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Published on February 12, 2008

Author: Stella

Source: authorstream.com

Slide1:  Who Owns the Water? Jesse J. Richardson, Jr. Associate Professor Urban Affairs and Planning Virginia Tech 540-231-7508 jessej@vt.edu Growing Communities on Karst – III “Water Quantity” National Conservation Training Center Shepherdstown, West Virginia September 13, 2006 Slide2:  Overview Recent drought conditions and water shortages have placed water rights at the forefront of public attention. This presentation briefly addresses: Common law water rights in West Virginia, Virginia and Maryland Statutory changes to common law rights in West Virginia, Virginia and Maryland Public Trust Doctrine Waters of the State Takings Conclusions Slide3:  Legal Classification Surface streams and lakes Groundwater in identifiable streams or channels Percolating groundwater Stormwater Slide4:  Ownership of Property as a Bundle of Sticks We often say that owning real estate is like owning a bundle of sticks, each stick representing a different right In the Eastern United States, one stick in the bundle represents the right to use the water adjacent to or beneath the property Slide5:  Common Law Surface Water Rights Two main doctrines: - Prior Appropriation “First in time, first in right” - Riparian Rights right to reasonable use of surface water abutting the property must benefit the parcel rule of sharing West Virginia, Virginia and Maryland use the Riparian Rights Doctrine Slide6:  Groundwater Water, whether moving or motionless in the earth, is not, in the eye of the law, distinct from the earth. The laws of its existence and progress, while there, are not uniform, and can not be known and regulated. It rises to great heights, and moves collaterally, by influences beyond our apprehension. The influences are so secret, changeable and uncontrollable, we can not subject them to the regulations of law, or build upon them a system of rules, as has been done with streams upon the surface. Priority of enjoyment does not, in like case, abridge the natural rights of adjoining proprietors. Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352 (1850), cited in Miller v. Black Rock Spring Company, 99 Va. 747, 40 S.E. 27, 86 Am. St. Rep. 924 (1901). Slide7:  Common Law Groundwater Rights Absolute Dominion Rule Owner of land overlying aquifer may use all the groundwater he wishes (law of the biggest pump) Later added exception: malicious withdrawals 10 states Slide8:  Common Law Water Rights- American Rule Reasonable Use Rule This rule grants the right to use the water to the owner of overlying land who is able to withdraw the water Use is only legally protected if it is: - made on the overlying tracts and, - a “reasonable” use Lift prohibited (per se unreasonable) 20 states Slide9:  Common Law Water Rights- Restatement of Torts A reasonable use rule that is basically an adoption of the riparian rights reasonable use rule Owner may withdraw groundwater form the land and use it for a beneficial purpose without liability for interference with the use of water by another unless (a) the withdrawal of groundwater unreasonably causes harm to the proprietors of neighboring land through lowering of the water table or reducing the artesian pressure, (b) the withdrawal of groundwater exceeds the proprietor’s reasonable share of the annual supply or total store of groundwater, or (c) the withdrawal of groundwater has a direct and substantial effect upon a water course or lake and unreasonably causes harm to a person entitled to the use of the water 2 states Slide10:  Common Law Ground Water Rights – Correlative Rights Allocation strictly according to a rule of proportionality – usually in proportion to the land overlying the aquifer 4 states South Carolina has no meaningful common law for ground water Slide11:  Maryland and West Virginia? Both use the American Rule Finley v. Teetor Stone, Inc., 248 A.2d 106 (Md. 1968) Drummond v. White Oak Fuel Company, 140 S.E. 57 (W.Va. 1927) Slide12:  Virginia? Not clear, but probably the American Rule Costello v. Frederick County Sanitation Authority, 49 Va. Cir. 41, WL 231720 (1999) Andrews v. Board of Supervisors of New Kent County, No. CH93-77, Circuit Court for the County of New Kent (August 31, 1994) Slide13:  Water Permitting Statutes “Regulated Riparian” The recent trend is for state legislatures to modify common law rules 35 states have some type of statutory permitting scheme Many are limited geographically Many have numerous exceptions – agriculture, minimum pumping levels, etc. Many include “grandfather” provisions Slide14:  Maryland State Permitting System Maryland Code, Environment, § § 5-501, et seq Requires permit to appropriate surface or groundwater Exemptions for domestic purposes other than heating and cooling; and agricultural purposes if generally less than 10,000 gallons/day Agricultural uses prior to July 1, 1988 are grandfathered Priority in emergencies: domestic and municipal uses for sanitation, drinking water and public health and safety agricultural uses all other uses Slide15:  Virginia State Permitting System Virginia Code § § 62.1-242, et seq (Surface Water Management Act) Virginia Code § § 62.1-254, et seq (Groundwater Management Act) State may designate management areas Permit required within management areas if withdrawals of greater than 300,000/month Two groundwater management areas (Eastern Shore and eastern Virginia) No surface water management areas Water supply planning regulations Slide16:  Water Permitting Statutes – How Far is Too Far? Permitting systems and other statutes may modify common law, but only to an extent; if they go to far, the water rights owner must be compensated How far is too far? Established water rights are clearly protected, beyond this??? Slide17:  Who Owns the Water? Public Trust Doctrine The public holds certain natural resources in trust for the people (beaches, navigable waterways) Several states have statutes declaring public “ownership” over all water resources Ignores private water rights and seems to conflate the notion of public trust beyond its true meaning Slide18:  Public Trust and Property Rights Private property rights established prior to the statutory pronouncements must be preserved to avoid a “takings” claim Applying to public trust doctrine to riparian and/or groundwater rights would almost undoubtedly result in a plethora of successful takings claims. Hawaii is the only state to apply the public trust doctrine to groundwater (questionable) Compensation is due even if the Governor or President acts in a drought emergency “Private rights, under such extreme and imperious circumstance, must give way for the time to the public good, but the government must make full restitution for the sacrifice.” United States v. Russell (United States Supreme Court, 1871) Slide19:  “Waters of the State” Other states seem to confuse the meaning of “waters of the state” This term comes from “waters of the United States” in the Clean Water Act “waters of the United States” delineate waters (including some wetlands) that the federal government has the authority to regulate – the federal government does NOT own these waters! States have adopted versions of the Clean Water Act reflecting broader state authority State governments do NOT own the water!!! Slide20:  Conclusions Water permitting statutes may modify common law water rights, but cannot go “too far” Many states now wish to assert “ownership” of the water, but will have to pay compensation if they do so Water rights are a PRIVATE RIGHT – the right to use the water Government regulate the use of water, but they do NOT own it.

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