Title: An Analysis of the "Reasonable Beneficial Use" Standard for Application in Florida
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Title: An Analysis of the "Reasonable Beneficial Use" Standard for Application in Florida
Alternate Title: aloney, Frank E., Capehart, Lynne C. and Hoofman, Robert S. for Department of Environmental Regulation, State of Florida. An Analysis of the "Reasonable Beneficial Use" Standard for Application in Florida. (Preliminary Draft)
Physical Description: 66p.
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Creator: Maloney, Frank E. ( Author )
Capehart, Lynne C. ( Author )
Hoofman, Robert S. ( Author )
Publication Date: October 30, 1978
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Spatial Coverage: North America -- United States of America -- Florida
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General Note: Box 5, Folder 17 ( SF REASONABLE BENEFICIAL USE ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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PRELIMINARY DRAFT

AN ANALYSIS OF THE REASONABLE BENEFICIAL USE"
STANDARD FOR APPLICATION IN FLORIDA

by
Frank E. MaloneyW
Dean Emeritus and Professor of Law
and

Lynne C. Capehart
and
Robert S. Hoofman
for
Department of Environmental Regulatlon
State of Florida



'7Q -












AN ANALYSIS OF THE "REASONABLE BENEFICIAL
USE" STANDARD FOR APPLICATION IN FLORIDA

I. INTRODUCTION


In 1972, the Florida Legislature enacted Chapter 373, the Florida

Water Resources Act (FWRA). The FWRA provides, among other things,

for establishment of a permit program for the consumptive use of water.

Although the FWRA authorizes either the Departme of Environmental

Regulation (DER) or the governing board of the cal water management

district to administer the permit program, 2 has given responsibility

for its administration to the water man a nt districts. Of the five

water management districts in Florida! nly the South Florida Water

Management District and the Sout lorida Water Management District

have fully implemented permit ams. While the St. Johns Water Manage-

ment District has a permit pam in the initial stages, neither the

Suwannee River Water Marge nt District, nor the Northwest Florida

Water Management Dis have any form of permitting at the present time.

The FWRA set h broad guidelines for establishing a permit program.

The conditions for a permit are as follows:

(1) To obtain a permit pursuant to the provisions of this chapter,
the applicant must establish that the proposed use of water:

(a) Is a reasonable beneficial use as defined in
s. 373.019(5); and,
(b) Will not interfere with any presently existing
legal use of water; and,
(c) Is consistent with the public interest.

"Reasonable beneficial use" is defined as:

"the use of water in such quantity as is necessary for economic
"and efficient utilization for a purpose and in a manner which
is both reasonable and consistent with the public interest."5







The purposes c' this paper are to examine the aning of "reasonable

beneficial use" by analyzing the common law of both "reasonable use"

and "beneficial use" and to develop a set of factors or guidelines which

may be used by the Department of Environmental Regulation (DER) &hd the

water management districts in their review of consumptive use permit appli-

cations to determine whether a use is "reasonable beneficial."


It. THE COMMON LAW MEANING OF "REASONABLE USE"


Most Eastern United States began by adopting the English "natural

flow" doctrine of riparian rights. Under this do rine, originally

applied to streams, a riparian owner was entitle o ave the stream

flow through his land undiminished in quan r quality.7 This natural

flow doctrine evolved into a standard of sonable use" which allows some

diminution in quantity or quality watercourse if other riparians

are not unreasonably harmed. iparian's consumptive use ofawater

must be reasonable in relate o both the effect of that use upon the
09
rights and uses of the riparian owners and the effect upon the public

interest.10 Under ctrine of reasonable use adopted in Connecticut,

a lower ripariq d be deemed injured by an unreasonable use even in
11
the absence of any actual use by the lower riparian.

Florida courts adopted the common law doctrine of reasonable use for

consumption of water from defined surface water bodies. Thus, the Florida

supreme court, in an 1896 case, stated:


The right to the benefit and advantage of the water
flowing past one owner's land is subject to the similar
rights of all the proprietors on the banks of the stream
to the reasonable enjoyment of a natural bounty, and it is
therefore only for an unauthorized and unreasonable use
of a common benefit that anyone has just cause to complain.
(Emphasis supplied.) 12
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In a later case, affirming an injunction against pumping water from a

lake for irrigation purposes where the lake was lowered to a level that

damaged the interests of other riparians, the Florida court stated:


Except as to the supplying of natural wants, including the use
of water for domestic purposes of home or farm, such as drinking,
washing, cooking, or for stock of the proprietor, each
riparian has the right to use the water in the lake for all
lawful purposes, so long as his use f the water is not detrimental
to the rights of other riparian ow er 13


The Restatement (Second) of Torts 4 s identified nine factors which

courts have taken into consideration Jetermining whether a use is a

"reasonable use." These are:

(1) the purpose of the res ive uses;
(2) the suitability of the s to the water course or lake;
(3) the economic value o e uses;
(4) the social value of uses;
(5) the extent and am of the harm caused;
(6) the practicality # voidin the harm caused!
(7) the practicality adjusting the quantity of the water, used by
each proprietor -
(8) the protection o existing values of land, investments band enter-
prises; and
(9) the burden requiring the users causing the harm to bear the loss.

I. Purpose O

The purposes or types of consumptive uses have been divided by some

courts into "natural" uses and "artificial" uses. Natural uses have a

priority and "encompass all those absolutely necessary for the existence

of the riparian." Natural uses include consumptive use for "domestic

purposes of home or farm, such as drinking, washing, cooking..." 18 Some courts

also recognize stock watering as a natural use.19 At common law, all of

the water may be consumed for natural uses regardless of the effect on other

lower riparian owners, Adopting this natural use concept, the FWRA

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specifically exempts domestic use by individuals from the permitting
21
program.

All uses which are not natural uses are considered artificial uses
22
and have no priority. A wide variety of artificial uses are potentially
23
"reasonable" uses. Use of water for the purpose of irrigation has

been considered both reasonable and beneficial.24 Other reasonable uses

include use of water for fishing, swimming, recreation,26 and manufacturing.


2. Suitability

Many courts have recognized the suitabili the watercourse for the

use to be a factor in determining the reason ess of the use. Suitability

refers to the reasonableness of a use with e pect to the size and character

of a watercourse and the amount of water ailable for use. Unreasonable

uses may consume more water than th "neam normally delivers or may impair

recreational and environmental va A new use may not fit into the

custom or pattern of uses fro TTh benefits from the watercourse have

been obtained.28 This fac as given controlling weight by the Florida

Supreme Court when it co i red the adequacy of a lake to furnish water

for irrigation during dry season, and affirmed an injunction limiting

withdrawals in ord to prevent loss of recreational use.9


3. Economic Values

Florida has recognized the economic factor in a case in which an

injunction was granted preventing pollution of a lake. The court, char-

acterizing the lake as a valuable asset to the plaintiff developer, compared

the amount invested in the property with the cost to the defendant of

discharging elsewhere.30 Economic value may be evident in the productivity

of the use of water in irrigation or manufacturing for example. Economic

value may also arise from the recreational and scenic uses of the water.

-4-









4. Social Values

Social values, or the public interest, will weigh heavily as a factor

where considerations of public health and welfare are at stake. Public

use and necessity may outweigh private uses which might otherwise

be reasonable. The public good is advanced by such uses as salinity control,

water supply or sewage disposal.32 The "public interest" is specifically

made a part of the definition of "reasonable heficicl use" in the FWRA.

5. Extent of Harm

Interference with a use may range f l light inconvenience to total

destruction. A determination of reason ness will examine the value

of the use interfered with. Where t arm suffered by a plaintiff from

a defendant's use of water is insoQb*ntial, a court will find the use to

be reasonable.34 The harm has b found to be substantial and unreasonable,

however, where an upper proper r attempts to reserve all of the water

for his exclusive use. 35

6. Avoiding Harm

To allow as many of water as possible, courts have considered

whether it is practice to avoid harm by adjusting the manner or method

of the use of water or by requiring use of another available source of

water. Matters of efficiency and cost of adjustment to each riparian

are weighed in the balance. A use which is unnecessarily wasteful or

inefficient has been found to be unreasonable if the method of use may be

changed so that other riparians are no longer harmed without substantial

reduction in profitableness. However, if the use is otherwise

reasonable, continuing the existing manner of use will be allowed when an

adjustment would be prohibitively costly or would render the use

impractical. 36









7. Adjusting the Quantity

The practicality of adjusting the quantity of water used by each

riparian is another factor weighed by the courts. Beyond requiring a

riparian to use only that quantity which is necessary, the court's have

sometimes divided the available water between riparians according to

their respective needs.

8. Protection of Existing Values

According to traditional riparian doctrine, priority of use gives
38
no additional or extended rights in a stream. 3 Stated otherwise, priority

is immaterial. A few courts, however, have that priority ?s a

factor for consideration.4

9. Burden of Loss (Compensation)

The final factor, requiring use causing the harm to bear the
% 41
burden of loss, is grounded i lic policy if not due process. The United

States Supreme Court has hat:

Later uses superior economic resources should not be
allowed i ose costs upon smaller water users that are
beyond i economic capacity.42

This factor,
compensation should be paid by a new user when the decision to supplant an

existing use is made. A new use will usually be termed unreasonable

if it causes substantial, unavoidable harm to an existing use that is

socially and economically valuable and the new user is able to compensate

for the harm but does not do so.

Courts have been guided in their determination of the reasonableness

of a use by one or more of the nine factors identified by the Restatement

(Second) of Torts. These nine common-law factors can as readily guide

the exercise of administrative discretion in determining whether to grant








a consumptive use permit.

Identification of factors involved in making a determination of

reasonableness of use is not unique to the Restatement (Second) of

Torts. For instance, Professor Grimes of the Indianapolis Law School

has suggested that, the test for the "reasonableness" of a given use gen-

erally includes the requirements that:


1. The purpose of the use must be lawful and benef ial45
to the user and suitable to the stream involved.
2. The social utility of a proposed or existing use should be
considered. 47
3. Use of the water must be made on riparian land (used
by the riparian owner on land adjacent to the stream
or lake);48
4. The quantity of water diverted to the exclu-ve use.
of the riparian user must be viewed in I tf the
total flow;49
5. The result of the use must not be te the water so as
to significantly harm lower rip 1 sers;50
6. The manner of flow must not e e eciably altered (retarded
or accelerated).51

Grimes' listing of reasonable irements, which does not purport to

be comprehensive, is co with that of the Restatement (Second)

of Torts. Both he factors of purpose, suitability, social

utility, quar i, harm and manner of use. The Restatement (Second) of

Torts presents the additional factors of economic value, priority, and

ability to bear the loss. The focus of Grimes' article on Arkansas law

may explain these omissions, as well as the greater emphasis on pollution
52
and diversion as factors.

Several state courts have also enunciated factors to be weighed in

determining whether given use is reasonable. For example, in a case

involving recreational use of the surface of a lake, the Michigan

Supreme Court recently examined various statements of the common law

of reasonable use, saying:


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...in determining whether a use is reasonable we must con-
sider what the use is for; its extent, duration, necessity
and its application; the nature and size of the stream,
and the several uses to which it is put, the extent
of the injury to one proprietor and of the benefit to the
other; and all other facts which may bear upon the
reasonableness of the use.53


The Michigan Supreme Court then remanded the case and instructed the

trial court to keep in mind the following factors:

First, attention should be given to t/wratercourse and its
attributes, including its size, char er, and natural state...
Second, the trial court should examni'nthe use itself as to its
type, extent, necessity, effect on e quantity, quality and
level of the water, and the purpo f the users... Third,
it is necessary to examine the p sed artificial use in
relation to the consequential e(e ts, including the benefits
obtained and detriment suffered, the correlative rights and
interests of other riparian p rietors and also on the ;
interests of the state, incli fishing, navigation, and
conservation.54

Michigan's statement of the faas of reasonable use is also consistent

with the Restatement (Second iTorts. The Restatement simply provides

a more complete summary of common law factors which have guided

the discretion of the co t4 when determining whether a use is a

"reasonable use."
oc,
III. THE W ERN LAW OF "BENEFICIAL USE"


A fundamental principle of the water law of the western states

is that the public waters must be used for a useful or beneficial

purpose. The statement that "beneficial use shall be the basis,

the measure, and the limit of the right to the use of water" is
56 57 58
found in constitutions, statutes, or court decisions of every

western state. See Appendix A for a state-by-state summary of beneficial

use.
-8-

-









Some states have a statutory definition for beneficial use. The

laws of South Dakota state:

'Beneficial use' is any use of water that is reasonable and
useful and beneficial to the appropriator, and at the same
time is consistent with the interests of the public in Lhe
best utilization of water supplies.59

The North Dakota statutory definition reads:

"Beneficiail use' means a use of water for a purpose consistent
with the best interests of the people of the state.60

The Texas legislature defined the term as:

use of the amount of water which is economically necessary
for a purpose authorized by this chapter, when reasonable
intelligence and reasonable diligence are used in applying
the water to that purpose.61

The legislature then enacted a comprehensive s tutory list of uses

for which water may be appropriated:

1. Domestic and municipal us luding water for sustaining
human life and the life of estic animals;
2. Industrial uses, bein ocesses designed to convert materials
of a lower order of u into forms having greater psuability
and commercial va e i cluding the development of pbwer by
means other tha hlbelectric;
3. Irrigation;
4. Mining and r iC ry of minerals;
5. Hydroelect power;
6. Navigatio\
7. Recre er and pleasure;
8. Stoc jSing;
9. Pu arks; and,
10. O epreserves.62

The statute also allows appropriation, storage or diversion of water for "any
63
other beneficial use" which implies that the preceding list is of uses

that are also beneficial.

