Legal and Administrative Systems for Water Allocation and Management Proceedings of a regional conference held April 19-20, 1978 at Virginia Polytechnic Institute and State University, Blacksburg, Virginia Edited by William E. Cox Sponsored by South Atlantic Gulf Region Water Resources Research Institutes and State Water Agencies LEGAL AND ADMINISTRATIVE SYSTEMS FOR WATER ALLOCATION AND MANAGEMENT Proceedings of a Southeast Regional Conference April 19-20, 1978 at Virginia Polytechnic Institute and State University Sponsored by Water Research Institutes and Water Resource Agencies of the Southeast States Edited by William E. Cox Assistant Professor Published by Virginia Water Resources Research Center Virginia Polytechnic Institute and State University Blacksburg, Virginia 24061 L.L) Acknowledgments c The workshop was co-chaired by William R. Walker and William E. Cox of the Vir­ ginia Water Resources Research Center. Regional coordination was provided by David H. Howells of North Carolina State University. Preliminary planning was conducted by the water research institutes and the state water reso~rce agen­ cies in the Southeast. Individuals in addition to those already mentioned with specific input into the planning and conduct of the workshop included Marvin T. Bond, Water Resources Research Institute (WRRI), Mississippi; William F. Brandes, Water Resources Research Center (WRRC), Tennessee; Neil S. Grigg, WRRI, North Carolina; Bernd Kahn, Environmental Resources Center, Georgia; James T. Ligon, WRRI, South Carolina; William H. Morgan, WRRC, Florida; and James C. War­ man, WRRI, Alabama. Workshop arrangements were handled by Sandy K. Birch of the Virginia Water Center and Richard F. Harshberger of the Center for Continuing Education, Virginia Polytechnic Institute and State University. The workshop proceedings were produced at the Virginia WRRC. Clara B. Cox typed the final manuscript, Anne T. Akers proofed copy, Carol L. Marlowe and Patricia A. Nickinson provided transcription of taped discussions, and Phyllis B. Mullins was responsible for layout composition. Funding for the worksho~;.~:was provided by a grant from the Office of Water Re­ search and Technology, y; s. Department of the Interior. ,. ,.; ~··. ' ii Foreword The Southeast Conference on Legal and Administrative Systems for Water Alloca­ tion and Management was the first of a series of workshops designed to identify and prioritize water resource problems, research needs, and technology transfer needs in the southeastern United States. This workshop series is a cooperative effort planned jointly by the water resources research institutes and the state water resource agencies in the states of Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia. Although not necessar­ ily an exclusive list, other topics proposed for the series include water supply augmentation and conservation; urban stormwater, flood, and sediment control; and control of non-point sources of pollution. The water supply augmentation and conservation workshop has been scheduled for November 8 and 9, 1978, in Atlanta, Georgia. The cooperative approach involving water research institutes and water manage­ ment agencies is being utilized in these workshops in an attempt to provide interaction among the research and management interests who often view water problems from different perspectives. It was anticipated that this integrated approach would be more effective in identifying priority research needs and in creating mechanisms for enhancing the transfer of research findings to the potential user. The absence of adequate mechanisms for full utilization of research results in the solution of existing problems traditionally has consti ­ tuted a basic obstacle to improved water resource management. Direct involve­ ment of management agency personnel in the identification of research needs and formulation of proposed actions is a potentially viable method of correcting this deficiency. Although water problems and existing management institutions vary substantially among the southeastern states, this series of workshops was based on the belief that sufficient connnonality of problems and interests exist to make joint con­ sideration of the issues desirable. The specific set of water management prob­ lems and institutions of each state are unique, but certain individual problems are shared by two or more states in some situations, and certain elements of institutional structure are transferable to some extent. Thus the regional approach potentially appears to be more effective than individual consideration of water resource problems by the several southeastern states. The fact that the first of these regional workshops was devoted to the subject of legal and administrative systems for water allocation and management may at first appear unusual. The southeast region traditionally has been viewed as a water-abundant area. It is true that water in this area is plentiful from the perspective of a simple comparison of total supply and total use, but local and regional shortages are not uncommon in most of the southeastern states. The fact that population is concentrated in certain geographic areas rather than evenly distributed, together with the uneven distribution of rainfall from year to year and within a given year, creates shortages in a general atmosphere of abundance. Federal initiatives in water quality management and other areas of environmental protection have encouraged development of state iii law and administrative systems in these areas, but the federal government has not been actively involved in supply management. Thus state law in many cases remains at a low level of development, and some of the states may be ill ­ equipped to handle emerging water allocation and management problems. This workshop represents an attempt to determine the adequacy of existing state water law and supporting administrative machinery under current conditions of water supply and demand. These proceedings contain the full text of the individual presentat~ons from each state, including questions and answers. Although there is some variation in format, in general there are three papers from each state. The first is an analysis of basic state water law. The second focuses on the administrative framework for water resources management. The third paper generally consists of a response to the first two papers and reflects the perspective of a state water management agency. The conference papers are also being prepared in summary form for wider distri ­ bution than the proceedings. This condensed version will emphasize conclusions and recommendations and should be of value to water resource decision-makers throughout the region. William E. Cox Virginia Water Resources Research Center Blacksburg, Virginia August, 1978 iv Contents Acknowledgments ii Foreword iii Contents v ALABAMA "Alabama Water Law" . . 2 Larry Putt Samford University "Administrative Systems in Alabama" . . . . . . . . . • . . . . . . . . . . . 9 David M. Grubbs University of Alabama "Alabama State Agency Comments" . . . . Henry H. Caddell Alabama Attorney General's Office "Florida Water Law" . . . . Frank. E. Maloney University of Florida FLORIDA "Administrative Systems for Water Management in Florida" John M. DeGrove Florida Atlantic and Florida International Universities "Florida State Agency Comments" . John C. Bottcher Florida Department of Environmental Regulation Florida Questions and Answers • . GEORGIA 13 22 68 92 98 "Water Law _in Georgia" Robert S. Bomar . . . . . . . . . . . . . . . . 104 Georgia Department of Law "Alternatives for Managing Georgia's Water Resources" ........... 123 Jackie Sellers University of Georgia v "Management of Georgia's Waters" J. Leonard Ledbetter . . . . . . . . . . . . . . . 142 Georgia Department of Natural Resources MISSISSIPPI "The Water Laws of Mississippi" . . . . . . . . . . . . . . . . . . . . . . 160 Jack W. Pepper Mississippi Board of Water Conunissioners NORTH CAROLINA "Some Current Legal Issues in North Carolina Concerning Diversion of Water for Public Water Supplies and Related Matters" . . . . . . Milton S. Heath, Jr. University of North Carolina at Chapel Hill "The Administrative System for Water Management . . . . . . . . . . 168 Including Water Allocation in North Carolina" ............... 194 Maynard M. Huf schmidt University of North Carolina "North Carolina State Agency Conunents~' A.F. McRorie North Carolina Department of Natural Resources and Community Development "North Carolina State Agency Comments" . . . . . . John D. Wray North Carolina Department of Natural Resources and Community Development "Some Aspects of Legal and Administrative Systems . . . . . . . . . .· . . 222 . . . 226 for Water Allocation and Management in . North Carolina" .......... 230 John N. Morris North Carolina Department of Natural Resources and Conununity Development SOUTH CAROLINA "Water Law in South Carolina" . • • • • .• • • • • • • • • • 236 William C. Moser South Carolina Water Resources Commission "Administrative Systems for Water Allocation, Use and Management in South Carolina" . . . . . . . . . . . . . . . . . . . 264 Charles H. Randall, Jr. University of South Carolina vi TENNESSEE "Tennessee Water Law Problems" Vincent A. Sikora • • • • • • • • • • • • • • • • • • • 280 East Tennessee State University "Tennessee's Administrative Systems for Water Allocation and Management" William F. Brandes • • • • • • • • • • • • • • 2 9 3 Tennessee Water Resources Research Center VIRGINIA "Virginia Water Law: A Functional Analysis with Respect to Quantity Management" . . William E. Cox Virginia Polytechnic Institute and State University • • • • • • • • • 300 "The Administrative System for Water Resources in Virginia" . . . . . . . . 338 Denis J. Brion College of William and Mary "Water Supply Planning--Virginia's Laws and Progress" ........... 345 R.V. Davis State Water Control Board BANQUET ADDRESSES "Water Allocation and Management in Mississippi" . . . . . . . . . . . . . 356 Sam Thompson Office of Senator James 0. Eastland United States Senate "Maryland's Water Allocation Program" .........•......... 361 Ernest C. Rebuck Water Resources Administration SUMMARY Summary Session: Closing Statement by David M. Grubbs of Alabama . David H. Howells: Summary of First Session Neil S. Grigg: Summary of Second Session . James C. Warman: Summary of Third Session William R. Walker: General Summary . . . . "Water Management Problems in the Southeast: Analysis of the Results of a Workshop Survey" William E. Cox . Virginia Polytechnic Institute and State University vii . 372 373 • 374 374 . 376 • • • • • • • • • 3 78 APPENDIX Conference Participants • • • • • • • • • • • • • • • • 386 viii Alabama 1 .. ALABAMA WATER LAW Larry Putt Cumberland School of Law Samford University Birmingham, Alabama Before discussing Alabama water law, which is relatively undeveloped, consider­ ation of certain general issues will provide the proper perspective. Starting from the concept of water rights as property, it must be realized that property rights confer upon individuals duties to and rights over resources and other individuals. Property rights convey rights to acquire or to capture the bene­ fits associated with resource use, or the disposition of those resources, and the duty to bear the burden of certain obligations artd costs. Economists often say that market activities evolve from and function within the institution of property rights. In turn, property rights directly affect the economic out­ come, pattern or resource use, quantity, and mix of goods and services. How­ ever, property rights do not determine economic outcome--they are mutually dependent. The institution of property, at least in theory, provides a kind of framework of predictability for resource use and access. This is accomplished by assigning two fundamental property rights to individual resource users: (1) the right to exclude intruders and (2) the right to transfer. All property institutions contain some aspects of those two fundamental rights. The exist ­ ence of these rights creates corresponding economic incentives. Economic in­ centives really revolve around the necessity for security and, of course, dependability. As long as any kind of property system in relation to resources involves dependability and security, the hope is that there will be investment in that resource and therefore a higher degree of utilization or efficiency. Of course property rights are not an i1lllllutable given; they are instruments of man, designed to facilitate and accomplish objectives. They can be changed through the operation of various governmental processes. One of the major reasons that a great number of previous water law studies have not been looked upon with great favor is because they have been so purely eco­ nomic or so purely engineering in their nature that they have avoided the necessity for integrating human values. Water is controlled by humans, it is used by humans, it is necessary for survival, and quite obviously human values ought to be integrated into it. Contemporary water problems in the East and South can be linked mostly to the fact that water doctrines have been espoused by courts and scholars, but actual water users and potential users are not induced by these doctrines in many cases to exercise more care or greater efficiency in the use of water resources. 2 There is an apparent failure in most of the systems to clearly identify avail ­ able remedies to injured parties. For instance, there are a great number of discussions about doctrines and how neatly they fit into certain little cubby­ holes, but the problem is the scarcity of discussion about available remedies to injured parties. If users or potential users do not have available to them clearly defined remedies, they are not likely to feel secure in their rights. In other words, a clear statement of water rights is not complete unless there is a clear identification of reliable remedies. Questions of economic effi ­ ciency have to be superimposed on this fact. In Alabama, there is very little coordination from the standpoint of law among the various water sources--surface water courses, diffused surface water, and ground water. Most of the law that exists is case law. The courts have not done a great legislative job in terms of social planning; they have planned by default--mostly as a matter of crisis management. In Alabama, the acquisition and utilization of water resources by private users for consumptive purposes have .not been subject to significant legislation. In water use conflicts, judicial decisions have controlled, and as a result, the water law in Alabama is a patchwork of decisions designed primarily to meet necessities of the moment. Even in default and even in the absence of formal planning, however, certain people benefit. The Alabama system is disorganized to some extent, but there have been any numbers of economic activities that have directly and signifi ­ cantly benefited from that disorganization. Under the present state of affairs, water rights are not clearly defined in Alabama. Although a number of cases have indicated, at least in the language of the decisions, that there is prop­ erty in water, all the espoused doctrines in the world do not substitute for what happened to those people who get hurt. And there are a lot of people that get hurt in Alabama as a result of water use by a very small group of users who have a virtual monopoly on the resource. Surf ace watercourses in Alabama are probably defined judicially about the way they are in other jurisdictions; they are found in natural depressions or chan­ nels consisting of well-defined beds and banks. Looking at the case decisions going back to the early 1800's, there are some general statements that can be made before getting to some of the specifics of the doctrines relating to water use. Most of these statements generally revolve around the concept of ripar­ ianism. Prior appropriation was rejected early in Alabama. tpe first observation is that only landowners whose lands actually touch the watercourse are entitled to the use of water. This fact has potential signif­ icance with reference to integration of land use planning. These rights may not be lost by mere nonuse. And new uses can arise at any time. Riparian owners cannot convey their rights · and must use the water only on the riparian land. This fact probably will, to a great extent, have an impact on water use in the future. Alabama courts as well as most of the southern and eastern courts have not clearly distinguished between the two traditional theories that fall within the riparian system--natural flow and reasonable use. They have not clearly recog­ nized the theories as being distinct and have not consistently followed either 3 one. They have used both, and in many cases have just mixed them together whenever the moment seemed to demand it. Probably the most fundamental observation that can be made regarding consump­ tive water law in Alabama is that it tends to revolve around a balancing of interests, with certain interests having preferences over others. Manufac­ turing and mining since the early 1900's have been the predominant economic activiti~s. Agriculture, domestic use, and municipal use of water ·certainly have been important; but the interesting thing is that the industrial and min­ ing activities have been the preferred uses. They have not always been the predominant economic interests in terms of influencing legislation, but yet they have occupied the position of favoritism in the courts. A look back to those early years provides a brief historical sketch. The earliest decisions that attempted to define these two traditional doctrines arose in the late 1800's. The City of Mobile, for instance, wished to take large amounts of water from a watercourse and use it for municipal purposes. This action was opposed by lower riparians who owned grist mills, which of course are not significant economic activities today, but at that time grist mills were extremely important. These lower riparians sued the City of Mobile to prevent it from diverting the water on the grounds that riparian owners are , entitled to the natural flow, undiminished in quality and quantity. The Su­ preme Court of Alabama agreed with the lower riparians, given ·the fact of the necessity for grist mills and other types of operations that require natural flow. The court in effect said that the City of Mobile was prevented from diverting water from the stream for domestic purposes. The court based its decision on the fact that the City of Mobile is a corporation without natural needs; therefore, grist mills under the circumstances were given a preference. This case indicated that the court favored the natural flow doctrine, and that seemed to be the law through the early 1900's. However, with the coming of mining and industrial activities, the situation changed. It became obvious that the philosophy was "industry needs to be sheltered." To encourage mining, the strict applications of natural flow doc­ trine was modified. The court adopted the concept that as long as the use of the water is reasonable, it can be diverted. Furthermore, · it can be polluted. An early decision very clearly said that it is all right to pollute Alabama water. Miners have to wash their ore. It does not help the ore extraction industry to impose liability for resulting pollution of the water. So the court began to shelter this activity and created a preference for pollution. The reasonable use doctrine therefore tended to create a dichotomy of law. The natural flow theory applied to everybody except riparian industries, and they are governed by some theory of reasonable use because they need to pollute the water. As long as their extraction operations are reasonable, and of course it is consistently held that mining is a reasonable activity, the use of the water in mining is a reasonable use of the water even if it has to be pol­ luted. These ideas still exist in law. An interesting thing is that the remedies applied were consistent with the philosophy that industry needs to be sheltered. For instance, the Alabama courts realized that there was a question of constitutionality if they simply ignored lower riparians so far as any available remedies; the solution to this 4 problem was to provide a remedy of monetary damages. To receive payment of damages, it was necessary to prove substantial injury. Some of the cases indi­ cated that substantial injury was almost total depletion of the stream, or reduction to almost nonuse of a stream because of pollution. Injunctive relief was very early rejected as a remedy, and for practical purposes riparian industry had the power of eminent domain. For · a considerable period of time, most of the litigation and the problems revolved around pollution. Most of the injured riparians were farmers watering livestock, but domestic uses and even municipalities were reduced to a lower priority. The courts consistently held to the idea that cities can put up with a little pollution. In fact, some of the cases clearly said that people who live in Alabama are just going to have to learn to put up with a few of the inconveniences of mining and manufacturing. One of the inconveniences was polluted water. Many mills were out of business three and four months out of the year because their machinery was so gummed up from the pollution they could not operate. That is one of those occurrences that the supreme court described on two different occasions as a "trifling inconvenience." About 20 years ago, some changes in the philosophy of the supreme court became evident. It began to decide that it ought to start thinking about people more, especially those who have to consume polluted water, and it began to hint that perhaps injunctive relief might be available again. The reality of the situa- . tion was that the court realized that some of the industry was well on its feet and did not need further sheltering. Furthermore, public pressure was beginning to increase to change past philosophies. Therefore, on a number of occasions, injunctive relief has been used as a remedy. A great rash of development in small power dams began in Alabama in 1974. Ala­ bama Power, which is a public utility, began to build a lot of small dams that tended to substantially affect lower riparians, primarily irrigation operations and some municipalities. It is interesting to note that the courts apparently decided that the state needs more power dams; to encourage their construction, they decided to ease up somewhere along the line on the harshness of the natu­ ral flow doctrine. So the courts began to talk about reasonable use again and said that not only is reasonable use good for polluters but it is also good for Alabama Power. In addition, a federal court decision in 1974 clearly said that Alabama should use the reasonable use doctrine with reference to lower ripar­ ians and dam construction. .Therefore, apparently what we have is a rather dis­ organized conclusion as to exactly what the law is, but it appears to be some form of reasonable use in which certain uses are preferred arbitrarily. The user of water or potential user of water pays his money and takes his chances because it is difficult to determine whether a particular use will fall into a preferred category in the future. So there is insecurity unless a use falls into one of about eight industrial categories that can be identified. With reference to diffused surface water, the biggest problem in Alabama has not been concern over appropriation; it has been over trying to get rid of it, especially under conditions of rapid development. There have been a number of cases dealing with the ability of developers to change the "natural flow" that might ·exist because of terrain. Once again there is no great consistency in the use of doctrines. At least two are available. One is called the civil rule, the other the common enemy rule. It seems that rural lands are subjected 5 to the civil rule, which means that the water is to flow naturally and that an upper landowner is not to collect that water and cast it upon a lower neighbor. There have been some decisions which have indicated that an upper landowner could collect the water and concentrate it, provided it was a reasonable con­ centration and did not significantly endanger or affect lower land use. In the case of land within municipalities, the law seems to be -that the landowner can take any action to protect himself from diffused surface water, including the building of barriers. This .is probably a result of the highly ordered changes in the artificial terrain which are occurring almost daily. Out of practical­ ity the courts appear to be leaving such decisions to the market. Transportation companies in Alabama have been subjected to a kind of strict liability. These two theories do not apply for instance to railroads. They have been fairly consistently held to a strict liability doctrine--that is to say if they cast water upon lower lands or in any way change the natural flow of that diffused surface water, they are strictly liable for related damages. With regard to ground water, Alabama has the presumption of percolating water. That presumption can be overcome through proof of the existence of an under­ ground stream. The courts have consistently determined that the same general rules apply to underground water that apply to surface watercourses. There _have been decisions which have determined for instance that mining operations are not liable for the reduction or even depletion and total destruction of surface watercourses, so long as they can show that their activity is reason­ able. Most of the ground water litigation has involved mining interference with the use of wells. There has been a consistent protection ·or ·sheltering of the industry. Although Alabama water law appears to be somewhat in the frontier stage as com­ pared to other jurisdictions, some conclusions can be drawn. The primary obser­ vation is that there really is very little concern over protection of riparian owners unless they happen to fall within the preferred class, and the preferred class obviously is quite arbitrary. It is not by public choice but is the result of pressure brought to bear by particular industries or activities. There is not a great deal of security or dependability in the law to those not members of that preferred class. And there is no great concern over ·the rela­ tionships among the different types of water in terms of the physical sources. The remedies available to injured parties are quite crude because monetary damage is very difficult to prove. There has been an upsurge in the number of statutes that have provided injunctive relief that is available to the state against polluters, and this has relieved some of the strain. However, this development does not add a great deal of security and dependability with regard to water use. QUESTIONS AND ANSWERS Q. If you have a situation in Alabama involving a withdrawal that completely dries up the stream and you have lower riparian owners down the stream that happen to be. in a preferred category--one of your mining operations, for exam­ ple--is there some recourse they have? What can a mining company do in terms of drying up a stream that someone else can't do? What if an irrigator has no 6 water as a result of the upstream mining operations? Is there any way they could bring action? A. The few cases that have given injunctive relief are those that. generally fall into this category. The courts would have to grant injunctive relief, because, I think, they might have a constitutional question if they're going to consistently refer to property rights in the water. The Alabama cases talk about property in the stream, but they ·don't talk about property in the water itself. So I think they'd have a constitutional problem if they didn't grant some injunctive relief for that, and if they held to the idea of monetary damages, I think that that would be a due process question. Q. Are there criteria for minimum reservoir releases? A. Yes, that was a problem in the 1974 case involving Alabama Power. The interesting thing in that case was that the lower riparian actually was not even using the water. I think that probably, if he had been depending on that water, using a certain part of the flow, and suddenly they built a dam and cut off a substantial part of that flow, there might have been a different conclu­ sion .in that case. But he was not a user of the water. Actually, he was con­ cerned about some recreational use, more than anything else. In Alabama, .recreational use of surface water is not looked upon with any great preference. Q. Did they address the public interest in the stream itself in the Alabama Power case? A. Yes. The courts have to find some way, when they identify these arbitrary preferences, to make it look good. One way to do this is to call it community interest or public interest--it's a word game. And they call it a balancing of interests, but the balance is weighted in the beginning. Q. The way I understand it·, the City of Mobile is not riparian--how do they legally justify taking water and carrying it from one watershed to another? A. I think that the City of Mobile has simply been successful in bargaining with the other riparians. Q. Well, you know this particular stream is an interstate stream--we've been trying to get compacts with Alabama--somebody better start talking. A. I think the City of Mobile has simply been successful in their bargaining with other riparians. Q. They didn't bargain with the Mississippi riparian owners downstream, though we have a day in court on that. We're going to get that compact resolved. A. There is a lack of judicial decisions on that point simply because they've been successful in getting together and bargaining out of court and coming to some resolution. Most of those riparians down there, I think, are willing to sell or make some arrangements. You're getting close to the concept of a mar­ ket in water somewhere along the line--well, that's a possibility. In fact, I think that by default, that's happening anyway. 7 Q. What about prescriptive rights? A. Well, for instance, in this most recent case in a federal district court, it was indicated that even if the lower riparian had been detrimentally affect­ ed, he still wouldn't have a remedy because there's a one-year statute of limi­ tations, and prescriptive use was perfected. His cause of action was moot, in other words. The statute had run. And that consistently has been held to be a prescriptive right. The action has got to be brought within the 12-month period, or else it's lost by prescription. Q. Does that statute run even if· a downstream riparian is not using the water? A. Yes, that's what happened in this case. Q. You don't lose riparian rights for nonuse, do you? A. That's right. In Alabama you don't lose riparian rights for nonuse. So I don't think that presented any kind of a problem to them. I think he was extremely surprised when he got to court and found that even if he had been detrimentally affected that he had not brought his action in the proper period of time. Q. Two questions. I presume from what you said in reference to recreation and perhaps to other instream uses such as fish and wildlife that there's really very little protection under Alabama law. Is that right? A. Well, let's more precisely define that question. We do have--this is going to be discussed later--some statutory protection, but that of course creates interest in the state. I assume that you're asking questions about protection of individual riparians. I think the answer to that question is yes. There's very little protection. Q. The other question is, with this picture you've painted of the status of water law in Alabama, what are the attitudes among state officials, among the interested public, and so forth--is there any ferment? A. Well, you'll hear that--you might hear a one-sided picture--but you'll hear it. We've got some state officials here. I don't want to speak for them. I don't want you to get the idea that I'm cynical. Like I said, it's all a word game anyway, and everybody can play it. 8 ADMINISTRATIVE SYSTEMS IN ALABAMA David M. Grubbs Professor Emeritus University of Alabama Tuscaloosa, Alabama Inasmuch as the State of Alabama imposes no statutory constraint upon the diver­ sion, withdrawal, or consumptive use of i .ts water resources, the state's in­ volvement in water management is through the medium of a number of agencies charged with providing public supplies, recreational facilities, navigation, drainage systems, industrial development, maintenance of water quality, consid- _eration of fish and wildlife interests, and, to a limited extent, the use of water. There are some three . dozen Alabama agencies concerned to a greater or lesser degree in water resources management. These range in operational scope from those with .substantial state-wide duties to those with secondary or incidental functions, to agencies with permissive functions, and to associations and com­ mittees with quasi legal status. Examples -within the first of _the above categories include the Department of Conservation, the Department of Public Health, and the Alabama Water Improve­ ment Connnission. These agencies are charged specifically with day-to-day responsibilities in water management. An example in the second group is the State Highway Department which has the minimal task of supplying water at inter­ state rest stops and convict labor camps. Agencies with restrictive or permissive functions include 12 authorities, com­ pacts, and commissions such as the Tennessee-Tombigbee Waterway Development Authority, Coosa Valley Development Authority, and the Tennessee-Mulberry Water ­ way Commission. These agencies have been created for purposes of development of waterways, navigation, water conservation and supply, flood control, public recreation, irrigation, and industrial development. Activities of these authorities are limited to specific geographic areas. The last group includes several organizations such as the Bear Creek Watershed Association, Inc., a corporation comprised of citizens for the promotion of river and watershed economic development. - In this capacity, these organiza­ tions _have certain standing in the state hierarchy. One might then logically ask: "Which within this array of agencies actually have administrative duties in the enforcement of statutory provisions of water 9 law?" This narrows the field to a few candidates only inasmuch as there are few Alabama water statutes in the strictest sense. The Department ·Of Public Health has general supervision and eontrQ~ · "'°ver public water supplies insofar as purity and physical quality of water are concerned. Housed within the same department is the Alabama Water Improvement Commission which is given broad legal authority and responsibility in the enhancement and protection of water quality. As a matter of fact, this agency is the only agency in Alabama cre­ ated solely for water management purposes (the word "management" is used here in a liberal sense). The Commission is authorized to promulgate rules and regulations which, in effect, delegate legislative power to the agency. The jurisdiction of the State Oil and Gas Board includes control of oil field operations in such manner to prevent pollution of freshwater supplies in drill ­ ing, the disposal of wastes in surface pits, and the design and operation of saltwater disposal wells. Broad jurisdiction over certain land resources that relate to water use is given the Department of Conservation. Included in these activities are the establishment of fishing lakes, recreation.al areas, irrigation~ dist.i}i.cts, etc., which do not, however, involve management of water resources ·per se. From the above it is evident that the administration of Alabama water laws is limited principally to water quality agencies, with little act~vity relating specifically to water allocation and quantity management. An interesting question surfaces with respect to the intent of a recent Alabama statute. This refers to the establishment of the Alabama Coastal Area Board. This legislation provides that the Board shall" ... determine permissible land and water uses •.• " in the coastal zone. The law cites, at great length, the need for more effective protection and use of land and water resources, and improved ~ethods of utilizing the lands and waters by developing use programs, including unified policies and processes for dealing with land and water use in the coastal area. Yet the iaw defines water use simply as "activities which are conducted in or on the water." The question is: "If the definition of water use were amended to include the end use of water, would contrel of end use de facto control water withdrawal?" The problem is that, under the existing water law and administrative system, there is no means of coping with .present and anticipated wat·er allocation, use, and management problems in Alabama. Water in Alabama, as in neighboring south­ eastern states, is not a scarce connnodity. The riparian rights doctrine and English common law have influenced the development of a legal philosophy that served adequately the needs of a water-rich land in the past century. This philosophy, however, will not stand the test of time in a nation faced with changing social values and beset by competition for resources which must be conserved and wisely allocated. Presently, there is a problem of sal~water . encroachment in the coastal zone that is slowly depriving communities· of a .s0urce of ground water. Anticipated intensive use of .water for irrigation in agricultural activities landward will draw heavily on aquifers in the near future and further aggravate the existing shortage. Strip mining in the watershed providing Tuscaloosa's principal 10 source is threatening the surf ac.e water supply. Pumping of water from a rock quarry site has allegedly lowered the local ·water table resulting in the loss of water in adjacent wells. Industrial requirements for large volumes of sur­ face water pose a choice between priorities. There is no way the present sys­ tem can deal. with thes·e and other· problems. The southeastern states, faced with common problems, should b.and · together to develop legislative programs of water resources management that wrll assure ·e-quitable and judicious use · of this most valuable natural. resource. This will require coordinated research. We have ·the knowledae and capability. Unless we do something about it now, the effort will be, as in the energy situation, too little and too late. QUESTIONS AND ANSWERS Q. What about the ownership of streambeds in Alabama? A. Mississippi and Alabama both should have the same law since they both came from th~ original colony of Georgia. As far as I am able to determine, the beds of navigable streams are held in trust by the public. The landowner owns the beds of non-navigable streams. I believe in the non-navigable streams, where you have two adjoining owners, their ownership goes to t~e center of the stream. 11 WATER RESOURCE PROBLEMS (Alabama) 1. Surf ace Water Law Water Withdrawal uses and allocation 5 Instream uses 3 Saline water intrusion 3 Land use relationships 4 Property damage 2 Ownership of submerged lands 1 Conjunctive use surface & ground water 3 Protection ground water recharge areas 2 Emergency use 2 Interbasin transfer 2 Interstate effects 4 Shoreline protection 4 Wetland protection 3 Public access 3 Reservation of reservoir sites 1 Water Administration Allocation standards & criteria 5 Data bases 4 Permit procedures 5 Regulation & enforcement 5 Agency structure & functions 5 Please mark as to priority using following code: 5 highest i l 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water \ Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem·. Lower ratings indicate that the problems are less severe or that existing laws address the problems. 12 ALABAMA STATE AGENCY COMMENTS Henry H. Caddell Alabama Attorney General's Office Montgomery, Alabama My experience has been in the area of environmental protection--much more in the area of water .quality than water quantity or allocation. But the two ques­ tions really cannot be separated. The allocation of water involves the use of that water for some purpose for which there must be minimum standards of qual­ ity. There are streams in Alabama that are really good for nothing; the water cannot be used for agricultural purposes or even for cooling purposes--it may be too corrosive to even use as cooling water. So because of water quality · problems, water for all practical purposes is not available. There is an obvious connection between quantity availability and quality; therefore, the quality issue has to be considered to some extent. My work has been in the area of providing legal services to Alabama's pollution and environmental agencies . . This experience generally has been with the exotic things that hap­ pen to the agencies. They need attorneys when they get sued, vhen they have somebody that refuses to go along with their requirements, or when something unusual happens -. The previous paper by Putt.has made it obvious that Alabama now has a patch­ work of case law in the area of allocation. In this area, as in the area of water quality and environmental control, the traditional case law is not ade­ quate. In the area of air and water pollution control, our traditional laws of nuisance~ trespass, and so forth on the books from even the old days in England were helpful, but they just were not adequate. They are hit and miss, they address specific problems without a systematic approach, and, very impor­ tantly, these remedies are normally available only to people that can afford to get a good attorney to fight it out with a. good attorney from the other side. Perhaps relief from a pollution problem or a water problem is obtained, or perhaps not; it is hit and miss. Thus some kind of systemized, rational, and fair framework is going to have to be developed at some time in the future to address this problem in spite of the superabundant quantities of water in Alabama. Perhaps one of our greatest obstacles in really addressing this problem is the great amount of water. There is limited irrigation in Alabama simply because of the abundant rainfall. There are a lot of navigable streams, surface water, and ground water. It has been in this state of plenty that our policies have developed, and they are really addressed to this state of superabundance. It is going to be hard to make the transition down the road when water is just not available for impor­ tant purposes. 13 There are a few alternatives in this area of addressing problems in a system­ atic fashion that should be considered. An obvious one would be water with­ drawal legislation which would set up a bureaucracy, an agency with standards and sanctions, resources, and personnel which would set up a permitting system for the withdrawal of water for various purposes. This has been necessary in the West and some of the arid regions in the country. Such an agency, if it were to be a meaningful agency, would also ultimately come down to the various problems ·of regulation, including enforcement. It has been our experience that any agency that is worth having on the books is going to come down to a junc­ ture of having to enforce standards. There is always someone that decides to thumb his nose at the agency and ignore its regulations. This occurs in all areas of regulation. There are a lot .of rugged individuals in Alabama. In our pollution laws, the state has run into those who just take the Thoreau ap­ proach that the government should not interfere. Therefore, enforcement is essential or the program will be meaningless. This suggestion is one that should be put out on the table but very quickly rejected for a number of reasons. First, with our abundant water supplies, there is · no need for this extent of regulation at this time. Few i~ any legis­ latures in the southeastern region would be convinced of the need for compre­ hensive regulation or permitting of withdrawal of water. In addition, it would not be politically feasible even if some kind of basic need could be shown. This situation arises out of our aversion in this region to overregu­ lation, or to regulation at all unless a clear need can be shown. In Alabama, this normally means the federal government is standing up there with a stick saying, "Get in ·there and regulate." This does not appear likely in the area of water use. Federal action in this area does not seem near. For one thing, the bulk of western states are already active in this area and would severely resist encouraging the federal government into the area. And the laws are so diverse. For these reasons the idea of a new bureaucracy to permit water with­ drawal should be rejected. But there is a problem; our common law is not doing the job and cannot be depended on in the future to produce a fair, systematic approach to these prob­ lems. There are other alternatives that possibly should be considered in this area. One of these would cons.ist of legislative clarification of substantive rights. This would not involve the creation of a new agency and bureaucracy but simply the legislature coming in and, through legislative action, reversing some of the inequities that have produced situations of favoritism for certain industrial users. In this approach, it would be possible to have a substantive water rights law for Alabama and a situation in which reasonable use could be legislatively defined. A procedure could be established for riparian owners to vindicate their rights. This approach is greatly preferred to the approach of creating a new bureaucracy simply for the purpose of allocation of water. There are other alternatives which are perhaps a little more radical. One falls under the category of land use planning. This . is a term which has been knocked about rather severely over the past few years. In view of the great quantity of rainfall, surface water, and ground water in Alabama, existing water problems result principally from poor land use planning. There are a number of examples of this in Alabama. Failure to wisely plan land and re­ sources is the main danger down the road to the availability of our water . . 14 Land use planning has been proposed on a national level and was rejected by Congress a few years back. It is very likely that it will resurface under the present administration at some time. · So not only will various reasons exist at the state and local levels to support land use planning, but the federal carrot and the stick will be a factor. In Alabama, this is very important in getting any kind of new regulatory framework going. It is my opinion in view of deal­ ing with Alabama's environmental problems for the last seven years that Ala­ bama--and "possibly the southeastern region--is in very great need of meaningful land use planning. Many of our problems would never have occurred had some sensible planning gone on in the past. If there was ever a need for wise use planning anywhere, it is now and it is in Alabama, and· possibly in other areas of the southeastern United States. "Land use planning" means a lot of different things. In the area of land use planning; a few priority areas should be looked at and addressed right away. Generally the concept of land use planning is some kind of incentive to require local entities to carry out a long range planning process for particular geo­ graphical areas. Planning must consider what the local people want for their area but must consider other policy constraints. A primary policy constraint in this area should be· the availability of usable water and the use of existing water supplies. Somewhere along the line, meaningful land use planning will have to be enforced. If the southwestern area of a city has been designated residential, industry simply has . to be kept out. There are some fairly dramatic examples of· failure of land use planning in Ala­ bama that have led directly to water problems. For example, consider the area of quarrying and mining. Limestone quarries and other forms of mining opera­ tions have the potential for lowering water tables and destroying wells in the vicinity of these operations. There are a number of ·other adverse environmen­ tal effects of these operations that would illustrate the need for land use planning with respect to them. In the future, there should be some mechanism for siting these quarries. ·Of' course the chief determinant in siting is the availability of the material to be extracted, but there is need for some mech­ anism for siting these quarries and surrounding residential areas to head off conflict. It is really ridiculous to have a quarry surrounded by homes and farms that need water to operate. Under existing Alabama law, the remedies are very much a hit and miss proposition. With coal surface mining, there has been extensive experience with this prob­ lem in Alabama. The coal seam itself with the associated shale strata has sometimes had perched ground water. When they are cut by the mining process, the water is lost and people lose their wells. It is really a rather pathetic situation where a lot of rural people--many times retired mine · workers--are sitting on land which represents their life savings without water. This is something that ought to be addressed through land use planning. Litigation is a bandaid approach--an after-the-fact . approach to these problems. It is a battle between experts brought in by the parties. They slug it out, both swearing that the other guy is not telling· the truth. But really the game has been lost just by the fact that a situation of inherent conflict has been al ­ lowed to develop. Another example of poor land use planning in Alabama perhaps common to other 15 regions of the south concerns siting of urban developments. There are a couple of problems here, and an obvious one is drinking water supply. Water supply planning is an essential aspect of locating a city or community. A lot of our connnunities grew up in a haphazard fashion, and they worried about the water as they grew. Many now have tremendous water supply problems. Another major problem with urban development is non-point runoff. This is a very elusive problem and has a very great impact on water quality. The problem has not been handled well or at all by environmental protection agencies. For a number of years they claimed to have no authority whatever to control non-point runoff. Now they are edging in the back door through their 208 plan and proposals for "management" plans for industries or activities creating non-point runoff. But it is not quite clear how it is going to work or what measure there will be of the elimination of this pollution. Urban developments involve automatic crea­ tion of non-point runoff. Even in an ordinary residential area, many pollut­ ants enter surface water and surrounding water supplies. This is something that can really be addressed most appropriately by land use planning. One glaring example along this line is that the whole City of Birmingham should never have been put where it is. Birmingham is located on the basis of three things; location of iron ore, coal, and limestone. It was located, inciden­ tally, in a valley that has terrible air stagnation problems. Within two decades of the establishment of ·Birmingham--it was founded around 1875--all the surface and ground water in the area was polluted and unusable. Foundries ·and primitive steel-making facilities polluted the surface water very quickly. These pollutants also flowed directly into the ground water. So there was a crisis, and Birmingham's history almost ended. But an aqueduct was cut through Red Mountain adjacent to Birmingham and through another mountain ove~ to the Cahaba River in another drainage area. This was quite a project because Red Mountain is made out of iron ore. That aqueduct now withdraws 90 percent of the flow of the Cahaba River. The Cahaba is severely affected by this with­ drawal, but a pre~criptive right to take this water has been acquired and, legally, the city cannot be forced to look elsewhere for its drinking water. The Cahaba for a good while was one of Alabama's prime candidates for status as a national wild and scenic river ' in the lower reaches, but the low flow, par­ ticularly during the month · of August, really created problems. There is also a great pressure for development, and the whole Birmingham regional area must deyelop to the south for a number of reasons, primarily the location of dirty industry to the north. The Cahaba River is the only receiving stream there and it does not really provide enough water for that purpose. It provides almost all the drinking water for the City of Birmingham already. There is really not enough water there for use as a receiving stream for just the sewa·ge that is going to be created, not to mention the non-point runoff. Reasonable land use pla~ning would, of course, have prevented a lot of these problems. Mistakes must be lived with. The City of Birmingham is not going to be moved, and the development patterns are not likely to be modified. These cases are dramatic examples of failure of land use planning that· impact ultimately on water use and water supply for an area; my suggestion would be, from the standpoint of water use and water allocation, to get involved with the question of land use planning and plug in the water use and water allocation issue. There is some violent opposition to land use planning. Land use plan­ ning would not be politically feasible without federal pressure in Alabama. 16 Politically it is very unpopular; it is associated with conmunism and the take­ over of private property. But water use people should tag along here and have your input, because this may be a vehicle that you can jump aboard and get what you need on water use without creating a new bureaucracy in the area, which I think is both not needed and not politically viable in itself. Another area of concern, which is really a subcategory of land use planning, is scenic river protection. Some states in our region have already gone to this on a statewide level. For example, the State of Tennessee has a scenic rivers act under which rivers may be designated as scenic. The basic concept here is for some state agency to have responsibility to identify various rivers as scenic and designate them for various levels of protection. There may be several classes. There may be just a scenic-recreational designation in which there would not be extremely great restrictions. But then there may also be a wild and scenic designation involving greater restrictions on development in and around the river, on impoundment, or on other things that would affect the scenic and recreational use and values of that stream. Scenic designation pro.­ vides a real dividend in the area of water use and availability. Although in the specific range and limit of that scenic river excessive withdrawal of water may be prohibited, regulation of various development around ,the river guaran­ tees maintenance of high water quality. As the water moves downstream it may go to a reach of the river that can be impounded and water withdrawn for water supply. There is one stream in Alabama that has been more or less protected along this line. It is a small river, called Little River, that flows along the top of a mountain. It has created a canyon which is a very deep canyon for our region. It has very high quality water, but it is not a good canoeing stream. A num­ ber of people have been killed trying to canoe it. It . is just too rough and rocky to canoe, but it has a state park on it. This river has a lot of coal around it and it was really endangered. So the legislature prohibited surface mining within 1,000 feet of . the canyon or the river and set up a local commis­ sion with authority to impose even greater restrictions in order to protect the integrity and the quality of the stream. Hopefully there will be more of these. There are about 10 rivers in Alabama that deserve some degree of protection to preserve recreational and scenic use. The South has not been very aggressive in getting national wild and scenic rivers designated. There may be one in North Carolina and maybe one in Florida and a few others but the South lags behind other regions of the country in this area. Although efforts have been made, Alabama has no designations thus far. This is one subcategory of land use planning into which water management goals should be plugged. A final area of concern to us in Alabama is that of stream channelization proj­ ects. There are half a dozen or so hold-over stream channelization projects in Alabama which are still on the drawing board and which represent a political pork barrel at its. worst. Efforts have been made to get these projects deau­ thorized and off the books. From our total assessment, they have not been en­ vironmentally valuable from any standpoint. A number of them have even been found to have minimal flood control benefits. Wise planning' for both water quality and water availability requires that we cut back drastically upon these ill-begotten projects. 17 QUESTIONS AND ANSWERS Q. I've got an observation, then a question. The observation pertains to your connnents with respect to the scenic river protection. I think your idea to use scenic designation in preserving high quality water supplies for, say, down­ stream withdrawal for a public water supply, needs underscoring. I think we're going to find as this toxic substance thing gets better understood over time that the necessity of high quality supplies is going to be an imperative in many cases, and that there are really persuasive arguments for _ pushing this right along in parallel to the argument just for the scenic qualities of the stream. These are going to become precious commodities sooner or later. The question I have goes back to your comment regarding_ Birmingham and its exten­ sion of that aqueduct to the Cahaba. This is an interbasin transfer. Has· the issue come to a head in Alabama with regard .to this one example, and with any others? A. It hasn't really been faced head on. It's been kicked about in our 208 plan and our area waste disposal plan for the Cahaba region. The major prob­ lem is just the lack of water in the Cahaba. It's been taken out and trans­ ferred to the City of Birmingham. Some of it finds its way back through sew­ age, but a lot of it doesn't. Q. What if it were challenged? A. I don't think we have any doctrine developed in the law--and Larry Putt may want to correct me on this--addressed to the area of interbasin transfer. I think it's one policy that could be considered through land use planning, or through some kind of substantive amendment to the law clarifying · rights. I might add on your first point that the preservation of wetlands would be a key feature in "preserving high quality streams for drinking water because of their function as a tertiary treatment area in assimilation-. of wastes. So this is something you might look at along with scenic rivers--the pres_ervation of freshwater wetlands that help to purify water. Q. On your scenic rivers act, does the state in effect freeze withdrawals up­ stream from the area which is designated as scenic river? A. · The only act we have is directed at one stream--Little River. It's not, strictly speaking, a scenic river act. · It doesn't really fill the bill as per­ haps an act that other states or the federal government· have enacted. But to have a scenic river in the first place, you've got to have a segment with some kind of guarantee of water in it, so part of the restrictions might be restric­ tions of withdrawal or some guarantee that upstream wi·thdrawa~ will be frozen at its present level. Q. You mentioned the Cahaba River and the problems you have there. I don't know many other problems you have similar to this in Alabama. Two questions: one, wouldn't a comprehensive water management system in the ·state--a permit system--resolve this Cahaba problem, and secondly·, how could you create a land use program in Alabama without creating additional bureaucracy? A. My response to that would be that a new agency addressed strictly to water 18 withdrawal and water use would solve the ·problem. My thinking is that the agency proposal is not viable because it's not going to float politically. It's new and involves increased regulation that I don't think would be adopted. Secondly, I don't think the federal government is coming along with federal im­ peratives in the area. · You may want to question either or both of those prem­ ises. In the case of land use planning, I think you can ·get at the water use problems where they occur through land use planning, and I think there you do have the prospect of federal imperatives coming down . with national land use planning legislation. So the answer is, yes, you would · solve the problem through the first approach, but I think :there may be some over-kill there. Q. You speak of federal imperatives--do ·you mean that the direction Alabama is going to try to take is to guess what direction. the federal government is going? Is the federal direction · necessarily the way Alabama should go? A. I think you have to look at that. Our experience in air pollution, water pollution, surface .ridning, and the various ·regulatory areas I've been involved with indicates that our legislature doesn'·t really move ·until . they're under the gun from the federal government. The Federal Air Act says, either adopt a state air pollution law, or you get no money and plus you get federal carpet­ baggers out of Atlanta coming in . to contr0l your ·air pollution instead of doing it yourself. And other .states, I'm sure, are much farther along than ·us, and will venture out on their own in various problems. So looking .down the road, I foresee a national land use act · sometime, say within the next 10 years. The idea was voted down a couple of years ago, but I think it·' s coming back, so that's why I suggest a piggyback on that with regard to water use. Q. You're talking about the conversion · of municipal .water supplies. Assuming that municipalities have the condemnation power to condemn water rights, are there any restrictions on their condemnation· powers with regard to where the water has . to be used? A. I would have to defer to Larry Putt on the state of existing law. I just don't know. 19 Florida 21 Introduction FLORIDA WATER LAW Frank E. Maloney Professor of Law and Dean Emeritus University of Florida Gainesville, Florida HISTORICAL DEVELOPMENTS The water law of the State of Florida has developed within the Anglo-American legal system passed on to the United States from Great Britain. Within a country as large and diverse as the United States, with tremendous variations in the quantities of available fresh water, it is not surprising that dif­ ferent systems of regulating water use should have developed. While the United States, viewed in its entirety, has a bountiful suppiy of water, only the east­ ern and particularly the southeastern portion, including Florida, has been blessed with an ample annual rainfall. The western United States, especially that part of the country west of the Mississippi River, is much more arid, with the exception of a relatively narrow band along the northwest coast, ~ncluding the western edges of the states of Washington and Oregon, and parts of north­ ern California. Riparian Developments As the United States developed, the more humid East found variations of what became known as the "riparian" system of water law suitable to its early needs, whereas the arid West developed the system of water law known as prior appro­ priation. The riparian system of water law that developed in the states east of the Mis­ sissippi River paralleled the development of the common law of Engla~d.l It , was a sys~ of water rights based on ownership of land abutting on surface watercourses, including both lakes and streams. The owners of such land were referred to as riparian owners.2 · In its earlier stages, the system largely ignored ground water, as did the western prior appropriation system. Ground water was at that time regarded as a completely separate type of water resource. The interrelationship of ground and surf ace water as parts of the same hydro­ logic cycle was not yet appreciated.3 In those states that followed the original version of riparianism, known as the natural flow doctrine, the lower riparian owner was entitled to substantially the full flow of a watercourse in which he had riparian rights.4 This in turn meant that an upper riparian owner could not alter the natural flow of the watercourse except to make use of the water for purely domesti·c purposes. The 22 natural flow doctrine was adopted in England and the eastern United States when the consumptive use of water for industry and irrigation was very minor and the predominant problem was the prevention of pollution. It has been modified in many Eastern jurisdictions by what is known as the "reasonable use" doctrine. Under this modification, a lower riparian owner is entitled to protection only when diversion by an upper riparian owner unreasonably interferes with his use of the water. This in theory permits full use of the available supply, allow­ ing each riparian owner to make beneficial use of the water for any purpose to the extent that his use does not unreasonably interfere with the beneficial uses of others.5 Prior Appropriation A different system of water rights law developed in the West. Western law had its inception in the needs of the early gold miners for large quantities of water to carry on their operations. The water was first "appropriated," some­ times at gun point; later the develoEing law of the West granted judicial recognition to these appropriations. Under this doctrine, riparian ownership is not essential to the right to make withdrawals. A riparian or other owner can appropriate in perpetuity the right to use as much water as he can suc­ cessfully divert and beneficially employ, as long as his appropriation is prior to that of others, in which case his right, on a "first come, first served" basis, may extend; in an extreme case, to the complete appropriation of the available supply. It is interesting to note that while the concept of protecting the first users in perpetuity was developing out of the customs of the miners during the Cali ­ fornia gold rush, on the basis of the frontier principle of nfirst come, first served," no such development occurred during the parallel gold rush in Aus­ tralia. In that country the colonial government of Victoria allowed no period of legislative inaction in which the customs of the miners could develop into a recognizable body of legal principles. Government licenses for water for gold mining purposes supplied the same mining needs as in the United States, but the licenses were for a period of 15 years rather than in perpetuity. The Victoria government was, therefore, in a position to plan and coordinate the water development of the country in a way not possible in the American West under the appropriation doctrine.7 Contrasting Features of Riparian and Prior Appropriation Systems The right to obtain water from a watercourse comes automatically as an incident of the ownership of land under the eastern riparian doctrine. The western states, following the appropriative system, all provide a formal means for acquiring water rights through some type of permit system. 8 The predominant feature of the prior appropriation system is that a riparian or other owner can appropriate, in perpetuity, the right to use as much water as he can success­ fully divert and beneficially employ as long as he does so prior to other users.9 This right of use may be lost only through abandonment and forfeiture. 23 In contrast, the riparian doctrine has never recognized an unqualified right in any person to the use of a specified quantity of water at a given time for a particular purpose; the right has always been dependent on the circumstances existing at any given time.10 In riparian jurisdictions the property interest of riparian owners is a right to make use of the water under a system of recip­ rocal rights. The system may change, as long as the change is pursued in a reasonable and just manner, in the public interest, and does not inequitably disturb the reasonable expectations of those with the right to make use of water. In the past, because there was an ample supply of water available, the connnon law standard of relative reasonableness under the reasonable use rule sufficed for adjustment of conflicts between uses in the eastern United States. At the same time, the riparian reasonable use rule provided a much more flexible sys­ tem for allocation and re-allocation of water resources than the appropriation­ in-perpetuity approach of the western system. Post-World War II Developments in the Eastern United States Technological developments and industrial expansion stennning in large part from World War II led to ever increasing demands on the water resources of the east­ ern United States.11 As these demands increased, the reasonable use doctrine administered by the courts began to prove inadequate to meet them. The restriction on the use of water in lakes and streams to riparian land proved unworkable. Moreover, the element of uncertainty in a rule under which the reasonableness of each use is determined by the needs of other riparians who may connnence or enlarge uses despite long non-use of their rights was criti ­ cized as leading industry to settle elsewhere because of the fear of having its water use patterns upset at some later date by competing projects. This fear was further .exacerbated by the fact that the extent of a riparian's right of reasonable use could only be · determined by litigation in the courts.12 To meet these criticisms, the Model Water Use Act was drafted by the Legisla­ tive Research Center at the University of Michigan Law School after extensive studies, and was approved in 1958 by the National Conference of Commissioners on Uniform State Laws. 13 In general., it contemplated the creation of a state water resources agency and the issuance of permits for some definite period of time, 50 years being the suggested ma~imum. It also provided for the exemp­ tion of domestic uses and for preservation of other existing uses. It was enacted only in Hawaii, and there only with respect to ground water.14 This model, however, aided a number of eastern states in rethinking their water use laws. A number of them established state water resources a~encies to aid in the development of permit systems regulating a1115 or a part 6 of the water resources of the particular state. At the same time, a number of eastern states considered switching from riparianism to prior appropriation, but with the exception of the state of Mississippi, which in 1956 enacted a surface water appropriation act embracing the principle of prior appropriation,17 this change was uniformly rejected. At least nine states,18 including Florida,19 considered and rejected it. Their reasons included a reluctance to suddenly give prior users in the East, simply on the basis of then existing uses, the 24 right to use the water in perpetuity, thus _surrendering in large part to the market place the long range planning functions which are a duty of government. They preferred, through the development of permit systems providing for permits of finite duration, to ensure "reeveluation at periodic intervals of · the bene­ ficial character of the permi-tted use. 11 20 Increasing concern for environmental protection, as reflected in the main­ tenance of minimum stream flows and ground water levels, was another factor in tbeir rejection of prior appropriation.21 Most western water rights systems were designed to promote economic development of the land.22 If this resulted in depletion of streams and interference with instream values, including recreational use and propagation and maintenance of fish and wildlife resources, and depletion of related ground-water resources, it was simply viewed as a necessary price to be paid for the economic development associated with making more water available for irrigation. These sacrif°iced uses were considered of secondary importance, to be accommodated only so long as . they did not interfere with the basic economic objective. 23 Utilization, rather than conservation, was the guiding principle. This led one group of eastern authors to conclude that prior appropriation "contributes nothing toward answering the question, "What is the best use?"24 __ a question that lies at the heart of sound long­ range planning for optimum water resources development in the public interest. Development of the Florida System Earlier Developments While tentative steps toward the development of permit systems with permits of limited duration were being taken in other eastern s·tates, some interesting developments were also occurring in Florida. In the period prior to World War II, the major emphasis was on drainage to dispose of excess surface water, par­ ticularly in the rapidly developing agricultural areas of South Florida. The topography of this area is very flat, and rainfall of ten remained on the land for long periods unless it was removed by drainage works. In the earlier per­ iod primary, and indeed often sole, emphasis was placed on the construction of these works. Single-purpose drainage districts, including the large Ever­ glades Drainage District,25 and hundreds of smaller drainage districts were formed,26 with little thought other than to remove the surface water from the land. The same development began to take place in Central Florida, where the Green Swamp, a perched swamp which provided one of the major recharge areas for the Floridan aquifer in that part of the state, was being rapidly drain­ ed. 27 But much of Florida is subject to lengthy periods of severe rainfall deficiency. At such times the surface ~ater which was being wasted into the sea through drainage works could have been much better used for irrigation and ground-water recharge.28 One result was the formation of the Central and Southern Florida Flood Control District in 1949.29 The immediate impetus was provided by a major hurricane in 1947 which devastated the lower east coast of Florida and graphically demonstrated the need for further flood control measures. However, the Dis­ trict, which covers the lower southeastern quarter of the state, was created not simply as a flood control district, but rather as a multipurpose water management district in which conservation and use of diffused surface water 25 rapidly became of equal importance to its disposition in periods of excess rainfall. Other hurricanes, in 1959 and 1960, led to the creation in 1961 of another large-scale multipurpose water management district, the Southwest Florida Water Management District,30 which covers another fifth of the state. As in the case of the Central and Southern District, conservation of water supplies quickly became one of the principal projects of the district. Moreover, observation of the lack of adequate authority to regulate ground water in the Central and Southern District led the legislature to grant such authority to the Southwest District where regulation of ground-water resources was relatively more criti ­ cal than in the Central and Southern District. Meanwhile, following the state's rejection of a proposed statewide switch from common law riparianism to prior appropriation, the Florida legislature and water law experts at the University of Florida began to examine the possibili ­ ties for establishing a workable regulatory system for Florida, using the riparian system as its starting point.31 These studies led first to the enact­ ment of the 1957 Florida Water Resources Act,32 establishing a statewide admin­ istrative agency to oversee the development of Florida's water resources. The agency, originally established as a division within the State Board of Conser­ vation, was authorized to issue permits for the capture and use of excess sur­ face and ground waters,33 and to establish rules for. the conservation of water in areas of the state where over-withdrawals were endangering the resource through saltwater intrusion or other causes.34 Florida's 1972 Water Resources Act Building on the somewhat modest beginning described above, a group of water law experts at the Holland Law Center of the University of Florida developed "A Model Water Code."35 The Code was designed to provide a vehicle for comprehen­ sive state regulation of Florida's water resources along hydrologically sound lines, taking into consideration the interrelationship of all types of water resources in the hydrologic cycle. It provides for a system of administrative regulation within the framework of a riparian water law system. It was pub­ lished in book form by the University of Florida Press, and its essential chapters with minor modifications were adopted in Florida as the Water Resources Act of 1972,36 now Chapter 373, Florida Statutes (1973). Florida's 1972 Water Resources Act provides for a two-tiered administrative structure headed at the state level by what is now the Department of Environ­ mental Regulation.37 Under the department are five regional water management districts,38 designed to provide the diverse types of regulation necessary in different areas of the state. The boundaries of these districts are shown in Figure 1. They include the already existing Central and Southern Florida Flood Control District, renamed the South Florida Water Management District~ and the Southwest Florida Water Management District. Since the Central and Southern and the Southwest Districts were already in existence, fully staffed, and authorized to levy ad valorem taxes to pay for their regulatory functions, they were promptly delegated full regulatory and permitting powers by the Department of Natural Resources, at that time the 26 Water Management District Figure 1 Suwannee River Water Management District Water Management District South Florida Water Management District • St. Johns River state-level regulatory agency.39 The Act gives discretionary authority to the department to determine on behalf of the state when permit requirements should be imposed in the various districts. Since the need for such regulation has not been as critical in the three northern districts, and these districts were originally faced with severe budgetary problems,40 the permit system was at 27 first implemented only in the two southern districts where the major part of Florida's population is located, and is just now being put into effect in the first of the northern districts. THE FLORIDA SYSTEM IN ACTION State Water Use Planning and the Need for Better Coordination with Land Use Planning One of the most important features of Florida's 1972 Water Resources Act is its requirement for the development of an overall state water plan. Responding to the urgent need expressed in the Act's declaration of policy calling for ade­ quate water resources planning, the legislature mandated the State Water Plan as a direct response to this need.41 This plan is to be composed of a State Water Use Plan and a State Water Quality Plan.42 The State Water Quality Plan contains water quality standards, objectives, and guidelines, and requires a specific program of implementation for those water uses which do not presently meet established water quality standards. It is to be married to the State Water Use Plan by the Department of Environmental Regulation, which today has statewide jurisdiction over water use and water quality planning and regula­ tion. The product of this marriage will be the State Water Plan. The Florida Act differs from most state statutes in that it directs the Depart­ ment to prepare a specific document containing a detailed and comprehensive blueprint for water resources management within the state.43 Because the State Water Use Plan must be formulated on an area-by-area basis, the water management districts must of necessity play a prominent role in the development of the plan. The Act directs the governing boards of the districts to cooperate with the department in this respect and furnish necessary technical information and services.44 It is essential that the governing boards participate actively in the formula­ tion of the State Water Use Plan since they will play a major part in the imple­ mentation of its objectives. They are the agencies which will administer the various permit systems, thus regulating consumptive uses of water, as well as issuing permits for the construction or alteration of dams or other water stor­ age structures for surface water management,45 and for the construction and operation of wells for withdrawal or recharge of ground water.4 6 To this end the Florida Water Resources Act delineates general objectives that the State Water Use Plan must seek to implement. The Department of Environ­ mental Regulation is required to give due consideration to: 1. The attainment of maximum reasonable-beneficial use of water for environmental protection, fish and wildlife, recreational use, water quality, irrigation, mining, power development, domestic, municipal, and industrial uses; 2. Economic development of water resources; 28 3. Control of waters for purposes of navigation, drainage, and flood control; 4. The quantity of water available for application to a reasonable­ beneficial use; 5. The prevention of wasteful and unreasonable use of water resources; 6. Presently exercised domestic use and permit rights; 7. Water quality and the State Water Quality Plan; 8. The state water resources policy.47 The Act requires the department to ascertain the quantity of water available for application to reasonable-beneficial uses as well as the extent of presently exercised domestic uses and permit rights. This information must then be con­ sidered in the formulation of any plan for future development of the resource. Detailed planning must be based on a thorough study of the state's water re­ sources, including existing water use patterns and problems.48 The State Water Use Plan is to be formulated in cooperation w~th the Division of State Planning of the Department of Administration as a functional element of the Comprehensive State Plan.49 The Florida State Comprehensive Planning Act of 1972 provides for the preparation and continuing revision of this plan by the Division of State Planning. The Division has developed a series of over­ all state water use policies in what it has designated as the "Water Element" of the comprehensive plan. A copy of this "Water Element," including recommenda­ tions for state agency implementation, is attached as Appendix 1 to this paper. The policies are well thought out, and the document should prove helpful to planners in other states •. These policies have been approved by the Governor and will be brought before the 1978 Florida Legislature for approval. Once adopted and approved by the legislature, they will provide the policy base for the State Water Plan. That plan should, therefore, be consistent with whatever land use plans are developed at the state level.SO Unfortunately, there is no means pro­ vided for effective implementation of the Comprehensive State Plan, although it does have a restrictive effect on state action, since upon approval of the plan, state agency budgets are to be prepared and executed in accordance with it.51 A more effective law for the development and implementation of land use planning in Florida is the Local Government Comprehensive Planning Act of 1975.52 The Act requires local governments to adopt b~ a specified date comprehensive plans for their future growth and development. 