Chapter 8: Water Allocation Law
• Before 1200
• From 1848 to 1899
– Code of Hammurabi
– Justinian Code
• From 1200 to 1799
– Spanish Water Law
– English Water Law
• From 1800 to 1847
– Code Napoleon
– Riparian Doctrine
– Western U.S.
– Riparian Doctrine
– Prior Appropriate Doctrine
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From 1900 to present
– Riparian Doctrine
– Prior Appropriate Doctrine
• Groundwater Doctrines
• Interstate Compacts
– Selected River Compacts
• Federal Reserved Rights
Why do we need to allocate water?
• There has always been conflict over water
• At first there is plenty, but then a shortage
develops due to:
– drought
– increased use
• A system must be developed that allows
users to share the resources
Code of Hammurabi
• Earliest known allocation system
– From about 1795 to 1750 BCE (Before Common Era)
– 300 sections of law on many topics
• Duty of caution
– Must pay if neglectful and caused damage
– Based on system of justice
– Modern concept of torts
Sec 56. If a man has released waters
and so has let the water carry away
the works on his neighbour’s field, he
shall pay 10 gur of corn for every bur
flooded.
Justinian Code
• Created during reign of Roman Emperor Justinian I
– 483 to 565 CE (Common Era)
– Roman system of allocation
– Also known as Corpus Juris Civilis (Civil Code)
• Water in a stream is not for individual use
– It must be shared with fisherman, navigation etc.
– A riparian property can remove a de minimus amount
• Rulers were judged on their widsom
– The allocation must be equitable and efficient.
Chapter 8: Water Allocation Law
• Before 1200
• From 1848 to 1899
– Code of Hammurabi
– Justinian Code
• From 1200 to 1799
– Spanish Water Law
– English Water Law
• From 1800 to 1847
– Code Napoleon
– Riparian Doctrine
– Western U.S.
– Riparian Doctrine
– Prior Appropriate Doctrine
•
From 1900 to present
– Riparian Doctrine
– Prior Appropriate Doctrine
• Groundwater Doctrines
• Interstate Compacts
– Selected River Compacts
• Federal Reserved Rights
Spanish Allocation Law
• Alfonso the Wise, Spanish King of Castile
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Created Las Siete Partidas in 1263
Water belonged to the crown
Individuals could obtain water through grants
De minimus use was OK
• Charles I, King of Spain
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Recopilacion de leyes de los Reynos de las Indias (1516)
Encouraged the sharing of irrigation water to increase use
Concepts of beneficial use and equity
Domestic use was not controlled
Spanish Allocation Law
• Spanish allocation law was used in Spanish
settlements in the Americas including
Mexico and parts of western US (New
Mexico, Arizona, California)
• Spanish law recognized sound water
practices used by American Indians
English Common Law, 1200-1799
• Evolved in a much wetter climate
• Developed slowly over the years by the courts
• Mills received favored treatment
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Mills required dams and a large mill pond
Often caused conflicts with navigation
Upstream flooding, lower downstream flows
Mill owners were rich and dominated the courts
Farmers were poor
Mills could pay farmers for their flooded land
• Fishing was destroyed, so permits required
English Common Law, 12001799
• Maryland Mill Act 1669
– Encouraged construction of water mills
– Established 80-year leases
– Damages had to be paid to injured riparian
landowners
• Massachusetts Mill Act 1714
– Supported the concept tat mills were more
important to the public good than damages to a
few upstream landowners
Chapter 8: Water Allocation Law
• Before 1200
• From 1848 to 1899
– Code of Hammurabi
– Justinian Code
• From 1200 to 1799
– Spanish Water Law
– English Water Law
• From 1800 to 1847
– Code Napoleon
– Riparian Doctrine
– Western U.S.
