WATER AND THE LAW*
Clarence A. Davis**
I took this over-all title "Water and the Law," because it is ideal
for my purposes. It lets me cover what may be called the "broad
over-all viewpoint," and there is nothing that we in Washington do bet-
ter than to cover the broad over-all aspects of any problem. Technical
engineering facts and all of the refinements of the law schools don't
bother us a bit. We simply don't know anything about them, so we rise
above them to the "higher level" of charming generalities.
The importance of this subject of water cannot be overemphasized.
'When we are dealing with it, we are dealing with one of the necessities
of life. An abundance of clean air, of clean water, and of adequate food
is the basis of life.
The water problem, nation-wide, is becoming critical at such an
accelerated pace that I suspect it may crowd crop surpluses off the
front page in the next twenty-five years. To this audience it is super-
fluous to outline the growing importance of the problem. With more
than a thousand cities in the United States driven to restricted water
programs, with large areas of the country suffering from excessive
draw-downs of underground water, with demands for water for indus-
trial uses climbing to astronomical heights, and with the constantly in-
creasing pollution of many of our streams, we have problems which
will call for the finest engineering, scientific, and legal minds in the
The legal problems relating to water are becoming just as apparent
as are the physical problems, and I suspect we are approaching an era
in which many of our concepts regarding the law of waters will of
necessity be revised. Economic needs will rewrite our laws, just as -
they wrote the doctrine of appropriation into the law of the west; and
our problem as lawyers is to achieve progress without confiscation of
vested rights and, if possible, without the intrusion of government into
the daily affairs of our citizens.
The immensity of the legal problems involved cuts across all levels
*Banquet address by Clarence A. Davis to the Conference on Water Re-
sources and the Law, University of Michigan Law School, September 5,
**Attorney, Washington, D.C., Former Undersecretary of the Department
of the law, of individual rights, of state activity, and of national policy.
Do we abandon the age-old conception that the owner of land owns from
the center of the earth to the roof of the skies, and, therefore the water
under his land? Or must he acquire the right to the water under his
own land on some theory of appropriation or riparian rights? May he
unrestrainedly use that which is his? What obligation, if any, does he
have to his neighbor, and how far do correlative rights in underground
waters extend? And may cities from a distance, by some legal
process, appropriate the water from under my land and haul it away
for distant uses?
If my forefathers were foresighted enough to locate the family
homestead along a lovely stream, must I surrender much of the prac-
tical benefits of that riparian ownership to strangers, whose demand
for the appropriation of that stream may be considered superior to my
own? Am I entitled constitutionally to monetary damages, no matter
who the taker? Is public necessity sufficient to justify the diversion of
that stream to another valley, to compel the sharing of that water with
other areas where nature was less kind, or the settlers*less fore-
What rights accrue to be who builds a dam and impounds the water
of my stream, telling me that I cannot have it except as he sees fit to
release it from the dam? Must I pay him for his services, whether
wanted or not? Even if it is the federal government? And, on the
other hand, if he impounds behind his dam water which would otherwise
be wasted down my stream, does he become the owner of that water,
and what may he do with it? Does he own it? May he sell it? To
Who is to determine which use of water is most important, once
we have conceded that domestic uses must stand at the head of any list
of so-called priorities?
However charming the theory of the most beneficial use "in the
public interest" may appear, who has the wisdom to determine that fact
for the long-range welfare of our community and our country? Who
could have foreseen the conversion of the middlewest from its early
title of the Great American Desert into one of the great food-producing
areas of the world? Who could have foreseen the conversion of much
of the economy of the Pacific northwest from agriculture to industry?
What elements of governmental control of water are we willing to
accede to? Governmental control of our major rivers? Of their
tributaries? Of the little'creeks that feed the tributaries? Of the
small watershed dams and the farm ponds which in turn contribute to
the national water supply?
How far does the Commerce Clause stretch? We have already
crept a long way up our rivers with government control, far past the
AND THE LAW 41
stage of actual navigation. How many of these apportionment problems
between our states may be solved by compact at the local level? How
many of them may be solved by judicial decree, resulting in interstate
apportionment? Are we willing to go all the way with the theory of
federal ownership of water, which, in substance, is being urged at the
present time in many areas? (By government, let me say, not by
With the tremendous urge for the out-of-doors, what place in the
scheme of things does the conservation of water for recreational pur-
poses have? Are the fishes and the trees and the birds and the bees
more important than agricultural uses or industrial uses, and who is
What laws do we enact to handle the problem of water pollution in
many of our,major sources of domestic water supply? That legal
problem relating to industry is not too difficult, but what legal ma-
chinery can we devise which will compel municipalities, public
agencies, or the sovereign states themselves to perform what appears
to be a clear-cut duty in eliminating stream pollution? Or must we
helplessly throw up our hands and rely on the uncertainties of federal
appropriation to achieve a necessary result?
