Water law in the United States
Encyclopedia
In the United States
there are complex legal systems for allocating water right
s that vary by region. These varying systems exist for both historical and geographic reasons. Water law
encompasses a broad array of subjects or categories designed to provide a framework to resolve disputes
and policy issues relating to water:
The law governing these topics derives from all layers of law. Some derives from common law
principles which have developed over centuries, and which evolve as the nature of disputes presented to courts change. For example, the judicial approach to landowner rights to divert surface waters has changed significantly in the last century as public attitudes about land and water have evolved. Some derives from state statutory law
. Some derives from the original public grants of land to the States and from the documents of their origination. Some derives from state, federal, and local regulation of waters through zoning
, public health
, and other regulation. (Federally-recognized tribes may have water rights, but non-federally recognized Indian tribes generally do not.)
forms the framework within which these disputes are resolved, to some extent, but decisional law developed through the resolution of specific disputes is the great engine of water law.
These disputes arise in a number of contexts. When the state, local, or federal government
takes private property
that has water rights associated with private ownership, the value of that property is significantly affected by its water rights. And, properties located along public waters are quite common, because of the importance of public waters to commerce
, the environment, and recreation
. These taking cases represent a major source of the law defining the limits of private rights in water and public rights.
A second context for the development of water law arises from disputes among private parties over the extent of their respective water rights; e.g., a landowner upstream seeks to cut off the flow of surface water downstream, and appropriate these surface waters for its exclusive use. The downstream owner claims that the upstream landowner has appropriated water that belongs to its property. A downstream owner seeks to stop the flow of excess water that will otherwise flood its land thereby increasing flood
damage on the upstream owner. Each party claims that the other's conduct interferes with the rights associated with their respective ownership of the property.
A third context for water law arises from disputes regarding flooding or other invasions of private property by water. In these cases, the private party claims that private or public actions have damaged its private property, and the court must decide the nature of the respective rights of public and private parties arising from the alteration of the hydrology
of a watershed
.
It is important also to recognize that a private party may "own" certain water rights as compared to other private parties, but may not "own" those rights as against the state, federal, or local government because those rights may be subject to governmental regulation
, or because the rights may be subject to the superior ownership of the public. For example, putting aside federal statute
s regulating the subject, a party located on a river
with hydrological potential would have property interest in using that land for a mill, or for the generation of electricity
. That potential could significantly increase the value of the land and would impact the sale price amongst private parties. However, if the state or federal government took that same property by eminent domain, the landowner might not be entitled to compensation for the loss of riparian rights, if those rights are deemed subject to the superior rights of the public.
, except Mississippi
), follow the riparian doctrine
, which permits anyone whose land has frontage
on a body of water to use water from it. These states were the first settled by Europeans (and therefore most influenced by English law
) and have the most available water. The Supreme Court has explained the evolution of riparian principles in United States v. Gerlach Livestock (1950)
The riparian concept developed fully in those portions of the United States
where lands were amply watered by rainfall. United States v. Gerlach, supra. The Court's decision continues:
A number of rights may be listed as riparian rights. One court, in McLafferty v. St. Aubiin, 500 N.W.2d 165 (Minn. App. 1993), has listed the following:
In addition to these rights, riparian rights may include the right to access the water, the right to use or consume, the right to use the ground of non-public waters, and the right to use land that is added to the extent of the adjoining property by accretion
.
, which gives a water right to whoever first puts water to beneficial use
. Colorado water law is generally looked to as authority by other Western states that follow the prior appropriation doctrine. Water law in the western United States is defined by state constitutions (i.e. Colorado
, New Mexico
) statutes, and case law. Each state exhibits variations upon the basic principles of the prior appropriation doctrine. Texas
and the states directly north of it; the West Coast
states, and Mississippi have a mixture of systems. Hawaii
uses a form of riparian rights, and Alaska
uses appropriation-based rights.
In some states Surface water
, lakes, rivers, and springs, are treated differently from ground water underground water that is extracted by drilling wells
; however, In other states surface and ground water are managed conjunctively. For example, in New Mexico, surface and ground water have been managed together since the 1950s. This trend comes from a growing scientific understanding of the formerly mysterious behavior of underground water systems. For instance, gradual contamination
of some water supplies with salt
has been explained with the knowledge that drawing water from a well creates a gradual seepage into the well area, potentially contaminating it and surrounding areas with seawater
from a nearby coast. Such knowledge is useful for understanding the effects of human activity on water supplies but can also create new sources of conflict.
A variety of federal, state, and local laws govern water rights. One issue unique to America is the law of water with respect to American Indians
. Tribal water rights are a special case because they fall under neither the riparian system nor the appropriation
system but are outlined in the Winters v. United States
decision. Indian water rights do not apply to non-federally recognized tribes.
Indian tribes have sole rights to water only after they have determined practicable irrigable acreage (PIA). According to legal scholar Bruce Duthu, tribes must prove that the requested amount of water is needed for their land and construct facilities to save it.
