Title: Discussions
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003066/00001
 Material Information
Title: Discussions
Physical Description: Book
Language: English
Publisher: The Ronald Press Company
 Subjects
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 18
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003066
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



DISCUSSION: Public rights in public waters. Effect of uncertainties of
riparian law upon investment for irrigation.


MR. GREGORY: I have a...question...[that] may bring out some of the
legal problems...[that is,] why we are interested in the legal aspects of
water use as well as the physical aspect.
Suppose the farmers of the Paw Paw Valley do go ahead and install
supplementary irrigation systems, as it looks they will be doing. It is
quite possible the water flow would be reduced below the 300 feet-per-
second that you have indicated is necessary for pollution disposal. That
would result in a decidedly unhealthy condition in the lower river valley;
and it would also affect, of course, the communities that depend on the
Paw Paw for waste disposal and those two municipalities that depend on
it for municipal water supply; and as a third aspect, it would decidedly
affect those recreation seekers and lake home dwellers who depend upon
a given lake level for the enjoyment of the investment they have...[made].
The question which I would like to address to somebody in the legal
profession is: What would be the legal responsibilities of the upstream
riparian owners who have exercised their riparian rights, what legal basis
would there be for restoring or for requiring maintenance of this minimum
stream flow which Mr. Billings has indicated is vitally necessary?
CHAIRMAN HABER: You mean, for recreation?
MR. GREGORY: Recreation or any of these other necessities.
CHAIRMAN HABER: And for pollution control, and so on?
MR. GREGORY: Yes.
CHAIRMAN HABER: As far as I know, the matter is very doubtful. As '
far as recreation is concerned, certain recreational uses on certain types
of streams are considered rights of the public.
The question originally was, is it a navigable stream? In Michigan the
loggers came into the picture and log floating became a test of the public
right, and that was extended to other public purposes, too. When the log-
gers got into trouble with the mill owners, then that was restricted to some
extent. But in recent years, when recreation interest came up again, the
log-floating matter has become not so important. In one case the court has
said that public water is any water in which you can establish a public need,
a public right, (which would include fishing and hunting). It is not clear just
what waters would be considered sufficiently navigable or public so that
these public rights extend to them.
Where waters clearly come into that category, then, of course, the public
right to fishing and hunting would be protected against riparians. The ri-
parian rights would be cut down, because the rights of the public are super-
ior...As to pollution prevention, the only thing one can say about it is that
it might be a proper police power measure. While as far as I know, no
Michigan case has yet ruled on that particular question, I think there is
no doubt that the courts would uphold it. If the Michigan administrative
agencies should actually set a definite minimum stream flow, legally, I am







LAW OF WATER ALLOCATION


quite sure (except for factual questions-whether this was actually neces-
sary) the courts would uphold this as part of the police power...
MR. BEUSCHER: I would like to remark that in my own state [Wiscon-
sin] it now seems that, if the court can discover that any public use can be
made of a tiny stream, then it is a "navigable stream," that is to say, these
public rights attach to it. If it supports three trout, it is navigable, and
these public rights attach to it.
This is, I think, a subject worthy of a lot more investigation even just
in terms of the law books. And how does this really work out, in terms of
protecting the public rights where private demands are made upon water
and there is an insufficient supply at the mbment to satisfy both the public-
trust rights and the private demands ? Does anyone want to say anything
about that?
MR. TRELEASE: I would like to say that in the West, Colorado started
out in 1876 saying that all the waters in the streams belonged to the pub-
lic, and that has been widely copied in constitutions and by statutory
declaration.
As far as building up a system of state law is concerned, that may be a
S euphemistic premise, a basis on which you can get people to accept state
regulation of water rights: It is the state's water and therefore the state
can do this to you. But it is a great source of argument. A water user
will argue that the state just can't declare it is public water, that it was
his private water before they said so, and they are trying to take it from
him.
Most, I believe, of the things that have been done in the name of appro-
priation have not depended upon this basic premise of state ownership, al-
though some of the reported opinions build the system on that. In states
which do not have such declarations, they have the same system or poten-
tialities of obtaining the same system.
Except for one area, of state against national control, which is current
in the West, it is my personal opinion that those declarations have no real
Influence on the ultimate decision or progress that is made.
MR. BEUSCHER: They do in Michigan.
MR. HABER: I would like to comment on that. There may be a mis-
understanding here. As I read those cases,* what happens in Michigan, for
example, is that the state is a trustee. In other words, it doesn't own the
Water in the sense that this would give it authority to allocate the water to
private individuals for all sorts of uses. But, the trustee must keep these
waters open for the public users. In Michigan that came up because there,
Sthe State, unlike many other states, granted away the stream beds, not
only in navigable streams; in other words, the ownership of the stream
bed was not in the state in a navigable stream, as it is in some of the
other states.


