Anaya Nolan
Water law in the United States refers to the laws regulating water as a resource. Water law in the US has a long and complex history, with a variety of laws and doctrines governing water use and protection. One of the first water laws in the US was the Federal Water Pollution Control Act of 1948, which was the first major law to address water pollution. This law established a basic structure for regulating pollutant discharges into US waters and gave the Environmental Protection Agency (EPA) the authority to implement pollution control programs. Over time, this law evolved into the Clean Water Act, which is now a cornerstone of US environmental regulations. In addition to federal laws, water law in the US is also governed by state laws and case law, with each state exhibiting variations in its approach to water regulation.
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What You'll Learn
The Federal Water Pollution Control Act of 1948
The Act declared pollution of interstate waters a public nuisance and subject to abatement. However, this only applied when water pollution endangered "the health or welfare of persons in a State other than that in which the discharge originates." The Surgeon General of the United States was authorised to take action, but only after a lengthy process and with the permission of the state where the pollution originated. This gave states the power to override federal action, and in the following twenty years, no enforcement actions were filed under the Act.
The Act also restricted the role of the federal government, giving individual states most of the responsibility for addressing water pollution and encouraging interstate agreements. It authorised the Federal Works Administrator to assist states, municipalities, and interstate agencies in constructing treatment plants to prevent the discharge of inadequately treated sewage and other wastes into interstate waters.
While the Federal Water Pollution Control Act of 1948 was a significant step forward in recognising the need to address water pollution, it was not well-designed and had limited impact. It did not generally prohibit pollution and provided a cumbersome enforcement mechanism. Amendments were made in 1972 to strengthen the legislation and provide better protection for the nation's waters, leading to the creation of the Clean Water Act.
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Riparian water rights
Under the riparian principle, all landowners whose properties adjoin a body of water have the right to make reasonable use of it as it flows through or over their properties. This reasonable use is subject to the downstream riparian owner's "riparian right" to receive water undiminished in flow and quality. Riparian rights include access for activities like swimming, boating and fishing; the ability to wharf out to a point of navigability; the right to erect structures such as docks, piers and boat lifts; the right to use the water for domestic purposes; and the right to exclusive use if the waterbody is non-navigable.
Riparian rights are considered "part and parcel" of the land and are passed on with the title to the property. They are not lost by non-use, meaning that the owner of idle land bordering a water source retains the right to use the water whenever they deem necessary. These rights cannot be sold or transferred separately from the adjoining land and only exist in reasonable quantities associated with that land. If there is a shortage of water, allotments are typically fixed in proportion to the frontage on the water source.
In the US, the doctrine of prior appropriation, also known as "first-come, first-served", is recognised in the western arid states, while the eastern states follow riparian law. Under the prior appropriation system, the right to use water is initially allotted to those who are "first in time of use", and these rights can then be traded. Riparian law, on the other hand, treats water as a public good, similar to air, sunlight or wildlife, and it is not owned by any individual or entity but is included as part of the land.
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Prior appropriation doctrine
The prior appropriation doctrine, also known as prior appropriation water rights, is a legal concept in the American legal system that grants the right to use water from a source to the first person who claims it for "beneficial use". This can include agricultural, industrial, or household use, though ecological purposes are typically excluded. The doctrine is often summarised as "first in time, first in right".
The doctrine was first applied in California during the Gold Rush in the mid-19th century. In the case of Irwin v. Phillips in 1855, Matthew Irwin diverted a stream for his mining operation. Robert Phillips later established a mining operation downstream and attempted to divert the water back to its original streambed, but the California Supreme Court ruled in favour of Irwin. This case set a precedent for the prior appropriation doctrine, which would later be formally adopted by the Colorado territorial court in Yunker v. Nichols in 1872.
The doctrine differs from riparian water rights, which give water use rights to landowners adjacent to a body of water. In the Yunker v. Nichols case, the Colorado court ruled that a non-riparian user who had previously applied water from a stream for beneficial use had superior rights to a riparian owner who claimed the right to use the same water at a later time. This ruling was reaffirmed in the 1882 Coffin v. Left Hand Ditch Co. case, in which the Colorado court explicitly adopted the appropriation doctrine and rejected the riparian doctrine.
The prior appropriation doctrine has been adopted in several western US states, including Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wyoming. Some states, such as California, Texas, and Oregon, recognise both riparian and prior appropriation rights. The specific legal details of prior appropriation vary from state to state, and water allocation can become complex when sources cross state or international borders.
To claim prior appropriation rights, an individual must prove four sub-claims: diversion (that water was withdrawn), priority (that the claimant withdrew water before another party), intent (that the water was withdrawn by design), and beneficial use (that the water was used for a publicly acceptable end). These rights are not a full ownership claim and can be revoked if the water is not used for an extended period. Water allocation under the prior appropriation doctrine is based on scarcity and the productivity of its use, with senior appropriators (those with the earliest appropriation dates) having priority during water shortages.
