GEOLOGICAL SURVEY CIRCULAR 117 

June 1951 

WATER LAW 

WITH SPECIAL REFERENCE TO 

GROUND WATER 

By 

C. L. McGuinness 

Adapted from a Report Prepared for the President's 

Water Resources Policy Commission 
UNITED STATES DEPARTMENT OF THE INTERIOR 

Oscar L. Chapman, Secretary 

GEOLOGICAL SURVEY 

W. E. Wrather, Director 

Washington, D. G 

Free on application to the Geological Survey, Wuhington 25, D. C. 
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WATER LAW, WITH SPECIAL REFERENCE TO GROUND WATER 

By C. L. McGuinness 

CONTENTS 

Introduction •••••••••••••••••••••••••••• Principles of water law ••••••••••••••••• Common-law riparian rights as applied to ground water •••••••••••• The English rule ••••••••••••••• The American rule of 

reasonable use ••.••••••••••••• Th~ California rule or Doctrine 

of correlative rights •••••••••••••• The doctrine of prior appropriation. 

Problems •••••••••••••••..••••••.•••••••• To what kind of water shall the 

law apply? ••••••••••••••••••••••••• What principle of law shall be 

followed? ••••••••.•••.••••••••••••• Authority for enactment of laws ••••• Allocation of water among States •••• Ownership of unappropriated waters on the public domain ••.•••..••••••• Rights to use of "diffused surface 

waters" ••.•..•••••••.•••.• •• •. • • • • • Priority of rights to use of 

interconnected surface and 

ground water •••••••••••••••.••••••• 

INTRODUCTION 

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This report was prepared in July 1950 at 

the request of the President's Water Resour- ces Polici Commission. It followed the report entitled Water facts in relation to a national water-resources policy," which, in 

part, has been published as Geological Survey 

Circular 114 under the title "The water situation in the United States, with special . reference to ground water.'' 

The only changes made in preparing this 

report for publication as a circular were revision of the sections on Idaho., Indiana, 

Massachusetts, Montana, New Mexico, Oregon, 

and Texas, to bring them up to date. 

This report discusses some of the prob- lems in the field of water law and summarizes 

briefly the laws providing for the acquiring, 

of water rights in the different States. 

The need for consideration of the subject is 

brought out in Circular 114. In that report 

it was pointed out that: (1) The use of water 

in the United States is increasing rapidly 

and undoubtedly will continue to do so; 

(2) ground water must meet a large and perhaps an increasing share of our water demands; 

Problems--Continued. 

Protection in means of diversion •• Exc.essive early appropriations 

and channel losses •••••.••••••••• Regulating aquifers of small 

perennial yield •••.••••••.••••••• What is safe or optimum yield? •••• Selection of administrative areas ................... · .... · · • • Preferential uses ••••••••••••••••• To what kind of water does a water 

right attach? •••••••••••••••••••• Proration in time of scarcity ••••• Rights to use of return flow •••••• Regulation to prevent salt-water 

encroachment ••••••••••••••••••••• Restriction of use of water for 

air conditioning ••.•••••••••••••• Legisls."tion to promote maximum 

development ••••••.••••...•••••••• Selected bibliography ••••.•••.•••••••• Appendix: Partial summary of existing 

water law, by States ••••..••••••••••• 

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(3) the full development of the water re- sources of ever more numerous and larger areas will require manipulation of stream 

systems and ground-water reservoirs to protect them from overdevelopment or pollution 

and to increase ~nd maintain their yield of 

water of good quality; and (4) such manipulation, as well as the protection of existing 

rights, requires control of water use by means of hydrologically sound statutes. 

What is a ''hydrologically sound statute"? 

A report so brief as this can hardly give a complete answer, but it can be said that, 

among other things, such statutes would: 

(1) apply the same rule of law to all ground 

water, rather than attempt to distinguish 

between supposedly different kinds of g.round 

water which do not exist in nature; (2) 

further, apply the same rule of law to 

surface water, recognizing the widespread 

interconnection between ground and surface 

water and the necessity of treating the common supply as a whole where such interconnection 

exists; and (3) be as consistent as possible, 

both in principle and in major provisions, from State to State where interstate water 

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2 WATER LAW 

s ources and problems are involved, and provide 

machinery for facilitating settlement of 

interstate disputes by negotiation and compact. 

It is the belief of the Geological Survey 

that the required legal control can be 

achieved most effectively at the State level; 

further, that the restrictions o.n water use should be the minimum consistent with effective control, and that maximum reliance 

should be placed on voluntary cooperation of 

water users based on adequate public information on the hydrology of each area. 

The Geological Survey has no part in the 

enactment and enforcement of water law. It 

acts as an impartial source of basic hydrologic data. However, it has an important 

advisory function, for it is in a position 

to comment on the hydrologic feasibility of 

proposed water laws and thus to contribute 

to their effectiveness. 

The subject of water law is significant 

wherever conflicts have arisen between users of water. Important in the past in many 

parts of the United States, especially in the 

West where water is the chief limiting factor 

in agricultural and industrial development, 

water law is bound to be increasingly 

important everywhere in the future as our water demands increase. The subject of the 

law of watercourses has been discussed at 

length in many excellent reports and papers. 

The subject of ground-water law has not been 

covered so completely; for example, there 

has never been a comprehensive Nation-wide survey of existing ground-water law. 

There has not been time nor is there 

justification for an attempt to cover the 

subject of water law fully in this report. 

Reference will be made to a number of the 

previous reports, to the various principles 

of water law in use in the United States, to some of the obstacles and problems involved 

in the formulation and enforcement of 

effective laws, and to the current water-law 

situation in the various States insofar as information on it is available to the Geological Survey. The discussion will be re- stricted mainly to control of the diversion 

of water. The closely related subjects of 

pollution and flood control, navigation, 

etc., are generally outside the field of the 

Geological Survey, and will be mentioned 

only incidentally. It is obvious that these 

other phases of water management are as i mportant as, and must be coordinated with, 

control of diversion of water. 

The selected bibliography at the end of 

t h is report lists some of the reports and 

papers on water law prepared to date. The 

most comprehensive works, as might be expect- ed, deal with the law of water rights in the 

West, where legal control of water use has 

been developed most highly. Water law in the 

East, with certain important exceptions, is 

i n a relatively early stage of development. 

Ground-water law,though at a considerably 

advanced stage in several Western States, is 

i ncompletely or poorly developed in part of 

t he West and most of the East. However, 

i nterest in the subject and activity in the 

enactment of ground-water laws are mounting 

rapidly throughout the country. 

A few of the outstanding reports and 

papers listed in the bibliography might be 

mentioned specifically. They include Wells 

Hutchins' "Selected problems in the law of 

water rights in the West" (Hutchins, 1942~.1/ 

published by the Department of Agriculture; 

"State water law in the development of the 

West" (National Resources Planning Board, 

1943), prepared by a subcommittee of which 

Hutchins was a member, and based to a con- siderable . extent on his 1942 report cited 

above; Samuel c. Wiel's "Water rights in 

the Western States" (Wiel, 1911) and "Fifty 

years of water .law" ('Wiel, 1936); "Desirable 

principles of State water legislation"(National 

Rec:Ia.mattonAssociation, 1946), prepared by a committee of whiCh Wells Hutchins was chairman; "Water laws in the United States of 

America" (Food and Agriculture Organization 

of the United Nations, Agricultural Development Paper No. 2, March 1950); and treatises 

by Angell. (1877), Baker and Conkling (1930), 

Bingham (1916), Coulson and Forbes (1924), 

Farnham (1904)t Gould (1900), Kinney (1912), 

and Long (1916J. Among the papers, mostly 

relatively brief, specifically concerned with 

ground-water law that have been published in 

recent years are those by Conkling (1937), 

Thompson and Fiedler (1938), Tolman and Stipp 

{1941), McGuinness (1945), the National 

Association of Vertical Turbine Pump Manufacturers (1947), Black (1947), the Illinois 

Legislative Council (1948), Williams (1948), 

and Critchlow (1948) • 

PRINCIPLES OF WATER ~~ 

Two major doctrines of water law have 

been in use in the United States (National 

Resources Planning Board, 1943, P• 5). One 

is the common-law doctrine of riparian rights; 

the other is the doctrine of prior appropriation. The principles of the two doctrines are diametrically opposed to each others. 

A riparian right is based on the ownership 

of land contiguous to a stream. Under a riparian right the owner of land adjacent 

to a stream is entitled to ·use the full 

natural flow, undiminished in quantity and 

unchanged in quality. The next downstream 

riparian owner of course has · the same right. 

As applied to ground water ~ "quasi-riparian" 

right is based on ownership of land over- lying a water-bearing formation. A riparian 

right does not depend upon putting the water 

to use and thus is not lost by nonuse. An 

appropriative ·right is based on appropriation 

and actual use of water that is declared to 

belong to the public; he who is first in 

timehas thebetter right. The right is 

generally limited to water used beneficially, 

and generally it is forfeited if the water 

is allowed to go unused for a specified 

period. 

Before going further it would be well to 

point out that most water law of the past 

has been based on an attempted distinction 

between water of "watercourses"--surface or underground--and so-called underground 

1/See publications in bibliography, 

listed by .author or originating agency and 

date. 

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PRINCIPLES OF WATER LAW 3 

"percolating water." In many States one rule 

of law is applied to surface streams and to 

"underground watercourses," and another to 11 percolating waters. 11 Also, different rules 

of law may be applied to water in "watercourses" and "diffused surface waters" (waters, 

commonly of floods, not occupying defined 

watercourses). To spring waters that are t .h e source of streams are generally applied 

the same rule of law as is applied to water- courses. Water of springs that originates on and does not leave a given property 

generally is held to belong to the property 

owner, unless the rule of prior appropriation is followed and the spring water was appropriated while the property was a part 

of the . nublic domain. These attempted distinction~ among waters of supposedly different types lead to many problems, as will be pointed out later. 

c·ommon-Law Riparian Rights as Applied to 

Ground Water 

The English Rule 

In ita elementary form the doctrine of 

riparian rights to use of the water of a stream was announced in England in 1833 (Mason v. Hill, cited in National Resources Planning 

Board, 1943, p. 5), and, with use of the term 

"riparian," in 1849 in Wood v. Waud (cited 

in Natural Resources Planning Board, 1943, 

p. 5). With specific respect to ground water 

the doctrine was established in England in 

1843, in Acton v. Blundell (cited in 

Thompson and Fiedler, 1938, p. 1061). 

The application of the doctrine to ground 

water is shown well by a quotation from 

Acton v. Blundell: "That the person who owns the surface may dig the.rein, and apply 

all that is there found to his own purposes 

at his free will and pleasure; and that if, 

in the exercise of such right, he intercepts or drains off the water collected from the · underground springs in his neighbor's well, 

this inconvenience to his neighbor fa~ls 

within the description of damnum absque 

injuria, which cannot beco~ ground of an action." 

According to Hutchins (1942, p. 252), 

"the practical arguments for acceptance of 

the English rule for 'percolating waters' were: (1) the source and flow of these 

waters were so unknown that it is impossible 

to formulate any legal rules governing them; 

and (2) the recognition of correlative rights 

(of adjacent landowners) would substantially 

interfere with many important public projects , such as drainage of lands, etc." 

The American Rule of Reasonable Use 

The English rule of unlimited or, as it· 

has been called, unreasonable use (Conkling, 

1936, p. 503) obviously was not suited to 

situations where water uses are competitive, as in the West. Indeed, the first major 

departure from it· in this country was in Ne~ 

Hampshire in 1862, in the case of Basset v. Salisbury Manufacturing Co. (cited; for exam~ 

ple, in Thompson and Fiedler·, 1938, p. 1062), 

when the State Supreme Court ruled that a man's right to use of percolating water on 

his own land is limited by the corresponding 

right of his neighbor, and "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." 

Thus was announced the rule of reasonable use or the American rule, which since has came to be followed in many States for ground 

water where the riparian doctrine is in 

force • 

o/he California Rule or noctrine of 

C_orrelati ve R:lghts 

The rule of reasonable use was modified 

to the so-called California rule or doctrine 

of correlative rights in 1903, in the case · of Katz v. Walkinshaw (cited, for exam~le, 

in Thompson and Fiedler, 1938, p. 1063). 

The California Supreme Court held, in effect, 

that not only must one landowner's use be 

reasonable, in consideration of the similar 

rights of others, but it must be correlated 

with the uses of others in times of shortage: 

"Disputes between overlying landowners 

concerning water for use on the land, to 

which they have an equal right, in cases where the supply is insufficient for all, ~re 

to be settled by giving to each a just and 

fair proportion. And here again we leave 

for future settlement the question as to the 

priority' of rights between such owners who 

begin the use of waters at different times. 

The parties interested in the question are not before us." 

According to Corpus Juris (67 c. J., 

p. 840), the doctrine 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 in his own lands where the rights of others are injured 

thereby; nor can he claim more than his share on any ground of peculiar benefit to him from 

its use ••• (the) owners' share is determined on the basis of 'reasonable use' under the 

circumstances. But 'reasonable use' as here 

used, does not mean, as in other states, a right to take all that is necessary or reasonably beneficial to the owner's lands 

regardless of the needs of other owners, 

but only his reasonable share, if there is 

not enough to supply the needs of all." 

The use is restricted to the lands overlying 

the common supply, · at times when the supply 

is insufficient. vVhen the su pply is sufficient 

and no injury to others results, any amount 

reasonably needed may be taken, for use on lands overlying the common supply or on others • 

The Doctrine of Prior Appropriation 

The doctrine of prior appropriation was developed under arid conditions--in areeswhere 

the water requirement for land suitable for 

irrigation, or for other beneficial uses to 

which water could be put, was in excess of 

the available water supply. With respect· to 

surface water the doctrine goes back to Roman 

times, and it was followed to some extent in 

the Southwest before that area became a part 

of the United States. "However, the appropriative principle in the form in which it 
4 WATER LAW 

is now recognized throughout the West sprang 

from the requirements of a mining region for 

protection in the use of water supplies need~ 

ed to work min:lJlg claims ••• The first in point of time to put the water to a beneficial use, 

without limitation of the place of use to 

riparian land, came to be recognized as the 

first in right, and the right thus recognized and protected was an exclusive right insofar as the quantity of water put to a beneficial use is concerned." (National Resources 

Planning Board, 1943, p. 6). The appropriative principle was recognized by the United 

States Supreme Court in 1874 in the cas~ of 

Atchison v. Peterson; irl. the same year, denying the claims of mining interests that a valid appropriation could be made only for 

mining plrposes, the court extended the principle to appropriations for irr~gation in the ease of Basey v. Gallagher (National Resources 

Planning Boardi 1943, p. 7)• Following the 

enactment, in 866 and 1870, of statutes 

recognizing appropriations of water on the 

public lands, the Congress passed the Desert 

Land Ac~ of March 3, 1877, containing the 

following: "Provided however that the right 

to the use of water by the person so conducting the same, on or to any tract of desert 

land of six hundred and forty acres shall 

depend upon bona fide prior appropriation: 

and such right shall not exceed the amount of 

water actually appropriated, and necessarily used for the purpose of irrigation and re~J.amation: and all surplus water over and 

above such actual appropriation and use, together with the water of all lakes, rive~s and 

other sources of water supply upon the public 

lands and not navigable, shall remain and be 

held free for the appropriation and use of 

the public for irrigation, mining and manu- facturing purposes subject to existing rights." 

The act · named Arizona, California, Idaho, 

Montana, Nevada, New Mexico, North Dakota,. 

Oregon, South Dakota, Utah, Washington, ·and 

Wyoming; Colorado was added by means of an ~mendment in 1891, 

The question as to whether appropriative 

rights could be acquired for use other than on the public lands was treated by the. Supreme Court in 1935 in the case of CaliforniaOregon Power Co, v. Beaver· Portland Cement 

Co., when the Court held that "the Desert 

Lend Act applied to all the public domain in 

the States and Territories named and that it s evered the water from the land and left the 

unappropriated waters of nonnavigable sources open to appro~riation under the laws of the 

several States and Territories, In this case and in other cases the United States Supr«me 

Court has repeatedly recognized the right of 

each State to adopt its own system of water 

law, whether or not public.lands are involved" 

(National Resources Planning Board, 1943, 

P• 8), 

The two most important universally recognized features of an appropriative right are (1) that he who is first in time is first 

in right; in time of scarcity the latar 

appropriatOr! must cease their use in reverse order of priority; and (2) the use must be a beneficial one; no right is acquired to water 

that is not used beneficially. 

. PROBLEMS 

No attempt can be made in this report 

to discuss all the facets of the different 

doctrines of water law, or all the features 

of existing laws. However, some mention can be made of a number of the problems that 

must be considered in the formulation and 

enforcement of a water law. 

To What Jind of Water Shall the LfW Apply? 

One of the most serious problema in 

water law,· and one of the chief stumbling blocks in the enactment of past and--quite p~bably--future legislation, is that there 

is widespread public belief, and recognition 

in existing law, that different kinds of 

wat·er exist to which different rules of law can be applied. Such a belief is only natural, for conflicts over the use of water arose long before the nature and occurrence of water, especially underground water, were well understood. Various decisions have 

referred to surface water in watercourses; 

diffused surface waters; spring waters; subterranean watercourses; artesian waters; 

underflow dependent on surface streams; and 

percolating waters--diffused, tributary to 

springs, supplying surface wells, and just 

plain seepage waters going nowhere in particular (Thompson and Fiedler, 1938, p. 1059), 

Is there any wonder that confusion has developed? 

