Water Laws and Concepts 

Water Laws and Concepts 

By Harold E. Thomas 

GEOLOGICAL SURVEY CIRCULAR 629 

Washington J 970 
United States Department of the Interior 

ROGERS C. B. MORTON, Secretary 

Geological Survey 

V. E. McKelvey, Director 

First printing 1970 

Second printing 1973 

Free on application to the U.S. Geological Survey, Washington, D.C. 20244 
CONTENTS 

Page 

Abstract--------------------------------------------- I 

Introduction ----------------------------------------1 

Influence of environment------------------------- 2 

The hydrologic cycle---------------------------3 

Humid regions and arid regions----------------4 

Effects of man upon natural flow systems----5 

Influence of heredity------------------------------ 6 

Regions of water abundance------------------- 6 

Regions of water scarcity -----------------------8 

Rivers in arid regions--------------------------- 8 

Page 

Influence of heredity-Continued 

Some products of migration------------------- 9 

Effects of increasing water use __________________ }} 

Increasing consumptive use __________________ J 2 

Increasing non consumptive use --------------13 

Trends in American culture---------------------13 

Public rights in water----------------------------_} 5 

References-----------------------------------------1 7 

Legislation and court decisions -----------------18 

III 

Water Laws and Concepts1 

By Harold E. Thomas 

ABSTRACT 

Throughout human history various laws and customs 

have developed concerning the individual rights and 

rights in common to the waters of the earth. Many 

existing laws and concepts are clearly influenced by the 

environment in which they originated and reflect the 

relative abundance or scarcity of water. Many concepts 

reflect the people's original interests in the water and 

once established have been passed from generation to 

generation with little modification. Some laws and 

concepts haye been carried by people in their migrations 

and colonial expansions to vastly different 

environments, with rather curious consequences. In 

many places water laws that had been well adapted to 

the natural environment have become less tenable 

because of man's activities in modifying that 

environment, or becuase of increasing use of water: 

Increasing consumptive use shifts the water economy 

toward lesser abundance or increasing deficiency; 

increasing nonconsumptive use results in pollution of the 

water resources, so that they become less suitable for 

other users. The water-rights systems in the United 

States vary from State to State: some are reasonably 

fitted to their environment, some have outlived their 

place in history, some are wasteful of water, some show 

favoritism to certain special interests or segments of the 

population. Water-use rights are universally recognized as 

real property, with constitutional protection against 

deprivation without due process of law. 

1 Orginally published in the Transactions of the 

American Geophysical Union, 1969, v. 50, no. 2, 

p.40-50. 

I 

INTRODUCTION 

A publication on water management of the 

National Academy of Sciences ( 1966, p. 38) 

contains the following statement: 

In the public allocation process it is unlikely that 

society will welcome widespread and strict 

allocation of water. Water is regarded as a 

birthright of Americans-a common holdi"~ in 

which there are common stakes. C•her 

commodities are not so regarded; water is si"~ed 

out for special consideration. 

This statement is an expression of human rights 

without qualification as to prope.rty or 

economic status. It also implies that peor ~ have 

rights to water suitable and adequate to their 

needs wherever they may be. 

As a nation we have enough water for 

everyone's needs. There is no nati"lnwide 

shortage and no imminent danger of one 

(National Academy of Sciences, 1966, p. I). 

Local and regional shortages of usable water do 

exist-some imposed by the natural 

distribution of precipitation and oth~rs by 

pollution of fresh-water supplies-but science 

and technology are enlarging the range of 

possible alternatives in water management to 

alleviate this situation. With our existing 

technology. water of a specific quantity and 

quality can be delivered anywhere on the 

continent. provided that someone is a1' ~ and 
willing to pay the costs, which technologies are 

attempting to reduce. 

Until recently the rights in common to water, 

applicable to each member of the mass of 

population, have received far less attention than 

the individual rights to use water, recognized as 

property rights. However, most Americans, and 

practically all urbanites, obtain water as one of 

the "utilities," available upon demand, and for 

them water thus has become a common holding 

in which there are common stakes. Advancing 

technology, increasing affluence, and economies 

of scale are increasing our capabilities of 

surmounting whatever limitations may be 

imposed by natural environments, and it is likely 

that an increasing proportion of the total 

population will in future obtain water as a 

utility available upon demand, wherever they 

may be. The public rights in common to water 

are not specifically mentioned in the U.S. 

Constitution, and their protection has been 

developed over the years by increasingly broad 

interpretation. 

It may well be that the concept of a 

"birthright" to water has grown with increasing 

urbanization. Several cities, when faced by a 

demand for water beyond the capabilities of the 

1 o cal supplies, have had the financial and 

political "muscle" to import supplies from 

sources tens and even hundreds of miles away. 

Today there are millions of urbanites whose 

water rights can best be described as common 

stakes in a common holding, since, whether they 

know the direct costs of water supply and 

disposal or not, they pay social costs in the form 

of local, municipal, county, State, or Federal 

taxes. 

Advancing technology, increasing affluence, 

and economies of scale will make possible the 

development of farflung storage and distribution 

systems to move water from sources of supply 

to areas of demand, even including interregional 

transfers. Thus it is likely that an increasing 

proportion of the total population will receive 

water as one of the utilities, upon demand, once 

limitations imposed by the natural resources are 

surmounted. The concept of water as a utility, 

2 

to be made available to man in whatever 

environment he may be, constituter recognition 

of the right of every individual to water as a 

flow resource, a usufructuary right to a rate of 

flow set by his demands. 

This concept is by no means universally 

established in law. Under those le.'!al concepts 

developed when man attempted to adapt to his 

environment rather than to change it, a water 

right is a usufructuary right and is also real 

property, implying a stability greater than is 

possessed by water as a flow resource and more 

comparable to the stability of the land. If the 

inevitable natural fluctuations in the resource 

cause damage, this is accepted as one of the 

hardships this planet is periodically tossing at its 

inhabitants; but if any man is partly responsible, 

he may be subject to injunctions and damage 

suits. Thus many water rights are vested"in 

perpetuity," and the conditions under which the 

rights were established should not be changed by 

man: when once found to be navigable, a 

waterway remains so; natural shorelines and 

levels of lakes should not be change1 by man; in 

some areas a well owner is consider~d to have a 

right to the water level or artesian pressure that 

existed at the time his well was drilled; along 

some streams every riparian owner 1: ".:\S a right to 

the natural flow undiminished in cuantity and 

unimpaired in quality by anyone else. 

Many of our existing water laws rnd concepts 

are clearly influenced by the environment in 

which they originated; the chara~teristics of 

hydrologic environments are summarized below. 

Also, many concepts have been passed from 

generation to generation ,~·ith little 

modification: these concepts ar~ described 

subsequently as influences of heredity. 

INFLUENCE OF ENVIRON~·ENT 

Mankind has been able to occury almost all 

the great variety of environments afforded by 

the land masses of the earth without 

modification of his basic biological requirements 

for "fresh" water by selective use of the waters 

available in each environment. Tl'~ origin of 

practically all the fresh water on earth is 
traceable to a natural distillation process 

powered by solar energy and consisting of the 

three stages of evaporation, transport, and 

precipitation. The term "hydrologic cycle" 

denotes this circulation from oceans through the 

atmosphere to the lands, and then, possibly with 

numerous delays, back to the oceans. 

THE HYDROLOGIC CYCLE 

More than 97 percent of all the water on 

earth is in the oceans (Nace, 1964). Solar heat is 

sufficient to cause evaporation of water at an 

average rate of I meter a year over the surface of 

the globe (Budyko and Kondratiev, 1964, p. 

552), although the rate is far less at the poles 

and greater in the tropics. Thus the oceans 

represent a vast water reservoir, of which only a 

very small proportion is involved in the 

hydrologic cycle: a molecule of ocean water has 

a statistical chance of getting up into the 

atmosphere once in 3,500 years and even less 

chance of being carried over land to be 

precipitated. (This statistic is based on the 

estimate that the average depth of the oceans is 

3,500 meters and therefore 3,500 times the 

average annual rate of evaporation.) The lands 

gain more water by precipitation than they lose 

by evaporation: over the conterminous United 

States the long-term average annual precipitation 

is about 750 millimeters (30 inches); the average 

outflow to oceans by runoff in streams is about 

200 millimeters (8~ inches); and the difference 

of 550 millimeters (21 ~ inches) is the estimated 

average annual evaporation within the Nation's 

boundaries plus the unknown subsurface flow to 

oceans, presumed to be small (Piper, 1965). 

