WSP09853 - Laserfiche WebLink

Home Browse Search

0031tJ8 IV. TYPES OF PROTECTION Legal schemes to provide area-of-origin protection can be divided into three general categories: prohibition or severe restriction, alloca- tion, and compensation. It is important to note that the approaches taken in many of the states involve some mixture of methods from among these categories. A. Prohibition or Severe Restriclion The most extreme form of protection is, of course, to prohibit any transfer of water outside the basin of origin. Examples may be found in most jurisdictions following the riparian doctrine and in the former law of Nebraska. Examples of major restrictions on such transfers are provided under the current law in Arizona and Montana. I. Riparian Law Riparian water law inherently provides built-in protection for the watershed because water use is generally permitted only (a) on ripa- rian land, by which is meant land alongside the watercourse, and (b) in the watershed of origin.7 Furthermore, in contrast to the appropria- tion doctrine, riparian law does not require water to be put to a benefi- cial use in order to establish the water right. In general, the riparian owner maintains an inchoate right to enjoy the benefits of water flow- ing past his land. Thus, if a city such as New York desires to obtain non riparian water, it must utilize its power of eminent domain and pay for the property value taken.8 2. The Nebraska Experience In 1889 the Nebraska legislature enacted the following provision: "The water appropriated from a river or stream shall not be turned or permitted to run into the waters or channel of any other river or stream than that from which it is taken or appropriated."9 An amend- ment in 1893 added: "unless such stream exceeds in width one hun- dred feet, in which event not more than seventy-five percent of the regular flow shall be taken." 10 In 1895 the Nebraska legislature en- acted some major changes in its water law which included the follow- ing provision: 7. C. DAVIS, H. COBLENTZ & Q. TITELBAUM, WATERS & WATER RIGHTS ~ 614.1 (E.R. Clark ed. '976). 8. In the ca..e of New York City, there is an additional statutory requirement which is discussed below under compensation. See infra text accompanying nole 48. 9. 1889 Neb. Laws ch. 68. ~ 6. ID. 1893 Neb. Laws ch. 40, 9 3 (codified as NEB. REV. STAT. ~ 46-206 (1984))