Water Law Reform in West Virginia- The Broader Context

THE END OF THE RIVER MANIPULATION ERA BUT NOT OF

The growing demand for water in the United States is leading to a renewed interest in water law reform, as competition for this vital resource now occurs within a transformed political and legal landscape This evolution reflects a more complex understanding of water resources, coinciding with a decline in the traditional federal role in large-scale public works and the emergence of new demands This section explores four key changes in water policy, both domestically and globally, that will impact future water allocation decisions and outlines their significant implications.

The New River Use Paradigm: Fish Parity

Today, two contrasting perspectives on rivers exist: the managed river and the natural or "normative" river From the 19th century to the mid-20th century, the prevailing belief was that rivers were flawed representations of nature that required human intervention for improvement.

During the "Big Dam Era," navigation impairments were removed, and rivers were dammed for irrigation, municipal supply, flood control, and hydroelectric power generation, leading to the commodification of water resources This approach yielded significant local and national benefits but also incurred considerable environmental and social costs In response, the environmental movement prompted a thorough evaluation of these costs Consequently, U.S water policy is gradually shifting from the twentieth-century model of multi-purpose development, which altered natural river flows, to a newer, albeit less defined, paradigm focused on sustainable water use and the preservation of natural river hydrographs.

24 See generally Jack A Stanford et al., A General Protocol for Restoration of Regulated Rivers, 12 REGULATED RIVERS: RES & MGMT 391 (1996).

25 West Virginia still has considerable undeveloped hydroelectric potential ALISON M.

CONNER & JAMES E FRANCFORT, U.S DEP'T OF ENERGY, U.S HYDROPOWER RESOURCE ASSESSMENT FOR WEST VIRGINIA (1998), available at http://hydropower.id.doe.gov/ resourceassessment/wv/wv.pdf.

26 The leading articulation of this thesis is WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND (1983).

27 See RICHARD N.L ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY 189-91 (1999)

The rise and fall of Western dams and reclamation projects have been extensively analyzed from both political and legal perspectives, highlighting their impact on water management and environmental policy Key studies, such as Chris Bromley's work in the University of Denver Water Law Review and Christine A Klein's article in the Oregon Law Review, delve into the complex relationship between dams and democratic governance, emphasizing the need for sustainable water resource management.

2004] Tarlock: Water Law Reform in West Virginia: The Broader Context

The paradigm shift in our understanding of rivers is driven by scientific, philosophical, and economic factors Influenced by the environmental movement, we now recognize rivers as essential components of natural landscapes that offer valuable ecosystem services, in addition to their traditional roles in water supply and hydroelectric power As noted by the renowned American geographer Gilbert White, this new perspective emphasizes the importance of rivers in sustaining ecological balance.

In the 1990s, global perspectives on Earth evolved, viewing it not just as a planet to be explored or developed for immediate benefit, but as a complex entity requiring protection from various threats This multifaceted understanding reflects the diverse cultural interpretations of our world, emphasizing the need for a holistic approach to environmental and human well-being.

recognize a commitment to care for it in perpetuity 3 °

Rivers are increasingly recognized as vital ecosystems and natural wonders that offer beauty and recreational opportunities The 1968 passage of the Wild and Scenic Rivers Act marked a significant shift away from the Big Dam Era, preserving many prime dam sites and promoting a new focus on resource stewardship This legislation underscores the economic importance of free-flowing rivers, highlighting their value beyond mere water management.

The Big Dam Era primarily benefited cities and farmers by providing enhanced water supplies and flood protection, while negatively impacting fish and aquatic ecosystems The construction of dams, diversions, and levees led to significant habitat destruction for fish, which was largely overlooked in the pursuit of progress Conservation efforts focused on creating refuges adjacent to these altered environments, often neglecting the importance of preserving the river's natural hydrograph.

29 See NAT'L RESEARCH COUNCIL, THE MISSOURI RIVER ECOSYSTEM: EXPLORING THE

PROSPECTS FOR RECOVERY 58-62 (2002), for a description of the ecosystem benefits provided by the flood pulses on the Missouri prior to the construction of six mainstem dams from the 1940s through the 1960s.

30 Gilbert F White, Reflections on Changing Perceptions of the Earth, 19 ANN REV ENERGY

The Act establishes a three-tier classification system for rivers, categorizing them as wild, scenic, or recreational (16 U.S.C § 1273(b)) As of 2003, there are 161 rivers designated under this system, with West Virginia's sole designated river being the Bluestone, which extends from two miles upstream of the Summers and Mercer county lines to the maximum summer pool of Bluestone Lake (16 U.S.C.A 1274(a)(65)).

32 See JOHN PASSMORE, MAN'S RESPONSIBILITY FOR NATURE 32 (1974) (identifying stewardship as the opposite of nature domination and arguing that it demands "an active concern for the earth's fertility").

[Vol 106 West Virginia Law Review, Vol 106, Iss 3 [2004], Art 4

WA TER LA W REFORM IN WEST VIRGINIA cent to a river- and the construction of fish ladders, 345 35 rather than habitat conservation.

The newer vision of ecological integrity emphasizes the need to harmonize human activities with the natural sustainability of river systems, reflecting a complex understanding of human roles in these ecosystems It prioritizes restoration efforts, recognizing that even modified rivers are dynamic ecosystems that provide essential functions, including consumptive uses and ecosystem services This approach transcends simple river preservation, advocating for environmentally sustainable development that balances consumptive use with the conservation of species and the vital ecosystem services provided by rivers and lakes, which may often hold greater value than traditional water uses.

The "mitigation" approach has historically marginalized environmental values, a legacy that persists today Wildlife refuges possess the ability to assert water rights for their sustenance, yet claiming these rights proves challenging In 1962, the Supreme Court recognized that federal wildlife refuges could claim implied federal non-Indian reserved rights (Arizona v California, 373 U.S 546) However, the Court later restricted the federal government's authority to assert these rights, mandating proof that water denial would undermine the refuge's primary purpose (United States v New Mexico, 438 U.S 696) Furthermore, when the federal government sought reserved rights for a refuge in the Snake River, the Idaho Supreme Court deemed the argument that President Franklin D Roosevelt intended to support the refuge with federal water as "inconceivable."

Reclamation projects ensure adequate water supply for the islands without relying on federal reserved rights, barring catastrophic droughts or natural disasters that could deplete the river It is unlikely that President Roosevelt, during the dust bowl years of 1937, intended to prioritize waterfowl or migratory birds over the needs of people.

United States v Idaho (In re Srba Case No 39576), 23 P.3d 118, 128-29 (Idaho 2001).

The authority to create fish passages around federal projects originated in 1888, with the Fish and Wildlife Coordination Act of 1934 serving as the primary legislation, codified in 16 U.S.C § 661-666c (2000) This act plays a crucial role in ensuring the protection and management of aquatic wildlife in relation to water resource development.

36 This concept was endorsed in W WATER POL'Y REV ADVISORY COMM'N, WATER IN THE

WEST: CHALLENGE FOR THE NEXT CENTURY 3-2 to -3 (1998) [hereinafter WATER IN THE WEST].

The Klamath Basin in southern Oregon has experienced significant conflict between the need to preserve endangered species and the interests of a traditional irrigation community that faces economic challenges This clash highlights the complexities of balancing ecological preservation with the livelihoods of local farmers.

20041 Tarlock: Water Law Reform in West Virginia: The Broader Context

Federal and state environmental laws are gradually addressing the neglect of aquatic ecosystems, though the approach remains fragmented and inadequate The Endangered Species Act (ESA) serves as the primary federal regulation governing water use, capable of overriding existing water rights, yet it lacks comprehensive biodiversity protections Efforts to stabilize and restore these ecosystems necessitate maintaining water levels, particularly in downstream areas Ultimately, states hold the main responsibility for establishing and managing water rights, facing increasing demands to allocate more water for ecosystem preservation This shift may limit cities' traditional practices of dewatering watersheds, exert pressure on current water entitlement holders, and intensify the need for proactive state water management strategies.

The Decline and Decentering of Federal Power

Throughout much of the last century, the federal government shielded water rights holders and states from making difficult decisions regarding water usage In the twentieth century, while the federal government developed extensive water projects, it largely respected state allocation laws This arrangement benefited states by allowing them to manage water use without the pressure of competition among users, thanks to the support of multi-purpose federal reservoirs, which alleviated concerns for all but the driest states.

Until the 1970s, federal and state water agencies, along with major water users, dominated water management, largely influenced by the political dynamics of distribution, particularly in states like California This led to the "pure doctrine of river basin management," advocating for comprehensive federal projects on major rivers to enhance regional development Advocates believed that large-scale water resource initiatives were essential for efficient water use and regional growth However, the economic rationale behind this approach has faced skepticism, and today, water resource development lacks the bipartisan political support it once enjoyed, despite the continued advocacy from proponents of the reclamation era.