Precipitation includes all forms of water 

particles that fall from the atmosphere and reach 

the ground'. Precipitation from a storm is either 

absorbed in the soil (inftltration) or, in cases of 

heavy rain or snow, accumulates on the surface 

or runs off overland. This overland runoff, if 

any, may continue only until the water finds a 

place where it can infiltrate into the ground, or 

it may enter a channel, drain, river, or lake. The 

stormflow collects in the various channels of the 

drainage system, where it may create flood 

stages and inundate lands capable of absorbing 

3 

part of the water; this stormflow may continue 

for days or weeks and may eventuar~· be 

debouched by the trunk river into an ocear .. 

After the storm, the surface materials dry off. 

Some of the water in the soil also evapC',..ates, 

and some is used in the life process~s of 

vegetation, including transpiration, which 

returns water as vapor to the atmosphere. Thus 

soil moisture constitutes temporary storr~e of 

flow resources in the hydrologic cycle, which 

resources benefit man by sustaining plants for 

food, forage and forest, but which are likely 

eventually to return to the atmosphere by 

evapotranspiration. 

If water infiltrates into soil in excess of the 

soil's capacity for retention, it moves downward 

by percolation through the soil and underlying 

unsaturated materials; when it reaches a zone 

where all pores are full, it becomes g·ound 

water. A ground-water reservoir is made up of 

rock strata or rock materials sufficiently 

permeable to yield water to wells and sr,..ings; 

such strata are also called aquifers, or 

waterbearers. In them the flow is largely lateral, 

in the direction of decreasing head, and mcves at 

slow rates because of the friction of the r0rous 

medium. Some ground water may travel only a 

few meters before it reappears at a sloping land 

surface as a seep or a spring. Some may be at 

shallow depth below the land surface, so that it 

can be reached by the roots of phreator"-ytes 

(plants whose roots tap ground water) anct thus 

return to the atmosphere by transpiration. By 

contrast some ground water may travel long 

distances underground and some may never 

reappear at the land surface, discharging instead 

directly into an ocean. Between these extremes, 

most ground water moves slowly underground at 

sufficient depth to be invulnerable to 

evapotranspiration, until it is forced to the 

surface by a barrier of impermeable material, or 

until it discharges into a body of surface water. 

The ground water discharged into streams is a 

substantial component of the total stream 

runoff; it constitutes the sustaining or ba~ flow 

of most perennial streams and is conspi~uous 

during periods when there is no precipitation 

and no storm runoff. 
The water that is rejected or ejected by the 

subterranean storage facilities of the lithosphere 

becomes surface runoff. Permeable materials in 

the path of this runoff may permit infiltration 

of some or all of the water. This is true of runoff 

in all drainageways of all sizes, from minor 

gullies to large rivers; wherever physical 

conditions are favorable, water is absorbed into 

the bed and banks. Thus, some surface water 

becomes subterranean water: in many places, 

such as in the Western United States, streams 

contribute significant recharge to ground water. 

The surface runoff to the oceans is composed 

of waters that may have had a great variety of 

vicissitudes on the lands. Some of these waters 

may be direct runoff from rainfall only a few 

hours or days earlier or from snowfall several 

months earlier. Some may have been surface 

water at all times but have been retained for 

months or years by storage in swamps, lakes, or 

reservoirs. Some may have been subterranean 

water for a very short period before reappearing 

in a stream. Some may have been in 

ground-water reservoirs for many years and then 

reappeared as springs or as more diffused base 

flow in streams. In the water discharged to the 

oceans, the bulk of the dissolved material has 

been picked up during the subterranean phases 

of the hydrologic cycle, and the floating and 

suspended solids are transported in the turbulent 

flow of surface water. 

In sum, the water that falls as precipitation 

upon the lands may become subterranean water 

by infiltration and then move downward by 

percolation and laterally by laminar flow as 

ground water; or it may move over the land 

surface, chiefly by turbulent flow; or it may 

alternate between surface and subsurface water 

during its earthly cycle. In this movement there 

are numerous delays that result in accumulation 

or storage of water. Wherever the water is within 

reach of the atmosphere, or within reach of 

plant roots, it may return to the atmosphere by 

evapotranspiration and thus fail to reach the 

ocean. The "work" performed by water during 

this cycle has been described in an earlier paper 

(Thomas, 1965). 

4 

In addition to the replenishal'~~ resources, 

there are fresh-water accumulations 

underground from bygone years o:oo centuries of 

precipitation, which in the aggregate have a far 

larger v o 1 u me than could be reple~ished by the 

annual precipitation and infiltrrtion (Nace, 

1964). These stock resources of ground water 

are estimated to aggregate about C .6 percent of 

the total water on earth. 

HUMID REGIONS AND ARID REGIONS 

The pattern of average annual precipitation, 

based on records available from thousands of 

localities for more than 30 years and from 

several towns for more than a certury, reflects 

the composite effect of the nany factors 

responsible for precipitation. In the United 

States, the range is from less than~() millimeters 

(2 inches) in Death Valley, Calif., to more than 

11.7 meters (460 inches) on Mourt Waialeale in 

Kauai, Hawaii. But, as pointed out by 

Thornthwaite ( 1948), we cannot tell whether a 

eli rna te is moist or dry by knowing the 

precipitation alone. Tucson, Ariz., with average 

annual rainfall of 275 millimeter"' (II inches) 

has a drier climate than Barrow, Alaska, where 

the average annual precipitation is only 110 

millimeters ( 4¥2 inches). We must know whether 

precipitation is greater than the amount that can 

be pulled back to the atmospl'~re by solar 

energy, thus creating a surplus, or less than the 

amount that the solar energy cou11 evaporate if 

the water were available. Desert vegetation is 

sparse and uses little water bec~use water is 

deficient. When water supply rises, as in a desert 

irrigation project, evapotranspirat~'Jn rises to a 

maximum that depends only on the climate: 

This is called potential evapotra~,~piration, as 

distinct from actual evapotranspiration. 

According to Thornthwaite's maps, the climate 

of the 31 Eastern States is mo~st or humid, 

although there are summer defic'~ncies in the 

Southern States; the six Plains States are 

generally in the subhumid-semir~id category, 

where average precipitation Pld potential 

evapotranspiration are nearly the same; the 11 

conterminous States farther west are 

characteristically semiarid or arid, except for the 
humid mountain ranges, and most of the ranges 

have a summer water deficiency. Generally the 

potential evapotranspiration is greatest in the 

tropics and least in polar regions. Because of its 

minimum solar radiation and minimum 

evaporation, Antarctica is a region of water 

surplus as ice, even though the average annual 

precipitation is only ISO millimeters ( 6 inches) 

(Bentley, 1964, p. 383), less than in many parts 

of the arid Southwest. This surplus is returned 

to the ocean as icebergs (Shumskiy and others, 

1964, p. 431) at an annual rate equivalent to 

three times the volume of water in Lake Erie. 

The stock resources of water in Antarctica is 1.6 

percent of all the water on earth, and about 

two-thirds of the world's fresh water. 

Humid regions, where average precipitation 

exceeds potential evapotranspiration, are regions 

of water abundance sufficient for vegetation and 

for a perennial surplus that appears as runoff in 

streams; also, closed depressions fill with water 

to form lakes that overflow. In arid regions, by 

contrast, the moisture requirement of vegetation 

is not satisfied in full, closed depressions may be 

occupied by temporary or saline lakes that do 

not overflow, and water is generally not 

available for overland flow to streams. These are 

areas of perennial water deficiency. 

The averages upon which we base our 

classifications of climate hide very wide 

variations in daily, seasonal, and annual 

precipitation. National extremes, as shown by 

records of the U.S. Weather Bureau, range from 

980 millimeters (38. 7 inches) of rain in 24 hours 

at Yankeetown, Fla., to no measurable rain for 

767 days at Bagdad, Calif. In a given year the 

annual rainfall in a desert community may range 

from 0.1 to 4 or 5 times the longtime average; in 

humid regions the range is less in percentage of 

the mean but greater in amounts of 

precipitation. Chiefly because of the variations 

in precipitation, the areas of water surplus and 

water deficiency enlarge or diminish reciprocally 

from one season to another and from a wet year 

to a dry year. Extreme variations from the 

average precipitation in any region, humid or 

arid, may create exceptional surpluses, 

evidenced in floods, during individual storms or 

5 

individual years, and also exceptional 

deficiencies, evidenced in droughts, ~uring 

periods that may be measured in months or 

years. 

