U.S. DEPARTMENT OF COMMERCE
National Technical Information Service
PB-277 120
Land Application of Wastewater and State
Water Law: An Overview (Volume I)
Economic Research Service, Washington, D C
Prepared for
Robert S Kerr Environmental Research Lab, Ada, Okla
Nov 77
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TECHNICAL REPORT DATA
^^^^^^^^^^^^^ (Please read Instructions on the reverse before completing)
1. REPORT NO.
EPA-600/2-77-232
^•^^^ta-^^^fc^—^»—^^—^^^^—^—^^— I "
4'TTANDNAPPLTICATION OF WASTEWATER AND STATE WATER LAW:
AN OVERVIEW (VOLUME I)
6. REPORT DATE
November 1977 issuing date
6. PERFORMING ORGANIZATION CODE
7. AUTHOR(S)
Dopald W. Large
8. PERFORMING ORGANIZATION REPORT NO.
0. PERFORMING OROANJZATION NAME AND ADDRESS.
university or Wisconsin Law Ychool
Madison, Wisconsin 53706
(In cooperation with Economic Research Service,
U.S. Department of Agriculture)
10. PROGRAM ELEMENT NO.
1BC611
11. CONTRACT/GRANT NO.
EPA-IAG-D5-0799
12. SPONSORING AGENCY NAME AND ADDRESS
Robert S.'Kerr Environmental Research Lab. - Ada, OK
Office of Research and Development
U.S. Environmental Protection Agency
Ada, Oklahoma 74820
13. TYPE OF REPORT AND PERIOD COVERED
Final 6/30/75 - 9/30/77
14. SPONSORING AGENCY CODE
EPA/600/15
16. SUPPLEMENTARY NOTES
IB. ABSTRACT
This research project was undertaken with the overall objective of analyzing state
water rights law in order to determine its possible impact on systems of land
application of wastewater. It was determined that most states do not have regu-
lations specifically controlling land application of wastewater, and that an
analysis would have to be undertaken of basic state water law principles which,
for the most part, have been developed with entirely different uses of water in
mind. There is a basic distinction between the "riparian" states of the East,
which emphasize the right of each riparian landowner along a watercourse to the use
of the water, and the "appropriation" states of the West, which emphasize that
the right inures to the prior user of the water. For the most part, state
water rights law was found to contain enough flexibility, through its emphasis
on encouraging "reasonable" uses of water, to enable land application systems
to operate free from legal uncertainty..-- -••-••
17.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
b.lDENTIFIERS/OPEN ENDED TERMS
c. COSATI Field/Group
Water law
Water policy
Judicial decisions
Legal aspects
68D
18. DISTRIBUTION STATEMENT
RELEASE TO PUBLIC
19. SECURITY CLASS (This Report)
UNCLASSIFIED
20. SECURITY CLASS (TMipage)
UNCLASSIFIED
122. PRICE
EPA Form 2220-1 (9-7J)
I
U. S. GOVEHNMENT PRINTING OFFICE: 1978-757-140/6629 Region No. 5-II
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EPA-600/2-77-232
November 1977
LAND APPLICATION OF WASTEWATER
AND STATE WATER LAW:
AN OVERVIEW
Volume I
by
Donald W. Large
University of Wisconsin Law School
Madison, Wisconsin 53706
Contract No. EPA-IAG-D5-0799
Project Officer
Curtis C. Harlin, Jr.
Wastewater Management Branch
Robert S. Kerr Environmental Research Laboratory
Ada, Oklahoma 74820
This study was conducted
in cooperation with
Economic Research Service
U.S. Department of Agriculture
Washington, D.C. 20250
ROBERT S. KERR ENVIRONMENTAL RESEARCH LABORATORY
OFFICE OF RESEARCH AND DEVELOPMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
ADA, OKLAHOMA 74820
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DISCLAIMER
This report has been reviewed by the Robert S. Kerr Environmental
Research Laboratory, U.S. Environmental Protection Agency, and approved for
publication. Approval does not signify that the contents necessarily reflect
the views and policies >.of the U.S. Environmental Protection Agency, nor does
mention of trade names or commercial products constitute endorsement or
recommendation for use.
ii
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FOREWORD
The Environmental Protection Agency was established to coordinate
administration of the major Federal programs designed to protect the
quality of our environment.
An important part of the agency's effort involves the search for
information about environmental problems, management techniques and new
technologies through which optimum use of the nation's land and water
resources can be assured and the threat pollution poses to the welfare
of the American people can be minimized.
EPA's Office of Research and Development conducts this search
through a nationwide network of research facilities. As one of these
facilities, the Robert S. Kerr Environmental Research Laboratory is
responsible for the management of programs Including the development and
demonstration of soil and other natural systems for the treatment and
management of municipal wastewaters.
Although land application of municipal wastewaters has been prac-
ticed for years, there has been a growing and widespread interest in
this practice in recent years. The use of land application received
major impetus with the passage of the 1972 amendments to the Federal
Water Pollution Control Act. Subsequent revisions in the Environmental
Protection Agency construction grants regulations made the use of land
application mandatory if it was the most cost effective alternative and
satisfied other applicable requirements. As land application became
more widespread, a growing need developed to define the legal aspects of
this technology, particularly with respect to the water rights laws of
the various states. The purpose of this report is to satisfy this need.
This report contributes to the knowledge essential if the EPA is to
meet the requirements of environmental laws that it establish and enforce
pollution control standards which are reasonable, cost effective and
provide adequate protection for the American public.
William C. Galegar
Director
Robert S. Kerr Environmental Research Laboratory
iii
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PREFACE
Land application of wastewater for Irrigation and other purposes is be-
coming an increasingly popular method of sewage treatment and disposal. In
a time of intensified concern with water quality, care must be taken to
insure that land application systems are planned and operated consistently
with applicable water quality standards.
While Federal laws and regulations pertaining to preservation of water
resources will have application to land application systems, another source
of legal control not yet intensively studied is the water law policies of
the states in which land application systems are being or will be developed.
While some states have specific regulations pertaining to land application,
most do not. In this latter group of states, it becomes necessary to analyze
the possible impacts a land application system might have on the waters of
the state, and to determine general water law framework.
The purposes of this report, therefore, are: (1) to define the legal
questions which pertain to land application of wastewater in the context of
state water rights law; (2) to explain the two basic theories of water law
prevalent in the United States; and (3) to identify the particular aspects
of each water law doctrine that may influence treatment system design and
operation. Occasional reference will be made to the laws of particular
states, although detailed description of the variations of the law in each of
the states selected for in-depth study will be undertaken in Volume II of
this report. It is intended that this report shall serve as the basis from
which the more specific state analyses shall proceed.
iv
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ABSTRACT
This research project was undertaken with the overall objective of
analyzing state water rights law in order to determine its possible impact
on systems of land application of wastewater.
It was determined that most states do not have regulations specifically
controlling land application of wastewater, and that an analysis would have
to be undertaken of basic state water law principles which, for the most part,
have been developed with entirely different uses of water in mind.
Several basic dichotomies were noted which could have some impact on the
treatment of land application systems in different locations. There is a
basic distinction between the "riparian" states of the East, which emphasize
the right of each riparian landowner along a watercourse to the use of the
water, and the "appropriation" states of the West, which emphasize that the
right inures to the prior user of the water. In addition, most states in
both the riparian and appropriation categories distinguish between "natural
watercourses," "surface water," and "groundwater," with different legal con-
siderations and results frequently occurring in different categories of water
within the same state.
Occasional abstract legal requirements of absolute purity of waters were
found which, if literally applied, could pose adverse Implications for any
innovative uses of water, including land application. For the most part,
state water rights law was found to contain enough flexibility, through its
emphasis on.encouraging "reasonable" uses of water, to enable land applica-
tion systems to operate free from legal uncertainty.
This report was submitted in fulfillment of Contract No. EPA-IAG-D5-0799
by the Economic Research Service, U.S. Department of Agriculture, under the
sponsorship of the U.S. Environmental Protection Agency. The report covers
the period June 30, 1975, to September 30, 1977, and work was completed as
of July 31, 1977. Research for the report was performed at the School of
Natural Resources and Law School, University of Wisconsin-Madison, pursuant
to Cooperative Agreement No. 12-17-06-8-1423-X between the University of
Wisconsin and the Economic Research Service, U.S. Department of Agriculture.
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CONTENTS
Foreword Hi
Preface . . iv
Abstract v
Acknowledgment viil
1. Introduction 1
2. Conclusions -. . . . 5
3. Riparian States . 7
Law of natural watercourses 7
Law of surface waters 18
Law of groundwater 23
4. Appropriation States 28
Doctrine of appropriation 28
Law of natural watercourses 33
Law of surface waters 39
Law of groundwater 46
References ..... 50
Glossary 59
Preceding page blank
vii
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ACKNOWLEDGMENTS
The cooperation of the School of Natural Resources and Law School at the
University of Wisconsin, Madison, Wisconsin, and the Vanderbilt University
School of Law, Nashville, Tennessee, is gratefully acknowledged. I am parti-
cularly Indebted to Dean T. Massey, Agricultural Economist, Economic Research
Service, U.S. Department of Agriculture, stationed at the University of
Wisconsin Law School, who served as the technical advisor for the project.
His advice, coordination of the various stages of the project, review of the
several drafts of the report, and editing of the final report proved
invaluable.
Dr. Curtis C. Harlin, Jr., Robert S. Kerr Environmental Research
Laboratory, served as the Project Officer for the U.S. Environmental
Protection Agency, and Dr. Lee A. Christensen, Economic Research Service,
U.S. Department of Agriculture, served as the Project Director. Their
assistance, cooperation, and comments while reviewing the drafts of the
report are appreciated.
I am grateful for the basic legal research done by John A. Lang, a
1976 graduate of the University of Wisconsin Law School, who was my research
assistant during the first year of the project.
J. Peter DeBraal, General Attorney, Economic Research Service, U.S.
Department of Agriculture, provided many valuable insights into the law when
reviewing the report. His suggestions resulted in greater accuracy.
Cathy Coats and Melissa Greenhill of the Vanderbilt University School of
Law secretarial staff and Cornelia K. Cain of the School of Natural Resources,
University of Wisconsin, deserve special mention for the efficient and
accurate typing and retyping as the report evolved into its present form.
viii
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SECTION 1
INTRODUCTION
The purpose of this report is to define the legal questions which per-
tain to land application of wastewater in the context of private water rights
law, explain the two basic theories of water law prevalent in the United
States, the riparian and appropriation theories, and identify the particular
aspects of each doctrine that influence treatment system design and operation.
Despite intense current interest, land application of sewage effluent is
in fact an ancient practice, with instances occurring in Athens, Greece, as
early as the first and second centuries B.C. In medieval Europe, particularly
in Germany, extensive land application of sewage promoted the growth of grain
and vegetable crops. By the nineteenth century, the use of sewage on farm-
land had spread throughout continental Europe and England, and was even
occurring in the colonies of the various European countries (1).
The method most widely used for spreading effluent at that time was irri-
gation; this proved to the the simplest way of disposal of large quantities
of sewage. However, one drawback with the use of sewage in this manner was
the fact that this was generally the only treatment the waste received.
Hence, any mismanagement in the use of waste effluent on farmland led to crop
failure and the creation of a disease-ridden nuisance. Despite these appar-
ent drawbacks in the use of raw sewage, well managed farms frequently pro-
duced twice the yield of conventional farms in the same vicinity.
The United States began to dispose of sewage effluent on land during
the late nineteenth century. The first use of waste effluent was for irri-
gation purposes, but by the early twentieth century groundwater recharge
projects had become an alternative use in the semi-arid regions of the South-
west. During this time raw sewage began to receive preliminary treatment, of
which screening and settling were the predominant features, before being
applied to the land. By 1899 land disposal sites were in existence in 20
states. However, during the first half of the twentieth century, many of
the land disposal sites in the Eastern States were abandoned because of
population pressure and increased land values (2).
As the land disposal method of waste treatment moved further westward,
variations of the,purpose of this practice began to occur as knowledge and
technology caught up with the waste disposal demands of a highly industrial-
ized society. Land disposal systems that were limited to simple irrigation
techniques during the 1930's developed into new and more sophisticated
techniques during the early 1950's.
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Land application methods presently in use can be classified into three
main groups: irrigation, overland-flow or spray-runoff, and rapid infiltration
(2). Before any one of these methods is implemented, the complex ecological
systems that may be affected must be taken into consideration. Thus, unlike
the old methods that viewed the land only as a dumping site, the new ap-
proaches attempt to integrate the particular method with the geological,
climatologic, and hydrologic limitations of the particular site and the sur-
rounding locality.
The irrigation method involves the controlled discharge of effluent, by
spraying or surface spreading, onto land to support plant growth. It can be
broken down into three different types of application—spraying, ridge and
furrow method, and flooding. Use of one or another of these three alterna-
tives will depend upon many factors, including the type of crop, the climate,
and the topography of the region. The irrigation method has been developed
for municipal wastewater and a variety of industrial wast'ewaters, including
food processing wastes, pulp and paper discharges, tannery wastes, animal
feedlot effluent, and chemical discharges (2).
The overland-flow method involves the controlled discharge, by'spraying
or other means, of effluent onto the land with a large portion of the waste-
water appearing as runoff. The rate of application is measured in inches
per week, and the wastewater travels in a sheet flow down the grade or slope.
The most obvious characteristic of this particular method is the sheet flow
of effluent over a sloping service area, usually 2 to 6 percent (2).
The rapid infiltration method, frequently used for groundwater recharge,,
involves the discharge of a large quantity of effluent onto land which has
been chosen for its relatively high infiltration capacity. This particular
method utilizes the same filtration technique employed in sewage treatment
facilities and combines two functions, treatment and disposal, into one
operation (2).
As land application of wastewater for irrigation and other purposes
becomes increasingly more popular, each of the three application methods
raises certain legal questions. In addition, each aspect of the typical
land disposal system—=(1) transmission of wastewater from treatment plants
to storage lagoons5 (2) holding effluents in lagoons until application to the
land; (3) application; and (4) subsequent possible drainage into watercourses,
groundwaters or surface water—presents certain unique legal problems.
The law will interact with land application of wastewater in several
ways. First, Federal water pollution control legislation, while not
directly concerned with land application until 1972, now includes certain
specific provisions that tends to encourage land treatment of wastewater (3).
The Federal Water Pollution Control Act Amendments of 1972 authorize Federal
construction grants to state and local agencies to assist in the development
of facilities f,or recycling potential sewage pollutants through agricultural
and forestry production, reclamation of wastewater, and disposal of sludges
in a manner not harmful to the environment (4), ,
Second, state-level legal and institutional problems will vary from state
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to state. Some, such as Arizona, Arkansas, Colorado, Georgia, New Mexico,
Texas; and Wisconsin, have specific regulations pertaining to land application
of wastewater (5); others have more general regulations that may include this
process, intentionally or unintentionally, as part of a larger regulatory
scheme (6). Yet others have nothing at all directly in point. Moreover,
even in those states which have pertinent regulations, there is considerable
variance in their coverage of questions such as pre-treatment methods to be
used, manner of wastewater application, characteristics of useable waste-
water, and uses to which wastewater may be put.
This report is concerned primarily with the legal problems that may be
encountered in the final—or drainage—stage of land application systems.
Drainage patterns can be affected by many factors, Including land preparation,
methods of wastewater application, soil characteristics, slope, spacing of
Irrigation equipment, cover crops, buffer zones, and climatic conditions. But
in any situation, the land application of wastewaters—much of which had
previously been discharged into natural watercourses—will have several
effects.
First, land application will alter the flow pattern of the body of water
into which wastes would haVe been discharged in the absence of the land appli-
cation system. The alteration may increase the quality of the body of water
in question, while diminishing the quantity of its flow.
Second, land application may cause diversion of some surface waters,
because wastes now being processed for on-land application may previously
have been carried away by the flow of surface waters.
Third, trace contaminants may remain on the land after application, and
may either seep into underlying groundwater supplies, drain into a lake or
stream, or be carried off the appliation site with surface waters. In each
of these situations adjoining landowners might have a recognizable legal
claim for pollution of the water.
These varying effects will raise potential legal problems under the water
law of each state where a land application system is located. Analysis is
complicated by the fact that most states have different legal structures for
different classifications of water, with the result that apparently similar
legal questions can receive widely divergent answers, depending on whether
the affected water is characterized as a "natural watercourse," "groundwater,"
or "surface water".
It is difficult to provide a general description of water law because
the subject is subdivided into numerous categories. At the outset, most
states divide their basic law of water into three categories—natural water-
courses, groundwater (or percolating water), and surface waters. The placing
of a particular body of water into one category or another is often crucial to
the outcome of a case, as the same state often has rules of conduct that vary
widely from one type of water to another. Hydrologists have long noted that
the legal claspifications are arbitrary and do not bear any relation to known
hydrologic facts (7). Indeed, early legal cases creating the distinctions
acknowledged that the reason for the difference in legal treatment (between
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surface and sub-surface water, for example) lay not In the fact of the water's
location or hydrological characteristic, but in the differing degree of avail-
able knowledge about the water's existence, quality, and volume of flow (8).
For example, since a landowner could see the harm done to adjoining landowners
if he diverted or polluted a visible watercourse, liability was much more
likely to ensue than in a case of diversion or pollution of groundwaters.
As knowledge has advanced to the point that the location, recharge rate
and other.characteristics of groundwater can be ascertained with substantial
accuracy, it seems that the legal distinctions created in a prior century
should be replaced by a more general body of water law. In fact, there is
a gradual tendency to apply an all-encompassing do'ctrine of "reasonable use"
to judge all proposed uses of water despite the type of water Involved. The
trend, however, is so gradual, and the basic three-part division so well
established, that each legal "type" of water must be discussed separately.
