Chapter 2 | Chapter 2 |
CHAPTER
2. A TUTORIAL ON AMERICAN WATER
LAW RELEVANT TO OUR CASES
2.1
Introduction
It is
necessary to apply several bodies of law in order to determine how to resolve
the conflicts encompassed by our two case studies. In general, Tennessee follows the common law for matters
dealing with water. Despite this
fact, there are very few recorded cases in the state adjudicating water
disputes. Gaps in the common law
in Tennessee can be filled in by reference to decisions under similar common
law regimes in states within the Southeast region, and which have comparable
climate and similar variations of topography.
While it is impossible to predict with certainty the positions
Tennessee courts will take in the future on such undecided issues as
inter-basin transfers or the correlative rights of groundwater users, it is
likely that the courts will examine the decisions of similar cases in other
riparian states before rendering decisions.
There
are a few statutes dealing with water in the Tennessee Code.
These statutes modify the common law and provide some mechanisms for
state government to regulate water use. Several
federal statutes also are relevant. The
major river system in the state is the Tennessee River and its tributaries. This entire system is managed, under congressional mandate,
by the Tennessee Valley Authority. The
other major river system, the Cumberland River and its tributaries, is
regulated by the U.S. Army Corps of Engineers.
Both of these federal agencies have interests that support, and
occasionally override, state interests in the waters of the state.
To
provide a context for understanding the common law as it has developed in
Tennessee, this chapter provides an overview of American water law, as well as
a more detailed examination of riparian common law.
Chapter 3, meanwhile, discusses the features of riparian law as they
have been applied by Tennessee courts. We
will also examine how federal statutes and statutes passed in Tennessee and
neighboring states have modified riparian rights.
2.2
An Overview of American Water Law
States
that follow the common law doctrine which is used in Tennessee are called
riparian states. Riparian law
is the common law of surface water flowing in defined watercourses.
The word riparian comes from the Latin word ripa which means
stream. Strictly speaking, the
common law that governs groundwater is not riparian.
However, for simplicity's sake, when we refer to riparian law the term
is inclusive of both surface water and groundwater common law.
American
riparian law developed from English common law. The U.S. is unusual in that it follows two general systems of
water law. Eastern states are,
for the most part, riparian. Many
of these states have also adopted statutory modifications to riparian doctrine
and are thus considered "regulated riparian" states.
However, most states west of the Mississippi follow a system of law
called "prior appropriation." Prior
appropriation law has its own body of common law that has been codified in
both state and federal statutes.
The historical reasons for this dichotomy, and the specific features of prior appropriation water law, are both relevant to our inquiry because many legal decisions and resolutions of conflict over water in American law have been made in prior appropriation states. The feasibility (or lack thereof) of applying these precedents in a riparian state can only be judged if the differences between the two systems are understood. Thus, a brief review of these differences follows.
The
reasons for the development of two systems of water law in the U.S. can be
found in the history of the federal government's acquisition of the territory
west of the Mississippi; the conditions under which this land was settled and
acquired by private citizens; and the arid climate that predominates in this
part of the country. The courts
of the original thirteen colonies adopted, from English common law, a riparian
system of water law. At that
time, most of the land within the colonies was privately owned.
Land in the Northwest Territories and other frontier lands east of the
Mississippi River fairly quickly passed out of federal ownership and into the
hands of settlers. The courts in
these areas modified English riparianism to meet "the needs of an
American society."1
2.2.1
The Law of Prior Appropriation: Differences from Riparianism
Most of
the states west of the Mississippi River have been carved out of the public
domain. The public domain refers to land, mostly in the west, acquired
by the U.S. in treaties with France, Great Britain, Spain and Native American
tribes. Public rights to the
water on this land were initially complete, with the federal government having
both the common law rights of ownership and the sovereign rights of
regulation. Because of this, the
federal government had complete legal power to control the allocation of both
land and water in the west: "The overriding public land policy of the
nineteenth century was disposition, and western lands were given to railroads,
the states, and individuals under a variety of special grants and under the
preemption and homestead laws."2
When
large mineral deposits were found and exploited in the nineteenth century,
miners took whatever water they needed. Farmers,
ranchers and other settlers also needed water and took it from water courses.
