Legal Considerations

• Lecture Outline

– Allocation of water resources

– Regulations

How laws affect fisheries management

1) Prescribing rules to resolve conflicts

2) Balancing the powers of government branches

3) Defining the powers of the central government

4) Describing the boundary between legal and political issues

Allocation of water resources

1) Riparian doctrine – “persons owning land that abuts a surface body of water have the right to use that water”

a) Non-riparian land owners must rely on groundwater

b) Natural flow rule – landowner is entitled to use the water in a stream or lake as long as the water body remains substantially undiminished (run-of-the-river basis)

c) Reasonable use rule – riparian landowner may use water as long as that use is reasonable

i) Reasonableness depends on other uses of the stream

d) Little legal leverage for fisheries managers

2) Appropriation doctrine - The first person to put water to a “beneficial use” on a stream has the best right to use that water

a) “first in time is first in right”

b) Measure of water use is not land ownership

c) Water rights are private property that may be sold and moved

d) Instream flows ARE recognized as beneficial use of water

i) Appropriations of water allowed for instream uses

ii) Amount of water set aside that cannot be used for water rights

iii) Special requirements placed on diversionary water rights

Other doctrines

1) Public trust doctrine

a) Governments hold fish and wildlife in trust for the people

b) Geer vs Connecticut (1896)

c) Poor management = Failure to consider public trust?

2) Takings doctrine

a) Private property cannot be taken by the government without just compensation

b) Federal law that reduces property value?

3) Federally reserved water rights

a) Enables federal government to obtain water rights in appropriation doctrine states even though those rights may have lain dormant for years

i) E.g., indian reservations, national parks, monuments,

Interstate compacts

1) Authorized by Constitution

2) Operates as a treaty between states and requires consent of Congress

3) Supreme Court or Congress can apportion water if disputes occur between states

Federal Regulation

1) Fish and Wildlife Conservation Act (FWCA) – agencies undertaking water development activities must consult with the U.S. Fish and Wildlife Service, National Marine Fisheries Service, and state fish and wildlife agencies

a) USFWS, NMFS, and state can propose mitigation or compensation

2) National Environmental Protection Act (NEPA)

a) Federal agencies need to prepare environmental impact statements for “major Federal actions significantly affecting the quality of the human environment”

b) Individuals can sue agencies that do not comply with NEPA

3) Clean Water Act

a) Pollution – man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water

b) Section 404 – requires developers to acquire a permit from ACE before discharging dredge or fill material into the waters of the United States.

4) Rivers and Harbors Act of 1899

a) Section 10 prohibits the unauthorized construction in, or alteration of, any navigable water of the United States.

5) Anadromous Fish Conservation Act

a) Provision to develop research across state boundaries

6) Federal Aid in Fish Restoration Act

a) Dingell-Johnson Act (initial)

b) Wallop-Breaux Act (amended)

c) Provides federal aid for the management and restoration of fishes

d) Excise tax on fishing equipment, boats, motors, and boat fuel

Harvest regulation

1) Power of state fish and wildlife agency is derived from the trust responsibility to control resources for the public

2) Regulation of fishing is guided by a management philosophy