With respect· to ground water, Thompson 

and Fiedler {1938, p. 1061) state: "We 

believe, as a matter of fact that from a scientific point of view such an elaborate 

classification of ground water is neither 

justified nor necessary. All water in the 

part of the earth known as the zone of 

saturation is purely and simply ground water, 

moving ac.cording to certain well-recognized laws of physics, •• ,,This point of view is in 

contrast to such unscientific descriptions of 'percolating waters' in judicial decisions as the following: 'vagrant wandering drops 

moving by gravity in any and every direction 

along the line of least resistance' .~ ••• and 

'the pl;lysi cal laws governing underground 

water and its subterranean progress being irregular and unknowable with certainty, and 

such water being changeable and uncontrollable in Character subject to secret incomprehensible influencss ••••• •," 

Thus it is appar~t that, to be workable, a ground-water law muet apply to all water 

in the zone of saturation. Further, all 

water law should recognize the . interconnection 

between ground and surface water. In a number of States where existing law is based on the doctrine of prior appropriation, the 

law applies specifically to all water in the zone · of saturation (Id~po, Kansas, Nevada, 

Utah, Washington, and Wybfuj,ng) or to essentially all such water (New Mexic~ and Oregon), 

In Colorado, though 11 percolatlpg water" not 

tributary to a watercourse still might be 

held to be exempt from appropriation, all rec·ant decisions on "percolating water" have 

held it to be subject to appropriation; it seems reasonable to aasume that the do,ctrine 

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AUTHORITY FOR ENACTMENT OF LAWS 

of appropriation applies to essentially all 

ground water in that State. In some other 

States where the appropriation doctrine is 

recognized, however, such as Arizona and 

Oklahoma, there still is an attempt to distinguish between waters of different classes. 

With respect to interconnection between 

surface and ground water, most States that 

have laws based on prior appropriation apply 

them to water of "subsurface watercourses" 

in contact with streams, but some still attempt 

to distinguish "percolating waters". that are not subject to appropriation~ in many cases, 

however, "percolating waters that can be 

proved to be tributa:r, to surface or subsurface "watercourses' are subject to appropriation. 

For successful formulation of water law, 

there is a·great need, in all but a few of 

the States, for recognition of the fundamental facts that water in the underground reservoirs all follows the same physical laws 

and cannot be subdivided successfully; and 

that ground water and surface water are inter-· connected and cannot be treated separately. 

What Principle of Law Shall Be Followed? 

A fundamental problem in formulating a water code is that of deciding which rule of 

law to follow--that of common-law riparian 

rights or that of prior appropriation. The 

rules are diametrically opposed; where they come in conflict one must give way or both 

must be modified. In a number of the Western 

States both rules are followed to some extent; 

though the tendency has been to weaken riparian rights in favor of prior appropriation, the appropriation principle in these States 

and also in States where it is followed 

exclusively has been modified by ever-greater 

stress on reasonable and beneficial use, in 

the light of current conditions. In Califor• 

nia, the leading State in total use of water, 

the rule of riparian rights is still paramount, but even there the right has been limited to 

reasonable and beneficial use and, according 

to a 1928 amendment to the State constitution; a riparian landowner cannot enjoin an appro- priation of water if it cannot be proved to 

injure his riparian right. 

It is the general belief of most members 

of the Geological Survey who have 'given 

thought to the subject that the doctrine of 

prior appropriationhas fewer defects than 

the riparian doctrine and can be made to lead 

to a greater degree of development and greater 

protection of vested rights. However, the 

doctrine admittedly has some important defects and must be modified under· certain 

conditions to meet these objections; in 

certain cases the necessary modification may lead to or n'early to an adoption of the rit>ariari-rights principle. Also, appropriative 

rights can be modified successfully, to prevent waste of water, by laying great stress on the reasonableness of a given use, no matter what its priority, in consideration 

of the public welfare. 

Among those who recommend the rule of 

prior appropriation as the best available 

method of establishing water rights are 

Hutchins (1942) and the National Resburces 

Planning Board (1943). The National Reclamation Association (1946) does not specifically recommend the rule of prior appropriation 

to the exclusion of that of riparian rights, 

but it does so by implication and presents 

detailed recommendations of features that an effective law based on the appropriation 

doctrine must have • 

Authority for Enactment of Laws 

The activities of man on his own proper• 

ty are limited in various ways and to varying 

degrees in the common interest. Thus, a man in the enjoyment of his property rights must 

not infringe unreasonably upon the similar 

rights of his neighbors.- For example, he 

must not maintain a nuisance on his property, nor· a menace to public health, nor build a structure of a type or size outside the 

l1ni1 ts specified by zoning laws. 

So it is with control of water use. A man may be required to carry on his waterusing activities within limits ·set by law, 

but for the establishment of those limits 

there must be ·legal autnori ty. This is 

especially true where it is desired to enact a water~use law based on the principle of 

prior appropriation. That principle assumes that water is not a part of the land on or under which it occurs but, like the air, 

passes from the property of one to that of 

another and, thus, belongs to all the people. 

There is widespread belief that, where 

existing statutes or legal precedent follow 

the English rule or its American modifications, where the right to the use of water 

is a riparian right based on ownership of 

property contiguous to the water, declaration 

of the doctrine of prior appropriation 

would violate the part of the 14th amendment 

to the Constitution which provides that no State shall "deprive any person of life, 

liberty or prop!3rty wi tho1,1t due process of 

law." Nevertheless, decisions of the Supreme 

Court show that there is nothing to prevent a State from declaring the principle of prior 

appropriation, as discussed by Thompson and 

Fiedler. (1938, pp. 1071-1091). For example (p• 1088), they cite the decision in the case of United States v. Rio Grande Irrigation 

Co.: "The unquestioned rule of the common law was that every riparian owner was entitled 

to the continued natural flow of the stream ••• while this is undoubted, ,and the rule obtains 

in those States in the Union which have 

simply adopted the common law, it is also 

true that as to every stream within its 

domain a State may change this common law 

rule and permit the appropriation of the 

flowing water for such purposes as it deems 

wise ••• " Again, in the case of Trenton v. . New Jersey, the Court said: "The diversion 

of water from the sources of supply for the use of the inhabitants of the State is a proper and legitimate function of the State. 

This function may be left to private enterprise, subject to regulation by the State; 

it may be performed directly; or it may be 

delegated to bodies politic created for' 

that purpose, or to the municipalities of 

the State." 
6 WATER LAW 

The constitutions of a number of the 

States, particularly in the West, specifical- ly abrogate the riparian rule and declare 

that water belongs to the public, or that it 

is· available for appropriation. Some others are less definite but contain a phrase that 

has a similar effect. The constitutions of 

several others contain some reference to the 

right of the State to develop or conserve water, or natural resources in general. For 

example, in Ohio the Sta~e constitution declares that 11 l'aws may also be passed to •••• provide for the conservation of the natural resources of the State •••• " The Massachusetts 

constitution as amended states that "the 

conservation, development, and utilization 

of the agricultural, mineral, forest, and 

water and other natural· resources of the 

commonwealth are public uses.;. •• " (Th9mpson and Fiedler, 1938, p. 1081). 

Even where no specific or helpful statement is present in the State constitution,, a declaration that water is subject to control 

may be possible under the police power of the 

State. The law providing for control of use of ground water on Long Island by the New 

Yorlc Water Power and Control· Commission, 

passed in 1933 by the State legislature, 

states: "Facts having been presented by the 

Water Power and Control Commission and the 

United States Geological Survey which indicate that the depletion of underground waters 

under Long Island is such as to threaten the 

adequacy of water supply for domestic consump .. tion of the inhabitants thereof, this enactment is made in the exercise of the police 

power of the State and its purposes general- ly are to protect the public health and pub- lic welfare in conserving the supply of wate~ 

for domestic consumption." In several other 

States the police power was invoked specifi- cally or by implication in the enactment of 

laws providing for' control of wa·ter use. 

Thus, it appears that · if water~use 

statutes are drawn caref~ly, and especially if they are moderate in scope and if" they specifically invoke the police power, there 

is every reason to expect that they would be 

upheld in the State supreme courts. 

Allocation of Water Among States 

Allocation of water of interstate streams: involves a Federal question, in part because 

of the provision 1n .the Federal Constitution 

that the Congress must approve interstate 

compacts. However, the Supreme Court has 

held: "But resort to the judicial remedy is never essential to the adjustment of interstate controversies~ unless the States are unable to agree upon the terms of ~ compact, or Congress ref"uses its consent." {Hinde~lider 

v. La Plata River & Cherry Creek Ditch .Co.; 

cited in Hutchins!. 1942, p. 411.-) Thus, it 

appears that the 3tates are free to make 

compacts regarding the distribution of the 

water of interstate streams, subject to the 

approval of Congress •. . If interstate agreement is not possible, then issues between 

States can be settled only by the Supreme Court. A complicating factor is the question of ownership of unapproprlated waters of 

nonnavigable streams on ·the public domain, 

still unsettled. {See next section.) 

In the case of Hind.erlider v. La Plata 

River & Cherry Creak Ditch Co. the Supreme 

Court established certain prlnciplesi among which are (Hutchins, 1942, pp. 412-4 3): · 

(a) Each State is entitled only to an equitable share of the water of an interstate 

stream, and an adjudica_tion decree in one St_a_te cannot confer water rlghts in excess of, i~s share. 

(b) Adjustment of rights in controversy ~y be made by compact as well as by a suit 

in the Supreme Court; the Court recommends 

the compact method to aveld litigation .. 

(c) Whether made by compact or Supreme Court decision, the apportionment is binding on the citizens of each state and on all claima~ts of water rights. · · 

(d) The apportionment may provide either 

for a · continuous division of water or for 

rotation in use of the stream. 

{e) No clainiant has any right greater 

than the equitableshare to which the State 

is entitled, sothat no claim. can be made 

that a vested right is taken away by appor- tionment, if the compact is otherwise upheld. 

(.f) The ass.ent of Congress to a compact 

does not make the com~act a "treaty or statute 

of the United States. 

Apportionment by compact or court de~ 

cision of water between or _among States on interstate stream.S, even where all the 

States follow the appropriation principle, does not necessarlly involve_ recognition of 

priority of appropriations for: a stream systet1· as a whole (Nebraska v.Wyoming, 325 u.s., 

P• 618). Priorities are judged· in relation 

to others in a given State, and to the amo~nt 

of water available to that State under com- pact at a given time, but the terms of the 

compact may apply the principle of priority between States in whole, in. part, or' not at 

all. That is, ! may have appropriated water 

from a s t"ream in one State in 1900 and B fromthe same stream in the adjacent state in 

1920, · yet under· the terms of a compact be• . . tween the States the relation of the priorities of·A and B to o~hers in their own States 

might be such that B would get water in a dry year when ! wmiid riot. · . 

T.he compact method, which in effect 

bfoeaka up a stream ·system into segments, removes one of the difficulties in adm1n• 

istering ' water rights on a long stream system. 

Assuming that the terms of the compact are such that the total average use of water is 

held within the 11mlt of replenishment, such division of a stream into segments does 

not tend to promote overdevelopment. Under 

certain conditions it may be desirable for a State to provide for breaking up a stream 

system irito segments within its boundaries, as well as bet'!'een States, each segment .havint; 

its own list or priori ties {National ReQ.lama~ 

tion Association, 1946, p. 19)_. Where. 

natural conditions are suCh that an •dvantage 

.. 

.. 
•. 

RIGHTS TO USE OF "DIFFUSED SURFACE WATERS" 7 

would result, it may be desirable to provide 

by interstate compact for joint administration of a single set of priorities in a particular segment that happens to cross a State line. 

Problems of interstate allocation of 

ground water have not been serious so far, 

but they are bound to come to the fore in the 

future as there is increasing development 

of ground water from aquifers that cross State lines. The problem of making compacts 

will be complicated by the necessity of 

determining perennial or opti~urn yield and 

by the fact that withdrawal of water from 

storage delays the overlapping of cones of 

depression spreading out from areas of withdrawal on either side of the line. However, 

if the hydrologic facts are determined with 

the required accuracy, there need be no insuperable difficulties in making interstate compacts for allocation of ground 

water, or of interconnected ground and sur- face water, between States. Though decisions 

of the Supreme Court on the subject of allocation relate to interstate streams, there is no reason to believe that the Court would not 

apply similar reasoning to ground water where 

there is an adequate showing of fact. 

Ownership of Unappropriated Waters on the 

Public Domain 

There haS been considerable dispute over the ownership of unappropriated waters on the public domain. In the case of Nebraska v. Wyoming, involving apportionment of the 

waters of the North Platte River, the United 

States was granted leave to intervene. The 

United States maintained that neither Wyoming nor Nebraska was willing to defend the 

appropriations made by the United States in 

Wyoming for use in Nebraska, that the United 

States is the owner of all unappropriated 

water in the .North Platte River, that the 

title of the United States to su~ water is 

involved, and that the United States is en- titled to have apportioned to it, free from 

the sovereign control of any State, the water 

already appropriated · by it and all the · remaining 

unappropriated water, if any (Hutchins, 1942, 

pp. 423-424). The United States maintained that 

it was not divested of .title to the water by 

creation of the States, regardless of any declarations in the State constitutions that the 

waters within the States belonged to the States or to the public; and that desert-land legislation and the Reclamation Act of 1902 permitted or required the appropriation of water in 

accordance with the laws of the States but, 

though the Reclamation Act directed the Secretary of the Interior to conform to State laws 

in appropriating water, such conformance was a "matter of comity" and was directory, not man- datory (Hutchins, 1942, pp. 425-427). The 

United States maintained that it did not pro• 

pose to interfere with private rights acquired 

under State laws, but wished to determine 

whether the United States is subject to State 

control in the use and distribution of waters 

it has anpropriated. 

The decision of the Supreme Court in 

Nebraska v. Wyoming (325 U. s., pp. 611-616) 

stated that it was not necessary to determine 

the question of ownership of the unEippropriated waters, inasmuch as the water rights 

for the Federal projects depending on the 

North Platte River had been acquired in 

accordance with State laws; the appropriations were made to individual landowners 

under the Reclamation Act and were as definite 

and complete as if obtained by direct cession 

from the Federal Government. "But we do 

not stop to determine what rights to un- appropriated water of the river the United 

States may have. For the water rights on which the North Platte Project and the 

Kendrick Project rest have been obtained in . compliance with State law. Whether they 

might have been obtained by Federal reserva- tion is not important. Nor, as we shall see, 

is it important to the decree to be entered 

in this case that there may be unappropriated 

water to which the United States may in the 

future assert rights thro~h the machinery 

of State law or otherwise.' . 

The · question as to management by the 

Federal Government of water it has appropriated was.held not to be involved in the decision, but the Court said, ··~Je do not suggest 

that where Congress has provided a system of 

regulation for federal projects it must 

give way before an inconsistent state system." 

Rights to Use of r.Diffused Surface Waters" 

''Diffused surface waters" are generally 

defined as · "waters which in their natural 

state occur .on the surface in places other 

than in watercourses of lakes or ponds" · (National Resources Planning Board, 1943, 

p. 60). They are commonly ·waters resulting 

from rainfall or snow melt, floods, or seepage, and typically are temporary bodies of 

water somewhat indefinite and fluctuating in 

size and shape. Rights to the use of such 

waters are difficult to determine because of 

the inherent difficulty in determining 

whether or not they occupy a watercourse or form a lake or pond. They generally gather 

eventually into definite channels and con- tribute to the flow of a stream; once they so gather they are subject to the law of water- courses. Th.ose which have not yet so gathered, however, are treated somewhat differently 

in different States, but even in many appropriation States they have been held to belong 

to the landowner. They are sanewhat similar 

to "percolating" ground waters, in that 

they are held not to occupy a definite 

watercourse,but :nevertheless are truly tributary to watercourseq; however, they are uot as permanent or predictable as . "percolating" 

waters. 

The difficulty in applying a strict rule 

of priority to the use of such waters is 

recognized in the report of the National Re- sources Planning Board (1943, p. 60-65). 

The report, which advocates adoption of the 

appropriation doctrine for water in general, 

recommends "that the owner of land should 

be accorded the right to make some use of 

the waters which are in the process of flowing in a diffused state across his land, 

and the right to control such waters in the 

reasonable use and improvement of his land. 

What are reasonable uses and reasonable 

methods of control will necessarily depend 

upon the facts in each case, in the determi~ 
8 WATER LAW 

ation of which the effect upon rights of use in the lower stream should be given consideration. It is suggested, for example, that 

the landovmer might be permitted so to prepare his land as (1) to protect it from injury, (~) to absorb all rainfall and dirfused · water passing over the land as it will hold, 

and (3) to effect such redistribution of the 

diffused water ror crop production as may be 

feasible; and he might be permitted to capture 

rainfall in small r~servoirs for stock 

watering or for crop production, without 

being required to make an appropriation there- ror. On the other hand, he might be permitted 

to capture and store, ror ruture use, dirfused 

surface waters passing over his land rrom higher lands only ir this will not arrect adversely and substantially the rights or lower · appropriators; and to accomplish this purpos~, 

he would be required to make an appropriation 

for this storage for future use, the priority 

of which would relate to existing priorities on the stream and its sources or supply." 

The report of · the National Reclamation 

Association (1946, p. 56) rollows the same line of thought: 

313. Dirrused surrace waters. The owner of land upon which diffused surrace waters ••• occur may make 

reasonable use of such waters in the . protection or such lands rrom injury 

and in the rurtherance of vegetative 

growth upon them, without making an appropriation or the waters thereror •. 

314. Such water may not be diverted for the irrigation or lands 

other· than those on which they occur, 

except under an appropriation there- ror. 

The question or damage to lower lands by 

diffused surface waters passing onto them 

from higher lands is generally settled by 

holding the owner or the higher lands responsible if the damage is caused by improper 

discharge onto the~lower land of dirrused 

surface water collected by the owner of the 

higher land in an artificial reservoir or channel; but the owner or the higher land is 

not held responsible ir the discharge occurs in the natural course of events, without · intervention of any collection structures, or if it occurs from his collection structures 

but not in an unreasonable or improper way (Nation~l Resources Planning Board, 1943, 

p. 60). 

