Title: The Law of Water Allocation In The Eastern United States
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Title: The Law of Water Allocation In The Eastern United States
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Abstract: Richard Hamann's Collection - The Law of Water Allocation In The Eastern United States
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Full Text


THE LAW OF


WATER ALLOCATION


In The Eastern


United States


PAPERS AND PROCEEDINGS OF A
SYMPOSIUM HELD IN WASHINGTON, D.C.
OCTOBER, 1956
SPONSORED BY
THE CONSERVATION FOUNDATION




Edited by
David Haber
PROFESSOR OF LAW
RUTGERS UNIVERSITY LAW SCHOOL

and


Stephen W. Bergen
ASSISTANT DIRECTOR OF RESEARCH
THE CONSERVATION FOUNDATION


THE RONALD PRESS COMPANY


.._


NEW YORK

































Copyright, 1958, by
THE CONSERVATION FOUNDATION, INC.



All Rights Reserved
The text of this publication or any part
thereof may not be reproduced in any
manner whatsoever without permission in
writing from the publisher


Library of Congress Catalog Card Number: 58-5860
PRINTED IN THE UNITED STATES OF AMERICA


















ST SANI


I V

"Fit 1948 "




THE CONSERVATION FOUNDATION


is an independent American organization established
to promote greater knowledge about the earth's re-
sources-its waters, soils, minerals, plant and ani-
mal life; to initiate research and education concern-
ing these resources and their relation to each other;
to ascertain the most effective methods of making
them available and useful to people; to assess popu-
lation trends and their effect upon environment;
finally, to encourage human conduct to sustain and
enrich life on earth.


i








FOREWORD


The paramount need for more effective use and development of our
nation's water resources becomes more apparent as each year passes.
Since the inception of our organization in 1948 we have worked upon
many aspects of the management and use of water. This book is the latest
of the series, which has included national ground water resources, indus-
trial water use, the role of vegetation in watershed management, the ocean
as a possible fresh water source, and the merits of various methods of
flood control. A forthcoming study will review present national programs
of hydrologic data collection and use, and will propose new methods and
procedures. It is gratifying to be able to state that the results of all these
different studies have been published in book form and are being widely used.
Our investigations have been made possible by a series of grants from
the Rockefeller Foundation, which fully shared with us our belief in the
essential importance of improved usages of water resources.
For this study of water law problems, our decision was to attack a
difficult, unsettled subject by enlisting a dozen men, "brave and true," as
principal contributors, and then to provide an appropriate occasion for a
relaxed yet extensive exchange of views between them and others con-
cerned with this field. Our hope by this means was not just to gain per-
spective but to stimulate further new ideas and researches in this area of
water resources management. The liveliness and real freedom of the
meetings were highly encouraging, as were later reports from workers in
various states concerning the help that the symposium afforded them.
Naturally the success of the venture reflected the devotion and keenness of
those who came to contribute.
A crucial part in this project was played by David Haber, Professor of
Law at Rutgers University, who laid out the ways in which a vast field
might be penetrated by the authors and who, as well, contributed an analy-
sis of present Michigan law and the introductory essay. His desire to shake
up accepted ideas and encourage fresh views was indispensable. Stephen
Bergen, a member of our organization, was not only a fellow-editor of
Professor Haber, of this book, but throughout the conduct of the entire
project has been responsible for its formulation and administration. It has
been an arduous task, for the consummation of which both Professor Haber
and Mr. Bergen deserve the greatest credit.
Fairfield Osborn
President
The Conservation Foundation



















