DOC PREVIEW
NCSU ARE 306 - Water Law

This preview shows page 1 out of 3 pages.

Save
View full document
View full document
Premium Document
Do you want full access? Go Premium and unlock all 3 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 3 pages.
Access to all documents
Download any document
Ad free experience

Unformatted text preview:

1Unit 16 Water Law ARE 306 I. Types of Water A. Natural surface waters B. Diffused surface waters C. Underground streams D. Percolating groundwater E. Springs F. Water in artificial channels and ponds II. Natural Surface Waters The rights which owners and occupants of land adjoining a watercourse have to use that water are called riparian rights. The humid Eastern states have traditionally followed the riparian doctrine of water rights. Riparian rights attach to both surface and subterranean watercourses and to other definite, natural sources of water supply on the surface of the earth. The nature of these rights is determined using the natural flow theory or the reasonable use theory. Under the natural flow theory, each riparian owner has a right to have the water of the stream remain substantially in its natural state, free from any unreasonable diminution in quantity and pollution of quality. Under the reasonable use theory, each riparian owner has the right to make the maximum reasonable use of the water so long as it does not interfere with use by others. The riparian owner may be allowed to take the whole flow of the stream, if needed for domestic, or natural, uses, leaving none for riparian owners downstream. North Carolina follows the reasonable use theory. Natural uses are those arising from the necessities of life, such as household use, drinking, bathing, irrigating small gardens or watering domestic animals. The riparian owner may not take all of the water to the exclusion of the other downstream owners for artificial uses, which are those uses that are not for domestic use. Artificial uses would include commercial stock watering, irrigation, and recreational use, such as hunting, fishing, and swimming. The riparian landowner who raises stock on a commercial scale cannot exhaust the stream flow unless other riparian owners’ domestic needs have been met. The right to irrigate applies only to the excess water available after domestic purposes and watering domestic animals are supplied. Riparian owners have the right to hunt, fish and swim in adjoining watercourses. The arid Western states have adopted the doctrine of prior appropriation. Under this theory, the first owner to divert water can use it all. The water may be used anywhere as long as the use is beneficial and reasonable. The earliest appropriation of water from a particular watercourse has a prior exclusive right to use the water appropriated over later appropriators (“first in time, first in right”).2 III. Percolating Groundwater Water found below the surface that is not in a clearly defined underground watercourse is called percolating groundwater. States have varying options regarding the right to use this water: (1) prior appropriation (discussed above); (2) absolute ownership (the owner of overlying lands is the absolute owner of all percolating waters thereunder; owners may withdraw as much as they desire without regard to reasonableness or the effect on others); (3) rule of reasonable use (water use by a landowner is limited to the amount necessary for some reasonable beneficial purpose in connection with his land; this is the rule adopted in North Carolina); (4) correlative right rule (when there is insufficient groundwater from a common source to meet all the needs for use on overlying land, the supply is divided among competing users in proportion to the ownership of the overlying land); and (5) statutory modifications (based on the Restatement (2nd) of Torts), and other state law. IV. Boundaries Navigable water is water that is suitable for commercial navigation (the transportation of goods), and non-navigable water is not. Title to land under navigable streams or natural lakes is held by the state as public trust land. The state may lease but never sell public trust land. Title to land under non-navigable water is held by the owner of the abutting land and extends to the center of the main channel of the stream unless he owns property on both sides and then the streambed is the exclusive property of the landowner. A riparian owner who owns both sides of a non navigable water may maintain a trespass action against anyone using the water. The boundary line along a stream may change as the stream itself changes. This depends on whether the change is by accretion or avulsion. Accretion is the slow addition of land to the banks caused by the washing action of the body of water and ordinarily belongs to the adjoining landowner. Avulsion is the sudden loss or addition of land by the actions of the water and does not change the boundary from its original place. Erosion is the slow wearing away of land by water that results in a change in the boundary. Reliction is the gradual lowering of the water level in a natural lake resulting in the addition of land to the landowner. Submergence is the opposite of Reliction and involves the gradual and permanent inundation of land that was once dry. Artificial lakes are not governed by these rules. Artificial lakes are generally governed under the law that was used to create them. This may be federal law if the lake was created by the U.S. Army Corps of Engineers or it may be state law if the lake was created by an entity governed by state law. V. Diffuse Surface Waters Diffuse surface waters (runoff) may originate from any natural source. They are short-lived and are spread over the ground but not yet concentrated enough to form a3channel flow or a lake. Landowners may want to use these waters or they may want to get rid of them (e.g., drainage or obstruction). The courts follow various rules when deciding cases related to getting rid of diffused surface water: (1) civil-law rule, (2) common-enemy rule, or (3) rule of reasonable use (the one adopted by North Carolina courts). VI. Special Districts The legislatures of many states have created special districts to deal with water, such as levee and drainage districts and soil and water conservation districts. These districts generally can acquire easements by condemnation and can construct and maintain drainage systems. The costs are borne proportionally by the affected landowners. VII. Capacity Use Areas North Carolina now has two capacity use areas where large withdrawals of groundwater are


View Full Document

NCSU ARE 306 - Water Law

Documents in this Course
SYLLABUS

SYLLABUS

14 pages

CASE

CASE

19 pages

CASE

CASE

11 pages

CASE

CASE

4 pages

CASE

CASE

5 pages

CASE

CASE

9 pages

CASE

CASE

10 pages

CASE

CASE

19 pages

Load more
Download Water Law
Our administrator received your request to download this document. We will send you the file to your email shortly.
Loading Unlocking...
Login

Join to view Water Law and access 3M+ class-specific study document.

or
We will never post anything without your permission.
Don't have an account?
Sign Up

Join to view Water Law 2 2 and access 3M+ class-specific study document.

or

By creating an account you agree to our Privacy Policy and Terms Of Use

Already a member?