EFFECfS OF MAN UPON NATURAL FWW SYSTr.MS 

Man's uses of water may be consumpt~ve or 

nonconsumptive. In consumptive uses such as 

boiling, perspiring, or growing plants by 

irrigation, the water becomes vapor in the 

atmosphere, as it does in natural 

evapotranspiration processes. In 

nonconsumptive uses such as washing, 

processing, or cooling, the water carries off 

waste and unwanted products: these b~come 

pollutants when the water reenters a natural 

flow system. Man's achievements have been to 

intercept water while it is still fresh and before it 

can return to the atmosphere or ocean, to use it, 

and then to let it go again to atmosph~re or 

ocean. Man's uses of water either reduc.e the 

quantity or impair the quality of the fresh~water 

resources. and many uses do both. 

In addition to these effects of his u<;'~s of 

water, man's activities produce a variety of side 

effects upon the natural flow systemf. The 

modification of these flow systems haf been 

intentional and is essential if people are to have 

suitable water and be protected from r~tural 

excesses or deficiencies. It is true that some 

effects have not been foreseen: for example, the 

dust bowls that followed cultivation of se'lliarid 

grasslands during natural drought. the downward 

cutting of the river channel by the clear water 

discharged below Hoover dam. and recently the 

alewives that reached Lake Michigan by using a 

navigation channel to bypass Niagara Falls; but 

the causes were clear after the event. Increasing 

knowledge of the flow systems makes it 

increasingly possible to predict all the effects. 

including long-delayed effects. of human 

activities upon the systems. Even then, 

untoward effects and even disasters will not be 

eliminated because some are so rare that 

protection against them is uneconomic. but at 

least they will be calculated risks. 
When a dam on a river creates a reservoir, it is 

likely that questions have already been resolved 

as to how much space to reserve for flood 

protection downstream and how much water to 

store for future diversions downstream and for 

recreational use. The sediments are no longer 

carried out to sea; they accumulate instead in 

the reservoir or along the channel upstream. 

Clear water released down the channel from the 

dam is no longer in equilibrium with the channel 

bed and may erode it. Some of the water 

diverted from the reservoir and used for 

irrigation may accumulate as ground water, 

perhaps eventually waterlogging the soil, and it 

may carry dissolved minerals into the irrigated 

so i 1, where they accumulate as the water 

disappears by evapotranspiration. A significant 

proportion of the water stored in the reservoir 

may be lost by evaporation, and the 

concentration of dissolved salts is thereby 

increased. 

The development and use of wells cause 

progressive changes in both the stock resources 

and the flow resources of ground water (Thomas 

and Peterson, 1967). Initially the well causes a 

withdrawal of water from storage, evidenced by 

lowering of water levels in nearby idle wells 

reaching the same aquifer. The depletion of 

storage will continue, in a progressively 

expanding area, until (I) additional water from a 

stream or lake or from rain is induced to enter 

the aquifer, thus making up at least in part for 

further discharge by the well, or (2) the natural 

discharge from the aquifer is reduced by an 

amount equivalent to the withdrawal from the 

well. A well can yield a perennial supply only by 

diminution of flow or of evapotranspiration 

discharge in some other part of the natural 

system, but it may draw upon the stock 

resources for periods ranging up to many years 

before the flow resources are affected. 

Man's occupancy of the land or his 

development of resources other than water 

(Thomas, 1951) sometimes modifies the water 

resource substantially. Changing grasslands and 

forests to cultivated lands may reduce the 

permeability and increase the erodibility of the 

soil; draining of wetlands may lower the water 

6 

table in a broad surrounding area; constructing 

impermeable surfaces in urban areas may reduce 

the natural recharge to ground water; disposing 

of waste waters from mines, oil fields, and 

industrial plants may contaminate usable 

surface-water or ground-water resources; 

constructing navigation channels may make 

aquifers vulnerable to the entry of ~alt water. 

INFLUENCE OF HERED1TY 

The basis of a water right commonly reflects 

in some degree the water enviromr~nt in which 

it originated. In deserts, water is the limiting 

factor in man's occupancy of th~ land: water 

may then constitute the main o~ject of real 

property, the la1 d being of secondary 

importance, so that land titles alone may be 

valueless. Water in humid regions is as essential 

to life and prosperity as in arid regions, but since 

it can more readily be taken for granted, it 

becomes of secondary consideration and 

accessory to the land. 

REGIONS OF WATER ABUNDANCE 

People are likely to be unconr-erned about 

water rights so long as the water supply is more 

than adequate in both quantity an<l quality for 

all needs and yet not enough to c:>use damage. 

Under such circumstances it ha:;o long been 

recognized that water should be available to 

everyone. Justinian, in his Clas<;ification of 

Things (A.D. 534) designated several significant 

parts of the hydrologic cycle as re~ communes, 

incapable of exclusive appropriatior: 

By natural law, these things are common to all: air, 

running water, the sea, and as a cons~quence the 

shores of the sea. 

The use of running waters thro·tgh the ages 

has given rise to frequent disputes. In such 

controversies a distinction has commonly been 

made between streams that are navigable and 

those that are not, reflecting th~ importance 

down through the centuries of water transport 

and commerce. Very generally, mwigable (and 

"floatable") streams or other surface-water 

bodies are regarded as public waters, since they 

are accessible to all, and the waterf are thus res 

communes in the broad sense. Use of such 
waters by individuals is generally permitted, 

provided that there is no interference with or 

hindrance to navigation. 

Nonnavigable streams are not accessible to the 

general public except by easement or trespass 

over the land of the riparian landowners. These 

waters are res communes in the restricted sense 

that they are available only to the community of 

landowners bordering the stream. During the 

Middle Ages such riparian rights were frequently 

in dispute because of stream diversions that 

resulted either in deprivation of the use of water 

or in damage by flooding. There was 

considerable diversity in court decisions in such 

disputes, ranging from a ruling in Scotland in 

1624 that a man owning land upon a stream 

may protect it from diversion by others, 

irrespective of whether or not he was using the 

stream, to a ruling in England in 1831 that the 

person who first appropriates any part of the 

water flowing through his land to his own use 

has permanent right to the use of so much as he 

appropriates (Wiel, 1918). 

Today, although there are many variations in 

detail, there is rather general acceptance in many 

humid regions of the following principles of the 

riparian doctrine in the law of watercourses 

(Tyler v. Wilkinson, 1827; Mason v. Hill, 1833; 

Wood v. Waud, 1849). The use of a stream is 

confined primarily to the riparian owners, 

excluding nonriparian owners or lands, and is so 

confined without preference because of priority 

of use or penalty because of nonuse. The use by 

every riparian must be reasonable (Dumont v. 

Kellogg, 1874). By requiring that uses be for 

"natural purposes" or that each user return the 

flow to the channel, substantially undiminished 

in quantity and unimpaired in quality, this 

doctrine overcomes the advantages that the 

upstream owners would have by natural 

position, and it tends to equate the rights of all 

riparians. 

This general acceptance can be traced chiefly 

to the Code of Napoleon of 1804 whose first 

application in the Eastern United States is 

credited to Justices Story (Tyler v. Wilkinson, 

1827) and Kent (3 Kent Comm., 1828). 

7 

In addition to the running water that 

Justinian set apart as res communes, the waters 

of the earth include ground water, soil water, 

ponds, marshes, lakes, sheet flows from intense 

rains, and snow and ice fields. In humid regions 

these have been rather widely consid o.red as 

appurtenant to the land, under the Roman 

maxim "Cujus est solum ejus est usque ad 

caelum et ad inferos." The French Civ:l Code 

(Art. 552), stemming from Napoleon, s'milarly 

states that the ownership of land includes 

ownership of everything above and be1

ow the 

surface. 

Within the United States the rights to ground 

water inherent in landownership vary from State 

to State. By the "English" or rbsolute 

ownership doctrine (no longer accepted in 

England), the right of each landowner, being 

absolute, is independent of the right~ of all 

others (Acton v. Blundell, 1843; Huber v. 

Merkel, 1903; Houston & Tex. Central Ry., v. 

East, 1904). For England and Wales tha. Water 

Resources Act of 1963 (London, H.M.S.O., July 

1963) created 27 River Authorities that possess 

extensive power relating to regulation cf water 

use, including the licensing of water withdrawals 

from surface- and ground-water sources, the use 

of "charging schemes" under which water users 

will be charged for the water they withdraw, and 

the licensing of all discharges of wr~tes to 

streams or underground strata. The American 

rule of reasonable use recognizes comma n rights 

of landowners overlying a ground-water reservoir 

and protects them against injury by those who 

would waste water unnecessarily or eyport it 

from the area (Basset v. Salisbury Mfg. Co., 

1862). Under the Califomia doct-ine of 

correlative rights, not only must the use be 

reasonable, but the rights of all landowners 

overlying a common reservoir are cor:-elative, 

and where the supply is insufficient for all, each 

is to be accorded a fair and just proportion 

(Katz v. Walkinshaw, 1903; Pasadena v. 