Other states have also enacted statutory lists of uses which will be

considered to be "beneficial." Montana law states:

'Beneficial use' means a use of water for the benefit of the
appropriator, other persons, or the public, including, but
not limited to, agriculture (including stock water), domestic
fish and wildlife, industrial irrigation, mining, municipal
power, and recreational uses.

-9-









The Constitution of the State of Washington declares irrigation, mining
65
and manufacturing purposes to be public uses of water. Additional uses

of water for:

domestic, stock watering, industrial, commercial, agricultural,
irrigation, hydroelectric power production, mining, finh and
wildlife maintenance and enhancement, recreation and thermal
power production purposes and preservation of environmental
and aesthetic values

are established as beneficial uses in Washington by statute.6

Despite the widespread use of the concept of "beneficial use'" western

courts have been reluctant to establish a judicial definition of the term.

The Supreme Court of Idaho, in determining that an appropriation for

purposes of recreation and preservation of scenic views was a beneficial

use, stated:

While it is well-established in we water law that an
appropriation of water must be m a 'beneficial use',
nevertheless in Idaho at least e neric term 'beneficial
use' has never been judicial or tatutorily defined. Our
research does not disclose t case in which any court ias
attempted to define the t '_beneficial use." (Emphasis supplied)

The Colorado supreme court, notti hat the term was not defined In the

Colorado Constitution, said, t is beneficial use, after all is a ques-

tion of fact and depen u -the circumstances in each case.68

In an examina f Western water law completed over a half-century

ago, Samuel C. (1, a noted author on water law, concluded that, as a

rule of law, whether a use was beneficial was a question

of fact, a very general one depending on the attitude which
the jury (or judge) as reasonable men will take toward the
evidence as a whole. And... it appears that the question of
fact is whether the use is a reasonable use between the.
parties under the circumstances in each case according to
the court's best idea of fairness to all.69

Although no case law has been found which specifically enumerates guide-

lines for determining when a use will be deemed "beneficial", certain uses

have been repeatedly approved by the western courts as belonging in the

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"beneficial use" c !gory. These include: irriga ,on, flood control,
72 73 74
recreation and preservation of scenic views,2 domestic use, and drainage.

Some uses have been specifically declared r.on-beneficial. The Montana

Legislature established by statute that the use of water for slurry to

75
export coal from Montana would not be considered a beneficial us&:

The Utah Supreme Court stated that irrigation following a heavy rain is an

example of a non-beneficial use.6

There are two aspects to making a determination of beneficial use.

The first is that discussed above; i.e., the purpose of the use. The second

aspect involves the manner in which the water 4& ing used. Courts

considering this aspect look at the reason ss of the appropriation7

and the economy of the application of P

Reasonableness plays an import role in most states in determining

whether a use is beneficial. P sor Wiel noted, as long ago as 1915,

that there was a


tendency to reso reasonableness in determining the allow-
ances and rest ic ons surrounding 'beneficial use' (so that)
the test bet ppropriators is becoming increasingly like
the test l on law between riparian owners; namely 'reason-
able use'

Subsequent case law seems to bear him out. For example, the Utah Supreme

Court upheld a trial court determination that:

a prior appropriator does not have an unlimited right to the
use of water, but is subject to a reasonable limitation of
his right for the benefit of junior appropriators. That it is
necessary and proper to limit prior appropriators to the volume
of water reasonably required to raise crops under reasonably
efficient methods of applying water to the land. That benefi-
cial use is the basis and the measure and the limit to the use
of water and water used in excess of the amount reasonably
necessary to produce crops is not beneficially used.
We subscribe to the rule that the use of water must not
only be beneficial to the lands of the appropriator, but it
must also be reasonable in relation to the reasonable require-
ments of subsequent appropriators... (Emphasis added) 8

In a later decision the Utah court continued its quest for reasorn;blce.,s, in

the determination of beneficial use by calling for "the balancing of

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individual rights in relationship to each other in a reasonable way under

the circumstances which will best serve the overall objective (of

the highest possible development and the most continuous beneficial use)."81

(Emphasis added.) The court said that all users are required to utilize
82
reasonable and efficient means in taking water from underground supplies.8

New Mexico also requires a showing of reasonableness. In State ex rel.

Erickson v. McLean, the state sought to prevent the defendant from leaving his

irrigation well running from October to April thus turning his land into a
83
marsh. The New Mexico supreme court granted the injunction saying that

the use made of the water must not only be beneficial to the appropriator's

land, but must be reasonable. The court went on to say "whatever. right

one has (to the use of water) is subject to that established prinEiple

that his use shall not be injurious to the rights of or of the

general public."84

The courts of Oregon have adopted a s'mi philosophy. The Oregon

supreme court in determining the vali an appropriation said, "The

use must not only be beneficial elandsof the appropriator, but it

must also be reasonable in .on to the reasonable requirement of subsequent

appropriators."(8s5 added.) in an earlier case, the court, determin-

ing the water r' sociated with the Deschutes River, held the use of

water to generate power for lifting irrigation water was not only beneficial
86
but reasonable as well. At the same time, however, the court ruled that

the use of water during the irrigation period to flush debris out of a dam

area was improper. The court said one is entitled to use water only in such

quantities and at such times as may be reasonably necessary for some useful
87
purpose. Since the debris could be flushed at some other time of year,

it was held unreasonable to allow such a use when other uses were more

critical.





U*** *r ***" -.a I : 1 fd.II ., ---*. . ^ *** -----------










Professor Wells Hutchins, another noted authority on water law,

commented in his treatise on the water law of the Western states that the

term "reasonable" has been adopted by the courts as a qualification
"! 88
of the appropriator's right to use water for a beneficial purpose.

Hutchins concluded that an appropriator's right to a quantity of water

was to be measured by his "reasonable, economic, beneficial use, without
,,89
unreasonable or unnecessary waste...

The final, and obviously interrelated, consideration in making a

determination of a beneficial use is the economy of application of the

water. Courts have uniformly held that an extravagant or steful appli-
90
cation of water is not a beneficial use. Some states a statutory ban

on waste of water. Waste of water is not consid reasonable use

of water in an arid state. Thus, although a se be economical for an

appropriator, when such a use deprives a I person of water and

there a less wasteful method which utilized, the law requires

that water be used in a way th reasonable and does not harm the

rights of others.92

In summary, alt e term "beneficial use" is seldom defined,

analysis of western w ter law reveals a consistency among the western

states with regard to certain factors in determining the validity of an

appropriation. These factors could give rise to a definition of beneficial

use as the use of water for a purpose which: (1) benefits the. land of the

appropriator;93 (2) benefits society as a whole;94 (3) is reasonable with

respect to the rights of other appropriators;95 (4) is reasonable with

respect to the rights of the public;96 (5) is economical and, (6) is

efficient, i.e., non-wasteful.98

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IV. THE BACKGROUND OF THE REASONABLE BENEFICIAL USE STANDARD


As shown in the discussion above, much of the law pertaining to

beneficial use superimposes, either statutorily or judicially, a

reasonableness requirement on any beneficial use. In addition, there

are several areas of law where the actual phrase "reasonable beneficial

"use" is found. Two of these are California water law and the Model Water
99
Code.

A. California Water Law:

The state of California is one of two states which have judicially
100
recognized the term "reasonable beneficial" use. The al ifornia

constitution, with regard to water resources, provi ttt:


the conservation of (the water res of the State)
is to be exercised with a view o reasonable and
beneficial use thereof in the terest of the people
and for the public welfare. mhasis supplied.)l01

The case law interpreting this ion gives some guidance in 4eternin-

ing the definition Califo urts have given to the "reasonable

beneficial use" stance

In 1933, t ornia supreme court, while determining the respective

rights of riparian landowners and appropriators on the same stream,

discussed the concept of reasonable and beneficial use of water, saying:

...what is a useful and beneficial purpose and what is an
unreasonable use is a judicial question depending on the
facts in each case. Likewise, what is a reasonable
or unreasonable use of water is a judicial question to be
determined in the first instance by the trial court.i There
would seem to be no more difficulty in ascertaining what is a
reasonable use of water than there is in determining probable
cause, reasonable doubt, reasonable diligence, preponderance
of evidence, a rate that is just and reasonable, public
convenience and necessity, and numerous other problems which
in their nature are not subject to precise definition but 102
which tribunals exercising judicial functions must determine.

-}k~









The California court was called upon in a later case to determine

the quantity of water required for reasonable beneficial use.103 The court

first considered how to determine a reasonable quantity and concluded

that the amount of water allowed did not require the user to utilize

the best known diversion methods but only those methods in general use
104
in his locality as long as there was no unnecessary waste. The court

then analyzed "beneficial use" and reiterated its previous opinion that

"what is a beneficial use, of course, depends upon the facts and circum-

stances of each case.05 The court further noted that whether a

was reasonable beneficial depended on the amount of water i for all

needs and the type of need. Changed conditions could cC,a uss from

reasonable beneficial to wasteful.106 L

In a more recent case, the Califo eme court, deciding that a

use of water for replenishing r ks gravel on the plaintiff's land

was not a reasonable use at "beneficial use" and reasonablee use"

were not synonymous unde the California constitution.07 The cobrt held

that it was not enough to show that a use was beneficial if it could not

also be shown to be reasonable.8

From these cases it is obvious that the California courts were not

constrained by the lack of statutory definition for the term "reasonable

beneficial use.' In California, a use must be considered beneficial before

it qualifies for a permit, but more than that it must be deemed reasonable.

Because reasonableness is a question of fact to be determined by the cir-

cumstances of each case,109 it is not possible to specify in advance what

uses are reasonable within the broad confines of a statute. When

reasonableness becomes an issue, the California court feelsqualified to

make such a determination.
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B. The Model Water Code:

Because the 1972 Florida Water Resources Act was based largely upon the
110
Model Water Code, the Code and its commentary provide evidence of the

intent of the Florida Legislature when it established the reasonablee

beneficial" standard for consumptive water use in the state.

"Reasonable beneficial use" is defined by the Code as:

The use of water in such a quantity as is necessary
for economic and efficient utilization, for a pur-
pose and in a manner which is both reason le and
consistent with the public interest.111l

The commentary to the Code states that the t reasonable beneficial use"

is a term of art that should not be confuse th either the "beneficial
4 rP
use" standard of prior appropriation A law or the "reasonable

use" term of riparian water law 1 he writers of the Code intended

the term to include a stand reasonable use which embraced the rights

of the general public as as the rights of riparians and to require

efficient economic water regardless of the sufficiency of water

available.11

In a further discussion of the "reasonable beneficial use" standard,

the authors of the Code explain that the term is intended to be a combination

of the best features of the rules of both reasonable and beneficial use. 11

The term is said to require first that the quantity of water used be

efficient with respect to the use itself, and second that the water be u. -;d

for a purpose which is reasonable in relation to other uses. The standard

does not require that the use itself be the most economical use of water

possible, but does require that the method of use be economically efficient.116

Coupled with this requirement is the related requirement that the method for

diverting the water must also be reasonable and consistent with the public
i e 117
interest. _
-1 ^-







These two art -:te the major areas in which term "reasonable

beneficial" appears. California has the most extensive case law

relating to the "reasonable beneficial" standard because of the length
118
of time the constitution and statute have been in effect. However, one

other state has a similar statute. South Dakota has enacted a statutory

provision identical to Article 10, Section 5 of the California constitution.

It reads:

...The conservation of such water is to be exercised with a
view to the reasonable and beneficial use thereof in the in-
terest of the people and for the public welfare. The right
to water... shall be limited to such water as shall be rea-
sonably required for the beneficial use to be served...
(Emphasis added.)ll9

South Dakota then defined "beneficial use" as:

... any use of water that is reasonable an ful and
beneficial to the appropriator, and at ame time
is consistent with the interests of lic in the
best utilization of water supply. phasis added.)120

South Dakota case law interpreting t visions speaks of making a
,\ 2
"reasonable beneficial use of Thus, although the statute

reads in terms of reaso b d beneficial use, the South Dakota courts

have shortened t sion simply to "reasonable beneficial" use

in the same mann as did the California courts.

Professor Frank Trelease, an authority on western water law, wrote

an article entitled The Concept of Reasonable Beneficial Use in the Law of

Surface Streams.122 Professor Trelease first discusses the background law

of both reasonable use and beneficial use and then analyzes th.e reasonableness

of beneficial use. He concludes that courts adopting the "reasonable

beneficial use" approach take into account "the economic relativity of

specific uses and the comparative benefits to be realized from different

competing uses."123 Professor Trelease, in his critique of the Model Water

Code, referred to the term "reasonable beneficial" as a "new concept",124

the standard, which has apparently never been statitor i ily adopted before,

-17-










is not an especially new concept after all. The various uses of the term

involve different facets of interpretation. However, each interpretation

includes consideration of the type of use of the water and the

rights of the respective parties.


