University of ConnecticutOpenCommons@UConn

Special Reports Connecticut Institute of Water Resources

March 1967

Lectures on Law in Relation to Water ResourcesUse and DevelopmentWilliam C. Kennard, ed.Institute of Water Resources

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Recommended CitationKennard, ed., William C., "Lectures on Law in Relation to Water Resources Use and Development" (1967). Special Reports. 2.https://opencommons.uconn.edu/ctiwr_specreports/2

Report No. 2

LECTURES ON LAW IN RELATION

TO WATER RESOURCES USE AND

DEVELOPMENT

March 29, 1967

INSTITUTE OF WATER RESOURCESof the University of Connecticut

Lectures on Law in Relation

to Water Resources Use

and Development

March 29, 1967

Edited by

William C. KennardInstitute of Water Resources

The University of ConnecticutStorrs, Connecticut 06268

Expenses involved in conducting the seminar lectures and inpublishing this Report of the Institute of Water Resources weremet with funds provided by the United States Department of theInterior as authorized under the Water Resources Research Act of1964, Public Law 88-379.

FOREWORD

As part of its ongoing program to develop a greaterknowledge of and understanding about water re-sources use and development, the Institute of WaterResources sponsors lectures, open to the public, ona broad range of topics.

The growing interest in laws concerning waterrights, both private and public, has caused Stateand Federal Agencies, universities, private com-panies and lay organizations to initiate studies andto prepare publications on the subject. As it de-veloped plans for the seminars to be given duringthe 1966-67 academic year, the Executive Committeeof the Institute felt that the matter of legal problemswas so important that four lectures should be de-voted to various aspects of this topic.

Four outstanding individuals, representing diversebackgrounds and interests, agreed to participate inour program. The first lecture, "Legal Contributionsto Water Resources Development" was given onOctober 19, 1966 by Dr. F. J. Trelease, Dean, Col-lege of Law, The University of Wyoming, Laramie,Wyoming; the next lecture, "Role and Problems of aPublic Agency in Administering Water Legislation",was given on November 16, 1966, by Mr. J. J. Curry,Chief Engineer, Connecticut Water ResourcesCommission, Hartford, Connecticut. The third,"Water Legislation - The Industrial Viewpoint"

was presented on December 14, 1966, by Mr. I. LairdNewell, President, The Henry Souther EngineeringCompany, Hartford, Connecticut, and the final lec-ture, "Altering a System of Water Rights - LookBefore You Leap", was given on January 18, 1967,by Mr. W. M. Champion, Assistant Professor of Law,University of Mississippi, University Park, Missis-sippi.

The legal profession can indeed make importantcontributions to the proper use and development ofour water resources. As Dr. Trelease pointed out,"The function of law is to regulate the relationsbetween men or groups of men. In playing this rolethe law serves essentially a dual purpose. It pro-vides a mechanism, the lawsuit, for the solution ofconflicts after they have arisen, and it furnishes aguide - the rule of law, for the ordering of futureconduct."

Appreciation is extended to the four speakers notonly for their excellent talks but also for agreeingthat their lectures could be published as this specialbulletin of the Institute.

William C. KennardDirectorInstitute of Water Resources

LEGAL CONTRIBUTIONS TO WATER RESOURCES DEVELOPMENTpresented October 19, 1966 by Dr. F. J. Trelease, Dean, College of Law, Univer-sity of Wyoming, Laramie:

A lot of water has gone over Connecticut's damssince I used to spend vacations as a child at StonyCreek and Madison. Practically all 'of my adult lifehas been spent in the mountains and plains of thewest. My knowledge of eastern, and Connecticut,water problems consists only of a few second handgeneralizations. What can a westerner contributetoward the solution of these problems? The west-erner has always lived with water shortages, withconflicting demands for what water there is. Con-flicts, if not literal shortages, are now appearing inin the east. I will give a short description of west-ern water law, and let you find in it what you canthat may be of value to you.

First let me say a work about the function thatthe law performs in water resource development.

The function of law is to regulate the relationsbetween men or groups of men. In playing this rolethe law serves essentially a dual purpose. It pro-vides a mechanism, the lawsuit, for the solution ofconflicts after they have arisen, and it furnishesa guide, the rule of law, for the ordering of futureconduct. The general goal of all law has been statedby John Dewey, the philosopher, who describes thelaw as "...a plan for organizing otherwise indepen-dent and potentially conflicting energies into ascheme which avoids waste, a scheme allowing amaximum utilization of energy." Roscoe Pound, thegreat student of jurisprudence, expressed much thesame thought in this way:

"What we are seeking to do and must do in acivilized society is to adjust relations andorder conduct in a world in which the goods ofexistence, the scope for free activity, and theobjects on which to exercise free activity arelimited, and the demands on these goods andand these objects are infinite. To order theactivities of men in their endeavor to satisfytheir demands so as to enable satisfaction ofas much of the whole scheme of demands withthe least friction and waste has...been whatlaw makers and tribunals and jurists havebeen striving for..."By and large, the law at any particular time and

place represents the will of the majority for encour-aging action deemed desirable by them and for dis-

couraging or forbidding action thought to be in con-flict with the public interest. By encouraging someactions, but discouraging others, a state may use theactions of individuals to reach its own desiredgoal. There are few laws that are self-executing inthe sense that they control all conduct and leave nochoice of action to the individual. Much law doesnot literally regulate conduct in the sense of re-quiring or forbidding certain action, it instead pro-vides an area of free choice, setting outside limitswithin which a person may act as he chooses. Manyof these laws, such as those relating to property andcontracts, unobtrusively form the basic frameworkof our society.

Western water law follows this pattern. The goalof the state, in adopting the law governing the useof water, is to obtain the maximum benefits, bothsocial and economic, from the use of the resource.The law is designed to permit people to do somethings that will advance this aim, and to preventpeople from doing things that would be contrary tothe maximization ideal.

The water law of the 18 western continentalstates, including Alaska, is the doctrine of priorappropriation. Its two cardinal principles are thatbeneficial use of water, not land ownership, is thebasis of the right to use water, and that priority ofuse, not equality of right, is the basis of the di-vision of water between appropriators when there isnot enough for all.

The history of this doctrine is a fascinatingchapter in the story of the growth of American lawsand institutions. At the midpoint of the 19th cen-tury the common law of waters had definitely crys-tallized into the law of riparian rights. At this sametime, the doctrine of prior appropriation spontane-ously developed in the west to meet the needs ofpioneers who came to the vast open spaces insearch of gold, land and homes. Although it hassometimes been attempted, by doubtful analogies,to trace the doctrine from rather obscure early pre-riparian English law, or from the early Massachu-setts Mill Acts, or from Spanish law, the peoplewho originated the doctrine were not versed in theseby-ways of legal learning. They were miners whocrowded into the gold fields of California in 1849.

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Swarming over lands previously uninhabited, theytook the gold with the tacit permission of the trueowner, the United States. After a lawless period,the miners, essentially law-abiding people from theeastern and mid-western states, organized "miningdistricts" to create some semblance of order on thethen ungoverned public domain. These de factogovernments promulgated rules and adopted customsregulating mining claims, and of equal importance,the right to use water to wash the gold from thegravels in which it was found. They establishedessentially the same rule for ownership of miningclaims and for the right to use water. This rule wasknown as prior appropriation-the law of the firsttaker. This law was soon adopted by the courts. In1855 the holders of claims that lay far from a streamdiverted the stream over to their diggings. Theowners of later claims lower on the ncw-dry streambed sued to require the stream to flow down in itsnatural channel. The Supreme Court of California,in deciding the case, rejected the common law ruleor riparian rights, since neither party had any titleto the land. The court, taking notice of the existingpolitical and social conditions, held that customs ofthe miners which had become firmly fixed should befollowed. Among the most important of these, itwas said, was that of protecting the rights of minerswho by prior appropriation had taken the water fromits natural beds and by costly artificial works hadconducted it for miles over mountains and ravines tosupply the needs of gold diggers. The court quotedno precedents: there were none.

When permanent settlers took up land for agricul-tural purposes and recognized the need for irrigation,they adapted to their purposes the water law evolvedby the miners. It was a doctrine especially wellsuited for a pioneering economy based upon the set-tlement of vacant lands. The first settler to come in-to a valley chose his land. If irrigation water wasneeded, he dug a ditch from the stream to his land.Whether his land was located on the stream or notwas immaterial, since there was no one to object tohis use of the water. The second settler to followhim into the valley had to respect the first settler'shomestead and take second choice of the land, andhe had to respect the first appropriator's right to thewater and irrigate his lands out of what was left.

Let us look at this law of prior appropriation ina little more detail. While there are minor differencesin each state, and much of the law is now statutory,these state statutes have a common origin and arefairly uniformly construed. Other uses of water, inaddition to mining and irrigation, were recognized asuseful and beneficial by courts and legislatures. Ap-propriations may be made for domestic use, sincewater is necessary to sustain the life and health ofman. Cities and towns may appropriate water formunicipal purposes, to supply the municipality andits inhabitants with water for domestic uses, irriga-tion of lawns and gardens, sanitary purposes and for

use in shops, business establishments and factories.The use of water for sawmills and ore reductionmills were purposes for which early appropriationswere allowed in connection with mining, and todaywater may be appropriated for any form of manufac-turing or industrial use. The use of water for the pro-duction of electricity is everywhere recognized asuseful and beneficial. Water has been put to manyother uses, such as railway use, the production ofsteam, refrigeration, cooling, the manufacture of ice,and for fish hatcheries. In modern times, a newbeneficial use, recreation, has come to the forefront.

Other aspects of the law of prior appropriationshould be noted. The amount or size of the rightdoes not vary with the amount in the stream. Anappropriation is always stated in terms of the rightto take a definite quantity of water. Direct flowrightsare stated in terms of the maximum current or flowthat may be diverted from the stream, storage rightsare expressed in terms of the total volume of waterthat may be stored. In general, the amount of waterthat an appropriator is entitled to divert or store ismeasured by the beneficial use to by served, be theneed for sufficient water to accomplish the object ofthe water appropriation.

The place of the use is not limited to the stream-bank, as in riparian law. With few exceptions, an ap-propriation can be made to use the water at anyplace where it is needed. Diversions out of the wa-tershed have been permitted and protected from thebeginnings of the doctrine of prior appropriation. Di-versions have been made in one state for use inanother.

The allocation of water among appropriators ac-cording to priority may need some explanation. On atypical western stream where there are many irriga-tors with water rights initiated at different times,there may be water for all while the mountain snow-packs melt and the stream is high. As the quantityof water decreases, during the dry summer, the di-version works of the appropriators are shut off ininverse order of priority. The last ditch is the firstclosed, and the earliest is never closed. The rightof the senior appropriator extends both upstream anddownstream. He may take water needed by a juniorappropriator below him, while the junior appropriatorupstream must permit the water to go past his pointof diversion when it is needed to supply the seniorrights. The burden of shortage thus falls on thosewith the later rights; there is no proration in timesof scarcity. The amount that each appropriator is en-titled to receive remains fixed, if there is sufficientflow in the stream to supply it, and the senior rightsare supplied in full while the junior rights are shutoff completely. But juniors do have rights. Juniorappropriators who take water from a source that hasalready been partially appropriated receive theright to use such water as is not needed by the priorappropriators. The downstream junior is entitledto insist that the senior take no more than his appro-

6

priation allows. An upstream junior may divert waterfor his own use so long as he releases the quantityneeded by the senior and he may make substantialchanges in the regimen of the stream so long as heobserves the senior's fundamental right to the use ofthe water. For instance, he may use the water to pro-duce power, or in some other nonconsumptive manner,and he may even take the direct flow of the streamto which the senior is entitled if he replaces it withstored water or substitutes water imported from an-other source.

An appropriation is private property, and in moststates it can be sold or used by its owner at anyplace to which the water can be transported. Changescan be made not only in the place of use, but alsoin the point of diversion, type of use, time of use, orplace of storage, But the privilege of making suchchanges is subject to the rule that a change mustnot injure the vested rights of other appropriators.

An appropriation is a property right subject toownership, and like land, is usually held in perpetu-ity. However, the right may be terminated if it is notused. It may be abandoned if the appropriator ceasesto use it with the intent not to resume the use, andmost of the western states have statutes which pro-vide for a forfeiture of the right if the water is notused for a specified period, which varies in dif-ferent states from three to ten years.

