WATER LAW

WATER LAW. Central issues in the history of U.S. water law are: (1) the development and evolution of state systems—both legal doctrines and institutions—for determining ownership and for allocating use of water and (2) the impact of those systems upon industrial, agricultural, and urban development. Colonists who settled along the Atlantic coast encountered in the "new world" a landscape crisscrossed with rivers. To create order upon this landscape, they applied the English common-law riparian doctrine, which recognized the right of riverbank owners to use the water in a river in ways that would not diminish or alter the river for downstream users—a right to the "natural flow" of the stream. A riparian owner could, for example, use the river for fishing, watering stock, cleaning, or travel, but could not alter the course of the river, reduce its volume, or pollute it so that downstream owners could not reuse the water. This riparian right could not be sold independently of the land adjoining the waterway, and all riparian owners along a river had an equal right to use the water.

The common law natural-flow regime was suited for places where demand for water was low, as was the situation in the East during much of the colonial period. In the eighteenth century, colonies, and then states, began to chip away at the common law by passing mill acts that allowed mill owners to build dams by making them pay damages when the dams overflowed on the lands of upstream neighbors. By the beginning of the nineteenth century, the natural-flow doctrine had become an impediment to industrial development, which required the use and diversion of large amounts of water to power manufacturing plants and mills. To accommodate changing economic circumstances, courts modified riparian law further by fashioning a reasonable use doctrine that allowed riparian owners to use up, alter, or divert a portion of the stream for reasonable purposes, typically defined as the usual practices or best interests of a community. These legal changes were both the product and cause of conflicts over water use in a rapidly changing world.

While courts in the eastern states were modifying the common law in light of changing economic circumstances, miners in the western states were developing an informal water-rights regime based not on riparianism, but on first use. The doctrine of prior appropriation recognizes that the person who diverts the water first and puts it to a recognized beneficial use has the best, most senior right to the water. Subsequent users can claim rights to any water still remaining in the stream. This right is not limited to riparian landowners, and it is a vested property interest that one can sell, trade, or give away. Reservation of federal land for a particular purpose (for instance, a national park) includes an implicit reservation of the amount of yet unappropriated, appurtenant water necessary to meet the purposes of the reservation.

Courts, and then state legislatures, ratified the miners' system. Today, almost all western states, the major exception being California, have adopted prior appropriation by statute. Some states also recognize, through case law, riparian rights. Many historians explain the widespread use of prior appropriation in western states by pointing to the relative scarcity of water in the West and the need to divert water to places where it did not exist. Others point to different local economic conditions or to the difference in the nature of nineteenth-century water use in the West (consumptive) and in the East (for power generation).

The legal rules for groundwater diversion evolved independent of these surface water doctrines because little was known about the relationship between groundwater and surface water in the nineteenth century. Courts developed several distinct approaches to groundwater law including variations of the riparian reasonable use rules and prior appropriation. Today, several states, particularly in the west, use sophisticated state or local management systems that authorize and supervise the pumping levels of groundwater users.

Because bodies of water do not recognize the political boundaries humans have created, states have developed administrative structures—such as levee, irrigation, and swamp drainage districts—that allow people within a region to jointly make decisions affecting shared water resources. States have also entered into agreements with each other to determine the allocation and use of water that moves across state boundaries. The Colorado River Compact is an example of one such interstate agreement. States, however, do not have absolute power to determine water rights or use. The Federal Government has rights to water through reservation and has the responsibility under the U.S. Constitution to protect and regulate navigable and coastal waters. To fulfill these responsibilities, Congress has passed far-reaching legislation such as the Clean Water Act and the Coastal Zone Management Act. Finally, Indian tribes have rights to water under their treaties with the federal government.

BIBLIOGRAPHY

Baxter, John O. Dividing New Mexico's Waters, 1700–1912. Albuquerque: University of New Mexico Press, 1997.

Goldfarb, William. Water Law. 2ded. Chelsea, Mich.: Lewis Publishers, 1988.

Miller, Char, ed. Fluid Arguments: Five Centuries of Western Water Conflict. Tucson: University of Arizona Press, 2001.

Pisani, Donald J. To Reclaim A Divided West: Water, Law, and Public Policy, 1848–1902. Albuquerque: University of New Mexico Press, 1992.

Rose, Carol. "Energy and Efficiency in the Realignment of Common-Law Water Rights." Journal of Legal Studies 19 (June 1990): 261–296.

Shurts, John. Indian Reserved Water Rights: The Winters Doctrine in Its Social and Legal Context, 1880s–1930s. Norman: University of Oklahoma Press, 2000.

Steinberg, Theodore. Nature Incorporated: Industrialization and the Waters of New England. New York: Cambridge University Press, 1991.