The party is now over The era of large-scale dam building appears to be over 39 Some new, "smarter" storage projects will be built, but they will be

Holly Doremus highlights the importance of the Endangered Species Act (ESA) in managing water resources, emphasizing that it may necessitate the allocation of water to streams to protect endangered species during critical summer months when irrigation and municipal water demands peak.

39 E.g., JOHN R FERRELL, BIG DAM ERA: A LEGISLATIVE AND INSTITUTIONAL HISTORY OF THE

Water law reform in West Virginia is shifting towards smaller, more environmentally friendly solutions The United States is transitioning from large dam constructions to a focus on reallocating existing water supplies and sustainably managing and restoring previously altered aquatic ecosystems.

In the future, water resources policy will play a crucial role in advancing environmental and social equity While traditional government functions like flood control and supply augmentation remain vital, they no longer solely define the interest in water resource management Although these changes may not immediately affect state water allocation laws, they challenge existing assumptions and will ultimately push states to adopt a more proactive approach in water governance.

Federal funding and regulatory support for water development have been declining for over thirty years, affecting both Republican and Democratic administrations This reduction in fiscal resources has led to a more dynamic water policy landscape, where power is decentralized Traditional institutions responsible for managing water resources are struggling to balance competing demands amid climate variability As urban areas expand, they increasingly clash with advocates for aquatic ecosystem restoration and agricultural irrigators who are trying to preserve their way of life Consequently, diverse stakeholders are now seeking involvement in the negotiation processes surrounding water allocation This shift has rendered outdated static water plans, often created by engineers as mere project proposals, obsolete State water planning must evolve to address these complex, multifaceted challenges.

PICK-SLOAN MISSOURI BASIN PROGRAM 147-71 (1993) (noting that the focus on Missouri has shifted from new project construction to long-term management of existing infrastructure).

The report by the World Commission on Dams outlines significant legal implications for water management in the United States, as discussed in A Dan Tarlock's analysis In his article, "What the Report of the World Commission on Dams Might Mean for the United States Water Community," published in the University of Denver Water Law Review, Tarlock examines how these findings could influence local water policies and practices.

41 See WATER IN THE WEST, supra note 36, at 3-51 to -52.

42 David H Getches, The Metamorphosis of Western Water Policy: Have Federal Laws and Local Decisions Eclipsed the States' Role?, 20 STAN ENVTL L.J 3, 59-69 (2001).

43 See Christopher H Schroeder, Environmental Law, Congress and the Court's New Federal- ism Doctrine, 78 IND L.J 413 (2003).

Forty-four states, including New Mexico, are grappling with the critical issue of whether their limited water supplies will hinder future growth This challenge highlights the ongoing debate about water supply and urban development in water-stressed regions.

WEST VIRGINIA LA W REVIEW more open, multi-objective process that considers the trade-offs among alternative uses.

Federal agencies are shifting their focus from project construction to management, with the Bureau of Reclamation officially transitioning from water development to water management, as reflected in its budget priorities Similarly, the United States Army Corps of Engineers is navigating a complex transition, aiming to play a significant role in restoring the aquatic ecosystems it once modified While the federal government continues to manage the infrastructure established in the twentieth century, its ability to increase water supplies and control allocation is diminishing Moving forward, federal water agencies will act more as project managers and stakeholders in multi-party negotiations, rather than as primary policymakers and distributors of federal resources.

The federal government's diminishing role in water resource management is exemplified by the Department of Interior's Water 2025 initiative, which addresses the challenges posed by growing populations competing for limited water supplies and the conflicts between endangered species and agricultural needs This strategy outlines six principles for future water management, emphasizing enhanced conservation, increased use of water markets, and improved treatment technologies Notably, it lacks commitments to major new supply projects and promotes a limited federal involvement, thereby shifting greater responsibilities onto states to manage their water resources independently, without the federal support previously available.

45 See David H Getches, Water Planning: Untapped Opportunity for the Western States, 9 J

46 See BUREAU OF RECLAMATION, U.S DEP'T OF THE INTERIOR, RECLAMATION'S STRATEGIC

PLAN: A LONG-TERM FRAMEWORK FOR WATER RESOURCES MANAGEMENT, DEVELOPMENT AND PROTECTION (1992).

47 See NAT'L RESEARCH COUNCIL, MANAGING THE NATIONAL WATER RESOURCES INFRASTRUCTURE (2004) (on file with law review).

48 BUREAU OF RECLAMATION, U.S DEP'T OF THE INTERIOR, WATER 2025: PREVENTING CRISES

AND CONFLICT IN THE WEST, available at http://www.doi.gov/water2025 (last visited Apr 1, 2004).

WA TER LA W REFORM IN WEST VIRGINIA

Growing Cities, Fewer New Reservoirs

THE COMMON-LAW LEGACY OF EASTERN WATER LAW

Water lawyers primarily focus on the competition for scarce resources, which is why eastern water issues have not garnered as much attention While all states grapple with competing demands and the risks of variable or overused water supplies, these challenges are particularly pronounced in western states As a result, western states have established "hard" property rights and robust regulatory frameworks to ensure equitable access to limited water resources and mitigate the risks of scarcity In contrast, eastern states have experienced these issues in a milder form, leading to the development of "soft" property rights and less comprehensive regulatory systems Consequently, while western states adapted their water laws to address their harsh climate, eastern states have had the luxury of contemplating the necessity of water law reform at a more leisurely pace.

Reform in the eastern states has been a complex process, shaped by a legacy of limited government involvement in water use established in the nineteenth century The adoption of common law riparian rights led to court-managed water allocation, fostering an expectation of water as a common resource Interestingly, reform efforts are more feasible in the East compared to the West, where entrenched entitlements complicate change The East benefits from a longstanding tradition that prioritizes public interest over private use, asserting that water rights do not become constitutionally vested until actual usage occurs.

The Nineteenth Century Quasi-Laissez Faire Legacy

In the United States, state interest in water use has remained steady yet often subdued since the mid-nineteenth century Historically, Eastern water law has been based on the belief that a system of judicially established entitlements for private and public water use benefits society by promoting investment in water-dependent activities This emphasis on private entitlements is a natural consequence of this legal framework.

The transition from the common law of prior appropriation to a permit system for unused water rights has largely been upheld against takings challenges, as most claimants ultimately gain more secure rights A prolonged period of non-use often undermines any legitimate expectations of a water right Relevant cases include *State Dep't of Ecology v Acquavella*, which determined that a final adjudication decree prevents unclaimed riparian rights from being revived, and *In re Deadman Creek Drainage Basin*, which ruled that the forfeiture of riparian rights does not constitute a taking However, in *Franco-American Charolaise, Ltd v Okla Water Res Bd.*, the court found that the legislature cannot constitutionally terminate unexercised riparian rights.

Property Rights and the Future of Water Law, 61 U COLO L REV 257 (1990).

Water law reform in West Virginia reflects the historical significance of water in eighteenth and nineteenth century America, emphasizing a preference for private development over public initiatives Until the late nineteenth century, primary water uses were largely non-consumptive, focusing on navigation and small-scale hydropower Initially, state involvement was crucial to overcome common law obstacles that hindered private investment in mill power; however, as these barriers were addressed, the necessity for state intervention decreased.

Beginning in the eighteenth century, the limitations on private choice were established to ensure efficient water use and equitable distribution of its benefits across society The common law of riparian rights emerged during a period when water's primary value was in powering mills, making the natural flow of rivers a crucial aspect of these rights Initially, this common law favored a natural flow or restricted use principle, mandating that all riparians, except those at the river's mouth, maintain the current for the benefit of other riparian users.

Historically, many states shifted from the natural flow rule to a reasonable use rule to facilitate the necessary withdrawals and retentions for larger mills, irrigation, and municipal and industrial purposes The primary aim of water law reform in the eighteenth and nineteenth centuries was to maintain common law while removing inefficient and undesirable elements The natural flow rule, which restricted impoundments and alterations to a river's hydrograph, hindered development and progress in water resource management.

65 See DONALD J PISANI, To RECLAIM A DIVIDED WEST: WATER, LAW, AND PUBLIC POLICY

1848-1902 (1992); Donald J Pisani, Enterprise and Equity: A Critique of Western Water Law in the Nineteenth Century, 18 W HIST Q 15 (1987).

66 For an important counter example, see generally John F Hart, Property Rights, Costs, and

Welfare: Delaware Water Mill Legislation, 27 J LEGAL STUD 455 (1998), discussing state's protection of existing mills at expense of more efficient mills that promoted consumer welfare.

