Title: A Contribution on Hydrology vs. Water Allocation in the Eastern United States by Harold E. Thomas, U.S. Geological Survey
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Permanent Link: http://ufdc.ufl.edu/WL00003189/00001
 Material Information
Title: A Contribution on Hydrology vs. Water Allocation in the Eastern United States by Harold E. Thomas, U.S. Geological Survey
Physical Description: Book
Language: English
Publisher: The Conservation Foundation
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - A Contribution on Hydrology vs. Water Allocation in the Eastern United States by Harold E. Thomas, U.S. Geological Survey
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 42
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003189
Volume ID: VID00001
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Holding Location: Levin College of Law, University of Florida
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Full Text

A Contribution On


by Harold R. Thomas
U. S. Geological Survey

to the

Symposium on the Law of Water Allocation in the Eastern United States

Cosmo Club, Washington, D. C., October 4-6, 1956

under the sponsorship of


~ ^I


by Harold E. Thomas*1

The title of this paper was chosen in the hope that it might be at

least slightly provocative. It gives an implication of conflict between.

hydrology -- the science treating of water -- and the systems or methods

of allocating water among users, as developed in statutes, court decisions,

compacts, etc. Such conflicts are possible. Many instances can be cited

in which the basis of water allocation or regulation has not been in accord

with sound scientific principles. Even today the hydrologist and the

specialist in water law, working separately, may reach divergent conclusions

-as eto te bet methada --iefregging a ag resources,

It should be possible to resolve these differences, however, by abora-

tion of those who are expert in hydrology and those who are expert in

human rights.

With respect to hydrology, I do not qualify as an authority on the

Eastern United States. My experience has been entirely in the 17 Western

States, and in the East I am an expert only to the extent that distance

lends an aura of authority. However, many Western States have long

wrestled with problems of water allocation, and I may therefore justify

this paper on the basis that the West can serve as a laboratory or pilot

study for many of the problems in water allocation that are now developing

in Eastern States.

!/Staff geologist, U. S. Geological Surrey, Salt Lake City, Utah.

Most of the people who have migrated to the United States in the past

three centuries have come from humid regions, chiefly in Europe. These

people, accustomed in their homelands to an economy based on relative

abundance of water, found the eastern half of the United States to be quite

similar: precipitation during the growing season is ordinarily sufficient

for agriculture, and a network of perennial streams carries surplus water

from the continent to the oceans. However, the western half of the country

was recognized early in the days of settlement as a new and different

environment insofar as water is concerned. By contrast with the East, the

precipitation on the arable lands of the West is generally inadequate for

cultivated crops. Some parts of the 17 Western States receive enough

precipitation for grasses and grains, and these areas have been adapted to

dry farming, especially of wheat. But most of the arable lands of the

West receive entirely too little precipitation for crops, and agriculture

is successful only if water is available for irrigation.

The East and West have developed two contrasting types of doctrines

concerning water rights. In the East, until recently, there has been

little need for statutes regulating the use of water, and court decisions

have established the common-law doctrines as pertaining to both surface

and ground water. Under these doctrines the water is appurtenant to the

land; it is therefore privately owned and available for use by the landowner,

and this right is not lost by nonuse. By contrast, many Western States have

made a statutory declaration of public ownership of the available water

supplies. Water can be appropriated by individuals for beneficial use and

the general rule is "first in time is first in right," although some States

modify this by designating preferences as to types of use. Rights are

forfeited after a specified period of nonuse, and they are not dependent

upon landownership.

These contrasting doctrines of water allocation have a sound hydrologic

basis, for they reflect a corresponding contrast in climate. As pointed out

by Thornthwaite (1948), if the precipitation is just equal to the potential

evapotranspiration -- the rate at which the sun can pull water to the

atmosphere -- the climate is neither moist nor dry. Such are the average

conditions along a line that cuts the country into two approximately

equal halves -- extending from the Texas Gulf coast where the average annual

precipitation is 35 inches through eastern Kansas with 30 inches, north-

eastern Nebraska with 25 inches, and northwestern Minnesota with 20 inches.

The 31 States east of this line constitute a humid region where precipita-

tion as a rule is greater than evapotranspiration, and the surplus is

carried to the ocean in perennial streams. The 17 Western States include

the arid and semiarid regions of the country, where the average precipita-

tion is less than the potential evapotranspiration, and where there is

therefore a perennial water deficiency. Within these 17 Western States,

however, there are small areas of perennial water surplus -- chiefly the

north Pacific coast and the high mountain ranges -- and these surpluses

are of exceeding importance wherever they can be used to alleviate the

water deficiencies of the arid lowlands.