, created by the 1888 agreement with the federal government. This agreement made one boundary of the reservation a part of the Milk River, but it did not mention water rights to that river. Afterwards, non-Indian settler
s off the reservation constructed dam
s in the river that interfered with the tribe's agricultural use of the water. The settlers claimed appropriative rights after the reservation had been established, but before the tribe began to use the water. The Supreme Court held that the water rights were automatically reserved by the 1888 agreement that created the reservation. The Court assumed the Indians would not reserve lands for farming without also reserving the water that would make such farming possible.
(1963), the Court had to determine water rights of tribes along the Colorado River
whose reservations were established by both statute and executive order. The Court held that the statute or executive order could not have meant to establish reservations without also reserving the use of water for the productivity
of the tribes. Therefore, the Court held the water rights were effectively reserved at the time of the reservation’s creation. Arizona v. California also concerned the quantity of water reserved. The Supreme Court ruled that the tribes were entitled to enough water to irrigate all the “practicable irrigable acreage” on the reservation.
Non-Native American purchaser's rights
1. A Native American
allotee is entitled to the share of the reservation's water that is needed to irrigate their land.
2. When a Native American sells their allotment to a non-Native American, the purchaser acquires the allotment's reserved water rights.
3. The priority date of those rights remains the date when the reservation was created.
4. Non-Native American allotees can lose their water rights to non-use.
Winters rights as property
Winters rights coming from a treaty
or statute creating a reservation are property to which title is recognized. When a reservation is created by an executive order, "the tribal title is unrecognized for Fifth Amendment
purposes."
because there is no actual Cherokee reservation. During this July 2009 proceeding, the State of Oklahoma sought monetary damages and injunctive relief against the Tyson Foods
Corporation, due to the injury to the Illinois River
Watershed from poultry waste. The defendant, Tyson Foods Inc., moved to dismiss the case because the Cherokee Nation was not involved, though they were a required party. The ruling on this motion helped determine the standing of the Cherokee Nation concerning water rights in their region.
The Court, in order to determine if case could proceed without the involvement of the Cherokee Nation, applied Rule 19. The first step in this process determined if the Cherokee Nation was a required party, meaning that complete relief could not be offered, their absence would impede a person’s ability to protect the interest, or more obligation
s could occur due to the interest. In this court ruling, it was determined that the Cherokee Nation has substantial interests, such as seen in their Environmental Quality Code which shows interest in protecting the Illinois River and vindicating any pollution
. The Cherokee Nation also has an interest in recovering remedies for any injuries, in regulating and taxing things concerning the environment of the Cherokee Nation. Furthermore, the Cherokee Nation claims their water rights derived from federal law and treaties were unaffected by statehood. In entering into cooperative agreements with tribes, which would be necessary to resolve the issue of water rights (especially in the case of the Cherokee Nation and Tyson Foods) the state of Oklahoma must meet explicit requirements.
1. The Governor is authorized, as well as any other named designee, and is allowed to enter into cooperative agreements on behalf of the state with federally recognized tribes within that state if an issue of mutual interest is being addressed.
2. Approval of the Secretary of the Interior is required if the cooperative agreement dealing with issues of mutual interest involves trust responsibilities.
3. Any cooperative agreement specified and authorized by paragraph 1 that involves the surface/groundwater resources of the states or which in whole or in part apportions the ownership of those resources, shall become effective if the Oklahoma Legislature
grants consent to authorize such cooperative agreement.
The United States historically promised the Five Civilized Tribes
that their lands would not be included without their consent in the territorial limits or jurisdiction
of a state. This doctrine, known as the Five Tribes Doctrine, according to scholar Jennifer Pelfrey:
The Winters ruling also applied to this case, because a ruling in 2007 determined that water rights were reserved even in riparian jurisdictions.
The ruling in this motion determined that the state did not have proper standing to proceed with this case without the Cherokee Nation's involvement.
, management
, financing, and repair of major water projects, including public drainage
, irrigation, flood control, navigation and other projects. Some of these projects are constructed and managed by state and local government. But many are constructed and managed by special local improvement districts, which are special political subdivisions of State government.
Water project law has had, and continues to have a significant role in the management of important water resources. For example, agricultural drainage, much of which is now responsible for maintaining a significant infrastructure
results largely from these local districts or other entities. Drainage in the United States occurred in two primary developmental periods,
during 1870-1920 and during 1945-1960. By 1920, more than 53 million acres (214,483.6 km²) out of a total of 956 million acres (3,868,798.2 km²) of US farmland had received some form of drainage. The United States Department of Agriculture (USDA), 1982 Natural Resources Inventory (NRI) inventory identified about 107 million acres (433,014 km²) of wet soils as being prime or adequately drained, of which 72 percent was then cropland. (Economic Research Service, 1987.) Often, state projects are constructed under the mantle of local water project authorities, using special federal funds appropriated for these purposes. Often the local entity must agree in return for the original federal funds to maintain the project indefinitely with local funds, derived either from taxes or special assessments.
