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Keywords:

  • adaptive management;
  • dominant estate;
  • water reallocation

Abstract:

  1. Top of page
  2. Abstract:
  3. Dominant Mineral Estates, Surface Estates, and Water Rights
  4. Private Water Rights and Dominant or Subservient Estates
  5. The Nature of a Dominant Water Estate
  6. Rules for the System
  7. Constitutionality
  8. Concluding Thoughts
  9. Author Bio and Contact Information
  10. References

Different parts of the hydrologic cycle have been separated into different property rights regimes. With different property rules applying to the same water in different parts of the hydrologic cycle, management within a reallocation context can be confusing. If the water estate is made dominant and public, then the other property rules would be subservient to it. This does not mean private rights are precluded. They can be represented by a marketable permit. The dominant estate would allow for market and legislative reallocation. Management goals would be achieved through an adaptive management process.

The hydrologic cycle is an accepted concept that describes the mobility of water in its natural state. Evaporation, precipitation, infiltration, surface runoff and other elements are all part of the cycle. Water management goals recognize the hydrologic cycle by using terms such as “holistic” or “integrated” management meaning that the different parts of the cycle should somehow be managed together. Unfortunately, integrated or holistic management is seldom the case and is really not possible under the current property rights structure that controls water rights in the United States. Integrated management is made more difficult because the hydrologic cycle distributes water according to “its” rules and not human needs. Regional shortages are resolved by structural or physical means that interfere with the hydrologic cycle and re-distribute water. Today, new structural or physical solutions to increase regional water supplies are either expensive or the water is unavailable. That means regional water shortages will increasingly be resolved by water reallocation. However, market reallocation is based on property rules that ignore the reality of the hydrologic cycle. Legislative reallocation, an alternative to markets, often arbitrarily ignores both the hydrologic cycle and the expectations of those who have water rights. If rationality is to be brought into the reallocation process, the entire hydrologic cycle must be included within a system of property rights that recognizes the mobile nature of water.

Perhaps the solution is to make the water estate “dominant.” A dominant water estate by its very nature would require all water in the hydrologic cycle to be included in a unified property rights system. This change in rules would be especially relevant in arid areas where “values inhere in the water not the land; the land without the water is without value” (Powell 1890). But in spite of water's intrinsic value in arid areas, today's property rules make water subservient to land rights. Making water rights the dominant estate would facilitate water reallocation, especially within a market context. This paper reviews the history of dominant and subservient estates in land and, with regard to water, describes what the dominant water “estate” would be like, looks at the rules (including market rules) that would be required for the system, and briefly addresses constitutional concerns in implementing a change. Political feasibility is not addressed in specific terms. That being said, in a time of crisis, solutions generally come from the ideas lying on the table. The dominant water estate is an idea that should be on the table whether it can readily be implemented or not.

Dominant Mineral Estates, Surface Estates, and Water Rights

  1. Top of page
  2. Abstract:
  3. Dominant Mineral Estates, Surface Estates, and Water Rights
  4. Private Water Rights and Dominant or Subservient Estates
  5. The Nature of a Dominant Water Estate
  6. Rules for the System
  7. Constitutionality
  8. Concluding Thoughts
  9. Author Bio and Contact Information
  10. References

Traditional common law property rights recognize that land ownership can be divided between a surface estate and a mineral estate. For example, I can own oil or gas rights without owning the land's surface. Someone else may own the rights to coal on the same land. When the mineral estate is dominant, as it is under U.S. common law, the owner of the mineral estate has a right to develop the minerals including a right to make use of the land surface (Lacy 1976). The surface owner has an estate subservient to the mineral owner's rights. Use of the surface by the dominant mineral estate owner includes the right to disturb it, and historically, complete destruction of the land's surface was sometimes an accepted practice (Ferguson 1974). Many inequitable situations resulted so that the common law doctrine has been modified statutorily in many states (Welborn 1994). Another aspect of dominant mineral estates is that surface owners have no right to utilize or harm this separate mineral estate. The rationale for making the mineral estate dominant is based on the idea that the mineral estate would have no value without the right to develop the minerals (Ferguson 1974). Why would anyone purchase the mineral estate or retain it in a property transaction if they did not intend to develop it? In summary, a dominant estate if severed from surface property rights, allows the dominant right to be developed even if the surface estate is impacted, and prevents the subservient estate from harming the dominant estate.