Throughout the nation there are all gradations in average climatic

conditions, from extreme wetness to extreme dryness. And at any locality

the climate will vary seasonally or annually from these conditions as the

rate of precipitation rises above or falls below the average. These

climatic variations are a controlling factor in our water-supply picture,

whether we are considering soil moisture, ground water, or surface water.

The average water supply dependent upon precipitation is believed to

remain practically constant, because in existing records there is no clear

evidence of long-term progressive trends, either upward or downward.

However, our water demand is progressively increasing, because of

increasing population and increasing requirements per capital. With

reference to demand, therefore, although not in absolute quantity, the

nation's water supplies are diminishing, and this is creating shortages in

an increasing number of areas.

Obviously any doctrine of allocation developed under conditions of

relative abundance of water needs some modification if it is to be applied

to conditions of restricted supplies. From the concept that a landowner

is entitled to unrestricted use of the water appurtenant to his land there

may be several modifications: that the use must be reasonable, that it

must be beneficial, that it must be correlative with the area of land-

holdings, that it must be licensed, or that the right to use water may be

lost by prescription. And many States in humid regions are studying closely

the doctrine developed under conditions of water deficiency -- the appro-

priation doctrine -- as a possible means of allocating water where the

supplies are inadequate to meet all demands.

General Objectives of Legislation on water Allocation

A brief resume is sufficient to show us the major problems involved

in getting the maximum benefit from our water resources. First, there are

the arid regions where precipitation is habitually insufficient for cul-

tivated crops, and where therefore irrigation is essential for agriculture;

such regions are habitable to the extent that surface water and ground water

can suuply the needs not only of agriculture but of industry and public

supply, and these waters characteristically come from some place other than

the place of use, where precipitation is more abundant. Second, there

are the regions where the annual precipitation is ordinarily adequate for

agriculture, but the distribution is such that there are deficiencies in

some seasons; these deficiencies may be overcome by the use of waters

that are in surplus in other seasons. Third, there are regions where

precipitation in a normal year is adequate and well distributed, but in

wet years produces flood surpluses and in drought years is so little that

there are serious water deficiencies; here also there is need to utilize

the surpluses of some times to alleviate the deficiencies of other times.

Fourth, there are localities of concentrated water demand, notably by

cities and industries, where water deficiency has been artificially created.

Obviously this variety of problems requires a corresponding variety in

solutions, if maximum beneficial use of water resources is to be attained.

These solutions may involve transportation of water from areas of normal

surplus to areas of deficiency, artificial increase of storage in soil or

ground-water reservoirs or surface reservoirs to hold water from times of

surplus for use in times of deficiency, reduction of damage from floods and

droughts, and other steps to overcome the effect of variability in natural

water supply. The solution of many of these problems is accomplished

through legislation which either sets up funds for activities by govern-

mental agencies, or which enables private citizens or groups to undertake

various activities.

Here we are concerned primarily with legislation tending to regulate

the development and allocate the use of water by individual citizens or

groups, and to provide security for the investments involved in such

development. As pointed out subsequently, water development and use may

modify the natural circulation of water known as the hydrologic cycle,



and one objective of legislation is to encourage the modifications t

will be most advantageous or least detrimental to society. In general,

bhwever, the major objectives of water-rights legislation are protective.

Legislation should include protection of water rights that have been

established, but it should also protect the opportunity to develop and use

water to the maximum degree that can be sustained. And some legislation

may also be necessary to protect the resource from undue exploitation.

What Water Should be Subject to Regulation?

A casual observer might well conclude that we as a nation do not favor

regulation and allocation of water until the necessity is clearly established

by evidence that available supplies are insufficient to meet the needs.

Strong arguments have been advanced against proposals for water legislation

in several States on the principle that it would hamper development, and

that since there are still large undeveloped resources of water in many

parts of the country, restrictive legislation would result in economic loss.

Particularly in the Eastern States, with their relative abundance of water

and surpluses that flow unused to the sea each year, it appears that most

water shortages could be overcome by holding back some of those surpluses

for use in times and places of need. Thus the solution to the problem

would seem to be to encourage development rather than to restrict it,

and a logical first question is whether legislation is really necessary.

