United States
Environmental Protection
Agency
Robert S. Kerr Environmental Research EPA-600/2-78-175
Laboratory August 1978
Ada OK 74820
Research and Development
&EPA
Land Application
of Wastewater
and State Water Law
State Analyses
Volume II
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RESEARCH REPORTING SERIES
Research reports of the Office of Research and Development. U.S Environmental
Protection Agency, have been grouped into nine series These nme broad cate-
gories were established to facilitate further development and application of en-
vironmental technology Elimination of traditional grouping was consciously
planned to foster technology transfer and a maximum interface in related fields
The nine series are
1 Environmental Health Effects Research
2 Environmental Protection Technology
3 Ecological Research
4 Environmental Monitoring
5. Socioeconomic Environmental Studies
6 Scientific and Technical Assessment Reports (STAR)
7 Interagency Energy-Environment Research and Development
8 Special" Reports
9 Miscellaneous Reports
This report has been assigned to the ENVIRONMENTAL PROTECTION TECH-
NOLOGY series This series describes research performed to develop and dem-
onstrate instrumentation, equipment, and methodology to repair or prevent en-
vironmental degradation from point and non-pomt sources of pollution This work
provides the new or improved technology required for the control and treatment
of pollution sources to meet environmental quality standards
This document is available to the public through the National Technical Informa-
tion Service, Springfield. Virginia 22161.
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EPA-600/2-78-175
August 1978
LAND APPLICATION OF WASTEWATER
AND STATE WATER LAW:
STATE ANALYSES
Volume II
by
Donald W. Large
University of Wisconsin Law School
Madison, Wisconsin 53706
Contract Number EPA-IAG-D5-0799
Project Officer
Curtis C. Harlin, Jr.
Wastewater Management Branch
obert S. Kerr Environmental Research Laboratory
Ada, Oklahoma 74820
This study was conducted
in cooperation with
Economics, Statistics, and Cooperatives 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 admin-
istration 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 informa-
tion 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 man-
agement of programs including the development and demonstration of soil and
other natural systems for the treatment and management of municipal waste-
waters.
Although land application of municipal wastewaters has been practiced
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 de-
fine 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 establishes and enforce pollu-
tion control standards which are reasonable, cost effective and provide ade-
quate protection for the American public.
^&V-~
William C. Galegar Q
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 purpose of this report is to provide an in-depth analysis of the
water rights law in several states applicable to land application of waste-
water. Analyses are made in each state of the laws concerned with natural
watercourses, surface waters, and groundwater. An identification is made of
those particular aspects of the law relating to each type of water that may
influence treatment system design and operation. References will be made
throughout to the overview of water law doctrines and precautions suggested
for land application system operators to assist in avoiding liability found
in Volume I of this report, "Land Application of Wastewater and State Water
Law: An Overview." It is intended that this report, with its in-depth
analysis of state water rights laws, shall serve as an aftermath to the pre-
ceding general study.
iv
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ABSTRACT
This research project was undertaken with the overall objective of ana-
lyzing 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 application
systems to operate free from legal uncertainty.
This report was submitted in fulfillment of Contract No. EPA-IAG-D5-0799
by the Economics, Statistics, and Cooperatives Service (formerly 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 June 30, 1978.
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 Economics,
Statistics, and Cooperatives Service, U.S. Department of Agriculture.
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CONTENTS
Foreword
Preface
Abstract ^
Acknowledgments v
1. Introduction *
2. Conclusions ^
3. Riparian States 5
Arkansas 5
Florida ^
Georgia 25
Kentucky *°
Massachusetts £°
Michigan 7?
Missouri 5*
New York 5;
Ohio "
Pennsylvania 'j>
Tennessee '
Wisconsin
4. Appropriation States
Arizona
California
Colorado
Kansas
Texas
152
References "1
Glossary
vii
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ACKNOWLEDGMENTS
tioned at the University of Wisconsin Law SoS? ? Agriculture, sta-
advieor for the project. His ad™ce coordl «' ^ S6rVed as the technical
the project, review of the several drafts oflte™ °( tb" T 1OUS Sta*eS °f
the final report for publication proved invaluable?"0 ' Md pre>arati°n °f
lroSc^fficfr^r^heTsXr6"81 ReSea"h
A. ihristensen! Natural L^ur nvl™nfflental Protection
^^^
nr^rdrafts-of^r^ortlrrr11' "* —
rres
Agency, and Dr. Lee A. hristensen N nvl™nfflental Protection
^—ve
.ents while
graduatothUniversity oWscinScho A' -*' a
assistant during the first year of the prolect M "" "V research
Z££ srs* - - - «- --r:^0-n-
.cono^srl^istiS; arcolptr^^s'se^icf ^T^' *l°™^ ^^'
ture, provided many valuable insights into th^l. C DePartment of Agricul-
His suggestions resulted In greater accuracy reviewing the report.
r - ---• and
typed the final report for puWication ardman> Suhrj Curr^ & Field
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 riparian and appropriation theories, which are^the
two basic theories of water law prevalent in the United States, identify
the particular aspects of each theory that influence treatment system
design and operation, and analyze the private water rights laws of selected
states in relationship to land application systems.
Volume I of this report dealt with the general legal problems that
might be encountered by land application systems under state water rights
laws A general description of water rights law was provided, including an
analysis of those particular parts of the riparian and appropriation doc-
trines most likely to be relevant to the operation of land application
systems.
In contrast to the general overview provided by Volume I, Volume II
provides an in-depth analysis of the water laws of selected states which
were seen as being of unique importance or as representative of a larger
group of states in a particular geographical area. The criteria relevant
to the choice of states for analysis included the need to contrast: (1>
riparian theory and appropriation theory states; (2). states with adminis-
trative regulations applicable to land application and states without such
regulations; (3) industrialized states and predominantly rural or agrarian
states; and (4) water-rich states and water-scarce states within those
following both the riparian and appropriation doctrines. >
With these criteria in mind, the following Eastern States, which
adhere to the riparian theory, were selected for analysis: Arkansas,
Florida, Georgia, Kentucky, Massachusetts, Michigan, Missouri, New York,
Ohio, Pennsylvania, Tennessee, and Wisconsin. Arizona, California, Colo-
rado, Kansas, and Texas were chosen as representative of the Western
States, or those following the appropriation theory.
Of the Eastern States, Michigan, New York* Ohio, and Pennsylvania
were included to represent the northeastern industrial complex with its
heavy usage of water. Arkansas, Florida, Georgia, and Tennessee were
included as representative of Southeastern States. Of this group, Florida
and Georgia are more water-plentiful and Arkansas and Tennessee, while not
arid in the western sense, are less water-plentiful, interior states.
Wisconsin was included because of its extensive water law and its position,
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along with Michigan, as a leader in development of water law doctrines in
the Eastern States. Finally, Kentucky and Missouri were included later as
the project developed because of certain unique features in their water law
which was not found in the other Eastern States already examined.
With regard to the Western States, California and Colorado are the
SSST sources of western water law and are divergent on a number of
important points. California is more representative of the relatively
water-plentiful far Western States and Colorado more repressive of the
arid interior states. Texas was included because of an ex?enstve statutory
water law structure that differs significantly from either the California
or Colorado models and Arizona was included because of its existing
application regulations. Kansas has an unusual historical
concerned with the
application systems. Drainage patterns can be'af fect^ST1*"; °f
including land preparation, methods of wastewater annli,^' Y ^
teristics, slope, spacine of irrigation I ? application, soil charac-
zones, and caLkc'cond^lon"1
, an cccondlon in *
of wastewaters-much of which had previously hem J^'K j application
watercourses-will have several effects? discharged into natural
»aterF£o'»nich er ,b "Y""™ °£ «» body of
the land application system. l" atter«£n ^ "^ ^ *" abSe"Ce °£
the hod, of water in Ration, ^'E til.
eenprdon-d l '
have been carried away bY the flow ^surface wafers?" "» prevtoi'sl>'
and eUhesinderl16 ^ appUcation,
or stream, or ,e carried off
These varying effects will raise potential 1ooai
water law of each state where a land ann^-M 8 Problems under the
Analysis is complicated by the fact thaf mo^ ? "J^ ±S 1OCated'
structures for different clasSificatSnJ f ^ haVG diff^ent legal
apparently similar legal queJtiois can r. -^^^ Wlth the result ^
depending on whether ?he affJc Hi wa?er S™^ ' ^Vergent anSW6rS)
watercourse, surface water, or groundwater Characterized as * natural
i-pord t nc In8' c ur TT
course area, between the riparian theor °riginally ^ th^ natural water-
and the appropriation theory Sat STeithlT ^ ^ *** ^^ StateS
the riparian theory in 17 cLiguou^Vestern Strand 2.2^ ^
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SECTION 2
CONCLUSIONS
Hostility to land application systems was not discovered in any of the
states' laws analyzed. There were, however, occasional uncertainties- In
Several stages caused by the lack of statutes, regulations, or judicial
decisions involving land application.
As was developed in Volume I of this report, the position of land
application systems was strongest in the eastern riparian theory states.
However^considerable variation existed between the states in some matters,
particularly with regard to administrative regulations pertaining to on-
land application.
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the appropriation theory recognizes enforceable rights in all types of
waters, whereas under riparian theory, such rights are usually limited to
waters in watercourses. There was, however, significant variation between
the particular states.
_ California, for example, was found to have the most favorable under-
lying^water law of any Western State. Its regulations, while not unduly
restrictive, are voluminous and complex, but the basic posture toward land
application remains very favorable. Colorado, by way of contrast has a
much less favorable water law and significantly mor/stringent regulations
Arizona falls somewhere in between the two extremes, as it has produced a
clear and very favorable set of regulations despite an underlying water Jaw
base little better than Colorado's. 8 wacer xaw
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SECTION 3
RIPARIAN STATES
ARKANSAS
Law of Natural Watercourses
Description— , v , , . , j *.»
Arkansas is a riparian theory state (1), and the Arkansas cases define
a watercourse similarly to most other riparian jurisdictions. A watercourse
is basically a stream of water flowing in a definite channel, having a bed,
sides and banks, and discharging into another stream or body of water,
although the flow need not always be constant (2).
Arkansas at one time followed the natural flow branch of riparian law
(3). Although the early natural flow cases were never repudiated, the
Arkansas Supreme Court in the 1930fs began modifying this theory by noting
that the right to a stream's natural flow was subject to reasonable use by
upper proprietors (4). In the 1950's, the court then clarified the con- _
fusion that had resulted from the earlier inconsistent opinions. In Harris
v. Brooks (5), the owners of riparian land adjoining a non-navigable lake
sued to enjoin the lessees of another parcel of riparian land from pumping
water from the lake, thereby making the lake less suitable for fishing,
recreation, and other purposes. The plaintiffs rented cabins on the lake
to vacationers and the defendants were pumping water to irrigate a rice
crop. The court held for the plaintiffs, and while in the course of its
opinion it did not specifically overrule prior natural flow opinions, it
did say that whenever the two theories produced inconsistent results, the
reasonable use theory should prevail where vested rights may not prevent
such a result. The court also distinguished between "natural uses—in
particular, domestic consumption—as to which the natural flow theory still
applied and which uses were, consequently, superior to all other uses of
the water; and "artificial" uses, which included all other lawful uses of
water, such as fishing, swimming, and irrigation. As to these uses, the
reasonable use theory would apply—any of these uses would be inferior to
an asserted "natural" use, but with this exception they would all stand on
equal footing.
In the Harris case, all of the desired uses—both plaintiffs' and
defendants'—were artificial. Therefore, to determine whether the defend-
ants' artificial use was reasonable or not, the court said that it was
necessary to consider all factors, including the purpose of the use, its
extent, duration and necessity, the nature and size of the body of water,
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the other uses customarily made of the water, and the extent of the injury
to one proprietor as compared to the benefit to the other. Weighing all of
these factors, the court held that, although irrigation was generally a
permissible use, in this case the pumping for irrigation purposes so de-
pleted a small lake and harmed the other landowners as to be unreasonable
and therefore enjoinable (6) .
As a result of this and other decisions, Arkansas is basically a rea-
sonable use riparian jurisdiction. In theory, an aggrieved riparian who
asserted a loss of water for domestic purposes because of upstream diver-
sion for irrigation could assert a "natural flow" cause of action and pre-
vail under present Arkansas law, without regard to the reasonableness of
defendant's conduct. However, what is typically being diverted from natural
watercourses by an on-land application system is effluent, not water
Therefore, while a downstream industrial user might complain about the loss
in flow xf that user was not helped by the improved quality of the water,
such a use is artificial" and, under the Arkansas formulation, stands on
only an equal footing with the upstream irrigation use. In such a case the
reasonable nature of the irrigation use would be legally relevant and would
most likely prevent injunctive relief. Only a domestic user would have a
natural priority, but such a user would not be using the diverted wastes
for d^stic purposes in the first place, and consequently would not have
damages sufficient to base a lawsuit.
Except for the above confusion between the natural flow and reasonable
use theories of riparian law, Arkansas, on most other pointl or the law of
natural watercourses in relation to on-land application systems, is a typi-
cal reasonable use jurisdiction. There is, however, a paucity of LLl
authority on a few important points, presumably due to ?he reLtive lack of
industrialization in Arkansas. relative lack or
"{ - :,'
There are cases Indicating that there will be liability where a land-
owner can prove that he has been damaged by obstruction (T\ j- ? /Si
or pollution (9) of a natural watercourse In any suS caL T- f< < '
relief or money damages are available remedies to the corno!,?'-, '
There is some doubt whether, in a suit for " """"'
°f equltles" de£ense-
rejected the defendant's defense that it was a Uful busings operated in
=^n:rb^^^
and in the later case of Smith „. Magnet Cove BcJ^ C™ TlST 2"lT^
Sr-he-^^^
nized in a suit for inu C )f °Uld be rec°g-
nized in a suit for injunctive relief.
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In a suit for money damages, Arkansas follows the usual rule that for
permanent harm the proper measure of damages is the difference in the
market value of the affected land (11); and in the case of temporary harm,
damages will be measured by the loss in use or rental value to the owner,
and not by the loss in salable value (12).
Implications for Land Application Systems—
The Arkansas law of natural watercourses, like that of other riparian
states, does not distinguish 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 watercourse and on the uses that may be made of
that water by other riparians. Also, since Arkansas has no administrative
regulations pertaining directly to natural watercourses and the establish-
ment of land application systems, the recommendations regarding establish-
ment of such systems in Arkansas are the same as the general recommendations
for natural watercourses in riparian states found in Volume I of this
report.
With regard to the possibility of an application system interfering
with the flow of a watercourse, the Arkansas law of natural watercourses
has generally favorable implications. Any of the possible methods of ap-
plication would be defined as "irrigation" within Arkansas law, and Arkansas
has held that irrigation is a reasonable—and therefore permissible—use of
the waters of a natural watercourse. Since Arkansas has reached that con-
clusion in situations where the irrigator is diverting the pure waters of
a stream, the same conclusion is even more likely where the irrigator is
diverting primarily wastes and, as a result, improving the stream's quality.
This general conclusion of reasonableness does not mean that every
conceivable land application system would be shielded from legal consequences
in every conceivable Arkansas forum. A particular project might divert a
tremendous amount of wastes and, necessarily, some water along with the
wastes. If this occurred on a stream where a downstream landowner 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. To minimize the
possibility of liability still further, there are several steps that can be
taken in the institution and operation of land applications systems.
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 would 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 that user to prove the land applica-
tion system to have 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
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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 quality of flow on a large stream.
3. If diversion of wastes will occur from a natural watercourse (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 law of natural watercourses also intersects with land application
systems 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 quality of trace contaminants remaining after
application will be a function of the method of application used and the
skill with which it is applied.
Operators of land application systems can be liable in Arkansas for
pollution of the waters of a natural watercourse if, in a particular situa-
tion, some contaminants may drain into the watercourse. This can occur 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. Although, in legal theory, money damages or an injunction are
the relief an injured downstream landowner could receive, the likelihood, as
in other riparian states, of either type being awarded is extremely remote.
the J^iM^i™ n/K^f °r? °f application systems can totally eliminate
Even if 111 i 7 f Jiabillt* for trace Pollution of a natural watercourse.
Even if all required operation permits are obtained, they do not shield the
operators from possible liability. Several steps, such L the following
may be taken to further minimize the possibility of risk? toilowln8»
1. In establishing sites for land application systems, consideration
should be given to whether the desired method of application and
the soil characteristics will cause a greater residue of pollutants'
ferent°soil?CCUr * dlffer6nt "8thod °f aPPHcation o? on dlf-
2. In establishing sites for land application systems, consideration
should also be given to whether there is a watercourse located
close enough to the application site so that pollutants might
frequently drain into the watercourse, such as during heavfrain-
"kel^^o * !f er??UrSe 1?Cated Cl°Se t0 the ^plication site and
snoSd be sivpn r^7 reC6lVe traCe Pollutants, then consideration
should be given to the nature of the downstream uses and whether
2! be SShS JlkeiY ? ^ harmed ^ the tyP6S °f Pollys that
may be discharged and the quality and flow of the watercourse and
^impact the pollutants will likely have upon that c^Uty anf
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Unlike some other riparian states, Arkansas does not have any
administrative regulations requiring methods of control insuring that a
high percentage of pollutants remain within the perimeter of the system
instead of draining into the watercourse, limiting the volume of discharge
during irrigation, and monitoring discharges to insure water quality.
Prudence still requires that precautions be taken, because an important
element in litigating to determine reasonableness in water use is proof
of the care attendant on the institution of that use.
Law of Surface Waters
law of surface waters is in a state of some confusion.
Although early Arkansas decisions stated and applied the so-called civil
law rule it is clear that the rule has been modified, if not supplanted
in Arkansas. The pertinent questions not fully answered by the Arkansas
court decisions are to what degree the civil law rule has been supplanted,
and what theory has replaced it.
One of the earliest cases departing from a pure "civil law" viewpoint
was Baker V. Allen (13), decided in 1899. An owner of low-lying rural
lands built a levee to prevent his land from being flooded by surface
water The levee caused water to back up across the lands of the plaintilt,
an upper proprietor, who sued to compel the levee's removal. The court
stated that, under common law, each landowner had the right to protect
his land against surface water, but that Arkansas had adopted the rule
that the right to obstruct natural drainage was not absolute, and that a
landowner would be liable if he unnecessarily injured the upper landowner
by erecting a levee where, by reasonable care and expense, he might have
avoided the injury. The court characterized surface water as a common
enemy, but qualified this characterization by stating that one landowner
cannot make his estate more valuable by an act which unnecessarily makes
his neighbor's property less valuable. In this case the levee was held
to be necessary for the protection and development of the defendant s
property and so the injunction was denied.
Although this would seem to establish some form of the common enemy
rule in Arkansas, a distinction was made between rural and urban areas
nine years later in Levy V. Nash (14). In this case which occurred in
what was characterized as an urban setting, Nash sued Levy because of
Improvements made by Levy to his property in Little Rock Levy closed a
culvert causing water to back up on Nash's sidewalk and backyard. The
trial court required Levy to remove any obstruction to free passage of
water through the culvert, but on appeal the Arkansas Supreme Court
noteS that Levy was forced to close the culvert in order to protect his
own land against overflows by surface water caused by obstructions
rlised by owners below him. The court denied the requested relief,
stating:
The lot of the defendant is in the midst of a populous
city. The rule which governs the right to dispose of surface
water in agricultural districts does not apply to such property.
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It is set apart, held, and owned for building purposes. To
make it useful for this purpose, the owner has the right to
fill it up, elevate it, to ditch it, to construct buildings on
it in such a manner as to protect it against the surface water
of an adjoining lot. If in doing so he prevents the flow of
surface water upon his lot, the owner of the higher lot has
no cause of action against him. (15)
The Levy opinion clearly adopted a common enemy rule for urban
areas, but in doing so it implied that the rule was different in rural
areas. Indeed, an urban-rural distinction, with the common enemy theory
applied in urban areas and the civil law rule applied in rural areas is
not unusual (16); what is unusual is that the Arkansas Supreme Court'
apparently applied such a distinction within ten years after it renounced
the civil law rule without regard to the characterization of the area in
question,
The only way to synthesize the various Arkansas decisions would be
to say that, in a rural setting, a landowner can fend off surface waters
as long as he does so without unduly damaging his neighbors (17), but in
an urban setting he has an absolute right to prevent surface water from
reaching his property without regard to the harm he may be causing his
uat
area, and the court restated the rules of all of thl earlier LS,
without modifying their possible inconsistencies. It cited iZ (14)
for the flat proposition that in an urban area the land o™ I, ,
surface water to improve his property; and ciLdXiS ^Tu^s
only ., ertut T T
so even in bad faith or negligently. It ma/be that's
rnceAr
settles upon as its replacement * *"* ^ Ark&nSaS eventually
10
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It must also be noted, in attempting to define the Arkansas law of
surface waters, that virtually all of the Arkansas case law involved
diversion or obstruction by a landowner of surface water coming to his
land from another's land. There are no Arkansas cases involving the
right of a landowner to either use surface water reaching his property
or discharge, either intentionally or unintentionally trace pollutants
into surface waters which then flow across the land of another. The
first proposition has never been questioned in Arkansas, and it must be
seriously doubted whether lower landowners would have any right to
prevent the upper landowner from making whatever use he pleased of the
surface water. Riparian rights do not attach to surface water until it
reaches a natural watercourse, and in riparian theory states, including
Arkansas, there is no other cognizable concept of "right" in water which
would restrict consumption of surface water on the land where it is
found.
The second proposition, pollution of surface waters, cannot readily
be handled under either the civil law or common enemy rules or any of
their variations. In view of Arkansas' movement toward the reasonable
use theory in other areas of water law, it is highly likely that any
such case arising in the future would be resolved under the standard of
r eas onablene s s.
Implications for Land Application Systems—
The Arkansas law of surface waters makes no distinction between the
several different types of land application systems. The case and
statutory law in this area is sparse, and is primarily concerned with
the right of one landowner to discharge surface waters across the land
of another. As is true of most riparian states, Arkansas law has extremely
favorable implications for land application systems in situations where
both pollutants and diffused surface waters are retained at the application
site. It has only slightly less favorable implications when both substances
are dispersed to adjoining lands.
In the case of trace pollution of surface waters crossing the lands
of another person, Arkansas simply has no law directly on point. The
Arkansas surface water cases are almost exclusively concerned with the
issue of an upper landowner creating a discharge that did not P™*^
exist, usually by building on or paving his property, and not with the
issue of adding pollutants to an already existing surface water flow.
Probably, given its recent trend in that direction in other a^as>
Arkansas would apply a rule of reasonable use to such Pollution Since
as we have established with regard to natural watercourses, land application
systems are reasonable uses under the Arkansas case law, this would mean
that it is very unlikely that a land application system in Arkansas
would be prevented from operating because of trace pollution of surface
waters. The operators of land application systems might have to pay for
damages caused to adjoining landowners, but the possibility of such
liability is even less likely in the surface water category than it is
in the natural watercourse category.
On the other hand, if the system collects both surface waters and
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trace pollutants on its property, there is not even a possibility of
liability for interference with the flow of surface waters. It is clear
that because 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 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 specifi-
cations of any adjoining land uses that might be harmed by either the
interruption of surface water flow or the addition of trace pollutants.
Law of Groundwater
Description—
Arkansas has adopted the reasonable use rule to resolve issues
concerning subterranean percolating waters, which includes all groundwaters
except those flowing underground in natural watercourses. In Jones V.
Oz-Ark-Val Poultry Co. (20), the defendant company was using the water
from seven wells on its property to process 12,000 chickens daily.
Jones sued for injunctive relief, asserting that the operation of the
chicken processing business caused their artesian wells to go dry.
After briefly discussing the rule of capture, which the defendant company
asserted justified its conduct, the court noted that Arkansas had adopted
the reasonable use rule to govern the water rights of riparian owners of
land adjoining natural watercourses, and said: "We see no good reason
why the same rule should not apply to a true subterranean stream or to
subterranean percolating waters" (21). The majority of the court then
concluded that it was unreasonable to permit the company to use thousands
of gallons of water each day to process chickens when that use did not
leave enough water to satisfy the domestic needs of the neighbors.
Since Arkansas follows the reasonable use rule with regard to
percolating waters, questions of possible liability for interference
with such waters will be resolved in accordance with reasonable use
analysis as developed with regard to natural watercourses. One further
question, however, is whether liability for pollution of percolating
waters would be governed by the same reasonable use standard as is
liability for excessive use of percolating waters. This question is not
clearly answered by Arkansas case law.
Theoretically, there can be damages for pollution of percolating
waters in Arkansas; in practice, however, liability has been denied in
each of the reported cases. In addition, the basis for possible liability
has not been clearly stated in any case. In Magnolia Petroleum Co. v.
Srmtn (22), the plaintiff, Smith, sued for permanent damages for the
destruction of his well caused by an overflow of gasoline from the
defendant's property. The plaintiff's lawsuit was based on the negligence
theory, but the supreme court did not consider whether it was necessary
to prove negligence in order to recover for pollution of a well. Instead,
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it held that since the overflow had occurred only twice in two years, the
trial court erred in allowing damages on a theory of permanent rather than
temporary harm. The whole opinion is couched in terms of negligence, which
is consistent with a reasonable use standard governing questions of pollu-
tion, but since the plaintiff did not attempt to assert any theory of
strict liability, the case cannot be read as definitely rejecting such a
theory.
In Faires V. Dupree (23), the plaintiff sued for money damages for the
loss of a spring due to seepage of garbage from the defendant's hog farm.
Although the court's opinion is not clear, it appears that the plaintiff
sued on a theory of nuisance. Such a theory could imply liability in the
absence of negligence, but would not necessarily exclude considerations of
reasonable use by the defendant, however, the court again did not reach the
theory of liability issue, holding instead that the plaintiff failed to
show an ascertainable monetary loss sufficient to sustain an award of
damages.
Implications for Land Application Systems—
The Arkansas law of groundwater does not distinguish between the
different types of land application systems. Instead, the law is primarily
concerned with landowners' competing rights to use such water, and second-
arily with the consequences of groundwater pollution or corruption.
With regard to the possibility of trace contaminants reaching ground-
water supplies, Arkansas law has favorable implications for establishment
of land application systems. Since Arkansas has taken the reasonable use
analysis from the natural watercourse area and applied it to groundwater,
the basic analysis of land application systems and their relation to ground-
water law is the same as has already been discussed under natural water-
courses. There are, however, a few differences in analysis which should be
set forth.
First, the collection of wastes to be used after treatment will not
interfere with dispersal of groundwater, whereas, as we have noted, that
collection could occasionally involve the collection of water from a natural
watercourse. Therefore, any problems involving land application systems
and their possible impact on groundwater will occur at the end, and not the
beginning, of the application process, that is, what happens after applica-
tion.
Second, almost the entire law of groundwater in Arkansas, as in several
other riparian states, deals with the use of groundwater by competing
owners of land above the groundwater supply. There is very little law
considering the issues of groundwater pollution or discharges that inter-
fere with the pre-existing water cycle.
From the point of view of the operators of land application systems,
if liability were asserted because of pollution of a groundwater supply,
the worst that could happen would be a similar analysis as would happen in
a case involving pollution of a natural watercourse. Only affected land-
owners could sue, not the general public. Those landowners would have to
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show that the system polluted a groundwater supply, that they were drawing
from the same 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. Arkansas is not one of the states that applies a
stricter standard to groundwater than to natural watercourses and holds a
polluter "strictly" liable, that is, liable without proof of negligence.
All the reported Arkansas decisions, in cases where the basic use of the
overlying land was said to be reasonable, have been in favor of the defend-
ant.
Where an adjoining landowner complains because, in the absence of pol-
lution, groundwater recharge from an application site raises the water
level of the groundwater, he will have an even more difficult time in
attempting to sue the system's operators. There are no cases in Arkansas
allowing recovery by a landowner in the absence of provable negligence in
the operation of the system and intentional harm being done.
Thus, in theory the system operators could be found liable if the
application system caused pollution of groundwaters, and probably could not
be found liable for mere raising of the water level in the absence of
pollution. There are some precautionary steps that can be taken to mini-
mize the possibility of liability. Some of these include limiting irriga-
tion fields to sites with a specified maximum elevation of groundwater;
controlling specific aspects of operation such as rate of application,
grade or slope of spray fields, and alternate distribution of effluent; and
requiring groundwater monitoring in the area of the system. Unlike some
riparian states, however, Arkansas has no administrative regulations re-
quiring any of these steps be taken.
Summary
Despite the fact that the basic water law of Arkansas—in all cate-
gories—is favorable, the state has some administrative regulations and.
informal guidelines, even though not directly related to water rights, that
are among the least favorable to the possibilities for establishing land
application systems. This posture appears to result from the view held by
the relevant administrative agencies that on-land application is undesirable.
The Arkansas Department of Pollution Control and Ecology (24) has
broad rule-making powers in the general area of water pollution under the
Arkansas Water and Air Pollution Control Act (25) that deal generally with
sewage disposal (26). However, the department's interpretation of its
powers under the Act assumes that, after treatment, all wastes will be
either discharged into the waters of the state or dumped into on-land
holding basins, but will not be put to an "affirmative" use such as irriga-
tion (27).
None of the regulations promulgated by the Department of Pollution
Control and Ecology specifically cover on-land application systems. Such
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systems, however, could be indirectly affected by the department's Water
Quality Standards, Regulation No. 2 (28), if runoff, after application,
into the waters of the state occurred (29). That regulation, which sets
forth water quality criteria for waters of the state, requires secondary
treatment of wastes before discharge into waters of the state and estab-
lishes various "use classifications" for those waters. It does not, however,
establish any specific procedures for sample collection, measurements, or
analysis or consider the technology of land treatment of effluent.
By way of contrast to the Department of Pollution Control and Ecology,
the Division of Engineering within the Arkansas Department of Health (30)
has informal guidelines directly governing irrigation with wastewaters.
These guidelines and the division's policy are restrictive on land applica-
tion systems. The division reviews each application for a land treatment
system on an individual basis and requires an engineering design. Division
approval must be obtained before effluent or sludge from any type of sewage
treatment plant can be used for irrigation, fertilization, or soil con-
ditioning. While the guidelines allow the use of both treated domestic
effluent and industrial sludges, whereas some other states with similar
regulations or guidelines allow only treated domestic effluent, the only
crops approved for growing on wastewater irrigated lands in Arkansas are
forage crops. This is the most stringent category to be found in any
state's regulations or guidelines. In addition, the quality of the ef-
fluent to be applied is specifically stated—chlorinated secondary treat-
ment (31).
In general, the strict Arkansas regulations and guidelines have no
compelling basis under either the Arkansas statutes or the Arkansas law of
water rights. Despite the adverse regulatory posture, the basic water law
of Arkansas is favorable to land application systems. Arkansas statutes,
in authorizing rule-making authority to the Department of Pollution Control
and Ecology and the Department of Health, grants them broad powers to
either encourage or discourage land application systems. While liability
from operating land application systems could ensue, in theory, under the
water rights law of any riparian jurisdiction, Arkansas' law is more favor-
able than unfavorable. The use of the reasonable use rule in two of the
three major categories of water, the absence of any theory of strict lia-
bility, and the supreme court's requirement of demonstrative proof of
monetary harm before relief will ensue, all serve to create a favorable
legal climate for a well operated land application system.
FLORIDA
Law of Natural Watercourses
Description— , ...
Florida is a riparian theory state and the Florida cases define a
watercourse similarly to other riparian jurisdictions. A watercourse has
been defined by the Florida courts as basically a stream of water flowing
in a definite channel, having a bed, sides and banks, and discharging into
another stream or body of water, although the flow need not always be con-
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stant (32) . It is also clear that an artificial drain, ditch, or canal
can, with passage of time, be treated as a natural watercourse (33).
The reasonable use version of riparian rights was adopted in Florida
before the turn of the century in Tampa Waterworks Co. v. Cline (34) . That
case involved an underground stream, but the same rules are applied to a
watercourse whether it flows on the surface or underground. Thus, it
appears that one's use of water in a natural watercourse may be reasonable
or unreasonable depending upon the right of other riparians to use the
same water. Although the Florida cases have not addressed the question of
whether an artificial use, such as water used in manufacturing, would call
for the application of a different rule, the type of use would almost
certainly be a factor in determining reasonableness,
The Florida position in regard to diversion of a watercourse was
established in Ldbruzzo v. Atlantic Dredging & Construction Co. (35) , which
also involved an underground stream. The court in this case distinguished
intentional invasions of water rights from unintentional invasions. Thus,
if the diversion of a watercourse is unintentional, the diversion is action-
able if the conduct causing the diversion is negligent, reckless, or ultra-
hazardous. By contrast, if the diversion is intentional, the diversion
will be actionable if the conduct is unreasonable under all the circum-
stances of the case.
As far as pollution of a natural watercourse is concerned, the applica-
txon of the reasonable use rule allows some pollution if the pollution is
reasonable under all the facts of the case. This broad application of the
reasonable use rule may allow a watercourse to become polluted, but it has
been justified as a desirable rule for a jurisdiction such as Florida which
has wanted to attract industry to the area. An example of the doctrine's
operation is the leading case of Taylor v. Tampa Coal Co. (36) In that
case, the riparian landowners on a lake sought injunctive relief against
the defendant citrus grower (Taylor) , who had been withdrawing large
quantities of lake water to irrigate his citrus groves. In enioining the
defendant from diverting the lake water during any dry season? the court
invoked the reasonable use rule. Stating that riparian rights to the use
of waters are equal, the Florida Supreme Court said: "Except as to the
supplying of natural wants, ...such as drinking, washing, cooking, or for
Tthelak fPrOPliTrf fCh rlParlan OWner hSS the r±Sht to »"* the water
in the lake for all lawful purposes, so long as his use of the water is not
detrimental to the rights of other riparian owners" (37). Applying this
reasoning, the court determined that "...the lake is too stnaU in area and
content to allow water to be pumped therefrom for irrigating purposes
without consequent damage to other riparian owners" (37) .
restrict .
'7 1 liabili^ for Pollution of a watercourse is further
J;e1uiremen ! **«* a Plaintiff either establish concert of
, T f f °ne defendant ""tributes to the pollution, or estab-
n , r dama&* caused by each polluter. Thus, in Standard
or M f (38)* the plalntiff «B unable to get redress
because thir * ***** CaU8ed by the dumplng °f waste lnto *** "ream
because there was no concert of action between the two defendants. Sinc
Since
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there is normally no concert of action by different polluters of a stream,
the plaintiff will be faced with the almost impossible task of showing the
damage caused by each polluter's conduct.
In addition to this rather stringent requirement of proof of harm,
Florida also recognizes all traditional equitable defenses in a suit for
injunctive relief, including "balancing of the equities," which is called
the "balance of convenience" doctrine in Florida.
Implications for Land Application Systems--
Florida law of natural watercourses has generally favorable implica-
tions for land application systems, whether one is referring to either
possible interference with water flow or possible discharge of trace pol-
lutants. Since Florida follows the reasonable use rule of riparian rights,
the repercussions caused by the possible drainage of contaminants into a
watercourse would seem to depend upon which watercourse is affected.
Should contaminants drain into the watercourse which had previously been
used for disposal of the waste, no problem will be presented. Since at
least some of the polluting qualities of the waste will have been removed
during treatment and application, it would certainly be reasonable for
smaller quantities of waste to enter the watercourse than the large quantity
of pollutants previously dumped directly into the water. The only possible
problem will occur if a discharge finds its way into a different watercourse.
Should this situation arise, the amount of contaminant which drains into
the watercourse and the quality of the watercourse will have to be con-
sidered in determining whether the drainage violates the reasonable use
rule. Although the requirement of establishing concert of action or the
damage caused by each polluter would make liability unlikely under the
reasonable use rule, it is obvious that steps should still be taken to
. apply the wastewater to lands which drain into the original watercourse
when feasible in order to avoid as many problems as possible.
To minimize the possibility of liability caused by interference with
the flow of watercourses and with trace pollutants still further, the
recommendations set forth in Volume I of this report for natural watercourses
in riparian states and for Arkansas in Volume II should be followed without
modification.
Law of Surface Waters
Description—
The problems involved with surface waters are usually presented in the
context of an upper landowner attempting to impose the entire burden of
disposal upon the lower owner. As is true in other states, the majority of
Florida cases address the question of the extent to which a landowner can
affect the natural drainage of surface water. Since surface water is
usually an undesirable form of water which each landowner regards unfavor-
ably, the rules concerning retention and use of surface waters and the
pollution of surface waters are seldom discussed.
The most significant aspect of the problems involved in the use of
surface waters is the absence of Florida cases dealing with the question.
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The rule which emerges from other jurisdictions that have considered the
question seems to be a rule of absolute ownership (39). Language in several
Florida decisions indicates that Florida would also allow the landowner to
gather and use all surface waters reaching his land.
The decisions by Florida courts involving disposal of surface waters
represent an adoption of the civil law rule of natural flow, but with many
modifications. The civil law rule has not been expressly accepted, but the
actual outcome of the cases and the language used in the opinions lead to
the conclusions that a modified civil law rule is applied.
The first case to deal with the problem was Callan v. G. M. Cypher Co.
(40), wherein the plaintiff sought to enjoin the defendant from constructing
a ditch to be used to drain surface water into a natural watercourse. Al-
though the supreme court discussed both the rule against diversion of the
natural flow of surface waters and the rule against taxing a watercourse
beyond its capacity by drainage of surface waters, the court did not adopt
either rule since the facts did not show that the defendant had violated
either rule.
Three years later, the Florida Supreme Court was again faced with a
surface water diversion problem in Brumley v. Dorner (41). In that case,
the county had constructed a road near the plaintiff's property and the
plaintiff alleged this obstructed the natural flow of surface water drain-
age to the north, and also that the ditch along the road cast water from
his neighbor's land onto his land which otherwise would have drained to the
north. In affirming the overruling of the defendant's demurrer, the Florida
Supreme Court discussed the civil law rule and the common enemy rule and
the modifications of each. Then, the court declared the universal rule to
be that "...no person has the right to gather surface waters that would
naturally flow in one direction by drainage, ditches, dams, or otherwise
and divert them from their natural course and cast them upon the lands of
the lower owner to his injury" (42).
The application of the Brumley rule may not always allow the plaintiff
to prevail even if surface water is drained into a natural watercourse and
flooding damages the plaintiff's land. The plaintiff may lose if his con-
duct has contributed to his injury. Thus, in Stoer v. Ooala Manufacturing,
Ice & Packing Co. (43), the plaintiff's claim was rejected because of the
finding that the plaintiff's negligence in failing to keep the natural
watercourse open caused the flooding and not the drainage of surface water
into the natural watercourse. Similarly, in Bray v. City of Winter Garden
(44), the plaintiff failed to get an injunction and an award of damages
because of a finding that the overflow was the result of the plaintiff
neglecting his duty to keep the watercourse open.
The reasoning of the Bray decision was recently applied in Hodge V.
Justus (45), where the District Court of Appeals affirmed the trial court
in setting aside a jury verdict for the plaintiff and entering judgment for
the defendant since the plaintiff failed to establish a causal connection
between the damage done to the plaintiff's land and the land clearing and
construction activities carried on by the defendant. But the court in the
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Hodge case expressly rejected the contention that an upper owner could
collect and dispose of surface waters in any manner, even though the
quantity discharged upon adjacent land is substantially increased. An
analysis of the decision illustrates the divergence between the modified
civil law rule expressed in the Florida cases and the actual results of
those cases.
In rejecting the contention that an upper owner could dispose of sur-
face waters in any manner he chooses, the court in the Hodge case relied
upon the recent decisions in Gwinn V. Andrews (46) and New Homes of
Pensacola, Inc. V. Mayne (47). Both cases used the traditional civil law
rule language of "natural flow" and "servitude upon the lower owner" in
expressing the Florida rule. In Gwinn the defendant constructed a concrete
patio which blocked the natural drainage of surface water from the
plaintiff's land and was required to pay damages and restore the natural
drainage. In the Nea Homes case, the defendant used a drainage ditch to
dispose of surface water runoff from a subdivision. The ditch was negli-
gently maintained and the flow of surface water runoff caused the plaintiffs'
land to erode. In affirming the grant of a mandatory injunction against
the defendant, the appellate court stated that the servitude imposed upon
the lower owner "...ordinarily extends only to surface water arising from
natural causes and cannot be increased or made more burdensome by the acts
or industry of man" (48). Thus, the court reasoned that the developer was
under a continuing obligation to provide and maintain an adequate drainage
system.
Therefore, it seems that the rule governing surface water disposal
allows an increased amount of surface water to be drained from an owner's
land as long as he exercises due care in disposing of the runoff. Further-
more, the use of land which caused increased runoff is further limited by
the rule against changing the natural direction of the drainage. This rule
was applied in Laurence V. Eastern Air Lines (49), where land was filled in
and paved for the construction of an airport project. The dismissal of the
complaint was reversed since the plaintiff had alleged the natural flow of
surface waters had been altered.
In the absence of a change in the direction of natural drainage, the
Florida rule as to drainage of surface waters is applied in such a manner
as to allow development of land, but the development or use of the land
must be done in a reasonable manner. Thus, in Hodge (45) a finding of no
causal connection allowed the development of land without liability for the
effects on surface water runoff. In contrast, the development of the land
in Roger Properties* Inc. v. Allen (50) was carried out in such an unreason-
able manner that the defendant was held liable for compensatory and punitive
damages. In Roger Properties,, the increased runoff caused by the construc-
tion of an office building and the paving of a parking lot was collected in
a drain system which discharged the water into a ditch directly across from
the plaintiff's property. The defendant knew the ditch would be overbur-
dened and asked the city to improve the ditch. But, before the city im-
proved the ditch, the defendant went ahead with his plans and the plaintiff's
house was flooded by the runoff. The court explained that a developer of
such concrete and asphalt complexes should use reasonable care to guard
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against injuring a neighboring landowner and held that on the facts of the
case, the developer was grossly negligent.
Florida has no water law rules addressing the problem of pollution of
surface waters. This is not unusual, since the use of surface waters has
not been widespread and, thus, the pollution of surface waters had not been
a topic of great concern. It is arguable that the rule providing the
servitude imposed upon the lower owner cannot be increased or made more
burdensome by the acts of industry of man, which, if applied to drainage
cases, could be applicable to situations involving pollution. But, in
light of the increasing awareness of the hydrological cycle and the adoption
by the Florida courts of a rule of reasonableness applicable to other water
rights problems, it would seem that a rule of reasonable use would be
applied to pollution of surface waters should the question be presented to
the Florida courts today.
Implications for Land Application Systems—
Florida law of surface waters has generally favorable implications for
land application systems. Although there are no Florida cases directly in
point on questions of trace pollution of surface waters, it is most likely
that Florida will apply the rule of reasonable use which it applies to
questions of pollution of natural watercourses. Since Florida's appli-
cation of the reasonable use rule is one of the most favorable from the
viewpoint of a potential defendant, liability for trace pollution of sur-
face waters appears to be a remote possibility.
On the other hand, if a land application system collects both surface
waters and trace pollutants on its property, rather than discharge both
across adjoining lands, it is equally unlikely that there would be liabil-
ity. Although Florida again has no cases directly in point, the universal
riparian rule is that the lower landowner has no "property" right to sur-
face waters, and cannot insist on their continued flow. The upper land-
owner—in this case the land application system—can with impunity collect
all surface water on its property.
In addition to the general considerations previously mentioned for'
Arkansas and those set forth in Volume I of this report under the law of
surface waters for riparian states to be taken into account when creating a
land application system, Florida has pertinent guidelines relating to land
application of domestic wastewaters (51). The Department of Environmental
Regulations expects that these guidelines will be adopted in their present
form as official regulations by the spring of 1978 (52). Under these
guidelines various buffer zones are required around application sites (53) ,
including that the boundary be between 200 and 500 feet from a private
drinking water source depending upon the design capacity of the application
system (54). The distances to public roadways, residences, or residentially
zoned areas are dependent upon the extent of treatment and disinfection,
method of irrigation application, prevailing wind direction, and the
presence of shrubs or trees around the site (55). The guidelines
specifically provide that the system must be designed to prevent runoff
from entering or leaving the project site. Storm runoff, on the other
hand, may be retained within the project area and released to surface
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waters, if applicable surface discharge standards are met (56).
Law of Groundwater
Description—
The problems associated with the use of groundwater were presented to
the Florida Supreme Court in the early case of Tampa Waterworks Co. v.
Cline (34). The plaintiff in this case alleged that the defendant company's
excavations would divert and pollute an underground stream which supplied
the plaintiff's spring. In affirming the trial court's denial of the
requested injunction against the defendant's continued excavations, the
supreme court distinguished percolating groundwater from underground streams
and held that the same rules that apply to surface watercourses also apply
to underground streams. Thus, the defendant could not divert or pollute
the stream, but he could open a water supply and make a reasonable use of
the water.
The Tampa Waterworks decision established that the reasonable use
rule would be applied to the use of waters in a surface or subsurface
stream, but it also created some uncertainty with its dictum concerning
percolating groundwater. The court indicated that the landowner could
appropriate the entire supply of this type of water to his own use. But,
this apparent adoption of the English rule regarding use of percolating
groundwater was soon questioned and rejected. In Cason v. Florida Power
Co. (57), the defendant's dam on a river caused the groundwater not to
drain from the plaintiff's land, thereby raising the level of the ground-
water and damaging the plaintiff's land. In reversing the trial court's
direction of a verdict for the defendant, the supreme court stated that the
rights relative to the passage of percolating water were correlative and
that there was a jury question presented as to whether the defendant's
actions were reasonable with reference to the rights of adjoining land-
owners. The use of percolating groundwater was finally squarely presented
to the Florida Supreme Court in Koch V. Wick (58). In that case, the
Pinellas County Board of Commissioners had leased a strip of land next to
the plaintiff's land and were drawing the water supply for the public from
their wells. The court rejected the English rule and applied the reason-
able use rule. Thus, there was a jury question as to whether the extraction
of so much water was reasonable and the court reversed the trial court and
reinstated the complaint.
The reasonable use rules regarding diversion (as opposed to pollution)
of percolating groundwater were discussed and given some further refinement
in a more recent case. The plaintiff in Labruzzo v. Atlantic Dredging &
Construction Co. (35) alleged that his neighbor's dredging on the St. Johns
River caused his spring to run dry. The defendant contended the dredging
was a reasonable use of his property and the plaintiff therefore had no
cause of action. In reversing the judgment of the trial court, which had
sustained the defendant's demurrer, the supreme court distinguished the
rules regarding use of water and those regarding the use of land. The
court noted that the problem was not a conflict over the use of water, but
a problem of the defendant's use of his land, which interfered with the
plaintiff's use of the water. Thus, the court stated that the reasonable
21
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use rule in regard to the use of water was not applicable.
In addressing the problem of the defendant's use of his land and its
effect upon the plaintiff's use of the underground water, the court in
Labvuzzo distinguished intentional invasions of water rights from uninten-
tional invasions. As to unintentional invasions, the plaintiff had a cause
of action only if the defendant's conduct was negligent, reckless, or
ultrahazardous. For intentional invasions, the plaintiff need only show
the defendant's conduct was unreasonable. In applying the rule to the
facts alleged, the court found that the first count of the complaint did
not state a cause of action since there was no surface indication that the
defendant's excavation would interfere with the plaintiff's spring. Thus,
the court reasoned, any invasion was unintentional and since the plaintiff
did not allege negligence, no cause of action was established.
As to the second count, the court found that a cause of action was
established for an intentional invasion. The court reasoned that once the
underground watercourse was discovered by the defendant, the question of
whether obstruction of the underground watercourse could have been pre-
vented by the exercise of reasonable care while excavating was for the
jury.
The Florida rule in regard to pollution of groundwater is less well
developed and appears more stringent than the rule regarding use or diver-
sion of groundwater. In the early Tampa Waterworks case (34), the Florida
Supreme Court dealt with the question of pollution of an underground stream.
Although the court affirmed the judgment of the trial court dismissing the
complaint, since the plaintiff had failed to make a sufficient showing of
pollution or diversion, the court explained that the excavations made by
the defendant could continue so long as this conduct did not pollute or
divert the underground stream. Furthermore, the court stated that the
defendant had a duty to prevent impurities in the surface water from drain-
ing into the excavation and polluting the underground stream.
The Florida position regarding pollution of groundwater had been
stated even more strongly seven years earlier in Pensaoola Gas Co. V.
Pebley (59). The defendant in that case discharged polluted wastewater
from its manufacturing operations upon the ground. As a result, the
plaintiff's well on nearby land was polluted. Since there was no evidence
that the well was supplied by an underground watercourse, the presumption
of percolating underground water applied under Florida law meant that the
court was faced with the question of pollution of percolating groundwater.
Again, the court spoke of a duty imposed on the defendant to confine the
wastewater to prevent injury to neighboring landowners. The origin of this
duty is less than clear, since the court at various stages of the opinion,
explained that the defendant's acts were "done at their peril " that the
escape of the wastewater was "evidence of negligence," and that the de-
fendants continued the nuisance." Thus, whether the theory of liability
was strict liability, negligence, or nuisance is uncertain. The impact of
the decision is also uncertain, since the wastewater escaped from the
defendant s land before seeping into the groundwater supply. The liability
of the defendant for pollution caused by discharge of wastewater and seepage
22
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of pollution into the groundwater occurring on the defendant's own land is
not directly addressed by the decision.
Although these two decisions seemingly apply stringent rules regarding
pollution of groundwater in Florida, both cases were decided before the
turn of the century and do not properly reflect the Florida attitude today.
The present more liberal attitude is more clearly reflected in the 1951
Labruzzo decision (35). As previously discussed, the facts in that case
presented a problem of diversion of underground water. But the rationale
of the decision is equally applicable to pollution of underground water,
since the court spoke in terms of use of land affecting use of water by
invasions upon the right to use water. Certainly the use of land in such a
way as to cause pollution of groundwater can be classified as an invasion
of the right to use water. The applicability of the rules expressed in
Labruzzo to either diversion or pollution situations is indicated by the
court's reliance upon both diversion and pollution cases in reaching its
decision.
Thus, it would appear that if one's use of his land causes an unin-
tentional invasion of his neighbor's use of groundwater by pollution of the
groundwater, liability will only attach if the conduct causing the pollution
was negligent, reckless, or ultrahazardous. But once the fact that one's
conduct is causing an invasion in the form of pollution of groundwater is
made known to the landowner, liability for pollutuion will attach if the
conduct causing the pollution is unreasonable under the circumstances.
Implications for Land Application Systems--
Possible pollution of groundwater supplies appears to be one of the
major problems faced by a landowner who is considering the application of
wastewater to his land in Florida. Since a major portion of Florida's water
supply is derived from groundwater, one would expect the rules governing
pollution of groundwater to be more restrictive than other water law rules.
The early Florida cases seemed to impose a strict rule when dealing with
pollution, but the present attitude seems to allow some pollution if the
activity is reasonable under all the circumstances.
The problem of pollution will, of course, be lessened by proper treat-
ment of wastewater before application to the land and by proper control of
the amount of wastewater applied to the land. Florida's administrative
guidelines establish extensive groundwater quality controls (60) and provide
that a subsurface drainage system may be required by the Department of
Environmental Regulation in order to prevent the groundwater table from
rising into the plant root zone (61).
The problem of increasing the level of groundwater has been addressed
in Florida and a reasonable use rule was applied to resolve the problem.
Thus, even if the water table was raised by the application of wastewater
to the land, the effects on surface drainage would result in liability only
if the application of wastewater was unreasonable under all the circum-
stances. Under the Florida guidelines, application of wastewater can be
coordinated with the seasonable rainfall, plant utilization of nutrients,
infiltration capacity of the soil, and use of existing groundwater for
23
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irrigation in order to minimize the effects on the water table, and an
underground drainage system could also be utilized in areas where the ad-
verse effects on drainage would place an unreasonable burden on neighboring
landowners (62) .
