Water Law - Squillace - Fall 2005 - Outline

Water Law - Squillace - Fall 2005 - Outline - Overall Water...

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Unformatted text preview: Overall Water Law • Water rights are not a possessory prop right, they are usufruct rights – it’s the right to use the water and gov has right to regulate that right and charge a fee for that right • Systems: Riparian, PA, Hybrid systems (along 100th meridian and on West coast) • Federal reserved water rights - Implied rights associated with reserved lands The Value of Water: • Essential – we need it, will pay what ever it takes • Necessary for business (agri, energy, recreation, fish) • Relatively cheap • Public ownership is a common theme: The state can own the land and people can have rights to use that water. Usufruct right – right to use the water. Water Shortages • Often local: Mining of aquifer / Stream diversions (where you take the water from makes a big difference) • Over-appropriated streams still have substantial quantities of water o b/c of downstream demands (ie: Mex entitled to 10% of Colorado R) o water is recycled o not all claims to water are used • Water markets can’t really address shortages? Current Problems • Agri use to urban use (Ag to Urban transfers) • Water quality and biological integrity (inc. invasive species) • Inter-jurisdictional allocation • Maintaining water flows (recreation, biology, aesthetics) • Climate change issues RIPARIANISM Riparian Doctrine : gen rule: water in river belongs to owners of riparian land – water rights defined in terms of water use in assoc w/ land ownership • Governing law of humid regions of US – generally sts west of Mississippi River • Undertakings of riparian doctrine o (1) definition of what lands are riparian riparian – land adjoining flowing waters littoral – land adjoining standing waters, lake right law treats both generally the same (but springs are different) o (2) articulation of rights • on-track use, water had to be used in watershed of origin – no-off track use in old rule, but this has mostly changed • Natural use – Use for domestic purposes o Absolute right, can be exercised w/o regard to effect on co-riparians • Artificial uses , other rights: power generation, raising livestock, manufacturing, recreation – limited • Natural Flow Theory – (evolved to reasonable use) one cannot divert or diminish the quantity of water that would naturally flow in the river (is this right????????) • Reasonable use means it won’t be enjoined by ct b/c of nature of use – must be reasonable w/ respect to the correlative ability of other riparians to make simultaneous reasonable use of water • “Share the shortage” • Legislation that gives some uses priority • Historically you had to use the water in the watershed • Rest 2d of Torts – gives complex set of factors to judge reasonableness of a use (pg 45) • Water surface rights – boating, swimming, fishing, etc 1 • Right to wharf out – cannot impede navigation, extends to surface of entire water body (unless water body privately created then right may only extend over your land or public land –...
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This note was uploaded on 02/12/2008 for the course LAW 6302 taught by Professor Squillace during the Fall '07 term at Colorado.

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Water Law - Squillace - Fall 2005 - Outline - Overall Water...

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