Title: Legal Problems Arising From The Changing Needs, Uses and Availability of Water In Eastern United States
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Title: Legal Problems Arising From The Changing Needs, Uses and Availability of Water In Eastern United States
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Language: English
Publisher: University of Michigan
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collections - Legal Problems Arising From The Changing Needs, Uses and Availability of Water In Eastern United States
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003136
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LEGALPROBLEMS ARISING FROM THE CHANGING NEEDS,
USES, AND AVAILABILITY OF WATER
IN EASTERN UNITED STATES*

Thorndike Saville**


Since the program for the Conference leads up to a final considera-
tion of a model state act, it is assumed that the discussion assigned for
this session should deal chiefly with those legal aspects which are with-
in the power of the state to administer. Nonetheless, it is desirable at
the outset to point out that water on and under the surface of the earth
is no respecter of state boundaries. Increasing competition for water
for a great variety of uses involves major problems not only of state
concern, but having important interstate, national, and international
aspects. Any state agency which undertakes to exercise comprehensive
water resources conservation and control has a most formidable task,
not only from the innate complexity of the problems involved, but from
possible conflicts of jurisdiction with existing state agencies endowed
with legal authority, and a necessary regard for the jurisdiction of
extra-state agencies at various levels of government.
In attempting to set forth some of the legal problems involved, it
may be useful to classify the major uses of water more or less in order
of their influence on man, as follows:
1. Atmospheric moisture indispensable to organic life
2. Drinking water for man
3. Water used in agriculture and animal husbandry
4. Water as the habitat of fish and sea food
5. Water used for power generation
6. Water used for mechanical and chemical processes in industry
7. Water as a medium of transportation
8. Water as a moderator of climate, including air conditioning
9. Water in its effect upon human settlement, especially the loca-
tion of cities
10. Water as a medium for the removal and purification of wastes
11. Water as a recreational asset


*Paper presented at the Conference on Water Resources and the Law, Uni-
versity of Michigan Law School, September 4-6, 1957.
**Dean (ret.), College of Engineering, New York University.








WATER RESOURCES


12. Water as a determinant of political boundaries
13. Water used as ice
These are the major beneficial uses of water, but there are also
hazards from water which enter into its conservation and control as
follows:
1. Loss of life, property damage, and impairment of navigation
from floods and storm waves
2. Erosion of upland and coasts
3. Menace to public health, as from disease bearing insects
breeding in water
A cursory examination of these lists indicates that (1) certain of
the uses of water will be in conflict with others if there is insufficient
water available to meet all uses desired, and (2) the useful water sup-
ply may be increased by the amelioration or prevention of some of the
hazards. Therefore, the most effective administration of the water
resources of a state or region requires some form of agency which,
after consideration of the beneficial uses and hazards to life and
property, may invoke the power of the state to conserve, allocate, and
control its water resources in the interest of all the people.
The eastern states are blessed with a relative abundance of water,
including inland fresh water, brackish water in swamps and estuaries,
and salt water along the coasts. (In much of the area, and particularly
in the insolidated deposits of the coastal plain, ground water resources
are substantial.) But the pressures of population growth and industrial
development, coupled with increasing demands for the amenities which
require water, such as air conditioning and recreation, have imposed
such requirements upon the available supply that the time has been
reached in some instances, is at hand in others, and will shortly be
evident generally where water uses must be rationed. This term
"rationed" is one which no one likes; "beneficial use" is much more
acceptable-but in the last analysis "rationed" is what must be done in
fairness to all, with an article when the demand exceeds the supply.
In a leading case in the east, determined by the Supreme Court of the
United States, Justice Holmes stated in 1931 that "A river is more
than an amenity, it is a treasure. It offers a necessity of life that
must be rationed among those who have power over it. "1 The Court in
this and other cases has called this the doctrine of "equitable appor-
tionment. It is still rationing, and although applied by this court to
an interstate stream, it should be a guiding principle, by whatever
name called, in waters under the administration of a state.

