Abstract
Water is the most important resource on our planet. We are considered the blue planet. Only three percent of our water is freshwater. Of the three percent, only one percent is accessible for human use. Water makes up 45-75% of our body. Seventy percent of our brains are water, with 80-95% of our blood being water. Clean pure water is important to our overall health and quality of life. Water is the heart of agriculture. The availability of freshwater makes it possible to grow crops and raise livestock. Water use, in turn, is at the heart of heated discussions involving water law and policy. Water is for all users, and even though is it plentiful, there is often not the right quantity or quality in the right place at the right time to meet demand. Moreover, competition among water users, including agriculture, municipalities, industry, recreational users, and conservationists can become volatile. Through autoethnography, this chapter explores water rights laws.
“All the water that will ever be is, right now” – National Geographic, October 1993
Water is the most important resource on our planet. We are considered the blue planet. Only three percent of our water is freshwater. Of the three percent, only one percent is accessible for human use. Forty-five to seventy-five percent of our body is water. Seventy percent of our brain is water, with eighty to ninety-five percent of our blood being water. Clean pure water is important to our overall health and quality of life. Traditionally, the management of water resources has focused on surface water or groundwater as separate ecosystems. Water tends to be regulated based upon the source, depending on the category of perennial, ephemeral, or man-made. More broadly, water law can generally be divided into two substantive areas: rights to use water and restrictions on pollution of water. Water concerns range from a balance in public and private rights to water use. The right of an individual land owner to rights of owners downstream. As it relates to agriculture, water law tends to fall into two categories: allocation rights and agricultural land use that could negatively affect water quality.
TopThe Riparian Doctrine
The riparian doctrine limits the usage of water to only those landowners with riparian land. To be classified as a riparian landowner, the land owner must own the land adjacent to the watercourse (river, stream, lake, or pond), from which the landowner plans to use the water. However, the water may only be classified as of reasonable use. The courts can settle unreasonable uses between landowners. A landowner cannot interfere with the reasonable use of another riparian landowner. Reasonableness is determined by comparing the proposed use with the other uses of other riparian landowners. Natural uses, such as drinking water, livestock use or watering a garden are considered reasonable uses under the law. Irrigation or industry are considerable reasonable uses under most state’s law.
Key Terms in this Chapter
Water Right: A system of rights to allocate the use of water that travels or collects in streams, rivers, lakes, ponds, or underground, including the allocation of the water to storage. Water rights are property rights, but water right holders do not own the water itself, they possess the right to use it. Depending on the type of water law doctrine they may be attached to ownership of the land, or they may exist as a separate property right.
Vested Water Right: Often this is a water right established by the use of water before the state’s water statues were enacted. These rights are confirmed through a court process called an adjudication. The court issues a decree recognizing the vested water right, identifying the date the use began, confirming the amount claimed is needed for the beneficial uses, and has been diverted continuously since the use began.
Instream Use or In-Place Use: The use of water that does not require diversion. For example: retaining water in the stream to benefit fisheries, or the capture of water in a stock pond without diversion.
Phreatophyte: Plants with roots constantly in touch with inundated soils or ground water. These plants tend to utilized large quantities of water.
Junior Water Rights: Under the prior appropriation doctrine, water rights that fulfill after older rights (senior) have been fulfilled, but will not be fulfilled when the source is insufficient to support more senior rights.
First-in-Time, First-in-Right: A principle of prior appropriation doctrine. Every water right is recognized with a priority date. The earliest date is the most senior right, with the later dates a junior right to those preceding them. The most senior right is entitled to water first, followed by the next most senior right, and so on. When water supply is limited, the most junior rights may not be fulfilled.
Beneficial Use: The use of water for a purpose identified by the state as a beneficial use. Each state defines in law what uses are beneficial. They typically include consumptive uses such as agriculture, domestic, industrial, mining, recreation, etc. They may also include non-consumptive uses such as fisheries, riparian, aesthetic, recreation, etc.
Adjudicated Water Right: A water right that has been perfected through a judicial adjudication clarifying and permanently establishing through decree the location, amount, use, timing, and priority date for the water.
Federal Reservation: A dedication of federal land to a specified purpose (for example, wilderness, national park, wildlife refuge, national conservation area, national recreation area, and many others).
Forfeiture: The water right holder has lost the water right due to failure to beneficially use the water for a specific period of time set by the state.
Hydrograph: A graph showing the rate of flow (discharge) over time past a specific point in a river, or other channel or conduit carrying flow.
