Thursday, June 15, 2017

Property in water and urban water supply

"New" Jersey City reservoir, c. 1880
Yesterday's This Day in Water History posted an interesting story on a 1919 fine handed down to Jersey City for using too much water, but both the original report and the commentary reflect some misunderstandings. The blog quotes an editorial on "Public Control of Water" from the Municipal Journal of June 14, 1919:
Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it. 
The right of state or federal government to guard the quality of river waters has been recognized and become familiar, and western states have long controlled the amount that could be withdrawn for irrigation; but limiting the amount that cities can use for their public supplies is a novelty. There is every reason, however, why power to limit the amount that can be used should rest in a central authority and be exercised on occasion. No one city has a right to monopolize a water supply because it “saw it first.” The water flowing in the rivers of a country comprises the run-off from every square foot of land in that country; and as the entire area yielded it, the entire area has a right in it. Moreover, to permit one or a few cities to monopolize all the water available in a state would be fatal to the growth in population and industrial development of the state outside of such cities.
The New Jersey plan seems to be a rational one and one that all states must adopt in some form, sooner or later; and the sooner, the less will be the confusion and individual hardship and the greater the benefit resulting therefrom.
The blog adds a commentary:
I do not know what action Jersey City took after being fined, but I can guess that they fought the fine in court. The water rights principle espoused in the editorial sounds more like a public trust doctrine which courts have only recently been applying to allocation of water rights in a river basin. 
Actually, all this is imprecise from a legal point of view (though conceptually perhaps not so far off). What was at issue was not a fine but a fee imposed on the city by the state Board of Conservation and Development for diverting water from the Rockaway River. The 1907 statute under which the fee was imposed allowed municipalities to continue diverting water as they had done before free of charge, but required them to pay a fee (one dollar per million gallons!) for increased diversions.

The city did indeed challenge this fee in court, leading to a decision of the state's Court of Errors and Appeals (the highest court in New Jersey), State v. Jersey City (111 A. 544 (1920)). The court explained that as the control of
the running streams, lakes and ponds within the borders of the state... rests in the state in its sovereign capacity, as representative of, and for the benefit of, the people in common, the only way in which a municipality can acquire the right to appropriate and use such waters is by a grant directly from the state itself....
It turns out that Jersey City was not the only New Jersey municipality unhappy with the 1907 law; Trenton and Newark went to court soon after Jersey City to challenge its validity, claiming it unconstitutionally took their property. The New Jersey court, in rejecting the claim (State v. Trenton (117 A. 158 (1922)), explained that the 1907 law served
to mark the parting of the ways between the legislative conception of the old order and the new; between a public policy which left the appropriation of the public domain to the haphazard necessities of sporadic local interests and a state-wide policy of conservation and distribution. 
On error to the United States Supreme Court, the decision was upheld, with the court citing the earlier Jersey City decision in support of the proposition (Trenton v. New Jersey, 262 U.S. 182 (1923), citations omitted):
The State undoubtedly has power, and it is its duty, to control and conserve the use of its water resources for the benefit of all its inhabitants, and the Act of 1907 was passed pursuant to the policy of the State to prevent waste and to economize its water resources. The only way the City could acquire the right to take the water of the Delaware River was by grant from the State or by authorized purchase or condemnation from one to whom the right had been granted by the State. The power to determine the conditions upon which waters may be so diverted is a legislative function. The State may grant or withhold the privilege as it sees fit.

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