Title: Hydrology versus Water Allocation in the Eastern United States
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Title: Hydrology versus Water Allocation in the Eastern United States
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Abstract: Richard Hamann's Collection - Hydrology versus Water Allocation in the Eastern United States
General Note: Box 12, Folder 7 ( The Law of Water Allocation In The Eastern United States - 1956 ), Item 8
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LAW OF WATER ALLOCATION


means beneficial to society or beneficial to the individual user. Nor would
we know exactly how much waste will be allowed. We do know that all ap-
propriations of water involve some waste. Certainly, there is a great deal
of waste in the use of earthen reservoirs, earthen canals and earthen
ditches. There is no doubt that the legislature, the courts and the admin-
istrators of water will become more and more strict about the definition
of waste as shortages increase.


HYDROLOGY vs. WATER ALLOCATION
IN THE EASTERN UNITED STATES
by Harold E. Thomas*















The title of this paper was chosen in the hope that it might be at least
slightly provocative. It gives an implication of conflict between hydrology
-the science treating of water-and the systems or methods of allocating
water among users, as developed in statutes, court decisions, compacts,
etc. Such conflicts are possible. Many instances can be cited in which the
basis of water allocation or regulation has not been in accord with sound
scientific principles. Even today the hydrologist and the specialist in wa-
ter law, working separately, may reach divergent conclusions as to the
best methods of regulating and allocating the water resources. It should be
possible to resolve these differences, however, by collaboration of those
who are expert in hydrology and those who are expert in human rights.
With respect to hydrology, I do not qualify as an authority on the eastern
United States. My experience has been entirely in the seventeen western
States, and in the East I am an expert only to the extent that distance lends
an aura of authority. However, many western states have long wrestled with
problems of water allocation, and I may therefore justify this paper on the
basis that the West can serve as a laboratory or pilot study for many of
the problems in water allocation that are now developing in eastern states.
Most of the people who have migrated to the United States in the past
three centuries have come from humid regions, chiefly in Europe. These
people, accustomed in their homelands to an economy based on relative
abundance of water, found the eastern half of the United States to be quite
similar: precipitation during the growing season is ordinarily sufficient
for agriculture, and a network of perennial streams carries surplus water
from the continent to the oceans. However, the western half of the country
was recognized early in the days of settlement as a new and different en-
vironment insofar as water is concerned. By contrast with the East, the
precipitation on the arable lands of the West is generally inadequate for
cultivated crops. Some parts of the seventeen western states receive
enough precipitation for grasses and grains, and these areas have been
adapted to dry farming, especially of wheat. But most of the arable lands
of the West receive entirely too little precipitation for crops, and agri-
culture is successful only if water is available for irrigation.
The East and West have developed two contrasting types of doctrines
concerning water rights. In the East, until recently, there has been little
need for statutes regulating the use of water, and court decisions have es-
tablished the common-law doctrines as pertaining to both surface and

Area Branch Chief, Ground Water, U.S. Geological Survey, Menlo Park, Calif.






LAW OF WATER ALLOCATION


ground water. Under these doctrines the water is appurtenant to the land;
it is therefore privately owned and available for use by the landowner, and
this right is not lost by nonuse. By contrast, many western states have
made a statutory declaration of public ownership of the available water
supplies. Water can be appropriated by individuals for beneficial use, and
the general rule is "first in time is first in right," although some states
modify this by designating preferences as to types of use. Rights are for-
feited after a specified period of nonuse, and they are not dependent upon
landownership.
These contrasting doctrines of water allocation have a sound hydrologic
basis, for they reflect a corresponding contrast in climate. As pointed out
by Thornthwaite 1, if the precipitation is just equal to the potential evapo-
transpiration-the rate at which the sun can pull water to the atmosphere
-the climate is neither moist nor dry. Such are the average conditions
along a line that cuts the country into two approximately equal halves-
extending from the Texas Gulf coast where the average annual precipita-
tion is 35 inches through eastern Kansas with 30 inches, northeastern
Nebraska with 25 inches, and northwestern Minnesota with 20 inches. The
31 states east of this line constitute a humid region where precipitation as
a rule is greater than evapotranspiration, and the surplus is carried to
the ocean in perennial streams. The seventeen western states include the
arid and semiarid regions of the country, where the average precipitation
is less than the potential evapotranspiration, and where there is therefore
a perennial water deficiency. Within these 17 western states, however,
there are small areas of perennial water surplus-chiefly the north Pacific
coast and the high mountain ranges-and these surpluses are of exceeding
importance wherever they can be used to alleviate the water deficiencies
of the arid lowlands.
Throughout the nation there are all gradations in average climatic con-
ditions, from extreme wetness to extreme dryness. And at any locality the
climate will vary seasonally or annually from these conditions as the rate
of precipitation rises above or falls below the average. These climatic
variations are a controlling factor in our water-supply picture, whether
we are considering soil moisture, ground water, or surface water. The
average water supply dependent upon precipitation is believed to remain
practically constant, because in existing records there is no clear evidence
of long-term progressive trends, either upward or downward. However,
our water demand is progressively increasing, because of increasing popu-
lation and increasing requirements per capital. With reference to demand,
therefore, although not in absolute quantity, the nation's water supplies
are diminishing, and this is creating shortages in an increasing number
of areas.