When conflicts arose, "western state courts began applying the
'first in time, first in right' rule applicable among trespassers."3 The rule was eventually adopted legislatively and judicially
by both the federal government and most western states - thus was born the law
of prior appropriation.
As
Figure 2.1 shows, most of this western land has fairly low annual rainfall,
especially as compared to the eastern states.
As previously noted, the impetus for settling many areas in the west
was the discovery of valuable minerals. Gold
deposits discovered on lands in California and the Black Hills of South Dakota
brought large numbers of people to these areas hoping to make their fortunes.
Mineral mining usually requires vast quantities of water to wash dirt
from the ore and to move it to processing areas along flumes.
Most of the valuable minerals found in the west were not found on land
that bordered large watercourses. Water
was a scarce and valuable commodity in many mineral rich areas. Early miners sought sources of water both for mining and to
support settlement. As a result,
there developed a system of acquiring water rights that did not tie the use of
the water to the land from which it was drawn.
Water rights were quantified and prioritized. As we will see, these are features not found in
riparian law.
Not all
western states follow prior appropriation: "The prior appropriation
doctrine is the established rule for recognizing and administering water
rights in 19 states."4 These
include eight of the arid states in the central Rocky Mountain region and
Alaska which have adopted a "pure" version of the prior
appropriation doctrine. The nine
states bordering these mountainous states employ a mix of riparian and prior
appropriation doctrine in their water laws.5
The state of Mississippi, east of the river which bears its name,
adopted a form of prior appropriation for a short time but has since reverted
to a regulated riparian regime.
The rights under a prior appropriation regime differ from the
traditional rights under riparian law in the following ways.
First and most important, ownership of land is not the basis for the
appropriation water right. One can have a right to water from a watercourse or an
aquifer without owning land bordering or overlying the water source.
Even if the right to water has been acquired by purchase or other
means, water rights exist only when water is appropriated (diverted and used)
for a beneficial purpose. In most
states following the prior appropriation doctrine, beneficial uses are
defined, at least in general terms, by statute.
State statutes may provide for preferred uses so that certain water
uses are considered more beneficial than others.
An example of this is irrigation.
Although generally considered a beneficial use, certain kinds of
irrigation, such as overflow or natural flood irrigation, have been held to be
inefficient and thus, can be prohibited.6
When water is appropriated, the amount taken is a quantified
amount. There is no reasonable
use limitation; the extent of the water right is the amount that historically
was put to a beneficial use. The
holder of the oldest water right is entitled to full delivery of water.
If shortages occur there is no duty to abate use so as to share the
available amount with other appropriators, as there is among riparians.
Appropriators whose rights are senior may take their full water rights
even if the result is that there is not enough water left for junior
appropriators to take for their needs. This
approach can occasionally result in streams being pumped dry.
Although this is not illegal under prior appropriation regimes,
increasing concerns with environmental damage have caused some states to
require that minimum flows be maintained in watercourses, even if to do so
would impair senior appropriators' rights.
Because of this, prior appropriation states are moving closer to the
sharing that characterizes riparian regimes.
If appropriated water is put to a beneficial use, the water need not be
used on riparian lands. If the
use is beneficial, the land on which the water is used need not even be within
the same watershed. Appropriated
waters may be used any place, regardless of distance from the stream.7
When we discuss riparian law in the next section, differences
between the two doctrines will become more apparent.
The significance of these differences for our two cases is that certain
suggested solutions to water shortages, such as water marketing or water
banks, are feasible where parties have rights to a certain quantity of water
and those rights have seniority over other users of the same water source.
With a defined right to a certain quantity of water, a water
appropriator can transfer the right to that water to another entity at some
stated value. In riparian
regimes, by contrast, rights to water are not usually quantifiable and
withdrawal rights are modified by the equal rights of all others who have
riparian rights to the same source.
The climatological fact of aridity and the historical fact of
the land having been taken into private ownership by people generally staking
claims to it, rather than by purchase or device, make conflict over water in
prior appropriation states a frequent fact of life.
