Title: Water Law, Policy and The Federal Government
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Permanent Link: http://ufdc.ufl.edu/WL00003038/00001
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Title: Water Law, Policy and The Federal Government
Physical Description: Book
Language: English
Publisher: American Society of Civil Engineers
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Water Law, Policy and The Federal Government
General Note: Box 12, Folder 6 ( Legal, Institutional and Social Aspects of Irrigation and Drainage and Water Resources Planning and Management - 1979 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003038
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
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Full Text


Daniel J. Snyder* III

The federal government affects water law policy
through a variety of vehicles. Prior to the 1970's, the
federal government concentrated on the development and
management of water resources. Federal water projects pro-
vided the necessary inter-structure for agricultural ex-
pansion and the development of many areas in the Far West
and Rocky Mountain Region. Efforts to deal with water
pollution in industrial areas and with the quality of human
drinking water were sporadic and uncoordinated. These
areas were viewed as areas of primary responsibility for
state and local units of government.

The dawning of the environmental era with the
mass public demonstration on Earth Day caused a re-evalua-
tion of this federal laise faire approach. This re-evalua-
tion resulted immediately in an increased flow of money
for public water pollution control projects and the develop-
ment of the Federal Water Pollution Control Act which was
passed in October of 1972. This Act was followed by the
passage of the Safe Drinking Water Act, the Resource Con-
servation and Recovery Act, and a comprehensive rewrite of
the Federal Water Pollution Control Act called the Clean
Water Act of 1977. This paper will explore the scheme of
environmental regulation established by this legislation
and raise a number of questions concerning the future
thrust of federal activity.

The Federal Water Pollution Control Act of 1972

This Act established a permanent program to
regulate industrial discharges. Within five years every
industrial discharger had to meet effluent guidelines es-
tablished for its particular industrial class. In those
areas where states had previously promulgated more strin-
gent stream standards, these water quality standards be-
came the basic cleanup requirement.

The Act also created a municipal waste water
treatment grants program providing 75% federal funding

Dechert Price & Rhoads
3400 Centre Square West
1500 Market Street
Philadelphia, Pa. 19102


for the construction of sewage treatment plants and inter-
ceptors. This program has reached an annual spending level
of $5 billion per year making it the largest public works
grants program now being operated by the federal govern-

Industrial and municipal waste water treatment
goals were to be tied together with the control of non-
point sources of pollution through the 208 areawide waste
water management planning process. Unfortunately, EPA did
not begin to implement this planning provision until 1974.
By this time, the waste water treatment grants process was
in full swing. Many 208 plans are now going through the
final approval process. This means that many billions of
dollars will be spent by municipalities, industry and the
federal government before any rational long-range planning
process is in place.

Quite a number of flaws have already become ap-
parent in the regulatory and grant-making structure created
by P.L. 92-500. In particular, the General Accounting Of-
fice has been most critical of EPA decisions to continue
funding expensive advanced waste treatment plants. As you
well know, these plants provide a high quality effluent
but at an even higher cost in energy and chemicals.

One example of this whole situation carried to
an absurd extent was the plan of the Washington Suburban
Sanitary Commission to construct a 60 million gallon per
day advanced waste treatment plant at Dickorson above the
water supply intakes for the metropolitan Washington, D.C.
area. Because the sewage would have had to be pumped up-
hill from its point of generation some 25 miles away and
then treated to almost drinking water purity, the 20 year
useful life cost of this plant was estimated at $450 mil-
lion. Another alternative which would have required a
lower level of treatment because the point of discharge
would have'been into the lower Potomac was rejected for
political reasons. The cost of this political choice to
the American public would have been $200 million. Fortu-
nately EPA decided not to fund this white elephant.

The GAO study points out many other serious
problems in EPA's sewage treatment grants program. Not
enough consideration is given to alternative treatment
systems which use land as the treatment media. Land
treatment systemsrestore valuable ground water rather than
transporting water from basin to basin through huge inter-
ceptor lines. Even with the shift in EPA policy toward
alternative systems urged by the 1977 Act and Administrator
Costle, the Agency has had a very difficult time getting
state waste water treatment engineers and the consulting
community to buy this approach..


An additional problem with advanced waste water
treatment systermsis the disposal of sludge. It took EPA a
long time to recognize the basic law of conservation of
matter -- increased water cleanup means increased sludge.
At least in the metro D.C. area sludge disposal represents
a major source of employment for attorneys and the oppor-
tunity for high level negotiations among federal, state and
local officials. The Blue Plains Sewage plant which pro-
vides 309 mgd's of treatment capacity is still not operat-
ing up to standards because of sludge removal difficulties.

In addition to the problems in the waste water
treatment grants program, the planning and nonpoint source
pollution control portions of P.L. 92-500 have not been
effectively implemented. Entirely too much of the 208
areawide waste water management planning money has been
spent in large metropolitan areas subsidizing metropolitan
planning agency overhead. Very little innovative work has
actually been done on nonpoint source problems. It is
interesting to note that a preliminary study in the Wash-
ington, D.C. area found that over half of the loading into
the Potomac River was from urban runoff and other nonpoint
sources. Waste water management planners are still con-
centrating on designing AWT plants which provide 95%
removal. A more balanced and cost effective approach would
suggest lower levels of waste water treatment efficiency
coupled with aggressive efforts to control urban runoff
and other nonpoint sources.

Safe Drinking Water Act

The Safe Drinking Water Act put the federal
government effectively into the process of regulating
drinking water treatment. Recent regulations under this
Act require large communities to install activated carbon
filters to remove trihalo methanes and other suspected
carcinogens from the drinking water. The Safe Drinking
Water Act has probably had a deeper psychological impact
on the American people than any other piece of environ-
mental regulatory legislation. It has sensitized people
to the importance of the purity of the water they drink.
This increased public sensitivity has caused Congress to
push EPA for additional control over pesticides and toxic
chemical discharges into our nation's water.

It would be inappropriate to leave the drinking
water issue without mentioning the widespread publicity
created by the kepone problem in the James estuary. This
situation was widely reported in "60 Minutes" and the
national press. It provided the spur for the passage of
the Toxic Substance Control Act and the Resource Conserva-
tion and Recovery Act. This latter Act regulates the
transportation and disposal of hazardous chemicals with a
"cradle to grave" registration system. Staggering



additional costs will be imposed on private industry, but
the water quality benefits should be considerable. Leach-
ate from inadequate waste storage facilities now consti-
tutes one of the greatest nonpoint source threats to water

The Clean Water Act of 1977

The Clean Water Act of 1977 amounts to a compre-
hensive rewrite of the Federal Water Pollution Control Act
and an attempt by Congress to make a midcourse correction
in federal water policy. The Act provides an additional
incentive for innovative or alternative treatment tech-
nology by providing for an 85% federal grant for these
systems as opposed to the normal 75% grant for conventional
systems. Individual systems including those owned directly
by the homeowner and serviced by a central public service
facility are now eligible for grant funds. Efforts have
been made to reduce the reserve capacity in sewage treat-
ment plants eligible for funding and thereby shorten the
planning time frame.

The major thrust in the industrial area is the
Act's increased emphasis on the control of toxic pollutants.
EPA is to publish toxic chemical standards and effluent
requirements for toxic or hazardous chemicals during the
next two years. Increased authority is provided in S311
to control spills of toxic and hazardous materials into
the nation's waterways. The Act also endeavors in 404
to encourage the states to take over the wetlands permitt-
ing and nonpoint source review functions from the Corps
of Army Engineers. This Act clearly reflects a Congres-
sional desire to see more cost effective municipal sewage
treatment systems and to force greater regulatory concentra-
tion on toxic chemicals going into our nation's waterways.


In this paper I have tried to look at some of the
major pieces of legislation that constitute our national
water policy and EPA's efforts to implement them. My major
criticism of federal water policy is that it tends to be
entirely too reactive. P.L. 92-500 was more of a political
response to the pressures of Earth Day than a sound blue-
print for the future. Billions have now been spent on the
construction of waste water treatment plants without any
real evaluation of the whole system from the standpoint of
both water quality and water quantity. All of our present
sewage treatment methods systems are based on the toilet
invented by John Crapper prior to the turn of the century.
This method of human waste disposal requires huge quanti-
ties of water and the construction of very expensive
centralized systems. These centralized systems make less
and less sense as the cost of energy and chemicals goes up.


Federal money spent on these facilities has already created
an industry capable of generating its own momentum. This
public works industry is supported by developers who re-
quire public financing of infrastructure to make their
projects profitable in many presently undeveloped areas.
The end result of this whole thrust will be the continua-
tion of land development and nonpoint source pollution in
many areas where development probably could not occur
without a public subsidy. This also means a greater need
for flood control projects as headwater and runoff control
areas are developed and water shortages in overdeveloped
In looking at the whole municipal waste water
treatment picture, it is hard for me to conclude that the
EPA construction grants program is doing anything very
positive in the long run. The opposite is true with re-
spect to. the regulation of industrial dischargers of toxic
chemicals. Without some type of regulatory review, these
dangerous discharges would continue. The only lesson one
can draw from all of this is that in making national water
policy, a regulatory approach should be used where it is
necessary and tied to public health. Otherwise, the market
place should be permitted to force innovations in tech-
nology which may be delayed by the influx of large sums of
federal money spent on existing technology.


Water Rights and Water Use Efficiency

by J. Ernest Flack, Fellow, ASCE*


There is little to discuss with regard to increases in water use effi-
ciency and their relation to water rights unless there is a shortage of
water and competition for its use. For this reason, the determination
of who gets water that is saved by increased efficiency of use must
look at those jurisdictions those states where water is scarce and
where a history of competition and conflict has been recorded in the
courts. Thus much of our knowledge of this subject is gained from the
court records of the western states; few if any pertinent court deci-
sions will be found for the eastern or riparian doctrine states.
Every modern American water law doctrine prohibits the waste of
water. The riparian right applies only to reasonable uses of water. The
appropriative right commonly refers to beneficial use as the measure
and extent of the right. There are, however, quantities of water which
lie between waste and reasonable (or beneficial) use which may or may
not be protected as to right of ownership.
In order to make a beneficial use of withdrawn water, it is almost
universally necessary to divert more water than is actually needed at
the place of use. Some examples of this are:
(1) The quantities of water that are needed in industrial
(2) the carriage water that is needed in ditches and canals
to overcome seepage and other losses in order to deliver
water to an irrigated crop;
(3) the excess water that must be applied to an irrigated
crop to ensure that the evapotranspiration requirements
of the plants are met and that a soil salt balance is
(4) the excess water applied to lawns that is not consump-
tively used, and
(5) the drain water from domestic uses and commercial and
industrial establishments that is not consumed or in-
corporated into products.

*Professor, Department of Civil, Environmental, & Architectural
Engineering, University of Colorado, Boulder, Colorado 80309


From this list of examples it is apparent that it is neither feasi-
ble nor desirable to eliminate all discharges of waste water. Not only
do these waters carry off wastes or excess salts, but they are vitally
necessary to our health and well-being. In many circumstances, however,
it is possible to reduce the carriage or waste water, although at some
economic cost. The reduction in the withdrawal of these excess quanti-
ties will be defined as conservation.
In the process of conserving water, savings can result. It is the
capture of this saved water and the entitlement to its use with which
this paper is concerned.

Irrigation and the Appropriation Doctrine

As Hutchins' has stated, the appropriator must use reasonably efficient
means of diversions and of use but not absolutely efficient means. Rea-
sonableness is measured by the higher standards of the locality, with a
tendency of the courts to encourage increased efficiency when this can
be done without excess financial burden on the user.

"While the right of the prior appropriator is carefully
protected, he is compelled to exercise it with due re-
gard to the rights of others and the paramount interests
of the public. The quantity of his lawful appropriation
cannot be diminished, but he must return the surplus to
the stream without unnecessary waste, and he must use
reasonable diligence and reasonably efficient appliances
in making his diversion in order that the surplus may
not be rendered unavailable to those who are entitled
to it."2

In the appropriation states it is important to differentiate be-
tween two classifications of saved water. These are.salvage water and
developed water. Salvage water is that water saved as a result of arti-
ficial improvements, and results in an increase in the natural stream
flow of a basin. Developed water, in contrast, is new water added to a
stream through the efforts of man. With regard to the latter, Hutchins
has said, "Developed water is water which would not have augmented the
stream flow under natural conditions."3
This difference is illustrated by a recent Colorado case4 involving
a developer who cleared land bordering a stream of phreatophytes and
filled in a swampy area. This resulted in considerable savings of water
which had previously been lost to evapotranspiration. The developer
claimed the water saved as developed water, with a priority senior to
all water users on the stream under the theory that since the water had
not been available to any other user before his work, he was entitled
to all he saved, and that no other appropriator would be injured as a
The Colorado Supreme Court disagreed, finding that no new water had
been added to the stream. The water saved was a part of the stream, but
had been "appropriated" by the phreatophytes. Therefore, the water
saved belonged to the stream, to be allocated according to the stream
priority system. An interesting and important point was that the phrea-
tophytes came into existence after many of the early appropriations had



been made. Thus, the Court's finding was that this water was salvaged
and was not new or developed water.

Waste Water

In irrigation, that water over and above the irrigation consumptive use
requirements of the crops is commonly referred to as waste water. These
waters may be disposed of in several ways:

(1) They may constitute canal and lateral seepage losses;
(2) they may be "tail water" that discharges or wastes
from the lower end of the field during irrigation;
(3) they may be consumptively used by weeds or other non-
productive plants growing along ditches or in fields,
(4) they may constitute the deep percolation losses of
applied water that passes below the root zone.