The common-law doctrines pertaining to water in most of the East

apparently grant perpetual security to the landowner because they permit

him to use water from streams, springs, or wells on his land when and if

he wants it. Unfortunately, when water is withdrawn from streams or wells

for use by an individual, it ceases to be available for others who have


the same rights in common. Thus the apparent security of all landowners

creates insecurity in any investment (whether of public or private funds)

that may be necessary for development and actual use of the water, because

some landowners may decide at any time to exercise their prerogatives,

and attempt to develop and use the same water. If a continuing supply is

to be assured to those who have actually used water and become dependent

upon it, we have a problem for legislation, requiring some limitation on

the unexercised rights to the same source of supply. (The question of the

status of these unexercised rights -- whether they are vested property

rights, of which a man shall not be deprived without due process of law --

is a legal problem beyond my scope.)

The inadequacy of present doctrines to cope with problems arising

from our increasing demand for water has been noted by several study

groups, As an example, the Water Policy Committee of South Carolina

(1954, p. 30) has this to say of the riparian doctrine pertaining to

surface water:

It is outmoded in that it recognizes only "domestic uses"
of 150 years ago. It is inequitable both to riparian owners and to
the people of South Carolina as a whole. As each riparian owner
who in the past may not have used his water takes even his small
share, he reduces the amount for all riparian owners in common.
Thus, a riparian owner who early has invested in equipment to use
water sees his investment reduced in value as his equipment operates
at less and less of its capacity. As an owner in common he has a
valuable right; as an individual owner he has a right that decreases
in value as it is used in common. the state as a whole also loses.
Under present laws there is little that can be done to prevent a
needless amount of our water wealth flowing unused into the ocean.
Under modern conditions the riparian doctrine imposes a second
injustice on the people of South Carolina, Under strict inter-
pretation the riparian doctrine gives use of water only to those
owning land bordering the watercourse. Others in the state can use
the water only by grant of the riparian owner, by legislative grant
or by prescription -- adverse use for the time required by law to
coarert the use into a right. The people of South Carolina as a
whole are restricted intheir enjoyment of an important resource
even though the state holds final title to it.


_ _

If it is granted that some legislation is essential, to provide an

environment favorable for effective utilization of the water resources, the

/next question arises as to what water should be subject to allocation.

Usually this question is answered by pointing to the water that is or has

been in short supply, and therefore causes difficulties. And usually

there is a tendency to legislate on the basis of a traditional legal

classification that is scientifically unsound. This classification

commonly includes the following "classes" of water": 1) surface water in

watercourses (rivers, creeks, natural stream in general); 2) ground water

in "defined underground streams" (ordinarily limited to the most obvious

conditions because the burden of proof is usually placed on the person

that claims the existence of this class of water -- for example, the

water in caverns or in gravels and sands underlying stream channels);

3) "percolating" water (ground water that has not been studied by hydrol-

ogists, so that its quantity, and rate and direction of movement, are

unknown; even after this ignorance is superseded by understanding, the

class title may be retained because of legal precedent); 4) "diffused

surface waters" (water on the land surface but not in watercourses or

lakes); sometimes also 5) springs (natural discharge points for ground

water, and therefore derived from class 2 or class 3).

In defense of this legal system of classification, inherited by us

from past generations, it may be argued that water, by whatever name it

is called, will still have the same quality and usefulness; also, that

the legal classes summarized above are not much more artificial than the

hydrologist's distinction between surface water and ground water, which is

~1_1~~ ___

a now-you-see-it now-you-don't distinction that can refer to the same

water molecule at different times. A classification can be made to suit

man's conference. He is likely to become confounded, however, if he

assumes a separation that does not exist in nature, and legislates on

the basis of that false assumption.

The legal classes of water, as listed above, are now known not to

be separate and distinct, but to be interrelated and interdependent. The

minimum flow of water in watercourses comes chiefflyfromgroundwter

whether from "defined underground streams" or "percolating" water. The

maximum flow of water in watercourses also comes in part from ground

water, but is likely to include a large proportion of water that was

temporarily "diffused surface water." "Diffused surface waters" may

include water from precipitation which has not completed the process of

infiltrating into the ground or which cannot enter the ground because of

impermeability of the surface layer, or because the ground is temporarily

full; overland flows which may either seep into the ground elsewhere or

enter a watercourse or lake or pond; the discharge from ground-water

reservoirs at springs or seeps; water in sloughs or escaped floodwaters in

"watercourses" that have been too narrowly limited in their definition; and

marshes and bogs formed by ground water where the water table rises to the

surface. A Westerner who was obliged to use the term could apply it also

to the water in the playas of closed basins, whether in wet playas which

are discharging ground water, or in dry playas that receive runoff from

occasional intense storms. Even the snow that accumulates in the mountains

each winter might be designated "diffused surface water," for it is not in

watercourses, nor is it soil moisture or "percolating" water or water in a

"defined underground stream, '..and it is water on the surface.