So much for the law. That's not all of it, but itdoes give us a thumbnail sketch, which we may nowanalyze to see what part this law has played in con-serving and developing the resources of the West.We may characterize it by saying that the stateshave worked out a law under which a person by hisown actions may carve out for himself a private prop-erty right from a publicly owned asset. Let us see ifwe have attained the goal of maximum benefits that Istated earlier, whether this give-away of natural re-sources has in fact conserved and developed westernwater resources.

In the water rights field, the goal of maximum ben-efits could conceivably be reached by complete andautocratic state control of all water resources, butthis would mean that all water users would be regu-lated at every step by state officials, a situationgenerally regarded as distasteful by Americans. Itwould mean that all decisions on who could use wa-ter, what purpose it could be used for, when it couldbe used, would be made by a bureaucracy acting inthe best interests of the state, with only secondaryattention to the interests of the individual. It wouldnot allow for nor make use of the tendency of the in-dividual to act in his own best interest. It would notfit into our Anglo-American background, traditionsand institutions.

American institutions are for the most part basedupon the theory that individuals with a wide range offree choice can make their own decisions within lim-its set by governments, that each will attempt toachieve the largest possible benefit for himself, and

that the total result of all of this individual actionwill tend to produce maximum welfare for the state ornation. In essence, we in the West have treated wa-ter like land. The nation gave away its land also,yet who will say that the Homestead Act, under whichthe mid-western prairie and the "Great AmericanDesert" have been turned into fertile farms, was amistake?

In the western states the aridity of the climateand the scarcity of water were limiting factors ondevelopment from the start. Yet no planners preparedblue prints for its best use. Instead the water wassimply given to any and all who would put it to abeneficial use. The miner used it to unlock the cof-fers containing the mineral wealth of the mountainsand streams, the farmers turned the desert into richcroplands, the rancher took the water for stock waterand to irrigate the hay with which he could feed hiscattle through the winter, cities brought in suppliesthat enabled them to grow, railroads, power com-panies, manufacturers and other industries receivedthe water that enabled them to operate. The pioneerwesterners recognized that development in their pri-vate interests could also be development in the pub-lic interest. Water was used to produce wealth. Theincrease in the wealth of the citizens, the secondaryeffects of the resulting increases in their purchasingpower in spending in the community, in employment,tax revenues, and in goods made available for useby others, increased the wealth of, and developed theresources of, the western states and of the nation.

Let's look at one feature of this law that someobservers, but not practitioners, of water law havequestioned. This is the definiteness of the waterright in terms of priority and of quantity, which en-ables the appropriator to in effect build a fence a-round his water right, much as he fences his land tokeep off trespassers. This is the feature that throwsall of the burden of shortage upon the junior appropri-ator. Some have questioned this as undesirable, andasked whether the equal sharing of the riparian doc-trine might not be better. Yet in its unique fashionthis rule has led to maximization of benefits. Inthe West it was early seen that an equal share of wa-ter that was insufficient for all would lead to par-celing out the waters in shares that were sufficientfor no one. The rule of priority is not as harsh as itsounds. It guarantees a firm supply to all those forwhom the supply is sufficient; and these people havebeen able to build an agriculture unmatched in sta-bility in any place where dependence is placed onnatural rainfall. What of the poor junior appropria-tors? This law has encouraged them to develop wa-ter resources as no other rule would have. If the lawwere based on the concept of reasonable sharing ofa common supply, and that supply was not sufficientfor all demands, legal competition, not economic com-petition would occur for the available free supply.The "owners" would fight for greater shares of the

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same water on legal, not economic grounds. Butwhere the rights of the claimants can be described soas to differentiate the water to which each is enti-tled, and one water user is given a superior rightthat can be protected, the later users will have tospend money to develop water from alternate sources,instead of trying to persuade a court that they shouldbe given some of the water covered by the earlierright. In the west this is what is done by describingthe right in terms of priority and quantity of diver-sion. When senior appropriators had taken all of thedependable flow of the western streams, further de-velopment was inaugurated by junior appropriatorswho built dams to store spring floods, built largerdams that would store the supply of good years a-gainst future droughts, or brought water from longdistances across or through mountain ranges fromother basins where the supply exceeded the local de-mands. Although some over-development did takeplace, and some junior appropriators today have only"flood water rights", they adjust to this just as doesthe owner of marginal land. When water does come,it is a bonus. But for the most part, state and fed-eral laws have provided organization and capital tofirm up the supply, to reduce the physical insecurityof the junior right, and to give all water users a firmright in a firm supply.

Another question sometimes asked by observersof western water law is whether it was a mistake togive the rights in perpetuity. Suppose, they ask, thatwhile irrigation agriculture may have been the bestuse of water in pioneer days, but today the water isneeded by industry or a city? Should not the waterbe reallocated so as to produce the greater benefitstoday?

Of course it should. But this does not mean thatthe industry or the city should be allowed to go tosome official or board and persuade him or it thatthey could make better use of the water, and thattherefore the water should be taken away from thefarmer and given to them. Again, let me use my anal-ogy to land. Suppose today a farm on the outskirts ofthe city could be better used as a factory site or asan airport. Do we run the farmer off the land, on thegrounds that he is making an inefficient and waste-ful use of a natural resource? Not at all. The indus-trialist simply offers to buy the land, tenderingenough money to make it attractive to the farmer toleave. The city does the same, though it has the ad-ditional power to condemn the land to insure itstransfer at a fair price, if the farmer holds out for anexorbitant sum. This same process holds true fortransfers of western water rights currently held byirrigators, when industrial or municipal uses are morevaluable. If the industrialist or the city cannot paythe price, then by definition the transfer of the waterto them would not produce greater benefits. If in factit will produce greater benefits, the value to the pur-chaser is greater than the value to the seller, andthe transfer can be made as in the case of the pur-

chase of land. There is no reason to take the waterwithout compensation, and impoverish the farmer, bydestroying his investment and his expectation builton the farm as a going concern. In a few of the wes-tern states, there are some restrictions on the trans-fer of water rights, but for the most part it is a prop-erty right which can be sold like any other. Themovement of water to its highest beneficial use isinsured by economic forces, not by governmentalintervention.

I would not want to mislead you into thinking thatthe modern western water law is 100% pure laissez-faire. Although the economic forces of self interestthat lead man to get the most out of his environmentand of the market where relative values can be com-pared, are the basic operative mechanisms of priorappropriation, as long ago as 1890 the State of Wy-oming, under the leadership of its first state engi-neer, Elwood Mead (for whom Lake Mead behindBoulder Dam is named) recognized that there couldbe exploitation of water resources that benefited theindividual but were not desirable for society as awhole. Mead invented the permit system of appro-priation, under which an intending appropriator mustgo to a state official and receive a permit, whichwill be granted only if there is unappropriated waterin the source, if the proposed use will not interferewith the vested rights of others or if the use doesnot threaten to prove detrimental to the public in-terest. Fifteen states now impose this public interestlimitation on appropriators, and while these powershave been seldom used (since as we have seen mostappropriations of water have been in the public in-terest) state officials have chosen from competingprojects the one which promises the greater benefits,and have denied a permit for a small single purposeproject that would make infeasible a large multi-purpose project, or applications for projects thatwould have harmful side effects upon other waterusers or upon the public, or have issued the permitssubject to conditions that will prevent such harm.

Of course, all of this is foreign to Connecticut.The riparian doctrine is the fundamental law of wa-ter in the eastern United States, and in this state.Riparian rights are a form of real property, a part ofland law. It is the ownership of the land that givesthe right to the use of water and the correspondingpower to resist uses by non-riparians or excessiveuses by other riparians. In older times the nature ofthe right was thought to be almost an absolute, thefundamental right of the riparian was to have thestream flow as it was accustomed to flow in nature,unimpaired in quality and undiminished in quantity.In more modern times we have evolved the reasonableuse rule, and today the great majority of Americanstates apply the theory that the fundamental right ofthe riparian is to the reasonable use of the stream,and to be free from unreasonable interferences withhis use. This permits a substantial amount of diver-sion, and a number of different uses of water have

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received approval-domestic use, household gardens,livestock, irrigation, the generation of power, andalmost any application of water that fulfills a needor desire of man, so long as it is reasonable and canbe exercised with due regard to the rights of otherriparians. It should be noted that under the ripariansystem, a city is not usually regarded as havingriparian rights of reasonable use, yet it must deriveits rights from the riparians, that is, the city mustpurchase or condemn the water rights of the riparianswhose uses are hurt by the municipality's.

Some have criticized this doctrine as nonutilitar-ian. But the reasonable use rule is quite functional,and not even the older natural flow rule is properlysubject to this criticism. It was developed in thepast century, in the early industrial revolution, whenwater power for mills and factories was perhaps theprincipal use of smaller streams. The rule thatstreams should be left within their banks passed thewater down from one mill dam to the next, and thusserved the dominant elements of the economy. Mod-ern industry has different needs for water, and todayif an industrialist needs water for a plant, he can buyland on the river bank and procure his factory siteand water right in a package deal. Up to now, theriparian right doctrine has worked quite well for theeast, primarily because of the abundance of water.It is usually contrasted to the appropriation systemas an alternate means of allocating water, but onlya tiny fraction of eastern water rights has ever re-ceived judicial allocation. In actual operation, thelaw of riparian rights has permitted the large majorityof the most logical water users to proceed freely,without restriction, and without friction or litigation.The legal processes of the lawsuit have been heldin reserve, as a sort of a "fire fighting" mechanismfor settling the few disputes that arise.

But I will guess that modern pressures of in-creasing population and increasing industrializationare putting quite a strain on the doctrine that served19th century rural populations and small industriesquite well. As a basis for investment, riparian rightsare an imperfect form of property. The flexibility ofthe reasonable use rule means that the water userwill not always be protected from infringement of hisuse by other riparians who seek a reasonable sharein the source. He does, of course, have a firm rightwhich he may defend against non-riparian users andfor which cities must pay. But a number of uncer-tainties beset him, and these could reach a pointwhere investment is discouraged, or where locationof factories is governed by availability of largequantities of unclaimed water, though this may addcosts that produce no return, and thus be a departurefrom our optimization ideal.

Perhaps no feature of riparian law has receivedmore adverse and critical comment than the conceptthat the waters are reserved for the benefit of thelands along the stream, and that rights to the use ofwater are special privileges of the owners of such

lands. The obtaining of the maximum benefits of theuse of water is a goal that is obviously not alwaysreached by using it nearest its source. It is arguablethat progress can be accommodated by sales andtransfers of riparian lands with their attached waterrights. This is an imperfect market, however, for insuch a sale, the water right is removed one stepaway from the market. It is the land that is bid for,not the water. Yet, the land may be an unwanted bur-den imposing extra costs. Furthermore, the argumentthat these riparian transfers adequately provide foreconomic flexibility assumes a mobility of the enter-prise that may not exist. A farmer desiring to im-prove his yield by irrigation cannot move his landto the river bank. A mining operation might need wa-ter for processing or at the mine mouth, and manyother locational advantages such as access to rawmaterials and labor might require the water, ratherthan the enterprise, to be moved.

Riparian law is not very well suited to the trans-fer of water rights separate from the land. It is aneven more imperfect form of property in its trans-ferability and salability aspects. A riparian rightcannot literally be sold as such to a non-riparian.All the latter can do is buy his peace from riparians.Perhaps water rights pass on the market in this crudesense, that the former use yields to the new in ex-change for money. But the "grant" of the riparianright is regarded as binding only between the parties.It stops the grantor and his successors from com-plaining of the non-riparian use, but it has no effectagainst other riparians. A riparian with an extralarge "unreasonable" demand that cannot be metbecause of an upstream "reasonable" riparian usemight buy out that single riparian, but he would re-ceive no assurance that others would not make simi-lar demands on the freed water. A riparian with avery large use, or a non-riparian, might foreclose alawsuit from a downstream riparian by buying himout, but thus closing the mouth of the trouble makerwould give no assurance that others would not stepin to make objections.

