Title: Statutory Regulation of Water Resources
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Title: Statutory Regulation of Water Resources
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Abstract: Richard Hamann's Collections - Statutory Regulation of Water Resources
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 8
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STATUTORY REGULATION OF WATER RESOURCES
Wilbert L. Ziegler

TABLE OF.CONTENTS

Page

I. INTRODUCTION .................... 89
I. PRIOR APPROPRIATION LEGISLATION . ... 89
II. WATER USE LEGISLATION IN RIPARIAN RIGHTS
JURISDICTIONS .......... ..... 91
A. Introduction .. . . .. 91
B. Maryland, Minnesota, Mississippi and Iowa . .. 91
1. General Observations ............. 91
2. Application of the Statute to Waters and Water
Uses . . . . .. 92
3. The Permit System ............. 97
4. Regulation After Issuance of Permit . ... 101
5. General Considerations . . .. 103
a. The Doctrine of Prior Appropriation and the
Water Acts .... ............. 103
b. Non-riparian Uses ............. 105
c. Nonconsumptive Uses of Water Under the Acts 105
d. Regulation of Water Uses as Constitutional. 107
C. Florida . . . . ... .. 107
D. Limited Control of Water in Other Riparian
Jurisdictions ................. 111
1. Irrigation . . . . . 111
2. Acquisition of Water Rights by Public Suppliers. .. 112
3. Non-riparian Uses ................ 113
IV. THE GROUND-WATER PROBLEM .. . . 114
A. Comprehensive Ground Water Codes ... ... 114
1. General Observations .............. 114
2. Application of Regulations ... . ... 115
3. Ground Water Areas . . .... 117
4. Maintenance of Ground Water Level . ... 119
5. New Administrative Powers . . .. 123
6. Conclusion . . . .... .124








88 WATER RESOURCES

TABLE OF CONTENTS cont'd

Page
B. Statutes in the Field of Ground Water. . 124
1. Statutory Prohibitions . . .... 124
2. Partial Affirmative Regulation . ... 125
V. CONCLUSION ................... .. 129














STATUTORY REGULATION OF WATER RESOURCES


Wilbert L. Ziegler*


I. INTRODUCTION
Regulation of water use by statutory method is increasing as states
which traditionally followed the common law doctrines continue to
legislate in the field of water use and water rights. An analysis of
present legislation regarding water use will be helpful not only in dis-
cerning the current trends but also in the formulation of new legislation
in the area. This paper is concerned principally with the statutory
laws of water use affecting ground waters and contained surface waters,
characterized generally as appropriation legislation. This paper does
not treat the many statutory enactments concerning pollution, naviga-
tion, drainage, conservation, recreation, or water development proj-
ects. A very abbreviated general summary of the nature of western
prior appropriation statutes governing only surface waters or surface
water and ground water together will be presented, followed by an ex-
amination of similar statutes enacted in states which always have fol-
lowed the common law riparian doctrine. Particular emphasis is given
to the very recent water use legislation of Mississippi, Iowa, and
Florida. Finally, there is included an analysis of legislation dealing
solely with ground water.

II. PRIOR APPROPRIATION LEGISLATION
As pioneers settled in the vast western United States, they found
the legal doctrine of riparian rights, developed in England and the east-
ern United States unsuited for regulating water use in the arid territory.
Based upon necessity, experience, and custom, they developed the
theory of prior appropriation which has become the law of seventeen
western states through constitutional provision or legislative enact-
ment. 1 The basic tenets of the doctrine are that a right to use water


*Legislative Analyst, Legislative Research Center, University of Michigan
Law School. Member of Ohio and Kentucky Bars. A.B., Villa Madonna
College, 1953; LL.B., Cincinnati, 1956.
1. Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Ne-
vada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota,
Texas, Utah, Washington, and Wyoming.


I








WATER RESOURCES


is acquired by application of the water to a beneficial use and the rela-
tive superiority of a right is determined by priority in time of the use.
Except for Montana, which administers the water appropriations on a
county level, centralized control of the water resources is vested in
the state engineer or a state administrative agency. In order to secure
a right to take water, application for a permit to divert must be made
to the engineer or the agency. If the administrator finds that the use
is for a beneficial purpose, in accord with the public interest, and that
there is water available, a permit will be granted. 2 The permit en-
titles the appropriator to take a stated quantity of water from a particu-
lar place for a designated purpose. The permit is subject only to the
condition of continued beneficial use and is a right in perpetuity. Con-
flicts between users as to their respective share of the water are
settled under the principle of first in time, first in right. A majority
of the statutes concern only regulation of surface supplies, but a few
include ground as well as surface resources without making any major
distinctions between them in the administration of the law. 3
Statutory enactments in the seventeen prior appropriation states
governing water use and water rights have been in existence for many
years. Through the years, changes have been made and provisions
have been added; nevertheless, the basic principles of the prior appro-
priation doctrine as first adopted still remain the law in these juris-
dictions. 4 Due to the relatively early enactment of these statutes,
much has been written about them, and an elaborate discussion in this
paper would add very little to the bulk of materials already in exist-
ence. 5


2. Some jurisdictions provide for a public hearing to determine the grant-
ing of a permit. E.g., Cal. Water Code 1340 to 1353.
3. Kan. Gen. Stat. 1949, 82a-701 et seq.; Utah Code Ann. 73-3-1 et
seq.; Wrathall v. Johnson, 86 Utah 50, 40 P. 2d 755 (1935).
4. In 1955, South Dakota adopted a new water code containing the basic ele-
ments of the theory of prior appropriation as enunciated in her previous
water legislation. S. D. Laws 1955, c. 430.
5. For detailed analysis and exposition of the western appropriation stat-
utes, see Wiel, Water Rights in the Western States (3d ed. 1911);
Hutchins, Selected Problems in the Law of Water Rights in the West
(1942); Thatcher, "Adjudication of Water Rights Under the Nevada Law,"
1925 Nev. B. A. 11; Comment, "Status of Appropriator of Water in Cali-
fornia Under Constitution, Statutes and Cases," 22 Calif. L. Rev. 333
(1934); Williams, "Irrigation Law in Colorado," 10 Rocky Mt. L. Rev.
87 (1938); Doyle, "Water Rights in Nebraska," 20 Neb. L. Rev. 1
(1941), 29 Neb. L. Rev. 385 (1950); Comment, "The Doctrine of Rela-
tion Back in Montana Water Law," 12 Mont. L. Rev. 87 (1951);
Trelease, "Preferences to the Use of Water," 27 Rocky Mt. L. Rev.
133 (1955).


I








AND THE LAW 91

III. WATER USE LEGISLATION IN RIPARIAN RIGHTS JURISDICTIONS
A. Introduction
Water use legislation of a detailed nature has appeared in only five
of the thirty-one jurisdictions which traditionally followed the doctrine
of riparian rights. Until recently, water supplies have been adequate
in the eastern United States, and no major regulation of use or change
in legal principles has been necessary. Much study and research is
underway currently, however, to determine the need and feasibility of
new legislation in other states. Two states, Maryland6 in 1933 and
Minnesota7'in 1937, adopted regulating legislation which is identical in
almost all respects. Significantly, three states recently have enacted
comprehensive water legislation: Mississippi8 in 1956, and Iowa9 and
Florida10 in 1957. Other riparian jurisdictions have enacted limited
or partial regulations. Indianall and Kentucky12 have declared the
beneficial use of surface waters of public interest, with domestic uses
given top priority, and have signified an intention to regulate the water
resources of the states, but no regulatory measures have been enacted
in either of these states. 13 This recent legislative activity is sympto-'
matic of the increasing concern of legislative bodies with the problems
of water use, and undoubtedly considerably more legislative activity
can be expected in the near future.
B. Maryland, Minnesota, Mississippi, and Iowa
1. General Observations
Of the five traditionally riparian rights states having extensive
water use legislation, Maryland, Minnesota, Mississippi, and Iowa
have statutes similar to each other and to the western prior appropria-
tion acts. Since their methods of handling the water resources are
similar, these four water use codes can be discussed together with a
great deal of profit.
6. Md. Laws 1933, c. 526,
7. Minn. Laws 1937, c. 468. The 1937 Minnesota enactment was repealed
by Minn. Laws 1947, c. 142, which added various other provisions along
with the re-enactment of much of the 1937 act.
8., Miss. Laws 1956, c. 164.
9. Iowa Laws 1957, c. 229, amending Iowa Code Ann. c. 455A.
10. Fla. Laws 1957, c. 57-380.
11. Ind. Stat. Ann. 027-1401 et seq.
12. Ky. Rev. Stat. 262.670 et seq.; Note, "Riparian Rights-Analysis of
New Statutory Provisions," 43 Ky. L. J. 407 (1955).
13. The legislature of Indiana in 1957 passed an amendment to their initial
water legislation. The act, as amended, would have constituted a rela-
tively comprehensive water use statute. However, the amendment was
vetoed by the governor.


I I 1








WATER RESOURCES


The statutes in Maryland and Minnesota were enacted "to conserve,
protect and utilize the water resources of the State, in accordance with
the best interests of the people. "14 The declaration of policy in the
Iowal5 act contains a statement of purposes which is almost identical
in language to the Mississippi legislation. The Mississippi act states:

...[T]he general welfare of the people of the State of Missis-
sippi requires that the water resources of the state be put to
beneficial use to the fullest extent of which they are capable,
and that the waste or unreasonable use, or unreasonable meth-
od of use, of water be prevented, and that the conservation of
such water be exercised with the view to the reasonable and
beneficial use thereof in the interest of the people.... 16

To accomplish these aims in the field of water resources, each of
the four states either created a new administrative body or gave addi-
tional powers to an established agency. In Maryland the provisions of
the statute are administered by the Water Resources Commission, 17
in Minnesota by the Department of Conservation, 18 in Mississippi by
the Board of Water Commissioners, 19 and in Iowa by the Iowa National
Resources Council. 20
2. Application of the Statute to Waters and Water Uses
The agencies appointed to carry out the purposes of the water acts
in each of the four states, although in control of the water resources
and their use, do not necessarily have jurisdiction over all of the water
in the states nor over all uses of these waters. The jurisdiction is
limited. In discussing what phases of the water field are subject to
regulation and control by the water agencies, it is necessary to con-
sider two problems: (1) the type of waters of the states which are
regulated (surface waters, ground waters, or both), and (2) since the
statutes control water uses, the particular uses that are subject to
regulation. In treating the first problem, the Minnesota act provides:
It shall be unlawful... to appropriate or use any waters of the
state, surface or underground, without the written permit of
the commissioner....

14. Md. Code Ann. 1957, Art. 66C, 718; Minn. Stat. Ann. 105.38 (1956
Supp.).
15. Iowa Code Ann. 455A.2 as amended by Iowa Laws 1957, c. 229, 2.
16. Miss. Code Ann. 5956-01(a).
17. Md. Code Ann. 1957, Art. 66C, 718 et seq.
18. Minn. Stat. Ann. 105.37 et seq. (1956 Supp.).
19. Supra note 16 at 5956-08.
20. Iowa Code Ann. 455A.3.
21. Supra note 18 at 105.41.








