Title: Discussions
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Title: Discussions
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Publisher: The Ronald Press Company
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Discussions
General Note: Box 12, Folder 7 ( The Law of Water Allocation In The Eastern United States - 1956 ), Item 5
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DISCUSSION: Judicial expertise.


MR. HUFSCHMIDT: Mr. Haar, would you elaborate a little bit on this
point you made about the court not having expertise and being at the mer-
cy of the opposing sides?
What about the possibility of the court's being aided by an administra-
tive fact-finding agency, as in the executive branch of the [Federal]
Government, which did basic-data gathering clear up to basic planning; if
the courts had that type of relatively disinterested information available,
wouldn't that help them make these "reasonable rise" decisions on a bet-
ter basis than they have in the past?
MR. HAAR: I suppose it would. The only difficulty with that type of
suggestion is that the court would stop being a court. It wouldn't be the
agency we have known, that we have lived with...
There is a great difference between the adversary system, which is
the court primarily, where the judge is theoretically supposed to expose
himself only to that kind of information and knowledge-I mean, aside
from judicial notice, and a lot of other exceptions-that the lawyers bring
to him, and with each lawyer having the right to cross-examine the other
side, to know what is in the mind of the judge, and to have certain kinds
of procedures with respect to extracting the truth, on the one hand, and
the administrative agency on the other...
There are different kinds of questions. I suspect...that there are cer-
tain aspects of this problem that you could leave to a disinterested third
party. We have the court psychiatrist coming into play ... [and] in an
antitrust suit, sometimes, two experts... [But to] have a court decide a
case based on the information of an administrative agency that has a
certain policy to administer would, I think, break down the judicial
process.
MR. HUFSCHMIDT: I think you are reading a little something into
my statement. Maybe that was because I didn't phrase it correctly. All
I meant was that if we have the level of data and information about
[river] basins up to a higher standard, and if, for example, the courts do
turn to the master system, as they have in some cases, then all of
these facts will operate to give us better decisions through this adver-
sary process without going to an administrative agency to make these
rules.
MR. HAAR: I think this is what Mr. Thomas has in mind in his pa-
per.* If it becomes a matter of scientific knowledge- [for instance], of
the hydrologic cycle, and the distinction that the court draws between
surface and ground waters is not based in fact-then the courts, I think,
can readily take this into account. They can take judicial notice of it, or
by other procedure know about it, and base their decisions more ration-
ally on the basis of that.

See pp. 169-172, 174.







LAW OF WATER ALLOCATION


I think one of the problems we will have here is to delimit those areas
in which, even under a judicial system, you can eliminate.. [scientifically
unsound contentions] of [a particular] adversary...
MR. HARRIS: A fact-finding board for the courts has been extensive-
ly used in the West. In Oregon the state engineer acts as a master in ad-
judication and makes recommendations to the court... In almost all cases
in the West where you use the administrative system, or the judicial
system, there is tremendous use of special masters. If you do use the
judicial system in the East, it would seem to me you would have to use
technically qualified special masters as a fact-finder for the court...
MR. WOLMAN: Those water problems of the East which have turned
out to be most acute in the last 25 or 30 years have been on the interstate
issues because of the diversion and pressures. And, invariably, in those
disputes masters have been the consistent route by which fact-finding has
been accomplished. I think it is important that that should be remembered.
It is equally important to point out that there are a great many Eastern
states that for well over a quarter of a century have had both basic law
and administrative practice in allocation. The state about which I am
least ignorant, my own Maryland, has had it since 1933, and North Caro-
lina, in many respects, has had some similar administrative fact-finding,
and to some extent allocations. I rather suspect that the area of both
fact-finding and of allocation in the eastern states is not quite as barren
as some people have assumed.
CHAIRMAN HABER: Just a brief comment on this fact-finding func-
tion of an agency. There are certain areas, like corporate reorganization,
where the judges on the bench usually, in terms of their experience, are
as expert as the agency, and even though the Securities and Exchange
Commission will come into a corporate reorganization and make recom-
mendations, it isn't always honored because the judges feel fairly compe-
tent to deal with some of the questions that come up.
I think, however, that the minute you do have an administrative agency
in a field like water allocation, which will tend to get very technical after
awhile, that you might as well face the fact that in many instances the
agency's view will be accepted, that is, that you are going to get the agen-
cy not merely as a fact-finder, but the agency is going to have to make
recommendations, and the recommendations are very likely to be ac-
cepted unless it is a great big political issue.
So, you would then be settling for the fact that the court really acts as
an agency to stop extreme injustice, but does not really go into the metic-
ulous handling of the case.
In the interstate disputes that you mentioned, it is extremely interest-
ing sometimes to read the master's opinion and then to read the Supreme
Court opinion, because very frequently the Supreme Court opinion is
practically a copy of the master's opinion, with a little preface and a
little conclusion at the end.







