The Role of
Water Rights and Georgia Law in Comprehensive
Water Planning for Georgia
A White
Paper to the Joint Comprehensive Water Plan Study
Committee by the Georgia Chamber of Commerce
Prepared By:
Gregory W.
Blount, Harvey A. Rosenzweig and David M. Moore, Troutman Sanders LLP; James F.
Renner, Golder Associates Inc.; James R. Wallace, Law Engineering and
Environmental Services, Inc.; Stephen Loftin, Georgia Chamber of Commerce;
Carol R. Geiger, Kilpatrick Stockton, LLP; Randall D. Quintrell, Sutherland,
Asbill, Brennan, LLP; Charles H. Hood, Georgia- Pacific Corp.; and Paul Bowen
and Doug Hopkins, Coca Cola Company March, 2002 958947_1.DOC 1
Brief In
Support of a White Paper to the Joint Comprehensive Water Plans Study Committee
by the Georgia Chamber of Commerce
I. Water Rights are Private Property
in Georgia
The United States Supreme Court has
stated, "the quality of being riparian . . . may be the land's 'most
valuable feature'”.1 Georgia courts have characterized water rights in Georgia
as a system of riparian rights vested in landowners. The courts have
characterized the Georgia concept as “natural flow subject to reasonable use.” 2 The concept that running water belongs to the
owner of the land on which it runs is also recognized in the Georgia Code. 3
Similarly,
groundwater belongs to the landowner
in Georgia. 4 The legislature has no
power to compel or interfere with the owner’s lawful use of water, except to
restrain nuisances. 5 Georgia’s Code has
merely followed and codified water law as developed by the courts. Water is an
attribute of private property, which the Georgia Courts have protected. 6 In
1997, the Georgia Supreme Court
stated, Rivers are of three kinds: 1st. Such
as are wholly and absolutely private property. 2d. Such as are
private property subject to the servitude of the public interest, by a passage
upon them. The distinguishing test between the two is, whether they are
susceptible or not of use for a common passage. 3d. Rivers where the tide ebbs and flows, which
are called arms of the sea.7
1 Oregon ex rel. State Land Bd. v.
Corvallis Sand & Gravel Co., 429 U.S. 564 (1977).
2 Hendrick v. Cook, 4 Ga. 241 (1848);
Pyle v. Gilbert, 245 Ga. 403 (1980). 3 O.C.G.A. § 44-8-1.
4 Stoner v. Patten, 132 Ga. 178
(1909). In Georgia, the owner of realty has title downwards and upwards indefinitely. O.C.G.A. § 51-9-9. 5O.C.G.A.
§ 44-8-3.
6 Robertson v. Arnold, 182 Ga. 664
(1936) (“The right . . .is inseparably annexed to the soil, and is parcel of
the land itself, and comes with the protection
of the Constitutional provision which forbids the taking of private property
for public purposes without just and
adequate compensation being first paid.”).
7 Givens v. Ichauway, Inc., 493 S.E.2d
148 (1997)(citing Young v. Harrison, 6 Ga. 130, 141 (1849))(emphasis added); See also, Price v. High Shoals
Manufacturing Co., 132 Ga. 246 (1908) (“Flow and use [of water] belongs to the land through which [it] passes, as
an incident, convenience, or easement which inseparably connects itself therewith as a part thereof, and
frequently gives or adds value thereto, and
is a private property right to the proprietor
thereof, within the protection of the Constitutional provision that private
property shall be forever held inviolate,
subject to the public welfare, and shall not be taken for public use without
compensation being first made.”)(emphasis added). 958947_1.DOC
2
While the right to water has sometime
been described as a “usufruct,” usufructs are nonetheless protected property
interests.8 Recently, the Georgia Court of Appeals stated:
This Court diligently protects the
sacred right of property owners to just and adequate compensation before
private property is taken or damaged for public purposes. And a leasehold interest,
including a usufruct, is a property right that cannot be taken for public use
without first paying just and adequate compensation. McGregor v. Board of
Regents, 249 Ga. App. 612, 548 S.E. 2d 116 (2001).
Thus, water rights are property rights
in the State of Georgia, protected by the Constitution, common law, and Georgia
Code. It is imperative that this protection continue for legal as well as
social and policy reasons. Georgia citizens have purchased land, constructed facilities
and engaged in farming and industry, in reliance on the legal precedent that
their water rights will be protected by law. Current and future land investments,
and investment for agricultural, municipal and industrial purposes depend upon
the ability of these land owners to utilize water. Any water allocation process
undertaken in Georgia must take into account the nature of water rights as
property.
