Title: Hydrology and Water Law: What is Their Future Common Ground?
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003135/00001
 Material Information
Title: Hydrology and Water Law: What is Their Future Common Ground?
Physical Description: Book
Language: English
Publisher: University of Michigan
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collections - Hydrology and Water Law: What is Their Future Common Ground?
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 3
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003135
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









HYDROLOGY AND WATER LAW: WHAT IS THEIR FUTURE
COMMON GROUND?*

Arthur M. Piper and Harold E. Thomas**


We live in an age of social and economic evolution-evolution so
deep reaching and rapid it constitutes a revolution in numerous fields
of human concern. Long-standing concepts of what is appropriate and
orderly face drastic modification if they are to survive. To this situa-
tion the principles of applied hydrology and the tenets of water law are
no exceptions. Their common ground, incomplete in the past, be-
comes tenuous when projected into the future.
To hydrologists it is common knowledge that the nation has some
trouble spots in water supply, occasioned by burgeoning population, by
standards of living that seem luxurious to other peoples if not to us,
and by a tremendously dynamic industry whose voracious thirst for
water seems insatiable. Seldom is the "trouble" a mere lack of water
in a quantity sufficient to serve all real needs; rather, water usually is
available only part of the time, at greater-than-customary cost, or
under competition among several potential uses. We can expect only
that such spots will increase in number and in geographic reach.
Applied hydrology must accept two guides for the future:
(1). The one or two cent ton of water-to be used once, pol-
luted in some degree, and then dumped on neighbors downstream
-has become a thing of the past. Water supply facilities will be-
come progressively more costly and more complex; concomitant-
ly, those who develop the facilities will want assurance that their
investments can be recovered within the life of the developments.
(2). More and more, the rational solution for water supply
stringencies will require concerted action by fairly large groups
of water users who must make mutual concessions to the common
advantage. As the stringencies become more numerous and of
greater geographic reach, the interests to be compromised will

*Approved by the Director, U. S. Geological Survey, as a contribution to a
Conference on Water Resources and the Law, University of Michigan Law
School, Ann Arbor, September,4-6, 1957.
**Respectively Division Hydrologist, Water Resources Division, and Pacific
Area Chief, Ground Water Branch, U. S. Geological Survey, Menlo Park,
California.








WATER RESOURCES


become more diverse, and the nature of the desirable compromise
may change substantially from one time to another or from one
place to another. In such circumstances, a body of water law
would be a severe handicap if it were rigid.
In essence, the common water law expresses basic equities be-
tween users or potential users of water, as conceived in preponderant
public opinion. That opinion springs from cumulative experience with
a particular hydrologic environment, so that conflicting tenets in the
common law arise from experience with different environments.
Statutory water law takes a further step in that it seeks to project those
equities to suit future conditions and all hydrologic environments in the
area covered by each statute.
Water law, whether common or statutory, seeks to define in abso-
lute terms the extent to which an individual may enjoy a right to water
or the use of water. Under the principle of legal precedent, such defi-
nition is generally inflexible and timeless. The more complex the hy-
drologic environment, the more circumscribed the right that can be
stated in absolute terms. Herein lies a prospective dilemma-the
realities of applied hydrology probably will tend toward compromise
among individual interests in water or in use of water, over wider and
wider areas, but the evolution of water law seems more likely to re-
strict than to widen the scope within which compromise will be possible.


The Hydrologic Cycle and Water Law

Man depends upon a multitude of "sources"-streams, reservoirs,
lakes, wells, springs, infiltration galleries, cisterns, the soil-for
the fresh water that he needs for his personal use, for his industries,
and for the plants and animals that furnish his food, shelter, and cloth-
ing. The ultimate source of practically all this water is precipitation,
and the "sources" mentioned will yield a perennial supply only if they
are replenished by precipitation seasonally, annually, or at longer in-
tervals.
The term hydrologicc cycle" is applied to the march of events
marking the progress of a particle of water from the atmosphere
through various environments upon or under the earth' s surface and
back to the atmosphere again. The continuity of the cycle is a basic
hydrologic principle; because of that continuity, the distinctions between
water in the several phases of the hydrologic cycle (precipitation, soil
water, ground water, surface water) are only transient at many places
and times.
Evidences of diverse action and reaction between the various








