OOOD79100
WATER QUALITY/WATER ALLOCATION COORDINATION STUDY
DRAFT
A REPORT TO CONGRESS IN RESPONSE TO
SECTION 102(D) OF THE CLEAN WATER ACT
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WATER PLANNING DIVISION
WASHINGTON, D,C, 20460
AUGUST, 1979
U.S. Environmental Protection
Region 3, Library (PL-12J)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C 20460
Office of Water
and Waste Management
TO: Recipients of the Water Quality/Water Allocation Draft Report
Attached for your review and comment is a copy of the second draft of
the Water Quality/Water Allocation Study, prepared in response to Sec-
tion 102(d) of the Clean Water Act.
This draft incorporates, to the extent practicable, the numerous com-
ments received from within EPA as well as from States, River Basin
Commissions and others. I believe this revised draft is much improved
as a result of these comments. The report now focuses more clearly on
the identified existing and potential quality/quantity conflicts.
The report includes a discussion of the legislative background, a
summary of the Clean Water Act, and a summary of the State and Federal
water allocation programs. The analysis of quality/quantity relation-
ships and conflicts focuses on four major areas: (1) instream flow; (2)
irrigated agriculture; (3) consumptive waste treatment technologies; and
(4) ground water and surface water relationships. Draft alternatives
and recommendations to Congress are also presented which address prob-
lems and conflicts related to these issues.
Comments must be received no later than close of business November 1,
1979, to be incorporated into the final report. To facilitate comple-
tion of the final report, please forward your comments directly to the
Project Officer, Jerry Kotas, Water Planning Division (WH-554), U.S.
Environmental Protection Agency, 401 M Street, S.W., Washington, D.C.
20460, (202)426-2474.
I appreciate your assistance in helping to improve this report and I
look forward to receiving your comments.
jrely yours,
Assistant Admin
Water and Waste
Attachment
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TABLE OF CONTENTS
Chapter I
Chapter II
Chapter III
Chapter IV
Chapter V
Chapter VI
Chapter VII
Chapter VIII
Chapter IX
Appendix A
Appendix B
Appendix C
Appendix D
Executive Summary
Legislative Background
Clean Water Act Programs
State and Federal Surface Water Allocation Systems
Instream Flows
Irrigated Agriculture
Consumptive Waste Treatment Technologies
Ground Water and Related Surface Flow Problems
Alternatives and Recommendations
State Water Law Summaries
Riparian State Water Permit Systems
Riparian Permit States - Instream Flows
Increased Efficiency Irrigation BMP's
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CHAPTER I
EXECUTIVE SUMMARY
[reserved]
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CHAPTER II
LEGISLATIVE BACKGROUND
This report is intended to meet the requirements of section 102(d)
of the Clean Water Act. That section requires that the Administrator of
the Environmental Protection Agency submit a report to the Congress which
analyzes the relationship between the Act's water pollution control pro-
grams and programs by which State and Federal agencies allocate quantities
of water. The section also requires EPA to consult with the States and
River Basin Commissions. The report must also include recommendations
concerning the policy in section 101(g) of the Act to improve coordination
of efforts to reduce and eliminate pollution in concert with programs for
managing water resources.
Section 101(g)
Section 101(g) was added to the Clean Water Act by section 5(a) of
the 1977 Amendments (P.L. 95-217). It provides as follows:
It is the policy of Congress that the authority
of each State to allocate quantities of water within
its jurisdiction shall not be superseded, abrogated
or otherwise impaired by this Act. It is the further
policy of Congress that nothing in this Act shall be
construed to supersede or abrogate rights to quantities
of water which have been established by any State.
Federal agencies shall co-operate with State and local
agencies to develop comprehensive solutions to prevent,
reduce and eliminate pollution in concert with programs
for managing water resources.
Section 101(g) was originally offered on the Senate floor as an
amendment to section 510 of the Federal Water Pollution Control Act Amend-
ments of 1972. It was co-sponsored by Senators Wallop and Hart and is re-
ferred to as the "Wallop Amendment." Section 510 states:
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Except as expressly provided in this Act, nothing
in this Act shall . . . 2) be construed as impairing or
in any manner affecting any right or jurisdiction of
the States with respect to the water (including boundary
waters) of such States.
As it was finally enacted, the Wallop Amendment was placed in
section 101, the policy section of the Act, rather than in section 510.
As explained in the Conference Report to the 1977 Amendments, section 101(g)
is intended to "clarify existing law to assure its effective implementation.
It is not intended to change existing law" (H. Kept. 95-830, December 6, 1977,
p. 52). The existing law on this point is section 510(2), which was enacted
in 1972 and was unchanged in the 1977 Amendments.
The only discussion of section 101(g) in the legislative history, other
than the Conference Report cited above, is by Senator Wallop. It is useful
to examine several portions of his floor statement:
This amendment came immediately after the release
of the Issue and Option Papers for the Water Resource
Policy Study now being conducted by the Water Resources
Council. Several of the options contained in that paper
called for the use of Federal water quality legislation
to effect Federal purposes that were not strictly related
to water quality. Those other purposes might include, but
were not limited to Federal land use planning, plant siting
and production planning purposes. This "State's jurisdiction"
amendment reaffirms that it is the policy of Congress that this
Act is to be used for water quality purposes only.
It is not intended to change present law, for a similar
prohibition is contained in section 510 of the Act. . . .
Legitimate water quality measures authorized by this act may
at times have some effect on the method of water usage. Water
quality standards and their upgrading are legitimate and neces-
sary under this Act. The requirements of section 402 and 404
permits may incidentally affect individual water rights. Manage-
ment practices developed through State or local section 208 plan-
ning units may also incidentally effect [sic] the use of water
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under an individual water right. It is not the purpose
of this amendment to prohibit those incidental effects.
It is the purpose of this amendment to insure that State
allocation systems are not subverted, and that effects
on individual rights, if any, are prompted by legitimate
and necessary water quality considerations.
123 Cong. Rec. S19677-78, (daily ed., Dec. 15, 1977).
EPA Understanding of Section 101(g)
Congress did not intend through Section 101(g) to prohibit EPA from
taking such measures as may be legitimate and necessary to protect water
quality. However, Congress did strongly assert that water allocation
systems and water rights are not to be taken lightly. The 1977 Amendments
left untouched both section 301(b)(l)(C), which requires without exception
that point source discharges be controlled to meet water quality standards,
and section 101(a)(2), which declares the national "fishable, swimmable"
water quality goal.
Section 510(2), which Congress expressly declined to change, provides
that States' water rights are not to be impaired "except as expressly pro-
vided in this Act." Thus, as Senator Wallop noted, the requirements of
water quality standards, section 402 and section 404 permits, and section
208 plans may incidentally affect water rights and usages without running
afoul of sections 101(g) and 510(2).
Purpose
The purpose of this report is to analyze the relationship between
Clean Water Act programs and State and Federal water allocation programs.
Its further purpose is to make recommendations, based on this analysis,
for improving coordination of the management of water quantity and quality.
Section 102(d) of the Clean Water Act states:
The Administrator, after consultation with the States,
and River Basin Commissions established under the Water
Resources Planning Act, shall submit a report to Congress
on or before July 1, 1978, which analyzes the relationship
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between programs under this Act, and the programs by which
State and Federal agencies allocate quantities of'water.
Such report shall include recommendations concerning the
policy in section 101(g) of the Act to improve coordination
of efforts to reduce and eliminate pollution in concert with
programs for managing water resources.
This report is in response to section 102(d). It will focus on the
relationship between water resource and water quality programs, and will
develop alternatives for coordination to help minimize conflicts between
water resources and water quality programs.
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Chapter III
CLEAN WATER ACT PROGRAMS
The objective of the Clean Water Act (hereafter, "the Act") is
to "restore and maintain the chemical, physical, and biological integrity
of the Nation's waters" (section 101(a)). To accomplish this, the Act
establishes two goals: the achievement, wherever attainable, of water
quality which provides for the protection and propagation of fish, shell-
fish, and wildlife and provides for recreation in and on the water by
July 1, 1983 (section 101(a)(2)), and the elimination of the discharge of
pollutants by 1985 (section 101(a)(l)). The Act establishes a comprehensive
set of programs for research, planning, financial aid, regulation, and
implementation to prevent and abate water pollution.
This chapter is a brief overview of the Act, focusing primarily on
provisions that may affect State and Federal water allocations programs.
It provides only the highlights of the programs, rather than a detailed
analysis. No attempt is made to predict how courts might interpret
section 101(g) in resolving any conflicts between water quality and
water allocation programs.
Scope of Federal Regulatory Authority
The Clean Water Act generally prohibits the discharge of pollutants
into navigable waters, except where the discharger has obtained a permit.
A discharge is the addition of any pollutant to navigable waters from any
point source. Point sources generally include pipes, conduits, and other
discrete conveyances. The main categories of dischargers are industrial
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and municipal sewage treatment plants, although some agricultural
and mining activities are also included. Nonpoint sources of pollution,
which include runoff from rainfall or irrigation, salt water intrusion,
and groundwater pollution are not subject to the permit requirement.
The permit requirement applies to discharges into "navigable waters,"
which are defined in the Act as waters of the United States. The legisla-
tive history indicates that the term "navigable waters" should be given
the broadest possible interpretation, "unencumbered by determinations
which have been made or may have been made for administrative purposes."
(Conf. Rep. No. 1236, 92d Congress, 2nd Session 144 (1972)). The
definition therefore does not reflect traditional navigation concerns. It
does, however, normally limit the permit requirement to dischargers into surface
waters.
National Pollution Discharge Elimination System (NPDES)
Limitations on point sources are imposed primarily through the NPDES
permit program (section 402). Permits generally consist of limitations on
volumes, mass and/or concentrations of pollutants, and schedules of facility
installation to assure compliance, although they may also include operating
procedures. Permits may be issued for up to five years. Authority for
administering the permit program can be transferred from EPA to the States.
Thirty-two States now administer the program. EPA retains the authority
to review individual permits issued by States for consistency with the Act.
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Approaches for Determining Permit Conditions
The Act establishes three basic approaches for determining the level
of point source pollution reduction required of dischargers, other than
publicly-owned treatment works. First, all dischargers must, at a minimum,
comply with technology-based effluent limitations. These are based on
the degree of reduction of a pollutant that is attainable through the
application of various levels of technology.
Second, when these limitations are not stringent enough to assure
the desired quality of a body of water, then more stringent effluent limitations
based on water quality standards are imposed.
Third, States are authorized to impose any more stringent limitations
established pursuant to any State law or regulation.
Technology-based limitations: These limitations are generally based on
guidelines developed by EPA for specific categories of industries. The
Act sets forth a complex arrangement of requirements and deadlines for
achieving effluent limitations based on these guidelines, and provides
for variances in some circumstances. It defines the following levels of
control technology:
- "Best practicable control technology current achievable" (BPT).
This level of treatment represents the average of the best existing
waste treatment performance. For the most part, it must be
achieved by July 1, 1977.
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- "Best available technology economically achievable (BAT)." This
level of treatment will be based on the best control and treatment
measures that have been developed or are capable of being developed.
- "Best available demonstrated control technology." This level of
treatment is required by new source standards of performance,
which apply to sources built after these standards are promulgated.
These may require no discharge.
- "Best conventional treatment." For conventional pollutants, BAT
has been modified to reflect, among other factors, a reasonable
relationship between the costs of attaining a reduction in effluent
and the benefits derived from reducing effluent, among other factors.
Dischargers are required to treat water to the extent achievable by
these technologies, but are not required to use any specific technology.
Water Quality Standards: When technology-based effluent limitations are
not stringent enough to protect water quality standards, more stringent effluent
limitations based on these standards are imposed.
Water quality standards prescribe instream water quality. They
generally consist of three elements: first, a designated use for a specific
body of water, such as public water supply, recreation, or agriculture;
second, criteria, which generally are instream numerical concentrations of
the pollutants; and third, an antidegradation statement. The criteria must
be sufficient to support the designated use. When technology-based
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effluent limitations are not stringent enough to assure compliance with
these water quality standards, section 301(b)(l)(C) of the Act requires
the development of more stringent limitations to achieve them. EPA's
present policy concerning use designation is based on section 101(a)(2) of
the Clean Water Act, which provides that "wherever attainable, a goal of
water quality which provides for the protection and propagation of fish,
shellfish and wildlife and provides for recreation in and on the water
be achieved by July 1, 1983." Fishable, swimmable use designations are
therefore the norm, and less stringent designations are allowed only in
limited circumstances.
Publicly-owned treatment works are subject to similar requirements.
These are discussed in more detail in the section on construction grants.
State-Federal Relationships
Section 301(b)(l)(C) of the Act authorizes the imposition in permits
of "any more stringent limitation, including those necessary to meet water
quality standards, treatment requirements, or schedules of compliance,
established pursuant to any State law or regulation, (under authority
preserved by section 510) ...". Section 510 provides more generally that
States are not preempted from imposing more stringent pollution control
requirements.
Under section 401 of the Act, applicants for Federal licenses or
permits to conduct any activity that may result in a discharge (including
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but not limited to NPDES permits) must obtain a certification from the
State that the discharge will comply with the applicable provisions of
sections 301, 302, 303, 306, and 307 of the Act. These include technology-
based limitations, water quality standards, and other limitations
established under State authority preserved by the Act.
Federal agencies, facilities, and instrumentalities having jurisdiction
over any property or facility, or engaged in activities that may result in
discharge or runoff of pollutants are subject to Federal, State, local and
interstate pollution control requirements to the same extent as non-govern-
mental entities (section 313).
404 Permit Program
The Clean Water Act includes several other permit programs besides
NPDES. The most important of these is the section 404 permit program for
discharges of dredged or fill material. Activities regulated by this
program include the construction of dams, diversions, and impoundments,
the filling of wetlands, and the disposal of dredged spoil.
The section 404 permit program is presently administered by the Corps
of Engineers, although the 1977 amendments to the Act authorize transfer
of permitting responsibility to the States. Processing of many 404 permits
is coordinated with processing of permits under the Rivers and Harbors Act
of 1899. Section 404 permit applications are evaluated on the basis of
compliance with environmental evaluation gudelines developed by EPA, in
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conjunction with the Corps, under section 404(b)(l) of the Act. Permits
issued by the Corps are also subject to the public interest review, based
on the National Environmental Policy Act (NEPA), the Fish and Wildlife
Coordination Act, and several other Federal statutes. The Corps determines
whether permit issuance would be in the public interest, taking into account
all factors relevant to the proposal. Factors specified in Corps regulations
include conservation, economics, aesthetics, and energy needs. EPA can
veto the issuance of Corps permits on the basis of unacceptable adverse
effects on municipal water supplies, shellfish beds, and fishery areas.
Flow Augmentation
The term "flow augmentation" as used here refers to several pollution
control techniques, including increasing stream flow from impoundments and
dilution of wastes from point sources. Section 102(b) of the Clean Water
Act governs flow augmentation by Federal projects for water quality purposes.
This generally involves the release of water from reservoirs to maintain
the assimilative capacity of a downstream body of water. Section 102(b)
requires Federal agencies that are planning reservoirs to consider storage
for control of stream flow for water quality purposes. The Administrator
of EPA is authorized to determine the need for, and value of, storage for
water quality purposes. The legislative history specifically bans pollution
dilution as a substitute for waste treatment. Flow augmentation can be
considered only as a supplement to adequate waste treatment.
This policy also governs flow augmentation by dischargers of pollutants
who impound water for subsequent release during low flow periods, or who
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transfer water from one body to another to increase stream flow. Flow
augmentation is acceptable only where adequate treatment is insufficient
to achieve water quality standards, and where a discharger can demonstrate
from both environmental and economic standpoints that flow augmentation is
the preferred method to achieve water quality standards.
Construction Grants
Section 201 of the Clean Water Act authorizes Federal grants for
planning, building and improving sewage treatment works and sewers. The
program is for the most part jointly administered by EPA and the States;
EPA is authorized to delegate many of its responsibilities for administration
of the program to the States. Federal financial assistance is available for
three steps: 1) facilities planning, 2) design specifications, and
3) actual construction.
The levels of pollutant reduction required of municipalities are
analogous to those for industries. By July 1, 1977, publicly-owned treat-
ment works must achieve effluent limitations based on secondary treatment.
By July 1, 1983, they must achieve effluent limitations based on the "best
practicable waste treatment technology over the life of the work" (BPWTT).
More stringent requirements based on water quality standards or State
authority may also be imposed
EPA defines secondary treatment as numerical values for BOD, suspended
solids, fecal coliform and acidity. BPWTT involves an analysis of
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alternatives, including land disposal and water reuse, as well as a require-
ment for secondary treatment. The evaluation of alternatives takes place
in the course of facilities planning. EPA's actions in funding construction
based on these plans are subject to the environmental impact analysis
requirements of NEPA.
Water Quality Management Planning
The Clean Water Act established a number of planning programs. Section
303(e) requires each State to develop a Continuing Planning Process, which
provides for implementation of water quality standards. Section 208 estab-
lishes areawide waste treatment management planning, which provides for control
of all sources of pollution, point and nonpoint, to the extent practicable.
208 plans are developed either by areawide agencies designated by the State,
or by the State itself in areas which have not been designated. Section 106
provides for grants to the States for carrying out programs under the Act.
EPA has recently issued regulations integrating these planning programs. Plan-
ning is also required for construction of municipal waste treatment facilities,
as discussed in the section on construction grants.
Section 209 provides for the development of Level B studies for all
basins in the United States under the Water Resources Planning Act. Level
B plans are evaluations of resources in a selected area. They are designed
to resolve complex long range problems by identifying and recommending
actions to be taken by individual areas of government.
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Nonpoint Sources
Section 208 provides for States and local governments to establish pro-
grams to control nonpoint as well as point sources of pollution. Nonpoint
sources include runoff from activities such as agriculture, forestry, mining,
construction, saltwater intrusion, urban stormwater, and residual wastes.
These programs must be regulatory, unless nonregulatory programs will be
adequate to attain the goals of the Act. The federal government has no
direct enforcement authority over nonpoint sources under the Clean Water
Act.
Ground Water
EPA has three programs affecting ground water under the Clean Water Act.
First, under section 208, States and areawide agencies are to develop and
implement management programs for ground water protection. Specifically,
section 208(b)(2)(K) provides for 208 planning agencies to develop a "process
to control the disposal of pollutants on land or in subsurface excavations
to protect ground and surface water quality." Second, under section 402(b),
States must have authority to control the disposal of pollutants into wells
in order to have an approved NPDES permit program. Third, alternative
waste management techniques must be considered before grants for construction
of publicly-owned treatment works can be made. On site and land disposal,
which may affect ground water quality, are major alternatives.
TU-io
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CHAPTER IV
STATE AND FEDERAL SURFACE WATER ALLOCATION SYSTEMS
Traditionally, water quantity allocation has been primarily the respon-
sibility of the States. Congress reaffirmed this State role in section 101(g)
of the Clean Water Act as did President Carter in his national water policy.
In order to understand the nature of the States' responsibility in water
quantity allocation, it is necessary to understand the legal systems pursuant
to which water is allocated by the States, including the reasons for their
evolution and their basic tenets. Two basic systems of law, the riparian
doctrine and the prior appropriation doctrine, govern allocation of surface
water by the States. The following is a discussion of these two systems. A
brief review of water allocation law as it applies in each State can be found in
Appendix /\ of this report.
Riparian System
The riparian system is applied in all States east of the 100th meridian except
Mississippi, and in combination with the prior appropriation system in several of
the western States. Historically, the concept of riparian rights is derived from
English common law. In England the Crown owned the navigable (public) waters
and their banks and beds, holding them in trust for public use. Private waters
were owned and controlled by those who owned riparian land, defined as land
adjacent to the stream or upon which the stream flowed. The bed of the stream
was owned by the riparian landowner. Riparian rights also attached to public
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waters, but they were more restricted than in private waters, because they were
subordinate to the public's right of navigation and fishing, and because the Crown
owned the beds and tidelands.
When the colonists arrived in America they brought the English common law
riparian system with them. It was well suited to the humid climate in the eastern
States which was similar to the English climate. Water supply was abundant. The
basic concept of the English riparian system is that riparian landowners are entitled
to use the water as long as their use does not substantially reduce the quantity or
quality of the water available to other riparians. The two basic principles of
the doctrine are: (1) that ownership of land along a stream is essential to the
existence of a water right, and (2) each riparian owner has an equal right to make
use of the stream, even if that right remains unexercised. These rights cannot be
lost through non-use. Further, it is a correlative right, and each landowner must
consider the rights of other riparians. In times of shortage, theoretically, under
a pure riparian system each riparian would be required to cut back water use to the
same degree, although in practice this may not be the case.
Some changes were made to the English riparian system as it was applied to
the eastern United States. The definition of navigability was expanded to include
all navigable inland waters. Another change made in several of the riparian States
regarded consumptive rights to water. Under the English rule, known as the natural
flow doctrine, each riparian proprietor on a watercourse is entitled to have the
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stream flow through his land in its natural condition, not perceptibly retarded,
diminished, or polluted by others. Several eastern States still follow this doctrine.
Most, however, either have abandoned it for the reasonable use doctrine or use a
combination of the two doctrines. The natural flow doctrine allows diversions for
consumptive uses which are considered to be natural uses such as drinking, bathing,
household purposes, and watering household and farm animals. A riparian owner,
under the natural flow doctrine, may withdraw as much water as he needs for such
natural uses, even if this drains the entire stream. Artificial uses include
irrigation, manufacturing, power generation, mining operations, and large-scale
stock watering. Water may be diverted by riparians for these artificial uses as
long as there is no material interference with the natural flow of the watercouse.
Such a use is actionable by a downstream owner even though he is not using the stream
and suffers no actual damages. The natural flow doctrine was effective in the
early days of the industrial revolution because it ensured that mills and factories
powered by water would have sufficient flow to operate. Since water flow is no longer
used as the primary source of energy, the natural flow doctrine has been rejected in
all but a few States because it prohibits many beneficial consumptive uses.
The reasonable use doctrine gives each riparian proprietor a right to use
the water for any beneficial purpose provided that the intended use does not
unreasonably interfere with legitimate water uses by other proprietors on the
stream. The determination of reasonableness is made on a case-by-case basis.
Priority of use or extent of riparian frontage are not necessarily determinative
in considering what is a reasonable use. In spite of the correlative nature of
their rights, each riparian is not necessarily entitled to a proportionate share
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of the available water. Where water supply is insufficient to satisfy all users,
an otherwise reasonable use may be determined to be unreasonable under the cir-
cumstances and be prohibited.
The reasonableness of a use will be determined according to factors such as
rainfall; climate; season of the year; customs and usages; size, velocity, and
capacity of the watercouse; nature and extent of improvements on the watercourse;
amount of water taken; place and method of diversion; place of use; previous uses;
the object, extent and type of use; its necessity and importance to society; the
uses, rights, and reasonable needs of other riparians; and the use's location on
a stream. The reasonable use doctrine gives preference to natural uses over
artificial uses. A determination of reasonableness is based on present conditions
rather than future circumstances. Both the natural flow and reasonable use rules
govern water quality. The riparian system generally does not allow for use of the
water on nonriparian land, including both diversions by riparian owners to non-
riparian land and diversions by nonriparian owners. However, in jurisdictions
which follow the reasonable use rule, a plaintiff will usually have to show
actual damage before he can enjoin a nonriparian use. In a few States nonriparian
uses which harm downstream riparians may be allowed if they meet the test of
reasonableness. In most riparian States riparian rights are not transferable apart
from the riparian land from which they stem. In the few cases where they are
severable, the right of the nonriparian grantee is effective against the riparian
grantor but is usually inferior to the rights of other riparians.
