A Brief Introduction To Water Law

Fresh drinkable water is an essential but limited resource. This comment provides a brief and incomplete educational introduction to water law. Always consult an experienced attorney in natural resource legal situations.

Like all disciplines, the science of water has its special terminology. The following are a few common terms:

An "acre-foot" is the volume of water necessary to cover one acre to a depth of one foot, 325,851 U.S. gallons. In comparison, an Olympic-sized pool contains about 660,430 gallons of water. An "acre" is 43,560 square feet with a one mile square ("section") containing 640 acres. By way of comparison, a football field including the two end zones (360 feet by 160 feet) contains 57,600 square feet. "Fresh water" is typically defined as water that contains less than 1,000 parts per million (ppm) of any type of dissolved solids. "Saline water" has more than this concentration of solids and is considered unfit for human consumption or irrigation. "Hydrogeology" is broadly the study of global water, and the "hydrologic cycle" is the movement of water from the atmosphere to the earth and back again. "Karst topography" is a landscape of caves and openings formed by water dissolving rock such as limestone, gypsum, and dolomite. This may be associated with the formation of sinkholes and aquifers. An "aquifer" is underground water in permeable rock such as sand or gravel. "Streamflow" is often measured in millions of gallons per day (mgd). A flow of about 11.5 gallons per second will produce one mgd. A "navigable stream" is frequently defined as one that maintains an average width of 30 or more feet. "Porosity" is the ratio of the volume of open spaces to the total volume of the material. Thus, a saturated subsurface formation that is 100 feet thick with 20 percent porosity could store approximately a 20 feet equivalent water depth.

Two broad historical approaches to surface water have dominated the U.S. legal environment - the "riparian rights doctrine" and the "prior appropriation" theory. The riparian rights doctrine is based on English common law and is found in the eastern U.S. It allows landowners adjacent to surface water (especially streams) to make reasonable use of the water. If an allocation of water becomes necessary, then the relative stream frontage of landowners determines the amount of water that may be used. However, riparian theory presumes an abundance of water that is passed along without obstruction to downstream landowners.

Early on, navigable waters were subject to governmental ownership and control. Adjoining landowners only owned to the average low water mark and the remaining stream bed was owned by the federal or state governments. Government control assured navigation as these bodies were in many respects the early equivalent of contemporary interstate highways. The 1953 federal Submerged Lands Act and the Outer Continental Shelf Lands Act attempted to clarify state ownership that was becoming important for petroleum production.

The prior appropriation theory developed in the western U.S. where natural water was scarce. It is called a "usefructory right," that is a non-possessory right of 'use of the renewable fruits' of property that dates back to Roman law and earlier. Consider language in the Bible Old Testament Leviticus 19 allowing the poor to enter fields and glean.

Prior Appropriation generally followed a first-in-time first-in-right approach for beneficial uses and did not consider environmental concerns. Water rights could be purchased with the purchaser maintaining the prior appropriation rank. Prior users were entitled to their full allocation of water before an inferior user received any water. Since early water uses were agricultural, prior to large urban populations, agricultural users frequently dominate. States began allowing registration of appropriations in the early 1900s. From public registration, a complex system of state regulation, permits, water districts, and other forms of control has developed. Consequently, one must consult an experienced attorney to determine a state's regulatory regime. Some states blend riparian, prior appropriation, and regulatory legislation into a complex package.

There are a number of U.S. Supreme Court decisions related to surface river water disputes, primarily between states. While the details are beyond the scope of this brief comment, significant litigation has involved the Laramie River, Colorado River, and the Apalachicola-Chattahoochee-Flint River Basin, to name only three disputes. Often historical developments, when water was not a special concern due the limited population demands, have been key factors driving the Court's decision. The "Reserved Rights Doctrine" is a Supreme Court approach to address situations based upon a federal reserving of land without mentioning water. The idea is that the land reservation implies sufficient water rights to achieve the primary purpose of the reservation. This concept is also called the "Winters Doctrine," named for a 1908 Supreme Court decision that first applied the rule in interpreting an Indian treaty (Winters v. United States).

There is a body of treaties, judicial decisions, and federal legislation that addresses Native American water rights. Indian reservation uses go back to early treaties that frequently did not mention water rights. Judicial decisions in general held that unmentioned water continued to be reserved for superior tribal use. Non-reservation Indians, in particular some of the "Five Civilized Tribes," were typically granted water rights that were superior to claims by the subsequent Oklahoma state government (1906). This topic is especially complex.

Water in the ground, groundwater, was historically subject to the "rule of capture." Beneficial uses of groundwater were allowed without limitation. While allowing economic development, it also encouraged heavy drilling and drainage of non-replenishing aquifers. Consequently, many western states have asserted ownership of groundwater and allocate use under an appropriation model.

