Interpretation and 

Current Status of 

Ground-Water Rights

GEOLOGICAL SURVEY 

CIRCULAR 432
Interpretation and 

Current Status of 

Ground-Water Rights

By Arthur M. Piper

GEOLOGICAL SURVEY CIRCULAR 432

Washington 1960
United States Department of the Interior

STEWART L. UDALL, Secretary

Geological Survey

WilBam T. Record, Director

First printing 1960 

Second printing 1967

Free on application to the U.S. Geological Survey, Washington, D.C. 20242
Interpretation and Current Status of Ground-Water Rights

By Arthur M. Piper

Prepared for Water Rights Conference, Michigan State University, East Lansing, March 29, 1960.

This paper is concerned with the rights of 

individuals to withdraw water from permeable 

materials beneath the land surface, under the 

basic laws of the States in which they reside. 

It does not concern itself with limited-purpose 

statutes that seek only to prevent or abate 

pollution of naturally fresh waters, or to preclude waste of water; or that require well 

drillers to be licensed, or logs of wells to be 

filed with some administrative agency. Neither 

does it concern itself with certain municipal 

and local regulations that, to some extent, 

limit the freedom of action by individuals within those local jurisdictions.

DOCTRINES OF GROUND-WATER LAW IN RELATION 

TO HYDROLOGIC ENVIRONMENTS

Within the continental United States, the 

rights of individuals to use ground water derive from two contrasting doctrines of law: 

(1) the common-law or English doctrine, under 

the basic premise that the water (unless in 

"underground streams") is the absolute property of the owner of the overlying land, in 

perpetuity; and (2) the doctrine of prior appropriation, whose basic premises are that the 

water is the property of the State or of the 

"public".; that the individual appropriates a 

right to use a specified quantity of the water, 

provided the use is "beneficial"; and that "the 

first in time is the first in right," also in 

perpetuity.

These two general doctrines of groundwater law dominate, respectively, two unlike 

hydrologic environments the common-law 

doctrine in the humid East, and the priorappropriation doctrine in the semiarid or arid 

West [1]. There are, however, notable exceptions to this oversimplified generalization.

The two hydrologic environments adjoin one 

another approximately along the 97th meridian

 that is, roughly from 200 to 400 miles west 

of the Mississippi River.

The 31 States to the east of this hydrologic 

boundary are humid or subhumid. All of these 

States adhere to the common-law doctrine of 

ground-water rights, with variations.

In the humid region, as pointed out by 

Thornthwaite [2], precipitation as a rule is 

greater than the potential evapotranspiration

 that is, greater than the potential rate at 

which the sun can pull water into the atmosphere from free water surfaces and through 

the leaves of vegetation. There, in general, 

precipitation is more than that necessary to 

sustain agriculture, and ordinarily the water 

surplus would more than suffice for the consumptive needs of man and animals in a simple 

agricultural economy. Also, ground-water 

supplies are recharged perennially and in 

relative abundance. In the era of colonization 

and so long as the economy was primarily 

agricultural, ground-water drafts in this region generally were small and scattered, and 

did not interfere seriously one with another. 

Thus, the common-law doctrine of groundwater rights presented few problems. Subsequently, however, in numerous areas of extensive urban and industrial growth many drafts 

on ground water interfered mutually and 

several variants of the common-law doctrine 

were evolved to cope with this. In the current 

urban and industrial "explosion," with its expected great increase in demand for water 

from all potential sources, the common-law 

doctrine may well become widely insufficient. 

The nature of this insufficiency will be discussed later.

The western of the two hydrologic environments comprises the 17 States of the arid or 

semiarid West. There, as a rule, average
precipitation is less than potential evapotranspiration. There, accordingly, the overall 

water supply is perennially insufficient for 

growing crops on all the land otherwise arable. 

Within the region, however, there are scattered areas of perennial water surplus 

chiefly along the north Pacific coast and high 

in the mountain ranges. Principal groundwater supplies are scattered and some are 

recharged intermittently or in small volume.

In this region, much of the water is derived 

from areas that physically are not adapted to 

extensive agriculture or to urban and industrial development; conversely, many areas 

physically adapted to such development are 

poorly watered naturally. Accordingly, the 

common-law doctrine would have posed a 

drastic limit on orderly development and, in 

the pioneer era, the prior-appropriation doctrine evolved in respect to surface waters. 

Subsequently, by case law or by statute, the 

prior-appropriation doctrine has been extended widely to ground waters. California is a 

notable exception. There, most rights to 

ground water are under a variant of the 

common-law doctrine, although appropriative 

rights can be acquired to water that is surplus 

to needs of the owners of overlying land.