5 For any area which fails to prepare a plan, the state will assume planning responsibilities and bill the costs to the local government.54 A number of elements must be included in the comprehensive plan. A land use plan element must designate "future general distribution, location, and extent of the uses of land" for various categories of use.55 Another required element is the projection of needs for drainage and potable water and the correlation of these needs with the land use element.56 The plan must specifically address the problem of how to provide the necessary facilities for such drainage and 29 water supply. A conservation element must analyze "the conservation, develo7- ment, utilization, and protection of natural resources in the area •••• "5 A major objective of the planning process is to coordinate the various elements of the plan.58 Although the Act does not mandate in any way the substance of the decisions made by local planners, it does make them consider interrelated effects. Fur­ thermore, the comprehensive local plan has a powerful legal status. All land development regulations59 and any subsequent land developments must be consist ­ ent with the comprehensive plan. 00 The state's only direct involvement with land use control other than as it relates to state action is through the Environmental Land and Water Management Act of 1972.61 It is closely modeled after the American Law Institute's (ALI) Model Land Development Code. 02 A basic premise of the Act is that the state should become involved with only a small number of land use decisions--those with regional or statewide impacts. Florida's governor arid cabinet are empowered to designate lands as "areas of critical state concern. 11 63 Three types of areas may be so designated. The first is "an area containing, or having a significant impact upon, environ­ mental, historical, natural, or archaeological resources of regional or state­ wide importance."6q The . second category is for areas affecting or affected by major existing or proposed public facilities, such as airports or roads. 65 A third category covers proposed sites for new communities. 06 A serious limita­ tion is that no more than five percent of the state's land area may be desig­ nated at any one time.67 The Administration Commission must then specify principles for guiding development of the area.68 Local land development regulations must be consistent with those principles.69 Developments of regional impact70 are also subject to specific regulation. 71 The procedure essentially subjects such developments to state review. The right to evaluate and approve proposed. developments, at least initially, remains in local government. Regional planning councils have a right to make recommendations. There is no requirement that these recommendations be fol­ lowed, but if a development order is issued, then either the developer, the regional planning council, or the state land planning agency may appeal the order to the governor an4 cabinet.72 A final decision on whether to allow development is then made by the statewide body. The Environmental Land and Water Management Act has been a very important tool for protecting Florida's water resources. The first areas of critical state concern, Big Cypress and Green Swamp, were designated largely to protect them as sources of ground and surface water.73 Water use planning and management considerations have also played a determina­ tive role in the evaluation of developments of regional impact. In the first such case decided on appeal by the cabinet, permission was denied for a large residential development near Orlando in large part because of concern for the effects of sewage and storm water runoff on water quality of the adjacent Wekiva River.74 A more recent example of the development of regional impact process is the 30 "Estuaries," a proposed development of regional impact in Lee County adjacent to Estero Bay on the southern Gulf coast of Florida.75 The developer pro­ posed to develop a 6,500 acre tract of land with 26,500 high density dwelling units.76 In its evaluation recommending disapproval of the project, the South­ west Florida Regional Planning Council concentrated heavily on potential harm­ ful impacts to the water quality of the adjacent es~uaries. Another impact evaluate.d by the Council was the proposed development's demand on the area's fresh water supplies.77 It concluded that insufficient data existed to determine whether the project would unduly burden areawide water resources.78 Based on the negative recommendation, the Lee County Board of County Commissioners refused to issue a favorable development _order. A state­ appointed hearing examiner has recommended upholding that decision,79 and the state cabinet, sitting as the State Land and Water Adjudicatory Commission, upheld denial of the development order. The case is now on appeal to the First District Court of Appeal of Florida. Consumptive Water Use Permits The Reasonable-Beneficial Use Standard Returning to the 1972 Florida Water Resources Act, an innovative provision in the Act is the development of a new standard to govern the issuance of consump­ tive use permits--the standard of reasonable-beneficial use.BO This standard is designed to protect other water users and the general public from wasteful uses of w.ater. In their earliest and least sophisticated forms, both the riparian and prior appropriation systems were wasteful, although for different reasons. The reasonable use limitation and the beneficial use limitation, respectively, were grafted onto the two systems to improve their efficiency. The· reasonable use rule as developed in the eastern United States allows each riparian owner to use only such amounts of water as are reasonable with respect to the uses of other riparian owners.Bl The rule is sufficient to protect other riparians from some wasteful operations, but it is of little use to nonriparians or to the general public. The beneficial use rule of prior appropriation holds that an appropriator who diverts more water than is needed for his actual require­ ments and allows the excess to go to waste acquires no rights to the excess. There is no requirement of "reasonableness," however, in relation to other users or potential users. The reasonable-beneficial use standard of the Florida statute is an attempt to combine the best features of the reasonabie use and beneficial use rules. First of all, the quantity of water used must be efficient with respect to the use itself. This part of the reasonable-beneficial use test allows only that quantity of water to be used as is nec·essary for an economically efficient operation. The value of the use itself in relation to other uses is not con­ sidered in this part of the test. However, the reasonable-beneficial use standard also requires that the water, regardless of amount, be used for a purpose which is both reasonable and consistent with the public interest. This means that the purpose must be reasonable in relation to other uses. This criterion does not require that ·the use be the most economical use of water 31 possible, but only that the use not be detrimental to other users or totally inconsistent with the character of the watercourse from which the supply is taken, or inconsistent with the public interest.82 One device which the Department of Environmental Regulation can use to bring about closer integration of water management decisions with those of local land use planners would be through defining the public interest component of the reasonable-beneficial use standard on the State Water Plan.83 Permitting use of water for an activity that is inconsistent with local land use plans, even if they have not yet been implemented in local regulations, could then be found contrary to the public interest. For example, if county planners have decided it would be desirable to preserve a certain area in its natural state or as an agricultural zone, it would not be in the public interest for the water management district to grant a consumptive water use permit for the potable water supply of a large residential development in the area. Rather than granting the permit simply because water is physically available, a Water Management District could deny it to reinforce the efforts of local land use planners. Another feature of the 1972 Florida Water Resources Act could be used by Florida's water managers to harmonize the issuance of permits with land use plans. The Department of Environmental Regulation is allowed to designate in the State Water Use Plan certain desirable uses which are to be given a preference in the granting of consumptive use permits.84 Such uses might include recreation, preservation of the environment, protection of recharge areas, and others. A general preference for those uses which are consistent with land use plans over those uses which are inconsistent might also be stated. Once such a designation is made, the governing boards of the water management districts must recognize it. Although some western states employ. preferences in their prior appropriation laws to promote particular water policies, to date preferences have seldom been used in the United States to further environmental objectives.85 Recognition of Environmental Considerations The Florida Water Resources Act also provides for the establishment of a mini­ mum flow for surface watercourses, as well as minimum lake and ground-water levels.86 It is essential that any system of water allocation include pro­ visions for minimum flows and levels for public purposes. Commercial naviga­ tion, recreational boating, fishing, hunting, swimming, and protection of the ecology are some of the non-consumptive public purposes that can be pro­ tected under the minimum flow and level concept.87 For ground water, the minimum level is defined as the level of water in an aquifer at which further withdrawals would be significantly harmful to the water resources of the area. 88 The water management districts are allowed to calculate minimum flows and levels to reflect seasonable variations. Thus, minimum flows and the levels act as guidelines in the granting of permit rights and also pro­ tect non-consumptive uses and allow protection of recharge areas and the furtherance of other environmental objectives. Florida's Water Resources Act also permits a form of "environmental zoning," as certain uses may be declared undesirable because of the likelihood that 32 they will adversely affect the environment in the surrounding area.89 In such cases the governing .board of a water .management district is authorized, but not compelled, to deny a consumptive use permit. Provision for Water Shortages and Emergencies The provisions in the Florida Act for handling water shortages90 and emergen­ cies91 are also innovative. The Act requires that the governing board of each district formulate a water shortage .plan, as part of which a system of permit classifications is to be established. Pursuant to this plan and its permit classification system, the district may declare a water shortage when insuf­ ficient water is available to meet the requirements of the regular permit system or when conditions are such as to require temporary reduction to pro­ tect the area's water resources from serious harm. In accordance with this plan, the governing board of the Department may impose restrictions on all or specific classes of permits to protect or restore the water resources.92 In the event of a more severe shortage, the board may declare a water emer­ gency, and issue orders requiring apportioning, rotating, limiting or even pro­ hibiting certain ~ses where necessary to meet the emergency. An affected party must obey the order, but the board must provide him with a hearing with­ in 15 days in the event he believes he has been treated unfairly.93 Contrary to the suggestion of one western cotmnentator that these provisions involve pure administrative discretion,94 the system provides definite guide­ lines to facilitate advance planning for periods of water shortage, along with a fair and equitable method for users to share the available water at such times. The first step toward such .planning is· the system of classification, after which the board is required to formulate a plan for use during any future periods of shortage, · Restrictions on water use will then be applied on a class basis, and individual users will know in advance their relative priority in time of shortage. These classifications are to be ·used only dur­ ing crisis periods, and will not serve as criteria for issuance of permits or for any other purpose.95 · Under the Florida Act, unlike the system of prior appropriation which auto­ matically and completely cuts off junior appropriators in times of shortage, each perm.ittee is entitled to his full amount of water until a shortage is declared. Notice and public hearing are required before such a declaration is made.96 It should be emphasized that such a crisis is an emergency only in the sense that the water supply is critically deficient. It should occasion no sudden surprise. Because of the plan, all concerned will know what is to happen, when it is to happen, and what to expect at each stage of the crisis. The water shortage plan provides a mechanism for orderly adjustment of con­ sumptive uses in periods Of shortage, thereby mitigating in the long run the effects of such a situation. How is this device working out in practice? The South Florida Water Management District, as a part of the regulations it adopted to implement the Act, has already classified its permits according to source and use for the purpose of implementing water shortage plans within the District.97 The source classifi- 33 cation includes ground and surface water, with the provision that the board may further classify these sources if necessary. Uses have been classified into nine classifications: domestic, essential service, public supply, live­ stock, agricultural, industrial, mining, power, and recreational--again with provisions for further classification if deemed necessary.98 This use classi ­ fication system was adopted in part from the states of Nevada and Cali ­ fornia. 99 No specific classification of water use for preservation of natural resources or fish and wildlife was made since these are ·not uses that require permits, but the District has indicated its intention to protect these resources under other provisions of the Act establishing minimum flows and levels.100 The listing of the classes in District regulations did not establish a prior­ ity ranking between classes. This problem was left for further refinement through the development of area water shortage plans to be adopted and promul­ gated by the Board after public hearings in the areas concerned. Two such area plans have been adopted to date, one for the Lake Istokpoga-Indian Prairie Area,lOl and one for the Saint Lucie County Agricultural Area.102 The District appears to have established a workable method for dealing with water shortages and has provided a reasonable and equitable system for handling such shortage situations in the public interest. APPLICABLE LAW IN WATER MANAGEMENT DISTRICTS WHERE CONSUMPTIVE USE PERMIT PROGRAMS HAVE NOT BEEN IMPLEMENTED Rules Regarding Withdrawals Although, as explained above,103 the 1972 Florida Water Resources Act was taken from the "Model Water Code," a number of the provisiqns of the Model Code were changed or omitted by the legislature. For example, the Model Code envisioned a mandatory permit system for withdrawals of water for consumptive use,104 but the legislature changed this requirement to authorize rather than require such a system.105 Before the consumptive use permit system can be put into effect in a particular water management district, that district must first petition the Department of Environmental Regulation for permission to implement that system, and the Department must give its consent to such imple­ mentation.106 Once the permit system becomes operative, it is mandatory that it be followed, but the provisions of the statute .with respect to such a system do not come into play until the program itself is adopted.107 if the district or the Department does not choose to implement the system, then connnon law rules still control the right · to withdraw and use the water, whether from surface or ground sources. With respect to surface water, the connnon law rule that was developed by the Florida courts was one of reasonable use rather than natural flow.108 Under this rule, riparian owners on Florida's water­ courses were entitled to make reasonable uses of the water, so long as those uses did not unreasonably interfere with the reasonable uses, actual or pro­ spective, of the other riparian owners on the watercourse.109 34 With respect to ground water, Florida again adopted the reasonable use approach rather than the English coDDDon law in its pure form under which the ownership of land carried with it the absolute ownership of the water below it.110 In Koch v. Wick,111 a leading 1956 Florida case, the Supreme Court of Florida clearly rejected the absolute ownership rule, and indicated it would follow the reasonable use rule in matters concerning ground waters. This rule, as applied to the regulation of ground water in most reasonable use jurisdictions, differs somewhat from the rule applied to ·use of surface water. As to the latter, it would be unreasonable for one riparian to take all of the water, even if he could put it to beneficial use. If there were other ripar­ ians seeking to share in the use of the water, they would all have equal rights to make use of it.112 Under the rule for ground water as d~veloped in eastern jurisdictions, however, reasonable use has focused on the relationship of the use to the overlying land.113 Courts have allowed uses for irrigation and manufacturing ·to stand as reasonable even though they adversely interfered with the rights of other users because the use of the water was beneficial to the land of the user.114 This rule is not to be confused with a variation of the reasonable use rule that has been followed in California known as the rule of correlative rights. The latter rule stipulates not only that the landowner must use the water in a beneficial manner .with respect to the use of his land, but that he is only entitled to an equitable share. if there is not enough water to meet the needs of al1.115 The rule was developed in an agricultural context, and has not been followed in Florida to date, although the water crop theory, at least as orig­ inally stated, appears to bear a very close relationship to it.116 Transportation Beyond Riparian or Overlying Land There is another limitation applied in the coDDDon law that may be of consider­ able importance in those areas of Florida where consumptive use permit systems have not yet been implemented. That is the restriction that water from water­ courses is not to be used or transported beyond riparian land,1~7 and ground water is not to be transported beyond the overlying land of the landowner.118 . The existence of this often over-restrictive limitation was one of the princi­ pal factors leading to the creation of the Florida Water Resources Study Com­ mission by the 1955 legislaturell9 and to the provision in the 1957 Florida Water Resources Law authorizing permits for the capture, storage, and division of surface and ground water in excess of the reasonable needs of riparian and overlying landowners.120 This legislative authority was designed to implement a dictum in the 1927 Florida case of Tilden v. Smithl21 which approved the diversion of excess flood waters from surface watercourses. It · was repealed concurrently with the enactment of the 1972 Florida Water Resources Law. 122 The 1957 permit system for excess water ~as replaced with even broader author­ ity for water management districts to authorize diversions beyond riparian and overlying land once those districts sought and received permitting authority under the 1972 Act.123 35 In those water management districts that have not yet received that authority, it would appear that the conunon law rule against diversions beyond riparian and overlying land may well remain in full force and effect. Such illegality would arguably render the use per se unreasonable and subject the user to the possibility of injunctive restriction as well as to liability for damages as a result of the use. The complainant, however, would have to prove that he was injured by the unreasonable use as a prerequisite to obtaining either damages or injunctive relief .124 In Koch, the complainant was denied relief against Pinellas County, which was withdrawing water from land adjacent to his land and transporting it to the City of Clearwater. As the case clearly indi­ cates, relief was denied only because the plaintiff failed to show damages.125 Expert testimony of qualified hydrologists on such matters is more readily obtained today, and if available should overcome this difficulty. This section of the discussion cannot be concluded without reference to a case currently before the Supreme Court of Florida which could have the effect of superimposing the older connnon law rules with respect to consumptive use of water as restrictions on the permit system provided by the 1972 Florida Water Resources Law in those water management districts which have already imple­ mented their consumptive use permit systems. The case is Jupiter Inlet Corporation v. Village of Tequesta.126 Appellant, Jupiter, owned land on which it built condominium apartments. Pumping by Tequesta from a wellfield in close proximity to Jupiter's property depleted the fresh water in the shallow aquifer in the vicinity of the wells and result ­ ed in saltwater intrusion under Jupiter's land. Jupiter, which alleged it had intended to use the shallow aquifer as a source of potable water for its con­ dominium apartments, brought suit against Tequesta on the theory that Tequesta's actions constituted a taking of Jupiter's property. On appeal from a summary judgment for Tequesta entered by the Circuit Court for Palm Beach County, 127 the District Court of Appeal, Fourth District, reversed, finding that the shal­ low aquifer beneath Jupiter's land was "a form of private property," the bene­ ficial use of which could not be "divested" without payment of full compensa­ tion.128 Not content with remanding the case for further proceedings, the District Court certified the question to the Supreme Court of Floridal29 as to whether such deprivation of beneficial use of the aquifer was a taking. It is interesting to note that nowhere in the opinions of either lower court, nor in the briefs of either side on appeal, was there any mention made of the fact that a consumptive use permit system was in effect in the area which is a part of the South Florida Water Management District, nor was the District made a party to the lawsuit. Becoming aware of the controversy at the Supreme Court level, the District has sought leave to intervene, and has filed an amicus brief in the case. If the decision of the District Court of Appeal should be upheld, the result would apparently go beyond recognition of existing uses of water which are protected under the Water Resources Act provided that permits to continue such uses have been applied for within two years of the implementation of the per­ mit systems in the area.130 The case would extend the common law right to make future use of underlying ground water to districts which had implemented their permit systems, regardless of whether the district had received an appli- 36 cation and found such use to be a reasonable-beneficial one. Such an inter­ pretation, if adopted by the Supreme Court, would go far toward emasculating the 1972 Wate~ Resources Act which was designed to substitute permit rights under the Act for unused connnon law water rights,131 in order to provide maxi­ mum protection for Florida's water resources in the public interest. The resolution of this case is indeed a matter of great public interest, since it may be the key to whether the Florida legislature has provided a workable system for regulating the consumptive use of water in this State. CONCLUSION The technological advances brought by World War II, plus the population explo­ sion that followed, have made it evident that overreliance on the "guiding hand" of market forces to allocate land and water use has become obsolete, if not dangerous. As demands for their use have escalated, it is finally becom­ ing recognized in the United States that both land and water are finite resources. Moreover, man has developed the technological capability of de­ stroying these resources beyond the capacity of nature to repair.132 One of the foremost planning tools for sound water resource management is regu­ lation of consumptive uses and reallocation of water to more productive uses. A system of consumptive water use permits of finite duration, coordinated with a program of comprehensive planning for both landl33 and water use,134 is the most effective means of implementing planning objectives and directing develop­ ment along planned lines. This would enable state officials to prevent over­ development and competition for water.135 Underdevelopment as well as overdevelopment can be avoided by a choice of the better use when pending applications for water use relate to the same supply, and the available water is not sufficient for both.i36 Reallocation of water among agricultural, industrial, municipal, and recreational uses can also increase development potential of some areas, and should be considered as a possible alternative where additional water supplies are not readily available. Reallocations of this sort, however, require efficient mechanisms for the trans­ fer of water from lower to higher value uses. This means that it must be pos­ sible at some point in time for water to be transferred to what have become more reasonable uses, and for water devoted to agriculture to become available for use on more productive lands and crops.137 Long range plans must not only anticipate such changes in water use patterns, but must also provide the means to bring about transfers to higher value uses. The 1972 Florida Water Resources Lawl38 provides workable means for accomplishing this end. There still remains, however, the need for better coordination of land and water use planning and regulation if the public interest is to be fully served. Un­ fortunately, Florida depends on essentially separate regulatory systems for land and water. Land development is regulated by a combination of the Environmental Land and Water Management Act and local zoning regulations. Only major develop­ ment is subject to state-level regulation. Water is managed by a different level of government, the regional water management districts established under the 1972 Florida Water Resources Act. Although in practice the two systems have tended to complement one another, there are serious inefficiencies attributable to the lack of statutory consolidation. 37 As other states begin to regulate more intensively the development of their land and water resources in an effort to protect those resources for both present and future generations, perhaps they may learn from our experiences in Florida. Land and water resources constitute a complex, interrelated system. Planning for their wise and beneficial use calls for a unified coor­ dinated effort if the interests of all the people are to be properly served and protected. FOOTNOTES 1. See, 1 H. Farnham, The Law of Waters and Water Rights, 278-342 (1904). 2. A riparian owner is one who owns land touching on the bank of a water­ course. See, Agnor, "Riparian Rights in the Southeastern States," 5 S.C.L.Q. 141, 142 (1952). As between riparian owners, the lower riparian owner is ·of course the one farther downstream. 3. See, e.g., Black, "Basic Concepts in Ground Water Law," 39 American Water Works Association Journal 989 (1947); Foley, "Water and the Laws of Nature," 5 Kansas Law Review 492 (1957); Thompson & Fiedler, "Some Prob­ lems Relating to Legal Control of Use of Ground Waters," 30 American Water Works Association Journal 1052 (1938). 4. Ohrenschall and Imhoff ·, "Water Law's Double Environment: How Water Law Doctrines Impede the Attainment of Environmental Enhancement Goals," 5 Land & Water Law Review 259, 267-8 (1970) [hereinafter cited as "Water Law's Double Environment"]. 5. See generally, Maloney, "The Balance of Convenience Doctrine in the South­ eastern States, Particularly as Applied to Water," 5 S.C.L.Q. 159, 169-70 (1952). 6. See, Hutchins, "Western Water Rights Doctrines and Th~ir Development in Kansas," 5 Kansas Law Review 533, 537-40 (1957). For a criticism of the early development because of its failure to consider the public interest in the resource, see, Mead, Irrigation Institutions 207 (1909). 7. See, Clark and Renard, "The Riparian Doctrine and Australian Legislation," 7 Melbourne Law Review 475, 480-87 (1970). 8. Nine western states follow the appropriation system entirely: Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming. Ten others, while basically following the appropriation system, also have some aspects of the riparian system: California, Kansas, Mississippi, 38 Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Wash­ ington. See, F. Trelease, Cases and Materials on Water La1u 11, 12 (2d ed., 1974). 9. See, 1 Waters and Water Rights 86 (R. Clark, ed., 1967) citing Albaugh v. Mt. Shasta Power Corp., 9 Cal. 2d 751, 762, 73 P. 2d 217 (1937). 10. Lauer, "The Riparian Right as Property," Water Resouraes & the Lcav 133, 208 (Legislative Research Center, University of Michigan Law School, 1958). 11. F. Moss, The Water Crisis 4, 5 (1967) [hereinafter cited as Water Crisis]. 12. Bagley, "Some Economic Considerations on Water Use Policy," 5 Kansas La1u Review 499, 507 . (1957). 13. Model Water Use Act (1958). 14. Hawaii Rev. Lcavs Sections 87A, 87B (1965). 15. Io7.Ja Code Ann. ch. 455A (1971); for an excellent discussion of the con­ stitutionality of Iowa's water regulatory statute see, O'Connell, "Iowa's New Water Statute--The Constitutionality of Regulating Existing Uses of Water," ·47 Io7.Ja Law Review 549 (1962). 16. N.J. Stat. Ann. Section 58:1, 58:4A-2 (1974); Ind. Code Ann. Sections 13- 2-2-1 · through 2-2-13, 13-2-3-1 through 2-3-3 (1975). 17. Miss. Code Ann. Sections 51-3-1 through 5-53 (1972). 18. The· nine states are: Arkansas, Georgia, Florida, Michigan, Mississippi, North Carolina, South ·Carolina, Wisconsin, and West Virginia. For legis­ lative histories of rejections see, F. Maloney, R. Ausness, ,and S. Mor­ ris, A Model Water Code 6 (1972). In addition, the prestigious American Law Institute refused to adopt the prior appropriation approach in its revision of the Restatement of the Law of Torts in 1971. The First Restatement adopted the riparian reasonable use rule. Restatement of · Torts, Section 851 (1934). The Associate Reporter for the revision of Chapter 41 of the Restatement of Torts, Mr. Frank J. Trelease, prepared a proposed draft designed to protect vested uses, thus substituting an appropriation approach for the reasonable use rule of . the First Restate­ ment. Restatement (Seaond) of Torts ch. 41 (Proposed Council Draft . 26B, 1970). This proposal was rejected by the Institute, which instead re­ adopted the riparian reasonable use rule. Restatement (Seaond) of Torts, Section 850A (Tent. Draft No. 17, 1971). In doing so the Institute adopted a list of nine factors for determining reasonableness, including "the protection of existing values of . land, investments and enterprises," thus indicating the Institute recognizes that the fact that a use is an existing use should be an important factor, although still only one of many factors, in determining the reasonableness of the use. Restatement (Seaond) of Torts, Section 850B, Cononent on Clause (h) at 106 (Tent. Draft No. 17, 1971). 39 19. Rejected by Legislative Study Commission. See, Florida Water Resources Study Commission, Florida's Water Resouraes, A Report to the Governor and the 195? Legislature, 14, 15 (1956) [hereinafter cited as Florida's Water Resouraes] . 20. Model Water Use Act, Section 406 and Comment (1958). 21. See, 5 U.S. President's Materials Policy Commission, Resouraes for Free­ dom 94 (1952). 22. Robie, "Some Reflections on Environmental Considerations on Water Rights Administration," 2 Eaology L.Q. 695, 710 (1972); see, E. Clyde and D. Jen­ sen, Administrative Alloaation of Water 41 (National Water Commission Legal Study No. 3, 1971). 23. U.S. Department of the Interior, Central Valley Water Resouraes Study 43 (1970). The policy of disregarding instream values can, of course, be changed by legislation, as has been done by the California Environmental Quality Act of 1970; however, as the Director of the California State Water Resources Control Board has pointed out, Reforms enacted at this time can only be partially effective. Vast quantities of water appropriated between 1914 and the present are being used virtually without limitation. To the extent that such uses have become vested property rights, the Board has only limited authority to alter them. Robie, supra, note 22 at 730, note 183. 24. See, H. Ellis, J. Beuscher, C. Howard, and V. De Braal, Water-Use LaZJ and Administration in Wisaonsin, Section 20.0l(b) (1970). 25. Fla. Laws 1913, ch. 6456, Section 1, at 129. 26. See, Florida Department of Agriculture, "Drainage Districts of Florida," Bulletin 67, New Series 9-14 (1931); see generally, F. Maloney, S. Plager, and F. Baldwin, Water Law and Administration: The Florida ExpePienae, Section 100.1 (1968). 27. Maloney, "Florida's New Water Resources Law," 10 University of Florida Law Review 125, 133 (1957). 28. See, Florida's Water Resouraes, supr~, note 19 at 33, 88. 29. Fla. LaZJs 1949, ch. 25270, at 629. 30. Fla. Laws 1961, ch. 61-691, at 230. 31. See, Florida's Water Resources, supra, note 19, at 14, 15. 32. Fla. Laws 195?, ch. 57-380, at 855. 40 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. Id., Section 8(l)(a), at 858. Id., Section 8(l)(b), at 858. F. Maloney, R. Ausness, and S. Morris, A Model Water Code (1972) [herein­ after cited as Model Water Code]. Fla. Laws 19?2, ch. 72-299; now Fla. Stat., Sections 373.013-373.443 (1975) [hereinafter cited as Water Resources Act]. The 1972 Florida Water Resources Act established the Department of Natural Resources as the State level agency charged with regulation of consumptive use. of water. Fla. Stat., Section 373.019(1) (1975). At that time, a separate state agency, the Department of Pollution Control, was in charge of water quality control. Fla. Stat., Section 403.503(8) (1975). To assure proper coordination of these two water management functions, water use and water quality control, the 1975 Florida Legislature placed both urider a single new environmental agency, the Department of Environmental Regulation. Florida Environmental Reorganization Act of 1975, Fla. Stat., ch. 75-22, Sections 8, 11. Fla. Stat., Section 373.069 (1975). This delegation of authority was made in accordance with Fla. Stat., Sec­ tion 373.216 (1975). The Central and Southern and the Southwest Districts were both created before the State adopted a new Constitution in 1968. Under that Consti ­ tution, no new ad valorem taxes can be levied by the legislature without a favorable referendum vote of the people in the affected area. Since the three northern districts were created after the enactment of the 1968 Constitution, they are · subject to this restriction. A constitutional amendment designed to remove this restriction for water management dis­ tricts was adopted in March, 1976. Meanwhile, the northern districts had to rely entirely on statewide general revenue appropriations for their funding, and the legislature has not been overly generous with them. The first ail valorem taxes were not received by these districts until November 30, 1977. Fla. Stat., Section 373.039 (1975). Id. Fla. Stat., Section 373.036 (1975). Fla. Stat., Section 373.036(4) (1975). Fla. Stat., Section 373.413 (1975). Fla. Stat., Section 373.313 (1975). Fla. Stat., Section 373.036 (1975). 41 48. Id. 49. FZa. Stat., Section 373.036(1) (1975). 50. See, FZa. Stat., Section 23.011 et seq. (1975). 51. Fla. Stat., Section 23.013(3) (1975). However, the legislature has specif­ ically mandated: Fla. 52. Fla. 53. Fla. 54. Fla. 55. Fla. 56. Fla. 57. Fla. 58. Fla. Nothing contained in the plan or parts or revisions thereof shall authorize the implementation of any programs not otherwise authorized pursuant to law. Any part of the plan not otherwise authorized by law shall be subject to review and approval by the legislature as expressed through its acts, both through substantive law and emphasis as con­ tained in appropriation acts. Stat., Section 23.013(2) (1973). Stat., Section 163.3161 (1975). Stat., Section 163.3167(2) (1975). Stat., Section 163.3167(5)(8)(9) (1975). Stat., Section 163.3167(6)(a) (1975). Stat., Section 163.3167(6)(c) (1975). Stat., Section 163.3177(6)(d) (1975). Stat., Section 163. 3177 (2) (1975). 59. The Act defines "land development regulations" to include "any local government zoning, subdivision, building and construction, or other regu­ lations controlling the development of land." Fla. Stat., Section 163.3194(2)(b) (1975). 60. Fla. Stat., Section 163.3194(1) (1975). 61. Fla. Stat., Section 380 et seq. (1975). 62. ALI, A Model La:nd Development Code (1975). 63. Fla. Stat., Section 380.05(1) (1975). The First District Court of Appeal has held the legislature's delegation of this power to be unconstitu­ tional because it violates the requirement for separation of powers. Cross Key Waterways . v. Askew, ~-So. 2d ~-(1st DCA, Fla., 1977). 64. Fla. Sta,t., Section 380.05(2)(a) (1975). 65. Fla. Stat., Section 380.05(2)(b) (1975). 42 66. Fla. Stat., Section 380.05(2)(c) (1975). 67. Fla. Stat., Section 380.05(17) (1975). 68. Fla. Stat., Section 380.05(l)(b) (1975). 69. Fla. Stat., Section 380. 05(5), (6), (8), (11) (1975). 70. A development of regional impact is defined as "any development which, because of its character, magnitude or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county." Guidelines have been developed for determining which develop­ ments qualify. Fla. Stat. ·' Section 380. 06 (2); Fla. Adm. Code, ch. 22F. 71. Fla. Stat., Section 380. 06 (1975). See genera.Uy, Pelham, '*Regula.ting Developments of Regional Impact: Florida and the Model Code," 29 Univer­ sity of Florida Law Review, _ (1977). 72. Fl.a. Stat., Section 380.07(2) (1975). 73. R. Healey, Land Use and the States, 113-16 (1976). 74. Id., at 123-25. 75. The author has been involved in this controversy as a consultant to the South West Florida Regional Planning Council. 76. "Development of Regional Impact A~sessment, The Estuaries," No. 6-7475-5, South West Florida Regional Planning Council, April, 1976. 77. Id.; pp. 28-37. 78. Id., pp. 37, 125. 79. · Estua.ry PI'operties, Ina. v. Bd. of Cty. Comm. of Lee County, Case No. 76-1560, Division of Administrative Hearings, Reconnnended Order, June 20, 1977. 80. Fla. Stat., Section 373.019(5) (1975). 81. Maloney and Flager, "Florida's Lakes: Problems in a Water Paradise," 13 University of Florida .Lca.v Review l, 52 (1960) [hereinafter cited as . "Florida's Lakes"]. 82. See, Model Water Code, supra, note 35, at 171, 72. 83. Rule 16 CA-2.05(2) of S.F.W.M.D. li.sts factors which the Board may con­ sider in determining whether a use is consistent with the public interest. 84. Fla. Stat., Section 373.036(9) (1975). 85. See, "Water Law's Double Environment," supra, note 4, p .. 270; but see, Ore. Rev. Stat., Section 536.340 (Supp., 1971). 43 86. Fla. Stat., Section 373.042 (1975). 87. Id. 88. Fla. Stat., Section 373.042(2) (1975). 89. Fla. Stat., Section 373.036(8) (1975). 90. Fla. Stat., Section 373.246(1)-(6) (1975). 91. Fla. Stat., Section 373. 246 (7)' (8) (1975). 92. Fla. Stat., Section 373.248(3) (1975). 93. Fla. ·Stat., Sections 373.246(8), 373.i19(3) (1975). 94. See, Trelease, "The Model Water Code, the Wise Administrator and the God­ dam Bureaucrat," 14 Natural Resour'oes Journal 207 (1974). 95. See, Model Water Code, supra, note 35, at 192, 93. 96. Fla. Stat., Section 373.246 (1975). Since the declaration is made by administrative order the hearing provisions of· Fla. Stat., Sections 120.20-120.321 (1975) are applicable. · 97. Fla. Admin. Code 4-16K-2.12(2). 98. Fla. Ad.min. Code 4-16K-2.12(2)(b). 99. State Engineer's Office, Water for Nevada, part 2, at 4 (1971); Cal. Admin. Code, Tit. 23, ch. 3, subch. 2, art. 3, Section 666. 100. Fla. Stat., Sections 373.223(3), 373. 036(7) )1975). 101. Fla. Admin. Code 4-16K-30.07 et seq. 102. Fla. Admin. Code 4-16K-31. 04 et seq. 103. See, text at note 36, supra. 104. A Model Water Code, p. 177. 105. Fla. Stat.," Section 373.216 (1975). 106. Id. 107. Id. 108. Taylor v. Tampa Coal Co., 46 So. 2d 392 (Fla., 1950) [hereinafter cited as Taylor]; see, F. Maloney, S. Plager, and F .. Baldwin, Water' l.iCJJJ and Administration: The Florida E:r:perienoe, Section 56 (1968). 44 109. Id. 110. Aaton v. Blundell, 12 M. & W. 324, 152 Eng. Rep. 1235 (1843). 111. . Koch v. Wick, 87 So • . 2.d 47 (Fla., 1956) [hereinafter cited as Koch]. 112. Taylor, supra, note 108. 113. See, Maloney and Plager, "Florida's Ground Water: Legal Problems in Managing a Precious Resource," 22 University of Miami La:UJ Review 751, 769 ·(1967). 114. Id., at 770; see also 3 Farnham, Waters and Water Rights, Section 938 (1904). I 115. Katz v. WalkinshalU, 141 Cal. 116, 70 P 663, aff'd on rehea.Ping, 74 P 766 (1903). 116. Palmer, Water Crop, Appendix G, .Southwest Florida Water Management Dis­ trict, Water Use Plan Draft II (1977). 117. "Florida's Lakes," p. 54; Kates, Georgia Water Law, 38, 39 (1969). 118. Forbell v. City of New York, 164 N.Y. 527, 58 N.E. 664 {1900). 119. Fla. Lai.us 1955, c. 29748, Part I. 120. Fla. La:uJs ·1969, c. 69-106, Sections 25, 35; Fla. Laws 1965, c. 65-409, Section 2; Fla. L(J)J)s 1963, c. 63-336, Section 3; and Fla. Laws 1957, c. 57-380, Section 8. 121. Tilden v. Smith, 94 Fla. 503, 510, 113 So. · 708, 711 (1927). 122. Fla. Laws 1972, c. 72-299, Part VI, Section 1. 123. Fla. Stat., Section 373.223(2) (1975). 124. Koch, supra, note 111. 125. Id. 126. Jupiter Inlet Corp. v. Village of Tequesta, So. 2d (DCA 4th. Fla., 1977), (Case No. 76-783, opinion filed Aug. ~1977) [hereinafter cited as Jupiter Inlet] .. · 127. Case No. 74-2919-CA(L)-Ol-F, Civil Division, Cir. Ct~ 15th Judicial Cir­ cuit, Palm Beach Co., Fla. Order· entered Dec. 12, 1975. 128. Jupiter Inlet, supra, note 126. 129. Id. The exact question certified was: 45 Can a municipality be held responsible through inverse con­ demnation for a taking(, from private ownership for public purposes of underground, shallow aquifer water, to the extent that the owner is deprived of the beneficial use of the aquifer? 130. Fla. Stat., Section 373.226(3) (1975). 131. A Model Water Code, pp. 167, 170. 132. D . . Carr, Death of the sweet Waters (1966); Water Crisis, supra, note 11; J. Wright, The Coming Water Famine (1966). 133. See, e.g., F. Bosselman and D. Callies, The Quiet Revolution in Land Use Control (1971) (available from U.S. Government Printing Office, Washing­ ton, D.C.). 134. Almost all of the books and articles cited supra, notes 83, 84 make this point. 135. See generally, Harris, "Water Allocation Under the Appropriation Doctrine in the Lea County Underground Basin of New Mexico," in The Law of Water AUooation in the Eastern United States 155 (D·. Haber & S. Bergen, eds., 1958). 136. See, Model Water Code, supra, note 35, p. 75. 137. See, N. Wollman, The Value of Water in Alternative Uses (1962)~ 138. See, Model Water Code, supra, note 35. 46 APPENDIX From 1850 until . very recently, water resource development in Florida has been heavily characterized by widespread drainage, flood control and navigation projects. About 1970 it became evident that these large-scale water resource projects should be managed compre~ensively to achieve much broader objectives that include protection and enhancement of water quality, maximum conservation of . water, protection of fish and wildlife, and 0th.er public values. The posi­ tive and negative consequences of past water resource management activities clearly point to the need for an integrated approach to water management. Florida's economy, more than that of most other states, depends directly on . natural resources and environmental quality. · The water policy materials were developed with the assistance of an ad hoc .technical advisory committee, an interagency work group, and a 40-member policy advisory council. The draft element work papers were reviewed in statewide public -meetings held in _September, 1977. The Water Section of the State Comprehensive Plan provides for management strat ­ egy that will enable the state to manage its natural resources wisely and there­ by provide for the long-term economic an~ environmental. health of the state's resi.dents and visitors. The Section identifies the key water management rela­ tionships governing the health and productivity of the natural resource base and formulates policies that will provide maximum long-term benefits by achiev­ ing optimum water quality, water conservation and wise use, enhanced fish and wildlife populations, soil fertility, and both natural and agricultural pro­ ductivity, and other vital social values. In this regard, the Section provides guidance for public and private water-resource development; a basis for execu­ tive and legislative decision-making at all levels of government; a broad framework that local, state, and federal agencies can use in land use and water planning and management; the policy basis for the Florida Water Plan, which will consist of the Water Use Plan and Water Quality Plan; a basis for developing needed legislation; and a basis for the systematic continuation of research, analysis, and problem solving for water management problems in Flor­ ida. WATER OVERALL GOAL - WATER MANAGEMENT Manage water and related resources to achieve maximum economic and environmental welfare for all the state's citizens on a long-term basis. OBJECTIVE A: Watershed Management Through management, provide for reasonable beneficial uses while maintaining, and where appropriate, reestablishing hydrologic rela­ tionships which optimize the percolation and recharge of ground water, the productivity 47 Status Reference WATER of agricultural and natural plant communi­ ties, the protection and enhancement of soil fertility, prevention of erosion, mainte­ nance of optimum soil moisture and protec­ tion of water quality and other public values. POLICIES 1. In substantially unaltered watersheds, maintain runoff/infiltration and other hydro­ logic relationships (soil profile, r 'ate of soil erosion or impoverishments, etc.) to achieve as nearly as .practical the natural hydrologic conditions and to provide for a balance of urban, agricultural, and natural systems recognizing that natural produc­ tivity is optimized under unaltered .condi­ tions. EXECUTIVE DIRECTION, AGENCY RULE - THE DER IN CONJUNCTION WITH THE WMD 's AND APPRO­ PRIATE AGENCIES SHOULD DEVELOP BASIN SPE~ CIFIC DESIGN CRITERIA TO PROTECT THE NATURAL DETENTION AND RETENTION OF SURFACE WATER. BASED ON THE CRITERIA DEVELOPED, APPROPRIATE RULES SHOULD BE DEVELOPED. 2. In disrupted watersheds, restructure runoff-infiltration and other hy~rologic relationships to minimize the effects of physical changes in slope profile; and by the use of best management .techniques, mini­ mize the rate of soil erosion or soil im­ poverishment or other disruptions to the nutrient cycle; and to otherwise provide for a more balanced blend of urban, agricultural, and natural systems recognizing that natural productivity is optimized under unaltered conditions. 3. Use and encourage use of best manage­ ment practices to control runoff, increase water quality and ground-water recharge, enhance soil fertility, and minimize ero­ sion or other adverse effects, while recog­ nizing the constraints caused by existing development. 48 Status Reference M s. 163.3161, F.S. a. 163.3177, F.s. s. 373.036(g), F.S. s. 373.016(2)(a), F.S. s. 403.021(2) ., F.S. s. 403.061(1), F.S. s. 380. 021, F. S. s. 23.012, F.S, s. 582,05, F.S. s. 582.02, F.S. PL 92-500 Sec. 101, Sec. 208 (F) PL 89-90 PL 90-577 PL 74-445 PL 83-566 PL 92-419, Title 1 PL 87-703 C s. 21.012, F.S. s. 163.3177, F.S. s. 373.016(2)(d), F.S. s. 373.036(c, g), F,S. s. 403.021, F.S. s. 403.061, F.S. s. 252.44, F.S. s . 3 80 • 0 21 , F • S • s. 582. 04, F. S. s. 582,05, F.S. s. 582.03, F.S. PL 89-90 PL 91-190 PL 92-500 Sec, lOl(b) PL 74-445 PL 83-566 M s. 23.013, F.S, s. 163.3177, F.S. s, 163.3161, F.S. s. 373.016, F.S. s. 373.036, F.S. s. 403.021, F.S. WATER EXECUTIVE DIRECTION - THE FOLLOWING TECH­ NIQUES SHOULD BE CONSIDERED IN WATER RE­ SOURCE PLANS AND PROGRAMS: ( 1) COOPERATIVE PROGRAMS FOR LAND­ OWNERS (2) DETENTION/RETENTION PRACTICES (3) MINIMIZATION OF IMPERVIOUS SUR­ FACES (4) PROTECTION AND REESTABLISHMENT OF WETLANDS (5) MINIMAL CLEARING OF VEGETATION AND USE OF SEDIMENT BASINS ON CON­ STRUCT ION SITES ( 6) IMMEDIATE REESTABLISHMENT OF NATIVE VEGETATION (7) EMPLOYMENT OF PROGRESSIVE AGRI- CULTURAL MANAGEMENT 'J.1ECHNIQUES STUDY - THE DER SHOULD CONDUCT AN INTER­ DISCIPLINARY STUDY TO DETERMINE ALTERNATIVE USES AND PRACTICES FOR EFFICIENT USE AND CONSERVATION OF INVALUABLE AGRICULTURAL LANDS WITH EMPHASIS ON MUCK.LANDS IN A MAN­ NER COMPATIBLE WITH OPTIMUM WATER AND RE­ LATED RESOURCE MANAGEMENT. Status 4. Ensure that development· does not dimin- M ish the functional values of wetlands, except in cases where assessment of all pertinent factors shows clearly that development is necessary to the public interest and no suitable alternative sites are available. AGENCY RULE - THE DER AND THE WATER MANAGE­ MENT DISTRICTS SHOULD DEFINE THE FUNCTIONAL VALUES OF WETLANDS AND DEVELOP PERFORMANCE CRITERIA AND RULES TO PROTECT THOSE VALUES WHILE ALLOWING COMPATIBLE DEVELOPMENT AND LAND USES. 49 Reference s. 403.061, F.S. s. 380.04, F.S. s. 582.05, F.S. s. 582.02, F.S. s. 582.04, F.S. s. 259. 03, F. S. PL 89-90 PL 92-500 Sec. 101, 208, 314 PL 91-190 PL 74-445 PL 83-566 PL 92-419, Title 1 PL 87-703 PL 90-542 s. 163.3161, F.S. s. 163.3177, F.S. s. 163.205, F.S. s. 163.270, F.S. s. 373.036, F.S. s. 403.021, F.S. s. 403.061, F.S. s. 403.16l(l)(a), F.S. s. 58 2. 05, F. S. s. 380.021, F.S. s. 259.03, F.S. s. 373.016(a), F.S. s. 373.016(b), F.S. s. 373.016(c), F.S. s. 470.02(2), F.S. s. 376.021, F.S. Ch. 17-3.01, F.A.C. Ch. 17-4, F.A.C. PL 90-577 PL 92-500, Sec. 101 PL 92-583 PL 93-234 CS/HCR 2800, 1974 WATER 5. Manage state-owned and state-controlled lands to maximize their value for overall regional management of water and related resources, within the constraints of his­ toric biological communities and existing land uses and where consistent with the state's planned use of the land. PROGRAM - THE DNR, DER, GFC, AND OTHER AGENCIES WITH RESPONSIBILITY FOR MANAGEMENT OF STATE LANDS SHOULD DEVELOP DETAILED MAN­ AGEMENT PLANS FOR STATE-OWNED LANDS AND IMPLEMENT SUCH PLANS THROUGH THE VARIOUS AGENCIES MANAGING STATE-OWNED LANDS. 6. Encourage and require, where necessary, land and water management practices which will maintain and enhance water quality. 7. Design future water management plans and practices to be as fuel efficient and main­ tenance free as practical and wherever prac­ tical utilize the free energy of natural, physical processes and natural systems. 8. Encourage restoration of more natural hydrologic relationships in areas where development activities have significantly and detrimentally altered the natural hydrol­ ogy beyond the extent necessary to support existing development and planned land use. Where practical, ecologically desirable, and where adequate documentation exists, the 50 Status M c c M Reference s. 23.0114, F.S. PL 90-577 s. 373.016, F.S. s. 373.036, F.S. s. 403.021, F.S. s. 380.021, F.S. s. 372.025, F.S. s. 258.36, F.S. PL 89-90 PL 92-500 Sec. 101, 208 PL 91-190 PL 92-583 PL 83-566 PL 90-542 PL 90-454 s. 403.061, F.S. s. 403.021, F.S. s. 163.3177, F.S. s. 163.3161, F.S. s. 23.0114, F.S. s. 373.016, F.S. PL 92-500, Sec. 101, 201, 208 s. 373.036, F. S. · s. 582.05, F.S. PL 89-90 PL 91-190 PL 83-566 PL 92-419 PL 74-445 Ch. 17-3, F. A. C. PL 87-703 PL 90-542 PL 90-577 s. 377.06, F.S. CH. 377, Article II, F.S. s. 3 77. 7 01, F. S. s. 380.021, F.S. PL 92-500, Sec. 201 PL 90-448 s. .23.012, F.S. s. 163.3177, F.S. s. 373.016(2)(a), F.S. s. 373.036(c-g), F.S. s. 403.061, F.S. s. 252.44, F·.S. s. 380.021, F.S. s. 5 8 2-. 04 , F . S • WATER hydrologic conditions which existed prior to modification should be utilized as a gui~e for restoration efforts. EXECUTIVE DIRECTION - THE DER, WMD, AND OTHER MANAGEMENT AND OTHER PLANNING AGENCIES, IN EMPLOYING THE CONCEPT OF APPROXIMATION OF THE HYDROLOGIC RELATIONSHIPS WHICH EXISTED PRIOR TO MODIFICATION AS THE OP­ TIMUM DESIGN CRITERIA FOR THE MANAGEMENT OF GROUND AND SURFACE WATERS AND OTHER HYDRO­ LOGIC RELATIONSHIPS, SHOULD CAREFULLY DIF­ FERENTIATE BETWEEN: (1) AREAS WHICH ARE SO INTENSELY DEVELOPED THAT WATER LEVELS CAN­ NOT BE EVEN PARTIALLY RESTORED AND IN WHICH OTHER TECHNIQUES ARE INAPPLICABLE; ( 2) AREAS WHERE WATER LEVELS CAN BE PARTIALLY RESTORED AND OTHER TECHNIQUES EMPLOYED, AND (3) AREAS WHERE WATER LEVELS CAN BE FULLY RESTORED AND WHERE MANY OTHER TECHNIQUES CAN BE APPLIED. IN ADDITION, THESE AREAS CAN, IN TURN, BE DEVELOPED USING RECENTLY EVOLVED TECHNIQUES FOR INTEGRATING DEVELOPMENT INTO NATURAL AND SEMI-NATURAL ENVIRONMENTS. STUDY - THE DOA, IN CONJUNCTION WITH THE DER AND THE WMD's, SHOULD COMPILE VARIOUS LAND AND WATER MANAGEMENT PLANS AND COORDINATE THE . DEVF)LOPMENT OF MASTER BASIN PLANS WHICH PROVIDE FOR LAND AND WATER MANAGEMENT. OBJECTIVE B: Water Levels Manage areas and recharge of ground water to achieve the natural hydrologic conditions where practical, and where not practical, to provide for a balance of urban, agricultural, and natural systems recognizing that natural productivity is optimized under unaltered conditions. OBJECTIVE C: Pollution Protect ground water from both point and non-point pollution; safe drinking water supplies and matters of human health care are of particular concern. OBJECTIVE D Conserve and use water efficiently as it travels through ground-water systems and maintain adequate supplies of high quality ground water to provide for reasonable 51 Status Reference s. 582.05, F.S. s. 582.03, F.S. PL 89-90 PL 91-190 PL 92-500, Sec. lOl(b) PL 74-445 PL 83-566 WATER beneficial uses, to optimize natural pro­ ductivity and the maintenance and enhance­ ment of water resources. POLICIES 9. Maintain ground-water levels to insure that water levels are not drawn down to such a degree that sustained yield is adversely affected or that natural resource degrada­ tion takes place. EXECUTIVE DIRECTION - THE DER, WMD's AND OTHER RESPONSIBLE AGENCIES SHOULD: (1) IDENTIFY AND PROTECT RECHARGE AREAS; ( 2) PRESERVE OR RESTRUCTURE HYDRO LOGIC RELATIONSHIPS TO MAINTAIN THE NATURAL OR HIGHEST PRACTICAL GROUND-WATER LEVELS; (3) INSTALL OPTIMUM WATER RETENTION CAPABILITY IN CANALS AND DITCHES; ( 4) EMPLOY WATER DETENTION/RETENTION AND OTHER PROGRAMS WHICH INCREASE PERCOLATION IN RECHARGE AREAS. 10. Manage water, wastewater, and land use to protect and enhance the quality of ground water. 11. Protect ground-water supplies from salt ­ water intrusion by the maintenance of a suf­ ficient amount of ground water in coastal aquifers to prevent intrusion through regu­ lation of withdrawals, maintenance of ade­ quate recharge, and sufficient controls on coastal canals. 12. Protect and maintain ground-water sup­ plies and aquifer recharge areas through water- and land-management practices and, where necessary, through regulation of development activities. 52 Status Reference M s. 373.106, F.S. s. 23.012, F.S. s. 163.3161, F.S. s. 163.3177, F.S. s. 373.016(2)(a), F.S. s. 373.016(2)(b), F.S. s. 373.016(2)(c), F.S. s. 373.036, F.S. s. 403.021, F.S. s. 380.021, F.S. s. 380.05, F.S. s. 259. 03, F. S. PL 89-90 PL 83-566 C s. 23.012, F.S. c s. 163.3161, F.S . . s. 163.3177, F.S. s. 373.016(a, b), F.S. s. 373.036, F.S. s. 403.161, F.S. s. 403.021, F.S. s. 403.061, F.S. s. 380.021, F.S. PL 92-500 Sec. 101, 201, 208 CS/HCR 2800, 1974 PL 90-577 s. 259.03, F.S. s. 163.205, F.S. s. 373.016(2), F.S. s. 373.033, F.S. Ch. 373, Parts II, III, and IV, F.A.C. s. 259.03, F.S. s. 370.02(3), F.S. PL 92-500 Sec. 208(2)(a) M s. 163.3161, F.S. s. 163.205, F.S. s. 163.270, F.S. s. 373.016(2)(a, b), F.S. s. 373.036, F.S. WATER Status Reference EXECUTIVE DIRECTION - THE DER, WMD 's AND OTHER RESPONSIBLE AGENCIES SHOULD ENCOURAGE DEVELOPMENT TECHNIQUES WHICH PRESERVE THE INFILTRATION RATES AND QUANTITIES WHICH MAINTAIN THE NATURAL OR HIGHEST PRACTICAL GROUND-WATER LEVELS AND DISCOURAGE DRAIN­ AGE AND OTHER ACTIVITIES WHICH COULD DIMINISH STORAGE OR RECHARGE AREAS. s. 380.021, F.S. s. 23.012, F.S. s. 163.3177, F.S. 13. Discourage the alteration of ground­ water discharges that would adversely affect , surface water and related resources. c 14. Allow alteration of ground-water move- M ments within or between aquifers only where it can be shown that such alterations are not harmful to surface and ground-water resources. STUDY, AGENCY RULE - THE DER, WMD 's AND OTHER APPROPRIATE AGENCIES SHOULD DEVELOP PERFORMANCE CRITERIA AND RULES FOR DRAIN­ AGE, IRRIGATION, CONNECTOR, INJECTION, AND PRODUCTION WELLS TO PREVENT ADVERSE EFFECTS FROM GROUND-WATER WITHDRAWALS. s. s. s. s. s. s. OBJECTIVE . E: Surface Water and Floodplain Management Manage surface waters to allow for reasonable beneficial uses while maintaining and, where necessary, reestablishing natural water resource and biological relationships to proviqe for a balance of urban, agricultural, and natural systems recognizing that natural productivity is optimized under unaltered conditions. POLICIES M s. s. s. 373.016(2)(a, 373.036, F.S. 380.021, F.S. 373.016(2)(b), 373.036, F.S. 380.021, F.S. 23.012, F.S. 163.3161, F.S. 163.3177, F.S. b), F.S. F.S. 15. Manage surface waters to accomplish the multiple objectives of flood control, navigation, recreation, water supply, and biological productivity in a manner which provides for a balanced mix of urban, agri ­ cultural, and natural systems. s. 373.016(2), F.S. EXECUTIVE DIRECTION - THE DER AND WMD 's SHOULD PERIODICALLY REVIEW EXISTING REGU­ LATION SCHEDULES AND FLOOD CONTROL CRI­ TERIA. 53 s. s. s. s. PL PL PL PL PL PL s. 373.036, F.S. 403.021, F.S. 380.021, F.S. 298.74, F.S. 89-90 92-500 Sec. 101, 201, 208 91-190 83-566 87-703 90-542 373.042, F.S. WATER 16. Manage surface waters to maintain sea­ sonal water level fluctuations and other­ wise provide for enhanced nutrient uptake, environmental quality, and the protection and enhancement of vital estuarine produc­ tivity. STUDY - RESEARCH SHOULD BE UNDERTAKEN TO DETERMINE THE FRESHWATER NEEDS IN SELECTED ESTUARIES IN ORDER TO ASSESS THE ASSOCIATED MANAGEMENT NEEDS AND OPPORTUNITIES. 17. Manage surface waters to maintain seasonal water level fluctuations and op­ timize the extent and vigor of emergent aquatic vegetation to improve water quality, fish and wildlife, and other benefits. EXECUTIVE DIRECTION - THE DER, WMD's, AND GFC SHOULD EVALUATE THE STAGE AREA CURVES AND BIOLOGICAL DATA TO DEVELOP WATER FLUC­ TUATION REGIMES WHICH PROVIDE FOR OPTIMUM LITTORAL AREA WITHIN CONSTRAINTS IMPOSED BY WATER CONSERVATION AND OTHER REQUIREMENTS. 18. Protect the natural values and func­ tions of wetlands to insure the maintenance and enhancement of water quality, water con­ servation and other values. 54 Status Reference M s. 23.012, F.S. s . 163.3161, F.S. s. 163. 3177, F.S. s. 373.016 (2), F.S. s. 373.036, F.S. s. 403.012, F.S. s. 370.02(2)(a), F.S. s. 380.021, F.S. PL 92-500 Sec. 101, 201, 208 PL 92-583 PL 90-577 PL 90-542 PL 90...:190 M s. 23.012, F.S. s. 163.3177, F.S. s .. 163.3161, F.S. s. 373.016(2)(e), F.S. s .. 403.161 (1)(a), F.S; s. 373.036, F.S. s. 582.05, F.S. PL 90.:...577 PL 83-566 PL 92-500, Sec. 101 PL 85-624 C s. 23.012, F.S. s. 163.3161, F.S. s. 163.3177, F.S. s. 163.205, F.S. s. 163.270, F.S. s. 373.016(2), F.S. s. 373.036, F.S. s. 403.021, F.S. s. 403.061, F.S. s. 403.16l(l)(a), F.S. s. 380.021, F.S. s. 376.021, F.S. s. 470.02(2), F.S. Ch. 17-3.01, F.A.C. Ch. 17-4, F.A.C. PL 83-566 PL 90-448 PL 91-190 PL 92-500, Sec. lOl(b) PL 89-90 PL 92-583 PL 90-577 WATER 19. Encourage the use of non-structural means to prevent flood damages within the constraints of existing land use. Where structures exist and are shown to produce undesirable effects, consider the replace~ ment of structures with non-structural methods where practical. However, where structures are appropriate to restore hydrologic relationships, they should be employed. 20. Avoid the drainage of wetlands for agricultural, commercial, or urban uses unless it can be shown that such drain.age on private property will not adversely affect public values and encourage uses which will not adversely affect the values and . functions of wetlands. 21. Avoid development in floodplains which would decrease water storage or flood con­ veyance capacity, or otherwise increase the potential for flood damages, including dredge and fill, except in cases shown by assessment of all pertinent factors to be clearly in the overall public interest. EXECUTIVE DIRECTION - THE DCA IN ADMINIS­ TERING THE NATIONAL FLOOD INSURANCE PROGRAM SHOULD ENCOURAGE LOCAL GOVERNMENTS TO DEVELOP FLOOD PLAIN REGULATIONS WHICH IN­ CLUDE: (1) FIRST FLOOR ELEVATIONS orALL STRUCTURES SHOULD BE AT OR ABOVE THE LEVEL OF A 100-YEAR FLOOD, (2) THE FLOODWAYS SHOULD NOT BE FILLED OR BLOCKED, (3) ROADS, BRIDGES, AND OTHER STRUCTURES SHOULD BE DESIGNED TO A VOID ADDITION AL LEVELS OF FLOODING. PROGRAM - WHERE APPROPRIATE, THE WMD 's, CORPS OF ENGINEERS, AND THE DCA SHOULD PRE­ PARE AND DISSEMINATE CONTINGENCY PLANS TO PROTECT LIFE AND PROPERTY DURING THE OCCUR­ RENCE OF A ONE-IN-ONE-HUNDRED-YEAR STORM. 55 Status Reference C PL 93-251 PL 90-448 s. 373.016, F.S. s. 380.021, F.S. s. 163.205, F.S. s. 163.270, F.S. s. 370.06, F.S. S1o 377.703, F.S. C s. 373.036, F.S. s. 373.016, F.S. s. 403.021, F.S. s. 380.021, F.S. s. 259.03, F.S. s. 582.04, F.S. PL 89-90 PL 92-500, Sec. 101 PL 91-190 PL 92-583 PL 93-234 CS/HCR 2800, 1974 M s. 163.3161, F.S. s. 163.3177, F.S. s. 163.205, F.S. s. 163.270, F.S. Ch . 2 5 2 , F . S . s. 403.021, F.S. s. 373.016(2)(d), F.S. s. 373.036, F.S. s. 380.021, F.S. Ch. 17-3, F.A.C. Ch. 17-4, F.A.C. PL 93-234 PL 83-566 PL 90-577 WATER 22. Protect the water quality and functions of water bodies from degradation by the pumping or transfer of nutrients and/or pol­ lution in quantities which cannot be assimi­ lated by receiving waters. EXE CUT IVE DIRECT ION - THE WMD 's AND DER SHOULD UTILIZE RESTORATION DRAWDOWNS, RE­ TENTION AREAS, ROUTING OF WATER THROUGH WETLANDS FOR TREATMENT, AND OTHER WATER MANAGEMENT TECHNIQUES TO PRECLUDE WATER QUALITY DEGRADATION. 23. Include in water resource restoration programs, comprehensive management and regu­ lation of the affected watershed to enhance water quality, water conservation, and environmental quality. OBJECTIVE F: Wastewater Management Eliminate discharge of inadequately treated wastewater and poor quality stormwater ~o the waters of the state as rapidly as pos­ sible in a manner which emphasizes recycle and is both cost-effective and conservative of water, nutrient and energy resources. POLICIES 24. Recognize wastewater as a valuable resource and establish the goal of recycling and reuse of wastewater, tail-water, and stormwater consistent with energy-conserva­ tion objectives, existing development, main­ tenance of the integrity of natural ecosys­ tems to the extent practical. EXECUTIVE DIRECTION - THE .DER SHOULD INCOR­ PORATE IN ITS ANNUAL STATE WORK PLAN (SEC­ T ION 106), THE FOLLOWING: (a) A STATEMENT OF OVERALL STATE CON­ STRUCTION GRANT PROGRAM GOALS AND OBJECTIVES; (b) A PROGRAM FOR SOLUTION OF WATER POL­ LUTION PROBLEMS DELINEATING HOW AND WHEN EACH WILL BE ADDRESSED; AND 56 Status Reference M s. 23.012, F.S. s. 163.3161, F.S. s. 163.3177, F.S. s. 373.016(2), F.S. s. 403.021, F.S. s. 380.021, F.S. s. 373.036, F.S. s. 403.161, F.S. PL 92-500, Sec. 201, 208 PL 91-190 PL 90-577 CS/HCR 2800, 1974 c s. 23.012, F.S. s. 373.016, F.S. s. 373.036, F.S. s. 403.021, F.S. s. 380.021, F.S. s. 582.05, F.S. PL 89~90 PL 91-190 PL 74-445 PL 33.:..566 PL 90-454 M s. 377.06, F.S. Ch. 377, Article II, F.S. s. 377.701, F.S. s. 380.021, F.S. PL 91-190 PL 92-500, Sec. 20l(d) WATER (a) A STATEMENT OF THE FUNDS A VAIL­ ABLE FOR ·PROJECTS IN RELATION TO NEEDS. STUDY - THE DER IN CONJ[fNCTION WITH EPA· SHOULD CONDUCT RESEARCH INTO ALTERNATIVE WASTEWATER TREATMENT METHODS SUCH AS LAND­ SPREADING, SEPI!IC TANKS, THE USE OF WET­ LANDS FOR WASTEWATER TREATMENT, AND RELATED QUESTIONS. EXPERIMENTAL SYSTEMS SHOULD BE ESTABLISHED AND MONITORED WHEREVER POSSIBLE. STUDY - . THE DER SHOULD DEVELOP PRACTICAL MEANS AND ALTERNATIVES FOR RECYCLING AND REUSE OF WASTE AND STORMWATER. BUDGET - THE DER SHOULD PLACE PRIORITY EMPHASIS ON SEEKING EPA GRANTS FOR PROJECTS THAT EMPHASIZE RECYCLING AND REUSE OF WASTE­ WATER AS DESCRIBED IN SEC. 20i(d) PL 92-500. 25. Encourage the allocation of funds for wastewater treatment to eliminate existing water quality problems before .providing for additional development to the extent prac­ tical. EXECUTIVE ·DIRECTION - THE DER, IN COOPERA­ TION WITH EPA, SHOULD PERIODICALLY REVIEW PRIORITIES TO PROVIDE FOR A GREATER ALLO­ CATION OF FUNDS TO AREAS WHERE WATER QUALITY . PROBLEMS ARE MOST SEVERE. 26. Implement comprehensive management on all surface water bodies which are signifi ­ cantly polluted by wastewater. 27. Establish flexible wastewater manage­ ment techniques and regulations to facilitate the use of natural systems for wastewater treatment in a manner which does not signif­ icantly impact natural systems. 57 Status Reference M s. 23.0114, F.S. s. 163.3161, F.S. s. 403.021, F~S. s. 403.061, F.S. s. 380.021, F.S. PL 92-500 Sec. 101, 201 Ch. 17-3, F.A.C. Ch. 17-4, F.A.C. PL 90-454 PL 93-523 PL 92-583 C Ch. 298, F.A.C. s. 23. 012, F. S. s. 163.3161, F.S. s. 163.3177, F.S. s. 403.012, F.S. s. 373.016, F.S. s. 373.036, F.S. s. 380.021, F.S. Ch. 17-3, F.A.C. Ch. 17-4, F.A.C. PL 92-500 Sec. 101, 201, PL 83-566 208 c s. 403.061(14), (20)' s. 380.021, F.S. s. 403.021, F.S. PL 92-500 Sec. 201(d) s. 373.016, F.S. PL 91-190 PL 90-448 F.S. WATER 28. Evaluate wastewater treatment and dis­ posal methods on a case-by-case and on a regional basis to insure the least damage to the water resource in each particular case. 29. Support continued research and pilot projects for use of non-structural alter­ natives for wastewater management and water quality enhancement. 30. Recognize the possibility that high nutrient levels in rainfall in some areas of the state may be due to certain types of air pollution and support the development of techniques to eliminate or minimize such pollution. STUDY - DER SHOULD INVESTIGATE THE PROB­ LEM OF HIGH NUTRIENT LEVELS IN RAINFALL. OBJECTIVE G: Water Supply, Water Use, and Water Conservation Provide water for reasonable beneficial uses, existing development, demonstrated future water needs, and to protect and enhance ecological systems though comprehensive water storage and conservation programs, particularly where current or potential water supply problems exist. POLICIES 31. Utilize water and land management prac­ tices and programs which retard runoff and enhance percolation to increase the quantity and protect the quality of ground water. 58 Status Reference C s. 163.3161, F.S. s. 163.3177, F.S. s. 373.016, F.S. s. 373.036, F.S. s. 380.021, F.S. .. DER's Annual State Work Plan - Section 106 PL 92-500, Sec. 201 s. 403.021, F.S. s. 403.061(16), F.S. Ch. 17-3, F.A.C. Ch. 17-4, F.A.C. C s. 373.026(1), F.S. s. 373.1965(f), F.S. s. 240.001, F.S. s. 370.02(2)(a), F.S. s. 403.061(21), F.S. s. 377.703, F.S. PL 92-500 Sec. 20l(d) M s. 23~0114, F.S. s. 23. 012, F. S • c s. 163.3161, F.S. s. 163.3177, F.S . . s. 373.016, F.S. s. 373.036, F.S. Ch. 403, F.S. s. 380.021, F.S. PL 92-500 PL 93-523 PL 91-190 s. 23.012, F.S. s. 163.3161, F.S. s. 163. 3177' F.S. s. 403.021, F.S. s. 403.061, ;F. s. s. 373.016(2)(a, b), F.S. WATER 32. Manage ground water to insure that water levels are not drawn down to such a degree that yield is adversely affected or that resource degradation takes place. AGENCY RULE - THE DER AND WMD's SHOULD ESTABLISH MINIMUM LEVELS OF GROUND WATER AND MINIMUM FLOWS FOR SURFACE WATER BY RULE. 33. Maintain the highest practical surface water levels and water level fluctuations to provide for reasonable beneficial uses and to provide for a balance of urban, agricultural, and natural systems. 34. Insure that water management proj­ ects are designed and operated to mainta~n and enhance natural systems as well as the systems of man. EXECUTIVE DIRECTION - THE DER:J WMD's AND DOA SHOULD INCLUDE WATER REQUIREMENTS FOR 59 Status s. s. s. s. s. s. PL PL PL PL PL M s. s. s. s. s. s. s. s. PL PL Ch. s. c s. s. s. s. s. s. s. s. s. s. PL PL PL PL PL PL Reference 373.036, F.S. 380.021, F.S. 582.05, F.S. 582.03, F. S. 582.04, F.S. 259.03, F.S. 92-500 Sec. 101, 208 83-566 74-445 93-523 90-577 23.012, F.S. 163.3161, F.S. 163. 3177, F. S. 373.016(2)(a, b, F.S. 373.036, F.S. 403.021, F.S. 380.021, F.S. 259.03, F.S. 89-90 83-566 373, Parts II, IV, F.S. 373.042, F.S. 23.012, F.S. 163.3161, F.S. 373.102(4), F.S. 163.3177, F.S. 373.016(2), F.S. 373.036, F.S. 373.042, F.S. 403.021, F.S. 380.021, F.S. 298.74, F.S. 89-90 92-500, Sec. 101 91-190 83-566 87-703 90-542 & e), III, & M s. 23.012, F.S. s. 163.3161(3), F.S. s. 163.3177, F.S. s. 373.016, F.S. s. 373.036, F.S. s. 373.026(8, 9), F.S. CS/HCR 2800, 1974 WATER NATURAL SYSTEMS IN ALL APPLICABLE PLANS AND PROGRAMS. 35. Utilize local water resources to the greatest degree that is economically and environmentally feasible before considering interdistrict, interbasin, and other large scale transfer of water. Subject to rea­ sonable regulation, proposals for the trans­ fer of water should be reviewed and evalu­ ated by appropriate state, regional, and local agencies having jurisdiction. The determination process, as required by law, should include at least the following minimum criteria to determine whether or not the proposed transfer is in the overall public interest. - (A) A comprehensive water conservation, reuse, and management program should be initiated in the area of need. Present water shortages result mostly from non­ essential uses of water during dry season and drought conditions. Local governments should take effective steps to increase the use of native and other water-conserving vegetation and to curtail non-essential uses during the dry season ·and drought. Local governments and water utilities in areas of water shortages should undertake systematic water conservation and reuse programs including local codes and ordi­ nances which require the use of water saving fixtures, equipment, and systems. Such steps should include but .not be limited to: (1) system leakage tolerances should be incorporated and monitored, (2) agri ­ cultural irrigation practices, (3) indus­ trial water uses, (4) retrofitting of water saving devices, and (5) plumbing regulations which conserve water manually. Inverted or amended rate structures should be applied during periods of water shortages and should 60 Status M Reference PL 93-251 PL 92-500, Sec. 201 PL 91-190 s. 380.021, F.S. PL 89-90 PL 85-624 PL 92-583 PL 90-454 PL 83-566 PL 89-72 s. 23.012, F.S. s. 163.3161(2, 3), F.S. CS/HCR 2800, 1974 s. 403.805, F.S. s. 163.3177, F.S. s. 373.016(2), F.S. s. 373.036, F.S. s. 380.021, F.S. s. 403.021(2), F.S. PL 90-577 PL 92-500, Sec. 101-(b) PL 74-445 PL 87-703 PL 91-190 WATER be structured to result in water conserva­ tion. Local land use plans, pursuant to the Local Government Comprehensive Planning Act, should reflect present and future needs for water, the value of wetlands, recharge ar~as, optimum ground-water levels, optimum retention capability in drainage systems, and other applicable methods to increase water supplies and management. (B) A complete analysis of environmental impacts, the present and future water needs of potential supplying areas, and other im­ pacts of water transfer should be conducted and environmental and economic costs esti ­ mated for both the supply and receiving areas. (C) A comprehensive i.nvestigation should determine all costs and benefits for both the supply and receiving areas. Analysis should determine the costs . of construction and operation of the transfer fa~ilities and all environmental and other costs. (D) Once all cos.ts and benefits have been quantified to the greatest practical degree, equitable financing of transfers should be developed to insure that environ­ mental and other costs are fully recognized and equ·i tably financed. {E) Evaluation and regulatory procedures should avoid the use of artificial boundary or quantity restraints but, rather, should evaluate each case on the basis of its ef­ fect on water resources and the overall public interest. Analysis should include a comparison of long--term positive and negative economic. and environmental impacts of water importation for both the supply- ing and the receiving areas, increased growth and increased costs of vital public services as a result of increased growth with impacts associated with urban sprawl, infrastructure relocation and expansion and the imposition of growth management con­ siderations. Deliberations should fully incorporate the positions of all affected governmental jurisdictions and the public. AGENCY RULE - THE DER AND WMD 's SHOULD ADOPT A UNIFORM SET OF RULES WHICH DEFINE A "WATER 61 Status Reference WATER TRANSFER.," PROVIDE FOR APPROPRIATE DELEGA­ TION OF AUTHORITY., AND PROVIDE FOR AN ORDER­ LY INFORMATION GATHERING., REPORT WRITING AND DECISION MAKING PROCESS IN ACCORDANCE WITH THE CRITERIA AND PROVISIONS OF THE POLICY. 36. Encourage the supply of water i n quan­ tities which would not result in the destruc­ tion or degradation of natural systems, other water related resources, or values which are vital to the long-term public interest. STUDY - THE WMD's., WITH THE ASSISTANCE OF APPROPRIATE STATE AND FEDERAL AGENCIES., UNIVERSITIES., LOCAL GOVERNMENTS., AND RPA 's., SHOULD DETERMINE THE WATER SUPPLY WHICH CAN BE PROVIDED FOR REASONABLE BENEFICIAL USE IN ANY GIVEN AREA WITHOUT RESOURCE DESTRUC- T ION OR DEGRADATION. THIS INFORMATION SHOULD BE PERIODICALLY UPDATED. 37. Water management planning should recognize that the availability and co s t of energy supplies, now and in the f uture, could set limits on the quantity of water that can be drained from or supplied t o an area and the extent that water treatment can be depended upon to improve water qual ­ ity. EXECUTIVE DIRECTION., AGENCY RULE - THE DOA AND THE DER SHOULD DEVELOP CRITERIA FOR USE BY MANAGEMENT AGENCIES IN THE PERFORMANCE OF LONG-TERM ENERGY ANALYSES ON PROPOSED MANAGEMENT ACTIVITIES. IMPLEMENTING AGENCIES SHOULD TAKE APPROPRIATE ACTION TO INSURE MINIMUM ENERGY COMMITMENTS. 38. Encourage the captur e , use , and r euse of runoff water and other relatively l ow quality water supplies to the extent pr ac­ tical for uses which do not r equir e high quality water before using ground water . 62 Status M M M Reference s. 373.175, F.S. s . 373 . 223(3), F.S. s. 23.012, F.S. s . 23.0114, F.S. s . 163. 3161 (3), F.S. s. 163. 317-7, .F.S. s. 163. 205, F.S. s . 163'. 270, F.S. s . 373.042, F.S. s. 380. 021, F.S. s . 298.74, F.S. PL 92-500, Sec. lOl(b) PL 91-190 PL 92-583 PL 90-577 s. 23.012, F.S. s. 23 .014, F.S. s . 373 . 016, F.S. s . 373.036, F.S. s . 380'.021, F.S. s. 403.021, F.S. s. 377.703, F.S. CS/HCR 2800, 1974 PL 91-190 PL 92-500, Sec. 201 s. 163.3161, F.S. s. 163.3177, F.S. s. 373 . 016(2)(a)(b)(c), s. 373.036(a, e), F.S. s. 380.021, F.S. Ch. 373, Parts II, III, s. 582.05, F.S. PL 89-90 PL 92-500, Sec. lOl(b) PL 90-577 PL 74-445 PL 83-566 F.S. & IV WATER 39. Undertake an inventory and classifi ­ cation of the water resources of the state and, to the extent practical, develop a standard methodology to allow the quan­ titative projection of the amount of water available for present and future conditions. EXECUTIVE DIRECTION, STUDY - A STANDARD METHODOLOGY SHOULD BE DEVELOPED BY THE DER AND THE WMD 's TO ACCOMPLISH A STATEWIDE INVENTORY AND CLASSIFICATION OF WATERS. THE SUSTAINED YIELD OF WATER SHOUUJ BE QUANTI­ TATIVELY DETERMINED FOR ALL FEASIBLE CONDI­ TIONS TO DETERMINE THE AMOUNT AVAILABLE FOR REASONABLE BENEFICIAL USES WITHOUT RESOURCE DEGRADATION. OBJECTIVE H: Legal and Administrative Policy Implement, through substantive laws, execu­ tive orders, agency rules, and other relevant mechanisms, the goals, objectives,~nd policies of the Water Section of t~ State Comprehensive Plan, provide for the incor­ poration of goals, objectives, and policies set forth herein into all state and local activities. OBJECTIVE I Provide for coordination between land-use and water resources planning to avoid con­ flicting management objectives. OBJECTIVE J Coordinate and facilitate water resources management, funding, planning, research, regulation, and enforcement, at all levels of government and provide the technical information and assistance necessary for local governments to develop sound land­ us e planning, zoning and other management actions. 63 Status M Reference s. 403.021, F.S. s. 380.021, F.S. s. 582.05, F.S. s. 259.03, F.S. PL 89-90 PL 92-500, Sec. lOl(b) PL 83-566 PL 90-577 PL 87-703 Ch. 298, F.S. s. 373.016, F.S. s. 373.023(3), F.S. s. 373.036, F.S. PL 92-500, Sec. 101 PL 89-90 WATER OBJECTIVE K Evaluate management proposals to the extent practical within a clear understanding of the hydrology and ecology of the particular basin or sub-basin involved. OBJECTIVE L Develop interstate agreements and programs for coordinated management of watersheds which reside partly in Florida and partly in Georgia and Alabama. OBJECTIVE M The financing and fiscal management of water allocation, water projects and water management should be based on the concept of beneficiary pays to the extent practical. OBJECTIVE N Provide for the integrated management of water quality and water quantity at all levels of government. POLICIES 40 . Develop guidelines and a methodology which provide a clearer test of what consti ­ tutes a "reasonable beneficial use." EXECUTIVE DIRECTION - LEGAL RESEARCH SHOULD BE CONDUCTED BY DER AND THE WMD's IN CON­ JUNCTION WITH THE DLA TO DEFINE "REASONABL BENEFICIAL USE. " PROVISION MUST BE MADE FOR A CLEAR TEST OF WHAT CONSTITUTES A "REASONABLE BENEFICIAL USE, " INCLUDING ANY POSSIBLE REGIONAL VARIATIONS . ONCE GUIDE­ LINES ARE DEVELOPED, APPROPRIATE LEGISLA­ TION AND RULES SHOULD BE DEVELOPED, ADOPTED, AND IMPLEMENTED. 41. Develop, to the extent practical, a standard methodology to allow the equitable allocation of water and which adequately con­ siders future as well as present water sup­ ply needs while maintaining sufficient flexibility to provide for regional dif­ ferences. EXECUTIVE DIRECTION, STUDY - THE DER, WMD 's, AND OTHER APPROPRIATE AGENCIES SHOULD UTILIZE THE FOLLOWING CRITERIA TO DEVELOP A STANDARD METHOD TO ALLOW THE QUANTITATIVE INVENTORY 64 Status Reference M Ch. 373, F.S. M s. 373.016, F.S. s. 373.023, F.S. s. 373.036, F.S. PL 92-500, Sec. 101 PL 89-90 WATER AND EQUITABLE ALLOCATION OF WATER IN THE PUBLIC INTEREST: (A) PROVISION OF AS MUCH WATER AS ANY SPECIFIC REGION CAN YIELD FOR "REASONABLE BENEFICIAL USES" WITHOUT SUSTAINING RE­ SOURCE DEGRADATION; (BJ EFFICIENT AND EQUITABLE ALLOCATION OF THAT AMOUNT OF WATER TO LANDOWNERS, NATURAL SYSTEMS, AND TO SATISFY OTHER WATER NEEDS, SUCH AS MUNICIPAL WATER SUPPLY, WHICH ARE IN THE PUBLIC INTEREST BUT WHICH CANNOT EASILY BE MET THROUGH AN ALLOTMENT BASED UPON LAND OWNERSHIP; (CJ PROTECTION OF WATER QUALITY; ( D) PROTECTION OF WATER RESOURCES, SOIL FERTILITY, THE WATER COURSE, FISH AND WILDLIFE AND OTHER RELATED RESOURCES; AND (E) MAINTENANCE OF MINIMUM FLOWS FOR SURFACE WATERS AND MINIMUM LEVELS FOR GROUND WATER AND, WHENEVER PRACTICAL, WATER TABLE AQUIFER LEVELS SHOULD BE MAINTAINED AT LEVELS WHICH SUPPORT THE MAXIMUM PRO­ DUCTIVITY OF NATURAL SYSTEMS. Status 42. Recognize the basic interrelationship M between land and water resource management. EXECUTIVE DIRECTION - WATER MANAGEMENT POLICY AND RECOMMENDATIONS FROM THE WATER ELEMENT, THE WATER USE AND QUALITY PLANS, THE FLORIDA WATER PLAN AND .OTHER APPROPRIATE PLANS SHOULD BE FULLY UTILIZED IN LAND-USE PLANS. 43. Encourage local governments to plan the location and timing of new development in a manner consistent with the State Comprehen­ sive Plan and, as developed, the Water Use Plan, the Water Quality Plan, and the Florida Water Plan. 65 c Reference s. 23.0114, F.S. s. 23.012, F.S. s. 163.3161, F.S. CS/HCR 2800, 1974 s. 373.016, F.S. s. 380.021, F.S. s. 582.05, F.S. PL 89-90 PL 92-500, Sec. 101 PL 74-445 PL 92-583 PL 83-566 Principles & Standards 38 FR 24778 - 1973 s. 23.0114, F.S. s. 163.3201, F.S. s. 163.3161, F.S. s. 163.165, F.S. s. 373.016, F. S. s. 373.036, F.S. s. 403.061, F.S. s. 380.021, F.S. s. 165.021, F.S. WATER 44. Seek to resolve, as expeditiously and as equitably as practical, the legal issues which may arise when water levels are, in many areas, elevated above present levels to optimize water supply, water quality, and other public values. EXECUTIVE DIRECTION - THE DER AND WMD's, IN CONJUNCT ION WITH THE DLA, SHOULD DEVELOP AN APPROACH TO AVOID PROTRACTED AND COSTLY LITIGATION OVER THE ELEVATION OF WATER LEVELS. STUDY - THE DER AND WMD 's SHOULD DEVELOP CRITERIA THAT ALLOW THE EVALUATION OF WATER LEVEL ELEVATIONS AND METHODS. 45. Insofar as is practicable and adminis­ tratively feasible, the identifiable bene­ ficiaries of water project services should bear appropriate shares of development and operating costs. EXECUTIVE DIRECTION - THE DOA, DER, AND THE WMD's SHOULD INVESTIGATE METHODS FOR IDENTIFYING THE BENEFICIARIES OF WATER PROJECT SERVICES AND THE LEVEL AND COL­ LECTION OF APPROPRIATE CHARGES. 46. Plans should be developed and procedures adopted which provide water users with advance knowledge of regulatory practices to be imposed in water shortages and emergency situations. EXE CUT IVE DIRECT ION - THE DER AND THE WMD 's SHOULD INSURE THAT THE PROVISIONS OF CHAP­ TER 373, F. S., ARE CARRIED OUT IN ALL AREAS WHERE A WATER SHORTAGE EXISTS. THE WMD 's SHOULD DEVELOP AN INFORMATION DIS­ SEMINATION PROGRAM TO INFORM ALL WATER USERS WITHIN EACH DISTRICT OF EMERGENCY PROCEDURES PRIOR TO DECLARATION OF A WATER SHORTAGE. 66 Status Reference s. 163. 03, F. S. s. 125.01, F.S. s. 334.02(3), F.S. PL 90-577 PL 90-448 PL 92-583 PL 89-90 M Ch. 373, F.S. M M s. 380.021, F.S. Ch. 3 72 , F. S • Ch. 403, F.S. PL 91-190 PL 92-500, Sec. 208 Ch. 373, F.S. s. 373.026, F.S. s. 380.021, F.S. s. 23.0114, F.S. s. 403.021, F.S. PL 91-190 PL 92-500, . Sec. 101 Ch. 298, F.S. PL 89-90 s. 373.016, F.S. s. 373.026(4), F.S. s. 373.175, F.S. s. 380.021, F.S. PL 89-90 PL 91-190 WATER Status Reference OBJECTIVE 0: Water Resource Project Evalua t ion Conduct water resource project eval uation and analysis which encourages the devel op- ment of highly integrated and op t imum regional water management systems f or water quality, water conservation, and wise use i n the overall public interest. POLICIES 47. Develop and periodically upda t e spe­ cific guidelines and the capability of per­ forming and reviewing engineering and eco­ nomic analyses of water resource project s . STUDY/EXECUTIVE DIRECTION - THE DOA IN CLOSE CONJUNCTION WITH THE DER AND THE WMD ' s SHOULD PREPARE A MANUAL DETAILING SPECIFIC REQUIREMENTS TO BE MET IN PERFORMING OR REVIEWING THE ECONOMIC ANALYSES OF WATER RESOURCE PROJECTS. THIS PROCESS SHOULD DEFINE ALL RELEVANT COSTS_, BOTH MONETARY AND NON-MONETARY SHOULD INCLUDE THE NECES­ SARY INPUTS OF ENERGY FOR CONSTRUCTING OPERATION AND MAINTENANCE OF THE PROJECT. STUDY - THE DER SHOULD EVALUATE A CROSS SAMPLE OF WATER RESOURCE PROJECTS CONSTRUCTED IN THE STATE AND MAKE APPROPRIATE RECOMMEN­ DATIONS TO THE FEDERAL GOVERNMENT REGARDING PROCEDURES. 