“Traditional” Water Rights &

Reservations of Water

A River Management Perspective

April 15, 2014

Managing Rivers in Changing Climes: Training Tomorrow’s River Professionals

David W. Schade MPA

Section Chief

Atwood Building 550 W. 7th Ave., Suite 1020 Anchorage, Alaska 99501 PHONE (907) 269-8645 FAX (907) 269-8904

SEAN PARNELL, GOVERNOR

DEPARTMENT OF NATURAL RESOURCES DIVISION OF MINING, LAND & WATER

Water Resources Section

Facts: Water in Alaska

586,412 Square Miles of Land Area

43 % of the Alaska is wetlands

Over 3 Million Lakes > 1 acre

Up to 15 Million Miles of “potentially” navigable

waterways

Prior Appropriation Doctrine

Constitutional Public Trust Doctrine

Is it Navigable?

Tidelands

Shorelands

Submerged lands

Kuskokwim Village of Kipnuk

Kuskokwim Delta – Subject to tidal

influence

The States hold title to submerged lands in their sovereign

capacity “in trust for the people of the state,

that they may enjoy the navigation of the

waters, carry on commerce over them, and have liberty of

fishing therein, freed from the obstruction or

interference of private parties.”

Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 452 (1892).

Public Trust Doctrine

Public Trust Doctrine

This United State Supreme Court has

established the public trust character of

submerged lands.

See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473 (1988)

Submerged Lands Act of 1953

The federal government retains:

…the constitutional authority of the United

States of said lands and waters for the

purposes of navigation or flood control or

the production of power, ….

Non-Navigable Waterways

Ownership of the land under the non-navigable

waterway is owned in some portion by the upland

landowner.

State Public Trust Law ; may give some public use

rights to the waterway, despite the submerged lands

ownership (title) status

Floatplane Use does not make a lake

Navigable for Title Purposes

Upland Riparian Rights

As Related to river management:

Right to control access to river across private

property

Right to have access to river

Right in some states (eastern states) to use water in

reasonable quantities.

Prior appropriation rights which are appurtenant to

land (western states)

Water Rights

States Control of Water Rights

Subject to: _________

Water Allocation Principles

Waters subject to Water Rights

Reservations of Water

Purposes of reservations

Ways to establish reservations

States Control of Water Rights

are subject to:

McCarran Amendment:

Limited waiver of federal sovereign immunity for

purpose of water rights litigation

This include Indian (Reservation) water rights

States Control of Water Rights

are subject to:

Interstate Adjudications which can be done by

multi-state compacts which are then ratified by

Supreme Court decision or Congressional

Action

States Control of Water Rights

are subject to:

US Treaties regarding International Waters –

coming into and out of the United States.

Canada http://ijc.org/en_/Transboundary_Basins

Mexico http://ibwc.state.gov/home.html

Water Allocation Principles:

Riparian or Common Law Principle: Owners of lands

on the banks of a river are entitled to the continual

flow or use of the stream.

Prior Appropriation Doctrine:

First in time is first in right.

Harmon Doctrine:

A right to appropriate all the waters of this stream

for purposes of irrigating its soil and making more

valuable it own territory.

Waters subject to Water Rights

Surface Water

Fresh

Brackish

Salt (?)

SubsurfaceWater

Fresh Water Confined aquifer

Unconfined aquifer

Water Rights can include

the right to use Ice

Reservation of Water

A reservation of water (sometimes called an in-

stream flow reservation) is a water right which

has the purpose of leaving a specific flow or

level of water reserved in a river, lake or water

bodies for the purpose described.

Types of Purpose:

For the protection of fish and wildlife habitat,

migration and propagation.

For the purposes of navigation and transportation.

For park and recreational purposes.

For sanitary or water quality purposes.

Ways to establish reservations

By application for a water right of unappropriated or

unreserved water by state agency or private parties.

By purchase or gift of private water rights to a state

agency.

By statutory authority of a state agency established to

set reservation quantities.

Conclusions:

Access and Water Law is often complicated and inter-related.

Multiple jurisdictions are usually involved in a large water system.

Understanding the law and principles of water allocation and use in the jurisdictions in which the manager is operating is critical to successful management.

Sources:

http://legal-dictionary.thefreedictionary.com

http://en.wikipedia.org/wiki/Prior-appropriation_water_rights

http://en.wikipedia.org/wiki/Riparian_water_rights

http://ijc.org/en_/Transboundary_Basins

http://ibwc.state.gov/home.html

Waters and Water Rights, Volumes 1 – 6 , Robert Emmet Clark, Editor in Chief

Allen Smith Company, Indianapolis, Indiana

Water Law, William Goldfarb, Buttersworth Publishers, Stoneham, MA

The Law of International Water Courses, Non-Navigational Uses, Stephen C. McCaffrey

Oxford University Press, Oxford, NY

Shore and Sea Boundaries, Volumes 1-3 Aaron L. Shalowitz, US Dept of Commerce, Coast and Geodetic Survey

US Government Printing Office, Washington, DC.

Legal Cases as cited and State Statutes as Published, including but not limited to: PPL Montana v Montana 132 S.Ct. 1215 (2012).

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473 (1988)

Arizona v California, 373 U.S. 546, 587, 10 L. Ed 2nd 542, 570, 83 Sup. Ct 1468, 1491 (1963)

Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 452 (1892).

The Daniel Bll, 77 U.S. (10 Wall) 557 19 L. Ed. 999 (1870)