The fate of such waters, if not lost to the atmosphere, is either
to recharge the ground water or return to a surface stream. In many
cases these return flows can be and have been appropriated by down-
stream users. It is to protect these appropriators that legal impedi-
ments have been formulated.
In the appropriation states an important exception to the priority
system, i.e., water which may be used outside the priority system, is
the developed water added to a basin by importation or recovered from
some non-beneficial use where such water has not historically been a
part of the stream in the basin of use.
The general rule is that the party who saves such water can put it
to beneficial use and has a right not subject to the call of senior
rights on the stream. He may reuse, sell or lease or otherwise dispose
of the water without fear of complaint of injury by other appropriators.
The argument is that since these waters were never available histori-
cally for appropriation by any other user, the party who saves the
water has an absolute right to its use.
When the water is released to the stream, however, it can be appro-
priated by downstream users, but the maintenance of such releases is
not an obligation of the original user. An importer of water to a basin
does not have to continue his imports or his place or method of use
just to ensure a return flow for downstream users. Likewise, one whose
operations result in canal leakage or waste water is not obligated to
continue to waste or leak the water for use of downstream users.
Now, the question arises, if the original appropriator is not re-
quired to waste water, can he acquire a right to any water saved from
waste? All jurisdictions give such a right to an importer of water so
long as he can identify his water and put it to beneficial use, inclu-
ding storage.
In the case of salvaged water, however, it is not as clear that
the party salvaging the water receives a right to its use outside the
stream priority system. The key seems to be whether or not the salvaged
water was, within the history of appropriation, ever available as part
of the basin water supply. If it was, then the salvaged water must be


returned to the stream system for use according to the priority system.
On the other hand, if the water salvaged was never available to the
stream, either because it was discharged to a location from which it
did not add to the basin supply or was lost by evapotranspiration, then
the party doing the salvaging acquires a right to the use of the water
in a manner similar to that of an importer of water.
An example of the use of salvage water is the leading case in Ari-
zona, in which a party who reduced his transit losses was allowed the
right to the salvaged water, but could not extend the use of the water
to other than the lands upon which the water had been applied.5 It
should be recalled that in Arizona, water is appurtant to the land.
Transposition of the Kovacovich decision to other states must take this
into account. Although not readily apparent from the case citation, it
would appear that the canal leakage in this case did not become part of
the streamflow but was lost to the system.
Imports of water from other basins are developed waters and are un-
der the sole control of the developer, not only with regard to first
use, but to successive uses as well. Appropriators on a stream have no
vested right to the continuance of a return flow from importation of
foreign water into a watershed or from developed water that would other-
wise not have come into the stream.
In Colorado, plans of augmentation are based on the developed water
notion, in that new water is made available by a developer either for
his own use or to fill rights injured as a result of his develop ment.
For example, if in the Shelton farms case the developer had been able
to show that the water saved had never been a part of the stream, he
would have a right to the use of that water or to replace other water,
such as ground water, that he wanted to take from other appropriators.
Another type of situation is that in which a senior appropriator
downstream requires large quantities of flow to be diverted in order to
overcome transit losses. If a quantity of water, 2x, is required to by-
pass a user upstream to satisfy a prior right of x downstream, then the
upstream user could pay twice the value in use of the downstream user
if he could capture the benefits of the full use of 2x. On the other
hand, the downstream appropriator may not capture the total quantity 2x
by reducing the losses in transit if in a natural stream. Or, if the
right should be transferred upstream the actual right to use will not
change but remain at x. Thus the rights of salvage pertain only to a di-
version or conveyance ditch and not to an original stream. In the exam-
ple it is clear that if the quantity x were lost in transit in a diver-
sion lateral or canal, it would be available to the salvager. If the
flow is in a river, however, and the transit loss is somehow reduced,
the salvage water simply adds to the available supply.
In an early Utah case, the Court permitted a junior appropriator to
save and use losses of 90% of the water diverted to a rocky channel by
substituting a better means of diversion and conveyance.6
What about non-consumptive uses? If the water right owner can make
more efficient use of the water, can he take advantage of the water
saved to increase his usage? If the flow is in the original stream pro-
bably not, but if it has been diverted, then the answer is most likely
yes. Since the use is non-consumptive in the first place, then in-
creased efficiency in use does not make any new water available and no
new rights are to be acquired.


The situation with regard to a city or industry is more favorable
to the rights of the developer. A city or industry which can practice
water conservation can extend the right without fear of loss of right.
The salvaged water is within the system and it is a matter of reduction
of return flows. The reduction in return flow would be a measure of the
increased efficiency in use of the city or industry and appropriators
downstream would have no recourse to protection of the quantity of re-
turn flow as to both location and quantity of return. In the case, how-
ever, in which such return flows are used to satisfy downstream senior
rights because the city or industry is diverting flow upstream in ex-
cess of quantities naturally available downstream to satisfy seniors,
then the reduced return flows would have to be made up from other wa-
ter. The city or industry would not benefit from the conserved water to
the degree that the reduced return flow served senior rights down-
Historically, conversion of irrigated land to urban development has
usually resulted in increased quantities of flow because cities typi-
cally have not diverted as much or consumptively used as much as the
equivalent irrigated land. The only problem is the out-of-phase use in
that urban requirements for non-growing season water are not reflected
in the former irrigation use. Therefore, cities must acquire other
rights for winter use or store consumptive use of former irrigation
rights for use in the winter months.

Foreign Waters

Foreign waters are those imported to a basin, and are not a natural
part of the water supply in the area where used. These are developed wa-
ters in the strictest sense, but once used and released, usually become
a part of the supply of the stream to which they are released. The
rights of recapture are more liberal than with in-basin return flow. In
cases of the latter the courts usually draw the line at recapture once
the seepage or waste water has flowed back into a stream and been appro-
priated. Foreign waters may be recaptured as long as this is done above
the point where the water leaves the project, even if in a stream. This
is illustrated by the California Court, which stated:

"To summarize, one who produces a flow of foreign waters
for a beneficial use and thereafter permits it to drain
down a natural stream channel, is ordinarily under no
duty to lower claimants to continue importing the supply
or to continue maintaining the volume of discharge into
the second stream channel at any fixed rate...But as a
general proposition, an irrigation district, after im-
porting water from one river, passing it through irriga-
tion works, and discharging it into a natural creek bed
in the second watershed, may change the flow of water
imported or the volume of water discharged from its works
into the second stream, or stop the flow entirely, so
long as this is done above the point where the water
leaves the works of the district or the boundaries of its


The rationale of the Court was that a project must have the oppor-
tunity to increase its efficiency of use over time in order to attain
the highest economic benefits despite a downstream appropriator's ex-
penditure of considerable effort to utilize the foreign water return
flow. In the case cited, the importer from the Stanislaus River to Lone
Pine Creek was allowed to capture seepage water, even though it had
been let go for five years and had been appropriated by a downstream
user who had expended thousands of dollars to divert the water.

Ground Water
Probably the most important aspect of increased efficiency of use of
ground water concerns the maintenance of static water levels. Since
pumping water has costs associated with it, as opposed to much of sur-
face use which is by gravity diversion, there is a built-in economic
incentive to conserve water. The early English common law application
of absolute ownership was modified in American practice to protect the
early users of ground water. The rule developed to the point that in
Utah a prior appropriator could restrain a subsequent appropriator from
lowering the static water level unless the water was replaced at cost
to the subsequent appropriator.8
This rule was modified to require reasonable and efficient means in
taking of ground water in the 1969 Murray City case. The rule in that
state now seems to be that a new junior right must bear the costs of
replacement of water if it interferes with an existing right, but that
when a more efficient means of taking water (by Murray City) is initia-
ted it is not necessary for one initiating this change to compensate
those who may be affected economically by the change in ground water
The trend in ground water law thus seems to be that reasonable and
efficient means of extracting water must be utilized by all those with-
drawing ground water from a common pool. Unless inordinate lowering of
the ground water is caused by a new user or by modification of an exist-
ing right, then the other existing users must bear their own costs for
maintaining their well yields. It is, of course, the role of the admin-
istrative agencies and/or courts to determine what is reasonable and
efficient and when the lowering of the water level becomes such a bur-
den on other users that recourse to a legal remedy is necessary.

Riparian Doctrine
It is a long-established rule in the riparian states that any surplus
must be returned to the stream after water has been used.10 No cases
regarding disputes over ownership of salvaged or saved water have been
reported. Presumably, such water belongs to the riparian who saves it,
as long as the purpose to which he puts the water is reasonable in
terms of his own use and that of downstream users who might be benefi-
ciaries if the saved water were released to the stream.




From this brief analysis of case law as applied to increased efficiency
in use of water and to entitlement to saved water, it appears that one
who can show that he has actually increased the supply of water above
that which would be naturally available may obtain title to that water
without regard to the rights of others. In those cases, however, es-
pecially in appropriation states, in which someone downstream has ac-
tually appropriated waste water which is part of the natural supply of
the basin where used, some question of entitlement to the water will be
manifest. Such water is likely to be handled as part of the natural
supply, with the same priorities and allocations of that supply.


1. Hutchins, Wells A., Water Rights Laws in the Nineteen Western
States, Vol. 1, Misc. Publ. No. 1206, U.S. Department of Agri-
culture, 1971, p. 644.

2. Natoma Water & Mining Co. v. Hancock, 101 Cal. 42, 50-52, 31
Poc. 112 (1892), 35 Poc. 334 (1894).

3. Comrie v. Sweet, 75 Colo. 199, 225 P. 214 (1924).

4. Southeastern Colorado Water Conservancy District v. Shelton
Farms, Inc., 529 P. 2d 1321 (Colo. 1974).

5. Salt River Valley Users' Association v. Kovacovich, 3 Ariz.
App. 28, 411 P. 2d 201.

6. Big Cottonwood Tanner Ditch Co. v. Shurtliff, 56 Utah 196,
204-205, 189 Poc. 587 (1919).

7. Stevens v. Oakdale Irrigation Dist., 13 Cal. 2nd 343, 90 P.
2d 58 (1939).

8. Current Creek Co. v. Andrews, 9 Utah 2d 324, 344 P. 2d 528,

9. Wayman v. Murray City Corp., 23 Utah 2d 97, 458 P. 2d 861,
10. Hutchins, op. cit., citing six cases, p. 91.


Frank E. Maloney and Richard G. Hamann


The physical characteristics of land and water are closely related.
The principle is almost axiomatic among planners that land use both af-
fects water and depends upon it.1 Walker and Cox, for example have
Today there is general agreement that whatever
is done with water will have some impact on what
can be done with the land--and, most importantly,
that what is done with the land has a signifi-
cant impact on what happens to our water. This
basic truth is recognized by those who have
given the problem even minimal consideration.
Numerous governmental commissions and agencies have called for a
closer relationship between land and water management. The National
Water Commission has recommended that land use planning make "...ade-
quate provision...for the coordination of water and land use planning
...and encourage the use of coordinating institutions...."3 The United
Nations Water Conference similarly recommended that countries should
"Ensure that land and water are managed in an integrated manner".4
Two sections of the proposed Florida State Comprehensive Plan,
which will be discussed infra, speak to this issue. A policy in the
Water Section is to "provide for coordination between land use and
water resources planning to avoid conflicting management objectives".5
The Land Development Element includes as one overall objective to "re-
quire the coordination of planning and regulatory functions for land
use and related activities, including water quality and quantity manage-
ment and regulation...."6
Nevertheless, despite the physical interrelationships and the con-
sensus among knowledgeable persons that unity is needed, planning and
management of land and water resources have historically proceeded along
separate paths. The reasons are complex. First, there has been an ob-
vious lack of perception that land and water are interrelated. Until
*Professor of Law and Dean Emeritus, University of Florida Law Center; B.A., 1939, University of Toronto; J.D.
1942, University of Florida. Dean Maloney is the Principal Investigator of the Water Resources Scientific
Information Center of Competence in Easter Water Law.
*J.D., 1976, University of Florida. The authors gratefully acknowledge the support of the Landegger Charitable
Foundation for the preparation of thia article.
1. See e.g., I. c Desi n with Nature, 56 (1969).
2. Walker & Cos, Water An Element of Land-Use and Urban Growth Policies 81-94, 82, 102 J. of the Urban
Planning and Development Division. Proceeding of the American Society of Civil Engineers (August 1976).
3. National Water Co mission. Water Policies for the Future, Recommendation No. 10-1, 369 (1973); See also
the policies proposed by F. R. Do. 77-20496 (-15-1i).
4. U.N. Water Conference, Mar del Plata, Argentia, March 14-25, 1977, ELCONF 70/c.2/c.4,p.2 (March 17, 1977).
5. The Florida State Comprehensive Plan, Water Section, Objective 1, 185 (February 9, 1978).
6. Id., Land Development Section, Overall Policy 1, 105.


recently, few people understood that there is a relationship between
what is done on the land and what happens to the water and vice versa.
lan McHarg describes the phenomenon eloquently:
Natural processes are unitary whereas human
interventions tend to be fragmentary and in-
cremental. The effect of filling the estu-
arine marshes or felling the upland forests
is not perceived as related to the water regi-
men--to flood or drought--nor are both activi-
ties seen to be similar in their effect. The
construction of outlying suburbs and siltation
of river channels are not normally understood
to be related--nor is waste disposal into
rivers perceived to be connected with the
pollution of distant wells.7
Second, there has been notable lack of concern by people for the
impact of their actions on the environment. For example, the person
whose construction company is clearing land from which sediment erodes
to smother aquatic life often simply does not care enough about that
impact to voluntarily pay for the added costs of erosion control. The
lack of concern evidenced by such a person results from a deficiency
in our system of ethics and values.8 Although the builder would un-
doubtedly view it as "wrong" to smother another human and, indeed
would be appalled at the thought of doing such a thing, he has no simi-
lar ethical scruples against smothering all of the non-human life in a
section of stream. Whereas the dominant ethic of our society holds
that human life is valuable and not to be destroyed, the living envi-
ronment itself presently has no similar value and is thus abused at
Another reason for the lack of concern for environmental effects
is that the damage usually does not accrue as an economic cost to the
person who causes it. At the same time, substantial economic benefits
may be gained by that person.9
Because neither ethics nor economics have functioned to restrain
environmental destruction, society has demanded that government inter-
vene. Government regulation, however, and the actions of government
itself have not been integrative of land and water management. One
reason is that the people who staff government agencies suffer from
the same ignorance and ethical deficiencies as do private individuals.
They are also subject to political pressure brought to bear by private
individuals whose profit oriented aspriations may be thwarted by ef-
fective environmental regulation. Other reasons suggested by commen-
tators implicate institutional factors.
Government has historically attacked problems in a piecemeal,
rather than a comprehensive manner. Numerous single-purpose agencies
have been created to deal with specific problems such as the need for
roads, flood protection or irrigation water. The emphasis of these
agencies has been on achieving those narrow goals which have been
assigned to them. Other factors, such as environmental impacts, are
treated as less important.10 Less destructive or more efficient and
7. I. MHra, sura note 1 at 65.
8. A. old, A Sand County Almanac. 237-264 (1949).
9. g, supra note 1 at 65.
10. F. Bosselman, D. Feurer, C. Siemon. The Permit Enplosion, 74 (1976),


cost-efficient methods may be ignored by such an agency when they lie
outside the scope of traditional activities. For example, an agency
which was created to build dams is likely to promote the construction
of dams to supply irrigation water even when a less expensive alterna-
tive would be to implement water conservation practices, because the
latter solution would not be implemented by that agency.
As the objectives of government have broaded in recent years to
include the goal of environmental protection, regulation has continued
to be implemented in an incremental and disjointed fashion with little
regard to how the total system should operate.12 For example, a legis-
lature which sees a need to regulate the use of water might pass a law
with the limited objective of accomplishing that goal. Later, that
same legislature might see the need for land use planning, wetlands
protection or some other problem and pass another law to solve it. The
result is a hodge-podge of discrete laws and regulations which bear
little logical relationship to each other.
The confusion is compounded by a fragmentation of authority at
each level of government and between levels of government. As new
programs are initiated, new agencies are created to administer them.
Consequently, numerous distinct agencies have programs dealing with the
management of our natural resources. One investigator has counted 137
federal programs which directly affect land use.14 In addition there
are thousands of local governments, which remain the primary focus of
land use control, hundreds of regional organizations, and the states,
each with individual, complex bureaucracies.
A surge of political activity by environmentalists helped lead to
the passage between 1972 and 1975 of several significant new laws in
Florida to plan and regulate the impact of human activity on land and
water resources. The experience of implementing and administering the
new programs demonstrates the difficulty of divorcing land and water
management considerations.


Until recently the emphasis of water management in Florida has
been on rapidly draining wetlands to facilitate agricultural and resi-
dential land use. Hundreds of drainage districts were formed for this
single purpose.15 The trend toward a more comprehensive approach be-
gan in 1949 with formation of the Central & South Florida Flood Control
District.16 It was not created simply to control floods, but rather
as a multipurpose water management district in which conservation and
use of water rapidly became of equal importance to its disposition in
periods of excess rainfall. A second large-scale multipurpose water
management district covering another fifth of the state, the Southwest

11. Walker & Cox, supra note 2 at 86.
12. The Permit Explosion, suptr note 10 at 73; J. Noble, J. Banta & J. Rosenberg (eds.), Groping Through the

13. Environments for Tomorrow, Inter-relationships of Land Use Planning and Control to Water Qality Manage-
ent ann 1 contract No. 68-01-0175); Groping through the Mae. supra note 12 at 22-23; he
Permit Explosion, spra note 10 at 73-74; Walker & Cox, supra note 2 at 0.
14. Groping Through the Mze, supra note 12 at 23.
15. See Florida Dept. of Agriculture, Drainage Districts of Florida, Bull. 67, New Series 9-14 (1931); see
eerally, F. Maloney, S Plaser and F. Baldwin, Water Law and Admi tration Te orida Experience
16 00.1 (196 h).
16. 1949 Fla. Laws, Ch. 25270 at 629.


