Title: Water Law and Technology
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Title: Water Law and Technology
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collection - Water Law and Technology
General Note: Box 12, Folder 6 ( Legal, Institutional and Social Aspects of Irrigation and Drainage and Water Resources Planning and Management - 1979 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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WATER RESOURCES TECHNOLOGY AND WATER LAW
By Robert E. Miller,1 Member, ASCE

One of the serious concerns in the effective management of water
resources is the interaction among economic, political and legal aspects
of such management and the technical setting of the resource. The mea-
surement of the resource, its physical control and management are engi-
neering and technological concerns. The purpose of this paper is to in-
vestigate, assess, and make recommendations regarding the input of water
resources technology into the judicial process.
The basic "data" for the study is the courtroom record of a select-
ed cross section of Colorado water law cases. The assessment of the
technological input into these cases must be subjective, but a detailed
reading of the cases will yield some insight into the pertinent techni-
cal questions and the technical information provided to the court for
deciding these questions. This is the technology the court must use in
reaching its decision.
Technology has played a dual role in water law. The physical real-
ities of technological advancement have poised problems of law to which
the legislature and judiciary have had to respond. An example of this
are developments which have made possible the increased use of ground-
water for irrigated agriculture. On the other hand, technological
change has also provided hydrologic information and techniques which
allow a level of analysis which was not heretofore possible. Courts
have not always been eager to accept improved hydrologic information.
Kinney2 relates an early Colorado case involving an adjudication of pri-
orities to water from the Cache La Poudre River. An action was brought
later for a re-adjustment on the ground that under the latest approved
formula for determining the capacity of open channels the original court
decree was erroneous, and that the quantity of water awarded should have
been much less. An eminent scholar on the subject, Professor L. G.
SCarpenter testified that the most reliable test for capacity was the
Ganguillet and Kutter formula, and that using that formula he calculated
that the ditch had been awarded almost thirty percent more water than it
could carry. The case reached the Colorado Supreme Court which affirmed
the early decree and held that the early decree was res judicata.3 The
court opinion said:4



Assistant Professor; Civil Engineering Section, Portland State Univer-
sity, Portland, Oregon.
* 2
Clesson Kinney, Law of Irrigation and Water Rights, Vol. II, Bender-
Moss Co., San Francisco, 1912, p. 1590.
3Res judicata A matter adjudged. Rule that final judgement or decree
- on merits by a court of competent jurisdiction is conclusive of rights
of parties in later suits on matters determined in the former suit.
Kinney, Supra, Note 1.






194 IRRIGATION AND DRAINAGE AND WATER RESOURCES


Hydraulics is said to be one of the most complex sciences....If we
should now correct the decree of 1882 for the reason urged, then
at the end of the next decade there may be evolved a new method of
determining the carrying capacity of ditches giving even more accu-
rate results than the Kutter formula,....and so there would be no
end to litigation, provided new and more accurate tests are dis-
covered.

Unfortunately, the courts have not always been this explicit in
giving their reasons for a decision. The litigation process is too
fortuitous and the caliber of the litigation so variable that it is not
possible, except in broad terms, to discern an evolutionary development
of the court's acceptance of technological advances.
This paper attempts to analyze the technology presented to the
court in two water law cases in the area of water quality. By selecting
cases over a wide time span it was hoped to discern some response of the
courts to technological advances, and more importantly to assess the
quality,of the technology available to the judicial decision makers.
The selection of particular cases was a matter of individual judge-
ment. Since no complete list of water cases has been compiled, a random
selection of cases would not have been possible even if it was consid-
ered desirable. Also, since the analysis of the cases was subjective in
nature, there was little reason for a statistical selection of the cases.
The most important consideration was the analysis of certain so-called
"landmark cases." Stability in law comes partly as a result of the
principle of stare decisis. This doctrine holds that when a court has
once laid down a principle of law as applicable to a certain fact situa-
tion, it will adhere to that principle and apply it to all future cases
where the facts are substantially the same. This applies not only to
the court in question, but to all lower courts. Thus, certain cases in
Colorado water law have come to greater prominence than others. Since
the exposure of these cases is almost exclusively limited to the summary
of information in the state and regional reporter, it is revealing to go
back to the trial briefs and transcripts to determine the technical in-
put available to the decision maker.

Scope and Limitations
This study was limited to cases which were appealed to and decided
by the Colorado Supreme Court. The pragmatic consideration was the gen-
eral availability of the trial transcripts for such cases. Cases which
are not appealed from the lower courts often do not have the trial pro-
ceedings transcribed from the reporter's shorthand. Furthermore, the
Supreme Court cases are generally the only cases given wide mention in
legal periodicals because of their statewide applicability. ,
The selected cases were limited to Colorado because the applicable
law and administrative procedures are developed at the state level. Al-
though all seventeen western states have elements of the prior appropri-
ation doctrine in their water laws, regional differences and judicial
vicissitudes have caused noticeable evolutionary changes in the water
laws of individual states. Furthermore, since the court decisions of
other states have no binding effect on Colorado decisions, the Colorado
court can easily dismiss such decisions as it did in an early water







TECHNOLOGY AND LAW


reuse case::

It is not necessary to analyze...cases determined by the courts of
California, in which the law is quite different, on the question of
waters, from the law of this state.

THE ENTRY OF TECHNOLOGY INTO THE JUDICIAL PROCESS

There are only a limited number of pathways through which water re-
sources technology can enter the courts. In order to analyze critically
the judicial process with regard to technology, it is important to rec-
ognize these pathways. Water resources litigation occurs in both judi-
cial and administrative tribunals. Whether administrative proceedings
are considered quasi-judicial or not, they are included in the realm of
this investigation as long as they are adversary proceedings and involve
sworn testimony, examination and cross-examination of witnesses, a tran-
script of the testimony, and findings based on the evidence in that
transcript.
It has been written that courts are often unwilling to accept as
certain, conclusions that informed scientific opinion unanimously regard
as certain.6 An exposure to the water resources litigation in Colorado
reveals it to be no exception to that general observation. It is impor-
tant to acknowledge this constraint on the importance of technology to
judicial decisions. Technology is just one input into the judicial pro-
cess. There are often economic, sociological, and even political inputs
which influence the final decision. Nevertheless, optimizing the qual-
ity of the water resources information reaching the courts would be of
great assistance to their deliberations.
There are six distinguishable, although overlapping, pathways by
which technology may enter the courts. Although it is not possible to
investigate the legal ramifications of each one, it is necessary as a
preliminary step to recognize their existence.

EXPERT AND NON-EXPERT TESTIMONY

Expert testimony is the opinion of a witness who possesses peculiar
knowledge which is not likely to be possessed by an ordinary layman.
P This ordinary layman, be he a judge or a juryman is supposed to be in-
capable of understanding the subject without the aid of the opinion of
this witness. The holder of this peculiar knowledge is called an expert
witness. The key word here is opinion. Expert evidence is an exception
to the general rule that opinion evidence is not admissible. Judges
have felt that they could insist only upon a minimum standard of expert-
a ness. The expert need not be the best expert available.
The experts seem to invariably get labeled as "defendant's experts"
and "plaintiff's experts," depending on the side who retains him. A
noted jurist once wrote that unless the opinions of the experts are
S unanimous the court is in the same predicament as if it had no help at


5Pulaski Irrigating Ditch Co. v. City of Trinidad, 70 Colo. 565, 203
SP. 681, 682 (1922).
6Charles T. McCormick, "Science, Experts and the Courts," Texas Law
Review, Vol. 29, May 1951, pp. 611-612.







IRRIGATION AND DRAINAGE AND WATER RESOURCES


all. This dilemma is aptly illustrated by the California court which
noted in a decision that the expert testimony for one litigant led them
to believe that a particular delta was rapidly becoming either a swamp
or an alkali waste, while the opposing side's experts had led the court
to believe the same delta was a "veritable Garden of Eden."7

JUDICIAL NOTICE

Judicial notice is another method of getting technical information
to the courts. The judge has the prerogative of admitting some evidence
which needs only to be presented to the court to be acceptable. Such
information as census data, geographical divisions, and physical proper-
ties of materials are examples of the type of evidence the court may ac-
cept by judicial notice.
Although judicial notice serves to expedite trials and saves some
valuable court time, obviously, what a judge may assume to be true with-
out witnesses must be kept very limited. In situations where the judge
is highly trained in a particular area of technology or if the forum is
an administrative hearing, it is possible that judicial notice could be
used to accept more complicated scientific information.

SPECIAL JURY

The special, or struck, jury has in the past been of expert aid to
the courts. A special jury is a jury ordered by the court in a case of
unusual complexity, and a struck jury is a special jury constituted by
striking out a number of names from a prepared list.8 Although such
juries were fairly common in England and have been recognized by stat-
utes in some states,9 it would seem that the specialized nature of water
resources technology and the scarcity of knowledgeable practitioners
would prevent the special jury from being useful in water resources lit-
igation. Furthermore, since almost all water resources litigation is
tried without a jury, some significant procedural changes would be
required.

SPECIALIZED COURTS

The judge himself can become somewhat of an expert if he is per-
mitted to specialize in particular kinds of cases. The level of exper-
tise to which the judge can advance is limited not only by a judge's
ability and training but also by the level of expertise which is before
him in the court.
In Colorado the seven water courts created by the Water Right De-
termination and Administration Act of 1969 (S. B. 81)10 are an example 4
of a specialized court. The water judges in Colorado also serve as
regular district court judges and are not required to have any special-
ized training in water matters. In fact, any district court judge can
be designated a water judge by the Supreme Court if the need arises.

7Tulare Irrigation District v. Linsay-Strathmore Irrigation District,
3 Cal. 2d 489, 45 p. 2nd 972, 1009 (1935).
Corpus Juris Secundum, Vol. 50, p. 717
91bid., p. 718
10Colo. Rev. Stat. Ann. 148-21-1 (et seq.)







TECHNOLOGY AND LAW


COURT APPOINTED MASTERS AND REFEREES

The previously mentioned techniques are supposed to enable the
judge to handle technical evidence more intelligently. With this tech-
nique the evidence is first ascertained by someone outside the court and
then summarized and reported to the court. The practice of referring
cases to masters has long been established, but the constraints on the
practice appear to be numerous enough that, if the increased use of mas-
ters is desired, additional legislation would be necessary.
The U. S. Supreme Court refused to hear an original jurisdiction
case over Lake Erie pollution because it claimed that it could not solve
the technical problems involved. Justice Douglas argued in his dissent
that the court had previously dealt with complex technical cases by ap-
pointing a technically qualified, but impartial, special master to judge
on the technical matters.11 The courts of Colorado have long used a
referee to investigate and report to the court the pertinent facts in
water adjudication proceedings. Colorado extended the use of referees
in water litigation in S. B. 81. Each water judge may appoint a referee
from a list submitted to him by the Executive Director of Natural Re-
sources. Although the statutes require the referees to be qualified to
"render expert opinions and decisions on the complex matters of water
rights and administration," several of the referees are lawyers with no
formal technical training. However, the referee is authorized to seek
out technical assistance in carrying out his responsibilities.

ADMINISTRATIVE HEARING

The administrative agencies have certain advantages over the courts
in deciding technical matters. The administrative officers have spe-
cialized training and experience, the agencies have large amounts of
technical data available, and the agencies have the investigative ma-
chinery necessary to determine the required technical information. In
Colorado there is a Ground Water Commission (GWC) and a Water Pollution
Control Commission (WPCC) whose findings in their respective areas are
subject to judicial review. Although there is an ex-officio nucleus of
technically trained administrative officers on these commissions, the
majority of the commission members would probably not qualify as experts
in the matters they must decide. Neither the GWC nor the WPCC have ex-
clusive jurisdiction over all matters concerning groundwater or water
pollution. The GWC has no jurisdiction over tributary groundwater, and
the WPCC would not necessarily hear cases involving common law or con-
stitutional remedies to water pollution problems.

COURT CASES

The individual court cases are recorded at various levels of detail.
From brief mention in a legal periodical through summaries in legal di-
gests, decisions recorded in the regional or state reporter series,
legal briefs written by the litigants for appellate courts, and finally
the most complete record found in the trial transcripts. The trial


11Lynn T. Alberi, "Environmental Law-The Litigation Controversy," Jour-
nal Water Pollution Control Federation, Vol. 43, No. 12, December 1971,
pp. 2463, 2466.







IRRIGATION AND DRAINAGE AND WATER RESOURCES


transcripts may consist of several thousand pages of recorded testimony.
This paper attempts to look at the technical input into two cases in the
area of water quality.

WILMORE v. CHAIN O'MINES, INC.

The Wilmore case involved an action by downstream irrigation users
to enjoin water pollution by tailings from two upstream ore reduction
mills. The Wilmore case is noteworthy mainly for the momentous effort
put forth by the defendant milling companies to protect their so-called
"right to pollute' Clear Creek. The case consumed two and one-half
years from the original trial in 1932 until the final Colorado Supreme
Court decision in January 1935.
The Chain O'Mines Mill was a ball and roller mill which crushed the
ore to a very small size. Production by the mill was about 890 tons
(8.07 x 105 Kg) of tailings per day. A second defendant was the Mattie
Mining Company which ran about 70 tons (6.35 x 104 Kg) of tailings per
day directly into Chicago Creek, a tributary of Clear Creek. Approxi-
mately twenty miles downstream and 2500 feet (762 m) lower in elevation
the water was diverted by several ditch companies to the land of the
plaintiff farmers.
The farmers contended that the mill discharges of tailings and
slime were held in suspension by the rapidly falling stream and carried
into the ditches and onto their land. They claimed that this polluted
water caused irreparable damage to their land and crops, and they sought
a permanent injunction against the pollution.
The technical issues which the trial court had to decide were
clearly drawn. First, were the tailings harmful to the farmer's vested
rights to irrigation water? Second, what were the technical alterna-
tives available to the milling companies to control their tailings
discharge?
The major contention of the farmers was that the solids carried on-
to their lands and ditches injured their vested right to irrigation
water. The defendant milling companies did not deny their tailings were
discharged to Clear Creek, but they claimed that not more than ten per-
cent of these tailings reached the farmer's land. Thus, the testimony
and evidence concerning the solids content of Clear Creek water formed a
very important part of the case. Both sides collected their own samples
and did their own analysis. The sampling method consisted of wading in-
to the creek with hipboots and a gallon jug. Usually only one sample
was taken and no corresponding discharge measurements were made. The
assayer for the mining company testified that 95% of all sediment would
settle out on the stream bottom within 4 miles (6.4 km) of the mill.
The basis for this estimate seems to be his data on the suspended solids
concentrations of 130.5 grains per gallon (2220 ppm) in the mill's tail-
race and 6.5 grains per gallon (111 ppm) in Chicago Creek several miles
downstream from the mill. The assayer made no allowance for the dilu-
tion of the relatively high quality Chicago Creek water. Indeed, he
could not have done so because no one ever measured the discharge at the
sampling points. The court was completely misled about properly inter-
preting this sediment data.
Apparently neither side was satisfied that their sampling program
indicated the amount of natural sediment carried in Clear Creek. The
mining companies were obviously interested in establishing as large a
sediment volume as possible, and the farmers wanted to establish just