AND THE LAW 9

phases of the hydrologic cycle are numerous and widely distributed:
storage and diversion of surface water may cause waterlogging of land
at some places, but may reduce the ground water supply at other
places; pumping from wells may reduce the flood discharge of streams
at some places but stop the flow of springs and reduce the base flow of
streams at other places or times; soil conservation measures may re-
duce the net supplies of ground water or of surface water in some
areas but increase them in others; projects intended to drain surplus
surface water may also deplete the ground water supplies.
Unfortunately, not all such interplay and interrelation within the
hydrologic cycle has been generally and clearly recognized in statutes
or in court decisions pertaining to water. At least in part this may re-
flect the human tendency to isolate and contain our problems, and scale
them down to small size. The isolation of water problems has been
facilitated, of course, by the fact that disputes and problems in colonial
days and in the first century of the nation's history were few and far
between. Experts at law have contributed to isolationism by setting up
distinct "classes" of water, which have no sound scientific basis, and
by formulating unlike rules and hypotheses for each class. This
classification commonly includes:
1. Surface water in watercourses-rivers, creeks, and
natural streams in general.
2. Ground water in "defined underground streams"--limited
to the most obvious occurrences, because the burden of proof is
usually placed on the person claiming existence of this class of
water. Examples are the water in caverns or in tongues of gravel
and sand that underlie stream channels but in turn are underlain
and bordered by impermeable rock.
3. "Percolating" water-that is, all other ground water.
4. "Diffused" surface water-that is, water on the land sur-
face but not in watercourses or lakes.
5. Springs-natural discharge points for ground water, and
therefore derived from class 2 or class 3.
In defense of this legal system of classification, inherited by us
from past generations, it may be argued that the quality and usefulness
of water do not depend on the name by which it is called; also, that the
legal classes summarized above are not much more artificial than the
hydrologist's distinction between surface water and ground water: a
now-you-see-it now-you-don't distinction that can refer to the same
water molecule at different times and places. A classification com-
monly is made to suit man's convenience. He is likely to become con-
founded, however, if he assumes a separation that does not exist in
nature, or vice versa, and legislates or renders judgment on the basis
of that false assumption.








WATER RESOURCES


As one example of hydrologic fallacy in the legal classes of water,
consider "diffused" surface water-that is, water on the land surface
but not in a defined watercourse. In the humid east, diffused surface
water as a class commonly is associated with flood conditions and the
"common enemy" doctrine may prevail; each property owner may ex-
clude the invader from his land by whatever means he sees fit and
under some circumstances may damage adjoining property without li-
ability. 1 Other states invoke the "civil law" doctrine or the doctrine
of reasonable use of land, respectively. The civil law doctrine holds
that the natural flow of diffused surface water from high land to low
cannot be obstructed by the owner of the lower land. The third doc-
trine, however, would permit such obstruction if necessary in order
that a "reasonable use" of the lower land might be sustained. In these
instances the hydrologic situation is relatively simple although the legal
status seems confused.
In the semiarid west, however, "diffused" surface water may as-
sume a very different aspect. For example, in Texas it is considered
to be a part of the land on which it occurs and the property of the land-
owner. A certain code of regulations would permit a landowner to in-
tercept and use up to a specified maximum quantity of diffused surface
water. If all owners exercised this right they might, in certain sub-
basins, intercept all the diffused water and the flow in stream courses
would be reduced to the base flow. In the semiarid environment, such
water commonly does not pose a flood threat and exists only ephemeral-
ly. Most of it would soon reach a surface stream (watercourse) or
would infiltrate the land and become soil moisture and ground water.
Having reached one of these destinations, it would acquire a different
legal status. Under these circumstances a landowner may legally con-
fiscate, while it is transiently diffused, water to which he would have
no legal claim once it reached one of its natural destinations. In this
case, the law submerges hydrologic differences in a single, inflexibly
defined water class.
An opposite fallacy is involved in the treatment of water in water-
courses and that in "defined underground streams." To these two
classes the same legal rules are applied commonly. The popular con-
cept of an "underground stream," or an "underground lake," or any
other body of water in very large open spaces underground probably is
derived from knowledge of mines and caverns and possibly from Dante's
"Inferno." Open spaces so large are, however, relatively rare in na-
ture. Practically all underground water moves through small pore
spaces, rather than in channels comparable in size or nature to those

1. Callahan, Principles of water rights law in Ohio: Ohio Dept. Natural
Resources, Div. of Water, p. 16 (1957).








AND THE LAW


of surface streams. Such movement is percolation in the non-legal
sense presented by dictionary and encyclopedia, and it probably pre-
vails in a majority of instances that have been classified legally as "de-
fined underground streams." In other words, as a general rule no sci-
entific distinction can be made between the water legally classified as
"percolating" and that in a "defined underground stream." For either,
a competent hydrologist could define the boundaries (bed and banks) of
the aquifer (stream), and could trace the lines of flow with an accuracy
that would be limited only by the data available. In summary, legal
precedent applies unlike rules and nomenclature to situations that com-
monly are identical hydrologically.
The legal tenet that ground water is "percolating" water unless
proved otherwise stems from court decisions made when principles of
ground water behavior were all but unknown. It is in conflict with the
principle of continuity in the hydrologic cycle and the demonstrated in-
terrelationships between the several phases of that cycle. For con-
formity with hydrologic reality, the legal tenets ascribed to flow in
"defined underground streams" should be applied to the great majority
of ground water occurrences. As has been shown, this would reverse
legal precedent.
Our common failure to recognize and heed natural hydrologic areas
as the basis for development and regulation of water has brought us into
conflict with the principle of continuity in the hydrologic cycle. The
boundaries between nations and states have created problems in water
allocations; many of these have been resolved by treaties and compacts,
amicably but not always effectively. In some states, counties have
been specified as the units for water administration, and these are
likely to create similar problems. Although such political boundaries
may be far less than ideal for purposes of water regulation, we realize
that they were not established primarily for that purpose, and we en-
deavor to reach a reasonable solution within the limits prescribed for
the problem. But many districts formed primarily for water develop-
ment or control-including irrigation districts, drainage districts,
reclamation projects, ground water districts-have area boundaries
unrelated to hydrologic reality. Many instances could be cited where
the regulation of water has been ineffective because part of the water
was beyond the jurisdiction of the responsible agency.


