Lecture 4: Water Rights Flashcards
What are water rights?
According to Hodgson, water law and thus water rights reflect economic, social, and cultural perceptions of water. Also because of the dynamic complexities of the qualitative and quantitative aspects of the hydrologic cycle and different water systems, water law tends to be rather complex. So water rights can be simply understood as the legal right to abstract and use a quantity of water from a natural source. Water rights however go beyond an entitlement to a mere quantity of the simple chemical compound which is water: the flow of the water is also an important component of a water right. Water rights also refer to non-consumptive uses of water.
what is the main difference between common law and civil law?
the main difference is the role of the courts in the development of the common law (the judge-made law), alongside the enactment of legislation by the relevant legislatures. Civil law, in contrast, is subject to a much more significant degree of codification, and the courts are perceived as having a more interpretative role.
explain the doctrine of riparianism
this doctrine is part of the common law and it considers riparian rights as an integral part of the right of ownership of the land in question. Thus owning the land = owning the water. Yet, the use of water should be reasonable and used only for ordinary uses. The watercourse should be restored in volume and should be unaltered in character.
explain the doctrine of prior appropriation
this doctrine is part of the common law and according to this water rights are given to those who first used water, thus severing the linkage between land and water rights. Owning land does not entail owning the water on that land.
what are the water rights of public waters in the civil law tradition?
Public waters were those considered navigable or floatable and belonged to the national domain, thus their use required a government permit or authorization. These requirements to use public water can be seen as the precursor of modern water rights of that legal tradition.
what are the water rights of private waters in the civil law tradition?
private waters were those located below, upon, or along privately owned land. Thus the owner was recognized the right to use the water without any limitations. Often the right applied only withing the limits of that estate (Spanish water act).
why were modern water right introduced and what do they entail?
the need for modern water rights to govern water use and allocation arose from the context of increasing water demand, population growth, and changing patterns of use.
1980s: many water institutions took place globally, such as reforms of water rights and the establishment of RBOs (river basin organizations). Also as a response to increasing concern about water scarcity to increase efficiency in its use, in 1992 at the Dublin conference water was officially declared a finite, vulnerable resource, with an economic value in all its uses and as such a proper economic good.
So modern water rights introduced a formal and explicit water rights that clearly specify the volume of water that is subject to each right.
