Title: A Model Water Code With Commentary
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Title: A Model Water Code With Commentary
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Abstract: Richard Hamann's Collection - A Model Water Code With Commentary - (Box 26)
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Full Text















A

MODEL WATER CODE













MODEL WATER CODE

WITH COMMENTARY






FRANK E. MALONEY
Professor of Law and Former Dean
Holland Law Center, University of Florida

RICHARD C. AUSNESS
Associate Professor of Law
Holland Law Center, University of Florida

J. SCOTT MORRIS
Associate Professor of Law
Law Center, Southern Methodist University

with the assistance of
ROGER D. SCHWENKE








Gainesville
UNIVERSITY OF FLORIDA PRESS
1972











University of Florida
Water Resources Research Center
Publication No. 8



The preparation of this book has been supported by the
Office of Water Resources Research, United States Depart-
ment of the Interior, as authorized under the Water Re-
sources Research Act of 1964, Public Law 88-379.












Library of Congress Cataloging in Publication Data
Maloney, Frank Edward.
A model water code, with commentary.
Includes bibliographical references.
1. Water-Laws and legislation-United States.
I. Ausness, Richard C., 1945- joint author.
II. Morris, Joe Scott, 1940- joint author.
III. Title.
KF5569.M3 346'.73'0469102632 74-137852
ISBN 0-8130-0319-9


COPYRIGHT 1972 BY THE
BOARD OF TRUSTEES
OF THE
INTERNAL IMPROVEMENT TRUST FUND


PRINTED IN FLORIDA













Preface


As a nation, the United States is in the early stages of a water crisis.
Although the problem is more acute in some areas of the country
than others, the population explosion, accompanied by great techno-
logical advances in industry and agriculture, has resulted in pro-
gressively increasing demands on an essentially limited resource. In
addition to the requirements of industry, the seasonal needs of agri-
culture to provide water for crops and livestock at times of lowest
streamflow and least natural replenishment are putting increased
demands on eastern as well as western water supplies.
At the same time, as the demand for water for consumptive uses
has been burgeoning, the interest of ecologists and recreational users
in maintaining streamflows and surface and ground water levels has
assumed greater importance in the minds of the public and the state
legislatures. Concern over the adequacy of existing laws in the face
of present and emerging water resources problems is leading many
states to consider new methods of dealing with these problems.
In the East, the common law riparian system of water law has
come under criticism for its restriction on the use of stream water to
riparian owners and its requirement that the water be used only on
riparian land. Many critics feel that better use frequently may be made
at other places by riparian or nonriparian owners. A major criticism
of the system concerns the element of uncertainty associated with
the reasonable use of water for nondomestic purposes. Because the
reasonableness of each use is determined by the needs of other ri-
parians, unforeseen conditions may arise when others commence or
enlarge uses despite long nonuse of their rights. A further uncertainty
exists in those states where a riparian neither making nor intending
to make use of water can enjoin an existing use as unreasonable with
regard to his right.
Another criticism of the system relates to the lack of administrative
controls. In many jurisdictions the extent of a riparian's right of
reasonable use can be determined only by litigation. The critics main-
tain that this uncertainty results in needless loss when water use
patterns of established industries are upset by later competing uses.








PREFACE


Perhaps of greater concern is the water unused or devoted to less
valuable uses when industries fearful of such losses refuse to locate
in the area. Recognizing their lack of expertise and the inefficiency
of a case-by-case approach, the courts have been reluctant to become
involved. Also, the numerous courts are structurally not as capable of
uniformity in the application of the law as a single, centralized agency.
A final disadvantage of the common law riparian system is the
failure to deal adequately with the problems of ground water and to
recognize its hydrologic interrelationship with surface water, both
diffused and contained in lakes and watercourses.
The prior appropriation system which developed in the western
United States also has its deficiencies. This system had its inception
in the needs of the early gold miners for large quantities of water to
carry on their operations. The water was at first "appropriated,"
sometimes at gunpoint; later the developing law in the West granted
judicial recognition to these appropriations. Under this doctrine, a
riparian or other owner can appropriate the right to use as much
water as he can successfully divert and beneficially employ, as long
as his appropriation is prior to that of others; his right, on a "first
come, first served" basis, may extend, in an extreme case, to the
complete appropriation of the available supply.
One of the principal advantages claimed for the appropriation sys-
tem is that users of water are more certain of their rights under it
than under the riparian system, since the appropriation doctrine in-
cludes establishment of priorities for use of water in time of shortage.
As a result, it is argued, the appropriation system removes the inse-
curity involved in the riparian system and tends to protect and en-
courage investments in the development and use of water resources.
But evidence indicates that this illusion of certainty is not borne out
in the operation of the system in the West and that often the individual
water user is no more certain of his water rights than a similar user
under the riparian system.
It is further claimed that the appropriative system leads to the most
beneficial use of water by placing primary emphasis on encouraging
the sound development, wise use, conservation, and protection of
water. But the western experience indicates that, in many cases, the
effect of prior appropriation may be to waste water that otherwise
could be put to beneficial use. To satisfy a senior appropriator at the
mouth of the stream, junior upstream appropriators may have to let
several times the amount of the appropriation pass by them to allow
for channel losses. Moreover, once an appropriator has begun using
a certain amount of water, he will frequently continue to draw that








PREFACE


amount even though it may be considerably more than he really
needs, since failure to do so may result in loss of his appropriative
right to the excess.
A final criticism of the appropriation system is its tendency to
freeze the initial pattern of water allocation. In a number of western
states, the appropriation of entire stream supplies for irrigation has
prevented industrial development that could produce far more wealth
for the state per unit of water than does the highly consumptive use
of water for irrigation.
Realizing that, because of these defects, neither the riparian nor
the appropriation system in pure form is likely to work, the draftsmen
of the Model Water Code have attempted to provide a model for the
development of a comprehensive regulatory program in eastern states.
This program is designed with three purposes: to take into account
the hydrologic interrelationship of all types of water resources in the
state; to provide greater certainty than is possible under a court-
administered reasonable use approach; yet to retain sufficient flexibil-
ity to make possible realistic long-range plans for the conservation
and wise use of water resources and the elimination of waste. This
last goal is to be accomplished through administrative regulation
utilizing the best parts of the riparian and appropriation systems.
Since the Model Water Code is constructed in large part on a ri-
parian base, its primary influence may come in eastern jurisdictions.
But some of its provisions, particularly those dealing with planning,
water quality control, and general administration, may be of equal
interest in western states.
The work consists of six chapters of text and commentary. Chap-
ter 1 contains the formulation of a state water plan and the estab-
lishment of a two-tiered state and local administrative structure. It
provides for a state board to exercise a coordinating and planning
function while actual administration at the local level is delegated
to water management districts established along hydrologic lines.
The concern of chapter 2 is consumptive uses of water. These uses
are regulated by means of a permit system modeled roughly after that
of Iowa. The permit system is intended for use primarily in the East
as a statutory modification of the common law riparian system. Permit
rights are limited to a term of years, subject to renewal, and the per-
mit system is used as a means of implementing the provisions of the
state water use plan. Provision is made for competing applications
and special powers of regulation in times of water shortage.
Chapter 3 is devoted largely to the construction and maintenance
of wells, the mechanics of ground water use permits having been








PREFACE


included in chapter 2. In addition, it provides for regulation of the
well drilling industry.
Chapter 4 is parallel to chapter 3, providing for the regulation of
dams, impoundments, and other structures to control surface water.
Inventory provisions are designed to give a water management dis-
trict knowledge of its surface water resources as a basis for control
over works affecting it so as to be able to provide for efficient use
and conservation as well as to protect public health and welfare.
Chapter 5 is directed toward the problem of water quality. It pro-
vides for a water quality plan, including the promulgation of water
quality standards and construction and discharge permits. It is the
intent of the draftsmen, insofar as practicable, to prevent pollution
from occurring in the first instance, rather than merely to require
remedial action. The authors relied heavily on the 1965 Suggested
State Act, drafted by the Department of Health, Education, and Wel-
fare and later adopted by the Department of the Interior, and the
1971 Tennessee Water Quality Act, drafted under the supervision
of Professor Maloney.
Chapter 6, an optional chapter, provides for control over weather
modification activities. The Model Water Code can stand as a unit
without this chapter, but it is one of the most original parts of the
code. It is almost solely the work of Roger D. Schwenke, now a prac-
ticing attorney in Tampa, Florida.
A few words about the format of the book: In the first part of the
book, the text of the code is set out in its entirety, without commen-
tary, to make it possible for the reader to consider the code as a
whole, or to refer back quickly to sections cited in other parts of
the book, and the second part consists of a detailed commentary on
each section of the code. For the convenience of the reader, the indi-
vidual sections of the code are presented again, set in bold-face type,
with each section or subsection followed by commentary. In addition,
introductory commentary of a general nature begins each chapter.
The approach of the authors of this code has been along pragmatic,
problem-solving lines. They have attempted to draft the "strongest"
provisions possible. Comprehensive coverage has been sought. They
hope that this proposal will be of assistance to all jurisdictions facing
the necessity of improved regulation to maximize the beneficial use
of their water resources in the best interests of all of their citizens.
A substantial portion of chapters 1-4 of the Model Water Code
were enacted into law by the Florida Legislature as the Water Re-
sources Act of 1972, Fla. Laws 72-299.







PREFACE


During the five years in which this book was in preparation, many
law students assisted in the research and editing processes. In
particular, the authors wish to acknowledge the valuable assistance
of Jacob Varn. Special recognition is also due to Robert V. Cates
and Bud Clarke for their work during the early stages of the writing.
William Earl and Charles Robbins did an excellent job of preparing
the manuscript for publication. David Crow, Patricia Johnson, James
McKenzie, and Don Wilcox deserve credit for their conscientious and
helpful work on proofreading and indexing. And, finally, full respon-
sibility for the chapter on weather modification must be given to
Roger D. Schwenke.
A number of individuals reviewed portions of the text and provided
many valuable suggestions. Among these were Dr. Robert Greenman,
Professor of Agricultural Economics, University of Florida, and Mr.
Robert Grafton, District Counsel, Central and Southern Florida Flood
Control District.
The authors wish to thank the various law reviews for permission
to reprint excerpts from the following articles:
Maloney and Ausness, Water Quality Control: A Modern Approach
to State Regulation, 35 ALBANY L. REV. 28 (1970).
Maloney and Ausness, A Modern Proposal for State Regulation of
Consumptive Uses of Water, 22 HASTINGS L. J. 523 (1971).
Maloney and Ausness, Long-Range Planning under a Comprehensive
State Water Code, 73 W. VA. L. REV. 209 (1971).
In addition to the financial support received through the Office of
Water Resources Research, Department of the Interior, the authors
gratefully acknowledge a special grant from the Florida Department
of Natural Resources to assist in the publication of this model code.

FRANK E. MALONEY
RICHARD C. AUSNESS
J. SCOTT MORRIS














Summary of Contents


Part I The Model Water Code . 1


Part II Commentary . . .. 67

Chapter 1 Administrative Structure and Operation 69
Chapter 2 Regulation of Consumptive Uses . 156
Chapter 3 Construction, Operation, and Regulation of
Water Wells . .. 196
Chapter 4 Construction, Operation, and Regulation of
Surface Water Works . .. 220
Chapter 5 Protection of Water Quality . .. 238
Chapter 6 Weather Modification Operations . 282


Indexes . .. . 351
Table of Cases . . 353
Index . . 357















Table of Contents





Chapter 1 Administrative Structure and Operation

Section Pages
1.01 Model Water Code . ... 3, 81
1.02 Declaration of Policy .. ... . 3, 81
1.03 Definitions ...... ..... 4, 86
1.04 Scope ... ...... .... 5, 90
1.05 State Board . . .. 5, 92
1.06 General Powers and Duties of the State Board 7, 96
1.07 State Water Use Plan .. ... . 9, 103
1.08 State Water Plan.. . . 11, 110
1.09 Adoption of Regulations by the State Board 11, 110
1.10 Enforcement Proceedings before the State Board 12, 113
1.11 Judicial Review of Regulations and Orders of
the State Board . . .. 13, 115
1.12 Appropriation of Funds to Water Management
Districts . 14, 118
1.13 Annual User-Surveillance Fee-Fee Scale-
Collection . ... .14, 120
1.14 Water Resources Development Account . 14, 121
1.15 Water Management Districts: Boundaries . 15, 123
1.16 Governing Board . ... .. 15, 123
1.17 General Powers and Duties of the Governing Board 16, 129
1.18 Adoption of Regulations by the Governing Board 17, 138
1.19 Application and Notice . .. 18, 140
1.20 Citizen Complaints . .. 19, 141
1.21 Proceedings before the Governing Board . 19, 143
1.22 Administrative Review . .. 21, 146
1.23 Acquisition of Real Property . . 21, 147
1.24 Salt Water Barrier Line . . 22, 152
1.25 Penalties: Common Law Remedies . 22, 154
1.26 Severability . . .. 23, 155










TABLE OF CONTENTS


Chapter 2 Regulation of Consumptive Uses


Section
2.01 Permits Required .
2.02 Conditions for a Permit .
2.03 Existing Uses . .
2.04 Application for a Permit .
2.05 Competing Applications .
2.06 Duration of Permits . .
2.07 Modification and Renewal of Permit Terms
2.08 Revocation of Permits .
2.09 Declaration of Water Shortage .


Pages
. 23, 177
. 23, 179
. 24, 182
. 24, 185
. 25, 186
. 25, 189
S. 26, 190
. 26, 191
. 26, 192


Chapter 3 Construction, Operation, and Regulation
of Water Wells


3.01
3.02
3.03
3.04


Definitions . .
Powers and Duties of the Governing Board
Registration of All Existing Wells .
Registration of Well Drillers and Pump Installation
Cr


o raUlll ors .U B . .
3.05 Issuance of Certificates and Bonds ...
3.06 Supervision of Well Construction and the Installation
of Pumps and Pumping Equipment . .
3.07 Marking of Vehicles and Equipment . .
3.08 Grounds for Refusal, Suspension, or Revocation of
Certificates . .
3.09 Proceedings to Refuse, Suspend, or Revoke
Certificates . .
3.10 Permit for Well Construction . .
3.11 Permit for Installation of Pumps and Pumping
Equipment . . .
3.12 Notice of Rejection, Suspension, or Revocation
of Permit . .
3.13 Well Completion Report . . .
3.14 Well Construction Standards and Pump Installation
Standards . .
3.15 Well Construction Advisory Board . .
3.16 Artificial Recharge . . .
3.17 Abandonment of Wells . . .


28, 199
29, 202
29, 203

30, 204
30, 205

31,206
31,207

31,207

32,208
32, 209

33,211

34,212
34,213

35,214
36,216
37,218
38,219








TABLE OF CONTENTS


Section
3.18 Drainage Wells .
3.19 Exemptions and Limitations


Chapter 4 Construction, Operation, and Regulation
of Surface Water Works


Definitions . .
Exemptions .
Headgates, Valves, and Measuring Devices
Permits for Construction or Alterations
Permits for Maintenance or Operation
Completion Report. .
Inspections . .
Abandonment .
Revocation and Modification of Permits
Abatement .
Remedial Measures. .
Emergency Measures .
Immunity from Liability .
Applicability to Existing Works .


Chapter 5 Protection of Water Quality


5.01 Definitions . .
5.02 Exception of Atmospheric Moisture .
5.03 Additional Powers and Duties of the State Board .
5.04 Water Quality Plan . . .
5.05 Water Quality Standards . .
5.06 Additional Powers and Duties of the Governing
Board . . .
5.07 Permits for New Outlets, Disposal Systems, and
Treatment Works . . .
5.08 Discharge Permits . . .
5.09 Pollution of Underground Waters: Permits .
5.10 Inspections . .
5.11 Fees . . .


5.12
5.13


Administrative Enforcement .
Summary Abatement .


45,248
46,252
46,252
47,256
48,260

49,265

50,268
S50,269
S52,273
52,274
S53,275
. 53,275
S53,277


Pages
38, 219
38, 219


4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
4.09
4.10
4.11
4.12
4.13
4.14


. 39,221
. 39,223
40,225
40,226
42,230
. 42,231
. 42,231
. 43,233
. 43, 234
. 43, 235
. 44,236
. 44, 236
. 45,237
. 45,237








TABLE OF CONTENTS


Section
5.14 Injunctions .
5.15 Civil Penalties .
5.16 Local Jurisdiction: Conflicts


Chapter 6 Weather Modification Operations


6.01 Definitions . . .
6.02 Weather Modification Division: Selection of
Director . . .
6.03 Weather Modification: Powers and Duties of the
State Board .
6.04 Promotion of Research and Experimental Activities
Relating to Weather Modification . .
6.05 License and Permit Required for Weather
Modification Activities . . .
6.06 Exemptions from License and Permit Requirements
6.07 Weather Modification Licenses ..
6.08 Weather Modification Permits . .
6.09 Suspension or Revocation of Licenses and Permits
6.10 Notice of Intention . . .
6.11 Publication or Broadcasting of Notice of Intention;
Filing of Proof of Publication or Broadcast .
6.12 Records and Reports of Licensees . .
6.13 Evaluation Statements . . .
6.14 Annual Evaluation Reports . .
6.15 Administrative Procedure Waiver . .
6.16 Liability . ..
6.17 Extraordinary Weather Modification Operations
6.18 Acceptance of Gifts, Grants, and Appropriations:
Weather Modification Fund .


Pages
54, 279
54, 280
55,280


55, 299

55,304

56,306

56,315


60, 336
S 61, 338
S 62, 340
S 62, 340
62,341
S 62,342
63,345

S 66,349















A
MODEL WATER CODE












Chapter 1


1.01 Model Water Code
This act shall be known and cited as the Model Water Code.

1.02 Declaration of Policy
(1) Recognizing that the waters of the state are the property of
the state and are held in public trust for the benefit of its citizens, it is
declared that the people of the state as beneficiaries of this trust have
a right to have the waters protected for their use.
(2) There is urgent need for an accelerated program of compre-
hensive water resources planning to meet the rising water requirements
of a growing population and expanding economy. The state water
plan, with such future amendments, supplements, and additions as
may be necessary, is accepted as the guide for developing and imple-
menting this policy.
(3) The Model Water Code shall be liberally interpreted to obtain
maximum beneficial use of the waters of the state for such purposes
as domestic uses, irrigation, power development, mining, and indus-
trial uses. However, adequate provision shall be made for the protec-
tion and procreation of fish and wildlife, the maintenance of proper
ecological balance and scenic beauty, and the preservation and en-
hancement of waters of the state for navigation, public recreation,
municipal uses, and public water supply; such objectives are declared
to be in the public interest.
(4) The Model Water Code shall be liberally interpreted to protect
and improve the quality of waters of the state and to provide that no
substance be discharged into such waters without first receiving the
necessary treatment or other corrective action. The people of the
state have a substantial interest in the prevention, abatement, and
control of both new and existing water pollution, and the maintenance
of high standards of water quality. The people of the state recognize
the need for the state water resources board to cooperate with agencies
of other states and the federal government in carrying out these
objectives.
(5) The public interest, health, safety, and welfare require that








A MODEL WATER CODE


scientific research and experimentation in the field of artificial weather
modification and scientific efforts to develop, increase, and regulate
natural precipitation be encouraged. A program for licensing, regu-
lation, and control of interference by artificial means with the compo-
sition, behavior, or dynamics of the atmosphere must be established in
order to develop, conserve, and protect the natural resources of the
state and to safeguard life and property.