TECHNOLOGY AND LAW


the opposite. Three estimates of the natural erosion of the Clear Creek
watershed above Golden, Colorado were presented to the court. The de-
fendant's experts gave natural sediment estimates of 1096 (9.94 x 105kg)
and 887 (8.04 x 10 kg) tons per day. The farmers attempted to counter
this data by calling a rebuttal witness who gave an estimate of only
238 tons (2.16 x 10kg) per day. In arriving at its own conclusion re-
garding these varying estimates of erosion the court generously charac-
terized them as an "expert guess" and then averaged the three estimates
to settle on a figure of 740 tons (6.71 x 105kg) per day. It is inter-
esting that sediment measurements made twenty years later by the U.S.G.S.
yield a figure of 232 tons (2.10 x 105kg) per day.
The court was presented with a variety of testimony regarding py-
rites in the irrigation water. Since pyrite is associated with the ore
the mills processed, the plaintiffs wanted to establish the deleterious
effect of pyrites on plant growth. A chemist had testified he found
ditch water containing 135 ppm sulphides. The plaintiffs produced an
expert chemist who substantiated their point by testifying "if sulphides
were present to any great extent, those sulphides, all authorities agree,
are deleterious to plants." The defendants had as an expert witness a
mining engineer who manufactured "Fertilo Fertilizer." He used twelve
percent pyrite in his product and further testified that "pyrite is not
harmful to plant life, it is beneficial."
Despite the large number of expert witnesses produced by the liti-
gants it was simply not made clear whether the irrigation water was
rendered chemically harmful to plant growth by the tailings discharges.
Perhaps the most useful statement in this area came from the defendant's
expert soil scientist after his damaging testimony that nothing in the
water or sediment was harmful to plant life. He told the court, "We are
going to find out something about this business so we will know...we
should have had experimental work for 5 or 10 years on this so we would
know what we were talking about."
The trial court was convinced that the tailings and slimes dis-
charged by the mills sealed the pores of the soil and as a result in-
creased the amount of water the farmers needed. The court decided that
one irrigation with "pond water" equaled six irrigations with tailings
water. Since Clear Creek was over appropriated long before 1930, there
was no excess irrigation water available for the farmers. The court
arrived at this six to one ratio on the basis of infiltration tests con-
ducted by the plaintiff, W. W. Wilmore. Wilmore was a florist and nur-
seryman who irrigated with water from Rocky Mountain Ditch. He measured
what he called "saturation power" of Clear Creek water.
The test Wilmore described to the court as "fair and intelligent"
consisted of taking two coffee cans and punching the same number of
holes in the bottom of each. He gathered soil from a section of his
land that had never been irrigated and sifted it through a fine sieve.
He put one quart of the sifted soil in each can and ran Clear Creek
water through one can and clean pond water through the other can. The
time for the pond water was constant at about twenty minutes but the
Clear Creek water took longer to pass through the soil on each repeti-
tion. Wilmore concluded that for his fields he needed six times more
water if the water was from Clear Creek.
The trial record preserves a detailed description of Wilmore's
tests. The results are interesting, but they do not tell anything about
what the court needed to know what were the insitu properties of soil








IRRIGATION AND DRAINAGE AND WATER RESOURCES


irrigated with Clear Creek water? Wilmore not only modified the soil
structure, but he removed a part of it when he put it through the sieve.
His procedure was never questioned, and the court used his test results
in its written opinion.
The trial court generally found in favor of the plaintiffs but al-
lowed the mines to continue to discharge a total of 670 tons (6.08 x
105kg) of tailings per day. There was no evidence that these discharges
would cause no further damage to the farmers.
The farmers appealed to the Colorado Supreme Court. The higher
court found the trial court's decree was inconsistent with its findings
and was without support in the evidence. The higher court remanded the
case to the trial court with instructions that the injunction be made
against all pollution.1

THE GAME AND FISH COMMISSION
OF COLORADO v. THE FARMERS IRRIGATION COMPANY

This case was decided by the Colorado Supreme Court in 1967 after
almost eight years of litigation. The case was based on an action
brought by approximately 130 plaintiffs against the Game and Fish Com-
mission. The plaintiffs were the owners of ranch and farm properties
near Silt, Colorado. Their complaint charged that the operation of the
State Fish Hatchery on East Rifle Creek had damaged their domestic water
supply.
The farmers received their water through the Harvey Gap Ditch which
diverted water from East Rifle Creek under an 1892 decree. As seen in
Figure 1, after the diversion was made the water flowed about seven
miles (11.3 km) into Harvey Gap Reservoir. Almost all the water users
served by the ditch company had cisterns into which the ditch water was
filtered and stored.

EAST LATERAL


BY-PASS


WEST LATERAL
VYGA
HARVEY GAP
RESERVOIR
HARVEY GAP
DITCH

EAST RIFLE CREEK TO RIFLE GAP
RESERVOIR


FISH HATCHERY
Figure 1 *




12Wilmore v. Chain O'Mines, 44 p. 2d 1024, 1027, 1028.







TECHNOLOGY AND LAW


During 1954 a combination Fish Hatchery and rearing unit was con-
structed on East Rifle Creek at a cost of over 1.1 million dollars.
East Rifle Creek is a typical mountain stream with excellent clarity and
low turbidity. It is unusual only in that its flow is almost always
about 40 cfs (1.13 m3/s). This large amount of relatively high quality
water enabled the hatchery to produce approximately 130 tons (1.17 x
105kg) of fish per year which was sixteen percent of the total tonnage
of fish produced by all such units in the state. In the hatchery oper-
ation almost all the water of East Rifle Creek was diverted through the
retaining ponds and raceways of the hatchery and then returned to the
stream.
The farmers filed a complaint in 1959 which sought an injunction
and damages for pollution of East Rifle Creek. The Game and Fish Commis-
sion argument against the pollution charges maintained that the hatch-
ery operation did not pollute the water used by the plaintiffs, the
farmers had the burden to prove that the hatchery operation was causing
a taste and odor problem for the downstream appropriators.
The Game and Fish Commission relied almost exclusively on the tes-
timony of State Health Department officials to establish that their
hatchery was not polluting Rifle Creek. The Health Department in turn
was guided by the state statutes which set minimum standards for the
effluent from sewage systems. These standards set levels for the coli-
form count, solids content, and biochemical oxygen demand (BOD) of sew-
age. The use of these tests was questionable since they applied stan-
dards which were only applicable to discharges containing human excreta.
Furthermore, these tests gave no direct measure of the most pertinent
parameter odor. However, in 1962 these were the only effluent stan-
dards available. Routine tests taken along East Rifle Creek and Harvey
Gap Ditch before the hatchery was constructed showed the water to be un-
safe for human consumption due to high coliform counts. The plaintiffs'
own expert witness testified that the water was not safe to drink.
The plaintiffs contended that in the fish hatchery operation
amounts of protein pellets, raw animal flesh and products such as liver,
spleen and hearts along with some dead fish were discharged into the
stream. The Health Department conducted tests of the suspended solids
which showed a small increase in solids through the hatchery, but by the
time the water reached the plaintiffs' headgate the suspended solids
level was the same as it was above the hatchery (2.7 ppm). The Game and
Fish Commission expert testified that the "miniscule" amounts shown by
the tests were actually within the accuracy limits of the test itself.
In rebuttal to this evidence a group of the plaintiff farmers devised
their own suspended solids test. The plaintiffs took a strainer used
in milk filtering, and with its absorbent cotton filter pads they fil-
tered a 10 gallon (38 1) sample of Rifle Creek water. They performed
their own tests taking a series of samples above and below the hatchery
for four consecutive days. The resulting filter pads were introduced as
rebuttal evidence (over the defendants' objection). The trial record
does not preserve this evidence, but the testimony that one sample taken
below the hatchery clogged the filter pad after straining only 5 gallons
(19 1) indicated that there was an increase in suspended solids through
the hatchery. The defendants' lawyer was confounded by this rebuttal
evidence as shown by his statement, "the so-called test is valueless as
an attempt to refute and overcome the uncontradicted scientific evidence
in behalf of the defendant Game and Fish Commission." The lawyer was
hardly qualified to make that judgement, but the court was faced with







202 IRRIGATION AND DRAINAGE AND WATER RESOURCES


the task of comparing the quantitative results of standard suspended
solids tests with the qualitative results represented by the cotton fil-
ter pads. Milk strainers are only intended to remove hair and larger
particles of dust and manure so they provide a poor indication of total
suspended matter. The filter pads were valid only as indicators of sus-
pended solids, but the court found them to be acceptable evidence. The
problem which remained unsolved was correlating the opacity of the fil-
ter pads to quantitative measures of suspended solids.
The technical information presented to the court did not establish
causal relationship between the hatchery operation and the odors in the
plaintiffs' cistern ten miles downstream. Undoubtedly, the hatchery
added small amounts of contamination to East Rifle Creek, but the evi-
dence regarding coliform counts and suspended solids were not conclusive
in establishing that the hatchery was the cause of the downstream odors.
This case is interesting in that the trial court chose to disregard
the expert testimony of the State Health Department officials that the
Fish Hatchery was not polluting the stream. In 1964 the district court
ruled in favor of the plaintiffs. The court awarded damages and costs
totaling over $68,000 to the plaintiffs plus a permanent injunction
against further contamination of the stream by the hatchery.

CONCLUSIONS

Expert testimony is by far the most common method by which the
courts obtain their technical input. In the water cases analyzed, ju-
dicial notice was used only in rare instances and then very conserva-
tively. The special jury has never been used in Colorado water cases.
In fact, almost all water cases are tried without a jury. Recent legis-
lation has established specialized courts to handle water litigation,
and these "water courts" are empowered to employ referees to make pre--
liminary determinations. The referees, however, do not necessarily
bring a high level of technical expertise to the courts.
The trial courts are presented with a wide variety of technical and
practical tests results in areas of water resources where it is unreal-
istic to expect the court to judge the accuracy, reliability, and sig-
nificance of the results. While the engineering professions have de-
voted much time and effort to the development of standardized tests, the
court may still be presented with and use the results of some "original"
test devised by an ingenious layman.
The technical problems placed before the courts in water resources
litigation are generally identifiable and amenable to a straightforward
scientific analysis. The analysis of such problems is sufficiently com-
plex to require the insight of a qualified examiner, and in some cases
an investigative effort of considerable scope. It is possible however,
that considerable savings will result from having the best possible
scientific analysis presented at the first stage of litigation. First,
the initial trial proceedings could be shortened because there would be
less need for the fragmented testimony of a large number of witnesses.
Second, the deliberations of the courts would be made easier because the
technical information would be presented in a more usable form.
There appear to be two types of problems associated with the water
resources information the courts receive. First, the presentation of
evidence is on many occasions unsound, misleading, and even grossly in-
correct. These "singular" errors are often not detected by the court or
the opposing party and become a part of the information used by the







TECHNOLOGY AND LAW 203


court in reaching its decision. Since the higher courts do not hear any
new evidence, there is little chance that such errors will be corrected
on appeal. The correction of such inaccuracies would greatly add to the
quality of the information before the court, but in the majority of the
cases studied such corrections would not be of major importance in chang-
ing the ultimate decision of the court.
The second problem is much more pervasive and difficult to identify.
It involves the overall picture of the litigation as it must appear to
the judicial decision maker. The individual bits of technology which go
together to form the case of the individual litigants must be synthe-
sized and resolved into a well reasoned argument. This responsibility
is usually assumed by the litigant's attorney, and naturally reflects a
bias toward their client's case. Thus, neither litigant's summary is
the answer to the questions before the court. The complete answer is
presumably somewhere between the two presentations, but this may not be
the case especially in environmental litigation. The public interest
may not be a part of either side's case.














STATE WATER LAWS: EFFECT ON ENGINEERING SOLUTIONS



Cecil Eugene Reinke, J.D.
and 2
Richard C. Allison, Ph.D., P.E., M. ASCE




INTRODUCTION

Water management is a most complex subject, involving

multiple decision makers and a wide range of disciplines.

Nonetheless; the desirable goals of water management are

basic, and easily agreed upon. The two fundamental consid-

erations are quantity and quality. Proper management is

required to provide an adequate supply of water, where the

water is needed. Management must also be responsible to

assure that the water available is of a quality adequate

for the uses encountered.

Since water quality requirements vary with the use of a

water, quality may be viewed in relative terms. With respect

to this consideration, management must be directed toward

abatement of water pollution. This requires user commitment,




1District Counsel, Galveston District, U. S. Army Corps of
Engineers

2Associate Professor in Public Affairs, University of 4
Houston at Clear Lake City




204






STATE WATER LAWS


either voluntary or legally mandated. It also requires the

application of engineering technology. After many years of

developing water quality concerns, we are now seeing a gradual

improvement in water quality as a result of pollution abate-

ment requirements being imposed through enforcement of the

Federal Water Pollution Control Act, under Federal and state

water quality programs which require the application of

specified standards of technology.

Water quantity problems, on the other hand, are

necessarily related to demand. Unfortunately, within our

nation water is not a resource available in sufficient

quantity to justify lack of concern. This is true in the

Eastern states, or humid regions, where there is often an

atmosphere of apparent and possibly deceptive abundance of

water. It is emphatically true in the Western, or arid

states, where water supply problems are constantly apparent.

Given this situation, and the potential for severe future

water shortage problems, two engineering solutions are

apparent. One is to obtain additional water by development

of new sources of supply. The second is to effect a more

efficient usage of the existing supply (1, 2, 3).

Both of these potential water shortage corrections can,

within varying degrees, be achieved through application of

engineering technology, and continued advancement of the

state of this technology. Our tendency over the years has

been to prefer the developmental approach; of late, however,

because of developing environmental concerns, ground water






IRRIGATION AND DRAINAGE AND WATER RESOURCES


mining problems, and increasing energy costs, we are

encountering greater interest in conservation. While there

is apparently much that can be done to achieve increased

utility from the available water supplies, this, like pollu-

tion abatement, requires user commitment reinforced by laws

that encourage, rather than discourage, the application of

engineering solutions to water supply management problems

(1, 2).



DUAL SYSTEMS OF WATER LAWS

Present state water rights laws generally address sur-

face and ground water as separate resources, and tend to

discourage exercise of the best possible water resource

management. One result is that surface water is being

inefficiently utilized. Another result is that ground water

aquifers, in several areas, are being drained without con-

straint (1, 2, 3).

