III
WATER LAW CONCEPTS
A.
Water as a commodity
1.
The U.S. Supreme Court has ruled that water is a
commodity which is subject to the Commerce Clause.
a.
B.
Therefore no state may restrain the interstate commerce of
water, even if under that state's law, water is not a commodity
which cannot be bought or sold separately from land which
abuts the water.
Three basic doctrines of surface water usage rights
1.
Riparian doctrine
a.
b.
Water rights are appurtenant to land (they run with the land).
i.
They cannot be bought or sold separately from the land
they are attached to.
ii.
They may be acquired by prescription (adverse
possession)
iii.
Water may not be used off the riparian land or outside
of the immediate watershed.
iv.
Land abutting an artificial watercourse which connects to
a natural watercourse does not result in riparian rights.
Four riparian usage rights
i.
Riparians have the right to wharf out to navigable waters
(build docks)
ii.
Riparians have the right to use the entire surface of a
body of water.
iii.
Riparians have the right to accretions & relictions, but
are not affected by avultions or revulsions.
-
Accretion: The gradual, imperceptible build up
of soil through water deposits
-
Reliction: The gradual exposure of land caused
by receding water.
-
Avultion: A sudden loss of land caused by
water action.
-
Revultion: A sudden gain of land caused by
water action.
iv.
c.
-
Natural flow doctrine (minority rule)
Each riparian owner is entitled to a
flow which is undiminished in quantity
or quality.
-
Reasonable use doctrine (majority rule)
Same as above, except that a riparian
owner is entitled to make a reasonable
use of water. There must be actual
harm demonstrated to find that a use is
unreasonable. (reasonableness is
determined by a balancing test.)
Comments on riparian rights
i.
There is no priority of rights under the riparian doctrine.
All riparians have equal rights.
ii.
Riparian rights attach to all waters regardless of
navigability.
iii.
2.
Riparians have the right to use / consume the water.
Two doctrines affect the allocation of water use in
riparian jurisdictions.
-
The riparian owner owns to the thread of a
stream or lake. However, this ownership is
subject to the rights of other riparians, and, if the
water is navigable, the riparian's
ownership is
subject to an easement held in public trust for
the public to wade, fish, swim, and navigate
upon and in the water.
-
Riparians do not own beyond the high water
mark of the great lakes. Title to the beds of the
great lakes is held by the state.
-
A navigable stream or lake is currently defined
as one which can be used for commercial or
recreational use, even if only for part of the
year. It is often determined by the log float test
or the canoe float test. If it will float a log or a
canoe, then it is navigable.
Riparian rights are not lost by disuse, but are lost by
severance from the shore (conveyance, avultion)
Appropriation doctrine
a.
Water rights are not appurtenant to land (they are a severable
commodity)
i.
They can be bought and sold separately from land
ii.
Water may be removed for use at any location.
b.
3.
C.
Water rights are acquired and retained only by sue.
i.
"Use" requires a physical diversion (majority rule)
"Use" does no require a physical diversion (minority)
ii.
Water rights can be lost by disuse
iii.
Water rights are not equal. They are prioritized by time
and by the nature of the use.
-
Older uses pre-empt newer uses.
-
The allocation can also be varied according to
the nature of the use with higher uses
pre-empting lesser uses as follows:
- domestic use
- irrigation / agricultural use
- mining & power
- recreation & wildlife
California or Equitable Appropriation doctrine
a.
Used by federal courts to resolve water usage disputes between
states.
b.
A compromise between the riparian and appropriation doctrines.
c.
The appropriation doctrine provides the starting point with an
emphasis on highest / lowest use priorities.
d.
Then modify the appropriation doctrine by:
i.
Not protecting wasteful uses, regardless of type.
ii.
Requiring all parties to mitigate their uses by employing
conservation practices, and
iii.
Balancing the respective hardships of the parties.
Sub-surface water law concepts
1.
Fee owners have the right to drill for water on their lands.
a.
2.
This right is severable however, and can be conveyed.
Land owners do not own the sub-surface waters beneath
their lands.
a.
Note that this applies only to "percolating" waters, i.e. water
contained in the pores of saturated soil and rock formations.
Water which is contained in underground streams with well
defined channels ( such as streams and pools in caves) is
treated the same as surface water.
3.
4.
D.
Those who drill and extract sub-surface water do not have
an absolute right to remove water, they only have a right to
a reasonable use of the water.
a.
There is no liability for damages to adjoining neighbors if a
person drills a well and depletes the groundwater, thus denying it
to the neighbors.
b.
However, if a person drills a well and their use of the extracted
water is declared to be unreasonable, then injunctive relief is
available to prevent or lessen the use.
Generally, sub-surface water law is similar to the equitable
appropriation doctrine.
Drainage law concepts
1.
Two basic doctrines
a.
Common enemy law (majority rule)
i.
b.
Roman civil law (minority rule - Michigan law)
i.
E.
Water is a common enemy and all land owners have the
right to prevent water from being drained onto
their lands. (Land owners can build barriers to
prevent water from flowing onto their properties.)
The owner of high ground has a right to drain their
lands. (But there is no right to artificially concentrate
and discharge water onto neighboring lands. Liability
will result if neighboring properties are damaged by such
a discharge.)
All of the preceding are common law doctrines which have
been modified by several statutes.
1.
Federal statutes include, but are not limited to:
a.
b
c.
d.
2.
Wild & Scenic Rivers Act
National Environmental Protection Act
Clean Water Act
various Corp of Engineers regulations
Michigan statutes include, but are not limited to:
a.
b.
c.
d.
e.
f.
g.
Inland Lakes & Streams Act
Great Lakes Submerged Lands Act
Soil Erosion & Sedimentation Control Act
Michigan Environmental Protection Act
Goemare-Anderson Wetlands Act
Drain code
various Department of Natural Resources regulations