Title: The Model Water Code, The Wise Administrator and the Goddam Bureaucrat
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00001940/00001
 Material Information
Title: The Model Water Code, The Wise Administrator and the Goddam Bureaucrat
Physical Description: Book
Language: English
Publisher: NRJ 14:207
Spatial Coverage: North America -- United States of America -- Florida
Abstract: The Model Water Code, The Wise Administrator and the Goddam Bureaucrat, by Franks J. Trelease, 1974
General Note: Box 9, Folder 16 ( SF Model Water Code - 1974 and 1987 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001940
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

NR+: 317 1i


SThe Wise Administrator, as every one knows, is the man in a
government office who protects "the public interests" (read my
interests) from actions which would adversely affect those interests,
when the public is (I am) otherwise unable to influence the course of
those actions. The other fellow is as easy to spot; he is the man in
government who makes decisions for me that I would rather, and
could better, make for myself.
In the eyes of many. water is our most precious resource and the
proper solution to the problems of water resources law is to put all
water use in the hands of the Wise Administrator. A distinguished
team of water law professors now advocates just that. A Model Water
Code, with Commentary.' is the work of Frank E. Maloney,
formerly dean and now professor of law a: the University of Florida,
his co-worker Richard C. Ausness.-and J. Scott Morris of Southern
"Methodist University. In most respects it is indeed a model, for in
6. of the Code's 66 pages' the mar-er is handed to our friend in an
excellent fashion, with many provisions to guide his wisdom in the
administration of water resources planning, water management dis-
Stricts, a permit system for water uses. construction and operation of
we s and dams. protection of water quality. and weather modifica-
tion. Its one :law is that in that other page and one half :he very
Shearct of the law is given over to that other fellow. This article will be
,erv critical of that small cart of the Code.'
SThe Model Water Code is not be be confused with the Model
S'Water Use .ct. promulgated by the National Conference of Commis-
'tiessot ui Law, University of Wyoming.
v. Malor.cy, A Model Water Cole, with C-.-nen',ry (197).
2. T&i book first sets out the Code in Fulu. '.hn repf ts it. *oUoio-wi =zch section or
0bteceio. with explanations, for a total of 349 pages. plus preface and index.
3. The Ca4pter on Weathe Modification is uie product of Rope: D. Schwenke. Esq., of
O' Foim .da Bar.
4. The author has come to the conclusion that statements dingreing with those of the
utthorf of the Model Code should not be stated as universal truths in other words, I think I
hall 'e the phrase "I think" r-ith frequency. -dspite :he concvntions of "aw review style. If
QI ee to say, "The Code is wrong u such t respect, e=usc it ipcres economic realiUies,"
*he readeG could be misled into wondering how Malcr.cy, Ausncss and .Morris could have
, iled to Cse sLch an obvious point, wncreas i i my. "' think the Code is wrong because I
hav: te t follow opinion," :he reader is more pioetrly directed to the inquiry of how
rt*se can be so benighted. Minor quibbles not directed at the .nam points of the article
Sar pLSced in footnotes.

-,* LL?.I~ I~j

ifii .-. !ii ~ P. 3



sioners on Uniform. State Laws in 1958. That Act has sat for 15 years:
like a wallflower hoping to be asked for a .waltz, while the Code has
already served as a model to one state, Florida, which in l '.
adopted its essential chapters with minor modifications.' It is noi
offered to other eastern states which contemplate substituting a con-..
prehensive water regulatory program for the law of riparian rig:,,s.
Certainly most riparian law states would do well to replace the co:-.
mon law and the patchy legislation some have superimposed upo- i'.
Maloney, Ausness and Morris outline the problems those states .ace.
As a nation, the United States is in the early stages of a water
crisis. Although the problem is more acute in some areas of th.
country than others, the population explosion. accompanied b:
great technological advances in industry and agriculture, has resulted
in progressively increasinS demands on an essentially limited r:e
source. In addition to the requirements of industry. the season.
needs of agriculture to provide water for crops and livestock a: t.rim
of lowest str-amflow and least natural replenishment are pu;:un.
increased demands on eastern as well as western water supplies.
At the same time, as the demand for water for consumptive uses
has been burgeoning, the interest of ecolopsts and recreational users
in maintaining streamflows and surface and ground water levels has
assumed greater importance in the minds of the public and the state
legislatures. Concern over the adequacy of existing laws in the face
of present and emerging water resources problems is leading many
states to consider new methods of dealing with these problems.
In the East, the common law riparian system of water law has
come under criticism for its restriction on the use of stream water :c
riparian owners and its requirement that the water be used only on
riparian land. Many critics feel that better use frequently may be
made at other places by riparian or nonriparian owners. A maio-
criticism of the system concerns the element of uncertainty asso-
dated with the reasonable use of water for nondomestic purposes.
Because the reasonableness of each use is determined by the needs of
other riparians, unforeseen conditions may arise when others com-
mence or enlarge uses despite long nonuse of their rights. A further:
uncertainty exists in those states where a riparian neither making no:
intending to make use of water can enjoin an existing use as u,-
reasonable with regard to his right.
Another criticism of the system relates to the lack of adminis:a.-
tive controls. In many jurisdictions the extent of a riparian's nggh: o:
reasonable use can be determined only by ligation. The cri:;::
matainta that this uncertainty results in needless loss when water use
patterns of established industries are upset by later competing uses.
Perhaps of greater concern is the water unused or devoted to le.s
5. Water RIouOrce Act of 1972 Fl. Sta:. Ann. f 373.013 et seq. (Supp. 1973).

valuable uses when industries fear(l
in the area. Recognizing their lack
of a case-by-case approach, the cou:
'involved. Also, the numerous court
of uniformity in the application c
SA final disadvantage of the conr
failure to deal adequately with the
recoanmze its hydrolo;ic interrelau
diffused and contained in lakes anc

he Code deals with most of
ion. All waters are placed undt
inistration.. A State Water R
ions concerned with water use.
tion.' The Board has supervise
agement districts as are needed
governing boards of the distri
i,01 well drilling permits and r
ration and regulation,': and r
troL' 3 The state board is char
er use plar.. under directives t
aive, and which admirably p:r
ate interests and economic and
state board also formulates a s
lity standards' and weather ;T
he chapter on water use permit
IF. Malone. R. Aucikne, J. Morris. A M
rats are four a: 69-'5 and 156-157.
. at l 1.03(S), 1.G0. The Declaatio
X tra," a concept hily developed i
16g in others. The police power would pro,
at 1.05.
Sat 1.06(10) 1.15. This adminis
ia number of dir-icts, each fufy staffte
Is and repihaons. al subject to superviu
Ody and dupiick:ive.
Id. .t s S .01.-09. The district is its
a could Iad to some conflicts of interest
~ pernmites or applicants.
SId. ati 5 -.0-3.15.
Id. at g 8 S.06.S.16.
* Id. at 1.0.
I Id. atr 5.04.
Id. a: 5.05.
Id. at z 6.01-6.1S.


. :! .'

MC-136- 1 5 e.-' 755 Z FJW N JJ Rr. I W r



April 1"741

1958. That Act has sat for 15 y
ked for a waltz, while the Code
ne state, Florida, which in fI
.th minor modifications.' It is
ich contemplate substituting a
gram for the law of riparian riM
*s would do well to replace the d
on some have superimposed upo
line the problems those states
es is in the early stages of a water
More acute in some areas of the
nation explosion, accompanied byl
adustry and agriculture. has resulted
-ands on an essentially lir.ited re--
uirements of industry, the season
rater for crops and livestock at tm
: natural replenishment a:r pttn
well as western water sucpiees.
and for water for consumptive uss
.t o ecoioists and recreati:na users
surface and ground water levels has,
:he minds of the public andL -;e sate
adequacy of existing laws ;r :he face
resources problems is leading rarnyl
)f dealing with these probie.ms.
v nparian system of water Iaw has,
fictionn on the use of stream water to.
tent that the water be used only ont
that better use frequenr.y may bej
an or .noiriarian owners. A majcr
is the element of uncem::ir."v sso-
of water for nondotrestic .urposes-.
.ch use is determined by hae reds of
-ditions rmay arise when oceucrs Cosn-;
ang noruse of their riAh:s. A further
a where a riparian neither making nol
r can "enjoin an existing use as un-
em relates to the lack of ad ..listr
.ons the extent of a riparian's eight o
.ned only by litigation. T'.e ariti
:sults in needless loss when ";ate:r
Share upset by later comrpeting us
:he water unused or devo:ed :c lesj
.t. Ann. 5 373.013 e: seq. (Supr. 1973)-,


valuable uses when industries fearful of such losses refuse to locate
in the area. Recognizing their lack of expertise and the inefficiency
of a case-by-case approach, the courts have been reluctant to become
involved. Also, the numerous courts are structurally not as capable
of uniformity in the application of the law as a single, centralized
A final disadvantage of the common law riparian system is the
failure to deal adequately with the problems of ground water and to
recognize its hydrologic interrelationship with surface water, both
diffused and contained in lakes and watercourses.6

The Code deals with most of these problems in an admirable
fashion. All waters are placed under a single rule of law and a single
administration.7 A State Water Resources Board sits above three
divisions concerned with water use, water quality and weather modi-
tication." The Board has supervisory authority over as many water
management districts as are needed to adequately cover the state.'
The governing boards of the districts administer the water use per-
mits,t" well drilling permits and regulations,' dar construction,
operation and regulation,': and most functions of water quality
control.'l The state board is charged with formulation of a state
water use plan, underr directives that seem superior and compre-
hensive, and wh:ch admirably provide for balancing public and
erivare interests ar.d economic and environmental considerations.'
Ta siate board also formulates a state water quality plan,' water
quality standards' and weather modification licensing and regula-
tion. '
The chapter or, water use permits is the principle concern of this
5. Ir Mtncn.y, Auchncss. J. Morrs. A .Model Waer: Code 1972). -vi. ovredetiled .
sw:emnats are found at 59-7 and 56-1S7.
S i'. at 1 1.031.S\ 1.04. The Occlaration of Po~icy ( 1.012) :elics hsai-y on the
"public *ust," a concept highly developed n some statess but having a very restriced
ft-a in in others The police power would provide a c:t frn foundation in he latter.
I. i~ J( 1.05.
i. i t P 1 1.06(10), 1.15. This adrunisrative setup exists in orida, bu in some
states a number of disvicts, each fully staifed, ech empowercd to issue rr.ny types of
Prits ans d re turions. all subjce: o supervision and review by the sate board, may seem
n11vw.y mnd dupli=cuve.
10. id. at 2.01-209. The district is itself a water development and using agncy,
'it co uld to some conflicts of interest when is uses are affected by or affect those
ohf ra pe rioes r applicants.
11. :d, at 4 3.01-3.19.
2 d. da 4.01-.14.
3. id. at 5.06-5.16.
1. d.at 5 1.07.
I""d. at S 5.04.
Id. t 5 5.05.
1 dt 6.01-6.1S.