Priority of Rights to Use of Interconnected 

Surrace and Ground water 

The report "water facts in relation to a national water-resources policy" pointed 

out the extent to which surface and ground 

water are interconnected and interrelated. 

Where ground and surrace water are interconnected, any withdrawal of ground water 

that otherwise would discharge into the 

stream, or any withdrawal that increases the 

rate of seepage from an influent or "losing" stream, eventually results in a depletion of 

stream flow, to the extent that the water · does not return to the aquirer or is not discharged into the stream, and to the extent 

that the withdrawal does not salvage water 

formerly discharged by evapotranspiration. Where the doctrine or prior appropriation is 

recognized and where a withdrawal of ground 

water reduces the flow or a stream to less 

than the amount to Which a prior appropriator 

has a right, the later appropriation generally can be enjoined (Conkling, 1936, p. 510). 

Such situations are potentially very common in the West, where appropriations of surface 

water antedate ground-water appropriations 

in most areas. Yet the interrering groundwater withdrawals may be creating additional. storage space in the &Quifer and may result 

in the salvage or ftrejected recharge" which 

otherwise might be lost as flood rlow; thus 

the ground•water withdrawals may result in an increase in the total useful water yield 

of the basin during most years. But the pum~ 

ing may cause the stream flow to be leas · than normal during the irrigation season, 

when the water is needed; the increase may occur during the w:t nter, when the prior 

appropriator of surface water for irrigation 

may haye no need ror it; in order that he 

may have it when he needs it, storage racilities may have to be constructed. 

It seems rairly well established in the 

water law of the West that a prior appropriator of water rrom a. stream is entitled to 

reasonable protection or his means'of diversion (Hutchins, 1942, pp. 169-173), but not 

to unreasonable protection. Thus, ir he is 

forced to make changes in his method or 

diversion because or the effects o·f a later 

appropriation, whether of surface or of ground 

water, he must do so if he can at·reasonable 

cost; if the cost is unreasonable, the later 

appropriator may be required to pay for such 

changes to the extent that their cost is un- reasonable. · 

In recent cases of planning for inte• 

grated development of stream basins, the 

question generally has been disposed of by 

providing for adequate surrace storage facilities to serve existing surface-water rights, s·o as not to interfere with the phases of . the project providing for an increase in the 

total water yield through increased use or 

wells. However, in places where such integrated project's are not provided. Some 

equitable means must be worked out to protect 

existing rights to a reasonable degree, yet no~ impede the additional development of 

ground water that will ultimately result in . a greater total·yield of water for the basin. 

Protection in Means or.Diversion 

Cases involving the effect of new appropriations of water, mostly surface water, on the means of diversion used by a prior 

appropriator of surface water generally have 

been relatively clear cut; in general the 

courts have not had much difficulty in deciding whether the effect was such as to 

involve a substantial or unreasonable cost to 

the prior appropriator in modifying his means of diversion. 

Four decisions, ·respectively in Arizona, 

California, Colorado, and Idaho, cited by 

Hutchins (1942, pp. 173-176), appear to 

apply the same general rule to ground water; 

tha.t is, that a prior appropriator is entitled 

·' 
• 

EXCESSIVE EARLY APPROPRIATIONS 9 

to continue a reasonable means of diversion 

and to be protected against a substantial or unreasonable increase in his cost of diversion as the result of the inevitable lowering of 

water level caused by new withdrawals. However, full development of the water resources of a basin may require great periodic or permanent lowering of the ground-water levels 

to provide additional underground storage 

space or to induce maximum recharge .and cut 

down waste by evapotranspiration. Under such 

conditions a more liberal interpretation by 

the courts of the terms "reasonable" and "substantial" may be necessary if the maximum use of the ground-water resources is to be 

achieved; otherwise the development may be 

stifled by the requirement that later appropriators must pay for any substantial increase 

in the cost of diversion by prior appropriators. Such a modified interpretation would 

not seem to be unreasonable. · It might be 

based on a determination that, under the 

economic conditions existing in the area, 

other ground-water users are successfully 

lifting their water from depths as ~eat as or greater than the new, lower leve~ from which 

the prior appropriator now finds he ~ust lift 

his water. Under such conditions pumping from 

the older, higher level might be held to be an unreasonable or nonbeneficial use of water, even though pumping from the lower level 

found to be economically feasible in the 

community would increase the prior appropria- tor's cost of diversion substantially. Reasonable, beneficial use of water has come to be an essential element in any water right 

under the appropriation doctrine and under 

the American rule and its California adaptation as well, and no one can acquire a right 

to an unreasonable, nonbeneficial use. Nevada's .ground-water law as amended in 1949 

provides that an appropriative right "must 

allow for a reasonable lowering of the static 

water level at the appropriator's point of 

diversion; and provided, that in determining 

such reasonable lowering of the static water 

level in a particular area, the state engineer 

shall consider the economics of pumping water 

for the general types of crops growing and 

may also consider the effect of water use on the economy of the area in general." 

Note that the factor of economics enters 

strongly into the ground-water picture in re- lation to protection of the means of diversion. Though present in casaR involving 

surface-water diver~ion, this factor has 

been much less important in surface-water 

decisions made to date. In determining what 

is a reasonable means of diversion of ground 

water, a decision is needed as to the economic 

practicability of withdrawal under the conditions that would result if a pending application for a new water right were granted (as, 

for example, under the Nevada law). 

Not only new applications are involved. 

The present rate of pumping from a basin may be already in excess of that which can be 

maintained indefinitely within the economic 

limit of pumping under present economic ' 

conditions, and to bring the pumping within 

the 11 safe 11 or "optimum" yield may require a cutback in pumping, in accordance with 

whatever rule of law is· followed in the State 

concerned. The subject of economics in relation to existing and new apPrlications for 

water rights is treated in 'Desirable princiP,les of State water legislation~ (National 

Reclamation Association, 1946, pp. 12 1 21-22, 

67-68, 72-73). 

Excessive Early Appropriations and 

Channel Losses 

Closely related to the problem of protection of means of diversion is that of 

excessive early appropriations. In many cases appropriations of water were made at a time when methods of use were not as efficient as they are now, and these early appropriations cover supplies substantially greater than would be needed if the most efficient 

practices were followed. Yet the holders of 

the early rights are loath to reduce their use of water for fear that their rights 

will be reduced, so they continue to use quantities of water that not only are not 

needed but may even be harmful, as by caus- ing waterlogging of irrigated land. Generally where cases involving such excessive and 

wasteful use have reached the courts the right 

has been reduced on the basis that waste is 

not a beneficial use and the use must be re- duced to the amount reasonably needed for 

the purpose for which the appropriation was made. However, much more could be done to 

reduce excessive appropriations to the amount 

actually needed to meet the highest standards 

of efficiency common to the area concerned. 

For example, the supreme court of one State 

held "that an acquired right in waters is 

limited to the amount that is reasonably 

necessary for the beneficial purpose for 

which it is diverted," yet, as pointed out 

by the National Resources Planning Board, its 

decision upheld one by a lower court granting the plaintiff the right to use a quantity of 

water greater than could conceivably be used 

beneficially under even the lowest prevailing standards of irrigation practice (Toerger v. Pacific Gas & Electric Co., cited in 

National Resources Planning Board, 1943, 

PP• 42-43) .gj 

A closely related s~bject is that . of 

excessive channel losses. A downstream 

appropriator may be protected from diversions 

by later upstream appropriators even if the 

water they must release for him is largely dissipated by evaporation and seepage from 

the channel before it reaches him. (In the case of seepage from the channel, of course, 

the water may not be "lost," as it may travel 

to some point where it is available for use- ful purposes.) There is a trend toward 

limitation of such rights on the basis that 

the water released at the upstream point must 

reach the downstream prior appropriator's 

diversion works in such quantity as to be 

capable of beneficial use (Hutchins, 1942, 

pp. 306-309). In an Idaho case in 1922 the 

State Supreme Court stated that the appro- ~riator is entitled to a reasonable allowance 

2/ The decision related to a specified number of "miner's inches" during the "irrigating" and "nonirrigating" seasons. The ac- tual amount of water awarded would der.end upon 

which of the various definitions of 'miner's 

inch" was used and upon the length of the 

"irrigating season" assumed; it might be anywhere between 25 and 44 acre-feet per acre per year. 
10 WATER LAW 

for loss in his distribution system after 

diverting the water, but that the estimated 

loss of 50 percent in the case in point was not a reasonable loss (Basinger v. Taylor, 

cited in Hutchins, 1942, p. 308) •. However, so long as the doctrine of prior appropria- tion is followed strictly, it would not seem possible to extend the principle of pTohibit- ing unreasonable losses to a channel loss of 

50 percent between an upstream po~nt where 

water must be released and the diversion 

works of a downstream prior appropriator, so long as the remaining 50 percent is suffi• 

cient to be put to beneficial use. Reduction 

of such losses by legal means is a problem for the future. 

Regulating Aquifers of Small Perennial. Yield 

The difficulty of regulating ground-water use in areas of small recharge and perennial 

yield, such as the High Plains of Texas, is 

mentioned frequently in the report "Water 

facts in relation to a national water•resourc• es policy." · The 'need for regulation of withdrawals to produce the greatest good for the 

longest time is obvious; unfortunately, the 

methods that should be followed in each case are not so obvious. 

In the case of water-table aquifers of 

large st.orage but low perennial yield, the 

principle of prior appropriation may not offer 

the answer. For example, in the High Plains 

of Texas, application of the doctrine to the 

aquifer as a whole would mean that those who 

had first made appropriations aggregating 

roughly 50,000 acre-feet per year (the esti• 

mated rate of repleniShment) would be pro- tected, and all subsequent appropriators 

would have to cease their withdrawals. But 

the wells of those first appropriators could 

not conceivably draw on the water supply of 

the whole aquifer. In order,to do so they would have to be relocated and probably increased greatly in number ·so ··as to be assured 

of a perennial supply of 50,000 acre-feet 

per year. If the wells were spread out over the entire plains area, the stored water 

would gradually be dissipated by natural 

discharge at the edge of the plains. If the 

wells were located at the edge of the plains so as to salvage the natural discharge, the 

stored water in the middle of the plains would remain much as it is now. In either case the vast amount of stored water would 

be lost for useful purposes. If it is decided that "mining" of the stored water is 

econom1cally and socially desirable, then the 

rate of withdrawal must be muCh greater than 

the perennial.yield, 

It would appear that regulation of withdrawal in an area such as the High Plains 

might be done by dividing the region into . . administrative units, insofar as possible on the basis of natural underground boundaries or partial boundaries such as those ., fonned by bedrock ridges, and within such areas by 

such units as counties, townships, and sec- tions. The amounts of stored water in each 

unit would be determined by hydrologic investigation, and an administrative decision 

would be made as to the feasible rate of 

withdrawal of the stored water in that unit, 

Perhaps the doctrine of prior approprfation 

could be followed within a unit of sufficientlysmall size that the wells of the earliest 

users, whose appropriations added up to a total rate · equal to the feasible rate of 

withdrawal, could reasonably be expected to 

tap all the stored water in that unit lying 

above the feastble depth of pumping. SuCh an arrangement would be comparable to 

breaking up a stream system into segments; each with its own list of priorities. Or, 

the State might decide to apply the riparian 

rule to such an e·xtent as to allow each 

landowner to withdraw the water stored beneath his property. Whether eaCh area of 

land would get its share of water of course would depend on whether the water was withdrawn while it was available. If not withdrawn it would ·drain to adjacent lands whera 

wells were ber'ng pumped, as in the case of 

oil and gas, and the benefits of the use of 

the water would accrue to the neighboring lands, 

Tqere would·be numerous difficulties in 

such a procedure, as where the aquifer is 

less permeable beneath one area than beneath 

the neighboring one, though the amount of 

stored water might be as great~ Wells in the 

second area might be able to withdraw the 

stored water quickly and begin to drain water 

from the first before the wells in the first 

l:l.rea could recover all its stored water. 

Whatever .the · method of regulation chosen 

f'or such aquifers, there will be grave difficulties requiring legal, administrative, and 

judicial thinking and action of a high order·. Andi of course, any successful regulation wil require full knowledge of the groundwater conditions 1n each administrative area. The experience of Texas, .which fs considering 

regulation of ground-water withdrawals in 

the High Plains, will be illuminating (see 

section on Texas in appendix) • 

Even more' perplexing problems can be 

expected in the regulation of artesian aqui;.. 

fers, especially the less permeable ones, 

where the withdrawals are distant from the areas of recharge and natural discharge. · · The principle ·of prior appropr1ati'.on ·runs· into 

difficulties similar to those encoUn-tered in 

water-table aquifer·s of the High Pl.S.ins type, 

To protect a prior appropr1ator.might require stopping all the other withdrawals from the · aquifer, and evan then he may not have a · · permanent supply because he may reach the 

limit of feasible pumping depth long before 

his wells have salvaged enougli "rejected 

recharge" or intercepted enough natural discharge to reach stability. The maxi:mum . development of such ·aquifers requires wells near the recharge area; owne~s of wells in 

the areas some distance away may have to 

depend on artesian storage and to be satisfied with a gradually decreasing yield once the limit of pumping lift is reached·. . Perhaps in their case the most that can be done 

is to require the maximum feasible well 

spacing so as to minimize interference be~ 

tween wells and to achieve the most uniform 

possible lowering in head over the larges.t 

area, to tap the maximum amount of artesian 

storage. The same requirement for adequate 

spacing applies of cou.rse to wells nearer the recharge area also. 

• 
.. 

SELECTION OF ADMINISTRATIVE AREAS ·11 

All in all, the problems of' regulating 

ground-water use in aquifers of' low perennial 

yield are among the most difficult with which 

water administrators are faced. 

What is Safe or Optimum Yield? 

Regulation of' water . use to prevent over- development of' an aquifer, or a part of' it, 

involves the determination of' a safe or optimum rate of' withdrawal and the holding 

of' withdrawals to it. This is true whether 

the doctrine of' prior appropriation or that 

of' correlative rights is applied. Such a determination generally is much more dif'f'i._ 

cult for a ground-water reservoir than for a surface stream or reservoir, for it inevitably involves the economic feasibility of' a given means of' withdrawal or a given pumping lift, not only in an aquifer as a whole 

but in different parts of' it. Because of' 

variations in the cost of' withdrawal in re-· lation to the use to which the water is put, 

it is impracticaole or at least very dif'f'i~ 

cult to define by statute the conditions 

determining optimum yield. For exa~ple, a pumping lift of' 100 feet may be feasible for 

all users in a given area, whereas 200 feet 

may be feasible for sane but not for others. 

Yet the perennial yield of' the aquifer may 

be greatly different at the two pumping 

levels. Where should the regulating official 

set the limit of' pumping? 

Again, in most aquifers the distribution 

of wells affects the perennial yield significantly. With a given distribution of wells, an enforced reduction in pumping by cutting 

off the later appropriators (or, under cor- relative rights, by reducing the pumpage of 

all in proportion to the estimated perennial 

yield of the aouifer and to the amount of 

land owned by each user) may not prevent 

local overdevelopment. Reducing the pumpage in one part of an aquifer may not result in an equivalent addition to the supply for 

other wells, either for a long time or, if 

the reduction simply results in an increase 

in the natural discharge from the aquifer, possibly not at all. 

It is apparent that the regulatory offi• 

cial must be given wide latitude in determining the effect of proposed increased 

pumping, or the places where and the amounts 

by which pumping must be reduced to bring 

the withdrawal within the optimum yield; also, 

the extent to which existing rights are · affected by any given change in rates of 

withdrawal, and therefore the extent to which 

compensation may be due the injured parties 

at the expense of those to which the benefits accrue. His judgment, which should be 

supported by adequate hydrologic information; 

should be accorded great weight by the courts, 

which in the end determine the reasonableness or unreasonableness of any action where 

there is dispute (National Reclamation 

Association, 1946, p. 104). 

It should be pointed out that the maximum 

perennial yield of an aquifer can be obtained 

only by depressing the water levels enough 

to reduce natural discharge and induce additional recharge to the maximum practicable 

extent. As the original water levels decline to the ultimate average stage for maxi- mum development, water is removed from 

storage; the average total withdrawal from 

the aquifer during this preliminary · period 

therefore is greater than the permissible 

average for long-term development. There 

must be recognition that such "miningtt of' 

water occurs in the· early stages of' development of any aquifer, and that what is then a safe and necessary rate of withdrawal would 

be excessive if' continued indefinitely, and 

thus must be reduced. Whether the reduction 

should be entirely at the expense of the 

latest appropriators, or shared by all the users on the assumption that those who par- ticipate in enjoying the "cream" should 

share in the inevitable reduction, is another 

problem that the lawmaker must face. 

Selection of Administrative Areas 

One 1ifficulty mentioned above under 

What is safe . or optimum yield? deserves a little more discussion: that of the effect on one · part of an aquifer of a change in 

withdrawal in another.. Where the size or geologic and hydrologic ' propertiea of' a basin are such that a strict application of 

priprities or of correlative rights in reducing withdrawal would result ina net loss of 

water for the basin as a whole, through increased natural loss, it may be necessary to 

subdivide the basin into areas and subareas, 

each with a given allowance of water and a separate set of priorities or correlative 

rights. Determination of the amount of 

water allowed to each a.rea is a difficult 

question; Generally it must be settled by 

negotiation among the holders of water rights 

in the. different areas, resulting in equitable agreements similar to interstate com- pacts. The basis of such an agreement might 

include the size of each area, the amount of 

replenishment in or of water contributed by each area to others, the priority of water 

rights in one area in relation to those in 

anpther, the value of water in one area in 

comparison to that in another, etc. The 

number and size of areas within a basin 

should be subject to change as necessary in 

the light of increasing hydrologic knowledge, which will require equitable adjustment of .water rights, in accordance with whatever 

rule of law is followed. 