* See pp. 404-405.







520 SYMPOSIUM DISCUSSION

The question of hunting and fishing rights arose, and the old common
law was that whoever owns the stream bed has the right to hunt and fish.
In the states where the state owns the stream bed in navigable streams,
that meant a public right. But in Michigan, since there was a private
ownership of the stream beds, the argument was, and some of the early
cases even held, that the right to hunt and fish was in the individual. The
later cases came along and said that since the state is a trustee of this
public right and was a trustee when it got the property from the United
States, that it was a trustee of the public right and it had a right that it
could never divest, that even if it divested the stream bed, it was always
subject to the public trust.
This raises a possible obstacle to regulation rather than creating a
possible freedom. It may mean that in these public streams you cannot
cut in by legislation, into the public rights, to the particular public places
by allocating the water to certain other uses, like manufacturing, and so
on, where it cuts into the public right.
MR. BEUSCHER: Our court held that the state trust was to be admin-
istered at the state level. In a situation where the legislature delegated
the authority to decide whether there should or should not be a dam
across a navigable stream to a county board, the court said that was un-
constitutional. This was a decision that only the state could make as
trustee over these public rights, and then there might still be a contest
as to whether the trustee had breached the trust.
MR. TRELEASE: I think what I said would still hold. In Missouri quite
recently there was a case in which public rights to fishing on small streams
was upheld without going through that same line of reasoning. In other
words, if the result is functional, it will be reached regardless of the
statement of public ownership or private ownership. May I ask Mr. Bar-
lowe a couple of questions, as a witness? You say you do a lot of talking
with farmers and that they worry about whether or not they would be
justified in investing their money in the pumps and sprinklers for irri-
gation. Do you have any evidence that because of the uncertainties of the
riparian law, which you tell them about as an economist, that some peo-
ple do not invest, some non-riparians do not invest, some people who are
in areas of a good deal of water use are afraid to install this equipment?
Are there such people?
MR. BARLOWE: I don't conduct a follow-up, but I know of one case
where I think the odds were enough so that they didn't have a very strong
position. I pointed out some of the obstacles they might run into, and they
have not invested.
MR. TRELEASE: I think that condition is likely to increase as water
use increases.
MR. BARLOWE: Yes.
MR. TRELEASE: We have had a good deal of question raised by Mr.
Wolman as to whether this law makes any difference, whether people just







