Title: Unedited Transcript - Symposium on the Law of Water allocation in the Eastern United States on legislative alternatives, further studies needed, etc. (Prof. Jacob H. Beuscher, Chairman)
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Title: Unedited Transcript - Symposium on the Law of Water allocation in the Eastern United States on legislative alternatives, further studies needed, etc. (Prof. Jacob H. Beuscher, Chairman)
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Language: English
Publisher: The Conservation Foundation
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Abstract: Richard Hamann's Collection - Unedited Transcript - Symposium on the Law of Water allocation in the Eastern United States on legislative alternatives, further studies needed, etc. (Prof. Jacob H. Beuscher, Chairman)
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 56
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Full Text


Symposium on the Law of Water Allocation

in the Eastern United States

October 3-6, 1956
Cosmos Club, Washington, D. C.

Session on Saturday morning, Octo' e. 6


legislative alternatives, further studies needed, etc.

(Prof. Jacob H. Beuscher, Chairman)


30 East 40th Street
New York 16, N. Y.

October 6, 1956

The Symposium on the Law of Water Allocation in

the Eastern United States, sponsored by the Conservation

Foundation, convened at 9:10 o'clock a.m., in the Assembly

Hall, Cosmos Club, Washington, D. C., Professor Jacob H.

Beuscher, University of Wisconsin Law School, presiding.

CHAIRMAN BEUSCHER: We will pick up from where

we left off last night. We got started under the general

topic of "Legislation and What Kind." I thought we might

perhaps want to continue.

We had, as you recall, a suggestion about cut-off

provisions in legislation, if adopted. I am sure that

someone may want to talk to the point of whether we ought

to have any legislation. You are privileged to do that.

Also, I think we will all agree that perhaps it doesn't make

too much logical sense to talk about legislation until

we talk about the second thing, what studies do we have,

what do we know now, what do we need to know in order to


Let's start off. All these things are inter-

related, and I think they will knit together as we go along.

Let's start off, if you don't mind, with the topic that is

down here in our outline, "Possible Legislative Alternatives

I thought perhaps it might be well to just point

out in the beginning that we had in the course of one of

our discussions a suggestion that perhaps all we needed

to do in some of the riparian states was to enact a

statute that would say, "The reasonable use doctrine

shall prevail as to surface water, ground water, possibly

as to diffused water," and also say to the Court, in

effect, "There is such a thing as a hydrological cycle.

Pay attention to it in deciding cases."

Is there anyone who wants to say anything about

that as a way of going at it? I suppose you could go on,

if you wanted to, and say, "Well, these ambiguities, some

of them at least in the riparian doctrine, might be cleared

up in this kind of statute, as to whether, for instance,

one who owns merely an easement along the bank can pump."

This might raise some constitutional issues.

That is a possibility.

MR. MARQUISt I think perhaps I may have made

the suggestion. I would say that in my mind it would not

represent any final solution of the problem, but that it

might be helpful as an interim step, at least in states

which are not ready to go further at this time.

MR. TRELEASE: Do you mean legislatures which

are not ready to go further, or the courts which are not

ready to go further?

MR. MARQUIS: Or the people which are not ready

m3 to go further.

MR, TREEASE: I wonder if you wouldn't raise

much the same due process arguments that some of these

more drastic proposals would raise?

MR. MARQUIS: I would doubt it. I would think

myself a mere redefinition of common law and terms which

other common law jurisdictions recognize would not raise

the due process question.

MR. TRELEASE: Unless you get the person who

claims that he always has had this right to the natural

flow and now the legislature has taken it away from him.

MR. HABERW I would like to speak to that. As

far as I know thus far, and maybe Mr. Ellis can correct

me from his experience, in the eastern states there is

very little real natural flow doctrine. There is some talk

of it in various early opinions, but wherever you get

recent cases, you get a breaking away from the natural

flow doctrine, and the only thing that you can say is that

in some states, like Mr. Ellis illustrated in North

Carolina, there are a number of decisions which are not

clear, which contradict each other, which seem to apply

natural flow to some areas and not to others. But I don't

think that any court in an eastern jurisdiction would feel

compelled by the force of its precedent to say that we

cannot possibly sanction this statute because it violates

a right which is so clearly established in our state.

So, if the legislation has any kind of merit at

all, as this probably would have, I don't think that you

are going to get a court to put it back up again in the

eastern states.

MR. TRELEASE: I don't know of any western

experience either, except that the California court had

to decide whether or not an amendment to the constitution

was constitutional once.

MR. HABER: As you know, the background of that

was that you had very strong economic interests dependent

on a particular doctrine of natural flow, which as far as

I know, doesn't exist in any eastern state. The only

interests that would be dependent on that, as far as I

know, would be to direct the issues. They are protected

by independent doctrines. They don't have to rely on the

flow doctrine,

They can, in most instances, rely on public

rights to fishing, hunting, that exist in the so-called

public waters. There may be some recreational interest

that might be pushing for an extension to smaller waters,

but the natural flow doctrine wontt help them very much,

because all that would mean is that the private landowner

in those smaller streams could use them for fishing, or

whatever purpose, and they are not too concerned about him.


m5 5

There may be some landowners like that that would be

interested. But I don't think they constitute a very

important economic interest.

CHAIRMAN BEUSCHERt It may be, if I can break in

for a minute, Dave, that we ought to bring about really a

consummated wedding here of the second-class citizens and

the first-class citizens. We have plenty of room up here

for the observers; we urge you to participate,

Maybe what we should do in looking into this

question of what kind of legislation, it may be that we

ought to get to the $64 questions Should we shift to the

appropriation doctrine or not? It seems to me before we

start talking about that in general, we might ask some of

our friends from the West to describe how this so-called

appropriation doctrine is really operating down at the

level where the water is distributed.

To that end I have asked three members of the

group to sort of prepare themselves and say ten minutes'

worth on this general question of the appropriation system

in operation, and anything else they want to add. I will

ask these men to talk, and then we will open the discussion

to anyone who wants to say something. Mr. Huffman, would

2 you like to address yourself to that?

MR. HUFPMAN; When Professor Beuscher asked me

if I would like to aske a few remarks this morning, I

_1IIIC------_l~-- I_ ~

wondered a little bit what I might summarize which would

be worth taking the time. I wondered a little bit if I

was in the same position of a friend of mine who gave a

talk recently in a drought area of the Southwest, and

said afterward that when he came out of the auditorium he

heard a couple of farmers talking. One said to the other,

"What did you think of that?" And the other replied, "I

think a half inch of rain would have done more good."

So, I will try to make a few points that may have

some application to this application of eastern water law.

As far as I am concerned, I suspect I would have to admit

that I may be more of an institutional economist than a

theoretical economist, such as you heard in action yester-


As an economist, my first concern turns out to

be, at least pretty quickly, how do we go about implementing

any economic model we put together; how to apply it to a


I suspect that the Western United States then

does illustrate some of the ways in which an institutional

pattern might be developed in a peculiar set of problems.

In this respect, I find myself again emphasizing

the point that I think I have emphasized a couple of times,

that sooner or later whatever you come up with is going to

have to provide for implementing and probably encouraging

group action. In that respect, I was encouraged,at least,

that I wasn't too far off in my own thinking of what kind

of problem you might face in the East when I heard Mr.

Jordan say last night that you were going to have to be

concerned with storage and transmission of water. I had

kind of assumed that. I thought maybe that was so because

that is the problem in the West.

It seems to me that is one of the major problems

involved in this thing of increasing the economic supply

of water. If that is true, then you face very much the

same sort of problem that was present in the evolution of

western water law. In the West long ago the people

recognized the importance of group action and have organized

their activity with respect to water to promote and en-

courage group action.

So, in trying to think how any kind of change in

water code or a new water code might work, I think first

of all I have to put it in that context. Specifically, I

thought I might prescribe for you, very briefly, one of

the operational situations in Montana where we have an

operating state agency in the development and use field

in water. This is not a state agency that administers

water rights I might add that this particular state

agency which develops water projects, actually operates

under what I consider to be the most cumbersome administrat'

__1__ ----III~L--^--CIIII---I~___-

system for the water rights themselves that you find any

place in the West.

As you all know, the western appropriation

doctrine is ordinarily divided by most people in that field

into three subdoctrines. One they call the California

doctrine, which is itself a riparian doctrine, with all the

modifications attached to it. The second one is the

Wyoming doctrine, which is based on the point that the

constitution of Wyoming and some other states that have

the same approach say that the water belongs to the state,

which means that you have to go to a state agency to get

the right to use water. Then there is a third one which

is called the Colorado doctrine, which says the water belong

to the people. That is the one that is in the Colorado

constitution, and also happens to be in the Montana consti-

tution. In Montana it is operated this way: That anybody

who wants any water can go out and appropriate it.

In the beginning they did it by hanging a note

on the bush alongside the water that they were appropriating

so much water, and then they started in to record it. In

Montana we have no central system for water rights. They

are recorded in the county. Yet within that sort of frame-

work of an extremely cumbersome management system, we have

a state agency which has succeeded in carrying on a

considerable amount of water development over the last 20

_ ___ 1___; -- __~__~_ -11----_--_-____1-11i~--------

years, and has done it quite successfully.

Our Montana water conservation board was an

outgrowth of depression drought conditions, and may account

for the fact that most people who look at our legislation

say it is the most liberal enactment that the state legis-

lature ever passed. They passed it under the pressure of

depression and drought. In reading it, as far as I can

see, there is literally nothing that the Montana Water

Board cantt do in the water resource field if they want

to. So far, they have limited their activity to irrigation

development and the building of some small municipal

water systems for unincorporated towns and for providing

engineering help for certain public activities, including

primarily the building of REA projects.

In the process they have provided primary water

supply and supplementary water supply for approximately

450,000 acres of land, which I would guess offhand is about

5 times what the Bureau of Reclamation has developed in

the State of Montana in the same period in the way of new

land, in spite of all the emphasis that goes on our

federal activity. They have done it by a combination of

federal grant funds during the drought days. That was the

beginning. There have been none of those for at least the

last 10 years.

Other than that, it has been done on outright

_ ~~ ___1___11 ____1_~___



j __


appropriations from the legislature, which are subject to

repayment, plus water bonds, which have no security except

income from the project. They are not a lien against the

state itself. They have no income except from the projects.

As I say, this has operated pretty successfully.

I want to illustrate a little bit some of the things they

have been able to do under the appropriation doctrine which

indicate that we are not entirely right when we say that it

is inflexible. When I first started working very closely

with the problem of water law as related to economic de-

velopment, I was much more concerned about the problem of

inflexibility than I have been recently. In fact, I have

written some things saying that it was highly inflexible,

that it tended to restrict development, which it does, but

to the degree of the tendency is the important thing. I

said it, and Mr. Fisher, in his paper, quoted one of them.

I would say as far as the appropriation doctrine

is concerned, it is still an evolving thing, as I think

was pointed out here yesterday afternoon. There are changes

being made in it in almost every year in the way it is

applied and the things done under it. It turns out, as

very often happens, that it may be a much more flexible kind

of thing than many of us have thought at one time. The

sort of thing that Mr. Fisher outlined in his paper is

certainly appropriate criticism of the way in which it has


operated, and in particular the things that were involved

in this discussion that went on yesterday under the term

of waste,

I looked back at my copy of the paper which I

read on the way back, Mr. Fisher, and I found when I came

to the waste, inefficiency of water use that I had forgotten

all about it.

I am glad my friend Tim stayed with it yesterday

until at least two groups got the terminology together. It

has shortcomings,.but most of it is related to the in-

efficiencies in water use. I think they could come under

almost any kind of system. I think it turns on enforce-


There have been cases where use has indicated it

has considerable flexibility. I could give you examples,

For example, the Montana Water Board has carried on some

highly flexible kinds of development under the appropriation

.. doctrine. I might say that the Water Board is. in exactly

the same position as any individual, as far as the law is

concerned. If it wants to carry on a development, it has

to go to the state and file a water right. That is exactly

what it does, In the process, they have done some pretty

effective shifting in the uses of water. They have de-

veloped water for other than agricultural use, We have one

stream on which they have carried on all the development,

~II- --~ _____~_~~_~,~ -~"7

m12 12

The Federal Government has stayed out of it in a sort of

gentlemen's agreement, in that they will leave it entirely

to the state agency.