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Under a strict interpretation of the riparian theory, a municipality, even
where it is a riparian owner, cannot divert water for purposes of public water
supply. In practice, however, courts allow the municipalities to make such
diversions. Some States have expressly recognized riparian rights for munici-
palities. Of course, municipalities have the power to acquire water rights by
eminent domain. Once such rights are so acquired, the municipality is not bound
by the riparian doctrine and may sell water to nonriparians.
Many water uses in the eastern States are not based on riparian rights
but are permit rights administered by a State agency. In some respects these
permit systems are similar to prior appropriation systems, but there are also
major differences. One difference is that eastern permits are often for fixed
terms subject to imposition of conditions and limitations and are frequently
revocable. Also, the date a permit was acquired usually does not affect the
adjudication of conflicts between water users, which are generally resolved
through private litigation following the rule of reasonable use. The permits
generally function as a record-keeping device allowing the State to determine
how much water is being used. In some States the permit requirement only extends
to large water users or to certain geographic areas. In some States certain uses,
such as agriculture, are exempt from the permits. As a general rule these permit
systems do not address all of the shortcomings of the riparian system, particularly
in the resolution of conflicts. See Appendix B for a review by State of these
permit systems.
Prior Appropriation System
In the American West conditions at the time of settlement were quite different
than in the East. Water was initially used for mining and later for irrigation.
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Both of these uses required conveyance of water substantial distances from the
stream and both consumed large quantities of scarce water. In a setting where
there was often not enough water to go around, the riparian system would not work.
To encourage development, the West needed a system which imparted certainty
as to the amount of water available. The concept of prior appropriation developed
from the miner's rule of "First in time, first in right." As early as 1855 this
rule was recognized in California. It was developed into a full-fledged legal
doctrine in the case of Coffin v. Left Hand Ditch, decided by the Colorado Supreme
Court in 1882. Consequently, the prior appropriation doctrine is sometimes called
the Colorado Doctrine.
California was an early leader in recognizing the prior appropriation doctrine,
but later it also recognized riparian rights. This California Doctrine, recognizing
both prior appropriation and riparian rights, was later adopted by Nebraska,
Kansas, Mississippi, North Dakota, South Dakota, Oklahoma, Oregon, Texas, and Wash-
ington. The combination of the two doctrines did not work well, and most of the
States, except California, have since abandoned the riparian doctrine for the
prior appropriation doctrine.
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The fundamental principles of the prior appropriation doctrine are (1) bene-
ficial use of water is the basis, measure and limit of the right and (2) first in
time, first in right (i.e., priority). In contrast to the riparian doctrine, bene-
ficial use and not ownership of land is the basis of the right; likewise, priority in
time and not equality of right governs when there are conflicting demands for water.
The effect of the priority rule is that water shortages fall entirely on those who
last commenced use, rather than being borne by all users. This allows each potential
user to examine the remaining supply and determine whether there is sufficient
water to justify making an investment. The portion of an appropriative right which
is not used can be lost either by abandonment, or statutory forfeiture for nonuse
usually over a period of three to five years. This is often called the "use it
or lose it" rule.
Traditionally, five steps were necessary to initiate an appropriative water
right:
(1) The intent to appropriate water.
(2) Notice to others of the appropriation.
(3) Compliance with State prescribed formalities.
(4) A diversion of water.
(5) Application of the water to a beneficial use.
Modern permit systems, which exist in all appropriation States except Colorado,
satisfy the first two requirements. The third is simply a matter of following
prescribed procedures, including obtaining a State permit. The last two require-
ments will be discussed later in this chapter.
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Under the prior appropriation system, a junior appropriator is entitled to
water whenever it is not needed by a senior appropriator. He can insist that a
senior appropriator not take more than his appropriation allows. He also has the
right to prohibit any change in the stream conditions existing at the time his
appropriation was initiated if the change would damage his appropriation. This
right applies to changes in place of use (either point of diversion, point of
return, or both) and manner of use.
Statutory exceptions have been enacted in some States which modify the
strict priority rule. These include authority to reject an application if a
proposed appropriation is deemed to be against the public interest, preferences
to certain water uses regardless of priority, preferences and reservations in
favor of municipalities, and withdrawal of waters from general appropriation in
favor of existing or proposed public projects. Modifications affecting priorities
in periods of water shortage take the form of preferences.
The following sections discuss some of the basic principles of appropriative
water law in more detail. It is important to note that the following discussion
presents theory and that, in real application, these principles are applied with
differing degrees of firmness in the different States due to difficulties of proof
or the practicalities of enforcement.
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Beneficial Use
The prior appropriation system requires that all water appropriated must
be put to a beneficial use. The corollary to that is that water may not be wasted.
Appropriative law supports the concept of "maximum utilization" of the water
resource. The amount of water an appropriator may take is always limited by the
amount he can put to beneficial use. This included the amount consumed as well
as the quantity used to transport the water from the point of diversion to the
point of use. The requirement for beneficial use will result in the loss of a
water right (be abandonment or forfeiture) if the right remains unused for too
long. Different States define beneficial use differently. The determination of
whether a use is beneficial is initially an administrative determination and
ultimately a judicial function although in certain States statutes have listed
uses which may be beneficial.
The concept of beneficial use is not static; it has changed as needs, policies,
priorities and circumstances have changed. For example, during the period of time
in which the West was being settled, the primary criterion for determining whether
a use was beneficial was economic. Thus, such uses as irrigation, public water
supply, stock watering, mining, and industry power (including electrical generation)
have traditionally been considered beneficial. In all jurisdictions domestic
(household) use is beneficial and is given a preference over other uses. In recent
years instream values have begun to be recognized. Future energy development may
further impact the determination of what is a beneficial use.
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Even if a use is beneficial, the means of diversion by which it is effected
may be wasteful as is illustrated by the case of Empire Water and Power Co. v.
Cascade Town Co. 205 F. 123 (8th Cir. 1913) in which the Court held that while
use of water to enhance a profitable resort was beneficial, the means of diversion
involved was wasteful in view of competing demands. The beneficial use and waste
concepts will be addressed in further detail in Chapters V, VI, and VII with
particular emphasis on their relevance to maintenance of instream flows,
irrigation efficiency, and consumptive waste treatment technologies.
Diversion Requirements
A diversion of water has traditionally been considered an essential element
to perfect an appropriative right. Although many legal scholars believe that
there is no necessity for the diversion requirement under modern permit systems
in prior appropriation States, the requirement still exists in several States.
The scholars' reasoning is that the original purpose of the requirement was to
provide physical evidence of the intent to appropriate and notice that an appropriation
was being made. The permit system provides a superior means of satisfying the
requirements for notice and intent. Nonetheless, most prior appropriation States
still maintain the diversion requirement, except for certain statutory exceptions
relating to State appropriations. The diversion requirement will be addressed in
Chapter V as it relates to maintenance of instream flows.
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Loss of Water Rights
Under riparian common law, water rights are not lost through non-use. How-
ever, in theory, under prior appropriation systems if appropriated water is not used
for a certain period of time rights to that water can be lost, either through abandon-
ment or statutory forfeiture (usually non-use for 3 to 5 years). Only that portion
of the water right not used would be lost. The purpose for abandonment or forfeiture
of unused water, often referred to as the "use it or lost it" doctrine, is to ensure
that the available water supply picture is not distorted, that certainty is fostered
and that speculation in paper water rights is discouraged. "Use it or lose it" and
related concept of "saved" waters, waste and the duty of water will be analyzed in
Chapter V and VI in relation to CWA requirements regarding maintenance of instream
flows and irrigated agriculture.
Change of Use
In most prior appropriation States appropriators are allowed to apply to the
permitting authority for a change of use. Such a change of use will be granted
if it does not change the stream conditions that existed at the time the junior
appropriation was made. A change of use which harms a junior appropriation may
result in a suit for damages or an injunction against the change of use. When
the action is considered a reuse rather than a change of use, an action for damages
or equitable relief will not lie. Change of use and reuse will be discussed in
more detail in Chapter VIII.
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Appropriations on the Return Flow
In most prior appropriation States appropriators of stream flow are in fact
largely appropriating irrigation return flows and treated effluent. These appro-
priations vest rights in the appropriator. Chapters VI and VII will address these
rights in regard to nonpoint source control requirements and consumptive waste
treatment technologies.
Preferences
Several of the Western States set forth in their statutes preferences to be
utilized generally either in granting initial appropriations or in distributing
water during times of shortage. In a 1955 article in the Rocky Mountain Law
Review, Dean Frank Trelease made the following statement about preferences:
"Preference is a generic term, and a preferential right may have one of a number
of different effects. It may give persons who use waters for some purposes a
right to the water that is superior to prior rights for other purposes, or it
may give certain water users a better right than others using the water for the
same purposes. Some preferences permit a preferred user to condemn and pay for
non-preferred water rights; others withdraw water from general appropriation and
reserve it for future preferred uses; still others amount to rules for choosing
between substantially simultaneous applications for permits to appropriate the
same water. In addition, policies governing the actions of planning agencies
may require that certain uses must be given preference over others in the
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formulation of projects for the development and use of water." Ordinarily first
preference is given to domestic use and second to agriculture regardless of priority
in time. Instream uses are either not mentioned or are at the bottom of the list,
because historically they were considered to be of limited economic value.
Special Rules for Municipalities
In prior appropriation States, municipalities often have more flexibility
in water usage than in riparian States. In several riparian States municipalities,
in addition to their power of eminent domain, are usually allowed to divert
water for public supply. A water usage may be held reasonable for a municipality
which would not be reasonable for a private user. In prior appropriation States
municipalities may have leeway to dispose of surplus water up to the amount of
their diversion even though no water is returned to junior appropriators. Munici-
palities are usually not limited in their appropriations to the amount needed
at the time their rights are adjudicated, but are entitled to appropriate suf-
ficient water for probable future uses. See City and County of Denver v. Sheriff.
105 Colo. 193,96 P2d 836, 842 (1939). Chapter VII contains a more detailed discus-
sion of special rules for municipalities.
Legal Aspects of Federal-State Relations in Water Resources Management
Federal land management agencies such as the Bureau of Land Management and
the U.S. Forest Service, and Federal water resource development agencies such as
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the Bureau of Reclamation, the Corps of Engineers, the Federal Energy Regulatory
Commission, the Soil Conservation Service and the Tennessee Valley Authority,
have programs that affect the allocation of water.
The activities of the Federal government with respect to water quantity
allocation are:
(1) The Federal government builds projects all or a portion of the costs of
which are to be repaid by beneficiaries (e.g., Bureau of Reclamation, Corps of
Engineers, Tennessee Valley Authority).
(2) The Federal government builds projects and manages them for multi-purpose
uses, allowing profitable uses (e.g., power generation) to pay for less profitable
uses.
(3) The Federal government has reserved water rights to support specific
Federal purposes on lands withdrawn from entry (e.g., U.S. Forest Service, Bureau
of Land Management).
While the importance of Indian water rights in regard to Federal-State
relations is recognized, the complexity of the issues involved has resulted in
a decision not to address Indian water rights in this report.
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1. Specific Federal-State Conflicts
A. Reclamation Act of 1902, Federal Power Act
A series of court cases have addressed the interpretation of section 8 of
the Reclamation Act of 1902, which is substantially the same as section 27 of the
Federal Power Act. Section 8 provides:
That nothing in this Act shall be construed as affecting or intending
to affect or in any way to interfere with the laws of any State or
territory relating to control, appropriation, use, or distribution
of water used in irrigation or any vested rights acquired thereunder,
and the Secretary of the Interior, in carrying out the provisions
of this Act, shall proceed in conformity with such laws, and nothing
herein shall in any way affect any right of any State or Federal
government or of any land owner, appropriator, or user of water in,
to, or from any interstate stream or the waters thereof.
From 1946 to 1963, section 8 and section 27 were construed in four major
Supreme Court decisions. These decisions held that the statutes did not allow
the States to veto a Federal project which was inconsistent with State law.
Section 27, in First Iowa Hydro-Electric Co-op v. Federal Power Commission,
328 U.S. 152 (1946), was interpreted as not requiring compliance with
State laws but only as being "by way of suggestion" to the FPC on matters
on which it "may wish proof submitted to it on the applicant's progress." The
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section 8 cases, most notably Ivanhoe Irrigation District v. McCracken, 357 U.S.
275 (1958), in dictum suggest that section 8 is merely a property rule and that
section 8 has no State influence even in cases of clear Federal-State conflict,
although in Ivanhoe there was such a conflict. Under Ivanhoe the Federal govern-
ment may choose to ignore State law, but if it takes water rights vested under State
law, State water law defines the right taken and thus the measure of damages.
The issue was recently before the Supreme Court in a case where there was no
clear conflict. In California v. U.S., 46 U.S.L.W. 4997 (U.S. July 3, 1978), the Su-
preme Court reversed the dictum in the Ivanhoe case and held that a State may impose
any condition on "control, appropriation, use or distribution of water" in a Federal
reclamation project that is not inconsistent with clear congressional directives
respecting the project. In that case the Bureau of Reclamation was planning to
build the New Melones Dam, a Congressionally authorized multi-purpose dam which is
part of the Central Valley Project in California. The Bureau applied to California
for a permit to appropriate the water that would be impounded by the dam and later
used for reclamation. California, as it is allowed to do under State law, granted
the permit but placed several conditions on it, the most important of which prohibited
full impoundment until the Bureau was able to show firm commitments or at least a
specific plan for the use of the water. The purpose of this condition was to protect
for as long as possible a white water area on the Stanislaus River. The Federal
government argued that California did not have the authority to impose such con-
ditions based on the earlier line of cases defining section 8. The Court rejected
the earlier cases and held for California.
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The specific impact of the New Mel ones decision on future Federal develop-
mental projects is as yet undetermined; however, it is obvious that without a
clear conflict the effective level of State control has increased significantly.
2. Federal Reserved Rights
On the same day as the New Melones decision, the Supreme Court also decided
the Rio Mimbres case in U.S. V. New Mexico. No 77-510, (July 3, 1978). The issue
in that case was the quantity of water which the United States reserved out of the
Mimbres River when it set aside the Gil a National Forest in 1899. In 1908, in
Winters v. U.S., 207 U.S. 564 (1908), the Supreme Court held that the Federal
government could create water rights as a proprietor as well as a sovereign,
thus recognizing the concept of Federal reserved rights. Where private rights
have been established, the Federal government retains a proprietary interest,
sufficient at least to enable Congress to withdraw such water from further
appropriation under State law and to reserve it for Federal use in connection
with Federal lands. This proprietary interest arises from prior Federal ownership
in Western lands. In the eastern States where there was no original Federal land
ownership, water rights of the Federal government are based on riparian theory,
as with any other land owner. Under the reserved rights doctrine when Federal
lands are withdrawn or reserved for specific purposes, either by legislation or
Executive Order, without any mention of water, unappropriated water will implicitly
be reserved in an amount sufficient to satisfy the purposes of the withdrawal or
reservation. In general, these Federal reserved rights have not been quantified,
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which has inhibited the ability of States, where such rights exist, to manage
their water resources.
Those water rights which vested before Federal reservation remain intact and
have a higher priority than the Federal rights. However, future State allocations
of water rights on Federal land are junior to the Federal reserved rights. Federal
reserved rights are based on the purpose for which the reservation or withdrawal
was made. The Winters case involved reserved rights on an Indian reservation as
did another leading case, Arizona v. California, 373 U.S. 546, (1963). In
Cappaert v. U.S., 426 U.S. 128 (1976), the Court interpreted the reserved rights
doctrine to include sufficient groundwater to maintain minimal lake levels at
Devil's Hole National Monument, finding that such water was necessary to fulfill
the purpose of the reservation.
In the Rio Mimbres case the water reservation in question was implied rather
than express. The United States claimed sufficient water to maintain a minimum
instream flow for aesthetic, environmental, recreational, and fish purposes. The
Court held that maintenance of instream flow was not a purpose for which the
National Forests were reserved. This ruling apparently applies to all National
Forests reserved prior to the enactment of the Multiple-Use Sustained-Yield Act
of 1960 unless express reservations of water for instream flow purpose were made
at the time of reservation. Specifically, the Court said that "(t)he Multiple-
Use Sustained-Yield Act of 1960 does not have a retroactive effect nor can it
broaden the purposes for which the Gil a National Forest was established under
the Organic Act of 1897."
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The impact of the Rio Mimbres case is as yet untested. It is clear, however,
that the reserved rights of the Federal government are substantially less than had
been thought prior to the Court's decision. When Rio Mimbres and New Mel ones are
read together with section 313 of the Clean Water Act, which requires compliance
by the Federal government with State procedural and substantive requirements for
water pollution control, the authority of the States over total water resource
management has been effectively expanded through clarification of the law.
Interstate Relationships
The main vehicle for determining the amount of water available to States
which share interstate streams has been the interstate compact. These compacts
fix the share to which each State is entitled. Compacts are more than contracts
among the States since the Federal government must consent to a compact, although
the effect of Federal consent is unclear. The major issue, as yet unanswered,
is whether a compact can bind the Federal government if Congress has consented to
it. Generally individual holders of water rights are subject to the compact and
their rights may be curtailed by the State in furtherance of its compact duties.
A compact generally makes gross allocations among the States and fixes the
rights and duties of the individual States. For example, in the Upper Colorado
River Basin Compact, Utah bears most of the evaporative losses but contributes
a relatively small share of the supply, so it would be unfair to charge Utah's
share with all evaporation losses. Thus, the compact fixes a formula whereby
the Upper Basin States share reservoir evaporation losses in their common duty
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toward Arizona, California, and Mexico. There is persuasive evidence that the
Colorado River Compact was based on above average runoff. Consequently, allocations
to States may exceed the long-term average flow.
In the East the allocation of the Delaware River is controlled in part by
the Delaware Basin Compact. The compact procedure has been used for ad hoc
apportionment. In New Jersey v. New York, 357 U.S. 955 (1954) the Supreme Court
imposed minimum flow release obligations in New York to protect the downstream
States of New Jersey and Pennsylvania. The releases limit New York's right to
withdraw water from the Delaware watershed to prevent, among other things, salt water
intrusion in the Delaware. The Court's decree is supplemented by the Delaware
Basin Compact which gives a commission discretionary apportionment powers in
times of drought. This power was invoked during the 1965 drought to limit
New York City's diversion and to require reservoir releases.
Interstate water compacts raise complex issues of water management efficiency
and use in Western States. In some cases they promote the "use it or lose it"
policy since each State is reluctant to release any of its entitled water flows
to downstream States. In other cases the compacts promote maintenance of instream
flows because they require significant amounts of flow to be left in streams for
downstream States, thereby limiting the amount of diversion and consumption that
can occur in some States. Interstate compacts can allocate more water than actually
exists, thus creating both quantity and quality problems.
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Federal Programs Impacting Water Allocation
Direct responsibility for allocating quantities of water is at the State
level. The Federal interest in water is twofold -- economic and environmental.
The economic interest has been expressed historically through Federally built
water resource development projects. The environmental interest is more
recent and is expressed through legislation administered by agencies such as EPA,
the Fish and Wildlife Service and the Office of Surface Mining. The two interests
have not been well coordinated with each other and, in many instances, have been
in direct conflict. However, recently strong efforts have been made to integrate
the two interests and achieve a cohesive national policy.
The following discussion of Federal programs which impact water allocation
will address surface water. Chapter VIII of this report will address Federal activ-
ities relating to groundwater management. The authorities of the Federal govern-
ment in regard to surface water allocation vary greatly. The Federal government
does not directly allocate water in the sense that States allocate quantities of
water. However, various Federal programs can significantly impact the amount and
location of water available for allocation and what it is used for. Federal authori-
ties fall into several broad classes.
0 Water resource development programs.
0 Federal land management authorities.
0 Federal water resource planning programs.
0 Federal policy development.
0 Coordination.
0 Service and Technical Assistance programs.
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Water Resource Development Programs
The Bureau of Reclamation, the Corps of Engineers, the Tennessee Valley
Authority and the Soil Conservation Service are the Federal agencies primarily
involved in water development projects. Such projects are often initiated at
the request of the States. The State is responsible for allocating water
developed by Federal projects and controls the extent to which that water is
left in the stream. The Federal government must obtain both flow rights and
storage rights from the States. However, the Federal agencies can have signif-
icant impacts on the amount and timing of water available in a stream because
they control the scheduling of releases from reservoirs.
While the Federal Energy Regulatory Commission licenses rather than develops
water resources projects, the conditions contained in its licenses may have a
significant impact on water quality available in a stream through scheduling of
releases.
The specific relationship between Federal development programs and maintenance
of instream flow is analyzed in Chapter V. Chapter VI discusses the impact
of these programs on irrigated agriculture, with particular emphasis on the price
of Federally developed water.
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Federal Land Management Authorities
Federal land management agencies, including the Bureau of Land Management
(BLM), U.S. Forest Service and the National Park Service, have certain rights to
use water flowing on Federal lands. The BLM is in the process of developing
a position regarding its authorities over water on BLM lands. The U.S. Forest
Service has Federal reserved rights which have been defined in the Rio Mimbres
case discussed earlier in this Chapter. The issue of Federal reserved rights
has been of particular interest to the States, which desire their quantification
in order to know the amount of water which is available for them to allocate.
Indian reserved rights are not addressed in this report.
Federal Water Resource Planning Programs
The Water Resources Planning Act of 1965 (P.L. 89-90) created the Water
Resources Council, and was enacted "to encourage the conservation, develop-
ment, and utilization of water and related land resources of the United States
on a comprehensive and coordinated basis by the Federal Government, States,
localities and private enterprise." The Water Resources Council, composed of
heads of various Federal departments and agencies, was directed by the Act to
establish principles, standards and procedures for preparation of basin plans,
and for formulation and evaluation of Federal water and related land resource
projects. The basic planning objectives are national economic development and
environmental quality. The WRC has specified three (3) levels of planning:
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° Level A: Framework Studies and Assessments, which are general inventory
and evaluation studies of water resource programs and problems.
° Level B: Regional or River Basin plans, which are reconnaissance level
evaluations of resources in a selected area. They are designed to resolve
complex long-range problems by identifying and recommending actions to
be taken by individual areas of government.
0 Level C: Implementation Studies, which are specific water development
project plans for the purpose of project authorization and funding.
This planning is carried out by River Basin Commissions provided for in the
Act. Six basin commissions are presently operating: The Ohio, Great Lakes, Mis-
souri, Upper Mississippi, New England and Pacific Northwest. Section 209 of the
Clean Water Act requires the preparation of Level B plans for all basins by 1980.
Priority is to be given to basins which overlap with designated 208 planning areas.
Federal Policy Development
In June 1978, the President's Water Policy Message was delivered. The
Water Policy is an attempt to address some of the inefficiencies associated with
water resource development, for example, by giving a higher priority to projects
which the States support, or by revising the guidelines for water resource project
planning. On July 12, 1978, a series of directives was issued to implement the
policy. Interagency task forces were established under the direction of the
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Secretary of the Interior to develop the specific elements necessary to insure
effective implementation of the policy. The President reaffirmed existing Federal
policy that the primary responsibility for water resource management is at the
State level.
Of particular interest to this report are the proposed revisions of WRC
Principles and Standards to ensure adequate consideration of environmental values
in Federal water resource development planning, and increased emphasis on maintenance
of instream flows and groundwater management. Since the effort is still on-going
the specific impact of the policy implementation effort on water resource and
water quality management cannot yet be assessed.
Coordination
Among the existing mechanisms and legislation available for coordination of
Federal water resource programs and Federal environmental protection programs are
the River Basin Commissions, the Fish and Wildlife Coordination Act, and the
National Environmental Policy Act.
The Water Resources Planning Act provides for the function of River Basin
Commissions. These commissions are designed to serve as the principal agency in
the multi-State river basin for coordination of water resources planning, and to
prepare comprehensive coordinated joint plans for water and related land management.