The development of these current state water rights

laws is understandable. Early in the nation's history

people were not concerned with the interrelationship between

surface and ground water. They apparently neither under-

stood nor anticipated that diversion of surface water

could diminish certain ground water supplies. Likewise, it

was apparently not a matter of concern that excessive with-

drawals from underground aquifers could affect the flows

of surface streams. Water was where it was found, and the

quantity available was the quantity found. Surface water







STATE WATER LAWS


supplies were accepted as being continuous, subject to

experienced periods of rainfall and drought. Ground water

supplies, where found, were commonly treated as inexhausti-

ble. The states were not concerned with efficient use of

water; they wanted only such laws as were necessary to

determine who was entitled to the use of surface and ground

water. Satisfaction of this desire was found within the

dual system of water rights (3).



SURFACE WATER RIGHTS LAWS

Surface water rights laws expectantly vary from state

to state. Nonetheless, the effects thereof upon problems

of water management can be discussed without reference to

any particular state with, of course, recognition that

application will differ from state to state. Thirty-one

states, generally the Eastern states, control abstraction

and use of surface water by application of riparian rights

laws, while nineteen western states apply the doctrine of

prior appropriation. Of course, these designations

identify only overall systems of state laws. The several

riparian states do not have identical laws, since all have

in some ways modified common law riparian rights by legis-

lation. For example, several of these states, including

Delaware, Florida, Iowa, Kentucky, Maryland, Minnesota,

New Jersey, North Carolina and Wisconsin, affect management

of substantially all new uses of water through application

of permit systems.






IRRIGATION AND DRAINAGE AND WATER RESOURCES


Variations of approach can also be found among the

states that apply the doctrine of prior appropriation. Some

Western states follow the doctrine of prior appropriation

exclusively, and recognize no riparian rights. These are

Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New

Mexico, Utah and Wyoming. Others continue to recognize

vested riparian rights while allowing new uses only by

appropriation. These include Kansas, Missouri, North

Dakota, Oklahoma, Oregon, South Dakota, Texas, and Wisconsin.

Two states, California and Nebraska, continue to recognize

both riparian and appropriation rights and allow at least

limited new uses to be undertaken by riparian owners (2, 4).



Riparian Rights

Several aspects of the riparian rights system tend to

discourage and interfere with the application of engineering

solutions to surface water management concerns. One is

restrictive use. Riparian rights are incident to land

abutting on water. They are said to exist jure naturae,

because the land, by nature, receives benefit and increased

value by reason of the waters in the watercourse. Each

riparian landowner is priviledged to make reasonable use of

the water for any purpose, but the water may be used only by

riparians. Some states allow use by riparians on non-

riparian land, provided downstream users are not injured;

however, most states still hold that riparian water rights

may not be exercised on nonriparian land (4).







STATE WATER LAWS


Another detrimental incident of the riparian rights

system is one of uncertainty. The underlying principle of

the riparian rights doctrine is that each riparian proprietor

has a right to use the stream as it passes his property,

which right exists in common and in perfect equality with

every other riparian owner. There is no right based upon

priority of time between riparians, and no riparian gains

a superior right in relationship to another because of any

first or earlier use of the water. Since the riparian

right is based upon land ownership, it exists without regard

to actual use of any water, and is not normally lost by

failure or discontinuance of use. Where more than one use

is reasonable, regardless of when different uses start,

every riparian can be required to adjust the quantity of

water used and to share on a pro rata basis so that competing

uses can coexist. Under this system, a riparian proprietor

encounters an unavoidable risk, when making a substantial

investment based upon contemplated use of riparian waters,

because the supply is not dependable. This is particularly

true where use is made on nonriparian land. It is difficult

to determine required standards of efficiency for water use

since it is impossible to know with certainty what share of

the available water can be used on a continuing basis

(1, 2, 3).

Finally, the uncertainties inherent in the riparian

rights doctrine are magnified by the absence of an effective,

simplified, administrative mechanism for determination of






IRRIGATION AND DRAINAGE AND WATER RESOURCES


relative water rights. Disputes concerning water rights

must be resolved within the Court administered riparian

legal system. Litigation related to riparian water rights

is ponderous, expensive, and difficult to predict (1).



Appropriative Rights

Appropriative rights are not founded on land ownership,

or any claim of natural right, but are of statutory origin,

based on legislative enactments establishing rights in

those who divert water to a beneficial use. Under the

doctrine of prior appropriation, one who first lawfully

takes public waters which are subject to appropriation, and

applies the waters to a beneficial use, obtains a prior

right thereto to the extent of the appropriation. Among

Appropriators, the first in time is first in right. Once

the statutory right to use of the water is acquired it is a

permanent and continuing right which cannot be divested or

denied by the State, except upon condemnation and compensa-

tion. Since the appropriative right is a right to take

public water for beneficial use, and not a vested right in

non-use of the water, failure to use the water may result

in forfeiture or abandonment and consequent loss of the

appropriative right (3, 4).

Under the doctrine of prior appropriation, the funda-

mental weaknesses of the riparian rights system restric-

tive use and uncertainty are replaced with strength.

No one is denied the right to appropriate water. No






STATE WATER LAWS


restrictions are placed on purpose or location of use.

Most states allow transfer of appropriative rights, provided

other appropriators are not injured. Appropriators can

design and invest with security in their prior right.

Nonetheless, the doctrine of prior appropriation also tends

to foster inefficient water use. First, since all perfected

appropriative rights are vested in perpetuity, as property

rights, the states are unable apart from condemnation and

compensation to terminate existing rights in favor of other

uses which may subsequently be determined to be of greater

public interest. Second, the appropriative right may be

lost, in whole or in part, if all of the water is not used.

Because of this potential penalty for non-use, appropriators

are tempted to use all the water allowed by their appropria-

tion, even though it may be more than is really needed,

since failure to do so could result in loss of the appropri-

ative right to the excess. The combination of these two

incidents of the appropriative right tends to discourage

appropriators from devising or adopting conservation meas-

ures. To this extent at least, the appropriation system

does not lead to conservation of water resources (1, 3).



GROUND WATER RIGHTS LAWS

Rights to abstraction and use ot ground waters, like

those concerning surface water, differ substantially from

jurisdiction to jurisdiction. Ten states Connecticut,

Maine, Massachusetts, Missouri, New Jersey, Ohio, Rhode






IRRIGATION AND DRAINAGE AND WATER RESOURCES


Island, Texas, Vermont and Wisconsin still follow the

common law rule of absolute ownership. Louisiana applies a

concept of reasonable use, based upon civil law. Sixteen

states have modified the common law in favor of a rule of

reasonable use. These are Alabama, Arizona, Illinois,

Indiana, Iowa, Kentucky, Maryland, Michigan, Missouri,

New Hampshire, New York, North Carolina, Pennsylvania,

Tennessee, Virginia and West Virginia. Three states -

Arkansas, California and Nebraska have further modified

the common law by recognition of correlative rights in

ground water. Fourteen jurisdictors Alaska, Colorado,

Idaho, Kansas, Montana, Nevada, New Mexico, North Dakota,

Oklahoma, Oregon, South Dakota, Utah, Washington and

Wyoming apply laws of prior appropriation. Finally, six

states Delaware, Florida, Georgia, Hawaii, Minnesota and

South Carolina now control substantially all new uses of

water through application of permit systems (4).



The Common Law Rule

The common law rule of absolute ownership provides,

with certain exceptions, that the owner of the land surface

can appropriate any and all of the underlying percolating

waters, for whatever purpose he pleases. The exceptions

are that the owner may not maliciously take water for the

sole purpose of injuring his neighbor, and may not wantingly

or willfully waste the water. This rule holds that the

right to capture, use, or sell the percolating waters






STATE WATER LAWS


exists in each and every landowner absolutely. An owner

may use the ground water either on or off the surface land,

and may sell the water for use by others as any other

specie of property. Between proprietors of adjoining or

mutually affected lands, this rule recognizes no correla-

tive rights with respect to percolating waters. Thus, a

landowner can literally capture percolating waters in

whatever quantity he will, without regard to effect upon

other lands. If he takes so much water that his neighbor

is adversely affected, that is his right. The injury to

his neighbor is a dumnum absque injuria, or a damage for

which the neighbor can demand no compensation from the

landowner who extracted the water. If one surface owner

chooses not to pump the water, or to practice conservation

using costly technology, he runs the risk that his neighbor

will not do so, to his detriment (3).

The common law rule fosters a classic common pool

problem. Conservation is clearly discouraged while rapid

and abundant consumption is encouraged. Continued applica-

tion of the common law rule of absolute ownership can be

expected to result in the hurried exploitation of all

available-ground water (1, 2, 3).



Reasonable Use and Correlative Rights

The doctrines of reasonable use and correlative rights

represent improvements on the common law rule, but still do

not encourage conservation. Under the rule of reasonable






IRRIGATION AND DRAINAGE AND WATER RESOURCES


use the surface owner continues to be entitled to use water

under his property, or captured from adjacent owners. A

use is considered reasonable if made in connection with the

overlying land, even it it causes harm to an adjacent owner.

Water can also be withdrawn for transportation and sale off

the land, provided no injury is done to adjacent owners.

Where other owners are not affected, each landowner still

has the right to extract and use all percolating water

that can be withdrawn from his land for whatever purpose

he pleases, absent wanton and willful waste (3).

The correlative rights rule is more restrictive,

requiring not only that the use of water must be reasonable,

but that the priorities of all landowners be equitably

considered. Under this concept, where the supply is

insufficient for all competing uses, no owner may extract

and use more than his fair share of the available water.

However, even under the doctrine of correlative rights, no

restrictions are placed upon excessive withdrawals of ground

water by surface owners collectively (3).



CONCLUSIONS

The development of water rights laws that treat surface

and ground water as distinct resources may have been

reasonable, in light of past limitations on technological

understanding. The same is true of state laws that stress

entitlement without reference to efficiency of use. How-

ever, continued utilization of such laws is not reasonable.






STATE WATER LAWS


We now fully understand that no state has two unrelated

sources of water, one on the surface and one underground.

Engineering advancements have disclosed that substantially

all water is interrelated and interdependent, and have

provided the technical knowledge necessary to protect and

utilize surface and ground water as an integrated resource.

Further, we have developed the technology necessary to

assure efficient usage of all our water. Therefore, the

states should consider revisions of state water rights laws

to recognize the interrelation of surface and ground water,

and to require conjunctive use, in the interest of efficien-

cy and conservation (1, 2, 3).



Riparian Rights

The riparian states should consider the establishment

of definitive, administratively managed permit systems for

regulating the use of riparian waters. Under such a program

existing uses could be recorded, and permitted, but unused

rights should be terminated. This action could end the

uncertainties associated with the riparian rights doctrine.

Restrictions on where and by whom riparian waters can be

used should be removed, and outstanding water rights,

evidenced by permit, should be freely transferable. Permits

issued to current users should be of a length sufficient to

leave the use unimpaired, but should not be perpetual.

When permits are transferred, the new user should be

required to obtain a permit assignment, which should be






IRRIGATION AND DRAINAGE AND WATER RESOURCES


recognized for a time period at least equal to the time

remaining on the original permit, but could be extended if

justified. Waters not in current use by riparians, or

otherwise not under permit, should be made available to

prospective users, for reasonable use in the public interest,

for periods of time consistent with the use contemplated.

By recording outstanding water rights, releasing waters

from restricted use, making water available by permit,

and making water permits transferable, the riparian states

could encourage highest priority use by taking advantage

of the market system. In some instances efficient use would

be encouraged, since standards of technology could be

applied in accordance with the share of water known to be

available. In addition, taxation related to volume usage

could be imposed as an encouragement to efficient use. As

a minimum assurance against inefficient use, permits issued

for use of riparian waters should require the application

of some reasonable standard of technology.
'I

Appropriative Rights

The prior appropriation states should consider revising

their laws with respect to the granting of appropriative

rights to use of state-owned waters. Users should continue

to appropriate public waters for beneficial purposes,

through the application of permit systems similar to that

suggested for riparian states. Specifically as suggested

for riparian permits, no appropriative right should be


j
i







STATE WATER LAWS


granted in perpetuity. All appropriative rights should be

granted for a fixed period of time, which should vary

with the beneficial use, and should be sufficient to

justify the investment contemplated. Appropriative rights

should continue to be transferable, or should be made

transferable, to encourage allocation to highest economic

uses through application and the market system.



Ground Water Rights

The several states should also consider implementation

of state-wide systems requiring permits for the pumping of

ground water, which permit systems should operate in a

manner similar to and in conjunction with those suggested

for surface water. The objectives of state regulation

should encompass extension of the life of ground water

supplies, protection of the aquifers, protection of the

water rights of other landowners, and where a problem,

control of subsidence. Ground water rights should continue

to be transferable within the market system. As suggested

for surface water, permit holders could be required to pay

a tax related to volume withdrawal, and most certainly

should be required to follow conservation practices based

upon determined standards of technology. Vested ground

water rights need not be impaired, but in fact would be

enhanced and protected from abuse, by the adoption of

appropriate systems of regulation. Most importantly,

where the same state regulates the use of both surface and






IRRIGATION AND DRAINAGE AND WATER RESOURCES


ground water, permit requests should be considered in light
of the total water supply, with surface and ground water

used to mutual advantage.



Appendix I. References

1. Maloney, F. E. and Ausness, R. C., "Administering
State Water Resources: The Need for Long-Range
Planning", 73 West Virginia Law Review 209, 1971.

2. National Water Commission, Water Policies for the
Future, U. S. Government Printing Office, Washington,
D. C., 1973.

3. Reinke, C. E., An Analysis of the Impact of Legal
Constraints on Management ot Surface and Ground
Water in Texas, (unpublished thesis in library of
University of Houston at Clear Lake City)
(June 1977).

4. Trelease, F. J., Water Law: Resource Use and
Environmental Protection, 2nd. ed., West Publishing
Co., St. Paul, Minn., 1974.








4













HYDROLOGIC ROUTING:AN AID IN


WATER RIGHTS ENFORCEMENT IN CALIFORNIA

BY

Om P. Gulati, MASCE, Shige Okada, M. K. Lininger,
AMASCE and L. C. Spencer, MASCE !/

INTRODUCTION

BACKGROUND

In 1923-24, the previous driest water year of record, the
Sacramento-San Joaquin Water Supervision program was instituted by the
State to provide the data base needed to allocate the available supply.
Over the years this program was of great assistance to the various
interests in evaluating the waters covered by earlier rights and the
surpluses available for appropriation. The need for continuing the pro-
gram decreased with the construction of the State Water Project and the
Federal Central Valley Project, which increased the availability of
water during the seasons of use.
During recent years, demands on the water supply projects have
continued to increase because of the irrigation of additional lands
required to meet demands for food and fiber. There were also increased
demands for water exportation and water quality control. During a nor-
mal water year, the increased demands in California are met by over-
drafting the groundwater to a magnitude of approximately two million
acre-feet per year. The water supply and agricultural applied water
demand in the Central Valley during some critical water supply years
are shown in Figures 1 and 2 respectively.