The Hydrologic Equation and Water Law

The hydrologicc equation," an expression of the law of conserva-
tion of mass, states simply that for any specified area and interval of
time, the total inflow of water must equal the total outflow, with proper








WATER RESOURCES


correction for changes of storage within the area. For most natural
hydrologic units, precipitation is the dominant source of inflow, and
climatic fluctuations are such as to assure fluctuations of that inflow
with time, and consequent fluctuations of the outflow or of the volume
in storage, or both. All of us have seen enough of water to take these
fluctuations for granted and to recognize the cause and effect relation-
ships between storms and floods, droughts and water shortages.
A corollary of the hydrologic equation is that any water withdrawn
for use must result in a corresponding reduction either in outflow or in
the volume of stored water. In other words, if use is permitted, a re-
duction in outflow or in storage must be accepted. This precept has
not been accepted in all water law.
In surface reservoirs it is standard practice to store water when
there is a surplus in the stream and to draw upon the reservoir storage
when the natural inflow is insufficient to satisfy the established uses.
Ground water occurs in natural reservoirs, to which the same princi-
ples apply just as logically. If these natural reservoirs are to be
regulated as are surface reservoirs, they should store water-and water
levels should rise-during the principal recharge season of each year;
also, the general trend of water levels and storage should be upward
during a series of wet years. Conversely, water levels should drop
and storage should diminish during the season of greatest withdrawal
each year, and the trend should be downward during a series of dry
years.
The hydrologic concept of ground water reservoirs is that nature
maintains an essential balance between recharge and discharge; as the
rate of recharge rises or falls, the storage in the reservoir increases
or decreases until the natural discharge (by springs, evapotranspira-
tion, seepage to streams, and perhaps flow to other aquifers) again
balances the recharge. Every modification by man to develop and use
water necessarily induces changes toward a new equilibrium on the
part of nature. The water produced by wells is not "new" water, but
merely water that has been diverted from its natural course. If a well
had not taken the water, it would have been discharged naturally into a
stream or a spring, or dissipated by evaporation from areas of high
water table or by transpiration of native vegetation. The taking of
ground water through wells is comparable to the diversion of surface
water from streams, except that it is easier to trace the course the
stream water would have followed if it had not been diverted. It is a
necessary corollary that every well must be expected to modify the
natural movement of ground water-it may reduce the quantity of water
available to salt grass, or greasewood, or willow, or to a shallow
water area subject to evaporation; it may reduce the flow of a spring,
or the discharge of a stream fed in part by ground water; it may also








AND THE LAW


diminish the yield of other wells in the vicinity by lowering the ground
water level.
In areas where ground water development is intensive, a common
objective of applied hydrology and water management is to achieve a
balance between the long-term outflow (including the withdrawals for
use) and long-term average inflow. In some areas an approximate bal-
ance has been achieved. Such a balance can be upset, however, if
water rights are defined on the basis of the original or maximum with-
drawal from each well, rather than on the basis of the withdrawal at a
time when inflow and outflow are in essential balance. Subsequent to
the initial period of maximum withdrawal, the storage in a natural
reservoir and the outflow therefrom may change substantially, in
response both to climatic fluctuations and to human activities. The
resultant equilibrium thus might be far different from that in the initial
period.
On the other hand, many water users believe that ground water law
should involve a guarantee of pressure in flowing wells and of a certain
water level in pumped wells. In other words, the manner of diversion
should be a basic part of a water right; this sentiment is supported by
court decisions in some states. Such a guarantee, however, may nulli-
fy the value of a ground water reservoir for storing water, just as a
guaranteed constant level in a surface reservoir would make that
reservoir no more effective than a wide place in an unregulated stream.
As already pointed out, effective reservoir operation for storage, for
ground water as well as for surface water, requires that the reservoir
be filled in times of surplus, and then drawn down to meet water needs
in times when the inflow is at a minimum. An administrator could
maintain constant water levels in wells only by restricting the with-
drawals from the reservoir during periods when the need for water is
greatest.
With respect to a surface reservoir, water rights generally apply
only to a specific quantity or rate of flow of water, there being no re-
quirement as to the part of the reservoir where such water must be
stored. If ground water rights were comparable, they would apply only-
to a specified amount of water, leaving to the holder of the right the
responsibility for diverting that water from the reservoir by the most
practical means-springs, base flow, flowing wells, shallow pumped
wells, deep wells, or subirrigation of crops--but with no guarantee
that any particular method of diversion could be used forever. Even
though a ground water right is solely to a specified amount of water
from an underground reservoir, the state nevertheless might reason-
ably require each person to develop his supplies with the least possible
adverse effect upon previously developed supplies. Some wells today
interfere unnecessarily with prior developments-an interference that