Florida Water Management District, was created in 1961.17
Meanwhile, a group of water law experts at the Holland Law Center
developed A Model Water Code,18 designed to provide a vehicle for
comprehensive administrative regulation of water resources within the
framework of a riparian water law system. The essential chapters of
the Code were adopted in Florida with minor modifications as the Water
Resources Act of 1972.19
The water Resources Act provides for a two-tiered administrative
structure headed at the state level by the Department of Environmental
Regulation.20 Under the Department are five regional water management
districts designed to provide the diverse types of regulation necessary
indifferent areas of the state.
DER and the water management districts have four primary areas
of responsibility under the Water Resources Act: (1) water management
planning; (2) construction and operation of water management struc-
tures; (3) regulation and permitting of consumptive use of water; (4)
regulation and permitting of surface water management systems.21 Each
of these functions can have an enormous impact on the land use of an
area. At the same time, patterns of land use and development may, be-
cause of their effect on water resources, either enhance or conflict
with attainment of the water management districts' goals. Housing de-
velopment with extensive private drainage systems, for example, supple-
ments and aids a water management district if its goal is to drain land,
but conflicts with objectives of water conservation by retention. Sim-
ilarly, locating a land fill in an aquifer recharge area can aggrevate
problems of providing sufficient potable water.22
One of the most important functions of the water management agen-
cies is to prepare a comprehensive state water plan. Specifications
for the preparation of this plan and its relationship to other planning
efforts are discussed infra.
Chapter 373 recognizes the need for construction and operation of
water management structures in Florida.23 Most such structures have
been built in South Florida. It is estimated that when the elaborate
network of publicly constructed canals, levees and pumping stations
is completed in South Florida, it will have cost over $721 million.24
There have been two primary beneficiaries of this expenditure. First,
large farmers in the Everglades Agricultural Area south of Lake Okee-
chobee have been able to drain a large portion of the original Ever-
glades and farm the thick, organic soils. These farmlands, as well as
several associated small communities, have also been protected from
17. 1961 Fla. Laws, Ch. 61-691 at 230.
18. Maloney. Ausness & Morris, A Model Water Code (1972).
19. 1972 Fla. Laws, Ch. 72-299; codified as Fla. Statute 9373.012 et. seq. (1977).
20. The 1972 Florida Water Resources Act extabllshed the Dept. of Natural Resources as the state level agency
charged with regulation of consumptive use of water. Fla. Stat. 1373.019(1) (1975). At that time, a separ-
ate state agency, the Department of Pollution Control was n large of water quality control. Fla. Stat.
$403.503 (1975). To assure proper coordination of these two management functions, water use and water qal-
ity control, the 1975 Florida Legislature placed both under a single new environmental agency, the Department
of Environmental Regulation. Florida Environmental Reorganizatlon Act of 1975, 1975 Fla. Laws, ch. 75-22,
21. DeGrove, Administrative Systems for Water Management in Florida (1978).
22. The Miami-Dade Water and Sewer Authority has faced just such a problem, "New Water Site Faces Pollution,"
The Miami Herald, c-1 (Jan. 2, 1977).
23. Fla. Stat. 51373.016(2) (c), .086, .103(3)(4), .036(2)(c) (1977).
2&. Central and South Florida Flood Control District, Facts and Figures (brochure).



hurricane flooding. Drainage from the agricultural areas, however, car-
ries a heavy load of pollutants into the lake which is seriously affect-
ing the quality of its water.
Second, urban development along the lower East Coast has been pro-
tected from periodic flooding. As a result, it has encroached ever
farther into the Everglades, creating a susceptibility to flooding
which is probably as great as that which the original works were intend-
ed to relieve. Cities are being built to the very edge of dikes which
hold the remaining Everglades waters. These urban developments, often
poorly designed, in turn have had numerous adverse effects on water
resources resulting from drainage, destruction of vegetation, construc-
tion of impervious surfaces, and generation of pollutants. The South
Florida Water Management District is now seeking to control some of
these impacts through its surface water management system permitting

Surface Water Management

Regulation of the management and storage of surface waters is
expressly authorized by the Florida Water Resources Act. Permits may
be required and such reasonable conditions imposed,
...as are necessary to assure that the construc-
tion or alteration of any dam, impoundment, re-
servoir, appurtenant work, or works will not
be harmful to the water resources of the dis-
Similar restrictions on operation and maintenance may be imposed.26 The
potential breadth of this authority is revealed by an examination of
the statutory definitions for the terms used.27 In particular, a "dam"
is defined as "...any artificial or natural barrier, with appurtenant
works, raised to obstruct or impound, or which does obstruct or impound,
any of the surface,waters of the state".28 "Surface water" in turn is
"...water upon the surface of the earth, whether contained in bounds
created naturally or artificially ro diffused."29 "Works" are defined
as "...all artificial structures not included in subsections (1) and (2),
including but not limited to, ditches, canals, conduit, channels, cul-
verts, pipes, and other construction that connects to, draws water from,
drains water into, or is placed in or across, the waters of the
Virtually any movement of earth in Florida will create a "dam" as
defined in this statute. It is difficult to conceive of a construc-
tion project which would not result in the creation of "works", whether
as a golf course, parking lot or rooftop from which water drains or as
a drainage system utilizing swales, gutters, ditches and culverts. A
liberal reading of the statute would, therefore, give DER and the water
management districts extensive authority to control many of the surface
land alterations and drainage systems which are presently damaging
25. 71a. Stat. 1373.413(1) (1977).
26. Id., 1373.416(1).
27. Id., 1373.403.
28. d.," $373.403(1).
29. Id., 1373.019(11).
30. Id., 1373.403A4,


water resources.31
To date neither DER nor any of the water management districts has
implemented a program for the regulation of surface water management
which is as comprehensive and protective as that authorized by the Water
Resources Act. The Department of Environmental Regulation, the North-
west Florida Water Management District, and the Suwannee River Water
Management District have no regulations as yet. The St. Johns River
Water Management District,32the Southwest Florida Water Management Dis-
trict?3nd the South Florida Water Management District34have each imple-
mented permitting systems.
The South Florida Water Management District has promulgated the
most detailed and comprehensive surface water management regulations.
The reason is probably that several surface water resource problems
are most acute in South Florida. First, the quality of waster in drain-
age canals and the associated ground water is being degraded by impro-
perly managed runoff from developed areas. Second, while the new deve-
lopment increases the demand for water, it also decreases the supply if
land is drained and built upon. Third, by lowering the head of fresh
water, drainage increases salt water intrusion. Finally, the likelihood
of flooding increases as people move into marginally protected areas.
The District is attempting to meet these problems in its surface
water management permitting program. Certain small projects have been
issued a general permit requiring the use of techniques to protect
water quality.35 Larger projects must apply for a specific permit and
comply with more detailed criteria.36
The South Florida Water Management District has demonstrated an
awareness of the relationship of its surface water management permit-
ting system to the regulatory functions of other government agencies.
Thus, the effectiveness of a permit is conditioned on the receipt of
all other necessary governmental aughorizations.37 In addition, there
are higher thresholds for the General Permit program in Dade and Palm
Beach Counties because local agencies there have the power and willing-
ness to enforce standards similar to those which the District would im-
pose.38 The District, thus, is essentially delegating its permitting
authority to the local agencies in order to eliminate redundancy and
overlap of functions. In one area of Dade and Broward Counties, the
C-9 or Snake Creek Canal basin, the District has been working closely
with all local governments and the Regional Planning Council to develop
integrated criteria for both surface water and land management.39
Special surface water management criteria have been implemented in this
sensitive area.40
31. Note however the presence of several vaguely worded but potentially crippling exemptions, Id., 1373.406.
32. 4 Fl. Admin. Code 161-4.
33. Id.,16J-4.
34. Id., 16K-4.
35. Id., 16K-4.022.
36. See "Basis of Review of Construction of Surface Water Management Systems Serving Projects with Two or More
Acres of Impervious Area Within the South Florida Water Manegement District May, 1977".
37. 4 la. Admin. Code 16K-4.021(1)(b)3.
38. Id.,16K-4.021(e)(2).
39. Central and Southern Florida Flood Control District. Annual Report for the Years October 1974. thru
ptemer. 197, at 11.
40. 4 Fla. Admin. Code 16K-34.


Consumptive Use Permitting

One of the most important parts of the Florida Water Resources
Act of 1972 is the one which authorizes regulation of the consumptive
use of water.41
The governing board or the department may
require such permits for the consumptive use
of water and may impose such reasonable con-
ditions as are necessary to assure that
such use is consistent with [its] overall
objectives...and is not harmful to the
water resources of the area.42
To obtain a consumptive use permit, the applicant has a burden of
showing "...that the proposed use of water: (a) is a reasonable-bene-
ficial use...; and (b) will not interfere with any presently existing
legal use of water; and (c) is consistent with the public interest."43
The standard of reasonable-beneficial use is defined as "...the
use of water in such quantity as is necessary for economic and effi-
cient utilization for a purpose and in manner which is both reason-
able and consistent with the public interest."44 This standard is de-
rived from aspects of both Eastern and Western water law and is design-
ed to combine the best features of the reasonable use and beneficial
use rules. First of all, the quantity of water used must be efficient
with respect to the use itself. This part of the reasonable-beneficial
use test, requiring that the use be "beneficial", allows only that
quantity of water to be used as is necessary for an economically ef-
ficient operation. The value of the use itself in relation to other
uses is not considered in this part of the test. However, the reason-
able-beneficial use standard also requires that the water, regardless
of amount, be used for a purpose which is both reasonable and consis-
tent with the public interest. This means that the purpose must be
"reasonable" in relation to other uses. This criterion requires that
the use not be detrimental to other users or inconsistent with the
character of the watercourse from which the supply is taken, or incon-
sistent with the public interest.45 The Eastern Water Law Center at
the University of Florida College of Law is currently working with DER
on a project to further define the term.
One device which the water management districts could use to inte-
grate their decisions with those of local land use planners would be
through defining the public interest component of the reasonable-bene-
ficial use standard.46 Permitting use of water for an activity that is
inconsistent with local, state, or regional plans, even if they have not
yet otherwise been implemented, could be found contrary to the public
interest. For example, if coastal zone management planners have decided
it would be desirable to preserve an area in its natural state or as an

41. Fla. Star. 61373.203-.249 (1977).
42. Id., 5373.219(1).
43. Id., 1373.223(1).
44. Id., 1373.019(5).
45. Model Water Code, supra note 18 at 171-172.
46. See e.g. a former fule of the South Florida Water Management District which listed factors which the
Board could consider in determining whether a use was consistent with the public interest. Fla. Admin.
Code 16CA-2, 05() (repealed Nov. 18, 1975).


agricultural zone, it would not be in the public interest for the water
management district to grant a consumptive water use permit for the pot-
able water supply of a large residential development in the area.
Rather than granting the permit simply because water is physically
available, the District could deny it to reinforce the effects of the
land use planners.
Two other features of the 1972 Florida Water Resources Act could
be used by Florida's water managers to harmonize the issuance of permits
with land use and other plans. The Department of Environmental Regula-
tion is allowed to designate in the State Water Use Plan certain desir-
able uses which are to be given a preference in the granting of consump-
tive use permits.47 Such uses might include recreation, preservation of
the environment, protection of recharge areas, and others. A general
preference for those uses which are consistent with land use plans over
those uses which are inconsistent might also be stated. Once such a
designation is made, the governing boards of the water management dis-
tricts must recognize it. Although some western states employ prefer-
ences in their prior appropriation laws to promote particular water
policies, to date preferences have seldom been used in the United States
to further environmental objectives.48
Similarly, certain uses may be declared undesirable, in which
case the governing board of a water management district is authorized,
but not compelled, to deny a consumptive use permit. Activities which
are contrary to local, state or regional land use plans could be de-
clared undesirable, regardless of their impact on water resources.
Water use zoning would thus reinforce land use plans.
The Florida Water Resources Act also provides for the establishment
of minimum flows for surface watercourses, as well as minimum lake and
ground water levels.49 It is essential that any system of water alloca-
tion include provisions for minimum flows and levels for public purposes.
Commercial navigation, recreational boating, fishing, hunting, swimming,
and protection of the ecology are some of the non-consumptive public
purposes that can be and should be protected under the minimum flow and
level concept in Florida.50 The determination of which uses are entit-
led to protection should be made only after taking into consideration
all relevant plans.


The State of Florida's greatest direct involvement with land use
control is through the Environmental Land and Water Management Act of
1972 (ELA).51 It is closely modeled after the American Law Institute's
(ALI) Model Land Development Code.52 The ELA leaves the power to make
47. Fla. Stat. 5373.036(a) (1977).
48. See Ohrenschall & Imhoff, Water Law's Double Environment: How Water Law Doctrines Impede the Attainment
of Environmental Enhancement Goals, 5 Land 6 Water L. Rev. 239,2/U (191); but see Ore. Rev. Stat.
5536.340 (Supp. 1971).
49. Fla. Stat. $373.042 (1977).
50. Id.
51. 1972 Fla. Laws, ch. 72-317, codified as Fla. Stat. 3380.012 et seq. (1977). See generally, R. Healey,
Land Use and the States 103-138 (1976); Hee, Slow Start in Paradise (Conservation Foundato, 1 4);
Finnell, Saving Paradise: The Florida Environental Land and Water Management Act of 1972, 1972
Urb. L. Ann. 10/.
52. ALI, A Model Land Development Code (1975). Actually, It was modeled after Tentative Draft Number 3 of
rFiicle I ot the AL1I odel Land Development Code, which was available at that time. The two versions
are substantially alike, however.


most decisions in the hands of local govenmens, while the state par-
ticipates in regulating development in "areas of critical state concern"
and "developments of regional impact".

Areas of Critical State Concern

Florida's governor and cabinet, sitting as an "Administrative Com-
mission", is empowered to designate selected lands as "areas of criti-
cal state concern", thereby invoking a measure of state control over
the content and administration of land development regulations in the
area.53 "Principles for guiding the development of the area" must be
specified at the time an area is designated. Upon designation, local
governments in the area have six months to present land development reg-
ulations to the Commission which "comply" with the specified principles.
If that does not occur, the Division of State Planning must submit to
the Commission recommended land development regulations to supersede
or supplement those of the local government. The local government then
has a responsibility to administer and enforce the new regulations. If
the administration of them is inadequate, the Division of State Planning
"...may institute appropriate judicial proceedings to compel proper
enforcement...." Development orders of the local government in an area
of critical state concern may also be appealed to the Commission.