Along our international borders, primarily the Great Lakes and
the Columbia Basin, where do we stand with reference to the maximum
utilization of these great international assets?
These are some of the questions which arise in the minds of those
familiar with water problems, and there are few firm answers to any
of them. Yet the answers to some of these questions will have a pro-
found effect upon the future economic life of our country and even the
governmental structure of the United States. In at least half of the
geographical surface of our country the control of water means the di-
rect control of land. We have built the tremendous industrial and
agricultural strength of this country upon the principle of individual
ownership and control of land and of complete freedom of industrial op-
portunity. But we must remember that both of these are fundamentally
dependent upon water.
When we realize that 7,000 gallons of water are necessary to raise
one bushel of wheat, and when we find that up to 60,000 gallons of water
are used in the manufacture of one ton of steel, we get a glimpse of the
economic power that would go With the control of that water supply. It
is even more vividly illustrated in some sections by the utilization of
water in the production of hydroelectric energy and the subsequent in-
trusion of governmental action into the daily affairs of our people.
Ours is a great country, built upon the theory that every man has
the right to engage in any business his fancy chooses, and to sink or
swim, live or die, by his own foresight, ingenuity, and effort; and yet
we had reached the stage in the Pacific northwest where we had govern-
ment domination of the water of a great river basin; where people must
come, hat in hand, to government officials for the allocation of electric
energy sufficient to enable them to start a new business or expand their
To me it was a shocking thing in the Department of the Interior to
have people come and say, "Please, can I have 5,000 kilowatts with
which to start myself in a little manufacturing business," or something
of that nature, and yet that is the point we reach when we follow the
doctrine of governmental control of such a basic resource as water;
and let us all realize that that is exactly the same situation in which we
put every landowner, every municipality, and every industry in the
country, if we are not careful of the length to which we extend govern-
mental control of this basic natural resource.
I repeat, the control of water means the control of land; it means
the control of industry, which in turn means the control of the location
of population. It means the power to replace an existing economy with
a new economy, to sound the death knell of settled areas and to raise
up new areas, all by the manner in which we administer this resource.
And in this connection, we must not overlook the helplessness of
the individual when a great arm of the government undertakes to plan
the use of the resources of his area, perhaps to invade his farm, per-
haps to displace it completely. It is all very well to talk about access
to the courts; but actually, if he tries to oppose government wrong-
doing, he will be met with pleas of governmental immunity to suit, with
a flock of motions that he has not named the proper parties, that he
cannot get service upon the proper parties within his home jurisdiction,
and with such a maze of legal maneuvers that unless he is a very
wealthy man and has counsel inspired with true zeal to protect him, his
legal remedies are not very effective; and one does not need to practice
law very long in country districts, as I have done, to realize that there
really is no practical and conceivable remedy that does not cost more
than the injury is worth.
To me, therefore, it is a subject to be approached with profound
thought, not only because of the immediate question of water supply,
but because of the long-range consequences to our economic and po-
Far too much of this problem has already been dragged into the
field of politics, and there is little connection between political
demagoguery and economic reality. But do not misunderstand me.
An appropriate field for legislation exists at the local and state levels.
One of the first of these areas that needs attention is that of the under-
ground water problem, and that leads us back to the painful fact that in
many of the states it is difficult to legislate because we do not know
what we are legislating about.
AND THE LAW 43
The Geological Survey and the water agencies of many of the states
have done magnificent work with the money available in exploring the
extent, the usability, and the recharging characteristics of our under-
ground water supplies, but in many large areas we are woefully lacking
in basic data. We need, therefore, first of all, adequate appropriations
to complete the studies so that we may know what we are legislating
Secondly, we need the courage to face up to the facts. Legislation
relating to underground water is one of the prickliest thorns with which
the legislator is confronted. Some areas of our country have held great
basins of underground water, which at first had appeared inexhaustible,
but which time has demonstrated, for some reason or other, are geo-
logically cut off and have a very slight recharging ability.
There are areas in California where we have gone down and down,
deeper with pumps, until we are lifting water from a depth of more
than 600 feet for irrigation purposes. In the middlewest, and particu-
larly my home State of Nebraska, we are blessed with what appears to
be an almost inexhaustible supply of underground water at a relatively
shallow depth. When I first became interested, in this problem, there
were about 2,000 wells in a stretch of the Platte Valley of approxi-
mately 200 miles. When I came to Washington some five years ago,
there were approximately 9,000 wells in that area, and I am told today
that there are about 14,000. It is perfectly obvious that no matter how
great the underground supply may be, you can't pull 14,000 six-inch
streams of water out of the ground within that limited area without very
materially lowering your water table, and if long continued, necessi-
tating some type of proration legislation.