Water rights can also coexist with land rights, but the dominant or subservient roles of land and water are more mixed. Land rights become dominant when land uses are allowed to disrupt the hydrologic cycle at will. In varying degrees this is the prevailing policy paradigm. In a few instances water uses are “preferred” over land uses making them “dominant” to an extent. These preferences generally protect a substantial public interest and limit disruption of the hydrologic cycle for policy reasons. This is not to imply that interference with the hydrologic cycle can never occur. It means that interference is only allowed when it conforms to this public interest. These two elements, “public interest” and the integrity of the hydrologic cycle, are the keys to understanding the dominant water estate.

Navigation is a good example of a public interest use of water. From ancient times to the present navigation has had a “preference” over other economic uses of water and sometimes uses of adjacent land. In Roman times the public's right of navigation extended to adjacent private shores where unloading cargo was a public right associated with the right of navigation (MacGrady 1975). England's Magna Carta prohibits the construction of fishing weirs that block navigation (Getzler 2004). The public right of navigation allows the public to use the water body and prohibits activities that interfere with navigation. This use right can include recreational fishing. In the U.S. the “Federal navigation servitude” prevents adjacent landowners from filling the bed, dredging, or erecting barriers to navigation without a permit. The Federal government can modify the bed or banks of streams or lakes covered by the servitude without compensation including the destruction of improvements made by the adjacent owner (Rasband 1998). This makes the Federal navigation servitude dominant over conflicting uses (U.S. v. Twin City Power Co. 1956). Waters included in the navigation servitude are narrowly defined and generally do not extend to waters used only for recreation purposes.

States also create preferences in water uses beyond the Federal navigation servitude. These state-granted rights may infringe on traditional land rights. For example, many states allow public passage for recreation on streams and lakes where the bed and banks are private property (Leighty 1971). Touching of the bed and banks may not be considered a trespass, and in Montana camping may be allowed if necessary (Galt v. State Department of Fish, Wildlife and Parks 1987). In another example, many western states allow private land to be condemned by water rights holders in order to build ditches and canals for irrigation. Condemnation of private land by private parties is unusual unless a very strong public interest can be shown. The U.S. Supreme Court long ago recognized this right (Falbrook Irrigation District v. Bradley 1896), and it is found in some state constitutions (See e.g. Idaho Const. art 1 sec. 14). To a limited extent preferences are also found within the system of private property rights.

Private Water Rights and Dominant or Subservient Estates

  1. Top of page
  2. Abstract:
  3. Dominant Mineral Estates, Surface Estates, and Water Rights
  4. Private Water Rights and Dominant or Subservient Estates
  5. The Nature of a Dominant Water Estate
  6. Rules for the System
  7. Constitutionality
  8. Concluding Thoughts
  9. Author Bio and Contact Information
  10. References

In the West water and land are separate estates making the dominant and subservient role of each right an intrinsic part of management. In general, land rights dominate with land use choices being made without regard to the hydrologic cycle or to water rights. For example, landowners can clear-cut a forest on their land and not worry about changes in run-off. In the East the approach is different because water rights were traditionally tied to land ownership and inseparable from it. In neither the western or eastern system does the right extend to all water in the hydrologic cycle. Let us begin our discussion of private rights by looking first at the eastern states, then turning to diffused surface water, ground water and the appropriation doctrine.

During the industrial revolution riparian owners valued streams principally for their “energy” in the form of flow (Getzler 2004). Conflicts between common users were resolved by the “natural flow” doctrine which gives a preference for in-stream uses over uses on the adjacent land. The doctrine has largely been replaced by the “reasonable use” doctrine, but nominally still exists in some states. Under the “natural flow” doctrine, water is left in the stream undiminished in quality or quantity thereby protecting the integrity of the hydrologic cycle. The more prevalent reasonable use doctrine allows off-stream uses that are “reasonable” (Dellapenna 2001). The reasonable use doctrine removes the preference for in-stream uses allowing a greater amount of use on adjacent land and more disruption of the hydrologic cycle.

