New Constraints on Irrigation and Drainage

Material Information

New Constraints on Irrigation and Drainage
American Society of Civil Engineers


Subjects / Keywords:
Stormwater ( jstor )
Water resources ( jstor )
Drainage water ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


Richard Hamann's Collection - New Constraints on Irrigation and Drainage
General Note:
Box 12, Folder 6 ( Legal, Institutional and Social Aspects of Irrigation and Drainage and Water Resources Planning and Management - 1979 ), Item 11
Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.

Record Information

Source Institution:
Levin College of Law, University of Florida
Holding Location:
Levin College of Law, University of Florida
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All applicable rights reserved by the source institution and holding location.


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By John Johnston*


The paper outlines the present laws under which agricultural
drainage in Ontario is authorized.

Let me begin by stating that I am an engineer not a lawyer. The
comments in this paper describe the rules as I know them and are not
authorative with respect to the fine points of the law. This paper is
meant to be an easily understood dialogue of the laws regarding land
drainage in Ontario.

Drainage law in Ontario is broken into two sections Common Law
and Statute Law. The principles of the Common Law are very old and
were developed by the courts before any overriding Statute Law was
enacted. Because the principles of Common Law continue to be in effect
unless they are specifically altered or overridden by statutes. I
will first outline the basic rules of Common Law.

The Common Law is divided into two parts. First there are the
rules and obligations of riparian landowners those who own land
abutting a natural watercourse. Under the Common Law riparian owners
have the right to drain their land which lies within the watershed into
the natural watercourse even though the results may be an increase in
the rate and volume of flow, providing the drainage is reasonable,
ie. up to the capacity of the banks of the stream. This right arises
from ownership of the land abutting the stream and cannot be sold or
assigned to any other owner.

The riparian owner has the right to have the water in the natural
watercourse come to him undiminished in quantity or quality. He also
has the obligation to receive the water insomuch as it may do him harm
either by flooding or other action.

It is the duty of anyone who interferes with the course of a
natural stream to ensure that the works he substitutes for a channel
provided by nature are adequate to carry the water which may be brought
even by an extraordinary rainfall event. If damages result from
interference with a natural channel, then the owner is liable.

The second set of rules in Common Law govern water which does not
flow in natural channels but finds its way to streams by surface or
sheet flow and percolation. To summarize the rules in respect to
surface flow and percolation it may be said that as far as owners of
low land are concerned, they cannot claim the assistance of the law to
prevent the natural flow of surface water from adjoining high land.
However, they are not obliged to receive surface water flowing upon
*Drainage Co-ordinator, Ontario Ministry of Agriculture and Food


their lands. The low landowner may, without liability, protect his own
lands by building structures or filling the land to a height sufficient
for protection even if the result is flooding on the upper owner and the
upper landowner has no recourse in the Common Law.

If a person collects surface water by channels, furrows or proper
drains he loses any rights he had in respect to uncollected surface
water. Once the water is collected he must take it to a sufficient
outlet, ie. a place where the water can be discharged and does no harm
to lands or roads.

This set of Common Law rules although straight forward, lead to
many conflicts. In some cases they denied the right of water to run
downhill, in other cases they prevented the opening up of watercourses
that were choked with debris and sediments. As a result of these
conflicts statutes which, under a stated set of circumstances, override
the Common Law were enacted by the Ontario Legislature.

The first statute law affecting drainage in Ontario was passed in
1835. The statute was entitled "An Act to Regulate Line Fences and
Watercourses" and set out the basic principles that exist today. The
statute has undergone many revisions from 1835 to the present Drainage
Act, 1975.

The Drainage Act, 1975, allows for the construction of drains under
any one of three procedures: Mutual Agreement, Requisition or Petition.
Where two or more owners can agree on the location, size, type and
distribution of the cost for the construction and maintenance of a
drainage works, they may enter into a written agreement under The
Drainage Act. Once signed, and filed with the clerk of the municipality
and in the local land registry office, the agreement is valid and bind-
ing on the present, and all future owners of the properties. Enforce-
ment of the provisions of a Mutual Agreement Drain is through a court

Where several, but not all of the owners can agree on the need for
a drain, they can Petition the council of their local municipality for
the construction of a drain. One of the interested landowners must
describe the area requiring drainage on a prescribed petition form.
This area does not include the entire watershed but will be the low
lying and wet area of the watershed. This owner then circulates the
petition to the other landowners in the area described. In order to
be valid the petition must be signed by the majority in numbers of the
owners in the area described or the owners of at least 60 percent of
the acreage in the area described.

Once the petition is signed it is filed with the clerk of the
municipality. The council of the municipality must consider the
petition within 30 days of receipt and advise each of the petitioners
of their decision to accept or reject the petition. If they reject the
petition any petitioner can appeal that decision to the Ontario Drainage
Tribunal. If council accepts the petition they must notify the local
Conservation Authority and other local councils that may be affected
and wait 30 days to see if an environmental appraisal of the proposed


drain is required. After 30 days, council instructs an engineer to
prepare a report on the problem. If an environmental appraisal is
required, council must also instruct the engineer to obtain this docu-
ment. Council may also ask that a preliminary report be prepared,
showing the approximate size, location, type and cost of the proposed
drain, so that all persons involved have a better understanding of what
will be required to correct the problem before too much money is spent
on engineering.

The engineer calls an on-site meeting of all the landowners in the
area described on the petition. At the meeting he first determines if
the petition is valid and then determines what problem the landowners
want him to solve. If a preliminary report is requested the engineer
prepares one and files it with the clerk of the municipality. Council
then calls a meeting of all the landowners in the area described on the
petition. After discussion of the report at the meeting each landowner
is given the opportunity of adding to or withdrawing from the petition.
If, at the end of the meeting the petition is no longer valid, the
original petitioners pay the costs to date on an equal share basis and
the procedures stop. If the petition is still valid, council instructs
the engineer to prepare a full report on the problem.

The engineer, knowing the nature of the problem, writes a report
showing his recommended solution, an estimate of the cost of the
solution and an assessment schedule showing what proportion of the
estimated cost, in his opinion, should be paid by each landowner who
used the drain for an outlet. The schedule usually includes an area
larger than that described on the petition.
The cost assessed against each property is broken into three
headings, namely, benefit, outlet liability and injuring liability.
Benefit assessment is charged on the basis of benefits actually
provided to the property by the construction of the drain. Benefits
include the cutting off of surface water from flowing onto a property,
increased capability for agricultural production, easier maintenance
of lands, roads or buildings, and other similar benefits.

Outlet liability relates back to the Common Law of surface waters.
The hypothesis is that a person cannot make use of land without
channelling water in some way, no matter how small, and therefore he
must take his channelled water to a sufficient outlet. Therefore,
every property which uses the drain as an outlet is charged a portion
of the cost of the drain on the basis of the rate and volume of water
directed from the property into the drain. Properties that are assessed
for outlet liability only, do not count for or against the petition, and
have no bearing on whether or not the drain is constructed.

Injuring liability also relates to the Common Law of surface
waters. Where a person has collected surface water, discharged it on
the lands of another person and has caused damage, then a liability
exists. He did not take the collected water to a sufficient outlet. If
the construction of the drain provides an adequate outlet the liability
is removed and the owner who collected the water is charged for injuring
liability on the basis of the rate and volume of water that is causing
the injury.


As soon as the report is completed the engineer files it with the
clerk of the municipality. Council considers the report and calls a
meeting of everyone who will be assessed if the drain is constructed.
The report is discussed at the meeting. If it appears that there are
errors or omissions in the report, it is referred back to the engineer.
The engineer reconsiders the report, files it with the clerk, the
council calls a meeting and so on until no obvious errors are found in
the report.

After the report has been considered at the meeting council gives
every landowner in the area requiring drainage as described on the
petition an opportunity to add to or withdraw from the petition. If,
at the end of the meeting the petition is no longer sufficient, the
original petitioners pay the costs to date and proceedings stop. If
the petition is still valid, council may adopt the report by by-law.

When the report has been adopted a series of appeals are provided.
There may be appeals against the assessment schedule, the technical
aspects of the report, and the legal procedures used to obtain and
adopt the report. After all appeals have been heard or the time for
appeals has elapsed, council passes the by-law authorizing the
construction. Council arranges to have the construction done and bills
each landowner for his share of the actual cost of the work. Each
landowner's assessment is calculated pro-rata on the basis of the
schedule contained in the engineer's report as finally adopted by the

Any landowner affected by the drain can, at any time up to one
year from the date of acceptance of the drain by the municipality,
appeal the quality of the construction to the Ontario Drainage Tribunal.
The Tribunal views the drain and is empowered to "make such order as
appears just."

The Act places the responsibility of drain maintenance on the
municipality. The costs of any maintenance work is recovered from
those landowners in the area who use the drain, or part of the drain
as an outlet for their water. If the municipality neglects or refuses
to do maintenance work on a drain any owner who is injured by the
condition of the drain can serve notice on the municipality that his
property is being injured. The municipality has thirty days in which
to start maintenance procedures, if they do not, they can be ordered
to by Court Order and the municipality is liable for any damages
that occur after the expiry of the 30-day period.

Minor maintenance and repairs are performed on a routine basis
under the direction of the municipal council. When it is necessary
to do major repairs and improvements the procedures are the same as
those for construction of a drain except that a petition is not
required. In this case the request of a single affected landowner is
sufficient to start procedures or the municipal council could start
procedures on their own recommendation.


A drain may be abandoned by petition of three-quarters of the
owners assessed for benefit who own not less than three-quarters of
the acreage assessed for benefit.

In order to encourage good drainage practices and improve agricul-
tural production the Province pays a grant of one-third of the cost
assessed against agricultural lands for drains constructed, repaired
or improved in accordance with the Act. In the 10 years ending
March 31, 1978, a total of $18,772,400 was spent on 2,607 projects
throughout the Province. A total of $5.2M was provided by the Province
through direct grants to the farmers.

In addition to the Drainage Act there are two other pieces of
legislation relating to farm drainage. The Tile Drainage Act provides
for low interest loans to farmers for the purpose of tile draining
their property. The loans are for up to 75 percent of the cost of the
tile system and are repaid in equal instalments over a 10-year period.
The loans are provided through the municipal councils who have the
final decision on who may be given a loan and how large the loan will

In order to ensure a minimum standard of workmanship for farm
drainage each contractor who installs farm drains must be licenced
under the Agricultural Tile Drainage Installation Act. Every drainage
machine used for installing tile systems must be licenced under this
Act as well as each machine operator. We do not licence backhoes and
other ancillary equipment, only the machine that actually installs the
tile system. There are two provincial inspectors appointed under this
Act who inspect each contractor on a spot check basis.

Almost all of southern Ontario is divided into Conservation
Authorities. These are autonomous corporate bodies encompassing all
municipalities or parts of municipalities in the watershed of a major
river. The Authorities were organized with the intent of constructing
large works which would benefit the residents of the river basin. To
date, the Authorities have confined their activities to providing
dams for flood and water quality control as well as recreation even
though they can construct smaller drains under their Act.

In summary, in Ontario the Common Law always applies unless
specifically altered by Statute. The three pieces of legislation that
affect agricultural drainage are: The Drainage Act, The Tile Drainage
Act and The Agricultural Tile Drainage Installation Act. Copies of
these can be obtained from the Ontario Government Bookstore at 801 Bay
Street, Toronto.


R. Timothy Weston*

Pennsylvania is blessed with abundant water resources. With an average
annual precipitation of 30 to 60 inches, its 10.5 million acres of forest, farms and
urban areas form the watersheds of 50,000 miles of surface streams and constitute
substantial drainage basins for four major interstate rivers.
Pennsylvania's bounty has at times also been the scourge of her citizens.
Flooding has damaged human settlements from the earliest days of the colonial
proprietors. Urban, industrial and commercial development, as well as clearing of
land for agriculture and mining, has increased runoff and simultaneously placed
valuable structures and investments in the path of storm drainage and flood
Since 1936 just 40 years ago Pennsylvanians have suffered 18 major
floods, accounting for total damages in excess of $5.8 billion. Although there is a
tendency to look upon the great floods, such as the disasters of 1936, 1972 and
1977, as remote and unprecedented events, the fact is that serious and moderate
storms and accompanying flooding are a part of the regular and natural history of
the Commonwealth.
Drainage law and stormwater management are matters of public as well as
private concern. The ability of one owner to develop land, install impervious
surfaces, alter drainage paths and accelerate runoff onto other properties involves
more than issues of what rights and relief should be accorded neighboring property
owners. Urbanization may double or triple the peak flows of five- and ten-year
floods. Lands far downstream may be severely impacted by the cumulative
effects of unplanned and unregulated changes in drainage patterns due to urban
clearance, grading and development.
Increasingly, the costs of uncontrolled drainage modifications and storm-
water management have fallen on the State and Federal budgets in the form of
damage to public facilities, flood relief to injured communities, and revenues lost
through unemployment and tax adjustments on damaged properties and businesses.
To the extent that these damages could be limited or reduced by reasonable flood
plain and stormwater planning and management, the public clearly has a stake in
the development of rational legal and institutional approaches to these goals.
It is with this perspective that Pennsylvania has for the past four years
engaged in a comprehensive review of the Commonwealth's stormwater manage-
ment laws and policies in preparation for the development of proposals for major
reform of our approaches to drainage and flood problems.

Existing Legal and Institutional Arrangements

Pennsylvania's basic drainage law is founded on the common law the
decisions developed by our courts over the past 200 years in case-by-case
resolution of litigation. Much of Pennsylvania's stormwater management and

* Assistant Attorney General, Pennsylvania Department of Environmental
Resources, Harrisburg, Pennsylvania.


flooding problem can be traced to incredibly Byzantine common law drainage
rights doctrines conceived by those courts and perpetrated on an unsuspecting
Mother Nature by the legal profession.
The difficulties start with the common law classifications of water. While
scientists generally consider all water as part of a unitary hydrologic cycle, for
purposes of drainage rights the common law of Pennsylvania and most other
American jurisdictions have attempted to distinguish two "natural" divisions of
waters on the surface of the earth: surface waters in defined watercourses and
lakes, and diffused surface waters.
"Diffused surface water," often referred to as "surface water" in common
law decisions, encompasses the uncollected flow from falling rain or melting snow
and waters which flow from springs and diffuse over the surface of the earth. In
contrast, a "watercourse" or "natural stream", as generally defined in
Pennsylvania cases, refers to water flowing in a definite channel with a bed and
In evolving the rules to be applied to stormwater cases, Pennsylvania courts
were confronted with the choice of three basic legal doctrines used in other
American jurisdictions. These doctrines are commonly referred to as the "civil
law," "common enemy," and "reasonable use" rules. These three rules, their
progeny and mutations, differ substantially in their origins, basic theories, and
fundamental policies.

The Civil Law Rule

The civil law rule of drainage accords the owner of upland property the right
to drain surface waters onto lower lands and correspondingly imposes on lower
owners a duty to receive surface waters from above their land. The civil law rule
grants the owner of the higher or dominant land an easement of natural flow over
the lower or servient land. A possessor of lower land may not obstruct the natural
flow of diffused surface water or watercourses from higher land. In its pure form,
however, the doctrine does not allow the upland owner any right to increase the
burden on the lower land by accelerating the rate or enlarging the amount of
Like many areas of water law founded on maxims and homilies, the pure
civil law rule did not prove particularly satisfactory and has been substantially
modified. Although the claimed advantage of the civil law rule is predictability,
the rule arguably tends to inhibit land development. The emphasis on "natural"
drainage allegedly puts severe strictures on upper landowners, since it is virtually
impossible to grade, construct or pave land without modifying to some degree the
natural quantity and paths of runoff. In response to this perceived threat to
unencumbered land development, various states limited its application to rural
land or qualified the doctrine with a rule of reason requiring courts "to determine
the rights of the parties with respect to the disposition of surface waters by an
assessment of all relevant factors."

