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7


WATER RESOURCES AND THE LAW






















PUBLISHED UNDER THE AUSPICES OF THE UNIVERSITY
OF MICHIGAN LAW SCHOOL (WHICH, HOWEVER, ASSUMES
NO RESPONSIBILITY FOR THE VIEWS EXPRESSED) WITH
PARTIAL AID OF FUNDS DERIVED FROM GIFTS TO THE
UNIVERSITY OF MICHIGAN BY WILLIAM W. COOK.


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MICHIGAN LEGAL PUBLICATIONS



Frontiers of Constitutional Liberty
Paul G. Kauper

Nonprofit Corporation Statutes
Ralph E. Boyer

Foreign Personal Representatives
Banks McDowell, Jr.

Conference on Aims and Methods of Legal Research
ed. Alfred F. Conard

International Law and the United Nations
1955 Summer Institute

Current Trends in State Legislation, 1955-1956

Public Policy and the Dead Hand
Lewis M. Simes

A Common Lawyer Looks at the Civil Law
F. H. Lawson














WATER RESOURCES AND THE LAW





STUDIES PREPARED BY THE LEGISLATIVE RESEARCH
CENTER, UNIVERSITY OF MICHIGAN LAW SCHOOL AND
CONTRIBUTIONS OF PARTICIPANTS IN THE TENTH
ANNUAL SUMMER .INSTITUTE OF THE LAW SCHOOL,
HELD ON SEPTEMBER 4-6, 1957.










PREFACE

Professor William J. Pierce, Director
Legislative Research Center


UNIVERSITY OF MICHIGAN LAW SCHOOL
ANN ARBOR
1958




























Copyright, 1958

by

University of Michigan


Composition and Lithoprinted by
BRAUN-BRUMFIELD, Inc.
Ann Arbor, Michigan











PREFACE


This volume combines the written contributions prepared for the
Tenth Annual Summer Institute of the Law School on "Water Resources
and the Law" and the monographs and Model Water Use Act prepared
by a portion of the staff of the Legislative Research Center of the Uni-
versity of Michigan Law School. As a result, the volume covers a
wide range of subject matter representative of the views of both the,
engineering and legal professions.


Conference on Water Resources and the Law

On September 4, 5, and 6, 1957, the Conference on Water Re-
sources and the Law was held at the University of Michigan Law School
in response to the need for a re-examination of the rules of law govern-
ing water utilization in the eastern United States. The Conference pro-
ceeded generally along the lines of a workshop, and special considera-
tion was given to the proposed Model Water Use Act. The participants
included engineers, economists, and lawyers, representing industry,
the federal government, state and local governments, and educational
institutions. Through the interchange of ideas at the Conference, a
number of concrete suggestions emerged that will be beneficial in the
further development of water law principles.
We are indebted to all the participants and particularly to the fol-
lowing discussion leaders for their contributions: Clarence A. Davis,
former Undersecretary, Department of Interior; Earnest Boyce,
Chairman, Department of Civil Engineering, University of Michigan;
Thorndike Saville, until recently Dean, College of Engineering, New
York University; Dr. Harold E. Thomas and Arthur M. Piper, United
States Geological Survey; Charles M. Haar, Professor of Law, Harvard
University Law School; J. Byron McCormick, Professor of Law, Uni-
versity of Arizona College of Law; and Clarence J. Velz, Chairman,
Department of Environmental Health, School of Public Health, Univer-
sity of Michigan.
The Law School also wishes to acknowledge publicly a debt of grati-
tude to Gilbert H. Montague, Esq. of the New York Bar for his gener-
ous assistance and continuing interest in the Summer Institute program
and to Professor Charles W. Joiner, Chairman of the Michigan Law
School Institute Committee.










The Model Water Use Act

The papers and monographs published in this volume demonstrate
the fundamental importance of water in our society and the relationship
of existing legal rights in water to the problems of the future. None-
theless, it seems desirable to reiterate certain basic propositions in
order to lay the foundation for the conclusions reflected in the proposed
Model Water Use Act. Why should a revision of the law governing
water use be proposed? What benefits can be expected? Do the dis-
advantages of any revision outweigh its benefits? These are the ques-
tions which must be answered in our legislative halls, and the answers
will determine the course of water development and use in the years
that lie ahead.
In drafting the Model Water Use Act, the staff of the Legislative
Research Center has had two major areas of concern which have led to
the policy decisions contained in the proposal. These are the factual,
setting and the legal setting in relation to water development and use.
Our analyses have led us to the following conclusions:
(1). The demands for water will continue to increase. All avail-
able statistical information relating to population growth and economic
activity indicates increasing demands for water. Not only can in-
creased demands be expected because of these factors, but also each
individual in society is using an ever-increasing amount of water for
his needs.
(2). The water resources available to meet increasing demands
are variable. As a general proposition, the humid areas of the United
States, which encompass most of the eastern states, have a sufficient
supply of water to permit further development and use. In the arid
portion of the United States existing water supplies may not be sufficient
for further economic development unless more comprehensive conser-
vation and developmental programs are undertaken. However, water
resources are renewable and mobile so these resources are continually
changing daily, seasonally, annually, and cyclically. There is
abundant evidence that even in the humid regions of the United States,
the water supply varies from region to region and even from acre to
acre.
(3). Further scientific research regarding our water resources
and the hydrologic cycle is imperative. Despite the fact that consider-
able research into our water resources and the hydrologic cycle has
been undertaken, there is an amazing lack of information for large sec-
tions of the United States. The accumulation of factual data in many
areas would be extremely helpful in planning water use and development.
We also need to know substantially more about the basic scientific









