On demand 1h 5m 42s Intermediate

Fresh Water Law in the United States

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Fresh Water Law in the United States

This course will provide an overview of fresh water law in the United States. We will cover both the law and policy aspects within water law while analyzing the balance between public rights and private rights to use water, including private ground water rights, and private water harvesting rights. While also covering water usage and its impact. Water is the heart of agriculture, commerce, transportation’s, recreation, and survival.

Transcript

- [Steve] Well, welcome to Fresh Water Law in the United States. My name is Steve Swanson and I'll be your presenter today. We're gonna be looking at some issues that have developed in the legal scene with regard to fresh water cases across the United States and the evolution of Fresh Water Law. I think we all know that Fresh Water Law is very, very important at this time not only because of some of the scarcity of water in the United States, but also recent flooding and other incidences across the United States have suggested that we're gonna be evolving in the area of water law. We're gonna see changes in the things such as the public trust doctrine, the appropriation doctrine and in some of the other doctrines we'll be talking about today. So, hopefully you'll get something out of this program. I know that I got a lot out of preparing and working to put this together. A little bit about myself. I'm a practicing attorney. I've been practicing for now, I think, it's 43 years in Wisconsin. And of course, fresh water is very, very important in our state. Recreational uses of water, hydroelectric use of water, transportation use of water, it's a very important issue in the Midwest. And I'll take a lot of that perspective, but I'll also add some of the perspective from areas beyond the State of Wisconsin, because the country has numerous different issues when it comes to fresh water. So, let's get right into it. And I also like to thank Wondi, for putting this presentation on today. It certainly is my pleasure to work with him. Well, It's been a great experience. So getting, excuse me, getting onto the area of, what's our concerns are. Give me just one second. The overview of the law in the United States. Basically you have to understand that water is at the heart of several different things. First of all, it's at the heart of agriculture. The United States is the bread basket of the world and it's not changing any time soon. As we've seen with certain developments in Europe and some of the Asian countries and in South America, our bread basket, our agricultural production has become even more important to the world. And agriculture depends on water and it depends on fresh water. We can't desalt some water. We could probably use it in California, but for the most part, we have to have fresh water available in order to grow crops. Number two, commerce. It's amazing how much traffic we move up and down the Mississippi, the Missouri, the Ohio, and several other rivers in the United States today, I was one of those people that was fortunate to grow up in a town in Wisconsin, where the Chippewa River ran through the city. And the Chippewa River in days gone by, had been the principle way of moving the logs, made the industries of our area so popular. Wisconsin at one time, was the paper making capital of the world because of all the pine forest and the logs that we could produce, the pulp that we still produce in the state. So transportation, using water to move products up and down the Mississippi or moving through some of the St. Lawrence Seaway for example, are areas that are very, very important to the economy and the lives of many Americans. Transportation. Now, we probably don't take steamboats as often as we used to up and down the rivers of the United States, we probably don't use our boats to go from point A to point B is like we used to, but it is still important. And transportation still does to a certain degree, look to water and water resources to move people from one place to another. There's several areas of the state of our area, the Midwest, and across the United States where we still have fairies that cross the water. And we use water to go from, in our case, from Michigan to Wisconsin on two locations. And there's 4 to, I suppose, 3 to 4,000 people on a day that will move back and forth between those two states across the water using a ferry system. Principal use, my hometown, recreation. I live on a lake in Central Wisconsin. Deepest lake in the state. There's boats on it every day, fishing, there's water skiing, there's wakeboarding. Recreation is an immense pastime here in the State of Wisconsin. And I will tell you that much of the law here in the state of Wisconsin is predicated on how water and recreation works. It's not just in the Midwest. If you go out to places like Colorado, even Nevada, you'll find that water and water recreation is huge. The costs of properties along a lake or along a river are immense compared to what the cost of a property sitting in a Prairie might be. So, recreation has a significant value to the American economy and to people. And fresh water is important. Clean water that can be used for recreational purposes, for safe swimming, for safe boating. those are imperative if we move forward with the economies that we all enjoy. But most importantly, I always tell people, water is survival. Just the mere fact of having water available for drinking. We need water. We need it for cooking, we need it for drinking, we need it for bathing. Water is essential. And fresh, clean, safe water, it's a basic aspect of life. So understand too, when we look at water law and what I broken this down in the materials I put together to present this program is that we look at both laws and policies because there's all kinds of federal and state policies that are not written in the statutes or the codes, but are found in policy statements by organizations. And we'll talk about those organizations. And you need to understand the difference because what's critical is laws of course have consequences in many, many cases that are legally enforceable. Policies, on the other hand are oftentimes mere suggestions, a way of doing things, a hope and desire that it'll be done in that manner. And so it's critical you look at it from that perspective. So that's what we talk about when we talk about the policies. The other area we're talking about of course, is we need to understand that quality quantities are the two factors that we're looking at when we're looking at water. We have to determine whether or not we have adequate quality of water product, we have adequate quantities of water. Those are essential as we move forward when we look at this area of water law. So when we look at management, you know, we're gonna also to look at this from the perspective, we're looking at it from two different cycles. We're looking at it from the cycle of how is water transported across the surface and then, how is water transported underground? Because management not only focuses on controlling surface waters, but it's also looking at controlling groundwater. And it controls the right to use and the duty to keep the water free from pollution. And again, that's both on the ground level. And also it's available or important when we take a look at it from the level of, not only the surface, but the aquifers that are underneath the ground. So, we're gonna look at all those things as we take a look at the overview of this area. So, what are we gonna look at? Next, we're gonna look at the whole area of basic concerns. What's out there? What do we have to be concerned about? Well, the basic concerns that we do