Title: Western Experience and Eastern Appropriation Proposals - Eastern Interest in Western Law
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Title: Western Experience and Eastern Appropriation Proposals - Eastern Interest in Western Law
Physical Description: Book
Language: English
Publisher: The Conservation Foundation
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Western Experience and Eastern Appropriation Proposals - Eastern Interest in Western Law
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 33
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003180
Volume ID: VID00001
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Full Text





WESTERN PERIENCE AND EASTERN APPROPRIATION PROPOSALS


by Clyde 0. Fisher, Jr.*


Part I Eastern Interest in Western law

A. Purpose of Paper.

The riparian system of water rights is currently a subject of study

and criticism in many eastern states. This system, as developed and administer-

ed almost entirely by the courts, is the basis of private rights to the use of

stream water in the thirty-one states comprising the eastern half of the

country.1 Both its general form and some of its variations from state to state

are disclosed in the accompanying studies of riparian law in Massachusetts,

Michigan, and North Carolina.2 Historically, the supply of readily available

water has generally been ample for meeting needs for water in the eastern

states, and the riparian system, apparently provided a satisfactory legal

framework for its allocation among users during this era of relative surplus.

But rapidly increasing demands for the use of water in recent years now signal

the end of this period in numerous areas, and expectations of a continued ex-

pansion of demand in the years ahead have raised doubts whether the riparian

system will prove satisfactory for the allocation of water in an era of rela-

tive shortage.

Various suggestions have already been made as to ways in which the

traditional substance and administration of the riparian system might be

modified in accordance with these changing conditions. Additional suggestions

emerge from some of the papers in this volume, and others may yet appear. Of

the suggestions already forthcoming, some of the more conspicuous ones concern

proposed legislation in several states for allowing the acquisition of appro-

priation rights to the supply of water in excess of the amount that would be


Member of the Connecticut Bar, LL.B.Yale; M.S., Yale Conservation Program.
Presently attorney, City Plan Commission, New Haven, Conn.

i______ --^lfIIII l







-2-


reserved for existing riparian rights. The treatment of these existing rights

under these proposals raises certain constitutional questions some of which

are examined elsewhere in this volume.3 The appropriation rights that could

be acquired under these proposals provide the focus of this paper.

These appropriation rights are patterned closely after the appropria-

tion rights that have been a distinguishing feature of water law in the seventeen

western states.3 In the western half of the country, where supplies of water

are seldom plentiful, the principle of prior appropriation constitutes the

doctrinal framework for an administrative appropriation system in which the

state, particularly through agencies in the executive branch of government,

plays an active role in the acquisition and adjudication of rights and in the

actual distribution of water from the stream. These administrative practices

have been found essential in order to facilitate a better use of limited water

supplies in the West, The eastern appropriation proposals, in providing for

the recognition of appropriation rights, also incorporate certain of these

administrative features of western law.

Despite noticeable improvements in the administrative appropriation

system in most western states over the last few decades, there is room for

considerable doubt concerning the extent to which this system has actually

permitted and encouraged the optimum use of water resources. Certain of the

more acute problems in western law are probably inherent in the appropriation

principle and would therefore arise under appropriation legislation in the

East to some extent. Various other problems that have appeared in western

law probably could be more easily avoided in the East. But the appropriation

legislation that has been proposed thus far in the East makes no apparent

attempt to compensate for many shortcomings in the theory and practice of

western law, and it is possible that the nature of these problems, perhaps

not yet widely perceived even in the West, is not sufficiently comprehended









-3-


in the East.

It is the aim of this paper to explore a number of the problems in

western law that might gradually emerge in significant dimensions under the

eastern appropriation proposals. As an introduction to this study, Part I

presents a summary description of the riparian system of eastern law and the

administrative appropriation system of western law; the asserted deficiencies

of riparian law and the interest of several eastern states in new legislation,

especially for the recognition of appropriation rights, are also set out in this

Part. Problems in western law are examined in some detail in Part II, where

major emphasis is placed upon problems of waste that prevent a desirably high

level of total beneficial use of water. Lastly, in Part III the eastern ap-

propriation proposals are studied to determine what provision they make for

meeting similar problems that might result from the introduction of appropria-

tion rights in the East.


B. The Riparian System of Water Rights.

1) Description.

