Title: Western Problems and the Eastern Appropriation Proposals
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 Material Information
Title: Western Problems and the Eastern Appropriation Proposals
Physical Description: Book
Language: English
Publisher: The Conservation Foundation
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Western Problems and the Eastern Appropriation Proposals
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 35
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003182
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Part III -- Western Problems and the Eastern Appropriation Proposals


The discussion in Part II of problems in the administrative appro-

priation system of western law has proceeded without reference to the pro-

posals for adoption of appropriation legislation in various eastern states.

In concluding this paper, therefore, several comments may be in order concern-

ing the extent to which similar problems might result from enactment of such

legislation in the East. The appearance of such problems would be determined

both by conditions of water use and supply in this part of the country and

by the precise nature of the legislation enacted. Eastern conditions of use

and supply vary considerably from those prevailing in the West, but an in-

quiry into them, though essential in the consideration of any new legisla-

tion, falls beyond the scope of this paper. On the other hand, it is pos-

sible here to review certain provisions of the eastern appropriation pro-

posals to ascertain the degree to which they reflect an awareness of pro-

blems associated with such legislation in the West. The miscellaneous

problems described at the end of Part II will be dealt with first, after

which our attention will return to the problems of waste discussed earlier.


A. Problems Other Than Those Relating to Waste.

1) Coexistence of Appropriation and Riparian Reasonable-Use Rights.

The coexistence of both riparian and appropriation rights would result

only under the Michigan proposal, which preserves riparian rights of reason-

able use (labeled Class A rights) for domestic, power, recreation and
212
fishing uses. Presumably these rights would continue to be administered

by the courts as under existing riparian law. Of these four Class A

purposes of use, it may be that only power uses would have a significant

impact upon conditions of stream flow. But to the extent that these pur-

poses of use do affect the time, rate, or volume of flow, all appropriation








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rights created by or under the proposal are subject to some of the un-

certainty prevailing among riparian rights under riparian law as traditionally

administered.

The existing rights preserved by the other proposals are limited to the

maximum amount of water beneficially used prior to enactment. Consequently,

appropriation rights granted after enactment are not in danger of being up-

set by an expansion of use under riparian rights. But these proposals do

not seem to restrict preserved rights to the existing place or purpose of

use nor to require administrative approval of changes in place or purpose

under these rights,213 and there may possibly be some uncertainty as to
how fully appropriators are to be protected against such changes under

these proposals.

2) Rights to Return Water.

The eastern proposals are almost entirely silent with regard to rights

to the use of return water. A substantially identical definition of "un-

appropriated water" in three of the proposals includes "water which having

been appropriated or used seeps or flows back into a stream, lake or other

surface body of water"21 These provisions might be deemed applicable to

certain disputes, as for instance, to defeat an attempt by the original

appropriator to reuse the water after its reentry into the stream when

challenged by a junior downstream appropriator. But no proposal attempts

to define the rights of the original appropriator or other potential users

of return water before it renters a stream, and the numerous conflicts

that might arise between such persons would apparently be left to the courts

or to future legislation for resolution.

3) Acquisition of Prescriptive Rights.

None of the eastern proposals contains any provision bearing upon the

acquisition of prescriptive rights after enactment. Each proposal, however,


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declares that the procedure for making application to a state agency is to

be the exclusive method for acquiring rights after enactment.215 The

continued existence of the doctrine of prescription, therefore, would be

an unsettled question under these proposals.

4) Inadequate Data on the Amount of Unappropriated Water.

As already stated, a determination of the amount of water available for

appropriation requires adequate data on the total supply of water and on the

amount covered by existing rights. Several proposals specifically direct

the agency to inventory the water resources of the state for use in the

performance of its administrative duties,217 and the adequacy of the data

accumulated will probably depend largely upon the funds made available for

this task.

Records relating to the amount of water already appropriated concern

both preserved rights and appropriation rights acquired after enactment.

With regard to preserved rights, most of the proposals require the agency

to gather evidence on the amount of water lawfully used prior to enactment,

and the agency's preliminary determination of rights preserved because of

such use is filed in court presumably as the basis of a judicial action

culminating in an adjudication decree, following the most common type of

procedure employed in the western states.

