Title: Problems in Western Law
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Title: Problems in Western Law
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Language: English
Publisher: The Conservation Foundation
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Problems in Western Law
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 34
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Full Text




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Part II PROBLEM IN WESTERN LAW

A. Introduction

The administrative appropriation system of western law appears to

have created a number of problems that seriously impede a high level of

beneficial use of a state's water resources. Some of these problems have

been recognized for a considerable period of time. The full significance

of certain other problems is only now becoming evident.

These western problems may be grouped under several headings. The

largest group consists of the problems of waste -- those relating to the

use of water,in wasteful amounts, at wasteful locations, and for wasteful

purposes. These problems are primarily a result of a priority system of

rights under which uses are frozen in terms of the original amount, place,

and purpose of use. These problems and the remedies available to meet them

in western law are the principle subject of discussion in this part of the

paper,

Other problems in western law concern situations of unnecessary

uncertainty. It has already been stated that the certainty under appro-

priation rights is far from absolute and that priorities are difficult or

impossible to enforce in some physical circumstances The problems of

uncertainty discussed later in this part, however, are problems which

should be capable of solution to a substantial degree. These problems

relate to the uncertainty sometimes confronting would-be users and the

state agency as to the amount of water covered by existing rights, to un-

certainty caused by the continued existence of riparian rights of reason-

able use in a few states, and to uncertainty concerning rights to the use

of return water. The problem of return water is partly a problem of un-

settled legal doctrine. Another problem of unsettled doctrine, but one

which probably causes little general uncertainty, relates to the question

..... .. i








-19 -


whether prescriptive rights may still arise in states with modern procedures

for the acquisition of new rights. These various problems are discussed

briefly at the end of this Part.


B. Problems of Waste and Remedies for Them.

1) The Problems.

Ninety percent or more of the water used in the West is for irtiga-

tion. To a considerable extent, therefore, problems of waste under the

administrative appropriation system are problems of irrigation agriculture.

But these waste problems are not necessarily peculiar to irrigation.

Although as little as three percent of the water used in the East may be

for irrigation,2 the general nature of these western problems might not be

unlike problems that would arise under an administrative appropriation

system in the East.

The problems of waste in western law may be classified in three

fairly distinct but somewhat overlapping groups. They presume a situa-

tion of limited water supplies from which a high level of beneficial use

is desirable. First, given the place and purpose of a particular use, the

amount of water diverted for it is frequently excessive and wasteful.

Second, given the purpose of a particular use, its location is often such

that the same purpose of use at another place would require a smaller amount

of water. Third, even though the location and the amount used are ap-

propriate for the particular purpose to which water is being applied, this

purpose may be such that the same amount of water used for a different

purpose would constitute a higher beneficial use,

a) Wasteful amounts.

The problem of wasteful amounts concerns the application of un-

necessarily large amounts to a given use, excessive losses in conveying


F ~


._~__ __~J_~IL-








20 -


water from stream to place of use, and inefficient means of diverting water

from the stream into a conveyance system.3

i. Application of water to the given use.

Although an appropriation right is defined in terms of a certain

amount of water, an appropriator is under an obligation to junior appro-

priators not to use more than whatever lesser amount is reasonably necessary

for his needs. In applying irrigation water to a crop, it is generally

necessary to use a greater amount of water than is consumed by the crop

for such reasons as the removal of dissolved minerals that would otherwise

accumulate in the soil, and application of this extra amount is not deemed

waste. But it is frequently found that the amount an appropriator is

actually applying is considerably beyond that which is necessary for these

various reasons.

This obligation to use only that amount reasonably necessary has

been said to demand an unrealistic display of self-restraint. Appropria-

tors tend naturally to err on the safe side by using an ample amount of

water while it is definitely available. They may be able to divert more

than is necessary at the moment because of the fact that the maximum rate

of flow covered by an appropriation right is usually greater than is

actually necessary at many times of the growing season. They may also

be diverting wasteful amounts because many early adjudication decrees

awarded excessive amounts to appropriators, amounts measured more by

their claims than by their actual beneficial use. Fear of forfeiture of

the unused part of a right, even where it does not cover a generally

excessive amount, is particularly likely to cause unnecessary uses of

water. 5a

The variable needs of appropriators, especially for irrigation,

render it difficult for administrative officials to supervise actual


i








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methods of applying water.6 Moreover, the authority of these officials

may not extend beyond the act of diverting water from the stream;

particularly in the irrigation district organizations, public and private,

within which the bulk of western irrigation is carried on,7 the state

officials usually have no control over the actual use of water by indivi-

dual users. Finally, irrigation techniques are continually improving

to allow greater productivity per unit of water used, but individual

appropriators may be slow to change their existing techniques, especial-

ly if the primary benefits of the change accrue to junior appropriators

for whom more water is made available.

In sum, given the place and purpose of a particular use, the applica-

tion of wasteful amounts of water to that use poses a substantial problem

in western law.

ii. Conveyance of water from stream to place of use.

The amount of water an appropriator may take from the stream in-

cludes the amount he is entitled to use plus an allowance for seepage and

evaporation losses in conveyance to the place of use. The ditches and

canals of the great majority of irrigation systems are not lined with

material to reduce seepage losses, as lined systems (or pipes) would

frequently be unduly expensive, and seepages losses may be substantial

in some irrigation systems. In addition, the natural channels occasional-

ly used in the conveyance of water from a stream to the place of use may

at times involve disproportionate seepage losses. In some areas the

combined seepage losses from each appropriator's individual irrigation

system are substantially larger than would result from a consolidated

network of ditches and canals. As irrigation is practiced during rela-

tively hot and dry times of the year, evaporation losses may also be

considerable.


1 i _C_~II_








22 -


Conveyance losses that were relatively harmless when many early

uses were begun may no longer be justifiable today, but some of these convey-

ance systems have not yet been sufficiently improved. Where the particu-

lar use being made could not bear the expense of an improved system, this

problem of wasteful losses in conveyance may shade into the problems of

wasteful location or wasteful purpose of use.


iii. Method of diverting water from the stream.

As already stated, an appropriator is entitled to the substantial

preservation of the conditions of stream flow obtaining at the time his

right was created. As part of this right, he is protected in the

maintenance of his method of diverting water from the stream if this method

is deemed reasonable under the circumstances. This protection, however,

can prevent another person from using seemingly available water where a

senior appropriator's method requires preservation of certain conditions of

stream flow to propell his diversion machinery or to keep the water level

within reach of his intake facilities. 0 Wherever an inefficient method

of diversion was deemed reasonable by the court, therefore, a part of the

stream flow would have to pass substantially unused. While protection of

means of diversion is still an element of the appropriation right today,

it may be that the availability of cheap power in many areas and the

development of modern pumping equipment has meant the end of earlier and

often inefficient methods of diverting stream water. Nevertheless, the

use of wasteful amounts in diverting water may remain a sufficient problem

in some instances to justify its mention here.1

b) Wasteful Location

A particular use may be so located that its value is relatively low

in terms of the amount of water necessary to maintain it. This problem of


_I








23 -


wasteful location arises because an appropriation right entitles its holder

to continue forever to use the same amount of water for the same purpose

and at the same place. Though changes in the place (or purpose) of a use

are generally permitted, an appropriator may often feel a change of an

existing wasteful use would not be in his individual interest. Furthermore,

the interdependencies of different uses where water is successively used

and reused by a number of appropriators frequently means that a change

cannot be made because of the requirement that the rights of others to a

preservation of existing conditions of supply not be impaired thereby.12
i. Excessive channel losses in satisfying
senior downstream priorities.

The earliest settlement of western valleys frequently occurred in

downstream areas, with the result that many early (senior priority)

appropriation rights are located in these areas today. Western streams

tend to be long and, after leaving their mountainous headwater regions,

they pass through arid and semi-arid expanses where high temperatures and

parched soil exact a heavy toll in evaporation and seepage losses, especial-

ly in the summer growing season months, In order to satisfy a senior

right to a certain amount of water at a downstream point, therefore, it

may be necessary that junior upstream appropriators let several times this

amount pass by them to allow for these channel losses. Conditions of

climate, soil, and topography often call for a more intensive use of water

in the upper valleys before these losses are sustained, and the degree

of protection to be accorded prior downstream rights entailing excessive

channel losses has posed a difficult question in western law.13

ii. Use at locations preventing full utilization
of seepage and return water.

Seepage losses from an irrigation system and the unconsumed portion

of water applied to a crop do not necessarily represent complete losses,


.1








24 -


for this water often makes its way back to a stream or into a ground water

reservoir from which it may again be diverted for use. EMch western irrigation

development is predicated upon use of this "return water." The opportunities

for multiple reuse of water are to a considerable extent dependent on the lo-

cation of each successive use at such a point that its return water may be

i beneficially used. But these opportunities are decreased to the extent that

senior rights are located at downstream points or at other places the return

water from which cannot be fully utilized. For this reason, as well as to

avoid excessive channel losses entailed in protecting senior downstream rights,

it may be desirable to make more intensive use of water in the upper valleys

than the existing location of rights permits.15 Though there have been some

notable exceptions,16 it is now apparent that the haphazard location of ap-

propriation rights in many cases is unfortunate in this regard.

iii. Use on poor land.