Alhambra, 1949). The resulting situat~'"ln has 

been summarized by Trelease ( 1959): 

The uncertainties that are inherent in these 

court-made rules of ground-water law, ccupled 

with the uncertainties of the court-d~vised 

classification of ground waters into percc fating 
waters, underground streams, and underflow of 

streams (which have no basis in science or in fact) 

leave the water titles of many well owners 

de})endent on physical supplies, the action or 

nonaction of his neighbors, and his ability to grab 

what he can while he can. 

REGIONS OF WATER SCAROTY 

In the extensive desert regions of north 

Africa and southwest Asia, communities of men 

have been of two types: those settled at oases, 

and nomadic tribes dependent upon occasional 

and scattered availability of water and 

vegetation. Many of the principles that govern 

water rights and water use throughout Islam 

today originate in the teachings of the prophet 

Mohammed (A.D. 570-632), and these 

generally accord rights to water on the basis of 

actual use and need (Caponera, 1954). The right 

of thirst is accorded high priority, applied on the 

general Moslem principles of charity and 

kindness to fellow beings. This is a human right, 

like the American "birthright" but of smaller 

dimension. Effective utilization of limited water 

supplies is encouraged in several ways (Thomas, 

1965). Several of the basic concepts of water 

rights in Islam are similar to those in the arid 

Western United States, in which beneficial use is 

the basis, the measure, and the limit of a water 

right; and the frrst in time is the first in right. 

When the Western United States was settled, 

the land suitable for occupancy was generally in 

the valleys, where rainfall was insufficient for 

agriculture (Powell, 1878). The lands receiving 

adequate precipitation are mountainous and 

generally unsuitable for occupancy. Many of the 

settlers therefore chose the most suitable land 

available and appropriated water that had 

originated elsewhere in quantities sufficient for 

their needs. This practice was sanctioned in an 

early decision (Tartar v. Spring Creek Water and 

Min. Co., 1855) of the California Supreme 

Court: 

***a prior appropriation of either (wood or water) 

to steady individual purpose establishes a 

quasi-private proprietorship, which entitles the 

holder to be protected in its quiet enjoyment 

against all the world but the true owner. 

8 

Final acceptance of appropr~~tive rights 

depended upon the "true owner" r~ferred to in 

this decision. By cessions from various countries 

and by voluntary purchase, the United States had 

become the owner, subject to private rights 

already vested, of huge territories, ir~luding land 

and water. The Constitution gives Congress the 

power to dispose of and make all needful rules 

respecting this territory. By legiSlation in 1866 

and 1870, Congress recognized as valid the 

appropriation system that had grown up among 

the occupants of public lands. As owner of the 

public domain, the United States had the power 

to dispose of the land and wrter thereon 

together or separately. Subse1uently the 

Supreme Court (California Oregon Power Co., v. 

Beaver Portland Cement Co., 1935) held that, 

after the Desert Land Act of 1877, if not before, 

all nonnavigable waters of the pub lie domain 

became publici juris, subject to the pler~ry control 

of the designated states, including those since 

created out of the territories named, wfth the right 

in each to determine for itself to what extent the 

rule of appropriation or the common-law rule in 

respect of riparian rights should obtain. For since 

''Congress cannot enforce either rule on any state," 

Kansas v. Colorado, 206 U.S. 46, 94 (1907), the 

full power of choice must remain with the state. 

However, according to the Pelton Dam 

decision (Federal Power Commissio"'- v. Oregon, 

1955) and several subsequent deci:~ions by the 

Supreme Court, the Acts of 186f, 1870, and 

1877 did not constitute intent to surrender all 

rights the United States once had to control the 

use of waters generated by the publh domain. 

RIVERS IN ARID REGIONS 

In several parts of the earth, larg~ rivers flow 

through fertile but arid plains, cor~tituting an 

a bun dance of water in the midst of 

water-deficient lands. To harness t~e rivers for 

use, it has been necessary to create large-scale 

enterprises that usually were oper~ted by the 

government. The emergence of big productive 

water works for irrigation was frequently 

accompanied by the emergence of big protective 

water works for flood control. T~re resulting 

agrarian economy, which Wittfogel ( 1956) has 
called "hydraulic agriculture," required the 

effective cooperation of large numbers of people 

(often unpaid labor exacted by force of law) in 

maintenance of control structures and ditches 

and in the irrigation and intensive cultivation of 

crops. This cooperation required organization in 

depth-planning, record keeping, 

communication, and supervision-and thus a 

massive and permanent bureaucracy and a 

monolithic society. With a minimum of 

labor-saving tools and animals and a maximum 

of human labor, the life of the hydraulic farmer 

was one of unending drudgery. Nevertheless, the 

great hydraulic civilizations of Egypt, India, 

China, and the Near East maintained themselves 

for several thousand years. Wittfogel considers 

that, before the commercial and industrial 

revolution, the majority of all human beings 

lived within the orbit of hydraulic civilization. 

SOME PRODUCI'S OF MIGRATION 

Settlers migrating from Europe to eastern 

North America found a new environment similar 

to the old in water abundance and suitable for 

the concepts of water rights appurtenant to the 

land that are attributed to the Code Napoleon 

and the common law of England. As migration 

proceeded into the arid regions of the West, 

where land was plentiful but worthless unless a 

water supply could be assured, different 

concepts of water rights were developed among 

the Mormons in Utah, the miners in California, 

and homesteaders in all Western territories. 

In California an act of the. State Legislature 

adopting the English common law in 1850 had a 

significant effect upon water development in the 

State (Thomas, 1965). Common law restrictions 

upon the right to store water contributed to 

the slow development of large dams on 

California streams; while much of the spring 

runoff was wasting to the oceans, landowners 

could develop wells without restriction, and 

many of them did so, with resulting overdraft in 

several ground-water basins. Chief Justice Lucien 

Shaw of the California Supreme Court (Shaw, 

1922) has stated: 

The opponents of the doctrine of riparian rights 

had pointed out these results with much emphasis 

9 

and repetition in the political campaign prir>r to 

the decision in Lux v. Haggin and they arr. still 

referred to as evidence that the doctriJTP. is 

contrary to a sound public policy in states h~ving 

the arid climate of California. The obvious ar~er 

on the question of policy is that the obje~tion 

comes too late, that it should have been made to 

the legislature in 1850 prior to the enactme~~ of 

the statute adopting the common law. When that 

was done the riparian rights became vested, and 

thereupon the much more important policy of 

protecting the right of private property be,~ame 

paramount and controlling. This policy is dec•~red 

in our constitutions, has been adhered to 

throughout our national history, and it is thr'lugh 

it that the remarkable progress and developme"'t of 

the country has been possible. 

These problems early in the centur;· gave 

impetus to comprehensive planning for the 

water resources (Bailey, 1927; California 

Division of Water Resources, 193C) and 

eventually to the adoption and financing of the 

California Water Plan (California Divis~~n of 

Water Resources Planning, 1957). Today there 

are about 100,000 irrigation wells in the State 

that yield nearly one-fourth of the total ground 

water withdrawn in the United States, and there 

is still overdraft in some areas. But surplus 

waters are stored for use in time of need, some 

are transported long distances to areas of water 

deficiency, and far less streamflow escaoes to 

the ocean. 

In the Southwest some water right~ have 

originated with grants of land and the rights 

appurtenant thereto made by Spain, Mexico, 

and the Republic of Texas before the United 

States had achieved its present boundaries. In 

determining the rights of holders of titlft from 

prior sovereigns, the controlling laws ge~erally 

are those in effect when the grants were made, 

and subsequent changes in law commonly 

recognize rights already vested (Hutchins, 1961, 

p. 3-6). Because of these rights traceable to 

former sovereigns, the solution of pr'lperty 

rights can be quite complicated (White and 

Wilson, 1955, p. 10). 

To a burgeoning metropolis in the Sout~west, 

one of the most desirable but rare and uncertain 
water rights is the "pueblo" right, which 

constitutes a paramount right to all the water 

needed by a community for its continued 

growth, but is limited to the towns that received 

pueblo grants prior to the Treaty of Guadalupe 

Hidalgo in 1846. This right has been described 

(Hutchins, 1960) as attaching to all the waters 

naturally in the watershed in which the pueblo is 

located: surface water and ground water, 

including tributaries from source to mouth, and 

including flood flows that may be stored. The 

right is perpetual and cannot be lost by nonuse 

or forfeiture. Thus it hangs like a sword of 

Damocles over any other inhabitants of the 

watershed who may be using water or want to 

use it. 

As construed in California the right can 

extend to encompass growth of a city beyond 

the original pueblo limits (Los Angeles v. 

Pomeroy, 1899). Los Angeles claims such a 

pueblo right in the Los Angeles River basin, and 

it was judged superior to that of other riparians, 

such as the city of Glendale (Los Angeles v. 

