Water Law

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INTRODUCTION

A. Overall themes in water law.

1. Blend of common law and statutes. This is one area of environmental law that leaves a great deal to
CL.
2. Water is both private property and a public good. This creates a lot of tension because people
who own it want to do what they want with it and the people who use it feel differently.
3. Changes rapidly to incorporate environmental issues and interests. Balancing of environmental with
economic.
4. This course is limited to fresh water. Salt water does not have the same value as fresh water.
5. Science plays a big part in water law.
B. Major water uses.
1. Domestic. Drinking, irrigation, dishes, laundry, etc. This area is treated differently than other areas.
It is put on a pedestal.
2. Commercial & industrial water use. This is of tremendous importance because many bizzes moved
here because of water supplies.
3. Ag. Crops and livestock. Use in the area is tremendous.
4. Mining. All types of mining require a lot of water. This is a smaller one.
5. The three major uses:
a. Energy generation. All energy generation is tremendously dependant on water.
b. Shipping. Shipping of goods and navigation. This is often a trump use.
c. Environmental uses. Aesthetics, habitat, etc. Hard to integrate this with other uses.
C. Water law. It’s kind of big deal out west because they don’t have it. Michigan only suffers from sporadic
shortages. However, the legal system cannot simply ignore water resources.
D. Course outline.
1. Riparian law. Surface water. Property owners adjacent to the body of water. This is what we study
for Michigan. Three weeks.
2. Western water law. Surface water. Premised on first in time, first in right. Very different then
eastern water law. Covered briefly- two weeks.
3. Ground water law. Major source of water and its use is increasing. An evolving area of the law.
4. Public rights to water. Environmental considerations run into competing water uses.
5. Most water resources are not contained within state boundaries. However, these resources are
not controlled by federal law.

RIPARIANISM

I. Riparianism. Under such a system riparians have access to water- those who own the land that abuts the water.
Litoral and riparian will be used interchangeably for this class although litoral usually refers to lakes.
A. Why use this system? Tradition (comes from English CL). Easy. Defining by real property ownership 
this is an area of the law where the law is very well defined (piggy backing). There is a fairness
aspect…arguments can be made both ways. If we give water use rights to the people who are adjacent to
the body of water, there is a built in efficiency related to the movement of water. It is not efficient to pipe
water for long distances. The most fundamental justification is that access must be limited somehow. If
everyone could access it, then the resource could potentially run out. The people living on the water have
also paid for it. Use of the water for recreation and aesthetic system.
B. Why not? Limits access. Fairness. Trespass. Fewer people can use it for economic development.
Sometimes wasteful. Elitist because it allocates resources based on who owns property.
C. What rights do you get?
1. Domestic uses. (sometimes referred to as natural uses; this goes on pedestal, absolute), artificial uses
(irrigation, manufacturing, recreation  this is considered _).
2. Recreation. In order to boat, you need the right to wharf. This is the right to surface water.
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3. Ownership. This is a sticky subject because owning land on water does not mean that you own the
water. There are circumstances where ownership is more absolute (i.e. you own all the land
surrounding the water) You, along with the other people on the body of water, have a use right
(usufructuary=right of use).
D. Reasonable use.
1. Natural flow doctrine. Prior to reasonable use, the natural flow doctrine applied. This meant that a
riparian could not do something to impact the flow of the water downstream. This worked when
the water was used almost exclusively for domestic use. The problem came with industrialization
because mills, irrigation, factories all need water and will alter the flow of the water…this
doctrine would have halted economic development. The exception would be for the last guy on
the line. Severely restricts the uses of upstream owners.
2. What is reasonable? The use of a riparian must be reasonable with respect to the correlative ability
of other riparians to make simultaneous reasonable use of the water course.
a. Martin v. Bigelow. (1827) Plaintiff built a mill that impacted the use of the water by a
mill downstream. Downstream owner uses self-help to take down the upstream gate.
Under the natural flow doctrine, the upstream mill’s use would not be permissible.
Instead the case applies English CL, stating that the upstream use is a reasonable use of
the water for the riparian.
b. Snow v. Parsons. (1856) Upstream user was using the stream for disposing of refuse.
Downstream owners complain. Using a stream for refuse was determined to be a
reasonable use. The amount of frontage does not come with additional rights.
Occasionally this consideration will slip in, but it is technically not a point for decision
making. Reasonableness is still informed by custom.
c. Pyle v. Gilbert. (1980) Plaintiff owned mill. Sued Defendant because he granted the
right to use the water to another, non-riparian, landowner. Plaintiff was there first.
Under GA law, the diversion is not permissible. Which use is more reasonable? The
case is remanded with a note that the use of water for irrigation is not per se
unreasonable. But you still cannot divert for non-riparian (off tract) use.
d. Joslin v. Marin Municipal Water District. (1967)There is a lot in this case that we do not
need to worry about, ignore California Constitution. Plaintiffs owned land downstream
of dam constructed by the municipality. Defendant is a government actor, and the
Plaintiffs sued alleging that the municipality condemned their land. This is common in
water law, this is a takings issue but it does not matter for the purposes of analysis. There
are competing uses. Downstream you have a gravel pit and the reduced flow of water
deposits less rock and gravel. Upstream there is a water plant. Not all beneficial uses are
going to be reasonable. Hence, deposit of gravel for commercial use is not reasonable.
There is an outer limit to reasonable use. Reasonable uses are protected, and reasonable
uses are balanced by other reasonable uses.
3. Evaluating these problem  Are you are riparian? Is the use reasonable? If so, how do you
adjudicate the competing reasonable interests of riparians.
E. Restatement 2d of Torts §850(a). Reasonableness of the Use of Water. The determination of the
reasonableness of a use of water depends upon a consideration of the interests of the riparian proprietor
making the use, of any riparian proprietor harmed by it and of society as a whole. Factors that affect the
determination include the following:
(a) The purpose of the use,
(b) the suitability of the use to the watercourse or lake,
(c) the economic value of the use,
(d) the social value of the use,
(e) the extent and amount of the harm it causes,
(f) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or
the other,
(g) the practicality of adjusting the quantity of water used by each proprietor,
(h) the protection of existing values of water uses, land, investments and enterprises and
(i) the justice of requiring the user causing harm to bear the loss.
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1. Applying the factors. Factors A, C, D have nothing to do with water, but rather competing societal
values; it often comes back to these factors. Put these questions at the back of the list. You may
lose on factors B, E alone if you want to use almost all of the resource. Then look to factors F
and G. Out West, factor H is very important (maybe even the factor), still relevant and important
in the East. Factor J last. The application of these factors differs from state to state. Purpose of
the use, suitability of the use, economic value of the use, social value of the use, the social value
of the use, the extent and amount of harm it causes, the practicality of avoiding the harm by
adjusting the use, the…get the rest of these factors off of page 57 and 58.
a. What constitutes harm? Some harm does not mean harm for the purposes of water law.
As a riparian, you are not protected from any loss in property value due to another’s use
of shared riparian rights.
b. Remember, natural uses are favored over all others. When looking at ag uses, think of
factor F because this is always an option.
c. Frontage is not a factor under the Restatement and this is tough to ignore.
d. There is nothing in the R.2d that says that a stream or river cannot be fully appropriated
in the aggregate. However, state law may come into play in order to limit the other uses.

F. Riparianism in Michigan: Michigan Citizens for Water Conservation v. Nestle.

1. Three ways of evaluating surface water uses: (1) Prior Appropriation (not used in Michigan) (2)
Natural flow (old doctrine), (3) Reasonable Use.
2. Reasonable Use in Michigan. Any and all reasonable uses are permissible provided that tit does not
interfere with other riparian reasonable use.
a. You cannot recover for injury that is incidental to the reasonable use of another riparian.
b. Reasonable use will be determined on a case by case basis.
c. Diversions to non-riparian lands will be considered per se unreasonable.
d. Natural uses are preferred to artificial uses.
e. Competing uses are settled through balancing of the interests. Look at the factors set
forth in Dumont:
i. Purpose of the use. Artificial or natural.
♦ Natural uses are those necessary for the existence of the user(s).
♦ Artificial uses merely increase one’s comfort.
ii. Suitability of the source for the use. Look at the nature of the water source (i.e.
size and the other uses).
iii. Benefits of the use. Economic (jobs, costs) and social (fishing, navigation,
conservation, etc.).
iv. Extent/amount of harm. The application and the impact on the quantity and
quality of the water
v. Necessity of the amount of harm. Is there something else that the party can do
to minimize the impact.
vi. Any other factor that may bear on the reasonableness of the use.
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II. Surface Usage on Artificially Created or Enlarged Waters.
A. Natural bodies water. A riparian has the rights to all the surface water. The right is absolute and shared by
all.
B. Man Made Lakes. A different rule applies to the surface water in a manmade lake. The right to use the
surface is not automatic on a man-made lake. See Anderson v. Bell. Anderson lived downstream from
Bells, he had an easement to flood the land. Bell lives upstream and holds the rights to beneficial use;
however, Anderson can discontinue use at any time. Anderson floods and then Bell uses the property.
The lower court applied the same principles as applies to natural bodies of water and finds for Bell. The
Florida Supreme Court reverses holding that the same rule does not apply to manmade bodies of water.
Two reasons: investment expectations and protecting property rights because Anderson retained the right
to discontinue flow.
C. Lake Levels. See Glen Lake-Crystal River Watershed Riparians v. Glen Lake Association. Courts set the
level of the lake at 596.75 inches. The level of the lake was controlled by a dam at the mouth of the
Crystal River. The Crystal River Ripahrians are looking to protect their property rights in terms of
maintaining a flowing river; they want to mimic the natural flow of the river- higher in the summer and
lower in the winter. The Glen Lake Ripiarians want to maintain static levels in the lake. The trial court
found for the plaintiffs (Crystal River Riparians). On appeal, the Michigan Court of Appeals upheld the
trial court.
1. MCLA 324.30707(4). Lists factors to be considered in determining normal lake level. Why isn’t this
statute given to the agency in this case? The judgment setting the level of the water predates the
case. THIS IS IMPORTANT BECAUSE THE EXAM FACT PATTERN WILL BE IN
MICHIGAN.
(4) In a determination of the normal level of an inland lake, the court shall consider all of the
following:
(a) Past lake level records, including the ordinary high-water mark and seasonal fluctuations.
(b) The location of septic tanks, drain fields, sea walls, docks, and other pertinent physical
features.
(c) Government surveys and reports.
(d) The hydrology of the watershed.
(e) Downstream flow requirements and impacts on downstream riparians.
(f) Fisheries and wildlife habitat protection and enhancement.
(g) Upstream drainage.
(h) Rights of riparians.
(i) Testimony and evidence offered by all interested persons.
(j) Other pertinent facts and circumstances.

