Title: The State's Policies Regarding Water Resources
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 Material Information
Title: The State's Policies Regarding Water Resources
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 13
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003160
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


S. 2 -

The State legislation now in force is embodied in the General Statutes 4

of North Carolina (hereinafter designated N.C.G.S.) except for certain special

and local laws that have been enacted by the State Legislature with respect

to particular localities, watercourses, persons, or circumstances, I~over,

the States .Constitution, Art. II, sec. 29, which became effective in 1917,

prohibits the Legislature's enactment of local, private, or special acts or

resolutions relating, among other things, to nonnavigable streams, to ferries

or bridges, or to health sanitation, and the abatement of nuisances. The

writer has made no detailed analysis of the number or nature of special and

local laws that may affect water rights, although some examples are included.

The discussion that follows deals with several of the features of the

applicable water laws in North Carolina but it is not exhaustive in these

respects,. Supreme Court decisions have developed from the English common law,

but there have been a number of modifications and some outright repudiations

of old commonn law principles. /

The State's Policies Regarding Water Resources

A rather broad statement of policy was enacted by the Legislature in

1955 regarding the utilization of water resources in 'North Carolina. It

declares that:

"the general welfare requires that the water resources of the State
be put to beneficial use to the fullest extent: of which they are

I/ N.C.G.S. sec. 4-1 provides that : "All such parts of the common law as
were heretofore in force and use within this State, or so much of, the common
law as is not destructive of, or repugnant to, or. inconsistent with,, the
freedom and independence of this State and the form of government therein
established, and. which has' not been otherwise provided for in whole or in
part, not abrogated, repealed, or become obsolete, are hereby declared to be
in full force within this State." This legislation has been construed,
among 6:ther cases;,in-Riuse v. Cityof Kinston," 188 N.C. 1, 123 8-E. 482
(1924). '(Se9' Groundwaters, post.)







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capable, and that the waste or unreasonable use or unreasonable method
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 public interest." 2/

The immediate purposes of the act in which this appears, however, were

limited primarily to (1) the creation of a Board of Water Commissioners to

study the water resource situation and problems and make recommendations, and

(2) the creation of certain powers to act in emergency situations with respect

to public water supplies. (See Condemnation and Related Proceedinges post. The

effect of this statement of policy upon other (existing and subsequent)

legislation, and upon subsequent court decisions, is problematical. But it

is doubtful whether it will have any very substantial effect on the State's

water law until it is implemented by additional legislation for this purpose.

Statements of policy also have been enacted in regard to certain seg-

ments of the overall water resource problems of the State, such as pollution

control and protection of public water supplies and fish and wildlife,--

all of which have been accompanied by certain implementing legislation.

For example, legislation relating to "Stream Sanitation and Conservation,"

provides that:

"It is hereby declared to be the policy of the State that the water
resources of the State shall be prudently utilized in the best
interest of the people. To achieve this purpose, the government of
the State shall assume responsibility for the quality of said water
resources. The maintenance of the quality of the water resources
requires the creation of an agency charged with this duty, and authorized
to establish methods designed to protect the water requirements for
health, recreation, fishing, agriculture, industry, and animal life." 3/

Somewhat more detailed policy considerations appear in the criteria to be

followed by the State Stream Sanitation Committee in applying classifications


2/ N.C.G.S. (1955 Supp.) sec. 143.317 et. seq.
:/ N.C.G.S. sec. 143-211 et. seq.
U-






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and standards of water quality to particular waters. These include, among

other things, consideration of the relative economic values involved in

attempting to improve the condition of particular waters, and of any dominant

economic interest or development in the area.

Also, in a 1t Aer relating t@ Water and Sever Authorities, which

provides that no such Authority may employ condemnation powers without the

approval of the State Board of Water Commissioners, certain policy statements

appear in the criteria for determining whether to permit condemnation to be

used. (See Condemnation and. Related Proceedings, post.) Such criteria include

whether the proposed use of water by such Authority (1) is consistent with

the maximum beneficial use of the State's water resources, including its

watershedwide and statewide effect, and (2) will promote and increase the

storage and conservation of water. The Board may also consider the feasi-

bility and cost of alternative sources of supply and the probable detriment

and potential beneficial use of water through the use of such alternative

sources, compared with the source sought to be condemned.

Recent legislation also declares the State's policy to use its system

of real estate taxation so as to "encourage the conservation of natural

resources and the abatement and prevention of water pollution." / (See

Pollution, post.)

These and other legislative declarations of policy or policy consider-

ations are described herein in connection with the particular subject matters

to which they relate.


/ N.C. Session Laws, 1955, Ch. 1100, amending N.C.G.S. sees. 105-147,
105-294, 105-296, 105-297, and 105-122. This implementing legislation
relates only to pollution.




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Considerations of public interest also have been included in certain

special and local laws, regulations promulgated by certain agencies, and in

various decisions of the State Supreme Court, most frequently in instances

in which the Court has interpreted the meaning and effect of particular

legislation. This has been particularly noticeable in the handling of cases

relating to such things as milldams and drainage. The Supreme Court (here-

inafter called "the Court") has noted that early milldam and drainage statutes

were born of necessity, in order to develop the flat eastern lowlands of the

State. 5/ (See Drainage, and Condemnation and Related Proceedings, post.)

Types of Water Sources

Different legal principles have been applied to different types of

natural water sources, notwithstanding that they may be all more or less

interrelated. These include such broad categories as surface watercourses,

underground streams, percolating groundwaters, and diffused surface waters.

There are also various types of artificial watercourses and other artificially

developed waters, such as waters in constructed ponds or in reservoirs or

Slakes created by damming a natural watercourse.

The legal definition of, and distinctions between, the different water

sources, and the legal principles, statutory laws5 and regulations that

have been applied to each type of water source, are discussed below.
Natural Watercourses

Definition

In an early case, a natural watercourse was defined by the Court as

S follows: "A watercourse consists of bed, banks, and water. A natural


5/ Mizell v. McGowan, 120 N.C, 134, 26 S.E. 783 (1897); later decisions
in same case in 125 N.C. 439, 34 S.E. 538; 129 N.C. 93, 39 S.E. 729.




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