1. Chapter 8: Water Allocation Law
Before 1200
Code of Hammurabi
Justinian Code
From 1200 to 1799
Spanish Water Law
English Water Law
From 1800 to 1847
Code Napoleon
Riparian Doctrine
Western U.S.
From 1848 to 1899
Riparian Doctrine
Prior Appropriate Doctrine
From 1900 to present
Groundwater Doctrines
Interstate Compacts
Selected River Compacts
Federal Reserved Rights

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

3. Code of Hammurabi Earliest known allocation system Duty of caution
From about 1795 to 1750 BCE (Before Common Era)
300 sections of law on many topics
Duty of caution
Must pay if neglectful and caused damage
Based on system of justice
Modern concept of torts

4. 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.

5. Justinian Code Created during reign of Roman Emperor Justinian I
483 to 565 CE (Common Era)
Roman system of allocation
Also known as Corpus Juris Civilis (Civil Code)
Water in a stream is not for individual use
It must be shared with fisherman, navigation etc.
A riparian property can remove a de minimus amount
Rulers were judged on their widsom
The allocation must be equitable and efficient.

7. Chapter 8: Water Allocation Law
Before 1200
Code of Hammurabi
Justinian Code
From 1200 to 1799
Spanish Water Law
English Water Law
From 1800 to 1847
Code Napoleon
Riparian Doctrine
Western U.S.
From 1848 to 1899
Riparian Doctrine
Prior Appropriate Doctrine
From 1900 to present
Groundwater Doctrines
Interstate Compacts
Selected River Compacts
Federal Reserved Rights

8. Spanish Allocation Law
Alfonso the Wise, Spanish King of Castile
Created Las Siete Partidas in 1263
Water belonged to the crown
Individuals could obtain water through grants
De minimus use was OK
Charles I, King of Spain
Recopilacion de leyes de los Reynos de las Indias (1516)
Encouraged the sharing of irrigation water to increase use
Concepts of beneficial use and equity
Domestic use was not controlled

9. Spanish Allocation Law
Spanish 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 American Indians

10. English Common Law, 1200-1799 Evolved in a much wetter climate
Developed slowly over the years by the courts
Mills received favored treatment
Mills required dams and a large mill pond
Often caused conflicts with navigation
Upstream flooding, lower downstream flows
Mill owners were rich and dominated the courts
Farmers were poor
Mills could pay farmers for their flooded land
Fishing was destroyed, so permits required

13. English Common Law, 1200-1799 Maryland Mill Act 1669
Encouraged construction of water mills
Established 80-year leases
Damages had to be paid to injured riparian landowners
Massachusetts Mill Act 1714
Supported the concept tat mills were more important to the public good than damages to a few upstream landowners

14. Chapter 8: Water Allocation Law
Before 1200
Code of Hammurabi
Justinian Code
From 1200 to 1799
Spanish Water Law
English Water Law
From 1800 to 1847
Code Napoleon
Riparian Doctrine
Western U.S.
From 1848 to 1899
Riparian Doctrine
Prior Appropriate Doctrine
From 1900 to present
Groundwater Doctrines
Interstate Compacts
Selected River Compacts
Federal Reserved Rights

15. 1800 - 1847 Code Napoleon Developed in France after the revolution
Napoleon as emperor ordered compilation of existing laws
Provided for property ownership, individual rights
Defined basic water rights
Basis for development of riparian law in the eastern US
French influence strong in areas such as Louisiana

16. 1800 - 1847 Riparian Doctrine developed in eastern states of US Rights
Disputes often between mill owners, fishermen, and boat owners
Fishermen known to destroy dams to protect fishing areas
Rights
Extend to middle of stream
Navigable streams could not be blocked
Riparian property could have mills, transferable
Excess water must be returned, undiminished
Injured landowners must be compensated

17. Tyler v. Wilinson (1827) First riparian rights court decision in US
Supreme Court ruling on Rhode Island case
Riparian property owner does not own water
No one could remove water to the detriment of others
Owners are given the right to use water
This right is limited to reasonable use of the water
If the use is reasonable, then some damage to others is OK
The right of use is guaranteed, but not the ownership
This is called a usufructory property right

18. 1800 - 1847 More and more mills were developed as population grew
Crowded together at key locations where there was a drop in elevation
Mill owners developed joint water-use agreements
Flow measurements were important in allocating water

19. Figure 8. 3 This table of water power, contained in the 1880 U. S
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.

20. Western Water Law,
Dry weather made the riparian doctrine inappropriate.
Good farm soils were far from the river
The water use was consumptive
Some small irrigation by Spanish and Indians
Mormons expanded irrigation dramatically
Beneficial Use was the dominant doctrine
Water was not owned by individuals, but by society
The Mormon Bishop became the local watermaster

21. Brigham Young 1801-1877 Arrived in Salt Lake Valley in 1847
No man has the right to waste one drop of water that another can turn into bread
There 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.