LAW OF WATER ALLOCATION


go ahead and develop regardless of the law, and whether or not this is
simply a problem of supply. On that, I don't know whether we could ever get
any answers about whether storage facilities to equate this flow [would be
feasible.]jAre there such dam sites [in the Paw Paw Basin], Mr. Billings?
MR. BILLINGS: Very few. The great potential is in the development of
farm ponds, which will cost a lot of money.
MR. TRELEASE: Is there any evidence that those are not being built
because of legal uncertainty?
MR. BILLINGS: I don't believe so, not on a very large scale, at least.
MR. BARLOWE: I would be inclined to agree with you, because I feel
that a lot of people are going to go ahead because they have very little un-
derstanding of the issue. Those who occasionally read an article in the
newspaper will sometimes come in and ask questions about their situation.
I think these are probably in the minority. Maybe one of the better ways to
illustrate this would be to indicate the attitude of some of the irrigation
and equipment dealers in the state. They are obviously in the business of
selling all the equipment they can. I know a few of them have indicated that
they have no worries about water rights. They don't discuss it with farm-
ers because they fear this might queer the sale. One of them said that he
didn't want to raise the issue because if they got enough farmers irriga-
ting, they would constitute enough of a pressure group to get the situation
taken care of.
MR. TRELEASE: Maybe we should take Mr. Wolman's word and go
home now.
MR. NELSON: I might comment from the Mississippi standpoint on
those areas in which development was retarded. We find that the average
farmer, if he can afford to buy the irrigation equipment, goes ahead and
buys it. If he can build the reservoir, he does it. The only people who are
heldback are the marginal farmers, who go to the credit agencies to bor-
row the money and there run into the fact that they may not have clear
rights to take water. But the law has not held back the development of
Water, to any extent.
MR. BUSBY: I think there is a great gap of information regarding the
feeling and attitude of the farmers and their knowledge about this problem.
I think that this discussion this morning has probably been the most help-
ful, at least it has been to me, regarding this whole problem. I think there
Sis an enormous gap between what we have been talking about in the past
day or two and the understanding of the average farmer or local business-
man as to what his water problems may be.
He is in this sort of position. He doesn't know for sure what his needs
are for the future. He has had no real way of ascertaining them. There-
fore, he is not in a position to determine what his position ought to be with
reference to any legislation or any policy.
We have been trying to help some of these committees get the kind of
factual information they need, so that local people, local leaders, state






522 SYMPOSIUM DISCUSSION

leaders, will have the facts so that from that they can determine their
future needs and what their position ought to be in connection with policy.
It is quite a problem to help some of these people get organized and
get the facts. There has been a tendency quite often in the past just to
draft a bill. That doesn't work. The next step has been for some of the
commissions to move out and hold public hearings. In many cases that
has been a failure because local people have not been prepared to par-
ticipate in those hearings. They haven't had the way of finding out, de-
termining what these problems are, what their needs are, so that they
can come into a formal hearing and actually present their needs in a
meaningful way.
There is some light on the subject. The experience in Mississippi was
designed to improve upon the previous work, in other words, some of the
gaps...in some of the other states. What is going on right now in Arkansas
and Florida is designed to try to improve upon what was done in Mississippi,
not with reference to any particular type proposal, but mainly to try to get
factual information and to help local people participate in a way so that
they could render some judgment in the matter.
You asked awhile ago if there were any suggestions about this situation
in the Paw Paw in Michigan. I don't have any particular suggestion to
make with reference to the Paw Paw, but I do have a suggestion with ref-
erence to this whole subject, that the most important part of this job is
to try to find ways and means to help John Jones out on his farm, his
neighbor and his community, and his town, to get some facts to deter-
mine what his needs are so that he can come into the legislature and
advise them as to what their policy ought to be.
Until we get to that point, we will not have, in my estimation, a prac-
tical approach. I think this presentation here this morning on the Paw
Paw has been most helpful.





DISCUSSION: Investment protection and the public interest under
riparian and appropriation law.


MR. HARRIS: The question I would like to raise...if you consider the
public interest, and if you consider, for instance, the strawberry growers,
I can't understand the rationale of allowing another grower, either riparian
or non-riparian, to deprive a farmer of his investment. I can't believe that
that would be within the public interest...
It seems to me that [under the riparian system] you might have a
farmer-not talking about more reasonable use or higher use--it would