1.03 Definitions
When appearing in this code or in any rule or regulation adopted
pursuant thereto, the following words shall mean:
(1) State Board-The state water resources board.
(2) Water management district-Any flood control or water man-
agement district operating under the authority of this code.
(3) Governing board-The governing board of a water manage-
ment district.
(4) Reasonable-beneficial use-The use of water in such a quan-
tity as is necessary for economic and efficient utilization, for a purpose
and in a manner which is both reasonable and consistent with the
public interest.
(5) Person-Any and all persons, natural or artificial, including
any individual, firm, association, organization, partnership, business
trust, corporation, company, the United States of America, the state,
and all political subdivisions, districts, municipalities, and public agen-
cies thereof.
(6) Domestic use-Any use of water for individual personal needs
or for household purposes such as drinking, bathing, heating, cooking,
or sanitation.
(7) Nonregulated use-Any use of water which is exempted from
regulation by the provisions of this code.
(8) Water or waters of the state-Any and all water on or beneath
the surface of the ground or in the atmosphere, including natural or
artificial watercourses, lakes, ponds, or diffused surface water and
water percolating, standing, or flowing beneath the surface of the
ground, as well as all coastal waters within the jurisdiction of the state.
(9) Ground water-Water beneath the surface of the ground,
whether or not flowing through known and definite channels.
(10) Surface water-Both contained surface water-that is, water
upon the surface of the earth in bounds created naturally or artificially
including, but not limited to, streams, other watercourses, lakes, reser-
voirs, and coastal waters subject to state jurisdiction-and diffused









CHAPTER 1


surface water-that is, water occurring upon the surface of the ground
other than in contained waterbodies. Water from natural springs shall
be classified as surface water when it exits from the spring onto the
earth's surface.
(11) Stream-Any river, creek, slough, or natural watercourse in
which water usually flows in a defined bed or channel. It is not essential
that the flowing be uniform or uninterrupted. The fact that some part
of the bed or channel shall have been dredged or improved does not
prevent the watercourse from being a stream.
(12) Other watercourse-Any canal, ditch, or other artificial water-
course in which water usually flows in a defined bed or channel. It
is not essential that the flowing be uniform or uninterrupted.
(13) Coastal waters-Waters of the (Atlantic Ocean) (Pacific
Ocean) (Gulf of Mexico) within the jurisdiction of the state.
(14) Impoundment-Any lake, reservoir, pond, or other contain-
ment of surface water occupying a bed or depression in the earth's
surface and having a discernible shoreline.
1.04 Scope
(1) All waters of the state are subject to regulation under the
provisions of this code unless specifically exempted.
(2) No state or local government agency, except the governing
board of a water management district, may enforce any statute, regu-
lation, or order affecting waters of the state controlled under the pro-
visions of this code, whether enacted or promulgated before or after
the effective date of this code, without the written permission of the
state board.
(3) No state or local government agency or other person having
the power of eminent domain or condemnation under the laws of this
state, except the governing board of a water management district, may
exercise that power with respect to condemning property if the con-
demnation will materially affect water resources in the state, without
the written permission of the state board.
1.05 State Board
(1) There is hereby created the State Water Resources Board
which shall be composed of five (5) full-time members appointed by
the governor subject to confirmation by the senate at the next regular
session of the legislature. Refusal or failure of the senate to confirm
an appointment shall create a vacancy in the office to which the ap-
pointment was made.
(2) Each member shall be a resident of the state. One member








A MODEL WATER CODE


shall be an attorney who has practiced law in the state for at least
five (5) years prior to his appointment; one member shall be a hydrol-
ogist or a professional engineer with experience in water management
or conservation; one member shall be an experienced farmer or
rancher; and the other two members shall be chosen from the public at
large based upon their general education, business qualifications, and
experience with problems relating to water resources.
(3) Each member shall serve for a term of five (5) years and
shall be eligible for reappointment for only one additional term except
that
(a) the terms of the members first appointed shall expire, as
designated by the governor, one at the end of one year, one at the
end of two years, one at the end of three years, one at the end of four
years, and one at the end of five years, and
(b) any member appointed to fill a vacancy occurring prior to
the expiration of the term for which his predecessor was appointed
shall be appointed for the remainder of that term.
(4) The member of the initial state board who is appointed for a
five-year term shall serve as chairman for the first year. Thereafter,
members of the state board shall elect annually one of their number
as chairman. In the event of the absence or illness of the chairman,
the senior member of the state board shall act as temporary chairman.
(5) Each member of the state board shall be compensated at a
rate not more than per annum. In addition, each mem-
ber shall be reimbursed for traveling and other necessary expenses
incurred in the performance of his duties as a member.
(6) Regular meetings of the state board shall be held monthly.
Special meetings may be called by the chairman or at the request of a
majority of the board. Three (3) members in attendance shall consti-
tute a quorum.
A complete record of the proceedings of the board shall be made
and such record shall be open to public inspection.
(7) The state board shall employ an executive director as chief
administrative officer and set his compensation. The executive director
shall be a person experienced in the field of water management or
water conservation and shall serve at the pleasure of the state board.
(8) The state board may employ a legal staff for the purposes of
(a) providing legal counsel on matters relating to the exercise of its
powers and duties; (b) representing it in all proceedings of an adminis-
trative or judicial nature; and (c) otherwise assisting in the adminis-
tration of the provisions of this code.








CHAPTER 1


(9) For the purpose of administration, the board shall organize
itself in the manner it deems necessary to segregate and conduct the
work of the board properly. The work of the board shall be divided
into at least three (3) divisions, known as the Division of Water Use,
the Division of Water Quality, and the Division of Weather Modifica-
tion. The state board shall appoint a director of each division who
shall supervise the work thereof and act as technical adviser to the
board on functions under his jurisdiction.
(10) The state board shall be responsible for the administration
of this code at the state level, and is charged with exercising the powers
and fulfilling the duties delegated to it by section 1.06 and other sec-
tions of this code.

1.06 General Powers and Duties of the State Board
In addition to its other powers and duties the state board is author-
ized to:
(1) Carry out topographic surveys, research, and investigations
into all aspects of water use and water quality.
(2) Contract and cooperate with the various agencies of the federal
government and with water management districts, state and local
administrative and governmental agencies, or private persons.
(3) Enter at all reasonable times upon any property other than
dwelling places for the purpose of conducting investigations and stud-
ies, or enforcing any of the provisions of this code, being liable, how-
ever, for actual damage done.
(4) Cooperate with other state agencies, water management dis-
tricts, county or other local governmental organizations, or agencies
created for the purpose of utilizing and conserving the waters of this
state, and to assist such organizations and agencies in coordinating
the use of their facilities and participate in an exchange of ideas,
knowledge, and data with such organizations and agencies. For this
purpose the state board shall maintain an advisory staff of experts.
(5) Prepare, publish, and issue such printed pamphlets and bulle-
tins as the state board deems necessary for the dissemination of infor-
mation to the public concerning its activities.
(6) Appoint and remove agents and employees including specialists
and consultants.
(7) Acquire, lease, and dispose of such real and personal property
as may be necessary in the performance of its functions, including the
acquisition of real property for the purpose of conserving and pro-
tecting water and water-related resources as provided in section 1.23.









A MODEL WATER CODE


(8) Identify by continuing study those areas of the state where
salt water intrusion is a threat to fresh water resources and report its
findings to the water management districts, boards of county commis-
sioners, and the public.
(9) Conduct, either independently or in cooperation with any
person or any county, state, federal, or any other agency, a program
of study, research, experimentation, and evaluation in the field of
weather modification.
The state board shall also license and regulate weather modifica-
tion activities pursuant to the provisions of this act.
(10) Exercise general supervisory authority over all water man-
agement districts created under this code. The state board may review
and rescind any regulation of a water management district to insure
compliance with the provisions and purposes of this code.
(11) (a) Provide such coordination, cooperation, or approval nec-
essary to the effectuation of any plan or project of the federal govern-
ment in connection with or concerning the waters of the state.
The state board shall, subject to confirmation by the legislature,
have the power to approve or disapprove such federal plans or projects
on behalf of the state.
(b) The state board shall, subject to confirmation by the legis-
lature, act on the behalf of the state in the negotiation and consumma-
tion of any agreement or compact with another state or states concern-
ing waters of the state.
(c) No other agency or department of the state shall assume
those duties delegated to the state board in subsections (a) and (b)
above.
(12) (a) Hold annually a conference on water resources develop-
mental programs. Each agency, commission, district, municipality, or
political subdivision of the state responsible for a specific water re-
source development program requiring federal assistance shall at such
conference present its programs and projects and the needs thereof.
(b) Upon termination of the water conference, the state board
shall select those projects for presentation in the state program of
public works which best represent the public welfare and interest of
the people of the state as required for the proper development, use,
conservation, and protection of the waters of the state, and land re-
sources affected thereby.
Thereafter, the state board shall present to the appropriate com-
mittees of the federal government a program of public works, request-
ing authorization for funds for each project.









CHAPTER 1


1.07 State Water Use Plan
(1) The state board shall proceed as rapidly as possible to study
existing water resources of the state; means and methods of conserving
and augmenting such water resources; existing and contemplated needs
and uses of water for protection of the environment, procreation of
fish and wildlife, recreational use, improvement of water quality, irri-
gation, mining, power development, and domestic, municipal, and
industrial uses, and all other related subjects including drainage,
reclamation, flood-plain zoning, and selection of reservoir sites.
The state board shall progressively formulate an integrated, co-
ordinated program for the use and development of the waters of the
state based on the above studies. This program, with such amendments,
supplements, and additions as may be necessary later, shall be known
as the State Water Use Plan.
(2) The plan shall be directed toward the achievement of the fol-
lowing objectives:
(a) the attainment of maximum reasonable-beneficial use of
water for such purposes as those referred to in subsection (1) above;
(b) the proper economic development of the waters of the state;
(c) the control of the waters of the state for such public pur-
poses as navigation, drainage, sanitation, and flood control;
(d) the attainment of adequate water quality as expressed in the
state water quality plan; and
(e) the implementation of the water resources policies expressed
in section 1.02 of this code.
(3) For the purposes of this plan the state board shall divide each
water management district into sections which shall conform as nearly
as practicable to a hydrologically controllable area and describe all
water resources within the area. The state board shall determine:
(a) presently exercised domestic uses and water permit rights,
and
(b) the quantity of water available for application to reasonable-
beneficial uses in the future.
(4) Within each section the state board shall establish the follow-
ing:
(a) Minimum flow for all surface watercourses in the area. The
minimum flow for a given watercourse shall be the limit at which
further withdrawals would be harmful to the water resources and ecol-
ogy of the area.
(b) Minimum lake level for all fresh water lakes and ponds in
the area greater than 25 acres. The minimum level of a given lake or








A MODEL WATER CODE


pond shall be the level at which further withdrawals would be harmful
to the water resources and ecology of the area.
(c) Minimum ground water level. The minimum ground water
level shall be the level of ground water in an aquifer at which further
withdrawals would be harmful to the water resources of the area.
(5) The minimum flow, minimum lake level, and minimum ground
water level shall be calculated by the state board using the best infor-
mation available. Where appropriate, minimum flows and levels may
be calculated to reflect seasonal variations. The state board shall also
consider and at its discretion may provide for the protection of non-
consumptive uses in the establishment of minimum flows and levels.
(6) The governing boards shall condition permits under chapter 2
of this code in such a manner as to preserve minimum flows and levels
established under this section.
(7) The state board shall give careful consideration to the require-
ments of public recreation, the protection of the environment, and pro-
creation of fish and wildlife. The state board may prohibit or restrict
other future uses on certain designated streams which may be incon-
sistent with these objectives.
(8) The state board may also designate certain uses in connection
with a particular source of supply which, because of the nature of the
activity or the amount of water required, would constitute an undesir-
able use for which the governing board may deny a permit under the
provisions of chapter 2.
(9) The state board may also designate certain uses in connection
with a particular source supply which, because of the nature of the
activity or the amount of water required, would result in an enhance-
ment or improvement of the water resources of the area. Such uses
shall be preferred over other uses in any action pursuant to section
2.05 of this code.
(10) The state board may add to the state water use plan any
other information, directions, or objectives it feels necessary or de-
sirable for the guidance of the governing boards in the administration
and enforcement of this code.
(11) During the process of formulating or revising the state water
use plan, the state board shall consult with and carefully evaluate the
recommendations of concerned federal, state, and local agencies, par-
ticularly the governing boards of the various water management dis-
tricts.
(12) Each governing board is directed to cooperate with the state
board in conducting surveys and investigations of water resources, to









CHAPTER 1


furnish to the state board all available data of a technical nature that
might be useful to it in the formulation of the state plan, and to advise
and assist the state board in the formulation and drafting of those por-
tions of the state plan which are applicable to its district.
(13) The state board shall not adopt or modify the state water use
plan or any portion thereof without first holding a public hearing on
the matter. At least ninety (90) days in advance of such hearing the
state board shall notify any affected governing boards, and shall give
notice of such hearing by publication within the affected region pur-
suant to section 1.09 of this code.

1.08 State Water Plan
(1) The state water use plan and the state water quality plan, taken
together, shall constitute a single unified plan for water resources use,
conservation, and development. This overall plan shall be known as
the state water plan.
(2) Respective portions of the state water use plan and the state
water quality plan shall be developed together to achieve maximum
coordination.

1.09 Adoption of Regulations by the State Board
(1) The state board shall adopt, promulgate, and enforce such
regulations as may be necessary or convenient to administer the pro-
visions of this code.
(2) Regulations affecting the public interest other than regulations
relating to the internal organization and operation of the state board
shall be adopted as follows:
(a) The proposed regulations shall be contained in a resolution
adopted by the state board at a regular or called meeting and included
in the minutes of its proceedings.
(b) Within ten (10) days of the adoption of such resolution,
notice of the regulation in the form of a summary thereof (or in full,
at the discretion of the state board) shall be published once in four (4)
newspapers of general circulation in the state. This notice shall fix the
time and place for a public hearing before the state board to be held
not less than ten (10) or more than twenty (20) days from the date
of publication.
(c) Opportunity shall be afforded interested persons to present
their views at such public hearing either orally or in writing or both,
at the discretion of the state board. Objections may be raised to both









A MODEL WATER CODE


the nature and form of such regulation. Following such hearing the
state board may amend, revise, or rescind the resolution, which action
shall be set forth in minutes of its proceedings, and by resolution adopt
the regulation as proposed or as amended, or revised, or may deter-
mine that no regulation is necessary.
(d) Upon the adoption of any regulation as provided, a copy
thereof certified by the chairman shall, within five (5) days of the
adoption thereof, be filed in the office of the secretary of state and
shall become effective fifteen (15) days after such filing except as
hereafter provided.
(e) Regulations relating to the internal organization or manage-
ment of the state board not affecting the public interest shall be
adopted by resolution recorded in the minutes of its proceedings and
shall become effective immediately upon the filing of a copy thereof,
certified by the chairman, in the office of secretary of state.

1.10 Enforcement Proceedings before the State Board
(1) All proceedings before the state board concerning the enforce-
ment of any provision of this code or any regulation adopted pursuant
thereto, or the issuance, modification, or revocation of any permit or
license under this code, by the state board, shall be conducted in accord-
ance with this section. However, review of actions of the governing
board pursuant to section 1.21 of this code shall not be governed by
the provisions of this section.
(2) Parties affected by action of the state board shall be timely
informed by the state board of the time, place, and nature of any hear-
ing; the legal authority and jurisdiction under which the hearing is to
be held; and the matters of fact and law asserted. In fixing the time and
place for hearings, due regard shall be had for the convenience and
necessity of the parties or their representatives.
(3) The state board is authorized to administer oaths to witnesses,
make findings of fact and determinations of law, and otherwise regulate
the course of the hearing.
(4) (a) The state board may require the production of books, pa-
pers, or other documents and issue subpoenas to compel the attendance
and testimony of witnesses.
(b) If any person shall refuse to obey any subpoena as issued or
shall refuse to testify or produce any books, papers, or other docu-
ments required by the subpoena, the state board may petition the
[appropriate] court of the county where such person is served with
subpoena or where he resides to issue its rule nisi to such person re-








CHAPTER 1


quiring him to obey the same unless such person shows sufficient cause
for failing to obey said subpoena. The state board shall deposit with
said court, when such subpoena is issued in its behalf, the per diem
and mileage allowable to secure the attendance of such witnesses.
(5) The state board or any party to a proceeding before it may
cause the deposition of witnesses residing within or without the state
to be taken in the manner prescribed by law for deposition in civil
actions before the [appropriate] courts of this state.
(6) A full and accurate record of proceedings before the state
board shall be taken and shall constitute the sole record for the pur-
poses of judicial review.
(7) Each witness who appears by order of the state board shall
receive for his attendance the same fees and mileage allowed by law to
witnesses in civil cases, which shall be paid by the parties at whose
request the witness is subpoenaed.
(8) The state board shall not be bound by the technical rules of
evidence but may exclude irrelevant, immaterial, or unduly repetitious
evidence. Parties to the hearing shall have the right to present their
cases or defenses by oral or documentary evidence, to cross-examine,
and to submit rebuttal.
(9) The state board is authorized to hold conferences for the pur-
pose of consolidating applications for a hearing, selecting dates for a
hearing satisfactory to the parties, exploring all feasible methods to
eliminate surprise and delay, and to shorten the hearing, including
arrangements for the parties in advance of the hearing to exchange
written qualifications of professional expert witnesses, and maps, charts,
engineering analyses, and other items contemplated for introduction
as evidence, and to encourage stipulations among the parties directed
toward the same or similar ends.
(10) An agent of the state board may preside over any proceedings
under this section before the state board and, subject to final approval
by the state board, exercise in its name any and all of the powers
enumerated in this section.

1.11 Judicial Review of Regulations and Orders of the State Board
(1)(a) Any affected party may obtain a judicial declaration as to
the validity, meaning, or application of any regulation of the state
board by bringing an action for declaratory judgment in the [appropri-
ate] court of the county in which the executive offices of the state board
are maintained.
(b) In addition to any other ground which may exist, any regu-









A MODEL WATER CODE


lation of the state board may be declared invalid, in whole or in part,
for a substantial failure to comply with the provisions of this code.
(2) Any party aggrieved by a final order in any proceedings before
the state board under sections 1.10 or 1.22 may seek judicial review
of such order by petition for certiorari to the [appropriate] court within
the time and manner prescribed by the state appellate rules.

1.12 Appropriation of Funds to Water Management Districts
The state board shall allocate to the water management districts
from funds appropriated to the state board such part thereof as may
be necessary for the administrative expenses of such districts. The gov-
erning boards shall submit annual budgets to the state board.

1.13 Annual User-Surveillance Fee-Fee Scale-Collection
(1) Every person who requires a permit under chapters 2 or 5 of
this code shall be subject to a user-surveillance fee. This fee shall be
an annual fee based on a schedule established by the state board.
(2) The user-surveillance fee shall be collected on an annual basis
by the state board or an appropriate agency designated by the legisla-
ture. All monies received under the provisions of this section shall be
earmarked and allocated for the use of the water management districts,
and shall be in addition to monies otherwise appropriated in the general
appropriation bill; provided, however, that an amount not exceeding
ten (10) per cent of such monies shall be used for the cost of collection
and administration.
(3) The failure of any person to pay the user-surveillance fee es-
tablished hereunder shall constitute grounds for revocation of his per-
mit.

1.14 Water Resources Development Account
(1) There is hereby established a continuing fund in the general
fund in the state treasury to be known as the water resources develop-
ment account.
(2) The state board may, subject to any limitations otherwise im-
posed by law, receive and accept in the name of the state any funds
which may be offered or become available from federal grants or appro-
priations, private gifts, donations, or bequests. Such funds shall be
deposited in the water resources development account.
(3) Legislative appropriations, other than annual appropriations
for the administration of this code by the state board, shall be credited
to the water resources development account.
(4) In accord with the powers granted to the state board, it may








CHAPTER 1


expend funds from the water resources development account for ad-
ministration and to finance any project for the protection, conservation,
and development of the water resources of this state.
(5) The state board by regulation shall establish a schedule of fees
to accompany application for any permit authorized under chapters 2,
3, 4, and 5 of this code.
1.15 Water Management Districts: Boundaries
The state shall be divided into the following water management
districts:
(Legal description of the boundaries of each district to follow.)
1.16 Governing Board
(1) The governing board of each water management district shall
be composed of five (5) members who shall own real property within
the district and shall reside within the district. Each member's term
of office shall be for five (5) years or until his successor has been
appointed and approved; provided, however, that of the members
composing the initial board, one shall serve for a term of five years,
one for a term of four years, one for a term of three years, one for a
term of two years, and one for a term of one year. Any member ap-
pointed to fill a vacancy occurring prior to the expiration of the term
for which his predecessor was appointed shall be appointed for the
remainder of that term. Members shall be eligible for no more than
two (2) consecutive terms. Service for a partial term, while filling a
vacancy, shall not count against the maximum length of service
allowed a member. The governor may remove from office any officer
in the manner and for cause defined by the laws of this state appli-
cable to situations which may arise in the district.
(2) The member of the initial governing board who is appointed
for a five-year term shall serve as chairman for the first year. There-
after, the members of the governing board shall annually elect one of
their number as chairman. In the event of the absence or illness of the
chairman, the senior member of the governing board shall act as
temporary chairman.
The members of the governing board shall annually elect from
among their number a secretary and a treasurer.
(3) Members of the governing board shall be appointed by the
governor, subject to confirmation by the senate at the next regular
session of the legislature, and the refusal or failure of the senate to
confirm an appointment shall create a vacancy in the office to which
the appointment was made.









A MODEL WATER CODE


(4) The governing board shall appoint as its executive director an
engineer or hydrologist who shall serve as the board's chief adminis-
trative officer. The executive director shall meet the qualifications set
forth in section 1.05 (7) and other reasonable qualifications estab-
lished by the governing board.
(5) The governing board may employ a legal staff for the purposes
of: (a) providing legal counsel on matters relating to the exercise of
its powers and duties; (b) representing it in all proceedings of an
administrative or judicial nature; and (c) otherwise assisting in the
administration of the provisions of this code.
(6) Members of the governing board shall be compensated at a
rate not to exceed dollars per annum. In addition, each
member shall be reimbursed for traveling and other necessary ex-
penses incurred in the performance of his duties as a member.
(7) Regular meetings shall be held quarterly. Special meetings may
be called by the chairman or at the request of a majority of the mem-
bers of the governing board.
(8) Three (3) members in attendance shall constitute a quorum.
A complete record of the proceedings of the governing board shall be
made and such record shall be open to public inspection.