Additionally, under either riparian doctrine only part of the hydrologic cycle is included. Riparian rights exist only in waters in a watercourse or lake and do not extend to diffused surface water, soil moisture, atmospheric moisture, or ground water (except ground water in an underground stream). Surface run-off (diffused surface water) is subject to a “rule of capture” when the water is to be consumed, but disputes are rare. A rule of capture makes land rights dominant because landowners can take this water and alter flow within the hydrologic cycle. Dealing with excess diffused surface water is a greater problem.

Drainage disputes, where excess water is removed from land, are controlled by three other property rights doctrines associated with land ownership (Dellapenna 2008). The first, the “common enemy rule,” allows landowners to interfere with the hydrologic cycle in order to prevent surface run-off from flowing onto their land. This was considered an absolute right of the property owner making the land right dominant. This rule was a boon to land developers who could change the surface configuration of their land surface with impunity. Harsh results eventually led to exceptions being made and a slow transition to property rules based on reasonable use. The second doctrine is the “natural servitude rule.” Under this rule landowners must maintain the natural drainage across their land thereby upholding the integrity of the hydrologic cycle. The land right is subservient to the natural flow of water within the hydrologic cycle. The servitude is enforced by landowners who would have received the surface runoff if modifications had not been made. This rule impedes investments in land, and exceptions to it developed in time including a reasonable use exception. The third doctrine is the “reasonable use rule.” This rule allows landowners to modify the surface of their land and interfere with the hydrologic cycle as long as neighbors are not unreasonably injured. Today this approach is the emerging norm, and it attempts to balance land rights with natural water movement.

Ground water has different property rules (Matthews 2005). Ground water is water in an aquifer and does not refer to soil moisture or other water that has not reached the saturated zone. Water between the land surface and the water table is considered a land right with the water being the property of the landowner. Four basic doctrines exist for controlling rights to ground water.

Three of these doctrines are directly attached to land ownership. The fourth, based on the appropriation doctrine, separates land and water rights. Under the almost completely abandoned “absolute ownership” doctrine, landowners can pump any ground water under their land in spite of the harm done to neighboring landowners who share the aquifer. If you pump it, you can use it for whatever purpose you chose. Adjacent landowners have no say in how the water is used. Texas is usually given as the example for this doctrine (Lusk 1998). The “correlative rights” doctrine is also attached to land ownership. Landowners over an aquifer have a right to use the water but must proportionately share it based on the number of acres they own over the aquifer. California is usually used as the example for this doctrine (Katz v. Walkinshaw 1903). In the eastern states the “reasonable use” doctrine allows landowners overlying an aquifer to use ground water as long as the use is reasonable. In all three doctrines, water use is made subservient to the needs of the landowner. In western states, where the appropriation doctrine controls, the basis of the right is different as discussed below.

In the West water starts out as a public right. However, these public rights are allowed to be converted to private rights through a permit system. This system of private rights requires water to be diverted from a stream, intentionally disrupting the hydrologic cycle. The right is attached to a place of use, but land ownership is not required. For example, an individual can establish a water right for permitted uses on Federal land. If the water right is on private land, the right is considered “appurtenant” to the land and goes with it when the land is sold or ownership changed, unless the right is specifically excluded from the transaction. In general only water that is in a watercourse, lake, or aquifer is subject to the appropriation doctrine but some states include additional waters (Beck 2008). Diffused surface waters are subject to capture by the surface owner. Soil moisture is generally not included in state regulatory schemes and by default is “used” exclusively by the land owner. This is the same result as in riparian states. Also the hydrologic connection between ground and surface water is not clearly recognized by all western states creating two distinct systems of property rights.

As can be seen from this discussion, neither the riparian or appropriative rights doctrines create rights in the entire hydrologic cycle. Owners of the surface or mineral estates frequently use their property in ways that interfere with the hydrologic cycle and indirectly impact the water rights of others. These indirect impacts can occur without obtaining a water right. The impacts on water are generally ignored because the water right is, in effect, a subservient estate. Typical impacts on the hydrologic cycle result from the following examples: 1. capturing surface run-off before it reaches a watercourse, 2. changing the land's gradient to increase infiltration and thereby decrease run-off, and 3. changing land cover in ways that increase (or decrease) evapotranspiration and thereby decrease (or increase) run-off or infiltration.