In addition to the above division, other divisions further complicate
the subject. The most important is the distinction, occurring originally in
the "natural watercourse" area, between the "riparian" theory prevalent in
the Eastern States and the "appropriation" theory that has either supplanted
or wholly replaced the riparian theory in the 17 contiguous Western States
and Alaska. Under the riparian theory the right to use water is based on
•ownership of land on the bank of a watercourse, while no such requirement
exists for the appropriation theory. Use under this theory is based on a
prior appropriation of the water (9). The dichotomy between the two systems
of allocating water rights is of such significance that each system must be
treated separately. •
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SECTION 2
CONCLUSIONS
The water law of most states is favorable to land application of waste-
water, although there are occasional uncertainties caused by the fact that
many states have no statutes, regulations, or even judicial decisions involv-
ing the unique aspects of land application.
The position of land application systems is particularly strong in
eastern, riparian states. There could be legal consequences in most of these
states for polluting any of the "types" of water—natural watercourses, sur-
face waters, or groundwater. However, this risk is quite small and would, at
worst, involve relatively small amounts of money. In addition, given the
riparian states' emphasis on protecting "reasonable" uses, it is almost incon-
ceivable that a land application system would be judicially enjoined or other-
wise prevented from operating because of its anticipated effects on drainage
patterns or because of any trace pollution that might ensue. If any nearby
landowner tried to enjoin the system's operation, the system would have
several strong "equitable" defenses with which to defeat such an action.
The .legal position of land application systems is not as strong under
the Western States' appropriation doctrine. The principal reason for this
difference is because in most of the Eastern States other individuals, parti-
cularly nearby landowners, will have enforceable rights only in natural
watercourses, and an application system, if it will have any impact on water
quality or drainage at all, will have its principal effect on surface water
drainage patterns. In the Western States, however, appropriative rights will
frequently cover surface waters, either directly or indirectly through rights
in the watercourse to which those waters drain. Consequently, operators of
land application systems in the Western States cannot eliminate the risk of
liability for dispersal of pollutants by the simple expedient of retaining
all surface waters on the application site, as they can do in riparian juris-
dictions. In Western States there is always the risk, the imminence of which
will vary with the uses being made of the water in the area of each particular
application site, that interference with surface water drainage may impede
another appropriator's vested right. Although this is unlikely to lead to
the system's being enjoined from operation, it does make the possibility of
successful damage claims more likely in Western than in Eastern States.
In addition, the Western States base the acquisition of a right to use
water primarily on the priority of the use. This means that in Western
States, a land application system being instituted at the present time may be
in a less favorable position to claim a right to use water as opposed to
another nearby water use that has been in operation for several years. In
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contrast, the rights of riparians in Eastern States are equal no matter when
each use of water began; a use in operation for several years cannot fore-
close a newly-proposed use by another riparian.
these distinctions between Western and Eastern States mean that a land
application system in Western States (1) might have more difficulty in esta-
blishing an initial right to use water, because of other prior uses; and (2)
might have a risk of liability for damages to a slightly broader group of
water users. On the other hand, if a nearby landowner tried to enjoin an
established land application system, his chances of success would be as
unlikely in most Western States as in Eastern States. This is because, in
a judicial action between competing landowners, the western courts recognize
the same "equitable" defenses as do eastern courts and place the same
emphasis on allowing "reasonable" uses of water to continue in operation.
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SECTION 3
RIPARIAN STATES
LAW OF WATERCOURSES
Description
Once a "natural watercourse" has been ascertained, the owners of inter-
ests in land adjoining the watercourse will have riparian rights. The right
is a property right, but rather than being a type of ownership, it gives the
owner only certain rights to make use of the water:
Water is a movable, wandering thing, and must of necessity con-
tinue common by the law of nature; so that I can only have a
temporary, transient, usufructuary property therein: wherefore
a body of water runs out of my pond into another man's, I have
no right to reclaim it. (10)
In contrast to the appropriation doctrine, actual use of the water, or prior-
ity of use, is irrelevant to the existence of the riparian right. It inures
in the ownership of an interest in riparian land, and a riparian who has not
previously used the water has just as much right to it as one who has used
the water for many years.
Theories of Riparian Rights—
There are two basic statements of the scope of riparian rights. The
"natural flow" theory states that the owner of riparian land .is entitled to
the natural flow of the stream past his land (or, in the case of a lake, to
its' level in its natural condition) without diminution in quantity or deteri-
oration in quality (11). Under this theory, also known as the "English"
rule, the landowner's right was enforceable even if no actual damages could
be proved (12). The same view has been adopted in those United States juris-
dictions that follow the English rule (13). However, the right has never
been quite as absolute as it sounds. Each of the riparians, for example,
might use the water for necessary household and domestic purposes, such as
drinking, bathing or cooking, without liability to downstream riparians
even though such uses must necessarily consume some water and thereby diminish
the flow of the river at least slightly (14) . However, any use tending to
diyert more than a minimal amount of water, or affecting the stream's quality
or velocity of flow in a material way, was unreasonable and enjoinable.
The natural flow theory discouraged any development of industry or agri-
culture that'relied on using the waters of a stream. The surge of industrial
development in the eastern United States in the latter half of the nineteenth
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century caused many courts to conclude that the natural flow theory prevented
effective utilisation of their state's water resources. In most industrial-^
izsd states, the English approach was replaced by the "reasonable use" theory.
Under this view each riparian landowner had an interest in only so much of £ha
stream as he could put to a reasonable and beneficial use, with due regard foi?
the similar rights of other riparians to put the stream to reasonable uses,,
This new theory had several important aspectsa of which the most important
were that proof of actual damages to the plaintiff and proof of the unreasoa~
ableness of the defendant's use became essential to the maintenance of an
action (15). ~ ^ '
t
It should be emphasized that the development of the reasonable use
theory was not a blank check for diversion and pollution of natural water-
courses. Extreme cases of pollution could be and were, occasionally, en-
joined. But as courts became more inclined to vindicate private water, rights
by an award of money damages rather than by the grant of an injunction that
might close down, an industry (16), the consequences of the reasonable use
theory included both more effective utilization of water for agricultural
and industrial purposes, and eventually more pollution as well. Although
massive pollution by an industrial plant might still be enjoined, a "small"
amount of pollution would often be condoned==or would entitle the plaintiff
to a damages award only—if it was the necessary result of producing a
desired good. But as industry multiplied on major waterways, a series of
"small" polluters could eventually overload the carrying capacity of the
river and produce the same deterioration as one or two massive polluters. In
addition, the location of a series of industries on the same river tended to
establish the area's "industrial" character and, thus, the reasonableness of
each industry's choice of location; and it made it increasingly difficult for
a plaintiff to prove whose discharge caused his harm.
The trend from the natural flow to the reasonable use theory has been
an ongoing and gradual process. Even today there are states that, in name
at least, observe the natural flow theory. Moreover, in many of the states
which have adopted the reasonable use approach, "natural flow" language may ,
reappear in the course of an opinion in a case won by the plaintiff.
Factors Establishing a Reasonable Use-=
Since most' of the litigation that occurs today will occur in a contest 'of
deciding what is a "reasonable use," it is worthwhile to examine what is
meant by the term. Under the natural flow theory, the withdrawing of water
from a stream could occur for a "natural" purpose, which was generally per-
mitted, or for some other riparian or non-riparian purpose, which was
generally prohibited. This classification of purposes for which water was
withdrawn decided many cases. But under reasonable use analysis it is neces-
sary in all cases to determine whether the particular use is reasonable or
not. Basically, to be reasonable, the purpose must be lawful and beneficial
to the drawer of the water, such as propelling machinery, operating a mill,
or generating electricity. The use is not reasonable if the user is acting
in violation of law, or out of spite or with malice, or in any case without
demonstrable benefit to himself. Also the purpose must be suitable to the
stream involved, and the social value of the proposed use is a proper factor
in determining what is reasonable. Consumptive uses of even substantial sise
8
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are proper if they produce economic benefits recognized as desirable by the
customs of the particular locality. Irrigation, for example, is a reasonable
use in all jurisdictions (17). Even under the reasonable use concept, of
course, a particular irrlgational enterprise might be held to be improper if
the method used to divert water to the irrigated land was wasteful in appli-
cation, or pre-empted too much of the flow of a stream for what was seen as
just a moderate irrigational benefit.
Another important factor in determining reasonableness of the use is the
destination of the water. Although a diversion of water to non-riparian land
is not necessarily unreasonable under the reasonable use rule, still the
question of where the water is being used is a relevant issue since the right
in question is a "riparian" right. A riparian can, in most states, use the
water on all of his land even though some of the land is not "riparian," but
a totally non-riparian use by a non-riparian landowner is usually still un-
reasonable even under the most liberal application of the reasonable use rule.
In addition to the purpose and destination of the use, other important
factors in determining whether a particular use is reasonable are: (1) quan-
tity of water to be used; (2) quality of the water when returned to the
stream; and (3) alteration of the manner of flow.
A quantitative division may be easy when two potential users are located
directly across the stream from each other, but when, as is usually the case,
they are upper and lower proprietors, the court's decision must consider the
total number of affected riparians, many of whom may not be directly repre-
sented in court, and the quantities of their several needs. In ascertaining
the defendant's fair share of the water, the court may consider such factors
as the parties respective stream frontages, the size of the stream, the nature
of the proposed use, and the amount of land requiring irrigation possessed by
each claimant. Also, an important factor is whether the diversion will return
the used water to the stream in quantity equivalent to that diverted; thus
an irrigational use, with a high degree of water loss through evaporation,
may be less likely to be reasonable than an industrial use with little water
loss (18).
In general, riparian uses that adversely affect the purity of flow are
more sharply restricted than those affecting only the quantity of flow. Pol-
lution cases are usually caused by mining, industrial use, and the disposal
of urban sewage; as might be expected, such cases often involve conduct with
a high degree of social utility but causing a significant decline in water
quality. As a result it is difficult to state a general rule as to how
much, pollution is reasonable. Usually the use is reasonable where the degree
of pollution is small, with significant factors including such things as the
volume and velocity of the stream, the uses to which it had previously been
put, the use and location of plaintiff's land, the magnitude of the harm
caused to plaintiff, and the customs of the locality.
Alterations in the manner of flow generally involve: (1) detention of
water, either permanently or temporarily, by means of a dam; (2) construction
by one riparian designed to prevent water damage to his property; or (3) in-
creasing the rapidity of the current, either through changing the structure
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of the stream or through discharges into the stream. In determining the rea-
sonableness of any such alteration, courts consider all the relevant circum-
stances, including (in case of a detention) the quantity of water detained,
the length of the period of detention, the general usage of streams in the
locality, and the timing of detention in relation to the needs of other users.
Remedies for Invasion of Riparian Rights—
Assuming a plaintiff pleaded a cause of action for invasion of his ripar-
ian rights because of trace contamination of the watercourse on which he
owned riparian land, several issues that can be loosely grouped as questions
of remedies assume importance. The type of remedy most likely to be sought
would be judicial. Although every riparian state has an administrative pro-
gram for controlling water pollution, none of the administrative programs
preempts available judicial remedies. Once a plaintiff seeks a judicial
remedy for harm allegedly caused to him, his choice is to seek injunctive
relief and/or money damages. In either case the action for invasion of a
private riparian right in water is usually characterized as an action in
private nuisance, with the available remedies and their limitations follow-
ing the traditional pattern of nuisance cases.
Injunctive relief—The remedy with the most extreme consequences for the
defendant would be an injunction. A court granting injunctive relief could
'either order the defendant to abate the nuisance by modifying the defendant's
manner of operation; or, if defendant's operation cannot be modified to cause
less pollution, the court could terminate defendant's entire operation.
The usual basis for a court's willingness to consider injunctive relief
is the inadequacy of the plaintiff's remedy at law for money damages. This
inadequacy is fairly easily established in water law cases if the plaintiff
can otherwise demonstrate a case on the merits—that is, actual harm to him
caused by defendant—since the alleged wrong is usually of a recurrent nature,
such that the plaintiff would need a multiplicity of suits at law, and since
money damages are traditionally said to be inadequate where damages are to
land (19).
Even if the plaintiff proves his harm and proves causation by defendant,
however, injunctive relief will not automatically be granted. From the basic
principle that "he who seeks equity must do equity," the courts have devel-
oped a number of defenses to a plaintiff's action for injunctive relief.
The first such defense is that of "laches". This rule provides that a
plaintiff who delays in the enforcement of his rights, and by his delay
causes additional harm to the defendant and which prompt action would have
avoided, will be barred from seeking injunctive relief. For example, if a
plaintiff landowner observed construction of a factory which he knew might
interfere with his riparian rights, but did not sue until after the .factory
was completely built and operating, he would not be allowed to obtain an
injunction (20). The doctrine is not applicable to actions for money
damages, which will be governed by a statute of limitations, but it still
prevents mpst enterprises once they commence operation from being shut down.
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In the case of a major on-land application system, the creation of which
was accompanied by a reasonable amount of publicity, it is likely that once
the system is in operation, any action by downstream riparians for injunctive
relief would be barred by this doctrine. The only possible ways of avoiding
this doctrine would be if the plaintiffs could show either that they did not
reasonably know about the system until after it was completed, or that, even
if they knew of the system's pendency, they did not reasonably know that it
was likely to affect their water rights until after it was in operation (21).
However, if a plaintiff could have learned about the manner of operation of
the application system, including the possibility of trace pollution, he will
be barred by laches even if he did not in fact learn of its operation until
after it was underway (22).
A second defense is one called "coming to the nuisance" (23). Like
laches, this }.s another form of acquiescence in the defendant's conduct.
Under this doctrine, a plaintiff who has purchased land in the vicinity of the
defendant's land on which the conduct objected to was already occurring is
often said to have "come to the nuisance" and is therefore barred from in-
junctive relief. The courts in the United States are in disagreement regard-
ing the availability of this defense. The cases allowing the defense emphas-
ize that, without it, a plaintiff can buy land cheaply next to a known
nuisance, close down the nuisance and thereby achieve a windfall (24). The
majority, however, reject this defense, usually on the ground that allowing
it permits the early settlers in a neighborhood to completely control the
future nature of the area, and thus blocks the fluidity of land use that is
seen as a basic ingredient of the American economy (25).
The most important defense to a suit for an injunction is the process
known as "balancing of the equities" (26). Under this doctrine, an injunc-
tion will be refused—despite the plaintiff's having established a cause of
action—where granting the injunction would cause substantial hardship to the
defendant without, equivalent benefit to the plaintiff. This process is uni-
versally followed where the plaintiff's injuries are merely nominal (27).
Even where the landowner proves substantial harm, however, a significant
number of courts are still willing to balance conveniences (28). For example,
in the classic Tennessee case of Madison v. Ducktown Sulphur, Copper & Iron
Co. (29), three farmers proved that the company's air pollution caused a sub-
stantial amount of damage to their farmlands. The company, on the other hand,
proved that there was no feasible way to reduce the pollution from its ore-
reduction furnaces under the existing technology; that it had located at a
prudent location, as far away from residential areas as the transportation
needs of its employees would permit; that it employed a significant number of
people and paid a large amount of property taxes; and that the local commun-
ity would be severely depressed if it had to cease operations. The court, on
the basis of these facts, declined to issue an injunction and relegated
the farmers to an action for money damages only.
The issue of whether courts should "balance the equities" once the com-
plaining landowner has proven a case has been a persistently recurring one in
a time of heightened concern over air and water pollution. A few courts have
rejected the concept, noting that the doctrine allows the polluter to compel
the injured party to sell an interest in land to the polluter, and that in
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cases between small landowners and large industries it deprives the finan-
cially poorer litigant of his property in favor of the more powerful. Others,
however, have emphasized the drastic consequences that could ensue if a land-
owner with perhaps several hundred dollars of damages could shut down a large
industrial plant. Even New York, which was once a leader among states re-
fusing to balance equities to deny injunctive relief, has recently noted in a
air pollution context that it will not use nuisance cases to fashion an air
pollution code, and will, in appropriate cases, deny injunctive relief
despite plaintiffs' having proved their case (30).
In general, the majority of courts today will not grant injunctive relief
that shuts down an industry or other major water user without just examining
the harm that will ensue, not merely to the parties but als'o to the community
at large, if the relief is granted. Among the factors that would be relevant,
in the context of land application systems, are:
1. The prudent choice of location of the place of application;
2. The fact that on-land application cannot be conducted without
some dispersal of trace contaminants;
3. The jobs created by the project;
4. The crops grown for public consumption by the project;
5. The revenue to be derived from crops sold, in the case of
public application facilities;
6. The cost-effectiveness of the system as compared to alternate
disposal methods for effluent;
7. The cost savings to the community for wastewater treatment;
8. The project's furtherance of the often declared national
goal of cleaning up America's waterways; and
9. The project's furtherance of the goal of lessening farming
dependence on chemical fertilizers.
All of these factors would be strongly arguable in support of the on-
land application system; all would rebut a plaintiff's request for injunctive
relief. In sum, assuming that the particular system is prudently operated
such that the plaintiff's injury, if any, is not being caused by any negli-
gence of the system's operator, then it seems likely that, in any court will-
ing to balance the equities, an injunction closing the project would be
denied to any complaining landowner.
Money damages—A landowner's other possible judicial remedy would be an
action for money damages, which could be brought either separately or in the
same action as the request for an injunction. The damages remedy is more
complex in terms of defenses available, recoverable items of damages, burden
of proof, and recoverable measure of damages. A number of the defenses
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available in an action for injunctive relief are not available in an action
for money damages. The defense of "laches" is unavailable, since the action
for money damages is governed by an applicable statute of limitations. Most
importantly, the doctrine of "balancing of the equities" is not available,
as the plaintiff is not seeking equitable relief (an injunction) lying in the
discretion of the court, but relief to which he is legally entitled (money
damages) if he proves his case. Accordingly, the Wisconsin Supreme Court
in Jost v. Dairyland Power Corp. (31) held the defendant's proof of the
economic and social utility of its conduct, while relevant to an action for
injunctive relief, was irrelevant to an action for money damages. Thus; a
defendant found to be creating a nuisance causing harm to adjoining land-
owners may not be closed down but may be required to buy out those landowners.