1. Thornthwaite, C. W., A rational approach to classification of climate: Geog.
Rev., v. 38, 1948, p. 55-94.







HYDROLOGY VERSUS ALLOCATION


Obviously any doctrine of allocation developed under conditions of rela-
tive abundance of water needs some modification if it is to be applied to
conditions of restricted supplies. From the concept that a landowner is
entitled to unrestricted use of the water appurtenant to his land there may
be several modifications: that the use must be reasonable, that it must be
beneficial, that it must be correlative with the area of landholdings, that
it must be licensed, or that the right to use water may be lost by prescrip-
tion. And many States in humid regions are studying closely the doctrine
developed under conditions of water deficiency-the appropriation doctrine
-as a possible means of allocating water where the supplies are inade-
quate to meet all demands.


GENERAL OBJECTIVES OF LEGISLATION ON WATER ALLOCATION

A brief resume is sufficient to show us the major problems involved in
getting the maximum benefit from our water resources. First, there are
the arid regions where precipitation is habitually insufficient for cultiva-
ted crops, and where therefore irrigation is essential for agriculture;
such regions are habitable to the extent that surface water and ground
water can supply the needs not only of agriculture but of industry and pub-
lic supply, and these waters characteristically come from some place
other than the place of use, where precipitation is more abundant. Second,
there are the regions where the annual precipitation is ordinarily adequate
for agriculture, but the distribution is such that there are deficiencies in
some seasons; these deficiencies may be overcome by the use of waters
that are in surplus in other seasons. Third, there are regions where pre-
cipitation in a normal year is adequate and well distributed, but in wet
years produces flood surpluses and in drought years is so little that there
are serious water deficiencies; here also there is need to utilize the sur-
pluses of some times to alleviate the deficiencies of other times. Fourth,
there are localities of concentrated water demand, notably by cities and
industries, where water deficiency has been artificially created.
Obviously this variety of problems requires a corresponding variety in
solutions, if maximum beneficial use of water resources is to be attained.
These solutions may involve transportation of water from areas of normal
L surplus to areas of deficiency, artificial increase of storage in soil or
ground-Water reservoirs or surface reservoirs to hold water from times
of surplus for use in times of deficiency, reduction of damage from floods
and droughts, and other steps to overcome the effect of variability in nat-
ural water supply. The solution of many of these problems is accomplished
through legislation which either sets up funds for activities by governmen-
tal agencies, or which enables private citizens or groups to undertake va-
rious activities.
Here we are concerned primarily with legislation tending to regulate






168 LAW OF WATER ALLOCATION

the development and allocate the use of water by individual citizens or
groups, and to provide security for the investments involved in such de-
velopment. As pointed out subsequently, water development and use may
modify the natural circulation of water known as the hydrologic cycle, and
one objective of legislation is to encourage the modifications that will be
most advantageous or least detrimental to society. In general, however,
the major objectives of water-rights legislation are protective. Legisla-
tion should include protection of water rights that have been established,
but it should also protect the opportunity to develop and use water to the
maximum degree that can be sustained. And some legislation may also
be necessary to protect the resource from undue exploitation.


WHAT WATER SHOULD BE SUBJECT TO REGULATION?

A casual observer might well conclude that we as a nation do not favor
regulation and allocation of water until the necessity is clearly established
by evidence that available supplies are insufficient to meet the needs.
Strong arguments have been advanced against proposals for water legisla-
tion in several states on the principle that it would hamper development,
and that since there are still large undeveloped resources of water in
many parts of the country, restrictive legislation would result in economic
loss. Particularly in the eastern states, with their relative abundance of
water and surpluses that flow unused to the sea each year, it appears that
most water shortages could be overcome by holding back some of those
surpluses for use in times and places of need. Thus the solution to the
problem would seem to be to encourage development rather than to re-
strict it, and a logical first question is whether legislation is really nec-
essary.
The common-law doctrines pertaining to water in most of the East ap-
parently grant perpetual security to the landowner because they permit
him to use water from streams, springs, or wells on his land when and if
he wants it. Unfortunately, when water is withdrawn from streams
or wells for use by an individual, it ceases to be available for others who
have the same rights in common. Thus the apparent security of all land-
owners creates insecurity in any investment (whether of public or private
funds) that may be necessary for development and actual use of the water,
because some landowners may decide at any time to exercise their pre-
rogatives, and attempt to develop and use the same water. If a continuing
supply is to be assured to those who have actually used water and become
dependent upon it, we have a problem for legislation, requiring some
limitation on the unexercised rights to the same source of supply. (The
question of the status of these unexercised rights-whether they are vested
property rights, of which a man shall not be deprived without due process
of law-is a legal problem beyond my scope.)







