Title: Some Tentative Conclusions
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Title: Some Tentative Conclusions
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Language: English
Publisher: The Conservation Foundation
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collection - Some Tentative Conclusions
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 39
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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II. SME. TENTATIVE CONCLUSIONS


Introduction. In grappling with the problem of allocating water so as to

maximize the efficient use of resources without simultaneously working serious

injustice, Eastern states need to be wary of uncritically accepting the solutions

of other places or times. Especially should a riparian state like Massachusetts

hesitate before discarding a system which has at least not prevented the attainment

of a high level of development and which has apparently not engendered serious,

unresolved conflicts. Certainly the substitution of a system of prior appropria-

tion for the present system does not seem a panacea blanketing all varieties of

water ills.

Water is an invaluable resource. Any system of legal rules which prevents its

beneficial use or inhibits the development of water resources should be modified.

Starting from these two irrebutable propositions, there has rolled a veritable crus-

ade to replace the riparian system with that of prior appropriation. At least two

primary advantages are usually claimed for such change: encouragement of socially

desirable investments in water-using facilities as a result of increased certainty

of availability of water supply; permitting the absorption into productive outlets

of such waters as are surplus to the need of riparians, and which otherwise liter-

ally go to the sea. Clearly, the proposed change is a most appealing one at first

presentation.

A useful by-product of this movement for reform is the attention it has cent-

ered on water problems in areas which for long have not thought about water in

terms of a scarce resource. The existing information in Massachusetts is inade-

quate as to supplies of water, present demands, future supplies and demands, and

potential conflicts among water users* If this activity results in intensive stud-

ies of present and potential water uses it will at least eliminate same of the

gaps in present knowledge. And by formulating the issues and opening them to

discussion, it may help to avoid the crystallization of water-use dilemmas requir-


---ad









ing expensive remedial measures. Legislative reform often waits on the happening

of a calamity. Forestalling such an emergency, and instituting action in a field

like resource allocation where legislative inertia is strong, can be a genuine

contribution. It does not necessarily follow, however, that any problems Massa-

chusetts may have will be adequately solved by the adoption of a prior appropria-

tion system and the repudiation of the riparian system. Such a sweeping change

must pass a two-pronged test: (1) the riparian system fails to satisfy the public

welfare under contemporary conditions; and (2) the prior appropriation system comes

as close as is possible to satisfying that welfare. Otherwise, the movement must

be regarded as offering at best a stop-gap measure aimed only at symptoms. In

the discussions of the problems furthermore, a careful demarcation must be made

between (1) advantages of a prior appropriation system and (2) advantages of an

administrative system of determining water rights. The blurring of the line be-

tween these two categories has distorted analysis of the question -- inasmuch as

an administrative agency can operate either under a prior appropriation or riparian

system, or a modification of either one.

The Massachusetts Experience with Prior Appropriation. Massachusetts, early

in its history, twice ventured into the area of water rights via legislation. One

of these ventures resulted in the Ordinance of 1641-7 -- unique, or almost unique,

law. It would be interesting and undoubtedly informative to study the results of

that law from the aspect of water utilization: has water in large ponds been used

more and used in ways generally considered more desirable socially in Massachusetts

where use of the water is a public right or in other states where it is treated as

a private right?

The second legislative innovation was the Mill Acts. These, it will be re-

called, established a limited system of prior appropriation. Here, too, a

comparative study could prove profitable.

Since the enactment of the first Massachusetts Mill Act in 1714, many of


- --~~~~~- -- d---- --------- _







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the Western states have enacted prior appropriation statutes. These, in turn,

have come in for recent re-scrutiny: one commentator at least has queried the

efficacy of prior appropriation to promote optimum use of water in the Western
131/
states. And even if the system works in a highly satisfactory manner there,

can one reasonably conclude that it would be satisfactory if adopted in toto in

Massachusetts? The problem of the West was how to subsist and to encourage develop-

ment in the absence of large scale industry and fertile land. Agriculture was

essential; irrigation was essential for agriculture, Irrigation, however, is a

highly consumptive use of water. The problem existed in the first instance because

the West had and still has a very short supply of water. Under these circumstances

(aside from historical and institutional factors), perhaps prior appropriation is

as ideal a system as possible. Lacking these circumstances, it may not be.