Designation of administrative areas and 

determination of the permissible rate of' withdra~al are likely to be comparatively difficult in the humid East, where conflicts 

between water rights have been relatively 

few so far. Western de.sert basins generally form individual hydrologic units that can be conveniently administered as a whole, or broken up into areas and subareas baaed, more or less, on natural hydrologic boundaries, though even here many complex and 

difficult problems of· administration are en- countered. In the East, an aquifer may ex- terid across several dra.inage basins, and 

though the surface- and ground-water divides 

within the area of the aquifer generally 

coincide; there are many places where they . do not, or where they do under natural conditions but do not under conditions of heavy wi thdra.wal from wells. Also, ·in industria 1 areas the kinds "of uses and their relative 
l2 

economic feasibility are likely to be much more varied than those in Western basins, 

where the principal ~e is for irrigation. 

Problems of interference with stream flow 

WATER LAW 

and of the relation of surface-water and 

ground-water rights in the East have not been 

serious so far but are bound to become increasingly important as developments based on induced infiltration increase. Determination of areal and regional water-resources 

potentialities and study of principles of 

law to be followed in the East are needed, 

the sooner the better, in order to avoid the 

development. of tangled water-rights situations 

that will impede the fUll development of 

water needed in the future. 

One of the potentialities thit warrant 

early consideration is the legal effect of 

the increasing practice of supplemental irrigation in the East. This increasing use of 

water will result in much fuller development of the potential water resources of many rural areas in the East where present uses of 

water are so small in relation to total 

supply that few or no questions of interfer- ence have arisen. 

The availability, at least Under conditions of full surface-water development, - of 

surplus surface water that can be used for 

artificial recharge of ground-water reser- voirs is a promising factpr for the fUture in 

the East. In many cases local overdevelopment can be prevented feasibly by artificial 

recharge, at lower net cost to water ~era 

or the community than that of rutting off 

later appropriators or apportioning the 

naturally available supply among many users. Formation of water districts is one means of 

effecting full and economical development of 

the local water resources, including the 

practice of artificial recharge as necessary and feasible. 

Obviously, in the East as in the We-st, 

State regulatory officials will have to be 

given wide latitude, subject to review by the courts as necessary, in determining the areas to be administered and the amount of 

water that can be developed in each. 

Preferential Uses 

Where or when water is limited, · the 

public interest may r~quire that some uses of water be given pr~ference over others 

which, though beneficial in themselves, re- sult in a lower contribution to the general welfare than others. Ordinarily domestic use is given preference, regardless of 

priority. This may be done by a specific declaration in the law exempting use for domestic purposes, including the watering of 

stock or of small gardens. Use ·for public supply may be given similar preference in 

time of shortage, but not necessarily without compensation to holders of otherwise 

superior rightsi and with safeguards to prevent use of pub ic water for low-grade purposes, .such as lawn sprinkling and street 

flushing during periods of shortage. 

Under an appropriative system, and 

excluding domestic use, ·the principle of 

preferential use would be applied by granting 

to all existing or potential appropriators 

the right of eminent domain, whereby they could c.ondemn a right to an inferior use in 

order to make an appropriation for a superior 

use, with just compensation to the holder 

of the prior right. The principle of priority in appropriation could be protected by 

reserving to the holder of the prior right the privilege of changing within a reasonable 

time to a.higher use, equal to or higher than that for whiCh the new appropriator seeks the water, so as to avoid losing his 

right. 

Where prior rights are condemned in 

favor of a new appropriation for a superior 

use, there is a difficult question of deciding how much compe-nsation should be paid the 

holder of the condemned right. The report of the National Reclamat~on Association 

(1946, p. 31) recommends that "no value, in excess of the actual amount paid to the 

State in acquiring the right, shall be claim~4 

f o·r · either_ the inchoate appropriative right or the completed appropriative right with respect to the regulation of r'S.tes or services to be rendered-by the holder of the 

right or his successors,- or with respect to 

any valuati.on for purposes of sale to any . government agency or entity or in any eminent 

domain proceeding •• • 11 This means that, under 

this version of the appropriation doctrine, 

the water is considered public property and 

the holder of a right is entitled to its use only so long as his right' is not con- demned in favor of a superior u·se; his compen- sation is to be limited to his cost in acquir- ing the right, and is not to include the 

value of the water to him as an essential 

ingredient in the enterprise he has built up through use of the water. Such a provision 

may ~eem rather harsh, but where the supply is limited it would insure that the highest possible use would be made of the water. · 

The report of the National Reclamation 

Association (1946, p. 38) gives the following order of superiority: · First, domestic 

and municipal uses; second; irrigation and 

stock-watering uses; third, water-power use; 

fourth,. mining use, and manufacturing -and 

industrial uses that are not implied in an · appropriation for municipal use; and fifth, 

all other uses, without preference as among themselves. The orqer might be made different in an industrial State where there is 

little irrigation; indeed, in some States 

irrigation might be made to rapk above 

industrial use in one part and below it in 

another. 

To What K 1nd of Water Doe-s a Water 

Right Attach? 

A water right involves more than a specific quantity of water. The water must 

be usable for the purpose for which it is 

appropriated. For example, an irrigation right originally may have attached to "new"· water whose quality was suitable !'or irriga- tion. I.ater appropriations upstream may have diminished the amo'lmt of "new'' water 

reaching the holder of the prior ri@t, and a part o!'his right now attaches to "irrigation-return" water. Return water is §enerally higher in dis'solved minerals than new" 

' 
I 

SALT-WATER ENCROACHMENT . 13 

water; if the mineral content increases 

sufficiently the water may be unusable for irrigation~ or larger quantities of "excess 

irrigation water may have to be applied to 

prevent damage to the soil. Adjustments 

in water rights, or compensation for substantial damage, may be necessary in cases where subsequent appropriations result in 

substantial damage to a prior appropriator 

because of deterioration in the quality of the 

water. 

So far, in decisions involving ground 

water, the holders of prior rights have 

been held to be entitled to reasonable 

protection of their means of diversion--that· 

is, to have the water level maintained 

sufficiently high as~ot to require a sub ... stantial increase in cost of pumping. As 

discussed elsewhere, maximum developt)lent of an aquifer may require modification of · this rule so that the holder of the prior 

right will not be held to have been injured so long as his pumping lift remains 

within that found to be economically feasible 

in that comrmmity·. Thus,· only within econom- ic limits would a water right be held to 

include a given head or pumping lift as a characteristic of the appropriated water. 

The right would attach to a given quantity 

and quality of w&ter but only within limits 

to water at a specified level; those limits 

should be made flexible to allow for changing 

economic and hydrologic conditions. 

Proration in Time of Scarcity 

Under the appropriative system, strict 

application of priorities in ti~e of shortage means that junior appropriators are cut off 

altogether and. senior appropriators get 

their full share. A system that would provide for proration in time of scarcity, both 

serdor and junior appropriators getting some water and the senior being reimbursed by the 

junior, merits study (National Resources 

Planning Board, 1943, pp. 57-59). Where 

superior uses are involved the law might 

already provide for condemnation of a prior right to an inferior use, but a proration system would apply to uses of the same kind. The s·ystem would have the advantage 

of forcing the prior appropriator to make the 

best and most economical use of the water 

remaining to him; the junior appropriator, 

getting some water where otherwise he would 

get none but having to pay for it, obviously 

would do the same thing. The amount of 

compensation to be paid is the most difficult 

problem--whether only the cost of acquiring 

the prior right, or the full loss of income 

suffered by the prior appropriator in 

giving up a part of his water, or something 

between those limits. 

Rights to Use of Return Flow 

The law of rights to return flow f·rom 

irrigation (as would be true for other uses that are nonconsumptive or only partially 

consumptive) is not fully settled (National 

Resources Planning Board, pp. 49-52). Return 

flow results from essentially all irrigation;· even under the most caraful practices some excess water must be applied to keep salts 

from accumulating in the soil, In general, 

there is a trend toward recognition of the 

right of the original appropriator to reuse the return water before it leaves his property or enters a watercourse, and even after 

it enters a watercourse if his original 

declaration of appropriation specifically 

provides that he intends to so recapture it. 

Where the original appropriator makes no attempt to recapture the water, or declares 

his intention to do so but fails to do so within a reasonable time, the water becomes 

available for later appropriators.· 

There is an important distinction between legitimate or inevitable return flow 

and "waste water" resulting from wastefully 

excessive application. Under a doctrine 

providing for reasonable and beneficial use no valid right can be acquired to the exce~s 

water over that reasonably necessary for the 

purpose for which appropriated, so that the 

original appropriator is under no obligation 

to continue the waste; in fact, he is bound 

not to do so. This means that a later 

appropriator whose supply depends on continuation of the wasteful practices does not 

acquire a £irm right to the water. His right is subordinate to that of an appropriator 

who is earlier than he though later than the 

original appropriator, and who would have 

benefited if the wasteful practices had not 

been followed and will be benefited when they are stopped, Where an appropriation depends on long-continued return flOw from excess-:- but not unreasonably wasteful or excessive-- use for irrigation, the user depending on the 

return flow is generally held to be. entitled 

to its continuation. 

Regulation to Prevent Salt-Water 

Encroachment 

Regulation of ground-water withdrawals 

to prevent salt-water encroachment presents a somewhat special case. Where there is no danger of such encroachment, a ground-water 

reservoir can be overdrawn for a time with6ut 

permanent damage, and later the withdrawal can be cut down to the perennial yield, or below it for a time, to restore the depleted 

supply and lowered water levels. Where 

salt-water encroachment occurs, however, 

all or part of a ground-water reservoir may 

be lost for useful purposes for a long time or permanently. It is especially importa·nt, 

therefore, to study carefully all useful 

ground-water reservoirs subject to salt- . water encroachment to determine the optimum 

yield and the necessary methods of development, and to regulate the withdrawals to 

prevent permanent damage. Thus, all important 

coastal aquifers, particularly the coastal 

basins of California and the aquifers of tbe 

Atlantic and Gulf Coastal Plains, should & 

~tudied and placed under control as necessary 

to protect them for the future. In t h e Atlantic and Gulf Coastal Plains many interstate compacts eventually will be needed t~ 

govern the amounts of water withdrawn n~ the 

proper methods of development to reeover the 

maximum supply yet prevent salt-water en~ 

croachment in areas crossing State lines •. In the interior of the country the aquifers 

subject to encroachment of water of poor .. quality from any source should· be Si~~a~ y 

studied and regulated. 
14 WATER LAW 

Restri.ction of Use of Water for Air 

Conditioning 

Use of water for air conditioning has 

imposed a heavy load on the public water 

suppli es of many cities. According to 

Bean (1948 p. 814) ~bout 11 40 percent of the 

water suppiies of the larger cities should 

definitely have air-conditioning regulations in effect, although actually only about 10 

per cent have any such rules or practice any 

volume control. 11 

The Illinois Water Service Co., serving Champai.gn and Urbana, Ill., restricts tbe use of city water for air conditioning 

under a 1946 ruling of the State Commerce 

Commission (Amsbary, 1948, p. 812). Water 

cannot be used in units where the water is 

used directly for cooling, or in compressortype refr!geration units smaller than li 

tons. Each customer may use wat~r for one compressor-type unit of li to 5 tons~ Water 

cannot be used in units larger than 5 tons 

unless water-saving devices such as cooling 

towers are used. The 1946 ruling followed one in 1942 which, in effect, permitted a sur- charge on water used for air conditioning; 

the 1942 regulation was ineffective because 

it was still found to be cheaper to use the 

water than to install water-saving equipment. 

Reno, Nev., restricts the discharge of 

air-conditioning water into the sewer system. 

The State of Indiana restricts the use of 

ground water for air conditioning, whether 

from city supplies or from privately owned 

wells (see section on Indiana in appendix). 

Pasadena, Calif., prohibits the discharge of 

waste water from air conditioning into the sewer system, automatically compelling the 

installation of water-saving equipment 

(Amsbary, 1948, p. 813). 

New J'."ork City requires metering of airconditioning water where the minimum quantity 

required exceeds half a ~llon per minute, 

and water-saving de~ices where the use exceeds an annual average of 5 gallons per minute. Philadelphia requires water-saving 

devices where the use exceeds 10 cubic feet 

(75 gallons) per minute (sufficient for · units up to about 30 tons; the same water, 

with conservation devices, would be adequate 

for up to 750 tons). Detroit, Mich~, Newark, 

N. J., ~ew Orleans, La., Pittsburgb,Pa., and Was,hington, D. C., grant permission for 

air-conditioning installations using city 

water only where the · capacity of the mains is 

sufficient. Wichita, Kans., excludes airconditioning water from the sanitary sewers if the use exceeds 1 gallon per minute. 

Ten other water-supply systems have considered 

regulations but have not adopted the~ 

(Bean, 1948, P• 815). 

According to Kain (1948, p. 819) 

Chambersburg, Pa •t prohibits the insta~la­ tion of air-conditloning equipment of 5 tons or more unless a water-saving device is 

used. Miami Beach, Fla., prohibits the discharge of waste air-conditioning water into 

sanitary sewers if the unit uses more than 2 

gallons per minute. In 1944 the Virginia 

section of the Amarican ·Water Works Association passed a resolution recommending that 

no utility should supply water from·the public distribution system for any new, additional, or enlarged refrigeration at a rate in excess of 0.05 gallon per minute per ton of refrigeration. 

H. E. Thomas; in a personal communication 

of July 11, 1950, points out that: 

"Air condioning creates two types of problems that may lead to regu- lation: One is the taxing of the 

distribution and disposal (sewage) 

systems that have to carry the water, so that they become inadequate for 

their purpose; the other is th~ drain on water supply. Some cities like 

Chicago, with a large reserve for 

public supply, feel the pinch chiefly on their distribution and disposal 

systems. 

"Another point to consider is that 

'conservation devices' may reduce 

the need for 'new' water by as much as 90 or 95 percent, but the water th~y do use is a consumptive use. Thus, whereas they are an economy measure in New York City,·where water 

after use goes out to sea,· they might actually reduce the water resources in Denver, Where municipal water 

after use gets into the South Platte 

River and can be reused again and 

again for irrigation." 

So far as known, the existing regulations in individual cities have been considered as within the legitimate and reasonable powers 

of the municipality' or utility~ to safeguard the adequacy of the public water supply. 

However, Smith (1948, p. 825) believes that 

regulations based on quantity used or on a special, higher price for the water are ~lnerable to a charge of discrimination if no restrictions are placed on certain other 

uses, such as for lawn sprinkling, swimming pools, etc. He points out that water-saving devices are almost a necessity for the 

larger air-conditioning units, even if 

standard rates are charged for the water 

used1 which reduces the seriousness of the 

prob.l m. 

Summertime restrictions on use of water 

for lawn sprinkling, automobile washing, 

etc., of course are common through the 

United States where public wa~e r supplies are inadequate to meet peak demands (Gierlich, 

1948, PP• 746-770). 

Legislation to Promote Maximum Development 

At various points throughout this report 

there has been some mention or reoognition 

that legal centrol of water use, if too 

inflexible, may i~pede full development of 

water resources. The subject deserves brief 

discussion in its own right, in view of the 

increasing water demands in the Nation and 

of the full de.velopment of water resources necessary to meet them. 

The general objective .of water law 

should be to promote full development rather 

than simply to restrict ?Be to prevent local 

.. 
.. 

' .. 

SELECTED BIBLIOGRAPHY lS 

overdevelopment. It should be aimed, not 

only at protecting holders of existing 

water rights, but at encouragi~g others to 

acquire rights where this can be done without serious damage to existing rights. Too 

strict an interpretation of an existing right 

may mean that the favored original appropriator may get his full supply under the 

original condi tiona of quality; head, etc., 

though this may mean that no subsequent 

rights may be acquired because they would 

interfere substantially with his; thus, a large part of the usable water of a basin 

may have to be left untapped. This is 

especially true with regard to ground water 

where the original means of diversion, by 

artesian flow or pumping from only a shallow· depth, is protected too rigidly. The 

criterion should be maximum useful development for the public good, with reasonable 

protection of existing rights; in accordance 

with the highest possible standards of 

efficiency of withdrawal and use that can be 

achieved in the community concerned. 

An interesting current example of an attempt to achieve full development of ground 

water, neither permitting overdevelopment nor restricting use to such an extent that 

unused water is lost by natural discharge, 

is afforded by the practice· of New Jersey. 

There the Division of Water Polic,r and Supply 

of the Department of Conservation, which has 

jurisdiction over all ground-water diversions 

exceeding 100~000 gallons per day in "protected areas, issues permits for new - diversions having a definite time limit. 

At the end of the period the permit is renewed · if conditions appear to warrant it; it 

may be canceled or reduced if the supply 

appears to be fully developed or overdeveloped. So far as reduction of withdrawal is 

concerned, the effect of the practice is not 

greatly different from that in the West, of · cutting off the latest appropriators when 

it appears that the supply is insufficient 

for all. It serves to put the pennit holder on notice that he is acquiring only a limited 

right--one he is prepared to relinquish if 

it is shown that the supply is inadequate. 

Yet the method tends to encourage maximum 

development, on a basis of "wait and see, but 

go ahead and use the ·water. while waiting 

if you want to." 

The principle of prior appropriation 

may prove to be ~ha~ capable of promoting the fullest and most· efficient development 

of water resources, by protecting and encour- aging the investment of money in projects to 

develop water and in enterprises based upon 

its use. But the strict application of the 

principle of priority, no matter what the means of diversion or the use to which the 

water is put, should be modified--as it 

already has in many places--to promote the 

highest beneficial use, the most efficient 

methods of use, and full yet safe development 

of the water resources of each area. · Water 

is a public resource. Its use should be 

regulated to produce the Imximum public as well as private good. 