Another problem of wasteful location, somewhat different from the

foregoing two situations, concerns the use of water for irrigation on rela-

tively poor soil. There is a greater amount of irrigable land than water in

many western areas, and now that little unappropriated water remains in most

of them today it is seen that the land being irrigated is often less produc-

tive than other land which must remain unwatered. Poor land has come under

irrigation because early settlers knew little about the intricacies of soil

fertility, because of the land's proximity to water, because it was included

within large projects in order to spread the costs of development over a

greater amount of irrigated acreage, and undoubtedly for other reasons. Land

fertile when first used may now have lost much of its productivity through

long and perhaps careless use. Moreover, constantly increasing knowledge of

soil fertility and changing market demands for different crops (which often

require different types of soil) have meant that land sufficiently fertile for


^ ______ ____________________________________________j


__








25 -


use at earlier times may no longer be so under contemporary conditions. Ir-

rigation of poor land means, of course, a lower productivity per unit of water

used than if the water were applied to better land. This problem of wasteful

location appears to exist in sizeable proportions in the West.17

iv. Political restrictions on place of use.

While the foregoing problems of wasteful location may be said to re-

sult from allowing appropriators too great a freedom in selecting their places

of use, certain restrictions imposed on this freedom for broadly political

reasons may also cause a failure to use water at the most beneficial locations,

Restrictions on diversions for use anywhere within the watershed of the stream

are rare.18 Diversions to different ("foreign") watersheds, on the otherhand,

are substantially prohibited in one statel9 and are permissable only within

certain limitations as a result of intense sectional disputes in two states --

California20 and Colorado21 -- where an urgently needed fuller use of water

resources is compelling huge "trans-mountain" diversions from watersheds of

perennial surplus to areas of acute shortage. Even more common in the West

are prohibitions or special conditions imposed on diversions in one state

for use in another, although some of these restrictions are being eased as

states tend gradually toward enactment of reciprocity statutes allowing such
23
diversions into other states which allow them in return.2

Restrictions on diversions to foreign watersheds or across state lines

are frequently criticized as obstacles to the use of water where it will be

most generally beneficial.24 These restrictions constitute problems of

wasteful location in many instances and are significant enough to justify

their mention here. But as these problems would probably be as likely to

arise under any system of water rights, they will not be dealt with under

the discussion below of remedies available within the administrative ap-

propriation system for meeting problems of waste created by this system.








26 -


C. Wasteful Purposes.

An appropriation right allows water to be applied to the same purpose

forever, but temporary or permanent changes in the conditions of water use

and supply in a region may mean that the purposes for which water was original-

ly appropriated are not among the more important purposes for which water is

sought at a later time. Unfortunately, the need for applying water to changed

purposes may well emerge after full over-all use of available supplies has

been achieved. The interdependencies among uses already established are

likely to block changes to different purposes if existing conditions of

supply are to be strictly preserved for the benefit of the established users.25

i. Temporarily more important uses.

Where water is in perennially limited supply, plans will be made to

use all that is expected to be available. But where these plans must be made

considerably in advance and the amount of water that will be available at

any time is quite variable and unpredictable, much investment may already be

made in water-using activities before shortages actually materialize. When-

ever there is insufficient water for the use of all appropriators, their

uses must be terminated in reverse order of priority until the entire supply

is consumed in giving senior rights their full entitlement. No allowance is

made for the relative value or needs of the different uses at the moment.

In the case of irrigation, different crops or different fields of the same

crop may require water at quite different times, and a high value crop may

be in critical need of water that goes instead to a low-value crop (even,

perhaps, in less immediate need of water) because the latter is irrigated

under a senior right. The appropriation system of rights has been widely

criticized for this uneconomic allocation of water in times of temporary
26
shortage.


--.- I








- 27 -


ii. Permanently more important uses.

In many western areas today new uses can only be initiated by permanent

changes in the purposes for which water has previously been applied. When a

region of limited resources passes beyond the pioneer stage of development,

continued economic growth can take place only through a shifting of resources

into progressively more rewarding types of enterprise. In particular, some

western areas where for decades water has been used primarily for irrigation

are now thought to possess a definite potential for industrial development,

with its accompanying diversification of economic activity and higher standards

of living.27

This potential can be realized in many areas only if substantial amounts
28
of water already appropriated for irrigation are made available to industry.

But the readily apparent tendency of the appropriation system to freeze the

initial pattern of resource allocation29 is now becoming widely regarded as

a "serious legal barrier to wise water development..30 The West has been

warned in strong language that "it must soon decide whether its future must

be sacrificed by its antiquated priorities system in water use."31 The

obstacles raised by this system to a permanent reallocation of water to more

important uses render this part of the problem of wasteful purposes the most

far-reaching problem of western law. It is in connection with this problem

that the .obstacles to change already mentioned *- the interdependencies of

uses, and the unwillingness of users to make changes not felt to be advan-

tageous to them -- have their most serious consequences.




2) The Remedies

Western law contains several remedies designed to mitigate the fore-

going problems of waste and to bring about a gradual increase in the total


I I II(









-28 -


level of beneficial use of water. These remedies include the requirement

that the use of water under existing and under new rights be both reasonable

and beneficial and that rights be forfeited for nonuse. Statutes in several

states list different purposes of use in preferential order; varying with the

particular state, these preferences may allow the subordination or termination

(usually with compensation) of existing uses under senior rights in favor of

more preferred uses, or they may authorize the state agency to modify or

reject applications for new rights where the proposed purpose of use is

relatively unpreferred. The operation of preferences in this latter situa-

tion moderates the effect of recognizing new priorities solely on the basis

of time of filing applications. The effect of such recognition may be further

moderated by the state today,by the rejection of applications contrary to

the public interest, under statutes authorizing withdrawals of water from ap-

opopriation, or through appropriations by the state itself as part of specific

programs of water resource development. Finally, appropriation rights may be

granted for only a limited period of time, after which the water may be re-

allocated to a different use, and annual fees may be charged for the use of

water to ensure its proper and efficient use.

The development of legal doctrine and administrative practice to

date indicates that these remedies may be of questionable effectiveness.

The following account of these remedies indicates the extent to which they

have been applied to problems of waste thus far and includes various sug-

gestions that have been made for their fuller application in the future.

a) Reasonable beneficial use.

Uses made under existing rights and uses proposed under new rights

must be both reasonable and beneficial. This requirement is one of the

principle remedies offered by western law for meeting problems of waste.

The concept of reasonable beneficial use here, however, is to be carefully


~__~I__ ~I









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distinguished from the riparian law concept of reasonable use which theoretical-

ly contemplates a change in the conditions of a given use in accordance with

a change in the circumstances surrounding it.

The usual statement of the requirement of reasonable beneficial use

in appropriation law is misleading in that it renders the requirement in-

distinguishable from this riparian law concept. Reasonable beneficial use

is said to mean "not only must the use be beneficial to the appropriator,

but it must be reasonable to use by others who have access to the same

source of supply."33 In contrast to the riparian concept, however, this

requirement has a quite restricted application and is subordinate to the

dominant element of priority. It has been applied against some of the

problems of wasteful amounts and could fairly readily be extended to other

problems of this nature. But it apparently has had little application to

problems of wasteful location. Moreover, it seems to have had even less

application to problems of wasteful purposes. In effect, this means that

once a priority right has been acquired for a certain place or purpose of

use, the use may continue forever as long as the amount of water used is not

excessive for that particular place and purpose.

History. The requirement of beneficial use has been an element of

appropriation theory since its origin in the customs of miners and early

irrigators in the West. Early acquisition procedures, however, usually

left a right defined only in terms of the appropriator's claimed amount of

use. The first appropriators in some areas are credited with a self-

restraint in claiming rights only to the actual amount beneficially used,

but later appropriators displayed an inclination to claim almost limitless

amounts stated in units of measurement often little understood by the

claimants themselves; in some cases individual claims extended to several

times the total amount of stream flow.34 When a more precise definition


_~








- 30 -


of the scope of these rights were sought in adjudication proceedings, courts

sometimes accepted exaggerated claims uncritically; at a later time, the

courts tended to limit rights to the amount of water which could be carried

by an appropriator's ditch at capacity.35 These adjudications resulted in

many excessive decrees that have been a considerable problem in some states.6

Gradually, however, the courts have undertaken the more difficult task of

limiting an appropriator to the amount reasonably and economically applied

to a beneficial purpose.3

i. Wasteful amounts.

