Water right - AbsoluteAstronomy.com

This article discusses water usage laws in common law. For a discussion of the right to water as a human right under international law, see right to water
Right to water
- Introduction :The number of people lacking access to safe drinking water is 884 million and more than 2.6 billion miss a basic sanitation.When taken as human right, the right to water places certain responsibilities upon governments to ensure that people can enjoy "sufficient, safe, accessible...

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Water right in water law

Water law

Water law is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, but has also become influenced by environmental law...

refers to the right

Right

Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...

of a user to use water

Water

Water is a chemical substance with the chemical formula H2O. A water molecule contains one oxygen and two hydrogen atoms connected by covalent bonds. Water is a liquid at ambient conditions, but it often co-exists on Earth with its solid state, ice, and gaseous state . Water also exists in a...

from a water source, e.g., a river, stream, pond or source of groundwater

Groundwater

Groundwater is water located beneath the ground surface in soil pore spaces and in the fractures of rock formations. A unit of rock or an unconsolidated deposit is called an aquifer when it can yield a usable quantity of water. The depth at which soil pore spaces or fractures and voids in rock...

. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid

Arid

A region is said to be arid when it is characterized by a severe lack of available water, to the extent of hindering or even preventing the growth and development of plant and animal life...

areas where irrigation

Irrigation

Irrigation may be defined as the science of artificial application of water to the land or soil. It is used to assist in the growing of agricultural crops, maintenance of landscapes, and revegetation of disturbed soils in dry areas and during periods of inadequate rainfall...

is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water

Surface water

Surface water is water collecting on the ground or in a stream, river, lake, wetland, or ocean; it is related to water collecting as groundwater or atmospheric water....

and ground water in the same manner, while others use different principles for each.

Types of water rights

There are fundamental differences between the nature and source of water rights in different countries, including that they can be land-based rights, use-based rights, or rights based on ownership of water bodies. In addition, some countries apply the principle of water solidarity, which has become increasingly important in the EU. This principle attempts to reconcile water rights through compromise solutions based on the public interest, and it has been written into legislation in France

France

The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

, for example.

Land-based or riparian rights

Riparian rights

Riparian water rights

Riparian water rights are system for allocating water among those who possess land about its source. It has its origins in English common law...

are based on land ownership, and are protected by property law

Property law

Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...

. Riparian rights state that only the owner of the banks of the water source have a right to the 'undiminished, unaltered flow' of the water. Riparian rights are only transferable when the riparian land ownership title is transferred to a new owner.

Use-based rights

Use-based water rights are protected by the law of torts. Use-based rights state that land ownership is not essential, as long as water users have legal access to the water source. There is a hierarchy of use, where the first user has the strongest rights (first in, first served). Rights users can only enforce rights against users with lower ranks (those who came later). Use-based rights are usufructuary, fully transferable to anyone.

Water rights based on ownership of water bodies

In Finland

Finland

Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...

, for example, waterbodies are generally privately owned, which is not the case in most EU countries, but Finland also applies the Roman law

Roman law

Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...

principle of aqua profluens (flowing water), according to which the freely flowing water in waterbodies cannot be owned or possessed. This means that the owners of waterbodies cannot prohibit diversion of water for agricultural, industrial, municipal, or domestic use according to the provisions of the Finnish Water Law and cannot prohibit use of the waterbodies for recreational purposes.

History of water rights

In Roman times, the law was that people could obtain temporary usufructuary rights for running water. These rights were independent of land ownership, and lasted as long as use continued. Under Roman law, no land was "owned" by citizens, it was all owned by the "republic" and controlled by politicians.

In Medieval times, the common law of the day treated an all freshwater streams as static, meaning landowners owned parts of rivers, with full accompanying rights. Landowners could also seek damages for loss of water diverted upstream. Non-landowners did not have use rights, except by obtaining a prescription.

Over time, rights evolved from being land based to use based, allowing non-landowners to hold enforceable rights. A reasonable use theory evolved in some countries.

Water rights in the United States

In the United States

United States

The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, there are two divergent systems for determining water rights. Riparian water rights

Riparian water rights

Riparian water rights are system for allocating water among those who possess land about its source. It has its origins in English common law...

(derived from English

England

England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

) are common in the east and prior appropriation water rights

Prior appropriation water rights

Prior appropriation water rights, sometimes known as the Colorado Doctrine in reference to the U.S. Supreme Court case Wyoming v. Colorado, is a system of allocating water rights from a water source that is markedly different from riparian water rights...