AND THE LAW


Maryland22 and Iowa23 employ language similar to the Minnesota sta-
tute and provide for the regulation of both surface and underground
waters. The Mississippi legislation, on the other hand, states:
"Nothing in this act shall be construed or interpreted as affecting ground
or subterranean water rights or usage. "24
In determining what type of waters should be regulated by a water
use act, it must be recognized that for formulation of a comprehensive
and successful management program for the water resources within a
state, the agency in charge must have control of all waters. Water,
whether upon or beneath the land, is all part of a basic hydrologic
cycle. The appropriation of one source of supply affects the other.
When ground water users draw down the water table so as to lessen
stream flow, the agency must have power to regulate the ground water
users or else constructive planning and management of the water re-
sources will be thwarted. Potential users can easily escape regulation
by using ground water instead of relying on surface supplies. The
fostering of a legal distinction in treatment between various phases of
the same water cycle presents immediate problems of conflicting rights
between users from different phases of the same water cycle. Miss-
issippi, by limiting its regulation to surface waters only, has impaired
the effectiveness of its water agency and ill-equipped it to perform the
duties of water use management.
The second problem concerning the extent of the jurisdiction of the
agencies over the various water uses presents a situation in which each
statute has certain major differences and a few peculiarities of its own.
All four statutes provide expressly for the exemption or exclusion of
certain uses from regulation. The Minnesota act, to which the Mary-
land act is similar, 25 in handling the issue of exemptions, states:

Nothing in this section shall be construed to apply to the use of
water for domestic purposes serving at any time less than 25
persons, or to the use of water for any purpose originating
within the geographical limits of any municipality, nor to any
beneficial uses and rights-in existence on July 1, 1937.26

Mississippi provides:

...[N]othing herein shall interfere with the customary use of
water for domestic purposes... [and] nothing herein shall oper-
ate to deprive any landowner of the right to the use of the

22. Supra note 17 at 720.
23. Iowa Code Ann. 455A.18 as amended by Iowa Laws 1957, c. 229, 16.
24. Supra note 16 at 5956-01(c).
25. Supra note 17 at 720.
26. Supra note 18 at 105.41.








WATER RESOURCES


water from a spring arising on his land so long as such use
does not interfere with the right of any water user below...
[and] nothing herein shall interfere with a landowner's right to
place a dam across a gully on his property or across a stream
that originates on his property so long as provision is made
for continued established average minimum stream flow, if and
when such flow is required to protect the rights of water users
below. 27

The Mississippi act also provides that subject to the common law or
other lawful water rights of others, any person may erect a dam on
any stream having a minimum flow of not more than one-half million
gallons of water per day and use up to 300 acre feet of water without a
permit so long as the established average minimum flow is maintained.28
The Iowa code reads:

"Nonregulated use" means the use of water for ordinary house-
hold purposes, use of water for poultry, livestock and domestic
animals, any beneficial use of surface flow from rivers border-
ing the state of Iowa, or use of ground water on islands or
former islands situated in such rivers, existing beneficial uses
of water within the territorial boundaries of municipal corpora-
tions on the effective date of this Act, except that industrial
users of water, having their own water supply, within the ter-
ritorial boundaries of municipal corporations, shall be regulated
when such water use exceeds three (3) percent more than the
highest per day beneficial use prior to the effective date of this
Act, and any other beneficial use of water by any person of less
than five thousand (5,000) gallons per day....29

Iowa, like Mississippi in certain respects, preserves the right of any
person to use diffused waters, to drain land, and to construct an im-
poundment on one's own land or across a stream that originates on
one's own land as long as the construction is safe and the established
average minimum flow is continued if required to protect rights of
water users below. 30 All of the acts, like many prior appropriation
statutes, define various uses as "domestic" and exclude them from
regulation. Since the quantity of water for domestic consumption is
relatively slight, yet entitled to the highest priority, it is reasonable
and practical to exclude this use from regulation.
A major distinction between Maryland and Minnesota on the one
hand, and Mississippi and Iowa on the other, is found in their

27. Supra note 16 at 5956-04(a). Compare: supra note 23 at 17.
28. Supra note 16 at 5956-04(b). Compare: supra note 23 at 17.
29. IowaCode Ann. 455A.1 as amended by Iowa Laws 1957, c. 229, 1.
30. Supra note 23.








AND THE LAW


respective handling of uses existing prior to the enactment of their par-
ticular statute. Maryland exempts from regulation all uses31 and
Minnesota all beneficial uses32 being made at the effective date of the
act. Neither Mississippi nor Iowa exempt uses made prior to the ef-
fective date of their acts from regulation. Mississippi provides for an
administrative determination of the "rights of all water users who, on
the effective date of this act, are making beneficial use of water. "33
Iowa requires all existing users to get a permit subject to the same
criteria as new users. 34 An exemption for existing uses handicaps an
agency in its efforts to protect and conserve the public interest in the
use of water. A chief argument justifying the enactment of a water
control statute is that the amount of water available within the state is
insufficient to provide for all present and future users unless there is
intelligent planning and selective choosing of users by a competent
state agency. Yet, the present uses which have brought about inter-
vention by the state in Maryland and Minnesota are not subject to
scrutiny in the interest of the public. Minnesota's.exemption of only
prior "beneficial" uses makes it possible, theoretically, for the Min-
nesota commission under the criterion of "beneficial" to regulate uses
initiated prior to the enactment of the act and in this fashion achieve
comprehensive control of the uses of the state's water resources.
However, two considerations indicate that this will not happen. First,
no machinery is provided for the administrative determination of what
prior uses are "beneficial." Secondly, the term "beneficial" differs
from the criteria used to determine the granting of new applications
and is not defined in the act. 35 From these facts it does not appear
that the insertion of the term "beneficial" was intended by the legisla-
ture to invoke a detailed investigation of prior uses comparable to the
investigation provided for new uses by the statute.
Except for certain industrial users, Iowa exempts all "beneficial
uses of water within the territorial boundaries of municipal corpora-
tions" existing at the effective date of the act, 3& and Maryland and
Minnesota exclude uses of water for any purpose originating within the
geographical limits of any municipality. 37 The same criticism given
of the Maryland and Minnesota acts for excluding users existing at the
effective date of the act can be levied against the Iowa statute for
exempting existing municipal and certain existing industrial uses. The

31. Supra note 17 at 720.
32. Supra note 18 at 105.41 and text.
33. Supra note 16 at 5956-13.
34. Supra note 23.
35. Supra note 18 at 105.41.
36. Supra note 29.
37. Supra note 18 at 105.41 and note 17 at 720 and text.








96 WATER RESOURCES

Maryland and Minnesota exemptions for new municipal uses clearly in-
terfere with management and planning by their agencies for the develop-
ment of the resources of the state. Municipal users constitute one of
the largest consumers of water; it is a mistake to exempt these uses
from the regulation of any water management act. Further, by this
exemption for municipal uses many new water users who use water
within the territorial limits of a municipality are able to avoid statu-
tory regulation, whereas comparable users outside the municipal sup-
ply are required to get permits for their use. This presents an unfair
and inequitable situation as well as an unwise application of the statute.
Similar charges of inequity may be levied against the Iowa exemption
for industrial users having their own water supply within the territorial
boundaries of a municipal corporation when other industrial users are
subjected to the requirements of the act.
Mississippi and Iowa include certain exemptions which are not
common to other water use acts, and these different exclusions appear
worthy of comment. The Mississippi act grants an exemption for use
of water from a spring arising on one's own land. 38 The legislation
further preserves the right to place a dam across a gully on one's own
land or across a stream originating on one's own land, 39 or on any
stream of flow not more than one-half million gallons per day. 40 The
damming of a gully and the damming of the streams all appear to be
subject to the condition that rights of other users must be protected.
Iowa protects the use of diffused water and also the damming of any
stream if originating and flowing on one's own property. However,
rights of downstream users must be protected. 41 Generally insofar as
the use of spring water in Mississippi, the use of diffused water in
Iowa, and the damming of a gully or specified stress in either state
may not be performed if they interfere with the rights of other persons,
the exemptions will become meaningless once other users acquire
water rights below the owners having these exemptions. The sole ef-
fect of the exemptions is to allow the landowner to use the spring water,
diffused waters, or dam a gully or certain streams, if no other rights
are involved, without being required to obtain a permit and without
being subjected to the criteria of beneficial use and consistency with
the public interest. It is not clear whether or not the exemption for
erecting a dam on a stream originating on one's own property also
exempts the use of the water impounded if the use is within the permit
requirements of the act. Since the exemptions here discussed are sub-
ject to the condition that other rights must be protected, they do not

38. Supra note 16 at 5956-04(a) and text.
39. ]bid.
40. Supra note 16 at 5956-04(b).
41. Supra note 23.


--








AND THE LAW 97

constitute a major threat to the administration of the act and the ef-
fectiveness of the agency management. However, if the exempted use,
when initiated, does not interfere with other users and there is then no
regulation of the exempted use, the agency may be confronted with
serious problems in the future management of the water resource.
It is important for any water use act to provide some type of regu-
lation for the collection of diffused surface waters so as to prevent
serious problems arising for the state water agency. These waters
constitute a major source of supply for the streams and lakes from
which many persons take their water. From the viewpoint of adminis-
tration and security of water rights on streams and lakes, a water act
which entirely excludes' from regulation the collection of the diffused
waters is incomplete. Detailed regulation of all collecting of diffused
waters under a permit system probably is not necessary at this time.
Regulation of the collection of great amounts of these waters may be
desirable. However, the protection of users under a permit from in-
terference due to the detention of diffused surface water supplies is
most necessary.
3. The Permit System
For all uses of water not exempt from the act, and therefore sub-
ject to control, each of the four states makes use of a permit system
as the means of regulation. Before any use subject to the operation of
the act may be initiated, it must be sanctioned by a permit issued by
the state agency. To determine whether a particular use should be
granted a permit, various criteria are furnished by the statutes. The
Maryland act, to which the Minnesota statute is similar, 42 reads:

If the Department shall be of the opinion from all of the evi-
dence before it that, in pursuance of the policy of the State re-
garding its water resources herein declared, the plans of the
applicant provide for the greatest practicable utilization of the
waters' of the State and will adequately preserve public safety
and will promote the general welfare it shall grant the permit
to appropriate or to use the waters.... But if the Department
be of the opinion... that the proposed appropriation or use of
State waters... is inadequate, wasteful, dangerous, impractica-
ble, or will be detrimental to the best public interest, the De-
partment may reject such application.... 43

The criteria of the Mississippi statute are:
It shall be the duty of the board to approve all applications
made in such form as to meet the requirements of this act and

42. Supra note 18 at 105.45.
43. Supra note 17 at 725.








WATER RESOURCES


such rules and regulations as shall be promulgated by the board,
and which contemplate the utilization of water for beneficial
purposes, within reasonable limitations, provided, the proposed
use does not prejudicially and unreasonably affect the public in-
terest. If it is determined that the proposed use of the water
sought to be appropriated is not for beneficial purposes, is not
within reasonable limitations, or be detrimental to the public
interest, it shall be the duty of the board to enter an order re-
jecting such application or requiring its modification.4

An application may be approved for a less amount of water...
if... the approval of the full amount requested would interfere
with a vested right or is against public interest...no applica-
-tion shall be approved until...a public hearing [shall be] ac-
corded any person whose rights may be adversely affected by
such approval.45

The language of the Iowa act with reference to the granting of per-
mits reads:

In the consideration of applications for permits by regulated
users, the declared policies and principles of beneficial use, as
set forth in this chapter, shall be the standard for the determi-
nation of the disposition of the applications for said permits.46
If the water commissioner at the first hearing or the coun-
cil at the hearing on appeal shall determine after due investiga-
tion that such diversion,, storage or withdrawal will not be det-
rimental to the public interests, including drainage and levee
districts, or to the interests of property owners with prior or
superior rights who might be affected, the water commissioner
...or the council... shall grant a permit....47

The various criteria contained in the above quotations to determine
whether a permit should be granted can be reduced to three. The use
must be (1) beneficial, (2) consistent with the public interest, and
(3) consistent with the rights of other persons. The provisions used to
express these three criteria, although elaborate, nevertheless raise
certain problems. The language "preserve public safety," "promote
the general welfare," and "detrimental to the best public interest" in
the Maryland and Minnesota acts; the criteria, "beneficial purposes,"
"within reasonable limitations," and "not prejudicially and unreason-
ably affect the public interest" in the Mississippi provision; and the
language "detrimental to the public interests" in the Iowa act present

44. Supra note 16 at 5956-07.
45. Supra note 16 at 5956-18(a).
46. Iowa Code Ann. 455A.18 as amended by Iowa Laws 1957, c. 229, 11.
47. Iowa Code Ann. 455A.18 as amended by Iowa Laws 1957, c. 229, 10.