In addition to the general precautionary steps set forth in Volume I
of this report under the law of groundwater in riparian states and for
Arkansas, the following requirements are specified in Florida's administra-
tive guidelines:
1. Subsurface drainage systems, where required, must be designed so
that the water table is drawn down to provide for a minimum of 36
inches of unsaturated soil thickness during the time when irriga-
tion is not practiced (61) ;
2. An application rate in compliance with "conservative" hydraulic
application rates, which will typically be up to an average of 2
inches per week (63) ;
3. Multiple ponds must be maintained to allow for alternate loading
and resting (64); and
4. Groundwater monitoring is required in the area of the system, with
a minimum of one groundwater well established in each expected
direction of groundwater movement away from the land application
site (65).
Summary
favorable to land application of wastewater. In
^^
« ...
^
lated includes "...any and all practices which result in the dlschaS! of
domestic wastewater effluents on, above, or under the surface of thelround
except direct injection, ... into] confined aquifers "(In Q«L?f?
cally, land application "...will include ... land irri^tionLthods such
assaying, spreading, furrowing, ditching, drainfields, and soaklge pit s . •
After establishing criteria for the groundwater .resulting from land
24
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being irrigated, basically secondary treatment and disinfection is required
(68). If golf courses, cemeteries, public parks, or lawns are irrigated,
then secondary treatment, chlorination, and a minimum of 7 days storage are
required (69). The requirements for pasture land irrigation are the same as
for fodder crops, with the additional provision that pastures irrigated with
effluent shall not be grazed by dairy cattle within 15 days after irrigation
(70). It is also expressly provided in the guidelines that irrigation with
effluent is not permitted on crops intended for human consumption, with or
without cooking (71).
The Florida guidelines also have extensive criteria pertaining to the
design of land application systems. In addition to the requirements pre-
viously noted for buffer zones, prohibition of runoff, subsurface drainage,
any hydraulic application rates, the guidelines control the location of
sprinkler systems (72) and the design and location of holding basins (73),
recharge ponds and wells (74), and percolation ponds (75).
GEORGIA
Law of Natural Watercourses
Description—
Georgia is a riparian theory state and has followed the reasonable use
branch of the riparian doctrine since at least the middle of the nineteenth
century. In Georgia's first case of record involving water rights, Hendrick
v. Cook (76) the plaintiff sued to recover money damages on account of the
defendants' construction of a mill dam that raised the water level 10 inches
on the banks at the site of the plaintiff's mill shoals. The plaintiff
sought to introduce evidence of diminution in value of his property because
of the loss of the potential usefulness of the shoals, but the trial court
disallowed the evidence, holding that there was no right of recovery unless
the defendants had caused the water to leave its natural channel. On appeal
to the Georgia Supreme Court, the defendants argued that they had a right
by prior appropriation to throw water upon the plaintiff's shoals, but the
court rejected this doctrine in favor of the riparian doctrine C77). The
court held that the defendants, as riparian owners, had an interest in the
flow of water in the stream, but that they did not have the right to use
that water to the prejudice of other riparian owners. The court emphasized
that riparian owners had equal rights to the waters of the stream.
The Hendrick case established a framework for the Georgia law of
natural watercourses that exists to this day. In 1860 Georgia codified its
riparian law; the codifiers treated Hendriok as establishing a strict
reasonable use version of the riparian doctrine (78). Thus, Georgia became
somewhat unusual among riparian states, in that its riparian law stems to a
great degree from legislation rather than common law. In addition, unlike
the relatively limited holding in Hendriokf the statutes enacted in 1860
were broad enough to prohibit all unreasonable interference with riparian
rights. These enactments, although modified over the years, continue'in
force as part of titles 85 and 105 of the Georgia Code. The basic statutes
are as follows:
25
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Sec. 85-1301 — Running water, while on land, belongs to the
owner of the land, but he has no right to divert it from the
usual channel, nor may he so use or adulterate it as to
interfere with the enjoyment of it by the next owner. (79)
Sec. 85-1302 — The beds of streams not navigable belong to
the owner of the adjacent land; if the stream of water is
the dividing line, each owner is entitled to the thread or
center of the main current.... (80)
Sec. 105-1407 — The owner of land through which nonnavigable
watercourses may flow is entitled to have the water in such
streams come to his land in its natural and usual flow,
subject only to such detention or diminution as may be
caused by a reasonable use of it by other riparian pro-
prietors; and the diverting of the stream, wholly or in
part, from the same, or the obstructing thereof so as to
impede its course or cause it to overflow or injure his
land, or any right appurtenant thereto, or the pollution
thereof so as to lessen its value to him, shall be a tres-
pass upon his property. (81)
Section 85-1301 of the Georgia Code establishes a riparian owner's
property right in the flow of water in the stream and section 85-1302, in
turn, bases riparian rights upon ownership of part or all of the bed across
which water flows. Sections 105-1407 and 85-1301 appear to overlap, at
least in part; however, section 105-1407 proscribes many of the activities
excluded from the riparian right by the former section 85-1301 (82).
Riparian owners have a right to the stream' s natural flow under section
105-1407, subject to reasonable diminution or detention by other riparians,
,
85~1301 flatly Prohitits diverting of the stream's
S6CJ vS f 6 read llterally> "hat a riparian plaintiff must
If H f "5 th\label ?laced on the conduct of the defendant
DlnH m ,- v engaged ln S "detentlon" or "diminution," the
has "diverted" S°Ve I 6 d^endanc's use ^ be unreasonable; if def indent
has diverted the water, the plaintiff need only show that the use is
^r^the^lSnriff^srT^i6- * the d^endant his "obstructed" the
-^a^
material injury, and a lessening in value. adversity,
26
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with a defined channel and banks, although it is not necessary that water
flow through the watercourse at all times (84). A more recent Georgia case
held that a sand slough with sufficient current to float logs only during
six months of the year was a stream (85). While a natural watercourse
envisions water flowing as designed by nature, an artificial change in the
natural watercourse can become permanent and result in the treating of the
stream as a natural watercourse (86).
Although Georgia is a reasonable use jurisdiction, there are few
decisions specifically determining what uses are reasonable. Reasonable-
ness of the use is said to be a question of fact for the jury (87), but it
is possible to draw some distinctions between different categories of uses,
both in terms of the type of use—domestic, irrigation, manufacturing,
etc.—and in terms of the use's impact on the watercourse—consumptive,
obstructive, polluting, etc. Despite the intricacies of section 105-1407,
there are Georgia cases applying a general reasonable use analysis to cases
involving detention or diminution of water (88), diversion onto a lower
riparian's land (89), obstruction causing overflow of an upper riparian's
land (90), or pollution (91).
The Georgia decisions approve several types of consumptive uses as
being reasonable, depending on the factual circumstances of the particular
use. Domestic use is an approved use (92), although, unlike some other
riparian states, Georgia has never given domestic use any priority over
other reasonable uses (93). Irrigation is also an approved consumptive
use, although the only expressions of this are dicta (94). Other than
these occasional general references to the reasonableness of irrigation, no
Georgia case delineates the extent of the right to irrigate with the waters
of a natural watercourse. As in most states, nonconsumptive uses are more
likely to be approved as reasonable by the Georgia courts. Included within
this category are uses which temporarily retard or accelerate the natural
stream flow, or which affect the quality or consumption of the flow.1 In
Pool v. Lewis (92), for example, a temporary obstruction of flow to allow
the defendant to repair his mill machinery was said by the court to allow
no cause of action to inure in the plaintiffs. On the other hand, other
Georgia cases have found conduct unreasonable which increased the velocity
of stream flow by removing a natural obstruction (95); Increased the^
velocity of stream flow by adding other waters (96); injured the plaintiff s
land by causing an overflow (97); or polluted waters, thereby rendering the
other riparian land less valuable (98).
The Georgia law of remedies contains a few unusual aspects that relate
to the possible liability of an on-land application system. As in other
riparian states, a potential plaintiff in Georgia could seek either injunc-
tive relief or money damages. To achieve any recovery, the claimant must
be riparian with respect to the interest invaded and must show some defi-
nite injury or probability of injury. A riparian owner is, in the usual
case, an owner of land bounded by a watercourse or lake or through which a
watercourse flows. Although Georgia has no case law considering the geo-
graphical scope of riparian land, that is, whether it is limited to land
within the watershed or whether riparian land once severed can ever regain
27
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its rioarian status, the Georgia cases broadly include the owners of any
Interest in land, including tenants at will (99) and individual joint
tenants (100), as potential plaintiffs.
The first unusual aspect of Georgia's law of remedies is that, com-
mencing with the case that is the state's source of riparian water law,
Hendriok v. Cook (76), Georgia has held that injury to a present use of
water is not a necessary element of a plaintiff's cause of action. Rather,
relief can be had for harm to a right to future use. Thus, in MoNabb V.
Housev (101), the Georgia Supreme Court enjoined a miner from diverting a
substantial part of a stream's flow, which was alleged to harm the plain-
tiff's downstream mill. Although the defendant argued—and offered to
prove—that the amount of water diverted did not harm the plaintiff's pres-
ent use of the stream and that the plaintiff did not complain when the
defendants were constructing their ditch at great expense and with the
plaintiff's knowledge, the court said that these considerations were ir-
relevant and that the technical trespass warranted the grant of injunctive
relief.
This protection of possible "future uses" means that a plaintiff could
recover damages or even obtain injunctive relief in the absence of any
proof of a present injury. This rule, although more consistent with the
natural flow rather than the reasonable use theory, remains firmly im-
planted in the Georgia case law, despite abundant scholarly criticism
(102). There are many examples of injunctions as well as money damages be-
ing granted to protect rights to future use (103), which, of course, broad-
ens a water user's exposure to potential liability.
Several other aspects of Georgia's law of remedies are worthy of brief
mention. Two factors that limit possible liability of water users are that
Georgia cases establish a strict standard for proof of causation of the
plaintiff's harm by the defendant, and where the defendant's alleged con-
duct involves pollution, section 105-1407 (81) of the statutes clearly
requires proof of a lessening in value of the affected property. This
statutory requirement will also tend to minimize claims of interference
with vested rights to future use allegedly caused by pollution, because the
interference will have to be tied to a present lessening of property value.
On the other hand, increasing the possibility of a water user being
subject to injunctive relief—rather than just money damages—is the fact
that the Georgia cases appear to reject two of the strongest defenses
against possible injunctive relief—the doctrines of "balancing of the
equities" and of "laches."
Although there are not any specific holdings rejecting the balancing
of the equities doctrine, the Georgia Supreme Court, in supporting a grant
of injunctive relief, said in 1919:
It would seem to be a misapplication of the doctrine to deny one
his equitable rights solely upon the ground of inconvenience to
the opposite party or to the public. Neither the opposite party
28
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nor the public has the right, legal or equitable, to invade the
clear legal rights of another. (104)
This language, although not delivered in a factual context directly
to our typical situation, indicated rather clearly that typical "equitable
factors, such as the economic status of the parties and the community, were
irrelevant once a plaintiff established a right to an injunction. The
Georgia courts have never repudiated or significantly qualified this posi-
tion, although there are occasional cases in which injunctive relief has
been denied.
Any infringement with a plaintiff's water right in Georgia is compens-
able in a suit for money damages by a least nominal damages. In addition,
however, any consequential damages that flow from the offending conduct are
also recoverable. As is the case in most riparian jurisdictions, Georgia
follows the rule that for permanent and non-abatable harm the measure of
damages is the decline in market value of the affected land (105); and for
continuing, but abatable harm, the proper measure of damages is the loss
of rental value (106). Specifically, items for which recovery has been
allowed have included expense incurred in minimizing harm to the plaintiff s
property, the value of lost crops, and annoyance and discomfort. It is
generally said that a plaintiff has no duty to mitigate his harm, and if
the defendant's conduct causes an increase in the value of the Plaintiff s
property, the defendant cannot use this to offset the harm caused by the
nuisance! although in such a case the plaintiff, of course, cannot recover
for decline in market value (107).
Implications for Land Application Systems--
The Georgia law of natural watercourses does not distinguish between
the different types of land application systems. The law is concerned
instead with the effect of any proposed use on the quality and quantity of
the water flowing in a natural watercourse, and on the uses that may be
made of that water by other riparians.
With regard to the possibility that an application system will inter-
fere with the flow of a watercourse, Georgia law has generally favorable
implications. A land application system, unlike more typical methods of
irrigation, would probably be considered "nonconsumptive in Georgia; and
uses bearing such a label are more likely to be held to be reasonable.
Relative to the possibility of trace contaminants draining into a
natural watercourse, it is clear that there can be liability in Georgia 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. Although, in theory, an injured downstream landowner
could receive either money damages or an injunction as relief, the likeli-
hood of either type being awarded is remote. It should be noted, however,
that due to the unusual aspects of Georgia's law of remedies, money damages
and/or injunctive relief, while a "remote" possibility, are slightly more
likely to occur than in other riparian states.
29
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If the land application system is being carefully operated, and the
only pollutants returning to natural watercourses are those unavoidably
remaining after application, then it is unlikely that the entire applica-
tion system would be enjoined from further operation. Since Georgia has
not specifically approved the balancing of the equities doctrine it is
possible that a Georgia court could refuse to consider, in an action for an
injunction, all the facts relating to the reasonableness and usefulness of
the application system. Given the express regulatory approval of such
systems, however, such judicial obstinance seems unlikely.
as r.;-=r.r=--;s s
r r a STS^S-S :usrs:i.'s vs
s_
established J''7 *"' *«*«"*"
estabished t £
Natural Resources (108) for contrail?™ »ivisi°n, Georgia Department of
irrigation. Although Lh compUance Sl^tT er1dlSp°Sal ^ 3^
all liability, proof of compliance wUh the st±' ** *he °Perators from
would be strong evidence of^asonaSenessYf'thl
Law of Surface Watery
Description —
The Georgia law of surface waters can V,OQ* v
ing it in three parts: (1) cases iSolvEa ? J I understood by consider-
ee pars: cases iolva
either acceleration of flow by an upp£ 1«§/ nterference w^h natural flow,
a lower landowner; (2) cases LvolX ™n ^ ? obstruction of flow by
cases involving the 'right of a Sdo^er t^an^ °f,SUrface ™*<**'> and '&
his land for his exclusive benef icuTuse T*lT0l?* T^" WaterS °n
most of the law in this area is judicial and ,niY ?Vlparian 8tate8'
involve the first category. Juaicial> and most of the reported decisions
interference with - one e&rly
30
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opinion, emphasizing a need for land development, applied a version of the
common enemy rule, Georgia, before the end of the nineteenth century,
expressly adopted the civil law doctrine under which each landowner is
obligated to receive only the natural drainage from higher lands (109).
Under this view, the upper landowner cannot increase the flow of surface
water by artificial means, and the lower landowner, in turn, cannot obstruct
the natural flow by artificial means. The lower landowner's duty is limited
to receiving the natural flow only; the theory being that a person who
profits by improving his land should bear the cost thereof including the
cost of any harm caused to adjoining landowners by artificial alteration of
the natural flow of surface waters.
This basic civil law view remains the Georgia law, and remains remark-
ably free of qualifications, unlike the situation in other former civil law
states. Although there are two opinions that could be read as i"ipliedly
adopting a reasonable use analysis (110), most Georgia cases consistently
hold that, regardless of the reasonableness or usefulness of his purpose,
an upper landowner who increases or alters the drainage is liable to the
lower landowner for any damages caused (111). Thus even minor "-"ere,
such as landscaping or construction of a driveway have been the source of
legal liability where they altered the patterns of surface water discharge
over lower lands. The supreme court recently reiterated the other side of
the civil law rule, that the lower landowner may not obstruct the natural
flow.
Given this firm insistence on the civil law rule, it can clearly be
said that if an on-land application system altered surface water patterns
by accelerating flow to lower lands or obstructing flow from upper lands,
there would certainly be liability under Georgia law.
PnnnMnt, of Surface Watere-Although there are no Georgia state cases
directly in point, the usual rule in other riparian states is that a land-
owner can be liable for polluting diffused surface waters to the same
extent that he can be liable for polluting a natural watercourse There is
one Federal derision relating to Georgia which supports this analysis
(m)?Ind it seets likely that any pollution of surface waters could incur
liability in Georgia, but only under a reasonable use analysis.
Appropriation for Beneficial Use-Even though the authority is scant,
it appears to be the rule in Georgia, as in most other states, that the
possessor of land has an absolute right to appropriate to his own use all
surface waters coming onto or found on his land There is a statement in
Phinizy v. City Council of Augusta to the effect that ...the surface water
which falls from heaven over land and has not got into a stream, belongs to
the owner, and he can use it or turn it at his pleasure (113). Although
his statement was not necessary to the holding of the case it probably
still reflects the Georgia law. The lower landowner s servitude or duty to
receive the natural flow from the upper land does not include a reciprocal
right to insist on the continuation of the flow against the wishes of the
upper landowner.
31
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Implications for Land Application Systems--
The Georgia law of surface waters makes no distinction between the
several different types of land application systems. Georgia's law in this
area is sparse, and is primarily concerned with the right of one landowner
to discharge surface waters across the land of another. The Georgia law
atLnf T \fSrra^e implicatlons for land application systems in situ-
ations where both pollutants and diffused surface waters are retained at
bothTi ^ ;< U h^ somewhat less favorable implications when
both substances are dispersed to adjoining lands
trace oLuMon „ u "b ilSJSl "iT" rV" ""> ^'^ of
rule so aoolied F™ De<.en:loinafle- In no riparian state, however, is the
,
reasonable uses in iLrl, ?S USe' Slnce land aPPl^ation systems are
^£^£»^ £=.- land
for
the natural watercoue category.
±S
of "-"Uity for interference with the flow of
lutants'on its property Is tS ? b?th/urface waters and trace pol-
right to surface waters; ht cannot'nsist ^r/0" nOt h&V6 any "P^
upper landowner-in this case III linl ?? e±r continued fl°w. The
collect all surface water on its property! * SyStem~can wlth iraP
thf Lrfacf Sjl' ^ rf°— dations for land application
rac
I of this report and previouslv S Sf ^f f°r riParia" states in Volume
addition, spLific re uirem^t ; u h^as tSTESoX*7 ? Grr8ia* '^ ,
Department of Natural Resourses "Criteria" MftS^J?8* °Und ±n the Geor8ia
land application systems on surf ace waters : C°ntro1 the impaCt °f
1. Grades
2.
'6 ^"
intercepted runoff then reed
32
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Law of Groundwater
DeSCrGroundwa"ter located in underground streams is treated as part of a
"natural watercourse" by Georgia law. All other ^^^^^.
, j _ii~,4 "noT-nnlat-ine waters. Georgia law contains a
or-mirion t-nc»eit"npT and CS-LJ.eC! peiuuj.oi.iii6 w*»ww«- w •»•» _!.•_..
groupea togetner d"u ^*£n the wse of percolating waters and the pollut^on
of such waters.
As far as use of percolating waters is concerned GJoJ%?f«^lly
followed the rule of absolute ownership. In SoMl^ V. Lee (lib;, tne
_ i ^ _ .L. ^ ^ .A ,J ^ Vi « i~ r\£i>'
.
Georgia Supreme Court broadly stated that percolat ^ «»*« 'rf^a the
filters from the land of one proprietor into that °f,,a^er> g£%£j
latter no rights thereto which the law can recognise <£*>; ™ H^ In
statement of absolute ownership was somewhat qualified in later cases In
Saint Arrund v. Lehnan (118), the supreme court recogn ized that thejule of
.
absolute ownership did not apply
wasting or diverting P^^^'sSteanMn water by a landowner
supreme court reiterated that o^vjury w ouu -.^..-j ,.„ rpdreaa unless
doLg lawful aqts on his own P^-^^^J^Sd^n"^
either the injury was "^J*"1^'^ betweL a stream and per-
well-defined stream. Final lj. the dl stl nction ^
colating water was emphasized i» ^ land had a right ?o the flow of the
held that, while an owner "friparlan land had J he h&d no -
watercourse subject to reasonable JJJtSted Lbterranean waters before they
complaint if the upper lan^r"^S^^d ?he stream to stop flowing.
reached the stream, even though that causeu
f ^f^nlatins waters on a landowner's land is
Thus, as far as use of Per^ff J£e of absoiute ownership subject
concerned, Georgia "JJJ^Y^^ the use must be "lawful;" (2) the
to a least three qualifications. W t waters ffiust not be
landowner must not be actuated bj^£»t£8e factor a necessarily impart
part of an underground stream. Al ^oug ^ ^^ gtopped ghort
elements of reasonableness » ™^*naijllej ln the case of interference
of adopting the reasonable us^ ^^^.^uhough these cases leave the
with the waters of a natural ™t«°°«£; g*a Jn the case of major users
:rs^f tS^^ aii-iated by the passase of
the Groundwater Use Act of 1972 (121).
A£ter definins '
of water da ^ ""ed that the ithdravm water is
granted when sufficient evidences P adopting regulations and
™ consider ^ifa «Jn / s reared to consider a variety of
33
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factors, including the number of persons using an aquifer, the nature and
sr- -- ^
f
^^
^^^
wm not affect - ai "
" gr und^er " Sanf £ * !"
of groundwater frofpolluti™ L groundw A§ Ge°r8±a' disti»Sui^ use
modified "absolute oLrsSp" °Lw regarding* use of ^ f°11OWS *
any of three theories reeardin* ™ii !? ! groundwater could adopt
tion was exempt from leg!l redress to the gr°Undwate" the evidence
that the company's tanks leaded and that ll^To^ ^^ ^& bare fact
defect, it may be that there wouW be littS ^^ W&S Un&ble to cure the
Georgia, if a theory of strict liabilitv £ dl1f1ference ^ result, in
waters was adopted. ^ability for pollution of percolating
riuld occur ***
It is most probable that liability would be II H ^ °f percolating waters
negligence or nuisance, under either of J£ * t °nly On theories of
alleged offending conduct would be relfvlnt I ^r°nable^ss of the
tions on recovery discussed in connection with r add^°«> other U«Lta-
watercourses, such as the plaintiffs obi ^^? Georfia's law of natural
applicable to a lawsuit involving' e^cSaKg^Lr Pr°°£'
34
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Implications for Land Application Systems— ,nf
The Georgia law of groundwater does not distinguish between the dif-
ferent types of land application systems. Instead, the law is primarily
concerned with landowners' competing rights to use such waters, and
secondarily with the consequences of pollution or corruption of such waters.
With regard to the possibility of trace contaminan ts reaching ground-
water supplies, Georgia law has reasonably favorable implications for
establishment of land application systems. Since Georgia does not apply
the reasonable use rule to groundwater other than that locat *d *n ^1
ground streams, the legal analysis in this area is somewhat dif ferent from
the principles applied to natural watercourses. The differences, however,
tend to make liability even less likely than in the natural w^rc
-------
inches per week and 1/4 inch per hour, in order to prevent
compaction of fine soils, damage to crops being sprayed, and
excessive ponding (129); and
4. Groundwater monitoring is required in the area of the system,
including parameters such as total nitrogen (including organic
nitrogen, ammonia, and nitrates), total phosphorus, heavy metals,
chlorides, sulfates, suspended and dissolved solids, alkalinity,
hardness, and pH (130).
Summary
Unlike most riparian states, Georgia has specific guidelines, "Criteria
for Wastewater Treatment by Spray Irrigation," promulgated by the Department
of Natural Resources for controlling certain methods of on-land application
of wastewaters (108). The "Criteria" applies only to the disposal of
domestic sewage and to spray irrigation. Spray irrigation is defined as
the controlled discharge of treated wastewater by spraying onto land to
support plant growth (131).
Department of Natural Resources engineers use the "Criteria" as guide-
lines in determining whether to approve particular spray irrigation systems.
Because it is recognized that the state-of-the-art for design and operation
of land disposal systems is developing rapidly, the "Criteria" is intended
to be flexible, and, as a consequence, frequent revisions may become neces-
sary as more is learned on how the various systems perform in Georgia
climate and soil (131). Several revisions have been made in the "Criteria"
over the past few years.
The "Criteria" is divided into six sections that pertain to procedures
for approval, engineering report format, engineering design guidelines,
plans and specifications, operation and maintenance, and monitoring re-
quirements. The most extensive section relates to engineering design
guidelines, which impose numerous requirements. All domestic wastewater
must receive biological treatment and disinfection prior to disposal (132)
and a holding pond must be provided with capacity to store at least 12 days
of wastewater flow. The pond must have a high water alarm, and only
treated wastewater may be discharged into it (133). Also provided in the
engineering design guidelines is the application rate. This rate may
not exceed 2 1/2 inches per week, and to prevent damage to crops being
sprayed and compaction of fine soils, it may also not exceed 1/4 inch per
hour. In addition, it is generally stated that spray irrigation should
normally be carried out only one day a week on a given parcel of land,
allowing 6 days between applications for the soil to dry out and reaerate;
and that, as a consequence, sufficient acreage must be available to permit
discharge to each section on only one day a week (129) . Grades on spray
fields are limited to 15 percent grade for sodded or cropped areas and 30
percent grade for forested areas (114).
The engineering design guidelines also contain a number of specific
requirements relating to distribution of effluent, use of fixed and movable
36
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.. .
feet wide must be established to prevent spray ffm.^a^2 residential
the site, direction of groundwater flow, and seaso*^ J*^1™^ £ji be
It is further provided that, in most cases, spray irrjga^™ **f r*m5n a"
limited to sites where the maximum elevation of groundwater will remain
least 5 feet below the surface of the land (128).
Operation and maintenance requirements are les%
engineering design criteria. Basically, the owner of
a complete operation and maintenance manual f°* th*
an jssr1^
cedure of inspecting and cleaning t*16/? T^Vr, „ nrncxrams and oro-
tion during adverse weather or high winds, *oni^f f.f^rams and pro
cedures, and other items pertinent to management of the system
The monitoring requirement^^
monitoring the wastewater treajment . ^^"e site and any surface waters
the site, the soil and vegetation within the site and 7 ^ flw
recharged by the Sroundwat" J™*^ !"nts determine the danger to other
and the location of natural discharge P°^ and number of groundwater
groundwater users in the area and tne P^ shallow well upgradient or
site
thin the site and cwo wexxo «~«-e
required (130).
Certified reports of
be submitted before commencement of the spray irr g J^^ ^
thereafter be fbmlttf .^.^^Llysis for total nitrogen, suspended
quarterly samples must include an^ys chlorides, dissolved
solids, PH, and £ec'l ^£^tjf£8? bl monitored on a monthly basis.
solids, potassium, and heavy metals must x oject basis (130).
Additional parameters may be required on an -LU
« 11 .u "rvii-pria" provides that the Georgia Water Quality Act
Finally, the Crite^ia.^°^r Water Quality Control (138) govern the
(137) and Rules and Regulations for Water Qu y ^ o£
procedures for submitting plans and speciticat fnformatiOn required
37
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and specifications include general climatological data; a description of
the general topography, geology and soil types; depth and general quality
of groundwater; general land use; design criteria; results of soil boring
tests to determine percolation rates; and data on water and nutrient bal-
ance to determine application rates (140).
The combination of Georgia's specific regulatory guidelines and under-
lying water law are not as favorable to on-land application systems as
those found in some other riparian states. Stringent requirements in the
Department of Natural Resources' "Criteria," while less restrictive than
the Arkansas administrative regulations and informal guidelines, would
certainly have a tendency to discourage wide use of land application systems.
Turning to Georgia's basic water law, which continues in substantial force
despite recent statutory enactments, we find that it is not particularly
receptive to changes in water use patterns. In the natural watercourse
area, the ability of a plaintiff to obtain injunctive relief without proving
injury to' a present use and without consideration of the comparative equities
of the parties raises a small but definite worry for any innovative program.
In contrast, the Georgia law as it relates to percolating waters is favor-
able to land application systems, with Georgia's recent tendency to in-
crease regulation of its groundwater supply directed primarily at massive
consumers, such as pulp and paper mills. The surface water decisions,
however, like the natural watercourse decisions, are occasionally unfavor-
able, at least as compared to decisions in other riparian states. The
civil law view, which Georgia strongly follows, is the most restrictive
possible rule from the view point of an on-land application system.
Yet none of these problems are fatal, or even significantly harmful,
to on-land application programs. They just raise small but definite risks
if a fact situation, arising in Georgia, produced: (1) a system that
caused some pollution or other interference with water patterns, (2) a
litigious plaintiff who could prove decline in market value of his land,
and (3) a judge with a hostile or thoughtless attitude toward an innovative
use of effluent.
KENTUCKY
Kentucky is a reasonable use riparian state, without regulations
directly pertaining to land application systems. What makes Kentucky law
worth noting are its rigorous application of the doctrine of sovereign
immunity, and its stringent standards of proof for recovery in a case
involving alleged pollution. These strong defenses make liability an even
less likely possibility than in most other reasonable use riparian juris-
dictions.
Kentucky is one of the few jurisdictions that has specifically held
that a common law action of nuisance will lie in a case of alleged water
pollution even though the defendant has all necessary discharge permits
(141). The many defenses available to such a suit, however, make it very
unlikely that a well operated land application system could be found liable-
38
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Insofar as the systems will be implemented by
of sovereign immunity applicable in Kentucky will
operator cannot be sued without its consent unless a ^°^ S
is damaged to such a severe degree that it is '°^ld^ J^^^
without just compensation within the meaning of the United States and
Kentucky Constitutions (142). Only where Pri^^e^°^^ amounts to such
Sinl'is'the' stat?r^ri^ivrdTya::ctions 13 and 242 of the
Kentucky Constitution (143). A trespass amounting to a taking
. . .an interference with the legally 1™™**W*£B"
has been dedicated, which destroys that use or places a
tial and additional burden on the landowner to maintain that
use. . . . (144)
It is apparent that such a substantial interference with another land
owner' s rights is extremely unlikely to occur from the sort of
charges usually associated with land application systems.
Apart from the possible application -
it is a well established rule in Kentucky that stream or
liable for resulting damages to f^J £°d « ^^tidated Coal &
injures the land through which it runs (145). in "*> ( c t of
Coking Co. V. Lynch (146), the Kentucky Court of Appeals (the
Appeals became the Kentucky Supreme Court on January 1, 19 /bJ in
where a mining company created a ™Jsan'e ** ^^ carried to the lands
and near a watercourse, so that such substances were <*£ it was no
of a lower proprietor, rendering the Ian * u"*" *° ing of the mine.
defense that the proprietor did not object to the open g ^ ^
Hence, the failure of adjoining or oth«.rlj"£ ^ recovery for damages
land application systems will not preclude their later
resulting from pollution (147).
application systems would cause 8U"t^Je pollutants in the mining cases
lands to invoke liability since, unlike ^ involved in the land
that frequently occur in Kentucky, tne e^ possible that the lower
application projects will have been "eatea. e ef£ect§ £ron-a-ny
owner may even benefit, or at least receive n
residual wastes.
r r,r.i- recover from even a polluter unless
In addition a ™™££^ Coal Co. (148), the court
. ,
damages are proved. In cm^ f f of past or present damages to a
held that where there was a lacK or P poisonous materials from a
farmer's land resulting *°» ^^ ^ over the plaintiff's land, and
strip mine operation into a creek J plaintiff farmer was not
no reasonable Certainty of future damag,^ discharge into th£ creek>
entitled to damages ?r « ^"JjSS impregnated with copperas, slack, and
The judge admitted that water highly imp g ^ Uural
««t the plaintiff's farm was
purposes, but
39
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still as productive as ever. Since it could not be determined when and if
the land's productivity would diminish as a result of the pollution, no
damages could be awarded and no injunction could issue.
Certainly when damages are awarded the nature of the land or water be-
fore the pollution complained of occurred will be relevant in determining
fair market value (149). The previous integrity of the waters is also
relevant in determining whether injunctive relief is appropriate. In
affirming the injunction and damages award in the case of Perry V. Simpkins
(150), it appeared that a significant consideration in the court's decision
was the fact that prior to the defendant's discharge of pollution, the
stream was clear and free of any harmful substances.
However, looking to the previous character of the water produced an
opposite result in Kevil v. City of Princeton (149). There the court held
for the defendant because the water was already contaminated by prior
pollutants so as to render it unfit for the plaintiff's purposes. There-
fore, the plaintiff, operator of a waterworks plant, suffered no substantial
loss by the city's act of emptying sewage into the spring which flowed
underneath the plaintiff's plant.
It follows that recovery of damages should be limited strictly to
injury caused by the pollution of the party defendant (151). Further,
every element of damages for pollution which existed at the time the
plaintiff purchased the land must be eliminated from any recovery in his or
her favor. For the most part it appears that injury amounting to a taking
could not occur from the drainage of trace contaminants in agricultural
areas.
MASSACHUSETTS
Law of Natural Watercourses
Description—
Massachusetts is a riparian theory state (.152) , with the law stating
that the owner of land adjoining a natural watercourse has the right to
reasonable use of the water (153) and its free and unobstructed flow (154).
The definition of a natural watercourse was stated in a recent case:
...it must be made to appear that the water usually flows in
a certain direction, and by a regular channel, with banks or
sides. It need not be shown to flow continually; it may be dry
at times, but it must have a well defined and substantial exist-
ence. (155)
A small, well defined ditch which had been in use for over 20 years
was found by the Massachusetts Supreme Judicial Court to be a natural
watercourse with the attendant rights of flow to the landowner that pro-
hibited the ditch's obstruction by the adjoining landowner (156). Thus, if
any land application system causes either any runoff or, the opposite
40
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s. .«,..»»-
watercourses.
First, will land application of wastewater insofa, : as it uses^r may
use the waters of a natural watercourse, be '°ns""e° *J definition of
of the watercourse by an -PP^/^^^/^assachusetts courts began
"reasonable use" has been unclear since the Mas^^°" (153) in 1852.
dealing with the concept in Elliot v. JJ*^.*^^ "r diverting
In that case the plaintiff sue^th^^e"f^r^cer°he defendant's locomo-
a small brook in order to use the water to service cne rts
tives. The court used language that became typlcalof Massachuset
dealing with the question, stating that the defendant.
s
on various circumstances.
Traditionally domestic cases were most favored as
when extending to use of the *^ir* w "Hts status as a reasonable use,
cases dealing directly with irri*f i0* f * 3*^ legislative preference
several authors think that ^ss hu* ^otln of statutes
opn
to agricultural uses, for example, by its e y oses) from statutes
exempting small dams (presumably used for Arming p P
requiring safety standards or permits for dams (159) .
a i« Connection with a land application
Thus, the use of the watercSU^ereaSonaUe under Massachusetts law.
system will probably be construed as ««™?"® unlike several other
It should be added, however, that in ^rjcj;atural watercourse must be made
, atura wae
riparian states, the reasonable use °* an estate and within its watershed.
in connection with the landowner 8 rJJ*i ( 6Q) th defendant boys' school
In Stoatbon V. Mowt Uemon Boys Sc^ol ^' wrongful diversion of
was held liable to a lower riparian mill own^atural watercourse for its
water when the school pumped water out ^^ ^ stream,g watershed.
domestic institutional use at a s«^ violate the proposition that
Thus, system planners should JJ*^11 watershed.
the use of the water must be e wn-uj.
-tn nrobably be found to be a reasonable use, and
Since irrigation will prob ably D to ^ irrigatlonal in
since land application sy stems wi 11 be c watercOurses, the second inquiry
nature in regard to thei r impa ct on na t wastewaters will affect the
will involve whether the land aPP"ca"°" liability to lower riparian
natural flow of a watercourse so as to forbidden under Massachusetts
OS) J«. -p. the question of whether a
41
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landowner could totally divert an entire stream for his own domestic use.
In addition, the Massachusetts courts have stated a fairly strict require-
ment that actual damage must be shown as a precondition to any recovery of
damages. In DiNardo V. Dovidio (161), the plaintiff landowner sued at law
and in equity to force the defendant adjoining landowner to reopen a ditch
that ran across the land of both parties. The court denied the request on
the ground that the plaintiff showed no actual damage. Similarly, the
owner of marshland sued the adjoining defendant for diverting the' current
of a natural watercourse by putting sand on his beach which the plaintiff
alleged caused a "scouring out" of his land in Nass v. Tom of Duxbury
(162). No recovery was awarded, as the court found that the plaintiff had
not proven a causal connection between the defendant's action and his
injury.
Since it is unlikely that any land application system would totally
obstruct the flow of any stream, a more important question involves its
possible effect on a stream's natural flow by diverting wastes in such a
manner as, perhaps, to interfere with stream flow short of a total obstruc-
tion. In this regard, the traditional approach of the Massachusetts courts
with ?f f?" ^ntended use of the stream must not "materially" interfere
with its flow (163). Recent cases have modified this rule somewhat. For
example, in one recent case a plaintiff downstream landowner's suit against
a developer was dismissed even though the trial judge found that the devel-
^ ? r! r 5 6 fl°W °f the waterc°^se by filling what was originally
swampy land in order to make it suitable for home development (164) . A
waterrnY™" ?! ^^ ^ *** r±8ht t0 increa^ the flow of a natural
cause of ^h ^ ^ A "' ™***** (165) ' The Pontiff's ditch backed up be-
water to £ f ^ f adj°ininS landowner's inadequate pipes which caused
to remove S I 1 plaintlf f ?s house« The court ordered the defendant
for incrLX™0^ f? ^ ^ Ms plpeS and did not Penalize the plaintiff
or incr™ f
modified thir ? f \ ThUS' falrly recent Massachusetts decisions have
±d V ™ interference with the flow of a natural watercours
flow 's^7 !^UmenJS J° Justify both an increase and a decrease
° *-
"*
festion re8arding natural watercourses and their relation to
S'Shr" T^" ^ c~t«^ant. which migS re^in
ght Subse1uentl drain in
K i . drain into natural watercourses
fication. ClaSSlfled as pollution' -d the possible effect of such a
of water an^011"? "' f3Ced the Pr°blem of industrial pollution
' In Pa*ke* v'
42
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injury of the plaintiff, who was a lower proprietor, and to make the water
unfit for use. The court noted:
It is true that there is in any large body of water a Purl-
-
such matter that the
must be a material
the water.... (167)
Similarly, the court in ****** V. Taft (168) Coined the defendant
h e*°™ &
mary, e c
mill owner from polluting the stream with soap, soda, *sh> ob use
the plaintiff's cows could not drink the water. Citing the reason able
rule! the court stated that reasonableness was a J- Jo^of^act.^H ^
the discharge was found to materially attect tne p J impaired the
to be unreasonable, whereas an action, ^lch°f ^a^a^usetts courts have
quality of the water would be reasonable. The «f"acnusec
also found that such pollution* « ^SS^.'SiSK t^t relief
continuing nuisance for which the P^^tiff is ent"1^ Jh are
on the showing of material injury (169). In ^"^SnS^t tS raise
cases indicating that Massachusetts will not al ^**46 fendant
the issue of the social utility of its ^«<* *£« that alfother tradi-
"balancing the equities" (166) However it aPP ars h at all^t ^ ^
tional equitable defenses would be avaiiaDJ.e cw UFF
junctive relief (170).
If an action is brought ^/ir^t^^1C^:\bhLaf:r":rmi;entti0n'
it appears that Massachusetts follows the usual rule that for p ^^
harm the proper measure of damages is the Difference in tn
of the affected land (171) and in the case of ^5*^^ and not be the
be measured by the loss in use or rental value to the owner, an
loss in salable value (172) .
While there are no reported Massachusetts decisions specif ically^on-
sidering the problem of trace ^"nlnants from ^Jf d for substantiai
of land, the emphasis in the reports Meci ions on th ^ ^^
pollution before an a^'V^Ud application system will not incur too
of operation, a well operated land applicatxon *y
great a risk of liability.
Implications for Land AP P"^^ ^ystern'might either slightly impede the
As noted, any land aPP^c*f™ain trace contaminants into the water-
flow of a natural wat J^JlSt JSwiSe effect, interference with flow,
course. With regard to the f1*" J°" ble implications. Any of the
£.srJ=r.|;:,;;Hl2:' ? hsdrs s^xs'"
SsSS s. srrssrf: sss .
43
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rar conclusion is
stream's quality * Prmarlly Wastes and' as a result, improving the
er f °f acti°n *>* * ••
being awarded against the system'™ 8lbjllt:y of dama8*s °r inactive relief
setts' failure to a^ly thHoctrin t °™ ±S T±te Sma11' **** Massachu-
troublesome, it is more than oS^^T 'f- ?alanclnS the equities" is
actual present harm imposed by the Malsachuf^ V^1^1* °f pr°°f °£
fanciful, or even an actual, but miSr invasion d*ClSi°nS- A technical,
8-e rlse to a successful cause of "
On the other hand, if afi-«r- ^r.^i ^
the land and are eventually washed So** 'V'T C°ntamlnant« "main on
that there can be liability in MassachuseV? ^^V^^'urse, it is clear
the waters of a natural watercourse ?his * substantial» pollution of
is "reasonable;" it being recognized th^ °C°Ur 6Ven wlth a u^e that
other interests and should compensate thc^T reasonabl* "ses may harm
operation. Although in theory the relief 7** aS P&rt of the cost of
could receive could include either monev H ^ JUred downstream landowner
the likelihood of either type ofreUef \ ?**** °r an ^J Action . in fact
If the only pollutants returning to natural ^ T"'6' ls «t'««ly remote.
ably remaining after application then it J Wat?rcourses are those unavoid-
applxcation system would be enJolneS rrn f " U"llkely that the entire
Massachusetts does not apply the balancing
requirement of proof o£
appy te balancing °Perati°n. Even though
requirement of proof o£ substantial poUuf/ *** eqUltles doctrine, the
the same purposes, in that it insures tllr CaUSing actual harm serves
minor harm to another water use? wiu ba ^T*^* USes Causin8 a^ «st
e ^J-o to continue.
? ,r ;:••»•'"="' »-
"" ™
=:
damages will
sij^
aere v^atious claims will be discouraged.
"
can be followed to
-------
further minimize any possible risk.
Law of Surface Waters
'""Massachusetts follows the common enemy doctrine of rights in surface
waters, which includes rain, snow, and any other precipitation. The land
owner has the absolute right either to prevent surface water which accumu
lates elsewhere from coming upon his land or to alter the courae of £«£e
water which has accumulated on his land or come upon his land from elsewhere.
In either instance the landowner may permit the water to flow upon the
adjoining land of another and cause damages to that land without being held
liable (173).
On the other hand, the landowner, if he wishes, also has the right to
collect surface water and use it for cultivation or any other lawful pur-
pose (174). The peculiarity in Massachusetts law is that the ^naowner n
this right on the condition that, if the landowner later decides to dis
charge the previously accumulated surface water, he cannot use anyso
artificial channel. Thus, when the defendant in Mahoney v Barrow (174)
collected surface water for use in irrigating his cranberry bog *>juch
height that it flowed onto the plaintiff's Coining land, he was not
liable since the resultant flow was not through an "'"J^^^
similar result occurred in Maddook V. City of Spnngfreld (175) when the
defendant's building of a sidewalk permitted surface water « accumulate
the rear of his lot and overflow onto the plaintiff's land. Again the
defendant was held not liable because he did n°VT^L^rPl^ntIf in
through an artificial channel. The court em phasited *^ *^ £'£££
turn could bar such water from his land, if he wished, under the common
enemy doctrine.
was channeled to be discharged onto
nuisance, the trial judge stated that tnere
involved' in an alternative method of disposing
difficulty, damage to purchasers of oth ^ ^'c°^mstances rendering the
financial cost, which would constitute special circum
injunction inequitable.
The landowner who does not collect or use surface water does have the
right to allow the water to drain into a natural «"™°™" 7
'"
acion is subject to the limitations of courses
limitations that the discharge should °«$e beyond he^ •^^^ not
natural capacity and that the land of adjoining r^ .
be materially injured (178). As in the natural ^tercourse area the
complainant landowner is required to prove actual damage in all cases
involving drainage of surface water (179;.
It must be noted that virtually all Massachusetts law involves the
-------
diversion or obstruction by a landowner of surface water coming into his
land either naturally or from the land of another. There are few Massachu-
setts cases involving the right of a landowner to lawfully use surface
water reaching his property, and no cases involving the discharge, either
intentionally or unintentionally, of trace pollutants into surface waters
which then flow across the land of another. The first proposition has only
been questioned in terms of the surface water reaching another landowner's
property by mistake. It is doubtful that lower landowners would have any
right to prevent the upper landowner from totally consuming the surface
water reaching his property for any lawful purpose. Riparian rights do not
attach to surface water until it reaches a natural watercourse, and in
riparian theory states, including Massachusetts, there is no cognizable
concept of "right" in water which would restrict consumption of surface
water on the land where it is found.
The second proposition, pollution of surface water, cannot readily be
handled under the common enemy rule or any of its variations, because the
common enemy rule is usually applied only to justify obstruction or diver-
sion of diffused surface water. A cause of action for the pollution of
surface waters would probably exist, most likely in cases where the contam-
inants were discharged through an artificial channel onto another's land.
Although the test which Massachusetts would apply in such a case to deter-
mine the scope of liability is uncertain, it is most likely that the various
limitations on possible liability already discussed in regard to trace pol-
lution of natural watercourses would apply.
Implications for Land Application Systems—
From the point of view of the land application system operator, it
would seem that Massachusetts law would absolutely allow the retention of
surface waters at the application site, under the traditional absolute
right of the landowner. If surface waters are allowed to flow off the land
containing trace contaminants, care would be necessary in order to ascer-
tain that the flow of any natural watercourses would not be greatly altered
and that the water would not be so polluted as to materially injure the
adjoining land. This finding would, of course, depend on the particular
land application system employed, type of soil, size and type of contaminants
present, etc. In general it will be preferable in Massachusetts to contain
both surface waters and trace contaminants of the application site, rather
than to allow discharge of both surface waters and trace contaminants
across the lands of other persons. This is particularly true if discharge
would occur through any form of artificial channel rather than by natural
structures and gravity.
If trace pollutants did escape from the application site along with
surface water, the extent of possible liability would be uncertain, due to
the relative lack of pertinent Massachusetts decisions, but it would not be
likely to be severe. Since, as is true 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 adjoining landowners, but the possibility of such liabillty
46
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is even less likely in the surface water category than it is in the
natural watercourse category. This is because, in addition to the require-
ments of proof discussed previously: (1) the potential claimants for harm
to surface water are almost always limited to the immediately adjoining
landowners, rather than including all downstream owners as In the water-
course 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 generally made of surface water, it is much more
difficult for a claimant to prove the loss of a specific use and conse-
quently, a decline in the market value of his land.
If, on the other hand, the system collects both surface waters and
trace pollutants on its property, there is no possibility of liability in
Massachusetts for interference with the flow of surface waters so long as
the accumulated waters are not later discharged, by means of an artificial
channel, across the lands of another. It is clear that, as the lower land-
owner has no property right to the surface waters, he cannot insist °n
their continued flow. The upper landowner, in this case the land application
system, can with impunity collect all surface water on its property.
The recommendations contained in the surface waters sec tj» *" Jjj
ian states in Volume I of this report and for Arkansas apply in Massachu-
setts.
Law of Groundwater
Very Uttle case law relating to groundwater exists in Massachusetts.
A distinction is made between a stream, which V1™?^^^ part
within limits or banks, and "percolating waters," which are consi dered part
of the land itself (180) . From this Distinction it appears that Massachu
setts follows the absolute ownership doctrine with »8£«* J° PJ™ °±^8
waters. One case held that an owner of land lawfully ^^^ Sp*"
above, as well as below the surface, to any extent which he pleases U81) .
Thus, an owner may dig a well so close to his neighbor • ««J1 «at he may
divert water from it and incur no liability (181). A <¥^f wa **y*^°la_
^^
(181), or where he negligently causes the pollut £» J « *
ss ^/jrsrSKjSr irSSstw s.
surface water; the owner can be liaDJ.e tor "a B. .- J,.h. wafpr ig
water is discharged through an artificial channel, or if the water is
artificially detained and backs up on another s land (185) .
TU *- ^^«i- pa«?P Qualifying a landowner's absolute ownership in
The most rec«V^!L2tt hif 2nd is Gamer v. Tom of Milton (186) .
the percolating water beneatn nis j-duu o.a ,._,_„«.-_ +.„ PVravatp in the
In this case, the Town of Milton employed a contractor to excavate in the
-------
area of the town pond. In order to complete the excavation, the contractor
pumped water from the pond, resulting in a 24-foot drop in the pond's water
level, with a commensurate lowering in the area's groundwater level. This
lowering of the groundwater caused settlement of and damage to the plain-
tiffs' homes. In finding the town liable, the court stated that the town
should have foreseen the consequences of its pumping, and, therefore, was
negligent for not taking proper precautions, such as digging observation
wells or using recharge wells. The court recognized the rule of absolute
ownership, but stated that the liability lies in the failure to take reason-
able precautions to protect the plaintiffs and does not involve questions
of the rights of ownership and use of water. Thus, there can be liability
where the extraction of percolating water is negligently performed, inde-
pendent of the use to which the water is put. Conversely, where the ex-
traction of percolating waters is performed with care, and the use for
which the extraction is made is lawful and reasonable, there can be no
liability.
Although there are no recent Massachusetts cases dealing with pollution
of groundwater, the fact that liability has been said to ensue only for
negligent or malicious pollution or destruction of a groundwater source
strongly implies that trace pollution caused in connection with a reason-
able use of the land will not be the basis of any liability without evidence
of negligence or malice. Moreover, while there are also no cases dealing
with the raising, rather than the lowering, of a groundwater supply, it
would seem that the same basic enunciated principles will apply and that
liability will occur only for proven negligence or malice causing actual
property damage.
Implications for Land Application Systems—
With regard to the possibility of trace contaminants reaching ground-
water supplies, Massachusetts law has favorable implications for land
application systems. Since Massachusetts applies a modified version of the
absolute ownership rule, liability is even less likely than it is under a
reasonable use rule. It appears that there will be no cause of action for
pollution in the absence of negligence or malice.
If the legal question presented is not one of pollution, but one of
groundwater recharge from an application site raising the water level of
the groundwater, the complaining landowner will have an even more difficult
time in attempting to sue the system's operators. There are no Massachusetts
cases allowing any recovery by a landowner if there is no provable negligence
in the operation of the system and no intentional harm being done.
To further minimize the possibility of liability for possible effects
on groundwater supplies, the steps set forth in the law of groundwatef
section for riparian states in Volume I of this report and for Arkansas
should be followed in Massachusetts.
Summary
In general, Massachusetts law provides a favorable climate for the
48
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development of land application systems. Although the absence of pertinent
regulations relating to surface application of wastewaters create some
uncertainty regarding legal requirements, the basic water law of Massachu-
setts in ail categories-natural watercourses, surface waters and ground-
water—indicates a receptiveness toward innovative uses of water such as
that presented by the typical land application system.
Massachusetts has detailed regulations governing subsurface ef fluent
disposal which are also relevant to those application *™
.
and not with the method of application of the treated effluent.
MICHIGAN
that in
Even though the law of Michigan ^\™\™™£~?'ortte Muskegon
other riparian states, the importance of the state because
County Wastewater Management System makes a brief analysxs of its law
worthwhile.
Law of Natural Watercourse^
^ 4- nftjn The Michigan cases define
Michigan is a riparian theory ^<*e (188). ™e ^ or periodic
a watercourse as a natural stream of wate* *?? . direction in a defined
natural sources and usually flowing in a particular «lrT
channel, having a bed and banks or sides, and usually discharging
into some other body of water (189).
Michigan distinguishes between domestic ^^^^ Sf.