V. COMPARISON OF REASONABLE USE, BENEFICIAL USE AND REASONABLE BENEFICIAL USE


A. Reasonable Use and Beneficial Use.

The "reasonable use" and "beneficial use" standards of water law are

usually thought to be quite different standards because "reasonable use"

relates to the riparian doctrine and "beneficial use" is ed under the

doctrine of prior appropriation. However, the ig examinAtion

of the factors included in each standard wi sh that the major difference

between the two standards lies in wbe \ he water user owns land

adjacent to the water supply

The previous ana the standards of reasonable use and beneficial

use revealed se tors often used in determining whether a given
126
use of water is allowable. Factors for determination of whether a use is

reasonable include the purpose of the use, the suitability of the use

to the water course, the economic value of the use, the social value of the

use, the extent and amount of the harm caused by the use, the practicality

of avoiding the harm by adjusting the use or the method of use, the prac-

ticality of adjusting the quantity of the water used, the protection of

existing values of land, investments and enterprises, and the burden of
127
requiring the users causing the harm to bear the loss. The factors

involved in determination of whether a use is beneficial include

the purpose of the use, the benefit of the use to the appropriator and society,

the reasonableness with respect to the rights of other appropriators

and the general public, the efficiency or economy of the method of use,

-18-







and the prevention c 'lte. 1

Comparison of the factors shows a high degree of correlation between the

two standards of use. Each standard examines the purpose of the use with

uses for domestic purposes, irrigation, recreation, manufacturing, stock

watering (to a limited extent) and power production (in some cases. being
129
approved uses in both systems of water law. The factor of suitability

of the use to the watercourse is most directly related to the riparian

reasonable use standard because of the concern with rights of other

riparians. Howev.?r, this factor could be statutorily superimposed on the

western law by legislation such as the National Wild and Scenic Rivers

Act,130 which could prevent use of a particular river power production

through a Congressional determination of unsuit

The economic value factor of areass na e je" overlaps with the "beneficial

use" factors of benefit of use to aP 1 iator and society and the

efficiency or economy of thd of use. Similarly, the two "reasonable

use" factors of extent unt of harm caused, and practicalityof

avoiding harm y related to the "beneficial" factor of reasonableness

with respect the rights of other appropriators and the general public.

The difference here is that the riparian doctrine looks to injury to other

riparians131 where the doctrine of prior appropriation is seldom concerned

with riparian rights32 but rather with injury to rights of prior

appropriators.133 Examination of the public interest overlies each system

with the "reasonable use" system calling the factor the social value

of the use and the "beneficial use" system speaking of the benefit of

the use to society and the reasonableness with respect to the rights of

the public. In addition, prevention of waste, a major factor under

"beneficial use", is somewhat paralleled in the reasonable use standard

through the practicality of adjusting the quantity of water used, although

waste will be permitted if no other riparian complains.

The "reasonable use" standard looks to the protection of existing

-19-






S values of land, ':tments and enterprises. Th. factor is not examined

In "beneficial use" jurisdictions because the very nature of prior

appropriation law is such that these values are protected in perpetuity.

The final factor for "reasonable use", that of the burden of requiring

the user causing the harm to bear the loss, is also not specifically

examined under the "beneficial use" standard. Because harm can only be

caused to someone who has a right which has been infringed upon, a

person desiring to make an appropriation has no right to do so unless

there is unappropriated water available.134

The foregoing comparison provides a list of factors common to both

reasonable and beneficial use. A determination that a use is bqth

reasonable and beneficial would involve examination (1) the purpose

of the use; (2) its economic value; (3) itlue; (4) the extent

and amount of harm caused to one I g a tior right to use the water;

(5) the practicality of i rm; (6) the practicality of adjusting

the quantity; otection of existing values.

B. Ison with reasonable beneficial use.

The factors common to both "reasonable use" and "beneficial use" appear

consistent with the factors underlying the California "reasonable beneficial

use" determination. The California factor of type of need135 includes

both purpose and social value. The factor of amount of water available for

all needs, entails an examination of the extent and amount of harm caused

to one having a prior right to use water, the practicality of avoiding

the harm, and the practicality of adjusting the quantity. However, with

respect to reasonable beneficial use California does not appear to stress

the factor of protection of existing values since the court has said

changed conditions can change a use from reasonable beneficial to wasteful.l36

The "reasonable beneficial" standard, as proposed by the authors

of the Model Water Code, was intended to incorporate the best features

137
of both reasonable use and beneficial use. One of the important aspects

-20- ____----------







of the reasonable u. '5ctrine is the flexibility c 'Te system, i.e., the

ability of a riparian to initiate a new use or expand an existing one in

light of changing conditions of water use and supply. There is no

unqualified right through riparian ownership to the use of a specific
< 139
quantity of water. Uses may be changed so long as the change is reasonable.

The western appropriation system, on the other hand, provides legal certainty

to water users who know that once their right is established it is theirs
140
in perpetuity. This certainty is provided, however, at the expense

of other potential appropriations. The system discourages a senior

appropriator from utilizing new techniques to make his use more efficient

and thus make water available to others. It also penalty es junior appro-

priators during times of water shortages becau ts are not Vpportioned

equitably but rather on the basis of prjori y

These differences in the t 7r use systems are, however, inherent

to the systems themsel I than to the standard of "reasonable"

or "beneficial" e two standards, as discussed above, contain

almost th a? factors. The only factors which are not common are the

reasonable use factors of suitability and burden of loss (compensation).

These two factors are closely related to the riparian system itself as to

the standard. The determination of unsuitability of the use to the water-

course involves the rights of other riparians rather than the public interest

in preserving the water quality or quantity. The right to compensation

is related to the flexibility of the riparian system which allows intro-

duction of new uses at the expense of prior users.

C. Determination of Reasonable Beneficial Use Factors

Determination of what is a "reasonable beneficial use" should include,

* at a minimum, those factors common to both the "reasonable use" and

"beneficial use" standards. These common factors which include

consideration of the purpose of the use as well as its economic and

-21-











social value and which require examination of the harm the use will cause

to other water users balanced against the ability of the u!sr to find some

means to avoid the harm, have been used by courts over the years to achieve

a water use system which benefits society and, therefore represent at least

some of "the best features of both reasonable use and beneficial use."

The "reasonable use" factor of suitability of the watercourse, although not

common to the factors identified in both systems, is being adopted either
143
legislatively or administratively in some western statutes.143Although

any judgment of "best" can only be subjective, a factor which looks at the

water body itself to see if the use will be harmful to the ecology or to

the public interest should surely be placed in the category of "best."

Whether the ninth "reasonable use" factor, that of compensation, is one

of the "best features" of the reasonable use system and h ore is to

be considered part of the "reasonabb b fcia ar should pro-

bably be a e ti tg rmination .4

In summary, a standard of "reasonable beneficial use" which incor-

porates the "best features of both reasonable use and beneficial use" would

be a standard which required an examination of the purpose of the use,

its economic value, its value to society including consideration of

possible harm to society through harm to the water body, and a

balancing of any harm caused by the use against methods currently avail-

able to reduce or eliminate that harm. The standard should reflect an

increased emphasis on the rights of the public over the traditional

rights of riparian proprietors. The standard should also emphasize

flexibility toward changed conditions. Implementation of such a standard

should result in an improved system of water use and allocation.



-22-









VI. APPLICATION OF "REASONABLE BENEFICIAL USE" IN FLORIDA

A. Validity of the standard.

When a legislature initiates a new regulatory program, the statute

should contain guidelines to restrict the appropriate administrative

agency's discretion in implementation of the program. Otherwise, the

charge may arise that the legislative body has not provided adequate

standards or sufficient guidelines in its delegation of regulatory power
145
to an administrative agency. Because the Florida Constitution restricts

wholesale delegation of powers by one branch of goverent to any other,6

the Florida Supreme Court has formulated a general st for determining

whether a legislative delegation of authority ently restricts

administrative discretion.

The Legislature may not dele the power to enact a
law or to declare what the I all be, or to exercise an
unrestricted discretion in y iying a law;but it may enact a
law, complete in itself, gned to accomplish a general
public purpose, and ma essly authorize designated
officials within defi alid limitations to provide
rules and regulation the complete operation and
enforcement of the within its expressed general
purpose. 147

Florida courts ap this test must bear in mind the presumption

of validity accorded l legislative enactments. Allowing some ad-
149
ministrative discretion will not per se invalidate a statute. The

courts have examined whether the words of limitation employed have a fixed

and definite meaning in connection with the subject matter. In addition,

Florida courts have ruled that the test should be tempered by con-

sideration of the practical context of the problem sought to be remedied

in light of the policies to be served, and the need for flexibility.

Finally, the procedural safeguards provided by the Administrative

Procedures Act and the availability of judicial review are weighed by

the courts in determining the constitutionality of delegated authority.152

-23-









The key words of limitation in the FWRA consumptive use permit

section are those that require the applicant to establish that his proposed

use is a "reasonable beneficial use."153 The FWRA defines "reasonable

beneficial use" as: *-


The use of water in such quantity as is necessary
for economic and efficient utilization for a pur-
pose and in a manner which is both reasonable and
consistent with the public interest.154


The phrase "reasonable beneficial use," adopted by the authors of the

Model Water Code as "an attempt to combine the best features of the

reasonable use and beneficial use rules",155 was enacted into law by the

Florida Legislature using the Model Water Code' its guide. Th' phrase

should therefore be read in light of the I history of judicial deter-

mination of water uses in each system. h terms "reasonable use" and

"beneficial use" are legal phrases uhh have been clothed with common law

meaning over the period of many by the courts of the various states.

Each term serves as a legal s and for the factors articulated and

weighed by the courts in i termination of the legality of a use.

These factors are part parcel of the technical meaning of each term

and have served as lines for the courts in making their determinations.

These factors cats readily serve as guidelines to limit the discretion

of administrative agencies.

It is a well-recognized canon of statutory construction that where

legal terms are used in a statute they are to receive their technical

meaning, unless the contrary plainly appears to have Leei the intention

of the legislature. "Thus statutes which employ special or technical

words or phrases well enough known to enable those expected to use thK ".

correctly apply them, or statutes which use words with a well settled

common law meaning, will generally be sustained against a charge of

-24--









157
vagueness.*'1 When the Florida Legislature adopted the technical

words "reasonable beneficial use", words with well developed common

law meanings, it may be presumed that the Legislature intended to

rely on the technical common law meaning of these terms to guide and

constitutionally limit administrative determination of whether a use is

reasonable-beneficial.

The definition of "reasonable beneficial use" in FWRA can clearly be

seen to encompass most of the factors common to "reasonable" and

"beneficial use." Determination of whether a use complio with the

definition would necessarily involve examination of i purpose. The

economic value factor would be involved in dei Fo rng economic and

efficient utilization. The public inte pt component of the statute re-

lates to the social value factor. ctor of extent and amount of

harm caused to one having a ght to use water is basically covered

by the phrase reasonablee consistent with the public interest." The

factors of avoid adjusting the quantity, and protecting existing

uses, are also clouded in the phrase "in a manner which is ... reasonable.'

The suitability factor is also present because of the statutory emphasis

on public interest.

B. Establishing Guidelines for Implementation of the FWRA.

Although the factors considered by courts in making a general

determination as to whether uses are reasonable or beneficial are contained

in Chapter 373, it is important that the agency administering the con-

sumptive use permit program provide clear guidelines for making decisions

in specific cases.

The Florida Supreme Court has recognized that standards for the

guidance of administrative discretion can be supplied by "common usage or









by reference to the purposes of the Act."158 The specific purposes

sought to be achieved by the Florida Water Resources Act are enumerated

and express the Legislature's intent to realize the full beneficial

use of the waters of the state; to provide for management of wat,:r re-

sources; to promote conservation, development, and proper utilization of

surface waters; to preserve natural resources, fish and wildlife; to

promote recreational development, protect public lands, promote navi-

gability; and to otherwise promote the health, safety, and general

welfare of the people of the State.159

The Supreme Court of Florida has recognized that *n some areas of

regulation it is impractical for the Legislature to nacr specific

standards for the exercise of administrative dis n. The deter-

mination of whether a particular use is a "re le beneficial use"

falls into this category since each permit decision will present both a

different combination of factors to be w Jd with respect to tI

different characteristics of Florida' lakes and watercourses and

varying riparian and public intere ith respect to a particular lo-

cation. The question of whether er all the facts and circumstances,

a proposed use in a particul /% action is reasonable beneficial, does

not interfere with existing al uses, and is in the public interest,

can best be determined b board which convenes frequently, and builds

up a fund of expertise in the area it regulates.

The Florida Supreme Court has also said:

(T)he very conditions which may operate to make direct
legislative control impractical or ineffective may also,
for the same reasons, make the drafting of detailed or
specific legislation impractical or undesirable.161

The Legislature specifically recognized the need for flexibility in Section

373.016(3), Florida Statutes (1977). It therefore chose to restrict its

-26-











delegation of authority by directing the DER and water management districts

to weigh the common law factors of reasonable beneficial use, as well as

existing uses and the public interest, in the exercise of review-

able discretion.

In addition, availability and use of the Administrative Procedure

Act (Chapter 120, Florida Statutes (1977) ) to refine statutory policy

statements by the adoption of rules has tipped the balance in other contexts
162
in favor of upholding legislative delegations of authority. The

Legislature has authorized the DER and water management districts to flesh

out by administrative action Florida's declaration of water sources
1 :i 163
policy. The PvRA provides for the refinement of poll ulemaking.

Finally, the exercise of administrative discr tit DER and the water

management districts through rulemakin wanting or denying consumptive
Y" 164
use permits is subject to direc 1 review. Florida courts have

recognized that such di t ial review will serve to further, ensure

"that discretion T exercised responsibly and fairly." 165


C. Recommended Guidelines Based on Reasonable Beneficial Use Factors

Administrative regulations establishing guidelines for consumptive use

permitting in Florida should be consistent with the factors developed from

the analysis of the "reasonable" and "beneficial use" standards. These

factors include: (1) the purpose of the use; (2) its economic value;

(3) its social value, including the suitability of the watercourse;

(4) the extent and amount of harm caused by the use; and, (5) the practicality

of avoiding the harm through adjusting the quantity needed or the method

used.

I. Purpose

Such guidelines might well contain a list of uses which may be

considered "reasonable beneficial use" to satisfy the "purpose" factor.