HYDROLOGY VERSUS ALLOCATION


The inadequacy of present doctrines to cope with problems arising
from our increasing demand for water has been noted by several study
groups. As an example, the Water Policy Committee of South Carolina 2
has this to say of the riparian doctrine pertaining to surface water:
It is outmoded in that it recognizes only "domestic uses" of 150 years ago. It
is inequitable both to riparian owners and to the people of South Carolina as a
whole. As each riparian owner who in the past may not have used his water
takes even his small share, he reduces the amount for all riparian owners in
common. Thus, a riparian owner who early has invested in equipment to use
water sees his investment reduced in value as his equipment operates at less
and less of its capacity. As an owner in common he has a valuable right; as an
individual owner he has a right that decreases in value as it is used in common.
The state as a whole also loses. Under present laws there is little that can be
i done to prevent a needless amount of our water wealth flowing unused into the
ocean. Under modern conditions the riparian doctrine imposes a second injus-
tice on the people of South Carolina. Under strict interpretation the riparian
doctrine gives use of water only to those owning land bordering the watercourse.
Others in the state can use the water only by grant of the riparian owner, by
legislative grant or by prescription-adverse use for the time required by law
to convert the use into a right. The people of South Carolina as a whole are re-
stricted in their enjoyment of an important resource even though the state holds
final title to it.

If it is granted that some legislation is essential, to provide an environ-
ment favorable for effective utilization of the water resources, the next
question arises as to what water should be subject to allocation. Usually
this question is answered by pointing to the water that is or has been in
S short supply, and therefore causes difficulties. And usually there is a ten-
dency to legislate on the basis of a traditional legal classification that is
scientifically unsound. This classification commonly includes the follow-
S ing "classes" of water: 1) surface water in watercourses (rivers, creeks,
natural streams in general); 2) ground water in "defined underground
streams" (ordinarily limited to the most obvious conditions because the
S burden of proof is usually placed on the person that claims the existence
S of this class of water-for example, the water in caverns or in gravels
and sands underlying stream channels); 3) "percolating" water (ground
S water that has not been studied by hydrologists, so that its quantity, and
rate and direction of movement, are unknown; even after this ignorance is
superseded by understanding, the class title may be retained because of
S legal precedent); 4) "diffused surface waters' (water on the land surface
but not in watercourses or lakes); sometimes also 5) springs (natural dis-
charge points for ground water, and therefore derived from class 2 or
class 3).
2. South Carolina Water Policy Committee, A new water policy for South Caro-
lina: Report to General Assembly, 1954, p. 30.


i







170 LAW OF WATER ALLOCATION

In defense of this legal system of classification, inherited by us from
past generations, it may be argued that water, by whatever name it is
called, will still have the same quality and usefulness; also, that the legal
classes summarized above are not much more artificial than the hydrolo-
gist's distinction between surface water and ground water, which is a now-
you-see-it now-you-don't distinction that can refer to the same water
molecule at different times. A classification can be made to suit man's
convenience. He is likely to become confounded, however, if he assumes
a separation that does not exist in nature, and legislates on the basis of
that false assumption.
The legal classes of water, as listed above, are now known not to be
separate and distinct, but to be interrelated and interdependent.f e mini-
mum flow of water in watercourses comes chiefly from ground water,
whether from "defined underground streams" or "percolating" water. The
maximum flow of water in watercourses also comes in part from ground
water, but is likely to include a large proportion of water that was tempo-
rarily "diffused surface water." "Diffused surface waters" may include
water from precipitation which has not completed the process of infiltra-
ting into the ground or which cannot enter the ground because of imper-
meability of the surface layer, or because the ground is temporarily full;
overland flows which may either seep into the ground elsewhere or enter
a watercourse or lake or pond; the discharge from ground-water reser-
voirs at springs or seeps; water in sloughs or escaped floodwaters in
"watercourses" that have been too narrowly limited in their definition;
and marshes and bogs formed by ground water where the water table rises
to the surface. A Westerner who was obliged to use the term could apply
it also to the water in the playas of closed basins, whether in wet playas
which are discharging ground water, or in dry playas that receive runoff
from occasional intense storms. Even the snow that accumulates in the
mountains each winter might be designated "diffused surface water," for
it is not in watercourses, nor is it soil moisture or "percolating" water
or water in a "defined underground stream," and it is water on the surface.
The hydrologist also classifies water for his convenience-for instance,
as atmospheric vapor, soil moisture, ground water, and surface water--
but he recognizes these as merely phase inthe continuing circulation of
water that he calls the hydrologic cycle. ThSeinterrelation and interde-
pendence of the several phases of the hydrologic cycle are demonstrated
in studies of the processes of precipitation, infiltration, deep percolation,
seepage, and evapotranspiration, by which water moves from one phase
to another The principle of the hydrologic cycle, involving renewability
of the fres-water supplies of the continent, is fundamental to any right
to sustained or perennial use of water.
At present it is beyond the province of legislatures, and beyond the
powers of mankind, to regulate all the water of the hydrologic cycle, which
includes all rainfall and soil moisture as well as ground water and sur-