I








PREFACE







This book is intended for those who are concerned with questions of
state water rights legislation and water allocation policy. In particular, it
is for investigators and legislators who are seeking means of adapting
existing water laws to changing patterns of water use.
It is a grateful duty to say how many persons made this report possi-
ble. Twelve authors ventured the papers collected here as common start-
ing points for an intensive symposium in October 1956. Fifty persons
joined them for three days, in the calm of The Cosmos Club in Washington,
D.C., to discuss what the papers implied. To all these friends and fellow-
workers the editors are greatly indebted for indispensable contributions
and help, and for making the symposium conversations as useful as they
proved to be. And we express much appreciation to David J. Guy, Execu-
tive, The Cosmos Club, for generous hospitality.
The symposium was sponsored because of the wide concern with water
law problems in so many states, particularly, in recent years, in the hu-
mid eastern half of the country. This concern isbound to persist as water
use continues its rapid growth. Many eastern states now have special stud-
ies under way. In some of these, legislative proposals of various kinds have
been discussed and, in some states, enacted. These developments, as of
summer 1956, are summarized in Part I of Mr. Fisher's first paper.
A leading question in many eastern states has been whether the exist-
ing riparian law of water rights, with its principle of reasonable use,
should be radically altered or even set aside in order to deal more effec-
tively with present and potential conflicts between water users. In general,
recent legislative proposals aim in various ways to clarify rights to use
and store water, and to make rights more secure. Some of the proposals em-
body features of the appropriation law prevailing in the western United
States, so that a second general question has been the relative merits of
the two systems of law in relation to the developing water-use situation
in the eastern half of the country.
These questions served as ready points of departure in planning the
symposium. But as everyone who has entered the water-law labyrinth will
agree, they soon lead to others not easy todefine or investigate. The paths
lead to specific matters of fact and theory in law and economics, and to
broad questions of state water policy and administration.
The task of charting ways into this labyrinth fell to David Haber, Pro-
fessor of Law, Rutgers University, who explored the scope and treatment
of the symposium topics with each author. In order to devote the sessions
to active discussion, the papers were sent in advance to the participants,






LAW OF WATER ALLOCATION


who came from most of the eastern states where water law is in current
debate. Not a few participants traveled far from western states to share
their knowledge of water law and water development in the West.
In part the participants were invited so as to insure that all pertinent
disciplines and backgrounds would be heard from: law, economics, engi-
neering, hydrology, and state and federal water resources development and
administration. The energetic give-and-take of the discussions showed that
practitioners of different backgrounds give and gain much in a gathering
of this kind, provided a paper has set out issues and suggestive material.
The symposium benefited also from the views of observers invited as
representatives of major water-using interests: agriculture, industry, pub-
lic water supply, and recreation; and as representatives of federal agencies
active in the water field. The observers spoke in the closing sessions.
The main lines of inquiry began with accounts of the riparian law in
Massachusetts, North Carolina, and Michigan, each body of law being an-
alyzed in a somewhat different way. A review of certain types of wasteful
water use in western law and practice followed. In connection with the
Michigan study a possible legislative approach to problems of protecting
investment and of promoting optimum use of water in the public interest
was sketched. The constitutionality of recent legislative proposals with re-
gard to existing riparian rights was debated. Two case studies were intro-
duced, one on ground water administration in Lea County, New Mexico, the
other on the Paw Paw basin in southwestern Michigan. These two studies
helped to sharpen the discussions of the merits of particular legal arrange-
ments and of economic and policy issues. Two provocative papers set forth,
respectively, economic concepts used in evaluating water law, and a pro-
posed method of economic analysis for state water planning and develop-
ment, including use allocation.
The discussions were helped immensely by the contributions of those
who had come fresh from work with study groups in various states. In the
concluding session, many speakers outlined subjects meriting further in-
vestigation, including possible ways of combining the best features of the
riparian and appropriation systems in developing new legislation. (See the
final discussions: Legislative Alternatives.) The symposium papers are
reproduced below with an edited transcript of the discussion that they pro-
voked. In his introductory essay Professor Haber draws together the main
threads of the symposium in relation to current problems and present
knowledge of eastern allocation law.

New York Stephen W. Bergen
January 1958







PARTICIPANTS


ACKERMAN, Edward A.
Resources for the Future, Inc.
Washington, D. C.

ADAMS, L. M.
Office of the General Counsel
U. S. Department of Agriculture
Washington, D. C.

ARENS, Richard
Assistant Professor of Law
University of Buffalo Law School
Buffalo, New York

BARLOWE, Raleigh
Professor of Agricultural
Economics
Michigan State University
East Lansing, Michigan

BERGEN, Stephen W.
Assistant Director of Research
The Conservation Foundation
New York, N. Y.