Regarding what the plaintiff is required to prove in order to establish
a cause of action, in a "natural flow" jurisdiction the plaintiff can re-
cover nominal damages in the absence of proof of actual harm. Assuming,
however, that the plaintiff will want more than the pride attendant upon a
successful jury verdict for $1.00, in all riparian jurisdictions he will
have to prove the actual damages he has suffered. The damages must be "real,
material and substantial" (32), and must include proof of not only harm to
the plaintiff but the fact that the defendant is the direct and proximate
cause of the harm. The plaintiff will bear the burden of proving each
element of the cause of action (33).
Once the threshold issue of material harm has been met, another
question is what principle will be applied to determine the amount of
damages recoverable by the plaintiff? The action may be one for permanent
damages or one for temporary damages. Where the harm caused is found to be
capable of correction, generally only temporary damages are allowed; the
usual measure of recovery being the depreciated rental value of the property
during the period of continuance of the nuisance (34). But where the harm
caused is incapable of being correct except for closing the offending
business, and where the court has determined as matter of discretion that it
will not allow an injunction to close the business, the landowner will be ,
allowed permanent damages. The measure of permanent damages to the riparian
owner is the difference in the value of the land before and after the injury
(35). In Standard Hocking Coal Co. v. Koontz (36), where the defendant
pumped sulphuric acid from its coal mine into a stream running through the
plaintiff's land, the court stated that:
We further think that it is a sound principle of law that
in an action for damages to real property testimony is admissible
to show the exact character of the injury suffered, whether of a
permanent or irreparable nature, or of the sort susceptible of
repair,'so that the property may be restored to its original
condition. If the testimony shows the former to be the nature
of the injury, the measure of damages is the difference in value
.qf the property before and after the injury. If an injury sus-
ceptible of repair has been done, the measure of damages is the
reasonable cost of restoration plus the reasonable compensation
for any loss of the use of the property between the time of
injury and restoration, unless such cost of restoration exceeds
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the difference in the value of the property before and after the
injury, in which case the difference in value becomes the law. (37)
Another issue with regard to money damages is the types of harm a
plaintiff can recover damages for. It is generally stated that one may
recover for any injury flowing in the usual course of things from the wrong-
ful conduct. "Personal inconvenience" is sometimes rejected as an indepen-
dent basis for the recovery of damages, on the theory that it is an aspect
of the recovery for harm caused the landowner in the use and enjoyment of his
lands has been incorporated into the recovery for declining market value,
and should not be used again as a base for damages. However, in some
instances recovery may be allowed for the defendant's noise, decrease in the
"comfort and enjoyment" of the plaintiff's premises, and for "annoyance and
inconvenience" caused by the pollution.
If "malice" can be shown, punitive damages may be collectible. Al-
though it would seem that "malice," in the lay sense, could not be shown in
operating any land application system, a recent Oregon case, McElwain v,
Georgia-Pacific Corp, (38), is of some interest. In this case the plaintiff
sued to recover damages to his realty caused by smoke and fumes emitted by
the defendant's paper mill. The trial court withdrew the issue of punitive
damages raised by the plaintiff. On appeal by the plaintiff from a jury
verdict of only $2,000 compensatory damages, the supreme court reversed and
remanded the case for a new trial, holding that punitive damages could be
recovered "...wherever there was evidence of a wrongful act done intention-
ally, with knowledge that it would cause harm to a particular person or
persons" (39). As the dissent pointed out, the court's broad definition of
malice could cover virtually every case of industrial or municipal pollution«
Although such decisions should be noted as perhaps reflecting a tendency
toward imposing the costs of pollution more directly on the polluter and
users of the polluter's product, it does not follow that the operator of
an on-land disposal system, even if it lost a nuisance suit for money
damages, would be obligated to pay punitive damages. The pollution in the
Oregon case, while perhaps unavoidable, was a particularly obnoxious type
(sulfide emissions) and carried on in substantial amounts. In addition,
evidence indicated that the company had moved slowly to utilize readily-
available pollution control equipment. Even in a state disposed to adopt
the broad Oregon definition of malice, of which there are few, the typical
on-land application system will involve primarily the removal of pollutants
from streams, not their introduction, with only minor or trace elements
returning to streams. It is highly improbable that an on-land application
system, operated with due care9 including all reasonably-affordable pollu-
tion control devices, would be liable for punitive damages.
Implications for Land Application Systems
The law of natural watercourses in most riparian states does not distin-
guish between the different types of land application systems, such as the
several types of irrigation methods, the overland-flow method, or the rapid
infiltration method. The law is concerned instead with the effect of any
proposed use on the quality and quantity of the water flowing in a natural
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watercourse, and on the uses that may be made of that water by other
riparians.
Any of the major types of land application systems could have either or
both of two possible effects on natural watercourses:
1. The system, by collecting wastes which may previously have been dis-
charged into natural watercourses, will alter the pattern of flow of
the body of water into which the wastes would have been discharged
in the absence of the land application system. Basically, the
system's institution will improve the quality of the water, but
decrease the flow beneath the previous point of discharge.
2. After the wastes are collected, treated, and applied for irrigation
purposes under any of the methods of application, trace contamin-
ants may remain which may then drain into a natural watercourse.
Such drainage may occur into either the original watercourse from
which the wastes were diverted or into a different body of water.
Although the amount of remaining contaminant may vary with the type
of application method, the care with which the effluent is applied,
the characteristics of the soil and other factors, the legal
principles and their implications remain the same in any case. The
result in a given case, however, might vary with the severity of the
pollution caused by the trace contaminants.
With regard to the first effect of an application system on a water-
course, interference with flow, the law of natural watercourses in riparian
states has generally favorable implications. Any of the possible methods
of application would be defined as "irrigation," and it is uniformly held
that irrigation is a reasonable—and therefore permissible—use of the waters
of a natural watercourse. Since this conclusion has been stated in situations
where the irrigator is diverting the pure waters of a stream, the same con-
clusion is even more likely where the irrigator is diverting primarily
wastes and, as a result, improving the stream's quality. In addition, a few
riparian states distinguish between "consumptive" and "nonconsumptive" uses
of water. In these states a land application system, unlike more typical
methods of irrigation, would probably be considered "nonconsumptive,"
because it would divert primarily wastes, rather than the stream's natural
flow of water. Uses bearing such a label are more likely to be upheld as
reasonable.
This general conclusion of reasonableness does not mean that every
conceivable land application system would be shielded from legal consequences'
in every conceivable riparian state forum. For example, a particular project
might divert a tremendous amount of wastes and, necessarily, some water
alongtwith the wastes. If this occurred on a stream where a downstream land-
owner could prove that he was harmed by the loss of wastes and water flow,
that owner would have a claim against the operators of the system. Since
most landowners cannot be harmed by the removal of effluent from their
stream, this is unlikely to happen; only a downstream user unconcerned about
guslity of flow but only concerned about quantity—such as a hydroelectric
plant—would be a possible complainant. Also, since riparian rights attach
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only to the water in the watercourse, and not to any wastes previously dis-
charged into the water; the fact that the discharges now being diverted had
occurred for many years would not be legally significant.
Such a lawsuit is unlikely to occur; however, if it did occur the
operators of the application system could be held liable for the damages
proven by the downstream landowner, and might even, in an extreme case, be
enjoined from further operation of _the system. Because of the many "equit-
able" defenses previously discussed, the possiblity of an injunction being
issued against a use legally characterized as "reasonable" is quite small.
To minimize this possibility still further, there are several steps that can
be taken in the institution and operation of a land application system:
1. In establishing sites for land application systems, consideration
should be given to the nature of the uses of the water occurring
downstream from the point of diversion. The existence of a large
water consumptive user whose use does not depend on the quality of
the flow, such as a hydroelectric power plant, or flow within
reasonable water quality limits, such as a pulp and paper mill,
could be cause for concern. Although there is no precise boundary
that can be stated, the further downstream the conflicting use is
located, the less relevant it is, since it will be more and more
difficult for the user to prove the land application system caused
any harm to his operation.
2. In establishing sites for land application systems, consideration
should be given to the Volume of flow of the stream or river from
which diversion will be made. The same diversion may tremendously
affect the quantity of flow on a small stream but have only a
marginal impact on the quantity of flow on a large stream. On the
the other hand, conflicting uses of water may be more likely to
occur on the large stream, in which case these factors may counter-
balance each other.
3. If diversion of wastes will occur directly from a natural water-
course (as opposed to diversion before the wastes enter a natural
watercourse) care should be taken to insure that as much of the
water as possible is either left in the watercourse or if removed,
returned at or near the point of original diversion. '
The second way in which the law of natural watercourses in riparian
states intersects with land application systems is when, after application,
trace contaminants remain on the land and are eventually washed into a
natural watercourse. Such a result will not always occur; the nature and
quantity of trace contaminants remaining after application will be a function
of the method of application used and the skill with which it is applied.
It is clear that there can be liability in all riparian states for the
pollution of the waters of a natural watercourse. This can occur even with
a use that is "reasonable;" it being recognized that even reasonable uses
may harm other interests and should compensate those harmed as part of the
cost of operation. Theoretically an injured downstream landowner could
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receive relief in the form of either money damages or an injunction. How-
ever, the likelihood of either type of relief being awarded is extremely
remote.
If an application system was being carelessly operated, causing pollu-
tion that coujLd be avoided by careful operation, then an injunction against
the careless operation might ensue. But if the system is being carefully
operated, and if the only pollutants returning to natural watercourses are
those unavoidably remaining after application, then it is most unlikely that
the entire application system would be enjoined from further operation.
Since most riparian states apply the "balancing of the equities" doctrine,
their courts will consider, in any action for an injunction,, all the facts
relating to the reasonableness and usefulness of the land application system.
Many damages sought by a claimant instead of injunctive relief would be
in theory easier to obtain. The possibility, however, is limited by several
factors. First, the right to sue for harm to a watercourse is limited in
almost all riparian jurisdictions to persons owning an interest in land ad-
joining the watercourse. Citizen suits by non-riparians are authorized by
certain Federal laws, and non-riparians, as well as riparians, can sue in
some states to protect common law rights in navigable waters, such as the
right of the general public to fish in or boat on such waters (40). However,
the possible trace pollution that might occur after application is extremely
unlikely to rise to the level of substantial interference with the public's
common law rights. The more likely possibility is the assertion of damage to
one's riparian rights; and within this legal category one who does not own
an interest in affected land cannot sue.
Second, the landowner who brings suit must prove actual harm to the
water that affects the market value of his land. Even if he proves that some
pollution is occurring, that is not enough to recover damages; he must show
that the pollution is causing harm to his property that affects its market
value. In the case of mere trace pollutants, such a showing will usually be
difficult if not'impossible to make. And, finally, any possible recovery of
damages will be limited to the proven decline in the land's market value. In
a rural area this will not often be a large amount, and as a result grandiose
or vexatious claims will be discouraged.
There is no way the system's operators can totally eliminate the possi-
bility of liability for trace pollution of a natural watercourse. Even if
all necessary operating permits in the particular state are secured, these
permits do not shield the operator from possible liability. Therefore, in
establishing sites for land application systems, consideration should be
given to whether the desired method of application and the soil characteris-
tics will cause a greater residue of pollutants than would occur with a
different method of wastewater management. Consideration should also be
given to whether there is a watercourse located close enough to the appli-
cation, site quch that pollutants might drain into the watercourse, such as
during heavy rainfalls. If there is a watercourse located close to the
application site and likely to occasionally receive trace pollutants, then
consideration should be given to the nature of the uses occurring downstream
and whether any of them are likely to be harmed by the types of pollutants
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that may be discharged, and to the quality and flow of the watercourse, and
the likely impact of the pollutants upon that quality and flow. A few
riparian jurisdictions require monitoring of specific parameters, such as pH,
biochemical oxygen demand (BOD), suspended solids, and fecal coliform
bacteria (3, 5-6). Some of these jurisdictions will be specified in Volume
II of this report.
In conclusion, in most riparian states it will be unlikely that any land
application system could be subjected to damage awards of a size likely to
impair the successful continued operation of the system. Although an in-
stance of negligence—say, in design of a system or in treatment or disper-
sion of wastes—could lead to a substantial damage claim. However, the risks
are small in ordinary operations. The potential riparian plaintiff's obliga-
tion to prove demonstrable harm and causation of his harm by the system will
be exceedingly difficult to sustain in a case involving only trace contamin-
ants remaining after careful operation of the system. Even if an occasional
case could be proven, the further limitations on recovery, in particular the
market value standard, will prevent the sort of grandiose claims that could
impose severe costs on a waste disposal system. Vexatious litigation by
nearby landowners fearsome of the waste disposal system is always a possibil-
ity, but in the absence of provable negligence in any phase of the systems
operation, the chance of success in such suits appears small.
LAW OF SURFACE WATERS
Description
It is clear in all riparian jurisdictions that a landowner can make any
use he desires of the surface water found within the boundaries of his land.
Riparian rights do not attach to water until it reaches a natural watercourse,
and there are no other recognized concepts of "rights" in water in the
riparian theory states which restrict consumption of water on the land where
it is found. Consequently, a lower landowner cannot prevent an upper land-
owner from making whatever use he pleases of the surface water, even if that
use prevents any surface waters from reaching the lower land.
The more difficult legal issues involving surface waters occur when the
surface water crosses from the upper to the lower landowner's land. The
legal issues can involve either: (1) the asserted privilege of the lower
landowner to refuse to receive the surface waters coming to the edge of his
property, usually by building a wall or dam; or (2) the asserted privilege
of the upper owner to cause the surface waters to flow (a) onto the land of
one who would not naturally receive them, or (b) onto the land of one who
would naturally receive them, but with an accelerated flow. «
Civil Law Rule—
Where the case involves obstruction or deflection of flow of surface
waters, there is a three-way division of authority in riparian jurisdictions
as to the appropriate rule. The earliest rule applied in the United States is
what is known today as the "civil law" rule. Basically, the civil law view
was that the natural state of affairs should be disrupted as little as
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possible. All land was seen as subject to a natural obligation, called a
"servitude," to receive the natural flow of surface water. Consequently,
a landowner who obstructed such a flow onto his lower-lying lands would be
liable for damages caused thereby to the upper landowner (41). Similarly,
as the servitude applied only to natural drainage, states following the civil
law view held that the upper landowner could not send the surface waters
onto land of another where they would not naturally flow (42), and that he
also could not alter the manner of flow onto the lower landowner against his
objection (43). Although the latter two points have been modified in many
Jurisdictions that no longer follow the strict civil law view, the civil law
doctrine retains much modern support and acceptance, despite the obvious
handicap it imposes on development. Cases applying some version of the civil
law rule can be found today in Georgia, Iowa, Kentucky, Maryland, Michigan,
Mississippi, Nebraska, North Carolina, Ohio, and Oregon (44). In the absence
of a valid claim of prescription, the landowner in a pure civil law juris-
diction would not have a right to change the directional flow of surface
waters as established by natural conditions, nor to concentrate or accelerate
the flow by means of drains and ditches.
There are, however, a number of qualifications of these rules in most
civil law jurisdictions. For one thing, a landowner may erect improvements
on his land, or use the land for agricultural purposes, and in the absence of
negligence he will not be held liable for damages because of changes in
surface water drainage resulting from such activities (45). Another excep-
tion found fairly frequently in court decisions holds that surface water may
be drained by a ditch that is constructed in accordance with the natural flow
of the surface waters (46). Similarly, it is frequently held that a riparian
owner can construct ditches to drain surface waters into the watercourse if
that is the natural drainage pattern and if the construction and consequent
drainage does not result in a flow exceeding the capacity of the water-
course (47). The harshest aspects of the civil law rule have been further
mitigated by decisions allowing alterations causing only "minimal" harm (48), •
and by an occasional judicial inclination to avoid the rule by classifying the
water in controversy as "flood waters," to which the civil law rule is in-
applicable (49). Also modifying the rigor of the civil law rule is the
tendency in some states to retain the civil law rule as the "rural" rule and
adopt the common enemy rule as the "urban" rule (50).
Common Enemy Rule—
A second rule applied in many states to cases involving obstruction of
the flow of surface waters is the "common enemy" rule, which originated in
Massachusetts. Under this view each landowner is entitled to regard surface
water as his enemy, and might use any means available to prevent surface
water from reaching his land, and to reduce his harm to a minimum without
regard for the possible effects on his neighbor (51). Thus, the lower land-
owner may bui^d dikes so that the surface water will remain on the higher
landowner's land (52), or may channel the water across his land for dis-
charge onto the lands of others (53). The upper landowner, in turn, may
build better ditches so that the water leaves his land as soon as possible.
This doctrine, like the civil law doctrine, has not been applied quite
so literally in any state. As has been noted, many states have adopted the
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enemy rule In urban areas „ because courts feel that development of
urban land Is to be expected by landowners, while preserving the civil 1®??
rule in rural areas (54). Alsos some states following the common enemy
doctrine apply it only to surface waters such as rain and melting snow. In
fchese states the lower lands remain under a natural servitude to receive
other surface waters of higher lands that flow along natural depressions on
the surface of the ground (55).
Other limitations occasionally applied in common enemy jurisdictions
are: (1) cases allowing for recovery of damages where a landowner causes
surface waters to be discharged with exceptional volume and force onto the
lower land (56)5 (2) cases imposing a restriction that the constructing
landowner must use due care and not unnecessarily or negligently injure
another landowner's property (57); and (3) in close factual situations, cases
In which courts hold a particular natural depression constitutes a "natural
watercourse" rather than "surface water" (58).
Reasonable Use Rule--
The third major rules applied by an increasing number of states, is the
"reasonable use" rule, which has been adapted from the law of natural water-
courses,, The same issue of what uses are and are not reasonable is pre-
sented as in natural watercourse cases, but once the particular use is said
to be reasonable, it is then held in the surface water cases that the land-
owner cannot be held liable for damages caused by drainage of surface water
in the absence of malice or negligence (59). This rule most clearly facil-
itates commercial development, and may gradually be developing into the most
favored of the possible surface water rules.