GOVERNOR'S EIGHT POINT PROGRAM

Towards the end of the 1975-76 drought, most of the surface
reservoirs were left in a seriously depleted condition. With meager
rainfall during the last quarter of 1976 the State Governor, Mr. Edmund
G. Brown, Jr., anticipated the possibility of the drought continuing
into 1977 and declared the following eight-point drought emergency pro-
gram on December 31, 1976: 1) Activate drought information center; 2)
develop drought contingency plans; 3) prepare detailed water conserva-
tion guidelines; 4) encourage water exchanges; 5) provide emergency
water supply loans and equipment; 6) extend disaster relief; 7) hold
special hearing on delta water quality; and 8) establish a commission
for revision of California Water law.

1/ Division of Water Rights, California State Water Resources Control
Board, Sacramento, California.







IRRIGATION AND DRAINAGE AND WATER RESOURCES


C






HYDROLOGIC ROUTING


In effect, the emergency program marshalled the resources and
personnel of all state agencies in an effort to ease, as much as possi-
ble, the social and economic impact on Californians if the drought
should continue into the following year. As it developed, 1976-77
became the driest year of record, amply justifying the Governor's
foresight.
The State Water Resources Control Board (Board) role in the
Governor's emergency program consisted primarily of developing guide-
lines of water conservation in cooperation with the University of
California. In a related effort the Board undertook a program of deter-
mining the quantity of water which could be expected in critically dry
areas and protecting the priority of rights to that limited supply in
accordance with the State's water rights law.
It appeared to the Board that if the drought continued, suffi-
cient'surface water supplies would not be available to meet irrigation
and urban needs throughout the 1976-77 water year. If alternative
sources of water such as ground water, purchased or previously stored
water were not available to satisfy demands, the Board was concerned
that the diverters would inadvertently interfere with superior water
rights. Such activities on the part of water diverters would seriously
test the effectiveness of California's system of water rights law and
increase water rights activities such as: 1) complaints of illegal di-
version; 2) regular and temporary water right applications; 3) protests
on applications in process; 4) petitions for adjudication; 5) requests
to relax permit terms; and 6) public information inquiries.
To meet this unprecedented challenge, the Board established
the Dry Year Program as a function within its Division of Water Rights
(Division). This Program, designed to protect and enforce the prior-
ities of users of surface water had the following four objectives: 1)
to identify critical drought-impacted areas in northern and central
California; 2) to provide information on water conservation and shortage
to diverters in these areas; 3) to assure that the limited water supply
available would be used in accordance with established rights; and 4) to
take enforcement action against violations of permit and license condi-
tions, illegal diversions and waste or unreasonable use of water.

SCOPE

The scope of the study investigating availability of water for
satisfying water rights demands was purposely restricted to the Central
Valley. The Central Valley consisting of the Sacramento and San Joaquin
River Basins was severely impacted by the drought. According to the
runoff forecasts made by the Department of Water Resources (Department)
in May of 1977, the water supply ranged from 4 percent of an average
flow in the Cosumnes River watershed of the San Joaquin Basin to 43 per-
cent of an average flow in the upper Sacramento River Basin. Since
approximately 85 percent of the water consumed in California involves
agriculture, the major emphasis of the study was placed on water diver-
sion for irrigation.
The maximum effort of the Program was concentrated to conduct
hydrologic studies to determine the availability of water to satisfy
demands under different levels of water rights priorities and to develop
a time frame by months when the diverters had to take deficiency or com-
pletely go without water supplies for satisfying their estimated






222 IRRIGATION AND DRAINAGE AND WATER RESOURCES


demands. The following specific activities were pursued under the Dry
Year Program: 1) identifying critical areas and streams; 2) preparing
water conservation guidelines; 3) conducting hydrologic routing of water
supplies; 4) sending notices of restricted water supply; 5) conducting
investigations of complaints; 6) participating in dry year hearings;
7) enforcing water rights priorities; 8) investigating water use; 9)
developing and adopting drought-related regulations.

PURPOSE

The purpose of this paper is to discuss the methodology used
to conduct hydrologic studies for determining availability of water for
demands under different levels of water rights priorities and the recom-
mendations to the Board regarding actions related to enforcing water
rights in California. The paper also discuss legal and institutional
constraints that became apparent in administering water rights law in
California during the 1977 drought.

METHODOLOGY OF HYDROLOGIC ROUTING

ESTIMATION OF AVAILABLE SUPPLY AND DEMAND

As the water supplies and associated demands in the upper
reach of the San Joaquin River from Friant Dam to its confluence with
the Merced River are controlled and regulated by the United States
Bureau of Reclamation (Bureau) under the Central Valley Project, this
reach was not considered in this hydrologic routing study. The contri-
bution of the upper reach of the San Joaquin River to the natural flow
at the confluence of Merced River was assumed zero.
The computation of available supplies and estimation of
demands for different levels of water rights were done in accordance
with following procedures:

Riparian Water Rights. As between riparian owners, priority
of use established no priority of right, i.e., one cannot claim superior
right merely because he used the water first. If there is insufficient
water for the reasonable beneficial requirements of all riparian owners,
they must correlatively share the available supply. Apportionment is
governed by various factors, including each owner's reasonable require-
ments and uses. The latter criteria was used extensively during the
1977 drought season for extending the use of available supplies to sat-
isfy riparian demands.
The monthly riparian demands were computed from studies made
by the Department and the Bureau (1, 2, 3, 4, 5, 6, 7 & 8). In the case
of streams for which no study reports were available, riparian acreages
were computed from assessor's maps obtained from the various county
assessors. The monthly water demands for irrigating these riparian
lands were estimated by making the following assumptions: 1) 85 percent
of irrigable land was irrigated; 2) normal water duty of one cfs to 70
acres; 3) 10 percent reduction due to water conservation; 4) peak demand
during month of May; and 5) monthly demand factors of 0.60, 0.70, 1.0,
0.95, 0.95, 0.75, and 0.35 for the months of March through September.
The summation of monthly demands in the Sacramento Basin, the






HYDROLOGIC ROUTING


San Joaquin Basin and the Delta gave the total water required by months
to satisfy the riparian demands. In addition to these demands, the
following demands in the Delta were satisfied co-equally with the ripar-
ian demands: a) the monthly non-agricultural consumptive use (native
and riparian vegetation, water surface evaporation) as given in the
Department's report (3); (b) the Delta outflow index of 3000 cfs for the
months of March through May 1977, and 1500 cfs for the months of June
through September as obtained from the State-Federal Water Projects
Operations Unit (Delta Unit) of the Board. The out-flow index is the
water quantity required to meet water quality standards.
The available water supplies required to meet riparian demands
in a basin consists of natural inflow, return flow as a consequence of
using natural supply, and natural accretions from groundwater as appro-
priate. The riparian water users have no claim to the return flow gen-
erated from use of pumped ground water, imported water or stored water.
The natural monthly inflows to the Sacramento and San Joaquin
Basins during the irrigation season of 1977 were taken from the Depart-
ment's runoff forecasts of May 1977 (9). For tributaries in the
Sacramento Basin where forecasts were not available, the tributary gaged
flows of 1976 were prorated to estimate the 1977 contribution. The
return flows in the Sacramento River Basin were assumed to be not avail-
able to the riparian users. In the San Joaquin Basin, however, the
available return flow was assumed to be 20 percent of demand satisfied
during March and April, 10 percent during May and June, and 0 percent
during July, August, and September.
The summation of natural inflows or prorated gaged flows, pro-
rated natural accretions, and return flows gave the total available sup-
ply by months for riparian users in the Sacramento-San Joaquin Basins,
including the Delta.

Pre-1914 Appropriative Water Rights. The Statements of
Water Diversion and Use (Statements), were the primary source of esti-
mating pre-1914 demands. The Statements are filed by riparian and pre-
1914 appropriators pursuant to the California Water Code. The follow-
ing procedure was used to compute the pre-1914 demands: 1) prioritized
pre-1914 demands according to initial year of use/notice; 2) computed
peak monthly demands using assumptions made in riparian study; 3) com-
pared estimated peak demand with amount of water use reported in the
statement; used lesser of the two values; and 4) prorated peak monthly
demands for other months according to monthly demand factors assumed
earlier.
The water supply available to satisfy pre-1914 demands is
equal to the residual natural supply after riparian demands are satis-
fied, plus the return flow from use of ground and project (stored or
imported) water in the basins. As the natural supplies were limited
during the drought of 1977, riparian demands in the basins were not
fully met during June, July, and August. Consequently, the residual
natural supply during these months was zero to satisfy pre-1914 demands.
For the middle and lower reaches of the Sacramento Basin, the
return flow was obtained from studies made by the Department. For the
San Joaquin Basin, the return flow was estimated in accordance with the
following procedures: 1) selected gage stations located near the river
mouth or rim of the Delta and collected 1976 gage flows; 2) established
proration factors by dividing 1977 forecasted natural flows with 1976






IRRIGATION AND DRAINAGE AND WATER RESOURCES


actual flows; 3) estimated 1977 gage flows at selected gage stations;
4) gage flow = return flow + residual natural supply + storage releases
+ natural supply meant for downstream riparians; 5) releases of stored
water were assumed .to be diverted upstream; 6) residual natural supply
was not available during drought of 1977; 7) natural supply for down-
stream riparians was considered correlative with upstream riparians and
was determined accordingly; and 8) using equation in No. 4 above,
return flow was computed.
The computations assumed that the Bureau does not assert a
claim of right to recapture return flow originating from the use of
their project water in the Sacramento and San Joaquin Basins. The sum-
mation of residual natural flow and return flow gave the total water
supply available to satisfy the appropriative demands under pre-1914
and post-1914 rights in the Sacramento-San Joaquin Basins including the
Delta.

Post-1914 Appropriative Water Rights. The residual supply,
left after satisfying pre-1914 demands, was made available to diverters
under post-1914 appropriative water rights. The effort in estimating
demand of diverters with post-1914 water rights was similar to the
effort of estimating demand for diverters under pre-1914 water rights.
Instead of referring to the Statements, the staff referred to the
permits and licenses on file with the Division. Furthermore, the esti-
mation of post-1914 demands was done until the residual water supply
was completely used by diverters having senior water rights. For cer-
tain streams in the San Joaquin Basin, post-1914 demands were not esti-
mated since the available supply in those streams was completely used
by diverters under pre-1914 water rights.

SUPPLY-DEMAND ANALYSIS

Riparian Water Rights. As the riparian water rights are co-
equal, the Sacramento-San Joaquin Basins including the Delta, as shown
in Figure 3, were considered as a continuous system for comparing avail-
able supplies to satisfy riparian demands.
The available supply and riparian demand are plotted in
Figure 4. By comparing available supplies and estimated demands, the
time frame was established by months when the riparian diverters in the
system had to take a deficiency or completely go without water. The
time frame by months for the Sacramento and San Joaquin River System,
and the San Joaquin River Basin is shown in Table 1.

Pre-1914 Water Rights. The meeting of a specific Pre-1914
demand depends upon (1) priority order, (2) relative location of the
point of diversion on the stream, and (3) availability of water in the
stream at the point of diversion. The relative location of the state-
ments with their priority order is shown in Figure 3.
Using the above information, the running analysis of supply
and demand was made. Depending upon the location of the demand, the
supply needed to satisfy the demand was either known for the stream
from which the diversion was made or computed by prorating the supply
from several streams in accordance with their contribution to the total
supply. For example, the demands located on streams with zero supply
contribution were not satisfied, whereas demands located in the Delta






HYDROLOGIC ROUTING


SHASTA LAKE
Q


LEGEND
055-STATEMENT NUMBER
I-PRIORITY ORDER
"---AGE STATION






3g2-S 160 110 2319-20

S SAN OA7 Q
24~ 24 245
.; "7 a


5$ |





KNIGHTS
LANDING




4/


ORVILLE DAM


RIVER -DAGUERRE
\20I .q YUBA CITY/ -"POINT DAM
S MARYSVILLE

BEAR RIVER CAMP FAR
2 NICOLAUS 9075 WEST RES.
2



AMERICAN RIVER (--FOLSOM
SACRAMENTO 656 --aDAM


COSUMNES RIVER MICHIGAN
CONNEL4017 164 1605 BAR
SONNEL 10 9
MOKELUMNE RIVER ,CAMANCHE
BRIDGE 54 210 46 4 2 k RES.
11 6l 2 ,3 52 1472 15 91
ST N CALAVERAS RIVER ___ -NEW HOGAN
ASTOCKTON AN4C L 6F0 p-O-- RES.
4VERNALIS STANISLAUS RIVER ,--GOODWIN
A fKOETIZ RANCH 8009 4683 DAM


-1i- -TT


TUOLUMNE RIVER


-NEW DON


TUOLUMNESTO -l-" -PEDRO RES.
NEWMANV\ MERCED RIVER -NEW EXCHEQUER
A 2055 7670-73 4718 1496 DAM
STEVENSON ( B -f-DA
\MERCEO 1l 7654-69
\ 5 23


FIGURE 3: RELATIVE PRIORITY AND LOCATION
OF PRE-1914 APPROPRIATIVE WATER RIGHTS
IN THE SACRAMENTO AND SAN JOAQUIN DELTA BASINS


plvrp N


N\


us\







IRRIGATION AND DRAINAGE AND WATER RESOURCES


/
/
/


I I I I I I 1


8 0 8

(133- 3OV o0001) aNVW3a -AlddflS


o o
o o
N


8

H31VM


l.j
t--
a- -
w

03
z
Sa.
w Z

z i
0

zw

z 0


0: z
4 4


m a
U) 0

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-1J








Ir
COz


12z





















TABLE 1: SACRAMENTO SAN JOAQUIN BASINS INCLUDING THE DELTA
MONTHLY TIME-FRAME SHOWING PERCENT OF ESTIMATED DEMANDS MET
RIPARIAN LEVEL


STREAM/BASIN APRIL MAY JUNE JULY AUG SEPT OCT NOTES


Sacramento-San Joaquin 100 100 60 40 55 Based on May Forecasts
Basin Including Delta & Delta Outflow Index
100 100 80 50 60 85 100 Based on May Forecasts
& June Outflow Index


SAN JOAQUIN BASIN

Merced River

Tuolumne River

Stanislaus River

San Joaquin River

Calaveras River

Mokelumne River

Cosumnes River


Based on May Forecasts


"i






IRRIGATION AND DRAINAGE AND WATER RESOURCES


picked up their supply by prorating supply from each stream in accord-
ance with their contribution. The irrigation districts such as Modesto,
Turlock, South San Joaquin, and Oakdale divert water near the head of
the reach and do not pick up any return flow; consequently no return
flow was made available to them to satisfy their demands under Pre-1914
water rights. The running analysis of Pre-1914 demands was made for the
peak demand months of July and August. Similar to Table 1 for riparians,
the percentage of supply available to satisfy demands of diverters under
pre-1914 rights during July and August was prepared.

Post-1914 Water Rights. The post-1914 demands were consid-
ered until the available supply became insufficient to meet estimated
demands of diverters with lower priorities. The peak monthly demand
for each diverter was estimated from irrigated area by using assumptions
made earlier and was compared with amount of water permitted for use;
the lesser of the two values was used to prorate demand for other
months.
The running analysis of available supply to satisfy prior-
itized demands was made in accordance with the procedure used for Pre-
1914 water rights and percent of demands met under senior water rights
was computed.