I Q taW 0 id 1. t I I4b't b615 P. F4

LltL-ldj'Llov -.atb Irma ;r i I

** : : 0' 2b. V R: ':ZTU.,iAiL RZSOURCS JOURNAL [V:.

article. Most of it .is -byond criticism. No person may make any
i :;ithdrawaldiv oi, inmpoundment. or consumptive use of water
Other' than a-dozestic use, without a permit.' The person whro
S.... eks permit nmstistablish that the proposed use is "reasonable
S:"'b-e.ficaal;" a' nwi.ont pt with both quantitative and quallhative
aspects : a use of water insuch quantity as is needed for economic
and efficient utilizatibonifor a purpose and in a manner which is o'rr
S reasonable and codsisteiht with the public interest. He must aiso
S establish that his se will not interfere with existing uses and tha~ i:
: .'is consistent with the. public interest and with the state water plzan.'
. ... :, iThe:last req efreii isan excellent one. putting teeth in the piar
. .'-and giving it meaTi, elevating it from the too common invn.or',
ith. out.' dirct .r fore. Water needed to implement the s:acr
waterr Wlai, mi n g3y h't- a;needed to maintain minimum fiew.s ain
l:"'. ke.levels, ay be'-r d from use.:' Water may be used beonc
S:.h'-. e boundariesoipa an land, the watershed. 6r overlying land '::
SExisting uses .-I rdarily receive permits if the use is rrasor.-
-. ""iab.1-h beneficial aad. I6&f ale under the common law.: If a permit :
So' be.denied becise .ie use is not reasonable-beneficial. the use:
S .will receive compensatiooifor the loss of his water supply.'
,.i..Peimitsa. issuead-'fter application, notice to possible ob.iecro.(
: :,;:..i a hearing2 If:-corpeting applications are filed, preference i.
::.-.. i"ven -to that..use-vhid beIst serves the public interest.2 The hold:
..-:::! of .: a permnilt a seek its.modification during its term, but a r-qu.s:
S,'i"::'faora subsntaljinareas: in water use will be treated as a new ,r-
':::i'-plicition. The. hre evocation or suspension of permits will b;
: ...: .employed as -'~Tooft infordng the conditions of the permit a*i
S'proviss of the Coaler.' Revocation may also follow two years o:
toni:-use: of e. waifeti : less due to extreme hardship caused by
S:; factt beyobnd-te iis'sieontrol.2 9
1 ..1d.at 2 :.. -',::
0 Mat f.'2"):, 2 i .-'
'',::.' 21.: 2d. at 2-020(3).w iabBi w will prevent withdzawals that would be '"hrmful :
t,.':'.:.' 4t.t .. a a -e'*m -o.Rtb t pe of the are." I am not sure what change in w -'W
:, r Ii htai w. sia mce tol is a dynarmc process, when the introduction of a e
u airca wa brm it.' I- mit ibe preferable to couch the prohfoitcd harm in ternr4 u:
.. ;:" effects oa mn ar oa bes by bi jsn.
..,':.~ :'-: ei at 1020).: .
: .~ ,1'23. Ifa.t '' 03* v.
S 24. d. at 03o(4).:
: 25. I at .204.
S 6. Id. aft i205. .
'' "27. 1 st I 20 7. :.
S: '. 2. Id. at -208.. .:
2 .. 9. Id. at 2.08(4).' i an e=a state where irrigation u sed to supplement ru:u-l
i %, Y.sofa. this period seews short, asnce rainfall may be above normal and may not nc d

.. ; ," .: ... _


o.far the Model Water Code
i.system for watcr planning,
6iotect the resource and th
iri public interest in maxii
ie from water use and watt
visions for authorizing and c.
. What remains? Only the qt
ang private users and shifted
nits entitling them to share
,cre is not enough water fo
get the water" W'hen new
ched from old uses to the ne
his is the stuff of the law o
e questions are found today:
ts which can be enforced in
Lout righi takes A's water,
Sr. If B takes the water by
lent domain. A's water rig
Iey. If A and 3 have right
;. courts or administrators d
he greater need and A the
purchase A's right or at lea
sr rights are better defined
.prior appropriation law t.
te types of property rights.
ion, and for them it would
period of water shortage, tl"
t a plan imposing restrictic
I.on total uses, changing cc
Zs.30 In an emergency t
objectt water uses to ap
ambition Shifts of water t
2,rnits for short periods,
expire the water may be g
he permits..
us the Code proposes to s
te water users in lieu of tl
. To what end? Protect
mutation for two years, or roatio
Ad at 5 2.09(1 ) .(E.
td. at 2. 09(7).
Id. at 2C.0, 2.06. see comment

,. A*

IWCW.Qc gjj. IJ._=-60i r.cjU j


i. No person may makie
>r consumptive use of w*
i permit.' The person.
proposed use is "reasori
" quantitative and cqali
.ty as is needed for e-oiY
Ind in a manner which is.i
blic interest.'" He :nus
with existing uses and th
d with the state water pl
mne, putting teeth in the
n the too common inve
eded to implement the,
maintain minimum oo Ai
SWater may be used be
itershed, or overlyi;g Iann
permits if the use is r
common law."1 If a pe
-easonable-beneficial. th
,f his water supply.:
, notice to possible cbjec-
ations are filed. preferen
Public interest.: T'e hb
dunng its term, bu: a re
i will be treated as a ne
r suspension of ermris wi
conditions of the permit:
may also follow two ye
extreme hardshti caused-

wttiMu als :ha woula e
i am lotsuWr whi,: chanzrs ta 2:
*mos, whien the intrnd:.:ort Co
:nuch zhe prohibited h::ns iI=

iaiznvion is used to sup. lezent
my be above norm! ane may na

\ .1t rllE MODEL WATER CODK 1.1
So far the Model Water Code seems impeccable. It provide t 'vary
good system for water planning, administration and control, ipiied
to protect the resource and the environment and to prorkte Bhe
general public interest in maximizing all types of benefits Itit' an
accrue from water use and water conservation. It includes excellent
provisions for authorizing and controlling the initiation of n water
uses. What remains? Only the questions of how water is to be diided
among private users and shifted to new uses. How many users wiliget
permits entitling them to share in the water available for prigafe ~e?
if there is not enough water for all holders of permits, whici users
will get the water? When new needs arise, how can the ateilbe
switched from old uses to the new?
This is the stuff of the law of private water rights. The answer to
these questions are found today in rules of law, rules that _sta'dbsh
ngnrs which can be enforced in court. If A has a water rigit! and B
without right takes A's water. A can enjoin B and thus recede the
water. If B takes the water by virtue of superior powers ssach. as
eminent domain, A's water right becomes the basis for a .iN" to
money. If A and B have rights to a source insufficient tis itiIly
aoth. courts or administrators divide the water according to ai): 3f B
has the greater need and A the water right, in one way or ancthier B
can purchase A's right or at least buy his forbearance to eorceit.
Water rights are better defined. broader in scope and more[ s'leable
under prior appropriation law than under riparian law, but q ,th laws
rcea e types of propcrry rights. Tnese the Model Water Codi! iwouid
abandon. and for them it would substitute administration dlisretion.
in a period of water shortage. the local governing board is toljri iito
t Iect A p!2ian imposing r:'str;ctions on classes of water users.iLestic-
tiont on total uses. chanting conditions of permits, and susmn ing
permins.0 In ain emergency the executive director or thh'iistiic..-
,I I.
may subject water uses to aoportionment. rotta.on. lirnmarjon- lor
prohibition.3 Shifts of water to new uses are to he made bygr'ant-
ir. permits Cor short periods. no longer than twenty yearS'i an 'as
these expire the water may ie granted to rew users instead r'en w-
ing.the permnts." i
Thus tthr Code proposes to substitute administrative conrl oIP er
private water users in lieu ol the property rights which now o'.oVr
ernm. To what end? Protection of the public, the envir pj vt?
u~pltmeaIation fur two years, or ovationn of crops my climina:e the aeed for:
30. (d. a: 2.09(1) (6). I
31 Id. at 2.09(7). .
3 I. at 2.05. .06, see cnnmenuary at 175.
Ir *i *^

2:1 f IV :
',^. .. ::


No-that is a taken #are of. To understand the choice between .
property rign'.: and acd ministrative distribution, it. must be very
clearly ke. ir. mind that all we are talking about is water already
?Ilr,,-wto rr-- ~-...: ,p rhrt the Tr.te and its administrators hav,



In most governrr is'
use it kno new use is tter
uyer could not afford to pa .the
.eUer's uselplusi a profit. If pivat


4o-that is all taken care of. To understand the choice between
property rights and administrative distribution, it. must be very
clearly kept in mind that all we are talking about is water already
allocated to private use, that the state and its administrators have
issued permits for its use, that every use is reasonable-beneficial, that
all the uses can be made in times of water plenty. It must be remerm-
bered that all minimum flow requirements are met. that all other
environmental factors are protected, and that the stare water plan. is
observed and even furthered. The "public interest" stands neutral.
and the only question is, which people get to use the water. The
choice is between giving people, industries and cities water rights rhi t
entitle them to water under stated conditions, rights that they may
use as they see fit and adjust among themselves as they may agree. V:
giving the regulatory official the power to determine in his discretion
which water users get water in times of shortage. and to sihift,wa:e-
between uses and users as time progresses. In my view, the \is:
Administrator has done his work and the Bureaucrat now takes ove.-
The Code is designed for an easterner seeking a new water law for
his state. He should clearly understand this choice. To help him,.
offer an analogy to another resource' with which he is quite familiar.
and which like water must be wisely used, protected, sometimes
preserved from use, and which must be shifted from old uses to new
and more desirable uses as times and needs change. Think land. L.nd
is just as valuable and indispensable a resource as water. Our lives and
our wealth depend upon it. The government, the ultimate source of
title, wishes to see that the resource is put to its highest and best use.
It could do this administratively. A "land bureaucrat" could allow its
temporary use for particular regulated purposes, at will or for a term
of years, but when a new or better use is seen, reallocate it by
moving off the present tenant and stalling a new one. Instead. the[
government allocates the land in discrete and identifiable parcels, as
private property. The land laws make these property rights very firm.
and secure. Land is then available for use by individuals to produce
wealth. Since each person will try to make the best use of it that het
can, the total of individual wealth will approach the production of
maximum national wealth. Yet new and more productive uses by a
different person may come to be seen desirable. Since the land is a
valuable asset, if it were to be transferred to another person without
compensation, the first holder would be impoverished and the later
enriched. Therefore, the laws provide that the property rights are not
only secure but are also voluntarily transferable. The land can be
bought by the new user for the new purpose by paying the owner a