To the extent that the wisdom of the past is pertinent to present problems,

the Massachusetts case law here examined offers one guide. In some small measure,

use of water for power engenders conflicts of the sort that frequently attend use

of water for irrigation. In the latter case, abstraction by one user leaves too

little to permit adequate irrigation by a neighbor lower on the stream; in the

former case, the dam of one prevents his neighbor higher on the stream from

utilizing it within the ambit of the backflow from the dam of the lower riparian.

Prior appropriation can and was used to resolve this conflict. But neither the

Mill Act nor any other version of prior appropriation seems to be the best way

of approaching questions of manner of use in contradiction to those of quantum of

total abstraction or diversion. Certainly the Massachusetts courts at least

found it necessary to resort to the riparian doctrine to settle some questions

which arose between conflicting claims of mill privilege owners, as well as those

between mill owners and other types of water users, and this is not attributable

primarily to oversight by the drafters of the Mill Act. Any attempt to rigidly

codify the future would seem equally doomed. Conditions change too rapidly; the


____II__ _~~ _____ ____1~11_ ____~1~
i







-26-


equities of a particular case cannot be foretold forever at the one point in time

when one happens to be legislating.

The Certainty Conducive to Investment. Under either the riparian system of

allocation or that of prior appropriation, consideration must be given not only to

optimum present use, but -- perhaps even more important -- to future development.

If it is determined, for example, that it is desirable to encourage greater use

of water for irrigation, how should this be done? Even here, where it is most

commonly invoked, the substitution of the prior appropriation doctrine is no

panacea. If a substantial investment is required for irrigation, prior appro-

priation does have the advantage of tending to assure a continuing supply. Of

course if investment were made a weighty factor by the courts (or by appropriate

legislation directing such action by the courts) in determining the reasonableness

of a disputed use, some security would thereby be afforded to investors dealing

with a riparian rights state, but still, it must be conceded, not as much as the

certainty of being able to divert a specified number of gallons per minute. But

this element of certainty conjures up a great difficulty: assuming that an irri-

gator can today take a specific amount, either as his appropriation or in the

exercise of his right of reasonable use, should this be the measure of his right

for all time? True, his productivity may be decreased, but the total productivity

of society may be increased if the amount of water he is permitted to take is

decreased. And once granted the appropriation may carry with it the right to

continue indefinitely. Again, use of that land for farming, and hence of the water

for irrigation, may become an uneconomic use, either absolutely or relatively, to

some other use to which the land is capable of being put. This means, then, that

even under a prior appropriation system, licenses to appropriate should be issued,

subject to some type of review to escape undesirable rigidity. And to the extent

this is introduced, the virtue of certainty is concomitantly reduced. Perhaps the

compromise to be worked out is a permit for an initial term of years to allow the







-27-


investment to be fully depreciated, subject to review if its continued use should

be deemed desirable at the expiration of the initial term. Certainly any rigid

definitions of water priorities -- writing into the legislation a fixed order

requiring subsequent legislation if the order prove mistaken (and raising further

constitutional question) -- does not make sense. On the other hand, the riparian-

judicial system can boast of the advantage of flexibility. Should society determine

some day in view of technological advance that use of water by power companies,

for example, is no longer in the interest of the whole, and this is infiltrated

into the judicial attitude, this determination can be made most readily by a

court redefinition of "reasonable" to exclude that use.

The Factor of Waste. The extent to which the riparian system permits or

even encourages the waste of water is another inquiry where more data and analysis

is needed. Since the existence of injury has been deemed a prerequisite to a suit

for damages or injunction, the Massachusetts courts, to some degree, have written

in a requirement of use and thereby avoided blatant misuse of the resource. For

it follows that a riparian who himself is not beneficially using the stream waters

as they flow by cannot object when another riparian is putting that flow and/or

water to use. This acts as a check on a dog-in-the-manger attitude; the superior

rights of location are not to be invoked unless the contiguous water is put to

use.