Exemplifying this trend is the recent Wisconsin decision, State v,
Deetz (60). Land developers had purchased a large area of land on a bluff
overlooking Lake Wisconsin, and were platting and developing a residential
area on the bluff» The development disturbed the topsoil on the bluff, which
had previously been used as pasture land, and caused a significant increase
in erosion and runoff. As a result of the project a sand delta of over
6,000 square feet formed in the lake, impeding fishing, boating, and swim-
ming in the area,, The state sued to abate a public nuisance and to prevent
an unlawful obstruction of navigable waters. The trial judge dismissed the
complaint, concluding that the statutes prohibiting unlawful obstruction
of navigable waters were irrelevant in the case because the silt that filled
In part of the lake was not "deposited" by the developers, but rather
resulted from the flow of surface water from the development. This, accord-
ing to the trial judge, was not a compensable wrong because the damage had
been done as part of the property owner's legally recognized right to fight
"common enemy," surface waters (61).
On appeal, the Wisconsin Supreme Court reversed the trial judge's
decision. Conceding that the common enemy rule was of long standing In
Wisconsin, the court noted that In recent years at least 13 states had
adopted soma, form of a reasonable use rule, either In preference to or as
an adjunct of either the civil law rule or the common enemy rule (62).
While the court recognised that the common enemy rule "...apparently served
the temporary purposes of society well in the days of burgeoning national
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expansion of mid-nineteenth and early twentieth centuries," it concluded that
"[T]he concept that a (sic) owner of real property can, in all cases, do as
he ple'ases with his property is no longer in harmony with the realities of
our society" (63). The court therefore adopted the reasonable use rule.
Implications for Land Application Systems
The law of surface waters in each riparian state makes no distinction
between the several different types of land application systems. In most
states, the law is primarily concerned with the right of one landowner to
discharge surface waters across the land of another. References to the type
of problems presented by land application systems are sparse.-
Any of the several types of land application systems will have either or
both of two main effects on the natural flow of surface waters in the area of
the application site.
1. After the treated effluent is applied to the site for irrigation
purposes, trace contaminants may remain which may then be carried
off the site with surface waters, such as precipitation, and which
may cause the pollution of those surface waters when they cross onto
other lands.
2. If, on the other hand, precautions are taken to retain trace pollu-
tants after application within the perimeter of the application site,
surface waters, such as precipitation, will also be retained at the
application site, and will not flow across adjoining lands as they
had prior to institution of the land application system.
The law has implications for land application systems in both of these
situations. Although the law is not unfavorable in either situation, the
implications are more favorable in riparian states in the second situation,
when both pollutants and diffused surface waters are retained at the appli-
cation site, than in the first situation, when both are dispersed to adjoin-
ing lands.
In the first Instance—trace pollution of surface waters crossing the
lands of another person—many riparian states have no law directly on point.
The surface water cases are primarily concerned with the issue of an upper
landowner creating a discharge that did not previously exist, usually by
building on or paving his property, and not with the issue of adding pollu-
tants to an already existing surface water flow.
Those jurisdictions that have cases in point indicate that liability for
pollution of surface waters will be governed by the same principles control-
ling liability for pollution of natural watercourses. In other jurisdictions
the issue is not'quite so clear. If the most restrictive of the competing
rules, the civil law view of preserving the natural state of affairs, were
applied literally in the pollution context, it would mean that every instance
of trace pollution would be enjoinable, as an interference with the natural
flow. , In no riparian state, however, is the rule so applied. Even those
states which adhere to a relatively pure civil law rule for issues involving
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dispersal of surface waters indicate that pollution of those waters is
governed by the analysis applicable to pollution of natural watercourses.
This will usually be a rule of "reasonable use," even in states classified
as "civil law".or "common enemy" jurisdictions for other purposes. That is,
pollution for ho valid purpose might be unlawful, but pollution in connec-
tion with an otherwise reasonable use might be lawful. Since, as we have
established with regard to natural watercourses, land application systems
are reasonable uses, it is very unlikely that a land application system
would be prevented from operating because of trace pollution of surface
waters. The system operators might have to pay for damages caused to adjoin-
ing land owners, but the possibility of such liability is even less likely in
the "surface water" category than it is in the "natural watercourse".cate-
gory. This is because, in addition to the requirements of proof previously
discussed: (1) the potential claimants for harm to surface water are almost
always limited to the immediately adjoining landowners, rather than includ-
ing all downstream owners as in the natural watercourse category; (2) the
right to use surface water is not a "property" right as is the right to use
the water of a natural watercourse; and (3) since less gainful use is gener-
ally made of surface water, it is much more difficult for a claimant to prove
the loss of a specific use and consequently, a decline in the market value
of his land.
Turning to the second possibility—that is, if the system collects both
surface waters and trace pollutants on its property—there is no possibility
of liability in riparian states for interference with the flow of surface
waters. It is clear that, as the lower landowner has no "property" right
to the surface waters, he cannot insist on their continued flow. The upper
landowner—in this case the land application system—can with impunity
collect all surface water on its property.
In conclusion, when creating land application systems, consideration
should be given to prevailing surface water patterns, including topographical
studies, precise locations where surface waters are likely to flow, locations
of springs, water supply wells and buildings on adjoining lands, and speci-
fications of any adjoining land uses that might be harmed by either the '
interruption of surface water flow or the addition of trace pollutants.
It must also be mentioned that several states have regulations designed
to protect surface waters from possible pollution, which regulations will
control various aspects of land application (3, 5-6). Some of these regula-
tions will be specified in Volume II of this report. It should be noted,
however, that the subjects most frequently covered by these regulations, as i
they pertain to surface waters, include restrictions on the allowable degree
of spray field grade, requirements for specific buffer zones around appli-
catipn sites, requirements for dikes or ditches around spray fields to keep ,
discharges within the system's perimeter, and specifications relating to
the types of soils on which wastewater application can be undertaken and
the vegetative cover that can be used.
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LAW OF GROUNDWATER
Description
Groundwater—or percolating water—is water beneath the surface of the
earth 'that does not flow in a well-defined channel and is not confined to a
well-defined bed. Underground water that is in a channel or bed will be
treated as a watercourse or lake, and will be subject to the same rules that
are applicable to surface streams (64). It is often difficult to determine
whether underground water is confined to a particular bed or channel; con-
sequently, almost all riparian states presume that underground water is
percolating water until the contrary is proved (65). Also, the general
category of groundwater is itself subdivided into several different types of
waters, each with different physical characteristics that occasionally become
important in a particular case. These subcategories include artesian waters,
underground lakes or pools, aquifers having either a high or low rate of
recharge, and waters which ooze or filter through the soil and whose course
is otherwise unknown.
Absolute Ownership Rule—
The common law rule regarding percolating water was one of absolute
ownership. The rule stemmed from the famous English case of Acton v,
Blundell (66) , in which one landowner, by operating coal pits upon his land,
dried up his neighbor's well. The court held for the coal miner, stating
that the appropriate legal theory:
...gives to the owner of the soil all that lies beneath his sur-
face; that the land immediately below is his property, whether
it is solid rock, or porous ground, or venous earth, or part
soil, part water; that the person who owns the surface may dig
therein, and apply all that is there found to his own purposes
at his free will and pleasure; and that if in the exercise of
such right, he intercepts or draws off the water collected from
underground springs in his neighbor's well, the inconvenience
to his neighbor falls within the description of daranum absque
injuria, which cannot become the ground of any action. (67)
Groundwater was considered to be simply part of the land, with the land-
owner having a proprietary interest in them. He was not restricted in the
withdrawal of percolating water located under his land even if the withdrawal'
caused the drainage of waters from adjacent lands, with consequent injury to
other landowners. As a logical consequence of this theory, any surface owner
of land above the percolating water could take unlimited quantities of the(
water for such use as he desired, without regard for the perhaps contra-
dictory desires of other surface owners. Also, this right, being a property
right, could not be destroyed or substantially modified by legislation unless
the landowner was awarded just compensation for it.
At one time, more than half of the states followed this doctrine of
almost unrestricted privilege. While it is declining, it is still found in
some states east of the Mississippi River where the recharge rates of sub-
surface aquifers are high and where wasteful use of water has been, until
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recently, of little concern. Most of the states that have followed this
doctrine have at one time or another qualified the rule by holding that it
was inapplicable where the water was taken maliciously, or where the water
was wasted or otherwise not used for a beneficial purpose (68). A few
states also modified the rule by holding that there could be liability for
negligently polluting the source of another landowner's supply of water (69).
Reasonable Use Rule—
While the common law rule was applied in most of the early decisions
and may still be the law in about ten jurisdictions (70), and increasing
number of Eastern States are applying a rule of reasonable use to percolating
waters and are holding that the right of the surface landowner does not in-
clude the right to make an unreasonable use of percolating water to the
detriment of other landowners (71). As in other areas of water law, there is
no uniformity regarding what does or does not constitute a reasonable use.
Some decisions hold that the landowner may use all of the percolating water if
such use is reasonably necessary for the beneficial enjoyment of his land,
even though this may deprive other landowners of sufficient water for the
beneficial use of their land (72). Other cases reject this notion of an
absolute right, and hold that the right has to be shared on a correlative
basis.
A further distinction must be drawn in reasonable use jurisdictions
between the use of percolating water and the pollution of such water. A use
which merely interferes with the flow, if it results from a reasonable use of
the land, such as mining or irrigation, and if it is conducted without
negligence, is not an actionable wrong even if the interference with flow
causes damage to adjoining landowners. This is true in common law juris-
dictions following the absolute ownership rule (73), in states following the
rule of reasonable use (74), and even in Western States following the prior
appropriation doctrine (75).
But where the use causes pollution of percolating waters, there is a
split of authority. The prevailing view is that the landowner causing
pollution can be held liable only on proof of fault on his part either
because he made an unreasonable use of his land, or because he made a reason-
able use but acted in a negligent manner. A few cases, however, apply what
amounts to liability without fault, holding that a landowner causing pollu- •
tion of percolating waters may be liable for damages resulting from the
pollution even though the use was reasonable and conducted without negligence.
In Bergey v. Minneapolis Gaslight Co. (76) the company stored large quanti-
ties of crude petroleum on its land, which escaped, seeped into the ground-
water supply and polluted the adjoining landowner's well. The court held the
company liable for the damages caused by the nuisance without proof of any
negligence on it's part, reasoning that one who stores a hazardous sub-
stance on his land is liable if the harm was the "natural and probable con-
sequence" of his acts. The court further held that the neighbor's recovery
was not limited to a decline in rental value of the property, but could also
include damages for any actual inconvenience and physical discomfort which
materially impaired the enjoyment and occupancy of his home.
In contrast is the leading Rhode Island decision. Rose v. Socony-Vacuum'
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Corp. (77). A farmer sued on a nuisance theory because the nearby oil re-
finery discharged quantities of petroleum and waste substances into settling
basins on its land, from which they percolated into the groundwater, pollut-
ing the farmer's well and stream and killing many of his hogs and chickens.
The plaintiff based his cause of action on a theory adopted in several
English cases that a person bringing a deleterious substance on his land
keeps it at his peril, and is liable for all damage which is the natural
consequence o'f its escape. The court rejected this theory, thinking it too
broad, since anything brought onto land might escape and injure someone. But
the court also noted that the cases establishing a landowner's "absolute"
right to appropriate underground waters were not applicable either, since the
question was not appropriation of water by the oil refinery, but pollution
caused by the use to which it put its land. After extensive analysis of
cases in several states, the court found that the jurisdictions holding that
there was liability in the absence of negligence were states in which the
predominating economic interest was agricultural; and it concluded that where
the refinery was located in the heart of an industrial region, producing a
"necessity of life," as a matter of policy there would be no liability in the
absence of negligence.
Implication for Land Application Systems
The law of groundwater of most riparian states does not distinguish
between the different types of land application systems. Instead, the law
is primarily concerned with landowners' competing rights to use of such
waters, and secondarily with the consequences of pollution or corruption of
such waters.
Any of the major types of land application systems could have the
following possible effects on groundwater supplies:
1. After application of treated effluent at the application site, trace
contaminants may remain which may then seep into underlying ground-
water supplies and pollute those supplies.
2. After application of treated effluent at the application site, re-
maining liquids, whether burdened with trace contaminants or not,
may seep into underlying groundwater supplies and may raise the
water table of the particular groundwater supply. This added water
could be beneficial to users of the groundwater supply, but in some
circumstances it could interfere with surface drainage of other
lands.
With regard to the possibility of trace contaminants reaching ground-
water supplies, the law of most riparian jurisdictions has reasonably favor-
able implications for establishment of land application systems. Although
the amount and strength of contaminants reaching a groundwater supply in a
given situation will vary with the application method used, the soil charac-
ter ist^cs, the depth of the groundwater supply, and the care with which the
system operators have prevented the drainage of contaminants into natural
watercourses or surface waters, the basic principles of state water law and
their implications, will remain the same.
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In those states which apply the reasonable use rule to groundwater,
legal analysis will be similar to the principles applicable to a claim of
pollution of a natural watercourse. As in the case of an action to protect
riparian rights, only affected landowners could sue, not members of the
general public. The fact that citizen suits by persons other than land-
owners are possible under Federal law does not apply to state water law.
Those landowners who chose to sue would have to show that the system polluted
a groundwater supply, that the polluted waters they drew harmed their land,
and the specific decline in market value of the land. Although the same
remedies are available as in the natural watercourse area, again an injunction
is unlikely to be granted against a reasonable use, and money damages will
be difficult to prove and will, in any event, be limited to a decline in
market value.
Liability is even less likely in those states which apply some .version of
the absolute ownership rule, as there will not be a cause of action for pollu-
tion in the absence of malice or negligence. In a few states there may be
no liability even if negligence is proven. At the other extreme there are
also a few states—in particular Minnesota and North Carolina—in which lia-
bility for pollution is imposed even in the absence of any negligence or other
fault by the polluter. Thus, there are several positions regarding 'pollution
of groundwater that might be taken by a riparian state, and as a result it is
difficult to generalize about the "typical" riparian state's view on this
issue. Listed in the order of descending possibility of liability, the
various legal positions are as follows:
1. Strict liability for harm caused by pollution, even if there is no
negligence;
2. Reasonable use rule applicable to questions of pollution as well as
to questions of use of groundwater;
3. Absolute ownership rule of no liability, qualified to allow liability
if either malice or negligence is proven;
4. Absolute ownership rule of no liability, qualified to allow liability
only if malice is proven; and ,
5. Absolute ownership rule of no liability.
The majority of riparian states will be within categories (2) and (3),'
above, although there is at least one riparian state in each category, with
Minnesota and North Carolina at the extreme of liability even without fault,
and Vermont at the opposite extreme of no liability whatever. i
If the legal question presented is not one of pollution, but of ground-
water recharge from an application site raising the water level of the ground-
water, the complaining landowner will have an even more difficult time in
attempting to sue the system's operators. If there is no probable negligence
in the operation of the system, and no intentional harm being done, there are
no cases allowing any recovery by such a landowner, even in those states
applying the "strict liability" rule to cases involving pollution.
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Thus, in most riparian states the system operators could be found liable
if the application system polluted groundwater because of negligence, such as
an instance of careless application of faulty equipment, and could not be
found liable for merely raising the water level in the absence of pollution.
In any case, in establishing land application systems, consideration should
be given to the nature and exact location of any groundwater supplies in the
area, including the depth of the water table, the usual direction of
groundwater flow, and the uses customarily made of such water in the surround-
ing area.
It should be noted that several states have specific regulations design-
ed to protect groundwater supplies and that control various aspects of land
application. Some of these regulations will be specified in Volume II of
this report. The topics most frequently covered by state regulations re-
lating 'to groundwater include limiting irrigation fields to sites with a
specified maximum elevation of groundwater; controlling specific aspects of
operation such as rate of application, grade of spray fields, and alternate
distribution of effluent; and requiring groundwater monitoring iii the area
of the system for parameters such as organic nitrogen, ammonia nitrogen,
nitrite and nitrate nitrogen, chlorides, sulfates., dissolved solids, alkalin-
ity, hardness, and pH.
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SECTION 4
APPROPRIATION STATES
APPROPRIATION DOCTRINE
Description
It is much more difficult tt> undertake a general discussion of the appro-
priation theory of water law and its impact on land application systems, than
it is to undertake a similar discussion of the riparian theory. This addi-
tional difficulty is caused by the different origins of the two systems. The
riparian system, as we have seen, was of common law origin. Although almost
all riparian states have created water pollution codes in recent years, these
codes coexist with, rather than supplant, the states' pre-existing system of
water law. Consequently, a general discussion of the law in the 31 riparian
theory states is possible, with occasional warnings that a few pertinent
issues must be discussed on a state by state basis in the context of each
state's statutes or administrative codes.
The appropriation theory states, however, have no such common basis for
their water law. About all they share in common is a rejection of the
riparian theory as being unsuitable to their usually arid condition. Most
of the water law development in these 17 contiguous Western States and
Alaska has been by statutes and supplementary administrative codes. Even
though the t,ypes of statutes can be roughly grouped for some purposes, in
many instances there is so much variation on a particular point that it is
impossible to theorize about what an appropriation theory state, in general,
would do in a particular case.
The doctrine of appropriation has been stated as follows:
Under this doctrine he who is first in time is first in right,
so long as he continues to apply the water to a beneficial use,
subsequent appropriators may not deprive him of the rights his
appropriation gives him, by diminishing the quantity or deterior-
ating the quality of the water. (78)
Thus the right to use water Inured to the person who used it first. Whereas
a riparian landowner in a riparian theory state had a right to use the water
as part of his ownership of the land, a similar landowner in an appropriation
theory state did not necessarily have such a right. His right to use water
depended not on his title to land, but on the other uses already being made
of the water at the time he decided to use the water.
