DISCUSSION: Beginnings of western water law.
Definition of waste; beneficial use.
CHAIRMAN TRELEASE: Since the discussion today is largely centered
about western water law and its applicability to the eastern states, I think
it is appropriate for me to embroider upon a remark made last night by
our host, Mr. Fairfield Osborn, in remarking of the appropriateness of
holding this symposium in the Cosmos Club. I noticed the panel of por-
traits of Past Presidents, and that the first President of this Club was
John Wesley Powell. Many of you may not know that Major Powell not only
explored the West but came back to Congress with a recommendation for
a system of water law, which, however, was never adopted. Western water
law had no such group as this at its inception. Western water law "hap-
pened" more than anything else, I believe. For a pioneer economy, I think
it did a very good job.
It did not spring from mill acts. I don't think the miners of California
were versed in those byways of legal learning, nor were the farmers who
followed them to the West in search of homes.
The other phase of western water law which has already been talked of
a good deal, the administration of it, actually came from an engineer, Mr.
Elwood Mead, later Commissioner of Reclamation. He was the first terri-
torial engineer in Wyoming, and he evolved the system of administration
of water that today is typical in the West.
Mr. Fisher's paper gives us, I think, a warning, a warning to us west-
erners not to be carpetbaggers, to come here and tell you how to run your
Business, to adopt our perfect system for your own. He pokes some very
probing fingers into soft spots in that system, and... [suggests] that prior
appropriation itself could be straightened out a little bit before it becomes
a perfect system anywhere...
MR. TIMMONS: I have a question... I think the idea of waste which you
Shave spotlighted as being pretty important-in fact, much of your paper
turns on the concept of waste and remedies for it-I think waste means
something different to the lawyer than it does to the economist. I am not
so much concerned about the semantics of words as I am concerned about
the basic concept, because I think this is an excellent example of where a
seminar, a symposium such as this, can begin to get disciplinarians to-
gether in some kind of meaningful work.
I would like to know what you mean by "waste ?"... If [some water] runs
Sdown... [a river] and into the sea, is that water wasted ?
MR. FISHER: If it is put to no use at all, I would call that absolute
waste. If it is put to lesser uses downstream than people upstream would
like to put it to, then I would call that relative waste.
MR. TIMMONS: Your absolute waste then is the concept of nonuse?
MR. FISHER: Yes.
MR. NELSON: I don't think that... in Mississippi we would have the
thought that because all of the water had not been removed from the stream
channel that we were thereby having a waste. We consider it necessary for
182 LAW OF WATER ALLOCATION
some water to stay in the stream all the way down to the Gulf of Mexico.
We have fisheries... shrimp and oyster beds, which require a certain
amount of our water margin...
MR. FISHER: In some of the western flood-irrigation cases, in those
there was no use downstream and the riparian right was protected. There
was no shellfish industry; no navigation channel maintenance; no pollution
dilution-things like that. Fish life in the river I regard as a use.
MR. THOMAS: In California there has been an evolution on that. What
had been considered losses now is considered very important. They have
ground water reservoirs of large storage capacity... They are trying to
irrigate excessively to see if some of the excess will go down in order to
store this water which can be taken from wells later. So, with the gradual
increase in knowledge they are able to take care of what was once waste,
and finding they are making more use of it. Practically all non-consump-
tive uses could be waste, but on the other hand, they may be salvaged...
MR. HUFFMAN: I read Mr. Fisher's paper and the sections on waste
and weighed that against what I know about the experience in the West,
and I thought he had done an excellent job of setting forth the problems
on waste in the use of water after it has been diverted from the stream.
I assumed automatically, I guess, that he was still allowing for other uses
in the stream flow for other purposes, including fish and wildlife, and so
on. The only one that I thought was not of particular importance, and you
question that yourself, was the one on diversion. To my knowledge, the
last water wheel in Montana went out three years ago. Most of it is
pumped by diesel engine. I would like to say a couple of things which are
concerned not particularly with the-defense of the shortcomings of the ap-
propriation system, which you set forth in excellent fashion, but rather to
indicate why they probably haven't been taken care of in the West, which
may give you some clue as to what you face in the East.
For one thing, in my experience with western law, I seldom hear the
question of beneficial use raised. All the discussions are in terms of pri-
ority. When you get a bunch of water users together, that is about all they
are concerned with, priority. I have been trying to do a little bit of mis-
sionary work in the last few years, that, with other uses, they have to rec-
ognize that the beneficial use is becoming more important, and they will
have to defend their use from the standpoint of beneficial use. I find that
since what you are saying is that they are going to have to be able to live
with the law as it exists, you can talk to them. I talked with the Reclama-
tion people last year, and you can talk to them on that basis. But you can't
do much yet as to [things that involve] a change in the existing law. You
get back to the fact that the water is really the valuable thing that shows
up in the value of investments and the values of land, and so you come
back to the point that there has to be probably again a payment for the
investment before you can take the water and use it for something else.