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However, as currently constituted the Water Resources Council can at best play
only a limited coordination role between water quantity and water quality consi-
derations because the Water Resources Planning Act emphasizes water resource develop-
ment and places water quality as a secondary priority.
The Fish and Wildlife Coordination Act requires that fish and wildlife values
be considered in advance of project construction licensed or funded by the Federal
government. It requires that fish and wildlife receive equal consideration with
other project purposes, provides for enhancing these values where possible, and
authorizes compensatory features where some damage is inevitable. The July 12
directive on Environmental Quality and Water Resources requires that the Interior
Department, in consultation with the Commerce Department, promulgate regulations
defining requirements and procedures for compliance with the Fish and Wildlife
Coordination Act. Within three months after promulgation, Federal agencies that
consult with the Fish and Wildlife Service will publish the procedures that they
will follow in implementing these regulations.
The National Environmental Policy Act (NEPA) requires that Environmental
Assessments (EA) and, in certain instances, Environmental Impact Statements (EIS)
be prepared for proposed Federal activities to determine their possible impact on
the environment. NEPA has the potential for coordinating water quality and water
quantity concerns through the EA, EIS, and citizen suit provisions.
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Coordination between Level B (WRC) and Water Quality Management
planning is one of several potentially useful tools for identifying and
minimizing quality/ quantity conflicts. Level B plans can provide a
variety of data, project future uses, and identify and screen potential
solutions and the impacts of these solutions on flow levels. The River
Basin Commisions provide one forum for achieving coordination and addressing
conflicts. However River Basin Commissions have not been established for
many parts of the county.
The Water Quality Management planning process also provides several other
measures for identifying and resolving conflicts. They include:
0 Bi-lateral interagency agreements between EPA and eleven (11) different
Federal departments and agencies, for coordination of 208 plans with
these other programs;
0 Policy advisory committees for each 208 planning process. These are
composed of local officials and representatives of interested State
and Federal agencies.
0 EPA's Regional review and approval process, which should identify
failures of coordination on the part of the 208 plans.
0 State/EPA Agreements.
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Service and Technical Assistance Programs
There are numerous Federal programs which provide financial and technical
assistance in areas related to water resources management. These include loan and
cost sharing programs under the Department of Agriculture, HUD, and the Department
of Commerce, and technical assistance programs under such agencies as the Soil Con-
servation Service, Army Corps of Engineers, and U.S. Geological Survey. The loan
and grant programs can influence water resource management by encouraging or dis-
couraging certain types of developement in specific geographical areas. The
technical assistance programs have potential for assisting in better coordination
of water development and water quality interests through providing information and
assistance where it is most needed.
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CHAPTER V
INSTREAM FLOWS
Minimum stream flows are frequently necessary to protect water supply, fish
and wildlife habitat, public health, recreation, navigation, ground water recharge
and other uses. Historically, State and Federal programs for the allocation of
water have tended, for socio-economic reasons, to give a higher priority to off-
stream uses that are incompatible with the maintenance of instream flows. Clean
Water Act programs are intended to protect water quality for both instream and
offstream use. However, they often depend on the existence of minimum flows,
both because treatment required for pollutant discharges are frequently designed
with specific flow levels in mind, and because minimum flows in themselves may
be necessary to meet the objectives of the Clean Water Act.
Section 101(g) of the Clean Water Act recognizes the need for coopera-
tion between the States and Federal agencies in order to better resolve conflicts
when they arise. This chapter discusses how existing programs deal with in-
streams flows, and how they deal with conflicts between instream and offstream
uses. The chapter is divided into three parts:
o a brief list of some situations that lead to conflicts between instream
and offstream uses
o a description of aspects of Federal and State allocation programs that
promote or prevent the maintenance of instream flows.
o an analysis of relationships between allocation programs and Clean Water
programs.
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Characteristic Problems
The problems discussed below are conflicts between programs, rather than
simply water quality problems. Depleted flows are not necessarily problems in
themselves, since the primary responsibility for allocating water between in-
stream and offstream uses rests with the States, and instream uses are not
inherently more valuable than offstream uses. However, Clean Water Act pro-
grams in many instances depend on the existence of instream flows, and in some
cases Clean Water Act programs and water allocation programs unnecessarily defeat
each others purposes, rather than supporting each other, or at least reaching
accommodations. The following discussion briefly identifies a few of these
conflicts that center around the maintenance of instream flows.
Offstream diversions for irrigated agriculture, municipal water supply,
industrial and other purposes may impair or preclude the use of water for a
number of purposes or uses that require instream flows, including fisheries,
recreation, navigation, hydropower, aesthetics and ground water recharge. (Pol-
lution problems resulting from irrigation are discussed in Chapter VI, but irrigation
is also a significant contributor to the general flow depletion conflicts discussed
in this chapter).
Waste treatment requirements contained in NPDES permits are often
determined on the basis of particular stream flow levels. When diversions and/or
consumptive uses reduce flow below these levels, higher concentrations
of pollutants result, and treatment requirements may no longer be sufficient
to protect water quality. For example, inadequate instream flows may result in
significant instream temperature rises which can adversely affect the instream
environment. On the other hand, maintenance of stream flow might limit the ability
of water right holders to change their points of diversion or return or to perfect
their water rights.
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Impoundments can create the same problems of impaired or precluded
instream uses and ineffective waste treatment requirements. Flow regulation
to assure minimum instream flows may conflict with other purposes of the pro-
ject, or State allocation law. For example, operation of hydropower projects
to maximize electric power generation may result in flow reductions that are
incompatible with the maintenance of downstream fisheries.
Not only depletion of flow but changes in flow patterns can lead to con-
flicts. Impoundments for hydropower, or to provide water for irrigation, water
supply or other purposes during dry seasons will cause changes in flow patterns,
which may impair the biological productivity of streams, lakes or estuaries.
Both reductions of flow and changes in flow patterns may lead in some instances
to salt water intrusion that disrupts existing ecosytems.
Consumptive waste water treatment may reduce flow levels and thereby
preclude instream uses. Regionalization of sewage treatment works may change
the location of flows and thereby cause flow depletion in specific areas. These
problems differ from the others discussed in this Chapter because they address
the effects of one Clean Water Act program on another in regard to instream flow
maintenance. This Chapter briefly discusses these instream flow conflicts,
while Chapter VII addresses conflicts between consumptive waste treatment
and water allocation programs generally in greater detail.
Of course, the water quality and water allocation programs often complement
each other. For example, water projects often maintain minimum flow levels by
regulating flow. Some stream flows in water-poor areas consist primarily of
releases from impoundments during the dry season.
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STATE AND FEDERAL ALLOCATION PROGRAMS AFFECTING INSTREAM FLOW
This section briefly describes aspects of the State and Federal allocation
laws and programs that specifically refer to instream flows. Chapter IV includes
a more general description of these programs and laws. The appendix to this
Chapter discusses specific permit laws in riparian States that support the
maintenance of minimum stream flows. (See Appendix C.)
Riparian States
1. Natural Flow Jurisdictions - Under the natural flow doctrine, each
riparian proprietor on a water course is entitled to have the stream flow through
his land in its natural condition, not perceptibly retarded, diminished or pollu-
ted by others. Five States adhere to this doctrine in most respects.
The natural flow doctrine theoretically encourages the maintenance of
instream flows. However, the only way to resolve conflicts among water users
is costly, time-consuming litigation between private parties. In practice,
impoundments and diversions still can result in considerable reductions in flow.
2. Reasonable Use Jurisdictions - The reasonable use doctrine gives each
riparian land owner the right to use the water for any beneficial purpose, pro-
vided that the intended use does not unreasonably interfere with legitimate uses
by other proprietors on the stream. Most riparian States apply the reasonable
use rule to determine the validity of a particular use.
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In time of abundant flow, the reasonable use doctrine works well to
assure maintenance of minimum instream flows. It is less dependable in times
of low flow. A series of riparian owners might all be making a reasonable
use of the water, but their cumulative withdrawals may reduce the flow below
the minimum needed to protect water quality. The remedy to resolve conflicts
among water uses in this situation is costly, protracted private litigation to
determine which uses remain reasonable and which ones do not. Minimum flows
will not necessarily be maintained in these situations.
3. Riparian Permit Jurisdictions - Eleven riparian States have enacted
statutes that use permit systems to determine rights to water. Generally, these
permit systems exempt certain water uses, or only apply to certain areas within
the States. Resolution of water use conflict is left to the courts, as in tradi-
tional riparian jurisdictions. Several permit States include specific require-
ments for maintenance of minimum stream flows. (See Appendix C.)
Prior Appropriation States
Water law in prior appropriation States is less likely to support mainten-
ance of minimum stream flows. Appropriation States are for the most part arid
or semi-arid and there are more conflicts over scarce waters. Prior appropria-
tion law has also been traditionally oriented towards offstream, consumptive
uses. Several traditional legal doctrines may bar appropriations for instream
uses. (See Chapter 4 for a more detailed discussion of these doctrines).
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1. Beneficial Use - The holder of a water right must put the water to
beneficial use, or the water right will be lost. The traditional definition
of beneficial use has been in terms of private economic benefit. Since main-
tenance of stream flow is difficult to define in these terms, it is very
possible that attempted instream appropriations may be denied as non-
beneficial uses. In recent years there has been a trend toward recognizing
instream uses as beneficial. By statute, Colorado has classified instream
uses as beneficial when the appropriation is made by the State.
2. Diversion Requirement - In some States, a user must divert the water
out of the stream in order to make a valid appropriation. Instream uses do not
involve such a diversion, so this requirement would automatically require denial
of an attempted instream appropriation. As recently as 1972 the New Mexico
Supreme Court refused to recognize an intended appropriation based on natural
irrigation, because there had been no man-made diversion. A California trial
court recently held that a public instream use appropriation may be rejected
because the appropriator lacks possession of the water. In 1973 the Colorado
legislature overturned a 1965 Court decision which involved an attempt to
appropriate for minimum flows. The Court held a diversion was required;
subsequently a statute was enacted which authorized instream appropriations
by the Colorado Water Conservation Board.
Instream appropriations may still be effective, even though most streams
in prior appropriation states are already over appropriated. Many senior appro-
priators are downstream, and substantial flow remains in the stream for these
downstream users. Instream appropriators, even if they are junior to the down-
stream users, have the right to challenge changes in the place of diversion that
would affect these flows.
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Federal Agency Programs
Federal agencies do not directly allocate quantities of water, but Federal
water projects have impact on the amount, timing and location of water available
for instream flows. The authority of Federal agencies to make decisions on the
basis of instream flows is determined by the project's authorizations and a number
of more general statutes. The President's Water Policy Initiative emphasized the
importance of considering instream impacts in Federal water project planning
and management.
1. Specific Project Authorizations - The authority of Federal agencies to
operate existing projects under their authorizing legislation for instream flow
purposes is uncertain. In general, Federal agencies claim to have this authority
for future projects, but frequently not for existing projects. Studies of
authorizing legislation in certain regions have indicated that most
authorizations include a catch-all phrase such as "other purposes," and
that the projects were frequently operated for other purposes, which
were not explicity mentioned in the authorizing legislation. (See
Anadramous Fish Law Memo, June 1979, National Resources Law Institute,
Lewis and Clark Law School, p. 4).
2. General Statutory Authorizations - Several dozen statutory provisions
can potentially be used by Federal projects to maintain and protect stream flows.
(See Federal Legislation for the Protection and Maintenance of Instream Flows
prepared by Instream Flows Working Group of the President's Water Policy Task
Force). In addition to the statutes of broad applicability discussed in Chapter
4, the most important are the Fish and Wildlife Coordination Act, the Endangered
Species Act, The Wild and Scenic Rivers Act, and Clean Water Act Sections 102(b)
and 404 (discussed later in the chapter).
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The Fish and Wildlife Coordination Act has been used to assure minimum flows
in both Federal and non-Federal water resource projects. The Act requires that
fish and wildlife values be considered in advance of project construction licensed
or funded by the Federal government. It requires that fish and wildlife receive
equal consideration with other project purposes, provides for enhancing these
values where possible, and authorizes compensatory features where some damage
is inevitable.
Under the Endangered Species Act, Federal agencies must not carry out acti-
vities which jeopardize the continued existence of any endangered and threatened
species or result in the destruction or adverse modification of such species.
Instream flow necessary to fully protect designated species could be required
below any future reservoir project.
Under the Wild and Scenic River Act, designation as a wild and scenic river
has the effect of reserving historical flows since new stream diversions and
Federally funded water resource developments are prohibited and may be restricted
below or above the designated river segment.
Section 102(b)(l) of the Clean Water Act requires consideration of storage
for regulation of stream flow in planning of reservoirs by Federal agencies.
EPA has the authority to determine the need for stream flow regulation for
water quality purposes, and to determine the proportion of project costs that
can be attributed to water quality. Other agencies determine the need for in-
stream flow regulation for other purposes, including navigation, salt water
intrusion, recreation, aesthetics, and fish and wildlife.
Water Policy Initiatives - The approach of Federal agencies to maintenance of
instream flows will be changing in response to the President's Water Policy
IP*
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message, and his directive on Environmental Quality and Water Resources manage-
ment. The Water Policy message directed Federal agency heads to cooperate with
the States and provide leadership in maintaining instream flows through joint
assessment of needs, increased assistance in gathering and sharing of data,
appropriate design and operation of Federal water facilities, and other means.
The message also stated: "New and existing projects should be planned and
operated to protect instream flows, consistent with State law and in close
consultation with State."
The Environmental Quality and Water Resources directive of July 12, 1978
acknowledges that the States have the principal responsibility for protection
of instream flows, and that the Federal government has the following responsi-
bilities:
- to reduce the extent to which Federal actions contribute to and exacer-
bate (instream flow) problems
- to exercise existing Federal authority, consistent with State laws, to
remedy these problems
- to cooperate affirmatively with States in developing programs to solve
these problems
The July 12 directive also will change implementation of the Fish and Wild-
life Coordination Act. The Interior Department, in consultation with the
Commerce Department, will promulgate regulations defining requirements and
procedures for compliance with the Fish and Wildlife Coordination Act. These
regulations were proposed on Friday, May 18, 1979 (40 CFR 29300). Within three
months after promulgation, Federal agencies that consult with the Fish and
Wildlife Service will publish the procedures that they will follow in imple-
menting these regulations.
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RELATIONSHIP WITH CLEAN WATER ACT PROGRAMS
The most significant Clean Water Act programs affecting instream flows are
the water quality standards program, the water quality management planning pro-
gram, the permit program for discharges of dredged and fill material, and programs
requiring consumptive waste treatment. These programs are briefly described in
Chapter 3. The remainder of this chapter addresses the relationship between
these programs and State and Federal water allocation programs.
The most complex problems involve attainment of water quality standards in
low flow conditions. Most of the discussion addresses the basic alternatives
for dealing with water quality standards problems and policy and legal constraints
on these approaches. Institutional arrangements for resolving these problems
are discussed in the section on Water Quality Management planning. Other pro-
blems are discussed more briefly.
Water Quality Standards
The water quality standards for a body of water include: designated uses
such as fishing or public water supply; criteria which are generally instream
concentrations of pollutants which must be stringent enough to protect the
designated use; and an antidegradation statement. Reduction in flow can result
in violations of water quality standards, because pollutant discharge limitations
that implement water quality standards are generally based on minimum stream
f1ows.
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Assumptions about flow are often essential to developing controls for
discharges of pollutants. Water quality standards frequently serve as the basis
for developing enforceable discharge limitations for municipal and industrial
discharges. The precise numerical limitations for individual discharges are
developed by determining the capacity of a stream to assimilate waste, and allo-
cating this wasteload among existing and potential dischargers on the stream.
The assimilative capacity of a stream will vary with the flow level.
Water quality standards generally include a minimum stream flow on which
wasteload allocations are based on. Frequently, this is the 7-day average low
flow expected to occur during any 10-year period (7Q10). Effluent limitations for
dischargers of pollutants are established to protect standards at these low
flow levels. Standards for the most part do not require that any specific mini-
mum flow level be maintained at all times, although States do have authority to
establish such standards.
Diversions and impoundments may reduce flow below the levels upon which the
wasteload allocations are based. Discharges from point sources may then lead
to violations of water quality standards. Under existing law, planners theore-
tically have four options for addressing these problems: 1) increasing levels
of treatment, 2) requiring minimum flows by limiting diversions or consumptive
uses, 3) augmenting stream flows, and 4) relaxing water quality standards. The
following section discusses the problems with these approaches in greater detail.
It focuses on what can be done under existing laws and policies. The alternatives
chapter discusses changes that might be made to existing policies that might re-
sult in better decisions.
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1) Increased Levels of Treatment
Increasing levels of treatment will be difficult. First of all, development
of wasteload allocations is frequently expensive and time consuming, and plan-
ning funds for developing them and revising them are limited. In addition,
wasteload allocations are generally devised as NPDES permit conditions. These
permits are almost always issued for five year periods, and it is difficult
to re-open them on the basis of revised allocations. Finally, Congress is re-
quiring more and more stringent technical justifications before it will fund
plants using expensive advanced waste treatment to meet water quality standards.
There are other possible complications. Because wasteload allocations are
generally designed on the basis of the 7-day/10-year low flow, they may require
levels of treatment in excess of those needed to meet water quality standards
much of the time. Flow and temperature related permits allow less stringent
levels of treatment when stream flow is above criteria low flow levels, although
they are difficult to develop.
2) Minimum Flow Requirements
Requiring the maintenance of minimum stream flows might be equally difficult,
because of both State water laws and Clean Water Act programs. Existing water
rights for offstream uses may prevent water from being kept in the stream. State
laws that treat instream uses as nonbeneficial uses, or that require diversions
in order to obtain water rights, may make it impossible to assure that water is
left in the stream even if there is an attempted instream appropriation.
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Existing Clean Water Act programs have not frequently been used to establish
minimum flow requirements, and their use has generally been limited to condition-
ing future diversions and impoundments to prevent further reductions in flow,
rather than requiring restoration of historic flows. Section 404 authorizes
the inclusion of minimum flow requirements as conditions of permits for the
discharge of dredged or fill material, and Section 401 authorizes the inclusion
of conditions to protect water quality in Federal licenses for activities that
may result in the discharge of pollutants. Under Section 313, Federal projects
must comply with State water quality standards, which can contain minimum flow
requirements.
3) Flow Augmentation
Flow augmentation by other sources to meet the base flows assumed in the
wasteload allocations may be possible only in limited situations. The largest
obstacle is likely to be the availability of water, although both State water
law and laws governing the operation of Federal projects also limit the appli-
cability of flow augmentation.
Particularly in arid regions and dry seasons, water is not likely to be
available for stream flow maintenance. It may not be possible for State govern-
ments or anyone else to acquire enough water rights to assure minimum flows.
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It is not clear who would own instream rights, or pay for them. Instream flow
rights are increasingly being recognized under State law (see appendix to this
chapter), but actual purchase or appropriation by States or private parties has
not occured on a widespread basis. Purchase of water rights is not an eligible
cost for Clean Water Act grants for construction of publicly owned waste treat-
ment works. In any case, water might not be available except at considerable
cost.
State and Federal laws governing the operation of water projects are less
likely to be obstacles to the maintenance of flow levels than the economics of
operating these projects. Authorizing statutes do not necessarily preclude
projects from releasing water to maintain minimum flows, but releases to maintain
stream flows might interfere with other uses of a project, such as hydropower.
The portion of a Federal project's cost that can be attributed to flow aug-
mentation is determined by EPA under Section 102(b) of the Clean Water Act. That
section provides that "... storage and water releases should not be provided
as a substitute for adequate treatment or other methods of controlling waste at
the source."
4) Downgrading Water Quality Standards
Relaxation of water quality standards might not be justified. EPA regula-
tions allow for downgrading of standards only in limited situations. A State
must demonstrate that the existing designated use is not available because of
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natural background or irretrievable man-induced conditions, or it must be able
to show that compliance by dischargers with effluent limitations necessary to
meet the standards would result in "substantial and widespread adverse social
and economic impact." Of course, minimum flow requirements may be irrelevant
in some situations, as in some naturally intermittent streams, and some streams
consisting primarily of waste water effluent.
Case Studies
Case studies conducted for EPA illustrate some of the problems involved in
chosing among these approaches. On the Winooski River in Vermont the economics
of producing power often leads utilities to severely restrict stream flow,
particularly during summer months when natural flows are already low.
The primary alternatives for protecting water quality standards in this
situation are: advanced waste water treatment by municipalities and regulation
of the dam operation. Under the first alternative, costs are borne by the water-
using communities that must pay higher construction and operation and maintenance
costs. Under the second, costs are borne by power users. Existing institutional
arrangements were not designed to balance the cost between these two types of
water users.
The principal agencies involved are the State Agency of Environmental
Conservation, the State Public Service Board, and the Federal Energy Regulatory
Commission. The State Agency of Environmental Conservation develops the waste-
load allocations that determine the level of pollutant reduction that dischargers
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must meet in order to comply with water quality standards. The wasteload alloca-
tions will be adopted by the State after formal rulemaking hearings.
The State water quality standards require that 7-day/10-year low flows be
used in determining wasteload allocations. Requiring flow maintenance at this
level would benefit the local communities paying for waste treatment, while
allowing reduced flows would benefit utility rate payers. The administrative
procedures are designed to involve members of communities affected by dischargers,
rather than all utilities customers.
The Public Service Board (PSB) also lacks a specific mandate to address the
problem. However, new dams require a certificate of public good that entails a
finding that proposed construction will not have an undue adverse effect on water
purity, and these issues can be addressed in hearings. The PSB also has ongoing
jurisdiction over existing dams, but the authorizing statute does not make any
direct reference to water quality.
Public Service Board decisions are subject to the supervisory authority of
the Federal Energy Regulatory Commission (FERC), which regulates non-Federal
hydroelectric projects. Existing licenses are not routinely reopened, but in
at least some instances FERC retains the authority to reopen them. However, FERC
currently is not required to reopen licenses, and it might be reluctant to in
light of the impact of increased stream flow on its principal mission, the pro-
motion of power generation.
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Conflicts involving hydroelectric dams may arise more frequently in the
future, as hydroelectric power is considered more frequently as an alternative
to expensive and uncertain supplies of power from oil and nuclear plants.
The Willamette River in Oregon has been cited as an example of the use of
reservoir releases to meet base flows included in water quality standards. Re-
servoirs on the Willamette were constructed for the purposes of flood control,
navigation, irrigation, and hydroelectric power generation, but not specifically
for water quality enhancement. In summer months, the risks of floods are small,
and low flows have required the release of stored water for irrigation and navigation.
Water quality standards were met during some critical low flow periods because
of these storage releases for other uses.
The State also requires compliance with water quality standards by waste
treatment at the source. State pollution authorities regarded the flow augmenta-
tion as a supplement to and not a substitute for waste treatment. Compliance
with water quality standards in the Willamette thus depends on both waste treat-
ment, and flow releases, since no practicable amount of flow released from exist-
ing reservoirs would assure compliance with standards. Furthermore, costs of
treatment would be greatly increased without augmentation.
Minimum Flow Requirements
Water quality standards are established to achieve the goal in Section
101(a)(2) of the Clean Water Act, which is a level of water quality that provides
for the protection and propagation of fish, shellfish, and wildlife, and provides
for recreation in and on the water. Clearly, some minimum flow will be necessary
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to attain these goals, where they are attainable. Minimum stream flows in water
quality standards thus not only serve as the basis of waste treatment require-
ments, minimum flows may be necessary in themselves to meet the goals of the Act.
As discussed earlier, the flow level generally included in water quality
standards is the 7Q10, or some other flow that represents a drought level. This
flow is the level at which wasteload allocations are established. Water quality
standards do not generally require that flows be maintained at any particular
level. Thus, flow levels in water quality standards are not necessarily based on
the amount of water actually needed to protect instream use.