LAW OF WATER ALLOCATION


seem to me to be possible that [his] use could be closed down, and as far
as the public was concerned there would be no additional public advantages-
in fact, that there would be a detriment-[since], just because of location,
for instance, a person might be deprived of his use of water.
CHAIRMAN HABER: Theoretically, that wouldn't be true. Theoretically,
the court will consider the various relative benefits of the use in a partic-
ular conflicting situation; in other words, if an upper riparian should come
along and start using water as against a lower one, interfering with the
lower riparian's use, the court isn't automatically going to say that the
upper riparian will prevail. It will look into the reasonableness of each
use, and then come to some conclusion. The point is you cannot predict.
MR. HARRIS: What if they are exactly the same use?
CHAIRMAN HABER: If they are the same, the way the Michigan cases
seem to go, Michigan seems to prefer the upper user. This is not always
true. In some cases they have apportioned the water. Most of the appor-
tionment cases affect people who are fairly close together. If you get one
way upstream and one way down, it is difficult for the court to work an ap-
portionment system unless they get in a lot of other users. This raises
one of the practical problems. Even the relative benefit point raises prob-
lems, because as we just saw, it may be extremely difficult for the court
to know what the relative benefit is. It has no basis to go on.
MR. KRUTILLA: Take a user who comes in more lately to employ the
water. If it can be demonstrated that his use will create a value to him so
large and so much in excess of the value of the use to the former user which
he may displace, in excess of the value created to him, may there not be this
compensation provided in the Supreme Court adjudication of the case where
the second user with the higher value may compensate the former user for
the losses incurred? Does the court recognize this sort of possibility?
CHAIRMAN HABER: I would say that under the present system it is
possible, I mean, it is possible for the court to do it. In the Monroe Carp
Pond case* a similar problem (not quite the same) came up. If you want
to go into the technical point-the court can do it, as you say, but rarely
will in this type of situation. iThe court will often do it if the later user
has actually made his investment, assuming that it is a relatively larger
investment and has a relatively larger yield, and the lower user complains
and tries to enjoin the upper user; then the courts have applied the Bal-
Sancing of the Equities doctrine, in which they have denied the injunction
partly on the protection-of-investment ground and partly on the basis of
the relative benefit to the community, and granted permanent damages in-
stead, which amounts to compensation.
It means that the new user who wants to make the larger investment has
to do so prior to the time that the case comes into court. He has to take his
chances with it. The application of the principle of the Balancing of the

See pp. 383, 397.


I





-t
524 SYMPOSIUM DISCUSSION

Equities is a highly discretionary principle. The courts can use it or not
use it pretty much as they want to. Whether a particular entrepreneur
would be willing to take that risk is a sociological question. Does that
answer your question ?
MR. KRUTILLA: Yes.
MR. MALONEY: May I ask Mr. Harris a question? In the Lea County
situation, which you described yesterday, what is the water actually being
used for, what sort of crops ?
MR. HARRIS: Cotton, primarily.
MR. MALONEY: Where is the cotton being used, or where is it going
at the present time ? Isn't a large amount of it going into storage ? Is it
then a beneficial use of that water, as you described it, to store that cot-
ton and have the government pay for the surplus, and at the same time, to
deplete a water supply that will be completely gone in 40 years ?
MR. HARRIS: That raises the problem that I think is the most serious
problem from a national point of view. In the West and Southwest, you can
put more water and. more fertilizer and more money into your land; the
only cash crop is cotton. They could make a lot of money off it. If you con-
sider it from the national point of view, it becomes a rather serious ques-
tion because you are depleting water resources and not using the cotton,
in fact, you are increasing an already serious situation.
MR. MALONEY: At the same time you have blocked off possible new
uses through your system which might be much more beneficial to the
national picture ?
MR. HARRIS: That is assuming that in this artificial supply and demand
situation, as far as those farmers are concerned, the subsidy price is the
price of the demand, and that is the price they get. However, unless you
change the subsidy situation you get into a very hypothetical situation about
our greater use. Certainly any of those users could change it to some
other use, if they could afford to pay the price. Those water rights sell
for the price of the land. With water rights, it is approximately $250 to
$300, and the price of the water rights alone is about $200 an acre. Actu-
ally, if that water was worth $200 an acre for that million gallons of
water a year, then they possibly would be able to purchase it. They are
using it a good bit for the oil industry in that area...
MR. FOX: I wonder what recourse the riparian owners would have
downstream if you had extensive ground water development for irriga-
tion over the watershed, so that you deprive the riparian owners of the
water that they are using at the present time ? Under present Michigan
law how would it work? What recourse would they have ? How would the
resources be allocated?
CHAIRMAN HABER: The matter is completely uncertain under present
Michigan law. You are talking about a situation where the ground water
depletes the stream flow.
MR. FOX: Assuming that it does.