.._ _____ ________________-2 7-_____








The water codes of many states contain a list of uses or purposes which
166
are deemed beneficial. The Florida Water Resources Act does not

include a section which specifically enumerates the uses to be considered

reasonable beneficial for permit purposes. However, Florida StatJte

373.036, which directs the Department of Environmental Regulation to study

the water resources of the state and formulate a state water use plan,

does delineate uses of water which are to be considered in the state water

use plan for attainment of maximum reasonable beneficial use of water.

The uses include: protection and procreation of fish and wildlife;

irrigation; mining; power development; domestic, municipal and industrial

uses; and all other related subjects including drain( reclamation, flood-
o 167
plain or flood-hazard area zoning, and selection o ervoir sites.

These uses have all been termed "beneficial either statutorily

or judicially by other states.168 4

The fact that the list of ue s not appear in the sections of the

Act dealing with consumpt V permits does not mean that the list is

not applicable to p tas well as to the state water use plan. Indeed,

the Florida 1 t tutory construction is very clear that a statute

should be const ued in its entirety rather than have each provision examined

separately. The Florida Supreme Court has said that all parts of a

chapter must be considered and harmonized so that the whole scheme of the

Legislature in enacting the legislation will be given effect.170

The section of the Florida Water Resources Act which directs the

Department of Environmental Regulation to prepare a state water use plan

which will attain maximum reasonable beneficial use of water for the purposes
171
enumerated above should not stand by itself. In order that the purpose(

of the Legislature be given effect, the uses considered to be appropriate

under the water use plan should similarly be considered appropriate for a

permit program.

-28-









2. Economic Value

Economic value is the second factor which should be included in

guidelines for consumptive use permitting. Formulation of the state water

plan requires consideration of both the maximum economic development
172
of water resources consistent with other uses and the prevention of
173
uneconomical uses of water resources. Because it is clear that the

Legislature intended economic value to be a factor in water use, an

applicant for a permit should be required to show that his use will be

efficient and non-wasteful.

3. Social Value

The social value factor includes considerations of public health and
174
welfare. Professor Trelease suggests that this factor be implemented

through a preference system for water allocation.175 Pre )ce systems

are established in some states by statute. f17oes not specifically

set preferences among various ussr the Department of environmental

Regulation (DER) s. ut in connection with the state water use plj.,

to designatch would enhance or improve water resources in an area
177
as preferred uses for that area. In addition, the permitting agency is

authorized to decide between competing applications for an inadequate

water supply on the basis of public interest.7 Each of these provisions

implies some system of preferences. The states which have preference systems

do not agree as to the order in which uses are to be preferred.

If a preference system is found to be desirable, guidelines for pre-

ferences in permitting in Florida might give examples of uses that will

result in enhancement or improvement of water resources. Additional uses

might then be ranked according to their importance to public health and
180
welfare. Preferences might well be area-specific. For example, some


-29-








areas might have a high priority for mining uses while others would rank

irrigation at the top of their list. Therefore, although some

recommendation as to adoption of preferences could be made at the state

level, this is an area where the water management districts appear to be

best able to formulate rules.

One other consideration that should be mentioned in the social value

area is the factor of suitability of the water course. The FWRA is D:r-

meated with strong emphasis on environmental values. Specific guide-

lines to preserve environmental values may not be necessary with respect

to a permit program because of the statutory requirements,but these

values should not be overlooked.

4. Harm Caused and Ability to Avoid Harm

The three factors of extent and amount of harm caused to others,

practicality of avoiding harm, and practicality of adjus uant ity

do not apply to issuance of the initial peritr upp ies'are

adequate. However, at a i plies are low with little

water availab tng, these factors should be considered with

regard to a locations for a permit for an existing use under F.S. 373.226,

applications for renewal of a permit under F.S. 373.349(3), or even

applications for an initial permit. One method of applying these factors

in water short areas would be to issue short-term permits until the permitting

agency builds up experience. In this manner, quantities could be adjusted

more often, ensuring that an early permit holder was not preventing water

use by others because of an over-allocation.

5. Protection of Existing Values

The final factor of protection of existing values comes into play both

when a permit is sought for an existing use and when application is made

182
for renewal of a permit. This factor was intended to protect riparian

-30-









rights under the eastern system and rights of a prior appropriator under

the western system. Although the Florida Legislature apparently abolished

the riparian doctrine it did not institute the western system of
p184
appropriation in perpetuity. Therefore, the factor is relevant in

Florida only insofar as valuesestablished by permit are to be protected.

The FWRA specifies that preference shall be given to a renewal application

when it serves the public interest equal ly as well as an initial application
185
and both are competing for an inadequate water supply. This provision

gives some effect to the factor. Further protection could be given to

existing values by making the time duration of permits the aximum 20

years allowed. Whether such a regulation is proper ds on the weight

given to this final factor. The legislature e y did not place major

importance on such protection or grea forts would have been made to

preserve riparian rights or I .J e permit time in the statute.

However, because the fe permit duration given to the adminLstering

agency, by the re, provides for a time period In which to correct

errors, it is recommended that no hard and fast guidelines be established

for this factor.

6. Water Shortage Plan

One final point should be discussed with regard to determination of a

"reasonable beneficial use." As the California court has said, a use

that may be reasonable beneficial in a time of water surplus may not be
186
reasonable beneficial in a time of water shortage. Because Florida

is subject to periodic droughts, water shortages will arise. Therefore,

formulation of the water shortage plans provided for in F.S. 373.246 is
187
important. The water shortage plan is required at times when the water

is not sufficient for all permitted uses. The "reasonable beneficial"

analysis can be applied to decide priorities in a water emergency by use of

,.31-







the factors appliec ` permitting. The holder of onsumptive use permit

is entitled to some notice of his priority status in an emergency, and these

plans should be completed as rapidly as possible.

Three of the six water management districts currently have some form
188
of water shortage plan. However, development of such plans should not be

left until a shortage arises. Such planning should be done in anticipation

of crises rather than in reaction to them. Therefore, it is recommended

that DER issue guidelines calling for the prompt establishment of water

shortage plans. These plans, however, should be developed on the district

level to allow participation by those likely to be most affected as well

as because of their site-specific nature.


VII. CONCLUSION

The term "reasonable beneficial use", adopted he Florida Legislature

in the Florida Water Resources Act of 1972, concept which may be new

to the statute books but which has a w I eloped meaning in the area

of water law. The term is found i case law of both California and

South Dakota. It arises also i visions involving correlative rights.

In addition to the w from other jurisdictions, the Model Water

Code and its comment I be used as a guide for decisions of legislative

intent in enacting the "reasonable beneficial use" standard. Because the

Code sought to combine the best features of eastern and western water law,

an analysis of each system is useful. The analysis provides a set of factors

used by courts in determining the validity of a proposed water use under

each system.

Examination of the factors shows a substantial overlap. In fact,

the two systems only differ in two major respects. The first is that the

eastern system protects the rights of riparian landowners while western

law protects the rights of water users according to seniority of use.

The second difference lies in the permanence of the water use with riparian

-32-










uses subject to adjustment in favor of other riparians while appropriative

rights are perpetual unless waste can be established and a right reduced

accordingly.

The similarities of the two systems of water law include exa-mination

of the purpose of the use, its economic and social values, and a balancing

of the harm caused by the use with the ability to avoid the harm. Although

both systems originally were quite different, through the years "beneficial

use" has taken on "reasonableness" factors and "reasonable use" has acquired

"beneficial" overtones.

The provisions of the FWRA have been shown to be in harmony with the

factors common to the two systems of water law. The Depar ment of

Environmental Regulation and the water management di t ts when imple-

menting the FWRA through regulations or develop the state water use

plan should develop guidelines in light of he mmon factors to ensure that

the administrative actions will also ize with legal precedents.

The Florida Legislature, i nactment of the Florida Water

Resources Act of 1972, too i gressive and innovative step toward handling

the problems of cons Ir use of water in the state. It is now up to

the administration a- ncies to follow through with a program which imple-

ments the law in a manner which not only will withstand challenge, but

will also carry out to the fullest extent possible the legislative purpose

of seeing to it that Florida's precious water resources are used in a manner

which is reasonable, beneficial and consistent with the public interest.











-33-










FOOTNOTES

1. Fla. Stat_ 373.203-373.249 (1977).

2. Fla. Stat. 373.219(1) (1977).

3. See Florida Administrative Code (1978). Chapter 16-G (Northwest Florida
Water Management District); Chapter 16-H (Suwannee River Water Management
District); Chapter 161-2 (St. Johns River Water Management District);
Chapter 16J-2.07-2.16 (Southwest Florida Water Managerlnt District);
Chapter 16K-2.01-2.16 (South Florida Water M-nagemnent District).

4. Fla, Stat. 373.223(1) (1977).

5. Fla. Stat- 373.019(5) (1977).

6. "[E]very man has a right to have the ado of a flow of water in his
own land without diminution or alterat Bealey v. Shaw, 6 East 208,
102 Eng. Rep. 1266 (K.B. 1805); Su vv. egot. Popham 166, 79 Eng. Rep.
1263 (K.B. 1625); Wright v. Howa Slim & Stu. 190, 57 Eng. Rep. 76
(Ch. 1823); Lauer, The Common_ ground of the Riparian Doctrine,
28 Missouri L, Rev, 60 (1963 ton and Gray, Legal Control of Con-
sumptive Water Use by Pen -hia Power Plants, 80 Dick. L. Rev. 353,
365 (1976).

7. F. Maloney. S. Pl n r F. Baldwin,.Water Law and Administration, 112.1
(196) (hereina Wed as Water Law and Adinistration.

8. "All that a requires of the party, by or over whose land'a stream
passes, is, hat he should use the water In a reasonable manner, and so
as not to destroy or render useless, or materially diminish, or affect
the application of the water by the proprietors below on the stream."
3 Kent, Commentaries 354. (st ed. 1828); Marquis, Freeman, Heath, Jr.,
The verment for ew Water Rqights Laws In the Tennessee Valley States,
23 Tenn. L. Rev, 797, 807 (1955)(citing 2 Farnham, Waters and Water
Rig 5s)4 (19-04), Restatement of Torts, C-.4-T, top-3, pp. 34-
342 (1939)) ;1A Thompson, Eea PrLopert 260 (Grimes ed. 1964).

9. "The true test of the principle and extent of the use is whether it Is
to the Injury of the other proprietors or not." Tampa Water Works Co.
v. Cline, 20 So. 780, 782 (Fla. 1896) quotingq Story, J. in Tyler v.
Wllkinson, 4 Mason 397, 24 F. Cas. 472 (D.R.I., 1827); Restatement
(Secondj of Torts, 850A (hereinafter cited as Restatenent1 (2d); 78 Am. Jur.
2d Waters 283 (1975); 93 C.JS. Waters 11 (1956).

10. Dimrmock v. City of New London, 245 A. 2d 569, 574 (Conn. 1968).

11. Id. at 572, 573.

12. Tampa Waterworks v. Cline, 20 So. 780, 782 (Fla. 1896).


-34-








13. Taylor v. Tampa Coal Co., 46 So. 2d 392, 394 (Fla. 1950)

14. The final draft of the Restatement (Second) of Torts has been approved
and should be available early in 1979. Citations in this paper are to
Section 850A of the final draft. Section 850A is substantially the same
as Section 850B of Tentative Draft No. 17 of the Restatement (Second) of
Torts which is the draft currently available.

15. Restatement (2d), supra note 9, 850A. If the sentence defining "rea-
sonable beneficial use" in Fla. Stat. 373.019 were broken up into its
component parts the resulting list of factors, together with the re-
maining factors to be considered in Fla. Stat. 373.223(b) and (c),
would bear a striking resemblance to the unJerilined key words in the
Restatement (2d)'s list of factors. This resemblance is consistent
with and lends further support to the conclusion that the legislature
Intended to employ the term "reasonable" use in its technical sense,
pregnant with common law factors to guide the discretion of adminis-
trative agencies. Compare:

Restatement (2d) Fla. Stat. 373.019 & 373.223

Purpose "purpose and nrer"
Suitability P

Economic value "fco efficient utilization"

Social value .onslstent with the public interest"

Adjusting the quantity "such quantity as is necessary"

Protection of ues "interference with existing uses"

16. "(A]ll (court ) expressly state the existence of the preference for domestic
use". Restatement (2d), supra note 9, 850A, comment c; Evans v. Merri-
weather, 3 Scam., 492 (Ill, 1842); accord Davis, Coblentz, & Titelbaum,
Water Law of the Eastern States, in Waters and Water Rights 614.2 at 78,
79 (R. E. Clark ed. 1976)(hereinafter cited as Waters).

1.7. Thompson v. Enz, 154 N.W.2d 473, 483 (MIch. 1967).

18. Taylor v. Tampa Coal Co., 46 So. 2d 392, 394 (Fla. 1950).

19. Id.

20. Beuscher, Appropriation Water Law Elements in Riparian Doctrine States,
10 Buffalo L, Rev. 448, 452 (1961)(citing, 6A American Law of Propirty
28.37 TA.J. Casner ed. 1952); Waters, supra, note 6 642; 93 C.J.S.
Waters 12 (1955).

