Irrigation is the artificial application of water to soil for the
purpose of supplying the water essential to plant growth.1
Both streams and other surface waters are used by direct diver-
sion and by storage in reservoirs. artesian flow and pumping
from natural and artificially recharged underground supplies
are also employed. In addition, scientific research seeks still
other supplies, including artificial development of precipitation
through nuclear process and conversion of sea and other saline
waters to fresh water.2 Purificatior of water contaminated by
sewage and industrial waste is also u der study."
Irrigation is practiced in some areas of the United States
having a relatively large annual b at poorly distributed sea-
sonal rainfall. It is essential to s stain plant life in a sub-
stantial portion of the West. La ds west of the one-hun-
dredth meridian were apparently considered to comprise the
western area concerned with irrigation in relation to public
lands when Congress in 1890 required that patents to those
lands reserve a right-of-way for canals or ditches constructed
by authority of the United States, Moreover, a recent re-
SIsraelsen, Inazearrom PRnCIPLES AND PB OICES, p. 1 (1982).
'A recent bill would provide for resea ch and demonstration in these
matters. 8. 1800,! 81st OoIg., 1st sess. (194 ).
SSee, e. g.,lhe Scientijlo Monthlt, Vol. -L QCI, No. 2, p. vi (August 1950);
OCA&NAz RBIVE PaEOJ Em TEa.s, L Doe. No. 678, 81st Cong., 2d seas., pp.
IV, 11, 14 (1950),
'See 1 Kinney, IBIGATION AND WATE RIo rrs, l 588, p. 1011 (2d ed. 192);
STATiacAL. ABST~Ar O p TrwUNrmE STA i, Table 179, p. 150 (1949).
'California OregonPower Co. v. Beaver Portland Cement (o., 295 U. S.
142, 157-158 (1935) ; see supra, p. 34, and i fr,, n. 9, p. 152.
SAct of August 80,1890, 1 1, 26 Stat.:371 91,43 T.. 945.
Neither the Act of 1866 nor the Act of 1170 specifies the geographic area
to which they shall apply, although the titlf of the former refers to rights-
of-way "on the public lands." See sepra, pp 35-87.
quirement for consultation by the Chief of Engineers with the
Secretary of the Interior and for cooperation was made appli-
cable to investigations concerned with tlq.uc or cpntil of
"waters arising west of the nihety-seventli meridian.' '" iid
in connection with the operation and maintenance of naviga-
tion and flood-control projects authorized since 1944, Congress
has provided that use for navigation of "watersmarising in States
lying wholly. or .paply west of theninetyreighth meridian"
shall be only suh uswe as does not conflict with beneficialcon-
aumptive use for specified purposes, including irrigation ..
SNearly 9596 ofthe total land irrigated in the United States
is within the area generally, referred to as the :17 Wester
States, -These _are: Arizona, California, Coloradoi, Idaho,
Kansas,;Montana, Nebraska Nevada, New Mexico, North Da-
kota, Oklahoma, Oregon, South, Dakbta, Texas, Utah, Wash-
ington, and Wyemining: As we shall later see, each follows
exclusively the apppropiation doctrine of water rights, or reebg-
nizeslit in' part.' Irrigation is also practiced to some extent
'Act o4 December 22, 1944 1 l(a), 58 Stat.887, 888. A previously';nted,
in providing for cooperation with "affected States," this statute defines that
term lb include those in which all or iat of the works would be l~octed;
those which in whkoe or part 'are b6th ithinithie drainage basin Ivoolved
and situated In a State ting owhlly or i part "west of thenie-r|ylgti
meridian"; and such of those "east of the ninety-eighth meridian" as,, I
the judgment of the Chief of Engineers, W l be substantially affected. See
1upra, pp. 7 "a:u* 'a'''4 I
Section 1(c) of the 1944 Act also requires that, "The Secretary of the
Interior, in making investigations of and reports on works for Irrigation
and'purposes incidental thereto shall, In relatioR to an affected State or
States (as defined in paragraph (a) of this Seetiot) and to the Secretary
of WMr;, be aubjeet to th~'shirirdvidvio 'ri\egArdiin~riestigations, pias,
proposals, andb report as described: 1i paragraph (a) Of this section for
the Chief of Engineers and the Secretary of War." 1(c)'i Stat. 8898'
: "te, b.,. l (b), 58 Stat. 889, apd Act 6f March 2, 1945, 1(l)i, 59 Stat.
10, 11. Act of July 24,19 8 12, 00 Stat. 641; ,Ae~ b June 80, 1948, '202, 62
Stat lin71,1175; Act of May '17,1950, 1202 64 Stat. 163, -.
*'n 1944, there were 19,431,000 acresof Irrigated land in these States.
Special Release Supplementing 1945 Census of Agriculture, Department of
Commerce, Bureau of Cenaus.
"5See infrt, p. 188.'