Yet the individuality of our people in such that only economic
necessity will gain their consent to regulatory legislation. To a lesser
extent, this problem has plagued many of the states. This is a vast
country, and conditions vary so widely from coast to coast that any
federal legislation on such a subject is inconceivable.
The same principle is true with relation to most of these other
problems. Matters which need high priority in New England may be of
low priority in the middlewest, and within our larger states priorities
may even differ from area to area. It is a problem to which local and
state government must address itself, and our greatest service can be
in the realm of wise direction of legislation of that type.
The Bureau of Reclamation tells me that there are now more than
two million acres of irrigated land east of the Mississippi. I have
been amazed to see the rapid development of irrigation in both Virginia
and Maryland in the last two or three years. On the other hand, the
dispersal of industry is creating large industrial demands for water in
regions that heretofore were dedicated entirely to domestic and
agricultural uses. A system of completely rigid statutory priorities
may, therefore, run directly counter to the normal economic develop-
ment of an area.
I have been much impressed with the theory of licensing at least
'"new water" to the uses which seem at the moment to be of the greatest
benefit to the area in which they occur. We in the administrative law
field are constantly complaining of the lack of adequate legislative
standards with which to administer broad congressional statutes. We
have in this problem of the wisest use of water that same problem of
adequate statutory standards.
It seems to me that to say merely that in the event of shortage
water will be used for its "highest" use or its "most beneficial use,"
vests tremendous discretionary power in the hands of the administra-
tive agency, without spelling out what we mean by "highest" or "most
beneficial" under given sets of circumstances.
For instance, in the Columbia Basin within the last two or three
years we have had the conflict between industrial employment and ade-
quate conservation of water. Sometimes prudence would seem to indi-
cate that storage water should be held and doled out at a minimum rate
to keep navigation effective and hydroelectric power operating only at
moderate capacity, but this in turn results in the necessary closing of
aluminum and other industrial plants, whose power priority is low,
which means in turn the unemployment of several thousand people. On
the other hand, if the full head of water is maintained and the industrial
plants kept open, then sooner or later, because of water shortage, we
have to go to the steam generation of electricity at a much higher cost,
paid, of course, by all of the ratepayers of the region.
I give you this as one example of the type of conflict which will in-
evitably arise to vex any commission or administrator who is required
to determine the highest or most beneficial use of an inadequate water
supply. Yet the few thousand who are about to become unemployed are
much more vocal-at the moment of decision-than the few million who
will ultimately pay the bill.
I think the most fundamental legal problem in the field of water re-
sources is the delineation of federal and local activity and the determi-
nation of federal constitutional power. This goes to the heart of the
problem and determines whether or not we are to federalize the waters
of the United States. Until this is settled, all else is vain.
As some of you are aware, litigation is pending between Arizona
and California, with the federal government a party, over the distribu-
tion of the waters of the Colorado River. This is bringing into focus
for the second time rather clearly the contention that the federal
government is the owner and may do as it pleases with the waters of
western streams, regardless of the rights of the states or of individual
riparian or appropriative holders.
AND THE LAW
The argument is being made that the United States acquired the
southwest from Mexico, partially through the Mexican War, partially
through the Gadsden Purchase, and that the United States, therefore,
became the owner of that territory, including both the land and the
water; that it has never alienated the water, and, therefore still owns
it; and that under Article VI, Section 3, of the Federal Constitution, .it
may make "all needful rules and regulations respecting the territory
ahd other property belonging to the United States."
It is next being contended that under the Commerce Clause the
waters of the Colorado are navigable, or by the expenditure of money
could be made navigable, and, therefore, are under the exclusive
jurisdiction of the federal government through the Commerce Clause.
The claim is being made that water required for the further de-
velopment of desert public lands now undeveloped may proceed if the
government so decides without any heed to existing rights acquired
under the laws of the states, and the further claim that if the govern-
ment sees fit, recreation facilities on Indian lands or government
lands, including large preserves for migratory water-fowl, by reason
of government ownership of the water, may take precedence over the
appropriative rights of individuals acquired under the laws of the
The government made more or less similar claims some years
ago in the interstate litigation between Nebraska and Wyoming, at which
time the court denied the theory of federal ownership; but I should point
out to you that stare decisis is not in high favor at the moment.
I should also point out to you that there is very little of the land
area of the United States that was not once owned by the government in
a proprietary capacity, including, if my memory serves me right, the
old Northwest Territory on which we now stand. It is obvious that the
sustaining of any such theory is totally destructive of supposed property
rights which have existed for many decades. Especially in the western
states, a water right acquired by whatever method under the laws of the
states is regarded as a property right and the title to it as sacred as
the title to the land itself.