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Conversely, a person who was not a riparian owner could acquire no right
to the water in a riparian theory state; hut he could acquire a right through
actual use of the water in an appropriation theory state. What was important
in the Western States was use, not title to land.
Although the fundamental principle of "first in time, first in right"
remains a salient part of the appropriation theory, it is no longer the sole
criterion used by the Western States in establishing and recognizing the
valid acquisition of an appropriative right in water. Constitutional and
statutory provisions of the appropriation theory states have modified, to
varying degrees, this fundamental principle of priority by establishing
permit requirements and preferences in the use of appropriated water.
In contrast to the theory of riparian rights, which does not place a
specific quantity limit on the amount of water a riparian may use, the
doctrine of appropriation refers to a specific quantity of water predeter-
mined by applicable statutorially defined administrative procedures, which
in all cases are concerned with the actual, use made of the water by the
prospective appropriator. Use of water under the two theories may be
explained as follows:
One of the distinctions between the two doctrines is that appro-
priation contemplates a tenancy in severalty and riparian a tenancy
in common. Thus, the appropriative right excludes the idea of
equality among appropriators, and contemplates the use of a
definite, certain, and fixed quantity of water. On the other
hand, the riparian right is correlated with a similar right of
every other owner of land riparian to the same stream and in the
nature of things contemplates the right to use a variable quantity
of water. (79)
In respect to the concept of "priority" in appropriation, a majority of
the Western States fix seniority by requiring the appropriator to apply
"...to a designated state administrative officer for a permit to appro-
priate; and if a permit is granted, it is confirmed by a certificate of right
issued when he completes his diversion with the diligence required by the
terms of the permit" (80). Only two states—Colorado and Montana—do not
use a general permit system for the acquiring of an appropriative right in
water:
[In these] jurisdictions the right to appropriate is absolute,
rather than dependent upon permit, and the date of right is
determined by the first substantial act of the appropriator,
performed in good faith, which leads to the diligent construc-
" tion of1 necessary works for the application of appropriated
water to his beneficial uses. (80)
Inherent irj the concept of an appropriative right is the requirement
that the use to which the appropriator puts the water must be beneficial.
The statutes of most of the [Western] states specifically con-
dition the right to appropriate water upon its being used for
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beneficial purposes without explicitly describing such pur-
poses. The uses which have been deemed beneficial by the
courts, include uses for irrigation, manufacturing, industrial
purposes, municipal needs, domestic consumption, and stock
watering. (81)
The requisite beneficial use, important to the initial acquisition of an
appropriative right, is also one of the controlling factors in establishing
a preference between uses. The concept of "preferred uses" is a qualification
pn the priority principle of appropriation. The value of a use is essential
to the idea of preference, "...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" (82). Basically, priority refers to the
chronological order of acquisition of the water right, while preference
relates to the character or relative value of the particular uses. The con-
cept of preference has a multiplicity of ramifications concerning the appro-
priative right and will be discussed in more detail later.
The appropriative right in water is, strictly speaking, an usufructuary
right to take the water from the stream into physical possession for the pur-
pose of putting it to beneficial use (9). Thus, private rights to ownership
do not attach to the water so long as it remains in the stream in its natural
state. '
The true reason for the rule that there can be no property
in the corpus of the water running in a stream is not that it is
dedicated to the public, but because of the fact that so long
as it continues to run there cannot be that possession of it
which is essential to ownership. (83)
History
The origin of the doctrine of prior appropriation is a topic on which
there is difference of opinion. Spanish settlers may have brought this
doctrine into the southwest area, and the Mormons established a system of
water titles in Utah that was appropriative in nature. In California,
however, the doctrine had its beginnings in the water allocation customs of
gold-seeking pioneers during the later 1840fs and early 1850's. The unique
characteristic of the doctrine of prior appropriation—the fact that the
right is not incident to the ownership of land—stemmed from the water use
demands of the mining activity and the semi-arid ambience within which such
activity occurred. Furthermore, the miners themselves were not private ,
landowners, but trespassers, "...possessing no proprietary rights in the
public land, but...searching for and extracting the gold with the implied
permission of the United States" (84).
When California became a state its supreme court, in the case of Irwin
v. Phillips (85), approved the mining convention that a "...prior appropri-
ator of watej: from a stream for the purpose of working a mining claim was
protected against later appropriations" (84). The court reasoned that since
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both parties were trespassers having no proprietary rights in the land, the
doctrine of riparian rights could not be applied to control the disposition
of rights in the 'water in contention. The extension of the appropriation
doctrine to validate the priority of other, non-mining uses quickly followed
the Irwin case (86). California's recognition of the doctrine was soon
followed by other Western States who experienced, to a lesser degree, the
same influx of mining interests.
During this early period of development in the West, mining firms and
individuals, having established judicially their seniority in appropriation,
became concerned that the opening of Federal land to private ownership would
effectively deprive them of their appropriative rights:
When the federal lands were opened to private acquisition by
the Homestead Act of 1862, this possibility became a serious
and immediate threat to the preservation of the system of
appropriative rights that had heretofore prevailed, for
riparian patentees could claim waters in the basis of land
ownership according to the settled doctrine of the common
law. (87)
In response to this concern Congress, in 1866, passed a statute related to
mining on the public domain, which provided that:
[W]henever, by priority of possession, rights to the use of
water for mining, agricultural, manufacturing or other pur-
poses, have vested and accrued, and the same are recognized
and acknowledged by the local customs, laws and decisions of
courts, the possessors and owners of such vested rights shall
be maintained and protected in the same.... (88)
The United States Supreme Court, in two subsequent cases, interpreted
the statute as adopting the doctrine of prior appropriation and establishing
pre-existing rights, rather than granting new rights in water (89). More-
over, Congress, in an Act of 1870 (90), explicitly provided that all patents
issued after that date should be subject to the rights recognized by the
Act of 1866 and that no patentee of Federal lands could defeat such rights
by assertion of a riparian claim derived from the Federal grant (91).
As the Western territories and newly emerging states gained in popula-
tion, it became increasingly evident that certain preferences in water use
allocation had to be established. Thus, in 1877, Congress enacted the
Desert Land Act (92):
[W]ith the primary objective of providing for reclamation of
desert land on the public domain in the West. It gave to any-
one entering upon this land the right to appropriate enough
water to reclaim 640 acres of arid land. In addition, it pro-
vided that all unappropriated water of nonnavigable waterways
on the public domain 'shall remain and be held free for the
appropriation and use of the public for irrigation, mining and
manufacturing purposes, subject to existing rights.' (93)
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In California-Oregon Power Co. v. Beaver Portland Cement Co. (94) the
Supreme Court clarified the import of the Desert Land Act provisions by
holding that the statute was not intended to apply only to desert lands,
but rather to all of the public domain located within the boundaries des-
cribed in the statute; and that the statute severed the water from such lands,
leaving all unappropriated nonnavigable waters free for appropriation by the
public in accordance with the established local laws of the territories and
states affected. As to the establishment of rights in water, therefore, a
United States patentee in public land had to look to the applicable local
law. This meant that in some parts of the West, the law of waters was to
become a somewhat uneasy marriage of riparian rights and appropriative rights,
while in other parts, appropriative rights occupied the whole field (95).
What developed as a consequence of this local control over acquisition of
water rights were two basic doctrinal variations of the appropriation'theory—
the California and the Colorado doctrines.
The Colorado doctrine was based on the theory that the Federal govern-
ment's proprietary rights in water were not part of the transfer of sover-
eignty to the Western States (96). Therefore, the control over all ."natural
streams" belonged to the states as property of the public. With this
authority, the Western States following this theory could determine just
what legal doctrine would apply to the acquisition of water rights:
[T]he common law doctrine of riparian rights is unsuited to semi-
arid conditions and never obtained in a State such as Colorado;
that the United States in its proprietary capacity has no rights
not accorded to private landowners, and therefore no grantee of
the United States can have riparian rights, which never existed
in the jurisdiction. (97)
The states applying the Colorado doctrine are the eight arid, interior
states—Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and
Wyoming. They all construed the Act of 1866 and subsequent Federal legis-
lation pertaining to water as declaring the existing law rather than creat-
ing a new kind of water right. In these states, therefore, rights to use
the water of natural watercourses do not generally accrue to the owners '
of riparian land solely because of their location next to the water. There
are some cases in these states that recognize some aspects of riparian
rights, such as the common law riparian rights regarding accretions (98) and
fisheries (99). Also, in these states occasional decisions imply that ripar-
ians may use water benefically by virtue of their riparian status so long as
they do not interfere with appropriative rights (100). On the whole, however,
in the Colorado doctrine states riparian rights are not a substantial part of
the state water laws.
Unlike the states that adhere to the Colorado doctrine, the states
following the California doctrine recognize a dual system of water rights,
riparian and appropriation, although the relative importance of the
riparian doctrine varies from state to state. This doctrine is applied in
the generally less arid Western States—California, Kansas, Nebraska,
North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Washington. The
theory upon which the California doctrine is based is summarized as follows:
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[T]he United States as the original owner of the public domain
possessed the common-law rights of a riparian proprietor and
the right to appropriate stream waters resulted from a grant
at first implied and later specifically stated in congressional
legislation. A grant of public riparian lands when made without
reservation, gave the patentee riparian rights which were
superior to any appropriation which was subsequently made and
inferior only to appropriations made while the land, was publicly
owned. (101)
It must be noted, however, that the similarity between the laws of the
respective California doctrine states is limited to the recognition of a dual
system of water rights; beyond that point the water laws and administrative
procedures governing the acquisition of rights in water differ markedly among
these states. California and Texas are the two states that most often recog-
nize riparian rights as important adjuncts to the appropriation doctrine
(102). Oregon and Washington, at the other extreme, while acknowledging the
historical origins of the riparian doctrine, no longer attribute much signi-
ficance to its principles in respect to state water law (103). In the other
five California doctrine states, riparian rights are still significant, but
only in certain situations. The legislatures of many of the California
doctrine states have greatly restricted the impact of the riparian doctrine
by means of their state water codes; the legislative emphasis has always
been on actual uses rather than on abstract relationships.
LAW OF NATURAL WATERCOURSES
Description
The concept of a natural watercourse is slightly broader in appropria-
tion states than it is in riparian states. Although the original judicial
definitions were similar, the requirement found in riparian states, that
water must usually flow by a regular channel having a bed with banks and
sides, has been eliminated by the water codes of a number of appropriation
states. South Dakota, for example, defines a "natural watercourse" as
follows:
If the surface water in fact uniformly or habitually flows off
over a given course, having reasonable limits as to width, the
line of its flow is, within the meaning of the law applicable
to the discharge of surface water, a watercourse. (104)
Thus, Included in the definition of natural watercourses in many appropri-
ation states are such water-related physical phenomena as arroyos, gulleys,
draws, coulees, canyons, and ravines.
It should also, be noted that the appropriation doctrine applies only to
waters, and not to any wastes added thereto. Hence there can be no liability
if a land application system diverts wastes from a natural watercourse.
Possible liability for diversion of water, however, depends on the relation
of two factors: (1) what is the priority relationship of the parties
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involved; and (2) Is a preferred use involved in the controversy?
The doctrine of prior appropriation has as one of its basic tenets the
right to appropriate for beneficial use only that quantity of water which the
appropriator "...first subjects to appropriation, except that he may also
include an additional amount to meet Increased needs which are within the
scope of his 'original intent1 if such amount is put to use within a
reasonable time" (105). Almost all the states applying the appropriation
doctrine have established standards of measurement in terms of a second-foot,
and acre-foot, or a miner's inch (106). Any surplusage is subject to the
claims of junior appropriators. Clearly, then, if a diversion of water from
a stream does not effect the quantity that is the right of other appropri-
ators on the stream to draw, then there has been no. injury to these appro-
priators and no cause of action.
If, however; the diversion of water from a particular stream also
depletes the flow sufficiently enough to abridge the right in quantity of
other appropriators, then, whether or not a cause of action exists in favor
of the Injured appropriators depends on whether the diversion was by right
of preference as established by the various state water codes. Preference
involves a constitutionally or statutorily established order of beneficial
appropriations of water, such as for "...irrigation, manufacturing, indus-
trial purposes, municipal needs, domestic consumption, and stock watering"
(107). This concept leads to four basic limitations on the priority
principle:
(1) Preferences to municipalities and governmental sub-
divisions; (2) Preferences for changes to preferred uses even
when a water shortage exists; (3) Preferences between pending
applications; and (4) Preferences which are created when the
supply of water is not sufficient to satisfy all interested
parties but are not confined to any defined groups or parties. '
(108)
Thepretica}.ly, a true preference is a species of "absolute" right that ,
would allow the preferred use to be exercised without regard to other classes
of users or their priority rights and without payment of compensation. Most
Western States, however, deal with "qualified preferences," acknowledging the
need to promote certain kinds of water use development, but also requiring '
that compensation be paid to those appropriators who are affected by the
exercise of such a preferred use.
The majority of the appropriation doctrine states allow no one an un-
qualified right to appropriate water:
A general rule in the appropriation-permit states is (1)
that to be approved, an application for a permit to appropriate
water must conform to the specific requirements of the statute;
but (2) that the application must be denied (a) if there is no
unappropriated water available in the proposed source or (b) if
the granting would threaten the stability or value of pre-existing
water rights, or (c) if the proposed project appears inimical to
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the public welfare. It is also a general rule that the adminis-
trator may grant a qualified or limited right consonant with the
statutory restrictions. (109)
The passing of statutory provisions, establishing preferences -in the issuance
of water use permits for the appropriation of water stemmed from the realiza-
tion that indiscriminate appropriation of water in a predominately arid
climate would result in a dangerous imbalance, allowing non-domestic uses to
impair the appropriation of water for preserving human life*
Thus,' the resolution of the question whether a downstream appropriator
will have a cause of action against the party diverting water from the stream
depends on two interrelated factors: (1) the priority relationship of the
parties involved; and (2) the preference placed on either of the two appro-
priations. If the diversion is made pursuant to statutorily recognized pro-
cedures and is a preferred use, the individual suffering a depletion in the
amount he was authorized to draw from the stream has a right to compensation.
Obviously, if the diversion of water has priority over the downstream appro-
priator 's use, the existence of a cause of action depends on whether or not
the downstream appropriator draws water under a preferred use superior to the
upstream diversion. If such a situation exists, the downstream appropriator
has a cause of action against the diverting party for infringement of a
vested right. If it is simply a priority relationship without consideration
of preference and the diversion is senior to the lower appropriator, then no
cause of action exists.
A second major question that must be considered is whether, in a case
of pollution or contamination of a watercourse by an upstream user, a
downstream prior appropriator of this watercourse would have a cause of
action. The law in the Western States on this question is very similar to
the law stated in riparian theory jurisdictions; that is, the lower riparian >
owners have a right to receive water from the stream in "...such a state of
natural purity as to substantially fulfill the purposes for which his appro-
priation was made" (110). Early court decisions in appropriation states
dealing with pollution recognized that if a stream was going to be put to
its maximum beneficial use a certain depletion in water quality was in-
evitable. The settled law now is that the appropriator is entitled to
protection against acts that materially deteriorate the quality of the water
for the uses to which he wishes to apply it:
A prior locator cannot insist that the stream above him shall
not be used by subsequent locators or appropriators for mining
purposes, and that the water shall flow to his claim in a state
of absolute purity. While the subsequent locator will not be
permitted so to conduct his operations as to unreasonably inter-
fere with the fair enjoyment of the stream by the prior locator,
or to destroy or substantially injure the latter's superior rights
as a prior locator, nevertheless, the law recognizes the necessity
for some deterioration, which, within reasonable limits, is
damnum absque injuria. Any other rule might involve an absolute
prohibition of the use of all the water of a stream above a
prior locatpr in order to preserve the quality of a small portion
/
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taken therefrom. (Ill)
This general rule .applied both ways on the hierarchy of appropriation
priorities. The title and rights of a senior appropriator of water are not .
absolute, but are conditional in that he is obligated to so use the water
that subsequent junior locators might receive the balance of the stream free
from pollution and fit for uses to which they might desire to put it (112).
Other aspects of the cause of action for polluting water of a natural
watercourse are similar to the elements of the cause of action in riparian
states. It is generally held that the injury must be substantial before a
cause of action will lie, with the question of injury being one of fact:
What diminution of quantity, or deterioration in quality,
will constitute an invasion of the rights of the first appropriator
will depend upon the special circumstances of each case, considered
with reference to the uses to which the water is applied. A slight
deterioration in quality might render the water unfit for drink or
domestic purposes, whilest it would not sensibly impair its value
for mining or irrigation. In all controversies, therefore, between
him and parties subsequently claiming water, the question for deter-
mination is necessarily whether his use and enjoyment of the water
to the extent of his original appropriation have been impaired by
the acts of the defendant. (113)
If a substantial injury has resulted from the pollution of the stream by
a senior or junior locator, the remedies available to the party injured are
injunctive relief and/or money damages. Relevant considerations in deter-
mining just what remedy a court will give to the plaintiff are summarized by
the United States Supreme Court:
But whether, upon a petition or bill asserting that his prior
rights have been thus invaded, a court of equity will interfere
to restrain the acts of the party complained of, will depend
upon the character and extent of the injury alleged whether it
be irremediable in its nature, whether an action at law would
afford adequate remedy, whether the parties are able to respond
for damages resulting from the injury, and other considerations
which ordinarily govern a court of equity in the exercise of its
preventive process of Injunction. (114)
Consequently, injunctive relief will be refused if the plaintiff's position
will not be improved and the defendant will be harmed. In general, the
factors considered by appropriation theory states in determining what.relief
to allow are the same as are considered by riparian theory states, and will
not be repeated here.