The hydrologist also classifies water for his convenience -- for

instance, as atmospheric vapor, soil moisture, ground water, and surface

water -- but he recognizes these as merely phases in the continuing cir-

culation of water that he calls the hydrologic cycle. The interrelation

and interdependence of the several phases of the hydrologic cycle are

demonstrated in studies of the processes of precipitation, infiltration,

deep percolation, seepage, and evapotranspiration, by which water moves

om one phase to another. The principle of the hydrologic cycle, involving

renewability of the fresh-water supplies of the continent, is fundamental

to any right to sustained or perennial use of water.

At present it is beyond the province of legislatures, and beyond the

powers of mankind, to regulate all the water of the hydrologic cycle, which

includes all rainfall and soil moisture as well as ground water and surface

water. It is more logical, when there is agitation for allocation of

water from sources that are in short supply, to consider legislation that

will solve the immediate problem. Such bows to expediency have been

numerous in the history of water legislation in the West.

Rather generally throughout the Western States the waters first used

were from streams, and disputes over surface water were already raging

when ground-water development was practically nonexistent. Statutory

regulation and allocation of surface water thus preceded by many years any

statutes pertaining to ground water, and these two "classes" of water are

still administered and allocated separately in many States. This has

already caused difficulties, because the oldest rights are generally in

the base flow of streams -- the flow is sustained largely by ground water --

and failure to recognize this interrelation has created problems in water

, rights. Correlation of water rights in such situations is not too difficult

if the pbla phSy f is the sae for surface water and ground water,

as for example in Nevada and Utah were "all" waters have been declared to

belong to the public, but the correlation of rights may defy solution if

the basic philosophies pertaining to the two "classes" of water are

different, as pointed out by Hutchins (1956):

~ Correlation of rights is not feasible in a State which,
for example, recognizes exclusive appropriation rights in surface
streams, and rights of absolute ownership of percolating waters.
Even if such percolating waters are conclusively proved to be
physically tributary to a surface stream, the stream appropriator
obviously can have no legal claim on them if they are held to be
the absolute property of the overlying owner."

It may be concluded that, even with piecemeal legislation that

regulates and allocates separately the surface water, or ground water, or

some other named "class" of water, it is possible at some later date to

integrate and correlate water rights, provided the State has been consitent

in its philosophy concerning the waters. Such consistency is possible in

States that declare all water to belong to the public, or, atih- polite

extreme, in States that consider all water to be appurtenant to the land

and therefore subject to private ownership. The hydrologic cycle provides

another possible breakpoint between private and public ownership: Move-

ment of water as precipitation and as sioat~ui-r!irsciiefly in a vertical

plane, so tat the landowner might beJ r.vated.. nersMi4tof all the water

that falls on his land and is retained in his soil by natural or artificial

means; on the other hand, the principal movement of ground water and surface

water is lateral and therefore across property lines, so that a declaration

by the State of public ownership would have support in hydrology.



As an alternative, legislation might be framed to provide for

regulation and allocation of all water within an int egted hydrologic

unit. Such legislation would be of the enabling type, to permit organi-

zation of all the water users (including potential water users) within the

area encompassed by the unit, and would need to establish the guiding

principles and delegate the authority ral -f or pa on of

that organization. Adequate hydrologic information would be required for

the establishment of the boundaries of such hydrologic units, because

ground-water boundaries do not necessarily coincide with drainage-basin

boundaries. ITexas recognizes this principle to some extent in its

statutes concerning underground water conservation districts, which must

include an area "cotef us sW-t an underground water reservoir or

sia tbr-foitrreo f. H '""-- r---

legislation Proposed in Some Eastern States

Because of rapidly increasing water use in recent years, particularly

for "supplemental" irrigation, several Eastern States are faced with the

need for some system of water allocation, and legislation has been proposed

in some States. For example, in Misissippi and South Carolina it is

proposed to dedicate the water in watercourses, lakes, and other natural

bodies to public use, and to make available for appropriation the water

above the "average minimum flow" of streams. In Michigan and Arkansas

it is proposed that surface water be made available for use by licenses

issued on the basis of the State's police power. Generally the proposed

regulatory measures apply only to water in streams and lakes, and exempt

other"-classes" of watr;-they-give's^ci!rcitio n toeingohts

that are being used or will be used in a short time, provide for the

recording of rights, and put the burden of enforcing the law in the hands

of an administrator or boards


------------- I

The necessity for allocation of surface water has been indicated by

shortages in recent years, particularly in the streamflow during extended

rainless periods when supplemental irrigation is desirable. All four States

mentioned above have accepted in the past, or at least have not repudiated,

the common-law doctrines which grant to each landowner the right to use

water appurtenant to his land when and if he chooses. Any system of alloca-

tion based on use of water must take away the landowner's right to use water

whenever he chooses. Because of this restriction of rights that had been

assumed in landownership, any attempt to regulate water supplies is likely

to encounter resistance. Legislation for allocation only of surface water

may therefore be a necessary boyw t tL native might

be no control of any water supply.