The region’s history also makes it inevitable that the federal
government has played a large role in the outcome of litigation resulting from
these conflicts. By contrast,
water is fairly abundant in eastern riparian states.
Conflicts occur but not as frequently as in the west; the federal
government has not often played a role in the conflicts that have arisen; and
water rights are tied to the ownership of land.
Contemporary
concern with water pollution and environmental protection have increased the
federal government's involvement in water conflicts arising in riparian states
in recent years. To meet the
requirements of federal legislation protecting water quality, riparian states
have passed their own legislation. The
result is "regulated riparianism."
This term refers to the modification of riparian rights by statutory
requirements for permits to discharge into water sources, standards for purity
of discharged waters, and, in many cases, requirements that permits be
obtained before riparians can withdraw water from watercourses and aquifers.
The next section outlined the general features of classic American
riparian law.
2.2.2
Major Features of Riparian Law
‘Past
is prologue,’ the Bard tells us. The
statement distills the essence of common law.
Years of human experience with conflict and its resolution are
encompassed in the decisions of our courts that are based on common law.
This is not to suggest that there is no wisdom embedded in legislation.
Instead, legislation is crafted over a relatively short period of time
by a small group, while common law develops incrementally over long periods of
time through the actions of many. When
great social and technological changes occur, the past may not provide
adequate guidance to solve present problems.
In this situation, it is the job of legislatures, and, to some degree
the courts, to craft new legal means of solving problems without unnecessarily
discarding the wisdom of the past that still applies.
The
common law of water, or riparian law, is very old.
Many of its features have their origins in the law that the Romans
brought to Great Britain more than two thousand years ago.
Riparian law has accumulated over many centuries of conflict.
Because water, unlike air, is available in only a few places, the legal
system of riparian rights responded to this fact by assigning rights to use
the water to those whose property touched, or overlay, the water source. Water rights are generally described as real property rights.
However "[a] riparian right is an incorporeal rather than a
corporeal right because one cannot possess the flow of a stream; one can only
use the water."8 The
right to use something in which one does not have a direct property right is
called a "usufruct."9
(1) The
important, overarching public rights in water are:
·
Water is
legally and historically a public resource.
Although private property rights can be perfected in the use of water,
it remains essentially public; private rights are always incomplete and
subject to the public's common needs.10
(2)
The resolution of conflicts between public and private users formed the basis
for the reasonable use rule.
·
The reasonable
use rule entitles each riparian proprietor to make reasonable uses of the
adjoining watercourse for the benefit of her riparian land.
Under this rule, a riparian's rights are not absolute, for other
riparians along the same watercourse also have an 'equal' right to make
reasonable uses of water.11
(3)
Public rights in water also include the theory of sovereign rights in water
leading to federal and state legislation limiting and describing water rights.
"[T]he idea of an incomplete property rights
expressed as a usufruct [was used] to justify the idea of correlative rights
among riparians. Courts then took
the next step and used the theory of incomplete property to justify
legislative regulation of water use.12
Under
common law, water is treated differently depending on whether it is on the
surface or underground and whether confined or diffuse.
The reasonable use rule applies to surface water:
Riparians have a right to make reasonable use of a
watercourse so long as such use does not interfere with reasonable uses of the
water by other riparians . . . . [E]ach riparian has a right equal to the
rights of other riparians along the watercourse. [The] rule requires harm to other riparians before a use can
be alleged to be unreasonable.13
(4)
The reasonableness test involves balancing the uses of one riparian against
those of the riparian claiming injury.
·
Strictly
speaking, a riparian has the right to use water only on, or for the benefit
of, the riparian land itself. A
non-riparian or off-site use is likely to be considered unreasonable if it
interferes with another riparian's use of the same resource.
If the off-site use does not injure another riparian's rights, only a
few courts have allowed the use to be enjoined.
On the other hand, off-site uses that remove the water to another
drainage basin are generally not permitted.