Although there are unique state law features to water project instrumentalities, there are many features in common. Many of these districts are special improvement districts endowed by state law with the ability to collect revenues from lands that are benefited by the improvement. Often these assessments are in the form of special assessments which are proportional to the increase in value afforded the benefited land by the project. Or, the local improvement district may be afforded the power to levy special tax
es, or to levy charges in return for the privilege of receiving the use and benefit of the project.
Some districts are governed by a board of elected officials. Voting rights may be based upon population within the district or in some cases based on the ownership of benefited lands. In some states, some districts are governed by existing local government entities, such as county government, but under special statutory authority. Statutes governing these districts govern the authority to levy assessments, charges, or taxes. They determine the obligation of the authority to maintain. In some cases, establishment of the project, or the district, affords benefited landowners statutory rights to insist on continued maintenance of the project if statutory criteria are met. For example, a certain number of landowners might be required to petition, and make a showing that the conditions for maintenance have been met. The statutes typically provide a method of seeking judicial review
of the decisions made by the district in question.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
there are complex legal systems for allocating water right
Water right
Water right in water law refers to the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious...
s that vary by region. These varying systems exist for both historical and geographic reasons. Water law
Water law
Water law is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, but has also become influenced by environmental law...
encompasses a broad array of subjects or categories designed to provide a framework to resolve disputes
Dispute resolution
Dispute resolution is the process of resolving disputes between parties.-Methods:Methods of dispute resolution include:* lawsuits * arbitration* collaborative law* mediation* conciliation* many types of negotiation* facilitation...
and policy issues relating to water:
- Public waters, including watercourseWatercourseA watercourse is any flowing body of water. These include rivers, streams, anabranches, and so forth.-See also:* physical geography* Environmental flow* Waterway* Hydrology* Wadi-External links:...
s, lakeLakeA lake is a body of relatively still fresh or salt water of considerable size, localized in a basin, that is surrounded by land. Lakes are inland and not part of the ocean and therefore are distinct from lagoons, and are larger and deeper than ponds. Lakes can be contrasted with rivers or streams,...
s, and under modern law, wetlands - Other surface waterSurface waterSurface water is water collecting on the ground or in a stream, river, lake, wetland, or ocean; it is related to water collecting as groundwater or atmospheric water....
s—generally water that flows across the land from rainRainRain is liquid precipitation, as opposed to non-liquid kinds of precipitation such as snow, hail and sleet. Rain requires the presence of a thick layer of the atmosphere to have temperatures above the melting point of water near and above the Earth's surface...
, floodwaters, and snowmeltSnowmeltIn hydrology, snowmelt is surface runoff produced from melting snow. It can also be used to describe the period or season during which such runoff is produced. Water produced by snowmelt is an important part of the annual water cycle in many parts of the world, in some cases contributing high...
before those waters reach watercourses, lakes and wetlands - GroundwaterGroundwaterGroundwater is water located beneath the ground surface in soil pore spaces and in the fractures of rock formations. A unit of rock or an unconsolidated deposit is called an aquifer when it can yield a usable quantity of water. The depth at which soil pore spaces or fractures and voids in rock...
, sometimes called percolating underground water - Public regulation of waters, including flood controlFlood controlIn communications, flood control is a feature of many communication protocols designed to prevent overwhelming of a destination receiver. Such controls can be implemented either in software or in hardware, and will often request that the message be resent after the receiver has finished...
, environmental regulation—state and federal, public healthPublic healthPublic health is "the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities and individuals" . It is concerned with threats to health based on population health...
regulation and regulation of fisheries - Related to all of the above is interplay of public and private rights in water, which draws on aspects of eminent domainEminent domainEminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
law and the federal commerce clauseCommerce ClauseThe Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
powers - Water project law: the highly developed law regarding the formation, operation, and finance of public and quasi-public entities which operate local public works of flood control, navigationNavigationNavigation is the process of monitoring and controlling the movement of a craft or vehicle from one place to another. It is also the term of art used for the specialized knowledge used by navigators to perform navigation tasks...
control, irrigationIrrigationIrrigation may be defined as the science of artificial application of water to the land or soil. It is used to assist in the growing of agricultural crops, maintenance of landscapes, and revegetation of disturbed soils in dry areas and during periods of inadequate rainfall...
, and avoidance of environmental degradationEnvironmental degradationEnvironmental degradation is the deterioration of the environment through depletion of resources such as air, water and soil; the destruction of ecosystems and the extinction of wildlife... - Treaty rightsTreaty rightsTreaty rights are certain rights that were reserved by Indian tribes when they signed treaties with the United States government. By signing treaties, tribes traded vast amounts of their land and resources in exchange for reserved areas of land and things like protection , health care, education,...
of Native AmericansNative Americans in the United StatesNative Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
The law governing these topics derives from all layers of law. Some derives from common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
principles which have developed over centuries, and which evolve as the nature of disputes presented to courts change. For example, the judicial approach to landowner rights to divert surface waters has changed significantly in the last century as public attitudes about land and water have evolved. Some derives from state statutory law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...