BEUSCHER, Jacob H.
Professor of Law
University of Wisconsin Law
School
Madison, Wisconsin

BILLINGS, Norman F.
Chief, Hydrology Division
Michigan Water Resources
Commission
Lansing, Michigan


BRANN, Paul
Director, Industrial Research
Center
University of Arkansas
Little Rock, Arkansas

BUSBY, C. E.
Soil Conservation Service
U. S. Department of. Agriculture
Berkeley, California

CIRIACY-WANTRUP, S. V.
Professor of Agricultural
Economics
University of California
Berkeley, California

DANIEL, John H.
Chairman, Virginia Committee on
Water Resources
Charlotte Court Hourse, Virginia

DAVENPORT, L. A.
Game Division
Michigan Department of
Conservation
Lansing, Michigan

DAVIS, Jeff
Member, Arkansas Water
Commission
El Dorado, Arkansas

ELLIS, Harold H.
Production Economics Research
Branch
Agricultural Research Service
U. S. Department of Agriculture
Washington,. D. C.


L







LAW OF WATER ALLOCATION


FALK, Richard A.
Assistant Professor of Law
Ohio State University
Columbus, Ohio

FISHER, Clyde O., Jr.
Attorney, City Plan Commission
New Haven, Connecticut

FOX, Irving
Resources for the Future, Inc.
Washington, D. C.

FREDERICK, William L.
Assistant Director
Council of State Governments
Chicago, Illinois

GREGORY, G. Robinson
Pack Professor of Resource
Economics
University of Michigan
Ann Arbor, Michigan

HAAR, Charles M.
Professor of Law
Harvard Law School
Cambridge, Massachusetts

HABER, David
Professor of Law
Rutgers University Law School
Newark, New Jersey

HARRIS, Charles D.
Special Assistant Attorney
General
Roswell, New Mexico

HUFFMAN, Roy E.
Professor of Agricultural
Economics
Montana State College
Bozeman, Montana


HUFSCHMIDT, Maynard M.
Research Associate
Graduate School of Business
Administration, Harvard
University
Cambridge, Massachusetts

INGLER, Charles W., Jr.
Supervisor of Research
Ohio Legislative Service
Commission
Columbus, Ohio

KRUTILLA, John V.
Resources for the Future, Inc.
Washington, D. C.

LORD, Russell
Bel Air, Maryland

MALONEY, Frank E.
Professor of Law
University of Florida
Gainesville, Florida

MARQUIS, Robert H.
Assistant General Counsel
Tennessee Valley Authority
Knoxville, Tennessee

NELSON, Arthur
Member, Mississippi Board of
Water Commissioners
Jackson, Mississippi

SMITH, Robert L.
Executive Secretary
Kansas Water Resources Board
Topeka, Kansas

SNOW, Beverly C.
Department of Conservation &
Development
Raleigh, North Carolina







PARTICIPANTS


STEIN, Murray
Chief, Interstate Enforcement
Section
Water Supply & Water Pollution
Control Program
Public Health Service
Department of Health, Education
& Welfare
Washington, D. C.


THOMAS, Harold E.
U. S. Geological Survey
Menlo Park, California


TIMMONS, John F.
Professor of Economics
Iowa State College
Ames, Iowa


RELEASE, Frank
Professor of Law
University of Wyoming
Laramie, Wyoming

WOLLMAN, Nathaniel
Professor of Economics
University of New Mexico
Albuquerque, New Mexico

WOLMAN, Abel
Professor of Sanitary Engineering
and Water Resources
The Johns Hopkins University
Baltimore, Maryland

ZIEGLER, Wilbert L.
Legislative Research Center
Michigan Law School
Ann Arbor, Michigan


OBSERVERS


American Farm Bureau Federa-
tion
BUTLER, Charles C.
Director, Land & Water Use
Washington, D. C.


American Water Works Associa-
tion
JORDAN, Harry E.
Secretary, American Water
Works Association, Inc.
New York, New York


Council of State Governments
BASICH, George
Council of State Governments
Washington, D. C.


League of Women Voters
FOLEY, Miss Constance
DRAKE, Miss Dixie
Washington, D. C.