Surface and mineral rights are generally dominant over water rights today. Although the natural flow doctrine for riparian rights and the natural servitude rule for diffused surface waters historically protected the integrity of the hydrologic cycle, these doctrines did not create a property right in water. Instead adjacent landowners sued their neighbors if their land rights were harmed. Only the Federal navigation servitude creates a true dominant right with the right being held by the public. The dominant estate envisioned in this article would be similar to this Federal right. The next section describes the nature of the dominant estate and the impacts it would have on land and water use.

The Nature of a Dominant Water Estate

  1. Top of page
  2. Abstract:
  3. Dominant Mineral Estates, Surface Estates, and Water Rights
  4. Private Water Rights and Dominant or Subservient Estates
  5. The Nature of a Dominant Water Estate
  6. Rules for the System
  7. Constitutionality
  8. Concluding Thoughts
  9. Author Bio and Contact Information
  10. References

The dominant water estate makes most sense in arid parts of the world like the western U. S., Australia, and elsewhere. As Powell (1890) said, water is the valuable property right and not necessarily land. The remainder of this paper devotes itself to a discussion of how the dominant water estate could be incorporated into the western appropriation doctrine. The two major aspects of the dominant estate must first be described.

The first aspect of the right is based on the difficulties inherent in assigning property rights to a mobile resource. Private property rights are generally thought to be “exclusive” rights. How can this happen with water constantly being “recycled”? Water is inherently “shared” not “exclusive.” The same molecule may be used successively by many users. Therefore, water has both public and shared aspects. This public aspect is the first element of the dominant right that must be recognized and in fact has been. The public nature of western water was recognized early and incorporated in western state's constitutions. In the West, water is generally considered to be the property of the state (See e.g., Mont. Const. Art. 9 sec. 3(3)) or the people of the state (Colo. Const. Art. XVI sec. 5).

The early designers of the appropriation doctrine also realized that in order to obtain “value” from water it had to be diverted from a stream and put to a beneficial use. For them a beneficial use was irrigation, mining, industry, domestic supply, and other consumptive uses. This required a system of private rights for these public waters in order to facilitate development. For most of its history the appropriation doctrine ignored the public aspect of water and allowed private uses to dominate. Permits for private rights and transfers of those rights were not allowed unless they were in the “public” interest, but the public interest was seldom defined. Generally, any economic use was acceptable. In-stream uses for fish habitat, aesthetics, or recreation were precluded because a diversion from the stream was required. However, these private rights to use water are still subject to the public interest rights established in state constitutions.

Today, the public aspect of water is gaining strength, and in-stream uses are common in many states (Boyd 2003, Mulvaney 2009). Beneficial use is being defined statutorily (Colo. Rev. Stat. sec. 37-92-103(4)) or judicially (In re Water Right Claim No, 127-2, 1994) to include recreation and environmental uses. The public (state) can in many places appropriate water for in-stream purposes. Public interest reviews before reallocation or permit issuance now include a broader spectrum of public interests (N.D. Cent Code sec. 61-04-06). Even though this public aspect of water rights is beginning to emerge it is often given lip service only. In-stream rights may be legally possible, but they are seldom created (Benson 2006, Pilz 2006). Environmental or recreation uses may be beneficial (Mont. Code Ann. Sec. 85-2-102(2)), but they are seldom the basis for a right. It may be possible for the public (state) to appropriate water, but it seldom does so. Public interest review is often cursory giving little weight to public environmental and recreational values. In order for the water estate to become dominant, the public aspect of water rights must be strengthened. This does not mean private rights will disappear. They will, however, be subject to a dominant public interest.