The amount of water necessary to maintain, for example, an adequate aquatic
habitat will vary with the location and the species involved. Factors include
the ability of the stream to cleanse the bed of deposited silts; velocity; depth;
channel characteristics; temperatures; supportive species of vegetation; and the
rate of change of the flow level within the channel.
EPA does not require that standards include flow criteria to protect the use
included in the standards although States have the authority to establish such
criteria. In June 1978, EPA published an advanced notice of proposed rule-making
that raised the possibility of a change in this policy, while ruling out the
option of promulgating flow criteria when the States choose not to do so.
As the earlier discussion of waste treatment requirements indicates, State
water allocation laws may not always be hospitable to instream flow maintenance.
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Interpretations of beneficial use and diversion requirements may prevent instream
appropriations. On the other hand, many State water laws are compatible
with instream flow and a number of States have programs for protecting
instream flow. In any case, the decision between instream and offstream
uses is primarily the States' responsibility. The water quality standards
setting process is potentially useful for identifying stream segments
where instream flow protection is feasible.
Water Quality Management Planning
The Clean Water Act established several planning programs, which EPA has
consolidated to a large extent under the title of Water Quality Management plann-
ing. These potentially provide a vehicle for identifying and resolving quality/
quantity conflicts. Studies conducted for EPA indicate that, while WQM planning
has been useful in identifying problems, it has not generally been as helpful in
resolving them.
A number of 208 agencies addressed problems with water quality standards
violations attributable to flow depletion. In one case, 208 studies led to water
quality standards revisions and relaxation of permit requirements for municipali-
ties, resulting in cost savings in waste treatment. In another, the agency
succeeded in obtaining conditions to protect flow levels from withdrawals. In
both instances, 208 planning provided the vehicle for studying the conflict and
developing solutions, but the actual resolution of the conflict required changes
under other provisions of the Clean Water Act.
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Historically, planning for water quality and planning for water resources
have been conducted separately. This is due in part to fundamental differences
in the objectives and methods of these programs.
Water quality management planning (see Chapter III) is designed to reduce
pollution to protect both instream and offstream uses, while water resource plans
have traditionally been oriented towards the economic benefits of water develop-
ment, particularly irrigated agriculture, energy, navigation, flood control and
recreation. Water quality management planning has been on an areawide or basin-
wide basis, while water resource plans are generally prepared on a project-
specific basis. Water quality management planning for waste treatment projects
is conducted to determine the most cost-effective method of attaining water quality
or technology based standards. Under the Water Resources Council's Principles
and Standards, Federal water resource development projects must be justified on
the basis of cost benefit analysis. Water quality management planning is pri-
marily conducted by States, subject to EPA review and approval, while planning
for water resource projects is conducted primarily by Federal agencies.
Level B studies under the Water Resources Planning Act are exceptions to
these generalizations in some respects. They are conducted on a basin-wide basis,
with substantial State and local involvement. Section 209 of the Clean Water
Act requires the preparation of Level B plans for all basins by 1980 (See Chapter
IV, for extensive discussion of Level B planning). Priority is to be given to
basins which overlap with designated 208 planning areas. 35% of the nation has
been subject to this planning process. Funds have not been appropriated under
Section 209.
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Dredged or FillPermit Program
A holder of water rights under State law may find it necessary to construct
impoundments and diversions works in order to make use of water to which the user
is entitled. The construction may, in some instances, be prevented or regulated
by the permitting requirements of Section 404 of the Clean Water Act. Section 404
requires permits for discharges for dredged and fill material, with some limited
exceptions. This amounts to a requirement for a permit where a hydrologic modi-
fication is involved, and in many situations where a structure is put into a
stream to divert water.
The Corps of Engineers is authorized in several places to require the main-
tenance of minimum stream flows as conditions of these permits.
EPA's guidelines for evaluation of proposed discharges of dredged and fill
material (CWA 404 (b)(l)) include the following objectives:
Avoid discharge of activities that significantly disrupt the
chemical, physical, and biological integrity of the ecosystem
of which . . . the normal fluctuations of water level are in-
tegral components. !40 CFR 230.5(a)(l)l
The regulations governing issuance of dredged or fill permits by the Corps
of Engineers provide for conditioning of permits to comply with the Fish and
Wildlife Coordination Act (33 CFR 320.4(c)). These regulations also provide
that any permit issued may be conditioned to implement water quality protection
measures (33 CFR 320.4(d)).
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These regulations will soon be revised to implement the 1977 amendments to
the Clean Water Act.
Consumptive Wastewater Treatment and Regionalization
Effluent guidelines for waste treatment for some industrial sub-categories
require zero discharge of pollutants. Land disposal may be the most practicable
method for complying with this requirement and zero discharge must also be cons
sidered in planning for publicly owned treatment works. In some cases these
requirements may interfere with the water rights of downstream users, since
land disposal might deplete flows below levels necessary to protect down-
stream uses.
Regionalization involves replacing several small treatment plants that dis-
charge treated wastes to upstream points or smaller tributaries with a large
centralized plant discharging to a downstream point on a bay or stream. It is
usually undertaken for reasons of cost effectiveness. It may result in severe
reduction of instream flow below the original point of discharge. These problems
differ from the others discussed in this chapter, because Clean Water Act
programs may be in conflict with instream flow maintenance, rather than dependent
on instream flow maintenance. Problems with consumptive waste treatment are dis-
cussed in more detail in Chapter VII.
CONCLUSIONS
Water allocation and water quality programs have been involved in conflicts
over maintenance of instream flow levels, in the face of demands for offstream
uses of water for agricultural, industrial, municipal and other uses.
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o State water law and water rights may be in conflict with pollution
control requirements based on water quality standards. Limitations
on discharges of pollutants are frequently determined on the basis
of minimum stream flows included in water quality standards.
When flow levels are reduced below these minimums, treatment
requirements are no longer adequate to protect the standards.
In many circumstances, the only alternatives for maintaining or
achieving the water quality standards may be increased levels of
treatment for existing and future dischargers, flow augmentation,
or limitations on withdrawals. In some circumstances, restrictions
on discharges may result in conflicts with State allocation systems.
o Depleted flows may reduce water quality to such an extent that
both offstream uses, like agriculture and municipal water supply,
and instream uses, like fishing and recreation, may be impaired.
o Conflicts over maintenance of instream flows may result from
applications for permits for discharges of dredged or fill material
under Section 404 of the Clean Water Act. Minimum stream flows
may be based on a number of authorities in addition to water
quality standards.
o Four options are available to address water quality problems re-
lating to reduced stream flows: 1) increased treatment levels; 2)
limiting diversions and consumptive uses; 3) augmenting stream flows
and 4) relaxing water quality standards.
o Instream uses are often not recognized in prior appropriation
States as beneficial uses upon which appropriations can be made.
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o Some prior appropriation States require a physical diversion
to perfect an appropriation; instream uses do not entail physical
diversion.
o Federal water development projects may impact the amount of
water available through scheduling of releases.
o Often existing projects can not be depended on to provide instream
flow levels for water quality purposes because it is outside the
scope of their authorization.
o Consumptive waste treatment requirements and regionalization of
sewer systems to comply with the Clean Water Act may lead to
reduction in instream flow levels.
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CHAPTER VI
IRRIGATED AGRICULTURE
Control of nonpolnt source pollution from irrigated agriculture is a
politically sensitive issue, especially because irrigated agriculture is
central to the economy of many States, and especially those in the west where
water is scarce. Thus, mandatory land management practices to reduce nonpoint
source pollution generally have not been required by the States pursuant to the
CWA and are unlikely to be required on a large scale basis in the foreseeable
future. However, the absence of regulatory programs means that voluntary programs
must be developed to meet the goals of the CWA in Section 101, the nonpoint source
control requirements in Section 208, and to attain and maintain applicable water
quality standards. The relationship between State and Federal allocation sys-
tems as they address irrigated agriculture and CWA requirements is less one of
head-on conflict than of a failure of each system to accommodate the needs of the
other.
Implementation of CWA requirements as they relate to irrigated agriculture
may be costly and would require some irrigators to change the way they have been
managing their land. The results in terms of cleaner water for other users on
the stream, including other irrigators, and increased water made available for
others through more efficient irrigation practices provide important environ-
mental and economic reasons to make the changes. However, the willingness of
irrigators to make changes will depend on the extent to which the Federal govern-
ment implements policies regarding both water quality and quantity management
which are supportive of needed change. The State allocation systems also will
have to be flexible enough to accommodate to such change.
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Water quality problems associated with irrigated agriculture include both
those directly and immediately caused by the practice of irrigated agriculture
(i.e., the discharge and concentration of pollutants caused by irrigation itself)
and those indirectly caused by irrigated agriculture, such as overdraft of
aquifers resulting in saline intrusion and overdraft of surface waters creat-
ing problems with the adequate treatment of wastes from other types of sources.
Inasmuch as the indirect effects are discussed in other sections of this report,
this chapter considers only direct effects with specific references to salinity,
fertilizers, and sediments. This chapter will describe the water quality and
quantity problems associated with irrigated agriculture, describe the Clean Water
Act requirements, basic tenets of State allocation systems and the role of the
Federal government.
GENERAL PROBLEM DESCRIPTION
Irrigation can have a significant effect in modifying the natural environ-
ment. In many cases, the use of water for irrigation purposes may cause degra-
dation of ground and surface water quality by increasing pollutant content,
depleting streamflow, and/or over-drafting ground water basins. In 1975, accord-
ing to the Water Resources Council Second National Water Assessment, water with-
drawals for irrigated agriculture comprised 158.7 of the 398.2 billion gallons
of water per day withdrawn from surface and ground sources in the United States.
Although irrigation accounts for only 40 percent of this total quantity withdrawn,
it consumes over 83 percent of the amount of fresh water consumed in the United
States. "Consumed" water is no longer available because it has been evaporated,
transpired, incorporated into crops or products, consumed by animals or people,
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and otherwise removed from the immediate surface-ground water system. In the 17
western States, irrigated agriculture is the major diverter (74%) of water from
streams as well as the principal consumer (91%) of both ground and surface water
supplies.
Irrigation in the humid areas of the United States is a relatively recent
development. These areas include 31 eastern States, Hawaii, Alaska, and the
Caribbean area. As approximately 78 percent of the 8.5 million acres of land
under irrigation in humid areas is in the coastal regions of the States and the
lower Mississippi Valley, irrigation contributes to the intrusion of saline waters
which has degraded the quality of surface and ground water bodies in several areas.
Return flows from irrigation also have caused significant fertilizer, pesticide,
and sediment loadings in various receiving waters. The potential for pollution
problems will increase as irrigation increases in humid areas.
POLLUTION FROM IRRIGATED AGRICULTURE
There are three general types of pollutants associated with irrigated agri-
culture which Sections 208 and 303(e) seek to address: salinity or total dis-
solved solids, fertilizers, and sediments.
Salinity or Total Dissolved Solids
The term "salinity" is commonly used to refer to the presence in water of
a large variety of dissolved materials, or "salts" (typically sulfate, chloride,
or bicarbonate of calcium, magnesium, or sodium).
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Salinity is the result of two basic processes: salt-loading and salt-
concentrating. Salt-loading is the addition of mineral salts from various
natural and man-made sources which increases the total salt burden of the river.
Salt-concentrating is caused by consumptive uses, evaporation, channel leakage,
and other losses of water which concentrate the salt in a smaller volume of the
river.
The degradation of water quality by increasing salinity has significant
impacts on other usesprincipally on municipal, industrial and subsequent agri-
cultural use. When such uses are designated in Water Quality Standards they
are protected under Section 303(c)(2) of the CWA.
From a public water supply perspective, the concern relates to the palat-
ability of drinking water and potential health impacts of excessively saline
drinking water on people on low sodium diets and those with heart disease. In
addition, the corrosive effect of salinity on piping and appliances can be
extremely costly. Excessive salinity may cause municipalities to incur high
costs by importing less saline water for public use.
Certain industries, such as Pharmaceuticals, food processing, textile
manufacturing, and laundering are particularly sensitive to specific dissolved
elements in water.
Agriculture bears a major economic impact because of increased salinity
which may decrease crop production because certain crops are affected by
salinity or because it may damage certain soils. For example, clay soils
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affected by salts with a high sodium ion content may form "black alkali",
which is impermeable and a poor crop producer.
Although, the environmental effects of excessive salinity are less well
identified than the impacts on subsequent beneficial uses just described, it
is known that the spawning of certain fish species may be impaired by salinities
in the range of 5000 mg/1 or less.
Agricultural Fertilizers
Agricultural fertilizers contain large quantities of nitrogenous and phos-
phorous compounds which may enter the surface or ground water through percolation,
runoff or return flows. These compounds are not biodegradable and go through
various biochemical changes which leave them available for use within the
stream's ecological system. When introduced into a stream in excessive quan-
tities, these nutrients can produce eutrophication and certain harmful health
effects, especially those caused by nitrates in drinking water.
Although application ratios for agricultural fertilizers are decreasing,
they are still often higher than desirable. There are several reasons for
high application rates: (1) the unpredictability of the occurrence of heavy
rainfall, (2) a lack of certainty as to the amount which must practically be
applied, and (3) the necessity to maintain an adequate residual supply in the
fields, after leaching to the ground water and runoff losses to surface streams.
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Sediments
Sediment is the largest single nonpoint source pollutant. The
practice of irrigated agriculture, like all other crop agriculture, may
result in erosion of sediments in varying degrees from the fields a
large portion of which eventually reaches streams to become excess
loads. Natural sediment loads are essential to maintaining a stream's
regimen. Unfortunately, excess sediment contributions from all sources
not only create turbidity problems in streams but, in more quiescent
reaches, may settle in great quantity, occluding the bottom to the point
where some forms of bottom life cannot exist.
This soil erosion and consequent creation of excess sediment loads may
also lead to chemical pollution of the streams. A significant portion of
agricultural chemicals actually reaches the streams adsorbed to and transported
by soil particles.
CLEAN WATER ACT REQUIREMENTS RELATED TO IRRIGATED AGRICULTURE
Section 208 provides the basis for control of nonpoint sources of pollution.
Because of the diffuse nature of nonpoint sources and the cost of applying
treatment measures, the accepted approach for controlling them is through the
application of preventative practices known as Best Management Practices (BMPs).
In the case of irrigated agriculture, which was defined as a nonpoint source in
the 1977 Clean Water Act, an EPA recommended BMP calls for increased irrigation
efficiency to reduce the amount of water applied to land and thus reduce the
amount of runoff and return flow which carry pollutants to the stream. Appendix
D contains a more detailed discussion of the suggested increased irrigation
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efficiency BMP (which concerns only the amount of water required for plant
growth vs. the amount supplied, and does not include economic considerations).
In Section 208(b)(2)(F) the Act requires that water quality management plans
include "a process to (i) identify, if appropriate, agriculturally. . related
nonpoint sources of pollution, including return flows from irrigated agriculture
and their cumulative effect. . . and set forth procedures and methods for their
control to the extent feasible." Prior to 1977, irrigation return flows had
been judicially interpreted as point sources and thus were subject to the NPDES
permit system.
Implementation of the irrigated agriculture BMP may be costly, although
some funding will be available under the Rural Clean Water Program. However,
treatment alternatives such as de-salting plants may well be more costly in the
long run due to capital, operating, and energy costs. One of the major issues
being raised concerns who should bear the cost - the irrigators or all Federal tax-
payers. This question has been asked in regard to the recent request to Congress
for additional funds ($83 million) to build a large de-salting plant in Arizona
authorized by Congress five years ago (for $62 million) to meet water quality
commitments made in a treaty with Mexico for the Colorado River. Total project
costs are projected to be $1 billion. The director of the Agriculture Department's
salinity laboratory believes that irrigation management and social solutions
will solve the problem. However, the manager of the Wellton-Mohawk Irrigation
District feels it is the Federal government's obligation, and not that of irri-
gators at the bottom of the pool, to meet the Treaty obligations, especially
since farmers along 1400 miles of the Colorado are contributing to the severe
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salinity problem in the Colorado River near Mexico. The salinity laboratory
director indicated that recent improvements in irrigation technology, including
use of laser beams to level fields, have resulted in the same amount of irriga-
tion water doing three times the work. However, political problems often militate
for the treatment approach.
Section 303 of the Clean Water Act requires States to adopt water quality
standards. The standards identify the uses of navigable waters and establish
water quality criteria based on these uses. Specifically, Section 303(c)(2)
requires that standards take into consideration the water's use and value for
"public water supplies, propagation of fish and wildfish, recreational purposes,
and agricultural, and other purposes. . ." Generally, the States have established
narrative criteria for nonpoint source pollutants but have developed few
numerical criteria for the nonpoint source related pollutants which will be
discussed on the following pages (salinity, nitrates, phosphorus, and sediment).
However, the directive in 303(c)(2) that the standards shall protect existing
agricultural and other uses, along with the directives in Section 208, provide
a firm basis for control of pollution from irrigated agriculture.
IRRIGATED AGRICULTURE AND STATE WATER QUALITY ALLOCATION LAW
The quantity, and consequently, the quality of water in irrigation return
flows is tied closely to the water rights system, especially in the western
States where irrigation is most common. All of the western States allocate water
under the doctrine of prior appropriation, although a few, notably California, have
a mixed riparian-appropriative system. The eastern States operate under either
a pure riparian system or a statutorily modified permit system. See Chapter IV
for a more detailed discussion of State allocation systems.
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Riparian States
Under the riparian system it is generally required that water be put to
a reasonable use, and be returned to the stream with quality adequate to meet
the requirements of downstream uses. This requirement in theory limits waste
of water and water pollution when they interfere with the rights of another
riparian user. Riparian water rights are not lost through non-use. Thus, a
user is not penalized with partial loss of his water right if he adopts more
efficient water use practices. As is the case with the requirements for instream
flow levels, the riparian doctrine is in theory supportive of efficient irrigation
practices which will lead to improved water quality in irrigation return flows.
However, because the riparian States generally lack an administrative structure
for conflict resolution, the reasonable use concept is enforced only through costly
and time-consuming private litigation. Riparian States which have instituted
permit systems have, to varying degrees, remedied some of the potential problems
in traditional riparian jurisdictions through such concepts as time-limited per-
mits, conditions in permits, and reporting requirements. However, these statutory
permit systems do little to address the conflict resolution problem.
Prior Appropriation System
The right to water under prior appropriation systems is a right of use
rather than a right of ownership of the body of the water itself. Prior to
diversion the water is still a public resource, and, if the right holder cannot
put it to beneficial use, he must allow it to flow past his point of diversion
to other appropriators. When he diverts the water which has been appropriated
1ZM
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to him for a beneficial use, the water is his personal property until it
returns to the stream or escapes his control. Following is a discussion of
several elements of appropriative legal systems relating to irrigated agricul-
ture which may impact water quality requirements under the Clean Water Act.
These include: quantity of water appropriated; loss of water rights; restrictions
on transfers; conserved, salvaged, and developed waters; rights and duties of
return flows; and rights to a given quality of water.
Quantity of Water Appropriated
Beneficial use is the basis, limit, and measure of an appropriative water
right. This means that water must be used for a beneficial purpose and the
use of the water itself must be beneficial and carried out in a beneficial manner.
The criteria for determining when a use is wasteful differ in the various States.
In addition to the general definition of beneficial use, appropriative
States have employed three approaches to determining the specific amount of
water which can be used beneficially. One approach has been to establish
statutory limitations on the quantity of water that may be used per acre of
land devoted to agriculture under irrigation (e.g., Wyoming). The statutory
standards reflect the irrigation practices of the period of their enactment and
do not reflect quantities of water needed if more efficient irrigation prac-
tices were to be used.
The "duty of water" defines a reasonable quantity for beneficial uses
the extent to which and the manner in which the water should be used by the
appropriator. The Colorado court in Farmers Highline Canal and Reservoir Co.
v. Golden. 129 Colo. 575, 270 P. 2d 629, (1954), said the statutory duty of
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water is "that measure of water, which by careful management and use, without
wastage, is reasonably required to be applied to any given tract of land for
such a period of time as may be adequate to produce therefrom a maximum amount
of such crops as ordinarily are grown thereon." The majority of States incor-
porate this concept into their determination of the amount to be granted to a
water right applicant. Several States have quantified the amount, although
little uniformity exists in the numbers used.
A second approach is exemplified by California, which applies the concept
of "common custom" as one method for determining when a use is wasteful. Under
the concept of "common custom" an appropriator need not take extraordinary
precautions to prevent waste if a use is reasonable according to the customs of
the community and so long as the custom does not involve "unnecessary waste"
of water. In other words, if the local custom of irrigators in an area is to
follow irrigation practices of eighty years ago, the practice is not wasteful
even if the practice requires twice as much water as would be needed if more
efficient practices were followed. "Unnecessary waste" would be practices
which would have been considered wasteful eighty years ago, i.e., grossly
wasteful techniques. Thus, there is a wide divergence between the theory of
requiring beneficial use and the practice of tolerating relatively inefficient
irrigation practices.
A third approach is to provide criteria in directives to administrators.
This approach has the advantage of not requiring statutory revision as the
efficiency of irrigation technology improves. In Nevada the State Engineer is
to consider the duties of water established by court decrees or by experimenta-
tion in the area where water is to be used. He is also instructed to consider
the growing season, type of culture, and reasonable transporation losses.
-\lf-l)
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New Mexico law instructs the State Engineer not to allow the diversion of
more water for irrigation than can be used consistently with good agricultural
practices to produce the most effective use of water. In Washington the law
provides that an appropriator will be provided that quantity of water reasonably
necessary to irrigate his land, but his irrigation is to be accomplished by the
most economical method of artificial irrigation according to the methods
employed in the vicinity where the land is situated. The court determines the
most economical method.
Loss of Water Rights
As the Montana Supreme Court said in 1924 in the case of Allen v. Patrick,
222 Pac. 451, "In Montana, as elsewhere, when the early settlers made their
original appropriations they had little knowledge of the quantity of water
necessary to irrigate their lands to good advantage. Ample quantities of water
being available in the streams the settlers claimed extravagant amounts." Of
course, as settlement proceeded and knowledge advanced, many landowners realized
that the use of excessive quantities of water was detrimental rather than bene-
ficial to the land. However, to some degree the attitude of getting and using
as much water as one can has persisted, and to the extent that it persists, it
can act as a deterrent to implementation of more water efficient irrigation
practices.
Enforcement of the concept of "waste" by the States has been limited, reducing
the incentive for efficient water use in irrigated agriculture. An additional
disincentive to more efficient water use is the concept of "use it or lose it,"
1ZJ-I2,
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under which water made available under a water right will be lost to the right-
holder either through abandonment or forfeiture if it is not used. Water which
is conserved or saved through more efficient practices often is not made avail-
able to the conserver but is left in the stream to satisfy junior appropriations.
Since the conserver, under the allocation law in some States, may not be able to
apply the "saved" water to other lands or sell it, there is little economic
incentive to conserve water through more efficient but costly irrigation
practices.
Restrictions on Transfers
In all western States when a water right is granted for irrigation use,
that right attaches to or is appurtenant to the land(s) described in the permit.
This means the water cannot be used elsewhere without approval of the State
permitting agency (or Water Court in Colorado). This stems from attempts by
the States at the turn of the century to prevent some of the fraudulent land and
water sale practices that had gone on under earlier Federal settlement schemes
in the West. However, many variations exist as to the restrictions on transfer
of water rights. In most States water rights' transfers only require State agency
approval when proper measures and adjustments are made to prevent impairment of
other users' rights. In a minority of other States the appurtenancy rule is
more restrictive. The transfer can be approved for uses other than irrigation
only if it becomes impracticable to use the water economically or beneficially
on the original lands. This is a virtual prohibition on transfers. States
with strict provisions on transfer are Oklahoma, Oregon, Nebraska, and South
Dakota.