The legacy of flowage rights continues to influence property disputes today, as demonstrated in the case of Dorey v Estate of Spicer, 715 A.2d 182 (Me 1998) In this case, the claimant argued for flowage rights obtained through the acquisition of several parcels adjacent to the original mill property, aiming to flood areas of a pond that is partially sustained by an existing dam.

1839 sawmill Id at 183 The court held that flowage rights arose under the Maine Mill Act of

In 1821, inspired by the Massachusetts Mill Act of 1796, a claimant contended that flowage rights constituted a distinct type of easement appurtenant that could be separated from the original site However, since the original mill was no longer operational and the claimant did not possess the land where it once stood, the court ruled that any existing flowage rights remain tied to the original sawmill lots and cannot exist independently from them.

68 In recent decades, the natural theory was occasionally asserted to claim recreational and instream flow rights for aesthetic enjoyment See Collens v New Canaan Water Co., 234 A.2d

825 (Conn 1967) Connecticut abandoned the natural flow theory by statute in 1982, in favor of regulated riparianism See City of Waterbury v Town of Wash., 800 A.2d 1102, 1149 (Conn. 2002).

69 See MORTON HOROWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860, at 35-37 (1977).

West Virginia has enacted Mill Acts to promote industrial development, empowering riparians to condemn flowage easements and establishing a priority regime for water use The common law has evolved to permit consumptive water use away from river corridors, provided it does not significantly harm other users While West Virginia is traditionally seen as a reasonable use state, recent cases primarily focus on surface drainage rights rather than consumptive water use In 2003, the state initiated changes to common law by forming a water policy commission and, in 2004, implemented a progressive water registration and planning statute.

California serves as a key example of the evolving debate over riparian rights, particularly during the late nineteenth and early twentieth centuries As the state's irrigation economy expanded, it posed challenges to industrial and urban growth The state's courts fluctuated between the reasonable use and natural flow doctrines before ultimately embracing the natural flow theory.

The Mill Acts, originating in early colonial America, represented an early application of eminent domain, enabling private parties to pursue public objectives These Acts permitted riparian landowners to construct dams on rivers to generate power for mills, and in certain instances, they authorized the condemnation of riparian land by private entities.

Upstream riparians faced damages due to loss of current or flooding, while downstream riparians who experienced power loss were entitled to statutory damages, as common-law remedies were preempted (Fiske v Framingham Mfg Co., 1831) Virginia and West Virginia adopted Mill Acts primarily for dam licensing to protect navigation and fish passage, rather than as compensation mechanisms, reflecting a historical legacy of public rights in watercourses.

Publicum " of the English Crown, 101 W VA L REV 407, 441-45 (1998).

71 See Hart, supra note 66, at 461-69.

In 1994, Florida established a commission to evaluate its water management laws, which included liberal rules for transbasin transfers Water-rich counties influenced the commission to suggest that local water sources should be prioritized As a result, before any transbasin diversion could be approved, the responsible water management district would need to assess the proximity of the water source to the intended destination and the availability of alternative water sources This recommendation has been described as a "partial revival of the common-law rule" that historically restricted the diversion of water for use on nonriparian lands.

73 NAT'L WATER COMM'N, A SUMMARY-DIGEST OF STATE WATER LAws 789 (Richard Dewsnup & Dallin W Jensen eds., 1973); Marlyn E Lugar, Water Law in West Virginia, 66 W.

74 The reasonable use rule for surface drainage was adopted in Morris Associates, Inc v

Priddy, 383 S.E.2d 770 (W Va 1989) See also Graham v Beverage, 566 S.E.2d 603 (W Va. 2002); Whorton v Malone, 549 S.E.2d 57 (W Va 2001).

[Vol 106West Virginia Law Review, Vol 106, Iss 3 [2004], Art 4

Water law reform in West Virginia has been influenced by concerns over the natural flow theory, which utilities feared would hinder dam and reservoir construction, potentially leading to monopolization of water resources by downstream users In response, California voters amended their constitution to adopt the reasonable use doctrine, which supplanted the natural flow doctrine and permitted the appropriation of surplus water for storage and use beyond the watershed While the survival of the natural flow theory is now questionable, the United States Forest Service has been recognized as a riparian landowner with instream flow rights in California.

In the nineteenth century, the federal government's involvement in water use was minimal, primarily focused on navigation improvements However, the twentieth century saw a significant expansion of federal roles due to the challenges posed by floods and the inadequacies of state and private efforts in managing irrigation This led to the establishment of federal reclamation programs and the construction of flood control infrastructure across the nation Despite this expansion, federal actions had limited influence on state water laws, as irrigation and flood control projects operated within the framework of existing state water rights The prevailing belief was that federal support would enhance the public interest in water use During the dam-building era, which continued until the late 1960s, the principle that private decisions should align with social utility remained a key tenet of water law, although it was often overshadowed by the effectiveness of dams and reservoirs in resolving conflicts and relieving states from difficult decisions regarding water usage.

The Common-Law Legacy

Inchoate R ights

Riparian rights are often considered inchoate and inherently unstable, as they depend on land ownership adjacent to watercourses and do not require active use These rights can be exercised at any time, potentially displacing prior uses Measuring riparian rights is complex due to their correlative nature, meaning the entitlement to water is influenced by the usage of other riparians, necessitating consideration of the impact on fellow users Since the nineteenth century, traditional property rules that assumed harm from any reduction in water flow have shifted to tort-like rules that assess the reasonableness of competing uses, with relief contingent on proving substantial injury Consequently, the concept of reasonableness is contextual, becoming problematic only when another user experiences significant harm Courts' balancing tests in these cases are rarely applied, often resulting in unfair outcomes, as demonstrated when the California Supreme Court permitted a dam to eliminate a downstream gravel business, citing lack of public policy justification.

The situation with respect to groundwater is worse because the common-law rules all encourage unlimited capture Most states replaced the "Eng-

Riparian rights allow for the potential restriction of upstream water use to safeguard the future needs of downstream users, as highlighted in the case Pyle v Gilbert However, the existence of dual riparian-appropriation systems limits the practical application of this concept, as seen in In re Water of Long Valley Creek.

Sys., 599 P.2d 656 (Cal 1979) The natural flow has generally been replaced by regulated riparianism.

The case of Edmondson v Edwards, Ill S.W.3d 906 (Mo Ct App 2003) highlights the significance of injury in legal disputes involving water rights The court upheld an injunction against a recreational dam that disrupted a downstream riparian's access to a stream essential for livestock watering The ruling emphasized that the defendants' intended use of the stream was unreasonable, as it diverted the natural watercourse on their property to the detriment of its established use on the plaintiff's land.

84 Joslin v Main Mun Water Dist., 429 P.2d 889, 894 (Cal 1967) (emphasis in original).

West Virginia's water law reform introduces a shift from the traditional "English rule," which permits unlimited water pumping, to the "American" reasonable use rule This new framework theoretically restricts water use to land directly above an aquifer; however, it allows cities to transport water away, provided they compensate smaller users affected by dewatering The Restatement (Second) of Torts § 858 further modifies this reasonable use rule by mandating that larger private pumpers must compensate smaller users when significant reductions in the water table occur.

W ater Tied to Land

The common law of water rights is primarily a land-based allocation system, where riparian rights are defined as natural usufructuary property rights allowing landowners adjacent to a watercourse to utilize its flow These rights are exclusive to those who own land that directly borders a stream, emphasizing that in situ uses of water are the standard, while ex situ uses are typically exceptions, if allowed at all A notable case from 1913 in West Virginia established that using water on non-riparian land was inherently unreasonable, even in the absence of proven damage to the riparian landowner.

In 1905, West Virginia established the groundwater reasonable use rule, distinct from the surface water reasonable use rule, as seen in Pence v Carney, 52 S.E 702 (W Va 1905) This rule allows overlying pumpers to withdraw groundwater without limits, provided their actions are non-malicious However, if groundwater is extracted for use on non-overlying land, it may lead to either an injunction or the requirement to compensate the overlying pumpers.

86 Higday v Nickolaus, 469 S.W 2d 859 (Mo Ct App 1971).

87 See, e.g., Cline v Am Aggregates Corp., 474 N.E.2d 324 (Ohio 1984) The Restatement provides in pertinent part as follows:

A landowner or their grantee who extracts groundwater for beneficial use is generally not liable for interfering with another's water usage, except under specific circumstances.

(a) the withdrawal of ground water unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure,

(b) the withdrawal of ground water exceeds the proprietor's reasonable share of the annual supply or total store of ground water, or

(c) the withdrawal of the ground water has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water.

88 NAT'L WATER COMM'N, supra note 74, at 32.

89 The leading West Virginia case is Roberts v Martin, 77 S.E 535, 536 (W Va 1913), de- claring that the right exists jure naturae as an incident to ownership of a parcel of the land.

