Because of a megadrought in the western United States, water has become such a scarce commodity that neighbors fight over irrigation ditches, and water cops patrol for water thieves.1 Wisconsin is fortunate. Bordered by the largest freshwater system in the world and home to 15,000 inland lakes, Wisconsin is water rich. But even where water is plentiful, it is not always evenly distributed, and Wisconsin faces challenges, too, as pollution, climate change, and competition for water exert pressure on the state’s regulatory systems.
In 2010, the United Nations officially recognized access to water as a human right.2 However, economic factors have historically played a large part in regulating water rights.
Where to Begin Research
Learning the topics that water may fall under and knowing the types of water will help direct research. Water law typically is indexed under property law, environmental law, and public health and welfare. Water is further divided by type. In Wisconsin, the five classifications for water are natural streams and lakes, artificial streams and lakes, diffused surface water, groundwater, and wetlands.3
Learning about some specific concepts and principles, as well as federal, state, and tribal doctrines, will help lawyers who are new to water-law research. There are also international and tribal treaties and agreements that are the foundation of water law. Fortunately, there are several books and “getting started” resources. Many of these are available online or for loan at a Wisconsin law library.
Water Law Research Guides
Libraries create research guides on legal topics to help patrons locate resources. This is a sample of guides on water law.
UW-Madison Libraries Research Guides, Water Law: Home, https://researchguides.library.wisc.edu/c.php?g=125280&p=819873.
Wisconsin Water Library, Water Research Guide: Home, https://researchguides.library.wisc.edu/waterscience. The library provides a Wisconsin Water Facts guide, https://waterlibrary.aqua.wisc.edu/water-facts/.
Pace Law Library Research Guide, Land Use, Planning, and Zoning Legal Research Guide: Water Quantity, https://libraryguides.law.pace.edu/c.php?g=319418&p=2133609.
Georgetown Law Library, Environmental Law Research Guide, https://guides.ll.georgetown.edu/environmental.
GW (George Washington) Law Jacob Burns Law Library, Clean Water Act (CWA), https://law.gwu.libguides.com/CWA/books-treatises.
All books listed in this article are available at a Wisconsin law library or online on a legal database.
General Books, United States
Sandra B. Zellmer & Adell L. Amos, Water Law in a Nutshell (West Publishing 6th ed. 2021). The sixth edition of Water Law in a Nutshell is a good place to start if you want an overview; it is available at the U.W. Law Library.
Duke K. McCall, The Clean Water Act Handbook (4th ed. 2017). This practice guide on the federal clean water statutes and the implementing regulations is available at the Wisconsin State Law Library.
Elgars Encyclopedia of Environmental Law (Michael Faure, ed. 2022) is an online resource. Volume 10 covers water law. The resource is available through the U.W. Law Library’s catalog.
Lexis+ has a multivolume treatise on water law, Waters and Water Rights (2022). It is also available at the Wisconsin State Law Libraryas a loose-leaf and electronically at the same library on Lexis Digital.
WestlawEdge also has a multivolume treatise, Law of Water Law Rights & Resources. This treatise appears within the category “Real Property Text & Treatises”; it also can be retrieved by entering the title into the search box.
To locate a title in Lexis or Westlaw, enter the title in the search box; select the book or treatise title from the drop-down menu that then appears.
Restatements & American Law Reports
Chapter 41 of The Restatement (Second) of Torts, “Interference with the Use of Water,” covers riparian rights. The Restatements are available at Wisconsin law libraries in print as well as online in the major legal databases. To locate them in a database, enter the specific title, “restatement of torts” in the search box, and then select the “content page” title. Open “Division 10: Invasion of Lands other than by Trespass” to locate chapter 41.
American Law Reports (ALRs). Knowing how water is classified will help you find reports in the ALRs, which are available online in Lexis+ and WestlawEdge and in print at the U.W. Law Library, the Wisconsin State Law Library, and Marquette Law Library.
Wisconsin Water Law Books
Paul Kent, Wisconsin Water Law in the 21st Century: Understanding Water Rights and Regulations (Madison, WI: Lake Mendota Publishing LLC 2013). Rumor has it that Kent is writing a new edition of this classic on Wisconsin water law.