It is fairly typical, I think, in most of the

western streams that you do find the prior rights down-

3 stream. That probably results from the fact that in settle-

ment, in many cases, the people approached the stream from

.. downstream and worked up. You would find the last

settlement upstream. The upshot of that is that they have

the later rights, and they have to let the water run down

to the people below. On this particular stream that was

true almost 100 percent. The State Water Board developed

a dam about half way down the stream. So now we find the

people with the prior rights get the stored water, that

the people from above the dam get the stream water, but

the people above the dam who use the stream flow are the

ones who pay for the stored water. It is an exchange

.. proposition. So, you get more flexibility than you might


This particular operation also ties in with

another point which was raised here, in that they operate

on the basis of a water sales contract. This is interesting

because it also reflects a little bit the sort of problem

in the psychology of people that was implied here a couple

of times, at least, because the people in Montana, working

m13 13

with their state water board are accepting and using a

system which they have fought and rejected, as far as the

Federal Bureau of Reclamation is concerned, namely, a system

of water sales contracts rather than definite-set water


The Reclamation Act of 1939 provides in Section

9 (e) for contractual arrangements, sort of public utility

kind of sale arrangement, and it has been fought in most

places in the West because it doesn't give the kind of

assurance and certainty that people think they have to have

in their water rights. And yet, it has operated very well

at the state level. A couple of years ago I went to our

state Reclamation Association meeting, and like all good

organizations, when they got done they passed a series of

resolutions. They passed a resolution which in every way

condemned 9 (e) contractual relations with the Bureau and

praising to high heaven the state Water Board. I asked

the chairman of the Resolutions Committee, a good personal

friend of mine, "Fred, how can you do it?"

He said, "Well, some of these people don't really

know the difference, and we have to keep everybody happy."

So, the point is, that I think they are willing

to accept it because it is a state level arrangement and

that they think they can keep control of it, where they are

not so sure if they have that sort of arrangement with the

Federal Government.

As far as the local level operations are concerned

they operate through water users associations, who operate

the systems entirely. They do nothing but store or pump

water and deliver and get paid for it. The interesting

thing, too, is that these people who are so concerned with

water rights have nothing except what they term eventually

after 20 years a paid-up water contract, which is apparently

only a fractional interest in a water right which was filed

by the state water board. So, they don't have what they

are willing to and still do occasionally go out and shoot

each other over. It has been only a year ago last summer

that we had our last one that got shot in the dispute over

water. They don't always go into court; they are in too

much of a hurry sometimes.

They work pretty well for achieving higher uses

in agriculture. We have one state water board storage dam

out of Bozeman where I live. The city has contracted for

water out of that storage. In fact, they contracted when

the thing was started some 10 years ago, even though they

didn't know when or if they might need the water. They have

just bonded within the last two months for a million and a

half dollars for pipeline and settlement basins to bring

more water from that particular storage because the city

has outgrown its water supply.


11__1___ ________1___1_~_ __r____ll~~
-- ~~1---`-~1-1--~-~---~-~ i


The city had resold each year the water they

were holding back, They had signed a purchase contract,

and they sold it every year to agricultural users.

I am not sure that on the local level this kind

of arrangement is the best, because in some instances it

may be necessary for a local organization to have a bonding

and taxing power in order to do the job adequately, because

it was found pretty early in Western development, at least,

that you didn't go very far without the bonding and taxing


The first Irrigation District Act was passed by

Utah, but it didn't have the bonding power and they threw

it out in 2 years and passed another. There is the problem

in bringing in other users than irrigation.

I would suggest these points before I close, that

certainly no constitution is not subject to change. We

have had all of them that I have ever heard of and they

have been amended. That goes all the way from the national

Constitution down to some local club. Usually, if you

find a club with a constitution that hasn't been amended,

I suspect it is because they haven't met since the meeting

at which they adopted the constitution.

It means that things of that sort, I think, have

to be changed as the demands indicate desirable. Whether

or not any state could go to the extent that Professor

_1~1~1__~ 1_

m16 16

Wollman suggested yesterday, from a practical standpoint,

ia certainly highly doubtful in terms of just turning

everything over and the state taking over ownership, control

and distribution of water. That isn't to say there might

not be some cases where that might be the desirable

solution* But you have to fit these things in with what

is possible,

One of the books that we read quite frequently in

#... our Western country is by Walter Prescott Webb, called the

"Great Plains." He argues that the Federal Government made

the biggest mistake in its career when it didn't retain

title to all the water at the same time it retained the

title to federal lands. If it had happened at that time,

we might accept it just as naturally as we accept that sort

of system. It depends on what has happened,

I personally am a strong believer in a middle-

ground approach to most of these problems. I think that is

where we find the answers to most of them, I don't think

we find them very often on the extreme, regardless of which

extreme it is. That is one reason I thought I would mention

the points regarding the Montana Water Board, not because

it is a perfect or ideal situation, although it is studied

by a great many other states, has been by most of the

western states; and as recently as about 3 weeks ago one

of these federal research workers that Harry Steele

________________11_____1___ F__l____lll__ll___l______l


... mentioned last night was in to Montana studying it. But

I mention it as a kind of intermediate sort of thing in

which you have a state institutional arrangement that seems

to be working and getting water resources developed and de-

livering the water and solving certain problems at an

in-between level, between no organization of that kind and

complete state ownership and domination.

The fact that they do use a water sales contract

indicates somebody has to figure out the pricing system

and make some determinations of price. Some things are not

given to regulation by price, as we know. When our legis-

lative groups make decisions or pass those decisions on to

groups, maybe with certain restrictions as to how much

freedom they have in making the decision, the point still

is that somebody has to do it, and an operating agency

like our state water board has to do it. Other public

agencies that sell water have to do it,

If I am right in assuming that you are going to

increase the economic supply of water through storage and

transportation of one kind or another, somebody again is

going to have to set some sort of price on this water. It

doesn't quite fit the free market system because, as was

indicated here yesterday, it isn't in the same sort of

category in moving as freely as other goods.

I would just mention in that connection, because

~------------------------------------ ____._lr----------~-l-______lr_-____a ~

ml8 18

it comes down here on this question of studies, that we

do have under way, it has just barely started, a study in

which we are attempting to find out what sort of water

use patterns you get as a result of different kinds of

pricing arrangements.

We have just about everything under the sun in

the State of Montana that is in existence in the way of

pricing systems. We are taking all of those pricing

systems--this applies, however, only to agricultural use--

and trying to get the information on the amount of water

use, and also in order to make sure that the water use is

a reflection of the difference in pricing arrangement. We

have a real inter-disciplinary study going, because we are

relating, as far as possible, the agricultural use to the

kind of crops grown, and that kind of thing,

We have such arrangement as a set price for a

certain amount of water, a set price for a basic amount

of water, plus an excess charge for water over the base.

We have within that, we find, a situation where the excess

charge is less than the base charge, where it is equal to

the base charge, greater than the base charge. We have

this occurring under situations of limited water supply

and unlimited water supply. Out of it we hope will come

something that might be a clue in this question that you

still have, that somebody has to go through the administration

____~~_ _1~____1___________1__1_______I_ 3


pricing procedure if you are going to do this sort of


I would add this to what Professor Haar has

said, that I agree with what you said 100 percent yester-

day, that these modifications in this evolutionary process

that is going on in the appropriation doctrine, in the

West, has no monopoly, You may be able to pick them up

and apply them from the riparian doctrine, or modifications

of it. If I didn't think that, I wouldn't be outlining

some of this here,

Just one more area of comment. This is prompted

by some of the things that were said last night, which

might be best summarized, I guess, the way somebody

summarized it, by saying we should make haste slowly. I

would add to that that some people think that the water

problem is a bad dream and they will wake up some morning

and it will be gone. I don't think that will be likely to


When I talk water problems in the West, I always

start off by summarizing the population growth, the per

capital use for water, but then I add one more thing, that

all my data that I can get from the population experts and

the people I talk to tell me that they are forecasting

another population explosion, they call it, in 1965, or

thereabouts, which means simply all these young people who

--I---- I------------LII--------~II ___~__~---~


are already with us, who are creating a school problem now,

are going to get married and raise a family. I always tell

people if I could go into the diaper business wholesale, I

would be all right. How slowly you can make this haste

is the real question.

I would add only that if it is a matter of delaying:

action or hoping that no action will be necessary in order

to preserve certain values that you hold now, including

the individual freedom of action, I would suggest this

additional point, that too much delay may require the kind

of action at a later date that results in even more restric-

tion and even less individual freedom of action in the long


CHAIRMAN BEUSCHER: Thank you very much. I wonder

if Mr. Trelease would add some words of wisdom about the

appropriation system, which seems to me to grow more and

more complicated, to a fellow like myself who is completely

ignorant of it except what has been told me about it.

Among other things, it develops that the prior

appropriator may be a state water board that gets prior

right to tremendous amounts of water and then proceeds to

parcel it out on sales contracts. That, at least, I got.

MR. HUFFMAN: They have to take their turn,


CHAIRMAN BEUSCHER: Once they have gotten their

~I_ ~__ ________~ __I__~ ~

m21 21


MR. HABER: Do they have condemnation power?


MR. TRELEASE: We have heard a good deal about

the problem as to whether these laws do any good.

Mr. Wollman said in a private conversation, he

expanded the thought, "Look at California," he said. "I

think you will agree that California has the worst messed-up

water law imaginable."

I said, "I agree." He said, "Look at the State

of California and the amount of development it has," that

perhaps water law doesn't have much effect upon water use.

He didn't convince me, but Mr. Huffman almost has.

I was doing a little legal research in legal

history and found that the first Montana water case was a

case involving a man being tried for murder. He shot

another man for defending his water, but the judge said

that wasn't a defense for homicide.

I think there was a tendency in the early part of

this discussion to assume the very best about the law of

riparian rights, and I thought the very worst about the

law of prior appropriation.

I would like to start off with the thought that

Perhaps we should look for the best, not the worst, in

appropriation. A great deal has been said here about the


flexibility of the riparian doctrine, the ability of the

courts to move with the times, to make social adjustments,

to balance the equities.

It sounds so nice I almost forgot the California

cases in which the riparian doctrine was applied in an

area of water shortage. There is a great deal of talk about

compensation and the marketing operation, laissez-faire

under riparian law.

I am not sure that that is exactly right, because

many of the cases that I have read on western riparian law

have been something like this: Here is a person who has a

use for which he has made a very considerable investment,

It happens to be a non-riparian use that he is enjoining.

At first, at the free will of the downstream riparians who

insisted on the natural flow. Later, if a reasonable

user, I mean, a person wants to come along and make a

later reasonable use of it upstream or downstream, a

riparian is not in too much better position because there

are quite a few cases of a riparian who has made a

reasonable use, and then that use or a large part of it is

taken away, because other users want to make reasonable

lawful uses.

That, it has always seemed to me, was a defect

in the riparian law and one which has been slid over in

the talks here.


m23 23

The Chairman asked me if I would expand a little

bit on my remarks about the ability of appropriation law

to expand and be flexible. I think a good deal has been

said about that. I would like to look at it from the legal

side, not necessarily what has been done on it, but to

point out that the law itself is capable of change. It was

a western common law, originating in the traditional way

we think of the common law of England originating, from

the customs of the people.

It was, I think, eminently suitable for a pioneer

economy, and the pioneers acted that way. The first miner

to take water from a living stream over to a former bed of

that stream, the bed that in geologic ages had been the

location of the stream when the gold was laid down and was

not dry, he took it, and he would shoot anyone that tried

to take it above him.

I think you will remember the lawlessness of the

California gold camps, as Brett Harte has written them :up

in our literature.

As the miners became more orderly people, as

more and more of them came, and I think we should remember

that they were mostly Americans who would come from the

East and what we call today the Middle West, they got tired

of shooting each other and being shot, and they formed

these mining districts. These districts were pretty much

_ __ __

autonomous, and made regulations.

These regulations first laid down the rule of

prior appropriation, that the fellow who first located a

gold claim got the better right to it, that who first took

water to his gold claim got the better right to it.

There is some doubt in my.mind as to whether or

not we can make an absolute transfer from that beginning

to the agricultural picture, because I am not sure that the

agriculturist has really picked up the customs of the

miners. I think it went something like this The first

man who came into a valley and pulled up his oxen

said, "I think it looks nice here," and "I think I would

like to build my house over in that shady grove over there,"

and he staked his homestead, and then he dug his ditch

and scraped the sage brush off and plowed his land and

planted his crops, that the next man to come into the

valley had to take a second choice of location. He had

to take the second water right,

I think there may have been two origins of

prior appropriations, one in the mining fields, and one

less publicized by the homesteaders.

But greed and ignorance and inefficient methods

developed in the system, and the law was changed-by the

statute, it is true, into the so-called Wyoming system

of state regulation of water rights, a system evolved by

_~1~_1~ __



an engineer, Elwood Mead, and I think it has kept pace

with developments.