A complete description of the scope of each appropriation right granted

after enactment is contained in the permit and later the license issued an

appropriator. As these appropriation rights are to be subject to forfeiture

for nonuse, however, it will be necessary for the agency to maintain up-to-

date records on the amount of water actually put to beneficial use within

the terms of each right. Such records should be easy to keep in those

situations. where the agency is authorized to supervise the distribution

of water.219 In addition, three proposals specifically authorize the








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agency to require annual reports from appropriators,219a and under the other

proposals the agency may be able to establish such a requirement through the

general rule-making power usually granted it.220

B. Problems of Waste.

The exact nature of the problems of waste that might result from enact -

ment of appropriation legislation in the East will depend to a considerable

degree upon the conditions of use and supply obtaining in each state. For

example, geographic and climatic conditions in this part of the country are

not as likely to cause the great evaporation and seepage losses which have

helped create the problem of excessive channel losses in the West. More-

over, while irrigation agriculture has presented the major purpose of use

in the West, it is unlikely that irrigation will ever be more than one of

several important purposes of use in the East, and the character of eastern

problems might be somewhat different for this reason.

Despite significant differences between eastern and western conditions,

however, it is quite reasonable to assume that many problems of waste

similar to those in the West would result from appropriation legislation

in the East. In particular, the problem of wasteful purposes caused by a

freezing of an existing pattern of resource allocation -- perhaps the most

serious problem in western law -- may be especially apt to emerge in the

East, where the promise of even more rapid economic growth than in the

West places ,an added premium on flexibility of resource allocation.221

For this reason, it is instructive to review the degree to which the

eastern proposals, in adopting the administrative appropriation system

of the West, have stressed remedies offered by western law for meeting

problems of waste.

Each of the eastern proposals contemplates the existence of two groups

of rights: existing rights preserved by the legislation, and appropriation








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rights to be acquired after its enactment.222 Unless the total supply of

water is largely covered by the preserved rights, the interest of the state

in the highest beneficial use of its water resources would relate to both

these groups of rights. Because the main concern of most western states

today is with the regulation and reallocation of water covered by existing

rights, the importance of procedures and conditions for the acquisition of

new rights would be materially greater in the East than is now the case in

the West. A survey of remedies incorporated in the eastern proposals should,

therefore, focus first upon waste-prevention measures taken at the time of

granting new rights. Then, in closing, our attention will turn to measures

for dealing with wasteful uses once rights are already in existence.

1) Anticipating Problems of Waste in the Granting of New Rights..

The eastern proposals appear to place little emphasis on waste-prevention

measures in the form of requirements and conditions for the acquisition of

new rights. TUder all proposals appropriation rights would be granted in

perpetuity, although, as will be discussed shortly, appropriation rights

under the Mississippi statute may be modified or terminated at any time.

There are no provisions for withdrawals or appropriations by the state

either to preserve natural conditions of particular value or to give the

state time to plan for the best utilization of appropriated water.3

Moreover, no proposal contemplates the payment of annual fees based upon

the amount of purpose of use,

Applications for new rights under each proposal must be for a reason-

able beneficial use and may be denied if the use would be contrary to the

public interest. But few of the proposals elaborate much upon the concepts

of reasonable beneficial use or of public interest in this regard. The

most specific directions for administrative action are contained in the Wis-

consin proposal, which requires the rejection of applications "likely to


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interfere with the highest beneficial use of water" and which also requires

that the agency "seek to conserve the use of water for all present and future

needs including domestic use, municipal use, irrigation, water power, fish

life, recreation, navigation, industrial use or other beneficial purposes;"2

in addition, the agency is authorized to establish orders of preference in

different areas of the state, and these preferences could be used as standards

for the issuance of new permits.225 The Michigan proposal requires the denial

of applications that would conflict with the public interest in the highest

beneficial use of water, as that goal is very generally stated in the pro-

posal's opening declaration of policy;226 the proposal makes this standard

specifically applicable in the event of competing applications, and the agency

is also authorized to reject applications where there are "assured prospective

uses" that would be more in the public interest.227 The remaining proposals

direct the agency to approve applications for reasonable and beneficial uses

not detrimental to the public interest, but they provide almost no guide for

the performance of this duty.228

The effect of these proposals is to leave the formulation of any policy

regarding the acquisition of new rights entirely to the agency, at least in

the absence of subsequent legislative action. None of the proposals is

related to a particular policy for allocation of the states water resources,

although the procedures and requirements established in these proposals would

provide one means of effectuating policies formulated in the future for use

of any water remaining unappropriated at that time. Where a proposal

authorizes administrative studies of water use and supply, the results of

such studies would probably influence the agency's action in the approval

of new applications. On their face, however, all these proposals are

substantially similar tothe western appropriation codes under which few

applications seem to have been denied on public interest grounds and much


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greater emphasis has been placed on element of priority than on the require-

ment of reasonable beneficial use.