ENFORCEMENT ACTIONS

PUBLIC INFORMATION

When the hydrologic studies were initiated during the early
part of 1977, the farmers in the State were at the verge of planting
their field crops. Before the results of these studies were developed
and water shortages were determined, the Board issued several press
releases to inform the water users regarding seriousness of the drought
and called upon them to conserve water. The Board also participated
actively in the Department's Drought Information Center for dissemina-
tion of drought related information to Californians.

WATER CONSERVATION NOTICES

The Board staff developed irrigation water conservation
guidelines in collaboration with the University of California. Also
the Department staff developed guidelines and techniques for water
conservation in urban areas. Using these guidelines, initially the
Division sent 3820 water conservation notices to all significant water
users in the drought impacted areas of central and northern California.
These notices informed the diverters regarding impending water shortages
and the degree of seriousness of hydrologic conditions. They were
encouraged to conserve water by planting their crops in accordance with
the water conservation guidelines.

WATER SHORTAGE NOTICES

In accordance with the time frame shown in Table 1, the
Division notified the assumed riparian owners in the Sacramento River
Basin and the Delta. For the San Joaquin River Basin, the time frame






HYDROLOGIC ROUTING


regarding availability of water in different streams was compared with
the system time frame, as shown in Table 1. Using the most stringent
of the two time frames, the Division notified assumed riparians regard-
ing shortage of water and time when they were required to take defi-
ciencies in water supply. A brief summary of 4168 notices sent to the
assumed riparians in the system consisting of the Sacramento-San Joaquin
Basins and the Delta is shown in Table 2. Those riparians who had con-
tracts of water supply with the Department or Bureau were not notified.
After riparian demands are satisfied, the diverters under pre-
1914 appropriative rights have next claim to the residual natural supply.
As the natural supplies were not sufficient to meet the riparian demands
during June, July and August, and the study regarding availability of
supply to pre-1914 diverters was not completed then for want of time,
the Division, on the basis of study made for riparian rights, sent two
notices-summarized in Table 2 to water users under pre-1914 water rights.
On the same premise, the Division also sent notices to permittees and
licensees regarding impact of the drought on their share of available
supply during the normal year, and these are summarized in Table 2. In
the Sacramento Basin and the Delta, it was anticipated that some return
flow would be available to satisfy some senior appropriative rights.
Consequently, the diverters with rights prior to Application Number 5000
were not notified until the completion of the study on estimation of re-
turn flows. However, in the San Joaquin Basins, all the remaining
permittees and licensees were notified, as chances of supply being
available from return flow were remote.

WATER AND LAND USE INVESTIGATION

Under an interagency agreement between the Board and the
Department, water and land use by appropriative and assumed riparian
diverters on the Sacramento River and its main tributaries and appropri-
ative diverters in the Sacramento-San Joaquin Delta Uplands were in-
vestigated. The main aim was to attempt to identify diverters who were
illegally diverting with respect to their rights or diverters who had
no color of right.
The investigations involved the inspection of diversion pumps,
estimation of irrigated acreage and identification of crops. Water and
land use by 280 appropriators, assumed riparians and others on the lower
Sacramento River and 86 in the Delta Uplands were investigated. On
analyzing the investigation reports, 39 diverters were identified as
diverting under questionable water rights.

DELTA CROP SURVEY

Under the above agreement, the Department also conducted an
aerial survey of the Delta to prepare land use and crop maps for the
1977 irrigation season. The comparison of the 1977 season land use
and crop maps of the Delta Lowland with similar maps of preceding years,
particularly those for 1976, indicated how far the farmers in the Delta
had changed their land use and cropping schemes pursuant to the notices
sent by the Division. The effectiveness of the program in the Delta
area would be directly related to the degree of reduction in cropped
area and/or planting of low water use crops (safflower, small grain
crops) as against high water use crops (alfalfa, rice, tomato, corn).






IRRIGATION AND DRAINAGE AND WATER RESOURCES


TABLE 2: SACRAMENTO AND SAN JOAQUIN BASINS
INCLUDrNG THE DELTA

Number of Notices Sent to Water Users


Level
of
Water Rights


Notice
Description


Date


Number
of
Notices


Assumed
Riparian
Diverters


On the Basis of Varch. 1, 1977 Forecast

4-22-77 Diverters from the Sacramento
River above I Street Bridge
and lower reaches of main
tributaries not having contracts
with USBR or agreements with DWR


On the Basis of


May 1. 1977 Forecast


5-18-77 Diverters from Sacramento-
San Joaquin Delta Channels

5-27-77 Diverters from the middle &
lower San Joaquin River and its
tributaries having no contracts
with the Bureau


Pre-19_14
Appropriators



Post-1914
Approprtators-


5-18-77 Diverters from the Sacramento-San
Joaquin Delta Channels

5-27-77 Diverters from the San Joaquin
River and its tributaries

3-29-77 Permittees & Licensees in the
Sacramento River Basin diverting
in excess of 3.0 cfs, and having
no contracts of water supply with
the Department or the Bureau

4-18-77 Permittees and Licensees in the
San Joaquin River Basin

5-18-77 Permittees & Licensee in the
Sacramento-San Joaquin Delta


2146


1029






HYDROLOGIC ROUTING


PREVENTION OF WASTE AND UNREASONABLE USE OF WATER

Regulations regarding prevention of waste, unreasonable use,
unreasonable method of use, or unreasonable method of diversion were
drafted and subjected to the public hearing process. On adoption, these
regulations will guide the enforcement activities of the Division.


DISCUSSION

WATER CONSERVATION

The Dry Year Program responded effectively in alleviating
impacts of the drought and promoting water rights enforcement. When
activities were initiated, the farmers in the Central Valley of
California were at the verge of planting field crops. The farmers
responded very well to the 3820 initial notices of water conservation
sent in February 1977. The water conservation guidelines developed in
collaboration with the University of Caifornia were very well received.
Many farmers either reduced their cropped area or changed their cropping
scheme from high water use crops such as rice, tomatoes and alfalfa to
low water use crops such as safflower and grain. By and large, the
farmers involved met the challenge after they were informed of the seri-
ousness of the situation.
From the sample investigations conducted during 1977, the per-
centage of cultivated lands in low water use crops increased from 24
percent in 1976 to 35 percent in 1977; this resulted in saving a consid-
erable amount of water.

WATER DISTRIBUTION

The 4,858 water shortage notices sent by the Division did aid
in restricting riparian diverters to their fair share; this encouraged
an equitable distribution of available supplies among upstream and down-
stream riparian diverters. The program was also successful in protect-
ing the senior appropriative rights of the downstream diverters. The
assistance of riparian users in conserving water either by planting low
water use crops or by cutting back in cropped acreage, was commendable.
If all the riparians implemented cut-backs in water use as requested in
the notice, the Division staff estimates that this may have prevented
substantial unauthorized diversion of water, possibly in excess of
100,000 acre-feet from June through August of 1977. The conservation of
this amount of water is sufficient to meet the domestic needs of over
500,000 people for one year. The above is based on the assumption that
one acre-foot will satisfy the domestic needs of five persons for one
year. The innovative farmers, particularly those with firm crop produc-
tion commitments, resorted to pumping groundwater to supplement insuffi-
cient available surface water supplies, and/or using more efficient
Methods of irrigation.

WATER RIGHTS COMPLAINTS

The enforcement activities undertaken during 1977 appeared to
be very effective in curbing illegal actions of upstream diverters and






IRRIGATION AND DRAINAGE AND WATER RESOURCES


minimizing filing of complaints by downstream diverters. Frequent
field visits made farmers aware of the Board's concern of enforcing
water rights and encouraged farmers to cooperate and help alleviate
the drought impacts.
Three hundred and sixty-six visits and 39 follow-up investiga-
tions were conducted during the latter part of the 1977 irrigation
season in the Sacramento Valley, including the Delta. Most of the
farmers abided by the findings of the Board and curtailed water use in
accordance with the Board water shortage notices. The Board recommended
referral of two alleged offenders to the Attorney Gereral for appro-
priate actions.

INSTITUTIONAL AND LEGAL CONSTRAINTS

Throughout the enforcement activities during the unprecedented
drought of 1976-77, several complexities and deficiencies arose regard-
ing the implementation of water rights law. Institutional constraints
also hampered the Board staff in dealing with water rights problems.
Some pertinent ones are discussed below.

1. The lengthy public hearing process now required in enforcing water
rights law is too time consuming. The Board has no authority to
issue cease and desist orders against illegal diverters while the
public hearing process is conducted. Further, the Board should be
granted authority to impose fines or administer other enforcement
actions instead of invoking the only sanction now provided by law -
revocation of the diverter's permit/license, which is a punishment
too severe for the violation in most cases.

2. Provisions should be included in the law which would accelerate
the filing of Statements of Water Diversion and Use by pre-1914
diverters and riparians. This data would have greatly assisted
the work of estimating demands under pre-1914 water rights.

3. Since the Board does not have any jurisdiction over riparian di-
verters, even if it could be established that excessive water was
being used, recourse would only be through protracted action in the
courts. Some riparian owners have been advised by their lawyers to
deny access to the investigating teams and a few have written let-
ters to that effect. For this reason the Division undertook aerial
surveillance when necessary.

4. In the case of permit or license holders, it had to be clearly
established that all the water they were diverting was through
their allowable appropriation. If part of water supply for
irrigation was from ground or contract water, or if part of the
property was riparian, illegal diversion was difficult to estab-
list during the 1977 season.

5. By being cooperative with the investigators, one license holder
incriminated himself as a possible illegal diverter. Abating his
diversion would cost him his pasture and crop, while preliminary
assessment showed a considerable upstream area was being irrigated






HYDROLOGIC ROUTING


by farmers with apparently no color of right. Because of limited
authority of the Board over unlicensed illegal diverters, access
to their properties posed problems.

6. Although California's water rights system has worked well, there is
need for change. At times the existing institutional structure has
presented a barrier, rather than a bridge, to problem solving.

a. Although a large portion of the State's water needs are met
from groundwater (nearly 23%) the water is basically an unreg-
ulated common pool resource. There is limited incentive to
conserve water or put it to optimal use. In fact, there
actually are incentives to consume because whatever amount one
person saves others will use. Another fact is that ground-
water rights, when quantified, tend to be set according to
historical usage.

b. Riparian rights have the highest priority, are never lost
through non-use, and may be exercised at any time despite ad-
verse impacts on the permitted water rights of others. Thus,
it is possible that a new riparian use could develop at any
time and eliminate or interfere with water on which a sub-
stantial industrial or municipal investment had been based.

c. Another deficiency in present law is the absence of an effec-
tive means to protect minimum instream flows needed for rec-
reational, esthetic, or fish and wildlife uses.

Towards the close of the 1977 water year, it became apparent
that no dramatic enforcement action, resulting in mass abatement of
illegal water diversion, could be carried out this year. Many farmers
had completed their irrigation for the season. The experience gained
during enforcement activities demonstrated the need for the Board to
show its presence, even during normal water supply years, if it is to
protect the public interest through the State's water rights law. The
staff believes that questionable diversion practices have existed for
many years prior to the drought but it was not until the Board put
resources into the field that many of these questionable practices were
curtailed. As future water supplies become more scarce, monitoring and
enforcement activities will become critical to the California system of
water allocation and enforcement.
It has been projected that California will begin to experience
serious water shortages, even in normal rainfall years, by the year 2000
if we continue our present economic and population growth and water use
patterns. In order to prevent this shortage, or at least postpone it,
we must begin vigorous conservation programs, develop more sophisticated
water management techniques and plan for the future development of new
water resources.
APPENDIX REFERENCES

1. Water Use and Water Rights along Sacramento River and in
Sacramento-San Joaquin Delta, 1956 Cooperative Study Program






234 IRRIGATION AND DRAINAGE AND WATER RESOURCES

Report, U. S. Bureau of Reclamation, Department of Water
Resources, and Sacramento River and Delta Association, Volume I &
II, March 1959.

2. 1966 Joint Water Rights Study, Department of Water Resources, and
U. S. Bureau of Reclamation.

3. The Sacramento Valley Water Use Survey, for 1976, California
Department of Water Resources, 1977.

4. Water Rights Appendix, Cosumnes River Division, California Central
Valley Project, U. S. Bureau of Reclamation, August 1967.

5. San Joaquin River Water Rights and Entitlement of the Mendota Water-
fowl Management Area, Mendota Pool, Fresno Slough area, California.
Central Valley Project, U. S. Bureau of Reclamation, June 1966.

6. A Report for use in Appraisal of Riparian Lands on East Side of
San Joaquin River between Chowchilla Farms and Stevenson Colony,
Vol. 1, Text, U. S. Bureau of Reclamation, October, 1940.

7. Report on Water Rights Investigations of Land along East Side of
San Joaquin River from Merced River to Tuolumne River, California
Central Valley Project, U. S. Bureau of Reclamation, May 1949.

8. Irrigation Conditiong of Lands adjacent to San Joaquin River
Between Friant and Ghavelly Ford, California Central Valley
Project, U. S. Bureau of Reclamation, August 1940.

9. Water Conditions in California, Department of Water Resources,
California Cooperative Snow Survey Bulletin No. 120-77, May 1, 1977.

10. Irrigation Districts in California, Bulletin 21 of the California
Department of Public Works, 1929.













RESEARCH AND LAW REQUIREMENTS IN WEATHER MODIFICATION

by Conrad G. Keyes, Jr., F.ASCE


A need for the prudent design and critical analysis of
all weather modification efforts was expressed in the early
meetings of the North American Interstate Weather Modifica-
tion Council [Keyes, 1976]. The accomplishments pertaining
to cooperation between the membership from the states of
the United States, Mexico, and the provinces of Canada have
defined many coordination views needed in weather modifica-
tion [Keyes, 1977].

Around the time of the creation of Public Law 94-490
(National Weather Modification Policy Act of 1976), the
NAIWMC became involved in defining the technical capability
of weather modification, legal uncertainties of the technol-
ogy, federal research requirements by the states, and the
new law requirements for coordination of weather modifica-
tion activities.


Approach by the Council
Year-end position statements and resolutions were the
result of the beginning annual meetings of the Council.
This type of action was informative to most state agencies,
state legislatures and the U.S. Congress, but in no way did
the action items provide a real-time solution needed by
these groups. Starting in 1976, the Council's Executive
Committee began using the questionnaire approach to keep on
top of important issues that had been confronting the Council
from time to time; i.e., what are the present laws in each
state, what are the state's positions on weather modifica-
tion, what are the Federal research needs required by the
states, what new laws should be established for the weather
modification technology?

