Transboundary Water Disputes: Is Your Water Protected? Under the little known legal doctrine of parens patriae, individual water rights are

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1 Transboundary Water Disputes: Is Your Water Protected? D. Montgomery Moore 1 Under the little known legal doctrine of parens patriae, individual water rights are subject to the decisions of the state in interstate water disputes. Parens patriae means parent of his or her country. Parens patriae and represents the idea that the state acts as parent when interstate water rights disputes arise. Transboundary water disputes are inherently all about too little water for too many different uses. How does a state prioritize uses? How do you know if your use is protected? Is the state even aware of your water use? Parens patriae Doctrine The doctrine of parens patriae has featured prominently in interstate water disputes. One of the earliest cases, Kansas v. Colorado, 206 U.S. 46 (1907), the United States Supreme Court ( Supreme Court ) held that the State of Kansas could sue as parens patriae to protect individual state interests from diversion of the Arkansas River. In New York v. New Jersey, 256 U.S. 296 (1921), the Supreme Court held that New York could sue, again on behalf of its citizens, to stop sewage discharges by New Jersey into interstate waters. 1 From the Florida Everglades World Heritage Site, to the Great Lakes, to the Southeast Water Wars, Dave Moore has worked with State Governors, State and Federal Agencies, the Justice Department and State Attorney's General, the Speaker of the House of Representatives on issues of national and international significance. A biologist, former U.S. EPA attorney, General Counsel for environmental group, and senior partner and leader in Amlaw 200 law firms, Dave is a trusted advisor with a diverse perspective, helping clients succeed in complex regulatory environments. Dave represented the largest water user in the interstate water disputes between Alabama, Florida and Georgia. Dave also worked with Congressional representatives, state and federal agencies to negotiation interstate compact language, including the first ever provisions addressing protected species. Dave has also worked on international transboundary water dispute issues, including the Great Lakes and International Joint Commission. Dave teaches water law at top 20 law school Emory University School of Law.

2 When a state acts as parens patriae, its actions can preclude future actions to protect water rights. In Badgley v. New York, 606 F.2d 358 (2d Cir. 1979), several riparian landowners in the State of Pennsylvania who used the waters of the Delaware River for what the court reports as primarily recreational interests were prohibited from brining suit to protect their right to the natural flow of the Delaware. The Supreme Court held that the landowners interests were represented by the State of Pennsylvania, which had intervened in an original jurisdiction suit brought by the State of New Jersey against New York. New Jersey had alleged New Yorks manipulation of the headwaters of the Delaware River through impoundments and withdrawals affected New Jersey s rights to the same water downstream. The New Jersey v. New York suit resulted in a Consent Decree apportioning the waters of the Delaware. New Jersey v. New York, 347 U.S. 995 (1954) (New Jersey v. New York IV). Following the 1954 Consent Decree, New York constructed several large impoundments and began withdrawals. Impoundment of the Pepacton Reservoir, 180 feet deep at its deepest point and with a a capacity of some 147 billion gallons, began in September 1954 with the first diversion to New York City occurred in January Cannonsville Reservoir, on the West Branch of the Delaware near Stilesville, New York, had a depth of 150 feet and a capacity of 97.4 billion gallons and was impounded in The first diversion to New York City occurred in January Elwood v. City of New York, 450 F. Supp. 846 (S.D.N.Y. 1978). What is most troubling about the Badgley decision for individual non-state water rights holders is that the court acknowledged that the State of Pennsylvania had not even sought to protect the interests of the Pennsylvania riparians. The 2d Circuit Court of Appeals found record evidence that the State of New Jersey had proferred evidence of riparian recreational uses of the

3 Delaware River, but the State of Pennsylvania had focused on industrial and municipal water withdrawal uses. The Court stated, Thus, appellees are correct in asserting that Pennsylvania could not have brought suit or intervened in the suit against New York to protect a mere collectivity of private riparian rights. But to draw from this the conclusion that the individual interests of Pennsylvania's riparian owners were not represented in the suit and are thus not affected by the Decree is to ignore the obvious fact that the riparian rights of the appellees are not independent of Pennsylvania's rights in the waters of the Delaware River but rather are derivative therefrom and are subject to change by the laws of that state. Connecticut v. Massachusetts, 282 U.S. 660 (1931). Thus, it necessarily follows that the rights of Pennsylvania citizens cannot exceed those of Pennsylvania itself and the extent of Pennsylvania's rights in the Delaware River was conclusively determined by the terms of the Decree. The final holding of Badgley is that the New Jersey v. New York litigation and the resultant Consent Decree extinguished the water rights of the Pennsylvania riparians. These riparian water rights holders were thereby precluded from suit, and could not request relief from inordinately large withdrawals, changes to natural flow, or any action which might impede their use of the riparian waters.