I would like to suggest that a more serious chargelies against riparian rights as a basic system of wa-ter law. It allocates the water to riparians-privateindividuals who own property. But the public hasmany non-ownership demands on water-recreation,including fishing, swimming, boating, etc.-uses thatinvolve no withdrawal from or damming of the stream.They are protected only in "public" waters-tradi-tionally limited to navigable waters, and for the mostpart navigable waters receive a restricted definitionthat limits protection of such public uses to only thelargest streams. The public has other interests, foralthough many of these privileges attach to privateriparian rights, much public use of private watersstill takes place.

The public has many interests other than recrea-tion that may be harmed by private uses of water,and such private uses are frequently accompanied

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by "spillovers" ('no pun intended), external effectsthat harm others or impose "social costs" on otherpersons. Riparian doctrines, enforced in two-partylaw suits, are not very good vehicles for protectingthe public interests. Nor are market transactions inwater and water rights. Purchase and sale are notvery efficient methods of allocating water to publicuses, since the public is often widely dispersed andeach individual has so small an interest that there islittle incentive to take legal steps to protect publicrights or even to join hands into an effective groupfor economic protection of public rights or to pur-chase water for public use from the private interestswho hold the water rights.

What is needed is public control of the inceptionof water uses. In allocating rights to use, publicregulation may take the form of restricting the usesfor which rights will be granted, restricting the per-sons who may acquire rights, and restricting therights granted both in scope and duration. Undesir-able uses should be prevented from ever arising, notstopped after the harm is done. Uses prima faciabeneficial which entail substantial possibilities ofunfavorable effects may be conditioned to permit thegood and eliminate the bad. One of the most impor-tant aspects of controlling the initiation of uses isthe power to deny uses, to reserve the water for moredesirable purposes. The power to deny permits foruses that involve diversion from, or interruption of,a stream is also the power to reserve water for usein place, usually by the public. In this fashion themost effective protection can be given to site val-ues, recreation values and fish and wildlife habitat.

Similarly, water use laws of this nature couldplay an important role in the current major problemrelating to Connecticut waters-pollution control.Water quality is a function between water quantityand the load of pollutants carried. A new use oflarge quantity of water, upstream, that depletes theflow, holds back the flow, or transports the flowacross a divide may change downstream dischargesof effluents from tolerable levels to intolerable pol-lution. Laws may be needed to control withdrawalsso as to leave minimum flows in the streams, damsmay need regulations requiring them to store waterfor release during periods of low flow in order tomaintain the minimum flow for transportation anddilution of sewage and wastes, where full purifica-tion is impossible or too costly.

Today, at least seven eastern states have statu-tory controls on riparian uses. They require permitsfor the exercise of riparian rights much like westernappropriation permits. The water officials use thisdevice to control water use and to prevent publicharms. Two states have substantially adopted thewestern law of prior appropriation and permit the wa-ter to be used where needed, and no longer requirethe water to be used on the river banks. Several oth-er eastern states have adopted statutes permittingpersons who store water to use the stored water with-

out regard to riparian law.The law of underground water forms a somewhat

different pattern. Ground water seemed so unlike wa-ter in streams that historically it was treated differ-ently. The first rules were of ownership. The land-owner was regarded as owning the water underneathhis land, and was permitted to take whatever quantityhe could capture. A number of state courts then im-posed requirements that the owner's use of groundwater must be reasonable, and related to the over-lying land. Primarily, this rule protected rural usersfrom the cities which invaded the countryside toobtain large supplies of well water. A few stateshave applied a rule of correlative rights similar toriparian doctrines of reasonable sharing. Many east-ern states have superimposed substantial statutoryregulation on the exercise of these common law doc-trines. A number of western states now have statutesadapting rules of prior appropriation to ground water,and attempt to hold withdrawals to some concept ofthe safe yield, and to regulate mining of unrechargedground water.

Connecticut has one large river that drains onlya small part of the state, and many small coastalstreams whose branches cover the rest. It is a thick-ly populated industrial state, yet one with a gooddeal of agriculture and much gracious countryside.Apparently, in the past, too little thought has beengiven to one problem, water quality, so that todaycorrective cleanup of the streams is the major neces-sity. Let me ask how much better the situation mighthave been if a really effective pollution control lawhad been in effect in the beginning. And let me askif the same reasoning does not today call for a lawregulating water withdrawals and use, rather thanletting these processes proceed to the point wherereal conflicts and problems arise and will requireexpensive corrective measure.

Let me suggest some of the problems which mayarise in Connecticut, for they have long existed inthe West where water is short and they are occurringwith greater frequency throughout the eastern states.Growing cities find themselves dependent on streamsand aquifers that are inadequate for present and fu-ture demands. New industries determine their loca-tion on the factors of availability of land, transporta-tion and labor, and find that water is more flexibleand can be supplied from afar. Farmers look withenvy on their neighbor's irrigated riparian fields,and seek for their lands this form of weather control.Rural residents abandon their individual wells andseek some form of central rural water distributionorganization.

Engineers find physical solutions for these prob-lems. They pump or divert large supplies from avail-able streams. They make transbasin diversions fromsome nearby or even faraway watershed more gener-ously supplied or with smaller demands. They builddams to equalize flows throughout the seasons ofthe year, or the flows of good and bad years. They

10

inject stored or transported water into existing well-fields, recharging dwindling supplies of ground wa-ters with surface water.

But these solutions create other problems. InConnecticut one real one would be the legal one-thewater rights of the diverters, storers and importersmight be tenuous and insecure. Other problems arepractical-large diversions or reservoirs may in-flict harm on prior users. They may impair fishingand recreational, even scenic and historical values.They may affect quality control, as I mentionedearlier. Property owners might be affected by reser-voirs, not only from direct flowage, but also by theeffect on site values of fluctuating water levels.

A good comprehensive water use code could makean important contribution to Connecticut at this time,and insure that the development of her water sourceswould proceed along desirable lines. It will be arguedby some people that since Connecticut's water re-sources are quite large, and since so little of herstreams are presently being used, there is now no"need" for a water law. But if Connecticut waitsuntil serious disputes arise, if legislation is de-layed until emergencies demand it, people will behurt. Expensive and unnecessary litigation willarise, uncertainties will be created, investments willbe lost. Wyoming enacted the first effective wateruse regulation law in 1889, Alaska the newest in1966. Both states were at the time young and un-developed, but their laws are blueprints for develop-ment. Nor is the abundance of water a reason for nottaking action. Mississippi, which has between 50and 60 inches of rainfall per year, now has a com-plete appropriation water code similar to the westernmodels.

In states where a "wait and see" attitude hasprevailed, the pattern has often been a haphazardand piecemeal treatment of particular water problems,

urged by persons with special interests who are ableto capture the ear of busy legislators. Such legis-lation can be unfair in its preferential treatment ofparticular activities and disregard of other groupswith similar or opposite interests. It can actuallyhinder overall economic activity more than it helps.In particular, the interests of the public have too of-ten been forgotten is such piecemeal legislation. Onthe other hand, in states which have considered theoverall problem, a comprehensive water code hasproven to be a most effective way of encouragingeconomic growth. Such a code permits all the variouswater-related activities to grow at their own speed,and in their own direction but always with some con-sideration for other activities and interests.

Such a code should not impose unnecessary andburdensome restrictions on industries or the people.It should permit the acquisition of private propertyrights in water, secure enough to encourage develop-ment and flexible enough for economic forces tochange them to better uses, and subject to publicregulation only when private economic action doesnot advance the public interests. It need not take theform of pure western prior appropriation. Many dif-ferent forms of law could accomplish these objec-tives. Connecticut's law might preserve and build oncherished institutions, local practices, and com-fortable old phrases. But legislation giving adminis-trators and judges rules and principles that will aidpeople to take steps toward obtaining maximum bene-fits from water resources, using the initiative of pri-vate enterprise, and imposing regulation only to pro-tect interests of the public and prevent harm toothers, would surely set Connecticut's footsteps to-ward the ultimate goals of the law and the obtainingof maximum benefits from her water resources.

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ROLE AND PROBLEMS OF A PUBLIC AGENCYIN ADMINISTERING WATER LEGISLATION

presented November 16, 1966 by Mr. John J. Curry, Chief Engineer, ConnecticutWater Resources Commission, Hartford.

The topic "Role and Problems of a Public Agencyin Administering Water Legislation" when first as-signed did not reveal itself as being as meaningfulas it proved upon further consideration. So I willhave to credit Professor Kennard for the assignmentof a topic so worded by chance or design that it ledme to develop several points that I can present foryour consideration today. It appears to be the ordi-nary type of program wording which most representa-tives of public agencies would attack with an over-loaded enumeration and explanation of the problemsfaced in their specific area of administration. Themain objective of such an approach would be toevoke sympathy for the speaker in the performanceof duties for which he is generally adequately paid.I have followed this tact on occasion and probablyhave been able to acquire a reasonable share of thelistener's sympathy.

This title, however, places the role of the publicagency before its problems and it makes one realizethat the problems create the role. Today I will try todevelop the role of our agency in a modern Connecti-cut society. This role arose from the necessity ofhandling the problems of water inherent in our his-torical development. If it be a necessity that therole be designed so as to handle such problems, anunderstanding of the role should make enumerationof the problems unnecessary.

The humid temperature climate of Connecticut issurprisingly similar to the maritime climates enjoyedby residents of the British Isles and Western Europe.Naturally there is a correlation between our attitudeson the relation of waterways to private property. Insuch climates it is difficult to define an ownershipof a parcel of land of any respectable size withouthaving it border on or contain within its boundariesa watercourse. The waterway is not a unique propertyin itself but is merely an essential element in thevalue of the land. One's rights in the land naturallyincluded rights in the waterway. The water, how-ever, differs from the land in being mobile. It pro-vides its value to more than one parcel. Actuallypart of its value is this mobility. If all propertyowners are to enjoy this item of the property value,the water in the watercourses must be allowed torun in its wonted manner. The property owner and

the community develop if the property is maximizedby developing its appurtenance, the water. If theland owner makes any reasonable use which doesnot affect the flow to a neighbor in quantity or qual-ity the value to each land parcel should be max-imized. Inherent in this utopian theory are two con-verse realities. First, that the value of one parcelcould be increased to the loss of another parcel ifan unreasonable use of the water were undertaken;and secondly, that the parcel depreciated might nothave any use for the right misappropriated.

It is true that most cases in law considered thephysical use of the water, the changes of regimen orvolume of flow or the elevation of the water surface.However, just as valid within the definition is anunreasonable use which adversely affects the chem-ical quality of the water itself. Such quality can beaffected by processing the water or by discharginginto it other water dissimilar in character. For thissecond type of unreasonable use, it appears thatadjoining parcel owners were either less affected orless interested in protecting their rights. In Con-necticut by the end of the 19th century many seriousdepreciations in the quality of our waters existedpresumably because affected property owners hadnot sought redress against unreasonable uses.

This general disinclination to defend one's prop-erty against this type of invasion existed in spite ofa thoroughly friendly attitude of the courts towardsuch appeals as were actually made. The extent ofthe court's inclination to preserve property againstunreasonable water use is illustrated in a veryimportant decision in 1895 against the City of Dan-bury. Even though the polluter in this case was acity which was acting for a public purpose, under anauthority of law, and in the exercise of its govern-mental duty and not withstanding that the damage toan individual resulting from such public action wouldbe small, the court maintained that the common in-terest required any riparian to exercise and enjoyhis rights in the waters of a running stream in such areasonable manner as not to injure unnecessarily therights of any other owner.

Because the general public as well as theriparianparcel owners has an interest and is affected by the

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depreciation of water quality it was apparent thatGovernment must act to protect the common rights.As in all such matters the first approach of the pub-lic to exert its rights is through its representativesin the Legislature. In 1886, the public used thelegislative method in its simplest form, namely: topass a prohibitive statute. This statute prohibitedthe City of Meriden from carrying out a plan to dis-charge its sewage into an adjacent waterway andled to the construction of the first sewage treatmentplant in the state in 1891. As the problems becamemore numerous and more complex, the approach oflegislative action by a simple prohibitive statute wasno longer practical. A broader approach through leg-islative action was obtained by passage in the Gen-eral Assembly of an act to establish a Commissionto study the problem. This was done in Connecticutin 1897. Subsequently, when there was a permanentagency of the state, the State Board of Health, whocould carry out such investigations, the Legislaturein 1913 directed a study by this operating adminis-trative group rather than a special Commission. In astill later action, the Legislature realized that theproblem of industrial waste was somewhat outsidethe ken of the Board of Health so it provided anadvisory board to help the regular agency investigatethis type of pollution. Such committees and theirsuccessors finally concluded that it was necessaryto have a permanent administrative section of theState Government to protect the general publicinterest in all matters having to do with pollutioneither from sewage or industrial waste. The WaterCommission which was the predecessor of the pres-ent Water Resources Commission was establishedin 1925, being one of the first such legislativeacts on these matters in the Country.