Finally, it would be well to emphasize 

that oegulation of water use is most effective when done largely through voluntary 

cooperation of water users and the public 

in general, based upon adequate understanding 

of the facts. As in all other phases of re·gulat1on of human conduct, a law whose purpose 'is not freely and plainly understood is not 

easy to enforce. Public recognition of the 

need for equitable and effective control is 

the first prerequisite; it can be achieved 

by adequate investigation of our water resources and free dissemination of the re- sults and their implications. Given such 

understanding, only a minimum amount of 

restrictive legislation will be needed. 

SELECTED BIBLIOGRAPHY 

!M:Amsbary, F. c., Jr.·, 1948, in Rates and regulations for water used in air condition- "ing: Am. · Water Works Assoc. Jour., vol. 

40, no. 8, pp. 809:-81:3. 

Angell, J. K., 187'7, .A 1 treatise on the law 

of watercourses, 7th ed., revised and 

enlB;rged by J. c. Perkins, 839 pp., Boston. 

Baker, D. M., and Conkling, Harold, 1930, 

Water supply and utilization, New York, 

John Wiley and Sons, Inc., 495 pp. 

Bean, E. L., 1948, in Rates and regulations for water used in air conditioning: Am. · 

Water Works Assoc. Jour., vol. 40, no. 8, 

PP• 813-818. 

*Bachert, c. H., 1949, in Current developments 

in ground water law: ·Am. Water Works 

Assoc. Jour., vol. 41, no. 11, pp. 1002-

1004, 

*Bernhagen, R. J., 1949, in Current developments in ground water law: Am. Water 

Worlts Assoc. Jour., vol. 41, no. 11, 

pp. 1011-1012 •. . 

Bingham, J. w., 1916, Cases on the law of 

water rights, 750 pp., Indianapolis. 

Black; A. P., 1947, Basic concepts in ground 

water law: Am. ·Water Works Assoc. Jour., 

vol. 39, no. 101 pp. 989-1001; discussion 

by s. B. Morris, p. 1002. 

*Burch, Clarenc~ 1948, Water laws of 

Oklahoma: Am. · Water Works Assoc. Jour., 

vol. 40, no. · 4, pp. 454-456. 

Chandler, A. E., 1918, Elements of Western 

water law, revised ed., 158 pp., San 

Francisco. 

Congressional Library, 1914, List of referen- ces on water rights and the control of 

water, compiled under the direction of 

H. H, B. Meyer, 111 PP• · 

Conkling, Harold, 1937, Administrative con- trol of underground water: Physical and 

legal aspects: Am. Soc. Civil Eng. Trans., 

vol. 102, pp. 753-837 (with discussions 

by others~ 

Coulson, H. J. w., and Forbes, v. A•, 1924; 

The law relating to waters·: Sea, tidal, 

and inland, 4th. ed., revised by H. s. 

Moore, 688 pp., London. · 

*See appendix. 
16 WATER LAW 

*Critchlow, H. T.i 1948, Policies and prob- lems in contra ling ground water re- sources: Am. Water Works Assoc. Jour•, 

vol. 40, no. 7, pp. 775•781; Appendix, · State ground water ~ws, 1948 1 pp. 781-

783. 

* 1949, in Current developments in ground water law: Am. Water 

Works Assoc. Jour., vol. 41, no. 11, 

pp. 1006-1007. 

Davis, c. F., 1915, The law of irrigation, 346 pp., Fort Collins, Colo. 

Doll, B. E., 1947, Formulating legislation 

to protect ground water from pollution: Am. Water Works Assoc. Jour., vol. 391 

no.- 10, pp. 1003..;.1009. 

.Farnham, H. P., 1904, The laws of waters arid 

water rights, 295() pp • . (3 vola.·), 

Rochester, N. Y. 

Fiedler, A. G., and McGuinness, c. L.i 1948, Groun~-water problems and their re ation 

to Army water-supply installations. Paper 

presented at Water and Sewage Confe~ence, 

Office of Chief of Engineers, Baltimore,· Md., Oct. 26, 12 pp. 

Fly, J. s., 1938, The role of the Federal 

Government in the conservation and 

utilization of water resources: Univ. 

Pennsylvania Law Rev •• vol. 86, pp. 

274-294. 

*Foad and Agriculture Organization of the 

United Nations, 1950, Water laws in the 

United States of America, Agr. Devel. 

Paper No. 2, 161 pp., March 1950 (Reissue 

of report completed in 1948). . 

Gierlich, O·. A., 19481 Meeting the Southwestern water shortage: Am. Water Works 

Assoc. Jour., vol. 40, no. 7, pp. 766-770. 

*Goudey, R. F., 1947, Developing standards 

for the protection of ground ·water: 

Am. Water Works Assoc. Jour., vol. 39, no. 10, pp. 1010-1020. 

Gould, J. M., 1900; A treatise on the law of 

waters, 3d · ed., 956 pp., Chicago. 

Harding, s. T., 1936, Water rights for 

irrigation: Principles and procedure for 

engineers, 176 pp., Stanford Univ. 

Hawaii Univ., 1948, Oahu ground water control. 

Legislative Reference Bur. Rept. 8, 67 PP• 

Hepler, J. M., 1948, Water legislation in 

Michigan: .Am. · Water Works Assoc. Jour., 

vol. 40, no. 1, pp. 88-96. 

Hutchins, Wells, 1934, Policies governing the ownersh~p of ~eturh waters from 1rriga~ 

tion:. u. s.. ~t. Agr. Tech. Bu.ll. 439, 

48 pp. 

l939a, Ground water law in the 

Western States: Assoc. Western State 

Eng. Proc., val. 12, pp. 93-100. 

· 1939b, Water rights for irriga- tion in humid areas: Am. Soc. Agr. Eng. 

Jour., vol. 20, pp. 431-432, 436. 

1940, Protection in means of 

diversion in ground•water supplies: 

California Law Rev., vol. 29 1 pp. 1-20. 

----~--~~ · 1941, Some defects in Western 

water law: Assoc. Western State Eng. 

Proc., vol. 14, pp. 44-61. 

· 1942, Selected problema in the 

law of water rights in the West: U. S. 

Dept. Agr. Misc. Pub. 418, 513 pp. 

*Illinois Legislative Council, 1948, Control 

of ground water: Report prepared pursuant to Proposal 266 by Representative 

Warren L. Wood: Publication 88, 26 pp., 

May 1948. 

*Johnson, A. H., 1949, in Current developments in ground water law: Am. Water 

Works Assoc. · Jour., vol. 41, no. 11, pp. 

1010-1011. 

Johnson, D. w., 1905, Relation of the law to 

un:ierground waters: u. s. Gaol. Survey 

Water-Supply Paper 122, 55 pp. 

Kain, T. H., 1948, in Rates and regulations, for water used in air conditioning: Am. 

Water Works Assoc. Jour., vol. 40, no. 8, 

pp. 818-819. 

Kinney, c. s., 1912, A treatise on the law 

of irrigation and water rights, 2d ad., 4~58 pp. (4 vola.), San Francisco. 

Kinyon, s. v., and McClure, R. c., 1940, 

Interferences· w1 th· surface wa tars: 

Minnesota Law Rev., vol. 24, pp. 891-939. 

*Klaiil~ S; P •. , 194Q,. &i.urmis..cy _of ·the ·statutes 

affecting water in the 31 Eastern States: 

Nat. Resources Planning Board, Water Re- -sources Cammittee, ·Subcommittee on State 

Water Law, 117 pp., June 1940. 

*Knapp, .. G-. S., 1949_

1

. in current developinents in gro~d water aw: ·Am. Water Works 

Assoc. · Jour., vol. 41, no. 11, pp. 

1004-1006. 

Long, J. R., 1916, A treatise on the law of - irrigation, 2d ed., 626 pp., .Denver. 

*MQGuinness, c. L., 1945, Legal control of use of ground water: Water Works Eng., 

vol. 98, no. 9 1 pp·. 415, 508-512. 

.McHendrie, A. w., 1930, The evolution of the 

doctrine of priority of water rights: 

Colorado Bar Assoc., vol. 33, pp. 123-141. 

Minard, D. E., 193.7, The future or. water 

allocation and developments in interstate 

agreements; Am. Water Works Assoc. Jour•, 

vol. 29, no. 7, pp. 942-950; discussions, 

PP• 950-959. 

*Nat. Assoc. Vertical Turbine Pump Manufacturers, 1947, Report and recammende4 

policy: Water conservation codes, 10 PP• 

.. 
... 

) 

.. 

SUMMARY OF EXISTING WATER LAW 17 

Nat. Reclamation Assoc., 1943, Preservation 

of integrity of State water laws: Report and recommendations of committee of 

Nat. ·Reclamation Assoc. appointed October 

1942, 1?6 pp~, October l943. 

1946, Desirable principles of 

State water legislation. Final report 

of committee appointed October 1942, 

128 pp., October 1946 • 

*Nat. Resources Planning Board, 1943, State 

water law in the development of the West. 

Water Resources Committee, Subcommittee on State Water Law, 138 pp., June 1943. 

Olsen, R. L. 1926, the Colorado River Compact, 52? pp., Cambridge, Mass. 

Shaw, Lucien, 1922, The development of the 

law of waters in the West: California 

Law Rev., vol. 10, pp. 443-460. 

Smith, G. E. P., 1936, The preferential 

rights in the use of water and their re- lation to agriculture and authority for 

enforcement: Am. Farm Bur. Fed., Inst. 

Irrigation Agr., Proc. Fifth Ann. 

Conference, 9 pp., March 1936. 

Smith, M. C., 1948, in Ra tea and regula tiona 

for water used in ·air conditioning: Am. · Water Works Associ' Jour., vol. 40, no. a_. 

pp. 823-826 0 ..• 

*Spence, E. V., 1948, Conservation and con- trol of Texas water resources: Am. 

Water Works Assoc ~ Jour., vol. 40, no. 4, pp. 445-45~. . 

Thompson, D. G., and Fiedler, A. G., 1938, 

Some problems relating to legal control 

of use of ground waters: . Am~ Water Works 

Assoc. J?ur., vol. 30, no. ?, pp. 1049~ 

1091. 

*Thompson, · J. c., 1949, in Current developments in ground water law: Am. Water 

Works Assoc~ Jour., vol. 41, no. 11, 

PP• 100?-1009. · . 

Tolman, C. F., and Stipp, Amy c., 1941, 

Analysis of legal concepts of subflow 

and percolating waters: Am. Soc. Civil 

Eng. Trans., vol. 106, Paper No. 2116, 

pp. 882-901; discussions, pp. 902-933. 

Trygg, J. E., 1948, State control of Louisiana 

water resources: Am• Water Works Assoc. 

Jour., vol. 40, no. 4, pp. 45?-460. 

U. s. Dept. Agr., Interbur. Committee, 1941, 

State legislation for better land use, 

122 pp • 

Warne, w. E., 1948, Legal and economic problems associated with excessive withdrawal 

from ground-water sources: Inter-American 

Conference on Conservation of Renewable 

Natural Resourcesi:,)): -Proc., Sec. III, 

pp. 29?-304, Denve~, Colo. 

Wiel, S. c., .1911, Water rights in the 

Western States, 3d ed., 206? pp. (2 

vola.), San Pancisco. 

1918, Origin and comparative 

development of the law of watercourses in 

the common law and in the civil law: 

California Law Rev., vol. 6, pp. 245-26?, 

342 -3?1. 

1919, Waters: American law and 

French authority: Harvard Law Rev., vol. 

33, pp. 133~167. 

. 1929, Need of unified law for 

surface and underground water: Southern 

California Law Rev., pp. 358-369, April. 

1936, Fifty years 6f water law: 

Harvard Law Rev., vol. 50, no. 2, pp. 

252-304. 

*Williams, 0. c., 1948, Ground-water problems 

of the reclamation States: Assoc. 

Western State Eng. Proc., 8 pp. (reprint). 

APPENDIX 

PARTIAL SUMMARY OF EXISTING WATER LAW 

BY STATES 

Following is a brief summary of existing 

water law in each State according to data 

available in the files of the Geological 

Survey. The statements are· based on items "marked with an asterisk (*) in the bibliog- . rapr~y, and ori copies of laws and miscellane- ous data.in a "legal file" maintained especially with reference to ground water. The 

Geological Survey has ~ot had time to make a complete canvass of the States to obtain 

up-to ... date information, and the summarie.s are by no means complete. They are presented 

simply as a brief and partial picture of the 

sitUation in the d~fferent States. 

The £ummaries refer generally to legal provisions as they are nnderstood to exist. 

Few of them reflect the current state of 

enforcement of the laws described. 

The summariesrefer largely or exclusively 

to legal control of diversion of water, and 

briefly or not at all to the laws affecting 

flood control, drainage, pollution, sanitary 

quality of water supplies, etc., that are in 

force in many States. In practically every 

State the State health department ijas jurisdiction over pub,lic water stpplies, to protect 

their quality; in a number of States other 

agencies also have . jurisdiction. 

The health departments and, in a number 

of States, separate agencies: hive control over the pollution of streanis ~d, in· some cases, of ground-water bodies. ~ws in many 

States regulate the construction of dams for 

power production and .other uses, formation of irrigation~ drainage, and levee distric~s, 

navigation, condemnation of land and of 

riparian rights for public water supply, etc. 

These subjects could not be covered in the 

brief time available. 

Thus, the frequently used statement 

specific statutory control of diversion of 

water" refers only to ·the absence of statute~ 

providing for the acquiring of water rights. In States for which such a statement is made, 

the riparian rule for surface water and the 

English common~law rule or one of its Ameri-
18 WATER LAW 

can adaptations for ground water generally 

may be considered to apply. 

Alabama 

No specific legislation controlling diversion of water. Riparian rights for surface 

water. Common-law rights for ground water. 

Legislative acts of 1947 and 1949 give Water 

Improvement Advisory Commission authority to 

control new pollution, and existing pollution where it becomes hazardous, except for 

certain named "industrial streams" that are not subject to control. 

Arizona 

Doctrine of riparian rights abrogated by legislature in 1887; abrogation embodied 

in State constitution. Water of surface stream;~,. "spri~on the surface, 11 and "definite 

undergroun streams" subject to appropriation 

by owner of irrigable land, or possessor 

having intent and apparent future ability to 

acquire ownership. Ground water assumed to 

be percolatinW unless shown definitely to 

constitute a definite underground stream." 

American rule of reasonable use favored for 

"percolating waters." State law of 1948, in 

effect covering only "percolating waters," 

gives State Land Commissioner authority to 

declare "critical ground-water areas" and 

stop further irrigation developments therein. 

Law exempts domestic, stock, public, industrial, and "transportation" {railroad, etc.) 

wells; required registration of all existing 

i.rrigation wells, and permits for new, .. wells. 

There is no. statutory author! ty to reduce 

present overdevelopment, except as water of a g~ven overdeveloped area might be held to 

constitute a "definite underground stream" and 

thus fall under the law of watercourses. 

Arltansas 

No statutory provision for control of 

diversion of water at present. Bill prepare~ 

before the last session of 1948-49 

legislature proposed to establish, under 

the police power of the State, the principle 

of prior appropriation of surface water for 

beneficial use, to be administered by State 

Resources and Development Commission. 

Ground water was not included, but one of 

stated purposes of proposed act was to 

"facilitate the conservation of ground 

water in many areas". by encouraging surfacewater developments. Bill was not introduced 

to legislature. A similar bill had been 

introduced in a previous session ~f the 

legislature but did not pass. A bill for an act to make the filing of water-well logs 

mandatory was introduced to· the 1948-49 

legislature but was withdrawn. Surface-water 

legislation may be introduced in the 1950-51 

session, 

California 

All water is declared by statute to be 

property of the people of the State, but 

available for appropriation for beneficial 

use, subject to existing rights. 

Under California law both riparian and 

appropriative rights are recognized in water 

of surface streams, and also "subterranean 

streams flowing ih definite channels.'' Riparian rights do not include right to store 

water for future use. Springs that are the source of streams are subject to the law of 

watercourses, but a spring from which no stream naturally flows ordinarily belongs to 

the landowner, except that appropriations of 

spring water on the public domain are protected against subsequent entr~en. Ground water 

not shown to constitute a definite underground stream" is presumed to be r.ercolating. 

There is no statutory control of 'percolating 

water," but court decisions have establis:P,ed 

the doctrine of correlative rights, and also 

have made 11 percola ting water" aw>ilable for 

appropriation where there is more than enough for the reasonaqle use of overly~ng landowners, or where the landowners are not using 

it, but subject to their future use at any 

time. Interconnected surface and ground 

waters are treated as a common supply, the 

rights of overlying landowners, owners of 

riparia,n rights, and appropriators being 

correlated on a basis of reasonable beneficial use. All rights of every character are limited to use for reasonable and beneficial purposes under reasonable methods of 

diversion. All rights are subject to loss in 

whole or in part by prescription. 

By statute, water-right filings made by 

the State covering surplus or unappropriated 

waters for a coordinated plan of water 

conservation may be released or assigned for 

developments not in conflict with such a plan an~ not in conflict with the needs for 

future development of the county in which the 

water originates. The statute providing for · such preferential rights of counties is 

commonly referred to as the. "Counties of 

Origin" act. 

Colorado 

The doctrine of appropriation is exclusive 

for all "natural streams"; the :riparian 

doctrine has been repudiated under the 

"Colorado doctrine . " The statutes provide that a landowner may use spring or seepage 

water arising on his. property if capable of 

being put to use there, but that which would 

be tributary to a stream if not diverted is sub ject to prior rights on the stream. If 

the flow is shown not to constitute a natural 

watercourse it _may be used by the landowner. 

"Percolating waters" tributary to a surface 

watercourse are subject to ap~ropri'ation. 

It is not certain what rule would be applied 

to "percolating waters" not tributary to a watercourse, if there are any such waters, 

but in all liti~ation so far involving "percolating waters they have been held subject 

to appropriation. 

