Chapter 8: Water Allocation Law - PowerPoint Presentation

1. Chapter 8: Water Allocation LawBefore 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S. From 1848 to 1899Riparian DoctrinePrior Appropriate Doctrine From 1900 to presentRiparian DoctrinePrior Appropriate DoctrineGroundwater DoctrinesInterstate CompactsSelected River CompactsFederal Reserved Rights

2. Why do we need to allocate water?There has always been conflict over waterAt first there is plenty, but then a shortage develops due to:droughtincreased useA system must be developed that allows users to share the resources

3. Human Fascination with such Scenarios…

4. Two schools of thoughtLand ownership perspectiveEquitable sharingRiparian lawsWater as a private property rightDoctrine of prior appropriation

5. Code of HammurabiBabylonia or Mesopotamia- between Tigris and Euphrates riverEarliest known allocation systemFrom about 1795 to 1750 BCE (Before Common Era)300 sections of law on many topicsDuty of cautionMust pay if neglectful and caused damageBased on system of justiceModern concept of torts

6. Sec 56. If a man has released waters and so has let the water carry away the works on his neighbour’s field, he shall pay 10 gur of corn for every bur flooded.

7. Justinian CodeCreated during reign of Roman Emperor Justinian I483 to 565 CE (Common Era)Roman system of allocationAlso known as Corpus Juris Civilis (Civil Code)Water in a stream is not for individual useIt must be shared with fisherman, navigation etc.A riparian property can remove a de minimus amountRulers were judged on their widsomThe allocation must be equitable and efficient.

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9. Chapter 8: Water Allocation LawBefore 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S. From 1848 to 1899Riparian DoctrinePrior Appropriate Doctrine From 1900 to presentRiparian DoctrinePrior Appropriate DoctrineGroundwater DoctrinesInterstate CompactsSelected River CompactsFederal Reserved Rights

10. Spanish Allocation LawAlfonso the Wise, Spanish King of Castile (1212-1284)Created Las Siete Partidas in 1263 (similar to the Justinian code)Water belonged to the crownIndividuals could obtain water through grantsWater that fell on land could be used without permission.His successors (1516 onward)Encouraged the sharing of irrigation water to enhance agricultural revenues from landConcepts of beneficial use and equityDomestic use was not controlled

11. Spanish Water LawNavigable rivers & streamsNo one could use it for irrigation and any existing ditches needed to be destroyed.Non-navigable streamsWater could be withdrawn for irrigation or running mills but without prejudice to communal use.Springs and wells could be used to the point of emptying the neighbor’s wells. However, the neighbor had a right to prevent it if it could be proven that water was withdrawn in malice or to cause harm.

12. Spanish EmpireIrrigation-driven laws because of the dry western U.S.However, since the New World was so far away, they transferred water allocation decisions to locals.Ditches or acequias (new to Spanish law) managed by ‘mayordomos’.Water management decision belonged to ‘ayuntamiento’ (town council) who reported to the Spanish governor.wikipedia

13. Spanish Allocation LawSpanish allocation law was used in Spanish settlements in the Americas including Mexico and parts of western US (New Mexico, Arizona, California).Spanish law recognized sound water practices used by indigenous peoplesLocal councils used concepts developed by them to manage water.

14. Pueblo Water RightsUnique water allocation system rooted in Spanish law.King or Queen of Spain could grant the use of water that flowed through a town to its citizens. All surface water and underlying aquifer water can be used by the city and the right expands to other areas as the city grows.

15. British Empire

16. English Common Law1200-1799Evolved in a much wetter climateDeveloped slowly over the years by the courtsMills received favored treatmentMills required dams and a large mill pondOften caused conflicts with navigationUpstream flooding, lower downstream flowsMill owners were rich and dominated the courtsFarmers were poorMills could pay farmers for their flooded landFishing was destroyed, so permits required

17. Workings of a water mill https://www.youtube.com/watch?v=x2qB0sR5IWA

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19. English Common Law1200-1799Maryland Mill Act 1669Encouraged construction of water millsEstablished 80-year leasesDamages had to be paid to injured riparian landownersMassachusetts Mill Act 1714Supported the concept that mills were more important to the public good than damages to a few upstream landowners

20. English Common LawNavigation and Fishing were the only interests that had sufficient political power to alter local water laws against mill owners.