The role of the Water Resources Commission,therefore, is one that has developed step-by-step fromthe proliferation of problems of the unreasonableuse of waterways by one riparian to the detriment ofother riparians or the general public. Few cases havebeen referred to the court or to the Legislature sincethe establishment of the administrative agency. TheCommission apparently has taken over these prob-lems and has to a satisfactory degree protected theaffected interests.

Only an administrative agency can perform therole because fundamentally it arises from problemsof such number that they cannot be satisfactorilyhandled by legislative or judicial action. The roleis played in two parts. The first part is to prevent orto discover and eliminate unreasonable uses. This isa complex engineering problem and can only be han-dled by an accumulation of skill and experience ap-plicable to this specific business. Other adminis-trative agencies are necessary because skills inother disciplines are required. For instance, thespecial skill of accounting would be necessary tocontrol banking operations. Certain skills in biologywould be necessary to develop Fish and Game Re-

sources. Certain skills in botany or husbandry wouldbe necessary to control agricultural development. Butin the Water Resources field the necessary skill isthat of engineering even though ultimately associ-ated basic sciences are helpful and necessary. Onlyan engineer thoroughly skilled in the manner of han-dling water and the methods of alleviating or elimi-nating undesirable parameters of quality can answerthe question of whether a specific use is reasonableor whether it unnecessarily restricts the reasonableuse by others.

The assimilation and proper handling of all theactions which would have had to be taken by af-fected riparians or established public or private in-terests is a major and important task related to fun-damental property rights. Once assumed by the stateit must be thoroughly performed. There must be anarm of the Government or at least a finger of theGovernment which educates to prevent many prob-lems which would arise; which negotiates to preventor ameliorate a problem which has arisen; whichdirects the correction when a problem has arisen inspite of negotiation; or appeals to court when thedirective for correction has not been honored. In allof these steps a considerable technique based on theengineering knowledge is necessary. Even the re-ferral to court which might appear to be a simpleaction of sending the file to an attorney, requirestechnical witnesses to help present the case, and theaccumulation of the technical file which supports thecase.

It should be noted in Connecticut that besidesour work in negotiations and direction, we have takenthe ultimate enforcement steps on many cases. Sev-eral actions have gone through Superior Court andappeals have gone to the Supreme Court. Severalcases involving large municipalities have gone tocontempt citations. These actions in number andimportance probably exceed the efforts of any otherstate in this field.

The second part of the role is to develop feasiblemethods and economic means by which riparians canmake an ever increasing use of their water rightswithout detriment to others. These methods andmeans are the mechanical and structural devices thatallow scientific knowledge to be used. It means acontinuous development and improvement of Con-necticut's techniques and current knowledge of im-provements in the art by others. This then, to protectthe property rights and to develop methods to elimi-nate the need for such protection in spite of in-creased use, is the two part role of a public agencyin the pollution abatement field of Water Resourcesmanagement. All the current problems which couldhave been enumerated come from the necessity ofperforming these technical functions.

A very pertinent example of the operation withinthis role is provided by the current work of the WaterResources Commission resulting from certain de-

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mands by the public for improvelnent of water qualityas expressed through the Clean Water Task Force.This expression of the public desire clearly indi-cates that the public anticipates a water qualitywhich can only be achieved through the treatment ofall discharges by so-called secondary methods orbetter. It so happens that the science of pollutionabatement has been developed by others, with a defi-nite contribution from the State of Connecticut, sothat these methods are today well known even thougha few years ago they were not common. Also at thepresent time Connecticut has achieved a couple ofdecades of experience in the operation and the eval-uation of different types of such secondary plantsand has gained the necessary experience in thespecial handling of these effluents for further re-finement. Because of this continuity of experienceConnecticut is prepared to carry out the desire forstream qualities resulting from these kinds oftreatment.

In the early days of the operation of a pollutioncontrol agency in the state, little was known ofmethods of treating industrial waste to a similar de-gree. The Connecticut agency through projects atYale and Wesleyan and to a lesser extent at thisUniversity researched these problems and developedsome of the basic methods. Although such work isnow largely done in better funded projects of theFederal Government and the larger states who en-tered the business later, we can agree with the state-ments of the Clean Water Task Force that there aremethods available for the satisfactory treatment ofthe industrial wastes found within the state. To bein a position at any time to protect against what thepublic currently identifies as unreasonable uses, thestate must maintain, in being, an administrativeagency with a continuity and background in the en-gineering aspects of the pollution abatement prob-lem. It is, I believe, a corollary that such a rolecould not be carried out by any other Governmentalprocess.

If we can go far afield from pollution abatement,but stay within the area of Water Resources manage-ment, I believe that we can make similar points a-bout the administration of flood protection measures.One would suspect by the amount of material thathas recently been published on the subject thatmost of the country has suddenly realized that theelimination of flood damage is much more of a prob-lemthan the mere construction of flood control works.Recent compilations have shown that the annualflood damages are increasing despite the fantasticinvestments in such water control structures. If theFederal Government or the states which operateflood control programs had allowed the problems todefine their role such a realization would have beenachieved sooner.

Beyond the construction of control works the oth-er part of the problem of reducing flood damage isadministrative control and although it is now getting

its full recognition nationally, the development ofthis concept in the State of Connecticut was parallelto the achievement of administrative control of wa-ter pollution. Here again the role of an agency suchas the Water Resources Commission in this field a-rose from the development and proliferation of realproblems. Once again we must start by recalling thatbecause we have a humid temperature climate, wehave high annual rainfall. It follows that we can alsoexpect short-term periods of excessive rainfall.

One of the uses of a water right accruing to theriparian parcel is the opportunity to realign thewatercourse or to build a dam so as to change theelevation of the water or its natural regimen of flow.This again is a proper use if it is reasonable anddoes not effect reasonable uses by other riparians.The Mills Act provided for compensation to allowmore extensive water uses of this character beyondthe rights connected to a single parcel. However,rules of compensation generally applied only to nor-mal conditions. Adjacent riparians were not inclinedto protect themselves against injury only related torare periods of flood flow. Floods were relegated tothe category of "Acts of God" and without propertyowners acting to protect themselves, many uses hadaccumulated in Connecticut by the beginning of theTwentieth Century that would be proven unreasonableat the time of a flood. The state did experiencefloods of considerable magnitude in 1927, '36, '38,'49 and twice in 1955. These experiences uncoveredand exposed the real problems of flood controldamage.

Theoretically, a riparian either alone or with aneighboring parcel which adjoined at the center ofa stream could produce a total obstruction to theflow. The unreasonable character of such an ob-struction, a dam, could be easily identified and pro-tection against or compensation for obtained by theupper riparian owner unreasonably affected. However,lesser obstructions, encroachments, the detrimentaleffect of which would be recognizable only duringthe short duration of periodic high flows were placedin great numbers particularly in locations of highproperty values throughout the State. Hundreds of en-croaching structures such as bridges were placed forpublic purposes and with public funds. Successiveparcels using these structures as indicators one af-ter the other maximized their value at the expenseof the waterway. Each development being equallyreprehensible chose not to defend itself. When thefloods came a large share of the property losses tothese parcels were diverted to the public. Control bya government agency was necessary to define whatkind of flood was reasonable to consider in makingwaterway encroachments and to determine what kindof encroachments would be unreasonable for such aflood.

After the '38 floods the state expressed an in-terest in the construction of water control structures,but it was apparent by the late 1940's that the pub-

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lie also wished to consider the problem of keepingthe waterway channels open so that they couldcarry a reasonably anticipated flood. Again the firststep was through the Legislature. It provided indivi-dual municipalities the authority to establish linesalong the streams beyond which riparians could notencroach. However, this authorization of an exten-sion of their powers was not used to any degree bymunicipalities.

After the '55 flood, the Legislature in facing theflood problem had to consider why it had not beenused. In the first place few of the streams of con-cern were within confines of one or two municipal-ities. There would be difficulty in setting a reason-able system of restrictive lines if it were not donein neighboring communities at coincident times.Secondly, it was also apparent that the setting ofsuch lines depended on the engineering capabilitythat could not be anticipated in a municipal officeorganized to solve more ordinary day to day prob-lems. Undoubtedly, there was also the realizationthat such property restrictions were not handledeasily within a local political situation. At least anaction by a state agency would be more uniform anddetached.

The Legislature, therefore, directed that the Wa-ter Resources Commission should establish suchlines. The definition of the program desired by theLegislature was not entirely clear from the wordingof the Act. Little specific direction was given tothe agency probably because a Legislative body doesnot have the necessary assistance to delineate sucha technical problem. They did, however, in theirdeliberations, indicate the results they wished toobtain by administrative control, to maintain a high-way to the sea for flood waters. It was also apparentthat they were talking of alleviating all problemsfrom floods such as 1955 or in other words, largefloods.

Taking this rather vague directive, it was the jobof the Commission to adopt an operating procedurefor all watersheds so that all riparians throughoutthe state should receive equal treatment. First, asystem had to be developed based on past experienceto develop floods of similar character for all water-sheds. Luckily in controlling the safety of dams, atechnical computation had been devised which wasadmirably suited to provide this criteria flood for allwatersheds whether they had been gauged or not.

The lines, of course, must take into accountexisting conditions. A theoretical symmetrical chan-nel would not be a satisfactory basis for a restric-tion on property use. The lines must be based on theactual flood water elevation. The lines must alsobe capable of location on the ground so that futurearguments about the compilation could be easilysettled. The techniques for determining what typesof structures would be permitted within the linesmust be stated.

To work under these general concepts, the Com-mission developed a set of policies and proceduresto clearly define to the general public what was tobe accomplished by the legal restriction. These pol-icies and procedures became so common in usageand so satisfactorily understood by the general pub-lic and those specifically affected, that they werecapable of being written into the statute by a subse-quent Legislature.

Once again we see the role of an administrativeagency in water resources as being one whichthrough continuity and experience sets up engineer-ing know-how to solve problems of private riparianowners and the general public and assumes the re-sponsibility of protecting their rights. It seems ap-parent also that no part of Government except anagencyfor the administration of engineering conceptscould perform such a function.

A similar review could also show that our agen-cy's work in administering the control of safety ofdams or the regulation of structures in navigablewaters are roles that developed to solve problems ofgeneral public rights or rights of property ownerswhich because of the manner of development had be-come too numerous or too vague to be handled indi-vidually.

However, if we confine our consideration to pol-lution abatement and flood control we direct our at-tention to the phases of water resource managementprimary to our kind of climate. In other climatesmatters such as public water supply or crop irrigationmight be the major problems which have to be solved.

As I understand your program for this semesterthe four seminars planned will provide a variety ofviewpoints on water law. It may be presumptuousof me to express opinions in that field. My father whohas derived an ability of colorful metaphor from longexperience in human relations described one publicfigure by saying there is damned little he does notadmit to knowing. Assuming a like attitude for a mo-ment I would ask you to keep in mind the more orless orderly development \of the role of our existingwater resource legislation when seemingly logicalarguments are made for radical changes.

Recommendations for radical changes are gener-ally made on the assumption that existing systemshave proven inadequate to cope with a problem.If this be the reason then its degree of truth should'e verified before further consideration. Is a systeminadequate if it has provided control of encroachmentalong hundreds of miles of our major streams, andhas provided treatment of 96 per cent of sanitarywastes almost a third of which is high degree oftreatment, and provided treatment for over 50 per centof our industrial wastes, and has maintained 95 percent of our streams and shoreline free of pollution ata cost to the state of less than $100,000 per year?If these results are unsatisfactory then we shouldconsider whether it is better to act more aggressive-ly under the existing system or find a new and better

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one.One used to risk the onus of blind conservatism

in this field when he did not advocate new ap-proaches. Nowadays there are so many suggestionsbeing made that one is unique and radical when heis not promoting what are assumed to be new con-cepts. However, not all change is improvement evenwhen the immediate result may seem wholly desir-able. Remember the case of the fellow who was mar-ried for thirty years and his wife never knew hedrank until the day he came home sober.

