management are Bryner (2002) and the Produced Water Management Information System (PWMIS).1 Other references are cited where applicable.

WATER RIGHTS IN THE UNITED STATES

The legal framework for water rights substantially influences the management of all produced water in the western United States, including produced water from CBM activity and from conventional oil and gas production. This section briefly describes the basic water rights laws that are applicable to a broad range of produced water issues, including those specific to CBM activities.

Water rights and water allocation programs in the United States are primarily governed by individual states and tribes. No national water rights system exists. Generally, two divergent systems are used to administer water rights at a state level. Riparian water rights2 are more common in the eastern states. In the western states a system of prior appropriation water rights is generally applied and water rights are treated in a similar way to rights to real property: rights to water are established by actual use of the water and are maintained by continued use and need. Water rights in the western states thus can be conveyed, mortgaged, transferred, and encumbered independent from the land on which the water originates or on which it is used, as dictated by state-specific water management regulations.

Indian water rights are defined and governed by federal law that recognizes Indian tribes’ property and sovereignty rights to the water on their lands and water designated as reserved for tribal use into perpetuity. Most Indian water rights are based on Winters v. United States of 1908 (207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340).3 Application of this ruling, as with the principle of prior appropriation for the states (see below), has been affected by developments in tribal regulation, federal legislation, and case law during the past century.

Each state has its own variations on the basic principles of prior appropriation, depending on custom, culture geography, legislation, and case law (see Table 3.1). In general, a water right is established by obtaining an authorization for use of a specified amount or term of use of water, through a state-issued water rights permit. The essential elements of a water rights appropriation are the diversion of water from its principal source and its application to a beneficial use. A diversion may be made by merely removing water from its natural course or location or by controlling water that remains in its natural course. Irriga-

1

See www.netl.doe.gov/technologies/pwmis/index.html (accessed March 4, 2010).

2

A system of allocating water among those who own land that physically touches the water body is based on the principle that land owners have the right to make reasonable use of the water. The water may be used as it passes through the property of the land owner, but it cannot be unreasonably detained or diverted, and it must be returned to the stream from which it was obtained. See www.blm.gov/nstc/WaterLaws/appsystems.html (accessed March 4, 2010).

3

Available at supreme.justia.com/us/207/564/ (accessed July 8, 2010).



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