21. Chapter 8: Water Allocation LawBefore 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S. From 1848 to 1899Riparian DoctrinePrior Appropriate Doctrine From 1900 to presentRiparian DoctrinePrior Appropriate DoctrineGroundwater DoctrinesInterstate CompactsSelected River CompactsFederal Reserved Rights

22. 1800 - 1847Code NapoleonDeveloped in France after the revolutionNapoleon as emperor ordered compilation of existing lawsProvided for property ownership, individual rightsDefined basic water rightsBasis for development of riparian law in the eastern USFrench influence strong in areas such as Louisiana

23. 1800 - 1847Riparian Doctrine developed in eastern states of USDisputes often between mill owners, fishermen, and boat ownersFishermen known to destroy dams to protect fishing areasRightsExtend to middle of non-navigable streamsNavigable streams could not be blockedRiparian property could have mills, property rights were transferableExcess water must be returned, undiminishedInjured landowners must be compensated

24. Tyler v. Wilkinson (1827)First riparian rights court decision in USSupreme Court ruling on Rhode Island caseRiparian property owner does not own waterNo one could remove water to the detriment of othersOwners are given the right to use waterThis right is limited to reasonable use of the waterIf the use is reasonable, then some damage to others is OKThe right of use is guaranteed, but not the ownership. This is called a usufructory property right

25. 1800 - 1847More and more mills were developed as population grewCrowded together at key locations where there was a drop in elevationMill owners developed joint water-use agreementsFlow measurements were important in allocating water

26. Figure 8.3 This table of water power, contained in the 1880 U.S. Census, shows a high level of sophistication for allocating river flows among mills at Lowell, Massachusetts.

27. Western Water Law1800 - 1847Dry weather made the riparian doctrine inappropriate. Good farm soils were far from the riverThe water use was consumptiveSome small irrigation projects by Spanish and IndiansMormons expanded irrigation dramaticallyBeneficial Use was the dominant doctrineWater was not owned by individuals, but by societyThe Mormon Bishop became the local watermaster

28. Brigham Young1801-1877Arrived in Salt Lake Valley in 1847No man has the right to waste one drop of water that another can turn into breadThere shall be no private ownership of the streams that come out of the canyons, nor the timber that grows in the hills. These belong to the people: All of the people.

29. Chapter 8: Water Allocation LawBefore 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S. From 1848 to 1899Riparian DoctrinePrior Appropriate Doctrine From 1900 to presentRiparian DoctrinePrior Appropriate DoctrineGroundwater DoctrinesInterstate CompactsSelected River CompactsFederal Reserved Rights

30. Riparian DoctrineLittle change in lawMill owners had developed elaborate system for sharing water

31. Prior Appropriation, 1848 - 1899California Gold Rush 1848Colorado Gold Rush 1859Miners came from eastern US as well as Spain, Portugal, Mexico, England, and WalesUse of water for gold mininghttps://www.youtube.com/watch?v=j74cIR1VAkA

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34. Gold Rush in GeorgiaDahlonega area starting in 1828Georgia miners moved west with CA gold rushMercury contamination of river sediments near mining areas is a resultDahlonega Gold Museum

35. Gold Rush changed mining and water lawsCalifornia and Colorado were not states (they were Territories) and no property rights existedRiparian Doctrine could not applyDeveloped laws based on mining practices in other areasPrior Appropriation1848 - 1899

36. Prior Appropriation1848 - 1899Miners had to develop their own set of rulesMiners could stake a claim, which was for their useClaim had to be filed at the mining camp or countyMiner had to work the claim, and could be taken if notWater was provided as first in time, first in rightClaims could be bought and soldEnforced by vigilante committeesSenior appropriators had first use, Junior appropriators came next

37. Figure 8.5 This Connected Sheet from the U.S. Department of Interior, Bureau of Land Management records, identifies the geographic position of individual mining claims under the General Mining Law of 1872.

38. Prior AppropriationCalifornia became a state in 1850Legislature declared both Riparian Doctrine and English Common Law applied to water rightsIrwin v. Phillips 1853 Gold miners could divert water from a stream under priority system, even though it hurt downstream usersEstablished the doctrine of prior appropriation

39. Prior AppropriationBased on priority datesDoctrine allows diversion of water to land that is not riparianUse of water limited to amount beneficially usedWater right can be sold, leased, or moved as long as downstream senior water rights are not injured

40. Prior AppropriationCalifornia DoctrineUsed Riparian Doctrine in humid areasPrior Appropriation in dry areasHawaii, Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, and Washington adopted similar laws

41. Prior AppropriationColorado DoctrinePrior Appropriation applied everywhereArizona, Idaho, Montana, Utah, Nevada, New Mexico, and Wyoming adopted similar laws