A bill providing speciffcally for a groundwater code, based on the principle of public 

ownership and availability for appropriation 

of all waters except "springs not contributing to a natural stream," was introduced in 

the State legislature in 1947 but failed to 

pass. 

Connecticut 

No general statutory control of the 

r 

• 
.-

SUMMARY OF EXIST! NG WATER LAW, 19, 

diversion of water, but the General Assembly 

has granted such rights in specific cases, 

such as for public water supply. Presumably 

the riparian doctrine would be followed for 

surface water. A court decision reached in 

1939, or perhaps somewhat earlier, app~ied 

the English rule in permitting withdrawal 

of "percolating water" from wells by the 

Cromwell Water Co. for export from the drainage basin of Dividend Brook, notwithstanding 

the claim by the Hartford Rayon Corp. that 

the water contributed to the flow of the 

brook, the full flow of which was used and 

needed by the corporation. The Board of 

Health of the city of New Haven has a regulation, effective August 15, 1936, requiring 

permits for the construction of wells, but 

it relates entirely to sanitary aspects and 

not to conservation of ground water. 

Delaware 

No statutory control of diversion of water. 

The State Board of Health and the Water 

Pollution Control Commission, the latter 

established in 1949, have the customary 

authority over public water supplies and 

sewage and waste disposal'• 

Florida 

. A 1929 State law that applies in effect 

only to Sarasota, Manatee, and Charlotte 

Counties provides that -discharge from 

flowing artesian wells is to be regulated by 

control structures to the amount needed for 

beneficial use. Notice of drilling an artesian well ("any artificial hole in the ground, 

fifty feet or more in depth, made for the 

purpose of obtaining water supplies from 

subterranean sources") is to be filed with 

the State Geological Survey. Wells encountering water unsuitable for human consUmption are to be plugged so as to protect the water 

of other strata. The State Geologist may 

regulate the withdrawal of all wells in 

any district in these counties that is threatened by salt-water encroachment. 

The Board of Commissioners of Seminole 

County has the authority to require capping 

of flowing wells and to prevent waste of 

artesian water. 

The State Board of Conservation has 

authority to promulgate regulations to prevent activities in one area or watershed that 

would adversely affect the surface or underground water supply of another area or watershed. However, legal means of enforcing any such regulations are lacking. 

Georgia 

Riparian rights apply to surface water, 

common-law rights to ground water, but whether 

English or American rule would be followed 

is not known. Riparian owners are empowered 

to ditch and embank their lands. for protection against flooding, so long as stream is 

not diverted from its original channel. 

"Trespass may not be maintained for interference with underground streams." Formation 

of State pollution-control board under con- sideration, and legislation may be introduced 

in 1951, possibly including ground water as 

;well as streams. Law of 1945 empowers State 

Oil and Gas Commission to regulate drilling 

of oil and gas wells to prevent waste of 

these fuels and loss or contamination of 

fresh water. 

Records and cuttings from water wells are to be furnished to the Division of Mines, 

Mining and Geology. State Department of 

;iealth has authority over location of municipal water-supply wells and over wells used 

for waste disposal. City of Savannah re- quires permits for new water wells, with 

special restrictions on additional industrial 

wells. 

There is interest in legislation to pro- hibit waste of water from flowing wells, or at least to establish an agency to· carry ·on a campaign of education to red1,1ce such waste. 

Idaho 

The. riparian doctrine has been abrogated 

in Idaho. All water in natural streams, . surface or underground, has been held to be 

subject to appropriation, and "percolating 

waters" likewise have been held to be subject to appropriation. However, the State 

may regulate and limit the use of water 

appropriated for power purposes. Spring water 

not flowing from a landowner's property can be used by him, unless appropriated by another 

while the land was part of the public domain. 

Waste of water from flowing artesian 

wells is prohibited. 

The State legislature passed a groundwater code, effective 60 days after its 

signing by the Governor on March 19i 1951. 

The code affirms the traditional po icy of 

the State of requiring that the waters of' 

the State 11 be devoted to beneficial use in 

reasonable amounts through appropriation" 

and extends it specifically to all ground 

water. It provides a procedure for appropriation of ground water, under the supervision of the State Reclamation Engineer. 

Illinois 

Permits for drilling wells are issued by 

Department of Mines and Minerals; logs of 

wells and, where desired, drill cuttings must 

be submitted to -the State Geological Survey. 

Wells tapping oil- or gas-bearing rock shall, 

with certain exceptions, be ca~ed so as to 

seal off all fresh water. Abandoned wells 

must be plugged so as to protect water suitable for domestic use or irrigation. In 

1943 a bill was submitted providing for establishment of a Water Conservation Board having 

rather complete powers over the development 

and use of all waters in the State, except 

for water used for domestic or agricultural 

purposes, where the authority was limited to 

requiring the furnishing of information, 

and, for water used for agricultural purposes, 

to the prevention of excessive waste. The 

board would have had the authority to regulate withdrawal of water in designated 

"administrative water areas," ih the interest 

of conservation, and to practice artificial 

recharge of ground water where reasonable 

regulation of withdrawal would not meet the 
20 

need. The principle of priority was to be 

followed within the administrative areas, 

subject to existing vested rights; where 

WATER LAW 

the supply was inadequate even for existing 

rishts the water would be apportioned among 

the users. However, in time of shortage the board would have . had the authority to 

restrict withdrawals on bases other than 

nriority, such as the public interest, 

relative benefits of use, etc~, even in areas where rights based on priority had been 

acquired. The bill failed to pass. A some- what similar bill was introduced in 1949 

but was withdrawn by its sponsor upon agreement by prominent business and agricultural 

groups to collaborate in revising it and to 

support the revised bill. 

Use of city water for air conditioning 

in Champaign-Urbana is restricted by rule of 

the water utility (see section in text on Restriction of use of water for air contioning). The restriction was justified on the 

basis of depletion of the local ground-water 

supply, and the uneconomic, concentrated 

loads imposed by air conditioning on the wells 

and treatment and distribution facilities of 

the water company. 

Indiana 

Riparian rights for surface water. Commonlaw rights applied to ground water until 1947. 

A law passed in that year by the General 

Assembly prohibited the use of 200 gallons 

per minute or more of ground water for airconditioning and cooling purposes unless the· 

water was recirculated through cooling tow- ers or other devices and reused, or the water was returned to the ground through recharge 

wells, or a permit was obtained from the 

Department of Conservation. The Department was to deny such permits only when the available information -indicated that a withdrawal 

in excess of 200 gallons per minute would 

affect the ground-water resources of the area "to such an extent that it will be injurious 

to the public health and welfare of the 

community." The State Board of Health issues 

permits for the return of water to the ground, 

requiring methods that will insure protection of the sanitary quality of the water• 

The law provided no penalty for violation 

and no funds for enforcement. For these 

reasons, and also because the law restricted the use of water .for a specific purpose 

and thus raised a question of constitutionality, it was not enforced strictly. It was repealed by the legislature in February 1951 

and replaced by Senate Enrolled Act No. 56. 

The new law authorizes the Department of 

Conservation to declare "restricted-use 

areas" where withdrawal exceeds or threatens 

to exceed replenishment and to issue full or mod i fied permits, or refuse t~ issue permits, 

for new uses exceeding 100,000 gallons per 

day. The Department is authorized to prohibit 

waste of groUhd water in restricted-use areas. Waste is defined to include any non- beneficial-use (including permitting a flowing well to discharge more than 1,500 gallons 

per day of wa.ter that serves no useful purpose) and also the contamination of a freshwater stratum. · 

Another law passed in 1947 (Chapter 277), 

and rules and regulations of the Indiana 

Department of Conservation promulgated thereunder, require a written permit for drilling 

any well for oil and gas or for secondary 

recovery, input wells, and wells for the disposal of salt water, brine, or oil-field 

wastes. It is further required that an accurate log or record of the well be filed 

with the Indiana Department of Conservation, 

showing the name, location, ·and elevation 

above sea level of the well; the name, 

character, and thickness of the formations 

encountered; the position and thickness of 

coal beds and other deposits of economic 

value; the kind of well (whether dry or productive, oil or gas) and, if productive, the 

initial production before and after shooting or acidizing; and the depth of any freshwater horizon known to have been penetrated 

and such information as is available as to 

the volume of fresh water. Such records may be kept confidential upon request for a peri• 

od of not less than 6 months. 

The Conservation Commission also regula~ps 

the disposal of salt water and sate liquids;, and gas and water input wells, to prevent 

surface or underground contamination. 

Iowa 

Legal.situation generally similar to t~t 

in other States where the common-law riparian 

system prevails; no specific statutory con~ 

trol of diversion of water. A bill was p~­

pared in 1937(?} and a revised one in 194~ 

for an act to give the Iowa Geological Survey, 

State Department of Health, and State Conservation Commission general supervision ~d 

control of all methods of obtaining ground 

water for human consumption, as necessary 

for the safeguarding of public health and 1the 

conservation of ground-water resources. Jhe 

bill was not passed. In 1941 a bill was introduced to create a water-well committee 

empowered to establish minimum standards for 

the construction of wells and the conserva- tion of underground water. The bill fai1ed 

to pass. 

In 1949 the General Assembly created the 

Iowa Natural Resources Council. It is the 

duty of the Council to establish a comprehensive State-wide plan for the conserva- tion, development, and use of water resources, 

including gro.und water. Legislation doubtless will be recommended by the Council. 

Prior to 1945 both riparian and appropriation doctrines· were followed, with some distinctions on a regional basis. Chapter 

390 of the Laws of 1945, however, makes 

appropriation, by application to the Chief 

Engineer of the Division of Water Resources 

of the State Board of Agriculture, the ex- clusive method of acquiring a water right, 

except fpr domestic purposes• The controlling 

principle for all water, surface and underground, is declared to be priority of appropriation for beneficial use, subject to vested rights to the use of water for beneficial purposes. Preferential uses in the case 
.-

J 

,. 

SUHMARY OF EIISTING WATER LAW 21 

of conflicting applications are e~tablished 

as follows: domestic, municfpal, irrigation, 

industrial, recreational, and water-power. Rights, except to domestic use, are forfeited after 3 years of nonuse. Existing common- law rights (the common law was adopted by 

the first territorial legislature in 1855) are recognized as vested rights, which cannot 

be impaired except for nonuse. 

Kentucky 

No specific statutory control by the State 

of diversion of water. Abandoned salt wells 

must be filled or enclosed. In the Loui.sville area the Louisville and Jefferson County 

Health Department sponsored the adoption of a drilling code which requires a permit for 

drilling wells to be used for human consumption or for artificial recharge. In the same area the recently formed Metropolitan 

Sewer District finances its operation by means of a "sewer tax." The effect has been 

to reduce the pumping of ground water, as the cost of disposing of used ground water 

into sewers has become a substantial part of 

the total cost of developing the water. 

Louisiana 

No specific statutory control of diversion 

of water. No proposed legislation on ground water. Only pending legislation on surface water is a bill to establish a Sabine River Authority, one of whose principal tasks would be to negotiate a compact .. . with Texas providing for control of the river 

and distribution of its waters. 

State law provides for proper construction 

of oil and gas wells and protection of freshwater supplies from contamination, as in many 

other oil-producing States.· The Department 

of Health can require the sealing of abandoned 

wells to prate ct public water supplies. 

A bill was introduced in 1938 in the House 

giving the Department of Conservation 

authority to make and enforce regulations 

governing the drilling of wells and the. con- servation and prevention of waste of ground 

water. The bill did not pass. In 1944 bills were introduced to establish a State Water 

Control Authority and to give it power to 

establish regulations for the use of water in 

the public interest including the sealing of ab~.ndoned flowing wells, regulation of diversion of surface water, and regulation of 

surface and underground waste disposal. The 

bills did not pass. 

Maine 

No specific statutory control of diversion 

of water. "Named water districts may tap 

any surface or underground waters wi·thin 

designated areas and may acquire all necessary 

water rights by eminent domain." 

Maryland 

Water-resources law of 1933 declares· it 

to be the policy of the State to control the 

appropriation and use of the waters of the 

State, both surface and underground, and 

makes it unlawful to appropriate or use any 

waters of the State . without a permit from 

the Department of Geology, Mines and ater 

Resources. Exempted are the use of water 

for domestic and farming purposes and the use of water for an approved water supply 

of any municipal! ty; also uses in existence on January 1, 1934, provided that they are not thereafter abandoned. The act provided 

for issuance of permits to appropriate water, 

except where the Department is of t he opinion 

that the proposed appropriation would be 

wasteful, dangerous, impracticable, or detrimental to the public interest. No enforcement machinery was provided, and the law was not enforced until the water-well law of 

194_5 -was passed. The· law provided for the 

licensing of well drillers and for issuing permits for all wells (water, gas, oil wells, 

test holes) 50 or more feet deep, except 

hand-dug wells and drive-point wells. A 

1949 amendment requires a permit for all 

wells drilled with a machine rig, regardless of depth; only hand-dug and · driven wells are now exempt. 

Massachusetts 

Named municipalities, water districts, or water companies may acquire by purchase or ~ondemnation ground- or surface-water sources within defined areas not already 

appropriated for public water suppl-y; anyone wishi~ .t.o di.ve.r.t wat.e.r .. ror public supply 

must. petition the General Court (legislature) 

except in emergencies. No one shall pollute 

any public water supply; divert water from 

any surface-water sources of public water 

supply, or divert from the distribution sys- · tern of any public water supply. The existing· law has never been interpreted to limit the 

taking of ground water by private individuals or public agencie~except that public water 

supplies must have the approval of the 

Department of Public Health as to location, 

appropriateness, and saftey. 

An "act to regulate ground water supplies 

in the Commonwealth" was introduced at the 

1950 session of the General Court; 1 t would 

authorize the Department of Public Health to 

take action 11 to restrain the use of or drawing of water in a manner which may jeopardize 

the water supply . of such public water supply 

agency" {water company, water district or fire and v:at<:lr district, municipality, or other public ag~ncy). This ·bill resulted in a resolve which provides for an investiga- tion and report by the Department of Public 

Health on the subject of regulation of groundwater supplies and also "the whole matter of .. the use by individuals, municipalities, water 

districts or fire and water districts,, water 

companies, or state agencies, of waters 

lying below the surface of the ground, and 

the protection of such ground waters from 

pollution." 

The Department has made its report to 

the General Court, as authorized by the 

resolve. The report states that creation of a regulatory body authorized to allocate 

ground water will be necessary within a generation. It recommends revision of existing legislation to give the Department more authority to restrain pollution of or encroachment on public water supplies. The 
22 WATER LAW 

report contains a table summarizing briefly the status of water law in the different 

States. 

Michigan 

Riparian rights apply to surface water 

and probably the American rule of reasonable use to ground water. If the waters of any 

well are put to a use (such as waste of 

water from a flowing well) that is unreason- able in view of the surrounding- cond.i.tions, 

and other wells supplied from the same reser- voir are thus injured, it shall be deemed a nuisance and may be abated. The decree 

"shall specify the volume of water that shall 

be allowed to flow therefrom. Such decree 

may be reopened on the question of reason- able use at any time on a showing o~ change of circumstances. 11 

The State supervises the locating, drilling, operation, and plugging of wells drilled 

for ojl, gas, oil- and gas-field w~ste input, secondary recovery, and geological information. 

Such wells penetrating salt .or mineral water, 

when abandoned, are to be plugged so as to 

prevent contamination of fresh water. 

A 1949 law created the Water Resources 

Commission, which "shall protect and conserve the water resources of the State and shall 

have control of the pollution of surface or und erground waters of the State of Michigan 

and the Great Lakes ••• •" Regulations cover.;. 

ing pollution of ground water have been drafte.d and are in the process of review. 

A bill was introduced in 1947 to require 

11 censing of well drillers and fumishing of · well records ~o the· State; it dealt also 

with conservation of surface water. It did 

not pass. Now under consideration is another 

bill for a proposed surfa~a~. law, one of 

the purposes of which would be to "facilitate 

the conservation of ground waters in many areas. 11 The bill is based on the police 

power and on beneficial use and reasonable means of diversion as the limit of any water 

right. Vested rights, including riparian 

rights, would be recognized. Water in excess of that needed for those rights would 

be subject to appropriation by the exclusive 

method of application to the Water Resources 

Commission. The Co~ssion would have the 

power to reject applications in· the public interest. 

The State and/or the county boards of 

supervisors have authority to petition the 

circuit courts for determination of the "nor..; 

mal" level of inland lakes, as shown by existing records and testimony and as affect• 

ed by the public interest under present con- ditions, and to build dams or other structures 

to maintain that level. 

Minnesota 

A 1947 law provides that any county in 

which all or part of any body of water is 

situated, upon issuance of a permit by the 

Commission of Conservation, "in order to 

improve navigation thereon, or to promote the public health, safety and welfare, may 

improve th~ same and ~intain the improvement 

and operate control works." The public must 

be given access to some portion of the shore 

line of the body of water improved under the 

law. 

The water.;.resources act of l947L replacing a similar earlier law passed in 193'/ 1 pro- vides that (1) subject to existing rights, 

all waters in streams and lakes wholly or partly within the State and capable of being 

put to substantial beneficial use shall be 

subject to the control of the State; (2} 

the State, so far as practicable, shall con- trol the appropriation and use of surface 

and underground waters of the State; and (3) 

the State shall control and supervise, · so far as practicable 1 the const.ruction, recon- struction, repair, removali or abandonment 

of dams, reservoirs, and a 1 co~trol structures in any of the public waters of the 

State. 