90 See Lynda Butler, Allocating Consumptive Water Rights in a Riparian Jurisdiction: Defin- ing the Relationship Between Public and Private Interests, 47 U PITT L REV 95 (1987).

The in situ preference, supported by the watershed rule, prioritizes water use within a stream's watershed, favoring local users over those outside it Historically, this rule restricted usage to riparians within the watershed, with courts differentiating between riparian and non-riparian uses Non-riparian uses outside the watershed could be prohibited without proving actual harm However, the prohibition preventing riparians from reducing the natural flow of a stream to the detriment of downstream users has weakened over time, as demonstrated by significant Supreme Court cases from the New Deal era, such as Iowa Hydro-Electric Cooperative v.

The Federal Power Commission determined that the Federal Power Act implicitly overrides state water laws, preventing Iowa from enforcing a watershed protection statute against an FPC licensee's trans-watershed diversion Additionally, the case of Connecticut v Massachusetts clarified that there is no absolute watershed rule within the framework of interstate equitable apportionment Currently, non-riparian uses are typically restricted only when they cause harm to riparian rights.

West Virginia: The Merits of Underdevelopment

West Virginia's water law is characterized by its underdevelopment and reliance on common law principles derived from other states, aligning with general riparian rights The state's case law has remained largely static, which is often seen as a drawback since legal uncertainty can hinder investment in water-dependent activities However, this lack of legal development can also be advantageous; the absence of established investment-backed expectations allows for greater flexibility in redefining water entitlements through a permit system Additionally, without firm existing entitlements, the state can more easily allocate water resources between consumptive and non-consumptive uses.

In the case of 92 328 U.S 152 (1946), the outcome was anticipated by the earlier ruling in Oklahoma ex rel Phillips v Guy F Atkinson Co., 313 U.S 508 (1941) This precedent established that Congress has the authority to create a multi-purpose reservoir that may provide greater benefits to downstream states compared to those upstream.

94 See, e.g., NAT'L WATER COMM'N, supra note 73, at 783; Lugar, supra note 73.

In 1964, Professor Lugar noted that the West Virginia law regarding artificial watercourses was "not settled." This uncertainty was highlighted in a 1991 Supreme Court ruling, which affirmed that the littoral owner of 98% of an artificial lake had the right to exclude the owner of the remaining 2% from using their portion of the lake (Ours v Grace Properties, Inc., 412 S.E.2d 490, W Va 1991).

Drought and Water Law Reform

The User Comm unity

The uncertainty surrounding riparian rights highlights the necessity of a permit system for water users Predicting the exact water entitlement for each riparian owner is challenging, and groundwater rights often lack clear regulations, leading to further ambiguity In contrast, a permit system solidifies correlative rights, allowing users to withdraw water while facing potential legal challenges only after usage This system offers greater security against future claims that could limit existing water use and clarifies the drought risks for permit holders While the West has embraced the advantages and constitutionality of permit systems, the East remains divided due to minimal risks to common-law water rights and high compliance costs, resulting in resistance from major user groups like agriculture.

The State Interest

A permit system offers states four key benefits: it provides essential information regarding alternative water uses, enables control over those uses, facilitates the balancing of supply and demand to prevent the over-extraction of stressed water resources, and promotes sustainable management of water supplies.

States have the authority to determine the allocation of their waters between consumptive use and heritage conservation Effective state control encompasses monitoring, planning, and management of water resources A foundational aspect of rational water planning is the collection of accurate data regarding the state's average annual water supply and the levels of consumptive versus non-consumptive use In some cases, a permit system may suffice for managing water use, while a more rigorous approach involves subjecting new uses and significant reallocations to public interest reviews This method provides a more equitable framework for asserting state interests compared to the ad hoc lawsuits based on the California-Hawaii public trust doctrine.

The public trust doctrine hovers over many water rights because it permits a court to displace prior uses Some states, notably California1 0 7 and Ha-

105 See Ohio Oil Co v Indiana, 177 U.S 190 (1900).

106 See Farm Inv Co v Carpenter, 61 P 258 (Wyo 1900) (finding the state permit system was not an unconstitutional delegation of judicial power to a non-judicial agency).

107 See Nat'l Audubon Soc'y v Superior Court, 658 P.2d 709 (Cal 1983).

Water law reform in West Virginia emphasizes that vested water rights are subject to the public trust doctrine, allowing courts to balance environmental and consumptive water use values This judicial approach can require that consumptive uses of navigable waters prioritize ecosystem maintenance, particularly when administrative balancing conflicts with trust obligations Notable cases, such as the Mono Lake case, demonstrated this principle by reducing water diversions by the Los Angeles Department of Water and Power, while Hawaii similarly limited Honolulu's water use from an abandoned sugar ditch.

A robust permit system enhances state control over transboundary waters, although it cannot fully ensure such control West Virginia, as a headwaters state, encompasses seven river basins—the Kanawha, Monongahela, Potomac, Guyandotte, Big Sandy, Tug Fork, and Ohio—that flow into five neighboring states However, states possess only limited authority over waters that originate or traverse their borders, as interstate rivers must be shared under the law of equitable apportionment Each state holds a right to utilize a portion of these waters, but interstate rights remain undefined until quantified by a Supreme Court decree, an interstate compact, or Congressional action While equitable and compact apportionments are regulated by federal law, the Supreme Court generally respects existing uses Therefore, a strong and effective state regulatory program can help clarify a state's equitable share, although this does not guarantee recognition of the state's claim by the Supreme Court or Congress.

Implementing a permit system can strengthen a state's defense against challenges related to the Dormant Commerce Clause concerning water allocation The Supreme Court has recognized water rights as components of interstate commerce, making them subject to the Dormant Commerce Clause In the case of Sporhase v Nebraska ex rel Douglas, the Court ruled that any law that outright bans all interstate water transfers is invalid.

108 In re Water Use Permit Applications, 9 P.3d 409 (Haw 2000) (regarding sugar irrigation ditches in Hawaii) See CAROL WILCOX, SUGAR WATER: HAWAII'S PLANTATION DITCHES 98-113

In 1976, the Waiahole Ditch's history was documented, highlighting concerns raised by David Callies, a law professor at the University of Hawaii He argues that a recent administrative decision significantly threatens urban water suppliers in Hawaii by prioritizing aquatic ecosystems over domestic water needs For further insights, refer to Callies and Breemer's analysis of legal and policy trends in takings law, published in the Valparaiso University Law Review.

109 See A DAN TARLOCK, ET AL., WATER RESOURCE MANAGEMENT ch 10 (5th ed 2002).

110 Sporhase v Nebraska ex rel Douglas, 458 U.S 941 (1982).

El Paso, Texas sought a permit to export groundwater from New Mexico, but the request was denied due to state laws prohibiting out-of-state water transfers In defense of its legislation's constitutionality, New Mexico presented a complex "conservation" argument, referencing ambiguous language in Justice Stevens' opinion in Sporhase, which implied that states might reserve water in situations deemed necessary.

New Mexico asserted its right to retain all water within its borders to safeguard the community value for future generations, despite the absence of immediate shortages in the state.

The West Virginia Law Review indicates that while states can prioritize in-state users over out-of-state users, this preference is not inherently invalid To justify such a preference, a state must provide a robust rationale backed by a comprehensive conservation strategy.

Why Can't the East Be More Like the West?

Western water law is often seen as a model for reforming eastern water law, despite historical perceptions of the West as inferior The West's extensive experience with water allocation has fostered a belief in its exclusive expertise in water management, viewing other legal systems as inadequate Eastern water law is criticized for lacking secure property rights due to short-term permits and the unpredictable nature of water availability, contrasting sharply with the priority rights established in Western law Ultimately, the doctrine of prior appropriation is regarded as the only legitimate legal framework for managing water resources, highlighting the differing perspectives on water as both a vital resource and an economic commodity.

New Mexico revised its laws to allow comprehensive public interest evaluations for both intra and interstate water appropriation and transfer applications, acknowledging that no "demonstrably arid" state can fulfill the stringent criteria previously established This change is reflected in N.M STAT ANN §§ 72-6-3 and 72-12B-1.

In the case of City of El Paso v Reynolds, 597 F Supp 694 (D.N.M 1984), El Paso challenged a federal district court decision that affirmed New Mexico's right to prioritize its water resources, emphasizing the importance of state sovereignty The court rejected El Paso's concerns about potential water shortages, supporting New Mexico's stance on safeguarding community water values It clarified that the necessity defense proposed by Justice Stevens did not align with the conservation of water for future needs, and deemed it constitutional for New Mexico to determine if water transfers could harm public welfare Ultimately, the court recognized New Mexico's authority to limit water exports proactively, rather than waiting for shortages to occur.