Glendale, 1943). San Diego also has a pueblo 

right, deemed superior to any appropriative 

rights (San Diego v. Cuyamaca Water Co.,l930). 

Subsequently the pueblo right of the town of 

Las Vegas, N.Mex., was recognized by the Supreme 

Court of New Mexico (Cartwright v. Pub. Serv. 

Co., 1958), and this introduces complications in 

a State where appropriation has been accepted 

as the exclusive basis for water rights. For 

example, what are the water rights of the city of 

Albuquerque, which has a history dating from 

1706, when it was the pueblo of San Felipe de 

Albuquerque, and which is situated astride the 

Rio Grande? Further uncertainty has been 

introduced by a recent Superior Court decision 

in California (Los Angeles v. San Fernando et 

al., 1968). which denies the existence of 

paramount water rights of the pueblo under 

Spanish law and therefore of the city of Los 

Angeles as successor in interest; it then lists all 

parties having mutually prescriptive rights in 

each of four separate ground-water basins 

together with the restricted pumping to which 

they are entitled. This decision is being 

appealed. 

10 

The pueblo right in New Mexico, as in 

California, is based largely on court decisions in 

California, without clear evidence of the intent 

of the former sovereigns (Hutchins, 1960). More 

broadly, the migrations from Spain to Mexico 

and northward may well have influenced the 

local customs and concepts ir California, 

Arizona, New Mexico, and Texas to a degree 

that is not a matter of record or documentation. 

Spain has every climate of th~ Temperate 

Zone, ranging from cold and humict to semiarid 

with hot rainless summers. Aft~r the great 

Moslem invasion of A.D. 711, Spain was subject 

to the teachings of Mohammed, including the 

concepts of water rights developed in arid 

regions. These concepts were espechlly suited to 

the semiarid eastern and southern parts of Spain, 

where Moslem dominance continue-:\ until 1492, 

and where Spain benefited from the 

introduction by the Moors of efficient systems 

of irrigation. In subsequent centuri~s Spain rose 

to a world power, established a col-:>nial empire, 

declined in power, and by the early 19th 

century had lost most of its colonies and been 

part of Napoleon's empire for several years. thus 

falling under the influence of the Code 

Napoleon. 

Spain's colonial empire extended well into the 

boundaries of the present United States, and 

some water rights in community acequias in 

New Mexico and near missions in California date 

from those days. The Commonwealth of Puerto 

Rico shows the Spanish heritage m'Jst clearly in 

its water rights: the Spanish Law of Waters of 

1879 was extended over Puerto Fico in 1886 

and was confirmed with slight amendments in 

1903 after severance from Spain. P'1erto Rico is 

a tropical but not altogether humid island 

which, in the southern area where water use is 

heaviest, is rather like some par~s of Spain. 

There the Spanish Law of Waters has operated 

for 80 years practically without change. The law 

is a clear and concise statement cf the rights, 

limitations, and privileges of individuals and of 

the public in the water resources and is a curious 

blend of humid-region and arid-region concepts 

as well. It recognizes certain rightr inherent in 
landownership: the owner of an estate owns all 

the pluvial waters falling thereon (Art. 1), the 

waters that rise as springs or headwaters of 

streams (Art. 5), the water of lakes and ponds 

on his estate (Art. 17), and the subterranean 

waters obtained by ordinary wells (Art. 18), 

which are defined (Art. 20) as wells dug 

exclusively for domestic use and operated 

manually; these wells may be used without 

restriction, even though the waters of his 

neighbors are diminished thereby. In these and 

several other articles. the Spanish law is in 

accord with the water-rights doctrines of humid 

regions as expressed in the Code Napoleon. 

Incidental to this importation from other humid 

regions, Puerto Rico appears to have more laws 

controlling river navigation than it has river 

navigation (Art. 134-146). 

The Puerto Rican law differs from that in 

most humid regions and is similar to the General 

Theory of Waters in Moslem law, in permitting 

rights to be acquired by actual use of water and 

in protecting those rights against subsequent 

appropriators. For example, any landowner may 

utilize pluvial and other waters flowing 

intermittently in public channels or along roads 

(Art. 6, 176, 177); after use for a year he 

establishes a right superior to that of any 

subsequent user, on the principle that first in 

time is first in right (Art. 7); after use for 20 

years the appropriator acquires the right to 

continue the use "indefinitely" (Art. 8), and the 

owner of the land where these waters originate, 

by failing to utilize them, loses all right to 

interrupt the use by these appropriators (Art. 

11, 14). A landowner has a right only to the 

specific quantity of water he actually uses, but 

this right is valid regardless of fluctuations in the 

source (Art. 1 0). Landowners may appropriate 

large volumes of ground water, provided they do 

not interfere with preexisting rights to public or 

private waters (Art. 23). 

Concessions are granted in Puerto Rico's 

public waters, which include rivers. waters 

flowing through natural beds of perennial and 

intermittent streams, waters originating on 

public lands (Art. 4), and ground water 

underlying public land (Art. 25). The chapter on 

11 

Special Utilization of Public Water~~ (Art. 

147-225 incl.) is similar to the appropriation 

system in the arid Western United States, 

including the requirement for authorization (Art. 

147), and the general policy that 

preference shall be given to the projects of gr~atest 

importance and utility, and if all other cond:tions 

are equal, to those which have first been presP.nted 

(Art. 157). 

Perhaps the greatest weakness of the lav' today 

is the inflexibility incorporated into the details 

concerning preferences in utilization (Ar•. 160), 

which express the needs of a centuary ago, 

when per capita requirements for dome~tic use 

were far less than modern standards. Also, 

concessions for irrigation are granted "in 

perpetuity" (Art. 188), but the ec'Jnomic 

importance of water-using industries v'as not 

foreseen, and much of the present eo'Jnomic 

development is based on a low order of 

preference as to water concessions. 

Although the similarities of the Puerto Rican 

and Western water laws suggest that the 

appropriation doctrine may have consiierable 

Spanish heritage, other influences are strong. The 

Mormons in Utah, miners in Cal~fornia, 

homesteaders throughout the West, the 

Homestead Acts of Congress, the Colorad0 State 

constitution (which adhered to appror,..iation 

doctrine, so that it became known as the 

ucolorado, doctrine), and others are all 

recognized as having contributed to the 

development of the appropriation system. And 

the environment of the West is favorable for 

originating such concepts, adapted to water 

scarcity. 

EFFECTS OF INCREASING WATER USE 

In the United States the aggregate witrdrawal 

use of fresh water in 1965 averaged 270 billion 

U.S. gallons. or about 1 ,000.000.000 cubic 

meters a day, a rate 15 percent greater than in 

1960 (Murray, 1968). The withdrawals are from 

streams. lakes and reservoirs. springs and wells 

and for industrial, irrigation. municipal, 

commercial, domestic, and stockwaterin~ uses. 

These uses have been increasing progressively for 
several decades, along with population and 

economic growth. 

Water rights become of major concern in 

times or places of water shortage. As use of 

water increases in any region, humid or arid, the 

volume of usable water diminishes, and 

shortages may occur. 

Less than 30 percent of the total water 

withdrawn is used consumptively and thus 

returned as vapor to the atmosphere. The 

principal consumptive use is for irrigation. 

Increasing consumptive use is likely to reduce 

the natural resource in times and places of water 

scarcity and thus is likely to cause or aggravate 

water "shortages." 

All the rest of the water withdrawn is used 

nonconsumptively, and is thereafter returned to 

water resources impaired in quality by the 

addition of floating, suspended, or dissolved 

materials or by heat, all of which are undesirable 

to other water users and classed as pollutants. 

The bulk of the manmade pollution in surface 

and ground waters comes from water used 

nonconsumptively under established rights of 

use, and pollution is likely to increase as 

nonconsumptive uses increase. 

INCREASING CONSUMPI'IVE USE 

By reducing the quantity of the resource, 

increasing consumptive use shifts the water 

economy toward lesser abundance or increasing 

deficiency. As a corollary, the concepts of water 

rights developed in environments of abundance 

become less tenable and may suffer in 

comparison with those developed in areas of 

prevailing water deficiency. 

Because of mounting demands for water, 

several Eastern States have examined their water 

policies and laws critically in recent years. The 

Water Policy Committee of South Carolina has 

expressed a typical appraisal of the water 

concepts developed in humid regions (South 

Carolina Water Policy Committee, 1954, p. 30). 

It is only with the overdevelopment of a stream 

or other water supply or its curtailment by drought 

12 

that we realize how outmoded and ineq•,itable our 

water law has become. It is outmoded in that it 

recognizes only "domestic uses" of lSC years ago. 