The law gives broad powers to the Commie-· sioner .of Conservation, who "shall devise 

and develop a general water resources conser- vation program for the State. '!'he program 

shall contemplate the conserVation, allocation and development of all the waters of 

the State, surface and underground, for the 

best interests of the people. The Commission- er shall be guided by such program in the 

issuance of permits for the use and appropriation of the waters of the State •••• " 

It is unlawful to appropriate or use any 

waters of the State without the previously obtained written permit of the Commissioner, 

who "may give such permit subject to such 

conditions as he may find advisable or neces- sary in the public interest." Exempted are use of water for domestic purposes for le-ss than 25 persons, use of water· tor any purpose 

originating within the geographic limits of 

any municipality, and beneficial uses and 

rights in existence on July 1, 1937. Specit·-

ic authority is included for regulation of 

artesian .wells to prevent waste.- Provision 

is made for appeal to the district court and 

then to the Stat~· Supreme Court from any ruling of the Commissioner. 

Under the terms of the law, the State 

apparently is free to apply any principle, 

that of prior appropriation or any other, to 

proposed uses of water not exempted by the 

act. 

Mississippi 

No specific statutory control of diversion of water. In 1944 a bill was introduced 

providing for licensing of well drillers, 

issuance of a permit by the Oil and Gas Co~ssion for the drilling of any well to a stratum containing water under artesian 

pressure, and prevention of waste of water 

from any artesian well, by flow or pumping or by leakage through defective casing. The bill did not pass. A similar bill was introduced at the 1950 session of the legislature; it did not pass. 

Missouri 

No one may divert water from any stream or spring used for domestic pUrposes. (Apparently this refers to a diversion that 

( 

1 
SUMMARY OF EXISTING WATER LAW 23 

would interfere with the use for domestic 

purposes.) Any one owning land on the bend 

of a river may divert water across the bend 

to generate power. Sufficient water must · be left in the river to satisfy domestic 

and stock uses of families below the point 

of diversion • . Damages must ·be paid for any 

injuries caused by the diversion. 

Montana 

Water of surface streams is, by statute, 

subject to appropriation, the riparian doctrine having been abrogated. Water of 

"definite underground streams" has been 

held to be subject to the same rule. Spring 

water may be appropriated: 

An appropriator of the water out of a stream. has the right to the flow of a spring 

appearing subsequently in the bed of a tributary as a result of natural causes; however, 

if the flow would not reach his diversion 

during the dry season, it could be appropriated during that period by others. Also, an increase, due to return of irrigation water, 

in the flow of an existing spring at the head 

of a watercourse on which appropriative 

rights have been established, does not belong 

to the one who supplied the irrigation water 

from which the increase in flow resulted. 

Until 1947 the English rule apparently was followed for "percolating waters." In 

1947 was passed "an act to provide for the 

conservation of underground water." It provides that anyone owning land can drill an artesian well or wells on his land for domestic, stock, irrigation, or manufacturing us~. 

However, wells are to be r.roperly constructed to prevent caving and 'loss of underground 

water above or below the surface." Logs and 

other data on wells are to be furnished to 

the State Engineer, and, if requested, periodic records of water-level elevations. 

The statute prohibits waste of water from 

artesian wells, flowing or nonflowing. 

A specific ground-water code was introduced in the 1951 session of the State legislature and was defeated in the House. The 

code would have made water of "underground 

streams, channe1s, artesian basins., reservoirs, or lakes" subject to appropriati'on for 

beneficial use. It would have recognized 

the priority of rights to the use of surface 

water to which the ground water is tributary. 

It would have provided a procedure for making ground-water appropriations similar to that 

in other Western States having ground-water codes. 

Nebraska 

VJith regard to surface water, the riparian doctrine was held in a 1903 decision of 

the State Supreme Court to have been replaced 

in 1889 by the doctrine of prior appropriation under the Irrigation Act of that year; 

only riparian rights accrued before that time were val'ld as against subsequent appropriations. 

A riparian landowner who has not made 

actual use of the water before appropriators 

acquire rights cannot enjoin them but can 

only recover damages for an injury to his 

right. However, when appropriations are . made 

with his knowlejge before he begins to use water under his riparian right, · and he is en- joined. from using the water under that right, 

the damages he can collect do not include 

the cost of ditches he constructed in preparing to use water. Thus, subject to riparian rights existing as of 1889 and to appropriative rights acquired thereafter, surface 

water is subject to appropriation;. The Department of Roads and Irrigation may exercise 

reasonable discretion in refusing to grant a permit for appropriation, if the public 

interest demands. 

The State Supreme Court in 1936 . (1938?) 

ruled that water could not be appropriated 

for use outside the watershed in which the 

appropriation is made. The decisioi1has the 

effect of blocking several water-development projectS' that were planned on the basis of 

interbaain diversions. The term "watershed" 

is not .defined exactly enough to determine 

whether diversions may be made from one subbasin to another within a larger basin. 

Spring water that forma a stream is spbject to appropriation. Ownership of land Qp which there is a spring that forma a streall\ 

gives only a riparian right. 

One court decision in 1933 implied that 

"definite underground streams are subject to 

the same rules of law as are surface streams." 

The same decision favored the American rule 

of reasonable use for "percolating waters"; 

further, it stated that a,portionment in 

time of shortage would be permissible, thus 

approximating the California rule of correlative rights. 

In 1941 a bill for a ground•water law was introduced in the State legislature. 

The bill declared all ground water to be the 

property of the State and subject to regulation under the police power. The bill recognized vested rights and exempted domestic 

supplies of not more than 100 gallons per minute; also public water supplies. Administrative water areas would be designated, and existing rights certified. Anyone nop 

already using water in such an area could , .. apply for a permit to do so. The Department. of Roads and Irrigation would allocate a quantity of water, if unallocated water 

remained--a "reasonable pror.ortion of the 

available supply." Such a 'r~asonable 

supply" would not ,extend to more water than 

needed for beneficial use on land owned or leased by the applicant; in any case, it 

would not be more than 1 cubic foot per sec- ond for each 70 acres or 3 acre-feet per acre per year. 

The rights of holders of certificates 

issued at the time of designation would be 

superior to those of holders of •allocation 

permits" or "temporary allocation permits" 

acquired thereafter. If the supply proved 

to be insufficient for all, the water sur- plus to the needs of the certificate holders 

would be prorated among the holders of allocation permits unless the quantity thus provid- ed to each would be so small as to be useless. 

In such event, ·the water would be divided, 
WATER LAW 

in useful amounts, among the earlier holders 

of pennits. 

The bill, which combined some features of 

the appropriation and correlative-rights doctrines, was not passed. 

Nevada 

The doctrine of prior appropriation for 

beneficial use is exclusive in Nevada for all 

water, surface and underground. Domestic uses- of not more than 2 gallons per minute from 

wells are exempted. The State Engineer has 

authority to distribute the water of adjudi~ 

cated streams; he also has the authority to 

regulate permitted rights for use of water of 

unadjudicated streams. Spring waters are subject to appropriation; those which are the source of a stream are subject to appropri- ative rights on the stream. The statute of 

1913 referred to all water. Legislation 

enacted in 1915 exempted "percolating water, 

the course and boundaries of which are incap- able of determination." The ground-water 

statute of 1939 removed that exemption. The 

act relating to underground waters, as amended 

in 1949, provides that: "It shall be an ex- press condition of each appropriation of 

ground water acquired under this act that the 

right of the appropriator shall relate to a specific quantity of water and that such right 

must allow for a reasonable lowering of the 

static water level at the appropriator's 

point of diversion; and provided, that in 

det.ermining such reasonable lowering of the 

static water level in a / particular area, the 

state engineer shall cohsider the economics 

of pumping water for the general type of 

crops growing and may also consider the effect 

of water use on the economy of the area in 

general." 

As a matter of public policy, in order to 

insure the largest beneficial use of the 

natural supply the State assumes that when 

the water levei declines ·the burden is upon owners of existing wells, ultimately, to 

protect their yield by the necessary pumping. It is the policy of the State Engineer to 

restrict further diversions·: (1) when the 

safe yield has been reached, (2) when the 

water table has been lowered to a level from 

which the pumping lift approaches the maxi- mum economical limit, or (:5) when further 

diversion will adversely affect the economy of the area in general, whichever occurs firs.t. 

. New Hampshire 

No specific statutory control of diversion 

of water use. The riparian doctrine is followed for surface water. "Municipal water 

companies may appropriate water from streams, 

springs, ponds, or subterranean sources wi.thin 

the boundaries of the town." Presumably if 

such an appropriation injured a riparian land:-· owner the right could be acquired by condemnation and payment of damages. 

New Hampshire originated the American rule 

of reasonable use for ground water in 1862, 

in a case (Bassett v. Salisbury Mfg. Co.) ' 

that involved not use of ground water but 

flooding of basements as a result of a rise 

of the water table caused by construction 

of a power dam and raising of the river level. 

The rule has since came to be followed in a considerable number of States where the common law is in force. 

New Jersey 

The Division of Water Policy and Supply of the Department of Conservation and 

Economic Development has general authority 

to supervise the use and development of all 

waters of the State and to regulate the con- struction and maintenance of dams. Public 

water supplies have been under the jurisdic- tion of the State since 1907 for surface 

waters and 1910 for ground waters. In 1947 .the legislature extended the control of 

ground waters to all private, domestic, and 

industrial supplies. Two"protected areas" were established in 1947, parts of Middlesex 

and Monmouth Counties and parts of Burlington, Camden, Gloucester, and Salem Counties; within these areas permits are required for new diversions of ground water in excess of 10~,000 gallons per day unless the well was in existence, and was equipped with a pump o·f as great or greater capacity, .prior to 

passage of the act- In protected areas, 

permits limited to a definite number of 

years are the rule, an~the return of water 

to the ground is being required in many cases. In l947 also was passed a law re- quiring the licensing of well drillers and 

the obtaining of permits for wells more than 

100 feet deep. ' 

New Jlexico 

The doctrine of prior appropriation is 

exclusive for surface water and for "the . waters of underground streams, Channels, 

artesian basins, reservoirs, or lakes, having reasonably ascertainable boundaries." Inasmuch as all ground-water bodies have boundaries reasonably ascertainable by scientific 

investigation, the law may be considered to 

apply to all ground water; however, control 

is exercised only in basins declared by the 

State Engineer. The ground-water law was first passed in 1927, declared unconstitutional in view of .the constitutional 

prohibition of extension of legislation by 

reference, and then reworded and passed in 

19:51. The apwropriation procedure for 

"watercourses has been exclusive since _ passage of the Water Code in 1907 but was in use before that time. 

Spring or seepage water arising from an unknown source belongs to the landowner, 

when suCh water does not run beyond his 

property. If it discharges into a defined 

watercourse, it then becomes. public water 

subject to appropriation. 

The ground-water law is applied to areas designated by the State Engineer. It was first applied by .the stopping of additional 

development of artesian water in the Roswell 

artesian basin, the overdevelopment of which 

led to passage of the law. Additional 

development of shallow ground water in the 

Roswell Basin has now been stopped; also, 

development in the Salt Creek and Macho 

extensions of the basin. Development has 

also been stopped in the Mimbres Valley, 

· 
' . 

SUMMARY OF EXISTING WATER LAW 

the Lea County Basin in the High Plains, the 

Hot Springs artesian basin, and the Animas 

Basin; and the Virden Valley, Carlsbad, 

Rstancia, and Portales Basins have been 

declared. 

A 1935 law regulates the drilling, casi~g, 

cementing, and equipping of artesian wells to 

prevent loss or waste of water. 

A law passed in 1949 requires licensing of well drillers and prohibits any person owning or controlling land in basins delineated and declared by the State Engineer 

to permit the drilling of a well other than 

by a licensed driller. It prohibits also 

the application of water to land not having a valid wate~ right for the purpose to which 

applied. 

The ground-water laws were upheld in a decision of a State District Court in 1949 

(New Mexico v. Lanning, Dority, and Wiley; three cases heard simultaneously.) The case was appealed to the State Supreme Court, where 

the decision was upheld. It was then appealed 

to the United States Supreme Court, which in 

Kay 1951 refused to hear it. 

New York 

The Water Power and Control Commission has 

general supervision over the water-power re- sources of streams in which the State has a proprietary right or interest. It also is 

required to carry on investigations 1n order 

t.o complete for the entire State a comprehensive plan for the conservation, development, regulation, and use of the waters in each of 

the principal watersheds. Diversion for 

power or other commercial or manufacturing 

:r>urposes of waters in which the State has a proprietary right or interest may be made. by license. 

River-regulating districts may be organized for regulating the flow of rivers when re- quired by the public welfare, including 

public health and safety. River-improvement 

districts may be created to improve the 

channels, construct dikes, or regulate the 

flow of rivers for protection from damage by floods. 

The Commission and its predecessors have 

had general authority since 1911 over public 

water supplies. In ·1933 the authority was extended to cover ~ew ground-water diversions on Long Island for all purposes except agri- cultural, where the well is equipped with a pump having a capacity of more than 100,000 

gallons per day. In 1935 a law was passed requiring ~icensing of well drillers on Long 

Island, and furnishing by them of well data. 

As a part of the regulation of ground-water use on Lone Island the Commiss~on generally issues permits for wells used for cooling 

with the requirement that the water be re- turned to the ground through a closed system .. Between January 1936 and Jariuary 1949 an · average of 15 million gallons per day was so returned. 

Accelerating the natural flow of mineralwater wells is tmlawful~ a~ are the waste of 

certain classes or mineral waters and the 

drawing of mineral waters solely for the purpose ofextra.c ting carbon dioxide·. In certain cases permits are required for allqwing 

springs to flow at certain rates, and flow at a rate that will deplete a spring is not permitted except in special cases. 

North Carolina 

No specific statutory authority for con- trol ·or diversion of water. Permits required for wells drilled for oil and gas. Regulations of the Department of Conse~vation and 

Development require that abandoned oil and 

gaswells be plugged so as to protect groundwater supplies. Legislation providing for 

licensing of well drillers, furnishing of 

records to the State, construction of wells 

to prevent underground leakage, prevention 

of waste from flowing wells, plugging of 

abandoned water wells, etc., considered in 

the past but not yet enacted. 

North Dakota 

According to the report of the National 

Resources Planning Board (1943, pp. 106, 123-

124) and that of Hutchins (1942, pp. 237-239), 

both riparian and appropriation doctrines are . in force and riparian rights have not been 

substantially limited in· favor .of appropriative rights. The State constitution provides 

that "all flowing streams and natural water courses shall forever remain the property of 

the State for minin~, irrigating and manu- facturing purposes. A 1913 statute declares 

that the landowner owns water standing thereon or flowing over or under the surface but not 

forming a· definite stream. The two reports cited refer to legislation as late as 1939. 

The compilation of North Dakota water laws 

issued by the Water Conservation Commission 

in 1945 states, in citing laws of 1905j 1913, 

and 1939, that "all waters within the limits. of the State from all sources .of water supply belong to the public and are subject to 

appropriation for beneficial use." No refer- ence to riparian rights could be found, but one to "vested rights" may refer to riparian 

rights and there is a z>eference to "riparian rights" in the index that was not accompanied 

gy any section 1n the text of the compilation. "Percolating water" apparently is not mentioned 

1n the compilation. It appears, however, 

that omission or such references from the com- pilation does not niean that riparian rights and private ownership of "percolating water" 

.have been abrogated. 

Use of water for irrigation is limited to 

1 cubic foot per second for 80 acres. Any 

J?ossessor of land may divert water from a minor stream" --one flowing less than a third of a cubic foot per second for the 

greater part of the year-..;without making an appropriation. 

The State has authority to control waste 

of water from flowing wells and has achieved a considerable reduction of waste, largely 

through an educationa~ program. This would seem to apply the American rule of reasonable use at least to artesian watezts. 

An act making waters of "underground 
/ \ 

( 

26 WATER LAW 

streams, channels, artesian basins, reservoirs, 

lakes and other bodies in the ground" public 

waters subject to appropriation for beneficial 

use, subject to vested rights, was considered 

in 1945 but apparently was not enacted. 

~ 

Riparian rights for surface water and 

"definite underground streams" and common-law 

rights for "percolating waters." Ground water 

is assumed to be percolating unless shown 

otherwise. American rule of reasonable use applies, though the State conservancy law has 

been construed not to allow recovery of damages for los.s of "percolating waters" as a result of construction of a conservancy project. · 

Counties are authorized to establish, 

within themselves or in cooperation with other 

counties, the State, or the Federal Government, 

complete systems of water conservation and 

flood control: to prevent floods, regulate 

stream channels, reclaim wet and overflowed 

lands, provide for irrigation where needed, 

regulate stream flow and conserve the water, 

divert or eliminate watercourses, provide 

water for domestic, industrial, or public use, 

collect and dispose of se~ase or other liquid 

wastes, and arrest erosion (along the Lake 

Erie shore line). Water rights existing before formation of a district are recognized; additional waters made available through activities of the district belong to the district and rights to them can be leased, sold, or assigned in return for reasonable compen- sation, those who have been assessed a part of the cost of construction of facilities 

having the first right to purchase suCh waters. 

The district may claim riparian rights also 

where it is a riparian landowner. In granting ri;_)1ts to use of waters of the district, pref- erence is given first to domestic and municipal use, second to industrial use, steampower production, and cooling uses! and third 

to irrigation, hydro-power product on, rec• . reation, fisheries, and other uses. 

The Superintendent of Public Works also 

has authority to "construct projects to conserve the waters of the State," including the acquiring of necessary lands, waters, 

and riparian rights by purchase or condemnation. 

The Ohio Water ~upply Board was formed 

in 1941, was succeeded in 1945 by the Ohio 

Water Resources Board, and is now known as the Division of Water of the Department of 

Natural Resources. Its duties are to study the water resources of the State. In 1945 

it was given authority to regulate the 

drilling, operation, maintenance, and abandonment of water wells, mainly to prevent con- tamination of the ground waters of the State. 

Waste of water from flowing wells is pro- hibited, as is use of wells for disposal of 

sewage or other contaminating waste. Artificial recharge is encouraged, subject to the 

supervision of the Board and the State Department of Health. 

A 1945 regulation required filing of loga of water wells, except farm and domestic wells. 

