Posted on November 30, 2007 by Brian Rosenthal
With some exceptions and common law developed standards, Arkansas has traditionally followed the reasonable use theory of the riparian doctrine. A riparian user must use water in a manner that is reasonable compared to others’ rights (including as to ground water).
As a mid-south state, Arkansas receives a moderate amount of rain per year (approximately 49.19 inches on average since 1895 compiled from the Arkansas Natural Resource Commission’s Arkansas Ground Water Protection and Management Report for 2006). Stress on the amount, use of and quality of its underground aquifers, primarily in east and southeast Arkansas, have resulted in increased scrutiny and planning for alternate water sources, including from conservation, recovery and surface water.
Arkansas has no current active system in operation for regulating water usage. The Arkansas Natural Resources Commission, however, is directed to monitor our state’s water resources and can set minimum streamflows by rulemaking (but this step requires consultation with other state agencies). Water needs to be considered are domestic and municipal water supplies; agricultural and industrial; navigation; recreational; fish and wildlife and other ecological needs. The regulations and laws describe preferences and priorities, but are untested in practice.
Minimum streamflows are to be set on a case by case basis, defining such stream flows as the “quantity of water required to meet the largest of the following instream flow needs as determined on a case-by-case basis:” (1) interstate compacts, (2) navigation, (3) fish and wildlife, (4) water quality, and (5) aquifer recharge.
After minimum flows are established, non-riparian permits may be applied for from “excess surface water.” Excess surface water means twenty-five percent (25%) of the amount of water available on an average annual basis from any watershed basin above that amount required to satisfy all of the following:
1. Existing riparian rights as of June 28, 1985
2. The water needs of federal water projects existing on June 28, 1985
3. The firm yield of all reservoirs in existence on June 28, 1985
4. Maintenance of instream flows for wish and wildlife, water quality, aquifer recharge requirements, and navigation
5. Future water needs of the basis of origin as projected in the State’s Water Plan
6. Additionally, in the White River Basin, permitted transfers may not exceed on a monthly basis an amount that is 50% of the monthly average.
Minimum streamflow is important because of its relevance to the Commission’s planning in the case of a possible shortage. Separate and apart from its use in this way, minimum streamflows are also used to determine when excess surface water is available for transfers to nonriparians.
These standards may be reviewed in the near future to begin establishing minimum streamflows and potentially, associated protected levels, which the Commission may attempt to implement by rule under shortage conditions. The White River is scheduled as the first river to be reviewed in conjunction with the Memphis District Corps of Engineers’ Grand Prairie Area Demonstration Project. While such irrigation projects were unusual in eastern states, another such project is on the horizon with the Corps’ November 2007 Record of Decision issued for the Bayou Meto Basin of Arkansas.
Thus, Arkansas’s riparian rights doctrines are yielding to state systems of oversight based on depleted aquifers and increased demands. For more information on Arkansas’s water resources and rules, click here.
Tags: water rights