It is inequitable both to riparian own~rs and the 

people of South Carolina as a whole***a riparian 

owner who early has invested in equipnent to use 

water sees his investment reduced in value as his 

equipment operates at less and less of its capacity. 

As an owner in common he has a valual ~ right; as 

an individual owner he has a right that decreases in 

value as it is used in common. 

As a possible alternative, many States in 

humid regions have considered tb~ concepts 

developed in arid regions, where water scarcity is 

the rule. The appropriation do~trine does 

provide specific, exclusive rights, and therefore 

greater security so long as the supply is available, 

and in times of drought it provides a means of 

curtailing use to match the supply. But the 

axiom "first in time is first in right" seems to 

give a continuing advantage to horry pioneers 

and their successors in interest. Inflexibility is 

suggested also by the U.S. Suprr~e Court's 

definition of appropriation (Arizona v. 

California, 1931): 

To appropriate water means to take a"d divert a 

specific quantity of water therefrom and to put it 

to beneficial use in accordance with the laws of the 

State where such water is found, and l'' so doing 

to acquire a right under such laws, a ves~ed right to 

take and divert from the same source and to use 

and consume the same quantity of wat~r annually 

and forever. 

Another alternative is to develop a statutory 

appropriation system for only a part of the 

water resources, as is done in se"'eral States 

where some waters have been declared by 

statute to be public waters and subject to 

appropriation, although other waters are 

recognized as appurtenant to landov•nership and 

therefore privately owned (Hutchins, 1955a). 

However, this compromise position may become 

untenable because of the continuity of the 

hydrologic cycle. As pointed out by Hutchins 

( 1956, p.9), 

Correlation of rights is not feasible in a State 

which, for example, recognizes- exclusive 

appropriation rights in surface streams. and rights 

of absolute ownership of percolating waters. Even 
if such percolating waters are conclusively proved 

to be physically tributary to a surface stream, the 

stream appropriator obviously can have no legal 

claim on them if they are held to be the absolute 

property of the overlying owner. 

One of the humid States that has long had 

problems of heavy and increasing water use is 

New Jersey. Ranked the eighth largest State in 

population and fifth smallest in area, New 

Jersey's withdrawal use of fresh water is greater 

per unit area than that of any other State. 

Growing water demands and conflicts among 

communities became serious enough by the tum 

of the century to require State action. In 1907 

the State Water Supply Commission was 

established to regulate the division of surface 

water for public supply, and its authority was 

extended in 1910 to cover development of 

ground water. As summarized by McGuinness 

(1963, p. 550): 

Regulatory efforts have always followed the 

principle of equitable allocation among 

inhabitants, rather than among agencies, in 

accordance with prevailing riparian doctrine which 

holds that the water belongs to the people who 

own the land and not to the State. Thus in effect 

the State acts under the police power to protect 

the rights of individuals to use their water. 

Municipalities as such have no right to divert water, 

and control of municipal usage is exercised in the 

interest of equitable apportionment of water 

among people. 

Thus purs!led, the State's policies have gained 

public acceptance, and accordingly the State 

encountered no serious difficulty when, in 1947, it 

assumed control over private uses of ground water 

exceeding 100,000 gpd (U.S. gallons per day) in 

designated areas. The basis for the control is the 

argument that by the time a property owner has 

diverted 100,000 gpd from wells he has exhausted 

the "riparian" rights he possesses under the 

common law. 

INCREASING NONCONSUMPI'IVE USE 

Water used nonconsumptively has been 

withdrawn by the user under established rights 

and may be recycled and reused several times 

before it has served all the user's purposes. 

Eventually the unconsumed water must be 

13 

disposed of, together with any pollutants added 

during the nonconsumptive use. Thus increasing 

nonconsumptive use contributes to the 

increasing pollution of the Nation's rerources. 

These water resources also receive manmade 

pollutants from other sources, washed from the 

atmosphere, or dissolved at the land surface or 

in the soil, or eroded by overland runoff, so that 

they are added either to ground-water or 

surface-water resources, but nonconsumptive use 

is a major source of undesirable pollutants in 

water. 

Water pollution is only one aspect of the 

human pollution problem, which has global 

dimensions and embraces the atmosphere, the 

hydrosphere, and the lithosphere as far down as 

man can reach. Each individual must dis~ose of 

some wastes, whether by indivic'11al or 

community effort. The average per capita daily 

waste load of organic materials fror food 

resources is about 100 grams in sewage rnd 400 

grams in garbage. To this basic load nust be 

added the waste end products of mineral, wood 

and fiber, and other natural resources af•~r use, 

a load that varies from one individual to another 

because it increases with increasing affluence 

and capability to depreciate the "old" and 

purchase the "new." A further load is the 

byproducts of the materials and energy used in 

developing, processing, and maintaining the 

desired products of our natural resources. 

TRENDS IN AMERICAN CULTUPE 

Only a half century ago the country was 

preoccupied with the physical scarcity of 

mineral resources. In succeeding years, the limits 

of economic scarcity have generally been pushed 

back, even though the national appetite for 

resource materials has grown greatly. 

Technological advances are largely resr~:msible 

for this progress, and also for the present 

attitude that the crucial question concerning a 

specific resource material is whether it can be 

extracted and put to use economically enough 

to be competitive with other products suitable 

for the same purposes. As pointed out by 

Landsberg (1964, p. 4), 
The natural resources are as important to the 

nation's survival and welfare as they ever were. 

Land and its products, water, mineral fuels, and 

nonfuel minerals still are the indispensable physical 

stuff that provides the material basis of modern 

civilization. Indeed, in those uses that serve 

recreation and the enjoyment of beauty the 

contributions of land and water are far more than 

material. 

Landsberg summarizes the trends in the U.S. 

economy, as projected to the year 2000: a 

tripling of requirements for both energy and 

metals: almost a tripling for lumber; almost a 

doubling for farm products and for withdrawal 

depletions of fresh water; and no basis for 

estimating other important and fast-growing uses 

of water, such as for recreation and dilution of 

wastes- all to serve a population projected to 

increase at an annual rate of 1.55 percent and to 

have a gross national product that increases 3.8 

percent annually. 

With economic growth and increasing use of 

the natural resources, there are correlative 

increases in the byproducts of developing and 

processing those resources and in the end 

products that result from the various uses of the 

resources. Some of these byproducts and end 

products can be reclaimed or reconstituted or 

otherwise processed so as to be suitable for 

additional use. But eventually practically all of 

them become unwanted materials or wastes, and 

their volume increases in proportion to 

economic growth and the extraction of natural 

resources from the earth. Thus, although there is 

still public concern about scarce resources and 

continuing search for new sources, awareness 

and concern have increased about 

overabundance of unwanted materials: smog, 

polluted waters, junkyards, garbage dumps and 

mine dumps, construction wastes, antiquated 

structures that may become eyesores or slums. 

The individual initiative that was encouraged to 

develop the resources of a new continent has 

been embarrassingly successful: it has provided a 

plenitude of products and created wealth that 

permitted the leisure to contemplate the results. 

But many people view the visual achievements 

of the American culture with less approbation 

than was accorded the Creation in the first 

14 

chapter of Genesis and see the deve~'>pments of 

the past as haphazard and unplanned. The 

desirability of progressive economic growth has 

been challenged by Boulding ( 1966, p. 9-l 0) 

because of this corollary increas~ in waste 

products. 

The problems of waste disposal are 

concentrated especially, as are people and 

processing industries, in urban areas. The 

concentration of population in urb~n areas has 

been accompanied by modifications of the 

physical environment in cities. Citbs generally 

modify the natural land surface and the natural 

pattern of infiltration and runoff f .. om storms 

by construction of impermeable cover an~ 

artificial drains; in some areas there have been 

man-induced landslides, subsidence of the land 

surface, erosion, sedimentatio~, swamps, 

waterlogging, or vulnerability to flood runoff. It 

must be admitted that the physical r.nvironment 

as modified by man poses problems that are 

minor in comparison with the social problems of 

closely packed living, but to hnore such 

problems, as most urbanites and most books on 

urban planning do, is myopic. Clear~y the urban 

environment offers opportunities for research by 

the earth scientist and also for education of 

urban officials and planners in the potentialities 

and limitations of the physical environment. 

These potentialities and limitations are of 

critical importance in a major pro~lem of all 

urban areas: the disposal of the tremendous 

volume of solid, liquid, and gas~ous wastes 

generated by the people and their industries. 