48. Encourage state water resource agen­ cies to plan an active role in the develop­ ment of a National Planning Strategy for water resources projects. EXECUTIVE DIRECTION - THE DOA AND THE DER SHOULD DEVELOP A COOPERATIVE PROGRAM WITH ALL FEDERAL AGENCIES INVOLVED IN WATER RESOURCE PROJECT EVALUATION. 49. Recognize aesthetic considerations as valid criteria for the evaluation and plan­ ning of water resources projects. STUDY - THE DER SHOULD IDENTIFY AREAS OF RESEARCH FOR EVALUATING THE TRADE- OFFS BETWEEN ENVIRONMENTAL AND ECONOMIC FACTORS IN WATER RESOURCE PROJECTS FOR UNIVER­ SITIES TO PURSUE. 67 M PL 93-251 PL 90-190 PL 90-577 Ch. 20, F.S. M s. 120.54, F.S. s. 23.012(3, 6), F.S. Ch. 373, F.S. Ch. 216, F. S • s. 23. 012 (4., 6), F.S. PL 89-90 s. 373.026(8), F.S. PL 92-500, Sec. lOl(b) PL 92-583 M Ar t . II, Sec. 7, Fl. Const. PL 91-190 38 FR 24778, 1973 ADMINISTRATIVE SYSTEMS FOR WATER MANAGEMENT IN FLORIDA John M. DeGrove Director Joint Center for Environmental and Urban Problems Florida Atlantic and Florida International Universities Boca Raton, Florida THE HISTORICAL SETTING The history of water management in Florida until very recent times consisted of vigorous efforts to drain and reclaim all wetlands in the state and to devise methods of getting rid of flood waters as rapidly as possible, all in the name of promoting maximum feasible (or even unfeasible) development. From the time of the first discussions by a state senator concerning draining and reclaiming the Everglades and surrounding areas in 1847; to the passage of the federal Swamp and Overflowed Land Grant Act in 1850; down through the creation of an Everglades Drainage District in the early 1900's; and on to the establishment of a Central and Southern Florida Flood Control District in 1949, the focus of water management in Florida was on drainage, flood control, and the p.romotion of rapid development.I Drainage and flood control efforts did in fact make possible the development of large areas of land, particularly in South Florida , for both agricultural and residential use. Thus the objectives of Florida's water management programs were realized. However, unanticipated consequences of the program began to emerge in the 1930's in the form of saltwater intrusion into the freshwater aquifer in South Florida, and in the form of overdrainage in much of the South Florida area during drought periods. In the post-World War II period, Florida experienced a population expansion unprecedented in the nation. That boom was at first welcomed with great enthusiasm by private and public sectors in the state. In the late 1950's and into the 1960's, however, the rapid population growth and the emergence of the environmental movement brought fundamental changes in attitudes in Florida toward growth--attitude changes that in turn had a dramatic impact on the approach to water management in the state.2 Some of the major negative impacts of inadequate water management in the face of explosive growth had by the 1960's become painfully clear. The saltwater intrusion problem continued; major water shortages were occurring in the heav­ ily urbanized lower east coast and in the Tampa Bay area; the destruction of wildlife habitats was widespread; the pollution of water was endemic in heav­ ily urbanized areas, and industrial and agricultural based pollution was a problem in many rural areas; and the actual threat of "running out of water" during severe drought periods had become very real in some sections of the state. 68 The state's response to an obvious need for more effective land and water man­ agement, in turn the fundamental tools for managing the explosive growth of the state, began to produce major responses in the latter part of the 1960's. In 1967, the Florida legislature authorized the establishment of the Florida Air and Water Pollution Control Commission, and charged it with the responsibility of protecting the air and water quality of the state. In 1969, a new and broader based department was authorized by the legislature that included solid waste and noise abatement responsibilities. The department, in coordination with federal government programs, was responsible for developing and adminis­ tering regulations to carry out the mandate of the leg~slature. Major environmental problems such as the Cross-Florida Barge Canal, recently referred to by one Corps of Engineers' official as "the Corps' Vietnam"; the threat of overdrainage to the water supply for Everglades National Park; the threat to critical water recharge areas, particularly an area called the Green Swamp near Tampa; and other perceived crises were brought to a head by a severe drought that occurred in Florida in 1970 and 1971. Saltwater intrusion on both the east and west coast, the call for water rationing, and a general realization that the state had no policy or administrative mechanisms to ef­ fectively manage its water in the face of a continuing series of crisis-level problems caused the legislature to take far-reaching action in 1972 in both the land and water management area. Newly elected Governor Reubin Askew convened a Governor's Conference on Water Management for South Florida in August, 1971, to make reconnnendations as to what could be dpne about the emergency drought conditions then gripping the South Flor~da area. The Governor's conference, responding in part to a strong challenge by the Governor in a keynote address, broadened its mandate to con­ sider the whole problem of land and water management in the state. The con­ ference recommended far-reaching new action by the state in these areas,3 and the Governor responded by establishing a Task Force on Resource Management that in turn presented to the Governor and to the legislature four major pieces of legislation. These were the Environmental Land and Water Management Act of 1972, the Water Resources Act of 1972, the Land Conservation Act of 1972, and the Comprehensive Planning Act of 1972. While the Environmental Land and Water Management Act received more national attention than any of the others, it seems fair to say that the Water Resources Act was in some ways the most far­ reaching and the most significant piece of legislation adopted in that historic package.4 THE WATER RESOURCES ACT OF 1972 This legislation, the first comprehensive effort by the state to set the frame­ work for planning and regulating the use of its water resources, was rooted in the work of the Holland Law Center at the University of Florida in its effort to develop a model water code. A special committee of the state legislature had worked for a considerable period of time in drafting water resources legis­ lation for the state, based largely on the work of the Holland Law Center. The chairman of that legislative committee was also a member of the Governor's Task Force on Resource Management in 1971, and the Task Force simply adopted its water management proposal with minor changes and included it in its pac~age 69 recommended to the Governor and the legislature. The paper by Maloney covers the major points in the legal framework set up by the Water Resources Act. The focus here is on the administrative mechanisms set up to administer the law. However, a summary assessment of what the law actually did is necessary to serve as a framework for the description and assessment of the administra­ tive mechanisms that were put in place to implement the law. The water resources legislation includes six major parts, ranging from Part I which requires the development of a state water resource plan to a Part VI which includes miscellaneous provisions. Other major topics include the per­ mitting of consumptive uses of water; the regulation of wells; the management and storage of surface waters; and finance and taxation provisions. The act has been amended in some substantial ways since 1973, largely in the area of extending the capacity to levy property taxes to all the water management dis­ tricts (WMDs) in the state. The language of the policy section of the Water Resources Act is very broad and comprehensive and clearly includes the consideration of water quality and land management issues as they relate to the regulation of surface and ground water. Most of the relevant points are covered in the paper by Maloney. The focus here will be on a section significant to the main concern of this paper-­ admin~strative systems for implementing water use programs. In this section the legislature declared its intent to provide both for an overall state frame­ work, and at the same time to recognize that regional variations were impor­ tant and needed to be taken into consideration. The relevant language holds that . . . it is therefore the intent of the legislature to vest· in the Department of Environmental Regulation, or its successor agency, the power and the responsibility to ac­ complish the conservation, protection, management, and con­ trol of the waters of the state and with sufficient flex­ ibility and discretion to accomplish these ends through delegation of appropriate powers to the various water man­ agement districts. The department may exercise any power herein authorized to be exercised by water management dis­ tricts; however, to the greatest extent practicable, such powers should be delegated to the governing board of a water management district.5 The key substantive provisions of the legislation involved sections on the development of a state water use plan; the permitting of consumptive uses of water (Part II); the regulation of wells (Part III); and the management and storage of surface waters (Part IV). Again, the details of these major water management powers are developed in Maloney's paper. It is enough here to say that the act put in place a broad and comprehensive grant of power to state and regional agencies that involved the planning and regulation of virtually all surface and ground-water activities in the state. The state planning and management framework was melded with the delegation of much of the implementa­ tion of the act, in both the planning and regulatory area, to the five WMDs that were authorized by the legislation. (See figure 1). 70 Figure 1 FLORIDA WATER MANAGEMENT DISTRICTS LEGEND _____ Approximate District Boundaries A Northwest Florida WMD B Suwannee River WMD C St. Johns River WMD D Southwest Florida WMD E South Florida WMD 71 The regional districts covered the entire state, and were to be governed by a nine-member citizen board appointed by the governor and serving without compen­ sation except for expenses. Two of the districts had existed for a consider­ able period of time before the passage of the act. The South Florida WMD was established as the Central and Southern Florida Flood Control District in 1949, and the Southwest Florida WMD was established in 1961. Both of these WMDs had taxing power by special law authorizing them to levy up to one mill of ad valorem taxes on the real property of the district. Both were large in terms of geographic area and in terms of population. For example, the South Florida WMD covered all or parts of 17 counties, stretched from the Orlando area down through the Florida Keys, and included a property tax base in 1976 of some $50 billion. The newer districts established in the north-central, northeast, and northwest Florida areas were equally large in a geographic sense, but much smaller in terms of population and in the immediacy of the water problems they faced. The exception was the St. Johns River WMD, which included large parts of the urban area of Orlando, the Jacksonville area, and the Upper St. Johns River Basin, including areas north and south of Daytona. In a 1974 amendment, the legislature further stressed the importance of "coop­ erative efforts between municipalities, counties, water management districts, and the Department of Environmental Regulation." Such cooperative efforts were seen to be "mandatory in order to meet the water needs of rapidly urbanizing areas in a manner which will supply adequate and dependable supplies of water where needed without resulting in adverse effects upon the areas from whence such water is withdrawn." This particular provision was intended among other things to encourage a cooperative effort in the Tampa Bay area involving a rather sharp controversy between various counties as to the degree to .. which each county could draw water from the aquifer, particularly when one county was drawing water from wells in another county.6 THE ADMINISTRATIVE FRAMEWORK FOR WATER MANAGEMENT IN FLORIDA: PRE AND POST 1975 Prior to the enactment of the Environmental Reorganization Act of 1975,7 the administration of water resources in the state was sharply fragmented. Three agencies had major responsibilities for water quality and water quantity plan­ ning and regulation, including the Department of Natural Resources, prior to 1975 the state agency overseeing WMDs; the Department of Pollution Control, the agency responsible for air and water pollution standards; and the Depart­ ment of Health and Rehabilitative Services, whose Bureau of Sanitation was responsible for enforcing drinking water regulations. Thus responsibility for water quantity management was in a separate agency from the one responsible for water quality. The impossibility of separating these two critical components of water management without sacrificing a comprehensive approach was a major factor in causing the legislature to put both of these major elements into the same state agency as part of the 1975 reorganization. At the regional level in the pre-1975 period, as noted above, there were two regional water management agencies. These agencies covered the major urban areas of the state, and certainly were positioned in such a way as to attempt to cope with the most dramatic growth pressures existing in Florida. In the 72 early 1970's, cities and counties were largely proceeding to develop their own water management programs with little or no coordination or control from state and regional levels in the water quantity area. The Environmental Reorganization Act of 1975 made sweeping changes with regard to the management of water resources in the state. In addition to providing a new framework for the regulation of almost all surface and ground-water activ­ ities in the state, the act also took the water use functions out of the hands of the Department of Natural Resources and put them in a new Department of Environmental Regulation (DER). Thus water quantity and water quality were brought together in the same agency for the first time, including the respon­ sibility for drinking water controls. This meant that the five WMDs, the two older ones and the three new developing districts ·, were brought under DER, bringing policy and administrative control of water quality and quantity under a single state agency. The implementation of the water management system set up in the act of 1972 went forward very slowly in the 1972-75 period. Part of the difficulty in car­ rying out the act involved the question as to whether any boundary changes could take place unless and until the question of the ability of new WMDs to levy ad vaZorem taxes was cleared up. Because of constitutional changes made in 1968, only a vote of the people could authorize the new WMDs to levy such taxes. This problem was not solved until 1976, when a constitutional amend­ ment was adopted by the people of the state allowing each WMD to levy up to 1 mill of ad vaZorem taxes. Political reality mandated the statewide approach. Most observers felt that if the vote had been taken in each of the new WMDs, it would have failed in all three. In a statewide vote, the voters in the two older WMDs;- already paying an ad vaZorem tax for water management purposes, were willing to extend that opportunity to their fellow citizens in the newly established WMDs. The voting pattern in the election did in fact confirm this political judgment.8 The Department of Natural Resources had taken a rather permissive approach to the whole matter of implementing the 1972 legislation, and had not really push­ ed the implementation of the act in its relationships with the WMDs. Further­ more, funding provided by the legislature for the new WMDs, ranging from $400,000 to $500,000 per district per year, was not adequate to support a rapid implementation of the act. The 1975 Reorganization Act, followed as it was by the clarification of the fiscal problems in 1976, set the stage for a more vigorous implementation effort. It is true that even prior to this time the older existing districts, especially the South Florida WMD, had moved promptly to put in place the regulatory system authorized by the 1972 regulations. DER, in its effort to administer its new responsibilities vis a vis the WMDs, established a full-time coordinator; instituted quarterly IDeetings of the staffs of the WMDs with the staff of DER; began the publication of a newsletter to keep all the districts more closely informed as to what was happening at the state level and in other WMDs; and instituted a number of programs designed to more closely coordinate the work of the regional WMDs with DER at the state level. Included in this surveillance was a performance or program audit man­ dated by the state legislature which was completed by DER in 1976 and updated in 1977.9 73 In an effort to insure a closer coordination between water quality and water quantity concerns, the 1975 Reorganization Act directed the establishment of four regional districts for DER that for the most part fit with the boundaries of the five WMDs (figure 2). Furthermore, the headquarters of the state agen­ cy's district units are co-located with the headquarters of the WMDs whenever that is possible. In summary, a series of events from 1972 through 1976 substantially strength­ ened the capacity of the state to manage its water resources. The Water Re­ sources Act of 1972 established the statutory framework for planning and regu­ lating the surface and ground-water resources of the state. The 1975 reor­ ganization put water quality and water quantity responsibilities in the same state agency, thus making it possible to assure a coordinated and cohesive approach to managing the waters of the state. The 1976 constitutional amend­ ment clarified the problems involving the taxing authority of the WMDs and thus cleared the way for the boundary adjustments that were needed to put the new system completely in place. Thus, the stage was set for the full imple­ mentation of the system envisaged by the legislature in adopting the 1972 legislation. MANAGING FLORIDA WATER RESOURCES: PLANNING AND REGULATION Planning The regulatory efforts at both the state and regional levels have gon~ forward at the same time that the planning process has been put into place. The plan­ ning process involves DER and the WMDs and is largely focused on the problems of surface and ground-water management--the so-called water quantity dimension of the overall water resource management problem. However, both because the Water Resources Act language is broad enough to include water quality con­ siderations and because the parent state agency, DER, also is involved in the water quality plan being developed for the state, water quality considerations have not been absent in this planning effort. The act requires the development of a state water use plan, and also directs DER to work closely with the Divi­ sion of State Planning of the state Department of Administration in its effort to develop a comprehensive state plan, particularly with reference to the water element of that plan. The planning system involves the development of regional water use plans by each of the five WMDs, within a planning framework supplied by DER. These plans will then be taken by DER and integrated with that department's water quality planning effort being carried forward under sections 303, 208, and 201 of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA). These two elements will compose the state water plan, which also will be adopted as the water element of the State Comprehensive Plan. The status of the water use planning effort is that each of the WMDs is rather far along in the effort to develop a regional water management plan. In at least two cases, final sub­ mission of the regional plan to DER is planned by the end of 1978. The other three WMDs will probably not complete the regional water plan until 1979 . Thus DER will probably be forced to put back its target date for the completion of 74 Figure 2 DEPARTMENT OF ENVIRONMENTAL REGULATION DISTRICTS AND SUBDISTRICTS A LEGEND --- District · Boundaries * District Of fices o Subdisfrict Offices • Branch Offices A NQrthwest District • Tallahassee B St. Johns River District I St. Johns River Subdistrict c Southwest District D South Florida District lwflt~llt South Florida Subdistrict 75 B 1(- 0rlando ,_. 0,,11.f}>&> -- # •' Marathon , " , 4' the state water plan until 1980. In the meantime, the department plans to sub­ mit to the 1978 session of the legislature a full report on the status of both water quantity and water quality efforts.10 With regard to the water quality planning effort, it also is rather far along, but not complete. The broad-based planning carried out under section 303(e) of FWPCA is generally complete, having consisted largely of gathering baseline data on water quality. Had the planning process gone forward in a wholly rational way, the next step would have been to complete the section 208 area­ wide planning, and then to proceed down to the section 201 facilities planning. The fact is that section 201 planning is far ahead of section 208 planning, largely because the Nixon administration did not release funds for the section 208 planning effort in a timely way. As a result, the middle link in the water quality planning process fell behind. In Florida, 208 planning is divided into designated and non-designated areas, with more than $10 million having been channeled into 12 designated 208 planning areas (figure 3). These areas are, for the most part, administered through regional planning councils, who in turn deal with cities and counties in bringing about the planning effort. DER is handling the non-designated areas, and a considerable amount of work remains to be done in this area. In a substantial number of areas, the 201 facilities planning is virtually com­ plete. The 201 planning is done by cities and counties through a program ad­ ministered by DER. All of these planning efforts will ultimately be integrated into DER's state water plan and made part of the water element of the state comprehensive plan. Now that this planning process is rather far along, DER is convening meetings between key participants in both the water qual~ty and water quantity planning areas to make certain that effective coordination takes place between the quantity and quality aspects of the state water plan. The importance of the planning process to the regulation effort is difficult to overestimate. Regulation in the absence of an effective planning frame­ work tends to take the form of case-by-case decisions that are not related to broad goals and policies that will maximize the effective management of the state's water resources. It might be argued that it would have been better to complete the planning before the regulation process even began. Unfortunately, Florida did not have the option of waiting for several years to allow the establishment of a planning framework to guide the regulatory system. The problems were immediate and pressing. Action to cope with them in the form of environmental regulations could not be postponed without courting even more problems of major proportions. It is also true that the experience in Florida, as well as in other states, indicates that there is considerable merit to joining the development of regu­ lations, including permitting systems, directly to the development of plans. Regulatory experience often gives a much needed realistic tenor to planning, which may otherwise become an attempt to set goals and implement policies that are not realistic in the light of the conditions that actually exist in the field. In any event, DER is placing a top priority on completing a planning framework that can give better and more effective direction to the regulatory programs at both the state and regional levels.11 76 Figure 3 208 AREA-WIDE WASTEWATER MANAGEMENT PLANNING AREAS LEGEND ----- Planning Area Boundaries 4 Designated Agencies 1 West Florida Regional Planning Council 2 Northwest Florida Planning & Advisory Council 3 Tallahassee-Leon County Planning Department 4 Volusia Council of Governments 5 Brevard County Planning & Zoning Department 6 East Central Florida Regional Planning Council 7 Central Florida Regional Planning Council 8 Tampa Bay Regional Planning Council 10 Area Planning Board of Palm Beach County 11 Broward County Planning Council 12 Metropolitan Dade County Environmental Resources Management 13 Jacksonville Area Planning Board 14 South Florida Regional Planning Council ( I Possible Designated Agency 15 Northcentral Florida Regional Planning Council 77 Regulation The Water Resources Act of 1972 included a choice as to when and by whom the regulation of surface and ground water would be initiated in the state. The choice included whether the regulations would be done from the state level or by the five WMDs. No mandatory date for initiating the regulations was in­ cluded in the act, so considerable latitude was offered as to when regulations would go into effect. In the process of implementing the act, the Department of Natural Resources prior to 1975 and DER after 1975 have chosen to delegate the implementation of surface and ground-water management regulation to WMDs. The degree to which this delegation has been used by ~s is uneven, ranging from an early initiation of regulations in the two older WMDs (the ones serving the populated South Florida and Tampa Bay areas) to no initiation of regula­ tions in two of the WMDs in the less populated areas of the state~ There is every reason to believe that the flexibility built into the original law was well-founded. The newer WMDs have had a difficult time gearing up and simply collecting baseline data and initiating the planning process. They have not been in a position to launch a comprehensive regulatory program, nor is there an immediate need for such a program in the north and northwest por­ tions of the state. On the other hand, in those highly populated areas where water problems were already pressing, and in some cases had reached crisis pro­ portions, it was not only possible but absolutely necessary to go ahead _with a comprehensive regulatory system. The South Florida WMD was the first to put a comprehensive surf ace and ground­ water regulation system on-line, and that system became effective Mar~h 1, 1974. The Southwest Florida WMD, covering the Tampa Bay area, followed shortly thereafter. The other three districts are in the process of data collection, and in the case of the St. Johns River WMD, are just moving into .rule making and regulation of at least certain portions of the district. The · South Flor­ ida WMD will be treated in detail below. The Southwest Florida WMD by 1976 had issued over 2,000 surface water permits. The St. Johns River WMD as of Jan­ uary 1, 1977, had adopted a rule to cover the regulation of surface waters and planned to implement the regulations in one of its basin areas as of that date. The other two WMDs were in the process of drafting rules but had no immediate plans to put the regulations in place. The second major area of regulation involves controlling the withdrawal of ground water through consumptive use permits. This authority extends to all agencies, public and private, which use any substantial amount of water, with a statutory exemption of water used for household purposes. The consumptive use permitting system is in place in three of the WMDs, has been addressed but not implemented in a fourth, and has not been addressed in the Suwannee River WMD, at least as of 1977. The Southwest Florida WMD had issued by 1976 about 900 permits for consumptive use, and the St. Johns River WMD began implementa­ tion of this section on January 1, 1977. The regulations involving surface and ground-water uses are only part of the regulatory system envisaged in the act and being implemented in one or more of the WMDs. Other aspects of the regulatory system, of course closely related to and in essence part of the surface and ground-water regulations, include rules 78 covering the enforcement of the regulations which have been adopted--in force in three of the WMDs and in the process of adoption by the other two. Special rules for the handling of water shortage situations have been adopted by four of the WMDs, and water shortages have in fact been declared in several in­ stances in the South Florida WMD area. With regard to the establishment of saltwater barrier lines, only the two older WMDs, in whose area saltwater intrusion has long been a substantial problem, have established comprehensive monitoring systems and water level regulation schemes to prevent saltwater intrusion. Studies are underway in the other three districts to address this problem, though the degree to which it is a problem in these districts varies widely. With regard to the establishment of minimum flows and levels of waters in rivers and lakes, all of the WMDs have addressed this problem at least to the point of data collection and analysis. Two of the districts actually have in place regulations regarding minimum flows and levels for certain sub-basins and/or lakes and rivers in the dis­ tricts. With regard to the control of deep well injection of either potable freshwater, treated sewage, or other classes of water, a rather comprehensive experimental research effort in cooperation with other agencies is being undertaken in the South Florida WMD area involving the injection of both potable water and treated sewage into different layers of ground-water aquifers. Data from these experimental cases will serve as a basis for a careful regulation of deep well injection in the future. This is a matter that involves both quan­ tity and quality aspects of water, and it is one in which the district works closely with DER as well as appropriate federal agencies. Other districts have adopted rules and in fact are handling permit requests for the under­ ground injection of water. The Suwannee River WMD has a research program un­ derway in cooperation with the United States Geological Survey to determine the effects of phosphate mining operations in the Osceola National Forest. The district has had nq applications for injection wells to date, but rules and regulations are being developed.12 THE REGULATORY SYSTEM IN ACTION: SOUTH FLORIDA WMD The South Florida WMD was the first in the state to initiate a complete regula­ tory system involving both surface and ground water. Because of that, it will be used as a case study to illustrate the elements of water use administration systems in Florida. For the most part, the agency structure and function as­ pects have already been covered. The other elements, including the data bases on which regulatory systems have been based, the allocation standards and cri ­ teria, permit ·procedures, and regulation and enforcement aspects of the admin­ istrative system will be covered in detail below. The South Florida WMD includes all or part of 16 counties in the southern part of the state, stretching from the Disney World area of Orlando through the Florida Keys, a distance of some 400 miles north to south. The District in­ cludes 3.5 million persons, 43 percent of the total population of the State of Florida. Its property tax base exceeds $50 billion. Clearly a district of 79 such geographic size and population is of critical importance in the overall water management scheme in Florida. Data will be drawn largely from information furnished by the South Florida WMD in the form of a Permitting Information Manual (Volume I, General and Proce­ dural Information, March, 1978). A second major source of data was the Annual Report for the fiscal year 1976-77 of the Resource Control Department of the South Florida WMD. In addition, data were collected from interviews with the executive director of the District and the head of the Resource Control Depart­ ment. In an introduction and overview section of the Permitting Information Manual, it was pointed out that the WMD (operating under chapter 373, Florida Statutes, and chapter 16K of the Florida Administrative Code involving the rules adopted within the framework of the legislation) regulates water use (primarily public water supply, irrigation, and related uses); surface waters (primarily involv­ ing drainage); artificial recharge efforts (primarily deep well injection); and permits for right-of-way occupancy and district project works and lands (typi­ cally related to the surface and ground-water permitting activities). As noted earlier, in the area of ground-water regulation, the District requires permits for all consumptive uses with the exception of individual domestic use and withdrawals of less than 100,000 gallons per day. Wa~er used - exclusively for fire fighting is also excepted. The WMD does not, as does its fellow districts in other sections of the state, regulate well construction or the licensing of well drillers. Another major area of WMD activity that does not involve nearly so mu~h time and numbers of permits, but has great potential importance for the future, con­ cerns deep well injection activities. Any such activity must be permitted, and the District approach to these activities at the present time is _. limited to experimental wells to help determine the extent to which deep well storage of potable or non-potable water can safely be achieved. The typical permit allows an exploratory test hole which is drilled solely for the purpose of acquiring needed geological and hydrological data which can be analyzed and which even­ tually can form the basis for future applications for injection well facilities. With regard to the procedures involved in permit application, including their preparation and processing, the District generally relies on a fairly intensive public information effort to inform those who need permits of the fact that they must apply to the District to cover existing or proposed surface or ground­ water activities. The District also uses field representatives' reports, com­ plaints from individuals, and infor~tion coming from interagency reviews such as A-95 reviews to discover where permits are needed and have not been applied for. The South Florida WMD permit process is illustrated by Figure 4. The applicant is strongly encouraged to discuss informally with the District what will be needed in the way of a completed application as early as possible. Once an application with adequate supporting information is formally submitted to the District, a permit application for an existing project is checked by the Dis­ trict's field representative. Proposed projects are checked in the field upon completion to insure compliance with permit conditions. Once a formal permit 80 ~ Optional Procedure Final Procedure Figure 4 SFWMD PERMIT PROCESS 81 is filed, there is a coordination meeting between the WMD and the state DER to insure coordination between the state and regional agency to avoid unnecessary delays for the permit applicant. Review of the sufficiency of the data included in the permit must be accom­ plished within 30 days. Once the application is complete in terms of its sup­ porting information, action must be taken within 90 days after the receipt of the application. If an application is incomplete, and additional information requested by the District is not forthcoming within 60 calendar days from the date of such a request, the application is automatically recommended to the Governing Board for denial. It is possible to receive an extension under cer­ tain circumstances. If the 90 day deadline is not met, a "default permit" is issued to the applicant. It should be noted that these rules derive from the 1975 rewrite of Florida's Administrative Procedures Act,13 and apply to the regulatory activities of all state activities.14 During the time between the receipt of adequate information to support an appli ­ cation and the decision on whether or not to issue the permit, a staff report is prepared by a person assigned as lead reviewer with regard to the permit application. Input comes from all appropriate technical and legal staff as needed. Once the staff report is complete a public notice is advertised, in­ cluding the action recommended by the District's staff. Such notice is pub­ lished in appropriate newspapers at least 14 days prior to the District Govern­ ing Board meeting at which the application will be considered. If there are ob­ jections by affected parties of any substance filed in writing, a public hear­ ing may be scheduled with regard to that application. In cases where public hearings are scheduled, the Governing Board may act as the hearing body itself. More typically, the task is assigned to a hearing officer for a quasi~judicial hearing carried out under the Administrative Procedures Act. After this hear­ ing is completed, the Governing Board receives the hearing examiner's report, including findings of fact and conclusions of law. The Governing Board is the place where final action is taken on such permit applications. Once the Governing Board has acted, it is possible for an appeal from its action to be taken by an aggrieved party to the Land and Water Adjudicatory Commission, which in Florida consists of the Governor and the elected cabinet. The scope of the activity involved in permitting surface and ground-water uses in the South Florida District is illustrated by the fact that in the period from 1974 through 1976, almost 1,200 permits were acted on by the District, including 620 water use permits, 400 surface water management permits, and 154 related right-of-way permits. The pace of activity increased substantially after that, and in the fiscal year 1976-77, almost 500 hundred permits were issued involving ground-water uses, including 50 public water supply permits , and over 300 agricultural water supply permits. Another way to assess the scope of the District's work is that in 1976-77, the total amount of water allocated for consumptive use permits was estimated at 728 billion gallons a year. The largest user of water in this allocation sys­ tem was agriculture, with public water supply, industrial, mining, and recrea­ tional uses in that order the next largest users. The procedure involved in a ground-water use application concerns a determination of what is a reasonable and beneficial use related to th~ estimated safe yield of the basin from which the withdrawal is proposed. 82 With regard to the criteria for the allocation of the use of ground water, they are generally three-fold. First, withdrawals must be judged not to adversely affect other existing users. Second, the withd.rawal must be judged to be rea­ sonable, including in the case of a public water supply or a withdrawal for a large development that the projected population for the service area is reason­ able. Third, the withdrawal must be in the public interest. The public int: e:. ­ est criterion has been interpreted by the South Florida WMD to mean such th; i~ -s as that the withdrawal will not aggravate or cause saltwater intrusion p .:1 lems, will not produce unacceptable adverse environmental impacts, and will not adversely impact adjacent land uses. In addition, a water quality concern is introduced in the evaluation at this point with regard to the acceptable qual­ ity of the water with regard to the criteria of agencies responsible for public health. A problem that is given special significance in the review of applications for the withdrawal of water from the aquifers in the District concerns saltwater intrusion. This is a critical problem in some areas of the District, and especially in Broward County where eight utilities serving a great portion of the county's more than 900,000 population either currently have saltwater in­ trusion problems, or have the potential to have problems in the near future. Some 25 utilities in the entire District have experienced saltwater intrusion difficulties, or will experience problems should special care not be taken in the withdrawal of additional water. The Resource Control Department of the South Florida WMD is working with its Resource Planning Department to develop a computer modeling technique that will allow an accurate assessment of the impact of additional withdrawals in certain areas of the District on the salt ­ water intrusion problems. With regard to the surface water management function of the District, the major function of the Resource Control Department is to consider four basic concerns in evaluating surface water management permit applications. First, the problem of protection of structures, such as buildings and roads, from flooding is con­ sidered. Secondly, there must be an assurance that the receiving water is not subject to flows which will exceed its capacity, be it a canal, a lake, or other such area. Thirdly, there must be assurance that there will be a rea­ sonable protection of the receiving water from water pollution resulting from the proposed permit activity. Fourthly, there must be evidence of the mitiga­ tion or elimination of any potential environmental damage that might be caused by the permitted activity. Typically, activities associated with surface water management permits involve either residential, agricultural, or commercial and industrial uses. A checklist used by the District in evaluating permits is illustrated by Table 1. The surface water management process involves issuance of permits for all drainage activities with the exception of certain tidal waters, where DER carries out such regulation under its dredge and fill ~ule, and certain so­ called "closed systems" exempted in the Water Resources Act. The District by rule has excepted projects with less than two acres of impervious area and les b than 10 acres of gross area if the local government within which the activity occurs has acceptable regulations in place and the capacity to implement them according to District criteria. For instance, certain projects in Dade County having less than 40 acres of total land area are exempted under a District 83 Tah'le 1 SURFACE WATER MANAGEMENT STAFF REVIEW SUMMARY 1. Suitability of land for proposed use Good Fair Poor Not Applicable 2. Water Quantity Impacts Good Fair Poor Not App Li,. cable 3. Water Quality Impacts Good Fair Poor Not Applicable 4. Environmental Impacts Good Fair Poor Not Applicable 5. Water Conservation Good Fair Poor Not Applicable 6. Flood Protection Good Fair Poor Not Appli~able 7. Relief from rainstorm inconvenience Good Fair Poor Not Applicable 8. System Maintainability Good Fair Poor Not Applicable 9. Overall use of land with respect to water resource Good Fair Poor Not Applicable 10. Water management system with respect to feasible alternatives Good Fair Poor Not Applicable agreement with Dade County involving that county's rules and its capacity to implement them. The same is true of similar activities in Palm Beach County. In a general way, it can be said that the District is attempting to negotiate agreements with all counties which have sufficient professional staff and are willing to adopt appropriate rules so that a general permit can be issued, and the duplicating and multiple layers of permitting can be avoided. Where the general permit is in force, the applicant need only file an intent to construct works pursuant to such a general permit at least 30 days prior to the connnence­ ment of construction. The District's activities in the surface water management area go well beyond its direct responsibilities under the Water Resources Act. The District per~ forms land development reviews in cooperation with state and federal agencies, including the state DER and the U.S. Army Corps of Engineers. For instance, from January 1, 1977, to date, 203 applications to the Corps of Engineers and 205 applications to DER for permits have been reviewed by the District. The District also participates in the 208 planning process through contracts with the local lead 208 agencies throughout much of the District's territory. For­ mal contracts have been made with the Broward County Planning Council, Dade County, and Palm Beach County. More informal and limited activities have been carried out with the Central Florida Regional Planning Council, the East- 84 Central Florida Regional Planning Council, and the Southwest Florida Regional Planning Council. An illustration of efforts by the District to improve the data base on which both surface and ground-water permits are evaluated is illustrated by a series of basin studies undertaken by both the Resource Control and Resource Planning departments of the District. These studies are intended to collect and analyze basin data so as to provide better water management criteria for the evaluation of permit applications. Additional District activity that goes beyond the min­ imal requirements of the Water Resources Act involves its participation in A-95 clearinghouse reviews, where during the 1976-77 fiscal year the District proc­ essed 88 such projects ranging from subdivision feasibility analyses to state road projects and section 8 housing assistance programs. Furthermore, the District responds to environmental impact statements. During the past fiscal year, seven such impact statements were reviewed ranging from three housing projects in one county to a large airport in another county. Another area in which the District carries out very important water management activities is through participation in 11 development of regional impact" (DRI) reviews under the Environmental Land and Water Management Actl5 adopted in Florida at the same time that the Water Resources Act was approved by the legislature. This act provides for a regional assessment of large projects such as housing developments, shopping centers, airports, electrical transmis­ sion lines, po~t facilities, petroleum storage, and other such facilities. The lead agency responsible for these regional assessments lies with regional plan­ ning councils, but the District, under contract with the several regional plan­ ning councils in its territory, carries out the water quantity, water quality, and natural vegetation elements of the DRI review. During the period from July 1, 1973, when the review process was instituted, to September 30, 1977, the District had reviewed 73 developments and made its recommendations to both the regional planning councils and to the local governments involved in issuing the actual DRI development order. With regard to the permit administration activities of the District, the Per­ mit Administration Division has prime responsibility in assisting the other divisions of the Resource Control Department in issuing permits. In addition, it has the added responsibility of monitoring the implementation of the per­ mitting process to assure that the stipulations involved in permits, often major conditions which are attached before a permit will be approved, are actually carried out in the field. An illustration of the scope of the activ­ ities of this division can be seen in the fact that during the 1976-77 fiscal year almost 2,000 inspections of water use and surface water management per­ mits were made, 368 violation reports were written, almost 1,000 special inves­ tigations were conducted, and a large number of additional activities were car­ ried out by this division. An effort has been made in this very brief sketch of the regulatory activity of the South Florida WMD to illustrate the major components of the water man­ agement administrative system involved in the activities of carrying out the Water Resources Act adopted by the state legislature in 1972. While the ac­ tivities of the South Florida WMD are not typical of the newer districts located in the more rural areas of the state, they are very close to the nature 85 and scope of the activities carried out by the Southwest Florida WMD in the Tampa Bay area, and the activities of the St. Johns River WMD will increasingly involve the scope of activities described above. THE ADMINISTRATION OF SURFACE AND GROUND-WATER RESOURCES IN FLORIDA: A CRITIQUE A number of problems have delayed to some extent the full implementation of the Water Resources Act of 1972. Uncertainty about the capacity of the WMDs to collect ad valorem taxes to defray part of the costs of administering their programs in turn delayed the boundary adjustments called for by the 1972 act which were necessary before a full and logical implementation of the act could be achieved. The uncertainties caused by this situation were not cleared up until the adoption of a constitutional amendment in 1976 which resolved the issue of the right of all the WMDs created under the 1972 legislation to levy up to one mill in property taxes to carry out their functions. The legislature retains the power under this constitutional amendment to set limits as to the actual millage that can be levied by the several districts, and the millage limit set by the 1977 session of the legislature ranged from one mill to one­ twentieth of a mill. In the latter case, the one-twentieth of a mill limit for the Northwest Florida WMD is actually lodged in tµe state constitution. A further event that impacted the development of the overall state/regional arrangement for implementing fully the 1972 act involved the Environmental Reorganization Act of 1975. That act shif~ed the state responsibility for water management from the Department of Natural Resources to a newly ~reated DER. It was not until this time that responsibility for water quality and water quantity was lodged in the same state agency, with the WMDs responsible to the state agency that was also responsible for water quality regulation pro­ grams. Given the impossibility of separating in any reasonable fashion water quality concerns from water quantity concerns it is doubtful that a full and effective implementation of either the Water Resources Act or water quality legislationlo could have been carried out had not the 1975 reorganization taken place. While there have been many problems in bringing about the full implementation of the act, it seems fair to say that much has been accomplished. Florida does have a far-reaching piece of legislation that gives state and regional units broad powers to regulate surface and ground water within state and regionally adopted water plans. Administrative mechanisms seem adequate to the task of implementing this planning and regulatory system. The system does seem to be adequately financed through a system of regionally based property taxes and state funding. The joining of water quality and water quantity problems is now much easier with both of these responsiblities located in the same state agency. While much has been accomplished, it certainly is true that substantial prob­ lems do remain. First there needs to be a clearer and more effective link between the implementation of the Water Resources Act of 1972 and the Environ­ mental Land and Water Management Act adopted in the same year. The lead state agency with regard to the Environmental Land and Water Management Act is the Division of State Planning; yet in the implementation of developments of 86 regional impact and areas of critical state concern, water quality and quantity problems are of great importance. Some coordination links do exist, but both at the state and regional level there needs to be a strengthening of this coor­ dination and a clarification of lines of responsibility. This is especially true with regard to the regional level. At this level the regional WMDs and the regional planning councils (see figure 5) both are involved in important aspects of water planning and management. There remains to be developed a more effective coordinating link between these two regional agencies that will prevent an overlap and duplication of responsibility. Another area in which additional effort needs to be carried out is a more ef­ fective and efficient melding of water quality and water quantity responsibil ­ ities of DER, including a clearer picture of the role that WMDs will play with regard to water quality as well as water quantity management. This problem is in turn linked to the need to simplify permitting, where the pressures are similar to those in the rest of the country to make the whole process more effective and more efficient. Substantial progress along this line has been made, with DER working out agreements with some of the WMDs, specifically the two districts involved in the majority of the permitting being carried out to date. Under this procedure, an applicant will not be needlessly held up by going through two entirely separate permit approval processes. Some of the state's problems in effectively melding water quality and water quantity con­ cerns might be a warning to those states that have water quality programs in place but have not yet adopted water quantity management programs. When this is done, the greatest care needs to be taken to assure that the fit between these two major aspects of water management is clearly spelled out in both the planning and regulatory areas. 87 Figure 5 DEPARTMENT OF ADMINISTRATION MULTI COUNTY PLANNING DISTRICTS LEGEND District Boundaries • Regional Planning Agency District: District Planning Agency: 1 West Florida Regional Planning Council 2 Northwest Florida Planning & Advisory Council 3 North Central Florida Regional Planning Council 4 Jacksonville Area Planning Board 5 6 Withlacoochee Regional Planning .Council East Central Florida Regional Planning Council 7 Central Florida Regional Planning Council 8 Tampa Bay Regional Planning Council ·9 Southwest Florida Regional Planning Council 10 Treasure Coast Regional Planning Council 11 South Florida Regional Planning Council 88 FOOTNOTES 1. Turner Wallis, "Highlights in the Develop~ent of Water Management Programs for Florida," November 2, 1965. Unpublished compilation available through the FAU-FIU Joint Center for Environmental and Urban Problems; see also, John M. DeGrove, Approaches to Water Resource Development in Central and Southern Florida, 1845-194?, (Gainesville, Florida: Public Administration Clearing Service of the University of Florida, 1958). 2. See, for instance, John M. DeGrove, "Land Management: New Directions for the States," in Urban Options I, Alan K. Campbell et al. (Columbus, Ohio: Academy for Contemporary Problems, 1976), pp_. 125-49. 3. Participants, Governor's Conference on Water Management in South Florida, "Statement to Governor Reubin O'D. Askew," published by the Central and Southern Florida Flood Control District in Water Management Bulletin 5, no. 3 (December-January, 1971-72): 4-7. 4. For a review of the events leading up to the adoption of the land and water management legislation in 1972 and a brief review of the implementa­ tion efforts of the Environmental Land and Water Management Act, see De­ Grove, "Strengthening the Role of Local Governments in the Development of Growth Policy: The Case of Florida," presented to the Southern Politi ­ cal Science Association, New Orleans, November 7-9, 1974; see also, De­ Grove, "Land Management: New Directions for the States," supra, note 2, p. 130. 5. Fla. Stat., sec. 373.023. 6. Fla. Stat., sec. 373.196. 7. Fla. Stat., sec. 403.801 et seq. 8. "The Water Management Constitutional Amendment," Florida Environmental and Urban Issues III (January/February, 1976): 8-9, 17. 9. Source of these summary assessments of the status of the implementation of the Water Resources Act of 1972 was primarily a program audit by the Flor­ ida Department of Environmental Regulation, Report on Program Audit of Chapter 3?3, Florida Statutes, Water Management Districts, March 1, 1977. This report is available from the state Department of Environmental Regu­ lation in Tallahassee. 10. Interview with Jay Landers, Secretary, Department of Environmental Regula­ tion, Tallahassee, Florida, March 9, 1978. 11. The above assessment is based in part on an interview with Jay Landers, supra, note 10, and in part on the author's research into the state's role in land/water management. 12. Florida Department of Environmental Regulation, Report on Program Audit of Chapter 373, Florida Statutes, Water Management Districts. 89 13. LauJs of Fla., ch. 120. 14. Patricia Dore, "The Florida APA or Is This Really the End of Phantom Government," Florida Environmental and Urban Issues, vol. II, no. 4 (March/ April, 1975): 3-4, 16-17. 15. Fla~ Stat., ch. 380. 16. Id., ch. 403. 90 WATER RESOURCE PROBLEMS (Florida) 1. Surf ace Water Law Water Withdrawal uses and allocation 5 Instream uses 5 Saline water intrusion 3 Land use relationships 5 Property damage 3 Ownership of submerged lands 5 Conjunctive use surface & ground water · 5 Protection ground water recha~ge areas 5 Emergency use 5 Interbasin transfer 2 Interstate effects 3 Shoreline protection 2 Wetland protection 5 Public access 5 Reservation of reservoir sites 3 Water Administration Allocation standards & criteria 4 Data bases · 4 Permit procedures . 3 Regulation & enforcement 3 Agency structure & functions 1 Please mark as to priority using following code: 5 highest ~ l 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water 5 5 3 1 5 5 5 5 3 5 3 1 3 5 2 5 5 5 ·1 1 1 1 2 3 4 1 3 1 4 4 4 4 3 3 3 3 1 . 1 Rating of 4 or 5 indicates a belief that the pr~blem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings ,indicate that the problems are less severe or that existing laws address the problems. 91 FLORIDA STATE AGENCY COMMENTS John C. Bottcher Florida Department of Environmental Regulation Tallahassee, Florida The statutory basis for water management in Florida is extraordinarily compre­ hensive. The Florida Water Resources Act,l in particular--which receives pri ­ mary emphasis in the papers by DeGrove and Maloney--is a model water management statute, and in fact was so designated by the National Water Commission in its report to the President in 1972'. However, to counter the impression that things are ideal in Florida regarding water allocation and management, the fol­ lowing comments are intended to point out some of the problems which have been encountered, from the state agency point of view, in ·making this system work, and what is being done to· resolve these problems. Florida's water allocation and management system is a good one--perhaps even outstanding from a national perspective--but not without its share of difficulties, complexities, and mis­ understandings. It should be noted that several components of Florida's legal system for allo­ cation and management of water have been, or are being, challeng~d in court. One basic challenge consists of an attack by Pinellas County to the Southwest Florida Water Management District's water crop rule. The water crop or safe basin yield concept stems directly from the water budget or water balance ap­ proach to water management, and is central to protection of the resource in general, and consumptive use permitting, in particular. Moreover, as noted by Maloney, consumptive use permitting is central to Florida's Water Resources Act in substituting a permitting system for the former common law doctrine. The challenge asserts that the water crop rule is beyond the legislative man­ date and hence illegal. This issue is presently unresolved. A challenge has also been raised to the taxing authority of the water manage­ ment districts (WMDs). The ad .vaZorem taxing authority of the St. Johns River WMD has been challenged on a number of points, including the allegation that there is, in effect, "taxation without representation." There are 19 counties in the St. Johns River WMD, but only 10 board members. Moreover, the claim is being made that the District's taxing power is an usurpation of home rule of the counties. A third challenge concerns areas of critical state concern designations. In one case, 2 a court has held that the Legislature did not provide the Governor and Cabinet with sufficient guidelines to make designations. The case is being appealed to the state supreme court. In a case3 involving Green Swamp it 92 has been held that an error in rule-making procedures negates the designation. In addition to these judicial challenges, there are statutory challenges to the state's environmental laws which, if passed, could present major stumbling blocks. The Water Element of the State Comprehensive Plan, which, along with some 12 additional elements, is presently before the Legislature (now in ses­ sion), having been transmitted in February by the Governor, is described in Maloney's paper. The Legislature is in a major quandary about what to do with the Plan. As originally passed in 1972, the Florida Comprehensive Planning Act4 makes the State Comprehensive Plan "state policy" upon adoption by the Legislature. However, there is the feeling among some legislators that they cannot adequately analyze the hundreds of policies in the plan, and that state policy should be expressed in statutes rather than in a plan. Consequently, legislation has been introduced this session to specifically proscribe the plan from expressing state policy and making it "advisory" only. In addition, a bill has been introduced which would create a state water supply authority which could transfer water from areas of "excess" to areas of need, across basin and WMD boundaries. This, of course, would completely defeat the whole philosophy of the Water Resources Act. Another bill would create a 11 State Water Management Authority" to control the development of the Florida Water Plan and remove the Department of Environmental Regulation (DER) and WMDs as the sole proprietors of this function. Not only are there judicial and statutory challenges to these laws; there are also wide differences of opinion about what specific provisions within them mean, or hqw they should be implemented. There are several examples of this in the Water Resources Act. One of these is the "reasonable-beneficial" con­ cept described in Maloney's paper which is so central to this act. However, in practical terms, what is the reasonable-beneficial test? How are consump­ tive use permits granted or denied on the basis of this test? This issue has become so important that DER has recently contracted with the Holland Law Cen­ ter to further define reasonable-beneficial use so that the DER or the WMDs can state by rule what is involved in this requirement. The concept of "minimum flows and levels" for rivers, lakes, and aquifers is another area of uncertainty. On what should such minimum flows and levels be based? How much water, for example, does an estuary need to maintain produc­ tivity? It took the State of Oregon 18 years to establish minimum flows for its rivers and streams. Meanwhile, Florida has ~,700 streams over 0.4 miles in length, and 7,700 lakes greater than one acre in size. The papers by Maloney and DeGrove both note that water quality and quantity have been brought under one agency in Florida--the DER--particularly in the provisions of the Florida Water Plan which requires the integration of quantity and quality planning. There is no doubt that there is a clear need for this integration. One of the most telling of examples has to do with waste-load allocations and stream flows. The volume of discharge of wastes is based on waste-load allocations, which, in turn, are based on the assimilative capacity of a river or stream. The assimilative capacity is, in turn, largely a func­ tion of flow. Therefore, it is conceivable that a major water consumer, up­ stream of a major discharger granted a ·consumptive use permit by the WMD, could 93 reduce the flow such that the discharger is then in violation of state water quality standards, even though the discharger has been previously granted a water quality permit by DER. Thus quantity and quality are under one agency as they should be, but true integration has not been achieved. This latter point is related to a broader, more general problem arising from the Water Resources Act and the Environmental Reorganization Act. DER is given "general supervisory authority" over the WMDs but it is very unclear how this relationship should work. One problem is that DER is all of three years old and has about 600 employees state-wide. Meanwhile, the South Florida WMD is over 30 years old, has in excess of 800 employees, and has a larger budget than the whole state DER. Who should be in charge? In terms of water quantity and quality permitting, DER has responsibility for water quality permitting but, to use the South Florida WMD example again, this WMD has an excellent water qual­ ity capability in terms of both staff and facilities. In many respects, this water quality capability exceeds that of the DER; yet the DER retains the majority of water quality permitting. A final issue has to do with WMD funding. The Water Resources Act states that water resource projects of benefit to a limited segment of the population should be financed by those directly benefited.5 This has been interpreted by DER to mean that water resource projects in the WMDs should be financed through ad valorem taxes rather than general revenues. Several of the WMDs have argued that these projects are often used by residents from all over the state . (i.e., for fishing and recreation) and by out-of-state tourists whose expenditures benefit all Floridians and hence, should be financed by general revenues. A potential compromise on this issue is that while DER continues to ins~st that general funds not be used for construction of works per se, they should be available for land acquisition to encourage non-structural approaches and off­ set partially the unavailability of federal funds for this purpose. These are just a few of the problems inherent in the Florida legal and admin­ istrative systems for water allocation and management. It goes without saying that there are more. Now, what is being done to solve these problems, to make the legal and administrative systems function more smoothly? A first step in explaining our approach to these problems is to list some assumptions which DER makes regarding this system: 1. Existing laws in Florida are more than adequate to provide optimum protection and management of the resource. There is no need for more laws nor for major changes in existing laws. 2. The integration of water quantity and quality planning and per­ mitting is of paramount importance, and must be expedited in the future. 3. In keeping with the spirit of the Environmental Reorganization Act of 1975, permitting systems should be streamlined and dupli ­ cative permitting should be avoided wherever possible. Given these basic assumptions, what steps have been taken .to expedite the func­ tioning of Florida's water allocation and management system? Regarding the 94 efficacy of existing laws, DER is essentially opposed to any major changes in the Water Resources Act. Since its passage, various "bugs" have been worked out of the law, such as boundary determinations, and DER is continuing to par­ ticipate in efforts to "fine tune" it. For example, in the Florida Water Plan section, the statute calls for the integration of the State Water Use Plan and the state's "water quality standards and classifications" into the Florida Water Plan. DER would like to see this section amended to read, "water quality standards and classifications and re lated water quaZi ty planning~ " in recogni­ tion of the fact that standards and classifications are largely end-products of planning, and that the Florida Water Plan should include all quality planning sterrnning from the Federal Water Pollution Control Act Amendments of 1972. On the whole, however, the Florida Water Resources Act is an excellent law which should be given time to work. Regarding integration of water quality and quantity, the Florida Water Plan is an important first step. A recent internal reorganization within DER has placed the State Water Use Plan and 208 Planning all within one Bureau to en­ hance this integrative process. As 208 plans begin to come in--between now and next November--they are being reviewed and compared to WMDs' water use plans for consistency. Within the past few months, meetings between the 208 agencies and WMDs have been called to discuss the integration of quantity and quality. In terms of permitting, DER has begun limited delegation of water quality authority to the WMDs, expecially in regards to non-point pollution, best man­ agement practices, and surface water management. For the foreseeable future, point source permitting will most likely stay with DER, but non-point water quality permitting will be delegated to the WMDs as part of their surface water management permitting process. This has already occurred with the South Flor­ ida WMD, with its "Basis for Review of Construction of Works" rule which in­ cludes quality considerations and the requirement for best management practices. With respect to streamlining permitting and avoiding duplicative permitting, the DER and WMDs have worked out interagency agreements to do joint permitting on some areas which affect both agencies, such as artificial recharge. In other areas, joint review of permits occurs. There has also been a major push to co­ locate DER district and WMD offices to . increase coordination. DER has pursued this same philosophy in its relations with other agencies, including joint per­ mitting with the Corps of Engineers on dredge and fill projects, and inter­ agency agreements with the Department of Natural Resources and Game and Fish Commission on aquatic weed control. Finally, regarding relationships between DER and· the WMDs, as noted above, the WMDs will retain their water quantity authority, and, most likely, gradually incur some water quality permitting. The DER will most likely turn more of its energies to development of state level policy; coordination of WMD activities; increased attention to federal water programs and policies, particularly the public works programs which receive strong emphasis in Florida and national water policy. In this regard, DER has worked closely with national water pol­ icy developments to get funding for non-structural flood control, increased emphasis on restoration of damaged natural systems, and other similar measures. Also, DER should direct more of its energies to coordinating water quantity and quality planning and programs with its neighboring states to the north, the source of some of the state's major· rivers such as the Apalachicola and Suwan­ nee. 95 By way of summary, the legal and administrative systems for water allocation and management in Florida are, from the state agency perspective, well founded, well constructed and, on the whole, eminently workable systems. These systems have some squeaks and grinds, require some fine tuning, and don't always func­ tion ideally. But in comparison to other available systems and in view of the progress Florida has made in only a few short years, they appear to provide an altogether efficient and durable vehicle by which to ensure the judicious use and management of Florida's water resources, both now and in the future. FOOTNOTES 1. Fla. Stats., ch. 373 .. 2. Cross-keys Waterways Association, Inc. v. Reubin Askew et al. 3. Postal Colony, Inc. v. Reubin Askew et aZ. 4. Fla. Stats., ch. 23. 5. Id., sec. 373.501. 96 WATER RESOURCE PROBLEMS (Florida) ·-~ · 1. Surf ace Water Law Water Withdrawal uses and allocation 5 Instream uses 3 ----·~-Saline water intrusion 5 Land use relationships 5 Property damage 2 Ownership of submerged lands 1 Conjunctive use surface & ground water Protection ground water recharge areas Emergency use 3 Interbasin transfer 3 Interstate effects 3 Shoreline protection 2 Wetland protection 5 Public access 3 Reservation of reservoir sites 2 Water Administration Allocation standards & criteria 5 Data bases 4 -Permit procedures 1 Regulation & enforcement 1 Agency structure & functions 1 Please mark as to priority using following code: 5 highest i l 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water 5 5 5 5 5 5 2 2 4 4 5 5 3 3 2 1 1 1 5 5 2 5 5 4 4 1 1 1 1 1 1 Rating of 4 or 5 indicates a belief that the problem is considered serious an.d that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address the problems. 97 FLORIDA QUESTIONS AND ANSWERS Q. I would like to get some tips on how to convert pork barrel expenditures for enhancing water resources. In the case of an $11 million channeli- zation project, we suggested to the Corps of Engineers that the ideal thing to do was to take this 11 million and dedicate the river as a scenic river. They had already bought the easements. But they were not too impressed with that idea. How do you take this money that was intended for some project and turn it around and do something beneficial? A. The trick there is the attitude of the legislative delegation. In Florida we have two or three coming down the pike, including the whole question of the cross state barge canal which the Corps now is actually reconnnending, as I understand it, as a major restoration project. The Corps is flexible; if the public is for restoration, it may become just as big a deal as the original construction. Q. They are going to stay busy. A. Well, precisely. It really goes to public attitudes to a large extent. You have got to convince them on two fronts. You have to show an economic advantage for the alternate solution to the problem, and that is what the barge canal will do, for example. The second thing is the environmental con­ cern. The barge canal is pretty devastating. So river restoration is being studied. We have spent some $40 million to channelize the thing; now we may spend another $40 million to dechannelize it. Part of the answer too, I suppose, is that you have to get the agency to be­ lieve that you are environmentally conscious. There is a turnover in the Corps in the District Engineer position. A new District Engineer took the position several years ago in the upper St. John's River, where they have a similar need to have some restoration of the water supply of the marsh area because there isn't enough water in the river. They are turning around simply because of new leadership. You have to recognize that agencies in a sense are created by politics. Q. How about protection of low flows? A. Let us look at the natural flow, the natural delivery schedule, and try to recreate that as much as possible. As far as our lakes are concerned, they should be kept at the historical level. We have a 30-year history for deter­ mining level controls. Q. You used the term "consumptive use" continually in the presentation. I just wondered how in Florida they could define consumptive use. A. It does not mean consumption necessarily in the sense that the water dis­ appears. Of course in the hydrologi.c cycle, it doesn't disappear anyway. 98 Agriculture consumes water in the sense that it is put on the land and lost by evaporation. But a city may consume water in the sense that it runs it through its system and then discharges it somewhere els'e--perhaps into an ocean through a creek. So really the word consumption isn't exactly the right word--the water is diverted from the area where it was. Q. If you take the water, use it, and discharge it very near the same spot-­ is this still defined as consumption? A. It would be, yes. Q. So withdrawal is really what you are talking about. A. Yes. Q. I would like to raise the question about the financing of the planning of water resources in Florida. Have they considered the possibility of going to the user fee, a permit charge, or a transferable permit in place of the prop­ erty tax? A. The Water Resources Act of 1972 was considered by the legislators who sup­ ported that Act to be the state mandate for aspects of water and land manage­ ment such as planning and the administration of all the regulations. Other things that wer~ perhaps more local are taken care of by local property taxes. Now, as ·a matter of fact, the state never thought that they would put a lot of money into this--between $400,000 and $500,000 per district per year. Now to the question about permit fees and user fees. User fees have not been used in Florida on any large scale since 1948. It used to be that it was a user fee kind of thing, but the rural-dominated legislature said to the lower east coast urban types: "A few characters want a new project down there to protect you from floods; us farmers want to quit carrying the freight, and we are not going to have any user fees anymore. We are going to have to pay for it out of the state treasury and general local property taxes.11 And that is the way we have been ever since. From time to time the equity of that is raised-­ whether or not some of these complicated drainages and flood control and irri ­ gation systems ought not to be levied on the people who are the prime bene­ ficiaries. We also use permit fees, and there is a feeling now that application fees ought to pay for the cost of the permit. That would put a pretty heavy burden on a lot of people. Processing of paper is pretty expensive, so there is a tendency not to charge the full value even though the thought is appealing. · Most of the money the water management district is spending at this point is for the purpose of water supply for the heavily populated low east coast areas--to recharge the ground water in dry periods to keep the ocean out. There is nothing between our fresh water supply in South Florida and the ocean. There is nothing to keep the ocean out. So what I am saying is that as the population keeps increasing in that area, their dependence on the project for water keeps increasing. So even if you went back to the user charge thing at this point in time, most of the cha·rges would be for water supply benefits that weren't even envisioned very modestly when the project was initiated. 