have is balancing the public rights, the rights of the majority of the people against the private rights, so the right of the property owner. And this is extremely important. We look at states like Colorado or Nevada, but even here in our own State of Wisconsin, where farmers are doing more and more irrigation and they're pulling water resources out of the ground. And when those water resources are pulled out of the ground, what it has effect is on the aquifer and the aquifer in the community nearby may find that their Wells are going dry because we're pumping water for irrigation services in nearby fields. So, you have this public right to use water, to use lakes, to use streams, the resources that are available, and we oppose that against the private right of somebody to use their water for their agricultural purpose, for their commercial purposes, because lots and lots of businesses use tremendous amounts of water. We live in a state where the beer industry is extremely important. So, you have a lot of that industry is using an immense amount of water. We also have hydroelectric and the need to keep the water flowing at a certain velocity in order to make the hydroelectric systems work. All of that puts together this conflict between public and private users. So, we look at the relative rights of the individual water users. We get a whole different area. In other words, I own this piece of property and down the stream is my neighbors, but I need the water. So, I block off the water and I take the water from my own personal use. Now, in a state such as Wisconsin, Minnesota, Michigan, it's not really a huge problem because they're seeing this endless supply of water and nobody diverts enough water from a stream or a lake, or even an aquifer there really causes that degree of problems to other people. But yet, if you get into the Montanas, the Dakotas, the Colorados, the Kansas, you're gonna find that diverting water increase huge problems, because if you take away the source of water by having the person at the upper end of the Colorado River, for example, pulling out everything they want and they need, what's gonna be left by the time the Colorado River enters Arizona? And so, you have to look at this and you have to look at it from a perspective of a balancing act. Water quality and regulation of discharges is another huge issue. I happen to spend a great deal of time on this new issue called PFAS. And I represent communities throughout the state. And what we're looking at is our wells have become contaminated because certain industries have discharged the Forever chemical into our water system, because at their plants, they're discharging their water. And the discharged water goes into the city sanitary system. The city sanitary system goes into our aquifer eventually, because what we're doing is, we're treating the water and we're putting it out. And that chemical doesn't go away. It's not like we can filter out the solids like we normally would do in a wastewater treatment plant. We also find that a lot of companies simply dump. They say, it's water and why can't we just dump it on the ground? Why can't we take it out and spread it on the field? And the answer is because there's chemicals in it. And those chemicals are creating problems. We see that in the agricultural industry where they'll take wastewater and they'll take the wastewater from their large farming operations and they'll spread it on their fields. And they'll find out that there are chemicals in that water that came from the cattle, came from the chemistries or chemicals they used in the agricultural process. And they're contaminating the water source when it works into the ground water and into the aquifers. And that's what becomes somebody else's now, new problem. So we regulate discharges of water. And we regulate the quality of water that we have to maintain. We also regulate allocation and the allocation of rights. How much can this person get compared to that person? What purpose, you know? When there's a shortage, who gets and who doesn't? Right now, that's important in California, for example, where they're regulating the use of water. Can you use it for, you know, water in your lawns? Can you use it for drinking? Can use it for bathing? We hope that we never get to the point where we have to ration water to the point that you can only take one shower a week. But inevitably there's been countries, not the United States, but there's been other countries that have had to go on to those kind of extremes to try to preserve their clean water resources. And natural disasters can bring that about. But allocation rights are extremely important in both, the agricultural, the commercial and the individual purposes. Also land use. I mean, we look at the whole area of land use. We look at regulation through zoning, through other rules and regulations of how to use your land. Why? Because it affects the quality and quantity of the water that we have. If you take and use your land in such a way that you're spreading chemicals on it, what is that doing to your crops? Maybe that makes them grow very, very well. But what's that doing to the sub soils? What's that doing to the groundwater? It can certainly contaminate and contaminate the water flow down stream so to speak, so that, yeah, maybe in your community, because you're washing it away, you don't have a problem. But further downstream, there is a problem. It's how people treat lakes for recreational purposes. As they try to kill off a lot of the natural growth, what is the effect? Or we see up here in Wisconsin, people will fertilize their lawns along our lakes. And what is the effect of that? Well, that same fertilizer gets into the water. And when it's in the water, it encourages growth of algae and encourages growth of certain wild weeds, water type weeds that choke off the oxygen, which kill the fish and destroyed the recreational industry. And that's what we talk about, the negative effects of someone turning their lawn and something beautiful when for many, many, many years, it was just a wooded area that was a great filter and provided clean water and there were no chemicals introduced and the lake stayed clean and they stayed pristine and the fish, you know, were able to multiply. But that's coming to an end is more people with their land use is interfering with their water use, so to speak. So we look at that, excuse me. Woo. That's not what we want. You gave me two. Wow. So, I talked about this before. This is the whole balancing effect that we have to balance, you know, the whole thing between the public rights and the private rights. And that's where we are. You know, I look at this little diagram that I put together here. You've got, you know, blue representing public rights. You've got yellow representing private rights. And then, you've got red in the middle, which is the government that's gotta figure out how to handle that balancing process. And it really is a system that we have to consider and we have to look at. So, let's talk about rights, okay, and let's talk about some of the propriety rules. Again, I'll remind you that this whole program is predicated upon the concept that we're going to be talking about this on a national perspective. So for example, a lot of states have, what's called the public trust doctrine. And well, what is the public trust doctrine? Well, the doctrine basically says that the government, the people own the water, all water, no matter where it's located, no matter how it's used. Water in its form is owned by the people. From that doctrine, the public trust doctrine, saying the government's responsible for keeping the water. It's being held in a public trust. It's a concept that grew a lot in late 1800s, early 1900s and it became the law in most