principles involved in the hydrologic cycle. Furthermore, basic studies
into the problems of replenishment, storage, recharge, and conserva-
tion of water resources must be encouraged. For example, consider-
able work remains to be done before we can be in a position of knowing
the interrelationship of soil conservation practices andwater conser-
vation.
(4). Comprehensive planning of water development and use appears
essential. For a number of years hydrologists, geologists, engineers,
and representatives of other disciplines have provided many basic
studies indicating the interrelationships among types of water use. We
have been given warnings in many watersheds that existing supplies in
relation to their use have proved or will prove to be inadequate for fu-
ture needs. Once these warnings are voiced, economic developments
in the affected areas are thwarted. Planning for increasing the avail-
able water supply or for improving its quality may well avoid the re-
strictions that will otherwise be placed upon economic activities. In
the past voluntary cooperation among users has been highly beneficial,
but for most areas of the United States growing conflicts among users
are emerging. In view of the potentialities of the water resources in
most areas, it is evident that water should not become the stumbling
block to further economic development and an increased standard of
living.
(5). Existing legal rules may impede the development of water re-
sources and may result in water not being used for the mostbeneficial
purposes. Under both the riparian and prior appropriation systems,
rights in water tend to be fixed in perpetuity so that less economic uses
may be continued even where obviously more beneficial uses could be
achieved, absent these rights. The prior appropriation system does,
however, assure continued rights and thereby gives certainty to in-
vestors. The riparian system does not provide such certainty, but it
does provide for some evaluation of the desirabilities of competing
uses. The disadvantages of the systems warrant reconsideration of the
basic rules governing water rights in view of the critical situations to
be expected as demands for water'increase during the next generation.
(6). The development of water resources will assist materially in
the avoidance of acute water problems. In most areas of the United
States increased supplies can be made available to areas where critical
water shortages have developed or will arise in the future. However,
this necessitates not only conservation and storage measures but also
a legal foundation for diverting water from one watershed or supply
basin to another. The riparian and prior appropriation doctrines may
prevent such solutions, since the cost of condemnation may be too
great. Nonetheless, every effort should be made to provide a supply
of water adequate for all economic needs.


I









(7). There is a substantial public interest in the development and
use of water resources. Obviously, the public has an acute interest in
having an adequate supply of water for drinking and sanitation purposes.
In addition, the public has a less tangible, but nonetheless major, in-
terest in the development of water supplies for beneficial industrial and
agricultural purposes as well as for navigation, recreation, and the
maintenance of wildlife and aquatic life. Already some of our streams
have been rendered unusable for many of these less tangible public in-
terests. Unless revised patterns of water development and use are
encouraged, it can be expected that these general interests will suffer
even more than they have in the past. Once again planning appears to
be an essential ingredient of any recommendation to revise the existing
rules of law dealing with water development and use.
(8). Any revision of the law governing water use and development
should preserve existing legal rights to the greatest possible extent
and assure adequate protection to individual water users against arbi-
trary and capricious governmental action. If planning for water de-
velopment and use is essential and if nonbeneficial uses of water should
not be permitted, it would appear that, as a legal proposition, the solu-
tion lies only in some type of governmental action. But governmental
action necessarily means regulation and control, and there is always
the possibility of unwarranted interference or arbitrary and capricious
exercise of governmental powers. These can best be avoided by pro-
viding adequate judicial review of any agency action, and it is believed
that the Model Water Use Act provides the necessary safeguards.
Nonetheless, it must be recognized that the fundamental safeguard lies
in the selection of qualified and competent personnel whenever govern-
mental agencies are involved and in the continuing reappraisal of
agency action by the interested members of the public and particularly
the legislators.