The Common Enemy Rule

The common enemy rule is the antitheses of the civil law doctrine. In
substance, it holds that a possessor of land has an unlimited and unrestricted legal
privilege to deal with the surface water on his land as he pleases, regardless of the
harm which he may thereby cause to others. An upper landowner may grade and
develop his property and thereby accelerate and collect runoff "without being
required to take into account the consequences to other landowners, who have the


right to protect themselves as best they can." In its extreme form, the common
enemy rule is best described as a neighboring contest between pipes and dikes, "in
which breach of the peace is often inevitable."
The common enemy rule is based on a one-sided and largely archaic view of
absolute land ownership as well as a purported policy of land improvement and
economic expansion. There is a major question, however, whether releasing upper
developers and landowners from liability for drainage promotes investment and
construction. It should be noted that a major proportion of Pennsylvania's
industrial, commercial, and residential development has occurred in the flatlands
of river valleys, lands which are particularly vulnerable to increased flood hazards
engendered by accelerated runoff from suburban development higher in the
watershed. The common enemy rule threatens, rather than encourages, the major
urban land use investments. Even developers who own the crest of hills can find
little solace in the common enemy doctrine when their downslope neighbors decide
to build walls to shut out the drainage from above.

Reasonable Use Rule

In response to the rigid and often irrational results of the civil law and
common enemy rules, many other states expressly or implicitly have adopted a
"rule of reason" to govern drainage cases. The rule of reason recognizes that the
rights of each landowner are interdependent. The guiding light of the rule is the
ancient maxim of common law: "Use your own property in such manner as not to
injure that of another." In jurisdictions following the rule, three questions are
fundamental to the reasonable use standard:
(1) Was there a reasonable necessity for the actor to alter the drainage to
make use of his land?
(2) Was the alteration done in a reasonable manner? That is, was due care
taken to prevent injury to another's land? Was the natural drainage
pattern followed as much as possible? Is the artificial drainage system
reasonably feasible?
(3) Does the utility of the actor's conduct reasonably outweigh the gravity
of the harm to others?
The prime attribute of the "rule of reason" is its flexibility in the search for a fair
resolution in each case.

Pennsylvania's Common Law Drainage Rules

In the Nineteenth Century, the Pennsylvania courts set forth the basic rules
which today govern the rights of one landowner to accelerate runoff and divert its
course onto neighboring properties. Faced with a choice between the civil law and
common enemy doctrines, the courts did what courts are often wont to do they
adopted both, applying the civil law rule in rural areas while the common enemy
rule governed drainage in urban centers.
Over the years, these doctrines became convoluted and contorted by a maze
of distinctions and exceptions. Pennsylvania's drainage rules could be summarized
as follows:
1. A landowner may not obstruct or divert the natural flow of a
watercourse or natural drainage course to the injury of another. In

1 Maloney and Plager, Diffused Surface Water: Scourge or Bounty?, 8 NAT. RES.
J. 72, 76 (1968).


urban areas, "natural drainage course" is narrowly interpreted to
include only streams with well-defined channels and banks. In rural
areas, the term natural drainage course is more broadly construed,
apparently including the flow and direction of diffused surface waters.
2. A landowner may, at least in urban areas, obstruct the flow of diffused
surface waters not flowing in a natural watercourse if done in a non-
negligent fashion.
3. A landowner may not artificially collect or concentrate unusually large
quantities of diffused surface waters and discharge them onto
adjoining properties.
4. A landowner may not divert onto another's land runoff from an area
which would not naturally drain in that direction.
5. A landowner may not unreasonably or unnecessarily change the
quantity or quality of water drained in a natural channel.
6. A landowner may, in the non-negligent, "natural and reasonable"
improvement of his land, through grading and building, increase the
runoff flow of diffused waters or waters drained in a natural
watercourse, subject to the rules against diversion, collection and
7. A landowner may be held responsible for negligent alteration of or
interference with drainage, particularly through failure to properly
maintain drainage structures. However, Pennsylvania courts have
traditionally accorded deference to relatively unrestricted develop-
ment of land. Few decisions involving developers and injured
neighboring landowners have found liability based on negligence.

After nearly 200 years of such etherial logic, to the dismay of our judges
(and delight of the bar), drainage problems have not diminished, but multiplied.
Large residential subdivision, commercial and industrial development brought the
common law rules to nearly their breaking point by the late 1950's.
Faced with a flood of stormwater suits, in 1959 the Pennsylvania Supreme
Court declared the need for "a new attitude." But rather than enunciating a broad
reform of the drainage laws, the judges carved a new exception, and so created
the "shopping center rule." Put succinctly, a landowner engaged in "artificial"
improvement of land (such as shopping centers and other large developments) must
take reasonable precautions to control and discharge accelerated runoff and
protect adjoining lands from avoidable harm.
We must add to this jumble of doctrines the distinct, and often peculiar,
rules applicable to public facilities such as schools and roads and the design and
maintenance of storm drainage and flood control works.
Municipalities are authorized to execute a wide variety of public improve-
ments, including the grading and paving of streets, installation of bridges, and
construction of schools, which may accelerate or alter stormwater runoff. Quite
often these projects are extensive and cumulative in nature and have a serious
impact upon drainage patterns and neighboring lands.
The common law rules applicable to runoff from public facilities parallel
private drainage law doctrines. Following the common enemy doctrine,
S Pennsylvania cases hold a local government generally will not be liable for
m increased runoff occasioned by the non-negligent "natural and proper development
of a municipality" or construction of public facilities. A municipality may not,
however, increase the amount of land draining in a particular direction, collect
and divert runoff from its natural course, or obstruct a watercourse. Early cases,
further, distinguished between negligence in the design of public improvements (no
liability unless property "taken") and negligent execution of projects (liability



liability imposed for tortious conduct). The Pennsylvania cases, now almost 50
years old, incredibly deny the existence of any duty to take reasonable care in
planning public improvements in order to avoid damages to private property and
erect monumental barriers to recovering for negligent design of municipal
projects. With the abolition of governmental immunity to suits for tortious
conduct, it is questionable whether such arbitrary doctrines and distinctions still
Similarly, a number of statutes authorize counties, cities, boroughs and
townships to design, install and maintain storm sewer, drainage and flood control
Works. Before the abandonment of the governmental immunity doctrine, cases
involving municipal stormwater systems evolved a checkerboard of distinctions
and exceptions. A municipality had no duty to design and construct adequate
storm drains or to exercise "the best" engineering skill in the selection of a
drainage plan so as to avoid unnecessary injury to its citizens. Yet, a municipality
could be held legally accountable for (1) installation of an inadequate culvert or
sewer which obstructed the flows of a "natural stream"; (2) artificial collection
and discharge of surface runoff "in a body" upon private land; (3) negligent
construction of drainage systems contrary to plans or in an unworkmanlike
fashion; or (4) negligent failure to inspect, maintain and clear debris from storm
sewers, culverts and other water structures.
Abolition of local governmental immunity in 1973 portends a potential
overhaul of laws applicable to municipal drainage and stormwater activities.
Negligent design can no longer be distinguished from negligent construction and
maintenance. However, neither legislation nor recent court decisions have as yet
clearly enunciated the scope and extent of each municipality's duty to undertake
stormwater management projects.
Finally, we should note that Pennsylvania cities, boroughs, townships and
counties are authorized by State statute to prepare and adopt "comprehensive
plans" for community development, zoning ordinances, and subdivision and land
development ordinances and regulations. These plans and ordinances may include
specific provisions and regulations relating to drainage and stormwater control.
Neither municipal nor county governments are required to enact land use plans
and controls; exercise of their development regulatory powers is optional. On the
other hand, if a municipality or county adopts a subdivision ordinance and assumes
the role of reviewing development plans, two issues arise: (1) what duty does the
Community have to adopt and administer adequate storm drainage standards, and
(2) what duty does the municipality have to enforce such standards if adopted.
A recent case decided by the Federal courts sitting in Pennsylvania suggests
the legal2tangle created by the interplay of these rules. In Breiner v. C&P Home
Builders, a United States District Court adjudicated a complaint instituted by
armowners in Lower Macungie Township against a developer, his engineer, and
municipal officials in neighboring Alburtis Borough for negligently failing to
control stormwater drainage from a large home subdivision. The developer
substantially increased the runoff onto the plaintiffs' farms by grading the land
and filling a marshy retention area. The resulting periodic flooding and erosion of
neighboring fields precluded plaintiffs from using substantial portions of their
lands for the cultivation of strawberries. The court could have relied upon the
unlawful collection of diversion rules. Instead, it interpreted modern Pennsylvania
cases as imposing liability upon a mere showing that the upper landowner, by
intent or negligence, unreasonably or unnecessarily increased the flow of surface

2 398 F. Supp. 250 (E.D. Pa. 1975), affd in part, 536 F. 2d 27 (3d Cir. 1976).


water. The court readily found negligence as well as substantial evidence of
intent. Since the developer in Breiner had received clear warnings from his
neighbors of the potential accelerated runoff problem, there was no question that
the harm resulting from the development's drainage could have been foreseen and
The district court also held Alburtis Borough and its engineer liable for
approving the developer's subdivision plan without adequate drainage controls in
violation of a borough regulation requiring the installation of drainage systems
upon development. The Third Circuit Court of Appeals, however, reversed the
judgment of the District Court against the Borough.
The Circuit Court found that the borough ordinance required that the
subdivision plan show artificial drainage works only if proposed by the developer
and permitted the borough to demand the installation of drainage systems in its
discretion. Therefore, the court concluded that if the developer did not propose a
"mechanical drainage system" and the borough did not insist upon drainage facility
installation, submission of a drainage plan was not mandated by the ordinance and
approval of the subdivision plan without drainage details did not violate the
borough's ordinance.
More surprising was the court's suggestion that, even if the borough had
flagrantly violated its own ordinance by failing to require adequate drainage, it
would have owed no duty to injured landowners lying outside its municipal
boundaries. Essentially, the court ruled (1) that the ordinance was intended to
benefit directly the borough's residents and property, and not to protect
landowners outside the municipality; (2) that the ordinance imposed no duty on the
borough to protect land in adjacent areas from surface water drainage; and (3)
that, while the borough's officers and employees were compelled to exercise due
care in approving subdivision plans, they were under no obligation to review the
final plan for potential adverse effects on areas outside the municipal limits.
The decision stands as an open invitation to city, borough and township
officers to disregard the negative drainage effects of development and acceler-
ated stormwater upon adjacent communities which have no political voice in the
decisions affecting their lands and no legal recourse against a callous disregard of
their interests. In the absence of any law requiring coordinated stormwater
planning and management throughout each watershed, the balkanization of
municipal governments in Pennsylvania (which has over 2,700 cities, boroughs and
townships) has resulted in increasingly serious intermunicipal drainage conflicts
and worsening flooding conditions.

Statutory and Administrative Programs Related to Stormwater

In addition to the common law, a number of statutory and administrative
programs affect the stormwater picture in Pennsylvania. These include, of
course, State and Federal flood control and stream improvement projects
(encompassing both structural and non-structural measures), the National Flood
Insurance Program, and accompanying regulation of flood plain development by
local governments.
Since 1972, the Pennsylvania Department of Environmental Resources (DER)
has administered regulations adopted under the Pennsylvania Clean Streams Law
to control erosion and sedimentation resulting from earthmoving activities. The
rules require plans for erosion control for all earthmoving, and permits for most
large projects. Although the technical criteria for erosion control measures are
primarily aimed at pollution prevention, many of the standards relating to
collection of runoff, sedimentation basin design and velocity control have a direct
relation to regulating accelerated drainage and managing stormwater. The


program's use as a stormwater management tool is enhanced by cooperative
arrangements between DER, county conservation districts, and the USDA Soil
Conservation Service in administering the rules. Several local governments and
conservation districts have combined erosion control, watershed protection
projects and flood plain management into a relatively sophisticated approach to
stormwater problems. Unfortunately, such a holistic approach has not been
adopted across the Commonwealth.
The Department of Environmental Resources also regulates and issues
permits for water obstructions and stream encroachments for most
Commonwealth waters under the 1913 Water Obstructions Act. The Act, passed
after devastating floods, is aimed at minimizing dangers to life and property
caused by improper design and maintenance qf structures or obstruction of flood
flows. Although the Act refers to encroachments "along streams," this potential
jurisdiction has not been defined or generally extended to cover all flood plain
development. Similarly, while the Act regulates activities which change "the
course, current or cross-section of streams," DER has not broadly applied the Act
to development which increases the quantity or velocity of runoff flowing to and
in watercourses. The core of the statute is aimed at physical structures such as
dams, culverts and bridges, and channel modifications which may impede
streamflows and exacerbate flood damages.
In the past Pennsylvania, like many other states, relied heavily on structural
measures such as dams, dikes, and storm sewer systems to address the
stormwater problem. While these projects have clearly had a beneficial impact
upon flood damage problems, a combination of increased runoff from upstream
development and more damage-prone investment in the flood path has eroded the
effectiveness of Pennsylvania's current structural control measures.
Moreover, it appears flood control efforts have given many communities
behind walls or downstream of dams a false sense of security. State Water Plan
analyses of over 1,200 flood prone areas indicate that more structural projects are
unlikely to resolve the problem in cost-effective fashion.
For many communities, the cost of modern dams and dikes far exceeds the
damages which they could ameliorate. Moreover, the environmental and social
impacts of dams and dikes virtually precludes universal use of these measures.
Other solutions must be sought and implemented to bring the Commonwealth's
flood damages under control.

The Goals of Future Stormwater Policy

The State Water Plan's assessment of our current programs and problems
suggests the following major goals for the Commonwealth's future policy:
a. A more holistic, coordinated approach to stormwater management is
essential, The problem cannot be neatly segmented into questions of draiage
rights, water obstruction regulation, flood control and flood plain management.
These are all facets of the same basic issue: how shall we manage stormwater and
its consequences so as to avoid injury to persons and property and to promote
important economic, social and environmental values. This does not necessarily
mean that one institution, agency or level of government must take exclusive
control of all aspects of managing storm runoff and its consequences. It does
require, however, a more integrated approach by all concerned, buttressed by
clearly enunciated public policies and laws.
b. Prior planning is a prerequisite to any rational stormwater manae-
ment program. It is obvious that our current ad hoc approach to resolving
stormwater problems is self-defeating. After land development is completed, it is


difficult to undo the effects on drainage. Post-development structural remedies
are almost always far more expensive and less successful than the options
available if prior proper planning had been undertaken by developers and
c. Stormwater management policy should conserve natural drainage
characteristics as part of an economically efficient and equitable program. As a
fundamental goal of stormwater law, each person should use his land so as not to
injure his neighbors. The prime objective in all land development should be to
retain to the maximum extent possible natural drainage characteristics and avoid
increasing the peak quantity and velocity of stormwater discharges. A policy
which requires that all owners take reasonable care to control runoff does not
impose undue financial burdens on economic development. Creative use of natural
characteristics, on-site controls, and community drainage systems can save
millions in flood damages at less cost than our current unprofitable war of pipes
and dikes.
d. Stormwater problems must be addressed on a watershed basis.
Intermunicipal conflicts must be resolved for any solution to be successful.
Stormwater problems arise in and affect hydrologic units drainage watersheds.
Up to now, most of these problems have been addressed on a different basis by
municipalities acting independently and often at counter-purposes with their
neighbors. No one community alone can solve the stormwater management
problems. Unfortunately, those municipalities which are most vulnerable often
have the least control over the activities threatening their lives and property.
Only a watershed approach can hope to resolve or prevent these conflicts and
assure harmonious, productive and safe economic development in all communities.
e. Drainage rules should retain essential flexibility, while providing
sufficient certainty to guide private and public development decisions. without a
stable, clear and understandable set of rules, private parties and public bodies
cannot adequately design and tailor their decisions affecting drainage. Moreover,
if Pennsylvania's law continues to provide little or no predictable security against
avoidable stormwater damages, the economic well-being of land investments may
become increasingly problematic.
f. Stormwater and flood plain management should be sensitive to and
compatible with the attainment of other water resource and environmental
objectives. Particular sensitivity should be given to the relation between
stormwater management and ground water, water quality and pollution control. If
stormwater management pursues the traditional trend of larger collection systems
and channels to dispose of runoff as fast as possible, there is little doubt that
ground-water availability will be impaired and stream sedimentation increased.
On the other hand, creative use of retention techniques, natural ponding and swale
systems, and similar approaches to prevent accelerated runoff may ameliorate
stormwater problems, enhance recharge of ground-water aquifers, and control
pollution. Flood plain planning and management should not only be viewed as a
means for reducing flood damages, but also for protecting the natural functioning
and environmental and economic values of flood plains. Land development
decisions in flood plains should recognize both hazard potentials and the
agricultural, recreational, open space and aesthetic benefits of riverine areas.
g. Stormwater management considerations should be an integral part of
land use planning and development programs. Stormwater management is both a
water resources issue and a land use problem. It is not uncommon for land use
planning and development regulation on the local, county and state level to
overlook or give only limited attention to stormwater and flood plain constraints.
Until stormwater and flood plain management is brought together with land use
planning, the solution to Pennsylvania's drainage and flood problem will remain


h. Future stormwater management programs must be administerable, and
implemented through realistic manpower and budgetary resources. Our current
melange of laws and programs related to stormwater management and flood
damage reduction is administered by the courts and a large variety of agencies,
few of which have the resources to realistically approach the problem or
implement their assigned tasks. A private citizen confronting a drainage problem
is provided with virtually one alternative: to spend years and fortunes in
protracted litigation with only a modest chance of effective relief. Clearly the
solutions won't be simple or cheap. But with annual flood damages in Pennsylvania
averaging $100,000,000 since 1936, an allocation of resources to effect a rational
stormwater and flood plain program would seem an attractive public investment.