Development of Regional Impact

The state also participates under the ELA, in regulating develop-
ments of regional impact (DRI).54 The statute defines a DRI as "...any
development, which, because of its character, magnitude or location,
would have a substantial effect upon the health, safety, or welfare of
citizens of more than one county". The Administration Commission has
adopted guidelines"... to be used in determining which particular devel-
opments shall be presumed to be of regional impact".55
The specifics of regulation depend upon the jurisdiction in which
the DRI is to be built. In most instances, the proposed DRI will be in
a jurisdiction which has adopted land development regulations, in which
case an application must be made to the local government for development
Although the local government is empowered to approve or deny an
application, the regional planning agency is charged with the duty of
evaluating the proposed developments' regional impacts on such factors
as the environment, economy, public services, and transportation sys-
The local government in turn must consider whether the development
is consistent with the state comprehensive plan, local land development
regulations and the report and recommendations of the regional planning

53. Fla. Stat. 1380.05 (1977). The First District Court of Appeal has recently ruled this section of the
ttutt. unconstitutional. Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. ist D.C.A., 1977).
The rationale of the court was that the legislature had failed to provide oufficlently detailed standards
to guide the Ad .nistration Co-isslon in the exercise of Its discretion and therefore the statute is an
unconstitutional delegation of the legislative powers. 351 So. 2d 1066-70. The decision has been ap-
pealed to the Supreme Court of Florida.
54. Fla. Stat. 1380.06 (1977). See generally, Pelhan, Regulating Developments of Regional Impact 29 U. Fla.
.Re-. 1 a 9-852 (1977).
55. Fla. Stat. 1380.06(2) (1977); Fla. Admin Code 22F-2.
56. Fla. Stat. 1380.06(8) (a)-(f) (1977).


There is no requirement that the recommendations of the Regional
Planning Council (RPC) be followed, but the decision regarding issuance
of a development order may be appealed by either the developer, the
Regional Planning Council, or the Division of State Planning to the
Land and Water Adjudicatory Commission.58 A final decision on whether
to allow development is then made by that state level body.

Use of Area of Critical State Concern Designation to Protect Water

The history of the ELA furnishes an excellent example of the way
land use controls may be used to protect water resources. The Environ-
mental Land Act itself was proposed by Governor Askew's Task Force on
Resource Management, which had been directed by him "to follow up on
the problems in South Florida...."59 The ELA was thus a response to an
environmental crisis which had first received significant attention, as
is often the case, because of problems of water supply.
Water has continued to dominate the process. Those areas which
have been designated as being of critical state concern thus far have
been brought under the Act largely to protect their vital water re-
sources. Within a year after passage of the ELA the legislature desig-
nated a part of the Big Cypress Swamp as an area of critical state con-
The Big Cypress is an enormous swampy area occupying most of the
southwestern end of the Florida peninsula.61 The location, depth and
timing of inundation by water are extremely important to its ecology.
Freshwater flow from the Big Cyprus is also vital for regulating salin-
ity in the adjacent highly productive mangrove estuaries of Everglades
National Park. The entire region is thus extremely sensitive to alter-
ations in the distribution and flow of surface waters.
Drainage and development threatened to ruin The Big Cypress, and
local government officials had taken no action to prevent it. Develop-
ment of Golden Gate Estates by Gulf American Land Corporation, for ex-
ample, was permitted.62 In Golden Gate Estates an intricate grid of
canals and roads was constructed to drain and provide access to a 173
square mile tract of The Big Cypress. The land was subdivided and sold
to buyers all over the world. The water table was reduced, the hydro-
period shortened, the incidence of fires increased, the coastal estuary
disrupted, and the specter of water shortages made imminent.
The Division of State Planning proposed regulations and boundar-
ies for The Big Cypress Area of Critical State Concern which were
designed to prevent duplication of the Golden Gate Estates tragedy else-
where in the area. Three-fourths of the watershed was to be protected
by stingent regulations. Intense political opposition, however, forced
a drastic reduction in boundaries and weakening of the regulations.
The final regulations which the Commission .adopted are fairly re-

57. Fla. Stat. 380.06(11) (1977).
58. Fla. Star. 380.07(2) (1977).
59. Finnell, supra note 51 at 112.
60. 1973 Fla. Laws, ch. 73-131.
61. See L. Carter, The Florida Experience 20-21 (1974).
62. See Phase 1 Golden Gate Estate. Redevelopent Study. Collier mount Florida (hereinafter cited as
Golden Gate Estate Stud); L. Carte. ura note 61 at 23V2-M


restrictive.63 No more than 10% of a site may be altered and no more
than 50% of that may be covered with a non-permeable surface. Other
sections primarily regulate the hydrologic aspects of land development.
For example, if any dredge or borrow ponds are constructed thay must "be
aligned in the direction of local surface water flows...and must be de-
signed to...release...storm waters as sheet flow from their downstream
end into unaltered areas of vegetation". New drainage facilities are
required to "...release water in a manner approximating the natural
local surface flow regime, through a spreader pond or performance equi-
valent structure or system, either on site or to a natural retention,
or natural filtration and flow area."
The first area to be designated as an area of critical state con-
cern by the Commission was a part of the Green Swamp in central Florida@4
This area--a perched swamp--is both threatened by development and hy-
drologically vital. The threat comes from being adjacent to the booming
Orlando-Disney World area. The hydrologic value of the Green Swamp lies
in the fact that it is the source of five major rivers and one of the
most important recharge areas in the state of the Floridan aquifer,
Florida's main source of ground water supply. The Green Swamp was
designated primarily to protect its ability to supply good quality
Regulations subsequently adopted for the area reflect this con-
cern.65 For example, the percentage of a site's area which may be al-
tered is "...limited in accordance with the natural drainage capabili-
ties of fits soil]". No more than 50% of the altered area may be cover-
ed with a non-permeable surface. Large non-permeable surfaces, and new
drainage systems- must release waters "...in a manner approximating the
natural surface water flow regime." Protection of recharge capability,
prohibition of discharge into sinkholes, protection of the "water re-
tention and filtering capacity of wetlands", and floodplain building
restrictions are all addressed by the regulations. The standards and
regulations of the Southwest Florida Water Management District regard-
ing ground water withdrawals are incorporated by reference.

Use of the DRI Process to Protect Water

Considerations of the impact on water resources have played a de-
terminatative role in the evaluation of developments of regional impact.
The first case decided on appeal by the Cabinet involved the proposed
Three Rivers development, which was to be a large residential community
located about 20 miles north of Orlando in Lake County.66 Although
supported by Lake County, the development was opposed by the East Cen-
tral Florida Regional Planning Council. A primary reason for its oppo-
sition was concern for the effects of sewage and storm water runoff on
water quality of the adjacent Wekiwa River, which the council had
recommended for designation as 4 "scenic and wild river". A hearing ex-
aminer appointed by the state agreed with the Council and his report was
accepted by the Cabinet, thus blocking the uncoordinated development.

63. Fla. Admin..Code 22F-3.
64. Fla. Admin. Code 22F-5.
65. See Fla. Admin. Code 22F-6.
66. R. Heale s r note 51 at 123-125. Three Rivers was planned to contain 18,000 dewlling units, housing
0,00 people, an a 5,800 acre tract of land. Id.


A more recent example of the working of development of regional
impact powers is the Estuaries, a proposed development of regional im-
pact in Lee County adjacent to Estero Bay on the Southern Gulf coast of
Florida. The developer proposed to develop a 6,500 acre tract of land
with 26,500 high density dwelling units.67 The development would house
42,000 permanent residents, increasing to a seasonal population of
74,000. Because approximately 92% of the property is wetlands, major
filling would be necessary for the development. The adjoining waters
of Estero Bay and San Carlos Bay are "relatively pristine Coastal
estuaries". Estero Bay has been classified as a State Aquifer Preser-
ve68 and both estuaries have been recommended for protection by an area
of critical state concern designation.
In its evaluation recommending disapproval of the project, the
Southwest Florida Regional Planning Council concentrated heavily on
potential harmful impacts on the water quality of the estuaries. Drain-
age from impervious surfaces and grassed areas carrying a heavy load of
pollutants would eventually be routed into the estuaries. The filter-
ing effects of a large interceptor canal proposed by the developer was
untested and subject to theoretical dispute. Because of this threat to
the water quality of San Carlos Bay and the Estero Bay Aquatic Preserve,
the Regional Planning Council recommended denial of the proposed pro-
Another impact evaluated by the Council was the proposed develop-
ment's demand on the area's fresh water supplies. The developer pro-
posed to meet the sizable potable water demands of the project by draw-
ing upon a nearby aquifer known as the Sandstone Aquifer, the capacity
of which, according to the U.S. Geological Survey, had not been ascer-
tained. In the event sufficient water could not be obtained from the
Sandstone Aquifer, the developer proposed to build a reverse osmosis
plant to desalinate waters from the lower Hawthorn and Suwannee aquifers.
These aquifers, however, are also of unknown capacity and currently
serve several other nearby communities. Non-potable water for irriga-
tion of open spaces and recreational areas in the project would be
drawn from effluent discharged from a planned sewage treatment facility,
or barring that, from the lower Hawthorn and Suwannee aquifers. The
conclusion of the Planning Council staff with respect to these plans
was that insufficient data existed to determine whether the project
would unduly burden areawide water resources and for that reason the
Council recommended against approval.
Based on the negative recommendation of the Regional Planning
Council, the Lee County Board of County Commissioners refused to issue
a favorable development order. The developer appealed to the State
Cabinet, and a state appointed hearing examiner held lengthy hearings.
Considerations of water quality and availability played a mojor role in
the hearings and the local decision to prohibit the development was
The Environmental Lands Act represents an ambitious first step

67. Development of Regional Impact Assessment, the Estuaries, No. 6-747-6, South West Florida Regional
Planning Council, April, 1976, (hereinafter DRI Assessment), 1. Net density was estimated to be 13.0
dwelling units per acre.
68, See the Florida Aquatic Preserve Act of 1975, la. Stat. 56258.35-46 (1977).
69. Estuary Properties, Inc, v. Bd. of City Comr of Lee County, Case No. 76-1560, Division of Admnlistrative
Hearings, Order of the Land and Water Ajudicatory Comission, December 8, 1977.


toward the integration of land and water management. Powers to control
land use under the ELA are being used to protect the quality and quan-
tity of water in areas of critical state concern and in watersheds af-
fected by developments of regional impact. Developers and local govern-
ments are having to consider the availability of water supplies and
similar resources in planning for the construction of developments of
regional impact.

There are three major planning efforts underway in Florida in addi-
tion to the areawide waste treatment management plans being developed
pursuant to Section 208 of the Federal Water Pollution Control Act.70
The Division of State Planning has developed a comprehensive state plan,
which includes sections dealing with land development and water. The
Department of Environmental Regulations adn the five regional water man-
agement districts are preparing a state water use plan. Finally, local
governments are preparing local comprehensive plans. With so many dif-
ferent agencies and levels of government planning the fate of a single
interrelated resource--Florida's land and water--it is difficult to
avoid conflicts. This section of the report will analyze these planning
efforts and their relationship to one another.

The State Water Plan

One of the most important sections of the Florida Water Resources
Act of 1972 is its requirement for the development of a State Water
Plan.71 The State Water Plan is to be a marriage of the State Water
Quality Plan and the State Water Use Plan. The State Water Quality
Plan contains water quality standards, objectives and guidelines with
a specific program of implementation. The State Water Use Plan is in-
tended to be "an ,integrated, coordinated plan for the use and develop-
ment of the waters of the state...." Studies of existing water re-
sources, existing and contemplated uses of water, and such other sub-
jects as drainage and flood plain zoning are to be the basis for plan-
ning. The Water Plan should be developed in cooperation with the Divi-
sion of State Planning "as a functional element of a comprehensive
state plan."72
The water plan has extensive implications for the use of land. It
is impossible to plan for water management without knowing how land use
will change. One reason lies in the close physical relation between
the quantity and quality of water for a region and the character of
land use within it. Another reason is that the demand for water for
such purposes as domestic uses, agriculture, industrial processing, or
effluent discharge, is a direct function of land use. If land uses
which do not require large quantities of water continue or develop, then
there is less need for water managers to develop plans for such measures
as additional storage capacity, backpumping, deep aquifer storage, de-

70. Federal Water Pollution Control Act Amendments of 1972. Pub. L. No. 92-500, codified at 33 U.S.C.A.
71. Fi. Stat. 1373-036 (1977); A Model Water Code 70-71 (1972).
72. Fla. Stat. 5373.036(1) (1977).


salinization, or restrictions on usage.73 Similarly, those who are
making projections for land use must be informed of how much water
will be made available for human use. Water is a very real physical
limiting factor to growth. There are also limits to how much water
can be taken from a hydrologic system without seriously degrading its
ecological values. Those who are managing water resources have an ob-
ligation to set restrictions on the amount of water which may be di-
verted from the natural system and to inform affected land use planners
of this limit to their growth.74 Otherwise, growth and the associated
demand for water might continue unchecked until none of the water
necessary for estuarine productivity was allowed to reach the sea, none
of the water necessary for the maintenance of fish, plant, bird and
animal communities would be allowed to remain in the ground, swamps,
and streams, and the state was a dry, parched desert ringed by irrigated
golf courses and highrise condominia on the coast. Although the situa-
tion might never deteriorate to a level as bad as that just described,
some less terrible version is sure to develop unless adequate plans are
developed and implemented.
Unfortunately, the legislature failed to appropriate sufficient
funds for the state to undertake the detailed, comprehensive water re-
source planning required by the statute. The two largest and relative-
Sly affluent water management districts, on the other hand, invested con-
siderable sums of money in planning. As a result, these water manage-
ment districts now have very strong ideas about how water should be
managed within their respective areas and are vigorously resisting at-
tempts by state-level agencies at this late date to impose principles
of water management which conflict with those advocated in the develop-
ing water use plans of the district.

The Florida State Comprehensive Plan

The State of Florida, like most other governments, has historically
operated without a clear conception of its goals and policies. Problems
have been addressed on an ad hoc basis and usually only after a crisis
has developed. Of course, it is impossible for any organization to be
either efficient or effective without knowing what state of affairs it
is seeking to promote over the long term. Without such guidance it is
difficult to evaluate the performance of agencies and conflicts are
likely to arise. For example, the agency which builds roads may be con-
Sstructing expressways and thus promoting construction in areas which
water management agencies need to protect as locations for aquifer re-
Having commendably recognized the need for planning, the legisla-
ture passed the Florida State Comprehensive Planning Act of 1972.75
This Act ordered the Division of State Planning76 to prepare a state
comprehensive plan designed to "provide long-range guidance for the or-
derly social, economic and physical growth of the state by setting

73. See e.g.. South Florida Water Management District South Florida Water Supply and Development Plan (Draft
74. Many of the goals and policies expressed in Ch. 373 will be subverted if such a limit is not set. See
Division of State Planning, Staff Analysis of the South Florida Water Use Plan (August 10, 1977).
75. Ch. 72-295, Fla. Laws, Fla. Stat.1S23.011-.013 (1977).
76. The Division of State Planning is in the Department of Administration, Fla. Stat. 123.0112(2), (1977).


forth goals, objectives and policies.77 The State Comprehensive Plan is
not intended to be final, but must be continually revised to reflect new
information and values.
The comprehensive plan has been prepared as a compilation of eigh-
teen sections, each of which focuses on a particular area of concern
such as agriculture, economic development, environmental resources, land
development, utilities and water.78 Legislative approval is required
before the plan "or parts or revisions thereof" may become effective as
state policy.79 Although this requirement is an obvious roadblock to
the changes in state policy that are needed, the final state comprehen-
sive plan which results will be greatly strengthened by overt legisla-
tive sanction. At this date the Governor has approved a plan and sub-
mitted it to the legislature. Powerful interests lobbied against the
plan, however, and approval was not forthcoming this year.
Major shifts in state policy have been proposed. The water section,
for example, proposes that it should be state policy:
In substantially unaltered watersheds, maintain
runoff/infiltration and other hydrologic rela-
tionships (soil profile, rate of soil erosion
or impoverishemnts, etc.) to achieve as nearly
as practical the natural hydrologic conditions
to provide for a balance of urbanm agricultural,
and natural systems recognizing that natural
productivity is optimized under unaltered con-
Several sections call for closer coordination of land and water
management. The plan itself aids attainment of that goal by formula-
ting a comprehensive and consistent state policy regarding all aspects
of land and water management. Unfortunately, there is no strong re-
quirement that the actions of state government, much less the plans and
activities of local and regional agencies, be consistent with the plan.