HYDROLOGY VERSUS ALLOCATION 171

face water. It is more logical, when there is agitation for allocation of
water from sources that are in short supply, to consider legislation that
will solve the immediate problem. Such bows to expediency have been
numerous in the history of water legislation in the West.
Rather generally throughout the western states the waters first used
were from streams, and disputes over surface water were already raging
when ground-water development was practically nonexistent. Statutory
regulation and allocation of surface water thus preceded by many years
any statutes pertaining to ground water, and; these two "classes" of water
are still administered and allocated separately in many states. This has
already caused difficulties, because the oldest rights are generally in the
base flow of streams-the flow is sustained largely by ground water-and
failure to recognize this interrelation has created problems in water
rights. Correlation of water rights in such situations is not too difficult
if the philosophy of rights is the same for surface water and ground water,
as for example in Nevada and Utah where "all" waters have been declared
to belong to the public, but the correlation of rights may defy solution if
the basic philosophies pertaining to the two 'classes" of water are dif-
ferent, as pointed out by Hutchins:3
Correlation of rights is not feasible in a State which, for example, recognizes
exclusive appropriation rights in surface streams, and rights of absolute owner-
ship of percolating waters. Even if such percolating waters are conclusively
proved to be physically tributary to a surface stream, the stream appropriator
obviously can have no legal claim on them if they are held to be the absolute
property of the overlying owner.

S It may be concluded that, even with piecemeal legislation that regulates
and allocates separately the surface water, 'or ground water, or some other
named "class" of water, it is possible at some later date to integrate and
Correlate water rights, provided the state has been consistent in its philos-
ophy concerning the waters. Such consistency is possible in states that de-
clare all water to belong to the public, or, at the opposite extreme, in
states that consider all water to be appurtenant to the land and therefore
subject to private ownership. The hydrologic cycle provides another pos-
sible breakpoint between private and public ownership: Movement of water
as precipitation and as soil moisture is chiefly in a vertical plane, so that
the landowner might be granted ownership of all the water that falls on his
land and is retained in his soil by natural or artificial means; on the other
hand, the principal movement of ground water and surface water is lateral
and therefore across property lines, so that a declaration by the state of
public ownership would have support in hydrology.
As an alternative, legislation might be framed to provide for regulation

3. Hutchins, W. A., Legal aspects of ground water problems: Pacific Southwest
Inter-Agency Committee, minutes of 56-1 meeting, attachment B, 1956, 9 p.







LAW OF WATER ALLOCATION


and allocation of all water within an integrated hydrologic unit. Such legis-
lation would be of the enabling type, to permit organization of all the wa-
ter users (including potential water users) within the area encompassed
by the unit, and would need to establish the guiding principles and delegate
the authority and responsibility for operation of that organization. Ade-
quate hydrologic information would be required for the establishment of
the boundaries of such hydrologic units, because ground-water boundaries
do not necessarily coincide with drainage-basin boundaries. Texas recog-
nizes this principle to some extent in its statutes concerning underground
water conservation districts, which must include an area "coterminous
with an underground water reservoir or subdivision thereof."


