EVOLVING WATER LAW NEEDS FOR THE SOUTHEAST U.S.
Neil S. Grigg1, David H. Howells2, William E. Cox3,
and William R. Walker4
Demands on water resources in the southeast United States are
increasing rapidly. This region is part of the "Sunbelt," where indus-
trialization, urbanization, and corresponding construction activities
have been increasing rapidly. Conflicts over the allocation of water
have been aggravated by recent droughts, and increasingly stringent
federal standards regarding water quality and drinking water supplies
have served to focus attention on the potential inadequacy of the body
of law behind water management practice. The objective of this paper
is to focus on the current status of water law needs in the Southeast
and to provide a background for the future evaluation of these needs on
a state-by-state basis as well as regionally. The paper presents no
new research results, but constitutes a basis for future research into
water law issues.
Most descriptions of Southeast water law or in fact water law
throughout the U.S. begin with a discussion of the differences between
the Riparian Doctrine and the Appropriation Doctrine. These statements
will say that the Appropriation Doctrine is practiced in the semiarid
western states, whereas the Riparian-Doctrine is in use in the more
humid states in the rest of the country. Such a description is
becoming obsolete, however, because the inadequacy of the Appropriation
Doctrine is serving to force its modification in the West, and the
shortcomings of the Riparian Doctrine have been widely recognized for
over 20 years in most of the Southeast. In fact, three water law
systems seem to be at work in the country: the Appropriation Doctrine,
the Riparian Doctrine, and permit systems. In addition, various com-
binations of these three are in use. Water laws are becoming modified
on the basis of need, and original, pure doctrines do not for the most
The conclusion of these statements must be that new water law
doctrines will be needed in the future to meet changing standards of
public ownership and participation in the face of pressing needs for
development and to provide for the optimal allocation of natural
resources while maintaining high levels of environmental quality. The
shape and dimensions of the new water law doctrines that are
1/ Director, University of North Carolina Water Resources Research
Institute, Raleigh, NC
2/ Professor Emeritus, North Carolina State University, Raleigh, NC
3/ Assistant Professor of Civil Engineering, Virginia Polytechnic
Institute and State University, Blacksburg, VA
4/ Director, Virginia Water Research Center, Blacksburg, VA
22 IRRIGATION AND DRAINAGE AND WATER RESOURCES
forthcoming are unknown, but previews can be had by examining the
evolution of water law in different states. With the exception of
some possible federal-state issues of conflict, the states will develop
systems for managing water individually.
Much of the material for this paper comes from a set of papers
presented at the "Southeast Conference on Legal and Administrative
Systems for Water Allocation and Management," which was held April 19
and 20, 1978, at Blacksburg, Virginia. The workshop coordinators were
William R. Walker, William E. Cox, and David H. Howells. They will
issue proceedings of the Conference with follow-up papers and syntheses
of the findings, so these are not presented in this paper. It will,
however, draw from the resource material of the Conference to delineate
needs and to focus attention on the forthcoming material. Some
specific references are made to water law issues in North Carolina
because the authors have firsthand knowledge of these issues and
because they are typical of problems throughout the Southeast.
The Conference was carefully prepared with papers contributed in
advance from eight southeastern states: Alabama, Florida, Georgia,
Mississippi, North Carolina, South Carolina, Tennessee, and Virginia.
The references to this paper describe the water law analysis from each
state which will appear in the Conference proceedings. The water law
issues identified in advance for discussion were as follows:
1. Withdrawal uses and allocation
2. Instream uses
3. Saline water intrusion
4. Land use relationships
5. Property damage
6. Ownership of submerged lands
7. Conjunctive use of surface and groundwater
8. Protection of groundwater recharge areas
9. Emergency use
10. Interbasin transfer
11. Interstate effects
12. Shoreline protection
13. Wetland protection
14. Public access
15. Reservation of reservoir sites
A quick review of the issues above shows that they cannot be
classified simply on the basis of which water law doctrine is in effect.
The issues are much more comprehensive and demanding than can be
addressed by questions of water allocation alone.
Although it is sometimes dangerous to generalize, it seems that
the eight southeastern states under study have followed four different
paths in modifying their water law. One of the more dramatic paths has
been taken by Mississippi, which enacted in its Water Rights Act of
1956 the adoption of an appropriation system of water law. Pepper
(1978) and the Chairman of the Mississippi Board of Water Commissioners,
Mr. Sam Thompson, report that this system has worked very well for over
20 years, as demonstrated by the absence of court challenges to state
SOUTHEAST U.S. WATER LAW
administrative actions. This absence of court action could very well
simply reflect the fact that adequate water is available to satisfy all
In contrast to the Mississippi system, Florida and Georgia
(Maloney, 1978; Bomar, 1978) have enacted more vigorous pennitting-type
systems in combination with comprehensive administrative overhaul to
approach the problem in a different way. Each of these States reports
satisfaction with its own approach to the use of permitting approaches.
It should be noted that the kind of rapid development undertaken in
Florida in the last 20 years and the urbanization in Georgia, especially
around Atlanta, stand in sharp contrast to the agricultural-rural
character of present-day Mississippi.
The States of North Carolina and Virginia (Heath, Cox, 1978) both
report the adoption of several specific legislative packages designed
to address different water management problems. In both States it
appears that although comprehensive approaches to water legislation
have not been undertaken, there Is a feeling that legislation Is
adequate if administered by the appropriate state programs.
The States of Alabama, South Carolina, and Tennessee (Putt, Moser,
Sikora, 1978) all report patchwork approaches to the problem of
implementing appropriate water law. No one seemed to think that the
body of law in existence in these three States is adequate, but there
do not appear to be current initiatives to undertake fundamental reforms
of this problem.
The Conference participants, all of whom were knowledgeable with
regard to water resource management in their respective States, were
asked to rate the issues as to significance concerning surface water
and ground water. When the cumulative results are considered (based on
a questionnaire return rate of 68 percent), the five surface and ground
water issues of greatest concern in the order of importance were as
Surface Water Ground Water
Withdrawal uses and allocation Protection of ground water recharge
Interbasin transfer Withdrawal uses and allocation
Instream uses Conjunctive use of surface and
Interstate effects Saline water intrusion
Land use relationships Land use relationships
The survey yielded the following information concerning the
surface water issue and ground water issue of greatest concern in each
of the participating States:
24 IRRIGATION AND DRAINAGE AND WATER RESOURCES
State Issue of Highest Priority
Withdrawal uses and
Georgia Instream uses
Mississippi Interstate effects
North Carolina Withdrawal uses and
South Carolina Withdrawal uses and
Ownership of sub-
Tennessee Instream uses
Virginia Withdrawal uses and
Withdrawal uses and allocation
Saline water intrusion
Land use relationships
Protection of ground water
Protection of ground water
Conjunctive use of surface and
ground water withdrawal
Withdrawal uses and allocation
Protection of ground water
Withdrawal uses and allocation
North Carolina Problems
The evolving needs of the southeastern states for water law changes
must be approached on an individual basis. The case of North Carolina
is illustrative, however, and it will be described briefly. The basic
resource material for this description is from the presentation by
McRorie (1978) at the Southeast Conference on Water Law. McRorie
reported that there were four basic areas of concern In North Carolina
water law: (1) withdrawal uses and allocation, (2) Instream uses,
(3) interbasin transfer, and (4) reservation of reservoir sites.
The problem of withdrawal uses and allocation is obviously of
concern due to increasing demands for large rates of withdrawal for
municipalities, industries, and power plants. Applicants for permission
to withdraw water will continue to be frustrated-until a rational and
equitable procedure for allocating the available water supply is avail-
able. The North Carolina approach to solution of this problem through
capacity-use regulations has not proven to be very workable due to
concerns by staff members of regulatory agencies that the effort
required to manage the programs may be excessive.
Sufae atr rondWae
SOUTHEAST U.S. WATER LAW
The problem of allocating water use permits was central to the
conflict that gave birth to the appropriation system of water law. The
reasonable use interpretation of the Riparian Doctrine seems appropriate
only so long as demands for water withdrawals are not excessive. It
seems that current trends are leading toward designations of levels of
water quantity and quality being reserved for instream uses. This will
put more pressure than ever on the water available for allocation.
The second area of concern, instream uses, is directly related to
the problem of allocating water withdrawals. At the present time we do
not really know how much water is required for ecologically related
instream uses such as the preservation of fish and wildlife. It might
be said that in coastal streams such as those in North Carolina water
allocation must begin at the downstream end with a definition of the
quality and quantity of water resource necessary to maintain coastal
water ecosystems. One could work back upstream and specify how much
water could be allocated at different points along a stream and how the
quality could be changed. The fundamental problem with this approach
is that no statement is available concerning instream water needs at
the coast. We hope that appropriate research is underway and will be
available soon to answer these problems.
Another concern with instream uses is related to lake level fluctu-
ations and the possible impact on ecosystems. The withdrawal of water
from lakes for the purpose of water supply, energy, or industrial uses
must be carefully regulated.
The problem of interbasin transfer is of great concern throughout
the Southeast, and indeed all across the country. These problems arise
at the micro level and at the macro level. A good example of a micro-
level problem would be diversions from one small upstream watershed to
another for the purpose of municipal water supply. There are a number
of situations such as this in North Carolina including both existing
cases and proposed diversions. An example of a macro-water diversion
can be seen from the present proposals to divert water from North
Carolina streams to furnish a water supply for the Norfolk metropolitan
area. Another example is the water supply for Birmingham, Alabama. One
would think that Birmingham was in an area of abundant water, but in
fact the water supply for Birmingham is diverted through a tunnel from
the Cahaba River, which is not immediately adjacent to the metropolitan
area. There are numerous other examples throughout the Southeast, and
the problem of interbasin transfer will demand increasing attention.
The final major problem described by McRorie is that of reservation
of reservoir sites. Urban growth takes place at locations chosen by
private developers. Unless reservoir sites can be identified in
advance and reserved, they may be lost to future water projects. The
same could be said of reserving appropriate sites for all kinds of
public facilities such as open space, park land, power plants, schools,
etc. This problem relates as much to land use planning as it does to
26 IRRIGATION AND DRAINAGE AND WATER RESOURCES
After attending the Southeast Conference, Heath (May 1978)
described ten issues which are related to, but go further than the 16
points raised earlier. Specific additional issues raised by Heath
1. Extension of the Capacity Use Areas Law, or development
of a more comprehensive management framework for water
2. Diversion or interbasin transfer.
3. Interstate issues.
4. The growing impact of federal law.
5. Land-water relationships.
6. Sunset legislation.
7. Financing federal water projects.
8. Flood damage reduction.
9. Minimum streamflows for instream and withdrawal uses.
10. Organizational and administrative concerns: state and
Although the southeastern United States has considerable water
supplies, it cannot escape the requirement that careful water manage-
ment be developed through appropriate water law and institutions. The
Riparian Doctrine has long ago proven inadequate for application in
the Southeast in its pure form. Modifications of the Riparian Doctrine
and in fact the pure Appropriation Doctrine, are already in evidence in
several states. All states in the Southeast will have to ask themselves
the questions in the future of whether their body of water laws is
adequate to meet emerging needs.
SOUTHEAST U.S. WATER LAW 27
Bomar, Robert S., "Water Law in Georgia," April 1978.
Cox, William E., "Virginia Water Law: A Functional Analysis with
Respect to Quantity Management," April 1978.
Heath, Milton S., Jr., "Some Current Legal Issues in North Carolina
Concerning Diversion of Water for Public Water Supplies and Related
Matters," April 1978.
Heath, Milton S., Jr., "Some Emerging Water Law Issues in North
Carolina," WRRI News, University of North Carolina, May 1978.
Maloney, Frank E., "Florida Water Law," April 1978.
McRorie, A. F., "North Carolina Agency Response," April 1978.
Moser, William C., "Water Law in South Carolina," April 1978.
Pepper, Jack W., "The Water Laws of Mississippi," April 1978.
Putt, Larry 0., "Riparian Proprietorship and Rights in Alabama,"
Sikora, Vincent A., "Tennessee Water Law Problems," April 1978.
DEVELOPMENT OF WATER LAW IN VIRGINIA
William E. Cox,a Associate Member ASCE
William R. Walker,b Member ASCE
Virginia water law has undergone considerable development in the past
decade. The common law doctrines that traditionally have served to
allocate surface and ground water have been supplemented by statutory
controls applicable to many aspects of water use. In addition to these
supplemental controls, an administrative allocation system has replaced
the common law system for allocation of ground water in certain regions
of the state. Other more comprehensive modifications of basic water
law are currently being considered by a legislative study commission.
Thus the current period is a significant one in the history of water law
evolution in the state.
As is usually the case, the present interest in the institutional frame-
work for water allocation has arisen as a result of water supply prob-
lems. Although Virginia's average precipitation of 43 inches per year
classifies the state as a water-abundant area in general, serious local
and regional shortages have developed primarily as a result of two fac-
tors: (1) the population distribution does not match the pattern of
water availability and (2) natural water supplies exhibit great varia-
bility over time. These two factors have combined to produce several
problem areas in the state.
One of the areas of concern is the southeastern Tidewater region that
encompasses the Norfolk-Virginia Beach metropolitan area. Surface water
sources in the area have essentially been fully developed on the basis
of dependable streamflow and/or environmental factors. The coastal
plain region possesses extensive ground water supplies, but the poten-
tial for further development of ground water in the southeastern area of
Virginia is limited due to existing industrial pumping from the princi-
pal aquifer system. Substantial reductions in artesian pressures have
already occurred, producing the possibility that increases in pumping
may lead to dewatering of the aquifer system and/or inland movement of
saline water from the coastal area. The capacity of existing raw water
sources in the Tidewater area is being approached, and a substantial
water supply deficit has been projected for the future in the absence of
water importation. In response to this need, the U.S. Army Corps of En-
gineers has conducted a study of alternatives for additional water sup-
ply and has recommended a transbasin diversion from Lake Gaston in the
aAssistant Professor of Civil Engineering, Virginia Polytechnic
Institute and State University, Blacksburg, Virginia 24061.
bDirector, Virginia Water Resources Research Center, Virginia Poly-
technic Institute and State University, Blacksburg, Virginia 24060.
VIRGINIA WATER LAW
RoanoKe .Kver Basin. This study has generated substantial controversy
of an interstate and inter-regional nature and is responsible in large
part for the current interest in water law in Virginia.
Another water supply problem exists in the northern Virginia area that
is part of the Washington, D.C. metropolis. The Potomac River is a ma-
jor source of supply for this area. Although the average flow of the
Potomac is far in excess of water supply needs, the fact that the flow
of the Potomac is largely unregulated creates problems during periods
of low natural streamflow. The fact that the maximum combined with-
drawal from the river has exceeded the low flow of record indicates the
existence of a significant supply problem.
Existing Allocation Mechanisms
Existing Virginia water law, within which solutions to water supply
problems must be developed, is based on the traditional practice of ap-
plying separate allocation principles to the different phases of the
hydrologic cycle. This practice originated in the common law and has
been perpetuated in legislative enactments and proposals to date. The
sources of water of primary interest with regard to water allocation
are surface streams and ground water. A third legal category of water
consists of surface runoff, but law in this area has focused on defin-
ing injury associated with disposal; allocation has not been a legal
issue of significance.