21. Fla. Stat, 373.219(1) (1977).




-35-







22. The RestatemmenL 2d) notes a split of authoriLy concerning whether a
large entity may claim the domestic preference, and cites as denying the
preference to commercial or public entitles: Emporia v. Soden, 25 Kans.
410 (1881); Purcellvlle v. Potts, 179 Va. 514, 19 S.E. 2d 700 (1942)
(city); Salem Mills Co. v. Lord, 42 Ore. 82, 69 P. 1033 (1902)(peniten-
tiary); United States v. Fallbrook Pub. Util. Dist., 109 F. Supp. 28
(S.D. Cal. 1952)(military camp); contra: Canton v. Shock, 66 Ohio St.
19, 63 N.E. 600 (1902)(city); Filbert v. Dechert, 22 Pa. Super. Ct.
362 (1903)(insane asylum). Restatement (2d supra note 9, 850A.
The split of authority has continued. Cases denying a domestic
preference to large entitles: Kennebunk, Kennebunkport and Wells Water
Dist. v. Maine Turnpike Auth. 71 A.2d 520 (Me. 1950); Oklahoma Water Re-
sources Bd. v. Central Okl. Master Conservancy Dist., 464 P.2d 748 (Ok1.
1968)(prior appropriation state); but see Lingo v. City of Jacksonville,
522 S. W. 2d 403 (Ark. 1975)(groundwater); Higday v. Nickolaus, 469 S.W.
2d 859 (Mo. App. 1971)(groundwater); Thompson at 484; Lake Gibson Land
Co. v. Lester, 102 So. 2d 833, 835 (Fla. 2d D.C.A. 1958)(quoting Harris v.
Brooks, 283 S.W. 2d 129, 130 (Ark. 1955) ).
A trend has been noted toward de-emphasizing the distinction be-
tween natural and artificial uses and recognizing In riparian owners a
common right in the water, with each owner entitled to make such natural
or artificial use of the water as is reasonable under the circumstances with
regard to the uses of the other riparian owners. Maloney, supra note 7,
at 164-165.

23* See Fla Stat 373.119(2.) (1977) which reads in part rational, com-
mercTia, indutrlal, agricultural, or other re uss ." [Emphasis
added.] Although this phrase is found in a6 Monan 6f the statute con-
cerning emergency orders, it may b n arl material with Fla. Stat
373.019 and 373.223. See S a K & K Land Manaqement'Jnc---
326 So. 2d 421, 423 (Fla
24. Hoover v. CrI PV4 ich. 36, 106 N.W. 2d 563 (1960); Harris v. Brooks, 225
Ark. 436, rd 129 (1955); Taylor v. Tampa Coal Co., 46 So. 2d 392
(Fla. 195); 'Johnson v. Selfert, 257 Minn. 159, 100 N.W. 2d 689 (1960);
Bollinger v. Henry, 375 S.W. 2d 161 (Mo. 1964); Restatement (2d), supra
note 9, 850A, comment c.

25. Pollution of waters interfering with the reasonable uses of lower riparian
owners has been held unreasonable. See e-.C., Stanton v. Trustees of St.
Joseph's Colleqge, 254 A.2d 597 (Me. 1969); contra Borough of Westville v.
Whitney Home Builders, 122 A.2d 233 (N.J. Super. Ct. App. Div. 1956).
Although the courts have considered pollution as a factor to be weighed
in the determination of whether a use is "reasonable", it Is important to
note that Florida has a separate statutory scheme for the regulation of
water pollution. See The Florida Air and Water Pollution Control Act,
Fla. Stat. 403.011 et. seg.,(1977). It may be appropriate to separate the
polutiTon factor from other factors to be considered in water allocation.
Waters, supra note 16, at 43, 44.
I= n addition, diversion of water beyond the limits of the watershed,
or beyond a riparian's land, has been held an unreasonable use. Grimes,
Lex Aquae Arkansas, 27 Ark. L. Rev. 429, 443-44 (1973)(hereinafter cited
as Grimes). However, the WRA specifically allows diversion when con-
sistent with the public interest. Fla._Stat 373.223(2) (1972). Further-
more, statutory authorization for diversion of waters to non-overlyinq

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-




lands has been held constitutional In other jurisdictions. See, e._.,
Williams v. City of Witchlta, 374 P.2d 578 (Kans. 1962).

26. Grimes, sura note 25, at 443 (citing Harris v. Brooks, 225 Ark, 436, 283
S.W. 2d 129 (1955) ).

27* Id. (citing Reynolds Metal Co. v. Ball, 217 Ark. 579, 232 S.W. 2d 441
TT950) ).

28. See e.., Tlmm v. Bear, 29 Wis. 254, 266 (1871)(upper riparian's interfer-
ence with stream flow held unreasonable where his mills required 50% more
than the ordinary supply of water in the stream); Davis v. Town of Harrlson-
burq, 116 Va. 864, 83 S.E. 401 (1914)(upper riparian's hydroelectric plant
found adapted to the ordinary capacity of the stream, therefore, detention
of water for reasonabletime during drought held reasonable); Davis v. Get-
chell, 50 Me. 602 (1862)(where volume of small stream in ordinary course
was tound insufficient for any practical use, detention for reasonable time
to make water power useful and valuable held reasonable); azard Powder Co.
v. Somersville Mfg. Co., 78 Conn. 171, 61 A. 519 (1905 ere upper riparian's
water wheel Installation found excellently arrange a a pted to size,
capacity, and varying flows of the river and wh ise was found to
follow the custom of most uses on the river, e was reasonable);
Red River Roller Mills v. Wriqhts, 30 15 N 167 (1883)(use
held unreasonable where lower ripari i*ured and upper riparian failed
to show the character of the st 0 what might be reasonable on one
stream used and adapted for rposes might not be proper upon
another stream of a diff a acter used for different purposes);
Stamford Extract Mfg C amford Rolling Mills Co., 101 Conn. 310,
125 A. 623 (1924 riparian's use held reasonable where discharges
after best a eatment neither substantially nor appreciably
contaminate ter and where many other new factories and cities
were possiblesources of pollution); Thompson v. Enz, 154 N.W. 2d 473
(Mich. 1967); Restatement (_dd), supra note 9, 850A, comment on clause
(b).

29. Taylor v. Tampa Coal Co., 46 So. 2d 392, 393 (Fla. 1950).

30. North Dade Water Co. v. Adken Land Co., 130 So. 2d 894 (Fla. 3d DCA 1961).

31. Restatement (2dj, supra note 9,,850A, comment on clause (c); see e.g.,
Taylor v. Tampa Coal Co., 46 So. 2d 392 (Fla. 1950)(lrrigation versus re-
creational value); Borouqh of Westville v. Whitney Home Builders, 122 A.2d
233 (N.J. Super. 1956)(aesthic impairment and recreational value versus
developers investment); Hiqday v. Nickolaus, 469 S.W. 2d 859 (Mo. App.
1971)(value of city's Investment weighed).

32. Lamb v. Dade Cty., 159 So. 2d 477, 479 (Fla. 3rd D.CA.1964)(Interference
with salinity control system); Higday v. Nickolaus, 469 S.W. 2d 859, 871
(Mo. App. 1971)(assurance of wholesome water supply to public); Borough
of Westville v. Whitney Home Builders, 122 A.2d 233 (N.J. Super. Ct. App.
Div. 1956)(public policy recognizing social Importance of sewage disposal
plants); Hart v. D'Agostinl, 151 N.W. 2d 826 (Mich. App. 1967)(temporary
interference with groundwater allowed where sanitary sewer trunk line


"-3 7-






benefitted the ar'); 42 A.L.R.2d 426 (1972)(pro mety of injunctive re-
lief against dive,sion of water by municipal corporation of public utility).

33. Fla, Stat. 373.019(5) (1972).

34. Restatement (2d), supra note 9, 850A, comment on clause (e)(citing Gehlen
v. Knorr, 101 Iowa 700, 70 N.W. 757 (1897); Elliot v. Fitchburq R.R. Co.,
10 Cush. 191 (Mass. 1852); Hazard Powder Co. v. )ommersvlle Mfq. Co., 78
Conn. 171, 61 A. 519 (1905); Meyers v. Lafayette Club, 197 Minn. 241, 266
N.W. 861 (1936); Helse v. Schulz, 167 Kans. 34, 204 P.2d 706 (1949); BollinQ-
er v. Henry, 375 S.W. 2d 161 (Mo. 1964); Louisville v. Tway, 297 Ky. 565,
180 S.W. 2d 278 (1944); Montelious v. Elsea, 11 Ohio 2d 57, 161 N.E. 2d 675
(1959); See also, Tampa Water Works Co. v. Cline, 20 So. 780 (Fla. 1896);
Lake Gibson Land Co. v. Lester, 102 So. 2d 833 (Fla. 2d D.C.A. 1958).

35. Scott v. Slaughter, 373 S.W. 2d 577 (Ark. 1964+); Conobre v. Fritsch, 11I
N.E. 2d 36 (Ohio App. 1952).

36. Restatement (2d, supra note 9, 850A, clause (f), comments h and i,
(citing Rancho Santa Margarita v. Vail, 11 al. 2d 501, 81 P.2d 533
(1938); Hazard Powder Co. v. Sommersville Mfg 78 Conn. 171, 61 A.
519 (1905); Wilkes v. Perry, 92 Iowa 417, 60 727 (1894); Crowley
v. District Court, 108 Mont. 89, 88 P.2d 23 9); Warner Valeey Stock
Co. v. Lynch, 215 Ore. 523, 336 P.2d 884 ); Colorado Springs v. Bender,
148 Colo. 458, 366 P.2d 552 (1961)(under q stream); Thomas v. LaCotts,
222 Ark. 161, 257 S.W. 2d 936 (1953)).
More recent decisions weighing the cticality of avoiding the harm
include: Scott v. Slaughter, 373 S. 2d 577 (Ark. 1964)(dam lowered 2
feet); MacArtor v. Graylyn Crest 11 m Club, 187 A.2d 417 (Del. Ch.
1963)(groundwater, adjusting methc4 use found impractical); Collens v.
New Canaan Water Company, 234 A. 5 (Conn. 1967)(other sources were
avat able)o.

37 Restatement (2d), supra not t 850A, clause (g), comment j.
See e.g., Menq v. Coffey, 500, 93 N.W. 713 (1903); Harris v.
Brooks, 225 Ark. 436, 283 2d 129 (1955); Harris v. Harrison, 93 Cal.
676, 29 P. 325 (1892); .jgg s v. Muscupiabe Land and water Co., 113 Cal.
182, 45 P. 160 (1896); Moon Bay Land Co. v. Cowell, 173 Cal. 543,
160 P. 675 (1916); B1 Kennedy, 43 111. 67 (1869); Lingo v. City of
Jacksonville, 522 S.i 403 (Ark. 1975)(groundwater); Collens v. New
Canaan Water Co., 2d 825 (Conn. 1967)(groundwater). Although many
of the cases cited e from western prior appropriatlon states, this Is
because these states also recognize, or did recognize, the riparian doc-
trine of reasonable use.
38 Waters, supra note 16, 612 at 42 (citing, Dumont v. Kellog, 29 Mich. 420,
TB-A-TmRep. 102 (1874); Bliss v. Kennedy, 43 Ill. 67 (1967)); accord, 78 Am.
Jur. 2d Waters 285 (1975).

39. Restatement (.gj, supra note 9, 850A, clause (h), comment I (citing Mc-
Carter v. Hudson Cty. Water Co., 70 N.J. Eq. 695, 65 A. 489 (1906)).

40. Id. (citing Strobel v. Kerr Salt Co., 164 N.Y. 303, 58 N.E. 142 (1900);
Harris v. Brooks, 225 Ark. 436, 283 S.W. 2d 129 (1955)).
Another con-nentator has stated flatly that where "different lawful
and reasonable uses are inherently mutually exclusive, the prior In time
will prevail..." Grimes, supra note 25, at 444.
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41 Restatement 2 -sLupra note 9, 850A, clause (1), Mcoent m, citingr
Strobel v. Kerr Salt Co., 164 N.Y. 303, 58 N.E. 142 (1900)); State v. Mich>i s
Pipeline Constr. Inc., 217 N.W. 2d 339 (Wis. 1974)(groundwater); MacArtor v.
Graylyn Crest Ill Swim Club, 187 A.2d 417 (Del. Ch. 1963)(groundwater);
U. S. v. 531.13 Acres of Land, etc., 244 F. Supp. 895 (W.D.S.C. 1965)(com-
pensation due tor public taking of riparian right to use of river flow).

42. U. S. v. Gerlach Live Stock Co., 339 U.S. 725, 70 S. Ct. 955, 94 L. Ed.
1231 (1950).

43. Restatement (2d), supra note 9, 850A, clause (I), comment m (citing
Furrer v. Talent Irrigation District, 466 P.2d 605 (Ore. 1970)).

44. Grimes, supra note 25, at 442 (citing Restatement of Torts 1315, comment
-------- ,,--=----
d (1939)),.

45. Id. (citing Sturtevand v. Ford, 280 Mass. 303, 182 N.E. 560 (1932)(dam
affording no real benefit to upper riparian held unreasonable use);
Weare v. Chase, 93 Me. 264, 44 A. 900 (1899)(wanton opening and closing
of upper riparian's dam gates held unreasonable use)j

46 Id. (citing Timm v. Bear, 29 Wis. 254 (1871)(rip an s power plant which
"required more water than normal stream flow coUa ,rvide held to be un-
reasonable use).

47 Id. (citing Restatement of Torts 853, c ts c, d and e (1939); but
"see Pennsylvania Coa Co. v. Sanderson, 113 a. 126, 6 A. 453 (1886)
"(social value ot coal mining uses hel asonable despite impact on lower
riparian's domestic use).

48. Id. (citing 5 R. Powell, Real P rty 714 (1971); Harell v. City of
'Conway, 224 Ark.To 271 S7W .9 1954)). Note, however, that Florida
law no longer requires use o r1an land. Fla. Stat. 373.223(2)(1977).

49. Id. at 443 (citing 5 RRPol. Real Property 715 (1971)).

50. Id. (citing Ratzlaf ranz Foods of Ark., 250 Ark. 1003, 468 S.W. 2d
239 (1971); Meriw and & Gravel Co. v. State, 181 Ark. 216, 26 S. W.
2d 57 (1930); Ta Control of Stream Pollution, 33 Tex. L. Rev. 370
(1955)).