LAW OF WATER ALLOCATION


CHAIRMAN HABER: There is no law in Michigan today about the inter-
relationship between ground water and stream water users. We don't know
what a court would do with that type of situation. The general rules on
ground water in other states are that if you have percolating water that is
Stributary to a stream, then the stream water users are protected against
the depletion by the ground water user, but only if it is tributary to a
stream. Since percolating waters are defined as waters that are not in
an underground stream but simply seep through the ground, it is very dif-
ficult to know whether there are any percolating waters tributary to a
stream or that there are any that are not tributary to a stream in an area
such as this. You cannot tell what the court will do.
The rules as to ground water use and as to stream water use are diff-
erent thus far. They are a reasonable use rule in both instances, but the
reasonable use rule on the ground water thus far has simply meant in ap-
plication that you can't transport the water off your land and deprive
another ground water user. But if you use it on your land, thus far the
cases have indicated that you might be able to deprive another ground
water user. Whether they would take that to a situation where it has a re-
lationship between ground water and stream water is hard to say.
In that situation they could say, "We are going to apply the ground
water rule." The ground water rule is in some flux. It is possible that
it will move into the reasonable use rule that you have in stream waters.
If they are willing to go as far as to change the ground water rule, or let
it develop to the point where it is the same as the reasonable use rule in
stream water, if they are willing to administer an interrelated situation
of ground water and stream water as a unit, rather than say that they are
different bodies of water and nobody in one has any right against someone
using the other, then you will get a riparian rights rule as to all the water,
and then the courts would go on the principle of reasonable use in the in-
terrelated uses. Just as they do along a stream now, they would say, "Is
the ground water use reasonable as against the stream water use," and
all the various factors of reasonable use would come in. Does that answer
it?
MR. THOMAS: May I say what the riparian owner in Texas would have
a right to based on the Fort Stockton decision: the ground water user has
the right to the water that he may take from his well, so the stream user
has no right to the base streamflow.
CHAIRMAN HABER: There you have a rule of capture.
MR. THOMAS: In western Texas, by soil conservation practices, terrac-
ing, reservoirs, the flow from individual storms has been reduced, and he
has no recourse there because the water has been held on his land. He has
no right to flood waters, and all he has is about what rains on his channel.
MR. SMITH: To muddy the issue a little further, the City of Emporia vs.
Sodine, Kansas 588 or thereabouts, had one of these situations where the
court found that the ground water user had to make his use reasonable in






SYMPOSIUM DISCUSSION


regard to the stream riparian owner, and that therefore curtailed the
ground water pumpage to some extent in common law, which would be in
direct opposition to Mr. Thomas' Texas case...
MR. MARQUIS: This raises one point with respect to this question of
what the courts would and would not do in connection with these matters.
It seems to me, as to interim measures, at least, there is nothing that I
know of that would prevent a...legislature from saying that this rule and
not the natural flow rule shall apply, and that it shall apply with respect
to all kinds of water, surface or ground, percolating or underground,
either in and of themselves or related to each other.
MR. STEIN: In connection with this I think the same thought runs
through the whole discussion, and that is the emphasis on the law of
private remedy in the situation. You refer to the present law and the
law in the past. In the East, at least, and, I would suspect very much,
in the West, a good portion of the accommodations that take place are
not reflected in the suit between a lower riparian owner and a user up-
stream; but rather a good portion of it is reflected in contractual ar-
rangements between people and action taken by the public agencies.
In our work we have dealt with some complicated situations. What
happens generally is that a water user, whether it is a city or industry,
goes out and seeks an additional source of water supply; if that city or
industry can satisfy the public agency involved and can take that water
supply, I think generally they take their chances on its being used (also)
by a private user downstream.
I think the lack of cases and that is the key point indicates that
those suits are not too frequent. One of the approaches in dealing with
this situation, rather than dealing with the law of private rights, is to
develop public agencies which sort of regulate that...[For instance, with
regard] to the question which just came up on drilling the well...a well
drillers' code [may be proposed]. Presumably if a man has to get a
permit from a state agency before he can drill a well and put it into
operation, that will exercise some sort of control. I think in the absence
of that, he drills the well anyway and takes his chance.
I would suspect that in the dealing with water law in the East, that is
what has been the actual, successful pattern of legislation in the past, that
is, the superimposition on the private rights of water law [of] these pub-
lic agencies which have their powers derived from the police power of
the state.
Just one more comment. I think in relation to what Dr. Wolman said,
whether we really should deal with revising the public law of water rights
of the eastern states, we are faced with a kind of nasty situation. Our
studies indicate that 44 states at the present time have study groups. And
all of these study groups, not all, but a great majority of these study
groups are directed to come back with legislative recommendations. It is
very difficult once you are under that mandate to come back with nothing.