99 Let me add one comment. One of the policies of the water element of the state­ wide plan is that the financing and fiscal management of water allocation, water projects, and water management should be based on the concept that bene­ ficiaries pay to the extent practical. That doesn't mean that it is going to be done in every case, but it does set a statewide policy that the user pays. Q. Is the permit transferable? A. You mean among users. Q. Among users, yes. A. It is. It depends on the district--you mean if farmer A has a permit to sell for x amount of water? Q. Suppose he acquires a permit and wants to transfer. A. No sir, he has to come and get a new permit • . Q. What happens if he acquires a permit and doesn't use it? A. If he doesn't use it, it lapses under our rule. One of the things that our district does is the monitoring of our permits. We put a substantial amount of effort into keeping up .with the conditions of the permit. You might look at that permit check list in the paper--if you see a fair check it probably means we have a problem. If that permit is issued, and I think we did issue it at the board meeting, there would be substantial conditions. That . is what happens--the permit doesn't get turned down absolutely, but gets approved sub­ ject to conditions. Monitoring what has been permitted for compliance with conditions is how we pick up whether a permit is being used or not. Q. Water can only be used on the land? A. Right. You can't take care of a million dollar a day thing and sell it to a farmer somewhere else. Q. Would there be demand for that? A. I haven't heard of any or thought of that till you raised the question, and I have been sitting on the board ever since we started permitting. Q. So it is not limited to riparian land? A. It can be transferred from riparian land, but you have to get the authority from a permitting agency to do it. Q. You mentioned the situation of condominium development. Is there any pro­ vision for a developer to go out and buy water from somebody that has it? A. That particular situation has been an outgoing saltwater intrusion problem. The long-run solution to the problem in that area is to relocate the well fields further west of the municipal water intake. In the meantime this 100 character has a condominium and doesn't have any hook-up for water. There would be no problem from the point of view of the regulatory system if he could find someone who has an existing permit who has surplus water at the moment-­ temporarily purchasing that and putting in a temporary pipe line to get it. The trouble is, I don't think there is anyone c lose to them that has any extra water. Q. That area is allocated? A. Yes, it is fully allocated--largely becaus e of s altwater intrusion prob­ lems. Down the road a little bit they are going to have to relocate wells; generally speaking to the west, we have a special saltwater intrusion monitor­ ing program that I mentioned to you, and we have 25 different utility systems going on in the district in the area of saltwater intrusion problems. Gener­ ally speaking, the solution to it is to move well fields further west. The trouble is you can't keep doing that forever. You have to manage the whole aquifer so that when we make this last move of well fields to the west, we don't mess it up anymore. Once you get even further to the west, the aquifer goes away. It is no longer any good. This is a miniature of a much bigger problem t hat faces the Melbourne area where Cape Canaveral is. They are relying on surface water from the Upper Saint Johns River coming out of the lakes. Meanwhile they channelized the river, and there isn't much water there. A big development corporation has gone in and sold 60,000 lots. If their projections come true by the year 2000, there will be four times as many people there as there are now. Yet there is not enough water for anybody else to move in. They are probably going to have to go to the next county to the west. Q. At some time aren't you going to have some kind of balance of water taken out eq~al to the water coming in? A. Absolutely, and that is part of the whole management program. We haven't quite got that because we are still in the midst of doing planning and per­ mitting at the same time. But we are balancing the resource right now in that area. Let me make a comment in that particular area. What happened was that really before they got a handle on that, under the old drainage acts when the circuit court could set up a drainage district, a b i g drainage district was set up to dike off the marsh. Where the water would have run off to the St. John's River, they are running it east and dumping it into the Indian River, which is an estuary. The water is therefore lost to the system. So the peo­ ple who are in that area where the water is running east need to have the water put back in the marsh. Q. Do you have an extensive set of criteria and regul ations to go with the permitting process? Are there projections and l ong-r ange schemes to meet requirements of future development? Are permitt i ng and planning tied together? A. The answer to all of that is yes. Except t ha t all of it hasn't been com­ pletely brought on line yet. In the interim period when the planning process is not complete, and when the data collection process is not complete, we take a very conservation point of view. If a lar ge developer wants to come in 101 and draw x million gallons of water from the ground, we will only allocate to that developer the amount of water that is represented by the recharge going into the aquifers from that land. There is a lot of pressure on us to become the land use control agency. It takes the political heat off the counties and cities. They can look to us and say that they can only allow 2 million people because that is all the water the district is going to give them. We do try to give them an accurate pic­ ture of what we think the resource is going to generate so that they can make their own land use plans. In light of that, we are doing an increasing amount of work with the cities and counties on their land use plans. One final comment. What exactly has happened is that as we get a better handle on this resource, as we understand more and more about what the resource is like and how much water can be pulled out of that aquifer, what kind of surface water management system we can have, we are having a bigger and bigger impact on the behaviors of cities and counties on their land use. What is happening is that people are looking for the first time at what population level their present zoning system would produce. Zoning boards historically have never looked at that. .102 · Georgia 103 Withdrawal Uses WATER LAW IN GEORGIA Robert S. Bomar Senior Assistant Attorney General Georgia Department of Law Atlanta, Georgia SURFACE WATER WITHDRAWAL USES AND ALLOCATION Most jurisdictions east of the Mississippi River, including the State of Geor­ gia, follow the doctrine of riparian rights. As a general rule in this state [A] "riparian proprietor" is a landowner whose land is either bounded or crossed by. a watercourse. He has cer..:. tain legal interests in connection with such a watercourse which are not common to the citizens at large and which are known as "riparian rights." These rights are limited to riparian land. If a tract of land is large and a part of it extends outside the watershed of the watercourse, then this portion is not riparian land, even though con­ tiguous to riparian land.l Georgia's riparian rights doctrine has been codified as follows: Running water, while on land, belongs to the owner of the land, but he has no right to divert it from the usual chan­ nel, nor may he so use or adulterate it as to interfere with the enjoy~ent of it by the next owner.2 The owner of land through which non-navigable 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 reason­ able use of it by other riparian proprietors; and the di­ verting of the stream, wholly or in part, from the same, or the obstruction 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 trespass upon his property.3 Probably the best judicial interpretation of the above language can be found in the case of Prince v. High Shoals Manufacturing Co.,4 wherein can be found the following language: Under a proper construction of the Civil Code, Secs. 3057, ·104 3802, 3879, every riparian owner is entitled to a reason­ able use of the water in the stream. If the general rule that each riparian owner could not in any way interrupt or diminish the flow of the stream were strictly followed, the water would be of but little practical use to any proprie­ tor, and the enforcement of the rule would deny, rather than grant, the use thereof. Every riparian owner is en­ titled to a reasonahle use of the water. Every such pro­ prietor is also entitled to have the stream pass over his land according to its natural flow, subject to such dis­ turbances, interruptions, and diminutions as may be nec­ essary and unavoidahle on account of the reasonahle and proper use of it by other riparian proprietors. Riparian proprietors have a common right in the waters of the stream, and the necessities of the business of one can not be the standard of the rights of another, but each is en­ titled to a reasonable use of the water with respect to the rights of others. What is a reasonahle use i$ a question for the jury in view of all the facts in the case, taking into consideration the nature and use of the machinery, the quantity of water used in its operation, the use to which the stream can be applied, the velocity of its cur­ rent, the charac.ter and size of the watercourse, and the varying circumstances of each case. [Emphasis addedJ. Although the Georgia Supreme Court recognized the riparian right to a "reason­ able" use of a stream very early,5 the few Georgia decisions on this point ~f­ ter 1860 have failed to establish any clear-cut guidelines for the reasonable­ ness of a particular use. As noted from the language in Prince, any such determination generally turns upon questions of fact to be decided by a jury. However, it would appear that diversion of a portion of a stream for nonr~pa*­ ian uses within the watershed is not a protected right. In Hendrix v. Hobe~ta Marble Co.,6 the court adopted the trial court's opinion which stated: The court is of the opinion that under the law riparian rights are appurtenant only to lands which actually touch on the watercourse, or through which it flows, and that a riparian owner or proprietor can not himself lawfully use or convey to another the right to use water flowing along or through .his property, upon nonriparian lands or lands physically separated from the lands bordering upon the stream. However, circumstances may alter cases. For instance, the Georgia courts pave held that the right to invade a riparian proprietor's rights may be opf~ineq py grant or by prescription through an adverse user.7 And on at least qq~ pcp~­ sion the Georgia Supreme Court held that relief will be denied i~ ~h~ cpm~ plaining riparian owner fails to act with reasonable promptness. A major issue which arises in this area concerns the rights of mun:Lcipa..U.i:ies to withdraw large quantities of water for their citizens' domestic ne~q~, ~he 105 question arises as to whether or not a city bordering a stream has the right to divert a portion of the stream for domestic consumption on privately-owned prop­ erty within the city limits. In Elberton v. Hobbs,9 a municipality which was not contiguous to a watercourse was enjoined from transferring water from a small piece of riparian land which it owned into the city proper. There are no Georgia cases, however, involving the diversion of water by a municipality con­ tiguous to a stream for use on privately-owned nonriparian property located within the city limits. It has been suggested that Georgia would follow the general rule and limit the use of water to riparian land actually owned by the city.10 In such case, the city would have the option of using its eminent domain authority to pay for diversion rights. At least one jurisdiction has taken a contrary view, however.11 Allocation In 1977 the General Assembly of Georgia enacted a surface water allocation meas­ ure.12 This law was enacted as an amendment to the Georgia Water Quality Con­ trol Act.13 Under the provisions of this law, a permit is required for any withdrawal, diversion or impoundment of surface waters involving more than 100,000 gallons per day on a monthly average. The Georgia Board of Natural Resources is authorized to adopt rules and regulations establishing a reason­ able system of classification for application in situations involving com­ peting applications for a supply of available surface waters. Such classifi ­ cation must be based upon various factors set forth in the law. In the event two or more applicants qualify equally, the director of the Environmental Pro­ tection Division may grant permits for use of specified quantities of surface water on a prorated basis when such action would be feasible. Furthermore, in most cases, permit applicants who were withdrawing, diverting or impounding surface waters prior to the effective date of this law will receive permits authorizing withdrawal, diversion, or impoundment of surface waters in amounts equivalent to their prior uses. Withdrawals, diversions, or impoundments of surface waters for farm uses are exempted from the permitting requirements of the Act. With regard to applications for permits which, if granted, would authorize the withdrawal an4 transfer of surface waters across natural basins, the director must give due consideration to competing applications for permits which would not involve interbasin transfers. In addition, the director must issue a press release regarding issuance of all permits authorizing interbasin transfers at least seven days before the permit issuance. Prior to the passage of the surface water allocation law, certain legal com­ mentators had argued that any modification of "vested" riparian rights in Geor­ gia would require a constitutional amendment. However, others had argued that laws which, in fact, operate to shelter and enhance private rights of well ­ defined, common law origin (riparian rights in this case) should not be viewed as a "taking" without adequate compensation. It could also be argued that in Georgia there is no overriding just-compensation problem attendant upon regula­ tion through police powers of the use of surface-water resources inasmuch as the owner of the riparian estate has no property in the water, but a simple usufruct while it passes along.14 106 In addition to the above, section 17 of the Georgia Water Quality Control Act (of which the surface water allocation provisions are a part) provides as fol­ lows: Nothing in this Act alters or abridges any right of action now or hereafter existing in law or equity, civil or crim­ in~l, nor is any provision of this Act construed as stop­ ping any person, as a riparian owner or otherwise, from exercising his rights to suppress nuisances or to abate pollution now or hereafter existing~ . Consequently, even if riparian rights are construed as a property right, the above provision insures that there has been no "taking" of such property rights. The water allocation provisions simply shelter and enhance such rights. GROUND-WATER WITHDRAWAL USES AND ALLOCATION Withdrawal Uses In Georgia, the courts have distinguished between the withdrawal uses of per­ colating waters and subterranean streams. Percolating waters are not moving through the earth in known and defined channels. " ... [G]round waters of this class are not 'subsurface' or 'underground streams with defined channels,' or 'water flowing in a well defined channel.' Rather they are waters 'per­ colating, oozing, or filtrating through the earth. "'15 There is a dearth of cases in Georgia on the ownership rights in percolating waters. In the original case, Saddler v. Lee 3 l6 the court stated that perco­ latii:ig water which "filters from the land of one p.roprietor to that of another, gives the latter no rights thereto which the law can recognize." However, in St. Amand v. Lehman 3 17 one landowner sought to enjoin another from blasting a well on an adjoining lot. He alleged that the construction was for the sole purpose of destroying a mineral spring which was fed by an underground stream running under defendant's land. Defendant answered by denying the existence of an underground stream. The supreme court allowed a temporary injunction pending the outcome of a jury trial on the issues. The court observed that if the defendants were "actuated by malice in wasting or diverting the water," the injured party should prevail whether or not an underground stream existed. It would appear that malice must be shown in such a case, and no relief would be granted ~f an unintentional or negligent waste of percolating water was in­ volved . . There are no G~orgia cases dealing with a situation of a use of per­ colating waters off an individual's land. With regard to subterranean streams, the supreme court in Stoner v. Patten18 held that non-malicious interference with underground waters is non-actionable unless the waters are part of a stream which "is well defined and its existence known or easily discernable." If the existence of such a stream is established, the courts wfll apply the rules governing surface streams. However, in the majority of cases, a plaintiff will labor against a rebuttable but strong pre- sumption that .the underground waters in dispu~e are merely percolating. · 107 Allocation In 1972, the Georgia General Assembly enacted the Ground-Water Use Act of 1972.19 This Act provides that no person shall withdraw, obtain or utilize ground waters in excess of 100,000 gallons per day for any purpose unless such person first obtains a permit from the Environmental Protection Division. If sufficient evidence is provided by the applicant that the water withdrawn or used from the ground is not consumptively used, a permit will be issued without a hearing on conditions contained therein. The Act exempts from the permitting requirements persons utilizing or withdrawing water for agricultural purposes or for poultry processing purposes. The Act defines "ground water" as follows: water of underground streams, channels, artesian basins, reservoirs, lakes and other water under the surface of the earth, whether public or private, natural or artifi ­ cial, which is contained within, flows through, or borders upon this State or any portion thereof, including those portions of the Atlantic Ocean over which this State has jurisdiction. The Environmental Protection Division is authorized to promulgate regulations concerning the use of ground waters, including, among other things, provisions concerning timing of withdrawals, protection against saltwater encroachment, prevention of unreasonable adverse effects on other water users within the area, well depth and spacing controls, pumping levels, and pumping rates, Per­ sons withdrawing ground water prior to the Act will be granted a permit ·meet­ ing such persons' reasonable needs as existed prior to the Act. The director is authorized to take into consideration in the granting of permits the prior investments of persons in lands and plans for the usage of water in connection with such lands. DIFFUSED SURFACE WATER AND DRAINAGE WITHDRAWAL USES Most of the law in Georgia pertaining to diffused surface water and drainage is a product of judicial decision. It is similar in many respects to riparian law. The landmark decision in this area of the law is The Mayor and Council of Al­ bany v. Sikes. 20 In that case the defendant city altered its land so as to divert it on plaintiff's property. The court compared the "common enemy" and "civil rule" doctrines and adopted the latter. The court's ruling for the plaintiff was predicated on a requirement of the Georgia Constitution that just compensation be made for property damaged by the City. The civil rule imposes a servitude on the lower land owner to receive the natural flow of surface waters from above. Consequently, the lower owner may not back up the waters to the higher level by obstructing their flows, With one isolated departure, strict application of the civil rule has been followed by the Georgia courts without any allowances for development of unimproved land. In Edgar v. Walker, 21 the supreme court upheld a verdict for defendant on the 108 ground that the plaintiff could not recover if she herself caused the overflow by negligently failing to remove debris on her land. However, this holding has not been followed in subsequent decisions. Furthermore, Georgia courts have declined to distinguish between the owner of urban and rural lots. In terms of statutory law, the ''Rice Cultivation" statute allows a form of pri ­ vate eminent domain which permits an upper owner to extend his drains over lower land upon payment of adequate compensation to the lower owner. Other legislation establishing county drainage districts and authorizing eminent domain power has been upheld by the Georgia Supreme Court as a valid exercise of the sta·te' s police power. The rationale of this decision should support .' enactment of the state's soil and water conservation district laws. In Georgia, polluting the diffused surface water to the damage of a lower owner is actionable as a nuisance. However, the upper owner can secure a right by prescription or grant to pollute the lower land if such pollution does not , constitute a public nuisance.22 INSTREAM USES The most common instream use is the construction of works for generating electricity by water or steam power. In the Colonial Period, "mill ·dam" stat ­ utes were enacted allowing the first riparian appropriator of water power the right to impound water which would back-up and overflow upper lands, subject to the payment of damages. Present statutes allow such undertakings for the pur­ pose of generating electricity for the public.23 This statute was upheld, with the supreme court finding "public purpose" in the public need for light, heat and power and the need to encourage the private development of the state's natural water resources.24 Another provision of the law authorizes dams for various purposes and consequent overflow, subject to payment of compensation.25 However, dams which cause back-up and overflow onto a neighbor's upper land provide a cause of action for damages when the obstructor is not within the shelter of the above statutes. With regard to "loss of head" to lower ripar­ ian owners through ;construction of a dam, Georgia courts have permitted this if the natural flow resumes when the reservoir is filled up. 26 However, if the upper dam results in material injury to the downstream riparian owner, the upper obstructor is liable in damages to the lower owner. In a case where the court found that the power demand of the defendant's mill exceeded the natural flow of the stream, the court concluded that the lower mill owner was under no duty to build his own dam.27 Furthermore, conduct which causes the rate of flow to exceed the natural flow and consequently ' results in the overflowing of a lower owner's land · is action­ able. This is the case when the conduct is the removal of a natural obstruc­ tion or the untimely detention and release of the natural flow. 28 There is no duty, however, to remove a natural obstruction which causes water to overflow another's land.29 As discussed earlier, Georgia law now requires any person who impounds surface waters of th'e state so as to reduce the flow innnediately downstream of the im­ poundment by more than 100,000 gallons per day on a monthly average to obtain a 109 permit from the director of the Georgia Environmental Protection Division.30 However, no permit is required for a reduction of flow during the periods of construction of the impoundment, including the initial filling of the impound­ ment. SALINE WATER INTRUSION As discussed earlier, the Ground-Water Use Act of 197231 authorizes the Georgia Environmental Protection Division to promulgate regulations concerning the use of ground waters which "protect against or abate saltwater encroachment." This law is Georgia's primary weapon to guard against saline water intrusion. LAND USE RELATIONSHIPS Presently in Georgia there are two general laws of statewide application and one general law of regional application designed to regulate land use as it affects the waters of the state. Section 10(4) of the Georgia Water Quality Control Act32 provides as follows: Any person desiring to erect or modify facilities or com­ mence or alter an operation of any type which will result in the discharge of pollutants from a non-point source into the waters of the State, which will render or is likely to render such waters harmful to the public health, safety, or welfare, or harmful or substantially less useful for domes­ tic, municipal, industrial, agricultural, recreational, or other lawful uses, or for animals, birds, or aquatic life, shall obtain a permit from the Director of the Division of Environmental Protection of the Georgia Department of Natu­ ral Resources to make such discharge. The definition of npollutants" includes, among other things, dredged spoil, sol~d waste, garbage, wrecked or discarded equipment, rock, sand, and cellar dirt. The word "non-point source" is defined as any source which discharges pollutants into the waters of the state other than a point source. In essence, this means any conveyance which is not discernible, confined, or discrete. The above provision should aid the state in seeking delegation of the federal sec­ tion 404 dredge and fill permitting program under the Federal Water Pollution Control Act Amendments of 1972,33 as amended by the Clean Water Act of 1977.34 In 1975 the General Assembly adopted the Erosion and Sedimentation Act of 1975.35 In adopting this Act, the General Assembly found " ... that soil erosion and sediment deposition onto lands and into waters within the water­ sheds of this State are occurring as a result of widespread failure to apply proper soil erosion and sedimentation control practices in land clearing, soil movement and construction activities ..•. " This Act sets forth certain cri ­ teria governing land-disturbing activities and authorizes the governing author­ ity of each county and municipality to adopt a comprehensive ordinance govern­ ing such land-disturbing activities. In the event a county or municipality fails to adopt such an ordinance within two years after April 24, 1975, the 110 Georgia Board of Natural Resources must adopt regulations, with the advice and consent of the Soil and Water Conservation Committee, governing the land-dis­ turbing activities in any such municipality or county. Any person who wishes to conduct a land-disturbing activity must secure a permit from the city or county governing authority or the director of the Environmental Protection Division in those areas governed by Board regulation. No permit may issue un­ less the submitted erosion and sediment control plan is first approved by the appropriate Soil and Water Conservation District. There are several exemptions established in this Act, including many agricultural practices and projects involving land change to five acres or less or the movement of not more than 500 cubic yards of land, unless the activity is within 200 feet of the bank of a stream or river which drains at least a land area of 100 square miles. With regard to regional control of land use as it affects state waters, the General Assembly enacted the Metropolitan River Protection Act in 1973.36 The purpose of this Act is set out as follows: The purpose of this Act is to provide a flexible and prac­ tical method whereby political subdivisions in certain metropolitan areas may utilize the police power of the State consistently and ~n accordance with a comprehensive plan to protect the public water supplies of such politic.al subdivision and of the area and to prevent floods and flood damage, to control erosion, siltation and intensity of development adjacent to major streams in such areas for such purposes, and to provide for comprehensive planning for stream corridors in such areas. This Act calls for the Metropolitan Area Planning and Development Commission to prepare a coordinated land and water use plan for the stream corridor (gener­ ally, all land in the area within 2,000 feet of the watercourse). The Act makes it unlawful to build in the stream corridor if such construction will be incompatible or inconsistent with the plan. Metropolitan areas covered are those with a population of more than 1 million according to the United States Decennial Census of 1970, or any future such census. The regulatory functions under the Act are shared between the local political subdivisions (city or county wherein the construction is to occur) and the Planning and Development Commission. The Act declares that no such construc­ tion. shall take place until the governing authority of the political subdivi­ sion issues a certificate' for the proposed use. However, the Act declares that such certificate shall not become effective until reviewed by the Planning and Development Commission. If the Commission fails to recommend modification of the certificate within 60 days from its submission, the certificate becomes ef­ fective as issued. If the Commission recommends modification of the certifi ­ cate, the governing authority may adopt such recommendation and incorporate it as a condition of the certificate; override the recommendation by affirmative vote of a majority of the full memebership of the governing authority; or re­ quest reconsideration of such recommendation by the Commission at a public hearing. To date, this Act has withstood attacks in both the federal and state courts. 111 In Pope v. City of Atlanta, et az.,37 the district court held that the Act did not violate the Fifth and Fourteenth Amendments to the U.S. Constitution as a taking of private property for public purposes without just compensation. This action involved construction of a tennis court within 150 feet of the Chatta­ hoochee River. Failing in federal district court, plaintiff commenced an action in state superior court alleging that the Act violated her state due process and eminent domain rights and was an attempt by the state to exercise zoning powers dele­ gated to local governing authorities. In Georgia, the state may delegate zon­ ing powers to local political subdivisions but cannot zone herself. The Geor­ gia Supreme Court ruled on appeal that the Act did not constitute an attempt by the state to zone property, but the high court sent the case back to the superior court for a determination regarding the due process and eminent domain issues.38 The superior court recently ruled that the Act did not violate the plaintiff's due process and eminent domain rights. PROPERTY DAMAGE The matter of private causes of action resulting from water uses of surface water, ground water, and diffused surface water and drainage has already been discussed above. In addition, however, the Georgia Water Quality Control Act39 contains a provision allowing the state or any political subdivision to bring a civil action for damages against any person who causes or permits pol­ lutants to be spilled, discharged, or deposited in the waters of the state, resulting in pollution of such waters. The amount of the damages asses~ed may include clean-up costs, and expenses incurred in replacing aquatic life destroyed by such spills, discharges, or deposits. Strict liability is im­ posed on spills of toxic, corrosive, acidic, caustic, or bacterial pollutants. OWNERSHIP OF SUBMERGED LANDS In early 1970, the Attorney General of Georgia issued a position paper which asserted that the State of Georgia is the legal owner to much, if not all, of the state's marshlands. The position was based on the common law rule that the sove~eign owns all land subject to the ebb and flow of the tide and that the State of Georgia succeeded to the rights of the English Crown.40 Involved in this legal opinion was an Act passed in 1902 which provided that the "title" to beds of all non-navigable tidewaters vested in the owner of the adjacent land and the "boundaries and rights" of owners of land adjacent to navigable tide­ waters extended to the low-water mark in the bed of the water.41 This law was later ratified by its inclusion in the 1945 Georgia Constitution. The language of the 1902 Act would at first blush appear to vest title to the beaches and marshes in the adjacent landowner. However, for various reasons, the Attorney General concluded that the above Act did not have that effect. The first test of that position came in 1976 in the case of State v. Ashmore42 where the issue of the ownership of the foreshore (beach land between high and low tide) was placed squarely in the lap of the Georgia Supreme Court. This case was obviously dealing with land adjacent to navigable tidewaters (the 112 Atlantic Ocean), and therefore the case turned upon a construction of the "boundaries and rights" provision of the 1902 law. The supreme court majority adopted the state's argument that section 3 does not convey title to anything but grants merely the exclusive right to oysters and clams. The court arrived at this conclusion by examining the history of the Act and determining that the purpose was to promote the oyster industry and to allow prosecutions for poach­ ing of oysters. The court contrasted section 3 with section 1 which deals with title to the beds of non-navigable tidewaters and noted that section 3 does not mention any conveyance of title, but refers only to rights. The court con­ strued such rights to be only a privilege or a license. The court noted that it was following the general principle that a public grant must be strictly construed against the grantee and that nothing is taken by implication. The decision in the beach case, while not controlling, will offer strong sup­ port for the state's position in any future case involving resolution of the question of ownership of marshlands. At any rate, the provisions relating to the foreshore of navigable and non-navigable tidewaters are governed by the following language in the 1902 Act: Provided, however, that nothing in this or the two preced­ ing sections shall be so construed as to authOiize such an exclusive appropriation of any tidewater, navigable or no.n­ navigable, by any person whomsoever, as to prevent the free use of the same by others for purposes of passage and for the transportation of such freights as may be capable of being carried thereover. One justice who dissented in the Ashmore case discussed the reservation of pub­ lic rights in some detail and concluded that the 1902 Act reserved rights sub­ stantially broader than the public rights recognized or preserved under the connnon law trust or public trust doctrine. It was his opinion that the pro­ viso reserves the right not only to use the waters which cover the foreshore but also to use the land of the foreshore for passage by boat, vehicle, or on foot. PROTECTION OF GROUND-WATER RECHARGE AREAS Although there is no law in Georgia expressly dealing with recharge area pro­ tection, control in this area can be exerted through the Ground-Water Use Act of 1972.43 As was mentioned earlier in this paper, the ground-water act au­ thorizes the Georgia Environmental Protection Division to promulgate regula­ tions concerning the use of ground waters. For instance, regulations provide that a permit for a consumptive use may contain such conditions as well depth, ground-water system to be utilized, maximum pumping rate, pumping level, quantity of ground water to be withdrawn, well spacing, and time of with­ drawa1. 44 Furthermore, a permit is required for the withdrawal of ground water in excess of 100,000 gallons per day for dewatering the subsurface rock if withdrawn at a depth of greater than 30 feet.45 Consequently, it appears that the ground-water act is adequate to protect ground-water recharge areas. 113 EMERGENCY USES Both the surface water allocation amendments to the Georgia Water Quality Con­ trol Act and the Ground-Water Use Act of 1972 contain emergency provisions. Section 9 of the ground-water act authorizes the issuance of an emergency order reciting the existence of such emergency and requiring such action be taken as the Environmental Protection Division deems necessary to meet the emergency. Such order takes effect innnediately but an aggrieved party, upon application, may obtain a hearing within five days from the issuance date of the order. Section 10A(l2) of the Georgia Water Quality Control Act likewise authorizes the director of the Environmental Protection Division to issue an emergency order imposing such restrictions on one or more permits previously issued as may be necessary to adequately protect such citizens or water resources. The di­ rector is authorized to impose such restrictions based upon a reasonable sys­ tem of classification established by the Board of Natural Resources. Factors to be considered in such a system are set forth in the Act. The order is im­ mediately effective on receipt, but the aggrieved party is allowed a hearing within 20 days of receipt of application for same. Before any emergency order is issued for either ground-water or surf ace water use, the agency must receive an affidavit from an individual setting forth facts supporting the existence of an emergency situation for which innnediate action is needed to protect · the health or welfare of the affected citizens. INTERBASIN TRANSFERS Case law indicates that, as a general rule, interbasin transfers of water could be enjoined at the instance of an affected lower riparian owner. The Georgia Supreme Court quoted, and adopted as its own, a statement of a lower court which said: • a riparian owner or proprietor cannot himself use, or convey to another the right to use water flowing along or through his property, upon nonriparian land or lands phy­ sically separated from the lands bordering upon the stream,46 [Emphasis added]. Inasmuch a·s the definition of riparian larid generally combines the "unity of title" rule, that is, contiguous land to the banks of the watercourse, with the requirement that such land be in the same watershed, interbasin transfers would necessarily involve use of waters on nonriparian lands. In addition, interba­ sin transfers of water would appear to violate the rule that water diverted but not consumed by a riparian owner must be returned to the stream before it passes his land. Decisions of the Georgia Supreme Court have not deviated from this rule, both with regard to water returned to the stream below the land of a lower riparian owner47 and water diverted to another stream.48 However, prescriptive rights could alter the general rule on interbasin trans­ fers. Furthermore, the Georgia courts have not clearly delineated the rights and duties of riparian owners on navigable streams. 114 Some .writers feel that policy is on the side of such transfers and that the mo~ern trend is t-0ward allowing at least some such transfers. Georgia, how­ ever, has not attempted to legitimize such transfers by statute. Although the Georgia surface water allocation law does not prohibit the permitting of interbasin transfers, it does require notice of same prior to the issuance of a permit, and it preserves the connnon law and statutory rights of riparian own­ ers. SHORELINE PROTECTION Presently, Georgia does not have a law of statewide application dealing with shoreline protection. During the recent session of the Georgia General Assem­ bly, the House passed a shore protection bill but it was defeated in the Senate on the last day of the session. Inasmuch as some version of this bill will most probably be passed at some later session, the major features contained therein are detailed below. The bill sets up a permitting system for activities on and alterations of sand dunes, beaches, and offshore bars and shoals that are likely to weaken or sig­ nificantly alter the sand-sharing system. Existing structures, structures necessary for protection of public health, safety, and welfare, and recrea­ tional activities are excepted from the permitting requirements. Local units of government are authorized to enact ordinances meeting the requirements of the Act. The Department of Natural Resources would review such ordinances, and a finding of inadequacy of any such ordinance will result in a finding by the Board for state regulation of such activities within these local units of government. However, the local unit of government would be given 60 days to correct any defect prior to state assumption of the regulatory program. Fail ­ ure t-0 enforce such ordinance would likewise be a ground for state assumption of the program. Each sand dune and beach system would have established for it a Shore Protec­ tion Line. Factors to be considered in establishing such a line would be max­ imum shore accretion and recession based on maximum historical data of at least the last 25 years, storm-surge penetration, wave exposure, dune formations, beach profiles, artificial beach erosion control measures, existing upland development, and any appropriate scientific studies. Such factors would be studied along transects spaced no greater than 500 feet apart. A Shore Protection Committee is established to issue permits in those areas regulated by the state. Such Committee would be composed of the connnissioner of Natural Resources, the director of the Environmental Protection Division, and a third member chosen by the Board of Natural Resources. Such enforcement remedies as administrative orders, emergency orders, injunctive relief and civil penalties are included. WETLAND PROTECTION Notwithstanding the issue of the ownership of the marshlands in Georgia, the General Assembly exercised the state's police powers in enacting the Coastal 115 Marshlands Protection Act of 1970.49 Initially this Act created a Coastal Marshlands Protection Agency consisting of various ex officio state officers to administer the program. In 1972, under executive reorganization, this program was transferred to the Departement of Natural Resources. The key provision in this Act states that "[N]o person shall remove, fill, dredge or drain or otherwise alter any marshlands in this State within the estuarine area thereof without first obtaining a permit from the Coastal Marsh­ lands Protection Agency." The key definition is that of "marshlands" which include those areas upon which grow one, but not necessarily all, of the fol­ lowing: saltmarsh grass, black grass and high-tide bush. Furthermore, the occurrence and extent of salt marsh peat at the undisturbed surface shall be deemed to be conclusive evidence of the extent of a salt marsh or a part there­ of. Various criteria which the Department must apply in determining whether or not a permit will issue are: 1. Whether or not any unreasonably harmful obstruction to or alter­ ation of the natural flow of navigational water within such area will arise as a result of the proposal. 2. Whether or not unreasonably harmful or increased erosion, shoal­ ing of channels or stagnant areas of water will be created to such extent as to be contrary to the public interest. 3. Whether or not the granting of a permit and the completion of the applicant's proposal will unreasonably interfere with . the conservation of fish, shrimp, oysters, crabs, and clams or any marine life or wildlife or other natural resources, including but not limited to water and oxygen supply to such an extent as · to be contrary to the public interest. Enforcement remedies set forth in the Act include administrative orders, civil penalties, and injunctive relief. Exceptions to the Act's provisions include activities of the Department of Transportation incident to road maintenance; agencies of the state and the United States responsible for keeping the rivers and harbors of this state open for navigation; activities of public utility companies regulated by the Public Service Connnission incident to constructing, repairing, etc., utility lines for transmission of gas, electricity, or tele­ phone messages; activities in construction, erecting, etc., railroad lines and bridges; activities of political subdivisions incident to construction, re­ pairing, etc., sewage lines; and the building of private docks on pilings, the walkways of which are above the marsh grass not obstructing tidal flow, by the owners of residences located on highland adjoining such docks. PUBLIC ACCESS As has been discussed earlier, the state contended in State of Georgia v. Ash­ more50 that the foreshore of the beach property in question was held by the state as trustee for the people and that the public had acquired the right to 116 use all of the accreted property (dry sand area) by dedication, custom, or pre­ scription. The court agreed with the state that at connnon law the state held title to the foreshore, as recognized in Johnson v. State.51 However, the court also had to deal with a 1902 Act (which was ratified and confirmed by a provision in the 1945 Constitution) which dealt with the rights and boundaries of owners of lands adjacent to tidewaters. The relevant provision of the 1902 Act provided, in part, as follows: For all purposes, including among others the exclusive right to the oysters and clams (but not to include other fish) therein or thereon being, the boundaries and rights of owners of land adjacent to or covered in whole or in part by navigable tidewaters . . . shall extend to low-wa­ ter mark in the bed of the water . Reviewing the legislative history of the Act and 1945 constitutional provision, and noting that another provision of the 1902 Act specifically dealt with "ti ­ tle to the beds" of non-navigable tidewaters, the court concluded that the legislature intended to grant something less than title. The court held: In our opinion nothing but the right to plant, cultivate and harvest oysters and clams was granted. Such a grant solved the problem of the oystermen. They had the exclu~ sive right to the oysters in the tidal waters next to their adjacent land. In our opinion it is a privilege and a license. The extension of boundaries referred to in Section 3 does no more than establish the extent of the rights. It con­ veys no title to the underlying land. In our opinion the State has fee simple title to the fore­ shore in all navigable tide-waters. The court remanded the issue of whether the public has through dedication, pre­ scription, or custom acquired the right to use the accreted property (dry sand area). At the same time lots adjacent to the beach in question were subdivided, platted, and sold, the plat contained the designation "beach." At that time this area ("beach") consisted only of the 50-foot right-of-way of Beach Drive (the eastern edge of Beach Drive constituted the high water mark), and the area between the high_ and low water marks. The state contends that by such designa­ tion on plat, the original subdividers dedicated, to the use of the general public and the lot owners, Beach Drive and the beach. A number of Georgia cases support that contention. As early as 1852, the Geor­ gia Supreme Court invoked the doctrine of dedication to prevent a public square from being put to private use. The court there noted that "[W]here one being the owner of land consents, either expressly or by his actions, that [property] may be used by the public for any particular purpose, it is a dedication." The owner's intention to dedicate may be manifested in countless different ways--by 117 a writing, by the owner's words, by his acts, or simply by long use on the part of the public. However, "[W]here a plat is made and recorded and lots are sold h h . . . . . . 11 d. t bl 1152 with reference t ereto, t e requ1s1te 1ntent1on 1s genera y un 1spu a e. In order to become effective, the dedication must be accepted by the public. 53 Such acceptance may be either express or implied.54 The proof of continuing use of the property by the public and by the lot owners as the property has accreted over the years is sufficient to establish acceptance of the dedica­ tion. 55 . Once made and accepted, dedication of a particular piece of property is irrevocable.56 Defendants contend that the designation "beach" on the plat is merely graphic reference and that it was never intended that this be a beach a geo- av aila bl e to the prospective purchasers of the subdivided lots or to the public recreational purposes. However, in East Atlanta Land Co. v. Mower, 57 was recorded which named three parks in the Atlanta Inman Park area. case, the court stated that the use of the word "park" was sufficient to create the dedication. for a plat In that The state also contends that the 13 acres of accreted property between the eastern edge of Beach Drive and the low water mark of the Atlantic Ocean are likewise dedicated to the public. Corpus Juris Secundwn58 states: Where land bounded by a watercourse is dedicated to the public use, all accretions to the land so dedicated be­ come subject to the same easement and are held by the same tenure. The state also contends that the public has acquired the right to use the dry sand area under the theory of custom. The law of custom originated in medieval England where persons of a certain locality had the right by immemorial custom to make use of land belonging to an individual. Such use included the right to dance or play games on a particular piece of land belonging to an individual; a custom to go on another's land to get water; a custom for fishermen to dry nets on certain land; and a custom for persons in a certain trade to erect booths upon private land during a fair.59 Initially, the doctrine of custom was recognized in this country only in a few New Hampshire cases. Recently, however, the custom theory has been relied upon by the supreme courts of several states to uphold the right of the public to use beaches without interference.60 The Florida Supreme Court held: The gene~al public may continue to use the dry sand area for their usual recreational activities, not because the public has any interest in the land itself, but because of a right gained through custom to use this particular area of the beach as they have without dispute and without in­ terruption for many years.61 The Georgia Court of Appeals in Seaboard Air-Line Railway v. Sikes62 held that the public has acquired, through custom and usage, a right of passage on a non­ navigable stream. 118 As can be ascertained from the above discussion, access to beaches by way of custom is still a developing doctrine in the law. However, the expanding demand for beach recreation may make "custom" a viable doctrine for this pur­ pose. FOOT:NOTES 1. Agnor, "Riparian Rights in Georgia," 18 Ga. B.J. 401, 402 (1956). 2. Ga. Code Ann., sec. 85-1301. 3. Id., sec. 105-1407. 4. Prince v. High Shoals Manufactoring Co., 132 Ga. 246~ 248 (1909). 5. Hendrick v. Cook, 4 Ga. 241 (1848). 6. Hendrix v. Roberts Marble Co., 175 Ga. "389, 394 (1932). 7. Terrell v. Terrell, 144 Ga. 32 (1915}. 8. City of Elberton v. Pearle Mills, 123 Ga. 1 (1905). 9. Elberton v. Hobbs, 121 Ga. 749 (1905). · 10. Kates, Georgia Water LalJJ, p. 38. 11. Canton v. Shock, 66 .Ohio 19', 63 N.E. 600 (1902). 12. Ga. L. 1977, p. 368 ·et seq. 13. Ga. L. 1964, p. 416 et seq .. , as amended. 14. See, Hendrix v. Roberts Marble Co.,_ supra, note 6; Roberts v. Arnold, 182 Ga. 664 (1936). 15. 3 Farnham sec. 936 2712. 16. Saddler v. Lee, 66 Ga. 45 (1879). 17. St. Amand v. Lehman, 120 Ga. 253 (1904). 18. Stoner v. Patten, 132 Ga. 178, 179 (1909). 19. Ga. L. 1972, p. 976 et seq. 20. The Mayor and Council of Albany v. Sikes, 94 Ga. 30 (1893). 119 21. Edgar v. Walker, 106 Ga. 454, 457, 458 (1899). 22. Bell Indus., Inc. v. Jones, 220 Ga. 684 (1965). 23. Ga. Code Ann., sec. 36-801 (1970 Rev.). 24. Jones v. N. Georgia Elec. Co., 125 Ga. 618 (1906). 25. Ga. Code Ann., sec. 85-1306 (1970 Rev.). 26. See, Poole v. Lewis, 41 Ga. 162 (1870). 27. Price v. High Shoals Mfg. Co., 132 Ga. 246 (1909) . . 28. Grant v. Kuglar, 81 Ga. 637 (1889). See, Baldwin Processing Co. v. Geor­ gia Power Co., 112 Ga. App. 92 (1965). 29. Cole v. Bradford, 52 Ga. App. 854 (1936). 30. Ga. L. 1977, pp. 368, 369-70. 31. Ga. L. 1972, p. 976 et seq. 32. Georgia Water Quality Control Act, sec. 10(4). 33. P.L. 92-500. 34. P.L. 95-830. 35. Ga. L. 1975, p. 994 et seq. 36. Ga. L. 1.973, p. 128 et seq., as amended by Ga. L. 1975, p. 837 et seq. 37. Pope v. City of Atlanta, et al., __ F. Supp. ( D • C • Ga • 19 77) • 38. Pope v. City of Atlanta, 240 Ga. 177 (1977). 39. Ga. L. 1964, p. 416 et seq., as amended. 40. "Legal Ramifications of Various Applications and Proposals Relative to the Development of Georgia's Coastal Marshes," Position Paper of the Attorney General of Georgia (March 16, 1970). 41. Ga. L. 1902, p. 108. 42. State v. Ashmore, 236 Ga. 401 (1976). 43. Ga. L. 1972, p. 976 et seq., as amended. 44. Ground Water Use Regulation 391-3-2-.06. 45. Id., 391-3-2-.09. 120 46. Hendrix v. Roberts Marb'le Co., .supra, note 6, 389, 392. 47. Robertson v. Arno'ld, 182 Ga. 664 (1936) 48. McNabb v. Houser, 171 Ga. 744 (1931). 49. .Ca. L. 1970, p. 939 et seq . ., as amended. SO. State v. Ashmore, supra, note 42. Sl. Johnson v. State, 114 Ga" 790 (1902). S2. Mayor and Council v. Franklin, 12 Ga. 239 (1852). S3. Ga. Code, sec. 8S-410. S4. Carro U v. DeKalb County, 216 ·Ga. 663 ( 19 61) .. SS. Chatham MotoPcycle Cl·ub, Inc. v. Blount, et al., 214 Ga. 770 (1959). S6. Stanfield v. Brewton, -228 Ga. 92 (1971). 57. East At'lanta Land Co. v. Mower, 138 Ga. 380 (1912). 58. 26 C.d.S., Dedication sec. 51 a~ 529 (195~). 59. H. l'iffany, Real "Prope:rty, sec. 935 at 673 {3_d ed. 1939). 60. State ex rel. Thornton v. Hay, 254 Ore. 584 (1969); Daytona Beach v. Tara­ Poma, Inc., 294 So. 2d -73 -(Fla. 1974) .. 61. Daytona Beach, supra at 78. 62. Seaboard Air-Line Railway v. Sikes, 4 Ga. App. 7 (1908). 121 Water Law WATER RESOURCE PROBLEMS (Georgia) 1. Surf ace Water Withdrawal uses and allocation 3 Instream uses 3 Saline water intrusion Land use relationships s Property damage 4 Ownership of submer~ed lands 4 Conjunctive use surface & ground water 2 Protection ground water recharge areas 3 Emergency use 3 Interbasin transfer 3 Interstate effects 3 2. 3. Diffused Surface Ground Water & Drainage Wa ter 2 -- 5 s 4 4 2 2 1 s 3 3 3 Shoreline protection 4 - - - - i~ Wetland protection 5 2 Public access s --- - -- --Reservation of reservoir sites s --- .__ - - --- -- -·---·- ~-- - - ·-- - 1 Water Administration ----3 ·--t ·- -Allocation standards & criteria s Data bases 5 s --~5~ ·- -- ---.. - --- · -- ----z- -Permit procedures s ·- ,_ __ T _ Regulation & enforcement 1 3 Agency structure & functions 1 1 Please mark as to priority using following code: 5 highest ~ l 1 lowest, but significant Rating of 4 or S indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address the problems. I 122 ALTERNATIVES FOR MANAGING GEORGIA'S WATER RESOURCES Jackie Sellers Associate Director Institute of Natural Resources University of Georgia Athens, Georgia INTRODUCTION Georgia's water resources administration and legal framework is a bit different from the other states represented here. The format for the three papers from the State of Georgia is intended to provide an overall view of the management of Georgia's water resources. The paper by Robert S. Bomarl presents the legal framework, the one by J. Leonard Ledbetter2 deals with the administration and the operation of Georgia's water law, and this paper will attempt to develop some_ alternatives for managing Georgia's water resources. Since this paper was prepared as a ·vehicle for discussing alternatives for man­ aging Georgia's water resources, it will give only brief consideration to the existing legal and administrative framework of the "Georgia process." In or­ der to relate the alternatives to the present situation in Georgia, it is necessary that some general statements be made as to the constraints and requirements of the existing enabling legislation and process. Until 1964, Georgia's water law was based solely upon the riparian doctrine, the system of water law historically recognized in the eastern states. Xhe riparian doctrine protects landowners adjacent to lakes and streams from with­ drawals or uses which unreasonably diminish water quality or quantity. Under the riparian doctrine, individuals have a right to make reasonable use of the stream waters flowing by lands as long as that use does not substantially diminish either the quality or the quantity of the waters passing to landowners downstream. Where diversions or uses have been unreasonable, they either have been enjoined or riparian owners adversely affected have been compensated for interference with their rights.3 According to Kates,4 the Georgia Supreme Court was presented with its first reported case involving water rights in 1848. In Hendrick v. Cook,5 the plain­ tiff sought damages from the defendents for construction of a mill dam which raised the water level 10 or 11 inches on the banks at the site of plaintiff's mill-shoals, thereby allegedly destroying the potential usefulness of the shoals. From this ruling the general framework of Georgia's riparian doctrine was formed. 123 The comparison below (Figure 1), taken directly from Kates, 6 illustrates the similarity between the Georgia Supreme Court ruling in 1848 and the Georgia Code, based on the 1860 codification of riparian law. As seen in section 85- 1302, riparian rights were based upon ownership of the beds over which the water flows. The 1933 code emphasized in section 85-1301 that the riparian had property interest in the flow of water also. Section 105-1407 clarified the relationship between quality and quantity. REASONABLE USE The Hend:Pick case and many others have recognized the riparian right to a "rea­ sonable" use of the stream although no clear definition of what constitutes "reasonable use" was forthcoming. Reasonable use has been determined through the appellate process to depend on equity considerations.7 Some uses are treated more favorably than others. Consumptive uses are usually regarded less favorably than non-consumptive uses. Consumptive uses that have been approved are domestic uses and irrigation of riparian lands. Non-approved consumptive uses are so defined upon transfer of water to non­ riparian uses. The most frequently objectionable consumptive use is that caused by diverting a portion of a stream.8 In the case of diversion on ripar­ ian land, some surface and subterranean drainage can be expected to come about; therefore, the possibility ·of use downstream exists. In the case of transfer to non-riparian uses, there is little chance of return flow, and this non­ riparian use was not a protected right.9 The question arises as to whether municipalities (a major consumer of water for domestic needs) could legally obtain water from land bordering a stream and transmit it to different private riparian land for consumption. According to Kates,10 the "Georgia cases •.. are silen.t as to the municipality's right to use such wat~r where the city itself borders the stream or the point of with­ drawal." With .strict adherence to the protection of individual riparian rights, municipalities would be limited to supplying water for domestic uses for or on property owned by the city. Another unauthorized consumptive use is the wasting of water through misman­ agement that decreases the rights of landowners downstream. Wastage may come about through providing for excessive evaporation or loss of surface water to subterranean drainage and, therefore, decreasing the property rights of other proprietors. The non-consumptive uses of obstruction and detention were protected under the riparian doctrine 'to the extent that the property rights of other riparians were not adversely affected by the quantity or quality changes brought about by the obstructions or detentions. However, common law did protect the landowner from trespass caused by the overflowing of another owner's land by this ob­ struction. In the "natural flow-subject reasonable use" doctrine of Georgia, the major consideration has been water quality, rather than quantity, in determining property rights between individual users of water.I! This doctrine defined the 124 Figu:pe 1 Hendrick v. Cook Each riparian proprietor is entitled to a reasonable use of the water, for domestic, agricultural, and man­ ufacturing purposes; provided ~hat in making such use, he does not work a material injury to the other proprietors.a When there are two opposite ripar­ ian proprietors, each owns that portion of the bed of the river or creek, which is adjoining his land, usque ad filwn aquae, or in other words, to the thread, or central line of the stream; and if hydrau­ lic works be erected on both banks, each is entitled to use an equal share of the water. The water can only be used by each as an entire stream in its natural channel; for, · of the property in the water, there can be no severence.b A riparian proprietor has the right to use the water in the stream, as it was wont to flow.c The proprietor above has no right to divert, or unreasonably to retard this natural flow to the mills. below; and no proprietor below has the right to retard or turn it back upon the mills above, to the prejudice of the rights of the proprietors thereof .d aHendrick v. Cook, Ga. 241, 256 (1848). bid. at 255. Cid. at 257. did. at 258. Georgia Code · (1933) Section 85-1301 Ownership of running water. 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. Section 85-1302 Rights of owners of land adjacent to non-navigable streams. 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 Section 105-1407 Watercourses; diversion, obstruction, or pollution as constituting trespass. The owner of land through which non­ navigable watercourses may flow is en­ titled 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 proprietors; and the diverting of the stream, wholly or in part, from the same, or the obstruct­ ing 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 les­ sen its value to him, shall be a tres­ pass upon his p~operty.e eAll statutes as quoted appear in Georgia Code Ann., tit. 85 (1955 rev.). 125 right of a riparian owner to reasonable pollution of the streams until its adulteration interfered with the next owner's enjoyment of the water. Georgia law provides that the pollution of a stream so as to lessen its value to a downstream owner is a trespass upon that owner's property. 12 However, some pollution of the stream was permitted in order to facilitate full use of the watercourse. The pollution became unlawful only if it interfered with a riparian's use of water or enjoyment of land.13 MANAGEMENT LIMITATIONS IMPOSED BY THE RIPARIAN DOCTRINE As the State of Georgia developed economically and the population composition shifted from one of total agricultural base to mixed agricultural-industrial base, the needs for and uses of water also changed. The riparian doctrine, as interpreted for Georgia, was conservative and considered by some to be out­ moded due to the fact that this doctrine was adopted to protect mill dams and individual domestic uses.14 Current needs are more related to those of munic­ ipalities, industries, and irrigators. The natural flow doctrine, from a total resource management prospective, pre­ cluded (in theory) consumptive use of water for alternative non-riparian uses that may be more beneficial to the people of the state than strict riparian adherence. Reasonable use was not well defined and therefore could be seen as a limiting factor in development of water using industries due to the fact that most developers would see the uncertainty in the determination of what consti ­ tutes reasonable use as a risk factor and therefore shy away from the invest­ ment. Without legal transfer of water to nonriparian uses, some resources of the state would be unemployed or underemployed while other areas would "enjoy" large concen~rations of industry and population. In this case, there may be underutilization of the water resource or on the other hand, due to the concen­ tration of use, overutilization to the extent that the value of the last units of the water used on riparian land is considerably below the value of potential use on nonriparian land. The problem of pollution from the total system point of view is quite diffi ­ cult to address. While the riparian doctrine-reason.able-use laws did provide for action in case of downstream damages that reduce the value of downstream owner's property, no consideration was given for future downstream effects and usages. This limitation, along with the inability to coordinate reasonable use with the hydrological cycle, eliminated long-run consideration of this doctrine in development management plans for the water resource. The riparian doctrine previously in effect in Georgia had serious drawbacks for a state that has shifted from a natural agricultural economy to an urban­ industrial complex economy. There was a definite need to identify and estab­ lish water rights that would effect better utilization of Georgia's water resources. Interested parties needed to know the extent of their rights and under what conditions these rights could be revoked without having to wait on a specific court ruling. 126 There are several alternative water. rights systems in use in the United States that are designed to promote economic development and environmental protection. However, the analysis herein is limited to comparison of the basic appropria­ tion doctrine, the basic riparian doctrine, and a basic permit system. Con­ sideration is given to the manner in which each system would affect specific alternatives and adaptations for managing water resources. THE RIPARIAN, APPROPRIATION, AND PERMIT SYSTEMS Until legislation set up the permit system in Georgia, Georgia water law could best be described as a "natural flow-subject to reasonable use doctrine." In most arid western states, the rules concerning rights to water are granted under the prior appropriations doctrine. Prior appropriation doctrine as defined here is based upon four tenets: 1. That a water right can be acquired only by diverting the water from a watercourse and applying it to a beneficial use; 2. That an earlier acquired water right shall have priority over other later acquired rights; 3. That the right is maintained only by use; and 4. Water in excess of that needed to satisfy existing rights is viewed as unappropriated water, available for appropriation by diversion and application to a beneficial use.15 To appreciate the managerial differences of the two major doctrines, a scheme such as the one suggested by Katesl6 is quite useful. This scheme demonstrates the basis of the right, the extent of the right, and the implied restrictions on water use (Figure 2). The major differences in the basis for water rights, i.e., land ownership in the riparian case, prior use in the appropriation case, the permitted use in the permit system, determine the ability of a state or region to "manage" the resource. Management, as used here, may be defined as the full and complete consideration of all of the factors and impacts related to the control and use of a resource in the present and future to achieve some specified set of goals. The Apparent Defects in the Riparian Doctrine as a Basis for Management The major flaw in the riparian doctrine as seen by state governments in man­ aging water resources is the difficulty of a state or other governing body in regulating quality or quantity when water needs expand into areas different from those which existed when the water was plentiful. It became apparent to the State of Georgia that a process should be developed to eliminate the potential and in some cases the real possibility of waste that seems to be inherent in the riparian system. The vagueness of the "reasonable use" needed 127 Figure 2 Comparison of Riparian Doctrine with the Prior Appropriations Doctrinea Basis of Water Right: Effect of Nonuse: Place of Use: Extent of Use: Riparian Ownership of land adjoining the stream. None. Generally restricted to use on riparian land. No fixed limit­ but cannot use so as to harm the equal rights of other riparian owners to the use of the natural flow. Prior Appropriation The first user of the water right obtains priority­ ownership of ad­ joining land immaterial. May result in forfeiture of the right. No restriction. The appropriator prior in time may use a specific amount of water to injury of others with a lower priority. Permit Systemb State or district permit. Loss of permit. Defined specifi ­ cally in permit. Permitted to "use" specific amount of water sub­ ject to effluent discharge control. asource: Robert C. Kates, Georgia Water Law, Institute of Government, The University of Georgia, Athens, Georgia, 1969. bAdded to original table. to be clarified. There was also said to be a need for reducing the uncertain- · ty of the right to water use and a reduction in the over protection of the riparian right to future use of existing unused water. 11 It has been observed that administration of water rights by courts does not lend itself to the same efficiency in a statewide, comprehensively planned development of water resources as does such administration by an administra­ tive board composed of experts.18 128 This statement and the general belief that some "central" decision committee should be charged with determining the future resource utilization within a state led to many changes in state laws that tended to extract managerial discretion from the individual and place it in the hands of the state govern­ ing body. In the Georgia case, this process involved three legislative ac­ tions: 1. Georgia Water Quality Control Act,19 2. Groundwater Use Act of 1972,20 3. Georgia Water Quality Control Act Amended.21 The Georgia Water Quality Act vested power in the state to regulate the condi­ tion of the water resulting from riparian and nonriparian uses. In time the legislature granted the executive branch of the state additional power to con­ trol uses of water. To handle the problem of administration and management of the water and related land resources, a permit process was approved. This is quite a departure from either the riparian doctrine or prior appropriation (Figure 2). This departure, it was argued, would allow for better management and, therefore, better utilization of the resource for the economic and social goals of the state. Outline of the Laws Establishing the Permitting Process The assumption of property rights by the State of Georgia may be traced direct­ ly to the Georgia Water Quality Control Act of 1957 which was designed to com­ ply with the Federal Water Pollution Control Act Amendment of 1956.22 The federal legislation provided that the state had pri~ary responsibility for pollution control. Under the 1957 Quality Control Act, the right of individ­ ual users to pollute was protected to a certain degree. The 1964 Georgia Water Quality Control Act eliminated some of the provisions of the 1957 Act which allowed riparian owners a vested right to pollute streams.23 Power to administer and enforce the quality control act was then placed in an autonomous agency known as the Water Quality Control Board. Ef­ fectively, the state maintained that there was a public interest in all uses of water and, therefore, the state had the responsibility and authority to regulate the amount and type of discharge allowed in Georgia's waters. Therefore it can be surmized that the riparian doctrine was first altered by attempts of state and federal interests to regulate quality rather than quan­ tity. As noted previously, most eastern states have long been more concerned with the quality of the water resource than with the quantity due to the rela­ tive abundance of water. The Ground-Water Use Act of 1972, as the title implies, was designed to give the state managerial control of Georgia's ground water. The policy declara­ tion of the Act is aimed at "beneficial use-reasonable regulations" which is quite different from the riparian doctrine's "reasonable use." The policy is stated as follows: 129 It is hereby declared that the general welfare and public interest require that the water resources of the State be put to beneficial use to the fullest extent to which they are capable, subject to reasonable regulation in order to conserve these resources and to provide and maintain con­ ditions which are conducive to the development and use of water resources.24 For administrative and enforcement purposes, the implementation process was placed under the Director of the Environmental Protection Division (EPD) of the Department of Natural Resources.25 The Director was charged with develop­ ing regulations for the use of ground waters, to include requiring water users to submit reports not more frequently than every 30 days; regulate timing of withdrawals; protect against saltwater encroachment, protect against pollution of ground water; and to ·regulate well spacing, pumping rates, and well depths. The Act provides that each non-excluded user must obtain a permit from EPD to withdraw, obtain, or utilize ground water in excess of 100,000 gallons per day. The regulations exempted persons utilizing or withdrawing water for agricul­ tural or for poultry processing purposes. Information concerning ground-water use by the exempted users was to be supplied by an estimate made by the county agents in the effected counties. The Georgia Water Quality Control Act was amended in 1977 to require the · establishment of permissible limits of surface water usage; to require permits for withdrawal, diversion, or impoundment of surface waters; and to allow for certain exemptions. These exemptions are as follows: No permit shall be required for the withdrawal or diversion of surf ace waters for farm uses and no permit shall be required for a reduction of flow or surface waters during the period of construction of an impoundment including the initial filling of the impoundment, or for farm ponds of farm impoundments constructed and managed for the sole purpose of fish, wildlife, recreation or other farm uses. 26 Non-exempt uses are permitted for a set period of time with an approved pro­ cedure for re-permitting. The amended act provided for the imposition of restrictions on permits previously issued during emergency periods of water shortage through emergency orders; a procedure for the issuance of emergency orders; and monitoring, recording, and reporting by permittees and certain other persons. The Amendments also provided for a system of transfer of sur­ face waters across natural basins and provided the EPD with power to deal with the United States ·regarding management and allocations of the state's surface water resources. The same Act provided EPD with authority to enter into con­ tracts or compacts on behalf of the state with the federal government, sister states, politica~ subdivisions, and public utilities for purposes of proper management of the state's surface water resources. Legislation contains other explicit statements of the powers and the duties of EPD, but the general areas of influence on surface and ground-water resources can be seen in the three acts mentioned above. With the transfer of managerial 130 control from the individual owners of stream beds and land covering the aqui­ fers, the state assumes the responsibility for providing for present and future uses of water. A basic assumption has been made by the legislature of Georgia that the state can determine better than the individuals of the state how best to use the water resources of the state. The basic managerial tool used by the State of Georgia is the permitting proc­ ess. An individual wishing to withdraw more than 100,000 gallons of water a day from either surface water or ground-water sources, provided the use is not exempt, must obtain a permit from EPD. This permit will state the amount and duration of the withdrawal, and the standards for the discharge once the water is used. The period of the permit is from 10 to 20 years, except in the case where revenue bonds have been sold to pay for facilities. The exact length of time for the permit is determined by the needs of the users and the Director of EPD. In the application process, the merits of the individual applicant's uses are assessed against other possible uses and physical constraints to determine the overall effects of permitting the user. In the case where an individual user may greatly affect the total water supply or quality, the Director of EPD may, upon request of an adversely affected user, determine that a public hearing is necessary to determine overall desirability of a permit. In the case where interbasin transfers are involved, the Director of EPD will notify. the public of the affected areas through the newspaper, and a public hearing may be required due to public interest expressed. The permitting process provides for challenge of the Director's negative decision through a review process and through .court action. There are eight stated ways that an individual user may lose his right to water through revocation or refusal of a permit: 1. Failure to reapply for a permit before the last six months of his current permit; 2. Supplying any false information on records, etc.; 3. Willful violation of the conditions of a previously granted per­ mit; 4. Non-use of a significant portion of the water supply except under an extreme hardship case. 5. Quantity of water permitted is significantly less than quantity needed by the user; 6. Violation of any health or safety regulations; 7. Emerging period of water shortages; 8. Refusal of application for a renewal permit. To sunnnarize, the Director of EPD is charged by the State of Georgia to man­ age Georgia's water resources. The water resources of the state are to be 131 utilized prudently to the maximum benefit of the people in order to restore and maintain a reasonable degree of purity in the waters of the state and an ade­ quate supply of such waters. To achieve this end, the government of the state has assumed responsibilit~ for the quality and quantity of water resources for present and future needs. 7 POSSIBLE PROBLEMS IN THE PERMITTING PROCESS The managerial problems in water resources allocations and maintenance are basically the same as in other resource allocation decisions, except that in the State of Georgia a large portion of the users are not regulated or per­ mitted. The agricultural interests are excluded from the permitting process. In the opinion of this writer, this is due to the inability of the legisla­ ture to pass a law that would regulate the large agricultural population. In all probability the general statute establishing the permitting process would not have become law if it had included agricultural uses, if in fact the agricultural interests had not supported it. Management of any resource without a total system concept is piecemeal at best. To effectively manage water resources of the state, a complete analysis of water availability must be made. According to the information generally available, data concerning the availability of ground water in some areas of Georgia is scarce at best. · This problem is not unique to Georgia. In the past there has been very little need for concern for water quantity investigations of ground water. This past summer the need for this knowledge became apparent when 35 of the southwestern counties in the state experienced an agric~ltural drought and began pumping water at a considerably higher rate than ever before, therefore causing competition for ground water to become apparent when some of the shallow wells began to dry up. These reduced ground-water levels were not totally a function of the low rain­ fall but were brought about in part by the changing conditions of the agri ­ cultural sector. Farming now is so capital intensive that the farmer cannot take an undue risk by relying solely on rain for moisture for his crops. The marginal productivity of water in agriculture has increased as this capital intensity has grown. To this observer there appears to be little coordination of agricultural uses with other permitted uses. Since this sector is excluded from the permitting process, an agrument can be developed for ignoring them in the allocation 'proc­ ess, but this approach appears neither wise nor desirable. If this process of two-group decision making is allowed to continue, it is possible that all usable water could be permitted for non-agricultural users, leaving this large segment without water. This would most probably lead to court action to deter­ mine vested rights, and, therefore, to court decisions instead of management decisions for determining water uses. As the current permitting process is used, there are various reasons why the agricultural interest would want to be excluded. There is no guarantee that present or past uses will be given consideration over new non-agrarian uses. The present holders of riparian rights would not be given the same property 132 rights under the permit system that exist under prior appropriation, i.e., prior users have established water rights for that use. The paper work necessary to administer the permitting process to all large agricultural uses would be expensive and time consuming both to the individ­ ual user and to EPD. In some cases information about needs and availability may not exist. The need for water in agriculture is composed of many related but diverse variables. Size of operation, crops grown, and seasonal weather variations are the major variables. Weather variations, one of the most important, cannot be controlled even by the federal government. Another possible concern of the excluded users is the interbasin transfer con­ siderations allowed by the 1977 Act. To be able to manage effectively the water resource, it may be necessary to transfer water from one basin to another. The present excluded agricultural users (and others) may see this as a threat to transfer water from agricultural uses where the marginal productivity is assumed to be low to urban or industrial areas where existing pricing has indi­ cated that marginal productivity is high. Along with this problem, there is the potential problem of a large metropolitan area such as Atlanta being awarded considerable water rights at or near a major source, therefore limit­ ing the downstream users by transferring the water from one drainage to another. Heretofore, water and other natural resources have limited the physical growth of some urban areas, but with the possibility of authorized interbasin trans­ fers, water can be brought to a designated site (in theory at least) fo-r which the natural flow limitations have been eliminated. This could not only result in an undesirably high concentration of people but could add significantly to the cost of pollution due to the physical capacity of a river basin to "clean" itself, and, therefore, require more and higher cost wastewater treatment. The major management system problems, then, are information needs concerning supply and demand, transfer related allocation problems, and exclusions from the permitting process. Regardless of the intelligence and dedication of the decision makers, it is necessary to have current information and projections, along with reasonable controls, in order for decisions to be made that will allow for the "best" allocation and utilization of Georgia's water resources. The problem of information could be handled with the allocation of more state and local resources to sampling and data collection, particularly with respect to ground water. Transfers require hard evaluations by EPD concerning both long run and short run effects on water quantity and quality. The problem of inclusion of all affected users suggests the need to consider other alterna­ tives for managing and regulating water use. Possible Alternative Management Approaches Rather than critically analyze the existing Georgia permitting process as a managerial tool, viable alternatives for managing Georgia's water resources will be evaluated. It is recognized that in some cases enabling legislation is not available, and if some of the alternatives were to be adopted, new laws would have to be passed. However, certain management alternatives are worthy of consideration regardless of the existence of such implementation problems. 133 Any alternatives that should be considered must meet certain criteria. These include: 1. A systematic evaluation of present and future needs and supplies; 2. Coordination of ground water and surface water; 3. Provisions for wastewater treatment; and 4. Local as well as state level support. The alternatives must include all major users in the decision process and must allow for reasonable decision making at the control level. Since the ground water in southwest Georgia has been one of the two major water problems in the past year, considerable attention has been given to developing viable alternatives ior assessing and managing this area's resource. A second major problem is ground-water use and saltwater intrusion in southeast Georgia. The third major problem is the Atlanta water supply. In this case, the Lake Lanier water supply has transfer possibilities but involves cost allocation and cost sharing problems. Two of the problem areas can be used as a reference point in evaluating and developing alternative management strategies. In the case of excluded and · included regulated uses, an attempt must be made at coordinating all uses. The "ultimate" alternative would be one that would work to the "good" of most interests and to the "bad" of as few as possible. The alternative must provide for economic efficiency as well as legal equity, i.e., in the case of surrendered rights, those losing the rights are paid according to the extent of the loss. In hypothetical terms, let it be assumed that certain parts of any doctrine can be retained while all others are ignored. Legal rights are created by laws, and laws can be amended or new ones passed. This statement emphasizes a pre­ ference for a group effort by all involved parties and the highest possible extent of local control to evolve a workable management process. Consideration will first be given to the general attributes of the Florida per­ mitting process applicable to all inland water resources. The permit process was offered as a solution for eastern states in A Model Water Code, with Com­ mentary. 