Although ground water constitutes only about 5 percent of total fresh-
water withdrawals in Virginia, the occurrence of significant ground
water management problems in certain areas of the state has resulted in
greater development of applicable law than in the case of surface water.
However, these expanded controls apply only in specially designated geo-
Administrative Allocation in
The state's administrative allocation system is based on the Ground
Water Act of 1973,1 which declares that control of ground water re-
sources is essential to ensure the preservation of the public welfare,
safety, and health. A fundamental aspect of the Act is that its princi-
pal regulatory measures do not apply statewide but are intended to be
restricted geographically to those areas having identified ground water
management problems. Implementing the regulatory provisions of the Act
in such an area requires that it first be designated as a "ground water
management area" by the State Water Control Board according to proce-
dures in the Act.
The Act specifies four conditions2 which, individually or in combina-
tion, justify the initiation of ground water management area proceed-
ings. These include:
30 IRRIGATION AND DRAINAGE AND WATER RESOURCES
1. Excessive decline in ground water levels or artesian pressures,
2. Interference between the wells of two or more ground water
3. Actual or imminent overdrawing of the available ground water
4. Actual or expected pollution of ground water.
The State Water Control Board may initiate a proceedings upon its own
motion or upon the petition of any county, city, or town within the area
in question. The boundary of the area is subject to determination by
the Board. Although the Board has final authority with regard to desig-
nation of management areas, the Act provides definitive guidelines in
the form of required procedures and findings of fact prior to designa-
Two ground water management areas have been designated to date. At its
meeting in January, 1975, the Board designated a major portion of the
state's southeastern corner a ground water management area.3 The desig-
nated area is that section of the coastal plain lying south of the James
River and east of the fall line; it includes the counties of Prince
George, Southampton, Surry, Sussex, and Isle of Wight and the cities of
Chesapeake, Franklin, Hopewell, Norfolk, Portsmouth, Suffolk, and Vir-
ginia Beach. A second management area was established by an order
adopted September 27, 1976.4 This area consists of the Eastern Shore of
Virginia, including the counties of Northampton and Accomack and all
towns within these counties.
The primary effect of designating a ground water management area is to
implement a special management program which includes regulation of
ground water use in the area. The principal control provision in the
Ground Water Act is the requirement that ground water use within desig-
nated areas requires an authorizing permit from the State Water Control
Board; however, certain classes of users are exempted from the permit
One category of exemptions includes uses in existence on the date an
area is designated, intended uses where wells are under construction, or
any use in existence within two years prior to the date of area designa-
tion.5 Existing uses must be registered with the Board and are acknowl-
edged by issuance of a certificate of ground water right. Such rights
are limited by the extent of application to beneficial use. This pro-
vision theoretically gives the Board authority to review existing uses
to some extent rather than automatically to issue requested certificates
in the amount of previous use. Full utilization of this provision has
the potential to mitigate the weakness in the management program created
by exempting existing uses from the permit requirement. Since existing
uses may constitute the principal source of ground water problems in a
given area, some control over such uses appears essential to effective
ground water management.
However, the potential of the Act to effectively control existing uses
has been seriously jeopardized by the failure of the Act to provide a
VIRGINIA WATER LAW 31
specific means by which to measure existing water use. The law does not
impose restrictions in terms of average use on the basis of past experi-
ence; instead it appears to define the extent of such rights as the max-
imum'daily use within the previous two-year period.6 Thus users whose
rates of withdrawal have varied over a substantial range can substan-
tially increase average water use without violating restrictions imposed
by the Act.
Another group of special uses will remain exempt, even if not in exist-
ence at the time of area designation. This group includes "the use of
supplying of ground water for agricultural and livestock watering pur-
poses, for human consumption or domestic purposes, or for any single in-
dustrial or commercial purpose in an amount not exceeding 50 thousand
gallons a day."7
Although the exemption provisions do not make specific reference to
municipal use or public water supply, the Virginia Attorney General has
determined that municipal withdrawal for human consumption and other
domestic purposes is exempt without regard to quantity.8 Municipal
withdrawals for single industrial and commercial purposes exceeding the
50 thousand gallon per day limitation theoretically are subject to the
permitting requirement. However, regulation of municipal withdrawals on
a selective basis poses problems of administrative feasibility since in-
dividual withdrawals are likely to serve a variety of types and sizes of
users. Thus it is doubtful as to whether municipal withdrawal of ground
water can be effectively regulated under existing legislation.
For new or enlarged ground water uses within a designated area not ex-
empt because of their special nature, no inherent right of the landowner
is recognized. The right to initiate a new use must be acquired from
the Water Control Board.9 The Board may grant the right as requested,
but it is authorized to impose conditions and limitations in the permit,
approve the permit for less water than requested, or reject the applica-
tion. The basic legislative criteria to guide the Board's decisions
with regard to a proposed well are that new uses are to be limited by
the requirement of beneficial use and that undue interference with ex-
isting wells will not be allowed. The Act provides that "[n]o applica-
tion shall be approved when the same will deprive those having prior
rights of beneficial use of the amount of ground water to which they are
lawfully entitled."10 This statutory provision introduces the concept
of priority in time as a basic element of water rights and expresses the
fundamental concept of the doctrine of prior appropriation although the
term "appropriation" is not used.
Thus the Ground Water Act is a fundamental departure from the tradition-
al approach to water resources allocation in Virginia. But while the
Act itself appears to be a step in the right direction, the existence of
several serious deficiencies gives rise to the question of whether the
Act provides an adequate basis for an efficient ground water allocation
Judicial Allocation in Non-Designated Areas
The Virginia Supreme Court has decided a limited number of cases arising
32 IRRIGATION AND DRAINAGE AND WATER RESOURCES
out of disputes between different ground water users and between water
uses and other resource developers, but common law ground water rights
have been incompletely defined. In fact, the Virginia court has never
explicitly accepted any particular ground water doctrine. The court ap-
pears to have narrowed its choice to absolute ownership or reasonable
use, the two primary doctrines that have been applied in the eastern
United States. This refusal to adopt a particular doctrine has been
based on the view that its decisions in the cases decided to date would
have been the same under either of these two doctrines.11
Although the position taken by the court indicates a similarity between
the two doctrines, certain distinguishing characteristics do exist. The
underlying concept of the absolute ownership doctrine is that each land-
owner has complete ownership and control over water underneath his
land.12 Therefore each landowner has an unlimited right to use ground
water or to interfere with its movement through land development, sub-
ject only to the qualification that waste and malicious injury to others
generally is unlawful. Thus the doctrine constitutes a rule of capture
and creates essentially no enforceable water rights since no right of
legal action exists for injury produced by the activities of others.
In the case of the reasonable use doctrine, the landowner is viewed as
having the right to make any reasonable use of ground water on the over-
lying land, or the right to reasonably develop property although inter-
ference with the water supplies of others may result. Although use of
the term "reasonable use" to identify this doctrine of ground water law
suggests similarity with the riparian doctrine, a fundamental distinc-
tion can be made between the two doctrines. In the case of the riparian
doctrine, reasonableness is a relative concept and the rights of each
party are determined with regard to the needs of the other users. The
determination of reasonableness under the ground water doctrine as de-
veloped in the decisions of several states does not depend on comparison
with other uses of the source of supply. A landowner engaged in a "rea-
sonable use," generally interpreted to mean any traditional water or
land use, is under essentially no constraints with regard to the impact
of his use on others and can legally destroy his neighbor's supply.
Although the reasonable use doctrine is similar to the absolute owner-
ship doctrine with regard to ground water use on the overlying land, the
doctrines do produce a different result with regard to export of ground
water for use on land other than that from which the water is pumped.
The absolute ownership doctrine places no restriction on place of water
use, but one of the general principles of the reasonable use doctrine as
it has been developed in other jurisdictions is that use is limited to
the land from which the water is taken. This principle has seen the
greatest application in situations where municipal water supplies are
pumped from parcels of out-lying land and piped into urbanized areas.
The Virginia court has never directly considered'this issue but appar-
ently has recognized the prohibition against export as a basic feature
of the doctrine.13
The Virginia court has not explicitly accepted the reasonable use doc-
trine, but the court has indicated that the trend of modern opinion is
in favor of this rule.14 In fact, the absolute ownership doctrine now
has been rejected in most states in effect if not in title. Thus it is
VIRGINIA WATER LAW
likely that the reasonable use doctrine will ultimately be adopted by
the Virginia court, along with its prohibition on export of water.
Most of the ground water decisions of the Virginia Supreme Court have
involved coal mining operations that interfere with ground water sup-
plies available to other parties,15 either on overlying or adjacent
land. The principle has been well-established that such interference
does not produce liability where the mining is accomplished by tradi-
tional, non-negligent methods. The primary exception to this position
of no liability consists of the situation where injury to a water supply
is associated with the collapse of the land surface as a result of in-
adequate subsurface support.16
Several additions to law applicable to Virginia's streams have been made
in recent years. These additions create or expand state water manage-
ment activities in a variety of areas, including policy, planning, and
regulation. Most of these new functions have been vested in the State
Water Control Board, the state's primary water management agency.
Virginia water policy has been formulated by the State Legislature17 and
by the State Water Control Board18 in response to specific enabling
legislation.19 These policy statements contain provisions directly
relevant to water allocation. For example, waste of water is held to be
against public policy. But policy provisions relevant to surface water
allocation have to be implemented through indirect methods; the state
has no direct allocation mechanism in effect.
Authority to conduct comprehensive water resources planning20 was trans-
ferred to the State Water Control Board in 1972 after being vested in
the Division of Water Resources of the Department of Conservation and
Economic Development since 1966. Prior to 1972, planning reflected an
emphasis on water quantity issues but since that time has primarily
focused on quality. This shift was produced in large part by federal
requirements and grant availability in the area of water quality plan-
ning. Also of possible significance is the fact that the sole responsi-
bilities of the State Water Control Board originally were in the water
quality area. Renewed attention to quantity-oriented planning has re-
sulted from current water supply problems. As in the case of water pol-
icy, however, there is no direct linkage between water planning and
actual allocation of streamflow.
The third area of water-related legislative activity involves direct
controls over various activities associated with water use. This legis-
lation establishes several regulatory programs at the state level deal-
ing with such matters as dam construction,21 dam safety 22 public water
supply,23 scenic river protection,24 and water quality.25 Local regula-
tory authority in certain areas has also been established. The primary
example consists of authority for a county or municipality to approve or
disapprove water supply projects proposed for construction within its
boundaries by other political subdivisions.26 The potential impact of
this requirement is tempered by provision for appeals to a special
three-judge court where extra-territorial projects are disapproved. But
34 IRRIGATION AND DRAINAGE AND WATER RESOURCES
these local and state constraints on water use do not perform the allo-
cation function; they simply add another level of controls to those al-
ready, imposed by basic water law.
In fact, none of the statutory enactments concerning water policy, plan-
ning, or regulation of water use activities has modified the traditional
common law system of surface water allocations. All three types of leg-
islation can be expected to affect water use to some extent, but the
traditional allocation process remains unchanged.
Thus it can be stated that the predominant institutional factor with re-
gard to streamflow allocation continues to be the riparian doctrine, the
common law doctrine of water rights traditionally accepted in the east-
ern United States. This doctrine is simply a collection of principles
for resolving water use conflicts that have been established in the
accumulated decisions of the courts. Water allocation under the doc-
trine is a function of the courts of the state, and the primary mecha-
nism of enforcement is the private lawsuit between parties to a specific
controversy over water use.
The basic premise of the riparian doctrine is that water rights arise as
an incidence to the ownership of land bordering or traversed by a nat-
ural watercourse. Under the current Virginia interpretation of the doc-
trine, each riparian landowner has the right to "make any use of the
water of the stream in connection with his riparian estate and for law-
ful purposes within the watershed, provided he leaves the current dimin-
ished by no more than is reasonable, having regard for the like right to
enjoy the common property by other riparian owners."27 This statement
of the riparian right establishes two fundamental limitations on water
use: (1) the use must be on riparian land and (2) the use must be rea-
Due to the restriction of use to riparian land, the definition of such
land establishes limits for the transport of water. The basic require-
ment for land to be considered riparian is physical contact with the
stream in question. Subdivision of land within the watershed into mul-
tiple ownership destroys the riparian status of those tracts no longer
in contact with the stream. The maximum extent of riparian land gener-
ally is considered to consist of the boundary of a stream's watershed.28
This restriction is a direct impediment to transbasin diversions. In a
1972 opinion, the Attorney General of the Commonwealth stated that in-
terbasin transfer violates the principles of the riparian doctrine.29
The concept of reasonableness is the central element in defining the
extent of a water right under the riparian doctrine. Reasonableness is
a relative matter depending on the individual circumstances of the par-
ticular case.30 A fundamental guideline is that a given water use must
be compatible with other uses relying on the same source. Thus a con-
cept of sharing the available supply is a basic aspect of the riparian
doctrine. However, not all uses are of equal standing in the sharing
process. Domestic use is granted a higher priority than other uses.
Satisfaction of domestic needs appears to be the sole purpose for which
the entire flow of a stream may be taken.31 However, municipal use is
not included in the domestic classification. The Virginia Supreme Court
has held that municipal use is not a traditional riparian right.32
VIRGINIA WATER LAW
Water sights for such use must be acquired by purchase or condemnation
where riparian uses would be adversely affected.
Although the reasonableness concept establishes a limit on the amount of
adverse impact one water user can inflict on others, it does not neces-
sarily prohibit all adverse effects--only those exceeding some reason-
able level. This factor is the primary distinction between the reason-
able use and natural flow theories of the riparian doctrine. The nat-
ural flow theory received widespread acceptance during the early
development of water law in the United States. It holds that each
riparian owner has a right to the continuance of the natural flow of a
stream except as diminished by the domestic uses of other riparians.
Under this theory, a water use for non-domestic purposes that reduces
the flow of a stream as it passes lower riparian land is therefore a
violation of the lower riparian's rights even if the reduction produces
no harmful effects. Since the reduction in streamflow constitutes in-
fringement of a property right, legal action can be initiated at the
time of streamflow reduction and is not dependent on the existence of
actual injury arising from a reduced water supply. But the right of
action under the reasonable use theory does not arise until actual in-
jury occurs; therefore the riparian owner not using water or one whose
use is not adversely affected by a reduction in streamflow has no basis
for a legal action.
After an initial period of relatively widespread acceptance, the natural
flow theory began to decline in favor of the reasonable use theory.
This latter theory is more utilitarian and allows greater water resource
development due to its emphasis on use rather than preservation of
natural conditions. However, elements of the natural flow theory still
remain in the law of some states. Furthermore, the courts sometimes
fail to distinguish between the theories, with the result that certain
decisions may contain language indicating acceptance of both theories.
In Virginia, certain court decisions appear to endorse the natural flow
theory,3 and the Virginia Supreme Court apparently has never expressly
repudiated this concept in favor of reasonable use. However, statements
of the court regarding the necessity for actual physical injury as a
prerequisite for legal action34 suggest acceptance of the reasonable use
Water rights under the riparian doctrine normally are not fixed in mag-
nitude but may vary over time due to changes in water availability or
other conditions. One potentially significant source of changed condi-
tions is the initiation of new water uses based on previously unused
riparian rights. Such rights generally are not lost because of non-use
but continue to attach to riparian property. These unused rights con-
stitute a major source of uncertainty for water users in riparian juris-
dictions since no record of such rights exists.
