Water Law- 2006- Kalamaya

Water Law- 2006- Kalamaya - H2O Outline Riparian Water...

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Unformatted text preview: H2O Outline Riparian Water Rights o Two primary issues: What lands are riparian? What rights attach to those lands? o Basic Tenets of Riparianism: Developed from English Doctrine of Natural Flow: can use water so long as you dont decrease quality or quantity to other users. Absolute right to drinking, bathing, and other domestic uses. Severance: Land severed from land touching water destroys the riparian rights of the severed land. o Can still transfer land and not transfer water right if there is an express reservation of water right. Reunited Lands Source-of-Title o Once severed, riparian rights are forever lost, even if lands are rejoined. Results in continually shrinking water rights. Unity-of-Title o If riparian and non-riparian land is rejoined, then non-riparian land is entitled to riparian water rights. Transfer of Land: Riparian Rights Transfer of land that leads to decrease in parcel size or frontage area does not reduce riparian rights. o May, however, be a factor for reasonableness of use. Use Rights by Riparian Owners Historically, limitation for on-tract, in-basin use, but most states allow exportation if doesnt harm other riparian owners Right to use surface of entire water body for boating, fishing or other rec activities o Limitation: public trust doctrine navigability Right to wharf out (may require a fed permit River & Harbor Act) o No right to fill Rapanos and 404 of Clean Water Act Domestic Use Rule : absolute right for all domestic use o Irrelevant if it hurts other riparian owners Artificial Use subject to reasonableness limitation rule o EX: watering livestock, irrigating corn, floating logs, mining, Industrial, etc. o Rights are correlative and subject to determination of reasonableness based on others o Rule: Irrigation is a reasonable use o If artificial uses are competing with one another, there are TWO tests: Common Law Reasonableness Test Test: look at the reasonableness of each use in comparison to one another o Pyle correlative rights Hoyles Five-factors: o Equal opportunity to all riparians; o No owner can use property to injure another; o Character and capacity of stream; o Foreseeable shortages should be fairly apportioned; o Custom can inform what is reasonable Note: some states prioritize (agric. use highest, for example) RSTMT 2 nd 850A Two-part test for reasonableness: Harm? o A riparian proprietor is subject to liability for making an unreasonable use of water that causes...
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This note was uploaded on 02/12/2008 for the course LAW 6302 taught by Professor Squillace during the Spring '07 term at Colorado.

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Water Law- 2006- Kalamaya - H2O Outline Riparian Water...

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