NEW HAMPSHIRE WATER LAW: AN INTERPRETIVE OVERVIEW1

ABSTRACT: New Hampshire's riparian water law, first modified judicially, has been more drastically changed by recent legislative and administrative action. As it stands, however, the judicially enforced doctrine of reasonable use appears to be utterly inadequate to handle increasing water demands. The protection of the public interest has imposed substantial limitations on the use of riparian water rights, all under the guise of the exercise of the police power, i.e., the protection of the public health, safety, and welfare. The efficient use of the state's water resources has been further crippled by the widespread and indiscriminate exercise of eminent domain. As a result, the state is now considering the imposition of a permit system that has the potential to streamline the allocation of water. Such a system should take into consideration the public interest factors that have recently frustrated the exercise of riparian rights and the effective use of the state's water resources.     

PROBLEMS OF PUBLIC ACCESS TO WATER IN TEXAS LAKES AND STREAMS1

ABSTRACT: Rapidly increasing demand for recreational use of Texas' public waters is resulting in growing conflict between riparian landowners and the public. This paper examines the public access question, certainly one of the most poorly defined and understood areas of Texas water and property law. Since the appropriation acts of the late 1800's, most surface waters are owned by the state, and are held in trust for the benefit of the people. While there is no express statutory authority giving the general public the right to use these waters, there is extensive, if often conflicting, case law recognizing such rights on navigable streams. It is equally well established that the public may not gain access by crossing private property. Definition of public and private rights is complicated by the fact that Texas land grants (with their attendant property rights) have emanated from Spain, Mexico, the Republic of Texas, and the state. Obstacles imposed by riparian landowners to public entry, use and passage, as well as spatial aspects of access, are also considered. Because public access rights are based on the peculiar circumstances of each case, it is difficult to establish general legal principles, and there is almost no reliable information to aid the recreation-seeking public. A clear legislative enunciation of public rights appears politically infeasible at present, the most immediately attainable goal lying in the area of better public education.     

CONJUNCTIVE MANAGEMENT OF WATER RESOURCES IN THE CONTEXT OF TEXAS WATER LAW1

ABSTRACT: This paper examines the critical interaction between existing Texas water law and the state's water resources. Conjunctive use and management of interrelated water resources, though seldom practiced, is generally considered desirable. However, a significant barrier to the coordinated, efficient use and management of water resources is the legal division of water in the various phases of the hydrologic cycle into different classes and recognition of well-defined water rights in the separate phases. Several examples of the problems which relate to, or result from, present Texas water law and which prevent correlated water resource management are discussed. Any substantive revision of Texas law, particularly ground water law, will apparently be difficult to achieve in the immediate future, primarily because of the large number of recognized private water rights and the political power inherent in them. Data necessary for operation of conjunctive management systems are gradually being acquired, and perhaps someday other hydrologic phases can be integrated with surface and ground water. Nevertheless, Texas courts and the legislature have sufficient information on the interrelated hydrologic cycle so that prospective water conflicts should be anticipated and avoided. Great care must be exercised in the recognition of new types of private water rights or extension of existing rights, because this institutional structure, once established, presents a formidable obstacle to desirable revisions of the law.     

INSTITUTIONALIZED INEFFICIENCY: THE UNFORTUNATE STRUCTURE OF COLORADO'S WATER RESOURCE MANAGEMENT SYSTEM1

ABSTRACT: This analysis identifies two basic structural features of Colorado's water management system which inhibit constructive reform and perpetuate inefficiencies in water use and distribution patterns. These features are: (1) the fragmentation of authority and influence over water, and (2) the estrangement of interest in reform from formal control over water policy. These interrelated features have continued to produce: sporadic, high conflict battles over proposed changes in the status quo; decision making which tends to exaggerate the importance of narrow, special interests while virtually ignoring legitimate interests of major sectors of the public; an inertia which discourages innovation; and an agglomeration of rules and water rights that are predicated on obsolete social and economic needs. Two radical proposals for reforming the state's water resource management system in order to overcome these problems and to enhance the probability that wise water policy will result are offered. These proposals are: (1) the abolition of the present system of water rights founded on the doctrine of prior appropriation, and (2) the consolidation of authority over water allocation in a single board of governors.     

WATER MARKETING: THE CASE OF INDIAN RESERVED RIGHTS1

ABSTRACT: Water marketing is an increasing important topic for policy makers and water managers, especially in the Western United States. Indian reserved rights (or Winters rights) differ in significant ways from water rights under most state prior appropriation systems. As Winters rights are quantified, a number of issues are emerging concerning the extent to which these water rights may be marketed, particularly to off-reservation users. This paper will review the evolution of Indian reserved water rights and discuss key issues surrounding the marketing of these rights.     