Although riparian rights are not lost by simple non-use, they can be
lost through the process of prescription. The basic requirement for
the acquisition of a prescriptive right is adverse use for a certain
period of time, which in Virginia is 20 years.35 The use must be hos-
tile to the interests of the original owner, open and ascernible, and
continuous. Unlike the prescriptive period under the natural flow doc-
trine which begins to run at the time that natural streamflow is
36 IRRIGATION AND DRAINAGE AND WATER RESOURCES
diminished, the prescriptive period under the reasonable use concept
does not begin to run until actual injury to a water use occurs. Thus
a prescriptive right cannot be established against an unexercised ripar-
ian right since the injury requirement cannot be satisfied. Neither can
a prescriptive right be obtained against an upstream riparian since such
owners cannot be adversely affected by a downstream water diversion.
To evaluate the effectiveness of the riparian doctrine, it is necessary
to consider actual implementation of the doctrine as opposed to viewing
its theoretical principles in a vacuum. The doctrine is often criti-
cized as limiting water use because of its undue restrictiveness, but
many of the restrictions are eliminated or mitigated at the applied
level. For example, the prohibition against interbasin transfer is not
enforced where surplus water exists since riparian owners have no right
of legal action until injured or at least threatened with specific harm.
Similarly, municipal use and others not recognized under the doctrine
are permitted if water in excess of the needs of valid riparian users
exists. But water use based on the continued existence of a surplus is
subject to substantial uncertainty. Such uses would not be on equal
footing with others in times of temporary shortages, and long range
growth in use by riparian landowners could eventually eliminate the sur-
In fact, uncertainty is a characteristic of established riparian rights
as well. Since the right is not quantified, the user or potential user
has difficulty establishing the magnitude of a particular right at a
given time. Furthermore, the flexible reasonableness criterion allows
the magnitude of the water right to change with time in response to
exercise of previously unused rights or other changed conditions. In
theory, a use considered reasonable at one point in time can even become
unreasonable at some future time if conditions change sufficiently.
These various elements of the uncertainty problem are likely to distort
investment decisions and therefore have an adverse effect on efficiency
of water use. This issue is one of the most substantial deficiencies
of the riparian doctrine.
Other weaknesses of the doctrine can be identified. Although the impact
of the restriction to use on riparian land is reduced where surplus
water exists, the requirement imposes a bias against non-riparian use
whenever conflict with riparian use occurs. This preference for ripar-
ian use is not based on evaluation of the relative merits of the con-
flicting uses; therefore inefficiency is the possible outcome. Another
weakness arises from the fact that water allocation decisions are made
in the context of a specific lawsuit often involving a limited number
of parties and restricted consideration of the issues. This process may
not allow adequate input to reflect the broad public interest. Related
to this problem is the inability of the state under the existing system
to coordinate allocation decisions with applicable water resource pol-
icy and plans.
The various deficiencies of the riparian doctrine have given rise -to
efforts to modify Virginia's existing surface water allocation law. A
proposal forwarded by the State Water Control Board in 197636 for public
consideration was modeled after the Ground Water Act of 1973 and pro-
vided for designation of surface water management areas. A somewhat
VIRGINIA WATER LAW
unique feature was the provision for designation of areas with a water
supply surplus as management areas when the water was needed for use in
This proposal proved to be controversial and was not enacted into law;
instead, the State Legislature at its 1977 session directed the State
Water Control Board to undertake a study of water problems and alloca-
tion.37 A State Water Study Commission was established to assist the
Board. However, the study did not produce definitive results by the end
of 1977, and a request was made for continuation of the study by the
1978 session of the Legislature. The Study Commission was continued by
the 1978 session, with its final report to be completed by the end of
The state is now awaiting the conclusion of the study. The Legislature
has delayed action on most proposals for significant changes in or addi-
tions to state water law pending the availability of the Study Commis-
sion findings and recommendations. Considerable weight traditionally
has been given the results of legislative study commissions. Thus the
study has the potential to produce far-reaching impact on water alloca-
tion in Virginia.
There are several deficiencies that should be remedied and additional
issues that should be addressed as the state re-appraises its water al-
Several provisions of the Ground Water Act of 1973 should be amended.
Grandfathered uses should be recognized to the extent of average annual
use rather than on the basis of maximum daily use occurring within the
previous two-year period. The concept of beneficial use, which serves
as a theoretical constraint on.excessive water use, should be defined
in the Act so as to provide definite authority for the State Water Con-
trol Board to impose reasonable requirements for water use efficiency
on users. All exemptions should be eliminated except for a category en-
compassing all uses of relatively insignificant magnitude. The Act
should explicitly provide for transfer of permits, and issuance of time-
limited permits should be allowed under certain conditions.
In the case of streamflow allocation, it appears that some form of ad-
ministrative permit system would be more efficient than the existing
system. As an alternative to an administrative regulatory approach, an
approach based on economic incentives (e.g., a withdrawal tax) would
merit consideration. However, lack of experience with the incentives
approach suggests greater acceptability of direct governmental controls.
If regulatory controls are to be employed, most of the suggestions above
with respect to the Ground Water Act would apply equally to surface
water allocation. In addition, procedures for protection of minimum
streamflows necessary for fish and wildlife and other instream uses is
essential. Current state water policy recognizes this need, but specif-
ic mechanisms for implementation must be part of the allocation process.
Although development of administrative procedures for surface water
38 IRRIGATION AND DRAINAGE AND WATER RESOURCES
allocation appears necessary, this program should not be developed inde-
pendently of existing ground water controls. Individual controls over
surface or ground water use may be desirable under special conditions,
but management institutions should recognize physical interdependencies
between these phases of the hydrologic cycle and provide for conjunctive
management of the two "types" of water.
Much data exists as to the workability and consequences of various water
allocation institutions in the form of the experiences of other states.
Institutions must be adapted to the particular conditions in a given
state, but much can be gained from comparative analysis. Since the ap-
propriative doctrine is often presented as a more efficient alternative
to the riparian doctrine, special attention should be given to the prob-
lems experienced in the existing appropriative states. In addition to
the appropriative doctrine, administrative allocation systems with var-
iations on some of the traditional elements of the appropriative doc-
trine have been implemented in certain states. The various alternatives
should be carefully weighed. Consideration of prior experience of other
states will allow Virginia to benefit from the mistakes of others in
developing water law. Without such consideration, the state is not
likely to avoid these mistakes but instead is likely to repeat them.
1. Ground Water Act of 1973, Va. Code Ann., sec. 62.1-44.83 et seq.
2. Id., sec. 62.1-44.95.
3. "An Order of the Virginia State Water Control Board," January 27,
4. "An Order of the Virginia State Water Control Board," September 27,
5. Ground Water Act, supra note 1, sec. 62.1-44.93.
6. Id., sec. 62.1-44.93(a).
7. Id., sec. 62.1-44.87.
8. Letter from Andrew P. Miller, Attorney General of Virginia, to
Thomas R. McNamara, Chairman, Virginia State Water Control Board,
January 8, 1976.
9. Ground Water Act, supra note 1, sec. 62.1-44.97.
10. Id., sec. 62.1-44.100(e).
11. See Clinchfield Coal Corp. v. Compton, 148 Va. 437, 139 S.E. 308
12. See Miller v. Black Rock Springs Improvement Co., 99 Va. 747, 40
VIRGINIA WATER LAW
S.E. 27 (1901); Heninger v. Mcainnis, 131 Va. 76, 108 S.E. 671
13. See Clinchfield, supra note 11.
15. C&W Coal Corp. v. Salyer, 200 Va. 18, 140 S.E. 2d 50 (1958); Oak-
wood Smokeless Coal Corp. v. Meadows, 184 Va. 168, 34 S.E. 2d 392
(1945); Couch v. Clinchfield Coal Corp., 148 Va. 455, 139 S.E. 314
(1927); Clinchfield, supra note 11.
16. See Stonegap Colliery Co. v. Hamilton, 119 Va. 271, 89 S.E. 305
17. Va. Code Ann., sec. 62.1-10 et seq. (1973).
18. Virginia State Water Control Board, "Commonwealth of Virginia Water
19. Va. Code Ann., sec. 62.1-44.36 (1973).
20. Id., sec. 62.1-44.38.
21. Id., sec. 62.1-80 et seq.
22. Id., sec. 62.1-104.1 (Supp. 1978).
23. Id., sec. 62.1-45 et seq. (1973), as amended (Supp. 1978).
24. Id., sec. 10-167 et seq. (1978).
25. Id., sec. 62.1-44.2 et seq. (1973), as amended (Supp. 1978).
26. Va. Code Ann., sees. 15.1-37, 15.1-332.1, 15.1-875, 15.1-1250.1
27. Virginia Hot Springs Co. v. Hoover, 143 Va. 460, 467, 130 S.E. 408
28. Town of Gordonsville v. Zinn, 129 Va. 542, 106 S.E. 508 (1921).
29. Letter from Andrew P. Miller, Attorney General of Virginia, to
Thomas J. Rothrock, Member, Virginia House of Delegates, April 25,
30. Davis v. Town of Harrisonburg, 116 Va. 864, 83 S.E. 401 (1914).
31. White v. Town of Luray, 175 Va. 218, 8 S.E. 2d 369 (1940).
32. Gordonsville, supra note 28; Town of Purcellville v. Potts, 179 Va.
514, 19 S.E. 2d 700 (1942).
33. See, e.g., Hite, supra note 31, p. 225.
40 IRRIGATION AND DRAINAGE AND WATER RESOURCES
34. Gordonsville, supra note 28, p. 560.
35. Cornmtt v. Rhudy, 80 Va. 710 (1885); Nichols v. Aylor, 7 Leigh (34
Va.) 546 (1836); Stokes v. The Upper Appomattox Co., 3 Leigh (30
Va.) 318 (1831).
36. Virginia State Water Control Board, "Water Conservation Act of
37. Virginia General Assembly, HJR 236 (1977).
38. Virginia General Assembly, SJR 1 (1978).
PENNSYLVANIA WATER LAW REFORM IN PROGRESS
R. Timothy Weston*
From the earliest colonial days, bountiful water resources have provided an
indispensable foundation for Pennsylvania's social, economic and environmental
prosperity. The Commonwealth's cities, agriculture, commerce and industry have
been built upon even more diverse and intensive use of water for transportation,
power, food production, municipal supply and manufacturing processes. Water is,
foremost, an essential natural resource a cornerstone of Pennsylvania's environ-
ment and life itself.
Although we have tended to take water for granted, recurring droughts,
devastating floods and continuing pollution problems give ample evidence of the
need for better water management in the Commonwealth. The first comprehen-
sive inventory of Pennsylvania's water resources was conducted early in this
Since that first inventory, Pennsylvania's population has grown to nearly 12
million. The Commonwealth confronts more intense problems of flood damage
and pollution and increased demands for water supply, navigation facilities, and
water-oriented recreation. Yet for over 60 years Pennsylvania failed to develop
and update a comprehensive state water plan to meet our changing needs and
In the late 1960's, Pennsylvania once again addressed the need for
comprehensive water resources planning and management. As a vehicle to assess
our current problems and develop a framework for the future, the Department of
Environmental Resources has worked for ten years in preparing the State Water
Plan. The goal of this first-cut Plan is to systematically identify our existing
water resources; project water demands, needs and problems; and screen potential
solutions, including policies, programs and projects, to be included in the State's
future water management effort. The Plan focuses not only on physical problems,
but also the legal, financial and institutional arrangements which must form the
basis of successful resource management.
Simultaneously, the Pennsylvania Clean Streams Law and Sewage Facilities
Act, together with the Federal Water Pollution Control Act, stress the goal of
pollution prevention through the consideration of water quality management on a
watershed basis and development of comprehensive wastewater management
plans. Responding to these legislative mandates, the Department of Environ-
mental Resources initiated its Comprehensive Water Quality Management
Planning Program (COWAMP) in 1971. COWAMP encompasses all elements of
wastewater management including point and non-point sources of pollution,
agricultural runoff, abandoned mine drainage, sludge disposal and ground-water
quality. Its overall objective is to establish a cost-effective, long-range basis for
water quality management in Pennsylvania, within the larger context of
preserving and protecting environmental values and amenities.
* Assistant Attorney General, Pennsylvania Department of Environmental
Resources, Harrisburg, Pennsylvania.
42 IRRIGATION AND DRAINAGE AND WATER RESOURCES
Taken together, the State Water Plan and COWAMP efforts comprehend a
broad spectrum of water quantity and quality problems. Pennsylvania's quality
and quantity plans and programs have historically developed in separate and
parallel efforts, raising significant questions of coordination in developing a truly
comprehensive and balanced water management plan for the State. The problems
of water throughout nature's hydrologic cycle, however, cannot be segregated. It
is imperative that all water related problems and issues be treated as a whole. If
the Commonwealth's water supply, drinking water, navigation, flood control,
stormwater management, water pollution, recreation and environmental problems
are to be effectively addressed, we must develop a more integrated approach to
water resources issues and policies.
As a first step in this direction, the Department has initiated a single, open
public process to formulate recommendations for the State's future water
resources policies. I would hope in this paper to highlight a few of the important
water law issues and options now under consideration. As a primary focus, I
intend to concentrate on the field of water use, allocation and conservation. A
discussion of drainage rights and stormwater management policy is contained in
another paper delivered at this Conference, and the entire panoply of water-
related questions now under study ranging from organization and financing of
drinking water systems to water pollution control and wetlands preservation-is
arrayed in a forthcoming State publication, "Water Policy Issues for
Statewide Water Use
Pennsylvanians rely on water for a wide variety of uses. For purposes of
analysis, these are usually divided between instream and withdrawal uses.
Instream uses, which utilize water in place in lakes and watercourses, include
navigation, swimming, recreational boating, fish and wildlife habitat, hydropower,
wastewater assimilation and general environmental and aesthetic values. With-
drawal water uses require removal of water from its ground or surface source, and
include both consumptive and nonconsumptive uses. Although the State Water
Plan has devoted considerable time to assessing withdrawal uses, a major goal of
the Plan is to provide for future balanced use and conservation of water resources,
and to protect instream and downstream flows required for multiple environ-
mental and economic purposes.
Pennsylvania's municipalities, industries, farmers and citizens withdraw and
use over seventeen billion gallons of water each day. Approximately 95 percent of
that water is withdrawn directly from over 50,000 miles of streams and rivers
which comprise the Commonwealth's surface waters. Direct ground-water
withdrawals provide the remaining five percent of water supply.
Total water withdrawal uses increased steadily from 1910 to present, but
have begun to level off. In 1970, water withdrawals statewide totaled 16.3 billion
gallons per day (bgd). This usage is projected to increase to 17.8 bgd by 1980, and
then decrease to 17.1 bgd by 1990.
While total water use is peaking out, consumptive water use has begun a
sharp increase. In 1970, consumptive water use in Pennsylvania was 742 million
gallons per day (mgd). It is projected to increase to 1,240 mgd by 1980, and total
almost 1,570 mgd in 1990.
The simultaneous leveling off of total use and substantial rise in consump-
tive loss results from several significant developments. In the industrial and
power sector, pollution control standards and technological development have
made recycling more economic and necessitated use of cooling towers to dissipate
PENNSYLVANIA WATER LAW
waste heat. Both processes make more efficient use of water and reduce
withdrawals, but are more consumptive. In addition, changing agricultural
economics.and practices are stimulating increased crop irrigation, which will
result in substantial consumptive use in the coming several decades.