L.n most cases the government is v
ie it knows the new use is better
.oyer could not afford to pay the -
der's use plus a profit. If privat-
Fto have harmful effects on other
waning laws and other regulatory
e harm. If the government come.
ose that outweighs its value for pri
jman it. In this fashion. social pla
.;belts and housing projects are in.
wn before the government has di.
fit and prevent the acquisition of
sllowstone Park.
ow is the situation different if we
te above paragraph" Water is also .
individuals to produce wealth. Its '
.enterprises, can be encouraged
s, though they have to be descrit
re of the resource. Its movement tc
::by the same economic process
wry. Its use can be regulated i
;n,,perhaps easier than are land us!
ie system of water law most ck
.pt of land law is the doctrine of ;
prized form. Prior appropriation
ith what might be called preji
.It has its faults, under it mista
ped in the western states for
ogUy very different from the eas
rMississippi has enacted a slavish
h West Virginia was saved fr
SRepeatedly, the authors of tl
priation "in its pure form," is r
the problems be approached as
easterner wants the best of w;
Start than first considering the
Lining, regulating and protect
Think very hard before he ad
Voting and redistributing the watei
Code Anm. 51-3-1 .seq. (1972).
AIh governor stabbed my inteDectual prn
td on my draf of a wat cdeor Alaska.
d and Water L Rev. 1 (1967).

11 -1- 1 / I 1 1 1 1 I I


[Voi 14

1 April 97]4

Understand the choice betw
e distribution, it must be v
are talking about is water alre
state and its adminiscracors:.
y use is reasonabie-beneficial, .
>f water plenty. It must be renr
uirements are met, that all o!
d, and that the state water pla
"public interest" stands neui
people get to use the water.i
justries and cities water rights
Conditions, rights that they;
g themselves as they may agree
>wer to determine in his discrii
-es of shortage, and to shift ,
progresses. In my view, the N
.nd the Bureaucrat now takes a
erner seeking a new water law
-stand this choice. To help hil
-ce with which he is quite fami.
visely used. protected, scmeti
.st be shifted from old uses to i
ad needs change. Thiink land. E
Sa resource as water. Our lives:
vernment. the ultimate source
:e is put to its highest and best -
"land bureaucrat" could allov
ated purposes, at will or for a ti
-tter use is seen. reallocate it
installing a new one. Instead;
iscrete and identifiable parcel
ake these property rights very i
for use by individ;uals :o rod
to make the best use of it thia
.1 will approach the production
:w and more productive uses,-
seen desirable. Since the lan
!sferred to another person witl
uld be impoverished and the :
de that the property rights al
ily transferable. The land ca.
tw purpose by paying the own

' .


price. In most cases the government is willing to let the change occur
because it knows the new use is better than the old, since otherwise
the buyer could not afford to pay the seller the capitalized value of
tie seller's use plus a profit. If private land uses and transfers are
likely to have harmful effects on others, however, zoning laws, land
use planning laws and other regulatory devices may be used to pre-
vent the harm. If the government comes to need the land for a public
.urpose that outweighs its value for private purposes, it has power to
condemn it. In this fashion, social plans for schools, roads, parks,
g~een belts and housing projects are implemented. If such needs are
known before the government has disposed of the land, it may re-
serve it and prevent the acquisition of private rights: no homesteads
in Yellowstone Park.
How is the situation different if we say "water" instead of "land"
in the above paragraph? Water is also a valuable resource, and is used
by individuals to produce wealth. Its use, and investments in water-
using enterprises, can be encouraged by giving the user property
rights. though they have to be described differently because of the
nature of the resource. Its movement to higher and better uses can be
made by the same economic processes, or by eminent domain if
necessary. Its use can be regulated in the public interest, or for-
bidder, perhaps easier than are land uses.
The system of water law most closely resembling the property
concept of land law is the doctrine of prior appropriation, in its more
modernized form. Prior appropriation is regarded with suspicion,
even with what might be called prejudice, by many in the eastern
states. It has its faults, cnder it mistakes have been made. and it was
dcveioped in the weste-n states for application to a climate and
hydrciogy very different front' the east. the midwest and the south.
Only Mississippi has enacted a slavish copy of western water law,!
although West Virginia was saved from one only by a governor's
veto." Repeatedly. the authors of the Model Code state that prior
apcropriacion "in its pure form." is not for the eastern states. So be
it. Let the problems be approached as original propositions.
If an easterner wants the best of water use laws, he could make no
better start than first considering the provisions of the Model Code
for planning, regulating and protecting water resources. But he
Should think very hard before he adopts the Code's system for dis-
tnbuLing and redistributing the water allocated to the private sector.
3. Miss. Code Ann. 5 51-3-1 e se. C1972).
'-. The governor stabbed my intellectual ~ randchild.. The West Virgnia bill was closely
Modeeidi nn my draft of a water ode for Alaska. See Treltase,-mAlk's iNew Watr Ure Acr.
SLand Wd Ws;cr L Rev. I i1S67).

DEC 06 1999 1:Z2


,ci-~d- lj~jY--UM NH'n ktnl D r- IR/r-IRI

.1 -U 01141=W.L el-SbJ~b-?t6$ V F. 0.2


!V;. 14

The Model Water Code's permit does not create a water ris
Before a permit can be called a right, it must be translatable itto
water with some degree of predictability and enforceability. Predic .
ability could occur, it must be admitted, under ideal conditions a.d
ideal administration. Since pre-Code users are to be licensed pre::v
much as of course,35 and post-Code applicants must demonstrate: .c.
interference with existing uses.3, a strong element of protection of
vested rights is present. This could work very well in areas where
there is a definite and dependable surplus over existing uses. If. :or
instance, a new aquifer is discovered, tapped and explored. its rw.
charge could be found, the effects of drawdown on other users deer-
mined and a safe yield calculated. Then permits for withdrawa.
could be issued, making sure the wells are so located and spaced a :0o
capture the recharge. Each new use could be screened to see that i- is
"reasonable-beneficial" and not wasteful or against the public inr:r-.
est. The governing board could keep a running tab on authorize
withdrawals, and when the total reaches the safe yield, close up s-:o.
The water supply would then be carved up into identifiable shares
and all shares allocated. Owners of such shares would be pro;cited
by administrative withholding of permits from later users seeking t:o
crowd in. Each permit then would be a document that couid be
cashed for water. There would be no "4jior appropriators" wt:;
insecure rights, and all water users would live in the best of words,
enjoying a firm right to a firm supply.
Alas, nature seldom gives us such a dependable supply. Ever.
ground water aquifers may fluctuate and water tables fall whe.
annual rains are subnormal and streams drop. As for streams, for
most a dependable flow is an illusion. Even in the eastern state there:
discharges are widely and often wildly variable. How the Model Code
will be administered on such a stream is the real problem.
One way it could be done would be to find the low point in the
hydrograph, the base flow of the stream always available even in the
worst years, and limit permits to that flow. This has the disadvantage
of throwing away most of the water. The difficulty is compounded
since the State Water Plan must include a decision to maintain 2
minimum flow," for the base flow during drought is very likely :-
be that minimum.
A second measure could modify this idea and alleviate the prCb.
lem. New permittees could be required to build dams to store t:"-
35. Model Water Code at f 2.03(2).
36. Id. at j 2.02(1)(b).
37. Id. at 1.07(4).

le excess and thus provide the
measure could be to issue cor
ser to draw water only when
dnimum flows are satisfied.3
in the view of the authors ('
S"Frequently, persons using
ig seasonal high flows. To pre
is period, the governing boarc
:o allow capture of this water
ie valid only after notice o0
was available." O
-se measures, however, woui.
md simple, and this, the autl
'hat is intended by the Mode.
he system. They come into
ble to meet the requirements
-plan, or when total water u:
s harm." Advance plans are I
luring the shortage by restrict
ts. If the plans break down, a
', safety, or welfare, to the i
Sa public water supply, or tc
agriculturall or other reason.
and the district director can
iortage plan.'
.Code itself tells us little abc
Sor an emergency. The plan
,bf permits according to sot
riay order a temporary redu.
tions on one or more classes <
Bons of an individual's perm
bmething lke "h was once done in T
ly 3ow" and appropriators scre ac:
to of Riperirn and AppropriUat R
il conditional permits ae issued in
1isme a license if the intended absr.
Water Ranources AC 1963, 11-12 liz.
hkh allow the king of water only wh,
kadel Wter Code at 177.
4at $ 2.09(2).
a. at g 2.09(7).
' at S 2.09(1).
. at 2.09(2).
X-ztS 2.09(3).
8at 2.09(6).