THE ECONOMIC EFFECTS OF CHANGES IN WATER USE IN THE TUCSON BASIN,ARIZONA1

ABSTRACT: The ground water in the Tucson basin is being drawn faster than it is replenished by nature. The water table is falling, giving rise to several conflicts between water users in the basin. At present, several lawsuits are in progress, including an action by the Papago Tribe against some of the major water users in the basin. Largely because of these difficulties, the State Legislature has established a commission to make proposals for the reform of Arizona's ground water law. The pattern of water use in the basin will undoubtedly be changed by the outcome of the present litigation and the coming reform of Arizona's ground water law. This paper describes how water use in the basin might be affected by changes in the availability of water and gives an account of the effects that these changes in water use could have on the region's economy. The paper concludes that the water problems of the Tucson basin will have little effect on the region at large and that these problems are simply a matter for the Indians and the other water users in the basin to sort out amongst themselves.     

THE LEGALIZATION OF GROUNDWATER STORAGE1

ABSTRACT: California's courts have recently recognized the existence of underground aquifer storage rights that permit public agencies to (1) store imported waters in aquifers; (2) prevent others from expropriating that water; and (3) recapture the stored water when it is needed. The article describes the two appellate decisions that represent the common-law development of aquifer storage rights. Each decision related to separate aquifers that were subject to separate types of groundwater management programs. One decision involved an aquifer under the southeastern San Francisco Bay area that was managed under statutory authority and is entitled, Niles Sand and Gravel Co. v. Alameda County Water District 37 C.A.3d 924 (1974); cert. denied 419 US 869. The other decision involved an aquifer under Southern California's San Fernando Valley that was managed under judicial authority and is entitled, City of Los Angeles v. City of San Fernando 14 Cal.3d 199 (1975). The two decisions provide separate, but complimentary, public interest rationales for aquifer storage rights: (1) to protect water supplies necessary for the overlying community; and (2) to increase water supply efficiencies by using natural underground reservoirs wherever practicable. The Article reviews the relationship of aquifer storage rights to conventional groundwater rights and indicates aspects of the storage right that may need additional development.     

THE REGULATED RIPARIAN VERSION OF THE ASCE MODEL WATER CODE: THE THIRD WAY TO ALLOCATE WATER1

ABSTRACT: Lawyers, engineers, and hydrologists are accustomed to thinking of water law as falling into one of two incompatible models: riparian rights (under which water is allocated by courts according to the relative reasonableness of the competing uses) and appropriative rights (under which water is allocated according to the temporal priority of the competing uses, largely by the action of the water users themselves but perfected by the issuance of an administrative permit). Usually unnoticed is the existence of a third approach, which I have dubbed “regulated riparianism.” Under regulated riparianism, water is allocated by water permits issued after an administrative determination of the reasonableness of the proposed use before the use is commenced. This system, now in place in about half of the states east of Kansas City (plus Hawaii), thus is fundamentally different from either the traditional ripanan rights that it replaces or the appropriative rights found in western states.     

Injustice and organisation in Anchicayá, Colombia: an environmental legal case in a hydropower watershed

The paper looks at Colombia's first major environmental justice legal case involving a riparian Afro-Colombian community and the Pacific Energy Company (EPSA). Riverine Afro-Colombian communities gained political recognition as a culturally distinct group largely based on their conservation practices in riparian environments. The work contrasts the complexities of the case with the vulnerable reality of the people of Anchicayá who largely live in conditions of poverty, violence and political isolation. It also describes the institutions that frame watershed management, the ethnic rights to collective land and self-governance and the property rights of energy companies in the backdrop of decentralisation reforms that clarified different types of property rights and refounded Colombia as a multicultural nation. The legal suit, however, demonstrates that the government failed to offer equal protection to collective versus private cultural and socio-economic uses of land and water in order to protect energy investments. The Constitutional Court's jurisprudence ultimately privileged technical and legal know-how and overlooked the limits community intermediaries face offering similar evidence. By doing so, the court not only disregarded the constitutional rights of Afro-Colombians, but it also failed to mitigate a socio-environmental conflict.     