28 This was seen by many in the East as the proper solution for water resources management. This model code emphasized the desirability of allowing for state control of water resources. The administration of that permitting process was to be coordinated through a state level agency, but the actual per­ mitting was to be done at district levels by a governing board composed of nine members appointed by the governor and approved by the state senate. For hydro­ logical and administrative purposes, five major water management districts were formed from existing and new management districts. Florida has had some regu­ lation of water use by management districts since 1949. There is some similarity between the existing Georgia permit system and that of the State of Florida since a great deal of input into these systems came from "The Model Code." The major characteristic of the Florida system that has 134 major appeal is the district concept. The districts are, in effect, the regu­ lator of surface water uses within the districts, although the state maintains the authority to override district decisions. What makes the district concept more appealing than the central state agency concept is the local input to the decision process. The members appointed to the governing board are from the districts and should understand the problems and concerns of the regulated as well as those of the regulators. The district concept has even more appeal when thought is given to integrating all the users of Georgia water resources. The potential conflict that exists in southwest Georgia between the excluded riparian agricultural interests and the regulated urban-industrial users would provide a good background for inves­ tigation of the viability of this alternative. Ground water in Georgia has never been considered riparian and, therefore, prop­ erty rights have never been considered when dealing with it. During the last crop season, there was 'evidence of water depletion at various levels of the aquifer, and by being excluded from the permitting process, the agriculture interests stood to be left with a dry hole if all the available water were to be assigned to permitted users. The problem might not be that simple--it would probably take several long and bitter court cases to determine who had priority in this case. But if it is assumed that the courts would uphold the permit system, the agricultural interests would have been considered as "junior appro­ priators." The net effect of such action would be one of "rape at the cross roads" for the non-regulated. As a possible "trade-off" of existing water rights, the agricultural interests could be offered representation on the controlling board of a management dis­ trict. The management districts could logically be developed around existing river basin or soil conservation districts. The choice of the writer would be water management districts formed by the same boundaries as the soil conserva­ tion districts because of the coordination necessary for pollution control, including both point and non-point sources. The actions_ of the governing board should be directed toward providing this integrated effort. There can .be no doubt that a reasonable individual would want some pay-off for surrendering his valuable water rights and allowing them to be assumed through the police power of the state. If the 1977 amendments are to be applied evenhandedly and still be politically feasible, some consideration must be given to spreading the decision making power around to the affected individuals. In the case of those individuals currently regulated in Georgia, it appears that very few had water rights to surrender under the riparian doctrine. Without direct local input, there will always be resistence to regulation. So one viable alternative to the current permit process of Georgia would be to form representative water managment dis­ trict boards appointed by the Governor, approved by the State Senate, and responsible both to the state and to the local users. The concept of district water management is not confined to the eastern states. The people of the high plains of Texas formed the High Plains Underground Water Conservation District #1 in 1951. Presently the District consists of all or parts of 15 counties and includes 5.3 million acres of land. Although it may 135 be argued that the Texas water problem is different from the water problems in Georgia, Georgia could learn from the data collection procedures and concept formulation. The Texas water district administrators were able to demonstrate that the underground water source was unchangeable and, therefore, that the owners of the land were entitled to water depletion allowances similar to those enjoyed by oil drilling companies. The District has the authority to regulate the spacing of wells and pumping, however, it has generally executed its regu­ latory authority only in the spacing of wells. As the Texas case illustrates the close relationship between water rights and the value of land, an Idaho statute29 deals with the adjudication of water rights. Idaho has enacted legislation providing that district courts, in adjudicating water rights, shall allot the waters of any stream according to the rights and priorities of those currently using the water. Such allotments shall be made to the beneficial use to which the water is applied. Water rights which are applied to irrigation uses are appurtenant to the land irri ­ gated and pass with the conveyance of the attached lands. (This provision would be an improvement in the permitting process. Some consideration must be given to transferring permits.) The Idaho case, as with the Texas case, emphasizes the importance of the rights to water to the value of land and the need for longrun water rights in order to establish property values. One of the arguments for moving from the ripar­ ian water doctrine to the permit process as described by Maloney30 was that the risk of court action was so high under the riparian situation that potential developers could be discouraged. The case of the 20-year permit, in the opin­ ion of some,31 would introduce even more uncertainty into the decision process for investors becaus~ the 20-year limit would not allow for complete capital recovery or be long enough to match the economic life of most industrial plants. If a longrun water management plan is to be developed in Georgia that would include all users (current riparian and nonriparian), consideration must be given to insuring property rights to those users. If this cannot be done, some method of compensation must be developed that would pay the "losers" to release these property rights because it is logical to expect the shortrun and longrun values of the land and related resources to decrease. Alternatives have to be developed that will allow for different preferences among the permitted users in case of drawdown below or near minimum levels. Under the prior appropriations doctrine, it is possible that all water could be used by one large upstream user, with none left for those downstream. In most cases, the amount of water taken is related to the available supply in a percentage system. Be that as it may, when a junior appropriator is given water rights, he is advised as to the condition under which he may or may not withdraw water. He is able to assess his risk and make a decision whether or not to make the investment. Under the permit process the administrator has the authority to limit the amount of water withdrawal by various permitted indi­ viduals. The amount of water allowed would then be a function of the perceived need of the users and the desires of the administrator. In other words, there seems to be no clear-cut process for an investor to assess the risk involved in a shortrun emergency situation. 136 Regardless of the alternative selected for managing water resources, careful and thorough attention must be given to consideration of long term water rights and their transfer. If a property owner cannot transfer his vested property rights, the economic as well as sociological consequences could be completely unpredictable. STATE VS. STATE AND STATE-FEDERAL INTERRELATIONSHIPS The federal interests have acquired property rights to "state" water through navigation, flood control, and other water resources investment. Once a dam is constructed with federal funds, the state loses a major portion of its control as to the future use of the water both within the impoundment and downstream. In order to coordinate effectively state-federal or state-state management of water resources, it is important that pre-investment pacts be formed such as the California-Nevada Interstate Compact.32 Although this compact, as with Colorado River Advisory Commission,33 deals mainly with state-state relation­ ships, there are federal and federally assisted projects present. The major purposes of the California-Nevada Compact are promotion of equitable apportionment of water, governmental cooperation, and the future development, use, and conservation of water within Lake Tahoe, Truckee River, Carson River, and Walker River Basins. This compact states the extent of use of the river waters by each state. Ground water, as long as it does not affect river flow, is excluded from the compact. Nevada has created the Colorado River Advisory Commission to advise the admin­ istrator of the Division of Colorado River Resources on negotiation and execu­ tion of contracts for power and reclamation prpjects. The administrator also cooperates and negotiates with industry, other states, and th~ federal govern­ ment to obtain for the state maximum benefit from the Colorado River. In both of these cases, careful consideration is given to the interrelation­ ships of state and federal interests. The amount of state interest in feder­ ally assisted projects most probably depends upon the amount of state monies invested in the project. Whatever the case, these commissions and compacts are an effective method for coordinating the various interests that are not individual in nature. THE SYSTEMS APPROACH TO WATER QUALITY AND QUANTITY MANAGEMENT Any alternative must attempt to integrate ground-water and surface water allo­ cation and supply. It must integrate water quality and quantity and must pro­ vide incentives and disincentives for making the alternative work. The alternative of water management districts, under the Department of Natural Resources control, could be a most effective technique for management if con­ sideration were given to off setting losses of water rights by some form of pay­ off. This district concept should enable the State of Georgia to cooperate 137 better with her sister states in determining present and future needs and to be more effective in conservation and preservation of the state's water resources. The alternatives for management of Georgia's water resources then can be broken down into four major management areas as follows: 1. Organization and institutional structure (who manages the re­ source?). Options: a. Market (selling of water rights to highest bidder), b. Individual property rights, c. Local district control, and d. State control; 2. Legal and economic mechanisms (how is it managed?); 3. Consequences (who is affected and how?); and 4. Priorities (where and how much use is allowed?). With proper consideration of the four major areas of resource allocation deci­ sions, the district (with central coordination) seems to incorporate many of the desirable characteristics. Realizing that there is public interest. in the management of the water resource, the district concept includes public as well as private input. Economic considerations at the local level should improve economic efficiency as well as legal equity. Consideration should also be given to priorities of water uses under various economic and environ­ mental conditions. These priorities would be basically a group effort and, therefore, could lead to a higher probability of acceptance by the regulated users. The options for permit transfers could be worked out at the district level to insure some stability of economic values associated with water rights . One can develop many combinations of legal and economic arrangements for managing water resources that deal with the four man~gement areas above. The most effective will depend upon the perceived need for managerial control and the physical and political conditions of the state at a particular point in time. 138 · FOOTNOTES 1. Robert S. Bomar, "Water Law in Georgia." i 2. J. Leonard Ledbetter, "Management of Georgia's Waters." 3. National Water Conunission, Water Policies for the Future, 1973. 4. Robert C. Kates, Georgia Water Law, Institute of Government, The sity of Georgia, Athens, Ga., 1961. 5. Hendrick v. Cook, 4 Ga. 241 (1848). 6. Kates, supra, note 4. 7. Kates, supra, note 4, p. 33. 8. Kates, supra, note 4, p. 36. 9. Kates, supra, note 4, p. 37. 10. Kates, supra, note 4, p. 38. 11. Kates, supra, note 4, p. 90. 12. Ga. Code Ann. sec. 105-1407 (1956 rev.). 13. Kates, supra, note 4, p. 91. 14. Kates, supra, note 4, p. 65. Univer- 15. National Water Conunission, Water Policies for the Future, 1973, p. xxiii. 16. Kates, supra, note 4, p. 10. 17. Kates, supra, note 4, p. 66. 18. Id. 19. Georgia Water Quality Control Act, Ga. Laws 1964, p. 416. 20. Groundwater Use Act of 1972, Ga. Acts 1972, pp. 976-1283. 21. Georgia Water Quality Control Act Amended, Ga. Laws 1977, General Acts and Resolutions, Vol. I, pp. 368-380. 22. Kates, supra, note 4, p. 107. 23. Kates, supra, note 4, p. 109. 24. Ga. Acts 1972, p. 976. 139 25. Executive Reorganization Act of 1972 and sec. 3A-120 of the Administrative Procedure Act. 26. General Acts and Resolution, Vol. 1, p. 371. 27. Georgia Water Quality Control Act ' as amended 1977, General Acts and Reso­ lutions, Vol. 1, p. 369. 28. Frank E. Maloney, A Model Water Code, with Commentary, 1972. 29. Idaho Code Ann., secs. 42-1401 to 42-1413 (1948) as amended (Supp. 1976)., 30. Maloney, supra, note 28. 31. Frank J. Trelease, "The Model Water Code, the Wise Administrator and the Goddam Bureaucrat," Natural Resources Journal, Vol. 14, 1974, pp. 207-229. 32. Nev. Rev. Stat., sec. 538.600 (1975). .. 33. Nev. Rev. Stat., secs. 538.041 to 538.251 (1975). 140 Water Law WATER RESOURCE PROBLEMS (Georgia) 1. Surf ace Water Withdrawal uses and allocation 1 2. Diffused Surface Water & Drainage ·- 3~, . I Ground I Water 1 i--~~~~~~~~~~~~~~~~~~~~--~~~~~--~~~~~~~~~~--~~--- Ins t ream uses 5 Saline water intrusion Land use relationships Property damage Ownership of submerged lands Conjunctive use surface & ground water Protection ground water recharge areas 4 Emergency use 3 Interbasin transfer 2 Interstate effects Shoreline protection Wetland protection 4 Public access Reservation of reservoir sites Water Administration Allocation standards & criteria 2 3 Data bases 1 i- Permit procedures · ·- Regulation & enforcement 2 --- Agency structure & functions 3 Please mark as to priority using following code: 5 highest ~ 1 1 lowest, but significant Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less seve re or that existing laws address the problems. 141 MANAGEMENT OF GEORGIA'S WATERS J. Leonard Ledbetter Director Environmental Protection Division Georgia Department of Natural Resources Atlanta, Georgia INTRODUCTION As an introduction to this topic, it is appropriate to summarize the overall philosophy which guides Georgia's approach to water resources management. This philosophy can be summed up in the following statement of Governor Busbee that introduced his 1978 executive policies regarding natural resources management. A balance must exist between the needs for economic and community development and the absolute necessity of pro­ tecting Georgia's environment. There is little doubt that the continued economic, social, and environmental well-being of the entire state is directly dependent upon the wisdom with which Georgians manage their natural resources. The Governor has strongly supported this philosophy throughout his administra­ tion and sponsored much of the strong water management legal tools that have been enacted by the Georgia General Assembly in recent years. In overview, it will be helpful to outline several basic physiographic char­ acteristics of Georgia. One of this country's major drainage divides extends through the state, running generally from northeast to southwest. Atlanta, the major city, is located directly on the divide. West of the divide, water flows to the Gulf of Mexico and east of the divide, the water runs into the Atlantic Ocean. The Blue Ridge Physiographic Province covers the extreme northern por­ tion of the state; the Piedmont Province extends southerly from the Blue Ridge to midway of the state; and the Coastal Plain covers the southern one-half of Georgia. These physiographic characteristics are important factors which must be kept in perspective in discussing the management or allocation of the state's water resources and programs for the collection of water resources data. STATE ORGANIZATION STRUCTURE FOR WATER RESOURCES MANAGEMENT The 1972 Georgia Executive Reorganization Act, 1 which restructured most of the executive branch of state government and streamlined and consolidated the 142 management of natural resources in Georgia. With the exception of forestry, most natural-resources-related activities were assigned to the Department of Natural Resources (DNR). Virtually all statutory authorities existing in 1972 pertaining to water resources management were assigned to the Environmental Protection Division (EPD) of DNR, which was established as an autonomous division~ Additional management and regulatory functions have been assigned to EPD in the years following reorganization. Whereas at first the EPD was oriented more toward pollution control and regulation, in recent years the legislature has enacted laws assigning strong management roles to the Division pertaining to surface and ground-water resources. In addition, Governor Busbee has designated the Division as the state agency responsible for the development of Georgia's water quality management program as required by section 208 of the Federal Water Pollution Control Act Amendments of 1972.2 The trend continues to be strongly toward the development of a comprehensive environmental pro- gram with an extensive array of legal tools to balance the needs with develop­ ment demands. AGENCY STRUCTURE AND FUNCTIONS The Georgia EPD has been assigned the responsibility for carrying out a coor­ dinated, statewide environmental resources management program which includes air, water, and certain land-related functions. Specific legislative authori­ ties have established programs which address air quality~ water quality, sur­ face water allocation, ground-water use, safe drinking water, soil erosion and sedimentation, environmental radiation control, solid waste management, sur­ face mining and land reclamation, and safe dams, In Georgia, the Director of. the EPp is appointed by the Board of Natural Resources with the approval of the? Governor. All of the environmental and resource management legislation assigned to the Division authorize the Direc­ tor to employ the technical staff; develop rules and regulations; conduct hearings, issue permits and orders, initiate enforcement actions, and provide for management and administration of the programs. The 15-member Board of Natural Resources provides broad, general policy and guidance to the Director, and has final review and approval authority for rules developed by the EPD. One of the most important functions of the Board is to conduct adminis.trative hearings whenever a person claims tht an action of the Director has adversely affected them. In those cases, a hearing officer appointed by the Board con­ ducts an administrative hearing, develops the official record for the case, reviews the matter and issues a decision. Rulings of the hearing officer may be appealed to a five-member panel of the Board. If the aggrieved person desires to do so, the ruling of the panel may be appealed further to the courts. Since the Board serves in an overview capacity and its hearing officer and review panel conduct hearings on actions taken by the Director, the Board does not become involved with the daily functions and management of the Division, but gives the Director the full administrative responsibility and authority. This approach has worked exceptionally well in Georgia. 143 The EPD provides the general public, local officials, and industrial repre­ sentatives the opportunity of working with a single agency concerning most environmental matters. Various functions under the Federal Water Pollution Control Act Amendments, the Safe Drinking Water Act, 3 and the Clean Air Act4 have been delegated to the Georgia EPD. Direct involvement with the United States Environmental Protection Agency (EPA) need only be by the state EPD, which enables a person to make "one-stop" application with the Division for environmental decisions related to activities in Georgia. This arrangement was made possible through reorganization of state government, consolidation of environmental protection programs, and the enactment of legislation con­ sistent with and at least as strong as the federal laws. The single-agency environmental management concept, with appropriate appeals procedures, has been well received in Georgia. Conservation and environmental groups, local officials, and industrial representatives have all publicly sup­ ported a continuation of this approach. In addition, during both the 1977 and 1978 sessions of the Georgia General Assembly, the Legislature strongly sup­ ported the single-agency, comprehensive management concept and enacted several strong additions to the state's environmental laws. REGULATION AND ENFORCEMENT Regulation and enforcement of water resource programs have become highly com­ plex--both legally and technically. Issues concerning quality must be con­ sidered in perspective with requirements established by the Congress or authorized to be established by EPA. Maximum concentrations allowable for certain substance·s in drinking water, wastewater discharges, and in the sur­ face waters have been established at the federal level. The state's regula­ tions and enforcement programs in those areas must be consistent with the federal regulations. A continuing problem has been the failure of EPA to establish certain requirements as mandated by the Congress. In other cases, EPA or the courts have changed previously established requirements, adding to the difficulties of conducting a coordinated state program. In Georgia, considerable progress has been made in enforcing quality require­ ments pertaining to industry. However, enforcement has been less effective with local governments. Part-time officials, understaffed local governmental operations, inadequately trained personnel, and severe financial problems have contributed to the regulation and enforcement difficulties. These same factors have contributed to some of the water quality problems in the state. Examples of such cases include inter-basin transfer, disregard of downstream users, and over design of water facilities compared to the potential yield under drought conditions. Legislation enacted in the 1970's enables the state to minimize these prac­ tices; however, serious problems remain where the situation had developed prior to the legislation. Action to correct excessive inter-basin transfer or high pumpage of ground water could result in closing large industries and essen­ tially turning off the water to thousands of residents. Such problems, which developed under the riparian doctrine without challenge, resulted in stronger water management laws. 144 As growth continues and the demand for water increases, the existing enforce­ ment powers of the state will assure wiser use of the water resources with less exploitation. A recent experience is an excellent example of the significance of the EPD . regulatory role. Two large communities in the state sought to attract a · large water user (6.0 million gallons per day) into their area. Neither community was willing to accept the fact that under drought conditions the new plant would cause serious water shortages for the entire area, includ­ ing the new plant. In both cases, considerable costs would have been required to increase wastewater treatment for the entire community to assure compliance with water quality standards downstream. Management, both of the industry and the local governments, was willing to proceed with these risks. Regulation and enforcement powers of the state were used to require the new plant to locate elsewhere in Georgia where the water resources can support it. Interstate rivers and aquifers will present difficult and challenging manage­ ment problems pertaining to enforcement and regulatory functions. In cases where the adjoining state has no regulatory program, the problem will be much more difficult from the quantity standpoint. Allocation of water from an inter­ state stream or aquifer, especially to large users, will become even more of a concern as the Southeast continues to grow and develop economically. Regula­ tory programs must be coordinated between the states to establish equitable and acceptable procedures and allocations. PERMIT PROCEDURES Permits ar~ used as the primary management tool for all water . resource uses in Georgia. The EPD Director must issue a permit for water systems serving the public with drinking water; to wastewater dischargers; and for users withdraw­ ing in excess of 100,000 gallons per day from surface streams or ground water, unless it is for agricultural use. Conditions are set . forth in the permits which must be complied with by the operators of the water systems and facili ­ ties. Any adversely affected person may appeal the permit within 30 days after issuance. All EPD files are public information and available for inspection by any per­ son. The person is simply requested to give his name and reason for reviewing the file. A public notice is issued 30 days prior to proposed issuance of all wastewater discharge permits. A press release is sent out at least seven days before issuance of permits for surface water allocation where inter-basin trans­ fers are involved. Typical procedures for obtaining a permit consist of the applicant filing an application with supporting documents. The rules establish minimum informa­ tion that must be provided to support the application. For water withdrawals. the applicant must provide specific information regarding the location, the quantity, the proposed use, and other pertinent information. The EPD appli ­ cation form for a wastewater discharge is the same as for the national pollut­ ant discharge elimination system (NPDES) permit under federal law. Information required consists of point of proposed discharge, quantity, and detailed facts on constituents of wastewater following treatment. 145 Prior to issuing a water quality permit, a technical evaluation is made to ascertain that water quality standards will be met, If a water use allocation is from the ground or surface waters, an evaluation is also made of the impact on the receiving stream that will receive the wastewater. To illustrate the procedure, the Atlanta area will be used as an example. Extensive studies by the EPD determined that following installation of modern technology for treat­ ing wastewater, there would still be residual pollutants requiring a minimum flow past Atlanta of 750 cubic feet per second (cfs) to assimilate the pollu­ tional load from the area. Therefore, all applications for withdrawal of water upstream of Atlanta are evaluated with the condition that no less than 750 cf s remain in the river at all times to assimilate treated wastewaters to meet downstream water quality standards and protect downstream users. The review procedure for ground-water use applications involves calculations to predict the drawdown curve for the proposed withdrawal. This evaluation is interfaced with the impact of existing uses to determine if the permit can be granted. In some cases the requested amount is limited, either to quantity or to specific aquifers. The development of a well field is often required for a large user before the permit can be granted, DATA BASES Probably the greatest problem in water resource allocation and management in Georgia relates to incomplete or non-existent data bases. At the present, the lack of adequate data seriously hampers management decisions. Most water used i~ the southern half of the state (Coastal Plain) is ground water. Very limited information is available on the aquifer rechaTge areas, the rates of recharge, and the impact of large withdrawals over a sustained period, Data are essentially non-existent on the potential impact on existing large water users along the coast as more large users locate between the re­ charge areas and the coast. A major data problem relates to the intermittent but large withdrawals for agricultural irrigation, Essentially no information exists on the impact on the aquifers of Georgia or adjacent states by such operations. During the 1978 session of the Georgia Legislature, Governor Busbee proposed and the Legislature initiated a five-year study by the Department of Natural Resources to compile and evaluate data on the state's ground water, This study's results will be of great assistance in the future, Surface water data are not as great a problem in Georgia. The state, in cooperation with the U.S. Geological Survey, has compiled data on surface streams for over 75 years. However, the installation and operation of large reservoirs by private utilities and the U.S. Army Corps of Engineers have altered many rivers and changed the flow regime. Complete data bases are not available on the impact of these projects, The flexibility afforded the oper­ ators of those reservoirs of ten create problems for other downstream water users. Future efforts in data collection should give priority to this issue, Data are lacking in relation to the impact of the ever-changing land uses 146 within a watershed. As an area becomes more urbanized or agriculturally oriented, the changes impact the water resources. Specific information is needed in this topic area to allow d~cision-makers to factor in current data. Most southeastern states have coastal waters. Data base problems still exist for estuarine zo~es. _ Management and allocation decisions, especially related to water quality. could be made on a sounder basis if details on mixing, reaeration, tidal influences, assimilative capacity, and other factors were available. High temperatures, salt content, and significant concentrations of naturally-produced organic material make it difficult to evaluate impacts of proposed additional water uses and wastewater discharges in these areas. ALLOCATION STANDARDS AND CRITERIA When the Georgia laws were enacted to regulate withdrawal of ground water and surface water, two distinct concepts were incorporated in the legislation. For water uses in place at the time of enactment, the burden was placed on the EPD · Director to show cause as to why that use should not continue and be permitted. New uses proposed following the enactment must be justified by the applicant. Consequently, the legislation establishe~ an initial standard for allocations-­ protect the present user and give them priority in most cases. The legislation in Georgia spells out some additional standards and criteria related to allocation. These factors are to be considered when applications are being evaluated: The number of persons using the particular water source and the object, extent and necessity of their respective with­ drawals, diversions or impoundments; The nature and size of the water source or the aquifer; The physical and chemical nature of any impairment of the water source, adversely affecting its availability or fitness for other water uses; The probable severity and duration of such impairment under foreseeable conditions; The injury to public health, safety or welfare which would result if such impairment were not prevented or abated; The kinds of businesses or activities to which the various uses are related and the economic consequences~ The importance and necessity of the uses claimed by permit applicants and the extent of any injury or detriment caused or expected to be caused to other water uses; Diversion from or reduction of flows in other water courses or aquifers; 147 r Any other relevant factors. Problems associated with allocation criteria and priorities have primarily related to the necessity of maintaining a flexible system so that all permit applications can be considered in an equitable manner. Therefore, in the case of competing applications, the criteria are limited in number, but broad in coverage, to allow ranking of priorities to assure that all applications are considered. Greater problems would result if very detailed criteria were established and applications for uses not listed were filed. COMMENTS ON GEORGIA WATER LAW PAPER A thorough and excellent treatise on the subject of existing water laws in Georgia is provided in a previous paper by Robert S, Bomar. Additional dis­ cussion on the subject will emphasize water quality issues, As previously stated, the management of the state's water resources requires significant consideration of the impact on quality when considering quantity allocation permits. In Bomar's discussion on instream use, he emphasized construction of dams for generation of power. Violations of the state's water quality standards fre­ quently occur in the summer and fall months for several miles downstream of these dams. The criteria for dissolved oxygen establish minimum levels at 4.0 milligrams per liter, but during several months of the year these criteria are not met, This problem continues today in many states, and the existing laws are not specific for these cases. However, it is the position of the EPD that the large utilities and the Corps of Engineers must meet the standards just as a wastewater discharger. Further discussion of instream uses must consider the most frequent instream use in Georgia--the assimilation of discharged treated wastewater from cities and industries. This use has the potential for encroaching on the riparian rights of others and interfering with other stream uses such as for fish and wildlife habitat and public recreation. Bomar's discussion on land use relationships could probably be expanded to include the 1978 amendment to the Georgia Water Quality Control Act.5 That amendment incorporates the authority contained in the 1977 Federal Water Pol­ lution Control Act Amendments6 pertaining to sections 208 and 404. The state can now proceed to seek the delegation of the section 404 permit program cur­ rently administered by the Corps of Engineers. Language not frequently dis­ cussed in the federal amendments authorizes a state conducting the 404 pro­ gram to use the authority under section 208 to develop best management prac-· tices (bmp) for specific operations. The utilization of these bmp's could eliminate the requirement for 404 permits and greatly reduce the time and paperwork presently required to obtain approval. In his discussion on protection of ground-water recharge areas, Bomar empha­ sized protection from the quantity aspect, It should be emphasized that the Division uses other management tools in addition to the Groundwater Use Act7 to accomplish this objec~ive. For example, the Surface Mining Acts requires 148 a land reclamation program for all strip mining. Kaolin mining is a large industry across much of the recharge area for the principal artesian aquifer, Reforestation, lakes, and ground cover of various types are required for all mined areas. Consequently, this protects and improves the recharge potential of thousands of acres in middle Georgia, The Solid Waste Management Act9 and the Environmental Radiation Act10 provide additional tools to the EPD for protecting recharge areas. Permits are required for the burial, storage, or disposal of radioactive materials or any hazardous or toxic wastes. One proposal for the burial of chemical and radio­ active wastes in the recharge area of the state has already been rejected, In addition, the section 208 program presently underway in Georgia will pro­ vide a useful management tool for protecting recharge areas. Various best management practices will be established which will improve protective efforts from both a quantity and quality standpoint. Bomar's paper discussed the Coastal Marshlands Protection Act 11 as a manage­ ment tool to protect wetlands. While this has been an effective program on the coast, the state has not conducted such B.' program for freshwater wetlands. As previously mentioned, an amendment to the Georgia Water Quality Act in 1978 authorizes the state EPD to obtain delegation of the 404 permit program, For the first time, a water law in Georgia incorporates the term "wetlands" and authorizes the state to conduct a program to protect freshwater wetlands con­ sistent with the federal program. In the discussion on public access, Bomar presented an excellent description related to . the public's right of access to the beaches and ocean. He also states that the courts have held that the public has acquired, through custom and usage, a right of passage on a non-navigable stream. Public access to trout streams in north Georgia and to various reservoirs continues to be a major issue. Claims of trespassing continue to be made concerning such mat­ ters. Public funds are used to stock streams with fish, but the public has limited access. Likewise, large sums of the taxpayer's money goes into Corps of Engineers' reservoirs, and the public has limited access in some areas, Other situations involve streams such as the popular Chattooga River in north­ east Georgia and the Chattahoochee River near Atlanta. The public continues to trespass on private property or use unauthorized access on government-owned property. Again, it should be stated that Bomar's paper on water law is thorough and provides an excellent overview of the Georgia program. It should also be noted that he has personally drafted or assisted in the preparation of all the legislation involving the water resources of Georgia during the 1970's. The state is indeed fortunate to have an experienced professional with Mr, Bomar's capabilities and dedication available to provide a continuing role in the development of the legislation needed to manage our water resources, COMMENTS REGARDING PAPER ON ALTERNATIVES FOR MANAGING GEORGIA'S WATER RESOURCES. In the paper on alternatives for managing water resources, Sellers presents an 149 interesting and informatiye comparison on riparian, appropriation, and permit systems for management and allocation of water. The basic elements of each system are highlighted with advantages and disadvantages briefly outlined. Sellers states: A basic assumption has been made by the legislature of Georgia that the state can determine better than the individuals of the state how best to use the water resources of the state. This observation should be placed in perspective with the conditions which prompted the Georgia Legislature to enact laws regulating ground water and sur­ face water. For example, saltwater intrusion into the aquifer, the potential for additional intrusion, and significant lowering of the water table as a result of numerous large users near the Georgia coast created a level of con­ cern that generated legislation. This was a situation where numerous existing users were interfering with each other as well as precluding future uses. In some instances, large wells were affecting the water table 10 to 15 miles away. An individual or group of individuals would have found it very diffi ­ cult to finance sufficient studies and retained legal assistance to implement any effective management scheme. In Georgia the primary aquifer recharge area is over 100 miles inland from the coast where much of the ·ground water is used, Individuals on the coast and between the coast and the recharge area would find it difficult to prevent harm­ ful activities occurring in the recharge area, whereas the state has .the author­ ity to regulate statewide and can prevent or reduce adverse impacts .on the aquifer. Similarly, the Legislature found that numerous water users in a heavily popu­ lated area, such as metropolitan Atlanta, severely impacted downstream water users. These activities, from both a quantity and quality viewpoint, are so numerous that an individual downstream of Atlanta would find it extremely time-consuming and expensive to attempt to change or improve the situation, Much of the exploitation of the water resources, including inter-basin trans­ fers, has gradually occurred over a period of years. Many significant, non­ riparian uses have been in existence for 100 years and longer in the state, Again the Legislature decided that state-level authority was needed to estab­ lish comprehensive management and control of the state's water resouces to protect the interests of all citizens. The observation could be extracted that the Legislature found that individuals are unwilling or financially inca­ pable of properly managing the water resources of the state; therefore, a sys­ tem was established -to allow state government to manage the water for all citizens with a specific appeal process available for the individual. In his discussion on "possible problems in the permitting process," Sellers emphasizes the impact on ground water in southwest Georgia by agricultural users. The discussion following that emphasis shifts to riparian rights and surface waters. A relationship of riparian rights to ground-water use is implied in the discussion, however, it is not explored in detail, 150 In Georgia, most large agricultural activities are located on the Coastal Plain. Since much of this area is not near a stream, ground water is the only readily available source of water for irrigation. Irrigation does not result in significant return flows. Agricultural experts estimate that 90 percent of the applied water is lost to evapotranspiration and does not return to the aquifers. Consequently, the riparian doctrine would be violated by a farmer diverting stream flow for irrigation. Riparian rights, as typically app·lied to streams, would afford little assistance to the farmer. With the few and small streams located in the prime agricultural section of the state, the use of .streams for sources of irrigation water will continue to be minimal. Major management problems are summarized by Sellers as lack of information on water supply and demand, inter-basin transfers, and the agricultural exemption from regulatory laws. These are indeed appropriately identified problem areas, however, these situations also existed prior to the time that legislative authority to regulate was granted to the EPD, With the present permit systems, the management efforts will allow for improvements in most of these areas and reduce the potential for increased problems. While he states that ground water has never been considered riparian in Georgia, Sellers discusses the "excluded" riparian agricultural interests in southwest Georgia where ground water is used for irrigation. The area of the state where excessive pumpage for irrigation occurred, approximately five counties, does not have other significant users. The "unregulated" agricultural interests encroach on each other. In excess of 1.4 .billion gallons per day can be pumped in a 24-hour period by the existing wells and irrigation systems in the five counties. · some farmers are now requesting members of the Legislature to in~lude them in the regulatory process, recognizing that "regulation" and "protection" can be synonymous terms. Following Sellers' presentation of a water management districts concept, he stresses the agricultural interests. Annual use data show that most water use in Georgia is non-agricultural. Additional attention sho~ld be directed to the two major water systems--surface water in the northern portion of the state and ground water in the southern portion. Local management districts of ten become strongly oriented to special interests and do not have the broader perspective and data bases to incorporate all uses. An agricultural district with district board members who primarily were farmers would give priority to agriculture. Yet, the majority of the population of the area might be better served by loca­ tion of a large water-using industry which would provide job opportunities. Sellers further states that the district concept should ~nable the state to better cooperate with neighboring states, While it is essential that better coordination and cooperation must develop between states, the resolution of major interstate programs will be difficult if not impossible to achieve by a committee. The single-agency concept provides for the communications and con­ tractual arrangements potential much more so than would district boards, With the present appeals process for remedying adverse actions by the EPD Director, it appears this process is more cost-efficient and effective. Industry, in particular, must have prompt decisions when considering locating a new facility in an area. District boards would greatly hamper timely decisions related to propo.sed uses. 151 Mr. Sellers has presented a detailed and interesting discussion of existing water management in Georgia and a recommended alternative, His observations will be helpful to the EPD in future management decisions. The physical and political conditions of the state during any particular era will to a great extent determine the direction of the management strategies and programs needed. The University System of Georgia cont~nues to provide data and conduet an essential role in the state's water programs, especially related to research needs. CONCLUSIONS Experience has demonstrated that water resources management must involve better coordination of both quality and quantity factors. Adjoining states must recogn~ze the impacts of excessive uses in their respective states and manage the water resources to protect interests of parties in each state. One of the greater needs in Georgia pertaining to water resources management at the present time relates to an improved data base. This needed information per­ tains specifically to the aquifers in the southern half of the state, to the reservoirs which are primarily in the northern part, and to the estuarine zones along the coast. Information needs relate to factors such as recharge rates, the availability of water from different aquifers, and long-range prediction .capability as . to the impact of large withdrawals, Information needs related to reservoirs are primarily in the areas of the quantity and nature of dissolved organics and other materials being discharged, the extent of downstream impact of fluctuating discharges, and the detailed evaluation of better management schemes which will result in greater releases under low flow conditions. In the estuarine zone, additional information is needed as to the ability of the estuaries to assimilate manmade wasteloads such as organics, salt, and thermal discharges. Inter-basin transfer between major basins as well as between smaller water­ sheds needs further . study and evaluation, The most significant need pertains to determining the amount of water that can be transferred and result in bene­ ficial use in one area without encroaching on the rights and needs of persons in the other watershed. While it may be debated that regionalized management strategies that would pro­ vide for greater input at the local level could be beneficial, it must also be emphasized that many water uses considered in the interest of the general pub­ lic will tend to be overlooked at the local level, Specifically, fish and wildlife uses; navigation; and recreational uses such as boating, skiing, aqd swimming would probably not receive a balanced evaluation and high priority by individuals or individual users. Local governments, industrial operators, and agricultural interests have demonstrated that they will give priority to their specific needs, with other uses of benefit to the general public receiving less consideration. Mangement by a statewide agency enables all uses to be con­ sidered and a balance established that will provide for reasonable use by all parties. This approach prevents any particular group from exploiting the water resources in the interest of meeting its own needs and to the detriment of others, 152 Public access to the waterways of the State of Georgia is limited, The avail ­ ability of recreational waters, trout streams, and large reservoirs to members of the general public who do not own property adjacent to these resources con­ tinues to be a problem. The state needs to give greater attention to the de­ velopment of procedures and programs that would enable more individuals to enjoy the water resources of the state. Additional studies and evaluations are needed to identify the more desirable approaches to meeting these needs. Finally, the Governor and Legislature of Georgia have determined that state management of our water resources can protect the interests of more people than can individual decision-making under the riparian doctrine. Extensive experience with the water quality program and recent experience with the allo­ cation of surface and ground water have demonstrated that the majority of the people of Georgia support this approach, Time and circumstances determine for each state the best administrative and management system, It appears at this time that Georgia has in place an effective management system, but one that will continue to need adjustments and modifications as better data become available and increased stresses are placed on the water resources of the state, FOOTNOTES 1. Ga.· Code Ann., secs. 40.-35 et seq. 2. 33 U.S.C. 1251 et seq. 3. 42 U.S.C. 300(f) et seq. 4. 42 U.S.C. 1857 et seq., as amended 42 U.S.C. 7401 et seq. 5. H.B. 1967. 6. 33 u.s.c. 1251 et seq. 7. Ga. L. 1972, p. 976 et seq. 8. Ga. Code Ann., secs. 43-14 et seq. 9. Id., secs. 43-16 et seq. 10. Id., secs. 88-13 et seq. 11. Id., secs. 42-24 et seq. 153 WATER RESOURCE PROBLEMS (Georgia) 1. Surf ace Water Law Water Withdrawal uses and allocation 3 Instream uses 3 Saline water intrusion - Land use relationships 4 Property damage 2 Ownership of submerged lands - Conjunctive use surface & ground water 2 Protection ground water recharge areas 3 Emergency use 3 Interbasin transfer 3 Interstate effects 3 Shoreline protection 2 Wetland protection 4 Public access 5 Reservation of reservoir sites 5 Water Administration Allocation standards & criteria 5 Data bases 5 Permit procedures 5 Regulation & enforcement 1 Agency structure & functions 1 Please mark as to priority using following code: 5 highest i l 1 lowest, but significant 2. 3. Diffused Surf ace Ground Water & Drainage Water - 2 - - - 5 4 4 4 2 - - 2 2 1 4 - 3 - 3 - 3 - 2 3 4 - 5 - s · - 3 5 5 - 2 3 1 - 1 Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address the problems. 154 QUESTIONS AND ANSWERS Q. The exemption of agricultural users from your permitting program creates a potential problem. Does one have to wait until you have demonstrated that you had a crisis situation or are you getting enough ammunition so you could effec­ tively lobby against the agricultural interests and get this thing changed? A. That is a good question. Actually we are permitting the municipal and industrial users. What the farmers are worried about is that we have put into place a license or permit for the other users, and they don't have . any. So whereas two or three years ago and before they were opposing being involved, they are now coming and saying we want to be included. It is very interesting to see that they met with the legislative committee in 1976 and said, "If you put us under that pr.ocess we will vote you out of office." Then we had the drought year, and some of their wells went dry. Just one year later, that same delegation went back--about 75 of the major farmers in this area--and requested a meeting with the legislative committee and said, "We want to be included." That serious problem brought that to their attention. Q. Do you see this changing? A. Yes, we really do. We feel that it would be good to spend about ~year or two getting some additional information and going through the process of loo~­ ing through the alternatives--the Florida approach and maybe other approaches to handling it. The best way to minimize the bureaucracy is the main thing that the farmer is concerned about. He doesn't have an objection to being told "Okay, · you can depend on 1 million gallons a day." The other thing we don't really know is what we can permit these adjoining farmers. We need a better data base in much of this area of the country until we are really com­ fortable in permitting all these peoples. This is another problem that we have. Q. Have you considered using your ground-water resource as a storage against drought so you would have a very high permitted level--use that during a drought so in effect you pulled down your water level and take several years to build it back up again? A. No, we haven't used that approach in Georgia because of the particular aquifer we are working with and the fact that there are so few streams avail ­ able as alternatives. What you are saying is to use surface water and go to ground water as an alternative. Above this line (on a map of Georgia) there really isn't any ground water, and yet that is where a lot of our people are. Below this line, industry and towns that are using ground water are usually not located along rivers. So ~e haven't really looked at that alternative. Q. Are there any state gover-nment projects relating drinking water assistance to communities for development? A. No, there essentially is no federal or state money available to local communities to develop water supply. They might be able to get some assistance from the Farmers Home Administration, and sometimes they can work with the Soil Conservation Service to build a watershed project. Most of those have stopped, 155 and I don't see very many of those in the future. There just isn't very much state or federal money available for that kind of thing. Q. The Florida report emphasized the combination of water resources management and planning, including the relationship of water planning to land use. What is the situation in Georgia? A. In following through with what Mr. Bomar said, we are not oriented toward land use planning other than at the local level of government. On the other hand since we coordinate air quality, water quality, solid waste management, and all the other environmental programs, we are indirectly doing a lot of land use management--not so much planning. For example, the Miller Brewing Company that I used as an example a little while earlier wanted to locate in the north­ ern end of the state, and we §imply said, "You can't do it." The resources will not support you. You cannot get 6 million gallons of water a day and then have a stream that can assimilate 25 hundred pounds of BOD after you have treated it. You have got to look below this line." Therefore, we are effect­ ing some control through resource management. There is the same kind of atti ­ tude that Alabama talked about as far as the state being given land use con­ trol authority--there's tremendous objection to it. We need strong support for the home rule concept of land use planning and zoning. Some local governments do a good job and some do a lousy job or no job at all as far ·as land use con­ trol or planning is concerned. We don't really do a lot of resource planning. I think the five-year study that we are now getting underway will give us the data base to develop a much better plan for ground-water use. The 208 program and the river basin plans we are developing will be putting into place a management plan for surface water, but ground water is still a problem for us. Q. Your standards for water allocation under your new amendments that you list on page 11 .seem to relate to reasonable use, but I don't see the term reason-· able use. Is it mentioned? A. The courts themselves have not~given us too much help. What is a reason­ able use requires a case by case determination. Q. In setting these, you haven't done so on the basis of a legislative man­ date to develop guidelines for reasonable use. Is this a substitute for rea­ sonable use? A. Yes, in effect, although we hope in trying these we will in effect have a reasonable use of water resources, and by doing this we will avoid potential conflicts. Q. I want to clear up something in my mind about your ground-water laws. Is either of those laws applicable throughout the state or are they only trigger­ ed by designation of special areas? A. No, they are statewide--fully applicable. Q. Why did you choose the 100,000 gpd cut-off for permits? L. ) \I A. It is strictly arbitrary. We put it into the ground-water law after look­ ing at the ground-water uses in the state. But the only thing you can say is that it is an arbitrary number that we decided to use. We selected that num­ ber in 1972. We did it by laying out the ground-water users and saying, "Would there be any problems related to use anywhere less than that?" Obviously, if you had 25 of them in one little area you might have a problem. We don't have any of that kind of thing, and so it was decided that if we cut it off at that, it would protect the resource. That still seems to be a good number. Q. Has there been any thinking in Georgia towards creating a comprehensive water plan, to look at water based recreation, water quality, water supply, flood management program, and fishery management--say using your title III planning? A. Not along the lines you are talking about. Not a real in-depth type. For one thing the state gets very few title ill funds--! think about $50,000 per year. Q. I would like to extend a question asked earlier of Florida. Do you see any movement in the state toward financing th~ough special taxes or sources other than general revenue funds? There are tremendous expenses that are now or will be incurred through water management in the state. A. I don't see us going to that in the near future. I really think what we have .to go toward over a period of time would be the same type thing as the heavily populated European countries have gone to. In Germany in the Ruhr River basin, for example, you pay the local government so much per liter of water that ·they take out of the river. That is a very realistic approach that we are going to have to take a look at in this country. I think it is .going to come as a result of us getting much greater pressure on the .water resource as they have. They didn't do it until they reached a c.risis, and then they had to put in that type of structure. It is a very business-like way to deal with the problem, but when you have as much water as most of the states in the Southeast, it is going to be awhile in coming, I think. Q. I have one other question that should be asked to all the delegations, especially Georgia and Florida, in connection with the institutional organiza­ tions of management--centralized vs. decentralized. What is the success of each of these in dealing with the federal government? A. I would like to make a couple of comments on that and then Florida might want to respond. One of the things is that in a lot of the Corps of Engineers projects that now have storage, local users are paying for that for water sup-­ ply purposes. For example, we are working with the Corps of Engineers on modification of a project where there is storage for water supply only. Atlan­ ta and the other local governments are paying for that. I think a gradual expansion in that system over a several-year period would bring about an ac­ ceptance of the fact that if you are going to take large amounts of water, there ought to be some price tag applied to it. The other thing, though, as you get down to the farmer that owns a couple of thousand acres with a well in the middle of it--he claims that is his property. How are we going to deal with trying to assess him? 157 Q. That issue with Atlanta--! always saw that as being a matter of sharing the cost of storage area. When a state or any organization allows a federal organ­ ization to come in and to build those structures, it gives up flexibility. A. That leads into the issue of permitting federal facilities. I think it is encouraging that the 1977 Clean Air Act and the Pollution Control Act Amend­ ments now require federal installations to qe permitted. I think it is very encouraging to see that Congress has been very clear now ·that the states are allowed to permit both air and water operations under those two laws. Of course, that doesn't deal specifically with the Corps of Engineers project unless we are going to apply water quality requirements. This would be our approach now in that they would have to get a permit because they would be dis­ charging from the facility. So I think there are some tools that have come into being recently that we can use in dealing with federal facilities. We would certainly plan to do that on any future projects, _although we don't see any future projects on the horizon. Q. Has anyone quantified for the agricultural interests the real impact of not being covered under the permit system? Q. What I want to do is make people aware of the level of agricultural draft in developing irrigation. In Florida, we have a very long growing season, it is true. The only time we don't gro~ is in the sunnner when it's too ho~ to grow anything. It is not · a good climate for growing things in the summer. But agriculture was very far down the list, expecially on an annual basis. Yet, listening to you, I had a feeling that this situation might be changing. A. It is changing in the area we are talking about, and, also, you can't really look at it on an annual basis because in this area of the state they have two crops. You would begin irrigating in March, which they did this year, if you don't get the rain and you may still be irrigating in November. You .have to look at the critical period like last year when we had the drought year. We had several weeks of drought and that is what brings about the deple­ tion. A number of wells go dry and all of a sudden no one has a dependable water supply. It is that drought that you have to consider in the design of your system. Q. The point you have to make in agricultural use, even if it is a wet year is that you are going to do a lot of irrigating in Florida and in Georgia and in many other states. The rainfall is spread out very unevenly~ and there are \ going to be dry periods, particularly in Florida where our driest season runs from November to April and sometimes May. Yet that is the peak _of our agri ­ cultural season. 158 : Mississippi 159 THE WATER LAWS OF MISSISSIPPI Jack W. Pepper State Water Engineer Mississippi Board of Water Commissioners Jackson, Mississippi Prior to the passage of the Water Rights Act1 in 1956, ·the people of Missis­ sippi were more concerned with means to dispose of excess water than with rights to use water. There apparently had been no court decisions in the state dealing with the right to use water. The rfght to use water was based on the riparian doctrine of the common law, handed down from the earliest history of this country. When the first settlers came to Mississippi, the streams were important as a means of transportation, a source of power for small mills, water supply for domestic uses, and as habitat for lish life. Most of these uses required the water to remain in the stream with only insignificant amounts consumed. Under the pure definition of the riparian doctrine, a person whose p~operty abuts on the bank of a stream is entitled to have the stream flow past his property undiminished in quantity and unimpaired in quality. This usually means that no dams could be constructed to store excess waters and that no water could be withdrawn from the streams for municipal, industrial, or agri ­ cultural uses. A further complication concerns definition of. riparian land. Many streams have highways or roads running along their band~. These roads are owned by state or local governments with the result that the land away from the stream may be classified as ndnriparian since there is a break in the owner­ ship. In some states the courts have followed a "reasonable use" concept that will allow restricted uses of water from st~eams. A.riparian ownyr can use area- . sonable amount of water from the stream flowing past his property. It is necessary for the courts to determine the extent of this "reasonable use," and if conditions change because of competition from additional water users, these amounts have to be adjusted. It is not surprising that very few people in Mississippi really understood just what water rights they possessed. It might be helpful to review the development of legislation prior to the pas­ sage of the Water Rights Act in 1956. Mississippi's first water problems stemmed from damage caused by excess water and problems of damage to water itself. Thus some of the first legislation enacted was to enable the formation of drainage districts, making it possible for landowners to cooperate for removal of surplus water from agricultural lands. Levee districts were formed to protect land, principally agricultural, from 160 flood waters. The U.S. Army Corps of Engineers began many important projects of flood control on the Mississippi River, Yazoo River, and other major streams in the state. Later, soil conservation districts were organized as political subdivisions of the state. These provided assistance to landowners in solving soil and water conservation problems. Federal and state agencies cooperated with these dis­ tricts, making their work even more effective. Other conservation programs for education and information, cost sharing, loans, and other assistance were put into operation under the direction of the Extension Service, the Agricultural Stabilization and Conservation Service, the Farmers Home Administration, and other federal, state, and local groups. Congress provided for upstream flood prevention projects under the direction of · the U.S. Department of Agriculture, and a project was started in Mississippi on the Yazoo-Little Tallahatchie Watershed. Later, with the passage of the Water­ shed Protection and Flood Prevention Act (P.L. 566), 2 assistance for upstream protection and flood prevention was extended to other watersheds. This law is administered by the Soil Conservation Service with local people sharing respon­ sibilities and costs. l Several river basin districts have been created in recent years, with others likely to be created as the need arises. These districts are political sub­ divisions of the state and are financed by state and county funds. Pollution control laws have been passed and programs of pollution abatement are becoming more effective each year. ) In 1952, the first of a series of dry years, many water users and citizens throughout Mississippi became conscious, as never before, of the increasing occurrence of other types of water problems--those arising out of the day-to­ day attempts to use water. Attention was focused upon seasonal shortages and local competition for supplies. The leaders were aware that needs for water in all fields of use had expanded tremendously, and they felt certain that this expansion of need would continue. For the first time, questions were raised about whether existing laws would provide the protection needed for invest­ ments in developing, storing, conserving, and using water resources. Early in 1953, a number of organizations in the state became interested in these problems and possible solutions. The Mississippi Inter-Organizational Committee on Water Resouces was formed in J uly and had a membership represent­ ing agricultural, industrial, municipal, and recreational water users. Organ­ izations and agencies helped the Commit.tee gather data on statewide problems concerning water resources, water use and needs, climate, rainfall, and related matters. Mississippi water laws and court decisions, and those of other states, were studied by subcommittees. As a result of much work from a large number of people, the Inter-Organizational Committee in December released a printed report, "The Beneficial Use of Water in Mississippi." .The Mississippi Legislature took favorable action on the recommendations of the Inter-Organizational Committee and created the Mississippi Water Resources Policy Commission. The new commission continued to utilize the assistance of 161 the various state and federal agencies, and maintained the old Inter-Organiza­ tional Committee with its fa'cilities. After presenting the preliminary report at a series of meetings around the state, a final revision of its report, under the title "Water for the Future in Mississippi," was released in October, 1955. As a further effort to provide the 1956 Legislature with sound recommendations, the Commission called upon the Mississippi Bar Association to appoint a com­ mittee to help it develop its broad recommendations into the form necessary to be introduced in the Legislature. As the result of the cooperative efforts of many people, the Water Rights Act was passed by the 1956 Mississippi Legislature and signed into law on April 6, 1956. For the administration of the water law, there was created a Board of Water Commissioners (BWC), consisting of seven members appointed by the Governor, one from each of the congressional districts as then constituted, and one from the state at large. The Act states that the membership of BWC shall include at le~st one member well versed in each of the major types of water uses in the state as follows: recreational, industrial, municipal, and agricultural. In its declaration of policy, the Act states that, The general welfare of the people of the State of Missis­ sippi requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, . · . . and that the public and private funds for the promotion and expansion of the beneficial use of water resources shall be invested to the end that the best interest and welfare of the people is served. It further states that, water o~curring in any watercourse, lake, or other natural .water body of the state, is subject to appropriation in accordance with the provisions of this Act. The original Act did not apply to~"ground or subterranean water rights or usage." The Water Rights Act passed in 1956 is similar to most legislation in that it does not take rights away from anyone . . On the contrary, it recognizes some definite rights for persons owning property along a stream. As noted earlier, prior to the passage of the Act, it was not clear just what· rights a person did possess. BWC cannot approve the appropriation of water below the "established average minimum flow"; this will protect low flows so that the riparian owners can have the benefit of water flowing by their property. At least the flow will not be dried up by future upstream water users. The Act also recognized a person's right to construct a dam on streams, as long as it did not interfere with water rights below the dam. This Act was amended in 1978 to provide for safety of dams. But basically, a simple procedure can be followed by a person desiring to construct a dam. Remember, construction of dams was questionable under the old riparian doctrine. 162 The Act recognized the rights of those persons actually using water from the streams at the time of its passage, and even allowed a two-year period in which persons could use water without a permit. Persons who used. water prior to April 1, 1958, can file a claim with BWC to have their rights established. The Act also states that nothing therein will interfere with the right of any per­ son to make a domestic use. All surface water uses initiated after April 1, 1958, require the person to make an application for a permit. After approval of a permit, the person must complete the construction of facilities and actually put the water to the designated beneficial use. After an inspection by BWC personnel to determine the extent of the beneficial use, a license is issued. This license is record­ ed in the Chancery Clerk's office in the same manner as other property rights. With regard to establishment of water rights, numerous public meetings were held over the state, and BWC worked closely with the agricultural workers in each county, trying to locate those persons who were actually using water prior to April 1, 1958, and assisted them in getting their rights established and recorded. After 20 years, an occasional "sleeper" will turn up, but with the assistan~e and cooperation of a larger number ' of people, most of those using water have been located. BWC was also given the responsibility of inventorying the water resources of the state. It would be impossible to administer the provisions of the Act without adequate streamflow information, at least on a sufficient number of streams to determine the "established ayerage flows" where required. A Ground­ Water Management Act was enacted in 1976 and provides the mechanism for the use of permits for wells in problem areas. Water rights, as such, are not involved, but the management plan can correlate surface and ground-water use. Obviously, a monitoring program for ground water is now required. BWC carries out its in­ ventory responsibilities through cooperative programs w1th the U.S. Geological Survey, financed on a 50-50 state and federal cost sharing basis. These pro­ grams are the principal sources of all basic data on water resources in Missis­ sippi. The legislation establishing BWC was intended to bring about an orderly devel­ opment and best use of the available water supplies in the state. It should be obvious that the mere possession of a right to use water issued by the Board is no guarantee that the water will be available in the stream when needed. In 1963, many streams in the southern part of the state experienced low flows that were below any previously recorded. Even lower flows will occur eventually. The only sure way to have water available when needed is through water storage. Excesses during the winter and spring should be stored for use in the summer and fall when streamflows limit the amount of water use. BWC efforts are directed toward assisting water users and prospective water users achieve this goal. The priority system for water use will serve in the future to protect the users of highest priority. In winter and early spring, water will be available in most streams to provide sufficient amounts to fulfill all rights to store water. Early in the growing season, there may be enough water in the streams to satisfy the needs of all valid water users. As the streamflows decrease, 163 users may begin to feel shortages on some streams. In order for the high priority users to get water in the amounts covered by their written water rights, it may be necessary for the junior priorities to cease using water from the streams. It may even be necessary for all other users in the entire river basin to yield to the person with highest priority. Experience and adequate information on the availability of water will prevent some of the future competition. Additional storage can make water available for use instead of allowing it to flow to the Gulf of Mexico. Irrigators with low priorities can begin their water uses earlier and can have the level of soil moisture raised to a point that should carry them through the dry periods when it will be necessary to yield the streamflow to high priority users. There are ample supplies ·of water in Mississippi; it is the distribution that needs to be better managed. Mississippi is the only state east of the Mississippi River that has adopted the prior appropriation system for water rights. Twenty years of experience have shuwn that the principle will work in this state. There have been only a very few protects registered in attempts to prevent BWC from issuing per­ mits, and these were usually withdrawn after a simple explanation. To date, there .have been no court decisions to reverse a BWC finding. As more and more industries move into the state, and.as more and more farmers use irrigation as part of_ their farming practices, even greater amounts of water will be required. Creation of the various districts has provided a means to finance the construction of the facilities necessary to manage our water resources. With the passage of the Water Rights Act, the legal authority that is needed to protect the investments now exists. By continuing to work together at all levels of government, water resources can be developed to the fullest extent to which they are capable. How well our water resources are managed will determine the future of the state. FOOTNOTES 1. Miss. Code Ann., secs. 51(3)(1) et seq. 2. 16 U.S.C. 1001 et seq. 164 WATER RESOURCE PROBLEMS* (Mississippi) 1. Surf ace 2. Diffused Surface Water Law Water Water & Drainage Withdrawal uses and allocation 1 Instream uses Saline water intrusion Land use relationships 3 Property damage 4 Ownership of submerged lands Conjunctive use surface & ground water 2 Protection ground water recharge areas Emergency use 2 Interbasin transfer 4 Interstate effects 5 Shoreline protection .. Wetland protection Public access 3 Reservation of reservoir sites Water Administration Allocation standards & criteria 4 Data bases 5 Permit procedures 3 Regulation & enforcement 1 Agency structure & functions 2 Please mark as to priority using following code: 5 highest i l 1 lowest, but significant 3. Ground Water 2 3 1 5 4 4 5 3 1 2 Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less .severe or that existing laws address the problems. *Problem identification by Marvin T. Bond, Director, Mississippi Water Resources Research Institute. 165 / ' North Carolina 167 SOME CURRENT LEGAL ISSUES IN NORTH CAROLINA CONCERNING DIVERSION OF WATER FOR PUBLIC WATER SUPPLIES AND RELATED MATTERS Milton S. Heath, Jr. Associate Director Institute of Government University of North Carolina at Chapel Hill Chapel Hill, North Carolina WATER RIGHTS ISSUES Common Law of North Carolina North Carolina case law consistently holds that water may not be legally divert ­ ed for public water supply purposes if the diversion is a material one that results in an "unreasonable use" of the water by a riparian proprietor, to the injury of a downstream riparian owner. 1 More recently, the view has been ex­ pressed in Pernell v. Henderson 2 that withdrawals for municipal water supply purposes are "not in the exercise of the traditional right of a riparian owner to make a reasonable domestic use of the water without accountability to other riparian owners." Pernell's conclusion that traditional riparian rights do not include diversions for public water supply was based on two rationales. First, the withdrawal of water for use not by a single individual but by a great number of people is an extraordinary use not properly an incident of riparian status. Second, a large amount of the water withdrawn will inevitably be used on nonriparian land.3 The North Carolina cases are silent on whether any legal consequences turn upon distinctions between inter-basin diversions, transwatershed diversions, and simple diversions around the property of a particular plaintiff. If these fac­ tual variations are legally significant, the opinions in the North Carolina cases do not say so. The North Carolina Supreme Court's concern in Pernell that municipal use inev­ itably leads to use of water on nonriparian land could refer to use on any tract of land not contiguous to the stream and/or to land beyond the watershed . North Carolina has held that to qualify as riparian land, the land must be ad­ jacent to the stream,4 but has never indicated the outer boundary of riparian land.5 It is unclear whether liability arises from the diversion itself or whether injury must be demonstrated by the complainant before a cause of action arises . 168 In Pernell the Court arguably implied that since a municipal diversion was a nonriparian use, it was unlawful per se.6 However, the language in Pernell which could be construed to impose absolute liability was not necessary to the decision. The· case actually held that a claim for relief had been sufficiently stated and where the complaint alleged actual injury to the lower riparian owner from the municipal diversion that the value of plaintiff's mill site had been "destroyed or greatly reduced, and his operation of the mill rendered un­ profitable. "7 Other jurisdictions are apparently split on this issue.a Some courts add to the rule that water cannot be used on nonriparian land the requirement that the diversion, if it is for a reasonable use in itself, must cause some actual and material injury to the present or future enjoyment of the property of the lower proprietor before liability attaches. Other courts hold that any use of water on nonriparian land is an infringement on the rights of the lower riparian owner. Both the language and the facts of the pre-PePnelt cases (i.e., Cook v. Mebane, Smith v. Morgantown, and Geer v. Durham Water Co.9), support the "material in­ jury" test. Further support for the "material injury" test is found in the early case of Harris v. The Norfolk and Western Railway Co.lO which held that a railroad company was not liable for damages for diverting water to supply its locomotives, where "the quantity taken does not materially, appreciably, per­ ceptibly or sensibly •.. reduce the volume of water flowing down the stream." Professor William Aycock has suggested that the court may systematically treat municipalities less favorably than industries with respect to diversions. The diversion of water by municipalities for use by inhab­ itants is looked upon more strictly by the court than di­ version by industrial .users. In 1924 permanent damages were awarded a lower riparian owner against the town of Morgantown notwithstanding the fact that the plaintiff was not making any use of the water from the stream. This decision was more in accord with the doctrine of natural flow than the doctrine of reasonable use. In 1941 the court held that a municipality [Henderson], as riparian owner, had no right to sulply the needs of its inhabit ­ ants from a watercourse.l If the court has tended to view municipal diversions in these old cases unfa­ vorably, perhaps retaining thereby an element of the "natural flow" philosophy, one may yet wonder if this attitude would persist today in the face of expand­ ing public water supply needs and of legislation that reflects a more favorable legal policy toward public water supplies.12 Material Injury. If the material injury test does apply, what is a "material" or "appreciable" or "perceptible" reduction in volume of streamflow? The court in Harris provides the following guidance: 1. The court stated that, "the size and character of the stream [have] much to do with the quantity of water which may be with­ drawn from it." 169 2. On the facts of the case, the court stated that, "it requires only a cursory perusal of the evidence" to sustain a jury find­ ing that no unlawful diversion was committed. Expert testimony showed that the pumping of water amounted to 1/50 of 1 percent of the streamflow during the periods measured, and that a person standing on the river bank could not see any difference. (The streamflow evidence was rather skimpy, consisting of a few measurements taken by plaintiff's engineering expert.) 3. The court favorably cited examples of English decisions which upheld withdrawals for locomotives that deprived a lower ripar­ ian owner of only 11/12 of one horsepower, or that did no injury in wet weather and never shortened the working day of a down­ stream mill by more than a few minutes a day. The North Carolina municipal water supply cases provide very little guidance on the question of what is a material injury. In Geer, there is dicta indicating that causing uneven and irregular flows, or gradually diminishing flows, which damage plaintiff's property would probably state a cause of action. The extent of the uneven and diminished flows is not evident from the reported decision. In the other municipal water supply cases, damage awards that were confirmed give some indica~ion of the extent of the inju~ies suffered in each case (e.g., Cook: $4,000 permanent ·damages for diminution of flow by diversion; and Smith: $100 permanent damages for unreasonable diversion.) In both Cook and Geer, interference with a developed operating mill site was involved, but in Smith plaintiff was allowed to recover damages for an undeveloped and unappropriated site. Remedies. North Carolina's Supreme Court has only dealt with two types of remedies in its municipal diversion cases: damages and injunction. In Per­ nell, Cook, Smith, and Geer, apparently only damages were sought. In each case the lower riparian owner was apparently seeking an award ·of permanent damages, a form of relief first approved in Geer. (The plaintiff in Pernell was pre­ sumably requesting permanent damages; the plaintiffs in the other cases definitely were.) It is not necessary for the lower riparian proprietor to be making any actual use of the water flowing by his property in order to recover.13 The appro­ priate measure of damages is the decrease, if any, in the reasonable market value of the plaintiff's property attributable to the diversion.14 In effect, payment of permanent damages provides the municipality with an "easement" to continue diverting.15 However, it would seem that the "easement" does not extend beyond the amount of water being diverted at the time of the award.16 Damages, other than permanent damages, have been allowed. In Geer, the lower mill owner was allowed to recoup past actual damages as well as an award of permanent damages. Recovery for past damages is limited by the applicable statute of limitations, in Geer, to the three years next proceeding the bring­ ing of the action. In only one municipal diversion case has the court addressed the issue of an 170 injunction to halt the diversion, and then only in dicta. In Geer, the court said concerning the defendant water company's serving the City of Durham, "We think that the defendant is a quasi public corporation, in its fullest sense, and that neither the public interest, nor the public safety, would permit its abatement as a nuisance."1 7 The broad language of Geer raises doubts about the availability of injunctive relief. ' North Carolina has traditionally balanced the relative conveniences of the par- ties in water rights cases so as to deny an injunction, particularly where a preliminary injunction was requested.18 In Veazie v. City of Durham, the City of Durham was enjoined from polluting a waterway with raw sewage. However, Veazie is distinguishable in that the in­ junction appears to have been granted not on the basis of a riparian rights invasion, but because a statute prohibited the discharge of untreated sewage into a stream above the intake point of a public drinking water supply.20 A recent case on a related water rights issue, flooding of upstream land caused by a municipal dam, indicates that the action brought by the injured proprietor is properly denominated an action for "inverse condemnation," where the party invading the property right has the authority to condemn the property right in the exercise of its power of eminent domain.21 Since "[t]he right t~ have a natural watercourse continue its physical existence upon one's property is as much property as is the right to have the hills and forests remain in place, 1122 it would seem that an action brought by a lower riparian owner against a munic­ ipal diverter would also be termed an action for inverse condemnation. 