i I








WATER RESOURCES


could have been avoided or greatly reduced if the well owner had had
expert advice as to the location and depth to drill his well.
Maintenance of a constant volume in storage-with the corollary
that the outflow (including withdrawals for use) must fluctuate with the
varying inflow-does not in general meet our requirements for a stable
maximum supply, but many instances can be cited where it would be
desirable for society. Constant levels in lakes or channels are desir-
able for recreational areas, power, and navigation in many localities.
Similarly for ground water, the public might best be served by main-
taining conditions conducive to spring discharge, subirrigation, or
flowing of artesian wells, particularly if the alternative is a different
use of the same water with no more beneficial use of the total resource.
Here the misuse of general hydrologic principles would be in applying
statutes or "leading decisions" indiscriminately throughout a state with-
out regard to the special hydrologic conditions and objectives in each
area of water use.


Hydrologic Environments and the Basic Doctrines
of Water Law

In simplest terms, doubtless oversimplified, the United States
spans two unlike hydrologic environments in which unlike basic doc-
trines of water law have evolved. These are the humid east with its
common law or riparian doctrine and the arid and semiarid west in
which the doctrine of prior appropriation has developed, either ex-
clusively or in conjunction with the riparian doctrine.
The two environments adjoin one another approximately along the
97th meridian. To the east lie the thirty-one states of the humid and
subhumid east. There, as pointed out by Thornthwaite, 2 precipitation
as a rule is greater than the potential evapotranspiration-that is,
greater than the potential rate at which the sun can pull water into the
atmosphere from free water surfaces and through the leaves of vegeta-
tion. ,There, in general, precipitation is more than that necessary to
sustain agriculture, and ordinarily the water surplus would more than
suffice for the consumptive needs of man and animals in a simple
agricultural economy.
To the west lie the seventeen states of the arid and semiarid west.
There, as a rule, average precipitation is less than potential evapo-
transpiration. There, accordingly, the over-all water supply is
perennially insufficient for growing crops on all the land otherwise

2. Thornthwaite, "An Approach Toward a Rational Classification of Climate,"
38 Geographical Rev. 55 (1948).








AND THE LAW


arable. Within these seventeen western states, however, there are
scattered areas of perennial water surplus-chiefly along the north
Pacific coast and high in the mountain ranges. These areas of surplus
dominate the water supply situation because commonly they are tapped
to alleviate water deficiencies in the arid lowlands.

Riparian Doctrine
The United States has been peopled largely by migrates from humid
regions, chiefly in Europe. These people, accustomed in their home-
lands to a relatively simple economy based on a relative abundance of
water, found a familiar environment in the eastern half of the United
States: precipitation during the growing season ordinarily sufficient
for crops, and a closely woven network of perennial streams carrying
surplus water across the land to the ocean. To this familiar hydro-
logic environment, and to the simple agriculture that prevailed in the
era of colonization, the common water law of the homeland was direct-
ly applicable.
In essence this common law-the riparian doctrine-postulates that
the right to use water is a property attached to and inherent in the land,
with exclusive ownership of that right resting in the landowner. In the
original sense of the doctrine, an owner of land that spans or is con-
tiguous to a watercourse is entitled to have the stream flow through or
by his land, essentially undiminished in quantity and unimpaired in
quality; he may make whatever "natural" use of the water he desires,
and he does not forfeit those rights by failure to use them. The so-
called natural uses are those necessary to life on the riparian land to
meet domestic and culinary requirements and to water domestic ani-
mals. If such uses were sufficiently large, a riparian owner could
legally intercept the total flow of a stream, and another riparian owner
downstream would have no clear basis for redress.
In respect to ground water, a landowner has "riparian" title to any
that underlies his land. In the original sense of the riparian doctrine,
he can withdrawn whatever quantity of that water he wishes, for any
purpose, without regard to possible effects on a neighbor.
There is an obvious hydrologic fallacy in the riparian doctrine.
Specifically, exclusive and unlimited right to use water, attached to
specific parcels of land, can be real only if the water does not move
laterally. In streams the water moves obviously-from the jurisdic-
tion of one riparian owner to that of another. Beneath the land surface,
most ground water moves just as definitely, though slowly. The fallacy
is not of serious consequence in the environment from which the
riparian doctrine sprang-a humid climate coupled with a simple agri-
cultural economy. Under those conditions the over-all surplus in








