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OCR for page 70
Climatic Change
anc} Water Law
4
INTRODUCTION
FRANK J. TRELEASE
University of Wyoming College of Law
Water law could be defined as the foal statement of
man's reaction to the aqueous element of his environ-
ment. This rather unusual definition would be especially
appropriate for present purposes because the view from
this angle brings out a not always obvious constraint: man
must shape his law to the environment as he perceives it.
If his picture of the physical universe is false, he is not
likely to get good results from a law based on the miscon-
ception. A century ago, when judges thought that
groundwaters were "vagrant, meandering drops" moving
in "unknown and unknowable courses," according to
"secret, changeable and uncontrollable forces," they de-
veloped rules of law that would not be suitable for a
modern hydrogeologist trying to manage withdrawals
from a large groundwater basin with the help of a data
bank and a computer model. But, of course, the modern
administrator does not use the century-old law based on
ignorance. The legislature has replaced it with a set of
flexible controls that enable him to manage the water in
accordance with the latest available scientific informa-
70
tion. The law, like other human institutions, has grown
and changed in response to increases in man's knowl-
edge. While one function of law is to give stability to
institutions and predictability to the results of action,
often the strength of the law will lie not in immutability
but in capacity for change and flexibility in the face of
new forces.
This proposition has special significance for this paper.
Today's water laws are based on certain implicit assump-
tions about climate and water occurrence derived from
observations of actual events. Our plans for water uses
and projects are made in the light of predictions based on
these observations. Yet the scientists on this panel now
question those assumptions and predictions. Climate has
changed in the past, and the climate we enjoy today could
be replaced with a quite different one tomorrow. We plan
our developments on notions of "normal" precipitation
and "predictable" drought, but the data are sketchy, and
statistical theory seems to indicate that our premises are
shaky. We could come up against a drought that lasts
longer or is more intense than any we have known; we
could find that it is a "permanent" drought, a climatic
OCR for page 71
Climatic Change and Water Law
change that represents a new normal and promises to
persist indefinitely.* Legal questions inevitably arise:
how will our water law work under such unforeseen
conditions, and will we need to change it? One answer
seems obvious. If the past can be shown to be an uncer-
tain guide to the future, we would be wise to plan for the
unpredictable. Law is, of course, a planning tool in itself
(it encourages actions most of us deem desirable and
discourages those deemed harmful), and the most valu-
able consequence of a new realization of uncertainty
might be that we would build into the law mechanisms
for change and give our rights and institutions a flexibility
designed to minimize dislocations when change in cli-
mate occurs.
We face one quite predictable change wholly unrelated
to climate. With population growth, increased indus-
trialization, and greater affluence, more water is going to
be needed in the future than is used at present. This will
create a "water shortage" just as much as would a
drought, because shortage is a function of both supply and
demand. An increased demand for a stable supply will
produce much the same pressures as will a decreased
supply. Since the unpredictable changes that are of pres-
ent concern will produce (or aggravate) the same result
as the predictable change, we may find hints on how to
handle the unpredictable in the way in which we attack
the predictable.
When the demand for anything exceeds the supply, we
have a common type of problem. Something has to give.
We can attack the problem from either end. We can cure a
water shortage by increasing the supply (at the time and
place of demand) by building a dam and storing water
during good times so it will be present during bad times,
by importing water from some distant place where the
supply exceeds the local demand, or by seeking a new
source such as groundwater. Or we can reduce the de-
mand by restricting the number of claimants (for instance,
to riparian landowners), by prohibiting certain uses, by
limiting quantities used, by increasing the price of water
beyond the ability of some users to pay, or by buying out
some existing user. For purposes of this paper, we will
call the first type of adjustment the "engineering solu-
tion," the second an "economic solution," although obvi-
ously the choice to build or buy depends upon economic
considerations.
This process is what law is all about. Water law is a part
of resources law, a part of all law, and while it may be
complex, it is not necessarily mysterious. The object of all
law was stated by Dean Roscoe Pound of the Harvard
Law Schools:
What we are seeking to do and must do in a civilized society is to
adjust relations and order conduct in a world in which the goods
*Most water law deals with allocation and management of a
scarce resource. Although unpredictability could mean more
water than expected and climate could change for the better,
changes in this direction would create few legal problems worth
discussing.
71
of existence, the scope of free activity and the objects on which to
exert free activity are limited, and the demands on those goods
and those objects are infinite. To order the activities of men in
their endeavor to satisfy their demands so as to enable satisfac-
tion of the whole scheme of demands with the least friction and
waste has . . . been what lawmakers and tribunals and jurists
have been striving for.
This of course is the economist's principle of efficiency,
Jeremy Bentham's golden mean of the greatest good for
the greatest number, and the general desire of all men to
derive the maximum benefit and satisfaction from their
activities and their environment. The water laws that we
hope will help us to reach these goals take many forms.
Much water law deals with "water rights," the identifica-
tion and regulation of claims to private use. Much of it is
institutional—the powers and forms of governments,
agencies, and organizations that control and develop
water resources. Much of what we now call environmen-
tal law is a part of water law or is applicable to water-
related activities.
Water rights offer the easiest place to start. These are
property rights, and their existence and specificity are a
reflection of their place in the economic evolutionary
scale. If a resource is so plentiful that it is not affected by
man's actions toward it, we regard it as a "free good," a
common pool in which all may participate. When claims
upon it increase to the point that one person's use harms
the other's or threatens the existence of the pool, or when
shares in the pool become too small to be useful to
anyone, man needs and enacts in one form or another
laws that restrict the number of participants or that control
or regulate their activity or that abandon commonality and
carve up the resource into individual, identifiable, en-
forceable, and transferable property units.
WATER RIGHTS
The orthodox classification of American water law starts
with a division into the eastern doctrine of riparian rights
and the western law of prior appropriation. We will take
up the latter first, since appropriative rights were de-
signed for a water-short area where there is not enough
for all and are therefore much more structured and pre-
cise than the riparian rights of the eastern humid areas,
where the assumption has been that there is plenty of
water, at least for the owners of the stream banks who can
claim rights to their use.
PRIOR APPROPRIATION
The law of prior appropriation had crude beginnings in
the California gold rush. Thousands of forty-niners
crowded the diggings at the mouths of the Sierra canyons
and staked "placer claims" on the alluvial benches and
fans. They staked similar claims to the water needed to
wash the gold from the gravel. Since there was neither
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72
gold nor water enough for everyone, both were put on a
"first come, first served" basis. Claim jumping was dis-
couraged by Colt and Winchester. When the Great
American Desert was found to be habitable, the first
settler in a valley took first choice of the land and enough
water to irrigate it, the second comer had to make do out
of what was left. These self-made laws were recognized
by courts and formalized by legislatures, and today prior
appropriation is a quite civilized system of state grants of
property rights, enforced and regulated by administrative
agencies with substantial offices, rooms full of records,
and squads of men in the field.
One of the most important features of modern appropri-
ation law is the permit system. Any person desiring to
start a new water use must get a permit from the state. The
permit may be denied if there is no unappropriated water
in the source and if the new right, if granted, would
conflict with existing rights. The permit may also be
denied if the proposed use would not be "in the public
interest." Using this power, water officials have chosen
the better of two competing projects: they have denied
permits for projects that do not comport with state water
plans, and they have placed conditions and limits on
permits in order to prevent serious environmental harm.
An appropriation is a definite and identifiable piece of
property. Its boundaries are marked by the quantity that
may be diverted from the source, the place the diversion
may be made, the use that may be made, and the date that
tells when the right may be used. The quantity of water is
expressed in terms of cubic feet per second, the rate at
which water may be diverted from the source,2 unless the
appropriation is one for storage, in which case the water
allowed is expressed in total quantity in acre-feet.3 An
appropriation need not be used on riparian land or even
in the valley where the water originates.4 Most are for
irrigation, but every type of beneficial use of water may
have an appropriation to serve it: municipal use, manufac-
turing, production of hydroelectric or steam power, min-
ing, ore processing, recreation- beneficial use is not a
closed category.5 This property can be sold, the use may
be changed, or the place of use may be changed, provided
that proper formalities are observed and approval is ob-
tained.6
The rule of priority operates even in a normal year, not
only in time of shortage. On an unregulated stream (one
without storage dams) from which many irrigators draw
water, all may open their ditches in the spring as the
mountain snowpacks melt and the stream is high. As the
flow decreases during the dry summer, the diversion
works are shut off in inverse order of priority. The last
ditch is first closed; the first need never be. The entire
burden of the lessened flow falls on the junior appropri-
ator. He loses all his water; the senior, none. Some have
called this a harsh rule, but it should be remembered that
the low flow is insufficient for all, and that equal shares
for everybody would be sufficient for none. The rule of
priority does guarantee a firm supply to all for whom the
source is sufficient, and the senior irrigators can build a
FRANK J. TRELEASE
stable agriculture unmatched in humid climes. The junior
appropriator is not unlike the farmer in a semihumid area
who must take his chances on rain. If he can only count on
spring flood water, he will grow one crop of wild hay and
will not plant a late maturing crop like sugar beets. The
senior may grow an orchard or a vineyard, the junior will
plant corn, since he may gamble on the loss of an annual
crop but not of a permanent investment.