El Paso's legal victory was based on the argument that the statute unfairly discriminated against interstate commerce, as the court ruled that states cannot impose the entire burden of conservation on interstate commerce The court found that applying conservation standards solely to out-of-state transfers created discrimination against out-of-state users Ultimately, New Mexico rejected El Paso's application due to insufficient evidence of water need By 1989, El Paso began to shift its stance on relying solely on Hueco Bolson water, moving towards a more advanced water supply strategy that incorporates the reallocation of local agricultural resources.

A Dan Tarlock & D'arcy Alan Frownfelter, State Groundwater Sovereignty After Sporhase: The Case of the Hueco Bolson, 43 OKLA L REV 27, 35-44 (1990) In 1991, the litigation ended when

El Paso withdrew its state applications TARLOCK ET AL., supra note 109, at 101.

113 See, e.g., Richard Ausness, Water Rights Administration in the East: A Program for Re- form, 24 WM & MARY L REV 547 (1983).

Water law reform in West Virginia could be achieved by adopting prior appropriation, a system that has faced resistance in the East Despite Mississippi's brief conversion in 1956 and subsequent reversion in 1985, other states have only explored the concept without full commitment This hesitation stems from a longstanding perception among influential Eastern figures, who view prior appropriation as a problematic or outdated approach to water management, a belief that persists today.

Permit systems highlight the conflict between water users seeking secure and defined entitlements and the state, which considers broader interests Historically, the West prioritizes security, while the East has not felt the same urgency to address this tension, believing the West has leaned excessively towards security The core of the ongoing debate regarding Eastern water law reform centers on finding the right balance between individual security and the state's broader interests, with significant differences persisting between Western and Eastern perspectives on this issue.

In the 1960s and 1970s, two influential figures in water law, Dean Frank Maloney of the University of Florida and Dean Frank J Trelease of the University of Wyoming, embodied the ongoing debate surrounding water allocation Dean Maloney criticized the prior appropriation system as inefficient and unfair, proposing a Model Water Use Code that Florida adopted in the 1972 Water Resources Act He argued that excessive water was allocated to low-value agricultural uses, which hindered environmental considerations In contrast, Dean Trelease vehemently opposed Maloney's approach, labeling it a shift from established common law to administrative uncertainties without tangible public benefits.

114 MISS CODE ANN §§ 51-3-1 to-55 (Lexis 2003).

115 See Joseph W Dellapenna, The Law of Water Allocation in the Southeastern States at the

Opening of the Twenty-First Century, 25 U ARK LITTLE ROCK L REV 8, 21 (2002).

In 1972, Frank Maloney and colleagues presented a Model Water Code, highlighting Florida's choice for a regional regulatory and planning framework instead of a statewide approach This decision has prompted discussions about the need for stronger statewide leadership in Florida's water resources development, as noted by Charles R Fletcher in his 2002 article in the Journal of Land Use & Environmental Law.

117 Frank J Trelease, The Model Water Code, the Wise Administrator and the Goddam Bu- reaucrat, 14 NAT RESOURCES J 207 (1974).

The Restatement (Second) of Torts marked a significant battleground in the debate over flexible permits versus secure rights, particularly concerning water rights While water rights are often viewed as a subset of property law, they also intersect with tort law, leading to their inclusion in the Restatement of Torts The rationale for this inclusion lies in the nature of riparian rights cases, which typically involve damage claims related to the loss of long-standing water flows The common-law reasonable use rule, established in the Restatement (First) of Torts, allowed courts to conduct a comprehensive assessment of the social utilities associated with competing water uses.

Dean Trelease, appointed as an Associate Reporter for water rights, built upon previous scholarship to highlight that courts rarely engage in effective balancing of water rights, often resorting to arbitrary categorizations like natural versus artificial He emphasized that the protection of established uses is a critical variable, persuading the American Law Institute to adopt section 850A, which prioritizes the protection of existing water uses, land, investments, and enterprises in determining reasonableness Despite facing criticism for integrating prior appropriation into the common law of riparian rights, Trelease's approach shifted the focus of reasonableness from a vague balancing act to a consideration of the social and economic value of the plaintiff's use.

The relevance of the issue has diminished for three interconnected reasons Firstly, courts have not fully adopted the principle of safeguarding existing values, despite instances where it has been applied Additionally, a review of the Restatement (Second) of Torts and electronic databases reveals no cases where this principle has been utilized to protect established values.

119 RESTATEMENT OF TORTS §§ 851-853 (1938), reprinted in FRANK J TRELEASE, WATER LAW: CASES AND MATERIALS (1967).

120 J.H Beuscher, Appropriation Water Law Elements in Riparian Doctrine States, 10 BuFF L. REV 448 (1961).

121 The leading example remains Joslin v Marin Municipal Water District, 429 P.2d 889 (Cal.

In a 1967 ruling, it was determined that an upstream dam was not liable for reducing gravel flow downstream, as the use of the stream for gravel transportation was deemed unreasonable and lacked public policy support for gravel mining.

In the case of Kundel v Vir-Jo Farms, Inc., the Iowa Court of Appeals ruled that livestock watering constitutes a natural use of land, which is favored over the establishment of artificial wetlands, as the latter is considered an artificial use.

124 Joseph W Dellapenna, Introduction to Riparian Rights, in I WATER AND WATER RIGHTS, supra note 104, § 6.01(c).

125 See, e.g., City of Waterbury v Town of Wash., 800 A.2d 1102 (Conn 2002) (stating that

Connecticut has been a regulated riparian state since 1982, allowing cities to acquire prescriptive rights after twenty years of a dam's presence This is due to the state's prior adherence to the natural flow theory before the 1982 modification of the natural flow doctrine through legislation.

Water law reform in West Virginia reflects a shift from traditional riparian rights, which are increasingly focused on non-consumptive uses, such as lakefront property rights and submerged land development Legal disputes now often center around the reasonableness of pier locations, lake surface usage, and submerged land development rights Additionally, the introduction of a permit system has transitioned many water-related conflicts from the judicial system to administrative agencies, altering the landscape of water resource management.

The Deeper Lessons of the Appropriation Versus

Geography is Destiny

Prior appropriation is often thought of as being similar to Swiss Wine:

Water law does not easily translate across regions, as it must adapt to the specific climate and landscape of an area While geographical determinism has fluctuated in relevance, Western water law illustrates that legal frameworks emerge from the need to manage water scarcity in a variable climate The West faces ongoing challenges from long-term shortages, necessitating a system that fairly allocates the risks associated with water scarcity In contrast, while the Eastern regions experience droughts, these tend to be shorter in duration, highlighting the distinct water management challenges faced in different geographical areas.

The eastern states benefit from ample water reserves that support ecosystem services and future growth, akin to "super-clean" areas under the Clean Air Act's Prevention of Significant Deterioration program It is assumed that most water will remain in its natural state, with only a small portion consumed In contrast, the western states face significant challenges due to excessive water consumption, necessitating a rollback of existing uses for sustainable management The East must address the issue of unconsumed water by adopting a more sustainable allocation regime that recognizes both consumptive and non-consumptive uses, ensuring that water management prioritizes the maintenance of existing flow functions.

The evolving "soft" regulatory framework governing the Great Lakes exemplifies the use of the existing hydrograph as a foundational baseline Since the 1980s, governors from the Great Lakes region, alongside Canadian provincial leaders, have aimed to establish regulations to significantly restrict out-of-basin water diversions In the late 1990s, they engaged a western water attorney who advised forming an interstate compact to fairly allocate the lakes among the states This approach treated the lakes as a common resource with uncertain entitlements, advocating for a compact to solidify state rights Currently, a legal framework exists, combining both binding and non-binding laws, effectively designating the lakes primarily for non-consumptive purposes such as navigation, recreation, and ecological preservation.

Water law reform in West Virginia emphasizes conservation by placing a significant burden on new, particularly large, consumptive users to justify any deviation from established baseline standards This approach aligns with the findings of the 2000 International Joint Commission report on Great Lakes diversions.

In the Great Lakes system, water is a precious resource with multiple potential uses, meaning there is no surplus; every drop is valuable Human intervention in water management necessitates careful trade-offs, particularly as environmental interests demand variations in water levels to maintain ecological diversity.

Harder Property Rights Are Needed in the East

Critics of the common law of riparian rights argue that its ambiguous nature leads to an open-access commons, allowing unlimited present use of water with minimal risk of legal challenges from other riparians There is a consensus that clearer rules would benefit both water users and the state Secure water rights encourage investment, establish clear guidelines for conflict resolution, and facilitate market-driven water reallocation Additionally, the debate surrounding the prior appropriation system's inflexibility revolves around how to best integrate state interests Ultimately, acknowledging the necessity for a permit system implies the need for a priority system to ensure greater security.