__






LAW OF WATER ALLOCATION


Before I went into law, in undergraduate work, I majored in history.
Nothing was so dismal as the man who would investigate a period in his-
tory to try to find out something new and find that all his general assump-
tions, all the general assumptions that all the people had about that period
were true and he just had to confirm them. I don't know if that is the kind
of situation that the study groups are faced with, that possibly the answer
might be that, "No, we don't need any legislation to deal with private
water rights in the states."




DISCUSSION: Relationship of ground and surface water rights under
appropriation laws.


MR. THOMAS: There was mention made of a riparian going to ground
water. I think it might be worth describing what happens in a state that is
strictly on the appropriation doctrine for both surface and ground water.
As you know, most of the western states have surface water rights that go
way back to the early settlement. These ordinarily are the oldest rights.
If a stream becomes developed sufficiently so that because of wells along
it that water ceases flowing, the man may eventually go to ground water.
But it is not only in the courts, it is also in the administrative agencies
and in our general thinking that ground water and surface water are sep-
arate. When he makes an application now, under the appropriation system
for wells, he doesn't have this same ancient right that he had on the stream,
which may have been 1870, but he has a right junior to the wells that
caused his surface water right to cease.
So, you have that little discrepancy there, that a man with a very early
right to water, if that water ceases because of ground water development,
may find himself coming in at the tail end of the group of junior appropri-
ators, as far as the surface water right is concerned, but they are senior
to him as far as the wells are concerned.




DISCUSSION: The need for further studies; hydrologic data in relation
to water-management policy.


MR. BARLOWE: One of the first big problems posed by the Michigan
situation is the problem of administration. I think it is bigger than some
of the legal issues we have run into. We have had to recognize that no






SYMPOSIUM DISCUSSION


water-rights legislation could really be administered in a decent way in
the state [Michigan] without far more information that we have on hydro-
logical conditions.
You know, we talk in terms of surplus water in streams. Mr. Billings
has a good definition of surplus water, but on many of our streams we
don't know how much surplus water we have. Even in the Paw Paw Basin
we are talking on the basis of an average of three years; we need a longer
average to know much. We run into much the same situation on ground
water. We don't have enough information for intelligent decisions on ground
water. Somehow the legislature hasn't responded to our pleas for help to
get the basic information. We can talk in terms of an economic situation,
but we can't get anywhere until we get the physical data.
MR. HARRIS: I want to make one pessimistic comment to Mr. Barlowe.
He said there was a great need for further study. I might point out the
Roswell artesian basin in New Mexico has been one of the most studied
streams and basins in the United States, with very definitive work going
back for 70 years. It is continually going on. There is a good deal of
money spent on it.
I am afraid that I would have to report that every study poses more
problems, and that very few of them have offered any solution. So that
we are not in much better shape than we were when we first started in the
1880s, as far as the technical studies that have been made-and I would be
the first to propose them, and have fought for them-the problems...[re-
main]. The trouble that the people who have to translate them into social
action have...is [that] the scientists and hydrologists very seldom offer
any practical approach to [possible solutions]...
Then you get into economics and law...we have not [yet] been able to co-
ordinate them sufficiently, and possibly have not been able to understand
them. But the fact remains that after 70 years we still see the need for 70
years more of investigation, and we are pretty sure by that time that we
will have the problem solved because there won't be any water there then
to worry about!
MR. KRUTILLA: I would like to ask Mr. Harris what his view regarding
the problem is, whether the 70 years of research and studies have simply
been directed to answering the wrong questions, whether the right ques-
tions have not been posed or, alternatively, have the scientists lacked the
techniques to develop information which the proper questions would need?
MR. HARRIS: I don't know. I came here hoping to be enlightened upon
it, about a better approach. I don't know what the best approach is. We
certainly know all about our weather. We have stream gauging. We know
all about the water tables. We can inventory the water. Maybe the people
who are working in the social field are not able to translate that into
political action.
MR. KRUTILLA: Would you say we need some more studies?
MR. HARRIS: Yes, in fact, I am convinced that in New Mexico we have