Under the riparian doctrine the use of stream water is restricted

to the owners of land contiguous, or riparian, to the stream. The right of a

riparian owner to use the water is said to arise from ownership of the land.

He may divert water from the stream for use only on his riparian land.3b The

amount of water he may use and the purpose for which he may use it are not

subject to exact determination. Some courts have at times enforced a "natural

flow" rule which permits each riparian to divert water to the extent of his

domestic needs and which allows him to demand that the natural flow of the

stream reach his land materially unaltered except for the domestic uses of

upper riparians. Few important non-domestic uses would have no material effect

upon the quantity or quality of the flow, however, and most courts have re-


____, ___ i











ejected this essentially non-utilitarian rule in favor of the "reasonable use"

rule. Under this latter rule each riparian may use water to the extent of his

domestic needs and then, subject to the domestic uses of other riparians, may

use water for such additional purposes and in such amounts as is reasonable

in the light of all surrounding circumstances; the natural flow of the stream

need not necessarily be preserved. This right of reasonable use for non-

domestic purposes is limited by the similar right of all other riparians along

the stream. Priority of use by one riparian is either immaterial or only

one factor to be weighed in judging the reasonableness of his use, and nonuse

of water by a riparian does not result in loss of his right (unless coupled

with another's adverse use for the prescriptive period). The reasonableness

of a particular use is determined when, and only when, a court is called upon

to weigh the relative reasonableness of conflicting uses and to limit each

accordingly.

2) Advantages

In theory, the standard of relative reasonableness under the riparian

doctrine facilitates an adjustment of conflicts between uses in accordance

with the needs of each user and the dictates of general public interest.5

It allows each riparian a certain amount of flexibility in commencing a new

use or in expanding or altering an existing one, especially in the light of

changing conditions of water use and supply. This flexibility in riparian

theory reflects the public interest in the optimum use of water and, in ad-

dition to its egalitarian aspect, it rewards the enterprising and efficient

user.

At the same time, it is not yet clear how far the advantages of this

flexibility are actually realized in the operation of the riparian system.6

Despite the lack of data on this question, however, the flexible standard of

reasonable use under riparian theory is generally acclaimed. Conversely, the








-5-


rigidity of the pattern of water allocation under appropriation rights is

becoming increasingly apparent, as will be discussed at length in Part II

infra. This contrast is particularly marked in the present era of rapid change

in the nature and amount of water use.

3) Problems

The riparian system has been criticized on several grounds. Some

criticism has been leveled at its restriction of the use of stream water to

riparian owners and its requirement that they use the water only on their

riparian land. In particular, it is said that a better use of water may fre-

quently be made at other places, whether it be made by riparian or nonriparian

owners.

The major criticism of the riparian system relates to the element of

uncertainty associated with the right of reasonable use allowed riparian owners

for non-domestic purposes. It is argued that in the attempted exercise of this

right the riparian owner has no adequate way of determining what types of

activity he may use water for, how much he may use, and when he may so use it.

Because the reasonableness of a particular use of water by one riparian varies

with the needs of other riparians, the best estimate of his right under pre-

vailing and foreseeable conditions may be upset by the unpredictable activi-

ties of other riparians, who are free to commence or enlarge uses within the

limits of reason despite long nonuse of their rights.7 This uncertainty is

compounded in any state where a riparian neither making nor intending to make

use of water can enjoin an existing use as unreasonable with regard to his

right.