Imported Water: The unnatural contributions of water to a stream. It occurs due to diversion of water from one system into another. This water in addition to the natural baseflow is considered together as the total baseflow.
Permitted Water Right: Water rights issued as a permit under state water statutes, which specifies location, amount, use, timing, and priority date for the water.
Appropriated Water Right: A water right acquired through the prior appropriation doctrine, as provided by state law, as either a vestee, existing, or permitted water right. Often referred to as a “state-law water right.”
Federal Reserved Water Rights: A water right reserved by the federal government (either expressly or impliedly) which supports the purpose of a federal reservation of land. Those purposes are specified in the Congressional legislation or Presidential proclamation that created the reservation.
Reasonable Use Principle: A method of water allocation under the Riparian Doctrine whereby a landowner has the right to use water in a way that does not deprive or hinder other riparian users from other legal uses of water.
Surface Water: Water that collects on the surface of the ground in a stream, river, lake or wetland.
Express Federal Water Right: When the federal government reserves public land and explicitly expresses an intent with regard to water.
Hybrid Doctrine: Contains elements of both the Riparian and Prior Appropriation Doctrines in states that began using the riparian system but later changed to using the prior appropriation system. Consequently, some water use dating to very early development may be managed as prior appropriation rights, even though both are within the same state. Some states may manage surface water under the prior appropriations doctrine, while ground water is managed under the riparian doctrine.
Abandonment: When a water right holder intentionally fails or neglects to use water for a period of time, despite the availability of water.
Implied Federal Reserved Water Right: When the federal government reserves public land for a specific purpose, and does not explicitly state an intent with regard to water, it implicitly reserves sufficient water to satisfy the purpose of the reserved public land.
Natural Flow Principle: A method of water allocation under the Riparian Doctrine whereby a landowner has the right to a natural water flow of undiminished quantity and unimpaired quality, and assumes a negligible withdrawal of water by any landowner.
Adjudication: A judicial proceeding by which vested or existing water rights, federal reserved water rights, and water rights awarded by the state under a permit system are integrated, and priority dates for all water rights are determined for an entire watershed or ground water basin. The process is referred to as a general stream adjudication.
Aquifer: A geological formation containing or conducting groundwater, especially one that yields a usable quantity of water.
Baseflow: The portion of the stream flow unrelated to direct storm runoff. It is the low flow of the stream that occurs through groundwater contribution to the channel.
Groundwater: Water that collects beneath the ground surface in the pore spaces of soil, gravel, sand, or silt, in the pore spaces within permeable rock, and in the fractures or cavities of rock.
Riparian Doctrine: A method of allocating water rights whereby all landowners whose properties adjoin a body of water have the right to make use of the water. Mostly applied in wetter areas. If there is not enough water to satisfy all property owners, there is an equitable sharing of burdens in proportion to the property frontage to the water body. Water rights are appurtenant to the land and cannot be sold or transferred other than with the adjoining land. Water usually cannot be transferred out of the watershed if it diminishes other riparian landowners’ rights.
Senior Water Rights: Under the prior appropriation doctrine, water rights that are fulfilled before more recent (junior) rights are fulfilled.
Priority Date: The date used to determine senior and junior water rights. For a new permit applicant, it is the date the application is correctly filed. For vested water rights, the date of first beneficial use as determined by a court declaration. For federal reserved rights, the date Congress or the President established the federal reservation.
Well Construction Permit: A permit, required by most states or counties, to drill a well. The permit is used to protect aquifers from poor well construction techniques and may also prevent well-to-well interference, but the permit does not convey a water right.
Annual Peak Flow: The maximum instantaneous discharge from a stream. It is the highest annual discharge and includes both groundwater contributions and direct runoff.
Storage Rights: The right to use stored water at any time after it has been appropriated and put into storage. The owner has complete control of the water upon its release from storage. Stored water may be released back into the stream for downstream use, and upon release is not subject to allocation based on priority date.
Prior Appropriation Doctrine: A method of allocating water rights whereby the first person to appropriate a quantity of water from a water source for a beneficial use has the right to continue to use the appropriate quantity of water for that beneficial use. Subsequent persons can appropriate the remaining water for their own beneficial purposes, provided they do not interfere with the rights of prior appropriators. Mostly applied in drier areas. Water flowing through a property in not owned as part of property ownership. This allows water to be moved to where it is needed most, and establishes a process to allocate water where there is not enough for all landowners. The water right then becomes appurtenant to the land on which the water is used.