traditional water rights & reservations of water - a river management perspective - david w....
TRANSCRIPT
“Traditional” Water Rights &
Reservations of Water
A River Management Perspective
April 15, 2014
Managing Rivers in Changing Climes: Training Tomorrow’s River Professionals
David W. Schade MPA
Section Chief
Atwood Building 550 W. 7th Ave., Suite 1020 Anchorage, Alaska 99501 PHONE (907) 269-8645 FAX (907) 269-8904
SEAN PARNELL, GOVERNOR
DEPARTMENT OF NATURAL RESOURCES DIVISION OF MINING, LAND & WATER
Water Resources Section
Facts: Water in Alaska
586,412 Square Miles of Land Area
43 % of the Alaska is wetlands
Over 3 Million Lakes > 1 acre
Up to 15 Million Miles of “potentially” navigable
waterways
Prior Appropriation Doctrine
Constitutional Public Trust Doctrine
The States hold title to submerged lands in their sovereign
capacity “in trust for the people of the state,
that they may enjoy the navigation of the
waters, carry on commerce over them, and have liberty of
fishing therein, freed from the obstruction or
interference of private parties.”
Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 452 (1892).
Public Trust Doctrine
Public Trust Doctrine
This United State Supreme Court has
established the public trust character of
submerged lands.
See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473 (1988)
Submerged Lands Act of 1953
The federal government retains:
…the constitutional authority of the United
States of said lands and waters for the
purposes of navigation or flood control or
the production of power, ….
Non-Navigable Waterways
Ownership of the land under the non-navigable
waterway is owned in some portion by the upland
landowner.
State Public Trust Law ; may give some public use
rights to the waterway, despite the submerged lands
ownership (title) status
Upland Riparian Rights
As Related to river management:
Right to control access to river across private
property
Right to have access to river
Right in some states (eastern states) to use water in
reasonable quantities.
Prior appropriation rights which are appurtenant to
land (western states)
Water Rights
States Control of Water Rights
Subject to: _________
Water Allocation Principles
Waters subject to Water Rights
Reservations of Water
Purposes of reservations
Ways to establish reservations
States Control of Water Rights
are subject to:
McCarran Amendment:
Limited waiver of federal sovereign immunity for
purpose of water rights litigation
This include Indian (Reservation) water rights
States Control of Water Rights
are subject to:
Interstate Adjudications which can be done by
multi-state compacts which are then ratified by
Supreme Court decision or Congressional
Action
States Control of Water Rights
are subject to:
US Treaties regarding International Waters –
coming into and out of the United States.
Canada http://ijc.org/en_/Transboundary_Basins
Mexico http://ibwc.state.gov/home.html
Water Allocation Principles:
Riparian or Common Law Principle: Owners of lands
on the banks of a river are entitled to the continual
flow or use of the stream.
Prior Appropriation Doctrine:
First in time is first in right.
Harmon Doctrine:
A right to appropriate all the waters of this stream
for purposes of irrigating its soil and making more
valuable it own territory.
Waters subject to Water Rights
Surface Water
Fresh
Brackish
Salt (?)
SubsurfaceWater
Fresh Water Confined aquifer
Unconfined aquifer
Reservation of Water
A reservation of water (sometimes called an in-
stream flow reservation) is a water right which
has the purpose of leaving a specific flow or
level of water reserved in a river, lake or water
bodies for the purpose described.
Types of Purpose:
For the protection of fish and wildlife habitat,
migration and propagation.
For the purposes of navigation and transportation.
For park and recreational purposes.
For sanitary or water quality purposes.
Ways to establish reservations
By application for a water right of unappropriated or
unreserved water by state agency or private parties.
By purchase or gift of private water rights to a state
agency.
By statutory authority of a state agency established to
set reservation quantities.
Conclusions:
Access and Water Law is often complicated and inter-related.
Multiple jurisdictions are usually involved in a large water system.
Understanding the law and principles of water allocation and use in the jurisdictions in which the manager is operating is critical to successful management.
Sources:
http://legal-dictionary.thefreedictionary.com
http://en.wikipedia.org/wiki/Prior-appropriation_water_rights
http://en.wikipedia.org/wiki/Riparian_water_rights
http://ijc.org/en_/Transboundary_Basins
http://ibwc.state.gov/home.html
Waters and Water Rights, Volumes 1 – 6 , Robert Emmet Clark, Editor in Chief
Allen Smith Company, Indianapolis, Indiana
Water Law, William Goldfarb, Buttersworth Publishers, Stoneham, MA
The Law of International Water Courses, Non-Navigational Uses, Stephen C. McCaffrey
Oxford University Press, Oxford, NY
Shore and Sea Boundaries, Volumes 1-3 Aaron L. Shalowitz, US Dept of Commerce, Coast and Geodetic Survey
US Government Printing Office, Washington, DC.
Legal Cases as cited and State Statutes as Published, including but not limited to: PPL Montana v Montana 132 S.Ct. 1215 (2012).
Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473 (1988)
Arizona v California, 373 U.S. 546, 587, 10 L. Ed 2nd 542, 570, 83 Sup. Ct 1468, 1491 (1963)
Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 452 (1892).
The Daniel Bll, 77 U.S. (10 Wall) 557 19 L. Ed. 999 (1870)