of your Midwestern states and some of your Eastern states. And it basically says that the government decides how water is going to be used. So, what does that mean? Well, that means if you would have a property that was on a lake, for example, the minute you step over, what's called the high watermark, and every lake river stream, creek, whatever, has what we call the high watermark. That's the highest average point where water hits the shoreline, whether it's the bank of a river, whether it's the shore of a stream or a lake. It establishes that high water mark. And it says that once you step beyond that point, it's no longer you, the individual, that has control of the property, it belongs to the government. And the government must make a decision for the good of all people on how that water's going to be used. Now, that's the basic doctrine. And then, that doctrine gets shrunk down by policy decisions and by certain laws, for example, and we'll talk about this is we have this, is concept of navigation and we have a point of navigation that's been established in most states. Between the shoreline or the high watermark and the point of navigation. that is an area that is often referred to as the riparian zone. A zone of the water that's used for specific recreational purposes by the private property owner who's shore, or whose property bounds the water, in other words, from the high watermark, back to the rotor, whatever it is, the person that owns that property has rights to use that portion of the lake, the river, the stream. It's a riparian zone. It's the area that they have the right to use. Now, is it to the exclusion of others? And the answer is, could be. Tell me what the facts and circumstances are. In most cases, it is. But that riparian zone ends when you hit the point of navigation. The point of navigation is the point at which the public has the right to enjoy all of the water without worrying about interfering with the private landowner. And every state, well state, the way I look at it, establishes what is the riparian zone? What is the point between the high watermark and the point of the point of navigation? And so, it's important that you understand that. And we'll talk about that in more detail. But understand that we talk about the priority of rights. This is example of balancing, balancing the right of the public to use water against the private right, to use that piece of the lake or the stream that they have. Now, that same right, priority of rights, comes into play when we talk about agricultural purposes. In other words, if I have a stream that goes through my property, do I have the right to divert that stream for navigate, well, not navigation for irrigation purposes? Do I have the right basically, to steal that water, to block that water up and use it for my own personal purposes. And again, you look to the public policy debates that go on and some states, the answer is yes. We'll talk about this a little bit later, but it's the first in time, first in right doctrine. And that does exist in some states. And you have to recognize that, that's a valid doctrine. You may say, well, that's abhorrent to the way we do things. Well, it may well be in your state abhorrent to the way you do things. But the reality is it is a doctrine that is used and it does exist. What is this all based on? It's all based on police power, you know. It's all based on that concept in government and in our constitutional legal system of how we do things, that there is a public interest. And that public interest demands that the government use its police power to maintain the quality, the quantity, and now more than ever the availability of water. It's just essential that that happens. So, what are we looking at when we look at private rights? Well, private rights are under common law. There's very few private rights that I find created by statute. Why is that? Because water was originally seen as belonging to the person who owned the property. If you owned the property, you owned the lake. If you owned the property, you owned the stream as it went through your property. In other words, common law took a property right concept to water. Water was no different than dirt. It was part of the real estate. And, you know, it's kinda like the first in line, you know, whoever gets there first, that's their water, or the first in time, you know, Whoever takes the water first gets it. And that certainly was very, very important in the mining industries. And it still exists in a lot of states that are dependent upon mining, where they're gonna say, yeah, if you need the water to do your mining operation, your silver gold mines, you pull that water. And if IT gets all used up by the methodology, too bad, so sad for the people down shore. They have no right to presume that that water, which is coming from a resource further up the line is going to be theirs. And so, that's the original common law doctrine that existed, was that water was a property right, and he who has, or she who has the water on their property has the right. And that's where the doctrines, as I said, first in line, first in time. And it really found itself oftentimes in the concept of survival. And I read through really old cases and some old English law discussions of water rights. And it said that water was essential for the survival. And since it's essential for the survival, the person that has the water has the right to survive. It's kind of a, you know, a selfish purpose, selfish concept. Very alien to the public trust doctrine, which we'll talk about. But it certainly was a doctrine. And it was the basis of common law. When we started looking at water and we looked at the common enemy doctrine, which is part of Fresh Water Law, where water, if it comes down and it destroys your house because it burst out of the banks of a stream, too bad, so sad. If your neighbor fills his swimming pool and swimming pool cracks, and water comes pouring down into your property, it's too bad 'cause water's a common enemy. We just take our own risk that water's gonna come from. We don't ask where it comes from. Well, we all know that doctrine has lost a lot of its support over the years. And we really don't see a lot of support for the common enemy doctrine anymore. But it's out there. And we'll see a lot of that if we continue to see the flooding we've seen over the last several years. And the other thing to remember is, different areas of the United States have different common law traditions. So, I talk to you and I talk to you from a perspective of college professor, I teach, as well as practice law in the area of water rights, but I also give a perspective from the upper Midwest. And we have different traditions that I'm sure that many of you do. So, when I talk about these common law traditions, I want you to understand that you have to look to your own case law to find some of those common law traditions. What are you going to be looking for? You're going to look for the doctrine. You're going to look for those early cases that talked about, did the water go with the land? And most of you are going to find out that that's the common law tradition that water goes with the land and that's important to look at. Also case law is a great place to look for clashes. And I tried to pick a couple of cases out that I thought were pretty interesting because they talked about the different common law theories. The first case, City of Madison, which was my home state, Madison, Wisconsin versus State of Wisconsin. And that case was a case where the City of Madison filled in a waterway. They closed it off because they needed, Madison has three, four, five, six, six major lakes right in the City of Madison, and they needed to get causeways and they needed to move property