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Water Law - Squillace - Fall 2005 - Outline

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

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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
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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 – Anderson v. Bell
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