View source for Water resources law

{{Short description|Law and regulations that relate to water resources}}
{{About|the laws regulating the use of water|environmental protection laws|water quality law}}
{{Multiple issues|
{{globalize|date=May 2010}}
{{Lead too short|date=May 2022}}
}}

{{Environmental law}}

'''Water resources law''' (in some jurisdictions, shortened to "water law") is the field of law dealing with the ownership, control, and use of [[water]] as a [[Water resources|resource]]. It is most closely related to [[property law]], and is distinct from [[Water quality law|laws governing water quality]].<ref>{{Cite web|date=2020-07-24|title=WATER GOVERNANCE|url=https://storymaps.arcgis.com/stories/58fe4142518a43d09df67dcc5bc6c080|access-date=2021-09-22|website=ArcGIS StoryMaps|language=en|archive-date=2021-09-22|archive-url=https://web.archive.org/web/20210922024247/https://storymaps.arcgis.com/stories/58fe4142518a43d09df67dcc5bc6c080|url-status=dead}}</ref>

== Waters subject to regulation ==

Water is ubiquitous and does not respect political boundaries. Water resources laws may apply to any portion of the [[hydrosphere]] over which claims may be made to appropriate or maintain the water to serve some purpose. Such waters include, but are not limited to:

*[[Surface water]]s—lakes, rivers, streams, oceans, and wetlands;
*[[Surface runoff]]—generally water that flows across the land from [[rain]], [[floodwater]]s, and [[snowmelt]] before those waters reach watercourses, lakes, wetlands, or oceans;
*[[Groundwater]]—particularly water present in [[aquifer]]s.

==History==
[[File:Hammurabi code.jpg|thumb|The Code of Hammurabi, containing one of the earliest legal statutes related to water resources.]]
The history of people's relation to water illustrates varied approaches to the management of water resources.  "Lipit Ishtar and Ur Nammu both contain water provisions, pre-date Hammurabi by at least 250 years, and clearly provide the normative underpinnings on which the Hammurabi Code was constructed."{{Citation needed|date=October 2014}} The [[Code of Hammurabi]] was one of the earliest written laws to deal with water issues, and this code included the administration of water use. At the time the code was written in ancient Mesopotamia, the civilizations in the surrounding lands were dependent on the Tigris and Euphrates rivers to survive. As a result, the leaders needed to develop intricate canal and irrigation systems to sustain their needs for the water.<ref>{{Citation|last=Kornfeld|first=Itzchak E.|title=Mesopotamia: A History of Water and Law|date=2009|url=http://link.springer.com/10.1007/978-1-4020-9867-3_2|work=The Evolution of the Law and Politics of Water|pages=21–36|editor-last=Dellapenna|editor-first=Joseph W.|place=Dordrecht|publisher=Springer Netherlands|language=en|doi=10.1007/978-1-4020-9867-3_2|isbn=978-1-4020-9866-6|access-date=2021-09-26|editor2-last=Gupta|editor2-first=Joyeeta|url-access=subscription}}</ref> The code was developed about 3,800 years ago by King Hammurabi of Babylonia.<ref>Jones, P. Andrew, and Cech, Tom. ''Colorado Water Law for Non-Lawyers''. Boulder, CO, USA: University Press of Colorado, 2009.</ref>

==Difficulties of water rights==
Water is uniquely difficult to regulate, because laws are designed mainly for land. Water is mobile, its supply varies by year, season, and location, and it can be used simultaneously by many entities.<ref>{{Cite web|title=Water Law Overview - National Agricultural Law Center|url=https://nationalaglawcenter.org/overview/water-law/|access-date=2021-09-26|website=nationalaglawcenter.org}}</ref> As with property law, water rights can be described as a "bundle of sticks" containing multiple, separable activities that can have varying levels of regulation. For instance, some uses of water divert it from its natural course but return most or all of it (e.g. [[hydroelectricity|hydroelectric plants]]), while others consume much of what they take (ice, [[agriculture]]), and still others use water without diverting it at all (e.g. [[boating]]). Each type of activity has its own needs and can in theory be regulated separately. There are several types of conflict likely to arise: absolute shortages; shortages in a particular time or place, diversions of water that reduce the flow available to others, pollutants or other changes (such as temperature or [[turbidity]]) that render water unfit for others' use, and the need to maintain "in-stream flows" of water to protect the natural [[ecosystem]].