The Prospects for Reform

A package of legislation is currently pending in the Pennsylvania General
Assembly which would undertake significant reforms toward achievement of these
goals. These bills would, among other steps, provide for:
(1) Development of guidelines by the state for the preparation of
storm water plans;
(2) Preparation of stormwater plans for each watershed by counties with
the participation of affected municipalities;
(3) Inclusion of stormwater performance standards and flood plain
management criteria in local subdivision and building code ordinances;
(4) Coordination and potential merger of stormwater and erosion control
programs, including possible delegation of current State erosion and
sedimentation regulations to county and local agencies;
(5) Requirements that state and public utility projects be consistent with
stormwater plans adopted for the applicable watersheds;
(6) Establishment of state technical and financial assistance to aid local
governments in preparation and implementation of plans.
The bills recognize that rational stormwater management will require clear,
equitable and understandable drainage rights rules defining the duties of
landowners and developers in the control of runoff. Such rules can both aid in
implementing the planning and management programs discussed previously, and
are necessary to resolve the residue of conflicts between neighbors which will
arise even if such general programs are developed to minimize major drainage
Reform of drainage law through case-by-case court pronouncements is
difficult. Courts are ill-equipped to consider the basic public policy issues and
Establish broad programs to deal with the stormwater, flood control problem. Our
water planning efforts, therefore, are concentrating primarily on the options for
legislative reform of drainage laws, including a restatement of each landowner's
duties to take reasonable care in designing and installing drainage systems so as
not to change the peak rate, concentration time, and direction of stormwater
drainage to the substantial injury of others. The Department is also studying
alternative arrangements to provide more effective, expeditious resolution of
future drainage disputes. In the place of prolonged court litigation, consideration
is being given to expanded use of mediation and arbitration procedures.


Each year Pennsylvanians experience the frustrating dividends of storm-
water mismanagement. From eroded fields and inundated basements to disastrous
floods, every community and watershed is confronted by and contributes to the


Commonwealth's mounting drainage and flooding problem. Pennsylvania has
consummated many appointments with disaster. Billions of dollars in public and
private investment have gone with the water to the sea. We have advanced
technically a great deal in the past helf century in our understanding of the
stormwater issue and its potential solutions. Our legal, policy and institutional
framework has been much slower to evolve and address the challenge. We may
never be able to resolve completely our drainage and flood control problems, but
common sense and rational legal reforms could go far toward ameliorating the
rising tide of stormwater conflicts.

For a fuller exposition on Pennsylvania drainage law, see R. Weston, Gone With
The Water Drainage Rights and Stormwater Management in Pennsylvania, 22
VILLANOVA L. REV. 901 (1977).


By James W. Kirby,1 F. ASCE


The 17 western states for the most part are arid or semiarid. Set-
tlement of the area did not take place on a large scale until about
1880-1900. The settlements occurred principally in the river
valleys of the low lands and were predicated upon irrigated farming.
Irrigation developments appropriated most of the available surface
water thus precluding later use by other interests. There is in-
creasing pressure to reallocate some of this irrigation water to
higher uses. Principally because of the production of subsidized
crops on subsidized irrigation projects and the exclusive control
of most of the surface water resources of the area, irrigated
agriculture is increasingly out of favor with large segments of the
population and particularly with environmentalists.

The last decade has witnessed the passage of substantial and sweeping
environmental laws that have a very profound effect upon irrigation
and drainage developments. The full effect of this legislation is
still not understood by the average irrigation manager or irrigation
farmer. It is the purpose of this paper to list the most important
laws together with a very brief explanation of their effect upon
irrigation and drainage operations.


Irrigation in the arid and semiarid portions of the southwestern
United States has been practiced for centuries by Pueblo Indians.
Traces of their irrigation water conveyance systems may still be
seen in the states of Arizona and New Mexico. Spanish colonists
entered what is now the United States in 1598 near El Paso,
Texas. These colonists settled on the upper reaches of the
Rio Grande. In subsequent years, the Spaniards colonized
other areas in Texas, Arizona, and California. These early settle-
ments were, for the most part, sustained by irrigated farming.
Many of these colonists came from irrigated areas of Spain and were
proficient with irrigation technology and water law. After the Mexican

1Project Superintendent, Rio Grande Project, Bureau of Reclamation,
El Paso,. Texas.


war, the United States gained vast areas of new territory which
comprise the southwestern states. American settlement of these
territories ceded by Mexico was rapid. In 1847, the Mormons led by
Brigham Young settled in the valley of the Great Salt Lake in what
is now the state of Utah. These settlers immediately began irrigated
farming. Settlement of the west by others continued at a surprising
rate considering the hazards and severe frontier life. The Indian
wars were ending and the railroads arrived beginning in the 1880's.
Settlement then attained "land rush" proportions.

By the turn of the century, most of the arable river valleys of the
western states had been settled and organized into irrigation devel-
opments. Many of these early developments were poorly designed
and experienced high-rates of system failure. Additionally, intra-
state and interstate controversy arose over the division of water in
the respective stream and river basins. This problem was quite
severe, and it rather rapidly resulted in an extensive body of water
law and in a number of interstate compacts.

The Federal government soon responded to the need for well-engineered
and planned irrigation works in the arid and semiarid western states
and territories with the passage of the Reclamation Act of June 17,
1902 (32 Statute 388). This act, subsequently amended many times,
provided for the orderly development of the water resources of the
17 western states. The initial and still predominant purpose for
reclamation works was to develop available surface waters for irri-
gation. Settlement of unoccupied Federal lands in the west was
another primary objective of the Reclamation Act. The act was later
amended to provide for production and transmission of electrical
energy and to provide municipal water. The extent of the reclamation
program is evident in the millions of acres of productive irrigated
farm land in the western United States.


From the foregoing, it i.s seen that irrigation development in the
western states after 1880 was rapid and extensive. Competition for
water was so intense that virtually all of the available surface
water in the 17 western states was appropriated for use by irrigated
agriculture. Many streams were then and are now diverted to zero
discharge, flowing only during times of floods or accident to irri-
gation system facilities. A classic example of this condition may
be seen in Phoenix, Arizona, where the Salt River is generally com-
pletely dry and below El Paso, Texas, where the Rio Grande is usually
dry for a distance of over 200 miles due to upstream irrigation
diversions. Water is perhaps the most precious natural resource in
the western United States, and it is largely and quite jealously
held by irrigated agriculture to the general exclusion of industry,
municipalities, and recreationists. Therein lies a basic problem
that is generating controversy.

1 1


The question of growing surplus crops by irrigated agriculture on
subsidized Bureau of Reclamation projects has been mitigated some-
what in recent years by increased worldwide demand for food and
fiber. It seems quite certain that the predicted world food crisis
is imminent, and the surplus irrigated commodity question will no
longer be a viable factor.

A problem currently in the embryonic stage is the forthcoming com-
petition for water now controlled by irrigated agriculture that will
be needed for the beneficiation of coal and oil shale into trans-
portable forms of energy. It is obvious that irrigated agriculture
will be compelled to provide the necessary water for this energy
conversion by modernizing antiquated systems and retiring marginal

The universal problem of degradation of water quality in western
streams by irrigation return flows as yet defies reasonable solution.
On the Colorado River this problem resulted in an international
controversy between the Republic of Mexico and the Unites States
that will cost the taxpayers of the United States hundreds of mil-
lions of dollars before a solution has been effected.

Irrigated agriculture is no longer the economic foundation for many
areas of the west. Generally, however, irrigated agriculture con-
trols the water resources available to the area thus hindering or
precluding other and higher or more desirable uses for water. Here
again, agriculture will probably have to share water by more effi-
cient use or ultimately lose their water rights.

For many years, it has been customary to channel rivers and streams,
clear phreatophytes from river banks, divert streams to zero flow,
drain reservoirs, drain wetlands, destroy habitat used by wildlife,
and take other similar measures in the name of enhanced runoff
yield or better irrigation efficiency. These and similar measures
have absolutely enraged the very considerable body of environmental
groups. We in the irrigation business who until a decade ago con-
sidered ourselves to be true conservationists now find ourselves
opposed on every front by a consortium of environmentalists that
wield extensive political power at state and Federal levels of

Irrigated agriculture in the west is at a crossroads. The econom-
ically viable projects will survive. Many will have to undergo
extensive modernization to achieve optimum efficiency and share the
resultant salvaged water with other appropriators. The marginal
developments will most likely be phased out and their water diverted
to more desirable uses. It would appear that the Bureau of Recla-
mation should, in the short-term future, redirect planning resources
to existing projects to effect more efficient resource utilization.



Irrigation and drainage developments, together with other segments of
industry and agriculture, have been responsible for significant
aberrations to the quality of the environment. The Congress, in
response to outpourings of complaint and frustration from a sub-
stantial fraction of the population about dirty air, dirty water,
and ravaged landscapes has passed an astoundingly comprehensive and
restrictive body of environmental laws. These laws have profound
effects on virtually every segment of industry and agriculture.
The Congress, in spite of major efforts by industry and agriculture
to mitigate these laws to something less restrictive, has been very
reluctant to do so. There will, no doubt, be some refinement when
the laws are too restrictive, but for the immediate future, we may
assume that we will be working with these laws as they are currently
written and interpreted.

A number of these laws directly affect the planning, construction,
and operation of irrigation and drainage projects. It is-necessary
that planners, designers, constructors, and operators of such pro-
jects be familiar with the applicable laws. Many things that were
commonplace for a number of years and routinely done are no longer
permissible under these new laws. Conversely, the laws afford
irrigation districts water quality protection from degradation by
upstream users.

The Environmental Protection Agency (EPA) is the Federal agency with
responsibility for administering the provisions of most of the
environmental legislation. Each of the 50 states also has an
environmental agency cooperating with the EPA.


The Federal environmental laws that impact most directly on irri-
gation and drainage projects are listed and briefly discussed as

The National Environmental Policy Act (NEPA) (P.L. 91-190) which was
signed on January 1, 1970, is the foundation of Federal environmental
legislation. It sets out general Federal environmental policy and
contains action-forcing provisions affecting Federal agencies. The
most important of these provisions requires that an environmental
impact statement (EIS) be prepared for "major Federal actions
significantly affecting the quality of the human environment."

The national environmental policy established by the act is set
forth with the caveat that this policy is to be carried out through
means "consistent with other essential considerations of national
policy." Within this constraint, it is Federal policy to:

(1) fulfill the responsibilities of each generation as trustee
of the environment for succeeding generations;


(2) assure for all Americans safe, healthful, productive and
aesthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environ-
ment without degradation, risk to health or safety, or
other undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects
of our national heritage, and maintain, wherever possible,
an environment which supports diversity and variety of
individual choice;

(5) achieve a balance between population and resource use
which will permit high standards of living and a wide
sharing of life's amenities; and

(6) enhance the quality of renewable resources and approach
the maximum attainable recycling of depletable resources.

The act directs that to the fullest extent possible Federal agencies
should carry out their programs in accordance with these broad
policy aims. The required case-by-case analysis of proposed agency
actions through an EIS is the act's most effective measure of
ensuring that this is done. By means of this EIS process, environ-
mental consequences must be considered before action is taken. Each
EIS must include a detailed statement on

(1) the environmental impact of the proposed action,

(2) any adverse environmental effects which cannot be avoided
should the proposal be implemented,

(3) alternatives to the proposed action,

(4) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-
term productivity, and

(5) any irreversible and irretrievable commitments of
resources which would be involved in the proposed action
should it be implemented.

The EIS is first prepared in draft form and made available for
comment to all Government agencies with relevant expertise and
jurisdiction and to the public. After full consideration of all
comments and any additional information received, the agency then
prepares a final EIS which accompanies the proposal for action
through the decision-making process.

As has been indicated, the act specifies that the EIS requirement
applies to major Federal actions significantly affecting the quality
of the human environment. "Major Federal actions" include not only
actions directly undertaken by Federal agencies, but also Federal
decisions to approve, fund, or license activities which will be


(5) ...areawide waste treatment management planning processes
be developed and implemented to assure adequate control of
sources of pollutants in each State; and

(6) ...that a major research and demonstration effort be made
to develop technology necessary to eliminate the discharge
of pollutants into the navigable waters, waters of the con-
tiguous zone, and the oceans.

The regulatory and grant-in-aid programs established by the 1972
amendments to implement these new national policies are innovative
and far-reaching. Primary responsibility for implementation resides
with the U.S. Environmental Protection Agency (EPA), but state-
federal cooperation is an essential aspect of the total effort.

The regulatory program created is divided into two complementary
parts as a result of the basic distinction made by the act between
point sources and nonpoint sources of pollution. A point source is
any confined, discrete conveyance such as a pipe, ditch, or even a
floating craft. Typical point sources include discharges via a pipe
of effluent from industrial works or municipal sewage treatment
plants or an agricultural drain discharging irrigation return flow.
Uncollected runoff from an agricultural area or a mining operation
is a typical example of a nonpoint source of pollution. The water
pollution caused by such nonpoint sources is extremely serious and
has been estimated to account for perhaps half of our total water
pollution problem.

For point sources, the act provides the following regulatory scheme:

(1) By July 1977 all dischargers other than municipal sewage
treatment plants must have achieved effluent limitations
based upon the "best practicable" pollution control tech-
nology currently available, and public treatment works must
have achieved limitations based upon secondary treatment.

(2) By July 1983 nonmunicipal point sources must have the "best
available technology economically achieveable" in operation,
and municipal sewage treatment plants must have installed
the "best practicable waste treatment technology."

(3) Special effluent standards for toxic water pollutants must
be based solely on environmental and safety considerations
and must be met substantially before the 1977 deadline.

(4) New source performance standards based upon the "best
available demonstrated control technology" must be met by
all new facilities or installations.

(5) Special effluent restrictions for particular dischargers
based upon existing water quality standards must be em-
ployed whenever it is apparent that application of the
toxic and technologically based standards described above
will not achieve water quality standards in a given basin.


(6) These effluent restrictions must be applied to point
sources through a permit program--the National Pollutant
Discharge Elimination System (NPDES)--administered either
by EPA or the states. The 1972 amendments contain strong
monitoring and enforcement provisions, including provisions
for citizen suits, for ensuring that permit conditions are
actually met.