The second aspect of the dominant water estate integrates the entire hydrologic cycle. Currently the appropriation doctrine assigns water rights only to part of the hydrologic cycle. However, ignoring the hydrologic cycle can have consequences. For example, small domestic wells may be exempt from the appropriation doctrine. When these wells occur in great numbers over a small area they can have a negative impact on hydrologically connected surface waters. The appropriation doctrine excludes other water as well – atmospheric water, diffused surface water, and soil moisture. Because atmospheric moisture is difficult to manage, policy makers ignore it giving the landowner on whose property it falls a right to capture it. This is appropriate in a system where land rights dominate, but rainwater harvesting can have an impact on the hydrologic cycle. Colorado is one of the states with an exception, allowing rainwater harvesting only under limited conditions. The Colorado legislature created this exception in 2009. Rainwater harvesting is only allowed for homes that have their own wells as long as the water is captured from a roof and used inside the house (Colorado Division of Water Resources 2009).

The impact of implementing the dominant water estate will require an entirely different approach to land use practices. Owners of surface and mineral estates would have no right to use or interfere with the dominant water estate unless they have a water permit. In practical effect this means that any interference with or change in the hydrologic cycle would require a permit. This includes planting crops that consume water before it reaches an aquifer or ones that consume water directly from an aquifer. This change, as will be discussed below, has constitutional implications related to taking property rights without just compensation.

Four other issues related to the structure of the rights system must also be addressed. How should the public interest be protected? How do private rights fit into this scheme and what will they look like? What is the process that will control markets for these private rights? Should exceptions be made for certain small users? A set of rules is needed to answer these questions.

Rules for the System

  1. Top of page
  2. Abstract:
  3. Dominant Mineral Estates, Surface Estates, and Water Rights
  4. Private Water Rights and Dominant or Subservient Estates
  5. The Nature of a Dominant Water Estate
  6. Rules for the System
  7. Constitutionality
  8. Concluding Thoughts
  9. Author Bio and Contact Information
  10. References

In western states, the basis of the public interest in water has already been established through state ownership claims or the public trust doctrine. The public has a substantial interest in the way water is managed. How can that substantial interest be protected, especially in light of the system of private rights that has also been established? The simple answer is to re-assert that the private uses of water are subject to a broad and dominant public interest. More complicated is defining the public interest and determining how to protect it. A policy that prohibits interference with the hydrologic cycle would protect the natural environment, but is that the only element that is part of the public interest? An analogy can be made to the way our public lands are managed.

The Federal public domain is public in a way similar to water. As the U.S. developed, many private uses were allowed on these public lands. Eventually permits were required for most of these uses. Permits were for a term of years, and were often renewable. Although many users think of these in terms of permanent “rights” they are not (Wechsler 2001). These permits are analogous to a water right permit in many ways. But, public lands have always been subject to congressional power under the constitution's property clause, and Congress has frequently exercised that power. Additionally, congressional power over Federal property is “without limitation” (U.S. v. Kleppe 1976). This means permits can be modified, environmental consequences can be examined before renewal, and use restrictions can be incorporated. The Federal approach to managing public lands has gone through many changes as societal goals and attitudes toward these lands have changed. Beginning in the 1970s, environmental assessment and planning dominated with major statutes being passed requiring agencies to manage public lands through a planning process. Today, many managers feel the existing system is too cumbersome and needs to be revised. Adaptive management principles are being recommended (Glicksman 2009, Ruhl 2005).

Planning and adaptive management can also be used to protect the public's interest in water within the context of the dominant water estate. Adaptive management allows management goals to be set and creates measurements to see if the goals are being achieved. If the goals are not achieved, modifications are made to the management strategy. Adaptive management is a process designed to achieve goals in the face of uncertainty. Scientific uncertainty over the best management approach is leading federal land managers to use this process. Similarly, scientific uncertainty exists when humans interfere with the hydrologic cycle. For example, when water is reallocated it is difficult to predict all the impacts that will occur. The public interest in water needs to be defined by a set of goals with success in achieving those goals being regularly monitored. These goals should balance the integrity of the hydrologic cycle with the consumptive uses allowed for permit holders. If goals are not achieved, the management strategy should be changed. This process will be active and on-going.