49
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water for domestic purposes because of upstream diversion for irrigation
law without a Tral ^°W" C3USe °f aCti°n and Prevail under Michigan
;£
the
a use is "artificial"
the
unc ive reif l
but sucn a user t: 1 °nly
in the? irst olJ
to base a law'suit!
most
domestic us^r would have a "natural" priority,
bf, Usln8 the diverted wastes for domestic purposes
l* C™S *ot have any damages sufficient
theor5seof riparian ? ° ^^^ ^ ^ reasonable use
nai-,,«i I riPar:1-an law, Michigan, on most other points of the law of
" *
attributes'
attributes,
tO the watercourse and its
its size, character and natural state....
to
war
water,
use
the use
th Uantity'
the purposes of the users ____
the
benefits at
tive rights and inhere ts ri
on the interests of the State
and conservation. (19?) f
artificial
the
on the correla-
pr°Priet^s and also
Ashing, navigation,
a landow^er^an^rovf L^arbeefn3'1118/!!3' there ^ be "ability where
(188) , or pollution (194) of a naturT ^ Obstructi°n (193) , diversion
inactive relief of money damage are avail^86' In ^ SUCh C3Se>
ing party. In a suit for injunctive rel^f S remedies to the complain-
all the traditional equitable defenLf ^ however' Mighican recognizes
(195), laches (196), and ^nflTl^ ^fa^ **$?** »f the equities
Permanent
market value of the affec and (!98) It
damages will be measured by the loL'in'us °o
rule that for
dlfference ^ the
50
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Law of Surface Waters
Michigan follows the civil law rule with regard to surface waters.
Under this rule, a lower or servient estate owner must accept the surface
water from an upper or dominant estate which naturally drains onto his
land, but the dominant estate has no right to cast additional waters upon
the servient estate in such a way as to cause damage (200).
In a leading case, LeVan v. Hedlund Plumbing and Heating Co. (201),
the plaintiff sued the plumbing and heating company, who were adjoining
landowners, for damages alleging that it had, by depositing large amounts
of earth fill on its property, raised the level of its land to a point
where it would no longer accept surface waters flowing in their natural
course from the plaintiff's land, resulting in damage to the plaintiff s
basement and the machinery stored in it. In finding that toteu^^***
was negligent, the court, after citing the general rule, stated that ...the
average prudent man possessing knowledge of the natural surface water flow
should have known that the raising of defendant's land would cause water
problems for plaintiff and failure to provide for this was negligence
(202).
Michigan's reliance on the civil law rule could present problems for
an on-land^pli'tLTsystem that might change traditional surface water
flow patterns. A cause of action in nuisance would lie if the °n-land
application system caused the collection and discharge ^J^J"^"
across lands which they would ordinarily not cross, or caused their dis
charge at an accelerated rate of flow across lands they would ordinarily
cross.
It must be noted, in attempting to assess the precise Michigan^os tur • ,
that virtually all Michigan case law involves div***um orob **™*™*
landowner of surface water reaching his property. There «« ™ ^gjj ^is
cases involving the right of a landowner to j^^^TSSLJ
property. In this regard, however, it must be seriousxy f
lower landowners would have any right to prevent the upper land owner tr
making whatever use he pleased of £^^^^^£*?^ in
not attach to surface water until it reacnes a natu cotmizable
riparian theory states, including Michigan, there is no °Jher cognizable
concept of "right" in water that would restrict consumption of surface
water on the land where it is found.
Village of Sand Lake v. Allen (203) is the ^J^^tS^SStS?8
-
51
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Law of Groundwater
^C^?!"!!aS ad°Pted 5he r^onable use rule to
lower the water 1^5 during construction* ?°!?tructi»n "«"* in order to
the plaintiff homeowner 's well to golrv In ^ ""T ^ llne» CaUSlng
decision to award money damages^ Shigan '
tant areasforontion "" "" nOt fc— P°«ed to dis-
nent damage to' STSSS^ ^er^f7 r"""'' °f Per*a-
merely moved out of the area of S! Jf? ere> Water was
facilitate sewer construction T PUbllc easement ^ order to
opment of the public utilitv Impr°Vement and reasonable devel-
the surrounding areas iiwLrent reqUlred SUCh 8teP8' ^ to
line sewer buried on a public "°^Unr^asonable to have a trunk
for the areas when it was Jlattad f ' I" SUCh "Se Was ^tended
trunk line benefitteS the area as ' it ^ ' *** Sanltary SSWer
-surrounding homes to
tf - rle/ith - —
waters will be resolved in accordance wiS r? f°r ^nterf^ence with such
developed with regard to natural ™?!r reas°nable use analysis as
whether liabilit/for ^l^^0T^l^^' °T ^^ ^"lon is
the same reasonable use standard as is S*S?f /*?" W°Uld be 8overned by
Percolating waters. This question is r^ f 7 f°r exaes8^ «*• of
case law. 4 scl0n ls not clearly answered by the Michigan
cability be °f P«~Ktlng waters in
UpjoKn v. RiohT^ To^ O06) '? ^^ °f ^ rep°rted
ship board of health from locating a bur ?«l 'i SUlt tO restrain the town-
home alleging, in part, that such an ^ ? °f ne&r the Plaintiff's
local wells and contamination oTdrink? W°Uld CaUSS co^uption of
Court, in denying relief, held that w^e^n"' th%Michi8^ Supreme
is proper and non-negligent, liability will I T*<°* ** adJacent premises
positive and substantial Tn o Dlilty wil1 be denied unless the inlurv is
Development Co. (207 Ihe JLLSS."^!^1;1011' ""™?'> ^Uon
money damages for pollution'of their land Si'Si?™6' ^ hls wife' so^ht
by the defendant oil company on its Jmi I } W3ter Which was deposited
Plaintlf' Sroundwater up^ ^ de f^ Subse^-tly seeped
52
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surface of the defendant's land would eventually find its way to the
plaintiffs' land. The court said:
It was incumbent upon plaintiffs to establish by some means a
relationship between the contents of defendant's sump and their
damage. The burden of proof was not met, in view of all the cir-
cumstances, by a simple showing that defendant permitted salt
water to seep into the ground and that salt appeared at a dis-
tance of several hundred feet to the south. It was their burden
to establish this relationship, not by a guess of the jury, but
by the production of some competent testimony. (208)
In summary, it is probable that liability could ensue in Michigan if
an on-land application system resulted in pollutants making their way into
a subterranean water supply, although the plaintiff's burden of proof prob-
lems would be great. It is also probable that liability would be based
only on the theories of negligence or nuisance, which would allow room for
proof of the reasonableness of the defendant's use, and not on a theory 01
strict tort liability.
Summary
The basic water law of Michigan is not unfavorable to on-land applica-
tion systems. Statutory requirements are not restrictive to this form of
wastewater disposal. The use of the reasonable use rule in two ot the
three major categories of water, the absence of any theory of strict lia
bility, and burden of proof problems for those alleging damages all serve
to create a favorable legal climate for a well operated on;la^n^^^ati°n
system. The only possible problem area is due to Michigan s cont inued
reliance upon the civil law rule regarding surface waters, since on-land
application may alter the natural flow patterns of surfac* W^™°fficult
However, proving more than minimal damages in such a case would be difficult.
Michigan does not have rules ^^J^SSS Commission"
land application of wastewater; however, the Water *esou .,lde such
has adopted administrative rules that are broad enough to £c^ s£j
disposal systems. Rule-making powers in the funeral area of water P
were given to the commission by two sections (209) of the ^^ **
Resources Commission Act (210). The rules most concerned with on land
application are those relating to wastewater discharge ™'2
" " «
Discharge" is broadly defined as "^ £»%£ «f £ ion thereof ,
waste, waste effluent, wastewater or pollutant, or y "Waste" is
agricultural wastes" (213).
2-S
53
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promulgated pursuant to it, proceed on the assumption that after treatment
r-
streams and other waters of the state in relation i-n Ji uf!' rivers'
which they are or may be put..." (214) relati°n tO the Publ1^ use to
The administrative rules recmlrp a ai-*t-~ J4 u
addition, the rules impose limits on the ± f2lf^ ^ ^ ' ^
of the discharge (217), and recmire i-hp"™?! , } ' 1uallty a** quantity
ing of discharge qualUy and quality (2isf No &> rfC°rdln^ and ™^
requirements of these rules oJ with the t!L N°ncomPliance with the
creates a cause of action uLn ^ ? °f & validly issued permit
Attorney General may co^neeTcivil^cTi88'^ o/e<1UeSt' the Michi^an
injurious to public heaUh Lfett i ^ C W) ' Dischar8es which are
discharge of any raw sewage of hull "e^fare' including specifically the
the existence of publirnuisanceH V? 8 K' &re Prim /acie evidence of
general is empowered to SSnTTSi^t^'V^r6'' tb* a"Orney
tion for and compliance with the rln ? abatement (220). Applica-
Pursuant to these rul^ S ulf be^S icTenftf i& 'l """^ Permlt ^^
tion facility from legal liability? insulate an on-land applica-
Numbe tf^tcom:^ t££S?%? sl^T^ ^ >» A<
Upper Mississippi River Basin (Ml) „ euid^&8 ^ in the Great Lakes
the location of the land treatment f"iS^ JlT °^l' ^t& relatin8 to
tO°
reatment fi
hydrology, agricultural practices «S J?§ tOp°graPhy» s°ils, geology,
the aPPlication for an opera Jon ^^itundr^^ ^ "e tO
on itund
standards are suggested for 8oS. Sjpes II ?*, ******»»• Specific
ogy, treatment of the effluent before dis^sll l^^1 practic^, hydrol-
sprinklers, location of the sprinkle? syste"' P^Pin8 the effluents to the
warning signs. Secondary treatment or i^ ' ? f™ run°ff' fencing, and
S1 Iaf 6WaterS that ar« spraj irrigated iL^l^T^ ±S 8u88eeted; and
the Addendum. y lrrlSated should be disinfected according to
MISSOURI
r •«— rttt
54
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other natural or artificial conveyance (224). An application for a permit
must be submitted to the Department of Natural Resources prior to «P««£«
any facility that utilizes point sources. A hearing must be held prior to
the issuance of a permit to determine compliance with Federal and state
standards. Failure to meet the conditions defined by the department may be
just cause for denying the permit to the applicant (225).
Law of Natural Watercourses
In Missouri, as is true of other reasonable use riparian
there is not an absolute right of riparian owners to the flow
course in a pure and unpolluted state (226). If pollutants discharged into
streams result in only minimal pollution of the stream the Proprietor has
no cause of action. Only when there has been substantial damage that out
^
^^
a8e to the injured riparian.
users,
Since liability will occur only if a nuisance is created,
application system will be reasonably insulated from PossJ-bJ-e
Utilisation of effluents as fertilizer should not create hazar
ians if the Federal and state standards are adhered to
Process. Trace contaminants should cause little danger ._ --,_
because the proportion of the river waters compared to the prop
the pollutants should be great enough so as not to?£B^r ^y where the
Public health. Liability for creating a nuisance will °cc^ J lower
condition of the waterway becomes either a hazard to the M
riparians or an unreasonable interference with their desirea us
waters.
IjgVLQf Surface Waters
Pollution of surface waters which may be deemed un]l^s°™* ®
atitute a nuisance, and the injured proprietor can sue for damages
injunction (227). According to Young:
r i A v,ac ™ rieht to pollute surface water on
An owner of land has no right to P condition on the
his land and to allow it to flow in a p"-"- . f
land of an adjoining owner. Such action on his P"^^"
as it interferes with the possible enjoyment of the adjoining
land, involves the maintenance of a nuisance. ^
Eor pollution of frfa« »fers will not^lia ^^^L
the reasonable enjoyment of the land.
.
^
55
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course situation because the ratio of surface waters to the pollutants
might not be sufficient to preclude all possible injuries to persons con-
tacting the water.
Thus, Missouri property owners who utilize surface waters reaching
their lands would have a legal right to sue for injuries, permanent or
temporary, but only where the reasonable use of those waters is impaired.
On the other hand, it is not necessary that surface waters be discharged
across adjoining lands at all. The general rule applicable in Missouri is
that a proprietor has the absolute right to the use of surface water reach-
ing his land and that riparian rights do not attach to such water (229).
Therefore, surface water can be retained legally by a proprietor who chooses
to do so. According to Rychlieki V. City of St. Louis (230), liability for
collection and discharge arises not from artificially collecting the water,
but rather from discharging the increased volume in a concentrated flow
onto the lower land.
It follows that the system operators can legally retain the water at
the site to prevent possible pollution of dispersed surface waterl How-
ever, the operators must be cautious in their retention methlds becaSsI if
» r
or sandy (231) appication rates adjusted to fit whether the soil is clay
Law of Groundwai-pr
or diversi aan'wat^ri1118 P°SS^le Uability f°r obstruction
in Missouri -PeciflSSr^p^reuLrSI?1'! ^ "" ^ "* ^
reasonable use rule, the two malor .™ %! ab*olute ownership or the
which liability was Predicateron ne^r ?8^UleS* There ls one case ln
conducting blasting operations on the pl^ri"^. ^ °f gr°undwater b
implication it would appear to follow that to thl* I****** <232) * By
there would be no liability for interference with °f ~"«
elusion, however, has never been .plSS^i
the
Co. (233), thrcourtTeldllthatUoneCcou^ /? ^T"" Vm Amey^an Creosoting
pollution of a well or snrine in M,« au ! ""le in Missouri for the
liability in the absence of neeli± " °f ne*118«"S the rule of
court said it is necessary to So?e nLT?" Specifically "jected when the
taining a dam for ponding of water on hi ^ thS P&rt °f the One maltl"
court also emphasized that permanent damagel6™1863' ^ the Same CaSe' the
j *»c v»^. ^Lic JLZX t nc
56
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1 in question, would be available only if the well's
~ .H™.-. «».— ase was totally destroyed; otherwise only temporary
damages would be allowed.
This basic principle has been reiterated ^iLoTwith^egUgence7'
however, the Missouri courts have confused *uisance ^^ uncertaln.
theory (234), leaving the exact I**"8 « J"J the social utility of the
Under either theory, however, it is clear that tne attempt to
land application system could be proven in order to defeat y
obtain injunctive relief.
Sites should be located in stable f
subject to collapse or immediate inducement of effluent ^signing
'<**" 1 *
groundwater caverns according to the '<**£" J1 * Hydrologic capabilities,
Effluent irrigation Disposal ^terns in Missouri. Hydro g^ P.^
rainfall patterns, and site topography must also be con
Prior to establishing a land application system, it J
that all water wells in the area be f^^°^^^ frequency
Afterwards, monitoring is essential in ail case , disposal systems.
may be less for agricultural ^^£°£*\f£, vacuum lysimeters,
Monitoring may be done by sampling the Drainage w ^ ion of them is
or wells. If done by wells, locations, depth, and const
specified by the Department of Natural Resources (236).
In general, Missouri's basic wa e and compxexi<-y *«• -— —
with far less difficulty than the .extensiven panning and Designing
souri guidelines. Sites according to the *« , ghould be located close
Effluent Irrigation Disposal Systems in M1»°^ and pipe costs, and yet
enough to the effluent source to minim"ecp" iatTvely sparsely populated
be located in an agricultural area that is ^J.a /^^ Effluent samples
and likely to remain as such for a reasonao-L sodium, calcium,
„! ,,. _ . ^ .. .--i.-'i ananonaea. SOJ-ldo \*w/ > 1 j,,«c and
—"u iiK.eiy to remain ao ou»-" -— - i-lrls (TSS) soaiuiu, uoj.*.———»
should be analyzed for total susPended..^^ phosphorous, metal ions, and
magnesium, electrical conductivity, nl"°*ei' * effluents arising from
fluoride. Disinfection should be required or a included £or effluent
L_ . . _ . t..A mil /1O LineS Cti^ **" . _ . _« _.__4-«^1oH
e. snec nc
human sources (238) . Extensive guidel^cf /239) and plant characteristics
disposal in relation to soil characteristics U f or applicatlon
(240) , for particular methods of application w> >
equipment (242).
NEW YORK
, A «e .Hrectlv pertaining to land
New York does not have any ™^*^£r law of New York is reason-
le the basic water able U8e
ew or oes no r law o e
application of effluent. While the basic water ^^ reasonable U8e
ably clear and not noticeably di«e^fof °£e state justifies some review
riparian jurisdictions, the i»Portan;" Yfrk law formulates a Pontiff -
°f its law on point. In addition, New York law n states. while
Possible remedies somewhat differently than otheP^ ^ ^^ examining.
the ultimate substance is about the same, the
57
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As is true in other states, a land application system might indirectly
pollute water sources or inadvertently create a nuisance. Liability for
water quality impairment will depend upon whether the water source in ques-
tion is a watercourse or lake, diffused surface water, or subterranean or
percolating water. In New York, however, distinction must also be made be-
tween waste discharges into water which interfere with another's land, and
those discharges which interfere with another's use of water. Where the
defendant's discharge interferes with the plaintiff's use of water, the
plaintiff's cause of action is based on water pollution, involving his
respective rights in the use of the water. Where a defendant's discharge
interferes with a plaintiff's use of his land, and so "water quality" or
"water pollution" is not directly involved, the plaintiff's cause of action
would be based upon trespass or private nuisance instead. Thus, a plaintiff
may have three possible causes of action when he is harmed by foreign
materials discharged into water: (1) trespass on his land; (2) nuisance
for interference with the use and enjoyment of his land; and (3) nuisance
for interference with the use of his water.
Discharges of Wastes Interfering with Land
Trespass is the interference with the exclusive possession and physical
condition of land (243). Interference is actionable as an intentional tres-
pass if physical invasion occurs, regardless of the harm caused (244). New
York courts had no difficulty awarding damages for direct, recurrent, or
intentional trespass where sewage effluent piped into a drainage ditch
entered the plaintiffs' land causing flooding and rendering the land too
soft for plowing or grazing (245). Similarly, the court found a municipal
corporation would be liable for trespass whereupon completion of a culvert,
surface waters were collected into a single channel and substantially in-
creased the volume of water upon the land of an adjoning owner so that the
stream would fill beyond capacity and result in flooding (246). Thus, care
must be taken by system planners to retain trace contaminants upon the dis-
posal site as well as avoid constructing any artificial conduits which will
discharge an increased volume of surface water upon neighboring land. This
potential liability strongly supports limiting implementation of the irri-
gation methods to spraying or ridge and furrow techniques, rather than
flooding where grades would facilitate drainage or the soil porosity is not
conductive to rapid seepage. The more elaborate and expensive spraying
method of irrigation or the rapid infiltration method would in all proba-
bility be most acceptable.
It is worth noting that recurrent trespasses may ripen into a private
nuisance. However, unlike the trespass action for nominal damages, sub-
stantial harm or interference must be shown before an injunction would be
issued restraining annoying activities (247). Thus, it is unlikely that a
land application project could be enjoined for causing either minor incon-
veniences to neighbors or for the mere psychological annoyance of dumping
sewage without a tangible annoyance such as the emission of noxious odors.
Discharges of Wastes Interfering with Use of Water
As previously noted, the potential liability connected with the use of
58
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water depends primarily upon the type of water source affected.
Natural Watercourses—
At common law, the use of water for domestic or mill purposes was on a
first come, first served, basis. With the industrial revolution, water was
consumed and polluted in large quantities, giving rise to the law of riparian
rights, whereby riparian owners on a watercourse have equal rights in the
water's use (248). A natural watercourse has been defined by New York
courts as:
[A] natural stream, flowing in a defined bed or channel, with
banks and sides, having permanent sources of supply ... uniform or
interrupted ... temporarily diminished or suspended ... [but]
usually a stream of running water. (249)
When a natural watercourse exists, riparian owners in New York may
jointly and reasonably use it (250). If a watercourse exists, the reason-
able use rule applies (251). Thus, a landowner may use water flowing over
his premises in a natural stream for domestic purposes, irrigation, and•to
furnish power for his machinery, provided the amount used is reasonable and
not out of proportion to the size of the stream (252). The primary question
then is: What is a reasonable use under the conditions and circumstances
Presented (253)?
Surrounding circumstances such as the size and velocity of the stream,
the usage of the country, the extent of the injury, convenience in doing
business, and the indispensable public necessity of municipalities for
drainage are all factors in determining the reasonableness of a particular
use (254). In reviewing the correlative rights of riparian owners, the New
York Court of Appeals emphasized that, in the absence of public necessity,
it would not relax the general rules governing riparian rights in favor of
maJor industry (255). A lower New York court, reviewing elements of
riparian rights, indicated that discharging sewage effluent into a stream
when the usefulness of the stream to the lower riparian is impaired, is not
unreasonble per se. The court noted that while riparian owners do not use
the running water, they acquire rights to its reasonable use as it passes
by their land. This right is qualified by the rights of others to have the
stream substantially preserved in its natural size, flow, and purity and to
Protect it against material or unreasonable diversion or pollution (256).
A lower riparian may also maintain an action against a number of upper
riparian owners to restrain them all, although acting separately, from
Polluting a stream (257).
Thus, an application system might affect the rights in use of natural
watercourses in two ways. First, the land application treatment could
reduce the artificially increased flow of the stream when wastes are no
longer discharged into it; and second, effluents applied to farm lands
roight reach nearby natural watercourses and increase the flow substantially
and detrimentally or carry damaging contaminants, or both. However, trace
contaminants carried from land application of wastewater courses may not
adversely affect the quality of natural watercourses if properly treated
59
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prior to application, thus avoiding liability. Moreover, only the overland
flow method and irrigation flooding technique would cause serious flooding
problems. Certainly, with proper application no such overflows would
occur. In addition, it is likely that application of fertilizer, while
arguably of new and extraordinary type, would be considered a reasonable
use in agricultural districts.
Diffused Surface Waters—
Diffused surface waters, of greater significance in evaluating the
status of land application systems, are defined in New York as all waters
from rain, springs, or melting snow which lie or flow on the earth's surface
but which are not a part of a watercourse or lake (258). It is well settled
in New York that a landowner has the absolute right to use water before it
leaves his land. He may appropriate it or discharge it in any fashion,
provided only that he does not cast it by drains, ditches, or other artifici-
ally constructed conduits upon the land of his neighbor. Surface water may
be prevented from reaching a natural watercourse even though such retention
may damage commercial users relying on the power source (250). In addition,
an owner of either the upper or lower land may improve it and change its
grade, thereby altering the flow of surface waters, provided the improve-
ments are made in good faith, and drains, pipes, ditches or the like are
not employed (259). This doctrine has commonly been called the common
enemy rule (260).
In assessing a proposed land application project under New York law,
it seems clear that any measures taken to retain trace contaminants on the
disposal or application site, incidentally retaining surface waters, would
be a perfectly acceptable and even a desirable practice. Adjoining land-
owners have no right to receive these diffused waters, nor can they complain
that waters resulting naturally from nearby improvements are now flowing
across their property. Whether irrigation and cultivation of farm lands
qualify as the kind of improvement contemplated as the natural incidence of
ownership has not been considered in New York. However, as landowners are
not required to maintain idle property in order to protect neighboring
premises from the incursion of surface waters (259), it is unlikely that
courts will read the rule so narrowly as to exclude irrigation. Neverthe-
less, the fact that additional quantities of water are being introduced
must be noted. Again, the various irrigation techniques and the overland
flow and rapid infiltration methods may avoid the dilemma occasioned by a
significant increase in the quantity of waters escaping from the premises
of an upper proprietor. Certainly, application of effluents to a severely
inclined plot descending rapidly to neighboring property or a nearby drain-
age ditch would be wholly unacceptable. Restrained and calculated applica-
tions assimilating rainfall levels or in accordance with outlet capacities
or drainage rates should result in little risk of liability.
Acceptable improvements have been the topic of much litigation (261).
Artificial concentration and discharge of waters in quantities beyond
natural capacity or which would drain elsewhere if left alone have been
consistently prohibited (262). In one instance, a municipal corporation
was held liable in damages for injuries caused to the plaintiff's premises
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by sewage brought from sources not draining naturally into surface waters
(263). In at least one case, the courts Indicated that the mere act of
creating a channel which would discharge water onto another's lands con-
stituted an actionable wrong, without demonstrating defective or unsafe
construction or maintenance (264). Further, where the state concentrated
and channeled surface waters to tax the outlet creek beyond its capacity,
liability ensued (265).
Unfortunately, the decisions are not harmonious with respect to the
available remedies. Obviously damages, measured by the difference between
the rental value with and without the overflow, are available (266). In at
least one case, damages were awarded for lost profits (267). Courts of
equity may enjoin recurrent discharge of surface waters, although no injunc-
tion will be issued where the plaintiff would benefit insubstantially to
the greater detriment of the public (268). While this balancing of the
equities approach had been rejected previously, recent cases indicate the
beginning of a new trend.
Thus, since a land application project would no doubt be characterized
as a good faith improvement by one property holder, the incidentally in-
creased flow of surface waters over the lands of another would not be an
actionable wrong, irrespective of the damage done. Moreover, restraining
waters upon particular locations cannot result in liability. As noted
above, care should be taken to avoid construction of discharge outlets and
intentionally directed flow, as on a steep incline. These difficulties,
while meriting attention, would appear to be easily solved under acceptable
engineering standards. Moreover, there is dicta in some opinions suggesting
that public necessity and insubstantial interference may be permissible
excuses for increased surface flow; however, this should not be relied upon
as the cases are inharmonious.
Discharges Affecting Subterranean and Percolating Water—
Subterranean waters are generally divided into two distinct classes:
(1) underground bodies or streams of water flowing in known and defined or
ascertainable channels and courses; and (2) waters which ooze, seep or per-
colate through earth or which flow in unknown or undefined channels. This
secondary category is commonly referred to as "percolating waters." The
rights and duties relative to the use of subterranean streams are governed
by the same rules as natural watercourses. The owners, like riparians,
have equal rights to the use and enjoyment of the water (269). In the case
of percolating waters, recent cases have indicated a shift to a similar
reasonable use view. A landowner may use percolating waters under his
Property as he reasonably can, even draining the spring of a neighbor
(270). What is reasonable, of course, depends on the facts of each case
(271).
The adoption of the reasonable use doctrine for subterranean waters,
to be measured by the rights and necessities of others, is a modification
°f an earlier rule permitting unlimited use of unidentifiable waters (272).
Thus, waste committed by one landowner resulting in diminution of flow of
water in neighboring springs was forbidden (273). Later, the court, while
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permitting withdrawal of waters to make ice for personal use upon land,
prohibited the sale of such ice, where injury to a neighbor could be demon-
strated (274).
Thus, a land application project could be subject to liability for
polluting underground waters if contaminants percolated through the earth.
Previously, courts were reluctant to find liability for pollution in the
absence of negligence and knowledge of the existence of subterranean water-
courses, if the business was conducted with care and skill (275). However,
other cases indicated that polluters will be held to the knowledge that
they could have procured, and certainly are liable, once the pollution has
been ascertained (276).
Evaluation of the plans for any land application system should include
an assessment of the degree of pollution to underground waters which might
result from any of the suggested application techniques. Certainly, the
degree of treatment to which effluents are subjected will reduce possible
water degradation. Controlled applications might be necessary to permit
contaminants which cannot be eliminated to arrive at the watercourse either
in a substantially diluted form or to be applied in such a fashion as to
permit the waters to fully assimilate pollutants before appreciable impair-
ment occurs, or more contaminants are added. Again, the reasonable use of
property under the circumstances must be considered. Arguably, limited
water quality impairment is characteristically expected. Precautions
should, however, be taken to identify defined subterranean watercourses.
Direct pollution of these streambeds has historically occasioned liability,
whereas degradation of the elusive percolatory waters has been frequently
ignored.
A final, and certainly more theoretical, difficulty with the waste-
water application project is the possibility that the water table might
rise, interfering with the runoff of surface waters to the injury of
neighbors. Again, New York courts have not addressed this issue. Assuming
such a chain of events could be proved, it is unlikely that the landowner
applying sewage effluent would be liable where such applications were
conducted as part of the natural use of his land and were not applied in
excessive amounts. The doctrine of reasonable use applies to all activities
affecting subterranean waters, and an evaluation would necessarily involve
the propriety of the burdens placed on the groundwater in light of the
surrounding, circumstances. Thus, it is impossible to provide a definitive
answer.
Water Quality Controls
New York statutes and regulations do not directly prescribe standards
for wastewater application systems. However, it is the avowed purpose of
the New York legislature to safeguard the waters of the state by preventing
any new pollution and abating pollution existing already (277). Recognizing
that prohibition of all waste discharges is totally unrealistic, New York
has initiated the State Pollutant Discharge Elimination System (SPDES)
(278), in conjunction with the national program of the same type (279), to
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establish a permit system authorizing certain discharges into waters of the
state (280).
The Department of Environmental Conservation (DEC) has administrative
jurisdiction to abate and prevent pollution of waters within the state in
accordance with classifications of waters adopted by the department (281).
The department may adopt, amend and cancel administrative rulings, hold
hearings, and issue permits. Currently, the minimum degree of treatment
required for the discharge of sanitary sewage into classified surface
waters is effective primary treatment (282). Discharges may not be made
without a proper permit (283).
The Environmental Conservation Law has been construed as ancillary and
supplementary to other state laws relating to pollution unless directly in
conflict (284). They are cumulative and additional to remedies to abate
water pollution. Nothing abridges or alters the rights of action or reme-
dies of the state or individuals as riparian owners or otherwise, in the
exercise of their rights to suppress a nuisance or abate any pollution now
or hereafter existing (285). Thus, assuming a land application system were
operating under a SPDES permit or even a Federal permit (NDPES), riparian
rights to the continued use of the water in its natural state may require
greater care in wastewater application than is initially demanded by the
statutory regulations prescribing the manner of application or maintenance
of water quality standards (286).
New rights are not created by the Environmental Conservation Law. The
right to prohibit pollution and enforce the regulations inures to the state
for the benefit of the people. The determination of a violation of the
Commissioner of Environmental Conservation creates no presumption or find-
ing of fact inuring to the benefit of persons other than the state (287).
An action to abate a public nuisance or statutory violation is reserved to
the Attorney General of New York (288). The commissioner is empowered to
institute proceedings to compel compliance (289). Civil penalties may be
imposed for each day the violation continues (290). Criminal liability may
arise for any willful violation of the statutes or of any final determina-
tion or order of the commissioner (291). For the purposes of a proposed
Project, it is probably safe to assume that initial compliance with state
official water quality standards will eliminate most risks of potential
liability for water pollution.
Basically, land application projects may be established in New York,
subject to certain qualifications and restrictions depending upon the type
of water source affected and the extent of water quality impairment or
interference with the use and enjoyment of surrounding property. Notably,
runoff of trace contaminants might result in an actionable trespass or
continued nuisance depending upon the degree of harm caused. New York
follows the "common enemy" rule with respect to the use of surface waters
by a landowner, imposing liability only for harm inflicted by artificially
discharging water upon the property of another. The reasonable use doctrine
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applies to the use of both natural watercourses and identifiable subter-
ranean streams, insuring the continued natural flow and purity of waters to
the lower riparian owner, subject to reasonable uses made by upper riparians
Thus, a land application system, if operated pursuant to Federal and state
regulations for sewage treatment and discharge, having given careful at-
tention to the respective disposal sites, might be profitably implemented
in New York.
OHIO
Law of Natural Watercourses
Description—
Ohio is a riparian theory state; riparian rights are "property" within
the Ohio bill of rights, such that any material interference with those
rights causing substantial injury to the owner will constitute a taking of
property (292). Ohio defines a watercourse as:
...a stream usually flowing in a particular direction in a defi-
nite channel having a bed, banks, or sides and discharging into
some other stream or body of water. It need not flow continuously,
and may sometimes be dry or the volume of such watercourse may
sometimes be augmented by freshets or water backed into it from a
lake or bay or other extraordinary causes; but so long as it re-
sumes its flow in a definite course in a recognized channel and
between recognized banks, such stream constitutes a watercourse.
(293)
Ohio basically adopts the reasonable use theory of riparian rights,
although there are many conflicting Ohio cases which can only be resolved
by an analysis of the historical background of the rule.
The surge of industrial development in Ohio during the latter half of
the nineteenth century brought the first great wave of industrial and
municipal pollution of the waterways. The courts in Ohio, as well as
elsewhere, were inclined at first to be unsympathetic to the claim of an
upstream industry that it could develop its business only by discharging
its wastes, as an incident of production, into the waterway on which it was
located. Courts protected the downstream landowner, frequently a farmer
asserting that the water was unfit for his animals to drink, by developing
and applying the "natural flow" theory. Thus in Columbus & Hooking Coal &
Iron Co. v. Tucker (294), it was stated that:
It is fundamental, we presume, that an owner of land has the
right to enjoy the soil itself, in its natural state, unaffected
by the tortious acts of a neighboring land owner, and, where the
land is located along the margin of a stream, he is, as a ripar-
ian owner, entitled, as an incident to his estate, to the natural
flow of the water of the stream, in its accustomed channel, undi-
minished in quantity and unimpaired in quality.... (295)
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The court, after considering the claim of the defendant coal company
that it had to deposit its coal slack and refuse in the stream in order to
carry on its business, added that:
The further claim of the company that it had the right to make
the deposits in the places complained of because it was necessary,
to the successful conduct of its own business to so place them,
seems no less wanting in substance. The effect is to measure the
rights of the plaintiff, in his lands, and in the waters of Monday
creek, by the convenience or necessity of the company's business.
An owner of land in Ohio is not subject to any such narrow and
arbitrary rule.... [W]here the result of the acts of one on his
own land is a direct and material injury to the property and prop-
erty rights of another ... the maxim sic uteve tuo ut alienum ;
non leadas applies. (296)
In City of Mansfield V. Balliett (292), the plaintiff sued to recover
damages for an alleged nuisance caused by the drainage of the defendant
city's sewage into a stream which ran through plaintiff's land. The Ohio
Supreme Court used quite broad language in upholding a verdict for the
Plaintiff:
The pollution of water by discharging waste from mills and
manufactories, or, indeed, in any way, creates an actionable
nuisance, and the legislature has no power to authorize the pol-
lution of the water of a stream without compensation to the
owners of the land through which such stream flows, as such
use is a taking of property within the meaning of the consti-
tution. (297)
As late as 1915, in Standard Hooking Coal Co. v. Koontz (298), in
which the plaintiff recovered a verdict for damages caused by the defendant
coal company's discharges of sulphuric acid into the stream that ran through
the plaintiff's land, it was reiterated that:
We think it will be conceded as a fundamental and a well-
established principle of law that an owner of land has the
right to enjoy the soil itself, with the incidents thereto,
in its natural state, unaffected by the tortious acts of a
neighboring landowner, and where the land is located in such
a way that a natural stream of water passes through it, the
owner of the land, as a riparian owner, is entitled, as an
incident to his estate, to the natural flow of the water of
the stream in its accustomed channel, undiminished in quantity
and unimpaired in quality. (299)
Yet, despite the tendency of the courts to speak in broad terms of
"natural flow" while deciding cases such as the above for downstream land-
owners, such an absolute position was never really the law in Ohio. During
the same decade, frequent cases began to develop a somewhat contradictory
theory of "reasonable use," In Salem Iron Co. v. Hyland (.300), the plaintiff
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sued to enjoin the operation of an oil well which pumped salt water into a
stream that the plaintiff had been accustomed to using for the generation
of steam. The court, emphasizing that the plaintiff sought only an in-
junction and no damages, held for the defendant. It mentioned that:
The defendants are conducting a lawful business with care.
They are conducting it at the only place where it can be con-
ducted. Such injury as is done to the plaintiff is unavoidable.
No injury to the health of the public or the employees of the
plaintiff results. If the conduct of the defendants is without
right, and a more appropriate rule of damages should not be sug-
gested in an action at law, the recovery of a sum of money suf-
ficient to pay the expense of obtaining water from another source
would fully indemnify the plaintiff and relieve it of further
injury without additional litigation. Cases which take no
account of considerations such as these are not in harmony with
the beneficient purposes for which the system of equity was
established. (301)
Three years after the Salem Iron case, the Ohio Supreme Court decided
Straight V. Hover (302), where plaintiff sued for an injunction and damages,
alleging that the salt water discharged into a stream by the defendant's
petroleum operation rendered the water unfit for her livestock and ruined
her pastures. The court, after asserting that the lower proprietors of
lands on a running stream have the right to receive the water from upper
proprietors free from contamination by artificial means, established two
principles: (1) that an action might be maintained for "substantial"
injuries caused by invasion of the right; and (2) that "...in cases of this
character where the invasion of the rights of the lower proprietor does not
amount to an appropriation of his property, but merely constitutes a nui-
sance, an injunction will not be allowed to prevent the development of the
resources of the lands of the upper owner, but that an action will lie for
the recovery of such substantial damages as the lower proprietor may sustain
by reason of such operations" (303) .
Thus, while Straight V. Hover contained broad language concerning
riparian rights of natural flow, it incorporated elements of a "reasonable
use" approach by its insistence that substantial injury be a prerequisite
to a suit, and by its development of the Salem Iron (300) approach that in
cases involving conduct amounting to a nuisance, but not to an appropriation
of property, damages would lie, but injunctive relief would not. Even more
frank in abandoning the strict "natural flow" theory was City of Mansfield
V. Bristor (304), where the Ohio Supreme Court approved the trial court's
charge to the jury, which stated that:
[T]he owner of land over which a stream of water flows has a right*
that it should continue to flow over his premises in the quantity,
quality and manner in which it is accustomed to flow by nature,
subject to the right of upper land owners, over whose land it also
flows, to make a reasonable use of the stream, and that this right
is a property right, and that the city would have a right to use
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this stream for sewerage purposes, providing it could do so with-
out material injury to the lot owners below.... (WV
that
it
damages, was generally a crucial factor in
Furthermore, many cases, while seemingly a__r „
actually incorporated elements of reasonable use analys
the plaintiff's injury must be ™"^.^™*B^?£o^d industrial
must also be remembered that, even as f^^^t*™* ..reasonable
development by developing theories of "substantial injury an , ,
use," they have never held in a case of severe Potion, such as raw
sewage or sulphuric acid, that the defen^.a^l^h^
sewge or supuc , ,wsecessary to te
and a damages suit on the theory that the Pol£f™™%£S JS of justice
conduct of the business. The older cases worked out a rough form j
™
v-uiiuuuL. ui. LUC uuoj-n&s"" — i-ifled because 01 its
whereby the industrial enterprise would not oe ^ injured
pollution, but would be required, in essence, o y
parties.
Thus the basic legal situation is that theupper^
the natural watercourse has the right to ma ® that watercourse, he
watercourse. However, if such a ^^^f d^^ream riparian or, in an
will be liable for damages to the injured ao ingQfar ag the addltiOn of
extreme case, susceptible to an injuncti . difficult to say
deleterious substances * ^^^^Scislon of MMff* »•
what is "reasonable." The reiativej-y *• . of natural substances of
Indian Sill Acres, Inc. (307) approved dlscharges of ^ operatlons
mud and weeds where it was incidental to ^^^&l&f y> Fisher oil Co.
on defendant's land. Isolated cases, sucn ted industrial wastes may
(308), indicate that the discharge or eve ± that most discharges
. < i Tin*- -I-VIP orooaDiJ-n-j tcuKaj."" «•
sometimes be reasonable, euc t«« v "reasonable" as to exempt a
of industrial wastes would not be deemeo plaintiff claims
defendant from liability for dafflag68-?'^ opposed to a plaintiff who
injury to his lands or personal distort. « °PJ£ (3Q9)> PQn the other
also wanted to use the waters for a busi v J toward trace pollutants
hand, the Ohio cases indicate ^fav°Ja°f ^f °^ith the discharge of such
a i _*_i ~,Ttt*t* re>aKOnSLOJ.6 USe t)i J.on , _.,_— 4-V.o
,
caused by an otherwise J^^g ^J enjoinable, and perhaps not even the
trace pollutants being definitely nuu. j
cause of money damages.
the oUer OMO cases
- -i— „ «.
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of the simple difference between a stream clogged with acid or smelly
wastes and a stream that merely flows faster or slower and with more or
less volume. Since the latter is reasoned to be a less "harmful" change in
the stream's nature, uses involving the latter results are even more likely
to be found to be "reasonable" in Ohio than uses involving actual pollution.
The earliest such case is Kemper v. Widows' Home (310). The plaintiffs,
who were residents of a home along "a deep ravine, which now is and always
has been a natural watercourse," sought an injunction against the drainage
of the wastewater of the defendant widows' home into the ravine. The
court, after stating that the plaintiffs could not complain about any
alleged pollution of the stream because they too deposited wastes in it,
turned to the issue of increased flow in the stream and said:
And plaintiffs claim that because the defendants, by means of the
down-spouts from their building, and the drainpipes from their
house, propose to throw this water into the street, and then per-
mit it to go into this sewer or stream, their rights are invaded
by the mere fact of that additional water being thrown into their
course, and that it is an invasion of their right actionable
because continuous, and enjoinable because the remedy at law is
not adequate. The authorites which plaintiffs' counsel rely upon
to sustain this position, all refer, however, to the flow of sur-
face water from higher to lower land where there is no water
course....
Now, if that same principle applies to a water course, the
plaintiffs' position is well taken. But I find that the authori-
ties do not establish the same principle as applying to a water
course. (311)
The court concluded that merely increasing the flow of water in a
natural watercourse did not give a right of action, where the capacity of
the stream was not exceeded and the .increase of flow was due to the improve-
ment of lots fairly within the territory drained by the watercourse.
Similarly, another Ohio case has held that a diversion of waters from a
stream, as for the creation of a mill race, can lead to liability if the
lower riparian can show that he has suffered real, material, and substantial
injury as a result of the diversion (312).
question of remedy for either alleged diversion or pollution of a
ards'of BroofC°tCe ^l* ^ T31^^' ^ general, Ohio has strict stand-
against successful T %?* b!f°re & r£C°Very is allowed» ^ich militate
noted th^ ^ J Prosecution of trivial claims. First, it should be
without affecting^s quaUty^arrnot^f6 ^ °* * ^^^ watercourse'
Ind^ertairLe^o^er^fri; l^ll 1*1^* !Ued tO ,en^in ^^^
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odor, and contained no foreign matter or bacteria in amounts greater than
in similar streams, and where the plaintiffs1 only real complaint was of
increased flow in the waterway, they would not be entitled to an injunction.
On the other hand, it has been held that the discharge of raw sewage
into a natural watercourse could be enjoined (314). But in Spieer v. White
Brothers Builders^ Inc. (315), in which lower landowners sued to enjoin the
defendants from draining water and septic effluent across their lands, it
was held the drainage could not be enjoined in the absence of a showing of
substantial injury constituting an appropriation of property. Other cases
indicate that even pollution which amounts to a legal nuisance will not be
enjoined, but will give rise to only an action for damages, unless the
pollution is so extreme as to amount to an appropriation of property (316).
It is further held that in any case in which the plaintiff seeks an in-
junction, the right to an injunction must be clear and the proof convincing,
injury must be actual and palpable, and regard must be given to the injuries
which might result to others from granting the injunction (317).
If, on the other hand, a plaintiff sues for money damages rather than
for injunctive relief, it is said that the plaintiff's damages must be
"real, material, and substantial" before his action will lie (318). Once
the threshold issue of materiality has been met, the question becomes one
of what principle will be applied to determine the amount of damages re-
coverable by the plaintiff. In a case involving pollution of a stream by a
mining company, it was held that the proper measure of damages to a riparian
owner is the difference in the value of the land before and after injury
occurred, and not the depreciated rental value from the date of the occur-
rence of the injury (319). And in Standard Hooking Coal Co. v. Koontz
(298), 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 per-
manent 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 of the property be-
fore and after the injury. If an injury susceptible of repair has
been done, the measure of damages is the reasonable cost of restora-
tion 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 the difference in the value of the
property before and after the injury, in which case the difference
in value becomes the law. (320)
With the Koontz case providing the best general statement applicable
to damage principles, several other relevant principles are worth mention-
ing. Among the damages a plaintiff can collect for cases based on pollution
°f a natural watercourse are damages for the decrease in comfort and enjoy-
ment of the premises for the plaintiff and his family (321) and damages for
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, if
Implications for Land Application Systems-
e - oa c. 8ystem with
watercourses has generally favorable Ln?7 ^ COncerned ^h natural
methods of application would meef the ^£0^^% ** °,f the P°8Sible
it has been held that irrigation is a reasonahl ^ °f irriSation," and
use of the waters of a natural watercourse At"311? therefore Permissible
diversion of wastewaters from a watercourse it ??u .* resultin8 f™» the
if it did occur, the operators of thTaDDlJr^ ly C° °CCUr; h°Wever'
for the damages proven by the downstream 1*T* ^^ ™y be held liable
extreme case, be enjoined from father ^Ir^™**' in an
the possibility of an injunction bein* III A °f the System' However,
acteriZed as "reasonable" is quite smfll ^ I ^^ * USe l**a^ char-
shown more willingness to shield evS^.^S0111"17 in °hio» which has
billty than the typlcai rip^^ even^consumptive uses of water from lia-
^
te—
io s
trace contaminants remain on ?he land anf ±S ^^ after -PPlication.
ural watercourse. Such a result will not T 6Ventually wa^ed into a nat-
lar situation, some contaminants drain in t« ** °CCUr> but if» in a Pa«icu-
following consequences may ensue It is ? * ^^ waterco«rse, then the
in Ohio for the pollution*^ the 'waters of I" 'hat1 there ca* *>* liability
occur even with a use that is "reasonable ^" ^T1 watercourSe. This can
reasonable uses may harm other Interests LA S* reCOgnized '^t even
as part of the cost of operation MthouSV ^ comPensate those harmed
=rr^^^^^
b . «
limited by several factors. First the 1^ t po!slbl"ty. however, is
course 1B llmited to per8ons ^ an invest 1^ f !lar" to a lrat«-
watercourse. Second, the landowne? who brl™« J Coining the
substantial harm to the watercourse and tS th= h ^ PrOVe actual "">
value of his land. In the case of „„ I lm™ a£fects the market
will usually be difficult? « Sot l^^T ^ll"-". «* a showing
recovery of damages will be limited^ "to nrov™ "^ ,\ Thlrd> OTy
" -
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injunctive relief.
There is no way the system's operators can totally eliminate the pos-
sibility of liability for trace pollution or interference with flow of a
natural watercourse (323), but the steps set forth in the section of Volume
I of this report concerned with natural watercourses for riparian states
and those for Arkansas further minimize the possible risk.
Law of Surface Waters
Description—
As is true in most other riparian jurisdictions, the bulk of Ohio's
surface water law deals with the question of landowners—either upper or
lower—trying to rid themselves of unwanted surface waters. In this con-
text, Ohio distinguishes between "rural" and "urban" rules, and applies the
civil law rule in rural areas, and the common enemy rule in urban areas.
In a rural area, the lower landowner is under a duty to receive the
natural drainage of surface water from higher lands, but in an urban set-
ting, he is not so obligated and may take steps to stop the drainage onto
his property. Thus, in Reiser V. Mann (324), the lower landowner in an
urban area filled in his land, causing surface waters to remain on what had
been upper lands, and a directed verdict for the defendant lower landowner
was sustained. Conversely, the law is relatively clear that in a rural
area the upper landowner may not discharge anything other than surface
water onto the lower lands, and, indeed, may not significantly change the
natural runoff of the surface waters. For example, in MaKiernann V. Grinm
(325), it was held that lower land owes a servitude to upper land to receive
the water which naturally runs from it, provided the industry of man has
not been used to create the servitude. Dill V. Oglesbee (326) held that an
upper rural landowner could install a drain to drain surface waters over
lower lands that would have passed over the lower lands anyway.
However, it was held in Butler V. Peak (327) that an upper landowner
could not, by means of an artificial drain, cast waters on lower lands
where there was no natural outlet for such waters and where such waters
would not have passed over the lower lands but for the artificial drain.
Finally, in Johnston V. Miller (328), it was held that a rural landowner
could not increase the burden on lower lands by collecting surface water
and discharging it at points other than those established by natural
drainage.
The upper landowner in an urban situation is allowed more leeway in
improving his drainage. Strohm V. Molter (329) held that the action of the
defendant, who created a terrace which caused water on the rear of his lot
to drain onto the plaintiff's land in a slightly different location, was
not an unreasonable use of his land in urban surroundings. On the other
hand, even the rural upper landowner may collect, by sewers or other arti-
ficial means of drainage, the surface waters gathering on his property, and
channel it into a natural watercourse, thereby increasing the volume and
accelerating the flow of the watercourse, without incurring liability to
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downstream landowners (.330) . It has been held that such drainage is not
actionable even though the channel into which drainage has occurred is
inadequate to accommodate the increased flow (331), although the drainage
will subject the upper landowner to liability if he discharges his surface
waters at points other than those established by natural drainage (332).
However, the point has also been made that this rule applies only to drain-
age of surface water, and not to additional waters pumped from wells and
used by an upper landowner for business purposes (333).
When we turn from drainage of naturally occurring surface waters to
drainage of trace pollutants into surface waters, the Ohio authorities
become much more sparse. There are very few Ohio cases involving pollution
of surface waters. This may be because of the difficulty of proving injury.
Treated effluent that runs across the surface of someone's land and sinks
into the soil with precipitation should leave little or no sign of pol-
lution. Damage, if any, will usually be psychological or aesthetic. In
one case involving surface water pollution—an urban situation—the court
refused to grant an injunction to prevent the drainage of effluent from
subdivision septic tanks (334). The court stated that damages or sub-
stantial injury amounting to a taking of the plaintiff's property must
exist to allow the granting of an injunction. The court relied on cases
involving pollution of watercourses as precedent, thus implying that the
same standard of care is involved in both kinds of pollution. Thus, in an
urban area, trace pollutants passing across lands by means of surface
waters may be treated the same as trace pollutants finding their way into
natural watercourses.
A stricter rule may be applied in rural areas. Several of the cases
holding that the rural upper landowner has the right to have his surface
waters naturally drained across lower lands emphasize that this right is
limited to naturally occurring surface waters, and does not extend to
"deleterious substances" added by the landowner. It is possible that,
while the rural rule is more favorable to the upper landowner in the con-
text of natural drainage, it could be less favorable to the upper landowner
in the context of trace pollutants. If Ohio were to hew literally to the
civil law rule in rural areas and applied those rules to instances of trace
pollution of surface waters, it would follow that such pollution would be
enjoinable without regard to the reasonableness of defendant's use of its
land. While there is no holding to this effect in Ohio, the possibility of
such a result is slightly more likely than in other riparian states because
of the fairly strict civil law rule applied in rural areas and the language
in several older cases indicating that the upper landowner's natural servi-
tude is limited to naturally occurring surface waters, such as rain or
snow. Whether the strict Ohio requirements of proof of harm, applicable to
a natural watercourse action, would apply in a lawsuit involving trace .
pollution of surface waters remains to be determined.
If the land application system operators did not want to take the risk
of liability for contamination of surface waters, they could arrange to
retain all the surface water, including ordinary precipitation, within the
boundaries of the project. The question then arises whether retaining
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precipitation which previously had flowed across adjoining lands would give
rise to liability (335). The general rule is that the owner of the soil
can retain and use all the precipitation received without any liability to
other landowners (336). Nothing in Ohio law suggests a departure from this
rule, and indeed the strictness of Ohio's rural civil law rule suggests
that this rule of absolute ownership would be applied, at least in rural
areas.
Implications for Land Application Systems—
As noted, land application systems may affect surface waters either by
producing trace contaminants which may drain from the site with diffused
surface waters, or by retaining both the trace pollutants and surface
waters, such as rainfall, at the application site. The Ohio law has im-
plications for land application systems in both of these situations.
Although the law is not unfavorable in either situation, the implications
are more favorable in the second situation, when both pollutants and dif-
fused surface waters are retained at the application site, than in the
first situation, when both are dispersed to adjoining lands.
