Water laws vary from state to state

Common law - legal precepts based on precedent by legal decisions

Legislative law

1. Statutory law - laws regulating water created by legislatures and signed by the president or by governors
2. Administrative law - laws written by the administrative agency at the request of the legislators

Historically, most water law has been concerned with water quantity and has

been common law

Water quality laws are relatively recent in the U.S. and have generally been legislative.

Water right - The legal right to use water in a manner dictated by state law.

- Not a legal title to the water

Riparian doctrine - the riparian landowner (owner next to the surface water) has

first right to reasonably use the water.

	Reasonable is dependent on water use by all users
	Water law existing in most of eastern U.S.

Prior-appropriation doctrine - first claim to the water right is the first to divert water

	first in line, first in time
	Water law existing in 17 western states
	Successive owners use water after primary use if fulfilled
	During droughts, some junior users may receive no water In-stream flow rights have been created in some states to leave some water in place for riparian habitat.

"The legal authority to use within the stream channel a flow of water sufficient for

the purpose of preserving values and uses such as wildlife, fish, recreation,

and aesthetics."

Native American water rights are senior to most other water

rights in most basins, but not all have been utilized

 

Federal government appropriates water rights for rivers that cross states. The

Bureau of Reclamation is one federal agency that supplies water.

Central Arizona Project - canal from Colorado River to Phoenix

and Tucson.

 

Ground-water law varies from state to state.

English rule - right of absolute ownership of water under a property holder's land.

Owner can pump unlimited water at an unlimited rate, even if

adjoining owners are impacted.

Originated in England in 1843, in U.S. in 1861 in Ohio

 

The court noted in their decision "Because the existence, origin,

movement, are so secret, occult and concealed, an attempt to administer

any set of legal rules in respect to them would be therefore, practically

impossible."

 

Was finally overturned in Ohio in 1984 in the case Cline vs.

American Aggregates. The judge recognized that scientists could determine

that ground-water flow was not secret and that impacts on neighboring users

could be distinguished.

 

American rule - landowner has a right to use only a reasonable amount of

ground water, recognizing the rights of adjacent owners.

In some western states, surface water and ground water are governed by separate

laws, although surface-water and ground-water flow are intertwined.

Some states now regulate water use to prevent severe declines in ground-water

levels. Arizona has created Aquifer Management Areas in some ground-water

basins with severe impact of ground-water withdrawals.

	First major national environmental policy document.
	Requires environmental-impact states for major federal projects
	Led to formation of the Environmental Protection Agency (EPA)

Goal is to "restore and maintain the chemical, physical and biological integrity

of the nation's water," and to make the water of the U.S. "fishable and swimmable."'

	Sets water quality standards
	Established minimum national effluent standards
	Requires pollution discharge permits
	Provides funding for public sewage-treatment plants

Has resulted in the improvement of many surface waters

Required EPA to set standards for safe drinking water

- Maximum contaminant levels and goals

Protection for "sole source" aquifers (only water supply for public)

Protect ground-water from contamination resulting from waste injection

1985 Amendments created Wellhead Protection Program

Authorized EPA to regulate all aspects of waste management, including

its generation, storage, transportation, treatment, and disposal.

"Cradle to grave" coverage for waste.

Includes solid and liquid hazardous wastes and sludge

Subtitle C regulates hazardous waste

Subtitle D regulates solid (nonhazardous) wastes

Subtitle I regulates underground storage tanks

Excludes hazardous wastes generated prior to 1976

Mandates a permit-and-manifest system for all generators, transporters,

and treatment, storage and disposal facility owners/operators.

Requires new hazardous land disposal facilities to have a ground-water

monitoring system.

Hazardous waste landfills and lagoons are required to monitor leachate

and to have appropriately engineered liners

Commonly known as Superfund

Primary goal is to clean up hazardous waste sites that were in existence

prior to RCRA.

Contains a provision for emergency response to hazardous materials spills

and cleanup.

Includes a provision known as "joint and several liability" which permits

the EPA to recover full cost of cleanup from any or all parties responsible

for the waste.

Required EPA to create a list of sites needing remediation, the National Priorities

List of NPL

SARA placed emphasis on remediation technologies that reduce the

volume, toxicity, and mobility of hazardous substance.

Also, clarified the strict liability provision to mean that a person could

still be liable even though that person was not responsible for the problem.

Also, the current owner can be liable for cleanup although the previous

owner was responsible for the contamination.

Established a provision making the liability retroactive. Meaning the past owner

may be charge with the current liability even if the they had complied with all existing

regulations at the time of ownership.

Has made environmental site assessments an integral part of any real estate transaction!

Designed to protect the public from mining activity

Regulates the storage and disposal of mill tailings at both active and inactive

uranium mill operations.

See Tuba City case study.

Requires that mill tailings be stabilized, controlled, and disposed in environmentally

safe manner.