How do private rights fit into this management process? The answer is similar to the solution on Federal lands. Permits need to be renewable and to have contingencies or conditions built into them. California already has conditions in their water rights and has a strong interpretation of the public trust that gives water rights a contingent aspect (U.S. v. State Water Resource Control Bd. 1986). Permits are issued subject to this public trust (National Audubon Soc'y v. Superior Ct. 1983). The actual elements of the water permit should contain all the “use” rules currently found: point of diversion, volume, time of use, and priority date. In addition, a consumptive volume needs to be included. The consumptive volume should not be based on what a specific user consumes but should be a simple rule that is applied to a category of uses. This consumptive volume, like the other elements of the right, is modifiable within the adaptive management process.

What are the rules that will be applied to the marketing of these private permit rights? Permit holders will be allowed to sell the consumptive volume defined in their permit. Challenges to sales by third parties who claim they are impacted will not be allowed. However, sales will require an evaluation of impacts on the goals set by the adaptive management process as well as impacts on third parties. The public interest is broadly defined and protected by these goals as are the private uses allowed for each stream under the adaptive management process. The transfer approval process is meant to be short and contingent. Streams will be constantly monitored through the adaptive management process. If goals are not being met or impacts occur on other uses, modification to reallocation transactions can be made. The idea is to simplify sales of permit rights by creating simple rules that standardize rather than individualize each transaction. Contingent sales would allow the existing monitoring process to determine if harmful impacts will preclude achievement of goals.

Should exceptions be made for small users? If we define the public interest to include the entire hydrologic cycle, then we have enforcement issues for residential households and other small land holders. For example, I have a xeric front yard, but use rain barrels in my back yard that potentially interfere with the hydrologic cycle. Should I be required to get a water permit? The answer is probably not. In areas of dense population or fragmented ownership the goals set by adaptive management are best met by land use regulations rather than individual permits. For example my local government might limit the capacity of my rain barrels in order to meet goals. However, the adaptive management planning process needs to set goals for local governments and local governments need to create policies to achieve these goals. As long as these targets are met, no changes need be made in the local management strategy. If goals are not met, then management modifications need to be made to achieve the goals. This could include eliminating residential rain barrel use, promoting increased use, or any other chosen strategy that will achieve the required results.

Constitutionality

  1. Top of page
  2. Abstract:
  3. Dominant Mineral Estates, Surface Estates, and Water Rights
  4. Private Water Rights and Dominant or Subservient Estates
  5. The Nature of a Dominant Water Estate
  6. Rules for the System
  7. Constitutionality
  8. Concluding Thoughts
  9. Author Bio and Contact Information
  10. References

One question remains. Is this proposal constitutional or is it a taking of property without just compensation? I believe the dominant water estate as a public right is constitutional. I base this on three lines of reasoning:

  • 1
    State ownership of water or public trust rights,
  • 2
    The nature of water rights in comparison with land rights in regulatory takings, and
  • 3
    The conversion of riparian rights to permit rights without constitutional problems.

State ownership claims or claims of ownership in trust for its citizens provide a starting point for discussion. Most western states retain some kind of interest in “public” water even when they issue a private permit to use it. This interest allows them to establish water rights that are contingent. Water must be used beneficially and non-wastefully or there is no right. The use of water can also be regulated to protect the public trust/interest. Regulations can define beneficial use and waste in order to achieve goals set by a planning process. Other police power regulations can also affect the way water is used. This continuing state interest is also seen in court cases interpreting the public interest when there is a perfected state water right. The best example is Mono Lake (National Audubon Soc'y v. Superior Ct. 1983). In this case the City of Los Angeles had valid water rights that were modified to protect public trust interests to use water in place. In California private parties cannot obtain a water right that will harm the public trust interest. California also conditions water rights to protect fisheries (U. S. v. State Water Resource Control Bd. 1986).

This brings us to the issue of regulatory takings where court decisions are mixed in trying to separate unconstitutional taking from legitimate regulations. Conflicts between endangered species and water rights have generated considerable discussion. The arguments on both sides of this issue are too lengthy to summarize here, but some good sources are Benson (1997), Gray (2002), and Zellmer and Harder (2008). One way to approach the topic is to look at the differences between land rights and water rights. Water is not “special” in a way that makes property rights in water somehow better than property rights in land. If land can be regulated, water can be. In addition, states have a greater interest in water than they do land. They claim either an ownership or trust relationship with it. Wouldn't that in itself give states a right to regulate as the Federal government does with Federal land? If a transfer is proposed, states are required to evaluate if the transfer is in the public interest. If not the transfer is disapproved. Doesn't this show the public's continuing interest in water? No such approval is required when private land is transferred. Water rights are also contingent and subject to loss under many circumstances (wasteful use, forfeiture for non-use, and etc. as discussed above). Land rights are not subject to these same threats to an owner's security of title.