In the first instance, trace pollution of surface waters crossing the
lands of another person, Ohio, like many riparian states, has no law
directly on point. The problem with Ohio's jurisprudence lies in the fact
that Ohio still applies a strict civil law rule to rural lands. If 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. No riparian state, however, has ever been that strict. Even those
states which adhere to a relatively pure civil law rule for issues in-
volving 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 jurisdictions for other purposes. That is, pollution for no
valid purpose might be unlawful, but pollution in connection with an other-
wise reasonable use might be lawful. The problem in Ohio lies in the fact
that there are no cases yet making this distinction between questions of
increased drainage and questions of trace pollution. Therefore, the Ohio
law is necessarily uncertain on this point.
On the other hand, if the system collects both surface waters and
trace pollutants on its property, there is no possibility of liability 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 can with impunity
collect all surface waters on its property. Given these basic principles,
the recommendations for Arkansas and those contained in Volume I of this
report for land application systems as they relate to surface waters in
riparian states, should be followed in Ohio.
Law of Groundwater
Description—
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Groundwater in Ohio, as in other riparian states, can be divided into
two categories: (1) percolating water, which oozes and filters from the
lands of one owner to the lands of another; and (2) subterranean streams,
which flow in a permanent, distinct and well-defined channel (337). Sub-
terranean streams are governed by the same rules of law that govern water-
courses flowing upon the surface of the earth (338), whereas percolating
waters are appurtenant to realty (339).
With regard to questions of use of percolating waters, Ohio follows
the absolute ownership rule, that is, a landowner may use all the water
beneath his land without regard to injury to adjoining neighbors. The only
possible liability found in the Ohio cases is if a use of land raises the
water table above the surface of neighboring land, an action in trespass
would exist (340). Otherwise, there appears to be no liability in Ohio for
use of groundwaters, or for raising of the groundwater table by use of
land, at least in the absence of malice. There are Ohio cases indicating
that there will be no liability if an otherwise reasonable use is carried
on negligently and thus cuts off a neighbor's percolating water (341).
In cases involving pollution of percolating waters, however, the rule
in Ohio seems to be that a landowner is liable if he contaminates the
waters percolating through his land to the injury of a neighboring landowner
whose well or spring subsequently receives the percolating waters so con-
taminated. In Bassett V. Osborn (342), the plaintiffs' land included a
spring of water which they used for domestic purposes. The defendant, who
was a neighbor, built a cesspool into which he deposited refuse from his
house. This cesspool was located about 325 feet from the plaintiffs'
spring, and evidence indicated that the cesspool's contents leaked through
the earth and rendered the spring's waters unfit for domestic purposes,
such as drinking or culinary use. The court emphasized that there was no
negligence by the defendant: "It is not claimed and surely is not shown
that the defendant has constructed this pool carelessly. On the contrary,
he took pains to have it done to the satisfaction of the acting health
officer ... and ... seems to have done all that could be done to prevent
injury to the plaintiffs..." (343). Despite this finding, the court granted
the plaintiffs the injunction they requested.
An argument was made by the defendant in Bassett that the rule of no
liability, applicable in Ohio to a case involving diversion of percolating
waters, should also be applied to a case involving pollution*of percolating
waters. The court, however, distinguished the two situations when it
stated:
In the one case, the lower proprietor is wholly deprived of the
water which would by nature have percolated through the lands
of the defendant and into the lands of the plaintiff. In the
other the water is not prevented from going upon the plaintiff's
land, but is allowed to go in a state wholly unfit for use, and,
in fact, prejudicial to health if thus used. (344)
Although the court never did explain why one type of deprivation of
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the use of percolating water ^"^.l 2"
of deprivation did not, it held that ^plaint from permitting any of the
injunction perpetually restraining the ^^l^tlffs' premises.
contents of his cesspool to percolate upon the jj^^ ^ is a form
Liability was apparently ^sed on the do ctrine of * ^^ ^ ^ Q£
of strict liability. The court did no* f?!°"" dl*tlon8 based liability
the cases it cited with approval from °^U^ne defendant was not
on nuisance, and the court's explicit finding
negligent negated any other conclusion.
This might appear to be a very stringent rule on the ------
it must be remembered that in order to prove a nuisa^, J^ ^
prove substantial harm depriving **» « u£ ~ poilutants will not often
Basically, cases of minor harm caused by trace poxx
fall within this rule.
Implications for Land APPllc*^™ *y*f**ace contaminants reaching ground-
With regard to the possibility °* "*^ able impiications for establish-
water supplies, Ohio law has reaso^Jn£ere may be more uncertainty
ment of land application ^^l.^S^ ^ essence, the absolute
than in other riparian states. ^J^f^ states which apply some
ownership rule to groundwaters. in most £or poliution is less
version of the absolute owner^P ™^ule; usually there is no cause of
likely than under the reasonable use ^J' or negligence. In a few
action for pollution in the absenc%°^^nce is proven. This is ap-
states there is no liability e!fnf,^Sg diversion of percolating
parently true in Ohio in situations ^™g*MM in which liability for
water. At the other extreme, there are a negligence or other fault
pollution is imposed even In 'f ^f^^'gory! since the few cases
by the polluter. Ohio may fall ^'^tinfwater supplies do so without
imposing liability for pollution of P««^Se«ce or malice. As was
any mention of limiting factors "^as £gl ij»£ even in the absence
previously discussed, in one case U^"L**tude of such liability,
of negligence of any sort. ^ ££bl« ^ requirement of proof of
however, is minimized by two factors. W es gpeak in terms of
substantial harm; and (2) the fact that «ie «n „ since a
nuisance, which is at least narrower than stri ence with one'S
nuisance occurs only when there is a sub «««ax ^ ^ typically
use and enjoyment of land. The sort of trace p ^& to fact
U a U»sult aUese, ^because
absence of polltuion, raised the water J;e ffi lt time in attempting
plaining landowner will have a ?uch <^0JS" if there is no provable
collect damages from ^e system s operator s^^ ^ lntcntlonfll harm being
negligence in the operation of the "J8™ ^ by such a landowner, even
done, there are no cases all°wff£ ^/^Jlct liability rule to cases
though Ohio may apply a version of the str ^^ ^ ohio indicating no
water even if an otherwise reasonable
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use is carried on negligently. This rule might logically apply to non-
polluting additions to percolating waters as well, which creates an anom-
alous situation in that Ohio would have one of the more strict rules for
cases of pollution of percolating waters, but the least strict rule in the
country for raising of the water table.
This anomaly may simply be explained by conflicting language in the
few Ohio decisions on point. The fact remains, however, that the possibil-
ity of liability in Ohio for interference with percolating waters is very
small. In addition, the precautionary steps outlined for Arkansas and in
Volume I of this report for groundwater in riparian states can be taken to
minimize the possibility of liability.
Summary
Ohio has an extensive—and fairly recent—statutory structure regarding
water pollution. First of all, the Ohio Environmental Protection Agency
(OEPA) is given broad powers to control, prevent and abate pollution of the
waters of the state (345). Waters of the state are defined to include
"...all streams, lakes, ponds, marshes, watercourses, waterways, wells,
springs, irrigation systems, drainage systems, and all other bodies or
accumulations of water, surface and underground, natural or artificial..."
(346). Clearly a particular land application project could fall within the
jurisdiction of this agency. The Ohio Water Pollution Control Act (347),
which OEPA enforces, declares the pollution of any waters of the state to
be a public nuisance unless the director of environmental protection issues
a permit to the alleged polluter (348). This provision does not apply,
however, to the application of any materials to land for agricultural
purposes or to runoff of such materials from such application (349). It is
fairly certain that a land application project would be covered by this
exception. If a permit were required, however, then it is clear that
pollution without a "valid and unexpired" permit constitutes a public
nuisance (348), and that all private rights of action and remedies in
equity or under the common law are preserved to affected private parties
(350).
Favorable possibilities exist in Ohio for land application systems.
Ohio's underlying water law is one of the most favorable in the nation.
The state's Water Pollution Control Act (347), by specifically exempting
applications of materials to land for irrigational purposes, indicates a
willingness to foster development of such systems.
PENNSYLVANIA
Pennsylvania does not have regulations specifically devoted to land
application systems. However, the Pennsylvania Clean Streams Law (351) de-
clares discharges of pollutants into waters of the Commonwealth to be
unreasonable and unnatural uses of such waters, therefore, to be against
public policy and to be a public nuisance (352). Discharges which will not
pollute, such as sewerage systems, must receive a permit from the Department
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of Environmental Resources before construction (353). The application for
a permit for each proposed wastewater disposal facility is reviewed by the
department's technical staff and a decision made on a case-by-case basis.
In this regard, the burden of providing sufficient information necessary to
evaluate a particular system and site is placed on the applicant.
The Department of Environmental Resources has developed the "Spray
Irrigation Manual" (354) as a guideline to potential wastewater irrigation
applicants. Spray irrigation installations can be utilized according to
the "Manual" where the wastewater contains pollutants of such type and
concentration that they can be successfully treated through distribution to
the soil mantle. Generally, the equivalent of secondary treatment must
precede spray irrigation. However, because of the variability of earth
materials, spray field use, and effluent constituents, treatment require-
ments and performance criteria have to be determined on a site-by-site
basis. The prime consideration for site selection is the ability of the
organic and earth materials to properly treat the wastes (355). Guidelines
relating to soils, geology, hydrology, weather, agricultural practices,
adjacent land uses, pretreatment, wastewater storage, screening, piping,
sprinkler types and spacing, and application rates are specified in the
"Manual."
Once the requirements of the Clean Streams Law (351) are complied
with, the underlying law of water rights in Pennsylvania should not present
too much difficulty to the system operators.
Law of Natural Watercourses
Pennsylvania is a reasonable use riparian jurisdiction (356). In
addition, Pennsylvania jurisprudence contains some of the broadest state-
ments legitimizing commercial uses of water, even when those uses cause
specifically provable harm to down stream riparians (357). Since land
application would be viewed as irrigation, therefore, an approved use, it
is virtually certain that no court would issue an injunction against a well
run land application system in the absence of negligence or malice. While
money damages might be a possible remedy in a case where a downstream
riparian could prove harm caused by trace pollutants from an upstream land
application system, even here Pennsylvania's law is more favorable toward
developers of water resources than that of other states (358).
Law of Surface Waters
Pennsylvania follows the common enemy rule as to urban properties
(359), although it has been modified to permit liability for causing un-
necessary damage through negligence. In rural areas, in which land ap-
plication systems are more likely to operate, the civil law rule is applied
(360). While this rule is relatively restrictive, in that it prohibits the
uPper landowner from draining anything but natural drainage across the
lower lands, Pennsylvania has qualified it by ruling that changes in the
quality or quantity of the flow of surface water will be permissible where
occurring as part of a proper and profitable use of the upper land, if the
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change in question is not unreasonable in relation to the use. In addition,
since trace contaminants mingled with surface waters can be retained at the
application site with impunity under Pennsylvania law, it is clear that the
underlying water law of the state, in its entirety, is highly favorable to
the development of land application systems.
Law of Groundwater
Pennsylvania follows the absolute ownership rule in cases involving
obstruction or diversion of groundwaters (361). In Wheatley v. Bough (362),
it was reasoned that:
But percolations spread in every direction through the earth, and
it is impossible to avoid disturbing them without relinquishing
the necessary enjoyment of the land. Accordingly the law has
never gone so far as to recognize in one man a right to convert
another's farm to his own use, for the purposes of a filter. (363)
The waters beneath the surface were simply part of the owner's interest in
his land, and if in using them he drained off waters so as to inconvenience
his neighbor, it was not the basis of any cause of action.
Whatever the difficulties which the absolute ownership rule poses for
preservation of groundwater supplies, the fact remains that it is the most
favorable rule of law for a person such as the operator of a land applica-
tion system who will be engaging in an innovative use of land that might
have an impact on a groundwater supply. While Pennsylvania has modified
the rule to the extent of holding that there can be liability for negligent
(that is, unnecessary) or malicious obstruction of groundwater supplies
(364), the basic absolute ownership rule remains the law of Pennsylvania.
In the case of pollution rather than obstruction of groundwaters,
Pennsylvania also applies a modified absolute ownership rule; that is,
there is no liability for pollution of groundwater in the absence of neg-
ligence or malice (365). This is in contrast to many other states which
apply the absolute ownership rule to cases of obstruction or diversion, but
shift to reasonable use analysis for questions of pollution. In addition-,
Pennsylvania cases emphasize the necessity of proving a causal relation
between the asserted pollution and the harm, which further diminishes the
possibility of recovery of damages (366).
TENNESSEE
The Tennessee Department of Public Health has prepared administrative
guidelines directly applying to land application of wastewaters (367),
while the state's Water Quality Control Board has adopted regulations that
indirectly apply (368). In addition, the Tennessee Water Quality Control
Act of 1971 (369) also has recently been applied to private land application
projects.
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Water Quality Control Act of 1971
The Water Quality Control Act of 1971 has been described as one of the
most significant pieces of environmental legislation in recent years (370).
All waters of the state are held in public trust for the use of all Tennes-
seans under the Act (371).
Certain responsibilities are granted under the Act to the commissioner
of the Tennessee Department of Public Health, who also serves as the chair-
man of the Tennessee Water Quality Control Board (372). The commissioner
administers all laws relating to pollution of the state's waters (373).
The board is authorized to adopt standards of quality for all waters of the
state and to hear appeals from orders or permits issued by the commissioner
(374).
Several types of conduct are prohibited by the Water Quality Control
Act of 1971. First, it bans pollution of the waters of the state unless
the pollution is due to an act of God, an unavoidable accident, or an
activity which has been properly authorized (375). Second, the Act pro-
hibits the violation of any rule, regulation, or standard of water quality
promulgated by the board (376). Third, failure or refusal to file an
application for a permit is a violation of the Act (377). Fourth, the Act
prohibits the refusal to furnish or the falsification of any records,
information, plans, specifications, or other data required by the board
(378). Fifth, the Act bans the violation of any permit or order issued by
the board (379).
Unless a person holds a valid permit it is unlawful for him to: (1)
alter the physical, chemical, radiological, biological, or bacteriological
properties of any waters of the state; (2) construct or operate a water
treatment plant; (3) increase in volume or strength any wastes in excess of
the standards permitted under an existing permit; (4) construct or operate
an establishment which is likely to alter the properties of any waters of
the state; or (5) construct or operate any new outlet for the discharge of
wastes in the waters of the state (380).
The Act grants power to the commissioner to make decisions and to en-
force them. The commissioner issues or refuses to issue permits (377).
Whenever the commissioner has reason to believe that a person has violated
the Act, he may issue a complaint. In addition to the complaint, the com-
missioner may issue an order to take corrective action (381). The commis-
sioner may institute proceedings in an appropriate court for injunctive
relief upon belief that a person is violating the Act (382). He may also
bring suit in an appropriate court for enforcement of his orders (383).
The commissioner may assess a person who violates the Act for damages to
the state (384).
The penalties for a person who violates the Act may depend upon his
state of mind at the time of the offense. Any person who fails, neglects,
or refuses to comply with the Act is guilty of a misdemeanor. Upon convic-
tion he pays a fine of not less than fifty dollars or more than five
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thousand dollars. Each day upon which a violation occurs is a separate
offense. Any person who willfully and knowingly violates the Act is guilty
of a felony. The court may fine him not more than ten thousand dollars,
imprison him for not more than two years, or do both. Political subdivisions
and their officers and municipalities and their officers are not subject to
criminal prosecution (385).
The Act specifically provides that it shall not be construed as alter-
ing the rights or remedies under existing law (386).
Although the Tennessee Water Quality Control Act of 1971 does not
mention the phrase "land application of waste water," its provisions clearly
apply to this process. Indeed, the Water Quality Control Board has already
approved plans for the construction of land treatment sites submitted by
two industries in the state—H.I.S. Apparel at Bruceton and Tennessee
Eastman at Kingsport (387). The Act provides that a person must obtain a
permit if he alters the properties of any waters of the state, operates a
waste treatment plant, operates a project which is likely to alter the
properties of any waters of the state, or operates any new outlet for the
discharge of wastes in any waters of the state (380). A proposed land
application system may fall within all those categories and certainly falls
within some of them. Because the proposed system is within coverage of the
Act, the builder is required under administrative regulations to submit
construction plans (388), permit an on-site investigation (389), and
monitor discharges (390).
The State Department of Public Health would require the builder of the
proposed land application system to establish a series of wells near the
system. The number and size of the wells would depend upon the size of the
system and the hydrology of the area. The builder would be required to
take samples of the water from the wells for testing (387).
The Act authorizes the Water Quality Control Board to classify all
waters of the state and to establish quality standards for those classifica-
tions (391). The builder of the proposed land application system would
have to satisify the standards set by the board for his area. If the
builder violated the standards, he would be subject to the penalties.
Law of Natural Watercourses
Description—
The courts in Tennessee have adopted the reasonable use version of the
riparian rule. The following statement in American Association, Inc. V.
Eastern Kentucky Land Co. (392) illustrates the compromise implicit in this
rule:
The sound rule, we take it, to be extracted from the best
considered cases is that each riparian owner has an equal right
to have the stream flow through his land in its natural channel,
without material diminution in quantity or alteration in quality
but with this limitation or qualification, however, that each
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proprietor is entitled to the reasonable use of the water for
domestic, agricultural or manufacturing purposes. (393)
In Hurley v. American Enka Corp. (394), the validity of the reasonable
use rule was reaffirmed. The court states: "Plaintiff and defendant are
both riparian owners. As such, each has a right to make reasonable use of
the stream" (395). In Tallassee Power Co. v. Clark (396), a Federal appel-
late court explained the rule in this manner:
As we understand the law laid down in many cases, the right of
each riparian owner qualifies that of the other, and the ques-
tion always is not merely whether the lower proprietor suffers
damage, but whether under all of the circumstances of the case
the use of the water by one is reasonable and consistent with
its enjoyment by the other. The test is always imposed with
regard to the equality of right between the several riparian
owners. If the injury to one is merely incidental to the
reasonable enjoyment of the common right by the other, there
can be no redress. (397)
A riparian owner may not materially reduce the level of a stream or
lake. In Webster v. Harris (398), the court enjoined the defendant from
draining part of Reelfoot Lake. The court commented that the level of the
lake could not be changed wrongfully and unnecessarily. In Cox v. Howell
(399), the defendant diverted water from a stream for use in a steam gener-
ating plant. The reduction in the volume of water in the stream prevented
the plaintiff from operating his mill. In enjoining the defendant from
diverting the water, the Tennessee Supreme Court stated:
[E]very riparian owner has a right to use primarily the water
of a flowing stream for domestic purposes, for the support of
life in man and beast, and, in addition, in a proper and rea-
sonable way, for the irrigation of his land, or for the opera-
tion of his machinery on his land, provided the volume of water
in the stream warrants this use above domestic uses. (400)
Moreover, the court asserted that the reasonableness of a particular use is
dependent upon both the character of the stream and the purpose for which
the water is used.
The courts have held that a riparian owner is entitled to receive
floodwaters without obstruction by another riparian owner. In Tallassee
Power Co. v. Clark (396), the defendant electric company operated a dam
above the plaintiff's property preventing floodwaters from reaching it.
The electric company contended that the waters were destructive; therefore,
it argued that the plaintiff could not acquire rights in the floodwater.
The Federal appellate court disagreed and stated: "The right to have flood-
waters overflow the riparian land has been recognized by many courts"
(397). Because the floodwaters bestowed the benefit of silt and sediment,
the obstruction of the floodwaters was illegal.
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The courts in Tennessee also prohibit the casting of large amounts of
water upon the lands of other riparian owners. This may occur either when
an upper riparian owner releases impounded water or when a lower riparian
owner obstructs the flow of water upon his land. A riparian owner may con-
struct a dam across a stream if it does not adversely affect other riparian
owners (401). However, a riparian owner is liable for flooding caused by
his dam (402). In Tennessee Electric Power Co. v. Robinson (403), the
defendant released a huge volume of water into a stream by opening the
floodgates of a dam. Although the appellate court returned the case to the
trial court for a determination of fact, it asserted that "...one who
constructs and maintains a dam has no right to discharge the contents of
the pond thereby made so as to increase the flow of the water course beyond
its natural capacity, to the injury of the lower riparian proprietor"
(404).
Although a substantial interference with the flow of a watercourse is
illegal, the court may award damages but deny an injunction, particularly
if it attempts to "balance the conveniences." In Hurley v. American Enka
Corp. (394), a manufacturer built a dam downstream from the property of the
plaintiff. The impoundment of water caused flooding on the plaintiff's
property. After finding that the conduct of the manufacturer was unreason-
able, the Federal trial court awarded damages for the destruction of crops
and the diminution of the value of the farm. However, the court refused to
grant an injunction. According to the court, the denial of injunctive
relief was appropriate in view of the value of manufacturing to the
community.
The Tennessee Supreme Court expressed a similar view in Madison V.
Ducktow. Sulphur^ Copper & Iron Company (405). Damages were awarded to the
injured plaintiff, but the court refused to grant an injunction. The court
balanced the conveniences by comparing the value of the activity conducted
by the defendant to the value of the activity conducted by the plaintiff.
The court stated:
But in a case of conflicting rights, where neither party can enjoy
his own without in some measure restricting the liberty of the
other in the use of property, the law must make the best arrange-
ment it can between the contending parties, with a view to pre-
serving to each one the largest measure of liberty under the
circumstances. (406)
In addition to the safeguards offered by statutes, the common law of
Tennessee protects riparian owners from unreasonable pollution. In Surnner
V. O'Dell (407), the defendant confined his cattle to a small area sur-
rounding a stream. These cattle fouled the stream, which crossed land
owned by the plaintiff. The court asserted: "Whether or not the pollution
of the waters of a stream is an actual injury to a lower riparian proprietor
depends upon whether it is the result of such reasonable use of the stream
as the upper owner is entitled to make, or an unreasonable use in excess of
his rights" (408). In holding that allowing the cattle to drink from the
stream was reasonable, but confining them to a small area surrounding the
stream was unreasonable, the court granted the injunction.
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The court espoused a similar view in H. S. Bowling Coal Co. v. Ruffner
(409) . In this case the defendant operated a coal mine and pumped water
from the mine into the stream which adjoined the property owned by the
plaintiff. This water, which contained acid, rendered the water in the
stream unfit for use by humans, animals, and machines. The court found
that the water from the mine could not be purified. Disposal of the water
was necessary for the operation of the mine. In spite of these Actors the
defendant was liable for damages. The court disallowed the defense that
the pollution was a necessary result of the mining operations.
Implications for Land Application Systems—
Two possible problem areas existed for a proposed land application
system under the Tennessee cases which deal with natural watercourses.
First, the proposed project would improve the quality, but diminish the
quantity of Pwa?er flowing in a natural watercourse. Riparian owners in
Tennessee are entitled to the reasonable use of water from a natural water-
course for various purposes. The operation of the proposed system may not
qualify as the diversion of water from a watercourse. Relevant cases in
B
Tennessee deal with persons who have appropriated water
the watercourse. Even if the operation of the proposed project
as the diversion of water from a watercourse under the P"y*°«
is entitled to the reasonableness test. The decrease in the amount of
water in the watercourse due to the operation of the Proposed
reasonable use.
L2S t==
volume of water necessary for certain activities.
Second drainage from the proposed project might pollute a water-
aecona, drainage a. rotectgrriparian owners from unreasonable pollution.
In assessing the reasonableness of the use rrourse and the
vIlurofttLCactLitielC°BecfusettheCrights of the riparian owners^are
correlative, the reasonableness of the use of the water bv * * P^°PO8e
system would depend in large measure upon the particular situation.
Law of Surface Waters
*8CrJh?™«t8 in Tennessee have adopted the natural flow or civil law
theory under which ruL the owner of an upper tract of land^has an ease-
ment In tSe lower tract for the drainage of naturally occurring surface
wafers? Moreover, they have specifically rejected the common enemy
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doctrine (410) and the combination urban-rural rule (411).
Tennessee courts have held that the upper landowner and the lower
landowner share mutual obligations. In Davis V. Louisville & Nashville
Railroad Co. (412), the court states: "It is a well-established rule of
law in this State that lands lying at a lower level are burdened with the
servitude of receiving all waters which naturally flow down to them from
lands adjoining and upon a higher level" (413). The lower landowner is
liable for the damage caused by blocking the natural flow (414). On the
other hand, the upper landowner is liable for damages if he alters the
natural condition of his property and collects the surface and rain water
together at the bottom of his estate and pours it in a concentrated form or
in unnatural quantities upon the land below (415).
Incidental changes in the natural flow of surface waters are permis-
sible according to Tennessee courts; however, a modificlation which causes
damage is illegal. In Dixon v. City of Nashville (416), the court held
that the city was responsible for damages caused by interference with the
natural drainage of surface water by the construction of a street. The
court stated that the city may improve its property in any ordinary way as
long as there is no substantial change in the flow of surface waters.
Although the city was not liable for the extra runoff caused by the paving
of the street, it was liable for the deflection and concentration of water
into a drain.
An upper landowner may protect his agricultural land by digging ditches
along the natural depression or drainway (417), but he may not damage lower
lands by discharging surface waters with increased force or volume (418).
In Tyrus v. Kansas City* Fort Saott & Memphis Railroad Co. (419), the rail-
road constructed a culvert which received the drainage from 58 acres of
land. The release of water from the culvert caused a large gully on a lot
owned by the plaintiff. The court found the railroad liable for sending
the surface waters upon the land with greater volume and with greater force
than it was accustomed to flowing.
A lower landowner does not have an obligation to receive the unnatural
flow of surface waters. In Mayor of Sweettiater v. Pate (420), the city
built ditches which emptied water from several streets onto property owned
by the defendant. The defendant obstructed the ditches to prevent the
water from damaging his property. The court refused to enjoin the defendant
from maintaining the obstruction. It held that the defendant had a right
to protect his property from the unnatural flow of surface waters. In
Slatten v. Mitchell (417), the defendant erected a dam to prevent surface
waters from flowing onto his property. The court refused to grant an
injunction against the defendant for maintaining the dam. Although the
court acknowledged the duty of the defendant to preserve the natural flow
of surface water, it held that the flow of surface water in this case had
been increased by neighboring landowners. The court asserted that the
defendant was entitled to "...protect his lands from the injurious effects
of surface water, if, in thus relieving himself, he respects the rights of
others" (421). The defendant acted reasonably in refusing to receive the
destructive waters.
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Implications for Land Application Systems—
Although the courts in Tennessee have not established rules in two
significant areas of surface water law, it is likely that they will follow
the rules established by the courts in a majority of jurisdictions. The
majority views in both areas are consistent with the existing framework of
Tennessee law. The courts in most jurisdictions which apply the natural
flow test to determine liability for the use of surface waters apply a
reasonable test to determine liability for the pollution of surface waters.
Therefore, the courts in Tennessee probably will adopt a reasonableness
test in cases involving the pollution of surface waters. Most courts hold
that the owner of land has the right to appropriate all surface waters
which are found on his land. Property rights do not attach to the flow of
surface waters until they arrive at a natural watercourse (336).
The Tennessee cases dealing with surface waters may pose two problems
for the builder of a system for the land application of wastewater. First,
the surface waters which flow from the site of the proposed project may
contain contaminants. The courts in Tennessee have not decided any cases
dealing with the pollution of surface waters. If Tennessee follows the
majority of jurisdictions, it will adopt a reasonableness standard. The
builder of the proposed project would be liable if the pollution of the
surface water was unreasonable. The court would examine the character of
the surface waters and the value of the activity.
Second, in an attempt to prevent contamination the builder of the pro-
posed project may retain all of the surface waters which would normally
flow onto lower lands. The courts in Tennessee have not decided the
question of whether or not the owner of land may appropriate all surface
waters which are found on his land. Most of the courts which have decided
the issue have held that the owner of land may retain all surface waters.
If the courts in Tennessee follow this trend, the builder of the proposed
project would be allowed to retain all surface waters.
Law of Groundwater
Description—
The courts in Tennessee have adopted the reasonable use theory re-
garding use of groundwaters. Although the courts have announced very few
cases dealing with the use of groundwaters, the law appears to be settled.
In Nashville, Chattanooga & St. Louis Railway v. Rickert (422), the
defendant pumped water from an aquifer to supply a bathing pool. The same
aquifer had served the plaintiff, a railroad company, for many years. The
groundwater from this source was not adequate to serve both uses if the
defendant continued to operate at full capacity. In enjoining the defendant
from interfering with the right of the plaintiff to obtain an adequate
supply of water, the court stated:
According to the English or common-law rule, a landowner
had the right to dig a well on his land and collect therein sub-
terranean percolations which he might use as he pleased, even if
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he thereby destroyed the source of supply of wells or springs on
the lands of others. This rule was followed in some early deci-
sions in American states other than Tennessee, but the modern
rule and 'the better rule is that the rights of each owner being
similar, and their enjoyment dependent on the action of other
landowners, their right must be correlative and subject
to the maxim that one must so use his own as not to injure
another, so that each landowner is restricted to a reasonable
exercise of his own rights and a reasonable use of his own
property, in view of the similar rights of others.' (423)
Although the courts in Tennessee have applied a reasonable use test to
determine liability for the use of groundwater, it appears that they have
applied a strict liability test to determine liability for the pollution of
groundwater. In Sinclair Refining Co. v. Bennett (424), gasoline stored by
the defendant leaked into wells owned by the plaintiff. The court sus-
tained a judgment awarding the plaintiff damages for polluting her wells
based upon proof of a causal connection between the contamination and its
source. The court held that the measure of damages was the difference
between the value of the property before the wells were polluted and the
value of the property after the wells were polluted. This determination^
was based upon the fact that the injury was permanent. In Love v. Nashville
Agricultural and Normal Institute (425), the wells owned by the plaintiff
were contaminated by sewage from the institution operated by the defendants.
The court stated: "It is a well-settled law that if a person render the
water of another impure by filth, offal, or other substance, to his injuries*
he thereby creates a nuisance, under our statute as well as the common law>
which can be abated as such" (426). The court enjoined the defendant from
maintaining this nuisance and awarded damages for injury to the reputation
of the spring as pure, for loss from sale of the water, and for reduction
in the value of the property.
Implications for Land Application Systems —
The Tennessee cases which deal, with groundwaters may present the
following problems to the builder of the proposed system. First, water from
the site of the proposed project may pollute groundwaters. The courts in
Tennessee appear to apply a strict liability standard to cases which deal
with the pollution of groundwaters. In these cases the plaintiff proves
his case when he establishes a causal connection. If water from the pro-
posed system contaminates groundwater, the builder faces the likelihood of
liability. The most promising aspect of this area of the law for the
builder is that the cases are old. Perhaps a current court would modify
the position taken by the court in these cases.
Second, water from the site of the proposed system which seeps under-
ground might interfere with surface drainage on other property. The
existing cases offer little guidance in determining the legal consequences
of this situation. The hard line assumed by the courts in Tennessee in
cases which involve the pollution of groundwaters indicates that the court
P°sltion in cases which «»cein the enlargement of
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The Tennessee law does not appear to be as favorable to land treatment
systems as the laws in some other riparian states. Many of the questions
concerned with on-land application of wastewaters have not been presented
to Tennessee courts. In addition, the Department of Public Health has some
administrative guidelines (367) that could be very restrictive when applied
to a particular situation. These guidelines, however, are used only as
design criteria and each application for a permit to establish a land
treatment system is evaluated on an individual basis (387). Data relating
to annual precipitation, water balance calculations, effluent storage, and
the proposed site's topography, geology, soils, and existing vegetation
must accompany the permit application.
WISCONSIN
Law of Nat-nrai Watercourses
Description—
Wisconsin is basically a riparian theory state (427) . The usually
simple categorization of a state as appropriative or riparian is complicated
in the case of Wisconsin because the state, starting from a riparian common
law, has enacted an extensive statutory structure that contains several
elements of the theory of prior appropriation. Statutes are much more
important to the private law of water rights in Wisconsin than in other
riparian states. It can still be said, however, that Wisconsin is pri-
marily a riparian theory state, except insofar as that doctrine has been
modified by specific legislation.
There are a great number of decisions in Wisconsin that contain
language to the effect that a riparian landowner has a right to the natural
flow of a stream without significant diminution or alteration. Most of
these are relatively early decisions; within the last forty years most of
the Wisconsin decisions have followed the reasonable use rule. Although
there are a few recent decisions applying natural flow terminology (428),
the natural flow language appears only as diota in cases won by the plaintiff
under the reasonable use analysis (427).
Except for certain statutes that qualify the riparian theory, which
wiH be discussed later in this report, Wisconsin is a typical reasonable
Use Jurisdiction. The right of reasonable use is not a property right in
ar* ownership sense, but is simply a right to use the water as it proceeds
Past the riparian's land (429). The question of what uses are reasonable
ls said to be a question of fact, to be determined case by case:
tRJegard must be had to the subject matter of the use, the occa-
sion and manner of its application, its object, extent and the
necessity for it, to the previous usage, and to the nature and
condition of the improvements upon the stream; and so also the
Of the stream, the fall of the water, its volume, velocity
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and prospective rise and fall, are important elements to be con-
sidered. (430).
Under this rule it has been held that even a substantial interference
with flow may be reasonable if necessary to a beneficial use (431), and
that the mere fact of injury to other riparians does not, of itself, prove
that a use is unreasonable (432). As a consequence of cases such as these,
Wisconsin is among the more liberal reasonable use states, permitting the
operation of any legitimate use that is conducted in a reasonable manner.
Among the uses that have been approved are watering of stock (433), pro-
duction of hydroelectric power (434), and irrigation (435).
There are cases in Wisconsin indicating that there will be liability
where a landowner can prove that he has been damaged by an unreasonable
obstruction, diversion, or pollution of a natural watercourse. Analysis of
a case may vary with the method of interference, however. While there are
Wisconsin cases indicating that a temporary or seasonal storage of water
can be reasonable, a total and permanent diversion or obstruction of a
stream is per se unreasonable. Cases involving pollution, while probably
subject to the same reasonable use standards as cases involving nonpol-
luting uses, do produce a frequent number of natural flow statements in
judicial opinions. In the context of use of water for irrigation, Wisconsin,
unlike some other riparian states, has never specifically distinguished
between such a consumptive use of water and competing non-consumptive uses.
It has been stated that in such a conflict the court would probably apply
"...the reasonable use doctrine to determine whether the particular with-
drawal was lawful under the attendant circumstances" (436).
Assuming that an aggrieved riparian could prove an unreasonable use of
water by another riparian, he will be able to seek either money damages or
injunctive relief. In either case the plaintiff will have the burden of
proving invasion of a riparian right, including proof of actual damages by a
preponderance of the evidence and proof that the damages were proximately
caused by the defendant's conduct. In an action for money damages, Wisconsin
follows the usual rule that for permanent harm, the proper measure of value
is the difference in the market value of the affected land (437); and for
temporary harm, damages will be measured by the loss in use or rental value
to the owner (438).
A riparian plaintiff could also seek injunctive relief in place of or
in addition to an action for money damages. Although there are many cases
in Wisconsin granting injunctive relief for interferences with water rights,
it is probable that Wisconsin would allow all of the traditional equitable
defenses, including the doctrine of "balancing of the equities," or "compara-
tive-convenience," as it is frequently labeled in Wisconsin. Although this
doctrine was rejected in two early cases, in one of which it was specifical-
ly stated that neither "...public convenience, nor difficulty in avoiding the
trouble can either justify or excuse the wrong..." (439), more recent de-
cisions have limited these negative holdings to actions for money damages
only. Numerous decisions have indicated that it is proper to deny injunctive
relief, relegating a plaintiff to money damages only, because of the greater
harm to be suffered by the public if an injunction were granted (440).
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A third remedy that a private complainant has in Wisconsin, against
conduct which allegedly interferes with the complainant's water rights, is
to petition the public agency in charge of regulating the ch allenged conduct.
r^^r^r,^^^
f^rr::^^^^
Co. v. Public Service Commission (441), several hundred petitioners asserted
that a dam operated by the power company caused damages to lower riparians
and to fish and wildlife in the river below the dam because of the fluctua-
tion in water level. The commission held a hearing and ordered the company
to maintain its dam so as to comply with a minimum water level "tabliBhed
by the commission. The company appealed and argued, among other grounds
that the persons who originally petitioned the commission lacked standing
to sue. The court rejected this assertion, stating that:
Private persons have an interest in the navigable streams of the
state... It must also be noted that sec. 4, art. I of the Wis-
consin constitution provides that the right ^ petition the gov-
ernment or any department thereof shall never be abridged. Thus
the original petitioners were acting within their constitutional
rights when they brought the matter to the attention of the com-
2-rss
plaint. (442)
Thus, the remedies available under Wisconsin's private law of water
rights are fairly broad. While an on-land application J^ ^^
likely to be successfully sued for money damages or an ^^^^n
against them in Wisconsin than in other riparian states and while admin
trative control in Wisconsin is not particularly OM™UJ' ^ *S publi
downstream riparians-and even non-ripa ^-f^f ^^^'
to invoke administrative processes and compel the holding o
makes litigation a more likely possibility in Wise °nf n J**"
states. The fact that even individual members of the genera
have standing to complain to the appropriate Agency does not
likelihood of a claim for money damages or an ln^n^°" f ^\^C^^xf
asserted because the remedy available to the complainants in that context
asserted, because tne remeay aeency to prevent continuation of any
would be limited to ~ or*« °f *Jjc2SS system could only be compelled by
wrongful act. Thus the ..' rules of which it was al-
reaand »
the possibility of vexatious litigation by a small handful of persons is
necessarily increased.
Certain statutes that qualify the riparian right also have a substantial
impact on the law of natural watercourses in Wisconsin. Although Wisconsin
is primarily a riparian state, an extensive statutory structure places
broad power in the Department of Natural Resources to allocate various
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aspects of water among competing claimants. Among the powers exercised by the
department are the power to: (1) regulate the level and flow of water in
navigable watercourses (443); (2) grant permits to deposit material or place
structures in navigable watercourses (444); (3) grant permits to change the
course of a navigable stream (445); (4) grant permits to construct an
artificial waterway within 500 feet of a navigable body of water (446);
(5) grant permits for construction of dams in or private bridges across
navigable waters (447); (6) grant permits to divert water from surface
streams for mining operations (448); and (7) grant permits to divert water
from a stream "for the purpose of agriculture or irrigation," or to tempo-
rarily divert surplus water to maintain the normal level or flow of a
navigable lake or stream (449). Several of these functions, and particularly
the powers relating to diversion of water for mining and agricultural
purposes, construction of dams, and maintenance of lake and stream levels,
directly affect the allocation of water, and can produce results at variance
with what would normally occur in a purely riparian jurisdiction.
For present purposes, the most important power granted to the Department
of Natural Resources is to regulate diversion of water for irrigation or
agricultural purposes. This power, which has a highly complex history, is
currently found in section 30.18 of the Wisconsin Statutes, which provides:
(1) Where Diversion is Lawful.
(a) It is lawful to temporarily divert the surplus water of
any stream for the purpose of bringing back or maintaining
the normal level of any navigable lake or for maintaining
the normal flow of water in any navigable stream, regardless
of whether such navigable lake or stream is located within
the watershed of the stream from which the surplus water is
diverted. (450)
(b) Water other than surplus water may be diverted with the
consent of the riparian owners damaged thereby for the purpose of
agriculture or irrigation but no water shall be so diverted
to the injury of public rights in the stream or to the injury
of any riparian located on the stream, unless such riparians
consent thereto. (451)
(2) Surplus Water Defined.
Surplus water as used in this section means any water of a
stream which is not being beneficially used. The depart-
ment may determine how much of the flowing water at any point
in a stream is surplus water. (452)
The remaining portions of section 30.18 of the Wisconsin Statutes
delineate the procedures for obtaining a permit, with the total effect of
the statute being to require that a permit be obtained for the temporary
diversion of surplus waters, and for the diversion of waters other than
surplus waters for agricultural or irrigation purposes. Consent of riparian
owners damaged thereby is also needed before diversion of nonsurplus waters
for agriculture or irrigation is lawful.
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Section 30.18 of the statutes is important in considering Wisconsin's
law of natural watercourses for two reasons. One, because a land application
system may have to obtain a permit under this section, and if a permit is
required, other riparians may be able to block the system's operation.
Two, because this section's existence and operation may modify (in many
situations where the stream's use is for agricultural or irrigation purposes)
the water law analysis that would otherwise occur under the riparian,
reasonable use common law that exists in Wisconsin.
The determination of whether compliance with section 30.18 is necessary
hinges on the interpretation of several of the statutes' terms, including
"diversion," "surplus water," and "agricultural or irrigation." The latter
phrase is most important for the purposes of this report; the characteriza-
tion of the purpose of the on-land disposal project will control whether a
permit is required and whether the consent of downstream riparians must be
obtained before the water may be diverted in this manner. If the project's
major purpose can be effectively characterized as being pollution control,
improved sewage treatment, or the like, the permit and consent requirements
can be avoided. On the other hand, characterizing the purpose as agricul-
tural or irrigation may cause problems; although the permit procedure
established by section 30.18 is not unduly onerous, the effective veto
allowed to downstream riparians is troublesome. The Wisconsin Attorney
General has defined downstream riparians as "...those along the entire
length of the stream below the proposed diversion and to such a point where
the stream flows into a larger stream and loses its identity" (453). -Using
this definition, downstream riparians could often number in the hundreds,
with the good possibility that someone will disagree with the proposed use
and veto the project.
Another possible way to avoid the impact of section 30.18 of the
statutes would be to argue that, since the system is diverting wastes, not
water, it does not fall within the statute. There is no legal authority
considering the validity of this argument. In a situation where only
wastes are diverted, it would appear to be persuasive; but in a situation
where the system's normal operation diverts some water as well as wastes,
it is equally arguable that the diversion of water, even incidental to
diversion of wastes, requires a permit.
In addition to the possible need to secure a permit, it is important
to note that the existence of section 30.18, together with the power it
gives to competing riparians, introduces an element of prior appropriation
theory into the Wisconsin law of natural watercourses. Two recent and
related decisions are instructive in this regard.
In Omevnik V. State (454), the defendant was charged with violating
section 30.18(3) of the Wisconsin Statutes by diverting waters other than
surplus waters from Flume Creek and Klondike Creek for agricultural or
irrigation purposes. After conviction, he appealed, raising several
questions regarding the scope and validity of the statute. The supreme
court held that: (1) the statute applied to diversions from non-navigable
as well as navigable streams; (2) the permit requirement was not limited to
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stream-to-stream diversions; (3) a permit was required for irrigational
diversion of surplus water; (4) the permit requirement did not deny de-
fendant equal protection of the laws; and (5) the statute did not deprive
defendant of property without just compensation.
The defendant Omernik had argued that the statute deprived him of
property without "just compensation" since the riparian right to use water
had been clearly stated in prior Wisconsin decisions to be a "property"
right and the statute did not provide for compensation of the loss of this
right. This would appear to be, on the surface at least, a strong argument,
but the supreme court responded by stating that there was a distinction
between the power of eminent domain and the police power:
The former recognizes a right to compensation; the latter does
not. Without repeating the extended analysis of ... the dis-
tinction between eminent domain and police power in ... Just
v. Marinette County* we see sec. 30.18, Stats., as the state's
exercise of its police power to protect public rights and to
prevent harm to the public by uncontrolled diversion of water
from lakes and streams. While the statute does not secure for
the state a benefit not presently enjoyed by its citizens, it
does seek to prevent the public harm of dry riverbeds replac-
ing flowing streams. (455)
Consequently, in the second case arising out of the same basic fact
situation, Omerniak v. Department of Natural Resources (456), the same
riparian owner (note different spelling of name), now the plaintiff attacked
other aspects of section 30.18 of the Wisconsin Statutes. The plaintiff
argued, among other grounds, that the basic permit procedure of section
30.18 violated due process "... because it provided no means by which the
rights of riparian owners could be determined and yet granted to each
riparian owner who was beneficially using the waters of the streams a veto
over the granting of the irrigation permit without any showing of injury"
(457). The Wisconsin Supreme Court agreed that:
Because the department does not have the power to grant a permit
over the objection of other riparian proprietors, the plaintiffs
in this case have no means of securing a permit for the irriga-
tion they contemplate when objection is made. Thus, they have
no means of enforcing a common law riparian right of irrigation.
This is because irrigation is prohibited without a permit. (458)
However, the court concluded that this implicit abrogation of the common
law riparian right of irrigation did not make the law unconstitutional.
Conceding that the permit procedure had the result of introducing an element
of prior use in the Wisconsin water law which was not there at the common
law, the court concluded that the wisdom of this policy may be debatable,
but it is a legislative, not a judicial determination.
Thus, Wisconsin is no longer purely a riparian state where a proposed
diversion is for agricultural or irrigation purposes. Given a broad inter-
pretation of section 30.18 of the statutes adopted by the Wisconsin Supreme
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Court, it can be seen that the posture of an on-land application system
under the Wisconsin law of natural watercourses will depend to a great
degree on its characterization as "agricultural or irrigation," or as
something else. If the system is "agricultural," and will involve the
diversion of any water from a natural watercourse, its rights to what water
will be determined by the appropriative structure of section 30.18. If the
system can be characterized as other than "agricultural" (or "irrigation"),
Or if it envisions no diversion of water from a watercourse, section 30.18
will be irrelevant and its operation will be determined in accordance with
the other Wisconsin regulations and Wisconsin's basic riparian common law.
Insofar as the question presented involves possible trace pollutants re-
turned to the watercourse, rather than diversion from a watercourse, section
30.18 is again irrelevant and the result of a particular case will be
determined under the reasonable use standards outlined above.
Indications for Land Application Systems—
The Wisconsin law of natural watercourses, as expressed by the Wis-
consin Statutes and cases, does not distinguish between the different types
of land application systems. This law is concerned instead with the effect
of any proposed use on the quality and quantity of the water flowing in a
natural watercourse. Wisconsin's Department of Natural Resources, however,
has administrative regulations governing systems utilizing land disposal of
liquid wastes (459). These regulations do make a number of distinctions
between various methods of application, such as absorption pond systems,
ridge and furrow systems, spray irrigation systems and septic tank/field
absorption systems, which distinctions will be discussed later (460).
With regard to possible interference with the flow of a natural water-
course, Wisconsin law has generally favorable implications although it does
Present one problem not found in other riparian states. For the purpose of
determining whether the application system is a reasonable use of water,
any of the possible methods of application would be considered to be "irri-
gation" within Wisconsin law, and Wisconsin has held that irrigation is a
reasonable use of the waters of a natural watercourse. Also, since Wiscon-
sin has enacted regulations specifically covering land application systems,
such systems have, in effect, been determined by the legislature to be rea-
sonable as long as operated with certain precautions.
Even though a water use is reasonable, litigation by a downstream
riparian remains a possibility, in Wisconsin as in other riparian states.
In addition to the basic problem of possible litigation, a possibility
Wisconsin shares with other riparian states, there is one legal problem
that is unique to Wisconsin. Specifically, if the land application system
is deemed to be "irrigation" within the meaning of section 30.18 of the
1975 Wisconsin Statutes, a separate permit will be required before diversion
°f water will be allowed, and under that section any downstream riparian
can veto the permit and, consequently, the entire project.
As in other riparian states, however, there are several steps that can
be taken in the establishment and operation of land application systems to
minimize all of these possibilities of liability. In addition to the
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recommendations outlined for Arkansas and for natural watercourses in
riparian states in Volume I of this report, the following recommendations
pertain exclusively to Wisconsin.
1. In establishing sites for land application systems, it should be
determined whether the stream in question has been designated a
"trout stream" by the Department of Natural Resources within the
meaning of section 30.18(5) of the Wisconsin Statutes. If it has
been so designated, even surplus waters may not be diverted with-
out a permit.
2. In establishing the system, as a practical matter care should be
given to how the system is characterized. In other riparian
states, it is best to characterize the system, for water use
purposes, as a form of "irrigation," since irrigation is a permis-
sible use of water in all riparian states. While this is equally
true under Wisconsin's basic water law, in Wisconsin a character-
ization of the system as "irrigation" might require compliance
with section 30.18 of the statutes. However, characterizing the
system as "pollution control" or "pollution abatement" would
assist in avoiding the provisions of that section.
If the matter were ever litigated, the court or agency would make
its own decision regarding whether the application system met the
definition contained in section 30.18, but the label applied by
the system operators to their system could be legally relevent.
This does not mean that the word "irrigation" can never be used
or mentioned in connection with a land application system, but
that in Wisconsin it will always be advisable to emphasize the
other aspects of the system as well.
3. Because of the problem with section 30.18 of the statutes, serious
thought should be given in Wisconsin to entirely avoiding diversion
of wastes from a natural watercourse (as opposed to diversion
before the wastes enter a natural watercourse). If no wastes are
diverted from watercourses, no waters will be diverted either,
and section 30.18 will not apply to the system, without regard to
how the system is characterized.
The second way in which the law of natural watercourses intersects
with land application systems is if, after application, trace contaminants
remain on the land and are eventually washed into a natural watercourse,
if, in a particular situation, some contaminants drain into a natural
watercourse, then the following consequences may ensue. It is clear that
there can be liability in Wisconsin for the pollution of the waters of a
natural watercourse. This can occur even with a use that is "reasonable;11
it being recognized that even reasonable uses may harm other interests and
should compensate those harmed as part of the cost of operation. Although,
in legal theory, the relief an injured party could receive could include
either money damages or an injunction, as in other riparian states the
likelihood of either type of relief being awarded is remote.
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The factor which makes Wisconsin law slightly less favorable for our
purposes than the law of other riparian jurisdictions is that, unlike most
other states, Wisconsin does not limit the power to sue for harm to a
natural watercourse to downstream landowners. While only such a landowner
could seek money damages for harm to land, under the "public trust" doctrine
a casual citizen in Wisconsin could start either judicial or administrative
proceedings for injunctive relief. This broad right to sue does not increase
the likelihood of the system's being enjoined; it does, however, increase
the possibility of litigation.
As is true in other riparian states, there is no way the system's
operators can totally eliminate the possibility of liability for trace
pollution of a natural watercourse. Even if all necessary operation permits
under Wisconsin law are secured, these permits do not shield the operator
from possible liability; they would at best be strong evidence of reasonable
conduct in a water rights lawsuit. There are, however, several steps that
can be taken to minimize the possible risk. In addition to the recommenda-
tions previously mentioned for Arkansas and natural watercourses contained
in Volume I of this report, pertinent Wisconsin administrative regulations,
discussed later, should be observed.
Law of Surface Waters
Description—
Wisconsin defines surface waters as including "...waters from rains,
springs or melting snow which lie or flow on the surface of the earth but
which do not form part of a watercourse or lake" (461). As in the case in
other riparian jurisdictions, there is a distinction in Wisconsin law
between a landowner's right to use the surface waters that come to his land
and his right to alter or obstruct the flow of surface waters that come to
his land and his right to alter or obstruct the flow of surface waters
across the land of others. Although there is no Wisconsin decision specifi-
cally determining the ownership of diffuse surface waters, it has been
stated that "...standing water may be held in private ownership" (462). It
has also been held that riparian rights do not apply to diffused surface
waters, and that a lower landowner has no right to insist on the flowage of
surface waters onto his land if the upper landowner decides to use the
water before it leaves his land (463). It would appear, therefore, that in
Wisconsin a person who collects diffuse surface waters on his own land owns
that surface water and can use it without liability to adjoining land-
owners. An on-land application system that gathers surface waters with
effluent, and does not discharge it across the land of another, would thus
be immune from possible liability.