You can be sure that such a challenge to the untold millions of dol-
lars of values of these rights will not go unanswered, and there is now
pending in the Senate of the United States S. 863 introduced by Senator
Barrett of Wyoming, joined by sixteen Senators, largely from western
states, which bill undertakes to set at rest forever this doctrine of
federal ownership of water, by the simple expedient of providing that
"in connection with Federal programs, projects or activities no Fed-
eral agency or employee of the Government shall interfere with the
exercise of any right to the use of water for beneficial purposes there-
tofore acquired under and recognized by State custom or law except
when authorized by Federal law and upon the payment of just compensa-
tion therefore. "1 It further provides that "subject to existing rights all
unappropriated navigable and nonnavigable ground and surface waters
are reserved for appropriation dnd use by the public pursuant to State
law. "2 According to the bill's provision, all federal agencies may ac-
quire rights to water only in conformity with the laws of the states,
except those obtained by an exercise of the power of eminent domain
when expressly so authorized by the Congress. 3
Let me emphasize that this does not undertake to deprive the fed-
eral government, acting through its Congress, of any assertion of
federal power which the Congress sees fit to make, but it does deprive
a great multitude of administrative officials of their tendency to assert
an inherent federal constitutional power when, in fact, there is no
Perhaps I should say a word about the international aspects of our
water problem. Our Canadian Water Treaty of 1909, I suspect, the
law professors are more familiar with than I. It undertakes to regu-
late the area of international boundary waters and international streams.
We have a great field for international cooperation with our Canadian
The Columbia River rises in Canada, although many of its tribu-
taries rise in the states. It recrosses the border and has a tremendous
potential for navigation and power. At its big bend where it turns
southward, somewhere 150 miles'north of our boundary, lies the Mica
Creek site, where it is possible to impound more than ten million acre
feet of water, sufficient to level out the flow of the Columbia in all ex-
cept the most adverse years.
The proposal is that we of the United States build at that site the
dam and structures for water storage. Public, state agencies and pri-
vate capital stand ready to do the job. The production is more than a
million and a half kilowatts of energy, a large part of which is in
Canada, but quantities of which are also produced by the passage of that
water through plants in the United States-Grand Coulee, Chief Joseph,
Priest Rapids, Rocky Reach, McNary, The Dalles, and Bonneville.
An arrangement between Canada and the United States, utilizing
for our mutual benefit that tremendous potentiality for the conservation
and use of water on terms equitable to both nations, is perhaps the
major possibility in the northwest quarter of the United States.
This is a bird's-eye view of some of the problems. Let us not for-
get that scarcity creates all our water problems, and that abundance
1. S. 863, 5, 84th Cong. 2d sess. (1955).
2. Id. at 6.
AND THE LAW 47
would solve them. That abundance appears possible, although at the
moment on a distant horizon. There are three possibilities.
The reuse of water illustrates the first potentiality. By purifica-
tion and recirculation one of our steel plants has dropped its water
requirements from 60,000 gallons per ton of steel to a mere 1, 600.
By the same token, industrial consumption can be tremendously cur-
tailed by treatment and reuse, as studies of individual situations indi-
Secondly, 'the Interior Department is charged with an extensive
program of experimentation in the demineralization of brackish and
salt water. Considerable progress has been made, although we are
still far from producing usable water from sea water at a cost that is
not prohibitive for anything except domestic uses, and even there the
costs are far above our present water rates.
We have far too long regarded water as a commodity which by na-
ture is free. I suspect we will have to adjust our thinking in the years
to come to the fact that our water bill may have to go up until it is
comparable to our gas bill or our electric bill. At that level of rates
much could be achieved. We must be careful not to overstate the po-
tentialities of the desalting of water. The congressional committee
making the appropriation this year is highly critical of overly opti-
mistic statements regarding the possibilities. Nevertheless, we con-
tinue to put half a million dollars a year into grants and subsidies to
various universities and research organizations who are working along
this line to achieve this goal.
It is hardly necessary to point out that once achieved, we not only
have solved our own problems, but we have made large areas of the
world productive; we have made food supplies available in under-
nourished areas; we have made living conditions more tolerable; and
in the nature of things we have gone far toward eliminating the hardship
and discontent that actuates many nations in the adoption of their po-
Lastly, we are studying at length, and presently on a world-wide
basis, the potentialities of weather modification. By the infusion of
silver iodide into moisture-bearing clouds, we have in some instances,
so it is believed, succeeded in precipitating rain, but again, rain can-
not be precipitated out of a cloudless sky, nor can we precipitate clouds
prematurely without robbing one area to the benefit of another, and with-
out raising a host of legal problems even more complicated than the
questions I have been discussing.
Let us leave weather modification, then, merely with the statement
that a fine group of scientists in this country and in other parts of the
world-India, Australia, and the Far East-year by year are accumu-
lating data which may ultimately lead to our benefit.
I have not dwelt upon the fourth potentiality of increased water sup-
ply, namely, storage, since that potentiality is particularly obvious.
So here I shall stop, having delivered what I am sure you will agree
is a broad over-all view of the water problem.