. Some derives from the original public grants of land to the States and from the documents of their origination. Some derives from state, federal, and local regulation of waters through zoning
Zoning
Zoning is a device of land use planning used by local governments in most developed countries. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another...
, public health
Public health
Public health is "the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities and individuals" . It is concerned with threats to health based on population health...
, and other regulation. (Federally-recognized tribes may have water rights, but non-federally recognized Indian tribes generally do not.)
Common law sources of water law
The United States inherited the British common law system which develops legal principles through judicial decisions made in the context of disputes between parties. Statutory and constitutional lawConstitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
forms the framework within which these disputes are resolved, to some extent, but decisional law developed through the resolution of specific disputes is the great engine of water law.
These disputes arise in a number of contexts. When the state, local, or federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
takes private property
Private property
Private property is the right of persons and firms to obtain, own, control, employ, dispose of, and bequeath land, capital, and other forms of property. Private property is distinguishable from public property, which refers to assets owned by a state, community or government rather than by...
that has water rights associated with private ownership, the value of that property is significantly affected by its water rights. And, properties located along public waters are quite common, because of the importance of public waters to commerce
Commerce
While business refers to the value-creating activities of an organization for profit, commerce means the whole system of an economy that constitutes an environment for business. The system includes legal, economic, political, social, cultural, and technological systems that are in operation in any...
, the environment, and recreation
Recreation
Recreation is an activity of leisure, leisure being discretionary time. The "need to do something for recreation" is an essential element of human biology and psychology. Recreational activities are often done for enjoyment, amusement, or pleasure and are considered to be "fun"...
. These taking cases represent a major source of the law defining the limits of private rights in water and public rights.
A second context for the development of water law arises from disputes among private parties over the extent of their respective water rights; e.g., a landowner upstream seeks to cut off the flow of surface water downstream, and appropriate these surface waters for its exclusive use. The downstream owner claims that the upstream landowner has appropriated water that belongs to its property. A downstream owner seeks to stop the flow of excess water that will otherwise flood its land thereby increasing flood
Flood
A flood is an overflow of an expanse of water that submerges land. The EU Floods directive defines a flood as a temporary covering by water of land not normally covered by water...
damage on the upstream owner. Each party claims that the other's conduct interferes with the rights associated with their respective ownership of the property.
A third context for water law arises from disputes regarding flooding or other invasions of private property by water. In these cases, the private party claims that private or public actions have damaged its private property, and the court must decide the nature of the respective rights of public and private parties arising from the alteration of the hydrology
Hydrology
Hydrology is the study of the movement, distribution, and quality of water on Earth and other planets, including the hydrologic cycle, water resources and environmental watershed sustainability...
of a watershed
Drainage basin
A drainage basin is an extent or an area of land where surface water from rain and melting snow or ice converges to a single point, usually the exit of the basin, where the waters join another waterbody, such as a river, lake, reservoir, estuary, wetland, sea, or ocean...
.
It is important also to recognize that a private party may "own" certain water rights as compared to other private parties, but may not "own" those rights as against the state, federal, or local government because those rights may be subject to governmental regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
, or because the rights may be subject to the superior ownership of the public. For example, putting aside federal statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s regulating the subject, a party located on a river
River
A river is a natural watercourse, usually freshwater, flowing towards an ocean, a lake, a sea, or another river. In a few cases, a river simply flows into the ground or dries up completely before reaching another body of water. Small rivers may also be called by several other names, including...
with hydrological potential would have property interest in using that land for a mill, or for the generation of electricity
Electricity
Electricity is a general term encompassing a variety of phenomena resulting from the presence and flow of electric charge. These include many easily recognizable phenomena, such as lightning, static electricity, and the flow of electrical current in an electrical wire...
. That potential could significantly increase the value of the land and would impact the sale price amongst private parties. However, if the state or federal government took that same property by eminent domain, the landowner might not be entitled to compensation for the loss of riparian rights, if those rights are deemed subject to the superior rights of the public.
Riparian rights
The Eastern states (all those east of TexasTexas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, except Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
), follow the riparian doctrine
Riparian water rights
Riparian water rights are system for allocating water among those who possess land about its source. It has its origins in English common law...
, which permits anyone whose land has frontage
Frontage
Frontage is the full length of a plot of land or a building measured alongside the road on to which the plot or building fronts. This is considered especially important for certain types of commercial and retail real estate, in applying zoning bylaws and property tax...
on a body of water to use water from it. These states were the first settled by Europeans (and therefore most influenced by English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
) and have the most available water. The Supreme Court has explained the evolution of riparian principles in United States v. Gerlach Livestock (1950)
In the middle of the Eighteenth Century, English common law included a body of water doctrine known as riparian rights. As long ago as the Institutes of Justinian, running waterRunning WaterRunning Water may be:* Running Water, Tennessee, former name of Whiteside, Tennessee* Running Water, South Dakota, a community in Bon Homme County, South Dakota* "Running Water" from the 1983 album The Present...
s, like the air and the sea, were res communes -- things common to all and property of none. Such was the doctrine spread by civil-lawCivil law (legal system)Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
commentators and embodied in the Napoleonic codeNapoleonic codeThe Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law.