1.17 General Powers and Duties of the Governing Board
In addition to the other powers and duties allowed it by this code,
the governing board is authorized to:
(1) Make surveys and investigations of the water supply and re-
sources of the district and cooperate with the state board in similar
activities.
(2) Enter at all reasonable times upon any property other than
dwelling places for the purpose of conducting investigations and studies
or enforcing any of the provisions of this code, being liable, however,
for actual damage done.
(3) Acquire, lease, and dispose of such real and personal property
as may be necessary in the performance of its functions, including the
acquisition of real property for the purpose of conserving and pro-
tecting water and water-related resources as provided in section 1.23.
(4) Acquire by purchase or condemnation according to law such
lands, rights-of-way, and water rights as may be needed for flood
control, recreation, conservation, and water resource development pro-
grams undertaken pursuant to the provisions of this code.
(5) Construct, maintain, and operate works for flood control and








CHAPTER 1


water resource development and exercise all the rights of ownership
over waters contained within such works.
(6) Appoint and remove agents and employees including specialists
and consultants.
(7) Appoint and fix the salary of an executive director who shall
be an engineer or hydrologist with at least five (5) years of experience
relating to water resources. The executive director shall be chief ad-
ministrative officer and serve at the pleasure of the governing board.
(8) Utilize the services or personnel of any state or local govern-
mental agency with its consent, particularly the advisory staff of the
state board.
(9) Expend funds for purposes of promotion, advertisement, and
improvement of the program and objectives of the district.
(10) Contract with public agencies, private corporations, or other
persons for the purpose of carrying out any of the powers of the
district.
(11) Cooperate with any county, city, state agency, or public
district in water resource development and, when requested, enter into
cooperative agreements to prepare plans and specifications, construct
or maintain and operate projects, or expend money in behalf of such
county, city, state agency, or public district to accomplish the purposes
of this code.
(12) Subject to the approval of the state board, cooperate or con-
tract with agencies of the United States government whenever such
cooperation or contract would be desirable for the district.
(13) Establish as it deems necessary local advisory boards to advise
and make recommendations to the governing board concerning local
or specialized problems.
(14) Consult and advise all users of water resources and permit
applicants as to the availability of water resources and the most prac-
ticable method of water diversion, development, conservation, and
utilization.
(15) Exercise such additional power and authority consistent with
this code as may be necessary to perform such acts and duties and to
decide and dispose of such matters as are not specifically defined in or
covered by this code.

1.18 Adoption of Regulations by the Governing Board
(1) In administering the provisions of this code the governing
board shall adopt, promulgate, and enforce such regulations as may be
necessary to carry out its functions.








A MODEL WATER CODE


(2) Regulations affecting the public interest other than regulations
relating to the internal organization and operation of the district shall
be adopted as follows:
(a) The proposed regulation shall be contained in a resolution
adopted by the governing board at a regular or called meeting and
included in the minutes of its proceedings.
(b) Within ten (10) days of the adoption of the resolution of
the board, notice of the regulation in the form of a summary thereof
(or in full, at the discretion of the governing board) shall be published
once in four (4) newspapers of general circulation in the district. Such
notice shall fix the time and place for a public hearing before the
governing board, to be held not less than ten (10) or more than
twenty (20) days from the date of publication.
(c) Opportunity shall be afforded interested persons to present
their views at such public hearing either orally or in writing or both,
at the discretion of the governing board. Objections may be raised to
the nature and form of such regulation. Following such hearing the
governing board may amend, revise, or rescind the resolution, which
action shall be set forth in the minutes of the board, and it shall by
resolution adopt the regulation as proposed, amended, or revised, or
may determine that no regulation is necessary.
(d) Upon the adoption of any regulation as provided, a copy
thereof certified by the chairman shall, within five (5) days of the
adoption thereof, be filed in the office of the secretary of state and
shall become effective fifteen (15) days after such filing except as
hereafter provided.
(e) Regulations relating to the internal organization or manage-
ment of the district not affecting the public interest shall be adopted by
resolution recorded in the minutes of the governing board and shall
become effective immediately upon the filing of a copy thereof, cer-
tified by the chairman, in the office of the secretary of state.

1.19 Application and Notice
(1) Applications for a permit required under the provisions of this
code shall be filed with the water management district on an appro-
priate form provided by the governing board.
(2) Upon receipt of the application the governing board shall cause
a notice thereof to be published in a newspaper having general cir-
culation within the affected area. The notice shall be published at
least once a week for two (2) consecutive weeks. In addition, the
governing board shall send a copy of such notice to any person who








CHAPTER 1


has filed a written request for notification of any pending applications
affecting this particular designated area. This notification shall be sent
by regular mail prior to the date of last publication.
(3) This section shall not be applicable to permits or licenses
issued under the provisions of chapters 3 and 6 of this code.

1.20 Citizen Complaints
Any person may file with the governing board a signed complaint
against any other person allegedly violating any provisions of this
code. The governing board shall cause an investigation to be made,
and if the facts stated in the complaint are verified, the governing
board shall take appropriate action and notify the complainant thereof.
If the complainant is dissatisfied with the action of the governing
board, he may apply to the governing board for a hearing which shall
be conducted pursuant to the provisions of section 1.21. Such applica-
tion must be made within ten (10) days after receipt of the notification
sent by the governing board. If the complainant is dissatisfied with the
action taken under this section, he may take an administrative appeal
to the state board under the provisions of section 1.22. Neither the
governing board nor the state board shall be obligated to assist the
complainant in gathering information, making investigations, or by
providing counsel for the purpose of drawing his complaint.

1.21 Proceedings before the Governing Board
(1) All proceedings before the governing board concerning the
issuance, modification, and revocation of permits or the enforcement
of any provision of this code by the governing board shall be con-
ducted in accordance with the provisions of this section.
(2) Parties affected by action of the governing board shall be timely
informed by the governing board of the time, place, and nature of any
hearing; the legal authority and jurisdiction under which the hearing is
to be held; and the matters of fact and law asserted. In fixing the time
and place for hearings, due regard shall be had for the convenience
and necessity of the parties or their representatives.
(3) The governing board is authorized to administer oaths to wit-
nesses, make findings of fact and determinations of law, and otherwise
regulate the course of the hearing.
(4) (a) The governing board may require the production of books,
papers, or other documents and issue subpoenas to compel the at-
tendance and testimony of witnesses.
(b) If any person shall refuse to obey any subpoena as issued








20 A MODEL WATER CODE

or shall refuse to testify or produce any books, papers, or other
documents required by the subpoena, the governing board may petition
the [appropriate] court of the county where such person is served
with said subpoena or where he resides to issue its rule nisi to such
person requiring him to obey the same unless such person shows
sufficient cause for failing to obey said subpoena. The governing board
shall deposit with said court, when such subpoena is issued in its be-
half, the per diem and mileage allowable to secure the attendance of
such witnesses.
(5) The governing board or any party to a proceeding before it
may cause the deposition of witnesses residing within or without the
state to be taken in the manner prescribed by law for deposition in
civil actions before the [appropriate] courts of this state.
(6) A full and accurate record of proceedings before the board
shall be taken and shall constitute the sole record for the purpose of
judicial review.
(7) Each witness who appears by order of the governing board
shall receive for his attendance the same fees and mileage allowed by
law to witnesses in civil cases, which shall be paid by the parties at
whose request the witness is subpoenaed.
(8) The governing board shall not be bound by the technical rules
of evidence but may exclude irrelevant, immaterial, or unduly repeti-
tious evidence. Parties to the hearing shall have the right to present
their case or defense by oral or documentary evidence, to cross-
examine, and to submit rebuttal.
(9) The governing board is authorized to hold conferences for the
purpose of consolidating applications for a hearing, selecting dates
for a hearing satisfactory to the parties, exploring all feasible methods
to eliminate surprise and delay, and to shorten the hearing, including
arrangements for the parties in advance of the hearing to exchange
written qualifications of professional expert witnesses, and maps,
charts, engineering analyses, and other items contemplated for intro-
duction as evidence, and to encourage stipulations among the parties
directed toward the same or similar ends.
(10) When a number of applications are pending on a water source
having a common factual background, the governing board may con-
solidate such applications for hearing and report the hearing by a
common transcript.
(11) An agent of the governing board may preside over any pro-
ceeding under this section before the governing board regarding is-
suance of a permit and, subject to final approval by the governing







CHAPTER 1


board, exercise in its name any and all of the powers enumerated in
this section.

1.22 Administrative Review
(1) Upon petition by any aggrieved person or upon its own mo-
tion, the state board shall at any time review any action or failure to
act by a governing board.
(2) The evidence before the state board shall consist of the record
before the governing board and any other relevant evidence which,
in the judgment of the state board, should be considered to effectuate
and implement the policies of this code.
(3) The state board may find the governing board's action or
inaction to be appropriate and proper. Upon a finding that the action
of the governing board, or the failure of the governing board to act,
was inappropriate or improper, the state board may:
(a) direct that the appropriate action be taken by the governing
board,
(b) refer the matter to any other state agency having jurisdiction,
(c) take the appropriate action itself, or
(d) any combination of the foregoing.
In taking any such action, the state board is vested with all the powers
of the governing board granted under this code.
(4) In the event of a dispute between two or more water manage-
ment districts, the state board shall decide the issue on its own
motion or on the motion of one of the districts.
(5) In the case of review by the state board under the provisions
of this section, the state board may stay in whole or in part the effect
of a decision or order of a governing board.

1.23 Acquisition of Real Property
(1) The legislature declares it to be necessary for the public health
and welfare that water and water-related resources be conserved and
protected; the acquisition of real property for this objective shall
constitute a public purpose for which public funds may be expended.
(2) The state board and the governing boards are empowered and
authorized to acquire real property and easements therein by purchase,
gift, devise, lease, eminent domain, or otherwise for flood control,
water management, or water and water-related resource conservation.
(3) Lands, water areas, and related resources which may be ac-
quired for this purpose shall include, but not be limited to, streams
and watercourses, parks and recreation areas, beaches, submerged








A MODEL WATER CODE


lands, and other open areas, as well as necessary access sites and
rights-of-way.
(4) This section shall not limit the exercise of similar powers
delegated by statute to any state or local governmental agency.

1.24 Salt Water Barrier Line
(1) The governing board may, at the request of the board of county
commissioners of any county, municipality, or water district respon-
sible for the protection of a public water supply or, having determined
by adoption of an appropriate resolution that salt water intrusion has
become a matter of emergency proportions, by its own initiative,
establish generally along the seacoast, inland from the seashore and
within the limits of the area within which the petitioning board has
jurisdiction, a salt water barrier line. Inland of this line no canal
shall be constructed or enlarged and no natural stream shall be deep-
ened or enlarged which shall discharge into tidal waters without a
dam, control structure, or spillway at or seaward of the salt water
barrier line to prevent the movement of salt water inland of the salt
water barrier line. Provided, however, that the governing board is
authorized, in cases where salt water intrusion is not a problem, to
waive the requirement of a barrier structure by specific permit to
construct a canal crossing the salt water barrier line without a protec-
tive device and provided further that the agency petitioning for the
establishment of the salt water barrier line shall concur in the waiver.
(2) Application by a board of county commissioners, a munici-
pality, or a water district for the establishment of a salt water barrier
line shall be made by adoption of an appropriate resolution agreeing
to require compliance with the provisions of this law by county or
district forces under their control; by those individuals or corpora-
tions filing plats for record; and by individuals, corporations, or agen-
cies seeking authority to discharge surface or subsurface drainage into
tidal waters.
(3) No final order establishing a salt water barrier line shall be
adopted by the governing board until a public hearing shall be held,
and the evidence presented at the hearing shall be given consideration
in determining the location of the salt water barrier line.

1.25 Penalties: Common Law Remedies
(1) The state board may enforce its regulations and orders, adopted
pursuant to this code, by suit for injunction, or for damages, or both.
(2) The governing board may enforce its regulations and orders,








CHAPTER 2


adopted pursuant to this code, by suit for injunction, or for damages,
or both.
(3) Any person who violates any provision of this code shall be
guilty of a misdemeanor and upon conviction thereof shall be subject
to imprisonment not to exceed six (6) months, or a fine not to exceed
$1,000, or both. For a continuing offense, each day during which the
offense is committed shall be considered a separate violation.
(4) No provision of this code shall bar the right of any injured
person to seek other legal or equitable relief against a water user for
actions in violation of this code.

1.26 Severability
If any section, subsection, sentence, clause, phrase, or words of
this code are for any reason held to be unconstitutional, or invalid,
such action shall not affect the validity of any remaining portion of
this code.



Chapter 2


2.01 Permits Required
(1) No person shall make any withdrawal, diversion, impound-
ment, or consumptive use of water without obtaining a permit from
the governing board. However, no permit shall be required for do-
mestic consumption of water by individual users.
(2) In the event that any person shall file a complaint with the
governing board that any other person is making a diversion, with-
drawal, impoundment, or consumptive use of water not expressly
exempted under the provisions of this code and without a permit to
do so, the governing board shall cause an investigation to be made,
take appropriate action, and notify the complainant thereof.
(3) No provision of this chapter shall apply to coastal waters as
defined in section 1.03 (13) of this code.

2.02 Conditions for a Permit
(1) To obtain a permit pursuant to the provisions of this chapter,
the applicant must establish that the proposed use of water (a) is a
reasonable-beneficial use as defined in section 1.03 (4) of this code,
(b) will not interfere with any presently existing legal use of water,








A MODEL WATER CODE


and (c) is consistent with the public interest and the provisions of
the State Water Plan.
(2) The common law of the state to the contrary notwithstanding,
the governing board may allow the holder of a use permit to transport
and use surface or ground water beyond overlying land or outside
of the watershed from which it is taken if the governing board deter-
mines that such transport and use are consistent with the public interest.
(3) The governing board by regulation may reserve from use by
permit applicants water in such locations and quantities and for such
seasons of the year as in its judgment may be required to implement
a provision of the State Water Plan. Such reservations shall be subject
to periodic review and revision in the light of changed conditions;
provided, however, that all presently existing legal uses of water shall
be protected.
2.03 Existing Uses
(1) All existing uses of water, unless otherwise exempted from
regulation by the provisions of this code, may be continued after the
effective date of this code only with a permit issued as provided in
section 2.04 of this code.
(2) The governing board shall issue an initial permit for the con-
tinuation of all uses in existence before the effective date of this code
upon application without further proceedings under section 2.04 of
this code if the existing use is a reasonable-beneficial use as defined in
section 1.03 (4) of this code and is allowable under the common
law of this state.
(3) Applications for permit under the provisions of subsection (2)
above must be made within a period of three (3) years from the
effective date of this code. Failure to apply within this period shall
create a conclusive presumption of abandonment of the use, and the
user if he desires to revive the use must apply for a permit under the
provisions of section 2.04 of this code.
(4) In the event that the governing board refuses to issue a permit
upon timely application under subsection (2) above for a use allow-
able under the common law of this state, the user shall be allowed
reasonable compensation amounting to reimbursement for any dam-
ages attributable to the lessening of his water supply and any expenses
related thereto.
2.04 Application for a Permit
(1) All permit applications filed with the governing board under
this chapter and notice thereof required under section 1.19 of this









CHAPTER 2


code shall contain the name and address of the applicant (in the case
of a corporation, the address of its principal business office), the date
of filing, the date set for a hearing if any, the source of the water
supply, the quantity of water applied for, the use to be made of the
water and any limitations thereon, the place of use, the location of
the well or point of diversion, and such other information as the
governing board may deem necessary.
(2) The notice shall state that written objections to the proposed
permit may be filed with the governing board by a specified date. The
governing board, at its discretion, may request further information
from either applicant or objectors, and a reasonable time shall be al-
lowed for such responses.
(3) If the proposed application does not exceed [150,000] gallons
per month, the governing board may consider the application and any
objections thereto without a hearing. If no objection to the application
is received, the governing board, after proper investigation by its staff,
may at its discretion approve the application without a hearing if the
proposed application does not exceed [1,500,000] gallons per month.
Otherwise, the governing board shall set a time for a hearing under
section 1.21 of this code.
2.05 Competing Applications
(1) If two or more applications which otherwise comply with the
provisions of section 2.02 of this code are pending for a quantity of
water that is inadequate for both or all, or which for any other reason
are in conflict, the governing board shall have the right to approve
that application which best serves the public interest.
(2) In the event that two or more competing applications qualify
equally under the provisions of subsection (1) above, the governing
board shall give preference to a renewal application over an initial
application.
2.06 Duration of Permits
(1) Permits may be granted for any period of time not exceeding
twenty (20) years. The governing board may base duration of permits
on a reasonable system of classification according to source of supply,
type of use, or both.
(2) The state board may authorize a permit of duration of up to
fifty (50) years in the case of a municipality or other governmental
body where such a period is required to provide for the retirement
of bonds for the construction of waterworks and waste-disposal
facilities.









A MODEL WATER CODE


2.07 Modification and Renewal of Permit Terms
(1) A permitted may seek modification of any terms of an un-
expired permit.
(2) If the proposed modification involves an increase in water use
of 150,000 gallons per month or more, the application shall be treated
under the provisions of section 2.04 in the same manner as the initial
permit application. Otherwise, the governing board may, at its discre-
tion, approve the proposed modification without a hearing provided
that the permitted establish that (a) a change in conditions has re-
sulted in the water allowed under the permit becoming inadequate
for the permitted's needs, or (b) the proposed modification would
result in a more efficient utilization of water than is possible under
the existing permit.
(3) All permit renewal applications shall be treated under section
2.04 of this code in the same manner as the initial permit application.

2.08 Revocation of Permits
After a hearing under section 1.21 of this code the governing board
may revoke permits as follows:
(1) For any material false statement in an application to continue,
to initiate, or to modify a use, or for any material false statement in
any report or statement of fact required of the user pursuant to the
provisions of this code, the governing board may revoke the user's
permit, in whole or in part, permanently.
(2) For willful violation of the conditions of the permit, the
governing board may permanently or temporarily revoke the permit,
in whole or in part.
(3) For violation of any provision of this code, the governing
board may revoke the permit, in whole or in part, until the permitted
complies with all provisions of the code.
(4) For nonuse of the water supply allowed by the permit for a
period of two (2) years or more, the governing board may revoke the
permit permanently and in whole unless the user can prove that his
nonuse was due to extreme hardship caused by factors beyond his
control.
(5) The governing board may revoke a permit, permanently and
in whole, with the written consent of the permitted.

2.09 Declaration of Water Shortage
(1) The governing board, by regulation, shall formulate a plan for
implementation during periods of water shortage. As a part of this








CHAPTER 2


plan the governing board shall adopt a reasonable system of permit
classification according to source of water supply, method of extrac-
tion or diversion, use of water, or a combination thereof.
(2) The governing board, by regulation, may declare that a water
shortage exists within all or part of the district when insufficient water
is available to meet the requirements of the permit system or the
State Water Plan, or, when conditions are such as to require temporary
reduction in total water use within the area to protect water resources
from serious harm.
(3) In accordance with the plan adopted under subsection (1)
above, the governing board may impose such restrictions on one or
more classes of permits as may be necessary to protect the water
resources of the area from serious harm and to restore them to their
previous condition.
(4) A declaration of water shortage and any measures adopted
pursuant thereto may be rescinded by regulation by the governing
board.
(5) When a water shortage is declared, the governing board shall
cause notice thereof to be published in a prominent place within a
newspaper of general circulation throughout the area. Such notice
shall be published each day for the first week of the shortage and
once a week thereafter until the declaration is rescinded. Publication
of such notice shall serve as notice to all water users in the area of
the condition of water shortage.
(6) The governing board shall notify each permitted in the district
by regular mail of any change in the condition of his permit, any
suspension of his permit, or of any other restriction on his use of
water for the duration of the water shortage.
(7) If an emergency condition exists due to a water shortage within
any area of the district, and if the executive director, with the con-
currence of the governing board, finds that the exercise of the powers
under section 2.09 (1) are not sufficient to protect the public health,
safety, or welfare, or the health of animals, fish, or aquatic life, or a
public water supply, or recreational, commercial, industrial, agricul-
tural, or other reasonable uses, the executive director may issue orders
reciting the existence of such an emergency and requiring that such
action, including but not limited to apportioning, rotating, limiting,
or prohibiting the use of the water resources of the district, be taken
as the executive director deems necessary to meet the emergency.
(8) An affected party to whom an emergency order is directed
under section 2.09 (7) shall comply immediately but may challenge








A MODEL WATER CODE


such an order in the manner set forth in section 1.20 of this code. The
governing board shall give such proceedings precedence over all other
pending cases.




Chapter 3


3.01 Definitions
When appearing in this chapter or in any rule, order, or regulation
adopted pursuant thereto, the following words shall mean:
(1) Well-Any artificial excavation constructed by any method
which is capable of extracting water from, or injecting water into,
the ground. It shall include, but not be limited to, water-table wells,
artesian wells, core-boring holes, recharge wells, drainage wells, geo-
thermal wells, waste disposal wells, and all excavations made for the
purpose of obtaining or prospecting for oil, natural gas, minerals, or
quarrying, or for inserting media to repressure oil- or natural gas-
bearing formations, or storing petroleum, natural gas, or other prod-
ucts.
(2) Well driller-Any person, firm, or corporation which con-
structs, alters, or repairs wells.
(3) Well construction-The producing of any well, including the
construction, alteration, or repair thereof, but excluding the installa-
tion of pumps and pumping equipment.
(4) Pumps and pumping equipment-Any equipment or materials
utilized or intended for use in withdrawing or obtaining ground water,
including, without limitation, seals, tanks, fittings, and controls.
(5) Pump installation contractor-Any person, firm, or corpora-
tion which is in the business of installing or repairing pumps and
pumping equipment.
(6) Installation of pumps and pumping equipment-The proce-
dure employed in the placement and preparation for operation of
pumps and pumping equipment, including all construction involved in
making entrance to the well, and establishing seals and repairs, as
defined in section 3.01 (7), to existing installations.
(7) Repairs-Any change, replacement, or other alteration of any
well, pump, or pumping equipment, which requires a breaking or
opening of the well seal.








