Regulated Rivers - Hydro-Environmental Analysis: Freshwater Environments - page 72

either groundwater or water quantity issues; generally, the agency concentrates on the “chemical”
and “biological” components of the integrity of the nation's waters. However, the “physical” com-
ponent of this integrity is critical, in that you cannot have good water quality or the “propagation
of ish, shellish and wildlife” if you do not have an adequate quantity of water. In the future, the
agency may focus more on the physical component or water quantity. For example, the U.S. EPA's
(2012) “Safe and Sustainable Water Resources, Strategic Research Action Plan 2012-2016” problem
statement states:
Increasing demands for sources of clean water, combined with changing land use practices, growth,
aging infrastructure, and climate change and variability, pose signiicant threats to the Nation's water
resources. Failure to manage the Nation's waters in an integrated, sustainable manner will limit eco-
nomic prosperity and jeopardize human and aquatic ecosystem health.
In addition, the CWA has an indirect impact on water use if that use impacts water quality.
For example, the federal courts have upheld that state administrators have a “public trust duty” to
exercise authority to condition appropriations to accomplish water quality goals (e.g., in California
U.S. v. State Water Resources Control Board [1986], commonly known as the Racanelli decision).
In Mississippi, state law states “No use of water shall be authorized that will impair the effect of
stream standards set under the pollution control laws of this state based upon a minimum stream
low.”
3.6.2 S tate L awS
Traditionally in the United States, water rights have been a state's right issue. That is, each state
controls the water within that state. In general, water laws have been based on either statutory law
(resulting from legislative action) or common law (resulting from court cases and judicial decisions).
The states' rights issues result in differences in water law between states and often differences in
water law between surface water and groundwater.
3.6.2.1 Surface Water Law
In the United States, four types of water law are used to control water and resolve conlicts between
water users:
1. Riparian rights—which are most commonly used in eastern states, where water is more
“plentiful,” assign rights to water use to landowners and require equal sharing among users
in times of shortage.
2. Appropriation system—which is dominant in the western states and allows the sever-
ance of water rights from landownership and allocates available water in order of priority.
Priority of water use goes to those having senior water rights, those who used the water
irst (irst in time, irst in right).
3. Hybrid system—which contains elements of both systems.
4. Public Trust Doctrine—afirms public and state ownership of certain natural resources
that beneit all.
3.6.2.1.1 Riparian Rights
Under riparian rights, the landowner adjacent to or abutting a stream (the riparian) has the rights to
the natural low of the stream at that location. That is, riparian water rights only entitle the owner
of those lands to use the water. The “lands abutting” may be determined typically using one of two
rules: (1) by lands that have been held as a single tract through the chain of title (so that any non-
abutting lands sold or not part of the original title lose their riparian right forever, the source of title