III. Municipal Water Supply in Riparian Jurisdictions

A. Using eminent domain to secure municipal water supplies. There is no per se rule against municipal use
of riparian resources. There are a lot of different uses lumped together in “municipal uses.” Think of
municipal supply as a method of delivery rather than a use. The solution to these is sometimes eminent
domain. I.e. condemn the water rights and compensate the owners; sometimes the government will
simply condemn the property  the new constitutional amendment may impact the taking of property to
increase municipal supplies because it limits takings to public use.
1. Hudson River Fisherman’s Association v. Williams. You need a permit to take this amount of
water. A trigger system of issuing the appropriate permits was set up based on the anticipated
water use. New York statute requires public necessity in order to get a permit to take the water.
The Association’s argument is straightforward: The fishermen are saying that there is no current
need; public necessity is required under the New York statute. OTOH, the government does not
want to wait until there is a shortage to increase capacity. The court gets around the requirement
by saying that the DEC does not need to wait until the need is dire need order to expand capacity.
Another reason is agency deference; the agency’s decision was not arbitrary and capricious given
their expertise and the long list of factors considered by the agency.
B. Inter-basin diversion to provide municipal water supply. Often cities don’t have enough to meet demand.
A water basin is a river and surrounding area where water drains into the river. A river has two ridges on
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either side, all water in between drains into that river, beyond the ridges flows into another. So inter-basin
diversion is someone in one basin taking from another. Usually such transfers involve environmental law
and administrative law issues.
1. Challenges of challenging. These usually require administrative approvals for the building of dams,
etc. Once the agency approves the project there is an issue of agency deference because the S/R
is arbitrary and capricious.
a. North Carolina v. Hudson. Virginia Beach wants to draw water from Lake Gaston,
which is on the other side of the state. The Army Corps of Engineers approves the
project but a group of plaintiffs challenge the project claiming that the environmental
review was inadequate under NEPA and the corps regulation. Plaintiffs claims the study
was flawed, there will be damage to the environment and that there is not a need for
increased water supply. (The Army Corp of Engineers and the Bureau of Reclamation do
basically the same thing, the army corps of engineers builds water infrastructure). The
APA applies  Agency deference
b. City of Virginia Beach v. Champion International Corp. City of Virginia Beach filed a
class action seeking a declaration that the project would not infringe the rights of
Roanoke System riaparians. The filed a complaint that was later voluntarily dismissed.
Legal theories: Because the water being captured is flood water (artificial source); there
is no downstream claim to the water. Not an unreasonable use. The problem with dec
judgment is that forecloses the future rights of others  this is generally not a good
remedy in a riparian jurisdiction. There is a problem with using a class action where two
paper companies (who are probably unreasonable users) represent all the other riparian
users.
IV. Drainage.
A. Traditional Approaches. In the East, there are two traditional approaches to dealing with diffused surface
waters, which include drainage.
1. Civil Law Approach. Under civil law, any diversion was a tortious act. This is a very restrictive
rule, so it has been modified to permit alteration in the flow diffused surface waters, especially if
the resultant damage to affected parcels is slight.
2. Common Enemy Doctrine. This doctrine stems from the idea that a property owner owns his
property from the heavens to the center of the Earth. This doctrine views surface water as the
common enemy of all landowners and says that landowners should do whatever they can to
protect their land from surface water.
a. Haviland v. Argyelan. Excess surface water cannot be projected on to your neighbor’s
property  this is the rule in Indiana doctrine. Under this doctrine it is not unlawful to
accelerate/increase the flow of surface water on to your neighbor’s property.
B. Modern Approach. About half of states have moved from the civil approach to the reasonable use rule.
This is not the same reasonable use rule that governs accommodation of riparian interests. This approach
centers on the reasonableness of the defendant’s conduct is reasonable in view of all of the circumstances.
Landowners are entitled to reasonable use of their land and just because that use causes damage to
another’s property will not allow the aggrieved landowner to recover. Flexible but unpredictable.
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PRIOR APPROPRIATION

Introduction to Prior Appropriation: This is the law in the west where there is less water. California and Nebraska use
a blended system. PA is often part of the state constitution. This is often administered by agencies (except Colo.; they
still have a court). Competing interests are adjudicated by first in time, first in right. Remember, in a appropriation the
USE has the right rather than the USER.
I. The Basics of the System
A. There are four key elements to appropriating water in the west:
1. Unappropriated. It cannot belong to someone else.
2. Natural stream. It cannot be ground water, runoff, drainage, lakes, etc.
3. Use. The water must be used outside the stream (diversion). This is changing somewhat.
4. Beneficial use. Non-wasteful, due diligence.
B. Abandonment. When beneficial use ceases this is abandonment. You
C. Return flow. When water is used on the land, some will return to the stream. This results in a situation
where a downstream junior user is able to get water when upstream less junior users are not. OTOH, you
do not know that the discharge will go back into the river. The may also change the use of the water so
the amount of water being returned will decrease. See graphic on page 128. If you were going to buy
property, number 5 would be a risky investment. Assuming 1 was not for sale, 2 would probably be the
most certain.
II. How the system is administered. Modern appropriation law incorporates complex administrative permit and
management systems in all states except Colorado. The oldest rights are the most valuable.
III. General Adjudications and Paper Rights. In the old days….in the event of controversy, a lawsuit was filed and the
claims of competing appropriators were worked out by the evidence adduced in the lawsuit. Statutes authorized
general adjudication to divide up all the rights to all the water in the basins.
A. Mutual ditches. A mutual ditch company is where several users use the same ditch under the same
appropriative right.
B. Storage Rights. As streams were fully appropriated, reservoirs were constructed to hold winter flows so that
the stored water for irrigation  these were storage rights and were governed by the principles of prior
appropriation.
C. In the matter of a certain petition for adjudication of rights to use water. Here we have several ditch
companies (these are treated as a single use), and the court is adjudication the use rights. This would be
much more complicated in a riparian system because you would need to figure out how the water was
being use.
D. Problems with the system. People over-claim water. Subject to collateral attack. Often inaccurate.
Sometimes created “paper rights”  refers to the idea that people call more water than they actually use
so you own more rights than are actually available. Owners may not zealously defend their rights every
time there is a dispute. This support the administrative permit model.
IV. Where appropriation applies. Prior appropriation is only used to divvy up surface water; NOT groundwater.
V. Western Water is State Constitutional Law.

Acquiring Appropriative Rights: There are four elements to show appropriation:

I. Unappropriated water. In the good old days it was easier to do this. Today, whether there is any unappropriated
water in a stream is determined by an administrative agency.
II. Natural stream. A natural stream is defined as a stram of water flowing in a definite channel, having a bed and sides
or banks, and discharging itself into some other body of water. The flow of water need not be constant, but must
be more than mere drainage occasioned by extraordinary causes, there must be substantial indications of the
existence of a stream, which is ordinarily a moving body of water.
III. Diversion. Does the appropriator need to exercise physical dominion over the water to claim it? In California, yes.
Other states, no.
A. In-stream uses. Using the water outside the stream for an economic purpose is a key part of the western
system. The problem is that this works to a disadvantage to recreational uses because in-stream is
abandonment.
1. Problems. Instream uses present a number of questions:
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a. Prove it. How can the owner of instream rights prove that that they are using the water
for an instream use and the amount?
b. Whose rights? If it is in the river, it is being used by fish not people. Some people think
this is putting the wildlife before people.
c. Econ ripple. If ranchers sell out, bizzes that serve ranchers go under.
d. Speculation. Allows people to hold water rights without using them when the value is
low and then sell those rights when the water is worth more. The continuous use rule was
meant to deter specutlation.
2. Solutions.
a. State established minimums. The state establishes a minimum stream level and all have
to reduce use to maintain the level. This is unpopular and may constitute a taking.
b. Market approach. Sell the rights to the highest bidder. But still, is the water being put
to an economic use? What about speculation? Boyd says that there should be a limited
market approach  water can only be sold back to the owner who sold it.
IV. Beneficial Use.
A. Quantum of Use. BU is the measure and limit of an appropriative right. The right vests when the water is
actually applied to use. How is it measured?
B. Right to Quality
C. Permissible & Non-wasteful use.
D. Waste.
1. Shupe.
2. Tulare Irrigation Dist. v. Lindsay Strathmore Irrigation Dist.
3. Erickson v. Queen Valley Ranch Co.
4. Encouraging salvage.
a. State Dept of Ecology v Grimes.