The riparian concept developed fully in those portions of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
where lands were amply watered by rainfall. United States v. Gerlach, supra. The Court's decision continues:
The primary natural assetAssetIn financial accounting, assets are economic resources. Anything tangible or intangible that is capable of being owned or controlled to produce value and that is held to have positive economic value is considered an asset...
was land, and the run-off in streams or rivers was incidental. Since access to flowing waters was possible only over private lands, access became a right annexed to the shore. The law followed the principle of equalityEquality before the lawEquality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
which requires that the corpus of flowing water become no one's property and that, aside from rather limited use for domestic and agricultural purposes by those above, each riparian owner has the right to have the water flow down to him in its natural volume and channels unimpaired in quality. The riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or nonriparian purposes. In working out details of this egalitarian concept, the several states made many variations, each seeking to provide incentives for development of its natural advantages.
A number of rights may be listed as riparian rights. One court, in McLafferty v. St. Aubiin, 500 N.W.2d 165 (Minn. App. 1993), has listed the following:
Riparian rights are generally described as the rights to use and enjoy the profits and advantages of the water. See78 Am.Jur.2d Waters § 263 (1975). The riparian owner has a right to make such use of the lake over its entire surface, in common with all other abutting owners, provided such use is reasonable and does not unduly interfere with the exercise of similar rights on the part of other abutting owners. Johnson v. Siefert, 100 N.W.2d 689, 697 (1960). Riparian rights include the right to build and maintain, for private or public use, wharves, piers, and landings on the riparian land and extending into the water. State v. Korrer, 148 N.W. 617, 622 (1914). They also include such rights as huntingHuntingHunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...
, fishingFishingFishing is the activity of trying to catch wild fish. Fish are normally caught in the wild. Techniques for catching fish include hand gathering, spearing, netting, angling and trapping....
, boatingBoatingBoating is the leisurely activity of travelling by boat, or the recreational use of a boat whether powerboats, sailboats, or man-powered vessels , focused on the travel itself, as well as sports activities, such as fishing or water skiing...
, sailing, irrigating, and growing and harvesting wild riceWild riceWild rice is four species of grasses forming the genus Zizania, and the grain which can be harvested from them. The grain was historically gathered and eaten in both North America and China...
. In re Application of Central Baptist Theological Seminary, 370 N.W.2d 642, 646 (Minn.App.1985), pet. for rev. denied (Minn. Sept. 19, 1985).
In addition to these rights, riparian rights may include the right to access the water, the right to use or consume, the right to use the ground of non-public waters, and the right to use land that is added to the extent of the adjoining property by accretion
Accretion (coastal management)
Accretion is the process of coastal sediment returning to the visible portion of a beach or foreshore following a submersion event. A sustainable beach or foreshore often goes through a cycle of submersion during rough weather then accretion during calmer periods...
.
Prior appropriation
Most western states, naturally drier, generally follow the prior appropriation doctrinePrior appropriation water rights
Prior appropriation water rights, sometimes known as the Colorado Doctrine in reference to the U.S. Supreme Court case Wyoming v. Colorado, is a system of allocating water rights from a water source that is markedly different from riparian water rights...
, which gives a water right to whoever first puts water to beneficial use
Beneficial use
Beneficial use is a legal term describing a person's right to enjoy the benefits of specific property, especially a view or access to light, air, or water, even though title to that property is held by another person. This may also be termed "beneficial enjoyment". Black's Law Dictionary...
. Colorado water law is generally looked to as authority by other Western states that follow the prior appropriation doctrine. Water law in the western United States is defined by state constitutions (i.e. Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
, New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...
) statutes, and case law. Each state exhibits variations upon the basic principles of the prior appropriation doctrine. Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
and the states directly north of it; the West Coast
West Coast of the United States
West Coast or Pacific Coast are terms for the westernmost coastal states of the United States. The term most often refers to the states of California, Oregon, and Washington. Although not part of the contiguous United States, Alaska and Hawaii do border the Pacific Ocean but can't be included in...
states, and Mississippi have a mixture of systems. Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
uses a form of riparian rights, and Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
uses appropriation-based rights.
In some states Surface water
Surface water
Surface water is water collecting on the ground or in a stream, river, lake, wetland, or ocean; it is related to water collecting as groundwater or atmospheric water....
, lakes, rivers, and springs, are treated differently from ground water underground water that is extracted by drilling wells
Water well
A water well is an excavation or structure created in the ground by digging, driving, boring or drilling to access groundwater in underground aquifers. The well water is drawn by an electric submersible pump, a trash pump, a vertical turbine pump, a handpump or a mechanical pump...