AND THE LAW 99

two questions. Are these criteria sufficient standards to withstand an
attack on constitutional grounds? Are they sufficiently clear to foster
intelligent action by the water agency? States steeped in the law of
riparian rights have had no experience in dealing with the concepts of
"beneficial" and "public interest." However, the western appropria-
tion statutes have long made use of these standards which are con-
sidered as terms of legal art in the water law field. 48 In view of the
wide usage and traditional characteristic of the standards of "bene-
ficial" and "public interest" it is extremely doubtful that these stand-
ards will be considered inadequate from the viewpoint of constitutional
law. However, although the courts probably will determine that these
standards satisfy constitutional requirements, only time will determine
whether they are adequate to assist the agency in planning for the fu-
ture development of the state's water resources.
The protection afforded by the statutes in their statement of cri-
teria to prior uses when considering the granting of a new permit is an
important aspect of water rights legislation. One of the considerations
justifying private investment in the development of the water resources
of a state is the stability of water rights. If a permit is given for water
use and then subsequent uses are allowed to interfere, the private in-
vestor will hesitate before relying on the permit structure to assure a
water supply. On the other hand, if reasonable stability is afforded to
the permits, reliance upon a permit as the basis for investment would
be justified. The Mississippi49 and Iowa50 statutes protect prior uses.
Maryland and Minnesota, on the other hand, do not consider the protec-
tion of existing uses in their legislation and express no interest in the
fact that a certain use may interfere with other uses already in exist-
ence. It is possible, however, for these two states to protect existing
rights under the statutory criterion requiring preservation of the gen-
eral welfare. 51 It generally will be in the public interest to protect
existing investments and existing patterns of use from interference by
new users. Without doing more than granting or denying permits for
water use on the basis of public interest, the Maryland and Minnesota
acts do not represent water rights laws, but only a medium of protect-
ing the public interest in the proper utilization of the water resources.
In addition to criteria for determining whether a particular use it-
self is entitled to a permit, the Mississippi and Iowa acts impose

48. See Ariz. Rev. Stat. 045-101B, 45-143; Cal. Water Code Ann. 8100,
101; Idaho Code Ann. 42-226 (1957 Supp.); Kan. Gen. Stat. 1949, 82a-
711; Nev. Rev. Stat. 533.050; Ore. Rev. Stat. 536.220(b), 537.170;
1 Wiel, Water Rights in the Western States 377-378 (3d ed. 1911).
49. Supra note 16 at 5956-18(a) and text.
50. Supra note 47.
51. Supra note 17 at 725 and note 18 at 105.45.








WATER RESOURCES


certain conditions which must be satisfied before a permit is issued.
Both statutes establish a formula for determining the average minimum
flow52 of a stream and deny to the water agency the power to grant a
permit for a use which would lower the water below the average mini-
mum flow. 53 They further provide that no use of water shall be author-
ized which will impair: (1) the effect of the pollution control laws, or
(2) the navigability of any navigable watercourse. 54 Reasons for pre-
serving the average minimum flow of stream waters are not evident
from the statutes. This action may represent an attempt to preserve
a flow of water which, it may be argued, satisfies the rights of any
riparian owners along the stream. Another purpose, as evidenced by
language in the Mississippi act, 55 may be the avoidance of conflict be-
tween the water appropriation board and the stream pollution board,
which latter agency may use the average minimum flow as a criterion
in setting standards governing pollution content. By refusing to allow
diversions below the average minimum flow and by providing for the
recognition of pollution control acts in the granting of permits by the
water agency, the statutes recognize (intentionally or otherwise) the
use of water for waste assimilation as valid by preserving it against
interference by other stream users. The recognition of the use of
water for waste assimilation is a realistic approach to water manage-
ment in areas which possess or which anticipate industrialization. It
is regrettable, however, that an artificial line of demarcation must be

52. The Mississippi act defines the average minimum flow as "the average
of the minimum daily flow occurring during each of the five (5) lowest
years in the period of the preceding twenty (20) consecutive years."
Supra note 16 at 5956-02(i). The Iowa act provides (supra note 29):
The "average minimum flow" for a given watercourse as
used in this Act shall be determined by the following fac-
tors: (a) Average of minimum daily flows occurring during
the preceding years chosen by the council as more nearly
representative of changing conditions and needs of a given
drainage area at a particular time; (b) minimum daily flows
shown by experience to be the limit at which further with-
drawals would be harmful to the public interest in any par-
ticular drainage area; and (c) those minimum daily flows
shown by established discharge records and experiences to
be definitely harmful to the public interest.
53. The Mississippi act states: "The board shall have the authority to per-
mit the appropriation of water of any stream only in excess of the es-
tablished average minimum flow...." Supra note 16 at 5956-04(c). The
Iowa provision is similar. Iowa Code Ann. 455A. 18 as amended by
Iowa Laws 1957, c. 229, 12.
54. Supra note 16 at 5956-04 (d and e); Iowa Code Ann. 455A.18 as amend-
ed by Iowa Laws 1957, c. 229, 13, 14.
55. Supra note 16 at 5956-04(d).








AND THE LAW 101

drawn between the water for waste assimilation and that for consump-
tive use. The most desirable situation would allow an evaluation of the
relative benefits of each type of use in a given instance. This cannot
be accomplished where control of water for waste assimilation and con-
trol for other uses is exercised by entirely separate agencies.
Once the criteria and conditions precedent to the granting of a per-
mit have been satisfied by the applicant, he is granted a permit to pro-
ceed with the use. (In addition to a permit, Mississippi provides for
inspection of the diversion facilities when they are completed, and if
satisfactory, then issues a license for the use. 56) Subject to the limi-
tations discussed in the subsection immediately following, the permit
to use water granted by the water agency is a right in perpetuity in all
of the states except Iowa. The Iowa legislation places a maximum lim-
itation of ten years on the duration of a permit. 57 By limiting the
duration, a periodic reexamination of the water use in light of new de-
velopments is provided, and a determination can be made whether the
particular use should be allowed to continue. Although the Iowa provi-
sion limiting permits in time appears wise and prevents the stagnation
of water development in the state, the maximum length of time for
which a permit may be granted, namely, ten years, is unrealistic.
This length of time is too short to provide the security necessary to
justify large investments of capital. It impairs long range planning.
Further, the period of time is too short to allow extensive bond financ-
ing necessary in the case of investments by governmental units. Since
the practice of granting permits for water use is new in Iowa, there is
no semblance of administrative precedent regarding the renewal of
permits. For this reason, the possibility of a renewal of the permit
as a basis for investment is not a sufficient foundation upon which to
risk relatively large amounts of capital. The maximum duration period
should be extended, thereby making the permit time consistent with the
realities of practical financing and long range business planning.
4. Regulation After Issuance of Permit
Once a permit has been issued, the control which each of the four
states exercises over the use varies considerably from one to the other.
In Maryland the activity of the water agency with reference to the per-
mitted use ceases after the permit has been granted. In Minnesota all
permits issued under the statute are subject to "cancellation by the
commissioner at any time if deemed necessary by him for any cause

56. Supra note 16 at 5956-19.
57. Supra note 47. Cf. infra note 105 and text relating to an Illinois provi-
sion for water permits which limits the duration of the permits to a
maximum of forty years.


I








WATER RESOURCES


for the protection of the public interest. "58 By this provision, all uses
of water made pursuant to a permit from the state are subject to the
continuing jurisdiction of the commissioner. It is questionable, how-
ever, whether the criterion, "public interest," is sufficient to serve as
a practical guide for the actions of the commissioner in cancelling per-
mits. The Mississippi act has several provisions which bear on the
issue of the continuing jurisdiction of the water agency. The act states:

Appropriation of surface waters of the state shall not constitute
absolute ownership or absolute rights of use of such waters, but
such waters shall remain subject to the principle of beneficial
use.59
... [U]po good cause shown, the board may modify or termi-
nate any appropriation at any time. 60

The right of the appropriator and his successors to the use of
water shall terminate when he ceases for three (3) consecutive
years to use it for the specific beneficial purpose authorized in
his permit or license....61

Iowa, like Mississippi, in controlling permitted uses, provides that the
water remains subject to the criterion of beneficial use and that nonuse
for three consecutive years results in a loss of the permit. 62 In addi-
tion, Iowa states:

...[A] permit may be modified or cancelled by the water com-
missioner in case of any breach of the terms or conditions
thereof or in case of any violation of the law pertaining thereto
by the permittee....or in case the water commissioner finds
such modification or cancellation necessary to protect the pub-
lic health or safety or to protect the public interests in lands
or waters, or to prevent substantial injury to persons or prop-
erty in any manner, upon...written' notice...giving the permit-
tee an opportunity to be heard thereon.63

Further, the Iowa commissioner may suspend operations under a per-
mit for a period of thirty days without a hearing in an emergency, to
protect the public health or safety or public interests in lands or

58. Supra note 18 at 105.44 sub. 9(1).
59. Supra note 16 at 5956-07.
60. Supra note 16 at 5956-05.
61. Supra note 16 at 5956-06.
62. Iowa Code Ann. 455A.18 as amended by Iowa Laws 1957, c. 229, 19,
20.
63. .Iowa Code Ann. 455A.18 as amended by Iowa Laws 1957, c. 229, 18
(2).