Since the low flow will accommodate so few users,
storage is desirable to detain the spring flood for release
in the late summer. The rule of priority also determines
who will pay for the dam it is the junior appropriator
who will get the benefit from it. In return for his invest-
ment, he will often have a better right than many seniors,
since his stored water will carry him late into the year
when the base flow becomes insufficient for all but a few.
For this reason, seniors will often join in a dam project in
order to receive supplemental water to firm up their late
season supply.
Actually, there is a good deal of sharing among western
water users. On many streams the latest projects are often
the largest. The early small diversions were made with
individual effort or small group investments, and when
storage became a necessity, economies of scale called for
large dams and long canals, which required government
capital, often government subsidy. The large project usu-
ally has a single priority for all who receive its water, so if
there is a short supply, all will share equally, although
operating plans or contractual arrangements may provide
that municipal or industrial water receives a priority over
irrigation, and irrigation over power. A noteworthy fea-
ture of prior appropriation is that if storage can be pro-
vided not only to save the spring floods for use later that
year but also to save the surplus from good years for use in
the bad years, the physical effect of priority disappears.
There are no junior appropriators, and everyone has a
firm right to a firm supply—a state of equilibrium reached
on many western rivers where the Bureau of Reclamation
has built sufficient dams.
As demands increase and new demands arise, they are
accommodated within the system. If there is unappropri-
ated water available during the period it is needed, the
new user is for all practical purposes a senior appro-
priator. If the supply may or may not be available but the
risk seems worth the candle, he simply becomes another
junior. If a year-round supply is needed, as for a factory or
industrial plant, storage may be provided. But when all
the supply is in use, when all the dam sites are used, or
the costs of dams become too high, a new user must
purchase the water right of a senior appropriator or of a
junior with storage. He can do this, or course, if his new
use will have a higher productive value than the existing
use. In practice, this means that cities and industrial
users, which can afford to pay more for water than can
most farmers, buy out the water rights of agricultural
users.
Applying the rule of priority to the physical results of
drought or climatic change may have some unexpected
OCR for page 73
Climatic Change and Water Law
effects. It is not correct to think that drought will simply
fall upon the most junior appropriators and wipe them
out. In the long run, of course, the juniors will be those
squeezed out, but many holders of senior and inter-
mediate priorities may be affected. It will depend in part
on the nature of the change, whether it takes the form of
an extraordinarily "subnormal" water year, an "unexpect-
edly long" series of low water years, or a ~~permanent~-
change in climate that reduces the long-term yield to
some new norm. In most subnormal years, the high water
begins to drop at an earlier date than usual, and as the
flow subsides each junior appropriator will "go out of
priority" and must close his intake some indeterminate
number of days earlier than he would have if the year had
been within the "normal" range. On an unregulated
stream, the odds will be changed on all the bets. The
original marginal junior rights become untenable and
forfeit, the moderately secure rights are now risky, and
the relatively certain are smaller in number. If the sub-
normality consists of unusually low base flows, the
seniors who depend on late summer flows may get hurt
the worst. If the drought flattens out the peaks and there
is less high water than expected, then junior storage
projects bear the brunt. Where large-scale storage has
been built to equate the supply, the planners had in mind
some combination of bad years to be hurdled. If that
"design drought" were never exceeded, every right
would be as good as any other; but if the dams are finally
run dry, a substantial block of shares all of those that
depend on the junior project will fail together.
Variations in the pattern of multiyear drought will also
change the incidence of hardship. The North Platte River,
to take an example, is a fully regulated stream on which
the annual and perennial fluctuations have been ironed
out by two large projects with different priorities. The
earliest, Pathfinder Dam, has low storage in proportion to
the land it serves, while the more recent project, Seminoe
Dam, has large storage but a late priority. A short-term
drought with several years of very low flows would dry up
Pathfinder but might be well within the carryover capac-
ity of Seminoe, while a long sequence of mediocre years
would hardly affect Pathfinder but would ruin the
Seminoe project.7
The law of prior appropriation already has some provi-
sions for flexibility that will enable the water users to
cope with these rather assorted effects of long-term
drought or climate change. Some make economic solu-
tions possible. Even if self-interest does not keep fools
from rushing in, the permit system enables state water
officials to deny applications for permits if there is no
unappropriated water available and thus limit the number
of claims or prevent more from arising. To the extent that
the junior appropriations serve marginal enterprises such
as farms producing low-value crops, the simple operation
of priority will result in the cessation of those water uses
that society can best afford to lose. But there is nothing in
the priority system that prevents early uses from being
the less valuable or that ensures that the last are the least
73
valuable. An intermediate right now made more risky
may support an investment for which the new magnitude
of risk may be intolerable. And, of course, it is quite
possible that in a water-scarce area all water is put to
quite valuable uses.
In these cases, the transferability of the appropriative
right will provide the adjustment mechanism. Juniors
with valuable uses will purchase senior rights. The holder
of a shaky right may buy a storage right. The partici-
pant in a project whose reduced share is insufficient for
his needs may buy another share to add to it. It must be
noted, however, that there are some restrictions on these
processes. Some states place limits on transfers, all sub-
ject them to the rule that the transfer and the new opera-
tions under the changed water right must not injure other
appropriators, and all must be approved by state water
officials in what often turn out to be costly and long
drawn-out proceedings.
If the values that could be destroyed by drought are
high enough to justify the costs of new works, and if those
works are less expensive than the economic solutions,
then prior appropriation will also be found quite well
suited to engineering solutions to drought. The problems
occur when there is not enough water in a particular place
at a specific time, and moving water about in time and
space is the normal job of prior appropriation. If excess
storage capacity were desired as a preventive measure so
that when the water was needed it would be available,
the law allows high flows to be transformed into carryover
storage, although the water officials may have to be con-
vinced that the holdover is reasonable and the danger
real.8 If new storage is needed as a rescue measure, the
law's normal procedures are available. If a transdivide
diversion is needed to bring water from a water-rich to a
water-short area, in most states there are no restrictions on
the necessary interbasin transportation.
EASTERN WATER RIGHTS
Riparian rights used to be the principal basis of water use
in the eastern states, but this is no longer true. Today,
riparian uses are overshadowed by the large abstractions
of cities and other public suppliers with quite different
rights, and the common law is overlaid or superseded by
many regulatory statutes. It still has its importance, al-
though often only as the background against which the
new laws operate.
The typical statement of the basic riparian law is that
every landowner has a right to make a reasonable use of a
stream or lake that flows through or borders on his land
but that this right is qualified by We equal rights of other
riparians to make a similar use.9 This vague generality is
frequently stated by the judges but really tells us very
little. When analyzed, riparian law turns out to be not so
much a system of allocation of property rights as it is a
combination of a laissez-faire rule that lets most riparians
do pretty much as they please with the abundant water at
hand and a "fire-fighting device" that gives a legal mech-
OCR for page 74
74
anism for settling the few disputes that do arise. It is very
difficult to define the boundaries or limits of a riparian
right with certainty or to state the specific action it per-
mits, as we did with an appropriation. For this reason,
most riparian law is framed not as property rules but as
tort law rules that define a wrong and tell us not what
the owner of the right can do but what others may not do
to him.~° The first requirement of a violation of riparian
rights is that the plaintiff must prove that the alleged
violator has inflicted substantial ha upon the plaintiffs
reasonable use. There is an old legal maxim, "the law
does not concern itself with trifles," and suits to enforce a
naked right to the natural flow of the stream are no longer
favored. The minimum flow of a stream or the natural
level of a lake will be protected, however, if a defendant
destroys the values added to rural land by "living water"
or the site values of lakeside properties. Second, the
"equal rights" feature means that the law will try to
accommodate as many rights as possible. One person's
use will not be stopped as a violation of another's right
even though it causes harm, if the harm can be avoided by
some adjustment of the works or operations of one party
or the other so that both uses can co-exist. In many of the
riparian rights cases, the question of"reasonable use"
really breaks down to the tough question of which party
should reasonably be required to pay for the im-
provement the person whose use must be improved
or the person who gets the benefit of the improvement.~3
A corollary of the principles of equality and co-
existence is the riparian rule of sharing. Since all users
have equal rights, they must share the hardship when
there is not enough for all, and each must make a propor-
tionate reduction in his use.~4 But when co-existence of
incompatible uses is impossible, when a reduced quantity
would make an existing use inoperable or unprofitable, or
when a new use takes the water supply from an existing
reasonable use, the courts have almost universally pro-
tected the existing user from encroachment by the in-
novator. Some of the earlier cases said that the rule of
equality foreclosed consideration of priority when deter-
mining the reasonableness of an interfering use and that
the interests of the two parties would have to be bal-
anced.~5 But when a new use will destroy the values of
land, investments, and enterprises based on a use of
water, the new use seems quite unreasonable, and prior-
ity seems to loom large in the balance. No matter what the
courts say, their decisions quite uniformly protect the
prior user and enjoin the destructive newcomer or make
him pay for the harm he causes. This may often be a
subliminal recognition of what the economists call the
"Pareto compensation principle," or an unexpressed feel-
ing that equity and justice, "reasonableness" if you will,
require the gainer to pay the loser. At any rate, the courts
have protected irrigators from manufacturers, manufac-
turers from irrigators,~7 fishermen from bothi8—
depending on who was there first and whether the
~ . , , ~ , ~ .
latecomer Is enr~cn~ng n~mse~t at tne expense ot tne prior
user. Even when all uses are for the same purpose, such
~ . . . ~ . ~ . ~ ,' . .~ i' .1
FRANK J. TRELEASE
as recreational enjoyment of a lake, the courts have fa-
vored the early bird, and when newcomers start to over-
crowd the facilities, the judges put limits on use that
prevent destruction of the aesthetic qualities of the wa-
ter.l9
Riparian law theoretically limits rights to water to ripar-
ian proprietors, but while "nonriparians" may have no
rights to water they certainly make many uses of water.