– Riparian Doctrine
– Prior Appropriate Doctrine
•
From 1900 to present
– Riparian Doctrine
– Prior Appropriate Doctrine
• Groundwater Doctrines
• Interstate Compacts
– Selected River Compacts
• Federal Reserved Rights
1800 - 1847
• Code Napoleon
– Developed in France after the revolution
– Napoleon as emperor ordered compilation of
existing laws
– Provided for property ownership, individual rights
– Defined basic water rights
– Basis for development of riparian law in the eastern
US
– French influence strong in areas such as Louisiana
1800 - 1847
• Riparian Doctrine developed in eastern states of US
– Disputes often between mill owners, fishermen, and
boat owners
– Fishermen known to destroy dams to protect fishing
areas
• Rights
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Extend to middle of stream
Navigable streams could not be blocked
Riparian property could have mills, transferable
Excess water must be returned, undiminished
Injured landowners must be compensated
Tyler v. Wilinson (1827)
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First riparian rights court decision in US
Supreme Court ruling on Rhode Island case
Riparian property owner does not own water
No one could remove water to the detriment of others
Owners are given the right to use water
– This right is limited to reasonable use of the water
– If the use is reasonable, then some damage to others is OK
• The right of use is guaranteed, but not the ownership
• This is called a usufructory property right
1800 - 1847
• More and more mills were developed as
population grew
• Crowded together at key locations where there
was a drop in elevation
• Mill owners developed joint water-use agreements
• Flow measurements were important in allocating
water
Figure 8.3 This table of water power, contained in the 1880 U.S. Census,
shows a high level of sophistication for allocating river flows among mills at
Lowell, Massachusetts.
Western Water Law, 1800 - 1847
• Dry weather made the riparian doctrine
inappropriate.
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Good farm soils were far from the river
The water use was consumptive
Some small irrigation by Spanish and Indians
Mormons expanded irrigation dramatically
• Beneficial Use was the dominant doctrine
• Water was not owned by individuals, but by society
• The Mormon Bishop became the local watermaster
Brigham Young
• 1801-1877
• Arrived in Salt Lake Valley in 1847
– No man has the right to waste one drop of
water that another can turn into bread
– There shall be no private ownership of the
streams that come out of the canyons, nor the
timber that grows in the hills. These belong to
the people: all of the people.
Chapter 8: Water Allocation Law
• Before 1200
• From 1848 to 1899
– Code of Hammurabi
– Justinian Code
• From 1200 to 1799
– Spanish Water Law
– English Water Law
• From 1800 to 1847
– Code Napoleon
– Riparian Doctrine
– Western U.S.
– Riparian Doctrine
– Prior Appropriate Doctrine
•
From 1900 to present
– Riparian Doctrine
– Prior Appropriate Doctrine
• Groundwater Doctrines
• Interstate Compacts
– Selected River Compacts
• Federal Reserved Rights
Riparian Doctrine
• Little change in law
• Mill owners had developed elaborate
system for sharing water
Prior Appropriation, 1848 - 1899
• California Gold Rush 1848
• Colorado Gold Rush 1859
• Miners came from eastern US as well as
Spain, Portugal, Mexico, England, and
Wales
Gold Rush in Georgia
• Dahlonega area starting in 1828
• Georgia miners moved west with CA gold rush
• Mercury contamination of river sediments near
mining areas is a result
Dahlonega Gold Museum
Prior Appropriation, 1848 - 1899
• Gold Rush changed mining and water laws
• California and Colorado were not states (they
were Territories) and no property rights existed
– Riparian Doctrine could not apply
• Developed laws based on mining practices in
other areas
Prior Appropriation, 1848 - 1899
• Miners had to develop their own set of rules
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Miners could stake a claim, which was for their use
Claim had to be filed at the mining camp or county
Miner had to work the claim, and could be taken if not
Water was provided as first in time, first in right
Claims could be bought and sold
Enforced by vigilante committees
Senior appropriators had first use, Junior appropriators
came next
Figure 8.5 This Connected Sheet from the U.S. Department of Interior,
Bureau of Land Management records, identifies the geographic position of
individual mining claims under the General Mining Law of 1872.
Prior Appropriation
• California became a state in 1850
• Legislature declared both Riparian Doctrine and
English Common Law applied to water rights
• Irwin v. Phillips 1853
– Gold miners could divert water from a stream
under priority system, even though it hurt
downstream users
– Established the doctrine of prior appropriation
Prior Appropriation
• Based on priority dates
• Doctrine allows diversion of water to land that is
not riparian
• Use of water limited to amount beneficially used
• Water right can be sold, leased, or moved as long
as downstream senior water rights are not injured
Prior Appropriation
• California Doctrine
– Used Riparian Doctrine in humid areas
– Prior Appropriation in dry areas
– Hawaii, Kansas, Nebraska, North Dakota,
Oklahoma, Oregon, South Dakota, and
Washington adopted similar laws
Prior Appropriation
• Colorado Doctrine
– Prior Appropriation applied everywhere
– Arizona, Idaho, Montana, Utah, Nevada, New
Mexico, and Wyoming adopted similar laws
User 1: 55 cfs
User 4: 85 (260)
User 2: 62 (117)
User 5: 158 (418)
User 3: 58 (175)
User 6: 28 (446)