Economic growth with increasing population 

has been accompanied by- or more likely, has 

been possible because of-the increasing 

organization of society. Here the American 

culture follows the trend of the great hydraulic 

civilizations of the past, where the control and 

use of water in large rivers by c'lncentrated 

populations were predicated upon thorough 

organization of all available manpower. From 

individual enterprises comprised of smalJ farms. 

small businesses. family-owned industries, and 

local governments, the American trend has been 

toward big business and big gov~rnment. In 
contrast to the hydraulic civilizations, American 

civilization has been able to move mountains by 

machines and forms of energy other than 

manpower. But economic efficiency has been 

accompanied by concentration of economic 

power in relatively few large corporations and 

by centralization of control in government. 

PUBLIC RIGHTS IN WATER 

Water is one of the resources that have been 

developed largely by individual initiative, and 

individual rights to the use of the water are 

recognized as real property, protected by 

Federal and State constitutional guarantees that 

prohibit the deprivation of property without 

due process of law. There is great variation 

among individuals as to rights to water: some 

may own land to which little or no water is 

appurtenant, or own no land at all; and some 

may have been born too late or too poor to 

acquire a water right by priority of use. Even in 

States that have declared some or all waters 

within their boundaries to belong to the public, 

the historic role of the State has been to 

prescribe conditions under which rights may be 

acquired to use water, to record the rights and 

adjudicate conflicting claims, and to allocate 

water in accordance with rights thus established. 

Increasingly in recent years the States have 

exercised their authority to reject proposed 

developments that are inimical to the public 

interest and to reserve water for future uses 

having public significance. 

What rights in water are recognized as 

"common to all," applicable to each member of 

the mass of population? Although people are 

becoming increasingly aware of the recreational 

value of water in its various natural 

environments, the urban majority of the 

population may indulge its recreational interests 

in water only for a few days each year, or even 

vicariously. Have they any rights in such uses of 

water, or do the rights of others to water for 

consumptive use or for power generation, 

cooling, processing, and waste disposal take 

precedence? 

In recognizing the rights of individuals to use 

water for specific purposes, our society has 

15 

generally not defined the degre.e of 

responsibility of the right-holder for the ~ffects 

of such use upon the water resources. The public 

rights in common have been subordinated to the 

specific rights of individuals. If the indivictual is 

unwilling to assume responsibility for hi~ own 

pollution, it is at least partly because his 

pollutants move downstream or downgradient, 

and thus he does not have to live with them; 

doubtless pollution throughout the rration 

would be substantially reduced if all water users 

were required to discharge their effluents 

upstream from the source of their supplies. 

However, assignment to individuds of 

responsibilities for their pollution of the water 

they use will not be an adequate solution. Every 

man must use some resources and have some 

wastes to dispose of, but he may not have within 

his private property the alternatives of di~posal 

least detrimental to mankind. Inevitably, 

pollution becomes a social problem affecting 

everyone. The Water Quality Act of 194~ and 

amendments in 1956, 1961, and 1965; the Clean 

Water Restoration Act of 1966; the Clern Air 

Act of 1955 and amendments in 1959, 1960, 

1962, 1963, 1965, and 1966; the Air Q•Jality 

Act of 1967; and the Solid Waste Disposal Act 

of 1965 are among the evidences of incr~asing 

public concern and intent to correct abuses of 

specific environment. 

The public rights in common to water a·e not 

specifically mentioned in the U.S. Constit'.ttion, 

and their constitutional protection has been 

developed over the years by increasingly broad 

interpretation (Water Resources Law, 1950). 

One of the early problems arose soon after the 

invention of the steamboat, when private 

interests sought to monopolize navir,ation 

throughout the State of New York. The: U.S. 

Supreme Court (Gibbons v. Ogden, 1824) held 

that under the commerce clause of the 

Constitution the power of Congress 

comprehends navigation within the limits of 

every State in the Union. Congress began 

exercising this power in the River and H~rbor 

Act of 1826, and the extent of this pow~r has 

subsequently been defined as embracing all 

navigable waters as public property (Gilm"n v. 

Philadelphia, 1865), including those suitabl~ for 

use by small boats (United States v. Appala':hian 
Electric Power Co., 1940); it may be invoked 

both as to nonnavigable reaches of a navigable 

waterway and as to its nonnavigable tributaries 

(Oklahoma v. Atkinson, 1941); the commerce 

power also extends to flood control (Jackson v. 

United States, 1913) and to development of 

power (Green Bay & Miss. Canal Co. v. Patton 

Paper Co., 1898;Ashwander v. Tennessee Valley 

Authority, 1936). 

By the property clause of the Constitution, 

Congress has unlimited power over the use of 

the public domain, including the power to 

dispose of land and water thereon together or 

separately (California Oregon Power Co. v. 

Beaver Portland Cement Co., 1935). This clause 

was the constitutional foundation for the 

Reclamation Act of 1902 and for subsequent 

legislation to develop the public domain for the 

public welfare. By the general welfare clause of 

the Constitution, 

Congress has a substantive power to tax and 

appropriate for the general welfare, limited only by 

the requirement that it shall be exercised for the 

common benefit as distinguished from mere local 

purpose. 

As pointed out by the Supreme Court (United 

States v. Gerlack Livestock Co., 1950), this 

power of Congress to promote the general 

welfare through large-scale projects for internal 

improvement is as clear and ample as its power 

to accomplish the same results through resort to 

a strained interpretation of the power over 

navigation. 

Thus over the years the Federal Government 

has used its constitutional powers increasingly to 

promote the public welfare by enhancing the 

benefits in common from the waters of the 

Nation: first as to navigation (Gibbons v. Ogden, 

1824; River and Harbor Act, 1826) and other 

inchannel uses of water (Federal Water Power 

Act, 1920) that would qualify as res communes 

in the Institutes of Justinian; then as to 

protection against water as a common enemy 

causing inundations (Jackson v. United States, 

1913; Act of March 1. 1917; Flood Control Act, 

1923), erosion (National Erosion Control Act, 

1935), and sedimentation (Act of March I, 

1893); and destruction of lives and property; 

then as to reclamation of arid lands by irrigation 

16 

(Reclamation Act, 1902); more re~ently as to 

reduction of pollution (Water Pollution Control 

Act, 1948) and protection of waters for various 

public uses (Taylor Grazing Act, 1934; Water 

Facilities Act, 1937); to comprehen~jve planning 

(River and Harbor Act, 1927; Water Resources 

Planning Act, 1965), development (Tennessee 

Valley Authority Act, 1933; Reclamation 

Project Act, 1939; Flood Control Act, 1944), 

and conservation of water resources to serve 

diverse demands and uses. In this increasing 

promotion of public welfare and assertion of 

public rights in the water, there is increasing 

opportunity for conflict with individual 

property rights in the use of water. 

Conflicts among water users as to their 

respective rights are as old as water scarcity, and 

they have increased as the water users and their 

uses of water have increased, ,~.•herever the 

supply becomes insufficient or unsuitable for all. 

Necessarily the pioneers depended upon separate 

isolated water supplies developed by individual 

effort, but increasing population has trended 

toward group and community action, and as of 

1965 about 152 million people, or 78 percent of 

the total population, were bein~ served by 

public-supply systems (Murray, 1968). Many 

States have encouraged the organization of 

water-utility districts or irrigation districts or 

conservancy or other districts by enabling 

legislation; individual water rights thus become 

pooled, and each shares in the supply. With 

increasing density of population it becomes 

increasingly difficult for an individual to obtain 

his water supply or to dispose of his waste water 

within the confines of his own prorerty. 

Thus the national trends toward big 

government and big business are reflected in the 

current trends in development ar~ use of the 

water resources, whether in c'lmprehensive 

river-basin planning or in the me .. ger of many 

individual rights to form water-uflity districts. 

These approaches can lead to rr0re effective 

management of the resource, rrovided that 

management also has an understan1ing not only 

of the social and legal difficulties that impel this 

solution, but also of the natural flow system and 

its responses to man's actions. 
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Bailey, Paul, 1927, Summary report on the 

water resources of California and a 

coordinated plan for their development: Calif. 

Dept. Public Works, Div. Eng. Irrig. Bull. 12, 

p. 1-49. 

Bentley, C.R., 1964, Structure of Antarctica and 

its ice cover, in Odishaw, Hugh, ed., Research 

in geophysics 2: Cambridge, Mass., MIT Press, 

p. 335-389. 

Boulding, K.E., 1966, The economics of the 

coming spaceship Earth, in Jarrett, Henry, 

ed., Environmental quality in a growing 

economy: Baltimore, Md., Johns Hopkins 

Press, p. 3-14. 

Budyko, M.l., and Kondratiev, K.Y., 1964, Heat 

balance of the earth, in Odishaw, Hugh, ed., 

Research in geophysics 2: Cambridge, Mass., 

MIT Press, p. 529-553. 

