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Water is arguably our most vital resource, and though approximately 70 percent of Earth’s surface is covered in it, only about 3 percent of that water is freshwater, according to the World Water Reserve. However, most freshwater is inaccessible or polluted, leaving an estimated 0.4 percent of the water on the planet available for human consumption.
Water is relatively scarce, yet it is essential to the functioning of just about every aspect of human life and modern society. In the United States, federal and state governments regulate water resources, resulting in a complex system that often governs competing interests. Water law attorneys handle everything from rights and permitting to regulatory compliance and litigation.
Water Rights and Permitting
Much of the U.S. West and Southwest is arid or semiarid, with pockets of subarctic, Mediterranean, and tundra climates. From Texas to California, states are experiencing an increase in the frequency and duration of extreme drought conditions. The U.S. Department of Agriculture’s Economic Research Service reported that more than 20 percent of the land in the western region of the U.S. had extreme or exceptional drought conditions, and approximately 70 percent had severe drought conditions.
In addition to less precipitation for crops and aquifer replenishment, long-lasting droughts also lead to diminished snowpack and higher rates of evaporation of surface water, all of which constrain water supply. Continued drought increases the likelihood of water rights issues to arise. State water laws regulate access to freshwater sources.
Water Rights Laws
Most Western states adhere to the prior appropriations doctrine to regulate surface water rights and permitting. Groundwater regulation varies among states between prior appropriation, correlative rights, and reasonable use rules.
In the West, where surface water sources are rarer than in the East, access rights are based on the idea of priority. Prior appropriation doctrine is also known as the “first in time, first in right” rule. The person or entity with first rights to the water has no obligation to ensure other users also have access, even during drought conditions.
Those using surface water sources are usually not located in proximity to the sources, so they must divert the water, thereby removing it from its original source. In states that apply prior appropriations doctrine to groundwater, primary appropriators may draw water from an aquifer directly below their land or divert it from further away.
Prior appropriation states vary in how they apply the doctrine in their laws. However, they all establish the following three basic requirements for water rights and access:
- The appropriator must demonstrate an intent to use the water for a beneficial purpose.
- The appropriator must divert the water from its original source.
- The appropriator must use the water for its intended beneficial purpose.
Once the right is granted, it is protected as long as the appropriator continues to meet the legal requirements, regardless of whether a future appropriator demonstrates a more beneficial use. Most prior appropriation states implement a permitting system establishing rights to a surface or groundwater source.
California was the first and one of the only western states to employ the correlative rights doctrine to groundwater access and permitting laws. Correlative rights are similar to riparian rights found in Eastern states. In this approach, there is a differentiation in prioritization and access between those whose land overlies the water source and those who must divert the water for use.
Landowners with tracts overlying a groundwater source have priority over those who export water. Landowners with overlying tracts have equitable access to the water, and during times of water scarcity, groundwater use is limited to amounts that are fair and just among overlying landowners.
Exporters are always subordinate to overlying landowners. If there is a dispute about access or consumption between two exporters, the law applies the prior appropriation doctrine. When conflicts arise between an exporter and an overlying landowner, the overlying landowner is given preference, even if the exporter was there first. The overlying landowner has the right to access a reasonable amount of water for the intended use.
Arizona and Oklahoma are the two western states that apply the reasonable use doctrine in groundwater laws. Wyoming uses a hybrid of prior appropriation and reasonable use. The rules governing groundwater use allow overlying landowners to use whatever water they need, as long as it’s reasonable.
Overlying landowners are theoretically not permitted to waste water. However, as long as there is no water shortage or disputes of willful and malicious excessive withdrawals, there is little to no guidance on what constitutes a reasonable use.
Reasonable use laws generally do not grant entities or individuals rights to groundwater extraction from aquifers that are not beneath their land. States differ on the specifics for off-tract users, and some allow exceptions to the rule.
Public Water Rights
The above doctrines generally apply to private landowner water rights. However, often these rights intersect or conflict with public water rights, leading to disputes and sometimes litigation. There are four types of public water rights classifications:
- Navigable waterway access
- Reserved water rights
- Public trust doctrine
- Public interest protections
In the past, public interest included private economic benefits from water use, such as the accessibility of navigable waters for commercial purposes. As environmental concerns grow and public interest in water protection and conservation increases, these issues are often brought to the table when considering water rights, access, and use.
The primary system states use to grant water rights and access is a permitting system. Depending on the state, overlying landowners may not require a permit to access water. Water rights attorneys are often heavily involved in the permitting process. They work with clients on completing permit applications, ensuring they meet the regulatory requirements and include all necessary components of the application.
They can also help negotiate permit conditions with the permit-granting agency to improve permitting terms and conditions. If the permitting agency returns with unsatisfactory conditions, water law attorneys have the experience and legal knowledge needed to challenge the permit stipulations. Water law attorneys also represent their clients in the public approval phase of the application process.
If you need the help of an experienced attorney, contact the team at Phillips Law Group today. We can schedule a free, no-obligation consultation with you to discuss your situation.
In addition to obtaining use permits, numerous entities and individuals must comply with various statutes regulating water. These laws don’t just govern access and rights; they also regulate wastewater, water treatment, water quality, and point source water pollution. These laws impact numerous industries, which must adhere to standards that ensure water, environmental, and public health safety.
Water law attorneys can help clients implement their permits to comply with water rights laws and permitting conditions. They are often involved in developing conservation plans that meet regulatory requirements and mitigation strategies to reduce the negative impacts of industry operations. Agriculture, construction, and manufacturing are three examples of industries that rely heavily on water law attorneys to ensure they comply with water regulations.
The federal government and state governments enact and enforce water laws. Counties and municipalities may have additional requirements and constraints. Ensuring compliance often requires an in-depth understanding of the structure and intersections of multiple levels of regulation.
Two primary federal laws establish the framework, guidelines, and requirements for water quality:
- Clean Water Act: Implemented in 1972, the CWA provides an overarching structure for pollution and surface water quality regulations. The Environmental Protection Agency utilizes the CWA to set standards for water quality, pollution, and wastewater control for navigable and surface water sources.
- Safe Drinking Water Act: The SDWA, implemented in 1974, protects U.S. drinking water quality. The Act regulates all potential drinking water sources, regardless of whether they exist above or below ground. The law protects water sources from contamination, including from fluids injected into the ground.
These federal laws also serve as the basis for state laws that may impose tougher restrictions and guidelines on water quality.
State laws often drill down on guidelines for specific practices that may impact water rights, access, and quality. States implement codes for water supply and management, water treatment, wastewater protocols, stormwater management, and water pollution.
Counties and municipalities may implement additional regulatory requirements that add another layer to an already complex system. Often, efforts to comply at one level lead to compliance oversights at another level. An attorney can counsel clients on how to meet compliance requirements across all regulatory levels.
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