Water exchanges, such as Dr. Huffman mentioned,

water importations, the old rule that a person is entitled

to the stream conditions as they were when he initiated

his appropriation, has dwindled away to a rule that an

appropriator is entitled to water but a junior appropriator

may substitute any other water for it, may bring water

from another source, another ditch, may dry the stream

up as long as he makes some provision, as long as the

prior appropriator does get his water,

ThAinstitutional developments that Dr. Huifman

has told us about, the water users' associations, are an
,, -- -- i i ii
outgrowth of the mutual water company and the irrigation

district, and again today the conservancy districts have

been growths of institutions that have fitted in with that
*--- 1111 Si....i- "111 ii i *- ,- ,---,--
water law.

As I said, Wyoming initiated this system of state

control. Does that mean there was no laissez-faire and

freedom in the market? I think there still was, with a

minimum of regulation.

The project which looked most attractive, most

feasible, which could attract capital to it was first

built. That, it seems to me, is at least a fair argument.

Does the state control it? But rather curiously, most


appropriations for municipal water, of irrigation, power,

for mining, happen to coincide with the development of the

state, and therefore they were in the public interest, and

that is why Mr. Fisher finds so few cases in which appro-

priations have been denied on public interest grounds.

Most of them so far have been, it has been

believed by the administrators, in the public interest of

the state at the time the appropriation was made,

Dr. Wantrup went into the, I think, greater

opportunities for laissez-faire and the transfer of water

rights. Here again I ask you to look at the best in

western water law. If you can draw any lessons for the

East, if you can use any part of it, use what you can.

Don't adopt Arizona's law that says you can't absolutely

change an irrigation use to any other use, or to any other

place unless the land becomes completely unusable, because

of seepage. You wouldn't want that piece of law. Don't

put the baby out with the bath, because there might be

other portions of the Arizona law which might have a real

advantage for you,

I would like to mention a new change which is

coming about. It was really foreshadowed a long time ago,

when in 1890 the first Wyoming state legislature.gave the

engineer the power to deny any appropriation where there

was no unappropriated water in the source. That was first

m27 27

misinterpreted because they thought of low summer flows.

At a later time it was practically thrown away.

Anyone who filed an application for permit was

granted the permit, and the permit became a sort of hunting

license. If you could find the water, why, then the state

would say, "It is all right for you to use it."

There are many so-called flood water rights as

a result, rights so Junior that only in times of extreme

high water can they ever be used;

I could cite you the case, I won't bother with it,

of the Laramie River which flows past my door. I will

simply say that if you made a study of the Laramie River

Basin, and said this is based on prior appropriation law,

I assure you that you would probably flee that law. You

would say that you wanted no part of it, if you could look

at the history of that basin.

Our lawmakers and judges can see that, also. We

are trying to revitalize that idea.

Mr. Harris of New Mexico gave us one example of

that in the Lee Basin, where attempt is made to divide that

water up so there will be enough for all. There are other

examples of that. The districts that Mr. Huffman mentioned

frequently operate this way: The district either gets a

prime water right and the actual irrigator gets only a share

in it, or a group of irrigators who organize a district

m28 28

will assign to that district their water rights, so that

the district becomes finally the owner of all the water

rights, and it has a sort of single lump right then and

the individuals get an equal share of it.

We are trying to do that now. For instance, we

are trying in the West now to develop supplemental irriga-

tion. We know that the unrestricted use of the doctrine

of prior appropriation has led us into trouble. Me have

these junior rights who are unaecure because of what Dr.

Wantrup calls the physical insecurity. There is not enough

water for those Junior rights, and practically none for

the flood water rights.

The answer is to by new institutions and new

development bring in supplemental water. Sometimes we can

do it simply by storage, equate the flow, not really equate

it so that it flows throughout the year evenly, but hold

bac water so that it may be delivered in the periods of

time when it is needed.

Sometimes water is imported into basins. The

law of prior appropriation, with the irrigation district

added on to it, and these new engineering developments, is

gradually approaching then a system of equal rights and

a common supply.

Now, you are going to say, "It is gradually

approaching riparianism." No, I didn't say that, because


these are fixed rights in a non-fixed supply, where the

riparian right is an unfixed right. There is always the

danger that the equal right will become less and less and

less as more people crowd in to the use picture until

finally there is not enough for all.

I say that the market and the laissez-faire

system does not work too well in that situation, if I

understand my economics. I think that is where the law

of prior appropriation is moving to.

Maybe you want in the East to move toward that.

Perhaps one method that you might consider is the so-called

proposals that are the main subject of discussion here. I

think it should be noted that this substitution of appro-

priation for a system of riparian rights is a proven system

in South Dakota--well, it is not proven yet, but in Kansas,

Oregon and Nebraska, the substitution has been successfully


There has been a great deal of talk about the

confiscation, the destruction of unused riparian rights.

I don't think these proposals really propose such a destruc-

tion or confiscation. The unused riparian right is not

destroyed. For the most part, we find you still have water

excesses here. The riparian then can become an appro-

priator. He now exercises his right in a certain manner,

and he is given a time limit within which to exercise it,

m30 30

not the fixed time limit that Nelson told us about of two

years to vest his right. He has an additional time. How

long is it? He may exercise his riparian right by appro-

priating until the time comes when by so using the water

he will deprive another person of an investment because of

the prior use.

That, I think, in the East might be quite a long

time. I am not quite sure, therefore, that the talk about

destruction of unused rights is correct.

If appropriation is moving toward a system of

fixed rights in a known supply, I think maybe riparianism,

too, is moving in that direction. You may not want to

travel the same road. Maybe the district idea is better.

Maybe a district for the Paw Paw, within the framework of

riparian law.

, I could see a district in which perhaps a

majority might assign all riparian rights to this district

organization, and perhaps we might thereby freeze out a

few dissenting minority, just as we insist that a dissenting

minority be included in such districts as you are familiar

with, the paving district, the sewer district, that you

are members of willy-nilly, you have no choice.

That very well might do it. Then you might have

an organization with taxing and bonding power to equate the

flow, to take that winter storage of the Paw Paw and use


when it is needed in the summer months. Maybe that is the

eastern solution, and a study might var wa1 ha mde then,

not necessarily further study of appropriation law, but

of appropriation institutions, the institutions that have

been developed in the West to solve their problems may be

instaititionral. that the mlpht be more acceptable than

L legally.

I would just like to leave you with that thought

for further study.

CHAIRMAN BEUSCHER: Thank you very much. I wonder

if we have comments or questions?

MR. THOMAS: I would like to mention one item about'

the agricultural use that might fit in with what Professor

Trelease has said.

As some of you may know, the first use of irriga-

tion was before the discovery of gold in California and

was by Mormon pioneers. In that development you wouldn't

get much of the history of the disputes. Primarily, they

were a religious group that came in. They were anxious to

have additions come in. To the extent possible, there was

group collective action and helpfulness. There were dis-

putes. They went to ecclesiastical courts, before Utah

became a state. That is one thing I think that has been

very important in making the appropriation system work. The

idea of irrigation districts seems to have come-after that'

m32 32

doctrine. Actually, the irrigation districts were preceded

by church organizations, communities; in other words, to

the extent possible that water might be stretched or might

be replaced to work to the advantage of the newcomer, still

recognizing that the oldcomer couldn't be pushed out. There

was that addition.

I would like to take a minute to mention one

particular river, like the Provo River, to show how

flexibility has developed in large part without legal

notice, but also to a good extent by actual recognition. It

is a stream that rises in the mountains and comes into

Utah Lake. It has a series of appropriative rights which

have been recognized in a decree of court dating from

1821 by classes rather than individuals, but still they are

all in very good order.

In the 1821 decree they recognized several

hydrologic factors, that they could irrigate in the mountain

regions what might be called waste. That would increase

the late season flow down to the plains to the west of the

mountains. That was recognized. There was a case where

what might have been termed waste, looking at the indivi-

dual spot, turned out to be a gradual seepage which came

down to bring up the August and September flow and to be

of benefit to another part of the area.

Another recognition was that the oldest rights

____ 1~1~_ I __

maj 33

which were closest to the stream could very well get water

that was what we call return flow from some of the higher

canals that were really developed separately, subsequently

and were junior rights. To the extent possible, those

oldest rights really get waste water from junior rights,

That is recognized in the decree. It is going to happen,

anyhow, hydrologically. If they had their full initial

rights, plus the waste water from the higher canals, they

would be flooded out.

Then, in time, reservoir storage has been put on

the river. But it has not been by the river water users,

which include not only irrigation but municipal interests.

The Bureau of Reclamation has put the Deer Creek reservoir

on the stream. It imports water from another stream. One

of the requirements is that the natural flow in the Provo

will continue undisturbed to satisfy the decree's rights.

This reservoir that comes in on top, then, is

just a floating reservoir. It is working under contractual

arrangements. Some of the people who are Provo River

water users also have contracts which the Bureau of Re-

... clamation supplies. Some of that supply goes to Salt Lake


In those contracts I don't think there was a

question at all as to which use to serve* The Bureau was

anxious to sell shares because there is a repayment involved

m34 34

in that dam. Salt Lake City purchased about half of the

shares. The Salt Lake City Metropolitan district is

essentially only the city. The county at that time was a

group of farmers with an adequate water supply and were

not interested, and now the county is a group of suburban-

ites who are interested in water. That is not working out

to advantage because there is the water to be sold. These

new users who were not representative at the time the dam

was built are getting their water. Of course, they are

paying to the city, and that is going to the Bureau There

are contractual arrangements.

I think basically the requirements in the system

of appropriation are that you have an assurance of water.

They have tried to get an assurance of water. It is only

when they don't have that assurance of water that they want

the assurance of a water right. Then you get into trouble.

But to the extent possible, the development has proceeded

and your appropriation system, as opposed to legal cases,

has gone along with it and grown with it and shows flexibili

to adjust to it.

CHAIRMAN BEUSCHER: There is a factor that hasn't

been mentioned, just shifting the scene to the eastern

states for a minute, in connection with riparian doctrine,

I am pretty sure this isn't a major thing. But I grew up

in a county which decided that the banks of the few-streams

m35 35

in the county ought to be converted into public parks.

And now that planning has been accomplished over a period

of about 35 years, and most of the land along the streams

is in public parks. Industry is back from the stream a

considerable distance. Big industry is pulling water out

of the ground, and you have in some places there, at least,

a pretty serious problem as the water table goes down.

It is possible that if we had a little looser

system of law under which industry could have gotten some

of the water out of the stream, and some out of the ground,

that the balance would have been preserved in a better way.

At any event, this idea that it may be that you want a

substantial area along your rivers used for public recrea-

tional purposes is something that I think ought to be said.

I am speaking of Wisconsin, Milwaukee County.

MR. MALONEY: I would like to say one word about

the district approach. I have to agree with Mr. Trelease

that this may well be the solution to the problem, but I

don't like to see it labeled an appropriation institution

because of the fact that we have thousands of water district

in a state like Florida which started off mainly as.b

... districts, because our primary problem was one of disposal.

They have been switching to more irrigation dis-

tricts. Iowa has, and they are not necessarily an appro-

priation institution.



--11-1~-~1- -_-__11__1__ 1~--- II_ _._~_____~~__._ _1 11

m36 36

MR.. HUFFMAN: It is an example that can be

applied. But the idea of conservancy districts in the East

has been as a disposal device. That is true even in

New England, where it is used for flood control and sewage

disposal. It is only recently that it has been used as a

device for supplying and delivering water.

MR. MALONEY: When they are used that way, by

custom rather than case law, they are dividing up the

supply. That is happening in Florida, and we have no

cases adjudicating what they can do within the district,

but they have taxing power. In fact, they do divide the

supply among the people taxed. Generally there they do

not use the natural streams. They do it by way of irriga-

tion canals. The law is not quite as well settled as to

what you can do there, and they simply divide up the water,

MR. TRELEASE: I didn't mean they were an appro-

priation institution. It might well fit into a riparian

system. I think one other thought on that: Legislation to

clarify case law might be to add to that some assurance that

the storage of water for later use was a proper riparian

use, because that was an unsettled question in western

riparian law. The California court said you could not do


If that approach is taken, perhaps that might be

combined, that particular clarification.

m37 37

MR. HUFFMAN: I wonder if you need clarification

on freedom for transporting water as well as storing? I

don't know.

