CS39 Water Alloc & Policies Web

Water Allocation & PoliciesWater Allocation & PoliciesWater Allocation & PoliciesWater Allocation & PoliciesNREM 461

Dr. Greg Bruland

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I. Water Allocation

A. Ancient H2O Allocation Law

1. Code of Hammurabi

“ f ”a. “King of Justice” ruled Babylonia 1795-1750 BC

b. Code involved 300 sections dealing w/

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Hamurabi’s Code

c. Sec. 56: “If a man has released waters & so has let the waterso has let the water carry away the works on his neighbor’s field, he shall pa 10 g r of cornshall pay 10 gur of corn for every bur [unit of land flooded].”

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2. Justinian Code

a. Roman Emperor Justinian I (483-565 AD) ordered compilation of Roman Laws

b. Riparian Doctrine (RD) states that H2O in a stream belongs to the public for use by fisherman & for navigation; cannot be controlled by

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Justinian Code

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B. English Common Law (1200-1850 AD)

1 Riparian H O rights extend to center of1. Riparian H2O rights extend to center of nonnavigable streams

2. Navigable streams owned by general2. Navigable streams owned by general public

3. Right to develop mills & mill dams g pbelongs to riparian landowner on either side of stream

King Henry II (1133-1189 AD) created unified

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system of law “common” to the country

4. Excess H2O cannot be diverted from a stream & had to be returned unimpaired

5 I j d i i l d h d t5. Injured riparian landowners had to be compensated

Sir William Blackstone (1723-1780 AD) wrote ( )treatise on common law:

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C. Doctrine of Prior Appropriation (DPA)

1. CA Supreme Court established DPA in 1853 which allows users to divert H2O from stream for delivery & use on nonriparian landsstream for delivery & use on nonriparian lands

a. states that right to use H2O separateseparate

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b water right: right to use H O based on seniority & flow rateb. water right: right to use H2O based on seniority & flow rate

i. “use it, lose it”: nonuse of a H2O right can result in abandonment of the right back to the priority systemabandonment of the right back to the priority system

ii. What does this cause?

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c. “first in time, first in right”: 1st person to withdraw H2O & put it to beneficial use holds the better rightbe e c a use o ds t e bette g t

d. Senior appropriator: owner of water right whose right was acquired prior to all other water right holders

e. Junior appropriator: owner of a water right whose right was acquired after other water right holders

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2. California Doctrine

a. Mix of RD in humid regions & DPA in H2O-scarce areas

i. Est. by CA Sup. Court in case of Lux v. Haggin in 1886i. Est. by CA Sup. Court in case of Lux v. Haggin in 1886

b. Adopted by 8 other western states

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D. Evolution of Riparian Doctrine:

1. The RD has evolved into 2 basic principles:

R bl U i i l d di t &a. Reasonable Use: riparian landowner can divert & use any quantity of H2O s/he chooses for use on riparian lands, as long as these diversions don’t interfere w/ reasonable uses of other riparian landownersother riparian landowners

i. proof of interference/injury occurs in court of law or beforebefore

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b C l ti Ri ht i th t i i l d tb. Correlative Rights: require that riparian landowners must share the total flow of H2O in a stream

i no priority of H O use in this systemi. no priority of H2O use in this system

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E. Interstate Compacts (IC)

1. Binding agreements bet states, ratified by U.S. Congress, to share flow of H2O in rivers

a. If states can’t agree, Federal courts determine fair appropriation

tb. 1st IC was 1922 Colorado River Compact

i.

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Example Interstate Compacts

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Interstate Compacts:

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Interstate Compacts:

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F. Groundwater Doctrines:

1. Early laws

a Rule of Capture: provides a landowner unrestricted use ofa. Rule of Capture: provides a landowner unrestricted use of H2O obtained beneath their property

b. Rule of Absolute Ownership: landowner owns everything onb. Rule of Absolute Ownership: landowner owns everything on his/her property from land surface, up to the heaves, down to center of the earth

2. Current Practices

a. In U.S., all GW law developed by ___________

i. many have now adopted Correlative Rights Principle to

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F. Water Rights in Hawaiʻig

1. Hawaiian word for freshwater =

2. To early Hawaiians, concept of private ownership of water was nonexistent

3 W t t t d t l b t & bli d l i ht3. Water treated as natural bounty & public good, only right was to use, not to own

4 Word for law also tied back to water literally4. Word for law, , also tied back to water, literally means “belonging-to-the waters,” est. equal sharing

5 Western settlers est sys of private water rights5. Western settlers est. sys. of private water rights

i. Sugar companies, large corps. fought legal battles to acquire priv. water rights w/ disastrous effects on

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q p gnative Hawaiians

7. Current Status

a. 2002 Hawaiʻi Supreme Court ruling

i. Public Trust Doctrine (H2O cannot be subject to ( 2 jexclusive domination & control of private property owners) rather than RD or DPA governs H2O allocation in Hawaiʻi

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