Water Law 101: Part 1, the Basics
This the first in a six-part series of articles covering basic water law in the United States, predominately in the western part of the country, and how it affects this finite resource.
Water law has a long history. It can be traced back to Roman times and also has roots in English common law. Across the United States, it varies from state to state, and from East to West.
When conflicts arise, the courts usually determine the outcome, unless there are state or federal laws or previous case studies to resolve the issue. Exceptions to the law can arise from differences in each state’s water laws.
Most of the information for this series comes from Water Law, a class taught at the University of Nebraska-Lincoln by Professor David Aiken. Water law is full to the brim of terminology and definitions — but they all intertwine with each other to make up water law as we know it today.
What is Water?
Water can be defined as the liquid that descends from the clouds as rain or other precipitation. It forms streams, lakes, seas and is a major constituent of all living matter. Water is measured in various ways, including gallons per minute (gpm), and cubic feet per second (cfs, or second feet, which is approximately 449 gallons water per minute). Water is also measured as acre-feet, the volume required to cover one acre one foot deep, or approximately 325,829 gallons.
Another measure of water is consumptive use, a use that renders it no longer available because it has been evaporated, transpired by plants, incorporated into products or crops, consumed by people or livestock, or otherwise removed from water supplies. Related to consumptive use is return flow, the part of a diverted flow that is not consumptively used and returns to its original source or another body of water.
Two Sources of Water — Surface and Ground Water
Surface water can be an open body of water such as stream, lake or reservoir. Surface water in Nebraska is managed by the Nebraska Department of Natural Resources (NDNR), with an exception. NDNR grants and manages surface-water rights, EXCEPT those managed by the U.S. Bureau of Reclamation on Bureau projects.
Groundwater is water that flows or seeps downward and saturates soil or rock, supplying springs and wells. The upper limit of the saturated zone is called the water table. Nebraska’s 23 natural resources districts (NRDs) manage groundwater and may limit the amount of water that can be pumped.
Two Basic Doctrines That Determine Water Rights or Use
Riparian Doctrine is the system for allocating water used in England and the eastern United States, in which owners of lands along the banks of a stream or water body have the right to reasonable use of the waters and a correlative right protecting against unreasonable use by others that diminishes the quantity or quality of water.
Riparian rights are lost by severance. If land is part of a larger tract bordering a stream but a part not bordering the stream, say the back 40 acres, is sold, those 40 acres no longer are considered riparian and can never regain their legal riparian status by being reassembled into a “riparian” tract of land.
Prior Appropriation Doctrine (“first in time, first in right”) is a concept under which a right to use a quantity of water is based on the earliest priority date. This system is used in most of the western United States. Under prior-appropriation systems, priority of use refers to the date a water right is acquired, with senior rights prevailing over junior rights. All water rights are defined in relation to other users, and a water rights holder only acquires the right to use a specific quantity of water under specified conditions. Thus, when limited water is available, senior rights are satisfied first in the order of their priority date.
Priority of use is distinguished from statutory preferences (designations), which refer to statutory statements of preference among different types of beneficial use and would come into play — for example, in deciding which of two concurrent water rights should be satisfied first during a shortage of water or which of two competing applications for a water right should be granted.
Appropriative rights can be lost through nonuse; they can also be sold or transferred apart from the land.
Preferred use is a use given some sort of preference not given other uses. Preference can take many forms, depending on state law. One type of use, such as domestic use, may be preferred over others when there are competing applications to appropriate the same water. Persons having water rights for preferred use may be entitled to take water before those having rights for other uses, regardless of their relative priorities. A person needing water for a preferred use may be authorized to condemn (to buy in a forced judicial sale) water being used for non-preferred purposes.
Beneficial use, the cardinal principle of the prior appropriation doctrine, is a use of water that generally produces public benefit and promotes the peace, health, safety and welfare of the people of the state. Putting water to a beneficial use is a condition of receiving a certificated water right. The right may be lost if beneficial use is discontinued.
Most states recognize certain uses as beneficial: domestic and municipal uses, industrial uses, irrigation, mining, hydroelectric power, navigation, recreation, stock raising, public parks, wildlife and game preserves, and other uses.
These terms make up some of the basics concerning water law, but not all. This series will cover other water rights, some case studies and their affects, which will demonstrate the complexity of water rights and water law.
In my position with Nebraska Extension, I often speak about water to audiences. I always ask an audience one question: Considering economics, the environment, aesthetics, considering the short term and the long term — what is water worth?
NEXT: Other water rights.