1. New Jersey v. New York, 283 U.S. 336, 342, 51 S. Ct. 478 (1931).








AND THE LAW


The legal implications of the requirement that most of our waters
must be subject to regulation in the public interest are many, whether
flowing in water courses, stored in surface reservoirs or ponds, mov-
ing or stored below ground subject to tidal influences in our estuaries
and bays, or touching our shores.
The "riparian" rights and "prior appropriation" rights to surface
water, and the "absolute" rights to underground waters are, and by the
courts have been determined to be, subject to broad interpretations
which may restrict the owner from unlimited use of these rights when
legally found to be adverse to the public interest. There are numerous
reports on these subjects made during the last few years by several
agencies authorized by the legislatures of various states, and by at
least one private foundation. No exposition of the subject seems neces-
sary here. Rather it may be useful to consider the legal and adminis-
trative difficulties arising out of some of the conflicting or competing
uses of water and their causes.
1. Public Water Supply versus Recreation. In the east many public
water supplies are taken in part from impounding reservoirs. The
public health authorities may prohibit bathing, boating, or fishing in
such reservoirs, as is their legal right. The state agency charged with
promoting recreation (public forests, parks, lakes, etc.) may be em-
powered to issue licenses for all of these recreational purposes. Gen-
erally the public health authorities have the last word, but in view of
modern, methods of protecting the safety of a public water supply, and
the increasing consideration to domestic water supply storage in mul-
tiple-purpose reservoirs, the old laws may have to be revised.
2. Relative Priorities in Multiple-Purpose River Development. It
is generally acknowledged that such development is one of the best
means of conserving and controlling surface waters. For flood control
a reservoir should be drawn down to a point sufficient to impound large
amounts of flood waters, thus impeding its most effective use for
domestic water supply, power production, and recreation in various
forms. The regulated flow from the reservoir may affect the stream
below, even to an estuary, involving recreation, fish and wildlife,
shellfish, salt intrusion, navigation, stream pollution, industrial water
use, etc. Numerous state agencies will be legally charged with regu-
lating these and other elements of water use.
3. Upstream Flood Control and Soil Conservation Programs. On
the headwaters of a stream it is planned to construct many farm ponds
in the interest of agriculture. A state agency is legally responsible
for administering such a program, frequently financed chiefly by the
federal government. Will the benefits to the farmer be outweighed by


I








WATER RESOURCES


damage to the general public from a decrease in stream flow consequent
upon evaporation from the ponds, or consumptive uses from them? Or
may the changed conditions of run-off (including possible destruction of
some water impounding structures) following a large storm increase
rather than decrease flood heights and sediment deposits downstream?
To what extent will improved soil practices increase or decrease run-
off in the lower portions of the waterway? Should an agency charged
primarily with small dam construction and soil conservation practices
for agricultural benefits, have sole authority to determine the most
beneficial measures of water conservation and control from the stand-
point of the public at large?
4. Ground Water Problems. The "mining" of ground water, that is,
the depletion of ground water storage accumulated over many years,
has resulted in permanent lowering of the ground water level in many
places. These waters are used for many purposes, domestic, indus-
trial, and irrigation. Encroachment of salt water has occurred along
the coasts. State agencies have acted to regulate the amount of water
withdrawn and to require return of unpolluted water to the ground after
use. In certain sections of the country the injection of large quantities
of fresh surface water underground into oil bearing formations has been
practiced in connection with oil recovery. The possibility of injection
of sewage treatment plant effluent into ground water aquifiers is men-
tioned subsequently. All of these ground water uses and practices have
legal implications and conflicts of jurisdiction by state and other
agencies.
The water problems of the eastern part of the United States are be-
coming acute due to four major factors:
1. The increase in population, requiring more water for domestic
use. The per capital use is also increasing due to greater demand for
baths and fixtures; to air conditioning of homes, stores, and offices;
and to increased use on lawns, home gardens, etc.
2. The increased demand for electric power, a major part of which
is produced by thermal energy, requiring vast quantities of cooling
water. Cooling water is also required in large amounts by many manu-
facturing plants. The general quality of the water need not be impaired
and it may be returned to the stream from which it was taken, but the
temperature of the stream will be increased, often substantially, and
thus impaired for industrial use below. Industry frequently selects a
site because of the temperature of the available water supply.
3. The almost fantastic amounts of water required by the newer
chemical processes which have had such phenomenal growth in recent
years. Illustrative of this are the following figures for gallons of water
per ton of product: steel and sulphite pulp, 64, 000; finished paper,