One theory of history, put forward in [[Karl August Wittfogel]]'s book ''[[Oriental Despotism: A Comparative Study of Total Power]]'', holds that many empires were organized around a central authority that controlled a population through monopolizing the water supply. Such a [[hydraulic empire]] creates the potential for [[despotism]], and serves as a cautionary tale for designing water regulations.

Water law involves controversy in some parts of the world where a growing population faces increasing competition over a limited natural supply. Disputes over [[river]]s, [[lake]]s and underground [[aquifers]] cross national borders.<ref name=":0">{{Cite thesis|last=Thompson|first=Olivia N.|title=Binational Water Management: Perspectives of Local Texas Officials in the U.S.-Mexico Border Region|type=Masters of Public Administration Applied Research Project |publisher=Department of Political Science, Texas State University-San Marcos |date= December 2009|url=https://digital.library.txstate.edu/handle/10877/3758|language=en-US}}</ref> Although water law is still regulated mainly by individual countries, there are international sets of proposed rules such as the [http://www.internationalwaterlaw.org/IntlDocs/Helsinki_Rules.htm Helsinki Rules on the Uses of the Waters of International Rivers] {{Webarchive|url=https://web.archive.org/web/20061006024714/http://www.internationalwaterlaw.org/IntlDocs/Helsinki_Rules.htm |date=2006-10-06 }} and the [http://www.africanwater.org/hague_declaration.htm Hague Declaration on Water Security in the 21st Century].

Long-term issues in water law include the possible [[effects of global warming]] on rainfall patterns and evaporation; the availability and cost of [[desalination]] technology; the control of [[pollution]]; and the growth of [[aquaculture]].

== Legal models ==
The legal right to use a designated water supply is known as a [[water right]]. There are two major models used for water rights. The first is [[riparian rights]], where the owner of the adjacent land has the right to the water in the body next to it. The other major model is the [[Prior-appropriation water rights|prior appropriations model]], the first party to make use of a water supply has the first rights to it, regardless of whether the property is near the water source.<ref>{{Cite journal|last=Gopalakrishnan|first=Chennat|date=1973|title=The Doctrine of Prior Appropriation and Its Impact on Water Development: A Critical Survey|url=https://www.jstor.org/stable/3485791|journal=The American Journal of Economics and Sociology|volume=32|issue=1|pages=61–72|doi=10.1111/j.1536-7150.1973.tb02180.x|jstor=3485791|issn=0002-9246|url-access=subscription}}</ref> Riparian systems are generally more common in areas where water is plentiful, while appropriations systems are more common in dry climates. As water resource law is complex, many areas have a combination of the two models.

==Water law by country==

=== International law ===
{{Main|Right to water}}

The right to use water to satisfy basic human needs for personal and domestic uses has been protected under international [[human rights law]]. When incorporated in national legal frameworks, this right is articulated to other water rights within the broader body of water law. The human right to water has been recognized in international law through a wide range of international documents, including international human rights treaties, declarations and other standards. Additionally, the United Nations passed a resolution stating that the member states "recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights."<ref>{{Cite web|title=A/RES/64/292 - E - A/RES/64/292 -Desktop|url=https://undocs.org/A/RES/64/292|access-date=2021-09-20|website=undocs.org}}</ref>

The human right to water places the main responsibilities upon governments to ensure that people can enjoy "sufficient, safe, accessible and affordable water, without discrimination". Most especially, governments are expected to take reasonable steps to avoid a [[contaminated water|contaminated water supply]] and to ensure there are no water access distinctions amongst citizens. Today all states have at least ratified one human rights convention which explicitly or implicitly recognizes the right, and they all have signed at least one political declaration recognizing this right.

===Canada===
Under the ''[[Constitution Act, 1867]]'', jurisdiction over waterways is divided between the federal and provincial governments. Federal jurisdiction is derived from the powers to regulate navigation and shipping, fisheries, and the governing of the northern territories, which has resulted in the passage of:

:* the ''[[Fisheries Act (Canada)|Fisheries Act]]'',
:* the ''[[Navigation Protection Act]]'',
:* the ''[[Arctic Waters Pollution Prevention Act]]'', and
:* the ''[[Oceans Act (Canada)|Oceans Act]]''.