CHAPTER 3


(8) Well seal-An approved arrangement or device used to cap
a well or to establish and maintain a junction between the casing or
curbing of a well and the piping or equipment installed therein, the
purpose or function of which is to prevent pollutants from entering
the well at the other terminal.
(9) Abandoned well-Any well whose use has been permanently
discontinued. Any well shall be deemed abandoned which is in such
a state of disrepair that continued use for the purpose of obtaining
ground water is impractical.
(10) Artificial recharge-The intentional introduction of water
into any underground formation.
3.02 Powers and Duties of the Governing Board
In addition to other powers and duties delegated to it by section
1.17 of this code, and other acts authorized by law, the governing
board shall:
(1) require registration of all existing wells, as provided in section
3.03;
(2) require registration of all well drillers and pump installation
contractors, as provided in section 3.04;
(3) require permits for well construction, as provided in section
3.10;
(4) require permits for installation of pumps and pumping equip-
ment as provided in section 3.11;
(5) require well completion reports, as provided in section 3.13;
(6) develop well construction standards, as provided in section
3.14;
(7) develop pump and pumping equipment installation standards,
as provided in section 3.14; and
(8) adopt, modify, promulgate, and enforce all rules, regulations,
and orders necessary to carry out the provisions of this code.
3.03 Registration of All Existing Wells
(1) Any person owning or operating any well shall register said
well with the governing board of the water management district within
which the well is located. Registration shall be on the forms provided
by the governing board.
(2) The registration report shall include:
(a) the water use permit number,
(b) the legal description of the land upon which the well is
located,
(c) the location of the well,








A MODEL WATER CODE


(d) the purpose of the well,
(e) the diameter of the well,
(f) the name of the well driller who constructed the well,
(g) the maximum capacity of the well,
(h) the name of the pump installation contractor who installed
the pump and pumping equipment, and
(i) such other data as the governing board may require.
(3) The governing board shall maintain a permanent record in
which shall be entered the information gathered from the persons
owning or operating all wells reported.
(4) In addition to the penalties prescribed in section 1.25, a
governing board may deny the issuance of a water use permit, as
provided for in chapter 2, until such time as the applicant registers
all wells which he owns or operates.

3.04 Registration of Well Drillers and Pump Installation Contractors
(1) Any person who wishes to engage in business as a well driller
or a pump installation contractor shall be registered with the gov-
erning board of the water management district in which he intends
to engage in such business and shall be the holder of a valid, current
registration certificate.
(2) Qualifications for Well Driller's Certificate and Pump Installa-
tion Contractor's Certificate:
(a) To be qualified to receive a registration certificate the ap-
plicant must:
(1) be at least 21 years of age;
(2) be of good moral character;
(3) have not less than two (2) years' experience in the work
for which he is applying for registration;
(4) have knowledge of the rules, regulations, and orders
adopted under this code; and
(5) have passed a satisfactory examination conducted by the
governing board.
(3) Certificates of Registration:
(a) shall not be transferable or assignable;
(b) shall be valid only within the water management district
from which they are obtained; and
(c) shall be assigned an identification number.

3.05 Issuance of Certificates and Bonds
When an application for a certificate of registration has been ap-








CHAPTER 3


proved by the governing board, the applicant shall be notified in
writing, after which he shall have thirty (30) days in which to file
with the governing board a performance and compliance bond in the
amount of $5,000.00 per certificate with a corporate surety authorized
to do business in the state, conditioned that such applicant will comply
with the laws of the state and the rules, orders, and regulations of the
governing board while engaging in the business for which he is
registered.

3.06 Supervision of Well Construction and the Installation of Pumps
and Pumping Equipment
(1) All well construction operations shall be performed under the
direct and personal supervision of the registered well driller who
received the permit for well construction, as provided in section 3.10.
(2) All operations connected with the installation of pumps and
pumping equipment shall be performed under the direct and personal
supervision of the registered pump installation contractor who re-
ceived the permit for installation of pump and pumping equipment,
as provided in section 3.11.

3.07 Marking of Vehicles and Equipment
It is the duty of all registered well drillers and registered pump
installation contractors to see that all vehicles, trailers, and rigs used
by them or their employees in their business are marked with legible
identification numbers at all times. The identification number to be
used shall be the registration number which appears on the registra-
tion certificate. The governing board shall set out in detail in its rules,
regulations, and orders the specific method and manner for marking
vehicles and equipment.

3.08 Grounds for Refusal, Suspension, or Revocation of Certificates
The governing board may refuse to issue or renew, or may suspend
or revoke, a certificate of registration on one or more of the following
grounds:
(1) material misstatement in the application for certificate of regis-
tration;
(2) failure to have or retain the qualifications required herein;
(3) intentional misrepresentation of a material fact by an applicant
in connection with any information or evidence furnished the gov-
erning board;
(4) willfully aiding or abetting another in violation of any provi-
sion of this code or any regulation or order issued pursuant thereto;








A MODEL WATER CODE


(5) gross incompetency in the performance of his work;
(6) failure to apply for registration prior to beginning well drilling
operations or pump installation operations within the water manage-
ment district; or
(7) willful disregard or violation of any provision of this code, or
rule, order, or regulation issued pursuant thereto.

3.09 Proceedings to Refuse, Suspend, or Revoke Certificates
(1) Proceedings to refuse, suspend, or revoke a certificate of regis-
tration may be instituted by the water management district or by any
other party by filing a written complaint with the governing board on
forms provided by the board.
(2) The governing board, upon investigation and after a hearing,
as provided in section 1.21 of this code, may refuse, suspend, or
revoke the certificate of registration.

3.10 Permit for Well Construction
(1) Prior to the beginning of construction of all wells, permission
must be obtained from the governing board by making written ap-
plication for the construction on forms to be provided by the board.
The application shall be made by the well driller who will perform
the work and shall contain the following:
(a) the name and registration number of the applicant,
(b) the name and address of the person who will control and
operate the well,
(c) the number of the water use permit,
(d) the location of the well,
(e) the proposed depth and method of construction,
(f) the size and expected capacity of the well,
(g) the name and registration number of the pump installation
contractor, and
(h) such other information as the governing board may require.
(2) The governing board shall issue a permit whenever it finds
that an application is in proper form and contains the required in-
formation, provided that, on the basis of the information therein con-
tained, .the proposed construction will not be contrary to applicable
law, rules, orders, or regulations. Receipt of the permit by the well
driller will constitute permission to begin well construction. The
permit will also direct the well driller to file a well completion report,
as provided in section 3.13.
(3) The governing board shall issue a Notice of Rejection, as pro-








CHAPTER 3


vided in section 3.12, whenever it finds that an application fails to
meet the requirements of this code or any rule, order, or regulation
adopted pursuant hereto.
(4) The permit shall be prominently displayed at the site of the
well prior to beginning any work thereon and shall remain so dis-
played until construction is completed.
(5) The holder of a permit under this section who desires to
change the location of his well before construction is completed shall
apply to the board for an amendment of his permit. The application
shall contain the same information as required for an original applica-
tion, plus information as to the manner of sealing or plugging the
incomplete and abandoned well. If the board determines that the
proposed well at the proposed new location will both serve the same
use as the original well and draw upon the same supply of water and
that the incomplete and abandoned well will be sealed or plugged so
as to prevent waste of water and damage to the water supply so as
not to be dangerous to public safety, it shall approve the application
and issue an amended permit therefore.

3.11 Permit for Installation of Pumps and Pumping Equipment
(1) Prior to the beginning of the installation of pumps and pump-
ing equipment, permission must be obtained from the governing board
by making written application for the construction on forms to be
provided by the board. The application shall be made by the pump
installation contractor who will perform the work and shall contain
the following:
(a) the name and registration number of the applicant,
(b) the number of the water use permit,
(c) the number of the well construction permit,
(d) description of the pumps and pumping equipment to be
installed, and
(e) such other information as the governing board may require.
(2) The governing board shall issue a permit whenever it finds
that an application is in proper form and contains required informa-
tion, provided that on the basis of the information therein contained,
the proposed installation will not be contrary to applicable law, rules,
orders, or regulations. Receipt of the permit by the pump installation
contractor will constitute permission to install pumps and pumping
equipment. The permit will also direct the pump installation con-
tractor to file a well completion report, as provided in section 3.13.
(3) The governing board shall issue a Notice of Rejection, as








A MODEL WATER CODE


provided in section 3.12, whenever it finds that an application fails
to meet the requirements of this code or any rule, order, or regulation
adopted pursuant hereto.
(4) The permit shall be prominently displayed at the site of the
well prior to beginning any work thereon and shall remain so dis-
played until the installation is completed.

3.12 Notice of Rejection, Suspension, or Revocation of Permit
(1) The governing board shall issue a Notice of Rejection when-
ever it determines that an application for a permit under sections
3.10 or 3.11 fails to meet the requirements of this code or any rule,
order, or regulation adopted pursuant hereto.
(2) The Notice of Rejection shall:
(a) state the ground for rejection, and may state any remedial
action which may be taken to make such application acceptable for
approval; and
(b) be served in writing upon the persons signing the applica-
tion by registered or certified mail.
(3) Any applicant receiving a Notice of Rejection may obtain a
hearing before the governing board of the water management district
by filing within thirty (30) days of the mailing of such Notice of
Rejection a written petition requesting such hearing. The hearing
before the governing board shall be conducted pursuant to section
1.21 of this code.
(4) The governing board may, upon investigation, suspend a
permit and, after notice and hearing, may extend such suspension or
may revoke the permit. Such suspension or revocation may be made
on any one or more of the following grounds:
(a) material misstatement or misrepresentation in the applica-
tion for a permit;
(b) failure to comply with the provisions set forth in the permit;
(c) willful disregard or violation of any provision of this code,
or any rule, order, or regulation promulgated pursuant hereto; or
(d) material change of circumstances or conditions existing at
the time such permit was issued.

3.13 Well Completion Report
Within thirty (30) days after the completion of the well, the well
driller and pump installation contractor shall file, upon forms provided
by the governing board, a written report with the board. The report
shall contain the following information:








CHAPTER 3


(1) a log containing the depth, thickness, and character of the
different strata penetrated and the location of water-bearing strata;
(2) an accurate record of the work, including:
(a) statement of the date of beginning of work,
(b) the date of completion,
(c) length, size, and weight of the casing and how the same is
placed,
(d) the size of the drilled hole,
(e) where the well is sealed off and the type of seal,
(f) number of cubic feet per second (cfs) or gallons per minute
(gpm) of flow from the well when completed,
(g) pressure in pounds per square inch (psi) if it is a flowing
well, and if nonflowing, the static water level and the water temper-
ature, and
(h) a chemical analysis of a water sample drawn from the well;
and
(3) such additional information as may be required by the gov-
erning board to establish compliance with the terms of the permit,
the provisions of this code, and all rules, regulations, and orders
promulgated pursuant to this code.

3.14 Well Construction Standards and Pump Installation Standards
(1) The governing board shall adopt minimum standards for the
construction of wells and the installation of pumps and pumping
equipment.
(2) The minimum standards for the construction of wells shall
include, but not be limited to, the following provisions:
(a) all wells shall be equipped with a device for measuring the
amount of ground water being withdrawn from the well, such device
to be approved by the governing board;
(b) all wells shall be capped or equipped with a control valve,
such cap and control valve to be approved by the governing board;
(c) approved procedures for the plugging of wells;
(d) approved procedures for the grouting and sealing of wells;
and
(e) criteria for the location of wells:
(1) with respect to possible pollution sources, and
(2) with respect to maintaining the well in a sanitary con-
dition.
(3) Should any well not be equipped with a cap or valve as
required in subsection (2) above, or should any well be allowed to








A MODEL WATER CODE


flow so as to waste ground water in violation of this section, or should
any well be contaminated because of deficiencies as set forth in sub-
section (2) above, in violation of this section, then:
(a) The governing board shall, upon being informed of this fact,
give notice to the owner of the land upon which the well is situated
to correct the defect or waste as the case may be. If the defect or
waste is not corrected within ten (10) days after notice is given, the
governing board shall have the necessary valve, cap, plug, or other
device installed upon the well.
(b) The cost of installation of the valve, cap, plug, or other
device and the control of the flow from the well shall, if made or
done by the governing board, be at the expense of the owner and shall
be a lien against the tract of land upon which the well is situated
until the expense is paid. Said lien may be foreclosed in a civil action
in any court of competent jurisdiction, and the court shall allow the
plaintiff a reasonable attorney's fee to be set as a part of the cost.
(4) The minimum standards for the installation of pumps and
pumping equipment shall include, but not be limited to, the following
provisions:
(a) The pumps and pumping equipment shall be installed so
that the pumps and their surroundings can be kept in a sanitary
condition.
(b) The pumps and pumping equipment shall be of a capacity
consistent with the water need and the drawdown characteristics of
the well.
(c) The pumps and pumping equipment shall be durable and
reliable in character.
(d) The pumps and pumping equipment shall be constructed of
material which will not create a toxic condition in the water.
(e) The pumps and pumping equipment shall provide reason-
able protection against entrance of pollutants.

3.15 Well Construction Advisory Board
(1) The governing board of each water management district shall
appoint a six- (6) member well construction advisory board. The
advisory board members shall meet the following conditions:
(a) Three (3) of the members shall be registered well drillers.
(b) Three (3) of the members shall be registered pump installa-
tion contractors.
(c) Each member shall reside in the water management district
on whose advisory board he serves.








CHAPTER 3


(d) Each member shall have a minimum of five (5) years of
experience in well construction or installing pumps and pumping
equipment.
(e) No more than one member may be employed or own an
interest in the same company, firm, or business association which is
engaged in any phase of well construction or the installation of pumps
and pumping equipment.
(2) The initial six (6) members shall be appointed for the fol-
lowing terms: two well drillers and two pump installation contractors
for a term of one (1) year, and one well driller and one pump instal-
lation contractor for a term of two (2) years. Thereafter all sub-
sequent appointments shall be for terms of two (2) years.
(3) The advisory board shall advise the governing board on the
following:
(a) the registration requirement with respect to well drillers and
pump installation contractors;
(b) the grounds for refusal, suspension, or revocation of cer-
tificates of registration;
(c) permits for well construction;
(d) permits for installation of pumps and pumping equipment;
(e) well completion reports;
(f) well construction standards and pump installation standards;
(g) the abandonment of wells;
(h) the marking of vehicles and equipment; and
(i) any other matter that the governing board requests.

3.16 Artificial Recharge
(1) No construction may be begun on a project involving artificial
recharge as defined in section 3.01 (10) of this code without written
permission of the governing board of any water management district
within which the construction will take place. Such application shall
contain the detailed plans and specifications for the construction of
the project. Should the application be rejected, the applicant may
obtain a hearing before the governing board by filing a written petition
requesting such hearing. The hearing before the governing board shall
be conducted pursuant to section 1.21 of this code.
(2) The governing board of a water management district may do
any act necessary to replenish the ground water of said district. For
the purposes of replenishing the ground water supplies within the
district, the board may, among other things:
(a) buy and sell water;








A MODEL WATER CODE


(b) exchange water;
(c) distribute water to persons in exchange for ceasing or re-
ducing ground water extractions;
(d) spread, sink, and inject water underground;
(e) store, transport, recapture, reclaim, purify, treat, or other-
wise manage and control water for the beneficial use of persons or
property within the district; and
(f) build the necessary works to achieve ground water replenish-
ment.

3.17 Abandonment of Wells
When a well is abandoned, the owner thereof shall fill and seal the
well in a manner approved by the governing board. Prior to abandon-
ment the owner shall file with the governing board a report showing
the following:
(1) the name and address of the owner;
(2) the water use permit number;
(3) the name and address of the registered well driller who will be
employed to perform the work required for abandonment;
(4) the reason for abandonment; and
(5) a description of the work to be performed to effect the
abandonment consistent with the standards adopted pursuant to sec-
tion 3.14 (2) (c) and (d).

3.18 Drainage Wells
All drainage wells shall conform to the provisions of this chapter
as well as the provisions of chapter 5.

3.19 Exemptions and Limitations
No provisions of this chapter shall apply to:
(1) any distribution of water beyond the point of discharge from
the storage or pressure tank, or beyond the point of discharge from
the pump if no tank is employed; or
(2) any well, pump, or other equipment used temporarily for
dewatering purposes.








CHAPTER 4


Chapter 4







4.01 Definitions
When appearing in this chapter or in any rule, order, or regulation
adopted pursuant thereto, the following words shall mean:
(1) Dam-Any artificial or natural barrier, with appurtenant
works, raised to obstruct or impound, or which does obstruct or im-
pound, any of the surface waters of this state.
(2) Appurtenant work-Any artificial improvement to a dam
which might affect the safety of such dam, or, when employed, might
affect the holding capacity of such dam, or of the reservoir or im-
poundment created by such dam.
(3) Impoundment-Any lake, reservoir, pond, or other contain-
ment of surface water occupying a bed or depression in the earth's
surface and having a discernible shoreline.
(4) Reservoir-Any artificial or natural holding which contains
or will contain the water impounded by a dam.
(5) Work-Any artificial structure not included in section 4.01
(1) and (2), and including, but not limited to, ditches, canals, con-
duits, channels, culverts, pipes, and other construction that connects
to, draws water from, drains water into, or is placed in or across the
waters of the state.
(6) Alter-To extend a dam or work beyond maintenance in its
original condition, including changes which may increase or diminish
the flow or storage of surface water or which may affect the safety of
such dam or work.
(7) Maintenance-"Maintenance" or "repairs" shall mean only
such maintenance or repairs as may affect the safety of any dam,
impoundment, reservoir, appurtenant works, or works.
(8) Variants of defined word-The definition of a defined word
applies to any of its variants.


4.02 Exemptions
(1) Nothing in this chapter, or in any rule, order, or regulation
adopted pursuant thereto, shall be construed to affect the right of any








A MODEL WATER CODE


natural person to capture, contain, discharge, and use surface water
for uses permitted by section 2.01 (1).
(2) Nothing in this chapter, or in any rule, order, or regulation
adopted pursuant thereto, shall be construed to affect the right of any
person engaged in the occupation of agriculture, floriculture, or hor-
ticulture to alter the topography of any tract of land for purposes
consistent with the practice of such occupation, provided, however,
that such alteration shall not be for the sole or predominant purpose
of impounding or obstructing surface waters.
(3) All rights and restrictions set forth in this section shall be
enforced by the governing board, and nothing contained herein shall
be construed to establish a basis for a cause of action for private
litigants.

4.03 Headgates, Valves, and Measuring Devices
(1) The owner of any dam, impoundment, reservoir, appurtenant
works, or works, by means of which water is diverted from or dis-
charged into the waters of the state, shall install and maintain a
substantial and serviceable headgate or valve at the point where the
water is diverted or discharged, and shall install a measuring device
which meets the requirements and specifications published by the
governing board at the point designated by the governing board for
measuring the water discharged or diverted.
(2) If any owner shall not have constructed or installed such head-
gate, valve, or measuring device within sixty (60) days after the
governing board has ordered its construction, the governing board
shall have constructed or installed such headgate, valve, or measuring
device, and the costs of installing the headgate, valve, or measuring
device shall be a lien against the owner's land upon which such
installation takes place until the governing board is reimbursed in full.
(3) No person shall alter or tamper with a measuring device so as
to cause it to register other than the actual amount of water diverted,
discharged, or taken. Violation of this subsection shall be a misde-
meanor, punishable under section 1.25 of this code.
(4) Such headgates, valves, and measuring devices shall be subject
to the inspections provided in section 4.07 of this code.

4.04 Permits for Construction or Alterations
(1) Except for the exemptions set forth in section 4.02, no person
shall construct or alter a dam, impoundment, reservoir, work, or ap-
purtenant work, other than in the course of normal maintenance,








CHAPTER 4


without first obtaining a permit from the governing board. The gov-
erning board may impose such reasonable conditions as are necessary
to assure that the construction or alteration of such dam, impound-
ment, reservoir, work, or appurtenant work will not be inconsistent
with the overall objectives of the State Water Plan and will not be
harmful to the water resources of the district. Nothing in this section
shall be construed to be inconsistent with the provisions of chapter 2
or chapter 5 of this code.
(2) A person proposing to construct or alter a dam, impound-
ment, reservoir, work, or appurtenant work shall apply to the gov-
erning board for a permit authorizing such construction or alteration.
The application shall contain the following:
(a) name and address of the applicant;
(b) name and address of the owner or owners of the land upon
which the works are to be constructed and a legal description of
such land;
(c) location of the work;
(d) engineering drawings showing the detailed plans of construc-
tion;
(e) detailed specifications of construction;
(f) name and address of the person who prepared the plans and
specifications for construction;
(g) name and address of the person who will construct the
proposed work;
(h) general purpose of the proposed work; and
(i) such other information as the governing board may require.
(3) Notice of all applications for permits under this section shall
be published as provided in section 1.19 of this code. The notice
shall contain the name and address of the applicant (in the case of
a corporation, the address of its principal business office), the date of
filing, the date set for a hearing if any, the source of the water to be
contained, the quantity of water to be contained, the use to be made
of the water and any limitation thereon, and such other information
as the governing board may deem necessary.
(4) The notice provided for in subsection (3) above shall state
that written objections to the proposed permit may be filed with the
governing board by a specified date. The governing board, at its
discretion, may request further information from either applicant or
objectors, and a reasonable time shall be allowed for such responses.
(5) If no substantial objection to the application is received, the
governing board, after proper investigation by its staff, may at its








A MODEL WATER CODE


discretion approve the application without a hearing. Otherwise, the
governing board shall set a time for a hearing under section 1.21.