WATER RESOURCES


precipitation ordinarily assures that the limited water supply require-
ments are met in full.
The theoretical right of unlimited water use under the riparian
doctrine becomes a figment in urban or metropolitan areas; under in-
tensive agricultural development through irrigation (which is expanding
steadily even in the humid east); or under an industrial economy. Even
under a humid environment, large demands for water at the places of
concentrated use may become mutually exclusive or may drastically
curtail the supply available to riparian users downstream. According-
ly, in the evolution of the common water law certain variants of the
riparian doctrine have become established to various degrees in cer-
tain of the states. The principal variants are outlined below.
Principle of Reasonable Use. -Numerous court decisions have es-
tablished the principle that "unnatural" uses of water under a riparian
right must be reasonable in amount and in kind. This so-called Ameri-
can doctrine, or doctrine of reasonable use, places a transient re-
striction on the earliest riparian owners who might initiate a large use
for a purpose other than natural-that is, for a use beyond sustaining
life on the riparian lands. However, because "reasonable" becomes
in time more or less synonomous with "ordinary," the mild restraint
inherent in this doctrine fails as soon as a substantial number of
riparian owners begin using water for a common unnatural use. In the
end, the doctrine may accelerate rather than prevent competitive use
under which the total water supply might in effect be confiscated by a
few large riparian owners.
Mild as it is, the restraint of the reasonable use doctrine has not
been applied in all the states. For example, in a recent Wisconsin
case3 the court pointed out that the 1903 decision of Huber v. Merkel4
is still the general law of the state as to percolating waters. The
Wisconsin Supreme Court in the Huber case stated:

...[I]t seems clear that it must be held that the appellant had
a clear right at common law, resulting from his ownership of
land, to sink a well thereon, and use the water therefrom as
he chose, or allow it to flow away, regardless of the effect of
such use upon his neighbors' wells, and that such right is not
affected by malicious intent.5

Principle of Correlative Rights. -A further stage in evolution of
the riparian doctrine holds, in essence, that all the riparian owners

3. City of Fond du Lac v. Town of Empire, 273 Wis. 333, 77 N.W. 2d
699 (1956).
4. 117 Wis. 355, 94 N.W. 354 (1903).
5. Id. at 363.








AND THE LAW


in a given basin enjoy the total water supply of that basin in common
and, in a time of water shortage, should share proportionately in that
total supply. This principle has been applied primarily to ground
waters. It faces up to the reality that water supplies are finite in vol-
ume. Apportionment of a total supply is reasonably straightforward if
all the riparian owners use water in the same way, as for irrigation.
Complexities arise wherever unlike uses are involved.
Principle of Prescriptive Rights. -The principle of prescriptive
rights is little more than an acknowledgment that conflict of interests
in water can become so involved as to preclude a straightforward solu-
tion under the riparian doctrine. It is not based on any hydrologic
principle and works to intensify competition in the development of water.
Under the principle, an "adverse" use of water that is maintained
"openly and notoriously" for a sufficient term of years acquires a legal
status equal to that of other uses in the same basin. Thus, a riparian
right that is not used can be lost to or impaired by an adverse use up-
stream. The term of adverse use required to establish a prescriptive
right is determined by an applicable statute of limitations; the term
varies greatly from one state to another.
Administrative Control of Waters under the Riparian Doctrine. -
As the riparian doctrine is based on property rights in use of water,
the states in which that doctrine prevails can exercise administrative
control of waters only under their police powers to preserve the "public
welfare, safety, and health." The extent of such control varies widely
among the states. Some, but not all of the controls are based on or
seek to apply hydrologic principles. New Jersey probably has gone
farthest in its effort to limit ground water withdrawals to perennial
yield, as in the vicinity of Atlantic City. In that state, control is ex-
ercised through a system of term licenses that are issued to users and
that have many of the effects of the appropriation doctrine (which will
be outlined). Licenses are renewable if the Division of Water Policy
and Supply determines the total water supply remains adequate. How-
ever, because the licenses do not run indefinitely, at least one manu-
facturer declined to locate a new plant in the state.
The Riparian Doctrine in Summary. -Among the thirty-one states
that constitute the humid eastern half of the United States, the riparian
doctrine prevails in all except Minnesota and Mississippi. 6 As of

6. In 1957 Iowa by similar legislation effected a substantial change in its
common law regulation of surface and ground waters. See Iowa Code
Ann. c. 455A as amended by Iowa Laws 1957, c. 229. F9r a discus-
sion of the various state statutes controlling water uise, see: Ziegler,
"Statutory Regulation of Water Resources," infra.