Using this approach, any state or the Board of Direc-
tors of the Council can obtain information on any area
within the United States. Using an objective and/or sub-
jective analysis, the Executive Committee can provide a
summary of the opinions of the states throughout the coun-
try. Although the primary category of regular membership


IProfessor of Civil Engineering, New Mexico State University
and Executive Director, North American Interstate Weather
Modification Council, Box 3CE, NMSU, Las Cruces, NM 88003
(505-646-3234)






IRRIGATION AND DRAINAGE AND WATER RESOURCES


in the Council is state government agencies, it is important
to realize that political sub-divisions, scientific soci-
eties, and professional organizations provide input to most
actions of this Council via the affiliate member category.
For example, within the Colorado River Basin only three
states are regular members in the Council whereas eight or
nine affiliate members also provide added coordination and
cooperation of weather modification activities in this area
(See Figure 1). More importantly, any group or individual
with interest in coordination and cooperation of weather
modification activities can provide input at all times.


Present Involvement by the States
Some of the first questions asked by the Board of
Directors of the NAIWMC were: Where and how is the regula-
tion of weather modification controlled in the states?
What is the states' involvement and present position on
weather modification?

The answers to these questions were first reported by
the Council at the Twelfth Annual Meeting of the American
Water Resources Association in Chicago in September 1976
[Keyes, 1977]. The summary of the objective observations
from the responses implied:

1. Thirty states have enacted a statute that deals
with weather modification (34 in July 1978).

2. Most states control weather modification activi-
ties by regulation within a Department of Water/
Natural Resources or by a Weather Modification
Board/Commission.

3. Only a few states have any direct involvement in
on-going weather modification programs, however,
the number has gone from six to twelve during
the drought of 1976-1978.

4. Several states support the concept of Federal
funding of further research and development in
weather modification.

5. Very few states have taken a position on opera-
tional weather modification programs, however,
actions are providing more input from time to
time.


Federal Research Needs
A certain amount of criticism and controversy has sur-
rounded the subject of weather modification or cloud seed-
ing for years [NWC, 1973; Shaefer, 1970; NAS 1973; Fleagel,
et. al., 1974; Changnon, 1975; Farhar and Mewes, 1976;






WEATHER MODIFICATION


FIGURE I. MAP SHOWING THE LOCATION OF 1978
\ MEMBERS AND BOARD OF DIRECTORS


E] PERMANENT REGULAR
M TEMPORARY REGULAR
g BOARD OF DIRECTORS
A AFFILIATE
ED EXECUTIVE DIRECTOR






IRRIGATION AND DRAINAGE AND WATER RESOURCES


Howell, 1977; among others]. Recent discussions also have
provided information that indicates weather modification is
a potential tool for the dissipation of fog in and around
airports; increasing usable water supplies for domestic,
agricultural and industrial processes; decreasing hail for
increased crop and fiber production; and the reduction of
damage from severe storms [BuRec, 1973; Dennis, et. al.,
1975; Vardiman, et. al., 1976; Bark, 1977; Changnon, 1977;
Miller, 1977; Pellett, et. al., 1977, WMA, 1977 and Woodley,
et. al., 1977, among others].

A plan was established in June 1976 to determine the
future research needs of each of the NAIWMC member states.
This action was requested by the Advanced Planning Group,
Weather Modification Program Office, National Oceanic and
Atmospheric Administration in Boulder, Colorado. After
attending meetings sponsored by California, North Dakota,
Pennsylvania, South Dakota, Texas and Utah, information was
compiled on the needs in research in weather modification.
Also, input from other states has been provided from ques-
tionnaires sent out in 1976-78. Questions that were asked
of the weather modification agency in each state included:

1. Has Federal research in weather modification been
adequate? What methods-fog dispersal, snowpack
enhancement, rainfall augmentation, hail sup-
pression, etc.?

2. What areas of weather modification need more
research and development? Instrumentation, deliv-
ery systems, artificial nuclei, physical evalua-
tion, statistical evaluation, societal studies,
legal aspects, other?

3. What fraction of the total Federal effort in
weather modification should be devoted to research,
development, demonstration and operations?

4. What fraction of the total Federal effort in
weather modification should be devoted to the
various seeding objectives: snowpack increase,
rain enhancement, hail suppression, hurricane wind
suppression, inadvertent affects, others?

5. What fraction of the total Federal effort should
be devoted to the different aspects of weather
modification: scientific, socio-economic, insti-
tutional, environmental?

The needs of the states' and organizations within the
states are very similar to those of the scientific communi-
ty: i.e., decrease the scientific uncertainties by conduct-
ing research in artificial nuclei delivery systems, diffu-
sion studies, cloud physics of precipitation processes and






WEATHER MODIFICATION


environmental systems associated with cloud seeding affects.

A summary of the state agency responses to the NAIWMC
questions pertaining to research needs is provided in Table
1. Without question, the major item recommended by most
state governments is in the area of evaluation of on-going,
long-term operational programs (Item la in Table 2). Next
in line would be further development of the seeding technol-
ogy and the other aspects which will eventually determine
its acceptance: economic, environmental and societal
studies (Item 3 in Table 2).

The fractions of the total Federal effort in weather
modification categories vary according to the needs of each
of the states or the organizations within the states. For
example, the Colorado River Basin states would like to see
most of the future Federal effort to be in winter snowpack
research, pilot and demonstration programs (Southwest in
Table 3). The Plains and Midwest states are definitely
more interested in rainfall enhancement and hail suppression
(Table 4). The states along and near the Atlantic seaboard
may be more interested in weather systems and seeding meth-
ods than any other aspect of weather modification (Table 5).

It has become apparent that a coordinated effort in
each region of the United States is definitely possible,
if and only if, some Federal agency or outside group can
provide leadership in the future. Long-term, well-designed,
coordinated programs are of grave importance to the technol-
ogy of weather modification.


New Law Requirements
A national policy on weather modification is being
considered (Public Law 94-490). During the past year, many
individuals have been given the opportunity to provide their
input to the National Weather Modification Advisory Board
of the U.S. Department of Commerce.

What most people do not realize is that many "users"
of the technology have been discussing items for a national
policy and uniform standards and/or regulation since June
1974, the initial beginning of the NAIWMC. This was not
the start of such an effort, for many groups (American
Society of Civil Engineers, American Meteorological Society,
Domestic Council, National Academy of Science, Weather Mod-
ification Association) have made some excellent suggestions
in the past. However, most of these organizations have had
little input from the major "users" of weather modification
-- the state water resource/agriculture agencies which would
likely finance large-scale state and interstate programs
in the future.

After reviewing the responses from the states to the
questions concerning Federal regulation and new law require-




















Table 1. Summary of Research Needs, Responses at
State Visits and by NAIWMC Questionnaires o

Area/State Evaluation Seeding Aspect Detection Inadvertent Forecasting
Technology Studies
(1)* (2)* (3)* (4) (5) (6)*
East
Maryland a,b,c a,b,c a,b,c / /
Pennsylvania a,c b,c /
Vermont a a a,c
Virginia a,c a,b,d a,b,c O
Midwest
Illinois a,b,c a,b,c,d a,b,c /
Indiana b,c a,b,c,e b,c /
Kansas a,b,c b,c a,c
Michigan a,b,c b,c,d a
Missouri a,b a,c
North Dakota a b,c,e c a
South Dakota a,b,c b,c c
Southeast
Texas a,c a,b,d c a,c
West
Arizona a,b,c a,b,e a,b,c
California a,b,c a,b,e a,b,c
Hawaii b a
Idaho a,b e a 0
Nevada a,b a,b a,c a,c
New Mexico b,c b a,c
Oregon a,b a
Utah a,b b,d a
Washington a,b a,b a

*List of categories in Table 2 Federal Categories of Weather Modification Research

~na~ ~ ~ L~~~l~~r~-~-~-r ~ ~C--r i~rr---~ -~lhrmn;-rrrrr4^ r~s~l~a~







WEATHER MODIFICATION


Table 2

Federal Categories of Weather Modification Research**


1. Evaluation
a. Of operational programs
b. Physical studies
c. Extra-area effects

2. Seeding technology
a. New seeding agents
b. Transport and diffusion, delivery methods
c. Hail suppression methods
d. New tools, e.g., satellites
e. Public education

3. Economic, ecological and societal studies
a. Economic benefits
b. Toxicity of agents
c. Societal studies

4. Detection of clandestine seeding

5. Inadvertent weather modification

6. Forecasting
a. Short range
b. Local topographic effects
c. Long range


**For use in Table 1 Summary of Research Needs


























Table 3. Summary of Total Federal Effort, Type
of Weather Modification Programs


Area/State Research Pilot Demonstration Operations

East 0
Maryland 65% 35% 0 0
Pennsylvania 10% 25% 15% 50%
Virginia 20% 80% 0 0

Midwest
Illinois 30% 30% 40% 0
Kansas 50% 35% 10% 0
Michigan 45% 45% 10% 0
Missouri 40% 40% 10% 10%
North Dakota 0 70% 20% 10%

West
Arizona Water 0 0 80% 0
Commission
Salt River Project 25% 25% 50% 0 0
California 40% 40% 15% 5% a
Utah 20% 50% 20% 10%
TA


nRl~n~p*~raa~ L i 1


C~p~ ~--~rr*1*I Ir-

























Table 4. Summary of Total Federal Effort,
Weather Modification Seeding Objectives


Area/State


Snowpack Rain Hail Hurricane Inadvertent Other
Enhancement Suopression Wind


East
Maryland
Pennsylvania
Virginia

Midwest
Illinois
Kansas
Michigan
Missouri
North Dakota


West
Arizona Water Comm.
Salt River Proj.
California
Utah


30%
0
0




0
10% 0


LL
























Table 5. Summary of Total Federal Effort, Different
Aspects of Weather Modification


Area/State Weather Seeding Socio- Institutional Environmental
Systems Methods Economic

z
East >
Z
Maryland 50% 25% 5% 10% 10%
Pennsylvania 25% 50% 10% 5% 10%
Virginia 60% 20% 10% 0 10%

Midwest
Illinois 60% 10% 10% 10% 10%
Kansas 50% 25% 10% 5% 10%
Michigan 30% 30% 15% 10% 15%
Missouri 25% 20% 15% 20% 20%
North Dakota 40% 35% 5% 15% 5%

West
Arizona Water Comm. 40% 40% 0 0 0
Salt River Project 50% 25% 15% 0 10%
California 20% 20% 20% 20% 20%
Utah 50% 25% 10% 10% 5%


'I -






WEATHER MODIFICATION


ments, as well as summarizing the 1976 weather modification
hearings of the 94th Congress, the recommendations by the
National Water Commission [1973] may still be in order:
create a Federal policy to regulate cloud seeding operations
that have any potential for interstate influence, and develop
a comprehensive policy to coordinate all precipitation aug-
mentation programs in the United States.

Recommendations recently suggested by most states and
individuals responding to the NAIWMC questionnaires include:

1. Uniform application and control of projects
through development of a common law among the
states. A common law should include:

a. Purpose and definition of weather modifica-
tion and cloud seeding.

b. Control boards for licensing of operators,
permit system for projects, monitoring of
research and operations, and inter-govern-
mental coordination and cooperation.

c. State sovereignty of the water and/or the
"law of the river."

d. Non-acceptance of liability, i.e., states
should not perform the actual seeding opera-
tions.

2. Development of a National Weather Modification
Policy that indicates:

a. Federal government's mission would include
research, development and demonstration.

b. State government's major mission is in regu-
lation and standardization of programs in
and adjacent to their state.

c. Local and/or county governments mainly pro-
vide decision-making in actual operations
in their areas.

3. Creation of a National Weather Modification Au-
thority or Commission to facilitate cooperation
between projects of the Federal agencies and
programs of the states and provinces.

It seems reasonable that most Federal agencies having
missions involving climate and weather predication or re-
search and development of weather modification (cloud
seeding) cannot realistically coordinate regulation of such
across lower order governmental boundaries, i.e., town-
ships, counties, and states or provinces. However, some






IRRIGATION AND DRAINAGE AND WATER RESOURCES


have suggested that minimum Federal standards may be in
order if the states cannot develop adequate rules and regu-
lations pertaining to licensing of operators, coordination
of an interstate permit system, and standards of operation.


Summary
Several states and provinces and organizations therein
are aware of the requirement to develop necessary communica-
tion to solve problems of interstate weather modification
or cloud seeding activities in Canada, Mexico and the United
States. About one-third of the states have defined their
awareness of relationships with Federal programs dealing
with experimentation (research, development and demonstra-
tion) and funding of future activities in the technology.
Involvement in the Council's activities have indicated a
desire to further a truly inter-governmental coordinated
effort in weather modification program in the future, not
just a national effort.

Questionnaires and regional meetings of the NAIWMC have
defined the potential users of the cloud seeding technology
throughout the North American Continent. Also, the states
and provincial views on Federal and State weather modifica-
tion legislation have been described in testimony presented
at the 1976 weather modification hearings and to the 1977-
78 Appropriation Committees of the U.S. Congress. With
only a few exceptions, most individuals and groups indicate
that new law requirements should include the establishment
of a National Weather Modification Policy in research and
development, a coordinated effort of the Federal activities
(probably by regions or major water basins), and a common
licensing and permit system by the states and provinces
throughout the Continent. Since atmospheric water is part
of the hydrologic cycle of any water basin, why not include
it in the "law of the river". A good weather modification
technology transfer program could help River Commissions
apply this new technology within their domain.


Acknowledgments
Many of the items mentioned herein were the result of
funding from the ten different regular members of the NAIWMC,
support of the Colorado River Basin planning sessions by the
U.S. Bureau of Reclamation, support of the NAIWMC/State
meetings in the Fall of 1976 by the National Oceanic and
Atmospheric Administration, and funding from the U.S. Water
Resources Council. None of this presentation could be
provided without the cooperation of the states and organi-
zations submitting information for this report.








i






WEATHER MODIFICATION


References
Bark, L. Dean 1977: Can we do something about the weather?
Bulletin 605, Ag. Exp. Sta., Kansas State University,
Manhattan and North Central Regional Publication 237.

Bureau of Reclamation, 1973: Project Skywater -- An intro-
duction to Rivers in the Sky, U.S. Dept. of the
Interior, 31 pp.

Changnon, Stan A., Jr., 1975: The Paradox of Planned
Weather Modification, Bulletin, AMS, 56, pp. 27-37.

Changnon, Stan A., 1977: On the status of hail suppression,
Bulletin, AMS, 58 (1), pp. 20-28.

Dennis, A. S., J. R. Miller, Jr., D. E. Cain and R. L.
Schwaller, 1975: Evaluation by Monte Carlo Tests of
Effects of Cloud Seeding on Growing Season Rainfall in
North Dakota, J. Appl. Meteor., 14 (5), pp. 959-969.

Farhar, Barbara C. and Julia Mewes, 1976: Social acceptance
of weather modification: The emergent South Dakota
controversy. Inst. of Behav. Sci. Mongraph #23,
Univ. of Colorado, Boulder.