; however, In other states surface and ground water are managed conjunctively. For example, in New Mexico, surface and ground water have been managed together since the 1950s. This trend comes from a growing scientific understanding of the formerly mysterious behavior of underground water systems. For instance, gradual contamination
Contamination
Contamination is the presence of a minor and unwanted constituent in material, physical body, natural environment, at a workplace, etc.-Specifics:"Contamination" also has more specific meanings in science:...
of some water supplies with salt
Salt
In chemistry, salts are ionic compounds that result from the neutralization reaction of an acid and a base. They are composed of cations and anions so that the product is electrically neutral...
has been explained with the knowledge that drawing water from a well creates a gradual seepage into the well area, potentially contaminating it and surrounding areas with seawater
Seawater
Seawater is water from a sea or ocean. On average, seawater in the world's oceans has a salinity of about 3.5% . This means that every kilogram of seawater has approximately of dissolved salts . The average density of seawater at the ocean surface is 1.025 g/ml...
from a nearby coast. Such knowledge is useful for understanding the effects of human activity on water supplies but can also create new sources of conflict.
A variety of federal, state, and local laws govern water rights. One issue unique to America is the law of water with respect to American Indians
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
. Tribal water rights are a special case because they fall under neither the riparian system nor the appropriation
Appropriation (economics)
Appropriation is a non-violent process by which previously unowned natural resources, particularly land, become the property of a person or group of persons. The term is widely used in economics in this sense...
system but are outlined in the Winters v. United States
Winters v. United States
Winters v. United States is a United States Supreme Court case clarifying water rights of American Indian reservations. This doctrine was meant to clearly define the water rights of American Indians in cases where the rights were not clear. The case was first argued on October 24, 1907 and a...
decision. Indian water rights do not apply to non-federally recognized tribes.
Tribes within Reservations
Reserved Native American water rights are commonly known as 'Winters rights, determined by the Winters and Arizona v. California cases.- Rights are defined by federal lawFederal lawFederal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...
- Establishment of a reservationIndian reservationAn American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...
by treaty, statute or executive order includes an implied reservation of water rights in sources within or bordering the reservation - Based on date, users with prior appropriation dates under state lawState lawIn the United States, state law is the law of each separate U.S. state, as passed by the state legislature and adjudicated by state courts. It exists in parallel, and sometimes in conflict with, United States federal law. These disputes are often resolved by the federal courts.-See also:*List of U.S...
take precedence over the Native American rights, but those with later dates are subordinate - Quantity of water reserved is the amount sufficient to irrigate all irrigable land on the reservation
- Rights are not lost due to non-use
Indian tribes have sole rights to water only after they have determined practicable irrigable acreage (PIA). According to legal scholar Bruce Duthu, tribes must prove that the requested amount of water is needed for their land and construct facilities to save it.
Example: Winters v. United States
Winters v. United States (1908) involved the Fort Belknap Indian ReservationFort Belknap Indian Reservation
The Fort Belknap Indian Reservation is a semi-autonomous Native American-governed territory covering 1,014.064 sq mi , and is located in north central Montana. This includes the main portion of their homeland, as well as off-reservation trust land. It is shared by two Native American tribes, the...
, created by the 1888 agreement with the federal government. This agreement made one boundary of the reservation a part of the Milk River, but it did not mention water rights to that river. Afterwards, non-Indian settler
Settler
A settler is a person who has migrated to an area and established permanent residence there, often to colonize the area. Settlers are generally people who take up residence on land and cultivate it, as opposed to nomads...
s off the reservation constructed dam
Dam
A dam is a barrier that impounds water or underground streams. Dams generally serve the primary purpose of retaining water, while other structures such as floodgates or levees are used to manage or prevent water flow into specific land regions. Hydropower and pumped-storage hydroelectricity are...
s in the river that interfered with the tribe's agricultural use of the water. The settlers claimed appropriative rights after the reservation had been established, but before the tribe began to use the water. The Supreme Court held that the water rights were automatically reserved by the 1888 agreement that created the reservation. The Court assumed the Indians would not reserve lands for farming without also reserving the water that would make such farming possible.
Example: Arizona v. California
In Arizona v. CaliforniaArizona v. California
Arizona v. California is a set of United States Supreme Court cases, all dealing with water distribution from the Colorado River.When a dispute arises between two states, the case is filed for original jurisdiction with the United States Supreme Court. This is one of the very limited circumstances...
(1963), the Court had to determine water rights of tribes along the Colorado River
Colorado River
The Colorado River , is a river in the Southwestern United States and northwestern Mexico, approximately long, draining a part of the arid regions on the western slope of the Rocky Mountains. The watershed of the Colorado River covers in parts of seven U.S. states and two Mexican states...
whose reservations were established by both statute and executive order. The Court held that the statute or executive order could not have meant to establish reservations without also reserving the use of water for the productivity
Productivity
Productivity is a measure of the efficiency of production. Productivity is a ratio of what is produced to what is required to produce it. Usually this ratio is in the form of an average, expressing the total output divided by the total input...
of the tribes. Therefore, the Court held the water rights were effectively reserved at the time of the reservation’s creation. Arizona v. California also concerned the quantity of water reserved. The Supreme Court ruled that the tribes were entitled to enough water to irrigate all the “practicable irrigable acreage” on the reservation.