Similarly, there is not enough information on which to base a judgment as to

the operation of a possible second check, the prescriptive system: by permitting

adverse users to obtain a fixed quantum of rights over and above what would have

been the proper measure under a "reasonable" system of allocation, even the

riparian system penalizes the non-user and rewards the busy bee. Whether there

is much adverse prescription in the built-up state of Massachusetts (especially

in view of dearth of litigation in the matter) and whether people can rely on such

flimsy straws in expending moneys and energies, could also be the focus of an







-28-


investigation. Presumably so haphazard a system as prescriptive rights tends to

be could scarcely provide a sufficient safety-value to the apparent stimulus to

waste of a riparian system. Where the use of water requires no special investment

prescriptive rights may be a check; but no one would make any but the most trivial

investment where 20 years use -- ignoring all other operating facts -- is a pre-

requisite to secure enjoyment.

The Choice of Agency. In addition to determining the substantive rules

governing the allocation of water, it is necessary to determine who can most

efficiently administer those rules -- whichever is the set ultimately selected.

The tendency among proponents of the change to prior appropriation has been to

confuse that issue with the different one of choice of agency to act as umpire

and in some instances as or developer. Many of the advantages attributable to the

prior appropriation system really flow from the nature of administrative agency

determinations as contrasted with judicial determinations. Hence the question

really resolves itself into whether an agency can be injected into a riparian

system and still maintain these advantages; whether it can do so with respect to

an isolated problem such as pollution, or must engulf the entire field of water

rights; finally, whether there are countervailing disadvantages, conceding that in

certain areas -- especially that of promoting development -- society's most useful

tool may lie in such an administrative board.

The Presumption Against Administrative Agencies. All other things being

equal, as the economists like to say, a presumption exists against the introduction

of a new and elaborate administrative system. In view of its attendant complexi-

ties, the burden of proof rests on those advocating such an innovation. Whether

this has been sustained in the case of water is doubtful. From the reported cases

themselves there seem to be few disputes: indeed, but few water cases were

carried to adjudication in the past decade. The spontaneous organization by

individual water users, with judicial umpiring of the occasional controversy,







-29-


seems best fitted to this state of affairs. However, the lack of litigation may

not be a proper index of water troubles due to pressures by larger interests, and

unwillingness and inability of other water users to get into court to test their

rights. And the future water needs may require such an administrative mechanism.

The Market Mechanism and Water Law. In dealing with water law in the con-

text in which it is usually discussed today -- with emphasis on a wholesale

revision of water systems -- there is an understandable emphasis on social con-

trol. Hence, in assaying the relative merits of the two systems, a foreground

consideration must be which is the most effective administrative agency. Yet

even more crucial is the impact of a system of law on the regulate. To some ex-

tent the proponents of the prior appropriation system do calculate this by their

argument couched in terms of fostering investment. But this is of limited ap-

plicability. Important to evaluate is the role of the market mechanism: in both

systems private enterprise could equally be said to "rationalize" the resource

allocation via the price mechanism. In the riparian system, the one representing

the highest beneficial use of the water resource will bid highest for riparian

land; similarly, under a prior appropriation system he would buy out the rights

that accrued to the prior taker. If this price mechanism bears a relationship to

the world of fact, over and above an economist's model, then the injection of an

agency into the allocation picture will distort its operations. This would be a

factor pointing toward the riparian system as that legal system most conducive to

a rational allocation of the water resources of the state. For it is the system

in which the most activity is centered in private hands; the operations of the

private economy become the private water plan and, ultimately, the plan. On the

other hand, if there are frictions in practice (say, holdout prices by riparians)

or if the sources of knowledge are imperfectly available, only correction by

scientifically trained and specialized people can produce a proper water alloca-

tion. If so, this calls for use of administrative agencies as the most effective







-30-


instrumentality of society.