This uncertainty, however, may be modified to some extent in actual

practice. A court will occasionally regard the fact of priority of use as one

element to be considered in assessing reasonableness.8 At other times, where

a court desires to protect an important use that is not reasonable with regard


________ _- _____ i








6 -


to the needs of other riparians, the court may invoke the balance of conven-

ience doctrine in order that the use may continue undisturbed on payment of

compensation to the other riparians.9 In addition, where a nonuser seeks to

enjoin an existing use, some courts have granted an injunction that protects

the nonuser against loss of his right by adverse use but which cuts down the

existing use only at such future time as the nonuser actually desires to use

water.10

A somewhat distinct criticism of the riparian system concerns the

manner in which it is administered, a manner that is alleged to aggravate the

uncertainty inherent in riparian theory. The extent of a riparian's right of

reasonable use can be determined only by litigation. Occasionally a court

has undertaken to apportion the stream flow among two competing users in

order that each will have a clearer picture of his rights as against the

other under the circumstances prevailing at the time,11 but the fact that

apportionment decrees are infrequently rendered may indicate either that

they would not eliminate the conflict between the uses or would involve the

court more closely than it desires in the supervision of uses. It is claimed

that a court is generally unable to incorporate a sufficient degree of flexi-

bility in its decree to meet changing conditions that may alter the relative

standing of the parties, and the outcome of much litigation is not such as

will enable the parties themselves to judge the reasonableness of their uses

under varying circumstances. Moreover, other limitations of the judicial

process have been emphasized by critics of this mode of administration of

the riparian system. The costly and time-consuming nature of judicial pro-

cedure is said to render nugatory much of the protection the parties to the

action seek against each other, and the particular uses litigated may still

be upset by the uses of riparians not parties to the decree.12
It is likely that a considerable degree of uncertainty does attach








-7 -


to uses under the riparian system, despite the possibility of its partial

moderation in practice. Critics point out that this results, on the one

hand, in needless loss of resources invested in water-using enterprises later

upset by competing projects and, on the other, in waste of water that goes

unused or that is devoted to less valuable uses because investment in more

extensive projects is discouraged by risk of such loss. As a specific ex-

ample, it has been said that the riparian system discourages projects for the

increasingly necessary "seasonal" storage of the excess waters of wet seasons

for use during subsequent drier periods.

As is true of the riparian system's advantage of flexibility, the

actual impact of this element of uncertainty on existing and potential uses

has yet not been fully explored. Nevertheless, this uncertainty is un-

doubtedly the most criticized aspect of the riparian system. More than any

other, it is this criticism of the traditional form and administration of the

system that has sparked the recent movement for new water rights legislation

in many eastern states. The proposals in several states for the recognition

of appropriation rights appear to be motivated, in particular, by the greater

degree of certainty thought to attach to uses under such rights.


C. The Administrative Appropriation System of Water Rights.

1) Description.

The appropriation right contrasts with the riparian right in several

important respects. Moreover, the appropriation right is an integral part of

the administrative appropriation system of water law in the seventeen western

states, a system which is strikingly different from the riparian system of

the East.13

Appropriation rights: creation and loss.

An appropriation right arises from the application of previously


i





& f


-8


unappropriated water to a beneficial use,14 not from the ownership of any

particular land. Beneficial use is as necessary to maintain the right as to

create it, and nonuse of water theoretically must result in a declaration of

its abandonment or forfeiture. The right may also be lost by prescription.


--------: priority.

The distinguishing element of an appropriation right is the priority

whereby its relation to other appropriation rights is determined. The

priority of a right allows its holder to divert water as needed and up to

the full amount covered by his right before any water may be diverted under

rights of junior (later) priority. In order to satisfy this right, an ap-

propriator is entitled to substantial preservation of the conditions of

stream flow (time, quantity, and quality) obtaining when his right is created.

Under modern procedures for the acquisition of rights, the priority of a

right attaches as of the date of filing an application to a state agency for

an appropriation permit, provided the application is approved and the proposed

use is begun with diligence.15 Priorities are based solely on this factor of

time and are not affected by such other factors as the purpose, place, or

amount of use.

-----: place, purpose, time, and amount of use.

Under an appropriation right water may be diverted for use on any

land, regardless of its riparian or nonriparian character.l6 The right en-

titles its holder to continue forever to divert water at the same point for

use at the same place, for the same purpose, and at the same time of the

year as the use that gave rise to the right. The maximum amount of water

beneficially used during the period in which the use is first begun is the

maximum amount that may be used under it at any subsequent time; this amount

is frequently stated both in terms of the maximum rate of flow (in cubic feet


~ I









-9-


per second or in miner's inches) that may be used at any moment and also in

terms of the maximum volume of water (in acre-feet) that may be used over a

given period of time, usually one year or one growing season.17 Within these

limits, the appropriator is theoretically limited to whatever lesser amount

may be reasonably necessary to continue the beneficial use which gave rise to

the right.

The priority and amount of an appropriation right cannot be altered

by the appropriator, but he may change the point of diversion or the place or

purpose of use if the rights of others are not thereby impaired.

Administrative procedures: acquisition of new rights.