MR. TRELEASE: I presume you mean by that the

western system of private eminent domain powers for ditch

rights. That might well be,

MR. MALONEY: We have had that in Florida since

the passage of our constitution. There have been rights

that were put into our first constitution which provided

for drainage of one man's land across another for private

appropriation. These concepts are not used--they are Just

used in a different way, I think.

CHAIRMAN BEOSCHER: Are there other comments?

MR. FISHER: The other day when Mr. Daniel asked

about these bills, statutes to facilitate storage, I think

I was the only one to get a crack at them. I think there

are more people who may know about them. Maybe Harold

Ellis may know more about the Kentucky, Indiana statutes

and what is being considered in other states to supplement

the riparian case law in some way by trying to encourage,

facilitate storage of water.

MR. ELLIS: I would visualize this type thing as

being a very important adjustment that might be made in

eastern water law, to the extent that it is not clear that

that can be done, which I would say is the case in a great


m38 bulk of the eastern states.

The Kentucky, Virginia and Indiana proposals

along this line each take a somewhat different line. One

simply declares that this can be done as a rule of law.

So far as I can see there is no necessity to obtain a permit

from anyone, It simply declares it is a rule of law. The

Indiana proposal also ties to this the requirement that

you obtain a permit from a state agency before you go ahead.

The Virginia proposal puts this in the hands of the local

courts. It doesn't say before you go ahead you have to go

to the local court, but if you want to obtain more assurance

that you can do this, you may step into the local court

and have a hearing, have other interested riparian owners

come into the hearing and get a decree from the local court

that you may go ahead.

The Virginia proposal would limit the use of the

stored water, however, to riparian land.

There is a question on that point as to whether

other states would want to put such a limitation, since

we are dealing here with water, that if it is taken out of

the stream in periods of high flow and no one is damaged,

I think there is a good argument for saying why not make

this available for use on non-riparian land also.

The Kentucky and Indiana proposals are not so

clear on that as to whether you could use the water on


non-riparian land or not. Possibly the courts would rule

that there is a similar limitation there.

Another thing that comes up in connection with

the Virginia bill is an attempt to define riparian land.

I think we need to pay particular attention to this, if

... the decision is made, for the time being that you stay with

some element of the riparian doctrine.

In the Virginia bill, riparian land is defined

for the purposes of this bill--whether it would apply also

to all riparian use in the state, I doubt. It says, "for

the purposes of this bill that it would be defined as

land within the watershed of the stream, but that all land

under common ownership which touches the stream would be

riparian land even though it had been bought in separate


It is not entirely clear from the wording of the

bill as to whether this means riparian land in such condi-

tion at the time of the enactment of the bill or whether

there is a possibility that in the future someone could

expand their riparian land by simply having a non-riparian

owner buy up riparian land and attach it to his land and

make that whole tract riparian land for this purpose.

I think that is an important consideration,

because if it does mean that, practically all land in the

watershed of the stream then could eventually become riparis


m40 40

land for this purpose.

Is Mr. Daniel here?

[There was a cry of, "He has gone."]

MR. ELLIS: He would certainly have something that

he could add about the Virginia bill, if he were here.

They did, I understand, get into a bit of a prob-

lem over the fact in this connection that a stream was

defined so as to lead to the possibility that almost any

stream which had water flowing in it only a few months out

of the year might possibly be construed as a stream. There-

fore, it is of grave concern to a number of farmers who

want to build farm ponds, as to whether they would have to

run into a local court in order to go ahead, even though

they were only trying to put a dam across an essentially

dry draw.

CHAIRMAN BEUSCHER: What does this Virginia bill

say about transportation of water? I am thinking about

municipal water supply and the fact that a municipality

might own a piece of land bordering on the storage

facility. Could it pump a dozen miles away?

MR. ELLIS: I do not believe so, as I recall the

bill. It limits it to the riparian land. If you expand

the concept of riparian land so it can be expanded to

include the whole watershed, why, it might be that the

municipality could somehow obtain the rights to do that.

m41 41

A related provision that is very important in

the East is not simply the question of putting a dam

across a stream, but also piping or pumping water into an

offstream pond during the periods of high flow. The

Virginia bill says nothing about that, as I recall it.

But I believe the Kentucky bill Coes provide that, either

the Kentucky or Indiana bill does definitely provide for

that type of possibility,

Again, in the East I would say there is a

question in a number of states whether that can be legally

done. Of course, if no one is actually damaged by this

procedure, there is not apt to be many lawsuits arising

over it. So, this whole procedure is more a matter of

making the rights somewhat more secure than they are now.

I should add in connection with all three of

these bills that I have been discussing, they all talk

about not interfering with other uses of the stream. Well,

the Virginia bill in particular says that an overriding

condition apparently, even after you obtain the decree,

would be that no one is damaged by this procedure.

So, there is some possibility that a man might

have to pay damages even though he has obtained this


I did not complete my discussion of the diffi-

culties they got into in connection with this Virginia


m3 to go further.

MR. TRBLEASE: I wonder if you wouldn't raise

much the same due process arguments that some of these

more drastic proposals would raise?

MR. MARQUIS: I would doubt it. I would think

myself a mere redefinition of common law and terms which

other common law jurisdictions recognize would not raise

the due process question.

MR. TRELEASEt Unless you get the person who

claims that he always has had this right to the natural

flow and now the legislature has taken it away from him.

MR, HABERt I would like to speak to that. As

far as I know thus far, and maybe Mr. Ellis can correct

me from his experience, in the eastern states there is

very little real natural flow doctrine. There is some talk

of it in various early opinions, but wherever you get

recent cases, you get a breaking away from the natural

flow doctrine, and the only thing that you can say is that

in some states, like Mr. Ellis illustrated in North

Carolina, there are a number of decisions which are not

clear, which contradict each other, which seem to apply

natural flow to some areas and not to others. But I don't

think that any court in an eastern jurisdiction would feel

compelled by the force of its precedent to say that we

cannot possibly sanction this statute because it violates


bill, As I understand it, they have been pretty well taken

care of, because the Attorney General has interpreted the

bill to mean that it is not mandatory, and that therefore

the farmers would not have to actually obtain a permit to

build a farm pond. But that did have them bothered for

some time,until they got that clarified.

CHAIRMAN BEUSCHERt Do you have anything to add

to this matter of legislation?

MR. HABERi Yes, I would like to make a few

comments. I think we have to distinguish here between cer-

tain problems and situations which I think have been very

confusing throughout the country.

People have auked the question: Will legislation

produce water? The answer obviously is that legislation

in itself can produce it if it is development legislation,

appropriation of money for the development of water, and

that is part of water law.

If you are talking about water allocation legis-

lation, it 9bviously produces water for certain people at

certain times.

The whole question of development and allocation

is an interrelated question, because if you have certain

types of uses along a stream, and let's say a municipality

needs an additional water supply, then there may be two

alternatives in certain circumstances, It may be possible-

_1_1__1____ ~_~________1_____1___


to say that certain users along the stream should be cut

down or cut out and we should use the water that we have,

or it may be possible to say that we should develop addi-

tional water in order to satisfy the new municipal needs.

Those are two alternatives.

If you take this away from the static situation

of a particular time and project it into the future, then

these alternatives are future alternatives, namely, should

we allow certain uses to develop along this stream, where

we anticipate certain other needs, such as additional

municipal supply needs, or should we in our future plans

say that we should let these uses develop along the stream,

because in the future we want to develop more water for the

additional municipal supply needs,

Sometimes these alternatives are not even possible

because in certain areas development may be a completely

impractical alternative. The cost may be so prohibitive

that right at first glance you can see that it is not a

practical alternative. In other instances the cost of de-

velopment may seem feasible, but whether you choose that

particular alternative or choose the alternative of a

different pattern of allocation will depend on the specific

cost, namely, without a relative cost of developing more

water in relation to the total productivity that you are

going to achieve as against the cost of leaving the water

supply as it is and the total productivity that you are

going to achieve when you cut certain uses out.

Into this picture you also bring the possibility

that certain users might be able to go to other sources of

supply, but they will go to other sources of supply only if

you anticipate these alternatives. If you tell them that

they cannot use this water, they may go somewhere else

where it is possible for them to use this water.

If you don't say anything, if you do not have

any kind of regulation, they will start using this water

along the stream, and a certain pattern will be established,

and then later on when additional needs are developed, the

only alternative might be additional development or buying

out the investments of these particular users who have

established a use pattern along the stream. Tihajutgain

becomes an alternative cost question. Do we want these

use patterns to be established on streams even at the risk

of having to buy out their investment when future needs

develop? The cost picture will change then.

Before we were talking about the alternative cpst

of development versus the alternative cost of leaving the

supply as it is, with the alternative productivity of one

pattern of allocation against another. Once you have a cer-

tain pattern established, then you get the question of

alternative cost of development as against alternative oost


of buying out the investment of other users,

There are human factors that are involved. tao,

that cannot be always described in terms of money. When a

farmer settles in a community and becomes dependent on

irrigation--well, we were talking yesterday, of course, in

the real arid West about the situation in New Mexico where

you have to relocate farmers,

Relocation is, I imagine, a distasteful thing

to most farmers even though they get paid for it. I don't

think they like it. I think it is a human cost that we

cannot easily measure in money terms.

From all these points of view, the question

arises to my mind as to what extent, what degree you can

anticipate water use patterns and antrMpat. thAAf relative

costs of development and different allocation patterns,

relative productivity, and regulate therefore the use

pattern somewhat ahead of time,

My point of view therefore is that if it is

feasible to do that, and there we need the help of

economists, but it is not completely an economic question,

I think the people who have said, "Well, who is going to

say what is the optimum benefit," or "What is the optimum

use," do have a point.

I don't think economists can always mathematically

determine what the optimum use is, I think what they can

do is supply us with alternative patterns where they will

use their imagination and instruct us, give us some insight

on the consequences of alternative patterns. But the

ultimate question of what is the best pattern is a matter

of democratic choice. It is a question of what the people

want. So that when you are talking about optimum use

pattern, we are not talking about a mathematical formula.

We are talking about an intelligent choice,

We cannot make an intelligent choice unless there

are some people around, and you will admit that those

farmers are not going to figure it out for themselves, or

most ordinary citizens, that some people must be around who

will present us with alternatives and with the consequences

of the situation so that people can make a choice.

So that in water the same thing ought to take

place that takes place in city planning in order to make

it a little better. But it wontt be much more perfect,

namely, there will be a group of people who will get

together after long discussion and make u some kind of

pattern, alternativepattern and then the pressure groups

will get to work and the democratic principle of choosing

the better use pattern will get to work in the light qf

a proposal, or in the.light of alternative proposals.

What we need then, I feel, as far as legislation

is concerned, that can do any good at all, is a planning


agency in the water field that develnpa alternative una

patterns. Then the matter of actually putting these use

patterns into effect is a question of choice of administra-

tion. It is possible, I think, to even do that through a

juicial system, It is possible to have what I called

yesterday "stream allocation decrees," and to bring the

administrative agencies into the court to make suggestions

to the court aa to alternativejusJatterns.

I donlt think it is the best

it is very cumbersome and probably very expensive. If the

agency itself has the power to grant rights and permits on

the basis of such a use pattern, it would probably be a

simpler procedure, with the court simply having a power of

granting, perhaps, the final decree, so that it may cut

into a completely arbitrar action of the a ency.

Of course, no matter how much democratic process

operates, no matter how wise the economists are, they are

going to make mistakes. We are living in a very dynamic

society. We have noticed that after the Second World War

that that is so, and it may go on for quite some time. We

cannot anticipate all of the developments, not even in a

general way, and certainly we are going to make tremendous

mistakes when it comes to spAneif' noti1nso So theGea-ut

be built into the system some way of changing the pattern

midstream. In other words, these investments will sometimes
r ~ ~~ ~ '" '


have to be affected. We will have to probably change our

. mind as to certain established users. and make them get

off the stream.

But the idea of planning is to keep that to a

minimum, When it does occur, there should be some compen-

sation built into the legislation.

There comes the other suggestion that the compen-

sation scheme doesn't necessarily have to be a full market

value scheme. The question was raised yesterday by some

of the economists What do we really need? How much

guarantee do we really need not to discourage investment?

That has to be found out. We know in other fields, such

as in the public utility field, investment has been en-

couraged even though the way in which profits are figured

are not in terms of any market value but are figured in

terms of some percentage return on investment.

I think a compensation scheme might be worked out

on that kind of basis, and sometimes prove less costly when

you have to make changes and alterations.