23 In order for a municipality to acquire an "easement" by prescription to divert waters, it must make continuous and adverse use of the water for 20 years and even then the easement acquired extends only to the extent of the user during the required period.24 Legislation Supplementing or Modifying the Common Law The diversion issue is addressed in the context of joint or cooperative water supply projects of cities and counties by two North Carolina statutes: the Water and Sewer Authorities Act of 1955 and a 1961 statute that enables cities and counties to undertake cooperative projects without creating an authority. The concepts expressed in the Water and Sewer Authorities Act would have been extended to all city and county water supply projects by legis­ lation proposed, but not enacted, in the early 1970's. Other related legislation includes the Water Use Act of 1967 (the "Capacity Use Law"), the Stored Water Act, the Dam Safety Law, and a series of riders concern­ ing diversion or riparian rights contained in early water resources legislation. The Water and Sewer Authorities Act. The Water and Sewer Authorities Act was enacted in 1955 as part of the effort to develop appropriate enabling laws for regional water supply needs in North Carolina. This Act provides a framework for cities, counties, special districts, and other local governments to under­ take cooperative regional water or sewer projects through the mechanism of a 171 public authority. It empowers two or more units of local government to orga­ nize a water or sewer authority, to be· governed by a board whose members represent the various participating units. The authority can acquire and operate entire water or sewer systems, or lesser ·facilities such as an indi­ vidual water line. The only financing method provided by this Act is revenue bonds, backed by fees and charses--a limitation that may account for the fact that few localities have sought to utilize the Water and Sewer Authorities Law as a vehicle for water or sewer undertakings. Of particular relevance to this study are the provisions of this Act relating to acquisition of water rights and related lands by a water and sewer authority. As a prerequisite to condemning such rights or property, an authority is re­ quired to secure the approval of the Environmental Management Commission (EMC). 25 The authority must present to· EMC a petition,. which "shall include a description of the waters or water rights involved, the plans for impounding or diverting such waters, and the names of the riparian owners affected thereby." On the basis of this information and of public hearings, EMC is to issue a cer­ tificate of approval if it finds the project "consistent with the maximum bene­ ficial use of the water resources in the State and shall give paramount con­ sideration to the state-wide effect of the proposed project rather than its purely local or regional effect."26 . It seems plain that the provisions quoted in t~e previous paragraph, standing alone, empower EMC to confer its approval upon plans involving diversion of water, if it can make the requisite statutory findings. Of the several items of information required in a petition to EMC as a condition of approval of · eminent domain proceedings, one is the applicant's plans for "divert.ing" the waters involved. Subsequent provisions of this section empower EMC to approve the condemnation proceedings to implement the applicant's plans, if it finds the project "consistent with the maximum beneficial use," giving highest priority to the state-wide effect of the project . rather than; its local or regio·nal effect. The standard thus set forth to guide EMC' s '.judgment is one which encourages it to approve diversions which--individually or in conjunction with .other diversions--are found to be meritorious from a state-wide point of view and to promote the principle of beneficial use of wat~r resources. If the !condemnation proceeding itself does not provide ~omplete relief . to injured ;r.!parian owners1· a later Pt.)P~'ion of the statute points to the ·remedy: Any riparian owner alleging an injury as .a result of any act of an authority created under this chapter may maintain an action for relief against the acts of the authority either in the county where the lands of such riparian owner lie or in the county in which the principal off ice of the authority is maintained.27 "Diversions" are not defined in the Water and Sewer Authorities Act. The con­ text suggests, though, that a diversion within the meaning of this Act includes trans-watershed diversions, since EMC is required to evaluate the detriment from the proposed project to the present or potential water use in the "affected watershed."28 Presumably a proceeding under this provision seeking EMC's approval of condem- 172 nation action would directly affect only parties to the proce~ding whose prop­ erty is proposed to be taken. It might have some impact, however, on other intetests. For example, an Authority might elect to condemn only interests in land and water that would be inundated by a reservoir, together with a modest . buffer area immediately adjacent to a reservoir. Yet, the Act requires that all "known affected riparian owners" be notified of the proceedings--a group that might include some ·downstream owners. Whether or not those downstream owners chose to participate in the proceeding, EMC's final order in the pro­ ceeding might explicitly or implicitly affect the interests of those owners in later litigation with the Authority. The 1961 City-County Cooperation Act. Although the Water and Sewer Authorities Law offered one way for cities and counties to develop cooperative regional water or sewer projects, the need for other and more flexible options continued to be felt by water supply officials. The call for further enabling legisla­ tion was ~nswered in 1961.29 This law offers another optional approach which was described in the 1961 Legislative Issue of Popula:ra GoVePrlJ7lent30 as follows: Chapter 1001 authorizes counties to acquire and operate water and sewer systems, using the power of eminent domain where necessary, and to serve customers both within and without the county, with varying rates if desired. It also authorizes counties and cities, in combination, to jointly operate water and sewer systems under mutually agreeable terms and to establish for these purposes joint operating _departments. Insofar as counties are concerned, the act declares water and sewerage expenditures to be a special purpose and necessary expense and counties are authorized and given approval to levy special taxes and to appropriate money for water and sewerage services .•• .• This legislation was proposed by the Research Triangle Plan­ ning CoIIDnission because of the immediate needs for water and sewerage services in the Research Triangle area of Durham and Wake Counties. Provision of adequate water and sewerage services to the Research Triangle area of these counties, essential to the hoped-for development of the area, would require relative large expenditures of money. At present, the area needing these services is largely undeveloped and the organization of a sanitary district or other means of locally financing the needed facilities would not appear to be feasible. If the facilities needed to encourage and promote growth and to serve the growth already present are to be provided, it appears that financial participation by one or more of the existing governmental units [Durham and Wake Counties or the cities of Durham, Raleigh, Cary, and Morrisville] will be necessary. While counties and cities both already had authority to provide such services for their own inhabit ­ ants, neither had express authority to join with the other to provide services. Nor was there previously express 173 authority for ~ities and counties to establish joint agen­ cies for the administration of services jointly provided. Conversations with officials from other parts of the State and with officers of the State agencies concerned with water resources clearly indicated that while the situation in the Research Triangle was perhaps more pressing than that found in other areas of the State, it was certainly not unique and similar conditions were likely to develop in a number of other areas of the State. Thus the Research Triangle Planning Commission deliberately attempted to draft the legislation in a fashion that would provide suf­ ficient flexibility for its use throughout the State wher­ ever cities and counties need to cooperate in extending or in providing new water and sewerage services. This legislation contains provisions directly bearing upon diversions from one river to another for public water supply purposes. One section31 of the Act provides that: The word "authority" as used in G.S. 162A-7(b) through (f) includes counties and cities acting jointly or through joint agencies .to provide water services or sewer services or both. No county or city acting jointly and no joint agency may divert water from one stream or river to another nor institute any proceeding in the nature of eminent domain to acquire water, water rights, or lands having water rights attached thereto until the diversion or acqui­ sition is authorized by a certificate from the Board of Water and Air Resources pursuant to G.S. 162A-7. Any pro­ ceeding to secure a certificate from the Board shall be governed by the provisions of G.S. 162A-7(b) through 162A-7 (f). Up to this point in the Act, it would seem clear that EMC could confer its approval upon plans involving diversions of water by counties and municipali ­ ties acting jointly or collectively--as was previously said of EMC approval of plans of water and sewer authorities.32 Two sections later in the Act appears the following provision: Diversion[s] of water from any major river basin the main stream of which downstream from the point of diversion is not located entirely in North Carolina is prohibited except when the diversion is now permitted by law. Intervening between the two sections quoted above appears the following provi­ sion33 which stresses the compatability of the Act with common law riparian rights concepts: Nothing in this Article changes or modifies existing com­ mon or statute law with respect to the relative rights of riparian owners or others concerning the use of or disposal of water in the streams of North Carolina. 174 What effect does section 153A-287 haye upon the apparent intent of the earlier provision in section 153A-285 to authorize diversions with the approval of EMC? With respect to counties and municipalities situated in river basins whose downstream reaches lie entirely within North Carolina, the answer seems clear. When such counties and municipalities undertake a cooperative water or sewer endeavor by authority of the 1961 Act, they may secure the approval of EMC to divert water from one river to another in connection with takings of water rights, etc. With respect to counties and municipalities situated in river basins whose downstream reaches do not lie entirely within North Carolina, the answer is less clear. The prohibition in section 153A-287 against diversion from these river basins does not apply "where such diversion is now permitted by law." The following question therefore is to be considered: Is a proposed diversion "now permitted by law" within the meaning of the statute? Two interpretations are possible: 1. The word "now" in this statute might be read as meaning "at the time when the statute is being _ applied." On this interpretation, at the time when the statute is applied, cities and counties act­ ing collectively or jointly would have been equated with a water and sewer authority by section 153A-285 since 1961 and, as such, could divert water with the permission of the EMC. 2. The word "now" might be read as meaning "prior to or at the time of the adoption of the 1961 Act." On this interpretation, diver­ sions from the proscribed group of river basins--even by cities and counties acting jointly or collectively with EMC's approval-­ must be regarded as prohibited unless the nature of the diversion was such (i.e., reasonable and immateria.1 injury) that it would have been permissible at common law. This second interpretation might invite an attack on the constitutionality of the statute. It is not entirely obvious that there is a reasonable basis for a distinction (as to divertability) among rivers on the sole basis that the downstream reaches do or do not lie entirely within North Carolina. Indeed, the transparent basis for the distinction in the Act was that it gave to those who happened to be sponsors of the bill (i.e., the Research Triangle area interests) a special advantage over other regions, since their three principal rivers (the Neuse, Tar, and Cape Fear) were exempted from the prohibition. And if there is no reasonable basis for such a distinction, the statute would be vulnerable to constitutional attack as a denial of the equal protection of the laws, or as a prohibited local act, or as amounting to a grant of an exclusive or separate emolument of privilege, contrary to the North Carolina Constitu­ tion. It might be argued that section 153A-287 prevents diversions by a water author­ ity as well as a group proceeding under the 1961 Act from river basins whose downstream reaches do not lie entirely within North Carolina. For either of two reasons this argument should not prevail. 175 First, at the time the 1961 Act was enacted the Water and Sewer Authorities Act already sanctioned diversions under some circumstances--i.e., diversions by a water authority were "now permitted by law," no matter how the word "now" is interpreted. Second, section 153A-287 should be limited to its context--cities and counties proceeding under the 1961 Act--and should not be extended beyond this to circumstances not then before the General Assembly. To do otherwise would amount to a repeal by implication of a pre-existing authority, a con­ struction that the courts will avoid where possible. This would also be con­ trary to section 734 of the 1961 Act, which provided that the powers granted by the Act were to be considered as supplementary to other acts, and that when­ ever its provisions conflict with any other act, a city or county may elect to proceed alternatively under the 1961 Act or under other legislation. Other Special District Laws. In addition to the Water and Sewer Authorities Act and the 1961 City-County Cooperation Act, there are several other laws that could be used as vehicles for cooperative regional water projects involving more than one unit of local government. These options include: - A county service district for water supply, under legislation enacted in 1973;35 - A county water district, under legislation enacted in 1977;36 - A sanitary district, under the traditional Sani~ary District Law;37 - A metropolitan water district, under the Metropolitan Water Dis­ tricts Act of 1971.38 All of these special district approaches off er ways of providing water services supported or supplemented by special property tax levies within the district; most of them can also rely on a full range of financing methods, including general ob.ligation and revenue bonds, rates and charges, and special assess­ ments (though not sanitary districts). They offer several different routes for organization of water services and several different ways to administer the services, once organized. By interpretation, it may be that all of these special district forms can ac­ quire water rights as well as interest in land, but only the sanitary district law specifically mentions water rights.39 None of these laws specifically refers to the right to make transwatershed or interbasin diversions of water, nor to any limitation on these rights. Presumably transactions in water rights are governed by the common law and any generally applicable statutory provi­ sions. Proposed Legislation Concerning Individual City and County Water Supply Proj­ ects. In 1971 the Legislative Research Commission recommended that diversions, including interbasin transfers, should be permitted by statute for all water supply systems that serve regional needs, including individual city and county systems, with appropriate safeguards such as exist under the Water Authorities Act. In its report to the General Assembly the Commission concluded that the principle of administratively sanctioned and safeguarded diversions had already been established by the Water Authorities Law. The Commission then reasoned as follows: 176 We believe, however, that the Water Authorities Law shoutd be amended to make it clear that this principle applies to all public water supply systems that are serving regional needs--whether these be city, county, water authority, joint or collective systems, or other local systems. This would not constitute a significant change in policy, but would only make consistent the application of an existing policy.40 To carry forward this principle, the Commission recommended that the Water and Air Resources Board be authorized by statute to review and approve diversions proposed by any city or county system serving a substantial regional popula­ tion, either within the county or in a multi-county region. Before approving such diversion the Board would have to .make three sets of findings: first, that the system would serve these regional needs; second, that the water to be diverted is "excess water attributable to an impoundment" within the meaning of the stored water law;41 and third, that the project would meet the statutory tests set forth for Water Authority diversions, i.e., that the project would be consistent with maximum beneficial uses of the water resources of the state and give paramount consideration to statewide (rather than purely local or regional) effects. Thus, the bill would have slightly extended the statutory procedure for administrative approval of Water Authority diversions, with the additional precaution of limiting city and county diversions to excess water that has been impounded. Bills were introduced to implement the Legislative Research Commission pro­ posals in 1971 and 1973, but none of them reached the floor of the Senate or House. The 1971. House bill42 received an unfavorable committee report, as did the 1973 House bill.43 Thus, in two consecutive sessions this bill to provide· a modest liberalization of diversion authority for .public water supply systems failed to clear the initial legislative hurdle of committee action. And this happened notwith­ standing the backing of the prestigious Legislative Research Commission and the presence of strong sponsors in both houses (Senator Gordon Allen and Represent­ atives Jack Stevens and Norwood Bryan). It also came at a time when support for conservation causes was running high. The unfavorable record of these pro­ posals does not augur well for the fate of similar proposals today. Water Use Act of 1967. In 1967, the General Assembly made a significant modi­ fication in common law water rights doctrines by enacting legislation that empowers EMC to require that large water users in areas of strong water com­ petition or water scarcity (so-called "capacity use areas") secure water use permits from the -Commission.44 The basic provisions of the statute were sum­ marized in the 1967 Legislative Issue of Popular Government as follows: A three-step process is contemplated under the act. First the Board [now, the Commission], after studies and hear­ ings, must find that a "capacity use area" should be de­ ciared. In this phase the Board is specifically directed to pursue all alternatives short of regulation. Second, the Board must conduct a rule-making proceeding. If it 177 finds, after further hearings, that any controls. are appro­ priate, the Board is to choose from a specified group of provisions those that it considers appropriate to the par­ ticular area. Third, permits are issued to large water users whose usage is likely to contribute substantially to the problems of water-short areas. In these permits, con­ ditions may be included that carry forward the purposes of the regulations adopted in the second phase of the pro­ ceedings. No permit conditions can go beyond the scope of those regulations. The range of c·ontrols available to the Department in imple­ menting the Act includes provisions on timing of water with­ drawals; protection against saltwater encroachment and against unreasonable adverse effects on water users in the area; well-spacing controls; limitations on well-pumping rates or levels; and reporting requirements. To guide the Board in the exercise of these powers, detailed criteria are laid down bearing a marked similarity to the factors that have traditionally been evaluated by the courts in resolving water-use disputes. To insure that only ·the largest users will be brought under regulation, the minimum usage for which a permit is required is fixed at 100,000 gallons per day. To insure that only those users are regulated (even among the 100,000-gpd class) who contribute significantly to the problem, the permits with conditions are required only for "consumptive users" of water--those who, as defined by the Act, substantially im­ pair water quantity or quality. Finally, to insure that fixed investments are not unfairly impaired, the Board is directed to take into consideration the reasonable needs of existing and certain potential water users, to the extent that their needs do not .unreasonably damage others • Consistent with the ultimate unity of the hydrologic cycle, the Act treats both surface and ground water in one law that applies equally to both. However, in recognition of the better-developed and more equitable rules of law that now govern the use of surface water (by comparison with ground water), it expresses an intent that th~ Board oper­ ate generally within the framework of the concept of ripar­ ian rights with regard to surface streams. The original 1967 Act has been actually applied only to ithe problem that was the main motivation . for its enactment--the hazard of saltwater contamination of ground water in the phosphate mining region of southeastern North Caro­ lina. In 1976, EMC considered but finally rejected a proposal to designate as a capacity use area the entire Yadkin River Basin downstream from the projected Perkins Nuclear Electric Generating Plant in Davie County. Staff proposals concerning other capacity use areas have been before the Commission in earlier years. 178 One amendment to the statute should be noted. In 1973, the General Assembly added to the original statute a procedure authorizing EMC to prohibit new or increased water withdrawals (or wastewater discharges) in any area found by . the Commission to be facing a generalized condition of water depletion (or water pollution). The immediate purpose_ of this amendment was to provide a short-cut procedure, or holding .action, to temporarily control a problem situation pending the establishment of a capacity use area. It is possible that the capacity use procedure could be used as a vehicle for arbitrating competing water uses in an area that might be affected by diver­ sions. Before declaring a capacity use area for such a purpose, EMC would have to find that aggregate uses of ground water or surface water, or both, in or affecting said area (i) have developed or threatened to develop to a degree which requires coordination and reg­ ulation, or (ii) exceed or threaten to exceed or otherwise threaten or impair, the renewal or replenishment of such waters or any part of them. Of these two alternative findings, the former would probably be easier to make and sustain than the latter. In any event, it is obvious that EMC does not casually or readily utilize this procedure, since only one capacity use area has been declared during the 10 years since enactment of the statute. There is no express authority in the statute for EMC to regulate, approve, or deny diversions within a capacity use area. To do so, the Commission would probably have to rely on its residual authority to adopt regulations and impose permit conditions "not inconsistent" with the Act "as the Commission finds necessary to implement the purposes" of the Act. 45 The following questions would have to be answered in the affirmative before this language could be cited to justify the Commission's initiating a program to regulate diversions under this statute: 1. Does the quoted language, standing alone, grant such authority? 2. Does the quoted language in its immediate context of specific permit-conditioning powers grant such authority? 3. Does the quoted language in the context of the whole statute grant such authority? In this connection, EMC would have to con­ sider among other things, the possible limiting effect of the provision that "[n]othing contained in this [Act] shall change or modify existing common or statutory law with respect to the rela­ tive rights of riparian owners concerning the use of surface water in this state."46 So far as is known, these questions have not been raised or answered by EMC or the courts. The Stored Water Act. In 1971 the General Assembly enacted legislation estab- 179 lishing a statutory right of withdrawal of excess water attributable to an impoundment.47 The legislation was designed to clarify the legal rights of those who impound water in upstream reservoirs to convey the water through the stream channel without interference by intervening owners and to withdraw the water downstream for use. A case in point is the arrangement that was made by the City of Winston-Salem to pay the Corps of Engineers to enlarge the storage of Kerr Scott Reservoir in order to augment the downstream flows of the Yadkin River, and thereby make more water available to the city for its public water supply. In this type of situation, reasoned the Legislative Research Commis­ sion Report48 that recommended the enactment of the Stored Water Act, Economics and common sense may sometimes dictate that a stream channel be used to convey stored water from an up­ stream reservoir to a downstream user, rather than build­ ing an expensive pipeline that duplicates the natural watercourse as a transmission artery. Where this is the case, it is only reasonable that the right to convey the stored water through the stream channel without inter­ ference, and the right to withdraw the water for use down­ stream, be clearly estabiished and protected by law. To carry forward these objectives, the Act provides that a person who lawfully impounds water has a legally protected right to withdraw any excess water created by the impoundment, over and above the natural stream flow. With­ drawals may be made from the impoundment, or downstream, and the impounder can legally prevent intervening, non-contributing riparian owners from withdrawing stream flows augmented by such storage. Local public water suppliers having a right of withdrawal may assert the right for water supply purposes--an impor­ tant statutory support for municipal water supply agencies. The Act expresses several limitations on the .right of withdrawal. Particularly important is a provision that "neither a right of withdrawal nor any assignment or transfer of said right may be asserted in defense against a claim that . . . water has been diverted without authority from the basin from which it was with­ drawn.1149 As stated in the Legislative Research Commission report,50 This provision makes it clear that the bill should not be construed of itself to provide any authority for trans­ watershed or transbasin diversions of water. The Stored Water Act would provide helpful legal authority for some water sup­ ply projects if an impoundment were involved. The Act would not resolve any diversion issues, however, leaving the parties to find their answers at common law or in other statutes. If the Act does apply to a projec.t it may also help settle streamflow measurement questions, by virtue of the following provision: (a) In litigation in which the rate of flow of water that would exist in the absence of an impoundment is in issue, that rate shall be deemed to be the minimum average flow for a period of seven consecutive days that have an aver­ age recurrence of once in 10 years unless a party to the litigation introduces a calculation that more closely 180 approximates the actual rate. A determination made by the Environmental Management Commission (i) of either that min­ imum average flow, or (ii) that adopts a calculation that more closely approximates the actual rate of flow, and introduced by one of the parties to the litigation, shall be prima facie correct. (b) The Environmental Management Commission is authorized to make the determinations specified in subsection (a)· of this section and to require the submission of such reports and such inspections as are necessary to permit those determinations.51 The Dam Safety Act. Another statutory modification of the common law is legis­ lation designed to protect against unsafe or undesirable construction and main­ tenance of dams. North Carolina, like many other states, has such a statute, the Dam Safety Law.52 Under this statute, EMC is authorized to review plans for building, repairing, altering, or removing dams in order to ensure safety and to maintain minimum stream flows necessary to maintain stream classifica­ tions and water quality standards. (Federally owned, subsidized, and licensed dams are exempt from the statute. Certain small dams are also exempt.) The work on projects subject to this law must be supervised by qualified engineers, who must certify to the completion of the work in accordance with design and other requirements. The statute also empowers EMC to conduct an inspection program covering existing dams through consulting engineers. · Water supply impoundments would have to be certified under the Dam Safety Law unless they fell in one of the exempt classes. This would require com­ pliance with the safety features of the law but--possibly of greater signifi ­ cance--it would require that the impoundment "satisfy minimum stream flow re­ quirements. "53 That is, it would mean that the project must maintain: stream flows of quantity sufficient in the judgment of the Department to meet and maintain stream classifications and water quality standards established by the Department of Natural and Economic Resources under the North Carolina Stream Sanitation Law and applicable to the waters affected by the project under consideration. In order to ensure that such classifications and standard~ shall be met and maintained, the Department may impose such conditions and requirements in orders and written approvals issued under this Part as, in its judgment, may be necessary to this end, including conditions and requirements relating to the release or discharge of designated flows from impoundments, the location or design of water outlets for impoundments and of water intakes, the amount and timing of withdrawal of water from a reservoir, and the construction of sub­ merged weirs or other devices designed to satisfy minimum stream flow requirements.54 In at least one other instance EMC is authorized to regulate streamflow effects of structures such as dams. Under the Small Watershed Act, watershed works of 181 improvement proposed under the Federal Watershed Protection and Flood Preven­ tion Act55 must be submitted to EMC for approval of certain design features, including the effect of a project on downstream flows. EMC is to approve only those work plans that, in its judgment show that the construction and operation of the proposed works of improvement (in conjunction with other such works and related structures of the district and the watershed) will not appreciably diminish the flow of useful water that would otherwise be available to existing downstream water users during critical periods. Emergency diversion of water. EMC has statutory power to allocate water in emergencies on the request of a county or city, after prescribed investigations and hearings, followed by a declaration of a water emergency by the Governor. 56 When these requirements have been met, EMC may authorize any county or city within the declared emergency area "to divert water in the emergency area suf­ ficient to take care of the needs of human consumption, necessary sanitation and public safety." 57 The emergency period is limited to 30 days, but any number of successive emergencies may be declared by the Governor. A city or county may become ineligible for the privilege of emergency allocations, how­ ever, if it fails to follow EMC reconnnendations to conserve water use or increase water supplies, or if (having rece~ved authority to divert) it fails thereafter to act diligently to eliminate future emergencies. The emergency diversion law should furnish some legal protection, both to an authorized diverter and to the owner or controller of the water source or the land that gives access to the water. But there is no indication in this law that it is intended to serve as an exclusive vehicle for diversions in time of emergency or otherwise; certainly it does not appear to preclude voluntary agreements concerning diversions. Legislative Riders Concerning Diversion or Riparian Rights. During the past two decades, a series of riders concerning diversions and riparian rights has been attached to water resources legislation. In 1959 amendments were added to an enabling bill for small watershed programs stating that it was "not the intention of the General Assembly to authorize hereby the diversion of water from one stream or watershed to another."58 Also in 1959 there was attached to a bill enabling cities and counties to participate in Corps of Engineers reser­ voir projects a rider providing that "[n]othing herein contained shall permit the diversion of water from one watershed to another."59 Since these amend­ ments were stated as disclaimers, merely negativing inferences that might otherwise have been drawn, it seems unlikely that they would be construed by the courts to add anything to the common law anti-diversion doctrine. As previously noted, a somewhat different approach was taken in the rider attached to 1961 legislation authorizing cities and counties to jointly furnish water and sewer services or to establish joint agencies to provide water and sewer services. In the course of its passage the amendments discussed earlier were added, which prohibited "the diversion of water from any major river basin, the main stem of which is not located entirely within North Carolina downstream from the point of such diversion, . . . except where such diversion is now permitted by law."60 182 Here the rider was not stated in the form of a disclaimer, but as a prohibi­ tion against diversion of water from certain river basins. The problems of predicting the ultimate effect of this legislation upon the legal remedies available to an injured riparian owner against a diverter have already been reviewed at length. Finally, the rider attached to the Capacity Use Areas Law has also been pre­ viously noted. This rider provides, as will be recalled, that "nothing con­ tained in this [Act] shall change or modify existing connnon or statutory law with respect to the relative rights of riparian owners concerning the use of surface water in this state." It is not easy to anticipate the potential mean­ ing and effect of this. general and non-specific disclaimer. As noted earlier, though, it may limit the power of EMC to authorize diversions within a capacity use area. Overall, a question occurs whether these several anti-diversionary riders can be taken to have any aggregate legal effect over and above their individual meanings. Regulation of Wells. To round out the picture, it should be noted that large users of well water are required by the Well Construction Act61 to comply with EMC standards for well construction and maintenance. Local boards of health also administer a related program that provides guidance to public water sup­ pliers who rely on well water; their emphasis, appropriately, is on public health aspects in the exercise of statutory powers.62 The basic ·provisions of the Well Construction Act were summarized in the Legis­ lative Issue of Popular Government as follows: Based upon a statutory finding of hazards to the public health and ground-water resources of the state that may result from improper well construction, this law sets forth a three-fold approach to the problem. First, it lays down some specific requirements and prohibitions for construction and maintenance, including sterilization of water-supply wells, provision of access ports to facilitate measuring water levels, and maintenance of valves and casings on flow­ ing artesian wells. Second, it vests in the [Environmental Management Commission] a general rule-making power concern­ ing well location, construction, repair and abandonment, and pump installation and repair. Third, it establishes permit requirements for wells or well systems with a design capacity of 100,000 gallons per day or greater, and for any wells in areas found by the [Commission] to need such pro­ tection for ground water resources and for the public safety and welfare. Permit applications may be rejected only for noncompliance with the act or with regulations of the [Com­ mission]. 183 Floodwaters, Surface Waters, and Surplus Waters Related theories concerning the legal status of floodwaters, diffused surface water and "surplus water" might have some bearing on the issues examined in this paper. "Floodwater" has been defined as water that overflows the banks of a natural watercourse and does not return to the stream but entirely loses its connec­ tion with the stream and spreads out over the adjacent countryside. 64 The case law on the subject is sparse and almost exclusively involves liability for damages from floods, rather than competing rights to use floodwater. "Diffused surface water," another classification largely arising out of lia­ bility litigation, is surface drainage that has not reached a natural water­ course and flows in a diffused fashion over the surface of the earth. In a majority of states whose courts have spoken to the subject, at connnon law, a landowner is considered the absolute owner of the diffused surf ace water that occurs on the premises, and may use it as he pleases, subject to liability for damage from improper disposal to the injury of others.65 An early North Caro­ lina case, by dictum, adheres to the absolute ownership rule.66 One might spec­ ulate that the same rule would probably apply to the right to use floodwaters as applies to the right to use diffused surface water. Occasional common law decisions outside of North Carolina have approached water use conflicts by identifying a minimum lake level or a minimum streamflow as the entitlement of the plaintiff riparian owners, and then determining whether these minima have been invaded.67 In effect, these decisions have allocated certain average or minimum flows to riparian owners as their right, and then decided whether water surplus to these needs was available for the defendant. Building upon these theortes, legislation has been enacted in a number of east­ ern and midwestern states that provides for establishment of minimum flows for the protection of riparian interests, and then (in some instances) establishes procedures for allocation of rights to withdraw surplus flows under permit. States having statutes designed along these lines that might serve as useful models, were North Carolina to consider enacting similar legislation, include Florida, Iowa, Michigan, and New Jersey. These statutes have been broadly summarized as follows: The purposes of the various flow standards are many. How­ ever, the real effect of each, especially in flood control statutes, is to decide how much water is available and what particular uses can be made of the water. The permit system and the flow guidelines affect both quantity avail ­ able and the uses of the water. Agencies determining flow standards appear to have been granted very broad power; the exercise of this authority by the states may be imper­ ative at this time. Earlier policies of uncontrolled ac­ cess to our nation's rivers and streams have lead to their exploitation, a situation now recognized as intolerable. 68 184 It is possible, if unlikely, that one or more of the common law theories reviewed in this section might be cited to justify limited diversion projects that affected only "surplus waters" or flood waters. The legislative prece­ dents summarized in the preceding paragraph as a model for possible North Caro­ lina legislation may be more pertinent. Some Tentative Conclusions Concerning Issues of North Carolina 1. The common law of riparian rights places limitations on inter­ basin or transwatershed diversions for public water supply pur­ poses, but the scope and effect of these limitations are not clear. It may be that any diversion for a municipal water supply infringes on the rights of lower riparian owners as a matter of law, or it may be that only a material diversion that results in unreasonable use of the water to the injury of a downstream riparian owner is legally actionable. It would require litiga­ tion to settle this point under contemporary circumstances. 2. If an unlawful diversion is found in a laws~it concerning a pub­ lic water supply project, damages would be the ordinary remedy. The language of an old North Carolina case raises doubts about the availability of injunctive relief; whether this is good law today is not clear. - 3. The common law of water rights has been modified in several re­ spects by legislation in North Carolina. Of particular signifi ­ cance for the proposed project is the Water and Sewer Authorities Act. With the approval of EMC, a water authority organized under this law probably would be authorized to divert water for water supply purposes in conjunction with the condemnation of water rights. 4. A 1961 law authorizing cities and counties to develop cooperative regional water or sewer projects may authorize diversions under procedures similar to the Water and Sewer Authorities Act, but the authority granted by this law is questionable in cases where the downstream reaches of the source river do not lie entirely within North Carolina. 5. The Capacity Use Areas Law (the Water Use Act of 1967) may pro­ vide a vehicle for supervision and control of diversions within a water management area established by EMC, but some interpretive questions would need to be resolved before this law could be used for this purpose. 6. Only water rights issues and related matters are addressed in this paper. Before any of the approaches reviewed here are seri ­ ously considered, there are other questions that ought to be examined. For example, there are organizational and financial issues under the Water and Sewer Authorities Act that should be 185 carefully evaluated before a water authority is proposed in a particular situation. 7. Common law theories concerning floodwaters, diffused surface water, and surplus waters might provide some support for argu­ ments to justify certain kinds of diversion projects. Attention might also be given, as a model for possible North Carolina legis­ lation, to legislative precedents in some states authorizing with­ drawal of water that is surplus to the needs of minimum flows retained for the benefit of riparian owners. SOME OBSERVATIONS CONCERNING FEDERAL AND INTERSTATE CONSIDERATIONS Introduction: Federal Matters State law provides the basic legal foundations for water use and water supply arrangements; federal law has a secondary role tied to specific federal inter­ ests. Thus, it is appropriate to have begun this paper by reviewing the funda­ mental state law issues, and then to move on to federal matters. Federal Interests. Some of the federal interests and concerns that are reflect­ ed in federal law and regulations include: 1. Activities and structures affecting navigable waters (e.g., through Corps of Engineers permits or Federal Power Commission licenses); 2. Evaluation of environmental effects of federal programs, includ­ ing licensing and regulation, construction, grants, etc. (e.g., through environmental impact statements under NEPA); 3. Protection against flood damage, tied to specific federal pro­ grams, such as housing subsidies, construction activities, etc. (e.g., through the Federal Flood Insurance Program); 4. Protection of the public health through standards and regulations tied to a recognized federal authority, such as the control of interstate commerce (e.g., the Safe Drinking Water Act); and 5. Protection of particular natural resources or environments, tied to a constitutional authority, such as the commerce clause (e.g., the Endangered Species Act or the Wild and Scenic Rivers Act). Federal Questions. Some of the questions that need to be asked regarding fed­ eral interests and some tentative, simplified answers to these questions are as follow: Question: What federal permits will be or may be required in connection with water supply projects? 186 Answer: A permit from the Chief of Engineers, U.S. Army, may be required under section 404 of the Federal Water Pollution Control Act for "discharge of dredged or fill material into the navigable waters."69 As the quoted words convey, how­ ever, it is quite possible that this particular permit requirement will not apply to the physical arrangements involved in some water supply projects. This should be taken into account in the design phase. Question: What other federal standards, requirements, or restrictions may be pertinent to water supply projects? Answer: 1. If a section 404 . permit is required, or if some other federal "action". is involved (such as receipt of an EPA grant), an envi­ ronmental impact statement may be necessary under NEPA.70 2. Federal Power Commission licenses for licensed water power proj­ ects in the Roanoke River basin (such as the Gaston Dam) should be examined for their possible bearing on a project.71 3. Some restrictions or requirements designed to prevent flood dam­ age may need to be met in response to the National Flood Insurance Act,7 2 but here again, as in the case. of section 404 permits, the physical arrangements contemplated may not bring a project within the scope of any such requirements. 4. National drinking water standards issued under the Safe Drinking Water Act73 may need to be considered in connection with project design and construction. 5. Requirements and restrictions concerning plants or animals on the endangered species list may need to be met under the National Endangered Species Act,74 if any such species are found in the affected area. 6. Restrictions or requirements concerning scenic rivers under the National Wild and Scenic Rivers Act75 may need to be met if a wild or scenic river were designated in the affected area. 7. Parallel or comparable requirements or restrictions may have to be met under some state laws, such as an environmental assessment or impact statement under the North Carolina Environmental Policy Act76 or the Clean Water Bond Act of 1977 (if state aid were used) or the North Carolina Natural and Scenic Rivers Act.77 It would take state legislation to designate a scenic or natural river under this law, however. Conclusions. An overall conclusion is that some federal permits, requirements, or restrictions may be pertinent to water supply projects. At a minimum, any applicable federal mandates may result in project delays, which might be con­ siderable if they were litigated. It is even conceivable that federal consid­ erations could present an insurmountable obstacle to a project. It is quite possible that some or all of the federal considerations will not come into play for a number of years; if so, federal law obviously should be reexamined at that time. 187 Introduction: Interstate Considerations If an interstate river system is affected by a water supply project, the ques­ tion arises whether this affects previous conclusions. Tentatively, the answer is that although the interstate aspects of the system potentially may make a difference, it seems likely that they do not affect the previous conclusions. There are four principal avenues for resolving interstate water controversies: 1. Federal legislation, 2. An agreement between two or more states without a formal compact, 3. An interstate compact, and 4. An original action in the Supreme Court between two or more states. The federal legislation that is pertinent to this report has already been review­ ed. Unless there is a controlling· interstate water compact or agreement, the remaining question involves litigation in the courts . . One possibility involves merely applying the riparian doctrine, which is prob­ ably quite similar in North Carolina and neighboring states, to resolve a dis­ pute between downstream riparian owners and an upstream North Carolina diverter. If the suit were brought in North Carolina by out-of-staters, the starting point for analysis would presumably be North Carolina law. It might then be appro­ priate to inquire whether North Carolina and the neighboring state follow the material injury test or not. Whether a divergence between the two states would matter is not clear. Another possibility involves resolution of any controversy by a lawsuit between the two states. Under Article III of the United States Constitution, the only court where a suit between two or more states can be heard is in the Supreme Court of the United States. These are "original actions" from which, of course, no appeal lies. A number of famous original actions have been litigated in the Supreme Court involving water rights. Among these have been suits between New Jers.ey, New York, and Pennsylvania concerning the Delaware River; suits involving the Great Lakes; and a suit between Arizona and California over the use of the Lower Colorado River. One state may sue another to enforce its own rights or the rights of its citizens, but the rules governing such suits are somewhat different from those governing ordinary lawsuits. For example, a state will not be allowed to ob­ tain damages in such a suit on behalf of its citizens (i.e., to act as a col­ lection agency). The technical reason for this is that the Eleventh Amendment to the Constitution prohibits the federal courts from entertaining claims by citizens of one state against another state government. Also, it is more dif ­ ficult to obtain injunctive relief in such a suit than in the ordinary case; the burden of proof to justify such injunctive relief is somewhat heavier than usual. 188 In cases involving water rights, the Supreme Court has developed a special set of rules for resolving controversies between states, known as the doctrine of "equitable apportionment." The need for this special set of rules lies in the fact that there is no federal law of water rights, and the various state laws on the subject differ from one another in many respects. Indeed, it is more likely than not that the states find themselves in the Supreme Court because of some difference in their laws or policies which impede the resolution of their dispute. The Supreme Court first announced the principle of equitable appor­ tionment in a suit between one state following the riparian rights doctrine and another state following the prior appropriation doctrine, but equitable appor­ tionment has been applied subsequently as between states both of which adhere to riparian rights or prior appropriation principles. Under the doctrine of equitable apportionment, the Supreme Court on a case-by­ case basis attempts to apportion the flow of an interstate stream on a fair and equitable basis between the states in controversy. The Court may look to the principles of existing riparian rights or appropriation law to help decide the case, or it may not. There are no strict, hard and fast rules of priority. FOOTNOTES 1. Cook v. Mebane, 191 N.C. 1, 131 S.E. 407 (1926); Smith v. Morgantown, 187 N.C. 801, 123 S.E. 88 (1924); Geer v. Durham Water Co., 127 N.C. 349, 37 S.E. 474 (1900). 2. Pernell v. Henderson, 220 N.C. 79, 81, 16 S.E. 2d 449 (1941); 222 N.C. 93, 21 S.E. 2d 902 (1942). 3. See, Marquis, Freeman, and Heath, "The Movement for New Water Rights Laws in the Tennessee Valley States," 23 Tennessee Law Review 797, 813 (1955). 4. Young v. City of Asheville, 241 N.C. 618, 86 S.E. 2d 408 (1955). 5. Note, 34 North Carolina Law Review 247, "Real Property--Riparian Rights" (1956). 6. Ellis, "Some Legal Aspects of Water Use in North Carolina," David Haber and Stephen W. Bergen, The Law of Water Allocation in the Eastern United States, (Conservation Foundation, 1956), p. 211. 7. Pernell, supra, note 2. 8. See, 78 Am. Jur. 2d, Waters section 290, n. 1, 3, 4. 189 9. Cook, Smith, Geer, supra, note 1. 10. Harris v. The Norfolk and Western Railway Company, 153 N.C. 442, 445, 69 S.E. 623 (1910). 11. Aycock, "Introduction to Water Use Law in North Carolina," 46 North Caro­ lina Law Review 1, 8 (1967). 12. See, text at notes 35-39, 47-51 infra. 13. Smith, supra, note 1. 14. Cook, supra, note 1. 15. Geer, supra, note 1. 16. Aycock, supra, note 11, pp. 8-9. 17. Geer, supra, note 1, p. 354 . . 18. See, e.g., Tucker and Carter Rope Co. v. Southern Alwninwn Co., 165 N.C. 572, 81 S.E. 771 (1914); Eason v. Perkins, 17 N.C. 38 (1831). But cf. Veazie v. City of Durfzam,_ 232 N.C. 744, 59 S.E. 2d 429 (1950). 19. Veazie, supra, note 18. 20. Formerly N.C. G.S. 130-117, now N.C. G.S. 130-165. 21. City of Kings Mountain v. Goforth, 283 N.C. 316, 196 S.E. 2d 231 (1973). 22. Pernell, supra, note 2; Smith, supra, note 1. 23. Cf. Purcellville v. Potts, 179 Va. 514, 19 S.E. 2d 700 .(1942); Ulbricht v. EufaZa Water Co., 86 Ala. 587, 6 So. 78 (1889). 24. Geer, supra, note 1. 25. Literally, the Act requires the approval of the now defunct Board of Water Commissioners, or "The board, body or commission succeeding to [its] prin­ cipal functions." (N.C. G.S. 162A-2(2)). These functions have been passed along, successively, to the Board of Water Resources, thence to the Board of Water and Air Resources, and finally to the Environmental Manage­ ment Commission. Accordingly, · all ref.erences in this section will be simply to the Environmental Management Commission. 26. N.C. G.S. 162A-7. 27. N.C. G.S. 162A-18. 28. N.C. G.S. 162A-7(c). 29. The Session Laws of 1961, ch. 1001. The 1961 legislation is now codified 190 in Parts 1 and 2 of Article 15 of N.C. G.S. Chapter 153A (N.C. G.S. 153A- 274 to 163A-288) and in N.C. G.S. Chapter 160A, Article 20, Part I (N.C. G. S. 160A-460 to 160A-465). 30. Milton Heath and W.J. Wicker, "Water Resources Legislation," Popular Government, Vol. 28, No. 1-2, Sept.-Oct., 1961, pp. 23-23. 31. N.C. G.S. 153A-285. 32. N.C. G.S. 153A-287. 33. N.C. G.S. 153A-286. 34. Although Section 7 is not now carried in the recodification of N.C. G.S. Chapter 153A in 1974 Replacement Volume 3C, it was carried in the original codification, as N.C. G.S. 153-290 of the 1964 Replacement Volume 3C. And present N.C. G.S. 153A-2 provides that Chapter 153A was intended to be the same in substance as the laws previously in force, and are intended to continue those laws in effect and not be new enactments. 35. N.C. G.S. 153A-300 to 153A-308. 36. Sess. 1. 1977, Ch. 466. 37. N.C. G.S. 130-123 to 130-156.4. 38. N. C. ·G. S. 162A-31 to 162A-58. 39. N.C. G.S. 130-128(5). 40. Report of the Legislative Research Commission to the General Assembly: "Local and Regional Water Supplies," Nov., 1970, Raleigh, N.C., p. 12. 41. See, text at note 47, infra. 42. H 330 - Iden. S 187. 43. H 971. 44. N. C. G.S. 143-215.13 et seq. 45. N. C. G.S. 143-215.14(a)(4) and 143-215.lS(c). 46. N. C. G.S. 143-215.22. 47. N. C. G. S. 143-215.44 et seq. 48. Legislative Research Commission, Report to the 19?1 General Assembly Con­ cerning Rights of Withdrawal, of Impounded Water, (1970), p. 7. 49. N.C. G.S. 143-215.47. 191 50. Legislative Research CoDDnission, supra, note 48, p. 21. 51. N. C. G. S. 143-215.48. 52. N. C. G. S. 143-215.23 et seq. 53. N. C. G. S. 143-215.28(a). 54. N. C. G.S. 143-215.25(4). 55. 16 u.s.c. 1001 et seq. 56. N. C. G. S. 143-354(b) and (c). 57. N. C. G.S. 143-354(c)(l). 58. N. C. G.S. 139-18(b)(l) and 139-4l(a). 59. N. C. Sess. L. 1959, Ch. 308, · section 7. 60. N. C. G. S. Ch. 153, Art. 24. 61. N. C. G.S. 87-83 to 87-96. 62. N. C. G.S. Ch. 130, Article 13. 63. Popular Government (Oct., 1967)' p. 42. 64. Maloney, Plager, and Baldwin, Water Law and Administration: The Florida Exper~enee (University of Florida Press, Gainesville, 1968), section 71.4, p. 200. 65. Milton S. Heath, Jr., Contemporary ·Eastern Water Rights Regulation (Insti- tute of Government, Chapel Hill, 1966), pp. 11-13~ · 66. Williamson v. Canal Co., 76 N.C. 478 (1876), 78 N.C. 156 (1877). 67. Robert Emmet Clark, Waters and Water Rights (Allen Smith Co., Indianapolis, 1976), section 615.l(b), volume 7, pp. 95-97. 68. Id., volume 7, p. 92. 69. 33 u.s.c. 1344. 70. 42 u. s. c. 4321 et seq. 71. 16 u. s. c. 79l(a) et seq. 72. 42 u. s. c. 4011 et seq. 73. 42 u. s. c. 300(f) et seq. 192 74. 16 U.S.C. 1531 et seq. 75. 16 U.S.C. 1271 et seq. 76. N.C. G.S. 113A-l et seq. 77. N.C. G.S. 113A-30 et seq. 193 THE ADMINISTRATIVE SYSTEM FOR WATER MANAGEMENT INCLUDING WATER ALLOCATION IN NORTH CAROLINA Maynard M. Hufschmidt Professor Department of City and Regional Planning University of North Carolina Chapel Hill, North Carolina with the assistance of Patricia Stevens Research Assistant Department of City and Regional Planning University of North Carolina Chapel Hill, North Carolina INTRODUCTION The discussion of water allocation issues presented in this paper is set in the broad context of North Carolina water management, including the overall admin­ istrative structure, the water resource purposes or elements covered, the per­ mit procedures, water allocation standards and criteria, regulation and en­ forcement mechanisms, and planning and policy development. Within this broad framework, specific emphasis is placed on the existing admintstrative and man­ agement structure for allocation of surface and ground waters, and the major problems and issues faced by the state in making water allocation decisions. This paper is a companion piece to the paler by Milton Heath on North Caro­ lina's legal system for water allocation. Accordingly, the legal basis for the North Carolina administrative systems of water management is only briefly mentioned in this paper. THE LEGISLATIVE SETTING Currently, North Carolina has a fairly comprehensive set of laws dealing ,with most important aspects of water management. Legislation2 covers the fields of: 1. Water resources development, including water use management, water supply, small watersheds and drainage, and dam safety; 2. Water pollution control, involving both control over point sources and non-point source controls and incentives such as 194 those for erosion and sedimentation, oil pollution, pesticides, mining, agriculture, solid wastes, septic tanks, and stormwater management; and 3. Related water and Zand management~ including coastal zone manage­ ment, flood management, marine and freshwater fish and wildlife, water-based recreation, and scenic, historic and wild river man­ agement. Much of the legislation has been enacted or substantially revised since 1970. Especially in the field of water quality and coastal zone management, the laws have been patterned to be consistent with the basic federal legislation and administration for water pollution control and coastal zone management. Although fairly comprehensive in scope, the package of legislation has some important gaps. There is no comprehensive legislation dealing with state allo­ cation of surface and ground waters among competing uses. The "Capacity-Use Act" can be administratively invoked in designated areas when a crisis arises, but this procedure is only a partial answer. There is no consistent legisla-· tive basis for state cost-sharing with local units of government on federal­ state-)ocal, or state-local water resource projects •. State legislation dealing with non-point sources of pollution, urban storm drainage, and erosion-sedi­ mentation from agricultural and forestry activities is seriously deficient, especially from the point of view of effective control of pollution sources and excessive runoff. As might be expected, specific water resources legislation has been enacted in response to particular crises or to federal initiatives. There is no compre­ hensive, internally consistent code of state water legislation. However, many of our current water management difficulties and problems are traceable to de­ ficiencies in administration and financing of management activities, rather than to weaknesses in the laws. A few words of caution are appropriate here; in its last session, the General Assembly of North Carolina passed a "sunset" law which effectively repeals almost all environmental control legislation by July 1, 1983, with most such laws to be repealed by mid-1979 and mid-1981. Although the law establishes a procedure for evaluation of the need for and effectiveness of performance of the programs covered by the legislation, with a view toward re-enactment of needed legislation, there is danger that some vitally-important legislation now on the books may fail to be re-enacted or may be severely weakened. This un­ derscores the need for initiative on the part of the executive branch of state government on developing an overall water resource and environmental quality legislative package. OVERALL ADMINISTRATIVE STRUCTURE Since 1971, when North Carolina undertook a basic reorganization of its state administrative structure, the organization of the state's water and related land resources activities has been relatively simple and straightforward. Most water management functions--except for those primarily concerned with human 195 health--are carried out in the Department of Natural Resources and Connnunity Development (DNRCD). The Department of Human Resources is concerned with the health aspects of wat.er resources generally, and with domestic water supply and septic tank regulation, specifically. Other departments, such as Administra­ tion, Transportation, Agriculture, and Connnerce, are involved in water manage­ ment issues only to a minor degree. The first-line organizational structure for water resource management is shown in figure 1. Within DNRCD, most water management functions are under the Office of Natural Resources, headed by an Assistant Secretary. Of the five operating divisions reporting to this office, the Division of Environmental Management has the important responsibilities for water quality management, comprehensive water resource planning, and ground-water management. The Division of Marine Fish­ eries has management responsibility in coastal and estuarine waters, and the Division of Land Resources has purview over stream sedimentation, watershed planning, and dam safety. Certain water management functions are assigned to the Deputy Secretary of 'the Department, including administration of the Coastal Area Management Act, and certain policy and program planning functions relating to federal and state water developm~nt projects, such as Corps of Engineers reservoirs and, recent­ ly, the flood management program. These latter functions are assigned to an Office of Public Works, reporting to the D~puty Secretary. Basic policy for various aspects of water management are established by com­ missions composBd of citizens appointed by the Governor. Foremost among these is the Environmental Management Commission (EMC) which has purview over water quality and most aspects of water quantity management that is subject to state control. Other commissions include the Coastal Resources Connnission, with pur­ view over the Coastal Area Management Act; the Sedimentation Control Commis­ sion, with purview over the state sedimentation control law; the Soil and Water Conservation Commission, with purview over the small watershed program and other agriculturally-oriented soil and water conservation activities; and the Marine Fisheries Commission, with purview over marine fisheries. Each of these commissions has access to staff resources from DNRCD. In some cases, such as the Coastal Resources Commission, the staff was created specifically to help in administering the Coastal Area Management Act. However, all staff services to these connnissions are under the administrative direction of the Secretary of Natural Resources and Connnunity Development. An exception is the Wildlife Resources Commission which has purview over wild­ life and inland fisheries. This Commission makes policy and directs its own staff independently of the Secretary of the DNRCD. The organizational struc­ ture of water resource management within DNRCD is shown in figure 2. THE WATER RESOURCE MANAGEMENT PROCESS The water resource management process can be viewed as beginning with a spe­ cific water-resource or water-related program or problem area mandated by state. legislation, e.g., water pollution control, or coastal zone management, under the policy and administrative control of one or more state agencies. Manage- 196 f- ' \. 0 - . . . J I D ep ar tm en t o f A gr ic ul tu re P es ti ci de c o n tr o l. F ig ur e 1 " FI R ST -L EV EL " OR GA NI ZA TI ON AL S TR UC TU RE F OR N OR TH C AR OL IN A ST AT E W AT ER R ES OU RC E M AN AG EM EN T ~ D ep ar tm en t o f Co nn ne rc e U ti li ti es C om m is ­ s io n , r e gu la ­ ti o n o f e le c­ tr ic p ow er & p ri v at e w a te r s u pp ly u ti li ­ ti es . G ov er no r's O ff ic e D ep ar tm en t o f N at ur al R es ou rc es & C om m un ity D ev el op m en t W at er r e s o u rc e pl an ni ng & p ol ic y W at er q u al it y m a n a ge m en t Fl oo d m a n a ge m en t C oa st al z o n e m a n a ge m en t Se di m en ta ti on c o n tr o l A ll oc at io n o f s u r f a c e & gr ou nd w a te rs G ro un d w a te r s u rv e ys F is h & w il d li fe m a n a ge ­ m e n t- -m ar in e & f re sh ­ w a te r. 1 D ep ar tm en t o f A dm in is tr at io n S ea -g ra nt r e s e a rc h pr og ra m O pe ra ti on o f s ta te ­ o w n ed m a ri ne la bo ra to ry . I D ep ar tm en t o f H um an R es ou rc es D ep ar tm en t o f T ra ns po rt at io n C om m un ity w a te r s u p p li es ; se w ­ a ge d is po sa l by s e p ti c ta n ks ; s o li d w a s te m a n a ge ­ m e n t; v e c to r c o n tr o l. D ev el op m en t & m a n a ge m en t o f s ta te p o rt s. . . . . . . . . l.D 00 W il dl if e R es ou rc es C om m is si on ~ 0 ...... . . I-' • n '- <: R"> > 0.. . s I-'· ::s I-' · U'J r t l'i !)) r t I-' • 0 ::s W il dl if e Ga m e a n d fr es hw a­ te r fi sh r e gu la ­ ti o n W at er -b as ed r e c r e a ­ ti on E du ca ti on F ig ur e 2 OR GA NI ZA TI ON AL S TR UC TU RE F OR W AT ER A ND R EL AT ED L AN D RE SO UR CE M AN AG EM EN T, N .C . DE PA RT M EN T OF N AT UR AL R ES OU RC ES & C OM M UN IT Y DE VE LO PM EN T ~ 0 ...... . . I-' n '- <: l D iv is io n o f La nd R es ou rc es St re am s e di m en ta ti on c o n tr o l Sm al l w a te rs he d m a n - a ge m en t Da m s a fe ty M in in g a c ti v it ie s O il & g as e x pl or a- ti on J E nv ir on m en ta l C oa st al M an ag em en t S ec re ta ry R es ou rc es C om m is si on C om m is si on ~I I D ep ut y S ec re ta ry J ~I ~·1 ~ '- <: l 0 ..... . . . O ff ic e o f C oa st al I-' • n R es ou rc es '- <: R"> C oa st al z o n e :» m a n a ge m en t 0.. . El I-'• O ff ic e o f P ub li c ::s I-' · W or ks U'J r t Fl oo d m a n a ge m en t l'i !)) F ed er al /S ta te r t I-' · p ro je ct s 0 ::s A ss is ta n t S ec re ta ry A ss is ta nt S ec re ta ry fo r fo r Co m m un ity N at ur al R es ou rc es D ev el op m en t I ' I 1 1 ~ D iv is io n o f D iv is io n o f E nv ir on - D iv is io n o f Co m m un - M ar in e F is h er ie s m e n ta l M an ag em en t it y A ss is ta nc e C oa st al w e tl an ds W at er q u al it y m a n - L oc al p la nn in g p ro te ct io n a ge m en t a s s is ta nc e D re dg e & f il l r e - W at er u s e m a n a ge m en t F ed er al f lo od i n - gu la ti on W at er r e s o u rc e pl an - s u ra n c e pr og ra m M ar in e & e s tu a ri n e n in g Pr om ot io n o f s e a - fi sh & s h el lf is h G ro un dw at er m a n a ge - s ho re i nd us tr y & re s o u rc e s m e n t r e c r e a ti o n Im pa ct s o f n ew & e x pa nd ed i nd us tr y ~ 0 ..... . . . I-' · n '- <: _ !< "> > 0.. . El I-'· ::s I-' · en r t ti Al rt I-' • 0 ::s ment of the specific program then proceeds through the use of various action instruments, singly or in combination, to achieve the program objectives speci­ fied or implied in the legislation. These action instruments include 1. Direct development and/or management of state-owned water-related resources such as small harbors, beaches, wildlife preserves, parks and forests; 2. Regulation of private and local public planning, development and management activities affecting water resources, via permits or approval of management plans; 3. Financial incentives, including cost sharing, to local public agencies for planning and development of water resource projects, such as for water supply, wastewater treatment, and small water­ shed development for multiple purposes; 4. Technical help and provision of information to local public and private agencies and citizens on water resources matters; and 5. Water resource planning and collection and/or analysis of data needed for effective application of the other action instruments. In the field of water resource planning, the Water Resources Planning staff in DNRCD has prepared a Water Resources Framework Study, which contains a section on state water resources policy which has been reviewed and approved in concept by the various commissions. This policy section of the Study can be used to introduce new water resource policies and resolve differences in water resource policy among the various units of state government. A brief summary of the major water management programs of the state from this point of view follows. Water Pollution Control In recent years, the water pollution control program has been closely patterned after the federal program as authorized by the Federal Water Pollution Control Act Amendments of 1972 and administered by EPA. It includes the planning pro­ grams under section 201 (facility plans), section 303(e) (basin plans, includ­ ing identification of pollution sources, stream classifications, and quality conditions and existing and proposed treatment facilities), and section 208 (area-wide plans featuring non-point sources and overall implementation); the regulatory programs involving the federally-mandated NPDES permits on point sources discharging effluents into surface waters, which provide effective con­ trol over both private and public discharges, as well as regulation of septic tanks and other sewage disposal systems that do not discharge into surface waters; and the financial incentive programs, involving federal and state planning and construction grants to public agencies for sewage disposal and treatment facilities. In addition to the 75 percent federal planning and con­ struction grants to local agencies, the state provides 12 1/2 percent grants for these purposes. Overall policy control for the major share of water quality management is under 199 the Secretary of DNRCD and EMC. Day-to-day administration is the responsibil ­ ity of the Division of Environmental Management. The regulation of septic tank systems is the one element of water pollution control that is not completely under the Division of Environmental Management. This activity is shared with the Sanitation Branch of the Division of Health Services, Department of Human Resources. Septic tanks with capacity to handle flows of 3,000 gallons per day or more are under regulatory control of the Division of Environmental Man­ agement. A permit must be received from this Division before construction can proceed. Septic tanks with lesser capacity are under regulatory control of the Sanitation Branch. Permits for these facilities are obtained from the local (usually county) health departments, which follow minimum standards established by the Department of Human Resources. In its last session, the Legislature enacted a law empowering local boards of health to develop their own septic tank regulations, subject to approval of the Department of Human Resources. This legislation was a compromise between local pressures for greater local control over septic tank regulation and environmentalist pressures to maintain effective state control. In general, as would be expected from the great federal emphasis on water pol­ lution control since 1972, identification, monitoring, and regulation of major point sources of water pollution, public and private, are reasonably well in hand, and the NPDES permit system is working fairly effectively. The control of septic tank systems, especially the smaller ones, where the permits are handled by the local health departments, is much less effective. After much discussion, the Division of Environmental Management and the Sanitation Branch agreed on a set of joint regulations covering design and operation of septic tanks, which became effective in July, 1977. But there are many unresolved problems and questions concerning the design and use of septic tanks; the need for answers is great because of the important role that septic tanks play in the low-density pattern of urbanization so connnon in North Carolina. Knowledge of sources and effects of non-point pollution is scanty, and, except for the sedimentation control program, there is little effective control over such sources. The statewide section 208 planning study, as well as the Tri­ angle J and Asheville region areawide section 208 studies, represents a start on collection and analysis of data on non-point pollution sources and the develop­ ment of implementation strategies. But this program is only now well underway, and much must be learned about non-point sources before effective incentive and control programs can be developed. Related Water and Land Management The major state programs discussed under this heading are coastal area manage­ ment, flood management, sedimentation control, and the statewide land resources program developed under the Land Policy Act of 1974. Coastal Area Management. Management of water and related land resources of the coastal and estuarine area of North Carolina poses special problems, and the state management program has evolved in response to these. Prior to enactment of the Federal Coastal Zone Managemen~ Act in 1972 and the related North 200 Carolina Coastal Area Management (GAMA) in 1974, the state enacted legislation regulating dredging and filling in any estuarine waters, tidelands, marshlands, or state-owned lakes. A parallel federal development has been the evolution of dredge and fill regulations first under the Rivers and Harbors Act of 1899 and then under section 404 of the Federal Water Pollution Control Act Amendments of 1972. A coordinated dredge and fill permit system has evolved for the coastal area under which an applicant may file a single document with DNRCD which may ultimately lead to the following five separate permits: 1. State dredge and fill permits, processed by the Division of Ma­ rine Fisheries; 2. State NPDES permit, processed by the Division of Environmental Management; 3. State easement for use of state-owned bottoms, processed by the Department of Administration; 4. Federal section 404 dredge and fill in navigable waters permit, processed by the U.S. Army Corps of Engineers; and 5. Federal section 10 permit under the Rivers and Harbors Act of 1899 permit, processed by the U.S. Army Corps of Engineers. Since the enactment of GAMA in 1972,3 North Carolina has developed a coopera­ tive state-local program of coastal are~ management to protect coastal land and water reso~rces and provide for their orderly development and management. Three main mechanisms are provided in the Act to implement the program. These are land use plans, state designation of areas of environmental concern (AECs), and permits for development within AECs. Local land use plans are required and have been developed according to state guidelines and standards for the 20 counties in the coastal area. These land use plans are to serve as one criterion for evaluating permit applications for development in AECs. Designation of AECs and control of development within AECs are measures to pro­ tect environmentally sensitive areas. AECs include, among other areas, coastal wetlands and estuarine waters. The state is responsible for designat­ ing AECs and developing use standards to serve as criteria for guiding develop­ ment within the AECs. These steps have already been accomplished. The primary control mechanism is development permits for projects within AECs. Local governments issue permits for minor development, and the state issues permits for major projects. GAMA development permits are to be coordinated with existing permit controls and environmental permits. A long term goal o ~ GAMA is the unification or simplification of existing permits in the coastal area. The permitting operation under GAMA has just recently begun (March 1, 1978). The state administrative organization for GAMA consists of the Coastal Re­ sources Commission serving as a policy-making body; DNRCD serving in a staffing 201 and budgeting capacity; and the Coastal Resources Advisory Council serving as an advisory board on local issues. Flood Plain Management. The Floodway Regulation Law,4 enacted in 1971 and amended in 1973, provides some guidance for delineation of floodways and means for regulation of artificial obstructions in floodways. The purpose is to re­ duce loss of life, injuries, and property damage by controlling and minimizing the extent of floods through prevention of obstructions which inhibit water flow and increase flood height. The law provides an administrative mechanism which consists primarily of delineation of floodway~ and granting of permits for use of the floodway. Administration is provided by local governments which may request technical assistance from DNRCD or related federal agencies. EMC may delineate floodways in cases where stream floodways exceed the juris­ diction of a single local government or when local governments fail to delin­ eate the floodway. It may also adopt rules and regulations interpreting and applying the provisions of the law. It has not taken either of these actions to date. In spite of the Floodway Regulation Law, there is at present no state flood plain management program. This situation inhibits local government from ob­ taining guidance on flood problems and floodway regulation. There has been lack of implementation at the local level for this reason and ·also because no administrative regulations have been promulgated by EMC to interpret the law. There is need for regulations which define procedures and standards for a case­ by- case evaluation by local governments and describe the conditions which may be attached to approved applications. The state's main flood-related activity is coordination of the National Flood Insurance Program. The Community Assistance Division in DNRCD is currently charged with this . responsibility ·but has very limited resources to devote to this task. The need for a strong state flood plain management program became increasingly apparent as a result of the large amount of flood damage sustained by western North Carolina in November of 1977. In December of 1977, responsibility for developing an operational flood plain management program was given to the Pub­ lic Works Office located under the Deputy Secretary in DNRCD. Actual develop- ment and implementation of this program is currently pending the resolution of funding requests for program personnel. Overall administration of the flood management program is unresolved at this time. Sedimentation Control. The Sedimentation Pollution Control Law of 19735 estab­ lished a state program for the control of soil erosion and resulting stream sedimentation from non-agricultural, non-silvicultural,· and non-mining activ­ ities. The l aw provides for a system of state standards, and local ordinances and programs as the main mechanism for erosion control. An erosion and sedi­ mentation control plan must be filed with the state or the local government having jurisdiction before any land-disturbing activity can take place. An 11- member Sedimentation Control ·commission establishes basic policy and 202 adopts necessary rules and regulations. Administration of the program is in DNRCD's Division of Land Resources. A small staff handles the detailed admin­ istration. The effectiveness of the program has been limited by the inadequate resources provided by the state to implement the Act, by the limited scope of the Act (all agriculture, forestry, and mining activities are exempt), and by the slow­ ness of local governments to adopt local administration of the Act, leaving a heavy burden of administration on a small state staff. Nonetheless, the pro­ gram is under vigorous state leadership, and the lessons being learned in im­ plementing this first step toward comprehensive sedimentation control will be useful for the future when more extensive programs become possible. Statewide Land Policy. In 1974, the General Assembly enacted the Land Policy Act, with the objective of developing a statewide land policy to "serve as a guide for decision-making in state and federally-assisted programs which affect land use, and [to] provide .a framework for the development of land use policies and programs by local governments." The North Carolina Land Policy Council established under the Act has prepared a set of proposed policies which were published in December, 1976, as "A Land Resources Program for North Carolina." These proposals, which represent a carefully prepared set of policy, substance, and organizational recommendations, included a recommendation that the General Assembly enact a statewide land classification system. The specific proposals in the program had been carefully coordinated with the North Carolina Water Resources Framework Study, which was being completed at about the same time as the land resources program, and good consistency between the policy recommendations of the two documents was achieved. The General Assembly took no action on the Council's land resources program in the 1977 session; thus the issue of statewide land policy remains unresolved. WATER QUANTITY MANAGEMENT Traditionally water use management in eastern states has been subject to the common law doctrine of riparian rights which determines water use rights ac­ cording to ownership of land bordering streams. North Carolina follows the "reasonable use rule" of riparian rights which gives landowners bordering a watercourse the right to use the water of a stream as long as that use is not inconsistent with the rights of other riparian owners to reasonably use and enjoy the same waters. In the case of ground water, water use rights are determined by overlying ownership of land and reasonable use of the land it ­ self. The main limitations on the water use are that the water is not to be used at a place other than the overlying land; the business involved must be reasonable use of the land; and the amount of water used must be reasonable as compared to like businesses. Reasonableness in cases of both surface and ground-water use is determined on a case-by-case basis by the courts in the event there is a conflict among u~ers. Gaps and deficiencies in the riparian rights system have prompted many eastern states to modify or supplement the riparian doctrine to supply the management 203 mechanisms necessary for proper control of water uses. As reviewed in the com­ panion paper by Milton Heath, North Carolina has adopted several statutes for this purpose.6 The most important of these with respect to the direct control of water use is the Water Use Act of 1967. This Act is the most important source of statutory standards and criteria for water allocation in North Caro­ lina. Water Use Act of 1967 The Water Use Act (WUA) was adopted and implemented in response to a saltwater encr.oachment problem caused by dewatering processes of North Carolina coastal area phosphate mines. The Act authorizes EMC to declare "Capacity Use Areas" (CUAs) where it finds the following conditions: the aggregate uses of ground water or surface water, or both, in or affecting said area (i) have developed or threatened to develop to a degree which requires coordina­ tion and regulation, or (ii) exceed or threatened to ex­ ceed, or otherwise threaten or impair, the nenewal or replenishment of such waters or any part of them.7 The main control mechanism is a water use requirement for anyo.ne withdrawing, obtaining, or using surface waters or ground waters or both in excess of 100,000 gallons per day. EMC may formulate other controls through . regulations. These may include mandatory water use reports, timin.g of withdrawals, provi­ sions for protection against saltwater encroachment, provisions for protection against unreasonable adverse effects on other water users, well-spacing, and prescribed pumping levels and pumping rates. Also, the regulations estab­ lished for the single CUA that has beert established under WUA stipulate that approval · must be 'feceived from the Commission for works which "may significant­ ly affect the quantity of water resources.a Such works include: 1. Surface drainage projects, 2. Subsurface drainage projects, 3. Well mining, and 4. Excavation projects. The broad criteria in WUA and supporting regulations with respect to the basic objectives include provisions that water resources are to be put to beneficial use to the fullest extent to which they are capable, that water resources are to be conserved (e.g., not wasted or depleted to no good end); and that condi­ tions are to be maintained that are conducive to orderly development and bene­ ficial use of the water resources. With respect to criteria for declaring a CUA, there must exist or be impending a generalized condition of water deple­ tion or water pollution within the area to the extent (1) that the availability or fitness for use of such waters has been impaired for existing or proposed uses and (2) that injury to the public health, safety, and welfare would result if increased or additional withdrawals or discharges occur. 