DISCUSSION: Necessity for legal studies and legal change.
MR. TIMMONS: I am going to ask this question, although I realize it
may be too general to answer and maybe you want to keep the questions
more specific. But, if you were a benign dictator, and given the oppor-
tunity of starting from scratch and preparing a water law for some state,
Which might be Iowa, or some other, what would you distill out of these
North Carolina experiences which would be helpful in doing that? The
thing that bothers me a little bit about going back and recounting all that
has happened in the law since 1880 and putting it in the setting of 1956 and
1960 is-how are we going to use it? How will it be of help to us; what
have we learned?
MR. ELLIS: First of all, I would say there are two general things that
this would be helpful for. One is that we get a better understanding of what
it is definitely that we want to consider, if we do, changing from.
Along with that, what it is that any legislation that we adopt in the state
will have to tie in with and relate with. Secondly, we don't know to what
extent, in a number of the eastern states, what far-reaching, extensive
legislation may be adopted over the next--I won't say how many--years,
and for that reason we in the Department of Agriculture feel the obliga-
tion to help explain to the farmer and farm leaders and others who are
concerned with making the best use of water for their purposes, as well
as we can, the existing legal framework and the alternatives, what they
can do within that framework to try to alleviate some of the problems
which they might have, such as by using contractual arrangements, and
MR. TIMMONS: You are assuming that the framework is begun. As I
Understand your answer to the question, this permits you to say within
certain degrees of certainty or uncertainty, that the framework of legal
rules will permit you to do this or that.
Shouldn't we as scientists be asking how well we will evaluate the
MR. ELLIS: I wouldn't argue that.
CHAIRMAN MALONEY: Perhaps we can boil it down to the basic issue:
Are we going to try to rework the existing system or are we going to junk
it and switch to some other system. If we are going to rework the basic
system, then one immediate question... is how can we broaden the natural
Sflow rule to get the maximum beneficial use of water in North Carolina ?
MR. WOLMAN: As a corollary to that, why do you feel prompted to
make a change, either in Florida or in North Carolina? In other words,
what I am asking is, what are the water situations which press Florida
for speed and which press Mr. Ellis for diagnosis ?
CHAIRMAN MALONEY: In Florida, at least, it is a drought that has
lasted for a period of some two or three years which has hit North Florida
irrigators pretty bad. This' coming growing season it will hit the people
irrigating in the Everglades because the level in Lake Okeechobee is so
LAW OF WATER ALLOCATION
low that the Corps of Engineers has told the people, "You will not have
enough water to irrigate."
MR. WOLMAN: The solution to that is perhaps a basic change in fun-
CHAIRMAN MALONEY: Not necessarily.
MR. WOLMAN: That is one of our prompting forces?
CHAIRMAN MALONEY: Yes.
MR. WOLMAN: Will you describe the critical situations that force this
kind of diagnosis at this particular time ?
MR. ELLIS: I would have to answer that this way, that the situation in
North Carolina, as far as the farmers and so forth are concerned, may
not be particularly any more critical than it is in a number of the
other eastern states. Irrigation is coming in quite rapidly there, however.
They now have something like 1500 or more. That is not terrifically large,
but it has been increasing at a quite rapid rate. We are foreseeing con-
siderable problems ahead. We do not have a great body of actual data, at
least I have not seen it, to indicate that there are tremendous problems
right at this moment which must be rectified.
But, looking ahead, as this thing progresses, there certainly will be
need for a pretty thorough-going study of what should be done to modify
the law, if various shortcomings become quite evident. As you can see
from as far as I have gone in this presentation, one of the biggest question
marks is the lack of knowing what the court will decide on certain things.
If we assume that the court would lean toward the reasonable use rule
rather than to say that if any substantial diminution of the flow would give
rise to liability, then the situation would naturally not be nearly so prob-
lematical as far as farm irrigators, and I would suspect other users of
water other than fish and wildlife people, and so forth, are concerned.
If they will move in that direction and clarify that point, it would not
be so critical. But whether they will or not, I don't know. I would say the
chances are fair that they might.