National Association of Manufac-
turers
MOORE, Clarence S., Jr.
Senior Water Consultant
E. I. DuPont de Nemours & Co.
Wilmington, Delaware

National Association of Manufac-
turers
PARTAIN, Lloyd
Manager, Trade & Industry Re-
lations
Curtis Publishing Co.
Philadelphia, Pennsylvania


i







LAW OF WATER ALLOCATION


U. S. Chamber of Commerce
(Natural Resources Committee)
ROUNER, T. J.
New England Power Co.
Boston, Massachusetts
U. S. Department of Agriculture
CLARENBACH, Fred
Production Economics Research
Branch
Agricultural Research Service
Washington, D. C.
HERRICK, Virgil C.
Production Economics Research
Branch
Agricultural Research Service
Washington, D. C.
STEELE, Harry A.
Production Economics Research
Branch
Agricultural Research Service
Washington, D. C.



BURDEN, Dr. Robert P.
Assistant Director for Agriculture
Rockefeller Foundation
New York, New York

DAOUST, William
State Geologist
Department of Conservation
Lansing, Michigan

GRAFTON, Robert T.
Counsel, Central & Southern Florida
Flood Control District
West Palm Beach, Florida


U. S. Department of the Interior
MADDOCK, Thomas, Jr.
Bureau of Reclamation
Washington, D. C.


Corps of Engineers, Department of
the Army
CURTIS, Donald
Assistant Chief of Policy Branch
Planning Division
Washington, D. C.

DALRYMPLE, Lt. Col. Robert
Assistant Chief of Civil Works
Office of the Chief of Engineers
Washington, D. C.

JOHNSON, James
Assistant to the Special
Counsel
Washington, D. C.



HINES, L. Gregory
Professor of Economics
Dartmouth College
Hanover, New Hampshire

MANNING, Bayless A.
Professor of Law
Yale University
New Haven, Connecticut

MARTIN, Roscoe C.
Professor of Political Science
Syracuse, New York


The Conservation Foundation
Fairfield OSBORN, President
Samuel H. ORDWAY, Jr., Executive Vice President
Robert G. SNIDER, Vice President and Director of Research







CONTENTS
For Detailed Contents,
See Following Pages.






Introductory Essay, xxv
Legislative Change of Water Law in Massachusetts, 1
Proposed Surface Water Law for Michigan, 49
DISCUSSIONS, 63
Western Experience and Eastern Appropriation Proposals, 75
Water Allocation under the Appropriation Doctrine in the Lea County
Underground Basin of New Mexico, 155
Hydrology versus Water Allocation in the Eastern United States, 165
DISCUSSIONS, 181
Some Legal Aspects of Water Use in North Carolina, 189
DISCUSSIONS, 371
Michigan Law of Water Allocation, 377
DISCUSSION, 430
Due Process and the Effect of Eastern Appropriation Proposals on
Existing Rights, with Special Emphasis on the Michigan Proposal, 441
DISCUSSIONS, 485
Some Economic and Policy Aspects of the Water Use Problem in the
Paw Paw Basin, 495
Technical Aspects of Water Management Practices for the Paw Paw
Basin, 511
DISCUSSIONS, 518
Concepts Used as Economic Criteria for a System of Water Rights, 531
DISCUSSIONS, &9 553
Economic Factors in the Study of Water Use, 565
DISCUSSIONS, 581
Legislative Alternatives. Further Studies Needed, 595
Bibliography, 637


i









DETAILED CONTENTS







Page
PARTICIPANTS AND OBSERVERS AT THE SYMPOSIUM ......... vii
INTRODUCTORY ESSAY ................................ xxv
David Haber
LEGISLATIVE CHANGE OF WATER LAW IN MASSACHUSETTS: .... 1
A CASE STUDY OF THE CONSEQUENCES OF
INTRODUCING A PRIOR APPROPRIATION SYSTEM
Charles M. Haar and Barbara Gordon
Introduction, 1
Comparison of present Massachusetts law and
proposed Michigan legislation, 2
The riparian doctrine, 2
Present law, 3
The Mill Acts, 8
The watershed definition, 10
Navigable streams, 12
Effect of proposed bill, 14
Waterand watercourse, 15
Present law, 15
Change in law, 17
Surface water, 18
Present law, 18
Change in law, 18
Riparian land, 19
Present law, 19
Limitations upon water right, 20
Present law, 20
Change in law, 24
Capture of surface water, 25
Present law, 25
Effect of proposed law, 27
Appurtenant water rights, 27
Present law, 28
' Effect of proposed law, 28






