Environmental Engineering Reference
In-Depth Information
“The politics of water is one of the most intense and divisive
issues I see in my practice,” says Roger W. Sims, a water resources
specialist in Orlando, Florida. As an attorney, Sims regularly deals
with water management districts, state and federal environmental
protection agencies, the U.S. Army Corps of Engineers, and the
U.S. Fish and Wildlife Service. “It's largely because water is so essen-
tial, and people are used to having it fairly cheaply.”
THE RIGHT TO WATER
Let's begin with a few basics of water law, keeping in mind that even
the basics don't always apply to all cases in all places. As with oil and
natural gas, just because you own the land doesn't mean you get the
water. The water may be beneath your property, running through it,
or bordering it, but that doesn't mean you get it! In fact, if you live in
parts of the western United States, that water very well could belong
to a person, business, or organization miles away. If such is the case
and the water isn't yours, don't touch it or you could get in plenty of
hot water, fi guratively speaking. That's because of
water rights
.
Two Legal Approaches
Different parts of the country take different approaches to water
rights. Water rights can be either
riparian
or
prior appropriation
, or
a combination of both and more—or less. Prior appropriation, in
use across much, but not all, of the West, is based on the concept of
fi rst in time, fi rst in right.
The fi rst person or group to take a quantity
of water and put it to full
benefi cial use
has a higher priority of right
than a subsequent user, according to the U.S. Geological Survey
(USGS). In other words, the earlier in time that the water right was
granted, the older, and more senior the right to access that water.
An 1888 right granted and put to benefi cial use until today takes
precedent over a 1988 right, which in turn is senior to a 2008 right.
As expected, though, the rule is not that simple, with plenty of
nuances open to dispute. Benefi cial use, for example, is a gray area.
Rights can also be lost if they're not used. Full rights or a por-
tion of water rights may be sold, leased, or transferred separately
from ownership of the land. In fact, the buying and selling of