and move traffic. And so they damned up, they built levies. They did things that basically filled in existing water ways to the detriment of somebody else downstream. And the common law would've said, you can't do that. However, the case law in this case, said, yeah, but there's a doctrine that's more important than the property rights doctrine. And that's the public good. Using the police power that said that the rights of the citizens of Madison, where the lakes exist, if there's a determination by the Madison City Council that it's in the public good, then that would trump any doctrine that would suggest that everybody has the right to free flow and pre-use of water. And that would prohibit under our Department of National Resources rules that say you can't fill in a waterway. So, that's a good example of two clashing concepts. The clashing concept of, what's good for the economy, what's good for the community versus what's good for the common law concept that water belongs to all of us, public trust doctrine that we've discussed a little bit earlier. And that's where you see that clash. Another one was Mineral County versus Lyon County. This is an allocation case. And I got all this text material but in much more detail and written materials that you'll be provided for, where you can contact me and I'll provide it. But the bottom line in this case is that, it's whether or not one county can basically steal water that really was flowing through to the other county. And the court said, well, it's a question of allocation. And who has a superior interest? Who has the superior rights? And this becomes really an interesting concept because my city will grow if I can keep this water and I can preserve this water before it leaves the county and goes to the next county. The next county says, yeah, well, we can't grow at all. We'll die on the vine if you cut us off. And we are more important than you are. And how do you make that decision? How do you take a finite resource, water, freshwater especially, and how do you allocate it? What are the bases of allocation? And that goes to policy. What's the policy, you know? And it's interesting when the state government or the federal government establishes policy that has a local impact that's extremely damaging to the local growth or the local development. In other words, is the policy the United States to continue to do what doing, how does that survive when you look at the policy of an individual city or individual property owner's rights? It's a clash that's extremely important. The Audubon Society Case, which is another one I point out is really interesting because it looks at all three factors. It looks at quality, it looks at quantity, it looks at survival. And what the Audubon Society is saying, you can't look at a picture today or you can't look at an issue today. You have to look at the impact that if you take and you don't control the quality and you don't preserve the quantity of water, you're going to destroy. And there'll be in this case, certain animal life that's not going to survive because if you don't keep the marsh there and you don't keep the marshal of water, you're going to destroy the habitat and certain animals are going to die, certain birds are going to perish. And that's a decision too. I mean, where does the natural resource of recreation, the preservation of animal life, where does that fall, you know? The concepts of we're draining our marshes and our swamp areas faster than grease lighting, just to use a colloquial term. Go to Florida, look at the Everglades. You can go to Wisconsin, look at the Horicon Marsh. You can go to other parts of the country that you know individually where we need that water that's sitting in those marsh, in those wetlands, and we're sucking it out for use in industry, we're sucking it out for use and agriculture, to expand our agricultural uses. We're taking arid land and we're taking water out of the mountains that used to be there for years and we're pulling it out of the mountains, which is going to destroy a lot of the habitat in the mountains so that we can grow a crop in the valley or that we can keep the city of Los Angeles or some other metropolitan area full of water resources for their hotels, their motels, their businesses. And what is it going to do to the survival of certain people upstream, so to speak. So, there's the profound clash that exists. And I want you to know that most cases that I read, and I've probably read a few thousand cases on freshwater and water quality, the vast majority of these cases, what they're really looking at is the difference between what I look as the haves and have nots. I mean, there's not a great lobby for birds, but there's a huge lobby for maintaining metropolitan areas. Most of our cities do not have the water resources to survive unless we get into desalination. In other words, if we can pump out the oceans, maybe we can keep, you know, the San Franciscos, the Los Angeleses the New Yorks going. But if we're going to continue to pull out of our wetlands and our marshes and our mountain resources, something has to give, something has to die in that balancing process. And that's the whole survival of the fittest, so to speak or survival of the wealthiest. So, that's the conflict you're gonna find in water law a lot. And that's where legislation becomes extremely important. And that's of course, if you look at the Audubon case, what they were trying to say in that case is, don't look at today or tomorrow, look at the future. Look at what the impact is going to be 10, 20, 30 years from now, because that's really where we're at and you know, the balancing. That's what makes this area of loss so interesting because we're constantly balancing. I mean, do I put this farmer out of business so that, you know, the city can have enough water and that he isn't gonna be able to have water for irrigation. And if he doesn't have water for irrigation, it's gonna cost him. His yields on his crops are gonna be such that he's not gonna be able to survive compared to the people in the next state where they are able to take and irrigate the fields. It's that whole balancing process that's out there. And that's so unique to this area. So, what are the principle cores of water management? And that's really what we're talking about today. Remember there's laws, rules, regulations, codes, statutes, ordinances and then there's policy. So, that all makes the field of water management. So, if you look at, you know, I said the size of the pie, it's a huge pie because there's environmental concerns with recreational concerns, there are commercial consumption concerns and there's human consumption concerns. These are the factors that you got to keep in to consideration every time. And I think it's kind of in reversal, human consumption, I would say is the number one concerned. Commercial, 'cause we have to have economics to survive, you know, then recreational and perhaps environmental and how they all fit together is you can't separate them because environmental's gonna impact upon human consumption. We know that. And recreation and environmental certainly fit together. So, those are the factors you have to look at whenever you're setting up to establish some type of argument in favor or against some use of water. The assumptions over the years have been extremely different. I was able to determine that the history of water law in the United States has its its primary concern, agricultural consumption. The commercial use of agriculture. And the other big area was hydroelectric or the use of water to produce power. Now, hydroelectric uses have diminished, although there's many, many people that would like to bring it back because it's a very clean way of creating electricity, which of