SYMPOSIUM DISCUSSION


MR. WOLMAN: Not always. In the Great Lakes case, in the Chicago
diversion, it is rather interesting that the master in that case was Mr.
Hughes, who was completely reversed by the court, indicating, I think,
a very salutary effect. I am not determining which was right. But the
court reserved the right to differ with even so eminent an investigator
as Mr. Hughes.
In the Connecticut case, the Delaware case, the court accepted in toto
two masters' prescriptions, which I happen to feel were not only intelli-
gent but highly logical, and very expert, incidentally.
What you are pointing out, Mr. Haber, to my mind, is the problem of
public administration in general, not only as restricted to water, that it
finally takes on to itself a quality of omniscience which is not always
there. But that is a human problem.
MR. HAAR; One goes even further than that. Someone said that they
would rather write their country's songs than the law. I would rather
write the facts than the law, because in writing the facts you will get the
laws the way you want them. That is what I think Mr. Haber had in mind,
that by stressing certain facts, by telling the story one way, all reason-
able people would have to come out with the legal conclusion that way.
MR. HARRIS: Regardless of which system will be used, I daresay
everyone will agree that the adversary system will not completely work
in water, if you assume that there is a public interest involved.
Therefore the law, I would venture to say, the trend of the law will be
toward correcting or helping the adversary system, because you cannot
get two parties in that will give the court or administrator the full value
of the public viewpoint, and the adversary system to that extent will have
to be modified, whether you use the court or the administrator.
MR. HAAR: On that last point...in a free speech case [for instance,
where you might have] a municipality against a Jehovah's Witness-what-
ever your lineup happens to be-and I assume you have this adversary
setup, the people aren't worried about the social.aspect being perceived
by the judges even though they dissent among themselves.
I would just modify your statement about the limitations of the adver-
sary system when there is a social interest by saying that to the extent
that the courts come in and say, "We will recognize a social interest,"
that criticism is diminished. But then you have the next problem: Is the
court a proper agency-we are back to our old problem-of injecting, of
weighing the social interest even if they are willing to take it into account
although not raised by the parties. That may push you into the conclusion
that, no, that maybe we need this new kind of fellow, this administrative
bird.
MR. HARRIS: I don't think that necessarily follows. I think our
court system can be flexible enough, if necessary, that they will have to
consider the public interest and techniques will have to be used whereby
the court will be informed on the public interest. If the parties them-