4.05 Permits for Maintenance or Operation
(1) Except for the exemptions set forth in section 4.02 of this
code, no person shall maintain or operate a dam, impoundment, reser-
voir, work, or appurtenant work without first obtaining a permit
from the governing board. The governing board may impose such
reasonable conditions as are necessary to assure that the operation or
maintenance of such dam, impoundment, reservoir, appurtenant work,
or work will not be inconsistent with the overall objectives of the
State Water Plan and will not be harmful to the water resources of
the district. Nothing in this section shall be construed to be incon-
sistent with the provisions of chapter 2 or chapter 5 of this code.
(2) Except as otherwise indicated in sections 4.08 and 4.09, a
permit issued by the governing board for the maintenance and opera-
tion of a dam, impoundment, reservoir, work, or appurtenant work
shall be permanent, and the sale or conveyance of such dam, im-
poundment, reservoir, work, or appurtenant work or the land on which
the same is located shall in no way affect the validity of the permit.

4.06 Completion Report
Within thirty (30) days after the completion of construction or
alteration of any dam, impoundment, reservoir, work, or appurtenant
work, the permitted shall file a written statement of completion with
the governing board. The governing board shall designate the form
of such statement and such information as it shall require.

4.07 Inspections
(1) During the construction or alteration of any dam, impound-
ment, reservoir, work, or appurtenant work, the governing board shall
make at its expense such periodic inspections as it deems necessary
to insure conformity with the approved plans and specifications in-
cluded in the permit.
(2) If during construction or alteration the governing board finds
that the work is not being done in accordance with the approved plans
and specifications as indicated in the permit, it shall give the permitted
written notice stating with which particulars of the approved plans and
specifications the construction is not in compliance and shall order
immediate compliance with such plans and specifications. Failure to








CHAPTER 4


act in accordance with the orders of the governing board after receipt
in accordance with section 4.09.
(3) Upon completion of the work the governing board shall make
of written notice shall result in the initiation of revocation proceedings
periodic inspections, not less than annually, of dams, impoundments,
reservoirs, works, and appurtenant works as it deems necessary to
protect the public health and safety and the water resources of the
state. Section 1.17 (2) of this code concerning right of entry is fully
applicable to this subsection.

4.08 Abandonment
(1) Any owner of any dam, impoundment, reservoir, work, or
appurtenant work wishing to abandon or remove such work shall first
obtain a permit to do so from the governing board.
(2) Where any dam, impoundment, reservoir, work, or appurte-
nant work is not owned or controlled by the state or any of its
agencies and is not used or maintained under the authority of the
owner for a period of three (3) years, it shall be presumed that the
owner has abandoned such dam, impoundment, reservoir, work, or
appurtenant work and the site thereof, and has dedicated the same
to the district.
(3) The title of the district to any such dam, impoundment, reser-
voir, work, or appurtenant work may be established and determined
in the court appointed by statute to determine the title to real estate.

4.09 Revocation and Modification of Permits
The governing board may revoke or modify a permit at any time
if it determines that a dam, impoundment, reservoir, work, or appur-
tenant work has become a danger to the public health or safety
or if its operation has become inconsistent with the objectives of the
State Water Plan. Upon such revocation or modification, the governing
board shall give written notification to the permitted. No permit shall
be revoked or modified before the affected party is afforded an op-
portunity for a hearing before the governing board in accordance with
section 1.21 of this code. If the governing board feels that the danger
to the public is imminent, however, it may temporarily restrain the
construction, alteration, or operation of the works until the hearing
is concluded, or may take such action as is necessary under section
4.12 of this chapter.

4.10 Abatement
Any dam, impoundment, reservoir, work, or appurtenant work








A MODEL WATER CODE


which violates the laws of this state or which violates the standards
of the governing board shall be declared a public nuisance. The
operation of such dam, impoundment, reservoir, appurtenant work,
or work may be enjoined by suit by the state or one of its agencies,
or by a private citizen. The governing board shall be a necessary
party to any such suit. Nothing in this section shall be construed to
conflict with the provisions of section 4.09 of this chapter, pertaining
to the revocation powers of the governing board.
4.11 Remedial Measures
Upon completion of its inspection the governing board shall deter-
mine what alterations and repairs are necessary and order that such
repairs and alterations shall be made within a reasonable time. If
such landowner shall fail to make such repairs and alterations within
the allotted time, the governing board may, at its discretion, cause
such alterations and repairs to be made. The cost of such repairs shall
be a lien against the property of such landowner until the governing
board is reimbursed, with reasonable interest and attorney's fees, for
its costs. Said lien may be enforced in a civil court of competent
jurisdiction.
4.12 Emergency Measures
(1) The governing board shall immediately employ any remedial
means to protect life and property if either:
(a) the condition of any dam, impoundment, reservoir, work, or
appurtenant work is so dangerous to the safety of life or property
as not to permit time for the issuance and enforcement of an order
relative to maintenance or operation, or
(b) passing or imminent floods threaten the safety of any dam
or reservoir.
(2) In applying the emergency measures provided for in this sec-
tion, the governing board may in an emergency do any of the fol-
lowing:
(a) lower the water level by releasing water from any impound-
ment or reservoir;
(b) completely empty the impoundment or reservoir; or
(c) take such other steps as may be essential to safeguard life
and property.
(3) The governing board shall continue in full charge and control
of such dam, impoundment, or reservoir, and its appurtenant works,
until they are rendered safe or the emergency occasioning the action
has ceased.









CHAPTER 5


4.13 Immunity from Liability
(1) No action shall be brought against the state, or any of its
agencies, or any agents or employees of the state, for the recovery of
damages caused by the partial or total failure of any dam, impound-
ment, reservoir, work, or appurtenant work upon the ground that the
state is liable by virtue of any of the following:
(a) approval of the permit for construction or alteration;
(b) the issuance or enforcement of orders relative to the main-
tenance or operation;
(c) control and regulation of the dam, impoundment, reservoir,
work, or appurtenant work; or
(d) measures taken to protect against failure during emergency.

4.14 Applicability to Existing Works
(1) Any person owning or operating a dam, impoundment, reser-
voir, work, or appurtenant work shall register said work with the
governing board within which district the work is located. Registration
shall be on the forms provided by the governing board.
(2) All provisions of this chapter shall apply to all dams, impound-
ments, reservoirs, works, or appurtenant works in existence at the
time of its effective date.




Chapter 5


5.01 Definitions
When appearing in this code or in any regulation adopted pursuant
thereto, the following words shall mean:
(1) Water quality-Chemical, physical, biological, bacteriological,
radiological, and other properties and characteristics of water which
affect its use.
(2) Impairment of water quality-Any act or condition, including,
but not limited to, pollution, which temporarily or permanently re-
duces, or threatens to reduce, water quality below the level established
by the state board pursuant to this code.
(3) Pollution-Any alteration of water quality, including change
of temperature, taste, color, turbidity, or odor of the waters, or the
addition of liquid, solid, radioactive, gaseous, or other substances to








A MODEL WATER CODE


the waters, or the removal of such substances from the waters, which
will render or is likely to render the waters harmful to the public
health, safety, or welfare, industrial, agricultural, recreational, or other
lawful uses, or to animals, birds, or aquatic life.
(4) Wastes-Sewage, industrial wastes, and all other wastes, liquid,
gaseous, solid, or radioactive, which may affect water quality.
(5) Sewage-Any and all waste substance, liquid or solid, asso-
ciated with human habitation, or which contains or may be con-
taminated with human or animal excreta or excrement, offal, or any
feculent matter.
(6) Industrial waste-Any and all solid, liquid, or gaseous sub-
stance, excluding sewage, resulting from any producing, manufac-
turing, or processing operations of whatever nature or from the
development of any natural resource.
(7) Other waste-Garbage, municipal refuse, chemicals, and all
other substances, which are not sewage or industrial waste, which may
pollute the waters of the state.
(8) Sewage system-Pipelines or conduits, pumping stations, and
force mains, and all other structures, devices, appurtenances, and
facilities used for conducting wastes to an ultimate point for treatment
or disposal.
(9) Treatment works-Any plant or other works used for the pur-
pose of treating, stabilizing, or holding wastes.
(10) Disposal system-Any system for disposing of wastes, either
by surface or underground methods, including sewage systems, treat-
ment works, disposal wells, and other systems.
(11) Outlet-The terminus of a sewer system, or the point of
emergence of any sewage, industrial waste, or other wastes or the
effluent therefrom, into the waters of the state.

5.02 Exception of Atmospheric Moisture
No provision of this chapter shall apply to moisture contained in
the atmosphere.

5.03 Additional Powers and Duties of the State Board
In addition to other powers and duties delegated to it under this
code, the state board shall:
(1) exercise general supervision over the administration and en-
forcement of this chapter within the state and all regulations and
orders promulgated thereunder, and adopt, modify, repeal, promul-








CHAPTER 5


gate, and enforce such regulations implementing or effectuating its
powers and duties under this code as it may deem necessary;
(2) administer any program of research in water pollution or
water quality control, accept funds from the United States or any
person to that end, and support programs of research by other state
agencies, universities, industries, and private persons;
(3) collect and disseminate information relating to water pollution
and the prevention, control, and abatement thereof;
(4) cooperate with other state or interstate water pollution control
agencies in establishing standards, objectives, or criteria for quality of
interstate waters originating in or flowing through the state; and
(5) administer any program of financial assistance for water
pollution or water quality control and accept funds from the United
States or any person to that end.
The state board is designated as the water pollution control agency
of the state for all purposes stated in the Federal Water Pollution
Control Act.

5.04 Water Quality Plan
(1) The state water quality plan shall consist of the following:
(a) water quality standards for all waters of the state, such
standards to consist of receiving water standards and, where ap-
plicable, effluent standards;
(b) water quality objectives for planning and operation of water
resource development projects for water quality control activities,
and for the improvement of existing water quality;
(c) other principles and guidelines deemed essential by the
state board for water quality control; and
(d) a program of implementation for those waters which do not
presently meet established water quality standards.
(2) The state water quality plan shall be periodically reviewed
and may be revised.
(3) During the process of formulating or revising the state water
quality plan, the state board shall consult with and carefully evaluate
the recommendations of concerned federal, state, and local agencies,
particularly the governing boards of the various water management
districts.
(4) The state board shall not adopt or modify the state water
quality plan or any portion thereof until a public hearing is held. At
least ninety (90) days in advance of such hearing the state board
shall notify any affected governing boards, and shall give notice of








A MODEL WATER CODE


such hearing by publication within the affected region pursuant to
section 1.09 of this code.

5.05 Water Quality Standards
(1) It is recognized that, due to variable factors, no single standard
of quality and purity of the waters is applicable to all waters of the
state or to different segments of the same waters.
(2) The state board shall group all waters of the state into classes
and adopt water quality standards for each class. Such classification
shall be made in accordance with considerations of best usage in the
interests of the public.
(3) In preparing the classification of waters and the standards of
purity and quality above mentioned, the state board shall give con-
sideration to:
(a) the size, depth, surface area covered, volume, direction and
rate of flow, stream gradient, and temperature of the water;
(b) the character of the land bordering, overlying, or underlying
the waters of the state and its peculiar suitability for particular uses,
and with a view to conserving the value of said land, encouraging the
most appropriate use of the same for economic, residential, agricul-
tural, industrial, or recreational purposes;
(c) the past, present, and potential uses of the waters for
transportation, domestic and industrial consumption, bathing, fishing
and fish culture, fire prevention, sewage disposal, industrial and other
wastes, and other possible uses; and
(d) the extent of present defilement or fouling of the waters
which has already occurred or resulted from past discharge therein.
(4) The water quality plan adopted by the state board shall con-
tain standards of quality and purity for each of the various classes in
accordance with the best interests of the public.
(5) In preparing such standards, the state board shall give con-
sideration to:
(a) the extent, if any, to which floating solids may be permitted
in the waters;
(b) the extent, if any, to which suspended solids, settleable
solids, colloids, or a combination of solids with other substances
suspended in water may be permitted;
(c) the extent, if any, to which organisms or virus may be
permitted in the waters;
(d) the extent of the oxygen demand which may be permitted
in the receiving waters;








CHAPTER 5


(e) the extent, if any, to which the temperature of the waters
may be altered;
(f) the minimum dissolved oxygen content of the waters that
shall be maintained;
(g) the limits of other physical, chemical, biological, or radiolog-
ical properties that may be necessary for preserving the quality and
purity of the waters of the state;
(h) the extent to which any substance must be excluded from
the water for the protection and preservation of public health; and
(i) the value of stability and the public's right to rely upon
standards as adopted for a reasonable period of time to permit
institutions, municipalities, commerce, industries, and others to plan,
schedule, finance, and operate improvements in an orderly and prac-
tical manner.
(6) The state board may impose such effluent standards as it
deems necessary to maintain or improve water quality.
(7) The state board, by regulation, may modify classifications and
upgrade the standards of quality.

5.06 Additional Powers and Duties of the Governing Board
In addition to other powers and duties delegated to them by this
code, the governing boards of the water management districts shall:
(1) issue, revoke, modify, or deny, in accordance with the re-
quirements of the state board, permits for the discharge or removal
of any substance into the waters of the state and for the installation,
modification, or operation of disposal systems or any part thereof;
(2) require the prior submission of plans, specifications, and other
data relative to the construction of disposal systems or any part thereof
in connection with the issuance of such permits or approvals as are
required by this code;
(3) in accordance with the state water quality plan, issue, modify,
or revoke orders (a) prohibiting or abating discharges or removals
of various substances into the waters of the state, or (b) requiring
the construction of new disposal systems or any parts thereof or the
modification, extension, or alteration of existing disposal systems or
any parts thereof, or the adoption of other remedial measures to
maintain or upgrade water quality;
(4) require proper maintenance and operation of disposal systems;
(5) adopt, modify, repeal, and promulgate all necessary regulations
for the purpose of controlling the discharge of sewage, other wastes,
and other substances from any boat; and








A MODEL WATER CODE


(6) exercise all incidental powers necessary to carry out the ob-
jectives of this code.

5.07 Permits for New Outlets, Disposal Systems, and Treatment
Works
(1) No person shall without having obtained a written permit from
the governing board:
(a) begin construction of any new outlet for the discharge of
sewage, industrial wastes, or other wastes, or the effluent therefrom,
into the waters of the state, including coastal waters;
(b) begin construction of any new disposal system for the dis-
charge of sewage, industrial wastes, or other wastes, or the effluent
therefrom, into the waters of the state, including coastal waters, or
make any change in, addition to, or extension of any existing disposal
system or part thereof which would materially alter the method, the
volume, or the effect of treating or disposing of the sewage, industrial
wastes, or other wastes; or
(c) begin construction of any new treatment work for the treat-
ment of sewage, industrial waste, or other wastes, or the effluent
therefrom, into the waters of the state, including coastal waters, or
make any change in, addition to, or extension of any existing treat-
ment plant or part thereof which would materially alter the method,
volume, or effect of treating said wastes.
(2) No permit for any new outlet or the construction of a new
disposal system or the modification or extension of an existing dis-
posal system shall be issued by the governing board until the plans
have first been submitted to and approved by it.

5.08 Discharge Permits
(1) (a) No person shall discharge any substance into the waters
of the state which may affect the quality of waters of the state without
first obtaining a permit from the governing board of the area affected
by such discharge.
(b) No person who is a citizen, domiciliary, or political agency
or entity of this state shall discharge any substance into waters out-
side of the boundaries of the state without first obtaining a permit from
the governing board of the area affected by such discharge.
(c) The state board may authorize the governing boards to
exempt certain types of discharges from the requirements of this sub-
section if it is clearly established that there will be no significant
impairment of water quality from such discharges.








CHAPTER 5


(2) The permit may be granted only if the governing board deter-
mines that such discharge will not lower water quality in the affected
water below the standards set for that class of water pursuant to the
state water quality plan. Permits may also be denied if the governing
board determines that such discharge would not be consistent with
water quality improvement objectives established for the affected
water pursuant to the state water quality plan.
(3) The procedure for permit applications shall be governed by
the provisions of section 1.19 of this code. All information required
by such form must be furnished and, when information filed by any
person pursuant to this section is not adequate in the judgment of the
governing board, the board may require such person to supply such
additional information as it deems necessary.
(4) No discharge into the waters of the state pursuant to the terms
of a permit issued under this section shall create a vested right to
continue such discharge. All discharges into waters of the state are
privileges, not rights.
(5) Permits may be modified, suspended, or revoked by the gov-
erning board after a hearing pursuant to section 5.12 of this code:
(a) for any material false statement in the permit application;
(b) for willful or negligent violation of the conditions of the
permit;
(c) for refusal to allow inspection of facilities as provided under
section 5.10 of this code;
(d) after a determination by the governing board that the water
quality of the affected water has fallen below the water quality
standards established by the state board pursuant to the water quality
plan or any subsequent modification thereof;
(e) in order to protect the public health, safety, or welfare; or
(f) to protect any domestic consumptive uses or water uses
exercised pursuant to the provisions of chapter 2 of this code.
(6) Discharge permits shall be issued for a term of ten (10) years.
Renewals shall be treated in the same manner as initial applications.
(7) A person discharging any substance into the waters of the
state on the effective date of this code who does not qualify or has
been denied a permit under this section may apply to the governing
board for a temporary permit. No such temporary permit shall be
granted by the governing board unless it affirmatively finds all of the
following:
(a) the proposed discharge does not qualify for a permit under
this section;








A MODEL WATER CODE


(b) the applicant is constructing, installing, or placing into
operation, or has submitted plans and reasonable schedules for the
construction, installation, or operation of, an approved pollution
abatement facility or alternate waste disposal system which will qualify
the applicant for a permit under this section, or that the applicant
has a waste for which no feasible and acceptable method of treatment
or disposal is known or recognized but he is making a bona fide effort
through research and other means to discover and implement such a
method;
(c) the denial of a temporary permit would work an extreme
hardship upon the applicant;
(d) the granting of a temporary permit will result in substantial
public benefit; and
(e) the discharge will not be unreasonably destructive to the
quality of the receiving waters.
A temporary permit shall be reviewable annually or within a lesser
period of time as the governing board may specify in the temporary
permit, and it must be affirmatively shown that all of the requirements
for the initial issuance of the temporary permit are still being met by
the holder thereof.

5.09 Pollution of Underground Waters: Permits
(1) No person shall use any cavity, sink, or driven or drilled well
for the purpose of draining any surface water or discharging any
sewage, industrial, or other wastes into the underground waters of the
state without first obtaining a discharge permit from the governing
board under the provisions of section 5.08 of this code.
(2) This section shall not limit the exercise by the state board of
health of any powers delegated to it by statute over the underground
waters of the state.

5.10 Inspections
(1) The governing board shall have the power to enter at reason-
able times upon any private or public property other than dwelling
places for the purpose of inspecting and investigating conditions
relating to water quality.
(2) Such investigation shall include such engineering studies, bac-
teriological, biological, and chemical analyses of the water, and
location and character of the source or sources of contamination as
may be necessary.
(3) The governing board may require the maintenance of records








CHAPTER 5


relating to the operation of disposal systems, and any authorized
representative of the governing board may examine and copy any such
records or memoranda pertaining to the operation of disposal systems.
Copies of such records shall be submitted to the state board upon
request.

5.11 Fees
The state board may establish fees for the issuance and renewal of
any permits established under this chapter. All funds collected under
this provision shall be credited to the water development account.

5.12 Administrative Enforcement
(1) If the governing board has reason to believe that a violation
of any provision of this chapter has occurred, it shall serve written
notice upon the violator. The notice shall specify the provision of
the code or regulation alleged to be violated, and the facts alleged
to constitute a violation thereof, and may include an order that cor-
rective action be taken within a reasonable time.
(2) If, after a hearing under the provisions of section 1.21, the
governing board finds that a violation has occurred, it shall affirm or
modify its order previously issued, or issue an appropriate order or
orders for the prevention, abatement, or control of the condition
involved or for the taking of such other corrective action as may be
appropriate.
(3) Any order issued under subsection (1) above shall become
effective after ten (10) days unless a hearing is requested. However,
any order issued after a hearing may prescribe the date by which the
violation shall cease by fixing reasonable timetables for necessary
action.
(4) If, after a hearing, the governing board finds that no violation
is occurring, it shall rescind the order issued under subsection (1)
above.
(5) The governing board may enforce its orders by injunction pur-
suant to the provisions of section 5.14 of this code.

