Interbasin Transfer by Milton Heath, Jr. and William Walker

Material Information

Interbasin Transfer by Milton Heath, Jr. and William Walker


Subjects / Keywords:
Groundwater ( jstor )
Statutory law ( jstor )
Rivers ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


Jake Varn Collection - Interbasin Transfer by Milton Heath, Jr. and William Walker (JDV Box 43)
General Note:
Box 18, Folder 1 ( Water Task Force - 1983 ), Item 33
Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.

Record Information

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


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Milton S. Heath, Jr.
William R. Walker

Interbasin transfers and other water
diversions offer an important alternative
to meeting water supply needs of water-
short areas, and they have a long and
familiar history in the Southeast. These
range from numerous small-scale diversions
associated with public water supply and
waste disposal to such major diversions as
the Tennessee-Tombigbee Waterway.

There are important legal and politi-
cal questions concerning interbasin trans-
fer at both the intrastate and interstate
levels. These have their roots in eastern
riparian water law and the natural reti-
cence of donor basins to enter into long-
term arrangements for water export with
its possible adverse effects on their own
economies, social welfare, and environ-
mental quality.

In view of the natural animus against
outside intrusions on an area's water re-
sources, it is not surprising that legal
systems embody some constraints against
diversion generally and against interbasin
transfer particularly.

An anti-diversion factor is embedded
in the basic common law riparian doc-
trine. It makes no discernible distinc-
tion between the legal effects of an inter-
basin transfer and a transwatershed diver-
sion within a single river basin. Older
cases generally hold that one may not
materially divert water in such a way as
to cause unreasonable injury to the ripar-
ian owner. This is sometimes referred to
as the "material injury test."

The type of legal remedy available
against a diverter may be as important as
the question of whether a particular diver-
sion is legal or illegal. A number of
older cases indicate that only damages, and
not injunctive relief, are likely to be
available against diversion for public wa-
ter supply purposes. Although municipal

water supply may not ordinarily be con-
sidered a valid riparian use of a streak
where material diversions are involved,
the courts have found ways to protect i
jured riparian owners' rights without u
duly hampering such projects.

State authority to legislate in th,
field of water resources arises out of
state's general sovereignty reserved in
the Tenth Amendment of the Federal Cons
tution. This authority is broad enough
allow the state to legislate with respe
to the transfer of water between basins
at least 17 states have done so under tl
so-called "police powers." This power
limited by Constitutional provisions of
other states such as those defining wat(

The most common type of statute is
ciprocal in form. For example, an Idah(
statute provides:

no permit to appropriate waters
of the State of Idaho shall be
granted unless the sister state,
to which it is desired to divert
such water, shall have an act in
legislation generally similar in
purport to the provisions of this
chapter, whereby waters may be
appropriated within such sister
state for use within the State of

Only two cases have reached the U.
Supreme Court regarding state statutes
which constrain the movement of water ac
the state borders. In a 1908 case, the
Court upheld a New Jersey statute which
hibited the transport of water out of th
state. This appeared to be the law of t
land until 1966 when the U. S. Supreme
Court per curiam opinion affirmed a lowe
federal court decision which invalidated
a Texas statute prohibiting the withdraw
of groundwater from Texas and transport

it outside the state. The two cases
reached different conclusions; yet, there
is uncertainty whether the U. S. Supreme
Court in 1966 specifically overrules the
earlier case.

The question of interbasin transfer is
reported to be a significant problem in all
southeastern states except Mississippi and
Florida. These two states explicitly
authorized water diversion in their water
allocation statutes. The 1972 Florida Wa-
ter Resources Act empowers water management
districts to authorize diversions once per-
mitting authority has been given. Three of
the state's five districts now have such

authority. In Mississippi, which has adopted
the prior appropriation doctrine, the sur-
face water permit system enables the State
Board of Water Commissioners to authorize an
appropriator to divert water in amounts
above the Board's established average mini-
mum flow. In the remaining states, inter-
basin transfer is clearly inconsistent with
the riparian doctrine. Yet, the courts and
state legislatures have given varying de-
grees of support to the practice. There is
considerable disparity between common law
and practice. Georgia is the only state of
this group with a statewide water allocation
system. This apparently contemplates the
possibility that permits may be issued for

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nterbasin transfer by providing that com-
eting applications not involving inter-
asin transfer be granted a preference and
requiring public notification and hearing
opportunities for all permits authorizing
nterbasin transfer.