LAW OF WATER ALLOCATION


selves do not give the court that information, they will have to use other
techniques.
MR. THOMAS: I think one other point here is that in the adversary
system you are definitely picking specific information concerning a speci-
fic dispute. Water itself does not lend itself to such a thing. The whole
hydrologic cycle may be involved and these two people are talking about
only a very specific thing, in complete ignorance that relations outside of
what is introduced in evidence are prevailing.
In that case, the thing falls down. Isn't it true by the rules of evidence,
that the judge cannot point out that their cases were not substantial
enough and there was more evidence needed before a just decision could
be rendered, or would he be able to do that?
MR. BEUSCHER: I am answering in terms of a patent case decided
by a federal court a good number of years ago. It involved, as I remember,
whether or not you could use camel's hair to strain cottonseed oil. The
adversaries didn't offer any proof one way or the other. This seemed to
the federal judge to be the real issue of the case. So he sent around to 17
libraries all over the country and got the works that were available on
use of camel hair to strain cottonseed oil and took judicial notice and
then decided the case. There is this doctrine that can help out in the ex-
treme situation imposed.
MR. THOMAS: Seventeen libraries might still not have that informa-
tion. Then the judge takes judicial notice of the information available,
but it is still not available.
MR. HAAR: If 17 libraries don't have it, who does?
MR. THOMAS: It is perhaps something that you or I may have to go
out and get.
MR. HAAR: That is the difference between courts and commissions.
You have to decide it. I think that is an important limitation and impor-
tant truth in this matter, that you can't wait or find out; life has to go on.
If the 17 libraries don't have it, I think I would just decide it by-I don't
know, maybe I would ask my four-year daughter or toss a coin. Youhave
to decide it. That is the issue.
There is one point that I think is true that Mr. Thomas had in mind,
the binding effect of other parties on the river, particularly in interstate
disputes, in getting jurisdiction. I think that is a tough one for a court to
handle. I suppose it is as tough for an administrative agency, although
perhaps they can deal with it a little better.
MR. ARENS: I think the rules of evidence are sufficiently flexible to
accommodate a most diverse type of judicial inquiry peripherally related
to the major issue, if the court is inclined. The question is, is the court
so inclined?
I think you ought to note beyond consulting 17 libraries the courts are
free and occasionally encouraged by the Supreme Court of the United
States to call their own expert witnesses and thereby minimize the clash







SYMPOSIUM DISCUSSION


of opposing experts, which is posed as the great bugaboo of the adversary
system.
CHAIRMAN HABER: Calling their own expert witnesses presupposes
that there is an expert in the field. One of the advantages of having some
agency interested in allocation would be that there would be experts in
* the field. This is what you don't have today...
The second point I would like to make is that, despite the great flexi-
bility of the rules of evidence, a court very rarely wants to stick its neck
out that way. It sometimes may feel strong enough but usually it is safer
to stick to the facts presented by the parties...
You might also make the rules of procedure more flexible so you could
enjoin, let us say, various parties who would be affected by a particular
allocation and get them into court, force them into court. But the one
thing I would like to say about that that should not be overlooked is the
expense of this kind of a proceeding to the various parties involved. They
would not only have to come in and have their own lawyers, but they would
have to hire experts, and their experts would have to study the interrela-
tionship of a whole stream, and this is a tremendously expensive business.
Whether an administrative system would make for less expense is a
good question. We find in the development of administrative law that
gradually the administrative agencies, though they have usually a public
representative and a public point of view and their own experts, also have
a judicial function.
In the judicial function there Is again an adversary proceeding that
takes place, and there are again experts for the various-parties who ap-
pear, and so the cost of the litigation to the parties is again fairly high;
and you may add another step, instead of being able to go just into court,
you frequently have to go into an administrative agency and fight it out
there, and then sometimes under certain procedures you have to fight it
out all over again in the courts. So, you may have increased the expense
to litigants by introducing the administrative agency.
MR. HAAR: Certainly to the general taxpayer. This may be one of the
problems in this whole area, that is, that the people who are most direct-
ly concerned with a water dispute ... the litigants in the particular case,
may want to shove off the expense of some of this onto the general tax-
payer via an administrative agency which is paid for by all of us. I think
that is one of the factors here.


DISCUSSION: Water for irrigation, East and West. Transferability of
water rights.