2) Dealing with Waste under Existing Rights.

Once a proposal were enacted, problems of waste under existing rights

would concern both the preserved rights and the appropriation rights granted

after enactment. The requirement of reasonable beneficial use, in its

various manifestations, is the key remedy for meeting these problems, and

each proposal makes at least some provision for its application to existing

uses.

The Mississippi statute, by preserving rights to the extent of lawful

use prior to enactment, presumably intends that these uses meet the test of

reasonableness under the pre-existing riparian law of that state. Both

these preserved rights and appropriation rights acquired after enactment

are said to "remain subject to the principle of beneficial use".22 More-

over, the authority given the agency to modify or terminate any of these

rights at any time could be used as a powerful weapon against the wasteful

use of water.230 For this reason, the effect of this provision -- unknown
to western law -- will be followed with great interest in other eastern

states considering legislation on the subject of water rights. Nothing in

the Mississippi statute suggests how this authority is to be exercised.

Only one other eastern proposal -- that in Wisconsin -- would confer such

extensive power upon the agency for altering the amount of water that may

be used under existing rights.231 But this proposal, like the Mississippi

statute, makes no attempt to establish standards'for the exercise of this

authority, and the language of the proposal does not permit any conclusion

as to how much this power would be employed against wasteful uses.

As for the other proposals,the one in Michigan limits both preserved

rights and appropriation rights to the use of water for reasonable and

beneficial purposes.232 reserved rights uder the proposals in North








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Carolina and South Carolina must be lawful and therefore reasonable under

existing riparian law, though these proposals contain no requirement that

the use of water under these rights continue to be reasonable and bene-

ficial.233 Appropriation rights acquired after enactment under these

latter two proposals, and also under the Arkansas proposal, are declared

to remain subject to the principle of beneficial use.234 In none of these

four proposals, however, is there an indication of the relative emphasis to

be accorded the requirement of continued beneficial use and the element of

priority where strict enforcement of priorities would create problems of

waste. Furthermore, the extent of administrative authority for supervising

uses is not set out in any detail,235 and the possibilities for vigorous

application of the requirement of reasonable beneficial use may be con-

siderably less under these proposals than under the Mississippi statute

and the Wisconsin proposal.

Appropriation rights may be forfeited for nonuse under each of these

proposals. Changes of point of diversion or of place or purpose of use

are allowed with administrative approval and on condition that the rights

of others not be impaired.236 But the opportunity for voluntary changes

to better locations or more important purposes will depend to a considerable

degree upon the extent to which other users will be protected against changed

conditions of supply, and compulsory changes in the interest of a higher

beneficial use and forfeiture for wasteful use are not provided for; more-

over, these proposals include no provisions, such as the grant of condemna-

tion powers, for facilitating changes that might be called for by the pro-

posals' avowed goal of highest beneficial use.237

3) Conclusion.

It is quite likely that an administrative appropriation system of water

rights in the East would create serious problems of waste similar to those


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encountered under this system in the West. Western law contains certain

remedies for meeting these problems, but only a limited use has been made

of these remedies to date and their potential effectiveness against western

problems is still undetermined.

Eastern states interested in the enactment of appropriation legislation

have an excellent opportunity to anticipate these problems and to emphasize

available remedies or develop new ones. In general, however, it does not

appear that this opportunity has been seized upon in the proposals drafted

thus far.

Provisions in the Mississippi statute and the Wisconsin proposal for

the modification or termination of rights could be employed to ensure a

high level of beneficial use, but the scope of these presently unlimited

provisions must be more precisely indicated before their effectiveness --

and their impact upon the certainty of rights -- can be determined. Other

eastern proposals make no more provision for meeting problems of waste than

appears in current western appropriation codes.


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