GHOST RIGHTS TO WATER CAN BE SPOOKY--PART 2

In my previous post, I discussed "ghost" water rights held by landowners. These are rights to divert water from streams and lakes that were established prior to governmental regulation and permitting of such diversions.

Ghost-like water rights also can arise under different scenarios. One reported example is the dispute between the states of West Virginia and Maryland over water rights in the Potomac River.* West Virginia has sought to take additional water from the river for a proposed new manufacturing plant in that state. Maryland has objected to such an additional take. In 1933, Maryland began regulating
withdrawals from the river by users out of state. West Virginia has claimed that such control is limited by a 1785 compact negotiated by George Washington and a 2003 U.S. Supreme Court decision which enabled the state of Virginia to have water rights in the river.

Earlier this year, a South Dakota tribe of native Americans living along the Missouri River filed suit against the United States seeking $200 million as compensation for alleged violations of water rights.** The complaint is premised on a 1908 U.S. Supreme Court ruling that the establishment of a land reservation for native Americans includes an implied reservation of water rights for the benefit of the tribe. The claim is alleged that water rights to the river given by the United States to others were not legal.

Fresh water is a scarce but indispensable commodity. Accordingly, what these examples illustrate is that sharing of water sources can be a contentious exercise. If sharing cannot be accomplished by agreement or compact, governmental regulation and ultimately litigation appears to be a necessary and likely consequence.

______________________________________________

*Terlep, "P&G Caught in Water-Rights Feud",
Wall Street Journal, November 26-27,2016,
p. B3

**Tupper, "SD Tribe Wages $200M Water Fight",
Rapid City Journal, November 13, 2016,
p. A1

© Daniel J. Kucera 2016