II. Georgia’s Regulation of Surface
and Ground Waters Is an Adaptable System Consistent with Riparian Rights
The status of water rights as property
rights in Georgia should not alarm those concerned with protection of the
public interest. It is a tenet of Riparian common law and Georgia law that private
use may not unreasonably interfere with Riparian uses. The State may exercise
its police powers,as it does with regard to many
other private activities, in order to protect the public interest.
Georgia EPD is authorized, under the
State’s police powers, to regulate private and public use of surface and ground
waters. 9 Pursuant to the State’s police power, the Georgia Code 8 Franco’s
Pizza & Delicatessen v. Dep’t of Transportation, 178 Ga. App. 331, 343 S.E.
2d 123 (1986). 958947_1.DOC 3 regulates the exercise
of Riparian and groundwater rights, but does not presume to take ownership of the right to use water
away from Riparian landowners. Id. The common law as developed in the courts
remains intact.10 Georgia is thus known as a “Regulated Riparian” state.11
The State’s power to regulate uses of
the waterways does not come from any ownership of the waters by the State
itself. Moreover, it is not necessary for the State to own the waters in order
to regulate them. In its role as a protector and manager of the resource, the
State through its agencies is acting to protect the citizens. It is not acting
as a property owner to enforce a property right. Therefore, changes in the way
in which the State regulates withdrawers of water, dischargers of water and other users
of the waterways must be based upon addressing a need to protect the health,
safety or welfare of the citizens of Georgia. Although some commentators have
argued that the State of Georgia owns all waters and holds such waters of the
state in “public trust,” this approach applies at most to a very small portion
of Georgia’s tidewaters and marshlands.12 Public trust does not support
declaring all waters in Georgia a public resource, because the public trust
doctrine does not apply to
non-navigable waters. See David C.
Slade, Putting the Public Trust Doctrine to Work, at 13-30.
Thus, even if public trust concepts
were applicable to water in Georgia, it certainly would not apply to the large
number of Georgia waters that are non-navigable under O.C.G.A. § 44-8-5.13 Again,
a debate over water ownership does not advance the State’s legitimate interest
in protecting and preserving water for all citizens pursuant to its Police
Powers. 9 O.C.G.A. §§ 12-5-31, 12-5-96. 10 Pyle v. Gilbert, 245 Ga. 403 (1980).
11 Joseph W. Dellapenna, Regulated Riparianism, in WATERS AND WATER RIGHTS.
12 Only the Protection of Tidewaters
Act and the Marshlands Protection Act even allude to the “public trust” doctrine.
O.C.G.A. § 12-5-281; O.C.G.A. § 52-1-2. 13 Givens v. Ichauway, 493 S.E.2d 148
(1997). 958947_1.DOC 4
Therefore, it is important to view any
proposed changes in the Georgia Code addressing water issues as an exercise of
the State’s Police Power and judge such recommended changes on their efficacy
in protecting the health, safety and welfare of the citizens of Georgia. This
is not a contest between property rights of the citizens of Georgia and a property
right of the State. No such property right of the State is involved. Existing
statutes provide adequate authority for regulating water use in Georgia, and
have the benefit of over 25 years of implementation. The Chamber would not
disagree with assertions that there may be need for more regulatory or policy
refinements within the context of the current water withdrawal statutes. However,
the Chamber submits that all of the problems, issues, and special interests
raised by stakeholders regarding the committee’s work can be addressed through
the current water withdrawal statutory framework. Among the areas that the Chamber
sees a need for possible regulatory or policy refinement are as follows: A. Consumptive
and Non-Consumptive Uses. Currently, the Georgia statutes and regulations do not distinguish between
the consumptive and non-consumptive uses, although in some circumstances EPD
may take into account water consumption in the issuance of a water withdrawal
permit. Water uses which are not consumptive should be treated differently
under the existing statutes and regulations.
A policy promoting reuse of water as a non-consumptive use of water would
encourage conservation and reuse efforts.
B. Transferability of Water Rights.
Under Georgia common law, water rights are transferable.14 Georgia’s water
withdrawal statutes explicitly provide, however, for
transferability of water rights only
for permits for farm uses.15 An explicit provision authorizing the transfer of
water withdrawal rights for non-farm uses would promote the highest and best 14
Pyle v. Gilbert, 245 Ga. 403 (1980). 15 O.C.G.A. § 12-5-31 (a)(3) 958947_1.DOC
5
Economic it is important to view any
proposed changes in the Georgia Code addressing water issues as an exercise of
the State’s Police Power and judge such recommended changes on their efficacy
in protecting the health, safety and welfare of the citizens of Georgia. This
is not a contest between property rights of the citizens of Georgia and a property
right of the State. No such property right of the State is involved. Existing
statutes provide adequate authority for regulating water use in Georgia, and
have the benefit of over 25 years of implementation. The Chamber would not
disagree with assertions that there may be need for more regulatory or policy
refinements within the context of the current water withdrawal statutes. However,
the Chamber submits that all of the problems, issues, and special interests
raised by stakeholders regarding the committee’s work can be addressed through
the current water withdrawal statutory framework.