LEGISLATION PROPOSED IN SOME EASTERN STATES

Because of rapidly increasing water use in recent years, particularly
for "supplemental" irrigation, several eastern states are faced with the
need for some system of water allocation, and legislation has been pro-
posed in some states.* For example, in Mississippi and South Carolina it
is proposed to dedicate the water in watercourses, lakes, and other natural
bodies to public use, and to make available for appropriation the water
above the "average minimum flow" of streams. In Michigan and Arkansas
it is proposed that surface water be made available for use by licenses
issued on the basis of the state's police power. Generally the proposed
regulatory measures apply only to water in streams and lakes, and exempt
other "classes" of water; they give some recognition to existing rights
that are being used or will be used in a short time, provide for the record-
ing of rights, and put the burden of enforcing the law in the hands of an ad-
ministrator or board.
The necessity for allocation of surface water has been indicated by
shortages in recent years, particularly in the streamflow during extended
rainless periods when supplemental irrigation is desirable. All four States
mentioned above have accepted in the past, or at least have not repudiated,
the common-law doctrines which grant to each landowner the right to use
water appurtenant to his land when and if he chooses. Any system of allo-
cation based on use of water must take away the landowner's right to use
water whenever he chooses. Because of this restriction of rights that had
been assumed in landownership, any attempt to regulate water supplies is
likely to encounter resistance. Legislation for allocation only of surface
water may therefore be a necessary bow to expediency, because the alter-
native might be no control of any water supply.
However, legislation that regulates only surface water can create prob-
lems for the future. Consider that the urgency behind the proposed

See pp.88-94.






HYDROLOGY VERSUS ALLOCATION


S legislation in several eastern states has been the deficiencies of stream-
flow during rainless periods in recent years. The streamflow in such
periods is derived chiefly from ground water, and the state cannot there-
fore guarantee water to surface-water appropriators unless it has the
power to control the development and use of water from the contributing
ground-water reservoirs. If the ground water is considered to be appur-
tenant to the land and therefore privately owned, the surface-water ap-
propriators will have no recourse if ground-water development depletes
the flow of the stream.
The proposed legislation for Arkansas, Michigan,* and South Carolina
Should grant to the landowner absolute ownership of "diffused surface wa-
ters" on his property. Of all the various 'diffused surface waters," those
That would be most likely to affect streamflow are the waters gathered on
or flowing over the surface after precipitation. Such waters contribute
materially to storm runoff, and especially to floods. Landowners within
any drainage basin, therefore, by holding these "diffused" waters on their
land could reduce the streamflow materially; and if all overland flow could
Sbe prevented, the water in watercourses would consist largely of the dis-
charge from ground-water reservoirs. Thus if the landowners have absolute
ownership of both the ground water and diffused surface water on their
lands, a surface-water appropriator cannot be assured of a secure water
right. Texas may be cited as a case in point, for the water in streams is
subject to appropriation, whereas ground water is appurtenant to the land
and therefore subject to private ownership. Because of increasing pump-
ing from wells, the discharge of many large springs in the San Antonio
region has been reduced materially, 4 with consequent reduction of flow
in streams fed by those springs. Also it is reported 5 that soil-conserva-
tion practices have reduced the flow of many streams in west Texas. At
a water conference last September at Texas A & M College it was con-
ceded that, with continuing reduction of base flow and reduction of storm
runoff from minor storms, some surface-water appropriators would
Eventually have rights to nothing but the runoff during major floods. Large
reservoirs would be needed to store this flood runoff, and they would be
used only infrequently.
A major criticism of the proposed legislation in Arkansas, Michigan,
Mississippi, and South Carolina, is that it attempts to set up not only a
separate system of allocation for surface water, but also a separate

*See p. 1, note 2.
4. Petitt, B. M., Water resources of the San Antonio region, Texas: U.S. Geol.
Survey open-file report, 1956; to be published by Texas Board of Water
Engineers.
5. Freese, S. W., General effect of soil conservation work on streamflow in
West Texas: Am. Soc. Civil Engineers, Texas Section, fall meeting, Houston,
mimeo. rept., 1954, 30 p.







174 LAW OF WATER ALLOCATION

philosophy of water rights which is incongruous because of the interrela-
tion of the surface water with water in other phases of the hydrologic
cycle. But even without this inconsistency in philosophy, the states are
likely to find an increasing number of conflicts among water users that
cannot be resolved by the proposed laws. Among the bases for conflict
might be mentioned the effects of pumping from wells upon other wells
and upon springs, as well as upon streams, lakes, and some bodies of
"diffused surface water;" the effects of stream diversions upon supplies
from wells and springs; and the effects of using "diffused surface water"
upon users of water from streams, lakes, wells, and other users of "dif-
fused surface water."
There is a possibility that the courts in some states might, in view of
the common law, hold that some ground waters would be subject to regula-
tion under the proposed statutes. Thus ground water in "defined under-
ground streams" is generally considered a part of the water in water-
courses, and in some states springs tributary to a watercourse have been
declared to be a part of the watercourse. Thus the common law recog-
nizes the interrelations of the hydrologic cycle to some extent-an extent
that varies from state to state.