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The restriction on transfers of water for use on other land or by other
users, coupled with the loss of water rights if water is saved by conservation,
creates a powerful disincentive to more efficient water use.
Typical is the decision in Salt River Valley Water Users Association v.
Kovacovich, 411 P.2d 201 (Ariz., 1966). In that case, the Court had to decide
whether a landowner having a valid water right may, through water saving
practices, apply the water thus saved to immediately adjacent lands in his
ownership. The Court held against the landowner in saying that such saved or
salvaged waters inure to the benefit of other water users.
Conserved, Salvaged, and Developed Waters
The Kovacovich case highlights the legal distinctions between conserved
water, salvaged water, and developed water. Salvaged water is water that
would have otherwise been lost to the water supply system and not be available
for use by others if it had not been salvaged by artificial improvements.
Developed water is new water which prior to its development was not a part of the
water supply, such as water from another watershed. The person who salvages or
develops the water has the right to use that water. Unfortunately, the courts
have not carefully distinguished between water conservation practices and water
salvage practices, which can serve to deter implementation of more efficient irri-
gation practices.
Rights and Duties of Return Flows
Relevant to this discussion are the rights and duties of return flows.
Since water rights are granted on return flows, the courts have generally held
that junior appropriators can rely on these return flows and have protected
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their rights in this source. Also, as a general rule irrigation districts can
recapture flows before they leave their boundaries and reuse these waters
(Ide v. United States, 263 U.S. 297, 1924). This rule normally does not extend
to individuals, as return flows are considered by the Court to be nonconsumptive
uses of water that returns to the stream from the proper and beneficial applica-
tion of water. This rule allows for individual reuse of waste water on the user's
property. Some jurisdictions have stated that a downstream user can appropriate
waste water but cannot compel the person committing the waste to continue to
discharge, nor prevent him from adopting improved practices that eliminate the
waste.
Rights to a Given Quality of Water
Recently the Colorado Supreme Court decided a case which exemplifies one
type of conflict which can arise between nonpoint source pollution control require-
ments and the water allocation system. In United States v. Bessemer Irrigation
Ditch Co., the United States Court of Claims was faced with deciding whether an
appropriator has a vested right to water of a given quality, including the impuri-
ties contained therein. The issue arose because the Bureau of Reclamation con-
structed a dam project on the Arkansas River which destroyed a portion of an
irrigation ditch belonging to Bessemer. As compensation the Bureau proposed to
deliver water directly from the reservoir to the irrigation company to satisfy
its water right. The company objected on the ground that the water it histori-
cally diverted had a high silt content which helped seal the ditch and made the
water easier to spread on the land. The effect of having cleaner water supplied
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was that the irrigation company could only irrigate half the land it had his-
torically irrigated because of increased seepage losses and reduced irrigative
capacity. The U.S. Court Claims held for the irrigation company on the basis
that an appropriator has a right to rely on a certain quality of water. In
August 1978, in response to a question certified to it by the U.S. Court of Claims
(under the title A.B. Cattle Co. v United States^the U.S. Court of Claim's decision
was upheld on the basis that the company's rights were impaired because of the
reduction in acreage which it could irrigated. However, on December 13, 1978 the
Colorado Supreme Court issued its decision on rehearing and reversed itself,
holding that water users are not entitled to silty water. However, the Court
refused to render an opinion as to whether the appropriator1s right to receive
water containing silt is abrogated by State or Federal water quality statutes.
Irrigators using water from the Bureau of Reclamation dam at Guernsey, Wyoming
are raising similar questions regarding the right to receive silty waters and it
can be anticipated that the question will arise in other areas as nonpoint source
control programs are implemented.
Federal Water Resource Programs
While Federal agencies do not directly allocate quantities of water to
water rights holders, they impact the amount, timing, and location of
water available for allocation for irrigated agriculture through Federal water
projects. These agencies may be said to indirectly allocate water by deciding
the total amount or percentage available for a given project purpose (e.g.,
irrigation, power) when planning and seeking Congressional authorization of
the project. Further, the location of a project on a stream will affect the
amount of water available for particular uses, as will the timing of releases.
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The Bureau of Reclamation and the Soil Conservation Service are the Federal
agencies primarily involved in water development projects for irrigation.
The Bureau's activities have a greater impact, since the SCS is limited to the
development of small watersheds.
As mentioned in the chapter on Instream Flow Maintenance (Chapter V) and
in the discussion of Federal/State relationships in Chapter IV, the State is
responsible for allocating water developed by Federal projects and controls the
extent to which that water is left in the stream to reduce concentrations of
pollutants and to insure minimum flows for fish. The Federal government must
obtain both flow rights and storage rights from the States. Such rights, espec-
ially in newer projects, are usually junior water rights and therefore cannot
be used to maintain flow levels for environmental purposes.
Federal and State water resource programs have provided substantial benefits
to the Nation. When they were initiated, the emphasis of the programs was on
resource development. To this end, the water marketing policies of the Federal
water development agencies have provided substantial subsidies to users. Federal
water projects provide about 20% of the water used for western irrigation. The
project costs allocated to irrigation water supply are required by law to be
scaled to the estimated ability to pay of the prospective users. A major addi-
tional subsidy arise? through the fact that the irrigation costs are repaid
interest-free over a period of up to 60 years, equivalent to an 80 percent
subsidy under current conditions. On multi-purpose projects, water used to
generate power may also be used to irrigate; however, if power generation is the
primary use, the power account will be charged rather than the irrigation acount.
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While it is possible and in fact encouraged by the President's water policy to
negotiate water use contracts which better reflect the value of water and provide
flexibility for future price changes for new projects, there is less flexibility
in renegotiating old, long term contracts. On existing projects, the desired
effect of increasing irrigation efficiency can be brought about in other ways.
In particular, by making the rights to project water supplies more readily trans-
ferable, the real value of water would be brought home to irrigators. The
press of events may encourage change in this direction. During the California
drought of 1975, for example, the Bureau of Reclamation made a start toward act-
ing as a middleman in the temporary transfer of water supplies from users with
surpluses to those with urgent needs. Complementary State actions, such as a bill
before the Idaho legislature (House Bill No. 165), providing for a State water
supply bank, and any other steps toward facilitating the transferability of
project supplies encourage irrigators to evaluate their practices in terms of
the value of water and, in particular, encourage the adoption of water-conserving
techniques.
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Conclusions
CWA requirements related to or affecting irrigated agriculture require
control of nonpoint source pollutants through BMP's (Section 208).
These BMP's should protect various uses, including agriculture, identi-
fied in the Water Quality Standards (Section 303(c)(2) and (e)). The
suggested BMP generally involves more efficient application of irriga-
tion water, resulting in fewer pollutants reaching the stream or ground
water through leaching, run-off, and return flows.
Implementation of CWA requirements for nonpoint sources may result in
economic hardship and loss of valuable water rights.
Large scale implementation of increased efficiency BMP's may be costly
and is unlikely to occur unless the State allocation system and associ-
ated Federal programs provide incentives (or fail to provide disincen-
tives) to their implementation.
Federal policy, as expressed through the Federal subsidy of the cost of
water, has resulted in increased agricultural development in water-
short areas but has failed to provide an incentive to use irrigation
water more efficiently so as to protect water quality.
While riparian systems are theoretically supportive of nonpoint source
controls through implementation of increased efficiency BMP's because
water is not lost through non-use and waste is discouraged, the lack of
an administrative structure to resolve conflicts may make such a require-
ment difficult to enforce through the allocation system.
The prohibition against "waste" in prior appropriation States provides a
vehicle to ensure implementation of water quality requirements for more
efficient water use.
Lack of clear definition of the amount of water which can be beneficially
used, outdated criteria to determine the "duty of water" and cumbersome
procedures to revise these criteria restrict the prior appropriation
States' ability to enforce prohibitions against "waste" and enforce water
quality requirements entailing efficient use of water through the alloca-
tion system.
The potential loss of valuable water rights in prior appropriation States
through non-use may be a disincentive to implementation of more efficient
irrigation technologies.
Limitations on transferability of water rights to other uses may serve
as an economic disincentive to implementation of more water efficient
practices.
The lack of clear distinction, in some prior appropriation States, among
conserved, saved, and developed waters has led to confusion as to the
impacts of using more efficient irrigation practices.
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CHAPTER VII
CONSUMPTIVE WASTE TREATMENT TECHNOLOGIES
INTRODUCTION
Attainment of the 1983 interim national goal for the reduction of pollutants
into navigable waters will require stringent levels of waste treatment. In some
circumstances, the only feasible method of meeting nationally mandated best
practicable waste treatment technology level for publicly owned treatment works
(POTWs), best available treatment levels (BAT) or best conventional pollution
control technologies required for industrial dischargers is the disposal or
retention of part or all of the waste stream on land or in containment. More
stringent limitations necessary to meet water quality standards may also require
consumptive waste water treatment. Approximately 50 percent or 8918 of the
nation's POTWs now discharge into water quality limited segments (waters requiring
treatment more stringent than secondary (municipalities) and Best Available
Technology (industry)).
Current technological solutions for POTW pollutant discharge reductions and
for treatment of industrial discharges include advanced secondary treatment (that
is, treatment resulting in effluents containing less than 30 mg/1 of biochemical
oxygen demand and suspended solids for POTW's); advanced waste water treatment;
deep well injection; disposal on land; and reuse or recycling.
When water is withdrawn from surface or underground sources and not returned
after use, i.e., lost through evaporation, transpiration, or other processes, such a
use is classified as consumptive. Consumptive waste treatment may diminish the
amount of water available for instream and offstream users who may be entitled
to this water under State allocation systems. As the data in Table 1 indicate,
although the Water Resources Council's projections indicate a decline in
HJ-I
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T>
Table I.
Total withdrawals and consumption, by functional use, for the 21 water resources regions
"1975." 1985.2000
[million gallons per day]
Functional
use
Fresh water:
Domestic:
Central (municipal)
Noncentral (rural) ___._.
Comrnercial
Manufacturing ._
Agriculture:
Irrigation . , , , . ,
Uv»5tock ., , L
Steam electric generation.
Minerals industry ---
Public lands and others1 _
Total fresh water
Saline vu^f" * Intal
Total withdrawals -~
Total withdrawals
"1975"
21.164
2,092
5,550
51,775
1KR.7A3
1,912
88.916
7.055
1.866
_ 339,500
59,737
398.237
1985
23,983
2.320
6,046
23,687
166,252
2.233
94,858
8,832
2.162
330,375
91,236
421,611
1 Includes water for fish hatcheries and miscellaneous uses.
2 Saline water is used mainly in manufacturing and steam electric
2000
27,918
2,400
6,732
19,669
153,846
2,551
79.492
11,328
2,461
306.397
118.815
425,212
Total consumption
-1975"
4,976
1,292
1,109
' 6,059
86,391
1.9T2
1.419
2,196
1.236
106.590
Source
generation. COUDCI
1985
5.665
1.4O8
1.216
8.9O3
92.820
2.233
4.062
2.777
1,461
120.545
2000
6.638
1.436
1,369
14.699
92.506
2.551
10.541
3.609
1,731
135,080
: U.S. Water Resources
1, Second National Water
Assessment, Summmary, 1978
'I
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total fresh water withdrawals between now and the year 2000, a significant increase
in consumptive use is projected for the same period, probably primarily due to
increases in users with some increased consumption by existing users.
However, there are currently few specific examples of conflicts between State
water allocation systems and municipal/industrial consumptive waste treatment
technologies required for water quality purposes. Yet in several circumstances,
there is potential for conflict. This Chapter examines areas where the potential
for conflict is greatest.
Clean Water Act Requirements
Many waste treatment techniques encouraged or required by the Clean Water
Act may involve consumption of all or a portion of the waste water, rather than
its discharge to the navigable waters.
- Section 201(g) requires that construction grant recipients study and evaluate
innovative and alternative wastewater treatment processes which provide for
reclaiming and reuse of water, otherwise eliminating the discharge of pollutants,
and utilizing recycling techniques, land application, new or improved methods
of waste treatment management for municipal and industrial waste, and the
confined disposal of pollutants.
- Effluent guidelines established for point sources under sections 301
and 304 of the Act may require elimination of the discharge of pollutants
for some categories of industries.
- Section 316(a) provides the authority to impose effluent limitations for
thermal discharge from a point source; and section 316(b) requires that the
location, design, construction, and capacity of cooling water intake structures
reflect the best technology available for minimizing adverse environmental
impacts.
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- Section 208 requires States and areawide agencies to develop best manage-
ment practices (BMPs) to control nonpoint sources of pollution. BMP's for
irrigated agriculture often involve the more efficient (i.e., reduced
volume) application of water.
- Section 101(a) of the Clean Water Act established the national goal that
the discharge of pollutants into navigable waters be eliminated by 1985.
Land application or other consumptive techniques are important alternatives
for addressing the discharge goal.
LAND APPLICATION SYSTEMS
For conventional municipal and industrial wastes (those creating oxygen
demands in receiving waters and composed primarily of organic suspended solids),
land application systems provide excellent treatment, as shown in Table 2.
The application of waste water is attractive for several reasons:
(1) The soil column and surficial materials often act as an excellent
filter for nutrients and some heavy metals.
(2) It presents a positive (and sometimes cheaper) alternative to advanced
waste treatment and surface water discharge.
(3) It can result in economic return on sale of crops.
(4) It can be incorporated as part of a water conservation and reuse
program where, from a given use, the treated effluent may replace the need for
an existing high quality withdrawal.
(5) Land application often will actually remove more pollution than a
permit requires. This additional removal reduces the burden on other discharges.
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TABLE 2
COMPARISON OF AVERAGE EFFLUENT QUALITY
FOR SECONDARY TREATMENT, ADVANCED
WASTEWATER TREATMENT AND LAND
TREATMENT
EFFLUENT QUALITY PARAMETER, mg/1
System
Secondary
Aerated Lagoon
Activated Sludge
AWT-1
AWT- 2
AWT- 3
AWT-4
Slow Rate Land
Rapid Rate Land
Overland Flow
Biological
Oxygen
Demand
(BOD)
30
35
20
12
15
5
5
1
5
5
Suspended
Solids
SS
30
40
25
15
15
5
5
1
1
5
NH3-N
--
10
20
1
--
20
--
0.5
--
0.5
N03-N
--
20
10
29
--
10
--
2.5
10
2.5
Total
N
--
30
30
30
3
30
3
3
10
3
P
--
8
3
8
8
0.5
0.5
0.1
2
5
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(6) Land application is only a new consumptive loss when it is applied to
land not presently being irrigated.
Wastewater is generally used for irrigation of non-food crops, e.g., pasture.
When wastewater is used to irrigate food crops, it is only used for those that do
not come in direct contact with irrigation water, such as tree crops.
Land treatment may provide the only effective means to provide or
protect desired water quality in some situations, and in numerous others
it may be the most cost-effective. For small communities with population
less than 10,000 or 20,000 and for many industrial plants, these processes
may be the only economically feasible means of meeting the goals and
requirements of the Clean Water Act.
There may be diseconomies of scale in land application; for larger munici-
palities it would generally require either longer conveyance facilities or the
use of higher cost land, as compared to smaller communities. In addition, the
cost of land application can vary from place to place because of differences in the
value of the land and of the water consumed. There also may be objection to taking
land for effluent application out of private ownership and placing it in public
ownership, thus taking it off local tax rolls (although this is often unnecessary).
Publicly Owned Treatment Works
Under section 201(g)(5) of the CWA, construction grant recipients are
required to analyze innovative and alternative treatment processes and techniques
for use in wastewater treatment works. Alternative practices are those that
have been proven through actual use; innovative practices have not been fully
proven. Innovative and alternative technologies include process redesign,
land application and total containment. The Act provides an incentive in the
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form of Federal grants for 85 percent of allowable construction costs for treatment
works using innovative and alternative technologies (rather than 75 percent for
conventional systems). In order to further encourage the use of these technologies
the cost-effective guidelines permit a 15 percent cost preference and treatment
works proposing to utilize them can be given higher priority for funding. The
intent of the provisions regarding innovative and alternative technologies is to
achieve greater reclamation and reuse. Innovative and alternative systems are
desirable because they are simpler, often use less energy, recycle nutrients into
the land, may be less expensive and have lower operating and maintenance costs
than conventional systems.
Each proposal for waste water treatment facilities must undergo a cost-effec-
tiveness analysis prior to funding. All costs are considered in the cost-effectiveness
analysis including cost of purchase of water rights, off-set water, land costs, trans-
portation costs and any damages which might be incurred. There is also a qualitative
analysis which considers socio-economic and legal impacts. In general, such technologies
will not meet the cost-effectiveness criteria if their implementation will violate
State water law or will result in major socio-economic dislocations. EPA funding
policy specifies that the costs of purchase of water rights, purchase of offset
water and payment of damages are not eligible costs for Federal funding.
At the current time the system for cost-effectiveness analysis provides
sufficient flexibility to address potential conflicts between implementation of
innovative and alternative technologies and State water allocation law. The
State/EPA Agreement is another vehicle available to address potential conflicts.
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Water-Consumptive Industrial Requirements
Zero discharge of pollutants is the effluent guideline required for a number
of industrial sub-categories, either under BPT (Best Practicable Technology,
the standard for 1977 compliance), BAT (Best Available Technology, the standard
for 1983 compliance) or BCT (Best Conventional Treatment, the 1983 standard
for designated pollutants). Since guidelines for the last two headings are still
in the process of development, the best data are for BPT, for which 118 out of
1138 industrial subcategories (10 percent) are required to achieve zero discharge
of pollutants.
The rationale for zero discharge as a water pollution control regulation is
cost-effectiveness in comparison with alternative discharge technologies and the
availability and use of the technology to implement zero discharge by a specific
industry. However, zero discharge does not necessarily result in greater consumptive
losses because, in some instances, industry can redesign processes to recover and
recycle pollutants or to reduce water usage.
EPA has not gone far beyond existing practice in its requirements for zero
discharge. Zero discharge makes sense where the water and residuals have some
value on land (as in food processing); where the pollutants are too hazardous to
discharge, but not dangerous in containment (as in uranium and vanadium milling);
where evaporation or seepage rates are high; and where the impact of water lost
through land application or containment is not great. The number of subcategories
requiring zero discharge is high in the following industries: inorganic chemicals;
nonferrous metal manufacturing; glass manufacturing; grain milling; and sugar
processing.
m-*
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The twenty-two zero discharge industries consumed at maximum 1.4 percent of
total water withdrawals in the U.S. (1,988 billion gallons a year (BGY) of
146,000 BGY in the U.S.). This percentage, however, can be much greater in
specific geographic areas and have significant impacts on water use by depleting
water sources and increasing in-stream pollutant levels.
The Colorado River Basin is a case in point. Water users in the Basin are
withdrawing surface waters at a per capita rate of 20,000 gallons per day (gpd),
a rate 50 times greater than in the New England and Mid-Atlantic Regions. Hence
any consumptive withdrawal, such as is represented by water subject to zero dis-
charge, has a greater impact on total availability of water than a diversionary
withdrawal which permits water to be returned to the River after use.
Problems raised by water-consumptive pollution control requirements for
industry have been most apparent in the case of the steam-electric generating
industry. The power industry uses 80 percent of the total water used for all
industrial cooling purposes. The problems in that industry fall into two categories-
those related to water-consumptive techniques for cooling, and those for salinity
control.
Thermal controls. Steam-electric plants generate large amounts of waste heat as
part of the thermodynamic cycle. The industrial cooling process involves cooling
the water by some technique and subsequently reusing the water or returning it to
the source (lake or stream). Generally, the techniques are of two types:
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(1) Once through or open-cycle cooling where water is diverted from the
source (stream or lake), run through the condensers, and then either
directly returned to the source or returned after cooling in a cooling
pond.
(2) Closed cyle cooling where the cooling water is not returned to the
source but is cooled (by either wet or dry cooling towers or by cooling
lakes or ponds) and then recirculated through the condensors.
The closed-cycle techniques often involve considerable evaporation and therefore
result in more consumptive use than once-through cooling.
Heated water discharged to surface waters can have an adverse effect on the
ecosystem. Under the Clean Water Act, heat is defined as a pollutant, and effluent
limitations were issued by the Agency in 1974 requiring in many cases the use of
cooling towers as an abatement technique.
However, a number of utilities and the State of Texas sued EPA, in 1976, on
the grounds that the benefits of the abatement requirements had not been demonstrated
and that they involved excessive cost and water consumption. The Fourth Circuit,
in Appalachian Power Company v. Train, 545 F.2d 1351 (1976), sustained the
challenges to the regulations on a variety of grounds, emphasizing the consumptive
use impacts of the 1974 thermal guidelines, particularly in the arid western States.
The court disagreed with EPA's restrictions on the use of cooling lakes and remanded
the guidelines to EPA for further consideration.
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The use of cooling lakes and ponds still remains an issue. In water short
areas, many plants have been built with lakes or ponds to store water over the year
and to use as part of the cooling processwith water being recycled between the
generating system and the reservoir. In such cases, water users have objected to
requirements for evaporative cooling towers as being wasteful, so long as the
cooling potential of the lakes is available. On the other hand, since many of
the impoundments are on navigable rivers, EPA has been concerned with the environ-
mental effects of the thermal loadings.
Currently, the issue is in a state of abeyance. The Agency is attempting
to develop a national policy which will take account of environmental effects as
well as deal with the matter of water scarcity, to meet the court's finding that
EPA had not weighed the costs and benefits of thermal controls. In the meantime,
in writing permits, EPA is proceeding on a case-by-case basis. For example, in
States where thermal water quality standards exist for lakes, EPA thermal criteria
are being used to develop effluent limitations for the plants.
Salinity control. In the Colorado River Basin, where salinity is a significant
pollutant, the States, working through the Salinity Forum, have adopted a "no-salt-
discharge" policy for industry. Under this policy, a plant, as a condition of
its NPDES permit, is not allowed to discharge saline waste water to receiving
waters, thus often forcing more consumptive treatment techniques which result
in less return flows which can lead to increased instream concentrations of
salinity.
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A Salinity Forum has been established for the consideration of this issue.
EPA and the Basin States have recently adopted guidelines on writing permits for
industry which require submission of data on the cost of salt removal under the
no-salt-discharge policy and which would require no salt discharge technique
whenever practicable.*
Other industrial cases. Beet-sugar processing is another industry in which no-
discharge requirements have become an issue. Most plants in the industry have
adopted zero-discharge for the heavily polluted process water, which comes from
beet washing and other operations. The main concern is with the Best Available
Technology (BAT) requirement that large plants should also adopt zero discharge
for the relatively clean condensing water. When the costs of land application are
high, industry might adapt to the requirement by installing systems for recycling
condensing water through the use of cooling towers and cooling lagoons. Therefore,
the total costs of zero-discharge may be high in terms of the capital costs of
the facilities in addition to the value of the water consumed.
State Water Allocation Systems
Following is a discussion of allocation law, at the State level, examining
the likelihood of conflicts and areas where there is compatibility.**
*Colorado River Basin Salinity Control Forum, "Policy for Implementation of
the Colorado River Salinity Standards through the NPDES Permit Program,"
February 28, 1977.
**See Appendix A for a discussion of a case which addresses Federal-State
quality/quantity relationships.
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Land Application Systems
Riparian States
The reasonable use rule is followed in most riparian States in determining
the acceptability of a particular water use. Land application systems can have
adverse effects on natural water courses by alteration of the flow of the water
body into which the wastes would have been discharged in the absence of the land
application system.
In general, riparian law has favorable implications for land application.