51. Id. (citing Arkansas Power & Light Co. v. Cash, 245 Ark. 459, 432 S.W. 2d
853 (1968)(flooding); Fink v. Board of Trustees of S. Ill. U., 71 Ill. App.
2d 276, 218 N.E. 2d 240 (1966)(use reasonable where minimal loss to'lower
rlparians).

52. See note 25 supra, concerning diversion and pollution.

53. Thompson v. Enz, 154 N.W. 2d 473, 484 (Mich. 1967)(quoting Gehlen Bros.
v. Knorr, 70 N.W. 757 (Iowa 1897)).

54. Id. at 484.

55. 1 W. A. Hutchins, Water hts Laws in the Ninteen Western Stats, 9


56. N. M. Const. art XVI, 3.

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57. Wvo. Stat. 41-. 957); Utah Code Ann- 73-1- 3) S. D. Comp Laws
Ann. 46-T-8 (1967); Ariz. Rev Stat. 45-101(B)(1956); Nev.Rev. Stat,
53-7.035 (1973); N. D. CenturyCode, 61-04-01.2 (1977) Okla. tat. Ann.
105.2 (1972).

58. E.L, In re Water Rights of Escalante Valley Drainage Area, 10 Utah 2d 1,
348 P.2d 679 (1960).

59. S.D. comp. Laws 46-1-6(6) (1967).

60. ND, CenturLy Coe 61-04-01.1 (1977).
61. Vernon's Tex. Code Ann., Water Code 11.002(5) (1977).

62. Vernon's Tex. Code Ann., Water Code 11.023(a) (1977).

63. Vernon's Tex. Code Ann., Water Code 11.023(b) (1977).

64. Rev. Code of 0Mont 89-867 (2) (1973).

65. Wash. Const art XXI, 1.

66. Rev. Code Wash Ann 90.54.020 (1971).

67. State, Department of Parks v. Idaho Dep tof Water Administration,
96 Idaho 440, 530 P.2d 924, 927 (197 7

68. City and County of Denver f 96 P.2d 836, 842 (Colo. 1939
Even where a court appc fine the term, the definition Itsel does not
set forth actual sta y which to measure whether a use Is beneficial.
For example, the co Supreme Court said, "...beneficial use is deter-
mined...to be of such water as may be necessary for some useful and
beneficial in connection with the land from which it is taken."
State ex rickson v. McLean, 62 N.M. 264, 308 P.2d 983, 988 (1957).
Thus, tt pgh beneficial use may have been defined, the definition is cir-
cular nnce It speaks In terms of "useful and beneficial purpose" without
explaining what will be considered "useful and beneficial".

69. Wiel, What Is Beneficial Use of Water?, 3 Cal. L. Rev. 460, 474 (1915).
Professor Wtel listed the factors which he-- eTt that courts consider In
determining a "beneficial use". These are: (1) whether the transmission
allowance, I.e., the extra amount of water required to get the amount needed
by the appropriator from the water source to his land, is reasonable in de-
gree; (2) whether the "duty of water" at the land is reasonably required;
and, (3) whether a change to a higher duty can be reasonably done with
fairness to all parties.

70. E.g. State ex rel. Silve v. District Court of Tenth Judicial District In
and For Judith Basin County, 69 P.2d 972 (Mont. 1y37).

71. E.g., Meridian v. San Francisco, 13 Cal. 2d,424, 90 P.2d 537 (1939).

72. E._., State, Department of Parks v. Idaho Department of Water Administration,
96 Idaho L440, 530 P.2d 924 (1974).

73. E.a, Tanner v. Bacon, 136 P.2d 957 (Utah;1943).

74. E.go, Evans v. City of Seattle, 47 P.2d 984 (Wash. 1935).

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75. Rev. Code of Mon, 89-867(2) (1973).

76. In re Water Rights of Escalante Valley Drainage Area, 10 Utah 2d 77, 348
P.2d 679 (1960).

77. 0E_, State Water Resources Control Board v. Forni, 126 Cal. Rptr. 851, 54 Cal.
App. 3d 743 (Ct. App. 1976).

78. E.g,Allen v. Petrick. 222 p. 451 (Mont. 1924).

79. Wiel, supra note69 at 475.

80. In re Water Rights of Escalante Valley Drainage Area, 10 Utah 2d 1, 348
P.2d 679, 682 (1960).

81. Wayman v. Murray City Corporation, 23 Utah 2d 97, 458 P.2d 861, 864 (1969).

82. Id,

83. 62 N.M. 264, 308 P.2d 983 (1957).

84. Id. at 988.

85. Tudor v. Jaca, 164 P.2d 680 (Ore. 1945).

86. In re Water Rights of Deschutes River anries, 286 P. 563
(Ore. 1930).

87. Id. at 577. 4

88. 1 W.A, Hutchins, Water ws n the Nineteen Western States, 499
(WIT"--- \V

89. Id. at 503 \)

90. See, e' Itn re Water Rights of Deschutes River and Tributaries, 286 P.
563 (Ore. 1930); Wayman v. Murray City Corporation, 23 Utah 2d 97, 458
P.2d 861 (1969).

91. E.g., S.D. ComD. Laws Ann. 46-1-4 (1967)("...suchi right does not and
shall not extend to waste...").


92. Schodde v. Twin Falls Land and Water Company, 224 U.S. 107, 32 S. Ct.
470, 56 L. Ed. 686 (1912); State ex rel. Erickson v. McLean, 62 N.M.
264, 308 P.2d 983 (1957); Tudor v. Jaca, 164 P.2d 6U0 (Ore. 1945).

93. In re Water Rights of Escalante Valley Drainage Area, 10 Utah 2d 1,
348 P.2d 679 (1960); Tudor v. Jaca, 164 P.2d 680 (Ore. 1945); Erickson
v. McLean, 62 N.M. 264, 308 P.2d 983 (1957).

94. Basey v. Gallagher, 87 U.S. 670, 20 Wall. 670, 22 L. Ed. 454 (1874);
Rev. Code Wash. Ann. 90.54.020(2) (1971).

95. In re Water Rights of Escalante Valley Drainage Area, 10 Utah 2d 1,
348 P.2d 679 (1960); Tudor v. Jaca, 164 P.2d 680 (Ore. 1945).


-41-







96. Basey v. Gallac' 87 U.S. 670, 20 Wall. 670 'N Ed. 452 (1874);
Schodde v. Twin calls Land and Water Company, 2L4 U.S. 107, 32 S.Ct.
470, 56 L. Ed. 686 (1912).

97. Wayman v. Murray City Corporation, 23 Utah 2d 97, 458 P.2d 861 (1969);
In re Water Rights of Escalante Valley Drainage Area, 10 Utah 2d 1,
348 P.2d 679 (1960).

98. State ex rel Erickson v. McLean, 62 N. M. 264, 308 P.2d 983 (J957);
Worley v. United States Borax and Chemical Corporation, 78 N.M. 112,
428 P.2d 651 (1967); In re Water Rights of Deschutes River and Tribu-
taries, 286 P. 563 (Ore. 1930); Fairfield Irrigation Company v. Cooper-
ative Security Corporation, 18 Utah 2d 93, 416 P.2d 641 (1966).

99. "Reasonable beneficial use" Is a term sometimes used In applying the
western doctrine of correlative rights in ground water. See, Volkman v.
City of Crosby, 120 N.W. 2d 18 (N.D. 1963); Farmers Investment Company
v. Bettway, 113 Ariz. 520, 558 P.2d 14 (1976); Bristor v. Cheatham, 75
Ariz. 227, 255 P.2d 173 (1953); Undlin v. City of Surrey, 262 N.W. 2d
742 (N.D. 1978); State v. Ponten, 463 P.2d 150 (Wash. 1969).

100. The other is South Dakota, See text accompanying notes 119-121, infra.

101. al, Const art. 10, 2 (formerly art. 14, 3).

102. Gin S. Chow.v. City of Santa Barbara, 217 Cal. Rptr. 673 P.2d 5 (1933).

103. Tulare Irrigation District v. Lindsay-Strathmon)n District
3 Cal. 2d 489, 45 P.2d 972 (1935) (herein f er e as Tulare).

104. Id. at 997.

105. Id. at 1007. \ \J

106. Id. *

107. Joslin v. Marin Municipal Water District, 60 Cal. Rptr. 377, 429 P.2d
889 (1967).

108. Id.; see also, State Water Resources Control Board v. Forni, 126 Cal. Rptr
851, 54 Cal. App. 3d 743 (1st Dist. 1976)(in which the use of water from a
river for frost protection of a vineyard was held unreasonable because of
the insufficient amount of water available to all users).
109. Gin S. Chow v. City of Santa Barbara, 217 Cal. Rptr. 673, 22 P.2d 5 (1933).

110. fMajoney, R. Ausness & J, ;-Jr-s, A Model Water Code (1972) (herein-
c ted as Malone. The legislature had the Model Water Code before
It when drafting the Act.

11. Id., 1.03(4), at 4.

112. Id., 1.03, commentary at 86-8;.

113. Id.

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114. Id. at 171.

115. I.

116. For example, drip Irrigation might be the most economically efficient
method for watering a given crop. Therefore, a permit could be issued
for the needed amount of water even though some other crop using the
same amount of water might bring a greater income. The decision on
economic value would be left to the farmer so long as his method of
use was not uneconomical.

117. Maloney, supra note 110, at 172.

118. California case law begins in 1933 with Gin S. Chow, supra note 109.

119. S.D. Comp. Laws 46-1-4 (1967).

120. S.D. Comp. Laws 46-1-6 (1967).

121. Belle Fourche Irrigation District v. Smiley, 176 N.W. 2d 239 (S.D. 1970).

122. F. Trelease, The Concept of Reasonable Beneficial Use in the Law of Surface
Streams, 12 Wyo. L. J. 1 (1957) (hereinafter cited as Trelease).

123. id. at 19.

124. Trelease, The Model Water Code, The Wrator and the Goddam
Bureaucrat, 14 Nat. Res. J. 208 10 1 )

125. See, generally, Trela ote 122.

126. See text notes 15-54 for reasonable use factors and notes 93-
98 1 use factors.

127. Seetext accompanying notes 6--54, supra.

128. See text accompanying notes 93-98, supra.

129. See text accompanying notes 18-27 and notes 55-76,supra.

130. 16 U.S.C, 1271 et. seq, (1968).

131. Water Law and Administration, supra note 7, 21.

132. Nebraska is an example of a western state which requires that an appropria-
tion cannot harm a riparian's Interest in use of water unless the utility
of the appropriation out weight the gravity of the harm. Wasserburger v.
Coffee, 180 Neb. 149, 141 N.W, 2d 738, 745-46 (1966). California also
examines rights of both riparians and prior appropriators Tulare Irriga-
tion District v. Lindsay-Strathmore Irrigation District, 3 Cal. 2d 489,
45 P.2d 972 (1935).

133. Water Law and Administration, sura note 7, 65.



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134. If a potential appropriator can show waste of water by a senior appropria-
tor, he then has an appropriative right, but the showing of waste involves
questions of efficiency and economy rather than a showing of harm.

135. Tulare, supra note 103 at 1007.

136. Id.

137. Maloney, supra note 110, at 171.

138. Water Law and Administration, supra note 7, 60.

139. Id. at 64.

140. Id. at 65.

141. Id.

142. See text accompanying notes 125-134, supra.

143. See, eg, State, Department of Parks v. Idaho Dept. of Water Administra-
tion, 96 Idaho 440, 530 P.2d 924 (1974). See also, Ore. Rev.*Stat. 538-
110--300 (1953). But see, Cascade Town Co. v. Empire Water & Power Co.,
181 F. 1011 (Colo. 1910)(holding that al ui nation was a beneficial
use, preservation of a beat tatutorily authorized
and there re t A .

144. a. .O chapter 373 makes no provision for compensation when a new
use supp ants an existing use.

145. Fla. Const, Art. II, 3 provides: "No person belonging to one branch
shall exercise any powers appertaining to either of the other branches
unless expressly provided herein."

146. Cross Key Waterways v. Askew, 351 So. 2d 1062, 1066 (1st D.C.A. 1977).

147. Conner v. Joe Hatton, Inc., 216 So. 2d 209, 211 (Fla. 1968)(quoting
State v. Atlantic Coast Line Railway Co.. 47 So. 969, 976 (Fla. 1908).

148. Department of Legal Affairs v. Rogers, 329 So. 2d 257, 263 (Fla. 1976);
Sarasota County v. Barg,. 302 So. 2d 737, 741 (Fla. 1974).

149. Conner v. Joe Hatton, Inc., 216 So. 2d 209, 211 (Fla. 1968).

150. Id. at 212-13.

151. State, Department of Citrus v. Griffin, 239 So. 2d 577, 580 (Fla. 1970);
Conner v. Joe Hatton, Inc., 216 So. 2d 209, 212 (Fla. 1968).

152. Albrecht v. Department of Environmental Regulation, 353 So. 2d 883, 886
(Fla. 1st D.C.A. 1978).
153. Fla, Stat 373.019(5) (1972).


S4 --









154. Fla, Stat. 373.019(5)(1972).

155. Maloney, srpra note 110, at 171.

156. 2A Sands, Sutherland Statutory Construction, 47.30 at 152 (4th ed. 1973);
Davis v. Stroie,7 9 o. 2d 46, 71 ,F1a.- 1949)(Barns, J., concurring)
(quoting 50 Am. Jur. 265, Statutes, 278); Williams v. Dickenson,
9 So. 847, 8491(Fla. 1891); 73 Am. Jur. 2d., Statutes 165 (1974).