Figure 8.7 Illustration of priorities in Coffin v. Left Hand Ditch Company,
1882. Total allocated water is 446 cfs. Average flow is 331 cfs.
Miner’s Inch
• Old unit of water measurement used for
allocating water (cfs now used most often)
• Rate of flow through a 1 square inch hole
• 1 miner’s inch =
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9 gpm in ID, KS, NE, NM, ND, SD, UT
11.2 gpm in AZ, CA, MT, OR
11.7 gpm in CO
12.6 gpm in BC
Chapter 8: Water Allocation Law
• Before 1200
• From 1848 to 1899
– Code of Hammurabi
– Justinian Code
• From 1200 to 1799
– Spanish Water Law
– English Water Law
• From 1800 to 1847
– Code Napoleon
– Riparian Doctrine
– Western U.S.
– Riparian Doctrine
– Prior Appropriate Doctrine
•
From 1900 to present
– Riparian Doctrine
– Prior Appropriate Doctrine
• Groundwater Doctrines
• Interstate Compacts
– Selected River Compacts
• Federal Reserved Rights
Riparian Doctrine Since 1900
• Basis of water law in 31 Eastern states
• Principle of Reasonable Use
– Can use any amount as long as they don’t interfere with the
reasonable use by others
– Can not store and release water if it causes harm
– Damnum absoque injuria (harm without injury)
• Principle of Correlative Rights
– Riparian landowners mush share the total flow
– No priority, use is proportional to waterfront length
– During a drought, allocations are pro-rated so everyone receives a
share
– Newer issues related to type of use, permits – “regulated riparian”
Figure 8.8 Fertile farm ground, like this land adjacent to the St. Lawrence
River near Les Eboulements, Quebec, was surveyed into long, narrow riparian
lots so that all farmers would have frontage along the river.
Prior Appropriation Since 1900
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Used by all states west of the 100th meridian
Right of use is based on historical use and priority
Expansion requires getting a Junior permit
Must be diligent in use
– Any lapse in use and the right is lost
– Some irrigators continue to use water even though they
lose money in the hopes they can use it later
• Must be a beneficial use
– In stream flows are not a beneficial use
• Development of water markets
Figure 8.9 In this hypothetical example, the City of Greeley would like to
exchange 20 cfs from water rights it purchased along the Greeley #3 Irrigation
Canal, upstream to its water treatment facility.
Groundwater Doctrines
• Groundwater was not understood, so laws are
generally very unscientific in this area
• Rule of Absolute Ownership:
– Property owner had right to remove as much as wanted from
their own property
• Rule of Correlative Rights (Riparian, Appurtenant)
• Doctrine of Prior Appropriation
• Doctrine of Safe Yield
– Users divided into groups, farms, mines, industries, cities
– Each group had an appropriation.
– Correlative rights hold within the group
Interstate Compacts
• Not only do individuals need to share, but states
and countries also need an appropriation doctrine
• Examples:
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Colorado River Compact, 1922
Niagara River Water Diversion Treaty, 1950
Deleware River Compact, 1961
Tennessee, 1955 (quality) and 1972 (quantity)
Alabama, Coosa, Tallapoosa (ACT) Compact, 1999
Apalachicola, Chattahoochee, Flint (ACF), ongoing
Colorado River Compact 1922
• Lee’s Ferry dividing line between Upper Basin
and Lower Basin states
• Each received 7.5 million acre-ft per year
– Upper Basin states required to deliver that flow
over a 10-year average
• Appears that estimate of total flow available (15
million acre-ft) was based on an unusually wet
period
Figure 8.10
The Colorado River
Basin.
Figure 8.11 Watershed clipped to stream boundary.
Figure 8.12 Buffered stream and wells.
Figure 8.13 Wells subject to subflow ruling.
Federal Reserved Water Rights
• Winters doctrine (Winters v. United States)
– Indian Reservation treaty in Montana 1888
– Downstream withdrawal in 1905 for irrigation
– Court ruled that Indian prior appropriation rights dated
to 1888
– Since Indians were to adopt agricultural practices they
would need irrigation
– “Indian reserved rights”
• Has been applied to other federal lands such as
national parks
Summary
• Conflicts over water allocation have existed
through history
• Two main doctrines for water allocation have
evolved
– Riparian
– Prior approrpriation
• Laws are different in eastern and western states
• Compacts between states have developed