LAW OF WATER ALLOCATION


Abandonment of water right, 28
Present law, 29
Effect of proposed law, 30
Judicial proceedings to enforce Act, 30
Present law, 30
Note on ground water, 31
Some tentative conclusions, 35
Introduction, 35
Massachusetts experience with prior appropriation, 36
Certainty conducive to investment, 38
Factor of waste, 38
Choice of agency, 39
Presumption against administrative agencies, 39
Market mechanism and water law, 40
Different methods of meeting problems, 41
Question of staff; the adversary process, 41
Interrelatedness of river users, 42
Role of the master, 43
Prospective operation of the agency, 44
Need to compensate, retroactivity, and the judiciary, 45
Role of a comprehensive plan, 46
Conclusion, 47
PROPOSED SURFACE WATER LAW FOR MICHIGAN ............ 49
DISCUSSION: Judicial expertise, 63
DISCUSSION: Water for irrigation, East and West, 67
Transferability of water rights, 67
DISCUSSION: Possibility of detailed planning, 69
DISCUSSION: Background of appropriation legislation
in Mississippi in 1956, 70
WESTERN EXPERIENCE AND
EASTERN APPROPRIATION PROPOSALS .................. 75
Clyde 0. Fisher, Jr.
PART I EASTERN INTEREST IN WESTERN LAW
Aim and scope of paper, 75
Riparian system of water rights, 76
'Description, 76
Advantages, 78
Problems, 78
Administrative appropriation system of western law, 81
Description, 81


a







CONTENTS


Appropriation rights, 82
Creation and loss, 82
Priority, 82
Place, purpose, time, and amount of use, 82
Administrative procedures, 83
Acquisition of new rights, 83
Adjudication of early rights, 84
Distribution of water, 85
Advantages, 85
The eastern water law movement, 87
Recent "riparian system' legislation, 89
Recent appropriation proposals, 90
PART II WASTE AND OTHER PROBLEMS IN WESTERN LAW
Introduction, 94
Problems of waste and remedies for them, 95
The problems, 95
Wasteful amounts, 95
Application of water to the given use, 96
Conveyance of water from stream to place of use, 97
Method of diverting water from the stream,. 98
Wasteful location, 98
Excessive channel losses in satisfying downstream priorities, 99
Location preventing full utilization of seepage and return water, 99
Use on poor land, 100
Political restrictions on place of use, 101
Wasteful purposes, 102
Temporarily more important uses, 102
Permanently more important uses, 103
The remedies, 104
Reasonable beneficial use, 105
Wasteful amounts, 106
Wasteful locations, 112
Wasteful purposes, 115
Forfeiture, 118
Preferences, 123
Surbordination or termination of existing uses, 124
Preferences in acquisition of new rights, 127
Applications contrary to the public interest, 129
Withdrawals or appropriations by the state, 131
Limitations on duration of rights, 132
Fees for the use of water, 134