Provincial jurisdiction is derived from the powers over [[property and civil rights]], matters of a local and private nature, and management of [[Crown land]]s. In [[Ontario]], [[Quebec]] and other provinces, the [[stream bed|bed]]s of all [[navigable waters]] are vested in the Crown, in contrast to [[English law]].<ref>See ''{{sourcetext|source = The Beds of Navigable Waters Act}}'' in Ontario and [http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/CCQ/CCQ_A.html Civil Code of Quebec] {{Webarchive|url=https://web.archive.org/web/20120723162528/http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=%2FCCQ%2FCCQ_A.html |date=2012-07-23 }}, s. 919, in Quebec</ref> All provincial governments also govern [[water quality]] through laws on [[environmental protection]] and [[drinking water]], such as the ''[[Clean Water Act (Ontario)|Clean Water Act]]'' in Ontario.

===Australia===
Water law in Australia varies with each state.

In the state of New South Wales, water laws are enforced by an independent regulatory body; the [[Natural Resources Access Regulator]].

==== Tasmania ====
The Tasmanian Water Corporation   compulsorily acquired all drinking water supply infrastructure previously managed by local councils This policy was not popular with all local councillors.<ref>{{cite web |url=https://florafox.tumblr.com/post/3418412236/water-sewer-governance-tasmania |publisher= Flora Fox Regional News |title=Water and sewage governance Tasmania |date= 21 February 2011 |access-date=18 January 2022 |archive-url=https://web.archive.org/web/20110816121658/https://florafox.tumblr.com/post/3418412236/water-sewer-governance-tasmania |archive-date=16 August 2011 |url-status=dead}}</ref>

===Iran===
Seventh program of Iranian government in 2023-22 ordered the preparing and deployment of a new the bureau of unified water resource administration system.<ref>{{Cite web | url=https://dolat.ir/detail/395982 | title=سياست‌هاي كلي برنامه هفتم از سوي مقام معظم رهبري ابلاغ شد | language=fa | trans-title=The general policies of the 7th plan were announced by the Supreme Leader | website=dolat.ir}}</ref>

===Water law in the United States===
{{Main|Water law in the United States}}

In the [[United States]] there are complex legal systems for allocating [[water right]]s that vary by region.<ref name=":0" /> These varying systems exist for both historical and geographic reasons. Water law encompasses a broad array of subjects or categories designed to provide a framework to resolve disputes and policy issues relating to water:

*Public waters, including tidal waters and navigable waterways.
*Other surface waters—generally water that flows across non-public land from rain, floodwaters, and snowmelt before those waters reach public watercourses.
*Groundwater, sometimes called subterranean, percolating, or underground water
*Public regulation of waters, including flood control, environmental regulation—state and federal, public health regulation and regulation of fisheries
*Related to all of the above is interplay of public and private rights in water, which draws on aspects of eminent domain law and the federal commerce clause powers
*Water project law: the highly developed law regarding the formation, operation, and finance of public and quasi-public entities which operate local public works of flood control, navigation control, irrigation, and avoidance of [[environmental degradation]]
*Treaty Rights of Native Americans

The law governing these topics comes from all layers of law.  Some derives from common law principles which have developed over centuries, and which evolve as the nature of disputes presented to courts change.  For example, the judicial approach to landowner rights to divert surface waters has changed significantly in the last century as public attitudes about land and water have evolved.   Some derives from state statutory law.  Some derives from the original public grants of land to the States and from the documents of their origination. Some derives from state, federal and local regulation of waters through zoning, public health and other regulation.  Non-federally recognized Indian tribes do not have water rights.

Many states in the Midwestern US, such as Wisconsin, North Dakota, South Dakota, Nebraska, and Kansas, employ a riparian system of law when it comes to water resources.<ref>{{Cite journal|last=Glesner|first=Richard C.|date=1966|title=Riparian Water Law - Lakeshore Developments|url=https://heinonline.org/HOL/Page?lname=Glesner&public=false&collection=journals&handle=hein.journals/wlr1966&men_hide=false&men_tab=toc&kind=&page=172|journal=Wisconsin Law Review|volume=1966|pages=172–190|via=Hein Online}}</ref>