PERMIT SYSTEMS & ADMINISTERED WATER REGIMES

I. Administration of the permit system.

A. Arthur Littleworth & Eric Garner: California Water.
1. Conditions of the permit. (1) There must be a specific applicant or user (2) The applicant must file
an application with the Board, (3) The applicant must intend to put the water to beneficial use;
and (4) There must be enough unappropriated water to supply the proposed use.
2. Available for appropriation. (1) water which has never been appropriated; (2) water which has
been appropriated and subsequently abandoned after the appropriator failed to put it to beneficial
use, and (3) water which, once it has been appropriated, flows back into an underground channel
or any surface water body.
3. Protest. If a protest is filed, an administrative hearing is held.
4. Writ of mandate. Parties may seek a writ of mandate within 30 days of the state board’s decision.
5. Beneficial uses: factors.
a. Domestic use
b. Irrigation
c. Power
d. Frost protection
e. Municipal
f. Mining
g. Industrial
h. Fish and wildlife preservation and enhancement
i. Aquaculture
j. Recreational
k. Water quality
l. Stock-watering
m. Heat control
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6. Beneficial uses: requirements. (1) Diversion; (2) Water must available for the applicant’s use.
II. The Public Interest Standard
A. Acquisition of water rights.
1. Center Delta Water Agency v. State Water Resources Control Board. DW wants to sell water; has
not found a buyer yet. Permits limit the amount of water that may be taken until they have a
buyer. Two principles govern here: (1) The right to use water is limited to the amount
reasonably required for the beneficial use to be served and (2) The right to use water does nor
extend to waste or unreasonable use in the amount of discretion. The applications fail to meet the
beneficial use requirements because there is no buyer.
2. Shokal v. Dunn. Trout Company sought to appropriate 100 cfs of water from Billingsley Creek.
Permit was issued. Plaintiffs sought judicial review. Under Idaho law if the appropriation
conflicts with the public interest. Another law declares it in the public interest to be protected
against the loss of water supply and protect minimum stream flows. The court looks at several
factors in determining the public interest. The court uphold the district court decision holding
that the issuing agency had not properly considered what was in the public interest. Factors:
a. (1) the benefit to the applicant resulting from the proposed appropriation;
b. (2) the effect of the economic activity resulting from the proposed appropriation;
c. (3) the effect on fish and game resources and on public recreational opportunities;
d. (4) the effect on public health;
e. (5) the effect of loss of alternate uses of water that might be made within a reasonable
time if not precluded or hindered by the proposed appropriation;
f. (6) harm to other persons resulting from the proposed appropriation;
g. (7) the intent and ability of the applicant to complete the appropriation; and
h. (8) the effect upon access to navigable or public waters
B. Area of Origin: Is the water more beneficial to the place where its going ot where it came from? This is
similar to the idea of riparianism. People are concerned about water being taken out of the locality to
other areas. There is an economic element- water is essential to development. Also, property- people buy
property next to the water; they make a choice to be where the water is and they do not want it to be taken
away. There are emotions tied to the water in the area.
1. Owens Valley. Urban areas like LA want water from Mono Lake in the Owens Valley. Problems
with this:
a. Unlike other resources, exporting water does not create jobs in the area where the water is
being taken out of.
b. Don’t want to set a precedent of sending water out of the area.
c. Perceived beneficial uses.
d. Sense of ownership of the water because it is in the area, not because you actually own it

WATER MARKETS

I. Pros and Cons of Water Markets

A. Pros:
1. Allows for allocation to adjust to changing water demands water conditions, and technologies.
2. Rapid allocation.
3. Promote conservation.
4. Reduce contaminated return flow
5. Allows for in-stream uses
B. Cons.
1. Speculation
2. Monopolies
3. Profits from a public need.
II. Legal oversight of water transfers.
A. The application process.
1. Must apply for permit when changes are made to the point at which water is diverted from a river, the
times of the year when diverted, the places used, or the nature of the use.
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2. Fill out application informational reports
3. Place notices in the local newspaper.
4. Hearing
5. Ruling
6. Appeal
B. Protection of junior appropriators – a common objection.
1. No harm rule. Followed in many western states. A proposed change will only be approved if it will
not injure other appropriators (junior or senior) or is conditioned in a way that avoids the injury.
Junior appropriators are protected as to quality as well as quantity. Why? Equitable.
a. Return flow. Consider the return flows as this impacts the no harm rule. If a senior
appropriator is using water inefficiently but then begins using the water efficiently this
will harm the junior appropriator  A way this can be handled is allowing the transferee
to only use a certain amount of the water flow it actually purchased so that the total return
flow is unchanged from the amount before the transfer.
b. Rules of Recapture. The law permits water users to to recapture runoff before it
reaches a natural stream even over the objections of a neighbor, who has been using the
seepage water. Water importers can recapture their own return flow even if it reduces
injres junior approrpiators.
2. High Plains A&M v. Southeastern Colorado Water Conservancy District. High plains petition to
change use from irrigation to any one of 50 other uses was denied b/c the use was so “nebulous
and expansive” that it was impossible to tell if other users would be harmed and they were such a
big change that it was essentially a new right and so violated the state’s anti-speculation doctrine.
Findings of Colorado supreme court:
a. Speculation. The point of the anti-speculation statute is to ensure beneficial use.
Requiring an application for change in type, place, or time of use is to ensure a beneficial
use. The user had a huge apportionment and used it for many purposes, it was a
cooperative water user. SO it submitted one report to the board outlining all the changes
in its uses. But the uses were very imprecise and general, no beneficial use was
specifically pointed out or even area of use. This kind of application would easily
circumvent the anti-speculation doctrine.
b. Colorado has a no-injury rule. Entity must show that there will be no injury.
c. Person petitioning for change must name a specific use and must show a vested
interest in the property where it is now to be used  Not present here because they
list so many different things that the water may be used for, this is not a municipal use.
They don’t know where the water is to be used.
C. Historical use. Another frequent objection to transfers is that the seller has not historically used his full
water right/ been wasting water. The argument here is that the user has abandoned their right by not using
it.
D. Streamlined procedures and exemptions. The Model Water Transfer Act proposed distinguishing bt shot
term and long term transfers. Short term transfers would have an expedited review process. For LT
transfers there would be a presumption of no harm and the protester would have the burden of proving
harm.
E. National Academy of Sciences: Small communities have different effects due to water transfers. Need a new
approach. Either they are left to the vagaries of the market or invent artificial buffers for the rural
communities that don’t really address the development needs of these communities. The elimination of
agricultural uses creates a lot of measurable effects (loss of farm jobs…) and difficult to measure effects
(population loss, loss of income…of non-farm income). Buyers are purchasing all kinds of properties just
for the water rights. There is a clustering effect with purchases clustering around aqueducts that create
economic loss. Also, when this land is reverted to non-agricultural use, there is a negative environmental
impact. This is all referring to transfers out of the area of origin.
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PROTECTION OF EXISTING WATER RIGHTS