157. *Department of Lecal Affairs v. Rogers, 329 So. 2d 257, 264 (Fla. 1976),
citing Winters v. New York, 333 U. S. 507, 515, note 4, 68 S. Ct. 665,
92 L. Ed. 840 (1948), Connally v. General Const. Co., 269 U. S. 385,
391, 46 S. Ct. 126, 70 L. Ed. (1926).

158. Dept. of Legal Affairs v. Rogers, 329 So. 2d 257, 268 n. 4 (Fla. 1976)
(England, J., concurring)(quoting Conner v. Joe Hatten, Inc., 216 So. 2d
209, 213 (Fla. 1968); State, Department of Citrus v. Griffin, 239 So. 2d
577, 581 (Fla. 1970).

159. Fla. Stat. 373.016 (1977).

160. Albrecht v. Dept. of Environmental Regulation, 353 So. 2d 883,'886 (Fla.
1st D.C.A. 1978).

161. State, Dept. of Citrus v. Griffin, 239 So. 2d 557, 581 (F1 0).

162. See, e. Dept. of Legal Affairs v. Rogers, 329 So.2d t 69 (Fla.
1976); Albrecht v. Dept. of Environmental Regulation 1So. 2d 883,
886-87 (Fla. 1st D.C.A. 1978).

163. Se e, Fla. Stat. 373.026; 373.043; 373. ; 373.113; 373.126; 373.171;
373.175 1977T.

164. Fla. Stat. 373.133 (1977). In addition r management district rules
"are subject to review by the Governor ibinet.

165. Fla. Stat. 373.114 (1977); Albre Dept. of Environmental Regulation,
353 So. 72 883, 887 (1st D.C.A 19 .

166. See, e Vernon's Tex. C n., Water Code 11.023(b) (1977); Rev. Code
Wash. Ann. -

167. Fla, Stat. 373.036 (1977 .

168. See text accompanying notes 62-76, supra.

169. Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation District, 274 So.
2d 522 (Fla. 1973).

170. Wilensky v. Fields, 267 So. 2d 1 (Fla. 1972).

171. Fla. Stat. 373.036 (1977).

172. Fla. Stat, 373.036(2)(b) (1977).

-45-








173. Fla. Stat. 373.036(2)(e) (1977).

174. See text accompanying note 43-44, supra.

175. Release, sura note 122 at 20.

176. E.L Vernon's Texas Code Ann., Water Code, 5.024 (1972).

177. Fla. Stat. 373.036(9) (1977).

178. Fla. Stat. 373.233(1) (1977).

179. Release supra note 122 at 18.

180. Domestic use of water, considered to have highest preference in the
western states, is exempted from permitting by Fla Stat 373.219(1)
(1977).
181. See Fla. Stat. 373.016 (policy to preserve natural resources); Fla. Statr
373.? -i(eveTopment of state water use plan; Fla. Stat. 373.042{estab-
lishing of minimum flows and levels); Fla. Stat.373.223(3)(r3servation
of water to protect fish and wildlife)T; FTa. Stt. 373.246(7)(water emergency)

182 Fla. Stat.373.226-239(3) (1977).

183. See, Fla. Stat. 373.226(1) (1977).

184. Duration of permits is for a maximum of 20 yeStat 373.236(1)
(1977). e_ .

185. Fla Stat, 373.233(2) (1977).

186. Tulare, supra note 103.

187. See, .g Rules o and Southern Florida Flood Control District,
Chapter 16CA tar 16CA-2.12 2.15 (Adopted December 14,
1973o q
188. See, Florida Administrative Code (1978). Chapter 16 1-2.51-2.54 (St. Johns
River WMD water shortage plan); Chapter 16 K-2.12-2.15 (South Florida Water
Management District plan).











-46-







APPENDIX A '

The purpose of this Appendix is to provide a convenient reference to

the appropriate sections of the constitution and statutes of the states which

base their water law on a "beneficial use" standard. A short, and not exhaustive,

summary of the case law relevant to determining what constitutes "beneficial"

or "reasonable beneficial" use is also included as are references to additional

useful sources.

The Appendix is divided into two sections e first section includes

the eighteen states generally called the n" states for purposes of water

law. The second, shorter section cont ins several "eastern" states which have

recently enacted new water use leg jion employing the term beneficial use.


Sern States

ALASKA

Constitution: Art. 13.

All surfa undersurface water, reserved to the people for common use,

except mineral and medicinal waters, are subject to appropriation. ...Except

for public water supply, an appropriation of water shall be limited to state

purposes and subject to preferences among beneficial uses, concurrent or other-

wise as prescribed by law and to the general reservation of fish and wildlife.

Statutes: Alas. Stats. (1966).

46.15.030 Wherever occurring in a natural state, the waters are reserved

to the people for common use and are subject to appropriation and beneficial

use as provided in this chapter.

46.15.080(a) The commissioner shall issue a permit if he finds that

(1) rights of a prior appropriator will not be unduly affected;

(2) the proposed means of diversion or construction are adequate;









(3) the proposed use of water is beneficial; and

(4) the proposed appropriation is in the public interest.

(b) In determining the public interest, the commissioner shall consider

(1) the benefit to the applicant resulting from the proposed appropriation;

(2) the effect of the economic activity resulting from the proposed appro-

priation;

(3) the effect on fish and game resources and on public recreational oppor-

tunities;

(4) the effect on public health;

(5) the effect of loss of alternae te s of water that might be made within

a reasonable time if not preclu hindered by the proposed appropriation;

(6) harm to other per suiting from the proposed appropriation;

(7) the intent a ity of the applicant to complete the appropriation;

and

(8) th ct upon access to navigable or public waters.



46.15.260 (3) "beneficial use" means a use of water for the benefit of the

appropriator, other persons or the public, that is reasonable and consistent

with the public interest, including, but not limited to, domestic, agricultural,

irrigation, industrial, manufacturing, mining, power, public, sanitary, fish

and wildlife, and recreational uses.

Case law: No relevant cases.

Other Sources: F. Trelease, Alaska's New Water Use Act, 2 Land & Water L.R. 1 (1967).



ARIZONA

Constitution: Art. 17, 2.

All existing rights to the use of any of the waters in the State for all




ii








useful or beneficial purposes are hereby recognilied and confirmed.

Statutes: Ariz. Rev. Stats. (1956).

45-101 (A) The waters of all sources, flowing in streams, canyons, ravines

or other natural channels, or in definite underground channels, whether perennial

or intermittent, flood, waste or surplus water, and of lakes, ponds and springs

on the surface, belong to the public and are subject to appropriation and bene-

ficial use as provided in this chapter.

(B) Beneficial use shall be the basis, measure and imit to the use of water.

45-141 (A) Any person may appropriate unappropr water for domestic,

municipal, irrigation, stock watering, water a1 wildlife, including fish,

mining uses, for his personal use or for del ery to consumers ...

45-180 (1) "Beneficial use: includl t is not limited to, use for domestic,

municipal, recreational, wildl including fish, agriculture, mining, stock

watering and power purpose d

Case law:

a) No cas efining "beneficial use".

b) Reasonab e, beneficial use under correlative rights doctrine:

Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d. 173 (1953) (adopting reasonable

use doctrine for percolating waters and stating factors).

Jarvis v. State Land Department, 106 Ariz. 506, 479 P.2d 169 (Ariz. 1970)

(requiring beneficial use of percolating waters on overlying land).

Farmers Investment Company v. Bettway, 113 Ariz. 520, 558 P.2d 14 (1976)

(requiring a reasonable, beneficial use of percolating waters on the overlying

land).

c) Other relevant cases:

Salt Rivej Valley Water Users Association v. Kovacovich, 3 Ariz. App. 28,

411 P.2d 201 (1966) appropriatorr who reduces amount needed through conservation

practices loses right to appropriate am-ount saved).


iii









CALIFORNIA

Constitution: Art. 10, 2 (formerly Art. 14, 3)

It is hereby declared that because of the conditions prevailing in this

State the general welfare requires that the water resources of the State be

put to beneficial use to the fullest extent of which they are capable, and

that the waste or unreasonable use or unreasonable method of use of water be

prevented, and that the conservation of such waters is to be exercised with a

view to the reasonable and beneficial use thereof in the interest of the people

and for the public welfare. The right to water or to the us f flow of water
in or from any narural stream or watercourse in this t s and shall be

reasonably required for the beneficial use to be le d, and such right does

not and shall not extend to the waste r eaonable use or unreasonable

method of use or unreasonable m diversion of water.

Statutes: Cal. Water Cod .43).

Repeats Art, the constitution.

Case law:

California case law is discussed in the section of the text dealing with

"reasonable beneficial" use.



COLORADO

Constitution: Art. XVI, 5

The water of every natural stream, not heretofore appropriated, within

the state of Colorado, is hereby declared to be the property of the public,

and the same is dedicated to the use of the people of the state, subject to

appropriation as hereinafter provided.








iv









late and limit the use thereof for power purposes.....

Statutes: Idaho Code

42-101 Water being essential to the industrial prosperity of the state, and

all agricultural development throughout the greater portion of the state depen-

ding upon its just apportionment to, and economic use by, those making a beneficial

application of the same, its control shall be in the state, which, in providing

for its use, shall equally guard all the various interests involved. ...the

right to the use of any of the waters of the state for useful or beneficial

purposes is recognized and confirmed;...

42-104 The appropriation must be for some useful or be rpose..

Case law. N

State, Department of Parks v. Id t ent of Water Administration,

96 Idaho 440, 530 P.2d 924 Idaho supreme court, deciding that an

appropriation by thi recreation and preservation of scenic views was proper,

noted that apparently no court had ever attempted to define "beneficial use.")



KANSAS

Constitution: No relevant provision.

Statutes: Kans. Stats. Ann. (1977).

82a-701(f) "Appropriation right" is a right...to divert from a definite water

supply a specific quantity of water at a specific rate of diversion...and to

apply wuch water to a specific beneficial use...

82a-703 Subject to vested rights, all waters within the state may be appropriated

for beneficial use as herein provided.

Case law:

State ex rel Emery v. Knapp, 167 Kan. 546, 207 P.2d 440 (1949) (Kansas

supreme court upheld constitution of Kansas water act challenged as unconstitu-

tional delegation of legislative and judicial powers to administrative branch).









Weaver v. Beech Aircraft Corp., 180 Kan. 224, 303 P.2d 159 (1956) (discussion

of whether defendant's beneficial use of water was unreasonable).



MONTANA

Constitution: Art. IX, 3.(1)

All existing rights to the use of any water, for any useful or beneficial

purpose are hereby recognized and confirmed.

Statutes: Rev. Code of Montana (1973) 89-867(2) "Beneficial use" means a

use of water for the benefit of the appropriate o cer persons, or the public,

including, but not limited to, agriculture ing stock water), domestic,

fish and wildlife, industrial, irrigation ing, municipal power, and recrea-

tional uses; providing, however, that use of water for slurry to export coal

from Montana is not a beneficial us.

89-867(10) "Waste" means th asonable loss of water through the design

or negligent operation of a ropriation or water distribution facility,

or the application of tet o anything but a beneficial use.

89-866(1) The leg' ve declares that any use of water is a public use, and

that the waters hthe state are the property of the state for the use of

its people and are subject to appropriation for beneficial uses as provided in

this act.

Case law:

Allen v. Petrick, 222 P.451 (Mont. 1924) (limiting quantity of water

appropriated to that which is economically applied to a beneficial use).



NEBRASKA

Constitution: Art. XV, 4






vii









The necessity of water for domestic use and for irrigation purposes in the State

of Nebraska is hereby declared to be a natural want.

Art. XV,5: The use of the water of every natural stream within the State of

Nebraska is hereby dedicated to the people of the State for beneficial purposes,

subject to the provision of the following section.

Art. XV,6: The right to divert unappropriated waters of every natural stream

for beneficial use shall never be denied except when such denia is demanded

by the public interest.

Art. XV, 7: The use of the waters of the State for p purposes shall be deemed

a public use...

Statutes: Rev. Stat. of Neb (1974)

46-204 The right to divert unappropr'* waters of every natural stream for

beneficial use shall never be deni

Case law:

Meng.v. Coffee, e 00, 93NW 713 (1903) (rule of reasonable use of

water for irrigate' iparian )

Application f Frenchman Valley Irrigation District, 167 Neb. 78, 91 NW2d

415 (1958) (irrigation a beneficial use).

Wasserburger v. Coffee, 180 Neb. 149, 141 NW 2d 738 (1966) appropriatorr

liable to downstream riparian for damages caused by unreasonable appropriation).

In re Metropolitan Utilities District of Omaha, 179 Neb. 783, 140 NW 2d 626

(1966) (appropriation allowed where riparian owner's right of reasonable use

not impaired).

Other sources:

57 Neb L. Rev. 199 (1978) (discussion of the need for and impact of legis-

lation in Nebraska defining the term "beneficial use").






viii









NEVADA

Constitution: No relevant provision.

Statutes: Nevada Rev. Stat. (1973)

533.025 The water of all sources of water supply within the boundaries of the state

whether above or beneath the surface of the ground, belongs to the public.

533.030

(1) Subject to existing rights, all such water may be appropriated in

the chapter and not otherwise.

(2) The use of water, from any stream system as provided in this chapter

and from underground water as provided in NRS 534.080, rny recreational

purpose, is hereby declared to be a beneficial u

533.035 Beneficial use shall be the basis th.asure and the limit of the

right to the use of water.

533.060(1)

Rights to the us water shall be limited and restricted to so

much thereof as ma essary, when reasonably and economically used for

irrigation and o er beneficial purposes, irrespective of the carrying capacity

of the ditch.

533.070(1) The quantity of water from either a surface or underground source

which may hereafter be appropriated in this state shall be limited to such

water as shall reasonably be required for the beneficial use to be served.