However, legislation that regu a-tes y>3y .,, v..r can create

problems for the future. Consider that the urgency behind the proposed

legislation in several Eastern 'Statesa hnn the dle i streamlow

during rainless periods in recent years. The streamflow in such periods

is derived chiefly from ground water, and the State cannot therefore

guaranteed Vater to surface-water apLnropr!f-r ImP :n ot n the power to

control the development and use of water fromthe contributing ground-water

reservoirs. If the ground water is considered to be avrtea nt t the

land and therefore privately owned, the surface-water appropriators will

have no recourse if ground-water developmnt deletes the flow of the


The proposed legislation for Arkansas, Michigan, and South Carolina

would grant to the landowner absolute ownership of "diffused surface waters"

on his property. Of all the various "diffused surface waters," those that

would be most likely to affect streamflow are the waters gathered on or"-

flowing over the surface after precipitation. Such waters contribute

materially to storm runoff, and especially to floods landowners within

any drainage basin, therefore, by holding these "diffused" waters on their

land could reduce the streamflow materially; and if all overland flow

could ted the water in watercourses would consist largely of

the discharge from ground-water reservoirs. Thus if the landowners have

absolute ownership of both the ground water and diffused surface water on

their lands, a surface-water appropriator cannot be assured of a secure

water right. Texas may be cited as a case in point, for the water in

streams is subject to appropriation, whereas ground water is appurtenant

to the land and therefore subject to private ownership. Because of

increasing pumping from wells, the discharge of many large springs in the

San Antonio region has been reduced materially (Petitt, 1956), with

consequent reduction of flow in streams fed by those springs. Also it is

reported (Freese, 1954) that soil-conservation practices have reduced the

flow of many streams in west Texas. At a water conference last September

at Texas A & M College it was conceded that, with continuing reduction

of base flow and reduction of storm runoff from minor storms, some surface-

water appropriators would eventually have rights to nothing but the runoff

during major floods. Large reservoirs would be needed to store this flood

runoff, and they would be used only infrequently.

A major criticism of the proposed legislation in Arkansas, Michigan,

Misissippi, and South Carolina, is that it attempts to set up not only a

separate system of allocation for surface a a te

philosophy of water rights which is incongruous because of the inter-

relation of the surface water with water in other phases of the hydrologic


cycle. But even without this inconsistency in philosophy, the States are

likely to find an increasing number of conflicts among water users that

cannot be resolved by the proposed laws. Among the bases for conflict

might be mentioned the effects of pumping from wells upon other wells

and upon springs, as well as upon streams, lakes, and some bodies of

"diffused surface water;" the effects of stream diversions upon supplies

from wells and springs; and the effects of using "diffused surface water"

upon users of water from streams, lakes, wells, and other users of "dif-

fused surface water."

There is a possibility that the courts in some States might, in view

of the common law, hold that some ground waters would be subject to regula-

tion under the proposed statutese.,, t,,ground.nMater i" eUunderground

streams" is generally considered a part of the water in watercourses, and in

some States springs tributary to a watercourse have been declared to be a

part of the watercourse. Thus the common law recognizes the interrelations

of the hydrologic cycle to some extent -- an extent that varies from State

to State.
Problems for Legislation

In drafting legislation concerning water rights, the States have many

problems in common because of the similarity of objectives in the legis-

lation. But any given problem may have several solutions, and the water

legislation accordingly may vary from State to State. The doctrine of

appropriation has been developed chiefly in the arid Western States; since

there is not enough water for all, the available supplies are held in common,

and this has been accomplished in most Western States by a constitutional

or statutory declaration of public ownership. The laws proposed for


South Carolina and Mississippi similarly declare the public ownership of

water occurring in "any watercourse, lake or other natural water body."

In Michigan it is proposed that the State, on the basis of its police

power, control the use of surface water by issuing licenses for water use

on a basis similar to the appropriation system in the Western States. In

Arkansas also it is proposed that the State control the development and use

of surface water on the basis of appropriation, subject to the rights of

riparian owners to water for domestic use.

