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Show APPENDIX E LEGAL IMPLICATIONS OF IMPOSING WATER- USE FEES by Richard L. Dewsnup Dailin W. Jensen October 6,1975 LEGAL IMPLICATIONS OF IMPOSING WATER- USE FEES I. Preface This short paper examines the legal implications which necessarily would be encountered if a State were to implement a program of charging fees for the use of unappropriated water. The term " unappropriated" is used to distinguish such a program from those where fees are charged for water- use after the wholesaler or retailer of water has acquired appropriation rights under state law. The latter situation has been common for many years, by subdivisions of state government and by federal agencies. It should be noted that this paper does not purport to be an exhaustive analysis of the legal problems identified, but is, rather, intended merely to characterize the nature and substance of the basic legal problems identified. Moreover, problems which are peculiar to States having riparian water right systems are not within the purview of this paper, and any discussion of riparian right concepts of doctrines will be limited to their applicability to the legal concepts applicable to appropriation jurisdictions. Most of the discussion which follows will be applicable to appropriation States in general, but where specific focus must be drawn on a particular State for emphasis or illustration, Utah is the State most often selected. II. Ownership of Water Before anyone is legally entitled to " sell" anything, or to charge fees for its use, he must have owr° Tship or a degree of legal control which justifies the sale or charging fees for use. Thus, an initial question which must be addressed is the extent to which an appropriation State has legal ownership or control of water sufficient to allow it to impose water- use fees. There are a number of doctrines and concepts which must be noted. A. Source of State Ownership 1. Navigable Waters One aspect of state ownership is directly related to the concept of navigability. Ownership of navigable waters developed in large part from the law in England, as it pertained to the rights of the public, the Parliament, and the King in such waters ( Shively v. Bowlby, 152 U. S. 1 ( 1894)). The ownership rights of the Crown and Parliament were both in a proprietary and a governmental capacity, but they were subject to certain public uses for public purposes. The king could, at earlier times, make grants of the shores to private parties and extinguish public rights of use therein, but there is no authority indicating that he could sell, grant or otherwise dispose of the waters themselves. ( R. Hall, Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm, 106- 08 ( 2nd ed. 1875).) As a result of the American revolution, the thirteen colonies superceded the Crown and Parliament in all proprietary rights and regulatory powers over navigable waters; and, when these colonies formed the Federal Union, and thus became the original thirteen States, they did not surrender any ownership rights in waters, but they did grant certain regulatory power to the Federal Government over interstate and foreign commerce. ( U. S. Const., art. I, s 8, Para. 3). This constitutional power has been held to include regulatory authority over navigable waters ( Gibbons v. Ogden, 22 U. S. 1 ( 1824)), but only over those waters that are directly navigable in interstate or foreign commerce ( The Montello, 11 Wall. 411 ( 1870)). - 81 |