4 How Strong are your Rights? If you are a riparian, the law of most eastern states holds that you possess a property interest known as a usufruct. A usufruct is a right to use and is protected by the Due Process clause of the United States Constitution and most state Constitutions. That is, if a holder of a usufruct s interests are damaged, a takings analysis could result in a requirement for monetary compensation under inverse condemnation, takings, or related claims. Florida, with its Florida Water Resources Act of 1972 is an exception. Many eastern states are regulated riparian. The Evolution of Riparianism in the United States, Joseph Dellapenna (2011). In a regulated riparian state, certain uses of water are subject to regulation. Georgia, for example, requires permits for withdrawals above 100,000 gallons per day, including agricultural withdrawals. Surface Water Use Act & Groundwater Use Act (Ga. Code Ann , -96 (2008)) ; Groundwater Use (Ga. Comp. R. & Regs (1990)) Georgia Water Conservation Implementation Plan. Alabama has a system of declaration of water use; Alabama Water Resources Act (Ala. Code 9-10B-1-30 (2008) Declarations of Beneficial Use (Ala. Admin. Code. r (1994). Florida s system requires a permit for withdrawal of over 100,000 gallons, from a well six inches or greater, or a pump system with capacity of over 1 million gallons per day. Florida Statutes Chapter 373; see Water Management District regulations.

5 State acknowledgement and efforts to ascertain and account for individual water rights in a transboundary dispute is spotty at best. Predicting what water rights a state will choose to promote, or not, is left to state laws which may vastly differ from state to state, politics, and as with any litigation, depends upon the strengths and weaknesses of the case, evidence, and the predilection of the Court or Special Master. The three states involved in the water litigation between Alabama, Florida, and Georgia have vastly different water laws. Alabama s system is not a traditional permit system, but rather a notification of water use system. Alabama, like most Eastern states which adopted property and water laws from the Crown, is a riparian state. Wehby v. Turpin, 710 So.2d 1243 (Ala. 1998). A plot of land is riparian if it abuts or contains a river, stream, or lake. Water use is regulated under the Alabama Water Resources Act administered by the Office of Water Resources. Ala. Code Section 9-10B-1 et seq. Restrictions on water usage under Alabama s system are minimal. Governor Bentley in 2012 directed several agencies to adopt recommendations for a state water plan, with recommendations provided in 2014 moving toward a state water policy. Georgia follows a traditional regulated riparian 2 system. The riparian rights system remains intact, with certain water uses regulated under a permit system. Pyle v. Gilbert, 245 Ga. 403 (1980). In Georgia, the law governing a landowner s right to appropriate water is found in common law and Georgia s statutory provisions on water rights and trespass. O.G.C.A to 10, (2014). By statute, the Georgia General Assembly has adopted the doctrine of riparian rights. See Dorroh v. McCarthy, 265 Ga. 750, 751, 462 S.E.2d 708, 710 (1995)). In Georgia, water withdrawal permits are required generally for withdrawals above 2 See Blount, Rosenzweig, Moore et al., The Role of Water Rights and Georgia Law in Comprehensive Water Planning for Georgia (May 2002)(at

6 100,000 gallons per day through a permit system under the Georgia Georgia s permit regulations provide a general hierarchy of uses with domestic as highest priority, and including agricultural and industrial uses. Permits are not required, however, for in-stream uses which include uses such as hydropower, but also include recreation, aesthetics, and other uses. Like Alabama, Georgia has implemented additional water planning. In light of water supply pressures and the longstanding litigation over the Apalachicola-Chattahoochee-Flint, Georgia has enacted several statutes such the Georgia River Basin Management Planning Act, O.C.G.A et seq., Comprehensive Statewide Water Management Planning Act, O.C.G.A et seq., and the Metropolitan North Georgia Water Planning Act, O.C.G.A et seq. to address specific needs in the metropolitan Atlanta area. Florida has perhaps the most interesting and unique system. While originally a riparian right state, Florida s water law has evolved into a public resource type regulatory provision where water rights are held, with few exceptions, by the State of Florida as sovereign. This is the result of the 1972 Florida Water Resources Act. In 1974, the Florida Supreme Court held that developer Jupiter Company had no rights to the groundwater below its property in Tequesta, Florida. The Court found that those rights had been extinguished by the Florida Legislature with the enactment of the Water Resources Act of Village of Tequesta v. Jupiter Inlet Corporation, 371 So.2d 663 (Fla. 1974). Jupiter failed to register its rights to the groundwater, and therefore lost any claim to the water. Under Florida s permit system, withdrawal of water from a well that measures six inches or more in diameter, use of greater than 100,000 gallons of water or more per day, or capacity to pump 1 million gallons of water or more per day requires authorization from one of the five Florida Water Management Districts. The Water Management Districts form a comprehensive