The major application of the requirement of reasonable beneficial

use has been in connection with the problems of wasteful amounts. Many

courts have stated in strong language that the wasteful methods of earlier

times are not longer justifiable.38 They have warned that disproportionate

conveyance losses can not be tolerated,39 and in two oft-cited cases con-

veyance losses of 671 and 50% of the water diverted from the stream were

held unreasonable. Inefficient means of diversion have also been held un-

reasonable and denied protection against junior appropriators in some

instances.42 Legislatures in some states have specified by statute that

losses exceeding a certain percentage are not permissible,43 and statutes

in many states prescribe the maximum amount of irrigation water per acre

(delivered to place of use) that may be used each year.44 On an adminis-

trative level, some state agencies have adopted detailed regulations pre-

scribing the maximum allowable "duty of water" (that amount reasonably

necessary for a particular purpose of use)45 for which new rights will be

granted.4

Nevertheless, it is often alleged that only the more flagrant ex-

amples of waste are actually eliminated. The requirement of reasonable

beneficial use has been enforced more vigorously against wasteful methods

_________- --_______









- 31 -


of diversion and conveyance than against wasteful methods of applying water,

and much waste of the latter type is said to continue.47 Some courts, while

speaking of the public policy that calls for the highest and greatest duty

of water within reasonable limits, have at the same time awarded amounts

labeled "incredible"4 and have held that uneconomic paralleling of ditches

of individual appropriators is beyond the power and policy of the state to
49
correct.49 In addition, seemingly inefficient means of diversion may still

be upheld as reasonable even though a fuller use of water is thereby pre-

vented,50

The courts have been unwilling to require appropriations to improve

diversion, conveyance, and application methods that are customary in the

locality, at least where these customs do not entail excessive waste; the

most scientific methods are not required.51 This standard of local custom,

however, has frequently been criticized as inadequate. It has been said that

legislative definition of higher standards is probably desirable2 and that

diversion and conveyance methods should "conform to the highest standards of

efficiency that are reasonably applicable to the physical and economic cir-

cumstances of the community."53 Legislative standards as to maximum amounts

of irrigation water that may be used per acre, on the other hand, do not

appear to have been overly successful; the amounts set are quite ample and

tend to be the amounts for which new rights are granted, and there seems to be

some tendency to repeal these statutes and to direct administrative officials

to prescribe appropriate limits in each case.54 But administrative agencies

do not always have sufficient authority, funds, and general public support

for fulfilling the tasks assigned them, and a large portion of the appellate

court cases enjoining wasteful amounts of use have been brought by private

parties rather than public officials.55

Greater administrative supervision over the actual use of water is


I









32 -


the generally recommended solution to these problems of wasteful amounts.

One of the specific techniques that have been suggested is an annual de-

termination of the amount of water that should actually be necessary for the

use contemplated under each right, with due allowance made for the unavoid-

able loss of some water in conveyance; the maximum amount covered by the

right would constitute the outer limit of these determinations.56 This

technique has quite recently been advocated as a possible solution to the

continuing practice of wasteful and damaging flood irrigation of mountain

meadows and northernplains areas in the West.57 It has also been suggested

that appropriators under excessive early decrees could be regulated through

annual determinations of their needs, though a preferable solution to the

problem of these decrees is said to consist in recognizing rights under

them only to the extent of the reasonable beneficial use actually made,

with forfeiture of the excess portion of the decrees declared.58

Lagging enforcement of the requirement of reasonable beneficial use

reflects the delicate and never-ending task confronting administrative

officials, upon whom the major burden rests. Enforcement must be predicated

upon a thorough analysis of the time, nature, and interrelationships of all

uses from a common supply of water: a use may be beneficial to one user

but not reasonable in the light of others' needs for water; a use that is

reasonable and beneficial in one area may not be so elsewhere; and varia-

tions in water supply within a year may cause a use ordinarily justified

to become unreasonable at times.59 Effective enforcement requires the

gathering of extensive data on uses, the making of difficult decisions in

the exercise of necessarily broad discretionary powers, and constant

policing of the practices of a large number of individual users. Data-

gathering and policing depend upon adequate funds and public relations as

much as upon statutory grants of requisite authority. Despite -- or perhaps









33


because of -- the magnitude of the task, however, a greater degree of ad-

ministrative enforcement of the requirement of reasonable beneficial use

is thought to be necessary for reducing problems of wasteful amounts in

much of the West.

Auxiliary Remedies. Certain techniques and elements of western law

which are designed to reduce problems of wasteful amounts might be regarded

in a sense as auxiliary to the requirement of reasonable beneficial use and

be discussed at this point. Several of these techniques are commonly re-

ferred to as "physical solutions."

Statutes in many states allow appropriators to enter rotation agree-

ments with the approval of the watermaster. Rotation of water is a par-

ticularly helpful technique at times when conditions of supply are such

that appropriators can not all divert useful amounts of water at the same

time; especially where appropriators do not need a continuous flow of water

to irrigate their crops, rotation schemes may enable them to receive useful

amounts at times when most needed, and the disproportionately large seepage

and evaporation losses involved in conveying and using small amounts of

water are avoided. Rotation agreements are generally voluntary, but their

value in many circumstances has led to recommendations that state officials

be authorized to impose involuntary rotation schedules to reduce losses and

permit a fuller use of water.61

A somewhat related physical solution is found in statutes allowing

appropriators to exchange water, especially stored water in return for

direct flow, where the appropriators are so situated with regard to the

stream and storage reservoir that an exchange will lessen their pumping

costs or avoid conveyance losses. A simple example would be where the

owners of storage rights, seeking to irrigate land above the reservoir

without pumping, agree to release water from the reservoir for downstream








- 34 -


direct flow appropriators in return for the right to divert direct flow water

by gravity above the reservoir.62 But neither rotation nor exchange agree-

ments are allowed to interfere with the rights of others, meaning, for in-

stance, that a senior appropriator without need for water can not loan it to

a junior appropriator when to do so would deprive an appropriator of inter-

mediate priority of his prior right to whatever water the senior appropriator

does not need.63

A further physical solution encouraged by some courts relates to the

concept of salvage. Salvaged water results from improvements in methods of

diverting, conveying, and applying water which reduce the amount lost to use

by seepage and evaporation; the person making improvements that reduce

reasonable losses in his own or in another's irrigation system is given the

right to use the water thus salvaged. For example, in cases where a

senior appropriator's method of diversion is deemed reasonable, a junior

appropriator may be permitted to make an interfering use by compensating

the senior appropriator for alterations thereby necessitated in his

diversion method.65 In other situations a junior appropriator is allowed

to make an interfering use by providing the senior appropriator with a sub-

stitute source of supply. As long as the cost of improving existing sys-

tems is not prohibitive, the concept of salvage encourages the reduction

of losses and, as noted by one reviewer, this concept "has been receiving

constantly growing favor in the courts."

A final auxiliary measure here, one that is not exactly a physical

solution, is the right given anyone by statute in several states to purchase

surplus water for which the appropriator with the right to it has no need;

transportation charges, customary rates for water in the locality, or some

similar payment must be tendered along with the demand for delivery of

such water.67 In this way an appropriator having surplus water is required








- 35 -


to allow a reasonable beneficial use to be made of it.

ii. Wasteful locations.

The requirement of reasonable beneficial use has apparently not been

applied to problems of wasteful location to any significant degree. It has

been quite unavailing against the problem of excessive channel losses incurred

in satisfying senior downstream priorities. Even though conveyance losses of

50% or more of the water diverted into an irrigation system may be deemed

unreasonable,68 it has been doubted whether a 50% channel loss between the

points of diversion of junior and senior appropriators would be held un-

reasonable by any court.69 Indeed, as long as a usable amount of water will

reach senior downstream users, it appears that courts will protect them even

though channel losses are several times the amount reaching them.7 The

Nebraska court71 fairly recently upheld the rights of downstream appropriators

in a case where channel losses of 77% were sustained; in response to the

argument that the doctrine of reasonable use should be applied to prevent such

losses, the court said

"...we cannot agree that the doctrine of reasonable use
can be applied in a case where delivery of a usable
quantity of water can be made, although the losses suf-
fered in doing so are great /t isj the duty of
the administrator .. to enforce existing priorities,
not to determine, change or amend them."'71a



The problem of use on poor soil has been equally untouched to date by

the concept of reasonable beneficial use. A careful student of western law

recently concluded72 that

"...the prior appropriator has been protected in the
exercise of his valid right wherever situated on the
stream. .From an economic standpoint, the require-
ment that an entire stream be permitted to flow past
large areas of good irrigable land in order to ir-
rigate lands of less value on the lower reaches of
the stream may be subject to criticism; nevertheless
those downstream prior appropriative rights are


- .._ Ld^---.----.--~-~l








36 -


established property rights which the courts have
uniformly protected. ./Jhe power of the state to
regulate uses of water in the interest of the public
welfare has not been extended to the abrogation of
established rights in favor of higher or better uses
without compensation."