MR: NELSON: I would like to ask Professor Haar a question. It is
in your paper as well as in others. One of the things that seem to be







LAW OF WATER ALLOCATION


against the appropriation idea is that it freezes uses that were in vogue
at the time the appropriations were made. I know that has been true in
California... I am wondering if we shouldn't take cognizance of the fact
that in California the land to which water has been attached is relatively
worthless, if you take that water away. Whereas, in the eastern part of
the country, that would not necessarily be so... In the East here we have
enough water, in addition to enough water from normal rainfall, so that
agriculture was possible long before irrigation was thought of, whereas
in the West a piece of land without its water--if you were to buy the water
rights from a man, he can no longer farm that land, if you want to change
that water over to an industrial use. In the East it might be possible to
buy and sell these water rights, with much more flexible use, and still
not destroy the agricultural community.
MR. HAAR: Assuming the agricultural community in the East or the
one that you are buying out has water elsewhere. It seems to me, if you
have enough water, you don't need any system, in a sense. Law arises
out of a scarcity, not a surfeit. The problem begins to arise when you
begin to get scarcity...
MR. HABER: I think [Mr. Nelson's] point-I am not sure-was that,
in the West, once you appropriate water to the farmers, because they are
so dependent on irrigation, they will not sell the water rights, while here
in the East irrigation is a matter of additional income to them, not of the
very life-line of their farm; therefore, even if they have a water right to
irrigate, they might, if they are offered a high enough price, be willing to
sell it because they can still go on farming without the irrigation right;
therefore, you are not going to freeze anything as much here as you might
have frozen it in the West by granting these irrigation rights.
That brings us to a very practical question which I don't think I know
very much about, and I would like, sometime during this symposium, to
have some expression from those who might have had experience, and
that is the relative ease or difficulty of transferring water rights under
the legal system.
We know that under the appropriation system there are difficulties be-
cause the administrators, to some extent, have to approve of changes.
Now, to what extent does that practically throw a monkey wrench into
transferability, to what extent would it necessarily do that? Secondly, we
know, at least, that, when you look at the structure of the eastern law,
there would be difficulty in private transfer...because it looks like, in or-
der to get anything that amounts to anything, you have to buy up the water
rights of an entire stream, and therefore even though theoretically the
rights are transferable in that limited sense, it may mean that the market
is awfully hard to move and awfully cumbersome.
But, nevertheless, we do know that people in the East do buy water
rights and do seem to be satisfied with what they buy, and the lack of the
litigation indicates, unless we say there are no problems in the East, that







SYMPOSIUM DISCUSSION


these purchases and contracts are going on. While theoretically there
may be difficulty, maybe practically there isn't.
Later on sometime I would like some expression on this relative ease
of transferability, which may be one consequence of the adoption of either
system or some alternative.*
MR. FISHER: Just two brief remarks in connection with Mr. Nelson's
point. If water is less a life-and-death matter in the East, perhaps that is
a reason for not recognizing rights in perpetuity for that particular use.
Secondly, I think it is probably only agriculture that has fairly ready al-
ternative supply, rainfall. Industry, perhaps, wouldn't have.
MR. HUFFMAN: I would like to comment on a couple of things here...
The question that has been discussed last centers around, as you sug-
gested, Mr. Chairman, the type of investment, because water development
for agricultural purposes in the West involves a system of structures and
conveyance for water which, if you remove the water, then is totally lost.
It represents the total value of the land. So, if you buy out a water right,
and it can be done, it falls in the same category as buying the land itself
actually for a higher use.
When you have done that, the land may be virtually worthless, as con-
trasted with what I would think the case would be in the East-where the
irrigation system may involve a sprinkler system of some sort, out of
which the farm operator may actually be able to recoup something in
selling it, just the same as a piece of machinery that you no longer use.
And, as you say, he may go on and operate to some extent with natural
rainfall.





DISCUSSION: Possibility of detailed planning.