Land application would ordinarily be irrigation, which is a reasonable use. In
those riparian States which distinguish between consumptive and nonconsumptive
uses, the application of wastes would probably be considered nonconsumptive and
thus generally allowable, since it involves the diversion of wastes rather than
the stream's natural flow. For intermittent streams, where effluent may make up
the entire base flow, this distinction is less clear. Decisions regarding the
reasonableness of a particular land application will, of course, be made on a
case-by-case basis. Where a downstream landowner is affected by the loss of flow,
he may challenge the operator of the land application system. While under the
natural flow doctrine actual damages need not be proved, under the reasonable use
theory they must be. There might also be challenges regarding drainage of trace
pollutants.
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Prior Appropriation States
In order to perfect a right to use water for land application, such a use
must be considered beneficial. As a corollary, the use must not be wasteful. The
prior appropriation doctrine applies only to waters, and not to wastes added to
the water. In most prior appropriation States land application will be considered
irrigation, which is a beneficial use and which has preference over most other uses
except domestic use. However, the concept of priority will impose limitations on
the quantity of water which can be consumptively used without paying compensation
to other appropriators. A downstream appropriator might challenge a reduction of
return flow upon which his appropriation is based under State law. The results
will depend in part on the priority relationship of the parties and the preference
placed (by the State) on either of the two appropriations. If the land application
diversion is senior to the downstream appropriation, or if the land application
diversion has a higher preference, a challenge is unlikely. Special preferences for
municipalities are discussed below.
The viability of a land application system may also be affected by the drainage
of trace pollutants from such a system. Conflicts on these grounds are unlikely
since the impacts of trace pollutants is not likely to be substantial.
Total Containment Systems
Riparian States
In most riparian States, total containment systems are generally not a
viable alternative for metropolitan areas because of the large amount of land
required. There might be challenges to attempt to put total containment systems
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on non-riparian lands, since riparian rights generally must be exercised on riparian
lands. In rural areas and in metropolitan areas which try to use total containment
systems, the reasonable use test will generally apply. A currently reasonable con-
sumptive use could at a later date be judged unreasonable in light of other demands
on the water body. The considerations would generally be the same as in the discussion
on land application systems in riparian jurisdictions.
Prior Appropriation States
The key State water law issue regarding total containment systems in prior ap-
propriation States is whether the use is beneficial. The corollary issue is whether
such a use is wasteful. Generally, the concept of beneficial use is not clearly
defined, and it is also a changing concept.
The general water management goal in the arid prior appropriation States is
maximum utilization of the water. Thus, whether such a use is beneficial depends
not only on the relative benefits which can be produced but on the availability
of less consumptive means of accomplishing them.
The likelihood of challenge by junior appropriators will generally be affected
by whether the system is regarded to be a change of use or reuse. A change of use
might result in a lawsuit against the no-discharge user by junior appropriators.
A claim that it is reuse, or a more efficient use, is likely to be an effective
defense.
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Change of use can refer to change in point of diversion or place or manner
of use. The burden is on the person proposing the change to prove it will
not harm junior appropriators (upstream as well as downstream) who have vested
rights in the continuation of stream conditions as they existed at the time their
appropriations were made. Western courts have specifically denied senior appropriators
the right to change direct flow rights to storage rights where such change would
hurt junior appropriators. The change of use rules have not been subject to
exception, even for municipalities. A no discharge user might be challenged if
the land application causes the cessation of all return flow, if junior appropriators
have relied on the return flow for their appropriations.
A total containment system may also be regarded as a reuse or more efficient
use, which is permitted and encouraged by some State water laws. The concept
behind reuse is that the appropriator owns the water and is entitled to its
possession after diversion for as long as the water remains on his property or
under his control. Some courts have said the water is in public ownership but
that the State cedes control during periods of beneficial use by the appropriator.
Before the water leaves his control, the user can recapture it and reuse it as he
wishes. However, where an appropriator has allowed water to return to the stream,
it once again becomes the property of the State and available for subsequent use.
When the operator of a containment system has allowed the water to return for
a considerable period of time, a subsequent appropriator may challenge improvements
in the initial appropriator's system that reduces the amount of water available
downstream. Such challenges will not necessarily arise, since land disposal
may entail reuse of the water for irrigation.
"303 -|
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Special Rules for Municipalities
In some jurisidictions the rights of cities to dispose of waste water are
greater than rights of private entities. Municipalities often are not limited in
the amount of water they can divert to meet current needs; they can appropriate
sufficient water for probable future demands. Courts in Wyoming have held that
a city can dispose of surplus water up to the amount of its diversion even though
it returns no water to junior appropriators. Wyoming courts also have held that
a city can impound water for emergencies against the claim of junior appropriators
that it is not a beneficial use. However, other courts have held that the rights
of a city are no greater than the right of any other appropriator, and have limited
the right of a city to dispose of its surplus water (Colorado), and denied the city
a right to impound water in excess of its actual needs (Montana).
Where special rights for municipalities exist, they may extend so far as to
permit a city to consume its entire appropriation by evaporation when a private
entity would have no such right. This possibility was recognized by the Wyoming
Supreme Court in Wyoming Hereford Ranch v. Hammond Packing Co. 33 Wyoming 14, 236 P.
764 (1925), in which the court held that the City of Cheyenne could dispose of its
sewage effluent by sale and deposit the water directly in the ditch of the buyer
despite the claims of downstream appropriators. Colorado, in Pulaski Irrigation
Co. v. City of Trinidad, 70 Colorado 565, 203 P. 681 (1922), with facts similar to
the Wyoming Hereford case, held the City of Trinidad had no right to sell its purified
water in lieu of returning it to the stream. However, in dictum, the court recognized
that disposal by evaporation might be recognized as a rightful disposition of water
in the proper circumstances.
an-
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While the weight of authority appears to recognize special municipal rights
for which the reasonable use concept in riparian States and beneficial use concept
in prior appropriation States is construed more liberally, it is unclear whether
States other than Wyoming, and possibly Colorado, would extend these concepts to
allow municipalities the right not to return surplus water to the detriment of
junior appropriators.
Conclusions
0 Currently, few specific examples of conflicts have been identified between
water quality requirements for consumptive technologies and State allocation
systems. However there is potential for conflict in several areas.
0 If a proposed consumptive use replaces a current consumptive use it will
generally be more legally feasible than if proposing a new consumptive
use.
Publicly Owned TreatmentWorks
0 EPA encourages land application as an innovative and alternative waste
treatment technology.
0 Each proposal for funding must undergo a cost-effectiveness analysis.
All costs are considered in C-E analysis including: purchase of water
rights, off-set water, land costs, transportation costs, and any damages
which might be incurred. C-E analysis also requires a qualitative analysis
of socio-economic and legal impacts.
0 Current EPA policy: purchase of water rights, offset water, and payment
of damages are not eligible costs.
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0 Therefore C-E analysis serves to resolve conflicts before they occur.
0 Although riparian law has favorable implications for land application, the
priority concept in prior appropriation States will impose limitations
on the quantity of water which can be consumptively used without paying
compensation to other appropriators.
0 There is uncertainty regarding the ability of municipalities to consume
their appropriations through land disposal or to sell treated effluent.
Industrial Dischargers
0 Zero discharge of waste water is required as the effluent standard for
twenty-two industrial subcategories (sugar processing, inorganic chemicals. . .),
0 Although, currently, no significant quantity/quality conflicts have been
identified, steam-electric plants are one area where there may be potential
conflicts, where much water consumption is concentrated at one point.
0 There is some potential for conflict for new steam-electric facilities.
New Source Performance Standards apply.
0 In areas such as the Colorado River Basin, water rights are either consumptive
or diversionary. Zero discharge imposed on water users with only diversionary
rights at present will necessitate their acquisition of consumptive water
rights.
SIH1
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0 Water consumption is limited by inter-state agreements and international
treaties in the Colorado River Basin; salinity levels are also limited.
Zero discharge, by increasing water consumption, will exacerbate the water
resources situation.
0 Total containment systems often require large land areas. In riparian
States there may be challenges where these systems are located outside
riparian lands.
0 In many prior appropriation States, some consumptive technologies would
be considered wasteful and therefore not beneficial uses. If the no
discharge system is found to be a change of use (possibly a total evaporation
system with no reuse) rather than a reuse of the water, it could result
in a lawsuit against the no discharge user. Junior appropriators may
demand costly purchases of water rights or payment of damages if con-
sumptive waste treatment techniques are used, or they may deny the
change of use request.
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AMERICAN IRON AND STEEL INSTITUTE v. EPA,
8 ERC 1321 (U.S. COURT OF APPEALS, 3rd CIRCUIT)
November 7, 1975
In this case petitioners challenged EPA effluent limitations designed to
be applied on a national basis to the steel industry. In particular, CF&I Steel
Corporation claimed that installation of anti-pollution control devices in its
Colorado plant would cause significant net loss of water through evaporation. It
was seeking locally developed single source effluent limitations. The Court held
that EPA has the authority to promulgate national effluent limitations under
section 301 of the CWA. It further held that this does not preclude some flexibility
at the local level. The case was remanded for reconsideration of the single
number limitations and the promulgation of guidelines by EPA. In a footnote the
Court said, "(w)e also reject CF&I's contention that the regulations are invalid
because they conflict with State laws requiring water conservation. To the extent
that these Federal regulations are valid and are in conflict with State law, they
take precedence under the Supremacy Clause of the Constitution."
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CHAPTER VIII
GROUND WATER AND RELATED SURFACE FLOW PROBLEMS
INTRODUCTION
This chapter examines the extensive use of ground water in the
United States and illustrates where ground water is being overused,
resulting in water quality problems, and where water quality degradation
has effectively limited the usable supply of ground water. Specifically,
three areas of relationship among ground and surface water and quality
and quantity are identified. The Federal role in ground water management
and State ground water allocation laws are examined and conclusions are
set forth.
BACKGROUND
Until recently, the Federal government has not expressed any strong
interest in ground water policy or management, leaving that responsibility
almost entirely to State government. States have independently developed
ground water policies which reflect varying attitudes on resource con-
servation and use. Rights to use ground water generally have been
based on the attitude that a land owner should be able to use his or her
property (in this case the water underlying the land) with a minimum of
governmental restrictionexcept where the public health would' be
endangered. Environmental concerns are now leading to increased
private and public action to protect both the quality and quantity of
ground water and the related surface water flow.
As water quality efforts have progressed at all levels of government,
conflicts between established ground water allocation policies and water
quality objectives have become more apparent. Allocation policies for
ground water generally have developed without regard for their impacts
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on ground or surface water quality or quantity. In the same manner,
water quality objectives for ground water have been established without
careful consideration of current water use policies and the potentially
severe socio-economic impacts of changes in those policies which might
be required to accommodate expressed water quality goals.
At least one half of the population of the United States depends on
ground water as a source of drinking water. Dependence on ground
water as a supply source varies locally. For example, ground water
provides 62 percent of the supply in Arizona, 2 percent in Montana, and
is the sole source of supply on Long Island, New York and in San Antonio,
Texas. Nationwide, ground water supplies about 80 percent of all
municipal water systems, numerous industrial installations, approximately
10 million rural families, and much of the demand for irrigated agri-
culture. The widespread preference for ground water as a supply source
is usually due to its abundance and low cost, or to the lack of an
economically competitive surface water source. Overall for the U.S.,
ground water supplied 24 percent of freshwater withdrawals in 1975, up
from 18 percent in 1950. The use of ground water is increasing at 3 or
4 percent per yearfrom an estimated 34 billion gallons per day in 1950
to 82 billion gallons per day in 1975.*
* Murray and Reeves, Estimated Use of Hater in the U.S. in 1975.
Geological Survey Circular 765.
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The U.S. Geological Survey has estimated that 180 billion acre-feet
of ground water, roughly equivalent to 10 years of precipitation, is
actually available for use under present technology and costs of production.
This amount is not uniformly distributed throughout the Nation. Good
quality ground water often is not available or is in limited supply
in arid areas which have an inadequate surface water supply to attain
desired growth or to sustain use at existing levels in many places.
GROUND WATER QUALITY/QUANTITY CONFLICTS
In some parts of the United States, specific ground and surface water
quality problems are related to ground water allocation policies.
These problems can be divided into three categories (1) saline intrusion
caused by aquifer overdrafts, (2) polluting uses of ground water adversely
affecting ground waters, and (3) degradation caused by excessive with-
drawals from interdependent ground/surface water systems.
The first category, salt water intrusion into fresh water aquifers,
has become a problem of national significance. The saline water may
come from the sea or inland saline aquifers. Overdraft of a fresh water
aquifer can cause reversal or reduction of the hydraulic gradient
which keeps the saline water in place. Salt water can then move into
the remaining fresh water body. The disposal of salt water on or
under the ground surface also can cause saline contamination of aquifers.
Coastal areas with intrusion problems of varying magnitude include
Baltimore, Maryland; Savannah, Georgia; Mobile, Alabama; Takoma, Washington;
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and coastal areas of California. Examples of saline intrusion in inland
States include various locations in New Mexico and the Red River Valley
of North Dakota, where vertical intrusion of deeper saline waters into
the producing aquifer occurs as a result of heavy pumping. Similar
problems exist in northwest Minnesota, various locations in Michigan,
and the Mount Vernon-West Franklin area of Indiana. In a number
of cases, the increases in salinity of the aquifer have necessitated
the development of new sources for public water supply.
Many States, especially California, have dealt effectively with
saline intrusion through artificial recharge programs to raise the water
level and force out salt water, and through limits on ground water
withdrawals which result in saline intrusion.
The second major type of ground water degradation results from ex-
tensive agricultural, industrial, and urban use of ground water. For
example, extensive use of ground water for irrigation may result in
degradation of the aquifer by movement of applied agricultural nutrients,
pesticides, and salts from the soil directly downward into the source
aquifer. Possibly the most graphic examples of this type of pollution
are found in Arizona and Nebraska where irrigators use and reuse ground
water, which is degraded during each cycle of use.
The third type of conflict between water allocation systems and
water quality requirements arises when surface/ground hydrologic
relationships are inadequately recognized in the overall management
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system. The result can be degradation of either surface or ground
waters or both caused by excessive ground water withdrawals.
In many places, maintenance of stream flows essential to water
quality depends on ground water which feeds streams. Studies of Long
Island, for example, report that the uncontrolled overdraft of ground
water and the rerouting of potential recharge water into the ocean by the
installation of storm sewers have reduced not only instream flow but
also outflow to the estuaries, changing the fresh-salt balance and the
general ecosystem in those estuaries.
The reverse situation may also occur, where excessive withdrawals
of water from surface streams affect ground water quality and quantity.
Stream reaches often serve to recharge aquifers by percolation through
porous stream bottoms. When surface allocation systems allow salinization
or other degradation of streams, ground water may be degraded by the
recharge water.
The more general relationship is set forth in the following quote
from a letter written by Mr. C. H. McConnell, Deputy Secretary, Resources
Management of the Pennsylvania Department of Environmental Resources
and addressed to Mr. Gerald Meyer (USGS), Chairman of the Ground Water
Task Force for Implementation of the President's Water Policy.
"In Pennsylvania, our main groundwater shortcoming is the lack of
basic data. Pennsylvania groundwater is primarily shallow and under water
table conditions. This means that groundwater and surface water are inti-
mately associated and one cannot be used without affecting the other.
For example, surface water quality standards are based on the quality at
seven-day, ten-year low flow, and this low flow is 100 percent groundwater.
Polluted groundwater defeats the goals of surface water standards, and
groundwater overdrafts can severely restrict surface water flows. To
adequately protect ground and surface water quality, ground and surface
water uses, and instream flow needs, we must consider conjunctive use
planning."
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In order to fully understand the present status of problems related
to ground water quality/water allocation relationships, it is necessary
to examine the specific water quality requirements under the Clean Water
Act, related Federal legislation, programs and policies, and State alloca-
tion systems related to ground water.
ECONOMIC IMPACTS OF GROUND WATER DEPLETION
While ground water depletion through overdraft is in one sense
strictly a quantity problem, when the effect of excessive ground water
withdrawals on surface flow is understood, it becomes appropriate for
this report to address the economic impacts of such excessive withdrawals.
As stated in the June 4, 1979, report of Task Force 2b responding to its
assignment relating to Ground Water SupplyFederal/State Cooperation
(Federal Water Policy Initiatives), "(t)he resource (ground water) is
intimately interrelated with streamflow, the environment, and the land--
physically, economically, and politically." Unconstrained use of the
aquifer sometimes has led to localized supply and quality related
problems. State laws governing ground water often do not discourage over
draft of an aquifer. An individual operator will be guided primarily
by the cost of drilling a well and raising the water and not by the
effect that his pumpage may have on increasing the pumping lifts of other
operators, the "common pool" problem.
Development based on ground water resources has resulted in major
social and economic commitmentsthe expansion of irrigated agriculture
or urban and industrial developmentin such areas as the west Texas
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highplains, California, Arizona, Georgia, and New York. Often these
commitments were made with inadequate recognition of the limits of the
resource upon which they were dependent. In the absence of common manage-
ment of the pool, water in the aquifer may be overdrafted or "mined,"
eventually requiring the development of more expensive water supplies
or the abandonment of farming operations or other uses.
FEDERAL INVOLVEMENT
As previously indicated, clear Federal policy regarding ground water
has been slow to develop. In recent years, four major pieces of
environmental legislation, Section 208 of the Clean Water Act, the
Safe Drinking Water Act, the Resources Conservation and Recovery Act,
and the Surface Mining Act, have shown major concern with the quality
of ground water,
Numerous other Federal programs are related directly or indirectly
to ground water quality protection. In recognition of the effect of
the Federal programs upon the management of the total water resources,
the President issued a series of directives addressing ground water
and instream flow. One of the July 12, 1978, directives requires
Federal agencies to assess any ground water problems which would be
associated with a water resources project to be constructed and set
forth actions to avoid or minimize such effects, whether related to
quality or quantity. The directive further requires such agencies to
work closely with State and local governments to seek resolution of
such problems. There was no change in the Federal policy that the States
have the primary responsibility for the management of ground water,
including allocation, within their respective jurisdictions.
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The authority of the Federal agencies in the field of ground water
management varies greatly, from direct regulatory authority to non-regula-
tory authorities based primarily upon the National Environmental Policy
Act. These authorities fall into several broad classes:
o Direct regulatory authority
o Limited regulatory or quasi-regulatory authority
o Water resources management authority in connection with
management of Federal lands
o Service program authority
o Indirect program authority.
The direct regulatory authorities are found only in environmental
legislation, and the resultant programs are managed, for the most part by
the States. These programs and authorities include:
o Safe Drinking Water Act
Establishes minimum quality standards for public water
supplies for all ground water for human potable use.
Requires controlling underground injection of wastes.
Designation of aquifers as the sole sources of potable
supplies leading to protection from pollution through
Federal activities.
o Resource Conservation and Recovery Act
Requires protection of ground water quality from pollu-
tion caused by surface and subsurface disposal of
waste materials,
o Surface Mining Act
Requires protection of ground water quality from pollu-
tion caused by mining operations.
o Clean Water Act of 1977
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Section 104
Requires, among other things, the Administrator to
establish national programs for the prevention,
reduction, and elimination of pollution which shall
include a "water quality surveillance system for the
purpose of monitoring the quality of the navigable
waters and ground waters "
Section 106
Prohibits the Administrator from making grants for
pollution control programs to any State which does
not have a satisfactory program for monitoring "the
quality of navigable waters and, to the extent pract-
icable, ground waters including biologic monitoring."
Section 208
Requires State and areawide agencies to development
plans to protect ground or surface water quality
from both point and nonpoint sources. While all
sources are covered, specific direct reference is
made to:
(I) a process to (i) identify, if appropriate, salt
water intrusion into rivers, lakes and estuaries re-
sulting from reduction of fresh water flow from any
cause, including irrigation, obstruction, ground
water extraction, and diversion, and (ii) set forth
procedures and methods to control such intrusion to
the extent feasible where such procedures and methods
are otherwise a part of the waste treatment manage-
ment plan;
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(J) a process to control the disposition of all
residual waste generated in such area which could
affect water quality; and
(K) a process to control the disposal of pollutants
on land or in subsurface excavations within such
area to protect ground and surface water quality.
Section 402
Establishes the National Pollution Discharge Elimina-
tion System, which is a program for issuing permits
for point sources of water pollution of navigable
waters. One requirement for State approval by EPA
to issue permits is that the State must issue permits
which control disposal of pollutants into wells.
This has been interpreted to mean "deep" waste in-
jection wells, of which there are only about 350 in
the U.S. Further, EPA has said that permits will
only be given to cover these wells if there is an
associated surface water discharge of pollutants.
While many States are not placing these same restrict-
ions on the definition of wells, most States are
covering only a very small number of wells. One
reason for this narrow coverage is that the definition
of "pollutant" in section 502 does not mean water,
-10
-------
gas or other material which is injected into a well
to facilitate production of oil or gas, or water
derived in association with oil or gas production and
disposed of in a well if the well is approved by
authority of the State in which it is located.
The requirements of the above legislation are generally not coordinated
with the requirements of State ground water allocation programs, and in
many cases may actually conflict with State allocation programs, since
the latter generally were not designed to take cognizance of the need
for protection of water quality.
In addition, EPA has indirect ground water quality related authorities
in the Clean Water Act pursuant to the National Pollution Discharge
Elimination System Program (Permits) and in the administration of its
Municipal Construction Grants Program (controlling land disposal of wastes),
where certain requirements may conflict with State allocation policy in
specific situations. One such example is the requirement for water
conservation which may differ markedly from State attitudes and policy.
The limited regulatory or quasi-regulatory programs include the
hydroelectric licensing program of the Federal Energy Regulatory Commission
and the requirements of the National Environmental Policy Act. The
requirements under both authorities have not always been effective in pro-
tecting ground water quality in consideration of surface water projects.
The only Federal agencies with direct responsibilities for ground
water allocation are those that manage Federal lands, such as the Bureau
-------
of Land Management and the U.S. Forest Service. The land management
agencies claim the right to manage the ground water underlying public
lands by virtue of land ownership. Since aquifers often extend beyond
the Federal boundary, difficult situations arise concerning management
of the ground and surface water resources.
Federal service programs include those which provide technical and
financial assistance to State and local governments and private
individuals. Such programs are conducted by the U.S. Geological Survey,
the Bureau of Reclamation, the Office of Water Research Technology, the
Environmental Protection Agency, the Soil Conservation Service, the Farmers
Home Loan Program and others. Some of the programs may impact ground water
usage by encouraging or discouraging agricultural development in areas
dependent on ground water supplies.
While the primary programs to implement the mission of the traditional
developmental agencies, such as the Bureau of Reclamation and the Corps
of Engineers, are not directly involved in ground water development,
management decisions regarding surface flow may impact ground water
quality and quantity, because of the close hydrologic relationship
between ground and surface waters.
LEGAL ISSUES IN STATE ALLOCATION SYSTEMS
The law governing ground water in the United States generally follows
one of the five doctrines discussed below. However, the traditional
legal classifications of ground water often do not reflect a modern under-
standing of ground water hydrology. Court decisions based on these mis-
leading classifications add to the complexity of ground water management.
-------
ABSOLUTE OWNERSHIP (ENGLISH RULE)
The English or common law rule of absolute ownership is based upon
two principles: (1) a landowner owns everything from the center of the
earth to the heavens, and (2) because its movement is not easily dis-
cernable, ground water cannot be apportioned among overlying landowners.
Under the rule of absolute ownership, the right to use water is based
solely on land ownership. A landowner is unrestricted in his use of
ground water, except that he cannot act maliciously or negligently. A
landowner is not liable if his use of ground water interferes with the
ground water use of another. Under the rule of absolute ownership, a
landowner may waste ground water, use it on lands not overlying the
aquifer, or sell the water.
While the English rule is called the "rule of absolute ownership,"
a landowner has little actual protection of the ground water under his
land in the face of a neighboring landowner with a deeper well or more
powerful pump. The rule of absolute ownership is essentially the law
of capture, under which every landowner has the right to pump as much
ground water as he can without regard to the rights of others.
