Climate, Climatic Change, and Water Supply (1977) / Chapter Skim
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4. Climatic Change and Water Law
4. Climatic Change and Water Law
Pages 70-84
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From page 70... ...
Today's water laws are based on certain implicit assumptions about climate and water occurrence derived from observations of actual events. Our plans for water uses and projects are made in the light of predictions based on these observations.
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From page 71... ...
When claims upon it increase to the point that one person's use harms the other's or threatens the existence of the pool, or when shares in the pool become too small to be useful to anyone, man needs and enacts in one form or another laws that restrict the number of participants or that control or regulate their activity or that abandon commonality and carve up the resource into individual, identifiable, enforceable, and transferable property units. WATER RIGHTS The orthodox classification of American water law starts with a division into the eastern doctrine of riparian rights and the western law of prior appropriation.
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From page 72... ...
He can do this, or course, if his new use will have a higher productive value than the existing use. In practice, this means that cities and industrial users, which can afford to pay more for water than can most farmers, buy out the water rights of agricultural users.
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From page 73... ...
If a transdivide diversion is needed to bring water from a water-rich to a water-short area, in most states there are no restrictions on the necessary interbasin transportation. EASTERN WATER RIGHTS Riparian rights used to be the principal basis of water use in the eastern states, but this is no longer true.
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From page 74... ...
Even if it is not, there is nothing to prevent a group of riparians from settling their differences by contract and agreeing between themselves what is each one's reasonable share or reasonable use of the water.23 The major diversions from eastern streams are now those of municipalities, public utilities, metropolitan water works, and rural water districts, not those of the little grist mills and woolen mills that competed with farmers during the formative period of riparian rights. Municipal water rights arise not from riparian law but by virtue of the superior position given to these agencies by legislatively granted powers to take waters by eminent domain.
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From page 75... ...
Mississippi has a simon-pure prior appropriation law on the western model.32 The Florida law gives an elaborate machinery for planning the distribution of water during shortages by reducing withdrawals, restricting some uses, suspending permits, and if things get bad enough to be called an emergency, the plans are scrapped and an official steps in to apportion, rotate, limit, or prohibit water uses.33 The Kentucky statute empowers state authorities to handle a drought or emergency by balancing the water rights and available water between uses and temporarily allocate it and restrict withdrawals to serve "the best interests of the nublic."34 These laws were enacted in times of plenty when it seemed easiest for the legislators simply to put all water in the hands of a wise administrator with directions to distribute it so that it would do the most good and best serve the public interests. We may find, however, that that wise administrator takes on some aspects of a dirty bureaucrat when he decides, as he must, that the Smith family's potato farm must dry up while the Joneses' vegetable gardens continue to prosper or that both families must lose their investment and be deprived of their livelihoods so that their water may be given free to residents and commercial establishments in the city, and that the Apex Plastic Company may continue to pay dividends, while the Acme Canning Company goes bankrupt.
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From page 76... ...
The first real attempt at apportioning the supply came in the western states when irrigators began to withdraw very large quantities. The California courts evolved the reasonable-use rule into the "correlative rights doctrine": the user on overlying land has a better right than a person who takes the water to distant places, and as between themselves, the overlying owners have correlative rights, equal and proportionate shares.37 Most of the western states, however, following the lead of New Mexico, apply the law of prior appropriation to groundwater and have a single water law and set of procedures for both groundwater and surface water or have separate surface and groundwater codes that implement the basic priority doctrine with somewhat different procedures.38 When man places different types of elements on groundwaters with different physical characteristics, not all of these doctrines will reach the most desirable result.
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From page 77... ...
The city dweller is typically served by a public utility company or the municipality itself; the irrigator by a mutual company or some fo~lll of public district. The public utility, or public service corporation as it is often called, is a private firm organized for profit, but one that holds special privileges granted by the state.42 It has a franchise to use the public streets for its pipes, it usually has a monopoly, and it has powers of eminent domain that enable it to acquire water and water rights by forced sale, if necessary, upon payment of just compensation fixed by a court.
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From page 78... ...
The Bureau of Outdoor Recreation coordinates and develops programs under the Land and Water Conservation Fund Act for planning, acquiring, and developing outdoor recreation facilities; and the Bureau of Sports, Fisheries and Wildlife is a large water user in its maintenance of wetland habitat and irrigation of wild and domestic range for ducks and other wildlife.5t One major feature of federal water law is its superiority over state law. Federal projects are not restricted by limitations imposed by state law.52 Their water rights are superior to private appropriations or riparian rights.
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From page 79... ...
This the Court refused, and the states' share, whether fixed by decree, compact, or Congress, must include (and accommodate) water rights for all federal projects, federal reserved rights, and rights of the Indian tribes.63
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From page 80... ...
The flow of navigable waters is protected from private interference with the "public rights," the right to use the water for travel and carriage of goods. On the smaller streams sportsmen and pleasure boaters now enforce the public trust to protect values of recreation and conservation in waterways once used by fur traders in canoes or for the log drives of lumbermen.64 Several states have extended the notion of public water to nonnavigable waters,65 and some of the permit statutes establish minimum flows, which means that the stream legally goes dry long before it is physically dry.66 Western water law was always founded on the notion of beneficial use, and in this century the permit statutes commonly insist that each new use must be "in the public interest." Officials are beginning to recognize that something that causes more harm than it does good cannot be beneficial and cannot serve the public interest.
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From page 81... ...
81 THE DIRECTION OF LEGAL CHANCE Since the solutions to legal problems created by less water are either engineering or economic, a law Mat facilitates these solutions must paradoxically combine features of both certainty and flexibility certainty to encourage investments in projects and flexibility to permit shifts of water between users and uses. In the field of water rights this is really not too difficult, and the western appropriation, a definite, easily enforced but transferable right, comes close to filling the bill.
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From page 82... ...
The federal government has ample Constitutional powers for handling climatic change and drought. New federal projects and stepped-up programs will be
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From page 83... ...
The dislocation could be intensified if white owners of water rights are squeezed from the top by native-American claims and from the bottom by reduced stream flows. Some engineering solutions are possible where storage could firm up both white and Indian rights.
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From page 84... ...
U.S. Water Resources Council, Water and Related Land Resources: Principles and Standards for Planning, 38 Fed.
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