Obviously, there is no unlimited right to pollute, and in the case where
a preferred use is causing the pollution, considerations of preference are
applied only to the type of relief granted to the injured party. It is
certain that the landowner who allows contaminants to flow into a nearby
stream will be held legally responsible to compensate those who haye legally
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recognized rights to the waters of the stream and who can prove that they
have been damaged by the pollution.
Implications for Land Application Systems
The law of most appropriation states makes no provisions for a preferred
method of 'land application of wastes. The major concern of the law governing
water use is that any proposed diversion must be made for a beneficial pur-
pose .
Any of the major types of land application systems could have either or
both of two possible effects on natural watercourses:
1. By collecting wastes which may previously have been discharged into
natural watercourses, the system will alter the pattern of flow of
the body of water into which the wastes would have been discharged
in the absence of the land application system. Basically, the
system may improve the quality of the water but decrease the flow
beneath the previous point of discharge and wastes.
2. After the wastes are collected, treated, and applied to the land
under any of the application methods, trace contaminants may remain
which may then drain into a natural watercourse. Such drainage
may occur into either the original watercourse from which the
wastes were diverted or into a different body of water. Although
the amount of remaining contaminant may vary with the type of
application method, the care with which the effluent is applied, the
characteristics of the soil and other factors, the legal principles
and their implications remain the same in any case. The result in a,
given case, however, might vary with the severity of the pollution
caused by the trace contaminants.
Vfith regard to the first effect of an application system on a water-
course, it is clear that the rules of "priority" and "preference" will have
the following Implications:
1. Since the vast majority of natural watercourses in the Western
States already have existing appropriative activity, it is clear
that a diversion system for land application on a particular
watercourse will be subject to water quantity limitation imposed
by the mere fact of the pre-existing water use right.
2. Moreover, even though the land application system will likely be
considered irrigation and thus have preference over a majority
of other uses (except domestic uses) the concept of priority will
impose implied limitations on water quantity, since compensation
will have to be made to pre-existing uses if the land application
use affects the ability of those uses to appropriate their necessary
amounts of water.
In an effort to minimize interference with other appropriative rights
and avoid liability for damages, the following steps should be taken in the
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institution and operation of a land application system:
1. In establishing sites for land application systems, consideration
should be given to the nature of the uses of the water occurring
downstream from the point of diversion. Most importantly, in arid
or semi-arid states, consideration must not only be given to the
stream on which the land application will draw, but also to any
stream to which the former is tributary. Liability to other diver-
sions not on the particular stream from which the waste system
draws, but which are on streams to which the stream in question is
tributary, can be had if the diversion causes an appreciable drop
in quality and quantity on the latter watercourse.
2. In establishing sites for land application systems, consideration
should be given to the volume of flow of the stream or river., from
which diversion will be made. The same diversion may tremendously
affect the quantity of flow on a small stream but have only a
marginal impact on the quantity of flow on a large stream. '
3. If diversion of wastes will occur from a natural watercourse care
should be taken to insure that as much of the water as possible
is either left in the water course or if removed, returned at or
near the point of original diversion.
The second way in which the law of natural watercourses intersects with
land application systems is when, after application, trace contaminants re-
main on the land and are eventually washed into a natural watercourse. Such a
result will not always occur; the nature and quantity of trace contaminants '
remaining after application will be a function of the method of application
and skill with which it is applied. If, in a particular situation, some
contaminants drained into a natural watercourse, then the following consequ-
ences may ensue.
Since an appropriator's right to use the waters of a natural watercourse
is not absolute, there can be liability for pollution of those waters. This
liability also extends to streaifo waters to which the former stream is tribu-
tary. Money damages and injunctive relief are available to the injured
parties, but it is unlikely that a "beneficial" use such as land application
of waste (irrigation) will be enjoined. However, money damages will be
assessed for any proven injury.
If an application system was being carelessly run, 'causing pollution
that could be avoided by careful operation, then, of course, ah injunction
against the careless operation might ensue. But if the system is being
carefully run, and if the only pollutants returning to natural watercourses
are those unavoidably remaining after treatment and application, then it is
unlikely that the entire application system would be enjoined from further
operation.
Generally the law in Western States concerning the quality of the water
in a natural watercourse is more liberal toward beneficial uses of water
than the law of most riparian jurisdictions. Not only are the "equitable"
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defenses, such as "laches," "balancing of the equities" and "coming to the
nuisance" as likely to be recognized in a western court as in an eastern
one, but also, the influence of the appropriation doctrine causes a greater
emphasis in favor of beneficial uses which may cause trace contamination of
the watercourse. However, any user of water could be held liable for
provable damages caused by water pollution if the amount of the discharge is
so substantial as to interfere with other uses of water. Since most western
courts have found pollution of public streams to be equivalent to the taking
of a property right, it is clear that if any substantial pollution were
caused by a land application system, which caused provable harm to a down-
stream appropriator, that harm would have to be compensated regardless of the
"priority" or "preference" relationship.
In establishing sites for land application systems, consideration should
be given to whether the desired method of application will cause a greater
residue of pollutants than would occur with a different method of wastewater
management. Consideration should also be given to whether there is a water-
course located close enough to the application site to occasionally receive
trace pollutants. If a watercourse is so located, consideration should be
, given to the nature of the uses occurring downstream, the quality and flow
of the watercourse, and whether any of the downstream uses would be harmed
by any likely trace pollutants. A few Western States require monitoring of
nearby watercourses for parameters such as pH, BOD, suspended solids, and
fecal coliform bacteria. Some of these regulations will be specified in
Volume II of this report.
LAW OF SURFACE WATERS
Description
The definition of surface waters is basically the same in appropriation
states as in riparian states. However, since appropriation states have a
broader definition of a natural watercourse, surface waters will lose its
character as such more quickly than in riparian states. Also, most Western
States presume that all waters are tributary to some stream or stream system,
with the person trying to establish their character as surface waters having
the burden of proving that fact (115).
Civil Law Rule—
The basic legal structure of surface water law in appropriation states
is similar to the structure in riparian states. The law pertaining to
attempts to alter or prevent the flow of surface water is divided into two
categories, the "civil law" rule and the "common enemy" rule. Both rules
are frequently modified by a reasonable use limitation that is often treated
as a third separate rule by riparian jurisdictions. The civil law rule has
been defined as follows:
The prevailing doctrine appears to be that when two fields
are adjacent and one is lower than the other, the owner of the
upper field1has a natural easement to have the water that falls
upon his land flow off from the same upon the field below, which
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is charged with the corresponding servitude. (116)
However, there, is*a strictly applied limitation on the upper landowner's so-
called easement; that is, he cannot in any way collect, channel, or augment
this flow so as to unduly burden the servitude in the lower landowner's
property. In other words, the .easement applies only to waters naturally, flow-
ing from the upper to the lower tract.
The seven Western States that adhere to the civil law rule—California,
Colorado, Kansas, Nevada, Oregon, South Dakota and Texas—have all modified
its import, as evidenced by the South Dakota statute which states:
Owners of land may drain the same in the general course of
natural drainage, by constructing open or covered drains,
discharging the same into any natural watercourse or into
any natural depression whereby the water will be carried
into some natural watercourse...and when such drainage is
wholly upon the owner's land he shall not be liable in damages
therefore to any person. (117)
This provision has been interpreted as allowing the owner of the upper land
tract to build canals to drain off water into a natural watercourse provided
he does not permit an accumulation of water on his property and cast the same
on the servient land in unusual or unnatural quantities.
The converse of the foregoing rule is that the servient estate cannot
bar the natural flow of surface water so as to adversely affect the dominant
estate owner's right to enjoyment of his property:
The owner of the lower, or servient, estate must receive
surface water from the upper, or dominant, estate, in its natural
flow. While the owner of such upper land has a right to drain
and dispose of surface water on his property, he may not con-
centrate such water and pour it through an artificial drain in
unusual quantities and in greater-than-normal velocity upon a
lower landowner's property. (118)
As noted, the several Western States applying the civil law rule all
recognize numerous modifications of that rule. Colorado, for example,
restricts changes in drainage conditions made by the upper landowner to those
that do not result in any more harm than was experienced by the servient
estate under "natural circumstances" (119). The most frequent modification,
however, is to engraft a "reasonable conduct" requirement on the operation
of the civil law rule:
We find the law in California, both as to urban and rural
areas, to be the traditional civil law rule which has been ac-
cepted as the basis of harmonious relations between neighboring
landowners for the past century. But no rule can be applied by
a court of justice with utter disregard for the peculiar facts
and circumstances of the parties involved. No party, whether
an upper or a lower landowner, may act arbitrarily and
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unreasonably in his relations with other landowners and still
be immunized from all liability.
It is therefore incumbent upon every person to take reason-
able care in using his property to avoid injury to adjacent
property through the flow of surface waters. Failure to exercise
reasonable care may result in liability by an upper to a lower
landowner. It is equally the duty of any person threatened
with injury to his property by the flow of surface waters to
take reasonable precautions to avoid or reduce any actual or
potential injury.
If the actions of both the upper and lower landowners
are reasonable, necessary, and generally in accord with the
foregoing then the injury must necessarily be borne by the
upper landowner who changes a natural system of drainage, in
accordance with our traditional civil law rule. (120)
The issue of reasonableness of conduct is a question of fact, including
among its considerations the harm done to others as weighed against the
actor's interest. Also relevant to the issue of reasonableness are "...the
amount of harm caused, the foreseeability of the harm which results, the
purpose of motive with which the possessor acted..." and all other pertinent
facts relating to the conduct in question (121).
The "reasonable conduct" modification is not limited in application to
the civil law rule; "reasonableness" has also been applied by various appro-
priation state courts to modify the import of the common enemy rule. As in
riparian states, the "reasonable conduct" limitation has taken on a rule
status of its. own in some cases:
...[T]he reasonable use rule differs markedly from the strict
civil law and common enemy rules, in that each possessor of
land is legally privileged to make a reasonable use thereof,
even though the flow of surface waters is altered thereby and
causes some harm to others, liability being incurred only when
, his harmful 'interference with the flow is unreasonable under
the circumstances. This rule often does not purport to lay
down any specific rights or privileges. Each case is usually
decided on its own facts in accordance with pragmatic concepts
of fairness and common sense. (122)
Common Enemy Rule—
The other major rule found in Western States is the common enemy rule.
This rule, also referred to as the "common law" rule by at least one state
(123), regards surface waters as outlaw or common enemy waters, against which
every proprietor of land may defend himself even to the consequent injury pf i
others (124). Western States following the common enemy rule include Arizona,'
New Mexico, Montana, Nebraska, North Dakota, Oklahoma, and Washington.
As in riparian jurisdictions the essence of the common enemy rule is
that the lower landowner owes no duty to the upper landowner to refrain from
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obstructing the flow upon his land; and each of them may in the improvement of
his premises, by embankments or otherwise, prevent any portion of the diffused
surface water from flowing upon his land. As is true of the civil law rule
as well, th,e modifications of the common enemy rule applied by Western States
deal primarily with recognizing a reasonable use concept;
Use of Surface Waters—
In Western States as in Eastern States, the various rules relating to
surface waters are principally concerned with what landowners can do with
unwanted surface waters. The Western States have built up a considerable
body of law to deal with the problems of drainage of such waters, but have
"...comparatively little [law] on rights to their retention and use" (125).
Thus, if an adjoining landowner asserted damages because of trace pollutants
discharged into surface waters by a land application system, the issue would
be resolved substantially the same as in riparian jurisdictions. Where the
claim, however, is that an upper landowner is diverting and using surface
waters which the lower landowner would like to receive, as in riparian states,
we are faced with a lack of authority on the precise issue. However,: where
the riparian states tend to equate such a lack of authority with the lack of
a cognizable right in the lower landowner, it is possible in the appropriation
states for a lower landowner to argue that he has a prior appropriative right
In the wanted surface waters.
In California, for instance, one case makes reference to the question of
whether or not appropriative rights can be established in surface waters,
and implledly supports the concept:
It is not perceived why surface water from rains and melt-
ing snow, which naturally drained into this ditch (though not
the subject of appropriation) to the extent to which it adds to
the quantity of water which was, received into the ditch from
Connor's Creek does not add to the value of the ditch, nor why
its loss does not cause injury. (126)
Hutchins, however, argues that riparian rights, recognized in California, may
not attach to diffused surface waters because of the limitation that such
rights attach only to land adjacent to watercourses and diffused surface
waters do not meet the requirements of a watercourse (127).
In Montana, the law is clearer, and allows for a landowner to appropriate
all the diffused surface water that falls on his property (128). Conse-
quently, a }.ower landowner has no objection if an upper landowner uses the
diffused surface water that comes on to this property. Nebraska and Oklahoma
law support the Montana holding, and in the case of Oklahoma, which also
recognizes riparian rights, it has been held that "...a lower landowner has
no riparian right to the surface water of another" (129). South Dakota is
also in accord and their supreme court summarized the state's existing law
on the right to use diffused water by stating:
No riparian rights attach to surface waters, nor does the arid
region theory of appropriation apply thereto. There is no right
on the part of a lower proprietor to have surface water flow to
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his land from upper property. A landowner is entitled to use
surface water as he pleases so long (and so long only) as it
continues in fact to come upon his premises. He may drain or
divert the same or he may capture, impound, and use it in such
fashion as he will, provided only that he does not thereby
create a nuisance or unlawfully dam back or cast the waters
upon the land of another. (130)
The general tendency, then, in the appropriation states is that the land-
owner has ownership or right of control of the diffused surface water that
occurs on his land. This result is the same that is reached in all riparian
states. The states of Utah and Texas provide the clearest exceptions to this
general trend. Under the Utah statutory amendments of 1935, "...declaring all
waters in Utah, whether above or under the ground, to be public property,
subject to all existing rights to their use, it would appear to be reason-
ably certain that the landowner has no inherent right to use diffused surface
water by virtue of his ownership of the land." (131) Texas, on the other
hand, has a statute providing that "...storm, flood or rain waters of every
river, natural stream, canyon, ravine, depression or watershed, within the
State of Texas are hereby declared to be property of the State..." and is
subject to appropriation (132). The Supreme Court of Texas has held that
landowners using such waters prior to the enactment of this statute have a
vested right therein, and that the statute does not change the character of
this right (133). That right, however, is limited only to the water on the
proprietor's land and once it enters a watercourse it becomes the property
of the state.
In summary, then, the issue of a land application system's possible lia-
bility for trace pollutants making their way into surface waters after
application will be resolved substantially the same in appropriation states •
as in riparian states. The issue of a land application system's diversion
of surface waters that would otherwise have passed on to lower lands may
or may not be resolved the same as in riparian jurisdictions. In those appro-
priation states which either do not recognize a right of prior appropriation
of surface waters, or give primacy to the landowner on whose land they fall,
the subsequent lack of judicial authority indicates that the lower landowner
has no legally recognized right to insist that the surface waters keep flow-
ing. But, in those Western States that do allow prior appropriation of sur-
face waters—most notably Utah and, to some degree, Texas—then it is possible
that a lower landowner might have established a prior appropriative right
before upland diversion for on-land application began. Resolution of such
an issue would then be comparable not to riparian state surface water law,
but to appropriation state natural watercourse law.
The law of surface waters in Western States can best be summarized as
follows:
1. As to diversion of tributary flows of surface waters, the principles
of prior appropriation developed in the natural watercourse context
will apply. i
2. As to diversion of non-tributary flows of surface waters, occasional
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statutes such as Colorado's Livestock Water Tank Act (134) mandate
concern for other uses of such waters, even though such flows are
not historically subject to the prior appropriation doctrine. Unlike
the situation that exists in riparian states, in some Western States
a landowner's right to use surface waters crossing his land is not
absolute. Therefore, in establishing a land application system, the
same basic considerations discussed in the natural watercourse
section will be appropriate. -
i «
3. Questions of pollution of surface waters, whether tributary or non-
tributary, are resolved in the same manner in Western States as are
issues of pollution of natural watercourses. Even in non-tributary
situations, damages may be assessed for adversely affecting other
property owners and water uses. Therefore, the suggestions pertain-
ing to possible trace pollution of natural watercourses in Western
States will be equally applicable here.
Implications for Land Application Systems
The law of surface waters in all Western States makes no distinction
between the several different types of land application systems. The case
and statutory law is primarily concerned with the right of one landowner to
control and utilize the flow of surface water across his lands and those
contiguous thereto.
Any of the several types of land application systems may have the follow-
ing effects on the natural flow of surface waters in the area of the appli-
cation site:
1. After the treated effluent is applied to the site for irrigation or
other purposes, trace contaminants may remain, which may then be
carried off the site with surface waters, such as precipitation,
and which may cause'the pollution of those surface waters when they
cross onto other lands. More important, however, is the presumption
in most appropriation states that all surface water is tributary to
a stream. With that burden added into the considerations herein,
it is important that the land application system take note of the
surrounding topography so as not to interfere with stream appro-
priators depending on local surface water run-off to maintain the
stream flow. Furthermore, steps must be taken to avoid excessive
pollution of surface water flows tributary to local streams so as
to avoid possible liability for damages to local stream appropri- ,
1 ators'.
2. If, on the other hand, precautions are taken to retain trace pollu-
tants af^er application within the perimeter of the application site,
surface waters such as precipitation also necessarily will be
retained at the application site, and will not flow across adjoining
lands as they had prior to institution of the land application
system. If containment of surface run-off is a design goal, it
must be remembered that in Western States the presumption is that all
surface flows are tributary to stream systems. The system operators
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would bear the burden of proof to establish otherwise in any parti-
cular case, in order to allow impoundment of those waters. In those
cases in which the burden is sustained, the water may be impounded
without risk of liability in all but a few appropriation states.
In both of these situations the major factor distinguishing Western law
from Eastern law is the presumption of the tributary nature of the surface
water in question. This presumption, and the overcoming of it, will limit the
extent to whic*h any land application system will be allowed to impound or
otherwise affect the flow of surface water coursing across the land chosen as
the application site.