I i








AND THE LAW 103

waters against imminent danger of substantial injury. 64
If a water agency is to manage the water resources of the state for
the benefit of the public, it seems mandatory that the agency possess
some control over the uses of water after a permit has been issued. In
this regard, the Maryland act, by denying continuing jurisdiction to its
department, has inadequately equipped the agency to handle the duties
and carry out the purposes of the act. Minnesota, Mississippi, and
Iowa, by giving to their water agencies continuing jurisdiction over
permitted uses, have provided themselves with the mechanism for ade-
quate and complete management of their water resources. The provi-
sion for loss of permit rights by nonuse for three years found in the
Mississippi and Iowa acts has a long history with prior appropriation
statutes. It eliminates the tying up of the water resources by mere
"paper rights" and effectively maintains constant use and development
of the resources. This provision is an integral part of the statutory
plan fostering controlled development of the waters of the state. The
Mississippi clause allowing termination or modification of any appro-
priation upon "good cause" shown is in no way defined and only the
agency experience under the act will explain what constitutes "good
cause." The Iowa provisions granting to the commissioner power to
suspend operations under any permit if necessary in an emergency to
protect the public health or safety, or public interests in lands or
waters, is worthy of incorporation in other water control acts. Water
is a vital resource necessary to the maintenance of life and property.
These sections of the Idwa act give the commissioner the necessary
authority to handle unforeseen crises which may arise in relation to
water needs and water uses.
5. General Considerations
The foregoing discussion of the Maryland, Minnesota, Mississippi,
and Iowa statutes has considered individual segments with their peculi-
ar problems. The general import of the statutes.as a whole in the area
of water resources has been untouched. There are, however, several
general considerations which are not related to individual sections but
cut across the statutes as a unit. These topics are considered below.
a. The Doctrine of Prior Appropriation and the Water Acts
The doctrine of prior appropriation has served the people of the
western United States very well, and there is serious thought being
given to the adoption of this theory in riparian rights jurisdictions.
Have any of the four states here discussed adopted the prior

64. Iowa Code Ann. 455A.18 as amended by Iowa Laws 1957, c. 229, 18
(3).








WATER RESOURCES


appropriation doctrine? The characteristic of the prior appropriation
theory is that priority in time of application (or use) determines who
shall be entitled to available water (1) initially and (2) in times of
shortage. In the Maryland and Minnesota acts there is no mention of
priority. Apparently, the agencies in these two states may consider
applications for use in any order they wish. There is no stated protec-
tion for prior users. Presumably, the agencies in these two states may
consider applications and grant permits even though the use will conflict
with another prior appropriator. There is no evidence in the Minnesota
act that in cancelling permits to protect the public interest the com-
missioner must give preference to prior users. 65 In view of the ab-
sence in Maryland and Minnesota of any reference to the principle that
priority in time gives priority in right, it is reasonable to assume that
this element of the prior appropriation doctrine does not apply in Mary-
land and Minnesota.
In Mississippi and Iowa it is not clear whether the doctrine of prior
appropriation is substituted for traditional common law tenets. 66 In
both states, permits for water use are granted on the basis of first in
time of application. 67 This practice of granting permits for water on
the basis of first in time of application constitutes a partial adherence
to the doctrine of prior appropriation. In this regard, the states of
Mississippi and Iowa have adopted the prior appropriation law. Never-
theless, there is no evidence that a doctrine of priority applies between
individual water users when the quantity of water is inadequate to supply
all persons holding a permit. There is no expressed provision for the
application of a doctrine of priority in this instance. 68 The presence
of sections requiring permit applications filed first in time to be con-
sidered first by the board in granting permits is not sufficient to war-
rant the conclusion that Mississippi and Iowa are now applying the
prior appropriation theory between individual permit holders when the
water is inadequate for all. In fact, the sections granting power to the
Mississippi and Iowa water agencies to cancel permits or suspend op-
erations thereunder in the public interest are notable for their failure
to mention any principle of prior appropriation. In view of the lack of
evidence to the contrary, it seems apparent that the states of Mississip-
pi and Iowa will still apply something like the common law rules


65. Supra note 18 at 105.44 sub. 9(1).
66. It has been stated that the Mississippi act constitutes an adoption of the
doctrine of prior appropriation. Note, "Mississippi Water Conservation
Law," 28 Miss. L. J. 190 (1957).
67. Supra note 16 at 5956-17; supra note 46.
68. A common provision in western prior appropriation statutes states that
priority in time shall give priority in right.








AND THE LAW


relating to surface and ground waters in settling disputes between indi-
vidual permit holders.
b. Non-riparian Uses
Included in this comment on non-riparian uses of water are not
only uses from streams or lakes on land not adjacent thereto, but also
uses of ground water on land not located over the ground water basin,
or on the land not owned by the person on whose land the well is lo-
cated. The common law draws a clear line between uses on riparian
and uses on non-riparian land. The first is rightful; the second with
certain limitations is unlawful. The four statutes discussed above
make no distinction between uses riparian and non-riparian. In view
of the strong common law tradition, a serious question of interpreta-
tion may arise as to whether the water agencies hav been granted
power to approve non-riparian uses.
To carry out the purpose of a water use act to encourage the fullest
beneficial utilization of the water resources of the state, a rule of law
limiting the use of water to certain lands cannot be maintained. Uses
deserving public approval often exist without reference to their location
near a source of water. These uses should be granted a supply of water
if the public interest is to be served by the statute.
c. Nonconsumptive Uses of Water Under the Acts
Uses of water for boating, swimming, skating, fishing, and other
related purposes which do not require diversion or damming long have
been recognized by the common law as legally permitted and protected.
In many instances, large commercial enterprises have been built up
around the use of water for hunting, fishing, boating, and swimming.
The place of these uses in any water legislation deserves thought and
consideration. Whether a permit should be required for these uses,
or if not, what protection should be afforded to them are two important
issues facing any legislature as it considers the enactment of water use
legislation.
The statutes of Maryland, Minnesota, and Mississippi state that
no one shall "appropriate or use" the waters subject to regulation un-
less a permit is acquired from the water agency. 69 There is no evi-
dence from the statutes themselves that this language includes non-
consumptive uses of water.
The general tenor of the acts and the precedent in western prior
appropriation states would tend to indicate that uses, other than with-
drawals or diversions, are not within the permit requirement of the

69. Supra note 17 at 720; supra note 18 at 105.41; supra note 16 at
5956-04(a).








WATER RESOURCES


acts. The Iowa statute states that "no person shall take water from"
any of the sources of supply regulated by the act unless a permit is
acquired. 70 This provision clearly indicates that only diversions and
withdrawals are considered subject to the Iowa act.
Allowing water uses such as fishing, boating, swimming, and other
similar uses to exist without the requirement of a permit is not incon-
sistent with the purposes of the acts since these uses do not disturb or
interfere with the flow or level of the water. They are entirely com-
patible with the withdrawal, diversion, or damming of the surface
stream water. However, it is important to determine what protection,
if any, is afforded these uses from interference by upstream diversions
and appropriations. For example, will the water agency grant permits
for diversions of water when these diversions interfere with the opera-
tion of a swimming pool or fishing resort downstream? The legislation
in Maryland and Minnesota is not aimed at solving water problems be-
tween individual users nor does it present a new theory of water rights
law. The permit granted by the water agency in these two states for a
particular water use signifies only that the use is in accord with the
public welfare. It does not guarantee or grant a right to the use of
water which must be respected by the courts or by other users. In
view of this situation, the uses of water for which a permit is not
authorized in Maryland or Minnesota would be protected in accord with
the common law doctrines of the state.
In Mississippi and Iowa, only speculation is possible as to whether
recognition and protection are extended to uses of water outside the
permit system. In discussing the criteria and conditions precedent to
the granting of a permit, it was noted in the Mississippi and,Iowa acts
that a use to be permitted must be consistent with other uses being
made at the time. The Mississippi act infers that no permit shall be
granted if the use "would interfere with a vested right, "71 and states
that a person "whose rights may be adversely affected by such ap-
proval"72 shall be permitted a public hearing. Iowa provides that a
permit will be granted if the use "will not be detrimental... to the in-
terests of property owners with prior or superior rights who might be
affected. "73 Iowa also provides that "nothing in this chapter shall im-
pair the vested rights of any person. "74 In view of the language in the
Mississippi and Iowa acts it is reasonable to conclude that the water
agency will lend an ear to the pleas of all water users who possessed
rights under the common law doctrines regardless of whether or not

70. Supra note 23.
71. Supra note 16 at 5956-18(a).
72. Ibid.
73. Supra note 47.
74. Supra note 46.








AND THE LAW 107

the particular use is entitled to a permit under the act. In this manner,
the interests of the public in &1l types of water uses being made at the
time of applications for permits will be safeguarded.
d. Regulation of Water Uses as Constitutional
There are two basic questions which underlie the issue of the con-
stitutionality of the statutes. First, under the common law of the par-
ticular state, what constitutionally protected property rights, if any,
exist to the use of water by individual landowners? Secondly, if cer-
tain rights do exist, may they be regulated under the police power of
the state? These questions are discussed in detail in other articles in
this volume; 75 At common law, the owner of land along the bank of a
stream or lake is entitled to make a reasonable use of the water sub-
ject only to the reasonable uses of other riparians upstream. 76 A few
states apply this same test of reasonableness to the use of ground
waters while others permit a ground water user to take all the water
he can withdraw without limitation. The criterion of reasonableness
is employed with reference to the uses of other persons having land
adjacent to or overlying the water source.
In order to qualify for a permit, each of the four statutes here dis-
cussed requires a use of water to be "beneficial" and consistent with
the "public interest. "77 The statutes of Mississippi and Iowa apply a
doctrine of priority in time of permit application to determine prefer-
ences to water use78 and apparently make no distinction between
riparian or non-riparian land. 79 In treating the constitutional issue,
it must be determined (1) whether at common law a landowner pos-
sessed a constitutionally protected property right to make a reasonable
use of water flowing by or under his land subject only to upstream
riparian uses, 80 and (2) if a protected right does exist, whether the
state through the exercise of its police power may regulate the right in
the public interest.
C. Florida
In 195781 the Florida legislature enacted a water use statute which,
like the acts of Maryland, Minnesota, Mississippi, and Iowa, has as

75. See Lauer, "The Riparian Right as Property"; King, "Regulation of
Water Rights Under the Police Power," this volume.
76. The common law principles regulating water uses are discussed in Zieg-
ler, "Water Use Under Common Law Doctrines," this volume.
77. Supra Part m, B 3.
78. Supra note 67.
79. Supra Part III, B 5b.
80. It is conceivable that a court will find the landowner's right to use water
at common law to be more limited than set forth herein. Supra note 76.
81. Supra note 10.








WATER RESOURCES


its purpose the preservation of the public interest in the proper utiliza-
tion of the water resources of the state. 32 In addition the Florida
statute expressly adopts as one of its purposes the preservation and
securing of existing uses of the water resources. 83 The act establishes
the Department of Water Resources through which the Florida State
Board of Conservation operates to accomplish the purposes of the act.84
The department is charged with the duty of conducting investigations to
determine the maximum beneficial utilization, development, and con-
servation of water; collecting, compiling, and analyzing factual data
necessary for administering the water resources; and cooperating with
local governmental organizations and agencies in utilizing and conserv-
ing the waters of the state. 85
The jurisdiction of the board extends to "surface water excluding
lakes or ponds completely surrounded by land the title to which is
vested in a single owner or in two (2) or more co-tenants, joint tenants
or tenants by the entireties and ground water. "86 Excluded from regu-
lation under the act are:

(1) Individual users of water for domestic purposes or ordinary
livestock consumption.
(2) That part of rivers or streams which constitute the bounda-
ry of the state of Florida or which may divide the lands of the
state of Florida from any other state.
(3) Control of water-borne wastes from municipalities or indus-
tries. 87

Thus far considered, the Florida act is similar to the acts of other
traditionally riparian jurisdictions which have been previously dis-
cussed. However, the method of carrying out the purposes of the
statute through a water agency differs radically in the Florida act from
the method employed in the water control acts of the other states. The
Florida State Board of Conservation is granted two powers:

To authorize the capture, storage and use of water of any
watercourse only in excess of average minimum flow at the
point of capture; to authorize the capture, storage and use of
water of any lake only in excess of average minimum level; to
authorize the capture, storage and use of ground water only in


82. Supra note 10 at 4.
83. Ibid.
84. Supra note 10 at 5.
85. Supra note 10 at 3.
86. Supra note 10 at 2, 4, 7, 8, 11.
87. Supra note 10 at 1.