WATER RESOURCES


July 1, 1937, Minnesota abrogated the riparian doctrine and adopted the
doctrine of appropriation for both surface waters and ground waters,
excepting domestic uses serving less than twenty-six persons, uses for
purposes originating within the geographic boundaries of municipalities,
or prior beneficial uses. In 1956 Mississippi similarly adopted the
doctrine of appropriation, but in respect to surface waters only.
In recent years, several other eastern states have examined their
water policies and water laws rather critically, to appraise their ade-
quacy and hydrologic reality in respect to ever mounting demands for
water. These include Delaware, Georgia, Kentucky, Maryland, Michi-
gan, Ohio, South Carolina, and Tennessee. Among these examinations,
that by the Water Policy Committee of South Carolina succinctly ex-
presses a common appraisal in these words:

It is only with the overdevelopment of a stream or other
water supply or its curtailment by drought that we realize how
outmoded and inequitable our water law has become. It is out-
moded in that it recognizes only "domestic uses" of 150 years
ago. It is inequitable both to riparian owners and to the peo-
ple of South Carolina as a whole. As each riparian owner who
in the past may not have used his water takes even his small
share, he reduces the amount for all riparian owners in com-
mon. Thus, a riparian owner who early has invested in equip-
ment to use water sees his investment reduced in value as his
equipment. operates at less and less of its capacity. As an
owner in common he has a valuable right; as an individual own-
er he has a right that decreases in value as it is used in com-
mon.

The State as a whole also loses. Under present laws
there is little that can be done to prevent a needless amount of
our water wealth flowing unused into the ocean. Under modern
conditions the riparian doctrine imposes a second injustice on
the peoples of South Carolina. Under strict interpretation the
riparian doctrine gives use of water only to those owning land
bordering the watercourse. Others in the State can use the
water only by grant of the riparian owner, by legislative grant
or by prescription-adverse use for the time required by law
to convert the use into a right. The people of South Carolina
as a whole are restricted in their enjoyment of an important
resource even though the State holds final title to it.7

Doctrine of Prior Appropriation
In the semiarid to arid climate that prevails over the seventeen
western states, the riparian doctrine would be unreal. Some parts of

7. South Carolina Water Policy Committee, A new water policy for South
Carolina, Report to General Assembly, p. 30 (1954).








AND THE LAW 19

these states receive enough precipitation to grow grasses and grains;
these areas have developed in dry farming, especially of wheat. Over
the west as a whole, however, arable lands receive entirely too little
precipitation for crops; commonly they are remote from sources of ir-
rigation water and are more extensive than could be served by the total
water supply. Thus, agriculture is successful only where, and to the
extent that, water is available for irrigation. This general deficiency
of water is aggravated by the water demands of expanding urban areas
and industry.
The doctrine of prior appropriation evolved under and conforms to
the realities of this climatic environment. In brief the doctrine holds
that title to all water rests in the state or the "public," that individuals
can appropriate water for beneficial use, that as between appropriators
"the first in time is the first in right," that the right of water use is
forfeited after a statutory period of nonuse, but that the right is neither
contingent on nor proportional to landownership. Appropriations are
recorded under a system of applications and permits under state or
county agencies.
The appropriation doctrine is absolute in respect to surface waters
in seven of the western states-Idaho, Montana, Wyoming, Nevada,
Utah, Colorado, and New Mexico. These form a continuous belt span-
ning both flanks of the Continental Divide from the Canadian boundary
to the Mexican. By implication the doctrine is also absolute in respect
to the ground waters of those states, although specific legislation to
that effect has not been enacted in all.
Three of the western states-Arizona, Kansas, and Oregon-have
adopted the appropriation doctrine as their primary water law but, in
so doing, have recognized "vested" riparian rights to the extent of
prior beneficial use of water under those rights. Also, these "vested"
rights were made subject to forfeiture after a statutory period of non-
use. In 1955 Oregon adopted a comprehensive statewide ground water
code which is based on, but embodies a highly significant departure
from, the appropriation doctrine. Arizona lacks a comprehensive
ground water code.
In the remaining western states-Washington and California along
the Pacific coast and North Dakota, South Dakota, Nebraska, Okla-
homa, and Texas to the east of the Continental Divide-both the
riparian and the appropriation doctrines are in effect currently. Space
in this paper does not suffice to review the many ramifications in ap-
plication of two doctrines to regulating water development and use. In
some respects Texas is in the most complex situation, in that it fol-
lows three uncoordinated doctrines for three "classes" of water. 8

8. "Survey of water rights by States," 6 Irrigation Engineering and Main-
tenance 50 (August, 1956).