If we consider the possibility of using the theoryof prior appropriation in an area where the prime prob-lem is pollution or flood control we must considerwhether the appropriator's rights shall include theright to pollute the stream as well as divert it orwhether it includes the right to encroach if the onlydamage is to the community and not to a prior user.

Of course we might conclude that we could bettersolve our irrigation problems under such a theoryand pass particular legislation against pollution.However, there are few irrigation problems to solveand such pollution control legislation would not havethe firm basis of our present approach. More impor-tant though how would such fiat legislation allowthe flexibility of ever increasing the use of our wa-ters by the improvement of treatment methods so thatnew uses can become reasonable. Since pollution iswhat the general public presently finds undesirable,administrative control that is tied directly to basicrights should always be on sounder grounds than amere technical description of a current political de-sire. Even a law prohibiting adultery can appear tobe a nuisance restriction unless it is based on thepublic necessity of preserving the social structureof families to alleviate unbearable police and socialservice costs.

Once again does the one who places an unwar-ranted encroachment gain the right under prior ap-propriation? One would suppose that a restrictionstatute could prevent such uses. But, if the right isreal property, can the appropriator be deprived with-out due compensation? The court has agreed that theprevention of an unreasonable encroachment by a ri-parian is a proper use of the State police powers.

It is sometimes pointed out that the quality ofwater could be improved by purchasing a flow to di-

lute pollution. We noted that there are practical sys-tems available to treat all the wastes in Connecticutto provide the quality of water desired. Dilution in-stead of removal is dodging the problem and as amethod must eventually limit development of water-using industries. Not even in a humid climate is wa-ter sufficient for such a use. Structures often aresuggested to delay the ultimate stifling, but theseare generally attractive because they offer the possi-bility of diverting some of the costs to the public. Inany case it violates a simple basic principle thatPresident Johnson recently found necessary to re-iterate, "No one has a right to pollute."

It is sometimes pointed out that the public underappropriation doctrine could garner by purchase orprior claim a flow to improve fishing or other recrea-tional uses. Under our present system the publicneeds only to become a riparian owner to achievesuch use presuming no other is making an unreason-able use.

It will be more and more realized that in our re-gion, in our climate, and in our society an importantuse of small waterways is to add to the value of ourland in a strictly esthetic sense. We like to exper-ience a running stream or a still pond. Water is partof our landscape as much as our rock outcrops andour rolling hills. The old mill dam or its modern re-productions has the same significance as expansivelawns or wooded glens. How does one appraise the im-portance of such an esthetic use against a productiveappropriation? Could any one afford to enjoy suchuses?

There are of course answers to all of these ques-tions. I am sure you either know them or will soonhear them and it is not within the intent of this pa-per to carry out the complete dialogue. It is sug-gested that in appraising the answers one might con-sider whether the questions ever need to be raisedand one might remember that ours is a land of manysteep, small streams, not one of widely spaced largestreams.

At least, in considering the legislative definitionof the role of a water resources agency make surethat it is based on the problems which we must solveto continue our development at an ever increasingrate.

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WATER LEGISLATION - THE INDUSTRIAL VIEWPOINTpresented December 14, 1966 by Mr. I. Laird Newell, President, The Henry SoutherEngineering Company, Hartford, Connecticut.

WATER LEGISLATIONTHE INDUSTRIAL VIEWPOINT

The title of this paper is a very broad one, andwhile we are interested in Connecticut in the lawspertaining to our own area, it will be necessary todiscuss somewhat the background leading up to thestatutes now governing our use of water and thecompetition now developing for the use of water aswell as the technology which is being developed atthe same time.

The natural water purification cycle, rainfall,runoff, evaporation, was known over 2,000 years agoand given in the Old Testament, Book of Ecclesiastes,Chapter I, Verse 7.

"All the rivers run into the sea;Yet the sea is not full;Unto the place from whence the rivers come,Thither they return again."

The distribution of the world's water is asfollows:

Oceans and Inland Seas 97.2 %Icecaps and Glaciers 2.15Liquid Fresh Water 0.63Atomospheric 0.001

It is apparent that if fresh water withdrawn foruse could be discharged to the oceans far enoughfrom the continental shores, treatment of wastewater would not be necessary. However, since ourpopulations are not entirely located within reasonabledistances from oceans and our water use is approach-ing the maximum fresh water available from naturalsources, it is apparent that waste water must bereused and fresh water conserved.

The fresh water is made up of ground water,lakes, rivers and streams, and water in surface soil.The volumes are roughly as follows:

Ground Water 1,000,000 cubic miles(less than 1/2 mile deep)

Ground Water 1,000,000 cubic miles(more than ½ mile deep)

Lakes 30,000 cubic milesSurface Soil 16,000 cubic milesRivers and Streams 300 cubic miles

It is apparent that our lakes and streams have onlya small amount of water compared with the reserveswhich are present underground, and this may be one

of the reasons why so much attention is being giventoday to underground water resources.

The figures given in the table above represent astatic condition but we, as users of water, are moreinterested in the rate of replenishment of the freshwater.

In the United States, the water resources re-plenished by precipitation vary from season to sea-son and location. However, the national averageprecipitation is about 30 inches per year. The aver-age precipitation for Connecticut is about 43 inchesper year. About 70% of the precipitation, on thenational basis, returns to the atmosphere by evapora-tion or transpiration. The remaining 9 inches, or30%, is the potential supply1.

On the basis of volume, the total income fromprecipitation in the United States is about 1,430cubic miles. 70% of this, or 1,000 cubic miles, re-turns to the atmosphere by evaporation or transpira-tion. Stream flow accounts for about 390 cubic milesgoing directly to the oceans, leaving about 40 cubicmiles unaccounted for. It is believed that this lossis underground flow to the oceans. Converting someof these results to gallons shows the following:

National Rainfall 4,300 billion gallons per dayRunoff 1,200 " " " "Withdrawn for Use 269 " " " "Water Consumed 62 " " " "Returned with Wastes 207 " " " "The total dependable supply for the United States

in 1980 is estimated at 515 billion gallonsl. In a re-port on Waste Management and Control recently pub-lished by the Committee on Pollution of the NationalAcademy of Sciences, they have projected, for theyear 2000, that 890 billion gallons, representing two-thirds of the total stream flow, will be returned tothe rivers in a polluted condition.

In our state, the per capita consumption of watermay range from 80 to 120 gallons per day, and engi-neers commonly use 100 gallons per capita for de-sign of water systems. The total United States usageof water is at the rate of 1,600 gallons per personper day. The big difference is, of course, that usedby industry. To make a ton of rolled steel requires110,000 gallons of water. A ton of synthetic rubberrequires 660,000 gallons of water. To make a loafof bread, grow the grain, process and bake, requires

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500 gallons of water; thus, the industrial use farexceeds that of domestic use. From a survey madein 1962 of the metal industry, including metal finish-ing which in Connecticut is one of the major typesof industry, the following table shows the water use:

Million Gallons per Year(Connecticut)

New Water 2,274Water Recirculated 711Total Water Usage 2,985Water Discharged 2,105Water Consumed 169It is apparent that before the year 2000, the com-

petition for water will be so great that recovery andreuse from wastes will be commonplace, and con-servation of new water controlled by law.

In the last few years the public has been educat-ed to the need for legislation to control the use andprevent misuse of water. Since industry is the majoruser, any legislation will be important in planningthe future course for any manufacturer. Federal andstate statutes as well as local ordinances now con-trol to a large extent both the sanitary and industrialwastes of a manufacturer.

While both federal and state legislation pertainsto municipal, individual, as well as industrial prob-lems, they are nevertheless treated differently atthe present time. As an example, in a town wherethere is no municipal sewage treatment plant, orsewer system, an industry must construct, at itsown expense, facilities for sewage disposal. Nogrants, either federal or state, are obtainable at thepresent time for such construction.

FEDERAL STATUTES

In urging passage of the Federal Water QualityAct, President Johnson said "From the Androscog-gin to the Apalachiocola, from the Susquehanna tothe Snake, from the Kanawha to the Klamath, everymajor river system is now polluted." The WaterQuality Act of 1965 was signed into law on October2 and is known as "P.L. 234, 89th Congress." Thepolicy is given as follows:

"Section 1. (a) The purpose of this Act is to en-hance the quality and value of our water resourcesand to establish a national policy for the prevention,control, and abatement of water pollution.

"(b) In connection with the exercise of jurisdic-tion over the waterways of the Nation and in con-sequence of the benefits resulting to the publichealth and welfare by the prevention and control ofwater pollution, it is hereby declared to be thepolicy of Congress to recognize, preserve, and pro-tect the primary responsibilities and rights of theStates in preventing and controlling water pollution,to support and aid technical research relating to theprevention and control of water pollution, and toprovide Federal technical services and financialaid to State and interstate agencies and to munic-

ipalities in connection with the prevention and con-trol of water pollution. The Secretary of Health,Education, and Welfare (hereinafter in this Actcalled 'Secretary') shall administer this Act throughthe Administration created by section 2 of this Act,and with the assistance of an Assistant Secretary ofHealth, Education, and Welfare designated by him,shall supervise and direct (1) the head of such Ad-ministration in administering this Act, and (2) theadministration of all other functions of the Depart-ment of Health, Education and Welfare related towater pollution. Such Assistant Secretary shall per-form such additional functions as the Secretary mayprescribe.

"(c) Nothing in this Act shall be construed asimpairing or in any manner affecting any right orjurisdiction of the States with respect to the waters(including boundary waters) of such States."

This act authorized $150 million per year for thenext two years for use as construction grants tomunicipalities. Up to $1.2 million is authorized fora single project which controls pollution. Unfortu-nately, private industry is not eligible for thesegrants, but industrial waste treatment plants builtand operated by a municipality are eligible. Canham,editor of the Journal of the Water Pollution ControlFederation, Washington, D. C., has interpreted thisAct in a recent article(2):

"1. The governor of a state or a state water pol-lution control agency has the opportunity to filewithin a year (by October 2, 1966) a letter of intentthat the state, after public hearings, will, beforeJune 30, 1967, adopt (a) water quality criteria ap-plicable to interstate waters or portions thereofwithin the state, and (b) a plan for the implementa-tion and enforcement of the water quality criteriaadopted. If the Secretary of HEW believes that thesecriteria and plans are acceptable in accordance withthe definition established in this Law, these criteriaand this plan shall become the applicable waterquality standards.

"2. If a state does not (a) file a letter of intent,or (b) establish water quality standards as outlinedabove, or if the federal government or a state de-sires a revision in the established standards, theSecretary of HEW may, after reasonable notice anda conference of appropriate federal, state, interstate,municipal, and industry representatives, prepareregulations setting forth the water quality standards.

"3. If standards are prepared and published byHEW as outlined in the latter portions of (2) above,the state has six months to (a) adopt standards suit-able to HEW, or (b) petition for a public hearingunder the procedure outlined in the law. The hearingis conducted under a complex arrangement but willbe convened in or near the affected area. The hear-ing board will be composed of five or more personsappointed by the Secretary of HEW. Each state af-fected may select one member and other affectedfederal agencies may select one member each.There may not be a majority of members who are

18

employees of HEW."If the hearing board approves the standards pre-

pared by HEW, they become effective immediately,or the Secretary will modify the standards in ac-cordance with the Board's recommendations at whichtime they become effective.

"4. If the state does neither of the alternativesoutlined in (3) above, the Secretary of HEW shallpromulgate the standards discussed in (2) above.

"5. If violations of the established standards aredetected the Law provides for court action (after anotification to the violators of at least six monthsprior to the initiation of any abatement action) in oneof the following ways: (a) in case of pollution in astate other than that in which the discharge origi-nates the Secretary may request the Attorney Generalto bring suit, or (b) in case of pollution within astate and the damage is confined to that state, theSecretary may, with the written consent of the gover-nor of the state, request the Attorney General tobring suit.

"6. If a suit is brought to court, the standards aswell as the alleged violation are given court review.