5052774165 PAGE.03

- 1 .:A I .1 .'A4 rrz


1I I 1

DEC 06 1999 14:24

,r.--r---- *** EXTRA
insecure rights, an~'all water users would live in the best of worlds,
enjoying a firm ri to a fief uppl y.
Ala< nartur se m irn i i evnih a detrndable sunolv Ev -l

0n 3
and It

86rict dt.-ect"' can

mT ells us OPIrab


oes not create a water I
, it must be translatable
ty and enforceability. Pri
!d, under ideal condition,
,sers are to be licensed p
,plicants must demonstra
-ong element of protect
ork very well in areas V'
plus over existing uses.
tapped and explored, ii
-awdown on other users
hen permits for withdfr
.re so located and soaced"
.Id be screened to see tha
ul or against the public I
a running tab on author
; the safe yield, close up ,
ed up into identit.able s
:h shares would be protd
.ts from later users seeki
e a document that cou]
"junior appropriators"
.Id live in the best of w(

a dependable supply.
and water tables fail
as drop. As for stream
.ven in the eastern states
ariable. Row the Model
the real problem.
to find the low point i
-i always available even i
ow. This has the disadva
'he difficulty is compoL
.de a decision to main
ring drought is very lik

Side and alleviate the
! to build dams to stor

.Ap;ril J197-1 E MODEL WA1 TER CO P
variable excess and thus provide themselvr i tith firm supplies
third measure could be to issue condifiona. permits which all
new use: to draw water only when the require ments of existing
and minimum flows are satisfied." Something like this see
sible, in the view of the authors of the Code, for the Comme
sates. "Frequently, persons using ordinary permits would n
tapping seasonal high flows. To prevent waste through non-
ing this period, the governing board could r~ t special season
sits to allow capture of this water. Such permits would pro
become valid only after notice of the governing board that su
water was available."4
These measures, however, would add up to prior appropri
ure arid simple, and this, the authors, tell usiver and over a
oct what is intended by the Model Water Coie. Shortages are-
into the system. They come into being wl;: insufficient wa
available to meet the requirements of the perit system or the'
.water alan. or when tota! water use threatened water resources
serious harm.'' Advance plans are to be. madeifor cutting back.
,: ss during the shortage by restrictions oatnd adjustments
perr~ts. If the plans break down. and therein a threat to the pu
'eialh. safety, or welfare, to the health of .arnma!s, fish or aq
life. to public water supply, or to recreational, commercial. in
tial, agricultural or other reasonable uses.:an "emergency i
cared In,:d he district director can take directlaction. not limited
the shortage plan.": ,
The Code itself tells us little about how water is to be divided
n;or:tae or 2n emergency. The plan for shorrages will include claI
Scainn of permits according to source, methicd and use.'3 and
Board zavy order a temporary tea-u:;ion in toita water use. iml
resTn:ir.s on one or more classes of permics,~i:make changes in
onditiors of an individual's perrrit."' plac:i-estrictions on his
S. Sa-o:u!. ike this ws once done wi Tei'. where ipar tians had .he prionrry ;
"dir.iary fk," -nd apzlopriators v'w rne-iLy forc:d :rorvidoe torae. See T'l
.c.di**:*.ue .t Riparl n c:nd .Iopropririve Rigts :o the Us of Wa:er. 33 Ter's L.
2". ., a?;-A). ; ,-
39. Su:'. "diional .cmic are .s1ed in Endlafd'and UWes, where the river auto:
t not ;s= a license if the intended abs-aiccin wild deroate :rom 3ny "prot
S* ate." 'va t Reso':ces Act 1963. 11-12 EU. Ii c. 38 5 26(2). 29. In preti license
'ar ih .ilUow the taking of wat:e only when specded irior users ae arisied.
;(udo l '* "- er Code at 177.
I. !d. : ).

46. ij l :09(7).
d s 2. 09(1).
;|{ '6 ,- ..)9 (6). _, :


DEC-N6-1999 09:45


(Vc .

of water," or suspend his permit."' If an emergency is declare:.
orders may be issued requiring action which may include apporrto,.
ing, rotating, limiting or prohibiting water uses.'
No guidelines are set forth for the exercise of this wide discretic-.
The shortage plan must be adopted by regulation after public par;.::..
nation"0 and opportunity for administrative and judicial review.'
The Commentary states that restrictions are to be applied on a c;as,
basis, and that individual users will know in advance their relav';.-
priority during a time of shortage.5 2 Apparently the plan may :
adopted before a particular permit is obtained or afterward. are
apparently it may be changed at any time through the rule-mak:~
Reduction, restriction, changes in permits, suspension of pe.rr-.::s.
apportionment, rotation, limitation, prohibition-these are w-at ::-.e
water user may expect. The Code's solution to the leal uncertain.::es
of riparian rights is the substitution of these administrative uncerra:..
ties. The Commentar- contains this inexplicable sentence: "I shoiu.;
be noted that. unlike the permittee in a prior appropriation system .
the holder of a permit under the Model Water Code is assured of :.:
full amount of water allowed under the terms of his ermit."' I I car.
only construe this cynically. Had I a permit, I would suspect that :.-.
full amount the permit allows me is whatever quantity, if any. scr.
GoddanmBureaucrat doles out to me.
One could hope, of course, that discretion would be wisely ext:-
cised. A number of factors and guidelines come to mind. The Bur-e-
cat might think of rationing by proportionate reduction of wi':-
drawals. This is the way shortages have been judicially hand=lc
among western irrigators under riparian law.s" It is used more wide.y
than is thought in prior appropriation states, for ditch companies a.-
irrigation districts draw their wholesale supplies from the source
according to priority, but when the supply is short they retail i :
47. Id. at 5 2.09(6)
48. Id. at 2.09(6).
49. Id at 2.09(7). It sms probable that there wl be mor eamcnacies than sih -
aes. Ihe existence of a thonae ut be declared by regulation, 2.09(2). A eg-tL:c."
must be initiated by adoption of a esohuion by the ove ring bosd, it must be pubis. -
anc within 10 dys, the publication must give 10 to 20 days notice of a public he~--;i
the regution is adopted it must be filed within 5 days with the secretary or sta~.
becomes effective 15 days threaftet. Approximately a month will else bcrw:.- -
determination to initiate controls and the going into effect of the shotage plan, i .09.
50. Id. a 2.09(11),.1&
51. Id. at 1.11,1.22.
52 Id. at 193.
53. d1.
54. See e4. Half Moon Bay Land Co. v. Cowell, 173 COl. 543,160 ?. 675 (1916): i.:'-:
Land Co.v. Laugenhour, 140 Wash. 558; 250 P. 41 (1926).

rigators share and share alike.s A
basis: and priority of use with:
trial. Proration is not a bad syst.
i who must suffer equally. It is alis
when shortages require impositi
ing restrictions.
t proportionate reduction will no-
h and safety must be considered.
e only so much without serious r
g. Some industries may require a
ards and vineyards may require pr:.
age which killed perennial plants
.harm to investments of time anc
id the loss of an annual crop. If :
y an important criterion, would nr
st valued crops be desirable? M
ch than do most farms. so should
d over agriculture?
think, too, that the Bureaucrat rr
id in creating the shortage-if hb
its the shortage might not have a!
a for good, reasonable-beneficia
gh for them until the Bureaucra-
into their supply for the drought :
.-protection: and if this require
ettees, would it be inequitable, L
.mtil they came along there was
ich were not present when the
the poor Bureaucrat, juggli
iency, public health and safety,
tion of investment, and prot
livelihoods, might at this pc
fr his ulcer or whiskey to forge
at there must be a better wai
a11 those arguing, pleading peopi

Uncertainties that attend wr
.s:.:purposes ignored, the next c
wouldd last and what provision si
d better uses of water as dema
2Se Sandrson v. Salmon River CandL Co., 3



D 6 8:018017Tie136"7689 P.06

DEC-06-19S Z 0C:44


I -L ---L -- I
.TO 81fti4@1713s467609 F. 27


4 If an emergency is decl;
)n which may include appor
water uses."
e exercise of this wide discre
by regulation after public paj
inistrative and judicial revive
tions are to be applied or. an
1 know in advance their re
S2 Apparently the plan mr
: is obtained or afterward
1y time through the rule-mra

permits, suspension of perl
. prohibition-these are wh~i
solutionn to the legal uncertaF
)f these administrative unc
inexplicable sentence: "It s
in a prior appropriation sy4
Adel Water Code is assured d
:he ter:.s of his permit."I" t
permit, I would suspect that
whatever quantity, if any, S

discretion would be wise!y-
lines come to mind. The Bur
:oponionate reduction of $
s have been judicially hli.
an law."* It is used more wi
1 states, for ditch companies
sale supplies from the soi
supply is short they reta.ii.

'e ll be more erergr. r caa
-d by relation, 5 2.09(2). A
he :ov=snin boad, it must be
0 to 20 days nodea of a public
a 5 days with the sewary of
.may a mouth wl etpa4 be
'to cffee of the storage plan, 5

173 CL. S53,160 P. 675 ,:916):

pril 19741


ihe irrigators share and share alike. s All entered the project on the
same basis, and priority of use within the district is regarded as
inimaterial. Proration is not a bad system for dividing water among
equals who must suffer equally. It is also used among householders in
.ities when shortages require imposition of car washing and lawn
watering restrictions.
Yet proportionate reduction will not work in all cases. The public
health and safety must be considered, and cities can reduce their
intake only so much without serious problems of health and safety
arising. Some industries may require a steady flow to operate at all.
Orchards and vineyards may require preference over field crops, for a
shortage which killed perennial plants would cause much more ser-
ious harm to investments of time and money than would one that
caused the loss of an annual crop. If economic efficiency is a goal,
surely an important criterion, would not putting all the water on the
highest valued crops be desirable? Most industries produce more
wealth than do most farms, so should not manufacturing be pre-
ferred over agriculture?
I think, too, that the Bureaucrat might think about the part he
played in creating the shortage-if he had not given the last few
permits the shortage might not have arisen. The earlier permits were
issued for good, reasonable-beneficial uses, and there was water
enough for them until the Bureaucrat, by issuing the new permits,
ctt into their supply for the drought years. Might he not owe them
some protection, and ;f this required an explanation to the later
permittees, would it be inequitable, unreasonable, to remind them
that until they came along there was no shortage. that they created
risks which were not present when the others initiated their uses?
I think the poor Bireaucrar. juggling equality. equity, economic
lffic:ency. public health and safety, protection or' investment, and
protection. of investment, and protection of workers' jobs and
:arrners' livelihoods, might at this point take to the bottle, either
'ilk for his ulcer or whiskey to forget his troubles. 1 think he would
think that there must be a better way to run this railroad, some way
io get all those arguing, pleading people off his back.

If the uncertainties that attend water shortages are solved or for
Present purposes ignored, the next questions are how long a water
riVt should last and what provision should be made to accommodate
new and better uses of water as demands for them arise. "Security of
*S. Se Sande-son v. Salrnon River Caal Co.. 34 dsaho 303, 200 P. 341 (1921).