There are thousands and thousands of householders,
farmers, dairymen, manufacturers, mine owners, food
processors, and subdivision developers who have some-
how acquired access across neighboring land to the
streams and who pipe water from it. Since they cause no
serious harm, they are not sued. They have no rights, no
ground of complaint if a riparian causes harm to them by
destroying their supply,20 but since water is abundant,
many of them do not seem to fear such action. Some of
them may have acquired a "prescriptive right" by long
continued use and are now safe; others may have tried to
buy rights to the stream as well as access to it. The success
of this attempt may depend on the state in which the
action took place. The courts of some states have permit-
ted the sale of a riparian right to a nonriparian and
allowed him to do with the water whatever the original
riparian could have done.2i Other courts have said that a
riparian right cannot be transferred so as to be effective
against third parties.22 This means that the nonriparian is
safe from suit only from the person he made his deal with,
and he is totally safe only if he can buy his peace from
every downstream riparian who might complain of his use
and from every upstream riparian whose future use might
harm him. This is a clumsy and expensive process, but it
has been done.
There seem to be no cases in which one riparian has
tried to buy out another and claim a double share against
the rest. On principle, however, the same considerations
ought to apply. If a riparian right is transferable, it should
be transferable to a riparian as well as to a nonriparian.
Even if it is not, there is nothing to prevent a group of
riparians from settling their differences by contract and
agreeing between themselves what is each one's reason-
able share or reasonable use of the water.23
The major diversions from eastern streams are now
those of municipalities, public utilities, metropolitan
water works, and rural water districts, not those of the
little grist mills and woolen mills that competed with
farmers during the formative period of riparian rights.
Municipal water rights arise not from riparian law but by
virtue of the superior position given to these agencies by
legislatively granted powers to take waters by eminent
domain. The city or its public supplier may condemn the
rights of or negotiate arrangements with principal ripar-
ians in advance, but often it merely builds its works,
takes the water, and sits back to see who sues it. In such
"inverse condemnation" suits, compensation or damages
are paid to any riparian who can prove injury to his right
or use.24 Very often nothing is paid because no serious
damage has been done. The city does not literally take
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Climatic Change and Water Law
over and exercise the water right formerly held by the
landowner, as it would with an appropriation; the riparian
right still exists, subordinated to the city's right.
In 10 of the 31 eastern states, the common law of
riparian rights has been superseded or substantially mod-
ified by the enactment of a statutory water code.25 Under
all of these, a permit is required for all substantial and
important uses of water, at least in problem areas. This
gives state control at a very important point and could be
used to prevent future conflict by denying permits to
undesirable uses, to avoid disputes by inserting condi-
tions in the permits that prevent the harm, or to resolve
them in advance by specifying priorities. Not much of this
has been done. Several of the statutes inject some priority
in the picture by providing that in issuing the permits the
authorities must protect vested rights and existing users.
But with three exceptions the eastern permit statutes are
limited to control of new uses and do not deal with the
problem of drought or shortage. Most of the statutes are
silent on the point of whether the permit rights are trans-
ferable, and several laws specifically state that they are
not. Flexibility of water use is provided by issuing short-
term permits that will allow the state water officials to
reallocate the water to new and better uses when the
existing permits expire.26
This is an impressionistic picture of eastern water law,
slapped on with a broad brush. Although it lacks precision
and definiteness, it at least shows that under any system
of eastern water law the cities are going to come out on
top if unprecedented drought should occur or if the
generous eastern streams should dwindle permanently.
In a riparian state, the cities' rights, usually to a specific
quantity fixed by the capacity of the works, would be
served in full and the riparians would bear the full brunt
of the shortage. They could suffer greater damages than
before or new harms, but they would have no right to
reopen the compensation suits or make new claims if the
time allowed by statute to file such suits had expired. In
the permit states, the administrators who readjust water
rights are likely to prefer the cities over the irrigators who
deplete the streams or the downstream power companies
who claim the full flow.
What if cities find that they are themselves in competi-
tion for the same supply? A few such cases have already
occurred, but each has been decided on a different basis,
and no one can predict a general rule. A Massachusetts
case was decided on priority; the city with the first claim
had the better right.27 Two cities in upstate New York
relied on authorizations from a state agency, and the
agency was held to have the power to modify its grants
and reallocate the water by administrative fiat.28 In the
third case, two cities across a state line from each other on
a small interstate stream were forced to share on the basis
of riparian principles of reasonableness.29
If drought strikes well-used eastern streams subject to
many riparian claims, we may expect many more lawsuits
that require adjustments between existing users, enforce
the rule of sharing between them, put a stop to nonripar-
75
fan uses, or impose restrictions on new riparian enter-
prises. When a reduced supply is unsuitable for an enter-
prise such as a steel mill or power plant, when a riparian
has a need for a specific and steady rate of flow, or when a
new user needs water for a highly valued purpose, there
will undoubtedly be attempts at economic reallocation
and transfer of existing shares, despite the difficulties of
negotiations.
The law of riparian rights is not very conducive to
engineering solutions undertaken by the private sector.
Storage of large quantities for long periods has been held
an unreasonable use.30 Riparian rights must be exercised
within the watershed of the stream,3i so transdivide di-
versions become nonriparian uses, fair game for any fu-
ture riparian use. Storage and importation of water may
still be undertaken by cities and other public agencies, of
course, and the principal municipal problem induced by a
change in water occurrence will be that costs of buying
out riparian rights will be magnified as those rights in-
crease in value with the decrease in supply.
In the permit states, the courts will have to fill in the
blanks in the statutes that regulate the initiation of uses
but that give no rules for distribution when there is not
enough water for all. Priority, sharing, or administrative
distribution are the possible choices. Only three of the
statutes indicate which is to be followed. Mississippi has
a simon-pure prior appropriation law on the western
model.32 The Florida law gives an elaborate machinery
for planning the distribution of water during shortages by
reducing withdrawals, restricting some uses, suspending
permits, and if things get bad enough to be called an
emergency, the plans are scrapped and an official steps in
to apportion, rotate, limit, or prohibit water uses.33 The
Kentucky statute empowers state authorities to handle a
drought or emergency by balancing the water rights and
available water between uses and temporarily allocate it
and restrict withdrawals to serve "the best interests of the
nublic."34 These laws were enacted in times of plenty
when it seemed easiest for the legislators simply to put all
water in the hands of a wise administrator with directions
to distribute it so that it would do the most good and best
serve the public interests. We may find, however, that
that wise administrator takes on some aspects of a dirty
bureaucrat when he decides, as he must, that the Smith
family's potato farm must dry up while the Joneses' vege-
table gardens continue to prosper or that both families
must lose their investment and be deprived of their
livelihoods so that their water may be given free to
residents and commercial establishments in the city, and
that the Apex Plastic Company may continue to pay
dividends, while the Acme Canning Company goes bank-
rupt.
GROUNDWATE R
More than a century ago an English court was faced with a
dispute between a mine owner who was de-watering his
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76
mine and a nearby tanner whose spring dried up. Since
the court did not know what was happening underground
and could not figure out what rules should regulate
groundwater, it ducked the issue by giving the overlying
landowner complete freedom to act without liability.35 It
did this by declaring that the water, like the rocks and
minerals, belonged to the owner of the surface of the land,
who might do as he pleased with his "property" (in this
case, throw it away). Some American courts still follow
this "English rule of absolute ownership." It should be
noted that this ownership of water is not so absolute as it
sounds, since a neighbor with a deeper well and a more
powerful pump can suck it out from under another's land
and make it his property. The rule gave landowners the
go-ahead to develop, and since harms were rare and
usually small, the rule worked fairly well. But the inven-
tion of the high-capacity pump increased the capacity to
inflict serious harm, and about the turn of the century
many cities turned to groundwater for supplemental and
unpolluted supplies. Their large withdrawals from small
country plots left the old oaken bucket hanging high and
dry in many neighboring farmyards. In a series of cases,
all entitled "Smith v. City of Jonesville" or the like, many
courts applied the "American rule of reasonable use."36
This is not so reasonable as it sounds, since the rule
permits the use of the water on overlying land without
regard to damage but holds it unreasonable to "transport
water to distant places for sale" that is, use it for domes-
tic and commercial purposes in cities. What it means, of
course, is that the city must pay the farmer for deepening
his well or bringing water from another source.
