Senate Joint Resolution 12 Placing Water Rights on the Ballot in West Virginia Dies

The West Virginia Legislature failed to pass SJR12 on the final day of the Regular Session of the 2014 Legislative Session.  The resolution proposed an amendment to the West Virginia Constitution which would have made it the policy of the state that the water resources of the state be protected, conserved, utilized and developed for the benefit, enjoyment and general welfare of its citizens.

Approval of the resolution would have sent the proposed amendment to the voters for their consideration during the November 2014 general election. 

If it had been approved SJR12 would have granted to the State the explicit right and the affirmative duty to take steps to protect the water resources of the state for the use of its citizens.  There has been substantial concern in certain areas of the state more susceptible to water shortages that outside interests would attempt to exploit this natural resource and divert flows of water from the state to other regions of the country to supply water.

The initial version of the resolution would have arguably circumvented the common law rights of riparian owners and potentially impacted their rights to the reasonable use of water which flowed through their property.  To remedy this problem, the resolution was amended to include a provision to protect existing real property rights and rights to access water granted by the common law.  The amended resolution required any state action taken pursuant to the authority contained in the amendment must be consistent and subject to the riparian rights and groundwater rights of owners of real property.

It is worth noting that essentially the very same provisions as proposed in the constitutional amendment, including the protection of individual property rights, are currently contained in state law in the legislative findings contained in the state’s Water Resources Protection Act at West Virginia Code §22-26-1(b)(2).

Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, administrative law, government affairs and lobbying. His practice consists of cases involving permitting and regulatory requirements for natural resources, including coal and oil and gas, solid waste, water resources, underground storage tanks, voluntary remediation, and the drafting of rules and statutes related to the environment.
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