AND THE LAW


excess of average minimum elevation at the point of capture;
and to authorize the diversion of such waters beyond riparian
or overlying land; provided that such capture, storage, use or
diversion of water from a surface or ground water source will
not interfere with the reasonable uses existing at the time of
the beginning of the capture, storage, use or diversion.88
To create or dissolve within the state such water development
and conservation districts as are necessary to serve the pur-
poses of this act.89

The power to create and dissolve water development and conservation
districts90 is the springboard from which subsequent powers of the
board proceed. A water development and conservation district can be
established, after a public notice and hearing, upon petition from the
board of county commissioners, upon petition of twenty-five percent
of the freeholders of any territory proposed for a district, or upon a
determination by the Department of Water Resources that a necessity
exists for such action. 91 "No such district shall be created or dis-
solved by the board unless the necessity therefore is established by a
preponderance of evidence at the hearing. "92 The sole criterion em-
ployed to determine whether a district will be formed or dissolved
under the act is that the district is necessary to carry out the purposes
of the act, i. e., to effect "the maximum beneficial utilization, develop-
ment and conservation of the water resources of the state" and protect
existing rights to the use of water. 93
Once a district has been established under the act, the statute pro-
Svides:

The board is authorized in any water development and conser-
vation district established under this act to formulate, adopt,
amend, and repeal rules and regulations, and to issue orders
reasonable and consistent with law to govern the conservation
and use of the water resources of the district including rules
for the appointment of a district advisory board and the func-
tions thereof; provided that in promulgating rules and regula-
tions and issuing orders under this act the board shall act with
a view to full protection of the existing rights to water in this
state insofar as is consistent with the purpose of this act. No
rule or regulation, other than a rule or regulation relating sole-
ly to the internal management of the board, department or any

88. Supra note 10 at 8.
89. Ibid.
90. Ibid.
91. Ibid.
92. Ibid.
93. Ibid.; supra note 10 at 4.









WATER RESOURCES


district established under this act, and no order shall be adopt-
ed, promulgated, issued, amended, or repealed except after a
public hearing pursuant to notice as provided in section 9. The
board shall not adopt, issue, amend, or repeal any such rule
or regulation unless a need.for such action is shown by a pre-
ponderance of evidence presented at the public hearing. Neither
shall any rule, regulation or order require any modification of
existing use or disposition of water in the district unless it is
shown that the use or disposition proposed to be modified is
detrimental to other water users or to the water resources of
the state.94

The water uses in the state are regulated by the water agency operating
in accord with the above quoted section. The act gives no further indi-
cation of the duties of the board in handling any of the water problems
which may arise within a district.
Florida, like other jurisdictions enacting water use acts, sets as
a goal the maximum utilization, development, and conservation of the
water resources of the state. Like other states, the Florida legisla-
ture placed an administrative agency in control of the water resources.
However, where other state legislatures have proceeded to enact a bill
setting up relatively detailed schemes of regulation to provide for the
maximum beneficial use of the water, Florida has granted to the State
Water Conservation Board full power to do whatever is necessary to
accomplish the goal of the statute. Depending, of course, upon the
skill and.imagination of the board members, the method chosen by
Florida for handling water problems may prove most satisfactory and
successful.
The Florida legislation represents an unprecedented grant of
policy making power in the field of water resources to an administra-
tive board. The only limitations imposed on the planning of the board
are the duty to respect existing uses of water and the prohibition
against granting the use of water below certain minimum levels. Ex-
cept for these limitations, the board is given full power to bring about
the maximum beneficial utilization of the water resources of the state.
No procedural directives are given by the legislature.
The Florida lawmakers undoubtedly realized that the great power
granted to the board in the area of water management would be resented
and perhaps abused. To offset the effects of the board's extensive
power, the act provides that before any rule, regulation or order, other
than those concerned with the internal management of the board, de-
partment, or any district, may be promulgated, a public hearing must
be held to determine the merit of the rule, regulation, or order. 95
94. Supra note 10 at 11.
95. Supra note 10 at 11 and text.




-Tf~~ 'C '*------l--------r C-- '. '~~



AND THE LAW 111

The requirement of a public hearing on each rule, regulation, or order
of the board is commendable, but this procedure does not provide any
legal restraint on the activities of the board. The requirement of public
hearing is not a substitute for substantive due process.
D. Limited Control of Water in Other Riparian Jurisdictions
Only five traditionally riparian rights jurisdictions have adopted
comprehensive legislation regulating the use of water or determining
new water rights. 6 However, statutes of a-more limited scope have
been passed in several other jurisdictions to cope with water problems.
Generally, these more limited statutes have been attempts by the legis-
lature to solve particular problems of water management which have
arisen in the state. The following discussion treats certain of these
problems and analyzes the legislative solution adopted in various juris-
dictions.
1. Irrigation
Increasingly, irrigation is being used as a standard method of
farming in the humid sections of the United States. This increasing
use creates problems by interfering with old established uses and with
the public rights to the use of the waters of the state. On the other
hand irrigators have been hindered in their operations by the doctrine
of riparian rights limiting the use of water to the land riparian to the
stream or lake from which it is taken.
Wisconsin initiated a permit system for certain agricultural uses
of surface water in 1935.97 The act grants to the Public Service Com-
mission the power to give permits to applicants for diversion of sur-
face waters to be used for agriculture or irrigation. The only condi-
tions are that there be no injury to other riparians along the stream
and no injury to public rights in the waters. According to an opinion of
the Wisconsin Attorney General issued in 1950,98 permits may be
granted only to riparian owners and then these permits constitute only
permission to divert and not a right to take a certain quantity of water.
The act adopted in Wisconsin does not provide any protection for
the public interest in the beneficial use and development of the water
resources. The only test for allowing a riparian to take water for ir-
rigation or agriculture is that the water be available, i. e., not being
used by the public or by another riparian. In Wisconsin the common
law of riparian rights as to diversions of water has not been developed

96. These five states are Maryland, Minnesota, Mississippi, Iowa, and
Florida which have been discussed previously.
97. Wis. Laws 1935, c. 287; Wis. Stat. Ann. 31.14.
98. 39 Wis. A. G. 564 (1950).








WATER RESOURCES


fully, so the act is important in enunciating legal principles of water
use. As limited by the opinion of the Attorney General, the act adopts
certain modifications of the strict common law rules developed by
courts in other jurisdictions. First, the use of water for irrigation is
recognized and permitted whereas at common law this use was not al-
ways favored. Secondly, riparians may make a use of water on non-
riparian land so long as there is no injury to the use of another riparian
or to the public use. At common law, use of water on non-riparian
land is unreasonable per se and may be enjoined regardless of whether
actual injury occurred to another.
North Carolina, concerned about the increasing use of surface.
waters for irrigation, adopted a statute in 1951 requiring all irrigators
using water from any stream, river, creek, or lake of the state, "in
such an amount as to substantially reduce the volume or flow thereof,"
to obtain a permit from the Department of Conservation and Develop-
ment. 99 There are no further details of procedural or substantive
character except for the directive to the director of the department to
investigate the plans of the applicant for a permit from the viewpoint of
safety and public interest. The statute has not been tested or devel- -
oped by the courts in North Carolina.
2. Acquisition of Water Rights by Public Suppliers
Whenever water supplies become scarce and the population and
economic growth of an area continues, there may be a tendency on the
part of those agencies supplying water to the public to exercise ex-
cessively their power of condemnation and other means of acquiring
water rights. This results in an uncontrolled grabbing of water rights
among the agencies. 100 In New Jersey10 and Pennsylvanial02 public
water supply agencies must submit their plans for acquiring new water
rights to an administrative agency of the state. The purpose of the
agency control is to provide an equitable distribution of the water re-
sources among the various suppliers and private users in accordance
with the best interests of the public. There is very little protection
afforded individual private users of water; however, the statute does
eliminate the reckless buying up of water rights and water supplies by
a few public water supply agencies. This legislation is most effective
in jurisdictions where the public suppliers are a major source of water
for both domestic and industrial users. However, by controlling solely

99. N. C. Stat. 113-8.1.
100. In Collingswood v. Water Supply Commission, 85 N. J. L. 673, 90 Atl.
277 (1914), the court, construing an older version of the statute, ex-
plains the conditions which prompted passage of the act in New Jersey.
101. N. J. Laws 1929, c. 267; N. J. Stat. 58:1-1 et seq.
102. Pa. Laws 1939, c. 842; 32 Pa. Stat. 631 et seq.








AND THE LAW 113

public suppliers in a state where private appropriations and diversions
are frequent, as in an agricultural state, the effect of the legislation
would be minimal.

3. Non-riparian Uses

No other facet of the doctrine of riparian rights has received
greater criticism from persons interested in the maximum beneficial
use of water than the principle that water from streams or lakes can
be used only on land adjacent to the flow of these bodies. Several
states have provided, either as part of a comprehensive water act
or as a separate measure, for the use of water on non-riparian land.
Florida expressly granted power to its water agency to allow diver-
sions to non-riparian land. 103 The Wisconsin act, discussed
in connection with irrigation legislation, deals with the same prob-
lem. 104
nllinois105 in 1945 gave to its Department of Public Works and
Buildings power to grant a permit to any person, firm, or corpora-
tion, not a riparian owner, to use the water from public bodies106
of water within the state so long as there is no interference with
navigation. Like the North Carolina statute mentioned in connection
with irrigation legislation, this Illinois provision is unaccompanied
by details and is set forth in relatively unrelated context with other
powers of the Department of Public Works and Buildings. Whether
permittees under this act possess a water right which will be recog-
nized by the courts is not clear. In view of the rather obscure and
incomplete formulation of this provision, it is doubtful that it will
serve as a very substantial basis for better water use and manage-
ment in Illinois.





103. Supra note 10 at 8.
104. Supra note 97.
105. Ill. Laws 1945, p. 380; Ill. Stat. Ann. c. 19, 65.
106. Ibid. The Illinois statute states:
A public body of water is that water capable of being navi-
gated by watercraft, in whole in in part, for commercial uses
and purposes or which were capable of being improved
and made navigable, or that connect with or discharge
their waters into navigable lakes or rivers, together with
all bayous, sloughs, backwaters, that are open to the
navigable water and directly accessible thereto.








114 WATER RESOURCES

IV. THE GROUND WATER PROBLEM
A. Comprehensive Ground Water Codes
1. General Observations
Florida, 107 Iowa, 108 Kansas, 109 Maryland,110 Minnesota, 111
and Utah112 generally have included the regulation of their ground
water resources with that of surface water, thereby forming one water
code. Although possessing detailed surface water regulation, other
jurisdictions have enacted entirely separate codes to control their
ground water resources. In these latter states, the burden of integra-
tion of the total water resource is left to the discretion of the adminis-
trator, and problems caused by conflicts between users from the dif-
ferent supplies must be solved by the courts. Various reasons can be
ascribed for the enactment of a distinct ground water code. Extensive
control of ground water is relatively recent while statutory regulation
of surface supplies has existed for many years. In the legal mind,
there has existed a separation of surface and ground water regulation
dating back to the common law decision of Acton v. Blundell1'3 in
1843. Finally, certain facets of the ground water problem demand
special treatment and consideration differing from the mode of surface
stream and lake administration.
These are but a few of the reasons which may be given to explain
why, in 1927, New Mexicoll4 and Oregon115 enacted comprehensive
ground water codes. These states were followed by Nevada in 1939, 116
Washington in 1945, 117 Wyoming in 1947,118 arid Arizona in 1948. 119


107. Supra note 10.
108. Supra note 9.
109. Kan. Gen. Stat. 1949, supra note 3.
110. Supra note 6.
111. Supra note 7.
112. Utah Code Ann., supra note 3.
113. 12 Mees. & W. 324 (1843).
114. N. M. Laws 1927, c. 149. The New Mexico court in Yeo v. Tweedy,
34 N. M. 611, 286 Pac. 270 (1929) held this statute unconstitutional on
technical grounds. N. M. Stat. 75-11-1 et seq. (1953) were enacted
in 1931 satisfying the technical requirements.
115. Ore. Laws 1927, c. 410. In 1955 Oregon completely altered its code
to cope with changing conditions and advanced information. See Ore.
Rev. Stat. 537.505 et seq. for present law.
116. Nev. Rev. Stat. 534.010 et seq.
117. Wash. Rev. Stat. 90.44.010 et seq.
118. Wyo. Comp. Stat. 71-401 et seq. (1955 Supp.); cf. Note, "Rights of
Wyoming Appropriators in Underground Water," 1 Wyo. L. J. 111
(1947).
119. Ariz. Rev. Stat. 45-301 et seq.