QUANTIFICATION OF INSTREAM FLOW NEEDS OF A WILD AND SCENIC RIVER FOR WATER RIGHTS LITIGATION1

ABSTRACT: The lower 4 miles of the Red River, a tributary of the Rio Grande in northern New Mexico, was designated as one of the “instant” components of the National Wild and Scenic River System in 1968. The Bureau of Land Management (BLM), as the managing agency of the wild and scenic river, was a participant in a general water rights adjudication of the Red River stream system. The BLM sought a federal reserved water right and asserted a claim to the instream flows necessary to protect and maintain the values of the river. Instream flows are not recognized under New Mexico water law. Instream flow requirements were determined by several methods to quantify the claims made by the United States for a federal reserved water right under the Wild and Scenic Rivers Act. The scenic (aesthetic), recreational, and fish and wildlife values are the purposes for which instream flow requirements were claimed. Since water quality is related to these values, instream flows for waste transport and protection of water quality were also included in the claim. The U.S. Fish and Wildlife Service's Instream Flow Incremental Methodology was used to quantify the relationship between various flow regimes and fish habitat. Experience in this litigation indicates the importance of using state-of-the-art methodologies in quantifying instream flow claims. The incremental methodology held up well under technical and legal scrutiny and is an example of the latest methodology that was applied successfully in an adjudication. On February 23, 1984, the parties involved in the adjudication entered a precedential stipulation recognizing a federal reserved right to instream flows for the Red River component of the National Wild and Scenic River System.     

TREATING WATER INSTITUTIONS AS ENDOGENOUS VARIABLES: DEMONSTRATION OF A CONCEPTUAL MODEL1

ABSTRACT: Institutional innovation is central to many water resource problems. (In this context “institutions” refers to the laws and regulations governing water allocation and use.) Yet, typically, economic analyses treat institutions as exogenous and fixed. Unfortunately, this conventional assumption does not allow economists to address many modern problems. This paper develops an economic framework in which institutions are treated as endogenous. The model accounts for (1) factors that stimulate calls for formal institutional change, (2) the role of interest groups in policymaking, and (3) actual institutional change as it impacts choice domains and thus economic performance. The model is compared to a specific case of change in Colorado's water institutions, namely, instream water rights legislation in the 1970's. The empirical evidence is generally consistent with model hypotheses. The model promises to be useful to scholars and policymakers interested in institutional innovation.     

COOPERATIVE MANAGEMENT OF THE DUNGENESS WATERSHED TO PROTECT SALMON IN WASHINGTON STATE1

ABSTRACT: Over the last decade, the Jamestown S'Klallam Tribe has formed partnerships with their neighboring county government, irrigation districts, property owners, and state and federal agencies in an effort to save the dwindling runs of Dungeness River salmon. Although considerable progress has been made to begin the recovery process, the watershed is included in recent listings of Pacific Northwest salmon under the Endangered Species Act. Under the coordination of an active watershed council, significant improvements have been made in water conservation and the protection of instream flows. Cooperation between the Tribe, irrigation districts and the Washington Department of Ecology resulted in a trust water rights agreement and the reduction of late summer water withdrawals by one‐third.     

DEVELOPMENT OF FEDERAL RESERVE RIGHTS1

ABSTRACT: The concept that has been termed “Indian Rights to Water” is one manifestation of the area of federal reserved rights that is a major concern of states in arid regions. The federal reserved rights are those that are reserved in fact or by implication in federal actions, acts, reservations, and treaties. Federal actions include such things as navigation improvement and flood control projects. The Federal Court System, since the Civil War has been promulgating, developing, and protecting federal reserved water rights. The development of those rights can be traced from early cases through the landmark cases such as U.S. v. Rio Grande and Irrigation Co. (1899); Winters v. U.S. (1908) with the origin of the Winters' Doctrine of Indian Rights; Federal Power Commission v. Oregon, commonly called the Pelton Dam Case (1955); Arizona v. California (1963); U.S. v. District Court for Eagle County (1971); to existing suits on surface water sources such as that on appeal in regard to reserved federal water rights on the Truckee River. It can be shown that the federal position has been consistent through all the years in that the federal rights have been protected, expanded, developed, and preserved in a more or less predictable manner.     

INTERBASIN WATER TRANSFERS IN RIPARIAN STATES: A CASE STUDY OF GEORGIA1

ABSTRACT: Under the riparian doctrine of eastern states, transfers of water to nonriparian lands and, thus, to different river basins, are only possible if the natural flow theory has been modified to allow for reasonable use. Even this adaptation is too nebulous to provide water managers and water users with certainty regarding water transfers. To provide a more precise mechanism for allocating water, 14 eastern states have adopted some form of administrative permitting process. Of these, five states statutorily allow for interbasin transfers of water. Thus far, no states have successfully issued permits for interbasin water transfers but Georgia and South Carolina are positioned to do so. Whether the permitting process will deter court action may rest on the ability of affected parties to negotiate an equitable agreement.     