PROBLEMS FOR LEGISLATION

In drafting legislation concerning water rights, the states have many
problems in common because of the similarity of objectives in the legis-
lation. But any given problem may have several solutions, and the water
legislation accordingly may vary from state to state. The doctrine of ap-
propriation has been developed chiefly in the arid western states; since
there is not enough water for all, the available supplies are held in com-
mon, and this has been accomplished in most western states by a consti-
tutional or statutory declaration of public ownership. The laws proposed
for South Carolina and Mississippi similarly declare the public owner-
ship of water occurring in "any watercourse, lake or other natural water
body." In Michigan it is proposed that the State, on the basis of its police
power, control the use of surface water by issuing licenses for water use
on a basis similar to the appropriation system in the western states. In
Arkansas also it is proposed that the State control the development and
use of surface water on the basis of appropriation, subject to the rights
of riparian owners to water for domestic use.

Protection of Developed Rights

In the legislation proposed for South Carolina and Mississippi, a vested
right is defined as "the right to continue the use of water having been
actually applied to beneficial use...", and nothing in the proposed law is to







HYDROLOGY VERSUS ALLOCATION 175

"deprive any person of any vested right in the use of water." The Michigan
proposal also would preserve "vested rights" which are stated to include
(class A) riparian rights to reasonable use of water for domestic, power,
recreation, and fishing needs in connection with the riparian land, and
(class B) rights to water actually put to beneficial use, with priority dating
from the time of first use. Although the legislation proposed in Arkansas
makes several references to rights vested before the effective date of the
law, and to claimants of such rights, I could find no specific statement as
to the protection of these rights, except in the event of a general determi-
nation of the "relative rights of all claimants" to use of water from a
source of supply, which may be undertaken upon the petition of one or more
users from that source.

Record of Rights

For effective regulation of water use on the basis of appropriation, the
State administrator requires a record of all water rights, including es-
pecially the quantity of water used beneficially, the date of first use, and
the date of cessation of use. To meet this need, insofar as water develop-
ments subsequent to passage of the legislation are concerned, the legisla-
tive proposals in all four States include details of the procedures to be
followed in establishment of water rights.
Michigan proposes also that administrative areas be established, within
which statements of "claims of rights to the use of water vested upon the
effective date of this Act" shall be filed with the Water Resources Com-
mission within a stated period. Unless shown to be fraudulent, these claims
would constitute prima facie evidence of the development and beneficial
use of water prior to enactment of the law. In both Mississippi and South
Carolina it is proposed that the administrative board make such observa-
S tions and measurements as will enable it to determine and establish the
rights of all water users who are making beneficial use of water on the
effective date of the Act, but the water users are not expected to state
their claim as to rights.
Utah, when it passed its ground-water law in 1935, placed the prime
responsibility for preparing the record of water use prior to that year
upon the water user, rather than upon the State administrator. The water
user was required to submit an affidavit (or claim) upon a form prepared
by the State Engineer to include all data essential to the determination of
the right. These claims were checked by the State Engineer against other
data he had obtained, and significant discrepancies were brought to the
attention of the claimant. The claims were then filed as the official record
of the right, together with supporting or modifying data obtained by the
State Engineer.
The value to any state of a file of sworn statements by all claimants of
vested rights will increase as time goes on, and as properties change title.






176 LAW OF WATER ALLOCATION

Property owners are less likely to contest claims made by former owners
of their property than to contest determinations made by the state. If
claims are protested by holders of other rights, the dispute is solely be-
tween water users, and the state administrator may serve in the role of
arbitrator rather than as a defendant. In Utah there have been 'very few
challenges of the data recorded on claims to water rights, especially in
comparison with the total number of records of wells, springs, and stream
diversions.

Administrator's Authority and Responsibility

The "Boards of Water Commissioners" proposed for the States of
Mississippi and South Carolina "have authority to permit the appropriation
of water of any stream only in excess of the established average minimum
flow," with allowable exceptions for domestic and municipal users, and for
non-consumptive water users. The Michigan Water Resources Commis-
sion would be given the authority and charged with the responsibility of en-
forcing the specific provisions of Michigan's proposed law; and the pro-
posed law for Arkansas confers similar powers upon the Arkansas Water
Control Commission. Mississippi and South Carolina contemplate that
administrative orders or decisions may be appealed to the courts, and
Arkansas would depend upon the courts for adjudication of water rights.
These powers are similar to those conferred by western states upon
the state official responsible for regulation of water resources, although
they are not so broad as those in some states. For example, Kansas
authorizes its Chief Engineer to "control, conserve, regulate and allot the
water resources of the State for the benefit and beneficial uses of all its
inhabitants in accordance with the rights of priority of application."