WATER RESOURCES


Surface waters, or those in watercourses, are regulated by both the
riparian and appropriation doctrines, concurrently. "Diffused" sur-
face water, or that not in a recognized watercourse, belongs to the
person on whose land it exists. Ground water, where regulated at all,
is regulated by conservancy districts under the riparian doctrine, with
some concessions to the principles of reasonable use and of correlative
rights.
Limitations of the Appropriation Doctrine. -When it applies ex-
clusively, the appropriation doctrine affords an obvious and practicable
mechanism for curtailing the use of water from streams or lakes when-
ever such development overtakes total supply. Adequate records of the
valid appropriations and of streamflow are required, of course, but
usually these records are available or can be developed without undue
delay for an adjudication.
In the area of the appropriation doctrine, water legislation has
grown and developed throughout the history of utilization of the water
resources. Rather generally, the waters first used for irrigation were
from streams, and surface water disputes were already raging when
ground water development was still practically nonexistent. Surface
water legislation resulted from obvious and immediate needs, and gen-
erally many years elapsed before statutes pertaining to ground water
were enacted. As a result, surface and ground water rights are com-
monly recorded and administered separately, although in many states
under the supervision of the same official-commonly the state engi-
neer. These conditions create some problems in regard to rights in
interconnected supplies of surface and ground water. States that have
adopted a single doctrine of water rights can resolve such problems
fairly readily.
The difficulties are increased markedly if, within a single state,
the appropriation and riparian doctrines apply concurrently. In some
states, for example, surface water is considered as a public supply
subject to appropriation, whereas ground water is recognized as ap-
purtenant to the land and therefore privately owned. As pointed out
by Hutchins:
Correlation of rights is not feasible in a State which, for
example, recognizes exclusive appropriation rights in surface
streams, and rights of absolute ownership of percolating waters.
Even if such percolating waters are conclusively proved to be
physically tributary to a surface stream, the stream appropri-
ator obviously can have no legal claim on them if they are held
to be the absolute property of the overlying owner.9

9. Hutchins, "Legal Aspects of the Ground-Water Problems," Pacific South-
west Inter-agency Committee, minutes of 56-1 meeting, Attachment B,
9p (1956).








AND THE LAW


In respect to ground water, exclusive application of the appropria-
tion doctrine would seem to offer the same mechanism for scaling use
to supply; in actuality, however, the mechanism is far from effective.
Reasons include the following:
1. When the natural regimen of a ground water body is changed
by withdrawal or other act of man, commonly the effects are ob-
scure and develop over a long interval.
2. Extensive hydrologic records and investigations are pre-
requisite to monitoring the behavior of a ground water body under
use. For few areas and for no state as a whole are such records
and results of investigation available. Consequently, overdraft
commonly escapes recognition while it is small.
3. Under most existing ground water codes, incipient or
actual overdraft would invoke the declaration of a "restricted use"
or "critical" area and the prohibition or restriction of additional
wells or increased withdrawals. Such prohibition or restriction
may be futile; development would be checked, but not necessarily
its adverse effects.
4. The causes and effects of ground water overdraft are not
reversible immediately or fully. Consequently, cutting off with-
drawals in the reverse order of their priorities of appropriation
does not assure that the effects of development will be retraced.
Under these circumstances, here stated all too briefly, responsi-
ble officials very commonly are reluctant to invoke statutory pro-
visions, under the appropriation doctrine, for reducing use of
ground water. They may have either of two reasonable doubts:
that the available facts would suffice to sustain the administrator
in any appeal from his order for reduction, or that the statutory
procedure would in fact recapture the status of the earlier appro-
priators.
New Mexico has had the longest experience under statutes applying
the appropriation doctrine to both surface water and ground water.
Four cases from that experience are enlightening, as follows:10
1. Under native conditions, certain large springs in the northern
part of the Roswell Basin acted as natural relief valves to the artesian
basin. The water from these springs was quickly appropriated by
early settlers. Owing to subsequent intensive development of the
ground water supply by wells, the artesian head has so decreased that
the flow from individual spring orifices either has ceased or has

10. Bliss, "Administration of the Ground Water Law of New Mexico," 43 Am.
Water Works Assn. J. 435 (1951).








22 WATER RESOURCES

diminished greatly. Thus, certain holders of the earliest surface water
rights in the basin have abandoned their developments.
The artesian basin having been developed excessively, it has been
closed to further appropriation by the state engineer. Under this ac-
tion, however, holders of the depreciated surface water rights are
precluded from obtaining relief by tapping the ground water body that
sustained those rights under natural conditions. In this instance, ap-
plicable law treats surface water and ground water as though they af-
forded distinct and separable sources of supply. Actually, as has been
suggested, the separation is fanciful.
2. The Pecos River Compact, which governs the allocation of
stream waters between New Mexico and Texas, provides that: ". New
Mexico shall not deplete by man's activities the flow of the Pecos River
at the New Mexico-Texas state line below an amount which will give to
Texas a quantity of water equivalent to that available to Texas under
the 1947 condition. "11 "In maintaining the flows at the New Mexico-
Texas state line required by this Compact, New Mexico shall in all in-
stances apply the principle of prior appropriation within New Mexico. "12
These terms pose a prospective dilemma as developed in the following
paragraph.
A considerable part of the base flow in the Pecos River was de-
rived, under native conditions, from the artesian and unconfined
ground water bodies of the Roswell Basin. The ground water develop-
ments that have been cited, however, have greatly diminished this
base flow, and their ultimate effect on the flow of the river will not be
evident for many years to come. The ultimate effect may be so great
that the flow at the state line is diminished, "by man's activities," to
less than that of 1947. In this situation, suspending the junior surface
water appropriations probably would be ineffective because in large
part they do not involve base flow. Suspending the true junior rights,
those in ground water sources, would in theory affect the river flow
and ultimately might satisfy the terms of the compact. However, this
remedy would take effect over a long term and would not offer an im-
mediate solution.
3. In an irrigated area, ground water development tends to con-
centrate around the most productive wells and the most productive
lands. Consequently, some parts of a particular ground water source
may become overappropriated while other parts, with less desirable
lands or smaller yields of water, are virtually untouched. In the
northern part of the Mimbres Valley, for example, the ground water