I"1 11:15

D 0 i0
DEC-86-19599 89:4? FROMI ~T RES C~TR/i RT.4 f;F~


water right" and "flexibility of water use" may sound at firs: bi.-
as if they are opposites, and the authors of the Code and the Cc.
mentary see them as rivals vying with each other for the lawma. favor. If too much is given to one, the other is thought to suffer Ye:
the authors do see three alternative solutions to the problem: '.r :
first is to establish a permit term of short duration; the second is::
grant a long-term permit but also to impose a preference system. anr
the third is to grant a perpetual permit and allow free alienabil::. e
water rights."s They state the arguments for each. then choose tc
first. despite their stated fears that short term permits may deter t
investment of capital and labor in water works and uses.'" .r5rm:
for most uses may be issued for any period "not exceeding twe.-:,
years." and the specific duration may be based on classificatio.- cf
the permitted use according o source of supply or type of use.:
Cities fare better, a city n6ied'g a longer period to retire a wate:.
works bond issue may get up to a fifty year term." Permits m.:, b,
renewed,.0 and while the Commentary states that the renewal a~: i
cant would have a "strong equitable position""' and the Code p-:.
vides that all things being equal the renewal application will be .'r.
ferred over one for a new use." the Commentary goes on to sa. ;i:"
if "...changed conditions have intervened... the governing bca-::
would be completely free to allocate available water in a manner ;ha:
is best suited to these new conditions."'
Security and flexibility are inextricably interwoven, but looking 2:
the thread of security for the moment the question may be .k.e:
whether enough has been given. The authors, in the Commen-:2:.
assume the "normal" period of a permit would be twenty years
Their reason for selecting this, as against a longer or shorter te.-.. i
the "belief that it would be long enough to provide reasonable se:-
uriry to water users and allow sufficient time to at least par;ia!iy
amortize capital investment, while at the same time providing ic:
some degree of flexibility in the administration of the permit sys-
tem."* Tne reason cities may get a fifty year permit is that offic:~.S
of the Department of Housing and Urban Development have s'a:e:
that "... federally supported projects involving public water s.p.-.

$6. Id. a: 173.
57. Id at 173-75.
58 Id. at I 2?06C.).
59. Id. at 2.06C2).
60. Id. st 2.07(3).
61. Id. 2 191.
62 Id. at $ 2.05(2).
63. Id. 2t 19;.
64. M. aI 189.

TO S:181?136467689 P.89


s frequently required local bone
of thirty years. The fact that
ved in Iowa since the 1956 wate.
term [ten years] with respect i
effect on applications for feder
'vate investors are more carele
government. and that they
nation? The water officials and
uggled with the problem of ho\
last, although in a different set
charging aquifer. The New Mexi
asis that this period was need.
ado choice was twenty-five year.
or welis and irrigation eyidpmen
. -predominate, and the no,-rm.aLpr,
,g plant is forty years. Some
If the water user ambles on ob:
eases uncertainty, while if he a
cost may discourage his invest,
o compensation should be paid
e investment in theory is sup;
Sthe permit."" The investor r
the other of these risks.
r g to flexibility, the assurer
... meet new needs and demr
more beneficial new uses."'
Sto what we are talking abc
ce is to transfers from irrigate
and largest consumptive wat%
ries which create the growing ne
n in the east increases to '
'quantities of water to be inc
power plants and factories, th
rally the marginal utility of
Some consumption, commer
g. The east may have another
a: 190.
thes v. Tex.co, Inc., 77 N.M. 239, 42
:Role in the Developmen of the Low o0.
anhdingsand v. Colorado Ground Watet C
at 176.
I. at 173.


[V(: **<


DEC-66-1SS5 B5: 94 FROM AbT RES. CI*PC- L1T-.


vater use" may sound at first
authors of the Code and the
with each other for the lawm
:. the other is thought to suffer
ive solutions to the problem,
of short duration; the second<
to impose a preference syste~j
permitt and allow free aiienabli
argumentss for each, then :ho*o
at short term permits may defi
n water works and uses.5" pi
any period "not exceeding.:
: may be based on classificai
sourcee of supply or type of i
Sa longer period to retire a.
a fifty year term." Permits mi
!ntary states that the renewaA
bie position""L and the Code
he renewal application will be
ae Commentary goes on to say
intervened... the governing b
ace available water in a manner
3ns."6" A ,
tricably interwoven, buc look
oment the question may be a
The authors, in the Commenl
a permit would be rw'ntry Y
against a longer or shorter ten
enough to provide reasonable
fficient time to a: 'eas; part
'e at the same time providing
adninistracicr; of the permit:
:a fifty year permit is that ofif
d Urban Development have st:
ects involving public water sij

16il 19741


st:ems frequently required local bond issues with maturity dates in
approved in Iowa since the 1956 water statute suggested that a short
,rnit term (ten years] with respect to municipalities might have an
verse effect on applications for federal assistance."" Is it assumed
.It private investors are more careless with their money than the
j.eral government, and that they will be satisfied with partial
snortization? The water officials and courts of two western states
live struggled with the problem of how long a temporary water right
4ould last, although in a different setting, fixing the useful life of a
ccn-recharging aquifer. The New Mexico solution was forty years, on
te basis that this period was needed to pay out a farm."' The
Colorado choice was twenty-five years, the payoff period of a bank
oan for wells and irrigation equipment." In the east, industrial uses
nay predominate, and the normal period for depreciation of a manu-
Accuring plant is forty years. Some have useful lives of sixty or
more. If the water user gambles on obtaining a renewal of his permit,
.A increases uncertainty, while if he accelerates his depreciation, the
.aded cost may discourage his investment. The authors conclude that
... no compensation should be paid upon expiration of the permit
siac the investment in theory is supposed to be amortized over the
tfe of the permit."" The investor must simply take or surmount
oe or the other of these risks.
Turning to flexibility. the assurance that "...water resources
'Cani .. meet new needs and demands by transfer from existing.
uses to more beneficial new uses."' it may be helpful to look
dieTtcly to what we are talking about. In the western states the
reference is to transfers from irrigated aznculrure. which has the
earlies and largest consumpthie water rig.t. to municipalities and
aidus-t.es which create the rowing new demands. To the ',tent that
rrigat7on in the east increases to the point: of consuming iarge
enough quantities of water to be incompatible with the rowrh of
adies. power plants and factories, the same shifts will there occur,
sace generally the marginal utility of water for irrigation is less than
'hat for home consumption, commercial estabishmen:s. and manu-
Sctturing. The east may have another problem. in many areas entire
65. Id. a: 190.
66. Mathtrs v. Texaco. Inc.. 77 N.M. 239, 421 ?.2d 771 (1966: ee alro Hanis, cw
*4i*o 's Ro!e in the Development of the Law of Undergrourn da'r:. 31. Dict 41 (U. of
l era 19S4).
67. Fundingshnd v. Colordo Ground Wate Czrnmission. 17! Cocl. 437. 468 P.2d 835
S3. 1J. at 176.
69. Id. at 17 3.

JO Q6181217113646iPN9 P. 10

F t .P..to1


rivers are used for low-head, run-of-the-river electric power ptunts.
and upstream consumptive uses or interbasin diversions will dirrniis),
the use for energy production. Another type of change may become
increasingly important all over the nation, the restoration of re:rs.
national opportunities and environmental values, which will shift: tih
water from the private back to the public sector.
Under the Model Code, the mechanism to accomplish these =l:f:s
is the issuance of new permits to newly-favored users upcr the cx.
pirarion of old and now-to-be-discarded uses.' 0 1 see several i:'ficui.
ties with this process. First, to the extent that the "normal" per:t:
lasts twenty years. flexibility is surrendered during its life. :f -;.,
application for the new use does not coincide with permit exp;r.-
tions, the new user may have to wait a fairly long time before w.ter
becomes available. Second. the investment may have been on:m
..partly amortized during the 20-year (or shorter) period. Th:rd. r.-
'holder will in most cases lose an asset more valuable than his i::~es:-
ment, that is, the going concern value of his enterprise. the conti:-
uing opportunity to make a profit, which is presumably a co.r.:r:.-..
tion to the economy. Fourth. if i: were my enterprise. i w.oui
suspect that some Bureaucrat might solve the first problem an:
aggravate the second and third by simply granting the permit; an:
squeezing the water out of me and other less favored users under tn,
shortage plans and emergency measures.

We met our friend, the Bureauc-at charged with administra:ior. of
the Model Water Code, wondering how many permits to issue. anc
we left him musing over a bottle after he found he had issued :oc
many. His western counterpart, often called the State Engineer. i,
happier man. True, the law he administers gives him the power Ic
deny a permit if there is no unappropriated water in the source. bui
he exercises this power selectively and sparingly. If he has before hm
the aquifer with a safe yield, or one with no appreciable recharge. ht
will determine the total allowable withdrawal and deny permits :'r.a
would exceed it. This is done in his capacity as a Wise Administr:::7.
to protect the holders of shares in the resource from encroacn.rtr:
and to protect those shares from dilution and encroachment.
On a fluctuating stream, however, unless every drop is a::r:Z'
allocated, he does not have to agonize over whether there is room. '= ;
one more water user. He cheerfully announces his willingness to issue'
the permit for whatever water is left. His office will be very he;f.,
70. Id. t 175.


re, and his records of the sup-
will aid the applicant in dete
e permit. But the western Wis-
itermined that there is not enot
'licant to determine the availab;
k, and whether he should seek:
used seasonal high flows, for:.
if higher on the priority list by i
'ior appropriation is criticized fc.
ical uncertainties" on the junior .:
tainties are certaincic, and th;
es as to the worthwhileness of t.
physical adjustments as are econ.
mior right and gets no water where
ler, not the Bureaucrat.
~.easterner need not think that th
,would cause great disruption ir
e,.to the east as is commonly sur
ed in terms of allowing every r
able use of the water. Reasonab.
the circumstances, and in the la:
., on the basis cf whether the
y.-of the ha-m.": One would exr
sliave said that a new use of g
ib it takes water from an exist:
od "riparian flexibility" is som
n e authors of the Code see it
's right of reasonable use car.
..But before a riparian state tra
ninis -tive discretion. its lawma.
sed by the cases. There is muc
statement of the rule wouk
le use rule is applied to den!
only nominal or trivial harm
ne or the other parry to make .
an be accommodated. Riparian i
understood :o be entitled only ;
IBut almost without exception, t
plaintiff who has been impounc
ible use, and have enjoined c
. at 158.
t*totemena or Torts, i 852.
kedtl Wate: Code ac 78.