7 water resource regulatory and management program, making determinations regarding competing uses, considering environmental and physical impacts of water management and use, and assuming regulatory and enforcement roles. Non-Permitted Uses We often think of water as a resource granted by government, through permit, authorization, registration, and the like. However, there are vast numbers of uses of water which are not through government permit. All in-stream uses aesthetic home values, in-stream aquatic flows require no permit. Hydropower generation a major non-consumptive use requires no water use or withdrawal permit in most states, but rather a showing of possession of water rights. Smaller withdrawals, less than 100,000 gallons, require no permit in most states. Some states, such as Alabama, require no permit, at all, for any water use but use the notification system addressed above. In regulated riparian systems, some water users who are not even riparian may have permits, but no traditional property right to water use. How are these rights to be handled in a transboundary dispute? In this time of growing transboundary disputes to water, how do individuals protect their rights and interests in water? The Badgley case stands strongly for the proposition that, if a state has not specifically advocated for preservation and protection of a water use right, that use can be extinquished. The Jupiter case acknowledges that states do not always act in interests of individual water rights owners. Under most state water systems, laws are not clear regarding how individual water uses are to be protected in the context of transboundary water adjudication. Some water uses have not been quantified and many have not been perfected in the sense of having obtain state permit,

8 authorization, or other explicit recognition. How are these uses to be protected? How are instream aquatic uses protected? How are simple property rights and property values of those who invest large sums based upon the historic use and availability of water? U.S. Supreme Court Interstate Water Decisions A discussion of Supreme Court equitable apportionment decisions is beyond the scope of this paper. In summary, the Supreme Court has rendered thirty decisions since the original Kansas v. Colorado doctrine, involving approximately twenty apportionments of interstate water resources. Interestingly, the aggressor state prevailed in about half of the cases. Four of the aggressor state winning cases involved prior rulings or compacts. See, e.g..nebraska v. Wyoming, 515 U.S. 1 (1995); Idaho v. Oregon, 462 U.S (1983)(natural resource apportionment); Colorado v. New Mexico, 459 U.S. 176 (1982); Wyoming v. Colorado, 298 U.S. 573 (1936). The equitable apportionment decision is, as the name implies, heavily dependent upon equity. A state which wastes water is unlikely to prevail upon the Court s equitable sensibilities. Measure of impact to traditional water use notions of social benefit, economics, and utility have governed equitable approprtionment suits. Environmental and in-stream uses have taken a back seat to the more utilitarian uses, but as with other water issues there is no reason that in-stream and ecosystem uses would not serve a greater role in future equitable apportionments. What is at Stake? A water right is a property right. Where water is physically appropriated, or a riparian is deprived of water by government action, it can constitute a taking requiring just compensation

9 under the Fifth Amendment to the United States Constitution, as well as state due process constitutional provisions. Water has inherent value. If water is essential to a business purpose, provides value, or its replacement is available at cost, then compensation may be recovered. Such was the case in Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313, 314 (2001). In Tulare, Federal government provisions to protect endangered delta smelt and winter-run chinook salmon species constituted a taking, entitling water rights holders to compensation. See also Tulare Lake Basin Water Storage Dist. v. United States, 59 Fed. Cl. 246, 255 (2003) opinion modified on reconsideration, 61 Fed. Cl. 624 (2004). Similarly, in Casitas Mun. Water Dist. v. United States, 543 F.3d 1276 (Fed. Cir. 2008), the requirement to divert water for a fish ladder was held to constitute a taking of water rights. As the Supreme Court has explained, the purpose of the fifth Amendment compensation requirement is to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. Armstrong v. United States, 364 U.S. 40, 49 (1960). The Fifth Amendment to the Constitution provides nor shall private property be taken for public use, without just compensation. A triad of Supreme Court cases stands for the proposition that deprivation of water rights can constitute a taking. In International Paper Co. v. United States, 282 U.S. 399 (1931), the Supreme Court found a nine-month deprivation of water rights to supply power during war time constituted a taking, requiring just compensation. In United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950), the Supreme Court held that the government s construction of a dam and associated diversion of water rights constituted a physical taking. Gerlach, 339 U.S. at

10 ("No reason appears why those who get the waters should be spared from making whole those from whom they are taken. Public interest requires appropriation; it does not require expropriation."). In Dugan v. Rank, 372 U.S. 609 (1963), in holding that an injunction would not issue to stop a government dam, the Supreme Court stated that riparian landowners along the San Joaquin River could bring a claim for government's physical appropriation of water as a physical taking. Assertion and Protection of Rights Methods by which water rights can be asserted and protected in the context of transboundary disputes will be discussed during the March 22, 2016 presentation. For those involved in the Apalachicola-Chattahoochee-Flint conflict, status of litigation, discovery, and your states actions as parens patriae can be tracked at Conclusion Based upon analysis of Supreme Court and other judicial decisions over the past century, issues in protecting water rights in the context of transboundary and interstate water disputes are complex. Cases like Badgley raise significant issues regarding protection of water uses. Water users should not assume state entities will acknowledge and protect water rights and resources in the context of transboundary disputes. State interests are often at odds with individual water rights users, and full use of existing water systems, notifications, and political and policy measures are needed to ensure water rights are considered and protected.

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