The Ogallala Aquifer, under parts of eight states in the Great Plains, is widely accessed for center-pivot irrigation systems (the green circles visible from aircraft) and its accessible depth is falling. Usage has proven difficult to regulate in a unified conservation system. Depletion is measured and conservation encouraged, but only a multi-state or federal regime will prevent a significant future water shortage for Mid-America agricultural production.

Parts of nine states are within the Great Lakes watershed. Access to this major source of fresh water has generally moved from a traditional riparian legal regime to one involving regulation. There were proposals in the 1980s to use Great Lakes water to recharge the Ogallala Aquifer. In response, most Great Lakes watershed states enacted legislation prohibiting out-of -basin withdrawals of Great Lakes water. Congress enacted the Water Resources Development Act of 1986 prohibiting the export of Great Lakes watershed water. Today, major concerns include invasive species, pollution, and declining water levels.

There are in the plant and geologic record historical periods of abundant rain and even centuries long drought. The natural causes and the ability of humans to alter these nature events is a matter of importance and scientific study, especially in the Great Plains and Southwestern United States. Will large cites be sustainable in these areas if there are water shortages? Will the cost of obtaining water, from the ocean for example, be a feasible alternative? A related water issue involves agricultural public policy involving water usage in producing such products as grain and meat.

A globally controversial issue is the sale and purchase of water rights, frequently by corporate entities, with no local community input. Critics note that the prior appropriation theory, allowing sale, was developed prior to modern public interest social policy considerations. The contrasting view asserts that vested property rights should not be taken. Courts frequently favor property rights; however, this is not universally true. While a number of states have some statutory language indicating that the public interest should be considered in water transfers, this standard is frequently undefined. Another approach taken by those seeking to stop a transfer is a "public trust" theory under which states have a broad responsibility to protect public resources. This has limited success with U.S. courts being unwilling to go beyond specific statutory language.

It is not surprising that water availability is related to numerous activities including petroleum production, mining, and power plants. Water, for example, is utilized in hydraulic fracturing (fracking). There are numerous groundwater pollution lawsuits against both individual and small business polluters (such as leaking storage tanks) as well as long operating factory and plant operations. Nuisance (interference with property rights) and negligence (unreasonable conduct) common law actions, in the absence of specific legislation, are possible. The federal Clean Water Act of 1972 does not expressly address groundwater pollution and the availability of legal actions under it are unclear. When scientific causation is evident, industry has a strong incentive to settle pollution cases since jurors frequently have a visceral reaction against polluters. Additionally, a non-disclosure agreement as a part of the settlement limits the availability of evidence to future litigants.

The federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980 (also called "Superfund") and state equivalent statutes may be utilized to sue Potentially Responsible Parties (PRPs) for the cost of environmental cleanups. These actions are often untaken by regulatory agencies. Due diligence, in both land and business purchases, must consider environmental pollution as a current owner may have liability for preexisting conduct.

The following are only three brief and incomplete examples of the numerous forms of litigation related to water supply systems. Public fluoridation of water has been controversial for many years. While the decision to add fluoride to drinking water systems is often viewed by courts as a discretionary governmental administrative action subject to the normal political process, some lawsuits have argued that fluoride is an unapproved medication that the public is being forced to consume without informed consent and in violation of the right to bodily integrity and privacy. Lawsuits alleging aging or unsafe water pipes, or otherwise inadequate public and public school system water health monitoring and distribution, are frequently based upon negligence or the 1974 federal Safe Drinking Water Act. Within the privately owned house, there were a number of lawsuits and settlements asserting substandard leaking polyvinyl chloride (PVC) pipe was supplied or utilized in construction. These lawsuits were often based upon allegations of misrepresentation or fraud.

A continual state and federal legislative debate occurs over expanding or limiting the statutory basis for product liability and environmental legal actions and remedies as well as the legal standing (ability to sue) of both private and public litigants. Federal law frequents preempts (overrides) state law in environmental and product manufacturing matters under the typical judicial interpretation of the Commerce Clause (Congress may regulate interstate commerce) of the U.S. Constitution.

However, it is evident that both the use and disposal of water utilized in various endeavors has economic, social, and environmental aspects. Conscious public policy decisions will need to be made as the demand for fresh water increases and the supply of fresh water becomes more costly to produce and distribute, such as occurs with ocean desalting plants, pipelines, and reservoirs. It is, of course, possible that new technologies will change this cost equation. Currently, widespread recycling of waste water seems inevitable.

An old saying is "you never miss the water until the well runs dry." Like most infrastructure (roads, bridges, electricity, etc.) consumers take abundant fresh water for granted. For decades commentators have been predicting water shortages and lamenting general infrastructure decay. The longer these issues are neglected, the more catastrophic and costly will be the inevitable result.

This comment provides an incomplete educational overview of a complex topic and is not intended to provide legal or professional advice. Always consult experienced legal and engineering experts in specific natural resource situations.