The Local Government Comprehensive Planning Act of 1975

The Local Government Comprehensive Planning Act of 197581was en-
cated to stimulate and guide the development and implementation of com-
prehensive plans by local governments. It contains two essential man-
(1) Local governments are required to adopt
comprehensive plans.82
(2) Development must conform to the plan.83
The Local Government Comprehensive Planning Act specifies a number
of elements which must be included in a plan. Each element encom-
passes a particular problem for which the plan is required to propose
a solution. A land use plan element is required to designate the "pro-

77. Fla. Stat. 523.0114, (1977).
78. Exec. Order No. 76-29; 6 Fla. Admin. Code 22E-3.02.
79. Fla. Stat. 823.013 (1977).
80. The Florida State Comprehensive Plan, 174, (February 9, 1978).
81. Fla. Stat. 163.3161-.3211 (1977).
82. Id., 5163.3167.
83. Id., 163.3194(1).


posed future general distribution, location, and extent of the uses of
land..." for various categories of use. Another required element is
the projection of needs for sewer, solid waste, drainage, and potable
water facilities and the correlation of these needs with the land use
element. The plan must specifically address the problems of how to
S provide the necessary facilities. A conservation element must be in-
cluded which provides for "the conservation, development, utilization,
and protection of natural resources in the area..." Additional re-
quired elements are a traffic circulation element, a recreation and
open space element, a housing element, a utility element, and, for those
areas lying in the coastal zone, a coastal zone protection element.
There are also a number of "optional elements", which may be included in
a plan, but are not required. Optional elements are allowed for plan-
S ning such aspects of the transportation system as mass transit, ports,
airports, bike paths, pedestrian walkways, and off-street parking.
Other optional elements provide for public services and facilities,
public buildings, recommended community design, area redevelopment,
safety, historic preservation, economic development and other appro-
priate needs.
One of the most important aspects of the Act is its requirements
for consistency and coordination. All elements of the comprehensive
plan must be consistent with each other.85 For example, the land use
element should not plan for industrial development of an area which the
water supply element plans to use for aquifer recharge. Similarly,
the road builders could not plan to pave a valuable wildlife habitat
slated for preservation.
Coordination with the plans of adjacent local governments, the
region and the State, is also required as "a major objective of the
local government comprehensive planning process."86 The plan must "in-
clude a specific policy statement indicating the relationship of the
proposed development of the area to the comprehensive plans" of those
other entities. An intergovernmental coordination element, "showing
relationships and stating principles and guidelines to be used in the
accomplishment of coordination...", must be prepared. This element
is required to "demonstrate consideration of the particular effects of
the local plan..." upon the development of adjacent areas, the region
A and the state comprehensive plan.87
Intergovernmental coordination is further encouraged by provisions
for review of the plan by other governments, state agencies and the
Publicc.8 Sixty days before adoption, a copy of the plan must be sent
to the Division of State Planning, to the Regional Planning Council,
to the county if the plan is prepared by a municipality or special dis-
trict, and to any other government agency in Florida which has requested
one. The Division of State Planning then must distribute the plan to
Other appropriate state agencies for their review and comment. The
Division of State Planning is required to comment in writing on the
Plan, specifying any objections and making recommendations for modifica-
tion. Review by the Division of State Planning should be primarily di-
84. Id., $163.3177.
85. Id., 5163.3177(2).
86. Id., 5163.3177(4).
87. Id., 1163. 3177(6)(h).
88. Id., 1163.3184.


rected toward the local plan's impact on the state comprehensive plan
and the activities of other state agencies. Similarly, the Regional
Planning Council may comment on the relationship of the local plan to
any regional comprehensive plan and the county may comment with respect
to impacts on its own comprehensive plan. The local governing body must
respond in writing to these comments within four weeks and can take no
action to adopt the plan for another two weeks. All comments and replies
are public documents. In addition, procedures to facilitate public par-
ticipation and input to the plan are mandated.
A single paragraph negates much of the good work, however. The
first sentence states, "the governing body shall consider all comments
received from any person, agency or government". The second sentence
makes it clear who has the ultimate power in this process. The local
governing body may "...adopt, or adopt with changes or amendments, the
proposed comprehensive plan...despite any adverse comment received".
By thus reaffirming the power of local governments, the legislature al-
lows them to stifle meaningful planning and continue the traditional
intergovernmental uncoordination. A better approach would have been to
require the local plan to be consistent with state plans, regional plans
and the plans of other local governments.89 An entity established at
the state level could have been established and given authority to mod-
ify local plans to achieve consistency and relieve conflict.90
One certain prediction is that the plans which are eventually a-
dopted will not moulder unused on the dusty back shelves of local li-
braries. They have a powerful legal status.91 All land development
regulations, all land development and "all actions taken in regard to
development orders" must be "consistent" with the adopted comprehensive
plan. Even development undertaken by the local government itself must
be consistent with the plan. Although the precise meaning of the con-
sistency requirement is not clear,92 the courts are specifically author-
ized to consider the relationship of the comprehensive plan to challeng-
ed governmental action93 and much litigation will probably focus on this
In many respects the Local Government Comprehensive Planning Act
was a tremendously progressive step for environmental regulation in
Florida. Because of this Act, many local officials who would not other-
wise do so are sitting down and grappling with the problems of growth. A
An ineffective solution is no solution at all, however, and may actually
cause harm by having created an illusion that the problem has been sol-
ved. The deficiencies must, therefore, be examined.
First, the substance of the plan is not controlled. A local govern-
ment could go through all the requisite motions of planning and never
change the existing pattern of development. There is good planning
and there is bad planning. Good planning involves looking at natural
systems and human needs and from that insight deciding if, when, where

89. See Madelkr, The Role of the Local Comprehensive Plan in Land Use Regeulation, 74 Mich. L. Rev. 900,
965-71 (1976).
90. See, e.g., Ore. Rev. Stat. 9197.325(1) (1973).
91. Fla. Stat. 51163.3194,.3197 (1977).
92. See generally, Catalanto and DMento, Mandating Consistency Between General Plans and Zoning Ordinances:
The California Experience, 6 ABA Nat. Res. Layer 455-66 (1975); Jarlock, Consistency with Adopted Land Use
Plans as a Standard of Judicial fvi: The Case A ainst. 9 Urban L. Ann. 69-109 (1975); Note, Comrehen-
sive Land Use Plans and the Consistency Requirement, 2 Fla. St L. Re 6-88 (1974).
93. Fla. Stat. i163.3194(3)(a), (1977).


and under what conditions development may proceed.94 Bad planning
recites platitudes, juggles statistics, and then draws a few multi-
colored maps in whatever configuration local real estate developers
have demanded. There is no method, other than by persuasion, by which
the state can ensure that "good" planning takes place.
Second, there is no effective method to ensure consistency of a
local plan with the plans of other local governments, the state, or re-
gional entities. Voluntary cooperation is to be commended where it oc-
curs. For example, the South Florida Water Management District and
counties on the lower east coast appear to be working closely together
to ensure the compatibility of local comprehensive plans with the re-
gional water management plan.95 Provisions for formal review will help
to encourage coordination. In many instances, however, plans are go-
ing to be incompatible and inconsistent despite sincere efforts at co-
ordination. Consider the following hypothetical example. Key Condo
is a largely undeveloped by incorporated island which is adjacent to
Metropolis. The only access to Key Condo is a small road which winds
through a quiet residential area of Metropolis. The citizens of Metro-
polis use Key condo for recreation, and the extensive grass flats sur-
rounding the island are essential to the viability of commercial fishing
based in Metropolis. The plan developed by Key Condo's local govern-
ment would allow the island to be covered with high rise condominiums,
which would create horrendous traffic problems in Metropolis, destroy
the recreational opportunities for the citizens of Metropolis and
cripple the fishing industry. There is no way, under the present Act,
to ensure that such a conflict will be resolved at the planning stage.
Instead, a prolonged series of skirmishes on such issues as the DRI
process or applications for consumtive use of water would ensue. A
powerful state level entity could resolve such conflicts when they do
occur and greatly encourage their voluntary resolution.


The need for .coordinating land and water management has two aspects
which must be differentiated. The first deals with improving the quali-
ty of the decisions that are made regarding development.96 Land use
decisions should be made with regard to how they will affect water and
other resources. Similarly, decisions regarding the use of water should
reflect a consideration of their affect on land use. All of our social,
economic, legal, business and political decisions should be grounded in
an awareness of and respect for environmental values. They usually are
not, however, because existing environmental regulations are inadequate
to accomplish the necessary integration.
The second aspect is a need to coordinate and integrate those en-
Svironmental regulatory programs which we do have.97 They cannot be ef-
fective unless they are administered cohesively, nor is the public like-
ly to countenance expanded environmental regulation unless the existing
programs work smoothly and efficiently.
From this perspective, Florida's experience demonstrates the need
94. I. HcHarg. Design with Nature (1969).
95. So. la. Water Mnagement Disttrit Bulletin, No. 9 (Oct. 1977).
96. Te Perit xploson upra note 10 at 75.
97. Id., at 78.


for and implementation of both types of coordination. Certainly the
new environmental laws have greatly improved the quality of development
decisions. Evaluation of a development of regional impact, for example,
is comprehensive. But relatively few developments qualify as DRI be-
cause of higher thresholds and statutory exemptions. Development in
areas of critical state concern is greatly improved as a result of the
new legislation, but the legislature restricted application of it to a
mere 5% of the state. These and other major deficiencies in Florida's
landmark legislation should be recognized and corrected to ensure the
holistic approach to land and water use that is needed.
At the same time, it should be recognized that the various agencies
of government in Florida have been working diligently to coordinate
their efforts. Several examples may demonstrate the use of techniques.
Administrative reorganization and consolidation is one means of
coordinating the activities of separate agencies.98 The Environmental
Reorganization Act of 197599 sought to improve the activities of water
management agencies in this way by consolidating administration of con-
cumptive use decisions under the Water Resources Act with water quality
regulation in the Department of Environmental Regulation. The boundar-
ies of DER's four regional water quality districts were roughly drawn
to approximate the boundaries of the water management districts and the0
headquarters of the two are being located together wherever possible.
The regulation of water quantity and water quality are thus, at least
theoretically, integrated into one agency.
The danger of such an arrangement, however, is that a conflict be-1
tween agencies may be merely transformed into an intraagency struggle.0
Although the Reorganization Act ostensibly put the water management dis-
tricts under the administration of the Secretary of DER, it gave him
little real authority over them. Basic disagreements over water manage-
ment Policy therefore remain unresolved.
Increased contact and communication between agencies is a prerequi-
site to effective coordination of their activities. Another coordin-
ating technique,therefore, is to establish procedures by which one
agency may review and comment on the work of another agency. Conflicts,
as well as opportunities to share information or otherwise cooperate,
may thus be identified and acted upon. Many agencies in Florida routin-
ely solicit the advice of other agencies. Legislation mandates some of
this type of coordinating activity. For example, the Local Government
Comprehensive Planning Act mandates review of local plans by the Divi-
sion of State Planning affected regional planning councils and adjac-
ent local governments.103 Most of the water management districts are
also reviewing local plans regarding water resource issues despite
the Legislature's failure to require such review. Other review and
comment functions are being formalized through interagency agreements.
Many of the water management districts, for example, have agreed with
regional planning councils to review proposed developments of regional
98. Groping through the Maze, supra note 12 at 32.
99. 1975 Fla. Laws, Ch. 75-22.
100. DeGrove, Administrative Systems for Water Management in Florida (1978).
101. Groping through the Maze, supra note 12 at 33.
102. EPA, Processes, Procedures, and Methods to Control Pollution Resulting from All Construction Activity 143
TrEtober 1973).
103. Fla. Stat. 163.3184(1) (1977).



impact. Under the agreements, the water management district reviews
the projects as they relate to water or issues involving water.
An analysis is submitted to the council and used by it in the same way
that it would use a report by its own staff. The water management dis-
tricts and DER are also attempting to harmonize their permitting activi-
ties by each routinely reviewing and commenting upon the permit applica-
tions received by the other.
Interagency task groups or councils may also serve to exchange in-
formation, air points of view, and resolve conflicts. One such council
has been formed in Florida to develop a unified approach for restoration
of the Kissimmee River valley.104 This coordination council consists of
the heads of the Department of Environmental Regulation, the Department
of Agriculture, the Department of Natural Resources, the Game and Fresh
Water Fish Commission, and the South Florida Water Management District.
It is presently working to develop a restoration plan. Another example
of the use of councils to achieve interagency coordination has been
evident in the development of the Florida State Comprehensive Plan.
Policy Advisory Committees, with representation from all other involved
agencies as well as private individuals, were created to advise the
staff of the Division of State Planning and to review its work.105
Much effort went into reconciling the different views that were thereby
brought forward.
Finally, integration of a number of permitting procedures is being
accomplished in Florida. DER .and the U.S. Army Corps of Engineers are
jointly processing dredge and fill permits.106 A single application
may be made to either agency, from which it will be forwarded to the
other. Joint public hearings are held whenever possible. There is
active collaboration on the decision regarding whether to issue a per-
mit. In addition, enforcement efforts are being coordinated.


It is becoming increasingly evident, in Florida and elsewhere, that
land and water cannot function independently. They must be coordinated.
The need is to develop a comprehensive, holistic approach to the use of
our resources. Planning must necessarily be the basis of such a program.
Every effort should be made to develop meaningful and consistent poli-
cies and objectives in the numerous plans now being prepared. Because
coordination is necessarily an ongoing process, it must be continued in
the implementation and administration of the various prdrams. Conflicts
should be squarely addressed and resolved. Opportunities for coopera-
tion should be fully exploited. The key to attainment of these goals
is to establish more and better links of communication between the agen-
cies with responsibilities in this area. In this way we can "Ensure
that land and water are managed in an integrated manner".107

104. See, McCaffrey, The Kissimmee River: Progress in New Directions, 5 Fla. Env. & Urban Issues 1-4, 16-18
(Nov./Dec. 1977).
105. The authors participated in the work of the Policy Advisory Committee for the Water Section.
106. Fla. Admin. Code, 17-4, Memorandum of Understanding Between Corps of Engineers and Florida Department of
Environmental Regulation On Permit Processing and Enforcement in the Waters of the State.
107. Supra note 4.

Under Section 311 (i), P.L. 92-500

By Jerry R. Rogers, M.ASCE

A summary of factors are outlined concerning an oil pipeline
break in 1974 and a major oil spill below a reservoir. A subsequent
suit was filed by the pipeline owners against the United States to
recover cleanup costs.