Condensor cooling in electric generating stations is by far the greatest
water use within the State. The 50 electric generating stations in Pennsylvania
currently account for 60 percent of all the water withdrawn. Second in rank is
self-supplied industry at 29 percent, followed by public water supply (ten percent)
and agricultural water use (one percent). Modest rates of increase in total
withdrawals are projected for public water supply and self-supplied industrial use
over the next 15 years. Trends indicate over a six-fold increase may be
experienced in agricultural use by 1990. Withdrawals for the electric utilities are
expected to decrease by approximately 1,400 mgd (14 percent) between 1980 and
1990, as old generating facilities using once-through cooling are replaced by new
power plants equipped with cooling towers. These trends are, of course, subject to
several significant variables. Self-supplied industrial use may well decrease in the
future as more stringent water quality standards (such as those imposed under the
Federal Water Pollution Control Act) and technological advances make industrial
processes which recycle water more economical. Crop irrigation may increase at
a greater rate than projected depending on agricultural economics and the
weather. Public water supply withdrawals are similarly dependent on future
patterns of population distribution, land development, water pricing and conserva-
More important, however, are the trends in consumptive water use. While
industrial consumptive uses are greatest at present, in the not distant future,
consumption in agriculture, industry and electric generation will be of the same
approximate magnitude, each totaling between 400 to 450 mgd by 1990. This
significant shift in use will have a major impact on Pennsylvania's water
resources, particularly since many of the consumptive uses are expected to
develop in upstream areas.
While consumptive losses in public water supplies are not large (ten percent
of total withdrawals), they may become significant depending on the location of
the water supplier's source and service area. Often the public water supplies are
diverted from one stream, delivered to the service area, and discharged through a
sewage treatment facility into another stream. When such interbasin transfers
occur, the loss of water from the source stream can cause very critical situations
during dry periods and seriously affect aquatic life and downstream users.
Overall, current and projected water use in Pennsylvania is relatively
insignificant compared to the total water available during average flow
conditions. During drought periods, however, large increases for power genera-
tion, industrial production and irrigation will exacerbate water deficits in some
regions and sufficient water for all users will not be available. Low flows are a
common occurrence and few realize how different they are from "average"
conditions. For example, on the Susquehanna River the average flow is 8.5 times
greater than the mean annual low flow and almost 20 times greater than the
lowest flow record. Flows less than average occur 68 percent of the time. On
smaller streams the variation in flows is generally even greater.
1 Total withdrawals required for a "closed-cycle" cooling tower system at a fossil
fueled power generation plant, for example, are only four percent of those
required for once-through cooling; however, consumptive use is about 2.5 times
44 IRRIGATION AND DRAINAGE AND WATER RESOURCES
These trends in water use present significant problems for several of
Pennsylvania's major river basins. The Monongahela River, for example, is
intensively used to meet the water needs of steel mills and other industries in the
Pittsburgh area, 17 public water suppliers and three electric generating facilities.
It is simultaneously the nation's most heavily used inland waterway. Nearly 100
percent of the Mon's low flow of 240-300 cfs is provided by releases from Army
Corps of Engineers and virtually all of this flow is required to operate Federal
navigation works, protected under the navigation servitude. This means that the
Federal Government may under low flow conditions prohibit any diversion of river
water which may reduce or interfere with flows required for navigation.
Current and projected interbasin transfers and consumptive uses for public
water supply (37 mgd), power plants (17 mgd) and industry (117 mgd), would
substantially conflict with navigation during low flows. Put bluntly, in the next
significant drought, Pennsylvania will face the difficult choice of shutting down or
curtailing navigation, industrial production, power generation and municipal water
supply. Already the Department has been forced to deny additional water
allocation requests to public water suppliers in the basin and advise current and
prospective users to seek alternate locations and sources. The timing of a major
water crisis in the Monongahela Basin is solely dependent on the weather.
Equally difficult problems face the Delaware Basin whose watershed forms
the major water source for almost 25 million residents in the Northeast
Metropolitan Corridor from New York City to Wilmington. In the Delaware, the
fundamental issue is the balance of out-of-basin diversions to New York and
Northcentral New Jersey, in-basin consumptive losses through power generation
and agriculture, and minimum flows needed to protect lower basin water supplies
from salinity intrusion and contamination from numerous point and non-point
Pennsylvania simultaneously confronts the challenge of dramatic expansion
of ground-water use. Between 1960 and 1966 direct withdrawals of ground water
for all uses increased 35 percent, while surface water diversion grew only ten
percent. Over one-half of the Commonwealth's public water supply systems
obtain all their water from ground-water aquifers. Another 13 percent of the
supplies use ground water to meet part of their demands. In addition, in excess of
600,000 individual households derive water from private wells, and over 20,000
new wells are drilled annually in the Commonwealth. Potentials for conflict
among competing water users are growing. Cases have been reported throughout
the State of interference with public and private supplies. This is particularly
prevalent in, but not confined to, the coal fields of Central and Western
Pennsylvania. Similar interference occur increasingly where large industrial and
public water supply wells are located near shallower wells serving individual
homeowners. While most well interference problems are scattered throughout
areas with generally low to moderate ground-water use, in portions of South-
eastern Pennsylvania it appears that intensive public and private water
withdrawals have oversubscribed the resource. Preliminary studies indicate that
current withdrawals in parts of Bucks, Montgomery and Chester Counties may be
exceeding the recharge and safe yields of local aquifers, resulting in lowering
water tables and ground-water mining. If this continues, the resource will be
eventually depleted. The only potential solutions to these problems lie in
programs for regulating water withdrawals, locating and spacing of wells,
protection of recharge areas, and in a few cases, possible artificial recharge of
It is a common maxim that "you never miss the water till the well runs dry".
The same can be said today about our water laws and institutions. The public will
PENNSYLVANIA WATER LAW
not miss a rational, comprehensive water law until it needs that law to resolve
conflicts ii water use when the wells run dry, the drought strikes, the flood
ravages or waters become too polluted to use.
From the earliest days of the Commonwealth, our water laws and
institutions have been premised on two assumptions: (1) there is an abundance of
water throughout the State, enough to cover all uses in all places; (2) private
enterprise, in the form of unencumbered land development, can best plan for,
develop and manage water resources in the public interest.
In the first two hundred years of our development, these assumptions and
the policies they imply may have been more or less correct. Relatively few
water conflicts have reached our courts probably less than five hundred to one
thousand. Water laws and institutions have been slow to develop and most issues
have been left to private citizens to resolve by agreement, custom or occasionally
resort to a law suit. Our legal systems for water allocation and use, such as the
riparian doctrine, were established in times of relative abundance of resources and
were intended primarily to settle local disputes. The purpose of our allocation
scheme was fundamentally peace keeping on occasional conflicts between small
groups of users.
But the question which faces us today is how well will these water laws and
institutions serve the citizens of Pennsylvania in the next fifty years? In
Pennsylvania, water conflicts between municipal suppliers, agricultural users and
energy development are on the horizon and in some cases already at hand. Our
experience of emergency drought conditions during the mid-1960's in the heavily
industrialized and populated northeast corridor was a clear warning to
Pennsylvania and its sister states. We can no longer assume that the water will be
there simpy because we want it.
Itis evident that the successful management of Pennsylvania's limited water
resources requires the development of rational water laws and institutions which
can address not only current problems, but conflicts and issues which we may not
be able to completely forecast today. We cannot answer all of the questions today
which may arise now or in the future. What we can hope to accomplish is the
design of a legal and institutional scheme which can provide a basic framework for
the management of our water resources in the public interest in years to come.
As part of the State Water Plan, we have undertaken a comprehensive study
of the water laws and institutions which affect the management of Pennsylvania's
waters. This includes a study of local, State and Federal statutes and regulations,
court decisions, and both private and governmental approaches to water problems.
To give you some flavor of the challenge we- and many other eastern
states face, let me briefly summarize our existing water allocation laws.
Common Law Water Allocation Rules
At present Pennsylvania has no comprehensive legal or institutional
approach to water allocation. Most allocations are governed by "common law"
cases dealing with riparian rights and ground-water withdrawals. The common law
doctrines often operate contrary to hydrologic fact, treating interrelated ground
and surface water resources under separate and inconsistent rules.
Use of waters in streams and lakes is governed by the riparian rights
doctrine. Owners of lands bordering watercourses may withdraw and use water on
their riparian lands. Waters drawn from streams may only be used on riparian
lands adjoining the watercourse. Unlimited withdrawals are allowed for domestic
(drinking, bathing and livestock) purposes, but diversions for irrigation, industrial
and other uses are restricted to "reasonable" amounts which do not materially
diminish stream flow or affect downstream uses. It should be emphasized,
46 IRRIGATION AND DRAINAGE AND WATER RESOURCES
however, that riparian owners gain no right to use a specific quantity of water for
a given period. Riparian rights are subject to constant change depending on
competing needs and other development in the watershed.
While use of the rare "subterranean" stream may be subject to riparian
doctrines, withdrawals from percolating ground water are governed by drastically
different rules. Pennsylvania common law permits a landowner .to withdraw
ground waters beneath his land for "natural and ordinary" uses located on that land
regardless of the consequences of his neighbors. Included within the term "natural
and ordinary" uses are virtually all economic enterprises, including domestic water
use, mining, irrigation and manufacturing. Thus, as late as 1957 the Pennsylvania
courts ruled a mine operator could dewater and lower water tables throughout a
valley with no responsibility for injuries to owners of domestic wells whose water
supply was thereby cut off. Liability can only arise where the withdrawal is
malicious or negligent, and causes foreseeable harm to adjacent lands. However,
withdrawals to serve uses off the land containing the well- such as public water
supply in a nearby community- are considered "unreasonable" and "unlawful";
liability for damages will be imposed if the withdrawal interferes with other users.
These common law water rights are insecure, providing little guidance to
landowners and investors prior to a crisis or dispute. Current rules are both
ambiguous and unpredictable. Arbitrary distinctions between use on or off the
land where water is extracted often result in diseconomic water use and
discourage economically efficient allocations. The common law doctrines are ill-
suited to allocate water resources under conditions of relative scarcity and are
unable to effectively regulate consumptive uses. Case law does not provide a
system of priorities or a mechanism for establishing priorities in situations of
conflict, drought or other crises. No means are available to assess the relative
economic and social values of competing uses, the effect of allocations upon the
total water resources and environmental factors, or the ability of each use to
fulfill its needs by alternate means. The current common law system relies
almost entirely on case-by-case court adjudications, a process which is expensive,
time consuming and unable to avoid conflict or encourage voluntary conservation
and management of water use.
The Commonwealth's current authority to regulate water allocations is
extremely narrow and fragmented. The Department of Environmental Resources,
under the 1939 Water Rights Act, only oversees withdrawals from springs, lakes
and streams by public water supply entities. Public water supply diversions only
account for nine percent of the total withdrawals from Pennsylvania surface
waters. These diversions are relatively nonconsumptive, with approximately 90
percent of the waters taken being returned through public sewage systems. The
largest consumptive water uses, including manufacturing and power takings, are
not subject to regulation. In 1923 the Pennsylvania legislature made an abortive
attempt to bring withdrawals by thermal-electric generating plants under State
regulation. However, a built-in glitch in the law which conditioned State
regulation upon non-existant Federal Power Commission jurisdiction over such
facilities prevented the 1923 Act from taking effect.
Thus, only public water supply withdrawals from surface sources are
regulated and registered by the State. Ground-water withdrawals are not covered
by any existing State regulatory program.
The only broad-ranging allocation management programs are conducted by
the Delaware and Susquehanna River Basin Commissions, covering the eastern
two-thirds of the Commonwealth. However, the basin commission programs have
PENNSYLVANIA WATER LAW
been largely limited to major uses and projects of interstate impact. On an
intrastate basis the commission programs do not provide a truly comprehensive
water allocation scheme.
In summary, Pennsylvania has no existing legal or institutional approach
capable of conjunctively managing our ground and surface water resources.
Developed during a period of apparent abundance, current laws and programs are
not designed to deal with shortage conditions or allocate water among competing
users. Water uses can be initiated without any review or consideration of whether
adequate supplies will be available to sustain all diversions and instream uses
within a watershed. If we are to address the challenge of more intense demands
on limited resources and effectively conserve and manage our waters, a more
comprehensive planning and allocation system must be developed.
Major Policy and Program Options
Water Allocation Programs
With this background, the State Water Plan has identified 14 major goals for
Pennsylvania's future water use and allocation programs:
(1) The legal rules and institutional arrangements for water allocation
should encourage conjunctive management of all ground and surface
waters as a single hydrologic resource.
(2) The program should address the relative availability or scarcity of the
resource. As water becomes scarcer, the allocation system must
evolve from a scheme designed to resolve individual problems to one
capable of maximizing the efficient use and conservation of the
(3) The system must be capable of managing water as a replenishable
resource. Waters are capable of use and repeated reuse if consumptive
uses and interbasin transfers are limited. The goal of water resources
management should be to arrange and allocate uses so as to derive the
maximum sustainable benefits from the limited resources available.
(4) Water law should define allowable uses in a predictable and unambigu-
ous manner. Arbitrary distinctions among similar uses (such as
riparian/nonriparian uses) should be avoided. The water management
program should create a system of priorities or at least a mechanism
for creating priorities in situations of conflict. The program should
focus on (1) the relative economic and social need for each use, (2) the
effect of each use on water resources and the environment, and (3) the
ability of each use to fulfill its needs by other means in times of
(5) If Pennsylvania chooses to manage its water resources for long-term
conservation and productivity, it is essential that consumptive uses,
particularly through power plant, agricultural and interbasin transfer
processes, be controlled.
(6) The legal system should encourage economic efficiency in the
allocation and use of water resources. It should promote those uses of
water which produce the greatest economic, social and environmental
value and encourage the least wasteful methods of water use.
(7) The system should provide adequate security of water rights to permit
beneficial investment in enterprises which require water. This
requires both the ability to accurately predict the legal rules and
knowledge that future new competing water uses even of a higher
priority will not impair existing rights without compensation.
48 IRRIGATION AND DRAINAGE AND WATER RESOURCES
(8) Water law should simultaneously provide sufficient flexibility of water
rights to facilitate changes over time in the allocation of water
resources between regions, uses or users. The system should include
mechanisms for water rights transfers through voluntary (sale) and
involuntary (eminent domain) processes. New beneficial water uses
should not be locked out by rigid legal preferences or reservations
incapable of modification over time to meet changing economic, social
and environmental needs.
(9) Water law should be designed to provide a fair and equitable allocation
of resources. This criteria should, however, be applied with caution.
Favoring one interest group through preferences for water allocations
necessarily implies discrimination against another. Rigid preferences
rarely lead to fairness and often undermine the efficient allocation and
use of water.
(10) Future water law should permit and protect water development
activities and programs to store, manage and augment stream flows
and artificially recharge ground-water aquifers for designated
(11) Water allocation programs should protect instream water needs as well
as provide for withdrawal and diversion uses. In order to preserve
instream uses, the water management program should establish
minimum stream flow criteria (which may vary by stream, region or
season) to guide and condition withdrawals and, particularly, to
regulate consumptive uses and interbasin transfers.