MR. BEUSCHER: I would like to ask Mr. Haar to elaborate a little bit
on his suggestion that zoning is radically different from water allocation
control.
It strikes me that if you look into the zoning district, as such, and not
at the entire zoned community, you see within the district pretty rigorous
allocation. Zoning control may say you must have a lot of a certain size,
that you can only build single-family residences, and only residences that
meet the standards that are approved by an architectural control board.
Isn't it conceivable that you could do something of the same sort of
thing in the field of water control, that you would look upon your whole

See pp. 542-545, 557-558.







LAW OF WATER ALLOCATION


state as the community that you are going to zone, and then set up dis-
tricts within the state, and perhaps in one district say, "The water here
shall be used primarily for agriculture, in the following way," but in
another district say, "Here, relatively free use; let the market play in
this area; there seems to be enough water",j and to be relatively free in
the use of it? I would like more comment on this distinction.
MR. HAAR: ... [What] I had in mind was where, instead of allocating
in the community, as the Euclid case did, it would be equivalent to the
court getting into the question of saying, "We want cows here," and we
want something else there...with great specificity. [In land use regula-
tion], we haven't gotten to the point where the court can look at two land-
owners and say, "It would be more efficient if you had six inches more
on this boundary"--something very hard for the court to come into. It
seemed to me, as I was thinking about it, that [in connection with the pro-
posals for water allocation] you are asking the court or the administra-
tive agency to do that sort of thing with respect to water, that kind of
detailed pinpointing. That is what I had in mind primarily, to contrast
the general regulation to-let's put it in those terms-the contrast in the
general regulation, and the licensing system, and that the water was much
more the licensing system, and when you get down to that kind of detailed
control, you really have to know what you are doing or the consequences
will be enormous. That is what I meant by contrast between the two. I
think it breaks down in points, and I think there are many similarities.





DISCUSSION: Background of appropriation legislation in Mississippi
in 1956.


MR. NELSON: A number of papers have mentioned the fact that the
State of Mississippi was the first of the states in the East to adopt a stat-
ute which incorporated the provisions of appropriation. I would like to
briefly elaborate on that a little bit, and to assure you that the folks in
Mississippi did not take a quick look at the muddy river and then jump in,
that the things leading up to the adoption of the statute have been of rath-
er long standing.
You might go back, for instance, to a basic fact that, first of all, the
State of Mississippi, before the war, and that is of course the War between
the states, was the wealthiest state in the nation. A number of develop-
ments occurred along the Mississippi River that are not commonly known,
and among those was the beginning of a system of handling flood waters
through levee districts or levee groups, and also the drainage of land. So







SYMPOSIUM DISCUSSION


that folks in Mississippi are accustomed to dealing with water from the
standpoint of a group action now for over a hundred years. We have quite
a body of law that has derived from all that type of action.
Another thing about Mississippi is that we probably have more water
than any other state in the Union. We have between fifty and sixty
inches of annual rainfall. I believe we have the distinction of having had
more fresh water in one location since the time of Noah than any other
state. I refer to the great flood of 1927, in which all through our state,
along the river, you can see these marks as to how high the water got in
the great flood. It is very hard for those of us who didn't live through
that flood to really believe that the water got that high and got so far from
the river.
But this statute in Mississippi arose very largely as, was essentially,
a grass-root formation, in which our Farm Bureau, along with the State
Association of Soil Conservation District Commissioners, first brought
this to the attention of our people. We formed a group committee of all
sorts of people, bankers, industrialists, [and so on]. A great many meet-
ings were held throughout the state, so that even before the proposal was
submitted to the legislature we had quite an informed group throughout
the state.
I think, as Mr. Butler pointed out, that informed people back in the
grass roots are important. In the Mississippi legislature, three-fourths,
I think, of our members are farmers. Even the rest of us who may be in
industry or in a profession are also farmers, because most people in
Mississippi seem to have a tendency to farm, even though they earn their
major, livelihood somewhere else. So we are all very cognizant of the
fact that we are an agricultural state.
We tried to do three things with this statute: First of all, we wanted to
bring the law into line with practice. I believe, as has been brought out
here, people are going to take to water. If you don't make it possible for
them to take it legally, they are going to take it illegally. We have had
since 1950 a 100 percent increase every year in the amount of irrigation.
Our farmers need it. There is no reason why they shouldn't have it. We
thought that, while this was still in its infancy, that the thing to do was to
bring the laws in line with what the actual practice was. We received 100
percent support on that, not only from our agricultural people but from
our bankers' association, industrialists,-every one along the line. We
had absolutely no friction at all between the so-called agricultural people
and the industrial people.
The second thing that we wanted to do was to take care of our munici-
palities, I believe someone said this evening that the municipalities were
a sort of lost cause, that no one was considering them. As was mentioned
earlier, [as to] the case of the City of Conway* over in Arkansas, we