The third line of reasoning comes from the extinguishment of riparian water rights. Riparian rights are considered a property right like appropriation doctrine rights. Arguably these rights are “better” private rights because there is no continuing state interest in them. Yet they have been extinguished and replaced in most western states and many places in the East. California, Nebraska, and Oklahoma have minor exceptions (Allison 1994). The permits being required under the doctrine of regulated riparianism changes the very nature of the private riparian right.

Implementing the dominant water estate as suggested here would face a constitutional challenge. I believe that the state's continuing interest in the way water is used and their use of the police power regulations could defeat such a challenge.

Concluding Thoughts

  1. Top of page
  2. Abstract:
  3. Dominant Mineral Estates, Surface Estates, and Water Rights
  4. Private Water Rights and Dominant or Subservient Estates
  5. The Nature of a Dominant Water Estate
  6. Rules for the System
  7. Constitutionality
  8. Concluding Thoughts
  9. Author Bio and Contact Information
  10. References

Creating a dominant estate in water is not without problems. A system of rights in the entire hydrologic cycle will inevitably interfere with traditional land uses. This is the reason the water right must be considered dominant. The dominant estate must also take into account the mobile nature of water in defining the rights. Accommodation must be made for small interferences within the hydrologic cycle to minimize management problems. Additionally, because the science needed to predict the impacts of change has a degree of uncertainty, what is needed is a system of simplified rules and flexibility. The dominant estate concept simplifies the rules especially when these rules are used to define private rights. On the other hand, flexibility is needed to achieve public interest goals and to accommodate scientific uncertainty. Flexibility is achieved by the adaptive management process. If monitoring indicates, rules can be changed to meet unmet public interest goals.

Author Bio and Contact Information

  1. Top of page
  2. Abstract:
  3. Dominant Mineral Estates, Surface Estates, and Water Rights
  4. Private Water Rights and Dominant or Subservient Estates
  5. The Nature of a Dominant Water Estate
  6. Rules for the System
  7. Constitutionality
  8. Concluding Thoughts
  9. Author Bio and Contact Information
  10. References

Olen Paul Matthews is a Professor of Geography at the University of New Mexico. He has a degree in law and has spent many years writing and thinking about water policy. Although much of this thought has been directed toward transboundary water issues, in recent years he has been puzzling over water rights and water reallocation. He expects to remain puzzled by the complexities of water transfers. He wishes the process could be simplified with property rules that make sense, but believes that politics have a solid chance of prevailing over good sense. He can be contacted at: Department of Geography, MSC01 1110, 1 University of New Mexico, Albuquerque, NM, 87131 or opmatt@unm.edu.