LAW OF WATER ALLOCATION


Possible trend toward a less strict enforcement of priorities, 134
Summary, 138
Problems other than those relating to waste, 139
Coexistence of appropriation and
riparian rights of reasonable use, 140
Rights to return water, 141
Acquisition of prescriptive rights, 142
Inadequate data on the amount of unappropriated water, 143
PART III WESTERN PROBLEMS AND THE
EASTERN APPROPRIATION PROPOSALS
Problems other than those relating to waste, 145
Coexistence of appropriation and
riparian rights of reasonable use, 145
Rights to return water, 146
Acquisition of prescriptive rights, 146
Inadequate data on the amount of unappropriated water, 147
Problems of waste, 148
Anticipating problems of waste in the granting of new rights, 149
Dealing with waste under existing rights, 150
Conclusion, 152
WATER ALLOCATION UNDER THE APPROPRIATION DOCTRINE
IN THE LEA COUNTY UNDERGROUND BASIN OF NEW MEXICO ... 155
Charles D. Harris
HYDROLOGY VERSUS WATER ALLOCATION IN
THE EASTERN UNITED STATES ......................... 165
Harold E. Thomas
Contrasting water rights doctrines, 165
Contrasting hydrology of eastern and western United States, 166
General objectives of legislation on water allocation, 167
What water should be subject to regulation? 168
Legislation proposed in some eastern states, 172
Problems for legislation, 174
Protection of developed rights, 174
Record of rights, 175
Administrator's authority and responsibility, 176
Policy guides, 176
Preferential use versus priority of use, 177
"Used" water, 177
Essential hydrologic data, 178
Summary, 178


xvi







CONTENTS


DISCUSSION: Beginnings of western water law.
Definition of waste; beneficial use, 181
DISCUSSION: Allocation to groups of users, and rotation of use, 183
DISCUSSION: Water quality, 183
DISCUSSION: Flexibility of western law, 186
SOME LEGAL ASPECTS OF WATER USE IN NORTH CAROLINA .... 189
Harold H. Ellis
The applicable laws, 189
The State's policies regarding water resources, 190
Types of water sources, 192
Natural watercourses, 192
Definition, 192
Classification, 194
General nature of riparian rights, 194
General development of the riparian doctrine, 196
Time of use and effect of nonuse, 206
Definition of riparian land and use of water on nonriparian lands, 207
Priorities or preferences based on type of use, 211
Domestic or other natural uses, 212
Irrigation, 215
Administrative permits for irrigation, 218
Other agricultural purposes, 223
Mining, 224
Municipal or public water supply, 225
Water and sewer authorities, 230
Sanitary districts, 232
Joint municipal water supply facilities, 233
Other public water supply functions, 233
Vendibility and location of use, 233
Other consumptive uses, 234
Detention or obstruction of water with dams, etc., 235
Damage to property or use of property below, 235
Damage to property or use of property above, 238
Significance of ownership of bed and banks, 240
Legislation, 242
Fishing, 243
Other noncopsumptive uses, 245
Navigable waters, 246
Classification, 246
Riparian rights as between riparian owners and as against
navigation and other public rights, 251


xvii







LAW OF WATER ALLOCATION


Dams and other obstructions, 254
Floatable streams, 258
Floating logs in nonfloatable streams, 259
Rights and regulation of navigation, 259
Navigation vs. other public rights, 260
Fishing, 260
Significance of private ownership
of bed of navigable watercourse, 263
Federal interest in navigable waters, 265
Additional considerations, 270
Natural lakes and ponds, 270
Place of diversion, 271
Boundaries of watercourse and related matters, 272
Instances where prior use may receive
preferential treatment, 275
Flood waters, 277
Watershed protection and flood prevention, 278
SArtificial and developed watercourses, 279
Artificial watercourses, 280
Rights in and to use pond or lake created
by dam in watercourse, 282
Other artificial ponds or lakes, 284
Ground waters, 284
Percolating ground waters, 284
Definite underground streams, 289
Legislation, 291
Springs, 291
Surface waters, 292
Rights of use, 293
Drainage, 295
Levee or drainage districts, 298
Drainage by counties, 301
Pollution, 301
Legislative protection of public drinking water supplies, 305
Protection of fish, 308
Other special privileges or protection, 309
Tax inducements, 310
Agencies and organizations having pollution control
powers and related duties, 310
State Board of Health, 310
State Stream Sanitation Committee, 312
Sanitary districts, 315