This is because, in inter-basin transfers, water is usually not
returned to the watercourse after use. In
short, the riparian expectation of the natural flow of the watercourse -
reduced only by other riparians' reasonable uses - is injured when there is no
return flow from others' uses. Along
a watercourse, the same molecules
of water may be withdrawn and used repeatedly.
Although some uses are completely consumptive; for most uses, including
municipal water supply, irrigation, and power production, water is cleaned or
cooled and returned to the watercourse either at a particular point (e.g., a
pipe) or by infiltration through the soil of land bordering on the
watercourse.
In
riparian law, much hinges upon the meaning of "reasonable," and it
is in the course of interpreting this word that the courts and the common law
derive much flexibility. The
courts will allow large quantities of water to be withdrawn from major streams
or bodies of water but lesser amounts from minor sources.
Other factors considered by the courts in determining whether a
particular use is reasonable include: the economic benefits of competing uses;
the time when each use began; the amounts of water needed by other uses;
adverse effects upon the other users; the amount of water wasted by use under
consideration; the length of time the water is detained and the route of
diversion; and such other factors as the court may deem relevant.
The Restatement (Second) of Torts lists the following as
traditional factors to be considered in determining what is a reasonable use:
·
The purpose of
the use of water.
·
Its suitability
to the water body.
·
Its economic
value.
·
Its social
value.
·
The harm is
causes.
·
Its potential
for coordination with competing uses.
·
Its temporal
priority relative to competing uses.
·
The justice of
imposing loss on the use.
The
doctrine of reasonable use does not apply to groundwater under common law.
The equivalent requirement of sharing is the doctrine of correlative
rights, as discussed below.
2.2.3
Groundwater and Riparian Law
Groundwater
is water confined in underground spaces.
The area so saturated and confined is called an aquifer. For groundwater, the "American rule," which allows
the owner of land overlying an aquifer to pump all that he is able to pump to
fulfill any of his needs, has been modified in almost all riparian states,
including Tennessee. Now,
groundwater rights are limited in most riparian states by the doctrine of
correlative rights. This doctrine
essentially holds that overlying landowners’ rights are subject to
consideration of the rights and needs of other landowners overlying the same
aquifer. The essential questions
in correlative rights disputes are: what right does a pumper have to a fixed
quantity of water; and what right does a pumper have to a fixed pressure
level?14
Legally,
the most difficult allocation issue is deciding how to assign common property
rights between prior and subsequent claimants.
The Restatement (Second) of Torts incorporates the protection of prior
groundwater users into the balancing for the express purpose of protecting
small, as against large, users.15
Section 858 provides that a landowner who withdraws groundwater and
uses it for a beneficial purpose is not liable for interference with another's
rights to the same groundwater source unless:
(1)
The withdrawal of groundwater unreasonably causes harm to a proprietor of
neighboring land through lowering the water table or reducing artesian
pressure;
(2)
The withdrawal of groundwater exceeds the proprietor's reasonable share of the
annual supply or total store of groundwater; or
(3)
The withdrawal of the groundwater has a direct and substantial effect upon a
watercourse or lake and unreasonably causes harm to a person entitled to the
use of its water.16
Recall
that water rights are property rights of a sort (i.e., usufruct). Under property law, if a person uses and controls property
for a period of years set by statute (often 20 years) knowing that s/he
doesn't own it but represents himself as owning it, then s/he acquires
ownership by prescription. Prescription
is a form of adverse possession. The
term is used when less than a fee simple is adversely possessed, as when a
right-of-way is obtained by use. In
riparian states, water rights can be obtained by prescription.
For example, if a riparian withdrawal continues for the statutory
period without complaint by other riparians, then courts will not later enjoin
the withdrawal because of late complaints by the adversely affected riparians.
Similarly, groundwater pumpers can obtain the right to pump at a volume
that may prevent other landowners on the aquifer from pumping all they want in
the future. If the pumper has
withdrawn the volume for an extended period, without complaint from the other
owners, the courts will probably not enjoin the use even if it can be shown to
violate the principle of correlative rights.
The
possibility of a riparian losing rights to water because of a prescriptive use
complicates litigation under riparian law.