DISCUSSION: Allocation to groups of users, and rotation of use.
MR. HUFFMAN: There is one other thing that I would like to point out,
too, in the West, and I think this may Affect the East: If you are thinking
in terms of developing water resources on a storage basis where you have
what we have in the West, a group dependency on the source of water, you
have a slightly different problem than you have in talking about legislation
and law which will affect users individually, because there you have a
group dependency on law, on the conveyance system, the whole administra-
tive arrangement, and when you start changing the use you are concerned
with a whole group of users and not one.
MR. MALONEY: I am wondering about another possible remedy... I
spent some time in Idaho this summer, and in talking to a friend of mine
who was dependent on water, I got wondering about revolving use as a pos-
sibility for extending the number of junior appropriators and whether or
not that is administratively feasible. In this particular case, this user
wanted to use water for pasture and could use it at a different time from
the other users. He got permission at least from some of them to use some
of that water at that time, but he couldn't make the administrative arrange-
ment with the ditch riders, and what-not, to get that water, although it was
going to waste and being returned to the Snake River. The maximum use of
water can be increased in that way. Perhaps it is being done, I don't know.
MR. HARRIS: In many places in the West, there is rotation of water.
CHAIRMAN TRELEASp: An appropriator may appropriate water dur-
ing the normal growing season, and the water might be used for other pur-
poses in harvest season... There is rotation by voluntary agreement
among water users, and a few instances of rotation by court order, illus-
trating Mr. Haar's doctrine of flexibility of court administration.
DISCUSSION: Water quality.
MR. STEIN: I would like to make a comment and then ask a question
... I find perhaps [a factor] lacking here in the western system is the
question of water quality. Particularly in the East it seems our problem
has been as much the quality of water as the quantity of water... If a
system of water law is to be considered in the East, and that system is
largely geared to a quantitative allocation, does this mean a basic prob-
lem in the East of preservation of water quality?
What is the effect, what responsibility does a man have, who has water
under the appropriation doctrine, to preserve the water quality of the
184 LAW OF WATER ALLOCATION
stream? Presumably he doesn't have to return any water to the stream.
Does that give him the right to make a beneficial use of the water and re-
turn the water to the stream so degraded in quality or containing a sub-
stance which might not go qualitatively with the use downstream? The
very diminution of water in the stream affects the quality of that water
downstream, because where there are large flows downstream, for ex-
ample, a municipality may be able to get by with, say, primary treatment.
If enough water is taken out, you have to go further. Those are the ques-
tions I really don't have the answer to.
MR. FISHER: I would like to point out, first, that the South Carolina
proposal and the Mississippi statute make some very definite provision
along this line.* First, in defining existing rights that are preserved on
the basis of existing use, they make it clear that... no existing use for
pollution shall be deemed to give a preserved right. Also, as Mr. Nelson
has pointed out,... [they] prohibit appropriation of water below a certain
average minimum flow level. They also prohibit appropriations that
would impair the state pollution control authority's stream standards.
What the story is meant to be under the other eastern proposals, we do
In the West... we aren't too clear as to the status of pollution resulting
from uses under appropriative rights for other purposes than just dumping
municipal sewage. Let's say industrial use or agricultural use pollutes
water. I feel quite sure on the basis of the text material and cases I read
that an appropriator does not have an unlimited right to let that water go
back polluted by his use. Junior appropriators and downstream landown-
ers in the West have, I think, certain rights against pollution by upstream
users. I am not too clear what they are...
MR. STEIN: I found one case in Oregon which held it was not unlimited.
The case wasn't based on the pure appropriation doctrine. As the courts
often do, it was based on something else. Professor Trelease, are you fa-
miliar with that problem in western law having come up in any of the cases ?
CHAIRMAN TRELEASE: That is one of my areas of ignorance. I think
there is a lack of law on it, because to a very large extent water quality
has not been up to this point a serious problem in the West. I would say
that we are probably behind the East in that [respect] and we can learn
from the East in how you have handled your problems. I believe Mr. Smith
has a comment.