AND THE LAW


Oklahoma passed its ground water code in 1949;120 Idaho followed in
1951121 and Colorado in 1957. 122 These states are all located in the
western part of the country where water shortage problems have tra-
ditionally presented themselves. In ground water regulation as in
stream and lake control, the western legislatures are the pioneers to
point the way for their eastern neighbors.
In this section, after investigating the types of ground water cov-
ered by the acts and the exceptions or exemptions, an analysis of vari-
ous facets of the specific codes follows. The ground water codes, hav-
ing been enacted against a background of regulation of streams and
lakes, contain many provisions similar to the earlier prior appropria-
tion statutes. Although the similar provisions are mentioned, attention
is given primarily to provisions evidencing a departure from the tra-
ditional appropriation type of regulation or representing an effort to
cope with novel problems presented by the peculiar nature of ground
water.
2. Application of Regulations
In general, the codes apply to all types of ground water, but ex-
ceptions can be noted. New Mexico concerns itself only with under-
ground streams, channels, artesian basins, and reservoirs or lakes
having reasonably ascertainable boundaries. 123 The Washington legis-
lation covers "water beneath the surface, the existence and boundaries
of which may be reasonably established or ascertained. "124 Although
the language is limiting, it can be construed to include all percolating
waters. The Washington act excludes such water as is tributary to a
surface stream or lake. This provision is an effort to avoid conflicts
arising between underground and surface water appropriators and al-
lows conflicts to be handled under the surface water code. Arizona and
Oklahoma exclude all underground streams from regulation under their
ground water acts. 125 Arizona, by court decision, applies its surface
water regulation to underground streams, 126 whereas in Oklahoma it
is not clear how underground streams are controlled. Oregon, in its
1955 code, excepts capillary moisture, but otherwise covers all

120. 82 Okla. Stat. Ann. 1001 et seq.
121. Idaho Code Ann. 42-226 et seq. (1957 Supp.).
122. Colo. Laws 1957, c. 289. South Dakota employs a separate act to
control the use of ground waters but it does little more than apply the
doctrine of prior appropriation and the procedural aspects of the sur-
face water act to the handling of the ground water resources of the
state. S. D. Laws 1955, c. 431, 1.
123. N. M. Stat. 75-11-1 (1953).
124. Wash. Rev. Code 90.44.010.
125. Ariz. Rev. Stat. 45-301(4); 82 Okla. Stat. Ann. 1002.
126. Pima Farms 'Co. v. Proctor, 30 Ariz. 96, 245 Pac. 369 (1926).








WATER RESOURCES


underground water expressly including those waters beneath the bed of
streams, lakes, and reservoirs. 127 The inclusion of the subflow of
surface waters with ground water is a departure from the common law
thinking which considers subflow as part of the surface body. However,
since the code protects the rights of prior surface appropriators
against subsequent ground water users, 128 the change-of classification
seems to be in administration rather than in substantive legal doctrine.
No statutory water regulation can be considered complete until all
the water resources of the state are brought under the jurisdiction of
the water administrator or agency. A regulating measure covering
ground water must include all ground waters in order to secure effec-
tively the intelligent management of the supply. Jurisdiction over the
entire water resource of a state permits the collection of valuable in-
formation by the water board and facilitates the formation of a compre-
hensive water program required to deal with increasing water uses in
the state. The more recent codes, 129 by including all ground water,
complete a well-rounded and comprehensive water code when unified
with the surface water control under one administrator.
A particular code may be complete in its coverage of various
classes of ground water, but typical of all water codes is the exemption
or exclusion of certain uses from the operation of the statute. There
are three chief reasons for excluding some uses. First, the use may
consume such a small quantity of water in relation to the total use that
regulation only places an unnecessary burden on the controlling agency.
Secondly, regulation may be valuable, but administrative cost and time
require exclusion. Thirdly, since water, like air, is so vital to man's
existence and always has been considered free, control by government
is unpopular. By exempting certain classes of persons, much opposi-
tion to the water code may be eliminated. Domestic uses uniformly
are exempted. This is accomplished by excluding."domestic use,"130
by exempting certain descriptively defined uses, 131 or by excluding a
quantity of water from regulation. 132 Commonly appearing is a com-
bination of two or more of these methods. 133 The use of water for
stock watering purposes is also commonly exempted. 134 This exemp-
tion in western states may well be added to eliminate a great bulk of
opposition to the code from one of the state's most powerful water

127. Ore. Rev. Stat. 537.515(2).
128. Id. at 537.615.
129. Idaho in 1951; Oregon in 1955; Colorado in 1957.
130. 82 Okla. Stat. Ann. 1002.
131. Supra note 124.
132. Nev. Rev. Stat. 534.180.
133. Supra note 127 at 537.545; Colo. Laws 1957, c. 289, 18.
134. Supra note 123; Wyo. Comp. Stat. 71.407; Colo. Laws 1957, ibid.








AND THE LAW


users. However, although stock watering may consume a large quan-
tity of water, when compared with that used for irrigation, mining, or
industry, the quantity is relatively small. In Oregon and Washington a
single industrial user is entitled to use up to 5,000 gallons per day
without being affected by the act. 135 Idaho allows a blanket exclusion
of 13, 000 gallons per day for any purpose. 136 Finally, the legislature
of Arizona has taken an affirmative approach and placed controls only
on irrigation wells with a capacity over 100 gallons per minute. 137
Although the theoretical reasons for exempting certain uses are the
same from state to state, when applied to the water situation existing
within a particular state, various and different exemptions will be re-
quired.
Excluding a use from regulation may be necessary and prudent.
These uses should not be overlooked, however, as a source of infor-
mation for the water agency. Valuable data can be obtained in the
drilling and use of a well although it produces very little water. The
realization of this fact has prompted permitting the water agency to
demand reasonable and factual information from exempted users re-
garding their wells. 138 New Mexico requires all exempted users to
acquire a permit although the act is only perfunctory. 139 By allowing
a means of gathering information from exempted users, the states are
assured well-informed agencies capable of carrying out their regula-
tory duties consistent with the factual water situation in the state.
3. Ground Water Areas
In the administration of surface stream and lake appropriation, the
stream system, consisting of the main body of water and its tributaries,
furnishes an easily ascertainable unit in which users may be regulated
and rights may be determined. Ground water units or basins are not
readily ascertained and before efficient administration of any system of
water rights can be effected, boundaries of the unit or basin must be
determined. The majority of ground water codes provide for area de-
terminations. In Oklahoma and Oregon the basins are determined by a
court hearing, 140 in Arizona by an administrative public hearing, 141
and in Colorado, Idaho, and Wyoming by the agency in charge of water

135. Supra note 127 at 537.545; supra note 124 at 90.44.010.
136. Supra note 121 at 42-230(d).
137. Ariz. Rev. Stat. 45-301(14), 45-302, 45-305.
138. Supra note 121 at 42-230:; Nev. Rev. Stat. 534.180.
139. Supra note 123.
140. Supra note 130 at 1010; Ore. Rev. Stat. 537.690. Oregon requires
only an administrative public hearing to designate a court determined
basin as a critical area. Supra note 127 at 537.735.
141. Supra note 137 at 45-309.








WATER RESOURCES


administration. 142 Due to the uncertainty of the determination, provi-
sion is made for changing the boundaries whenever additional informa-
tion shows the original decision to be undesirable.
The Wyoming code provides for the determination of ground water
areas solely for the purpose of ascertaining relative rights within the
area. The other states which provide for area administration do not
anticipate the division solely for purposes of settling the issue of rela-
tive rights within the area. Areas are designated when they are in need
of special administration and regulation due to water depletion. Gen-
erally, these areas designated for administration are termed "critical
areas." Oregon provides for the designation of "ground water areas"
to establish relative rights, water levels, and modes of diversion, and
also for the determination of "critical areas" in which the administra-
tor is given wide powers. 143 Before a "critical area" is designated,
the doctrine of prior appropriation or a common law theory is applied
to the ground water resources as a whole throughout the state. The
criteria for determining a "critical area" vary from state to state. A
few of the statutes require that the area be in need of administration, 144
or that the area does not have "sufficient ground water to provide a
reasonably safe supply for irrigation of cultivated lands in the basin at
the then current rates of withdrawal,"145 or that the area lacks ground
water to insure a reasonably safe supply for domestic and municipal
uses, industry, irrigation, recreation and other uses at the then cur-
rent rates of withdrawal. 146 Oregon provides four basic norms, any
one of which will justify the creation of a "critical area. "147 If it is
found that there is an excessive decrease in the water level, substan-
tial interference of two or more users with one another, overdrawing
of the average supply, or pollution of the supply, the area is designated
as critical.
After a "critical area" has been designated, special powers are
granted to the water agency in some states to regulate uses of water
within the area while in other states the criteria for determining the
granting of new permits is changed in the designated area. Oregon
and Nevada give the administrator unprecedented powers in handling
and regulating the available water resource. 148 In Idaho, when an

142. Supra note 121 at 42-233a; Wyo. Comp. Stat. 71-272 (1955 Supp.);
Colo. Laws 1957, c. 289, 3.
143. Supra note 127 at 537.670, 537.730.
144. Supra note 132 at 534.030.
145. Supra note 121 at 42-233a; Ariz. Rev. Stat. 45-301(1).
146. Supra note 130.
147. Supra note 124 at 537.730 to 537.740.
148. See infra Part IV, A 5 for a discussion of the powers of administra-
tion granted to water agencies in dealing with critical areas.