(12) Water allocation and water quality management should be closely
coordinated. Future planning of water supply and waste treatment
projects should be integrated.
(13) Water allocation programs should be sensitive to and protect environ-
mental values. Water is an integral element in the maintenance of all
ecologic systems and is a fundamental resource for virtually all human
activities. Decisions regarding the place, type and manner of water
use should promote environmentally-sound land use and economic
development. Moreover, future land use and development decisions
should be sensitive to water resources constraints.
(14) Future water laws must provide an administrative management
system. A successful program must depend on conflict avoidance and
voluntary compliance, which in turn require a clear delineation of
rights and duties in common situations. Courts and quasi-judicial
forums should be reserved for exceptional cases and designed to
minimize time and cost.
The State Water Plan is currently considering several options for improve-
ment of Pennsylvania's water allocation arrangements. Among the prime
alternatives are (1) adoption of a permit allocation system for major uses, with
reform of common law rules and other arrangements governing small withdrawals,
and (2) enactment of an allocation program limited to "critical" areas. Included in
the broad list of questions requiring public discussion to select and refine these
options are (a) what uses should be regulated (designated by purpose or quantity of
withdrawal), (b) what criteria should govern allocations, (c) what uses should be
given priority or preference in allocation, (d) should allocations be permanent or
time-limited, (e) who should administer a water allocation program and what
personnel and budget resources are required.
Over the past year these questions have been put to the citizens of
Pennsylvania in a series of public forums on water use policy. The initial results
PENNSYLVANIA WATER LAW
of those meetings displayed a remarkable degree of consensus- covering both
urban and rural regions and a broad spectrum of users concerning the need for
basic reform of our water management law. All but one of ten regions in the
Commonwealth recommended adoption of a statewide water allocation program
requiring permits for all new or expanded withdrawals. The lone dissenting region
would have limited the program to critical areas where use exceeds or threatens
to exceed the safe yield of the resource. Most commenters concurred in the
exclusion of small homeowner wells from the permit system. These wells are very
numerous (600,000 now in place), but combined only account for one to two
percent of total water use in the State and can be more effectively controlled
through density and well spacing provisions in land use plans and local subdivision
regulations. There was almost universal agreement that future water programs
should cover ground and surface water in a single cohesive program focused on
conjunctive management and that water allocation should be tied to a regional
water plan and budget.
If adopted, this program would assure both greater security to water users
through issuance of rights to specified quantities of water for a stated period of
time, and adequate flexibility to periodically adjust water rights in light of new
conservation techniques and changing economic and social priorities.
Water Conservation Policy
In addition to the overall water allocation program, Pennsylvania is
exploring several related major water management policy proposals. Clearly, a
prime objective in future water management must be conservation and more
efficient use of our existing resources. Conservation efforts must address rising
consumptive losses in power, irrigation and manufacturing use, which together
represent 80 percent of the consumptive use problem and 90 percent of total
statewide water use. In the power generating sector, consumption is a direct
result of the energy waste. If we continue to capture no more than one-third of
the thermal energy available from fuels burned in electric facilities, we will
increasingly waste both energy and water resources. The possibility of using
"waste" heat in residences, industries and intensive agriculture around power
plants may now be technologically impractical. In the future it will be
imperative. Similarly, we must develop and encourage adoption of technologies
and processes to reduce water waste in industries and agriculture.
In comparison to power, industrial and irrigation uses, public water supply
presents a substantially different set of conservation problems. Consumptive
water loss is not a major problem, amounting on average to about ten percent of
municipal system withdrawals. However, the implementation of policies encour-
aging regional sewage treatment systems to take advantage of economies of scale
and reduce Federal and local outlays, has led increasingly to interbasin transfers
of water. The other fundamental focuses of conservation in public water supply
should be (1) to minimize capacity (and hence investment) requirements in
waterworks and sewage systems, and (2) to reduce, where applicable, stress upon
ground-water resources. These goals will require reduction of wasteful water use
habits in existing residential and commercial facilities; retrofitting water
reduction devices or techniques into existing homes and businesses where
necessary and feasible; and inclusion of water conservation in design and
construction of new development.
To implement conservation in each of these sectors, the State Water Plan
has proposed for public consideration a number of options, including:
50 IRRIGATION AND DRAINAGE AND WATER RESOURCES
(1) Adoption of water pricing policies and rate structures which encourage
water conservation, including revised block structures and peak use
period (for example, summer) surcharges.
(2) Revision of building and plumbing code standards to require use of
water efficient technology and water saving devices.
(3) Laws requiring water efficiency labeling for water consuming
(4) Educational programs and incentives (loans, grants and tax adjust-
ments) to encourage installation of water saving devices in existing
homes and facilities.
(5) Demonstration programs to develop economically viable methods of
using waste heat from electric generating and industrial facilities.
(6) Imposition of water conservation conditions or use restrictions in
water allocation permits.
(7) Development of hydroelectric facilities at existing dams (to reduce
reliance on thermal electric plants).
Instream Use Protection and Low Flow Policy
As already noted, protection of instream uses such as navigation,
recreation, fisheries, hydropower, and water quality maintenance is a major
issue, particularly challenged by growth in consumptive use and interbasin
transfers. Pennsylvania's current legal approaches, such as the riparian doctrine's
"reasonable use" rule, fail to identify and protect minimum stream flows
necessary to preserve vital instream and downstream uses.
Several years ago, the Low Flow Task Force to the State Water Plan
developed proposed criteria to be used for planning and general guidance in
regulating water use. That proposed guideline called for the makeup of
consumptive uses and interbasin transfers when stream flows fell below the seven
day-ten year low flow. The goal of the criteria is to prevent new or increased
withdrawals from further reducing critical low flows. The original trigger was
primarily based on minimum flows needed to dilute treated wastes and maintain
stream water quality. This guideline has now been adopted as a regulatory
standard by the Susquehanna River Basin Commission and applied to all new or
increased consumption commenced after 1971. Similar flow protection policies
are being followed in the Delaware Basin, focused on maintaining control over
salinity and pollution in the lower river.
The State Water Plan is currently studying more sophisticated criteria to
establish low flow needs in various streams depending on their particular instream
uses and hydrologic characteristics. The Plan is also considering the options
available to different consumptive users in each basin to implement the policy.
These alternatives include, for example, coordinated scheduling of irrigation
withdrawals, reduction of consumptive uses, multipurpose use of releases from
existing reservoirs, development of new upstream storage, and ground-water use
during low flow periods.
The Process and Limits of Change
Before concluding, some mention is in order regarding the process and limits
Both the Federal and State Constitutions forbid government from taking
private property without just compensation. This prohibition includes the taking
of "vested" water rights. The goal of any constitutional change in the law should
be to preserve the reasonable expectations of all water users. Most states which
PENNSYLVANIA WATER LAW
have adopted water legislation, thus, allow existing users to register their
withdrawals and continue their use (unless current uses exceed available supplies
requiring all to cut back). These enactments which attempt to clarify and reform
water law into a more predictable, rational system have almost universally been
The process for change is equally important as the constitutional question.
Water law raises many basic factual and policy issues which must be considered in
drafting future legal and institutional approaches to the problems identified in this
study. Some of the options discussed could be considered and adopted by the
courts in the course of some future litigation. But the reluctance of the courts to
take such a bold, even though logical, step is understandable. Traditional, even if
absurd, legal rules are hard to change in the context of individual cases. By
necessity, fundamental reform of Pennsylvania's water resource rules must rely
upon the General Assembly's special capabilities to engage in broad fact-finding
and to enunciate rules, principles, objectives and policies for future guidance. The
legislature can provide for technical investigation, create expert bodies to
implement legislation, and carry out systematic review of the results. The future
of our water law and management systems and their ability to meet future
challenge rests largely in the General Assembly's hands.
These have just been a few of the major issues which require study and
decisions by Pennsylvania's officials and citizens. The State Water Resources
Policy Advisory Committee, composed of some 50 members representing Federal,
State and local government, business, labor, professional and environmental
interests, is now in the process of formulating statewide recommendations on
these issues. In the next few months we contemplate development of a series of
proposals for statutory, regulatory and in some cases judicial steps to resolve the
problems identified. I suspect that this will merely be the beginning of a
significant, and I would hope informed, debate regarding the future of
Pennsylvania's water laws and institutions.
It at least appears clear to me that we can no longer afford to muddle our
way through the management of Pennsylvania's valuable water resources. When
the well runs dry, the Commonwealth will truly miss the water. The time to
consider how we will ,isely manage those resources in the interest of all our
citizens is now at hand.
2 For a fuller exposition on Pennsylvania water allocation law, see R. Weston and
M. Gang, Law of Ground Water in Pennsylvania, 81 DICKINSON L. REV. II
(1976)1 R. Weston and J. Uray, Legal Control of Consumptive Water Use by
Pennsylvania Power Plants, 80 DICKINSOn L. lSV. w154 IS .s).
ADMINISTRATIVE ALLOCATION AND ECONOMIC EFFICIENCY
Clyde F. Kiker,1 Gary D. Lynne2 and Albert Starr3
Eastern common law water doctrines are based on the concept that
water is a common property resource, with all having an entitlement to
use it, but with no specific private rights. Statutory modification of
eastern water law doctrines to include administration is a response to
the inadequacies of common law doctrines. The intent of such modifica-
tion is to provide for regulation and management, so as to enhance both
public and private rights in water. Such enhancement is to be accom-
plished by considering hydrologic interrelationships, minimizing
uncertainty (providing security), and providing flexibility that will
allow maximum beneficial use of water and eliminate waste (18). Ques-
tions arise as to how, specifically, this will be accomplished.
The Florida Water Resources Act of 1972 [based on the Model Water
Code (18)] is an example of an administrative systems being used in the
east. Study of the Florida system provides insight into.the direction
regulation is taking in eastern states. This paper concentrates on the
relationship between the water management authority and private water
users. Specifically, questions of economic efficiency and distribution
are posed. The paper is organized in four sections. The first section
deals with the basis for allocation of specific quantities of water to
private users under Florida's administrative system. This section in
conjunction with other writings (12, 14, 18, 19, 23, 24) provides an
understanding of Florida's water law. The second section addresses
alternative approaches to allocating private water entitlements. The
alternatives are based on various aspects of water law and are evaluated
from an economic perspective. The third section introduces a study
presently under way which has as its objective the quantitative evalua-
tion of the alternative allocation approaches. The evaluation also is
from an economics perspective. Conclusions make up the final section.
Private Water Use Under the Florida System
The stated intent of the Florida administrative system is to pro-
vide for the management of water for efficient use and conservation as
well as for protection of natural resources, fish and wildlife, and
1Assoc. Prof., Food and Resource Economics Dept. and Dept. of Agricul-
tural Engineering, Univ. of Fla.
2Asst. Prof., Food and Resource Economics Dept., Univ. of Fla.
3Former Grad. Asst., Food and Resource Economics Dept., Univ. of Fla.
ADMINISTRATION AND EFFICIENCY
health and welfare. Actual administration is assigned to five water
management districts established along hydrologic lines, with final
decision making authority resting with an appointed governing board (6).
The heart of water regulation as it relates to private water users
is a permit system. A consumptive permit must be obtained for removal
of water from all sources for all uses, except for pumping by individ-
uals for domestic consumption. For a consumptive permit to be granted
it must be established that the proposed use (a) is "reasonable-benefi-
cial," (b) will not interfere with any presently existing legal use
(a permitted use), and (c) is consistent with the public interest (6).
Water allocation procedures consistent with these guidelines are
specified in the form of operating rules and regulations by each dis-
The granting of permits, [it effect entitlements to water] under the
Florida system is based on, as is the case in most permit systems,
technical criteria. The recognized "entitlement" to water for a pro-
posed "reasonable" use is related to two technical considerations: the
long run availability of water from a specific source and the quantity
of water "required" by the use. The following example, representative
of the approach for an agricultural use permit [South Florida Water
Management District] will serve to clarify. A producer applies for a
groundwater permit to irrigate a 64.75 hectare [160 acre] citrus grove.
The district determines the maximum evapotranspiration requirement for
the crop [i.e., an approximation of the water required for optimum plant
growth and maximum yield]. His "entitlement" becomes either (a) the
quantity of water annually recharged to the groundwater from the citrus
grove, or (b) the quantity of water required to satisfy the difference
between evapotranspiration and average effective precipitation. The
producer is given a permit for the smaller of these two quantities, as
long as he does not "significantly affect" the surrounding users of wa-
ter with his pumping. Similar "requirements" approaches are used for
establishing permitted quantities for other private uses, industrial,
commercial, and domestic uses. Obviously there are no economic
efficiency guidelines being utilized in this criterion.
The Act is unclear with regard to how use is to be shifted from
"old" to "new" uses. Current practice by the districts ties the water
entitlement to ownership of the land for a certain period of time
[up to 20 years], or until the land is transferred to another owner,
whichever time is shorter. The entitlement is extinguished if an
attempted transfer occurs (24). Under this system, shifts from "old"
to "new" uses can occur only when the permit terminates. As a result,
as soon as physical supplies are all allocated [all entitlements as-
signed], economic activities having higher value [if any exist] will be
excluded for up to 20 years.
The Act also provides little information on how water is to be
divided in a water shortage or emergency. Water shortage plans are
being developed by each district. In periods of water shortage, each
district may order a temporary reduction in total water use, impose
restrictions on one or more classes of permits, make changes in condi-
tions of an individual's permit, place restrictions on use of water, or
54 IRRIGATION AND DRAINAGE AND WATER RESOURCES
suspend permits. And, in the case of an emergency, they may apportion,
rotate, limit or prohibit the use of the water resources of the district
There is, then, uncertainty associated with an individual's enti-
tlement to water. Whether his entitlement will be enhanced or dimin-
ished will depend upon the allocative procedures specified in the
operating rules and regulations developed by the districts. The authors
believe the body of eastern water law and Florida water law are flexible
enough to allow approaches to allocating water entitlements to private
individuals which contain substantial economic criteria (14). In the
next section three alternative approaches in addition to the technical
approach are discussed from an economic perspective.
Alternative Approaches to Allocation
Inherent in administrative water management and allocation is the
consideration of all benefits and costs from water use. This all-encom-
passing approach includes evaluation of benefits obtained from public
uses [such as certain kinds of recreation, aesthetics, wildlife preser-
vation, etc.] as well as private uses. The allocation of service flows
from water among these diverse [and often mutually exclusive] uses
involves multiple objective planning, is extremely complex, and is
beyond the scope of this paper. However, under an administrative sys-
tem, entitlements for private individuals to withdraw water will be
assigned [most Florida users already have permits for specific quanti-
ties], and as stated earlier, this is the focus of this paper.
It is assumed in the remainder of this paper that the administra-
tive authority, through some type of broad benefit-cost calculus, has
established certain flows of water available for public and private
uses. The flow for private uses may be limited geographically to the
extent of a watershed or groundwater basin, and established as that
quantity not unduly interfering with the "public interest." Economic
criteria are especially useful for guidance in allocating water among
these alternative, money-valued private uses. A concern for the maxi-
mization of social welfare presupposes that economic efficiency in
resource use is also a concern.
A conceptual model can help to clarify issues and allow comparison
of several suggested alternatives for water allocation. A production
model is used for demonstration purposes. By making certain assump-
tions about human behavior and the structure of the economy it can be
shown that maximum social welfare will occur where the net returns to
productive activities are maximized subject to available resources.
