Special Topics in Environmental Management

Green infrastructure and water rights

In some areas, water is a limited resource, and complex water laws have been established to define rights to water. Every state has different laws and policies in place, and some of these laws are evolving to reflect the importance of green infrastructure. But if you are located in one of these states, how do you know that the practice you are implementing is in compliance with your applicable water rights laws?

Research the law on the both the state and local levels. In the West, water rights law is based on the doctrine of prior appropriation which basically means “the first in time” is the “first in right”. The doctrine gives the right to use the water to the first appropriator who puts the water to beneficial use. This “senior appropriator” has the right to use the water before later users (“junior appropriators”). Appropriation rights may be held by individuals, corporations, public utilities, partnerships, cities, state governments, and the federal government.

Each state’s system may affect green infrastructure differently, and in some places, not at all if the state has not implemented laws that regulate precipitation. In other states, precipitation is subject to appropriation and particular green infrastructure practices may be restricted or prohibited. For instance, in Colorado, once stormwater runoff is collected in a detention or infiltration area such as a rain garden, several water laws are triggered: the water cannot be used for any “beneficial use” such as irrigation, the runoff collected must be released to either a nearby surface water or infiltrated into the groundwater within 72 hours, and the rain garden must be designed to “minimize consumption from vegetation” and to infiltrate the water as quickly as possible.

Before designing a green infrastructure project, ask:

  • Does the state have jurisdiction over precipitation?
  • Does the green infrastructure project retain, use, or otherwise consume precipitation?
  • Will the design of the project affect the water rights of others?
  • Will this particular green infrastructure project require a water right?

Contact the agency in your state or locality that handles water rights issues. Project designers should contact any regulating agencies to find out what water rights may apply and if there are permits that are required when developing a project that integrates green infrastructure practices.

Understand what projects have already been completed in your state or region. Some states actively encourage green infrastructure. In California, rainwater harvesting programs are popular, while in Oklahoma and Nebraska, roof gardens are gaining popularity.

Amanda Czepiel, J.D., is a Legal Editor for BLR’s environmental law publications. Ms. Czepiel has over 8 years of experience as an attorney and writer in the field of environmental compliance resources and has published numerous articles on a variety of environmental law topics, including wastewater and NPDES permitting, brownfields and contaminated sites remediation, oil spill prevention, wetlands, and corporate sustainability. Before starting her career in publishing, Ms. Czepiel worked in hospitality consulting and for various non-profit organizations and government agencies in the environmental field. Ms. Czepiel received her law degree from the University of Connecticut School of Law.

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