Water rights are also subject to various limitations such as reasonable nof use that might reduce the investment back
expectations.
I. Statutory Abolition of Unexercised Riparian Rights.
A. Takings Challenges. This issue arises when the government changes the laws regarding your property in a
way that impacts your rights to use the property. When does it become a taking?  Uncompensated
rescission of unexercised water rights by statute was held constitutional by Oregon Supreme Court and
the Ninth Circuit, Kansas, SD, Texas.
1. Franco-American v. Okalahoma Water Resources. OK changed their water allocation system.
They enacted a statute terminating unused riparian rights. They limited unused water to (1)
domestic water, and (2) any pre-existing beneficial use. It asldo give riparian owner the
aopportunity to perfect all beneficial uses. 20 years later, the city tries to appropriate the water.
They are not riparian. The riparians sue alleging that their property has been taken in violation of
the OK constitution. The OK Constitution defines a taking as a taking of a valuable interest.
This is a broader standard than that of the US Constitution. Held: (1) Owners have a vested right
in reasonable use. (2) It is a taking to allow appropriation of all other water.
a. Dissent. Reif: Simply defining the scope pf the riparian right; future/prospective rights
to use the water are not vested. Lavender: Riparians do not own the water in a stream;
they hold a usufructary right to the water. (1) Not a vested property right, they can’t say
that they were going to use the water in x future date for x future use, there is not
certainty associated with it; (2) Assuming it is vested, rights may be subject to reasonable
limitation; (3) This is like zoning.
b. Alternative to enacted legislation. Pay for it. Codify reasonable use  they cannot
complain because they only have the right to reasonable use.
B. Avoiding the Constitutional Issue.
1. In re Waters of Long Valley. Plaintiff, a riparian, claims that he has the right to water to irrigate
2.8k acres, though he only has been using 89 acres. In California, a riparian landowner has
historically possessed a CL right to the future use of water in a stream system. Plaintiff claims
that the legislature cannot limit the future use under Tulare (held that a statute defining non-use as
abandonment as violating the Cal. Constitution). Held. This is a permissible action: The gov’t
can define prospective rights. Why? (1) Public Policy, uncertainty concerning the rights of water
users has pernicious effects; (2) State cannot administrate a water system if they don’t know what
people own. However, the court does not want to conclude that the Board may altogether
extinguish future rights. Remands for a determination of whether there are less drastic measures
that may be taken.
II. Takings Challenges to Other Legislative Changes
A. Sax. Any change to existing law can impact vested rights. While this might be a taking, it is necessary.
B. The Oregon Model. Every time water rights are transferred, the state takes a 25% cut. This is not a taking,
it’s like a tax.
C. Analyzing takings issues. Ask (1) Physical or Regulatory Taking. Physical invasions are always
compensable. (2) If it is regulatory, then ask if it compensable. When is it compensable? When the
regulation so greatly diminished the value of the property that it is no longer economically viable.
1. Court are generally deferential to the state of this type of legislation. Courts have rejected the
following takings challenges:
a. Requiring holders of water rights that are not part of the state’s administrative system to
register right w/ the state. Department of Ecology v. Adsit (Washington)
b. Retroactively applying forfeiture statute to invalidate water rights. Town of Eureka c.
Office of State Engineer (Nevada).
c. Requantifying water rights using different units than previously used. McDonald v. State
(Montana).
2. According to Sax, there are only two ways to win a takings argument: physical invasion or deprive
of all economically viable uses. Look out for these situations  may be a takings issue:
 Water Law
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a. The release requirement. The regulation most likely to be challenged are those that
require existing appropriators to make releases in order to augment stream flows.
b. Waste reduction. Cut back on existing wasteful uses.
III. Judicial takings. A judicial taking is where a court doesn’t follow precedent arguably changes water law. Court says
its not a taking b/c the law was misinterpreted. A court decision can amount to a taking, it is a state actor, it can
count as a regulatory taking. Shelley v. Kraemer. It is impossible to find b/c courts don’t generally change their
own decision (who will they appeal to), also judge interprets current law, the court just said what the law is and
what rights actually existed.
A. McBryde Sugar Co. v. Robinson: Dispute between sugar growers. System of carrying water out of the
watershed and to the sugar fields. Hawaii Supreme Court held that the right to water was specifically
reserved to the people of Hawaii for the public good and that the water could not be transferred. IOW, the
water rights were appurtenant to the land and could only be in connection with the parcel where the water
was found. Argues this holding was a taking because it was a drastic departure from what the law was
expected to be. We will not be tested on Hawaii water law but this case illustrates how a judicial
decision can constitute a taking.
IV. Groundwater. Under what rules can you have a taking? R2d Reasonable Rule. Correlative Rights. Maybe
American Reasonable Use…depends on whether on or off tract. Never under the Rule of Capture.

GROUNDWATER WITHDRAWAL

I. Hydrogeology and informational limits.

A. Basic principles of hydrology. Space below the surface of the Earth store GW. The GW move but it
move slowly. Water filtrates through the surface and the force of gravity pulls it to the confining bed – a
impermeable layer. The area where the water collects is called the zone of saturation.
1. Unconfined v. Confined Aquifers. An unconfined aquifer from the top down a permeable surface,
the water table, confined by a confining bed. A confined aquifer is surrounded by impermeable
material. The water level in a confined aquifer is measure by the potentiometric surface
(pressure).
2. Connected Streams v. Unconnected. See plaintiff 399-400. Some streams are connected to the
water table. Others are above the top of the water table. There are two types of connected
streams: losing and gaining. Losing streams seep into the water table. Gaining streams are the
opposite.
3. Cone of Depression. When a well is sunk it creates a cone of depression. The cone of depression in
an unconfined aquifer is smaller and expands slower than that of a confined aquifer. As the cone
of depression expands it may result in well interference.
4. Well Interference. As groundwater is withdrawn through a well, the water level in the well declines
and water moves from the surrounding aquifer into the well. As the cone of depression from the
well expands it can adversely affect the ability of other wells to draw water.
5. Subsidence. Generally occurs because the force of gravity combined with the lower of the water
level in a confined aquifer.
B. Three main ways of gathering info. (1) Inject fluorescent dye or other tracer into the GW (2) Pump
groundwater from centrally located well and observe through observation wells (3) Examine samples of
water taken from the individual wells and use surface and geological observations to draw interference of
aquifer characteristics. Also…Groundwater modeling.
II. The Law and Groundwater. There is not a lot of good data on ground water on the macro level. You can use test
wells to monitor. On a micro level, the cost to do the investigations necessary to do win a civil suit is sometimes
cost prohibitive.
A. Percolating waters, i.e. the natural occurring artesian wells.
B. Hypothetical. Before E comes along, O will be digging deeper than P so problems may occur depending on
how close to eachother, total water pumped greater than recharge. E enters into k with water bottler. How
to split 3 ways and still have it replenished: Base line principle—can’t pull more water than that being
recharged and can either tell E not to pump at such a depth or have to pay to deepen the other wells
(common equitable relief, party that’s less sympathetic make them pay).
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C. The Five Doctrine of Groundwater Law
1. Rule of Capture. Rule of non-liability; too bad. DO NOT confuse with the priority/first in time.
You take it and it is yours. It is essentially self help. There is no reason to sue in a Rule of
Capture state.
a. There are three dispute resolution principals that we can use:
Dispute Resolution Principle No Connection to Land On-tract Use Only
Capture Absolute Ownership American Reas. Use
Priority Prior Appropriation -
Sharing R. 2d Reasonable Use Correlative Right
b. Sipriano v. Great Spring Waters of America: There is one exception to the TX Rule of
Capture: land subsidence. This causes a lot of uncertainty, though it claims to be pro-
development.
2. American Reasonable Use Rule: This is basically the same as the rule of capture BUT the water
must be used on the overlying land. This is very important for the exam. REMEMBER
reasonable use here has NOTHING to due w/ riparian reasonable use. It’s either on tract or off
tract. It’s also not really determined by the actual location of the aquifer; it’s about the property
where the well exists. Once you build a pipeline that takes water from your well to a use that is
not on your property you have broke this rule. If there are competing uses in correlative rights
state, the courts will probably apply the R.2d § 858 to determine what the “fair and just
proportion”
a. Martin v. City of Linden. City purchased land in order to use the groundwater for the
municipal water supply. They had been buying water from another municipality because
their original supply was contaminated with saltwater. Owner of property located on the
same aquifer sued, saying that that the purposed well will deplete/irreparably damage the
well. She seeks an injunction because she (1) wants to stop the project before they can
argue investment; (2) potential saltwater contamination of her well. If the rule of capture
were to apply, this would initially seem fair but eventually both would lose the use of the
well to salt water intrusion. Instead the court adopts the American Reasonable Use Rule.
The justification for adopting this rule is that as long as you are only using the water on
the overlying land because (1) It returns to the aquifer; (2) Minimizes the water being
withdrawn (theoretically). Why not damages? Damages will not make the plaintiff
whole because the damage to the aquifer remains. Additionally, this is property, and in
property disputes aggrieved parties are entitled to injunctive relief.
3. Correlative Rights. This maintains the on/off tract users distinction. On tract users must share;
however, they sort out what fair and just proportion.
a. Katz v. Walkinshaw. Plaintiffs sued newer water users who dried up the well with off
site uses. In AL plaintiffs would win; In TX defendants would win. But this is
California, they do not like rule of capture because it is a race to use all the water.
Instead they adopt the correlative rights principles.
4. R. 2d of Torts: Reasonable Use. Not to be confused with American Reasonable Use. An owner
can withdraw water and put it to a beneficial use and not be subject to liability unless (1)
Interferes w/ someone else’s water use; (2) Exceeds reasonable share of annual supply; (3)
withdrawal of the has a direct and substantial impact on lake or river and causes an unreasonable
causes harm. Note that this is almost the same as riparian rights, but there is no on tract
requirement. This is also where the R.2d § 858 departs from the correlative rights rule. If there
are competing uses, under the R.2d you apply the factors listed in § 858 (same as in riparianism).
a. McNamara v. City of Rittman. This is a certified question case. The case was in federal
court because it was a federal question (takings clause & due process, because the
tortfeasor is a city). The question to the Ohio Supreme Court is whether the landowners
have a protected property interest in the water that can be subject to a taking. The answer
is YES. The court is applying the R.2d rule, which creates a right to the water.
Additionally, Ohio goes a step beyond the R.2d because water is a stick in the bundle and
if the water stick is taken, you have been subjected to a taking. If this was a rule of
capture state, the municipality could take all the water and the property owners would not
 Water Law
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be entitled to any compensation. This case would illustrate how the rule of capture fails
property owners. The municipality was not using the water. The municipality was
dewatering in order to put in a sewer line. This case illustrates how the Reasonable Use
Rule fails in modern situations. When you are talking about dewatering, the water almost
always has to take the water off tract. It does not make sense to distinguish bt on and off
tract uses for the purposes of a takings problem. Ohio uses the R.2d Rule of Reasonable
Use.
b. Under what rules can you have a taking? R2d Reasonable Rule. Correlative Rights.
Maybe American Reasonable Use…depends on whether on or off tract. Never under the
Rule of Capture.
5. Prior Appropriation. A right to the water is established by (1) taking the water; (2) divert it; (3) put
it to use; and (3) one can only take that which does not belong to someone else. How do you
know what isn’t appropriated? You don’t and that is the problem with the system of allocating
property rights out West. First in time, first in right determines rights amongst competing uses.
6. The Sixth Groundwater Doctrine. Exceptions for municipalities which waive the on tract use
requirement.
III. Modern groundwater disputes and crises
A. The Emergence of Groundwater Management Legislation.
1. Harloff v. City of Sarasota. Florida is a correlative rights state. Harloff applies for a consumptive
use permit and is approved but for a lesser amount. This is going to force him to alter his farming
alteration. His water comes from the Verna Wellfield and there has been a substantial lowering
of the static water level and the wellfield has not been able to meet peak demands. To obtain a
permit: (1) Is a reasonable-beneficial use as defined in section 373.019(4); (2) Will not interfere
with any presently existing legal use of water; and (3) Is consistent with the public interest. The
expert found that the proposed increase would cause an additional drawdown of 1.7 feet and
seriously impact the productive capacity of the Verna Wellfield. The hearing officer
recommended that Harloff receive a consumptive use permit for the entire allowance of water
requested. Court hold that the hearing officer made errors of law in denying the application: (1)
The hearing officer put the burden on the City when the burden should be on Harloff to show no
harm; (2) Did not give the city’s permit priority even though they had the permit first.
2. Cason v. Florida. Holds that the property rights relative to percolating GW are correlative and each
land owner is restricted to a reasonable use of his property as it affect subsurface waters passing
from the land of one to another.
B. Legislative regulation and property rights in groundwater.
1. Bamford v. Upper Republican Natural Resources. Court sees this as a correlative rights state. 1988
order set max use at 75 acre inches. Plaintiffs exceeded their allocation and ordered to cease
irrigation operation. Did not appeal in time. Instead they brought an action claiming
uncompensated taking. They claim that they cannot withdraw water to grow corn and therefore
they are being denied of all economic use of their land. The court says that they were not denied
all economic use. Taking will only occur where (1) There is a total wipeout and (2) The
water rights are part of the bundle.
a. Takings in Bramford. If this were a capture state there would be no taking if the issue
was a physical taking because if you can pump it and it is yours. Here this is a regulatory
taking…this is not permissible in a capture state. If this were a prior appropriation state
this would be a taking.
C. Groundwater v. Surface Water
1. City of Albuquerque v. Reynolds. City applied for ground water permit, but this is in the Rio Grande
basin, so also surface water. The river is completely appropriated, and can’t grant a permit where
it would impair existing water rights. The state engineer was in charge, he refused to grant the
permit b/c it would interfere with the Rio Grande. He knows its connected so he took a pragmatic
approach to prevent over appropriation.
a. Where there is a conflict between ground water and surface water, should one’s rights
trump the others? Tough question, but perhaps the surface water should trump since the
surface water has more emotional connection with ownership, surface water use has been
 Water Law
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around longer (not necessarily rights, but use). Most states follow this approach. This is
true in riparian, but may also be true in the Western states. In a western state can also say
that a senior groundwater user gets the water b/c seniority is most important, and the
surface water only has it due to the failure of the senior appropriator using…but if you
aren’t using the water “beneficially” then probably don’t have the right. Ground water
appropriator has a physical advantage b/c can always pump deeper wheras surface
appropriator is limited by how much can be withdrawn on the surface. The surface water
appropriator can be seen as a downstream user to the groundwater user where the ground
water leaks into the surface water, but other way around where the surface water is
leached into the ground. Most important reason is the intrinsic value of surface water
over ground water, ground water is often seen only in its relation to surface water.
2. How do we resolve disputes bt the two? In a riparian jurisdiction, the conflicts are almost always
resolved in favor of the surface water. In a prior appropriation state, the differences are going to
be resolved in favor of the senior appropriator.
Dispute Resolution Principle No Connection to Land On-tract Use Only
Capture Absolute Ownership American Reas. Use
Priority Prior Appropriation -
Sharing R. 2d Reasonable Use Correlative Right