Selecting the correct category will help narrow your search. For example, “water law” is a subject in the print digests but water types, such as “navigable waters,” are listed separately in the digests. Although the digests are not on legal databases, the case law is, and you can search by headnote or by water types for case law.
Journals and Periodical Databases
Use these databases to search for scholarly articles on a topic. Many articles are available in full text. Wisconsin lawyers can obtain a Wisconsin attorney library card by applying at https://wilawlibrary.gov/services/librarycard.html and then use these resources for free. To search for articles in the Index to Legal Periodicals or Hein Online Law Journals, go to this URL: https://wilawlibrary.gov/search/articles.html.
Index to Legal Periodicals: Full-text coverage for selected periodicals is available, coverage dates from 1908 to present.
Hein Online Law Journals. Full-text legal periodicals, historical texts, foreign and international materials, and primary legal materials in PDF.
Fastcase also has the HeinOnline Law Journal Collection; access is available for State Bar of Wisconsin members at www.wisbar.org.
HeinOnline Pathfinders. Pathfinders is a research tool in HeinOnline used to refine research by subject. To access, select “Law Library Journals”; at the top of the screen next to “Browse by” select “Pathfinders by Subject.” To find water law material, select the topic “Applied Sciences”; then open “Land & Resource Use.”
Title 33 of the U.S. Code contains the majority of federal water law code, beginning at 33 U.S.C. § 1251, including:
Title 16of the U.S. Code also includes regulation of water, for example:
Endangered Species Act,
16 U.S.C §§ 1531-1544.
Federal Power Act,
16 U.S.C. §§ 791a-823g.
Title 42 of the U.S. Code contains the Safe Drinking Water Act:
Safe Drinking Water Act (SDWA),
42 U.S.C. §§ 300f-300j-27.
Federal Agencies. The Environmental Protection Agency (EPA),https://epa.gov, provides laws and implementing regulations on its site. For a summary with links to the history of the Clean Water Act, see Summary of the Clean Water Act: 33 U.S.C. §1251 et seq. (1972), www.epa.gov/laws-regulations/summary-clean-water-act.
Federal Reports. Users can search for Congressional Research Service (CRS) reports online, athttps://crsreports.congress.gov/. Here are a few examples.
Wisconsin Laws and Regulations
Wisconsin, which has been regulating its waterways since it was a territory, has a duty to guarantee regulated water rights for the residents of Wisconsin. Read about Wisconsin’s waterway history in the Wisconsin Blue Book Online. Wisconsin Territorial Laws, https://docs.legis.wisconsin.gov/1840/related/territory_acts.
Wisconsin Territorial Laws. An early water law in pre-statehood Wisconsin was 1840 Territorial Laws, No. 48, An Act in relation to Mills and Mill Dams.
Wisconsin Constitution. The public trust doctrine is at Wis. Const. art. IX, § 1.
Wisconsin Water Law Statutes. All Wisconsin statutes are available in print copies of the Wisconsin Statutes and at this website: https://docs.legis.wisconsin.gov/statutes.
Water Law Doctrine Resources
Two important doctrines are riparian rights and prior appropriation rights. These doctrines grant private rights to water. Most states, like Wisconsin, follow the riparian doctrine, which grants water rights to landowners when their land is adjacent to a water source. In the West, where water is scarce, the states developed a doctrine of appropriative rights. However, a few Western states, such as California and Texas (and others), follow a dual system.
Riparian Rights. For a statutory definition of riparian rights, see Wis. Stat. section 30.132. This statute was recently amended, by 2021 Wis. Act 47, in response to a Wisconsin Supreme Court decision, Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807. The Wisconsin DNR also provides a definition of riparian rights, at Wis. DNR, Waterway Regulations and the Public Trust Doctrine, tinyurl.com/22y3hude.
Prior Appropriation. Prior appropriation is based on two principles: 1) everyone has the right to access to water, and 2) users of water are entitled to sufficient water to accomplish this purpose. Water use must also be reasonable and beneficial.