The law is somewhat different when the landowner's conduct causes
either acceleration of surface waters across the lower lands, or diversion
across lands which they would not ordinarily flow. Until recently, Wis- .
consin had been in a state of transition, having departed from the common
enemy rule to a middle position incorporating elements of both common enemy
and reasonable use analysis. Recently, however, Wisconsin has flatly
rejected the common enemy rule and has adopted the reasonable use rule to
resolve issues concerning surface waters. In State V. Deetz (464), the
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defendants purchased land on a bluff overlooking Lake Wisconsin for the
purpose of building a residential subdivsion on what had previously been
crop and pasture land. Erosion and runoff was minimal until construction
began, but construction resulted in a large amount of sand washing down
from the bluff, causing the formation of sizable deltas in the lake and
impeding its navigability.
In vacating the lower court's order dismissing the complaint against
the defendants, the Wisconsin Supreme Court rejected the common enemy rule
because it no longer comported with the realities of our society, and
adopted the reasonable use rule. Applying this rule, the court said: "We
are satisfied that the gravity of the harm is prima facie provided by the
evidence. That evidence, however, is but one side of the equation of
reasonableness. The gravity of the harm is to be weighed against the
utility of Deetz' conduct.... Accordingly, the cause must be remanded for
further proceedings in order that the defendants may have the opportunity
to submit evidence on social utility of their conduct" (465) .
Since Wisconsin now follows_the reasonable use rule with regard to
surface waters, questions of possible liability for interference with such
waters will generally be resolved in accordance with the reasonable use
analysis as developed with regard to natural watercourses. Basically, the
Wisconsin law has more favorable implications for land application systems
when both pollutants and diffused surface waters are retained at the ap-
plication site, than when both are dispersed to adjoining lands.
Implications for Land Application Systems—
In the case of trace pollution of surface waters crossing the lands of
another person, Wisconsin has no law directly on point. Probably Wisconsin
would apply its recently announced surface water rule of "reasonable use"
to such pollution. That is, pollution for no valid purpose might be unlaw-
ful, but pollution in connection with an otherwise reasonable use might be
lawful. Since, as we have established with regard to natural watercourses,
land application systems are probably reasonable uses under Wisconsin case
law, it would be very unlikely for a land application system in Wisconsin
to be prevented from operating because of trace pollution of surface waters.
Although the system operators might have to pay for damages caused to
adjoining landowners, the possibility of such liability is even less
likely in the surface water category than it is in the natural watercourse
category. This is because: (1) the potential claimants for harm to surface
waters will be limited to the immediately adjoining landowners, rather than
including any person, as in the 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 generally made of
surface waters, 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.
On the other hand, if the system collects both surface waters and
trace pollutants on its property, there is no possibility of liability 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
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insi8t on their continued flow. The upper landowner has the right to
collect all surface waters on its property.
riven these basic principles, the recommendations for Arkansas and
those confined in Volume I of this report for land application systems as
tSTrSS lo surflce waters in riparian states apply to Wisconsin In
addition, the Wisconsin Administrative Code specifically requires that in
operating a land disposal system:
soll!and! thus, minimize the carrying of pollutants into surface
waters (466) ; and
Discharges be maintained within the system's perimeter, even if
Sis involves also containing diffused waters-such as rainfall-
within the system's perimeter (467).
Law of Groundwater
well must use due care to prevent the waste oi wace ,
unnecessarily diminish the flow °f -ter in other art esian^ell ^ ^
vicinity; and that a person who wasted water w°ux ^
the person whose water flow was thereby diminished. The ™» ^ ^^
followed shortly thereafter, ifolved an area with a ^
Two of these were on Merkel s land, and he was the only ^ ^
area who did not cap his wells when not in use ^ ^ ^ ^ ^
Merkel deliberately and ^^^^^r flowing away unused, in order to
capacity all the time, with much wate^JiOWNJLhbor Huber sued, and the
interfere with his neighbors' water »MJ-Jf*Sd use the water from his
Wisconsin Supreme Court held ^at a landowner could u^ ^ ^ ^
well or let is run unused '^^^f ±f known as the most extreme example
regardless of his motivation. The case is modifled the absolute
of the rule of absolute ownership. AJ.J. °"l!: hat the Well-drilling
ownership rule at least to Jhe^extent of h°^ s reffiained the Wisconsin
landowner could not act maliciously, me nuv*
law for over 70 years.
Finally, in 1974, the
case. In State v. **Ma ^^f J^m willin ordei to lower the
Pumped 55,000 gallons of water Jf^^nSllnB to install a sewer
water table to a sufficient depth t tunnexing
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system, approximately 40 feet below the ground surface. An action com-
menced by the State alleging that the pumping constituted a public nuisance
was dismissed by the trial court which, following the Hubev rule, held that
there was no cause of action on the part of an injured person concerning
his water table. On appeal, the supreme court overruled Hubev and adopted
the "American" rule. This rule states that one who withdraws groundwater
from the land and uses it for a beneficial purpose is not subject to
liability for interference with the use by another unless the withdrawal
causes unreasonable harm. The court, in commenting on the scope of this
rule, stated: "Thus the rule preserves the basic expression of a rule of
nonliability—a privilege if you will—to use ground water beneath the
land.... The rule would place the matter of cost on the same rational
basis as the rule applicable to surface streams, the reasonableness of
placing the burden upon one party or the other" (471).
Strictly speaking, however, the present rule in Wisconsin is not the
same rule of "reasonable use" applied to surface streams. Instead, Wis-
consin has adopted what may be considered an "unreasonable use" rule, that
is, one which considers any use of groundwater prima facie reasonable,
placing the burden of proving unreasonableness on any who allege they are
being harmed. In addition, it should be noted that this standard is directed
only at cases alleging excessive use of groundwater. The question of
whether this standard would also apply in situations involving pollution of
groundwaters has not yet been answered by the Wisconsin courts.
Wisconsin has only two reported cases where damages for pollution of
percolating waters were sought. In Anstee v. Monroe Light & Fuel Co.
(472), the plaintiff alleged, among other things, that large quantities of
industrial wastes from the defendant's gas plant had contaminated his well,
making the water unfit for domestic or any other use. In sustaining the
trial court's judgment for both injunctive relief and money damages, the
Wisconsin Supreme Court stated that the plaintiff's damages were special
and an action for private nuisance maintainable, even though 20 other wells
in the same vicinity had been similarly "affected. In affirming the judgment,
the supreme court did not discuss the reasonableness of the defendant's
conduct.
In a later case, Enders v. Sinclair Refining Co. (473), plaintiffs
brought an action for money damages alleging that seepage from defendant's
oil storage tanks had contaminated their well. In its holding dismissing
plaintiffs' complaint, the supreme court stated: "The burden of showing
that there was no other possible source of pollution was on the plaintiffs.
The defendant was not required to prove that pollution from other sources
did enter plaintiffs' well, unless and until the plaintiffs showed there
was no other possible source of pollution" (474).
While it is difficult to predict from these two cases the present Wis-
consin court attitudes toward actions arising from the pollution of ground-
waters, it is apparent that liability could ensue, but probably only under
the theories of nuisance or negligence. This would allow room for proof of
the reasonableness of the defendant's use in cases where injunctive relief
is sought. It appears that meeting the requisite burden of proof would be
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a substantial problem for a potential plaintiff.
Implications for Land Application Systems—
With regard to the possibility of trace contaminants reaching ground-
water supplies, Wisconsin law has reasonably favorable implications for
establishment of land application systems. Although Wisconsin has not spe-
cifically adopted reasonable use analysis in the groundwater area, the rule
it has announced is more favorable to the operation of land application
systems than a reasonable use rule would be. Under a reasonable use rule,
the system operators, as defendants in a lawsuit, would bear the burden of
proving their use to be reasonable. Under the Wisconsin rule, however,
there can be no liability unless the plaintiff succeeds in proving the use
to be unreasonable. This shifting of the burden of proof improves the
system's already strong legal posture, since it is highly likely that such
a use would be said to be reasonable in Wisconsin.
From the point of view of the operators of a land application system,
if liability were asserted because of pollution of a groundwater supply,
the worst that could happen would be a similar analysis as would happen in
a case involving pollution of a natural watercourse. Although suit in
Wisconsin could be brought by any member of the public, most probably any
action would be brought by nearby landowners. In order to recover money
damages, those landowners would have to show that the system polluted a
groundwater supply, that they were drawing from the same 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 un-
likely 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. And, while some states apply a stricter standard to ground-
water than to natural watercourses, and hold a polluter "strictly" liable—
that is, liable without proof of negligence—Wisconsin does not seem to be
one of these states. Even though the case law is sparse, it indicates that
a plaintiff would have to show that the defendant was the sole cause of the
Pollution, and that the defendant could prove the reasonableness of its
conduct as a defense, at least to a suit for an injunction.
Where the legal complaint is that, in the absence of pollution, ground-
water recharge from an application site raises the water level of the
groundwater, the plaintiff will have an even more difficult time in at-
tempting to sue the system's operators. If there is no provable negligence
in the operation of the system, and no intentional harm being done, there
are no cases in Wisconsin allowing any recovery by such a landowner. The
recently announced Wisconsin rule envisions the possibility of liability
only in the case of withdrawals lowering the water table. At worst, a case
involving the raising of water table would be treated under the same rules
applicable to a pollution case; at best, there might be complete immunity
from liability.
There are precautionary steps that can be taken to further minimize
the possibility of liability. In addition to the steps outlined for Arkansas
and in Volume I of this report relating to groundwaters for riparian states,
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the following provisions of the Wisconsin Administrative Code relate directly
to land application systems and groundwater supplies:
1. During application, ponding is permissible under the Wisconsin
regulations only as a temporary condition following precipitation
(475);
2. If a ridge and furrow system is used, ridges should not be inun-
dated except during precipitation (476);
3. In operation of the system, no discharge should exceed the maximum
hydraulic loading rate, which rate will be specified in the
permit received from the Department of Natural Resources (477);
and
4. Groundwater monitoring should be undertaken in the area of the
system, at locations specified in the Wisconsin Pollutant Dis-
charge Elimination System (WPDES) permit (478).
Summary
Statutory law, common law, and administrative regulations in Wisconsin
all favor on-land application of wastes. The application of the reasonable
use rules in cases concerning natural watercourses and diffused surface
waters, and the use of the modified rule of capture in cases concerning
groundwaters, serve to create a reasonably favorable legal climate for an
on-land application system operating within the requirements of the perti-
nent administrative regulations.
A proposed on-land application system would have to comply with the
local zoning regulations of the particular locality; due to the wide varia-
tions in local regulations, discussion of local zoning is beyond the scope
of this report. More importantly, the proposed system would have to comply
with the provisions of chpater NR 214, Wisconsin Administrative Code, in
order to receive a permit to operate from the Department of Natural Re-
sources. The Department of Natural Resources is directed by statute to
"...encourage the design of publicly owned treatment works which provide
for the recycling of sewage pollutants by using them in agriculture,
silviculture or aquaculture" (479). In furtherance of this goal, the
statutes also require that all plans submitted for new treatment1works
contain a "...feasibility plan on using ultimate disposal of pollutants to
land rather than to air or the waters of the state" (480).
The Department of Natural Resources, drawing its powers from chapter
147 of the Wisconsin Statutes, has promulgated administrative regulations
applicable to facilities licensed under that chapter using land disposal of
liquid wastes (459). These regulations establish discharge limitations and
monitoring requirements applicable to discharges of liquid wastes to land
disposal systems from publicly owned treatment works, privately owned
domestic waste treatment works, and point sources (481). "Land disposal
systems" are defined to include either an absorption pond system, a ridge
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and furrow system, a spray irrigation system, and/or a septic tank and
field absorption system (482).
The owner or operator of such a system is required to monitor dis-
charges of liquid wastes and pollutants, and to comply with the discharge
limitations of chapter NR 214 of the Wisconsin administrative Code.
Basically, it is provided that no discharge shall exceed the maximum hy-
draulic loading rate, which rate will be specified in the permit and will
have been determined by the Department of Natural Resources after con-
sidering the system's design capacity, past operating performance, site
conditions including soil and geological characteristics, and other relevant
data (483). In addition, there can be no discharge of private domestic
waste or municipal waste to either an absorption pond system, ridge and
furrow system, or spray irrigation system without prior secondary sewage
treatment (484).
In addition to these basic requirements, there are more specific dis-
charge regulations aimed at each type of land disposal system. Absorption
pond systems are further restricted by the requirement that discharges to
such systems be retained within the system's perimeter (467), and a number
°f specific requirements are directed at spray application systems, includ-
ing: (1) confining of discharge during irrigation to the perimeter of the
system (485); (2) alternate distribution of discharge to different sections
of the system to maintain the soil's absorptive capacity (466); (3) limiting
volume to prevent ponding except for temporary conditions following precipi-
tation (475); and (4) keeping the discharge free of materials that will
interfere with the operation of spray nozzles (486). Ridge and furrow
systems also are required to retain discharges within the system's perimeter,
to allow alternate distribution of discharge to different sections, and to
Prevent inundation of ridges except following precipitation. Finally, in
addition to the basic requirements, septic tank and field absorption systems
must be limited to prevent flow to or ponding upon the ground surface
(487).
Chapter NR 214, Wisconsin Administrative Code, also establishes detailed
requirements for monitoring both discharges and groundwater. Several of
the discharge monitoring requirements vary with the type of facility from
which discharge is made. Thus, discharges from aerated lagoon facilities
must be monitored at least daily for pH and weekly for BOD, suspended
solids, and fecal coliform bacteria (488); discharges from stabilization
Pond facilities operated as a flow through system must be monitored weekly
f°r pH, twice monthly for BOD and suspended solids, and twice quarterly for
fecal coliform bacteria (489); and discharges from stabilization pond
facilities operated on a fill and draw basis must be monitored daily for
total daily flow, weekly for total daily flow and pH, twice monthly
for BOD and suspended solids, and twice quarterly for fecal coliform
bacteria (490). Other discharges to land disposal systems must be monitored
for total daily flow, with the frequency of the monitoring varying with the
system's hydraulic capacity (491).
Groundwater monitoring is generally required at locations specified in
the Wisconsin Pollutant Discharge Elimination System (WPDES) permit (478).
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Groundwater monitoring will be required in all cases; the frequency of
which depending upon the total daily flow:
1. Monthly for systems with hydraulic capacity of 20,000 gallons per
day or less (492);
2. Weekly for systems with a hydraulic capacity of more than 20,000,
but less than 100,000 gallons per day (493); and
3. Daily for systems with a hydraulic capacity of 100,000 gallons
per day or more (494).
Once the system receives its permit under chapter NR 214, it is free
to operate. Obviously the limitations set forth in the permit, most par-
ticularly the discharge and monitoring requirements, must continue to be
met.
Even after the chapter NR 214 permit is obtained and complied with, it
is always possible that private persons could institute legal action in
Wisconsin because of real or perceived grievances caused by the system's
operation. Even though proof of compliance with the permit would be
evidence that the system was not a legal nuisance, compliance with the
permit does not bar a lawsuit. Since, as has been discussed, the typical
on-land application system can alter traditional drainage patterns of
surface water, groundwater, and natural watercourses, a lawsuit on any of
the theories herein discussed is always possible. Indeed, there is more
chance of litigation in Wisconsin than in other riparian states, because in
many instances the ability to sue is not limited to downstream riparian
landowners.
As long as the permit is being complied with, however, there is little
chance of a system operator being successfully sued for damages or an
injunction. Wisconsin's substantive water law in all categories of de-
termination—judicial, statutory, and administrative—is favorable to the
development and operation of a carefully run land application system.
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SECTION 4
APPROPRIATION STATES
ARIZONA
.Law of Natural Watercourses
Description—
Arizona, one of the eight Colorado Doctrine states, recognizes the
Principles of prior appropriation as the only system of water rights suit-
able to the state's arid environment (495). However, unlike its neighbor
Colorado, Arizona has incorporated the doctrine of prior appropriation
into an all-inclusive pattern of statutory regulation. The basis of the
regulation is the classification of certain types of water as appropriable
and, therefore belonging to the public (496). Accordingly, this statutory
classification operates as a limitation and "...excludes all waters not
included therein" (497).
Supervision and control over state waters resides in the Arizona State
Land Department (498), to which one must apply to receive a permit to
appropriate water. The statutory requirements for receiving a permit are
set forth later in this report. In addition to the statutory requirements,
Arizona is one of several states with specific regulations governing use of
reclaimed wastes on land (499). These regulations will also be discussed
later.
The definition of natural watercourse prevailing in Arizona does not
differ significantly from that accepted in other appropriation jurisdictions:
A stream is a watercourse having a source and terminus, banks
and channel, through which waters flow, at least periodically.
Streams usually empty into other streams, lakes, or the ocean,
but a stream does not lose its character as a watercourse even
though it may break up and disappear. Streams are usually
formed by surface waters gathering together in one channel and
flowing therein. The waters then lose their character as sur-
face waters and become stream waters. As we have observed, a
continuous flow of water is not necessary to constitute a
stream and its waters stream waters. (500)
Mere surface drainage resulting from unusual freshets or other extra-
ordinary causes does not qualify as a watercourse under the definition
accepted in Arizona (501). On the other hand, the Arizona courts have
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Interpreted the definition of natural watercourse to include ravines or
washes where there exists a well-defined channel, even though water flows
at irregular intervals and arises from an intermittent source.
The right to appropriate waters classified as appropriable by the
Arizona legislature is given to any person, and he who is first in time, is
first in right (502). This right is contingent upon one's complying with
the necessary statutory procedures concerning the securing of a permit to
appropriate water (503). Among the elements enumerated in the statutes to
be considered by the State Land Department in granting a permit are:
A. As between two or more pending conflicting applications for the
use of water from a given water supply, when the capacity of the
supply is not sufficient for all applications, preference shall be
given by the department according to the relative values to the
public of the proposed use. (504)
B. The relative values to the public for the purposes of this
section shall be:
1. Domestic and municipal uses....
2. Irrigation and stock watering.
3. Power and mining uses.
4. Recreation and wildlife, including fish. (505)
Although the foregoing statute appears to establish a preference
relationship among the listed uses, it is still unclear whether or not this
relationship is a "true" preference. If so, "...the preferred use (could)
be exercised without regard to other classes of users or their priority
rights and without payment of compensation" (506). However, the statutes
clearly state that:
A. The department shall approve applications made in proper form
for the appropriation of water for a beneficial use, but when the
application or the proposed use conflicts with vested rights, is
a menace to public safety, or is against the interests and welfare
of the public, the application shall be rejected. (507)
B. An application may be approved for less water than applied for
if substantial reasons exist therefore, but shall not be approved
for more water than may be put to a beneficial use.... (508)
Since this provision allows the department to exercise broad discretion
in approving or disapproving an application for a permit to appropriate
water, considerations of preference may effectively be eliminated. In
other words, the department may establish any number of limitations upon a
use of water before granting a permit to a prospective appropriator, con-
sequently providing for the protection or promotion of desirable uses. In
any event, the department is obligated to respect, and the state law
recognizes and protects, existing vested rights in water.
If the application for an appropriation permit is approved, the
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applicant can complete his diversion works or other necessary construction
and apply the diverted water to a beneficial use in order to perfect his ap-
propriation (509). The construction must be started within two years after
the approval of the application is given; it must be prosecuted with reason-
able diligence and completed within a reasonable time, not to exceed five
years from the date of approval, unless an extension of time has been given
by the department (510). As to what date is important in establishing prior-
ity among the permittees, it is generally the law in most jurisdictions re-
quiring permits that the date of the application will control (511). This
appears to be the case in Arizona, although there is case law to the effect
that, since the right to appropriate water is a contingent right under the
permit system, a person's priority dates from the time when full compliance
with the statutory procedures is complete (512). This rather vague statement
could be interpreted to mean that an actual beneficial use must be initiated
before perfection of the right and priority are obtained. However, the
more consistent reading would require only that the application meet the
requisites of the Arizona statutes and consequently, the date of priority
would be the date of the filing of the application (513).
A decision made by the Arizona State Land Department respecting a
particular application for a permit to appropriate is appealable by either
the applicant or any other person whose rights are affected thereby.
However, in a situation where a party claims that a decision to allow a
permit to appropriate water violates his prior existing rights to appropriate
water from the same watercourse, because all the water sought to be ap-
propriated by the applicant has already been appropriated, the party ob-
jecting has no right of appeal for the reason that, under the procedure
established for the granting of a permit the department can in no way
affect the vested rights of prior appropriators (514).
Conflicts as to the relative rights of appropriators on a particular
body of water are resolved by petitioning the State Land Department for a
hearing as to the claims. The department has the power to hear and take
testimony, and make necessary examinations to determine the respective
rights. However, if a court has previously determined rights to the water
as between the contesting parties, or if a court has made a determination
as to the respective dates of appropriation, these are binding on the
department and cannot be abrogated thereby.
In Arizona, as in other Colorado Doctrine states, a senior appropriator
cannot be deprived of his rights to the waters by subsequent appropriators,
either through diminishing the quantity or the quality of the water used by
the senior right (515). If a junior appropriator should interfere with the
senior's ability to obtain the senior's permitted quantity of water, the
senior appropriator may be able to compel the junior user to deliver the
requisite amount of water at designated points and at the junior's expense
(516).
Just as a junior appropriator is prohibited from adversely affecting a
senior's right to water, a senior water user owes a duty to avoid harming
subsequent users when seeking to expand or change his particular use (517).
A prior appropriator's injurious practices may be stopped by a "proper"
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action, that is, an action for abatement. A junior right may also compel a
senior*use to release water which the senior right cannot beneficially use
(518). In addition to available civil remedies for harm done by both
junior and senior users, Arizona Statutes provide for criminal penalties
for the violation of the regulations governing the use of appropriable
water (519).
Thus, if the withdrawal of wastes from a natural watercourse also in-
volved the withdrawal of stream water, the system operators would have to
comply with the statutory permit requirements. A stipulation as to the
amount which would be allowed to be diverted would be made; and any subse-
quent increase in water drawn would have to be approved by the State Land
Department. No withdrawal would be allowed if such would interfere with
prior existing rights on the stream.
Pollution of any appropriable water source is actionable, for to allow
any water user to pollute his source is to effectively allow that individual
to deprive all other users of their legally authorized appropriation (520).
The extent of the pollution and its harm to other users is a factual
question, and, in order for a plaintiff to receive relief under the law, he
must show a substantial injury. Thus, if a land application system con-
taminated a natural watercourse to the extent of causing a substantial
injury to any appropriator (be they junior or senior to the waste diversion),
the waste diversion system would be liable for the damage done.
The general rule of "first in time, first in right" also controls the
distribution of water between appropriators during periods of water scarcity:
During years when a scarcity of water exists, owners of land shall
have preference to the water for irrigation according to the dates
of their appropriation or their occupation of the lands, either by
themselves or their grantors. The oldest titles shall have prece-
dence. (521)
This reference to older titles having preference over subsequent ones is
not a true preference, but a confusion of preference with priority.
The right to the diversion of water is a right appurtenant to the land
upon which the water is used:
...a water right is attached to the land on which it is benefi-
cially used and becomes appurtenant thereto, and that the right
is not in any individual or owner of the land. It is in no
sense a floating right, nor can the right, once having attached
to a particular piece of land, be made to do duty to any other
land, with certain exceptions, e.g., where the land is washed
away. (522)
The exceptions to the appurtenance rule can be found in the Arizona
statutes, which allow for transfers of water rights and place limitations
upon any severance or transfer sought by the individual water user (523).
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The statute, however, does not apply to the situation where the appropriator
merely wishes to change his use without transferring it to other lands. A
change in the place of use can be accomplished as long as it does not
impair other existing rights, be they senior or junior to the water user
seeking the change (524), but a change in the nature of the use of water
cannot be made without the approval of the Arizona State Land Department.
The department is authorized to rule on petitions for changes in use of
water appropriated for domestic, municipal, or irrigation uses.
Implications for Land Application Systems—
Arizona law makes no provisions for a preferred method of land applica-
tion of wastes. The major concern of the law governing water use is that
any proposed diversion must be made for a beneficial purpose. Arizona law
will have the following implications with regard to the possible effect of
an application system on the quantity of flow of a watercourse.
1. Since the majority of natural watercourses in Arizona 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 limitations 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), preference is not as sig-
nificant a concept in Arizona as it is in Colorado because of the
broad discretion of the State Land Department.
3. Any appropriation for waste purposes junior to any other appro-
priative right will be liable for compensation if the appropriator
requires a quantity of water which will adversely affect the
earlier right's duty.
4. Any pollution caused by a waste system which causes substantial
harm to a downstream appropriator must be compensated regardless
of any "priority" or "preference" relationship.
5. It is possible, although not certain, that in order to obtain a
permit to appropriate water from a stream for use in connection
with a land application system, an estimate of the quantity of
water needed and the contaminants expected to escape into the
watercourse may have to be submitted to the State Land Department
for consideration before a permit will be issued.
In an effort to minimize interference with other appropriative rights
because of impact on quantity of flow, and therefore avoid liability for
damages, the steps outlined for the establishment and operation of a land
application system under the law of natural watercourses for appropriation
theory states in Volume I of this report should be followed in Arizona.
The second way in which the law of natural watercourses intersects
with land application systems occurs if, after application, trace
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contaminants drain into a natural watercourse. If this occurs in a specific
situation, then the following consequences may ensue. Since an appropria-
tor's right to the use of the waters of a natural watercourse is not
absolute, there can be liability for pollution of those waters. This
liability also extends to stream waters to which the former stream is
tributary. Money damages and injunctive relief are available to the in-
jured 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 and substantial injury. There is no way
the system1s operators can totally eliminate the possibility of liability
for trace pollution of a natural watercourse, but the steps outlined in
Volume I of this report and mentioned above can be taken to further minimize
the possible risk. In addition to the more general precautions, regulations
of the Arizona State Department of Health Services require that all applied
effluent must receive either secondary treatment, secondary treatment plus
disinfection, or tertiary treatment plus disinfection, prior to application
depending on the use to be made of the effluent (525) .
Law of Surface Waters
Description—
Surface waters in Arizona have to be divided into three categories—
diffused surface waters, waste and seepage waters, and salvaged and de-
veloped waters.
Diffused Surface Waters—The ownership of diffused surface waters
remains in doubt in Arizona, although a recent case has held that such
waters are not subject to the statutory procedures on appropriation. In
Espil Sheep Co. v. Black Bill & Doney Parks Water Users' Association (526),
the court reasoned that surface waters are characterized by shortlived
flows, spread over the ground and not concentrated in bodies of water
conforming to the definition of lakes or ponds. Consequently, since the
Arizona Statutes provide only that certain types of water (predominantly
well-defined bodies of water) are subject to appropriation, "surface waters"
are not included therein (527). Diffused surface waters, then, can arguably
be used by the landowner without complying with the statutes on appropria-
tion.
In Arizona only waters specified in the statutes are subject
to appropriation. However, if the common-enemy rule on the ques-
tion of liability is followed, a landowner may find it advantageous
to divert diffused surface waters in such a way as to make use of
them; stock-watering tanks are examples. By the general rule,
such water on his property would belong to the landowner. How-
ever, if Arizona were to adopt the Colorado rule on tributary
flows, the result would be different. (528)
Although it is still unclear which particular rule (civil law or
common enemy) applies to the disposition and use of diffused surface waters,
certain principles have emerged from the case law. It is clear that no
landowner can collect diffused surface water flowing across his land,
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direct it through an artificial channel, and "...discharge it in large
quantities upon the land of a lower owner to his damage" (529). However,
an interference with watershed drainage on the part of an upper landowner,
such drainage normally coursing to an existing wash or ravine which has
served as a channel for such runoff, does not lead to liability for damage
done by waters running through the ravine and over on a lower landowner's
property, if such interference did not create an excess of runoff into the
ravine. In such a case the overflowing waters are classified as "flood-
waters," (530) and no liability attaches merely because there has been a
re-routing of the drainage across a particular piece of land:
It is well established as a general rule, subject to certain
modifications herein noted, that the owner of lands through or
along the border of which a natural watercourse flows may ac-
cumulate surface water falling upon lands adjacent thereto, and
cast the same into such stream, without liability to a lower
riparian owner for damages, although the flow of the waters is
thereby accelerated and the volume increased provided that this
is done in the reasonable use of his own land. (531)
Waste and Seepage Waters—According to Arizona Statutes "flood, waste
°r surplus water" is subject to appropriation and the procedures necessary
to perfect such appropriation (496). Notwithstanding this statement of the
law, one who uses wastewater flowing onto this land cannot establish a
vested right thereto:
It often happens that the prior appropriator, in irrigating
the lower portions of his land, is compelled by the lay of the
land to let the water run off from his property to the lands of
others, in places where it is impossible to return the water to
the natural stream. And it often happens that the water flows
upon lands of those who are either not appropriators from the
stream or are appropriators much later than others, who in point
of time are entitled to the use of the water. This water is
deemed by the courts to be waste water. And the question now
arises: Can the owners of the lands on which it runs secure a
permanent right therein to its continuous use? The authorities
hold that while the water so denominated as waste water may be
used after it escapes, no permanent right can be acquired to
have the discharge kept up, either by appropriation, or a right
by prescription, estoppel or acquiescence in its use while it
is escaping, and that, too, even though expensive ditches or
works were constructed for the purpose of utilizing such waste
water, unless some other element enters into the condition of
affairs, other than the mere use of water. In other words,
the original appropriators have the right, and in fact it is
their duty, to prevent, as far as possible, all waste of the
water which they have appropriated, in order that others who
are entitled thereto may receive the benefit thereof. (532)
The,reasoning behind the exception to the general rule of appropriation
of wastewater is that the original appropriators can destroy any rights in
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such water by either utilizing the diverted water more efficiently or
ceasing the original appropriation altogether.
Salvaged and Developed Waters—These two distinct varieties of surface
water are governed by the same rule in Arizona. Under that rule the in-
dividual who makes such water available is entitled to its use:
Plaintiffs cannot rightly insist upon the continuance of a means
that causes a waste of the waters not used by them at any time.
Their rights are fully protected when water has been delivered
to their lands at the advantageous point now used for that pur-
pose in quantities equal to the amount they have appropriated to
a beneficial purpose. The defendant may, if it feels inclined,
employ means at its own expense to deliver said quantity of
water to plaintiffs' boundary lines in its ditch there, and, if
the means result in a saving of water that would otherwise be
lost in the transportation by the means at present employed to
deliver it to that point, such water so saved from loss would
become as a right the property of the defendant. (533)
However, water which was once wasted in transportation or use by the
original appropriator, but because of the employment of water conservation
techniques by the same appropriator is now available for use, cannot be
used on lands to which it was not originally appurtenant (534). The argument
made in support of this conclusion is based on the principle of beneficial
use. According to the general principle of law governing the nature of a
water use, water beneficially used on a certain piece of land becomes
appurtenant thereto and is not a private right held by the landowner.
Moreover, since an appropriator is given a particular quantity of water for
his use, he cannot subsequently increase that quantity without complying
with the necessary statutory procedures.
In summary, a landowner in Arizona who is utilizing surface waters
other than those that run in defined channels can effectively employ those
waters in any way deemed necessary.' Of course, this right is limited by
the need to exercise care when collecting such waters for use so as not to
loose them upon a lower adjoining landowner. Under Arizona law, diffused
surface water belongs to the landowner upon whose land the water flows'.
Therefore, whatever use he makes of such water is clearly within his own
discretion, limited only by the requirement of reasonableness.
Furthermore, since surface waters not confined to definite channels or
bodies of water are not subject to appropriation and the statutory controls
applicable to appropriable water, any use of such surface water cannot be
limited by a prior existing vested right. A lower adjoining landowner has
no cause of action against an adjoining landowner who utilizes all the
available surface flow normally coursing from the higher land to the lower
landowner's premises.
A use that requires an alteration in the normal course of surface
water flow across the land may not so alter the existing drainage pattern
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so as to allow an abnormal quantity of water to flow over adjacent lands,
causing injury to that property. If the alteration of the drainage pattern
does not materially increase the volume of water normally traversing adjacent
properties, then there will be no liability for the alteration, since there
has been no harm. Moreover, in furtherance of a reasonable use of property,
one can accumulate surface water and discharge it into an adjoining stream
and not be liable to landowners on the lower part of the stream for damages
done to their property as a result of the increase in speed and volume of
the stream flow.
Since appropriative rights cannot be acquired in surface waters not
confined to definite channels, pollution of such waters does not interfere
with any right of another in the use thereof:
[A] possessor's use of surface waters on his land that pollutes
them so as to interfere with another's use of them on other land
is ordinarily reasonable; the possessor is not subject to liabil-
ity unless the primary purpose of his use is to harm the other.
This rule is said to be a 'crystallization of the principle
of reasonable use generally applicable to the use of land.1
Defendant has an unqualified privilege to capture and use sur-
face waters on his land, even though he impairs the use thereof
on another's land; but, concomitantly, he cannot require another
to permit surface waters to flow onto his lands. (535)
It is clear that if the surface runoff carrying the pollutants flow
into a stream or lake, also polluting that body of water, the landowner
using the surface water would be liable to appropriators on that stream or
lake for damages resulting from his pollution. However, pollution of
surface water that does not find its way to an appropriable water body may
not be actionable, as no vested rights have been injured.
Implications for Land Application Systems—
The law of surface waters in Arizona is primarily concerned with the
right of one landowner to control and utilize the flow of surface waters
across his lands and those contiguous thereto. Although Arizona does not
have the legal presumption that all surface waters are tributary to a
stream, as does Colorado, it is still important that the operators of a
land application system take note of the surrounding topography so as not
to interfere with stream appropriators whose stream flow depends on local
surface water runoff. Furthermore, steps must be taken to avoid excessive
pollution of surface water flows in a situation where that flow is tributary
to local streams, so as to avoid possible damage liability to local stream
appropriators.
If precautions are taken to retain trace pollutants after application
within the perimeter of the application site, surface waters such as pre-
cipitation will also necessarily be retained at the application site, and
will not flow across adjoining lands as they had prior to institution of
the land application system. This retention will more frequently be
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permissible in Arizona than in Colorado, because of the basic statement of
Arizona law that diffused surface waters are not subject to appropriation.
In addition, given Arizona's case law pertaining to pollution of surface
waters, it is clear that there can be liability only where the pollutants
flow into a natural watercourse and interfere with the use of that water by
a person having a right to that water.
Given these basic principles, the recommendations made in Volume I of
this report for land application systems as they relate to surface waters
in appropriation theory states apply to Arizona. In addition, the following
points are particularly applicable to Arizona.
1. While provisions for adequate buffer zones around application
sites are generally useful to minimize the impact of surface
waters on adjoining lands, the Arizona State Department of Health
Services regulations emphasize the type of treatment that applied
effluent must receive (536), but do not contain any buffer zone
requirements. When combined with the relative lack of possible
liability in Arizona for pollution that only affects surface
waters, this means that provision of extensive buffer zones,
while perhaps desirable, is not as necessary in Arizona as in
some other states.
2. In operating the on-land application system, consideration will
generally be given to retaining discharges within the system's
perimeter. This is not as important a requirement in Arizona as
it is in other states, since such retention is neither required
by the Arizona State Department of Health Services regulations
nor impelled by Arizona's surface water law. Retention is still
desirable, however, in situations where there exists a nearby
watercourse in which other landowners may have appropriative
rights.
Law of Groundwater
Description—
Arizona has defined groundwater as "...water under the surface of the
earth regardless of the geologic structure in which it is standing or
moving. It does not include water flowing in underground streams with
ascertainable beds and banks" (537). All other groundwater is presumed to
be percolating and, therefore, not subject to appropriation, since per-
colating water is not part of the statutory classification of appropriable
water types. Consequently, the burden of proof is on the individual seeking
to establish that the water is running in an underground channel (538). If
it is established that the water indeed is part of an underground stream,
then the prospective appropriator must comply with the requisite statutory
procedures governing the appropriation of water.
Percolating groundwater is subject to ownership, appropriation (539),
or to statutory regulation, unless such water is part of what is termed a
"critical groundwater area" (540). The Arizona State Land Department is
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responsible for designating critical groundwater areas, either on its own
initiative or by petition from "...not less than twenty-five users, or one-
fourth of the users of groundwater within the exterior boundaries of the
groundwater basin or subdivision within which the lands proposed to be
included in the critical groundwater area are located, whichever is the
lesser number" (541).
One seeking to sink a well in a critical groundwater area for the
purpose of drawing water for irrigation, must comply with section 45-313 of
the Arizona Statutes, which specifies the requirements of the application
for a permit (542). Any well which was commenced prior to the time the
area in which the well is located was designated a critical groundwater
area, can be completed without procuring a permit. However, the case law
requires a signifcant commencement of construction before the area is
designated, and if the court or land department finds the commencement
insignificant, the well owner will have to comply with the statutory permit
procedures (543).
The Arizona State Land Department cannot issue a permit for the con-
struction of an irrigation well within any critical groundwater area for
the irrigation of lands if, on the date the area was declared critical,
those lands were not irrigated, or had not been cultivated within the five
previous years. Also, a permit will be issued only to landowners upon
whose property the well is to be located.
In general, Arizona applies the American rule of reasonable use to
percolating waters; that is, the percolating water beneath the surface
belongs to the landowner thereof, and he can use such water, even to the
harm of his neighbor, provided he uses that water for a beneficial use upon
the land from which it is drawn (544). A property owner seeking to main-
tain a successful action against another under the rule of reasonable use
must show an actual present harm to his groundwater supply, and that the
alleged wrongdoer's use of the extracted groundwater is not made on the
land from which it was drawn.
According to the statutory regulations controlling the use of ground-
waters, an individual or corporate water user is prohibited from transporting
or using groundwater outside of a groundwater basin (545). This limitation
is strictly construed when the land in question has been labeled a "critical
groundwater area."
The thrust of Arizona's water law in this area has been indicated by
the state's supreme court in Jarvis V. State Land Department (546). In
that case, the petitioners were seeking to have the City of Tucson enjoined
from transporting water from wells sunk into the Marana Critical Groundwater
Area to lands both within and allegedly without the critical water area.
The supreme court held that the City of Tucson could continue to pump water
to those lands that were within the water basin from which the municipality
was drawing, but the city was also ordered to discontinue pumping water to
those areas outside of the water basin. However, the court provided an
alternative to the City of Tucson, by which that city could supply the
outlying areas:
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Finally, petitioners request this Court to determine whether
Tucson by acquiring lands in cultivation in the Avra-Altar Valleys
may remove the ground water used upon those lands to other areas
contrary to the doctrine of reasonable use....
We think, however, that the problem is critical to munici-
palities in Arizona and so justified our consideration even though
not strictly embraced within the limits of the issues of the
original lawsuit....
...Hence, we hold that the decree in this case will be modified
if Tucson purchases or acquires the title to lands within the
Avra-Altar Valleys which are now cultivated and uses the water
which would have been used in cultivating such lands as a source
of supply for its municipal customers. Tucson may withdraw an
amount equal to the annual historical maximum use upon the lands
so acquired. (547)
On the basis of the Jarvis decision it becomes evident that the rule
of reasonable use can be bypassed if the need is great enough and the
public interest supports the modification. However, it is clear that a
plaintiff, seeking damages against a groundwater user, must show that his
groundwater source has been actually and presently injured, and that the
defendant utilized the water drawn from the ground outside the water basin
or on different land than that from which it was originally taken. In
respect to the impact of the Jarvis decision:
That a water basin's aquifer is being mined, and that a critical
groundwater area has been declared within the basin are 'facts
and circumstances' made 'pertinent to the issue' of damage....
That percolating water is being transported out of the geographi-
cal confines of the water basin is a fact made pertinent to the
issue of reasonableness.... These facts are to be weighed with
other facts and circumstances such as quantity, use, contiguity
of land ownership, and distance transported. (548)
Private ownership of percolating groundwater poses some difficulties'
when the use of such water causes pollution, either of the percolating
water or another water source. It is clear that if a landowner taps into
an underground channel, which is a water type subject to appropriation, and
utilizes the water so as to pollute the source, he is liable for the injury
caused thereby to other appropriators of the underground stream. However,
it is not clear whether or not a user of percolating water will be liable
for polluting that water and affecting others' use.
The general rule throughout those states recognizing some variation of
private ownership of percolating water is that a defendant will be liable
for an intentional interference and pollution of a plaintiff's use of
percolating water (549). If the pollution is not intentional the defendant
is still liable for injury resulting from his activity based on trespass
onto the plaintiff's land, regardless of the water rights law controlling
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in the particular jurisdiction.
In Arizona, which follows the reasonable use variation of the rule of
private ownership of percolating waters, it is unclear what legal ramifica-
tions stem from an unintentional pollution of these groundwaters. The rea-
sonable use limitation requires only that the water be put to a beneficial
use in relation to the land; there is no requirement that overlying land-
owners must share percolating waters.
If the Under8r°und water that is polluted is an underground stream,
then there will be liability for the damages resulting to other appropriators
who are tapping that stream and can prove that they have been injured by
the pollution. If it is percolating water that is polluted, then a cause
01 action may lie in trespass, although Arizona's general use of "reasonable
use analysis in this area would probably limit any possible relief to
money damages only. Finally, although there is no law specifically in
point in Arizona, pollution of percolating waters in a critical groundwater
area will not only be actionable, but may be more likely to produce in-
junctive relief, since the designation itself connotes a serious water
problem that could not be cured by merely awarding money damages to injured
persons.
Implications for Land Application Systems—
Arizona is one of a minority of Western States that does not apply its
appropriation doctrine to all underground waters. Since Arizona distin-
guishes between percolating waters, which are not subject to appropriation,
and water in underground streams, which are appropriable, the legal implica-
tions will vary with the type of groundwater. Issues involving underground
streams will be resolved in a manner comparable to their resolution under
the natural watercourse legal structure in Arizona. Issues involving
percolating waters, on the other hand, will be resolved in a similar manner
as such issues are resolved in riparian states. Arizona groundwater law
does not distinguish between the different types of land application systems.
In connection with any of the major types of land application systems, the
precautions outlined in Volume I of this report to minimize possible liabil-
ity for interference with groundwater in appropriation states can be taken
in Arizona.
Summary
The Arizona State Department of Health Services has regulations govern-
ing the use of reclaimed wastes. Basically, these regulations cover only
the level of treatment to be applied to the wastes before application, and
do not otherwise limit the uses to which effluent may be put, the practices
of the typical land application system, or the locations in-which land
application systems may be operated. The regulations prohibit the direct
reuse of wastes originally containing human or animal wastes and require
differing levels of treatment, depending on the use made of the wastes
(536).
If the proposed use is: (1) irrigation of fibrous or forage crops not
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intended for human consumption, (2) irrigation of orchard crops by methods
that do not result in direct application of water to fruit or foliage, or
(3) watering of farm animals other than producing dairy animals, then the
wastes must receive a minimum of secondary treatment (550). If, on the
other hand, the purpose is: (1) irrigation of food crops subject to later
processing that will destroy pathogenic organisms, (2) irrigation of golf
courses or cemeteries, (3) watering of .producing dairy animals, or (4) to
provide water supply for impoundments used for only secondary contact
recreation, then secondary treatment plus disinfection is required (551).
Finally, if the purpose is to: (1) provide water supply for impoundments
used for primary contact recreation, (2) irrigate school grounds, play-
grounds, lawns or parks, or (3) irrigate food crops that can be consumed
raw, then secondary treatment followed by tertiary treatment and disin-
fection is required (552).
In no case does compliance with these regulations eliminate the need
to comply with Arizona water quality standards or the general water law of
Arizona. The existence of these regulations, however, is indicative of a
favorable orientation toward the possibilities of land application of
waste. Unlike a state where the lack of any regulation requires one to
guess what the administrative attitude toward land application would be, in
Arizona that attitude is clearly favorable. Moreover, once the prescribed
treatment and disinfection standards are met, Arizona does not specifically
regulate many of the facets of a land application system, such as location
of spray sites, buffer zones, frequency of spraying, and so forth. In-
stead, it is the result which is important—for example, prevention of
harmful fecal coliform density.
When this favorable administrative orientation is coupled with a
reasonably favorable basic water law, it is clear that the operation of
land application systems will be feasible in Arizona and should be en-
couraged.
CALIFORNIA
Law of Natural Watercourses
Description—
California, unlike most other Western States, has developed an ex-
tensive statutory and administrative framework directed at the establishment
and operation of land application sites for waste disposal. Despite these
regulations, however, the general law of water and its uses must still be
discussed.
Unlike Colorado, California is one of nine Western States that acknowl-
edges a hybrid riparian-appropriation system of water rights, generally
referred to as the "California Doctrine." The development of such a dual
system in California has a long history. California originally recognized
only riparian rights as part of the common law adopted by the state in 1850.
Even after recognizing the doctrine of appropriation, riparian rights were
still considered to be the superior interest. However, in 1928 a
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constitutional amendment was adopted which restricted both riparian in-
terests and appropriation rights to reasonable beneficial use under rea-
sonable methods of diversion and use (553). This doctrine of "reasonable
beneficial use" is applied in the settlement of all claims based on con-
flicts in the use and diversion of water in California (554).
California water law recognizes water as a part of the land, and there-
fore, as real property (555). The right, however, is usufructuary—that is,
a right to use water instead of dominion over water. Consequently, rights
to water are protected only as to use and not to claimed ownership of the
water in question (556).
The California definition of a "natural watercourse" follows the
"majority of other Western States in that the only elements necessary in
order for a particular body of water to qualify as a watercourse are that
it have a definite waterflow, bed, banks, and channel (557). The strength
of the water flow may affect the value of the rights therein, but intermit-
tent flow, frequent changes in waterflow or length of time of existence
do not significantly affect rights to water use (558). Waters which over-
flow the stream banks because of flood or other sources, but which do not
separate from the stream, are still considered part of the watercourse.
It appears that in order for stream waters that were formerly part of a
watercourse to qualify as flood waters, and no longer be part of a particular
stream, they must become permanently separated from that stream (559).
Although California follows a hybrid, riparian-appropriation system
of water rights, it must be emphasized that riparian rights no longer dom-
inate California water law. Although the riparian interest is still con-
sidered a valuable property right, the influence of the appropriation
doctrine and the extremes in the types of water environments found in
California have effectively limited its scope.
California riparians have a right to flow of the water, but only in
respect to a reasonable beneficial use thereof (560). Therefore, riparians
are restricted by reasonable uses made of the water by upstream riparians.
As was mentioned earlier, the "reasonable beneficial use" doctrine circum-
scribes a riparian's right to waterflow without diminution. Every riparian
landowner has an equal right in the water as it passes his land, and con-
sequently a riparian's interest in water contiguous to his land is common
and reciprocal with all other riparians on the watercourse. Unlike the
holder of an appropriative right, the riparian has no right in a specific
quantity or "duty" of water. It is clear, then, that the riparian right
cannot be analyzed in isolation from other interests in the same stream.
The strongest single factor limiting the riparian right is the test of
reasonableness of the use. The test of reasonableness is not precise, but
dependent upon a case by case determination based on a multiplicity of
environmental, topographical, and economic factors (561).
Certain riparian purposes are recognized as prima facie useful and
beneficial, including irrigation and domestic uses. Beyond those uses, the
categorization is very imprecise. In general, the rule of reasonable use
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includes ordinary, economical, and beneficial uses (562). However, if a
use has been determined as unreasonable, there is no priority in that use
(563).
As to the relation between riparians on the same stream, the guide-
lines established by the California courts is that an upper riparian first
using the water cannot, in general, use the flow to damage a lower riparian.
If, however, the upper riparian's use has been found to be reasonable and
beneficial, and the quantity he needs adversely affects the lower riparians'
needs, the lower riparians may be required to tap the subsurface rather
than the surface flow of the stream to satisfy their water requirement.
In some circumstances, particularly in instances where either a very small
stream is involved or there is only one riparian on the body of water, a
riparian may obtain the right to the full flow of the water (564). These
situations, however, arise very rarely.
A lower riparian has a cause of action for nuisance against an upper
riparian who pollutes the water source so as to make it useless for or-
dinary domestic or irrigation purposes (554). Remedies available to lower
riparians include money damages, an injunction, or a combination of both.
Riparian owners cannot establish priority in water use by becoming
the first water user on a particular stream. This is because the riparian
right is not based on actual use of the water but on the land's proximity
to a water source. Thus, it has been held in California that even pros-
pective riparian interests are protected (565). Despite this holding, how-
ever, certain riparian interest may enjoy a preference over others. During
times of water scarcity in certain regions of California, a system of ap-
portioning water among riparians comes into play. The factors determining
the quantity of water to be apportioned to each use include the number of
users on the stream, the volume of available water, the use and possible
uses of each tract of land involved, the economic impact on certain uses,
and the nature of the particular uses involved (566).
In addition to the foregoing principles, California has a system of
priorities established for competing riparian uses which are not based on
the appropriative right's "first in time, first in right" rule, but are
based on the nature of the particular use. The first level of preference
is that all "natural" uses, such as domestic uses, have preference over
all "artificial" uses. It has been held by the California courts that the
quantity of water that may be used for domestic purposes is unlimited even
to the point that a lower riparian may be completely denied water, if the
lower riparian's use is not also domestic (.567) .
Next in the preferential hierarchy is the use of water for irrigation
(568). Such use of the water is limited only by the concept of reasonable-
ness and the rights of other riparians utilizing the water in the same
manner, or by others using the water for domestic purposes. Other artificial
uses of water include storage, generation of electrical power, and recreation
(569). These uses are limited in the quantity of water that can be drawn
for use; that is, only a reasonable share of the water flow can be put to
any particular artificial use.
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The theory of riparian rights has been modified to suit conditions in
California. The major modification of the theory was made by the con-
stitutional amendment of 1928 (570). This amendment states the California
policy of maximizing the beneficial use applicable between riparians and
appropriators. The effect is to subject all water in excess of reasonable,
beneficial riparian use to appropriation. The California Supreme Court
acknowledged this change in 1933 by refusing to enjoin the appropriation
of water which was not being put to reasonable beneficial use by the riparian
owner (571).
Unlike the riparian right, the appropriative right is dependent on
diversion and use of water and not on whether or not a particular piece of
land is contiguous to a flow of water. The doctrine of "first in time,
first in right" is limited to the actual use of water and does not include,
as in the case of the riparian right, the potential or prospective use.
In this regard, the appropriative right is limited to a specific quantity
of water put to a beneficial use.
Included in the idea of utilizing a specific quantity of water is the
appropriator's right to receive that quantity in a reasonable state of
purity. This rule effectively limits a lower appropriator's opportunity
to hold an upper appropriator who is polluting the stream liable for
damages. Courts have ruled that some deterioration of water quality is
inevitable when that water is put to reasonable beneficial uses and, there-
fore, if the pollution is within reasonable limits it is not actionable
(572).
Although the place of use of the water diverted is part of the ap-
propriative right, it is not determinative of the extent and nature of the
right itself. Consequently, appropriative rights may be had which allow
a water user to divert outside the watershed of the stream. Obviously,
diversions which remove water from the watershed are limited by prior
rights established on the same stream.
Appropriative rights, like riparian rights, are governed by the con-
cept of reasonable and beneficial use (573). Uses which have been recog-
nized as beneficial and reasonable for purposes of appropriation include
irrigation for agricultural purposes (574), mining (575), domestic use
(576), and power, municipal, industrial, and recreational uses (577).
Moreover, the types of water available for appropriation correspond to the
types available to the riparian interest, including water flowing in a
stream or any natural channel, lake water, flood waters, underground waters
in definite channels, springs, and waste and seepage waters.
Although the appropriative right is not dependent upon ownership of
land contiguous to water, ownership of the land is relevant when deter-
mining the reasonableness of the use for which the water is being diverted
(578). But, an appropriator can acquire rights to water even though he
does not own the land upon which the water will be put to use (579).
