Land and Water Law and Environmental Regulations
In the late 1800s, neither federal nor state governments have exerted authority to protect rivers and streams or other natural resources. However, English common law is evolving such that land and water become commodities to facilitate economic development. Common law of riparian rights has three principles that protect the river’s ecosystem services. First, in situ uses (natural or original position) are the norm and ex situ the exception (Tarlock 2001). Second, the watershed rule gives users in the watershed a preference over users outside the watershed. Third, the resource must be shared widely within the watershed. These principles are thought to be antithetical to economic development, so modifications ultimately turn rivers into channels and drains and the surrounding landscape into farms (Tarlock 2001).
Rivers have been used for transport for millennia, but by the late 1800s, technologies (e.g., locks, canals, and dams) develop that eliminate dependence on seasonable flow cycles. With the advent of these technologies, the laws are changed to accommodate economic development.
In 1933, the federal government assumes control of the nation’s waterways. The Commerce Clause of the U.S. Constitution is the source of this authority, and navigability is the basis for federal authority over rivers and the basis for the public’s right of access to them (Tarlock 2001). The U.S. Supreme Court equates the power of the federal government under the Commerce Clause to the protection and improvement of navigability. The U.S. Army Corps of Engineers becomes the agency with oversight responsibility.
Under English common law, however, the Illinois River would not be considered navigable. In England, a river is navigable only if affected by the “ebb and flow of the tide” (Tarlock 2001). Riparian owners own land to the middle of the stream and could therefore control access to the stream. Federal and state governments do not have the power to regulate navigable waters under this definition.
The evolution of the definition of “navigable” begins with a U. S. Supreme Court ruling in 1851 (Propeller Genesee Chief v. Fitzhugh, 53 U.S. 443 (1851)) that extends navigability to non-tidal waters. Later courts rule that navigability can be extended to waterways made navigable by improvements. This definition brings the Illinois River into the definition of navigable and therefore under the control of federal and state governments. While this allows federal regulation of the river, it also reduces the rights of residents within the watershed and opens the door to explosive economic development.
Common law also affects the discharge of pollutants into streams. “No person shall contaminate the water of a stream to the detriment of the neighbor below him” (Sherman 1911). If applied literally, the law would require all sewage to be treated to return it to its original purity before being discharged. While this is possible, it is not realistic.
Criteria are established to determine when a pollutant creates a nuisance or causes injury. This depends on the:
If a stream is used as a source of water supply, a very small amount of contamination is allowed before is constitutes a menace to health. If the stream does not serve as a water supply, larger amounts of sewage can be discharged because it is believed natural processes assimilate the pollutants without affecting aquatic life.