5.13 Summary Abatement
(1) The governing board may order any person to abate, terminate,
modify, or decrease pollution which constitutes, or threatens to be-
come, an immediate and serious hazard to public health, safety, and
welfare, or a serious and immediate hazard to fish or wildlife.
(2) Orders issued under this section shall be final and conclusive








A MODEL WATER CODE


unless the affected person requests a hearing pursuant to section 1.21
of this code within ten (10) days after receipt of a copy of the order.
(3) If a hearing is requested, the orders of the governing board
shall not be stayed during pendency of the hearing or any review
thereof.
5.14 Injunctions
(1) Whenever it shall appear that any person, as defined in section
1.03 (5) of the code, is causing or threatens to cause an impairment
of water quality in violation of any order of the governing board, the
governing board may institute proceedings for injunctive relief from
the [appropriate] court to prevent the continuance of such action.
(2) In a petition for injunctive relief, any previous findings of
the governing board after due notice and hearing shall be prima-facie
evidence of the fact or facts found therein. The court shall grant the
injunction without the necessity of showing a lack of adequate remedy
at law upon a showing by the governing board that such person is
violating or is about to violate the provisions of this code or is violating
or about to violate any order or determination of the governing board
with respect to this code.
(3) In such suit, the governing board may obtain injunctions,
prohibitory and mandatory, including temporary restraining orders
and temporary injunctions as the facts may warrant.
(4) No provision of section 1.22 shall apply to this section.
5.15 Civil Penalties
(1) Whoever causes pollution of the waters of the state which
results in harm to fish, or fish food, or which results in other
damage, is liable to the state for such damages and the reasonable
costs and expenses of the state incurred in tracing the source of the
discharge and in restoring the waters to their former condition.
(2) Upon the request of the state board or any state agency or the
alleged violator, the governing board may consider and assess these
damages. If the amount so assessed is not paid within ninety (90)
days, the governing board may institute civil action in the [appro-
priate] court for a judicial determination of liability and damages.
(3) All funds received by the state board pursuant to this section
shall be deposited in the water resources development account.
(4) Nothing herein shall give the governing board the right to
bring an action on behalf of a private person. Nothing herein shall
prohibit the governing board from proceeding forthwith to obtain a
judicial determination of the liability and damages.








CHAPTER 6


5.16 Local Jurisdiction: Conflicts
No provision of this chapter or any ruling of the state board or
a governing board is a limitation:
(1) on the power of any local governmental agency to adopt and
enforce additional regulations, not in conflict therewith, imposing
further conditions, restrictions, or limitations with respect to the
disposal of waste or any other activity which might impair water
quality;
(2) on the power of any state or local governmental agency to
declare, prohibit, and abate nuisances;
(3) on the power of a state agency in the enforcement or adminis-
tration of any provision of law which it is specifically permitted or
required to enforce or administer; or
(4) on the right of any person to maintain at any time any appro-
priate action for relief against pollution under the common law.




Chapter 6


6.01 Definitions
When appearing in this chapter or in any rule, order, or regulation
adopted pursuant thereto, the following words shall mean:
(1) Weather modification-Initiating, changing, or controlling, or
attempting to initiate, change, or control, the composition, behavior,
or dynamics of the atmosphere.
(2) Experimentation and research-Theoretical analysis and ex-
ploration, and the extension of investigative findings and theories of a
scientific or technical nature into practical application for demonstra-
tive purposes, including, but not restricted to, the production and
testing of models, devices, equipment, materials, and processes.
(3) Operation-The performance of weather modification activities
entered into for the purpose of producing, or attempting to produce,
a certain modifying effect within one geographical area over one
continuing time interval.

6.02 Weather Modification Division: Selection of Director
The Weather Modification Division of the Water Resources Board
shall be headed by a director who is a member of, or qualified for









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professional membership in, the American Meteorological Society, or
the Weather Modification Association, or who has at least two years'
experience in the field of weather modification. First preference in the
selection of the director shall be given to individuals possessing both
membership and experience qualifications.

56.03 Weather Modification: Powers and Duties of the State Board
In addition to powers granted it by section 1.06 or other acts
authorized by law, the state board may:
(1) issue a license to any applicant who complies with the require-
ments of section 6.07, and issue a permit to any applicant who
complies with the requirements of sections 6.08 and 6.12;
(2) establish advisory committees to advise and make recom-
mendations to the state board and director concerning legislation,
policies, administration, research, and other matters relative to weather
modification;
(3) set standards for financial responsibility, subject to the limita-
tions imposed by section 6.08;
(4) set standards of care which may be utilized in the judicial
determination of negligence liability for weather modification opera-
tions, as provided by section 6.16 (3);
(5) make determinations of those operations which constitute
extraordinary weather modification operations, and establish criteria
for such determinations;
(6) cooperate with public or private agencies, with the federal
government and its agents and contractors, and with other states in
the conduct of weather modification operations;
(7) cause to be made, by inspectors appointed for that purpose,
an examination and inspection of any weather modification operation,
such examination or inspection to be governed by the provisions of
section 1.06 (3);
(8) subject to available funds, enter into cooperative agreements
or contracts with the various counties, cities, water management
districts, or any person for conducting weather modification opera-
tions.

6.04 Promotion of Research and Experimental Activities Relating to
Weather Modification
The state board shall exercise its powers in such a manner as
to promote the continued conduct of research and experimentation in
the fields specified below by persons or private or public institutions








CHAPTER 6


and to assist in the acquisition of an expanding fund of theoretical
and practical knowledge in such fields. To this end the state board
may conduct, and make arrangements including contracts and agree-
ments for the conduct of, research and experimentation activities
relating to:
(1) the theory and development of methods of weather modifica-
tion;
(2) utilization of weather modification for agricultural, industrial,
commercial, municipal, or domestic purposes;
(3) the protection of life and property during weather modifica-
tion research or operations.

6.05 License and Permit Required for Weather Modification
Activities
Except as provided in section 6.06, no person shall engage in
activities for weather modification except under and in accordance
with a license and a permit issued by the state board.

6.06 Exemptions from License and Permit Requirements
(1) The state board, to the extent it deems practical, may provide
by regulation for exemption from the license requirements of this code:
(a) laboratory research and experiments; and
(b) activities normally engaged in for purposes other than those
of modifying the weather.
(2) The state board, to the extent it deems practical, may provide
by regulation for exemption from the permit requirements of this code:
(a) laboratory research and experiments;
(b) activities of an emergency character for protection against
fire, frost, sleet, fog, wind, or rain; and
(c) activities normally engaged in for purposes other than those
of modifying the weather.
(3) Activities, research, or experiments exempted under sections
6.06 (2) (a) and (b) shall be required to comply with the broadcast
provisions of section 6.11 (2), the records and reporting provisions
of section 6.12, and the evaluation provisions of section 6.13.

6.07 Weather Modification Licenses
(1) If public convenience, interest, or necessity will be served
thereby, licenses to engage in weather modification shall be issued to
applicants who pay the license fee required and who demonstrate, to








A MODEL WATER CODE


the satisfaction of the state board, competence in the field of meteor-
ology reasonably necessary to engage in weather modification. Such
competence may be demonstrated through certification by the Weather
Modification Association. If the applicant is an organization, these
requirements shall be met by the individual or individuals who are
to be in control or in charge of the applicant's operation.
(2) The state board shall issue licenses in accordance with such
procedures and subject to such conditions as may by regulation be
established. The state board, by regulation, shall establish the license
fee, which shall not exceed one hundred dollars ($100).
(3) No license shall be construed to create any right beyond the
terms, conditions, and periods of the license.
(4) Each license shall be issued for five (5) years. Upon the ex-
piration of any license, upon application therefore, a renewal of such
license may be granted from time to time for a term not to exceed
five (5) years, if the state board finds that public interest, convenience,
or necessity would be served thereby and if the license fee is paid.
Section 6.07 (1) criteria applicable to the original application are
equally applicable toward renewal. No renewal of an existing license
shall be granted more than thirty (30) days prior to the expiration
of the original license.
(5) No license, or any rights thereunder, shall be transferred, as-
signed, or disposed of in any manner, voluntarily or involuntarily,
directly or indirectly, or by transfer of control of any corporation
holding such license, to any person except upon application to the
state board and upon finding by the state board that the public interest,
convenience, and necessity will be served thereby. In acting thereon
the state board shall consider whether the public interest, convenience,
and necessity might be served by the transfer, assignment, or disposal
of the license to a person other than the proposed transferee or
assignee.
(6) Proceedings concerning the issuance of licenses shall be con-
ducted in accordance with the provisions of section 1.10.

6.08 Weather Modification Permits
(1) The state board may issue permits in accordance with such
procedures and subject to such conditions as it may by regulation
establish to effectuate the provisions of this code. The state board
shall not grant any permit unless:
(a) It finds that public interest, convenience, and necessity
would be served thereby.








CHAPTER 6


(b) The applicant is licensed pursuant to this code.
(c) A sufficient notice of intention is published and proof of
publication is filed as required by section 6.11.
(d) The applicant files with the state board proof of ability
to respond in damages for liability on account of accidents arising
out of the weather modification operations to be conducted by him
in an amount sufficient to comply with standards established by the
state board, but in no case less than fifty thousand dollars ($50,000)
for bodily injury to or death of one person resulting from any one
incident, and five hundred thousand dollars ($500,000) because of
injury to or destruction of property of others resulting from any one
incident. Proof of financial responsibility may be given by filing with
the state board a certificate of insurance or a bond in the required
amount.
(e) The appropriate fee is paid.
(f) The operation based on the permit is in conformity with the
State Water Plan.
(2) A separate permit shall be issued for each operation. These
permits shall be effective for one (1) year from the date of issuance.
The state board normally shall not issue more than one permit for
similar activities in any given geographic area.
(3) Permits may be renewed by filing an application with the state
board, at least one (1) month before, but not prior to two (2) months
before, the expiration of the existing permit. The application for
renewal must re-establish compliance with the requirements of this
section. However, no fee shall be paid for the renewal of a permit.
(4) No permit shall be construed to create any right beyond the
terms, conditions, and periods of the permit.
(5) No permit, or any rights thereunder, shall be transferred, as-
signed, or disposed of in any manner, voluntarily or involuntarily,
directly or indirectly, or by transfer of control of any corporation
holding such license, to any person.
(6) The state board, by regulation, shall establish a schedule of
fees to accompany the permit application. In preparing this schedule,
the state board shall insure that the fee to be paid by each applicant is
not less than 1 per cent of the estimated cost of such operation, such
cost to be estimated by the state board from the evidence available
to it.
(7) Proceedings concerning the issuance of permits, or modifica-
tions of their terms, shall be conducted in accordance with the provi-
sions of section 1.10.








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6.09 Suspension or Revocation of Licenses and Permits
(1) The state board may suspend or revoke any license or permit
if it finds that the licensee no longer possesses the qualifications neces-
sary for the issuance of a new license or permit, or if it finds that the
licensee has violated any of the provisions of this code. The permit or
license may be temporarily suspended during investigations of sus-
pected violations.
(2) Suspensions, including temporary suspensions, or revocations
of licenses or permits shall be subject to judicial review as orders of the
state board, in accordance with the provisions of section 1.11. The
suspension or revocation shall remain in effect throughout such litiga-
tion.
6.10 Notice of Intention
(1) Prior to undertaking any weather modification activities the
licensee shall file with the state board and the appropriate water
management district or districts and also cause to be published or
broadcast a notice of intention. The licensee, if a permit is issued,
shall confine the permitted operation substantially within the time and
area limits set forth in the notice of intention, unless modified by the
state board, and his activities also shall substantially conform to any
conditions imposed by the state board upon the issuance of the permit
or to the terms of the permit as modified after issuance.
(2) The notice of intention shall set forth at least all of the
following:
(a) the name and address of the licensee;
(b) the nature and object of the intended operation and the
person or organization on whose behalf it is to be conducted;
(c) the area in which and the approximate time during which
the operation will be conducted;
(d) the area which will be affected by the operation as nearly
as the same may be determined in advance; and
(e) the materials and methods to be used in conducting the
operation.
(3) When practical, the state board may require that section 6.10
(2) (d) determinations be based on climatic models and mathematical
simulation.
6.11 Publication or Broadcasting of Notice of Intention; Filing of
Proof of Publication or Broadcast
(1) The licensee shall cause the notice of intention provided for
in section 6.10 to be published at least once a week for two (2) con-








CHAPTER 6


secutive weeks in a newspaper having general circulation within any
county wherein the operation is to be conducted; if the affected area
is located in or includes a county or counties other than the one in
which the operation is to be conducted, then such notice shall also
be published in a like manner in a newspaper having general circula-
tion within the affected counties.
(2) Where any weather modification effort would require imme-
diate implementation, the state board may waive the publication
requirement and require that the licensee cause a summary of facts
drawn from the notice of intention to be broadcast at least twice a
day for two (2) days over a radio or television station capable of
reception within the affected area. If no single station broadcasts
throughout the entire affected area, the licensee shall broadcast notices
of intention over sufficient stations to encompass the entire area.
(3) Proof of publication or broadcast shall be filed by the licensee
with the state board within five (5) days from the date of the last
publication or broadcast of notice. Proof of publication shall be by
copy of the notice as published, attached to and made a part of the
affidavit of the publisher of the newspaper publishing the notice.
Proof of broadcast shall be by a copy of the broadcast script, attached
to and made a part of the affidavit of the owner or manager of the
station broadcasting the notice.

6.12 Records and Reports of Licensees
(1) Each licensee shall keep and maintain a record of all opera-
tions conducted by him pursuant to his license and each permit-
showing the method employed, the type of equipment used, materials
and amounts thereof used, the times and places of operation of the
equipment, the name and post office address of each individual par-
ticipating or assisting in the operation other than the licensee, and
such other general information as may be required by the state board
-and shall report the same to the state board at the time and in the
manner required.
(2) The state board shall require written reports in such manner
as it provides, not inconsistent with the provisions of this code,
covering each operation for which a permit is issued. It shall also
require written reports from such organizations as are exempt from
the license and permit provisions of this code.
(3) All information on an operation shall be submitted to the
state board before the information on such operation is released to
the public.








A MODEL WATER CODE


(4) The reports of all licensees shall be available for public
examination.

6.13 Evaluation Statements
Each licensee shall prepare and maintain an evaluation statement
for each operation; within ninety (90) days after the conclusion of
any operation, he shall file such evaluation with the state board. Each
three (3) months, during the operation of any project which has not
been completed, each licensee shall file a report evaluating the
activities of the preceding three (3) months.

6.14 Annual Evaluation Reports
Based upon its official records and data submitted to it by reason
of sections 6.12 and 6.13, the state board annually shall cause to be
prepared a summary of all current weather modification projects in
the state, together with a general evaluation of them.

6.15 Administrative Procedure Waiver
(1) Where any weather modification effort would require imme-
diate implementation, the state board may waive the requirements of
the state administrative procedure act, and, except as noted herein,
the requirements imposed by sections 1.10 and 6.11 of this code.
(2) In instances of such waiver, the state board shall require
compliance with the provisions of section 6.11 (2).
(3) Any party affected by such weather modification effort, and
aggrieved by the application of this section, may seek judicial review
of the state board's order.

6.16 Liability
(1) Except as provided in sections 6.16 (2) and 6.17, in all
weather modification operations nothing in this code shall be construed
to impose or accept any liability or responsibility on the part of the
state, the state board, or any state officials or employees for any
weather modification activities of any person, or to affect in any way
any contractual, tortious, or other legal rights, duties, or liabilities
between any persons.
(2) The state, for itself and its counties, agencies, and instru-
mentalities, waives immunity for the torts of officers, employees, or
servants committed in the state in the actual performance of a
weather modification operation. The state, its counties, agencies, and








CHAPTER 6


instrumentalities shall be liable in the same manner as a private in-
dividual.
(a) No action may be brought under section 6.16 (2) where the
claim arises out of the issuance, denial, suspension, or revocation of,
or by the failure to issue, deny, suspend, or revoke, a weather modifi-
cation permit or license.
(b) Punitive damages shall not be allowed in an action brought
under section 6.16 (2).
(3) Except as provided in section 6.17, no person shall in any
way be liable for any loss or damage caused by or arising out of a
weather modification operation unless such person is negligent through
failure to adhere to the standards of care established by the state
board. Such person shall not be liable for such negligence without
proof of proximate causation of loss.
(a) The state board shall establish criteria in writing setting
forth the standards of care upon which such determinations shall
be made.
(b) These criteria shall be effective as legislative standards
unless revoked by a majority vote of both houses of the legislature
within one (1) year of their publication.
(c) Any revisions, deletions, or additions to these standards shall
be subject to the publication requirements of section 6.16 (3) (a)
and the legislative review requirements of section 6.16 (3) (b).

6.17 Extraordinary Weather Modification Operations
(1) The term "extraordinary operation" refers to any weather
modification operation which the state board determines, at the time
of permit issuance, has resulted or will probably result in substantial
damages to persons or property.
(a) The state board shall establish criteria in writing setting
forth the basis upon which such determination shall be made. Such
criteria shall be published by the Secretary of State.
(b) Prior to making an extraordinary operation determination,
the state board shall make a survey of the causes and probable extent
of damage. These surveys, even when the state board determines that
the operation does not constitute an extraordinary operation, shall be
made available to the public. Such survey, however, should not be
admissible evidence in any legal proceeding brought under section
6.16 (3) or section 6.17 (4).
(2) The term "indemnitor" means any insurer with respect to his
obligations under a policy of insurance furnished as proof of financial








A MODEL WATER CODE


protection; any licensee, contractor, or other person who is obligated
under any other form of financial protection, with respect to such
obligations; and the state board with respect to any obligation under-
taken by it in an indemnity agreement entered into pursuant to section
6.17.
(3) The state board is authorized to enter into agreements with
other indemnitors to establish coordinated procedures for the prompt
handling, investigation, and settlement of claims for extraordinary
operation liability. The state board and other indemnitors may make
payments to, or for the aid of, claimants for the purpose of providing
immediate assistance following an extraordinary operation. Such pay-
ments may be made without securing releases, shall not constitute an
admission of the liability of any person indemnified or of any in-
demnitor, and shall operate as a satisfaction to the extent thereof of
any final settlement or judgment.
(4) Any person undertaking a weather modification operation,
determined to be an extraordinary operation, is liable without proof
of fault for injuries and damages arising out of or resulting from the
extraordinary operation, other than:
(a) an injury, compensable under a state or federal workmen's
compensation act, of any employee of such person; or
(b) loss of or damage to such person's property that is used in
connection with the modification operation.
(5) Each permit issued under section 6.08 may have as a condition
of the permit a requirement that the permitted have and maintain
financial protection of such type and in such amounts as the state
board shall require in accordance with section 6.17 (6) to cover
extraordinary operation claims. Whenever such financial protection is
required, it shall be a further condition that the permitted execute
and maintain an indemnification agreement in accordance with section
6.17 (7). The state board may require, as a further condition of
issuing a permit, that an applicant waive any immunity from public
liability conferred by federal or state law.
(6) The amount of financial protection required shall be the
amount of liability insurance available from private sources, except
that the state board may establish a lesser amount on the basis of
criteria set forth in writing, which it may revise from time to time,
taking into consideration such factors as the following: (a) the cost
and terms of private insurance; (b) the type, size, and location of
the probable operations and other factors pertaining to the hazard;
and (c) the nature and purpose of the probable operations. Such








CHAPTER 6


financial protection may include private insurance, private contractual
indemnities, self insurance, other proof of financial responsibility, or
a combination of such measures.
(7) The state board shall, with respect to permits for which it
requires financial protection, agree to indemnify and hold harmless
the permitted from liability, arising from extraordinary operations,
which is in excess of the level of financial protection required of the
permitted by sections 6.17 (5) and 6.17 (6). The aggregate indemnity
for all persons indemnified shall not exceed $100,000,000 including
the reasonable costs of investigating and settling claims and defending
suits for damage. Such a contract of indemnification shall cover liability
arising out of or in connection with extraordinary operations.
(8) In administering the provisions of this section, the state board
shall use, to the maximum extent practicable, the facilities and services
of private insurance organizations, and the state board may contract
to pay a reasonable compensation for such services.
(9) The agreement of indemnification may contain such terms as
the state board deems appropriate to carry out the purposes of this
section. Such agreement shall provide that, when the state board
makes a determination that the state will probably be required to
make indemnity payments under this section, the state board may
collaborate with any person indemnified, may approve the payment
of any claim under the agreement of the indemnification, and may
appear through the attorney general on behalf of the state to settle
or approve the settlement of any such claim on a fair and reasonable
basis with due regard for the purposes of this code. Such settlement
may include reasonable expenses in connection with the claim in-
curred by the person indemnified.
(10) With respect to any extraordinary operation the state board
may incorporate provisions in indemnity agreements with permittees
and may require provisions to be incorporated in insurance policies
or contracts furnished as proof of financial protection under sections
6.17 (5) and 6.17 (6) which waive (a) any issue or defense as to
conduct of the claimant or fault of persons indemnified, (b) any issue
or defense as to charitable or governmental immunity, (c) any issue
or defense based on an "Act of God" or intervention by a third party,
and (d) any issue or defense based on any statute of limitations if
suit is instituted within three (3) years from the date on which the
claimant first knew, or reasonably could have known, of his injury or
damage and the cause thereof. The waiver of any such issue or defense
shall be effective regardless of whether such defense may otherwise








A MODEL WATER CODE


be deemed jurisdictional or relating to an element in the cause of
action. When so incorporated, such waivers shall be judicially en-
forcible in accordance with their terms by the claimant against the
person indemnified. Such waivers shall not preclude a defense based
upon a failure to take reasonable steps to mitigate damages, nor shall
such waivers apply to injury or damage to a claimant or to a claimant's
property which is intentionally sustained by the claimant or which
results from an extraordinary operation intentionally and wrongfully
caused by the claimant. The waivers authorized in this subsection
shall, as to indemnitors, be effective only with respect to those obliga-
tions set forth in the insurance policies or the contracts furnished as
proof of financial protection and in the indemnity agreements. Such
waivers shall not apply to, or prejudice the prosecution or defense of,
any claim or portion of claim which is not within the protection
afforded under the terms of insurance policies or contracts furnished
as proof of financial protection or indemnity agreements.

