Reasonable use standard
From Water Wiki
The exact contours of "reasonable use" of water in each eastern state in the U.S. are impossible to draw with certainty. Courts take each case as they come and it isn't always easy or even possible to predict how the next case will turn out. The general idea is that the court will try to weigh the harm to one party against the benefits to the other party of using (or blocking) the water. This page presents some of the most authoritative attempts to summarize the doctrine. On another page, there are brief explanations of leading cases in North Carolina.
Summaries of the "reasonable use" standard
Prof. Dellapenna, reporter for the Regulated Riparian Model Code, summarizes the reasonable use standard in the eastern U.S. this way:
Basically, courts decide which use is unreasonably interfering with the other by comparing the cost to the plaintiff caused by the defendant’s conduct against the cost to the defendant of modifying her conduct to accommodate the plaintiff’s use. This often entails judicial consideration of the practicality of both users modifying their activities to achieve an optimum mix of uses. Although many observers assume that the rule of reasonable use requires pro rata sharing among competing users when there is not enough water to go around, that is not true . . . On the other hand, only minimal, if any, attention is given to such non-economic questions as the natural characteristics of the stream, general social concerns, or abstract justice. Use on non-riparian land,however, is per se unreasonable. Who began to use the water first [is ir]relevant.[1]
Weaknesses in the "reasonable use" standard
Prof. Dellapenna goes on to summarize problems with this standard.
Riparian rights has certain obvious weaknesses. Decisions are vague and unpredictable in any conflict over water. As in Harris, even long established uses can be cut off without compensation if a court decides that a recently begun use is more “reasonable.” Just as serious is the reality that courts cannot give a decision, even as between the litigants themselves, that will be good for more than the day on which it is given. If either of the competing uses changes physically or economically, the calculus of reasonableness changes, and what was hitherto a reasonable use may suddenly become unreasonable. The implications of this uncertainty are clear. If the exploitation of water requires significant capital investment, the inability of potential investors to keep others from preempting an investor’s uses will bring about under-investment in the resource.
Other problems include the lack of a process for managing water in times of extreme shortage or for otherwise protecting public values. The slow, laborious process of individual litigation doesn’t work well for such purposes, yet there is no mechanism for determining and reviewing the rights of all users on a particular watercourse. Courts normally consider only the interests of the parties to the actual litigation, and seem ill equipped to address unrepresented interests of riparians not participating in the suit, let alone the interest of the public generally. The lack of efficient, system-wide management also creates a systematic bias in favor of large users. Small users often will be less able to afford to litigate, or to organize collectively for litigation, if the water they need is taken by another, more affluent riparian. Furthermore, the balancing process generally strongly favors large users over smaller users. The economic value of the water to the large user usually will outweigh the economic loss of the small user. While smaller users can effectively aggregate their claims by receiving their water through a public system, the effectiveness of this approach is limited by legal doctrines limiting the “riparianness” of public systems.[2] Moreover, aggregation is brought about only through submission to yet a different sort of largescale enterprise.
Notes
- ↑ American Bar Association Section of Environment, Energy, and Resources, "Riparianism at the Dawn of the New Millennium," Joseph W. Dellapenna paper presented to the 2008 Eastern Water Law Conference, Charlotte, NC (May 1-2, 2008).
- ↑ Citing Pernell v. Henderson, 16 S.E.2d 449 (N.C. 1941). .