Policy Guides

Regardless of the extent of the authority conferred upon the State ad-
ministrator, his job will be more clearly defined, and his orders and de-
cisions more soundly based, if there is a statutory declaration of general
policies as to water rights and regulation of development.
Many States have statutes which enunciate certain policies with respect
to water rights, and the courts also have considered many problems, for
which their decisions may serve, especially within the area of jurisdiction
of the court, as guides to policy in the future. But many problems have de-
veloped rather suddenly with the recent rapid increase in use of water,
and existing laws provide no guidance, except perhaps by rather tenuous
interpretation. The following discussion is limited to two problems that
have arisen in several places: the question of preferential rights in cer-
tain types of use, and rights in water that has been used nonconsumptively.






HYDROLOGY VERSUS ALLOCATION


Preferential Use vs. Priority of Use
The doctrine of appropriation ("first in time is first in right") does not
discriminate among types of use, except for the proviso that the use must
be for some beneficial purpose. The proposed legislation in Michigan,
Arkansas, Mississippi, and South Carolina declares priority of beneficial
use to be the determining factor in water rights, and thus conforms to the
appropriation system. Generally, however, people regard some uses of
water as more beneficial to society than others, and many states have
listed the types of beneficial use in order of preference. Such preferences
are suggested in Arkansas' proposal to exempt domestic users from the
Provisions of the water-regulation act, and the priviso that fish and wild-
life values are to be considered in determining the best public interest in
applications to appropriate water. In the other States the water boards or
commissions would be empowered to approve applications for uses which
best serve the public interest or general welfare.
Both preferential use and priority of use can be determining factors in
rights, but to avoid confusion the law should state the conditions under
which each is the controlling factor. A combination of the two factors has
been worked out in some western states: established appropriative rights
are on the basis of priority regardless of ihe type of use; but the state ad-
ministrator may choose between competing applications for new develop-
ment on the basis of preferred use; or, as full development of a region is
approached, he may accept additional applications for preferred uses, but
reject applications for uses of low order.

"Used" Water
Water used nonconsumptively includes the return flow or seepage from
irrigation, the sewage from homes and cities, the cooling or process water
L from industry, and the waste water from various uses. In the most com-
mon uses of water more than half may be unconsumed and is available for
reuse, although the quality is generally poorer because of the first use.
S After these unconsumed waters leave the property of the first user,
particularly if they are discharged into streams or underground, they
again become available for use by others. Or perhaps the waters dis-
charged are unsuitable for use because of dissolved chemicals or sedi-
ment or organic material. Questions are likely to arise as to the privileges
as well as the responsibilities of the first user with respect to this uncon-
sumed water. When may he contract directly for its delivery to other
users, and when does it become public water available for appropriation
through established state procedures? After the used water is appropri-
ated, what are the obligations of the prior user to continue the noncon-
sumptive use and to discharge it where it is accessible to the subsequent
user? What are his obligations as to purification or treatment?


1__1 _






178 LAW OF WATER ALLOCATION

Many states have laws concerning pollution that apply to waters non-
consumptively used, but, since the prime concern is protection of public
or common supplies, the statutes may not answer all the questions of one
who has used water to dispose of. As reuse of water increases, it is in-
evitable that questions will be raised as to rights. An industry, for in-
stance, having a right to constant intake of which it discharges 90 percent
that has long been available for other users, by recycling perhaps could
quadruple its plant operations with no increase in intake-but the quantity
of "used" water available for others would be reduced appreciably. A
city may have the alternatives of discharging treated sewage effluent of
acceptable quality into public waters, or of contracting to deliver that
water to a specific user for industrial or agricultural purposes. In the
legislation proposed in South Carolina and Mississippi, water that has
been appropriated and used nonconsumptively is recognized as being
available for appropriation again after it returns to a stream or other sur-
face body of water, but the obligations of the first appropriator to the
second appropriator are not stated. The question has been considered in
a very recent case in Utah. The decision in that case* was that upstream
irrigators were obligated to continue to provide the return flow from irri-
gation in quantities equivalent to those to which rights had been developed
by downstream appropriators.

Essential Hydrologic Data

For effective regulation and control of the water resources a state ad-
ministrator requires a knowledge of the natural circulation of water and
quantities involved, and of the modifications that result from man's de-
velopment and use of water-in other words, a continuing inventory of the
quantities and qualities of water moving through the several phases of the
hydrologic cycle. The legislation proposed in the four States mentioned
above provides for gathering such data as may be helpful in water admin-
istration, by the State administrator and cooperating Federal agencies.
The essential hydrologic data for effective regulation of water develop-
ment and use can be summarized very briefly: quantitative data as to the
natural storage and movement of water over a long enough period to show
the extremes and the long-term mean; also, data as to the uses of water
and the effects of those uses. These requirements can add up to an im-
mense amount of basic data and study, as indicated by considering the
data that are needed merely for regulation of a reservoir.
It is fundamental in reservoir operation for beneficial use of water
that the reservoir be filled in times of surplus, and drawn down to meet
the needs for beneficial use during periods of low inflow. Under these con-
ditions, it may be possible to provide a firm supply of water perennially

East Bench Irrigation Co. v. State (Deseret Irrigation Co.,), 5 Utah 2d 235,
300 Pacific (P.)2d 603.