Protection of Developed Rights

In the legislation proposed for Sputh Carolina and Mississippi, a

vested right is defined as "the right to continue the use of water having

been actually applied to beneficial use...", and nothing in the proposed

law is to "deprive any person of any vested right in the use of water."

The Michigan proposal also would preserve "vested rights" which are stated

to include (class A) riparian rights to reasonable use of water for domestic,

power, recreation, and fishing needs in connection with the riparian land,

and (class B) rights to water actually put to beneficial use, with priority

dating from the time of first use. Although the legislation proposed in

Arkansas makes several references to rights vested before the effective date

of the law, and to claimants of such rights, I could find no specific

statement as to the protection of these rights, except in the event of a

general determination of the "relative rights of, all claimants" to use of

water from a source of supply, which may be undertaken upon the petition

of one or more users from that source.



Record of Rights

For effective regulation of water use on the basis of appropriation,

the State administrator requires a record of all water rights, including

especially the quantity of water used beneficially, the date of first use,

and the date of cessation of use. To meet this need, insofar as water

developments subsequent to passage of the legislation are concerned, the

legislative proposals in all four States include details of the procedures

to be followed in establishment of water rights.

Michigan proposes also that administrative areas be established, within

which statements of "claims of rights to the use of water vested upon the

effective date of this Act" shall be filed with the Water Resources Com-

mission within a stated period. Unless shown to be fraudulent, these

claims would constitute prima facie evidence of the development and bene-

ficial use of water prior to enactment of the law. In both Mississippi

and South Carolina it is proposed that the administrative board make such

observations and measurements as will enable it to determine and establish

the rights of all water users who are making beneficial use of water on the

effective date of the Act, but the water users are not expected to state

their claim as to rights.

Utah, when it passed its ground-water law in 1935, placed the prime

responsibility for preparing the record of water use prior to that year

upon the water user, rather than upon the State administrator. The water

user was required to submit an affidavit (or claim) upon a form prepared

by the State Engineer to include all data essential to the determination

of the right. These claims were checked by the State Engineer against


__ __ _~_

other data he had obtained, and significant discrepancies were brought to

the attention of the claimant. The claims were then filed as the official

record of the right, together with supporting or modifying data obtained by

the State Engineer.

The value to any State of a file of sworn statements by all claimants

of vested rights will increase as time goes on, and as properties change title.

Property owners are less likely to contest claims made by former owners of

their property than to contest determinations made by the State. If claims

are protested by holders of other rights, the dispute is solely between

water users, and the State administrator may serve in the role of arbitrator

rather than as a defendant. In Utah there have been very few challenges of

the data recorded on claims to water rights, especially in comparison with

the total number of records of wells, springs, and stream diversions.

Administrator's Authority and Responsibility

The "Boards of Water Commissioners" proposed for the States of Miss-

issippi and South Carolina "have authority to permit the appropriation of

water of any stream only in excess of the established average minimum flow,"

with allowable exceptions for domestic and municipal users, and for non-

consumptive water users. The Michigan Water Resources Commission would

be given the authority and charged with the responsibility of enforcing the

specific provisions of Michigants proposed law; and the proposed law for

Arkansas confers similar powers upon the Arkansas Water Control Commission.

Mississippi and South Carolina contemplate that administrative orders or

decisions may be appealed to the courts, and Arkansas would depend upon

the courts for adjudication of water rights.


These powers are similar to those conferred by Western States upon

the State official responsible for regulation of water resources, although

they are not so broad as those in some States. For example, Kansas

authorizes its Chief Engineer to "control, conserve, regulate and allot

the water resources of the State for the benefit and beneficial uses of

all its inhabitants in accordance with the rights of priority of


Policy Guides

Regardless of the extent of the authority conferred upon the State

administrator, his job will be more clearly defined, and his orders and

decisions more soundly based, if there is a statutory declaration of

general policies as to water rights and regulation of development.

Many States have statutes which enunciate certain policies with

respect to water rights, and the courts also have considered many problems,

for which their decisions may serve, especially within the area of juris-

diction of the court, as guides to policy in the future. But many problems

have developed rather suddenly with the recent rapid increase in use of

water, and existing laws provide no guidance, except perhaps by rather

tenuous interpretation. The following discussion is limited to two

problems that have arisen in several places: the question of preferential

rights in certain types of use, and rights in water that has been used


Preferential use vs. priority of use.- The doctrine of appropriation

("first in time is first in right") does not discriminate among types of

use, except for the proviso that the use must be for some beneficial


purpose. The proposed legislation in Michigan, Arkansas, Msississippi, and

South Carolina declares priority of beneficial use to be the determining

factor in water rights, and thus conforms to the appropriation system*

Generally, however, people regard some uses of water as more beneficial to

society than others, and many States have listed the types of beneficial

use in order of preference. Such preferences are suggested in Arkansas'

proposal to exempt domestic users from the provisions of the water-

regulation act, and the proviso that fish and wildlife values are to be

considered in determining the best public interest in applications to ap-

propriate water. In the other States the water boards or commissions would

be empowered to approve applications for uses which best serve the public

interest or general welfare.