The procedure, of course, that is suggested here

does not foreclose by any means the possibility of group

organization, districts, or anything of that sort. Where

it is accompanied by enabling legislation that will allow

groups of users to organize group associations, enabling

legislation that will allow state development agencies to

_ 1__~~ ____1__11_1_~~__~__~1__~___111--~1~--_-_


dispose of water under contracts, this scheme can be very

well combined with Dr. Wollman's and the kind of thing

suggested by Mr. Huffman, because the state agency and the

users association would simply come within the general

water plan, and their rights would be subject to the appro-

val of the overall planning agency.

So, in pricing ttchnique that might work. There

you have a compensation scheme necessary because you are

removing old users. That may be a way to handle it, because

such an agency through charging for contracts would be

able to pay for that much more easily than an individual

user might.

This is a general suggestion. I could go on

into more detail.

MR. THOMAS: Would you have an alternative for

each, say, 10 million-gallon day of supply? Is that what

you mean by "alternative"? As the supply varies you can

come up with a different alternative?

MR, HABER: There you have situations of extreme

... fluctuation. Is that what you were talking about?

MR. THOMASt Yes, and in many places we dontt

know what the supply is. It would be necessary, then, to

draw up one plan for the lower guys and one for the higher


MR. HABER: This is a factual question, again

m50 50

To what extent is the lack of knowledge due to uncertainties

that God made; to what extent is the lack of knowledge due

to the lack of data in fact finding?

MR. THOMASt Wouldn't it be possible to have

alternatives regardless?

MR. HABER. If the lack of knowledge is due to

fact finding, I think one of the first steps that would

have to be undertaken is the fact-finding process. But

this time it would be geared to the problem of allocation.

I think what Mr. Harris was talking about yes-

terday, namely, the fact that in certain areas the aquifer

was studied and studied, that they had a problem and

didn't know the answer, probably stemmed from the fact

that the studies were not geared to a particular control

scheme. Therefore, the only time you could ask the

question that the hydrologist had to answer would be when

they had some particular control scheme in mind.

This is another advantage of the idea that I am

suggesting, that it will make these studies much more


We are getting basin studies and aquifer studies

all over the country. These things are multiplied. We

still don't know to what extent these studies will really

answer the crucial allocation problems when they come up,

because we dontt have any scheme of allocation in mind,


not even hypothetically,

This idea where a planning agency will try to

draw up an alternative water use pattern will also mean

they will have to ask the scientific agencies very specific

questions. It will steer the scientific agencies into

their very specific fact finding which is relevant to the

control problem.

MR. MOORE: I would like to amplify and stress

the relationship Dave brings up here with this matter of

basic information. It seems to me that if our attenfion,.o

focused in the future to limited areas or broader areas.

as the case may be, in this matter of determining what the

maximum potential supply is, what the present supply is,

what the present uses are, what the future uses may be,

based on the present pattern of use, the present growth

development in the area, then between those several factors

to look and see what the future requirements may or may

not be,

I don't think anyone is going to forecast what

the population changes are in Long Island. Who would have

guessed that Long Island would have had the development

that they have had, or any other similar area. It is going

to happen, I think we all realize.

If the planning agencies, legislative groups,

economists, the engineers, or whoever is involved, the


m52 52

recreationalists, if they have some total measure of what

the future holds, this is perhaps more particularly true

of the East than of the West, then they can guide their

sights in the direction, as Dave points out here, of trying

to anticipate or trying to direct the uses in logical,

at least as logical as those things can be, patterns.

On the other hand, let's don't forget historically

that where there has been an agricultural use of water, and

when an industrial use is substituted, we don't change

perhaps the quantity of water required. It is put to a

different use. You say that you have displaced the agri-

cultural use by an industrial use. By and large, those are

voluntary changes on the part of the individuals and not

by any directives along the line. The farmer who sells his

property for industrial development, and there is water

available, that is part of the sale. There is no problem

with that farmer.

You don't buy it from a farmer who doesn't want

to sell. We find that every day in our business, If the

farmer wants to stay there, he stays. No matter what you

offer him, he isn't interested, At least today there

are still sufficient alternates along the line where you

can pick up some farmer who is willing to sell, if it is

involved in a farming area.

It doesn't appear that we have any serious -conflic


alongthat line with respect to water supply or use for

utilization. It is a substitution affair, As your urban

developments come in and the farmer is displaced or

irrigation-type uses are displaced, it seems to me you have

substitution there.

Certainly the consumption per acre is increased

as your urban and municipal type supplies come in. There

again, if you know what the future potential supply amounts

to, you can plan, as Mr. Jordan, I am sure, can more

clearly demonstrate than myself, what that requirement

would be and how to go about it on a long-term basis.

It seems to me that our aim both legislative and

in many other ways is to direct our attention back as far

as we can to get the fundamental information about what we

are dealing with and what that amounts to now and in the


CHAIRMAN BEUSCHER: Thank you very much, Mr.

Moore. I wasn't going to indicate to you that there was

something on the other side of the board until we have

coffee. There is. I think you will find that we, as one

would suspect, have talked about several of these points.

Legislation has led us into immediately considera-

tion of studies, what kind, and into some problems of

inter-governmental relations, which are over on the other

side of the board.


When we return from coffee, and before we go on

to other subjects, perhaps, Mr. Marquis, if you would just

review quickly some of the suggestions that you made, or

all of them that you made in your Tennessee law review

article, and anything else you want to say about specific

legislative alternatives, that would be good, and then we

will move on.

[Mr. Bergen made announcements.]

[A short recess was taken.]

CHAIRMAN BEUSCHER: Charles Haar has a plane to

make, and Mr. Marquis has yielded to him for a few comments,


MR. HAAR: I want to catch the plane. In fact,

after what I have to say, I may have to catch the plane.

We were trying to determine, when Mr. Marquis

yielded to me, whether this was a prior appropriation or

under the riparian system.

I think it is a little bit of either, which may

be the conclusion that we have all been driven to here,

and that is, both systems assumably have the same end, the

optimum, the allocation or most efficient use, the way the

economists like to put it, or lack of waste, the way Mr.

Fisher likes to put it.

And we are struck by the ingenuity and the

adaptiveness of both systems to work from bases which




would seem to the'observer who just-read the statute or

just had a knedledge of how it worked, would be impossible

systems for people to live under.

That may be the basic end result, listening to

Professor Trelease's and Mr, Huffman's eloquent defenses,

or, advocacies of the prior appropriation system, and

recalling to some extent what I said yesterday, and I think

I fell into the same ;error, it reminds me of something

which Mr. Justice Holmes once said. I wish I could quote

it with the same pithiness that he used, but it went like

this That it wasn't enough for the young man that you

agreed that his lady was charming and pleasant and pretty,

but unless you agreed that she was the most beautiful, the

most wonderful, most desirable creature that walked on the

face of the earth, he would fight you to the death,

And I sometimes get this feeling about the atti-

tudes of the different participants toward the water system

with which we have grown and learned to love, if for

nothing else, and they are like the experts, and like the

tax people who will never forgive the Republicans for this,

for having to relearn the numbers of the code due to the

change in the 1954 Act,. who would fear such chanese.

What I would like to say, since I am catching a

plane, is about the economists': contribution to the problem

of water allocation. I think that follows from what Mr.

__ 1 ~ __


m56 56

Haber was talking about, the master plan, which when you

begin to poke around in this concept, which I think is

the necessary framework for organizing thought, as well as

organizing water, shows a lot of problems.

The inter-state one which we will get to when

you turn over the board, and the problems of how this

agency is going to take care of industrial location or how

it is going to deal with zoning, or it is going to end up

.. as the czar of the entire state's activities, are some of th'

.. other problems, I want to focus on the economists, .inoe

I am getting out of here.

The economists! problem, from the lawyers' point

of view, say, getting them as an expert or advisor to your

master planning commission is to develop certain systems

for you.

The papers-we had developed Ahvoive theoretical

frameworks of great complexity and ingenuity, most of which

I could not, as perhaps was too plain, follow, But the

interesting thing is that the framework did not lead to

the recommendation, I suspect, in both cases, that is, in

one instance you had a framework but with your problem of

riparianism versus appropriation you concluded that the

appropriation system is the better system because it is

the most flexible.

Why is it the most flexible? Not as a result

m57 57

of the graphs or the oharts. o,.of the different mottoes,

but because:of what happens in practice, that is, that

outside the legal system, in a sense, in a world of private

agreement people buy and sell water rights, and this makes

it flexible. Admittedly, we don't.know if this is sOp. We

suspect it is so, but there are-no studies to demonstrate

that it happens more readily or easily in a prior appro-

priation than in a riparian system, or that the costs are


But you wonder how.it follows from the framework.

The same goes for Mr ,Wollmans suggestion. He coms up

with a theoretical framework, but his ultimate proposed

solution is something that even a lawyer would suggest, and

he might even dress it up differently. It does not flow

from the theory, as I see it.

I could not understand, for example, Mr., Harris'

reaction to Mr. Wollmants proposal.. It was a little

puzzling, and partly because perhaps it was presented by

an economist. If you contrast the system which Mr. Harris

is administering with the one which Mr Wollman is pro-

posing, it doesn't seem to me that there is very much

difference between the two.

This field in New Mexico and the way it is

administered shocks me as an American used to private

property rights, doing what you want with the land, owning


m58 58

down to hell-and up to heaven, and 3b forth, but I suspect

'the same needs, .same devices might make. me think Mr.

Wollman's proposals are not as far-fetched o weird as

perhaps was suggested,

But then, again, Mr. Wollman's proposals could

have been dressed up a bit differently Had he put in a

legislative study of what is going to be the priority of

allocation, so that the administrator doesn't have this

unbounded discretion. Had he spelled out some aspects of

judicial review so that we were sure of equal protection,

equal applicability of the law, Had he worked in.some of

these constitutional, legislative and moral aspects to this

economic framework, it would have been a proposal which

would appear here as number three, and I think it was only

due to Professor Beuscher's desire to have the range of

the spectrum that it does.

I think it would have greater merit if it was

attached to these other institutional frameworks.

What this boils down to is an appeal to the

economist--this is an expression of ignorance, but I hope

at any rate no greater than that of the legislators or

the public--how do these mottoes and theories work with

respect to the particular hard problems that we are-dealing

with, say, the one that Professor Beuscher suggested as to

the water and. the farmers, or these other problems of prior





appropriation and riparianism.

Just one last word. I think it is not prior

appropriation versus riparianism. I don't think that is

the issue here at all. The issue, in a sense, is who is

going to get what. It is the farmer who wants to change

it in the East because he came last. If it was the

manufacturer who came late, he would be the one pushing for

prior appropriation in the East. This is something that is

natural and understandable, but something which has to be

worked with and resolved by the administrators.

It comes down, I suspect, to who is going to

wield the power that Mr. Haber suggested, the advantages

and disadvantages of each.

I suppose I have said more than enough.

MR. WANTRUP: I think one point of Mr. Haar's

statement requires a clear-cut reply. The economists are

reproached for not making definite suggestions. That was

not our assignment. My assignment, for once, was clearly

from the beginning to clarify certain concepts. If my

assignment had been to make definite proposals for legis-

lation, I assure Mr. Haar that I would have done so.

MR. HAARt I think that may be a very useful

next paper.

MR. HUFFMAN: With respect to the quotation from

Justice Holmes, I think I said when I spoke a little bit


ago that I was a great believer in the middle-ground

approach, I think I also said that you never found the

answer to many public problems at the extreme; it is

generally by compromise. I say that only because I think

you said we were advocating appropriation doctrine as an

answer to all of these problems. That is not the case,

MR. HAAR: I included myself in that. I think

it creeps in as one of the assumptions.

MR. TRELEASE: I will admit there are other women,

but I still think she is the most beautiful and desirable.

MR. HAAR: It is good to get a statement on the


MR. MARQUISt I think the thing you asked me

first to do was summarize some of the possible alternatives

., which had previously been set out in the law review, of

which two of my associates and I prepared.

Perhaps I should start out with the safe caveat

which was included in that article, namely, that in sug-

gesting them we were not indicating advocacy of any of them

or the thought that any of them would be any definite

answer. We were at the time merely trying to point out

that there were possible middle-ground solutions and that

there was a middle ground that should be explored.

With that, the alternatives specifically were

these: First, and certainly it was not original with us,




I '


it was lifted from the restatement of torts, it was the

thought expressed in that work by its authors, that the

reasonable use, riparian rights doctrine could be carried

considerably further than it has been, namely, that the

riparian right should be considered not positively as a

right to take a reasonable quantity of water, but rather

negatively as a right merely to be free from unreasonable

interference with reasonable use of water by anyone else,

either riparian or non-riparian.