COMMON-LAW DOCTRINE

The basic doctrine. Although its roots may be 

traced back many centuries into customs and 

legal principles of Europe, the specific basis 

for the common-law doctrine of ground-water 

rights in the United States usually is cited as 

the case of Acton v. Blundell in England in 

1843 [3]. Its rigid concepts are expressed 

forcefully in a Connecticut decision of 1850, 

an Ohio decision of 1861, and an Illinois decision of 1899:

The laws of its ['percolating" ground water] existence and 

progress * * * cannot be known or regulated. It rises to great 

neights, and moves collaterally, by influences beyond our 

apprehension. These influences are so secret, changeable 

and uncontrollable, we cannot subject them to the regulations of law, nor build upon them a system of rules, as has 

been done with streams upon the surface [4].

The reasoning is briefly this: In the absence of express 

contract, and of poaitive authorized legislation, as between 

proprietors of adjoining land, the law recognizes 00 correlative rights in respect to underground waters percolating, 

oozing or filtrating through the earth; and this mainly from 

considerations of public policy. 1. Because the existence, 

origin, movement and course of such waters, and the causes 

which govern and direct their movements, are so secret, 

occult and concealed that an attempt to administer any set 

of legal rales in respect to them would be, therefore, practically impossible. 2. Because aay such recognition of correlative rights would interfere, to the material detriment of

the common wealth, with drainage and agriculture, mining, 

the construction of highways and railroads, with sanitary 

regulations, building and the general progress of improvement 

in works of embellishment and utility [5].

Water which is the result of natural and ordinary percolation through the soil is part of the land itself, and belongs 

absolutely to the owner of the land, and, in the absence of 

any grant, he may intercept or impede such underground percolations, though the result be to interfere with the source 

of supply of springs or wells on adjoining premises [6].

The strict common-law doctrine applies 

only to "percolating" ground water, not to 

water in a "defined underground stream.* 

(The latter is governed by the companion riparian doctrine of surface watercourses.) In 

general, the common-law doctrine tends to 

foster, rather than restrain, excessive competition for a common ground-water source.

Even under strict application of these 

common-law concepts, the courts commonly 

have granted relief to a user of ground water 

who has been injured by wasteful use or malicious interference on the part of the owner of 

adjoining land. Ziegler [7] concludes that 

such precedent is perhaps no more than an 

expression of abhorrence to the idea of waste 

or malice, rather than an effort to soften the 

basic doctrine.

Principle of reasonable use. An early variant of 

the common law of ground water softens the 

basic doctrine; this variant is the so-called 

American doctrine or principle of reasonable 

use. Its concept is expressed in an early decision by the Supreme Court of New Hampshire to the effect that, as between two neighbors, the right to withdraw "percolating" 

ground water "restricts each to a reasonable 

exercise of his own right, a reasonable use 

of his own property, in view of the similar 

rights of others." The same principle has 

been expressed in other decisions in terms 

such as "reasonable beneficial use," "reasonable economic use," or "best reasonable 

use." Interpreted strictly, the test of "reasonableness" applies primarily to the purpose 

for which ground water is withdrawn, not to 

the quantity of withdrawal. Thus, in earlyapplications this variant of the common-law 

doctrine imposed only a transient restraint 

on those who might first withdraw ground 

water for a purpose other than natural that 

is, for a use beyond sustaining life on the 

overlying lands. However, because "reasonable" becomes in time more or less synonomous with "ordinary,",the mild restraint inherent in this principle fails as soon as a 

substantial number of land owners begin using
water for a common but previously unusual 

use. In the end, like the strict common- law 

doctrine, the principle of reasonable use may 

accelerate rather than prevent competitive 

withdrawal under which the total ground- water 

supply of a given area might in effect be confiscated by a few users.

Principle of correlative rights. A further variant 

of the common- law doctrine evolved in California and Utah. (Subsequently, Utah has enacted a ground- water statute based on the 

doctrine of prior appropriation.) This further 

variant, the principle of correlative rights, 

holds that "the rights of all landowners over 

a common basin, saturated strata, or underground reservoir, are coequal or correlative, 

and that one landowner cannot extract more 

than his share even for use on his own lands 

where the rights of others are injured thereby; 

nor can he claim more than his share on the 

ground of peculiar benefit to him from its 

use."

This principle faces up to the reality that 

ground- water supplies are finite and variable 

in quantity. Under it, in a time of water 

shortage, all the landowners would share the 

shortage proportionately. Apportionment of 

a total supply is reasonably straightforward 

if all the landowners use water for the same 

purpose, as for irrigation. In that situation, 

apportionment by acreage of the several landownerships is feasible. Complexities arise 

if unlike uses of the water are involved.

Regulation of groim&water use under ttte 

doctrine. To cope with excessive competition

for limited supplies of ground water or to 

resolve other troubles, several States adhering to the common- law doctrine have resorted 

to regulation of ground- water use. This is 

done under statutes that invoke the police 

power to assure the "public welfare, safely, 

and health."