Although most Western States have no explicit statement directed to the
pollution of surface waters, the mere fact that they are usually considered to
be tributary flows implies that any pollution thereof is actionable by appro-
priators on any particular stream affected. Thus, a land application system
is met with two barriers not present in riparian states in trying to establish
a site upon which to operate. First, the system cannot impound waters that
are tributary to any stream so as to avoid the flow of pollutants into that
stream, if the stream has previously established diversion works and the
impoundment will affect their duties. Second, even if the surface water is
proven to be non-tributary, there is still the possibility that the water is
already being used by an appropriator in those states in which surface waters
may be appropriated, and consequently pollution or diversion of that water is
actionable by the prior appropriator injured thereby.
Moreover, if the surface water finds its way into an underground stream
or adversely affects underground waters, which are also presumptively tribu-
tary, the possibility exists that the land application system could be liable
both to appropriators utilizing groundwater sources affected or to surface
stream users which are injured by the previously contaminated groundwater
finding its way into the natural stream upon which they have established their
diversion works.
In establishing land application systems, consideration should be given
to prevailing surface water patterns, including topographical studies, pre-
cise locations where surface waters are likely to flow, locations of springs,
water supply wells and buildings on adjoining lands, and specifications of
any adjoining land and stream uses that might be harmed by either the inter-
ruption of surface water flow or the addition of trace pollutants. This
initial perusal will also determine the likely direction of flow of surface
waters and whether or not such waters are tributary to natural watercourses.
Consideration must also be given to the pertinent regulations of the few
Western States which specifically regulate land application. Some of these
regulations will be specified in Volume II of this report. It should be
noted, however, that the aspects of land application pertaining to surface
water patterns that are most frequently regulated include size of buffer
zones, alternate distribution of effluent to different sections of the system,
and the nature of the vegetative cover.
The basic surface water law of the Western States is not as favorable to
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the institution of land application systems as is the surface water law in
riparian states. This is because of the narrower scope of the surface water
definition, and the possibility, in several Western States, of there being
appropriative rights in surface water. Whereas a land application system in
a riparian state can solve its surface water problems by simply detaining all
surface waters at the application site, this alternative will not always be
possible under the laws in the Western States. In some topographical situa-
tions it may be difficult to establish a land application system without
interfering with pre-existing rights in surface waters, while in other topo-
graphical situations there will be no greater problem than in riparian states.
LAW OF GROUNDWATER
Description
Statutes in the majority of the appropriation states have made all
groundwater subject to appropriation (135). Thus, in these states the law
governing watercourses applies to the use of groundwater and the legal ques-
tions with regard to groundwater will be answered substantially the same as
they were answered in the natural watercourse area. However, some appropri-
ation states still make a distinction, common in riparian states, between
water in definite underground streams and percolating waters. These states
apply their appropriation theories only to the former bodies of water, and in
these states, despite their status as appropriation states, issues pertaining
to percolating waters may be resolved substantially as they would in riparian
states.
The Western States which do not apply appropriation theory to percolat-
ing waters are:
1. Texas, and possibly New Mexico, which appear to follow the English
rule of absolute ownership (136);
2. Arizona, Nebraska, Washington, and Wyoming, which follow the rule of
reasonable use (137); ,
3. California, which is unique in applying a rule of "correlative
rights," discussed later in this report; and
4. Hawaii, which has recognized a distinction between groundwater flow-
ing in definite channels and percolating waters, but only applies
limited aspects of the appropriation doctrine to groundwater in
channels, and has not stated which rule it would apply to percolat-
ing waters (138).
All other Western States apply the appropriation theory to all under-
ground water, whether or not it is located in an underground stream.
As to waters in definite underground streams, that is water underground
in a constant stream in a known and well-defined natural channel, however
small, but reasonably ascertainable from the surface, without excavation
46
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(139), the law pertaining to watercourses is applied in all appropriation
states. But as to waters that do not conform to any particular underground
channel, such as percolating waters, the rights to. use them rest upon some
variation of any of three bases—prior appropriation, the English rule of
absolute ownership, and the American rule of reasonable use.
In the majority of appropriation states, however the appropriation
doctrine is equally applicable to percolating waters. That-is, ownership
of percolating water is in the state, and use of the water is available to
those who comply with state law relating to prior appropriation. The first
appropriator will be protected against a subsequent appropriates whose con-
duct impairs the supply of water as it existed at the time of the first appro-
priation.
In California, a special rule known as the "doctrine of correlative
rights" has been applied to percolating waters. California law relating to
natural watercourses is partly riparian in theory and partly prior appropri-
ation, and the doctrine of correlative rights was created in an effort to
attain uniformity in the state's water law. In Katz v. Walkenshaw (140), the
plaintiff was using his land for farming, including making use of the under-
lying percolating water. The defendant began pumping huge quantities of water
from wells on adjacent lands to sell for public consumption. This use, by
drying up the plaintiff's wells, lessened the agricultural value of the
plaintiff's land. The court could have enjoined the defendant's conduct under
a reasonable use theory (141), but the court, in dictum, set forth two addi-
tional fact situations: (1) where both claimants are using the water outside
the basin, and (2) where both claimants are using the water on land overlying
the basin. After doing this the court then stated that, where outside uses
were concerned, an analogy should be drawn to the appropriation doctrine,
thus protecting the first taker; but that, where overlying uses were con-
cerned, there should be proration of waters: (1) as between those transport-
ing for use beyond the overlying land where the right is only usufructuary
and priority of appropriation applies; and (2) as between an appropriator
transporting beyond the overlying land and one using the water on overlying
land. Two situations arise in the latter instance. One is where the land-
owner was using the water before the appropriator began and so the landowner's
rights are paramount to the extent of the quantity necessary for use on his
land and the appropriator may take the surplus. A second situation is where
the appropriator was using the water before the landowner's use began and
so'the landowner's rights are restricted to the quantity necessary for use.
Where two overlying landowners are competing for a limited supply of water,
both are to be given a fair and just proportion (142).
As between an appropriator who commenced his groundwater use prior to '
use by an overlying owner, it has been held in California that the overlying
owner's rights to the quantity of water necessary for use were unaffected by
the fact his use was commenced after the appropriator's use had begun (143). j
Later cases have held that the concept of priority is not a consideration in
establishing the rights between overlying users in the same groundwater
(144).
47
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The proration theory thus constitutes an application of riparian law to
percolating waters, and in effect places a quantitative limit on the rights a
user would enjoy under the reasonable use doctrine. Although it was first
stated as dictum in Katz, it has since become the law of California (145).
No other Western State, however, follows this view. A few decisions approve
it in dicta (146), but all states that have considered adopting the view have
rejected it (147). These .rejections have been based upon the substantial ad-
ministrative problems that would be involved in determining the proportionate
interests of overlying landowners, and also because states that have rejected
riparian law regarding natural watercourses would usually have no reason for
adopting what is almost a riparian theory for percolating water.
In conclusion, it is difficult to generalize about how the appropriation
theory states would resolve the issues of possible raising of groundwater
levels. In those states that hold all groundwaters to be subject to appro-
priation, the issues would be resolved as each of those states resolves
similar issues involving natural watercourses. In those states that apply
either the English rule of absolute ownership or the American rule of reason-
able use, the issues will be resolved the same as riparian theory states
would resolve them. The issues would be resolved in California by applying
the doctrine of correlative rights.
Implications for Land Application?, Systems
j|—
In none of the Western States does the law concerning groundwaters dis-
tinguish between the different types of land application systems. Instead,
the law is primarily concerned with whether or not the groundwater in question
is tributary to a natural stream, or (in the majority of Western States) sub-
ject to appropriation as a non-tributary water source.
Any of the major types of land application systems could, in certain
cases, have; the following possible effects on groundwater supplies:
1. After application of treated effluent at the application site, trace
contaminants may remain which may then seep into underlying ground-
water supplies and perhaps cause trace pollution of those supplies.
Similarly, the trace contaminants may also seep eventually into
natural watercourses to which the underlying groundwater supplies
are tributary. ' '
2. After application of treated effluent at the application site,
remaining liquids, whether burdened with trace contaminants or notj,
may seep into underlying groundwater supplies and raise the water
table of the particular groundwater supply. This added water could
be beneficial to users of the groundwater supply, but in some cir-
/ cumstances it could interfere with surface drainange of other lands.
In either of these possible situations, the implications for land appli-
cation systems of the groundwater law of the Western States will vary with the
basic rule adopted by the particular state. In the minority of Western States
that apply either the absolute ownership or the reasonable use rule to per-
colating waters, the implications are the same as in riparian states, and so
48
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will not be repeated. California probably should be included within this
group of states, as its "correlative rights" doctrine is most closely related
to the reasonable use rule. The only difference common to these Western
States, as opposed to the riparian states, is that in most of them it is
presumed that underground waters are part of or tributary to a natural water-
course until the opposite is proven, whereas in riparian states the legal .
presumption is frequently the precise opposite. Therefore, a given source
of water is somewhat more likely to be classified as part of a natural water-
course in the West.
In the majority of Western States that apply the appropriation doctrine
to all underground waters, the legal implications are different than those
pertaining to groundwaters in riparian states. They are, instead, comparable
to the natural watercourse legal structure in the appropriation states.
While this structure places land application in a strong legal position, with
numerous defenses available should any litigant allege any harm to a water
supply, there are a few differences in treatment which flows from the pre-
sumption of the tributary nature of groundwaters, which should be mentioned
briefly. ?
As noted, most Western States, whatever their basic groundwater rule,
presume that all groundwaters are tributary to natural watercourses. This
presumption can raise a number of problems in those states following the
appropriation doctrine for groundwaters. First, claims of priority will have
to be considered not only in respect to non-tributary groundwaters, but also,
under the statutes of several states (148), to local surface stream appro-
priators to which the underground water is tributary. Second, if the ground-
water becomes polluted, surface stream water users as well as groundwater
appropriators will have a cause of action against the land application
system causing the pollution. While the legal implications of such an action
are no different than that already discussed with regard to natural water-
courses, the number of possible claimants is broadened. Third, the burden of
proof in trying to establish the fact that a particular underground water
source is not a tributary of some local stream is met only by "clear and
convincing" evidence. The difficulty of meeting this burden obviously
depends on topography, soil conditions, subterranean rock structures, and
the proximity,of other natural watercourses, among other factors.
In establishing land application systems, considerations pertinent to
groundwaters would include the nature and location of any groundwater
supplies in the area, the depth of the water table (and seasonal variations), '
the usual direction of groundwater flow, and the uses generally made of such
water in the surrounding area. Several Western States have regulations
aimed at protecting groundwater supplies from possible pollution. Among the
topics regulated by particular state regulations are volume of application,
alternate distribution of effluent to different sites, and groundwater
monitoring for parameters such as organic nitrogen, ammonia nitrogen,
nitrite and nitrate nitrogen, chlorides, sulfates, dissolved solids, alkalin- '
ity, hardness, and pH. Some of these regulations will be specified in
Volume II of this report.
49
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REFERENCES
1. Pound, C. E., and R; W. Crites. Wastewater Treatment and Reuse by Land
Application - Volume I - Summary. EPA-660/2-73-006a, U.S. Environmental
Protection Agency, Washington, D. C., 1973.
\
2. Pound, C. E., and R. W. Crites. Wastewater Treatment and Reuse by Land
Application - Volume II. EPA-660/2-73-006b, U.S. Environmental
Protection Agency, Washington, D. C. , 1973. 249 pp.
3. Massey, D. T. Research Needs Related to Institutional and Legal Aspects
of Recycling Municipal Wastewater on the Land. In: Proceedings of
Research Needs Related to Recycling Urban Wastewater on Land, Institute
for Research on Land and Water Resources, The Pennsylvania State
University, University Park, Pennsylvania, 1974. pp. 49-99.
4. ' 33 U.S.C. §1281(d) (Supp. V, 1975).
5. Sullivan, R. H., M. M. Cohn, and S. S. Baxter. Survey of Facilities
Using Land Application of Wastewater. EPA-430/9-73-006, U.S.
Environmental Protection Agency, Washington, D. C., 1973. 377 pp.
6. Stevens, R. M. Green Land—Clean Streams: The Beneficial Use of
Wastewater Through Land Treatment. Center for Study of Federalism,
Temple University, Philadelphia, Pennsylvania, 1972. 330 pp.
7. Piper, A. M., and H. E. Thomas. Hydrology and Water Law: What is Their
Future Common Ground? In: Cases and Materials on Water Rights, J. H.
Beuscher, ed. Law School, University of Wisconsin, Madison, Wisconsin,
1966. pp. 1-4.
8. Collins v. Chartiers Valley Gas Co., 131 Pa. 143, 18 A. 1012 (1890).
9. Hutchins, W. A. Water Rights Laws in the Nineteen Western States -
Volume I. Miscel. Publ. No. 1206. U.S. Department of Agriculture,
Washington, D. C., 1971. 650 pp.
i
10. Blackstone, W. Commentaries on the Laws of England - Volume II, p. 18.
W. D. Lewis, ed., Rees Welsh & Co., Philadelphia, Pennsylvania, 1897.
11. Robertson v. Arnold, 182 Ga. 664, 186 S.E. 806 (1936); Columbus & H.
Coal & Iron Co. v. Tucker, 48 Ohio St. 41, 26 N.E. 630 (1891). »
12. Embreyi v. Owen, 6 Ex. 353, 155 Eng. Rep. 579 (1851); Wood v. Waud,
50
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3 Ex. 748, 154 Eng. Rep. 1097 (1849).
13. Roberts v. Martin, 72 W. Va. 92, 77 S.E. 535 (1913).
14. Spence v. McDonough, 77 Iowa 460, 42 N.W. 371 (1889); People v. Hulbert,
131 Mich. 156, 91 N.W. 211 (1902).
15. Heise v. Schultz, 167 Kan. 34, 204 P.2d 706 (1949); McNamara v. Taft, 196
Mass. 597, 83 N.E. 310 (1907); Monroe Carp Pond Co. v. River Raisin
Paper Co., 240 Mich. 279, 215 N.W. 325 (1927); Petraborg v. Zontelli,
217 Minn. 536, 15 N.W.2d 174 (1944).
16. City of Lakeland v. State, 143 Fla. 761, 197 So. 470 (1940); Boomer v.
Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970); Quinn v.
American'Spiral Spring Manufacturing Co., 293 Pa. 154, 141 A. 855 (1928);
Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 769, 83 S.W.
658 (1904).
17,, Gillett v. Johnson, 30 Conn. 180 (1861); Clark v. Allaman, 71 Kan. 206,
80 P. 571 (1905); Elliot v. Fitchburg Railroad Co., 64 Mass. 191 (1852);
Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926).
18. Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78 (1889); Beck v.
Kulesza, 34 Del. 559, 156 A. 346 (1926); Dettmer v. Illinois Terminal
Railroad Co., 287 111. 513, 123 N.E. 37 (1919).
19. Hutt v. Lament's Service, Inc., 27 Wis. 2d 177, 133 N.W.2d 734 (1965).
20. Wood v. Sutcliffe, 2 Sim. (N.S.) 163, 61 Eng. Rep. 303 (1851); Weidner v.
Friedman, 126 Tenn. 677, 151 S.W. 56 (1912).
21. Sunray Oil Corp. v. Sharpe, 209 F.2d 937 (5th Cir. 1954).
22. Harden Chevrolet Co. v. Pickaway Grain Co., 92 Ohio L. Abs. 161, 194
N.E.2d 177 (C.P1. 1961).
23. Case Comment. Torts: Defense of Coming to a Nuisance. Univ. of Florida
Law Rev. 9(2): 228-230, 1956; Lawyers Cooperative Publishing Co.
American Law Reports, Annotated, Volume 167, pp. 1364-1392, 1947; Ritter '
v. Keokuk Electro-Metal Co., 248 Iowa 710, 82 N.W.2d 151 (1957).
24. Spur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz. 178,
494 P.2d 700 (1972).
25. McNichols v. J. R. Simplot Co., 74 Idaho 621, 262 P.2d 1012 (1953);
Brede v. Minnesota Crushed Stone Co., 143 Minn. 374, 173 N.W. 895
(1919); Campbell v. Seamen, 63 N.Y.,568 (1876); Prosser, W. L. Law of
Torts, §91. West Publishing Co., St. Paul, Minnesota, 4th ed. 1971.
26. McClintock, H. L. Discretion to Deny Injunctions Against Trespass and
Nuisance. Univ. of Minnesota Law Rev., 12(6): 565-583 (1928).
51
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27. Frost v. City of Los Angeles, 181 Cal. 22, 183 P. 342 (1919); Haack v.
Lindsay Light & Chemical Co., 393 111. 367, 66 N.E.2d 391 (1946).
28. Clifton Iron Co. v. Dye, 87 Ala. 408, 6 So. 192 (1889); City of Lakeland
v. State, 143 Fla. 761, 197 So. 470 (1940); Roy v. Chevrolet Motor Car
Co., 262 Mich. 663, 247 N.W. 774 (1933); Quinn v. American Spiral Spring
Manufacturing Co., 293 Pa. 152, 141 A. 855 (1928); Storey v. Central Hide
& Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950); Bartell v. Ridge-
field Lumber Co., 131 Wash. 183, 229 P. 306 (1924).
29. 113 Tenn. 769, 83 S.W. 658 (1904).
30. Bommer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970).
31. 45 Wis. 2d 164, 172 N.W.2d 647 (1969).
32. Straight v. Hover, 70 Ohio St. 263, 87 N.E. 174 (1909); City of New
Cordell v. Lowe, 289 P.2d 103 (Okla. 1963).
33. Arvidson v. Reynolds Metal Co., 125 F. Supp. 481 (W.D. Wash. 1954),
aff'd, 236 F.2d 224 (9th Cir. 1956), cert, denied, 352 U.S. 908 (1957);
Krier, J. E. Environmental Litigation and the Burden of Proof. In: Law
and the Environment, M. F. Baldwin and J. K. Page, Jr., eds. Walker
Publishing Co., Inc., New York, New York, 1970. pp. 105-122.