The acquisition of an appropriative right is contingent upon compliance
with specified statutory procedures. The steps outlined in the California
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Water Code (580) are the exclusive way of obtaining and perfecting new ap-
propriative rights (581). The California Statutes and administrative regu-
lations state that in all steps involved with obtaining an appropriative
right, the prospective appropriator must proceed with "diligence" (582).
The concept of "diligence" is a question for the trier of fact, which in-
cludes considering the surrounding circumstances involved in the particular
claim (583).
The California State Water Resources Control Board makes all determina-
tions concerning the issuance of permits for diversion works (584). The
board conducts hearings and investigations to determine whether or not a
permit should be issued, and also serves as an overseer to prevent un-
authorized diversions (585). All decisions of the board are subject to
judicial review (586).
Water can be appropriated by anyone, including persons, corporations,
or business trusts. A riparian may even appropriate or increase his present
water use through appropriation (587). While a prospective appropriator
has an application pending for appropriation, he can divert water for the
use for which he is seeking the permit (588). The right, however, is pro-
tected only for a reasonable time—so* long as the appropriator is proceeding,
with diligence on the construction of his diversion works (589).
As with other jurisdictions accepting the appropriation doctrine either
entirely or in combination with the riparian doctrine, California applies
certain basic appropriation principles.
The right to appropriate water entitles the individual to appropriate
a specific quantity, and only that quantity actually used. The specific
quantity of water given to the appropriator by permit is given for only a
specific time; that is, the appropriative right only attaches at the time
the water is used and as long as it is used. In addition, an appropriator
is entitled to the certain flow of water in a reasonable state of purity
(590). The concept of reasonableness here allows for a certain degree of
water quality deterioration without making the cause of that deterioration
actionable under the law.
Appropriated water can be diverted to outside the watershed. This
right, of course, is subject to the limitation that such a: diversion does
not affect superior rights in the same water (591).
Appropriative water rights cannot vest unless the specific quantity of
water is put to a beneficial use. California has placed the highest pref-
erence on domestic, uses (592), with other specifically recognized bene-
ficial appropriations including irrigation (593), milling, mining, and
stock watering (594).
California law allows for changes in both the type and place of a
beneficial use without disturbing the priority of an appropriative right.
This, of course, is subject to the limitation that no increase in water
quantity is required. Also, if the new use adversely affects water quality,
the use may be labeled nonbeneficial and, consequently, not allowed.
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It is clear from the foregoing analysis of both the riparian and ap-
at there
propriation doctrines as interpreted by the California court s ,
are not major variations from typical riparian and fP^f *°»J?"e™8'
The important question, then, is how do these do ctrlnes jork ..^her in
the California law? Both riparian and appropriate rights •••«*£
simultaneously, and in many places they are in conflict. Jhe confl ict s be
tween the doctrines and their adjustment have oc'uPfe* * J"8* ^f °f
attention of the courts throughout the history of the State (595).
use
^^
outlined in the California law, while riparians' rights, in contrast, vest
in the land itself. However, this •^*£\f
is not as extensive as it first appears. The J92
amendment (570) which promoted the concept of fav g
now controls and circumscribes both riparian «VS rf c^ed
Thus, what is a beneficial use at one time may, because of changed
ditions, become a waste of water at a later time (597).
In addition, a riparian, unlike an appropr *™'m
proportional share in the waterflow of a Particular stream.
d 8aloln8
out diminution by the appropriator, and his rights are
by the doctrine of reasonable ues.
in a dual-system state, such as California .
contains essentially the same meaning as it does i PP „ £ ferenceu with
tions, although there is more of atenden cy to contuse P fc the
,
"priority." A use listed as the highest t use" of water
meaning attached to "P«*C«^V d rigaon, the next highest use.
is for domestic purposes, followed by ^rigau , granting
In respect to appropriation right., th ** P^^Hiparian rights a similar
of licenses to appropriate water. In tne cas F distinctions
preference relationship between types of uses is imp
between "natural" and "artificial1 uses.
loMnnshio of appropriation rights and riparian
To summarize the relationship ot app P ^^ ^ although
rights in natural watercourses, it can oe ^ California leans
California recognizes the riparian interest in the J- claims ^ ^
more to ^e prior appropriation doctrine ^^ ±> determined Qn &
same waterflow, the fjnal J*^" "he major concern of a land application
case by case basis.. Conf ^f^' opri^tlon rights by complying with the
system will be the securing of aPP^Pr^^lng8to California law all water
requisite statutory procedures, since accoruj.uB
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belongs to the public and is subject to appropriation.
Implications for Land Application Systems—
Unlike numerous other states that have not classified land application
systems, California has classified such systems according to geologic and
hydrologic features of the disposal area and the capability for protection
of surface and ground water quality (599). Despite the categorization of
land application sites and the types of waste disposed of therein, certain
basic effects will be experienced in many cases.
1. The system, by collecting wastes which may previously have been
discharged 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. Basi-
cally, the system's institution will improve the quality of the
water but decrease the flow beneath the previous point of dis-
charge.
2. After the wastes are collected, treated, and applied for irriga-
tion purposes, trace contaminants may remain which then drain
into a natural watercourse, either the original watercourse from
which the wastes were diverted or a different body of water.
In the first instance, it is clear that the law of prior appropriation
would be applied. In other words, any diversion that is involved in the
operation of waste site would have to meet the statutory requirements. The
diversion itself will be subject to many limitations. First is the require-
ment of a reasonable and beneficial use. This will be easily met since
California recognizes irrigation as reasonable per se. However, what may
interfere with the securing of a permit to divert water from a watercourse
is the "duty" of water needed to successfully implement the on-land applica-
tion system. If the system diverts water from a stream which has only
artificial uses diverting water TErom its flow, then the irrigation use will
have preference and will be given its full duty of water. Notwithstanding
the preferential character of irrigation, however, any depletion in. the
duty of other appropriations on the stream will have to be compensated.
To summarize, with regard to the possible effects of an application system
on a watercourse, the following implications apply to California law.
1. Since the majority of natural watercourses in the state already
have existing appropriative activity, 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, as "irrigation,"
will have preference over all other uses except domestic uses, the
concept of priority will impose 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. However, because
of preferred status of irrigation, even if the land application
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diversion is junior to another use and if that pre-existing use has
a lower preference, the land application system cannot be deprived
of its full requirements of water without compensation.
The second way in which the law of natural watercourses may intersect
with land application systems occurs if, after application, trace contami-
nants remain on the land and are eventually washed into a natural water-
course. If, in a particular situation, some contaminants drain into a
natural watercourse, then the following consequences may ensue. It is clear
that there can be liability in California for the pollution of the waters
of a natural watercourse. A riparian has a basic right to unpolluted water,
although another riparian may impair the quality of the watercourse to some
degree if such action is not malicious or unnecessary. The basic cause of
action is for nuisance, and the injured riparian may receive money damages
or an injunction.
In the case of appropriative rights, California law provides that the
appropriator has a right to a reasonable state of purity of the water reach-
ing his diversion works. As in the case of the riparian right, some de-
terioration of the water is allowed, provided it is within reasonable limits.
Consequently, although there is allowable pollution, it is evident that even
a reasonable and beneficial use can be held liable for pollution of the
watercourse.
There is no way the system's operators can totally eliminate the pos-
sibility of liability for trace pollution of a natural watercourse. Even
if all necessary operation permits under California law are secured, these
permits do not shield the operator from possible liability. But there are
several steps that can be taken to further minimize the possible risk. In
addition to taking the precautions outlined in Volume I of this report per-
taining to natural watercourses in appropriation states, strict adherence
to the California regulations governing the creation and operation of waste
disposal sites will provide the requisite foundation of reasonableness in
any possible lawsuit.
Law of Surface Waters
Description--
California does not possess extensive statutory or case law in regard
to diffused surface waters and the rights therein. The right of a land-
owner to use such water has been of less concern to the courts than the
tight to channel and drain the water onto another's land.
Surface waters are the uncollected flow from falling rain or melting
snow diffused over the surface of the land and are distinguishable from
natural watercourses such as rivers or lakes. They continue to be diffused
surface waters until they flow into a natural watercourse or percolate
through the ground.
Regardless of the method used to apply wastewater to the land, poten-
tial liability could arise from increased surface water runoff onto adjacent
land; from the deposit of contaminants onto adjacent lands; from the
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impoundment of surface water on the application site; or from obstructing the
flow of surface water from adjacent land onto the application site.
Until 1966, California traditionally followed the civil law rule which
recognized a servitude of natural drainage between adjoining lands and im-
posed liability for interference with the drainage (600). The rule declared
that the landowner had a duty to receive surface waters from above his land
and had a corresponding right to have the water flow from his property to
the land below (601). The 1966 decision of Keys V. Romley (602), however,
added to the civil law rule a doctrine of reasonable use. Under the modified
rule, the landowner apparently is not liable for damages caused by his al-
teration of surface water drainage if he uses reasonable care and prudence
in so doing (603). This modified rule of reasonable use thus would be the
standard by which the following potential areas of liability would be judged.
By saturating the soil with wastewater, a land application system poten-
tially could cause excessive surface water runoff onto adjacent land. Sec-
ondly, this runoff could carry contaminants onto the neighboring property.
Both situations could subject the operator of an application site to-liabil-
ity.
With respect to the creation of excessive surface water runoff, it is
well settled that one who causes surface waters to flow onto lower lands
with increased volume or velocity will be liable to the lower landowner for
interference with surface water drainage rights (604). An exception to this
rule is a change in drainage caused by tilling fields in the natural manner;
however, an application system would not come within this exception (605).
Alteration of the natural drainage pattern caused by a land application
system and the resulting increased surface water runoff could possibly be
unreasonable under both the traditional civil law rule and under the Keys
(602) standard unless reasonable steps are taken to create ditches and
drainways in accordance with accepted irrigation practice. Although in-
creased surface water drainage resulting from conventional agricultural
irrigation.is expected and tolerated within reasonable limits, wastewater
irrigation may undergo stricter scrutiny by the courts. Whereas conventional
irrigation is considered a reasonable beneficial use under the California
Water Code, wastewater irrigation enjoys no such favored status. Thus, the
courts may find that the operator of a wastewatef application site must take
reasonable precautions to avoid causing injury to adjacent property due to
an altered drainage pattern. It should be noted that,since wastewater
irrigation is subject to control by the regional water quality boards (606),
the operator of an application site could be ordered to abate any unreason-
able condition of drainage that causes injury to his neighbor.
Secondly, the discharge of water and the deposit of contaminants upon
adjacent land may be actionable under theories of trespass (607), nuisance
(608), inverse condemnation (609), and possibly for pollution of surface
water. With regard to an action for trespass it must be noted that when
contaminants are deposited on the land of another, water rights probably
are irrelevant since the plaintiff is being deprived of the use of his land,
not the use of his water (610). Liability for nuisance may rest upon an
intentional invasion of the plaintiff's interests, a negligent invasion, or
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conduct which is ultrahazardous and thus falls within the principle of strict
liability. In order to recover for a private nuisance, the injured party
must establish both substantial and unreasonable interference with the in-
terest involved and that his damages are different in kind or degree from
those of the general public (611). In on-land application systems, the in-
jured party probably would have to establish that the wastewater contaminants
were harmful to his crops or rendered his land unfit for use. The mere de-
posit of contaminants, without more, probably would not be actionable.
Where a public entity discharges large quantities of water on a landowner
without his consent, the principles of inverse condemnation come into play
and the landowner has a cause of action for damages independent of the taking
of the property (612).
In order to avoid potential liability to adjacent landowers for un-
checked runoff of surface waters, it would be advisable to use interceptor
ditches to collect both contaminated surface water and excess wastewater
and either recycle the water into the land application system or discharge
the water into a natural watercourse. These alternatives may create several
additional areas of concern. First, the impoundment of diffused surface
water on the application site seems to be lawful as long as natural water-
courses likewise are not detained. Diffused surface water generally may be
captured by the owner of the -land over which it moves, and when captured,
becomes the property of the landowner (613). California courts have upheld
the impoundment of surface water even though such impoundment has deprived
the lower landowners the customary flow of surface water (614). Thus, a
system of intercepting and recycling excess waters on the application site
probably would be lawful. A second concern will be raised by the discharge
of this excess water into a natural watercourse. Such a discharge would
require a permit under the National Pollution Discharge Elimination System
(NPDES) (279). A final concern will be raised by the attempt to repel
surface water naturally flowing onto the application site. ; Conceivably,
obstruction of surface water flowing onto the site from upper lands may be
necessary for the proper functioning of the wastewater system. If the
operator of the application site is a private person, he has no right to
obstruct the flow of surface water that naturally drains across his property
from adjoining lands (615). A government operator, however, apparently
may validly exercise the police power to obstruct the flow of diffused sur-
face water onto the site without making compensation for any resulting
damage (616).
Implications for Land Application Systems—
The California law pertaining to diffused surface waters deals almost
exclusively with the issue of an upper landowner creating a discharge that
did not previously exist, altering an existing waterflow so as to adversely
affect the lower landowner, or the lower landowner affecting the natural
surface water flow so that the upper landowner is damaged thereby. One
thing is clear from the direction these cases appear to be taking and that is
California courts will likely apply the rule of "reasonable use" to questions
concerning altered flow and pollution. Consequently, pollution for no
valid purpose might be unlawful, but trace pollution in connection with an
otherwise reasonable use might be lawful.
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According to California law, land application sites are probably a
reasonable and beneficial use of water. It is therefore unlikely that such
a site would be prevented from operating because of trace pollution of sur-
face waters. In the case of trace pollutants escaping the application site
with surface waters, the system operators might have to pay for damages
caused to adjoining landowners, but the possibility of such liability is
even less likely in the surface water category than it is in the natural
watercourse category. The reason for this is because the potential claimants
for harm to surface waters are almost always limited to the immediately ad-
joining landowners, rather than including all downstream owners as in the
natural watercourse category, and since less gainful use is generally made
of surface waters, 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.
Although an upper property owner may have a vested interest in main-
taining the natural flow of diffused surface waters, it is unclear in
California whether a lower landowner has the same vested interest in main-
taining the flow to his land. However, since it is clear that one cannot
establish riparian rights in diffuse surface waters, nor, for that matter,
does it appear that one can appropriate such waters, it is unlikely that a
land application system would be liable for interference with the flow of
diffused surface waters. The upper landowner—in this case, the land ap-
plication system—can with probable impunity collect all surface water on
its property and thereby solve its problems of possible trace runoff. The
recommendations contained in Volume I of this report regarding surface
waters in appropriation states would apply to land application systems as
they relate to surface waters in California.
Law of Groundwater
Description—
California water law recognizes three basic types of groundwater: (D
the underflow of a surface stream; (2) a definite underground stream; and
(3) percolating waters. Underground waters flowing in definite channels
and the underflow of surface streams are treated the same under the Cali-
fornia law—both are treated as natural watercourses. Percolating waters,
however, receive some unique treatment.
The underflow of a surface stream is that water permeating the soil,
sand, and gravel that is the bed of that surface stream. It is essential*
according to California precedent, that the surface and subsurface waters
of a stream be in contact with each other, and that both flows have the
same general direction. Therefore, if the groundwater in question does not
satisfy the aforementioned criteria, it cannot be considered the subsurface
flow of a surface stream (617). The law is "...well established that th,e
underground and surface portions of the stream constitute one common supply"
(618). Consequently, the law governing watercourses in general also applies
to the subterranean part of the stream, and moreover, the rights that are
recognized as attaching to the surface flow, also attach to the underflow.
Thus, one can become a legal appropriator of subsurface flow, provided that
the statutory permit requirements are satisfied. In regard to the riparian
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right and its relationship to the use of the underflow of a stream, it is
also the law in California that the riparian right attaches equally to the
underflow and surface flow of a stream.
The definite underground watercourse, like the underflow of a surface
stream, is governed by the laws pertaining to water use on natural water-
courses. The terms "defined" and "known," describing a particular subter-
ranean watercourse, refer to the same characteristics necessary in order for
a surface waterflow to be considered a natural watercourse. That is, there
must be a channel with definite boundary (defined) and there must be knowl-
edge from "reasonable inference" of the course the particular underground
stream takes. All underground watercourses are subject to both appropriative
and riparian rights.
California law presumes that groundwater is percolating and, therefore,
not a part of a stream nor part of an underground channel (619). California
statutory law does not include percolating water within Its provisions for
the appropriation of water or the adjudication of rights in water; conse-
quently, percolating waters are not subject to these statutory provisions.
Included in the term "percolating water" are subterranean basins filled
with loosely packed water-bearing materials—waters which have left a sur-
face stream and have lost their character as part of the flow and are not
part*of an underground channel, and, of course, waters which are broadly
diffused through the soil strata.
Rights in percolating water are real property rights, that is, the right
to take water from the ground underneath one's land is based on ownership of
the land and is appurtenant thereto (620). However, this "overlying right"
is subject to the "correlative rights" doctrine, which requires that the
respective overlying owners put the water to a reasonable beneficial use,
and provides that no overlying owner has a greater right in the underground
water than any other landowner using the same water. If there should be an
Insufficient amount of water for all, then the water may be apportioned
among the users. Moreover, until actually taken into possession, percolating
waters are not owned by each private owner of overlying land, but by all
owners in common.
The correlative right doctrine does not allow for a priority relation-
ship among users. Like the riparian right, the correlative right does not
depend on use. Therefore, one cannot gain priority by first using the per-
colating water (621).
Despite the fact, however, that one cannot establish priority in the
use of percolating waters, it is clear that certain uses have preference
over others. For example, the rights of an overlying landowner to use per-
colating water on his own land are superior to a use on land some distance
from the underground water source (622). This limitation does not extend
to surplus percolating water; that is, the overlying landowner may take what
he needs before any user.upon distant lands will be allowed to divert a
quantity of the percolating water, but then the appropriator for distant
use may divert surplus percolating water.
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The constitutional amendment of 1928, making the principles of reason-
able beneficial use the controlling factor in the law of water use in Cali-
fornia, also applies to the use of percolating water (570). This principle
prohibits an overlying landowner from wasting the water he draws from the
ground. In other words, the overlying landowner has a right only to that
quantity of water actually needed.
Under California's correlative rights doctrine, each owner of land
overlying a common groundwater supply has a right to the reasonable bene-
ficial use of the water. Since the discharge of wastes is not a recognized,
protected beneficial use, no overlying landowner has the right to contaminate
groundwater supplies to the detriment of a neighboring user of water. Ac-
cordingly, if an application system unreasonably interferes with a beneficial
right to use groundwater, such pollution could give rise to private actions
for interference with water rights (whether appropriative or correlative)
and public statutory actions to abate the condition.
A second groundwater problem may be caused by wastewater that seeps into
the underlying water supply and elevates the water table. Such a condition
could interfere with the surface water drainage of adjacent lands. Several
California court decisions have imposed nuisance liability on defendants who
have raised the water table and caused drainage problems on neighboring land.
In Shields V. Wondriea (623), for example, the court held that an owner of
land may not conduct even non-negligent activities on his property when they
create a nuisance as to his neighbor. Accordingly, the operator of an ap-
plication site could be enjoined from maintaining the nuisance caused by
the elevated water table or could be liable for damages.
Implications for Land Application Systems—
As was previously mentioned, California has established a classification
system for on-land application sites (599). This classification system also
includes classifying the various types of wastes that are allowed to be
dumped on a particular land application site (624). These regulations will
be discussed later. Among other things, the California Administrative Code
establishes certain requirements pertaining to soil permeability, slope
of the land, proximity to groundwater and tributary groundwater sources,.
depth to groundwater, rate of groundwater movement, the types of soil
materials through which the groundwater travels and the annual precipitation
in the area of the land application site (599). These factors must, of
course, be considered and complied with before proceeding with the con-
struction of any on-land application site.
Groundwater in definite underground streams or part of the subsurface
flow of a natural watercourse, is governed by the same principles of law as
is the natural watercourse. Therefore, to minimize the possibility of lia-
bility for adversely affecting other groundwater users on definite under-
ground streams or subsurface flow, the same steps should be taken as would
be taken for a surface stream.
California as a "correlative rights" state treats percolating waters
very similar to the way it is treated in the Eastern States applying the
reasonable use theory. In particular, California presumes that underground
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waters are percolating rather than tributary to a watercourse, which is
consistent with typical eastern law and not with the law as applied by most
other Western States. Since California possesses an extensive regulatory
scheme aimed at controlling land application sites and waste disposal there-
on, it is necessary only to repeat more general precautions that should be
taken when dealing with underground water. A land application site may
raise the possibility of polluting water sources in the vicinity surrounding
the.site itself, both above and below ground. To minimize the possibility
of leakage into underground waters, causing trace contaminants to infiltrate
these water sources and resulting in damage liability for the system, the
precautions outlined in Volume I of this report pertaining to groundwaters
for appropriation states should be taken into consideration and the Cali-
fornia regulations followed. In particular, it should be noted that to
avoid liability for raising the water table, the operator of the system
should carefully monitor the percolation rate of the wastewater and should
not use a groundwater recharging system, such as the rapid infiltration
method, when the water table is customarily high. This is particularly
important in California because of cases specifically holding that uses
which raise the water table create liability on a nuisance theory. Moni-
toring is required by the California regulations pertaining to on-land
application sites.
Summary
Land application of wastewaters from community and industrial sources
has been practiced successfully in California for many years, and by 1972,
248 municipal facilities were using land treatment as part of the waste
treatment process (625). Any contemplated project initially must comply
with the waste discharge requirements of the California Water Code (626) and
the administrative regulations that establish procedures for the land ap-
plication of wastewater (627). Generally, the Water Code requires that all
discharges of wastes, which includes sewage and any and all other waste
substances (628), other than into community sewer systems must file a report
(629) with the Regional Water Quality Control Board, which has the authority
to establish requirements for the proposed discharge of wastes (630).
California has several different sets of administrative regulations
which apply, directly or indirectly, to land application systems. The most
important is that of the State Water Resources Control Board, Waste
Disposal to Land," (627) which are more directly aimed at land disposal than
at land application* also cover land application systems, at least insofar
as they set certain standards for protection of underlying groundwater
supplies. These regulations classify disposal sites into five categories
and specify the types of wastes which may be discharged in each classifica-
tion. For example, in Class I disposal sites, there must be no possibility
of discharge of pollutant substances to usable waters. Usable groundwater
may underlie the site only under extreme cases and where natural geological
conditions prevent movement of the wastes to the water and provide pro-
tection for the active life of the site. When these stringent conditions
are met, all specified waste groups may be received (631).
Class II-l disposal sites, by Way of contrast, may overlie or be
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adjacent to usable groundwater and artificial barriers may be used for both
vertical and lateral waste confinement. Protection from a 100-year frequency
flood must be provided. Under these condtions, Groups 2 and 3 wastes,
but not Group 1 wastes, may be accepted (632). Group 1 wastes are toxic
substances such as chemicals, acids, phenols or pesticides; Group 2 wastes
are chemical or biologically decomposable materials; and Group 3 wastes
are non-water soluble, nondecomposable inert solids (633).
Basically, California law is favorable to development of land applica-
tion systems, as is evidenced by the number of such systems already in
operation there. The regulations, although extensive and occasionally
overlapping, are by and large clear, concise and reasonable. The underlying
state water law is more favorable than that of any other Western State, as
well as several Eastern States.
COLORADO
Law of Natural Watercourses
Description—
The doctrine of prior appropriation controls the water law of Colorado.
When Colorado was admitted as a state in 1876, the constitutional committee,
reasoning that the semi-arid environment of the state precluded any con-
sideration of the riparian rights theory, codified this dictrine in the
state constitution (634). This total rejection of riparian principles
became known as the "Colorado Doctrine," and it is still the foundation of
the water law of eight Western States—Arizona, Colorado, Idaho, Montana,
Nevada, New Mexico, Utah, and Wyoming.
The definition of "natural watercourse" accepted by the Colorado
courts is summarized in In re German Ditoh & Reservoir Co.:
A water-course consists of bed, banks, and water. Yet the
water need not flow continually; there are many water-courses
which are sometimes dry. To maintain the right to a water-course,
it must be made to appear that the water usually flows in a cer-
tain direction, and by a regular channel, with banks and sides.
(635)
The supreme court also noted that the state legislature, in using the
words "tributary to a natural stream" in the state statutes, did not intend
that the tributaries themselves must be natural continuous running streams,
but that the tributaries included all sources of supply which go to make up
the natural stream. This definition of "natural watercourse," including
the very broad definition of tributaries, is common to most appropriation
states; like most such states, Colorado has made only minor variations
on the interpretation of the elements necessary to apply in finding a
particular body of water a "natural watercourse."
Given this definition of a "natural watercourse," the first question
is whether downstream prior appropriators of a watercourse from which
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wastes are diverted for on-land application will have a cause of action
because of the diversion either of wastes or waters of the stream diverted
along with the wastes.
The central theme of the prior appropriation doctrine, in Colorado as
elsewhere, is "first in time, first in right" (636). In Colorado this
theme is only slightly modified, in that considerations of preference in
appropriations are also part of the statutory scheme. According to one
authority:
'Preference1 is a generic term, and a preferential right may
have one of a number of different effects. It may give persons
who use waters for some purposes a right to the water that is
superior to prior rights for other purposes, or it may give cer-
tain water users a better right than others using the water for
the same purposes. Some preferences permit a preferred user to
condemn and pay for non-preferred water rights; others withdraw
water from general appropriation and reserve it for future pre-.
ferred uses; still others amount to rules for choosing between
substantially simultaneous applications for permits to appropri-
ate the same water. In addition, policies governing the actions
of planning agencies may require that certain uses must be given
preference over others in the formulation of projects for the
development and use of water. (637)
Thus, priority refers to the chronological order of the acquisition of the
right. Preference relates to the- character or relative value of particular
uses (638).
It must also be noted that the Colorado appropriation doctrine applies
only to the waters of a watercourse, and not to any wastes previously added
thereto. Hence there can be no liability for diversion of wastes. Possible
liability for diversion of water, however, depends on the answer given to
two subissues framed as questions. What is the priority relationship of
the parties involved? Is a "preferred use" involved in the controversy?
Priority in appropriation of water under Colorado law is not subject to
permit requirements, in contrast to the situation that exists in a majority
of the appropriation doctrine states (639). No particular filing is re-
quired to perfect an appropriation. What is required, however, for a valid
appropriation is that the prospective appropriator make an actual diversion
and apply the water to a beneficial use (640). If the diversion and the
beneficial use of the water appropriated are accomplished, any subsequent
filing or recording of such activity relates back to the inception of the
appropriative activity. In the final analysis, the right to divert water
for a beneficial purpose can never be denied and in the case of appropria-
tion from a natural watercourse, there is no requirement for a permit.
It is clear from the Colorado law that, if an individual complainant
can establish that he has the prior right to appropriate water from the
stream in question, then whether or not he has a cause of action depends:
(1) on whether the junior appropriator is diverting a quantity of water
that diminishes the senior appropriator's legal "duty" (641); and (2) on
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whether any one of the parties has a better right as a result of diversion
for a preferred use. Ignoring considerations of preference for the moment,
Colorado law gives to a senior appropriates a cause of action for damages
against a junior appropriator on the same stream who diverts such a quantity
of water as to diminish the "duty" of the senior appropriator (642).
In the converse of the above situation, a junior appropriator may have
a cause of action against a senior diversion that deprives the junior water
user of his legally defined duty. Basically, the senior appropriator may
satisfy his quantity requirements, even to a junior appropriator's loss in
his legally authorized duty, but he may not appropriate water beyond his
duty without compensation. This is the logical conclusion of the doctrine
of "first in time, first in right."
The following statements summarize the possible priority relationships
and the likely results of a controversy resolved solely in terms of priority.
1. A senior appropriator has a cause of action (right to compensation)
for loss due to a junior appropriator's diversion of water from
the stream upon which both diversions occur, if such junior
appropriator diminishes the senior appropriator's lawful duty.
2. A senior appropriator will not have to compensate a subsequent
appropriator despite the fact that in order to fill the senior's
water quantity right, he lowers the stream flow sufficiently
enough to deprive the junior appropriator of his duty. However,
compensation will have to be made for an appropriation that goes
beyond the senior's duty and, results in a loss of quantity at
the diversion works of the junior water user.
3. Obviously, if the diversion of water from the stream does not in
any way affect the amount that is needed by existing appropriations
on that stream, then, of course, there has been no injury.
This summary involves only one aspect of the relationship among water
users on the same natural watercourse, the concept of priority. If the
concept of preference is also involved in a particular controversy, the
outcome may be altered so as to be inconsistent with the "first in time,
first in right" premise of the prior appropriation doctrine.
The Colorado Constitution establishes the following preference relation-
ship between particular uses:
[T]hose using the water for domestic purposes shall have the
preference over those claiming for any other purpose, and those
using the water for agricultural purposes shall have preference
over those using the same for manufacturing purposes. (643)
Thus, if a downstream appropriator is diverting water under a preferred
use, such as for domestic purposes, the competing diversion on the same
stream is for the purpose of irrigation, then any injury caused to the
domestic diversion as a result of the irrigation use must be compensated,
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regardless of the priority relationship between the parties involved (644).
Furthermore, if the irrigation diversion has preference over the downstream
appropriator (such as, irrigation vs. manufacturing use) and the downstream
appropriator has priority, the irrigator, as the junior appropriator, would
still have to compensate the senior appropriator for loss in the quantity
of water the senior is authorized to draw from the stream. However, if the
irrigator has both preference and priority over the downstream manufacturer,
he need not compensate the junior appropriator unless by the diversion of
the water he has exceeded his authorized quantity and by so doing cuts into
and limits the opportunity of the junior appropriator to satisfy his needs.
A second question that must be considered in relation to natural
watercourses is whether, if trace contaminants remaining after on-land
application drain into a watercourse, a downstream prior appropriator of
this watercourse would have a cause of action. The Colorado law on this
question is similar to the law stated in riparian theory jurisdictions, in
that the lower riparian owners have a right to receive water from the
stream in its natural condition of purity, subject perhaps to reasonable
use by the upper riparian owners. The Court of Appeals of Colorado, in the
case of Suffolk Gold Mining & Milling Co. v. San Miguel Consolidated Mining
& Milling Co. (645), stated that:
...we are quite of the opinion that the title and rights of the
prior appropriating company were not absolute, but conditional,
and they were obligated to so use the water that subsequent
locators might, like lower riparian owners, receive the balance
of the stream unpolluted, and fit for the uses to which they
might desire to put it. This, of course, is subject to the
condition that the circumstances and situation of the use and
the application were such as to permit the preservation of the
remaining volume of the stream in its original condition. We
do not undertake to decide that, if the prior appropriator had
put the property to a use under circumstances which rendered
it impossible for him to enjoy it without some detriment to the
unappropriated water, he might not have the right to thus use
it. (646)
Under this statement of law, liability for pollution of a watercourse
in Colorado is slightly more likely than in a reasonable use riparian
jurisdiction, but less likely than in a natural flow riparian jurisdiction.
Pollution of public stream waters has also been found by the Colorado
courts to be equivalent to a taking of a property right, and therefore,
compensation must be paid to the injured party (647).
Thus, on the basis of the foregoing precedent, it is certain that the
landowner who allows contaminants from the on-land application of wastes to
flow into a nearby stream will be held legally responsible to compensate
those who have legally recognized rights to the waters of the stream and
who can prove that they have been damaged by the defendant's pollution.
Implications for Land Application Systems-
Colorado law makes no provision for a preferred method of land
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application of wastes. The major concern of the law governing water use is
that any proposed diversion must be made for a beneficial purpose. With
regard to the possible effect of an application system on the quantity of
flow of a watercourse, it is clear that the rules of "priority" and
"preference" will have the following implications.
1. Since the vast majority of natural watercourses in Colorado
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 limitations 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 duty of those uses. However, because of the
preference status of irrigation, even if the land application
diversion is junior to another use, if that pre-existing use has
a lower preference, the land application diversion cannot be
deprived of its full duty without being compensated therefor.
3. Any appropriation for waste purposes junior to any other appro-
priative right will be liable for compensation if the appropriator
requires a quantity of water which will adversely affect the
earlier right's duty.
4. Since the Colorado courts have found pollution of public streams
to be equivalent to the taking of a property right, it is clear
that any pollution caused by a waste system which causes harm to
a downstream appropriator must be compensated regardless of the
"priority" or "preference" relationship.
The second way in which the law of natural watercourses may intersect
with land application systems occurs if, after application, trace contami-
nants remaining on the land are eventually washed into a natural watercourse.
If, in a particular situation, some contaminants drain into a natural
watercourse, then the following consequences may ensue. Since an appro-
priator 's right to the use of the waters of a natural watercourse is not
absolute, there can be liability for pollution of those waters. This
liability also extends to stream waters to which the former stream is
tributary. Money damages and injunctive relief are available to the in-
jured parties, but it is unlikely that a "beneficial" use such as land
application of wastes (irrigation) will be enjoined. However, money damages
will be assessed for any proven injury. There is no way the system's
operators can totally eliminate the possibility of liability for trace
pollution of a natural watercourse, but the steps outlined in Volume I of
this report concerned with natural watercourses in appropriation states can
be taken to further minimize the possible risk.
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Law of Surface
Description—
In Colorado a distinction must be made between "diffused" surface
waters, which is water flowing across land surfaces caused by melting snow
and rain, and other surface waters, such as waste and seepage flows.
Diffused Surface Water—A statement of the Colorado law governing the
use and disposition of diffused surface waters is contained in the case of
Hankins v. Borland (648), wherein the Colorado Supreme Court remarked:
The modified civil law rule which has been adopted by Colorado
has been summarized as follows: Natural drainage conditions may be
altered by an upper proprietor provided the water is not sent down in
manner or quantity to do more harm than formerly. (649)
Accordingly, the law gives to the upper landowner a legal, as well as
a natural, easement for servitude over the property of the lower landowner
for drainage of diffused surface water flowing in its natural course and
manner. This easement allows the upper landowner to channel the flow of
surface water onto lower contiguous lands if such action is taken with due
care and does not extensively limit the lower landowner's use of his
property:
A natural water course may be used as a conduit or outlet
for the drainage of lands, at least where the augmented flow
will not tax the stream beyond its capacity and cause the
flooding of adjacent lands.... '...one who attempts to gather
water into a drain or to maintain a drain for his own conveni-
ence, is bound to take due care that no injury is done by it.'
(650)
Moreover, it has been held that where an upper landowner uses a natural
drainage pattern or stream as a conduit and that drainage pattern or stream
traverses a lower landowner's property, and the upper landowner exercises
due care and diligence so that no harm will result from the flow of dif-
fused surface water into the conduit, the fact that unusually heavy rain
fell and widened and deepened the watercourse will not subject the upper
landowner to liability for damage to the lower landowner's property (651).
Colorado water law contains two very important limitations pertaining
to the control and use of diffused surface waters by the landowner over
whose property such waters flow. The first limitation is the presumption
that all surface and groundwaters are tributary to some stream or stream
system:
The volume of these streams is made up of rains and snowfall
on the surface ... which finds its way to the streams running
through the watersheds in which it is found. (652)
Therefore, once such waters have been established as tributary to a
stream, they cannot be interrupted in their course and diverted from the
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stream; they belong to the people of the state under the Colorado Con-
stitution (653). This presumption, then, effectively narrows the definition
of diffused surface waters to include only those waters not tributary to
any stream, be it on the surface or under the ground.
Another and more obvious consequence of this presumption is the fact
that the burden of proof is placed on the person seeking a decision that a
particular flow of diffused surface water is not tributary to any stream
system (654). The standard of proof is met only by "clear and satisfactory
evidence (655).
The second major limitation on the use of diffused surface waters is
Colorado's Livestock Water Tank Act (656). This Act allows landowners to
impound diffused surface water for use in watering cattle and other live-
stock, but it recognizes that there are pre-existing appropriative rights
in watercourses to which such diffused surface waters may be tributary. If
such is the case, then the opportunity to impound diffused surface waters
tributary to a natural watercourse is limited by the existing vested ap-
propriative rights.
If the diffused surface waters are found not to be part of a stream's
system, the act establishes a hierarchy of priorities among those indi-
viduals seeking to use water for such tanks. This priority scheme is also
based on the principle of "first in time, first in right," but certain
prerequisites have to be satisfied as stipulated in the Colorado Statute:
The state engineer's certificate of approval of a livestock
water tank on each normally dry stream and its tributaries shall
be chronologically numbered in the order of the completion there-
of, and priority of right as between such tanks located on or
within the watershed of each dry stream shall be determined by
such numbers seriatim, number one being first in such right.
The certificate of approval, specified in section 35-49-108,
shall contain a certification of the priority of the use speci-
fied. (657)
Other Surface Waters—Surface waters other than diffused surface
waters can be divided into two further categories—waste and seepage, and
developed waters.
In the case of Bieaer v. Stoddard (658), the Colorado Supreme Court
defined developed waters as follows:
Developed waters, strictly speaking, must be those waters
which run to waste except for their discovery and development.
(659)
This doctrine of developed waters applies only to that water augmenting
the flow of a stream; it must be a new supply of water and not a mere
hastening of the present flow in the stream. A person who thus augments
the flow of a stream is entitled to the use of such water in a quantity
equal to the increase in flow caused by the developed water:
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It is only the actual increase resulting from the addition of
water to a natural stream which would not otherwise pass down
either its surface or subterranean channel, to the benefit
of other prior appropriators, which the law recognizes as an
increase of that character which can be diverted as against
those entitled to its natural flow. (660)
Water that has been* removed from another watershed or subterranean
channel, and released into a local watercourse is subject to use by the one
importing the water, with the following restrictions:
Whenever an appropriates has lawfully introduced foreign
water into a stream system from an unconnected stream system,
such appropriator may make a succession of uses of such water by
exchange or otherwise to the extent that its volume can be dis-
tinguished from the volume of the streams into which it is in-
troduced. Nothing in this section shall be construed to impair
or diminish any water right which has become vested. (661)
Obviously, the removal of groundwater or surface water from any water-
shed for transport to another area outside the watershed is circumscribed
by the previously mentioned considerations on the tributary character of
such waters and the existing appropriative rights therein.
Seepage waters are waters seeping from the reservoir or other works of
an appropriator (such as irrigation ditches), and which may enter existing
stream channels or become part of some other surface water flow (662).
Whenever seepage waters in their natural flow pattern enter a stream, they
are part of the stream from the moment of their escape. Therefore, seepage
waters escaping and flowing to a natural stream are subject to the hierarchy
of appropriation priorities established on the particular stream. If, on
the other hand, the seepage waters are found not to be part of a stream
system, the landowner upon whose land such waters arise has the superior
right to use those waters (663).
Wastewaters are those waters which are a product of purposeful drainage
from project works, ditches, or runoff from irrigation systems (664). The
same considerations concerning the destiny of the flow applicable to seepage
waters are also applied to wastewaters. Consonant with these considerations
is the principle that: "Waste waters which are again returned either to
the main stream [from which diverted] or its tributaries, become a part of
the waters of the stream the same as though never diverted, and inure to
the benefit of appropriators in the order of their appropriations..."
(665). Insofar as the wastewater is not tributary to a stream system, it
is subject to appropriation; but, if one appropriates wastewater from
another's ditch or irrigation system runoff, the owner of the ditch or
irrigation system is not obligated to maintain existing conditions, so as
to supply the appropriation with wastewater at any time, or in any volume
(666).
In summary, it is clear that the question of use and control of surface
waters, be it "diffused," "waste," "seepage," or "developed," turns on the
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determination of whether or not such waters are tributary to a stream
system. Consequently, in the majority of cases, appropriation by another,
who is outside of the priority scheme on a particular stream, of surface
water naturally flowing to the stream, will be greatly limited by the
vested rights of the stream appropriators.
Even if the surface water is found not to be tributary to any stream,
there still may be considerations of priority as established by such laws
as Colorado's Livestock Water Tank Act (656). Although a landowner has
some right to use surface water flowing over or arising on his land, once
one analyzes the Colorado law and precedent pertaining to such water, the
right is not as broad as it might initially appear.
Implications for Land Application Systems—
The law of surface waters in Colorado 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. Complicating Colorado law (as well as the law of several other
Western States) is the presumption that all surface water is tributary to a
stream. With that in mind, it is important that the operators of a land
application system take note of the surrounding topography so as not to
interfere with stream appropriators depending on local surface water runoff
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 damage liability to local stream appropriators.
If, on the other hand, precautions are taken' to retain trace pollutants
within the perimeter of the site after application of the wastewater,
surface waters, such as precipitation, will also necessarily be retained at
the site, and will not flow across adjoining lands as they had prior to
institution of that land application system. Given the presumption that
all surface flows are tributary to stream systems, it will be difficult
to establish otherwise and, thus, allow for impoundment of that water.
Only if the surface waters are established not to be tributary to a stream
system, may the water be impounded without risk of liability.
Thus, the major factor distinguishing Colorado (and 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 which any land application system will be allowed to interrupt or
impound the flow of surface water coursing across the land chosen as the
application site.
Although Colorado ha.s 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 ap-
propriators 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
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and the impoundment will affect their duties. Second, even if the surface
water is proven to be nontributary, there is still the possibility that
that water is already being used by an appropriator, and consequently,
appropriation of that water by the land application system 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
tributary), the possibility exists that the on-land application system will
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.
Given these basic principles, the recommendations contained in Volume
I of this report for land application systems as they relate to surface
waters in appropriation theory states apply in Colorado. In addition, the
Colorado Department of Health has developed separate guidelines for both
large wastewater application systems (667) and small individual units
(668).
* i '
The guidelines applicable to small individual land application units
require that the distance between discharge and inhabited premises be
sufficient to prevent the development of a nuisance condition (669) and the
distribution areas be sufficient to absorb the total effluent flow (670).
In addition, the guidelines require that all discharges be contained within
the system's perimeter (669). This should be done even if it involves also
containing diffused surface water, such as rainfall, within the system's
perimeter. Containing this water can be done without risk of liability if
the surface water is a nontributary flow and not already subject to ap-
propriation in whole or in part. According to the Colorado law on the use
of surface water, an upper landowner can redirect the flow of such water
into ditches or ponds, if the redirection is handled with due care and does
not injure adjoining landowners or other appropriations.
Law of Groundwater
Description—
The general distinction between percolating waters and underground
streams, which dominates the law of groundwaters in a majority of the
appropriation doctrine jurisdictions, is immaterial in Colorado water law
(671). What is important is the distinction between tributary and non-
tributary groundwater flows. As in the case with surface waters, this
characterization of groundwater leads to a presumption that all such water
within the watershed of a stream system is tributary to that stream and
subject to the appropriation rights of the water users on the stream:
[T]here is a presumption that underground water is tributary to
a natural stream in the watershed in which it is found and that
he who asserts that underground water is not tributary to a
stream has the burden of establishing that fact. In the absence
of such evidence the presumption prevails. (672)
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Ground water, in Colorado's century of water use development is
not to be regarded as property of the public, except in such in-
stances where it is tributary to a natural stream. ...but that
presumption is prima facie only, and is therefore rebuttable. (673)
The law governing underground water in Colorado is predominately
statutory; the Water Right Determination and Administration Act of 1969
(674) establishes the legal framework in which all types of waters are
administered. The Act sets out in detail certain considerations pertinent
to tributary groundwaters. Most importantly, all surface and groundwaters
in the state that are tributary to a natural stream are subject to ap-
propriation and use. Included among such waters is the underflow of natural
streams, which Colorado law recognizes as part of the stream itself and not
a separate water flow in which rights can be obtained outside of the ap-
propriation arrangement of the surface flow itself (675).
Pursuant to the Act of 1969, an appropriator of water from an under-
ground stream or a surface stream can supply his additional water needs
from a well, even if the well taps into a tributary of the stream upon an
alternate point of diversion. However, the right of a senior appropriator
to satisfy his needs at the expense of a junior appropriator is limited by
Colorado Statutes:
(2) Each division engineer shall order the total or partial
discontinuance of any diversion in his division to the extent the
water being diverted is not necessary for application to a bene-
ficial use', and he shall also order the total or partial discon-
tinuance of any diversion in his division to the extent the water
being diverted is required by persons entitled to use water under
water rights having senior priorities, but no such discontinuance
shall be ordered unless the diversion is causing or will cause
material injury to such water rights having senior priorities....
(Emphasis added) (676)
This subsection of the statutes requires the senior appropriator to
utilize all available alternatives to supply his water use needs, before a
junior appropriator will be required to sacrifice his rights to quantity.
Obviously, the senior's use and the points of diversion from which he draws
his water will be governed by the water law principles discussed in regard
to natural watercourses.
The statutory provision governing nontributary flows of groundwater
(such as designated groundwater) is:
(6) 'Designated ground water' means that ground water
which in its natural course would not be available to and re-
quired for the fulfillment of decreed surface rights, or ground
water in areas not adjacent to a continuously flowing natural
stream wherein ground water withdrawals have constituted the
principal water usage for at least fifteen years preceding the
date of the first hearing on the proposed designation of the
basin and which in both cases is within the geographic
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boundaries of a designated ground water basin. (677)
Colorado's law relating to nontributary groundwaters was changed by
the Ground Water Management Act (678). Section 37-90-102 of the 1973
Revised Statutes permitted these waters to be appropriated for the first
time:
It is hereby declared that the traditional policy of the
state of Colorado, requiring the water resources of this state
to be devoted to beneficial use in reasonable amounts through
appropriation, is affirmed with respect to the designated
ground waters of this state, as said waters are defined in
section 37-90-103(6). While the doctrine of prior appropriation
is recognized, such doctrine should be modified to permit the
full ecomonic development of designated ground water resources.
Prior appropriations of ground water should be protected and
reasonable ground water pumping levels maintained, but not to
include the maintenance of historical water levels. All desig-
nated ground waters in this state are therefore declared to be
subject to appropriation in the manner defined in this article.
The Ground Water Management Act establishes a permit system and a
Ground Water Commission made up of 12 members to review the applications
for these permits to draw on designated waters (679). Detailed analysis of
the impact of the Act is beyond the scope of this report. However, in the
final analysis, the right of users of designated groundwaters are controlled
by the principles of the prior appropriation doctrine enumerated therein.
Implications for Land Application Systems—
Colorado is one of the majority of Western States that applies its
appropriation doctrine to all underground waters. Consequently, the legal
implications are different than those pertaining to groundwaters in riparian
states. They are, instead, comparable to the natural watercourse legal
structure in appropriation states.
The Colorado groundwater law does not distinguish 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 subject to appropriation as a nontributary water source. Colorado
presumes that all groundwaters are tributary to natural watercourses. This
presumption raises a number of problems. First, claims or priority will
have to be considered not only in respect to local surface stream appro-
priators to which the underground water is tributary, but, even in the case
of nontributary groundwaters.
Second, if the groundwater becomes polluted, groundwater appropriators
or surface stream water users will have a cause of action against the land
application system causing the pollution.
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
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this burden obviously depends on topography, soil conditions, subterranean
rock structures, and the proximity of other natural watercourses, among
other factors.
Certain precautions to minimize liability can be taken provided, of
course, that the initial stages of establishing an appropriation for land
application have been passed successfully. These precautions have been
discussed in Volume I of this report. In addition to the general recom-
mendations noted therein, it should also be noted that in operating a land
application system, the Colorado Department of Health guidelines concerned
with small individual systems require that the effluent be contained within
the boundaries of the premises (669).
Even if all precautions are taken, it is still possible, of course,
that trace pollutants might seep into underground water supplies after
application. If that happens, and if those pollutants find their way into
nearby streams, the land application system could be held liable for provable
damages. Although the "beneficial use" concept would temper the extent of
liability, it does not preclude the fact of liability. Interference with
an established appropriative right is actionable and there appears to be no
consideration that would allow a party to escape liability therefor.
Summary
The Colorado Department of Health has recently developed guidelines
concerned with large wastewater application systems (over 2,000 gallons per
day) (667) and small individual systems (under 2,000 gallons per day)
(668). Both of these guidelines are more rudimentary than those of some
other states, but are stringent in several respects. This stringency may
tend to discourage the creation of land application systems in Colorado.
One or the other of the Colorado guidelines specify standards for
effluent disinfection, BOD, COD, fecal coliform density, suspended matters,
nutrients, and trace elements (680). None of these standards are overly
stringent. More troublesome, however, are some of the general conditions
stated in one or the other guidelines. For example, the guidelines con-
cerned with small individual systems require that the effluent be contained
within the boundaries of the premises, and that the discharge be a suf-
ficient distance from inhabited property as to prevent development of a
nuisance condition (681). A more specific standard for a buffer zone might
be desirable because it would be more predictable; however, the use of the
legal term "nuisance" indicates that minor harm or irritation would not
fall within the scope of this prohibition.
Another provision in the small application system guidelines requires
that effluent be distributed over an area sufficient to absorb the total
effluent flow and that the effluent shall not be applied to edible crops
(682). A provision prohibiting the use of sludge on crops eaten raw by
humans is in the guidelines concerned with large scale application systems
(683). These statements will cause difficulty. The flat prohibition
against use of effluent on edible crops in the small scale system guidelines
(no distinction is made on whether the edible crops are for human
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consumption or not), of course, eliminates a wide variety of possible uses
of effluent. Although this prohibition is not compelled by the underlying
Colorado water law, nowhere in the guidelines is there any exception to or
qualification of this prohibition.
Moreover, even within the restricted areas within which effluent may
be used (such as for forage crops) under the small scale system guidelines,
the requirement regarding "an area sufficient to absorb the total effluent
flow" may raise additional problems. What is meant by the term "total
effluent flow?" If it means the applied effluent, the restriction is not
unreasonable, particularly as applied to a system such as an overland-flow
system. On the other hand, if the statement prohibits any dispersal of
pollutants as part of the effluent flow, then it may establish a standard
difficult if not impossible to meet. Possibly the guidelines could be
interpreted to restrict flow across adjoining lands or into waterways, and
not dispersal of trace contaminants into the earth, since the latter is not
really a "flow." If this is the case, then these guidelines merely reiterate
the previous requirement that effluent be kept within the boundaries of the
premises, and is not unduly burdensome. On the other hand, it would seem
that the guidelines must have been intended to do more than restate the
immediately preceding1 section of the guidelines.
In the absence of administration interpretation and application of
both the Colorado Department of Health guidelines, they are restrictive and
vague in several important respects. While these guidelines are not com-
pelled by Colorado water law, the fact remains that Colorado's water law is
not, on the whole, as favorable to land application systems as the water
law of several other states.
For example, the surface water law of Colorado is less favorable
because of the narrow scope of the surface water definition, and the pos-
sibility of there being appropriative rights in surface waters. Unlike the
situation existing in most other states, a land application system cannot
resolve any surface water issues by the simple expedient of detaining all
surface waters at the application site. In some topographical situations
this will be possible, but in others it will be impossible without either
interfering with pre-existing rights in surface waters or running afoul of
the two Colorado Department of Health guidelines.
With this reservation, operation of land application systems will be
possible within the relatively limited area presently permitted by both the
guidelines. The overall posture of the Colorado law, however, while not
totally unfavorable, is relatively less favorable than the legal context
that exists in most other states discussed in these reports.
KANSAS
Legal Background
Kansas does not have any regulations pertaining to land application of
wastewater. The Kansas Department of Health and Environment encourages
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such irrigation where it is shown to be cost effective; however, disin-
fection is required prior to irrigation (684).
What makes Kansas unique is that it is the only state west of the
Mississippi to have applied exclusively the riparian doctrine until rela-
tively recent times. Initially, the Kansas Supreme Court even applied the
"natural flow" branch of the riparian doctrine. In Shmleffer v. Council
Grove Peerless Mill Co. (685), it was said that each riparian owner "...is
entitled to a stream of water flowing through his land, without diminution
or alteration" (686). However, by 1881, the reasonable use doctrine became
the law governing water rights in Kansas. In City of Emporia V. Soden
(687), it was said that "...each riparian owner may, without subjecting
himself to liability to any lower riparian owner, use of the water whatever
is needed for his own domestic purposes and the watering of his stock"
(688). The reasonable use doctrine was constantly (if not consistently)
applied until the Kansas Legislature adopted the Water Appropriation Act of
1945 (689). During this period, Kansas was the only one of the seventeen
Western States not applying the prior appropriation doctrine.