Fleagle, R. G., J. A. Crutchfield, R. W. Johnson, W. R. Abdo,
1974: Weather Modification in the Public Interest,
AMS and the Univ. of Washington Press, 88 pp.

Howell, Wallace E., 1977: An overview of the Skywater IX
Conference on precipitation management and the envi-
ronment, presentation at Weather Modification Associa-
tion meeting, April 15, Salt Lake City, DAWRM, BuRec,
Denver.

Keyes, C. G., Jr., 1976: NAIWMC Formation and Its
Activities through 1975, The Jour. of Weather Modifica-
tion, 8 (1), Weather Modification Association, Box
8116, Fresno, CA, pp. 157-163.

Keyes, C. G., 1977: North American Interstate Weather
Modification Council-Need, Goals, Purpose and Activi-
ties, Water Resources Bulletin, Amer. Water Resources
Ass., 13 (5), pp. 917-932.

Miller, James R., Jr., 1977: Weather modification-an-update,
Bulletin 77-1, Inst. of Atmos, Sciences, S. D, School
of Mines and Technology, Rapid City, 13 pp.

National Academy of Sciences, 1973: Weather Climate
Modification -- Problems and Progress, 2101 Constitu-
tion Ave., Washington, D. C., pp. 93-113,






IRRIGATION AND DRAINAGE AND WATER RESOURCES


National Water Commission, 1973: Water Policies for the
Future, Final report to the President and to the
Congress of the United States, Supt. of Doc., U.S.
GPO, Washington, D.C., pp. 346-351.

Pellett, J. L., R. S. Lebland and M. R. Schock, 1977:
Evaluation of recent operational weather modification
projects in the Dakotas, WMB Report 77-1, N. D.
Weather Mod. Board, Bismarck, 54 pp.

Shaefer, Vincent J., 1970: A call for action, The Jour.
of Weather Modification, 2 (2), pp. 1-13.

Vardiman L., J. A. Moore, and R. D. Elliott, 1976:
Generalized seedability criteria for winter orographic
clouds, Papers presented at 2nd WMO Scientific Confer-
ence on Weather Modification, WMO 443, Geneva pp. 41-48.

Weather Modification Association 1977: Weather Modification
Some Facts About Seeding Clouds, WMA, P.O. 8116,
Fresno, CA 93727, 16 pp.

Woodley, W. L., Simpson, R. Biondini, J. Berkeley, 1977:
Rainfall results, 1970-1975, Florida Area Cumulus
Experiment, Science, 195 (4280), pp. 735-742.














Theory and Practice of Water-Polluting Rights


1/
Klaus F. Alt and John A. Miranowski-


Introduction

Economic activities interact with the environment in two primary
areas: the environment contributes raw material inputs to the produc-
tion process and the environment accepts the residues of our activities
(both by-products of the production process and the consumption pro-
cess). Historically, the firms who generated wastes (by-products) had
a choice. They could either treat these wastes at their own expense,
i.e., not emit wastes into the environment or at least emit at a re-
duced level, or they could use part of the environment's assimilative
capacity to accept their wastes. In the latter case, the firm could
avoid waste treatment costs. Since any cost avoided is "profit," most
firms would choose the option of dumping their wastes into the environ-
ment. And it should also be said that the environment generally could
absorb these waste loads, at least for a long period during this
nation's history and excluding some concentrated loadings around
cities.

That has changed. The number of firms (i.e., emitters) has in-
creased greatly over time, as has the geographical concentration of
these firms. Furthermore, the nature of wastes has changed. Today's
industrial wastes are likely to be less biodegradable than the wastes
produced in earlier epochs. The consequence of these developments is
that the assimilative capacity of the environment is frequently ex-
ceeded, that is, more wastes are emitted into the environment than can
be assimilated by natural processes. Society attempts to reduce this
overuse by various pollution control policies. In the remainder of
this paper we will discuss the conditions under which two particular
policies, namely a pollution rights policy and a tax (or user charge)
policy, may be most appropriate.


Theory

Economists propose (at least) three potential policies: charges,
permits, and direct regulation. The objective of each policy is to
change the decision making of the polluting firms so as to cause them

1/Klaus F. Alt is an Agricultural Economist, Natural Resource
Economics Division, Economics, Statistics, and Cooperatives Service,
U.S. Department of Agriculture, and a USDA Collaborator, Department of
Economics, Iowa State University, Ames. John A. Miranowski is an
Assistant Professor, Department of Economics, Iowa State University.







IRRIGATION AND DRAINAGE AND WATER RESOURCES


to lower their emissions of pollutants. The method of each policy
varies and so does the appropriateness of a specific policy in a given
situation. Charges act as a penalty on emissions which induce the
polluters to search for alternative waste disposal methods which may be
cheaper to use than to pay the full penalty on the release of an un-
treated waste load. Permits and direct regulation specify what actions
the polluters may take, either by allowing them to release a certain
amount of pollutants into the environment or by directing them to
employ specific production and waste-management practices. Selected
inputs, such as some pesticides, are declared illegal for use in some
or all applications if it is determined that their use presents un-
conscionable risks to human health or the environment in general.

Before we can begin to discuss the relative merits of these poli-
cies, we need to define two concepts: first, the pollution abatement
demand function, and second, the pollution abatement supply function.
The demand function shows the various levels of pollution abatement
that will be desired by society at alternative pollution abatement
cost levels. As such, the demand function serves to quantify society's
desire for a clean environment, and more importantly, it serves to
spell out society's willingness to pay for the implied pollution abate-
ment activities. Similarly, the pollution abatement supply function
quantifies the amounts of abatement which would be supplied by pol-
luters at various abatement cost levels (assuming cost minimizing
behavior).

In the ideal case (i.e., with perfect knowledge), society can use
these two functions to derive the optimal level of pollution abate-
ment. The optimal level would be given as the level where the cost of
supplying the last unit equals the price that society is willing to
pay for that last unit (assuming the second-order conditions are satis-
fied) and the optimal level of abatement can then be administratively
imposed by any one of a number of policy options. As Fisher and
Peterson (1976) conclude, "A number of policies can be used for pol-
lution. And they are equally efficient, except where information
about costs and benefits is incomplete and where there are administra-
tive costs involved which is to say, except in the real world." In
other words, the lack of perfect information and the variations in
administrative costs among alternative policies may dictate the optimal
choice.2/ The question then becomes: How do we determine which policy
is most appropriate?

The appropriateness can only be judged by the specifics of each
situation. Dorfman and Dorfman (1977) suggest a possible interpre-
tation of work by Kneese and Bower (1968) and Dales (1968). Kneese and
Bower advance a forceful argument for the use of charges while Dale
argues for a policy based on a public auction of polluting rights.
Dorfman and Dorfman suggest that the difference in prescription may
stem from a different view of the elasticity of the abatement demand
function. "If demand is extremely inelastic, a decision to set some
limit on pollution will not go far astray regardless of the price that

/-For a more detailed discussion on this point, see Miranowski
and Alt (1978).







WATER POLLUTING


pollution rights turn out to command in the market. If, on the other
hand, demand is highly elastic, it will be nearly impossible to esti-
mate the socially desirable amount of discharge without knowing the
cost to polluters of different levels of abatement." The following
analysis will assess the implications of their suggestion for the
choice of an efficient environmental policy.

In Figure 1, we present inelastic and elastic abatement demand
curves, assuming a reasonable abatement supply curve. If a is the
optimal level of abatement, with perfect information, the regulatory
agency can auction permits to exactly achieve level a of pollution
abatement. In the absence of perfect information, the agency may offer
too few rights (b), i.e., require too much abatement. The social wel-
fare cost of the error if the demand curve is elastic (DE) is repre-
sented by the lined area a. In the case of the inelastic demand curve
(DI) the cost is shown by the combined lined and hashed areas (a and
8). It is obvious that the social cost of an error is greater in the
inelastic demand case. The reader can easily confirm that to err in
the opposite direction (i.e., too many rights) has similar social cost
impacts.

Now from the perspective of a user charge or tax, in Figure 2, we
consider the option of a tax given different elasticities of the abate-
ment demand curve. Once again we come to the conclusion that to err is
less costly to society in the elastic demand case than in the inelastic
case. In the elastic demand case only the lined area a is a social
cost but in the inelastic demand situation we must combine both the
hashed and lined areas for the cost estimate. We can conclude that
the elasticity of demand is not helpful in choosing between the two
options.

The discussion need not end here. So far we have ignored the
elasticity of the supply curve. Figure 3 presents the case of elastic
and inelastic supply curves, given a particular demand curve. In this
case we consider establishing the quantity of pollution rights (abate-
ment) in the absence of perfect knowledge and estimating the social
cost of an error. In the elastic supply case the social cost of being
at level b when a is the optimum is the lined area a, but in the in-
elastic case the lined and hashed areas (a and 8) are incurred as
social costs.

Finally, the differing supply elasticity cases for a tax are pre-
sented in Figure 4. For this policy option the social cost of an
error is greater for an elastic abatement supply curve (represented by
the horizontally lined area a), than for an inelastic supply situation
(the vertically lined area 8).

Thus we can conclude that the elasticity of the abatement supply
curve does matter. If the marginal abatement cost curve is inelastic,
a tax scheme should be used because the potential social cost of an
error is less. If an elastic abatement supply curve is encountered,
then setting the level of abatement and auctioning the pollution
rights may incur less social costs if perfect information is







IRRIGATION AND DRAINAGE AND WATER RESOURCES


a b


Abatement


Figure 1. Cost of error in permit program
abatement demand functions


for alternative


252


Cost


I
Abatement

Figure 2. Cost of error in tax program for alternative
abatement demand functions







WATER POLLUTING


a b Abatement

Figure 3. Cost of error in permit program for alternative
abatement supply functions


a


Abatement

Figure 4. Cost of error in tax program for alternative
abatement supply functions


- - N7






IRRIGATION AND DRAINAGE AND WATER RESOURCES


lacking ./ Given this conclusion, knowledge of the nature of the
abatement cost curve becomes very important in selecting an efficient
policy option in a world of less than perfect information.

So far we have ignored the administrative costs associated with
the pollution rights auction approach and a user charge scheme. Fisher
and Peterson (1976) suggest that a preference for the rights auction
may develop since "in a pollution rights market, quality would be main-
tained without further administrative action" (p. 13) and therefore
without administrative costs.


Practice

We have already stated the obvious, namely that most pollution
policy has to be set without much reliable information. The state of
knowledge of environmental processes is not sufficiently advanced to
specify the limits to the assimilative capacity of the environment.
Therefore, society does not know (with the required certainty) what
level of pollution abatement to set as a policy goal. It is theoreti-
cally possible that society's justified attempt to "be safe rather than
sorry" leads to policies which end up requiring more pollution abate-
ment than is environmentally justified. It is of course also possible
that the policy level may require less pollution abatement than is
justified. In either case, the error causes a social cost. We have
shown that the elasticity of the abatement cost function can determine
whether a tax or a pollution rights policy should be used for a given
pollution problem. It follows that one of our prime data needs is the
elasticity of the abatement cost function in the relevant range. Of
course, to have an exact specification of this function would be better
yet.. Even though that may not be achievable in the short run, it
should be a goal of pollution control research.

While this research continues, we should give some thought to try-
ing a pollution rights policy in an appropriate case. And indeed, EPA
is exploring the possibilities:

"We are developing alternatives to the traditional, command-and
control forms of regulation. We are looking at, for example,
the marketable rights approach, which would involve auctioning
off the right to discharge a certain pollutant whose use has to
be restricted. The marketplace bidding would allocate rights
to discharge limited amounts of the pollutant to those sources
which produce the most valuable products and which have no in-
expensive substitutes. This approach might lead to a more
efficient allocation of costs to society than would the usual
regulatory approach of banning certain products or processes,
because EPA cannot know as much about substitutes, production
costs, and likely price change as those bidding in the market-
place." (Costle, 1978)

Of course, the choice may not be always as clear, particularly
if the elasticity is in an indeterminate range. In such a situation,
a hybrid program such as proposed by Oates and Baumol (1975) could be
used.




I______________







IRRIGATION AND DRAINAGE AND WATER RESOURCES


lacking.2/ Given this conclusion, knowledge of the nature of the
abatement cost curve becomes very important in selecting an efficient
policy option in a world of less than perfect information.

So far we have ignored the administrative costs associated with
the pollution rights auction approach and a user charge scheme. Fisher
and Peterson (1976) suggest that a preference for the rights auction
may develop since "in a pollution rights market, quality would be main-
tained without further administrative action" (p. 13) and therefore
without administrative costs.


Practice

We have already stated the obvious, namely that most pollution
policy has to be set without much reliable information. The state of
knowledge of environmental processes is not sufficiently advanced to
specify the limits to the assimilative capacity of the environment.
Therefore, society does not know (with the required certainty) what
level of pollution abatement to set as a policy goal. It is theoreti-
cally possible that society's justified attempt to "be safe rather than
sorry" leads to policies which end up requiring more pollution abate-
ment than is environmentally justified. It is of course also possible
that the policy level may require less pollution abatement than is
justified. In either case, the error causes a social cost. We have
shown that the elasticity of the abatement cost function can determine
whether a tax or a pollution rights policy should be used for a given
pollution problem. It follows that one of our prime data needs is the
elasticity of the abatement cost function in the relevant range. Of
course, to have an exact specification of this function would be better
yet.. Even though that may not be achievable in the short run, it
should be a goal of pollution control research.

While this research continues, we should give some thought to try-
ing a pollution rights policy in an appropriate case. And indeed, EPA
is exploring the possibilities:

"We are developing alternatives to the traditional, command-and
control forms of regulation. We are looking at, for example,
the marketable rights approach, which would involve auctioning
off the right to discharge a certain pollutant whose use has to
be restricted. The marketplace bidding would allocate rights
to discharge limited amounts of the pollutant to those sources
which produce the most valuable products and which have no in-
expensive substitutes. This approach might lead to a more
efficient allocation of costs to society than would the usual
regulatory approach of banning certain products or processes,
because EPA cannot know as much about substitutes, production
costs, and likely price change as those bidding in the market-
place." (Costle, 1978)

/ Of course, the choice may not be always as clear, particularly
if the elasticity is in an indeterminate range. In such a situation,
a hybrid program such as proposed by Oates and Baumol (1975) could be
used.







WATER POLLUTING


To be clear, don't get the impression that EPA is making a wholesale
shift in its policies. The "marketable rights strategy" is being ex-
plored for only one type of fluorocarbons, but it is a start.


Conclusion

This paper discusses a theoretical framework for choosing pollu-
tion control policies. There are immense gaps of data and knowledge
which will have to be filled before this framework can be proposed for
policy implementation. Until then, the theory should generate dis-
cussion and research which may help to orient present efforts toward
an optimal social pollution control policy by helping to prevent
grossly inappropriate environmental policies.


References

Costle, D. M. 1978. "National Planning and Regulatory Reform."
Speech presented at The Conference Board, Washington, D.C.,
April 27.

Dales, J. H. 1968. "Land, Water, and Ownership." Canadian Journal
of Economics, November.