New Jersey probably has gone farthest in an 

effort to limit ground- water withdrawals- to 

perennial yield. The scope of its statute is 

indicated by the following quotation:

1. The Division of Water Policy and Supply of the State 

Department of Conservation shall delineate from time to time 

such areas of the State where diversion of subsurface and 

percolating waters exceeds, or threatens to exceed, or otherwise threatens or impairs, the natural replenishment of such 

waters.

2. In areas so delineated by the Division of Water Policy 

and Supply no person, corporation or agency of the public

shall hereafter divert or obtain water from subsurface or percolating sources in excess of one hundred thousand (100,000) 

gallons per day for any purpose unless such person, corporation or agency of the public shall first obtain a permit for 

such withdrawal from the Division of Water Policy and Supply. Such permit may be refused, or if panted, nay include 

such stipulations as may be necessary to conserve the subsurface and percolating waters of the State and ptevest tfeefe 

exhaustion [8].

Under this statute, two "protected areas* 

had been designated as of 1950; one consprised parts of Middlesex and Monmosth 

Counties, the other, parts of Burlington, 

Camden, Gloucester, and Sftiem Coonthss, In 

such areas, control is exercised through a 

system of term licenses that are issued to 

users and that have many of the effects of 

the prior-appropriation doctrine. Licenses 

are renewable if the Division of Water Policy 

and Supply determines that the total water 

supply remains adequate. However, because 

the licenses do not run indefinitely, at least 

one manufacturer declined to locate a new 

plant in the State.

Local regulation of this sort by an executive agency is practiced also in Indiana 

("restricted-sse areas") and New York. The 

New York statute authorizes regulation only 

in four counties on Long Island (mugs, Queens, 

Nassau, and Suffolk Coanties), with the objective of so managing the fresh ground-water 

body as to control the incursion of oceanic 

water. Uses of water for agriculture or for 

standby municipal fire protection, and all 

wells having a capacity not exceeding 45 gallons a minute, are exempted. Limited or revocable permits may be issued to applicants, 

The regulating agency, the Water Resources 

Commission, has general authority to conserve ground-water sources for public - 

supply purposes throughout the State and, as 

need may arise, could request the Legislature to extend specific regulation to areas 

other than Long Island [9].

Texas authorizes groups of water users to 

form conservancy districts "for the conservation, preservation, protection, and re charging and the prevention of waste of the underground water of an underground water reservoir or subdivision thereof* {101. Such Districts are granted broad powers including the 

injunctive procedure "or other appropriate 

remedy in courts of competent jurisdiction* 

to enforce its rules and regulations. This 

procedure has the desirable feature that controls are exercised by the water users for 

their common benefit. Unfortunately, however, certain definitions and provisions of the
enabling legislation are hydrologically unsound.

Iowa in 1957 instituted State-wide regulation of all its waters, surface and ground. 

The basic philosophy appears to be policepower regulation under the common-law 

doctrine, although some aspects of the priorappropriation doctrine are implied in the declaration of policy, which is cited in part 

below.

It is hereby declared that the general welfare of the people 

of the state of Iowa requires that the water resources of the 

State be put to beneficial use to the fullest extent of which 

they are capable, and that the waste or unreasonable use, or 

unreasonable methods of use, of water be prevented * * *

Water occurring in any basin or in any watercourse, or other 

natural body of water of the State, is hereby declared to be 

public waters and public wealth of the people of the state 

of Iowa and subject to use in accordance with the provisions 

of this chapter, and the control and development and use of 

water for all beneficial purposes shall be in the State, which, 

in the exercise of its police powers, shall take such measures as shall effectuate full utilization and protection of the 

water resources of the state of Iowa [11],

In the Iowa procedure, 10-year use permits 

are granted to applicants and these are extendable without public hearing if no objections are voiced. Rights acquired prior to 

enactment of the statute are recognized but 

permits are required for new uses, for increased uses by municipalities if they exceed 100,000 gallons a day or 3 percent of 

the previous daily maximum, and for increased uses by individuals if they exceed 

5,000 gallons a day. So far as the writer is 

informed, the Iowa procedure is the first in 

the United States to impose a State-wide system of term permits. This is the distinctive 

feature of the procedure.

Maryland and Minnesota have enacted 

ground-water statutes and procedures similar to those of Iowa. However, these statutes 

exempt many uses of water and, in effect, are 

neither all-embracing nor limited to specific 

areas of known or incipient overdraft. All 

three of these statutes those of Iowa, Maryland, and Minnesota deviate from the priorappropriation doctrine in that the "first in 

time" is not made the "first in right," unequivocally and in perpetuity.

Limitations of the common-law doctrine. The writer, 

who is a ground-water hydrologist by profession, cannot accept the previously cited 

philosophy of the common-law doctrine of 

ground-water rights that ground-water's behavior is incomprehensible, that it is not

amenable to orderly management under an 

adequate system of laws, and that it is in essence inseparable from the earth materials 

which contain it.