In either system of water law certain demands of a high social value (usually

of a recreational nature) cannot "bid" effectively; a corrective or substitutional

approach for the market may be equally necessary under either system of water law.

This corrective could be supplied either by the courts or an administrative body

under either set of water laws. To insure this allocation some type of planning

by a public agency may be necessary -- but again this does not necessitate a change

in the going water system. Nor does it necessitate employing administrative

boards. For example, water supply for a municipality is another instance where

the consumer cannot compete in the open market. But this use is nearly always

favored by the courts in the guise of being the reasonable use; in this instance,

social policy as adopted by the common law courts cuts through and corrects the

price mechanism as a water allocator.

The Different Methods of Meeting Problems. A critical question -- and one

that easily could spawn a host of Baby Hoover Commissions is the factors a

court takes into account in its determinations of water rights, as opposed to

those which form the natural perspective of an administrative agency. While it

is beyond the scope of this paper to inquire into all the considerations rele-

vant to such a determination, nevertheless certain factors can be isolated for

further study, and how these affect the outcome of water-use conflicts.

First, there are such obvious questions as which body -- the judiciary or

some administrative agency -- can provide the desired degree of certainty and,

at the same time, the desired degree of flexibility. The latter is most fre-

quently referred to as one of the outstanding advantages of the administrative

system. Without in any way wishing to dispute the accuracy of the reference,

one may point out that the attribute is at least not unique to that system. For

example, the courts could and perhaps should introduce as factors bearing on

reasonableness of use which of the claimants is prior in time, the investment each







-31-


made in order to use the water, the relative social utility of the use of each;

perhaps, also, they should discard the watershed limitation on use of water.

Both courts and agencies are capable of evaluating and assigning weight to each

of these factors; so, for that matter, is the legislature.

(a) The Question of Staff; The Adversary Process. There is also, of course,

a difference in the manner these different factors usually arrive at their deter-

minations. This, in turn, affects the type of factors taken into account, and the

weight they carry in the final outcome. The legislature may hold hearings at

which experts and interested groups will be invited to state their views; the

resulting enactment may attempt a detailed regulation which though repealable by

future legislatures tends by virtue of inertia to remain on the statute books

even after conditions have so changed that the law is no longer quite satisfactory.

The agency is very likely to have on its staff scientists and technicians who will

be constantly at the elbow of the administrators of the law guiding new promulga-

tions in the wake of scientific developments and practical and social conditions.

The courts may mold their opinions in accordance with the same criteria as the

agency, but they must ordinarily depend on the adversary system enlightening them

as to the relevant facts and considerations. The adversary process rivets the

court's attention on the parcels of land in dispute.

While there is wide divergency among courts as to the desirability and prac-

ticability of a court adopting its notion of broad social policy as a basis for

decision, by and large in a field like water where the inter-relatedness of the

different users is so patent, the court will be willing to consider all the uses

along the river. Thus, this aspect of the adversary process limitation is only a

theoretic objection. But that aspect of the argument does seem valid which points

out that advocacy by opposing lawyers may not be the best means to acquire infor-

mation as to what social policy makes sense. Even assuming a court's readiness to

go along with the proposition that the immediate litigation before it is not a


~1_~1~_







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closed system but has wide repercussions on users up and down the stream, does it

have the equipment to carry it beyond a hunch or guess as to such wider effects?

As a procedural matter, too, a judge cannot make his decree binding on other

riparians not parties to the suit. Yet their use of the water may be closely

interrelated to the two conflicting uses that are having their day in court. A

corrollary factor of limitation relates to the flexibility of the decree and its

enforcement. The Massachusetts court has made some refined and particular decrees

as to the amount of water several farmers were entitled to appropriate; but, say

in a dispute between 200 farmers and a power company on the Connecticut it would

be difficult (although not insuperable) for the court to frame its decree so that

each farmer should not take more than X gallons whenever the level of water is at

Y point; the problem of supervision of this type of decree (even though framed in

the negative) would be inordinate for a court. Conceivably the protracted super-

vision and need for rescrutiny and revision could fit into a master system, but

only with difficulty.