It can be seen that neither of these rules of liability or
nonliability creates water rights in the sense of allocating
water. In nearly all of the cases it can be determined or
inferred that there was enough water for both parties and
the real dispute was over the facilities who should pay
for a deeper well for the first user or his increased pump-
ing costs. The first real attempt at apportioning the supply
came in the western states when irrigators began to with-
draw very large quantities. The California courts evolved
the reasonable-use rule into the "correlative rights doc-
trine": the user on overlying land has a better right than a
person who takes the water to distant places, and as
between themselves, the overlying owners have correla-
tive rights, equal and proportionate shares.37 Most of the
western states, however, following the lead of New
Mexico, apply the law of prior appropriation to groundwa-
ter and have a single water law and set of procedures for
both groundwater and surface water or have separate
surface and groundwater codes that implement the basic
priority doctrine with somewhat different procedures.38
When man places different types of elements on
groundwaters with different physical characteristics, not
all of these doctrines will reach the most desirable result.
One problem has arisen when water tables drop (or arte-
sian pressure falls) as more and more wells are drilled,
but total withdrawals remain within the recharge. The
English rule and the correlative rights rule would proba-
FRANK J. TRELEASE
bly require all parties to bear their own costs as they
follow the water deeper. As between agricultural uses,
this equal treatment probably works well. Many appro-
priation laws have express statutory provisions to the
same effect that priority does not mean that earlier users
may require water levels and pressures to remain the
same. Very often the parties are not on an equal footing,
however, because municipal and manufacturing users
can pay more for water (and pumping costs) than can an
irrigator. Under the American rule, and under some
appropriation laws, the farmer cannot be driven beyond
1 . . ~ ~ . . , . ~ , ,,
hiS economic reach, and some cities and industrialists
would have to bear these expenses they impose on their
rural neighbors.39
If withdrawals reach the "safe yield," the limit of re-
charge, yet it is clearly desirable to maintain the source as
an annually renewable flow, neither the English rule nor
the American rule has any mechanism for limiting de-
velopment by stopping the drilling of new wells. The
California rule would operate to restrict overdevelopment
by preventing the outsiders from drilling, but each over-
lying landowner could have a well. Under prior appropri-
ation law, overdevelopment could be stopped by simply
denying applications for new permits.
If the safe yield has been exceeded and it is desirable to
reduce withdrawals, again the American and English
rules offer no machinery for accomplishing this. The
correlative rights rule would first stop those exporting
from the basin, then prorate the available supply among
the overlying landowners. Prior appropriation calls for
shutting down the junior wells. This might not always
work, since there is no assurance that, if a junior stops
pumping, the water will move to a senior well. What may
be needed is proration or rotation, perhaps giving senior-
ity effect by allowing the earlier wells a larger share or
longer pumping period.40
In some areas, recharge is so slight that the annual flow
of benefits from it is small in comparison with those from
the water in storage, and a decision may be made to
"mine" the water, to extract the stock for present benefits
just as we do with other nonrenewable resources such as
oil or coal. The ownership rule places no restrictions on
withdrawals in this situation. The reasonable use rule
might be construed as requiring pumpers from deep wells
who export the water for high values to compensate
overlying low-value users when the pumping costs ex-
ceed the agricultural values produced. But neither of
these rules would prevent a race for the water and a
disastrous exhaustion of the resource. The California rule
might do so if the court were to hold that pro rata sharing
could be interpreted to give each landowner the
ownership of a specific quantity of the extractable water.
Prior appropriation looks inconsistent with groundwater
mining at first blush, since each new well will theoreti-
cally injure the first one by hastening the exhaustion of
the aquifer. But the courts have refused this literal view of
priority and handle groundwater mining quite well. They
have approved administrative schemes that place a time
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Climatic Change and Water Lau,
dimension on the water right and limit the rate of with-
drawal and the number of water rights so as to prevent a
race and keep the aquifer producing for a sufficient
number of years to permit amortization of investment in
water-using equipment and enterprises.4i
WATER ORGANIZATIONS
Every person is a water user, but very few have "water
rights" to stream water or groundwater. An intermediary
stands between most consumers and the source, an or-
ganization that withdraws water in wholesale lots and
distributes it at retail. The distributing agency has water
rights that govern its relations with others who have rights
to the source, but another type of law regulates its rela-
tions with its customers. Urban organizations are usually
different from rural, but each may be either public or
private. The city dweller is typically served by a public
utility company or the municipality itself; the irrigator by
a mutual company or some fo~lll of public district.
The public utility, or public service corporation as it is
often called, is a private firm organized for profit, but one
that holds special privileges granted by the state.42 It has
a franchise to use the public streets for its pipes, it usually
has a monopoly, and it has powers of eminent domain that
enable it to acquire water and water rights by forced sale,
if necessary, upon payment of just compensation fixed by
a court. In return for these public powers it surrenders
some of its freedom. In most states, a water utility must
have a certificate of public convenience and necessity, a
license to enter the business, granted by the state public
service commission. It cannot choose its customers, it can
be compelled to render service (within the limits of its
water supply) to all consumers within its service area, it
cannot discriminate between its customers by giving spe-
cial rates to some, and it cannot discontinue service, even
by going out of business because of unprofitability, with-
out permission from the commission. Most important, its
rates and charges are subject to regulation. Rates are fixed
to cover operating expenses, including depreciation on its
properties and a fair return on the value of the property
devoted to public use.
Today most cities and towns engage in a mild form of
socialism and run the local water business as a municipal
service.43 Like the public service company, the city must
serve all persons and firms within the corporate limits on
an equal basis at fair rates. Only a few states subject Me
cities to public service commission regulation; in most,
the citizen who feels abused must seek a remedy in court.
Much litigation arises out of service to consumers outside
the city limits. Generally, a city may supply such people
and industries, but it cannot be forced to do so. If a city
undertakes to serve some outsiders, it will not be allowed
to discriminate against others similarly situated, but this
obligation cannot be enforced to the point that service
within the municipality is jeopardized. The city is gen-
erally free to set its rates to outsiders by contract, at what
the market will bear, and not infrequently the cities,
77
trading on their monopoly position, exact terms not ger-
mane to water supply or distribution, such as require-
ments that the residents of the area accept over city
services or agree to annexation.
The main rural water suppliers are Me irrigation com-
panies and districts of the West.44 The earliest needs to
combine capital and effort to build dams and large canals
serving many farms were met by some form of the mutual
water company, a corporation whose shareholders are
also its customers. Its capital may be obtained from sale of
stock or by borrowing, and its income is usually derived
from an assessment on the shareholders based on costs of
operation and maintenance. The mutual ditch is now
largely replaced by the irrigation district, the rural equiv-
alent of the local street and sewer districts in urban areas.
The district is a public body, an arm of government,
established by a vote of the residents and landowners
within it. Formed by majority vote, it offers one distinct
advantage over the voluntary company minority voters
cannot opt out. It is usually financed by a bond issue; its
income takes Me form of assessments against the im-
proved property large enough to pay principal and inter-
est on the bonds and cover current operating and mainte-
nance costs. Since it is a public agency, its assessments
are liens against the land and are collected like taxes.
Many irrigation districts cover federal Bureau of Reclama-
tion projects and do not build the works but collect for the
Bureau the repayment obligations of the irrigators and the
annual maintenance costs. A larger form, Me conservancy
district, covers a wider area, can include cities and towns,
and may collect small ad valorem taxes as well as assess-
ments. In this fashion some of the costs of the project are
borne by taxpayers in service and supply businesses that
receive secondary benefits from economic activity in-
duced by the project.
GOVERNMENTAL, PUBLIC, AND
ENVIRONMENTAL RIGHTS
FEDERAL POWERS AND PROGRAMS
Although the Constitution of the United States does not
contain the word "water," the Founding Fathers pro-
vided for a strong nation, and the powers they gave the
federal government have enabled it to engage in many
water-related activities and to undertake Me most exten-
sive program of water resources development in the
world. The national interests served by the federal water
resources programs and laws are those inherent in the
word "nation"—the use of the country's waters for the
free flow of trade and travel between its different sec-
tions, the strengthening of the country hot h internally and
in its relations with foreign nations, and the conduct of its
national business. The Constitution gives the federal
government powers to control commerce, provide for the
common defense, make war, enter into treaties, control
compacts between states, manage federal property, and
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78
raise taxes and spend money for the general welfare of the
country. All of these have been used to justify water
regulation of water-resource developments.