Appropriation rights could originally be acquired either through

mere diversion and beneficial use of water or by posting a notice at the point

of diversion, filing a copy in the county records, and then commencing the

use.18 In almost every state today, however, a formal application must be

submitted to a state agency. The application must contain a detailed descrip-

tion of the proposed new use, and on the basis of this information the agency

can fulfill its statutory duty to reject the application if the new use would

conflict with existing uses or would be contrary to the public interest.19

After a hearing at which interested parties may object to the proposed use, the

agency may reject the application or approve it in whole or in part. If the

application is rejected, the applicant may take an immediate appeal to the

courts, but unless he secures a reversal of the agency's order he is pro-

hibited from using or from claiming any right to use water. To the extent an

application is approved, the applicant is granted a permit signifying the

state's approval of the proposed use, and he must undertake his project

diligently and within the terms of his permit. The agency may cancel the

permit for violation of these conditions, but where the project is completed

in accordance with them, the agency grants him a license or certificate


C _I I_











evidencing his right to make the approved use, subject, of course, to the re-

quirement that it not interfere with uses under senior rights. While senior

appropriators may enjoin his use at any time if interference results, his

right to a substantial preservation of existing conditions of stream flow

entitles him to protection against interference arising from subsequent

changes in the uses made under senior rights.

Some of the requirements of this acquisition procedure must also be

complied with when an appropriator wishes to change the point of diversion

or place or purpose of his use. On his application, the agency holds a hearing

to determine whether the rights of others would be impaired and then rejects

or approves the application accordingly.

--------: adjudication of early rights.

Complete data on the location, nature, and amount of existing rights

is needed both by the agency and the courts in order to protect these rights,

when granting new ones, or distributing water from the stream. The agency

generally has adequate records relating to rights acquired under modern pro-

cedures. But the informal and decentralized acquisition procedures of earlier

times meant that rights were usually defined only by the inflated claims of

the users, and it has been necessary to conduct adjudication proceedings in

which the amount of water actually put to a beneficial use by these claimants

can be conclusively determined. An adjudication of such early rights is made

in a single proceeding for an entire stream basin or a designated part there-

of. Under the most common form of adjudication procedure, the state agency

takes evidence relating to claimed rights and submits a preliminary order of

determination to the court which, after hearing objections to the order, is-

sues a decree affirming, modifying, or rejecting it. In two states, however,

the agency's order is final and conclusive unless appealed to a court and

modified or reversed by it.





I# t


-11 -


---------: distribution of water.

Officials of the state agency frequently play an active part in the

actual distribution of water from the stream to ensure that each user is re-

ceiving all, but no more than, the amount lawfully due him. For such admin-

istrative purposes, a state may be divided into divisions corresponding to

major stream basins, and each division is subdivided into several districts.

The district official, often called a watermaster or a "ditch rider", may be

authorized to control the operation of each user's diversion facilities and

may also possess the power to arrest unlawful users. The vital role per-

formed by these officials has frequently been stressed.20 Today most early

rights have been adjudicated and little water remains available for the ac-

quisition of new rights in many western areas, with the result that this

distributive function has risen to paramount importance in the administrative

appropriation system.


2) Advantages.

The contrast between riparian and appropriation rights evident in

the foregoing description is sharpened by a statement of the advantages and

problems associated with appropriation rights, for each type of right

appears to be strong in precisely the way in which the other is weak.

As just stated, an appropriation of water may generally be made for use

at any location, and the absence of a riparian-land restriction is said to

increase the likelihood that water will beused where most beneficial both to

the individual user and to the general public. Most important, however, is

the claim that the priority relationship among appropriation rights allows a

much greater degree of certainty than is possible under the reasonable use

relationship among riparian rights. The appropriation principle places a

premium upon the actual beneficial use of water, and unused rights are not








- 12 -


allowed to persist as threats to the stability of existing uses. Such specific

problems of uncertainty under the riparian system as that of seasonal storage

do not exist under the appropriation system, as appropriation rights may be

acquired for storage of water as well as for "direct flow" diversions for

immediate use.20a Finally, it is claimed that the inherent certainty of ap-

propriation theory is translated into reality through the acquisition, adjudi-

cation, and distribution procedures of the administrative appropriation system.