Michigan Citizens for Water Conservation v. Nestle. Nestle was issued a permit by the MDEQ under the SDW. They
choose this site in order to call the water “spring water.” The trial court made factual findings about each of the streams
impacted:
 Insert from the opinion.
The Michigan Court of Appeals upheld every one of these factual findings.
Legal findings:
This is not riparian surface water so the riparian analysis does not make any sense. The ground water standard is applied.
The trial court applied the natural flow doctrine. The rule of capture was first limited by a distinction bt on and off tract
uses. At p 59, there is an error: not correlative rights. Here we are talking off-tract use. The fact that they are making this
distinction indicates that Mich may be a R.2d state; however, the court says that they are not adopting the
R.2d…confusing. Probably best to say that the court has relied on it. The court adopts balancing, tosses the TC holding
that applied the per se rule. Split 76-24. Remands to trial court for a determination of how the water should be split under
the balancing.
D. Well interference.
1. The problem of externalities. Over-pumping can lower the cone of depression to lower and other
users may have to lower their well. That’s the problem. Externalities. Without limiting
legislation, people will pump more to benefit themselves but to the detriment of society. Ideally
the externalities would be internalized both in terms of costs and benefits.
2. Prather v. Eisenmann. Plaintiffs are angry with the defendants for putting in a large well that dried
up their well. The plaintiffs are within the cone of depression created by the defendant’s well.
Nebraska applies the correlative rights rule and uphold the district court holding: which said that
all of the rights of the parties could be protected if the plaintiffs simply lowered their wells and
gave them costs to do so.
E. Inadequate supplies of ground water. Why not save it for future generations? Discount rates.
F. The Michigan Water Withdrawal Act.
1. Why? Protect the water from transfers to dryer states outside the basin. The Dormant Commerce
Clause would prevent this type of legislation. OTOH, the state can protect the fish and wildlife.
Also, public trust doctrine. There is also the issue of the non-binding compact. Also, Nestle.
The courts do not like leaving certain decisions to the court, especially decisions about water
rights. No one in the Nestle decision was satisfied with the outcome. Bottlers don’t want the
uncertainty of relying on the court. The case also highlighted all of the problems with relying on
the CL.
2. Analyzing the problems. How much and from where? This indicates the standard to be applies. If
water is coming from the Great Lakes, more water can be taken without applying for a permit. It
determines whether they need a permit. Do not forget registration and reporting.
Water Law
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a. Hypo 1: Dow in Midland, where they use groundwater. They want to withdraw 3
million gallons of water.
i. Under _ , they need to apply for a permit because they want use more that 2
million of groundwater. If they wanted to take water from the Great Lakes, they
would not have to apply for a permit because the trigger point is 5 million. The
adverse resource impact applies. This is defined as: (i) Decreasing the flow of a
stream by part of the index flow such that the stream's ability to support
characteristic fish populations is functionally impaired. OR (ii) Decreasing the
level of a body of surface water such that the body of surface water's ability to
support characteristic fish populations is functionally impaired. “
ii. The next thing they have to do is register. See MCL § 324.32705.
iii. Finally, you have to report your water use in accordance with MCL § 324.32707.
b. Hypo 2. City of Detroit gets its water from Lake Huron at 5 million gallons per day.
Municipalities are exempted from 327.23 under (10). They are covered by MCL §
325.1004, the Safe Drinking Water Act. This takes us back to the Adverse Resource
Impact standard. What if they find an adverse resource impact? They can still do it if:
(1) There is no other feasible source, and (2) balancing. This will never happen
BECAUSE on the Great Lakes, there is never going to be a single water withdrawal that
fails under the adverse impact test. Under _ permit shall issue if the following
conditions are met: (a) All water withdrawn, less any consumptive use, is returned, either
naturally or after use, to the source watershed. (b) The withdrawal will be implemented
so as to ensure that the proposal will result in no individual or cumulative adverse
resource impacts. Cumulative adverse resource impacts under this subdivision shall be
evaluated by the department based upon available information gathered by the
department. <<<Note that this is different from adverse impact because the impact
assessment is cumulative, which looks at all the other uses on the water body.>>>(c)
Subject to section 32726, the withdrawal will be implemented so as to ensure that it is in
compliance with all applicable local, state, and federal laws as well as all legally binding
regional interstate and international agreements, including the boundary waters treaty of
1909. <<<note that elsewhere in the statute local laws are preempted by the statute. (d)
The proposed use is reasonable under common law principles of water law in Michigan.
(e) The applicant has considered voluntary generally accepted water management
practices or environmentally sound and economically feasible water conservation
measures. <<<This is more like a suggestion>>>.
c. Hypo 3. Nestle. Is this a diversion outside the GL basin? No. The statute defines
diversion as : a transfer of water by pipeline, canal, tunnel, aqueduct, channel,
modification of the direction of a watercourse, tanker ship, tanker truck, rail tanker, or
similar means from the Great Lakes basin into a watershed outside of the Great Lakes
basin. Diverted includes a transfer of water withdrawn from the waters of the Great Lakes
basin that is removed from the Great Lakes basin in a container greater than 5.7 gallons
(20 liters). The permitting is controlled by MCL § 325.1017. To get a bottled water
permit, you must show: (a) The proposed use is not likely to have an adverse resource
impact. (b) The proposed use is reasonable under common law principles of water law in
Michigan. (c) The withdrawal will be conducted in such a manner as to protect riparian
rights as defined by Michigan common law. (d) The person will undertake activities, if
needed, to address hydrologic impacts commensurate with the nature and extent of the
withdrawal. These activities may include those related to the stream flow regime, water
quality, and aquifer protection.
d. Other important things to notice. Savings clause. Note 324.32721. This has not come
in to full effect yet.
 Water Law
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PUBLIC RIGHTS TO WATER