See page 492.







LAW OF WATER ALLOCATION


realized, and our Farm Bureau friends went right along with us, that pro-
vision had to be made legally for the growth of our cities. Our [new
water rights] statute allows us to project ahead 20 years, that is, to take
the normal projections and to block out, you might say, unused areas of
water in which we might allow temporary use but not to tie them up per-
manently. We had almost unanimous consent of every one in the State of
Mississippi that that should be done.
The third thing [had to do with the fact] that the only [opportunity] for
a large-scale additional development of water in the East was the so-
called flood flows. If you refer 'to the hydrograph of the Paw Paw
River-[you have the same pattern of flows in] Mississippi. [See p. 513.]
We have too much water in the spring, not enough water in the summer,
and in the fall we need it. The only way, of course, to stop all that water
from running down to the Gulf of Mexico is to store it one way or another,
which our people are doing.
We had at the last count somewhere between ten and fifteen thousand
reservoirs of all types, ranging from farm ponds of an acre up to storage
of 300 acres or more, all put there not with the idea that they might not
have a permanent right, but that here was the water, and that if theydidn't
put the dam up, they were going to lose it. They went right ahead with
that. There are bulldozers running down there every day building more of
them.
We felt the right to store water should be formalized and put down in
law so we wouldn't run into a lot of litigation on water rights. As you
know, a man puts in a crop and it is only 120 days really from the begin-
ning of his crop to the harvest, in some cases. In some of our counties the
courts only meet twice a year. If a man is beginning a hassle on water
rights, a man's crop is gone, there isn't time to worry about that. That is
the reason that people in Mississippi have said, "We would prefer to settle
this among ourselves within an administrative agency and go on with our
farming and make our adjustments among ourselves." What we have tried
to do is to bring the law up to date to reflect what is actually going on on
the ground.
We have, I think, a rather unique provision in the law, which some of
our political friends put in there in their wisdom. They said on the date
that the law was passed, "You may go ahead and make determinations of
who is using the water and for what cause, but you may wait two more
years until you actually make any allocations." What that does is two-fold:
In the first place, it puts all of the so-called riparians on notice that two
years from now their rights, whatever they are, will be terminated, and
their uses will then become by appropriation. So, it lets all those who
want to start or want to let us know they are going to start, it lets them
have that privilege. It also gives us a nice breathing point of two years to
find out just exactly how to do this, to go back to our legislature in Janu-
ary of 1958 with any kind of changes that we think the statute ought to
have before we begin.