References

  1. Top of page
  2. Abstract:
  3. Dominant Mineral Estates, Surface Estates, and Water Rights
  4. Private Water Rights and Dominant or Subservient Estates
  5. The Nature of a Dominant Water Estate
  6. Rules for the System
  7. Constitutionality
  8. Concluding Thoughts
  9. Author Bio and Contact Information
  10. References
  • Allison, G. D. 1994. Franco-American Charolaise: The Never Ending Story. Tulsa Law Journal 30: 159.
  • Beck, R. E. 2008. Waters Included Within the System. Section 11-06 in Water and Water Rights, Robert E.Beck (ed.): Matthew Bender, Newark , 7 Volumes.
  • Benson, R. D. 2006. ‘Adequate progress’ or rivers left behind? Development in Colorado and Wyoming instream flow laws since 2000. Environmental Law 36: 12831310.
  • Benson, R. D. 1997. Whose water is it? Private rights and public authority over reclamation project water. Virginia Environmental Law Journal 16: 363427.
  • Boyd, J. A. 2003. Student writing: Hip deep: A survey of state instream flow law from the Rocky Mountains to the Pacific Ocean, Natural Resources Journal 43: 11511216.
  • Colo. Const. art. XVI sec. 5.
  • Colorado Division of Water Resources 2009. Available at http://water.state.co.us/. Accessed on August 31, 2009.
  • Colo. Rev. Stat. sec. 37-92-103(4).
  • Dellapenna, J. W. 2001. Right to Consume Water Under “Pure' Riparian Rights. Chapter 7 in Water and Water Rights, Robert E.Beck (ed.): Matthew Bender, Newark , 7 Volumes.
  • Dellapenna, J. W. 2008. Diffused Surface Waters. Section 10.03 in Water and Water Rights, Robert E.Beck (ed.): Matthew Bender, Newark , 7 Volumes.
  • Falbrook Irrigation District v. Bradley. 164 U.S. 112 (1896).
  • Ferguson, Jr., F. E. 1974. Severed surface and mineral estates - Right to use damage or destroy the surface to recover minerals. Rocky Mountain Mineral Law Institute 19: 41135.
  • Galt v. State Department of Fish, Wildlife and Parks. 731 P.2d 912 (1987).
  • Getzler, J. 2004. A History of Water Rights at Common Law. Oxford : Oxford Univ. Press.
  • Glicksman, R. L. 2009. Ecosystem resilience to disruptions linked to global climate change: An adaptive approach to Federal land management. Nebraska Law Review 87: 833892.
  • Gray, B. E. 2002. The Property right in water. Hastings West-Northwest Journal of Environmental Law & Policy 9: 128.
  • Idaho Const. art. 1 sec. 14.
  • In re Water Right Claim No. 127-2. 524 S.W. 2d 855 (S. D. 1994).
  • Katz v. Walkinshaw. 141 Cal. 116 (1903).
  • Lacy, J. C. 1976. Conflicting surface interests: Shotgun siplomacy revisited. Rocky Mountain Mineral Law Institute 22: 331332.
  • Leighty, L. L. 1971. Public rights in navigable state waters—Some statutory approaches. Land and Water Law Rev. 5: 459490.
  • Lusk, S. and E. Hayes 1998. Texas groundwater: Reconciling the rule of capture with environmental and community demands. St. Mary's L. J. 30; 305365.
  • MacGrady, G. 1975. The Navigable concept in the civil and common law: Historic development, current importance, and some doctrines that don't hold water. Florida State University Law Review 3: 513615.
  • Matthews, O. P. 2005. Groundwater rights, spatial variation, and transboundary conflicts. Ground Water 43: 691699.
  • Mont. Code Ann. sec. 85-2-102(2).
  • Mont. Const. art. 9 sec. 3(3).
  • Mulvaney, T. M. 2009. Instream flows and the public trust, Tulane Environmental Law Journal 22: 315377.
  • National Audubon Soc'y v. Superior Ct. 33 Cal. 3d 19, cert.denied 464 U.S. 977 (1983).
  • Pilz, R. D. 2006. Comment: At the confluence: Oregon's instream water rights law in theory and practice. Environmental Law 36: 13831420.
  • Powell, J. W. 1890. Report on the Arid Regions of the United States. Government Printing Office: Washington DC .
  • Rasband, J. R. 1998. Equitable compensation for public trust taking. University of Colorado Law Review 69: 331405.
  • Ruhl, J. B. 2005. Regulation by adaptive management- Is it possible? Minnesota Journal of Law Science & Technology 7: 2157.
  • U.S. v. Kleppe. 426 U.S. 529 (1976).
  • U.S. v. State Water Resource Control Bd. 227 California Reporter 161 (1986).
  • U.S. v. Twin City Power Co. 350 U.S. 222 (1956).
  • Wechsler, J. J. 2001. Note: This land is our land: Ranchers seek private rights in the public rangelands. Journal of Land Resources & Environmental Law 21: 461487.
  • Welborn, J. F. 1994. New rights of surface owners: Changes in the dominant/servient relationship between mineral and surface estates. Rocky Mountain Mineral Law Institute 40: 22.0122.40.
  • Zellmer, S. B. and J. Harder. 2008. Unbundling property in water. Alabama Law Review 59: 679745.