The act's regulatory program for controlling nonpoint source pollu-
tion is set out primarily in Section 208. The provisions of this
section must be carried out either by designated areawide agencies
or by the state. Comprehensive plans must be prepared which provide,
among other things, for (1) the control of nonpoint source pollution,
(2) the protection of groundwaters, and (3) the regulation of the
location and construction of any facilities which may result in pol-
lution. These plans must be submitted to the Administrator of EPA
for his approval and, once approved, must be implemented by appro-
priate regulatory agencies. The overall purpose of Section 208
planning is to ensure that the act's goal of "water quality which
provides for the protection and propagation of fish, shellfish, and
wildlife and provides for recreation in and on the water" is
achieved by 1983.
Prior to the passage of the 1972 amendments to the Federal Water
Pollution Control Act, it was unlawful to put any refuse matter
(except liquid municipal sewage effluent and runoff from streets)
into any navigable water or tributary thereof without a permit from
the U.S. Army Corps of Engineers. This permit program, which was
authorized under the so-called "Refuse Act," was replaced by the
permit programs established under Sections 402 and 404 of the 1972
amendments. Although the Refuse Act itself is still on the books,
it has been almost completely superseded by-the Federal Water Pollu-
tion Control Act, as amended in 1972.

The Army Corps of Engineers is still responsible under legislation
enacted prior to the 1972 amendments for issuing permits for dredging
and filling operations and construction activities in navigable
waters. The following activities, variations of which are often
involved in land development projects, are unlawful without a permit
from the Corps of Engineers:

(1) Construction of a dam, dike, bridge, or causeway over or in
any navigable water.
(2) Excavation, filling, or in any manner modifying any lake or
channel of any navigable water.

It should be noted that the Army Corps of Engineers is subject to the
requirement of the National Environmental Policy Act (NEPA) that
Federal agencies must prepare an environmental impact statement
before taking any action that significantly affects the environment.
Thus, for example, before issuing a permit for the construction of a
dam, the Corps of Engineers must prepare an environmental impact state
ment which must be available for public comment.



Section 404 of the 1972 amendments gave new responsibilities to the
Army Corps of Engineers in the regulation of dredging and filling
operations. It established that no dredged or fill material can be
discharged into the waters of the United States unless a Section 404
permit has been obtained from the Corps of Engineers. While earlier
statutory provisions pertaining to dredging or filling in navigable
waters focused on the possible interference of such operations with
navigation, the focus of Section 404 is on the discharge of materials
into receiving waters or surrounding wetlands and on the biological
effects of such discharges. In some respects the new Section 404
permits overlap dredge and fill permits required by earlier legisla-
tion, but they differ in their prime concern with water quality and
their applicability to wetlands. Thus the Section 404 program does
not supplant the older permit program, but is in addition to it.

Waters of the United States have been very broadly defined in this
legislation to the end that this new definition eliminated the
requirement of navigability, leaving only the requirement that the
pollution of waters covered by the act be capable of affecting inter-
state commerce.

The 404 program developed by the Corps of Engineers and EPA will be
implemented in three phases. In phase I, which began when the
Corps regulation was promulgated, 404 requirements are operative for
all coastal waters and all navigable waters already regulated by
the Corps, as well as for all wetlands contiguous or adjacent to
these waters. In phase II, which began on July 1, 1976, regulation
is extended to all primary tributaries and their contiguous or
adjacent wetlands and to all .lakes. Phase III, which was effective
on July 1, 1977, requires full regulation of all discharges of
dredged or fill materials into the waters of the United States.

An important mechanism established by the 404 regulation in addition
to individual permits for particular discharges is the general permit.
The latter permit may be issued for certain clearly described cate-
gories of structures or work and must prescribe the conditions to be
followed in the construction of such structures or the performance
of such work. Once a general permit is issued, those wishing to
carry out activities which it covers would not have to obtain an
individual permit. Only activities that have minimal environmental
effects, either singularly or cumulatively, may be authorized by a
general permit. While this device is an effective means of making
the 404 program workable, the regulation should have required that
all those operating under a general permit register their activities
with the Corps of Engineers. Instead, except for mandatory regis-
tration when a general permit does not designate a specific body or
bodies of water, the interim regulation leaves this type of reporting
to the discretion of the district engineer.

The standard procedures for the processing of applications for 404
permits require the district engineer to issue a full public notice
and-provide the opportunity for public comment on the application.
If anyone who has an interest which may be affected by the issuance
of a permit for a discharge requests a hearing, or if another state


objects to the issuance of a permit on the basis of water quality
and requests a hearing, the district engineer must arrange a public
hearing in accordance with Corps of Engineer regulations. If no
hearing is to be held, the district engineer may still decide to
hold a public meeting to discuss the application. The appropriate
district engineer must also determine at the earliest possible time
whether an environmental impact statement must be prepared on a pro-
posed activity for which a permit is requested.

This 1972 act has been further amended by the Clean Water Act of 1977
(P.L. 95-217). This 1977 act contains more than 70 significant
changes or additions to the current Federal water pollution control
program. These changes deal with priorities, grant eligibilities,
planning requirements, state authority, contract enforcement, innova-
tive and alternative technology, public participation, interagency
agreements, local tax procedures, ocean discharges, toxics, combined
grants, cost effectiveness, and many other equally important

Many irrigation developments furnish municipal water. If there are
more than 15 connections or 25 or nfre people using the water, then
the provisions of the Safe Drinking Water Act of 1974 (P.L. 93-523)
are applicable. The law directed the U.S. Environmental Protection
Agency to establish minimum national drinking water standards. These
standards set limits on the amounts of various substances sometimes
found in drinking water. Even noncommunity supplies, such as trailer
parks, camping sites, and roadside motels with their own.water
supplies will also be covered by regulations.

Most public drinking water systems, particularly the larger ones,
already meet the standards; for them, the new national safe drinking
water program is simply added insurance that the quality of your
drinking water will be maintained or improved if necessary.

In the 1974 law, the Congress said it wanted to assure safe drinking
water for all Americans. Congress preferred that the States take on
the responsibility for the new program so that it would build on
existing efforts to protect the public health. Concerned about
costs, Congress also wanted the program to be carried out in a
reasonable manner, one step at a time. Thus, EPA's regulations were
developed by consulting with the States, with water suppliers, envir-
onmentalists, specialists in related fields, and with the public.

To be given primary responsibility for the program, each State must
adopt drinking water standards at least as strict as the national
standards. (A State may set stricter standards if it wishes.) Each
State must also be able to carry out adequate monitoring and enforce-
ment requirements. If a State cannot or does not do so, EPA will
step in and conduct the program itself.

To help the States meet their responsibilities under the program,
Congress directed EPA to provide them with financial and technical


assistance. Congress also provided time for the States and water
supply systems to get ready to implement the new regulations. But
despite these efforts, all water supply systems will not be able to
meet the standards.

Some smaller systems may not initially be able to afford additional
treatment as easily as larger systems and may apply to the State for
an exemption. Exemptions may be granted until January 1981 to give
a system time to seek funds or to develop a plan to serve its users
from another water source. A system may have until January 1983 if
it has agreed to become part of a regional public water system that
can afford the needed treatment.

Other systems may not be able to meet the standards because of the
poor quality of the raw water coming into the system even. though
they are using treatment methods available to larger systems at a
reasonable cost. The supplier may then apply for a variance.
Although no time limit is placed on this, Congress felt most systems
requiring a variance would seek an alternate water source, or the
quality of the raw water or the treatment methods would improve to
enable them eventually to meet the standards.

Whenever a supplier applies for an exemption or variance, public
hearings must be held so that citizens being served by the system
can voice their views.

In no case will an exemption or variance be granted if there is any
risk to public health.

Refer to the law for the numerical limits and values for the various
constitutent standards.

The Federal Environmental Pesticide Control Act of 1972 (P.L. 92-516)
has an important bearing upon irrigation and drainage operations.
The provisions of this act are administered by EPA. Basically, the
act regulates the use of herbicides and pesticides used in the con-
trol of ditchbank vegetation, aquatic vegetation, burrowing animals,
mollusks, and other problems associated with operating an irrigation
and drainage project. Since technology in this field is changing
rapidly, it is suggested that the state environmental agency be
contacted from time to time to keep an up-to-date list of approved

The Clean Air Act of 1970 (P.L. 91-604) has some impact on irrigation
developments. This law is an important consideration in the clearing
of land of vegetation, construction, burning or searing of ditchbank
vegetation, and smudging for temperature control.

The act requires the Administrator of the U.S. Environmental Pro-
tection Agency to establish national ambient air quality standards
for six major air pollutants: carbon monoxide, particulates, hydro-
carbons, sulfur oxides, nitrogen dioxide, and photochemical oxidants.
These standards set the maximum concentrations of each pollutant to
be allowed in ambient air--that is, in the air we breathe.


Congress requires that two types of ambient standards be designated:
(1) "primary standards" to establish the level of air quality
necessary, with an adequate margin of safety, to protect human
health; and (2) "secondary standards" to safeguard values pertaining
to the public welfare, including plant and animal life, visibility,
buildings, and materials. The primary standards were to be attained
by mid-1975 or by 1977 where extensions have been granted. The
secondary standards must be attained within a "reasonable time," the
exact determination of which is left to the EPA Administrator.

The act requires each state to develop implementation plans to attain
and maintain the Federal standards. These plans must be submitted
to EPA for approval, and Congress set forth in the act itself
specific requirements which each plan must meet in order to be
approved. Where the EPA Administrator determines that a state plan
or parts of a plan, is not approvable, he is required by the act to
promulgate Federal regulations to correct deficiencies.

To assist in the development and implementation of state plans, EPA
has divided each state into air quality control regions. In each of
these geographical regions, a unified approach to attaining and
maintaining standards can be developed. On the basis of its air
quality, each region is classified as priority I, II, or III for
each pollutant--with priority I indicating the most polluted air.
To find out what regions have been classified, citizens can either
examine Federal regulations or consult their state air pollution
control agency.

It must be stressed, however, that the designation of different
control regions does not affect in any way the uniform applicability
of all Federal and state standards and regulations. For example,
national primary and secondary air quality standards, emission
limitations, and prohibitions against degradation of clean air are
binding in all areas of the state. The potential of a proposed new
pollution source for causing a violation of such standards or
regulations must always be considered.

Probably most persons in the country are aware of the Endangered
Species Act of 1973 (P.L. 93-205) because of the celebrated snail
darter at the Tellico Dam on the Little Tennessee River. Broadly
stated, the provisions of this act prevent any Federal agency from
undertaking any action which will destroy the habitat or diminish
numbers of any threatened species which is duly proclaimed as endan-
gered. The primary result of the law has been to interrupt or
eliminate construction of dams, reservoirs, and power plants.
However, the operators of existing irrigation and drainage develop-
ments should review the current endangered species list to be sure
that they are not in violation of the law while engaged in routine
operation and maintenance activities.

The Noise Control Act of 1972 (P.L. 92-574) also bears upon irriga-
tion and drainage developments. The act represents the first major
Federal attempt to eliminate excess noise at the design stage of a
wide variety of new consumer products.


The Administrator of EPA is required to develop and publish informa-
tion about permissible levels of noise, and then to set noise stan-
dards for products that have been identified as major sources of

Using the criteria thus developed, the EPA Administrator is required
to set noise-emission standards for products that have been identi-
fied as major sources of noise and for which standards are deemed
feasible. The law requires such standards to be set for products
in the categories of construction equipment, transportation equip-
ment (except aircraft), all motors and engines, and electrical and
electronic equipment. It also grants authority to set for other
products, standards deemed feasible and necessary to protect public
health and safety.

The Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271) effectively
precludes any water resource development projects on the designated
river systems. The national policy is:

that certain selected rivers of the Nation which, with their
immediate environments, possess outstandingly remarkable
scenic, recreational, geologic, fish and wildlife, historic,
cultural, or other similar values shall be preserved in
free-flowing condition, and that they and their immediate
environments shall be protected for the benefit and enjoyment
of present and future generations.

The system is administered by the Secretary of the Interior and where
national forest lands are involved, by the Secretary of Agriculture.
A list of designated rivers is maintained and added to from time to
time by the Congress.

The foregoing laws represent the majority of recent legislation
impacting upon irrigation and drainage developments. However, there
are additional laws that may affect some projects. These are: The
Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.), the
Federal Land Policy and Management Act of 1976 (P.L. 94-579), the
Federal Water Project Recreation Act of 1965 (P.L. 89-72), and
perhaps others.

From the foregoing synopsis of the more important environmental
laws, it can be seen that irrigation and drainage developments,
whether in the planning or operational stage, are confronted with a
whole new set of rules and regulations by which they must operate.
It is imperative that managers of these enterprises become aware of
the substance of these new laws.


Irrigation and drainage projects were extensively constructed in the
western United States by private enterprise and by the Bureau of
Reclamation. Initially these projects were instrumental in the
settlement and early development of the west. Most of the available


surface water in the west has been fully appropriated by irrigated
agriculture. Now, however, competition for this water from munici-
pal, industrial, and recreational interests is increasing. It is
expected that industrial needs for water for the beneficiation of
coal and oil shale into transportable energy forms will eventually
override some irrigation appropriations. Irrigation developments
will have to modernize to enhance resource efficiency or be retired
and their water appropriated to higher use.

Concurrent with the increasing competition for water rights has been
a body of environmental law that has and will profoundly affect
irrigation operations. These new laws are still being revised and
their full impact has hardly begun to be felt. They have imposed
sweeping changes on new irrigation developments as well as existing
ones. Far too many irrigation managers have adopted a "this too will
pass" attitude and remain relatively ignorant of the requirements
that the new laws have imposed. Irrigation managers must become
aware of the environmental constraints and adapt operations to them.
In spite of the sweeping changes in priorities and environmental
constraints, substantial acreages of irrigated agriculture will
survive. They will operate efficiently in full context with environ-
mental expectations and will continue to provide substantial fractions
of America's food and fiber.


Arbuckle, J. G., et al., "Environmental Law Book," Government
Institutes, Inc., Washington, D.C., 1978.

"Land Use Controls in the United States," Natural Resources Defense
Council, Inc., Elaine Moss, Editor, The Dial Press, New York, N.Y.,

Warne, W. E., "The Bureau of Reclamation," Praeger Publishers, New
York, N.Y., 1973.

