Presentation on theme: "Chapter 8: Water Allocation Law"— Presentation transcript:
1 Chapter 8: Water Allocation Law Before 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S.From 1848 to 1899Riparian DoctrinePrior Appropriate DoctrineFrom 1900 to presentGroundwater 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 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 topicsDuty of cautionMust pay if neglectful and caused damageBased on system of justiceModern 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 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.
7 Chapter 8: Water Allocation Law Before 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S.From 1848 to 1899Riparian DoctrinePrior Appropriate DoctrineFrom 1900 to presentGroundwater DoctrinesInterstate CompactsSelected River CompactsFederal Reserved Rights
8 Spanish Allocation Law Alfonso the Wise, Spanish King of CastileCreated Las Siete Partidas in 1263Water belonged to the crownIndividuals could obtain water through grantsDe minimus use was OKCharles I, King of SpainRecopilacion de leyes de los Reynos de las Indias (1516)Encouraged the sharing of irrigation water to increase useConcepts of beneficial use and equityDomestic 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 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
13 English Common Law, 1200-1799 Maryland Mill Act 1669 Encouraged construction of water millsEstablished 80-year leasesDamages had to be paid to injured riparian landownersMassachusetts Mill Act 1714Supported 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 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S.From 1848 to 1899Riparian DoctrinePrior Appropriate DoctrineFrom 1900 to presentGroundwater DoctrinesInterstate CompactsSelected River CompactsFederal Reserved Rights
15 1800 - 1847 Code Napoleon Developed in France after the revolution Napoleon 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
16 1800 - 1847 Riparian Doctrine developed in eastern states of US Rights Disputes often between mill owners, fishermen, and boat ownersFishermen known to destroy dams to protect fishing areasRightsExtend to middle of streamNavigable streams could not be blockedRiparian property could have mills, transferableExcess water must be returned, undiminishedInjured landowners must be compensated
17 Tyler v. Wilinson (1827) First riparian rights court decision in US Supreme 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 ownershipThis 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 elevationMill owners developed joint water-use agreementsFlow 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 riverThe water use was consumptiveSome small irrigation 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
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 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.
22 Chapter 8: Water Allocation Law Before 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S.From 1848 to 1899Riparian DoctrinePrior Appropriate DoctrineFrom 1900 to presentGroundwater DoctrinesInterstate CompactsSelected River CompactsFederal 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 1859Miners 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 rushMercury contamination of river sediments near mining areas is a resultDahlonega Gold Museum
28 Prior Appropriation,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 areas
29 Prior Appropriation,Miners 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
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 rightsIrwin v. Phillips 1853Gold miners could divert water from a stream under priority system, even though it hurt downstream usersEstablished the doctrine of prior appropriation
32 Prior Appropriation Based on priority dates Doctrine 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
33 Prior Appropriation California Doctrine Used Riparian Doctrine in humid areasPrior Appropriation in dry areasHawaii, Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, and Washington adopted similar laws
34 Prior Appropriation Colorado Doctrine Prior Appropriation applied everywhereArizona, Idaho, Montana, Utah, Nevada, New Mexico, and Wyoming adopted similar laws
35 User 1: 55 cfsUser 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 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 =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
37 Chapter 8: Water Allocation Law Before 1200Code of HammurabiJustinian CodeFrom 1200 to 1799Spanish Water LawEnglish Water LawFrom 1800 to 1847Code NapoleonRiparian DoctrineWestern U.S.From 1848 to 1899Riparian DoctrinePrior Appropriate DoctrineFrom 1900 to presentGroundwater DoctrinesInterstate CompactsSelected River CompactsFederal Reserved Rights
38 Riparian Doctrine Since 1900 Basis 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 mush 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”
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 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 useDevelopment 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 areaRule of Absolute Ownership:Property owner had right to remove as much as wanted from their own propertyRule of Correlative Rights (Riparian, Appurtenant)Doctrine of Prior AppropriationDoctrine of Safe YieldUsers divided into groups, farms, mines, industries, citiesEach group had an appropriation.Correlative rights hold within the group
44 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
45 Colorado River Compact 1922 Lee’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
50 Federal Reserved Water Rights Winters doctrine (Winters v. United States)Indian Reservation treaty in Montana 1888Downstream 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
51 Summary Conflicts over water allocation have existed through history Two main doctrines for water allocation have evolvedRiparianPrior approrpriationLaws are different in eastern and western statesCompacts between states have developed