Texas, Louisiana, Arkansas, Missouri, Minnesota, Indiana, Ohio,
Pennsylvania, Vermont, Massachusetts, Connecticut, Maine, New Jersey,
Rhode Island, South Carolina, Georgia, Alabama, Mississippi, and in part
California follow the absolute ownership rule.
REASONABLE USE (AMERICAN RULE)
Under the American rule of reasonable use, the right to use ground
water is also based on land ownership. It differs from the absolute owner-
ship rule on two significant points: the amount of ground water that can
be used, and where it can be used.
-------
Under the reasonable use doctrine, every landowner is entitled to
the reasonable (i.e., not wasteful) use of ground water. The concept of
reasonableness is different from that of riparian law, in that it does
not involve comparison of the relative utility of competing uses.
Under the reasonable use rule, reasonableness is based on the re-
lationship between the ground water use and the use of the land where the
well is located. Uses on distant lands are unreasonable per se as they
bear no relationship to the land under which the water is located. This
restriction on ground water transfers significantly differs from the
absolute ownership rule.
A landowner's use of ground water must be interfered with before the
issue of reasonableness can be raised. This applies both to waste of
ground water and use on distant lands. The reasonable use rule is followed
in Arizona, Nebraska, Iowa, Illinois, Michigan, Kentucky, Tennessee,
Florida, North Carolina, Virginia, Delaware, West Virginia, Maryland,
New York, New Hampshire and Wisconsin.
RESTATEMENT OF TORTS RULE
Tentative Draft No. 17 of the Restatement (2d) of Torts is essentially
a modification of the American rule of reasonable use: the Restatement
rule suggests that disputes among ground water users be resolved on a
basis similar to resolution of surface water disputes among riparians.
The Restatement rule preserves the rights of landowners to use water for
any beneficial purpose, including the sale of water. Liability for
interfering with the ground water use of another is imposed only when
the interference causes unreasonable harm. A finding of liability
would not result in determining who can use the water, but rather whether
damages should be awarded, if pumps must be installed or lowered or a
new well drilled.
\Zttl-i4
-------
CORRELATIVE RIGHTS (CALIFORNIA RULE)
The correlative rights doctrine is basically a judicial extension
of the reasonable use rule to resolve ground water disputes among land-
owners. Fashioned by California courts in dealing with ground water
depletions, the doctrine of "correlative rights" has a rather specific
meaning under California law. Under the doctrine if there is sufficient
water supply, overlying landowners share the supply with ground water
appropriators. However, if the supply is not sufficient, appropriators
get nothing and the overlying landowners share the supply on the basis
of reasonable use.
PRIOR APPROPRIATION
In most western States, the doctrine of prior appropriation has been
applied to ground water. The right to use ground water is based on
obtaining a State permit, which may limit the amount of water withdrawn.
Conflicts among ground water users are usually resolved on the basis of
priority (first in time is first in right). In some appropriation States,
the right to appropriate ground water may be denied if it is determined
that the ground water basin is overappropriated, or that the rights of
senior ground water users would be impaired. States following the prior
appropriation doctrine include Washington, Oregon, Idaho, Nevada,
Montana, Wyoming, Utah, Colorado, New Mexico, North Dakota, South Dakota,
Kansas, Alaska, and in part, California.
THE EFFECTS OF EXISTING LEGAL DOCTRINES AND INSTITUTIONAL ARRANGEMENTS
The absolute ownership rule, reasonable use rule, and the Restatement
rule fail to address the issue of depletion of a ground water reservoir.
-------
Under the absolute ownership rule, a landowner may withdraw ground
water without regard to either the impact on neighboring landowners or the
depletion of the ground water reservoir. Under the reasonable use rule,
a landowner's right to withdraw ground water will be restricted only
if it is wasteful, is located on distant or non-overlying lands, or both.
Otherwise, a landowner may withdraw ground water without regard to ground
water depletions. The Restatement rule makes landowners liable for their
unreasonable interference with other ground water uses, but deliberately
leaves the issue of ground water reservoir depletions for legislative
resolution.
Another problem not addressed by the absolute ownership, reasonable
use, Restatement, or correlative rights doctrines is how to resolve
conflicts between ground and surface water users. This issue is important,
not only in determining and maintaining surface water supplies, but
also for maintaining stream flows for water quality, fish and wildlife
habitat, and other instream purposes. Where ground water levels are
declining, the ground water contribution to surface stream flow may be
reduced, eventually inducing aquifer recharge from stream flow. If
ground water levels continue to decrease, stream flow may be reduced
until, eventually, the surface flow would be completely depleted.
-------
In both eastern and western States, disputes among individual
ground and surface water users have been resolved by the courts. In the
eastern States the decisions show a slight tendency to favor the ground
water user. In the western States, the courts have almost always followed
prior appropriation, protecting the senior right of surface appropriators
from interference by subsequent ground and surface water users.
In western States which apply prior appropriation to both ground
and surface water, ground water appropriations may be denied where they
interfere with prior surface appropriations. Colorado has gone the
farthest of any State in integrating ground and surface water allocation
and administration. Colorado law has defined tributary ground water
as ground water that would reach a stream if not intercepted by a well.
Ground water appropriators who intercept tributary ground water have two
options: they may supply water to the stream replacing the amount of
tributary ground water they intercept, or they must stop pumping when it
interferes with the withdrawals of senior surface appropriators.
The conflicts in policies and legislation, both at any level of
government and among the levels of government, are reflected in the
institutions created to administer the legislation affecting ground water.
As discussed previously, ground water quality and quantity are often
intimately connected to surface water quality. Unfortunately, it is
common to find water quality and water quantity administered by separate
units of government, each with authority only in one field, and both
lacking any effective legislative authority which would enable the gap to
be bridged. For example, it is typical to have authority for various
aspects of ground water vested in the State Engineer (water quantity),
l-II-
-------
the State environmental agency (general ground water, quality) and the
State Health Department (public health aspects of potable supplies).
In some cases, the authority of the State Engineer is so circumscribed
that the allocation system is actually administered by the judiciary,
introducing yet another complexity and possible impediment to the orderly
management of the supply. In addition, surface water is not necessarily
managed on the same legislative and administrative basis as is ground
water, making effective protection of the water quality almost institu-
tionally impossible.
Such fragmentation is generally considered to be undesirable. As
a result, a number of States, particularly in the West, have taken at
least initial steps, usually limited to integrated management of the
quantity aspect alone, to make unified effective management possible.
Similar institutional problems exist between the Federal and State
levels of government. The Federal agencies have little direct authority
in ground water management, except in the case of the environmental
legislation and the organic acts of the Federal land managers. As a
result, the Federal developmental agencies have largely ignored ground
water quality, since they have been constrained by the requirements of
State water allocation systems, which all too often have failed to recog-
nize ground and surface water interrelationships.
Given the thrust of the Presidential directive, it is probable
that surface water development projects will no longer inadvertently
exacerbate ground water quality problems, although very probably at the
cost of tension between the Federal agencies and the States.
-------
SUMMARY
In summary, there is a definite link between the use of ground water
and ground water quality. A majority of States utilize allocation systems
which fail to directly address the ground water quality problems resulting
from ground water use. Similarly, only a few States have institutional
structures that take into account the quality/quantity interface between
surface and ground water resources. And, finally, the Federal government
historically has not played a major role in ensuring the protection of
ground water quality as it relates to the use of ground water.
Following are the findings or conclusions resulting from the foregoing
analysis.
GROUND WATER CONCLUSIONS
o There is an intimate hydrologic relationship between ground
and surface waters.
o Three quality/quantity problems exist:
1. Saline intrusion caused by aquifer overdraft
2. Polluting uses of ground water adversely affecting
ground water
3. Degradation caused by excessive withdrawals from
independent ground/surface water systems
o Congress failed to coordinate requirements of water quality
legislation (e.g., SDWA, RCRA, 208, 402, SMCRA) with require-
ments of State allocation systems.
o Basic legal doctrines used by States to allocate ground water
generally do not address depletion and are often inadequate
to resolve conflicts between surface and ground water uses.
-------
o Split quality/quantity authority at State level for ground
water.
o Institutions at the State level often do not reflect hydrologic
relationship between ground and surface water and quality and quantity.
o Federal agencies have often failed to consider ground water
quality impacts of their actions.
o President's Water Policy has attempted to address Federal
failure to consider ground water impacts.
o There is a need for conjunctive management (surface, ground,
quality and quantity) to assure effective management of total
water resource.
'10
-------
CHAPTER IX
ALTERNATIVES AND RECOMMENDATIONS
E-l
-------
Instream Flows
Alternatives
The alternatives relating to instream flows are grouped around three
issues. The first issue addresses the relationship between waste treatment
requirements and instream flows. Seven alternatives address this issue and
suggest both EPA actions and complementary State actions. The second issue
concerns flow levels necessary to meet the fishable, swimmable goals of Section
101 of the Clean Water Act. The third issue relates to consumptive waste
treatment and regionalization.
-------
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INSTREAM FLOW
RECOMMENDATIONS
The following recommendations address problems with wasteload allocations
and minimum stream flows. Consumptive wastewater treatment recommendations
related to instream flow maintenance are addressed in the recommendations re-
garding consumptive waste treatment technologies.
1. Minimum Stream Flows as Conditions of Grant Funding
In selected situations, as appropriate, EPA should consider conditioning
construction grants funding beyond secondary treatment, to require the grantee
to work with the State to try to assure that adequate stream flow would be
maintained. This approach would save grant funds as well as help to assure
their effective use. It would encourage the maintenance of stream flow in
selected situations, without requiring the development of new Federally mandated
programs for stream flow maintenance.
2. Flow Augmentation
EPA could modify its existing policy for allowing flow augmentation as a
fundable aspect of Federal projects, by allowing augmentation in order to meet
minimum stream flows included in water quality standards, or otherwise legally
required. Such a modification would have to be consistent with Section 102(b)(l)
which states that such storage or water releases "shall not be provided as a
substitute for adequate treatment or other methods of controlling waste at the
source." In accordance with Section 102(b)(3) the EPA Administrator will determine
-------
the "need for, the value of, and the impact of, storage for water quality
purposes. ..." This approach would encourage the development of minimum
stream flow requirements in water quality standards, and it would facilitate
Federal projects' compliance with the President's Water Policy on minimum
stream flows. EPA could implement this recommendation by initiating a review
of the FY 1979 policy.
3. Minimum Flow Standards
EPA should encourage States to develop minimum stream flow criteria on a
site specific basis, i.e., where required to assure achievement of water quality
standards. This should be done in coordination with State allocation programs.
There is an increasing recognition of instream flows under State allocation
systems. There should be a process for coordinating State instream flow
programs with the development of Clean Water Act requirements. Specifically,
the water quality standard setting process can be used jointly by State water
quality programs and State water allocation programs to identify stream segments
where minimum flow requirements are desirable and feasible. The programs can
jointly develop flow and velocity criteria. These can be incorporated into
water quality standards, and serve as the basis for waste treatment requirements.
Restrictions on flow modifications or withdrawls could be implemented through
State water laws, certification under Section 401 of the Clean Water Act, or
any other authorities available to the States.
EPA is participating in the Cooperative Instream Flow Group at Fort Collins,
Colorado, which is developing flow and velocity criteria. Whether EPA will
TI-)\
-------
develop such a program of its own will depend on the demand it would make on
EPA's already overtaxed resources and the effectiveness of other on-going pro-
grams, such as the one at Fort Collins.
4. Flow Related Permits
EPA should encourage the development of flow related NPDES permits where
feasible. These would require higher levels of treatment when necessary to
protect water quality in low-flow conditions, or modify water quality standards
based waste treatment requirements for other flow conditions. Such permits
would reduce O&M costs for municipalities, although the initial capital invest-
ment would be higher.
-------
Irrigated Agriculture
Alternatives
The alternatives presented for irrigated agriculture represent a series
of Federal actions, which, if the identified related State actions are
implemented, can be expected to result in implementation of more
efficient irrigation practices to meet water quality goals while
protecting the economic interests in irrigated agriculture. They
suggest several incentives and disincentives which can be used to
encourage needed change at the State level so that both quality and
quantity concerns relating to irrigated agriculture can be accommodated.
IX-13
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IX-17
-------
IRRIGATED AGRICULTURE
RECOMMENDATIONS
The actions recommended below are framed to support the primary State role
in allocation of water for reasonable and beneficial use, in this case irri-
gated agriculture. The Federal actions that are identified are intended to
encourage the States and individual irrigators to use water more efficiently,
which is consistent with State goals of maximum utilization and Federal and
State interests in water quality protection.
1. Federal Water Development Projects
a) It is recommended that the Federal government condition new water develop-
ment projects and renewals of existing water contracts on specific levels
of irrigation efficiency. While this alternative will have only limited
impact on existing projects in the near future, it is important that Federal
agencies assume a leadership role in ensuring adequate consideration of
water quality. The State action related to this proposal is to ensure that
water "saved" through increased efficiency remains available to meet water
quality requirements.
b) It is further recommended that for new projects and renewal of existing
water contracts, the pricing formula for water from Federal projects be
revised so as to discourage waste of water. Such a change would require
Congressional actions and, if implemented, water saved through more effi-
cient practices should be made available by the States for uses compatible
IX-18
-------
with water quality requirements. Any new pricing formula would have to be
sufficiently flexible to consider different levels of pollution problems in
different areas, admittedly a difficult task. One method of making water
pricing more realistic would be to use an increasing block rate structure in
determining costs and only subsidize reasonable water usage.
2. Purchase of Land and Hater Rights
In some areas conditions may be such that it is impossible to practice
irrigated agriculture and also attain water quality goals. It is recommended
that in those cases Federal funds be made available to purchase land and water
rights for retirement to protect water quality. The Federal government and the
States would work together to identify appropriate areas for acquisition. Some
changes may be needed in State allocation systems to allow for transfer of these
water rights to other uses that are more protective of water quality.
3. Rural Clean Water Program
Adequate and long-term funding of the Rural Clean Water Program (RCWP) is
recommended as a necessary measure to assist irrigators in meeting the costs of
installing new or improved irrigation systems for water quality purposes.
Assurances will be needed from the States that water saved through increased
irrigation efficiency under RCWP will be available for uses compatible with water
quality requirements.
IX-19
-------
4. Nonpoint Source Controls
Current EPA policy places a high priority on development of nonpoint source
control programs for agriculture. It is recommended that this high priority
be maintained. It is also recommended that Federal technical assistance to
States and private individuals be expanded to support the EPA priority on agri-
culture with special emphasis on irrigated agriculture. Existing programs
within the Agriculture and Interior Departments could be used to implement this
recommendation.
5. Conjunctive Water Quality/Quantity Management
The final recommendation is that additional Water Quality Management (208,
106) funds be appropriated to assist States in developing systems to integrate
water quality decision-making at the State level to reduce conflicts in the
area of irrigated agriculture and other areas as appropriate. Such a system is
essential to decision-making which will accommodate both quality and quantity
concerns.
IX-20
-------
Consumptive Waste Treatment Technologies
Alternatives
The alternatives presented for Consumptive Waste Treatment Technologies
(CWTT) can be categorized into two groups. The first three alternatives con-
cern actions which could be taken at the Federal and State level to help
resolve conflicts between EPA's policy to encourage municipalities to use CWTT
and State water allocation systems. The remaining four alternatives concern
Federal and State actions which could be taken in help resolve conflicts be-
tween requirements for zero discharge of pollutants for some industrial
subcategories and State water allocation systems.
ix-21
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CONSUMPTIVE WASTE TREATMENT TECHNOLOGIES
RECOMMENDATIONS
State water allocation systems, especially those in prior appropriation
States, generally are designed to provide for maximum utilization of the water
resource. To the extent that there is insufficient water, certain highly con-
sumptive uses which do not provide return flow may not meet the tests of
reasonable or beneficial use applied by the States. Because of its consumptive
nature, CWTT may, in some circumstances, be such a use. When the water quality
and water allocation systems are in direct conflict, one or the other must pro-
vide sufficient flexibility to allow for conflict resolution.
1. Consumptive Haste Treatment Technologies for Municipal Use
The first alternative describes the Agency's current policy concerning con-
sumptive waste treatment technologies for municipal use. The following two
alternatives are recommended to expand and improve the cost-effectiveness (C-E)
analysis, to more specifically take into consideration the impacts of a pro-
posed consumptive use on other water uses.
a) Cost Effectiveness Analysis - Total Costs
The recommendation to modify the C-E guidelines to require that the total
costs associated with the consumption of water be included in the analysis,
is consistent with most current analyses and consistent with recommendations
for change in the Multi-Purpose Project Guidelines. In situations where
IX-27
-------
insufficient water is available to support existing uses, a new consumptive
use may be challenged.
b) Cost Effectiveness Analysis - Basin-Wide Impacts
It is recommended that the cost-effective analysis be conducted on a basin-
wide basis to take into consideration all appropriate downstream and upstream
damages related to a proposed consumptive use. These recommendations could
possibly result in selection of advanced waste treatment as the most cost-
effective alternative to protect water quality standards.
2. Zero Pischarge for Industry
a) Coordination
To address possible conflicts between zero discharge requirements for in-
dustry and State water allocation systems, it is recommended that EPA work
with the States to develop workable processes, using existing coordination
processes under Section 301(c), 301(g), 309 and 316 of the Clean Water Act,
as appropriate, to address and resolve conflicts on a case-by-case and site
specific basis. Consideration should be given to taking advantage of the
provisions under Section 301(b) and 304(b) for non-water quality impacts of
industrial discharge standards. Such a coordination process, together with
State efforts to coordinate quality/quantity activities, should improve
quantity and quality management of the water resource. It should also tend
IX-2 8
-------
to maximize beneficial uses of the water while protecting the quality of
the water. However, because of past tradition, legal mandates and insti-
tutional jealousies, at both the State and Federal levels, full coordination
may be difficult to achieve in the short term.
b) Research and Development - Dry Cooling Towers
It is also recommended that the Federal government, specifically EPA and
DOE, should significantly increase the funding of research and development
programs to advance the technology of dry cooling towers. Dry cooling
towers have the potential to offer a workable solution for a less water
consumptive cooling process for water short areas. There are currently only
a few dry towers in operation. Improvements are needed in the technology to
improve the energy efficiency and overall cost effectiveness of the system.
IX-2 9
-------
Ground-Water
Alternatives
The alternatives presented for ground-water fall into two groupings.
The first three alternatives concern direct actions the Federal government
can take to ensure adequate consideration of ground-water impacts in
Federal decision-making and to utilize existing authorities to protect
ground-water quality. The remaining alternatives address opportunities
for cooperative Federal and State actions to provide for improved
management of ground-water and conjunctive management of the total water
resource.
IX-30
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-------
GROUND WATER
RECOMMENDATIONS
Historically, Federal programs impacting water resources have given only
limited consideration to the impacts of actions taken under such programs on
ground water. The first issue relates to direct Federal actions to improve
ground water quality.
1. WRC Principles and Standards
a) The alternative that proposes the Water Resources Council's Principles and
Standards (P&S) and Manual of Procedures be revised to provide increased
emphasis on ground water in Federal water resource planning is recommended.
A similar recommendation has been made through the President's Water Policy
Initiative.
b) The option which would require agencies not subject to P&S to consider the
ground water impacts of their decisions is recommended. The NEPA process
would be one way to accomplish this option. Another would be to enact a
specific legislative requirement. This option may meet with resistance from
other Federal agencies because increased resources will be needed to comply.
2. Existing Federal Legislative Authorities
It is recommended that existing Federal legislative authorities be fully
implemented. The positive impact on the quality of ground water will be
substantial.
IX-36
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The second issue relates to Federal/State cooperative efforts in ground-
water management.
3. Federal Financial and Technical Assistance
The first alternative reflects the traditional State responsibility for
ground-water management. Federal technical and financial assistance, both
through such EPA authorities as Sections 208 and 106, and authorities in other
Federal agencies, can be utilized to encourage improved ground-water management
at the State level. These actions are recommended. The additional costs of
such a program should be justified by its benefits in terms of cleaner water
and improved quantity/quality.
4. Coordination
a) Water Quality Management Program
The option which provides for the use of the existing Water Quality Manage-
ment program (Section 208) to serve as a coordinating mechanism to encour-
age conjunctive management of the total water resource is recommended. While
such an approach may only be effective in those States in which there exists
a working relationship among agencies concerned with ground and surface
water quality and quantity, the judicious use of Federal planning funds in
these States could produce positive results. Thus, this option is recom-
mended for use in those States where it is anticipated it will result in
increased conjunctive management.
ix-3 7
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b) National Ground Water Advisory Commission
The alternative which discusses a National Ground-Water Advisory Commission,
which would provide a forum for Federal agencies and States to identify
problems and work toward resolving them, is recommended. A similar recom-
mendation was made to implement the President's Water Policy Initiative,
and was supported by a Federal interagency task force. The Commission report
would provide the basis for a national ground-water policy.
c) WRC State Advisory Board
It is recommended that the Water Resources Council (WRC) establish a State
advisory board consisting of representatives from all 21 WRC regions. The
advisory board would provide a mechanism for the States to participate in
Federal water policy decisions affecting water quantity allocation at the
State level. It could also provide input to water resource development plan-
ning guidelines and Level B guidelines. Currently, there is no direct
State input to the WRC process, especially from those States not part of
River Basin Commissions. Increased coordination of quality and quantity
decisions should result.
d) WRC Title III Grants
It is recommended that adequate and sustained funding be provided to States
through WRC Title III grants for the development and implementation of
comprehensive water resources planning programs. These State programs will
be an additional mechanism to facilitate coordinated water quantity/quality
planning.
IX-3 8
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APPENDICES
Appendix A - State Water Law Summaries
Appendix B - Riparian State Water Permit Systems
Appendix C - Riparian Permit States - Instream Flows
Appendix D - Increased Efficiency Irrigation BMP's
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APPENDIX A
STATE WATER LAW SUMMARIES
[under separate cover]
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APPENDIX B
RIPARIAN STATE WATER PERMIT SYSTEMS
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APPENDIX B
Iowa Permit System
In 1957 the Iowa legislature enacted a statute applying to all water,
whether surface or groundwater, which requires a permit from the State
water commissioner before any water is withdrawn, diverted, or stored, with
certain exceptions. The effect of the Act on riparian rights is unclear.
The Iowa Natural Resources Council is responsible for administering the
permit program. Exemptions from regulation include:
1) Domestic purposes, livestock, domestic animals
2) Any beneficial use of surface flow in border rivers
3) Beneficial uses existing on May 15, 1957, within the territorial
boundaries of municipal corporations. Industrial users, within
municipalities, which have their own water supply may be regulated
when their use exceeds 3% more than the highest daily beneficial
use prior to the effective date of the Act.
4) Beneficial use by any person of less than 5,000 gallons daily
5) Use of diffused surface water
Permits are required for the following uses:
1) Any municipal corporation or person supplying a municipal
corporation which increases its water use in excess of 100,000
gallons or 3% (whichever is greater) per day more than its
highest per day beneficial use prior to May 16, 1957.
2) Users who divert, store or withdraw more than 5,000 gallons
per day, except for nonregulated (exempted) uses.
3) Any person who diverts water or any material other than water
from the surface into an underground watercourse or basin.
Such uses are exempt as of the date of the Act if they are not
wasteful or do not pollute the aquifer. Permits for this purpose
need prior approval of Iowa Water Pollution Control Commission.
5,000 gallon ceiling does not apply.
4) Industrial uses with own supply sources within boundaries of
-------
2
municipalities if their use exceeds 3% of highest per day
beneficial use prior to date of statute.
In practice permits are not required for farm ponds for storage in which
impounded water does not exceed 18 acre-feet of permanent storage and use
of water for highway construction. Routine conditional permits are issued
for these uses.