It has even been considered doubtful whether administrative officials have

adequate authority to refuse applications for new rights on poor soil.73

It has been increasingly urged that the requirement of reasonable

beneficial use be applied to these situations of wasteful location. As to

new rights, it is recommended that administrative officials be given specific

authority to reject applications that would involve excessive channel losses

or use on poor land,74 The bulk of the problem of wasteful location in the

West, however, concerns uses under existing rights. To reduce waste, it has

been suggested that downstream priorities be protected only where the amount

of water reaching them is reasonable -- not just usable -- in relation to the
75
amount a junior upstream appropriator must allow to flow past him.75 It has

also been suggested that appropriators be compelled, on penalty of forfeiture,

to change their place of use in aggravated instances of channel losses or

uses on poor land;6 changes so far have been optional with appropriators

and have often been difficult to make for reasons that will be discussed pre-

sently. Conditions such as these could, of course, be attached to new

rights yet to be granted. Physical solutions may also be possible: where

a downstream appropriator could pump ground water or stream underflow he

might be denied preservation of a surface flow involving excessive losses;

upstream users would thereby be able to salvage these losses and, where

equitable, they might be required to compensate the downstream user for the

cost of his changed means of diversion.77 Finally, in some western areas,

it has been pointed out that considerable opportunity exists for ending

wasteful irrigation of poor land in the operation and reorganization of

irrigation districts.78


-7


_ ___ __ __ _____ _~_~_1~_ i





A *


37 -


Changes in Place of Use. A ready solution to many problems of waste-

ful location would appear to lie in changing the place of use,to better lo-

cations. As already indicated, changes of this nature, as well as changes

in the point of diversion and purpose of use, are generally permitted, sub-

ject to administrative approval and on condition that the rights of others

not be injured. In some states certain minor or temporary changes may even

be made without invoking full administrative procedures.79 On the other

hand, a particularly severe Wyoming statute requires forfeiture of priority

on change of place of use under a direct delivery right (as distinguished

from a storage right);79a Arizona allows changes in the place of irrigation

use only if for natural causes it is impractical to make a beneficial and

economic use at the existing site,79b and South Dakota has adopted the same

provision but without the requirement that natural causes be the reason for
79c
the impracticality of the existing site.79 These occasional restrictions

have been labeled a "step backward" in the effort to secure the application

of water to the best available land.80

Despite the rights given appropriators in most states to change their

place of use, however, opportunities for substantially enhancing the reason-

able beneficial use of water in this manner are quite restricted in many

situations. It has already been mentioned that interdependencies among

uses may prevent many changes if other users are to be protected in the

preservation of stream conditions prevailing when their uses began. An

appropriator applying for permission to make a change is said to face a

particularly onerous burden of proof of showing no injury to others in some

states.81 At the same time, administrative procedures for passing upon

proposed changes have also been criticized on the ground that adequate op-

portunity is not always extended for hearing protests of persons likely to

be affected by a change. In addition, these procedures are criticized








38 -


for lack of any requirement that changes not be contrary to the public in-

terest, thus giving the agency some power to prevent changes to more waste-

ful locations (or purposes).83


iii. Wasteful purposes.

No right to use water may be acquired unless the use be for a beneficial

purpose. Appropriation statutes usually state this requirement in general

terms. Occasionally, though, they itemize the particular purposes for which

rights may be acquired, and purposes not included are consequently deemed
84
non-beneficial. Some further indication of purposes that may not be

regarded as beneficial is conveyed by court decisions refusing to recognize

rights under certain conditions; for example, in order to allow better uses

to be made the courts have prohibited appropriations of water to drown

squirrels and gophers in crop land,85 to form a winter ice cap to retain
86
more moisture in the soil, to remove debris at times when water is more

valuable for irrigation, and to maintain a scenic waterfall even though
88
it had become the center of much resort development. On the other hand,

the courts have recognized rights for irrigation of uncultivated land as

long as its (quite low) productivity is materially increased,89 and they

have permitted the irrigation of any kind of crop even though some crops

may require several times as much water as others.90

In the development of the appropriation system to date, it appears

that a use for a purpose that is beneficial when begun may be continued

forever even if at some later time other uses of the water would be appre-

ciably more reasonable and beneficial. It is in such ways that the element

of priority is dominant in the appropriation system; by contrast with the

concept of reasonable use in riparian theory, the oft-repeated requirement

of reasonable beneficial use has not been employed to compell modification





a


39 -


or termination of an original purpose of use that subsequently becomes

relatively undesirable and therefore wasteful. If water used under existing

appropriation rights is to be shifted to temporarily or permanently more

important uses, the shift must be made as a voluntary change of purpose or
90a
by condemnation under preference provisions.0a Voluntary changes in the

purpose of use are particularly difficult to make without injuring the

rights of many others, especially if the new use is a more consumptive one

or also requires a change in place of use, and attempted changes frequently

entail highly complex procedures and adjustments.91 Changes of purposes

under preference provisions are discussed below.

Auxiliary Remedies. There have been occasional instances where the

problem of wasteful purposes in times of temporary shortage has been

mitigated somewhat by techniques that might be considered auxiliary to the

concept of reasonable beneficial use. Statutes in a number of states pro-

vide that water shall be prorated among consumers of an irrigation company
92
during shortages, and similar statutes are authorized by constitution in

a few other states;3 the court in one state -- Colorado -- has, however,

taken an unfavorable view of such provisions.9 In Washington an 1890

statute later repealed provided for prorationing among all appropriators,

not just among consumers of irrigation companies,95 but this statute may be

almost unique in western law. It has recently been predicted that concern

for the plight of individual irrigators and the importance of safeguarding

the public food supply may bring an increasing trend toward prorationing

among appropriators generally, with payment of compensation to senior

rights. Although it has been questioned whether existing rights in some

states could be subjected to prorationing even with compensation, there is

no doubt that new rights could be granted subject to prorationing with or

without compensation.97












In addition to occasional provisions for prorationing, there appear

to have been some cases in which lower courts have issued adjudication decrees

providing for other than strict enforcement of priorities during shortages.

One instance has been described where the court adopted a "sliding scale"

method of distributing water whereby all rights, in the usual reverse order of

priority, were first reduced to 75% and then to 60% of their full amounts be-

fore the supply to junior rights would be further curtailed in behalf of senior
98
rights. Other cases in which lower courts resisted a strict enforcement of

priorities during shortages have also been cited.99 Such instances, however,

are not reflected in decisions of the courts of last resort.

Prorationing and sliding scales are mechanical techniques that do not
99a
necessarily permit use of water where most valuable during temporary shortages,

but they may constitute considerably more desirable bases for distributing
100
water than the strict enforcement of priorities at such times. Neverthe-

less, these techniques do not seem to have played a conspicuous role in the

West, and changes to temporarily more important purposes -- as to permanent-

ly more important ones -- probably can be accomplished in significant degree

only through voluntary changes and through the operation of preference pro-

visions.


b) Forfeiture

Reasonable beneficial use is as necessary to maintain a right as to

create it. Failure to use water for the purpose for which it was acquired

results in loss of the right by forfeiture or abandonment; partial failure

to use water results in a pro tanto loss of the right. In this sense the re-

quirement of reasonable beneficial use and the remedy of forfeiture are

closely related.

Decisions in every western state recognize the doctrine of abandonment,


_~I__ _____________~__~ __





4


41 -


the essential elements of which are voluntary nonuse plus an intent to

abandon the right; the intent may be inferred from nonuse for an unreason-

able time and from other conduct of the owner. Forfeiture is a creature of

statutes which have been adopted in all but two of the states. These statutes

provide that a right shall terminate on failure to make beneficial use of

water for a specific period of time, usually set between two and five years;

absence of intent to abandon the right does not bar forfeiture, though ex-

ceptions are occasionally made for involuntary nonuse without fault on the

part of the owner.01 Where appropriation rights are subject to forfeiture,

therefore, abandonment retains significance only where rights have gone un-
102
used for a period that is less than the forfeiture period.

In addition to these two doctrines for the loss of completed appropria-

tion rights, a permit under which use has not been begun in accordance with

the conditions of its issuance may be cancelled by the administrative agency

in most states.103

Forfeiture of rights has been considered a remedy only for total or

partial nonuse of water, and it is apparent from the foregoing discussion

of reasonable beneficial use that forfeiture has not been employed as a

remedy for situations where water is actually used but in wasteful amounts,

at wasteful locations, or for wasteful purposes. It would seem that for-

feiture need not be restricted solely to situations of nonuse, however, and

several of the already mentioned suggestions for greater enforcement of the

requirement of reasonable beneficial use contemplate forfeiture as a
104
partial remedy for such problems as uses at wasteful locations or in

wasteful amounts under excessive early decrees.105 But even in its re-

stricted field of application, the requirement of forfeiture has not

always been adequately enforced. Despite the appropriation principle's

strong emphasis on reasonable beneficial use and loss of rights for












nonuse, in some states -- especially Oregon and Texas -- ineffective pro-

cedures for detecting nonuse and declaring forfeitures have permitted a

large number of theoretically invalid rights to remain in existence. These

so-called "paper rights" or "stale claims" have created considerable un-

certainty both for existing appropriators and would-be new users needing

to know the amount of water covered by valid rights senior to them. The

problem of nonuse in these two states will be returned to shortly.

Forfeiture and abandonment must be declared in formal proceedings;

they do not occur automatically. These proceedings ordinarily must culminate

in a judicial decree, but administrative agencies often conduct preliminary

investigations and hearings. (Cancellation of permits, however, may

usually be accomplished by administrative action, subject, of course, to

judicial review on appeal.) Forfeitures may be declared in general

adjudication proceedings or in actions brought against specific rights by

private parties or by the state agency.

Adjudication proceedings are a convenient technique for declaring

forfeitures for nonuse prior to the proceeding. The usual form of ad-

judication procedure, in which the preliminary order of the state agency

is made the basis for a court action, has been upheld by the United States

Supreme Court Oa and, with few exceptions, by the state courts. A

less common procedure, whereby a final order of adjudication may be ren-

dered by the state agency itself (subject to judicial review if appealed),

has been upheld in Wyoming 0 and Nebraska.10 Part of the problems of

paper rights in Texas stems from that court's invalidation in 1921 of

provisions in the 1917 Water Code establishing this latter form of

adjudication procedure.109 Subsequently, a lower Texas court declared

that the state agency could not cancel permits for failure to commence a

beneficial use of water under them.110


__


~~ ~L-i~~Z-`~ ;-~ I--- ~~---I-- ---` ~ ~~~~~-- .