P. 12

*09: 5i



.n-of-the-river electric power p
or interbasin diversions will din
anotherr type of change .nay be
;he nation, the restoration of6
mental values, which will shil
-e public sector.
.echanism to accomplish these
:o newly-favored users upon t
;carded uses.'o I see several d4
he extent that the "no.ma!" '
Surrendered during its life.
-s not coincide with permitnr
wait a fairly long time bfore*
investment may have beerg
/ear (or shorter) period. Thi'
asset more valuable char. his
value of his enterprise, che.,
it, which is presumably a con,
f it were my enterprise. I s
iight solve the first problem
-y simply granting the permit
1 other less favored users uncd
:rat charged with adcinistrats~
g how many permits to isaue
after he found he had .ssuec
te.n -alled the State Ensineei
.minisras gives him rhe pow
"ropriare water in .i.e so.irce
ind sparingly. f he has beforT.
e with ,o appreciable rechari
withdrawal and deny permTit
Capacity as a Wise Adminisj
the resource from encroadc
'ution and encroachment .
ver, unless every drop is
ize over whether there is rod
announces his willingness
't. His office will be very h

A pt974-


of course, and his records of the supply and the existing demands
upon it will aid the applicant in determining whether he wants to
take the permit. But the western Wise Administrator never says. "I
have determined that there is not enough water for you." It is up to
the applicant to determine the availability of water and the risks of
shortage, and whether he should seek stream flow, build a dam to
store unused seasonal high flows, forget the whole thing, or inseri
himself higher on the priority list by buying out a senior appropria-
ror. Pror appropriation is criticized for putting the entire burden of
-.physical uncertainties" on the junior appropriator,"' but even these
uncertainties are certainties, and the appropriator can gauge his
chances as to the worthwhileness of the venture or make such legal
and physical adjustments as are economically justified. If he takes
the junior right and gets no water when drought comes. he curses the
weather, not the Bureaucrat.
The asterner need not think that the transfer of this system to his
state would cause great disruption in the law. Priority is not as
straale to the east as is commonly supposed. Riparian law is usually
phrased in terms of allowing every riparian proprietor to make a
reasonable use of the water. Reasonableness is determined in view of
all of the circumstances. and in the language of the Restatement of
rgle Law, on the basis of whether the utility of the use outweighs the
gravity of the harm.": One would expect to find cases in which the
*ours. have said that a new use of great utility is reasonable even
though it takes water from an existing use of lesser utility. This
supposed "riparian flexibility" is sometimes praised, sometimes de-
-led. The authors of the Code see it as creating uncertainty since a
*panan's right of reasonable use can be determined only by litiga-
ion.:" Bur L-rere a riparian stace trades this uncertainty for those
of adm:rusrrative 'discretion. its lawmakers should look at the record
Iscablished by :he cases. There is much more priority in riparian law
than the statement of the rule would indicate. In many cases the
reasonable use rule is applied to deny relief to a plaintiff who has
suffered only nominal or trivial harm. In many others it is used to
'ore one or the other party to make some adjustments so that both
uses can be accommodated. Riparian irrigators, interse, have always
been understood to be entitled only to a share of the supply, long or
hort. But almost without exception, the courts have favored a ripar-
n plaintiff who has been impounding or diverting water for a
reasonable use, and have enjoined or assessed damages against a
:1. ad. at SS.
72. Rcsacerent of Tns, 852.
73. M-4el Water Code at 78.

------ ~ ~ ~ ~ 741 -MU~ *C;7- .L111----r S~~it6 Ht~

TO 8tp31911713646?689


uc.^-^o-i-sys' w



defendant whose new upstream use has taken the water from t.r.
plaintiff. Most of the courts base this result on the rule of reasonable.
ness, but they always seem to find the new use is unreasonahil
because it takes the water supply of, or otherwise causes subsran;m~
harm to. an existing reasonable use.7' Thetentative draft o4 th,
Restatement Second attempts to reflect this practice. It does :0,.
come out flatly with a rule of priority but it does state that arong
the factors to be considered in determining reasonableness are "th.
protection of existing values of land, investments and enterprises
and the burden of requiring the user causing the harm to bear -:'t
loss."' In this light. turning the matter over to the Bureaaucra:
shortage plans and emergency orders may be a serious cnang~ .-.
eastern water law and may deprive water users with vested rigia"t o a
protection they have in fact long enjoyei.-,
The easterner could improve on western law in several respe.'s !:
the thought of prionty distribution in times of shortage raises f ar
that the most economical or undesirable uses may be foreclosed, i: i
still possible to avoid calling in the Bureaucrat and to let the pa- it
solve the problem. One defect in most western appropriation laws 's
the failure to provide for sales of water, as distinguished from sales o:
water rights. Yet some secondary western water rights. shares .
stock in a reservoir or ditch company, are used in this fashion. Fc:
example. some water users in Wyoming grow hay for cattle. .o.e
grow sug- beets. Late in the season, a rancher may hold stock :":::
entitles him to so many acre feet of reservoir water while z bee
farmer's scream has run dry. Hay produces S25 to $40 an acre. ss:"
beets S60 to 575. What happens is that the farmer "rents" :h.
rancher's water right at a price somewhere between the profit he wi'~
realize on the beets and the profit the rancher will lose on the hn .
In New Mexico, a statute enacted in 1967 permits "leasing of the .se
of water" by an appropriator to any other person, with the approve.
of the State Engineer." Under this act, growers of beans who ant,,.-
pate a high price buy water from potato growers who face a glu;rtt
market. Maximum efficiency is reached, since the high-value c:rop'
produced, and both water users share the profits. The Code's Burew'-
crat could not do as well. If he were charged with distributing W:,-.
min2 water on the basis of economic efficiency he would allocate
water to the beet grower, but the lucky farmer would get a l '
74. The case a calec in ResUternent Torts (Second), (Tern. DrIt No. 17. f S"-:
Assocate Rpo er's Note, at 115-117 1971).
75. Id. ai 5 S503(h)and ().
16. Trecase & L, Priority and Progrss--Case Studies in The Transfe- of Water ,:-'.:
1 Land & ua:t L Rsv. 1, 49 (19661.
77. ~ A.M :. a nn. An 75-40-1 to 75-40-7 (Supp. 1973).

ihile the unfortunate rancher wo.
6d to avoid this by a criterion
Beach, the highest and best us,
6m production would not be reaci-
aer example of how temporary z
iould be of great utility is chat of
eight and is faced with an unusual'
,.I would assume that the Bureat
-better use and would cut off ti
get the water but the farmers we
ost which must be reckoned. anc
i have the city pay for the farr
could improve on the system '
:to make purchases. and by limri:
p the shortage in the pernutted :
water by unauthorized persons o
would be given the power of emine.
mporary control of water rights at
ime cases the rule of priority m.
lution. In an unusual drought i:
betweenn persons who are essenti:
served that on western project
. priority, and if its supply di;
proportionately. If under good p;
Offer good possibilities for irrigate
Should be treated equally in ca
kovide for assigning the same pr
ough they may use individual
plan could replace the proje
|ty. This system would approx:
among irigators, but could a
,by too many riparians seeking
Between the irrigators as
nicipalities and other groups.
western water right is said to
explicitly so states. A better de
indefinite duration." in view <
feiture for non-use and the p
ality of perpetuity is seen as a
,ona v. California, 283 U.S. 423, 459 (193


d67609 P. 13


DEC-5-81995 2c.: FFO'l NAT RES CTR/C[RT



-ream use has taken the wacer fro
base this result on the rule of .-eas
n. to find the new use is -urrea.
supply of, or otherwise causes subs
nable use."4 The tentative draft.1
pts to reflect this practice. it d
of priority but it does state chat1'
i in determining reasonableness ari
:s of land, investments and enter
; the user causing the harm to be
ng the matter over to the Burea
:cy orders may be a serious :
esrive water users with vested ri
ong enjoyed.
,ve on western law in several resp-
:bution in times of shortage raise
undesirable uses may be foreclcs
in the Bureaucrat and to ie: :he.
at in most western appropri ticn
i of water, as distinguished from s
:ndary western water rights, sha
company, are used in this fashioiz
n Wyoiing grow hay for :a:tle
season, a rancher may hold sto4
Se feet of reservoir water wh-ie a
Hay produces S25 to S40 an acre;
opens is that the fare: "--e.it
a somewhere between the orcfit
:ofit the rancher will lose on :he b
::ed in 1967 permits "'easi-. of ti
to any o:her person. with t e ap1
:r this act, growers of beans w*ho a
oom potato growers who face a gl
s reached, since the n-i~-value c
's share the profits. The Code's 8t
.e were charged with distnbriutrin
nomic efficiency he would a!ocal
it the lucky farmnner would get 4
mcna Ton (Second); (Tent. DrIft No. 173

yCu-Ctse Sudies in The Tunsfer of 9's
-0-7O rSupp. 1973).

ofits while the unfortunate rancher would suffer a severe loss. If he
ttemptcd to avoid this by a criterion of equity, and gave half the
1ater to each, the highest and best use would not be served and
m~ rnmum production would not be reached.
Another example of how temporary transfers of rights or sales of
wvter would be of great utility is that of the city which gambled on a
junior right and is faced with an unusual drought. If farmers hold the
poritc. I would assume that the Bureaucrat would say that the city
hs the better use and would cut off the farmers' supply. The city
wouid get the water but the farmers would be bankrupted. This is a
social cost which must be reckoned, and the best way to account for
it is to have the city pay for the farmers' lost crops. An eastern
statute could improve on the system by allowing only owners of
permits to make purchases, and by limiting quantities to enough to
make up the shortage in the permitted supply. This would avoid the
use of water by unauthorized persons or in unauthorized quantities.
Cities could be given the power of eminent domain to enable them to
take temporary control of water rights at a fair compensation.
In some cases the rule of priority may not be thought to be the
ideal solution. In an unusual drought it can discriminate rather arbi-
rarily between persons who are essentially similarly situated. It has
been observed that on western projects all irrigators share in the
projects priority, and if its supply diminishes their shares are re-
duced proportionately. If under good planning an agricultural area is
seen to offer good possibilities for irrigation, and it is thought that all
imipaors should be treated equally in case of shortage, an eastern law
might provide for assigning the same priority to all the landowners,
even though they may use individual works initiated at different
times. The plan could replace the project and the plan could receive
the pr.crity. This system would approximate' the nparian solution to
miortages among irrigators, but could avoid the' possibilities of over
Zowdinrg y too many riparans seeking a share. and would settle the
'sationship between the irrigators as a group and industrial water
users municipalities and other groups.

