Publications: Water Law


Waters of the United States: Timeline of Definitions

Brigit Rollins, National Agricultural Law Center

The term “waters of the United States” is a central component of the Clean Water Act (“CWA”), the federal statute that regulates water pollution in the United States. Knowing which waters are “waters of the United States” (“WOTUS”) and which are not is critical because only waters that fall into the definition of WOTUS are subject to the CWA. However, the definition of WOTUS has shifted many times since it was initially defined in 1973. This has resulted in a patchwork of regulations that can sometimes make it difficult to determine whether a waterbody is a WOTUS. The following is a timeline tracking the various changes to the definition of WOTUS. Identifying when and where each definition of WOTUS is applicable can help bring clarity to a shifting regulatory landscape. Download this article. Posted 4/21/20


Exempt Wells and Agriculture

Jesse J. Richardson, Jr. & Iris Aloi, West Virginia University College of Law

In some states, primarily in the western United States, the doctrine of prior appropriation is used to determine water rights.  Generally speaking, under this doctrine the first landowner to divert the water to beneficial use gains priority right in the amount that is used. In times of shortage, the first user gets all of the water to which he is entitled, the second user gets all of their water, and so on, until there is no more water to appropriate. However, some states have created exemptions from this doctrine for certain types of wells, known as “exempt wells,” which typically withdraw only limited quantities of water or wells used for specific purposes, such as domestic use or livestock watering.  This paper discusses the allowances for exempt agricultural wells in the states that allow them, via an explanatory text and a table that allows comparison between the states. Download this article. Posted 5/18/17


Water Rights Table

Jesse J. Richardson, Jr. & Iris Aloi, West Virginia University College of Law

This publication consists of two tables with information regarding water rights among the states. Table 1 summarizes each state’s common law water rights for both surface and percolating ground water, as well as whether the state has statutory rules that modify the common law rule.  Table 2 briefly summarizes the type of regulated riparian requirements, the threshold at which the requirements apply, grandfathered water withdrawals and exemptions for those states that have regulated riparian rules.  Download this article. Posted 5/18/17

State Listings: Water Law Offices

L. Paul Goeringer and Angela Boyd Research Associates National Agricultural Law Center

This publication provides a state-by-state listing of the agencies responsible for water resources and environmental quality.  Click on the hyperlinked agency name to be transferred to the appropriate agency site.        Download this article. Posted: March 25, 2009.

How the Concept of Navigability May Determine the Rights of Landowners Along Streams

J. W. Looney Distinguished Professor of Law, Emeritus University of Arkansas School of Law

This article provides an overview of how the varying definitions, interpretations, and concepts of navigability may be applied in determining the rights of landowners who own land along streams or land through which streams run.  The article explores the historical development of the definition of a navigable stream and how the question of navigability can determine a landowner’s rights to the stream bed.  In addition, this article discusses the rights that members of the public may have to use a stream for recreational purposes and examines the question of whether a stream must be navigable before the government can implement regulatory controls.   Download this article. Posted: Aug. 27, 2002.