1、ASCEEWRI 40-03 American Society of Civil Engineers Regulated Riparian Model Water Code ASCE ASCWEWRI 40-03 American Society of Civil Engineers Regulated Riparian Model Water Code ASCE Published by the American Society of Civil Engineers Library of Congress Cataloging-in-Publication Data Regulated ri
2、parian model water code American Society of Civil Engineers. p. cm. - (ASCE standard) “EWRI.” “This document uses both Systme International (SI) units and customary units.” Includes bibliographical references and index. “ASCEJEiWRI 40-03.” ISBN 0-7844-068 1-2 1. Riparian rights-United States. I. Ame
3、rican Society of Civil Engineers. II. Environmental and Water Resources Insti- tute (U.S.) KF45.R44 2003 346.730432421 2003052210 American Society of Civil Engineers 1801 Alexander Bell Drive Reston, Virginia, 20191-4400 www.pubs.asce.org Any statements expressed in these materials are those of the
4、indi- vidual authors and do not necessarily represent the views of ASCE, which takes no responsibility for any statement made herein. No reference made in this publication to any specific method, product, process, or service constitutes or implies an endorsement, recom- mendation, or warranty thereo
5、f by ASCE. ASCE makes no representation or warranty of any kind, whether ex- press or implied, concerning the accuracy, completeness, suitability, or utility of any information, apparatus, product, or process dis- cussed in this publication, and assumes no liability therefore. This information shoul
6、d not be used without first securing competent ad- vice with respect to its suitability for any general or specific appli- cation. Anyone utilizing this information assumes ali liability arising from such use, including but not limited to infringement of any patent or patents. ASCE and American Soci
7、ety of Civil Engineers-Registered in U.S. Patent and Trademark Office. Photocopies: Authorization to photocopy material for internal or personal use under circumstances not falling within the fair use pro- visions of the Copyright Act is granted by ASCE to libraries and other users registered with t
8、he Copyright Clearance Center (CCC) Transactional Reporting Service, provided that the base fee of $18.00 per article is paid directly to CCC, 222 Rosewood Drive, Danvers, MA 01923. The identification for ASCE Books is 0-7844- 0681-2/04/$18.00. Requests for special permission or bulk copying should
9、be addressed to Permissions many of these people also at- tended two or more meetings per year where the drafts were discussed in detail. Each person who contributed to this project probably could pick at least a few points where he or she thinks the end products could be improved-the end products a
10、re not any single per- sons efforts, interests, or conclusions. Those involved in the project agree that overall the end products are carefully balanced to represent a coherent body of law that would markedly improve the law of water alloca- tion as presently found in many States. (The term “State”
11、is used throughout this Code to refer to a State of the United States, and not to states in the interna- tional sense, although states in the international sense might also find much of use in this project.) Originally, the hope was to prepare a single Model Water Code that would be appropriate for
12、any or every State. While there has been notable convergence among the water laws of eastern and western States over recent decades, there continues to be more diver- gence than convergence, a divergence that almost certainly will continue for many years. It proved im- possible to craft a single cod
13、e appropriate for all the States. In the end, two different Model Water Codes were prepared, reflecting the different needs and legal traditions of eastern States and western States-the Regulated Riparian Model Water Code and the Appro- priative Rights Model Water Code. The original goal is reflecte
14、d in that each Code contains as much language identical to that in the other Code as possible. A legis- lature considering revising its water laws should exam- ine both Model Codes. In part because of the decision, made fairly late in the drafting process, to prepare two Model Water Codes, the proje
15、ct remained unfinished when Professor Davis retired from Brigham Young University. In Au- gust 1995, Professor Joseph W. Dellapenna of the Vil- lanova University School of Law succeeded Professor Davis as director of the project. Professor Dellapenna had chaired the working group that drafted the Re
16、gu- lated Riparian version of the Model Water Code. The other members of the working group were Robert Abrams, Jean Bowman, Gary Clark, William Cox, Stephen Draper, and Wayland Eheart. This document is the final report of the Regulated Riparian Model Water Code. The final draft of this report was su
17、bject to independent review by three prominent experts in eastern water law who had not been actively involved in the drafting of the Model Codes. They were Mar- shall Golding, a professional engineer from Pennsylva- nia, and two law professors, Robert Beck of Southern Illinois University and Earl F
18、inbar Murphy of Ohio State University. Thereafter, the report was adopted by the Water Regulatory Standards Committee as a pre-standards document and submitted to a written ballot by the en- tire Committee. Although each section of the proposed standard (the Regulated Riparian Model Water Code) was