(b) The Interrelatedness of River Users. In the field of water resources the

most persuasive argument in behalf of an administrative agency lies in the inter-

relatedness of the waters of a stream. A holistic view of what in the physical

sense is one unit -- the watershed -- seems to be the only logical method of deal-

ing with all the competing uses of the stream. (The same may be true re the re-

lation of stream to ground and surface waters, but the lack of present scientific

knowledge as to the relation may indicate that an entrusting of these functions

to an agency is premature). Planning a river to accommodate all the interests in

question, and to satisfy as many claims as possible, is a coordinative, inte-

grative process that requires survey and plan by water experts viewing water prob-

lems as a whole. Decisions about water uses need to be made in the light of a

systematic study of the resource situation with special attention to the water

development potential that may exist in the state. Only in this fashion could a


I







-33-


comprehensive plan be promulgated for these water rights and uses to prevent waste

and increase yield. This seems to call for a planning agency.

One slight qualification: this argument for use of an agency becomes shadowy

when you come to a river like the Connecticut. Massachusetts does not contain

the whole river. Without smae type of interstate compact or regional ordering,

"the planning of the whole river basin becomes impossible. But sufficient the

troubles of each day: while same decision-maker operating over the entire river

would be the optimum desired, an approach to the river as a whole, even within

the limits of the one state of Massachusetts, would contribute a forward step.

And perhaps that of itself, and as a possible precedent for wider area coopera-

tion, is a sufficient vindication. But to the extent experts can testify that a

wholistic view is distorted unless it comprehends the entire whole, and the New

England states continue to each go its own way as respects the Connecticut River,

then an agency is no better than the court system. Similarly, if the creative

planning function of the agency be deleted, owing to the absence of a water prob-

lem, or the inability or lack of desire to recognize that such problem exists,

then the water question should be left where it is -- in the laps of the courts.

(c) The Role of the Master. In this context, an important consideration

is whether the Massachusetts present system does not, potentially at least,

combine the advantages of agency administration with those of judicial adminis-

tration. Generally, water cases were referred to a master and came before the

court only on exceptions to the master's report. The practice of referring suits

to special masters was not and is not now regulated by statute in the state of

Massachusetts, but the power of a court of equity to refer a case to a special

master for the determination of the facts has never been doubted. A case is re-

ferred to a master by a rule of reference which usually authorizes the special

master to "hear the parties, find the facts and report his findings to the court,

together with such questions of law as may arise in the course of his investi-







-34-


nation." Whether a case will be referred to a master does not depend upon the

consent of the parties, but lies in the discretion of the court of equity, as

does the nature of the rule of reference.

If there is not already specialization among masters in a state there seems

to be no reason why there could not be in the future. This permits the judiciary

to become expert by process of continuous intervention. Nor is there any reason

why the master handling water cases could not have a permanent staff of hydrolo-

gists, economists, and physical planners, thereby tapping the latest scientific

knowledge and techniques concerning water uses.

The use of special masters, however, cannot be put forward as the cure-all

method for reaching decisions in water rights controversies. The application of

law to the facts found by the special master is not within the scope of his report

to the trial court. Rulings of law are in no way binding upon the trial court;

they are merely advisory, and the weight which the trial judge attaches to them

as an aid in arriving at his own decision is entirely a matter for him to de-

termine. It is proper, on the other hand, for the special master to report rul-

ings of law involved inthe resolutions of issues of mixed fact and law, e.g.,

the reasonableness of the consumption of water by a party involved in a legal

dispute. A further limitation upon the function of the special master is that he

is restricted to a finding of facts and is not empowered to decide the nature of

the relief to be given upon the facts -- a function within the exclusive province

of the trial court. But the tendency of the courts would be to uphold his

determinations.

The current situation with respect to water masters in Massachusetts is some-

what obscured. Mr. Leo Reed, clerk of the Massachusetts Superior Court and auth-

ority on equity procedure in that state, recalls no instances of recent date

where special masters have been employed in water rights cases, although such

officers have been active in nuisance cases. However, this may be attributable


i_


__






-35-


to the absence of such controversies recently.