6.18 Acceptance of Gifts, Grants, and Appropriations: Weather
Modification Fund
(1) There is hereby established a continuing fund in the Water
Resources Development Account to be known as the Weather Modifi-
cation Fund. All weather modification license and permit fees paid
to the state board shall be deposited in such fund. This fund shall not
revert at the close of any fiscal year, but shall accumulate.
(2) The state board may, subject to any limitations otherwise im-
posed by law, receive and accept in the name of the state any weather
modification funds which may be offered or become available from
federal grants or appropriations, private gifts, donations, or bequests.
Such funds shall be deposited in the Weather Modification Fund.
(3) Legislative appropriations for administration of chapter 6 of
this code, or for weather modification operations, shall be credited to
the Weather Modification Fund.
(4) In accord with the powers granted to the state board, it may
expend the Weather Modification Fund to administer this code, to
sponsor experimentation through direct grants or contracts, and to
finance nonexperimental weather modification operations conducted
by the state board.


















COMMENTARY















Chapter 1


Administrative Structure and Operation





Drastically increased demands upon the nation's water resources are
predicted in the coming years as a result of population growth, in-
creased per capital use of water, and the progressive concentration
of the population in urban areas.
The population of the United States has grown from 76 million in
19001 to 204 million in 19702 and projections indicate that this trend
is likely to continue.3 The significant increase in average life ex-
pectancy during the twentieth century will in all probability offset the
impact of a reduced birth rate, and insure a continued net increase
in population in the foreseeable future.4 A population of 295 million
has been forecast by the year 2000.5
Per capital use of water is also increasing substantially. In 1900,
total water use in America amounted to only 40 billion gallons per
day,6 but by 1965, the figure for daily use of water had risen to
360 billion gallons.7 On a per capital basis this is an increase from
526 gallons per person in 1900 to 1,893 gallons per person in 1965.
At present growth rates this per capital figure will triple by the year
2000.8 This may be attributed in large part to the significant industrial
growth of the United States during the twentieth century. In the
period 1900-1950, industrial production increased about 700 per
cent, a figure far in excess of the population growth rate.9 Since this
1. STATISTICAL ABSTRACT OF THE UNITED STATES, U.S. DEPT. OF COMM.
BUREAU OF THE CENSUS 5, table 2 (1970).
2. Id.
3. Twice as Many in 36 Years, U.S. NEWS & WORLD REPORT 29 (November
9, 1970); STATISTICAL ABSTRACT OF THE UNITED STATES, supra note 1, at 6, table
3.
4. STATISTICAL ABSTRACT OF THE UNITED STATES, supra note 1, at 6, table 3,
pp. 44, 47, table 53.
5. Stein, Problems and Programs in Water Pollution, 2 NAT. RES. J. 388, 392
(1962).
6. J. WRIGHT, THE COMING WATER FAMINE 19 (1966).
7. Id.
8. Id.
9. Stein, supra note 5, at 394.








COMMENTARY


period, industrial growth has continued to rise dramatically, and by
1980 production will be more than double the 1950 figure.10 This
increased industrial production will necessarily involve greater water
demands by industry, and since industrial water use is presently
concentrated in the East," water shortages may be expected to occur
in that region.
Another object of concern is the trend toward urban concentration.
It is estimated that by 1980 more than 90 per cent of the population
will live in cities and towns,12 and more than half will live in urban
areas of more than 50,000 persons.13 Urbanization will put a severe
strain on the nation's water resources, since the water-holding capacity
of an area is reduced when rural land is converted into high-density
living areas. Paved surfaces retain heat, increase evaporation, and
reduce recharge areas for replenishment of ground water resources.14
One solution to the water shortage problem is to obtain water from
new sources. The boldest and most ambitious proposal is the North
American Water and Power Alliance.5 This project would result in
the damming of various rivers in Alaska and the Canadian Yukon
and transporting the waters of these rivers into a largely man-made
500-mile-long reservoir, along the Rocky Mountain Trench. This
would involve construction of a series of connecting tunnels, canals,
lakes, dams, and lifts. An estimated 70 million to 150 million kilo-
watts of electric power would also be generated.'6 NAWAPA would
provide water to seven provinces of Canada, thirty-three states, and
three northern states of Mexico. In all, 110 million acre-feet of water
would flow through the system each year with the maximum potential
estimated at 250 million acre-feet or about 36 trillion gallons per
year.17
Even if the NAWAPA project is successfully completed, however,
additional measures toward more efficient management of water
resources must be implemented at all levels of government. This will
require a determination of needs and capabilities, and the formulation
of long-range plans for the development of all water resources and
related land resources within a hydrologic unit. Regulating stream
10. Id.
11.Id. at 388-89.
12. Id. at 393.
13. Id.
14. F. Moss, THE WATER CRISIS 4-5 (1967).
15. NAWAPA: A Continental Water System (Symposium), 23 BULLETIN OF
THE ATOMIC SCIENCES 8 (1967).
16. J. WRIGHT, supra note 6, at 221.
17.Id.








ADMINISTRATIVE STRUCTURE AND OPERATION


flow, improving water quality, increasing the efficiency of water use,
expanding the use of underground storage, and increasing the avail-
able water supply by such measures as desalinization, weather modifi-
cation, and reduction of evaporation lossesis must be considered in
such planning.

State Water Use Planning
The federal government has already increased its planning for multi-
purpose water use. The Water Resources Planning Act19 provides for
coordination of federal water projects through a Water Resources
Council consisting of the Secretary of the Army, the Secretary of
Agriculture, the Secretary of the Interior, the Secretary of Health,
Education, and Welfare, and the Chairman of the Federal Power
Commission.20 The council prepares a biennial report on the adequacy
of the nation's water supplies and a review of all river-basin develop-
ment plans. The act also has authorized planning for individual river
basins and provides federal assistance to states for water planning.
However, federal efforts alone are not sufficient. National water
development goals do not always coincide with those of the states.
Federal water projects deal primarily with the control, storage, and
release of surface water for flood control, power generation, naviga-
tion, and quality control. Although these programs may meet the
needs of some states, they may not be entirely responsive to those of
others.21 The states as the intermediate level of government with
sovereign powers and with primary responsibility for intrastate water
regulation have an important role in the planning process.22 Since
water management often must be directed toward the hydrologic,
economic, and social needs of comparatively small areas, it is more
likely to be responsive to state policies.
Some federal projects, such as those dealing with small watersheds,
operate on a basis of close cooperation with state and local interests.
The Watershed Protection and Flood Prevention Act of 1954, for

18. Lewis, Developing a Comprehensive Water Resources Plan for the Wa-
bash Basin, in REGIONAL DEVELOPMENT AND THE WABASH BASIN 166, 167 (R.
Boyce ed. 1964).
19.42 U.S.C. 1962-1962(d)-3 (1970).
20. 42 U.S.C. 1962 (a) (1970); F. Moss, supra note 14, at 178; Note, The
Water Resources Planning Act of 1965-An Experiment in Creative Federalism,
42 WASH. L. REV. 952 (1967).
21. Metzler, Planning for State Water Resources Administration, 58 J. AM.
WATER WORKS ASS'N 793, 794 (1966).
22. Smith, Total Management of Water Resources, 59 J. AM. WATER WORKS
ASS'N 1335, 1337 (1967).








COMMENTARY


example, places at the local level the full responsibility for initiating
watershed projects.23 The local organization shares in the cost and
owns, operates, and maintains the projects when completed. Local
interests are also responsible for developing the watershed plan, al-
though projects must be approved by the state government as well.
Regulation of water use remains a primary state function.24 This
requires state planning for many purposes including enforcement of
existing laws, enactment of new legislation, coordination of local
regulatory efforts, and administration of consistent state regulatory
policies.25
Unfortunately, state planning and resource management agencies
are frequently understaffed and lacking in sufficient expertise to carry
out meaningful planning responsibility. As a result, state agencies
often conduct little more than token reviews of plans prepared by
local, private, or federal agencies.26 It is essential that state agencies
be staffed to discharge their water resources planning responsibilities
competently. Failure of the states to respond to this challenge can
only result in inadequate and uncoordinated water management.

REQUIREMENTS OF A PROPER STATE WATER RESOURCES
PLANNING PROGRAM

Centralized Planning Responsibility
Planning requires financial investment, a legal framework, and a pro-
gram of public education,27 but, in addition, the state administrative
structure must be constituted so that planning responsibility is con-
centrated within one agency. Lack of coordinated planning in the
past often resulted in state programs which concentrated on one type
of water problem to the exclusion of other phases of the hydrologic
cycle.28 At the federal level, Senator Frank Moss has proposed the
creation of a Department of Natural Resources, placing all federal
water management agencies under one head in order to formulate

23.16 U.S.C. 1001-7 (1970); 33 U.S.C. 701 (1970); see Morgan, The
Small Watershed Program, 22 LAW & CONTEMP. PROB. 405 (1957).
24. See Smith, supra note 22, at 1336.
25. Id. at 1337.
26. Marts, Conflicts in Water Use and Regional Planning Implications, in
REGIONAL DEVELOPMENT AND THE WABASH BASIN 145, 155-56 (R. Boyce ed.
1964).
27. Metzler, supra note 21, at 800.
28. F. MALONEY, S. PLAGER, & F. BALDWIN. WATER LAW AND ADMINISTRA-
TION-THE FLORIDA EXPERIENCE 131.1 (1968) (hereinafter cited as MALONEY,
PLAGER, & BALDWIN).









ADMINISTRATIVE STRUCTURE AND OPERATION


a sound national water resources program.29 As will be discussed
later, a planned water resources program can be most effectively
implemented if the planning agency also has authority over pollution
control as well as regulation of consumptive uses of water. This
extremely important factor is frequently being overlooked today when
new pollution control agencies are being established.

Planning on a Scientific Basis
The interrelationship of the various forms of water requires planning
on the basis of hydrologically interrelated units.0 Planners must take
cognizance of the effect on the hydrologic cycle of water pollution,
use of land resources, drainage of ground water recharge areas, and
urban development. The geographical boundaries of the water re-
source agency, therefore, should be coterminous with a hydrologic
unit since political boundaries frequently do not reflect hydrologic
realities.31
Water management demands a continuing search for new tech-
nology in order to cope with changing water problems. For example,
technology may soon allow urban runoff, now viewed as deleterious,
to be used as a productive source of water for recreational develop-
ment or even urban water supply.32 Science and technology must also
fill the gaps in existing knowledge. For example, proper water manage-
ment requires a greater awareness of the interactions within associated
ecologic and social structures. Basic economic and population research
is also necessary to predict the socioeconomic effect of various water
use patterns and regulations in order that proper physical develop-
ment and management alternatives may be chosen.33

Coordination of Water Quality and Consumptive Use Planning
Water resource planners must recognize the relationship between
water pollution and water use and should consider disposal of munici-
pal and industrial waste as a major consumptive use of water.
Traditional consumptive uses of water in municipalities involve far
less water use than the disposal of waste through sewage systems;34
industry likewise consumes relatively little water, but uses large quan-

29. F. Moss, supra note 14, at 259, 274-75.
30. MALONEY, PLAGER, & BALDWIN 131.2.
31. Bryan, Water Supply and Pollution Control Aspects of Urbanization, 30
LAW & CONTEMP. PROB. 176, 192 (1965).
32. Smith, supra note 22, at 1339.
33. Metzler, supra note 21, at 794.
34. MALONEY, PLAGER, & BALDWIN 131.4.









COMMENTARY


titles for waste disposal.35 Since disposal of wastes by municipalities
and industry often makes the water unusable for other purposes,
whether consumptive or recreational, such pollution must be recog-
nized as one of the most highly consumptive uses of the resource.
Water pollution is not limited to streams. Potentially serious pollu-
tion problems are beginning to develop in connection with ground
water supplies in some areas.36 Drainage operations for agricultural
or mining activities have contributed to this condition, and over-
drainage has already resulted in salt water intrusion in coastal areas.37
The states must therefore include all forms of water quality main-
tenance and improvement as prominent elements in their planning
programs.

Regulation of Consumptive Uses as a Planning Tool
Both federal and state planning efforts have emphasized the develop-
ment of new sources of supply. Perhaps the most ambitious state
water development project is the California Water Plan which involves
the biggest transfer of water yet attempted on this continent.38 The
plan consists of five projects on the Upper Feather River. These
projects will supply 1.3 billion gallons daily; half of this will be used
in the Metropolitan Water District of Southern California, and the
remainder will go to central California.39 The plan extends to water
projects constructed by state, local, and federal agencies and private
interests. It also provides flood control, water storage, and local hydro-
electric power for northern California.40
Water resources management, however, also includes regulation of
consumptive uses and reallocation of water to more productive uses.
The actions of private parties affecting water resources must be
regulated to avoid inconsistency with the policies of the planning
agency.41 A system of consumptive water use permits coordinated with
a program of comprehensive planning is the most effective means of
implementing planning objectives and directing development along
planned lines. This would enable state officials to prevent overdevelop-
ment and competition for water, requiring low value users to seek
35. Id.
36. F. Moss, supra note 14, at 63-64.
37. J. WRIGHT, supra note 6, at 115.
38. Id. at 217-18; H. ROGERS & A. NICHOLS, 1 WATER FOR CALIFORNIA 55-
89 (1967).
39. F. Moss,' supra note 14, at 159-60.
40. Id. at 160.
41. Trelease, Policies for Water Law: Property Rights, Economic Forces and
Public Regulation, 5 NAT. RES. J. 1, 45 (1965).


j








ADMINISTRATIVE STRUCTURE AND OPERATION


new supplies.42 Underdevelopment as well as overdevelopment can be
avoided by a choice of the better use when pending applications for
water use relate to the same supply and the available water is not
sufficient for both.43 Also, when a large development project is fore-
seeable, smaller, less efficient projects can be vetoed in favor of the
greater benefits promised by the later, larger one.44 In some areas
continuation of present water use patterns will eventually exhaust
available supplies despite full regulation of consumptive uses.45 Re-
allocation of water from agricultural to industrial, municipal, and
recreational uses can also increase development potential of some
areas and should be considered as a possible alternative where addi-
tional water supplies are not readily available. Reallocation of this
sort, however, requires efficient mechanisms for the transfer of water
from lower to higher value uses. This means that water must be
transferred to industrial and urban uses, and water devoted to agricul-
tural uses must be applied to the most productive lands and crops.46
Long-range plans must not only anticipate such changes in water use
patterns, but must actually induce transfers to higher value uses.

COMMON LAW RIPARIANISM AND PRIOR APPROPRIATION-
THEIR RELATIONSHIP TO LONG-RANGE PLANNING
IN THE EASTERN UNITED STATES
Does the western prior appropriation system of water rights (under
which, simply stated, the first user of water has a right, as against
later users, to continue to use the same amount of water in per-
petuity,47 or to transfer his right in the marketplace if he sees fit to
do so48) form a better base for sound long-range eastern water law
development than the reasonable use doctrine currently promulgated
by the courts of many of the eastern states?49 There are those who
42. See generally Harris, Water Allocation under the Appropriation Doctrine
in the Lea County Underground Basin of New Mexico, in THE LAW OF WATER
ALLOCATION IN THE EASTERN UNITED STATES 155 (D. Haber & S. Bergen eds.
1958).
43. Trelease, supra note 41, at 44.
44. Id. at 45.
45. Kneese, Economic and Related Problems in Contemporary Water Re-
sources Management, 5 NAT. RES. J. 236, 239 (1965).
46. See N. WOLLMAN, THE VALUE OF WATER IN ALTERNATIVE USES (1962).
47. See J. SAX, WATER LAW, PLANNING & POLICY 2-3 (1968).
48. Trelease and Lee, Priority and Progress-Case Studies in the Transfer of
Water Rights, 1 LAND & WATER L. REV. 1 (1966); Smith, The Rural-Urban
Transfer of Water in California, 1 NAT. RES. J. 64, 65 (1961).
49. For statements of the reasonable use doctrine, see Sax, supra note 47;
MALONEY, PLAGER, & BALDWIN 72.4; RESTATEMENT (FIRST) OF TORTS, 851-









COMMENTARY


think that it does, and they have urged its adoption in a number of
eastern states since World War II. At least nine eastern states,
including Arkansas,50 Georgia,51 Florida,52 Michigan,53 Mississippi,54
North Carolina,55 South Carolina,56 Wisconsin,57 and, most recently,
West Virginia,58 have considered the desirability of switching to an
appropriative type system creating vested water rights, but only Mis-
sissippi has adopted such an approach;59 the others have all rejected
it.60 The authors agree that a switch from riparianism to prior appro-
priation is not a desirable step for eastern states to take at this time.
They believe it undesirable to suddenly afford prior users in the East,
simply on the basis of their existing uses, the rights and benefits that
would result from legislative adoption of the prior appropriation
doctrine. They recognize the argument that application of the rule of
reasonable use could result in uncompensated transfers of the means
of production of wealth. That argument is based on the fundamental
assumption that, in every case, one who introduces a new use of
water should be required to pay a previous user if the latter is
deprived of any portion of his prior use by the former. This is the
basic economic argument in support of the doctrine of prior appro-

54 (1939). The framers of the reasonable use doctrine of the First Restatement
supported that doctrine with authorities from twenty-five states (see Appendix
to Tentative Draft #14 RESTATEMENT [FIRST] OF TORTS 120-23).
50. Rejected. S.B. 69, 60th Sess., Ark. G.A. (1955).
51. Study recommendation not adopted. See INSTITUTE OF LAW AND GOV-
ERNMENT, A STUDY OF THE RIPARIAN AND PRIOR APPROPRIATIVE DOCTRINES OF
WATER LAW (School of Law, Univ. of Ga. 1955).
52. Rejected by Legislative Study Commission. See FLA. WATER RESOURCES
STUDY COMM'N, FLORIDA'S WATER RESOURCES, A REPORT TO THE GOVERNOR
AND THE 1957 LEGISLATURE 14, 15 (1956).
53. Study recommendation not adopted. See THE LAW OF WATER ALLOCA-
TION IN THE EASTERN UNITED STATES 49-70, 441-90 (D. Haber & S. Bergen
eds. 1958) (sets forth and discusses the proposed statute).
54. Adopted. Miss. CODE ANN. 5956-04 (Supp. 1971).
55. Rejected. H.B. 298, S.B. 153, N.C.G.A. (1955).
56. Rejected. H.B. 1085, S.B. 43, S.C.G.A. (1956).
57. Proposal not adopted. See discussion in Coates, Present and Proposed
Legal Control of Water Resources in Wisconsin, 1953 Wis. L. REV. 256.
58. The veto of appropriative type legislation in West Virginia was a topic
of discussion at the Environmental Law Symposium, May 23-24, 1970, Morgan-
town, W.Va.
59. Miss. CODE ANN. 5956-04 (Supp. 1971). Unsatisfactory results have
been noted by Professor William Champion, a University of Mississippi water
law expert. Champion, Altering a System of Water Rights-Look Before You
Leap, in INSTITUTE OF WATER RESOURCES RESEARCH, LECTURES ON LAW IN
RELATION TO WATER RESOURCES USE AND DEVELOPMENT 26 (Univ. of Conn.
1967).
60. See materials cited notes 50-53, 55-58 supra.








ADMINISTRATIVE STRUCTURE AND OPERATION


priation. It has great surface appeal. Others argue that the increased
certainty concerning water rights under the appropriation system
encourages investment and maximizes the beneficial use of water,
whereas the uncertainties inherent in the rule of reasonable use tend
to discourage such investment.61
However, other factors should be considered in comparing these
two systems. The protection afforded the first user may well result in
the perpetuation of what has become an economically unsound use.
In connection with irrigation, for example, western experience in-
dicates that in many cases the effect of prior appropriation is to waste
water that otherwise could be put to beneficial use. The earliest settle-
ment of western valleys frequently occurred in downstream areas,
with the result that senior appropriators are located there. The streams
supplying these areas often pass through arid regions where high
temperatures and parched soil exact a heavy toll in evaporation and
seepage losses. In the Frenchman's Creek area of Colorado, for
example, it is necessary to reduce upstream pumping by 100,000 acre-
feet of water per year to protect downstream uses of 15,000 acre-feet,
and at Beaver Creek a decrease of pumping upstream by 20,000
acre-feet would be necessary to protect a downstream flow of 1,000
acre-feet.62
In addition, once an appropriator has begun using a specific amount
of water, he will frequently continue to draw that amount even though
it may be considerably more than he really needs, since failure to do
so may result in loss of his appropriative right to the excess. In such
cases the system encourages waste and discourages use of new irriga-
tion techniques requiring less water.
Moreover, in the West the appropriation doctrine has tended to
"freeze" the water to specific tracts of land. In theory the right to use
the water is freely transferable, but in the past the unwillingness of
landowners to sell their water rights and thus make their land worth-
less has led to great resistance to such transfers. Some western areas
where, for decades, water has been primarily used for irrigation have
now come to possess a definite potential for industrial development if
substantial amounts of water already appropriated for irrigation can
be made available to industry, but the irrigators have been extremely

61. Busby, American Water Rights Law: A Brief Synopsis of Its Origins and
Some of Its Broad Trends with Special Reference to the Beneficial Use of Water
Resources, 5 S.C.L.Q. 106 (1952).
62. See Trelease, A Model State Water Code for River Basin Development,
22 LAW & CONTEMP. PROB. 301, 315 (1957).