course is becoming more popular as we try to move away from fossil fuels. Hydroelectric dams exist throughout the United States. We know the huge ones, the big ones that are in jeopardy right now. We also know there's many, many communities that used to have their own hydro electric dam. They were fortunate enough to be on a river or they had some stream or creek they could move. Remember that majority of the country used to mill flour and everything else through the use of water and water wheels. Boats were, you know, the predominant way of travel in many areas of the country. So, if you look at the history, that's really where we're at. But it's changed. I mean, obviously agriculture still uses a tremendous amount of water. The largest consumer of water is still agriculture and that surprises a lot of people. But it's there and it's the it's real. And you can do the studies and you can find out it's true. The quality then is what the other thing that we need to look at when we're looking at management. We need to maintain a reliable supply of water and we need to do it with legal certainty. What do I mean by that? Well, I spend a great deal of time in my practice, making sure that municipal wells are safe, making sure that municipal wells have enough water and then making sure that a municipal well is not negatively impacting the other community resources that are needed by other industries to perform their duties and services. Now, what municipal wells oftentimes do is they devalue private wells because private wells may be in a lower aquifer than what a municipal well would be. And by gauging which aquifers you can use for certain purposes, you can really balance the reliability of water supplies by looking at different aquifers. But there has to be some type of legal certainty so that a person knows that if they set up an irrigation system or if they know they're gonna put a factory in a certain community, they're gonna have access to this much water and they're not gonna be taken off the, excuse me, nobody's gonna turn off the faucet six years from now, five years from now. It's one of the reasons you're going to see certain industries that had been locating in the desert Southwest, leaving the desert Southwest to go to areas where there is water, because water is an important component of their business. And if they can't have water, they're not gonna be able to locate. Or if they can't have a constant supply. It's like businesses in the north having a constant supply of natural gas because in the winter, you've got to be able to heat the business. And if you can't heat the business or heat the hotel or heat the houses or heat the schools, you're not gonna survive in the north woods very long. We just don't have enough fireplaces and wood left to go. So you have to recognize that the availability of the supply of water becomes a necessity, but it also becomes a legal right. So what I tell businesses, and this is why this program is valuable to lots of different people, if you're going to relocate to a certain area, one of the things you need to do is look at the water resources that are going to be available to you. How much water is going to be available to you? Is there a limitation on that water? What's the cost of that water? Do they have the right to turn that water off if the reservoir outside of town goes below a certain level? 'Cause that's going to impact your business plan and you need to be able to recognize that. We talk about water rights, we're not just talking about going out and going boating. It really has, as I said, the majority of water rights there in the world of agriculture. And agricultural without irrigation, about 20% of the America's agriculture is gonna go away because you can't grow crops without irrigation. But if we continue to irrigate at the rate we're irrigating, what's that impact going to be on the water resources for the future? That's where you have to look at this legal certainty. Also, social welfare has to be involved, you know. What's good for the community versus what's good for individual rights. And I see that a lot where people want to use water for recreational purposes. They wanna build water slides, water parks and they want to consume, you know, thousands and thousands of gallons of fresh water to keep their water park alive. At what cost? And that's a question that we're starting to ask ourselves is, how much water is this water park, which is a very popular activity now, consuming? And if it's consuming more than we can justify, then of course we've got a management problem and we've gotta resolve that management problem, you know. If you look at Central Florida and you look at the water parks in Central Florida, and you look at the amount of water that's being consumed by the industries that are located there, tourism, the swimming pools, all these uses of water, and yet you look at the challenge to some of the wells that the communities have dug. And then, you'll go down so far, you're going to start going out of the clean water or the pure water aquifers. You're gonna run into problems with the salt water seepage, you're gonna run into problems with potholes, such as, or not potholes, sinkholes, you know, such as you're seeing. These are all part of the management program. And that's why you're seeing lots of rules written around these principles. So, you have to understand what the core principles are if you're going to be analyzing any type of law with regard to water. So let's talk about usage, you know. We talked about the principles that are overriding, but let's talk about water usage. How is water used? And what's the impact of that usage? First of all, recognize that impact is far reaching. We're not just talking about, what towel you're using. We're not just talking about that drink of water or washing your hands. The impact is, every time we use water, every time we displace water from one location to another, we're talking about how far and what impact that's going to have? Again, I set a lot of research and details and the materials that I put together for this program, but succinctly you need to understand that it is not just today's issue. It's a long major, major impact. I mean, I look at my home State of Wisconsin where they thought they could dump as much crap as they wanted to into the Fox River, which is one of the major economic tributaries that goes from Green Bay into what we call the Fox cities, Lake Winnebago. And so, now we have lakes that are contaminated. They're dangerous. But the thought was well, but there's so much water. It's all gonna filter itself. And there's so many marshes and don't worry about it. the wetlands are, well, heck we covered up those wetlands. We build factories on those, we build hotels on those, we build houses on those. So, what you have to recognize is, what is not seemingly a problem today may well be a problem in the future if the policies and the rules don't anticipate. So, what have states developed? They've developed a whole legal and regulatory scheme that uses to prioritize. This is what you need to do, is you need to look at the prioritization of your state. I mean, I constantly look at the water quality and water quantity prioritizations of the Wisconsin Department of Natural Resources. And I participate in those discussions because it's very important as part of the legal community that we're setting the paradigm that's going to be used to determine the competing, relatively competing forces for the usage of water into the future. If you're a commercial attorney, you're representing businesses, you have to have that certainty and you have to have that legal certainty that you're going to have a legal right to consume or to obtain the water you need to make your business viable. Like