A. Navigable Waters or tidality-for-title waters. The state owns the land below the ordinary high water mark
both on tidal and inland navigable waters. The federal government hold the navigable waters and the
lands beneath them in trust for the future States, and shall vest in the several states when they are admitted
to the union. Thus, a state has title for those waters and the lands beneath them that were navigable at the
time of statehood.
1. Holds that the state takes title of the water and land beneath that are navigable at the time of
admission. Utah v. US. Dispute bt Utah and the United States as to the shore-lands around the
Great Salt Lake. Utah claims that the waters were navigable at the time of statehood. If this is
true, Utah’s claim would override that of the United States. Navigability for title refers to who
owns the lands below the water’s surfaces. The states own the land below the waterways. The
federal government holds navigation servitude to ensure that the waterways are open for
commerce. “Those rivers must be regarded as public navigable rivers in law, which are
navigable in fact. And they are navigable in fact when they are used, or are susceptible to
be used, in their ordinary condition, as highways for commerce over which trade and
treacle are or may be conducted in the customary modes of trade and travel on water.”
a. Remember, the issues hear is commerce, not just interstate commerce. The fact that that
the Great Salt Lake is not navigable for the purposes of interstate commerce does not
impact that the concept of public owner
b. Some states have granted title to landowners down to the low water mark.
2. Holds that upon admission to the Union the States also take title to lands beneath their tidal
non-navigable waters. Phillips Petroleum Co. v. Mississippi. When Mississippi entered the
Union did it take title to lands lying under waters that were influenced by the tide running in the
Gulf of Mexico? The standard they are looking at the ebb and flow tides, if they lands are subject
to the ebb and flow of the tide, the state has title. But this is not title like a state has title to a state
office building. When a state takes title to these lands they fall under the public trust doctrine.
This is a nebulous term. The state controls these lands as trustees.
B. Boundaries, Bed Ownership, and Shifting Shorelines.
1. Federally navigable or tidal-for-title waters. Note that there is a difference bt tidal water (that
move in and out) and inland waters that do not ebb and flow. With inland waters, the shore can
change because of increase run off, precipitation, etc. The approach to defining high water marks
for inland waters varies. As the shoreline changes, what happens to the boundaries. The CL
rule is that if the shore moves gradually and imperceptibly, either by erosion, reliction (exposure
to of land due to recession) , or accretion (gradual buildup) then the boundary line moves. If the
changes are sudden then the boundaries do not change.
a. Exceptions. Landowner cannot create his own accretion. Hurricanes may change
shorelines and the Army Corps will restore the shorelines.
b. California Rule. BT the landowner and the state…Land along the tidelands and
navigable rivers that accretes by artificial means , such as dredging and construction of
dams and levees does not go to the property owner.
2. Non Navigable or tidal-for-title waters.
a. Rivers and Streams. The beds of a stream are owned by the riparians who own the land
surrounding the stream, so they are privately owned. If you own the lands on either side
of the river, you own all of the underlying lands. If you own land to one side you own
half. If they body of water is a lake then the individual holds title to a wedge of land
from the shore to the center of the lake.
b. Lands and Ponds. If a single owner owns the whole thing. Otherwise they own a
wedge.
C. The Federal Navigation Servitude. Why? You have to give the federal government the power to ensure
that they waterways are open for commerce. This was more important in the past.
1. United States v. Willow River Power. The power company has a power plant; the power generation
comes from the “head” of water (the distance that the water falls). The federal government raised
the level of the St. Croix River, which decreased the head by three feet. What is the servitude? It
 Water Law
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can be purpose based, i.e. for ships or comers. However, if the servitude is physical, then it is far
more open and the
D. Public Rights of Recreational Access and Use
1. Federal Commerce Clause Nav v. Nav for Title.
a. Kaiser Aetna v United States. Developers dug a channel that turned what was a tidal
pond into a marina. After dredged, the feds say that this is navigable; it is subject to the
federal navigable servitude. The federal CWA creates federal regulatory jurisdiction over
all waters of the United States (that are navigable) waters. CWA defines navigable
waters differently. So it is important to distinguish whether there is regulatory
jurisdiction from whether there is navigation servitude. Both turn on navigation, but a
different type of navigation. The regulatory powers are much broader than those under
the federal navigation servitude. Held: The artificial conversion does not open the bay to
the federal navigation servitude. Theoretically, the federal government could take the
land with compensation. But to open this to the public access would amount to a taking
2. State Law Navigability.
a. Bott v. MDNR. Bott: Plaintiff owns 600 acres which includes a lake. There is no inlet
but there is an outlet to Big Chub Lake. There is a factual issue is whether the outlet is
actually navigable. The issue is whether individuals from on Big Chub Lake can (is it
permissible ) traverse the outlet to Linton Lake. In Michigan, if you can float a log down
the stream, the stream is navigable. Should recreational access determine navigability?
The court says no because: there is no evidence of increased public need; other states
have a consistent with this approach, there is a reliance on current law.
b. This doesn’t really seem settled. OOH, if you can get to it, you can use it. OTOH,
what about settled property rights. He bought the land relying that he owned it and it is
private. However, there is an issue of changing water bodies.

3. Public, Private, and Common Rights in Waters for Recreational Use.

a. Common Rights: Riparian Access to Waters
i. Thompson v. Enz. Developer purchases a large piece of land. There are several
litoral lots and several back lots. The developer then wants to build channels to
the back lots to create riparian rights. However this is an artificial waterway.
Artificial waterways do not create riparian rights, but as a practical matter you
get the same thing (access to Gun Lake). This issue is whether this development
would be able go forward because this will create access for others. The
plaintiffs argue that the access would be an unreasonable use. This case is really
about riparian reasonable use. You could use your § 858 factors.
E. The Public Trust Doctrine.
1. Glass v. Goeckel. Plaintiff has an easement to the lake across the defendant’s property. They
interfere with her use of the easement because once she is there she walks down the beach, which
they claim is trespass. There are two main issues that are being litigated here:
a. How the public trust doctrine affects private littoral title to the waters edge. We knew
going into this case that the land below the water was held in public trust. We also knew
that there is privately held the land. The area that is sometimes under water and
sometimes dry is an area where these two concepts overlap. It
b. Whether the public trust encompasses walking among the public rights protected by the
public trust doctrine.
c. Important Concepts from the Case.
i. Jus Privatum & Jus Publicum. Jus publicum are the rights vested in the
sovereign. Jus Privatum are those lands that are held by individuals.
ii. The High Water Mark v. Low Water Mark. Originates with the law of the sea
where high water mark is the highest area where the tides come in. In the context
of the Great Lakes this is the highest area that the water ordinarily reaches with
the natural fluctuations of the lake. The majority says they high water mark is
the boundary of the public trust.
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♦ Why? People have always had rights to use the waters for hunting and
fishing. You need to gain access to the lake to do this.
♦ Ordinary high water mark means the line between upland and
bottomland that persists through successive changes in water levels,
below which the presence and action of the water is so common or
recurrent that the character of the land is marked distinctly from the
upland and is apparent in the soil itself, the configuration of the surface
of the soil and the vegetation
♦ The GLSLA. The court does not adopt the standard because they say
that this statute does not define the boundaries of the public trust.
d. The Dissent. Young and Markman would rely on the wet sand, saying that the wet sand
is included in the public trust doctrine. Why? This is a clearer standard. He thinks that
the ordinary high water mark standard does not translate well from the tidal context. He
also claims the majority is making new law.
F. The New Public Rights and the Old Private Rights: Environmental Protection
1. Sax. Why not just decide any dispute in favor of public rights? Tragedy of the Commons. There
would be nothing left in the private. The public consumptive uses of water is most clearly
conceptualized as the natural uses- domestic uses trump.
2. The Public Trust Limit on Appropriation
a. The Mono Lake Case. LA has no water so they start taking it from Mono Lake
tributaries and piping it to LA. Mono Lake is saline and a brine shrimp/bird habitat. This
lowered the lake levels. There were two islands in the lake but the 1/3 lower lake levels
have turned one island into a peninsula. This has wrecked havoc on the birds because
they can now be reached by their predators.
i. What if this was a reasonable use under riparian law? The fact that the city is
using it for domestic uses would probably be trumped because even though the
use is off-tract.
ii. Procedural history. Case filed in state court. The case then went to the federal
court. The federal court submitted two certified questions to the Superior Court
regarding how the public trust doctrine and appropriative rights interact.
iii. The Public Trust Doctrine. This question is coming up no w because there was
a resurgence of the public trust doctrine in the ‘70’s for the purposes of
protecting the environment. The state has the responsibility of protecting the
bodies from total appropriation. It is not clear exactly what the state has to do. A
private use that negatively impacts that public is allowed. So some harm is
allowed; however, it must be balanced with the need.
iv. Other applicable rights. Endangered Species Act.

