TBA Law Blog

Posted by: Lynn Pointer on Oct 3, 2012

This article is reprinted by permission of the author and first appeared in a program presented by HalfMoon LLC on September 27, 2011. 

Understanding Tennessee Surface Water and Groundwater Rights and Regulations

By:  Robert M. Steele, Esq.
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.

I.  Fundamental Principles for Discussion

-  Water supply law has traditionally been…

·               a creature of state law, not federal.

·               based on common law developed over time.

·               related to real property ownership.

-  Western states' water law and eastern states' water law have traditionally been very different, and largely remain so today.

-  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.

-  However, of necessity, eastern states have been transitioning into a system of "regulated riparianism" as agencies, rules, and permitting come into play.

-  Tennessee has followed this same eastern regulatory trend, but to a lesser degree of regulation than in many other states.

-  Water supply law still differs considerably from state-to-state even within the same region.

- Surface water and groundwater are intertwined and interconnected legally as well as physically, and so the two topics will be blended together in this presentation.

-  Water conflicts on larger scales, and not just in smaller localized settings, are becoming more prevalent even in the more water-rich east, as they always have been in the dry west.

-  The federal role in water supply, aside from drinking water regulation, is often as manager and arbiter of certain sought-after surface water resources that span state boundaries; but this presence can also add to the conflict and complications.

-  Water quantity and water quality are also inexorably intertwined.

-  Water resources issues will only become more and more important in Tennessee and elsewhere as time goes on.

This remainder of this article is available in its entirety on the TBA Environmental Law Section's website at:  https://www.tba.org/news/tennessee-water-laws-and-regulations