Several times prior to 1945, application of the prior appropriation
doctrine was resisted by the Kansas Supreme Court in spite of piecemeal
attempts at legislative implementation. For example, an 1886 Act provided
that landowners could acquire appropriation rights by recording notices
with the county register of deeds (690). A 1917 Act supplemented this
procedure by allowing the Kansas Water Commission to grant such rights upon
appropriate application (691) and in 1927 this duty was transferred to the
Division of Water Resources in the State Board of Agriculture (692) .
In 1936, the Kansas Supreme Court said all of the above was to no
avail whenever the appropriation rights would operate as against landowners
who acquired their lands by grant from the Federal government or whose
predecessors in interest had so acquired the land (and thus their common
law water rights) before the statutes took effect (693). To allow the
appropriation doctrine to affect those rights would be a taking of property
rights recognized at law and, therefore, an unconstitutional taking of
property.
After yet another legislative attempt to correct this situation (694),
another supreme court decision rendered this legislation, also, completely
ineffective. In State ex. rel. Peterson v. State Board of Agriculture
(695), it was held that the common law right to absolute ownership of all
groundwaters was still the Kansas law and that the Kansas Division of Water
Resources was without power to allocate or distribute the same without
compensating the owner.
Faced with such judicial intransigence, the executive and legislative
branches decided to wipe the spotted slate of the appropriation doctrine
clean and start writing a new comprehensive statutory plan which would
apply the appropriation doctrine across the board to all waters, regardless
of their classifications in common law terms. The result was the Water
Appropriation Act of 1945 (689).
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Water Appropriation Act of 1945
Following the Peterson decision (695), the Governor of Kansas appointed
a committee to study the water law of the state and propose changes. The
committee concluded that:
"... unused water cannot wisely be held in perpetuity for a com-
mon-law owner who may never have use for it, without resulting in
underdevelopment permitting the water to flow out of the state
and on toward the ocean, as an economic waste and loss of a
valuable natural resource. It (the committee) believes two
things are needed, (1) to establish the right of appropriation
under the rule of priority of right, and (2) to establish ade-
quate administrative control over the appropriation of water to
prevent overdevelopment of any source of supply with resulting
injury to established uses.1 (696)
A statute embodying the committee's desires was drafted, recommended to the
legislature by the governor, and passed into law as the Water Appropriation
Act of 1945 (689). This legislation was patterned after earlier Oregon
legislation, in that it limited vested rights of riparian claimants to
actual beneficial use of water at the time of the 1945 passage, or within a
reasonable time thereafter in the case of works then under construction.
The validity of this statute was subsequently sustained by the Kansas
Supreme Court (697).
The Water Appropriation Act of 1945, as later amended (689), is the
primary source of the substantive law of water rights for all categories of
water within the state of Kansas at present.
All water in the state is subject to state control and regulation
(698). Subject to vested rights, "...all waters ... may be appropriated
for beneficial use" (699). A "vested right" is the right to continue using
water for any beneficial use when the water was being so used prior to the
adoption of the Water Appropriation Act (700). Appropriation rights can be
acquired in two ways: (1) by using water for domestic purposes (701); and
(2) by obtaining the approval of the chief engineer (702). The chief
engineer means the chief engineer of the Division of Water Resources in the
Kansas State Board of Agriculture (703).
The chief engineer has broad discretionary powers to administer and
enforce the laws of the state (704) and to adopt and enforce rules, regu-
lations, and standards (705). All applications for appropriation rights
are made to the chief engineer, who approves or disapproves them (702).
If the application for appropriation rights is approved% an appropriator
gets the right to use a "...specific quantity of water ... [subject to]
reasonable raising or lowering of the static water level and ... reasonable
increase or decrease of the streamflow" (706). He is also allowed to
enjoin any later appropriators who interfere with his beneficial use (707).
In general, Kansas' water law structure is now similar to those other
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appropriation states which recognize only the right of appropriation (al-
though Kansas still protects riparian rights predating 1945). Since all
waters are subject to appropriation, possible distinctions between types of
waters which may prove troublesome in other Western States are irrelevant
in Kansas. Unlike other Western States, Kansas is unique in that its water
law, in effect, dates from 1945, and is therefore not entangled with his-
torical considerations involving either the riparian doctrine or the original
settling of the West.
Basic water law in Kansas is favorable to the establishment of on-land
application systems. All waters—natural watercourses, surface waters, and
groundwater—may be appropriated for beneficial uses under the Water Appro-
priation Act of 1945 (689). Water used in land application systems is
considered a beneficial use. Operators of systems would, however, have to
obtain approval of the State Board of Agriculture to appropriate water.
Retaining surface waters on one's land would, for example, be considered
appropriation of that water.
TEXAS
Texas does not have any formally adopted administrative1 regulations
pertaining directly to land disposal of treated effluent; however, the
Texas Department of Health Resources and Texas Water Quality Board (now
Texas Water Development Board) have jointly issued guidelines, "Design
Criteria for Sewerage Systems," (708) dealing with the subject. Sewage
effluent may be utilized for irrigation purposes under the guidelines when
it can be shown that the practice will not alter the uses of existing
groundwaters or detrimentally affect the surface waters of the state (709).
Each application for a permit to operate a land disposal project is
considered on an individual basis (710). Applications for projects must be
accompanied by maps, diagrams, plans, and specifications that discuss the
site's location, ownership and uses o^f land adjoining the site, geologic
formations of the site, groundwater hydrology of the site, effluent quality,
and agricultural practices to be carried out at the site (711).
Texas Water Code of 1971
The Texas Water Code of 1971 (712), particularly that portion of it
known as the Texas Water Quality Act (713), maintains a tight statutory
control over discharges into "waters" of the state. Any municipality or
other political subdivision of the state proposing a land treatment system
will be required by the Texas Water Commission (formerly a function of the
Texas Water Quality Board) to obtain a permit prior to operating the
facility (714). As long as the system operates within the confines of the
permit (which is subject to revision by the Texas Water Commission), the
state may not obtain injunctive relief for operation of the system (715).
•The permit, as long as it is being obeyed, constitutes a"limited entitle-
ment or license to pollute.
It is possible that the property owner may also be required under the
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Water Code to obtain a permit if the land is improved for purposes of
facilitating disposal of the effluent. The Water Code is written in very
broad language. For example, section 26.001, which includes the definitions,
provides:
(5) 'Water' or 'water in the state' means groundwater, per-
colating or otherwise, lakes, bays, ponds, impounding reservoirs,
springs, rivers, streams, creeks, estuaries, marshes, inlets,
canals, the Gulf of Mexico inside the territorial limits of the
state, and all other bodies of surface waterf natural or artifi-
cials inland or coastal, fresh or salt, navigable or nonnavigable,
and including the beds and banks of all watercourses and bodies
of surface water, that are wholly or partially inside or border-
ing the state or inside the jurisdiction of the state. (Emphasis
added) (716)
(8) 'Municipal waste* means waterborne liquid, gaseous or
solid substances that result from any discharge from a publicly
owned sewer system, treatment facility, or disposal system.
(Emphasis added) (717)
(17) 'Disposal system* means any system for disposing of
waste, including sewer systems and treatment facilities.
(Emphasis added) (718)
(20) 'To discharge' includes to deposit, conduct, drain,
emit, throw, run, allow to seep, or otherwise release or dis-
pose of, or to allow, permit, or suffer any of these acts or
omissions. (719)
The irrigation facilities would clearly be a "disposal system" under
the broad definition of section 26.001(17) of the Water Code. Section
26.001(8) seeks to transform the effluent being "discharged" into any
"water" or "water of the state" into a "municipal waste," but will not do
so unless the system is a "publicly owned" one. Unless the property is
owned by a public body, such as a municipality, in which case it must
obtain a permit, a privately-owned system clearly is not "publicly owned"
and so his waste is not a "municipal waste," unless the character of the
waste is presumed to be unchanged through the "disposal system" to the
point of its discharge into a groundwater aquifer (which is a "water of the
state"), or into a watercourse (which is a "water of the state"), or into a
holding basin of some sort constructed by the system operator to prevent
runoff and pollution of a watercourse—in which case, the holding pond
itself may be a "water of the state." Remember, section 26.001(5) of the
Water Code includes "...all other bodies of surface water [including] ...
artificial...."
"Waste" is defined by section 26.001(6) of the Water Code to include
"...sewage, industrial waste, municipal waste, recreational waste, agri-
cultural waste...." But the Water Code, in section 26.001(10) specifically
excludes, in defining "agricultural waste," any "...tail water or runoff
water from irrigation or rainwater runoff from cultivated or uncultivated
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range land, pasture land, and farmland."
Thus, the Water Code is ambiguous, since the term "irrigation" is
nowhere defined. There is a good likelihood that a court might find that
the "waste" going through a private disposal system is still a "municipal
waste" and not "irrigation water" as contemplated under the Water Code. No
such case interpreting this aspect of the law is reported in the literature.
In view of the ambiguity of the Water Code in this area, it is ad-
visable for any potential system operator to obtain a permit from the Texas
Water Commission until such time as it promulgates a rule interpreting this
problem area or until a Texas court makes the interpretation. It may even
be more desirable to obtain a permit from the state in some instances,
since failure to do so allows the county to regulate the system (720).
Section 26.031 of the Water Code provides for "private sewage facilities,"
which are defined as "...all other facilities, systems, and methods used
for the disposal of sewage other than disposal systems operated under a
perm-it issued by the commission" (Emphasis added). So a system is either
nonprivate, in which case a permit is needed, or it is private, in which
case no permit is needed, but the county can enjoin its operation. Issuance
of a permit by the state suspends the county's right to enjoin operation of
the facility.
Law of Natural Watercourses
Texas uses both the prior appropriation and the riparian doctrines.
This dual system is within the scope of the "California doctrine" (721).
Unlike in California, however, where the riparian right is observed more in
theory than in fact, in Texas, riparian rights are frequently of importance.
Texas employs the riparian doctrine in the eastern part of the state where
the terrain and custom more nearly resemble that of states east of the
Mississippi River. In the arid prairie sections of West Texas, the prior
appropriation doctrine is usually controlling. Thus, in a given fact
situation, Texas law could resemble either that of the typical appropriation
theory states or that of its riparian neighbors to the east.
Law of Surface Waters
Texas applies the "civil law" rule, which means that a person who
interferes with the natural flow of surface waters so as to invade another's
interests in the use and enjoyment of his land is subject to liability to
the other (722). This broad rule will allow recovery for any damages
caused another by changes to the natural flow pattern of surface waters on
a parcel of Texas real property (723). The principal theories of recovery
for pollution are nuisance or negligence.
Negligence is the breach of a legal duty of care owed to another with
consequent damage, but without intent. In the case of the operator of a
land treatment system, if such operator operates the system carelessly so
as to allow rainwater to sweep away contaminants from it and deposit them
on the land of his neighbor, resulting in damage to the neighbor's property
or person, the negligent operator is liable to the injured neighbor for
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damages. Before an action on a theory of negligence may be successfully
pursued, it must allege:
1. An interest in the court will protect—an interest in land will
do;
2. A duty on the part of the operator to operate the land treatment
system reasonably so as not to harm the plaintiff;
3. Breach of the duty owned by unreasonable operation of the systems;
and
4. Resulting harm to plaintiff flowing directly from the negligence
of the person operating the land treatment system.
Allegation of these elements makes out a prima facie case of negli-
gence and the plaintiff, if successful in his proof, can recover damages as
well as an injunction to stop the continuous pollution of his property.
Although earlier cases had suggested that Texas would adopt a strict lia-
bility rule in pollution cases, the Texas Supreme Court in a 1936 decision,
Tumev v. Big Lake Oil Co. (724), held that a plaintiff must prove negligence
before he can recover. If the plaintiff can show that the system is opera-
ting outside of its permit from the Texas Water Commission, he can show
negligence pev sef and proof of negligence on the part of the operator is
then unnecessary. This makes his case much easier and his likelihood of
recovery in court much greater.
Lawsuits by adjoining property owners usually arise when a system is
either improperly designed, constructed, or operated. Preventive measures
include good design, adequate supervision of construction by a competent
engineer, testing the system prior to placing it in service, and testing
the system by competently trained operators after the facility is in opera-
tion. Texas assures much of this by requiring approval of plans and speci-
fication for such projects by the State Department of Health Resources and
Water Commission (711).
Nuisance differs from negligence in the important respect that reason-
able care is not a defense to a charge of nuisance. Under negligence
theory, if the defendant operator can show that he has operated his system
according to the standard care imposed by law, he will not be held liable
for negligence. On the contrary, reasonable care is irrelevant in a
nuisance action. The plaintiff must only show that the defendant is causing
or threatening to cause damage to an interest that the court will protect.
Traditionally, Texas courts have protected only economic interests, as
opposed to aesthetic or recreational interests (725).
In cases where a plaintiff has suffered special injury caused by an
otherwise lawful business operation, he may seek to enjoin the nuisance.
In deciding whether to issue an injunction, the Texas court will balance
the equities, weighing the damage to the plaintiff against the value to the
community in maintaining the defendant's nuisance. The defendant will be
permitted to prove the value of his pollution by offering evidence that
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abatement of the nuisance would cause detriment to the local community in
terms of jobs, services, or goods. Preventive measures to avoid nuisance
actions include the same design and operative care recommended under negli-
gence. This will not guarantee freedom from lawsuits under a nuisance
theory, but will build a better base for establishing inconsequential harm
to the plaintiff, which in turn helps the defendant in the court's balancing
the equities to determine if an injunction should be issued. Attack through
a nuisance legal theory is a calculated risk that is run by any public body
contemplating installation of a public sewage treatment facility. Proper
design and operation will go a long way toward preventing the kind of
ongoing offense characteristic of nuisance, thus relegating lawsuits to the
occasional levee break or surcharge of effluent that might be traceable to
negligence—an easier theory to defend against.
Law of Groundwater
Texas follows the English rule as to right to groundwater, which is
also referred to in Texas as percolating water. Simply stated, that rule
provides that an owner of land has a legal right to take all the water he
can capture under his land that is needed by him for his use, even though
the use has no connection with the use of the land as land and requires the
removal of the water from the premises where the well is located (726).
If a particular case involved an adjacent property owner who drained
his low-lying land into an underground aquifer through a permeable soil and
sub-soil, and a nearby land treatment system using the rapid infiltration
method elevated the water table and ruined his 'drainage, it is unclear
whether there would be liability in Texas. The English rule concerns
itself with withdrawal of water from the ground and not introduction of
water into the ground. The apparent reason that Texas has not experienced
this problem is that a rapid infiltration system recharges the groundwater
table. Because the groundwater table in Texas is usually too low, there
are usually very few problems with its elevation. Even if an elevation
problem did exist the injured party may not have a cause of action.
However, looking at it another way a Texas court, in the absence of
applicable groundwater law, might refer by analogy to its law of surface
water, in which case liability could be based on nuisance or negligence.
In such a case, remedies available to the injured party could include
injunctive relief, which might stop the project, and/or damages for the
injury. The appropriate preventive measures to be taken to avoid the
occurrence of such a problem as this is to study the surrounding area to
determine if such a problem existed prior to installing the treatment
system and, if it did, provide some other means of application that does
not result in an elevated groundwater table.
In a case involving pollution of groundwater supplies, it must first
be noted that the Texas Water Quality Act (713) is drawn broadly enough to
include groundwater as a "water of the state," and therefore an illegal
discharge into an aquifer is prohibited by the Act. However, if the land
treatment system is operating within its permit, the discharge is not
unlawful, and so the state may take no action to enjoin. The Texas Water
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Commission, however, could simply change the conditions of the permit such
that the polluter must comply or be then subject to injunction. In effect
there may be a public remedy.
A more important question is whether other users may enjoin the opera-
tion of such a facility, as a rapid infiltration land treatment system,
where recharge of the aquifer results in a polluted water supply for them?
The legal theory upon which private actions against pollution of
groundwater may proceed are not those connected with the law of percolating
water, discussed previously. Instead, the law of nuisance and negligence
must be applied. While courts have overwhelmingly preferred nuisance law
to diversion allocation rules in groundwater pollution cases, the preference
nor nuisance law over negligence law is slight (727). One explanation for
a nuisance preference in groundwater cases might be that this approach
allows for liability without any finding of culpability. This last re-
quirement is not too onerous in surface water cases where the polluter can
reasonably assess the consequences of his act, but may be in subsurface
waters where it is difficult to predict results with any degree of accuracy.
Use of negligence law allows courts to take into account the ability of
each particular polluter to predict the consequences of his activity.
Texas experience in groundwater pollution has been relegated primarily
to private nuisances arising out of the so called "cemetery cases," wherein
injunctions are issued to forestall installation of cemeteries on the
theory that they would pollute wells in the area. The most recent case
simply did not specify a theory upon which to dispose of a case in' which a
proposed sanitary landfill would allegedly pollute underground water sand
(728).
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REFERENCES
1. Harrell v. City of Conway, 224 Ark. 100, 271 S.W.2d 924 (1954).
2. Duckworth v. Williams, 238 Ark. 1001, 386 S.W.2d 234 (1965); Turner
v. Smith, 217 Ark. 441, 231 S.W.2d 110 (1950); Brasko v. Prislovsky,
207 Ark. 1034, 183 S.W.2d 925 (1944); Boone v. Wilson, 125 Ark. 364,
188 S.W. 1160 (1916).
3. Taylor v. Rudy, 99 Ark. 128, 137 S.W. 574 (1911).
4. Meriwether Sand & Gravel Co. v. State, 181 Ark. 216, 26 S.W.2d 57
(1930).
5. 225 Ark. 436, 283 S.W.2d 129 (1955).
6. Harris v. Brooks, 225 Ark. 436, 447-448, 283 S.W.2d 129, 135-136
(1955).
7. St. Louis Southwestern Railway Co. v. Mackey, 95 Ark. 297, 129 S.W. 78
(1910).
8. Naylor v. Eagle, 227 Ark. 1012, 303 S.W.2d 239 (1957); Malvern Gravel
Co. v. McMillan, 200 Ark. 386, 139 S.W.2d 390 (1940); St. Louis, Iron
Mountain & Southern Railway Co. v. Magness, 93 Ark. 46, 123 S.W. 786
(1909).
9. Adair v. Frisby, 233 Ark. 515, 345 S.W.2d 468 (1961); Spartan Drilling
Co. v. Bull, 221 Ark. 168, 252 S.W.2d 408 (1952).
10. 212 Ark. 491, 206 S.W.2d 442 (1947).
11. Jones v. Sewer Improvement District No. 3 of Rogers, 119 Ark. 166,
177 S.W. 888 (1915); St. Louis, Iron Mountain & Southern Railway Co. v.
Anderson, 62 Ark. 360, 35 S.W. 791 (1896).
12. Root Refineries v. Robertson, 176 Ark. 353, 3 S.W.2d 57 (1928); Kansas
City, Ft. Scott & Memphis Railroad Co. v. Cook, 57 Ark. 387, 21 S.W.
1066 (1893).
13. 66 Ark. 271, 50 S.W. 511 (1899).
14. 87 Ark. 41, 112 S.W. 173 (1908).
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15. Levy v. Nash, 87 Ark. 41, 44, 112 S.W. 173, 174 (1908).
16. Hall v. Rising, 141 Ala. 431, 37 So. 586 (1904); Dyer v. Stahlhut, 147
Kan. 767, 78 P.2d 900 (1938); McKiernann v. Grimm, 31 Ohio App. 213,
165 N.E. 310 (1928); Rielly v. Stephenson, 222 Pa. 252, 70 A. 1097
(1908).
17. Solomon v. Congleton, 245 Ark. 487, 432 S.W.2d 865 (1968).
18. Louisville, New Orleans & Texas Railroad Co. v. Jackson, 123 Ark. 1,
184 S.W. 450 (1916).
19. 222 Ark. 327, 259 S.W.2d 501 (1953).
20. 228 Ark. 76, 306 S.W.2d 111 (1957).
21. Jones v. Oz-Ark-Val Poultry Co., 228 Ark. 76, 79, 306 S.W.2d 111, 113
(1957).
22. 152 Ark. 326, 238 S.W. 56 (1922).
23. 210 Ark. 797, 197 S.W.2d 735 (1946).
24. ARK. STAT. ANN. § 5-908 (Repl. 1976).
25. ARK. STAT. ANN. §§ 82-1901 to -1909, 82-1931 to -1943 (Repl. 1976).
26. ARK. STAT. ANN. § 82-1904(10) (Repl. 1976).
27. ARK. STAT. ANN. §§ 82-1904, -1908 (Repl. 1976).
28. Arkansas Department of Pollution Control and Ecology. Regulation
Establishing Water Quality Criteria for Interstate and Intrastate
Streams, Regulation No. 2. Little Rock, Arkansas, 1975.
29. Stevens, R. M. Green Land—Clean Streams: The Beneficial Use of
Wastewater Through Land Treatment, pp. 233-235. Center for Study of
Federalism, Temple University, Philadelphia, Pennsylvania, 1972.
30. ARK. STAT. ANN § 5-911 (Repl. 1976).
31. Sullivan, R. H., M. M. Cohn, and S. S. Baxter. Survey of Facilities
Using Land Application of Wastewater, pp. 99-101. EPA-430/9-73-006.
U.S. Environmental Protection Agency, Washington, D, C., 1973; Stevens,
R. M., aupra note 29, pp. 220-226.
32. Libby, McNeil & Libby v. Roberts, 110 So. 2d 82, 84 (Fla. 1959).
33. Lamb v. Dade County, 159 So. 2d 477 (Fla. 1964).
34. 37 Fla. 586, 20 So. 780 (1896).
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35. 54 So. 2d 673 (Fla. 1951).
36. 46 So. 2d 392 (Fla. 1950).
37. Taylor v. Tampa Coal Co., 46 So. 2d 392, 394 (Fla. 1950).
38. 66 Fla. 220, 63 So. 429 (1913).
39. Little, Brown & Co. American Law of Property, Volume VI-A, § 28.62.
Boston, Massachusetts, 1954.
40. 71 Fla. 14, 70 So. 841 (1916).
41. 78 Fla. 495, 83 So. 912 (1919).
42. Brumley v. Dorner, 78 Fla. 495, 501, 83 So. 912, 914 (1919).
43. 157 Fla. 4, 24 So. 2d 579 (1946).
44. 40 So. 2d 459 (Fla. 1949).
45. 312 So. 2d 248 (Fla. App. 1975).
46. 310 So. 2d 424 (Fla. App. 1975).
47. 169 So. 2d 345 (Fla. App. 1964).
48. New Homes of Pensacola, Inc. v. Mayne, 169 So. 2d 345, 347 (Fla. App.
1964).
49. 81 So. 2d 632 (Fla. 1955).
50. 314 So. 2d 792 (Fla. App. 1975).
51. Florida Department of Environmental Regulation. A Proposed Rule on
Land Application of Domestic Wastewaters. Tallahassee, Florida, 3rd
Draft, December 14, 1976.
52. Telephone Conversation. G. J. Thalbaraz, Environmental Administrator,
Treatment Process Technology Section, Division of Environmental
Programs, Florida Department of Environmental Regulations, Tallahassee,
Florida, October 28, 1977.
53. Florida Department of Environmental Regulation, supra note 51, § IV(A)
(7).
54. Id., § IV(A)(7)(b).
55. Id., § IV(A)(7)(c).
56. Id., § IV(A)(3).
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57. 74 Fla. 1, 76 So. 535 (1917).
58. 87 So. 2d 47 (Fla. 1956).
59. 25 Fla. 381, 5 So. 593 (1889).
60. Florida Department of Environmental Regulation, supra note 51, §§ II,
III(C), IV(A) (8), (9)., (B), V.
61. Id., § IV(A)(8).
62. Id., §§ IV(A)(8), (9).
63. Id., § IV(A)(9).
64. Id., § IV(B)(2).
65. Id., § V(A).
66. Id., § I(A).
67. Id., § I(C).
68. Id., § III(A)(1).
69. Id., § III(A)(2).
70. Id., § III (A) (3).
71. Id., § III(A)(4).
72. Id., § IV(A)(1).
73. Id., § IV(A)(2).
74. Id., § III(C).
75. Id., § IV(B).
76. 4 Ga. 241 (1848).
77. Hendrick v. Cook, 4 Ga 241, 259-260 (1848).
78. Kates, R. C. Georgia Water Law, p. 29. Institute of Government,
University of Georgia, Athens, Georgia, 1969.
79. GA. CODE ANN. § 85-1301 (1970).
80. GA. CODE ANN. § 85-1302 (1970).
81. GA. CODE ANN. § 105-1407 (1968).
155
-------
82. Kates, R. C., supra note 78, p. 31.
83. Pool v. Lewis, 41 Ga. 162, 170 (1870).
84. Pelham Phosphate Co. v. Daniels, 21 Ga. App. 547, 94 S.E. 846 (1918).
85. Parker v. Adamson, 109 Ga. App. 172, 135 S.E,2d 487 (1964).
86. Boardman v. Scott, 102 Ga. 404, 30 S.E. 982 (1897); O'Connell v. East
Tennessee, Virginia & Georgia Railway Co., 87 Ga. 246 (1891); Kates,
R. C., supra note 78, p. 7; Farnham, H. P. The Law of Waters and Water
Rights, Volume III, §§ 820, 827. The Lawyers' Co-Operative Publishing
Co., Rochester, New York, 1904.
87. Price v. High Shoals Manufacturing Co., 132 Ga. 246, 64 S.E. 87 (1909).
88. Stoner v. Patten, 136 Ga. 483, 71 S.E. 802 (1911); Price v. High Shoals
Manufacturing Co., 132 Ga. 246, 64 S.E. 87 (1909).
89. Sweetman v. Owens, 147 Ga. 436, 94 S.E. 542 (1917); Grant v. Kuglar, 81
Ga. 637, 8 S.E. 878 (1889).
90. Parrish v. Parrish, 21 Ga. App. 275, 94 S.E. 315 (1917); City of
Jackson v. Wilson, 146 Ga. 250, 91 S.E. 63 (1916).
91. Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316 (1960);
Roughton v. Thiele Kaolin Co., 209 Ga. 577, 74 S.E.2d 844 (1953).
92. Pool v. Lewis, 41 Ga. 162 (1870).
93. Kates, R. C., supra note 78, p. 34.
94. Price v. High Shoals Manufacturing Co., 132 Ga. 246, 64 S.E. 87 (1909);
Hendrick v. Cook, 4 Ga. 241 (1848).
95. Cheeves v. Danielly, 80 Ga. 114, 4 S.E. 902 (1888).
96. Ellington v. Bennett, 59 Ga. 286 (1877).
97. Roughton v. Thiele Kaolin Co., 209 Ga. 577, 74 S.E.2d 844 (1953);
Hodges v. Pine Product Co., 135 Ga. 134, 68 S.E. 1107 (1910).
98. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944); Goble v.
Louisville & Nashville Railroad Co., 187 Ga. 243, 200 S.E. 259 (1938).
•
99. Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749, 65 S.E. 844 (1909).
100. Kitchens v. Jefferson County, 85 Ga. App. 902, 70 S.E.2d 527 (1952);
Pugh v. Moore, 207 Ga. 453, 62 S.E.2d 153 (1950).
101. 171 Ga. 744, 156 S.E. 595 (1931).
156
-------
102. Kates, R. C., supra note 78, pp. 27-28; American Law Institute. Re-
statement of the Law of Torts, Volume IV, § 849. American Law
Institute Publishers, St. Paul, Minnesota, 1939.
103. Hendrix v. Roberts Marble Co., 175 Ga. 389, 165 S.E. 223 (1932); McNabb
v. Houser, 171 Ga. 744, 156 S.E. 595 (1931); City of Elberton v. Hobbs,
121 Ga. 749, 49 S.E. 779 (1905); Chestatee Pyrites Co. v. Cavenders
Creek Gold Mining Co., 118 Ga. 255, 45 S.E. 267 (1903).
104. Holman v. Athens Empire Laundry Co., 149 Ga. 345, 360, 100 S.E. 207,
214 (1919).
105. Piedmont Cotton Mills, Inc. v. General Warehouse No. Two, Inc., 222 Ga.
164, 149 S.E.2d 72 (1966); Southern Marble Co. v. Darnell, 94 Ga. 231,
21 S.E. 531 (1894).
106. Burleyson v. Western & Atlantic Railroad Co., 91 Ga. App. 745, 87 S.E.
2d 166 (1955).
107. Farkas v. Towns, 103 Ga. 150, 29 S.E. 700 (1897).
108. Georgia Department of Natural Resources, Environmental Protection
Division. Criteria for Wastewater Treatment by Spray Irrigation.
Atlanta, Georgia, Draft, December 1977.
109. Mayor and Council of Albany v. Sikes, 94 Ga. 30, 20 S.E. 257 (1894).
110. Crutcher v. Crawford Land Co., 220 Ga. 298, 138 S.E.2d 580 (1964);
Edgar v. Walker, 106 Ga. 454, 32 S.E. 582 (1899).
111. DeKalb County v. McFarland, 231 Ga. 649, 203 S.E.2d 495 (1974); Mallard
v. Pye, 215 Ga. 645, 112 S.E.2d 620 (1960); Rinzler v. Folsom, 209 Ga.
549, 74 S.E.2d 661 (1953); Cox v. Martin, 207 Ga. 442, 62 S.E.2d 164
(1950).
112. Exley v. Southern Cotton Oil Co., 151 F. 101 (S.D. Ga. 1907).
113. 47 Ga. 260, 269 (1872).
114. Georgia Department of Natural Resources, supra note 108, § IV(F).
115. Id., § IV(0).
116. 66 Ga. 45 (1880).
117. Saddler v. Lee, 66 Ga. 45, 47 (1880).
118. 120 Ga. 253, 47 S.E. 949 (1904).
119. 132 Ga. 178, 63 S.E. 897 (1909).
120. 193 Ga. 618, 19 S.E.2d 508 (1942).
157
-------
121. 1972 Ga. Laws, pp. 976-988, as emended by, 1973 Ga. Laws, pp. 1173-
1285; GA. CODE ANN. §§ 17-1101 to -1115 (Supp. 1977).
122. GA. CODE ANN. §§ 17-1103(c), (d), (f) (Supp. 1977).
123. GA. CODE ANN. § 17-1105 (Supp. 1977).
124. GA. CODE ANN. §§ 17-1106(a), (b) (Supp. 1977).
125. GA. CODE ANN. § 17-1106(g) (Supp. 1977).
126. 128 Ga. App. 653, 197 S.E.2d 437 (1973).
127. North Georgia Petroleum Co. v. Lewis, 128 Ga. App. 653, 655, 197 S.E.2d
437, 439 (1973).
128. Georgia Department of Natural Resources, supra note 108, § IV(M).
129. Id., § IV(D).
130. Id., § VII.
131. Id., § I.
132. Id., §§ IV(A), (B).
133. Id., § IV(C).
134. Id., §§ IV(G), (H), (I), (J), (K).
135. Id., §§ IV(L), (M), (0).
136. Id., § VI.
137. 1964 Ga. Laws, pp. 416-436, as amended by, 1966 Ga. Laws, pp. 316-318,
328-329, 1971 Ga. Laws, pp. 87-88, 176-177, 190-192, 1972 Ga. Laws, pp.
998-1001, 1973 Ga. Laws, p. 1288, 1974 Ga. Laws, pp. 599-607, 12is,
1220, 1977 Ga. Laws, pp. 368-370, 378-379; GA. CODE ANN. §§ 17-501 to
-530 (1971), as amended (Supp. 1977).
138. Georgia Department of Natural Resources, Environmental Protection
Division. Rules and Regulations for Water Quality Control, Ch. 391-
3-6. Atlanta, Georgia, rev., June 30, 1974.
139. Georgia Department of Natural Resources, supra note 108, § II.
140. Id., § III.
141. Ohio River Sand Co. v. Commonwealth, 467 S.W.2d 347 (Ky. 1971).
142. Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161 (1946); U.S. CONST.
amend. V; KY. CONST. §§ 13, 242.
158
-------
143. Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695 (1951).
144. Commonwealth v. Kelley, 314 Ky. 581, 585, 236 S.W.2d 695, 697 (1951).
145. Inland Steel Co. v. Isaacs, 283 Ky. 770, 143 S.W.2d 503 (1940).
146. 141 Ky. 711, 133 S.W. 763 (1911).
147. Department of Highways v. Corey, 247 S.W.2d 389 (Ky. 1952).
148. 327 S.W.2d 397 (Ky. 1959).
149. Kevil v. City of Princeton, 118 S.W. 363 (Ky. 1909).
150. 260 Ky. 151, 84 S.W.2d 35 (1935).
151. Norton Coal Mining Co. v. Wilkie, 224 Ky. 192, 5 S.W.2d 1058 (1928).
152. Taft v. Bridgeton Worsted Co., 237 Mass. 385, 130 N.E. 48 (1921).
153. Elliot v. Fitchburg Railroad Co., 64 Mass (10 Cush.) 191 (1852).
154. New England Cotton Yarn Co. v. Laurel Lake Mills, 190 Mass. 48, 76
N.E. 231 (1906).
155. Ullian v. Cullen, 325 N.E.2d 593, 595 (Mass. App. 1975).
156. McGowen v. Carr, 272 Mass. 573, 172 N.E. 787 (1930).
157. Elliot v. Fitchburg Railroad Co., 64 Mass. (10 Cush.) 191, 193 (1852).
158. Evans v. Merriweather, 4 111. 491, 38 Am. Dec. 106 (1842).
159. MASS. ANN. LAWS ch. 253, § 44 (Michie/Law Co-op Supp. 1977); Clark,
R. E. Water and Water Rights, Volume 7, § 614.3, p. 83. Allen Smith
Co., Indianapolis, Indiana, 1976.
160. 216 Mass. 83, 103 N.E. 87 (1913).
161. DiNardo v. Dovidio, 312 Mass. 398, 45 N.E.2d 269 (1942).
162. 327 Mass. 396, 99 N.E.2d 54 (1951).
163. Fosgate v. Hudson, 178 Mass. 225, 227, 59 N.E. 809 (1901).
164. Kuklinska v. Maplewood Homes, Inc., 336 Mass. 489, 146 N.E.2d 523
(1957).
165. 348 Mass. 795, 205 N.E.2d 219 (1965).
166. 195 Mass. 591, 81 N.E. 468 (1907).
159
-------
167. Parker v. American Woolen Co., 195 Mass. 591, 601-602, 81 N.E. 468, 470
(1907).
168. 196 Mass. 597, 83 N.E. 310 (1907).
169. Merrifield v. Lombard, 95 Mass. (13 Allen) 16, 90 Am. Dec. 172 (1866).
170. Fortier v. H. P. Hood & Sons, Inc., 307 Mass. 292, 30 N.E.2d 253 (1940).
171. Howe v. DiPierra Manufacturing Co., Inc., 294 N.E.2d 495 (Mass. App.
1973).
172. Parker v. American Woolen Co., 215 Mass. 176, 102 N.E. 360 (1913).
173. Gannon v. Hargadon, 92 Mass. (10 Allen) 106 (1865).
174. Mahoney v. Barrows, 240 Mass. 378, 134 N.E. 246 (1922).
175. 281 Mass. 103, 183 N.E. 148 (1932).
176. 345 Mass. 236, 186 N.E.2d 712 (1962).
177. Bainard v. City of Newton, 154 Mass. 255, 27 N.E. 995 (.1891).
178. Belcastro v. Norris, 261 Mass. 174, 158 N.E. 535 (1927).
179. Brodeur v. Palm, 344 Mass. 760, 183 N.E.2d 110 (1962).
180. Town of Holliston v. Holliston Water Co., 306 Mass. 17, 27 N.E.2d 194
(1940).
181. Greenleaf v. Francis, 35 Mass. (18 Pick.) 117 (1836).
182. Davis v. Spaulding, 157 Mass. 431, 32 N.E. 650 (1892).
183. Mears v. Dole, 135 Mass. 508 (1883).
184. Owen v. Field, 102 Mass. 90 (1869).
185. Deyo v. Athol Housing Authority, 335 Mass. 459, 140 N.E.2d 393 (1957).
186. 346 Mass. 617, 195 N.E.2d 65 (1964).
187. Massachusetts Department of Public Health, Environmental Quality
Engineering Department. Guidelines for the Design of Sewage Treatment
Plants with Subsurface Effluent Disposal. Boston, Massachusetts,
April 1975.
188. Loranger v. City of Flint, 185 Mich. 454, 152 N.W. 251 (1915).
189. Grand Rapids & Indiana Railway Co. v. Round, 220 Mich. 475, 190 N.W.
248 (1922); Rummell v. Lamb, 100 Mich. 424, 59 N.W. 167 (1894).
160
-------
190. Pierce v. Riley, 35 Mich. App. 122, 125, 192 N.W.2d 366, 368 (1971).
191. 379 Mich. 667, 154 N.W.2d 473 (1967).
192. Thompson v. Enz, 379 Mich. 667, 688-689, 154 N.W.2d 473, 484-485 (1967).
193. Woodin v. Wentworth, 57 Mich. 278, 23 N.W. 813 (1885).
194. Monroe Carp Pond Co. v. River Raisin Paper Co., 240 Mich. 279, 215 N.W.
325 (1927).
195. Oak Haven Trailer Court, Inc. v. Western Wayne County Conservation
Association, 3 Mich. App. 83, 141 N.W.2d 645 (1966).
196. Smith v. Dresselhouse, 152 Mich. 451, 116 N.W. 387 (1908).
197. Ensign v. Walls, 323 Mich. 49, 34 N.W.2d 549 (1948).
198. O'Donnell v. Oliver Iron Mining Co., 273 Mich. 27, 262 N.W. 728 (1935).
199. Reason v. Peters, 148 Mich. 532, 112 N.W. 117 (1907).
200. Emerald Valley Land Development Co. v. Diefenthaler, 35 Mich. App. 346,
192 N.W.2d 673 (1971).
201. 37 Mich. App. 271, 194 N.W.2d 725 (1971).
202. LeVan v. Hedlund Plumbing and Heating Co., 37 Mich. App. 271, 273, 194
N.W.2d 725, 726 (1971).
203. 185 Mich. 1, 151 N.W. 705 (1915).
204. 7 Mich. App. 319, 151 N.W.2d 826 (1967).
205. Hart v. D'Agostini, 7 Mich. App. 319, 323, 151 N.W.2d 826, 828 (1967).
206. 46 Mich. 542, 9 N.W. 845 (1881).
207. 286 Mich. 520, 282 N.W. 229 (1938).
208. Joldersma v. Muskegon Development Co., 286 Mich. 520, 525, 282 N.W.
229, 231 (1938).
209. MICH. COMPILED LAWS ANN. §§ 323.3, .5 (1975).
210. 1929 Mich. Pub. Acts No. 245, CUB emended; MICH. COMPILED LAWS ANN.
§§ 323.1-.13 (1975).
211. Mich. Admin. Code, R 323.2101 to R 323.2160.
212. Mich. Admin. Code, R 323.2102, Rule 2102(3).
161
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213. Mich. Admin. Code, R 323.2102, Rule 2102(10).
214. MICH. COMPILED LAWS ANN. § 323.5 (1975).
215. Mich. Admin. Code, R 323.2112, Rule 2112.
216. Mich. Admin. Code, R 323.2136, Rule 2136.
217. Mich. Admin. Code, R 323.2137, Rule 2137.
218. Mich. Admin. Code, R 323.2154, .2155, Rules 2154, 2155.
219. MICH. COMPILED LAWS ANN. § 323.10(2) (1975).
220. MICH. COMPILED LAWS ANN. § 323.6 (1975).
221. Great Lakes-Upper Mississippi River Board of State Sanitary Engineers.
Recommended Standards for Sewage Works, Addendum No. 2, Ground Disposal
of Wastewaters. Health Education Service, P. 0. Box 7283, Albany, New
York, rev. ed., April, 1971; Sullivan, R. H., M. M. Conn, and S. S.
Baxter, supva note 31, pp. 120-123.
222. MO. ANN. STAT. § 204.041 (Vernon Supp. 1978).
223. Peterson, M., and others. A Guide to Planning and Designing Effluent
Irrigation Disposal Systems in Missouri. MP 337 3/73/1250. University
of Missouri Extension Division, University of Missouri, Columbia,
Missouri, 1973 [hereinafter cited as Peterson], 90 pp.
224. MO. ANN. STAT. § 204.016(6) (Vernon Supp. 1978).
225. MO. ANN. STAT. § 204.051 (Vernon Supp. 1978).
226. City of Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 471 (1926).
227. Carpenter v. City of Versailles, 65 S.W.2d 957 (Mo. App. 1933).
228. Young, J. E. Property—Surface Water—Drainage—Pollution. Univ. of
Missouri Law Rev., 18(1): 74-79, p. 78, 1953.
229. Snodgrass, C. L., and L. 0. Davis. Law of Surface Water in Missouri.
Univ. of Missouri Law Rev., 24(3): 281-317, 1959.
230. 98 Mo. 497, 11 S.W. 1001 (1889).
231. Peterson, supra note 223, Parts III(C), (E), pp. 11-21.
232. Ingram v. Great Lakes Pipe Line Co., 153 S.W.2d 547 (Mo. App. 1941).
233. 220 Mo. App. 419, 286 S.W. 837 (1926).
234. Shelley v. Ozark Pipe Line Corp., 327 Mo. 238, 37 S.W.2d 518 (1931).
162
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235. Peterson, supra note 223, Part III(C), pp. 10-11.
236. Id., Part I1I(D), pp. 11-12.
237. Id., Part III(C), p. 10.
238. Id., Part III(B), pp. 9-10.
239. Id., Part III(E), pp. 12-21.
240. Id., Part III(F), pp. 21-37.
241. Id., Part III(G), pp. 27-39.
242. Id., Part III(J), pp. 44-58.
243. Prosser, W. L. Handbook of Law of Torts, § 89, pp. 594-596. West
Publishing Co., St. Paul, Minnesota, 4th ed., 1971; American Law
Institute, supra note 102, § 822, comment c, § 832, comment b.
244. Clark, R. E. Water and Water Rights, Volume 3 § 215. Allen Smith Co.,
Indianapolis, Indiana, 1967; American Law Institute. Restatement of
the Law of Torts, Second, Volume I, §§ 158-163. American Law Institute
Publishers, St. Paul, Minnesota, 2d ed., 1965.
245. Kennedy v. Moog, Inc., 48 Misc. 2d 107, 264 N.Y.S.2d 606 (Sup. Ct.
1965), aff'd, 26 App. Div. 2d 768, 271 N.Y.S.2d 928 (1966), aff'd,
21 N.Y.2d 966, 237 N.E.2d 356, 290 N.Y.S.2d 193 (1968).
246. Fox v. City of New Rochelle, 240 N.Y. 109, 112 (1925).
247. Kennedy v. Moog, Inc., 48 Misc. 2d 107, 264 N.Y.S.2d 606 (Sup. Ct.
1965); Rowland v. Union Bag & Paper Corp., 156 Misc. 507, 282 N.Y.S.
357 (Sup. Ct. 1935); American Law Institute, supra note 102, §§ 822,
826, 832; Clark, R. E., supra note 244.
248. Kennedy v. Moog, Inc., 48 Misc. 2d 107, 264 N.Y.S.2d 606 (Sup. Ct.
1965).
249. Barkley v. Wilcox, 86 N.Y. 140, 143 (1881); Kennedy v. Moog, Inc., 48
Misc. 2d 107, 111, 264 N.Y.S.2d 606, 612 (Sup. Ct. 1965).
250. Barkley v. Wilcox, 86 N.Y. 140 (1881).
251. Kennedy v. Moog, Inc., 48 Misc. 2d 107, 264 N.Y.S.2d 606 (Sup. Ct.
1965); Pierson v. Speyer, 178 N.Y. 270, 70 N.E. 799 (1904); Townsend
v. Bell, 167 N.Y. 462, 60 N.E. 757 (1901).
252. Pierson v. Speyer, 178 N.Y. 270, 70 N.E. 799 (1904).
253. Kyser v. New York Central Railroad Co., 151 Misc. 226, 271 N.Y.S. 182
(Sup. Ct. 1934); United Paper Board Co. v. Iroquois Pulp and Paper Co.,
163
-------
226 N.Y. 38, 123 N.E. 200 (1919).
254. Strobel v. Kerr Salt Co., 164 N.Y. 303, 58 N.E. 142 (1900).
255. Boomer v. Atlantic Cement Co., Inc., 26 N.Y.2d 219, 257 N.E.2d 870
(1970); Whalen v. Union Bag & Paper Co., 208 N.Y. 1, 101 N.E. 805
(1913).
256. Kyser v. New York Central Railroad Co., 151 Misc. 226, 271 N.Y.S. 182
(Sup. Ct. 1934).
257. Warren v. Parkhurst, 186 N.Y. 45, 78 N.E. 579 (1906).
258. Drogen Wholesale Electric Supply, Inc. v. State, 27 App. Div. 2d 763,
276 N.Y.S.2d 1015 (1967); American Law Institute, supra note 102,
§ 846.
259. Kossoff v. Rathgeb-Walsh, Inc., 3 N.Y.2d 583, 148 N.E.2d 132, 170
N.Y.S.2d 789 (1958).
260. Friedland v. State, 35 App. Div. 2d 755, 314 N.Y.S.2d 935 (1970);
Nolan v. Carr, 19 Misc. 2d 167, 189 N.Y.S.2d 82 (Sup. Ct. 1959).
261. Bennett v. Cupina, 253 N.Y. 436, 171 N.E. 698 (1930); Bounce v. City
of Elmira, 237 App. Div. 379, 261 N.Y.S. 757 (1932); Seifert v. Sound
Beach Property Owners Association, 60 Misc. 2d 300, 303 N.Y.S.2d 85
(Sup. Ct. 1969).
262. Buffalo Sewer Authority v. Town of Cheektowaga, 20 N.Y.2d 47, 228
N.E.2d 386, 281 N.Y.S.2d 326 (1967); Fox v. City of New Rochelle, 240
N.Y. 109 (1925); Noonan v. City of Albany, 79 N.Y. 470 (1880).
263. Seifert v. City of Brooklyn, 101 N.Y. 136, 4 N.E. 321 (1886).
264. Lytwyn v. Town of Wawarsing, 43 App. Div. 2d 618, 349 N.Y.S.2d 35
(1973).
265. Musumeci v. State, 43 App. Div. 2d 288, 351 N.Y.S.2d 211 (1974).
266. Cashin v. City of New Rochelle, 256 N.Y. 190, 176 N.E. 138 (1931);
Attoram Realty Corp. v. Town & Country Builders, Inc., 14 Misc. 2d
81, 178 N.Y.S.2d 105 (Sup. Ct. 1958).
267. Forbes v. City of Jamestown, 212 App. Div. 332, 209 N.Y.S. 99 (1925).
268. Nolan v. Carr, 19 Misc. 2d 167, 189 N.Y.S.2d 82 (Sup. Ct. 1959).
269. Flanigan v. State, 113 Misc. 91, 183 N.Y.S. 934 (Ct.,. Cl. 1920).
270. People v. New York Carbonic Acid Gas Co., 196 N.Y. 421, 90 N.E. 441
(1909); Friedland v. State, 35 App. Div. 2d 755, 314 N.Y.S.2d 935
(1970).
164
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271. Smith v. City of Brooklyn, 18 App. Div. 340 (1897).
272. People v. New York Carbonic Acid Gas Co., 196 N.Y. 421, 90 N.E. 441
(1909); Bondy v. Utah Construction Co., 23 N.Y.S.2d 125 (Sup. Ct. 1940)
273. People v. New York Carbonic Acid Gas Co., 196 N.Y. 421, 90 N.E. 441
(1909).
274. Dunbar v. Sweeney, 230 N.Y. 609, 130 N.E. 913 (1921); Hathorn v.
Natural Carbonic Gas Co., 194 N.Y. 326, 87 N.E. 504 (1909).
275. Easton v. State, 153 Misc. 395, 275 N.Y.S. 119, modified on other
grounds, 245 App. Div. 439, 283 N.Y.S. 809 (1935), aff'd, 271 N.Y. 507,
2 N.E.2d 669 (1936).
276. Phillips v. Sun Oil Co., 307 N.Y. 328, 121 N.E.2d 249 (1954).
277. N.Y. ENVIR. CONSERV. LAW § 17-0103 (McKinney 1973).
278. N.Y. ENVIR. CONSERV. LAW § 17-0701 (McKinney 1973), as amended,
(McKinney Supp. 1977-1978).
279. National Discharge Pollutant Elimination System (NDPES), 33 U.S.C.
§ 1342 (Supp. V. 1975).
280. N.Y. ENVIR. CONSERV. § 17-0105 (McKinney 1973), as amended, (McKinney
Supp. 1977-1978).
281. N.Y. ENVIR. CONSERV. § 17-0303(2) (McKinney Supp. 1977-1978).
282. N.Y. ENVIR. CONSERV. § 17-0509(1) (McKinney Supp. 1977-1978).
283. N.Y. ENVIR. CONSERV. §§ 17-0701(1)(a)-(c) (McKinney Supp. 1977-1978).
284. N.Y. ENVIR. CONSERV. § 17-1105 (McKinney 1973).
285. N.Y. ENVIR. CONSERV. § 17-1101 (McKinney 1973).
286. N.Y. Codes, Rules and Regulations, Volume 6, §§ 701.1 to .4, 703.1 to
.5.
287. N.Y. ENVIR. CONSERV. § 17-1103 (McKinney 1973).
288. N.Y. ENVIR. CONSERV. § 71-1931 (McKinney 1973).
289. N.Y. ENVIR. CONSERV. § 71-1927(1) (McKinney 1973).
290. N.Y. ENVIR. CONSERV. § 71-1929(1) (McKinney Supp. 1977-1978).
291. N.Y. ENVIR. CONSERV. §§ 71-1933(1), -1939 (McKinney 1973), as amended,
(McKinney Supp. 1977-1978).
165
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292. City of Mansfield v. Balliett, 65 Ohio St. 451, 63 N.E. 86 (1902).
293. Mentor Harbor Yachting Club v. Mentor Lagoons, Inc., 170 Ohio St. 193,
197-198, 163 N.E.2d 373, 376 (1959).
294. 48 Ohio St. 41, 26 N.E. 630 (1891).
295. Columbus & Hocking Coal & Iron Co. v. Tucker, 48 Ohio St. 41, 57,
26 N.E. 630, 632 (1891).
296. Columbus & Hocking Coal & Iron Co. v. Tucker, 48 Ohio St. 41, 61 26
N.E. 630, 633 (1891). ' *
297. City of Mansfield v. Balliett, 65 Ohio St. 451, 473, 63 N E 86 93
(1902). '
298. 5 Ohio App. 84, 24 Ohio Cir. Ct. Rep. (new series) 369, 26 Ohio Cir
Ct. Dec. 362 (1915).
299. Standard Hocking Coal Co. v. Koontz, 5 Ohio App. 84, 88, 24 Ohio
Cir. Ct. Rep. (new series) 369, 372, 26 Ohio Cir. Ct. Dec 362
365 (1915). '
300. 74 Ohio St. 160, 77 N.E. 751 (1906).
301. Salem Iron Co. v. Hyland, 74 Ohio St. 160, 167, 77 N.E 751
(1906). '
302. 79 Ohio St. 263, 87 N.E. 174 (1909).