19、approved overwhelmingly on the first written ballot, it required two further ballots to resolve the negatives that were cast against certain sections. That process was completed by the report distributed on August 21,2001. Thereafter the code was approved by public ballot. The remainder of this Pref
20、ace will ex- plore in more detail why the Water Laws Committee of the ASCE decided that two versions were necessary. Water Codes proved necessary requires some under- standing of the path by which States east of Kansas City created a highly administered regulatory approach to water allocation within
21、 the State, a path quite differ- ent from the path followed in the States west of Kansas City. While States to the west of Kansas City experi- mented with private property systems that coalesced into the doctrine of appropriative rights, States to the east of Kansas City continued to adhere to the c
22、ommon To understand why two complete, separate Model vii PREFACE property model of common law riparian rights. See Joseph Dellapenna, Riparianism, in 1 Joseph Dellapenna, Eastern Water Law: Regulated Ri- parianism Replaces Riparian Rights, in THE NATURAL RESOURCES LAW MANUAL 317 (Richard Fink ed. 19
23、95). Alaska was the latest western State to switch from riparian rights to appropriative rights. Alaskas legislature purported to abolish riparian rights, although no court has yet considered whether this suc- ceeded. At this time, therefore, one must conclude that the question of whether Alaska is
24、a “pure” appropria- tive rights State or is, in fact, a dual system State must be regarded as unresolved. See California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935); Dellapenna, 0 8.02. As eastern States have become disenchanted with common-law riparian rights, they have not
25、embraced appropriative rights. Instead, eastern States developed a highly regulated system of water administration based on riparian principles that could best be de- scribed as a system of public property. Regulatory an- tecedents to regulated riparianism go back to colonial times in several States
26、. See Dellapenna, QQ 9.01,9.02. Initially, the transition from extremely limited regula- tory intervention to more or less comprehensive regulation resulted from incremental changes in earlier systems rather than a conscious design to revolutionize the system of water rights. As a result, there is d
27、is- agreement over when to date the emergence of the fiist true regulated riparian system. Nor is there a fully agreed upon name for the new system, although regu- lated riparianism appears to be about as succinctly de- scriptive as one can hope. Suggested alternative names have serious defects. “Ea
28、stern permit systems” or the like tells us nothing about the nature of the legal regime and leaves one more open to the charge that the new system has taken rather than regulated pre-exist- ing property rights. “Nontemporal priority permit sys- tems is more immediately descriptive than “regulated ri
29、parianism,” but it is rather too much to expect people to say frequently and also leaves more room for the al- legation that property was taken by the legislation. The name “regulated riparianism” emphasizes both that the administrative permit process proceeds on essentially riparian principles and
30、that the new system is a regula- tion of rather than a taking of the older riparian rights. See id. Q 9.01. The transition to the true regulated riparian system occurred by 1957 when Iowa adopted a fully regulated system, although the realization that something truly new in water law had emerged did
31、 not occur for an- other several decades. Little has been written about the new system, and most of what has been written has been reportorial rather than analytic. See, e.g., Richard Ausness, Water Rights Legislation in the East: A Pro- gram for Reform, 24 WM. Peter Davis, Eastern Water Diversion P
32、ermit Statutes: Precedents for Missouri, 47 MO. L. REV. 429, 436-37 (1982). Such writers have tended to see the statutes as a mere modification superimposed on the ri- parian rights that they see still as the core of the law in these States. Others have construed regulated riparian statutes as inart
33、fully drafted appropriative rights statutes. See, e.g., Frank Trelease, A Water Manage- ment Law for Arkansas, 6 U. ARK.-L.R. L.J. 369 (1983). Neither set of commentators realized that regu- lated riparian statutes represent a truly different model of water law. See Dellapenna, ch. 9. The emergence
34、of a new form of water law was missed because the regulatory system was not intro- duced as a radical revision of the water law of a partic- ular state. In most States, it emerged gradually through a process of small legislative interventions that eventu- ally cumulatively did fundamentally change t
35、he water law of the state. As a result, it is sometimes difficult to determine precisely when, in a particular state, the transition from riparian rights to regulated riparianism occurred. In several States it is still unclear whether the law would better be described as still basically riparian rig
36、hts with limited legislative alterations or as regu- lated riparianism. As of 2002, approximately 17 states have enacted a regulated riparian system for surface waters, generally including underground water sources as well. Two other States apply a regulated riparian system only to underground water sources. Several States have not actually implemented the regulated riparian statutes on the books, and in several other states, the limitations on the reach of regulatory author- . VI11