The pipeline was initially laid underneath the river in 1931.
The concern for erosion scouring and exposing the pipeline caused
the pipeline company to re-lay the pipeline to lower depths in 1958.
About eleven river miles upstream from the pipeline crossing, con-
struction on a large dam began in 1965 with closure in 1968. The
consulting firm for the reservoir owner, a state authority, began
working on a reservoir gate operating procedure with drawings dated
April 1969. The reservoir was primarily a water supply reservoir
with basin plans for a federal flood control reservoir upstream.
The permit for reservoir water was obtained from the state in 1960.
Twelve large tainter gates which could be opened provided reservoir
regulation and passage of flood waters. A three-level water supply
inlet with outlet channel allowed releases up to 4000 cfs down a
separate channel which joined the main channel downstream from the
spillway. The reservoir filled to its normal design level of 131.0
ft. M.S.L. on November 3, 1971.
Section 311 (i) of the 1972 Federal Water Pollution Control Act
(P.L. 92-500) (9) states where an owner or operator (of an onshore
facility from which oil or a hazardous substance is discharged) acts
to remove such oil or substance, the owner or operator can recover
the costs of removal if he can establish in a suit brought against the
U.S. Government in the U.S. Court of Claims that the discharge "was
caused solely by:

Associate Professor, Department of Civil Engineering,
University of Houston, Houston, Texas


!_____-- ______I


1. an act of God [an unanticipated grave natural disaster
Sec. 311 (a) (9)],

2. an act of war,

3. negligence on the part of the U.S. Government, or

4. an act or omission of a third party without regard to
whether such act or omission was or was not negligent,
or of any combination of the foregoing clauses."

Evidently, Section 12 (j) of S.7, the predecessor of Section
311 (i), was modified by the Conference Committee (H.R. Report No.
91-940, 91st Congress, Second Session, p. 6, 41, 91) which added the
two clauses allowing for cost recovery due to a non-negligent act of
a third party and any combination of the foregoing circumstances

The pipeline owner (plaintiff) lawyers' suit stressed that the
pipeline breakage and oil spill were due to a combination of an act
of God (weather) and an act of omission of a third party (reservoir
regulation by the state authority). Details of these contentions
will be outlined in subsequent sections.


The act of God is defined in Section 311 (a) (9) of the
F.W.P.C. Act as "an act occasioned by an unanticipated grave natural
disaster." It has been well established that any extraordinary
flood or sudden inundation which no human foresight or prudence
could anticipate and which no human power could stay constitutes an
act of God (7, 5, 8, 6 respectively):

A 1. St. Louis San Francisco Ry. Co. v. Ozark White Lime Co.,
9 S.W. 2d 17, 18, 177 Ark. 1018, 1928.

2. Jacoby v. City of Gillette, 174 P. 2d 505, 512, 62
Wyo. 487, 1946.

3. Schweiger v. Solbeck, 230 P. 2d 195, 200, 191
Or. 454, 1951.

4. Long v. Pennsylvania R. Co., 23 A. 459, 461, 147
Pa. 343, 1892.

Legal cases have shown that in order to be an act of God, such
flood or sudden inundation need not be unprecedented but need only


be unexpected and extraordinary (10, 3, 2, 1 respectively):

1. Southern Ry. Co. v. Cohen Weenan & Co.,
157 S.E. 563, 564, 156 Va. 313, 1931.
The Court decided:
"An Act of God as the term is known to the
law, is such an unusual and extraordinary
manifestation of the forces of nature that
it could not under normal conditions have
been anticipated or expected It does
not have to be unprecedented."

2. Ford v. Wabash Ry. Co., 300 S.W. 769, 774, 318
Mo. 723, 1927.
3. Cover v. Platte Valley Public Power & Irr. Dist.,
75 N.W. 2d 661, 669, 162 Neb. 146, 1956.

4. Baum v. County.of Scotts Bluff, 109 N.W. 2d 295,
301-302, 172 Neb. 225, 1961.

An U.S.G.S. streamflow level gage with hourly data measurement
was located one mile from the pipeline crossing and about ten river
miles from the dam. The nearest official National Weather Service
rain gage was located about 10 miles northeast from the dam. These
official data sources were cited frequently during the trial.
In addition, there were a rain gage and a lake level recorder
next to the dam monitored by the owner of the dam. The dam rain
gage and lake level gage were the primary data sources for operating
the $81 million reservoir until 1975-76. Additional rain gages
(around the reservoir recommended in the 1969 reservoir gate oper-
ating procedure) were not added until 1975-1976 along with an ad-
ditional lake level gage. (Note: Wind forces can pile up water along
the dam making a single level gage reading inaccurate. Similarly,
multiple rain gages yield better estimates of rain falling directly
on the reservoir than one point location gage at the dam.
Stream flow gages upstream from the dam were located approx-
imately 100, 136 (a major data reference point), 184, and 263 miles.
These gages provided many days of advance notice of stream flow
measurements before entering the reservoir. However, record keeping
for upstream flows for the reservoir operator log was incomplete in
1974. The primary source for 1974 operating decisions was the single
lake level gage at the dam (with input from the single rain gage at
the dam). The reservoir gate operating procedure utilized lake level



changes before a response with gate openings.


The pipeline owner-plaintiff claimed:an Act of God influenced
the pipeline break on February 14 since:

1. The 1973 rainfall of 2.0424 m (80.41 in.) was the highest
since the 1937 record began.

2. The four-month (Oct.-Jan.) prior rainfall was the highest
of record.

3. The January rainfall was the highest since 1949.

After 0.88 inches of rainfall on January 26, there were no
significant, sustained rainfalls until after the pipeline break.

The water level measured one mile from the pipeline crossing
dropped from El. 39 on January 28 to El. 12.62 at 6 a.m. February 14.
This drawdown of 26.38 ft. in 17 days or 1.55 ft./day was the high-
est experienced drawdown of record. The following table shows the
stream flow levels prior to and during February 14 at the gage one
mile from the pipeline crossing.

(See Table 1 on the following page)

The water levels downstream from the reservoir remained fairly
stable, receding very gradually from 12.80 ft. at 6 a.m. on Feb-
ruary 9 to 12.62 ft. on February 14. Then, with the sudden closure
of reservoir gates about 6 a.m. February 14 where the flow dropped
from 3000 cfs to 500 cfs, the water level downstream dropped 0.72 m
(2.37 ft.) in 12 hours to 10.25 ft. at 6 p.m. This rapid drawdown
Sof 5.74 ft./day on February 14 was almost four times the 1.55 ft./day
from January 28 to February 14, 1974 which had been the highest draw-
down of record.


The streambank soils at the pipeline crossing were primarily
river alluvium (sandy silts to silty sands to sandy clays). Such
soils are permeable enough to allow sustained rainfalls and high
river levels to saturate them, but have a sufficiently low per-
meability to resist drainage when sudden drawdown occurs. The heavy
rains through January 26 and the high water levels downstream of the
reservoir left the streambanks saturated. The rapid drawdown of
26.38 ft. in 17 days and then the shock drawdown of 0.72 m (2.37 ft.)
in 12 hours on February 14 due to the reservoir closure preceded a
6:45 p.m. mass rotational slide of saturated, heavy earthen bank
(180,000 tons). This north bank slide carried the pipeline which

Table 1. U.S.G.S. 1974 RIVER LEVELS

1974 Stage, In Hundredths of Ft., At Indicated Hours

Date 1 2 3 4 5 6 7 8 9
2-09 AM 1286 1286 1283 1282 1284 1280 1284 1283 1281
PM 1280 1278 1280 1273 1275 1279 1280 1273 1277
2-10 AM 1273 1274 1284 1271 1276 1273 1277 1276 1273
PM 1274 1274 1271 1262 1270 1260 1268 1273 1268
2-11 AM 1286 1272 1268 1272 1267 1270 1270 1269 1271
PM 1270 1269 1268 1269 1269 1269 1262 1269 1268
2-12 AM 1260 1268 1268 1266 1268 1268 1268 1267 1267
PM 1267 1267 1265 1266 1266 1267 1264 1267 1266
2-13 AM 1267 1267 1267 1266 1260 1265 1265 1265 1266
PM 1264 1262 1257 1265 1265 1264 1264 1264 1264

2-14 AM 1261 1264 1261 1264 1261 1262, 1263 1245 1214
PM 1109 1089 1070 1054 1038 1025 1012 1010 1039

2-15 AM 1194 1210 1225 1235 1245 1254 1245 1219 1191
PM 1095 1077 1059 1041 1031 1030 1029 1043 1110

* Important data reference points for drawdowns prior to the pipeline failure
at 6:45 p.m., February 14 one mile away from the U.S.G.S. gage.

10 11 12
1281 1281 1277 S
1275 1275 1280
1274 1273 1272 z
1270 1271 1269
1268 1269 1271
1267 1268 1268 z
1268 1265 1267
1263 1267 1263
1265 1266 1265
1263 1264 1263

1193 1162 1135
1074 1116 1144

1164 1139 1116
1158 1201 1230

1Ci~PYLP"~-~---srer~~6L~I~LILIIILLliY -_BU~-iil~%ll_-~ill111~*m*ir~.-)1~~11

U --------d I~, )~an~3aaarr~mrrr*rcr~rrrs

*s~nc~-cnxPBg-4-.----------p ~l~bll~ 1C-9iq~*m*ro~*arr-



broke about 75 ft. from the water's edge and approximately 30-40 ft.
deep into the streambank.


The air temperatures recorded at the dam indicated a very cold,
freezing condition during the evenings of February 8-12 when the
daily low temperatures were 27, 26, 24, 25 and 320 F, respectively.
A warming trend occurred with daytime maximum temperatures for
February 11-14 of 70, 73, 74, 78 OF. On February 13, the maximum
temperature was recorded at 5 p.m., which indicates the warmest
weather was in the late afternoon coincidental with the low drawdown
which created the unstable streambank conditions. This occurred soon
after five evenings of below-freezing temperatures.


In depositions, the manager of the dam and the assistant manager
testified that the rip-rap replacement occurred in the center of the
section immediately below the spillway, and this was not an urgent
repair. If so, the repair could have been postponed until drier
conditions and extended, stable low-flow conditions resulted. The
deposition testimony also indicated that 1,600 cfs flow or less would
not interrupt the rip-rap repair. (Note: on February 14 the flow had
been dropped from 3,000 cfs to 500 cfs over the spillway).

One obvious alternative(which could have maintained the 2500 -
3000 cfs releases throughout the day while repairing rip-rap)would
have been to release flows through the water intake structure (which
has a 4,000 cfs capacity). This flow down a separate channel would
join the main channel downstream of the rip-rap repair area. In fact,
the reservoir operator logs showed this was done five days later on
February 19.

There were other occasions where reservoir closure caused low-
flow problems, but problems of another nature. Downstream contracting
Sirrigators complained of reservoir closures when flow dropped below
their 1000 cfs/day agreement during May-August and caused some salt-
water intrusion problems.

Another major contention in the pipeline suit was that the full
reservoir flood storage pool (131-134 ft.) was not used to cut off
flood peaks by retaining flood waters in existing storage space.
Instead, this water was discharged directly downstream causing higher
levels and saturating more of the streambanks. On January 26, 1974
the maximum reservoir elevation was only 131.95, and the maximum
elevation ever reached was 132.6 in 1973. With the top of the dam at
145 ft., there would still be 11 ft. of freeboard (which exceeds the
5 ft. minimum recommended for earthen dams) above the 134.0 elevation.


This would accommodate a.60 mph wind set-up, wave height, and wave
run-up. There is 295,000 acre-ft. of storage between elevation 131.0
and 134.0 which can and should be used for flood storage. Under
proper conditions, it may also be possible to utilize induced sur-
charge storage by raising the tainter gates slowly enabling some ad-
ditional storage in the reservoir.

Another contention at the trial involved the lack of a pre-
release policy. Data from upstream stream flow gages can be utilized
in stream flow routing computations downstream with pre-releases
emptying the flood pool for later storage equivalent to the amount
released. However, the operating procedure actually in use was the
late response method of waiting to note elevation changes at the dam
before modifying gate openings. This late action resultedin higher
downstream releases and peaks during flood passage than were needed.

There are several references [U.S. Department of the Interior
(12) and Tschebotarioff (llfot1procedures for reservoirs which advo-
cate gradual flow changes downstream rather than rapid drawdown and


The Department of Justice attorneys in Washington,D.C. based
much of the defense on the pipeline owner's 1972 photograph of a
tension crack located 35.05 m (115 ft.) from the water's edge.
Witnesses said the pipeline company should have recognized the soil
slippage two years before the February 14, 1974 mass rotational
earth slide. Flattening the river bank slope by removing some of the
streambank overburden and placing stone rip-rap along the lower bank
could have been remedial measures. The pipeline company argued that
the crack was a long distance [35.05 m (115 ft.)] from the water's
edge and 81 ft. from the top of the bank and that pipeline inspection
personnel had no soils training to interpret the tension crack.

With regard to an additional problem, a pipeline company employee
reactivated the pumps at 8:45 p.m. which dumped more oil on top of
the original two-hour spill. The pipeline company did not try to
recover the cost of this later increment, but filed for the $440,000
costs attributable to the first portion of the spill.

Other defendant's witnesses were produced to testify against
contentions concerning rainfall, drawdown, and operating data pre-
sented by the pipeline owner (plantiff). In addition, pipeline
material experts testified on the condition of the pipeline and its
placement in 1958.


A major reservoir utilizing only lake level changes at a single
gage at the dam for gate openings cannot respond in time to minimize
downstream flooding. Upstream flow measurements and flow routing for


pre-releases when downstream conditions permit can be undertaken in
conjunction with a network of 4-5 rain gages around the lake and at
least two lake level gages.

Gradual decreases in reservoir releases must be scheduled during
an extended dry and low flow period if repairs are to be made below
a dam. Consideration should be given for releases through separate
water intake and outlet channels. Rapid drawdowns by gate closures
following wet periods may cause streambank failure downstream. All
existing reservoirs, particularly non-federal reservoirs, may need
re-evaluated reservoir operating procedures.

Section 311 (i), P.L. 92-500, does provide the opportunity for
an onshore oil or chemical owner to recover costs of spill clean-up
from the U.S. This can be done in the U.S. Court of Claims when
the spill is related to an Act of God (weather related) and/or a non-
negligent third party as well as negligence on the part of the U.S.


Dr. Ray Ayers, who graduated from the University of Houston,
performed many of the preliminary calculations on rainfall and draw-
down described in this paper. Fundamental research on rapid draw-
down has been lacking. A major experimental research project on
rapid drawdown of streambanks is currently underway at the U.S. Army
Engineer Waterways Experiment Station, Vicksburg, Mississippi.
Initial tests will be performed with a uniform model sand dumped
under water to maintain the proper density. Extensive monitoring of
pore pressures and other parameters for flow net analysis with
varying drawdowns to the time of bank slippage will be maintained.
Subsequent tests may be performed on compacted fill, more dense
material, and possibly silt, clay, and gravel. Experimental design
is being performed by Dennis G. Markle, Walter C. Sherman, Jr. and
Dr. Edward B. Perry. Coordination and review is done by John L.
Grace, Jr. and N.R. Oswalt. These experiments should yield more
answers to rapid drawdown conditions causing streambank failures.