HYDROLOGY VERSUS ALLOCATION 179

to many water users. Considerable hydrologic data are prerequisite to
the effective operation of a reservoir, surface or underground, for maxi-
mum benefit to the public. As an example, for Lake Mead on the Colorado
River, there has been an accurate survey of the reservoir to show the
capacity, both as to usable storage (which can be discharged at Hoover
SDam) and dead storage (which cannot be economically drawn out of the
reservoir); lake levels are recorded continuously, and capacity tables
have been computed to show the quantity of water in storage at any lake
level; there are also continuing measurements of inflow, including the
Colorado River, Virgin River, and precipitation; and measurements of out-
Sflow, including evaporation from the lake surface and discharge at Hoover
Dam. With many years of record on all these items, it is possible to fore-
cast supplies and program future operations with reasonable accuracy.
For determining how much water can be perennially yielded by a ground-
water reservoir, whether to streams, springs, or wells, an administrator
would need similar information: capacity of the reservoir, which might in-
clude "dead storage" below the practical pumping lift-a quantity that might
change as the practical pumping lift changes with economic conditions; sea-
sonal changes in storage, as shown by water levels in index wells; long-
term average recharge to the reservoir, and cyclic deviations from that
average; and the discharge from that reservoir by wells, evapotranspira-
tion, and effluent seepage to streams. The administration of water rights
under any system of allocation on the basis of use is expensive, because
it requires the collection of a large volume of basic data, and analysis
and interpretation by expert hydrologists.


SUMMARY

L To sum up, the 31 eastern states form an area in which, as a rule,
Precipitation exceeds the return of water to the atmosphere, and the sur-
plus runs off in streams to the borders of the continent. These states in
the past have generally accepted the common-law doctrine that water is
appurtenant to the land and therefore privately owned and subject to use
by the landowner whenever he chooses. Although relative abundance of
water has been characteristic of the region in the past, the increasing
use in recent years has created shortages of water at some places and at
some times. Because of the overall water surplus of the region it would
appear that the remedy for local deficiencies would be to utilize the sur-
i, pluses from some other place, and the remedy for temporary or seasonal
deficiencies would be to utilize the surpluses from some other time. Such
remedies require storage facilities, and the money with which to build
them.
Although the common-law doctrines appear to grant perpetual security
Sin water rights to each landowner, whether he uses the water or not, there







180 LAW OF WATER ALLOCATION

is insecurity in any investment for developing, storing, or using water,
because there is no assurance that other landowners will not some day
undertake to develop and use the same water. Protection of rights in wa-
ter actually being used requires some limitation on the unexercised rights
to water from the same source of supply. Several States are now endeav-
oring to set up systems of water rights and allocations based upon priority
of beneficial use of water, some by declaring the water to be public prop-
erty, others on the basis of police power over the State's resources.
Arkansas, Michigan, Mississippi, and South Carolina may be cited as ex-
amples of States that currently are preparing to regulate and allocate their
surface waters. This appears to be a logical step, because practically all
the water surpluses in each State are carried off in its rivers, and because
the streams have been depleted by increasing diversions in recent years;
however, it is only a first step in water regulation, because of the inter-
relations of the hydrologic cycle. Surface water cannot be regulated ef-
fectively if there is no control over large-scale ground-water development,
particularly if water users, finding surface water supplies unavailable to
them, turn to wells for their supplies.
For effective regulation and allocation, the legislation should provide
a clear definition of water rights; broad authority and responsibility for
the state administrator, so that he can render decisions in the great va-
riety of hydrologic conditions that are to be found in every state; and a
statement of broad policies in accordance with which he shall exercise
his powers. Also essential is an adequate program of collection of basic
data and hydrologic analysis as a basis for regulation of water use. Even
though the control as now proposed in several states applies only to sur-
face water, the basic hydrologic data should encompass water in all phases
of the hydrologic cycle, so that the effects of all natural and developmental
factors can be ascertained.
The allocation of surface water on the basis of beneficial use may give
sufficient assurance in water rights to encourage investments in develop-
ment of facilities for the storage that is sorely needed to eliminate tem-
porary water deficiencies such as have occurred in recent years. If not,
additional legislation may be desirable to enable and encourage organiza-
tion of water-service corporations or districts to serve all the water
needs within a designated hydrologic region, comparable to the service
provided by other utilities.




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