43 -


Actions brought for the forfeiture of a specific right may usually be

commenced on an administrative level by a private individual who would bene-

fit from having the right declared forfeited,111 and in some states the agency
112
itself may commence such proceedings. Whether the administrative proceed-

ing be initiated by a private individual or by the agency itself, in most

states the agency's finding of forfeiture must be filed in court as the basis

of a judicial action. Many courts, however, have not hesitated to state that
113
they "abhor a forfeiture"13 and "rill not lightly decree an abandonment of a

property so valuable as that of water in an irrigating region".114 Con-

sequently, they have placed a heavy burden of proof on a party alleging a

forfeiture and have sometimes restricted the availability of forfeiture decrees

in other ways which have been criticized as making the requirement of for-

feiture "almost impossible of enforcement". 5

To facilitate the elimination of paper rights, it has been suggested

that the person who has failed to use water might be given the burden of
116
proving no forfeiture.6 A frequent recommendation has been that adminis-

trative agencies in all states be given the authority to initiate forfeiture
' 118
proceedings on their own motion. A procedure that has drawn recent praise

is that of Nebraska, where the state agency makes regular surveys of all

uses and, where nonuse is apparent, holds hearings and declares forfeited

any right under which water has not been beneficially used for a period of

three years; the agency's order of forfeiture may be appealed to the courts,
119
but it is a final order unless reversed or modified on appeal. Greater

administrative action is also being undertaken to solve the acute problem

of paper rights in Oregon and Texas today.

In Oregon 24,000 permits and certificates have been issued for the

use of water, and those granted for irrigation authorize almost twice the

acreage actually irrigated. An official report to the legislature early

i i !








- 44 -


in 1955 lamented that the then-existing procedures for declaring the loss of

rights for nonuse120 were "cumbersome and expensive," and it recommended that
the cost of a state fact-finding survey (such as is contemplated by the Nebraska

statute) be reduced by requiring each holder of a water right to file an annual

statement of the amount of water beneficially used, with loss of the right on

failure so to file.121 While the legislature later in 1955 did not impose any

requirement of annual reports on users of stream water, it did reenact in

strengthened form the statutes establishing administrative procedures both

for the cancellation of abandoned rights and for the adjudication of all

rights generally.

An even more acute problem of paper rights exists in Texas, where the

amount of outstanding appropriation rights is four times the amount of water

being used. The paper rights consist of originally valid rights that have

gone partially or completely unused for some time and permits under which

there has been a partial or complete failure ever to commence a beneficial

use of water. The adverse court decisions in Texas previously mentioned

have discouraged the administrative agency from attempting to cancel invalid

permits,125 and the legislature has not reenacted statutes establishing ad-
126
Judication procedures despite an invitation by the court to do so. The

problem of paper rights has been a subject of intense discussion and con-

siderable legislative interest in the last several years; numerous solutions

to the problem have been proposed, and two statutes designed to mitigate

part of the problem have recently been enacted. A 1953 statute128 authorized

the state agency to cancel all appropriation rights granted before 1945 under

which no beneficial use at all was made during the ten years between 1945 and

1955, thus allowing nonusers a two-year grace period in which to begin use

after enactment of the statute.129 To assist the agency in detecting nonuse

in the future, a 1955 statute130 requires all water users to file annual re-








45 -


ports on the nature of their uses, with monetary penalties up to $150 imposed

for failure so to report. A further statute enacted in 1955 would have

strengthened the agency's power to cancel the unused portion of rights being

only partially used, but it was vetoed because of a clerical error.31

Elimination of paper rights and the uncertainty they create is essen-

tial in order that prospective new users and the state agency may determine

whether there is likely to be unappropriated water available for new rights,

It also is important in order that existing users may base their plans each

year upon reliable estimates of the amount of water covered by rights senior

to them. Ineffective procedures for eliminating paper rights can lead to

a problem of nonuse that seems quite out of place under the theory of

western law.

As already indicated, the remedy of forfeiture has not been applied to

problems of wasteful use even in states where it has been effectively applied

to the problem of nonuse. Where problems of wasteful use are also beyond

reach of the requirement of reasonable beneficial use, therefore, our search

for a remedy for wasteful use, at least under existing rights, carries us to

an examination of the statutory preference provisions found in western law.


c) Preferences.

Constitutional and statutory provisions in a number of western states

have established a fixed order of preference among the different purposes for

which water may be used. These preferences come into play in two principal

situations. They may allow the subordination or termination of an existing

use, usually on payment of compensation, in order that the water may be re-

allocated to a preferred purpose of use. They may also function as guides

for the state agency in deciding whether to approve, modify, or reject

applications for new rights.









- 46 -


Preference provisions reflect a deep-seated feeling that certain pur-

poses of use are more important than others and that some measures are nec-

essary to offset the relatively fortuitous allocation of water solely on the

basis of time (as distinguished from purpose) of use. Although preferences in

effect indicate that some uses are considered more reasonable and beneficial

than others, however, the remedies of preferences and of reasonable beneficial

use have been applied to problems of waste in quite distinct ways.

Preference provisions are directed chiefly at the problem of wasteful

purposes. Preferences for the subordination or termination of existing uses

constitute one of the few remedies in western law for wasteful purposes of use

under already existing rights. Preference provisions established as guides

for administrative action in passing upon applications are intended to help

prevent the creation of new rights where opportunities for a more beneficial

purpose of use might be available at an early date. The problems of wasteful

amounts and wasteful locations are not directly affected by preferences, but

they may be eased indirectly when wasteful purposes of use which are prevented,

subordinated, or terminated happen to be uses that are wasteful in these

other two respects as well. But for reasons that will be brought out in the

following pages, it is quite possible that existing preference provisions in

the West are not actually a significant remedy even for the problem of waste-

ful purposes.

i. Preferences for the subordination or termination
of existing uses.

A common form of preference provision is that found in the Colorado

Constitution, which declares that:

"...Priority of appropriation shall give the better
right as between those using the water for the same
purpose; but when the waters of any natural stream
are not sufficient for the service of all those de-
siring the use of the same, those using the water
for domestic purposes shall have the preference








-47 -


over those claiming for any other purpose, and those
using the water for agricultural purposes shall have
preference over those using the same for manufactur-
ing purposes."13



This provision appears in substantially identical language in the constitutions
133 134 135 136
of Idaho and Nebraska and in the statutes of Oregon and Utah.13

Domestic and municipal uses are accorded first preference in all states having

preference provisions, and irrigation is usually favored over industrial and

other uses. Wyoming, however, ranks transportation and steam power plants on
137
a par with domestic use;1 Texas places most manufacturing activities ahead
138
of irrigation; and Idaho lists mining and milling in organized mining

districts ahead of agriculture and manufacturing.139 In contrast with the

fixed order of preferences in all of these states, a Washington statute

authorizes the court to determine which use is "superior" and which "inferior"

in each case brought before it.140

Two important questions raised by the wording of several of these

statutes are whether compensation must be paid for the subordination or ter-

mination of an existing use and, if so, whether these provisions allow private

persons to condemn existing rights in order to undertake preferred uses. In

Colorado, it is thought that a "true preference" (one not requiring compensa-

tion) was intended by the drafters of the Constitution, but the Colorado court

viewed with alarm the possibility of large-scale termination of irrigation

rights in favor of municipal uses and held that compensation is necessary;141

though the court has not specifically decided the point, it appears that the

Colorado provision does authorize condemnation of rights by persons without

eminent domain powers under other statutes. 42 The constitutional provisions

in Nebraska and Idaho, drafted under the influence of this decision of the

Colorado court, specify that compensation must be paid and seem to confer


___







- 48 -


condemnation power on private persons. The Washington statute expressly allows

private condemnation of inferior uses on payment of compensation, and it has

been upheld by the state court. 13 The Wyoming statute also makes explicit

provision for private condemnation of existing rights for certain changes to

more favored uses,14 and a companion statute establishes an administrative

procedure for supervising the exercise of this power.145

In Oregon, Texas, and Utah neither of these questions of compensation

and private condemnation are settled by the language of the statutes, and the

courts apparently have not been required to rule on them. No western court,

however, has yet decided that compensation need not be paid where a statute

is silent on this matter, and statutes creating true preferences are quite

uncommon. One of the few examples of a true preference today is presented

by a 1931 statute in Texas declaring that appropriation rights acquired

subsequent to its enactment are granted on the condition that the water may

later be taken for municipal purposes without compensation.146 The un-

certainty caused by this statute has led one critic to label it "an Achilles'

heel to every water permit issued since its enactment," and it has been sug-

gested instead that Texas municipalities be granted the preference for ap-

propriation of specific water in anticipation of future needs that is granted

municipalities in several other states7 (discussed infra).

Though most of these preference provisions would appear to allow

changes to more favored uses either in temporary shortages or on a permanent

basis, several factors indicate that they may have little effect uponthe

vital problem of wasteful purposes of use in western law. The orders of
148
preference in most states reflect the economic conditions of a by-gone era.