In short. If the water is navigable, the state has title (like a trustee has title) and the federal government has a servitude. If
the water is non-navigable, then the property owner owns.
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APPORTIONMENT

I. Congressional Apportionment (absent)

A. The Authority of Congress. Derives from Art I § 8 of the Constitution- the Commerce Clause. The
supremacy clause binds states to Congress’ actions.
1. Rare. Congress is rarely called upon to make apportionments. Why? Equal representation in the
Senate. Senate and the House can never agree. Tribal issues, endangered spieces.
B. Water as a Regional / Shared Resource. We'll lay some general principles out. Then, the final 2 classes
focus on the Great Lakes and MI in particular. Michigan's fucked says Noah. Except on one issue -
water. The rest of the world is running out of water, except Michigan. The bottom line is that the one
thing that MI is leading the country on is water. What we do with that is up to debate.
C. Interstate Compacts. The compact clause says that a state may make a compact with another state only with
the approval of Congress. Congressional approval is required to the formation of any combination of
states tending to increase political power in the States at the expense of the federal government. Consent
may come before or after the signing of the compact and it may express or implied. Once ratified these
compacts have the force of federal law.
1. Advantages (1) supremacy clause, (2) cannot be scrutinized under the dormant commerce clause, (3)
establish commissions to ensure compliance, (4) State cannot repudiate except under the terms of
the K.
2. The Delaware Basin Compact. Provides water for NYC and Philadelphia. Increasing demands for
the water led to conflicts. Tried to negotiate compacts but they failed. The Court made
apportionment in 1931 and 1954. Dissatisfied with the court ordered solution, they approved a
compact in 1961 to manage the basin as a regional resource.
a. Rep from each of the four basin states. Commissioner appointed by the president.
Each has a vote. Simple majority controls most issues. The administrative body controls
every aspect of management but their power is limited by the 1954 Supreme Court
decree.
b. Parties to the compact all follow riparian law. The largest user (NYC) is not riparian.
It gets water because of the compact.
c. Federal involvement. Provides funding. Builds dams, etc. Does not have a vote.
d. Will this work for the Great Lakes? No, because
i. It's a very hands-on, intensive approach that's only really justified if there is
scarcity or litigation between the states.
ii. The imposition on state sovereignty that the Delaware River Basin Commission
would put on state sovereignty.
iii. Water is too central to Michigan’s economy; Michigan will not agree.
D. Colorado River. It's a good case study for interstate apportionment There's more law on this than anywhere
else - why? It's not a huge river, but it's the major source of water for about 7 states, including California,
Arizona, Colorado, etc.
1. It's over-allocated, and has been for a long time. It's just the most demanded river in the country.
2. The river either begins in Colorado or Wyoming. It's a bit arbitrary which tributary is the start of the
river.
3. It basically drains parts of Wyoming, Utah, Colorado, New Mexico, etc.
4. New Mexico, which is in the watershed, does not actually border the river at all.
5. What's the Law of the River?
a. Interstate compacts
b. Federal statute
c. Regulations
d. Court decisions (USSC decisions)
e. Contracts (private law/agreements)
f. State prior appropriation law mixes in.
6. All the appropriation law is relevant and important, but it's probably secondary to the higher levels of
law that govern the interstate management.
7. The Colorado River compact.
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a. A federally approved agreement between the states to divide the river between the upper
and lower basins.
b. Lee Ferry was the dividing mark (at the Utah/AZ border).
c. Wyoming, Colorado, Utah, New Mexico got 7.5 MAF. The lower basin states got 7.5
MAF. We won't get tested on the details of the Colorado river compact. It's just a case
study for us.
d. 15 MAF split in half was how they did it. Probably the reason it was so basic was that
was all they were willing to agree on at that point.
8. Treaties. Theoretically, the Colorado river reaches the Gulf of California. Mexico should get
something. The obvious way to solve that is with a treaty with Mexico. They get 1.5 MAF,
basically about 10% of the flow. They really only have a tiny bit of it in Mexico.
9. Supreme Court Decisions. They turned away Arizona's suit for a while saying it wasn't ripe for
decision. The USSC said in 1963 that Arizona got what it wanted plus the entire flow from the
Gila river. AZ made off pretty well. That same case set aside some water for both federal lands
and indian tribes.
10. Congressional apportionment. They passed the Boulder Dam Act - it authorized some dams. The
major thing Congress has done is authorize Big Projects. The Hoover Dam is HUGE. Congress
spent a dickload of money to build these dams. We also had the Central Arizona Project - it
provided the growing Arizona cities with their compact water. Congress hasn't so much allocated
the water, but they've provided the money for the infrastructure.
E. Water marketing. Because the legal system is out of date for the Colorado river, the market has, to some
extent, try to come in and do this itself. California takes about 5 MAF, within California it had been used
for agriculture, and people in San Diego realized that it found the imperial irrigation water more valuable.
Wyoming could sell its MAF to Arizona or California, it may not be a bad idea.
1. What about the great lakes? One of the huge differences between the Great Lakes and the
Colorado River: None of the development is actually on the Colorado River. Detroit, Chicago,
Cleveland, Milwaukee, Buffalo, etc. are all ports on the lakes themselves. Industry, shipping,
everything is based on proximity to the water.
F. The Missouri River. Big, not a lot of management through compacts. Relied on Congressional
Apportionment instead. No comprehensive management plan.
1. Why does Congress have power to apportion rivers? Commerce Clause. One of the immediate
failings of the Articles that lead to the Constitution is that Congress couldn't manage interstate
rivers. They often form boundaries between states.
II. Equitable Apportionment of Water Rights. The SC has original jurisdiction over disputes bt the states. Art. 3 § 2.
The court usually appoints a special master in these cases. There really is no “law” that is applied here.
A. The Law Applied by the Court. Equitable apportionment. This is a practical dispute resolution.
1. No clear legal doctrine. Why? A fact specific inquiry. Property rights. Full, faith, and credit
clause. The SC does not want these cases on their docket. As long as states are scared to go to
the courts
2. What law is applied? The law applied is more like reasonable use because they do not want to
apportion the rights to water. Why? Fact specific inquiry. Property rights. They don’t want
these cases on their docket.
3. Wyoming v. Colorado, Kansas v. Colorado If it was a wholly intrastate legal dispute - the doctrine
would be prior appropriation. When there's a dispute between Kansas and Colorado, does the
court use prior appropriation? No. If it were prior approp. It would be easy to adjudicate. The
USSC doesn't use prior appropriation expressly. Why is it reasonable use? They look at a bunch
of factors, and basically don't want any one user to get the bulk of the rights. Unlike in a private
setting, we don't take the private approach when it's 2 states litigating a water dispute. Putting
aside who came first, if you're in the state that came second, you'd say look, we have sovereign
interests as a state. States are a different animal than a private party. Basically, Stevens said that
when states are going into court, they're going into court because they essentially forfeited their
sovereignty that allowed them to fight about it. Similarly, in NJ v. New York, the legal system
they'd use would be riparianism. The court didn't decide this case under reasonable use
riparianism. It's a bit closer to reasonable use, but it's not riparianism for one clear reason - it's
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not dependant on on-tract uses. The court's not going to say. They kind of look at the entire state
as riparian. Since the state is riparian, it has the authority to regulate it within its borders.
B. Private Interstate Water Litigation.
1. Bean v. Morris. The court applies prior appropriation here. The dispute is over the Sage Creek,
which meanders out of Montana into the Big Horn in Wyoming and back into the Sage Creek.
When the creek is in MT, MT has full leg power over the creek in MT. Morris sues, being a
senior appropriator. Howell intervenes.
a. Choice of law issues. The law in both states is prior appropriation. So there is not really
a conflict in the two laws. Because this is a dispute bt two individuals, the court applies
the prior apportionment. The outcome would be different if a state were to join the suit.
C. Sporhase v. Ex rel Douglas. Appellant jointly own contiguous tracts of land in Chase County, Nebraska and
Phillips County, Colorado. S did not get a permit under NB withdrawal statute. There are two statutory
schemes here: Reasonable use & Reciprocity. The NB SC reached the conclusion that water was not an
article of commerce because it is necessary for life. This is a weak argument since the water is being used
to grow a commodity. The SC court finds that water is an article of commerce. When you use water to
grow crops the crops go into the stream of commerce. The water at issue also comes from the Ogallala
aquifer, which is located within the confines of both states. The statute violates the dormant commerce
clause. The reasonable use portion of the law does not violated the DCC because there is a legitimate
state interest in regulating uses within the state. The problem with the statute is the reciprocity
requirement.  This is what the court is striking down, the interference with interstate commerce caused