The adoption of that, of course, would assume

non-riparian use of water on somewhat the same basis as use

by riparian owners. Whatever right the riparian possessed

would be freely severable from his riparian land and


I don't know, incidentally, that that would be

any great change from the law that very possibly prevails

in a number of eastern states.

A second thought that was spelled out was that

where a larger quantity of water might be necessary for use

by riparian owners, or where a non-riparian needed and

wanted water for a desirable use and could not otherwise

get it, as a second alternative, that there might be ex-

plored the possibility of extending the power of condemna-

tion to permit that private owner to get the use of the

water which he needed.

m62 62

Of course, one runs up against, as we recognized

immediately, the question in many eastern states: Would

condemnation along that line be for a public purpose? I

suspect, however, that given the right legislative findings

of fact, taking into account a number of precedents, the

precedent, for example, that we have in Tennessee that,

just as an example, permits any landowner who hasn't

reasonable right of access to his land to go ahead into

court and condemn it, I suspect that might be a quite

feasible proposition from a legal standpoint.

Another alternative that we suggested as a pos-

sibility was the adoption of the California system, which,

as I understand it, and I am perfectly willing to be

corrected by those who know it better, preserves riparian

while at the same time giving appropriation rights on a

basis under which the riparian right is basically the

superior right to the extent that the riparian puts water

to beneficial use, but permits permanent appropriation of

water that is permanently surplus to riparian needs, and

permits temporary appropriation of water that is temporarily

surplus to riparian needs.

I want to come back to that California system in

just a few minutes. Then, as a final possibility, we

suggested something that we termed "modified prior appro-

priation." I am not so sure after listening to some of

J ____.________J


this discussion that the use of that word "modified" is

quite correct. Basically, what we suggested was that if

it were thought desirable in the eastern states to go to

an appropriative system, one might consider putting these

limitations on it: Number one, we felt that some of the

difficulties that had crept into the western situation, as

we were able to discern them, simply from looking at the

literature, was largely associated with the inflexible

system of preferences which was written into the law of

many western states, and which putting agriculture first,

made it very difficult to change at a later time from what

might have previously been a higher-ranking use, socially

speaking, to one which had become a lower-ranking use,

to another which was economically more desirable at the

later stage.

In that connection, among other things, we

suggested the possibility of looking at the rule in

Washington which permits the court in any given case to

decide what is socially the use that ought to be regarded

as the higher-ranking use.

We suggested also as another possibility that one

might consider permitting some state agency to look at

different portions of a particular state, and to say that

in this particular area, watershed, what you will, it looks

as though manufacturing is the thing that ought to develop,

m64 64

and we ought to preserve the possibility of its develop-

ment, that over here that looks less likely and maybe

agriculture ought to be preferred,

One of the things that suggested that to us,

incidentally, was an existing law in North Carolina relating

not to the permit system but to pollution, which requires

the pollution control board in that state to look at the

different watersheds in the state on very much that


A second point we made, and I discussed it

somewhat yesterday with Dr. Wantrup, was the possibility

that instead of appropriative rights being given on a

permanent basis, they might well be given on a temporary

basis for a period long enough to permit the appropriator

to amortize his investment, but which would permit at the

end of the time the transfer of the right to somebody else,

if it were then found that a permanent economic and social

point of view of somebody else could make a better use of


Finally, we suggested that if a system of, as

we called it, modified prior appropriation was adopted,

in order to avoid constitutional problems, it might well be

considered desirable to permit some sort of compensation

to the holders of unused riparian rights, in view of the

fact that regardless of what they might get in the future



through appropriation, I think it is very likely that the

immediate result of the change would be to cut down the

value of their land. That might be done either through

direct compensation, as we suggested, from the state,

which then in turn might conceivably make itself whole by

charging appropriators for the right that it would grant

them, or it might be done as in fact Nebraska and Kansas

apparently have done, by giving the riparian owners some

sort of right for damages against the appropriator.

Those, I think, in summary, are what we suggested.

Now, Mr. Chairman, you also indicated to me, I believe,

before the recess, that in addition to outlining these

possible alternatives I might be free to make some general

comments. So, if you will, I will take advantage of that

and indicate some thoughts that have passed through my

mind during the last day or two, and particularly this


In the first place, I agree with the last speaker

to whom I yielded some time, that I think perhaps too much

may well have been made of this proposition of riparian

rights, on the one hand, appropriation, on the other hand,

never the twain shall meet.

I am inclined to think, on the contrary, that

the two may well be moving not toward the same point but

by something in the nature, at least, of a fairly broad

m66 66

middle ground. For example, when Dr. Wantrup and I had

our colloquy yesterday on the proposition of granting

appropriative rights for a limited time rather than per-

manently, if he didn't agree with me he at least didn't

express shock. Later, when I talked to him, and he is

here and can defend himself if I misquote him, on this

system of preferences, he indicated to me that he thought

those might well go out the window.

MR. WANTRUP: In fact, I have suggested that many


MR. MARQUIS: I understand that. This morning

we have heard that users of western water are getting to be

satisfied with delivery contracts rather than with something

that is labeled a definite definitive right.

It may well be, as you suggest, Professor

Trelease, that it is an equal right among a number of

persons in a definite quantum of water. But it seems to me

that it is quite a departure from the first-come, first-

served proposition that those of us who have looked at

prior appropriation from the books have been led to believe

... is a basic tenet of that proposition.

It represents, it seems to me, change. It is

.... in the direction of correlative and equal rights in some-

thing rather than first-come, first-served, prior appro-

priator next, senior appropriator here, and so on,


-- --------- ------- --------------------


Again, I think that when you get to the point,

as both Professor Trelease and Professor Huffman did this

morning, in suggesting that water developed rather than

mere allocation of what water is available, is highly im-

portant. You again get toward something that has proceeded

both in the western and in the eastern sections of the

country, and represents, as Professor Maloney pointed out,

something in which both of us have long been interested.

I would say that if one is to become a proselyte

to the appropriation faith, so to speak, one is adopting

a creed that is undergoing some change and in the direction,

perhaps, of the middle ground that I was talking about.

If that is correct, I think it becomes then a

question for the East: Is it easier to reach that middle

ground by adopting something that is new and foreign to

our institutions, or do you reach it more easily by taking

what we have and what we know and building on it in some-

what the same general direction.

Finally, just one other thought that has run

through my mind, and that is, that whatever legal theories

may be adopted have necessarily considerable limitations.

Let me illustrate that by two examples. Number one is

this California situation that Professor Trelease mentions.

I may say that I have been in a number of these meetings.

I have talked with and listened to individuals from a

-~----~c -------- --- --------------------------,

'Z_______________ ____ ------_ ^ ^ ^ 1 ^ ^


number of prior appropriation states. They very naturally

look with doubt on the question of riparian rights. But it

has been my experience that they look with even more doubt,

if not antipathy, on the system of law that prevails in


I have not, unfortunately, had the privilege of

hearing any lawyer or engineer from California who could

answer some of the questions that that raised for me. As

was pointed out here earlier this morning, I don't know

what kind of a mess California law may be, but I do know,

as we all do, that the population of California is several

times that of any other three or four of the western

states, that in terms not only of population but of economic

wealth, of income and water development, its progress has

been phenomenal, if not the fastest of any state in the


How does one explain it? Well, if the legal rules

do leave much to be desired, they apparently haven't

interfered too greatly with results.

A second point along that same line I think was

made very nicely by Mr, Maddock last night. That was this

question of priority versus "highority."

Regardless of what your laws may be, it seems to

me, after listening to what has been said the last few days,

that prior appropriation, riparian rights, for that matter,

___ ____ _~I__ ___~_~I

m69 69

is not a situation where you simply give a right to a

definite quantum of water and each appropriator gets it

according to a fixed priority. It seems to me that is

somewhat more theoretical than I have previously imagined,

.. I doubt if a water master or a ditch rider can

go out and simply, by the use of slide rule, omniscience,

or what-not, close those head gates in a way which bring

about just those mathematically perfect results. I suspect

there is a good deal of accommodation among the people who

may be concerned.

We are going to have that here in the East

necessarily under whatever system.

Again, just one illustration, and our problem in

this respect may be even more difficult than that in the

West. Take this matter of irrigation, In the West, it is

ditch- or canal-type irrigation. Whether mathematically

or not, your water master, at least presumably, does control

head gates. Here in the East, or at least in the Southeast,

what we have is sprinkler-type irrigation, and you can

visualize situations along a small stream where a large

number of individual farmers simply extend their pipe into

the stream and they can sprinkle to their heart's content

simply by flicking a switch on their pump or, Mr. Nelson

pointed out to me, they can even connect the system up

S with their tractors, and they can do it at nine a.m. or two


.__. ~_ __~_ ~__~ ~_~~1_XI~I__C ~~_1__

m70 70


Assume they are granted definite water rights in

terms of quantity. How do you enforce it? Are you really

going to be able through not a ditch rider, but a pump

primer to control use of that pump or the use of that

tractor and say that this man shall not take any more than

X cubic feet of water or Y acre per feet, whatever the

measure may be, or that this man shall get no water until

the senior appropriator has gotten his first? I have my


I think that actually what you will get under

whatever system of law is a pattern under which, as was

said last night, that people take the water until their use

gets so unreasonable that their neighbors complain and maybe

go into court. I think the situation will be one of

reasonable accommodation whatever the laws may provide.

Those are some random thoughts, Mr. Chairman.

CHAIRMAN BEUSCHER: I have an answer to your

question, I think, Mr. Marquis, to what do you doin order

to make sure that the farmer doesn't pump more than he is

supposed to pump, three times more than he should, is -to

organize a real active Isaac Walton League in the vicinity.

At least, that is the way it works at home.

/ MR. TRELEASE: Or you can borrow from the West,

use the Montana system and just shoot him.

11___1______ 1

m71 71

MR. MARQUIS: We have a tradition, at least in

Tennessee, as I indicated earlier, conceivably that might

lend itself to that,

MR. WANTRUP: I have just one short remark with

regard to the California mess, which has been mentioned

several times: Is it really a paradox there that in terms

of economics the law in California works well, and in terms

of the law, of which I am not a judge, it is a mess? Isn't

it one proof of the point I made yesterday, that the law

in California has adopted the economic needs?

MR. MARQUIS: I think it must have.

CHAIRMAN BEUSCHER: Not necessarily.

MR. WANTRUPt As I tried, in this article to which

you refer, I tried to defend the correlative rights doctrine

in down water, which is generally regarded as a mess, I

understand. I tried to show what at a certain stage of

economic development this legal mess has worked economically

perfectly well. I also tried to say yesterday that the

struggle between riparianism and appropriation has resulted

in California maybe to a legal mess, but to a highly

workable and plastic institutional system.

MR. HABER: I would just like to ride my old

horse again, and that is, that all these general statistics

about progress and development and working are relative

things. In other words, what we don't know about California


m72 is how much better it would have worked under another system

and how much less the cost might have been.

CHAIRMAN BEUSCHERs It is also just possible,

Dave, that sometimes a terribly poor, primitive, crude

kind of legal institution actually forces and induces

economic arrangements that are for the best. We have at

... home the common enemy's rule of surplus water. I can't

prove what I am going to say; I don't suppose anybody can

disprove it. It means the upper owner can ditch so as to

drain off the flood water, as Mr. Thomas would call it,

**.. we call it surface water to confuse things a little, he

can ditch that so long as he doesn't tap a new watershed--

I am going to talk in terms of the fact of an actual case--

and bring the water in the middle of a hard rain storm

down on to his lower neighbor's land with great force so

as to gouge out a ravine seven feet deep, eight feet across,

and so as to soak eight or ten acres of his neighbor's land

12 so they can't be cultivated, It is perfectly all right,

says the court.

In turn, the neighbor below can build a dam or

dike that is engineeringly possible and back up all the

water up on the land of the upper owner. That is according

to the rules of the game. What I can see as a lawyer, who

has had a little practice, is the upper owner going to the

lower owner and saying that he can let that water come down,



and the lower owner saying to the upper owner that he can

build the dam, and that, "We had better get together and

till this water away," which is what happened.

Raleigh Barlowe has something he wanted to add.

MR. BARLOWE: A few minutes ago when Professor

Haar was speaking I noticed he left me out of his classi-

fication of economists that he spoke about. I am not sure

this was an accident or that maybe he talked to some of my

colleagues who are present. But I would like to illustrate

a few of the remarks that have been made here this morning

with the Michigan case.

As some of you know, we have been talking about

the possibility of fitting into one of these in-between

classifications for the last six or seven years. We have

proceeded on the assumption that it would be desirable to

proceed with reasonable action, thinking if we put a

proposal before people for discussion purposes that we

could come out with something that would be reasonable,

would fit the situation, that we would probably end up with

something far better than if we were forced into an

emergency-type action.