The ranking of irrigation over industry is particularly out-moded in many

areas if the function of preferences is to facilitate permanent changes to
149
more important purposes of use, Assuming that preference provisions con-


^____________________________________________J







49 -

fer eminent domain powers on private persons, these provisions would not seem

to alter the position of irrigators with regard to industrial and power users;

irrigators in many states have general eminent domain powers under other

statutes,150 but the expense of condemning rights for industrial and power uses

would ordinarily be prohibitive for irrigation projects whatever the source

of the eminent domain power. Where industrial uses are preferred over ir-

rigation, however, the grant of condemnation power should facilitate changes

to industrial uses wherever such uses are sufficiently more valuable to bear

the cost of compensating all the irrigators whose rights to a preservation of

existing stream conditions might be injured by the change of purpose (and

probably of place of use and point of diversion as well).

Because municipalities in every state have power to condemn property

for water supply purposes, their position would be unaffected by the top pre-

ference accorded domestic and municipal uses. On the other hand, this domestic-

use preference under provisions conferring private condemnation powers may

enable individuals or groups without such power under other statutes to acquire

water rights which they could not purchase at reasonable cost otherwise. As

domestic uses are frequently small enough or sufficiently important to bear

the expense of condemning existing rights for other purposes, it may be that

the main effect of preference provisions (at least those not ranking industry

above irrigation) is to do no more than to facilitate changes to domestic uses.

These preference provisions appear to be even less helpful for encourag-

ing temporary changes to more important purposes of use. As previously in-

dicated, the bulk of the problem of temporarily wasteful purposes in the West

relates to the strict enforcement of priorities among irrigation rights in

shortages without regard to the relative need or value of different crops.

With one exception, however, no preference provision in the West permits the

reallocation of water between uses for the same purpose; the exception is

the Washington statute, but it includes a requirement that the court not








- 50 -


* permit one irrigator to condemn water that is being economically used for ir-

rigation, and this requirement might be construed to protect an economical

irrigator of senior priority during shortages even though a junior appropria-

tor's use would be more valuable.

In addition to the questionable influence of most preference provisions

for facilitating changes to more important uses, it has recently been said

that "the inflexibility associated with prior appropriation is magnified by

the usual adoption of an order of preferences among water uses applicable
uniformly on a state-wide basis.151
uniformly on a state-wide basis." The Washington procedure whereby the

relative importance of different uses is determined in each situation has
152
been recommended as a more desirable technique. It would seem that an

effective procedure for accomplishing changes of wasteful uses could allow

the subordination or termination of existing rights either for temporarily or

permanently more important purposes and also for uses for the same purpose at

less wasteful locations. It has frequently been suggested that consideration

be given to extending private condemnation power to permit the reallocation

of water to a new use that is, say, 50 percent more beneficial than the ex-

isting use, but at the same time it is admitted that preference provisions

to date have not been applied in any such manner.153

ii. Preferences in the acquisition of new rights.

Preference provisions in several states are made specifically applicable

to the acquisition of new rights. In a few states the provisions require

that, when competing applications for appropriation of the same water are

pending concurrently, the agency must approve the application contemplating

the more preferred use even though that application had been filed later
154
that the other application.1 In some other states preferences are made

applicable as general guides for administrative action in passing upon ap-
155
plications whether or not competing applications are pending at the same time.


I----~~-~ ~--- -~-1"----~--------~ci--------^----rm^Y







51 -


A similar guide for administrative action generally would seem to lie in the

just mentioned mandatory provisions for the situation of competing applications

and even in the orders of preference in the statutes that allow the subordina-

tion or termination or existing rights.156

Probably the most significant preference in the acquisition of new

rights is that which is accorded to municipalities in many states for ap-

propriation of water in anticipation of future water supply needs. This

preference, established by statute in seven states157 and by court decision

in three others,158 is separate from the usual municipal condemnation power

for water supply purposes and also constitutes an exception to the strict

requirement of western law that beneficial use of water be commenced dili-

gently after issuance of a permit by the state. Three states, however, have

enacted statutes either allowing or requiring the water to be put to a bene-

ficial use pending its later use by the municipality, and provision is made

in these states for suitable temporary uses by others during the interval.159

The preference for the future needs of municipalities should facili-

tate long-term planning in order that water may be used temporarily for bene-

ficial purposes and later shifted to municipal use without heavy cost to the

municipal users and to society generally from the termination of large-in-

vestment uses for which the water might otherwise have been appropriated

prior to the time of municipal need. Except for this preference, however,

it does not seem that preferences relating to the acquisition of new rights

exert a significant influence for the use of water for more important pur-

poses. By favoring irrigation over all other non-domestic uses in most

states, these provisions are as rigid and as out-moded as the quite similar

provisions for the subordination or termination of existing rights. Mbre-

over, even if these provisions ensured the acquisition of rights for the

more important purposes available at the time of acquisition, they do not


j







52 -


facilitate changes to what may be the important purposes at a later time.

Preferences in the acquisition of new rights are closely related to the re-

quirement that new rights not be contrary to the public interest. In con-

clusion here and in anticipation of the discussion of this public interests

standard in the following section, it may be said that neither the reported

decisions nor the general literature on western law indicate that these pref-

erences or this standard of public interest have often been invoked in order

to justify the modification or rejection of an application for a new right.


d) Applications contrary to the public interest.

In all but two of the seventeen western states an application to ap-

propriate water may be denied if the proposed new use would be contrary or

detrimental to the public interest.163 The appropriation statutes that con-

fer this power on administrative officials seldom provide standards for its

exercise, but preference provisions have been considered as one standard of

the public interest in certain instances. There are few reported decisions

relating to denials of applications on this ground, however, and,despite

the favorable judicial attitude reflected in each of them, these cases sug-

gest that this power has been infrequently used to date.

The New Mexico court in a fairly early case indicated that a situation

might arise where the public interest would require rejection of the earlier

of two competing irrigation applications and approval of the subsequently

filed one; among the factors relevant to a determination of the public in-

terest in such a case are the protection of investors and maintenance of

public confidence in the soundness of projects approved by the state, the

costs per acre of irrigation under the competing applications, and the fact

that one group of applicants were settlers on the land to be irrigated while

the other group were out-of-state promoters. The Oregon court has upheld







- 53 -


the denial of an application on public interest grounds where the applicants

had not secured rights to the desert land proposed for irrigation, as ap-

proval of the application would have restricted the state desert land board's

freedom to decide who should receive rights to reclaim the land in question.165

The Nebraska court has approved the issuance of a power permit on condition

that none of the power generated be transmitted out-of-state,166 and the

California court has upheld the state agency in granting a power permit with

the proviso that "the right to store and use water for power purposes under

this permit shall not interfere with future appropriations of said water for

agricultural or municipal purposes. 67 The Utah court fairly recently upheld

the state agency in subordinating an earlier application for power use to an

application for use of the same water as part of a long-planned public de-

velopment project for increasing irrigation, domestic, and industrial sup-

plies in a certain region of the state.168 Finally, a quite recent instance

has been cited where the state agency in Wyoming refused to issue a permit

to a federal project for appropriation of water in Wyoming for irrigation of

land in Nebraska until the project was modified to include some land in

Wyoming as well.69

In both the California and Utah cases the state agencies were guided

by preference provisions which ranked power use below uses for domestic and
170
agricultural purposes, 70and statutes in both states also directed the

agency to grant applications in accordance with "the more beneficial use"

or "the best utilization" of the state's water resources.171 The action of

the agencies in these two cases and in the Wyoming episode just mentioned

suggest that the power to deny applications on public interest grounds may

constitute one technique by which the use of water can be guided in accord-

ance with comprehensive plans for state water resource development. The

usefulness of this technique requires, of course, the formation of compre-


- --AN









54 -


hensive plans to guide administrative action on applications at a time when

a significant amount of unappropriated water still remains available for use.

Even without the formulation of such plans, however, the power to deny ap-

plications as contrary to the public interest might enable the agency to pre-

vent new uses at locations or for purposes that are wasteful under already

prevailing conditions. But applications for such uses probably could not

be denied unless better uses are likely to be proposed within a reasonable

time. Moreover, the power to deny proposed new uses does not help to pre-

vent uses under applications that are approved from becoming wasteful under

different conditions at some later time.


e) Withdrawals or appropriations by the state.

Statutes authorizing temporary or permanent withdrawals of water from

appropriation or empowering a state agency to appropriate water provide one

of the most explicit techniques by which a state can control the initial

pattern of water use. The planning of extensive development projects or the

formulation of comprehensive state plans may extend over a period of years,

and it may be essential that interim measures be taken to prevent others

from appropriating for less desirable purposes the water on which the pro-

jects or the comprehensive plans are to be based. It is probable that this

objective could be attained by denying applications for such uses on public

interest grounds, but more affirmative steps such as withdrawals and ap-

propriations by the state may be desirable in order that would-be users may

be put on notice and helped to avoid the losses involved in planning and ap-

plying for projects that will only be rejected as contrary to the public

interest. Withdrawals and appropriations by the state are not authorized

in many states, however, and the effectiveness of these techniques depends

upon the amount of unappropriated water remaining and on the vigor with


~


------ ------, -~-~-Y-l- tlrac------~ ,~.,.;.~~...-.~,,_.
-----~








- 55 -


which the large-scale projects or planning is pursued.