by the reciprocity requirement (out of state use isn’t allowed unless that state would grant reciprocal
rights to transport water into the state). The NB SC later decided that the reciprocity requirement was
severable from the remainder of the statute.
1. Dissent. Rehnquist and O’Connor dissent. This is a state’s right position, they say that is not an
article of commerce so the state can regulate it.
2. Dormant Commerce Clause. Holmes.
D. The El Paso Litigation. NM passes a ban on sharing water resources. This is struck down. The legislation
is then revised and challenged once again. El Paso argues that NM’s law: (1) The NM policy essentially
encouraged the opposite of conservation. The Court rejects this argument because at the time of the
litigation it was unclear how NM would conserve the water. (2) It is intrinsically discriminatory against
non-citizens. Court says that there are circumstances where states can protect their water from export.
(3) The law violates the Commerce Clause because conservation principles were applied to all out of state
uses but not all in state uses. The court strikes down NM’s legislation here. They eventually reach a
settlement.
1. How do we distinguish Michigan from New Mexico? One argument is that you cannot. OTOH,
Michigan is continuing to favor on-tract uses. The NM legislation is changing the system (prior
appropriation).
III. Interstate water management.
A. The Boundary Waters Treaty. To violate this treaty, you need to divert enough water to supply a large city.
There are not going to be very many diversions that do this.
1. What happens if there is a disagreement bt Canada and the United States? If the Canadians
allege that there is a violation of the treaty and the United States disagrees and the IJC steps in if
both parties agree. This takes 2/3 vote of the senate to subject the US to the jurisdiction of the
IJC. That never happens. But this is an old treaty.
B. Wisconsin v. Illinois. The city of Chicago increasingly was diverting Great Lakes waters to carry off sewage
through a long-established drainage canal, the Chicago Sanitary and Ship Canal. Illinois claimed that
these increasing amounts of diverted water were made necessary by Chicago's growth. Wisconsin,
however, claimed that the diversion was lowering lake levels, thereby impairing its transportation
facilities and abilities.
1. Who’s pissed? The downstream cities were angry because Chicago a sending their sewage
downstream. The US government sides with Chicago because they want the sewage to be as
diluted as possible. Other Great Lakes States don’t like the diversion.
2. Why are they pissed? This is an out-of-basin use and Chicago is sending their shit downstream.
The diversion lowered lake levels 6 inches in a way that impacted navigability (Remember, it is
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not enough to show that lake levels are being reduced, this argument would only work in
jurisdiction natural flow doctrine applies). Here, navigation is a large factor in reasonable use.
3. What law is applied? The Court applies something close to riparian-reasonable use. It is clearly
not prior appropriation. It isn’t really equitable apportionment because they are saying that the
use is unreasonable because the use could have been reasonable, but Chicago is taking a little too
much for it to be reasonable. There is also no “apportionment” going on; no division of the
resources. The decision does not give Chicago the right to use x amount of water. It gives them
the right to use a reasonable amount of water.
4. Missouri v. Illinois. Went to Supreme Court using original jurisdiction, the Court sided with Illinois
b/c miss couldn’t prove a harmful effect so far downstream, science wasn’t there. Missouri said if
we are going to be stuck with the sewage, want as much Lake MI water as possible. So that was
the next goal of litigation.
5. US government. Had a regulatory role, sued successfully on permit issue. Granted permits to build
canals.
C. 1986 Water Resource Development Act. There can be no diversions out of the Great Lakes unless it is
approved by all of the governors of the Great Lakes States. This includes studies. This cuts them off at
the pass. Basically says don’t even think about it. This statute does not really create a cause of action.
This statute gives you no reason and no process. Provisions:
1. Water can’t be diverted unless approved by governors of the Great Lakes States and can’t even plan it
without the approval of the Governors, don’t even plan on it.
2. Does not impact users within a state. Politically this may not be a problem. But environmentally the
problem is that doesn’t prevent those users from wasting water. The problem legally is that it is a
total free pass for interbasin uses and total ban on out of basin uses. Environmentally the 2 are
equally bad, should’ve said anything abut in-basin uses.
3. Politically vulnerable because of population/political power growth in the arid west. It was easily
passed in the first place, great lakes states were more politically powerful. This is a false hope,
can be overturned really easily.
a. Groundwater. Doesn’t apply to groundwater (b/c not mentioned).
b. There aren’t any standards for the basis of denial. The reason that this statute isn’t
complete is the due process clause of the government, there is no reason and no process.
IV. The Great Lakes Compact. The purpose is to stop out of basin diversions. This is an improvement of WRDA
which is an outright ban, there are no dormant commerce clause issues. A compact has never been repealed.
A. Out of basin diversion. Water diversion within the state is the state’ biz. Once it goes out of basin it
becomes the biz of the compact. New and increased out-of-state diversions are prohibited (§ 4.8). Taking
water from one Great Lake to another is considered a diversion.
B. Intra-basin transfers. These are permissible under 4.9.2 as long as they are less than 100k gal/day averaged
over 90 days  the state can regulate. If more than 100k but less than 5Mil(consumptive use…this is a
different number than a total diversion) then they must comply with the requirements in 4.9.2. Once the
consumptive use surpasses 5 million gallons per day must have unanimous approval.
C. Management of New & Increased Withdrawals. §4.10 Within five years of the effective date of this
Compact, each Party shall create a program for the management and regulation of New or Increased
Withdrawals and Consumptive Uses by adopting and implementing Measures consistent with the
Decision-Making Standard. The decision making standard: (1) water used should be returned to the
source watershed; (2) significant impact; (3) water conservation; (4) complies with all other laws, (5)
reasonableness. Why number 4? This provides for an enforcement mechanism through existing laws.
1. When does a state have to start to regulate? The state can set its threshold level but it still has to
2. States have to register and report. THIS IS IMPORTANT. It is required under the compact. You
must register
D. The Compact Counsel. Governors of the states/provinces have veto power. The Compact Council can
change the standard unilaterally. This is bad policy.
E. 5 elements of the decision-making standard. 4.11. restatement factors. No significant effect, ike riparian
reasonable use.
F. Citizen suits are provided for in 7.3. This is just like the CWA. They can get attorney fees.
G. Is bottled water a diversion? Not if it is in a container <5.2L . Much like the Michigan statute. 4.12.10
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H. The legislatures of each state (both houses) have to approve it exactly as written. Has to be signed and
sealed…the Congress also has to approve it under the Federal Compact Clause.
I. Analyzing Compact Issues:
1. Is there a diversion? For the purposes of the compact, diversion means (1) taking water from the
GL Basin into another watershed or (2) taking water from one watershed to another with the GL
Basin.
2. Does Article 4 of the Compact prohibit the diversion?
a. 4.12 defines the applicability of the Compact. Some notable things that the Compact
does not apply to:
i. Water removed in containers <5.2L
ii. Changes inownership
b. 4.13 creates an EXEMPTION from Article 4 (1) supply vehicles or (2) short-term use for
firefighting, humanitarian, and emergency response purposes.
c. 4.14 Water diverted outside the Basin but within Illinois is governed by the principals of
Wisconsin v. Illinois.
3. Assuming none of the above apply, Article 4.8 prohibits new and increased withdrawals.
4. Does it fall within the exceptions. Article 4.9 creates three exceptions”:
a. Straddling Communities. Permissible as long as all of the water is returned to the
watershed, less consumptive use.
i. Withdrawals >100k per day averaged over a 90 day period must meet the
Exception Standard
ii. Withdrawals with a consumptive use >5 mill per day averaged over a 90 period
have to undergo Regional Review.
b. Intra-Basin Transfer. A Proposal for an Intra-Basin Transfer that would be permissible.
i. Withdrawals <100,000 gallons per day average over any 90-day period, the
Proposal shall be subject to management and regulation at the discretion of the
Originating Party.
ii. >100,000 gallons per day or greater average over any 90-day period and if the
Consumptive Use < 5 million gallons per day average over any 90-day period.
♦ Must meet the exception standard.
♦ No feasible alternative
♦ Notice to the other Parties
iii. If the Proposal results in a New or Increased Consumptive Use of 5 million
gallons per day or greater average over any 90-day period:
♦ Meet the Exception Standard
♦ No feasible alternative
♦ Regional Review & approval by the Council
c. Straddling Counties. This is permissible as long as:
i. Only for public water supply.
ii. Community is without adequate supplies
iii. Meets the Exception Standard
iv. No alternative
v. Regional Review & Approval by the Council
5. If it does not fall within one of these exceptions it is prohibited.
6. If it does fall within one of the exception, requirements for the proposal:
7. the entity wishing to withdrawal water from the basin must submit a proposal to the state. The state
has the responsibility of managing these proposals. Depending on the size and purpose of the
withdrawal, the proposal may need to undergo regional review and must be submitted by the state
after approval.