(d) The Prospective Operation of the Agency. Nevertheless, such a system

of masters would suffer from an obvious deficiency: a master is bound by the

going situation. But so, too, is an administrative agency. Yet through a system

of advanced planning the future, in so far as it can be foreseen through the haze

of present uncertainties and variables, can be taken into account by an agency

more effectively than any court system, even attached to a master system. Planning

for future water needs, as well as the implementation of such plans, is hardly

a function for courts.

This underlies another thread in the complex fabric that must be woven. An

intelligent decision can be made that decreasing supply of water in light of

predictable increased demand calls for future development and planning by public

funds and agencies to supplement or replace the market mechanism. How would this

affect resolutions of current water-use disputes? Would they not also need to be

handed over to such an agency to secure the proper time relationships of water

uses? This seems to call for expanded activities by an agency. Aside from the

rarely invoked declaratory judgment, the courts are restricted to actions (1)

raised by the initiative of parties and (2) after the event, that is, after the

collision of interests. A preventative and future role on its own initiative

seems a prerequisite for public initiative, assuming always that private action

has failed to privately rationalize under its own prediction of water supplies

and needs. Again, this factor does not go to choice between the riparian or

appropriation system, but to the kind of agency a state selects for administering

its water program.

(e) The Need to Compensate, Retroactivity, and the Judiciary. On the other

hand, general standards in so novel and far-reaching a program may indicate that

the program could be best "administered" by an independent judiciary. Further,

against any defect that may be an unavoidable concomitant of the adversary system


__________~__________







-36-


should be balanced the fact that an agency appropriation to an individual user,

unless properly qualified, becomes a right which cannot thereafter be taken from

the individual without his receiving compensation, whereas a use adjudicated

reasonable, and hence permissible, today, may in the light of the changed cir-

cumstances of tomorrow be adjudicated unreasonable and hence impermissible --

without the individual having to be compensated for his loss.

Yet this flexibility of a riparian-judicial system is not without its own

problems. Preserving existing water rights is not justified solely on the ground

of preventing a taking of private property; what is at stake is the preservation

of expectations, so individuals can operate in the knowledge that certain gains

will be respected, or, if thwarted, that compensation of some sort will be made.

In fact, this creates that certainty inducive of investment -- the virtue attrib-

uted to a prior appropriation system. A judicial determination that a particu-

lar use is no longer reasonable under all the circumstances does in fact result in

the taking away of private property without compensation. Since, however, the

weighing of a greater or lesser socially desirable use normally is delegated to

courts, the traditional dealers in matters of drawing a balance between the

individual and society in property rights, the confidence of investors may still

be preserved. Thus a judicial shuffling and reshuffling of the hierarchy of pre-

ferred use permits new developments in water allocations. The law of reasonable

use -- in view of fast-moving events -- is deliberately and appropriately left

vague. Entrusting to the courts the overriding right of society to change the

order of rights as situations evolve and change, does not hamper incentive too

stringently. Hence -- and this is an undoubted strongpoint of a Judicial system

(though it would operate in a more restricted fashion in a prior appropriation

system than a riparian one) -- the regularizing of property rights in water could

be preserved for the most part, along with the flexibility of permitting the

highest economic use of the water to prevail as the most "reasonable". In this


~







-37-


sphere lies the courts' expertise. This underlies the public confidence in the

fairness of the court's Judgment -- and a willingness to acquiesce in its de-

termination. As the traditional agency for cutting this knot, it can decide which

expectations are proper, and should be protected, as contrasted with those that

are unreasonable.