I said earlier, you don't want to be sitting in the situation where suddenly one day the government says, oh, no more irrigation. And you've developed a huge farm operation predicated upon irrigation. But it could happen if you don't look at and you don't understand the impact. That's why I say, you always have to consider the multiple uses, the different uses of water, commercial, recreational, surface water. It's like car washes. I mean, people think that those, you know, are just fine. They're great. They're wonderful. In the old days, we used to do it in our backyards. And now of course, we have companies that do a machine. The amount of water that's consumed by a car wash is incredible. And the problem is you're oftentimes, washing materials off your cars that go into the system that are chemicals, that those chemicals are part of the forever chemical world. And we have to treat that and the cost of treating that is going to be reprehensible in the future. I mean, if you don't believe that, talk to DuPont, talk to 3M who are getting, you know, sued now for, you know, Teflon materials and Scotchgard and things like that that have now found its way into the groundwater and through very innocent procedures. I mean, they didn't pump that into the water. They didn't pump Scotchgard into the water. But no, the materials that were treated with it ended up in landfills. The landfills were improperly capped. That water then seeped through, picked up the chemicals, chemicals went into the groundwater, the groundwater went into the aquifer, the aquifer is now being tapped for drinking water and bingo, we've got a problem. We've got a health problem. So, that's what I'm talking about when you look at that. And oftentimes we talk about this from the perspective of a blame game. And that's not what I'd like to suggest that we as attorneys or part of the legal community do. I would suggest we look at it from the perspective is how can we prevent it and how can we repair it going forward? So you wanna consider other factors. And one of the other factors that I think we need to look at when we are running some of the new laws with regard to water and water consumption, water usage, water allocation is climate changes and the cycles. And there's certainly a lot of literature out there on that topic. So, what are water allocation rights? Well, as I told you earlier, there's numerous rules and common law traditions. But basically here's the rights I think we wanna talk about. First of all, there's what we call the riparian rights. And I talked about this a little bit earlier. But understand that riparian rights is only a right that goes to a landowner with preparing land. So, riparian rights under the common law traditions in most state statutes that I've been able to look at only gives rights to the people that own land that's on a waterway. In other words, people that have property that is bounded by a stream, a lake, river, they own certain rights to use that water. Those are called riparian rights. The rights that are inherent because you own land. Now, some states have extended riparian rights through the use of easements. My home State of Wisconsin specifically said that, they passed a statute, that says no. No riparian owner, no property or landowner can extend their rights to anyone else other than that landowner through any type of separation of the property right of ownership or usage such as an easement or a license. You can't do that because we're trying to define riparian as a limit to right only to landowners. Now, that's not true in every state. But those riparian rights have a standard. And this is the common law standard. And I found it everywhere I looked and that's the reasonable standard. So, when you talk about a person using the riparian zone, which is the water along the property that they own, so if it's a farmer's field and he owns an acre of property and the stream runs through that entire acre, he's got an acre of riparian rights. And if he owns the property on both sides of the stream, he's got riparian rights from both sides so to speak. Does that give him the right to divert the water? No. Does it give him the right to use the water? Yes. Does that mean that he can put a hose in there or put a tube in there and suck it out? Yes. In many cases that they can. But you have to look at your individual rights because is that a reasonable use of the water? Now, if you take it and use it all, that's not reasonable. It's not reasonable to suggest that you have the absolute right to dry up somebody else's downstream. Now, that's under the concept of common law riparian rights. There are other allocation rights that would say that's okay. That's the first in time, first, you know, in rights, so to speak but not on riparian. Now, so the reasonable standards there. Now, do non riparian landowners, do they have rights? And the answer is, no. They really do not. Now there may be states 'cause I didn't research all 50 states, but there may be states that allow someone that owns riparian rights to transfer those rights to someone else because it is a property right. And in many states without a statutory limitation, such that we have in Wisconsin, your property rights are transferable just like you can, you know, rent a piece of property. So, you can transfer your right of possession of a piece of property, why can't you transfer your riparian right? So under common law, you would be able to transfer that riparian right. But many states have statutes that prohibit that. Also remember that riparian rights don't have any impact on non-use or usage, you know. If I go swimming a lot in front of my pier, I don't have any more rights than the fact, of the person across the road that's never gone out on their pier has never gone out in the water. Non-usage is not take away their riparian right. It's not one of those things you can lose by adverse possession or by prescriptive right. It is a right that is inherent to the land, the riparian land and the ownership of that. As I said earlier, diversion may or may not be allowed. It depends on your state. Now under common law, reasonable use standard. Yes, a portion of it can be diverted as long as the portion is being diverted is reasonable and it doesn't have a major of substantial impact on others' usage of the water. And that's the kicker is, what is reasonable? Well, reasonable as we all know, is based upon the facts and circumstances. Now, the other thing you have to look at, and this is what making national programs make so interesting is you have to look at the different permitting systems, 'cause for example, in my home state, you can't irrigate without a permit. So, you can't draw water out of a aquifer, you can't draw water out of your riparian rights without a permit if you're running an irrigation system. Now, there's an argument of what's irrigation and what's simply drawing water for personal use or whatever else. But I'm telling you, in most cases, most governmental agencies are going to suggest permitting because that's part of the water management system that they've adopted and that they're using. So, it's important you look at that and you keep that in mind. Also you do have what we call the apportionment doctrine. We talk about this. This the one that we talked about in the minors, the olden days where you had the concept that first in time, first in right. And the superior appropriator of the water has the highest priority. So, if I came there and I started pulling the water out, somebody upstream, so to speak, couldn't come and start taking away my water 'cause I was the first in time I have the right And that is been a statutory or a common, excuse me, a common law right that's much appreciated in the west, especially in the mining areas where, you