"7. The provisions for enforcement as containedin the former Law are continued in the new Act. Thisallows the Secretary, at the request of or in concur-rence with the governor or other state or local agen-cies, to institute the conference and hearing se-quence leading to the same court procedure. Pre-sumably, after June 30, 1967, the procedures addedfor the new Law will supersede in practice the useof this section since standards then become themotivating factor."

All of the states, including Connecticut, havealready filed the necessary documents with theFederal Government, and water quality standardsare being adopted. The New England InterstateWater Pollution Control Commission Standards ofQuality as adopted September 14, 1966, are avail-able from the New England Interstate Water Pollu-tion Control Commission, 73 Tremont Street, Boston,Massachusetts.( 10 ) These standards have beenchanged slightlyfrom the 1959 standards and now in-clude specific limits for coliform bacteria in ClassA and Class B waters and specific limits for pH inall classes of waters.

Since the 1965 Water Quality Act, the control ofwater pollution has been transferred from the De-partment of Health, Education and Welfare to theDepartment of the Interior, and all of the functionsof the Department of Health, Education and Welfareunder the Federal Water Pollution Control Act havebeen taken over by the Secretary of the Interior.Included among these functions will be the sectionsof the Housing and Urban Development Act, theApplachian Regional Development Act and the Pub-lic Works and Economic Development Act, dealingwith water pollution control. The 1966 Reorganiza-tion Plan for Water Pollution Control of InterstateWaters became effective May 6, 1966.(11) The policyof this Reorganization Plan is given as follows: "It

is the policy of the Department of the Interior tocarry out the Federal Water Pollution Control pro-gram in a manner that will achieve high standardsof water quality in the Nation's rivers, lakes,streams, estuaries, and coastal waters. The FederalWater Pollution Control Administration shall mounta vigorous program of prevention, control, and abate-ment 'to enhance the quality and value of our waterresources'. The Administration will function as oneof the major units of the Department and other bu-reaus and offices within the Department shall con-sult with the Administration on all matters withintheir program areas related to water pollution con-trol. Pending the approval of an interdepartmentalagreement to implement the consultations providedfor by subsection 2(k) of the Water Quality Act of1965 (79 Sta. 905), consultations shall be carriedoutwith the Department of Health, Education and Wel-fare on the health aspects of the program. All exist-ing relationships of the Administration with theStates and their water pollution control agenciesand with interstate agencies shall be preserved."In addition, this plan states: "No standard will beapproved which allows any wastes amenable totreatment or control to be discharged into any inter-state water without treatment or control regardlessof the water quality criteria and water use or usesadopted. Further, no standard will be approved whichdoes not require all wastes, prior to discharge intoany interstate water, to receive the best practicabletreatment or control unless it can be demonstratedthat a lesser degree of treatment or control willprovide for water quality enhancement commensuratewith proposed present and future water uses."

Since the transfer of the pollution control ad-ministration to the Department of the Interior, therehas been a departmental agreement between thesedepartments established September 2, 1966.(12) TheHealth, Education and Welfare Department is to giveto the Department of the Interior recommendationson water quality criteria based on health aspects,technical assistance in connection with water pollu-tion control, review and comments on constructiongrant applications, and also conduct studies onhealth aspects of water pollution.

STATE STATUTES

In Connecticut, the control of water and wastesis given to two separate departments. One, the StateDepartment of Health is a single agency and operatesunder the General Statutes of Connecticut Section19-13. As part of the statutes3, the Public HealthCode, Chapter 2, Environmental Health, gives tothe Health Department control over nuisances in-cluding industrial wastes and sewage. In particular,Sec. 19-12-B1, B2, B3, B8, B20, B22 and B50 pertainto industry. Of particular importance is Sec. 19-13-B22 - Manufacturing and other wastes:

"No materials or waste products from any mill,factory, slaughterhouse, rendering or fertilizing

19

works, junk establishment, common carrier or otherindustry or utility shall be stored or deposited soas to cause the surrounding atmosphere, land orwater to be contaminated or polluted in such a man-ner as to injure the public health or create offensiveconditions."

The other agency responsible for the control ofwater and wastes is the Water Resources Commis-sion which consists of seven members appointed bythe Governor. One member is to represent the manu-facturing interests. This Commission operates underthe General Statutes of Connecticut, Sec. 25. Theseare the most important from the industrial viewpointand those pertaining in particular to industry are thefollowing: Section 25-19, 25-20, 25-21, 25-22, 25-23,25-24 and 25-26."

The Commission has the authority by law to es-tablish standards of quality for rivers and streams.They may, in accordance with Sec. 25-21, order aperson, firm or corporation to build a treatment plantto control pollution within limits established bythem provided the cost of construction and operationby the method specified is not unreasonable.

The Commission may order a person, firm orcorporation to have an engineering survey made priorto making an order so that the cost of constructionand operation may be established.

Sec. 25-23 deals with new sources of pollutionand prevents a firm or corporation from creating anysource of pollution not existing in 1925 without firstobtaining a permit from the Commission. Any sub-stantial change in character or volume of the pollu-tion existing before 1925 is considered a new source.

Examples of stream classification in Connecticutare the Housatonic and Connecticut Rivers. It willbe noted that the Connecticut River at the Massa-chusetts State line is now Class D and is to be up-graded to Class C. From Hurd Park to SaybrookPoint, the river is to be upgraded to Class B. TheHousatonic now Class C is to be upgraded to ClassB.

The Water Resources Commission has anothervery important function - that of allocating FederalFunds established specifically for pollution abate-ment. At the present time, no federal or state fundsare available to be granted to industry, but any mu-nicipality may construct and operate a pollutionabatement plant for industrial wastes and be eligiblefor federal funds. The Town of Wallingford has con-structed and operates such an industrial waste treat-ment plant for the use of industries in Wallingford.

It would seem not only feasible but desirable fortowns or municipalities to construct treatment facil-ities in newly established industrial parks, be eligi-ble for Federal Grants and have control of the opera-tion in the hands of the municipality rather than theindustry. While it would be expected that industrywould be taxed and pay for the operation on astrength and volume basis, the capital investmentwould be paid for by the town aided by state andfederal grants.

Another important Connecticut Statute is Sec.12-81, subsection (51) which exempts water pollutioncontrol facilities constructed after July 1, 1965 fromtaxation by the town in which it is located.

FUTURE LEGISLATION

We have reviewed the water legislation as it nowexists, but what of the future? Many committees,industries, commissions and branches of governmentare presently studying and getting together data forthe writing of new legislation. The results of someof these studies are given in reports available tothe public.

A survey of "Water in Industry" by the NationalAssociation of Manufacturers and the United StatesChamber of Commerce4 reviews the availability ofwater for industry, the methods and costs of wastetreatment and the legal regulation of pollution. It isstated that industry in 1959 spent more than $100 Mto operate waste treatment plants and that the re-placement cost of the facilities would be more than$1 billion. They recommend an informed public "thatcan participate constructively in reaching decisionsthat will always have to be made in the fields ofwater resources and pollution."

In a seminar on "Water Pollution Control"5 dur-ing the 30th Chemical Industries Exposition, Barco,et al gave a paper on "The Timetable for FederalControl of Water Pollution." They conclude in part:

"Direct federal concern and control over nationalpollution is no longer a possibility - it is a growingreality with a mandatory timetable for execution.This reality is a consequence of the joint concern ofCongress and the Executive, backed wholeheartedlyby the general public and communications media. Itis a wide-ranging fact of life with which industryand civic communities must learn to live, and alegal responsibility and moral challenge which mustbe effectively met."

Many representatives of industry have appearedbefore committees and subcommittees of the Houseand Senate, and the views expressed will undoubted-ly influence future legislation. F. E. Tucker of theNational Steel Corporation, gave the following inpart to the Senate subcommittee on Water Pollution:"We find it difficult to understand how it can be inthe public interest to supply federal financial sup-port for municipal pollution control, but against thepublic interest to suggest federal tax relief for non-revenue-producing industrial pollution control equip-ment. We are told each phase is of equal importanceto the public good. By the same token, each deservesequal consideration."

A. J. von Frank of the Manufacturing ChemistsAssociation, before the Muskie Subcommittee, in-dicated that a 7% or more tax credit and depreciationof construction costs in one year would be desirable.

Many others have also indicated that industry re-quires assistance by means of direct grants, invest-ment tax credit or fast writeoff to pay for nonrevenue-

20

producing investment in the field of water pollutioncontrol. A number of proposed bills will allow taxwriteoff in from 1-5 years. A one-year writeoff isequivalent to classifying the capital expense as anoperating expense and thus fully tax deductible.

Studies are now being made for legislative billscovering federal grants for joint industrial-municipaltreatment plants and other bills are being written toprovide research and demonstration plants.

Merwin E. Hupfer, Principal Sanitary Engineer,Connecticut Water Resources Commission, in hispaper "Survey of Federal Aids"6 given at the No-vember 1966 meeting of the Institute of Public Serv-ice, The University of Connecticut, reviewed recentfederal legislation. Hupfer stated, in referring to thelegislation passed by Congress just before adjourn-ment, "The bill provides funds (if subsequent Con-gresses appropriate the money) as follows: $450million in Fiscal Year 1968; $700 million in 1969;$1 billion in 1970; and $1.25 billion in 1971- a totalof $3.4 billion for the four years of which Connecti-cut anticipates receiving about $47,000,000. Thebill also allows prefinancing of federal grants bystates or municipalities. With the new provisionsfederal participation will be as follows:

"1. 30% of any construction project, regardlessof cost.

"2. 40% of any construction project to which astate contributes at least 30%.

"3. 50% of any construction project to which astate contributes at least 25% if the state alsoagrees to impose quality standards on navigableintrastate streams.

"4. 10% increase in grant to any project that ispart of a metropolitan area-wide plan.

"If the 1967 General Assembly adopts legisla-tion as proposed by the Clean Water Task Force andthe President signs the new Federal bill, grants of70% and possibly up to 85% will be available. TheWater Resources Commission's intricate priorityrating system and limitation of $250,000 per project,developed to disperse Connecticut's meager grantallocation among our municipalities in the mostequitable manner possible, can be abandoned. Thus,Connecticut's municipalities would have all thefinancial incentive necessary to construct theirneeded sewage treatment works facilities well with-in the time schedule recommended by the CleanWater Task Force."

Other committees in the Federal Government arealso promoting attacks on pollution. The Subcommit-tee on Science, Research, and Development, aidedby Connecticut's Emilio Q. Daddario, has recentlysubmitted a report on "Environmental Pollution"to the Committee on Science and Astronautics of theU. S. House ofRepresentatives.7 Their conclusionsare given in part as follows:

"1. The pollution problem is composed of two re-lated concepts: the kind of natural surroundings wewant and need; and the cost and means of obtainingthese qualities. The hearings testimony demonstrates

that there are inadequacies of knowledge in bothareas that are frustrating the further definition of theproblem and that are barriers to abatement progress.

"2. Considering the powerful forces for ecologi-cal change which are at man's disposal, admittingthe impossibility of complete fore-knowledge of theconsequences of many activities, and granting thata highly technical over-populated world must con-tinue to take risks with natural resources, an 'earlywarning system' for unwanted consequences is ex-tremely important. We do not have such a system atpresent.

"3. Other than in the case of gross and obviouspollution, there is insufficient information to setultimate objectives, criteria and standards. Thedirections of improvement are usually clear enoughso that near term objectives can be set in terms ofpercent reduction. But short of the unrealistic zeropoint, few limiting conditions or ultimately allow-able concentrations can be specified on a scientificbasis. Nothing about the testimony suggested thatpresent legislation had gone beyond the existingtechnological basis. But the urgent and insistentnature of the Clean Air Act and the Water QualityAct is a strong stimulus to R. & D. to provide moreknowledge and better techniques.

"4. Firmly established criteria and standards forenvironmental quality are necessary to give industrya basis for planning and action. Only then will thescience and engineering resources in the privatesector be fully motivated. These skills and facilitiesare needed to solve internal corporate problems, andto meet the market demand for abatement processesand techniques which enforcible standards willgenerate.

"5. Therefore, the immediate research needs arein (a) improved abatement methods for gross andobvious pollution, and (b) ecological and humanhealth data for criteria and standards setting.