North Carolina's capacity use area law
light conceivably be used as a vehicle for
authorizingg diversions under permit, but
he State's Attorney General has advised
.hat the Act probably would not sanction any
:nterbasin transfers now prohibited by law.
4hile South Carolina has enacted a series
)f local or special acts giving legislative
actionn to designated individual diversions
For specific purposes, the efficacy of this
approach has not been tested in the courts.
rhe situation is similar in Virginia and
Fennessee. The ambiguity and uncertainty
surrounding the legality of interbasin
transfer must be resolved if investments
ire to be protected and water resource de-
velopment is to follow a predictable course.

At the federal level, Congress has the
constitutional authority to regulate inter-
state commerce, and the courts have inter-
preted this power to include the regulation
of navigable rivers, including the waters
of interstate rivers. Even with this liberal
interpretation of the Constitution, con-
siderable question has arisen in the past
as to whether Congress did, in fact, have
the power to apportion water among the
states. Prior to 1963, many legal authori-
ties thought that the only methods avail-
able for apportioning waters of interstate
navigable rivers were through interstate
agreements or by litigation in the U. S.
Supreme Court. A 1963 Court decision, how-
ever, held that Congress did have this ap-
portionment power. This power probably ex-
tends to non-navigable rivers since deci-
sions have held that Congress can regulate
non-navigable tributaries when they affect
the navigable portions of a stream.

At present there is no distinct fed-
eral policy statement dealing specifically
with interbasin transfer, and various
pieces of federal legislation have both
encouraged and prohibited the study of in-
terbasin transfer as a management concept.

Even when there is a sound legal basis
for interbasin transfer, an equally impor-
tant element of consideration is the politi-
cal palatability of such an action. One of
the significant political considerations in
making interbasin transfer a viable manage-
ment alternative is the extent to which the
area of origin (the exporters) is protected
or is provided equitable treatment.

Some observers have suggested that prob-
lems concerning legal protection for the area
of origin could be obviated if a market-
exchange approach to interbasin transfer were
used. Water--because of its relative abun-
dance, its particular physical characteris-
tics, and the unique way in which the law has
developed around it--has been allocated out-
side the typical market mechanism. Users
usually pay the cost of storing, transporting,
and purifying water; but they rarely pay for
the water itself. There is growing pressure
to incorporate the value of the water itself.
in the procedure for allocating this resource
among competing uses.

General guidelines covering interbasin
transfer that might be considered by south-
eastern states are:

1. Only surplus waters be subject to

2. In determining surplus water, re-
lated needs of the state of origin
should be considered.

3. All present and future water re-
S quirements of area of origin should
have priority in perpetuity.

4. The cost of water in area of origin
should never be greater because of
the diversion.

5. Area of origin must be better off
with project than without.

There are five principal avenues for re-
solving interstate diversion controversies.
These are federal legislation, an original
action in the Supreme Court between two or
more states, litigation between citizens of
two or more states, agreement between two

or more states without formal compact, and
an interstate compact.

Congress has the power either to pro-
hibit or require interstate, interbasin
transfer of water. The National Water Com-
mission concluded in its 1973 report to the
Congress and the President that proposed
interbasin transfers should be planned and
evaluated in accordance with three economic
criteria. First, a proposed project
should be the least-cost way of securing a
given supply of water. Second, the bene-
fits generated by the transfer in the re-
ceiving area should exceed the full costs
of transfer plus the net benefits which
that same water would have generated in
the area of origin. And third, the net
productivity of the project should be com-
pared to that of alternative investment
opportunities. The Commission also recom-
mended that affected states should seek to
reach agreement among themselves and with
the federal government by federal-interstate
compact prior-to submitting an interstate,
interbasin transfer proposal to Congress.
National policy, it said, should require
direct beneficiaries to pay the full reim-
bursable costs of an interstate, interbasin
transfer project, including compensation
to the area of origin for the present
worth of net benefits foregone as a result
of the export of water.

In the absence of specific federal
legislation, interstate agreement or com-
pact, questions related to interstate,
interbasin transfer can only be resolved
through an original action in the Supreme
Court. Here, the Court has followed the
doctrine of equitable apportionment on a
case-by-case basis. This attempts to ap-
portion the flow of an interstate stream
between the states in controversy on a fa
and equitable basis. Another possibility:
is application of the choice of law prin-
ciple under the riparian doctrine to re-
solve a dispute between downstream riparir
owners in one state and an upstream di-
verter in another state.

The compact has become the favored
method of dealing with interstate water
problems. As a means of resolving inter-
state disputes, it has obvious advantages
over adversary proceedings in the courts.
It tends to focus upon elements of harmony
and mutuality instead of divisive factors
and provides a framework for a dynamic an(
on-going approach to interstate problems.
There are no current interstate compacts i
the Southeast dealing with diversion and a
location of waters, but this approach of-
fers a promising route to settlement of
present and future interstate disputes.