MR. WOLMAN: Has the inquiry proceeded far enough to indicate
whether the critical situations are in law or whether they are in develop-
ment, that is, in its simplest form, the low flow of a river puts a riparian
farmer in difficulty. Is the solution to that a new legal principle or the
modification of an old, or is it in the substantial development of water so
it eases him out of his low flow?-which is the thing that puzzles me in
much of this discussion, and it refers with equal weight to Okeechobee or
any place else.
MR. ELLIS: I would answer it this way: That in a number of instances,
of course, the development of water would provide a remedy for a number
of the water shortages. But that does not excuse us, I feel, in ignoring the
fact that if we can devise (I am not saying that the present system is neces-
sarily unsatisfactory,) a way to get the-for want of a better word-opti-
mum allocation of our water, that that is certainly worth studying, to try
to arrive at that. To the extent that we can attain some degree of solu-
tion to that problem, we have minimized the degree to which we must go
to more expensive measures...of developing water to remedy the short-
Certainly there will have to be some degree of development to solve
very many of the problems in the East. I would not say to what degree we
should look toward that as opposed to this other problem of trying to get
better allocation of the water that we have naturally flowing down the
streams or from the ground.
MR. HABER: We are... speaking about interrelated problems. There
is no question that development is one of the things that must occur. But
the judgment about development that will ultimately have to be made, in
terms of the economic necessity for particular development and the cost
that you are going to put into it, will to some extent depend on the
ultimate allocation pattern and who benefits from this development and
what the ultimate product of that development is going to be. So we are
working with variables that are constantly interrelated; in other words,
given a particular allocation policy you might need a certain type of de-
velopment. Given another kind of allocation policy, you might not need it.
Given a certain development, you might not need to change the allocation
So these things are constantly interrelated, and eventually you will find
some formula by which you judge each end of the equation in terms of the
other. It seems to me, therefore, that one of the facts that has to be de-
termined even in making a development decision, a decision on develop-
ment, is who is going to benefit from that development.
To some extent, I don't know to what extent yet, that definitely depends
on the particular law in force and the particular rights that will be pro-
MR. WOLMAN: You know, one of the curiosities historically about this,
notwithstanding the interrelationships that are perfectly sound, is in the
discussion of prior appropriation this morning and in the discussion of the
riparian principle this afternoon, both within frameworks of areas in which
u water development and use has proceeded at a very high rate over the last
50 to 75 years. From the standpoint of the realist, it gives some indica-
tion of the fact that these detailed difficulties in both doctrines have not to
t a major degree so far hampered important development uses of tremen-
dous size, perhaps unprecedented in the history of the world. That is why
I raise the question. It is a stark, real fact that the waters of North Caro-
Slina or Florida do disappear in the summer in surface streams. That is a
realistic fact. I still raise the question as to whether the solution of that
even in the interrelationship you referred to rests in a legal principle.
CHAIRMAN MALONEY:! If I may try to summarize what we have done
so far, perhaps with two or three questions...
There are three questions, I think: Are any changes needed at all ? If
LAW OF WATER ALLOCATION
those changes are needed, can they be brought about by some broadening
of the natural flow rule ? Or is there a necessity for a switch to prior
There is a third question that I would like to raise... this problem of
definition of riparian land and use of water off riparian land. If we de-
cide, or if it is decided that we should stick with the riparian system,
then the definition, I think, perhaps needs to be broadened so water can
be used on more land. If, on the other hand, there is to be a switch to ap-
propriation, then the definition perhaps needs to be narrowed, as Mr.
Busby has suggested... That is another problem that needs some serious
DISCUSSION: Irrigation permits: North Carolina, Mississippi.
MR. BARLOWE: I would like to address a question to Colonel Snow
... Under what kind of circumstances would you feel justified in turning
down a water permit in North Carolina?
MR. SNOW: To carry out the mandate in the law* regarding safety and
public interest, we try to consider, as far as possible, the riparian
rights involved. If we felt that granting a certain application for a permit
would infringe upon the riparian rights, we would deny it. So far we
have not found any case, and that is due to the abundance of water, let us
say, so far, although in some cases we have found that certain streams
have been developed much more than others.
I remember one case in a stream near Charlotte where there were six
or seven users in close proximity along the stream, and in that case we
granted the permit because of mutual agreement between some five or
six irrigators close together that a certain one would use the water on
Tuesday and another one on Wednesday and on Thursday.