That is to say, when each individual producer maximizes his net return
the entire region in which these producers are located will be obtaining
maximum net benefits (i.e., the largest "economic pie") from the use of
regional resources (4).
A consumer demand model would also be useful to discuss the same
ADMINISTRATION AND EFFICIENCY
By maximizing net revenues to productive activities subject to a
limited water supply, criteria for economically efficient water allo-
cation among private uses can be derived. Interdependencies [among
firms] associated with water use are assumed to exist. That is, a
firm's cost of pumping water is influenced by the amount of water
pumped by other firms [The authors show the details of the derivation
elsewhere (15) and draw upon these details in the discussion herein.]
The criterion can be represented by the set of equations
___ p m _clab(.)
Pj m -lab2) + .; for all 3 and k 
3xilk a=l b=l axljk
Pj = the price of the jth output,
yJk = the jth output produced by kth producer; j=1,2, ..., m, k=l,
2, ... p.
xljk = water (from a common supply) used to generate the jth output
by kth producer.
xijk = other inputs i. used to generate jth output by kth producer;
i = 2, 3, ... n.
clab (Cxk for all j and k) = total cost of obtaining water to
generate the jth output by kth producer (note: a=kth producer
and b=jth product).
X = a Lagrange multiplier.
The left hand side (LHS) of Equation  is the marginal value of the
product (MVP) of water used to produce j (by k) found by multiplying the
price of the product (Pj) times the marginal productivity of water in
producing 1. While the right hand side (RHS) represents the marginal
social cost of using water to produce j (by k), it is not a "price," in
the sense of a market determined price, as there is no market for water
drawn from the common pool. The partial derivatives from the clab(')
function represent the costs incurred by producer k when he withdraws
an additional unit of water from the common pool and the cost this with-
drawal inflicts on other producers.
The magnitude of A is also of special interest as it reflects the
relative scarcity of the resource. If the total supply X4 is not en-
tirely used, A=0 and the value of an additional unit of water is zero.
If all X? is used (iO), 1 is the opportunity cost per unit of X? to
society, associated with having a limited supply of water.
Returning to the question faced by the water management authority--
how to allocate quantities of water to maximize social benefit--the con-
ceptual model can help clarify the consequences of alternative ap-
proaches. Four alternatives are considered. The first is the technical
criterion currently used by the Florida districts. The second approach
grants property rights such that a private market can function, ascribed
to by Trelease (23). The third, based on a recommendation by Harl (7),
allows the water authority to grant permits based on an economic criter-
ion. And the fourth, proposed by the authors (14, 15) is a hybrid which
allows control and management of a pseudo-market by the administrative
The technical approach is based on the notion that a process
56 IRRIGATION AND DRAINAGE AND WATER RESOURCES
"requires" a specific quantity of water. Using the agricultural exam-
ple, allocation is based on the evapotranspiration of the crop, assuming
'maximum yields. This criterion is equivalent to allocating water such
that the marginal value productivity is zero [for Pj > 0], or
PJ yjk = 0 .................... .
The implication is
p a aclab()
S F clab_') + o = 0; for all j . . [31
a=l b=l .X13l
This requires there be no costs to either producer k or anyone else
affected by producer k's use of water. Also, it is implied there is no
opportunity for the water to be used for any other purposes [i.e., A =
Another case also serves to illustrate problems with the technical
approach. In one Florida district all producers within a hydrologic
region receive the same quantity of water [per acre] when recharge to
the common supply is less than the difference between evapotranspira-
tion and average effective precipitation. All producers are given per-
mits for the amount recharged [on a per acre basis]. Again, direct and
opportunity costs and marginal values associated with use are being
ignored. If, for example, producer k uses water more effectively than
producer k+l in the production of yj, then
p yjYk cljk ') p Yjk+l acljk+l( 
axljk 3xljk sxljk+l aXljk+l
Similarly, if producer k produces a product j that has a higher
marginal value product than the product j+l of producer k+1 and
their marginal costs are similar [again, assuming opportunity costs
pj3y clk') P 3y+1, k+ aclj+, k+l( 
axljk Dxljk xlj+1, k+l 8xlj+l, k+l
In both these situations water could be transferred to user k with a
subsequent increase in the size of the economic pie. If user k+l was
reimbursed by some means, we could have a Pareto movement, with "every-
one better off." We are forced to conclude the technical approach is
by necessity economically inefficient.
Trelease (23) suggests that eastern states use the administrative
structure presented in the code in conjunction with the appropriation
doctrine used in the western states. He argues the administrative
structure will be adequate to protect the resource and that the appro-
priation doctrine will provide needed security and flexibility for
private rights (15) [also, see Anderson, (1) and Hutchins (11) on these
ADMINISTRATION AND EFFICIENCY
points]. There are several particular problems with this approach.
First, if the water is interpreted to be public property, granting a
right to water in perpetuity, provides a substantial windfall gain to
superior appropriators. In addition if the authority desires to in-
crease the quantity of water available for public use, the authority
must purchase back rights which were initially granted at no charge.
It is unlikely that this possibility will be strongly supported by the
public (18). Second, it is likely water will be inefficiently used.
The true (social) marginal costs are understated and individuals will
use more water than is socially efficient (15). The problems depicted
in Equations , ,  and  are appropriate here [see Kiker and
Lynne (15) for verification]. Other authors (3, 8, 10, 22) have pointed
out other shortcomings of the appropriations doctrine.
Limited Economic Information
The third approach, suggested by Harl et al. (7) for the Iowa per-
mit system, is to allocate the fixed supply of water such that the value
of the marginal product of water is equal in all uses. This procedure
provides an optimal allocation only when the external costs are zero
[and the direct marginal costs of pumping and using water are all equal]
(15). Using the conceptual model again, Harl's formulation requires
Pj A, for all j and k ............. 
[where it is assumed that ljk- is equal for all producers].
Although Harl recognized the possibility of uncompensated external costs
he did not include these in his criterion for an optimal allocation.
A second major problem with the Harl recommendation is lack of
consideration for the time element (15). Even if Equation  were
satisfied initially, the resulting resource allocation would be optimal
over the life of the permit only if there is very little change. Since
the permit is awarded at one point in time for a period up to ten years
the marginal values would remain equal only if there were no changes
in water use technology or value of products produced. New higher
valued water uses would be excluded until a permit expired (14, 15).
The authors developed the fourth approach and have discussed its
features elsewhere (15). As noted in this previous article:
Under this approach, the administrative authority allows
sale of transferable "water certificates." Each certificate
represents an entitlement to a specific flow of water that
can be pumped from a particular subregion of a district, for
some particular period of time. During the time period, the
certificates would be transferable between water users under
the supervision of the water authority. At the end of the
period, the certificates would revert to the water authority
58 IRRIGATION AND DRAINAGE AND WATER RESOURCES
and could be offered for sale again (15).
The static equilibrium condition presented in Equation  can be
converted to a dynamic form:
i (1+)-t Pjt a t labt lO 
_u~ a1 ] ... 
t=l Baxljkt l '1 0
where, p = appropriate discount rate and rl0 = price per certificate
paid in t = 0, the initial time period. To establish the price at the
optimal level would require information on production and cost functions
as well as the discount rate. Practically, the authority would have to
make assumptions about the similarity of the production systems and
associated costs. The individual water user given the price per certi-
ficate would purchase certificates until net value he received from the
water associated with the last purchased certificate just equaled the
The following quotation summarizes the operation of the pseudo-
The authority would issue certificates the first year,
having varying time periods, with a maximum of T years [and
others with lesser periods]. All the rights to water avail-
able for private use in a particular area [X0, the total water
supply] would be offered for sale. To start the process, T
different types of permits would be issued, each having a
different time duration (measured in years) specified by T-l,
T-2, ... 1. The proportion to be issued for each time
duration should be 1/T. The actual amount of water repre-
sented by a certificate would be some common, known measure
xl The total number of permits available the first year
would be NT = X0/x1 .The number of certificates in each
time duration groups Nc=NT/T. The first year NT certificates
would be made available by the authority with Nc in each time
duration group. Every year thereafter, the authority could
sell approximately Nc certificates, each with an effective
life of T years. Each certificate would provide an entitlement
to a flow of water, x1 in normal hydrologic periods. In
periods of water supply shortages the entitlement xlq would
be reduced in proportion to the reduction in the overall supply,
X2. During the shortage there could be temporary transfers of
water entitlements among private users.
During the life of the certificates individuals could
buy and/or lease certificates from other individuals at any
price they could negotiate. Water users would deal with
water in much the same way they deal with other factors of
production. The going market price would reflect the initial
price the authority charged, the increased opportunity costs
for the water over time, and the remaining life of the certi-
ficates. The water authority, through observation of market
transactions, would obtain information on the change in
opportunity costs [X] for water which could be incorporated
ADMINISTRATION AND EFFICIENCY
into the price of certificates being released in that time
period. Studies on technical interdependencies among users
could give estimates of the marginal costs of use. These
too could be incorporated into the new certificate price.
Requiring Nc of the permits to expire each year also
gives flexibility to the administrative authority. In
any particular year, they could choose, for example, to
retain NR of the certificates in a particular area for
the "public interest" or some other use. The maximum
number of certificates that would be circulating in
the "market" at any point in time would be NT. The
authority could cause the number to be reduced to NT-NR
in any one year, by not reissuing NR certificates, or by
buying certificates. The authority could protect the
"public interest," then, by being an active participant
in the market as well as by retaining NR certificates in
any given year.
There are, of course, problems with this pseudo-market
approach. Selecting the time duration, T, for certificates
is especially difficult. The optimum life for certificates
will depend on the types of use and the capital investment
problems associated with these uses. Defining the avail-
able supply, X?, in a particular area is also a problem,
but one with wnich all allocative systems must deal. There
is also the problem of individuals attempting to control
large quantities of certificates and manipulate the market
to their advantage. This could be minimized by requiring
the water authority to monitor certificate transfer. Even
with these shortcomings, it is possible efficiency in use
could be improved over the current technical system (15).
Evaluation of Allocative Approaches
It is desirable to assess the performance of these approaches in
actual allocation situations. However, since all the approaches are
not generally used [or if used, are not used in regions which are
sufficiently homogeneous to allow empirical evaluation] it is not
possible to observe their performance directly.
A simulation model is being developed of a Florida river basin
[and water use therein] to provide information on allocative perfor-
mance. In essence, water supply and water demand information are
brought together in the context of an institutional model [which incor-
porates the allocative procedure]. The allocative procedure is varied
while supply and demand information are held constant. Spatial and
temporal water supply information is provided by a [validated] hydro-
logic model of a surface water system in central Florida. Demand
information is from a number of demand models developed for water uses
in Florida. These uses include'commercial, residential, and crop water
use. The actual allocation of water to the various competing uses is
determined by logic models which incorporate the essence of each of the
above described allocative approaches.
60 IRRIGATION AND DRAINAGE AND WATER RESOURCES
The evaluation of the performance of each of the alternative
methods (in our study) is relative to a datum based on the criteria
for optimal resource use, specifically (from Equation )
p yjk p m aclab(')
Pi 3-- = ; for all j and k 
alljk a-l b=l alXlk
This is the most economically efficient allocation of a limited water
supply. If society is neutral regarding the distribution of wealth and
income, this is the socially desirable mix and allocation of resources,
as noted previously. Even if distribution is not neutral [which is, we
expect, the.real world case], economic efficiency impacts should be
highlighted for any approach chosen.
The study incorporates a partial equilibrium analysis; thus, it is
assumed the consumer demand and derived demand equations for water
(ceteris paribus) reflect the value of water in these uses. Using these
demand equations to obtain an aggregate expression, and then using this
expression in conjunction with the water supply function the shadow
price i (opportunity cost) can be determined. The shadow price, in
turn, can be used with the individual demand equations to obtain the
specific quantities of water that would be allocated to various uses.
Next, the shadow price and the demand relationships are used to calcu-
late the economic rents accruing to producers and the consumer's sur-
plus accruing to residential users of water. Mathematically, using
expression , the economic rent accruing to producer k [ceteris
paribus] for product j is
jk yjk p m 3lab()
P Z lab ] dxljk . .[91
j axljk a=l b=l Cxljk
where x jk is the quantity of water allocated to producer k for product
j that corresponds to the shadow price X. Consumer's surplus could be
represented similarly. The sum of the economic rents and consumer sur-
pluses associated with the conditions in the study region provides the
datum level of benefits. The greatest efficiency levels will be ob-
tained where benefits are the largest. The benefit levels accruing
under the alternative approaches can then be compared.5
The water supply model is an integral model of the Kissimmee River
Basin developed in conjunction with the staff of the South Florida Water
Management District, the District in which the basin lies. Characteris-
tics of the natural hydrology and the existing water management facili-
ties, were modeled. The river basin system is comprised of fourteen
5This is a very brief explanation of a very involved (both conceptually
and computationally) procedure. For a more detailed discussion of the
ADMINISTRATION AND EFFICIENCY
watersheds, seven lakes, nine control structures and thirteen canals,
and is managed with multiple objectives in mind. Generally, the model
takes rainfall information on a short term basis [12 minute intervals],
calculates surface runoff into the lakes [3 hour intervals] and oper-
ates the system of control structures [3 hour intervals]. Given the
flow of water into and out of the lakes, the volume of water in the lake
can be determined. The volume of water in the lakes along with the
overall operating policy provides the information needed to specify the
quantity of water available for consumptive uses. The quantity of
water acts as the upper limit on the supply available to water users.
The marginal cost of pumping and moving water to the use site will also
be considered in the study. [For a more detailed description of the
supply model see (13, 21)].
The study region consists of both urban and rural areas, and has
both public and private uses of water. Public uses include use of the
lakes for flood control and water based recreation. Management of the
system for these activities are included in the water supply model.
Essentially, maximum and minimum lake levels are specified and these
act as constraints on the availability of water for consumptive uses
by individuals (13, 21).
The private activities [for which economic demand is considered,
and which are dealt with in the study] are citrus irrigation, commer-
cial and business use, and residential use. Water for irrigation is
removed from the lakes and canals by individual farmers under the
authority of the District. Demand functions for citrus irrigation
water are being developed. The demand for commercial water is also a
derived demand based on the demand for the products sold or the ser-
vices provided. The functions used are from Lynne, Luppold and Kiker
(17) and are varied in type due to the number of types of commercial
businesses involved. The businesses include food stores, department
stores, motels and a number of other establishments. Residential de-
mand for water is based on consumers' use of water in and about the
home. The functions used are from Andrew and Gibbs (2) and include
income and water price as economic variables influencing the consumer's
use of water.
In the evaluation of a specific allocation approach, the institu-
tional model is ordered to perform the logic of the allocation proce-
dure and merged with the supply and demand model. Basic input data
consists of: (a) rainfall records for a given period of time,
various parameters describing the hydrologic system, and the costs of
water supply, and (b) prices, costs and incomes for the same time
period along with various parameters describing the economic structure
of demand. The models operate interactively over the time period. The
output provides information on (a) the quantity of water actually avail-
able for use, (b) the quantities demanded and the quantities actually
footnote 5 continued.
rational behind adding rents and surplus, see Mishan (20).