In 1947 the provision was broadened to include 

all wells •. 

There has been same agitation for-control 

of diversion of ground water in certain 

heavily pumped areas but some opposition 

also. State officiais believe that regula- tion will be achieved thro~h the action of 

local interests and will be at the local level. 

Oklahoma 

Both riparian and appropriation doctrines 

appear to be applied to surface streams, 

springs forming streams, and "definite underground streams." "Water running in a definite stream, for.med by nature over or under 

the surface, may be used by him as long as it remains there; but he may not prevent the 

natural flow of the stream, or of the natural 

spring from whiCh it commences its definite course nor pursue nor pollute the same." 

But, "Water running in a defined stream over or under the surface, or a natural spring from whiCh a stream commences its definite 

course; is public water subject to general 

appropriation." 

. Cases involving riparian rights have re- lated to uses other than for irrigation, and 

it is not certain how use of water by a riparian landowner for irrigation would be 

viewed in relation to an appropriative right acquired before the riparian began his use of the water. 

Prior to 1949 "percolating water" belonged 

to the owner of the land beneath which it 

occurred; it was subject to the American rule 

of reasonable use, but not necessarily to · apportionment ( correlative rights) • In . 1949 a ground-water law was passed that is based on appropriation of "percolating water" 

but excluding water in "underground streams 

with ascertainable bed and banks •" The basis· of the law is stated t.o be public policy "to conserve and protect the ground-water resourc~s 

of the State and for that purpose to provide regulations for the taking and use of ground 

water." Nonwasteful domestic and stock use is exempted. Priority of rights relates to 

established dates of. beginning of beneficial use prior to the effective date of the act, 

and of date of receipt of applications by the State Planning and Resources Board after 

the effective date. An appropriative right is lost by nonuse for 2 years. · The Board · can .establish "ci'itical ground-water areas,!' 

but it is not stated that re~lation by the 

State is limited to suCh areas, and apparent- ly the right a 1n. ·any ground-water basin can be adjudicated, and withdrawals stopped in reverse order of priority to bring the · withdrawal within the annual replenishment, 

at the initiative of the State. 

The Board has the authority to require reuse or return to the ground of water pro- posed to be used for cooling, to require cer- tain spacing of wells to bring about the 

most orderly withdrawal of water, and to re- quire methods of well. construction adequate 

to prevent salt-water contamination of freshwater aquifers. 

Difficulties in application of a law 

based on prior appropriation to areas of 

r 

• 
\ 

SUMMARY OF EXISTING WATER LAW 2'1 

limited recharge but present or potential 

heavy use, such as the Oklahoma Panhandle 

(High Plains), are discussed in the text of 

this report. 

Oregon 

The riparian doctrine for surface water 

has been essentially abrogated in favor of 

the appropriation doctrine. The water code 

of 1909 limited riparian rights to the extent 

of actual beneficial use prior to the passage 

of the act or within a reasonable time thereafter by means of works then under construction. Certain streams and a section of the 

Columbia River are exempted from appropriation in order to preserve the natural flow 

for scenic and other purposes. Springs that are not the source of watercourses belong to 

the landowner, except where appropriated on public land prior to entry. Springs that 

discharge into natural streams are subject 

to appropriation. 

"Undergrou,n(l 1:1treams, channels, artesian 

basins, reservoirs, or lakes, the boundaries 

of wht chnnl!l'y-~asonably be ascertained" in 

the area east of the summit of the Cascades 

have been subject to appropriation for beneficial use since 1935, in the same way as surface waters. "Percolating waters" in the area west of· the Cascades, and any such waters 

east of the Cascades in bodies whose boundaries are not "reasonably ascertainable," belong 

to the landowner. For the area west of the 

Cascades, a State Supreme Court decision involving the 1909 law held thatit if the existe"nce of an "underground stream can be 

reasonably ascertained without excavating, 

such as by growth of tules, application may 

be filed with the State Engineer for the 

appropriation of such water. This would be 

considered not the appropriation of underground water but the appropriation of surface 

water under the 1909 water code. 

As of May 1951, a comprehensive groundwater code, to supplant the law of 1935, was being draf~ed by a committee of the Oregon Reclamation Congress, with the technical 

assistance of the Geological Survey. 

Pennsylvania 

Law passed in 1937 appropriates to the 

Commonwealth all unappropriated flowing (surface) waters except private springs and private water supplies, and sets up a pr-ocedure 

for appropria t ion of water for public-supply 

purposes. Private use is not mentioned. 

Bills were introduced into the 1949 General Assembly providing for: (1) licensing 

of well dri lle rs and furnishing of well rec- ords to the State, and (2) regulation of 

ground-water withdrawals to prevent waste and 

pollution. The conservation bill would have 

exempted domestic wells and supplies of 50 

gallons per mi nute or less being used 

beneficially a t the time of passage of the 

act. Beneficial us es of more than 50 gallons 

per minute in existence a t the time of passage 

could be continued, but the users and those 

commencing nonexempted uses in the future 

would have been requi red to file declarations 

of use with the Water and Power Resources 

Board, receiving in return a 11 certificate of 

beneficial and reasonable use" if the Board 

considered the use beneficial and reasonable; 

others making declarations would receive only a "certificate of use." Ground-water con- servation districts would be declared where 

the withdrawal was exceeding or threatening 

to exceed replenishment; permits would be 

required for new withdrawals of more than 50 

gallons per minute. The bills did not pass. 

Rhode Island 

No specific statutory control of diversion of water, except that the owner of a dam may not "detain waters for more than 12 

hours out of 24, except Sundays, when re-, quested by the owner of a dam within one mile 

below on the same stream to let the natural 

flow of the stream pass his dam. 11 The Black-' 

stone Valley Board was created to cooperate with a similar agency in Mas.sachuaetts to 

regulate pollution, stream flow, and the 

floods in the watersheds of the Blackstone 

and Seekonk Rivers. 

South Carolina 

No specific statutory control of diversion of water. Comprehensive new waterpollution law approved May 4, 1950; applies 

to all water, surface and underground, and to 

practically all polluting substances. 

Language might be interpreted to include 

prevention of contamination of fresh-water 

wells by water from saline aquffers. Legislation to require control of waste from flowing wells has been considered but not yet· enacted. 

South Dakota 

Both riparian and appropriation doctrines 

apply to water of surface streams and 11 defini te 

underground streams." Subject to vested 

riparian rights and prior legal appropriations, water of watercourses is subject to 

appropriation for beneficia 1 use. Riparian 

rights accrue at the time of settlement of 

the riparian land; they are lost only by 

adverse use, grant, or actual abandonment. 

"Percolating water" and springs arising 

from it belong to the landowner. He does 

not own a spring arising on his land and 

forming a watercourse, but he has a riparian right to use of the water, and may also make an appropriation of it; another may appropriate it if he does not, but ~ubject to his 

riparian right and any other existing ripa?-

ian rights or prior appropriations. 

Artesian water is subject to appropriation 

under the general provision (section 61.0122) 

that "anyone intending to acq11ire the right 

to the beneficial use of any waters shall •• ·" 

(proceed in accordance with the provisions 

governing appropriation). Authority exists or formerly existed to regulate artesian 

wells to prevent waste, but at least the 

provision requiring the capping of "wild" 

wells was repealed in 1941 as not enforcea le. 

It is provided that "each landowner by virtue 

of the existence of subterranean waters on his property which communicate with similar 

waters on adjacent lands, has certain rights 
28 WATER LAW 

in the same and certain civil obligations to 

all sharing in such under-ground water ••• " 

The State Engineer under certain conditions 

may order a change in the location of a proposed artesian well to minimize interference 

with others. A considerable reduction in 

waste from flowing wells has been achieved, 

largely by means of education rather than 

arbitrary enforcement. 

Tennessee 

No specific statutory provision for con- trol of diversion of water in the State as a whole, except for condemnation of water rights 

needed in the diversion of water for power production. 11 No dam, appurtenant works, or other 

obstruction affecting navigation, flood control, or public lands or reservations shall be con- structed, and thereafter operated or maintained aero s s, · along or in the Tennessee River or any of its tribut aries until plans for such 

construction, operation, and maintenance shall 

have been submitted to and approved by the 

board." (Board of Directors of the Tennessee 

Valley Authority). 

A law passed in 1~49 creates the Memphis 

and Shelby County Board of Water Control, 

with "powers ' to regulate, limit and prohibit 

the drilling of wells in Memphis and Shelby 

County; to regulate the exploitation and con- sumption of artesian water under the land in 

said City and County ••••• " The authority extends to the fixing of the size and depth 

of wells and the quantity of water pumped from 

them; to require a permit for the drilling of a · well and to grant or refuse such a permltJ 

and to exempt wells of less than a certain 

size and depth, or all wells in certain areas. All municipal wells, existing or future, are exempt from the provisions of the act. 

Somewhat similar regulations were estab_. 

lished for the City of Memphis by ordinance in 

1935, modified in 1940. 

-Both riparian and appropriation doctrines are applied to surface streams and the "underflow" of streams and lakes-. Domestic uses take precedence over irrigation and manufacturing uses. Subject to these domestic rights of others, a riparian· owner is entitled to a reasonable use of the stream for irrigation, but his right extends only to the ordinary 

flow and underflow, not to flood water. 

Water in excess of the reasonable requirements 

of riparian owners, including flood water, is 

subject to appropriation. Under the statute 

of limitations an appropriator may acquire an exclusive right by adverse use as against a riparian owner. 

Springs that form streams are subject to 

the law of watercourses; those originating from 

"percolating water" and not the sources of 

streams belong to the landowner. "Percolating 

waters" are subject to the English rule of 

absolute ownership, except that _waste of 

water from flowing wells is prohibited. 

Under the law, water-improvement districts 

(largely irrigation) and water-control and 

improvement districts (irrigation, drainage, 

water supply, flood control, sewage dispo~al, 

power development) can be formed, and have 

wide powers. 

A law passed in 1949 authorizes the forma• 

tion of such districts, also with wide powers, for "conservation, preservation, protection and recharging and the prevention of waste 

of underground water." "Defined subterranean 

streams" and the "underflow" of rivers are exempted. An "underground water reservoir11 

to be regulated must hav_e ascertainable 

boundaries and must be capable of yielding at 

least 150,000 gallons per day to a well. 

Wells producing less than 100,000 gallons per 

day are not to be regulated, so far as withdrawal is concerned. Three areas in the High 

Plains have been designated "underground water 

reservoirs." 

n 1e State Board · of Water Engineers, created 

in 1913, is the agency of the State to administer laws relating to water; this Boa-rd ·has 

authority to investigate ground-water resourc- es, and to regulate the flow of artesian wells 

and to prevent waste therefrom; the provisions as to waste are unenforceable owing to the 

inadequate definition of "waste" contained in 

Art.icle 846, Texas Penal Code, which iri substance excepts the use of water for any lawful purpose from the definition of 11 waste. 11 

The appropriation doctrine is exclusive 

in Utah; rinarian rights have never been recog- . nized. Appropriations are made exclusively by application to the State Engineer. All 

water rights are adjudicated by the courts, -· at the request of water users or at the r~quest 

of the State Engineer upon petition from five or more, or the majority of, water users on a stream or in a ground-water basin. Under 

the 1935 ground-water code all ground water 

became subject to the law of appropriation. 

The State Engineer may hold hearings to 

determine ground-water rights on his own motion, and must do so if petitioned by at 

least a third of the ground-water users _in a designated area. If he determines that the 

supply is insufficient he must apportion the 

water in accordance with existing rights. 

Claimants of vested rights. to uses existing 

before passage of the ground-water act were required to file. nqtice of such claims; failure 

to do so was prima facie evidence of intent 

to abandon the right. 

The State Engineer has authority to prevent waste of water from flowing wells. Well 

drillers are licensed and bonded. 

The State Engineer has the authority to 

recommend the establishment of water-conservancy districts designed to develop and make 

the best use of the water res our ces of the 

designated districts. 

Vermont 

No specific statutory control of diversion 

of water. Riparian rights for surface water 

and common-law rights for ground water. 

1 
' 

:! 

1 

SUMMARY OF EXISTING WATER LAW 29 

Virginia 

No specific statutory control of diver• 

sion of water, except for power production, 

including provision for the condemnation of 

riGhts. Rfparian rights, limited only to reas onable use in view of the similar rights 

of others, apply to surface water; the English 

rule applies t6 ground water. The State 

Water Control Law of 1946 sets up the State 

Water Control Board, with authority to regulate pollution of all water, surface or underground. A 1948 law requires notice to the 

State Geological Survey of the drilling of 

any water, oil, gas, or explorato~' well, 

and the furnishing of information on such 

wells, including water-level data. Domestic 

and farm wells, driven wells-, and wells not more than 50 feet deep aPe exempt. 

Washington 

Both riparian and appropriation doctrines 

apply to surface waters, under the code of 

1917, but the riparian doctrine is now of 

subordinate importance. Riparian rights 

attach only to waters that can be used beneficially on or in connection with riparian 

lands within a reasonable time, the excess being subject to appropriation. Thus protection of the right of a riparian owner requires 

that he show that he is now making or in the near future will make beneficial use of the 

water. Riparian rights in navigable waters are not recognized, nor may a riparian owner, 

under his riparian right, store water for 

future use. In ~ecent years few, if any, 

water u&ers have depended on riparian rather 

than appropriative rights to protect their 

diversions. 

The ground-water code of 1945 makes 

appropriation for beneficial use the exclusive means of acquiring a right to the use of 

ground water. Existing rights are recognized; 

also recognized is the s u perior! ty of priO'I' 

appropriations of surface water to which 

ground water sought to be appropriated is 

tributary . · A prior use of surface water under a riparian rather than an appropriative right 

presumably would be protected also against a subsequent ground-water appropriation, 

but it is not stated in the ground-water 

code what relation unused riparian rights 

would have to proposed ground-water appropriations. Possibly the same rule would be 

applied as to surface water, under the state6 nurpose "of extending the application of such 

surface water statutue to the appropriation 

and beneficial use of ground waters within 

the state"; that is, a proposed appropriation 

of ground water would be regarded as superior 

to a riparian surface-water right not yet put 

to use, unless a showing was made that the 

surface water could be nut to beneficial use under the riparian right within a reasonable 

time. 

The State Supervisor of Hydraulics is 

authorized to designate ground-water areas and subareas, and also depth zones, each to 

contain so far as practicable a distinct body 

of ground water, and to control withdrawals 

within such units in accordance with priority 

of rights. A prior appropriator is entitled 

to have the withdrawals of junior appropriators restricted to such an amount as "will 

mainta :i n and p1·ovide a safe sustaining yield 

in the amount of the prior appropriation." 

Judgment as to the "safe sustaining yield11 

and as to the depth below which the groundwater level shall not be drawn belongs to 

the Supervisor of Hydraulics and the courts, 

and where data are not adequate for such a determination the judgment shall be reserved 

in order to protect the rights of the appropriators .and to prevent depletion of the 

ground-water body. 

West Virginia 

No specific statutory control of the diversion of water. Riparian rights for surface 

water Pnd connnon-law rights for ground water. 

Wisconsin 

Rip~rian rights apply to surface water; 

however, diversions by either riparians or nonriparians require a permit from the State, 

with certain exceptions such as diversions 

from "any spring or creek within the limits 

of a public highway." Surplus waters may 

be diverted temporarily to maintain the level 

of any navigable lake or stream, or non- surplus waters if the consent of the riparians 

is obtained and public rights ·are not injured. 

(Surplus water is defined as water not being 

beneficially used; it probably includes that 

above "normal" flow.) Riparian landowners are entitled to a declaratory judgment affirming their rights. The Wisconsin Valley 

Improvement Association has authority to 

construct dams, reservoirs, and other structures to regulate the flow of the Wisconsin 

River and its tributaries, including authority. 

to purChase or condemn riparian rights. 

As of January 1, 1936, the State Board of 

Health has authority, under a comprehensive 

Well Drilling Sanitary Code, to registe,r 

well drillers and to control the construction of all wells to insure protection of the 

sanitarY quality of the water. The code, 

and regulations issued under it, provide detailed instructions for the construction, 

finishing, sterilization, and operation of 

approved types of wells. The code is widely 

regarded as a model. 

A 1945 law gives the State Board of Health authority over new, additional, or reconstructad· wells or combinations of wells for use on one property which have a capacity of 

100,000 gallons per day or more. If the 

Board of Health finds that the proposed 

withdrawal will adversely affect the availability of water to any public utility furnishing water to the public, it may refuse to 

approve the withdrawal, or grant limited 

approval. 

Wyoming 

The riparian doctrine has never been 

recognized, and appropriation is the exclusive 

method of acquiring a right to the use of 

surface water and, prior to 1947, probably 

of "definite underground streams." Springs are classed as surface water and are subject 
30 WATER LAW 

to appropriation. A 1919 decision of the 

Wyoming Supr3me Court on "percolating waters 11 

applied the English rule of absolute owner- ship. However, in 1947 a law was passed that 

applies the appropriation doctrine to all 

underground waters. Reasonable use is the 11 basis, the measure and limit of the right to ' use underground water at all times." Domestic, 

culinary, or stock water on ranches or farms, or that used for irrigating a garden up to 4 

acres, is exempted. Claims to uses starting on or before December 31, 1947, are to be 

filed with the State Engineer. Persons beginning use after December 31, 1947, are not 

required to obtain a permit but must file a "registration" in the Office of the State 

Engineer within 30 days after completing 

construction. The State Engineer is authorized 

to determine the yield of theyarious groundwater reservoirs of the State; ;upon com- pletion of such a survey, the State Board of 

Control proceeds with the adjudication of the 

rights. The priority·of rights acquired on or before December 31, 1947, relates to the 

date of completion of the well or other structure; those after that date to the date of 

filing of the registration in the State 

Engineer's office. 

IIIT.-IlUP . SIC., lASH., D.C.,UU