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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.

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Presentation on theme: "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."— Presentation transcript:

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 –Riparian Doctrine –Prior Appropriate Doctrine 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 –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.

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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 –Riparian Doctrine –Prior Appropriate Doctrine 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, 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

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13 English Common Law, 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 –Riparian Doctrine –Prior Appropriate Doctrine Groundwater Doctrines Interstate Compacts –Selected River Compacts Federal Reserved Rights

15 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 Riparian Doctrine d eveloped in eastern states of US –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 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. 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 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 –Riparian Doctrine –Prior Appropriate Doctrine 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, California Gold Rush 1848 Colorado Gold Rush 1859 Miners came from eastern US as well as Spain, Portugal, Mexico, England, and Wales

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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 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 Prior Appropriation,

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

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 –Riparian Doctrine –Prior Appropriate Doctrine 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. 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 100 th 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

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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


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