11. 63 Stat. 159, 161 (1949).
12. Id. at 164.








AND THE LAW


supply has been fully appropriated in the vicinity of Deming. In the
southern part of that.basin, however, considerable additional draft
might be dispersed over an extensive area with little detriment to prior
appropriators to the north. At one time the state engineer permitted
no further appropriations in certain areas of the basin, the boundaries
of those areas having been fixed somewhat arbitrarily, of necessity.
This approach proved unsatisfactory, especially near the boundaries of
the designated areas. In consequence, the entire basin has been closed
to further development. As of 1951, the state engineer had not de-
veloped an acceptable formula under which continued appropriations
might be permitted in areas of light development even while they were
denied in adjacent areas of optimum development.
4. One section of the New Mexico statute provides that the state
engineer shall determine where public waters are available for appro-
priation. It was under this section that authority had been assumed for
closing a basin either in part or in whole. However, a basic question
has been raised: does the state engineer have authority to make such
determinations for whole basins or parts of basins, or must each appli-
cation for a new appropriation be assessed on the merit of its individual
situation?


Trends in Water Management

Ideally, water law would define the rights and obligations of indi-
viduals in respect to use of water, provide for necessary regulation by
states or other appropriate jurisdictions, and yet allow reasonable
flexibility whereunder the nation as a whole might effectively manage
its water destiny. As was pointed out or implied in preceding pages,
current water law embodies some fallacies and numerous inconsistencies
from one state to another. To hydrologists the current law seems a
confused and confounding basis on which to attempt resolving water
problems of the future.
To the nation's tremendously dynamic industry, not even the humid
east can offer, into the indefinite future, an over-all surplus in water
supplies. In the arid and semiarid west the prospective imbalance be-
tween water supply and water demand is greater.. As a whole the nation
must use its water supplies more and more effectively as time goes
on-providing artificial storage to smooth out nature's fluctuating sup-
ply; reclaiming waters polluted by domestic or industrial wastes and
those naturally of inferior quality; and allocating available supplies to
the greatest over-all advantage. The total water supply-on the land
surface in streams and lakes, in the aerated zone of soil water, and in










the saturated zone of ground water-must be managed collectively as a
single resource serving a single aggregate need.
In the introduction to this paper it was stated that the rational solu-
tion for foreseeable water supply stringencies will lie in concerted ac-
tion by fairly large groups of water users, making mutual concessions
to the common advantage; also that the nature of the desirable com-
promise may change substantially from one time to another or from
one place to another. The writers believe that the following concepts
are emerging in the areas of greatest pressure on water supplies:
1. An individual's claim to exclusive jurisdiction over any
particular amount of water, to be used as he sees fit and then dis-
carded, will come to be viewed as a caprice of history. The
riparian doctrine, with its concept of absolute property rights in
water, will become obsolete.
2. One principle of the appropriation doctrine-that owner-
ship of all water supplies rests in the "public," collectively-will
become widely accepted. Other principles of the doctrine will be
modified in general opinion-appropriations of water will become
contingent on a use which returns the greatest potential advantage
to the "public" at that particular time and place; and the dogma of
"the first in time is the first in right" will be softened to some-
thing less than an absolute priority without regard to the manner
of water use. In other words, the appropriation doctrine will be-
come coupled to the police power of the state, to the end of opti-
mum advantage to the general public welfare. A first step in this
direction has been taken in the ground water code adopted in 1955
by Oregon.
3. Water sources and reservoir sites on the land surface and
water sources and natural reservoirs beneath the land surface will
come to be managed as a single supply, for allocation among all
needs. In this situation, only an agency of the utility type, either
an arm of government or functioning under governmental license,
would appear to have the necessary broad- competence.
Following are the challenges posed by foreseeable trends in the
water supply field: to the hydrologist, that he acquire and adequately
interpret the large body of water facts required by the nation for pru-
dent and effective management of its water destiny; to the specialist in
law, that he shape a body of water law fostering and permitting such
management, under adequate and appropriate checks and balances.
Only by meeting these challenges in substantial measure will hydrology
and water law find a wide common ground in the future.




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