xviii






CONTENTS


Water and sewer authorities, 317
Other local agencies and organizations, 317
Special state laws relating to pollution of particular streams, 318
Interrelationships among water sources, 319
Transfer or assignment of water rights, 320
Other contractual arrangements, 322
Legal remedies, 323
Money damages, 323
Injunction, 324
Balancing of interests, equities, or conveniences, 327
Liability without damage, and vice versa, 332
Liability even though lawful use, 333
Joint liability, 333
Declaratory judgment, 333
Determining legal rights under agreed facts, 335
Particular statutory remedies, 336
Prescriptive rights, 336
Estoppel, 340
Dedication to public use, 341
Condemnation and related proceedings, 342
Condemnation for or by various purposes, persons,
agencies or organizations, 342
Municipal or public water supplies and sewer systems, 342
Hydroelectric power dams and related purposes, 345
Milldams and related purposes, 346
Mining, 346
Drainage, 346
Related proceedings, 349
Emergency water supply, 349
Permanent damages, 351
Determination of amount of compensation, 354
Use of property or water rights acquired by condemnation, etc., 358
Functions of certain state and local agencies and organizations, 359
State Board and Department of Conservation and Development, 359
State Board of Water Commissioners, 360
State Wildlife Resources Commission, 361
State Ports Authority, 362
State Recreation Commission, 362
Public Utilities Commission, 362
Soil Conservation Districts, 363
Corporations and cooperatives, 364
Neuse River Watershed Authority, 364







LAW OF WATER ALLOCATION


John H. Kerr Reservoir Development Commission, 366
State Planning Board, 366
Legislation on water rights proposed in 1955, 367
DISCUSSION: Necessity for legal studies and legal change, 371
DISCUSSION: Irrigation permits: North Carolina, Mississippi, 374
MICHIGAN LAW OF WATER ALLOCATION ................... 377
Richard Arens Part I Description
David Haber Part II Evaluation: protection of investment,
the public interest, and state water policy.
PART I DESCRIPTION
Introduction, 377
Riparian rights, 379
Apply to a natural watercourse, 379
Attach only to riparian land, 380
Reasonable use, 381
Pollution and the reasonable-use criterion, 383
Diversion for consumptive use, 384
Preference for domestic use, 384
Preference for upper user, 385
Preference for riparian against nonriparian user, 386
Ground water, 387
Diffused surface waters, 393
The Civil Law Rule relating to drainage, 394
Remedies, 395
Prescription, 398
Private transfer of water rights, 401
Supervening rights of the public, 402
Navigation and floatage, 402
Fishing and fowling, 405
Governmental powers and activities, 407
Regulatory and development activities, 407
Navigation, 407
Water supply and water power, 408
Pollution control, 409
Drainage, 409
Inland lake levels, 411
Coordinated control and development, 411
Constitutional limitations on regulation and development
of water resources, 412
Works of internal improvement, 412
Police power, 413







CONTENTS


Condemnation, 414
Measure of damages in condemnation proceedings, 415
PART II EVALUATION
Introduction, 417
Protection of investment, 418
Aspects of Michigan law tending to make investment hazardous, 418
Aspects of Michigan law tending to protect investment, 419
Public interest, 420
Potentialities of the riparian law, 420
General preferences, 420
Community-benefit considerations and the hydrologic cycle, 421
Prescription, 422
Relationship between public interest and protection of investment, 422
Flexibility of the law, 422
Purchase and sale of water rights as a water use regulator, 423
Balancing public interest and investment protection, 424
Administration, 425
An approach to a water use statute, 425
Possible constitutional objections, 426
Allocation by the courts and state water development, 428
Water planning and allocation by an administrative agency, 428
DISCUSSION: The hydrologic cycle and the law.
Role of administrative agencies and of the courts, 430

DUE PROCESS AND THE EFFECT OF EASTERN APPROPRIATION
PROPOSALS ON EXISTING RIGHTS, WITH SPECIAL EMPHASIS ON
THE MICHIGAN PROPOSAL .............................. 441
Clyde 0. Fisher, Jr.
Introduction, 441
Discussion of sections of the Michigan proposal purporting
to preserve existing rights, 442
Cases upholding modification of riparian rights on theory riparian
has no fixed rights in the particulars of a riparian system of
allocation, 447
How far vested riparian rights may be modified under the police
power, 456
Surface water cases, 456
Ground water, oil and gas cases, 465
Constitutionality of the Michigan proposal, 476
Some specific suggestions on the drafting of the Michigan proposal, 483
DISCUSSION: The taking of unused rights, 485