Bram D. E. Canter*

The fundamental legal perplexity associated with stormwater runoff
pollution abatement is that such runoff occurs primarily as a nonpoint
source of pollution and nonpoint sources of pollution are difficult or
sometimes impossible to quantify, making traditional regulatory mechan-
isms Ineffectual to accomplish runoff pollution abatement. Unlike point
source pollution which can be collected and treated or controlled by the
application of effluent limitations, the control of nonpoint source pol-
lution necessarily involves the regulation of land uses and the restric-
tion of the use of one's land has always created legal controversies.
Officials of the Environmental Protection Agency have estimated that
50% or more of the nation's water pollution is attributable to nonpoint
sources, primarily stormwater runoff (SWR)I. Inadequately managed SWR
Is an increasingly serious environmental problem in my home state of
Florida and across the country. The waters which drain urban streets,
construction sites, agricultural areas and other sites of intensive hu-
man use are often heavily polluted with nutrients, oxygen demanding ma-
terials, suspended solids, trace metals, pesticides, petroleum products
and other deleterious substances. Canals, ditches and pipes carry the
polluted runoff water directly into our streams, rivers, lakes and the
oceans. Natural systems such as forests and wetlands which could help
to purify and filter these runoff waters are by-passed by drainage works
or otherwise destroyed by development.
The natural hydrologic characteristics of SWR can be severely altered
by the land-disturbing activities of humans. When native vegetation is
removed and replaced with more impervious surfaces, less water Is able
to percolate through the soil to recharge groundwaters. Instead, rain-
fall results in greater runoff volume and velocity. Increasing the rate
and volume of runoff increases the severity of flooding downstream dur-
ing wet periods and excessively drains the land during dry periods. In
addition, the productivity of estuarine systems which depend upon parti-
cular salinity levels can be drastically reduced. The erosion of soil
by SWR and consequent sedimentation of downstream areas is particularly
destrtctlve, filling waterbodies, reducing their flow and smothering
aquatic life.
Until quite recently, the parameters of the nonpoint pollution pro-
blem were unknown and the data even now available is still Inadequate in
many areas to support the application of specific control mechanisms.
One complicating element Is the fact that SWR occurs naturally In the
absence of man's activities and so is, In part, the natural state of
things. The passage of the Federal Water Pollution Control Act Amend-
*Dlrector, Eastern Water Law Center, Holland Law Center, University of
Florida, Gainesville, Florida 32611.
1. U. S. Environmental Protection Agency, Water Quality Management Plan-
ning for Urban Runoff V-1 (Dec., 1974).


ments of 1972 (FWPCA)2 has undoubtedly provided the greatest Impetus for
investigating the nonpoint source pollution problem.
The FWPCA, also known popularly as Public Law 92-500 or the Clean Wa-
ter Act, was enacted to provide a comprehensive program designed to a-
chieve a national objective of restoringn] and maintain[ing]the chemical,
physical, and biological Integrity of the nation's water".3 This goal
is to be accomplished by: (1) eliminating the discharge of pollutants
into navigable waters by 1985; (2) attaining a degree of water quality
conducive to recreation and the protection of fish and wildlife by July
1, 1983; (3) forbidding the discharge of toxic pollutants into the na-
tion's waters; (4) constructing publicly-owned treatment works through
federal financial assistance; (5) implementing areawide waste treatment
management plans; and (6) initiating research to develop necessary tech-
No permit program for controlling nonpoint source pollution was con-
tained in the FWPCA. Indeed, it was not yet known how such a program
could be developed. It was left to the states under Section 2085, enti-
tled "Areawide Waste Treatment Management", to designate state or region-
al planning agencies that would be responsible for developing plans for
the control of nonpoint source pollution. In conjunction with Section
208, Section 303 requires the adoption and enforcement of water quality
standards through a "State Continuing Planning Process" which Is to In-
corporate the elements of the Section 208 planning process. "Water
Quality Management Planning" is the popularized term which refers to the
combined strategy-formulating process of these two provisions.
When the FWPCA was first enacted, Section 208 was a sleeper. The de-
velopment of a permit program for controlling point sources of pollution
under Section 402 of the Act was the focus in the beginning, along with
Section 201's provision for the distribution of federal funds to plan
for and construct secondary waste treatment systems. However, Section
208 has since evolved to a position of prominence and it promises to
substantially influence the administrative structure for state water
quality management, the personnel requirements for state, regional and
local agencies, the kinds of enforcement mechanisms that will be imple-
mented, and the way In which a great deal of public money will be spent,
to name just a few of the eventual ramifications of the provision.
I will not attempt to describe each of the FWPCA's provisions which
affect stormwater runoff management. Suffice it to say that the pollu-
tion problems attributable to SWR must be identified and quantified to
the extent that Is possible. Necessary control techniques must then be
established and described in detail. Cost estimates of SWR control pro-
grams must be made. Performance criteria must be developed and provi-
sion must be made for the requisite authority to Implement and enforce
any proposed control strategy.6 There are very few water quality manage-

2. 33 U.S.C. 1151 et. seq.
3. 33 U.S.C. 1251(a); Pub. L. 92-500, 101(a).
4. 33 U.S.C. 1251(a)(l)-(6); Pub. L. 92-500, 101(a)(l)-(6).
5. Section 208 is the number of the provision as It appears in Public
Law 92-500. It is rarely referenced by its United States Code num-
ber which is Section 1288.
6. A good illustration of the breadth of the Section 208 planning pro-
cess requirement In regard to nonpoint source pollution abatement Is
the EPA regulation at 40 CFR 131.11(j)(1)-(3)(1976).


ment plans that have been completed to date. For most designated agen-
cies, the deadline is November, 1979. It Is thus difficult to determine
what approaches have been taken and even more speculative to assess the
legal problems that may arise in the attempt to implement those approach-
In 1976 and 1977, the Environmental Protection Agency conducted a
survey of water quality management agency planning and identified pro-
blems which were reported by the agencies responsible for preparing
water quality management plans. The following problems were pervasive-
ly vocalized:
(1) The kinds of funds necessary to finance solutions to combined
sewer overflow problems are unavailable.
(2) Regionalization for management purposes, though desirable, is
unlikely to take place.
(3) There is just not enough data to convince local and state legis-
lators of the need for stringent controls.
(4) Public participation has been almost nonexistent.
Again and again, the two most formidable obstacles facing water quality
management planning agencies were reported to be inadequate funding and
the lack of political support. As you can see, the problems go beyond
the legal sphere.
The water quality management agencies are also hampered by the flip-
flop way in which the FWPCA's provisions have been implemented. Section
208 planning is out of "sync". Point source pollution control permits
under Section 402 are to be issued only In conformity with an adopted
208 plan. Planning for size and location of municipal sewer intercep-
tors and treatment plants under Section 201 of the Act is also supposed
to conform to the areawide water quality plan. Yet, point source permit
programs and waste treatment facility plans are well underway while 208
planning is hardly off the drawing boards. With Section 402 permits al-
ready Issued for polluting Installations and waste treatment systems al-
ready under construction with federal funding, 208 planning agencies are
facing circumstances set In concrete. Section 208 plans are thus having
to conform to these two programs Instead of vice versa, as was envision-
ed in the Act.
As I said at the outset, the problem with SWR control arises from its
being primarily a nonpoint source of pollution which has not heretofore
been directly regulated. The control of nonpoint sources requires a
different regulatory approach. It necessarily involves the regulation
of land use and, because the authority to promulgate land use regulations
has traditionally been delegated to local governments, the responsibility
rests most heavily upon counties and municipalities. Only in the most
populated areas of the state, however, will there be the necessary funds
and administrative sophistication at the county and municipal levels to
implement comprehensive programs for SWR pollution abatement.

7. The EPA has recently concluded that local governments may be too ill-
equipped to implement effective controls and that state-level agenc-
ies will necessarily be largely responsible for implementation of
water quality management plans. 6 BNA Environ. Rep.. Current Dev.
2146 (Apr. 23, 1976). That would represent a profound turnabout in
the existing regulatory framework in many states.


There is a widely held belief that the United States Constitution
gives to all landowners the right to do whatever they please with their
own land and that land use restrictions are therefore unconstitutional
or even somehow unAmerican. This belief is entertained in the face of
zoning regulations, building codes, setback requirements and a multitude
of similar land use restrictions to which almost every landowner has
been subject. In fact, land use controls are as old as land ownership
and there has never been a time when one could use land in a manner which
posed a known harm to the general public. Notwithstanding history and
experience, the landowner's cry of "taking" continues. For many, the
taking issue embodies more than a legal question. It is often the focus
of broader philosophical and political debates concerning the role of
government generally and the rights of private land use. However, land
uses are the major determinants of environmental impacts and it should
be readily apparent that the prevention of environmental degradation must
entail the enactment of controls that restrict or even prohibit land
uses which are known to be harmful.
The taking challenge is derived from language in the Fifth Amendment
of the United States Constitution which is made applicable to the states
through the Fourteenth Amendment. It declares that "private property
shall not be taken for public use without just compensation." The taking
issue is not always a clearly defined question for the courts. In the
same case it may be intertwined with other legal claims such as unrea-
sonableness, arbitrariness or improper discrimination. Even early appli-
cation of theconstitutional provision frequently resulted in the uphold-
ing of police power regulations which significantly restricted the use
of private land so as to prevent a public harm.
Attacks upon land use controls are considered in light of the partic-
ular circumstances of each case. Nevertheless, several general princi-
ples continue to be important to courts examining the taking issue. The
validity of a regulation depends in part upon both the character of the
action and on the nature and extent of the interference with one's
rights in the property as a whole. Diminution of property values alone
is not enough to find a compensable taking. The fact that some land-
owners may be affected more than others is not sufficient to constitute
a taking. Finally, no taking will usually be found where the plaintiff
Is not prevented f om making a reasonable use of the property subject
to the regulation.
I believe it can be fairly said that there is a trend of more favor-
able judicial attitudes in regard to the reasonable necessity of most
land use restrictions imposed to protect environmental quality and SWR
controls will likewise meet with less resistance when there is greater
awareness of their function and importance. Perhaps greater awareness
will also temper the reaction of landowners to restrictions which do no
more than ask them to refrain from harming themselves and others.
In most states, and this is true in Florida, there already exists the
enabling legislation that provides authority to develop control programs
that can effectively manage the water quality problems due to uncontrolled

8. These principles and the taking issue in general were discussed
clearly and at length In a very recent decision of the United States
Supreme Court in Penn Central Transportation Co. v. City of New Vorki
46 U.S.L.W. 4856 (1978).



surface water runoff. 'hat is required now is the creation of a compre-
hensive program that utilizes existing authority heretofore unexercised.
Organization is important also. Overlapping authority, independently ex-
ercised, can spoil otherwise effective regulations.
There are a number of states whose pollution control statutes either
expressly exclude nonpoint sources from their provisions or are worded
in such a manner that the authority to control nonpoint sources is ques-
tionable. That presents a legislative problem as much as a legal one.
Stratified regulatory structures are also pervasive. In most instances,
state-level agencies regulate water quantity and quality exclusively
while local governments exercise primary land use control authority.
The lack of coordination of land and water management invariably leads to
regulatory inefficiency. Besides avoiding conflicts, coordination of
land and water management can make enforcement programs significantly
more effective. Thus, land use controls may be employed to protect water
resources and water use controls can be used to implement land use plans.9
Exemptions pose some of the thorniest legal problems that now exist in
environmental regulatory programs. They are the by-product of the push
and pull of the legislative process and are not easily eliminated. It
is not uncommon for particular uses, such as agriculture or forestry be exempted from particular water resource regulations.
Existing uses, as opposed to new proposed uses, are also frequently
exempted from the application of control measures. This is sometimes due
to the misconception that existing uses become vested with the right to
be controlled only by the regulations that existed at their inception
and cannot be required to comply with subsequently promulgated standards.
While a harder look may be taken by a court when a new and stricter con-
trol has been imposed and challenged by a landowner, changed conditions
and demonstrable harm have been held sufficient in many cases to require
compliance. Federal exemption from state controls and state exemption
from local controls are additional gaps in any regulatory program but a
more cooperative approach between state and federal agencies may be a
by-product of the growing attention and concern for environmental quality
that has already produced more environmental-related legislation in the
past ten years than one not involved in this area could imagine.
The outlook for control programs to reduce nonpoint source pollution
in general and surface water runoff pollution in particular is for the
implementation of best management practices and design and performance
standards. The EPA regulations promulgated in conjunction with the FWPCA
permit individual programs to be tailored to fit specific water quality
problems. In designating appropriate controls for a particular nonpoint
source, a regulatory program may address a particular category such as
sediment, or particular geographic areas determined to be critical or
sensitive. The choice of a regulatory program and an administrative agency
to implement it are dependent upon the type and intensity of the non-
point source problem, existing programs and agencies, and state statutory
The manner in which best management practices and design and perfor-
mance standards can be utilized to abate surface water runoff pollution
may be illustrated by a situation that presently exists in the Florida
panhandle. Apalachicola Bay, a beautiful and biologically productive
9. See Malonev, Coordinating Land and Water Use Planning for Sound
Resources Management, 2 Uater Supply and Management 253-263 (1978).


estuarine system, has been the focus of scientific research to ascertain
the possible detrimental impact of upland runoff that is entering the
Bay in increased volumes due to the operations of a major forestry com-
pany to the north. The tentative conclusion of the research conducted so
far is that the surface water runoff problem is due largely to the flash
effects of sudden discharges of large amounts of sediment into the Bay.
The normal rate and volume of runoff contributes an amount of sediment
that the natural system is capable of assimilating without significant
degradation. These flash discharges, in turn, have been attributed to
certain harvesting operations of the forestry company, most importantly
While the discontinuation of the flash discharges of sediment into
Apalachicola Bay would be the logical objective of a runoff control pro-
gram for the area, several alternative control techniques may accomplish
that objective. Clear-cutting could be discontinued or done less fre-
quently. Other harvest techniques could be substituted. Detention and
retention structures to slow or prevent runoff may be built, or the run-
off could be routed to reach the Bay at more numerous locations so that
the sediment load at any individual discharge point would be at a safe
level. Surely, other management practices could be applied to achieve
the performance standard--elimination of flash discharges of large sedi-
ment loads into the Bay.
Design standards can be imposed to ensure that management practices
do not create additional environmental problems. In the Illustration I
just used, for example, design standards might require that detention
structures be built so as not to destroy important wildlife habitats
where such destruction can be avoided or that they be designed to allow
for a specified minimum detention capacity.
It is essential to the integrity of any regulation promulgated under
the police power of the state or of a local government that factual data
exist to support the requirements that are imposed. Due to the diversity
of types of surface water runoff pollution and its tendency to contri-
bute to water pollution intermittently at many sites along a waterbody's
edge in a largely unpredictable manner, quantification and evaluation is
extremely difficult. Moreover, the investigation of the parameters of
surface water runoff pollution is a relatively recent undertaking,which
has not yet produced the years of data that are frequently necessary to
draw credible scientific conclusions about hydrologic relationships and
runoff impacts. Consequently, the legal defense of surface water runoff
control regulations will depend heavily upon the quality and thorough-
ness of the scientific field work and modeling that has been done in the
areas subject to the regulation.
In summary, legal problems with SWR pollution abatement arise from
the nature of runoff itself. As a nonpoint source of pollution, it is
difficult to quantify and evaluate in order that control programs may be
developed and subsequently defended in the courts when challenged. Sec-
tion 208 of the Federal Water Pollution Control Act created an unavoidable
mandate that something be done about SWR and the other major nonpoint
pollution sources but inadequate funding and a pervasive lack of politi-
cal support for control program proposals have become formidable obsta-
cles for the agencies responsible for areawide water quality management
planning. The requisite authority to begin abating SWR pollution already
exists in most states and it is now only necessary for regulatory agen-
cies to begin utilizing that authority to implement sound and comprehen-


sive runoff control programs.10 Best management practices (BMPs) and the
use of design and performance standards are likely to be the new metho-
dology for controlling nonpoint source pollution and they presage the
increased use of land use restrictions. Finally, careful and extensive
data collection will be the key for defending the reasonableness of any
implemented SWR control programs.

10. A model ordinance for SWR control has been developed by the Eastern
Water Law Center and is available upon request. Eastern Water Law
Center, Room 358 Holland Law Center, University of Florida, Gaines-
ville, Florida 32611.



Daniel H. Hoggan M. ASCE and Kirk R. Kimball1

Increasing Pressure for

Non-Federal Financing

An emerging trend in federal policy is to shift a larger share
of water development costs to non-federal entities. The National
Water Commission (1973), not the first study commission to point out
deficiencies in water project cost sharing policies, strongly recom-
mended full recovery of federal development costs for most major uses
through pricing systems and beneficiary charges. Subsequently, alterna-
tive cost sharing options that would substantially increase the non-
federal share of water development costs for most purposes were proposed
by the U.S. Water Resources Council (1976) in its "Section 80 Study."
And, the President's controversial water policy study of 1977 culminated
in a recommendation by the President on June 6, 1978 (Carter, 1978),
for states to pay up to 10 percent of the front end costs of new water
projects not yet authorized.

The essence of the President's policy is that except for Soil
Conservation Service projects, states will make a cash contribution
toward project costs over and above existing non-federal cost sharing
requirements. For project purposes, such as water supply and hydro-
electric power which have vendible outputs, the state contribution
would be 10 percent, and for project purposes such as flood control,
without vendible outputs, the share would be 5 percent. These con-
tributions would be proportionate to and phased with federal appro-

One of the principal aims of this policy is to reduce investment
in uneconomic water projects. Non-federal entities are more inclined
to seek development when a substantial portion of the costs are borne
by the federal government. Consequently, the pressure for development
may be expected to diminish when the non-federal share of costs in-
creases. The cash contribution to be made by states under the Carter
policy would be viewed as tangible evidence of real demand.

Respectively, Professor of Civil and Environmental Engineer-
ing, and Research Assistant, Utah Water Research Laboratory, Utah State
University, Logan, Utah.



Efforts by the Carter Administration to cut some major projects
already under construction and to tighten project evaluation procedures
also reflect an increasingly conservative approach to water investment.
Although the intent to curtail projects which are uneconomic, or un-
desirable in other respects, is laudable, the local, state, or regional
viewpoint on a project may be different than the federal viewpoint.
Consequently, non-federal entities may wish to fund some projects
precluded from federal funding.

Whether it is a case of filling a gap created by diminishing
federal funding, a desire to move ahead independent of federal con-
straints and delays, or a requirement to provide a higher cost share
under federal programs, non-federal entities are faced with the problem
of raising additional water development capital.

State and local governments are likely to find this challenge
a difficult one in light of current conditions. Pressures to reduce
state and local government spending and taxes are mounting, and the
effective non-federal share, including payments in kind, maintenance and
operating costs, and reimbursement for most forms of water development
are already substantial. Data are not available on exactly how much in
total is being spent on water development by entities other than federal
agencies because water development in its various forms is carried out
by hundreds of public agencies at all levels of government and by
thousands of private firms. Furthermore, non-federal water development
is an integral part of investment in traditional economic sectors such
as electric utilities and transportation.

Effective non-federal cost-sharing on federal and federally assist-
ed projects and programs, though only a portion of the total picture,
was estimated in the Section 80 Study (WRC, 1976, p. vi) for the year
1974 to be $21.4 billion. Based on 1974 data, composite effective
non-federal cost shares by purpose range from 0 to 64 percent with an
overall average of 30 percent (see Table 1). These figures take into
account the timing of non-federal contributions and the time value of
money. New cost sharing policies obviously will increase significantly
the non-federal share beyond these amounts.

Legal Constraints to the Expansion of

State and Local Long Term Debt

In responding to pressures to increase the non-federal share
of water development funding, state and local governments may find
traditional sources of financing, such as revenue bonds (non-guaranteed
debt) and general obligation bonds which have "full faith and credit"
backing, difficult to expand in light of growing taxpayer resistance and
other constraints.

In issuing long term debt, most states have had to contend with
various constitutional debt limitations. The difficulties re-
sulting from over extension of state borrowing to finance canals and
* other internal improvements in the early 1800s led to the adoption by


Table 1. Composite effective non-federal cost-sharing for programs and
projects by purpose.

Current (1974)
Effective Non-
Purpose Federal Cost Share (%)

Hydropower Generation 64
M&I Water Supply 64
Water Quality, Point Source 64
Area Redevelopment 60
Drainage 46
Boating (Berthed & Launched) 48
Erosion & Runoff Control 45
Ecological Systems 26
Urban Flood Damage Reduction 20
Agricultural Water Supply 19
Recreation, General 19
Fishing & Hunting 14
Rural Flood Damage Reduction 11
Aquacultural Production 8
Navigation 7
Natural Areas 4
Water Quality, Non-point Source 3
Historic and Cultural Sites 0
18 Purposes 30

Source: Section 80 Study (Water Resources Council, 1976 p. x)

most states of constitutional restrictions. A similar pattern of over
extension of dept and inefficiency in capital projects was repeated
by local governments, and this lead to nearly universal debt limitations
also being placed on local governments by state legislatures.

The state restrictions have a variety of forms. Many state consti-
tutions limit the amount of debt that may be incurred in terms of a
maximum dollar amount, proportion of property values, proportion of
tax collections, or proportion of debt redemption. Some states, having
no monetary limits, may create debt only by popular referendum, or a
two-thirds majority vote in both houses of the legislature. In a few
states, no debt, with some exceptions related to purpose or type, may be
incurred without a constitutional amendment. Legal ceilings on interest
rates and maturity limitations (for example, a 20 year maximum) have
been significant constraints on long-term borrowing in several states.

There are three main types of limitations on the power of local
governments to borrow against future revenues: (1) A limit on indebted-
ness, expressed as a percentage of the local governments' property
base (its assessed valuation); (2) a limit on tax rates that can be
imposed specifically for debt service; and (3) the requirement of a
local referendum to authorize the issuance of debt.


There has been a definite reluctance on the part of state officials
to modify longstanding constitutional limitations on indebtedness,
however, during the past two decades of high interest rates, several
states have revised upward, temporarily suspended, or completely lifted
interest rate ceilings. Tabulated information on state and local debt
limitations is presented in a report by the Advisory Commission on
Intergovernmental Relations (1977, p. 82-85).

Legal debt limitations have been bypassed by various methods.
In most states, constitutional limitations may be avoided by issuing
nonguaranteed, or "revenue" debt. Another way of bypassing debt limita-
tions is by shifting financial responsibility between governmental
units--for example, from more restricted state governments to less
restricted local governments, such as state authorities and special
districts. A lease-purchase technique also has been used extensively in
which a state authority may be created to issue bonds for the con-
struction of a facility that is subsequently leased to an agency which
has a legal debt limitation. The result of this circumvention is that
legal debt limitations have been ineffective in restricting total state
and local government debt (Mitchell, 1967).

The issuance of nonguaranteed debt, particularly, has been found to
be more expedient politically and economically than pressing for re-
vision of constitutional and statuatory limitations, and in recent years
the rate of growth of nonguaranteed debt has significantly exceeded that
of guaranteed debt. However, this situation is not attributed entirely
to evasion of debt limitations. Revenue bonds tend to shift the burden
of risk from the general taxpayers to bondholders, and repayment is made
by the beneficiaries of the facilities provided.

Several states have authorized bond issues for financing water
projects, and some of these have had to overcome constitutional limita-
tions to do so. For example, at the time Louisiana and Texas jointly
funded the Toledo Bend Dam and Reservoir Project (1960), Louisiana's
constitution barred the state from issuing debt except to repel in-
vasions or suppress insurrection. To enable the state to issue the $15
million in hydroelectric power revenue bonds with "full faith and
credit" backing, a constitutional amendment was passed by a two-thirds
vote of the members of both houses of the legislature and by a majority
vote of the electorate in a state-wide referendum. Later, another
constitutional amendment was passed which enabled the legislature
henceforth to incur debt for capital outlays by a two-thirds vote
without a voter referendum (U.S. Water Resources Council, 1970).
In issuing $1.75 billion in general obligation bonds in 1960 to help
finance the state water project, California had to amend a constitu-
tional limitation of $300,000 on state debt. This amendment also
required a two-thirds vote of both houses of the legislature and approv-
al by a majority of the voters.

The Utah Legislature in February 1978 authorized $25 million in
general obligation bonds to fund several water projects, with reimburse-
ment from the projects providing the nucleus of an additional revolving
water development fund in the state. Although the authorized bond
issue was within Utah's legal debt limit, two other legal issues emerged.



One of the issues pertains to a constitutional prohibition on the
use of state credit for projects that are not clearly for the public
benefit. This issue was raised with respect to projects that provide
water for hydropower production, cooling water supply, and other private
and industrial uses. It is estimated that more than half of the states
have such a limitation.

Although the final answer to this question may have to come from
a court test, the key to the solution in Utah might be found under
Title 73 of the Utah Code. Water is held to be the property of the
state and beneficial use the measure of the right granted by the state.
Furthermore, Section 73-1-5 provides that "the use of water for benefi-
cial purposes as provided in this title is hereby declared to be a
public use," and the court cases cited under this section indicate that
private water uses are in effect granted the status of a public use.
For example, condemnation action which is ordinarily limited to public
entities may be exercised by a private firm to construct a water dis-
tribution system.

A second issue relates to the tax exempt status of the bonds.
Under Section 103(b) of the Internal Revenue Code of 1954, if more than
25 percent of bond proceeds are used to provide for private-industrial
use, the bonds may be considered taxable industrial development bonds.
Although all beneficial uses of water in Utah are public uses as already
discussed, the question of a different Internal Revenue Service inter-
pretation looms ominously. This problem would be eliminated by a
bill (HR10239) currently under consideration by the House Ways and
Means Committee, which would amend the Internal Revenue Code. The bill
would make it clear that interest payable on bonds issued by state and
local government units to provide water facilities is excludable from
federal income tax regardless of the purpose for which the water from
the facility is used (Interstate Conference in Water Problems, 1978).

The Municipal Bond Market


For a state or local government to obtain credit financing, funds
must be available in the bond market, and the bonds must be sufficiently
attractive to prospective buyers. The salability and interest costs of
a bond issue also depend upon the financial status of the seller.
Sellers whose bonds are rated as a less secure investment have to pay
higher interest rates because of higher debt ratios, smaller tax bases,
poor record of debt repayment, longer repayment periods, relatively
small size of bond issues, infrequent sales, and other factors. Revenue
bonds generally have higher interest rates than general obligation
bonds, and some states have given bonds intended to be repaid from
revenues full faith and credit guarantees (i.e. a pledge to use tax
revenues if necessary) to keep the interest cost down.

Current market conditions

The capacity of the market to accommodate new issues of municipal
debt depends not only on the attractiveness of new issues, but also


on the relative availability and attractiveness of other long-term
investments opportunities such as corporate bonds and treasury bills.
Other factors that affect the demand for municipal bonds include the
effect of inflation on the investor, the impact of new governmental
policies designed to fight inflation, and the effect of programs such
as the proposed taxable bond option for states and local governments
to be described subsequently.

Investors have benefitted recently from a gradually rising in-
terest rate and a moderate economic growth rate. In the last quarter
of 1977 and the first quarter of 1978, the average interest rate on
corporate triple-A bonds has risen steadily from 8 percent to nearly
8.8 percent. Long-term government bonds have followed this trend
closely with an average interest yield 0.5 percent lower. Municipal
bonds, after dropping from the high (7 percent) rates of 1975 and
1976 to an average rate of 5.5 percent, gradually rose toward 6 per-
cent in the first quarter of 1978. For the corporate investor (in
the 48 percent tax bracket) this provides an effective interest yield
of 11.5 percent, and makes municipals competitive with corporate bonds.

The money market has experienced increased activity with cash
flowing in from commercial banks, savings and loan companies, insurance
companies, corporations, and individuals seeking a hedge against in-
flation. However, the benefits of this economic recovery may be de-
nied to public entities if investors concerned with uncertainty turn
to higher yield short-term investments which enable them to respond
quickly to changes in governmental tax and inflation fighting policies.
Some financial analysts advise that "any money headed for the bond
market be put in the shortest maturities possible to minimize the
risk involved in longer maturities, whose prices would decline as
yields rise" (Weberman, 1978). Future borrowing costs will be affected
by inflationary and recessionary trends in the economy.

The major investors in municipal bonds have been commerical banks,
non-life insurance companies, and individuals in high tax brackets.
In 1972, commercial banks held 53 percent of outstanding state and
local debt, fire and casualty insurance companies held 14 percent, and
individual investors held 26 percent. By 1975, commercial bank holdings
had slipped to 45 percent and individual holdings had risen to 34
percent. While the change in commercial bank holdings was attributed
to periods of low before-tax profits due to loan and other investment
losses, the change in individual holdings was a product of the in-
flationary spiral which pushed salaries into higher tax brackets without
increasing their real value.2

A cut in income tax rates would tend to draw investors from tax
exempt bonds to taxable corporate bonds and thus raise the cost of
state and local financing by forcing an increase in the interest rate
on municipal bonds. For a corporate investor, a 5.5 percent tax ex-
empt bond would have an effective interest yield of 10.5 percent,

21n 1960, 566,000 tax returns reported an adjusted gross income
of $25,000; by 1975 this number had increased to 6.4 million returns.


but a governmental policy that cut the corporate tax rate from 48
percent to 44 percent, would reduce the effective interest yield to 9.8
percent. Consequently, the tax exempt interest yield would have to
increase to 5.9 percent to provide an equivalent return.

Taxable bond option for municipal debt

There has been considerable controversy concerning the appropriate-
ness of the tax exemption for interest income from municipal bonds. Key
issues in this controversy have included: legality constitutionalityy)
of the exemption, the resulting revenue losses to the Federal Treasury,
and the debilitating effect its termination would have on state and
local governments. Termination of this exemption would likely put
municipal bonds out of business, or at least cause the interest rates on
such bonds to increase to the point that many issues would be infeasible
because of existing rate ceilings.

Included in the administration's tax reform recommendations is
a proposal to establish an option for states and local governments
to issue taxable bonds at the market rate of interest with the federal
government paying part (35 percent to 40 percent) of the interest cost.
The Taxable Bond Option (TBO) is designed to close tax loopholes for
high income investor groups, provide investment opportunities for tax
exempt institutions, and increase the benefits of low cost financing
which accrue to states and local governments. For the purpose of
illustration a government agency might be able to choose between a 5
percent tax exempt bond issue and a 10 percent taxable bond issue that
would receive a 35 percent federal subsidy, thus reducing the effective
cost to 6 1/2 percent. In this case, the agency would probably issue
the tax exempt bonds at the lower rate of interest. If, on the other
hand, the rate on municipal bonds rose to 7.09 percent as it did in 1975
the agency could issue the taxable bond and save 0.59 percent in in-
terest costs.

Unfortunately, even though the TBO has been discussed for 8 years,
little is known about the effect it would have on interest rates in
the market, costs of the subsidy to the U.S. Treasury as compared with
increased federal tax revenues, benefits to state and local governments,
or the effect on the viability of the tax-exempt market. Galper and
Peterson (1974) and Fortune (1974) indicate that the option would have
a progressive effect on wealth distribution, but, before many years,
present sizable net costs to the U.S. Treasury.3

Borrowing trends and possible
market expansion

During the years from 1950 through 1974, state and local bond
issues were approved between 50 and 90 percent of the time in elections.

U.S. Secretary of the Treasury W. Michael Blumenthal has in-
dicated at the present bill could cost the Treasury a net outlay of $600
million using a 35 percent rate until 1980 and a 40 percent rate of sub-
sidy after that date.


Issuance of state and local debt gradually rose to an annual rate
of over $8 billion in 1974. Then in 1975, in a recessionary economy
following the Viet Nam War, rumors began circulating that New York
City would not be able to meet its obligations on maturing debt issues.
In the crisis of confidence that emerged during that year only 29
percent of the debt issues presented to voters nationwide, totalling
less than $3.5 billion, was approved.

The market in general made a rapid recovery from this crisis.
By 1977, state and local governments in total had amassed nearly $14
billion in surpluses, thus reversing deficits of 1974 and 1975. These
surpluses resulted not only from improved financial management (a
possible by-product of the New York City crisis) but also from increased
incomes and consumption generated in a period of economic recovery.
In 1977, a record $44 billion of municipal bond issues was approved,
although the percentage of general obligation bonds slipped to 40
percent (as contrasted to over 50 percent prior to 1975). Public
confidence was increased by the federal assistance given to New York
City and the decisions of several courts restraining the city from
engaging in ex post facto modification of original bond covenants.
Perhaps the most important legacy of the New York City experience is the
reforms in the borrowing procedures of state and local governments it
has induced including the development of more and better information on
proposed bond issues.

Passage in June 1978 of the Jarvis-Gann initiative (Proposition
13) in California, has a more disruptive potential for the municipal
bond market than the New York City problems. This action, which limits
the property tax in California, and threatens to spread to other states,
has serious implications for the municipal bond market. Recognizing
that tax revenues needed to service bonds are jeopardized, the Moody's
'Investors Service in mid-April declined to rate a $40 million issue
by the Irwindale Community Redevelopment Agency. Consequently, the
bonds sold at 7.5 percent instead of 6.5 percent for a similar A-rated
bond (Roscoe, 1978). State and local governments not only will find
borrowing costs higher, but may be unable to raise funds through general
obligation bonds and will have to turn to less secure revenue bonds
where these are feasible.

Many state and local governmental units involved in water develop-
ment may be caught in a financial squeeze brought about by voter-im-
posed tax limitations and increasing costs (both interest costs and
construction costs). Although many jurisdictions can, and will, re-
main competitive in the bond market due to their size, their ability
to generate revenue, their experience with bond issues, and other
,factors, others will not be able to compete. Issuing more nonguaranteed
debt may offer some relief; however, revenue bonds, though ideally
suited for certain water projects such as hydropower, have been im-
practical for other projects. Revenues from a water supply project,
for example, may be delayed until off-site distribution facilities
are constructed, and then will grow, but slowly as demand grows.


Utah Water Development Funds

Several states have provided financial assistance to local govern-
ment units, and in some cases to individuals, for water development.
Revolving development funds are common, though they vary in scope
and detail. Such funds might be enlarged or expanded in scope to
assist local units in meeting increasing demands for development capital

The State of Utah has had two water development revolving funds
in the past, and a third is being added in 1978. These funds are
briefly described to provide an example of how a state can assist local

A revolving construction fund used primarily for irrigation devel-
opment was established in 1947 with a $1 million appropriation. This,
plus $16 million in subsequent appropriations, has enabled the fund
to finance 450 small projects at a cost of $27.5 million. These proj-
ects were too large for independent private financing, but too small for
federal development.

The Cities Water Loan Fund was created in 1975 to provide financial
aid to the cities, towns, and improvement districts. This fund operates
as a bank in purchasing local bond issues for water supply improvements.
The impetus for creating this fund came from the anticipation of energy
developments which would severely impact many small communities causing
rapid and uncontrolled growth. After two years of operation, the
fund has purchased $3,784,800.00 of water bonds for 27 projects.
Redemption payments from these projects go into the fund to provide
financing for future projects. Like the revolving construction fund,
this fund is supplemented with occasional legislative appropriations.

The Water Conservation and Development Fund authorized in 1978,
differs from the two existing funds in several ways. Instead of being
established by an appropriation, it is being established with a $25
million general obligation bond issue. The bond proceeds will help
finance several specific projects larger in scale than those which
could be funded by the other two smaller development accounts, and the
repayment from these projects will create revenues for the new revolving

The two existing revolving funds provide development capital*
interest free, but the new fund will require repayment with interest.
Considerable discussion has been generated recently in the state capitol
concerning the pros and cons of interest-free financing. The state
legislative auditor concluded that without interest payments, the two
existing revolving funds are losing their purchasing power due to the
effects of inflation. The justification for interest-free financing
according to one state water official is that there are many indirect
benefits of water projects that accure to the public. These, in effect
are paid for by interest charges foregone. It is also argued that water
development encouraged by interest-free financing serves the social goal
of increasing economic growth in Utah's rural counties and reducing the
out migration of population.


User charges

The mounting resistance to property and other general taxes may
be the impetus for shifting more of the burden of water development
financing to direct beneficiaries, and this could lead to a greatly
expanded application of user charges for servicing long term debt and
accumulating development capital.

In a broad sense, a user fee might be considered as any form of a
charge imposed upon a user for the use of a resource. Sales taxes,
severance taxes, excise taxes, tolls, entrance fees, licenses, water
rates, and so forth all could be considered as a form of user fee
under this broad definition. In the case of water, the fee might be
charged on amounts of water actually used or on rights to use water
irrespective of amounts used. For some uses, the charge could be made
directly on the quantity of water diverted; for others, fees would have
to be made indirectly on the products or services associated with the
water resource. The fees might be designed to cover the costs incurred
in developing and supplying the water or to charge users merely for the
privilege of utilizing the resource, unrelated to development costs.

If water uses have a positive price elasticity of demand, water
user fees would have a tendency to allocate water resources in a more
economically efficient manner and reduce waste.

Two types of user fees might be considered by states in meetings
their increased financial responsibilities for water development--a
full cost fee that would recover development costs through wholesale
and/or retail sales of water, and a user fee similar to an excise
tax which would constitute a basic charge for the use of the resource
per se.

Most states have not become directly involved in selling water
and only a few have imposed other types of user fees. In a recent
survey of state experience, only 8 out of 46 states indicated that they
impose water user fees other than those associated with recreational
uses (fishing, boating, etc.). Nine of the states sell water from state
water projects or from purchase storage in federal projects (see Table

As shown in Table 2, only two states reported a fee for water
diversions; two others have fees for waste discharges; three reported
fees on hydropower; one has storage fees; and one other state levies
fees on water rights from state lands.

Although water sales are substantial in some states such as Cali-
-fornia, other types of user fees are nominal and bring in relatively
modest amounts of revenue. In most cases (four of the states), the
revenues go into the general funds. The revenues received from waste
discharge fees in two states Are used to pay monitoring expenses, and
in two states user fee revenues are earmarked for water development
funds. I


Table 2. State user fee programs (1974).a

Water Other
State Sales User Feesb

Arkansas Storage
California X
Hawaii X Water Rightsc
Indiana X
Kansas X
Louisiana X
Michigan Waste Discharge
Nevada X Hydropower & Diversion
New Hamshire X
New Jersey X Diversion
New York Hydropower
Ohio X
Oregon Hydropower
Wisconsin Waste Discharge

aSource: Survey of state water-user fee programs conducted
in 1974 by the Utah Water Research Laboratory and the Utah Division
of Water Resources; 46 states responded; Connecticut, District of
Columbia, North Carolina, and South Carolina did not respond (Hoggan et
al., 1977).
bExclusive of one-time permit fees and recreation fees and licenses.
cLeases out water rights from state lands.

A bill which would have required irrigators and other major water
users to pay an excise tax type fee was introduced in the 1975 (44th)
session of the Washington State Legislature at the request of the
Governor. The bill (House Bill 458) would have set up a system of
water charges, the proceeds of which would have gone into a state water
development fund (80 percent) and a water enforcement account (20
percent). Substantial opposition from irrigation interests and others
coupled with adverse publicity killed the bill in committee.

Estimates of revenue generating potential indicate that excisd
tax type fees could produce significant amounts of revenue with only
modest increases in current prices. Rough estimates of maximum annual
revenue generating potential for a few of the major uses in Utah in-
dicate that $5 million could be raised from irrigation, $13 million from
municipal use, and $3-11 million from industrial (energy production) use
(Hoggan et al., 1977).

A Joint State-Private
Financing Alternative

The State of Idaho is currently pursuing a joint funding arrange-
ment with an electric power utility that would provide the state with


substau--tLd aaaltlonal development capital. In 1972 the Idaho Water
Resources Board entered into a contract with the Idaho Power Company
to jointly construct the Swan Falls-Guffey Dam on the Snake River
in southwestern Idaho. Under the agreement, costs of the dam ($90
million, 1976 costs) would be divided approximately equally, between the
state and the power company. The state would issue revenue bonds to pay
for the dam and appurtenant facilities, and the power company would pay
for the power plant.

In 1971 it was estimated that the state bonds would have an interest
cost of 6 1/2 percent compared with 8 1/2 percent for Idaho Power
Company bonds. Under the contract, Idaho Power would pay the state the
equivalent of the private borrowing cost, thus paying a 2 percent
increment of interest cost in addition to the amount needed to retire
the bonds. This increment would amount to an annual payment exceeding
$2 million (Idaho Water Resources Board, 1971).

Most of the details of the arrangement have been worked out.
An Idaho court has ruled that the contract is legal and questions
regarding water rights have been resolved. Currently an environmental
impact study is being conducted in connection with the application for a
license to build the project. One significant issue that remains
to be resolved concerns the tax exempt status of the bonds. This is
a similar problem to the one discussed previously on Utah's new bond
issue. Will the tax exempt status of the bonds be questioned by IRS
because a large part of the output from the facility (hydropower)
is going to an industry?

Conclusions and Recommendations

In responding to the trend in federal policy to shift a greater
share of water development costs to non-federal entities, state and
local governments are likely to find their traditional source of
capital finance--long term debt--expensive and difficult to utilize.
The tax limitation initiatives that are spreading throughout the country
will tend to reduce revenues and debt repayment capability. This
will constrain the issuance of guaranteed debt and along with inflation,
push borrowing costs up.

To cope with this situation, government units wishing to borrow
for capital requirements should take action to become more competitive
in the bond market. They should become better informed on the pro-
cedures and processes involved in marketing bonds and maintain a close
relationship with marketing agencies. And, they should develop better
information on prospective bond issuesand on their own financial status.
Expanded application of water user fees, revolving development funds,
and joint public-private financing schemes, should be explored.


Literature Cited

Advisory Commission on Intergovernmental Relations. 1977. Significant
features of fiscal federalism 1976-77, Vol. II revenue and debt.
Washington, D.C.

Carter, President Jimmy. 1978. Water policy message. Office of
the White House Press Secretary. June 6.

Fortune, Peter. 1974. The impact of taxable municipal bonds: policy
simulations with a large econometric model. In the National
Tax Journal, Vol. XXVI, No. 1, p. 29-42.

Galper, Harvey, and George E. Peterson. 1974. The equity effects of a
taxable municipal bond subsidy. In the National Tax Journal,
Vol. XXVI. No. 4. p. 611-624.

Hoggan, Daniel H., 0. W. Asplund, J. C. Andersen, and D. G. Houston.
1977. A study of feasibility of state water user fees for financ-
ing water development. Utah Water Research Laboratory Report PRWG
162-2. Utah State University, Logan, Utah.

Idaho Water Resources Board. 1971. The southwest Idaho joint venture
project. Boise, Idaho.

Interstate Conference on Water Problems. 1978. News in brief. Vol.
7, No. 2. St. Paul, Minnesota.

Mitchell, William E. 1967. The effectiveness of debt limits on state
and local borrowing. New York University, Institute of Finance,
Bulletin No. 45.

National Water Commission. 1973. Water policies for the future..
Water Information Center Inc., Port Washington, New York.

U.S. Water Resources Council. 1970. State and local capability to
share financial responsibility of water development with the
federal government. Washington, D.C.

U.S. Water Resources Council. 1976. Planning and cost sharing policy
options for water and related land programs, Part 9. Washington,

Weberman, Ben. 1978. A turning point is in view. In Forbes, April
17. p. 136.

I t


1 2
David F. Kibler A. M. ASCE, John Mciparran M. ASCE
and Robert J. Trotter


Total water use in Pennsylvania is running currently at about
16.5 billion gallons per day. Most of the water is used for condensor
cooling at electric power plants (60%), industrial manufacturing (28%),
and public water supply (10%). Agricultural water use for livestock
and irrigation, one of the smaller water uses, currently accounts for
only about one percent of the total statewide usage. However, it is
growing quite rapidly. Livestock water requirements are projected to
increase from about 46 mgd in 1970 to about 63 mgd in 1990. Projected
irrigation demands, on the other hand, are expected to increase from
about 60 mgd in 1966 to about 400 mgd in 1990.

Although irrigation of crops in Pennsylvania began at least 50
years ago, by 1950 only about 80 farmers actually owned irrigation
systems. However, with the droughts of the mid-1950's the number had
increased to over 300 by 1959; and by 1967-, there were over 1,000
irrigation systems in Pennsylvania. Without question, the severe
drought from 1961 to 1966 accounted for much of this increase. Since
that time, annual precipitation has been average or above every year.
There have been some short droughts of a few weeks, but nothing severe
enough to make farmers rush out and invest in irrigation systems.
SToday, we estimate that the number of irrigation systems is about the
same as a decade ago. However, during the past few years, inflation
has raised costs to the farmer and more are using their systems in non-
drought years to maximize crop production -- especially for shallow-
rooted crops which have low tolerance to moisture stress.

In 1969, a first attempt was made in Pennsylvania's State Water
Plan to estimate existing and future agricultural water needs. A
f special survey, completed in 1967 by the Pennsylvania Department of
Agriculture, had determined how much water was used for crop irrigation
during the drought year, 1966. The survey found that 45,000 acres
were irrigated, requiring about 25,000 acre-feet of water.

Associate Professor of Civil Engineering, Penn State University,
University Park, Pa.

2Chief, Division of Comprehensive Resources Programming, Pennsylvania
Department of Environmental Resources, Harrisburg, Pa.

Project Engineer, Water Resources Engineers, Inc., Springfield, Va.


For planning purposes, this survey represented a good first esti-
mate of the existing usage during a severe drought. What was needed was
a method of determining future usage. This was a difficult task because
irrigation is only used by many farmers during extreme droughts (average
rainfall in the growing season is approximately 22-25 inches in Penn-
sylvania), and even then, only about one percent of all farmers had
systems. Also, farmers in Pennsylvania frequently change their crops
depending on the economy. Consequently, it was difficult to predict how
many acres would be irrigated in the future, what crops would be raised,
and how much water might be required.

It was decided that probably only the farmers themselves or other
agricultural experts, such as county agents, could make reasonable
estimates of future irrigation requirements. Through Soil Conservation
Districts, special agricultural committees were formed in each county
which reviewed the historic irrigation data and made estimates of acres
to be irrigated in the years 1975 and 1980. These estimates were
extrapolated to 1990. Then, it was assumed that each acre would receive
one inch of irrigation water per week. The product of acres times this
usage rate determined the future irrigation water demands for the State
Water Plan.

Obviously, this simplistic approach did not take into account the
variability of crop needs for water, soils, or variability of rainfall
from one region to another. Research was needed to determine what crops
might be irrigated in Pennsylvania, how much water natural rainfall
would provide, and how irrigation requirements vary with soils, climate,
and location across the State. Knowing these factors would lead to a
determination of the actual plant water requirements in the Common-
wealth. However, it would not address the question of whether it would
be economical to apply the needed water. Therefore, the total research
effort on statewide irrigation needs was composed of two essential
goals: 1) estimation of crop water requirements for various frequency
droughts by region throughout the State; and 2) evaluation of the
economics of applying irrigation water to determine whether the
increased crop yields from irrigation will justify the additional costs
of equipment, developing a water supply, and extra labor.

To date, only the crop water requirements portion of the research
has been completed. This paper describes briefly how the research was
accomplished, its results, how it will be used for planning and what
additional research is needed.

Computer Simulation of Potential Irrigation Demands in Pennsylvania

As indicated in the previous discussion, irrigation of high-value
crops in Pennsylvania has become quite common over the past 20 years
and represents an important water demand at times in the summer months
when available water supplies may be severely limited. To evaluate the
potential demand for irrigation water in Pennsylvania and its conse-
quences for the State Water Plan, the Department of Environmental
Resources (DER) funded a study conducted by The Pennsylvania State
University, Institute for Research on Land and Water Resources. The
study was directed specifically at soil moisture simulation and statis-
tical analysis of moisture deficits produced under crop-soil conditions


occurring at 65 locations throughout the Commonwealth. Particular
emphasis was given to southeastern Pennsylvania where, as indicated in
Figure 1, the most productive agricultural land in the State is located.
This section describes the structure of the soil moisture simulation
model and the statistical analysis of soil moisture deficits used as a
measure of irrigation demand.

The computer simulation model used in the DER irrigation study
was based on a daily soil moisture budget. The program used available
climatic data at each of 65 sites throughout Pennsylvania to calculate
daily changes in soil moisture throughout the root zone of 10 major
crop types. These soil moisture changes in turn were used to estimate
potential irrigation demands. The 10 crops included: small vegetables,
berries, potatoes, sweet corn, field corn, melons, tomatoes, alfalfa,
nursery and orchard crops. Data describing local soils and rooting
depths, in addition to long-term records of daily rainfall, temperature,
relative humidity, cloud cover and wind speed was assembled for each of
the 65 irrigable sites shown in Figure 2.

The conceptual structural of the computer simulation model is
illustrated in Figure 3. As indicated in this sketch, the depth of soil
penetrated by crop roots is viewed as a closed volume which may contain
only a certain amount of water. By convention, this is the moisture
level at which the soil matrix is saturated. Any further addition of
effective precipitation above field capacity was considered lost to
surface runoff or deep percolation. The basic equation of the soil
moisture budget is:

SMi = SM-1 + PEFF AET (1)


SMi = The quantity of moisture in the soil at the end of the
day under study (inches),

SMi-1 = The quantity of moisture left in the soil at the end
of the previous day (inches),

PEFF = The effective precipitation (precipitation-runoff) on
the day under study (inches), and

AET = The actual evaporation on the day of study (inches).

Thus, on a daily basis the amount of water in the root zone changes only
by the addition of effective precipitation (precipitation runoff) and
subtraction of actual evaportranspiration (AET). No separate account-
ing of deep percolation was made in this single-layer soil moisture
model since the moisture datum used in this study was field capacity.
The effective rainfall, PEFF, is computed from daily rainfall1by appli-
cation of effective rainfall factors developed by D. F. Tandy in an
earlier rainfall-runoff study based on 48 USGS stream gaging stations
in Pennsylvania. The actual evaporation, AET, is computed from the
Christiansen equation for potential ET and corrected for crop cover
effects and available soil moisture as indicated in Equation 2.















Figure 1. Distribution of irrigable land in Pennsylvania


* o* .

Sc ~

3 -S '

Figure 2. Location map showing 65 raingages and
potential irrigation sites


Soil moisture Soil moisture Rainfall or
@ end of day @ start of day irrigation

Surface Evapo-
runoff transpiration


6 0*


RUNOFF (lost)


Figure 3. Conceptual view of soil moisture budget
for the crop rooting zone


AET = PET x R x FCROP (2)


AET = Actual daily evapotranspiration for a particular crop

PET = Daily potential ET computed by the Christiansen method,

R = Ratio of AET/PET representing percent available joil
moisture curves developed by Baier and Robertson ,

FCROP = AET/PET ratio at a given percent of the growing
season taken from specific crog curves developed by
U.S. Department of Agriculture .

The Christiansen method is a well-documented method for estimating
pan evaporation and evapotranspiration from climatic data Data
requirements include: solar radiation at the top of the atmosphere
computed from the Smithsonian Meteorological Tables mean daily air
temperature, daily wind speed in miles per day, mean daily relative
humidity, daily percent possible sunshine, site elevation, and a
vegetative coefficient. All meteorologic data was readily obtained
from the Climatic Data Center of the National Weather Service in
Asheville, North Carolina. The Christiansen method was selected ini-
tially on the basis of a comparative study6conducted by USDA at
Coshocton, Ohio, and reported by McGuiness Further comparisons,
using daily AET values at the Coshocton grassland lysimeter, were made
by Trotter and this work was the basis for selecting the Christiansen

The basic soil moisture model described above was then used to
simulate daily irrigation amounts continuously in the period March 1
through November 7 (total growing season) at 65 sites -- each with its
own soils, climate and crop characteristics. Starting with soil
moisture at field capacity on March 1, the model computed daily soil
moisture change (SM -SMi ) according to equation (1) and applied
irrigation water whenever the soil moisture level dropped below 50
percent of available soil water capacity (AWC). The amount of irtiga-
tion water applied in any period is equal exactly to the sum
(algebraic) of the soil moisture changes over the same period -- posi-
tive change indicating a condition of water excess and negative change
indicating a moisture deficit. Thus, a negative soil moisture change
over a given day can be viewed as the daily contribution to irrigation
demand. Soil moisture deficit, therefore, has been adopted as the main
indicator of potential irrigation demand and has been analyzed
statistically as described below.

Statistical Analysis of Potential Irrigation Demands

For statewide water planning purposes, it was necessary to
analyze the irrigation water demands that might be expected on the
average once say every 2 years, 10 years, 50 years, etc., by location
and by sub-season within the total growing season. The total growing
season was, therefore, divided into 4 sub-seasons of 63 days each and


a search of the computed soil moisture deficit for each crop and station
was made by sub-season. The maximum deficits were selected for 7-day,,
14-day and 28-day intervals as these were believed to represent the
critical range of plant stress conditions. Sub-season 3, running from
July 5 through September 5 is most critical because it is a period when
many crops are reaching maturity and, therefore, highly sensitive to
moisture stress.

After searching the output files of the irrigation model for maxi-
mum moisture deficits over a 28-year period, frequency analyses of 7-
day, 14-day and 28-day extremes were carried out for each sub-season,
crop and irrigation site by use of the Log Pearson III distribution.
The results of frequency analysis on 7-day moisture deficits for
potatoes in the Allentown area for the period July 19-25 are shown in
Figure 4 as an example. Here it is apparent that the frequency distri-
butions for 4 different soils are very similar and, therefore, it was
decided to use the properties of the dominant soil to represent satura-
tion, field capacity, and available water holding capacity at each
irrigation site. From Figure 4, one could estimate that a moisture
deficit (or potential irrigation demand) of 0.5 inches in the period
July 19-25 should have only a 5 percent chance of occurrence in any
year and, therefore, should be expected on the average once in 20 years.
A similar analysis was made for each crop and station on a sub-seasonal
basis and reported as shown in Table 1 for Lancaster. A statewide
mapping of the maximum 28-day moisture deficits for potatoes in sub-
season 3 is shown in Figure 5.

The results shown in Table 1 were then used by DER for local irri-
gation planning and to facilitate statewide projections of irrigation
water demands. This is described in the next section. It is noted
that a full discussion of the methodology for irrigation simulation8
and frequency analysis is presented in the report by Kibler et. al..

Use of Research

The results of the preceding irrigation research provide the most
extensive information base developed for Pennsylvania farmers to date.
While some technical assistance is available through an earlier SCS
Manual, this booklet was so general that it was difficult to use. For
example, it gives the amount of irrigation water required for a given
crop by month, for either a "normal" or a "dry" year. The farmer has
to decide whether the year is normal or dry and then develop an irri-
gation application plan for the month without consideration of actual
rainfall which might occur. With these new research findings, a farmer
can evaluate his irrigation water requirements associated with various
frequency droughts to determine whether it might be practical to apply
irrigation for certain crops. He can make decisions whether to invest
in irrigation equipment and set priorities on irrigation among
different crops.

Farmers in Pennsylvania have long felt that they may use water on
their properties as they see fit. They own the land and, therefore,
it's their water. There is no water allocation permit system in
Pennsylvania which applies to agricultural water use, except the
authority given to the two Federal-State Compact Commissions, the



Non-Exceedance Probability

Figure 4. Comparison of frequency distributions for 7-day
moisture deficits estimated on 5 soils with potatoes
at Allentown (period of analysis is July 19-25).


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Delaware and Susquehanna River Basin Commissions which regulate all
water uses within their respective basins. For administrative purposes,
both Commissions only review new water use requests which exceed certain
minimum withdrawals.

Generally, few farmers have applied for, or are required to have a
water allocation permit. Therefore, most farmers' water rights are
governed by the riparian doctrine. This doctrine is based on the
principle of reasonable use. Court cases have found that domestic and
livestock water uses, even if they dry up a stream, are reasonable
uses, while the use of water for irrigation of crops is unreasonable
if the stream is unduly diminished.

It is the philosophy of the Commonwealth and the River Basin
Commissions to avoid water conflicts through good planning. This past
year, the Department surveyed irrigators in Pennsylvania to determine
what crops were irrigated, how much water is applied, the source of
supply, and storage required. From this survey, the locations of water
withdrawals can be mapped and water balance studies conducted to see if
there are potential areas of conflict with other water users. If
problem areas are identified, agro-water plans will be developed and
coordinated through the Soil Conservation District office and the con-
cerned water users. These plans would be developed in consultation
with all affected parties, explaining what the problem is, when it
might occur, and outlining some possible solutions. If agreement can
be reached in advance such that everyone knows how much water he can
expect to use during critical periods, conflicts hopefully will be

To encourage good irrigation practice, a manual entitled
"Pennsylvania Irrigation Water Applications Planning and Management
Guide" has been distributed to all irrigators, Soil Conservation
District offices and the County Agent offices. This manual takes the
results of the irrigation research at Penn State and puts it into a
form usable to the farmer. It demonstrates how he can make decisions
about which crops to irrigate, or whether irrigation equipment might
be helpful for sustaining certain crops. Also, it describes a water
budget accounting system which can be used by the irrigator to deter-
mine when his crops require irrigation and how much to apply. At the
present time, most irrigators apply water by intuition or by crop
appearance and consequently either do not apply enough or apply so much
that water runs off the fields.

An example of the DER soil moisture budget is shown in Figure 6
for strawberries growing in Lancaster County. Preliminary data on
rooting depth and plant available water for Lancaster County soil has
already been established from tables contained in the DER irrigation
manual. The budget begins on May 4 following heavy rains on May 2 and
3 which brought soil moisture levels up to field capacity. Note that
available moisture at the beginning of May 4 is set at the total avail-
able water capacity for the top 12 inches of the Lancaster County soil.
Using an outdoor thermometer and a simple non-recording raingage, the
farmer can fill in the first four columns. Effective precipitation in
column 7 is estimated by multiplying the daily rainfall by effective
precipitation factors tabulated by month for each county in the DER






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manual. Evapotranspiration in column 9 is estimated from Blaney-Criddle
tables contained in the manual, together with adjustments for crop
growth stage and sunshine percent. The moisture available at the end
of each day in column 11 is the end-point in the moisture balance and
determines how much irrigation water is required on the next day. On
June 8 in Figure 6, available moisture drops below 1.1 inches (half
plant available water is assumed as the trigger point for irrigation in
this example) and consequently 1.19 inches of irrigation water is needed
on June 9 to bring soil moisture back to field capacity. This simple
example in the use of the DER irrigation manual demonstrates how the
results of irrigation research can be formulated to assist the farmer
with decisions on irrigation scheduling and management.

With the existing research information, better estimates of future
irrigation demands will be possible, when combined and analyzed with
the detailed .crop irrigation information obtained from the crop irri-
gation surveys. Soil, crop and climatological information can now be
considered in addition to estimated crop irrigation acreages.

Through its State Water Plan, Pennsylvania is giving consideration
to a new water law. If it adopts a law having a water allocation
permit system similar to water laws recently adopted by other Eastern
States, then this research will provide an excellent means of evaluating
the real needs of irrigation permit applicants.

New Direction and Future Research on Pennsylvania Irrigation Needs

Irrigation water demands in Pennsylvania and in most of the humid
eastern states have never been adequately determined on the basis of
economic feasibility. In fact, in only three eastern states (North
Carolina, Pennsylvania and Virginia) has an attempt been made to
estimate the total water demand for irrigation on a probability or
frequency basis. Statewide investigations on future needs for irriga-
tion water are presently incomplete. Even so, they have been carried
out without regard to the economic costs and benefits of applying
supplemental water for irrigation. Future demands for irrigation water
will depend primarily on potential net returns to irrigation, which
in turn depend both on the expected frequency of irrigation within the
growing season for a given crop and on the cost for applying irrigation
water. The economic evaluation of irrigation feasibility in Pennsyl-
vania has not yet been conducted and it is a primary objective of
future research.

Meeting the broad objective of economic evaluation of irrigation
in Pennsylvania requires that agricultural planning groups face up to
a number of difficult issues. These issues form the basis of future
irrigation research and are stated as follows:

(1) Evaluation of new irrigation systems, such as drip systems
for improved water and energy utilization. This involves
the use of automatic control centers and soil moisture sen-
sors. Other related problems are to determine: minimum wetted
root volumes for normal crop yield; size and placement of
emitters for a particular crop; duration and frequency of
emitter operation. Of course the major question is "What are


the savings in water and energy of drip systems compared to
conventional sprinkler irrigation systems for Pennsylvania
crops?". A further critical issue is to demonstrate these
savings and communicate the results to farming groups through-
out the State.

(2) The management or scheduling of irrigation applications such
that irrigation water is applied conservatively while meeting
threshold moisture-stress levels in the crop. Thus there
is an urgent need to develop optimal irrigation policies
for major crop types.

(3) The assessment of economic costs and benefits associated
respectively with capital expenditures for equipment and
expected yield increases from irrigation.

(4) The determination of how much potentially irrigable land
in Pennsylvania can be irrigated economically and the pro-
jection of economically justified irrigation water demands
by crop type within each agricultural region.

Thus future research on Pennsylvania irrigation needs will include
such areas as: (1) field testing of new irrigation systems and auto-
matic scheduling devices; (2) development of computerized irrigation
scheduling models for the examination of alternative irrigation
policies; (3) determination of cost-benefit relationships for increased
crop yields coming from improved application of irrigation water; and
(4) delineation of expected irrigable areas and improved forecasting
of future irrigation demands by crop, season and region throughout

Although the concept of irrigation scheduling on a demand basis to
meet crop requirements is not new, it has only recently emerged as a
useful planning tool in the eastern states. It has evolved from the
experience of reclamation planners in the west and must be tested
S against field conditions found in the east--in this case Pennsylvania.
The mapping of areas in Pennsylvania where irrigation is economically
feasible and the projection of economically legitimate irrigation
demands naturally must be carried out within the context of agro-
economic conditions found here. Thus the joint use of field tests and
simulation models represents a technical advance which will greatly
improve the present state-of-the-art in managing irrigation water
supplies and forecasting statewide irrigation needs in a humid region.


The authors wish to acknowledge support for this study granted
under a contract between The Pennsylvania Department of Environmental
Resources and The Pennsylvania State University Institute for Research
on Land and Water Resources.


Reference List

1. Tandy, D. F. 1977. A technique for estimating soil moisture
recharge and surface runoff in Pennsylvania watersheds. Master
of Engr. Paper, Dept. Civil Engineering, The Pennsylvania State

2. Baier, W. and G. W. Robertson. 1967. A new versatile soil moisture
budget. Canadian J. Plant Science.

3. U.S. Department of Agriculture Soil Conservation Service. 1967.
Irrigation Water Requirements. Technical Release No. 21.

4. Christiansen, J. E. 1968. Pan evaporation and evapotranspiration
from climatic data. J. Irrig. and Drainage Div., ASCE, 94:
pp. 243-263.

5. Smithsonian Institute. 1951. Smithsonian Meteorological Tables.
Sixth Revised Edition, Washington, D.C.

6. McGuiness, J. L. 1972. A comparison of lysimeter-derived potential
evapotranspiration with computed values. Agricultural Research
Service, USDA, Tech. Bul. 1452.

7. Trotter, R. J. 1977. Development of a daily simulation model for
evapotranspiration, soil moisture balance and irrigation
requirements in Pennsylvania. Master of Environmental Pollu-
tion Control Paper, The Pennsylvania State University.

8. Kibler, D. F., D. D. Fritton, E. L. White, R. J. Trotter, D. F.
Tandy. 1977. Analysis of water requirements for Agricultural
Irrigation in Pennsylvania. Research Publ. 99, Institute for
Research on Land and Water Resources, The Pennsylvania State

9. Pennsylvania Department of Environmental Resources. 1978.
Pennsylvania irrigation water applications: Planning and
management guide. Harrisburg, Pa.

Full Text


carried out by others. Thus, for example, an EIS must be prepared
not only for such direct Federal actions as the construction of a
major Post Office development or the construction by the U.S. Army
Corps of Engineers of a flood control dam, but also for Federal-aid
highway grants to state or local governments and for the issuance of
licenses to private parties for the construction of nuclear power

Although NEPA applies only to Federal agencies, most irrigation and
drainage projects have Federal involvement with one or more agencies.

The Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-
500), is probably the most important environmental law affecting
irrigation projects. The passage of this act marked a turning point
in the approach taken toward the problem of water pollution control
in this country. Whereas past legislation had endorsed the practice
of allowing certain waters to remain severely degraded to permit
industrial and other uses, the 1972 amendments rejected this concept
and adopted the view that "no one has the right to pollute--that
pollution continues because of technological limits, not because of
any inherent right to use the nation's waterways for the purpose of
disposing wastes." The new law rejected traditional reliance on
the assimilative capacity of our waterways and made it clear, as
Senator Muskie stated on the floor of the Senate, that our "streams
and rivers are no longer to be considered part of the waste treat-
ment process."

In implementing these new principles, the 1972 amendments recognized
and came to grips with economic and technological constraints in
such a way as to produce a regulatory program that is strong, but
workable. Also, they recognized that if water quality is to be
protected, there must be not only effective regulation of existing
sources of water pollution, but also land use planning and controls
to regulate the location of new sources.

The key goal of the 1972 amendments is "to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters."
Six national policies are set out as means by which this goal can be
achieved. These policies are that:

(1) ...the discharge of pollutants into the navigable waters
be eliminated by 1985;

(2) ...wherever attainable, an interim goal of water quality
which provides for the protection and propagation of fish,
shellfish, and wildlife and provides for recreation in
and on the water be achieved by July 1, 1983;

(3) ...the discharge of toxic pollutants in toxic amounts be

(4) ...Federal financial assistance be provided to construct
publicly owned waste treatment works;