Priority is an essential concept in society, often viewed as fair to honor the first claimant over subsequent ones The principle of "first come, first served" is deeply ingrained in our norms When priority is disregarded, a compelling justification is necessary, such as when elite frequent flyers may displace earlier but less privileged passengers due to the significant expectations created by the airline Similarly, in water rights, prioritizing a later claim can be justified to rectify flaws in the allocation system, as illustrated by the California-Hawaii public trust doctrines Ultimately, the trust in these systems remains tenuous.

135 See A Dan Tarlock, How Well Can International Water Allocation Regimes Adapt to

Global Climate Change?, 15 J LAND USE & ENVTL L 423, 437-43 (2000).

136 INT'L JOINT COMM'N, PROTECTION OF THE WATERS OF THE GREAT LAKES: FINAL REPORT TO

THE GOVERNMENTS OF CANADA AND THE UNITED STATES (2000), available at http://www.iigr.ca/ pdf/ documents/ 406_Protection of theWaters.pdf.

137 Miguel Solanes, Water: Rights, Flexibility and Governance: A Balance That Matters? 3

A 2002 unpublished manuscript prepared for the Third World Water Forum in Kyoto highlights that inadequate water rights have hindered investment in essential agricultural development in Zimbabwe, a challenge that existed well before the current political instability.

WEST VIRGINIA LA W REVIEW to be invoked only if a prior use threatens to destroy an entire aquatic ecosystem subject to the trust.1 38

The implementation of a permit system necessitates the safeguarding of existing uses, as highlighted by Florida's Water Management Act, which prioritizes non-interference with current water usage as a key criterion for permit issuance A notable case from a Florida intermediate court of appeals demonstrated this principle by significantly reducing water allocations for agricultural users to maintain pressure levels in a well field, emphasizing that existing users hold "superiority" over new applicants.

Priority is a Default Rule, Not a Bright Line Rule

The concept of priority in water allocation is often misinterpreted, resembling the intense debates over nuclear war strategies in the mid-20th century Although there are instances of priority enforcement during severe droughts, most situations are managed through market mechanisms or customary practices to mitigate the harsh impacts of strict priority In Colorado's Front Range, water users recognize the importance of incorporating flexibility into the priority system A significant portion of Colorado's allocation from the Colorado River is directed to the eastern slope for agricultural and urban use, yet these upstream rights are subordinate to a senior water right held by a power plant on the western slope This has raised concerns among eastern slope users, like the Northern Colorado Conservancy District, about potential water shortages in low-flow years To prevent a call from the senior right holder, the project and Denver city officials have proposed compensating the power plant's owner for any lost energy.

138 State Water Resources Control Bd Cases, No JC 4118 (Cal Super Ct Feb 27, 2003),

The proposed Statement of Decision at 80 emphasizes that the public trust doctrine is constrained by the responsibility of relevant authorities to evaluate the consequences of redirecting the full flow of a navigable stream.

139 Harloff v City of Sarasota, 575 So 2d 1324,1328 (Fla Dist Ct App 1991) See also the discussion of Edmondson v Edwards, 11 S.W.3d 906, 910 (Mo Ct App 2003), supra note 83.

140 I developed this argument at length in A Dan Tarlock, Prior Appropriation: Rule, Princi- ple, or Rhetoric?, 76 N.D L REV 881 (2001) and The Future of Prior Appropriation in the West,

In recent years, I have received numerous emails from water lawyers across the Western United States highlighting instances of priority enforcement in water rights A notable example includes a report from the Omaha World-Herald on July 22, 2003, which detailed the cutoff of water access for post-1889 rights holders in Nebraska's panhandle.

141 Northern Colorado Water Conservancy District, WATER NEWS, Apr 2003, at 19.

Water Rights Are Private Entitlements Subject

Water rights under prior appropriation are not exclusive private property rights; instead, they are limited entitlements that prioritize public interest over individual ownership This distinction is widely recognized, as state regulations reflect water's unique status Historically, these regulations manifest as state proprietary claims, asserting regulatory power rather than ownership The principle of beneficial and non-wasteful use is foundational to western water law, emphasizing that the public interest extends beyond waste prevention It now encompasses the efficient use of water and considers the social and environmental impacts of water diversions.

4 and transfers and the conservation of stressed aquatic ecosystems.

Confusion surrounding state ownership assertions stems from the nineteenth-century legacy of laissez-faire and limited government, which influenced modern water rights During this period, the state's authority to define and regulate property rights faced significant challenges, often viewed as infringing on natural rights and classic liberal property theories Since water cannot be fully owned, states claimed ownership of this resource to strengthen their regulatory power, a practice that persists today State ownership is primarily asserted for three reasons: to establish full proprietary ownership, to exercise sovereign regulatory power, and to uphold the public trust.

The assertion that the state is the exclusive source of the right to use resources is a radical claim, often linked to the authority to impose charges for their utilization, as seen in state-imposed royalties on the extraction of minerals Nevertheless, in the context of the western liberal tradition, the concept of state ownership has not been conventionally accepted.

142 In re Water Use Permit Applications, 9 P.3d 409, 457-58 (Haw 2000).

Idaho Code § 42-202B(3) mandates that the state engineer assess local public interest when evaluating new water diversions and transfers Following judicial interpretations that encompassed secondary impacts, the legislature refined this definition to focus solely on the interests of those directly affected by the proposed water usage and its effects on public water resources.

145 See Frank J Trelease, Government Ownership and Control of Water, 45 CAL L REV 638,

The case Yanner v Eaton (1999) established that state ownership does not imply proprietary rights but rather serves as a historical construct for the sovereign authority to exercise regulation.

West Virginia's legal framework views water rights not as complete property ownership but as limited privileges regulated by the state This perspective allows the state to manage access to fish, aquatic life, and water use through a permit system Although the concept of taxing water extraction has emerged, it reinforces the notion that water rights are incomplete, requiring state permission for access and allowing for denial if a more efficient use is determined Ultimately, any reallocation of water resources is subject to state oversight, reflecting the state's regulatory authority over water rights.

West Virginia must emphasize state control based on sovereignty rather than proprietary ownership due to the ambiguity surrounding state claims and public rights to water usage The state inherited a Virginia law permitting the alienation of beds and banks of certain non-tidal navigable rivers, which restricts public rights to navigable and floatable waterways Consequently, the state possesses significant authority to manage the beds of non-navigable waters classified as common or "waste or unappropriated" lands However, the West Virginia Supreme Court of Appeals expanded state ownership by ruling that all beds of navigable waters established post-1863 belong to the state This development impacts the state's regulatory authority and public recreational rights.

In the case of California v Riverside Superior Court, the court determined that California was responsible for the expenses related to cleaning a contaminated aquifer, leading the state to seek reimbursement from its insurance provider The insurance carrier attempted to apply the "owned property" exclusion; however, the court ruled that the statutory declaration indicating the state owned the waters "in trust" for the people did not grant it proprietary ownership.

In early 2003, legislation aimed at establishing a statewide water use plan faced criticism from the state Chamber of Commerce and various business organizations, who viewed it as a potential precursor to water use taxation.

On January 13, 2004, at PIC, the discussion surrounding water policy appears to have stalled for now Democratic gubernatorial candidate Lloyd Jackson advocates for a comprehensive state water policy without imposing taxes or restricting usage for in-state businesses For more details, refer to the West Virginia Water Policy for the 21st Century executive summary available at http://www.jacksonforgov.com/download/water.pdf (last accessed April 1, 2004).

149 See In re Water Use Permit Applications, 9 P.3d 409 (Haw 2000).

150 See STEFANO BURCHI, FOOD & AGRIC ORG UNITED NATIONS, LEGIS STUDY No 52,

PREPARING NATIONAL REGULATIONS FOR WATER RESOURCES MANAGEMENT 5 (1994) (concluding that the non-regulated uses "represent an ever shrinking minority of water allocation decisions overall").

153 See Campbell Brown & Co v Elkins, 93 S.E.2d 248 (W Va 1956).

Water law reform in West Virginia is historically linked to the classification of rivers rather than the necessity for state regulation This legal precedent should not limit the state’s regulatory authority over all water bodies within its jurisdiction.

The third formulation of state ownership posits that all water use falls under the public trust doctrine, which limits state powers to grant private rights that could jeopardize water resources This American doctrine extends from Roman and English common law, emphasizing the necessity to protect aquatic ecosystems It asserts that existing water rights can be curtailed to preserve ecological functions and mandates that the state must safeguard these values in all water allocation decisions While the public trust doctrine is primarily judicial in the U.S., other countries, such as South Africa, have enacted similar principles through legislation, establishing environmental reserves to regulate water diversions.