SYMPOSIUM DISCUSSION


We do not have anything that is perfect, but we are going to make a
start on it. We haven't felt, though, in Mississippi, that going to the ap-
propriation system was going to destroy or remove the rights of any one
to water. In fact, until the question was intentionally planted in someone's
ear at each of these meetings that we held around the state, very few
people brought that up, that you might be losing a riparian right. I think
that part of it is not going to give us too much trouble.
We do have all the water that we need. We can cover the State of
Mississippi five feet deep with all the water we get, if we can hold on to
it. Our jump into the appropriation system is not as drastic as I think it
might appear at first glance.
CHAIRMAN BEUSCHER. At the risk of starting the war all over again,
I would like to claim a first for my home state, Wisconsin. I think we
were the first to adopt the "Thomas-Maddock" doctrine of water rights,
which says that so long as there is water, take itl I guess I would have
to qualify that; you do have to get a permit. But take it! I am not so sure
in listening to this Mississippi system but that it is not a modified
Thomas-Maddock system
MR. FISHER: In one or two of the papers it is pointed out that, if
legislation is to be considered in the East that is to incorporate some
form of this Oregon plan of cutting off unused rights, and of limiting use
rights to the amount of use, that one way of dealing with the constitutional
questions that might come up, one way perhaps of easing whatever un-
fairness there may be in this definition of reserved rights would be to
allow a grace period after enactment of the statute for these riparian
owners to initiate or expand their uses. This is a technique that may be
considered for softening the impact of the Oregon approach-by just such
a technique as the allowance of damages to the non-using riparian, as
was done in Nebraska and Kansas.
The only instance we have found of such a grace period used in legis-
lation, is a two-year grace period in the Oklahoma ground water statute,
enacted in, I believe, 1949. Overlying land owners who were not using wa-
ter at the time of enactment of the statute were given two years to start
using water, and they would be considered as having preserved rights to
the amount of use they made within two years.
Reading the Mississippi statute, I had no idea that there was a grace
period in it. I thought the preserved rights were for uses at the ef-
fective date of the statute, and that the effective date of the statute was
the date of enactment. I got the impression from what you said just now,
Mr. Nelson, that perhaps there is a two-year grace period in this
statute.
MR. NELSON: Yes. As usual with most long statutes, the act estab-
lishes a date for the act, and then, buried in small print at the bottom of
the page, it sets the date and says, "After April 1, 1958, no right to ap-
propriate or use water subject to appropriation shall be initiated or ac-
quired, and so forth.







LAW OF WATER ALLOCATION


Our Attorney General has ruled, in working with us, that that provision
means that we may do no allocation until that time, and that that does
constitute a grace period, and that the law authorizes us to make deter-
minations of the existing uses in the two-year interval.
The bill would probably have been much better drafted if that were to
have been put in the preamble-"and to provide a two-year grace period,"
[at the beginning] so that upon a reading of the act it would be clear. It is
kind of buried in there.
MR. FISHER: I have wondered what the position of the fellow is who
wants to start or expand use of water during those two years.
MR. NELSON: We think that, subject, of course, to interpretation by
the courts, a man who wants to start in this two-year period is perfectly
at liberty to do so, that we will have to include him in our determination
of rights.
To go back to this vested right matter, the man does not have to be
using water on the effective date of the act. The act allows him to have
used water at any time three years prior to the enactment of the act.
That is to take care of a specific local Mississippi condition, in that just
like all the rest of the country we have our climatic ups and downs. The
people who use water for irrigation, for instance, have determined that
the most optimum use is to have a half inch of rain a week on our crops,
and that any time that we go for two weeks, for instance, without a half
inch of rain, that you can apply supplemental irrigation for an economic
benefit to increase your crop.
We have gone for periods of four and five years in Mississippi, as we
did in the '40s, when we had more rain in the summer than we knew what
to do with, and any irrigation equipment available was used to pump wa-
ter off the fields and out of the ditches so we could grow a crop. (We look
forward to the time when that will happen again)
We also found out there are some places in which a man [may irrigate
only one time ] in the season. We didn't feel [we should have a require-
ment of actual use] this year or the year previous [as a condition for ob-
taining a right]. We thought we should go back three years to [cover these
natural variations in use]. That is just an expression of local conditions.
It may not necessarily apply to another state or to another section.




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