The most important source of federal jurisdiction over
water arises from the power "to regulate Com-
FRANK J. TRELEASE
gram adds cost-sharing assistance to individuals and
community groups for many types of water utilization,
which may include individual irrigation systems and farm
works. The Small Watershed Act fills the gap between
these programs, which emphasize land treatment and
merce . . . among the several States."45 It was early held small structures, and the program of the Corps of En-
that"commerce" includes `'transportation," which in turn gineers, which emphasizes large dams on the main
includes "navigation." The power to regulate navigation
includes the power to control navigable waters, to im-
prove their navigable capacity, to protect them with
flood-control projects, or to destroy them by dams. Powers
to obstruct or prevent obstruction lead to powers to
license obstructions and to the power to generate electric-
ity from the dammed water.
The federal program based on this power is the most
significant factor in modern American water regulation
and conservation. Huge multipurpose projects combining
features of navigation improvement, flood prevention,
power production, irrigation, and recreation encompass
entire river basins. The federal power over navigable
waters reaches far upstream to the nonnavigable stretches
and tributaries whose use could affect downstream navi-
gation.46
The Constitutional provision giving Congress power to
dispose of and regulate the territory and other property of
the United States was used to justify the Reclamation Act
of 1902,47 since that Act improved public lands and en-
hanced the desirability of their settlement. The war
power is not often used to justify water development, but
in 1916 Congress authorized the construction of the dam
that was to become the first unit of TVA, one of the
purposes of which was to provide nitrates and other
ammunitions.48 The treaty power governing the interna-
tional relations of the country has led to agreements
relating to the rivers and lakes that form the borders of the
nation or cross its boundaries.49 Pursuant to these treaties,
the United States maintains "agreed-upon international
lake levels, constructs reservoirs on boundary rivers, and
operates projects within its own territory" to carry out
treaty obligations to deliver water to neighboring coun-
tries. Today the general welfare power is perhaps most
important. This is the spending power the power of the
purse; it gives Congress authority to construct any water
project that in its opinion will promote the general wel-
fare. It is no longer necessary to demonstrate that a
specific power such as navigability is being exercised,
and a project may include for its own sake a feature of
flood control, irrigation, production of hydroelectric
power, supply of water to municipalities and industry,
and protection of fish and wildlife habitat and water-
based recreation, as long as some national purpose is
served rather than a mere local advantage.50
In addition to physical projects, the United States has
long had programs that encourage and assist water de-
velopment and use by the private sector and by local
governments and public agencies. The Soil Conservation
Service channels technical assistance and machinery to
individual farmers. The Agricultural Conservation Pro-
_
streams. The Farmers Home Administration provides
credit, grants, and technical assistance to rural groups for
developing community water-supply and waste-disposal
systems, while the Department of Housing and Urban
Development contains the Community Resources De-
velopment Administration, which gives planning, techni-
cal, and financial assistance for the construction of new
water and sewer facilities. The Department of Com-
merce, through the Economic Development Administra-
tion, provides financial assistance to governmental and
nongovernmental projects that will stimulate employ-
ment and increase income in depressed areas. The
Bureau of Outdoor Recreation coordinates and develops
programs under the Land and Water Conservation Fund
Act for planning, acquiring, and developing outdoor rec-
reation facilities; and the Bureau of Sports, Fisheries and
Wildlife is a large water user in its maintenance of wet-
land habitat and irrigation of wild and domestic range for
ducks and other wildlife.5t
One major feature of federal water law is its superiority
over state law. Federal projects are not restricted by
limitations imposed by state law.52 Their water rights are
superior to private appropriations or riparian rights. If
private rights must be taken over for or destroyed by a
federal project, all the owner can demand is compensa-
tion,53 and not even that if his rights attach to a navigable
river and were always subordinated to the "navigation
servitude," the federal overriding power.54
If drought and climatic change call for "engineering
solutions" to prevent potential harm or to rescue cities,
industries, and public activities that have already re-
ceived the blow, these national powers and programs will
probably provide most of them. The problems are likely
to be national or at least regional in scope and will call for
national solutions. More storage will call for huge dams,
which only the federal treasury can finance. Transmoun-
tain diversions and interstate or interregional transfers of
water will call for federal powers to countermand local
laws that establish in-basin preferences or attempt to
fortify interregional jealousies. And when "importation
from a water-rich area" reaches its ultimate dimension
and the United States begins seriously to consider ap-
proaching Canada for some of its surplus, the national
powers over foreign affairs will be called into play.
RESERVED RIGHTS, INDIAN RIGHTS
By virtue of a series of cessions and treaties, the federal
government at one time or another has been the owner of
practically all the land west of the Alleghenies. Until
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Climatic Change and Water Law
fairly recently, the major policy behind the public land
laws was one of disposal, and the United States gave away
or sold as much as it could to settlers, miners, railroads,
and states. Occasionally, it reserved land by withholding
it from the operation of the land laws and used it for
military reservations, Indian reservations, national parks,
national forests, and wildlife areas. In 1908, the Supreme
Court held that when the government set aside an Indian
reservation it also reserved from appropriation enough
water to accomplish the purposes of the reservation,
enough to irrigate the land so the Indians could change
from nomadic hunters to farmers and ranchers.55 Reserved
rights are an exception to the rule of priority, they are
dated as of the founding of the reservation (some tribes
may have rights that go back to prehistory), they exist
whether used or not, and they may be called into play at
any time. They are measured by the quantity needed to
irrigate all the arable land on the reservation,56 and
perhaps, although this has not yet been decided, enough
additional to develop all minerals and accomplish any
other modern objective of the tribes. When they come to
be used, these Indian rights will have the first or one of
Me first priorities on many western rivers. They will,
therefore, be the rights least affected by drought.
In 1963, the Court held that these rights attached to
other types of reservations.56 Many uses for parks or
campgrounds will be minuscule, but some for wildlife
areas or to maintain free-flowing streams in national
forests may be large. Reserved rights add considerable
uncertainty to off-reservation appropriations on the west-
ern streams, and their eventual exercise will exacerbate
the unsettling effects of any long-term water shortage.
STATE S RIGHTS AND POWERS
While state governments do not often engage in water-
using activities or water-development projects that call
for water rights like those of other entities, they have
been assigned shares in interstate rivers. When total
claims in all the states exceed the capacity of the stream,
each state is given a share and the water is then distrib-
uted to the water users under state law.
The first interstate allocations of water were made by
the Supreme Court of the United States, the forum for
interstate disputes. Rival states on an interstate stream
were said to be each entitled to an "equitable apportion-
ment of the benefits of the river."57 In several western
cases, the Court has allocated a specific share to an upper
state, leaving the rest to a lower,58 it has forced the upper
state to respect the priorities of projects in the lower
state,59 and it has split the water on a percentage basis.59
In the east, it has limited the size of a new project in the
upper state and required a cleanup of pollution and the
release of a minimum flow for the maintenance of
fisheries and sanitary flows in the lower state.60
Interstate compacts provide another method of appor-
tioning interstate water. The Court has trimmed excessive
79
claims to fit the available supply, and it has enjoined or
limited new projects in the upper state that would disturb
the status quo in the lower, but it has not apportioned
unappropriated water. When states wish to settle disputes
by agreement rather than litigation or when they desire
to fix shares in the unused water for future use, an agree-
ment between them, made with the consent of Congress,
is as binding as a decree of the Court.6i
Interstate compacts have settled disputes, divided un-
appropriated water into specific shares, approved specific
projects, set up operating criteria for projects, and estab-
lished commissions representing all the states (and some-
times the United States) to handle some matters of future
cooperation. When the first one, the Colorado River
Compact, was negotiated, the representatives of the
seven states involved could not agree on the share each
state would receive for its water users, but they did clear
the way for the Boulder Canyon Project (Hoover Dam and
Lake Mead) by accepting the compromise suggested by
Herbert Hoover, the federal representative at the confer-
ence, that at least the water could be divided between the
upper and lower basins, separated by miles of rocky
desert. A dependable flow of 15 million acre feet (mat)
per year was assumed, and 7.5 maf was assigned the states
of Arizona, California, and Nevada for use below the
Grand Canyon, and 7.5 mat to the upper basin states of
Colorado, New Mexico, Utah, and Wyoming. This ar-
rangement gave the upper basin states a fund of water
immune from priority and allayed the main fear of the
people that their eventual uses would be foreclosed by
California's earlier development. The lower basin was
given a large advantage by a provision that the upper
basin would deliver 75 maf in each 10-year period, which
places on the upper states all the risks that the flow will
not meet the assumed average of 15 maf.
The share of the upper basin was divided in 1949 by the
Upper Colorado River Basin Compact, which gave each
state a percentage of the basin's water. The lower basin
states were never able to agree on such an intrabasin
allocation; and, in 1954, Arizona sued California to de-
termine their relative rights. The case was perhaps the
largest lawsuit ever tried and was pending for 11 years.
The Court did not use the doctrine of equitable appor-
tionment; instead it found that in the Boulder Canyon
Project Act of 1927 Congress, by provisions for the man-
agement of water from Lake Mead, had allocated specific
shares- 1.4, 2.8, and 0.03 mat, respectively to California
Arizona, and Nevada.62 The holding that Congress had
power to allocate interstate waters created a third method
of so doing, but one that has not been used again.