The public trust doctrine in West Virginia appears to be more restricted compared to the broader California-Hawaii doctrine, as indicated by George Originating from Virginia's transition from the English Crown's jus publicum after the Revolution, West Virginia's public trust allows for state alienation In contrast, the California-Hawaii doctrine derives its foundation from the jus publicum, which does not inhibit the state from asserting a more robust public trust against water right holders, whose rights are often less secure than those of landowners under the trust.

The common-law principle of the public trust doctrine protects state regulation of trust resources from Fifth Amendment taking claims In the case of McQueen v South Carolina Coastal Council, the court ruled that the state could deny building permits on two vacant lots in North Myrtle Beach, purchased for $4,200, because the land had reverted to tidelands due to erosion The court emphasized that the public trust applies to wetlands affected by tidal erosion, resulting in no compensable taking, and noted that it was nature, not the state, that caused the loss of land.

157 T.N Narasimhan, A Finite World, Earth Sciences, and Public Trust, 41 GROUND WATER I1

Governments hold a crucial responsibility to safeguard natural resources from detrimental alterations while ensuring their beneficial use The extensive body of public trust literature highlights significant contributions, including William D Aiza's work on the interplay between democracy, distrust, and public trust processes.

Based Constitutional Theory, the Public Trust Doctrine, and the Search for a Substantive Envi- ronmental Valve, 45 UCLA L REV 385 (1997); Richard L Lazarus, Changing Conceptions of

Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA

L REV 631 (1986); Erin Ryan, Public Trust and Distrust: The Theoretical Implications of the

Public Trust Doctrine for Natural Resources Management, 31 ENVTL L 477 (2001); and Joseph

L Sax, The Public Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 MICH.

L REV 471 (1970) The leading cases are National Audubon Society v Superior Court, 658 P.2d

709 (Cal 1983) and In re Water Use Permit Applications, 9 P.3d 409 (Haw 2000) See also

WILCOX, supra note 108, at 98-112 (discussing Hawaii's sugar irrigation ditches).

WEST VIRGINIA LA W REVIEW lia is implementing a strategy to do this in the Murray-Darling basin, although there is no explicit mention of the public trust 15 8

TOWARD A SUSTAINABLE FUTURE

An effective state water law regime is essential for ensuring the environmentally sustainable use of water resources, which encompasses a range of uses from basic human consumption to the conservation of aquatic ecosystems This sustainable use is defined by resource decisions that establish hydrologic baselines for individual basins, protecting their ecological integrity while considering both consumptive and non-consumptive needs National legal frameworks face significant challenges, including the allocation of water for aquatic ecosystem services, reallocating water from inefficient agricultural practices, safeguarding rural communities, protecting minority groups with sustainable practices, limiting aquifer depletion, ensuring water availability during scarcity, integrating water quality management, and adapting to climate change impacts that affect rainfall and increase extreme weather events.

(9) the development of more adaptive and inclusive decision-making processes.' 60 The system of entitlements that was built up by traditional allocation

The agreement governing the Murray-Darling Basin establishes comprehensive land use and water management responsibilities for the basin states, continually updated through new agreements It allocates water flow among these states and empowers the Murray-Darling Commission to regulate water releases from designated upstream storage facilities The Commission operates under the oversight of a ministerial council and a stakeholder advisory board A significant aspect of its work is the implementation of an artificial base flow regime, which sets environmental flows aimed at restoring the river ecosystem In 1995, the Commission introduced a "Cap" to manage water resources effectively, marking a pivotal step in sustainable water management policies For more information, visit the Murray-Darling Basin Commission's website.

The Cap establishes annual diversion limits for the four basin states and the Australian Capital Territory, regulating allocations to Bulk Entitlements in the Goulburn and Murray Catchments in Victoria This framework aims to manage water resources effectively, ensuring sustainable usage across the region.

159 This definition was adopted by the United States Western Water Policy Review Advisory. See WATER IN THE WEST, supra note 36, at 3-1 to 3-5.

160 See FOOD & AGRIC ORG., supra note 5, at 150-59, for a survey of recent legislation dealing with these issues.

Water law reform in West Virginia is hindered by existing regimes, which are perceived as obstacles to necessary adjustments However, countries globally are enhancing their traditional property systems by integrating innovative techniques.

Limitations on Consumptive Use and the Redefinition

To address the pressures of aquatic ecosystem conservation and the risks of supply and demand imbalances, it is essential to limit or reduce consumptive uses of water Significant examples include South Africa's reserved environmental flows and the cap established under Australia's Murray-Darling management regime These initiatives for maintaining water flows operate within current entitlement frameworks, yet they hold the potential to modify and redefine these systems.

Limitation regimes introduce a new level of incompleteness to water rights, which have historically been influenced by natural laws, priority rules, and the rights of other users These complexities present risks, including potential loss of rights and the impact of new demands on existing entitlements Given the inherently uncertain nature of property rights, it is crucial to focus on the actual expectations behind water usage rather than solely on the enforcement of entitlements This perspective allows regulators and stakeholders to explore alternative methods to meet these expectations In some instances, transitioning from absolute entitlements to "firm" rights may be necessary, particularly in water-scarce years, emphasizing the need for physical solutions like adaptive management and water markets over traditional priority enforcement.

Water entitlements, traditionally linked to specific land parcels, are becoming increasingly transferable to address past misallocations, particularly the excessive allocation of water for low-value agricultural purposes This shift towards alienation transforms water rights into marketable commodities, yet it is crucial to understand that water markets serve as a tool for achieving more efficient and sustainable water use through equitable reallocation processes The state must determine the volume of water available for reallocation, and stringent monitoring of these markets is necessary to maintain fairness and sustainability.

161 See Pallazolo v Rhode Island, 533 U.S 606 (2001) (finding this consistent with takings jurisprudence).

162 Technically, physical solution exchanges wet water for the right to assert water rights that would promote inefficiency See Harrison Dunning, The "Physical Solution" in Western Water Law, 57 U CoLO L REV 445 (1986).

The West Virginia Law Review highlights that the transfer of water should not significantly disrupt local economies and ecosystems, ensuring that water is applied productively The Chilean experience with water markets serves as a valuable case study, showcasing the government's commitment to a market economy However, research indicates that many water markets in Chile have remained inactive and have had minimal effects on water use efficiency and resource reallocation, primarily due to various constraints and transaction costs.

Integrated Basin Planning and Management

Historically, water planning was dominated by engineers and hydrologists, but this has shifted towards more inclusive and democratic processes that emphasize stakeholder participation The World Commission on Dams' report highlights the importance of integrated water resources management (IWRM), which was endorsed in Agenda 21 at the 1992 UNCED and reaffirmed at the 2002 WSSD IWRM promotes the holistic management of freshwater as a limited resource and advocates for the integration of water plans within broader economic and social policies Its objectives include fostering a dynamic, multisectoral approach to water management, focusing on the sustainable use, protection, and conservation of water resources.

163 Carl Bauer, Marketing Water, Marketing Reform: Lessons from the Chilean Experience,

RESOURCES, Summer 2003 at 11, 13-14, available at http://www.rff.org/Documents/RFF- Resouces- 151 -Marketingwater.pdf.

164 U.N Conference on Environment and Development, June 3-14, 1992, Agenda 21, ch 18 18.6, U.N Doc A/CONF 151/26 (1992), available at http://www.un.org/esa/sustdev/documents/ agenda2 l/english/agenda2l toc.htm (last visited March 27, 2004).

Water law reform in West Virginia aims to align community needs with national economic development policies It focuses on designing, implementing, and evaluating projects that are economically efficient and socially appropriate, ensuring full public participation, particularly from women, youth, indigenous peoples, and local communities in water management decision-making Additionally, it seeks to identify and strengthen necessary institutional, legal, and financial mechanisms, especially in developing countries, to ensure that water policies act as catalysts for sustainable social progress and economic growth.

New Ground Water Conservation Regimes

Groundwater conservation faces significant challenges due to over-pumping and the complexities of regulation The concept of safe yield for a basin or aquifer involves intricate decisions regarding the long-term water budget, making it more than just a scientific measure Additionally, the negative effects of groundwater extraction on aquifers and adjacent surface streams often become apparent only over extended periods, unlike the immediate impacts of surface water withdrawals Furthermore, implementing use restrictions in groundwater rights is more complicated than in surface water rights, complicating effective management strategies.