MR. SMITH: I am presently in Kansas, after 10 years of bouncing be-
tween the so-called eastern states and western states. A measurable por-
tion of that period has been devoted to administrative responsibilities in
the water resource field at the state level of government, thus I can plead
complete ignorance and absolute confusion relative to the subject under
For description of these proposals, see p. 90
In response to the last question on pollution, I would observe that the
State of Kansas is a good example of the problem in its most complex
form inasmuch as extensive oil field wastes and also natural sources of
salt pollution are encountered in addition to the more common industrial
and municipal waste problems. We have adopted the appropriation doc-
trine. However, this does not mean that a prior appropriator can pollute
the water to the disadvantage of another appropriator or any other water
user. We do, however, administer the pollution problem under a separate
set of laws, that is, pollution abatement laws. I presume you would say
these laws are based on the exercise of police power. It has been my ob-
Sservation that presentation of pollution facts in the public press is very
effective, nobody wishes to be a polluter in the eyes of the general public,
and I think you can aid your pollution problems tremendously by proper
I was very interested in the observation of a minute ago that reduction
of flow could help cause a quality problem. By and large, the East as a
whole has adopted regulations regarding quality, and I cannot see with ul-
timate development how the East can avoid adopting some type of quantity
regulation unless they sacrifice or continually modify standards they have
set for quality control.
I think the references made to waste this morning make it pertinent to
cite another concept of the appropriation doctrine that enters into the
thinking of some of us in the West. I believe what Mr. Fisher said about
waste is quite true. Certainly, there are administrative problems involved,
and in the West there are situations where releases are maintained to
cover a prior appropriator despite the fact that undue waste is encountered
in the transmission facility.
We also have "economic waste", as I imagine an economist would class
sify it. It may be of some significance to you. Perhaps by citing some spe-
S cific figures I may be able to tie to some of the remarks in the paper pre-
sented by Dr. Thomas. You probably all remember when our mighty Kaw
SRiver flowed at 500,000 second feet a few years ago. The same mighty
Kaw, when I left Topeka yesterday, was flowing at less than 200 second
feet. (I found out today that a raincoat I have been carrying in my briefcase
for 10 months is too large.)
Here the problem is presented that almost without exception every drop
of water presently in the Kaw was groundwater at some time within the
last five or ten days. It illustrates the point brought by Dr. Thomas in his
paper; namely, the interrelationship of ground and surface water in the
During this same period since the 1951 flood, we have had water rights
filed in our state increase from approximately 2,000 to something like
7,000. For that reason I would suggest that you might find Kansas a very
interesting place to study, right now because this is the first sustained
Drought since we adopted the 1945 Appropriation Act.
LAW OF WATER ALLOCATION
Returning now to this matter of economic waste. Here we have a river
whose natural flow characteristics in a period of five years have a vari-
ance from less than 200 c.f.s. to 500,000 c.f.s. The water user, however,
is concerned with the firmness of the 200 c.f.s. figure. Let's assume that
we have a logical industrial site on this river. A potential investor in this
site sees not only the natural variance in hydrologic conditions, but is
very aware of the increasing usage as illustrated by the 5,000 additional
rights filed in the past several years. Obviously, a major factor in their
decision to utilize the site will depend on whether there is available the
economic water potential they need. Further, their concern is not limited
to just the availability of water now, but also the availability of the water
in the years ahead in the face of expanding demands and erratic natural
supplies. This situation, of course, highlights the western concept of first
in time is first in right, because under that philosophy, an investor is
willing to develop the water supply available. On the other hand, any fail-
ure to guarantee the legal status of water in the face of such natural fluc-
tuation of water supply brings hesitancy of development and the water
flows on to the sea.
I am also inclined to think that utilization of the appropriation doctrine
under the natural conditions just outlined leads to better group or collec-
tive understanding of the need for water resources development. As the
firm supply is used up by rights of record, it is easier for the people to
understand the fact that we must collectively do something about over-
coming these variances in nature's cycle in order to increase the firm
yield of such a river. The answer, of course, in the example just cited
involves surface storage. We could not get the widespread public under-
standing of the need for the storage, I do not believe, under common law
because the average water user would not have as good a perspective of
the problem to be overcome.
DISCUSSION: Flexibility of western law.
CHAIRMAN TRELEASE: When I was asked to serve as chairman, I
was told that I was to reserve the power of commenting myself. I would
like to leave this talk about western water law with a thought which I think
Mr. Harris brings out very well, which was [also] touched on [elsewhere]
... and that is, do not... make too many assumptions about prior appro-
priation, that it is inflexible, that it is perhaps not suited. Don't assume
it is suited; don't assume it is not suited. I think we may have gotten a
little bit of the feeling of the flexibility of the doctrine of prior appropri-
ation-its potential for growth, from a doctrine that was for a pioneer
economy, when a man went out and took what he wanted, took the antelope
from the plain, the water from the stream... [in relation to] what we are
trying to achieve, a stable economy in the West, through a large variety
of techniques that have been mentioned: group action (by Dr. Huffman),
equating of stream flows, new engineering to bring in waters from other
areas. The doctrine of prior appropriation is demonstrating in the West
a flexibility that you may not credit it with. It has been said over and over
Again that the pattern [of water use] is frozen. What pattern do we have
frozen? Ninety percent of the water is used for irrigation. I submit that
today agriculture is still the dominant industry in the West. Do not assume
That when other uses become more important they cannot be taken care of
under this doctrine.