The western water right is said to last forever,'" although no
statute explicitly so states. A better description would be that they
are "of indefinite duration." in view of the rules of abandonment
and forfeiture for non-use and -the possibilities of condemnation.
This quality of perpetuity is seen as an evil by the authors of the
72. Aero.a v. Ctlifons, 2S3 U.S. 423.459 (1931).

TO a12191817136467EB9 P. 14

April 197-

09:!5t$ 'FROM NA, RES CTRM*T,A -



Code, and is rejected for the twenty-year permit which allows *-,:
least partial" amortization of capital investment. My view is ti.:a
invested capital is not the only consideration, and that the got-.,
concern, income-producing values of water use are often far rr.o:*
important. The water right out to last at least as long as the e.-.":.
prise. There may be no need to leave the owner of a mine-mou:-
processing plant with a water right after the mine is exhausted. ?,j:
when we look far into the future and the crystal ball grows dir-.
perpetual right is as good as any. Why not give a city a perpe~t a
right? Is there any substantial reason to believe that in a ha!:
century a better use will be found for the water so it should "e :tak:
from the inhabitants? If a rural town dwindles, so will its wa :- ..e.
and so will its water right under the Code's rule of forfeiture :'0- tv:
years .'ion-use. '
As fo- the farmer, why should his water right not run to hir ::m
his heL-s forever. like the title to his land? If irrigation bcco~.-
unprofitable, if he turns his farm to other purposes that need ::.
water. the water will revert to the public and be available for :7t
What about flexibility, accommodating new uses, avoiding freezer.:
water into old patterns of use, encouraging progress? It nmus: b
learned that flexibility and security are not antipodes, they ar, r.::
incompatible. In most of the western states water rights are hei :: .
the firmest fee simple, in perpetuity, but the rights are transi';r:.-2:
and can move to other uses and to new users. The transfer c,:-:r
when the price is right. The parties to the transaction decide the ,.-
and asked prices and the agreed sale price. Within the private sect:.
the principal public interest is in seeing that the water is put to i:.
most efficient use and makes the greatest contribution to :..
economy. No Bureaucrat need worry about this, it has the bes; c:
guarantees. The buyer must be able to put it to better use if he car,
offer the seller enough to induce him to forego the benefits he :r-
ceiyes from the water. Since most water sources are subject tc =
number of rights, and alternative sources of supply are usually 2'.'.
able, monopoly does not present a problem. Nevertheless, ci;~ti a'
usually given the power to condemn water rights in order to ir~-"
transfers at a fair price.
The Administrator plays his proper part in transfers, however. Ti'
rights of other appropriators must not be impaired. and every s:'2
has procedures for supervision of the change to a new owner f: :
new use and for notice to persons who may be affected. The ro.:
79. Model Wate Code at 2.08(4).

)n restriction is that a change of i;
the extent of water consumed.
appropriators often depend upc
'e The new use will also be exarr
public interest."' The easterner si
ures date long into the past, an.
s has brought to light some

authors of the Code do not re:.
hey use selected parts of it:
ie Mode! Water Code employs a nur.
atures in chapterr The code provide
edific auan:ities of water. As in the '
ministered by a water regulatory age
aeficial use rule is strongeiy western orin
blic interest: and prohibition of waste
w restrictions to use on nparian land ha'
Ind that protection of the resour
trust and the adoption of state
are not incompatible with these
ir, is the heart of the system, ti
ag and realiocating water to and a
reasons they state for their reject
,simply not in point or not true
-iors recite three charges against ;
kBut the western experience indicau
ect of prior appropriation may be to
Sbe put to beneficial use. To satisfy

times the amount of the appropri
channel losses." (2) Moreover, onet
g a certain amount of water he will I
a amount even though it may be consi
is, since failure to do so may result
to the excess."s (3) A final criticism
Tw1ease & Let, supeo n. 76, at 23 to 29.
Sutes v. Caldwe, 64 Utah 490, 231 P.
'r coming report of tSe 1National were
nd should be consulted.
odd Watec Code at 159.
at vi, expanded at 77, repeated at 158.
..at vivii expanded at 77, repeated at 159.

DEC 06 1955 11:31 5~iZ7741bt PARUE.1


F~I NAT RS C~1 ~ i T aL81IBI7I3&4&~7~a5 P 1S

A4 .A jdtO


:wenty-year permit which allow,
capital investment. My view isW
:y consideration, and that the
:es of water use are often far.j
: to last at least as long as the.
:o leave the owner of a mine-"s
:ght after the mine is exhausted,
are and the crystal ball grows d
ny. Why not give a city a peqr
reason to believe that in a t
id for the water so it should be~j
town dwindles, so will its water
the Code's rule of forfeiture to'

:d his water right not run to hiU
Sto his land? If irrigation bec
.rm to other purposes that net
the public and be available fi

modating new uses, avoiding fre
encouraging progress? It mu
.rity are not antipodes, they ax
-stern states water rights are he
-uiry, but the rights are transfer:
i to new users. The transfer c
:ies to the transaction decide tl
sale price. Within the private s
n seeing that the water is put
the greatest contribution 0t
.vorry about. this. it has ihe b
.ble to put it to better use if
:e him to forego the benefits
'ost water sources are subject
sources of supply are 'suaily
a problem. Nevertheless. citi
emn water rights in order to

-oper part-in transfers, however
st not be impaired, and every
i the change to a new owner
ns who may be affected. The

A P 7 19741


otrnnon restriction is that a change of irrigation water may be made
o.ly to the extent of water consumed, not of total diversions, since
jnior appropriators often depend upon return flows from senior
elds.*' The new use will also be examined to see chat it conforms
to the public interest."' The easterner should note that most western
procedures date long into the past, and that the number of recent
changes has brought to light some features that could be im-
The authors of the Code do not regard prior appropriation as all
bad. They use selected parts of it:
The Model Water Code employs a number of prior appropriation
features in chapter 2. The code provides that permits be granted for
specific quantities of water. As in the West, the permit system is
administered by a water regulatory agency. Also, the reasonable-
beneficial use rule is strongly western oriented in its emphasis on the
public interest and prohibition of waste. In addition, the common
law restrictions to use on riparian land have been abandoned."3
They find that protection of the resource, the environment and the
public trust and the adoption of sta:e water plans and minimum
lows are not incompatible with these features. What they reject,
however, is the heart of the system. the method of allocating, dis-
tributmng and reallocating water to and among private users.
The reasons they state for their rejection seem curious and uncon-
vincing, simply not in point or not true. Over and over. like a litany,
te authors recite three charges against prior appropriation:
( ?I But the western experience indicates that, in many cases. the
ffect of prior appropriation may be to waste water that otherwise
c'id be put to beneficial use. To satisfy senior approato r at the
n tut oi' .he stream. juror upstream approprnators ry have ;o let
several times the amount of the appropriation pass by them to allow
'.r channel losses."' (2) Moreove:. ones an appropriator has begun
'J.ug certain amount of water he will frequently continue to draw
thac amount even though it may be considembly more than he really
needs, since failure to do so may result in loss of his ippropriative
n to the excess.s (3) A finai criticism of the prior appropriation
tU. Sre Trleae & L. supre a. 76, .t 23 to 29.
st. United Scats v. CQadwel. 64 UtLh 490, 231 P. 434 (1924).
,. Zh* forhcoming report of ie .atiorns Witer Commission wl have much to ay on
sthubjetand should be consulted.
3. .Model Water Cod at 159.
84. Id. at vi. expand st 77, repeated at 158. -
SS I. vi-vi4 expanded at 7?, repca:ed :, 159.


-i- uV .j~yi~it'lr






DEC 0S i995 11:34



system is its tendency to freeze the initial pattern of water aloca.
tion. In a number of western states, the appropriation of en:ir-.
stream supplies for irrigation has prevented industrial development:
that could produce far more wealth for the state per unit of wat.:
than does the highly consumptive use of water for irrigation 3

Easterners, do not believe what this book tells you about the evi!s
of prior appropriation law. There are some. but they are not .:,...
Take the fearsome freezes you are warned against. Look for ya.
selves at the population and industry crowded from Glendale t.- rr
Diego, where rainfall is in the 10 to 20 inch range. Look a: th;e -,,
twenry-five year's phenomenal growth of Phoenix, Tucson. Ai,.
querque and Las Vegas in the southwest desert. Look at the e:.--.
. son of Salt Lake City, Denver and their environs, where a;: -:i
surface water was appropriated for agriculture three quarters c;
century ago.
As for waste by useless use of water to keep rights in force. I kno
of no examples of this. Most of my farmer and rancher friends ic
not have enough water to suit them and they husband it carefu!i : i
they have a surplus they are too busy doing useful work and earnin.
a living to burn up water they do'not need. Furthermore, if the iv -
commissioner caught them doing it they would lose the nsh: -.z
excess anyway, for their right extends to that only which tney a
beneficially use. If this evil exists unknown to me, the Model W'.-
Code does not cure it. The authors put the holder of a Code --._:
under exactly the same compulsion. Section 2.08(4) states.
For nonuse of the water supply allowed by the permit for a pen:co
of two years or more, the governing board may revoke the .:m:it
permanently and in whole unless the user can prove that his nonure
was due to extreme hardship caused by factors beyond his conrtol.

The Commentary warns,
Under this section, revocation may be total or partial, and tempo-
rary or permanent In addition to its use as a sanction, revocation
may also be employed to formalize a complete or partial abar.crn-
mrent of penrli rights.37

The "waste" caused by the downstream senior on the dwic.d::.
stream should concern the easterner not at all. His streams gain '.Zt'
throughout their length, they do not lose it to desert soils. Tha : '-"
.6. Id. at vii expanded at 77, repeated at 159.
87. Id. at 192.