Non-Native American purchaser's rights
1. A Native American
Indigenous peoples of the Americas
The indigenous peoples of the Americas are the pre-Columbian inhabitants of North and South America, their descendants and other ethnic groups who are identified with those peoples. Indigenous peoples are known in Canada as Aboriginal peoples, and in the United States as Native Americans...
allotee is entitled to the share of the reservation's water that is needed to irrigate their land.
2. When a Native American sells their allotment to a non-Native American, the purchaser acquires the allotment's reserved water rights.
3. The priority date of those rights remains the date when the reservation was created.
4. Non-Native American allotees can lose their water rights to non-use.
Winters rights as property
Winters rights coming from a treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
or statute creating a reservation are property to which title is recognized. When a reservation is created by an executive order, "the tribal title is unrecognized for Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
purposes."
Cherokee water rights
This court case defined the place of Native American tribes in the modern court. It involved water rights in the case of the Cherokee nation. Winters Rights do not apply to the Cherokee NationCherokee Nation
The Cherokee Nation is the largest of three Cherokee federally recognized tribes in the United States. It was established in the 20th century, and includes people descended from members of the old Cherokee Nation who relocated voluntarily from the Southeast to Indian Territory and Cherokees who...
because there is no actual Cherokee reservation. During this July 2009 proceeding, the State of Oklahoma sought monetary damages and injunctive relief against the Tyson Foods
Tyson Foods
Tyson Foods, Inc. is a multinational corporation based in Springdale, Arkansas, that operates in the food industry. The company is the world's second largest processor and marketer of chicken, beef, and pork only behind Brazilian JBS S.A., and annually exports the largest percentage of beef out of...
Corporation, due to the injury to the Illinois River
Illinois River
The Illinois River is a principal tributary of the Mississippi River, approximately long, in the State of Illinois. The river drains a large section of central Illinois, with a drainage basin of . This river was important among Native Americans and early French traders as the principal water route...
Watershed from poultry waste. The defendant, Tyson Foods Inc., moved to dismiss the case because the Cherokee Nation was not involved, though they were a required party. The ruling on this motion helped determine the standing of the Cherokee Nation concerning water rights in their region.
The Court, in order to determine if case could proceed without the involvement of the Cherokee Nation, applied Rule 19. The first step in this process determined if the Cherokee Nation was a required party, meaning that complete relief could not be offered, their absence would impede a person’s ability to protect the interest, or more obligation
Obligation
An obligation is a requirement to take some course of action, whether legal or moral. There are also obligations in other normative contexts, such as obligations of etiquette, social obligations, and possibly...
s could occur due to the interest. In this court ruling, it was determined that the Cherokee Nation has substantial interests, such as seen in their Environmental Quality Code which shows interest in protecting the Illinois River and vindicating any pollution
Pollution
Pollution is the introduction of contaminants into a natural environment that causes instability, disorder, harm or discomfort to the ecosystem i.e. physical systems or living organisms. Pollution can take the form of chemical substances or energy, such as noise, heat or light...
. The Cherokee Nation also has an interest in recovering remedies for any injuries, in regulating and taxing things concerning the environment of the Cherokee Nation. Furthermore, the Cherokee Nation claims their water rights derived from federal law and treaties were unaffected by statehood. In entering into cooperative agreements with tribes, which would be necessary to resolve the issue of water rights (especially in the case of the Cherokee Nation and Tyson Foods) the state of Oklahoma must meet explicit requirements.
1. The Governor is authorized, as well as any other named designee, and is allowed to enter into cooperative agreements on behalf of the state with federally recognized tribes within that state if an issue of mutual interest is being addressed.
2. Approval of the Secretary of the Interior is required if the cooperative agreement dealing with issues of mutual interest involves trust responsibilities.
3. Any cooperative agreement specified and authorized by paragraph 1 that involves the surface/groundwater resources of the states or which in whole or in part apportions the ownership of those resources, shall become effective if the Oklahoma Legislature
Oklahoma Legislature
The Legislature of the State of Oklahoma is the biennial meeting of the legislative branch of the government of Oklahoma. It is bicameral, comprising the Oklahoma House of Representatives and the Oklahoma Senate, with all members elected directly by the people. The House of Representatives has 101...
grants consent to authorize such cooperative agreement.
The United States historically promised the Five Civilized Tribes
Five Civilized Tribes
The Five Civilized Tribes were the five Native American nations—the Cherokee, Chickasaw, Choctaw, Creek, and Seminole—that were considered civilized by Anglo-European settlers during the colonial and early federal period because they adopted many of the colonists' customs and had generally good...
that their lands would not be included without their consent in the territorial limits or jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
of a state. This doctrine, known as the Five Tribes Doctrine, according to scholar Jennifer Pelfrey:
"Southeast Oklahoma is unique from other tribal reservation areas
because of the Five Tribes doctrine. The federal government
removed the Five Civilized Tribes to specific unsettled lands
within the Indian Territory. At that time it also granted federal
land patents to the Five Tribes and the Tribes were authorized to
issue tribal patents in the case of a transfer of their tribal land.