As may be true of the alleged uncertainty under riparian rights, how-

ever, the certainty claimed for uses under appropriation rights may be somewhat

exaggerated. The certainty attaching to an appropriation right, particularly

one of junior priority, can be no greater than the dependability of the water

supply. This dependability of supply is determined initially by natural condi-

tions. In addition, it is difficult in some situations to distribute the

available supply strictly in accordance with priorities. Distribution of water

among a large number of appropriators might be a simple task if they happened

to be arranged in order of descending priority down the length of the stream,

as each appropriator could freely divert his lawful amount from whatever

stream flow reached him without risk of impairing senior rights below him.

But it may be an infinitely complex operation where the priorities are scat-

tered haphazardly up and down the stream.20b To whatever extent priorities

are not or can not be strictly enforced because of these complexities, the
20c
certainty attaching to senior rights is reduced.20c Mreover, as will be

discussed in the next part, several avoidable weaknesses in the administra-

tion of the appropriation system have also affected the degree of certainty

actually attained.

Nevertheless, it is likely that despite these problems the precise

definition given appropriation rights and their present mode of administration

results in a greater amount of certainty for more users than is attainable

----- --------------------________________









- 13 -


under the riparian system in its traditional form. It is this advantage of

greater certainty that is sought by the advocates of appropriation rights

legislation in the East.


D. The Eastern Water Law Movement.

The judicially developed riparian system has been the subject of

little legislative interest until recent years in the East.21 The principle

of riparian rights did not appear in Anglo-American jurisprudence until after

the first quarter of the nineteenth century, prior to which time the law of
22
water rights had been largely unformulated.22 Both before and after the

emergence of this principle, the great contemporary importance of water power

and the considerable fixed investment entailed in utilizing it led many eastern

states to adopt Mill Acts to protect and encourage this particular type of

enterprise.23 Under these Acts a riparian owner, as long as he did not inter-

fere with existing mills along the stream, could use water for mill purposes

by compensating upper riparians whose land was flooded by his mill pond and

lower riparians injured by his change in the conditions of stream flow. To the

extent of the water used for this type of activity, these Acts introduced

elements of an appropriation system into the unformulated or rudimentary water

law of these states. Because of the timing of their enactment in the develop-

ment of this law, however, the Mill Acts cannot very clearly be considered a

response to the criticisms of the riparian system outlined above.

Public water supply uses and some miscellaneous types of use have

been subjected to a degree of regulation for several decades in some eastern

states,2 but it was not until the 1930's that any form of state regulation

was extended to more general types of use. Over the past two decades a number

of states have enacted statutes requiring a permit from the state for the

use of stream or ground water, though most of the statutes exempt from their


__








- 14 -


coverage certain important types of use or various areas of the state.25 It

appears that there has been little enforcement of some of these statutes, at
26
least until the last few years,26 and the reasons for enactment of many of

them are not sufficiently clear to justify a conclusion that they resulted

from dissatisfaction with the riparian system in line with the foregoing

criticisms.

On the other hand, certain legislative interest in the subject of

water rights during the past five or six years can be traced directly to these

criticisms. This interest.appears to be developing along two distinct lines:

one line might be called riparian system legislation, and the other is repre-

sented by the proposals for enactment of appropriation rights legislation.

Though the legislative activity to date has been confined primarily to these

two Xnes,26a there is also in the eastern states a growing interest in the

development of a system of water rights somewhere between these two tradi-

tional systems, usually viewed as representing the polar positions within

the range of possibilities,27 and certain intriguing suggestions as to sys-
28
teams of an intermediate nature are beginning to emerge.