34. Swift v. Broyles, 115 Ga. 885, 42 S.E. 277 (1902); Gay v. Perry, 205 Ky.
38, 265 S.W. 437 (1924); Webb v. Virginia-Carolina Chemical Co., 170
N.C. 662, 87 S.E. 633 (1916).
35. Southern Ice & Utilities Co. v. Bryan, 187 Ark. 186, 58 S.W.2d 920
(1933); Kentucky-Ohio Gas Co. v. Bowling, 264 Ky. 470, 95 S.W.2d 1
(1936); City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57 (1931);
Haveman v. Beulow, 30 Wash. 2d 185, 217 P.2d 313 (1950).
36. 5 Ohio App. 84, 24 Ohio Cir. Ct< Rep. 369, 26 Ohio C. Dec. 362 (1915).
37. Standard Hocking Coal Co. v. Koontz, 5 Ohio App. 84, 88 (1915).
38. 421 P.2d 957 (Ore. 1966).
39. McElwain v. Georgia-Pacific Corp., 421 P.2d 957, 958 (Ore. 1966).
40. Ellis, H. H., J. H. Beuscher, C. D. Howard, and J. P. DeBraal. Water-
Use Law and Administration in Wisconsin, §8.08. Department of Extension
Law, University Extension, University of Wisconsin, Madison, Wisconsin,
1970.
41. Gray v. McWilliams, 98 Cal. 157, 32 P. 976 (1893); Robinson v. Belanger,
332-Mich. 657, 52 N.W.2d 538 (1952); West v. Taylor, 16 Ore. 165, 13 P.
665 (1888).
42. Rinzler v. Folsom, 209 Ga. 549, 74 S.E.2d 661 (1953); Steed v. Kimbrough,
52
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197 Miss. 530, 19 So. 2d 925 (1944); Wiseman v. Tomrlch Construction Co.,
250 N.C. 521, 109 S.E.2d 248 (1959); Note. Liability for Diversion of
Surface Water. Ohio State Univ. Law J., 22 (2):241 (1961).
43. Gott v. Franklin, 307 Ky. 466, 211 S.W. 2d 680 (1948); Allen v. Morris
Building Co., 360 Mich. 214, 103 N.W.2d 491 (1960); Palmer v. Massengill,
214 Miss. 379, 58 So. 2d 918 (1952); Konrad v. State, 4 Wis. 2d 532,
91 N.W.2d 203 (1958).
44. Little, Brown & Co. American Law of Property, Volume VI-A, §28.63,
p. 190,'note 10. Boston, Massachusetts, 1954.
45. Burby, W. E. Handbook of the Law of Real Property, §21. West Publishing
Co., St. Paul, Minnesota, 3rd ed. 1965).
46. Stouder v. Dashner, 242 Iowa 1340, 49 N.W. 2d 737 (1946).
47. Manteufel v. Wetzel, 133 Wis. 619, 114 N.W. 91 (1907).
48. Johannsen v. Otto, 255 Iowa 976, 282 N.W. 344 (1938).
49. Wellman v. Kelley, 197 Ore. 553, 252 P.2d 816 (1953).
50. Hall v. Rising, 141 Ala. 431, 37 So. 586 (1904); Reilly v. Stephenson,
222 Pa. 252, 70 A. 1097 (1908).
51. Bates v. Smith, 100 Mass. 181 (1968); Barkley v. Wilcox, 86 N.Y. 140
(1881); Laur.v. City of Milwaukee, 1 Wis. 2d 558, 85 N.W.2d 349 (1957).
52. Watters v. National Drive-in, 266 Wis. 432, 63 N.W.2d 709 (1954).
53. Stacy v. Walker, 222 Ark. 819, 262 S.W.2d 880 (1953).
54. Dyer v. Starlhut, 147 Kan. 767, 78 P.2d 900 (1938).
55. Nichol v. Yocum, 173 Neb. 298, 113 N.W.2d 195 (1962); Riechert v.
Northern Pacific Railway Co., 39 N.D. 114, 167 N.W. 127 (1918).
56. Clark v. City of Springfield, 241 S.W.2d 100 (Mo. 1951).
57. Central Indiana Railway Co. v. Mikesell, 221 N.E.2d 192 (Ind. App. 1966);
Turnell v. Mahlin, 171 Neb. 513, 106 N.W.2d 693 (1960).
58. Leaders v. Sarpy County, 134 Neb. 817, 279 N.W. 809 (1938).
I
59. Weinberg v. Northern Alaska Development Corp., 384 P.2d 450 (Alaska
1963); Enderson v. Kelehan, 266 Minn. 163, 32 N.W.2d 286 (1948);
Haskins v. Felder, 270 P.2d 960 (Okla. 1954).
60. 66 Wis. 2d 1, 224 N.W.2d 407 (1974).
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61. State v. Deetz, 66 Wis. 2d 1, 6-8, 224 N.W.2d 407, 410-411 (1974).
62. Jd., p. 14, note 3, 224 N.W.2d 407, 413-414, note 3. .
63. Id., pp. 14-15, 224 N.W.2d 407, 414.
64. Hale v. McLea, 53 Cal. 578 (1879); Willis v. City of Perry, 92 Iowa
297, 60 N.W. 727 (1894).
65. Arroyo Ditch & Water Co. v. Baldwin, 155 Cal. 280, 100 P. P.74 (1909);
Ryan v. Quinlan, 45 Mont. 521, 124 P. 512 (1912); Logan Gael Co. v.
Glasgo, 122 Ohio St. 126, 170 N.E. 874 (1930); Evans v. Clt*/ of, Seattle,
182 Wash. 150, 47 P.2d 984 (1935).
66. 12 Meesoti & Welsby 324, 152 Eng. Rep. 1223 (1843).
67. Acton v. Blundell, 12 Meeson & Welsby 324, 354, 152 Eng. Re5>. 1223,
1235 (1843). ' ;
68. St» Ainand v. Lehman, 120 Ga. 753, 47 S.E. 949 (1904); Gagtton v. French
Lick Springs Hotel Co., 163 Ind. 687, 72 N.E. 849 (1904); Barclay v.
Abraham, 121 Iowa 619, 96 N.W. 1080 (1903); Wheatley v. Bau^h, 25 Pa.
528 (1855). ;j
69. Trillingham v. Alaska Housing Authority, 109 F. Supp. 924 ( ). Alaska
1953); Pettingill v. Turo, 159 Me. 350, 193 A.2d 367 (1963) Nelson v.
C & C Plywood Corp., 465 P.2d 314 (Mont. 1970).
70. Trillingham v. Alaska Housing Authority, 109 F. Supp. 924 (f). Alaska
1953); Hartford Rayon Corp. v. Cromwell Water Co., 126 Conn, 194, 10
A.2d 587 (1940); Stoner v. Patten, 132 Ga. 178, 63 S.E. 897 (1909);
Edwards v. Haeger, 180 111. 99, 54 N.E. 176 (1899); Chase v, Silver-
stone, 62 Me. 175 (1873); Gallerini v. United States, 41 F. Supp. 293
(D. Mass. 1941); Nelson v. C & C Plywood Corp., 465 P.2d 31
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76. 60 Minn. 296, 62 N.W. 336 (1895).
77. 54 R. I. 363, 173 A. 627 (1934).
78. Joeger v. Pacific Gas & Electric Co., 207 Cal. 8, 26, 276 P. 1017, 1026
(1929).
79. Hutchins, W. A., supra note 9, p. 490.
80. American Law of Property, supra note 44, §28.58, p. 174.
i
81. Powell, R. R. The Law of Real Property, Volume 5, §735, p. 458. Matthew
Bender & Co., Inc., New York, New York, 1976.
82. Clark, R. E. Waters and Water Rights, Volume 5, §408.8, p. 94. Allen
Smith Co., Indianapolis, Indiana, 1973.
83. Palmer v. Railroad Commission of California, 167 Cal. 163, 168, 138
P. 997, 999 (1914).
84. Powell, R. 'R., supra note 81, §734, p. 442.
85. 5 Cal. 140 (1855).
86. Rupley v. Welch, 23 Cal. 452 (1863); Tartar v. Spring Creek Water &
Mining Co., 5 Cal. 395 (1855).
87. Note. Federal-State Conflicts over the Control of Western Waters.
Columbia Law Rev., 60(7): 967-998, 1960, p. 971.
88. 14 Stat. 251, 253, §9 (1866).
89. Basey v. Gallagher, 87 U.S. 670 (1874); Atchinson v. Peterson, 87 U.S.
507 (1874).
90. REV. STAT. §2340 (1875), 43 U.S.C. §661 (1958).
91. Note, supra note 87, pp. 970-972.
92. 19 Stat. 377 (1877), as amended, 43 U.S.C. §321 (1958).
93. Note, supra note 87, pp. 971-972.
94. 295 U.S. 142 (1935).
i '
95. Powell, R. R., supra note 81, §734, pp. 444-445.
96. Clark, R. E., supra note 82, §405, p. 41.
97. Hutchins, W. A. Selected Problems in the Law of Water Rights in the
West, p. 31. Miscel. Publ. No. 418. U.S. Department of Agriculture,
Washington, D. C., 1942.
55
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98. State v. Jacobs, 93 Ariz. 336, 380 P.2d 998 (1963).
99. Herrin v. Sutherland, 74 Mont. 587, 241 P. 328 (1925).
100. Hutchinson v. Watson Slough Co., 16 Idaho 484, 101 P. 1059 (1909).
101. Powell, R. R., supra note 81, §734, p. 445.
102. Clark, R. E., supra note 82, §420, p. 235.
103. Carson v. Centner, 33 Ore. 512, 52 P. 506 (1898); In re Carb Creek,
194 Wash. 634, 79 P.2d 323 (1938).
104. Johnson v. Metropolitan Life Insurance Co., 71 S.D. 155, 161, 22 N.W.2d
737, 740 (1946).
105. Powell, R. R., supra note 81, §735, p. 451.
106. NEB. REV. STAT. §46-228 (1960); N.M. STAT. ANN. §75-5-18 (1954): UTAH
CODE ANN. §73-1-2 (1968).
107. Powell, R. R., supra note 81, §735, p. 458.
108. Id., §735, pp. 458-459.
109. Hutchins, W. A., supra note 9, p. 400.
110. Hutchins, W. A. Water Rights Laws in the Nineteenth Western States -
Volume II, p. 207. Miscel. Publ. No. 1206. U.S. Department of Agri-
, culture, Washington, D. C., 1974.
111. Dripps v. Allison's Mines Co., 45 Cal. App. 95, 99, 187 P. 448, 450
(1919).
112. Suffolk Gold Mining & Miling Co. v. San Miguel Consoldiated Mining &
Milling Co., 9 Colo. App. 407, 48 P. 828 (1897).
113. Atchison v. Peterson, 87 U.S. 507, 514-515 (1874).
114. Jd., p. 515.
115. Safranek v. Town of Limon, 123 Colo. 330, 228 P.2d 975 (1951); De Haas
v. Benesck, 116 Colo. 344, 181 P.2d 453 (1947).
116. Ogburn v. Connor, 46 Cal. 346, 351 (1873).
117. S.D. COMPILED LAWS ANN. §46-20-31 (1967).
118. Hutchins, W. A., supra note 110, p. 551.
119. Hankins v. Borland, 163 Colo. 575, 431 P.2d 1007 (1967).
56
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120. Keys v. Romley, 64 Cal. 2d 396, 408-409, 412 P.2d 529, 536-537 (1966).
121. Jd., p. 410, 412 P.2d 529, 537.
122. Hutchins, W. A., supra note 110, p. 556.
123. Tillinger v. Frisble, 138 Mont. 60, 353 P.2d 645, 646-647 (1960).
124. Kelly v. Gifford, 63 Wash. 2d 221, 222, 386 P.2d 415, 416 (1963).
125. Hutchins, W. A., supra note 110, p. 542.
126. Jacob v. Lorenz, 98 Cal. 332, 339-340, 33 P. 119, 122 (1893).
127. Hutchins, W. A., supra note 110, p. 558.
128. Honey v. Beatty, 124 Mont. 41, 50, 220 P.2d 77, 82 (1950).
129. Nunn v. Osborne, 417 P.2d 571, 574 (Okla. 1966).
130. Terry v. Heppner, 59 S.D. 317, 318-319, 239 N.W. 759, 759-760 (1931).
131. Hutchins, W. A., supra note 110, p. 563; UTAH CODE ANN §73-1-1 (1968).
132. TEX. REV. CIV. STAT. ANN. art. 7467 (Vernon 1954).
133. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936).
134. COLO. REV. STAT. ANN. §§35-49-101 to -116 (1973).
135. Powell, R. R., supra note 81, §743, p. 491.
136. TEX. WATER CODE ANN. §§52.002, .004, .106, .118 (Vernon 1972); City of
Corpus Christ! v. City of Pleasanton, 154 Tex. 289, 276 S.W.2d 798
(1955); Clark, R. E. New Mexico Water Resources Law. Division of
Government Research, The University of New Mexico, Albuquerque, New
Mexico, 1964. 93 pp.
137. Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173 (1953); Olson v. City
of Wahoo, 124 Neb. 802, 248 N.W. 304 (1933); Evans v. City of Seattle,
182 Wash. 450, 47 P.2d 984 (1935); Binning v. Miller, 55 Wyo. 451, 102
P.2d 54 (1940).
138. Hutchins, W. A. The Hawaiian System of Water Rights. Board of Water
Supplies, City and County of Honolulu, Honolulu, Hawaii, 1946. 278 pp.
139. Hayes v. Adams, 109 Ore. 51, 218 P. 933 (1923).
140. 141 Cal. 116, 74 P. 766 (1903).
141. Forbell v. City of New York, 184 N.Y. 522, 58 N.E. 644 (1900).
57
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142. Katz v. Walkenshaw, 141 Cal. 116, 74 P. 766 (1903).
143. Burr v. Maclay Rancho Water Co., 154 Cal. 428, 98 P. 260 (1908).
144. Hutchins, W. A., supra note 110, p. 636.
145. City of Pasadena v. City of Alhambra, 33 Cal. 2d 908, 207 P.2d 17
(1959).
146. Safranek v. Town of Limon, 123 Colo. 330, 228 P.2d 975 (1951); Olson v.
City of Wahoo, 124 Neb. 802, 248 N.W. 304 (1933); Home v. Utah Oil
Refining Co., 59 Utah 279, 202 P. 815 (1921).
147. Hinton v. Little, 50 Idaho 317, 296 P. 582 (1931); Yeo v. Tweedy,
34 N.M. 611, 286 P. 970 (1929); Evans v. City of Seattle, 182 Wash.
450, 47 P.2d 984 (1935).
148. COLO. REV. STAT. ANN. §37-90-102 (1973).
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GLOSSARY
appropriation: The doctrine applied in the 17 contiguous Western States
and Alaska, under which one's right to use water is not based on
ownership of land on the bank of a watercourse, but on a prior
appropriation of the water. To constitute a valid appropriation
there must be an intent to apply water to some beneficial use, a
diversion of the water from the natural channel, and an actual
application of the water within a reasonable time to a beneficial
purpose.
diffused surface water: In most states, this term is used interchangeably
with "surface water" and has no independent meaning. The cases of
a few states use the term "surface water" to encompass all waters
on the surface of the land, including waters in surface water-
courses. In these states the term "diffused surface water" carries
the meaning ascribed to "surface water."
groundwater: Water beneath the surface of the earth that does not flow
in a well-defined channel and is not confined to a well-defined bed.
natural flow: A branch of the riparian theory of rights to water in
natural watercourses. Under the natural flow theory, a riparian
landowner has the right to the water of the watercourse in its
natural condition, undlminished in quantity or quality, except
for only "natural" uses, such as domestic by upstream riparians.
The riparian landowner, in turn, may only make "natural" uses of
the water, In order to preserve it for the riparians located still
farther downstream.
natural watercourse:, In addition to the definition specified for a water-
course, a natural watercourse is a watercourse formed by the natural
flow of water as determined by the conformation of the surrounding
country, as distinguished from an "artificial" watercourse formed
by the work of man, such as a ditch or canal. Many states, how-
ever, specify that artificial waterways can acquire the status of
natural watercourses after the passage of several years, if there
has been reliance by the affected parties on the flow of the water.
percolating water: In most states this term is used interchangeably with
"groundwater" and has no independent meaning. A few states, espe-
cially in the West, use the term "groundwater" to include all water
beneath the surface of the land, including water in underground
watercourses. In these states, "percolating water" carries the
meaning ascribed to "groundwater."
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reasonable use: A branch of the riparian theory of rights to water in
natural watercourses. Under the reasonable use theory, a riparian
landowner has the right to.make reasonable beneficial use of the
water. This may include uses beyond "natural" uses, such as
irrigation or manufacture, but this right is subject to the right
of other riparians, both upstream and downstream, to also make
reasonable beneficial use of the water.
riparian rights: The rights of the owners of land on the banks of water-
courses to use the water of those watercourses. These rights exist
in the 31 Eastern States which follow the riparian doctrine. Gen-
erally, riparian rights include the use of the water for "natural"
purposes, such as bathing and domestic use, and for some "artificial"
purposes, such as irrigation, watering of livestock, and manufacture.
The scope of the permitted "artificial" purposes will depend, in a
large part, on whether the particular state applies the strict
"natural flow" or more liberal "reasonable use" theory of riparian
rights.
surface water: Water on the surface of the land that does not flow in a
well-defined channel and is not contained in a well-defined basin.
Such water ordinarily results from rainfall and melting snow as it
spreads over the earth's surface, and retains its character as
surface water until it reaches a watercourse or seeps into the
ground.
watercourse: A body of water which flows in a known and defined channel
located either on the surface of the earth or beneath the surface.
The general category includes both lakes and streams that meet the
frequently stated criteria of having a definite course or channel,
a substantial current, a definite source of supply, and an outlet
into another body of water.
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