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- Eastern water law has primarily been based on a system of riparian rights for surface water use, and Tennessee has mostly followed such a structure.
- Western states' water law and eastern states' water law have traditionally been very different, and largely remain so today.
In light of this system, many western states have understandably adopted rules, or their courts have instituted refinements, to limit changes in the manner or place of water diversions to prevent harm to the interests of junior appropriators.
Similar doctrines may govern groundwater as well as surface water in many of these states ( more below).
- Tennessee has followed this same eastern regulatory trend, but to a lesser degree of regulation than in many other states.
- However, of necessity, eastern states have been transitioning into a system of "regulated riparianism" as agencies, rules, and permitting come into play.
The right comes along with the land and does not depend on when the use begins or whether the use actually continues, in contrast to prior appropriation.
While treated as an interest in property, riparian rights are usually not absolute but are “usufruct” in nature (a strong right of usage, without undue diminishment, that is almost like ownership even if a state owns its waters).
Western water law assumes that there is insufficient water to satisfy all potential users. When supplies are insufficient, water users with older or more senior rights are allocated water on a priority basis ahead of junior water rights holders.Under this system, with population growth and a shortage of resources, and also with extensive federal and tribal lands and major federal involvement in water management in many systems in the west, there has been a long history of disputes in the west over this valuable and essential resource. Riparianism defines water use rights in association with ownership of land that abuts or underlies a surface watercourse.Each riparian owner can use water from the water body bordering or crossing his property.Such trends affecting and diminishing fresh water resources include: · Population growth and increased use demands; · Development patterns and urban sprawl; · Modern agricultural methods and expansion; · Pollution reducing suitable resources available; · Climate change and its potentially significant hydrology impacts (rainfall levels, drought, storms, snowpack, etc.); · Species protection and enhanced environmental and preservation values; and · Certain growing industries like energy development and their water needs.Before looking at the developing regulatory structures for managing water supplies and trying to avoid the “tragedy of the commons” (where everyone has the right to use something, until nothing is left for anyone), we must keep in mind that traditionally water resource issues were dealt with by the .
- Water quantity and water quality are also inexorably intertwined.