The riparian system legislation consists of statutes enacted in

Indiana, Kentucky, and Virginia since 1954.29 These three states have each

adopted a rather similar declaration of policy that the state should exercise

its police power to effectuate the full utilization and protection of its

water resources. The Indiana and Kentucky statutes contain further provisions

which may represent only a codification of certain aspects of riparian rights

in those states; i.e., the statutes declare each riparian's right to a

domestic use of water and then, subject to the domestic requirements of other

riparians, allow him to make a reasonable use of water for non-domestic pur-

poses. These two statutes also attempt to clarify the rights of riparian

owners for storage of surplus water in excess of existing reasonable uses,









- 15 -


and an official recommendation to the 1956 session of the Virginia legislature

included rather detailed provisions intended to encourage such storage by

riparian owners.3

Appropriation proposals have been studied in several eastern states,

and Mississippi in 1956 became the first state to enact such legislation31

Similar proposals have been before the South Carolina legislature since 195432

and were submitted to the legislatures of North Carolina and Arkansas in 1955.33

Other appropriation proposals have been unofficially suggested in Wisconsin34

and Michigan.35

Each of these six proposals 36 would make certain provision for

rights under existing law and would allow the remainder of the water supply

to be used only under appropriation rights acquired subsequent to enactment

of the proposal. These appropriation rights are identical with the appro-

priation rights of western law described above, and they must be acquired

through administrative procedures similar to those now prevailing in almost

all western states.37 Wherever a proposal prescribes a procedure for the

adjudication of the scope of existing rights, it is similar to the joint

administrative-judicial adjudication procedure of most western states.38

In addition, some of the proposals provide for participation by the state

agency in the actual distribution of water from the stream.39
The provision made for existing rights under these proposals

determines the extent to which appropriation rights, with their advantages

and problems, can apply in the particular state. It also determines the

extent to which the advantages and problems of existing riparian law will

continue in the future. The Mississippi statute and the South Carolina

proposal limit existing rights to the amount of water lawfully and beneficial-

ly used within three years prior to enactment of the legislation; the North

Carolina proposal limits them to the amount so used at the date of enactment.

_______ i











In addition, the Mississippi statute and the North and South Carolina pro-

posals recognize an existing right to the amount of water lawfully and

beneficially used within a certain period after enactment where projects for

such use are already under construction at enactment. Except where con-

struction is in progress, however, riparian rights under existing law are lost
41
to the extent that they have not been used prior to or at enactment. No

priorities are established among the existing rights that are preserved.

Under the North and South Carolina proposals, the use made under these rights

does not appear to be restricted to the original place and purpose, though

this characteristic restriction of appropriation rights does apply to rights

preserved under the Mississippi statute. The Mississippi statute contains the

further provision, to be returned to in a moment, that these preserved rights

may be "modified or terminated" by the state agency at ary time "upon good
42
cause shown".

The Arkansas proposal would deny recognition to any riparian rights

for other than domestic purposes,43 but the Wisconsin proposal and (to a

certain extent) the Michigan proposal employ the technique used to limit

riparian rights by the Mississippi statute and the North Carolina and South

Carolina proposals. The Wisconsin proposal defines existing rights as those

under which beneficial use is made prior to enactment, though it is not entire-

ly clear that existing rights are limited to the amount of this prior use.

Under the Michigan proposal, riparian rights of reasonable use for domestic,

power, recreation and fishing purposes would be preserved with some modifica-

tion. Subject to these rights, the proposal would then recognize appropria-

tion rights to the extent that water has been reasonably and beneficially used

for other purposes prior to enactment and not already abandoned; these rights

would be recognized for uses on riparian or nonriparian land and presumably

by riparian or nonriparian owners, and they would be assigned priorities dating

i __ ii__1


- 16 -











from the time each use was begun.45 The Michigan proposal, like the other

eastern proposals, then provides that any remaining supply of water may be

used under appropriation rights acquired by application to a state agency

subsequent to enactment.


This current interest in the subject of water rights indicates that

some eastern areas may be approaching the situation of relative water

shortage that have prevailed since the time of first settlement in most of

the West. The advocates of appropriation legislation in the East believe

that a desirably high level of beneficial use of limited supplies will be

achieved by restricting riparian rights to the amount of existing use under

them and by allowing appropriation rights to attach to any remaining supply.

As already indicated, the aim of these proposals is to achieve the relatively

greater certainty attainable under appropriation rights than under riparian

rights. But in the western law on which these proposals are modeled there

have appeared serious problems that may more than offset this advantage of

certainty. The likelihood that these same problems would emerge under these

eastern proposals calls for an analysis both of these western problems and

the remedies available for meeting them in western law. Perhaps it is

because of anticipated problems of this nature that the one appropriation

statute enacted thus far inthe East -- in Mississippi -- provides that ap-

propriation rights acquired after enactment (as well as existing rights

preserved by the statute) may be modified or terminated by the state agency

at any time upon good cause shown.4 No standards are prescribed for the

exercise of this administrative power from which the purpose of this pro-

vision can be less speculatively determined, but whatever the reason for

it this provision would appear to have a decided impact upon the certainty

of water rights in this state,47




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