The states do not have complete control over the water
in all cases. In some early suits, the United States asked
the Supreme Court to make an allocation to it as well as to
the states. This the Court refused, and the states' share,
whether fixed by decree, compact, or Congress, must
include (and accommodate) water rights for all federal
projects, federal reserved rights, and rights of the Indian
tribes.63
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80
ENVIRONMENTAL AND PUBLIC RIGHTS
Environmental law is sometimes thought of as something
quite new and modern, but it has roots deep in the law. In
the water field, eastern water law never completely aban-
doned the natural flow ideal and still places heavy em-
phasis on preservation of the aesthetic values of "living
water" and lake view. The flow of navigable waters is
protected from private interference with the "public
rights," the right to use the water for travel and carriage of
goods. On the smaller streams sportsmen and pleasure
boaters now enforce the public trust to protect values of
recreation and conservation in waterways once used by
fur traders in canoes or for the log drives of lumbermen.64
Several states have extended the notion of public water to
nonnavigable waters,65 and some of the permit statutes
establish minimum flows, which means that the stream
legally goes dry long before it is physically dry.66
Western water law was always founded on the notion of
beneficial use, and in this century the permit statutes
commonly insist that each new use must be "in the public
interest." Officials are beginning to recognize that some-
thing that causes more harm than it does good cannot be
beneficial and cannot serve the public interest. Several
western states now provide in one way or another for
instream uses and minimum flows and the preservation of
recreational, fishing, and wildlife values.67
These are the seeds from which the modern law of
environmental protection has grown. Consciously or un-
consciously the judges have always accepted the
economists' maximization principle- the search for
efficiency that combination of labor, capital, and re-
sources that produces the greatest excess of benefits over
costs.68 The law has not changed; only men's ideas of
what are costs and benefits have changed. Benefits are
those things that people value, and costs are things that
people do not like to lose. Our ancestors, our fathers' we
ourselves in our youth were willing to throw away as
worthless some scenic, recreational, and environmental
elements. Perhaps they were worthless because they
were so abundant. Now what is left is far from abundant;
it is scarce, partly because we have already thrown away
so much of it, partly because there are now so many of us
that we compete with each other for what is left, and
partly because our opportunities for enjoyment have been
broadened by the automobile and the modern highway.
Whenever scarce resources are desired by many people,
the law of supply and demand produces high values. The
decisions we make today are not those that we would
have made several years ago, because any time a formula
is applied, the result will change if a different value
of a variable is plugged into it. It is this change of values
rather than a change in the formula that results in the
protection given in the new environmental cases.
The change did not come about easily. As substantial
numbers of people became aware of environmental dan-
gers and tried to get protection for values that they trea-
sured, they found that their voices were falling on deaf
FRANK J. TRELEASE
ears. Not everyone shared their appraisal. In the early
stages of the environmental movement, entrepreneurs and
agency personnel did business as usual and dismissed
environmentalists as `'kooks" and the movement as a fad
that would soon disappear. Unable to get a hearing in the
agency offices, the environmentalists went to court.
Lawyers did what good lawyers always do and focused all
their knowledge on the problem, used all their skills, and
brought to bear all the techniques of courtroom and ad-
ministrative procedure on their side of the dispute. The
first real victory for the environmental movement came in
the Scenic Hudson case, in which it was held that the
agency making a decision must at least listen to the
environmentalists' side.69 As the movement enlisted
wider public support, Congress passed the National En-
vironmental Policy Act of 1970. In the Calvert Cliffs case,
agencies that attempted to brush off this Act were told
that they must comply with it.70 In case after case, the
Corps of Engineers, the Soil Conservation Service, and
many other agencies that do not deal with water have
been told that NEPA means what it says federal agencies
must consider in detail the environmental impact of a
proposed action, the alternatives that might avoid adverse
environmental effects, and any irreversible, irretrievable
commitment of resources. They must inject benefit-cost
analysis into the decision-making process at an earlier
stage and analyze every reasonable alternative to ensure
that the project eventually chosen provides the best com-
bination, instead of comparing costs and benefits of a
project after it is formulated.7i
The spectacular "environmental lawsuit" is likely to
disappear. Agencies, administrators, and businessmen
may have been hidebound, but they are not stupid. They
will not continue to butt their heads time and time again
against the same stone wall, never changing. They can
learn and are learning that a decent consideration of the
environment is a necessary part of the process of reach-
ing a resource decision. As this lesson is learned, there is
less and less need for long drawn-out lawsuits as more
and more the environmental factors are heard and
thrashed out at the agency level.
LEGAL CHANGE TO MEET
CLIMATE CHANGE
NATURE OF LEGAL ADJUSTMENTS
While it is probably true that most legislation is enacted
because a bad situation has arisen and a remedial law is
needed, still some is forward-looking, and many laws are
designed to prevent harm from occurring. Whether we
prepare for drought or react to it depends on the legisla-
tive perception of need. Legislators and congressmen are
busy men who deal with pressing current problems. They
will react swiftly to today's disaster, but they will plan
ahead to avert tomorrow's only if they are convinced that
a real problem exists today. If it could be predicted with
some certainty that within ten years the continental pre-
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Climatic Change and Water Lau:
cipitation would decrease by 15 percent and remain at
that level, we might expect a surge of new water laws that
would carry us into the new era with as little pain and
disruption as possible. Since the best proposition that can
now be set forth is that the climate may change, but we
cannot fix the odds that it will, and that droughts of
sharper intensity and longer duration than those we have
known are possible but we cannot evaluate these pos-
sibilities, then less immediate and forthright action may
be forthcoming. One difficulty is that almost by definition
our problem has some elements of unreality. Our concern
is with unpredictable change. The problem is similar to
some others we face: whether we should refuse to license
atomic reactors because there is one chance in a million
that one might explode, whether we should prohibit the
manufacture and use of aerosol deodorants because there
is one chance in 10n that they might destroy the world's
ozone layer, whether we should ban a food coloring that
induces cancer in mice and "might" induce cancer in
men. The law handles matters like these all the time,
prohibiting or imposing liability for high-risk enterprises
even though damages might be small in each case and for
low-risk enterprises when a single occasion could cause
enormous damage, whenver the product of risk times
harm is sufficiently frightening.
Even if a climatic change occurs, an immediate legal
reaction is not certain. There will still remain a question
of perception. When will a gradual change be recognized
as a drought? How long before a series of bad years will
be sensed as a change in climate? In the third year of a
drought will we be able to see that it is the third of ten?
There is a real possibility that we will muddle through
with our present laws. We have at least glimpsed what
would be in store for us if these were used to handle
change. Not all the consequences would be bad, but there
are some dangers that uncontrolled action could worsen
the situation and that sensible adjustments could be
blocked or made unnecessarily difficult or expensive. Yet
some laws at hand for handling shortages would do very
nicely for drought.
It is more likely that if a climatic change does occur the
lawmakers will see the inadequacies of existing laws and
will act to remedy the ills and patch up the damage. Even
short-term droughts have done wonders for the cause of
water law reform.
Of course, it is quite possible that legislators might act
in advance and be ready with laws on hand to handle
drought and change when they occur. Since the im-
provements needed are of the same nature as those de-
sired for other purposes, the unpredictability of supply
may be used to reinforce the movement already on foot to
prepare for the predicted increase in demand. Much of
what is needed is simply improved water law. Much
improvement will take the form of following the example
set by laws in force elsewhere, and much will simply
continue existing movements toward better laws. Uncer-
tainty of supply, if brought home to lawmakers, could
accelerate a trend already in motion.
81
THE DIRECTION OF LEGAL CHANCE
Since the solutions to legal problems created by less
water are either engineering or economic, a law Mat
facilitates these solutions must paradoxically combine
features of both certainty and flexibility certainty to
encourage investments in projects and flexibility to per-
mit shifts of water between users and uses.
In the field of water rights this is really not too difficult,
and the western appropriation, a definite, easily enforced
but transferable right, comes close to filling the bill. The
security needed to finance Iong-term projects is there,
and interim adjustments can be made between uses so
that the most valuable survive and the least productive
are discontinued. But these adjustments are not easily
made, and unregulated trading in property rights some-
times causes serious loss to third persons or harm to the
public. So what is really needed to improve appropriation
law is to tighten up yet speed up the regulatory process so
the market can operate smoothly and quickly without
these injurious side effects.72 One such effect is reflected
in the rule that a change in use must not injure other
appropriators. In practice, this means that an irrigator
cannot sell his gross water right, his total diversion, since
his crops do not consume all the water and downstream
users are dependent on the ''return flow.', A hearing must
be held, complete with conflicting expert testimony, to
determine how much can be sold, and permission to make
the change may be denied on guesses as to probable
effects. If all rights were redefined from terms of diver-
sion to terms of consumptive use, if formulas for caleulat-
ing consumption were improved and applied automati-
eally, if trials and experiments were allowed to determine
the actuality rather than the probability of harm or no
harm, the process would be vastly improved.