So far we haven't made much progress, largely

S because there hasn't been any great controversy in the

S state to force action. I am not too sure I want this to

go in the record, but also because the legislative


committees we have worked with have contained no lawyers,and

while they have recognized that the principles suggested

are desirable, they have continually emphasized that they

didn't dare go in that den of lions and try to advance a

proposal like this with all the constitutional lawyers who

sat in the legislature.

During this period since we have brought forth

what was referred to yesterday as the "Michigan Proposal,"

we have had a little bit of time for thinking and for con-

sideration. We have also had meetings with legislative

groups, and this last year we have had a Governorls water

study committee* I think, as a result of these deliberation

we have shifted ground somewhat. We are still in the

in-between class, but it is a little different than the

proposal that has been mentioned here before.

In our changing, I think we have emphasized two

principal things We have wanted more security in expec-

tations than the present system provides. This doesn't

mean that anything is necessarily wrong with the riparian

doctrine. It simply means the courts have spelled it out

to such a small extent in the state that we don't really

know where we stand on a lot of things.

The second thing that has come up is a number

of people have recognized with the changing situation being

what it is in Michigan, that we are not toe sure we want to

~_ -~1_~-11-----_r_-------____




give anybody a permanent appropriation right to surplus

water. So we have come up with a proposal that tries to

tie these two principles together insofar as possible. I

want to put a side note in here, partly for Mr. Manning's

benefit, because I forgot to mention it yesterday, some of

the reasons why we are doing it. We are very conscious in

Michigan of much suburbanization and increasing urbanization

We know nationally the population increased 18 million

people since the census of 1950. We also know that

according to census figures that if we continue at the

present rate we will have 227 million people in this country

in 1975.

We in Michigan expect to get a little more than

our percentage share of this increase. We have reasonable

people in the state who say that by the year 2000 all

Southern Michigan will be one long continuous suburb from

Detroit to Benton Harbor. This isn't entirely impossible.

We know this means a lot of the land primarily suited for

agriculture today will probably be better suited to a

different purpose in the future.

In land economics, we often like to talk about

the principle of succession in land use at this point.

When we get down to this question of alternatives that Mr.

Haber referred to a little earlier, we realize that the

alternatives that are desirable today, if you are talking


in terms of the most desirable use of the water or the most

desirable use of the land, might be far different than they

might be 20 years from now. We wanted some built-in

flexibility in our proposal that would account for this

situation, yet at the same time realizing that we wanted

the most desirable use, that we might want excess water or

surplus water today used for agriculture, but we would want

to recognize 20 years from now it might be more desirable

to use it for municipal uses, more desirable to allow its

use on lawns or gardens, more desirable to use this excess

water for industrial purposes.

Of course, the increase in population we know will

in terms of recreation call for more water in the state

rather than less.

As we look at this, and knowing a little bit about

the hydrological situation in the state, we know we are

just going to run into a plain water shortage in certain

months of the year. This creates a real problem for us, We

know that before we are through we are going to have to

talk about taking the water out of Lake Michigan and Lake

Huron and using it in the state. We know from past ex-

perience this involves a little bit of controversy with

Canada, So we are going to get into international politics.

We hope that what water is taken out for irriga-

tion won't bother them too much, if we can tie them in with

~_I_ ---i~lp--I1C-----~-~_I


m77 77

some water use for municipal purposes, and taking care of

the waste going back into the lake. That is an unsettled


We also know anything we do is going to create

tremendous administrative problems, I have been more con-

cerned with the administrative problem than with the legal

problem, partly because I grew up in irrigation boots in

the West, and I well remember our water master and the

arguments I had with him. Sometimes I had a way of adjust-

.. ing the local head gate in a way he didn't like. Letts

leave this alone, though.

The Governor's Water Study Committee this last

year has talked rather generally about a proposal. We have

never dignified it by calling it a proposal. In my notes

here is the first time it has been written down. I would

like to outline it here for you, because I think it includes

many of the principles Mr. Marquis has mentioned, those in

Mr. Arens' paper and Mr. Fisher's paper.

We have been thinking in terms of a law which

would start out with a declaration of public interest in the

use of the water of the state. We are going to avoid the

use of the word "ownership." We would like to stress it

is a matter of public interest that the waters of the state

are used in a reasonable and beneficial way. We would go

on and include a number of the issues in the Michigan


proposal, which most of you have copies of. We would like

to recognize existing riparian uses. There has been some

talk of what we should do with the unused riparian water,

but we have never come one way or another as to whether we

should think in terms of compensation. We realize this is

an issue that has to be dealt with. We would like to think

that our surplus waters, that those are surplus above the

minimum flow that is necessary to keep a minimum stream

flow for what we consider desirable riparian uses, and also

the water which is surplus above the amount necessary to

keep a minimum lake level, should be available for diversion

in a lot of cases.

We have kind of decided that we should be careful

about the use of the word "appropriations." We have been

thinking in terms instead of calling it a "straight

appropriation," a "license" or "permit" to use it, instead

of granting this right for all time. As a regular property

right, we would like to think in terms of limiting it for

some specified period of yearse We haven't decided the

number of years, but for discussion purposes, most of us

have been talking in terms of a 20-year period.

Attendant to this is the idea that any user who

comes in and gets a permit would have a right at any time

during his use period, say a 20-year period, if he were

going to enlarge the scale of his operations, if he were



going to put in a larger pump, this could be an industry,

a farmer who is irrigating, he would have a right to go

back to the administrative commission, agency, and ask for

a renewal of his permit for another 20-year period,

So, when he is making major investments, he would

always be able to think in terms of a period that would

be an amortization period which would make it possible for

him to go ahead,

We also think that when anyone asks for a permit

or a renewal the state agency should consider other appli-

cants, and consider the possibility that this water might

be better used in some alternative use. We realize those

alternatives might be much different 20 years from now

than now. We would provide that this water right could be

sold with the permission of the state any time during a

man's period. Which means if industry comes into the area

and it appears it much more desirable that they be using

the water rather than the farmer be using it, the farm

cantt stop progress in this case, and he would be in a

13 position to sell out his use right. If he refused to sell

it, and the preponderance of the facts were that it should

be the other way, the road would be open on this later on.

We have mentioned the district aspect of this

a little bit differently than mentioned here, because we

are thinking of the district primarily as a unit of


operation, because we feel this system might apply much

better to some areas in the state and much earlier than in

some other areas of the state.

CHAIRMAN BEUSCHERs A unit of the operation of

the state agency that would administer the program as a


MR. BARLOWE: Yes. There are two reasons. We

might take the Paw Paw Valley. There may be a strong

argument for doing this here where some of our valleys in

Northern Michigan would have little reason for shifting

into this operation immediately. We recognize any state

agency would have an awful problem if they started something

like this all over the state at once. The state agencies

would establish some priority and how they would move in.

This is a discussion proposal at the moment.

CHAIRMAN BEUSCHER: Our time is rapidly running

out. If you want to move on, we should, it is pretty

evident, it seems to me, that from many of the things that

have been said this morning a good number of people present

feel that under this heading of, "Studies, What Kind," that

we should have in the water use field a kind of institution

* study that we have had over the land tenure field, Mr.

Huffman, in both the West and East, to get down into the

institutional arrangements that are actually being used to

get water to the place where it is being used--the districts



in Florida, how they really operate in this changing

situation where now they are putting water on the land

instead of taking it off.

In my own state we are just about to again look

at the way in which our several state agencies that have

had to do with the issuance of permits where water is to

be pumped out of lakes and out of streams, the way in which

they have been operating, the kind of permits they have

been issuing, the transfers that have been made of those

permits, what is really happening.

I think we can learn much from this that will

help us frame for particular states the kind of legislation

that best fits local institutions. Then when you have cut

the cloth that way, it may be that it looks like the

appropriative man or the riparian man, but it seems to me

you may want to start from the institutions you have and

work up.

In terms of this question about studies, Harold,

would you have anything to contribute? You have made a

study in North Carolina of the statutory law at the state

level. You have made a. study of the appellate cases in

that state. What more should be done in North Carolina,

in your opinion, before any kind of at least long-range

legislation is enacted there?

MR. ELLISt Jack, i would turn this more to

m82 82

another study that we are actually engaged in, also which

is a study in Illinois. To give you a little more specific

answer to that, there in Illinois we have initiated a study

which will cover the laws not necessarily in detail in

which we covered the North Carolina situation, that is,

by way of actually getting out a report; we will have to do

a very exhaustive and thorough study of what is there, so

that we really understand it.

We have a young man hired at Illinois who is

doing the basic work on this. His study will be tied in

wherever this can feasibly be done with a companion study

dealing with the economic problems of irrigation in Illinois

The first move we have made to get out beyond

the library phase of the study, so far as the law is con-

cerned, is to send out letters to county clerks, and so

forth, to get a measure of the kinds of controversies that

actually have come into the court, to see what type of

things have actually arisen at the lower court level. We

have not yet received replies from that. That will be

followed up with personal interviews and actually looking

at the actual case situations to learn what we can out of

what is going on.

Then we will tie this together with a study of

the economics of irrigation to get a closer look at Just

where the farmers are located, the types of situations they


m83 83

have, and what their competing uses are that they are facing

in that area, how some of these differences might be

reconciled within the existing framework of the law, and

move in that general direction.

This is all in Just a beginning stage; the study

of the economics of irrigation is just getting under way.

So, we have a long way to go yet. We are in the process

of formulating the best way to get at some of this infor-

mation and make up the tie-up between the economic factors

and the legal factors as closely as we can.

CHAIRMAN BEUSCHERI This assumes, of course, that

you have adequate physical data about how much water--

MR. ELLIS: That is a distinct problem of any

study in this type, as we are well aware.

Along with this, we are interested to the extent

that we can obtain information, the kinds of contractual

arrangements that farmers in particular have actually been

working out to try to alleviate some of the problems that

they face where there are two or three or half a dozen

actually irrigating from the same stream, or that type


I am not prepared to say yet that some of the

problems cannot be handled fairly satisfactorily in that

way for the immediate future. It is clear that when and

if irrigation gets to the point that there are 20 or 30-or

m84 84

more lined up on a stream in one of these eastern states,

that it is going to be quite difficult to handle the prob-

lems that arise through contractual arrangements. It may

be that this district organization would be a way to get

around some of those problems, the problems of the fellow

who won't cooperate,

But things can be done in that way, and I think

that we are missing the boat if we don't make a study of

just what the possibilities are.

For instance, in Delaware, to cite one case,

where two farmers were lined up on the stream and one

fellow had a second stream that came in at a point on his

land, they worked out this, this was strictly an oral

arrangement, nothing in writing, worked out an arrangement

whereby the lower user would take the water out of the

stream that was coming in during a certain part of the time

so that when the upper user went to use it he used it at

another time, that the upper user would cut out and allow

him to take out of the main stream. They worked out a

seesaw arrangement like that; other rotation arrangements

are possible,

// Of course, it is much easier to do it where a

farmer has some alternative source that he can turn to.

That, in general, is the type of thing that we

are interested in investigating. We have a study initiated



in Louisiana in which we will have an opportunity to

take a much closer look at this irrigation district possi-

bility, irrigation company operations, and so forth.

CHAIRMAN BEUSCHER: Where the area involved is

rural country, where urbanization is popping up all over

the landscape--this includes now a devil of a lot of land

in the United States--where that is the situation, it seems

to me that whatever kind of studies you are making with

respect to water using institutions and legal arrangements,

illegal arrangements and formal arrangements, you ought

to get the professional people at least who are attempting

to plan the use of land in your area on your team. I think

it is perhaps one thing this symposium missed. It seems

to me the land use planner has a very intimate interest in

this problem of water allocation.

I am not talking about what kind of a study; I

am Just talking now about another fellow who ought to be

on the team in making a study. Are there any other com-


MR, HUFFMAN On this question, I agree, because

I have thought for several years that there may be a real

opportunity to apply some of the techniques and ideas and

concepts of land economics to the water problem, as we have

discussed. And with reference to Mr. Haberts remarks

earlier, we accept that in terms of city planning or land



use planning, although we recognize the economist may make

errors and will make errors and will continue to make

errors, it seems to me if we are willing to accept it in

that area, and cities do, apparently, they hire city plan-

ning specialists, we ought to accept somewhat the same

thing in the case of water, because at least the error won't

be any greater, I presume, in projecting the demands for

water, whether it be for domestic consumption, industrial

use, than as in projecting and preserving land sites, and

things of that sort,

One other comment I would like to make with

respect to Mr. Marquis' question or comments If you allo-

cate water and divide it up, how do you enforce it?