204 The law provides the following specific technical and administrative criteria that must be ·considered in developing regulations and granting water use per­ mits: In adopting any regulations pursuant to the provisions of GS 143-215.14 and i~ considering permit applications, revo­ cations or modifications under this section, the Environ­ mental Management Connnission shall consider: 1. The number of persons using an aquifer or stream and the object, extent and necessity of their respective withdrawals or uses; 2. The nature and size of the stream or aquifer; 3. The physical and chemical nature of any impairment of the aquifer or stream, adversely affecting its avail ­ ability or fitness for other water uses (including public use); 4. The probable severity and duration of such impairment under foreseeable conditions; 5. The injury to public health, safety or welfare which would result if such impairment were not prevented or abated; 6. The kinds of businesses or activities to which the various uses are related; 7. The importance and necessity of the uses claimed by permit applicants (under this section), or of the water uses of the area (under G.S. 143-215.14) and the extent of any injury or detriment caused or expected to be caused to other water uses (including public use); 8. Diversion from or reduction of flows in other water­ courses or aquifers; and 9. Any other relevant factors.9 In any case where a permit applicant can prove to the En­ vironmental Management Commission's satisfaction that the applicant was withdrawing or using water prior to the date of declaration of a capacity use area, the Environmental Management Commission shall take into consideration the extent to which such prior use or withdrawal was reason­ ably necessary in the judgment of the Environmental Man­ agement Commission to meet its needs, and shall grant a permit which shall meet ' those reasonable needs. Provided, however, that the granting of such permit shall not have unreasonably adverse effects upon other water uses in the 205 area, including public use, and including potential as well as present use. The Environmental Management Commission shall also take into consideration in the granting of any permit the prior investment of any person in lands, and plans for the usage of water in connection with such lands which plans have been submitted to the Environmental Management Commission within a reasonable time after June 27, 1967. Provided, however, that the granting of such permit shall not have unreasonably adverse effects upon other water uses in the area, including gublic use, and including potential as well as present use.l Implementation of WUA. The first and only CUA to date was established in 1968 after detailed study, numerous discussions, and appropriate hearings. The site includes all of Beaufort, Pamlico, and Washington Counties and part of Car­ teret, Craven, Hyde, Martin, and Tyrrell Counties, covering a total land area of more than 2,500 square miles. The main source of water supply in this area is ground water. Regulations for CUA No. 1 were adopted by EMC in June, 1969, and are applicable to "all persons who withdraw, obtain or utilize water within the designated area. 1111 For withdrawals in excess of 100,000 but less than one million gal­ lons per day, the regulations require a water use ·permit. If constructing a well is involved, a well construction permit is required. It should be noted here that, although the regulations were designed for CUA No. 1, they could as well be applied to any similar area in the coastal zone. EMC controls wate~ withdrawals and water levels mainly through the permit proc­ ess. It must include withdrawal limits in the permits but may include several · other provisions such as withdrawal rates, maximum drawdown levels, ·require- ·ments for water conservation, locations of surface intakes and wells, return of withdrawn water to the source, metering, and observation stations or wells. The regulations also require water use reports. Withdrawals in excess of one million gallons per day are subject to basically the same provisions, with a greater level of detail required in water use reports. In implementing CUA No. i, 20 ground-water permits and several surface water permits have been issued. The Ground-Water Section of the Div.ision of Environ­ mental Management, DNRCD has been the main agency involved in evaluating water use in CUA No. 1 because of the nature of the source of supply. In a recent publication of this section, dissatisfaction was expressed with the manner in which the law has been implemented. The report states: Although the. Capacity Use Area was established and regula­ tions applicable to water development and use became ef­ fective more than seven years ago, no real water management measures have been implemented. No user has been required to reduce withdrawals, initiate recharge, conduct water conservation measures such as recycling process water, or 206 take any other possible measures to affect water resource management. The only requirements that have been imposed upon water users have been of a monitoring and reporting nature.12 Thus, the main accomplishment of WUA has been to allow the state to discover the impact of differing water uses and to accumulate infonnation on existing uses. There has been no actual limitation of water use and only token enforce­ ment against non-reporting users. The reasons for inadequate regulation of water use in CUA No. 1 appear to include misunderstandings regarding what WUA allows, inadequate clarification of WUA in the regulations, lack of an adequate information base to vigorously enforce regulations, and lack of an adequate staff with well defined responsibilities for aggressive implementation of WUA. The Texasgulf-NCP Case. Several major inadequacies in the permit system became apparent during a 1976 conflict between the state and Texasgulf Corporation. Since 1969, Texasgulf has had permits to withdraw 67 MGD from the Castle Hayne aquifer. In 1976, North Carolina Phosphate Company applied for a water use permit to withdraw 45 MGD from the same source. The state felt that to in­ crease the total withdrawals to 112 MGD would be deleterious to the aquifer. In order to protect the aquifer and accommodate North Carolina Phosphate, an attempt was made to reduce Texasgulf's allocation through a permit revision. The result was litigation by Texasgulf against the state and an eventual out­ of-court settlement that allowed Texasgulf to retain its allowance for 67 MGD. North Carolina Phosphate Company was given a .permit for 35 MGD. The first problem is a question regarding a taking of private property in the form of. water rights without due process of law and just compensation. Texas­ gulf felt that EMC was violating due process and compensation by attempting to reduce its water allocation. WUA gives little guidance on the question. It -provides that EMC must consider reasonable needs and investments in granting permits to users withdrawing water prior to the date of declaration of a CUA.13 However, WUA does not address the question of due process or compensation in the case where a user must reduce or discontinue withdrawals. This issue was not resolved in the Texasgulf ·case and is likely to be a problem in the future. The second difficulty with WUA is that the permit system has not functioned well as a continuous program. The law is written in terms of permitting uses that exist at the time of the capacity use declaration, and no guidance is given for resolving conflicts that arise from future users. Because of this lack of guidelines, a permittee appears to have no security in his use of the water as against later applicants. In addition, there are no standards in WUA for priority among competing users, and the law lacks any guidelines to follow in times of drought.14 The lack of such standards and guidelines has caused public concern that designation of a CUA subjects the allocation of water to severe interest-group pressures. Without the addition of standards and guide­ lines for resolving conflicts among competing users, WUA will generate lawsuits similar to that brought against the state by Texasgulf. Also brought out in the Texasgulf-North Carolina Phosphate case was the absence of known departmental policy, any known delineation of functional responsibil- 207 ity, or any known organizational procedures. During this case, there was much confusion over how the North Carolina Phosphate application should be evaluated and who was responsible for doing it. The case emphasized DNRCD's need for (1) a statement of departmental policy, (2) definite assignments of responsibili ­ ties, and (3) clear guidelines for organizational procedures. The main prob­ lem illustrated by the Texasgulf case is the need for funds and staff to inves­ tigate water requirements of users and effects of water use on supply sources. Since WUA was first implemented, the state has had to rely on the companies' own information regarding water needs and has been in no position to prove that the water use was unreasonable or to enforce any water restrictions. Because of this, there has been no emphasis on restricting water use to minimal needs, and many users may have been allocated more water than necessary. Also, be­ cause of lack of data, the state does not have firm evidence to predict at which point, both in time and location, detrimental ·effects from pumping water would be observed in the Castle Hayne aquifer. This causes difficulty in sub­ stantiating state-imposed limits on withdrawals. The First Colony Farms Case. The second occasion on which EMC encountered dif­ ficulties with administration of WUA was in 1976. At this time, First Colony Farms, a large "super farm" located in CUA No. 1 in Washington, Tyrrell, and Dare Counties, was considering ways to drain and lower the water table of a large tract of land. Members of DNRCD were concerned with the effect this would have on the aquifer and surrounding water supply system. Thus, WUA was considered for use as a control tool. Some officials of DNRCD took the view that if the farm used ground-water pumping to lower the water table, it could be regulated under the Act, but if a canal system was used, this might not fall under the Act's jurisdiction. Thus, WUA is not clear as to what types of water use are applicable. The law states that it applies to anyone who withdraws, obtains, or uses surface water or ground waters or both,15 but some members of DNRCD believe that this lan- · guage is too broad to be a useful guide. To help remedy this situation, a pro­ vision was added in February, 1976, to the regulatio~s for CUA No. 1. 16 The section describes four types of projects that need approval by EMC, including surface drainage projects, subsurface drainage projects, well mining projects, and excavation projects for underwater land. Although the issue was resolved in the case by issuance of a water use permit to First Colony Farms for surface drainage, it is unclear to what degree EMC can regulate surface drainage proj­ ects because the permit system set up in WUA is not readily applicable to such projects. The Yadkin Case. Another opportunity EMC has had to employ the WUA occurred in 1976. At this time concern was mounting regarding present and future demands on the Yadkin River. Many citizens felt that the proposed Duke Power Company Perkins nuclear power plant's consumptive use of water would reduce already low water levels. In order to review the situation, EMC stated an intent to de­ clare the Yadkin River a CUA and instructed the Division of Environmental Man­ agement to investigate the situation. After the appropriate public hearings, EMC decided both against declaring a CUA and against issuing orders.17 Al­ though a CUA was not declared, this incident uncovered several important ques­ tions regarding administration of WUA. 208 One asserted deficiency of WUA that is likely to impede protection of water re­ sources is the law's lack of description for situations in which EMC must declare a CUA. Improved technical standards that serve as prerequisites for a CUA declaration could better guide the administrators of the law. This would reduce the role of interest group pressures in what should be primarily a tech­ nical decision based upon the relation of water supply and demand. Misunderstandings regarding the effect of the law on interbasin transfers have caused some concern. The Attorney General addressed this problem as follows: As a practical matter, it would be very unlikely that the Commission would allow the . transfer of water from a capac~ ity use area to another river basin since the declaration of a capacity use area is usually indicative of water sup­ ply or management problems within the area so designated . • . it is my opinion that the Capacity Use Act would not permit the Environmental Management Commission to allow interbasin transfers if th.ey are now prohibited.18 As Milton Heath has pointed out in his companion paper, the question of whether or not interbasin transfers are allowed under North Carolina law has not yet been resolved. This issue needs to be clarified before sound water management can proceed. Another major problem with WUA is the lack of controls to regulate streamflows, lake levels, and minimum releases from impoundments. Consumptive water uses are growing at ever-increasing rates. The effect that these consumptive uses may have on streams during periods of low flow is an especially important issue in water use control. Increased consumptive uses will cause flows in many streams to be depleted during period~ of dry weather to such an extent that in­ stream uses such as waste assimilation, fisheries, boating, aesthetics, and water supply may be adversely affected. Presently it is held that EMC can only regulate lake levels and minimum stream­ flows through the issuance of water wit~drawal permits, and only then in areas designated as CUAs. This control is not adequate to regulate stream and lake levels, for there is need to control water releases from lakes and reservoirs as well as withdrawals. The Dam Safety Act does require maintenance of minimum stream flows for maintaining stream classifications and standards for water quality, but this Act applies only to privately built dams, and has many excep­ tions. In no sense is the Act adequate as a general water release control measure. Laws providing for lake level management, stream regulation and wa­ tercourse modification are needed in addition to the withdrawal controls al ­ ready provided in WUA for an effective program of water resources management. The Yadkin River experience illustrates the difficulty WUA has in regulating very large consumptive users such as electric power plants. Merely limiting water withdrawals is not always the most efficient method to solve water-short situations. In the case of a large power plant, low flow augmentation via stored water is an additional method that might be imposed on the utility. WUA cannot require such additional measures. However, this problem can be overcome when dealing with publicly controlled utilities because DNRCD can 209 persuade the Utilities Commission to require other control measures through the Certificate of Public Convenience and Necessity. The problem is more signifi ­ cant for large water users other than publicly controlled utilities such as industries or large agricultural users. The last two major problems faced in applying WUA to the Yadkin River Basin were (1) lack of staff to implement the Act and (2) unknown effects of ripar­ ian rights on the law. CUA No. 1 up to this point has only regulated ground water, and the Ground-Water Section of the Division of Enviro'nmental Management is res.ponsible for evaluating water use in the area. If the Yadkin had been declared a CUA, there would have been no similarly suitable staff for evaluat­ ing the surface water area. There is a definite lack of adequate staff to carry out the surface water aspects of the Act. The second problem arises because of the following provision of WUA: Nothing contained in this part shall change or modify existing common or statutory law with respect to the rela­ tive rights of riparian owners concerning the use of sur­ face water in this State.19 This section appears to present a conflict with the intent of WUA to control water use. Several administrators believe that this section will void the impact of the Act if it is applied to surface water and that ~t must be deleted before the law can be successful. The Attorney General's opinion on the matter is as follows: The key word in this section is "relative." The Capacity Use Act in its declaration of policy and throughout its con­ tents clearly contemplates the regulation of water use as to quantity. It is my opinion that the Capacity Use Act af­ fects the riparian rights doctrine at least to the extent that it gives the EMC the authority to determine rules of reasonable water use among riparian owners who consumptively use the water. The basic riparian right to reasonable use of water to which his property is rip~rian would not be al ­ tered. The difference would be that the EMC, through its rules and regulations, would be able to make and enforce decisions on what constitutes a reasonable use by riparian owners. Without capacity use status, riparian owners could simply use water until a lower riparian owner claimed injury, at which time the dispute was settled in the courts.20 The issue is still unresolved and will definitely be the source of dispute in the future. The Sandhills Capacity Use Study. The state is currently undertaking a CUA investigation for the Sandhills area in Moore County where projected water demands for Southern Pines, Aberdeen, and Pinehurst appear to raise questions of adequacy of surface supplies. Questions needing to be resolved include the following: How will proposed withdrawals from streams affect low flows and downstream water supply needs? How will they affect the assimilative capac- 210 ity of a stream which accepts the discharge of a regional wastewater treat­ ment plant? What ground-water resources are available and to what extent could they be used to meet projected needs? In this case, questions of possible con­ junctive use of surface and ground water appear to be important. In sunnnary, it is clear that North Carolina's attempt to deal with its emerging water allocation problems through the capacity-use designation approach is fraught with problems. Although there are some important unresolved legal is ­ sues, many of the problems arise because of inadequate administration of WUA and related acts. As indicated in the Texasgulf, First Colony Farms, and Yad­ kin River cases, each capacity-use situation is unique, and the treatment by the state was ad hoc and characterized by confusion and delays. It appears clear that major improvements are needed in the administration of existing legislation on water allocation. Interstate Water Problems Until recently, North Carolina has been fortunate in that there have been few serious water resource differences with adjacent states. The issue of a pro­ posed hydroelectric project on the New River, affecting Allegheny County, North Carolina, and involving Virginia and North Carolina, has been resolved by Con­ gressional action designating that reach of the r~ver as a Wild and Scenic Stream. A serious current issue between Virginia and North Carolina relates to proposals in Southeast Virginia to tap the surface and ground-water resources in the Chowan Basin, ~n part for domestic water supply use in the Norfolk­ Hampton Roads metropolitan complex. An informal North Carolina-Virginia Water Resources Management Connnittee was established to identify the issues and con­ sider alternative ways of resolving current and emerging conflicts. Until recently, this Commission has been inactive, but DNRCD is now taking steps to re-activate the Commission, in order that progress can be made on resolving outstanding issues. Water Conservation North Carolina has no well-defined statewide water conservation program. Re­ cent drought experiences and domestic water shortages in some sections of the state have highlighted the need for more emphasis on water conservation. Sup­ porting this need is the increasing unit costs of developing additional water supplies, plus the increased emphasis that the federal government is now giving to water conservation as part of a new national water policy. EMC has recently taken steps to encourage water conservation by local governments by proposing that a water conservation criterion be added to the basis for allocating state grants for waste-treatment facilities. However, there is no single administra­ tive unit at the state level which is charged with the responsibility of pro­ moting water conservation. Figure 3 provides a summary of the major water and related land resource activ­ ities that involve some form of state-authorized regulations. 211 N t- i N Pr og ra m a n d A ct iv it y W at er R es ou rc es D ev el op m en t W at er U se C on tr ol W el l C on st ru ct io n Da m S af et y W at er S up pl y- ­ H ea l t h R el at ed P ri va te S up pl ie s P ub li c W at er S up ­ p li es W at er a n d La nd P o ll ut io n C on tr ol W at er Q ua lit y S ur fa ce w a te rs d is ­ c ha rg e Fi gu re 3 W AT ER R ES OU RC E M AN AG EM EN T M EA SU RE S, ST AT E OF N OR TH C AR OL IN A P ol ic y M ak in g B od y E nv ir on m en ta l M an ag e­ m e n t C om m is si on E nv ir on m en ta l M an ag e­ m e n t C om m is si on E nv ir on m en ta l M an ag e­ m e n t C om m is si on C om m is si on f or H ea lt h S er vi ce s C om m is si on f or H ea lt h S er vi ce s E nv ir on m en ta l M an ag e­ m e n t C om m is si on D et ai le d A dm in is tr at io n M an ag em en t T oo l L eg al C it at io n DN RC D: E nv ir on m en ta l M gt . W at er u s e pe rm it s GS 14 3- 21 5. 11 Di vi si on /G ro un d- w~ te r in c a pa ci ty u s e S ec ti on a re a s DN RC D: E nv ir on m en ta l M gt . W el l c o n s tr u c ti on GS 87 .8 8 D iv is io n/ G ro un d- w at er pe rm it s S ec ti on DN RC D: D iv . o f L an d R e­ s o u rc e s /L an d Q ua lit y S ec ti on P er m it t o c o n s tr u c t GS 1 43 -2 15 .3 0 o r a lt er p ri v at e DH R: D iv . o f H ea lt h S er ­ v ic es /S an it ar y E ng i­ n e e ri ng S ec t. pl us lo ca l he al th d ep ar tm en ts DH R: D iv . o f H ea lt h S er ­ v ic es /S an it ar y E ng i­ n e e ri ng S ec t. da m s ; m in im um s tr ea m f lo w r e - qu ir em en ts m ay b e in cl ud ed S ta te s a n it at io n s ta n da rd s/ lo ca l a pp ro va ls A pp ro va l o f pl an s DN RC D: D iv . o f E nv ir on - NP DE S P er m it s m e n ta l M gt ./ W at er Q ua l- it y S ec ti on GS 13 0- 9 GS 1 30 -1 61 t o 16 1. 1 GS 14 3- 21 5. 1 N I- ' w Pr og ra m a n d A ct iv it y D is ch ar ge n o t in to s u r f a c e w a te rs (s ep tic t an ks o v e r 3 , 00 0 g al .) S ep ti c ta n ks u n de r 3 , 00 0 ga l. S ol id W as te D is po sa l S an it at io n o f S he ll - fi sh o r C ru st ac ea S an it at io n o f S ea l- lo ps M os qu it o C on tr ol C on tr ol o f p es ti ­ c id es P es ti ci de L aw Se di m en ta ti on C on ­ tr o l P ol ic y M ak in g B od y E nv ir on m en ta l M an ag e­ m e n t C om m is si on C on nn is si on f or H ea lt h S er vi ce s C om m is si on f or H ea lt h S er vi ce s C om m is si on f or H ea lt h S er vi ce s C on m is si on f or H ea lt h S er vi ce s C om m is si on f or H ea lt h S er vi ce s D ep t. o f A gr ic ul tu re / P es ti ci de C on tr ol B oa rd Se di m en ta ti on C on tr ol C om m is si on F ig ur e 3 c o n ti nu ed D et ai le d A dm in is tr at io n DN RC D: D iv . o f E nv ir on ­ m e n ta l M gt ./ W at er Q ua l­ it y S ec ti on DH R: D iv . o f H ea lt h S er ­ v ic es /S an it ar y E ng i­ n e e ri ng S ec t. pl us lo ca l he al th d ep ar tm en ts DH R: D iv . o f H ea lt h S er ­ v ic es /S an it ar y E ng i­ n e e ri ng S ec t. DH R: D iv . o f H ea lt h S er ­ v ic es /S an it ar y E ng i­ n e e ri ng S ec t. DH R: D iv . o f H ea lt h S er ­ v ic es /S an it ar y E ng i­ n e e ri ng S ec t. DH R: D iv . o f H ea lt h S er ­ v ic es /S an it ar y E ng i­ n e e ri ng S ec t. D Ag : P es ti ci de & P la nt P ro te ct io n D iv is io n DN RC D: D iv . o f La nd R e­ s o u rc e s /L an d Q ua lit y S ec ti on M an ag em en t T oo l D is ch ar ge P er m it s S ta te d es ig n & s it e 's ta n da rd s/ lo ca l pe rm it D is po sa l s it e p er ­ m it s S ta nd ar ds & p er ­ m it s S ta nd ar ds & p er ­ m it s S ta te a s s is ta n ce / lo ca l pr og ra m s & pe rm it s S pe ci al p er m it s A pp li ca to r li ­ c e n s e s A pp li ca ti on r u le s S ta te a pp ro va l o f lo ca l c o n tr o l pr og ra m s & s ta te L eg al C it at io n GS 14 3- 21 5. 1 GS 13 0- 16 6 GS 13 0- 16 6. 18 GS 1 30 -1 69 .1 GS 1 30 -1 69 .0 4 GS 13 0- 20 6 GS 14 3- 44 0( b) GS 1 43 -4 52 GS 1 43 -4 58 GS 11 3A -6 0 & fe de ra l p ro je ct s; lo ca l a pp ro va l o f p ro je ct p la ns N I- ' ~ Pr og ra m a n d A ct iv it y P ol ic y M ak in g Bo dy M in in g M in in g C om m is si on O il P ol lu ti on E nv ir on m en ta l M an ag e- m e n t C om m is si on R el at ed W at er a n d La nd M an ag em en t F lo od pl ai n M an ag e­ m e n t D re dg e & F il l (E st ua rin e w a te rs ) C oa st al R es ou rc es P ub li c U ti li ti es ­ E le c t ri c Po w er , te le ph on e, n a tu ra l ga s, pr iv at e w a te r s u pp ly A ct iv it ie s A ff ec ti ng St at e- ow ne d Su b­ m e rg ed P ro pe rt y E nv ir on m en ta l M an ag e­ m e n t C om m is si on M ar in e F is he ri es C om ­ m is si on · C oa st al R es ou rc es C om m is si on D ep t. o f Co m m er ce / U ti li ti es C om m is­ s io n D ep t. o f A dm in is tr a­ ti on /C ou nc il o f S ta te Fi gu re 3 c o n ti nu ed D et ai le d A dm in is tr at io n DN RC D: D iv . o f La nd R e­ ~o ur ce s/ ~a nd Q ua lit y Se ct io n DN RC D: D iv . o f E nv ir on ­ · m e n ta l M gt ./A dm in is ­ tr a ti o n DN RC D: D ep ut y S ec ., O f­ fi ce o f P ub li c W or ks pl us D iv . o f Co m m un ity A ss is ta nc e DN RC D: D iv . o f M ar in e F is he ri es DN RC D: D ep ut y S ec ./ C oa st al R es ou rc es O f­ fi ce & L oc al P er m it O ff ic ia ls P ub li c S ta ff DA dm : O ff ic e o f S ta te P ro pe rt y a n d C on st ru c­ ti on M an ag em en t T oo l . L eg al C it at io n O pe ra ti on p er m it s GS 1 43 -2 15 .1 00 R eg is tr at io n o f GS 1 43 -2 15 .9 6 o il t er m in al f a- c il it ie s; O il r e fi ni ng f a- GS 1 43 -2 15 .1 00 c il it y p er m it s S ta te a s s is ta nc e & GS 1 43 -2 15 .5 1 lo ca l pe rm it s fo r de ve lo pm en t in fl oo dw ay D re dg e & f il l pe r- GS 1 13 -2 29 m it s in c o a s ta l a re a s S ta te M ajo r D ev el - GS 1 13 A -1 00 o pm en t P er m it s; lo ca l M in or D ev el - o pm en t P er m it s C er ti fi ca te o f C on - GS 62 -1 10 v e n ie nc e & N ec es - s it y ; C on st ru ct io n pe rm it f or p ub li c u ti li ty f ac il it ie s E as em en ts , L ea se s, s a le o f s ta te su bm er ge d la nd s GS 1 46 -6 c th ro ug h 14 6- 12 N I- ' V l F ig ur e 3 c o n ti nu ed Pr og ra m a n d A ct iv it y P ol ic y M ak in g B od y · D et ai le d A dm in is tr at io n O il E xp lo ra ti on E ar th R es ou rc es C ou n- DN RC D: D iv . o f La nd R e- c il s o u rc e s /A dm in is tr at io n G eo ph ys ic al E xp lo ra - E ar th R es ou rc es C ou n- DN RC D: D iv . o f La nd R e- ti o n c il s o u rc e s /A dm in is tr at io n DN RC D: DH R DA g DA dm D ep ar tm en t o f N at ur al R es ou rc es a n d C om m un ity D ev el op m en t D ep ar tm en t o f H um an R es ou rc es D ep ar tm en t o f A gr ic ul tu re D ep ar tm en t o f A dm in is tr at io n M an ag em en t T oo l L eg al C it at io n P er m it t o d ri ll o il G S 11 3- 38 1 o r ga s w e ll s G eo ph ys ic al E xp lo - GS 1 13 -3 91 r a ti o n P er m it i n s ta te s u bm er ge d la nd s CONCLUSIONS From this brief and admittedly sketchy review of the North Carolina water man­ agement situation, the following major conclusions can be drawn: 1. There is a reasonably good legislative base for effective water management, and it appears that the North Carolina legislature is reasonably responsive to pressures for changes. 2. Existing legislation has not been codified into a consistent body of law. In addition, some important legislative gaps exist, especially in the fields of water allocation, non-point source pollution control, flood management, and state cost-sharing policy. Furthermore, enactment of the "sunset" law by the last session of the General Assembly offers an incentive for a thorough new look .at the entire body of North Carolina water and environmental law. 3. Administration of existing water management legislation is strongest in those substantive areas most strongly promoted by the federal government. Thus, for point-source water pollution control, the state has a reasonably effective, well-financed planning and management program supported by federal grants, including a system of permits. Non-point pollution source man­ agement is less well-developed. Statewide and areawide planning programs under section 208 of the Federal Water Pollution Control Act Amendments of 1972 . are relatively new, and management activ­ ities are as yet minimal. 4. Via the completed Framework Study with its policy recommenda­ tions, and the projected level B water resources study of the Yadkin-Pee D~e River Basin, DNRCD has made a good beginning toward developing a planning strategy that will contribute toward more effective water management. 5. Under federal impetus, the State Coastal Area Management Act has just now entered the implementation stage. Representing a mix­ ture of local planning and controls, and state controls over areas designated as critical, administration of the Act is being coordinated with the existing federal-state-local permit pro­ cedures. Problems of permit coordination at both the intra­ state and federal-state levels have been foreseen by the adminis­ trators. 6. Administration of the North Carolina Sedimentation Control Act is proceeding vigorously, although state staff resources are limited. The Act is one of the most important management meas­ ures available to control urban non-point pollution and should be considered as an integral part of the statewide 208 program. Major limitations, in addition to staffing, are the exclusion of agriculture, forestry, and mining activities from control under the Act, and the weak incentives to obtain strong local adminis- 216 tion of the Act. Direct administration by the state will inevi­ tably be limited by shortages of funds. 7. The Floodway Regulation Act, in contrast, is not being adminis­ tered by the state, due to lack of funds, and, until recently, no clear-cut administrative assignment of responsibility. Designation of floodways, which the state is authorized to do if not done by the localities, is an important activity that is crucial to effective flood management. In addition, some revi­ sion of the Act is needed to clarify its intent, to correlate its provisions better with federal flood management legislation, and to provide an adequate scope of authority. 8. Water quantity management, including effective means for allo­ cating surface and ground waters to competing needs, is the most important unresolved water management issue in North Carolina. As typified by the nuclear power plant cases (the Shearon Harris, Perkins, and South River power projects), state action on dealing with the major water resources consequences of large-scale devel­ opments has been ad hoc and characterized by con.fusion and uncer­ tainty. Included here are issues of withd:Pawals from streams and lakes and from underground aquifers, for domestic and industrial uses, power plant cooling, and agriculture for both consumptive and non-consumptive use; and issues of releases from lakes and reservoirs to maintain appropriate lake levels and to provide appropriate minimum flows to preserve water quality and promote in-stream and lake uses such as recreation, fish and wildlife, and hydro-electric power generation. The important issue of the legality of trans-basin "diversions remains to be resolved. 9. Although North Carolina water allocation laws are deficient with regard to adequate state control of surface water withdrawals and releases, including trans-basin diversions, the major deficiency is in administration of the existing WUA and related legislation. A clear assignment of responsibility is needed to a water-manage­ ment unit in DNRCD analogous to the assignment to the State Water Engineer's office in some western states. Also needed are ade­ quate funds to staff such a unit and allow for the continuing studies of water allocation that are needed to anticipate prob­ lems before they arise. In addition, there is a need for a codi­ fied water management act that would address stream, lake, and ground-water modifications, including issues of dam location, channelization, instream flow requirements, lake level manage­ ment, withdrawals from surface and ground waters, and interbasin transfers. 10. Closely related to the water allocation issue, as well as to other aspects of water management, is the need for a coherent and consistent state water management policy. The North Carolina Framework Study is a good beginning toward such a policy, but much more work needs to be done to formulate and keep up-to-date a management policy that will serve the needs of administrators and decision-makers. 217 11. Interstate problems of water management, including allocation, will become increasingly important in future years. The current serious problems between Virginia and North Carolina in the lower Roanoke-Chowan basins highlight the need for the state to establish law, policy, and administrative guidelines to deal effectively with these issues. 12. There is a lack of emphasis in law and policy on conservation of surface and ground waters as a complementary management measure to water allocations, including control of withdrawals and releases. A vigorous water conservation program needs . to be adopted as an integral part of state water management. A number of specific and detailed suggestions for improvement in North Caro­ lina's water law and administrative systems for water allocation have been developed. The more important of these are as follows: 1. A priority classification system for present and future com­ peting permit applicants should be developed, including a priority system for permitted users during water shortages and emergencies. This system should also specify conditions under which permits can be revoked or modified. 2. Clearer operational definitionB should be developed for such con­ cepts as use of water which requires coordination and regula­ tion, consumptive use? and substantial diminution of the source. 3. Directly related to the above suggestion is the need for addi­ tional research to evaluate the productivity of the hydrological systems under question and to establish a definite range of values for water withdrawals beyond which identifiable adverse impacts will occur. State officials need better information on these matters in order to enforce water use restrictions. 4. Staffing and funding needs to be increased for a more vigorous implementation of water use laws. User charges should be studied as one funding option. 5. For a more complete water management system, additional tools · Should be made available to state officials. Pennsylvania has a consumptive use makeup approach that North Carolina should investigate. Other tools are needed for regulating streamflows and lake levels. Incentives for water conservation should be added to our existing water resource management systems. 6. The strong state water conservation program suggested above should concentrate first on problem areas. The state should be able to aid users in reducing water use requirements. 7. North Carolina needs to investigate the feasibility of a state­ wide permit/management system to define water rights and manage water use. The experience of Maryland, Florida, and Georgia could provide information. 218 8. The current move by DNRCD to reactivate the North Carolina-Vir­ ginia Water Resource Management Conunittee should be vigorously pursued. FOOTNOTES 1. Milton S. Heath, Jr., "Some Current Legal Issues in North Carolina Con­ cerning Diversion of Water for Public Water Supplies and Related Matters," April, 1978. 2. Sununarized in Triangle J Council of Governments, Triangle J . 208 Are(J1J)id.e Water Quality Management Plan: Inventory of Existing Resources, March, 1976. 3. N.C. General Statutes 113A-100. 4. Id., 143-215.51. 5. Id., 173A-50. 6. Water Use Act of 1967 (N.C. Gen. Stat. 143-215.13 et seq.); Well Con­ struction Act (N.C. Gen. Stat. 87-83 et seq.); Emergency Allocation Powers (N. C. Gen. Sta.t. 143-354); Regulation of Flow from Small Water­ shed Projects (N.Cw Gen. Stat. 139-35); Right of Withdrawal of Impounded Water (N~C. Gen. Stat. 143-215.44); Dam Safety Law (N.C. Gen. Stat. 143- 215.23); Certificate of Convenience and Necessity for Construction of Public Utility Plants (N.C. Gen. Stat. 62-llO); Water and Sewer Authori­ ties Act (N.C. Gen. Stat. 162A-7). 7. N.C. General Statutes 153-215.13. 8. N.C. Administrative Code, Title 15, chapter 2, subchapter 2E, section 0205. 9. N.C. General Statutes 143-215.15. 10. Id. 143-215.16. 11. N'.C. Administrative Code, supra, note 8, section .0103, Environmental Management Commission, Raleigh, N.C. 12. N.C. Department of Natural and Economic Resources, Ground-Water Section, Status Report on Ground-Water Conditions in Capacity Use Area No. 1, Central Coastal Plain, North Carolina, Ground-Water Bulletin No. 21, Raleigh, N.C. (June, 1974) p. 4. 13. N.C. General Statutes 215.16(e, f). 219 14. National Water Comntlssion, A Swnmary-Digest of State Water Laws, Richard L. Dewsnup and Dallin W. Jensen, editors, 1972, p. 573. 15. N~c. General Statutes 143-215.15. 16. Id., section .0205. 17. Id.; under section .13(d)i 18. Information in a l~tter tQ Representative Robie Nash from William Raney, Special Deputy Attorney General, October 11, 1976. 19. N.C. General Statutes 143~215.22. 20. Letter to Representative Robie Nash from William Raneyj aup~a, note 18. 220 WATER RESOURCE PROBLEMS (North Carolina) 1. Surf ace Water Law Water - Withdrawal uses and allocation 5 Instream uses 4 Saline water intrusion - Land use relationships 1 Property damage 1 Ownership of submerged lands 5 Conjunctive use surface & ground water 4 Protection ground water recharge areas - Emergency use 2 Interbasin transfer 5 Interstate effects 4 Shoreline protection 2 Wetland protection 2 Public access 4 Reservation of reservoir sites 2 P11h 1; c_ riaht-s in n~via~hlP water 5 - Water Administration Allocation standards & criteria 5 Data bases 2 Permit procedures 4 Regulation & enforcement 4 Agency structure & functions 3 Planning (integ. of quality, quantity) 4 Please mark as to priority using following code: 5 highest i l 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water - 3 - - - 3 3 - 3 4 - - - 3 - 3 - 2 - - ·- - 4 - - - - ·- - - - - - - ·- ~~ 3 - · 4 4 I 3 3 4 4 _J Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address the problems. 221 NORTH CAROLINA STATE AGENCY COMMENTS A.F. McRorie Acting Director Division of Environmental Management North· Carolina Department of Natural Resources and Community Development Raleigh, North Carolina INTRODUCTION This paper will provide an over-view of the North Carolina legal and adminis­ trative problems and how these might be addressed by legislation. The paper by John Wray discusses in more detail laws needed for water management in North Carolina. Seven water resource problems are of foremost interest to North Carolina. Three of these issues concern water administration while the other four are water law issues. ADMINISTRATIVE ISSUES The administrative issues include: 1. Allocation standards and criteria, 2. Data bases, and 3. Agency structure and functions. To date, neither standards nor criteria for the allocation of water resources have been implemented in North Carolina. A device which could fulfill this function is the capacity use provisions of the Water Use Act of 1967.1 How­ ever, since such a designation has not been made for any surface waters in the state, the standards and criteria are undeveloped and untested to date. On the water quality side, NPDES permit authority under the Federal Water Pol­ lution Control Act Amendments of 19722 has been granted and provides a good handle on point source dischargers. By revisions of water quality standards and subsequent changes in permits when they come up for renewal, effective con­ trol can be exerted over this form of pollution. What is lacking at the moment is a similarly effective means of dealing with non-point sources of pollution. Our initial 208 plan will be completed in 1978 and should provide a handle on these problems which, until recently, have taken a back seat to point source discharges. The competition for use of water resources is not likely to lessen for any of the southeastern stat~s, especially as the South continues to attract new 222 industries and people. There is need to balance environ~ental protection and economic development in our water resources decision-making. At the moment, the only solution, other than negotiation, for allocation dis­ putes is a lawsuit. The legal route is, of course, the ultimate solution, but without a definitive state policy, it is, in fact, the only solution. The need to develop state policies on the allocation of water resources is obvious. On the subject of data bases, advances in developing and using this material have been made. However, there is a crying need for more data, particularly ground-water data, to help in making decisions on possible conjunctive uses. There is also a need to promote mutual interests by making water use data more generally available among the many agencies which have and use this information. However; there is danger in excessive waiting for the ultimate statistic in crucial water quantity and quality issues. There· must be attention to the economic and environmental as well as engineering aspects of an issue. It is more important to preserve a margin of safety for society than to provide a correlation of .9. Traditionally, much water policy is made in crisis and in haste; a better approach is possible. On the point of agency structure and functions, reference is made to the ideas in the preceding paper by Maynard Hufschmidt. A significant concern is the possible carving up the complex and interdependent "body" of water resources such that the "patient" is lost. Partisanship, inter-agency bickering, . or other forms of · bureaucratic pollution can be just as real threats to water resources .as eutrophication or any other natural process. One .more point needs to be made here. Our agency has most of the legal frame­ work necessary to do the job; the issue is one of providing the manpower necessary to conduct a water management program. To date, planning has been conducted with an absolute minimum of staff. It will be necessary to have skilled people in place before any management program can succeed. WATER LAW ISSUES The four areas of concern under water law are 1. Withdrawal uses and allocation, 2. Instream uses, 3. Interbasin transfer, and 4. Reservation of reservoir sites. A potential interbasin transfer situation is developing in the Southern Pines area. A capacity ·use study will be conducted in that area to determine if a problem or potential problem exists. However, if a capacity use area desig­ nation is not made, the agency will have no further involvement with the potential interbasin transfer which may ' occur. Since no capacity use area 223 designations have yet been made for surface waters, there is no control over interbasin transfers. The need for a legal basis to address interbasin trans­ fers independent of capacity use area designations exists. · Such a method should involve in the process riparian owners who may be impacted in some more productive role than simply suing after-the-fact for damages. Currently, there is no direct legal control over lake level fluctuations and their possible impact on water quality, quantity recreation, or wildlife. A better means of protecting the interests of all those who value lakes for uses other than those intended by builders is needed. The value of cooperative relationships with our neighboring states cannot be overemphasized. The North Carolina-Virginia Water Management Committee holds great possibilities for our mutual benefit. A means to settle differences equitably without the expense and difficulty of going to the U.S. Supreme Court is needed. This body, and others like it, may wish to explore possible benefits in federal water resources legislation. There is concern in North Carolina that accelerated urban growth may convert necessary potential reservoir sites into subdivisions or shopping centers. This threat could mean that the very people buying those homes or shopping in that mall would be indirectly forcing themselves into buying an essential ser­ vice at an unnecessarily high price. Any system other than a local, basically natural means for retaining water is going to increase energy requirements and other costs as well. This is a very important area for consideration. Those, in . brief, are our concerns. The fundamental principle among them is the attitude that water really is a resource. By employing the capacity use prin­ ciple, it may be possible to address allocations, instream uses, lake levels, power generation, and recreational uses of our water resources. Legal guidance from the General Assembly on the handling of interbasin transfers can strength­ en our decision-making in.that area. FOOTNOTES 1. N.C.G.S. 143-215.13 et seq. 2. 33 U.S.C. 1251 et seq. 224 WATER RESOURCE PROBLEMS (North Carolina) 1. Surf ace Water Law Water Withdrawal uses and allocation 5 Instream uses 4 Saline water intrusion 2 Land use relationships Property damage Ownership of submerged lands 1 Conjunctive use surface & ground water 4 Protection ground water recharge areas Emergency use 2 Interbasin transfer 5 Interstate effects 4 Shoreline protection 3 Wetland protection 3 Public access 3 Reservation of reservoir sites 4 Water Administration Allocation standards & criteria 5 Data bases 5 Permit procedures 4 Regula.tion & enforcement 2 Agency structure & functions 4 Please mark as to priority using following code: 5 highest i l 1 lowest, but significant --- --. - 2. 3. Diffused Surface Ground Water & Drainage Wr.it e r - _o 3 ~ 3 j ·~ 4 2 2 4 4 I 5 5 5 4 2 2 I 4 Rating of 4 or 5 indicates a beJief that the problem is considered serious anlored the limitations on the extent of riparian ownership. It might be assumed that riparian ownership would be confined to the watershed of origin; however, no case has addressed such limit. Other questions pertaining to the acquisition or transfer of riparian rights also remain unanswered. '!'.he "chain of title" or "unity of title" theories, though of doubtful application, have not been argued.34 Nor has the severa­ bility of riparian lands or title been tested.35 The acquisition of rights to use water by prescription has been addressed in one early case, establishing that an adverse use of water for twenty years against successive owners of the servient soil is sufficient to establish a prescriptive right.36 The case is more interesting in light of the fact that the claimant established a prescriptive right to the entire flow of the water­ course in question. Although the statement of the reasonable use doctrine applied since White v. Whitney Mfg. Co.37 includes the requirement that water diverted from a water­ course be returned, after reasonable use, to the watercours·e before leaving the riparian's property, no case clearly confirms the common law prohibition of interbasin, or interwatershed, transfer. It is presumed, absent such decision, that interbasin transfers would result in actionable violation of downstream riparian rights.38 Despite this uncertainty, the General Assembly of South Carolina has enacted several local acts, dealing with particular municipal water supply problems, which purport to authorize the diversion of water from one watershed to be used and discharged into another watershed.39 Generally 239 the diversions are by nonriparians for use on nonriparian lands. Some of the acts specifically recognize the right of the riparians to the water being diverted and inferentially allow suit to be brought against the diverting municipality.40 Others are silent as to the rights of the riparians.41 Despite the apparent ease in obtaining such legislative recognition, in gen­ eral, municipalities have planned or implemented interbasin transfers with little regard to the possible co~sequences. It is quite connnon and often most practical for a waterworks system to withdraw water from one watershed, pro­ cess it 1 and distribute it to another watershed for use, treatment, and dis­ charge. 42 No reported case has apparently challenged the result or enactment of the above acts nor any municipal interbasin transfer for water supply purposes. Whether interbasin transfer for public purposes constitutes a reasonable use, when such waters are used on nonriparian lands, has not been determined.43 Due to the abundance of surf ace water in many areas of South Carolina, even large withdrawals, unreasonably used, might not produce injury of sufficient substance to justify suit. The court, in the case of Cha,lk v. MaAlily,44 cautioned riparians not to complain of insubstantial injury and stated that without "appreciable damage" a legal injury does not arise.45 With the exception of certain statutes affecting ground water, as will be dis­ cussed later, few legislative enactments alter or tend to alter riparian doc­ trines in South Carolina. The state's pollution laws,46 however, could exert substantial influence in a riparian's choice of remedies in a water use con­ troversy involving pollution caused by upstream proprietors. In addition to the regulatory activities of the state in setting the quantity and quality of discharges,47 the pollution statute provides its remedies in addition to remedies afforded a riparian under the reasonable use doctrine: It is the purpose of this chapter to provide additional and cumulative remedies to abate the pollution of the air and waters of the State and nothing herein contained shall abridge or alter rights of action in the civil courts or remedies existing in 'equity or under the connnon law or statutory law, nor shall any provision in this chapter be construed as estopping the State, persons or municipali ­ ties, as riparian owners or otherwise, in the exercise of their rights under the coIIDilon law, statutory law or in equity to suppress nuisances or to abate any pollution.48 Apparently, a riparian would have a cause of action based upon the "reason­ ableness" of a discharge, despite such discharge being permitted or otherwise not in violation of state water quality standards. Several statutes limit or regulate the erection of dams or the backing up or overflowing of water by dams.49 Other provisions of the Code propibit ob­ struction of navigable waters and require land owners to clean obstructions from streams.SO The latter statutes have been wholly unenforced in recent times and are riddled with, seemingly, unconstitutional local exceptions.51 240 Beyond federal permitting requirements, the state regulates construction activ­ ities, although not water withdrawals, in the navigable waters and wetlands of the state.52 Occasionally, low-flow discharge conditions are imposed upon per­ mits for impoundments in navigable waters. No other state enactments appear to have regulated instream flows. Several laws provide general emergency powers to the state health agency and the Governor. 53 Whether such .statutes are broad enough to be used to allocate waters in time of shortage and emergency is unknown and untested by court deci­ sion. The foregoing discussion outlines the state of the riparian doctrine in South Carolina as it appli·es to surface waters. Any discussion of the riparian doc­ trine as it may be applied in a contemporary water use controversy in South Carolina entails much speculation. Many important aspects of the reasonable use doctrine and limitations on riparian ownership have not been addressed in state decisions. The principal unanswered questions appear to be: 1. What is the extent of riparian ownership? Is it co~fined to the watershed of origin? Is the right severable? 2. Is the interbasin transfer of water, with or without legislative sanction, a violation per se of riparian rights? Can an inter­ basin use of water be acquired by prescription? and 3. Given the tendency of the court to protect natural flow rights, what industrial or irrigation uses of water might be found reasonable? Is a public use of water out of the watershed a reasonable use? As a practical matter, the primary concerns deal with the relative indiscrim­ inate use of water in South Carolina and the lack of measures to regulate or determine the amount of water withdrawn or to provide for instream flow pro­ tection. No statewide surface water allocation statutes exist. As historical footnote, South Carolina considered legislation in 1953 and 1954 to replace portions of the riparian doctrine with an appropriate system.54 The proposal was dropped after much debate. Even if such a statute had been enacted " ••• there is a lingering fear . that the South Carolina Supreme Court might declare any such legislation unconstitutional, even if riparian rights in actual use are protected."55 The court has taken a restrictive view of what constitutes a "public use" in constitutional construction of eminent domain powers.56 The court has struck down urban redevelopment programs, which provide for public taking and subse­ quent availability to public or private interests, as being essentially a private use.57 The use of eminent domain powers has also been declared uncon­ stitutional in a case involving the acquisition of lands by a watershed dis­ trict for a recreational lake serving private purposes.58 Since any type of appropriation law would, by necessity, extinguish or restrict riparian rights or would enable private interests to appropriate waters for uses outside the watershed, the strict interpretation of public use would be a formidable 241 obstacle in meeting constitutional muster.59 Recognizing that some reformation of state water laws should be addressed, how­ ever, the General Assembly in 1967 enacted the South Carolina Water Resources Planning and Coordination Act,60 which established a water resources commission for planning and advisory purposes. Its powers are general and non-regulatory: (a) The committee shall advise and assist the Governor and the General Assembly in: (1) formulating and establishing a comprehensive water resources policy for the State, including coordina­ tion of policies and activities among the state departments and agencies; (2) developing and establishing policies and pro­ posals designed to meet and resolve special problems of water resource use and control within or affecting the State, including consideration of the requirements and problems of urban and rural areas; (3) reviewing the actions and policies of state agencies with water resource responsibilities to- determine the consistency of such actions and policies with the com­ prehensive water policy of the State and to recommend appropriate action where deemed necessary; (4) reviewing any project, plan or program of Fed­ eral aid affecting the use or control of any waters within the State and to recommend appropriate action where deemed necessary; (5) developing policies and recommendations to assure that the long range interests of all groups, urban, sub­ urban, and rural, are provided for in the State's repre­ sentation on interstate water agencies; (6) recommending to the General Assembly any changes of law required to implement the policy declared in this act; and (7) such other water resources planning, policy for­ mulation and coordinating functions as the Governor and the General Assembly may designate.61 DIFFUSED WATERS South Carolina, since 1893,62 has adhered to the common enemy rule in dealing with diffused surface waters. The court, in adopting the common enemy rule, rejected theories requiring reasonable use considerations, stating: 242 Under the common law rule, surface water is regarded as a common enemy, and every landed proprietor has the right to take any measure necessary to the protection of his own property from its ravages, even if in doing so he throws it back upon a coterminous proprietor to his damage •••• 63 The application of the coDDnon enemy rule to diffused surface water was reaf­ .firmed bi the court six years later in the case of Baltzeger v. Carolina Mid­ land Ry., 4 the leading case on the subject. The rule applies only to contro­ versies ' involving diffused waters, not to natural watercourses. The distinguishing features of a watercourse, so as to separate it from dif­ fused water, are that it must flow in a definite channel; have a bed, sides, or bank; usually flow in a particular direction; and naturally discharge itself into some other stream or body of water. A more detailed definition was dis­ cussed previously.65 The application of a strict common enemy ~gle to diffused water controversies is extreme and often has been criticized. The rule in South Ca+olina, how­ ever, has been modified to some extent. One of the exceptions to the strict coDDnon enemy doctrine in South Carolina is that a landowner must not deal with his diffused surface water in a manner so as to constitute a nuisance. The court in Baltzeger61 found the right of a landowner to deal with diffused waters .••. is subject to the general law in regard to nuisances, if its accumulation has become a nuisance per se, as for example, whenever it has become dangerous at all times and under all circumstances to life, health or property.68 The court further indicated that even if a nuisance per se was not made out, recovery could be based upon priva~e as opposed to public nuisance. This required a showing of special damage, different in kind and degree from damage that would be sustained by the public generally. The fact situation of the case, however, showed the rather limited availability of the nuisance excep­ tion. The defendant, railroad, constructed an embanlanent causing the ponding and subsequent stagnation of water on the railroad's property. The ponded water allegedly emitted gases which poisoned the air, leading to the death of the plaintiff's daughter. The court found the allegations insufficient to show nuisance per se because the stagnant water was not within the above quoted rule, and the fact that the plaintiff's daughter had died because of the noxious gases was not a kind of special damage which might not be expected to be sustained by the public as a whole.69 Three subsequent cases, all involving flooding by diffused waters, seem to con­ firm the inability of landowners to show damages sufficient to fall within the nuisance exception.70 Two more recent cases have s~stained verdicts based upon the nuisance exception, however, on rather narrow grounds, such that the prac­ tical availability of the nuisance exception is still in question.71 Another exception to the coDDnon enemy rule is that diffused water cannot be 243 collected into an artificial channel and cast upon another's land in concen­ trated form.72 The exception seems to rest on the premise that diffused water becomes the property of the owner and that he may not dispose of his property to the injury of another.73 As one author points out, however, the exception seems to reverse several basic elements of the common enemy rule, i.e., that diffused water is an intruder, not subject to ownership, and that the upper proprietor may fight off the intruder in any effective way.74 While the court in Branderberg v: Zeigler75 drew a distinction between casting water upon another's land and preventing the flow of diffused water upon your own land, at least one other case suggests the application .of the exception to a lower landowner who would dam the flow of diffused water and thus throw it back upon his upper neighbor.76 While some cases suggest the applicability of negligence or reasonable use con­ siderations in dealing with diffused water controversies,77 the overwhelming majority of cases reject negligence and reasonable use concepts.78 The rejec­ tion of these doctrines and of the restricted availability of the nuisance and "casting in concentrated form'·' exceptions leave the common enemy rule relative­ ly intact in South Carolina. 7·9 A comprehensive drainage act,80 in existence since 1872, was declared unconsti ­ tutional in 1973.·81 Its provisions authorized private condemnation of right-of­ way through another's land in . the event drainage is needed and the landowner, over whose land the right-of-way is desired, refuses to grant it.82 In the sa~e case, the court clarified the doctrines pertaining to drainage acquired by prescription.83 GROUND WATER There are no reported cases on the ownership of ground water in South Carolina. While there is some speculation that the English concept of absolute ownership might be applied by the South Carolina Supreme Court, at least in a private ground-water controversy,84 given the total absence of decisional law, it might be equally true that the court would adopt a qualified English rule o~ a doc­ trine based upon reasonable use or correlative rights.85 Any distinction in the rules of law applying to underground streams as opposed to· percolating water has not been explored. Howeve.r, prompted by fears of water level declines and saltwater intrusion in the coastal areas of the state, the South Carolina Legislature enacted the Ground Water Use Act in 1969.86 Based upon a similar North Carolina statute,87 the act requires that the water resources of the state be put to beneficial use, subject to regulation to conserve, provide, and maintain conditions which are conducive to the development and use of water resources.88 The act authorizes the South Carolina Water Resources Commission to establish, after required studies, a "capacity use area." In such an area, permits are required to withdraw ground water in excess of 100,000 gallons per day for any purpose. 244 A capacity use area is defined as any area where the Conunission finds that the aggregate uses of ground water in or affecting the area: 1. Have developed or threaten to develop to a degree which requires coordination and regulation, or 2. Exceed or threaten to exceed or impair the renewal or replenish­ ment of the ground water.89 The wording appears sufficiently broad to include both areas of immediate con­ cern and recharge areas within a single capacity use area. Upon the evidence of an investigation and if the facts so justify, the Commis­ sion may adopt an order establishing a capacity use area.90 Notice and hear­ ings are required prior to effective declaration.91 After such a declaration, regulations are promulgated--again after notice and hearings--applying to the area declared.92 The act directs the Commission to consider regulations spec­ ifying: 1. Water use reporting requirements; 2. Timing of withdrawals; 3. Provisions to protect against or abate saltwater encroachment; 4. Provisions to protect against or abate unreasonable adverse effects on other water users in the area; and 5. Well depth and spacing, pumping levels, and maximum pumping rates.93 Water use permits are required in capacity use areas for withdrawals in excess of 100,000 gallons per day.94 If the use is non-consumptive, a permit may be issued without a hearing.95 Virtually all uses would be consumptive uses; however, non-consumptive use would be defined as • • • water withdrawn from a ground-water system or aqui­ fer in such a manner that it is returned to the ground­ water system or aquifer from which it was withdrawn with­ out substantial diminution in quantity or substantial impairment in ~uality at or near the point from which it was withdrawn. 6 The Commission may take into consideration whether the applicant has adequately compensated other water users in the area who have sustained injury by reason of the reduction of water pressure in the aquifer in determining whether a use is consumptive.97 In considering permit applications, the Commission is required to consider: (1) The number of persons using an aquifer and the object, extent and necessity of their respective withdrawals or uses; 245 (2) The nature and size of the aquifer; (3) The physical and chemical nature of any impairment of the aquifer, adversely affecting its availability or fit ­ ness for other water uses (including public use); (4) The probable severity and duration of such impairment under forseeable condit.ions; (5) The injury to public health, safety or welfare which result if such impairment were not prevented or abated; (6) The kinds of businesses or activities to which the various uses are related; (7) The importance and necessity of the uses claimed by permit applicants, or of the water uses of the area and the extent of any injury or detriment caused or expected to be caused to other water uses (including public use); (8) Diversion from or reduction of flows in other water courses or aquifers; and (9) Any other relevant factors.98 Procedures for permit administration are provided, including provisions for notice, hearings, and judicial review.99 Penalties and injunctive relief are provided.100 Taken as a whole, the Ground Water Use Act suggests a reasonable use doctrine imposed through state-issued ground-water use permits. In addition to the requirement that the Commission protect against unreasonable effects of water use by one person against others, 101 the agency must take into consideration the extent to which water use, prior to the declaration of capacity use, was "reasonably necessary" to meet the users' needs.102 The Connnission may also consider any prior investment of users in obtaining ground water in the issu­ ance of a permit.103 The act recognizes the interrelationship between surface water .and ground water; however, it provides contradictory authorities regarding regulation in this area. A required consideration in regulation drafting and permit deci­ sions is the impact of the proposed withdrawal on the diversion from or reduc­ tion of flows in other watercourses or aquifers.104 Elsewhere, the act pro­ vides that: Nothing contained in this chapter shall change or modify existing common or statutory law with respect to the rights of the use of surface water in this State. [Em­ phasis added.]105 It is suppose~ that ground-water withdrawal which affects surface supplies is within the scope of the act. Regulation of surface waters which might · impact 246 a capacity use area, or the users in such an area, is apparently prohibited. Problems of saltwater encroachment or intrusion from overdevelopment or im­ properly located, designed, or abandoned wells are addressed.106 Serious ground-water problems in South Carolina can be attributed to the void of decisional law as well as technical information on the subject. Given the Supreme Court's restrictive approach to public versus private constitutional ·limitations,107 the General Assembly's attempt to impose a statutory reasonable use system o~ ground water may be questioned.108 A substantial problem, although not entirely a legal one, is the lack of basic ground-water informa­ tion in the state. If the Ground Water Use Act accomplishes little else, it has initiated serious ground-water investigations as to the quantity, quality, and impact of ground-water use. Another interesting point, a full discussion of which is beyond the scope of this paper, is the inherent confusion · at the state level created between stat ­ utes such as this one, prima.rily concerned with water use and allocation, and the more recent federally-mandated pollution laws which are prima~ily concerned with water quality.109 Whether water allocation for water quality protection is envisioned under these acts is unknown. However, any distinction between quantity and quality considerations, as a practical matter, is often difficult to discern. NAVIGABLE WATERS A connnon right or servitude in the public to freely use the navigable waters of South Carolina is well established; however, what constitutes navigable waters is less clear. The right is declared and protected both in the South Carolina ConstitutionllO and in legislative enactments.Ill Such a servitude exists regardless of the ownership .of the banks or bed ·of a navigable stream, whether public or private.112 The public right of navigation as well as the right of f ishingll3 in navigable waters is superior to any rights that might be pos­ sessed by the riparian owners.114 The extent of the servitude embraces not only that which is actually used, but that which is susceptible to use for navigation in its ordinary state.115 Navigable, though artificial, canals connected to, or improving navigation on, otherwise navigable waters are likewise impressed with the public servitude over those waters.116 Obstruction of navigable waters may be abated as a public or private nui­ sance.117 Early South Carolina decisions provided that absent a showing of special or peculiar damage, differing in kind to that which all others in com­ mon might suffer, the remedy for removal of an obstruction on a navigable waterway was by indictment only.118 The court in State v. Water POW8r Co. apparently reversed earlier decisions, connnenting t~at the remedy at law by indictment is always available for the abatement of a public nuisance, but is not always exclusive or adequate and that an action in the court of equity for injunction is appropriate.119 In this case the court upheld the use of in­ junctive relief against a permanent obstruction to a navigable canal, stating: 247 The State, as a sovereign, holds the property right of un­ obstructed navigation of the navigable waters of the State in trust for the people of the State and of the United States. This is a property right of great value. It is well established that an individual has a right to injunc­ tion against threatened, repeated, or continued injury to his property rights. For a greater reason has the State, as trustee for the people, a right to the intervention of the Court to protect the valuable right of free naviga­ tion.120 The construction of a dam across a navigable waterway is not ? nuisance pe~ se if authorized by the legislature.121 The legislature, while having the power . to authorize the construction of an impoundment across a navigable stream by a private person, has no power to release that person from liability for damages created by a nuisance.122 Whoever constructs a dam or bridge in or over a stream must exercise reasonable and prudent care and must consider the natural flow of the stream and its usual freshets and occasional "great floods."123 The owner of a dam is required to exercise ordinary care in the operation and maintenance of the dam to avoid injury to those upstream and downstream.124 . The court has extensively reviewed the powers of the state to take, use, or modify the navigable waters of South Carolina for public purposes: The waters of the ocean and its bays, and of public water­ courses and lakes, so far as they lie within the jurisdic­ .tion of a state, are part of the public domain, and the state may authorize the diversion of such waters for any purpose it deems advantagebus to the public, without pro­ viding compensation to riparian proprietors injuriously affected. Such diversion is not a taking of private prop­ erty by eminent domain~ but a disposition by the public of the public property.~2J The powers of the state in the exerc~se of the navigation servitude coincide with those of the federal government and although the rights and powers of the federal government with respect to waters subject to interstate commerce are paramount, the powers of the state remain in full force and effect, unless and until Congress acts upon the subject.126 These powers exist regardless of ownership: The right of the sovereign, in the exercise of the naviga­ tion servitude, to take or damage or destroy private prop­ erty without obligation to compensate therefor extends to the bed of the navigable stream, i.e., to mean high water mark on either bank--and no farther; for damage beyond that boundary the Constitution requires just compensa­ tion.127 What constitutes a navigable waterway so as to raise a servitude or easement in the public in South Carolina is unclear. The court recognized in an early decision that the " .•• term navigable is equivocal,"128 although subsequent 248 cases lend little assistance in clarifying what is navigable. The South CaroZina Code provides that all streams which are capable or can be made capable of being navigated by "rafts of lumber or timber" by removal of accidental obstructions and all navigable watercourses or cuts are declared navigable waters of the state. 129 Although in a 1903 federal decision, the circuit court held this statute to be .declarative of existing law,130 it seems by no means clear what law the court considered it declarative of. Nonethe­ ·1ess, the statute, as the only legislative pronouncement on the subject, has been used by the state both in determining the extent of public navigation for permit purposesl31 and in determining ownership of the beds of non-tidal navi­ gable waters.132 The federal test for determining the navigable waters of ' the United States sub­ ject to the paramount powers of Congress has been rejected by the South Car­ olina Supreme Court in cases involving local issues.133 The strict conception of the common law test, i.e., tidal influence, has likewise been rejected by the court as a test of navigability.134 In the 1894 case of Heyward v. Fa:P111er's Mining Co.135 the court extensively reviewed the various doctrines determining which waters may be considered navigable-in-fact, finding that a stream should have sufficient depth and width of water to float useful commerce;l36 that neither the character of the craft nor the relative ease or .difficulty of navigation are tests of navi­ gability;l37 that the test is navigable capacity and surroundings have no . bearing on the· question;l38 that if water is navigable for pleasure boating it is navigable;l39 and that the purpose of navigation is not a subject of inquiry but the fact of the capacity of the water for use in navigation establishes navigability.140 While both the "log raft" test under the statute and the navigation-in-fact tests as pronounced by the court are highly subjective and are questions to be determined by the trier of ~act, in practical application it would be difficult to d·istinguish between the tests. Another line of cases, however, offers an additional test of which waters are considered navigable based upon the individual declarations of navigability made by the legislature." Apparently those streams which have been declared navigable by act of the General Assembly and made or kept navigable by expend­ iture of public moneys are recognized as navigable by the courts,141 at least to the ·extent that they are viewed as public highways.142 Whether such legis­ lative declarations would find favor in contemporary litigation is not known. OWNERSHIP OF SUBMERGED LANDS The issue of tidelands ownership represents a most significant and difficult water-oriented area of litigation in South Carolina. The claim of the state to those lands lying between the mean high and mean low water lines on the coast, an area of perhaps a half million · acres, has .been hotly contested by the large coastal landowners. While public ownership of tidelands and sub­ merged lands appears to have been a well-settled common law doctrine, vast areas of the coast throughout the eighteenth century were cultivated for grow­ ing rice. While rice cultivation ceased over a century ago, the tidal areas 249 are still considered valuable for waterfowl habitat, by maintaining ol~ rice impoundments or constructing new impoundments. The tideland cases, typically actions to clear title, are initiated primarily to establish whether the use of the tidelands is exclusive or public. Because of the great amount of literature devoted to the subject,l43 the com­ plexity of issues, and the view that tidelands ownership is governed by prop­ erty rather than water law doctr~nes, only a brief sunnnary of existing case law will be presented here. The leading case in South Carolina on ownershil of tidelands is Cape Bonnin Land Imp. Co. v. GeoPgia-CaroZina Canning Co., 44 a trespass action to deter­ mine whether the plaintiff or defendant had the right to harvest oysters on a large tract of land between the high and low water lines of tidal and navigable waters. The plaintiff, claiming title, relied upon several grants from the state--the defendant on oyster leases granted by the state. The court, in holding for the defendant, stated: The title to land below the high water mark on tidal navi­ gable streams, under the well settled rule, is in the State not for purpose of sale, but to be held in trust for public purposes.145 Any doubt as to the applicability of the rule has been eliminated by its sub­ sequent reaffirmation.146 The Cape Romain decision does not stand for the proposition, however, that tidelands are not capable of private ownership. If a grant to such lands from the state, or the state's predecessors in title (the King of England or Lord Proprietors) can be produced and traced in a direct and unbroken chain to the claimant, private ownership can be made out.147 Because virtually all of the coastal area of South Carolina was settled, and thus granted, prior to Inde­ pendence, most tidelands claimants can produce a royal or proprietary grant of some nature. The more recent tidelands cases involve the construction of such grants. Because of the nature and public importance of tidelands, submerged lands~ and lands beneath navigable waters, they are held by the state in trust, in a fiduciary rather than proprietary capacity.148 As such, grants purporting to convey .such lands are construed strictly in favor of the state and against the grantee.149 The state comes to court with a presumption of title, that it did not grant away public domain lands: A deed or grant by the State of South Carolina is con­ strued strictly in favor of the State and general public and against the grantee • . • • The (State) comes into court with a presumption of title and if the appellant is to prevail she would have to recover upon the strength of her own title of which she must make proof .150 General words will convey lands only to the mean high water line: 250 Under well settled rules of construction naming such bound­ aries ("inlet," "Sound or creek") will convey land only to the high water mark in the absence of specific language, either in the grant or upon a plat showing that it was intended to convey land below the high water mark.151 The location of the mean high water line is a question of fact for jury deter­ mination.152 As such, the method of determining and presenting evidence of this line to the trier of fact is often critical in tidelands litigation. Doctrines pertaining to the applicability of adverse possession or presumption of grant to the tidelands are not settled. The tidelands cases involve the ownership of tidally-influenced lands, whether fresh or salt.153 No authoritative decision can be cited as to the ownership of the beds of non-tidal navigable rivers. From the tidelands cases, it is unclear whether the public is presumptively the owner of the beds of navigable waters or merely tidal waters. One recent case, however, affirmed on other grounds a lower court holding that the state is the owner of the beds of non­ tidal navigable streams.154 The ownership of tidelands and lands beneath navigable waterways is considered to be an issue seriously needing both judicial and legislative clarification. The Attorney General of the state has consistently held that filling for pri ­ vate purposes below the mean or ordinary high water lines in tidal and navi­ gable streams constitutes an alienation or taking of public properties for private use. C.ontinued controversy can be expected between the state and developers on this issue. PUBLIC ACCESS Public ownership of the tidelands assures public use on those areas between the mean high and mean low water lines. However, such public ownership does not necessarily imply a right in the public to cross highlands to gain access to the tidelands or navigable waters.155 Beyond those access points owned by or clearly dedicated to the public, acqui­ sition of public access rights by prescription has been difficult based upon prevailing South Carolina decisions.156 Beyond the required use for the statutory period, the public, to acquire a prescriptive right for access, must do so adversely. The court in several cases apparently presumed any public use of a landing or access road was with the ·permission of the landowner, thus strictly viewing the requirement for adverseness.157 More recent decisions, however, indicate that the court is more receptive to the public's claim of right, either by prescription or implied dedication, especially .when the use is customary or well known.158 251 FOOTNOTES 1. Omelvany v. Jaggers, 2 Hill 634, 640 (S.C. 1835): "Though he may use the water while it runs over his land, he cannot reasonably detain it or give it another direction ••.. " The error is serious, substituting "rea­ sonably" for "unreasonably"; however the mistake was noted and corrected in the later case of White v. Whitney Mfg. Co., 60 S.C. 254, 266, 38 S.E. 456 (1901). 