Water law in the United States refers to the water resources laws regulating water as a resource in the United States. Beyond issues common to all jurisdictions attempting to regulate water's uses, water law in the United States must contend with: Public regulation of waters, including flood control, environmental regulation—state and federal, public health regulation and regulation of fisheries The interplay of public and private rights in water, which draws on aspects of eminent domain law and the federal commerce clause powers; Water project law: the highly developed law regarding the formation, operation, and finance of public and quasi-public entities which operate local public works of flood control, navigation control, irrigation, and avoidance of environmental degradation; and Treaty rights of Native Americans.
The law governing these topics derives from all layers of US law. Some derives from common law principles which have developed over centuries, and which evolve as the nature of disputes presented to courts change. For example, the judicial approach to landowner rights to divert surface waters has changed significantly in the last century as public attitudes about land and water have evolved. Some derives from state statutory law. Some derives from the original public grants of land to the states and from the documents of their origination. Some derives from state, federal, and local regulation of waters through zoning, public health, and other regulation. (Federally recognized tribes may have water rights, but non-federally recognized Indian tribes generally do not.)
Common law sources of water law
The United States inherited the British common law system which develops legal principles through judicial decisions made in the context of disputes between parties. Statutory and constitutional law forms the framework within which these disputes are resolved, to some extent, but decisional law developed through the resolution of specific disputes is the great engine of water law.
At common law any rights to water must be claimed based on a claim against the land over which water flows or rests.Blackstone Commentries Vol II pg. 18 A downstream landowner can bring an action against an upstream owner for excessively diminishing the quantity and quality of water arriving at a downstream location.
Water Disputes arise in a number of contexts. When the state, local, or federal government takes private property that has water rights associated with private ownership, the value of that property is significantly affected by its water rights. And, properties located along public waters are quite common, because of the importance of public waters to commerce, the environment, and recreation. These taking cases represent a major source of the law defining the limits of private rights in water and public rights.
A second context for the development of water law arises from disputes among private parties over the extent of their respective water rights; e.g., a landowner upstream seeks to cut off the flow of surface water downstream and appropriate these surface waters for its exclusive use. The downstream owner claims that the upstream landowner has appropriated water that belongs to its property. A downstream owner seeks to stop the flow of excess water that will otherwise flood its land thereby increasing flood damage on the upstream owner. Each party claims that the other's conduct interferes with the rights associated with their respective ownership of the property.
The third context for water law arises from disputes regarding flooding or other invasions of private property by water. In these cases, the private party claims that private or public actions have damaged its private property, and the court must decide the nature of the respective rights of public and private parties arising from the alteration of the hydrology of a watershed.
It is important to recognize that there are both private and public 'rights' associated with the water, but that ownership of the water under common law is likened to claiming to "own" sunlight. Water must be legally appropriated before it is 'owned', and regulations on appropriation are typically controlled by government agencies and case laws. Who has domain over water is typically based on who owns the underlying soils, but Local, State and Federal regulations often limit the amount and type of uses to which water can be used in order to protect downstream users rights. At some point, before the water reaches the ocean it amasses sufficient size that the underlying lands become owned by the Nation or State in which they are situated. At this point (defined as the upper limits of navigation) individual rights give way to the superior rights of the public.
Riparian rights
The Eastern states (all those east of Texas, except Mississippi), follow the riparian doctrine, which permits anyone whose land has frontage on a body of water to use water from it. These states were the first settled by Europeans (and therefore most influenced by English law) and have the most available water. The Supreme Court has explained the evolution of riparian principles in United States v. Gerlach Livestock (1950)
In the middle of the Eighteenth Century, English common law included a body of water doctrine known as riparian rights. As long ago as the Institutes of Justinian, running waters, like the air and the sea, were res communes -- things common to all and property of none. Such was the doctrine spread by civil-law commentators and embodied in the Napoleonic code and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law.