LAW OF WATER ALLOCATION


to do more studying. Dr. Wolman pointed out that we have to move slowly
because we don't have enough information. I think if we merely collect the
information we will never have enough.
MR. KRUTILLA: I think one of the real problems here is to recognize
what the problem is, and then state it in such a manner that questions which
have to be answered will receive the attention necessary. To a great extent,
I think it may be said that a great deal of energy and effort has been in work
that is not relevant to the problem. May this not be the case ? We have to
zero in some of our research more tightly to get the information we need.
MR. HARRIS: I think that is true. I think possibly in New Mexico the
problems have been studied, and then the people in the field, for instance,
specifically the U.S. Geological Survey, have not been willing to study it as
to more feasible alternative methods [of water use and development] be-
cause they felt the law is so stratified that there is no way they can change
the place and method of use. And when you work with our governmental
agencies...it doesn't make any difference what bureaucratic organization is
doing it, the engineers will make the assumption that they should not even
point the direction for corrective work to be done.
I am sure it is generally true all over the country, that the disciplines,
the basic science disciplines of engineering and hydrology -{those]who
study the problem and collect the data-they will not study a problem which
probably requires a change in social or political structures, because they
feel that is out of their line. At least as far as the U. S. Geological Survey
is concerned, we have not been able to get them to assume that even laws
may have to be changed and property rights rearranged...
MR. THOMAS: I think the history of the Roswell Basin does show just
what has been pointed out, that you need advance on several fronts. The
hydrologic data would not do it alone; it was too limited in scope. Each time
we assess a problem it seems we don't find all the boundaries.
In the case of Roswell, [early] study was primarily of the artesian waters.
It was completed in 1927 or so, and [another] ground water study followed
after that. An area was declared closed in the hope that that would prevent
additional water from being taken there and hold it in balance. The people
found [that although] this area, with its designated boundaries...was closed,
they could move outside a bit and get the same water. In other words, the
[designated] reservoir was not sufficiently large in scope to have the con-
trol...hoped for. They did close the area that had been developed at the
time, but what they had not done was prevent the reaction of people to that.
Another thing is that the artesian reservoir is of some depth. Above that
it was possible to take water from streams; so what [is called] the shallow
aquifer was developed. When you take the water out of the shallow aquifer,
you take out some of the water that holds in the artesian area...
They have tried to hold...to a rather consistent and uniform withdrawal
but that withdrawal has increased by 50 percent over the years. The people
will find various ways to do it. They will ask for a replacement, drill it
twice as big and get more water; or they go outside a declared area; or they






530 SYMPOSIUM DISCUSSION

find another zone which is not within the limitation. So that the reactions
of people to the water [situation] are something that goes beyond the hy-
drologic data. You can go back through the hydrologic data in history and
see how those things happen. But predicting for the future would be dif-
ficult, if you consider only the hydrologic data.
MR. SMITH: ...Not in defense of engineers or the Geological Survey,
but as to Mr. Harris' [remarks] ... I agree with him that those in the
engineering field do not often enough try to project the solution required.
However, from a professional standpoint, I think that those of us who
work with the data-collection agencies particularly feel, that the states
and other people should assume the responsibility of providing the techni-
cal people with...[such projections]. Let's leave the data agencies hallowed,
fact-finding organizations...[lest it be said] that they are getting their data
to give us the policy we want! Let's keep our data factual.




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs