Title: Inherent Difference Between Water and Other Natural Resources
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003134/00001
 Material Information
Title: Inherent Difference Between Water and Other Natural Resources
Physical Description: Book
Language: English
Publisher: University of Michigan
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collections - Inherent Difference Between Water and Other Natural Resources
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003134
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


Earnest Boyce **

As the need for water utilization develops to the point of competi-
tive demand, our best interests will be served by the further evaluation
of the functions that this resource must perform and an extension of the
principles of law that will establish the orderly procedures necessary
for the highest development of this resource consistent with society's
economic needs.
When we tabulate the natural resources that man, with science-
directed skill, has utilized to build the foundations of the economy that
we know, we may classify these resources in many ways-all of them
except water.
As a resource, water is a requirement so basic to man's exist-
ence that all other resources are either dependent on its plentiful sup-
ply or, in its absence, valueless for man's use and development.
Our lands, with their capacity to produce our abundant food sup-
plies, our forest and fiber needs, and all the renewable resources of
organic growth, are dependent for their productiveness on the timely
availability of this resource. The conversion of our mineral resources
into the useful products of our manufacturing industry cannot be ac-
complished without the availability of the necessary quantities of process
Finally, we should note that man himself, as a living being, re-
quires the constant availability of safe, palatable water for his physical
and domestic needs. And through a knowledge of modern sanitation, he
has learned the health and comfort advantage and necessity for the
water-borne removal of the wastes of human habitation and of industry.
While many of our natural resources vanish with use, most water
usages produce changes in the position, quality, and/or quantity of the
water, depending on how it is used. The multiple usage of the re-
source, water, within one hydrological cycle, is frequently an economic

*Paper presented at the Conference on Water Resources and the Law, Uni-
versity of Michigan Law School, September 4-6, 1957.
**Professor of Municipal and Sanitary Engineering and Chairman of the De-
partment of Civil Engineering, College of Engineering, University of Mich-


Water power energy may be recovered from a change in position of
the water as it moves on its way by gravity to some lower elevation.
This energy recovery may not offer serious water use competition so
long as other energy sources are available, for the water remains un-
changed in quantity and in quality. This is not a consumptive use of the
However, many of the necessary uses of water do produce changes
in either its quality or quantity. A change in quantity is usually the re-
sult of evaporation or transpiration loss, as for example, in irrigation,
lawn watering, evaporative cooling, and non-condensing steam produc-
tion. Water quality changes are produced when the use of the water
causes it to pick up and carry, in solution or suspension, substances
not previously present. The water resource significance of this change
in quality is to be found in the cost of the reprocessing of the used
water for subsequent re-use, or in the possible limitation of the re-use
potential due to the fact that the reprocessing procedures of water
purification, including sewage and industrial waste treatment, do not
effect a 100 per cent removal of substances that may have been added
by its usage.
With the increased demands for the use of water in the many manu-
facturing and industrial processes, a new form of what might be re-
garded, for lack of a better classification, as a consumptive use of
water, is emerging. When an industrial process so changes the quality
of water as to make it unfit or unsuitable for further re-use, and when
known water treatment processes, short of evaporation, are unable to
remove the effect of its prior use, not only is that volume of water ef-
fectively consumed as regards its potential re-use, but, unless con-
fined in permanent storage, it has the capacity to deteriorate the quali-
ty of the diluting water into which this industrially used water is dis-
charged. The process water used in the preparation of our atomic
fuels is one example of this type of water usage and there are many
However, it is not so much the varied ways that water may be used
that set it apart from other natural resources. Rather, it is the unpre-
dictable variations in the quantity available from rain or snowfall in any
period of time and in any locality. While no natural resource has been
more amenable to man's control than water, no resource has so baffled
him with its cyclic variations of flood and drought. As usage demands
approach or pass the available water supply in periods of drought, a
shocked public concludes that the water resources are failing and that
something must be done about it. Then, suddenly, the picture changes
and floods replace the shortages and public interest ebbs.
Because the usage demand of industry and the domestic water sup-
ply of industrial areas continue with some degree of uniformity through


seasons of drought, it follows that this demand must be supplied from
some form of natural or constructed storage, or a combination of the
two, so that waste flood waters can be controlled to equalize the source
of supply.
Because of the ever increasing demands for water to supply the
needs of an expanding economy, well-planned expansions of suitable
and economical water control measures are becoming increasingly im-
In certain of the arid sections of the United States, where the
availability of water controls land use, water control development has
approached an economic limit that is fixed by the increasing cost of
storage over a lengthening period of time as nore and more of the
waters of the less frequently occurring floods are impounded for use.
While the situation in the more humid regions of the United States
is, in general, less critical, a failure on the part of those who plan the
expansion of certain industries, with heavy water use demands, to
recognize the economic significance of the cost of water supply develop-
ment to meet these demands, may easily create serious local supply
The present interest in the legal aspects of water use and control
stems, in part, from an awakening realization that the once ample
water resources of the eastern states are in certain areas no longer
adequate, without further development, to meet the maximum use de-
mands being placed upon them. In many instances, a regulation of flow
through the construction of storage facilities may be indicated. In
other situations, heavy water control expenditures might be avoided if
some legal restriction were to be imposed on the development of cer-
tain land areas for usages that will require unusual volumes of water.
In other words, many of our water shortage problems in this section
of the United States are man-produced in that too often there has been
a tacit assumption that the existing water resources were adequate for
any land development need.
The availability of water for use or development and the possibility
of discharging used water, without damage to others who may be de-
pendent on the receiving body of water as a supply source, and at a
cost that can be borne by the development creating the demand, should
be established as a basic criteria to be met by all who plan changes in
land use.
Unfortunately, the basic hydrological data needed for a reasonable
evaluation of the water resources of many important river basins are
too inadequate to provide a sound basis for planning the developments
needed to meet future requirements.
The Commission on the Organization of the Executive Branch of the
Government, known as the Hoover Committee, as the result of its


study of water as a natural resource, noted that "It is self evident that
if a water resource project is to yield maximum benefits at the lowest
possible costs, its planning and construction must be based on adequate
and reliable data concerning all social, economic, and physical aspects
of the project. "1 The report goes on to state that:

The really disturbing thing is that so little progress has
been made in obtaining reliable hydrologic data in advance of
project planning and construction. Though the necessity for
more adequate data has long been recognized, we find ourselves
embarking on the most gigantic water projects ever devised
with alarming gaps in our knowledge of the probable behavior of
the waters we are trying to control and utilize. So serious are
these deficiencies that it is estimated on the basis of experi-
ence that the limit of error or ignorance in present water de-
velopments is rarely less than 25 percent and is frequently
greater than that.
Present knowledge of the relationships among precipita-
tion, run-off, evaporation, ground-water movement, soil condi-
tion, vegetal cover, transpiration, etc., is far from complete,
but our greatest shortcoming has been the failure to provide
sufficient funds for the utilization of rain gages, snow surveys,
stream-flow measurements, evaporation stations, run-off and
erosion studies, ground-water observation wells, water-quality
analysis, and other established methods of obtaining data essen-
tial to the planning and construction of river development proj-
ects. Continuous application of these techniques over a period
of years is required to furnish reliable data, yet not infrequent-
ly the first intensive efforts to apply them are coincidental with
the commencement of a project study. Few areas are even
adequately mapped for water development purposes.2

Unless these basic data are obtained in advance of development,
there can be no sound basis for the allocation of the water resources.
The collection of scientific data has little popular appeal and many
state budgets fail, as the Hoover Report indicates, to make reasonable
provision for obtaining data that must be collected over a period of
years to have design value. .The proper development of water re-
sources, both from the standpoint of increasing the quantity available
during periods of drought and the control of flood damage, is a matter
of real public concern. It is important, therefore, that conferences
such as this give consideration to legislation that will insure the es-
tablishment and financial support of these necessary and permanently

1. Task Force Report on Natural Resources [Appendix L], p. 18, prepared
for the Commission on Organization of the Executive Branch of the Gov-
ernment (The Hoover Report) (January 1949).
2. Id. at 18-19.


continuous fact-finding agencies of the state and federal governments.
We must know the measurements of the resource before we can hope to
allocate its use with wisdom and judgment.
If water use allocation were to be limited to the quantity available
from the normal uncontrolled flow of surface water and from ground
water pumpage in a river basin, it is obvious that the limit of allottable
usage would be that available during the minimum flow period modified
by ground water storage, and, therefore, much of the potential water
resource of the basin would be lost. It follows that the allocation of
water usage in amounts in excess of this minimum uncontrolled dis-
charge would require that there be an analysis of upstream flow regula-
tion including a determination of its engineering and economic feasi-
The source of water as a usable resource is the rain and snow that
fall on the catchment area of a river or lake basin. Consequently, the
land and water area of a drainage basin forms the natural areal unit for
the study of the various ways that the waters of the basin can be con-
trolled for flood protection and for use and, in some instances, for
multiple re-use.
Depending on the topography and geological formations, river
basins vary widely in their capacity to equalize naturally the discharge
rate of rain and snowfall. The filling and subsequent drainage of per-
meable formations in the river basin provide the dry weather river
discharge. These formations also provide the underground water
storage, recoverable through the use of wells. In some basins the
storage capacity of the permeable formations may approach that which
is necessary for a full control of the river discharge. In other basins
the storage potential of river valley aquifers can be greatly increased
through a development of recharge areas tributary to well fields.
The planned development of the water resources of any river basin
requires that all these basin factors be studied as an integrated unit.
While public and economic interest in the water may vary along the
course of the river draining the basin, it is the same runoff water that
passes each section of the valley, and changes in its quantity and quali-
ty are the product of its control and use through the length of the valley.
The destructiveness of our floods is evidence that the developed
land usage of the flood plains of a river is competitive with the need
for the same flood plains for the passage of floods that originate up-
Not only should the development of the water resources of a river
basin be studied as a unit and a mutually acceptable policy of use and
control be developed, but public works based on these studies may
need to be basin-wide in their scope to secure the highest development
of the water resources of the valley; again, consistent with society's
economic needs.


Aside from flood control, much of the legislation authorizing the
development and financing of public works relating to water resource
development has been enacted to meet the situations that confront
cities and other political subdivisions concerned with a definitely local
water supply problem. Water supply has been too long regarded as a
utility problem having localized interest. Consequently, each unit of
local government has been compelled to operate within its limited
jurisdiction to secure the water supply development that its growth re-
quires. There appears to be a need for an operable and functional
agency of government with the freedom of action necessary to coordi-
nate the varied interests of a river basin into a unified plan.
In these opening remarks, an attempt has been made to point out
some of the special problems of water control and development that
make this resource inherently different from others and to indicate a
few of the legal aspects of these special problems.
This is not a new field of research and investigation, and many ex-
cellent studies have been made by the agencies of the several states and
by the federal government.
If, as the result of this conference, some new thought can be
brought to bear on this important subject, some concept of how to inte-
grate what we know about water resource development into a workable
and legally acceptable way of acquiring, under the democratic pro-
cedures of government, the benefits that can be had'; then this meeting
will have been worth-while.

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