There is an obvious fallacy in the commonlaw doctrine. Specifically, exclusive and unlimited right to use ground water underlying 

specific parcels of land can be real only if 

the water does not move laterally from the 

jurisdiction of one landowner to that of another. Actually, most ground water moves, 

although slowly, just as definitely as the water 

of a stream moves from the jurisdiction of 

one riparian owner to that of another. This 

fallacy was not of serious consequence in the 

environment from which the common-law 

doctrine sprang a humid climate coupled 

with a simple agricultural economy and a 

dispersed population. Under those conditions 

the overall surplus in precipitation ordinarily 

assured that the rather small water-supply 

requirements of all landowners would be met 

in full.

The theoretical right of unlimited water 

use under the common-law doctrine may become imaginary in areas of intensive urban 

or industrial development, or of intensive 

agricultural development through irrigation 

(which is expanding steadily even in the humid East). Even in a humid environment, 

large demands for water at the places of concentrated use may become mutually exclusive 

or may drastically curtail the supply available to outlying areas. That such has occurred already is attested by the regulatory 

statutes in New Jersey and other States, as 

reviewed above. Considering the Nation's 

explosive growth in population and in industry, and the consequent expected great increase in the requirement for water, the 

common-law doctrine of ground-water rights 

may become widely untenable.

Police-power regulation of common-law 

rights might remain acceptable in the Nation's 

best watered areas. There, possibly, the 

available supply is ample for nearly all conceivable uses of water. An applicant would 

have reasonable assurance that a license or 

renewal would issue and that its restrictions, 

if any, would not be onerous. On the other 

hand, in many other areas no such assurance 

could exist. In such areas, uncertain tenure 

in a right to the limited ground-water supply 

might well preclude vigorous and stable economic development.
PRIOR-APPROPRIATION DOCTRINE

Basic concepts. As has been stated, the essence of the prior-appropriation doctrine of 

ground-water rights is that the waters are 

"owned" by the public, that an individual appropriates a right to withdraw water for 

"beneficial" use, and that "the first in time is 

the first in right," in perpetuity. Such is 

the dominant law of the semiarid and arid 

West, in which the doctrine originated.

All ground-water statutes under the priorappropriation doctrine recognize and validate 

"prior vested rights" that may have accrued 

to landowners under the common law. Some 

but not all specifically limit such prior rights 

to the quantity of water used beneficially. 

Nearly all the statutes exempt, from the 

traditional application-and-permit procedure, 

uses of water by individuals for domestic purposes or for watering livestock and small 

uses for any purpose. These exemptions are 

in large part for the convenience of the administering agency, to eliminate pointless 

"paper work"; they are in part a concession 

to the popular feeling that water, an essential 

of life itself, should be "free as air." Commonly they have fostered popular acceptance 

of a comprehensive ground-water statute.

Statutes invoking the doctrine of priorappropriation have been applied to groundwaters in Colorado, Idaho, Kansas, Nevada, 

New Mexico, Oklahoma, Oregon, South Dakota, 

Utah, Washington, and Wyoming. All 11 of 

these States are in the semiarid or arid West. 

Arizona applies the doctrine in declared 

"critical areas," for use of water on newly 

developed lands. In California, the doctrine 

applies to ground waters that maybe surplus 

to the needs of owners of overlying lands and 

that are proposed to be exported beyond the 

basin of origin.

The statutes vary in their treatment of water "ownership." The Idaho statute makes the 

unequivocal statement that ground-waters are 

the 'property of the State." Other jurisdictions declare the waters to be "public waters 

and public wealth of the people of the State," 

to "belong to the public," or tp be "dedicated 

to the use of the people of the State." The essential common point is that the waters and 

the lands are declared to be separate entities, 

with no inherent attachment of one to the 

other.

At least in the public-land States, the legal 

basis for such legislative declarations usually 

has been cited as the Desert Land Act of 

March 1877, which reserved the waters of 

the concerned lands to be disposed of by the 

several States under their respective laws 

and court, procedures. Thus, subsequent issue of a patent, whereby title to the land 

passed from the Federal government to an 

individual, did not of itself convey any title to 

water. The recent decision in the so-called 

Pelton case, in Oregon, rejected this basis 

for public ownership of waters; the situation 

is not yet clarified.

In other States, it is held widely that no 

reasonable basis exists for a legislative declaration separating land and ground water, 

under the principles that the water is the absolute property of the "landowner and that the 

owner cannot be deprived of that property, 

even by legislation, without just compensation. These principles are invoked commonly, 

even though no use is made of the property 

that is, of the water. In adopting its appropriation statute, Kansas sought to resolve 

this issue by providing that a landowner may 

seek redress in the courts for damage he 

may have suffered by limitation of his unused 

common-law right.

All ground-water statutes that invoke the 

prior-appropriation doctrine embody phraseology equivalent to the principle that "beneficial use shall be the basis, the measure and 

the limit of the right to the use of water." 