62 IRRIGATION AND DRAINAGE AND WATER RESOURCES
allocated to the various uses, (c) the economic rents and consumer
surplus accruing to the users and (d) the summation of the rents and
surplus which specifies the overall benefit level resulting from the
allocative approach. The resulting benefit level can then be con-
trasted with the datum benefit level determined under the same supply
and demand conditions but using the optimal allocation criteria.
Management rules and decisions do affect people and water managers
[policy-makers] should understand the manner in which this occurs.
Several alternative approaches to assigning water entitlements are
feasible under eastern water law and these have different economic im-
pacts on water users. There is no way for water managers to know what
the magnitude of these impacts are without analysis.
By considering water supply, demand and institutions interactively,
information on the effects of alternative allocation policies can be
generated. Aggregate net benefits accruing under alternative allocation
approaches can be determined, and the degree of economic efficiency of
each approach contrasted by comparing the net benefit levels. Although
the major emphasis in the discussion was on economic efficiency, the
methodology can be used to assess distribution of benefits among water
users. Water managers realize there are trade-offs between economic
efficiency, distribution of benefits and the ease of implementing an
allocation approach. Breaking-out the benefits accruing to different
water users is of help to the water managers. And of course, this type
of information is also of interest to the water users, since they are
the ones ultimately affected by the water managers decisions.
1. Anderson, R. L., "The irrigation water rental market: A case
study," Agricultural Economics Research, Apr. 1961, pp. 54-58.
2. Andrew, D. R. and K. C. Gibbs, "An Analysis of the Effects of Price
on Residential Water Demand: Metropolitan Miami, Florida,"
Southern Journal of Agricultural Economics, Vol. 7, 1975, PP.
3. Bain, J. S., R. E. Caves and J. Margolis, Northern California Water
Industry, The Johns Hopkins Press, Baltimore, 1966.
4. Eckstein, Otto, Water Resources Development, Harvard University
Press, Cambridge, Mass, 1958.
5. Ferguson, C. E., The Neoclassical Theory of Production and Distri-
bution, Cambridge University Press, Cambridge, 1969.
6. Florida Water Resources Acts of 1972, Florida Statutes 373.013,
et seq., 1972.
7. Harl, N. D., R. A. Baldwin and D. W. Hubly, "An Analysis of the
Economic Implications of the Permit System of Water Allocation,"
ADMINISTRATION AND EFFICIENCY
Iowa State Water Resources Research Institute report, ISWRRI-43,
8. Hartman, L. M. and D. Seastone, Water Transfers, The Johns Hopkins
Press, Baltimore, 1970.
9. Hines, N. W., "A Decade of Experience under the Iowa Water Permit
System--parts 1 and 2," Natural Resources Journal, Vol. 7, pp.
499-554 and Vol. 8, pp. 23-71, 1967 and 1968.
10. Hutchins, Wells A., "Groundwater Legislation," In: S. C. Smith
and E. N. Castle, (eds.) Economics and Public Policy in Water
Resource Development, Iowa State University Press, Ames, 1964.
11. Hutchins, Wells A., "Water Rights in the Nineteen Western States,"
Vols. 1 and 2, Misc. Pub. No. 1206, Economic Research Service,
U.S.D.A., Washington, D. C., 1971.
12. Kiker, C. F., "Public and private rights related to water use,"
In: M. C. Blount (ed.) Water Resources: Utilization and
Conservation in the Environment, Fort Valley State College,
Fort Valley, Georgia, 1975.
13. Kiker, C. F., "River Basin simulation: an interactive engineering-
economic approach to operational policy evaluation," Southern
Journal of Agricultural Economics, Vol. 9, 1977, pp. 57-66.
14. Kiker, C. F. and G. D. Lynne, "Water allocation under administra-
tive regulation: Some economic considerations," Southern
Journal of Agricultural Economics, Vol. 8, 1976, pp. 57-63.
15. Kiker, C. F. and G. D. Lynne, "Economic Impacts of Administrative
Water Law Systems," Transactions of the ASAE, forthcoming.
16. Lynne, G. D. and K. C. Gibbs, "Demand and Pricing Policy for
Residential Water," Food and Resource Economics Department,
Economic Report 83, Institute of Food and Agricultural Sciences,
University of Florida, Gainesville, 1976.
17. Lynne, G. D., W. G. Luppold and C. F. Kiker, "Water price respon-
siveness of commercial establishments," Water Resources Bulle-
tin, Vol. 14, June 1978, pp. 719-729.
18. Maloney, F. E., R. C. Ausness and J. S. Morris, A Model Water Code
University of Florida Press, Gainesville, 1972.
19. Maloney, F. E., S. J. Plager and F. N. Baldwin, Water Law and
Administration, University of Florida Press, Gainesville, 1968.
20. Mishan, E. J., Cost-Benefit Analysis,'Praeger Publishers, New York,
21. Reynolds, J. E., J. R. Conner, K. C. Gibbs and C. F. Kiker, "Water
allocation models based on an analysis for the Kissimmee River
64 IRRIGATION AND DRAINAGE AND WATER RESOURCES
Basin," Florida Water Resources Research Center Publication
No. 26, Gainesville, 1973.
22. Smith, Stephen C., "Problems in the use of the public district
for groundwater management," Land Economics, Vol. 3, No. 2,
1956, pp. 259-269.
23. Trelease, F. J., "The model water code, the wise administrator
and the goddam bureaucrat," Natural Resources Journal, Vol. 14,
1974, pp. 207-229.
24. Wadley, J. B., "A summary guide to Florida's water rights,"
Extension Service Circular 412, Institute of Food and Agricul-
tural Sciences, University of Florida, Gainesville, 1976.
SOCIAL ASPECTS OF FLOOD PROOFING
By James R. Dexter,' Gene E. Willeke,2 and
L. Douglas James,3 Members, ASCE
The literature on flood proofing provides many good ideas on how to
adjust the contents or structures of flood prone buildings in order to
reduce flood damage. Some information is given on the cost of those
adjustments. Relatively little, however, has been published on how
flood plain occupants view the acceptability of flood proofing alterna-
tives, what factors lead them to adopt the measures they choose, how
effective users find their choices when the next flood occurs, and how
planners might use such information for promoting more effective flood
This paper reports on research (1) undertaken to collect information
on flood proofing experiences and to analyze the findings in order to
recommend ways in which engineers or planners can more effectively en-
courage appropriate flood proofing. The information showed that social
diffusion of flood proofing ideas often takes place in flood-threatened
residential neighborhoods, that residents make sophisticated adjust-
ments (privately financed) under certain conditions and experience fa-
vorable as well as unintended, sometimes unfavorable, effects and that
the engineer can play an important role in reducing unintended adverse
effects. The paper concludes by pointing out social implications and
RANGE OF ADJUSTMENTS IN ATLANTA AND CHARLOTTE
A canvass was made of the Corps of Engineers offices in the South
Atlantic Division and of the Tennessee Valley Authority to identify ur-
ban regions where flood proofing had been adopted in the southeastern
United States. Atlanta, Georgia, and Charlotte, North Carolina, were
selected for study as having the most cases where flood proofing was
Local officials and members of the faculty of the Georgia Institute
of Technology and the University of North Carolina-Charlotte identified
'Planning Branch, Pacific Ocean Div., U. S. Army Corps of Engineers,
Fort Shafter, Hawaii.
2Director, Institute of Environmental Sciences, Miami University,
3Director, Utah Water Research Laboratories, Utah State Univ., Logan,
66 IRRIGATION AND DRAINAGE AND WATER RESOURCES
flood plains with flood proofing examples. In subsequent windshield
and walking surveys in Atlanta and Charlotte, many more residents who
had made such structural modifications to their property as house rais-
ing, walls or levees, and water proofing with flood shields were found.
Flood hazard studies by the U. S. Geological Survey or the U. S. Army
Corps of Engineers were used to determine which flood-proofed houses
were within the limits of a 100-year flpod and which houses in the iden-
tified flood plain had been flooded. In Atlanta, 617 of approximately
1118 houses (55%) in the 100-year flood plain had been flooded; in Char-
lotte, the number was 195 of 687 (28%).
A questionnaire was devised to collect the desired information from a
sample of flood plain residents. It was administered by telephone in-
terview. The population sampled in each city encompassed all single-
family residential units that had been flooded. Each population was
stratified into two groups. One contained all houses displaying evi-
dence of external structural modifications (e.g., walls, levees, eleva-
tion). An attempt was made to sample each element of this stratum. The
houses that did not appear to be flood proofed constituted the second
stratum. A random sample of these houses was taken.
The most common type of residence was a single story structure with a
basement or crawl-space foundation. The depth of the worst flood expe-
rienced was seldom more than two feet above the main floor. The re-
spondents were typically middle to upper income. Most residential prop-
erty values in the flood plains along the streams identified for this
study were at or above average for the two cities.
The number of residents in each stratum and the weighted averages in
each of five adjustment categories are shown in Table 1. The categories
are described in more detail in Figure 1. Some people did no more than
clean up and bear the loss; others had never been flooded and saw no
need to flood proof. These cases were classified as having no plan for
managing losses. Of those interviewed, 13% in Atlanta and 22% in Char-
lotte said they had never been flooded and did not think they would be
in the future.
People reporting serious flooding had a wider perception of adjust-
ment. In Charlotte, 15%, and in Atlanta, 20% of those who had experi-
enced flooding above the first floor perceived some type of adjustment
to make on their own.
Financial adjustments were generally perceived by fewer people than
were flood-proofing adjustments. Among flood-proofing measures, emer-
gency and use adjustments received less consideration than did structur-
al modifications or internal adjustments.
Respondents who used structural modifications felt most successful in
handling floods; 86% in Atlanta and 84% in Charlotte of those using
structural modifications said they had been somewhat or very successful
in preventing losses. In comparison, 44% and 50% of emergency adjusters
in Atlanta and Charlotte, respectively, felt somewhat or very success-
ful. Only 23% of the internal adjusters in Atlanta felt somewhat or
Table 1. Adjustments to Flood Hazard Reported by Surveyed Residents
Structural Modifications 13% 11%
Internal Adjustments 26 0
Emergency Adjustments 14 9
Financial Adjustments 14 14
No Adjustment 33% 66%
Number in Sample
Stratum I--known structural modifications
Stratum 2--all other residential units in
Table 3. Standardized Discriminant Coefficients for Categorizing Flood
Variable Function 1 Function 2 Function 1 Function 2
Number of house floods -.40 .05 .69 .24
Number of yard floods .11 .16 .28 -.05
Length of residence -.19 .03 .28 -.06
Depth of flooding -.35 .74 .29 .58
Damage from worst
flood -.16 .32 .25 -.06
Amount of warning time -.05 -.62 .74 .02
Rank of damage and
repair cost -.45 -.26 .41 -.24
Rank of cleanup nuisance -.99 -.19 .15 -.40
Rank of time lost at
work -.26 .05 -.11 .20
Rank of personal
safety -.17 -.16 .15 .17
Rank of erosion and
sediment damage -.32 -.40 .33 .31
Rank of loss of property
value -.74 -.57 .31 -.39
Rank of health hazard -.39 -.22 -.42 -1.06
Rank of other concern -.18 .05 .63 .10
IRRIGATION AND DRAINAGE AND WATER RESOURCES
l-- OTHER TYPE
PROPERTY TAX CUT
NOT USING AREAS
WALL a DIKE
BARRIER 0 SEALS
Figure 1. Range of Adjustments Reported In Sample Areas
EXPRESSED AS % OF TOTAL SAMPLE
. a l
The high percentages of structural adjusters who were satisfied may be
explained by the complete elimination of flood damages by these measures
during subsequent floods experienced in the area. Since the other ad-
justments allow (indeed plan) for inundation of the house, such undesir-
able effects as cleaning up the mud and debris remain.
The relatively high percentage of the financial adjusters in Charlotte
(80%) who felt somewhat successful may be explained as being people who
felt secure in the belief that they would be reimbursed for damages and
not "lose" their possessions. Flood insurance was not nearly so well
regarded in Atlanta. The high percentage of those without a damage re-
duction plan in Charlotte who felt somewhat successful may be explained
by the many in this category who had not been flooded (or received only
minor property damage) and thus felt their nonaction was appropriate for
their low hazard situation.
In a few instances, poor construction or inadequate preparation for
events when the design flood level would be exceeded led to unintended
adverse effects. For example, one individual's flood wall burst after
water reached the top. Flood proofers were frequently found not to an-
ticipate the possibility of floods higher than historical ones, and few
designed spillway areas for walls or provided levees with weak spots to
limit damages in the event of failure.
VARIABLES ASSOCIATED WITH FLOOD-PROOFING ADOPTION
Two separate approaches were used to identify those variables associ-
ated with the adoption of flood-proofing. Contingency table analysis,
one variable at a time, was used along with discriminant analysis of
several variables simultaneously. Contingency table analysis allows
consideration of variables of all kinds, whether they meet the criteria
for nominal, ordinal, interval or ratio scales. Discriminant analysis,
on the other hand, allows for the simultaneous examination of the inte-
grated effect of several variables measured to at least ordinal scales.
Contingency Table Analysis.--The more important associations are shown
in Table 2. Significance was tested by both the X2 and X tests. In
general, a x2 level of .05 would be regarded as significant. Lambda is
a measure of association for cross tabulations based on nominal-level
variables. The maximum value of lambda is 1.0.
Discriminant Analysis.--A three-group discriminant analysis of the re-
sponses in the two samples (Atlanta and Charlotte) was performed on the
unweighted responses to identify variables associated with aspects of
the hazard that led people to flood proof (2). The three groups into
which the sample was categorized were: 1) flood proofers, 2) financial
adjuster, and 3) those who did neither (Figure 1).
Discriminant analysis derives functions to identify variables for dis-
criminating among groups. The goal in this application was thus to se-
lect variables that could be used to best predict whether or not a par-
ticular individual would flood proof. For functions in standardized
form, Table 3, the following interpretations (2) may be made:
70 IRRIGATION AND DRAINAGE AND WATER RESOURCES
Table 2. Associations between Adjustment Categories and Decision-
Variable Trend X2 Test x Test
Damage in dollars Adopters have more damage .01
Depth in house Adopters have greater depth .01
Type of damage Adopters more likely to have .01
content damage and erosion .01
Recency of worst Adopters have experienced .01
flood floods more recently .025
Number of Adopters have more house .01
house floods floods .01
Number of yard Adopters have more yard floods .01
Number of floods/ Adopters have higher .01
length residence frequency .01
Flood heights Adopters somewhat more inclined .01
increasing to believe increasing NS
Urbanization Adopters believe more in urbani- .01
zation of cause of floods .01
Damage cleanup Adopters more concerned .01
Property value loss Financial adjusters more .01
and health hazard concerned .01
Obtained flood Adopters more likely to have .01
hazard information seen flood-plain reports .01
Interest in Adopters less likely to want .01
flood-plain maps flood-plain maps .15
Talked to neighbors Adopters more likely to have .01
about floods talked to neighbors NS
Interest in engin- Adopters and financial .01
eering assistance adjusters more interested .10
Knowledge of hazard Adopters tend to have more .01
before moving knowledge .01
Table 2 count. )
Variable Trend x2 Test x Test
Willingness to Adooters -mre willing .01 .07
get facts .05 NS
Assign solution Adopters tend to disbelieve .10 .02
to higher power government solving problem NS NS
Belief in knowable Adopters believe more in .01 .004
Sistern to flood
hazard topattern to flooding #NS NS
Number of adjust- Adopters use wider range of .01 .85
ments used adjustment .01 .66
Willingness to No significant difference be- NS .36
remain in hazard tween adjustment categories NS NS
Success of Structural modifiers are more .01 .11
adjustment likely to report success .01 .28
Prevent damage Those having success more .01 .26
likely to prevent damage .01 .28
Recoerend ideas Adopters mqre likely to reco-- .01 .01
to neighbors mend their.:deas .10 .05
1s a correlation measure with a max.um value of 1.0.,
Top number In eacn group is for Atlanta sample, bottom Is for Charlotte
NS means eot significant.