know, what they call, calling the river, is acceptable. It's a doctrine which says, you know, that's my right, okay. Now understand that there's a new doctrine that's coming into play. And that's the doctrine that prevents waste and water to evaporate. And that free to call doctrine that some of you are very well appointed with, really says that appropriator must use water for beneficial use, may not divert from the natural course, and that any water that is diverted has to actually have a beneficial use. And that's different than applying for a beneficial use. In other words, you say, I'm gonna use this water to irrigate my fields. You gotta prove at the end that it really did irrigate the fields. And then that's really becoming a very, very popular doctrine especially as we get into shortages. Now, some states have a hybrid between the two. Some have the hybrid system that has both, riparian and apportionment rights. In other words, it says, well, you can use the water for this purpose in this place, but in this place you can't use it for that. And I think the evolution of, what I'll call the water allocation rights predicated on some hybrid system is really where we're getting to, because that is going to be the future. The future is really going to look at, how do we allocate water based upon the needs of the whole population. That's gonna have a very negative effect on the common law doctrine, my property, my rights, my water. But I think we all know that it's probably gonna come in the future and that's where it's gonna be. Let's talk about groundwater for a second and private groundwater rights. Basically we were talking about surface water previously. I'm gonna talk about groundwater and the allocation rules that I found out there. And groundwater, you know, can be a nuisance. But for the most part, it's a very, very valuable commercial resource. Groundwater aquifers, they have special rules, they need to be treated differently. But they're still, in most of our states, they're controlled by property rights. Now, in some states we have water rights where you can own the aquifers of the underground water just like you can own mineral rights. You can consider water as a mineral. And that'll change the scope. So, you may own the surface and you may own the right to surface water like lake, streams, creeks, et cetera, but you don't own the water rights to the aquifer. Aquifers are extremely valuable. And for the most part, that's where our drinking water comes from. That's the survival water for the future because we're going to be tapping more and more into that aquifer. If you don't believe me, go look at Florida, go look at the states where there are huge aquifers. As you see glaciers made, melt, excuse me, Canada and Northern United States are going to see an increase in the water that's going to be flowing underground in the aquifer. So, you have to take a look at those systems. And really there's five doctrines that I was able to find. The first was what we call the absolute dominion. In other words, you own the land, you own the water underneath it. You have the absolute right to drain everything out of that aquifer that you can possibly drain out of it. And that's where you put down the large high capacity wells and you suck the water out. But remember when you're doing that, you have to be careful because even under the absolute dominion rule, there's a concept that you may be pulling water out of, not your aquifer, but somebody else's aquifer. And only a hydrologist or geologists can really give you a definition of that. But something you need to do that. And that really gets you to what we call, the correlative rights doctrine. In other words, my right versus your right to this aquifer, because a lot of times aquifer is not gonna stay in one person's property. It's going to be existing under the ground for a lot of properties and there's underground streams. and mainly I'm talking about underground lakes so to speak, beds of water that have been collected underground, that exist because of the seepage of water from the surface, from rains, from, you know, melting glaciers, one of the biggest things that created a lot of the aquifers in the past. So, you really need to look at that. That's a collective rights. Again, going back to the dominant right, you have the dominion over the property. Then we have what we call prior appropriation, which goes back to my old mining days. First in time, I took this water outta here first, I got the first right. If there's anything left over after I'm done using my right, then you can have yours. The reasonable use doctrine is probably the number one doctrine in most of our common law states in the sense that reasonable use says, you can use your aquifer, your underground water, your ground water in a reasonable manner. But the other thing that's really important, when we're talking about ground water is what we call the restatement of torts rule. Again, I'll explain some of these. I'll quickly go through. Again, the dominion right as I told you, that's the absolute you can pump forever, but gives you the states that currently have that. Interesting of those states, you know, you may question whether or not Texas has a lot of water. But I think the rest of the states certainly have a lot of aquifers and have a lot of water. The correlative states, those are the states that have this balancing between the dominion, you know. It's trying to distribute water on some type of an equitable basis. And again, equitable is all facts and circumstances. This is the California rule for the most part. And it certainly takes into consideration shortages that exists from time to time. I give you a case site there you may want to take a look at, but if you're in any one of these states, you're into what we call the correlative rights doctrine. Then we have the prior appropriation. And again, you'll find that this is mainly your Western states. These are the states that really got their start. A lot of it was predicated on the first hand landowner there. So, the first person to drill into the aquifer to feed their cattle or to do their mining, they're the ones that have the rights. They also have doctrines that relate to the permitting system, which will look at the prior use and they'll limit the prior use based upon the prior appropriation not an expanded appropriation. And that's kind of becoming an evolution and kind of that what I talked about earlier, the blending of the different doctrines. What I call the American rule, and that's the vast majority of state have this, what we call reasonable use doctrine, which I talked about quite a bit. But I wanna talk right now about the states. And there's only two that really have adopted the rest restatement. Of course, mine happens to be one of those states, Wisconsin. And what it does is it codifies the use of water based on case law uses what I talked earlier about the common enemy, get that word out, under the tort liability law and how it's evolved. But understand that this is using the standard that says that you've got the right, but you only have the right as long as it doesn't hurt someone else. And it gets into that doctrine. Again, this restatement of the law, I think, is becoming more of a valuable tool for those of us that like to look at rules rather than policies. What about harvesting private water? Well, many states have no rules. Where does this become important? And I think a lot of you don't think about this because you don't see it, but rain water and snow harvesting and capturing and diverting water that comes out of the sky is becoming bigger and bigger. More and more people are building huge mass resources to collect snow, especially out in the Rockies, but somewhat, even in the Midwestern states. A