COMMENTARY


reluctant to make such transfers. The President's Materials Policy
Commission warned the West in its 1952 report that "it must soon
decide whether its future must be sacrificed by its antiquated priorities
systems in water use.""63 Protection of earlier and less efficient in-
dustrial uses by affording almost absolute protection of prior users
through the adoption of prior appropriation principles could well
have the same results in the East. The obstacles it would present to
reallocation of water to more important uses could be serious.
This is not to say that the rule of reasonable use presents an ideal
solution to the problems of water allocation either. The major criticism
of the reasonable use approach relates to the element of uncertainty
associated with the reasonable use of water for nondomestic purposes.
Because the reasonableness of each use is determined by the needs of
other riparians, unforeseen conditions arise when others commence or
enlarge uses despite long nonuse of their rights. This uncertainty is
increased in most eastern jurisdictions by lack of provision for ad-
ministrative controls and decision-making authority, with the result
that the extent of a riparian's right of reasonable use can be deter-
mined only by litigation. Recognizing their lack of expertise and the
inefficiency of a case-by-case approach, the courts have been reluctant
to become involved. In addition, the numerous courts are structurally
not as capable of uniformity in the application of the law as a single
centralized agency would be.
As population growth and modern technological developments in
both agriculture and industry have been making increasingly greater
demands on eastern water supplies, the problem of maintaining
streamflows and ground water levels has assumed increasingly greater
importance. Concern over the adequacy of existing laws to cope with
emerging water resource problems is leading many executive and
legislative study committees to propose new methods to deal with the
problem. The legislatures are creating administrative authorities in a
number of eastern states, with varying powers to grant permits
authorizing the withdrawal of water from streams, and thus to provide
a means of regulation of existing and future water uses.
Such permit systems possess at least three advantages over the
common law method of rights determination: (1) the agency makes
its decision before a dispute has erupted into litigation, whereas a
court generally can act only after such a dispute arises; (2) the
agency makes its decision in light of all water uses and users, and is
63.5 U.S. PRESIDENT'S MATERIALS POLICY COMMISSION, RESOURCES FOR
FREEDOM 94 (1952).








ADMINISTRATIVE STRUCTURE AND OPERATION


able to consider the public interest, whereas a court is often limited
to the litigants before it; and (3) members of the decision-making
board, unlike judge or jurors, are experts on water, and their decisions
can be made with long-range plans for the wise use and conservation
of water resources in mind.
It may be argued that most western states have long used ad-
ministratively operated permit systems, and the fact that eastern
jurisdictions are increasingly turning to such systems to replace the
common law reasonable use approach is an argument that the western
approach is demonstrably superior.
But the need for administrative controls in the East as the demand
for water approaches the limits of available supply does not neces-
sarily mean that it is desirable to adopt also the western approach of
protecting the earliest user. The ideal permit system can strike a
measure of balance between prior appropriation and the doctrine of
reasonable use. It can allow the permit holders some certainty by
reason of their permits, and assure the public a degree of flexibility by
making the permits subject to periodic expiration and review. This
compromise, which has been statutorily adopted in Iowa,64 appears
workable and more beneficial to the welfare of all the community.
This is the approach advocated by the Commissioners on Uniform
State Laws in the Model Water Use Act. As stated in the commentary
to section 406 of that act, "This limitation [on the length of permits]
insures re-evaluation at periodic intervals of the beneficial character-
istic of the permitted use."65 A similar limitation is found in the
Model Water Code.66
It would be most unfortunate for eastern legislatures to adopt a
rule which would tend to freeze water rights through the creation of
vested rights in the first user at the very time when other eastern
jurisdictions are beginning to re-evaluate their systems of water alloca-
tion in the light of modern technological demands and population
growth. The recognition of such vested rights in the first user has been
said to "seriously impede a high level of beneficial use of a state's
water resources,"67 and to be a "serious legal barrier to wise water
development.""68

64. IOWA CODE ANN. 455A.20 (Supp. 1971).
65. MODEL WATER USE ACT 406 and Comment (1958).
66. MODEL WATER CODE 206 and Commentary.
67. Fisher, Western Experience and Eastern Appropriation Proposals, in THE
LAW OF WATER ALLOCATION IN THE EASTERN UNITED STATES 75, 94 (D. Haber
& S. Bergen eds. 1958).
68. Englebert, Political Aspects of Future Water Resources Development in








COMMENTARY


While the concept of protecting the first users in perpetuity was
developing out of the customs of the miners during the California
gold rush, on the frontier principle of "first come, first served," no
such development occurred during the parallel gold rush in Australia.
In that country the colonial government of Victoria allowed no period
of legislative inaction in which the customs of the miners could
develop into a recognizable body of legal principles. Government
licenses to supply water for gold mining purposes were issued and
supplied the same mining needs as the California doctrine of prior
appropriation, but the licenses were for a period of fifteen years
rather than in perpetuity. The Victoria government was, therefore,
in a position to plan and coordinate the water development of the
country in a way not possible in the American West.69
In these days of emphasis on conservation of natural resources,
another criticism of the appropriation approach is worth noting. Adop-
tion of the appropriative principle does not lead to conservation of
water resources. It supports the rugged individualist theory that ignores
the needs of all of society, and not the interest-of-the-public principle
which should be applied to this great natural resource. If one user
can put an entire stream to his beneficial use, he can acquire the
exclusive right to the use of the water of that stream, a vested right
continuing as long as he puts the water to such use. Utilization, rather
than conservation, is the guiding principle, and the devil take the
hindmost. Big industry in the East would be the big winner from the
adoption of such a principle, to the exclusion of other very valid
interests.
A further telling criticism of the priority approach is that, due to
its oversimplification, it does not provide an adequate tool for estab-
lishing an entire complex of state water law and policy. "It contributes
nothing toward answering the question 'What is the best use?' "70
A working team of hydrologists, biologists, engineers, economists,
political scientists, and lawyers could best answer that question. The
reasonable use doctrine provides the flexibility within which such a
team can work. The priorities approach does not.


the West, in WESTERN AGRICULTURAL ECONOMICS RESEARCH COUNCIL, COM-
MITTEE ON ECONOMICS OF WATER RESOURCES DEVELOPMENT, Report no. 1, at
85, 89 (1953).
69. See Clark and Renard, The Riparian Doctrine and Australian Legislation,
7 MELBOURNE U. L. REV. 475, 480-87 (1970).
70. See ELLIS, BEUSCHER, HOWARD, AND DEBRAAL, WATER-USE LAW AND
ADMINISTRATION IN WISCONSIN, 20.01b (1970).








ADMINISTRATIVE STRUCTURE AND OPERATION


Retention for the present of the reasonable use approach of bal-
ancing the utility of the defendant's use against the gravity of the
harm to existing uses will provide the flexibility necessary to allow
the eastern states to adopt sound plans for the overall development,
administration, and conservation of their water resources without being
shackled with the problems created by the adoption at this late date of
rules protecting existing uses in perpetuity, no matter how antiquated
those uses may become.

1.01 Model Water Code
This act shall be known and cited as the Model Water Code.71

1.02 Declaration of Policy
(1) Recognizing that the waters of the state are the property
of the state and are held in public trust for the benefit of its citi-
zens, it is declared that the people of the state as beneficiaries of
this trust have a right to have the waters protected for their use.

COMMENTARY. Scientists have long recognized that water resources
are interrelated and normally pass through various stages in the hydro-
logic cycle.72 Atmospheric water falls to earth as precipitation, flows
over land as diffused surface water, runs into surface water courses,
collects in lakes and ponds, percolates into the ground water supply,
slowly moves into the ocean, and becomes tidal water. Finally, evapo-
ration from the land and ocean, combined with transpiration, returns
the water to the atmosphere where the cycle is repeated.7" Although
scientists view the hydrologic cycle as a continually changing entity,
the legal process has attempted to fractionalize this ever continuing
cycle into correlative rights and duties applicable to specific persons
who control a body of water for only a short period of the total cycle.
But the courts have also realized that rights in water were not gener-
ally defined as strict property rights but rather only as usufructuary
rights, such as a right to reasonable use.74 This section of the Model
Water Code applies the concept of the public trust doctrine to all waters

71. See generally MODEL WATER USE ACT 702 (1958).
72. See, e.g., Foley, Water and the Laws of Nature, 5 KAN. L. REV. 492
(1957); Black, Basic Concepts in Ground Water Law, 39 J. AM. WATER WORKS
ASS'N 989 (1947); Thompson & Fiedler, Some Problems Relating to Legal
Control of Use of Ground Waters, 30 J. AM. WATER WORKS ASS'N 1049 (1938).
73. MALONEY, PLAGER, & BALDWIN 10.
74. Maloney, Judicial Protection of the Environment: A New Role for Com-
mon-Law Remedies, 25 VAND. L. REV. 145 (1972).








COMMENTARY


of the state as a means of authorizing the government to protect such
waters in all phases of the hydrologic cycle.
The public trust doctrine had its inception in the case of Illinois
Central R. R. v. Illinois75 in which the Supreme Court of the United
States took the position that the title of the state of Illinois to the
land underlying the navigable waters of Chicago harbor was "a title
different in character from that which the statee holds in lands intended
for sale."76 The Court then held that the Illinois legislature did not
have the power to convey these lands to the Illinois Central Railroad
in violation of the trust.77 Professor Sax argues that the trust is not
limited to interests in submerged lands but is available to protect the
interest of the public in such common properties as "the seashore, high-
ways, and running water. ."7 Indeed, he believes it extends beyond
conventional applications to "controversies involving air pollution, the
dissemination of pesticides, the location of rights of way for utilities,
and strip mining or wet land filling on private lands. .. "79
The public trust concept provides a means for the revitalization of
water law through recognition that state authorities and private citizens
have a duty to other citizens to protect the res of the trust.80 The trust
concept focuses on correlative rights and duties in the handling and
consumption of water, not simply as they affect local riparian owners,
but rather as these rights and duties affect the total citizenry of the
state as the beneficiaries of the trust.

Supporting Federal Authorities for the Application of the
Trust Doctrine
In Georgia v. Tennessee Copper Co.81 the Supreme Court of the United
States held that a state in its capacity as a quasi-sovereign entity has an
interest independent of and beyond all legal titles in "all the earth and
air within its domain."82 Although the Court did not specifically men-

75. 146 U.S. 387 (1892).
76. Id. at 452.
77. Id. at 452-55.
78. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judi-
cial Intervention, 68 MICH. L. REV. 471, 475 (1970).
79. Id. at 556-57.
80. Sax argues that this was the basis for the standing of the citizens in Gould
v. Greylock Reservation Comm'n, 350 Mass. 410, 215 N.E. 2d 114 (1966) to
question the right of the commission to lease a substantial portion of the reser-
vation for development as a ski resort to be operated as a commercial enter-
prise. Id. at 493.
81. 206 U.S. 230 (1907).
82. Id. at 237.








ADMINISTRATIVE STRUCTURE AND OPERATION


tion water, the decision may well be interpreted today to include water
within the categories in which the state has quasi-sovereign rights, for
when the case was decided, water pollution did not threaten the well-
being of society as it does at this time. The Court further states that
the state "has the last word as to whether its mountains shall be stripped
of their forests and its inhabitants shall breathe pure air."83 The tenor
of such statements is that the Court recognizes that the states have an
important interest in preserving their resources in their roles as quasi-
sovereign entities. This interest has been described as a Parens Patriae
interest,84 signifying the state's duty to protect the resources within its
boundaries for the common good of its citizens. The Tennessee Copper
Company case gives federal recognition to the public trust doctrine.
Moreover, the public easement in navigable waters could easily be
judicially broadened to an easement in the public not to have riparian
owners pollute these bodies of water.

The Extension of the Public Trust Doctrine to Waters
Which Are Neither Legally Nor Factually Navigable
A cogent argument for subjection of nonnavigable water bodies to the
public trust is that the waters within these bodies are not static and
permanent but will eventually become a part of navigable streams
through the hydrologic cycle. These waters, through the hydrologic
cycle (evaporation, runoff, and percolation), will have a substantial
effect on the amount of water available in, as well as the amount of
pollution which will eventually find its way into, the navigable waters
of the state. Thus, they too should be held within the public trust with
every citizen as its beneficiary. This is not to say the state effects a
taking or condemnation of such property, but rather that the state re-
quires that riparian owners follow minimal procedures to ensure that
their actions do not endanger waters held in trust for the public.

Why Implement the Public Trust Doctrine?
The public trust concept provides the legal underpinning for a viable
enforcement procedure to safeguard a transient natural resource such
as water. Water, as a resource, cannot be described as being perma-
nently situated within any particular boundaries. Since no one citizen
can permanently own the state's water resources or totally deny other

83. Id.
84. Telephone conversation between Professor Maloney and Professor Joseph
Sax, March 6, 1971. See generally Sax, The Public Trust Doctrine in Natural
Resource Law: Effective judicial Intervention, 68 MICH. L. REV. 471 (1970).








COMMENTARY


citizens the right to use them, water resources do not fall within the
classic definition of property rights. Each citizen's right in the water
can best be described as a right to common use of a resource to be
used by all but owned by none. Since the water is held by the state for
all its citizens as beneficiaries, no one citizen can unreasonably inter-
fere with the rights of other beneficiaries.
What pragmatic effects does the trust doctrine have? First, state
agencies can be held to a higher standard with respect to their actions
and omissions concerning the trust res. The actions of state agents, as
fiduciaries of the res, could be judicially attacked as not displaying the
high standard of care needed to protect the res. Second, each citizen
would have the standing to demand judicial review of the actions or
omissions of private individuals or state agents which affect the quality
of water. Since each citizen is a beneficiary of the res, the courts could
no longer deny him a forum on the ground that he lacked sufficient
standing. Third, the doctrine would serve as a constant reminder to
each citizen that he does not possess riparian water to the extent that
he can despoil it for the public as a whole. Last, and perhaps most sig-
nificant, the public trust could effectively serve as a viable procedure
to effectuate antipollution standards against owners of nonnavigable
riparian land as well as land overlying ground water reservoirs. Impo-
sition of these standards will not be a compensable taking of their
property, but rather a demand that all landowners live up to the same
antipollution standards as other citizens of the state.

(2) There is urgent need for an accelerated program of com-
prehensive water resources planning to meet the rising water re-
quirements of a growing population and expanding economy. The
state water plan, with such future amendments, supplements, and
additions as may be necessary, is accepted as the guide for de-
veloping and implementing this policy.

COMMENTARY. This paragraph expresses the need for adequate water
resources planning and adopts the state water plan as a response to
this need. The first sentence was adopted from the National Rivers and
Harbors Congress-Principles and Policies for Water Resource Devel-
opment, preamble (draft of March 5, 1969). The second sentence was
taken in modified form from the California Water Code.85

(3) The Model Water Code shall be liberally interpreted to
85. CAL. WATER CODE 10005 (West 1971).








ADMINISTRATIVE STRUCTURE AND OPERATION


obtain maximum beneficial use of the waters of the state for such
purposes as domestic uses, irrigation, power development, min-
ing, and industrial uses. However, adequate provision shall be
made for the protection and procreation of fish and wildlife, the
maintenance of proper ecological balance and scenic beauty, and
the preservation and enhancement of waters of the state for navi-
gation, public recreation, municipal uses, and public water sup-
ply; such objectives are declared to be in the public interest.

COMMENTARY. Subsection (3) sets out a list of water uses which are
declared to be beneficial. A second class of water uses is declared to
be in the public interest. These uses receive special protection under
the Model Water Code. There is an affirmative duty upon the state and
local boards to see that these uses are not adversely affected by the
operation of the code. In particular, these uses shall be preferred to
other beneficial uses when competing applications are made for a per-
mit under the provisions of 2.05 (1). This provision was modeled
after an Oregon statute.86

(4) The Model Water Code shall be liberally interpreted to
protect and improve the quality of waters of the state and to pro-
vide that no substance be discharged into such waters without
first receiving the necessary treatment or other corrective action.
The people of the state have a substantial interest in the preven-
tion, abatement, and control of both new and existing water pol-
lution, and the maintenance of high standards of water quality.
The people of the state recognize the need for the state water
resources board to cooperate with agencies of other states and
the federal government in carrying out these objectives.

COMMENTARY. This subsection emphasizes the need for effective water
quality control. A state policy requiring adequate treatment of waste
products and the maintenance of high water quality standards is set
forth. The need for greater governmental cooperation is also recog-
nized.87

(5) The public interest, health, safety, and welfare require that
scientific research and experimentation in the field of artificial

86. See generally ORE. REV. STAT. 537.170 (3) (1970).
87. See generally CAL. WATER CODE 13000 (West 1971); FLA. STAT. 403.021
(1971).








COMMENTARY


weather modification and scientific efforts to develop, increase,
and regulate natural precipitation be encouraged. A program for
licensing, regulation, and control of interference by artificial
means with the composition, behavior, or dynamics of the atmos-
phere must be established in order to develop, conserve, and pro-
tect the natural resources of the state and to safeguard life and
property.

COMMENTARY. This subsection sets forth the dual objectives of state
involvement in weather modification: encouragement of research and
experimentation while insuring public protection. Most existing state
declarations of purpose, including Florida's, have not recognized both
objectives. The natural resources and police power bases for regula-
tion are also set forth.88

1.03 Definitions
When appearing in this code or in any rule or regulation
adopted pursuant thereto, the following words shall mean:
(1) State board-The state water resources board.89
(2) Water management district-Any flood control or water
management district operating under the authority of this code.90
(3) Governing board-The governing board of a water man-
agement district.91
(4) Reasonable-beneficial use-The use of water in such a
quantity as is necessary for economic and efficient utilization, for
a purpose and in a manner which is both reasonable and consist-
ent with the public interest.

COMMENTARY. The reasonable-beneficial use rule is the standard by
which water use is governed under the code. It is a term of art and
should not be confused with either the western prior appropriation
term "beneficial use" or the riparian term "reasonable use." It includes
the standard of reasonable use but it also requires efficient economic
use of water, a characteristic of beneficial use. In addition to the rights

88. See generally CAL. WATER CODE 400 (West 1971); WEATHER MODIFI-
CATION ASSOCIATION, ELEMENTS OF A MODEL LAW FOR REGULATION OF WEATHER
MODIFICATION ACTIVITIES, no. 1, Purpose (1969).
89.See generally FLA. STAT. 373.081 (1) (1971). The functions of the
Florida Board of Conservation have been transferred to the Department of
Natural Resources. FLA. STAT. 20.25 (1971).
90. FLA. STAT. 373.081 (4) (1971).
91. See id. at 373.081 (3).








ADMINISTRATIVE STRUCTURE AND OPERATION


of other riparians, under the code a water user must now consider the
rights of the general public. Wasteful use of water will not be permitted
under the reasonable-beneficial use standard, regardless of whether or
not there is sufficient water to meet the needs of other riparian owners.
This provision is original.92

(5) Person-Any and all persons, natural or artificial, includ-
ing any individual, firm, association, organization, partnership,
business trust, corporation, company, the United States of
America, the state, and all political subdivisions, districts, munic-
ipalities, and public agencies thereof.

COMMENTARY. An extremely broad definition of "person" is intended
and the enumerated examples are not considered to be exhaustive. The
United States government is included within the definition of person.93
While state regulatory powers over the federal government are limited
by the Supremacy Clause of the United States Constitution, the states
retain some authority, particularly over proprietary activities, of the
federal government.
The definition is taken primarily from the California Water Code,94
although the phrase "any and all persons, natural or artificial, including
any individual" is taken from a Tennessee statute.95

(6) Domestic use-Any use of water for individual personal
needs or for household purposes such as drinking, bathing, heat-
ing, cooking, or sanitation.

COMMENTARY. Domestic uses are exempted from regulation under
2.01 (1). For this reason, some care has been taken to make this
definition as restrictive as possible. Thus, the Model Water Code's
definition omits "cooling of private residences" because this use collec-
tively accounts for considerable utilization of water, and also excludes
"maintenance of commercial lawns, gardens, or orchards," both of
which appear in a comparable provision of the Model Water Use Act.96
In neither instance did the drafters intend to exclude such uses from
"domestic use" status, but instead attempted to place the burden of
justifying an inclusion of their uses in the domestic use category upon
92. See generally ch. 58, 5.002(3) [1971] TEX. LAWS 112.
93. Contra, MODEL WATER USE ACT 102 (k) (1958).
94. CAL. WATER CODE 19, 5000 (d), 5100 (a) (West 1971).
95. TENN. CODE ANN. 70-301 (Supp. 1970).
96. MODEL WATER USE ACT 102 (f) (1958).




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