Essentially all the statutes provide for the 

right to be forfeited to the extent that it may 

not be exercised for some specified number 

of years, commonly from three to five years. 

However, under the principle that an appropriated right to use water is a property of 

the individual, the administering agencies 

commonly have been reluctant to invoke the 

procedures of forfeiture and the courts have 

avoided imposing forfeiture usless the appropriation was notoriously excessive.

The New Mexico statute. As Hutchins has pointed out [12], the New Mexico appropriative 

ground-water statute was the first to be put 

into wide administrative operation, and it has 

established a general pattern for much of the 

subsequent legislation of that sort. That 

statute was enacted first in 1927, was ruled 

invalid owing to technical defects, and was 

replaced by the current statute enacted in
1931 and amended by additions in 1953 [13]. 

Basic provisions of the statute, as quoted below, are noteworthy.

75-11-1. The water of underground streams, channels, 

artesian basins, reservoirs, or lakes, having reasonably 

ascertainable boundaries, are hereby declared to be public 

 waters and to belong to the public and to be subject to appropriation for beneficial use. [Modified by 75-11-9 and 75-11-21, 

below.]

75-11-2. Beneficial use is the basis, the measure, and the 

limit of the right to the use of the [ground] waters.

75-11-9. All underground waters of the State of New Mexico 

.are hereby declared to be public waters and to belong to the 

public of the State of New Mexico and to be subject to appropriation for beneficial use within the State of New Mexico. 

All existing rights to the beneficial use of such waters are 

hereby recognized.

75-11-20. No person shall withdraw water from any underground source in the State of New Mexico for use in any 

other State by drilling a well in New Mexico and transporting the water outside the State or by drilling a well outside 

the boundaries of the State and pumping water from under 

lands lying within the territorial boundaries of the State of 

New Mexico.

75-11-21. No permit and license to appropriate underground 

waters -shall be required except in basins declared by the 

state engineer to have reasonably ascertainable boundaries.

75-11-22. The state engineer and the attorney general or 

the various district attorneys are authorized and directed to 

use any and all legal means necessary to enforce the pro* 

visions of [the act].

An intending appropriator within a designated basin applies to the State Engineer for 

a permit. If no protests are filed, and if the 

State Engineer finds that unappropriated waters exist in the ground-water source designated in the application, or that the proposed 

appropriation would not impair prior rights 

to that source, the State Engineer issues a 

permit to appropriate all or part of the waters applied for, subject to the rights of prior 

appropriators. If protests are filed, the State 

Engineer holds a hearing before granting or 

denying the permit.

In 1950, the New Mexico statute was upheld in a concerted challenge of its constitutionality [14], Two points made by the decision are of particular interest, as summarized in the next two paragraphs.

For the ground-water basin in litigation the 

east, south and west boundaries had been 

demonstrated. A definite north boundary 

could be inferred to exist from geologic and 

other evidence, but could be demonstrated 

precisely only by drilling numerous wells 

needed for no other current purpose. The 

lands of the challengers were within the alcove enclosed by the determined boundaries 

and, between them and the inferred north

boundary, hundreds of operating wells demonstrated clearly that the basin was continuous. The court construed the statutory requirement of "reasonably ascertainable: 

boundaries" in the sense of "sufficiently ascertainable'' and held that boundaries were 

established sufficiently for the questions at 

issue.

The challengers contended that the waters 

at issue were their absolute property, they 

being the owners of the overlying land (invoking the principle of the common-law doctrine). The court held, however, that the 

Desert Land Act of 1877 had reserved thosewaters for disposition by the State. This is 

a specific example of a point made previously 

in general terms.

The Oregon statue. In Oregon, an appropriative ground-water statute was enacted first 

in 1927, to cover only the semiarid and arid 

parts of the State. In 1955, that first statute 

was extensively amended to cope with prospective water-supply problems, and its 

coverage was extended over all the State. 

This amended code [15] is of special interest 

in a part of the legislative declaration of policy and in provisions for control of withdrawals in "critical" ground-water areas. 

These are cited below:

537.525 Legislative policy declaration. The Legislative 

Assembly recognizes, declares and finds that the right to 

reasonable control of all water within this state from all 

sources of water supply belongs to the public, and that in 

order to insure the preservation of the public welfare, safety, 

and health it is necessary that ***

(9) Whenever wasteful use of ground water, impairment 

of or interference with existing rights to appropriate surface 

water, declining ground-water levels, interference among 

wells, overdrawing of ground-water supplies or pollution of 

ground water exists or impends, controlled use of the ground 

water concerned be authorized and imposed under voluntary 

joint action by the State Engineer and the ground-water users 

concerned whenever possible, bat by the State Engineer 

under the police power of the State when such vobwtery 

joint action is not taken or is ineffective.