1. Baum v. County of Scotts Bluff, 109 N.W. 2d
295, 301-302, 172 Neb. 225, 1961.
2. Cover v. Platte Valley Public Power and Irr. Dist.,
75 N.W. 2d 661, 669, 162 Neb. 146, 1956.
3. Ford v. Wabash Ry. Co., 300 S.W. 769,
774, 318 Mo. 723, 1927
4. H.R. Report No. 91-940, 91st Congress,
Second Session, (p. 6, 41, 91), 1972.
5. Jacoby v. City of Gillette, 174 P. 2d
505, 512, 62 Wyo. 487, 1946.
6. Long v. Pennsylvania R. Co., 23A.
459, 461, 147 Pa. 343, 1892.
7. Saint Louis San Francisco Ry. Co. v. Ozark White Lime Co.,
9 S.W. 2d 17, 18, 177 Ark. 1018, 1928.
8. Schweiger v. Solbeck, 230 P. 2d
195, 200, 191 Or. 454, 1951.
9. Section 311 (i), P.L. 92-500, Federal Water Pollution Control Act


33 U.S.C. 1321 (i), 1972.
Southern Ry. Co. v. Cohen Weenan and Co.,
157 S.E. 563, 564, 156 Va. 313, 1931.
Tschebotarioff, G.P., Soil Mechanics, Foundation and Earth Struc-
tures, pp. 186-187, 1951.
U.S. Dept. of the Interior, Bureau of Reclamation, Design of
Small Dams, pp. 258-259, 2d Ed., 1973.




by Mark J. Schiffman(l), Associate Member

In 1971 the New Hampshire Department of Public Works and Highways
requested a determination from the United States Coast Guard as to
whether certain inland waters in New Hampshire were navigable waters
of the United States for the purposes of Coast Guard jurisdiction. The
request was made in connection with the State's proposed construction
of a bridge to replace an older bridge which then spanned "the narrows"
of Lake Winnisquam in central New Hampshire.

In 1975, armed with historical evidence and its interpretation of
the law, the Coast Guard declared the subject waterways were, in fact,
navigable and subject to the jurisdiction of the United States.

This determination set off a storm of controversy that embroiled
the resources of the State of New Hampshire against those of the federal
government. It pit individual citizens against what was considered a
faceless Washington bureaucracy; it raised the issue of a sovereign
states rights being usurped by a federal takeover; and, it engulfed
the entire United States Congress and two Presidents in the fracas.

This paper examines the incident, its developments and eventual con-
clusion whereby the federal jurisdiction claimed was dropped. The
issues which hinged upon the application of federal legislation and
appropriate judicial interpretations of "navigability" are discussed.
Beyond these legal considerations, however, several potential social
and economic issues were perceived by New Hampshire's layman citizenry
and are also identified. These include:

Loss of New Hampshire boat registration fees

Reduction in police enforcement

Pollution of the waterways


The Merrimack River is the largest river within New Hampshire. It
serves a watershed extending from the southern face of the White Moun-
tains down through the central portion of the state. After passing into

(1)Mr. Schiffman is an attorney and professional engineer. He is Mana-
ger of Environmental Services for the Environmental Assessment Council,
Inc. of New Brunswick, New Jersey.


Massachusetts, it turns abruptly to the east and flows into the Atlan-
tic Ocean (see Figure 1). The influential role that this river has
played in New Hampshire's history is indicated by the presence of some
of the state's largest cities located along its lower reach. These
include: Concord, the state capital; Manchester, the largest city in
New Hampshire; and, Nashua, the state's second largest city.

Approximately 20 miles north of Concord the Winnipesaukee River
joins the Pemigewasset to form the Merrimack. This is the beginning of
the famed "Lakes Region" of New Hampshire. It is an area noted for
Lakes Winnipesaukee and Winnisquam, major year-round recreation and
tourist meccas. People from Massachusetts and other populated areas
of New England are drawn to the Lakes Region to vacation and play.
In late 1971 "Mosquito Bridge", as it was called, was in a deterior-
ation state. Its condition was important not only from a safety stand-
point, but from an economic view as well. Mosquito Bridge carried the
two lane highway U.S. 3-N.H. 11 across the narrows of Lake Winnisquam.
It was a major link in the highway routes leading to the Lakes Region.

The New Hampshire Department of Public Works and Highways proposed
to replace Mosquito Bridge with a new bridge. The U.S. Coast Guard,
part of the Department of Transportation, was consulted as to whether
Lake Winnesquam and its associated waters were "navigable waters" and
therefore within Coast Guard jurisdiction. The inquiry was necessary
because a permit would be required for the construction or alteration
of any bridge-over navigable waterways, as specified in the Bridge Act
of 1946 (33 U.S.C. 401). This determination is not optional, but is
required whenever a structure is planned over waters which may be "navi-

It must be noted that the Merrimack River and other connecting
waterways are not fully navigable in the physical sense. There are
many places of extensive rapids, waterfalls and dams.

In September 1975 the Commander of the First Coast Guard District
in Boston wrote the Governor of New Hampshire to inform him of the Coast
Guard's determination that Lake Winnisquam, Lake Winnipesaukee, the
Merrimack River and all interconnecting waterways were in fact navigable
waterways under Coast Guard jurisdiction. The Commander did indicate,
however, though the Coast Guard would now be required to enforce Federal
laws, this determination did not remove the State of New Hampshire from
its ability to also exercise concurrent jurisdiction.


How could the Coast Guard declare these waterways navigable when
certainly a Coast Guard cutter cannot traverse waterfalls and white
water rapids? The answer is that the Coast Guard turned to a long
series of court decisions and historical evidence to declare that the
two lakes and interconnected waterways are properly classified as navi-










In essence, the courts have adopted two important concepts. They

1. To be navigable waterways need not be navigable in their
natural state as long as there exists the "feasibility of
use for interstate commerce after reasonable improvements
which might be made"; and,

2. Once a waterway is declared navigable that status is re-
tained regardless of any construction, such as the build-
ing of dams which might deter practical commercial travel.

These concepts have evolved from a long series of court deci-
sions. The historical development of the law is as follows:

At common law, a river or stream in which the tide ebbs or flows,
or as far as the tide ebbs and flows, was deemed navigable. 3 Kent,
Comm. 412; Waring v. Clarke, 46 U.S. (5 How.) 411 (1878); Orleans v.
Phoebus, 36 U.S. (11 Pet.) 175 (1837).

Early in our nation's history the common law test, (adequate for
a country surrounded by tidal water such as England),was rejected as
inadequate to define the authority of the national Government over the
many inland lakes and rivers of the United States. In 1870 the Supreme
Court adopted a navigability-in-fact test. The Daniel Ball, 77 U.S.
(10 Wall.) 557 (1870); The Propeller Genesee Chief v. Fitzhugh, 53 U.S.
(12 How.) 443 (1851). Focusing on the navigable capacity of the river
in question, the Court in The Daniel Ball stated:

"These rivers must be regarded as public navigable rivers in
law which are navigable in fact. And they are navigable in
fact when they are used, or are susceptible of being used,
in their ordinary condition, as highways for commerce, over
which trade and travel are or may be conducted in the custom-
ary modes of trade and travel on water. And they constitute
navigable waters of the United States within the meaning of
Acts of Congress, in contradistinction from the navigable
waters of states when they form in their ordinary condition
by themselves, or by uniting with other waters, a continued
highway over which commerce is or may be carried on with
* other states or foreign countries in the customary modes in
which such commerce is conducted by water." Id. at 563.

This basic definition was enlarged in 1874 to include water with
the capability or potential for public use, regardless of the extent
and manner of actual use. The Montello, 87 U.S. (20 Wall.) 430. In
that case, involving the Fox River in the State of Wisconsin, it was
argued that because, in the river's original condition, navigation was
not possible due to the presence of falls and rapids (which were later
obviated by locks, canals, and dams, so as to furnish an uninterrupted
highway for commerce conducted in the ordinary modes), the river could
never be navigable within the Daniel Ball test. Rejecting this argu-
ment, the Court stated that even though navigability in the river's
natural state was the correct legal test, the river was nonetheless
navigable because, prior to the improvements when some portages had


been necessary, a large and successful interstate commerce had never-
theless been carried on along the river by means of large flat bottom
boats. Adding a refinement to the navigability rule, the Court con-

"...the true test of the navigability of a stream does not
depend on the mode by which commerce is, or may be, conducted,
nor the difficulties attending navigation. If this were so,
the public would be deprived of the use of many of the large
rivers of the country over which rafts of lumber of great
value are constantly taken to market.

The capability of use by the public for purposes of trans-
portation and commerce attends the true criterion of the
navigability of a river, rather than the extent and manner
of that use. If it be capable in its natural state of being
used for purposes of commerce, no matter in what mode the
commerce may be conducted, it is navigable in fact, and be-
comes in law a public river or highway." The Montello at 441.

Several cases resulted in the now well settled rule that rafting,
or even log drives, can constitute "commercial use" within the meaning
of the navigability test. St. Anthony Falls Water Power Co. v. Water
Commissioner, 168 U.S. 349 (1897); Wisconsin Public Service Corporation
v. Federal Power Commission, 147 F. 2d 743 (1945).

The federal test was again expanded in 1921 when the Supreme Court
formulated the "indelible navigability" rule in Economy Light & Power
Co. v. United States, 256 U.S. 113 (1921). Under this rule, a water-
body's past history of commercial use makes it navigable despite sub-
sequent physical or economic changes preventing present use for commer-
cial purposes. Id. at 123.

The onset of massive federal programs in the 1930's involving flood
control, hydroelectric, and reclamation projects was seen to require an
even broader basis for federal regulatory control. Thus, the Supreme
Court in United States v. Appalachian Electric Power Co., 311 U.S. 377
(1940), after affirming that navigability should remain a question of
fact (and that no strict legal test for navigability could be developed
that would meet the exigencies of each situation), expanded the scope
of "navigable waters" to include those that could be made navigable
through "reasonable improvements" even though such improvements had not
been completed or even authorized. "The power of Congress over Commerce
is not to be hampered because of the necessity for reasonable improve-
ments to make an interstate waterway available for traffic." Id. at 408.
All writers on the subject agree that the Appalachian decision caused
a significant expansion of the navigability test.

In Appalachian, the Supreme Court reversed the decision of two
lower courts which found non-navigable the New River, a watercourse
flowing through Virginia and West Virginia. The case began when the
Appalachian Electric Power Co. decided to construct a water power dam
on the New River without complying with certain licensing requirements
of the Federal Power Commission. In the district court, the Government
urged that the phrase "susceptible of being used, in their ordinary


condition" articulated in The Daniel Ball, supra, should be construed
to include the possibility of finding navigability in the light of the
effect of reasonable improvements, but the Court thought the argument
inapplicable and the Circuit Court of Appeals agreed.

On appeal the Supreme Court reversed stating that "to appraise
the evidence of navigability in the natural condition only of the water-
way is erroneous. Its availability for navigation must also be con-
sidered." Id. at 407. The Court went on to set out the following
analysis establishing that a waterway could be considered navigable for
federal purposes even though improvements were necessary to make it so:

...A waterway, otherwise suitable for navigation, is not
barred from that classification merely because artificial
aids make the highway suitable for use before commercial
navigation may be undertaken. Congress has recognized
this in 3, 16 USCA 796 (8), of the Water Power Act by
defining "navigable waters" as those waters "which either
in their natural or improved condition" are used or suit-
able for use. The district court is quite right in saying
there are obvious limits to such improvements as affecting
navigability. These limits are necessarily a matter of
degree. There must be a balance between cost and need
at a time when the improvement would be useful. Nor is it
necessary that the improvements should be actually com-
pleted or even authorized. The power of Congress over
commerce is not to be hampered because of the necessity
for reasonable improvements to make an interstate water-
way available for traffic. Id. at 407.

It should be noted that this "feasibility test" of the Appalachian
Case need not be applied to the waterway's condition as it exists at
the present time, but may be applied to any era in the waterway's his-
tory during which the "cost-benefit" ratio might have been satisfied.
Hence, if the requisitesof the test are satisfied under prior existing
facts then a present finding of "navigable waters of the U.S." can be
supported. Under the Appalachian test it is not necessary that the
improvements have been actually completed, or even authorized. What
is essential is that there must have been a favorable balance between
the cost and need at a time when the improvement would have been use-
ful. This is particularly important where obstructions such as dams
have later been erected in waterways, since once a waterway has been
determined to be a navigable water of the U.S., it retains such status
even though it may no longer be used for commerce, either because it
falls into disuse or as a result of changes in its condition. Economy
Light and Power Co. v. U.S., 256 U.S. 113 (1920).

Put another way, in applying the Appalachian test to a water sys-
tem, consideration of types of travel on water is not confined to any
one particular mode. The operation of something seemingly as crude as
a log raft may be evidence of susceptibility to substantial commercial
navigation. Likewise, a determination of "navigable waters of the
United States" will not be negated because of occasional difficulties
in navigation experienced by vessels. The presence of obstructions
such as falls, rapids, or sandbars will not affect a determination if


the cost-benefit ratio has been met at some point in the waterway his-
torical development.

The Appalachian case is the most recent Supreme Court pronouncement
on the federal test for navigability, but subsequent Circuit and Dis-
trict Court cases have produced further elaboration. In particular,
the second Circuit in Rochester Gas & Electric Co. v. FPC, 344 F.2d,
cert. denied 382 U.S. 832 (1965) formulated a concise statement of the
navigability test which synthesized the various rules set forth in The
Montello, The Daniel Ball, Economy Light & Power, and Appalachian.

That decision defined a waterway as a "navigable water of the
United States" if (1) it is presently is being used or is suitable for
use, or (2) it has been used or was suitable for use in the past, or
(3) it could be made suitable for use in the future by reasonable im-
provements," as a highway for foreign commerce. Id. at p. 596.
(emphasis in original).

This statement of the test has been widely quoted and followed in
the Federal courts from 1965 to the present. See Stallworth v.
McFarland, 360 F. Supp. 920 (W.D. La. 1972); Spiller v. Low, 328 F.
Supp. 54 (W.D. Ark. 1971); U.S. v. Crow, Pope and Land Enterprises,
340 F, Supp. 25 (N.D. Georgia, 1972), dismissed on appeal 474 F. 2d 200
(5th Cir. 1973); Pennsylvania Environmental Council v. Bartlett, 315 F.
Supp. 238 CM.D. Pa. 1970); Pitship Duck Club v. Town of Sequin, 315 F.
Supp. 188 (D. Ore. 1969); U.S. v. Pot-Nets, 363 F. Supp. 812 (D. Del.
1973); U.S. v. Stoeco Homes, 359 F. Suppl 672 (D. New Jersey 1973);
U.S. v. Granite State Packing, Supra, P.F.Z. Properties v. Train, 393
F. Supp. 1370 (Dist. D.C. 1975).

The regulations for determining what constitute navigable waters
of the United States for the purposes of Coast Guard jurisdiction have
incorporated this test by defining navigable waters, in relevant part,
as those:

Internal waters of the United States not subject to tidal
influence that:

(i) Are or have been used, or are or have been susceptible
A for use, by themselves or in connection with other waters,
as highways for substantial interstate or foreign commerce,
notwithstanding natural or man-made obstructions that
require portage, or

(ii) A governmental or non-governmental body, having ex-
pertise in waterway improvement, determines to be capable
of improvement at a reasonable cost (a favorable balance
between cost and need) to provide by themselves or in con-
nection with other waters, highways for substantial inter-
state or foreign commerce. 33 CFR 12.05-25 (a)(3).

These two rules may be summarized by stating simply that waterways
need net be "navigable in fact" to be declared navigable, and that once
they are navigable that is the way they remain.



The history of the Merrimack River Basin supplied extensive docu-
mentation for the Coast Guard to apply these legal concepts and to
determine that the subject waterways are navigable. It should be
remembered that at.the beginning of the 19th century the idea of in-
land water transportation over lakes rivers, and manmade canals was
considered vital in the development of the Country's economy and its
new frontiers. The best example of this is the Erie Canal. Numerous
studies of other canals were in fact constructed.