LAW OF WATER ALLOCATION


DISCUSSION: Easement holders as riparians; the right to municipal
water supply under the riparian system, 490
SOME ECONOMIC AND POLICY ASPECTS OF THE
WATER USE PROBLEM IN THE PAW PAW BASIN .............. 495
Raleigh Barlowe
Economic importance of water resources, 495
Domestic and municipal uses, 496
Industrial and power uses, 496
Recreational uses, 499
Agricultural uses, 500
Types of information needed for economic analysis, 502
Some emerging policy problems, 504
With maximum utilization of surface supplies, 504
With maximum utilization of surface and ground water supplies, 506
With demand large enough to justify recharge of ground water, 507
With demand such as to justify diversion from Lake Michigan, 508
Conclusion, 509
TECHNICAL ASPECTS OF WATER MANAGEMENT
PRACTICES FOR THE PAW PAW BASIN ................... 511
Norman F. Billings
Introductory remarks, 511
Physical conditions, 511
Present water use and development, 512
Hydrology as an aid in developing legislation, 513
Hydrology as an aid in post-legislation water management, 513
Establishing minimum streamflows and lake levels, 514
Regulation of diversions, 514
Excess water storage on-channel, 515
Excess water storage- off-channel, 515
Ground water problems, 516
Indirect improvement through cooperative effort, 516
Conclusions, 517
DISCUSSION: Public rights in public waters.
Effect of uncertainties of riparian law upon
investment for irrigation, 518
DISCUSSION: Investment protection and the public interest
under riparian and appropriation law, 522
DISCUSSION: Relationship of ground and surface water rights
under appropriation laws, 527
DISCUSSION: The need for further studies; hydrologic data in
relation to water-management policy, 527





I


xxii







CONTENTS


CONCEPTS USED AS ECONOMIC CRITERIA
FOR A SYSTEM OF WATER RIGHTS ...................... 531
S. V. Ciriacy-Wantrup
Economic criteria "in" and "for" water law, 531
Interpretation of "security" of water rights, 533
Security of water rights and protection of investment, 538
Interpretation of "flexibility" of water rights, 541
Welfare economics and water allocation, 545
Economic criteria and the public interest, 549
DISCUSSION: Merits of the appropriation system;
flexibility in water rights, 553
DISCUSSION: Physical versus economic water supply, 556
DISCUSSION: The appropriation system: transferability of
water rights and the social welfare, 557
DISCUSSION: Does flexibility of the appropriation system
justify adoption in the East? 559
DISCUSSION: Temporary permits, 562

ECONOMIC FACTORS IN THE STUDY OF WATER USE .......... 565
Nathaniel Wollman
Introduction, 565
Changing economy of New Mexico and water use, 565
Competition for the limited waters of the State, 566
Origin of the proposed study, 567
The theoretical background, 568
Optimism water use and the market, 568
Departures from a perfectly competitive market, 569
Inter-regional flow of income payments, 569
A regional study of water policy, 570
Some problems of method, 572
Estimates of product and income payments, 572
A free market for water, 573
The net product approach and benefit-cost analysis, 574
Conclusion, 575
Glossary, 578
DISCUSSION: A state water corporation, 581
DISCUSSION: Public ownership of water resources and the market, 586

LEGISLATIVE ALTERNATIVES. FURTHER STUDIES NEEDED .... 595
DISCUSSION: Legislative alternatives:
a) Classification and reform of riparian law, 595


xxiii







LAW OF WATER ALLOCATION


DISCUSSION:




DISCUSSION:


DISCUSSION:




DISCUSSION:

DISCUSSION:
DISCUSSION:


Legislative alternatives:
b) Prior appropriation- institutions and governmental
agencies operating under appropriation law but de-
veloping and distributing water on different bases, 597
Legislative alternatives:
c) Special districts and storage of water
under riparian law, 609
Importance of water rights legislation for solving
water allocation problems.
The role of a water allocation and development plan.
Basic information, 612
Alternative legislation short of western appropriation
or water-planning legislation, 617
Further studies, 625
Current water law studies at the
University of Michigan, 636


BIBLIOGRAPHY ..................................... 637


xxiv




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