42. Figure 8.7 Illustration of priorities in Coffin v. Left Hand Ditch Company, 1882. Total allocated water is 446 cfs. Average flow is 331 cfs.User 1: 55 cfsUser 2: 62 (117)User 3: 58 (175)User 4: 85 (260)User 5: 158 (418)User 6: 28 (446)

43. Miner’s InchOld unit of water measurement used for allocating water (cfs now used most often)Rate of flow through a 1 square inch hole1 miner’s inch = (gpm = gallons/minute)9 gpm in ID, KS, NE, NM, ND, SD, UT11.2 gpm in AZ, CA, MT, OR11.7 gpm in CO12.6 gpm in BC

44. Chapter 8: Water Allocation LawBefore 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S. From 1848 to 1899Riparian DoctrinePrior Appropriate Doctrine From 1900 to presentRiparian DoctrinePrior Appropriate DoctrineGroundwater DoctrinesInterstate CompactsSelected River CompactsFederal Reserved Rights

45. Riparian Doctrine Since 1900Basis of water law in 31 Eastern statesPrinciple of Reasonable UseCan use any amount as long as they don’t interfere with the reasonable use by othersCan not store and release water if it causes harmDamnum absoque injuria (harm without injury)Principle of Correlative RightsRiparian landowners must share the total flowNo priority, use is proportional to waterfront lengthDuring a drought, allocations are pro-rated so everyone receives a shareNewer issues related to type of use, permits – “regulated riparian”Read more on ‘regulated riparian’ here https://nationalaglawcenter.org/overview/water-law/

46. Figure 8.8 Fertile farm ground, like this land adjacent to the St. Lawrence River near Les Eboulements, Quebec, was surveyed into long, narrow riparian lots so that all farmers would have frontage along the river.

47. Prior Appropriation Since 1900Used by all states west of the 100th meridianRight of use is based on historical use and priorityExpansion requires getting a Junior permitMust be diligent in useAny lapse in use and the right is lostSome irrigators continue to use water even though they lose money in the hopes they can use it laterMust be a beneficial useIn stream flows are not a beneficial use.Development of water markets https://www.ppic.org/publication/californias-water-market/

48. Figure 8.9 In this hypothetical example, the City of Greeley would like to exchange 20 cfs from water rights it purchased along the Greeley #3 Irrigation Canal, upstream to its water treatment facility.

49. Groundwater DoctrinesGroundwater was not understood, so laws are unscientificRule of Absolute Ownership:Property owner had right to remove as much as wanted from their own propertyRule of Correlative Rights (prescribes distance between wells)Doctrine of Prior Appropriation (Restriction on pumping rate or irrigated area)Doctrine of Safe Yield (Arizona)Users divided into groups, farms, mines, industries, citiesEach group had an appropriation. Correlative rights hold within the group

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51. Interstate CompactsNot only do individuals need to share, but states and countries also need an appropriation doctrineExamples:Colorado River Compact, 1922Niagara River Water Diversion Treaty, 1950Deleware River Compact, 1961Tennessee, 1955 (quality) and 1972 (quantity)Alabama, Coosa, Tallapoosa (ACT) Compact, 1999Apalachicola, Chattahoochee, Flint (ACF), ongoing

52. Colorado River Compact 1922Lee’s Ferry dividing line between Upper Basin and Lower Basin statesEach received 7.5 million acre-ft per yearUpper Basin states required to deliver that flow over a 10-year averageAppears that estimate of total flow available (15 million acre-ft) was based on an unusually wet period

53. Figure 8.10 The Colorado RiverBasin.

54. Figure 8.11 Watershed clipped to stream boundary.

55. Figure 8.12 Buffered stream and wells.

56. Figure 8.13 Wells subject to subflow ruling.

57. Federal Reserved Water RightsWinters doctrine (Winters v. United States)Indian Reservation treaty in Montana 1888 Downstream withdrawal in 1905 for irrigationCourt ruled that Indian prior appropriation rights dated to 1888Since Indians were to adopt agricultural practices, they would need irrigation“Indian reserved rights”Has been applied to other federal lands such as national parks

58. Politics and WaterNext war will be a water war in this regionhttp://www.waterpolitics.com/2015/01/05/3279/https://www.newsweek.com/war-water-syria-iraq-turkey-will-next-fight-rivers-report-says-1046349

59. SummaryConflicts over water allocation have existed through historyhttp://www.worldwater.org/conflict/map/Two main doctrines for water allocation have evolvedRiparian Prior appropriationLaws are different in eastern and western statesCompacts between states have developed