treated as part of that stream for legal purposes (i.e., governed by the rules applied to surface watercourses).⁶

OTHER CATEGORIES

Wastewater

Alternately referred to as “seepage,” “leakage,” or “artificial water,” these are waters that, in the words of a New Mexico statute, are “due to escape, seepage, loss, waste, drainage, or percolation from constructed works, either directly or indirectly, and which depend for their continuance upon the acts of man.” Seepage from reservoirs and irrigation ditches as well as discharges from treatment works are examples of wastewater. Irrigation return flow (“tailwater”) is a particular kind of wastewater that is sometimes subject to different legal rules. The major diversion and distribution law problem involving wastewater is whether it belongs to the person who releases it or a downstream, or groundwater, rightholder.

Foreign Water

This is water that has been imported by a user from one watershed into another.¹ It will be seen in Chapter 7 that interbasin transfers of water have caused many legal problems. Rights to seepage and return flow from foreign water can also be troublesome.

Storage Water

Impoundment of water is becoming increasingly important for irrigation, recreational, hydroelectric, and municipal uses. Legal problems include liability for negligent storage, the question of storage rights versus directflow rights, and the need for environmental impact statements.

Salvage Water

Salvage water is water saved by conservation practices that would otherwise have been lost to seepage or evaporation. Conservation has been impeded in the West by rules that make water saved by conservation subject to use by others. (See Chapters 4 and 23).

Developed Water

Unlike salvage water, which would naturally be part of a watercourse, developed water is “new water” made available by human effort. Drainage into a stream of a mine or wetland are examples of developed water.

Chapter 2

WATER DIVERSION DOCTRINES: THE RIPARIAN SYSTEM

The term “riparian,” used as an adjective, means “of, pertaining to, or situated or dwelling on the bank of a river or other body of water.” ⁷ Thus we speak of riparian homes or riparian lands. Used as a noun it refers to one who owns land on the bank of a natural watercourse. A riparian right is one held by a riparian, and the riparian system (or riparianism) is the legal apparatus for allocating and enforcing riparian diversion rights. Riparianism is the water rights system that is in effect in all states east of the Mississippi River except Mississippi, and in Arkansas, Iowa, and Missouri to the west.⁸ In many of these states, riparianism has been supplemented by permit systems (see Chapter 3). The prior appropriation system prevails in the West (see Chapter 4). However, riparian diversion rights coexist with appropriative rights in those western states that follow the “California Doctrine.”

The key tenet of the riparian doctrine is that only persons owning land on natural watercourses possess riparian rights. There can be no riparian rights in groundwater, diffused surface water, or water in artificial water-bodies.⁹

WHAT IS RIPARIAN LAND?

The riparian system not only restricts water diversion rights to riparian owners, but also restricts the use of diverted water to riparian land. In most riparian states a riparian owner, even if he has not actually been harmed, can obtain a court order enjoining another riparian from using water on his own land (1) not touching the waterbody, or (2) outside the watershed.¹⁰ Other states have softened these place-of-use restrictions by requiring that a riparian suffer tangible harm before being allowed to recover damages or obtain an injunction. Still other states allow a riparian owner to make “reasonable” uses of water on unconnected or trans-watershed lands.¹⁰

There are two legal tests employed to delineate the inland extent of riparian lands. The “source of title” test, adopted in California, limits riparian land to the smallest parcel held in one ownership that, throughout the chain of title, has never been severed from the stream. Thus, from the time of initial government or royal grants, the amount of land possessing riparian rights has diminished each time a tract has been subdivided and sold. Acquisition of adjacent land, although once riparian, does not increase the amount of land benefited by riparian rights.¹¹

A more inclusive definition of the extent of riparian land has been embraced in the Southeast. This test, known as the “unity of title” test, generally holds that riparian land extends to any land held in a single title contiguous to a watercourse. Thus the land subject to riparian uses increases as parcels adjacent to existing riparian tracts are acquired, and decreases as off-stream portions of riparian land are sold. Given the trend toward large agricultural landholdings, application of the unity of title test may result in appreciably expanding the quantity of riparian land.¹¹ As with all aspects of water diversion law, each riparian state’s system must be examined carefully to determine which place-of-use restrictions and definition of riparian land are applicable.

WHICH USES BY A RIPARIAN ARE PERMISSIBLE?

Riparian owners in all states—even prior appropriation states—have the following rights, subject to ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• Purpose and Scope of This Book
• Introduction: Water Law in Context
• References for Introduction
• Part I The Law of Water Diversion and Distribution
• Part II Water Resources Development and Protection
• Part III Nontransformational Uses: Uses That Do Not Change the Waterbody
• Part IV Water Treatment and Land Use
• Part V Mediation of Water Resources Disputes
• Glossary of Acronyms
• Index