Water Law
States differ in laws regarding water rights. Water law expert Joe Guild describes underlying doctrines and addresses key water issues.
SAN ANTONIO, TEXAS (Jan. 27, 2010) — "Where is water law going in this country? To court, unfortunately," said Joe Guild, a third-generation water law lawyer who spoke at the 2010 Cattle Industry Annual Convention and NCBA Trade Show in San Antonio, Texas. "Water law has a complicated history and complicated application in each different state. There are no simple solutions, but there are plenty of challenges. We need to creatively manage water resources, particularly in the West, if we want viable agriculture production to continue in areas where millions of people live and also desire water for their own uses."
History
State water laws vary widely across the United States and depend on which legal doctrine each state chooses to recognize as a basis for its laws. States that recognize the "Prior Appropriation Doctrine" believe the first person who was able to divert water from a source and put it to beneficial use has the most senior right to that water. Under the doctrine, the right is retained as long as the water continues to be beneficially diverted. If use is abandoned, the right may be lost.
By contrast, under the "Riparian Doctrine" the landowner whose land borders a water body has certain rights to use that water, including the right to make reasonable use of it for any purpose so long as it does not interfere with the reasonable uses of other riparian owners.
Ten states have hybridized the doctrines to create a basis for their state water laws, including California, Oregon, Washington, Texas, Kansas, Nebraska, North Dakota, Oklahoma and South Dakota. Twenty-nine states adhere to the Riparian Doctrine, most of which are east of the Mississippi River, with the remainder recognizing the Prior Appropriations Doctrine.
Clean Water Act
On a national scale, the Federal Water Pollution Control Act [commonly called the Clean Water Act (CWA)] was created in 1972 to give the Environmental Protection Agency jurisdiction over the navigable waters of the United States.
"The changes proposed in the Clean Water Restoration Act offer potentially the most sweeping change in the nation's water law in our history," Guild said. It seeks to amend the CWA by removing the "navigable" determination of covered waters and replacing it with the term "waters of the United States."
"This would be an incredible encroachment on states’ rights and personal water rights by the federal government," Guild said. Historically, the EPA has had to defer to state water law and conform to the individual states, but if this passes the EPA and the Army Corps of Engineers would have authority to regulate all waters in the United States, everything from large flowing rivers to earthen stock tanks to depressions that have the potential to accumulate seasonal water.
Other Issues
Desalination. Considering that most of the United States' population lives within relatively few miles of the east and west coasts and the Gulf of Mexico, some suggest that desalination may cure the water shortage and water quality problems created by an increasingly urban population. However, a major, seven-year study on the subject recently concluded that taxpayers would likely be unwilling to pay for the development costs.
Urban vs. rural. Competition for water in the western United States has always been keen and is now spreading east, Guild said. "How do you manage the needs of millions of people, of agricultural producers and the growing demands of a huge urbanization of formerly agricultural lands, and balance those needs against the necessities of protecting endangered species and providing meaningful reaction experiences for those millions of people? It's a really big question, that has no simple answers," Guild commented.
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