The statute provides for the determination 

of a critical ground-water area by the State 

Engineer on his own motion or, in his discretion, on petition by any ground-water 

claimant or appropriator within the area in 

question. If this procedure is invoked, a public hearing is held, evidence is taken, and 

findings of fact are reached. If the facts are 

found to satisfy criteria specified in the statute, the State Engineer then "shall by order 

declare the area in question to be a critical 

ground-water area." Then:
537.735 (3) The order of the State Engineer may include 

any one or more of the following corrective control provisions:

(a) A provision closing the critical ground-water area to 

any further appropriation of ground water, in which event 

the State Engineer shall thereafter refuse to accept any 

application for a permit to appropriate ground water located 

within such critical area.

(b) A provision determining the permissible total withdrawal of ground water in the critical area each day, month 

or year, and, insofar as may be reasonably done, the State 

Engineer shall apportion such permissible total withdrawal 

among the appropriators holding valid rights to the ground 

water in the critical area in accordance with the relative 

dates of priority of such rights.

(c) A provision accord ing. preference, without reference to 

relative priorities, to withdrawals of ground water in the 

critical area for domestic and livestock purposes first, and 

thereafter other beneficial purposes, including agricultural, 

industrial, municipal other than domestic, and recreational 

purposes, in such order as the State Engineer deems advisable under the circumstances.

(d) A provision reducing the permissible withdrawal of 

ground water by any one or more appropriators or wells in 

the critical area.

(e) Where two or more wells in the critical area are used 

by the same appropriator, a provision adjusting the total permissible withdrawal of ground water by such appropriator, 

or a provision forbidding the use of one or more of such 

wells completely.

(f) A provision requiring the abatement, in whole or in 

part, or the sealing of any well in the critical area responsible for the admission of polluting materials into the groundwater supply or responsible for the progressive impairment 

of the quality of the ground-water supply by dispersing polluting materials that have entered the ground-water supply 

previously.

(g) A provision requiring and specifying a system of rotation of use of ground water in the critical area.

(h) Any one or more provisions making such additional 

requirements as are nec«?ssary to protect the public welfare, 

health and safety in accordance with the intent, purposes 

and requirements of QKS_ 537.505 to 537.795.

The administrative authority and discretion 

granted by the provisions just cited are without precedent undei prior-appropriation statutes. They substantially restrict the philosophy of the prior-appropriation doctrine but 

face up to certain limitations of that doctrine, 

which will be reviewed.

The Oregon statute includes the further 

novel provision that the users of ground water irom a particular basin or reservoir may 

agree voluntarily among themselves on procedures for managing that source consistently 

"with the intent, purposes, and requirements" 

of the code, and in particular for managing a 

potentially critical area. If the State Engineer finds that such an agreement is adequate 

and appropriate, he approves it and thereafter the provisions of the agreement control 

in lieu of formal orders, rules or regulations

by the State Engineer. Such agreements may 

run for some pre-determined term, or may 

be disolved by consent of the parties participating. Also, they will be terminated by 

"order of the State Engineer when he finds, 

after investigation and a public hearing upon 

adequate notice, that the agreement is not 

being substantially complied with by the parties thereto or that changed conditions have 

made the continuance of the agreement a detriment to the public welfare, safety and 

health or contrary in any particular to the 

intent, purposes and requirements of [the 

code]." Under this provision, local waf$r 

problems can be resolved by the persons 

immediately concerned. This is good government to the extent that it is "small" government. It may prove to be one of the most 

effective features of the code, as water users 

become widely informed as to the need for, 

and requirements of water-source management.

Limitations of the appropriation doctrine. When it applies exclusively, the appropriation doctrine affords an obvious and practical mechanism for curtailing the use of water from 

streams or lakes whenever such use overtakes total supply. Adequate records of the 

valid appropriations and of streamflow are 

required, of course, but usually these records 

are available or can be developed. In respect 

to ground water, exclusive application of the 

appropriation doctrine would seem to offer the 

same mechanism for scaling use to supply; in 

actuality, however, the mechanism is far from 

effective. Reasons include the following:

1. When the natural regimen of a groundwater body is changed by withdrawal or other 

act of man, the affects commonly are obscure and develop very slowly.

2. Extensive hydrologic records and investigations are prerequisite to monitoring 

the behavior of a ground-water body under 

use. For few areas and for no State as a 

whole are such records and results of investigation available. Consequently, overdraft 

commonly escapes recognition while it is 

small.

3. Under most existing ground-water 

codes, incipient or actual overdraft would invoke the declaration of a "restricted-use" 

or "critical" area, and the prohibition or 

restriction of additional wells or increased
withdrawals. Such prohibition or restriction 

might be futile; development would be checked, but not necessarily its adverse effects.