(developed in Colorado

Colorado

Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...

and California

California

California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

) are common in the west. Each state has its own variations on these basic principles, as informed by custom, culture, geography, legislation and case law. California

California

California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

law, for example, includes elements of both systems. In general, a water right is established by obtaining an authorization from the state in the form of a water right permit. A legal right is formally consummated, or perfected, by exercising the water right permit and using the water for a beneficial purpose.

Under the prior appropriation doctrine, water rights are "first in time, first in right." That is, the older, or senior, water right may operate to the exclusion of junior water rights. The concept of "priority date" is significant. The priority date is generally associated with the date that water was first put to beneficial use, or the date that a successful application for a water right was submitted, and indicates the relative status of seniority among competing users. Older rights are senior. More recent rights are junior.

Water rights are generally established pursuant to State law, but there are exceptions, most notably, the concept of federal reserved water rights. Reserved water rights are rights that are established when the federal government reserves land for a specific federal purpose. Courts have held that there is an implied water right to satisfy the primary purposes of the reservation http://www.blm.gov/nstc/WaterLaws/fedreservedwater.html. Examples of reservations include Indian reservations, national wildlife refuges, federal forests and military bases.

Proceedings to determine the relative priority of claims to water rights are known as adjudication

Adjudication

Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved....

s. Through Congress's passage of the McCarren amendment, the federal government has consented to having its claims adjudicated in state courts.

All states offer mechanisms for changing how a water right is exercised, e.g., amending the point of diversion or withdrawal, the place of use and the purpose of use. In reviewing such requests, the state must guard against the impairment of other water rights, the enlargement of the water right and injury to the public interest.

Resolution of Interstate Water Conflicts

Because water bodies may cross political and jurisdictional boundaries, conflicts may arise. In the United States, three basic approaches are used to settle such conflicts: 1) Litigation before the Supreme Court of the United States

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

; 2) Legislative resolution by the Congress of the United States; and 3) Negotiation and ratification of interstate compacts between states. In the western United States, for example, the 1922 Colorado River Compact

Colorado River Compact

The Colorado River Compact is a 1922 agreement among seven U.S. states in the basin of the Colorado River in the American Southwest governing the allocation of the water rights to the river's water among the parties of the interstate compact...

divides the Colorado River basin into two areas, the Upper Division (comprising Colorado, New Mexico, Utah and Wyoming) and the Lower Division (Nevada, Arizona and California). A comprehensive review of existing interstate water compacts has been published by the Model Interstate Water Compact Project at the University of New Mexico School of Law's Utton Transboundary Resource Center.

Limitations on water rights

In California, courts have held that appropriation water rights may be limited under the public trust doctrine

Public trust doctrine

The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.-Origins:...

, a common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

principle recognized by some courts, which holds that the public has access rights upon navigable waters and that navigable waters are held in trust for the use of the people. The public trust doctrine was invoked by the California Supreme Court in a case restricting the amount of water Los Angeles could divert from tributaries of Mono Lake

Mono Lake

Mono Lake is a large, shallow saline lake in Mono County, California, formed at least 760,000 years ago as a terminal lake in a basin that has no outlet to the ocean...

. The case was filed by the Audubon Society and the Mono Lake Committee

Mono Lake Committee

The Mono Lake Committee is an environmental organization based in Lee Vining, California in the United States. Its mission is to preserve Mono Lake, by reducing diversions of water from the Eastern Sierra watersheds by the Los Angeles Department of Water and Power .The Committee was founded in...

.

In the United States, Navigable waters are subject to the commerce clause

Commerce Clause

The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...

of the U.S. Constitution. The commerce clause provides the federal government the ability to restrict state issued water rights via, for example, the enforcement of water quality standards via the Federal Water Pollution Control Act (Clean Water Act), the Federal Power Act

Federal Power Act

The Federal Power Act is a law appearing in Chapter 12 of Title 16 of the United States Code, entitled "Federal Regulation and Development of Power". Enacted as the Federal Water Power Act on June 10, 1920, and amended many times since, its original purpose was to more effectively coordinate the...

and the protection of endangered species

Endangered species

An endangered species is a population of organisms which is at risk of becoming extinct because it is either few in numbers, or threatened by changing environmental or predation parameters...

via the Endangered Species Act

Endangered Species Act

The Endangered Species Act of 1973 is one of the dozens of United States environmental laws passed in the 1970s. Signed into law by President Richard Nixon on December 28, 1973, it was designed to protect critically imperiled species from extinction as a "consequence of economic growth and...

External links

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.