303. Straight v. Hover, 79 Ohio St. 263, 278, 87 N.E. 174, 176 (1909).
304. 76 Ohio St. 270, 81 N.E. 631 (1907).
305. City of Mansfield v. Bristor, 76 Ohio St. 270, 276, 81 N.E. 631 632
306. Crawford v. Rambo, 44 Ohio St. 279, 7 N.E. 429 (1886); McElrov v
Goble, 6 Ohio St. 187 (1856). y
307. 93 Ohio App. 231, 50 Ohio Opin. 512, 113 N.E.2d 30 (1952).
308. 6 Ohio Nisi.Prius Rep. 309, 9 Ohio Dec. 294 (Common PI. 1899).
309. City of Canton v. Shock, 66 Ohio St. 19, 63 N.E. 600 (1902).
310. 6 Ohio Dec. Reprint 1049 (Super. Ct. Cincinnati 1881).
311. Kemper v. Widow's Home, 6 Ohio Dec. Reprint 1049, 1052 (Suoer ft-
Cincinnati 1881).
312. McElroy v. Goble, 6 Ohio St. 187 (1856).
166
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313. 83 Ohio Law Abs. 200, 165 N.E.2d 683 (1960).
314. Vian v. Sheffield Building & Development Co., 85 Ohio App. 191, 40
Ohio Opin. 144, 88 N.E.2d 410 (1948).
315. 118 Ohio App. 11, 24 Ohio Opin. 2d 352, 193 N.E.2d 274 (1962).
316. Straight v. Hover, 79 Ohio St. 263, 87 N.E. 174 (1909); City of
Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631 (1907); Salem Iron
Co. v. Hyland, 74 Ohio St. 160, 77 N.E. 751 (1906).
317. White v. Long, 12 Ohio App. 2d 136, 41 Ohio Opin. 2d 200, 231 N.E.2d
337 (1967).
318. Straight v. Hover, 79 Ohio St. 263, 87 N.E. 174 (1909); City of
Mansfield v. Balliett, 65 Ohio St. 451, 63 N.E. 86 (1902); McElroy v.
Goble, 6 Ohio St. 187 (1856).
319. Upson Coal & Mining Co. v. Williams, 7 Ohio Cir. Ct. Rep. (new series)
293, 18 Ohio Cir. Ct. Dec. 388 (1905), aff'd, 75 Ohio St. 644, 80
N.E. 1134 (1907).
320. Standard Hocking Coal Co. v. Koontz, 5 Ohio App. 84, 88, 24 Ohio Cir.
Ct. Rep. (new series) 369, 372, 26 Ohio Cir. Ct. Dec. 362, 365 (1915).
321. Tepe v. Village of Norwood, 1 Ohio Cir. Ct. Rep. (new series) 9
(Common PI. 1903), aff'd, 71 Ohio St. 519, 74 N.E. 1134 (1904).
322. Ohio Stock Food Co. v. Gintling, 22 Ohio App. 82, 5 Ohio Law Abs. 203,
153 N.E. 341 (1926).
323. Burch & Johnson v. State, 7 Ohio Nisi Prius 379, 5 Ohio Dec. 137
(Common PI. 1894).
324. 102 Ohio App. 324, 2 Ohio Opin. 2d 357, 143 N.E.2d 146 (1956), appeal
dismissed, 166 Ohio St. 190, 1 Ohio Opin. 2d 470 (1957).
325. 31 Ohio App. 213, 165 N.E. 310 (1928).
326. 5 Ohio Hisi Prius 271, 8 Ohio Dec. 224 (Common PI. 1898),
327. 16 Ohio St. 335 (1865).
328. 15 Ohio App. 2d 233, 44 Ohio Opin. 2d 456, 240 N.E.2d 566 (1968).
329. 30 Ohio Law Abs. 330 (1939).
330. Munn v. Horvitz Co., 175 Ohio St. 521, 26 Ohio Opin. 2d 208, 196
N.E.2d 764 (1964), eert. den.3 379 U.S. 820, 85 S. Ct. Rep. 42 (1964);
Mason v. Commissioners of Fulton County, 80 Ohio St. 151, 88 N.E. 401
(1909); City of Hamilton v. Ashbrook, 62 Ohio St. 511, 57 N.E. 239
(1900); Oakwood Club v. City of South Euclid, 83 Ohio Law Abs. 153,
167
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165 N.E.2d 699 (Ct. App. 1960).
331. Spielberger v. Twelfth Dayton Builders Corp., 76 Ohio Law Abs. 12, 2
Ohio Opin. 2d 190, 142 N.E.2d 561 (Common PI. 1957).
332. Johnston v. Miller, 15 Ohio App. 2d 233, 44 Ohio Opin. 2d 456, 240
N.E.2d 566 (1968).
333. Bey v. Wright Place, Inc., 108 Ohio App. 10, 9 Ohio Opin. 2d 90, 160
N.E.2d 378 (1956).
334. Spicer v. White Brothers Builders, Inc., 118 Ohio App. 11, 193 N.E.2d
274 (1962).
335. Munro, J. Airports, Subdivisions, and Surface Waters. Univ. of
Cincinnati Law Rev., 30(4): 391-417, p. 398, 1960.
336. Lawyers' Co-Operative Publishing Co. AMERICAN JURISPRUDENCE 2d, Waters,
Volume 78, § 118. Rochester, New York, 1975.
337. Wyandot Club v. Sells, 6 Ohio Nisi Prius Rep. 64, 9 Ohio Dec. 106
(Common PI. 1899).
338. Logan Gas Co. v. Glasgo, 122 Ohio St. 126, 170 N.E. 874 (1930);
Wyandot Club v. Sells, 6 Ohio Nisi Pvius Rep. 64, 9 Ohio Dec. 106
(Common PI, 1899); Frazier v. Brown, 12 Ohio St. 294 (1861).
339. Logan Gas Co. v. Glasgo, 122 Ohio St. 126, 170 N.E. 874 (1930).
340. City of Barberton v. Miksch, 12 Ohio Law Abs. 245 (App. 1932), aff'd.,
128 Ohio St. 169, 190 N.E. 387 (1934).
341. Elster v. City of Springfield, 49 Ohio St. 82, 30 N.E. 274 (1892).
342. 23 Ohio Cir. Ct. Rep. (new series) 342, 44 Ohio Cir. Ct. Dec. 284
(Cuyahoga Co. 1912).
343. Bassett v. Osborn, 23 Ohio Cir. Ct. Rep. (new series) 342, 344, 44
Ohio Cir. Ct. Dec. 284, 286 (Cuyahoga Co. 1912).
344. Bassett v. Osborn, 23 Ohio Cir. Ct. Rep. (new series) 342, 346, 44
Ohio Cir. Ct. Dec. 284, 288 (Cuyahoga Co. 1912).
345. OHIO REV. CODE ANN. § 6111.03 (Page 1977).
346. OHIO REV. CODE ANN. § 6111.01(H) (Page 1977).
347. OHIO REV. CODE ANN. § 6111.01 et seq. (Page 1977).
348. OHIO REV. CODE ANN. § 6111.04 (Page 1977).
349. OHIO REV. CODE ANN. § 6111.04(C) (Page 1977).
168
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350. OHIO REV. CODE ANN. § 6111.08 (Page Supp. 1975).
351. PA. STAT. ANN. tit. 35, § 691.1 et aeq. (Purdon 1977).
352. PA. STAT. ANN. tit. 35, § 691.3 (Purdon 1977).
353. PA. STAT. ANN. tit. 35, §§ 691.202, 750.7 (Purdon 1977).
354. Pennsylvania Department of Environmental Resources, Bureau of Water
Quality Management. Spray Irrigation Manual: A Guide to Site
Selection and System Design, Including Preparation of Plans and
Reports. Publication No. 31. Harrisburg, Pennsylvania, ed., 1972.
49 pp.
355. Id., p. 2.
356. Clark v. Pennsylvania Railroad Co., 145 Pa. 438, 22 A. 989 (1891).
357. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 A. 453 (1886).
358. Folmar v. Elliot Coal Mining Co., 441 Pa. 592, 272 A.2d 910 (1971).
359. Chamberlin v. Ciaffoni, 373 Pa. 430, 96 A.2d 140 (1953).
360. Lucus v. Ford, 363 Pa. 153, 69 A.2d 114 (1949).
361. Collins v. Chartiers Valley Gas Co., 131 Pa. 143, 18 A. 1012 (1890);
Haldeman v. Bruckhart, 45 Pa. 514 (1863).
362. 25 Pa. 528 (1855).
363. Wheatley v. Baugh, 25 Pa. 528, 532 (1855).
364. Zimmerman v. Union Paving Co., 335 Pa. 319, 6 A.2d 901 (1939).
365. Meddock v. National Transit Co., 105 Pa. Super. Ct. 553, 161 A. 628
(1932); Buck v. Tide Water Pipe Line Co., 153 Pa. 366, 26 A. 644 (1893).
366. Vandivort v. Hunter, 265 Pa. 585, 109 A. 479 (1920).
367. Tennessee Department of Public Health, Bureau of Environmental Health
Services, Division of Water Quality Control. Division of Water
Quality Control Guidelines, Chapter 8, Land Applications of Wastewater.
Nashville, Tennessee, 1976.
368. Tennessee Water Quality Control Board. General Regulations.
Nashville, Tennessee, April 1973.
369. 1971 Tenn. Pub. Acts, Ch. 164, §§ 1-19, aa amended by, 1971 Tenn. Pub.
Acts, Ch. 386, §§ 1-9, 1972 (Adj. S,) Tenn. Pub. Acts, Ch. 444, § 1,
1972 (Adj. S.) Tenn. Pub. Acts, Ch. 631, §§ 1-3, 1973 Tenn. Pub. Acts,
Ch. 105, § 1, 1973 Tenn. Pub. Acts, Ch. 98, § 5, 1976 (Adj. S.) Tenn.
169
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Pub. Acts, Ch. 806, § 1; TENN. CODE ANN. §§ 70-324 to -342 (Repl. 1976)
370. Juergensmeyer, J. C. The Tennessee Water Quality Act of 1971: A
Significant New Environmental Statute. Vanderbilt Univ. Law Rev.,
25(2): 323-330, 1972.
371. TENN. CODE ANN. § 70-325 (Repl. 1976).
372. TENN. CODE ANN. § 70-327(a) (Repl. 1976).
373. TENN. CODE ANN. § 70-329 (Repl. 1976).
374. TENN. CODE ANN. § 70-328 (Repl. 1976).
375. TENN. CODE ANN. § 70-336 (Repl. 1976).
376. TENN. CODE ANN. §§ 70-328(a), -336 (Repl. 1976).
377. TENN. CODE ANN. § 70-330 (Repl. 1976).
378. TENN. CODE ANN. §§ 70-335, -336 (Repl. 1976).
379. TENN. CODE ANN. §§ 70-330, -336 (Repl. 1976).
380. TENN. CODE ANN. § 70-330(b) (Repl. 1976).
381. TENN. CODE ANN. § 70-331 (Repl. 1976).
382. TENN. CODE ANN. § 70-339(a) (Repl. 1976).
383. TENN. CODE ANN. § 70-339(b) (Repl. 1976).
384. TENN. CODE ANN. § 70-338Ca) (Repl. 1976).
385. TENN. CODE ANN. § 70-337 (Repl. 1976).
386. TENN. CODE ANN. § 70-342(a) (Repl. 1976).
387.. Personal Interview. Robert G. O'Dette, Waste Treatment Section,
Division of Water Quality Control, Tennessee Department of Public
Health, Nashville, Tennessee, November 8, 1976.
388. Tennessee Water Quality Control Board, supra note 368, Regulations
10 & 12.
389. Id., Regulation 11.
390. Id.t Regulation 17.
391. TENN. CODE ANN. § 70-328(a) (Repl. 1976).
392. 2 Tenn. Ch. App. 132 (1901).
170
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393. American Association, Inc. v. Eastern Kentucky Land Co., 2 Tenn.
Ch. App. 132, 173 (1901).
394. 93 F. Supp. 98 (E. D. Tenn. 1950).
395. Hurley v. American Enka Corp., 93 F. Supp. 98, 102 (E. D. Tenn. 1950).
396. 77 F.2d 601 (6th Cir. 1935).
397. Tallassee Power Co. v. Clark, 77 F.2d 601, 604 (6th Cir. 1935).
398. Ill Tenn. 668, 69 S.W. 782 (1902).
399. 108 Tenn. 130, 65 S.W. 868 (1901).
400. Cox v. Howell, 108 Tenn. 130, 136-137, 65 S.W. 868, 869 (1901).
401. Smelcer v. Rippetoe, 24 Tenn. App. 516, 147 S.W.2d 109 (1940); De Kalb
County v. Tennessee Electric Power Co., 17 Tenn. App. 343, 67 S.W.2d
555 (1933).
402. Spencer v. O'Brien, 24 Tenn. App. 429, 158 S.W.2d 445 (1941); Chicago,
Memphis & Gulf Railroad Co. v. Wheeler, 1 Tenn. App. 100 (1925).
403. 8 Tenn. App. 396 (1928).
404. Tennessee Electric Power Co. v. Robinson, 8 Tenn. App. 396, 398 (1928).
405. 113 Tenn. 331, 83 S.W. 658 (1904).
406. Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 367, 83
S.W. 658, 667 (1904).
407. 12 Tenn. App. 496 (1930).
408. Sumner v. O'Dell, 12 Tenn. App. 496, 498 (1930).
409. 117 Tenn. 180, 100 S.W. 116 (1907).
410. Woodlawn Memorial Park of Nashville, Inc. v. Louisville & Nashville
Railroad Co., Inc., 377 F. Supp. 932 (M.D. Tenn. 1972); Slatten v.
Mitchell, 124 S.W.2d 310 (Tenn. Ct. App. 1938).
411. Garland v. Aurin, 103 Tenn. 555, 53 S.W. 940 (1899); Talley v. Baker 3
Tenn. App. 321 (1926).
412. 147 Tenn. 1, 244 S.W. 483 (1922).
413. Davis v. Louisville & Nashville Railroad Co., 147 Tenn. 1, 7 244 S W
483, 485 (1922). ' * *
414. Talley v. Baker, 3 Tenn. App. 321 (1926); Mayor of Sweetwater v. Pate,
171
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59 S.W. 480 (Tenn. Ct. Ch. App. 1900).
415. Louisville & Nashville Railroad Co. v. Hays, 79 Tenn. 382 (1883).
416. 29 Tenn. App. 282, 203 S.W.2d 178 (1946).
417. Slatten v. Mitchell, 124 S.W.2d 310 (Tenn. Ct. App. 1938).
418. Burton v. City of Chattanooga, 75 Tenn. 739 (1881).
419. 114 Tenn. 579, 86 S.W. 1074 (1905).
420. 59 S.W. 480 (Tenn. Ct. Ch. App. 1900).
421. Slatten v. Mitchell, 124 S.W.2d 310, 316 (Tenn. Ct. App. 1938).
422. 19 Tenn. App. 446, 89 S.W.2d 889 (1935).
423. Nashville, Chattanooga & St. Louis Railway v. Rickert, 19 Tenn. App
446, 457, 89 S.W.2d 889, 896 (1935).
424. 123 F.2d 884 (6th Cir. 1941).
425. 146 Tenn. 550, 243 S.W. 304 (1922).
426. Love v. Nashville Agricultural and Normal Institute, 146 Tenn. 550,
562, 243 S.W. 304, 308 (1922).
427. State ex vel. Chain O1 Lakes Protective Association v. Moses, 53 Wis.
2d 579, 193 N.W.2d 708 (1972).
428. Konrad v. State, 4 Wis, 2d 532, 91 N.W.2d 203 (1958).
429. Lawson v. Mowry, 52 Wis. 219, 9 N.W. 280 (1881).
430. Timm v. Bear, 29 Wis. 254, 265 (1871).
431. A. C. Conn Co. v. Little Saumico Lumber Manufacturing Co., 74 Wis. 652,
43 N.W. 660 (1889).
432. Town of Lawrence v. American Writing Paper Co., 144 Wis. 556, 128 N.W.
440 (1910).
433. Hazeltine v. Case, 46 Wis. 391, 1 N.W. 66 (1879).
434. Coldwell v. Sanderson, 69 Wis. 52, 28 N.W. 232, 33 N.W. 591 (1887).
435. Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252, 38
N.W.2d 712 (1949).
436. Ellis, H. H., J. H. Beuscher, C. D. Howard and J. P. DeBraal. Water-Use
Law and Administration in Wisconsin, § 3.07(b), p. 32. Department of
172
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Extension Law, University of Wisconsin, Madison, Wisconsin, 1970.
437. Jost v. Dairyland Power Cooperative, 45 Wis. 2d 164, 172 N.W.2d 647
(1969).
438. Stadler v. Grieben, 61 Wis. 500, 21 N.W. 629 (1884).
439. Middlestadt v. Waupaca Starch & Potato Co., 93 Wis. 1, 4, 66 N.W. 713,
714 (1896).
440. Briggson v. City of Viroqua, 264 Wis. 47, 58 N.W.2d 546 (1953); Muscoda
Bridge Co. v. Worden-Allen Co., 196 Wis. 76, 219 N.W. 428 (1928);
Bright v. City of Superior, 163 Wis. 1, 156 N.W. 600 (1916).
441. 5 Wis. 2d 167, 92 N.W.2d 241 (1958).
442. Wisconsin Power & Light Co. v. Public Service Commission, 5 Wis. 2d 167,
177, 92 N.W.2d 241, 247 (1958).
443. WIS. STAT. § 31.02(1) (1975).
444. WIS. STAT. § 30.12(1) (1975). "
445. WIS. STAT. § 30.195(1) (1975).
446. WIS. STAT. § 30.19(1)(a) (1975).
447. WIS. STAT. §§ 31.04, .23(1) (1975).
448. WIS. STAT. § 107.05(2) (1975).
449. WIS. STAT. § 30.18(1) (1975).
450. WIS. STAT. § 30.18(1)(a) (1975).
451. WIS. STAT. § 30.18(l)(b) (1975).
452. WIS. STAT. § 30*18(2) (1975).
453. Wisconsin Attorney General's Opinions, Volume 39, p. 567. Madison,
Wisconsin, 1950.
454. 64 Wis. 2d 6, 218 N.W.2d 734 (1974).
455. Omernik v. State, 64 Wis. 2d 6, 21, 218 N.W.2d 734, 743 (1974).
456. 71 Wis. 2d 370, 238 N.W.2d 114 (1976).
457. Omernick v. Department of Natural Resources, 71 Wis. 2d 370, 372, 238
N.W.2d 114, 115 (1976).
458. Omernick v. Department of Natural Resources, 71 Wis. 2d 370, 373-374,
173
-------
238 N.W.2d 114, 116 (1976).
459. Wis. Admin. Code ch. NR 214.
460. Wls. Admin. Code ch. NR 214, tables 2-4.
461. Thompson v. Public Service Commission, 241 Wis. 243, 248, 5 N.W.2d 769,
771 (1942).
462. Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252, 257, 38
N.W.2d 712, 714 (1949).
463. Fryer v. Warne, 29 Wis. 511 (1872); Hoyt v. City of Hudson, 27 Wis. 656
(1871); Pettigrew v. Village of Evansville, 25 Wis. 223 (1870).
464. 66 Wis. 2d 1, 224 N.W.2d 407 (1974).
465. State v. Deetz, 66 Wis. 2d 1, 20-21, 224 N.W.2d 407, 417 (1974).
466. Wis. Admin. Code §§ NR 214.07(6), (17)(a).
467. Wis. Admin. Code §§ NR 214.07(4), (5).
468. 117 Wis. 355, 94 N.W. 354 (1903).
469. 1901 Wis. Laws, ch. 354.
470. 63 Wis. 2d 278, 217 N.W.2d 339 (1974), rehearing denied, 219 N.W.2d 308
(1974).
471. State v. Michels Pipeline Construction, Inc., 63 Wis. 2d 278 303 217
N.W.2d 339, 351 (1974).
472. 171 Wis. 291, 177 N.W. 26 (1920).
473. 220 Wis. 254, 263 N.W. 568 (1935), rehearing denied, 265 N.W. 67 (1936).
474. Enders v. Sinclair Refining Co., 220 Wis. 254, 263, 263 N.W. 568, 572
(1935).
475. Wis. Admin. Code § NR 214.07(7).
476. Wis. Admin. Code § NR 214.07(9).
477. Wis. Admin. Code § NR 214.07(1).
478. Wis. Admin. Code §§ NR 214.07(14), (15), .08.
479. WIS. STAT. § 147.26(1)(a) (1975).
480. WIS. STAT. § 147.26(2)(b) (1975).
174
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481. Wis. Admin. Code § NR 214.02(1).
482. Wis. Admin. Code § NR 214.03(1).
483. Wis. Admin. Code §§ NR 214.03(5), .07(1).
484. Wis. Admin. Code § NR 214.07(2).
485. Wis. Admin. Code § NR 214.07(5).
486. Wis. Admin. Code § NR 214.07(8).
487. Wis. Admin. Code § NR 214.07(11).
488. Wis. Admin. Code § NR 214.07(12)(a).
489. Wis. Admin. Code § NR 214.12(b).
490. Wis. Admin. Code § NR 214.12(c).
491. Wis. Admin. Code § NR 214.07(13).
492. Wis. Admin. Code § NR 214.07(13)(a).
493. Wis. Admin. Code § NR 214.07(13)(b).
494. Wis. Admin. Code § NR 214.07(13)(c).
495. ARIZ. CONST, art. XVII, § 1; Brasher v. Gibson, 2 Ariz. App. 507, 410
P.2d 129 (1966); Howard v. Perrin, 8 Ariz. 347, 76 P. 460 (1904).
496. ARIZ. REV. STAT. ANN. § 45-101(A) (1956).
497. Bristor v. Cheatham, 75 Ariz. 227, 232, 255 P.2d 173, 177 (1953).
498. ARIZ. REV. STAT. ANN. § 45-102(A) (1956).
499. Arizona State Department of Health Services. Rules and Regulations for
Reclaimed Wastes, Art. 6, Pt. 4. Phoenix, Arizona, January 1972.
500. Southern Pacific Co. v. Proebstel, 61 Ariz. 412, 418, 150 P.2d 81, 83
(1944).
501. Maricopa County Municipal Water Conservation District No. 1 v. South-
west Cotton Co., 39 Ariz. 65, 4 P.2d 369 (1931).
502. ARIZ. REV. STAT. ANN. § 45-141(A) (Supp. 1977-1978).
503. ARIZ. REV. STAT. ANN. § 45-142 (Supp. 1977-1978); Fourzan v. Curtis, 43
Ariz. 140, 29 P.2d 722 (1934); Salt River Valley Users' Association v.
Kovacovich, 3 Ariz. App. 28, 411 P.2d 201 (1966).
175
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504. ARIZ. REV. STAT. ANN. § 45-147(A) (Supp. 1977-1978).
505. ARIZ. REV. STAT. ANN. § 45-147(B) (Supp. 1977-1978).
506. Clark, R. E. Water and Water Rights, Volume 5, f 408.4, p. 96. Allen
Smith Co., Indianapolis, Indiana, 1972.
507. ARIZ. REV. STAT. ANN. § 45-143(A) (1956).
508. ARIZ. REV. STAT. ANN. § 45-143(B) (1956).
509. ARIZ. REV. STAT. ANN. § 45-148 (1956).
510. ARIZ. REV. STAT. ANN. § 45-150 (Supp. 1977-1978).
511. Clark, R. E., supra note 506, § 409.3, p. 114.
512. Brasher v. Gibson, 2 Ariz. App. 91, 406 P.2d 441 (1965).
513. ARIZ. REV. STAT. ANN. § 45-144 (1956).
514. Beach v. Superior Court of Apache County, 64 Ariz. 375, 173 P.2d 79
(1946).
515. Zannaras v. Bagdad Copper Corp., 260 F.2d 575 (9th Cir. 1958).
516. Pima Farms Co. v. Proctor, 30 Ariz. 96, 245 P. 369 (1926).
517. Clough v. Wing, 2 Ariz. 371, 17 P. 453 (1888).
518. Wall v. Superior Court of Yavapai County, 53 Ariz. 344, 89 P 2d 624
(1939).
519. ARIZ. REV. STAT. ANN. S 45-109. (1956).
520. Arizona Copper Co., Ltd. v. Gillespie, 12 Ariz. 190, 100 P. 465 (1909)
aff'd, 230 U.S. 46 (1913).
521. ARIZ. REV. STAT. ANN. $ 45-175 (1956).
522. Gillespie Land & Irrigation Co. v. Buckeye Irrigation Co., 75 Ariz. 377
384, 257 P.2d 393, 397-398 (1953).
523. ARIZ. REV. STAT. ANN. $ 45-172 (Supp. 1977-1978).
524. Fritsche v. Hudspeth, 76 Ariz. 202, 262 P.2d 243 (1953).
525. Arizona State Department of Health Services, eupva note 499, $ 6-4-2;
Stevens, R. M., supra note 29, pp. 232-233; Sullivan, R. H., M. M. Cohn,
and S. S. Baxter, eupra note 31, pp. 112-113.
526. 16 Ariz. App. 201, 492 P.2d 450 (1972).
176
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527. ARIZ. REV. STAT. ANN. § 45-101 (1956).
528. Clark, R. £., supra note 506, § 406, p. 52, note 49.
529. Roosevelt Irrigation District v. Beardsley Land and Investment Co., 36
Ariz. 65, 71, 282 P. 937, 939 (1929).
530. Maricopa County Municipal Water Conservation District No. 1 v. Warford,
69 Ariz. 1, 206 P.2d 1168 (1949).
531. Diedrich v. Farnsworth, 3 Ariz. App. 264, 273, 413 P.2d 774, 783 (1966).
532. Lambeye v. Garcia, 18 Ariz. 178, 182, 157 P. 977, 978-979 (1916).
533. Santa Cruz Reservoir Co. v. Rameriz, 16 Ariz. 64, 70-71, 141 P. 120,
123 (1914).
534. Salt River Valley Water Users' Association v. Kovacovich, 3 Ariz. App.
28, 411 P.2d 201 (1966).
535. Clark, R. E., supra note 244, § 215, p. 123.
536. Arizona State Department of Health Services, supra note 499, § 6-4-2.
537. ARIZ. REV. STAT. ANN. § 45-301(5) (Supp. 1977-1978).
538. England v. Ally Ong Hing, 8 Ariz. App. 374, 446 P.2d 480 (1968),
vacated on other grounds, 105 Ariz. 65, 459 P.2d 498 (1969).
539. State ex rel. Morrison v. Anway, 87 Ariz. 206, 349 P.2d 774 (1960).
540. ARIZ. REV. STAT. ANN. § 45-301(2) (Supp. 1977-1978).
541. ARIZ. REV. STAT. ANN. § 45-308(B) (Supp. 1977-1978).
542. ARIZ. REV. STAT. ANN. § 45-313(3) (Supp. 1977-1978).
543. Lassen v. Harpham, 2 Ariz. App. 478, 410 P.2d 100 (1966).
544. Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173 (1953).
545. ARIZ. REV. STAT. ANN. § 45-301(6) (Supp. 1977-1978).
546. 106 Ariz. 506, 479 P.2d 169 (1970).
547. Jarvis v. State Land Department, 106 Ariz. 506, 510-511, 479 P.2d 169,
173-174 (1970).
548. Note. Reasonable Use of Percolating Groundwater. Univ. of Arizona Law
Rev., 13(2): 490-506, p. 504 (1971).
549. Wiel, S. C. Water Rights in the Western States, Volume II, 3§ 1047,
177
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1058-1061. Bancroft-Whitney Co., San Francisco, California, 3d ed.,
1911.
550. Arizona State Department of Health Services, supra note 499, § 6-4-2,
Reg. 6-4-2.1.
551. Id., § 6-4-2, Reg. 6-4-2.2(A).
552. Id., I 6-4-2, Reg. 6-4-2.3(A).
553. CAL. CONST, art. XVI, § 3; Meridian, Ltd. v. San Francisco, 13 Cal. 2d
424, 90 P.2d 537, 91 P.2d 105 (1939); Miller & Lux v. San Joaquin Light
& Power Corp., 8 Cal. 2d 427, 65 P.2d 1289 (1937).
554. Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 276 P. 1017 (1929).
555. Copeland v. Fairview Land and Water Co., 165 Cal. 148, 131 P. 119
(1913); Fudickar v. East Riverside Irrigation District, 109 Cal. 29,
41 P. 1024 (1895).
556. Duckworth v. Wataonville Water and Light Co., 150 Cal. 520, 89 P. 338
(1907).
557. South Santa Clara Valley Water Conservation District v. Johnson, 231
Cal. App. 2d 388, 41 Cal. Rptr. 846 (1964).
558. United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950); Smith v.
Los Angeles, 66 Cal. App. 2d 562, 153 P.2d 69 (1944).
559. Costello v. Bowen, 80 Cal. App. 2d 621, 182 P.2d 615 (1947); McManus
v. Otis, 61 Cal. App. 2d 432, 143 P.2d 380 (1943).
560. Duckworth v. Watsonville Water and Light Co., 150 Cal. 520, 89 P. 338
(1907).
561. Turner v. East Side Canal and Irrigation Co., 168 Cal. 103, 142 P. 69
(1914).
562. Anderson v. Bassman, 140 F. 14 (9th Cir. 1905); Gould v. Eaton, 117
Cal. 539, 49 P. 577 (1897); Carlsbad Mutual Water Co. v. San Luis Rey
Development Co'., 78 Cal. App. 2d 900, 178 P.2d 844 (1947).
563. Crum v. Mt. Shasta Power Corp., 220 Cal. 295, 30 P.2d 30 (1934).
564. Half Moon Bay Land Co. v. Cowell, 173 Cal. 543, 160 P. 675 (1916);
Gould v. Eaton, 117 Cal. 539, 49 P. 577 (1897).
565. Carlsbad Mutual Water Co. v. San Luis Rey Development Co., 78 Cal. App.
2d 900, 178 P.2d 844 (1947).
566. Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607
(1926); Southern California Investment Co. v. Wilshire, 144 Cal. 68,
178
-------
77 P. 767 (1904).
567. Drake v. Tucker, 43 Cal. App. 53, 184 P. 502 (1919); Duckworth v.
Watsonville Water and Light Co., 150 Cal. 520, 89 P. 338 (1907).
568. Smith v. Corbit, 116 Cal. 587, 48 P. 725 (1897); Harris v. Harrison, 93
Cal. 676, 29 P. 325 (1892); Drake v. Tucker, 43 Cal. App. 53, 184 P.
502 (1919).
H
569. Moore v. California Oregon Power Co., 22 Cal. 2d 725, 140 P.2d 798
(1943); Miller & Lux, Inc. v. San Joaquin Light & Power Corp., 8 Cal.
2d 427, 65 P.2d 1289 (1937); City of Elsinore v. Temescal Water Co., 36
Cal. App. 2d 116, 97 P.2d 274 (1939).
570. CAL. CONST, art. XIV, § 3.
571. Gin S. Chow v. Santa Barbara, 217 Cal. 673, 22 P.2d 5 (1933).
572. Dripps v. Allison's Mines Co., 45 Cal. App. 95, 99, 187 P. 448 (1919).
573. Haight v. Costanich, 184 Cal. 426, 194 P. 26 (1920); Campbell v.Ingram,
37 Cal, App. 728, 174 P. 366 (1918).
574. CAL. WATER CODE § 1262 (West 1971); Cal. Admin. Code, tit. 23, § 662;
Town of Antioch v. Williams Irrigation District, 188 Cal. 451, 205 P.
688 (1922); Campbell v. Ingram, 37 Cal. App. 728, 174 P. 366 (1918).
575. CAL. WATER CODE § 1265 (West 1971); Cal. Admin. Code, tit. 23, § 665;
Bear River and Auburn Water and Mining Co. v. New York Mining Co., 8
Cal. 327 (1857).
576. CAL. WATER CODE § 1264 (West 1971); Cal, Admin. Code, tit, 23, § 661;
Hanson v. McCue, 42 Cal. 303 (1871); Higgins v. Barker, 42 Cal. 233
(1871).
577. CAL. WATER CODE §§ 1263, 1264, 1266 (West 1971); Cal. Admin. Code, tit.
23, §§ 663, 664, 666, 667.
578. Santa Paula Water Works v. Peralta, 113 Cal. 38, 45 P. 168 (1896); Hill
v. Newman, 5 Cal. 445 (1855).
579. City of Pasadena v. City of Alhambra, 33 Cal. 2d 908, 207 P.2d 17
(1949); Lux v. Haggin, 69 Cal. 255, 4 P. 919, 10 P. 674 (1886); Irwin
v. Phillips, 5 Cal. 140 (1855).
580. CAL. WATER CODE §§ 100, 174-188, 1050-1060, 1200-1801 (West 1971), as
amended* (West Supp. 1977).
581. United States v. Fallbrook Public Utility District, 165 F. Supp. 806
(S.D. Cal. 1958); Temescal Water Co. v. Department of Public Works, 44
Cal. 2d 90, 280 P.2d 1 (1955).
179
-------
582. GAL. WATER CODE §§ 1395-1398 (West 1971); Cal. Admin. Code, tit. 23,
§§ 776-777.
583. Sierra Land and Water Co. v. Cain Irrigation Co., 219 Cal. 82, 25 F.2d
223 (1933).
584. CAL. WATER CODE §§ 175, 179 (West 1971), as amended, (West Supp. 1977).
585. CAL. WATER CODE §§ 183-185, 1052, 1250-1252 (West 1971), as amended,
(West Supp. 1977).
586. Temescal Water Co. v. Department of Public Works, 44 Cal. 2d 90, 280
P.2d 1 (1955).
587. Barr v. Branstetter, 42 Cal. App. 725, 184 P. 409 (1919).
588. Haight v. Costanich, 184 Cal. 426, 194 P. 26 (1920).
589. Yuba River Power Co. v. Nevada Irrigation District, 207 Cal. 521, 279
P. 128 (1929).
590. Rickey Land and Cattle Co. v. Miller & Lux, 152 F. 11 (9th Cir. 1907).
591. Scott v. Fruit Growers Supply Co., 202 Cal. 47, 258 P. 1095 (1927).
592. Cal. Admin. Code, tit. 23, § 661.
593. Cal. Admin. Code, tit. 23, § 662; Broder v. Natoma Water and Mining Co.,
101 U.S. 274 (1879).
594. Cal. Admin. Code, tit. 23, § 665.
595. Hutchins. W. A. The California Law of Water Rights, p. 40. State of
California Printing Division, Sacramento, California, 1956.
596. City of Fresno v. California, 372 U.S. 627 (1963); Irwin v. Phillips,
5 Cal. 140 (1855).
597. Tulare Irrigation District v. Lindsay-Strathmore Irrigation District
3 Cal. 2d 489, 45 P.2d 972 (1935).
598. Carlsbad Mutual Water Co. v. San Luis Rey Development Co., 78 Cal. App.
2d 900, 912, 178 P.2d 844, 851 (1947).
599. Cal. Admin. Code, tit. 23, §§ 2510-2512.
600. Van Alstyne, A. Inverse Condemnation: Unintended Physical Damage.
Hastings Law J., 20(2): 431-516, p. 449, 1969.
601. Archer v. City of Los Angeles, 19 Cal. 2d 19, 119 P.2d 1 (1941); Kinyon,
S. V., and R. C. McClure. Interferences with Surface Waters. Univ. of
Minnesota Law Rev., 24(7): 891-939, 1940.
180
-------
602. 64 Cal. 2d 396, 412 P.2d 529 (1966).
603. Clark, R. E. Water and Water Rights, Volume 1, § 52.1(A), p. 306.
Allen Smith Co., Indianapolis, Indiana, 1967.
604. Steiger v. City of San Diego, 163 Cal. App. 2d 110, 329 P.2d 94 (1958);
Andrew Jergens Co. v. City of Los Angeles, 103 Cal. App. 2d 232, 229
P.2d 475 (1951).
605. Coombs v. Reynolds, 43 Cal. App. 656, 185 P. 877 (1919).
606. California Attorney General's Opinions, Volume 27, p. 182. Sacramento,
California.
607. Robinson v. Black Diamond Coal Co., 57 Cal. 412 (1881).
608. Prosser, W. L., supra note 243, § 89, pp. 591-594.
609. CAL. CONST, art I, § 14.
610. Pacific Gas and Electric Co. v. Scott, 10 Cal. 2d 581, 75 P.2d 1054
(1938); Dripps v. Allison's Mines Co., 45 Cal. App. 95, 187 P. 448
(1919).
611. Prosser, W. L., supra note 243, § 87, pp. 573-583.
612. Steiger v. San Diego, 163 Cal. App. 2d 110, 329 P.2d 94 (1958).
613. Kinyon, S. V., and R. C. McClure, supra note 601, pp. 913-914; Clark,
R. E., supra note 603, § 52.1(A), p. 302.
614. South Santa Clara Valley Water Conservation District v. Johnson, 231
Cal. App. 2d 388, 41 Cal. Rptr. 846 (1964).
615, Sheffet v. City of Los Angeles, 3 Cal. App. 3d 720, 84 Cal. Rptr. 11
(1970); Switzer v. Yunt, 5 Cal. App. 2d 71, 41 P.2d 974 (1935).
616. O'Hara v. Los Angeles County Flood Control District, 19 Cal. 2d 61, 119
P.2d 23 (1941); Callens v. County of Orange, 129 Cal. App. 2d 255, 276
P.2d 886 (1954).
617. Verdugo Canon Water Co. v. Verdugo, 152 Cal. 655, 93 P. 1021 (1908).
618. Rancho Santa Margarita v. Vail, 11 Cal. 2d 501, 555, 81 P.2d 533, 560
(1938).
619. Arroyo Ditch and Water Co. v. Baldwin, 155 Cal. 280, 100 P. 874 (1909);
Vineland Irrigation District v. Azusa Irrigating Co., 126 Cal. 486, 58
P. 1057 (1899).
620. City of Pasadena v. City of Alhambra, 33 Cal. 2d 908, 207 P.2d 17
(1949).
181
-------
621. Hudson v. Dailey, 156 Cal. 617, 105 P. 748 (1909).
622. Allen v. California Water and Telephone Co., 29 Cal. 2d 466, 176 F.2d
8 (1946).
623. 154 Cal. App. 2d 249, 316 P.2d 9 (1957).
624. Cal. Admin. Code, tit. 23, §§ 2520-2522, 2530-2533.
625. Stevens, R. M., supra note 29, p. 235.
626. CAL. WATER CODE §§ 13260-13270, 13374 (West 1971), as amended, (West
Supp. 1977); CAL. WATER CODE § 22178 (West Supp. 1977); Robie, R. B.
Water Pollution: An Affirmative Response by the California Legislature.
Univ. of the Pacific Law J., 1(1): 1-35, p. 17, 1970.
627. Cal. Admin. Code, tit. 23, §§ 2500 to 2555.
628. CAL. WATER CODE § 13050(d) (West 1971).
629. CAL. WATER CODE § 13260(a) (West 1971).
630. CAL. WATER CODE § 13263(a) (West 1971).
631. Cal. Admin. Code, tit. 23, § 2510.
632. Cal. Admin. Code, tit. 23, § 2511.
633. Cal. Admin, Code, tit. 23, §§ 2520-2522.
634. COLO. CONST, art. XVI, §§ 5, 6.
635. 56 Colo. 252, 271, 139 P. 2, 9 (1913).
636. Reagle v. Square S Land and Cattle Co., 133 Colo. 392, 296 P.2d 235
(1956); Hutchins, W. A. Water Rights Laws in the Nineteen Western
States - Volume I, p. 339. Miscel. Publ. No. 1206. U.S. Department
of Agriculture, Washington, D. C., 1971.
637. Trelease, F. J. Preferences to the Use of Water. Rocky Mountain Law
Rev., 27(2): 133-160, p. 133, 1955.
638. Clark, R. E., supra note 506, § 408.4, p. 96.
639. COLO. CONST, art XVI, § 6; COLO. REV. STAT. § 37-92-101 et seq.(1973),
as amended, (Supp. 1976); Archuleta v. Boulder and Weld County Ditch
Co., 118 Colo. 43, 192 P.2d 891 (1948); DeHaas v, Benesch, 116 Colo.
344, 181 P.2d 453 (1947).
640. Colorado River Water Conservation District v. Rocky Mountain Power Co.,
158 Colo. 331, 406 P.2d 798 (1965); Jefferson County v. Rocky Mountain
Water Co., 102 Colo. 351, 79 P.2d 373 (1938).
182
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641. Farmers Highline Canal and Reservoir Co. v. City of Golden, 129 Colo.
575, 272 P.2d 634 (1954).
642. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).
643. COLO. CONST, art. XVI, § 6.
644. Strickler v. Colorado Springs, 16 Colo. 61, 26 P. 313 (1891).
645. 9 Colo. App. 407, 48 P. 828 (1897).
646. Suffolk Gold Mining & Milling Co. v. San Miguel Consolidated Mining &
Milling Co., 9 Colo. App. 407, 417, 48 P. 828, 832 (1897).
647. Twin Lakes Reservoir and Canal Co. v. Sill, 104 Colo. 215, 89 P.2d 1012
(1939); Mack v. Town of Craig, 68 Colo. 337, 191 P. 101 (1920).
648. 163 Colo. 575, 431 P.2d 1007 (1967).
649. Hankins v. Borland, 163 Colo. 575, 580, 431 P.2d 1007, 1010 (1967).
650. Olney Springs Drainage District v. Auckland, 83 Colo. 510, 515-516,
267 P. 605, 607 (1928).
651. Debevtz v. New Brantner Extension Ditch Co. 78 Colo. 396, 241 P. 1111
(1925).
652. Safranek v. Town of Limon, 123 Colo. 330, 335, 228 P.2d 975, 977 (1951).
653. COLO. CONST, art. XVI § 5.
654. Cresson Consolidated Gold Mining & Milling Co. v. Whitten, 139 Colo.
273, 338 P.2d 278 (1959).
655. Comrie v. Sweet, 75 Colo. 199, 225 P. 214 (1924).
656. COLO. REV. STAT. § 35-49-101 et aeq. (1973).
657. COLO. REV. STAT. § 35-49-109 (1973).
658. 73 Colo. 554, 216 P. 707 (1923).
659. Bieser v. Stoddard, 73 Colo. 554, 564, 216 P. 707, 711 (1923).
660. Buckers Irrigation, Milling and Improvement Co. v. Farmers' Independent
Ditch Co., 31 Colo. 62, 70-71, 72 P. 49, 51 (1902).
661. COLO. REV. STAT. § 37-82-106 (1973).
662. Cornstock v. Ramsay, 55 Colo. 244, 133 P. 1107 (1913).
663. Webster v. Lomas, 112 Colo. 74, 145 P.2d 978 (1944).
183
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664. Clark, R. E., supra note 506, § 406, p. 56.
665. Water Supply and Storage Co. v. Larimer and Weld Reservoir Co., 25
Colo. 87, 94, 53 P. 386, 388 (1898).
666. Green Valley Ditch Co. v. Schneider, 50 Colo. 606, 115 P. 705 (1911).
667. Colorado Department of Health. Guidelines for Sludge Utilization on
Land. Denver, Colorado, draft, 1977.
668. Colorado Department of Health. Rules, Regulations and Standards for
Certain Domestic Sewage Treatment Systems and Other Non-Municipal
Systems Other Than Septic Tanks. Denver, Colorado, November 15, 1972.
669. Id., § IV(1)(a).
670. Id., § IV(l)(b).
671. Whitten v. Coit, 153 Colo. 157, 385 P.2d 131 (1963); Black v. Taylor,
128 Colo. 449, 264 P.2d 502 (1953).
672. Whitten v. Coit, 153 Colo. 157, 164-165, 385 P.2d 131, 135 (1963).
673. Whitten v. Coit, 153 Colo. 157, 173, 385 P.2d 131, 140 (1963).
674. COLO. REV. STAT. § 37-92-101 et seq. (1973), as amended, (Supp. 1976).
675. Buckers Irrigation, Milling and Improvement Co. v. Farmers' Independent
Ditch Co., 31 Colo. 62, 72 P. 49 (1902).
676. COLO. REV, STAT. § 37-92-502(2) (1973).
677. COLO. REV. STAT. § 37-90-103(6) (1973).
678. COLO. REV. STAT. § 37-90-101 et seq. (1973), as amended, (Supp. 1976).
679. COLO. REV. STAT. § 37-90-104 (1973).
680. Colorado Department of Health, supra note 667, SS IV to VI; Colorado
Department of Health, supra note 668, S IV(3).
681. Colorado Department of Health, supra note 668, S IV(l)(a).
682. Id., § IV(l)(b).
683. Colorado Department of Health, supra note 667, S VII(A) (1).
684, Letter. Richard Duty, Chief, Water Pollution Control, Division of
Environment, Kansas Department of Health and Environment, Topeka,
Kansas, February 10, 1976.
685. 18 Kan. 24 (1877).
184
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686. Shamleffer v. Council Grove Peerless Mill. Co., 18 Kan. 24, 31 (1877).
687. 25 Kan. 410 (1881).
688. City of Emporia v. Soden, 25 Kan. 410, 421 (1881).
689. 1945 Kan. Sess. Laws, ch. 390, as amended by, 1957 Kan. Sess. Laws, ch.
539, 1973 Kan. Sess. Laws, ch. 414, § 1, 1976 Kan. Sess. Laws, ch. 435,
§ 1; KAN. STAT. ANN. § 82a-701 et aeq. (1977).
690. 1886 Kan. Sess. Laws, ch. 115.
691. 1917 Kan. Sess. Laws, ch. 172.
692. 1927 Kan. Sess. Laws, ch. 293.
693. Frizell v. Bindley, 144 Kan. 84, 58 P.2d 95 (1936).
694. 1941 Kan. Sess. Laws, ch. 261.
695. 158 Kan. 603, 149 P.2d 604 (1944).
696. State ex rel, Emery v. Knapp, 167 Kan. 546, 551, 207 P.2d 440, 445
(1949).
697. State ex vel. Emery v. Knapp, 167 Kan. 546, 207 P.2d 440 (1949).
698. KAN. STAT. ANN. § 82a-702 (1977).
699. KAN. STAT. ANN. § 82a-703 (1977).
700. KAN. STAT. ANN. § 82a-701(d) (1977).
701. KAN. STAT. ANN. § 82a-705a (1977).
702. KAN. STAT. ANN. § 82a-705 (1977).
703. KAN. STAT. ANN. § 82a-701(b) (1977).
704. KAN. STAT. ANN. § 82a-706 (1977).
705. KAN. STAT. ANN. § 82a-706a (1977).
706. KAN. STAT. ANN. § 82a-711a (1977).
707. KAN. STAT. ANN. § 82a-716 (1977).
708. Texas Department of Health Resources and Texas Water Quality Board.
Design Criteria for Sewerage Systems. Austin, Texas, undated.
709. Id., Appendix B, § A, p. 49.
185
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710. Letter. Ralph E. Reed, Chief, Municipal Branch, Central Operations
Division, Texas Water Quality Board, Austin, Texas, February 24, 1976.
711. Texas Department of Health Resources, supra note 708, Appendix B, § B,
pp. 49-51.
712. TEXAS WATER CODE ANN. tit. 1, S 1.001 et aeq. (Veraon 1972), as emended,
(Vernon Supp. 1978).
713. TEXAS WATER CODE ANN. tit. 2, § 21.001 (Vemon 1972), as amended,
(Vernon Supp. 1978).
714. TEXAS WATER CODE ANN. tit. 2, § 26.027(a) (Vernon Supp. 1978).
715. TEXAS WATER CODE ANN. tit. 2, §§ 26.121(a), .123(a) (Vernon Supp. 1978).
716. TEXAS WATER CODE ANN. tit. 2, S 26.001(5) (Vernon Supp. 1978).
717. TEXAS WATER CODE ANN. tit. 2, S 26.001(8) (Vernon Supp. 1978).
718. TEXAS WATER CODE ANN. tit. 2, § 26.001(17) (Vernon Supp. 1978).
719. TEXAS WATER CODE ANN. tit. 2, § 26.001(20) (Vernon Supp. 1978).
720. TEXAS WATER CODE ANN. tit. 2, S 26.032 (Vernon Supp. 1978).
721. Trelease, F. J. Coordination of Riparian and Appropriative Rights to
the Use of Water. Univ. of Texas Law Rev., 33(1): 24-69, 1954.
722. TEXAS WATER CODE ANN. tit. 2, S 11.086 (Vernon Supp. 1978).
723. Carr, W. A. Diffused Surface Water in Texas. Baylor Univ. Law Rev.,
10(1): 65-75, p. 69, 1958.
724. 128 Tex. 155, 96 S.W.2d 221 (1936).
725. National Auduboh Society, Inc. v. Johnson, 317 F. Supp. 1330 (S.D. Tex.
1970).
726. City of Corpus Christi v. City of Pleasanton, 154 Tex. 289, 276 S.W.2d
798 (1955).
727. Davis, P. N. Groundwater Pollution: Case Law Theories for Relief.
Univ. of Missouri Law Rev., 39(2): 117-163, p. 124, 1974.
728. Beaty v. City of Abilene, 458 S.W.2d 496 (Tex. Civ. App. 1970).
186
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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 onwership
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 watercourses. 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, un-
diminished 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, however, spec-
ify that artificial waterways can acquire the status of natural water-
courses 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 tent is used interchangeably with
"groundwater" and has no independent meaning. A few states, especially
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."
187
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reasonable use: A branch of the riparian theory of rights to water in nat-
ural watercourses. Under the reasonable use theory, a riparian land-
owner 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. Generally,
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 fre-
quently stated criteria of having a definite course or channel, a sub-
stantial current, a definite source of supply, and an outlet into
another body of water.
188
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TECHNICAL REPORT DATA
(Please read Instructions on the reverse before completing)
1. REPORT NO.
EPA-600/2-78-175
3. RECIPIENT'S ACCESSION NO.
4. TITLE AND SUBTITLE
LAND APPLICATION OF WASTEWATER AND STATE WATER LAW:
STATE ANALYSES—Volume II
5. REPORT DATE
August 1978 issuing date
6. PERFORMING ORGANIZATION CODE
7. AUTHOR(S)
Donald W. Large
8. PERFORMING ORGANIZATION REPORT NO
9. PERFORMING ORGANIZATION NAME AND ADDRESS
University of Wisconsin Law School
Madison, Wisconsin 53706
(In cooperation with Economics, Statistics, and Co-
operatives Service. U.S. Department of Agriculture)
10. PROGRAM ELEMENT NO.
1BC611
11. CONTRACT/GRANT NO.
EPA-IAG-D5-0799
^t^fWlMSORING AGENCY NAME AND ADDBESS
Robert S. Kerr Environmental Research Laboratory
Office of Research and Development
U. S. Environmental Protection Agency
Ada, Oklahoma 74820
13. TYPE OF REPORT AND PERIOD COVERED
Final
14. SPONSORING AGENCY CODE
EPA/600/15
15. SUPPLEMENTARY NOTES
Project Officer: Curtis C. Harlin, Jr., Wastewater Mngmnt,
74820. (Volume I--EPA-600/2-77-232)
Branch, RSKERL, Ada, OK
p 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. 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.
7.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
b.lDENTIFIERS/OPEN ENDED TERMS C. COSATI Field/Group
Water law
Water policy
Judicial decisions
Legal aspects
05D
°- "'3TRIBUI ION STATEMENT
RELEASE TO PUBLIC
"""*•"••••••———__
EpA Form 2220-1 (9-73)
19. SECURITY CLASS (This Report)
TTNflLASSIFIED
21. NO. OF PAGES
197
20. SECURITY CLASS (This page)
mir-T
22. PRICE
189
U. S. GOVERNMENT PRINTING OFFICE: 1978-757-140/1427 Region No. 5-11
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