4. The causes and effects of ground-water 

overdraft are not reversible immediately or 

fully. Consequently, cutting off withdrawals 

in the reverse order of their priorities of 

appropriation does not assure that the march 

of overdraft will be reversed. Under these 

circumstances, here stated all too briefly, 

responsible officials very commonly are reluctant to invoke statutory provisions for re - 

ducing use of ground water. They may have 

either of two reasonable doubts: that the 

available facts would suffice to sustain them 

against any appeal from an order for reduc - 

tion, or that the statutory procedure would in 

fact recapture the status of the earlier appropriators.

5. Even in a ground-water basin in which 

perennial yield and appropriations for use are 

about equal in total, some further development 

may be feasible. Such is a common feature of 

irrigated areas, in which development tends to 

concentrate around the most productive wells 

and the most fertile lands, where as the less 

fertile lands or the areas of small yield from 

wells remain virtually untouched. For example, in the northern part of theMimbres 

Valley, New Mexico, the ground-water supply 

has been fully appropriated (and possibly 

over-appropriated). In the southern part of 

that basin, however, considerable additional 

draft might be dispersed over an extensive 

area with little or no detriment to prior appropriatorstothe north. Strict application of 

the prior-appropriation doctrine would preclude the potential further development. Dec - 

laration of "critical" or "restricted" subareas 

does not offer a satisfactory solution because 

the boundaries of such subareas would be 

arbitrary, at least in part, and almost certainly would be indefensible in detail. The 

voluntary-agreement procedure of the Oregon 

code offers promise of resolving such dilemmas.

Effectiveness of the prior-appropriation 

doctrine is further and substantially limited 

when, as is generally the case, the groundwater code is administered under a register 

of priorities that is separate and distinct 

from the register of surface-water priorities. 

Combined registers would not be universally 

appropriate, for the reasons given above.

Two instances from New Mexico experience 

are enlightening, as follows [16],

1. Under native conditions, certain large 

springs in the northern part of the Roswell 

basin acted as natural relief valves to a large 

body of artesian water. The flow from these 

springs was quickly appropriated by early 

settlers. Owing to subsequent intensive development of the ground-water supply by 

wells, the artesianhead so decreased that the 

flow from individual spring orifices either 

ceased or diminished greatly. Thus, certain 

holders of the earliest surface-water rights 

in the basin abandoned their developments.

The artesian basin having been developed 

excessively, it was closed to further appropriation by the State Engineer. Under this 

action, however, holders of the depreciated 

surface-water rights were precluded from 

obtaining relief by tapping the ground-water 

body that had sustained those rights under 

natural conditions. In this instance, applicable law treats surface water and ground 

water as though they afforded distinct and 

separable sources of supply. Actually, the 

separation is not real in nature.

2. The Pecos River Compact, which governs 

the allocation of stream waters between New 

Mexico and Texas, provides that: "New Mexico shall not deplete by man's activities the 

flow of the Pecos River at the New MexicoTexas state line below an amount which will 

give to Texas a quantity of water equivalent 

to that available to Texas under the 1947 

condition... In maintaining the flows at the 

New Mexico-Texas state line required by 

this Compact, New Mexico shall in all instances apply the principle of prior appropriation within New Mexico." These two 

provisions might present adelemma like this:

A considerable part of the base flow in the 

Pecos River was derived, under native conditions, from the artesian and unconfined 

ground-water bodies of the Roswell basin. 

The ground-water withdrawals that have been 

cited, however, have greatly diminished this 

base flow, and their ultimate effect on the 

flow of the river will not be evident for many 

years to come. The ultimate effect may be 

so great that the flow at the State line is 

diminished "by man's activities" to less than 

that of 1947. Under these conditions, suspending the junior surface-water appropriations probably would be ineffective because
in large part they do not involve base flow. 

Suspending all ground-water rights that are 

junior to surface-water rights (many of them 

are) would in theory affect the river flow and 

ultimately might satisfy the terms of the 

compact. However, this remedy would take 

effect slowly, would not offer an immediate 

solution, and would be inequitable among the 

ground-water aoDropriators.

GROUND-WATER RIGHTS IN THE FUTURE

It is expected that the use of water in the 

United States will double within 20 to 25 

years primarily in industry, moderately in 

irrigated agriculture, and generally in urban, 

suburban,and rural areas. Owing to the distribution of industry, the prospective burden 

will fall most heavily on the East. Over all 

the Nation, however, the great majority of 

water sources, surface and ground, will of 

necessity be developed for the utmost "benefit" in use. Reuse of water will become 

commonplace.

Water-supply facilities will become progressively more costly and more complex; 

concomitantly, those who develop the facilities 

will want assurance that their investments 

can be recovered within the life of the developments. More and more, the rational 

solution for water-supply stringencies will 

require concerted action by fairly large 

groups of water users making mutual concessions to the common advantage. As the 

stringencies become more numerous and of 

greater geographic reach, the interests to be 

compromised will become more diverse, and 

the nature of the desirable compromise may 

change substantially from one time to another or from one place to another.

Strict adherence to current water-right 

doctrines would create many obstacles to adequate future management of water sources. 