Under the common law, which is tort or wrongdoing-based, a riparian
must show that rights have been damaged by another's use of the water supply
to get relief from the latter’s actions.
Thus, a withdrawal by one riparian may limit the future options of
another. Unless the second riparian can show actual damage, (in the
present, not just to future expectations) then continued use by the first
riparian may vest the excessive right. However,
under the reasonable use doctrine, if the use to which the water is put by the
first riparian is seen as unreasonable as measured against the conflicting use
of the second riparian, then it is likely that the courts will step in and
enjoin or limit the first use.
2.3
Conclusions
Riparian
water law assumes that supply will generally be adequate if demand is
restricted to reasonable uses on riparian lands.
“The determination of reasonableness involves an ad hoc
balancing process that considers a number of factors, including changing
economic and social values. A use
may be reasonable when in conflict with one use at a certain time but unreasonable
when in conflict with another use, or even the same use, at another
time."17 Thus,
reasonable use should always be understood with reference to the American
law's expressed preference for economic development leading to economic good.
The riparian doctrine is more responsive to changing
needs and more able to make case-by-case adjustments than is the appropriation
doctrine, at least in theory. Because
reasonableness is only vaguely defined and includes economic and social
values, water use may be shifted or altered to reflect new values and
concerns.18
Riparian
rights do not require extensive administrative machinery.
Disputes are generally resolved by existing courts.
However, judicial resolution of disputes is slow, expensive, and
inefficient, particularly when conflicts are frequent.
However, in riparian states in the past, the infrequency of disputes
has made the development of more elaborate machinery unnecessary.19
This has begun to change. In many regulated riparian states, administrative resolution
of disputes is facilitated by the requirement that permits be obtained before
water is withdrawn from a source.
Some
legal commentators have said that regulated riparianism represents a move to a
property rights system. The
rights represented by a permit issued under regulated Riparianism are not as
secure as are those represented by the prior appropriation doctrine.
They are limited in time and administrative officials retain
substantial discretion to alter permittees' rights.20
Moreover, the right to withdraw water is usually limited to owners of
adjacent or overlying land. The
riparian expectation of the natural flow of the water source, reduced only by
other riparians' reasonable uses is retained - even in the face of large
withdrawals by municipal supply systems - by discouragement of inter-basin
transfers. However, most
regulated riparian systems do allow vesting of uses, thus protecting riparian
owners from loss of water rights to new large users.
Endnotes
to Chapter 2
(1)
Laitos, Jan G. and Joseph P. Tomain, Energy and Natural Resources Law in a
Nutshell, West Publishing, St. Paul, Minnesota, (1992), p. 357. 311 Conference Center Building | EERC
Home | Feedback
| Search Entire EERC
Website |
(2) Robert E. Beck, Water and Water Rights, (Michie) § 37.01(a) pg.
217 (1996).
(3) Id.
(7) Laitos et al, p. 364.
(8) A. Dan Tarlock, Law of Water Rights and Resources (CBC) § 3.04[1]
Release #9, 3-10 (7/97).
(9) Black, Henry Campbell, Black's Law Dictionary, 6th
Edition, West Publishing (1990).
(10)
David Getches, Water Law in a Nutshell, pg. 10 (1990).
(11) Lynda L. Butler, Environmental Water Rights: An Evolving Concept of
Public Property,
(12) Tarlock, Law of Water Rights and Resources (CBC) § 3.02[1] Release #1, 3-5
(8/89).
(13) Laitos et al., p. 359.
(14) Tarlock, A. Dan, AGRICULTURAL LAW SYMPOSIUM, Supplemental Groundwater
Irrigation Law: From
Capture to Sharing, 73 Ky.L.J.695 (1984) p. 14.
(15) Ibid., Tarlock, p. 14.
(16) Restatement (Second) of Torts §858 (1979).
(17) Wright, Kenneth R, Ed., Water Rights of the Eastern United States,
American Water Works Association (1998), p. 12.
(18) Id.
Chapter 2
Knoxville, TN 37996-4134
Phone: 865-974-4251
Fax: 865-974-1838