The doctrine holds that this "permanent homeland" includes
rights to all the water within it, not just enough to fulfill the
land's purpose, as under the Winters doctrine. In addition, the
Supreme Court has held in past decisions that the federal government
conveyed specific lands directly to Indian tribes, and that a
state that later enveloped tribal land did not inherit rights to the
water on that land. The Tribes also point to Oklahoma's 1906
Enabling Act, federal legislation which says that the State
Constitution shall not limit the rights held by the Indians of
Oklahoma. The Oklahoma State Constitution, as adopted in 1907,
further provides that non-Indian inhabitants of the State do not have
rights to Indian lands. The Five Tribes doctrine emphasizes that
under federal legislation treating the Five Tribes differently from
other tribes on reservations, the Choctaw and Chickasaw Tribes in
southeastern Oklahoma would own all the water on their lands, and
would not be subject to state authority as to its use or non-use."
The Winters ruling also applied to this case, because a ruling in 2007 determined that water rights were reserved even in riparian jurisdictions.
The ruling in this motion determined that the state did not have proper standing to proceed with this case without the Cherokee Nation's involvement.
Water Project Law
Water project law is the branch of state and federal law that deals with the constructionConstruction
In the fields of architecture and civil engineering, construction is a process that consists of the building or assembling of infrastructure. Far from being a single activity, large scale construction is a feat of human multitasking...
, management
Management
Management in all business and organizational activities is the act of getting people together to accomplish desired goals and objectives using available resources efficiently and effectively...
, financing, and repair of major water projects, including public drainage
Drainage
Drainage is the natural or artificial removal of surface and sub-surface water from an area. Many agricultural soils need drainage to improve production or to manage water supplies.-Early history:...
, irrigation, flood control, navigation and other projects. Some of these projects are constructed and managed by state and local government. But many are constructed and managed by special local improvement districts, which are special political subdivisions of State government.
Water project law has had, and continues to have a significant role in the management of important water resources. For example, agricultural drainage, much of which is now responsible for maintaining a significant infrastructure
Infrastructure
Infrastructure is basic physical and organizational structures needed for the operation of a society or enterprise, or the services and facilities necessary for an economy to function...
results largely from these local districts or other entities. Drainage in the United States occurred in two primary developmental periods,
during 1870-1920 and during 1945-1960. By 1920, more than 53 million acres (214,483.6 km²) out of a total of 956 million acres (3,868,798.2 km²) of US farmland had received some form of drainage. The United States Department of Agriculture (USDA), 1982 Natural Resources Inventory (NRI) inventory identified about 107 million acres (433,014 km²) of wet soils as being prime or adequately drained, of which 72 percent was then cropland. (Economic Research Service, 1987.) Often, state projects are constructed under the mantle of local water project authorities, using special federal funds appropriated for these purposes. Often the local entity must agree in return for the original federal funds to maintain the project indefinitely with local funds, derived either from taxes or special assessments.
Although there are unique state law features to water project instrumentalities, there are many features in common. Many of these districts are special improvement districts endowed by state law with the ability to collect revenues from lands that are benefited by the improvement. Often these assessments are in the form of special assessments which are proportional to the increase in value afforded the benefited land by the project. Or, the local improvement district may be afforded the power to levy special tax
Tax
To tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
es, or to levy charges in return for the privilege of receiving the use and benefit of the project.
Some districts are governed by a board of elected officials. Voting rights may be based upon population within the district or in some cases based on the ownership of benefited lands. In some states, some districts are governed by existing local government entities, such as county government, but under special statutory authority. Statutes governing these districts govern the authority to levy assessments, charges, or taxes. They determine the obligation of the authority to maintain. In some cases, establishment of the project, or the district, affords benefited landowners statutory rights to insist on continued maintenance of the project if statutory criteria are met. For example, a certain number of landowners might be required to petition, and make a showing that the conditions for maintenance have been met. The statutes typically provide a method of seeking judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of the decisions made by the district in question.
Major legal cases in American water law
- Arizona v. CaliforniaArizona v. CaliforniaArizona v. California is a set of United States Supreme Court cases, all dealing with water distribution from the Colorado River.When a dispute arises between two states, the case is filed for original jurisdiction with the United States Supreme Court. This is one of the very limited circumstances...
- Colorado River Water Conservation Dist. v. United States
- Significant cases in Washington State
- Sun Belt Water Inc. v. Canada NAFTA Arbitation pending
- Winters vs. United States
- Wyoming v. ColoradoWyoming v. ColoradoWyoming v. Colorado is a set of court cases, all dealing with water distribution from the Laramie River. Petition for rehearing was granted which revised the original decision. A motion to dismiss was later denied....