lot of people are developing personal systems to catch all the rain water that comes off their roof not allowing it to get into the ground. Trying to capture as much water. And so, the harvesting of water has become a new issue. And the government's beginning to look at this. What are the regulations? Well, Colorado has a regulation that homeowners can capture and collect, but in other cases, in other counties, it's illegal and that's especially true in some of your snow resort communities. They're not allowing them to capture as much snow water as they possibly can, because it has an impact on everyone else, especially in the lower or the arid areas of the state. So watching Colorado, an evolution of this water harvesting is going to be an interesting topic for the future. Surface runoff, again, we have several documents on how do you, or rules on how do you cover water runoff. And this kind of outlines each and every one of those? I mean, where is it going? Common enemy, we talked about. The reasonable use, which is what I see most states do is, you can use water, you can push water across your property on to other properties. But if you do damage, you're gonna pay for it unless your use is what we call reasonable. The last area I'd like to cover is simply, I mean, the rights of the public to use water. Navigation is still pretty much a rule across the United States. It says, you have the right to navigation. You have the right to use the waters of the state. Those states that have the public trust doctrine definitely say that you have the right to boat, you have the right to travel. And for example, states will use that. If you can float a stick down, then anybody can walk in that water, anybody can boat in that water, anybody can canoe in that water even if both sides of the water, the stream, the lake are owned by this one person, you still, if you can get into that water, you can use it for navigation. So, you're going to see a lot of issues, I think, developing on this navigation. But again, I don't see that this law is going to change much. I think that you're going to see that the government's going to try to preserve as much water as it possibly can now and into the future. I did want to touch on the public trust doctrine, 'cause it's really important. I mean, this is the doctrine that water is for the benefit of everyone. It's been around since the 1800s And it's being used often to say that, no, you can't drill, you can't mine, you can't put a boathouse in the lake, you can't put a pier in the lake, you can't obstruct navigation because the public has the right. And it certainly is a justification for many states to prevent people from abusing the use of water in their state. Public reservation of water rights. Don't forget, Native Americans have rights under certain laws, the McCartney Amendment, there's two cases I cite. Native American water rights today are determined by a set of principles under that Winter's case, which basically says that unless it's essential for the public, the Native American rights are going to triumph or trump the other rights there. What are we trying to do for public interest? What are we trying to protect? Well, it's pretty easy to understand that what we're really trying to protect is the public. We're trying to protect water resources. We're trying to make sure the water is clean, you know. If you look at The Clean Water Act, which is a program unto itself or the Wetland Regulations for habitat, it's all looking to the future. But there's also laws, you have to look at, nuisance laws, trespass laws, negligence laws, they're all important. We're talking about the control and management of water and water resources. Interesting enough, there's 25 different agencies in the federal government, from the Army Corps of Engineers to the EPA, to the NEPA, to the Endangered Species, to the Wildlife Scenic Group, all of these agencies are out there trying to do some type of land management, water management in conjunction with Water Management. And it's a huge field. And today, we're only touching the very tip of it. So, conclusion. What are we supposed to get out of this program? Number one, the rules are tightening. Know the rules. Read the rules. Know your law. Common law principles are giving way to national trends. The shortages survival are taking over. The system is very, very fragment. 25 different federal agencies, let alone how many state agencies are trying to manage water products? The conflicts are immense. It's a great practice area. Water policy has got to be an interactive and not just a reactive problem. And academics agencies have in climate change, I think is going to really be significant into the future. You know, this is a program that I put together because I thought it was important. And I hope that you got something out of this program today. I know this just touches the surface, but if you keep these last principles in mind, I think you'll have a great career in the area of water and fresh water management. And with that, I say, thank you. And I hope you enjoy today's program.

Presenter(s)

SS
Steven Sorenson
Shareholder
von Briesen & Roper s.c.

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                                                          Status
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                                                          Credits
                                                          • 1.0 general
                                                          Available until

                                                          September 21, 2024 at 11:59PM HST

                                                          Status
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                                                          Credits
                                                            Available until
                                                            Status
                                                            Not Offered
                                                            Credits
                                                            • 1.0 general
                                                            Available until

                                                            September 21, 2024 at 11:59PM HST

                                                            Status
                                                            Available
                                                            Credits
                                                            • 1.0 law & legal
                                                            Available until

                                                            September 21, 2027 at 11:59PM HST

                                                            Status
                                                            Approved
                                                            Credits
                                                              Available until
                                                              Status
                                                              Not Offered
                                                              Credits
                                                                Available until
                                                                Status
                                                                Not Offered
                                                                Credits
                                                                  Available until
                                                                  Status
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