The Role of Water Doctrines in Enhancing Opportunities for Sustainable Agriculture in Alabama1

Abstract: Alabama is a water rich state. Yet, agriculture is limited in both scale and productivity and the state regularly suffers from drought. Climate variability adds to this paradox even while water users, particularly farmers, have few coping mechanisms. In this paper, we argue that more significant than the water resource itself in Alabama is the governance structure of that resource. The riparian doctrine, as it stands, stymies effective management. The role of water doctrines, and resultant policy, is, therefore, crucial to enhancing decision‐making opportunities for agricultural end‐users in Alabama. After exploring different doctrine types as applied across the states we conclude that a move towards “regulated riparianism” consistent with the American Society of Civil Engineers Regulated Riparian Water Code (2004) would enhance opportunities for both the state and agriculturalists to cope with variable water supply conditions while maximizing environmental benefits. The paper then concludes with a review of the primary objectives of the Water Code and key places where Alabama’s Water Code would need revision to meet these objectives.     

THE IMPACT OF STOCKWATERING PONDS (STOCKPONDS) ON RUNOFF FROM LARGE ARIZONA WATERSHEDS1

ABSTRACT: Major water rights adjudications involving the Little Colorado River Basin and Gila River Basin are presently underway within Arizona. Water resource managers are faced with the prospect of evaluating and regulating tens of thousands of water diversions and uses. Stockponds comprise a large percentage of the total number of water diversions within these basins. Water balance studies conducted on the Little Colorado River watershed above Lyman Lake and on the Gila River watershed above Solomon, Arizona, indicate that the impact of stockponds on the water available to downstream users is insignificant when compared to total watershed production. Considering that there are an estimated 25,000 stockponds in the Gila River basin alone, rigorous case-by-case investigations and stringent regulation of individual stockponds may be impractical and unwarranted. Therefore, stock-pond claims within the context of the general adjudication process may be effectively handled by partial summary judgment, thereby allowing the court to concentrate on major water users and water rights issues.     

PRIVATIZING THE GROUND WATER RESOURCE: INDIVIDUAL USE AND ALTERNATIVE SPECIFICATIONS1

ABSTRACT: While most inquiries into improving the efficiency of ground water allocation have focused upon various schemes involving centralized management, recently the focus has shifted towards exploring private property solutions to these problems. However, most of these studies, when modeling ground water use, have equated behavior under private property to that under common property conditions. This leads to the possibly mistaken conclusion that private property rights do not promote more efficient ground water use, because these models assume that producers ignore the future effects of current pumping. This paper attempts to correct this deficiency by formally modeling ground water use under common property, central management, and private property scenarios. Moreover, there are many ways that property rights can be defined over ground water, some establishing more exclusivity over the resource than others. Four specifications of property rights are analyzed for their likely effects on allocative efficiency: full stock-flow, partial stock-flow, limited stock-flow, and pure flow rights.     

THE SOCIAL CONTEXT OF WESTERN WATER DEVELOPMENT1

ABSTRACT: Social scientists were included in the planning and design for an integrated, trans-basin water resource project. Within this complex project, a socioeconomic impact assessment (SIA) concentrated on identifying the social, political, and economic issues and potential impacts inherent in developing a city's water rights. Before the SIA began, some of the development alternatives had already generated widespread hostility and organized opposition from communities within the watershed. The SIA involved residents of affected communities in the study design and project planning. The study found a number of components that constituted the concerns, beliefs, and expectations about perceived, potential impacts that might result from the different alternatives. In most cases these issues constituted threats to valued environmental resources, valued community resources, the social environment, the economic base, and a secure future. The social science component was a key factor in the ultimate decision to pursue a particular alternative which was sensitive to the social and political issues, minimized environmental and socioeconomic impacts, and ultimately had support among the communities potentially affected. The experience from this case study suggests that the approach used can be applied successfully in the planning of other water development projects and result in cooperation from the wide range of interest groups that often present costly obstacles to such projects.     

RIVER RECREATION: PUBLIC ACCESS VS. RIPARIAN RIGHTS1

ABSTRACT: The issues involved in the conflict between the rights of the public and those of riparian landowners are examined by reviewing the public access situation with regard to inland streams in the State of Virginia. Consideration is given to the legal framework defining access rights and to the attitudes of riparian landowners regarding the access question. Existing provisions of law suggest only limited recognition of public rights, but this law is incompletely developed. A considerably broader concept of public rights could be developed within the existing framework due to the existence of unresolved questions. The analysis of landowner attitudes is based on a survey of a sample of riparian owners chosen from throughout the state. The questionnaire used in the survey contained 123 questions in a variety of areas, including landowners' perceptions of public rights, problems encountered as the result of recreational water use, attitudes toward state designation and protection of scenic rivers, and the acceptability of alternatives for increasing public access. Although the survey results indicate substantial acceptance of the concept of public use, the landowners expressed concern over governmental control of land use and did not indicate a generally acceptable means for increasing public use.