Withdrawals of water from appropriation may be ordered by the state

agency in South Dakota pending an investigation of its most complete utiliza-

tion, and the agency may also withdraw water which is to be the basis of

later federal projects.172 A Utah statute authorizes the governor to suspend

the right to appropriate when the public interest requires preservation of the

supply for some particular use.173 Oregon has by statute permanently with-

drawn from appropriation the water of numerous streams to preserve their

scenic attraction and fish life,174 and one observer has noted a possible

trend toward the limitation of large development projects elsewhere in order

to maintain sufficient stream flow for fish and wildlife and recreational

purposes 175

Where a specific program of public resource development is proposed,

a state agency has occasionally been given a right to appropriate that is

broader and subject to less procedural requirements than the right given

private persons.176 The notable use of this technique in California has

already been referred to above in the discussion of problems of wasteful

location stemming from political restrictions.177 Over the past thirty

years the California Department of Finance has filed at least sixty applica-

tions for appropriation of water in pursuance of that state's extensive,

long-range State Water Plan for the diversion and conveyance of water from

watersheds of perennial surplus to agricultural and urban areas of deficit
178
rainfall.178 These filings give the State a prior right over any later

appropriators making use of the water pending its later use by the State.

This priority may be released or the application assigned other agencies or

persons when their intended uses would not conflict with the Water Plan and

would not take from counties of surplus supply the water necessary for their

future development. Where conflict with the Water Plan has appeared probable





* 4


56 -


but the release or assignment has been deemed in the public interest, permits

have been issued for use of the water subject to various reservations to pro-

tect the State's greater interest in the eventual incorporation of the water

into its comprehensive program.


f) Limitations on duration of rights.

Many problems of waste in western law may be partially attributed to

the fact that appropriation rights are almost always granted in perpetuity.

Uses at wasteful locations or for wasteful purposes might eventually be ter-

minated if rights were granted by the state for limited periods of time, but

there appears to have been almost no experimentation to determine whether

rights could be issued for a finite period sufficient to protect a user's

investment but not so long that changed conditions might render the use un-

desirably wasteful.

Rights of limited duration have been issued in certain special situa-

tions, as where water appropriated for future municipal needs is temporarily

devoted to other uses,179 but with such exceptions the only instances of

rights of limited duration seem to concern appropriations for the generation

of power. A fifty-year limit on power rights is set by statute in Nebraska

and Oregon;180 in Arizona a forty-year limit is set, and appropriations for
181
more than 25,000 horsepower can be granted only by the legislature. The

appropriator is generally accorded preferential treatment in reappropriation

of the water at the end of this time or is entitled to compensation from

the state or the next appropriator for his unamortized investment or the

value of existing improvements.

Limitations on the duration of power rights may reflect the expecta-

tion that dams and storage reservoirs often have a useful life of only fifty

or seventy-five years; after this time the right to appropriate water for


J








57 -


power purposes at the original site would be worthless, and no other site

may be available to which the right can be changed without interfering with

many other rights. But these limitations on duration of power rights may

also reflect the low preference accorded water power uses in all orders of

preference, perhaps because alternative sources of power are usually avail-

able (even though higher costs may be incurred) and it is thought desirable

to allow for economic expansion by taking steps to reserve water resources

for activities in which water has no substitute. This latter reason for

limiting the duration of power rights, if true, is not far removed from the

general reason for confining all rights to finite periods in order to permit

some future reallocation of water to more important places or purposes of use.

If an appropriation system of rights is to be adopted, the issuance of rights

of only limited duration, coupled with measures for easing individual and

social losses resulting from termination of uses under them, deserves serious

study as a means of moderating the rigidity of such a system. But this

promising technique has been infrequently used and consequently of little

significance in the West, and it is highly unlikely that the many existing

rights already granted in perpetuity could or would now be limited to a

finite period of time.

g) Fees for the use of water.

If the state were to exact periodic fees for the use of water, it is

conceivable that a schedule of charges could be established which would

discourage wasteful amounts of use and perhaps even some uses at wasteful

locations or for wasteful purposes. There appears to be no doubt that fees
182
may constitutionally be charged by the state in connection with new uses,82

but the effectiveness of this technique has rarely been explored in the West.

Nebraska and Oregon require power users to pay annual fees proportioned to

the amount of water used.183 For several years South Dakota imposed an annual

_____________________________


~I~ ____ _1~1_~ ---F--l----iX .--- -~ -~.-- ----I ______ __ ___~1








- 58 -


"tax" on the output of deep artesian wells, declaring the measure to be for

the conservation of natural resources and regulation of the use of artesian
1814.
water rather than for the raising of revenue.184 In California, a 1913

statute since repealed prescribed both filing fees and annual use fees of

some magnitude.185 Various fees are charged in all states in connection

with the filing of applications for new rights or changes of existing ones,

the adjudication of rights, and often the distribution of water by adminis-

trative officials. But these fees are quite different from periodic fees

for the use of water. With such scattered exceptions as those just listed,

periodic fees have not been exacted, and the potential of this technique

both as an incentive to efficient use of water and as a source of funds for

more vigorous administrative supervision of uses has been untested to date.


3) Possible Trend Toward a Less Strict Enforcement of Priorities.

ost problems of waste in western law stem, as already indicated,

from the creation and strict enforcement of priorities among appropriation

rights. The right of an appropriator to continue forever the same purpose

of use at the same location is particularly responsible for the serious

problems of wasteful purpose and location which have gradually become ap-

parent under the appropriation system. The dominance of the element of

priority has prevented or retarded changes to smaller amounts or to dif-

ferent places or purposes where such changes would allow a higher beneficial

use of limited water resources. In recent decades, however, a number of com-

mentators have detected what may be a trend toward relaxation of priorities

in some circumstances. Any survey of problems in western law must take par-

ticular note of the possible existence of such a trend and its relation to

problems of waste.

The appropriation system has beep called quite suitable to the condi-





4 9


59 -


tions of a pioneer economy, where encouragement to resource development is

of prime concern and the restrictions of a limited endowment of natural re-

sources are not keenly felt. But in the evolution of the appropriation sys-

tem greater emphasis came to be placed on the element of priority than on

the requirement of reasonable beneficial use, and the ideas of private rights

and investment protection were elevated into goals distinct from and often in

competition with the goal of highest beneficial use of water.186 As a result,

commentators who have praised the appropriation system for its contribution

to the growth of a pioneer economy have also pointed out the waste and in-

efficiency associated with such a system at later stages of development.187

Many of these same commentators have also claimed that an increasing awareness

of this waste has led to a trend toward a less strict enforcement of priori-

ties in some situation.

As early as 1908 one observer hailed the emergence of a "principle of

unreasonable priority" in the inclination of some courts to apply a test of

reasonableness in the enforcement of priorities during shortages and in the

adjudication of claims purporting to encompass the entire flow of a stream.18

Some have asserted that administrative powers and procedures relating to the

acquisition and adjudication of rights and the distribution of water have

been so successful in their assigned task of enforcing priorities that the

harsh consequences of their strict enforcement have brought the element of

priority into disrepute.89 On the other hand most commentators have con-

cluded that this administrative structure has developed to a point where

western law can no longer be characterized as a system based primarily upon

the doctrine of appropriation, although there are differing opinions as to

bow completely this doctrine has been displaced by state regulation of the

use of water.190

The extent to which priorities are strictly enforced in actual prac-


di_





4 0


60 -


tice probably could be ascertained only through intimate study of the function-

ing of the administrative appropriation system. Little relaxation of priori-

ties has been detected in the courts of last resort, but some observers have

sensed a more flexible approach on the administrative level as the requirement

of reasonable beneficial use has come more to the fore. Perhaps the most

widely quoted statement of the trend appeared in a 1936 review which conclud-

ed that

"...adjusting uses that are now on hand seems to be getting
more attention than additional development. In terms of
law, the moderating principles of correlative rights and
reasonable use seem to be outstripping exclusive rghts
by priority of appropriation in general esteem.

Whatever may be the extent to which priorities are being more reason-

ably enforced today, however, it is unlikely that many basic problems of

waste have been appreciably reduced in this way. Perhaps the most frequent

situation of more flexible enforcement is during periods of temporary

shortage, when some allowance may be made for the needs of temporarily more

important purposes. But a relaxation of priorities at such times does not

ameliorate the general problems of use at wasteful locations or for permanently

less important purposes. Furthermore, these problems may become increasingly

serious in the West, where the administrative appropriation system continues

to be strongly favored, at least by contrast to the riparian system.192

4) Summary

It does not appear that the various remedies here reviewed have been

extensively developed in western experience thus far. The requirement of

reasonable beneficial use has been applied primarily against certain problems

of wasteful amounts but not so as to cause the termination or change of uses

wasteful in location or purpose. The requirement of forfeiture has been

applied only against actual nonuse of water and not against its inefficient

use. Preferences, in their usual form, may make almost no contribution to

____________________________________________J


~l~i ~ ____ _____~C__~









61 -


the solution of problems of waste. Lastly, there has been generally little

use of the remedies that may be offered by the power to deny applications

contrary to the public interest, by withdrawals and appropriations by the

state, and by grants of rights for only limited periods of time.

Many of these remedies, however, may have a potential usefulness that

has not been drawn upon in the West to date, and it might be well here to

summarize the various ways in which they might be more fully employed against

problems of waste.