Some sources would go unused or would be 

used at less than capacity, even while others 

were under needless and excessive competition. Slow and cautious as the process will 

be, and should be, the writer feels that substantial changes in water-right doctrine and 

law are inevitable. He believes that the following attitudes are emerging in the areas of 

greatest pressure on water supplies [1,17].

1. The basic premise of the common-law 

doctrine of water rights that an individual

can have exclusive jurisdition over any 

particular amount of water, to be used as he 

sees fit and then discarded is unrealistic.

2. One principle of the prior -appropriation 

doctrine that ownership of all water supplies 

rests in the "public" collectively is a necessary basis for balancing supplies against 

prospective uses. However, other principles 

of the doctrine should be modified appropriations of water should become contingent 

on a use which returns the optimum potential 

advantage to the "public" at that particular 

time and place; and the dogma of "the first 

in time is the first in right, in perpetuity,** 

should be softened to something less than an 

absolute priority without regard to the manner of water use. In other words, the appropriation doctrine should be coupled to the 

police power of the State, to the end of optimum advantage to the general public welfare. 

The ground-water code adopted by Oregon in 

1955, already cited, takes a first step in this 

direction.

3. Water sources and reservoir sites on 

the land surface and water sources and natural reservoirs beneath the land surface will 

come to be managed as a single supply for 

allocation among all needs. For such management, only an agency of the utility or 

improvement-district type, either an arm of 

government or functioning voluntarily under 

governmental license and regulation, seems 

to have the necessary broad competence.

If prospective water-supply needs are to 

be met, the laws of water rights in general 

and of ground-water rights in particular 

should: (1) afford flexibility whereunder the 

Nation as a whole may effectively manage its 

water destiny, under reasonable but adequate 

checks and balances; (2) in defining rights 

as between individuals, prescribe only essential and minimum restrictions; and (3) afford 

to groups of water users all reasonable 

freedom to act concertedly, mutually conceding some part of their individual "rights" 

to their common advantage.

In the writer's current opinion, these criteria can be satisfied most assuredly under 

selected aspects of the prior-appropriation 

doctrine, the police power, and the improvement-district philosophy. However, these 

must be coupled with wide education as to the 

facts about water.
The writer doubts that a single water-right 

statute would be equally and ideally advantageous in all the diverse water-supply environments of the United States in other words, a 

"model" statute seems unattainable. More 

realistically, water-right statutes might adhere to a uniform basic theme, with details 

varied to suit particular environments. Progress to that end will come neither easily nor 

quickly.

REFERENCES

1. Piper,A.M., and Thomas,H.E.,Hydrology and water law What is their future 

Common ground? In Water resources 

and the law: Univ. of Michigan Law 

School, p. 7-24 (1958).

2. Thornthwaite, C. W., An approach toward 

a rational classification of climate. 

Geographic Rev., v. 38, p. 55-94 (1948).

3. Acton v.Bfafxfo»,12 Mees. & W. 324 (1843).

4. Roath v.Dnacoll, 20 Conn. 532 (1880).

5. Fiauer V.frown, 12 OS. 294 (1861).

6. Edwards v.Halfer, 180 111. 99, 54 N. E. 176 

(1899).

7. Ziegler, W. L., Water use under common - 

law doctrines:JnWater resources and 

the. law: Univ. of Michigan Law School, 

p. 77-78 (1958).

8. New Jersey, chap. 375, Laws of 1947.

9. Thompson, J. C., executive engineer, New 

York Water Power and Control Commission: Written communication,!951.

10. Texas Laws, 1949, Underground Water 

Bill, sec. 3c.

11. 57th General Assembly of Iowa,chap. 229, 

sec. 2.

12. Hut chins, W. A., The New Mexico law of 

water rights: State Engineer of New 

Mexico (in cooperation with U.S.Dept. 

Agriculture), 1955.

13. N. Mex. Laws 1931, chap.131: Stats.1953, 

Anns., sees. 75-11-1 to 75-11-2; N. 

Mex. Laws 1953, chap. 64: Stats. 1953, 

Ann., sees. 75-11-19 to 75-11-22.

14. State ex ret. Bliaa v. Dority, 55 N. Mex.12, 225 

Pac.(2d) 1007(1950). Appeal dismissed 

for want of a substantial Federalquestion: Dority v. State of New Mexico ex re/* Bliaa, 

341 U.S. 924 (1951).

15. Oregon Revised Statutes, sees. 537.505 

to 537.795.

16. Bliss, J. H., Administration of the 

ground-water law of New Mexico: Jour. 

Am. Water Works Asso., v. 43, p. 435- 

440 (1951).

17. Piper, A.M., Requirements of a model 

water law: Jour. Am. Water Works 

Assoc., v. 51, p. 1211-1216 (1959).

10

* U.S. GOVERNMENT PRINTING OFFICE : 1967 O Z73-786