Jesse James Richardson, Jr. Paper: 'Postcolonial Evolution of Water Rights in India and the United States'

Jesse James Richardson, Jr. is one of the smartest water lawyers I know. He is also a delightful speaker so if you get a chance to hear him speak, do so. He and the equally-talented Tiffany Dowell Lashment are giving a free webinar on 2 May: 'Water Wars in the United States Supreme Court: Why Should Agriculture Care?' Sounds good!

But the reason for this post is not to promote the webinar but a paper by Jesse that is a chapter in the book by S. Pellissery, Benjamin Davy, and Harvey M. Jacobs (eds.), Land Policies in India, India Studies in Business and Economics, DOI 10.1007/978-981-10-4208-9_3 

Download JJR_Water_Rights_Paper

Here is the introduction:

Introduction

Both India and the United States adopted the English common law for water rights upon gaining independence from England, although these events occurred 171 years apart (1776 in the United States, and 1947 in India). By the time India gained independence in 1947, many states in the United States had already evolved away from the English common law for water rights, particularly with respect to groundwater. However, to this day, most states in India have not altered the English common law, despite several prominent problems. This chapter explores the evolution (or lack thereof) of water rights in both countries and attempts to explain the stark differences.

First, the chapter reviews general demographic and water use data from each country to compare the two. Second, a Virginia case is used to illustrate the issues when deciding whether to adopt the English common law. Although the case focuses on groundwater rights, its analysis applies to a broad spectrum of cases. Indian cases do not engage in such analysis, perhaps due to the India Easements Act of 1882.

Next, the chapter addresses surface water. States in India and the eastern United States use riparian rights adopted from the English common law. States in the western United States have, for the most part, rejected riparian water rights for prior appropriation, explaining that the conditions in those states differ so much from the conditions in England that a riparian right approach is not appropriate. However, some western states still recognize riparian rights that were established prior to the switch to the prior appropriation doctrine.

Although states in India may recognize that riparian rights fail to adequately address the Indian reality, the country appears to still prefer the “natural flow”theory (Karathigundi Keshava v. Sunnanguli Krishna Bhatta 1945). The natural flow theory gives the landowner the right to the full flow of the watercourse. Most states in the United States have switched to the “reasonable use” rule, allowing some reasonable reduction in flow for use of the water by upstream owners.

Next, the chapter discusses percolating groundwater (groundwater not in iden- tified streams or channels). In contrast to surface water, percolating groundwater is considered part of the soil under the absolute dominion rule. This rule, as first stated in Acton v. Blundell (1843), is referred to by American courts as the “English Rule.”In the United States, however, courts generally have adopted a less severe form of the rule, finding liability for the misappropriation of percolating groundwater only if the act was malicious (Kelly 2016).

In the early 1900s, American courts began to evolve away from the English Rule, with many courts adopting the reasonable use rule, also referred to as the“American Rule.” The American Rule limits how water withdrawn from a property may be used (Ibid). In contrast, states in India have remained committed to the absolute dominion rule as stated in the English common law.

The chapter then moves to a discussion of statutory and policy changes to the common law in each country. Both countries have utilized a form of “regulated riparianism” by adopting policy, statutory and regulatory programs to supplement the common law. In India, this movement takes the form of state water policies, guided by a National Water Policy. Most Indian state water policies parallel the 2002 National Water Policy (Government of India, Ministry of Water Resources 2002), which is remarkably similar to the statutes passed in eastern states in the United States. Both provide priorities for water use and allocation (Richardson 2015).

Finally, the chapter concludes by presenting lessons learned from the different paths of the two nations. These lessons can help both nations develop more sustainable water rights systems.

This is a fascinating study, well worth your time.

Enjoy!

"You are piling up a heritage of conflict and litigation over water rights for there is not sufficient water to supply the land". John Wesley Powell, 1893.

Comments

[Jesse Richardson]

Thanks Michael! I enjoyed writing it.