The riparian concept developed fully in those portions of the United States where lands were amply watered by rainfall. United States v. Gerlach, supra. The Court's decision continues:
The primary natural asset was land, and the run-off in streams or rivers was incidental. Since access to flowing waters was possible only over private lands, access became a right annexed to the shore. The law followed the principle of equality which requires that the corpus of flowing water become no one's property and that, aside from rather limited use for domestic and agricultural purposes by those above, each riparian owner has the right to have the water flow down to him in its natural volume and channels unimpaired in quality. The riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or nonriparian purposes. In working out details of this egalitarian concept, the several states made many variations, each seeking to provide incentives for development of its natural advantages.
A number of rights may be listed as riparian rights. One court, in McLafferty v. St. Aubiin, 500 N.W.2d 165 (Minn. App. 1993), has listed the following:
In addition to these rights, riparian rights may include the right to access the water, the right to use or consume, the right to use the ground of non-public waters, and the right to use land that is added to the extent of the adjoining property by accretion.
Prior appropriation
Most western states, naturally drier, generally follow the prior appropriation doctrine, which gives a water right to whoever first puts water to beneficial use. Colorado, where the prior appropriation doctrine first developed, was generally looked to as the model by other Western states that adopted the prior appropriation doctrine. Water law in the western United States is defined by state constitutions (e.g., Colorado, New Mexico), statutes, and case law. Each state exhibits variations upon the basic principles of the prior appropriation doctrine. Texas and the states directly north of it; the West Coast states, and Mississippi have a mixture of systems. Hawaii uses a form of riparian rights, and Alaska uses appropriation-based rights.
In some states surface water (e.g., lakes, rivers, or springs), is treated differently from ground water (i.e., underground water that is extracted by drilling wells). However, in other states surface and ground water are managed conjunctively. For example, in New Mexico, surface and ground water have been managed together since the 1950s. This trend comes from a growing scientific understanding of the formerly mysterious behavior of underground water systems. For instance, gradual contamination of some water supplies with salt has been explained with the knowledge that drawing water from a well creates a gradual seepage into the well area, potentially contaminating it and surrounding areas with seawater from a nearby coast. Such knowledge is useful for understanding the effects of human activity on water supplies but can also create new sources of conflict.
A variety of federal, state, and local laws govern water rights. One issue unique to America is the law of water with respect to American Indians. Tribal water rights are a special case because they fall under neither the riparian system nor the appropriation system but are outlined in the Winters v. United States decision. Indian water rights do not apply to non-federally recognized tribes.
Federally recognized Indian tribes and water law Tribes within reservations
Reserved Native American water rights are commonly known as 'Winters rights, determined by the Winters and Arizona v. California cases.Canby, William C (2004). American Indian Law in a Nutshell, p. 431-432. West, a Thompson business., Minnesota. .
Rights are defined by federal law Establishment of a reservation by treaty, statute or executive order includes an implied reservation of water rights in sources within or bordering the reservation Based on date, users with prior appropriation dates under state law take precedence over the Native American rights, but those with later dates are subordinate Quantity of water reserved is the amount sufficient to irrigate all irrigable land on the reservation Rights are not lost due to non-use
Indian tribes have sole rights to water only after they have determined practicable irrigable acreage (PIA). According to legal scholar Bruce Duthu, tribes must prove that the requested amount of water is needed for their land and construct facilities to save it.Duthu, N. Bruce (2008). American Indians and the Law, p. 106-107. Viking Penguin, New York, .
Winters v. United States
Winters v. United States (1908) involved the Fort Belknap Indian Reservation, created by the 1888 agreement with the federal government. This agreement made one boundary of the reservation a part of the Milk River, but it did not mention water rights to that river. Afterwards, non-Indian settlers off the reservation constructed dams in the river that interfered with the tribe's agricultural use of the water. The settlers claimed appropriative rights after the reservation had been established, but before the tribe began to use the water. The Supreme Court held that the water rights were automatically reserved by the 1888 agreement that created the reservation. The Court assumed the Indians would not reserve lands for farming without also reserving the water that would make such farming possible.Canby Jr., William C. American Indian Law in a Nutshell. St. Paul: West Publishing Co., 2004. Pg. 429.
Arizona v. California