Water law in the Roanoke Basin. By Richard Whisnant UNC School of Government

Transcription

1 Water law in the Roanoke Basin By Richard Whisnant UNC School of Government

2 Natural view: the profound water cycle Legal/bureaucratic views: some examples of how we divide up what is ultimately indivisible Surface vs groundwater Flowing versus stored Perennial vs intermittent vs ephemeral Stormwater/raw water/treated water/wastewater Public trust vs private water Navigable vs nonnavigable Water resources vs water quality Point sources vs nonpoint sources of pollution By use: drinking, power, waste removal, recreation, habitat The property law view: who owns the water? Not the right question

3 No discharge without permit (federal NPDES 402, delegated to states of NC and Va, other state laws) No public water supply without permit (federal SDWA, state law) States differ in important respects: In NC, no permit required for withdrawals with limited exceptions: capacity use areas, interbasin transfers

4 The basins used for IBT permitting are smaller than the major river basins commonly known in N.C.

5 2007 Interbasin transfer legislation S.L made interbasin transfers much more difficult.

6 Law of riparian rights goes way back Aqua currit et debet currerer, ut currerer solebat! Ervin, Justinian, J., standing emperor in for Justice of Byzantia W.J. Adams, and HRE NC c. 550 SupCt, a.d. 1924

7 Background: what s the law in law of riparian rights? Law is a prediction of what someone or some agency backed by state force will do It is not just what is written in a given text (statute, rule, published judicial decision) What do courts always try to do in publishing decisions? Three things that often conflict: Be perceived as consistent with legal texts Be perceived as fair between the parties Avoid screwing up future disputes

8 You gotta problem with that?

9 Law of riparian rights in NC is unpredictable Reasonable use test is inherently unpredictable. Riparianism as a limit on withdrawal rights very unclear Do public water systems have right to distribute water? cf Pernell and Harris v. Norfolk & Western RY. Older cases don t match widely-shared views Groundwater: would Rouse v Kinston and Bayer v. Nello Teer come out the same way today? Statutes not reconciled with cases or each other Older cases reflect dubious scientific understanding (groundwater/surface water interaction; role of wetlands and stormwater) and no grasp of current policy issues Beneficial use of stormwater after Pendergrast etc???

10 Law of riparian rights in NC is incomplete and unintegrated Ignores huge federal role: USACE, FPC/FERC, TVA, USDA Ignores statutes that contradict basic tenets of riparianism (interbasin transfers, funding of water and wastewater systems and policy to encourage regionalization ) At odds with collective response to drought

11 Riparian rights not well suited for solving water scarcity problems Unpredictable Inefficient Incomplete and unintegrated with other legal requirements Other than that it s a pretty good system, because it s low cost, as long as there are minimal disputes.

12 we re fundamentally missing the nature of the beast

13 How we have evolved as water users under our present system of riparian rights

14 Are we rolling downhill like a snowball headed for hell??

15 Problematic scenarios Scenario 1: Stream dries up from withdrawals Scenario 2: Wells dry up from withdrawals Scenario 3: City overcommits Scenario 4: No good local new supply options

16 Global and institutional context Global context: severe water shortages in many places, including southwestern U.S., will make assured fresh water THE critical economic asset Institutional context: Southern states behind in water management Great Lakes Compact Potomac Water management districts

17 For more info: Richard Whisnant, Prof. of Public Law and Government, UNC School of Government Water wiki