Regulators face several challenges in managing groundwater resources, including the need to gather information on the effects of groundwater pumping, integrate ground and surface rights, and prevent excessive aquifer mining that exceeds recharge rates This may necessitate closing certain basins to new wells Additionally, it is crucial to ensure that groundwater extraction does not degrade aquifer quality, especially in coastal regions where excessive pumping can lead to saltwater intrusion To address these issues, states must have the authority to define sustainable yield basins, limit unsustainable withdrawals, and coordinate the use of ground and surface water.

166 See TARLOCK ET AL., supra note 109, at 532-46.

The Integration of Water Quantity and Quality

M ODELS OF STATE REGULATION

Eastern water reform encompasses a spectrum of approaches, from extensive water permit and planning frameworks to targeted adjustments of common law aimed at resolving specific issues While numerous model comprehensive water codes have been suggested, only a handful of states, including Florida and Iowa, have implemented detailed permit systems Notably, Florida stands out as the only state to actively utilize its water code.

168 See DAVID H GETCHES ET AL., CONTROLLING WATER USE: THE UNFINISHED BUSINESS OF WATER QUALITY PROTECTION (1991).

169 PUD No I of Jefferson County v Wash Dep't of Ecology, 511 U.S 700, 719 (1994).

170 See Weyerhaeuser Co v Costle, 590 F.2d 1011 (D.C Cir 1978) (holding that the Clean Water Act does not allow dischargers to obtain a credit for discharging into clean water).

1 The leading case is United States v State Water Resources Control Board, 227 Cal Rptr.

172 See, e.g., City of Thornton v Bijou Irrig Co., 926 P.2d 1, 90-93 (Colo 1996) (holding that appropriation has no basis to object to an exchange agreement that reduced flows available to dilute its discharge).

173 See Joseph W Dellapenna, Adapting Riparian Rights to the Twenty-First Century, 106 W.

Florida's explosive growth has led to significant conflicts over water resources, particularly due to its flat terrain and the disparity between the North, which supplies most of the water, and the South, where the majority of the population resides Developers are advocating for support in transferring water to the more populous southern regions.

175 IOWA CODE ANN §§ 455B.261 to 281 (West 1997 & Supp 2003).

Water law reform in West Virginia highlights the increasing use of regulatory codes for substantial water use, yet the 1997 Regulated Riparian Model Water Code, created by the American Society of Civil Engineers, remains largely unadopted, with most states opting to maintain common law and address specific issues For instance, Virginia retains riparian rights, modifying them only through surface water management area permits State laws can thus be categorized based on these approaches.

Information and Reserve Authority

Eastern permit programs primarily aim to gather data on water usage while serving as a regulatory authority to potentially restrict water use when necessary Kentucky's water code exemplifies this approach, having established a permit system in 1966 during the peak of dam construction, aimed at enhancing water resource planning and development However, the system has notable gaps, as it exempts all agricultural activities, domestic water use, and withdrawals for certified steam electric power plants The main goal remains to collect precise information on water usage, evidenced by the 1998 amendment that introduced a groundwater monitoring network Similarly, Maryland's permit program exempts agricultural withdrawals under 100,000 gallons per day and requires permits only for structures that utilize state waters, applying uniformly to both surface and groundwater.

176 See FLA STAT ANN §§ 373.042 (West 2000 & Supp 2004); Richard Hamann, Law and

The management of Florida's water resources has faced challenges, particularly regarding the establishment of minimum flows, which remains an unmet objective of the original policy In 1997, the Florida legislature amended the relevant code, complicating the process for setting minimum stream flows, as outlined in FLA STAT ANN § 373.0831(3).

The Regulated Riparian Model Water Code, edited by Joseph W Dellapenna in 1997, serves as a crucial framework for modern water management Robert E Beck highlights its significance in the article "The Regulated Riparian Code: Blueprint for Twenty First Century Water Management," published in the William & Mary Law Environmental Law and Policy Review This code provides essential guidelines for balancing water rights and usage among riparian landowners, ensuring sustainable management of water resources in the 21st century.

179 KY REV STAT ANN §§ 151.10 to 990 (Michie 2001 & Supp 2003) Tennessee adopted a water registration statute in 2002 TENN CODE ANN §§ 69-8-301 to -309.

182 MD CODE ANN., ENVIR § 5-502(n) (Supp 2003) Agriculture users, however, have the option of applying for a permit Id § 5-502(c)(2).

Regulation Specific Problems of Basins

Several states have opted to modify certain common law barriers, such as the watershed limitation, or to regulate specific basins For instance, Kentucky established a special authority for the Kentucky River Basin, which can impose fees for water usage aimed at maintaining the navigation system while also developing drought management plans In Virginia, commissions have been formed in various basins, like the Roanoke, that lack regulatory authority but are designed to enhance communication among stakeholders and encourage participation from all interested parties.

Short-Term Curtailment in Stressed Areas

Many eastern states implement regulations to manage water usage during drought conditions or in areas experiencing stress These laws allow states to pinpoint regions where water consumption may surpass available supplies, including specific watersheds and groundwater basins During droughts or in basins with unsustainable withdrawals, these regulations can restrict water extraction In North Carolina, legislation is in place to facilitate the management of both surface and groundwater resources.

Capacity use areas are designated zones where coordination is necessary between ground and surface water uses, especially when withdrawals could surpass renewal rates In Virginia, the establishment of groundwater management areas is permitted, requiring a permit for any withdrawals exceeding 300,000 gallons per month Existing users are safeguarded, with permits issued based on historical usage; however, past usage may be reduced if conservation savings are proven.

184 See George William Sherk, Meeting of Waters: The Conceptual Confluence of Water Law in the Eastern and Western States, NAT RESOURCES & ENV'T, Spring 1991, at 3.

185 See Ky River Auth v City of Danville, 932 S.W.2d 374 (Ky Ct App 1996) (holding that fees are dedicated to specific water conservation objectives and thus are not invalid taxes).

186 See VA CODE ANN §§ 62.1-69.39 (Michie Supp 2003).

According to 188 N.C Gen Stat Ann § 143-215.13 (2003) and the case of High Rock Lake Ass'n v N.C Envtl Mgmt Comm'n, 276 S.E.2d 472 (N.C Ct App 1981), the Commission holds the discretion to refrain from designating a capacity use area if the proposed water withdrawals by a nuclear power plant are expected to have minimal impacts on water quality and no adverse effects on water supply, provided that the conditions outlined in the permit are adhered to.

190 Cf id § 62.1-259(i) (not requiring permit when withdrawing less than 300,000 gallons a month).

191 See id § 62.1-261 (permitting consecutive twelve-month withdrawals for the past five years for all uses except agricultural withdrawals, which have a right to consecutive twelve-month with-

WATER LAW REFORM IN WEST VIRGINIA

Minimum Stream Flow Protection

Virginia has taken significant steps to connect water use with the protection of aquatic ecosystems In 1989, the state was empowered to designate surface water management areas based on broad criteria, primarily focusing on water levels that could adversely affect public welfare, health, and safety Once designated, the state can regulate water withdrawals, although this authority includes several exemptions Notably, the legislation allows for the protection of instream uses, enabling a balance between instream and off-stream water uses to optimize the welfare of Virginia's citizens without imposing undue burdens on individual water users or groups Additionally, a similar framework for managing stressed groundwater-dependent areas was established in 1992.

In March 2004, West Virginia enacted a progressive water registration and planning statute, asserting that the state's waters are valuable public natural resources managed for the benefit of its citizens This statute emphasizes both consumptive and non-consumptive uses, defining beneficial use to encompass traditional water consumption alongside recreation, navigation, wildlife habitat preservation, and cultural and aesthetic values While water use continues to be regulated by common law riparian rights, the statute marks a significant step towards comprehensive water management in the state.

According to 194 Id § 62.1-243, certain exemptions apply to water withdrawals, including (1) those under 300,000 gallons per month, (2) withdrawals from municipal or privately owned water companies established before 1989 that remain within their grandfathered limits, (3) future withdrawals with a section 401 certification under the Clean Water Act, and (4) all beneficial consumptive uses that were in existence at that time.

1989, provided that the grandfathered rate is not increased).

197 Water Resources Protection Act, S 163, 79th Leg Sess., (W Va 2004) (to be codified at

198 Id § 22-25-3 (to be codified at W VA CODE § 22-25-3).

199 Id § 22-25-2(a) (to be codified at W VA CODE § 22-25-2(a)).

200 Id § 22-25-1(2) (to be codified at W VA CODE § 22-25-1(2)).

Tiêu đề	Water Law Reform in West Virginia: The Broader Context
Tác giả	A. Dan Tarlock
Người hướng dẫn	Dean John W. Fisher
Trường học	Chicago-Kent College of Law
Chuyên ngành	Water Law
Thể loại	symposium article
Năm xuất bản	2004
Thành phố	Morgantown

Định dạng
Số trang	45
Dung lượng	2,93 MB