The situation in Massachusetts has one unique aspect. This may be a distorting

factor, but it serves to underline an inarticulated premise in this water law

conflict. Here in Massachusetts the only foreseeable problem seems to be in the

Connecticut Valley. In the rest of the state, agriculture is such that its po-

tential competitive use of water is negligible. But in that valley, the farmers,

increasingly, interested in the improved yields possible from the use of supple-

mental irrigation, may soon clash with the power plants, satisfied with and seek-

ing to retain the status quo as to the use of the Connecticut River waters. The

present appropriations on the state's most important river are such that in the

summer months it is fully appropriated. Therefore, to introduce the system en-

visioned by the Michigan bill would be a meaningless act -- there is simply no

extra water to be allocated during the summer months when both groups most vitally

concerned -- power companies and supplemental irrigators -- need most to utilize it.

In other words, after the prior appropriation freezing point of present use of

water, there is no additional water leftin the Connecticut for a 'water bank' for

reallocation and redistribution by an agency. Since the results obtained by such

legislation would be so sparse, pressures can be presumed to persist. Suppose,

then, the argument prevails that the existing pattern of water rights prevents

maximum development and allocation of water in Massachusetts. This would necessi-

tate use of eminent domain powers to acquire some existing water rights and re-

distribute them. If the supplemental irrigators are willing to espouse use of

this exercise of state force via condemnation, the issue over the adoption of a

prior appropriation system becomes clarified: it is not a case of more efficient







-38-


allocation of scarce water; the systems are neutral in that sense; but, rather,

that of using the general taxpayers' funds for the use of a specified group whose

ultimate economic product (in this case, increased farm products due to irri-

gation) does not warrant the direct expenditure involved in paying for these water

rights.

The Role of a Comprehensive Plan Choice of an agency to study the situation

and prepare a comprehensive development plan of the water resources of Massachusetts

does not preclude either the existence of a riparian system, or of a continued

judicial testing both of private disputes and of proposals of the government agency

as it is translated from the planning phase to the stage of execution where it has

bite on private developers. A central, published general plan will provide a

framework for future developers, and criteria on which courts can base their oc-

casional and rare decisions. Indeed, the testing of logic and the unfolding of

experience may lead either indirectly (or directly via legislative adoption and

mandate to the judiciary) to establishing standards by which the court can better

gauge what is a "reasonable" use. The plan also will permit, where direct inter-

vention by an agency into private water rights is deemed necessary, basing points

for intelligent judicial review, for it provides a background against which to

test the proposal of government.

Conclusion. Much of the assumed physical rigidity as to impossibility of sat-

isfying water demands can be eliminated by changes in technology and distribution;

or, perhaps, by alternatives of groundwater supplies, or the piping in of water

from other watersheds. Similarly, what is impressive in even a brief survey of

the water field is the diversity, flexibility, and number of governmental and

private organization capable of meeting predetermined needs. To forecl

maneouvaribility at this early stage of first scrutiny into Massachusetts water

problems by a blanket adoption of any one system seems singularly unproductive.

To confuse the virtues of the prior appropriation system that do exist with those
To confuse the virtues of the prior appropriation system that do exist with those







-39-


of administrative determinations does not advance clarity of thought. The need

for exploration of alternatives, improvision and invention of social organization

in this field is challenging; that the ability to meet it is also present seems

u44en -- all leading to incredulity at the views of those who would foreclose

this richness by aan id immediate) swallowing whole of the appropriation

system.

The fact of the matter is that adequate information is woefully lacking as to

the nature and amount of supply of water, as to whether there is waste, and if so,

the extent thereof. The first inquiry in fact, both logically and practically,

should be focused on what are the water problems of Massachusetts. This inquiry

must obviously concern itself with such matters as the value placed by society on

a type of ent prise, the supply of water, the demand for it, the distribution of

the available supply to the different purposes and the deviation, if any, from

optimum. Obviously the aim of a water law system is to remove obstacles thereto

and to help organize and structure the exist tClne igtions, so as to maximize

the welfare of society at large. The fundamental objection to any imiiAte

chg gan _p ration system is the absence of analysis as to whether waste

of water, assuming there is some, occurs because (1) the supply in the humid areas

of the country exceeds the demand, or because (2) legal restricfitonsa~nd fric-
tions prevent the satisfaction of some demand.


~ I




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