Both preferential use and priority of use can be determining factors

in rights, but to avoid confusion the law should state the conditions

under which each is the controlling factor. A combination of the two

factors has been worked out in some Western States: established appropria-

tive rights are on the basis of priority regardless of the type of use; but

the State administrator may choose between competing applications for new

development on the basis of preferred use; or, as full development of a

region is approached, he may accept additional applications for preferred

uses, but reject applications for uses of low order.

"Used" water.- Water used nonconsumptively includes the return flow

or qeepage from irrigation, the sewage from homes and cities, the cooling

or process water from industry, and the waste water from various uses.

In the most common uses of water more than half may be unconsumed and is

available for reuse, although the quality is generally poorer because of

the first use.


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___ ~I _II

After these unconsumed waters leave the property of the first user,

particularly if they are discharged into streams or underground, they

again become available for use by others. Or perhaps the waters discharged

are unsuitable for use because of dissolved chemicals or sediment or organic

material. Questions are likely to arise as to the privileges as well as

the responsibilities of the first user with respect to this unconsumed

water. When may he contract directly for its delivery to other users, and

when does it become public water available for appropriation through

established state procedures? After the used water is appropriated, what

are the obligations of the prior user to continue the nonconsumptive use

and to discharge it where it is accessible to the subsequent user? What

are his obligations as to purification or treatment?

Many States have laws concerning pollution that apply to waters non-

consumptively used, but, since the prime concern is protection of public

or common supplies, the statutes may not answer all the questions of one

who has used water to dispose of. As reuse of water increases, it is in-

evitable that questions will be raised as to rights. An industry, for

instance, having a right to constant intake of which it discharges 90 percent

that has long been available for other users, by recycling perhaps could

quadruple its plant operations with no increase in intake -- but the

quantity of "used" water available for others would be reduced appreciably.

A city may have the alternatives of discharging treated sewage effluent

of acceptable quality into public waters, or of contracting to deliver

that water to a specific user for industrial or agricultural purposes.


In the legislation proposed in South Carolina and Mississippi, water

that has been appropriated and used nonconsumptively is recognized as

being available for appropriation again after it returns to a stream or

other surface body of water, but the obligations of the first appropriator

to the second appropriator are not stated. The question has been considered

in a very recent case in Utah (East Bench Irr. Co. v. Deseret Irrig. Co);

the decision in that case was that upstream irrigators were obligated to

continue to provide the return flow from irrigation in quantities equivalent

to those to which rights had been developed by downstream appropriators.

Essential Hydrologic Data

For effective regulation and control of the water resources a State

administrator requires a knowledge of the natural circulation of water and

quantities involved, and of the modifications that result from man's

development and use of water -- in other words, a continuing inventory

of the quantities and qualities of water moving through the several

phases of the hydrologic cycle. The legislation proposed in the four

States mentioned above provides for gathering such data as may be helpful

in water administration, by the State administrator and cooperating Federal


The essential hydrologic data for effective regulation of water devel-

opment and use can be summarized very briefly: quantitative data as to the

natural storage and movement of water over a long enough period to show

the extremes and the long-term mean; also, data as to the uses of water and

the effects of those uses. These requirements can add up to an immense

amount of basic data and study, as indicated by considering the data that

are needed merely for regulation of a reservoir,


It is fundamental in reservoir operation for beneficial use of water

that the reservoir be filled in times of surplus, and drawn down to meet

the needs for beneficial use during periods of low inflow. Under these

conditions, it may be possible to provide a firm supply of water perennial-

ly to many water users. Considerable hydrologic data are prrerequisite to

the effective operation of a reservoir, surface or underground, for maximum

benefit to the public. As an example, for lake Mead on the Colorado River,

there has been an accurate survey of the reservoir to show the capacity,

both as to usable storage (which can be discharged at Hoover Dam) and dead

storage (which cannot be economically drawn out of the reservoir); lake

levels are recorded continuously, and capacity tables have been computed

to show the quantity of water in storage at any lake level; there are also

continuing measurements of inflow, including the Colorado River, Virgin

River, and precipitation; and measurements of outflow, including evapora-

tion from the lake surface and discharge at Hoover Dam. With many years

of record on all these items, it is possible to forecast supplies and program

future operations with reasonable accuracy.