California Division of Water Resources, 1930, 

Report to Legislature of 1931 on State water 

plan: California Div. Water Resources Bull. 

25,204 p. 

California Division of Water Resources Planning, 

1957, The California water plan: California 

Dept. Water Resources Bull. 3, 246 p. 

Caponera, D.A., 1954, Water laws in Moslem 

countries: Rome, FAO Development Paper 

43, p. 14-43. 

Hutchins, W.A., 1955a, Trends in the statutory 

law of ground water in the Western States: 

Texas Law Rev., v. 34, p. 157-191. 

-1955b, The New Mexico law of water 

rights: State Engineer Tech. Rept. 4, p. I, 4, 

7, 10. 

-1 9 56, Legal aspects of ground-water 

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Feb. 29, Attachment B, 9 p. 

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Austin, Texas Board Water Engineers, p. 1-6, 

127-151. 

Landsberg, H.H., 1964, Natural resources for 

U.S. growth: Baltimore, Md., Johns Hopkins 

Press, 250 p. 

McGuinness, C.L., 1963, The role of ground 

water in the national water situation: U.S. 

Geol. Survey Water-Supply Paper 1800. p. 5 so. 

17 

Murray, C.R., 1968, Estimated use of wate,.. in 

the United States, 1965: U.S. Geol. Survey 

Circ. 556, 53 p. 

Nace, R.L., 1964, Water of the world: Nat. 

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National Academy of Sciences, 19 66, 

AI ternatives in water management: Jll~tl. 

A cad. Sci.-Natl. Research Council Pub.l A08, 

51 p. 

Piper, A.M., 1965, Has the United States enc~lgh 

water?: U.S. Geol. Survey Water-Supply P;-'per 

1797' 27 p., pl. 2. 

Powell, J .W., 1878, Report on the lands of the 

arid region of the United States, with a more 

detailed account of the lands of Utah: U.S. 

45th Cong., 2d sess .. House Ex. Doc. 73, 195 p. 

Shaw, Lucien, 1922, The development of the 

law of waters in the West: California Law Fev., 

v. 10, p. 455; 189 Cal. 791. 

Shumskiy, P.A., Krenke, A.N., Zotikov, L.A., 

1964, Ice and its changes, in Odishaw, H·t~h, 

ed., Research in geophysics 2: Cambri1ge, 

Mass., MIT Press, p. 425-460. 

South Carolina Water Policy Committee, 1954, 

A new water policy for South Carolina: Rept. 

Gen. Assembly. 4 7 p. 

Thomas, H.E., 1951 ~ Conservation· of grc~Jnd 

water: New York, McGraw-Hill Book Co., p. 

161-212. 

-1965, Water problems: Water Resources 

Res., v. I, no. 3, p. 435-445. 

Thomas, H.E., and Peterson, D.F., Jr., 1967, 

Ground water supply and development, in 

Hagan, R.M., Haise, H.R., and Edmin~ter, 

T.W., eds .. Irrigation of agricultural lands: 

Am. Soc. Agronomy Mon. II, p. 70-91. 

Thornthwaite, C. W .. 1948, An approach to a 

rational classification of climate: Geog. Rev. 

v. 38, p. 55. 

Trelease, F.J., 1959, Desirable revisionr of 

western water law: Western Resources Conf. 

Papers, v. I, University of Colorado, p. 

203--216. 

White, A.A., and Wilson, Will, 1955, The flow 

and underflow of Motl v. Boyd~The 

problem: Southwestern Law Jour., v. 5', p. 

1-26. 

Wiel, S.C., 1 918, Origin and compaPtive 

development of the law of watercourses in the 

common law and in the civil law: California 

Law Rev., v. 6, p. 245. 
Wittfogel, K.A., 1956, The hydraulic 

civilization, in Thomas, W.L., Jr., ed., Man's 

role in changing the face of the earth: Univ. 

Chicago Press, p. 152-164. 

LEGISLATION AND COURT DECISIONS 

Act of March I, 1893 (27 Stat. 507; 33 U.S.C. 

661-685) creating California Debris 

Commission. 

Act of March I, 1 917 (39 Stat. 948) 

appropriating funds for control of floods on 

Mississippi and Sacramento Rivers. 

Acton v.Blundel/, 12M. & W. 324 (1843). 

Arizona v. California, 283 U.S. 423 (1931). 

Ashwander v. Tennessee Valley Authority, 297 

u.s. 288' 330 (1936). 

Basset v. Salisbury Mfg. Co., 43 N.H. 569, 82 

Am. Dec. 179 ( 1862). 

California Oregon Power Co. v. Beaver Portland 

Cement Co., 295 U.S. at 162, 164 (1935). 

Cartwright v. Pub. Serv. Co., 66 N. M. 64, 343 P. 

2d 654 ( 1958). 

Dumont v. Kellogg, 29 Mich. 420, 18 Am. Rep. 

102 (1874). 

Federal Power Commission v. Oregon, 349 U.S. 

435 (1955). 

Federal Water Power Act, June 10, 1920, 41 

Stat. 1063. 

Flood Control Act, March 4, 1923, 42 Stat. 

1505. 

Flood Control Act, December 22, 1944, sec. 1, 

58 Stat. 887. 

Gibbons v. Ogden, 9 Wheat. 1, 1927 (U.S. 

1824). 

Gilman v. Philadelphia, 3 Wall. 713 (U.S. 1865). 

Green Bay & Miss. Canal Co. v. Patton Paper 

Co., 172 U.S. 58 (1898). 

Houston & Tex. Central Ry. v. East, 98 Tex. 

146,81 s.w. 279 (1904). 

Huber v. Merkel, 117 Wis. 355, 363, 94 N.W. 

354 (1903). 

Jackson v. United States, 230 U.S. I. 23 (1913). 

Katz v. Walkinshaw, J 41 Cal. 116, 74 Pac. 766 

(1903). 

Los Angeles v. Glendale, 23 Cal. 2d 68, 142 P. 

2d at 292 (1943). 

Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 

585 (1899). 

18 

Los Angeles v. San Fernando et al., Superior 

Court of Calif. for County of Los Angeles, 

Action No. 650,079, March 19S8. 

Lux v. Haggin, 69 Cal. 255, 4 Pr\.. 919 (1884), 

10 Pac. 674 (1886). 

Mason v. Hill, 5 Barn. Adol. 1, Eng. Rep. 692 

(1833). 

National Erosion Control Act, I oril 27, 1935, 

sec. 1, 49 Stat. 163. 

Oklahoma v.Atkinson, 313 U.S. 508 (1941). 

Pasadena v. Alhambra, 33 Cal. 2c 908, 3, 207 P. 

2d I 7 (1949). 

Reclamation Act, June 17, 1902, 32 Stat. 388, 

43 U.S.C. 391 et seq. 

Reclamation Project Act, Aug. 4, 1939, sec. 

9(a), 53 Stat. 1187, 1193,43 U.S.C. 485 h(a). 

River and Harbor Act, May 20, 1826, 4 Stat. 

175. 

River and Harbor Act, Jan. 21, 1927, sec. 1, 44 

Stat. 1010, 1015 (for H.D. 30E). 

San Diego v. Cuyamaca Water Cc., 209 Cal. 1 OS, 

135, 143, 142 P. 2d at 293-2S'S ( 1930). 

Tartar v. Spring Creek Water a.~~d Min. Co., 5 

Cal. 395 ( 1855). 

Taylor Grazing Act, June 28, 1934, 48 Stat. 

1269, as amended, 43 U.S.C. 315 et seq. 

Tennessee Valley Authority Act, May 18, 1933, 

sec. 1, 48 Stat. 33, as amen--ted, 16 U.S.C. 

831. 

3 Kent Comm., 353-355 ( 1828). 

Tyler v. Wilkinson, 4 Mas. 397, Fed. Cas. No. 

14,312 (1827). 

United States v. Appalachian Electric Power Co., 

311 u.s. 377,416-417 (1940). 

United States v. Gerlach Livestock Co., 339 U.S. 

735, 738 ( 1950). 

Water Facilities Act, Aug. 28, 1937, sec. 1, 50 

Stat. 869, U.S.C. 590r-590x. 

Water Pollution Control Act, Jun~ 30, 1948, sec. 

1, 62 Stat. 1155, as amended, 33 U.S.C. 466 

(Supp. III). 

Water Resources Law, 3 Peport of the 

President's Water Resources Policy 

Commission (Cooke Commission), 1-777 

(1950). 

Water Resources Planning Act, July 22, 1965, 

P.L. 89-80. 

Wood v. Waud, 3 Exch. (Englarrl) 748 (1849). 

it U. S. GOVERNMENT PRINTING OFFICE: 1970 0- 381-542