With regard to the New Hampshire question, there are some perti-
nent facts. In 1813.a canal and river system was envisioned to connect
Boston, Massachusetts with Lowell, Massachusetts, with Concord, New
Hampshire, and finally with the Lakes Region of New Hampshire to "open
the fertile shores of Lake Winnipaski". A canal did in fact operate
between Boston and Lowell up to the early 1840's. In addition, some
boats travelled still further north up the Merrimack River from Lowell
to Concord. On the lakes themselves, in 1882 and again in 1929, the
predecessor of the Army Corps of Engineers dredged a channel in Lake
Winnipesaukee toenable steam ships to operate on the lake and to reach
one of the larger growing towns of the area.

In addition to these federal actions, the State of New Hampshire
was engaged in developing inland waterways. Charters were issued as
early as 1796 to develop the upper Merrimack Basin to render it navi-
gable for boats of 10 tons.

Armed with these, and other historical data the Coast Guard was
led to the conclusion in 1975 that there was sufficient evidence of
both Federal and State intent to develop a commercially practical water-
way between Lake Winnipesaukee and Lowell, Massachusetts. This intent
brings these waters under the definition of "navigable waterways of the
United States" and thus are subject to the jurisdiction of the U.S.
Coast Guard, it concluded.


The two rules of law and the accompanying decision could have been
taken as mere puffing by the Coast Guard. Navigability, in terms of
actual commercial use of the waterways, has been all but effaced by the
extensive highway network and railroad facilities in the area. There
is today, however, some occasional commercial pleasure boating on Lake
Winnipesaukee. Therefore, in view of these facts, what does a finding
of navigability mean to the Coast Guard for a waterway network that now
and most likely in the future will never be used for commercial pur-
poses on-an-interstate basis?

The answer is that commercial travel actually has little to do with
the Coast Guard determiantion. The finding of navigability really has
implications extending from a 1971 law, The Federal Boat Safety Act.

This law was intended to bring uniformity to registration and
safety requirements for boats on those waters which are under the jur-
isdiction of the Coast Guard. At the time of its passage, little



controversy surrounded this law. Ironically, it was sponsored by New
Hampshire's Senator Norris Cotton when it was introduced in the Senate.

The assumption of the Coast Guard jurisdiction would have affected
three basic areas of regulation under the Federal Boat Safety Act.
These three areas are:

1. Commercial Vessels;

2. Aids to navigation; and

3. Recreational boating.

The first of these affected areas of regulation, commercial vessels
consists primarily with the licensing of operators and the inspection
of vessels to insure compliance with various regulations pertaining to
safety features, equipment, and crew competence. For example, under
this heading the number and type of life preservers to be carried are
specified and depend upon the size and use of the boat involved.

The second basic affected area is Coast Guard enforcement of aids
to navigation regulations. Such enforcement is coordinated with the
State. On-site inspections are completed on a periodic basis, as in
the case of commercial vessel inspection, and are also performed in
instances of specific complaints. Primarily, these regulations insure
that only authorized devices (e.g. buoys) are established which conform
with proper shape, color, and light characteristics. Also involved
here are the construction and marking of bridges to be certain of proper
water clearances and safety of navigation.

The third affected area of regulation concerns recreational boat-
ing. It was anticipated by the Coast Guard, in the New Hampshire in-
stance, that its participation in recreational boating activities would
not of necessity be extensive as Coast Guard and New Hampshire boating
laws essentially parallel each other. It was anticipated the State
would continue its already well developed boating law enforcement and
training program on the lakes in question. The Coast Guard merely
expected its Boating Safety Detachment would pay periodic visits for
law enforcement and boat safety training purposes as long as appropriate
new Hampshire State Law enforcement presence continued. The Coast
Guard would also consider safety patrols by the Coast Guard Auxiliary.

The area in which the greatest change was expected to take place,
however, would be in the numbering system used to identifying recrea-
tional boats. The Federal Boat Safety Act requires each state to in-
stitute a federally-approved numbering system on its navigable waterways.
New Hampshire had not done this. It was therefore expected by the
Coast Guard it would become the issuing authority on New Hampshire
navigable waters and it would have to do so on any navigable lake.

To summarize briefly and from an overview perspective, the Federal
Boat Safety Act of 1971 was intended to bring uniformity to boat regis-
tration and safety requirements on navigable waters under the jurisdic-
tion of the Coast Guard. Its primary feature requires boats to carry
registration numbers of each side of the bow and, second, it requires


certain safety features on the boats. States are invited to actively
participate in carrying out the Boat Safety Act. To participate,
states must use an approved numbering system and, further, enact a Model
State Boat Act, provide reasonable enforcement and report to the federal
government. In return the states may collect the registration fees and
keep a portion of those fees.


Under New Hampshire law the State numbers the motors of vessels.
It does not number the hulls of vessels. Further, New Hampshire will
not accept a number issued by another state on her sole state waters.

New Hampshire is one of three states, (Alaska and Washington are
the other two), which do not have reciprocity agreements when it comes
to boat registration. For example, a Massachusetts resident can travel
by car to Maine and carry his boat on a trailer. In Maine, the Mas-
sachusetts man simply has to drop his boat in the water and no questions
will be asked. But when that same Massachusetts resident comes to
New Hampshire he must first stop at a marina and pay a $6.50 registra-
tion fee, have his boat inspected, and have an appropriate plate
attached to his boat before he can go for a cruise.

Under a federally approved system, all vessels equipped with pro-
pulsion machinery must carry numbers on the bow with such numbers is-
sued by the proper authority. Further, these numbers are acceptable
in other states for up to 60 days.

As New Hampshire's numbering system did not meet these requirements,
the Coast Guard would have been obligated to issue numbers on New Hamp-
shire's navigable lakes. The Coast Guard already conducted this prac-
tice on New Hampshire's coastal waters.

If the Federal Boat Safety Act was applied to New Hampshire, the
out of state boater who carried the proper Coast Guard numbers on the
bow of his boat would be able to get into the "navigable waters" of
the State without registering his boat in New Hampshire.

During this developing controversy, it was estimated by some that
approximately 25,000 boats utilized the two lakes and nearly half were
owned by out-of-staters. A Coast Guard Commander said New Hampshire
would receive perhaps $100,000 annually if the approved numbering sys-
tem was adopted. This was only an estimate as the actual amount would
depend upon the number of boats registered by New Hampshire and the
amount of the registration fee.

Other persons disagreed sharply with these estimates. They con-
cluded Coast Guard jurisdiction would mean a potential loss of money
and a potential loss of control for New Hampshire.

There are two other differences between state and federal regula-
tions which should be mentioned briefly. First, the applicant for New
Hampshire's numbers must certify under penalty of perjury what type of
marine sanitation device his boat carries. Second, New Hampshire's
Director of Safety Services may suspend the State registration at his


discretion whenever he has just cause to believe the holder of the reg-
istration is incompetent or is operating dangerously or improperly.
Under Section 23 of the Federal Boat Safety Act, however, only those
items listed in that Section may be imposed by a state as preconditions
to the issuing of the boat registration number. These limitations are
not as strict as New Hampshire's rules.


In September 1975, New Hampshire's Governor Meldrim Thomson was
presented with a fait accompli. The Coast Guard's letter indicated it
was not investigating the potential extension of its jurisdiction. It
was simply asking for an opportunity to discuss how to carry out the
concurrent jurisdiction.

Thomson moved quickly. He publicly indicated his displeasure at
the lack of opportunity to discuss with the Coast Guard the change of
waterway status prior to its decision.

In December 1975 he wrote to the then Secretary of Transportation,
William Coleman. Governor Thomson said: "To me it is clearly another
case of the federal government making a unilateral decision affecting
a state without any consultation, public hearing or advanced notice."
He said the decision was a bad one in three respects:

1. It would cost the state money in lost boat registration

2. He and his staff disagreed with the historical evidence
used by the Coast Guard in making its decision; and,

3. He considered this action a blatant usurpation of the
sovereignty of the State of New Hampshire.

To the Coast Guard, it made what it had deemed to be an administra-
tive decision clearly within its authority. What is received was an
extremely angry and vociferous governor and an outraged New Hampshire

During the winter of 1975-1976, the problem mushroomed. The New
Hampshire House of Representatives said the Coast Guard move was an
"unwarranted usurpation of sovereign states rights". It requested the
Governor to institute a court injunction against a change of status.
It asked New Hampshire's congressmen to involve themselves in the ques-

The winter of 1975-1976 was a political season. New Hampshire is
known as the state with the first presidential primary. With no re-
sponse from Secretary of Transportation Coleman, Governor Thomson urged
New Hampshire citizens to greet President Ford, who was planning to
pay a campaign visit to the State in early February, and demand an
explanation for what Thomson termed the "Federal invasion". The gover-
nor said "we should settle for no hints or promises which might be good
only through February 24," the date of the Presidential Primary.


Following these political pronouncements in early February, Secre-
tary Coleman wrote to Governor Thomson and said that perhaps a court
suit might be the most appropriate way to solve the problem. He pro-
mised to cooperate if New Hampshire did in fact file such a suit. He
said he would look into the problem of potential lost revenues and per-
haps an administrative exemption would be granted to New Hampshire.
Alternatively, he said New Hampshire might regain any lost revenue by
imposing a boat ramp fee in lieu of the registration fee. Finally,
he suggested perhaps an amendment to the Boat Safety Act could be pre-
sented to Congress to alleviate New Hampshire's problem.

Thomson responded by saying the whole matter could be solved quite
simply by having the Coast Guard withdraw its determination of navi-
gability. With such a withdrawal there would be no need for commercial
action or a court suit.

During this time, New Hampshire's congressmen were under consider-
able pressure from their constituents. They issued statements which
were, in general, somewhat sympathetic to the Coast Guard position.
Congressman Norman D'Amours, for example, acknowledged the Coast Guard
had acted properly and according to the law. He said, however, though
the Coast Guard was technically correct, "I feel that it is nothing
short of absurd for them to move in on the basis of these lakes being
termed navigable. This is a classic example of the way bureaucracies
tend to expand their tentacles until they are totally out of control."

D'Amours went on to state that the Connecticut River, which forms
the boundary between New Hampshire and Vermont, was under Coast Guard
jurisdiction. The Coast Guard was so understaffed, he contended, that
it sent only one inspection team for a total of three days in a two
year period to the Connecticut River.


Along with major political leaders speaking out, New Hampshire
boat owners and other individual citizens were also clammering for ac-
tion. Two normally opposing groups, the Lakes Region Marine Dealers
and a conservation organization known as the Clean Water Association,
were allies on this issue.

Both groups agreed Lakes Winnipesaukee and Winnisquam were malor
natural assets of New Hampshire. They were concerned about the lakes'
future. Not only were the lakes recognized as major sources of revenue
by the marine dealers, but the dealers and the conservationists agreed
it was in both their best interests that the water quality of the lakes
be maintained.

One of the major environmental breakthroughs in maintaining the
water quality of New Hampshire lakes was a state law which required
holding tanks for boats with toilets. The purpose of this law was to
insure waste would not be dumped into the lakes.

The conservation group's spokesman expressed concern the Coast
Guard would not enforce New Hampshire's environmental laws. A Coast
Guard Commander siad at a meeting with the marine dealers and the


conservation group that it would enforce federal laws, the state hold-
ing tank law would remain in effect and New Hampshire would still have
the authority to enforce its own laws. However, under the federal
registration system, New Hampshire probably would not be permitted
to refuse registration for a boat that discharged raw sewage into the

In the meantime, the New Hampshire Department of Safety, which
has responsibility for enforcing laws on water, providing safety
programs, and putting out markers and buoys, expressed concern over
concurrent jurisdiction. A Safety Department spokesman said he did
not have any idea how much authority his Department would actually
have if the Coast Guard took over. Most importantly, he did not know
where the money would come from to support the Safety Department's

The controversy continued to mushroom. New Hampshire's political
leaders continued to speak out, newspapers continued to headline the
story and individual citizens continued to write to their congressmen,
Secretary Coleman and President Ford.

The criticism continued all throughout February and March 1976.
At the end of March, President Ford was extremely agitated, described
as 'hopping mad" by one of his staff members, when reading his morning
news summary he discovered the Coast Guard controversy was still con-
tinuing in New Hampshire. The staff member said "It's unusual for the
President to get involved with the local affairs of a state but he was
really upset when he saw that the problem...had not been settled."

On March 31, 1976, Secretary of Transportation Coleman issued a
statement to the effect that it was in the interest of a just and fair
resolution of the issue that the question of navigability be reopened.
The purpose of the reopening was to assess new facts and evidence per-
taining to the historic material relevant to the Coast Guard's deter-
mination of navigability and to review further the applicable law in
light of these such facts.

The Coast Guard, therefore, revoked its determination of navig-
ability pending further studies. The Attorney General of New Hampshire
was invited to submit any further legal or historic agruments against
navigability into the study. The Coast Guard deferred from taking
any further action under the Federal Boat Safety Act until after the
final resolution.

The state of limbo continued for over one year. Finally, in July
1977 New Hampshire's war with the Coast Guard came to a close. The
new U.S. Secretary of Transportation, Brock Adams, officially decided
the Lake Winnipesaukee-Merrimack river system does not meet the judicial
test for navigability. He ordered the Coast Guard Commandant to revoke
his 1975 order directing "takeover" of the lakes in the region. In
effect, the issue was closed.


What began as an apparently routine administrative matter when the
New Hampshire Department of Public Works and Highway proposed to construct


a small bridge across the narrows of Lake Winnisquam in the recrea-
tional center of the State, developed into one of the major contro-
versial issues in New Hampshire over the last several years. The Coast
Guard's September 1975 announcement that it would assume jurisdiction
over the Lakes Winnipesaukee and Winnisquam and the Merrimack River
system, because they were deemed navigable waters, initiated an out-
pouring of public outrage and concern. Previously opposing groups from
every sector marine businessmen to environmentalists to local law
enforcement agencies banded together to fight what was perceived to
be an unfounded and unilateral decision by a federal agency. Legal
arguments historic evidence, public input and perhaps even political
motivation resulted in the retraction of the bureaucratic decision.

The statutory and judicial definition of "navigability" which led
to the New Hampshire controversy may be recognized as a fuse for other
potential time bombs. In view of the long history of judicial opinions
from which the definition of navigability has evolved, and in view of
its questionable applicability in all instances today, it may be recog-
nized that perhaps the language of the law should be more clearly
defined. Originally, the law was probably drawn to assist states.
Today, however, the definition may not be apporpriate and may do more
harm than good.

Black's Law Dictionary, West Publishing Co., St. Paul, Minn., 1968.

Concord (N.H.) Monitor, "Coast Guard Loses Lake Control Bid", July 12,

Cretella, Captain H.A., U.S. Coast Guard, Chief of Staff, Division,
First Coast Guard District, Letter to Mr. Gary Oickle, April 27,

Kellogg, R., U.S. Coast Guard, Boating Safety Division, First Coast
Guard District, Interviews, July 7, 1977; July 12, 1977.

Laconia (N.H.) Evening Citizen, "Uncle Sam, Back Off Marine Dealers
Say", January 15, 1976;'toast Guard Drops Jurisdiction Claims,"
July 12, 1977.

Manchester (N.H.) Union Leader, "Winnipesaukee War Over; N.H. the
Victor", July 12, 1977.

New Hampshire Times, "The Great Coast Guard Caper", Vol. 5, No. 45,
April 7 thru April 13, 1976.

Schiffman, Mark J., "The Navigable Waterway Controversy Continues In
New Hampshire", Second International Waterborne Transportation
Conference, October, 1977.

Souter, N.H. Attorney General David H., Ahlgren, Assistant N.H.
Attorney General John L., and Whistler, Philip, "The Legal Status
of the Merrimack River, Lake Winnipesaukee and Connecting Water-
ways", August 6, 1976.

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