Colorado is unique because the judicial system administers the permit process and regulations. In Colorado, water permits are applied for at the Clerk of the Water Court.4 In other Western states, permits and the power to regulate are by agency.
Water Education Colorado has a citizen’s guide that covers the history and laws that make up Colorado water law, including the Colorado Doctrine, https://issuu.com/cfwe/docs/weco_cgwlaw_5thed_final.
Public Trust Doctrine. A guiding principle for water is the public trust doctrine. The public trust doctrine has roots in Roman law and English law. In Wisconsin, the public trust doctrine is part of the state constitution and is the foundation for the law of navigable waters in the state. To read about Wisconsin’s public trust doctrine, its origins, limits, and delegation of authority, see Wisconsin Legislative Council, IssueBrief,The Public Trust Doctrine,https://docs.legis.wisconsin.gov/misc/lc/issue_briefs/2019/environment_and_natural_resources/ib_public_trust_doctrine_ah_2019_10_01.
Tribal Rights to Water
The Winters doctrine,established by a U.S. Supreme Court decision in 1908, is the foundation of tribal rights to water. In Winters, the Supreme Court found that when the federal government created the Fort Belknap Reservation, it implicitly reserved the rights to water use in a sufficient amount for the reservation’s purposes. In riparian states, this often gives senior status rights to water to the tribes. See https://www.loc.gov/item/usrep207564/.
Tribal Treaties. HeinOnline offers the Statutes at Large. Vol. 7 is the Indian Treaties Collection (1778-1842).
Another source for tribal treaties is UW-Madison Libraries Research Guides, Native American Law & Legal Sources: Intro, https://researchguides.library.wisc.edu/nativeamericanlaw.
Wisconsin Agencies, Permits, and Reports
The Wisconsin Department of Natural Resources (DNR) issues water permits and has instructions on the permit application process on its website, https://dnr.wisconsin.gov/permits/water. Chapters 30 and 281 of the Wisconsin Statutes require that the public be allowed an opportunity to comment on projects. The site includes instructional videos on how to apply for a WAMS (web access management system) ID, start the process, and view public notices. The notice tutorial provides tips on how to refine a search.
Wisconsin Surface Water Reports to Congress
Water Laws of Other States and Nations
50 State Surveys on Water Law
HeinOnline‘s Subject Compilations of States Laws is available at the U.W. Law Library. To search, scroll to the collection, select “database” and then select “browse by subject” at the top of the screen and scroll to water law or related topics.
Lexis+: From the search box menu, enter “50 state surveys, statutes & regulations.” I found state surveys on water appropriation, drinking water, and reclaimed water.
WestlawEdge: Enter “50 state surveys” in the menu box or link directly to “Wetlands Laws: State Comparison Chart.”
The National Center for Manufacturing Sciences provides a free gateway to locate state laws, at www.envcap.org/srl/index.php#land.
Water Treaties Between Canada & the United States
There isn’t enough time or space to cover all international agreements on water, but listed below are a few that affect Wisconsin law.
Data, Land Maps, Survey Maps, Meander Lines & Statutory Lines
Here are a few online resources with detailed statistical information and maps.
1 See NPR, In a Dying Climate Colorado’s ‘Water Cop’ Patrols for Water Thieves (Oct. 11, 2018), www.npr.org/2018/10/11/654908677/in-a-drying-climate-colorados-water-cop-patrols-for-water-thieves.
2 The United Nations website further define those rights, “People are rights-holders and States are duty-bearers of providing water and sanitation services. Rights-holders can claim their rights and duty-bearers must guarantee the rights to water and sanitation equally and without discrimination.” www.unwater.org/water-facts/human-rights/.
3 Paul Kent, Wisconsin Water Law in the 21st Century: Understanding Water Rights and Regulations 6 (Madison, WI: Lake Mendota Publ’g LLC 2013).
4 Sandra B. Zellmer & Adell L. Amos, Water Law in a Nutshell 4-6, 146-48 (West Publishing 6th ed. 2021).
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» Cite this article: 95 Wis. Law. 45-48 (May 2022).