Another needed addition would facilitate interim and
short-term adjustments. Most changes and sales are of
water rights, permanent property rights, good for water
this year and every year. This fits many needs, but there is
also need for sales of water as a commodity. One state
recently attacked this problem by allowing the "leasing"
of water rights.73 In a water-short year, a bean grower who
anticipates a high price may buy the water of a potato
grower who foresees a glutted market. A city faced with
unusual drought may buy a season's supply to tide it over
instead of a permanent right that will go unused in most
years. Similar rights may be needed in many states.
It is obvious that riparian law has little to offer. As
supplies dwindle and demands increase in a riparian law
state, withdrawals and consumptive uses will become
more obvious and create more conflicts, more need will
arise for adjustments and share fixing, and more eom-
plaints will be made of nonriparian uses. In-place uses for
the amenities and site values are bound to suffer. New
users will cut deeper into supplies already in use and will
find themselves facing suits more often. Storage and im-
portation are risky, and attempts to purchase water, water
rights, and freedom from lawsuits involve complex, mul-
OCR for page 82
82
tiparty, expensive negotiations. The lawsuit is too .,3ow
and expensive to handle these conflicts on a large scale.
As the field for new uses narrows, there is more need
for administrative controls. Those states with permit laws
have made a beginning, but drought would bring out the
need for better identification of rights and determination
of permissible action, more certain rules of who will get
how much water in times of shortage, more stability of
tenure and investment in water-control works and
water-using enterprises. Nonriparian uses should be
legitimatized, and limitations of uses to riparian land or
single watersheds should be recognized as uneconomic
and abolished.74
A better method of achieving flexibility should be
found. The bureaucratic shift of water "to its highest and
best use" by canceling and juggling permits has a surface
appeal, but it must be remembered that laws regulate not
water but people, who may be farmers, stockholders in a
manufacturing company, or householders in a city. Water
and money are for the most part interchangeable, and
what we really mean by "shifting water from existing uses
to better uses" is enriching some people and impoverish-
ing others. When this is better understood, a change to a
system under which the gainers pay the losers seems
likely. Administrative action is usually needed only when
we have "market failures," "externalities," and "social
costs." A water market should be regulated to avoid these,
but when it works, it works better and more efficiently
than a government agency. The bureaucrat trying to de-
cide the best use of water as between agriculture and
industry will have to investigate, hold hearings, hire
experts, finance a university study, and make findings.
The manager of the Tootsie Textile Company and Farmer
Jones, sitting at the bargaining table, can tell the answer
in a minute by a glance at the bottom line of last year's
books.
All this, of course, would be a movement toward the
western appropriative right. For some reason easterners
do not like prior appropriation; for them it still has some
connotations of a Wild West rip-off of the public domain.
But in a modem controlled situation, priority is not a grant
of special privilege, it simply means that the state, having
granted the water to one person, will not grant that same
water to another. On a fluctuating source, priority is a
necessary element of a right, one that marks its bound-
aries and limits new grants to water that is available in
nature and not already committed to someone else's exist-
ing use. Sometimes sharing of short supplies among simi-
larly situated persons such as farmers may be desirable,
and within a single project is possible, but even then the
rights of the sharing group must be differentiated from
those of other groups or users.
Somewhat similar directions can be assumed for
groundwater. In the eastern states, a long-term drought or
change would be likely to cause a sudden strain on
groundwater, since in many areas a move to it will offer
the quickest and cheapest method of augmenting a dwin-
dling surface supply. Safe yield, water table, and mining
FRANK J. TRELEASE
problems could move eastward as the effects of long-
continued drought move underground. Unregulated de-
velopment, if it occurs too fast, could require cutbacks in
pumping and abandonment of wells. Decreased supplies
and increased use will probably hasten the shift of law
away from "ownership" rules to regulation of withdraw-
als and allocation of shares. Economic solutions to
groundwater shortage will call for some variation on the
themes already played. The best form of groundwater
right where the water is a "flow resource" is a rule of
priority that divides the recharge into specific shares and
that limits the number of shares to the available supply. If
the water is a "stock resource" being mined, apportion-
ment of a specific quantity of water to each claimant is
probably the ideal solution.
One legal change much advocated by economists is the
improvement of institutional arrangements so as to enable
a pricing policy to operate as an incentive to ensure
utilization of water at the most efficient level.75 Most
water can be withdrawn from the source for free: the
western appropriator pays nothing when he opens his
ditch; the riparian proprietor, the overlying landowner,
the city can turn on a pump with no charge other than for
electricity. But if water were properly priced, we are told,
there would be more water to go around since waste
would be avoided; and when the source diminished, the
reduced supply would generate a higher price and water
would move naturally to its highest and most economical
use. The English have such "charging schemes" set up
under which a landowner must pay for exercising his
riparian rights or pumping from his own well, but the
notion is not a popular one in America.
More hope for water pricing as a solution to reduced
supplies of water might be held out for improvement of
the pricing policies of the distribution organizations that
now sell water. Usually their prices are fixed with no
concern for demand or encouragement of economy.
Mutual irrigation companies assess their shareholders for
current operating costs, irrigation districts levy assess-
ments on the same basis plus debt service and retirement.
Municipalities and metropolitan agencies similarly look
to recapture of costs rather than to value of water in fixing
charges, and public utilities seek a fair return on and
amortization of their investment. Unless water is sub-
sidized, it must pay the cost of producing it, of course, but
it might be desirable to have this its minimum price and
set the going rate so that demand at that level just equaled
the supply. Pricing could function in this fashion whether
demands increase or supplies diminish; water would
serve its most valuable (efficient) uses. Before this could
happen, most laws authorizing and regulating water-
supply organizations would have to be modified.
Federal water law might need to change very little. The
United States is the world's largest engineering and con-
struction firm and will probably supply most engineering
solutions. The federal government has ample Constitu-
tional powers for handling climatic change and drought.
New federal projects and stepped-up programs will be
OCR for page 83
Climatic Change and Water Law
needed for most rescue or preventive operations, since
local and private measures will run into financing dif-
ficulties and legal restrictions, such as against transdivide
diversions.76 But except for project and action authoriza-
tions and appropriations, little new federal law seems
needed. If the nation wishes to prepare for the possibility
of drought or change, it might be wise not to now build
dams and facilities with excess capacity that might stand
unused as monuments to folly but to eliminate much of
the time lag usual in federal projects by having on hand a
backlog of standby projects engineered on the basis of our
best guesses, ready for immediate action when needed.
From the national point of view, it could be found that
some interstate decrees and compacts that allocate shares
of rivers to states have confirmed or authorized uses that
are not the best. If stream flows decrease, some states
with specific plans for their shares of unused water may
find the reduced amounts too small. A long-term drought
c`'uld trigger attempts to renegotiate the compacts or seek
congressional action to reallocate the water and redivide
the rivers. It is not expected that this would be an easy
process, and engineering solutions by importing water
may be more attractive.
A very difficult problem facing the West could be made
doubly difficult by a decreased supply. When Indian
reserved rights become fully exercised for irrigation and
mineral development, a number of persons now using
water off the reservation will suffer a loss of their water.77
There could be an extensive reduction in land values,
income, and area prosperity. The dislocation could be
intensified if white owners of water rights are squeezed
from the top by native-American claims and from the
bottom by reduced stream flows. Some engineering solu-
tions are possible where storage could firm up both white
and Indian rights. Economic solutions involving payment
to Indians may not be available, since the Indians have
had poor results from selling their lands and they may
need water to maintain their cultural base and their
homelands. Another possibility has been suggested: the
United States should regard this as a national obligation
and include compensation to displaced off-reservation
users as a part of the cost of future Indian projects. Some
object to this as payment for the return of stolen property
and as increasing the costs of Indian projects, but it might
make those projects more politically feasible, and it might
be remembered that it was not the present water users but
their father's father, or their predecessors in title, who
''stole" the Indian's water.
Environmental pressure to save streams from develop-
ment and preserve amenities may increase but may be
offset by increased demands for withdrawal and storage.
As man's demands increase and nature's supply lessens,
all water will become more valuable. If population pres-
sures and industrial growth send municipal and industrial
demands skyrocketing, then some features at the lower
end of the environmental scale, which are protected to-
day, may be sacrified in the future. On the other hand, as
less water and more development make free-flowing
83
streams more and more rare, the aesthetic, recreational,
and ecological value of the remainder will shoot up, and
we may tell cities and industries to tighten their belts,
sharpen their efficiencies, and recycle their present
supplies. This is an economic process, although not al-
ways performed in the marketplace. While we pay for
some recreational experiences and sometimes combine
the interests of many into private organizations that can
compete for water in a sense, we prefer that most of the
matters we call ''environmental" be provided as a public
good, and we seek legal solutions by political processes
rather than economic solutions dictated by market forces.
To sum up in a single sentence: If our climate should
change for the worse, our water laws should change for
the better.