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Water rights of Native Americans
The water rights of Native Americans have been a contentious issue in the United States, with a history of injustices and ongoing legal battles. The first water law mentioned in the previous response, the Federal Water Pollution Control Act of 1948, did not specifically address the water rights of Native Americans. However, in the context of Native American water rights, it is important to note that:
The Winters Doctrine
The law governing tribal water rights was first established in Winters v. United States (1908). This case arose from a dispute in Montana, where non-Indians upstream from the Fort Belknap Indian Reservation built structures that interrupted the flow of the Milk River to the reservation, depriving the Native Americans living there of water. The case made its way to the US Supreme Court, which confirmed that water is implicitly included with reservation land. The Winters case set a precedent for how water is allocated to tribes, with the date a reservation was established serving as the priority date under the prior appropriation system.
The Clean Water Act
While not specifically addressing Native American water rights, the Clean Water Act of 1972 established a framework for regulating pollutant discharges into US waters and gave the EPA authority to implement pollution control programs. This act also made it unlawful for any person to discharge pollutants into navigable waters without a permit.
The Prior Appropriation Doctrine
In the American legal system, the prior appropriation doctrine governs water rights in the Western states. It grants water rights to the first user of a water source for "beneficial use" (agricultural, industrial, or household). Subsequent users can also use the water as long as they do not infringe on the rights of prior users. This doctrine has been applied in various states, including California during the Gold Rush and Colorado in the Yunker v. Nichols case in 1872.
Current Status of Native American Water Rights
Despite these legal precedents, Native American water rights remain unresolved in many cases. The Colorado River Compact of 1922, which includes a single sentence addressing Native Americans, does not provide clear protections for tribal water rights. The Upper Colorado River Basin Compact further complicates the issue by declaring that tribal water rights count against the state in which the reservation is located.
As of 2024, only five tribes have quantified water rights, and 14 others have undergone settlements to have their water rights quantified. The federal government has been criticized for its lack of diligence in addressing these issues. The latest Supreme Court case, Arizona v. Navajo Nation, addressed the scope and meaning of the water rights that tribes reserved when securing their reservations. The Court declined to hold that the government had an obligation to secure water for the Navajo Nation, despite the serious water needs of the community.
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Water law in California
Water is essential for life, and in California, managing water rights is a complex and important task, especially during droughts. Water rights in California are the legal permissions to use water from a source, such as a river, stream, or groundwater. While all water in the state belongs to the people of California, individuals and organizations can acquire the right to use it.
In California, water rights law is administered by the State Water Resources Control Board (SWRCB). The SWRCB plays a vital role in California's water management, ensuring that water use is efficient and beneficial. Beneficial use, a key term in water law, means using water in a way that benefits society, such as for drinking, farming, or generating power. Beneficial uses include irrigation, recreation, hydroelectric power, residential and industrial needs, and the protection of fish and wildlife.
California recognizes two categories of appropriative rights: pre-1914 and post-1914. Pre-1914 appropriative rights were established before the Water Commission Act of 1913 and are therefore not subject to the jurisdiction of the SWRCB. The priority date of a water right, which is the date when the right was established, determines its seniority. This is important during times of scarcity when junior rights holders must yield to those with senior rights.
Groundwater rights differ from surface water rights. In most areas of California, overlying landowners can extract percolating groundwater without SWRCB approval. However, groundwater use in some basins is regulated by court decrees. Additionally, state law requires that groundwater basins be managed sustainably by locally created groundwater sustainability agencies.
The Federal Water Pollution Control Act of 1948 was the first major U.S. law to address water pollution. Growing public awareness and concern for controlling water pollution led to sweeping amendments in 1972. As amended in 1972, the law became commonly known as the Clean Water Act (CWA).
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Frequently asked questions
The first water law in the United States was the Federal Water Pollution Control Act of 1948, which later became the Clean Water Act (CWA) in 1972. The CWA established the basic structure for regulating pollutant discharges into the waters of the United States and gave the Environmental Protection Agency (EPA) the authority to implement pollution control programs.
The first water law regarding water rights in the United States is the prior appropriation doctrine, also known as "first in time, first in right." This doctrine originated in Gold-Rush-era California and was later adopted by other Western states, with variations in each state. It gives water rights to whoever first puts water to "beneficial use," which can include agricultural, industrial, or household use.
The key principles of the prior appropriation doctrine are that the first person to take a quantity of water from a water source for beneficial use has the right to continue to use that quantity of water for that purpose. Subsequent users can use the remaining water as long as they do not infringe on the rights of previous users. Water rights can be traded on the open market, and government agencies typically oversee allocations for water sources with many users.