For determining how much water can be perennially yielded by a ground-

water reservoir, whether to streams, springs, or wells, an administrator

would need similar information: capacity of the reservoir, which might

include "dead storage" below the practical pumping lift a quantity

that might change as the practical pumping lift changes with economic

conditions; seasonal changes in storage, as shown by water levels in index

wells; long-term average recharge to the reservoir, and cyclic deviations

from that-'verage; and the discharge from that reservoir by wells, evapo-

transpiration, and effluent seepage to streams* The administration of



water rights under any system of allocation on the basis of use is expensive,

because it requires the collection of a large volume of basic data, and

analysis and interpretation by expert hydrologists.


To sum up, the 31 Eastern States form an area in which, as a rule,

precipitation exceeds the return of water to the atmosphere, and the

surplus runs off in stream to the borders of the continent. These States

in the past have ggioact~ed _the com~on-law doctrine that a teris

appurtenant to the land and therefore ~ iatel.naa, subject to use

by the landowner whenever he chooses. Although relative abundance of water

/ has been characteristic of the region in the past, the increasing use in

recent years hase-reatsd shortages of water at some places and at some times.

Because of the overall water surplus of the region it would appear that the

remedy for local deficiencies would be to utilize the surpluses from some

other place, and the remedy for temonrar n anannt a--- Elencr ies would be

to utilize the surpluses from some other time. Such remedies require
11 ""------- ~~~"~1""
storage facilities, and the money with which to build them.

Although the common-law doctrines appear to grant perpetual security

in water rights to each landowner, whether he uses the water or not, there

is insecurity in any investment for developing, storing, or using water,

because there is no assurance that other landowners will not some day

undertake to develop and use the same water. Protection of rights in water

actually being used requires some limitation on the unexercised rights to

water from the same source of supply.



Several States are now endeavoring tc set up systems of water rights

and allocations based upon priority of beneficial use of water, some by

declaring the water to be public property, others on the basis of police

power over the State's resources, Arkansas, Michigan, Mississippi, and

South Carolina may be cited as examples of States that currently are pre-

paring to regulate and allocate their surface waters. This appears to be

a logical step, because practi a erplu in each State

are carried off in its rivers, and because the streams have been depleted

by increasing diversions in recent years; however, it is only a first step

in water regulation, because of the interrelations of the hydrologic cycle.

Surface water cannot be regulated effectively if there is no control over

large-scale ground-water development, particularly if water users, finding

surface water supplies unavailable to them, turn to wells for their

f unplies.

For effective regulation and allocation, the legislation should provide

a clear definition of water rights; broad authority and responsibility, for

the State adm.ni.nta gr, so that he can render decisions in the great

variety of hydrologic conditions that are to be found in every State; and

a statement of broad policies in accordance with which he shall exercise

his powers. Also essential is an adequate program of collection of basic

data and hydrologic analysis as a sis for re~lationgn C.ae use. Even

though the control as now proposed in several States applies only to sur-

face water, the basic hydrologic data should encompass water in all phases

of tbhehbydrologic cyJ~le so that the effects of all natural and develop-

mental factors can be ascertained.


1_ ~1_____1_1________________

The allocation of surface water on the basis of beneficial use may

give sufficient assurance in water rights to encourage investments in

development of facilities for the storage that is sorely needed to

eliminate temporary water de ncies such as have occurred in recent

years. If not, additional legislation may be desirable to enable and
^ "t^^^ ___ ,i ii ---iiiiiin__ _______
encourage organization of water-service corporations or districts to serve

all the water nee deJ-4 Pat'^ bmialircz W&Ui4 r ngioJ _C^" bOff^ to

the service provided by other utilities.

References Cited

Freese, S. W., 1954, General effect of soil conservation work on
streamflow in West Texas: Am. Soc. Civil Engineers, Texas
Section, fall meeting, Houston, mimeo. rept., 30 p.

Butchins, W. A., 1956, Legal aspects of ground water problems:
Pacific Southwest Inter-Agency Committee, minutes of 56-1
meeting, Attachment B, 9 p.

Petitt, B. M., 1956, Water resources of the San Antonio region,
Texas: U. S. Geol. Survey open-file report; to be published
by Texas Board of Water Engineers.

South Carolina Water Policy Committee, 1954; a new water policy for
South Carolina: Report to General Assembly, 47 p.

Thornthwaite, C. W., 1948, A rational approach to classification of
climate: Geog. Rev., v. 38, p. 55-94.


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