"Any large and rapid expansion of research anddevelopment will have to be performed to a greatextent in the private sector (with contracts andgrants if necessary) because Federal laboratoriesand personnel cannot expand fast enough. However,some considerable capabilities, which would be ap-plied to pollution, exist in Federal research centersestablished for other primary missions.

"6. Federal Government scientific activities arenot yet channeled to support announced goals inpollution abatement. There is no organization orcoordinating group capable of systems analysis andbroad management of Federal projects. Insufficientfunding has made support of research spotty anddisproportionate among problem areas. Agency mis-sions may inhibit long term and comprehensive eco-logical studies. 'Pollution' can cover an enormousvariety of Federal agency programs ranging fromwater resources research to agricultural engineering.Limitations of definition will be necessary for ef-fective program coordination.

"7. Technical manpower will be a limiting factor

21

in abatement progress unless additional effort isorganized into retraining, graduate education, andtransfer of skills from other technology programs.

"8. Ecology, as an organized profession, is notin good condition to become the umbrella for in-creased research. As a scientific discipline it isthe logical focal point. As a point of view it is al-ready effective in coordinating other sciences andthis may be the most important function in the longrun.

"9. Complete solution of pollution problems maynot be possible, but two trends are discernible.More recycling of materials is a way of managingand eliminating wastes as well as a sound conserva-tion policy. The impact of recycling on the economycan be lessened by imaginative product and processdesign. The other trend is the controlled transportofunusable wastes to some sort of perpetual safestorage. The use of ocean depths, deep wells, saltdomes, burial, and caves needs careful study to as-sure that there are no undesirable effects on thebiosphere from such disposal.

"10. Large scale demonstration of new and im-proved abatement methods will be necessary toestablish efficiency and costs. Massive city-sizedexperiments, freed from the inhibitions of presentinstitutional practices and investments, are thenature of research in urban ecology. Governmentfunding in an underwriting or risk-sharing role isjustified to move technology from the developmentstage, through demonstration to wide application.

"11. The interactions of Federal science fundingwith industrial research resources is quite differentin pollution from those relationships in the militaryspace programs. The Federal Government is not themajor customer for the products and processes re-sulting from R. & D. in pollution. Industry may bealert to its responsibilities but Federal researchsupport will be needed to stimulate development ofabatement methods to show when standards can bemet and to bring improvements in a timely manner.Beyond these points, abatement technology shouldbe in the control of normal commercial enterprise."

FUTURE STATUTES IN CONNECTICUT

In Connecticut, a Clean Water Task Force wasappointed by the Governor in October 1965 "tostudy the pollution problem in Connecticut andrecommend the best, quickest, most efficient andeconomical way to eliminate it." This Task Forcecompleted its work and provided a report entitled,"Clean Water for Connecticut - An Action Pro-gram."8 The specific recommendations of this reportcover a 7-year plan for pollution abatement of Con-necticut's waters as follows:

"Step 1 A state bond issue, of $150 million, tobe authorized by the 1967 session of TheConnecticut General Assembly, to financea greatly accelerated program of wastetreatment.

"Step 2 A revision of state business taxes which

pertain to the treatment of industrialwastes.

"Step 3 A general review of all state laws andcodes which pertain to the use of water,as well as a study of how these lawsand codes can best be administered byour state government.

"Step 4 A vigorous support of Federal PollutionControl Legislation."

Industry will be most interested in the recom-mendations of Step 2.

"Industrial waste is another major source ofpollution in Connecticut's water. Whenever the treat-ment of industrial waste cannot be included in newor enlarged municipal treatment plants, industrymust be assisted in the construction of their owntreatment plants. To prevent industry from beingtaxed for non-productive investment the State shouldallow a one year write-off for waste treatmentplants.

"Also, the State Sales and Use Tax should berevised to exclude materials bought and used in theconstruction and operation of industrial treatmentplants, this revision to become effective during thecalendar year 1967.

"Also, industries which must relocate within thestate, in order to treat their wastes adequatelyshould have access to redevelopment funds.

"Here again, while the cost of treating industrialwastes is considerable, it is not prohibitive. More-over, like municipal waste, the job can be done.There is no form of industrial waste in Connecticutwhich cannot be treated with methods andtechniquesnow in existence.

"Industry is the backbone of Connecticut's econ-omy. We must be willing to share the cost to indus-try of this seven-year program to clean up the waterthey must have to survive."

They also recommend an upgrading of the statelaws and codes which pertain to the use of water,and their report recommends not only wide changesin existing laws but new legislation to cover bothmunicipal and industrial pollution.

"The present laws under which Connecticut mustoperate in regard to the use of water are clearlyobsolete. Indeed, it is a tribute to the State WaterResources Commission, that, under present law,and with such inadequate financing they have beenable to operate at all.

"The Riparian Code, upon which our laws arebased, was developed during the time of the Romans!It was satisfactory for a sparsely settled frontiersociety but it does not apply today. Connecticutwill have a population of 5,000,000 by the year twothousand. It seems doubtful that any municipality,any industry, or any individual should have the'right' to pollute water. Therefore, our laws and ourcodes which pertain to the use of water must beupdated.

"The State should retain the burden of proof toshow pollution.

22

"The State should not be required to prescribespecific methods of waste treatment.

"The State should have the right to seek redressin court against any polluter who has not compliedwith an order.

"The polluter should have the right of appeal onthe grounds of legality or equity.

"A long range plan must be developed which willset guidelines for improving the quality of water foran ever expanding population. This plan must takeinto consideration the public water supply, water forindustry, agriculture, recreation, and the propagationof fish and wildlife. It must also be coordinatedwith planning activities for all New England.

"Since new requirements will be placed uponthem, the organizational structure of the Water Re-sources Commission and the State Health Depart-ment must be studied, Their staff should be in-creased."

I would recommend that every industrialist studynot only the report of the Clean Water Task Force,but should also study the review of the requirementsproposed by the Task Force by John J. Curry, ChiefEngineer, Water Resources Commission, given as apaper at the November 3rd meeting of the Instituteof Public Service, The University of Connecticut.9The new legislation as stated by Mr. Curry willpresent "requirements that it is apparent must becarried out by the Water Resources Commission be-cause there is no one else who can perform them andthe general recommendations resulting from such anexpenditure of effort by the Task Force cannot justbe left on the table."

As a final comment, I would like to state that asrecent as 5 years ago, I would not have felt any realurgency about our pollution problem, but today I feelwe should go forward as fast as our resources willpermit. By this I mean manpower as well as money.

by

I. Laird Newell, PresidentThe Henry Souther Engineering Co.

Hartford, Conn.

Presented at The University of ConnecticutWater Resources Institute

December 14, 1966

BIBLIOGRAPHY

1. "Water" - Bureau of Mines Preprint from Bulle-tin 630 - 1965 U. S. Department of the Interior.

2. Robert A. Canham - "Status of Federal WaterPollution Control Legislation" - Journal WaterPollution Control Federation - Vol. 38, p. 3(1966)

3. The Public Health Code of the State of Connect-icut July 1964

4. "Water in Industry" - National Association ofManufacturers (1965) - 277 Park Ave., New YorkCity

5. "Water Pollution Control"- Chemical IndustriesExposition Seminar - Published by SouthwesternEngineering Co., 6111 East Bandini Boulevard,Los Angeles, California

6. "Survey of Federal Aids" - Institute of PublicService, The University of Connecticut, Nov.3, 1966, by Merwin E. Hupfer, Water ResourcesCommission

7. "Environmental Pollution" - A Challenge toScience and Technology Report of the Subcom-mittee on Science, Research, and Developmentto the Committee on Science and Astronautics,U. S. House of Representatives published by theU. S. Government Printing Office, Superintendentof Documents.

J 8. "Clean Water for Connecticut - An Action Pro-gram" - Department of Agriculture and NaturalResources, Hartford, Conn., July 1966

9. "Requirements Proposed by the Clean WaterJ Task Force" by John J. Curry, Water Resources

Commission - Institute of Public Service, TheUniversity of Connecticut, Nov. 3, 1966

10. The New England Interstate Water Pollutionj Control Commission - Water Use Classes and

Standards of Quality for Interstate Waters -September 14, 1966. Available from office at 73Tremont St., Boston, Mass.

11. Water Pollution Control - Reorganization PlanNo. 2 of 1966. (Prepared by the President andtransmitted to the Senate and the House ofRepresentatives in Congress assembled, Feb.28, 1966, pursuant to the provisions of the Re-organization Act of 1949, 63 Stat. 203, asamended).

12. Interdepartmental Agreement between Health,Education and Welfare Department and Depart-ment of the Interior in accordance with Reor-ganization Plan No. 2 of 1966

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ALTERING A SYSTEM OF WATER RIGHTS - LOOK BEFORE YOU LEAPpresented January 18, 1967 by Mr. W. M. Champion, Assistant Professor of Law,University of Mississippi, University Park.

ALTERING A SYSTEM OF WATER RIGHTS -LOOK BEFORE YOU LEAP

By William M. Champion*

The topic assigned this writer is that of makingthe transition from one system of water rights toanother. This was done in Mississippi in 1956,when we changed from the riparian doctrine to oneembracing many of the concepts of the Westerndoctrine of prior appropriation. Because only thosewho have studied Connecticut's water problems indetail are qualified to recommend which system ofwater rights should be adopted in this state, I pro-pose to approach the subject as generically as pos-sible. To this end I shall direct my attention tothree areas of consideration - law, policy, and ad-ministration. The title of this paper, Altering a Sys-tem of Water Rights - Look Before you Leap, isperhaps a bit misleading if not explained. It is notthe writer's intention to point out numerous pitfallsthat await anyone making the change, nor to advo-cate a policy of "Go Slow" or of no change at all.Rather, the main purpose is to present certain mat-ters that should be investigated before you settleupon what course shall be followed. This is basedon the experience of the past ten years in Mississip-pi. Some of these things were done, and some werenot done. Therefore, this author has the advantageof hindsight.

BACKGROUND

In 1952-1954 Mississippi suffered from what weconsider severe drouths. Several representatives ofvarious economic interests, led by Delta cottonproducers, began to question our system of waterrights. Crops were dying or stunted, and investmentsin irrigation equipment looked attractive, but only ifa firm system of water rights protected these invest-ments. Manufacturers and other commercial users ofwater began to express concern over the increaseddemands being made on our streams. Accordingly,an inter-agency organization consisting of represent-atives of about a dozen various economic interests,ranging from the Farm Bureau Federation to the

Mississippi Economic Council - the state chamberof commerce - was formed to study water supplyand needs, and to recommend remedial legislation.With assistance from the United States Soil Con-servation Service, in 1956 this organization recom-mended to the legislature a law applicable to sur-face watercourses, which is patterned largely onthe Western system of prior appropriation. Thispassed with little difficulty.

LAW

In an earlier meeting of this seminar FrankTrelease briefly explained the basic systems ofwater law. However, for the benefit of those whomissed that session, and to refresh the memories ofthose who attended, I will briefly state thesedoctrines.

The doctrine of prior appropriation applies to theuse of natural watercourses in eighteen of the nine-teen western states, including that tier of statesfrom Texas to North Dakota, and all west of themexcept humid Hawaii. Riparian rules also apply insome of these states. Riparian rules are extensivelyfollowed in some of the thirty-one eastern states.Humid Mississippi is a notable exception. Connecti-cut is a riparian state, with the doctrine having be-come established during the salad days of waterpower, when hydro-electric plants were unknown,and mill ponds accounted for the bulk of on-streamimpoundments.

The basis of the riparian doctrine is a co-equalsharing of the water in a stream, although domesticuses normally are given a preference. This sharingis not participated in by all who need or can usethe water, but generally is limited to those who ownland contiguous to the watercourse. However, ri-parian rights to use navigable watercourses may besubject to public rights of way for commercial navi-gation. In several states, public rights of use mayinclude pleasure boating, fishing, swimming and thelike.

Finally, one of two rules will determine howmuch water may be diverted by riparian landowners.The first of these is the "natural flow" rule, whichprovides that each riparian is entitled to have the

24

water flow onto his lands undiminished in quantityand quality. This means that a user cannot material-ly alter the natural flow of the stream. The otherrule is the "rule of reasonable use". This meansthat the use to which the water is to be applied mustbe reasonable in the light of all surrounding cir-cumstances, such as method of use, nature of use,quantity desired, quantity available, and other de-mands for the water. In actual practice there may belittle difference in the end result of the applicationof the rules.