Dorfman, R. and N. S. Dorfman. 1977. Economics of the Environment.
New York, N. W. Norton & Co.

Fisher, A. C. and F. M. Peterson. 1976. "The Environment in
Economics: A Survey." Journal of Economic Literature, Vol. XIV,
No. 1, March.

Kneese, A. V. and B. T. Bower. 1968. Managing Water Quality:
Economics, Technology, Institutions, Baltimore, Johns Hopkins
Press.

Miranowski, J. A. and K. F. Alt. 1978. "Policy Costs in the Theory
of Externalities and the Selection of Nonpoint Pollution Policy."
Presented at annual conference of Missouri Valley Economic
Association, February 23-25 (forthcoming in Journal of Economics).

Oates, W. and W. Baumol. 1975. "The Instruments for Environmental
Policy" in Economic Analysis of Environmental Problems, New
York, Columbia University Press.












PROJECTING HYDROLOGIC IMPACT OF A LAND USE PLAN USING USDAHL-74

GARY T. FISHER1, JAMES E. AYARS2, AND GARY K. FELTON3


INTRODUCTION
A primary purpose in developing any model is the prediction of
future events. The development of hydrologic models can generally be
broken into three phases. First, the model is designed and subjected
to initial testing to verify its accuracy. Second, many studies are
done in which the model is applied to watersheds under many physio-
graphic and climatic conditions. Usually the model is tested to see if
it can match past events, the idea being that if past events are modeled
accurately, then future events will be also. In the third phase, the
model is implemented as a practical tool for design or planning. The
USDAHL model is entering the final phase. This paper discusses the use
of the model to predict the hydrologic effects of a land use plan for a
developing watershed. The use of a computed streamflow record for flood
frequency analysis is demonstrated. The consequences of not accounting
for the effects of land use changes when modeling hydrologic processes
are also discussed.

DESCRIPTION OF THE WATERSHED
The Western Branch watershed is located in Prince George's County,
Maryland, in the rapidly developing Washington, D.C. Suburban area. In
the period 1963-1968, the residential area in the Western Branch water-
shed nearly doubled from 11% to 21%. There was little growth through
1974, but the 1962 General Plan (Maryland-National Capital Park and
Planning Commission, 1962) shows about 63% residential area by the year
2000. Continuous records of stage and discharge were obtained from
October 1949 through September 1974 at a Geological Survey stream gaging
station near Largo, Maryland. The watershed has a drainage area of
78.2 km2 and a gage datum of 14.2 m above mean sea level. It is located
in the Atlantic Coastal Plain physiographic province, which is underlain
by unconsolidated deposits of gravel, sand, silt, and clay. The average
annual precipitation for the area is about 1140 mm, and the average


S Project Engineer, Century Engineering, Inc., Towson, Md., 21204. For-
merly Faculty Research Assistant, Agricultural Engineering, University
of Maryland, College Park, Md., 20742.
2Assistant Professor, Department of Agricultural Engineering, University
of Maryland.
3Graduate Research Assistant, Department of Agricultural Engineering,
University of Maryland.



256






PROJECTING HYDROLOGIC IMPACT


annual runoff is about 363 mm. Flooding in the watershed is of parti-
cular concern with increased runoff due to urbanization and floodplain
development (Corps of Engineers, 1972). As is true in most of the humid
East, the area is subject to intense thunderstorms and also to hurricane-
related rains, the sources of most floods. The watershed is illustrated
in Figure 1.

DESCRIPTION OF THE UOM/USDAHL-74 MODEL
The USDAHL-74 model uses a subroutine to represent each hydrologic
process. This type of model structure allows updates to be made easily
as the state-of-the art in hydrologic modeling advances. The hydrologic
concepts in UOM/USDAHL-74 are the same as those in USDAHL-74. The re-
vision was made to improve computational efficiency. For particulars on
the original model and the revision, the appropriate publication should
be consulted (Holtan, Stiltner, Henson, and Lopez, 1975; Holtan and
Yaramanoglu, 1977).

One of the important concepts used in UOM/USDAHL-74 is zoning. Zon-
ing breaks a watershed into areas which are hydrologically homogeneous;
i.e., the distribution of watershed factors affecting hydrology is uni-
form within a zone. Many models consider the entire watershed to be
homogeneous, which is an oversimplification. In addition to better
representing the natural system, zoning can be used in land use planning
to assess the effect which each zone has on the whole system. Zoning
can be by any physiographic characteristic of interest within the water-
shed, but is most often by soil type, topography, or land use. Zones
are numbered in an elevation sequence to permit cascading of water from
a higher zone to a lower zone. The present model structure uses up to
six zones.

Input to the model includes parameters to describe the watershed,
the zones, the soils, the routing, the cascading sequences, and the
vegetation. While a large number of input parameters are required, the
data are easily derived from existing information. In addition to the
watershed parameters, climatic data including precipitation, air temper-
atures, and pan evaporation are necessary. The process of preparing
inputs to the model is illustrated by Figure 2. The USDAHL-74 publica-
tion (Holtan, Stiltner, Henson, and Lopez, 1975) is invaluable in help-
ing to convert raw data into input parameters. Output from the model is
extensive and detailed and is listed in Table 1.

USDAHL AS A PLANNING TOOL
For any model to be a valuable tool for land use planning, computed
streamflow should be sensitive to land use change. Holtan, et al. (1977)
studied the sensitivity of UOM/USDAHL-74 to land use changes. Three
model runs were made in which the only input changed was land use. One
run used the actual sequence of land use changes. The other runs
assumed that land use was constant at the 1963 and 1974 levels. When
actual land use was used, there was good agreement between modeled and
recorded streamflow. Using 1974 land use only, i.e. more impervious
area, resulted in an overestimate of total streamflow. The other ex-
treme, 1963 land use only, resulted in too little streamflow being






IRRIGATION AND DRAINAGE AND WATER RESOURCES


URBAN. RESIDENTIAL
AGRICULTURE/FIELDS
TREES


TO
WASHINGTON. I


USGS STREAM GAGE
01594500






Figure 1. General land use map of the Western Branch watershed.


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PROJECTING HYDROLOGIC IMPACT


estimated. The authors concluded that good documentation of land use
changes is necessary to obtain good results with the UOM/USDAHL-74
model. In other words, the model is sensitive to land use change.

Since the model is sensitive to land use changes, it can be used to
evaluate the effects of proposed changes. The model should first be
calibrated so that streamflow from existing conditions is being accurately
modeled. Then the model could be run using a sequence of proposed land
use changes and appropriate climatic data. In this fashion, the hydro-
logic effects of different rates of development can be studied. The
model computes hydrologic information for each zone in addition to the
watershed. Using this information, the hydroloqic effects of the
location of development can be studied also.

Almost all hydraulic design is related to frequency of flooding.
Since the model computes continuous streamflow, flood frequency tech-
niques can be applied. In fitting flood data to a probability distri-
bution, it is necessary that land use be constant for the period of
record used. This is not the case for an urbanizing watershed. Re-
corded data must be adjusted to account for development before a fre-
quency analysis can be done. With modeling, however, a period of
climatic data can be applied to a watershed under constant land use
conditions, providing the homogeneous streamflow record necessary for
statistical analysis.

Fisher et al. (1977) studied the use of UOM/USDAHL-74 as a planning
tool. They applied the model to three watersheds in different physiogra-
phic regions. They found that the model accurately represented the
hydrology of the watersheds and that the operation of the model is not
significantly affected by differences in physiography. They also found
that the procedures for preparing inputs to the model are structured as
to be easily applied by anyone with a good knowledge of hydrology. Their
conclusion was that the model is a valuable tool for studying the effects
of land use change.

INPUTS TO THE MODEL

One problem in modeling future events using a hydrologic model is
the determination of suitable climatic data. Twelve years of precipitation,
pan evaporation, and air temperature data were available for the study
watershed. It was decided that a random sampling technique could be
used to generate a data set of the required length, in this case 25
years. The 12 years of existing data were divided into weeks. An arti-
ficial data set was then generated one week at a time by randomly
sampling from the 12 corresponding weeks in the existing data set. That
is, the first week of data in year N was sampled from the first weeks of
the 12 years of existing data, and so on. This was done to maintain
seasonal effects on climate. Since there is correlation between pre-
cipitation, air temperature, and pan evaporation, it is appropriate that
the three variables be sampled together.

Land use data for the model should be as detailed as possible. For
the period 1964 through 1974, available land use data included urban/
residential areas, pasture and grasslands, the extent of each major
agricultural crop, and wooded area. To obtain this data remote sensing,






IRRIGATION AND DRAINAGE AND WATER RESOURCES


soil survey maps, and land use statistics were used. For future land use,
information was available in an another form. Master Plans for the areas
including the watershed were obtained from the Maryland-National Capital
Park and Planning Commission (1974, 1976a, 1976b). These plans described
proposed land use from about 1976 through 2000. The categories of land
use which could be obtained for the model were parks, urban, single
family residential, rural, impervious, highway exchanges, and lakes.
Existing and ultimate land use were obtained from maps supplied with the
plans. Interim land use was obtained at five year intervals using in-
formation supplied in the Master Plan text.
To use the UOM/USDAHL model, the watershed had to be zoned. For
model runs between 1964 and 1974, the watershed was zoned by land use
types. These were the zones previously used by Holtan et al. (1977) and
were used to expedite the study. For model runs for future years, the
watershed has been zoned by soils using soil survey maps. There is a
good correlation between soils and land use for this watershed, and the
zonings are very similar.
Other information required for the model included streamflow data
and soils data. Streamflow records were obtained from the U.S. Geo-
logical Survey stream gage on Western Branch. Soils data was obtained
from the Soil Survey for Prince George's County, Maryland. Model para-
meters were determined from the data using principles described in the
USDAHL-74 publication (Holtan et al. 1975).
DISCUSSION

The model was run using previously determined data for the period
1964 through 1973. Agreement between recorded and computed streamflow
was good, with monthly flows having a coefficient of determination (R2)
of 0.699. The streamflow data generated in this run has been used to
demonstrate the ability of the model to supply data for flood frequency
analysis. The results are shown in Fiqure 3. Streamflow data was
fitted to a log-normal probability distribution. The figure shows flood
frequency lines determined from both recorded and computed data. As has
been mentioned, to do a frequency analysis data must be from a period
of no land use changes. The values of recorded streamflow had to be
adjusted using a technique described by Robey (1970). Values were ad-
justed to the 1974 land use level so that they represented the floods
that would have occurred if development were present. Values of com-
puted streamflow for the frequency analysis were obtained by running
the model using 1974 land use throughout the period of computation.
While neither frequency line would be recommended for design because
of the short period of record, there is suitable agreement between
them. This indicates that the model output gives results comparable to
those derived from recorded data. The model tends to overestimate flood
peaks, which accounts for the conservative frequency line for computed
peaks.
The next step to be taken is to project the hydrologic effects of
a land use plan. The randomly generated climatic data and projected
land use information will be used to run the model for the period 1976-
2000. Unfortunately, a completed run was not available in time for this
paper. A problem seems to exist with the generated rainfall data. When



i








PROJECTING HYDROLOGIC IMPACT 263






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IRRIGATION AND DRAINAGE AND WATER RESOURCES


model runs are successful, the computed streamflow will be used to per-
form a flood frequency analysis as described above. A run using 2000
land use throughout will be used for the analysis. This flood frequency
line should be suitable for design purposes, if appropriate confidence
limits are imposed.
Another use of generated streamflow data that can be anticipated is
the determination of statistics such as mean monthly or annual flow. The
validity of these statistics will have to be determined by future re-
search. However, the application brings up an important point to con-
sider. Since the model is sensitive to land use changes, it is important
that land use changes be accurately accounted for in applying the model
if accurate results are desired. The effects on computed streamflow of
not accounting for land use change are cumulative. After a number of
years the effects are very significant, as shown by Holtan et al. (1977).
SUMMARY

The capability of the UOM/USDAHL-74 model for projecting the hydro-
logic effects of land use plans has been discussed. A set of precipi-
tation data was generated which can be used to run the model for the
period 1976 through 2000. Land use data and other model parameters were
also determined for the model. Errors in the precipitation data pre-
vented the running of the model in time for this publication. An
example is presented which illustrates the use of computed streamflow
data in flood frequency analysis. While no results are yet available,
the authors feel that the model will provide data which can be used to
determine reliable estimates of flood flow frequency.








II















___i






PROJECTING HYDROLOGIC IMPACT


REFERENCES

1. Corps of Engineers. 1972. Floodplain Information, Western Branch,
Prince George's County, Maryland. Prepared for the Maryland-National
Capital Park and Planning Commission by Baltimore District, Corps of
Engineers. December 1972.

2. Fisher, G. T., J. E. Ayars, H. N. Holtan, and D. L. Nelson. 1977.
USDAHL-74 as a planning tool. ASAE Paper No. 77-4045, American
Society of Agricultural Engineers, St. Joseph, Michigan.

3. Holtan, H. N., G. J. Stiltner, W. H. Henson, and N. C. Lopez. 1975.
USDAHL-74 Revised Model of Watershed Hydrology. Technical Bulletin
No. 1518, Agricultural Research Service, USDA. December 1975.

4. Holtan, H. N., J. P. Ormsby, and G. T. Fisher. 1977. Applications
of a Maryland Version of USDAHL-74 to A Watershed in Prince George's
County, Maryland. Proceedings, Watershed Research in Eastern North
America, a workshop sponsored by the Smithsonian Institution, Edge-
water, Maryland, Feb. 28-Mar. 3, 1977.

5. Holtan, H. N. and M. Yaramanoglu. 1977. University of Maryland
Version of the USDAHL Model of Watershed Hydrology (Using Minutes
and Integers for Accuracy, Soil Moisture Constants for Convenience
of Inputs, and Variable Routing Intervals for Economy of Operation).
Agricultural Engineering Department, University of Maryland, College
Park. May 1977.

6. The Maryland-National Capital Parks and Planning Commission. 1962.
On Wedges and Corridors, a General Plan for the Maryland-Washington
Regional District.

7. The Maryland-National Capital Park and Planning Commission. 1974.
Sectional Map Amendment, Planning Areas No. 71A and B, 74A and B,
Bowie Vicinity, City of Bowie, Mitchellville and Vicinity, Collington
and Vicinity. June 1974.

8. The Maryland-National Capital Park and Planning Commission. 1976b.
Adopted Master Plan, Largo-Lottsford, P.A. No. 73. June 1976.

9. The Maryland-National Capital Park and Planning Commission. 1976a.
Adopted Master Plan, Glenn Dale, Seabrook, Lanham, and Vicinity,
P.A. No. 70. October 1976.

10. Robey, D. L. 1970. Effects of Urbanization on Annual Peak Flow
Frequency Analysis. Proceedings of a Seminar on Urban Hydrology,
The Hydrologic Engineering Center, Corps of Engineers, Davis,
California, Sept. 1-3, 1970.




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