===Water law in England and Wales ===
Private companies are obliged to publish annually a sizeable report providing a relevant amount of nationwide comparable data on costs, revenues, profits, and performance levels. An independent regulatory authority of the [[water industry]] sector analyzes private companies outcomes and sets an allowed level of [[return on equity|return]] which is not fixed and incentive-based.
Privatizations in the UK were driven by an historical under-investment on an asset-intensive sector.<ref>{{cite web | url = https://www.water.org.uk/wp-content/uploads/2019/10/Re-municipalisation-case-study-review-25.07.19_FINAL.pdf | title = Remunicipalisation of Water Utilities - A desk review of selected case studies | pages = 1–2, 11 | website = water.org.uk | publisher =[[KPMG]] | year = 2017 | access-date = October 3, 2020 | archive-url = https://web.archive.org/web/20201003145107/https://webcache.googleusercontent.com/search?q=cache%3AeCZpUxVvIqYJ%3Ahttps%3A%2F%2Fwww.water.org.uk%2Fwp-content%2Fuploads%2F2019%2F10%2FRe-municipalisation-case-study-review-25.07.19_FINAL.pdf+&cd=1&hl=it&ct=clnk&gl=it&client=ubuntu | archive-date = October 3, 2020 | url-status = live}}</ref>

===Water law in the European Union===
For countries within the [[European Union]], water-related [[European Union directive|directives]] are important for [[water resource]] management and environmental and [[water quality]] standards. Key directives include the [[Urban Waste Water Directive]] 1992 <ref>{{cite web|url=http://ec.europa.eu/environment/water/water-urbanwaste/index_en.html|title=Water pollution - Environment - European Commission|website=ec.europa.eu|date=23 January 2024 }}</ref> (requiring most towns and cities to treat their wastewater to specified standards), and the [[Water Framework Directive]] 2000/60/EC, which requires water resource plans based on [[river basin]]s, including [[public participation]] based on [[Aarhus Convention]] principles. See [http://www.watertime.net/Docs/WP1/D7_Int_Context_final-revb.pdf Watertime — the international context], Section 2.

==See also==
{{Portal|Water|Law}}
* [[Clean Water Act]]
* [[Clean Water Act (Ontario)]]
* [[Clean Water Protection Act]]
* [[SB X-7]]
* ''[[Colorado River Water Conservation District v. United States]]''
* [[Drainage law]]
* [[Environmental Law]]
* [[Food safety]]
* [[Navigable servitude]]
* [[Right to water]]
* [[Water right]]

==References==
{{Reflist}}
* Hildering, A. (2004), ''[https://eburon.nl/en/product/international_law_sustainable_development_and_water_management/ International Law, Sustainable Development and Water Management]'', Eburon Academic Publishers, Delft, The Netherlands, 2004
* International Law Association Water Resources Committee (2004), [https://www.internationalwaterlaw.org/documents/intldocs/ILA/ILA_Berlin_Rules-2004.pdf Final Report presented at the Association's 2004 Conference in Berlin]
* UNEP (2002), ''[https://www.unep.org/resources/report/vital-water-graphics-overview-state-worlds-fresh-and-marine-waters Vital Water Graphics — An Overview of the State of the World's Fresh and Marine Waters]''. UNEP, Nairobi, Kenya.
* Sax, J. L., et al.. ''Legal Control of Water Resources: Cases and Materials (4th edition)''. Thomson/West (2006), {{ISBN|978-0-314-16314-1}}.

==Further reading==
* Ute Mager, ''[https://www.jura.uni-heidelberg.de/md/jura/mat/band_3_international_water_law.pdf International Water Law. Global Developments and Regional Examples]'' Jedermann-Verlag, Heidelberg 2015, {{ISBN|978-3-86825-319-1}}.
* George Vranesh, ''Colorado Water Law. Revised Edition'', University Press of Colorado (2000), {{ISBN|978-0-87081-543-0}}, 2003 supplement (March, 2004), {{ISBN|978-0-87081-755-7}}
* Washington Office of Attorney General.  [https://apps.ecology.wa.gov/publications/SummaryPages/0011012.html "An Introduction to Washington Water Law."]
* [http://www.policywest.net/index.html Paul Stanton Kibel] {{Webarchive|url=https://web.archive.org/web/20110724020053/http://www.policywest.net/index.html |date=2011-07-24 }}, ''[https://digitalcommons.law.ggu.edu/pubs/688/ Grasp on Water: a Natural Resource that Eludes NAFTA's Notion of Investment]'', [http://www.boalt.org/elq/documents/elq34-2-12-kibel-2007-0910.pdf Ecology Law Quarterly (2007)] {{Webarchive|url=https://web.archive.org/web/20130603121833/http://www.boalt.org/elq/documents/elq34-2-12-kibel-2007-0910.pdf |date=2013-06-03 }}

==External links==

{{Natural resources|state=expanded}}

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{{DEFAULTSORT:Water Law}}
[[Category:Water law| ]]