Among the areas that the Chamber sees
a need for possible regulatory or policy refinement are as follows:
A. Consumptive and Non-Consumptive
Uses. Currently, the Georgia statutes and regulations do not distinguish
between the consumptive and non-consumptive uses, although in some
circumstances EPD may take into account water consumption in the issuance of a
water withdrawal permit. Water uses which are not consumptive should be treated
differently under the existing statutes and regulations. A policy promoting
reuse of water as a non-consumptive use of water would encourage conservation
and reuse efforts.
B. Transferability of Water Rights.
Under Georgia common law, water rights are transferable.14 Georgia’s water
withdrawal statutes explicitly provide, however, for transferability of water
rights only for permits for farm uses.15 An explicit provision authorizing the
transfer of water withdrawal rights for non-farm uses would promote the highest
and best 14 Pyle v. Gilbert, 245 Ga. 403 (1980). 15 O.C.G.A. § 12-5-31 (a)(3) 958947_1.DOC
5 economic and social utility of water. Also, currently there are no restrictions
regarding transfer of water by municipalities, counties, and other units of
state government amongst different water purchasers from the public system. The
Chamber submits that since water is transferable as a matter of Georgia law,
that Georgia’s water withdrawal statutes and regulations should reflect
accurately this legal premise.
C. Involuntary Reallocation during
Shortages. The current Georgia water statutes and regulations do not adequately
specify the circumstances and conditions under which the EPD may reallocate
limited waters during a period of shortage. While the regulations do recognize
a priority of use, mirroring pre-established Riparian Common Law principles,
regulations do not provide enough specificity to provide any reliable or
certain basis on which a water user might expect or anticipate that this water
use might be restricted due to shortage. In addressing this single issue which
is of utmost importance to most stakeholders, the Study Committee could resolve
a significant amount of comment and concern regarding the current water use
statutory scheme.
D. Better Assessment of Existing Water
Uses With increasing pressure on water resources, and water in short supply in
many areas of the state, better data and information regarding all water uses
is necessary for EPD to make sound water management decisions. All
uses should be considered and assessed
in making permitting decisions.
E. Public Notice of Permit Actions Due
to the very serious implications of the loss of a water right, or a competing
right encroaching on an existing water use, more comprehensive
public notice procedures are necessary
to ensure that all affected entities are apprised of proposed water use
permits. The Chamber supports expanding the methods of public notice to include
mailing to nearby landowners who might be affected by a water use, and where 958947_1
appropriate, extending the period of public notice and the period during which
review of a permit decision can be sought. In expanding the extent of public
notice on permit actions, it is important that other interests not be
adversely affected. For example, a strict application of the Model Code in
Georgia may actually diminish the standing of some Riparian users in challenging other users.
CONCLUSION
In conclusion, Georgia’s current water
withdrawal statutes and regulations in conjunction with Georgia’s longstanding
Riparian Rights Common Law comprehensively deal with water supply issues. Any
change in the statutory scheme that alters the nature of property ownership in Georgia
will be met with costly litigation and may potentially constitute a taking of
property without just compensation. In accordance with the directive of Senate
Resolution 142, the Chamber encourages the Committee to consider approaches that
involve working within the current laws, and consider proposing a process for
defining DNR Regulations promulgated pursuant to Georgia’s water withdrawal
laws and, only if strictly necessary, propose amendments to the current statutory scheme which
has been designed in accordance with Riparian and property law. The Chamber
also submits that, in this era of ever increasing demands upon state resources
regarding water quality and supply, this state can ill-afford to completely
revamp Georgia’s water withdrawal program, and should not endeavor to do so
when there has been no indication that the current system is incapable of
addressing the problems at hand.
Source:http://www.troutmansanders.com/files/Publication/85f8e922-94a7-43dc-8964-bb235987ef42/Presentation/PublicationAttachment/c7c36361-7d8e-4f29-bdb5-25d2444b8287/art-pickett2.pdf
Comments
The EPA proposes expanding their clean
water act jurisdiction from navigable waters to all water. Georgia law-makers and county commissions
need to weigh in on this proposed power grab. We also need to see what Georgia
EPD has to say about this EPA advance. I
prefer banning the EPA from entrance to Georgia and entrusting this to the
Georgia EPD.
Norb Leahy, Dunwoody GA Tea Party
Leader
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