AND THE LAW


application is made for a permit to use water from a critical area, a
public hearing is provided at which interested parties may object to the
granting of the permit. 149 This is to be contrasted with the absence of
a public hearing in areas not designated as critical. Colorado closes
the area on a year to year basis, to any further ground water develop-
ment. 15 Arizona requires that for an irrigator to acquire a permit to
use water from a critical area, (1) the use must be on the land where
the well is located and (2) the land to be irrigated must have been ir-
rigated on June 24, 1948 or at some time during the five years prior
thereto. 151
4. Maintenance of Ground Water Level
Water on the surface of the land in streams or lakes is easily ac-
cessible. If the amount of water in the stream or lake decreases, the
operation of lowering an intake pipe or ditch is not very expensive or
time consuming. Also, the amount of water taken from these sources
in one year does not noticeably affect the supply the following year.
These statements cannot be applied to ground water supplies. Ground
water is costly to acquire. If the water level drops, the problem of
going deeper into the earth to reach it is serious. Not only more
drilling, but greater pumping facilities may be needed. Furthermore,
due to the very slow movement of water through the earth, it is possi-
ble to withdraw a quantity of water from an area in one year which will
require several years or decades to replenish. This latter phenomenon
is caused by a lowering of the water table brought about by a pumping
of water in excess of the natural recharge in the area. In considering
the problem of the maintenance of a ground water level, several con-
flicting propositions must be reconciled. The shallow well user is
relying on a high water level and will be injured economically if re-
quired to drill deeper or acquire a larger pump. Into this group fall
the majority of domestic users. The full economic growth of a state
may demand a lowering of the water table to a level substantially below
the shallow wells. Economic security for investment demands the es-
tablishment of a relatively static minimum level below which the water
will not be permitted to sink.
The questions facing the legislature in handling the issue of a set
ground water level generally can be narrowed to two. First, what
should be done about subsequent wells which lower the water level
thereby interfering with prior users? Secondly, is a minimum ground
water level necessary and, if so, how should it be established and

149. Supra note 121 at 42-233a.
150. Colo. Laws 1957, supra note 142.
151. Supra note 137 at 145-314.








WATER RESOURCES


maintained? Much effort has been devoted in the codes to answering
the second question but the first is almost always left to speculation or
court decision. By lowering the level so that prior users cannot ac-
quire water in the same manner as they have been doing, the question
of the water right acquired by appropriation of ground water is raised.,
Is it a right to take a certain amount of water from the ground, or is it
a right to have the level maintained so as to furnish a certain amount
of water at a specific place and under sustained conditions? This issue
is not decided by the statutes directly, and the answer is left to impli-
cation. There are three possible solutions to the problem. First, a
new user may not interfere with a prior user in any respect. This in-
terpretation would stunt the advancement of the state, tying its develop-
ment in the ground water area to outmoded scientific methods of diver-
sion and established economic investments. The Colorado and Idaho
legislation use language indicating that this may be the rule in those
states. 152 On the other hand, when speaking of the determination of
relative priority of rights, Idaho provides that prior appropriation
shall be the criterion, but "a reasonable exercise of this right shall not
block economic development of underground water resources. "153 This
latter section may well give to the Idaho administrator the power to
avoid the pitfall of freezing the water level to satisfy prior users. The
second solution to the problem of the nature of prior rights to existing
water levels greatly limits the extent of the right. It views the ground
water appropriation right as solely a right to take a certain quantity of
water from the ground. The continuance of certain pumping levels or
pressures is not part of the right acquired by a beneficial appropria-
tion. Although in no way certain or clear, this seems to be the think-
ing implied in the Oklahoma legislation. Water for appropriation is
available in Oklahoma so long as the safe yield level established by
court decision is maintained. 154 By allowing continued pumping in an
area and denying to prior users the right to have a certain level main-
tained, a state is providing for the fullest utilization of its ground water
resource. Nevertheless, the practice of' allowing continued new pump-
ing cannot remain unchecked. It must be connected with the establish-
ment of a safe yield level as in Oklahoma. 155 A third solution curtails
unlimited exploration and pumping of ground water and grants to the

152. Colo. Laws 1957, c. 289, 5; Idaho Code Ann., supra note 121 at 42-
237a reads: "Water in a well shall not be deemed available to fill a
water right therein if withdrawal therefrom of the amount called for
by such right would affect... the present or future use of any prior
surface or ground water right...."
153. Supra note 121 at 42-226.
154. Supra note 130 at 1010, 1013, 1015.
155. Ibid.








AND THE LAW


prior user a certain degree of stability and security in the maintenance
of water levels. In the Oregon and Washington codes, language is used
in .the section concerning the granting of permits which indicates the
middle ground approach The Oregon section states that no permit
shall be granted if it will result in depriving prior users of their water
right or "unduly interfere" with existing rights in wells. 156 The
Washington code, after providing that a subsequent permit will not be
granted if there will be an "injury" to a vested right, says that there
is to be no draw beyond the capacity to yield a "feasible" pumping lift
or beyond "feasible reduction" of pressure. 157 The effect of this mid-
dle ground approach is to assure the prior user that only a reasonable
interference with his water use will be permitted under the statute. It
does permit, however, a certain degree of interference with prior
uses, thus assuring the possibility of future development in the area.
In any state adopting an underground water code, serious consider-
ation must be given to the question of the nature of the ground water
right. Once a determination is made, clear and adequate definition of
the right should be set forth in the statute for the benefit of the user
and the water administrator. At common law, the,English rule of
capture allows unlimited digging and pumping regardless of an inter-
ference with the supply of others. The American rule permits all
users to make a reasonable use of the water. Neither the English rule
nor the American rule requires the maintenance of a static level of
water for the benefit of prior users.
The second problem which faces the legislature in determining the
issue of water levels is whether minimum water levels should be es-
tablished and how they should be determined and maintained. Since
pumping of ground water in excess of the natural recharge will cause
the water level to drop, continued pumping will place the level at a
distance where it becomes economically unfeasible to continue pumping
operations. In order to secure the greatest benefit from ground water
resources, a minimum level must be established within which it is .
economically feasible to pump water, and this level must be maintained
by limiting withdrawals to the amount of natural or artificial recharge.
This method allows excessive pumping until the minimum level is
reached and then limits the amount of pumping to equal the recharge.
In Colorado, New Mexico, Arizona, and Wyoming, no provision is
made for the setting of minimum levels. Nevada does not provide for
the determination of levels but gives to the administrator wide powers
to alleviate ground water depletion. The Washington code speaks of
maintaining a "safe sustaining yield" for prior users but the effect and

156. Supra note 127 at 537. 615.
157. Supra note 124 at 90.44.070.








122 WATER RESOURCES

meaning of this phrase are not clear or evident. 158 Idaho gives the
state reclamation engineer the power to determine water levels and
prohibits the granting of any pumping which withdraws beyond the
"reasonably anticipated" average rate of natural recharge. 159 These
provisions apparently grant to the Idaho engineer power to provide for
the fullest practical development and utilization of the ground water of
the state. A similar situation is found in the Oregon legislation which
requires levels to be determined by the court. 160 The state engineer
then has the duty of maintaining these levels. In Oklahoma, there is a
court determination of the "safe yield" and annual recharge of particu-
lar basins161 and the state engineer applies the principle of prior ap-
propriation to maintain the "safe yield. "162 Whether the language
"safe yield" means a quantity of water equal to the annual recharge or
whether it anticipates the determination of a minimum level as well,
is not evident from the statute. In all of the states which set either a
minimum level or a safe yield quantity, the doctrine of prior appro-
priation is applied by the administrator to preserve the level of safe
yield.
One important factual situation presents itself which will not find
solution in an administrative procedure that determines a reasonable
water level and then maintains this level. In certain ground water
basins, there is no recharge. Other basins have a natural discharge
which equals the recharge and remains equal even though withdrawals
are made through pumping. In these areas, any pumping will result in
a permanent lowering of the level of the water and the eventual destruc-
tion of the water basin as an economically feasible water source. Con-
tinual appropriations will quickly deplete the water supply rendering
worthless the rights of prior investors. The water codes do not pro-
vide an answer for this problem. In such a situation, the basin should
be closed to further appropriations at a time when the water remaining
will provide a yield sufficient only to supply the existing users for a
period of years adequate to insure their economic investment. The
handling of the problem in this manner calls for the enlarging of the
concept of prior appropriation by demanding a deviation from the ab-
solute principle, "first in time, first in right, forever. "163

158. Supra note 124 at 90.44.130.
159. Supra note 121 at 42.237.
160. Supra note 127 at 537.665 to 537.680.
161. Supra note 130 at 1010.
162. Supra note 130 at 1015.
163. Harris, Water Allocation Under the Appropriation Doctrine in Lea
County Underground Basin of New Mexico, a paper presented at the
1956 Symposium on the Law of Water Allocation in the Eastern United
States, conducted by the Conservation Foundation.








AND THE LAW


5. New Administrative Powers
In several of the ground water codes considered in this section,
there is evidence of a trend toward the granting of greater discretion-
ary powers and duties to an administrator than are found in surface
water regulations. This is necessitated largely by the nature of ground
water as it differs from that of surface bodies and may be due partially
to dissatisfaction with the theory of prior appropriation in its rigid ap-
plication. The power to set ground water levels in Idaho is slight evi-
dence of this trend. Greater evidence is found in the Nevada code
which provides that, when in the judgment of the state engineer ground
water is being depleted, he may designate preferred uses, issue tem-
porary permits instead of the customary right in perpetuity, limit the
depth of domestic wells, and deny permits to applicants who could ob-
tain a supply of water from a water district or similar supplier. 164
Oregon, in its recent code of 1955, has granted to the state engineer
unprecedented discretion in handling the problem of water allocation in
critical areas. Once designation of the area has been made, the engi-
neer may: (1) close the area to further appropriation; (2) determine
permissible withdrawals for each day, month, or year and apportion
the amount among users in accord with relative dates of priority of
their respective rights; (3) set preferences without regard to relative
priorities, first for domestic and livestock uses, then for other uses
as he sees fit; (4) cut down the consumption by any one user; (5) con-
trol the total consumption by the owner of more than one well; (6) pro-
vide for the elimination of pollution of the underground waters; and
(7) set up a system of rotation. 165 Although the granting of these
powers represents a change in the application of strict prior appropri-
ation doctrine, it is more important as manifesting a realization of the
necessity for granting to the engineer ability to cope with unknown and
changing conditions. Legislation which binds the state development to
a preconceived notion of physical phenomena which cannot accurately
be forecast hinders the administrator in treating specific problems.
Thereby, the advancement of the state is thwarted rather than assisted.
Further, by straitjacketing the activity of the administrator, the legis-
lature is subjecting any slight deviation, necessitated by physical con-
ditions, to immediate court intervention. Although legislation which
limits the discretion of the administrator is most disadvantageous in
the case of ground water, a code which permits activity at the whim of
the administrator is also undesirable. A middle ground must be
reached. For the most part, the present codes have remained on the
side of conservatism in this matter.
164. Supra note 132 at 534.120.
165. Supra note 127 at 537.735. See Utah Code Ann. 73-5-1 (1957 Supp.).


...M








WATER RESOURCES


6. Conclusion
The continuing adoption of comprehensive ground water codes re-
flects the increasing need for regulation of this source of water supply.
The numerous amendments to the codes reflects the great amount of
activity and the advance of technical skill and information in the area.
In the light of new experience, an ever-increasing number of criticisms
can be levied against the present codes adopted only a short time ago.
Nevertheless, they represent a pioneering effort to deal compre-
hensively with one of man's most important sources of water. They
serve immeasurably as a guide for other states in this field and should
be examined most thoroughly before any legislation of like nature is
undertaken by other jurisdictions.
B. Statutes in the Field of Ground Water
1. Statutory Prohibitions
When faced with a specific problem in the area of ground water,
the easiest method for the law-making body to cope with the situation
is to enact prohibitory legislation. An isolated statute will serve as a
stop-gap eliminating the particular evil for a time without an undertak-
ing of major legislative action in the field. In many states, only iso-
lated problems have presented themselves, and no legislation other
than independent, unrelated measures have been needed to remedy the
situation. In states having a constant, high ground water level with no
great foreseeable demand for increased supplies, the stop-gap legis-
lation has proved very satisfactory in handling the particular problem
which has arisen. Statutes which appear frequently are those pro-
hibiting the wasteful flow of artesian well waters, 166 or making unlaw-
ful the pollution of a source of ground water. An example of a less
common provision is that enacted in Delaware prohibiting the use of
private wells where access to a public supply is available unless the
board of health approves the private supply. 167 Many states require
the filling of well diggers' logs for the purpose of perfecting the store
of statistics and information in the hands of the government, 168 while
some require the registration and licensing of well drillers. 169
Each of the states has enacted individual statutes for its own
peculiar problems. In jurisdictions where detailed ground water codes

166. E.g., Cal. Water Code 300 et seq.; Neb. Rev. Stat. 46.282; Tex.
Civ. Code 7605.
167. Del. Code Ann. Tit. 16, 7931.
168. Conn. Gen. Stat. c. 195, 2118(d) (1955 Supp.); Mont. Rev. Code 69-
1311; Ore. Rev. Stat. 1521.05; Va. Code 10-98.
169. Wis. Stat. 162.01; N. J. Stat. Ann. 58:4A-4.