22. Chapter 8: Water Allocation Law
Before 1200
Code of Hammurabi
Justinian Code
From 1200 to 1799
Spanish Water Law
English Water Law
From 1800 to 1847
Code Napoleon
Riparian Doctrine
Western U.S.
From 1848 to 1899
Riparian Doctrine
Prior Appropriate Doctrine
From 1900 to present
Groundwater Doctrines
Interstate Compacts
Selected River Compacts
Federal Reserved Rights

23. Riparian Doctrine Little change in law
Mill owners had developed elaborate system for sharing water

24. Prior Appropriation, 1848 - 1899 California Gold Rush 1848
Colorado Gold Rush 1859
Miners came from eastern US as well as Spain, Portugal, Mexico, England, and Wales

27. Gold Rush in Georgia Dahlonega area starting in 1828
Georgia miners moved west with CA gold rush
Mercury contamination of river sediments near mining areas is a result
Dahlonega Gold Museum

28. Prior Appropriation,
Gold Rush changed mining and water laws
California and Colorado were not states (they were Territories) and no property rights existed
Riparian Doctrine could not apply
Developed laws based on mining practices in other areas

29. Prior Appropriation,
Miners had to develop their own set of rules
Miners could stake a claim, which was for their use
Claim had to be filed at the mining camp or county
Miner had to work the claim, and could be taken if not
Water was provided as first in time, first in right
Claims could be bought and sold
Enforced by vigilante committees
Senior appropriators had first use, Junior appropriators came next

30. Figure 8. 5 This Connected Sheet from the U. S
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.

31. Prior Appropriation California became a state in 1850
Legislature declared both Riparian Doctrine and English Common Law applied to water rights
Irwin v. Phillips 1853
Gold miners could divert water from a stream under priority system, even though it hurt downstream users
Established the doctrine of prior appropriation

32. Prior Appropriation Based on priority dates
Doctrine allows diversion of water to land that is not riparian
Use of water limited to amount beneficially used
Water right can be sold, leased, or moved as long as downstream senior water rights are not injured

33. Prior Appropriation California Doctrine
Used Riparian Doctrine in humid areas
Prior Appropriation in dry areas
Hawaii, Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, and Washington adopted similar laws

34. Prior Appropriation Colorado Doctrine
Prior Appropriation applied everywhere
Arizona, Idaho, Montana, Utah, Nevada, New Mexico, and Wyoming adopted similar laws

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

36. Miner’s Inch
Old unit of water measurement used for allocating water (cfs now used most often)
Rate of flow through a 1 square inch hole
1 miner’s inch =
9 gpm in ID, KS, NE, NM, ND, SD, UT
11.2 gpm in AZ, CA, MT, OR
11.7 gpm in CO
12.6 gpm in BC

37. Chapter 8: Water Allocation Law
Before 1200
Code of Hammurabi
Justinian Code
From 1200 to 1799
Spanish Water Law
English Water Law
From 1800 to 1847
Code Napoleon
Riparian Doctrine
Western U.S.
From 1848 to 1899
Riparian Doctrine
Prior Appropriate Doctrine
From 1900 to present
Groundwater Doctrines
Interstate Compacts
Selected River Compacts
Federal Reserved Rights

38. Riparian Doctrine Since 1900
Basis of water law in 31 Eastern states
Principle of Reasonable Use
Can use any amount as long as they don’t interfere with the reasonable use by others
Can not store and release water if it causes harm
Damnum absoque injuria (harm without injury)
Principle of Correlative Rights
Riparian landowners mush share the total flow
No priority, use is proportional to waterfront length
During a drought, allocations are pro-rated so everyone receives a share
Newer issues related to type of use, permits – “regulated riparian”

39. Figure 8. 8 Fertile farm ground, like this land adjacent to the St
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.

40. Prior Appropriation Since 1900
Used by all states west of the 100th meridian
Right of use is based on historical use and priority
Expansion requires getting a Junior permit
Must be diligent in use
Any lapse in use and the right is lost
Some irrigators continue to use water even though they lose money in the hopes they can use it later
Must be a beneficial use
In stream flows are not a beneficial use
Development of water markets

41. 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.

42. Groundwater Doctrines
Groundwater was not understood, so laws are generally very unscientific in this area
Rule of Absolute Ownership:
Property owner had right to remove as much as wanted from their own property
Rule of Correlative Rights (Riparian, Appurtenant)
Doctrine of Prior Appropriation
Doctrine of Safe Yield
Users divided into groups, farms, mines, industries, cities
Each group had an appropriation.
Correlative rights hold within the group

44. Interstate Compacts
Not only do individuals need to share, but states and countries also need an appropriation doctrine
Examples:
Colorado River Compact, 1922
Niagara River Water Diversion Treaty, 1950
Deleware River Compact, 1961
Tennessee, 1955 (quality) and 1972 (quantity)
Alabama, Coosa, Tallapoosa (ACT) Compact, 1999
Apalachicola, Chattahoochee, Flint (ACF), ongoing

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

46. Figure 8.10
The Colorado River
Basin.

47. Figure 8.11 Watershed clipped to stream boundary.

48. Figure 8.12 Buffered stream and wells.

49. Figure 8.13 Wells subject to subflow ruling.

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

51. Summary Conflicts over water allocation have existed through history
Two main doctrines for water allocation have evolved
Riparian
Prior approrpriation
Laws are different in eastern and western states
Compacts between states have developed