SSee infra, pp. 156-158 and the6 ummaries of portions of the relevant law
of each of the States set forth in Appendix B, infra, pp. 711-777.
in the States of Arkansas, Florida, N
The first three are generally pnaid
whle the law of Louisiana fitds its
All, however, geqOrlly recognize on
I Tthe preface to the.first edition
and WT.tr Rights, Kinney observed
crease in irrigation undertaking and
doctrine of appropri tion, a dpatu
doctrine of rippq rihts had alres
watei-righ controversies ad "a nm
statutory law on te eqbjectI."; Eigl
aced. hi four-v.rl e second edition
the adoption in the interim by many
S"Special Release Supplementing 1045 Cen
of Commerce, Bureau of Cens. -
*1 this connection, see generally Missour
AIk. 4W'% nI S. WL 2d 1S, 181. (1984): En
40 80.2 a 24 (1941,) ; Grard Trwt "oa v. iN
A, 24 21,81 (1941).:
Under a 1900 Arkansas state, cin
tlots created "for the pi~idse f ftnmidh~ng
tioh of any lands r ropsW" AaF. S.TaT. A
statute asp prortoe- fPr the-,estabisahment
STATM AWm.,. i, GtW: 8OTP, 9, |( 21-8
In Floida,. the riarin dAne A ee
Cooperative Irrlgaof districts are also au
the Florida State Improvement Commnlslo
facilities for irrigation, among other purpose
In New Jersey, a board qfe dWo freely
irrigation systems. N. J. STAT. ARn., 1940,
snch a board is authorized to take water "f
other source." I 4681-2. :
"In this connection, see generally DAMr's
pp. il-v. The right od drawing iater ip deet
CIVI CODE or LA. 3720.
Pertnent here la Kle s,statelen*zt tha
princi le follows, tlc fivi law more leely
althougli the California Courts and the Cool
attempt to justify the diversion of water
which consume the water under the eommc
AO WWIs RKm rs, i 552, p.-969 (2d ed. 19l2
SSee generally, 1 Kinney, IWGATIONI AiD
873 (2ded. 1912). ..
"1 Kinney, IsrmATsZO AND W*#rza R"inTu
w Jersey, and oauisiana."
red common-law states,'
source in the civil law.1
y the riparian doctrine."
to his work on Irrigation
n189 that, with the in-
their involvement in the
From the common-law
y resulted in numerous
of court deisions and
teen yeafrlater, he pref-
of that work by jnong
irrigation states water
s of Agr4ulture, Department
1Poc. R. ob. v. McKiev, 189
)p'A v.rier 148 Pla. 811
aet, 129.N.. q, 444 467, 20
er are available to corpoaa-
water t the public for irriga-
r., 1947, 86-1201. A recent
of irrigation districts. Ass.
Ily dppllcable under a statute
hort iL.8 & Moreover,
Smay acquire and maintain
iers may build and operate
I 40.81-1. For that purpose,
om any river, stream, lake.or
Cim CODs or LA., (1810 rev.).
red to be a servitude. DAMs
"the law of apropriation in
han it does. thvedmmon- -law,
s of some of the othrt'States
or irrigation and other uses
r law."; 1 inney, I.atlllgxo .
E mrHTS, I 507, pp. 870-
codes and irrigation-district laws, and the addition of thou-
sands of decisions by "courts eoflast resort of these Western
States, deciding or attempting to decide many propositions as
they were presented arid new phases of rights to waters." "
Statutes and decisions have of course continued to accumulate
since then. We shall not attempt here to treat this massof law
with its multiple variations from state to state.' It'should be
noted, however, that Appendix B of this volume contains inde-
pendently prepared summaries of portions of such state laws.
Our direct concern is with federal responsibility for and par-
ticipation in irrigation undertakings. To provide a necessary
part of the background, however, we shall first discuss gen-
erally the divergent doctrines of water law in their relation to
irrigation, including the use of underground water and return
flow. Siilarly. e sh all summarize the significant develop-
ments leading to assumption of federal irrigation responsibili-
ties. Then comes an examination in more detail of the nature
and scope of federal irrigation activities. Principal attention
will thus be devoted to Reclamation Law, a term which we
shall use to refer to the Reclamation Act of 1902, as supple-
mented and amended over a period of nearly 50 years by more
than 175 general, basic, and special acts of Congress." In addi-
tion, we shall consider other federal statutes significantly re-
lating directly or indirectly to federal irrigation undertakings.
A water right is a right only tg use of water-a right usu-
fructuary in character, not a right to the corpus of the water
itself."' Wiel has described the right as "real property," saying
"1 Kinney, IL eATx9n AMD WAT RIeHTe Preface (2d ed. 1912).
"Act of June 17, 1902 82 Stat. 88, as amended and supplemented, 48
U. S. C. 891 et seq. These and other statutes applying to specific projects
have been printed in a single volume entitled FEDEBAL RECLAm]ATION LA Ws,
ANNOTATD, Department of the Interior, Bureau of Reclamation (2d ed.
1943). An annotated cumulative supplement thereto carries a collection
See, e. g., Luc v. Haggin, 69 Cal. 255, 390,10 Pac. 674, 753 (1886) ; Mettler
v. Ames Realty Go., 1 Monti152, 161-162,201 Pac. 702, 704 (1921).