The problem of wasteful amounts must be attacked primarily by more

vigorous supervision and enforcement of the requirement of reasonable bene-

ficial use. Where wasteful amounts are being used because of the adjudica-

tion of excessive amounts in early decrees, the excessive portion of these

rights might be declared forfeited for failure to make a reasonable and

beneficial use of that portion. Care must be taken that new rights be

granted only for that amount of water reasonably necessary to each proposed

use, and wasteful amounts of use under new rights might be discouraged if

they were granted subject to the payment of periodic fees based on the

amount of water used.

Where existing uses create problems of wasteful location or waste-

ful purpose, changes to better locations or purposes might be encouraged in

various ways and compelled in aggravated cases. Application of the require-

ment of reasonable beneficial use might be extended to compel certain changes

of location on penalty of forfeiture, and it might also be extended to

justify some scheme of prorationing in temporary shortages. In order to

facilitate changes to permanently more important uses, it may be desirable

to modify the traditional form ofpreference provision in favor of a technique,

such as that in Washington, which allows changes to whatever may be the

superior use in each situation. It may also be necessary to reconsider the








- 62 -


degree to which other users should be protected against altered conditions

of stream flow in some cases.

Problems of wasteful location and purpose with regard to rights to

be granted in the future may be anticipated somewhat by careful planning

and control over the initiation of new uses. The state may exert substan-

tial control over the pattern of initial use of water by denials of applica-

tions contrary to the public interest and by withdrawals and appropriations

of water in line with concrete policies for over-all water resource develop-

ment. But additional steps, such as limiting the duration of rights, may

be necessary to prevent new uses from becoming wasteful in location or pur-

pose under different conditions at some future time.


C. Problems Other Than Those Relating to Waste.

Apart from the foregoing problems of waste, there are various other

problems in western law that are relevant to a consideration of proposed

appropriation legislation in the East. -No attempt is made here to catalog

all relevant problems from western experience; in particular, many important

problems of administrative law and practice that have arisen in the develop-

ment of the administrative appropriation system must be deemed beyond the

scope of this paper. The few problems selected for mention here have one

feature in common they represent areas of uncertainty in western law that

are at least partly avoidable. This uncertainty may result from weaknesses

of administration or from unsettled legal theory. In either case, it would

seem that these are problems which might well be anticipated in drafting

the substantive and procedural provisions of appropriation proposals in the

East.

1) Coexistence of Appropriation and Riparian Rights of Reasonable
Use.

While all seventeen western states recognized appropriation rights


_








63 -


during the first decades of their settlement, riparian rights were also

recognized at an early time in nine of these states. The problems encountered

in attempting to coordinate these two types of rights constitute a sub-

stantial part of the history of western law. It is sufficient to remark here

that the uncertainty engendered by riparian rights has led most of these

states to resort to such measures as the elimination of unused rights and the

limitation of used rights to a specific maximum amount of water.9l In

California and Texas, however, riparian rights of reasonable use continue to

play an important role in the allocation of stream water, though in both
195
states the scope of these rights has been narrowed to some extent.195 In

these states a riparian's right is subject to all appropriation rights ac-

quired before his riparian land was patented but is superior to all appro-

priations commenced after patenting; as in traditional riparian theory,

however, the rights of all riparians are equal among themselves. Conse-

quently, a riparian may begin or expand his use at any time and in any

amount that is deemed reasonable, and junior appropriation rights -- as

well as all riparian rights -- are held subject to the resulting un-

certainty. The continued existence of riparian rights of reasonable use

in California has long been a matter of intense controversy,196 and in

Texas an increasingly acute problem of water allocation is currently

evoking numerous suggestions for a considerable modification or narrowing

of these rights.197

2) Rights to Return Water.

A considerable portion of the water diverted and applied to a

particular use may not be consumed and is therefore available for subse-

quent use. The name "return water" is generally applied to unconsumed

water making its way back to a stream or other source of supply in drainage

ditches, as uncontrolled surface flow, or by seepage through the soil.

_______





i-~-


64 -


Return water has become a vital factor in western water development, and

many uses are based almost entirely upon it. In some instances the presence

of return water has made possible a fuller total utilization of water than

might otherwise have been achieved, as where return water from upstream

uses has reentered the stream at such a time that the dry-season flow avail-
198
able for downstream use is increased. In addition to enabling greater

use by others, the use of return water may be an important matter to the

project from which it results. If an irrigator may recapture and reuse

return water from his own operations; he can appreciably increase the

acreage irrigated or the yield per acre, thus permitting him to spread the

overhead costs of development over a larger basis of production.

The question of rights to use return water has been called "an

outstanding problem in western law", for in many respects the law on this

subject is "still in a formative stage."199 The right of the original

appropriator of the water to reuse it may depend upon whether the water

has not yet left his land, has left the land but has not reentered the

stream, or has reentered the stream; his right may be affected by the

time that elapses between the first appearance of the return water and

his attempt to reuse it, and it is also influenced by whether he an-

nounced an intention at the commencement of his project to reuse whatever
200
return water should result from his proposed use. Where the water is

not reused by the original appropriator, other persons along its return

route may attempt to use it before it renters a stream, and conflicts

can arise both among such persons and also between them and appropriators
201
from the stream which the return water would otherwise enter. To the

extent the law as to return water is unsettled, a considerable degree of

uncertainty attaches to the use of such water either by the original appro-

priator or by persons intercepting it en route to the stream or diverting it








65 -


after its reentry into the stream.202

3) Acquisition of Prescriptive Rights.

Western appropriation codes generally prescribe that the procedure

for acquiring rights by application to a state agency shall be the exclusive

method for the acquisition of new rights.203

It is not always clear, however, whether these acquisition procedures

are meant to be so exclusive that prescriptive rights to the use of water

may no longer be acquired. The doctrine of prescription, as applied to the

use of water, has apparently fallen into fairly general disfavor in the West;
204
it has been expressly eliminated by the appropriation codes of Nevada and

Utah,205 and the courts in New Mexico, Oregon, and Wyoming have indicated

some doubt as to whether the doctrine yet survives in those states.206

Elsewhere, its continued existence is an open question.

Several factors have been said to bear upon this question in the

absence of explicit statutory provisions. To support a decision that pre-

scriptive rights may no longer be acquired, it would be necessary for a

court to hold either (1) that the administrative procedures for acquiring

rights do exclude prescription as a mode of acquisition; or (2) that

adverse use by another causes a forfeiture of one's right and that the

forfeiture period expires before the end of the prescriptive period, with

the water thus reverting to the state for new appropriation in accordance

with administrative acquisition procedures; or (3) that the administrative

procedure for passing upon proposed changes in point of diversion or place

or purpose of use are so exclusive that acquisition of prescriptive rights,

which would necessarily involve a change in some respect, is barred in

this way.207 A recent study of the problem in Texas has concluded that

this third ground affords the most likely basis for a decision that pre-

scription has been eliminated in that state,208 while several studies of








- 66 -


the appropriation statutes of California have resulted in conflicting con-

clusions as to the present role of the doctrine there.209 A model appro-

priation code proposed for the western states generally would provide that

adverse use for the prescriptive period operate to terminate an existing

right but not to create a new right in the adverse user unless he also

fulfills the requirements of the administrative acquisition procedures.210

4) Inadequate Data on the Amount of Inappropriated Water.

The importance of adequate records on the amount of water covered by

and being used under existing rights has already been indicated in connec-

tion with the remedy of forfeiture. Such records, as well as data on the

total supply of water in a stream, are also essential in order that po-

tential new users and the state agency may determine whether there is yet

any unappropriated water remaining for use under new rights. The agency

is prohibited by statute from granting a permit where no unappropriated

water is available, and the issuance of a permit merely reflects the

agency's belief that water will prove to be available for the proposed use;

but if the use is later found to interfere with existing rights, the pos-

session of a permit does not protect the new user against injunction by

holders of these rights. Where, consequently, there is some doubt as to

whether unappropriated water is available for a proposed use, the agency

may be confronted with a difficult choice. A denial of the application

runs the risk that unappropriated water does exist and will continue to

pass unused, while an approval of the application may result in temporary

interference with existing rights and then in an injunction and loss of
211
investment in the new use211

Uncertainty as to the amount of unappropriated water is to some ex-

tent unavoidable, especially after a fairly intensive level of total use has

developed. Hydrologic data on the total supply of water that may be ex-








- 67 -


pected at any time is frequently complex and costly to gather, and a precise

determination of the amount of total supply can seldom be made. Moreover, it

is often difficult to anticipate the effect a particular new use will have

upon established uses further downstream. But this uncertainty is unneces-

sarily aggravated when administrative records on the extent of existing

rights are inadequate to enable the agency to estimate how much of the ex-

pected total supply has already been appropriated. The remedy for this

problem probably lies in providing the agency with more ample funds and

authority for an effective gathering of data and supervision of existing

uses. One particularly helpful measure, the requirement of periodic reports

on the use of water under each right, would appear to be within the power of

the agency to adopt under the general rule-making authority it is customarily

granted by statute. The recent enactment of special legislation establishing

such a requirement in Texas and proposals for similar legislation in Oregon,

however, indicate that this rule-making authority may need supplementing in

some instances.




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