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Permalink Reply by Wish You Knew on September 2, 2016 at 1:40

Do you own the water rights?

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Permalink Reply by Joe Aldridge on September 2, 2016 at 4:36

My understanding is if its being filled from a creek or bayou then the Feds claim the water. Thus, if the water is moving then They are claiming those are waters of the United States of America. The fines are $15,000 a day for usage of that water without a permit or permission. That's where a number of farmers have gotten in trouble. If someone has any different or additional information Please post. This is what this Administration has done through Executive Order.

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Permalink Reply by Skip Peel - Mineral Consultant on September 2, 2016 at 5:19

The issue of ownership between the state and the federal government is one of the bed of streams, bayous, lakes, etc. that were navigable in 1811 prior to Louisiana becoming a state.  The water flowing in the stream is a different question as to ownership by the state or the owner of lands adjacent to the water body.  Neither is a really cut-and-dry issue and depends on certain definitions and is subject to LA case law.

A Primer on Louisiana Riparian Law and Emerging Issues
Prepared for the Louisiana Mineral Law Institute

http://www.law.tulane.edu/uploadedFiles/Institutes_and_Centers/Wate...

Guidelines For Determining State Water Bottoms

http://www.wlf.louisiana.gov/sites/default/files/guidelines_for_det...

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Permalink Reply by Steve P on September 2, 2016 at 6:15

The Feds don't claim ownership, but the EPA has asserted authority to "regulate" the waters to ensure that the Clean Water Act isn't violated.  This was contested by a farmer, I think from Illinois.  I don't recall the judicial outcome.

This is a different issue from ownership.  See Skip's response below.  I suspect that the downstream landowners may have a complaint if all of the water is being pulled out of the creek for fracking.

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Permalink Reply by Steve P on September 2, 2016 at 6:26

The Supreme Court heard a procedural case this year and ruled in favor of the landowner, but this isn't the fundamental issue of what "waters" are actually subject to the Clean Water Act.  If interested, one can google "Clean Water Act EPA rule" and get lots of hits.

here is an article about this year's Supreme Court decision:

https://www.michfb.com/MI/Farm_News/Content/Politics/Supreme_Court_...

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Permalink Reply by Skip Peel - Mineral Consultant on September 2, 2016 at 6:38

Thanks, Steve P.  Here is what I suspect to be the case from the information provided.  The owners of land traversed by a flowing stream, whatever it may be called, do not have an ownership right in the water but they do have a right of use governed by federal or state law just as land owners do not "own" their underlying minerals but instead have the exclusive right to explore and produce those minerals.

The owner of the pond in question has the sole right to use that water as long as it does not violate a state law.  I further suspect that the use as described is not stopping total flow downstream from the pond and that as long as a minimum required flow volume is maintained no land owner downstream would have legal recourse.  From a practical use standpoint the pond is a better surface water source for frack water than the stream that feeds it.

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