We do our best to see to it that there is no infringement of the doctrine
of riparian rights. We have not, as Mr. Ellis has said, had any case in
which it was considered necessary to deny a permit. [It was found unneces-
sary,] either by determination that there was sufficient water or else
mutual agreement between operators, or some other means.
I frankly don't see the need for the law. It was passed in 1951, and as
of the middle of July 1954, which happened to be about two weeks after I
assumed my present position, only two permits had been issued.
* See pp. 218-224 for a discussion of this statute.
SYMPOSIUM DISCUSSION 375
The reason for that, asiwe understand it, is that very little, if any, pub-
licity had been given to th4 law. We understand from the State Board of
Health, which requires a permit for every farm [water system? regard-
less of whether it is used for irrigation or not; that they only come to our
department if it is to be u ed for irrigation, We understand there are some
25,000 farmers in North Carolina. We estimate 70 percent of those farms
are being used for irrigation, which would bring us down to thirteen or four-
teen thousand farms being used for irrigation, and we have issued a total of
some 850 permits. Therefore, to my mind it means there are at least eleven
or twelve thousand illegal users.
CHAIRMAN MALONEY: If I may make one comment on the permit sys-
tem, we have the same problem in Florida for about one-third of the area
of the State because our flood control district, [the Central and Southern
Florida Flood Control District] is authorized to issue permits, again with
no criteria as to when they issue them or cut them off.
I believe... they have issued permits to i00 percent of the applicants,
and they have about 100 percent of the farm, areas in the Everglades
covered. If next year we get no rain, some pf the people are going to be
cut off.., and a decision. .I. made as to who.... [is] not going to be able to
draw water, and at that tine whether they will turn down new permits.
Our discussion is almost 4p.
MR. FALK: This discussion raises a question that may be pertinent
elsewhere: the question between the realm, of law and the realm of fact.
Particularly, in the permit system we see the alteration of the law has
not created a responsive situation in the pattern of actual use. I think, in
trying to frame solutions to various kinds of water problems, that is a
pretty important element, to gauge to what extent a change in the law will
change the pattern of actual use. I don't know if there are any ways to go
about doing this or not...
MR. NELSON: I would like to just put in my oar for a moment. From
the standpoint of that same problem in Mississippi, I would like to try,
when we have a little more time, to go into the background of our law.*
...[On the matter] of having a large number of people irrigating without
permits, I think what we tly to do in Mississippi is to bring the law into
accordance with what is actually going on in the State rather than to try
to force people to conform to the law. You know people in Mississippi-
they are going to do what they think is best for them at that particular
time. Our study showed, just like yours did, that we had ten to fifteen
thousand farm ponds, dam' on streams which were being used for irri-
gation and for other uses. We got around the principle of having every-
one run and get a permit by exempting, I think, 300 acre feet of use in
a pond which a man constructs.
MR. SNOW: I remember seeing that in your law.
MR. NELSON: There has been a lot of theory batted around here today.
See pp. 70-74.
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I think you should realize from a practical standpoint, those of you who
are familiar with the state legislature and know how it works, that in
Mississippi, for instance, we could have gotten no change in the law if we
had required everyone who wants to irrigate a piece of ground to come
running to the state capital and get a permit. They wouldn't just hear of
that. What we did was to realize that for the small user-where a man
would gather up this water that would be wasted anyway and puts his
money to use in building a dam-let him go ahead and use up to 300 acre
feet without having to account to anybody; and to spend our time work-
ing on those parts in which there was a lot of work to be done and where
conflicts could be of real damage.
As a suggestion, you might amend your law to exempt users below a
certain amount (to take care of all except the very largest users) and thus
clear your decks for action along some other line.
I would also like to bring up one other thing, and that is there has to be,
it seems to me, more information on the complete status of all phases of
the hydrologic cycle. I have only run across one or two places where all
the information was put on IBM cards or tapes, where you could use an
electronic calculator to give you a reasonable answer on which to base
your results rather than just making a stab in the dark. That would have
to be done in order to justify a refusal to grant an appropriation, if you
were hauled into court on it.