Prior appropriation - the code of the west - isquite different. Contiguity to the stream is imma-terial, and the basis of the right is "first come,first served". Water rights are normally expressedin terms of maximum quantities diverted at maximumrates of diversion. Thus, the appropriator senior inpriority - time of initial use - may continue the fullexercise of his right even though there be insuffi-cient water to satisfy all appropriations. In thisevent, the junior appropriators must cease theirdiversions of water. Insofar as total stream depletionis concerned, most jurisdictions afford no protectionto the flow of non-navigable streams, and thosewhich do provide only for a limited continued flow.

The type of use ordinarily is not limited so longas it is regarded as a beneficial and non-wastefuluse. Thus, Mississippi recognizes seven types ofuse ranging from domestic to recreational, and in-cluding the rather indefinite category of "other"uses. Some western states accord a higher preferenceto some uses than to others. In Mississippi onlydomestic users are given such a preference.

This is about as brief a coverage of the twobasic water rights doctrines applicable to surfacewatercourses as is possible, but with the foregoingfeatures in mind let's look at our problem.

A word of caution is due here. The mere estab-lishment of a firm system of water rights is notnecessarily a panacea for water problems. All thelawyers and lawmakers in New England can't effec-tuate a good water program unless they are aware ofwhat they hope to accomplish, understand the prob-lems - physical and political, present and future -with which they are dealing, and obtain laws thatwill insure the reaching of their goals. A bad deci-sion could be worse than no decision at all.

POLICY

What is the fundamental policy behind a systemof water rights? The choices here are several, but aclearly defined selection should be made beforepassing any law regulating water uses.

The basic policy, in turn, is dependent upon theproblem or objective. Here in Connecticut, and othernortheastern states, the problem has had at leastfour aspects. There are periodic shortages of water.Admittedly your rainfall greatly exceeds that ofmost western states, but eastern water utilizationeconomics have previously dictated different uses

and methods of use, as well as different reservoirsystems, than those employed in the west. There-fore, an extended drouth as we easterners know it,puts water reserves in danger.

Second, most eastern states have problems ofdistribution. While we have high average annualrainfall, it does not always fall when we need it,and entirely too often it rains when we would rathernot have it. Furthermore, the water won't cooperateby sitting around in a convenient place until needed.Instead, it runs off into small streams, then largerand larger ones, until it is far from where it fell,and from where it is needed. Thus, although wehave lots of water, we don't necessarily have itwhere or when we need it.

Everywhere in the humid east one encounterswasteful uses or methods of use of water. Tradi-tionally, riparians have been reluctant to policetheir stated prohibitions against waste, and certain-ly no one would consider violations of them evenas misdemeanors. Yet, untold billions of gallons ofwater are wasted annually through the employmentof outdated industrial equipment and processes,overuse of water, inefficient municipal water andsewage systems, and simply giving water away.

Finally, the entire nation is faced with pollution.Streams in every section of America are polluted,but because New England is so heavily industrializ-ed, pollution problems here seem to be more acutethan is true elsewhere.

These are a few of the particulars of your waterproblem. They have in common two features. First,they are not uniquely Connecticut or northeasternproblems. Therefore, the rest of us will benefit fromthe experience of whatever decision you ultimatelymake.

The second feature is that each of these prob-lems is characterized by some aspect of limitedavailability of usable water. It might be said thatthis water shortage problem is, in some aspects, aneasy problem. It is easy because it is readily iden-tified. The solution may be difficult, but at leastyou know what you're working with. In the east,however, this is not the entire problem. Here thereis more ground water, more lakes and ponds, morewatercourses, and more rains than is true in thewest. As continued misuse of water forces easternersto give it a higher economic value, they will cleanup the streams, build the necessary reservoirs andtransportation systems, and prohibit waste to theend that the shortage will be at least temporarilyalleviated.

So the eastern problem is more nebulous. It in-volves an ascertainment of the value of water at atime when we still tend to treat it as a free good.Second, there must be found a way to realize the fullvalue of a resource so precious that men have de-fended their rights to it with firearms. This is diffi-cult in an area that historically has consideredflood control and drainage as its greatest waterproblems. This writer doesn't have the answer tothis problem, but it is submitted that it must be con-

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sidered when forming a basic policy. Thus, Con-necticut's policy should grow out of the solutions.to at least two problems - periodic water shortage,and failure to significantly capitalize upon one ofthe natural advantages held over other sections ofthis country, and, indeed, many parts of the world.

What will be the ultimate objectives of thispolicy? Many alternatives are available. It can bea stop-gap policy designed merely to provide someinsurance to some users in times of shortage. Manysupport this type of measure and characterize it asa "firm system of water rights". This is the systemlargely employed in the west where, due to theirarid climate, it is more than merely a stop-gappolicy, but apparently is the best yet devised. Inhumid Mississippi, however, it would appear that itis nothing more than a predetermination of relativerights to be employed in the rare instance of watershortage. While this is good in that it minimizes thenecessity of periodic litigation, it does little toprevent water shortages, or to stimulate greaterutilization of a normally abundant water supply.

A policy designed to merely restrict inefficientuses of water, or to guarantee certain preferredusers their supply could be adopted. In that case,you might inaugurate a limited permit system, underwhich users for designated purposes must obtain apermit. Then, when water is in short supply, thesepermittees may be outside the riparian doctrine, andwill be either allowed to continue their full use orrequired to cut back or terminate their diversions,depending upon whether the system is designed toprotect or restrict them. Clearly such a system canpromise only limited achievements, because thepolicy has limited objectives.

There are other short-range policies that may beconsidered. These would include guarantees ofmunicipal supplies, water for industry, and recrea-tional attractions. However, with approximately 30inches of rainfall in 1965, 34 in 1964, and 37 in1963, plus a twenty-year average in excess of 40inches, Connecticut is in a position to develop acomprehensive and fully integrated water regulatorysystem containing many of the features previouslymentioned.

A comprehensive and fully integrated system isfirst one that provides security in their rights forthose that the state has decided should be protected.These might include domestic users, municipalities,irrigators, industrial users, recreational interests, orany other categories that mind might conceive. Thesystem should not only secure their rights, butshould define their standing in regard to each otheras competition for water increases. In the event thesystem does not equally secure the rights of allcategories of users, then it should provide a clearmethod of resolving conflicts among the lesser pro-tected users.

Second, the system provides sufficient flexibilityfor the convenient evolution of water use patterns.Thus, it should remove the limitations of the con-cept of riparian lands, so that water might be trans-

ported beyond the site of diversion or withdrawal tothe place of ultimate use. Then, it should makewater rights freely alienable with no loss of priority- or dignity of right - occasioned because of achange in the ownership of the right or the place ofits exercise. Finally, on the point of flexibility, thesystem can aid in reaching the goal of maximumbenefits to the community by basing the comparativedignity or strength of competing rights on method andtype of use, rather than one who used it first. Whilethe relationships of small children may be satis-factorily governed by the cry of "me first", this isnot a particularly sophisticated way in which toallocate such an important natural resource aswater.

Third, the system includes all uses of water -diversionary and nondiversionary, consumptive andnonconsumptive, and may well include pollutioncontrol. This means "control" and not "abatement".It would seem that in the proper situation, controlledpollution can be equally as legitimate a use ofwater as is irrigation or the creation of hydro-elec-tric power. An industry employing hundreds of per-sons with an annual payroll in the millions may re-turn a greater benefit to the community than wouldnumerous farms. Now, if there is insufficient waterfor both the absorption of effluent and diversion forirrigation, which should be allowed? In the propercircumstances, pollution within approved State andFederal standards may be allowed on the samebasis as are diversions.

Fourth, the system includes all water activitiesof the State. Therefore, the State should look intothe inclusion of drainage, flood control, reservoirsystems and improvements to navigation as part ofits overall system. This is the master water plan ashas been developed so fully in California. Connecti-cut's development would not follow theirs, nor benearly so expensive, because your problems arequite different. Nevertheless, with a policy sobroad, you can insure a reasonably adequate supplyand manage this resource so as to minimize lossesof unused water to the hydrologic cycle.

Finally, the system includes both surface andground water. Furthermore, it recognizes the actualdistinctions and inter-relationships between them.Where ground water is in reality a part of the flow ofthe stream, it should be treated accordingly. Whereit has no relationship to surface water, perhaps adifferent allocative system is in order.

This is an outline of what the author considers tobe five essentials of a comprehensive fully integrat-ed water rights system or policy. As one can readilysee, much of it deals with features other than in-dividual rights. This is necessarily so becausewater use and water supply management are in-separable, as are water law and economics, andwater economics and social policy. None of thesedisciplines can function in the abstract, but all mustrelate to eachthr n thher and to the many other disciplinesthat may come into play.

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ADMINISTRATION

Let's now direct our attention to the administra-tion of a new system of water rights.

At the outset it should be stated that the systemis no stronger then the state's willingness to policeit. This means money. The law in Mississippi maybe fundamentally sound, but because our administra-tive agency is too short-handed to police it, thereare untold violations of the law each year. Now ifthis is of no consequence, it would be safe to as-sume that the law is either unnecessary or in thewrong form. Thus, if the state isn't willing to policethe law, then possibly it would be best to make nochange.

Regardless of its form, the administrative agencyshould be given at least quasi-judicial powers.Colorado employs the system whereby each waterright is adjudicated by a court. They like this. How-ever, a more streamlined and efficient method is tohave the agency adjudicate the rights, with its deci-sions subject to appeal within a prescribed period oftime.

This introduces the first big problem of adminis-tration. Qualified personnel are hard to find. Theagency should have someone experienced in waterproblems who can combine a working knowledge ofengineering, law, and economics with administrativeability and judicial temperament. Mississippi hasbeen extremely fortunate to have the services ofsuch a man. However, many who appear qualifiedprobably could not handle his job.

The form of the agency was mentioned earlier.Mississippi has found a policy-making commissionheaded by a chairman that oversees the work of aprofessional staff headed by an executive officer tobe most satisfactory. This allows for the day-to-dayfunctioning of the agency under the direction of itsleader, but subject to the policies and regulations ofa body primarily devoted to that aspect of the totaloperation.

Once personnel have been selected, the next bigproblem will be the sudden influx of work. TheMississippi Board of Water Commissioners has actedon approximately 1,250 requests for water rights inthe past ten and one-half years. Over 1,000 of thesewere acted on in the first two and one-half yearsfollowing the passage of our law. The reason is thatmost of these water users were already engaged inusing water. They filed almost immediately, andthereafter new users appeared rather slowly.

This problem is particularly acute when the re-sponsible State agency is just getting organized,because many of the personnel are new, many policydecisions have not been made or even considered,and everyone may have his own interpretation of thelaw. In this regard, it would be most advisable forthe Attorney General to assign someone from hisstaff to become proficient in water law and to workwith and advise the responsible agency.

The final big problem of administration that hasbeen encountered in Mississippi is money. Our pro-

gram falls far short of the fully integrated systempreviously described, yet each biennium the Boardof Water Commissioners must accept an appropria-tion too small to allow them to do their job as theyshould. The more sophisticated the operation, themore expensive it will be. However, because overthe past five years Connecticut's annual rainfall hasdecreased a total of about 12 inches, and becausethe national spotlight has been focused on yourwater problem, you might fare better in this regardthan we have.

CONCLUSION

This paper has rather vaguely covered a numberof considerations and possibilities for Connecticut'sfuture water program. Hopefully, some of it may beof value. If there is one idea that you should retain,it is that an inadequate plan is easy to make, butdifficult to change. One can't urge strongly enoughthat you spend much time in research and investiga-tions; that you formulate an overall policy; and thatyou then obtain laws which will realistically effec-tuate this policy.

*B.S., LL.B., LL.M., Attorney, Natural ResourceEconomics Division, Economic Research Service,United States Department of Agriculture; AssistantDirector of Research, Legal Institute of Agriculturaland Resource Development; and Assistant Professorof Law, University of Mississippi. The opinionsexpressed in this paper are those of the author, anddo not necessarily reflect the opinions of the UnitedStates Department of Agriculture.

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