Legislative Research Center

This volume represents a departure from the previous program of
the Legislative Research Center. Prior to 1956, the Legislative Re-
search Center directed its efforts toward the preparation of the volumes
entitled "Current Trends in State Legislation," which contain a series
of monographs on recent developments in the private law. Although we
believe that "Current Trends" represents a substantial contribution
toward the improvement of private law, we encountered several prob-
lems that led to a determination to concentrate all staff efforts in a
single field of law. One problem arose out of the assignment of per-
sonnel to separate projects with the result that the scope of the









projects had to be curtailed severely in order to be within the range of
a practicable unit of work for the individual legislative analyst. Indi-
vidual projects did not afford an opportunity for an interchange of ideas
among staff members, and often the research involved frontier areas
with which neither the Director nor other faculty members had famili-
arity. In addition, the subject matter had to be confined to traditional
areas because of the difficulties posed for one individual engaging in
research involving activities of other disciplines. Another problem
arose in conjunction with the printing and dissemination of the mono-
graphs on current private law legislation. Unfortunately, printing
caused considerable delays in addition to the delays resulting from
holding manuscripts until a sufficient number were available for a vol-
ume. Moreover, we found it extremely difficult to obtain satisfactory
distribution of the private law monographs even at a price not per-
mitting full recovery of printing costs. More important, however, is
the fact that the prior approach of the Legislative Research Center did
not allow any appreciable opportunity to develop interdisciplinary re-
search activities. Therefore, the Legislative Research Center has re-
vised its program to concentrate for two years upon a single area of
the law, and the subject of water rights seemed eminently suitable for
our first experimentation.
After an initial period of purely legal research, the staff broadened
its research efforts to include materials prepared by other disciplines,
and personal contact was made with members of the other faculties of
the University of Michigan. When the first draft of the proposed Model
Act was completed, it was submitted to a group of the law faculty and
then submitted to an interdisciplinary faculty committee of the Univer-
sity representing the economics, civil engineering, public health, busi-
ness administration, and natural resources departments of the Univer-
sity. Thereafter, the proposal was submitted to a special committee
of the National Conference of Commissioners on Uniform State Laws
and to the Midwestern Conference of Flood Control and Water Resources
Commissioners. In addition, several hundred copies of the preliminary
drafts were distributed to interested persons and groups in all regions
of the United States. Finally, the proposal was carefully scrutinized by
the participants in the Conference on Water Resources and the Law held
at the Law School in September 1957.
We deeply appreciate the many helpful suggestions received from
these several persons, and we wish to express our gratitude to Joe C.
Barrett, Chairman, Special Committee on a Model Water Use Act,
Commissioners on Uniform State Laws; John Shaw Field, representing
the American Bar Association; C. E. Busby, Water Rights Specialist,
Soil Conservation Service, U. S. Department of Agriculture; Dean
Stanley G. Fontanna and Professors Earnest Boyce, Stanley A. Cain,
ix








Olin W. Blackett, Robinson G. Gregory, and Clarence J. Velz, all of
the University of Michigan; Norman Billings, Chief Hydrologist, Mich-
igan Water Resources Commission; and to Dean E. Blythe Stason,
Allan F. Smith, and the members of the Graduate and Research Com-
mittee of the University of Michigan Law School without whose full sup-
port and cooperation this project would not have been possible.
As a personal word, I wish to express publicly my sincerest thanks
to the persons who so capably carried out their research assignments
and who brought this project to a successful conclusion; namely,
Dominic B. King, Theodore E. Lauer, and Wilbert L. Ziegler, and to
Mrs. Jean Hershenov, our faithful and understanding secretary.

Ann Arbor, Michigan William J. Pierce
May 1958 Director












TABLE OF CONTENTS


Page

Preface . . . . . . v
Inherent Difference Between Water and Other Natural
Resources (Boyce) ................ ........ 1
Hydrology and Water Law: What Is Their Future Common
Ground? (Piper & Thomas) . . . 7
Legal Problems Arising from the Changing Needs, Uses,
and Availability of Water in Eastern United States
(Saville)................... ....... 25
The Adequacy of the Prior Appropriation Doctrine Today
(McCormick) ..................... 33
Water and the Law (Davis) ................... 39
Water Use Under Common Law Doctrines (Ziegler) . .. 49
Statutory Regulation of Water Resources (Ziegler) . .. 87
The Riparian Right as Property (Lauer) . . .. 131
Regulation of Water Rights Under the Police Power (King) .. 269
Interstate Compact Control of Water Resources (King) .... .353
Michigan Water Law (King, Lauer, Ziegler) . ... 423
Model Water Use Act (Leg. Res. Ctr.) . . .... 533 "
Appendix
Mississippi Conservation and Development of Water
Resources Act. ................. 589
Iowa Natural Resources Act . . ... 599
599


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