72 IRRIGATION AND DRAINAGE AND WATER RESOURCES
1) The larger the value of the coefficient for a particular variable,
the better the variable is for discriminating among individuals;
2) The sign indicates whether the individual is more likely (positive
sign) or less likely (negative sign) to belong to the group depending
upon that variable.
For Atlanta and Charlotte, two functions each were developed to dis-
criminate among the three adjustment groups (Table 3). Fourteen vari-
ables were used. Since each community was treated independently, vari-
ables found to discriminate better in one case did not necessarily work
better in the other. The following system was used to rank the variables
1) Each variable (separately for the two cities) was assigned a rank
number according to the relative size of its coefficient among the co-
efficients in that function (a lower rank number indicates more import-
2) The rank numbers from both samples were summed to obtain a score
for each function.
The first function distinguishes flood proofers from people who have
no plan. For this separation, the variables, in order of decreasing
ability to discriminate, are: number of house floods, concern about
damage and repair cost, concern about property value, concern about
health hazard, and concern about erosion and sediment damage.
For function two, which distinguishes flood proofers from financial ad-
justers, the results were less consistent between the two cities. The
order of the most important discriminating variables is depth of flood-
ing, concern about loss of property value, concern about health hazard,
and concern about erosion and sediment damage.
A negative sign for function one coefficients and a positive sign for
function two favors classifying the individual as a flood proofer in
Atlanta. For Charlotte, positive function one coefficients are favored
for identifying flood proofers. Negative function two coefficients are
favored in both samples for identifying financial adjusters.
Hazard Assessment.--The power of the two discriminant functions to
distinguish whether a given individual will flood proof, make a finan-
cial adjustment, or have no plan can be displayed graphically by calcu-
lating a discriminant score for each individual sampled for each factor
and plotting the results as shown on Figures 2 and 3. Each score is
the sum of the products of the coefficient for the variable and a nu-
merical indication of how that person responded to the questionnaire on
that variable. Each point is plotted with a number according to whether
that person: 1) flood proofed, 2) made financial adjustments, or 3) had
The centroids of all l's, 2's, and 3's were then computed and plotted,
and the total area was divided according to the assumption that the best
prediction for any person with a known score would be based on the near-
est centroid. The number of people of known response plotting nearer to
o S -t *0
"441 l s W
0 I 0.
DISCRIMINANT FUNCTION I SCORI
Figure 2. Discriminant Function Score Map of
Flood-Proofing Adoption in Atlanta
74 IRRIGATION AND DRAINAGE AND WATER RESOURCES
(f YB (M
DISCRIMINANT FUNCTION 2 SCORE
Figure 3. Discriminant Function Score Map of
Flood-Proofing Adoption in Charlotte
0 I -
some other centroid (15% for both Atlanta and Charlotte) provides some
indication of the power of the discrimination. The boundaries thus sub-
divide the'prediction space in a way that can be used to predict how an
individual will adjust to flood hazard in about 85% of the cases.
Additional variables contributed to understanding why some but not
others adopted flood proofing, but were not included in the discriminant
analysis because the ways in which they were measured did not provide
data amenable to this procedure. For example, flood proofers believed
flooding would occur in the future and were somewhat more inclined to
believe it would result in higher stages. They also generally believed
urbanization to be a principal cause of flooding, attached a pattern to
the flooding they experienced, had little faith that government would
solve the problem, and felt a need to act to control their fate. The
latter feeling led to their greater than average interest in obtaining
facts on damage reduction and knowledge of flood hazards before occupy-
ing their homes.
Adjustment Search and Assessment.--People who adopt flood proofing are
most like to develop their plan by talking to neighbors and observing
their adjustments. Others reason out a plan on their own. Very few
turn to public agencies, professional engineers, or landscape architects
In neighborhoods where adjustments are readily observed, flood proof-
ing is diffused faster if residents have the ability and inclination to
act. Residents suffering severe flooding would prefer to sell their
houses but do what they can on their own to reduce damages. Residents
with building skills or access to construction equipment and materials
used them to flood proof.
Adjustment Selection as Staged Process.--Most individuals tried one
idea and then another, until something worked. This typical adjustment
process, however, resulted in a less than optimal implementation strate-
gy. For example, some residents had shields behind flood walls and al-
so internal adjustments when a better conceived system would have been
simpler. Other residents selected key design parameters, like the
height of a flood wall, from very limited information, e.g., the high-
est flood they could remember. Certainly, trial and error design by
poorly informed people is less efficient than a plan carefully reasoned
from sound information. Further study needs to be given to how to im-
prove this situation by building a cadre of trained professionals who
can provide sound advice, by putting flood plain occupants in contact
with these professionals, and by promoting the program by the only real-
ly successful method, consistent delivery of sound advice.
Several factors prompted residents to select their preferred adjust-
ment. Low initial cost (where building materials were available at
little or no cost or work could be done by the resident) was the note-
worthy reason why walls, shields, or internal adjustments were made.
House raising was believed to improve property value. Insurance re-
duced the financial risk. As negative factors, some people suspected
walls br shields would be ineffective or have adverse effects on neigh-
bors. Sometimes government zoning regulations interfered with flood
76 IRRIGATION AND DRAINAGE AND WATER RESOURCES
Adjustments of the use of space in a house and emergency activities
were readily trialable. For example, contents are easily moved on a
seasonal or emergency basis. Since most residents experienced a flood
and then planned adjustments, content rearrangement was initially used
by many individuals until other ideas were sought and tried.
APPLICABLE CONCEPTS FROM INNOVATION DIFFUSION RESEARCH
Several principles of innovation diffusion (3) seem useful in organiz-
ing an effective flood proofing diffusion process. The effort should
build on attributes of the innovation which encourage innovation, such
as relative advantage, compatibility, trialability, simplicity, and ob-
servability. Communication processes and attributes of the potential
adopter are also important. Survey respondents reported that raising
flood-prone houses would increase their market value (relative advan-
tage and observability), that the availability of free building materi-
als or labor facilitated adoption (relative advantage), and that simple
adjustments were regarded favorably if they were easy to accomplish,
made sense, and provided immediate rewards, e.g., raising an outdoor
air conditioning unit (relative advantage, reliability and simplicity).
One interesting finding relative to compatibility of adjustments with-
in social groups was seen among those who thought of building a wall or
levee. In Atlanta, over 30%, and in Charlotte, over 78% of those con-
templating (but not completing) such an adjustment cited concern about
effects on neighbors. Thus, social sanction is sometimes necessary be-
fore people will implement this adjustment.
Adopters of structural modifications and financial adjustments were
often responding to the example or advice of neighbors. As illustra-
tions of such transfer, structural modifications to the exterior of
houses were visible observabilityy) rather than internal adjustments
The concept of financial adjustment by seeking and receiving flood-
related property tax reductions was relatively easier to communicate to
neighbors. In contrast, residents without plans for damage reduction
were less aware of what others were doing.
The rate of adoption is greater during the first three or four years
after recognition of the flood problem. Moreover, adjustments made by
taking simple actions, viz., moving contents during floods, internal ad-
justments and financial measures, were more easily tried than construc-
Most people got ideas from others but developed their own plan. Ideas
were often generated because early adopters provided a demonstration.
Several locations were found where a certain type of adjustment, such as
house raising or wall building, spread along a street or between streets.
Users communicated to others such information as relative success, sat-
isfaction with a contractor, cost, and how to deal with building codes.
Structural modifications generally diffused faster than did less visible
A number of social factors were found to be associated with adoption
decisions. In Charlotte, greater belief that government was solving
the problem tended to reduce the amount of flood adjustment. Other
people felt it was inappropriate for untrained individuals to act on
their own, reasoning their efforts would be futile without more knowl-
edge of the flood forces involved or because they believed only large
scale channel or levee projects would work. Still others were upset
that government officials did not act to relieve their plight. It
seemed to some people that their standing in the community was being
made subordinate to the desires of developers wishing to pave upstream
land or encroach onto flood plains.
Most adopters felt it was worthwhile for the individual to do what-
ever would reduce damage and used their own resources and skills to de-
velop a flood-proofing plan. People with access to low cost building
materials or equipment made use of it. Homeowners with large lots used
portions as borrow areas for levees and terraces. Often people (or
their friends) had occupational experience which enabled them to oper-
ate equipment or build structures.
SOCIAL AND LEGAL CONSTRAINTS TO FLOOD PROOFING
The results reported above show that:
1. Flood plain residents make adjustments on their own under certain
2. Those adjustments lead to favorable effects; the more complete
the package, the greater the success accorded to the adjustment;
3 Unintended effects, particularly those accompanying structural
failures, occur; and
4. Concepts from the literature on the adoption of innovations seem
useful for categorizing and explaining the social factors influencing
What then can be learned from the Atlanta and Charlotte experiences
that will improve flood plain management practice, and what areas of
research are needed to resolve outstanding issues? First, the level of
social acceptability flood-proofing has already achieved reinforces the
need to consider it in the set of alternatives for flood plain manage-
ment. Major advantages include an ability to use skills available to
many homeowners, compatibility with the urban environment (fewer envi-
ronmental costs), and flexibility (measures can be fine-tuned at each
location according to each resident's problem and preference). For
small drainage basins or low density development, public works like
channelization or dams may not be as easily implemented or economical.
The finding that the greatest rate of adoption occurs for homeowners
made aware of the hazard within 3 to 4 years of residence has an impli-
cation for marketing flood proofing. Given frequent flooding, resi-
dents who have lived in a community long enough to understand its prob-
lems but not so long as to become complacent about them are more in-
clined to incorporate flood proofing in a remodeling plan, have suffi-
cient tenure to know whether they like the neighborhood well enough to
endure periodic flooding, and probably have witnessed the successes and
failures of neighbors' attempts to reduce flood damage. Limited
78 IRRIGATION AND DRAINAGE AND WATER RESOURCES
resources for promoting flood proofing can effectively be concentrated
on such residents. It may be easier to persuade hedging homeowners if
other neighbors have been successful.
A third implication is that a well-planned program of technology
transfer would go a long way to achieve more widespread flood proofing
and to selection of more effective designs. A prototype program, based
on the Atlanta and Charlotte experiences, is shown in Table 4. The
program includes the communication process, the development of informa-
tion materials, the delivery of technical assistance, and ways to fa-
cilitate the actual construction or implementation process.
The main feature of this program is flexibility. The planner can
choose from among the options according to the degree of public imple-
mentation that is warranted. Reliance on private means of implementa-
tion has the advantages of:
1. Quick and inexpensive implementation by avoiding the red tape of
public decision making and financing;
2. Decision making on whether benefits justify the cost by people
who pay the cost in expectation of realizing the benefits; and
3. Freedom provided each flood plain dweller to develop a flood
proofing program best suited to his degree of risk aversion, financial
resources, and esthetic preferences.
1. Risky design criteria from the professional viewpoint;
2. The potential for severe loss, even loss of life, by people who
fail to realize what might happen during a flood more severe than they
considered in their design; and
3. A potentially low rate of adoption and hence more residual flood
damages within the community.
Legal Constraints to Flood Proofing.--Several legal and institutional
problems constrain public flood proofing programs. Many public offi-
cials question whether public assistance is appropriate for the private
homeowner. Public works projects (channels and dams) provide diffuse
benefits. Improvements made to specific private property, to achieve
similar prevention, cause concern over legal propriety. In Atlanta,
local officials had refused to sponsor a flood proofing project pro-
posed by the Corps of Engineers as of summer 1977 because they main-
tained that improving private property with public funds is illegal.
Consulting engineers and architects asked to assist in flood proofing
design worry about exposing themselves to liability suits should flood-
ing exceed design levels or failure occur because of inadequate main-
tenance. Judging from an economic analysis by Dexter (1), the optimum
flood proofing design frequency is usually less than the 100-year event
for Atlanta and Charlotte. If a rare flood (some suggest Standard
Project Flood level) is used as a flood proofing design criterion, the
Table 4. Recommended Options to Promote Flood Proofing
Finding potential flood proofers 1) advertise
2) meet with neighborhood associations
Providing information to help resi- 1) field evaluation service for homeowner
dent decide on a flood-proofing plan 2) approximate analytical evaluation for homeowner (flood-proofing
Providing an understanding of flood 1) improved flood hazard data (high frequency and more intelligible
hazard to layman)
2) messages that motivate residents because of their graphic effect
Getting the neighborhood to spread 1) use case history testimonials
flood proofing 2) establish neighborhood demonstration projects where readily ob-
Improving flood warning response 1) self-help forecasts
2) automated warning devices
Supporting efforts to keep flood 1) field inspection after floods
proofing active 2) flood-proofing certification as part of building or zoning codes
3) guarantee for remedial work
Helping residents obtain flood 1) flood proofing referral service by civic association
proofing 2) referral service by local government
3) organizing a design referral service by technical and profes-
Providing public subsidy to help 1) direct subsidy of money, materials, or labor
people flood proof 2) tax reduction
3) engineering assistance
80 IRRIGATION AND DRAINAGE AND WATER RESOURCES
overdesign is likely to be both economically and financially infeasible,
the plan may not be implemented, and no one benefits.
The interview indicated that people are generally less concerned with
economic efficiency (which few people understand) than they are with
their ability to finance a project. Many others are reluctant to pay
in a situation where they blame upstream development for their flood
For certain types of flood proofing to be effective, the flood plain
occupant must be present at the time of the flood and be able to take
necessary action. Flood gates have to be properly closed and sealed.
Pumps must be maintained and perhaps started. Flood proofing design
needs to consider the capability of flood plain occupants to perform
needed maintenance and operation as well as the consequences of not do-
Finally, public officials worry over how well second and third owners
of flood proofed property will take advantage of their protection. For
example, 14% of those with shields in Atlanta reported the flood proof-
ing was there when they moved in. Some were unaware of the flood
hazard, untrained as to what needed to be done, and unprepared to oper-
ate their adjustments.
Research is needed to determine how much these legal concerns con-
strain the activity of public agencies in implementation of flood proof-
ing in an overall flood plain management program. The appropriate level
of public activity probably varies with the situation, and general legal
guidance and suggestions for reducing legal entanglements would be wel-
comed by the engineering community.
The research work presented in this paper has been financially sup-
ported, in part, by the U. S. Army Corps of Engineers' Institute for
1. Dexter, James R., 1977. Planning a Program for Flood-Proofing
Technology Transfer to Flood-Plain Residents. Atlanta: Thesis
presented to the Georgia Institute of Technology.
2. Nie, Norman, C. H. Hull, J. G. Jenkins, K. Steinbrenner, D. H.
Bent, 1975. Statistical Package for the Social Sciences. New
York: McGraw Hill.
3. Rogers, Everett M., with F. Floyd Shoemaker, 1971. Communication
of Innovations. New York: The Free Press.