In the West, I don't think we ever did eliminate

the enforcement problem, except where in a case the supply

of water was developed to a point where it took care of

everybody. I am not being facetious. In the early days

you had a real enforcement problem, and you still do in

areas of limited supply. With the result that it was

common practice, and still is in some areas, for example,

to have locked head gates in which the water master, when

he makes the adjustment, is the only man with the key.

In earlier stages than that, the water master

carried a gun, because that was the one basis on which he

was on an equal basis. The tendency has been not to solve

__~__ _____II_


m87 87

that problem of enforcement because you are dealing with

human nature. It is not much different than sugar rationing

with coupons, or anything else. People will get it some

place. It is to develop the supply so that you can take

care of everybody. I guess I should have said that about

two-thirds of what the Montana Water Board has developed has

been to develop enough water to take care of everybody.

14 I will say one more thing. I am happy myself to

see that we have ended up, I think, with some indication

that what we are really going to have to find is a middle-

ground approach. I tried to indicate it earlier. That is

the reason I rebutted Professor Haar's reference to Justice

Holmes, that it seemed to put us right back where I was

afraid we had been earlier, the implication that we had to

make a choice between one or the other. I think that is

about the worst mistake we could go out of here with as a

result of this thing, because for the last seven or eight

years I have been involved out there in the same sort of

thing, where people have tried to leave the implication

that the public had only two extremes to choose from in

trying to find administrative units for the Missouri Basin

or the Columbia. One was a duplicate of the TVA, on the

one hand, and nothing on the other. That is a sad sort of

situation to be in.

It is like giving a man a car. of white and black


m88 88

paint and then saying he can only paint black or white. He

can paint ten thousand shades of grey, depending on how he

mixes the paint. I think we have many solutions in this.

I think we will find ourselves coming from different

directions but coming somewhere near the middle ground,

adopting institutional arrangements, other things, from

either side to solve a problem, which, after all, is the

important thing.

MR. MARQUIS: I am glad to have that statement,

with which I am in 100 percent agreement.

MR. FISHER: I think our Chairman this morning

has summed up many of the aspects of the problem. I wonder

if the material he has on the other side of the board are

the answers.

CHAIRMAN BEUSCHERS There are many blank spaces

on the other side. It is pretty clear that we aren't going

to talk about everything I have on the blackboard.

MR. BERGENS I think we could go on until one

o'clock. Lunch will be brought in here. I know some of

you have to leave. If you want to go on, I think we ought

to try to cover as many points as we can.

CHAIRMAN BEUSCHER: I don't have to leave until


MR. BERGENm Maybe we should find out how many

have to leave in the next hour. Could we stay until one



o'clock and then go on and have lunch at the table?


MR. HABER: I would like to mention just a few

more things. They have occurred to me as we have been

going on; I will probably think of more later on. I would

like to get them in the record. I think, first of all,

I would like to reiterate one study that Mr. Ellis men-

tioned, and others have mentioned, broadening it out a

little, that we should look into the actual district opera-

tions and find out more than simply there is a district and

what the enabling statutes are, find out on what basis the

districts do distribute the water, what kind of contracts

they make, what rates they charge, what is the basis for

their determinations and how flexible they are, and so on.

I think another thing that has come up here, and

will at least be an important factor for people who want

to consider whether they should go ahead and make any

radical changes, is this question: How come that under

this terrible law we have been getting.along for so long

and there is no litigation? I think we should look into

the question as to how water is actually allocated in

the eastern states. What are the actual practices, not only

by farmers, as Mr. Ellis has indicated he would study, but

by all other water users. What is the cost of their

getting water, and when has there actually'been a


discouragement of development because of the cost and cause

of legal obstacles.

I know that is a big order, but I think some of

us would like to find that out. It is a very interesting

study that could be made.

MR. MARQUIS: Would you add to that, just to

satisfy my curiosity, California, and how do they do it?

MR. HABER: I don't think you will get any

answer out of California.

The other point I would like to make about studies

is the fact that I indicated before, the possibility of

a water allocation plan, how far can you take it into the

future, into what detail, and on what basis would you do

the planning, what unit of planning?

I think Mr. Wollman's study is moving in that

direction, the one he is planning in New Mexico; and I think

perhaps as it goes along we can clarify to what extent the

kinds of conclusions such a study would meet would be useful

to an administrator who had to really allocate water,

I think there should be a constant back and forth

consultation between Mr. Wollman, or anybody else who

understands this kind of study, with people who have

problems of water allocation, to see whether the kind of

conclusions that he is going to reach would be useful to

such people if they ever had to administer such a plan.



I would suggest here, from the point of view of

future legislation in those states where there isn't any

immediate emergency but there they anticipate future trouble

that one of the things they might do, which has to do with

a study idea, because it is a study of legislation, instead

of just instructing study economists to study the situation,

which has been going on as far as I know up to now, that

they have a law which creates a water planning commission,

the way the city planning commissions were frequently

created, without any power whatsoever except to make

studies, and to actually develop a water plan.

I know there are water planning commissions in

some states. But mostly the plans have dealt with pure

development plans, where they have not tried to refine them

to the point of particular allocations or where the parti-

cular allocations pattern has simply been assumed, not a

matter of change and specific change.

I think getting into that kind of agency, with

that kind of authorization, might be a very good alternative

to just general studies. From what they can come up with

I think we will have a better idea as to the specific kind

of law and a specific kind of material that might be put

into such a commission later on that we might want.

Just other little legal points which interest

me, which I think will come up under any kind of law that


you are likely to get in the future: What is this question

of private condemnation? I think you should have some

legal examination as to how far you can go with private

condemnations, and that we have the material ready as a

constitutional question.

I think there is a lot of case law on this, and

the analogizing of that case law might be a very interesting

thing to do, and to just have it ready. It might also give

us a clue as to how we should do it.

I think, for example, it might be much more

difficult to give private individuals or corporations

condemnation power but much less.difficult to give a public

corporation in a particular area for a particular function

condemnation power, with a power to transfer water by sale

to private individuals.

CHAIRMAN BEUSCHERI That would be water develop-

ment rather than urban development.

MR. HABERt One further thing that follows from

what I have said earlier would be that we might explore mort

fully, so we are ready, because I think many people anti-

cipate this problem coming up: To what extent is this

riparian land limitation really an important limitation

in the East so it would be held to give riparians a vested

right against non-riparian users?

I think many of the proposals here have

_I__ I

m93 contemplated non-riparian users, and sometimes without

compensation. I think we should know something more about

it and have something ready.

MR. MARQUIS: I would like to make another sug-

gestion, or request. I dontt know when the transcript of

this proceeding will be ready. Since I assume it will be

some time, I, for one, would like and very much appreciate

having a list of the questions that Professor Haber has

just covered, separately, and before that transcript is


CHAIRMAN BEUSCHER: That part might be the first

part transcribed. I would like to see the whole of it.

MR. BERGEN: I wanted to ask today Just what your

suggestions are for getting this out. What we could do, I

15 suppose, is send out the verbatim transcript, Of course,

there would be a lot of incoherencies here and there. It

wouldn't be as well presented as it would be when Dave

Haber finished editing these remarks.

We don't have any set idea at the moment as to

how to carry out the editing. We would appreciate sugges-

tions on that, too. But, first, would it be valuable to

send out just the verbatim transcript and try to get that

out as soon as possible; and secondly, what kind of editors

handling or relating of the subjects or topical tying

together would you suggest? I don't know whether we want



to discuss that right now. I think we need suggestions

from all.

MR. HABER: I think it should be a private

comment that you are making.

MR. BERGEN: We would appreciate your suggestions

on that. I will write you all a letter when we get back

home and ask about that. Also, I want to stress very

greatly that we need your written comments as well, ideas

that occurred to you on the way home, or things that you

have had in mind that you haven't said yet, on the papers or

on the discussion. We solicit those comments from you in

a most hearty way. I think those comments will help this

whole record of proceedings very much, indeed.

CHAIRMAN BEUSCHERt I have just one other sug-

gestion about the transcript, rather, my suggestion is about

the reporter. I think he should receive a Purple Heart.

I don't know whether you were aware of this

yesterday or not--I know I wasn't until I talked with him

this morning--he did three days' work in one. He tells

me that a normal days' work for a reporter is three hours

of reporting. Three times three times three is three days.

MR. HARRIS: In talking about studies, at least

I would like to make a prognosis of what sort of studies

will have to be made in the West. I would like to feel,

and I do feel that the studies of the doctrine of


appropriation will not be modification of the appropriation

but merely the normal growth of the doctrine.

Certainly more planning in water allocation will

be necessary. For instance, in New Mexico, we have an

economic development commission which works closely with

the administrator, and right now there is a good deal of

cooperation on how industry could be brought in, where it

could be brought in, and where water could be allocatted

to it,

There has been an assumption, I think, that

probably in many parts of the West there is now competition

between agriculture and industry. It appears to me, based

on my experience, that that actually is not a very large

conflict. In New Mexico, and I am sure it is true in

Wyoming, possibly less so in Colorado, water is not the

main factor for lack of industrialization. If it should

appear, I think, that with the tremendous concern on the

part of the public of unindustrialized states like New

Mexico, that the public policy will change so that there wil

be some sort of preferential right for industry, if they

cannot afford to buy the water on the market price, it may

well be there will have to be some sort of preferential

system, with possibly a private right of eminent domain.

In our next legislature there will be proposals

to extend the powers of municipalities, because we do have


cases now where there is competition between municipalities

and irrigation We have two cases of which I am aware of

competition between industry and irrigation, and we are

talking about a theoretical proposition, and we feel there

should be some change in our water allocation law to accom-

modate greater uses of water.

Certainly the whole policy of the law is geared

to the proposition that the water should be subject to the

highest possible use. We realize that may change, that

there may be higher uses as far as the public is concerned

with water. I am not now aware that there are higher uses

that could use this water that is now being used on the

cotton farm.

The big problem that we have in the West is how

to better utilize the available water we now have, not from

an economic point of view, but from a physical point of

view, because our main competition now for water is competi-

tion not from different uses but from the same use. So,

the physical proposition of how we can relate our law in

order to prevent the great waste, and I am talking about

the physical--I don't like to get into the definition of

waste, but the fact that actually we have a certain amount

of water that has to be allocated when only a small fraction:

of it can be used because of evaporation, ditch losses and

channel losses, and actually the trend of our law will be


possibly a relocation of uses with adequate compensation.

Right now it would appear that the, and in the

foreseeable future, studies will be in the nature of

helpful remedies to prevent physical waste, and it may be

some time before we will have competition for water, not

only in New Mexico but in other areas of the state, competi-

tion, for instance, between industry and agriculture.

New Mexico, and I am sure other western states,

has worked up plans and programs for bringing this into

effect. Some of them have been somewhat successful, at

least in New Mexico. We haven't been eminently successful

in trying to get the industries in, and therefore we dontt

have now or within the foreseeable future a proposition

where it will be necessary to make such a change in our

law to allow this higher use, if it is a higher use.

For that reason I doubt that any radical change

will be practical because we don't have a choice of the

use of water. The main problem is a choice of place of

use and whether we should change our law to implement the

fairly detailed statutes against prevention of waste, for

instance. That would at least be my prognosis of what will

happen in the field of appropriation; and certainly possibly

we will have more changes and proposals in the West, because

we have greater problems than we will have in the East. Eve

though we may have more legislation in the East, from a

m98 98

practical point of view we will probably have to have more

actual cases and changes in the West, and probably more

changes or more growth in the law of water in the West.

MR. STEELE: It seems to me we have been missing

one angle here in the discussion of, particularly, the

eastern states, that is, we have a trend now toward water

management that I think has _one much beyond what is

implied in a lot of the discussion.

We have a Federal Water Shed and Flood Prevention

Act which puts the Federal Government in the business of

giving grants in aid to local sponsoring organizations for

developing a water management plan for the whole water shed.

The Corps of Engineers have been in this water management

business in major streams for years and years. Now we are

setting up a comparable water management scheme for the

lands of watersheds and for the smaller tributaries, and

so on, before it gets into these major streams.

These acts are not limited to preventing damages

from water. They are very broad. They provide for putting

water to all sorts of uses, including municipal water.

We in the past in the East, I think, have dealt

with the wet side of the rainfall cycle. Generally, in

a lot of the East there is enough rainfall, but the distri-

bution is such that maybe it is about right 10 percent of

..* the time, too wet 45 percent of the time and too dry 45

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