AND THE LAW


have been formulated, the particular sections discussed above are an
integral part. In states lacking a complete ground water code, piece-
meal legislation represents the extent of their activity in the field.
Statutes which provide only for the prohibition of specific acts may be
adequate to cope with the specific problem faced by the law-makers,
but they add very little to the future planning and development of the
state. On the other hand, statutes which provide for the collection of
information pave the way for enlightened solutions to new problems and
enable the legislature to plan for the future of the state, avoiding there-
by many pitfalls which may result from waiting until a serious situation
has arisen before action is taken.
2. Partial Affirmative Regulation
Depending upon the severity of the ground water problem in a par-
ticular state, legislative action may move toward partial affirmative
control and regulation instead of continuing the list of prohibitory
statutes. In Arkansas, a statutory method is provided whereby the
domestic user may require the sealing of unused flowing wells on
another's land when it is found that there is injury to the domestic sup-
ply. 170 This section is not unlike the court developed rule in some
jurisdictions which permits a well user to prevent waste by another
which interferes with the user's supply.
Montana, which lacks a comprehensive ground water code, pro-
vides that at the instance of the state engineer or of interested land-
owners, hearings may be held to determine whether artesian waters
are being put to a beneficial use by certain individual users. 171 This
legislation, not only prevents absolute wasting of water as does the
Arkansas statute, 172 but also provides a method for maintaining and
working toward a beneficial use of the water. The concept of "bene-
ficial use" is the same as that employed in the regulation of surface
bodies of water and ground waters where comprehensive codes have
been enacted. Although the terminology "beneficial" lacks perfect
definition, it adds to the notion of use the element of reasonable effi-
ciency. The provision allowing hearings at the instance of interested
landowners introduces the "watchdog" type of legislation which can be
of valuable assistance to the administrator in charge of preventing the
waste of water or providing for its beneficial use. No type of legisla-
tion which undertakes to regulate such a broad field as the ground
water resources of an entire state can succeed in its purpose without
the education and cooperation of the people of the state.

170. Ark. Stat. Ann. 21.1101 et seq. (1956 Rep. Vol.).
171. Mont. Rev. Code 89-2903.
172. Supra note 170.








WATER RESOURCES


Michigan, in addition to preventing the waste of artesian waters,173
allows a grieving water user to enjoin the unreasonable or unnecessary
uses of artesian waters by another. 174 Upon the court falls the duty of
determining the quantity of water which the user at fault may reasonably
use. This decree is subject always to be reopened when changing cir-
cumstances present themselves. The Michigan legislation purbs the
harsh English rule of ground water, which permits the well owner to
waste completely all water found beneath his land, and substitutes
therefore the criterion of reasonable use which was first applied to
ground waters by the highest court of New Hampshire. The determina-
tion of a quantity of water to which the users are entitled under the
criterion of reasonable use not only deviates from the old English rule
but also adds to the American rule of reasonable use. Other than a
pronouncement that a particular use is reasonable or unreasonable,
the courts usually have not entered a concrete ruling on the amount of
water which each person may use. This aspect of the statute is com-
parable in practice to the administration of ground waters under the
doctrine of correlative rights whereby the amount of water to which
each landowner is entitled is determined and fixed by the courts. How-
ever, the correlative rights doctrine uses the extent of individual land
ownership as the yardstick for determining the amount of water avail-
able for each user. Under the Michigan statute, the criterion is rea-
sonable use of the water and this issue may be reopened at a future
date. A decree under the doctrine of correlative rights is stable and
secure since it is based on land ownership. However, since the
Michigan determination of the amount of water which may be used is
based on a criterion of reasonable use and is subject to be re-
examined in the future, it affords only a limited degree of stability
and certainty.
Arkansas, Montana, and Michigan have limited their legislation to
artesian waters only, but other states, in placing controls over their
ground waters, have not limited the scope of their enactments to this
particular type of water. New York has delineated four counties within
the state as areas in which there is danger to ground water supplies
from salt water intrusion. Before anyone may take over 100,000 gal-.
lons per day from wells in these counties, he must receive the ap-
proval of the Commission of Water Power and Control. This approval
is subject to limitation or revocation to protect the supply from salt
water pollution. 175 New Jersey has placed a similar limitation on
ground water uses under the control of the Division of Water Policy

173. Mich. Stat. Ann. 18.591.
174. Ibid.
175. N.Y. Consv. Law 521.








AND THE LAW


and Supply. 176 However, instead of a designation of counties or areas
by the statute in which there is a danger of salt water pollution, the act
Sallows the division to determine the application of the regulatory provi-
sions in particular areas. The regulation provides that a permit is re-
quired for use of water in excess of 100,000 gallons per day. A refusal
of the division to grant a permit entitles the applicant to an appeal as of
right to a supreme court of the state.
There is no difference between regulation of the ground water use
for the purpose of keeping out salt water and regulation for the purpose
of maintaining a constant safe yield. Both have as their function the
protection and preservation of ground water supplies by means of limi-
tations on individual pumping. But, while the regulation in western
states to insure a safe yield provides a comprehensive system of pro-
cedure and rights determinations, the regulations in eastern states to
prevent salt water intrusion gives to an agency the power to grant or
refuse a permit and provides no balancing of rights between users.
i Should the problem of salt water intrusion ever become so acute that
regulation of smaller uses would be necessary and control of established
pumps would be required, a system as comprehensive as that found in
western ground water codes would have to be enacted to cope with the
problem of individual rights and uses.
The Department of Conservation in Indiana has been granted pow-
ers over all underground water similar to those exercised in New
Jersey by the water agency. 177 However, the purpose of the regulation
is different. The problem in Indiana is not salt water pollution but a
decreasing water level and the injury caused thereby to the economy.
The department is empowered to designate areas where, in its opinion,
pumping exceeds the average recharge and the public interest is in-
volved. In any area designated as critical, no new diversion of over
100,000 gallons'per day may be initiated, and no old user may increase
an additional quantity of over 100,000 gallons per day without the per-
mit of the department. The only exemption in the act is for public
utilities which supply a governmental unit, such as a city. The depart-
ment is given the power to grant or refuse a permit requested in a
Critical area and the criteria for their determination are set forth as
follows:

In granting or refusing a permit the department shall consider
the effect the withdrawal of additional ground water from the
restricted use area will have on future supplies in the area,
what use is to be made of the water, how it will affect pres-


176. N.J. Stat. Ann. 58:4A.
177. Ind. Stat. Ann. 27-1301 et seq. (1957 Supp.).








WATER RESOURCES r


ent users of ground water in the area, whether the future natu-
ral replenishment is likely to become more or less, and how
the withdrawal of additional ground waters will affect the health
and best interests of the public.178

The above list of criteria contains most of the elements which have been
included in western ground water codes. In the western codes, the in-
terest of present users is protected by providing that subsequent appli-
cants may not interfere with prior users while the issue of natural re-
plenishment is evidenced in the setting of safe yield quantities or water
levels. The important difference between the approach taken by
Indiana and that of western states is that the Indiana legislation merely
directs the department to consider the various criteria. In western
states, except in certain instances involving critical areas, 179 provi-
sions for public hearings, appeals, determination of rights and their
preferences are set forth in the statute depriving the administrator of
the wide discretion and power given by the Indiana legislation. The
Indiana legislation was enacted in 1951 and does not appear to have
been challenged.
Texas has taken a novel approach to ground water administration
by providing for the formation of underground water conservation dis-
tricts to regulate percolating water supplies within specific areas. 180
Under the heading of waste prevention, the districts are empowered to
provide for the beneficial use of water and for its protection from pol-
lution. Permits are required for wells producing over 100,000 gallons
of water per day, but the only criteria for refusing a permit is that the
water will not be used for a beneficial purpose or that the pumping will
result in pollution of the supply. In view of certain language of the
statutel81 prohibiting the restriction of production from any well pro-
ducing less than 100,000 gallons per day, it is not clear whether the
general powers of the districts to prevent waste apply to wells of this
smaller size. Efficient regulation of the ground water resources in
any particular district would demand control over non-beneficial uses
from all wells and not only from those of great capacities. No provi-
sion is made for administrative determination of relative rights, and
no system of rights is imposed or can be imposed under the statute. 182
As a result, court decisions of Texas are still determinative of the law

178. Id. at 27-1305.
179. Supra text at Part IV, A3.
180. Tex. Civ. Stat. Art. 7880-3c. Cf. Ill. Stat. Ann. c. 111 2/3, 228,
where powers similar to those granted by the Texas statutes are given
to the local "Water Authorities" in Illinois.
181. Id. at Art. 7880-3c sub. D4c.
182. Id. at Art. 7880-3c sub. D.








AND THE LAW 129

of underground percolating waters as applied to rights between individ-
ual users. The local administrative approach chosen by Texas lacks
the benefits which are obtained from centralized management. On the
other hand, since the interest and cooperation of the users are neces-
sary for the successful working of a water control act, local district
administration has strong arguments in its favor. A combination of
central and local administration would appear to possess the greatest
benefits of any system proposed.

V. CONCLUSION
The statutes discussed in this paper represent the bulk of legisla-
tion in the area of water appropriation law although many states are
working in this field striving for satisfactory legislative proposals to
solve their peculiar water problems. The western prior appropriation
statutes as a group represent the most complete body of statutory regu-
lation in either the surface or ground water field. Legislative activity
in these states has generally tended to operate within the existing
statutory patterns. Characteristic of the western regulation is the
separation between the surface water and the ground water resources
giving rise to two comprehensive pieces of legislation in the field of
water use.
In those states which traditionally have followed the doctrine of
riparian rights, the legislation in the field of water use has repre-
sented almost always a change from the riparian rights theory. Of the
five states which have been discussed as having a comprehensive
statutory control of their water resources, Maryland and Minnesota
may be considered conservative in providing for a relatively limited
amount of state regulation, while Mississippi, Iowa, and Florida may
be characterized as more radical in their handling of the system of
riparian rights. Except for Mississippi, a noticeable trend in the
enactments of these states is their inclusion in one act of both surface
and ground water regulation.
Piecemeal legislation or legislation aimed at correcting one par-
ticular problem will continue to exist in the area of water control as
long as the states reason that they can safeguard their water supply
and handle their water problems without setting up extensive state
controls. Comprehensive legislation in which the state assumes
management of the water resources is unpopular in areas where water
has always been considered as free to those who could obtain access to
it. This antipathy probably will only be overcome when the problems
of the state in the field of water resources become acute.




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