IUIH. r.-I
PAGE. 17

exists, even in the west, is doubtfu.
misquoted from an early article of
i the Frenchman's Creek area of Color
scary to reduce upstream pumping o)
t year to protect downstream uses
saver Creek a decrease of pumping u;
would be necessary to protect a down.
was no "upstream pumping" v'
m was the pumping of ground
nd dropped the bottom out of t
m was caused by applying one r.
nt one to goundwater, a probol
ster under the single rule of .
s want a good example, however
in Nebraska. "a mile wide and at
b its bed that at least 700 cu.
:to pass North Platte so that
..the senior appropriators at
o9 A waste of 538 c.f.s.? The ri.
s more can be produced there. 2
ave never seen fit to buy out th-
ition is that the 538 c.f.s. feed
la of corn and alfalfa that street.
and s of wells. Ar any rate, :
tion law but of historical accit
re some other problems the
Seat, except in taking warnir
ers from homemade construe
pioneers: inefficient and dupli;
d wasteful wild flood irrigation
of records, so that there an
77. The authors of the cde cite Trei
pent, 22 Law and Contemp. NPob. 3i
be noted that my article does not re
title was substitute for the orign r
Rev. Sat. Ann. i 145-21-2 et seq. 0
ex rL Cary v. Cochran, 133 Neb. 163.
kwas mttred from east to west i
the ealy priorities re in the downst
of the Rodies were scied f' t so tl
W e seded later s theS junior 1p
otf the Smoky Hi"l.

(1.*4676S9 P. 17

eis the initial pattern of water aLoca
rn. states, the approcriauon of entire
has prevented industrial development
wealth for the state per uniLt of wate
'tive use of water for irriga'.on. 6 .:

hat this book telis you about thO
:ere are some, but they are not'"
u are warned against. Look for
industry. crowded from Giendale i
10 to 20 inch range. Look at t
41j growth of Phoenix. ,TucsonI ,
southwest desert. Look at the.'
e~r and their environs, where-
:d for agriculture three quarter

)fjwater to keep rghts in force, I1
. of my farmer and rancher friend
Sthem and they husband it care
oo busy doing useful work and e
do not need. Furthermore, :f the'
iig it they would lose the right.
: extends to that only which the
iSts unknown to me, the Model.
.thors put the holder of a Code :
.ision. Section 2.08(4) states,

xy allowed by the permit for a pezio
overring boa.a may revoke z ;e Oernm
'less the user can prove that his n.cnus
Caused by factors beyond h1s control

a rmry be tot:a or partial. s.-. :empo
' tO i ts,' u as a 3ancuel. revocatiol
.naiize a ccrnmlete or oart:iai banrdon

i downstream senior on the dwi
erner not at all. His streams gain
do not lose it to desert soils. Tha


April 19"4


vste exists, even in the west, is doubtful. Some examples are errone-
ously misquoted from an early article of mine:
Ii the Frenchman's Creek area of Colorado, for e nmple, it is nec-
,ssary "o reduce upstream pumping by 100.000 acre-feet of water
per year to protect downstream uses of 15,000 acre-feet, and at
Beaver Creek a decrease of pumping upstream by 20,000 acre-feet
wouid bv necessary to protect a downstream flow of 1,000 acre-
STere was no "upstream pumping" on these creeks, the physical
nroblein was the pumping of groundwater that lowered the water
taec and dropped the bottom out of the overlying stream. The legal
problem was caused by applying one rule of law to the stream and a
different one to groundwater, a problem since solved by placing all
the water under the single rule of prior appropriation."9 If the
aucthrs want a good example, however, 1 can supply one, the Platte
Raver in Nebraska. "a mile wide and an inch deep." It loses so much
through its bed that at least 700 cubic feet per second must be
allowed :o pass North Platte so that 162 c.f.s. will be available to
supply the senior appropriators at Kearney, 100 miles down-
i:ream'."' A waste of 538 c.f.s.? The richer lands are at Kearney, and
perhaps m.iore can be produced there, at least the North Platte irriga-
tors .ave -ever seen fit to buy out the Kearney irrigators. A better
explanation is that the 538 c.f.s. feed the alluvial aquifer underlying
a vat sea of corn and alfalfa that stretches along the valley, irrigated
by thousands of wells. At any rare, the fault is not that of prior
appropriat.on law but of historical accident.9'
There are some other problems the west faces that need not con-
carr. rhe cast. except in taking warning of mistakes to avoid. Many
are 'eftovery.. fom homemade construction and jackleg engineering
y dthe Tor .erz : irncfficternt and duplicating ictches. crossiauiing of
W'ter, and wastefu! wild flood irrigation. Others result from a general
,isrpar ;' records. so ;hat there are unrepor"ted uses. records of
S. t t a ~c 7, Te authors nf ihe ndc cite Trclease. 4- .Ie! Siae Wafer Code /or Rive
Z;::.; !*.i.ow.: 2= Law -nd Contemp. Prob. 301. 311. See 'et a accompanying note 63.
I h.ouid a~lo ~e notcr that my tncle does nor toremmnend a model state water codet:he
:s.dinig tide .va absatuted ;or the original aore acccratce one by he editor of the
39. Colo. Rev. Stat. nn. A = 148-21-2 et sea. (Perm. Cum. Supp. 1969).
90. Sate ec reL Cary v. Cochran, 138 Neb. 163. 292 N.W. 239 (1940).
91. Nebraska was settled from cast to west as the homesteades encroached on Indian
ta'orY. sn the erly priorides are in he downstream east. In Colorado, however. che lands
't ti; foot of the Rockies were settled rstr so the senior rights are thar, Ld the down-
tm lands wre settled bter as the junior appropriator pushed astward apiinst the
aetyne.s of t~he Smoky Hills.


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lu O~+~~~~L~OOI I

kQr -V_6- I VD L4. 6.,1 r-MLA- ~~1 NH I kr !;Qrfb.rJRT

non-existent uses, and unauthorized and unreported changes. T:,-
are the product of inadequate staffing and funding of administra:.-
offices. In still other situations western laws could be improve,-'.
has been noted in context.
So I ask the easterner to look not at the worst but at the bes: of
prior appropriation, to see how an eastern state might profit by Zr,c
avoid some mistakes and problems that have.occurred in the w.,;
and to build and improve on a law designed for shortages as his it.:
approaches conditions of shortage.

I would like to conclude by ending my role as a wesrerne it :-.-
ing to easterners. and offering a couple of testimonials from nu::,:
territory. A few years ago I had the opportunity to discuss ware: :.
with Sir William Goode and Mr. Norman Rountree, th!ieChai"::n.:
and the Director of the British Water Resources Board. I had sIr:L.
gled through the involuted language of the Water Resourc; ..c::
1963.9" and thought I glimpsed the true nature of that Act's "pro-
tected right."
"Would you gentlemen be offended," I asked, "if I toid you "..I:
England, the home of natural flow riparianism, now has in prac::.:
effect the western American law of prior appropriation'" T'.:T
looked at each other for a moment. then laughed. Sir William relie..
"Far from taking offense, we are very pleased, for we know thr' :' Iw
is true, we have something that will work."
More recently I served as consultant lo a United Nations FooJ 2ri
Agriculture Organization project studying water conditions and ;lr-
ning water use on the island of Jamaica. I was asked to suggest a
to replace the hodgepodge of riparianism and fragmentary stas-':'
that govern the country's irregular rivers and complicated groz'-
water. The aim of the new law is to give aid and encouragement: ra
the developing Jamaican economy, based largely .on irrigated su.-:
cane with a more recent overlay of tourism, mining and manufacu71
ing, and to protect the island's cities and tropical environment' i'
submitting various drafts I encountered some resistance to Amrn-:.'
language and quietly shifted from "prior appropriation" to the 3'
ish "protected right," with which the Jamaicans felt more ccmni.:'-'"
able. During the process a counter proposal was made from ar'-":
source for an "administrative system" of permits for the "xpep-:
constant yield" and for rationing water in times of shortage or. ::
basis of "the value of the particular uses" and "the national :
92. Water Resources Act, 11-12 Eliz C38 (1963).

"he supposed simplicity of this
cared recommendations, had a
>posal won out. It has since recei
pt yet been adopted by the Parli
si the discussion the Jamaical
ly the future Commissioner for
operations would actually be con,
the type of pressures that coulc
ns that would have to be made
ed constant yield and whether
ed into it. He also saw the ea.
s that prohibited interference u;
And he was enchanted with th.
ority coupled with temporary ir.
her system I might have to ch:
hotel or starving some cane farn
.would supply the hotel, and
er to start negotiations. W'hy, I
iem get together."
a the choice, most officials wo
an Goddam Bureaucrats.



. IF. -: -.@a1a17i3f4"7,q P

P. 02


zed and unreported changes. 1
offing and funding ct administr
westernn laws could be i.-prove

not at the worst but at the be
in eastern state might profit bi
ms that have occurred in thae
.w designed for shortages as his
; ^

hiding my role as a wste:ner I
couple of testimonials from rn
he opportunity to disc-ss watd
. Norman Rountree. the ChaW
later Resources Board. I had
uage of the Water Resource
the true nature of that Act's

rnded." [ asked. "if T told you
w riparianism, now htas irn ra
:w of prior appropriation'?"
:t, then laughed. Sir Wiiiram rej
very pleased, for we knew cha
11 work."
.itant to a United Na:ions Fooc
srudying water coCdiirior.s andi
amaica. I was asked to .uggestj
7arianism and f-angmnt:-'r sri
.ar rivers and scr...i;c:ed grc
Sto aive aid and encc'rageme
yv. base-d argeiy on .r:igated :
1 tourism. mining i.- :,anufa
:ities and cropic.i ',-.::rImnr
nrered some resistac::e to .A-ne
S"prior appropriator." to th,
. the Jamaicans felt -nore c
:r proposal was made from a
:erm" of permits for -:e '--x
Water in times of shcrtage
ular uses" and "the narionaj
.3- (L963).

at." The supposed simplicity of this, compared to my allegedly
complicated recommendations, had a certain appeal, but eventually
.y proposal won out. It has since received cabinet approval although
it ha not yet been adopted by the Parliament.
During the discussion the Jamaican co-director of the project,
probably the future Commissioner for Water Resources, probed into
how operations would actually be conducted under it. He was quick
to see the type of pressures that could be brought and the difficult
decisions that would have to be made in determining the size of the
expected constant yield and whether one more permit could be
suueezed into it. He also saw the ease with which he could issue
permits that prohibited interference with previously issued protected
rights. And he was enchanted with the notion of handling shortages
by priority coupled with temporary transfers of water. "I see-under
the other system I might have to choose between shutting down a
new hotel or starving some cane farmers. But one or two farmers'
quota would supply the hotel, and I could just notify the hotel
manager to start negotiations. Why, I might even act as a broker and
heip them get together."
Given the choice, most officials would rather be Wise Administro-
cors than Goddam Bureaucrats.

DEC 06 1959 i::7=

UIIML r. 10
5052774165 PZGE.04

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