RE FE RE N C E S
[Note: Most of the legal rules stated in this chapter are gener-
alized statements distilled from a number of cases or derived
from the trend of decisions. The citations in these notes are to
typical, illustrative, or "leading" cases. Differences in fact situa-
tion, variations in statutes of different states, and disagreements
between courts of different states can add enormous complica-
tions. Most of the cases cited here and many of the variations on
these themes can be found in F. Trelease, Cases ~ Materials on
Water Law, 2d ed. (West Publishing Co., St. Paul, Minnesota,
1974), a student textbook. The bracketed references to "Tre-
lease" following the official citations are to pages in that book.
The National Water Commission, established by the United
States in 1968, was very sensitive to legal problems. Its report,
Water Policies for the Future (Government Printing Office,
Washington, D.C., 1973), contains much material relevant to this
paper, and references to "NWC" are to that report.]
1. R. Pound, My Philosophy of Law, 182 (1941).
2. Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 92 P. 2d
568 (1939) [Trelease 63~7].
3. Windsor Reservoir Co. v. Lake Supply Ditch Co., 44 Colo.
214, 98 P. 729 (1908) [Trelease 6749].
4. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882) [Trelease
78-89].
5. Empire Water ~ Power Co. v. Cascade Town Co., 205 F. 123
iC A. 8th 1913) [Trelease 42~9].
6. Farmers Highline Canal Co. v. Golden, 129 Colo.575, 272 P.
2d 629 (1954) [Trelease 202-217].
McPherson, Ragsdale, and Thompson, Improvement of
Water Rights Through Unification, II Land & Water L. Rev.
326 (1967~.
8. Federal Land Bank v. Morris, 112 Mont. 445, 116 P. 2d 1007
(1941) [Trelease 69-70].
9. Stratton v. Mt. Hermon Boys School, 216 Mass.83, 103 N.E.
87 (1913) [Trelease 69-70].
10. American Law Institute, Restatement of Torts 2d, Tentative
Draft No. 17 (1972).
11. Gehlen v. Knorr, 101 Iowa 700, 70 N.W.757 (1897) ETrelease
295-298].
12. Collens v. New Canaun Water Co., 155 Conn. 477, 234 A. 2d
825 (1967); In re Martha Lake Water Co., 152 Wash. 53, 277
P. 382 (1929) [Trelease 26~278].
13. Hazard Powder Co. v. Somersville Mfg. Co., 78 Conn. 171,
61 A. 519 (1905) [Trelease 298-303].
OCR for page 84
84
14. Evans v. Merrzweather, 4 Ill. 492 (1842) [Trelease 303-306]. 42.
15. Tyler v. Wilkinson, 24 Fed. Cas.472 (1827~; Gehlen v. Knorr, 43.
supran.ll. 44.
16. Farrell v. Richards, 30 N.J. Eq. 511 (1879) [Trelease 320]. 45.
17. Macomber v. Godfrey, 108 Mass. 219 (1871) [Trelease 321- 46.
325]. 47.
18. Taylor v. Tampa Coal Co., 46 So. 2d 392 (Flat 1950) 48.
[Trelease 274]. 49.
19. Thompson v. Enz, 385 Mich. 103, 188 N.W. 2d 579 (1971)
[Trelease 286-290].
20. Kennebunk Water District v. Maine Turnpike Authority, 145
Me. 35, 71 A. 2d 520 (1950) [Trelease 33~342].
21. Lawrie v. Silsby, 76 Vt. 240, 56 A. 1106 (1904) [Trelease
352~57].
22. Duckworth v. Watsonville Water ~ Light Co., 158 Cal. 206, 53.
110 P. 927 (1910) [Trelease 350~51]. 54.
23. Kimberly-Clark Co. v. Fatten Paper Co., 153 Wis. 69, 140 55.
N.W. 1066 (1913~. 56.
24. Pernell v. Henderson, 220 N.C. 79, 16 S.E. 2d 449 (1941) 57.
[Trelease 256, 357~62]. 58.
25. Delaware, Florida, Iowa, Kentucky, Maryland, Minnesota,
Mississippi, New Jersey, North Carolina, and Wisconsin
[Trelease 414-434].
26. Maloney, Ausness, and Morris, A Model Water Code (1972~.
27. Somerset v. Dighton Water District, 347 Mass.738, 200 N.E.
2d 237 (1964) [Trelease 366].
28. Syracuse v. Gibbs, 283 N.Y. 275, 28 N.E. 2d 835 (1940)
[Trelease 369].
29. Hackensack Water Co. v. Nyack, 289 F. Supp. 71 (S.D. N.Y.
1968) [Trelease 373].
30. Herminghaus v. Southern California Edison Co., 200 Cal.
81, 252 P. 607 (19261.
31. Anaheim Water Co. v. Fuller, 150 Cal. 327, 88 P. 978 (1907)
[Trelease 241-245].
32. Miss. Code §§ 51-31-1 to 51-31-53.
33. Fla. Stat. Ann. § 373.233.
34. Ky. Rev. Stat. § 151.200~1).
35. Acton v. Blundell, 152 Eng. Rep. 1223 (1843) [Trelease
461-467, MWC 230-232].
36. Forbell v. City of New York, 164 N.Y.522,58 N.E.644 (1900)
[Trelease 461-467].
37. Katz v. Walkinshaw, 141 Cal. 116, 74 P. 766 (1903) [Trelease
468-472].
38. Alaska, Colorado, Idaho, Kansas, Montana, Nevada, New
Mexico, North Dakota, Oklahoma, Oregon, Utah, Washing-
ton, and Wyoming [Trelease 475].
39. Colorado Springs v. Bender, 148 Colo. 458, 366 P. 2d 552
(1961) [Trelease 510-520].
40. Ore. Rev. Stat. § 537.735; Wyo. Stat. § 41-132.
41. Fundingsland v. Colorado Ground Water Commission, 171
Colo. 487, 468 P. 2d 835 (1970~; Mathers v. Texaco Inc., 77
N.M. 239, 421 P. 2d 771 (1966) [Trelease 484 193, MWC
238-242].
FRANK J. TRELEASE
Trelease, 624-629.
Trelease, 655-657.
Trelease, 61() 647.
U.S. Const. Art. III, Sec. 8.
U.S. v. Rio Grande Irrigation Co., 174 U.S. 690 (1899).
43 U.S.C.A. §§ 371-615.
Ashwander v. T.VA., 297 U.S. 288 (1936~.
. Arizona v. California, 283 U.S. 423 (1931) [Trelease 69
703, 740-750].
50. U.S. v. Gerlach Live Stock Co., 339 U.S. 725 (1950) [Trelease
825].
51. NWC, Chap. 5, 111-204.
52. First lowa Hydro-Electric Cooperative v. F.P.C., 328 U.S.
152 (1946) [Trelease 71~727].
Fresno v. California, 372 U.S. 627 (1963).
U.S. v. Rands, 389 U.S. 121 (1967) tTrelease 818-824].
Winters v. U.S., 207 U.S. 564 (1908) [Trealease 796-808].
Arizona v. California, 373 U.S. 546 (1963) [Trelease 799].
Kansas v. Colorado, 206 U.S. 46 (1907) [Trelease 659-662].
Wyoming v. Colorado, 259 U.S. 419 (1922) [Trelease 66
667].
59. Nebraska v. Wyoming, 325 U.S. 589 (1945) [Trelease 671-
683].
60. New J~rsey v. New York, 283 U.S. 336 (1931) [Trelease
677~81].
61. Hinderlider v. La Plata River ~ Cherry Creek Ditch Co.,
304 U.S. 92 (1938) [Trelease 683-686].
62. Arizona v. California, s~4pra n. 52.
63. Nebraska v. Wyoming, supra n. 56.
64. Meunch v. Public Service Commission, 261 Wis. 492, 53
N.W. 2d 514 (1952) [Trelease 403-407].
65. Minn. Stat. § 105.38 (1~; Burn s Ind. Stat. §§ 27-620, 27-621.
66. Iowa Code §§ 455A.1, 455A.22; Miss. Code §§ 5956-02, -04;
Del. Code § 6102 (b).
67. Trelease 37, 41, 61-63.
68. Young ~ Norton v. Hinderlider, 15 N.M. 666, 110 P. 1045
(1910) [Trelease 139-154].
69. Scenic Hudson Preservation Conference v. F.P.C., 354 F. 2d
608 (C.A. 2d, 1965) [Trelease 751-764].
70. Calvert Cliffs Coordinating Committee v. A.E.C., 449 F. 2d
1109 (C.A.D.C., 1971) [Trelease, 764-795].
71. U.S. Water Resources Council, Water and Related Land
Resources: Principles and Standards for Planning, 38 Fed.
Reg. 24778 (1973).
72. NWC 260-264.
73. N.M. Comp. Law § 75-40-1.
74. NWC 280-294.
75. NWC 247-259.
76. NWC 317~333.
77. NWC 473-483.
Representative terms from entire chapter:
water rights