AND THE LAW 29

39,000; viscose rayon, 200,000; cane sugar, 1,000; and soap, 500.
Oil refineries require 770 gallons of water for every forty-two gallons
(barrel) of product. Even with every provision for re-use of this water
in a plant, vast quantities are required. Moreover, the water needed
must be of reasonably good quality, and is usually discharged with im-
paired quality.
4. The increasing use of irrigation of crops in the east, which has
had marked development in the past decade, and is still growing. The
much greater crop yield experienced from improved farm practices
such as soil conservation and fertilizers is ultimately dependent on
more water. In a corn-growing area in New York state some 900,000
gallons of water per acre are required for a good crop. Of this,
600,000 gallons may be received from rainfall and soil moisture. The
remainder, or 300,000 gallons per acre must come from supplemental
irrigation. Farm ponds and wells are the favorite sources of such
water. Most of it is consumed. The regulation of water used in agri-
culture in the east poses some new and important legal problems.
The cumulative effect of the increasing uses of water described
above is obvious. The effect upon water left for the other uses
enumerated at the beginning of this paper becomes serious. One of the
corollary problems is the increase in spent water, domestic sewage,
and industrial wastes which must be taken care of. The re-use of such
water must receive more attention. One promising factor in re-use is
the injection of treated sewage into appropriate underground formations.
It can at least assist in forming barriers against the intrusion of salt
water into depleted ground water reservoirs, and at best can furnish
additional water supply. Many cities take water from rivers into which
upstream cities have discharged treated sewage, and after filtration
and treatment of the water it is regarded as satisfactory for municipal
purposes. The injection of highly treated sewage effluent into ground
water reservoirs is a practice which should be considered, and which
need have no adverse public health effects. Some legal problems will
doubtlessly arise.
One legal problem to which consideration has been given in some
states arises from attempts to produce additional precipitation by
cloud seeding. Should those firms engaged in cloud seeding be licensed
by a state agency, and what recourse does a property owner have who
alleges damage because of artificial increase in precipitation?
Legal problems arising out of coastal waters have received little
attention in efforts to establish new water laws. One great development
of recent years is the small boat activity which has called for many ad-
ditional harbor facilities. When improvements are made to an estuary
to enlarge or create a harbor, there are likely to be changes in tidal







30 WATER RESOURCES

regimen which affect riparian owners and in salinity which affects
shellfish. The continuing improvement and protection of our beaches
involve engineering works, usually by public agencies, which may have
substantial effect over long stretches of the coast. The ownership of a
beach, as between the state and a riparian owner, varies in different
states, and access of the public to that part of a beach (below high or
low water line) in public ownership has caused legal difficulties.
Finally, it may be worth-while in closing to revert to the legal and
administrative problems arising from extrastate authorities. The fed-
eral government is contributing so much money to navigation, flood
control, and watershed developments, involving from 80% to 90% of the
cost, that in these areas the execution of state policies differing from
federal policy may be difficult. The pending River and Harbor Bill
permits the federal government to include storage in navigation, flood
control, and multiple-purpose reservoirs for almost any beneficial
downstream purpose, and specifically authorizes cooperation with
states in connection with public water supplies. The Federal Power
Act, the Water Pollution Act, the Flood Control Acts, the Watershed
Protection Act, etc., all take the federal government significantly into
nearly every form of water resources activity. One serious failure in
many states is the lack of a single state agency (except in water pollu-
tion) competently staffed to review federal programs and to deal ef-
fectively with federal agencies.
Many of our major rivers are interstate in character. Not only is
the federal government likely to assert jurisdiction with respect to the
broad powers contained in the Commerce and Welfare Clauses of the
Constitution (navigation, flood control, and multiple-purpose develop-
ments stemming therefrom), but interstate controversies are likely to
arise with respect to the most beneficial use. Interstate compacts
have not proved successful in the eastern states in certain instances,
and in such cases resort is had to the Supreme Court of the United
States through an application by one state for an injunction prohibiting
a contemplated action by another state. In two important cases of this
sort, (1) Connecticut v. Massachusetts2 on the Connecticut River and
(2) New Jersey (with Pennsylvania as intervenor) v. New York3 on the
Delaware River, the Supreme Court rendered decisions "equitably ap-
portioning" the river waters. In the New Jersey case the court also
retained jurisdiction to modify the decree should circumstances change,
and in 1954 the decree was substantially modified. 4


2. 282 U.S. 660, 51 S. Ct. 286; 283 U.S. 789, 51 S. Ct. 356 (1931).
3. 283 U.S. 336, 51 S. Ct. 478; 283 U.S. 805, 51 S. Ct. 562 (1931).
4. New Jersey v. New York, 347 U.S. 995, 74 S. Ct. 842 (1954).








AND THE LAW 31

The powers of the federal government over state and interstate
waters, both by the Executive and Judicial Departments, should be con-
sidered in formulating any state water policy.


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