Case law:

Doherty v. Pratt, 34 Nev. 343, 124 P. 574 (1912) appropriator'ss right

to water limited by rule of reasonable and economical use; rule applied to

method of diversion as well as method of application of water).







ix






4I

Barnes v. Sabron, 10 Nev. 217 (1875) (rights of prior appropriator

limited to reasonable and necessary use).



NEW MEXICO

Constitution: Art. XVI, 1:

All existing rights to the use of any waters in this state for any useful

or beneficial purpose are hereby recognized and confirmed.

2 The unappropriated water of every natural stream, perennial or torrential,

within the state of New Mexico, is hereby declared to belo to the public

and to be subject to appropriation for beneficial use, accordance with the

laws of the state. Priority of appropriation sha the better right.

3 Beneficial use shall be the basis, the meesur and the limit of the right

to the use of water.

Statutes: New Mexico Stats. (1953)

75-1-1 All natural waers flo streams and watercourses, whether such

be perennial, or torrentis in the limits of the state of New Mexico,

belong to the public e subject to appropriation for beneficial use.

75-1-2 Beneficial use shall be the basis, the measure and the limit of the

right to the use of water,...

Case' aw:

State ex rel. Reynolds v. Mears, 86 NM 510, 525 P.2d 870 (1974) (defining

the term "duty" of water as the quantity or amount necessary for effective use;

defining five factors used to determine "duty").

Pecos Valley Artesian Conservancy District v. Peters, 193 P.2d 418 (N.M.

1948) appropriatorr entitled to quantity of water necessary for reasonable use).







x









State ex rel. Erickson v. McLean, 62 N.M. 2614, 308 P.2d 983 (1957)

(requiring that a use be reasonable as well as beneficial stating that waste

is non-beneficial).



NORTH DAKOTA

Constitution: Art. XVII, 210

All flowing streams and natural water courses shall forever remain the

property of the state for mining, irrigating and manufacturing purposes.

Statutes: N.D. Century Code (1977)

61-04-01.1(1) "Beneficial use" means a use of water f a purpose consistent

with the best interests of the people of the st

61-04-01.2 A right to appropriate water can e acquired for beneficial

use only as provided in this chapter. J icial use shall be the basis, the

measure and the limit of the ri se water in this state.

Case law:

Volkman v. City c t y, 120 N.W. 2d 18 (N.D. 1963)(reasonable beneficial

use standard appll use of percolating groundwater).



OKLAHOMA

Constitution: No relevant provision.

Statutes: Okla. Stat. Ann. (1972)

105.2(A) Beneficial use shall be the basis, the measure and the limit of

the right to the use of water; provided, that water taken for domestic use

shall not be subject to the provisions of this act, except as provided in

5. Any person has the right to take water for domestic use from any stream

to which he is riparian or to take stream water for domestic use from wells

on his premises.


xi









Case law:

Lourey v. Hodges, 555 P.2d 1016 (Okl. 1976)(upholding regulations de-

fining beneficial uses as including, but not limited to, municipal, in-

dustrial, Irrigation, recreation, fish and wildlife).



OREGON

Constitution: No relevant provision.

Statutes: Ore. Rev. Stats. (1975)

537.110 All water within the state from all sources of water supply

belongs to the public.

537.120 Subject to existing rights, and except otherwise provided in

O.R.S. chapter 538, all waters within the sta e appropriated in the

Water Rights Act and not otherwise;...

537.170(3) In determining whether opposed use would impair or be

detrimental to the public in he Water Policy Review Board shall have

due regard for:

(a) Conservi'ighest use of the water for all purposes, including

Irrigation, donsi use, municipal water supply, power development, public

recreation, protection of commercial and game fishing and wildlife, fire

protection, mining, industrial purposes, navigation, scenic attraction or

any other beneficial use to which the water may be applied for which it

may have a special value to the public.

Case law:

In re Hood River, 227 P. 1065 (Ore. 1924)(upholding change from riparian

system to appropriation system of water rights).

In re Water Rights of Deschutes River and Tributaries, 286 P. 563 (Ore.



xil
Uv I k- --










1930)(use of water for power purposes held both beneficial and reasonable;

waste of water held unreasonable even If purpose was useful).

Tudor v. Jaca, 164 P.2d 680 (Ore. 1945)(requiring use of water to be

reasonable as well as beneficial).



SOUTH DAKOTA

Constitution: Art. XXI, 7

The irrigation of agricultural lands is hereby declared to be a public

purpose...

Statutes: S.D. Comp. Laws (1967)

46-1-1 It is hereby declared that the people the state have a para-

mount Interest in the use of all the water of state and that the state

shall determine what water of the state Lnface and underground, can be

converted to public use or contr or public protection.

46-1-3 It Is hereby de hat all water within the state is the pro-

perty of the people o ate, but the right to the use of water may be

acquired by appr i on in the manner provided by law.

46-1-4 It is hereby declared that because of conditions prevailing in this

state the general welfare requires that the water resources of the state be

put to beneficial use to the fullest extent of which they are capable, and

that the waste or unreasonable method of use of water be prevented, and that

the conservation of such water is to be exercised with a view to the reason-

able and beneficial use thereof in the interest of the people and for the

public welfare. The right to water or to the use or flow of water in this

state Is and shall be limited to such water as shall be reasonably required

for the beneficial use to be served and such right does not and shall not



xliil









extend to the waste or unreasonable use or unreasonable method of diversion

of water.

46-1-6(6) 'Beneficial use' is any use of water that is reasonable and useful

and beneficial to the appropriator, and at the same time is consistent with

the interests of the public In the best utilization of water supplies.

46-1-8 Beneficial use is the basis, the measure and the limit of the

right to the use of waters described in this title

Case law:

Belle Fourche Irrigation District v. Sm 176 N.W. 2d 239 (S.D. 1970)

(right of landowner to make reasonable ben tal use of water of stream for

domestic and irrigation purposes).



TEXAS

Constitution: No relevant pro on.

Statutes: Vernon's Texas WaS Code (1972)

5.002(3) "Beneficial u means use of the amount of water which is economically

necessary for a pur authorized by this chapter, when reasonable intelligence

and reasonable diligence are used in applying the water to that purpose;

5.023(a) State water may be appropriated, stored or diverted for:

(1) domestic or municipal uses, including water for sustaining human life

and the life of domestic animals;

(2) industrial uses, being processes designed to convert materials of

a lower order of value into forms having greater usability and commercial

value, including the development of power by means other than hydroelectric;

(3) irrigation;

(4) mining and recovery of minerals;



xiv










(5) hydroelectric power;

(6) navigation;

(7) recreation and pleasure;

(8) stock raising;

(9) public parks; and,

(10) game preserves.

5.023(6) State water may also be stored or diverted for any other beneficial

use.



UTAH

Constitution: Art. XVII, 1.

All existing rights to the use ( ny of the waters in this State for

any useful or beneficial purposeereby recognized and confirmed.

Statutes: Utah Code Ann,

73-1-1 All waters in 84C state, whether above or under the ground are here-

by declared to be operty of the public, subject to all existing rights

to the use th -

73-1-3 Beneficial use shall be the basis, the measure and the limit of all

rights to the use of water in this state.

Case law:

Wayman v. Murray City Corporation, 23 Utah 2d 97, 458 P.2d 861 (1969)

(application of the "rule of reasonableness" in the allocation of rights to

the use of underground water).

In re Water Rights of Escalante Valley Drainaqe Area, 10 Utah 2d 77,

348 P.2d 679 (1960)(right to beneficial use Is subject to reasonableness

limitation).



xv










McNaughton v. Eaton, 121 Utah 394, 242 P.2d 570 (1952)(water right limited

to amount necessary, with reasonable efficiency, to satisfy appropriator's

beneficial requirement),



WASHINGTON

Constitution: Art. XXI, 1

The use of the waters of this state for irrigation, mining and manufactur-

ing purposes shall be deemed a public use.

Statutes: Rev. Code of Wash. (1971)

90.03.010 ...Subject to existing rights all waters he state be-

long to the public and any right thereto, or e u thereof, shall be

hereafter acquired only by appropr" beneficial use...

90.54.020 Utilizati d ement of the waters of the state shall be

guided by the fol ene ral declarations of fundamentals:

(1) Uses of water for domestic, stock watering, industrial, commercial,

agricultural, irrigation, hydroelectric power production, mining, fish and

wildlife maintenance and enhancement, recreational, and thermal power produc-

tion purposes, and preservation of environmental and aesthetic values, and

all other uses compatible with the enjoyment of the public waters of the state,

are declared to be beneficial.

(2) Allocation of waters among potential uses and users shall be based

generally on the securing of the maximum net benefits for the people of the

state. Maximum net benefits shall constitute total benefits less costs in-

cluding opportunities lost.

90.54.120(2) "Utilize" or "utilization" shall not only mean use of water for

such long recognized consumptive or non-consumptive beneficial purposes as



xv









domestic, stock watering, Industrial, commercial, agricultural, Irrigation,

hydroelectric power production, thermal power production, mining, recreational,

maintenance of wildlife and fishlife purposes, but includes the retention of

water in lakes and streams for the protection of environmental, scenic, aesthe-

tic, and related purposes upon which economic values have not been placed

historically and are difficult to quantify.

Case law:

State v. Ponten, 463 P.2d 150 (Wash. 1969)(doctrine of reasonable use

applied to percolating waters).

Stempel v. Department of Water Resources, 82 Waso, 2d 109, 58 P.2d 166

(1973)(factors to be considered in issuance of wa t permit .

Brown v. Chase, 125 Wash. 542, 217 P. 23 (riparian owner required

to make beneficial use of water).



WYOMING

Constitution: Art. VIII, 1

The water of all nature reams, springs, lakes or other collections of

still water, within th fdaries of the state are hereby declared to be the

property of the st .

Statutes: Wyoming Stats. (1957)

41-2 A water right is a right to use the water of the state, when such use

has been acquired by the beneficial application of water under the laws of

the state relating thereto, and in conformity with the rules and regulations

dependent thereon. Beneficial use shall be the basis, the measure and the

limit of the right to use water at all times... Water being always the pro-

perty of the state, rights to its use shall attach to the land for irrigation,



XV i i










or to such other purposes or object for which acquired in accordance with the

beneficial use made for which the right receives public recognition under the

law and the administration provided thereby.

Case law:

Budd v. Bishop, 543 P.2d 368 (Wyo. 1975)(water right subject to reduction

If not beneficially used).



Eastern States


IOWA

Constitution: No relevant provision <

Statutes: Iowa Code Ann. (1971)

455A.l "Beneficial use" means the appli at of water to a useful purpose

that inures to the benefit of the water and subject to his dominion and

control but does not include the ws ,r pollution of water;

455A.2 ...It is hereby decla hat the general welfare of the people of

the state of Iowa requires ( the water resources of the state be put to

beneficial use to the f extent of which they are capable, and that the

waste or unreasonab e, or unreasonable methods of use, of water be pre-

vented, and that the conservation of such water be exercised.with a view

to the reasonable and beneficial use thereof in the interests of the people...

Case law: No relevant cases.



KENTUCKY

Constitution: No relevant provision.

Statutes: Ky. Rev. Stats. (1976)

151.110 ...The advancement of the safety, happiness and welfare of the


xviii







r pe.ple and the protect : of property require that th0:Jer inherent in the

people be utilized to promote and to regulate the conservation, devclon:r nt

a.d most beneficial use of the water resources. It is hereby declared that

the general welfare requires that the water resources of the Commonwealth be

put to the beneficial use to the fullest extent of which they are capable,

that the waste or non-beneficial use of water be prevented, and that the con-

servation and beneficial use of water be exercised in the interest of the

people...

151.120(1) Water occurring in any stream, lake, groukater, subterranean

water or other body of water in the Commonwealth w may be applied to any

useful and beneficial purpose is hereby declared be a natural resource

and public water of the Commonwealth and sub t to control or regulation for

the public welfare as provided...

Case law: No relevant cases.




MINNESOTA

Constitution: No relevant sion.

Statutes: Minn. Stat. Ann 1977).

105.37(6) "Beneficial public purpose", in relation to waters of the state,

includes but is not limited to any or all of the following purposes:

(a) Water supply for municipal, industrial, or agricultural purposes;

(b) Recharge of underground water strata;

(c) Retention of water to prevent or reduce downstream flooding, thereby

minimizing erosion and resultant property damage;

(d) Entrapment and retention of nutrients and other materials which im-

pair the quality of natural resources;

xix



lllaurl~r~r~lAIPlma~ lta r~~rarcun *r~lwraa~u~mn

1^ ^ > II^**"*-&drm'4sm:, *Z~.f~P; *. -^








(e) Recreational activities such as swimming, boating, fishing and hunting;

(f) Public navigation other than for recreational purposes;

(g) Wildlife habitat areas for the spawning, rearing, feeding and nesting

of wildlife; or

(h) Areas designated as scientific and natural areas pursuant to 84.033.

105.38 In order to conserve and utilize the water resources of the state in

the best interests of the people of the state, and for the purpose of promoting

the public health, safety and welfare, it is her cleared to be the policy

of the state:

(1) Subject to existing rights all watdf the state which serve a

material beneficial public purpose are public waters subject to the control of

the state. In the determination of whef a beneficial public purpose exists,

specific evidence of the present or Le beneficial purpose shall be evaluated

In accordance with 105.37(6) and l reference to the existing land use of the

area, the soil types surrounding underlying the water, the ownership of the

land surrounding the water, theWlative agricultural and wildlife productivity

of the area, and relevant sions of a county or municipal shorelands ordin-

ance enacted pursuant t 5.485.

105.39 (establishes authority to develop a permit program for use and

appropriation of waters of the state).

Case law: No relevant cases.














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