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Alternatives to Riparian Doctrine
Large Basin Water Quantity Management
Great Lakes Drought Planning



MODELS


Alternatives to Riparian Doctrine
The application of riparian doctrine to water rights is not universal in the United States. Other state models include prior appropriation doctrine or permitting systems. The doctrine of prior appropriation is most-frequently applied in states west of the Mississippi River. For example, Colorado applies the doctrine to every natural stream, but not to nontributary waters. The state's constitution specifies the "right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied," and the "priority of appropriation shall give the better right."94 Water rights must be affirmed by a court decree, based upon a manifested intent by the claimant to establish a conditional right of appropriation. A direct flow decree identifies the quantity secured by a water right.95 In 1995, the Colorado Supreme Court declined to inject environmental factors into the adjudication of a conditional water right, observing that "[c]onceptually, a public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory authority, deny a legitimate appropriation based on public policy." 96

In 1957, Iowa joined the states which have a permitting system for water allocation. The Iowa system applies both to surface and ground water. "The system was designed to replace the vague common-law riparian doctrines that Iowa courts had relied on in deciding water use disputes." Uses requiring less than 25,000 gallons a day are unregulated. A detailed system is devised for obtaining permits, including usage priorities. "The foundation for the state permit system is found in [Iowa Code] §455B.262 which states that in order to protect the common interests of the people of the state, the power to control the allocation and use of water resources must be vested in a single state agency, responsible for surveying the water resources of the state and the demand on those resources." The system is administered by the Iowa Department of Natural Resources.97


Large Basin Water Quantity Management

The Missouri River Basin presents a model for multi-state water quantity management which varies significantly from what has been applied in the Great Lakes and St. Lawrence River Basin. Stressed by the demands of World War II, major flooding along the Missouri River in the spring of 1943 provided the immediate impetus for federal legislation governing the basin. Within 90 days after the floods, Col. Lewis A. Pick of the Army Corps' Missouri River Division prepared a proposal (the Pick Plan) to construct 15,000 miles of levees on both sides of the river from Sioux City to the river mouth, seven reservoirs on tributaries, and five major dams on the river mainstem. A few months later, the Bureau of Reclamation published a competing proposal (the Sloan Plan) for 90 reservoirs and the addition of 4.7 million acres of irrigation. While the Pick Plan focused on flooding and was supportive of lower river-navigation, the Sloan Plan was more focused on drought and upper-river irrigation.98

The Pick Plan and the Sloan Plan formed the backdrop for the Flood Control Act of 1944.99 The legislation included most projects from both. "Perhaps the principle controversy to arise during the legislative debate was whether the upstream consumptive water uses would have priority over the downstream use of water for navigation."100

An amendment to the original bill provided that when a conflict arose between irrigation or other historic upstream consumptive uses, and downstream navigation, the upstream interests would be entitled to a preference.101 Debates as to allocation of water in the Missouri Basin since enactment of the federal legislation include those derived from Native American claims, state or federal ownership of excess water held in reservoirs, possible water apportionments, and the emergence of recreational demands.102

Great Lakes Drought Planning

Following the 1988 drought, the Great Lakes Commission compiled a guidebook designed to strengthen the region's ability to anticipate and respond to drought and its impacts on Great Lakes water levels. The guidebook includes impacts and specific responses made by the eight Great Lakes states and Ontario to the 1988 drought. Reference is made to how each state monitors and declares droughts, including overviews of state water rights laws. A model is provided for developing or amending a drought management plan. Key state and provincial agencies are referenced for drought planning.103

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