Permits may be issued only for a beneficial use and a permit for a depleting
use must protect the average minimum flow of a stream. In practice only
permits for consumptive uses are required to contain a stream flow protection
condition. For the most part, consumptive uses have been limited to irrigation.
The standard used for protecting streamflow levels is a flow level "equaled
or exceeded by the stream involved 84% of the time between April and
September in the past years determined to be the most representative of
normal conditions." This standard was adjusted for special circumstances
of each stream. USGS data was used to determine past history of stream flow.
Solutions to problems arising from consumptive use by several users at the
same source which could deplete the source below the limit set for individual
users are encouraged through sharing agreements among users.
The permit system only involves an administrative determination of the avail-
ability of unallocated water to satisfy a new permit, but there are no
procedures provided for the adjudication of conflicts betv/een vested water
right holders. Conflicts are resolved by the courts. No preferences are
established under the Iowa permit system. Permits may not impair pollution
control laws or navigability. Permits are only issued for beneficial (non-
wasteful and non-polluting) uses. The Commissioner has discretion as to
the duration of permits provided they do not exceed 10 years. Periodic
reports are required of the permittee. The Commissioner may suspend permits
in time of emergency.
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Mississippi Permit Statute
The permit system was introduced in the 1956 Water Code and is administered
by the State Board of Water Commissioners. The Act does not apply to
groundwater, but well drillers are regulated. With the following exceptions
all new uses of water after April 1, 1958 must be permitted.
1) Salt water bodies and any lake without an outlet where
only one landowner is riparian.
2) Dredging or washing of sand and gravel.
3) Customary domestic uses.
4) Groundwater
5) Springs arising on the owner's property as long as
the use does not interfere with the right of any user below.
6) Diffused surface waters.
7) Dams across gullys on one's own land so long as provision
is made to protect the established average minimum streamflow.
8) Dams on a stream having a minimum flow of not more than 1/2
million gallons per day for the purpose of diverting up to
300 acre feet of the impounded water, but such dams may not
affect the established average minimum flow below the dam,
and the impoundment will be subject to "lawful water rights of
others."
Before approving an application the Board must find there is available un-
allocated water, and must conclude the proposed use is for a beneficial
purpose and not detrimental to the public interest.
Permits are issued for a limited time period. For permits issued after
December 31, 1968 the Code recognizes the water should be put to beneficial
use to the greatest extent of which the resource is capable and that waste
or unreasonable use or unreasonable method of use of water be prevented.
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South Carolina Permit System
Surface water use is subject to the riparian system in South Carolina.
However, groundwater use is regulated as the result of the 1969 Groundwater
Use Act. Under this statute groundwater use is regulated in full capacity
use areas and a permit is required to divert groundwater in excess of
100,000 gallons per day. Existing riparian rights in surface water are
expressly preserved. To date no capacity use areas have been designated.
Hearings are not required for non-consumptive uses. In determining whether
to grant a permit for consumptive use the South Carolina Water Resources
Planning and Coordinating Commission is to consider several factors including
the effect upon other watercourses or acquifers. Permits may not be granted
to exceed the longest of 1) 10 years 2) the duration of the existing capacity
use area or 3) the period found necessary by the Commission to amortize the
water withdrawal and water-using facilities.
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Delaware Permit System
The Delaware permit statute became effective July 1, 1966 and is administered
by the Division of Environmental Control, Department of Natrual Resource and
Environmental Control. The permit statute was enacted for the purposes,
inter alia, of ensuring beneficial use of water resources avoiding waste,
assuring adequate supply, protection from pollution, protection of water
resources to protect the public health, safety, and welfare and for public
recreation purposes and conservation of wildlife and aquatic life. There
is some administrative confusion over division of responsibilities between
the Division and its predecessor agency, the Delaware Water and Air
Resources Commission, which still has responsibility for submerged and
subaqueous lands. The Commission has the power to reverse or modify any order
or action of the Division.
The permit program extends to all surface and underground sources, dams,
diversions, waterway obstructions and underground wells. Exceptions are
1) the preservation of riparian rights pre-July 1, 1966 actually in use
on or before that date 2) domestic (1 up to 3 families) and agricultural
uses 3) constructing dams and impoundments and 4) extending municipal
service through existing facilities. Exception #2 refers to dams which
do not reduce the stream below the average minimum flow required by the
Act, impoundments on a stream having a minimum daily flow of not more
than 1/2 million gallons so long as the user does not utilize more than
360 acre inches per year and so long as the impoundment or use does not
affect the established average minimum flow in the stream below the dam
at any time, and ponds not larger than 60,000 square feet for purposes of
conservation, recreation, propagation and protection of fish or wildlife,
stock watering or fire protection (no minimum stream flow limitation).
33M&-6
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2
Delaware recognizes the interrelationship of ground and surface water in
its administrative regulations which state, "It is recognized by the
Commission that the water resources in and on the State of Delaware may be
physically and hydro!ogically related and that where such a relationship
exists approval of uses of such waters shall take into account this rela-
tionship."
Permits for construction are valid for a period not to exceed one year.
It is unclear whether this one year limit applies to use permits. The
Division may require reports from water users regarding past and present
water use and the nature and extent of water facilities. Riparian water
use conflicts are resolved by the courts, although few such disputes have
arisen. It is conceivable that the Department could play a role in resolving
permit holders conflicts by terminating a permit as no longer reasonably
beneficial and by reduction of water use during emergencies (powers the
Department has), but there are no statutory provisions designed to resolve
conflicts.
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Kentucky Water Permits
The Water Resources Act of 1966 provides limited State regulation and con-
trol of water use. Administrative responsibility for the permit program is
placed with the Division of Water, Department of Natural Resources. The
Statute requires that before a user shall have the right to divert public
water, he must obtain a permit. Permits are not required for agricultural
or domestic purposes, including irrigation. Nor are they required for the
customary use of water in manufacturing or industrial processing, provided
the water is returned to the stream in substantially the same quantity and
quality as when withdrawn. Nor are they required for water injected under-
ground for the production of oil and gas. Permits must be obtained before
construction of obstructions across any stream or deposition of any matter
which w 11 obstruct stream flow. Construction for a beneficial use or for
agricultural purposes is exempted from the permit requirement.
A permit shall be issued if the proposed use will not be detrimental to
public interests or rights of other public water users. No permit application
for a useful purpose by a responsible applicant shall be denied, although it
may be issued for a lesser amount than was applied for. Records must be kept
of water withdrawn under a permit. Conflicts are resolved by the courts.
During times of drought or emergency the Division may allocate water among
permit holders. The permit system applies to waters which are surplus to
the established rights on a source.
The permit system applies to groundwater as well as surface waters.
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North Carolina Permit System
In 1967 North Carolina adopted a permit system for ground and surface waters
which is administered by the Board of Water and Air Resources. The Water
Use Act authorizes the designation of "capacity use areas", which are areas
where there is such demand for surface and ground waters that regulation is
necessary to protect the public interest and interests and rights of residents
or property owners. The Board may require, in such areas, reports from water
users. The permit system in these areas requires permits only for appropria-
tions in excess of 100,000 gallons per day for any purpose. For noncomsump-
tive uses over that amount a permit will be issued without a public hearing.
Rermits are subject to modification or revocation on 60 days' written notice.
"Consumptive use" refers to impact on quality or quantity. The Act pre-
serves pre-existing riparian rights to surface waters, but not to ground-
water.
Permits may be subjected to conditions. The duration of the permit may be
no longer than the longest of the following periods: 1) 10 years, 2) the
duration of the existence of the capacity use area or 3) the period found
by the board to be necessary for amortization of the applicant's water
withdrawal or water-using facilities. Permits may be renewed. There is
no provision for priority among competing applicants; nor are there pre-
ferences in time of scarcity. A permittee seems to have no security in
his use of the water as against later applicants, and his permit is a rela-
tively unsubstantial right.
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Maryland Permit System
In 1934 Maryland adopted a permit system which is administered by the
Department of Water Resources, a division of the Department of Natural
Resources. The permit system applies to surface and groundwater, and
construction of reservoirs, dams, and waterway obstructions. The permit
system requires a permit before appropriating or using any waters of the
State except as follows:
1. Any use in existence on January 1, 1934 (except where such use
was abandoned after that date).
2. Use of water for domestic and farming purposes.
3. Use of water for an approved water supply of any municipality
if the use was in effect on July 1, 1969.
4. Small ponds except waste water stabilization ponds.
5. Special Acts of General Assembly granting water appropriation
rights to City of Baltimore.
Conflicts among permit holders are resolved by the courts. A permit appli-
cation may be rejected if the proposed use is determined to be "inadequate,
wasteful, dangerous, impracticable, or will be detrimental to the Best
public interest." A permit applicant must provide proof that the issuance
of a permit will not violate State water quality standards or jeopardize
the Natural resources of the State. All permits are reviewed every 3
years, at which time they can be modified. The permit must specify the
time within which the appropriation is to be made (not more than 2 years)
or the construction commenced (not more than 5 years). Extensions may be
granted to these periods for good cause.
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Wisconsin Permit Statute
The Wisconsin permit program is administered by the division of environmental
protection within the Department of Natural Resources. The original, limited
permit program was enacted in 1935 and amended in 1967 and 1969. The Act
provides that it is lawful to divert the "surplus" water from a stream to
maintain the water level of any navigable stream or lake.
Navigability is defined very broadly. "Surplus" water is defined as any
water of a stream which is not beneficially used. Nonsurplus water may be
diverted for the purpose of agriculture or irrigation with the consent of
riparian owners damaged thereby but water shall not be diverted which shall
injure an unconsenting riparian or public rights in the stream. A permit
i.s required for diversion of surplus water for maintenance of water level and
of nonsurplus waters for agriculture or irrigation purposes. An irrigation
canal or diversion work must be completed within 2 years from the filing of
an application. All permits issued since 1957 must be reviewed annually
by DNR and be revoked if the withdrawal is found to be detrimental to other
riparians. The permit system has not been extensively used. By tn,e end
of 1966 only 174 irrigation permits were outstanding. Conflicts are resolved
by the courts.
Any person engaged in mining and processing of iron ore may apply for a
permit to divert water from any stream on lake. Such mining is declared
to be in the "public interest". Diversion from a watershed for a consump-
tive use is contemplated by the statute. Consent of riparians is not
required as a condition to issuance of a permit. The applicant is entitled
to condemn riparian rights adversely affected. However, such riparians may
bring an action of inverse condemnation. The DNR may fix the duration of
such taconite permits, which is the time necessary to exhaust the ore
supply.
BT-RHO
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2
The 1945 High Capacity Well Law requires approval of DNR for underground
withdrawals through wells where the capacity and rate of withdrawal of
all wells on one property exceeds 100,000 gallons a day.
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Minnesota Permit System
In 1937 Minnesota adopted a permit system which, although it does not
incorporate the basic principles of a system of prior appropriation, does
provide limited State regulation by requiring permits to appropriate or
use State waters. The permit program is administered by the Commissioner
of Natural Resources. Permits are required for appropriation or use of
water, both surface and groundwater, except at follows:
1) domestic use serving at any time less than 25 persons
2) beneficial uses and rights, outside the geographical limits
of any municipality, in existence on Julyl, 1937 or any
beneficial uses and rights, within the geographical limits of
any municipality in existence on July 1, 1959.
Permits are also required before building a dam or other waterworks or
before an installation for appropriating or using water can be modified.
One is also required to change or diminish the course, current or cross
section of any public water. Public waters are defined as all waters in
streams and lakes capable of sustaining beneficial public use. A permit
must be granted by the Commissioner if he concludes the proposed appropriation
provides for the most practical use of the water and will adequately protect
public safety and promote the public interest. He must deny a permit if he
concludes the proposed use is "inadequate, wasteful, dangerous, or impractical,
or detrimental to the public interest."
In the case of State v. Kuluvar the Minnesota Supreme Court upheld the
constitutionality of the permit statute and, in holding that the State has
a proprietary interest in all "public waters" which is paramount to the
rights of private riparian owners stated "(t)o permit such owners to interfere
with the natural rights of the public to fish, hunt, swim, navigate or other-
wise enjoy such waters would result in subordinating public rights to private
-------
2
rights and in abdicating the State's trust over an incomparable natural
resource." The court in that case, however, did limit the applicability
of the statute to require a permit only where public uses are in some way
adversely affected.
Water permits are revocable at the will of the Commissioner. The only
exception are permits for mining taconite, copper, copper nickel and nickel
which may be for a specified time and during that time are irrevocable except
for breach of permit condition by the permittee. Permits are not the basis for
resolving conflicts between water users since the purpose of the permit
statute is not to resolve private rights; rights are defined and conflicts
resolved through the courts. The Commissioner has discretion to condition
permits. Permits have occasionally been issued which prohibit lowering the
stream level below a certain minimum level, particularly where smaller
streams are involved. Opinion varies as to whether a permit will issue for
water use on non-riparian land, although it appears such use has only been
allowed a few times for temporary sand and gravel washing after access
rights over riparian land have been obtained by the permittee. The statute
contains no use preferences for times of scarcity. Priority in time of filing
gives no preference over later applicants.
A permit must specify the time within the construction or the diversion will
be completed, not to exceed 5 years from the date of the permit. Permittees must
keep records of the quantity of water they use or appropriate. Installation
of a flow meter or timing device may be required. It is unclear whether
permit rights are transferable.
The Minnesota permit statute preserves riparian rights in existence on
July 1, 1937 but it is unclear whether the statutes existinguish unused
riparian rights. Minnesota follows the "reasonable use" rule. The State
courts have indicated a bias toward recreational and esthetic uses over
-------
those which are purely commercial.
Although a municipality is not regarded as a riparian owner, it does possess
"public rights" which are superior to the rights of private riparian owners.
The courts have held that a municipality can divert water from a large
stream to supply its inhabitants even though downstream riparians' flow
is diminished and the municipality does not have to compensate them.
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Florida Permit System
Florida enacted the Water Resources Act in 1972, which applies to all
surface and underground waters. The Act is administered by the Department
of Natural Resources and largely implemented by water districts under
the supervision of the Department. The Act abolishes all riparian rights,
whether used or unused. Existing users had 2 years within which to obtain
permits. Among the purposes of the Act is preservation of natural resources,
fish and wildlife. The Department may divide areas within water districts
into "hydro!ogically controllable areas" for the purposes of describing
State water resources, establishing minimum flows for surface watercourses
(the level at which further withdrawals would be significantly harmful to
the water resources or ecology of the area), and establishing minimum levels
fo> bodies of surface water and underground aquifers (levels at which
further withdrawals would be significantly harmful to the water resources
of the area). Minimum flows and levels may reflect seasonal variations and
the Department shall consider and at its discretion protect nonconsumptive
uses when setting minimum flows and levels. The Department has authority
to establish a system of priorities or preferences in types of use, or
purposes of use, for certain areas to be designated by the Department.
Preferred uses are those designated as enhancing water resources and are
given preference over competing applications. For uses which have been
designated as objectionable, permits may be denied. Existing permittees
are preferred over new applicants when the public interest would be served
equally well. As between competing renewers it is not clear whether the
advantage of priority in time exists.
-------
Permits are required for all consumptive uses, except for domestic consump-
tion by individual users. An application must show the proposed use is a
reasonable - beneficial use, will not interfere with any presently existing
legal use of water and is consistent with the public interest. Water under
permit may be used on non-riparian lands. In approving an application and
issuing a permit, the Department or district board may reserve water other-
wise covered by the permit in such locations, quantities and seasons as
may be required for protection of fish, wildlife, and public health and
safety. Permits are for a limited duration and even while in effect are
subject to restrictions in water use during times of shortage and modifica-
tion at the request of the applicant.
If a proposed use does not exceed 150,000 gallons per month, the board may
consider an application and any objections without a hearing. If it exceeds
3,000,000 gallons per month the application may be considered without a hear-
ing if no objections are filed. Permits may be issued for any period not to
exceed 20 years, except they may be issued for up to 50 years to municipalities
and other governmental entities and the extended time is required to retire
bonds issued to finance construction of waterworks and waste disposal
facilities.
In addition to the permit system for consumptive uses, permits are required
for the construction, alteration, and operation of dams, reservoirs, and
impoundments. A third permit system exists for wells.
Since the 1972 Act recognizes no permanent rights to water use, no statutory
procedure was developed to resolve water use conflicts. The courts would
be the forum for resolving such conflicts.
The Florida statute requires permits for the withdrawal of groundwater and
contains specific provisions for recharge of aquifers, regulation of discharges
into aquifers to prevent pollution and saltwater barrier lines to prevent
saltwater intrusion.
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New Jersey Permit System
In 1963 New Jersey adopted a permit system to control the use of waters of
the State which is administered by the Water Policy and Supply Council,
Division of Water Policy and Supply, Department of Environmental Protection.
The permit system only applies to designated watersheds. It applies to
both surface and groundwater. Under the permit system no person may divert
in excess of 70 gallons per minute for any private use other than reasonable
domestic use without first obtaining a permit. If the proposed use is
nonconsumptive, a public hearing is not required. Before granting the
permit the Council must consider whether the permit is in the public
interest; provides for proper and safe construction of all works involved,
provides for proper protection of the watershed from contamination, will
unduly injure private interests, and whether it will be just and equitable
to all persons concerned. Consideration must also be given to present and
future demands on the water supply.
Prior riparian rights in newly designated areas can be preserved through
obtaining a permit. Permits may be conditioned, are limited to a definite
period not to exceed 25 years and are not transferable. Permits for diversion
of surface water for private consumptive use can only be issued for periods
of time where water is available in excess of the average minimum daily
flow of the watercourse or the minimum desireable low flow to be determined
by the Council. Irrigation permit applications must be accompanied by a
recommendation from the Agricultural Extension Service as to optimum rates
of application and total amounts of water required by the crops and soil types
involved. Permits may not be transferred except upon approval by the Council.
Conflicts between water users are resolved under principles of riparian law
(reasonable use) by the courts. However, when the Council grants a permit,
the attendent diversion or use shall not be enjoined. This provision of the
statute is apparently designed to protect a permittee from a cause of action
W-e-B-
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2
by a riparian owner to prevent the use of the unallocated waters of a
stream.
The permit system applies to groundwater in designated areas where the
diversion of groundwaters exceeds or threatens the natural recharge. Where
the permit system is in effect no one may divert in excess of 100,000 gallons
per day for any purpose without first obtaining a permit. The Council
may refuse to grant a permit or may include conditions as the Council deems
necessary to protect and conserve groundwaters. A refusal to grant a permit
is reviewable by the courts. Groundwater diversions prior to designation of
an area can continue without obtaining a permit. In nondesignated areas
the reasonable use rule applies to groundwater withdrawals (quality and
quantity). The New Jersey court has recognized the interrelationship between
ground and surface water and has held that the improper use or diversion of
groundwater may make a person liable where the flow of springs and streams
is materially interfered with as a result of excessive groundwater use.
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Groundwater is presumed to be percolating water. The permit system covers
groundwater withdrawal but there is no general legislative scheme regulating
aquifers or drilling of wells. Nor has there been any attempt to preserve
artesian pressures, maintain underground water levels or establish any
other concept similar to the protected minimum flow relating to surface streams.
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APPENDIX C
RIPARIAN PERMIT STATES - INSTRFAM FLOWS
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Appendix c
Appendix:
Permit laws in riparian States that specifically require maintenance of
minimum stream flow levels include:
Iowa - Permits for a depleting use must protect the average minimum flows
of a stream. Generally, this requirement has only been applied to irrigation.
New Jersey - Permits for diversion of surface water for consumptive use can
only be issued for times when water is available in excess of the average mini-
mum desired flow. The minimum desired flow is determined by the Water Supply
and Policy Council. A permit must be obtained for withdrawing over 100,000
gallons of ground water per day. A permit may be denied or conditioned to pro-
tect and conserve ground water.
Minnesota - Water permits may prohibit lowering the stream level below
a certain minimum level, particularly on smaller streams. The State courts
have favored recreational and aesthetic uses over purely commercial uses. Muni-
cipalities can divert water for public water supply without compensating any
downstream riparians who might be injured.
Wisconsin - The law allows diversion of "surface" water from a stream to
maintain the water level of any navigable stream or lake.
Maryland - A permit applicant must provide proof that the issuance of a
permit will not violate State water quality standards or jeopardize the natural
resources of the State. The permit system applies to ground and surface waters.
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Appendix C
Delaware - The permit system applies to impoundments and dams that reduce
the stream flow below specified levels.
Mississippi - The permit system applies to dams on streams with flow above
the statutorily defined minimum. Excepted dams may not affect the established
average minimum flow below the dam. The Board of Water Commissions cannot
approve appropriations that will reduce flows below the average minimum stream
flow or lake level.
Florida - The Department of Natural Resources has authority to establish
minimum levels for bodies of surface water and underground water aquifers. In
the granting of permits, water may be reserved for protection of fish, wildlife,
and public health and safety.
-ST-A-Z.
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APPENDIX D
INCREASED EFFICIENCY IRRIGATION BMP's
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APPENDIX D
Potential benefits to be obtained from efficient use and management of
irrigation water supplies include:
(1) Improved surface and ground water quality
(2) Increased water supplies during water short years
(3) Replenishment of needed instream flows, particularly during period
of low flow
(4) Provision of additional quantities of water for other beneficial
uses where needed
(5) Minimizing "mining" of nonrenewable ground water supplies.
Technical and management procedures presently available for increasing
the efficiency of irrigation and reducing the quantity of water needed involve
both off-farm and on-farm systems. Off-farm improvements needed include
reducing conveyance system water losses by providing impervious linings to
canals and laterals, installing closed pipe systems, and consolidating or
realigning systems. These improvements help to control water consumptive weed
and aquatic growth in order to minimize erosion of soils, reduce operation and
maintenance problems, improve water flow and quality, and prevent drainage
problems.
Other off-farm measures can include flow-measuring devices or the automation
of system facilities to regulate the flow of water, control its evaluation,
and schedule its transmission to discharge areas. If the system cannot maintain
a demand related uniform water level and flow, efficient deliveries to an on-
farm system cannot be made. The proper operation of storage reservoirs,
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outlet works, diversion dams, and conveyance systems to the farm is essential
to meet downstream flow demands and diversion demands, and to provide efficient
operation of the entire system.
As in off-farm conveyance systems, impervious linings, water control
structures, and automation can increase the efficiency of on-farm systems and
reduce water use. In addition, leveling of the land may be practiced to allow
better control and more uniform application of the water when needed. Measuring
devices to allow application of only the correct amount of water needed at
each irrigation also increase efficiencies. They must be used and maintained
to be effective.
Switching to the best method of applying water to the surface (sprinkler,
drip, or trickle methods) in accordance with soils and crop requirements will
improve the efficiency of on-farm irrigation. No one method is consistently
superior to another and the selection of the method should be based upon site
conditions to maximize benefits and conserve water. To achieve the most
effective operation and efficient use of water, factors to consider are the
local rainfall, energy requirements for the system involved, operation and
maintenance costs, and availability of labor.
Tailwater recovery systems on farms can be used to reduce the quantity of
runoff. They consist of a detention pond or sump and a pump and pipeline
system used to recirculate the water back through the system and re-apply it
to the land.
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Proper waste management for irrigation purposes will involve control of
the rate, quantity, and schedule for applying water to the soil for use by the
crops in an efficient manner. Effective management of an improved and effi-
ciently designed system can reduce diversions from streams, extractions from
ground water bodies, tail water runoff, and losses to ground water. Water
quality can be improved, labor costs reduced and crop yields increased.
Adequate scheduling is most effective when irrigation water supplies are
adequate, but can be useful in managing a limited supply.
0. S. GOVERNMENT PRINTING OFFICE : 1979 0 - 300-368
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