2. Omelvany, supra, note 1, p. 640. 3. White, supra, note 1. 4. Id., at 267, citing Dwnont v. Kellogg, 29 Mich. 420, 18 Am. Rep. 102. Of the Omelvany decision the court said, "the quotation from the case of Omelvany v. Jaggers ... is misleading, as it takes no notice of the limitation or qualification of the general rule " Id., at 270. 5. See, Garrett v. MaKie, 1 Rich. 444, 44 Am. Dec. 263 (1845); Chalk v. Ma­ Alily, 11 Rich. 153 (1857); Hines v. Jarrett, 26 S.C. 480, 2 S.E. 383 (1887). 6. White, supra, note 1, pp. 266-67, citing 3 Kent's Com., 353: Streams of water are intended for the use and comfort of man; and it would be unreasonable and contrary to the uni- . versal sense of mankind to debar every riparian proprietor from the application of the water to domestic, agricul­ tural and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned, and there will, no doubt, evidently be, in the exercise of a perfect right to the use of water, some evaporation and decrease of it, and some variations in the weight and velocity of the current; but de minimis nos aurat lex, and a right by the proprietor below, would not necessarily flow from such consequences, but would depend upon the nature and extent of the complaint or injury, and the man­ ner of using the water. All that the law requires of the party, by or over whose land a stream passes; is, that he should use the water in a reasonable manner, and so as not to destroy or render useless, or materially diminish or affect the application of the water by the proprietor below on the stream; he must not shut the gates of his dams and detain the water unreasonably, or let it off in unusual quantities, to the annoyance of his neighbor. 7. E.g., Mason v. Apalaahe Mills, 81 S.C. 554, 62 S.E. 399 (1907); Griffin v. National Light & Thorium Co., 79 s.c. 351, 60 S.E. 702 (1908); Lowe v. Otta.ray Mills, 93 S.C. 420, 77 S.E. 135 (1913); MaMahon v. Walhalla Light & Power Co., 102 s.c. 57, 86 S.E. 194 (1915). 8. White, supra, note 1. See also, Busby, The Beneficial Use of Water in South Carolina, (South Carolina Soil Conservation Connnittee, 1953). 252 9. Mason, supra, note 7. 10. McMa}um, supra, note 7. 11. Griffin, supra, note 7. 12. Lowe, supra, note 7. 13. See, M::zson, supra, note 7. 14. Busby, supra, note 8, p. 24. 15. See, to same effect, Dewsnup et al., A Swrrm:i.ry-Digest of State Water Laws, (National Water Commission, 1973), p. 667. 16. However, one recent federal decision explored the reasonable use doctrine of South Carolina, United States v. 531.13 Acres of Land., 366 F. 2d 915 (1966). 17. The case of Jordan v. La.ng, 22 S.C. 159, 37 S.E. 69 (1885), did involve the use of waters for irrigating rice, the downstream riparian complain­ ing of the quantity being used. The case was decided, however, on pre­ scription rather than reasonable use. 18. United States, supra, note 16. 19. Id., . at 919, citing IJunaan v. Union-Buffalo Mills Co., 110 S.C. 302, 96 S.E. 522, 524 (1917). 20. E.g., Griffin, supra, note 7; Willicuns v. Haile Gold Mining Co., 85 S.C. 1, . 66 S.E. 117 (1910); Mason, supra, note 7; Threat v. Bre~er Mining Co., 49 S.C. 95, 26 S.E. 970 (1897). 21. Willicuns, supra, note 20; Threat, supra, note 20. 22. White, supra, note 1. 23. MaMa:hon, supra, note 7 . 24. Id., p. 59. 25. Fewell v. Ca~ba P~er Co., 102 s.c. 452, 86 S.E. 947 (1915). 26. Busby, supra, note 8, p. 23. Busby views the Fewell decision as subject­ ing the use of · an entire drainage system to one lower proprietor's right to ford a stream. Id., p. 23, footnote 44. 27. Dewsnup, supra, note 15, p. 667. 28. E. Guerard, "The Riparian Rights Doctrine in South Carolina," 21 S.C. L. Rev. 757, 770 (1969). 253 29. See, Lowe, supra, note 7.; Rivenbark v. Atlantia Coast Line R.R., 124 s.c. 136, 117 S.E. 206 (1923). 30. Johnson v. Willia.ms, 338 S.C. 623, 634, 121 S.E. 2d 223 (1961), quoting from Lawton v. South Bo7,,(}1,(], R.R., 61 S.C. 548, 552-53, 39 S.E. 752 (1901). 31. Jones v. Seaboard Air Line R.R., 67 s.c. 181, 45 S.E. 188 (1903). 32. Dewsnup, supra, note 15, p. 668. But see Guerard, supra, note 28, pp. 760-62. 33. In Jones, supra, note 31, the defendant, railroad, caused, in the con­ struction of a bridge, the flooding of plaintiff's land. The court found that the plaintiff was entitled to access to the watercourse, saying at p. 194: The right which the plaintiff says the defendant invaded was not the right of navigation, or any other right which he held in common with the public, but the right to the unimpaired use of his land on the banks of the river. The fact that the stream was navigable does not affect this question. 34. See, Dewsnup, supra, note 15, p. 669. 35. See, Guerard, supra, note 28, p. 762. 36. Jordan, supra, note 17. 37. White, supra, note 1. 38. See, C.E. Hill, "Lim~tation on Diversion from the Watershed: Riparian Roadblock to Beneficial Use," 23 S.C. L. Rev. 63 (1971) for a full dis­ cussion of interbasin transfer in South Carolina. 39. A comprehensive list of these statutes is found in Hill, id., pp. 59-60. Most of these acts have been removed from the 1976 South Carolina Code of Laws, as local legislation. 40. Id., at 59. See, Section 70-471, 1962 South Carolina Code of Laws. 41. See, Section 70-491, 1962 South Carolina Code of LGMJs. 42. See, Hill, supra, note 38. Hill, while deploring the effect of the connnon law limitation on interbasin transfer, attributes the rather indiscrimi­ nate transfer of water to the State's abundant supply and a "carefree cavorting" caused by plentiful water. (p. 59). 43. See, Hill, supra, note 38, pp. 57-58. 44. Chalk, supra, note 5. 45. Id., p. 161. Defendant dannned and backed water upon plaintiff's lands, 254 two inches in height for a distance of 100 to 200 feet. The court stated at p. 163: Actions like this ought not to be encouraged upon com­ plaints of fanciful injury done to sublimated notions of exclusive territorial dominion • • • . Such actions some­ time proceed from rival interests or envious malignity. 46. "Pollution Control Act," Section 48-1-10, et seq., 1976 South Carolina Code of Laws. 47. "NPDES Permits," R. 61-9, Vol. 24, 1976 South Carolina Code of Laws. 48. Section 48-1-240, 1976 South Carolina Code of U:aus. 49. See, Sections 49-11-10, 20, 1976 South Carolina Code of Laws, prohibiting the overflow of lands of another by dams; Section 49-11-110, et seq., 1976 South Carolina Code of Laws, as amended, "The Dams and Reservoirs Safety Act," requiring approval of dam construction and design. 50. Sections 49-1-10, 20, 30, 40, 1976 South Carolina Code of I£cws. 51. See notes after Sections 49-1-20, 30, 1976 South Carolina Code of I£cws. 52. "Permits for Construction in Navigable Waters," R. 19-100, et seq., Vol. 23, 1976 South Carolina Code of Laws, as amended, requires permits for construction activities in the navigable waters of South Carolina below the mean or ordinary high water lines of such waters. A recent coastal zoning act, Section 48-39-10, et seq., 1976 South Carolina Code of Laws, as amended, requires permits for any construction or alteration in the saline waters and tidelands of the state. This permit replaces the above permit in the coastal. area and is broader in its jurisdiction over wet­ lands, beaches, and sand dunes. The act also requires that a coastal management plan be drafted and submitted to the Governor and General Assembly. 53. See Section 48-1-290, 1976 South Carolina Code of LaWs authorizes emer­ gency action by the Department of Health and Environmental Control to protect public health or property. Section 25-6-10 et seq., 1976 South Carolina Code of Laws, authorizes the Governor to maintain peace and order, to prevent violence and public calamity in an emergency or dis­ aster. See also 1975 Op. Atty. Gen. 190 (No. 4114), which provides that state-wide curtailments of natural gas supplies could create a situation warranting the Governor to exercise his emergency powers to prevent a public calamity by reallocating the state's remaining natural gas sup­ plies. Query, whether this could be analogized to water shortage. 54. See, Busby, supra, note 8, pp. 43-52. 55. Dewsnup, supra, note 15, p. 665. 56. See, for extensive discussion, J.H. Toal, "Edens: The Prime Obstacle to a Redevelopment of South Carolina Water Law," 23 S.C. L. Rev. 63 (1971). 255 57. Edens v. City of Columbia, 228 S.C. 563, 91 S.E. 2d 280 (1956). 58. Young v. Wiggins, 240 S.C. 426, 126 S.E. 2d 360 (1962). 59. Dewsnup, supra, note 15, pp. 665-66. 60. Section 49-3-10 et seq., 1976 South Carolina Code of La:uJs·. The Commission is composed of eighteen members; ten representing agriculture, municipali ­ ties, industry, and saltwater interests, appointed by the Governor, and eight directors of state agencies in natural resources or development fields. Section 49-3-20, 1976 South Carolina Code of Lciws. 61. Section 49-3-40, 1976 South Carolina Code of Lciws. No formal recommenda­ tion pursuant to subsection (6) above affecting riparian rights has been proposed by the Commission. 62. Edwards v. Cha.rlotte, Colwnbia & Augusta R.R., 39 s.c. 472, 18 S.E. 58 (1893). 63. Id., p. 475. 64. Baltzeger v. Carolina Midland Ry., 54 S.C. 242, 32 S.E. 358 (1899). 65. See, page 9 herein. See also W.T. Toal, "Surface Water in South Carolina," 23 S.C. L. Rev. 82, 84 (1971) and Busby, supra, note 8, pp. 29-32, for a more complete discussion. 66. Toal, supra, note 65, p. 83. 67. Baltzeger, supra, note 64. 68. Id., p. 247. 69. Toal, supra, note 65, p. 86, states of the decision: Thus the plaintiff's allegation was insufficient as a nui­ sance per se because the pond was not dangerous to every­ one and was insufficient as a private nuisance because it was as dangerous to everyone as it was his daughter. This case formed a formidable precedent against recovery on the nuisance theory. 70. See, Johnson v. Southern Ry., 71 s.c. 241, 50 S.E. 775 (1905); Rivenbark, supra, note 29; Banks v. Southern Ry., 126 S.C. 241, 118 S.E. 923 (1923). 71. See, Deason v. Southern Ry., 142 s.c. 328, 140 S.E. 575 (1927); Bowlin v. George, 239 S.C. 429, 123 S.E. 2d 528 (1962); See also Toal, supra, note 65, pp. 87-88, for discussion. 72. Brandenberg v. Zeigler, 62 s.c. 18, 39 S.E. 790 (1901); Rivenbark, supra, note 29; GaY'ITlany v. Southern Ry., 152 S.C. 205, 149 S.E. 765 (1929). 256 73. Toal, supra, note 65, p. 88. 74. Id., pp. 88-9. 75. Brandenberg, supra, note 72, p. 22. 76. See, Stater v. Price, 96 s.c. 245, 80 S.E. 372 (1913). 77. Deason, supra, note 71; Touchberry v. Northwestern R.R., 88 S.C. 47, 70 S.E. 424 (1911). 78. Toal, supra, note 65, p. 89. 79. Id. 80. Section 49~13-10 through 49-13-80, 1976 South Carolina Code of Laws. 81. Clemson Univ. v. First Provident Corp., 260 s.c. 640, 197 S.E. 2d 914 (1973); See also Douglas v. First Provident Corp., 263 S.C. 199, 209 S.E. 2d 49 (1974). 82. Sections 49-13-10, 20, 1976 South Carolina Code of Laws. 83. Clemson, supra, note 81, pp. 918-20. 84. See, G. Dukes and J. Stepp, South Carolina LGhJs, Policies and Programs Pertaining to Water and Related Land Resources (WRRI, Clemson Univ., · 1968)' p. 20. 85. See, R. Cross, "Ground Waters in the Southeastern States," 5 S.C. L.Q. 149 (1953), for more complete discussion of these doctrines. 86. Section 49-5-10, et seq., 1976 South Carolina Code of LGhJs. 87. Section 143-215.11, et seq., Gen. Stat. of North Carolina. 88. Section 49-5-20, 1976 South Carolina Code of LGhJs. 89. Section 49-5-40(b), 1976 South Carolina Code of Laws. 90. Section 49-5-40(a), 1976 South Carolina Code of Laws. 91. Section 49-5-40(c), 1976 South Carolina Code of Laws. 92. Section 49-5-50, 1976 South Ca.rolina Code of Laws. 93. Section 49-5-SO(a)(l-4), 1976 South Carolina Code of Laws. 94. Section 49-5-60, 1976 South Ca.rolina Code of Laws. 95. Section 49-5-60(b), 1976 South Carolina Code of Laws. 96. Section 49-5-30(4)(i), 1976 South Carolina Code of Laws. 257 97. Section 49-5-30(4)(ii), 1976 South Carolina Code of Laws. 98. Section 49-5-60(h), 1976 South Carolina Code of Laws. 99. Section 49-5-60(a-g), 1976 South Carolina Code of Laws. 100. Section 49-5-110, 1976 South Carolina Code of Laws. 101. Section 49-5-50{a)(2); 49-5-70(e){f), 1976 South Carolina Code of Laws. 102. Section 49-5-70(e), 1976 South Carolina Code of Laws. 103. Section 49-5-70(f), 1976 South Carolina Code of Laws. 104. Section 49-5-60(h)(8), 1976 South Carolina Code of Laws. 105. Section 49-5-120, 1976 South Carolina Code of Laws. 106. Section 49-5-50{a), 49-5-60(h), 1976 South Carolina Code of Laws. No capacity use area has, as of this writing, been formally declared in South Carolina. Two investigations covering seven coastal counties are in the final stages of completion. Saltwater encroachment or intrusion appears to be a significant problem in the coastal area as well as gen­ eral water level declines. A preliminary recommendation has been made to declare two counties and a portion of a third, representing the recharge area, as a capacity use area. 107. See, text at note 56. 108. See, Dewsnup, supra, note 15, p. 672. 109. See: "The Federal Water Pollution Control Act Amendments of 1972," (P.L. 92-500), 33 U.S.C. 1151 et seq.; "Federal Safe Drinking Water Act," (P.L. 93-523), 42 U.S.C. 300(f) et seq.; and their State counterparts: "South Carolina Pollution Control Act," Sections 49-1-10 et seq., 1976 South Carolina Code of Laws; "State Safe Drinking Water Act," Section 44-55-10 et seq., 1976 South Carolina Code of Laws. 110. Art. 14, Section 4, South Carolina Constitution states: All navigable waters shall forever remain public highways free to the citizens of the State and the United States without tax, impost or toll imposed; and no tax, toll, impost o~ wharfage shall be imposed, demanded or received from the owners of any merchandise or commodity for the use of the shores or any wharf erected on the shores or in or over the waters of any navigable stream unless the same be authorized by the General Assembly. 111. Section 49-1-10, 1976 South Carolina Code of Laws. 112. Rice Hope Plantation v. S.C. Public Service Authority, 126 S.C. 500, 528 59 S.E. 2d 132 (1950). 258 113. Id., p. 524. 114. See, State ex rel. Lyon v. Columbia Water Power Co., 82 s.c. 181, 63 S.E. 884 (1909). 115. Id., p. 187. 116. Id., pp. 186-87. 117. Section 49-1-10, 1976 South Carolina Code of Laws recites: All streams which have been rendered or can be rendered capable of being navigated by rafts of lumber or timber by the removal of accidental obstructions and all navi­ gable watercourses and cuts are hereby declared navi­ gable streams and such streams shall be common highways and forever free, as well to the inhabitants of this State as to citizens of the United States, without any tax or impost therefor, unless such tax or impost be expressly provided for by the General Assembly. If any person shall obstruct any such stream otherwise than as in this Title provided, such person shall be guilty of a nuisance and such obstruction may be abated as other public nuisances are by law. 118. South Carolina Streamboat Co. v. Wilmington, Columbia, and Augusta R.R., 46 S.C. 327, 333, 24 S.E. 337 (1895): "There can qe no doubt that an obstruction of any highway is a public nuisance, which, ordinarily, can only be redressed ·by indictment." See also Drews v. Burton, 76 S.C. 362, 57 S.E. 176 (1907). 119. State v. Water Power Co., 82 s.c. 181, 191-3, 63 S.E. 884 (1909). 120. Id., p. 193. 121. Free v. Parr Shoals Power Co., 111 S.C. 192, 196, 97 S.E. 243 (1918). 122. McDaniel v. Greenville-Carolina Power Co., 95 S.C. 268, 273, 78 S.E. 980 (1913). 123. Jones, supra, note 31, p. 197. 124. Key Sales Co. v. South Carolina Electric & Ga.s Co., 290 F. Supp. 8 (DSC 1968). 125. Rice Hope Plantation, supra, note 112, p. 529. Apparently the public purposes referred to include navigation, power production, health better­ ment, flood control, and reforestation of watersheds. See, Clarke v. S.C. Puhlic Service Authority, 117 S.C. 427, 440, 181 S.E. 481 (1935). 126. Rice Hope Plantation, supra, note 112, pp. 527-29. 259 127. Early v. S.C. Puhlic Service Authority, 228 s.c. 392, 407, 90 S.E. 2d 472 (1955). 128. Shands v. Triplet, 5 Rich. Eq. 76, 77-78 (S.C. 1852). See, E.W. Wald, "Navigability--Its Meaning and Application in South Carolina," 23 S.C. L. Rev. 28 (1971), for a more detailed discuss.ion of thi~ subject. 129. Section 49-1-10, for full citation see note 117 herein. The present wording dates back to 1853. 130. Manigault v. Ward, 123 F. 707, 714 (1903), affirmed in 199 U.S. 473, 26 S. Ct. 127, 50 L. Ed. 274 (1905). 131. See, "Permits for Construction in Navigable Waters," R. 19-100 et seq., 1976 South Carolina Code of Laws, as amended. 132. County of Darlington v. Perkins, __ s.c. __ , __ S.E. 2d <.Nov. 15, 1977), affirmed, on other grounds, a lower court decision which held that the state owned the beds of a non-tidal, navigable, ox-bow lake. 133. See, Heyward v. Farmer's Mining CQ., 42 s.c. 138, 152, 19 S.E. 963 (1894); State ex rel. Lyon v. Colwnbia Water Power Co., supra, note 114, pp. 188-89. Actually tJ:ie federal test of navigation, the so-called "com­ merce clause test," has apparently never been applied by the State courts. Two federal decisions, Manigault, supra, note 130, and Chisolm v. Caines, 67 F. 285 (1894), examples of pre-Erie Railroad application of a federal common law are not considered binding on local decisions. 134. State v. Pacific Guano Co., 22 S.C. 50, 76-77 (1884); Heyward, supra, note 133, p. 150. 135. Heyward, supra, note· 133. 136. Id., p. 150. 137. Id., p. 151. 138. Id. 139. Id., P· 155. 140. Id. 141. State v. Thompson, 2 Stroh. 12 (S.C. 1847). 142. Carey v. Brooks, 1 Hill 365 (S.C. 1833) • . See also State v. Cullum, 2 Spears 581 (S.C. 1844); State v. Hickson, 5 Rich. 447 (S.C. 1852); Mc­ Daniel, supra, note 122. From the mid-eighteenth to the mid-nineteenth century, dozens, if not hundreds, of declarations of navigability were made by the legislature. 143. See, B.W. Wyche, "The Law of Tidelands in South Carolina," appearing in Environmental Law in South Carolina: Selected Topics {Univ. of S.C. 260 Environmental Law Society, 1977); C. Leavell, Legal Aspeats of Ot.Jnership and Use of Estuarine Areas in Georgia and South Carolina (Inst. of Gov­ ernment, Univ. of Georgia, 1971); Clineburg and Krahmer, The Law Per­ taining to Estuarine Lands in South Carolina (Univ. of South Carolina School of Law, 1969); Logan and Williams, "Tidelands in South Carolina: A Study in the Law of Real Property," 15 S.C. L. Rev. 657 (1963); Horl­ beck, "Titles to Marshlands in South Carolina;" 14 S.C. -L. Rev. 288 (1962). 144. Cape Romain Land Imp. Co. v. Georgia-Carolina Canning Co., 148 s:c. 428, 146 S.E. 434 (1928). 145. Id., p. 438. The court viewed the law as settled that in navigable streams, ownership below the high water mark was in the sovereign unless specifically conveyed. Id., pp. 437-38. The dissent criticized the decision based upon fact that of the 34,000 acres alleged to have been granted by the State, only 6.2 acres were above the high water line, thus leaving the plaintiff title to very little land. 146. Riae Hope Plantation, supra, note 112; Lane v. MaEaahern, 251 S.C. 272, 162 S.E. 2d 174 (1968); State v. Hardee, 259 S.C. 535, 193 S.E. 2d 297 (1972); State v. Yelsen, 265 s.c. · 18, 216 S.E. 2d 876 (1975); State v. Griffith, 265 S.C. 43, 216 S.E. 2d 765 (1975). 147. See, Lane, supra, note 146. 148. See~ Cape Romain, supra, note 144; Heyward, supra, note 133; State v. Pinakney, 22 s.c. 484; State v. Pacific Guano Co., supra, note 134. 149. In addition to the cases cited in note 148 above, Coosaw Mining Co. v. South Carolina, 144 U.S. 550, 36 L. Ed. 537 (1892); Hardee, supra, note 146; Griffith, supra, note 146; Yelsen, supra, note 146. 150. Hardee, supra, note 146, p. 499. 151. Yelsen, supra, note 146, p. 82. 152. See, State v. Yelsen, 257 s.c. 401, 185 S.E. 2d 897 (1972). 153. See, Lane, supra, note 146. 154. County of Darlington, supra, note 132. 155. See, P. Lader, "Legal Aspects of Public Access to Beaches," appearing in Report of Conference on Marine Resouraes of the Coastal Plains (Coastal Plains Regional Commission, 1975), for a more complete discussion of public access. 156. See, State v. Randall, 1 Stroh. 110, 47 Am. Dec. 548 (1846). 157. See, State v. Miller, 130 s.c. 152, 125 S.E. 298 (1924); Savannah River Lwnber Corp. v. Bray, 189 S.C. 237, 200 S.E. 760 (1939); Tyler v. Guerry, 251 S.C. 120, 16 S.E. 2d 889 (1968). 261 158. See, County of Darlington, supra, note 132. Also, State v. The Beach Club (Charleston C.P., No. 75-CP-10-7, 1977). 262 WATER RESOURCE PROBLEMS (South Carolina) 1. Surf ace Water Law Water Withdrawal uses and allocation 5 Instream uses 4 Saline water intrusion - Land use relationships 3 Property damage 1 Ownership of submerged lands 5 Conjunctive use surface & ground wa.ter 4 Protection ground water recharge areas - Emergency use 2 Interbasin transfer 5 Interstate effects 4 Shoreline protection 2 Wetland protection 2 Public access 4 Reservation of reservoir sites 2 Public rights in navigable water 5 Water Administration Allocation standards & criteria Data bases Permit procedures Regulation & enforcement Agency structure & functions Please mark as to priority using following code: · 5 highest i l 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water - 3 - - - 3 3 - 3 4 - - - 3 - 3 - 2 - - - 4 - - - - - - - - 1 - - --i --i ··---j -i Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address the problems. 263 ADMINISTRATIVE SYSTEMS FOR WATER ALLOCATION, USE AND MANAGEMENT IN SOUTH CAROLINA Charles H. Randall, Jr. University of South Carolina Columbia, South Carolina INTRODUCTION Of the eastern coastal states, South Carolina is among those with the least sophisticated administrative and substantive law systems for dealing with natural resources problems. This is largely because the state responded relatively late to the pressures generated by population increases and indus­ trial development. Only in the area of nuclear development did South Caro­ lina attempt to take the lead,l an initiative that was arrested by the con­ cerns raised in the environmental decade, culminating in the withholding of an operations permit from the Barnwell nuclear reprocessing plant. Thus the crea­ tion of an umbrella type super-agency for administering problems of natural resources, operative in many states, has only reached the discussion stage in South Carolina. Statutes dealing with specific resource areas, and entrusting such areas to an administrative agency, are still few. Of course, the dif­ ference is one of degree and .not of kind; in those areas where federal ini ­ tiatives dominate resource planning, South Carolina agencies are involved as are those of other states in implementing the federalist policies implicit in such laws. Nationally, the water resources planning area has undergone dramatic shifts in emphasis in recent decades. For the planner as well as for the developer of resources, the period has been one of challenge and stimulus; constant demand for rethinking of basic premises; widening of horizons of matters demanding consideration; deepening of the approach to include an expanding range of scientific disciplines; and, at times, frustration and defeat. Major changes of the rules of the game in the middle of a play have been a repeated exper­ ience. In the 1950's, emphasis in water resources planning was on economic exploitation of the resource, with water quantity receiving primary attention. Proposals for water allocation statutes were given careful consideration in many states, including South Carolina, during this period, with a view to employing insights developed in western appropriation water law to either re­ place or supplement the governing riparian system. Much of the writing during this period is of current value, such as that of Dean Trelease of Wyoming on the utility of western concepts for solving east­ ern problems,2 and that of Dean Hines of Iowa on the Iowa statute,3 and Dean Frank Maloney of Florida on that state's responses to its severe water prob­ lems. 4 The conventional wisdom on water quantity needs and problems is well 264 stated in the exhaustive study of the United States Water Resources Council published in 1968.5 This report, using a 50-year time horizon, employed statistical extrapolation techniques to estimate future water quantity demands and to identify potential water shortage areas. This and other studies empha­ sized the dynamic growth in demand for water resources, and proposed planning policy to meet the demand. In the 1960's, water quality, a dimension not neglected in the Water Resources Council study, emerged as a consideration rivaling if not supplanting water availability as the central focus of water resources planning. With the per­ vasive Federal Water Pollution Control Act Amendments of 1972,6 much of the thought of users and agencies has been on compliance with effluent limitations and standards. The third dimension of resource use management came with the National Environ­ mental Protection Act of 19697 and companion statutes, with the environmental impact statement and other requirements they imposed. Additional restraints have been imposed upon resource use by such enactments as the Historic Pre­ servation Acts,8 the Endangered Species Act,9 and the Wild and Scenic Rivers Act. 10 Undoubtedly there have been excesses committed in the reach of some of these statutes, 11 but on balance these and other acts of the past decades are a proud chapter in American resources law, and hopefully are now a permanent dimension of the natural reso~rces planning scene. Oliver Wendell Holmes' famous statement, that "[a] river is more than an amenity, it is a treasure,"12 is often quoted by environmentalists. Not as familiar is the pragmatic sentence which followed, one addressed to water allo­ cation, the subject to which the case itself was addressed. Holmes said: ..• [A river] offers a necessity of life that must be rationed among those who have power over it. The theme of this conference is that the time has come once more to address on a regional level the problems of the availability of water supplies to the pressing demands of our society, and the adequacy of our legal and administra­ tive institutions to respond to those demands. The 1968 Water Resources Coun­ cil report ref erred to previously used a 50-year time horizon and employed statistical extrapolation techniques to estimate future'water demands and to identify potential water shortage areas. Though such extrapolation is risky, experience has too often been that the projected figures erred on the conserva­ tive side. We do not know what the future holds, but all indications still are that the Southeast may anticipate continued dynamic development, and increasing competition for water usage. In the terms of Dean Trelease, water users will demand increased legal certainty, physical certainty, and tenure certainty in water availability. 12 South Carolina has already been forced to utilize transbasin transfer of water, and the world has discovered the South Carolina coastline, with the water resources of the area the primary attraction. Kuwait investors have purchased an island near Charleston, and the German B.A.S.F. chemical corporation attempted unsuccessfully to secure necessary permits for a refinery in the Beaufort area. As these pressures mount, there is little doubt that government 265 will turn to administrative agencies to establish the framework which will both encourage and contain development in the public interest. SOUTH CAROLINA GOVERNMENT South Carolina has a legislature-dominated form of government, so much so that last week the Governor, James B. Edwards, threatened to file a lawsuit chal­ lenging legislative domination and executive exclusion from agency direction.13 His specific charge was that the Governor had practically no control over the $500 million annual budget of the Department of Social Services, but he also generalized that the legislative tendency is to create independent administra­ tive agencies. The legislature has tended also to approach cautiously plans to reshape agencies or to expand their substantive powers. However, the legis­ lature does react as do other states to federal stimuli--the new Coastal Tide­ lands and Wetlands Actl4 includes in its legislative findings the statement: A variety of Federal agencies presently operate land use controls and permit systems in the coastal zone. South Carolina can only regain control of the regulation of its critical areas by developing its own management program. The key to accomplishing this is to encourage the State and local governments to exercise their full authority over the lands and waters in the coastal zone. Many state agencies are involved in planning and decision making in water utilization, and any listing as to which have core responsibilities would be arbitrary. The core agencies might reasonably include the Department of Health and Environmental Control, with its supervision of the effluent permitting proc­ ess; the Water Resources Conunission, with special responsibility for ground­ water protection and general involvement in all water resources problems; the Land Resources ConservatiQn Commission, active in carrying out United States Department of Agriculture aided programs in soil conservation and watershed conservation; the South Carolina Coastal Council, administering the new Coastal Tidelands and Wetlands Act; and the Marine Resources Division of the Wildlife and Marine Resources Department. Proposals for reorganization of agencies usually center around the possibility of combining some or all of these agencies into a comprehensive natural resources agency. Most of these agencies are organized as commissions. The composition of the Water Resources Commission is not atypical. It includes three representatives from agriculture; three from industry; three from municipalities; one repre­ senting saltwater interests; and ex officio members from the state agencies for agriculture, environmental control, forestry, marine resources, land resources, development, highways, and Clemson University. Such an organiz~­ tion brings broad diversity of perspectives to bear on water utilization prob­ lems, including views from non-governmental members. STATE ADMINISTRATIVE PROCEDURE ACT Illustrative of the fact that South Carolina is still wrestling with e~rly _ stage problems in administrative systems is the fact that not until 1976 did 266 the state adopt a general State Administrative Procedure Act, which was exten­ sively amended in 1977. Despite the technical problems created by the require­ ments of the new statute, it is a long-needed instrument, and in time should bring greater regularity and clarity to the administrative process. The experience and precedents under the Model Actl5 and the Federal Administrative Procedure Actl6 will provide useful guides. The 1976 Actl7 closely followed the Model Act. It provided typical standards for rule-making and adjudication of contested cases, the major dichotomy in administrative law, and for judicial review. It established a State Register to include proposed as well as finally adopted documents and rules. The prior law provided that an agency regulation could be annulled by an Act of the Gen­ eral Assembly.18 The 1976 Act reversed this procedure, stipulating that rules and regulations were null and void unless approved by the General Assembly, except for emergency rules. This was a serious deficiency of the Act. The 1977 Act still provides for legislative control, but nob as severely applied as did the 1976 Act. Legislative overview of administrative action is not an unusual feature in administrative law; the idea draws upon English experience, and many states have adopted some kind of legislative overview.19 However, the South Carolina provisions appear to be both cumbersome and con­ fused. The typical administrative procedure statute divides formal agency action into the two categories of rule-making and adjudication of contested cases. The South Carolina statute makes this division, Article I being devoted to rule-making and Article II to adjudication. However, Article I appears to break the rule category down into sub-categories of "regulations" and "rules." "Regulation" is defined to include "each agency statement of general public applicability that implements or prescribes law or policy or practice require­ ments of any agency," including amendments or repeals of a prior regulation and excluding specific exemptions not material here. This is the definition of "rule" in the Model Act ·and in the 1976 South Carolina Act. "Rule" is not defined in Article I, although .a section of that Article prescribes procedures for issuing rules. "Rule" is defined in Article II, but the definition there is the 1976 Act definition of a "contested case," and the Article II defini­ tions are expressly declared to apply only to "this Article." Thus the Act creates an ambiguous category, a rule that is not a regulation. A "regulation" under the Act must not only undergo the usual public notice and public scrutiny requirements normal in administrative law, but must lie before the General Assembly for a period of 90 days, subject to disapproval by a joint resolution of that body. The regulation becomes effective at the end of the 90- day period, or upon concurrent resolution of the General Assembly. There are two important exceptions to this General Assembly review. Of most importance to water resources law is the provision that: General Assembly review shall not be required for regula­ tions promulgated to maintain compliance with Federal law including but not limited to grant programs. This provision should give resource agencies considerable freedom, although statutory constructional difficulties might be anticipated. The Act also pro- 267 vides for agency issuance of emergency regulations, which take effect imme­ diately. The provision requiring that regulations lie for six months before the General Assembly has caused some difficulty to agencies, especially since the law pro­ vides that the six-month period does not run while the General Assembly is not in session. To avoid this difficulty, agencies might be tempted to overuse the limited "emergency regulation" exception which appears to have two classes-­ regulations while the General Assembly is not in session or regulations to pre­ vent an imminent peril to the public health, safety, or welfare. The State Legislative Council is authorized to prescribe regulations for carry­ ing out the provisions of Article I of the Act. Much ambiguity would be removed if that agency would rule that the terms "regulation" and "rule" where used in Article I are synonomous. Another provision causing concern is that permitting a declaratory judgment action where the plaintiff alleges that a rule, or its threatened application, ,interferes with or impairs, or threatens to interfere with or impair, the legal right and privileges of the plaintiff. Questions of st~nding to sue may be anticipated under this provision. On balance, having a uniform administrative procedure act is a necessary step towards achieving for the state the sophisticated system of administrative law for resource agencies that the increasing complexity of South Carolina society demands. The legislative review provisions appear to go too far towards occasioning delay and confusion in administrative processes. Admittedly, these provisions reflect public vexation with the operation of administrative agen­ cies nationwide, federal as well as state. From the beginnings of administra­ tive law in this nation, that law has had its passionate opponents, including some very distinguished lawyers and scholars. Experience has indicated that these inconveniences are worth bearing in light of the benefits that have ac­ crued. Congress and state legislatures increasingly turn . to administrative law to supplement the traditional, judicially-enforced remedies of the Anglo­ American legal tradition. Hopefully, South Carolina can restudy the 1977 Act and meet the legislative goal of some effective review · power with an amended statute of greater clarity and effectiveness. STATE REORGANIZATION COMMISSION r Efficient structural organization of the governmental agencies of the state has been a subject of study for decades, with many careful reports urging broad reform. A distinguished South Caro~inian with wide experience in government has commented that it is the fate of a proposal for the reorganization of state agencies to be "received, talked about, filed and forgotten." While the record perhaps does not warrant quite so pessimistic a summation as this, in state as in federal reorganization of government, to apply the words of a successful law reformer, former Chief Justice Vanderbilt of New Jersey, reform "is not a sport for the short winded." In 1948, the State Reorganization Commission was created,20 a modest step towards the federal type "Hoover Commission" statute.21 The purpose is de- clared to be "to increase the efficiency of operations of such agencies and 268 functions to the fullest extent practicable, to promote economy and to reduce the costs of government." The Act declares that:22 Any overlapping of executive and administrative agencies of the State government or the functions thereof, duplica­ tion of effort and activities of such agencies, combination in any such agency of unrelated functions, diffusion of responsibility between one or more such agencies for the direction of effort and activities and the discharge of any functions of the State government, the separate existence and status of multiple or numerous agencies and functions having the same or related major purposes, the existence under different heads of agencies having the same or simi­ lar functions and the existence of agencies and functions not necessary to the efficient conduct of the operations of the State government are declared to be against the public policy of the State and are hereby prohibited. The Act more realistically might have said that some overlapping and duplica­ tion of agency function was entirely to be expected rather than being prohib­ ited, and that the function of the Commission was to make proposals to prevent such overlapping getting out of hand. Fortunately, the Act is not self-exe­ cuting; the Reorganization Commission is to make recommendations only. The Reorganization statute reflects again South Carolina's legislature-dominated form of government. The present composition of the Commission is of 19 members, 14 of whom are to be members of the House of Representatives or the Senate, and 5 appointed by the Governor. Under the original Act, a plan for reorganization could be enacted by passage ?Y each house of the General Assembly of a concur­ rent resolution, without reference to committees, with the bill having priority of consideration over all other legislative matters. In addition, the bill had to be approved or disapproved as a whole. Members of the Commission included specifically the Chairman of the Ways and Means Committee and Judiciary Com­ mittee of the House, and the Finance Committee and Judiciary Committee of the Senate. Thus, under the old law, enactment could be expedited. In 1972, the Act was amended, with all these provisions according a proposal of the Commission special treatment eliminated; the text now requires that "no reorganization plan shall be considered adopted unless it is passed as an Act.'' This would greatly extend the time of consideration for any proposed bill. The nature of the membership of the Commission, including leaders of the General Assembly, might increase the chances of passage of a recommendation from the Commission, as compared to an ordinary bill. However, if a proposal was con­ troversial, as any large scale merger of agencies might be, the change in procedure might prove fatal to passage. The gestation period for enactment of the coastal zone bill finally adopted in South Carolina was some 12 years. The current law also makes extensive amendment of any reorganization proposal that might emerge from the Commission a real possibility. An additional difficulty facing advocates of major reorganization of natural resources agencies of the state at this time is the priority which President Carter places upon the need to reorganize agencies at the federal level. Since 269 so much state agency effort must be exerted towards receiving and administer­ ing federally authorized or required programs, the argument will be made that the state had better await a clearer picture of the federal changes before embarking upon a major reorganization. Despite these difficulties, the Reorganization Commission in August, 1977, established a task force to study natural resources agencies and recommend changes therein. A similar study was undertaken in 1972, with proposals for extensive consolidation of agencies considered by the Commission. The result was the modest proposal for consolidation of the then existing Pollution Con­ trol Authority into the Department of Health, to form the agency now called the Department of Health and .Environmental Control. William Harsch, Director of President Carter's study of federal natural resources agencies, including the Departments of Interior and Agriculture and the Environmental Protection Agency, said at the inception of his efforts that he believes in the maxim, "If it's not broken, don't fix it," and will pursue that philosophy in his agency studies. This i~ a sound maxim, and the 1972 recommendation of the Reorganization Commission followed it. Central to the 1972 planning was the expectation that the proposed National Land Use Policy and Planning Assistance Act of 1973, passed by the Senate and supported by President Nixon at that time, would be enacted. Thus considera­ tion was given to combining all agencies significantly involved in land use planning, including water resources, into one agency. The proposal submitted by the State Development Board recommended that the Pollution Control and Environmental Health sections of the Department of Health and Environmental Control, the Water Resources Commission, the State Land Resources Conservation Commission, and the State Geologist be combined in one agency. Another study urged the inclusion of the Marine Resources division of the wildlife agency. Central to the perspective of the State Development Board's proposal was the desirability of removing so far as possible the burdens on industrial and other enterprises occasioned by multiple permit requirements. The Reorganiza­ tion Commission recognized this problem, but none of the proposals were ap­ proved in 1973. The 1977 Reorganization Commission gave thoughtful consideration to similar sweeping proposals. Consideration was given to merger of agencies dealing with natural resources, ranging from modest comhinat~on to the creation of a super agency. Alternatively, consideration was given to creating a new commission superimposed upon the existing agencies that would function in an advisory capacity to the legislature, reviewing legislation and situations involving more than one agency, and perhaps reviewing agency budgets. The final report to the legislature as of this time is one approving the concept of merger, but not recommending any particular means of achieving the idea. In the light of proposals to undertake extensive reorganization at the federal level, it would appear that this is an inappropriate time for South Carolina to reorganize its natural resources agencies, unless considerable dissatisfaction is felt with the present organization. This does not appear to be the case. The present structure is working well, perhaps with some duplication of effort, but not to the extent of providing a dis-service to the public. Since a major part of the state natural resources agencies' effort is in effectuating 270 programs arising out of federal statutes, a stronger indication of what the federal structure will be would provide a much firmer base on which to recast the South Carolina organization. WATER ALLOCATION PROBLEMS AND THE WATER RESOURCES COMMISSION Whatever organizational structure emerges for the South Carolina natural re­ sources agencies, the Water Resources Commission as a separate agency or a Water Resources Division within a larger agency will continue to be indis­ pensable. Such an agency alone can provide to government and to the public the perspective on adequacy of water availability and problems of water allo­ cation. As Mr. Guess has written:23 Water is vital for the continuation of life and our civi­ lization is dependent on it for our lifestyle. Our whole way of life, especially our economic base, is dependent on water. It's never too soon to plan for the increasing demands of the future. The Water Resources Commission administers the only current state statute specifically addressed to water allocation management--the Ground Water Use Act of 1969. 24 This statute addresses one vital dimension of the water alloca­ tion problem--the preservation of the valuable aquifers of the state, as renewable local, state, and national assets. It also provides protection to the users · thereof against unreasonable or nuisance uses. This Act contains a provision which on its face would seem to greatly weaken its utility. The central concept in invoking the Act is the finding by the Commission that an area is a "capacity use area." The Commission is authorized, however, to make such a finding only "upon the request of a county, municipality or other political subdivision of State government." Thus the initial decision is entirely local. The history of local government in preserving and wisely utilizing underground water resources is not an encouraging one. Too often, understanding of the scientific dimensions of the problem is lacking, and immediate needs are given priority at the expense of the long range best interest of the local community itself. Destruction or impairment of the aquifer or saltwater intrusion is the result. Perhaps in the context of South Carolina government, wherein state legislators continue to be influential in local government decision making, this provision of the Act will not prove fatal. However, the Act would be improved were the Commission to be given power to act on its own initiative, with local governmental interests, admit­ tedly deserving of respectful consideration, being accorded a full hearing. Local government is already represented on the Commission itself, and its views are not neglected. An even greater deficiency arises from the root problem of American water law. That law was already formulated before the working of the hydrologic cycle was fully realized, at least by the courts. The provision that the "existing com­ mon or statutory law with respect to the rights of the use of surface water in this State" is not changed or modified by the Act reflects the continuing impact of the legal separation of surface and ground waters. 271 Many provisions of the law indirectly influence water allocation decisions. Of first .importance is federal impacting activities. The work of the Corps of Engineers and the Department of Agriculture soil conservation projects, and the new coastal zone regulating process, are prime examples. Through the environ­ mental impact statement process, the broad impact of the particular project upon water availability can be assessed, particularly as such impact affects such broad public interests as natural resources conservation and fish and wildlife protection. The Water Resources Commission, among its other assigned duties, has been assigned by the Governor since 1970 the centralizing of the state's responsibilities in processing permit applications, summarizing the evaluation of the environmental impact of all water resources projects, and preparing the state's recommendations to appropriate agencies.25 Thus the Commission functions on the state level somewhat as the President's Council on Environmental Quality does on the federal level. Indirect water allocation is also found in the designation of waters under the Federal Wild and Scenic Rivers Act, 26 and under South Carolina's 1947 State Scenic Rivers Act.27 Under the former Act, the Commission has recommended several river stretches for inclusion. Under the state Act, the Commission has recently designated three river stretches as eligible for inclusion in the pro­ tected category. The legislative intent is to protect those river sections that possess ''unique and outstanding scenic, re~reational, geologic, fish and wildlife, historic and cultural values." The Act notes that these are diminish­ ing resources. After determination by the Commission that a river or section of a river has qualified for inclusion, the state, with the consent of the county, may accept donations of adjacent land in fee or in perpetual easement. State income tax deductions are granted, and federal income tax deductions would also be allowed subject to the stipulated limitations of section 170 of the Internal Revenue Code. The Commission is directed to "formulate compre­ hensive water and related land use plans" for included river stretches. Another area, one with potentially profound impact upon water development and allocation, is the expanded planning for river basin systems under the Federal Water Pollution Control Act Amendments of 1972.28 Under section 208, the State Department of Health and Environmental Control is preparing a state-wide waste treatment management plan. Section 208 was considered by the draftsmen of the Act to be a key provision in moving towards the 1983 clean waters goal, but in the early years of implementation, this section was restricted ,to areas "designated as causing substantial water quality problems." In National Resources Defense Fund v. Train,29 in 1975, Judge Smith of the District Court for the District of Columbia held that the section mandated state plans for all waters of the state, whether so designated or not, and ordered E.P.A. to prepare a timetable for compliance. South Carolina hopes to present its plan by November, 1978. Concurrently, section 209 of the Water Pollution Control Act authorizes funding for level B planning under the Water Resources Planning Act of 1965, with priority being assigned to areas with substantial water qual­ ity control problems. Level B is the regional or river basin studies. The Commission has begun the authorized level B study for the Yadkin-Pee Dee River Basin in North and South Carolina. In the level B studies lies the potential to bring into focus both water quantity and water quality problems, and to propose development programs to meet current and anticipated needs. 272 From these studies may come further illumination as to the state's need for a direct water management statute, such as the Mississippi or Iowa law provides. The General Assembly of South Carolina in 1953 by joint resolution approved appointment of a joint connnittee "to study the matter of the water policy of the State."30 The study was assisted by C.E • .. Busby of the U.S. Soil Conserva­ tion Service, Berkeley, California, who brought to the study a multi-disciplin­ ary background and broad familiarity with western concepts of water law. Dean Samuel L. Prince of the University of South Carolina School of Law also advised. The joint committee worked with a broad base of governmental and citizen sup­ port, and presented its report in 1954, including a proposed statute. The report admitted that this statute was but one element in a sound water resources program; both ground-water control and wise land use restraints were essential to a sound policy, but the statute limited itself to surface water regulation. The connnittee stated:31 The main purpose of the law now proposed is to provide the legal foundation for balancing supply and demand for our surface water resources. Obviously, no law can produce more water. It can only settle the question of how we will share and use our water • • • • Here, then, is a suggested way to remove the legal barriers to a solution of South Carolina's problem of growing water needs in the face of unused water. A doctrine, antiquated by a changing economy, will yield to one based on a realis­ tic approach to present and future water-use. Administra­ .tive machinery, subject to judicial review and recognizing existing individual rights, can be geared to the task of putting one of the state's major resources to the best use of all her citizens. · Essentially, the proposed Act guaranteed existing vested rights to use of water as of January 1, 1955, to be recorded by the claimants, and provided that any future acquisition of rights would be by appropriation, as under a western system. The western concept of beneficial use was employed to prevent waste­ ful use, and an applicant for water use would receive a permit which would secure his right to a license upon his completion of diversion works and beneficial use of water under the permit. Alt~ough this statute was not · adopted, it was influential in the drafting of the Mississippi and Iowa statutes. The proposed statute established priorities for water use in case of conflict between future applicants; precedence was given in order to domestic, munic­ ipal, irrigation, industrial, recreational, and water power uses. Of course, the focus of this statute, like the Federal Water Resources Planning Act of 1965, was on expanded water use; environmental protection as a competing cen­ tral concern had not as yet surfaced. While the South Carolina proposed statute had no provision for rationing water between licensees in times of drought or low seasonal fluctuation, the report stressed the problems created by the vagaries of nature. Since 1955, many state statutes have developed concepts for protection of water users and 273 allocation of water among them in times of water shortage. These provisions appear· to be great improvements over the South Carolina riparian system. Of particular interest is the Iowa concept of "established annual minimum flow." The Iowa statute gave administrative control to the Iowa Natural Resources Council and defined the concept of minimum flow as follows:32 "Established average minimum flow" means when reasonably required for the purpose of this chapter, the council shall determine and establish the average minimum flow for a given watercourse at a given point thereon. The "average minimum flow" for a given watercourse as used in this chap­ ter shall be determined by the following factors: (a) average of minimum daily flows occurring during the preced­ ing years chosen by the council as more nearly representa­ tive of changing conditions and needs of a given drainage area at a particular time; (b) minimum daily flows shown by experience to be the limit at which further withdrawals would be harmful to the public interest in any particular drainage area; and (c) those minimum daily flows shown by established discharge records and experiences to be definitely harmful to the public inter.est. Such determina­ tion shall be based upon available flow data supplement­ ed, when available data are incomplete, by whatever evi­ dence is available . . . . In granting a permit, the Council must consider the effect of the proposed use on natural flow. Even use of diffused surface waters appears subject to regu­ lation if such use impairs established average minimum flow, to the detriment of water users below. Granting of an excessive number of permits for ~onsumptive use of water, such as irrigation, might threaten the average minimum flow of a stream. It would seem, however, that a greater threat to average minimum flow would be a period of extended drought. A provision permitting the Council to act by rationing or apportioning water withdrawal in such a situation would be most useful. The Iowa statute contains a provision that ~ppears to authorize the Council to take such action, at least against holders of permits: By written order to the permittee, the water commissioner may forthwith suspend operations under a permit if he finds it necessary in an emergency to protect the public health or safety or to protect the public interests in lands or waters against imminent danger of substantial injury in any manner or to any extent not expressly authorized by the permit, or to protect persons or property against such dan­ ger, may require the permittee to take any measures to prevent or remedy such injury; provided, that no such order shall be in effect for more than thirty days from the date thereof, without giving the permittee at least ten days written notice of such order, and an opportunity to be heard thereon. 274 It would appear that eventually, if economic growth is sustained, a South Caro­ lina water allocation statute will be a necessity. With the passage of time, the existing riparian ordering of rights appears less suitable to the needs of the state. Whether the time has come again to address these problems with a proposed statute lies in the judgment of the Water Resources Commission, the State Development Board, and other governmental entities, and the municipal, agricultural and industrial water users of the state. If the time has come, there exists many more state statutes, and the experience of administrative agencies under them, to study as models to guide state thinking. RECOMMENDATIONS 1. The South Carolina Administrative Procedure Act requires further study to determine its effect upon resources agencies of the state and to clarify its language. 2. Reorganization of state agencies in natural resources should be undertaken with caution pending decision at the national level as to the organizational structure for federal agencies. 3. The South Carolina Ground Water Use Act is a useful Act, but con­ sid.eration should be given as to the need for determination at the state level .of the existence of critical areas of with­ drawal. .4. Consideration should be given as to whether South Carolina at this time needs a statute governing use of surface water to replace the riparian system or to create greater certainty as to water usage within the concepts of that system. Consideration also should be given to whether broad support from governmental agencies and. the public would be forthcoming if such a statute were proposed. FOOTNOTES 1. Code of Laws of South Carolina, 1976, sections 13-7-10 et seq., enacted in 1961. 2. "A Model State Water Code for River Basin Development," 22 Law & Cont. Probs. 155 (1957); "Model Water Code, the Wise Administrator and the God­ dam Bureaucrat,'.' 14 Nat. Res. J. 207 (1974). 3. "A Decade of Experience Under the Iowa Water Permit System," 7 Nat. Res. J . 499 (1967), 8 Nat. Res. J. 23 (1968). 275 4. Model Water Code, with Corrmentary (1972), with Richard C. Ausness and J. Scott Morris; "Emerging Patterns for Regulation of Consumptive Use of Water in the Eastern United States," 43 Ind. L. J. 383 (1968), with Sheldon J. Plager. 5. U.S. Water Resources Council, The Nation's Water Resouraes (1968). 6. 33 U.S.C. 1251 et seq. (P.L. 92-500). 7. 42 u.s.c. 4341. 8. Antiquities Act of 1906, 16 U.S.C. 431-433; National Historic Preserva­ tion Act of 1966, 16 U.S.C. 470 et seq. 9. Act of 1973, P.L. 93-205. 10. 16 U.S.C. 1274 et seq. 11. The government considers Hill v. TVA, 549 F. 2d 1064 (6 Cir. 1977) on certiora~i to the Supreme Court, to be such a case. This is the case in which the Court ordered a halt to the Telli~o Dam project because of the threat to the snail darter, an endangered fish species. 12. New Jersey v. New York, Z83 U.S. 336 (1930). 13. The State (Columbia, S.C.), Surratt, Warning of Suit Not Worrying Legis­ lators, April 11, 1978, p. 1-B, col. 5. 14. Code of Laws of South Carolina, 1976 secs. 48-39-10 et seq. 15. Uniform Law Corrmissioners' Revised Model State Administrative Procedure Aat (1961). 16. 5 u.s.c. 551-559 (1967). 17. Code of Laws of South Carolina, 1976, secs. 1-23-10 et seq. 18. Id.,sec. 1-1-210. 19. Cooper, State Administrative Law, 221-30 (1965). 20. Code of Laws of South Carolina, 1976, secs. 1-19-10 et seq. 21. 5 U.S.C. 901 et seq. 22. Code of Laws of South Carolina, supra, note 20, sec. 1-19-20. 23. Palmetto Waters, Vol. 3, No. 4, April 7, 1977, p. 1. 24. Code of Laws of South Carolina, 1976, secs. 49-5-10 et seq. 25. "Annual Report of the South Carolina Water Resources Commission for Fis­ cal Year 1976-1977," p. 16. 276 26. Supra, note 10. 27: Code of Laws of South Carolina, 1976, secs. 51-5-10 et seq. 28. Supra, note 6. 29. 396 F. Supp. _1386, 7 E.R.C. 2066 (D.C., D.C., 1975). 30. "A New -Water Policy for South Carolina," Report of the Water Policy Com­ mittee to the General Assembly, 1954. 31. Id., pp. 27, 35. 32. Code of Iowa, 1971, sec. 455 A 1. 277 WATER RESOURCE PROBLEMS (South Carolina) 1. Surf ace Water Law Water Withdrawal uses and allocation Instream uses Saline water intrusion Land use relationships Property damage Ownership of submerged lands Conjunctive use surface & ground water Protection ground water recharge areas Emergency use Interbasin transfer Interstate effects Shoreline protection Wetland protection Public access Reservation of reservoir sites Water Administration Allocation standards & criteria 5 Data bases 5 Permit procedures 3 Regulation & enforcement 5 Agency structure & functions 5 Please mark as to priority using following code: 5 highest ~ 1 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water 1 5 1 4 1 1 1 2 1 2 Rating of 4 or 5 indicates a belief that the problem is considered serious and that l egal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address the problems. 278 Tennessee 279 TENNESSEE WATER LAW PROBLEMS Vincent A. Sikora Assistant Professor East Tennessee State University Johnson City, Tennessee INTRODUCTION Tennessee's water law has developed in reaction to specific problems and has not been derived from a comprehensive, integrated master plan. The law con­ trolling the allocation, use, and management of water resources is a composite of common law and statutes. The connnon law of riparian rights for surface waterl and of reasonable use for . ground water2 has been applied by the courts. On the other hand, the state claims ownership of all waters in the state in public trust3 but must avoid regulation that extends to "taking" of private water rights without compensa~ion.4 The purpose of this paper is to evaluate the adequacy of Tennessee's water law in coping with present and anticipated water resources probl'.ems. STATUS OF INFORMATION OF TENNESSEE'S WATER LAW An initial problem regarding an evaluation of Tennessee's water law is that little information is available as to its sta.tus. There have 1be~n only · thr.ee publications on Tennessee's water law5 and none of these was a critical examination of the law. On the whole, each was merely a shallow re-statement of what the courts have said without me~iculous scrutiny for commonly occur­ ring dicta. Moreover, the most recent article was published in 1960 and therefore lacks consideration of statutory and court . changes in the law occurring in the past 18 years. Also, none of the publications considered the substantial effect of federal law and programs on water rights in Tennessee. The lack of information on Tennessee's water law is a fundamental and pervasive problem that affects all the other aspects of water allocation, use, and man­ agement. This problem inhibits the development of a logical, rational~ and comprehensive water policy by the Tennessee Legislature. It inhibits economic development because of uncertainty of legal rights which cause fear in capital investors. Research is needed to define and describe the exact nature of water rights in Tennessee as determined by federal and state statutory and common law. COMMON LAW WATER RIGHTS Tennessee's courts became involved with refereeing water rights disputes as 280 early as 1838. 6 There was a rash of court cases in the 1800's and early 1900's, principally over navigation rights.7 These cases were in response to problems affecting the state during the early stage of its development when industrial activity was limited, the population was less than two million people, and farming was still being performed on small plots. However, the case law made during this period still is in effect today and will be applied, in the absence of legislation, to modern water resource problems. This situa­ tion is particularly distressing because courts traditionally are intransigent to changes in property law and sometimes cling irrationally to outmoded laws concerning property rights. In mitigation of the concreteness of property law, however, the riparian system for surface water and the reasonable use system for ground waters are flexible and adaptable to new conditions. Yet this argument is misleading and only exposes another problem. It is misleading because the flexibility is contained in the variability of outcome where the doctrine is applied to the infinite number of combinations of factual situations. In other words, the parties to a particular controversy involving water rights in Tennessee will be uncertain as to what the court's decision · will be because each decision will be based on the individual factual circumstances and on the court's analysis of the flexible criteria. This is "ad hocracy," and the associated uncertainty inhibits cap­ ital investment in projects which require usage of water resources. Moreover, the riparian property owner's .right to water is vested and need not be used, thus magnifying the uncertainty of water availability by creating unidentified and unquantified water rights. There may ·be a more fundamental question regarding court dictated water rights; whether the courts are the proper forum to decide such a basic public policy issue. Certainly the courts are not a democratic institution, nor were they intended to be such. If the courts control the use and development of Tennes­ see's water resources, historical precedents will be the cornerstone of manage­ ment. Also, resolution of· potential future conflicts will not be considered by the courts until an actual "case" or "controversy" exists. Courts are not planning bodies; they merely resolve existing conflicts. And the law made by the court which sets the state's policy is confined to the issues in a case which determine the result. All other ' connnents and pronouncements are "free gratis" dicta which is not binding as precedent and therefore not the law.9 The effect of Tennessee's common law of water rights is the creation of uncer­ tainty in capital investors' minds; therefore full economic development may be inhibited. Moreover, the historical legal doctrine was created by and is main­ tained through the governmental institution which is the least democratic and may be the poorest equipped to deal with such a monumental public policy deci­ sion--the courts. Research is needed to identify and define the most efficient and effective role of the judicial system in water resource allocation, use, and management. LEGISLATIVE WATER RESOURCE MANaGEMENT The Tennessee General Assembly in 1971 declared that all waters in Tennessee are property of the state held in public trust. 10 In order to fulfill this 281 trust, the state should plot a course for the optimal development, use, and management of Tennessee's water resources. This utilization of the planning mechanism is a natural outgrowth of the legislative body's ability to antici ­ pate future problems and to plan for and im~lement methods to eliminate, or at least mitigate, the problems. Before a rational, comprehensive planning activity begins, the planner must have a goal and objectives derived from an express public policy. The State of Tennessee does not have such a policy. A Water Policy Commission was created in 195511 and a water policy document was prepared.12 Many of the problems identified in this paper were also noted in the policy document, but, unfortunately, only the recommendation to create a Division of Water Resources in the Department of Conservationl3 was executed by the Legislature, and even this recommendation was only partially followed. 15 Without a master plan ta follow, governmental controls became random responses to existing crises. This situation is self-evident from a review of the Tennessee statutes.16 Statutes concerning water resources are scattered throughout the Tennessee Code,17 have been enacted on a scattering of dates,18 and are, in many cases, inconsistent or contradictory.19 Moreover, ·many water resources management issues are not even addressed in the statutes. These gaps await another seri ­ ous episode of water resource conflicts before the Legislature will be moti­ vated to consider an isolated, spontaneous plugging job. The Tennessee General Assembly, the foremost public policy-making body in the state, has provided a minimum of leadership in resolving the problems of water resources management. The valuable water resource, by its unregulated develop­ ment, is racing like a ship without a helmsman on a collision course with the future population and economic growth of this state. A total, comprehensive review of the water law in Tennessee is needed, after which a unified water code, embodying the appropriate legislation to attain the pre-determined water resources goals and codifying relevant coIIDllon law, sh0uld be adopted. The administrative agency charged with implementing ·the water resources program must be given sufficient power to deal with the problem to be managed, and should not be buried in a large and divergent department.20 Also, the agency must be adequately funded and staffed.21 Research is needed to develop water resources policy alternatives for Tennes­ see. This includes describing the existing framework of common law and statutory water law; identifying gaps in the legal structure; preparing a unified, integrated, and consistent statutory water code which codifies coIIllllon law and succintly describes the state's water policy and the means chosen to attain the water resources goals; and delineating the potential role, tasks, and powers of the administrative agency chosen to oversee the water resources program and also the role of judiciary. WATER LAW PROBLEM MATRIX A matrix has been developed to graphically illustrate water resource problem areas22 (TabZe 1). The following discussion is keyed to that matrix. Another key is that Tennessee follows riparianism for surface water and the reasonable use doctrine for ground water. 282 Withdrawal Uses and Allocation One-problem regarding withdrawal uses is the question of water use priorities to resolve conflicts over surface water rights. It appears that domestic uses have top priority, and a riparian may consume as much of the water as needed for this purpose regardless of the effect on a downstream riparian.23 All other riparians would be .on equal footing, with the final determination based on the unique facts of the case.24 A special classification may possibly have been made for withdrawal of water for municipal uses. In American Assoc., Inc. v. Eastern Kentucky Land Co. 25 the court refused to enjoin the diversion of water by the Town of Cumberland Gap. It was charged that this diversion reduced by nearly half the water flow of Gap Creek to lower riparians. Also, municipalities26 and water companies, 27 subject to regulation by the Public Utility Connnission, 28 have been given eminent domain power in order to condemn water rights. Tennessee has not decided upon a priority system among water users, nor among users with condemnation power. The only requirement is that persons, except public water systems, withdrawing 50,000 or more gallons per day of water from any source must register with the Division of Water Re­ sources. 29 If the conflict is over ground-water rights, the outcome may be the same as if surface water rights were the issue because the American reasonable use rule is similar to the riparian rights doctrine. In the leading Tennessee case,30 a railroad successfully sought an injunction to stop a neighboring land owner from pumping ground water until the railroad's spring dried up. However, no priorities were stated, and the only limitation was that the water be used for a reasonable and beneficial use.31 The statutes for condemnation of water .rights by municipalities and water companies make' no distinction between sur­ face and ground water. Yet well drillers are regulated32 and must submit a report on each well completed. Although Tennessee has no administrative program for allocating water rights, the Division of Water Resources does have the responsibility of "creating and defining the rights of respective competing users of water resources of the state • • • [and the] determination of the waters that should be reserved for general public purposes ..•. "34 Unfortunately these assigned responsibili ­ ties are not matched with a corresponding delegation of power, but the state does have a general prohibition against interferen~e with another's waters.35 Another issue concerns the place of water use. The Tennessee courts have per­ mitted the diversion of surface water to riparian and nonriparian36 property and ground water to overlying37 and non-overlying38locations. Whether the water may be used outside the watershed has never been litigated in Tennes­ see. 39 There appear to be no statutory restrictions regarding the place of water usage. Municipalities40 and water companies41 have been given the power of eminent domain to condemn right-of-ways for water lines. How much water may be used? If the water is to be used for a domestic purpose, as much water may be withdrawn and consumed as is needed to satisfy this pur­ pose. 42 All other riparian~,43 and those persons with ground water rights, 44 are vested with correlative rights. Under the correlative rights concept, each landowner with rights to water may use and consume some water for a 283 beneficial purpose as long as the use is reasonable in itself and in relation to the other users. For surface waters, reasonableness will be dependent on the-nature and capacity of the stream, the purpose of the diversion, and other circumstances of the case.45 For ground waters, the considerations appear to be similar.46 It has also been said, though not held, that those waters diverted and not used must be returned to the stream.47 Instream Uses The chief instream uses are dam construction, navigation, and wildlife. Dams have been sanctioned as a reasonable use of water rights.48 The owners of dams in Tennessee, though, are responsible for flooding upstream property,49 for preventing accretions to downstream propertl,50 and for destruction of downstream property by opening the floodgates.5 Also, dams must not interfere with navigation.52 · Navigation may be the priority instream use of water. It is well recognized that Tennessee has a policy to encourage navigation.53 Besides the prohibition against dams interfering with navigation, a permanently docked house boat,54 a fish trap, 55 and logs56 are all prohibited from interfering with navigation. Navigable waters pave been declared to be public highways57 and cannot be ob­ structed. 58 Nor can an indiv~dual divert water from a navigable stream to a mill if it interferes with navigation.SY The supervision of navigable water­ courses and navigation has been delegated to the county courts60 and the De­ partment of Transportation,61 respectively. All wildlife in Tennessee belongs to the state and may not be taken except as directed by the state.62 An individual who owns the whole bed of a stream or lake also has the exclusive right to the fish therein, but he cannot detain the fish if ·he only owns part of the bed. 63 No one may fish on another's land without the owner's permission.64 The Wildlife Resources Agency manages Ten­ nessee's fishing program and may condemn water rights to "protect, propagate, increase, preserve, and conserve" the fish.65 All the legislation on instream uses has been enac·ted without an integrated, consistent public policy on water resources. The Division of Water Resources has been directed to determine which waters "should be reserved for . . . navi­ gation, sanitation, recreation, maintenance of fish and aquatic life, the main­ tenance of unusual scenic features and other public purposes."66 The Division is still working on a state water plan. Land Use Relationships Besides the restrictions on who may use water and where it may be used,67 the only other recognized relationship between water and land use is the preserva­ tion of agricultural, forest, and open space for water quality.69 Also, the Water Quality Board is to consider existing and potential land uses when determining water quality standards. 70 Tennessee has given landowners the opportunity to form watershed districts. 71 284 A watershed district has the power to manage soil and water resources in the district and to condemn water rights.7 2 The operation and effect of these dis­ tricts has never been studied. Ownership of Submerged Lands This topic is well defined and should present no problem. An individual owns that amount of property specified in his deed, including banks and bed, unless the watercourse is navigable.73 If the watercourse is navigable, the bed and the banks to low water mark belong to the state74 and are inalienable because they are held in public trust.75 However, the federal government may exercise its navigation servitude up to the high water mark.76 Conjunctive Use of Surface and Ground Water The law in Tennessee separates surf ace from ground water and attaches separate rights to each source.77 The statutes treat all waters the same for pollution contro1,78 registration of withdrawals,79 and authorization to condemn water rights, but no attempt is made to integrate the rights to water from each source. The lack of unified water rights in accordance with the water cycle is a sig­ nificant problem. The dual system aggravates the conflict over water use priority and inhibits comprehensive water resource planning. Protection of Ground Water Recharge Areas Tennessee has neither case law nor specific statutes on this subject. Some degree of ~rotection is provided by the requirement for permits to control pollution; 0 by criminal prosecution for nuisances;81 by regulation of wells;82 and, possibly, by formation . of watershed districts.83 However, these diffused regulations are insufficient to inadequately prevent contamination of ground water through its recharge area. Interbasin Transfer Conunon law riparianism generally prohibits interbasin water transfers, but this issue has yet to be decided in Tennessee. There is no statute either author­ izing or prohibiting such diversions. Until a firm state policy is developed on interbasin transfers, there is little that the Division of Water Resources can accomplish in this area. This issue must be re~olved in order for the Di­ vision to effectively complete its comprehensive water plan for Tennessee. Interstate Effects Tennessee is active in an interstate compact to control water pollution84 and to develop a waterway,85 but is not actively involved with interstate water 285 allocation either by statutes or case law. This, too, is a problem that requires research, both as to the need for interstate cooperation and as to the·most effective means to accomplish such an objective. Wetland Protection The Tennessee General Assembly has declared it a public policy to drain swamp lands86 and has granted 7rivate individuals a right to drain their swamps through another's land.8 County courts are empowered to build levees to pre­ vent flooding,88 and watershed districts may drain swamps.89 Some wetlands protection is afforded though the power of the Water Quality Board to adopt water quality standards.90 Also, the Department of Conservation may condemn property of "unusual features"91 or "swamps,"92 and the Wildlife Resources Com­ mission is authorized to "protect, propagate, increase, preserve, and conserve the wildlife."93 Obviously, Tennessee does not have a comprehensive, con­ certed effort to preserve wetlands, and this omission will significantly affect the planning for statewide water quality. Federal Activities The lack of coordination within the federal government, and between the agencies and the state may, perhaps, be the most significant problem in resource law and administration.94 The General Accounting Office (GAO) identified four priority considerations: 1. Are existing water resource plans and programs adequate to meet the competing demands for water uses?95 2. Do water agencies and industry have conservation and reuse programs that reduce demand and make more ef fi ­ cient use of water supplies?96 3. How can the constraints of water laws and rights on meeting priority water needs be effectively resolved?97 and, 4. Do federal agencies benefit-cost analyses fully and realistically consider the beneficial and adverse effects of water resource projects?98 federal water has On each of the above and on five additional issues,99 GAO reported several unanswered questions which require additional research. Until the federal government gets its house in order, many state programs may be frustrated by confusion and inconsistency among federal agencies. This is especially true in Tennessee because of the sizeable water resource management programs by the Ten­ nessee Valley Authority, Corps of Engineers, Environmental Protection Agency, and other federal agencies. 286 FOOTNOTES 1. - Stuart v. Clark's Lessee, 32 Tenn. (2 Swan) 9 (1852). 2. Nashville, C & St. L Ry. v. Riekert, 14 Tenn. App. 446, 89 S.W. 2d 889 (Ct. App. 1935), aert. denied, 89 S.W. 2d 889 (Tenn. Sup. Ct. 1936) [here­ inafter cited as Nashville Ry.]. 3. Tenn. Code Ann. secs. 70-325, 70-326 (14) (1976). 4. Tennessee Constitution art. I, sec. 21. See, Miller v. State, 124 Tenn. 293, 137 S.W. 760, 761 (1910) [hereinafter cited as Miller]. 5. Public Administration Service, Publia Water Poliay in Tennessee (1956); Marquis, Freeman, and Heath, "The Movement for New Water Rights Laws in the Tennessee Valley States," 23 Tenn. L. Rev. 797 (1955); Comment, "Water Rights in Tennessee," 27 Tenn. L. Rev. 557 (1960). 6. Neal v. Henry, 19 Tenn. (Meigs) 17 (1838) [hereinafter cited as Neal]. 7. See also, Comment, "Water Rights in Tennessee," 27 Tenn. L. Rev 557, 567- 68 (1960) [hereinafter cited as "Tenn. Water Rights"]. 8. But af. Marquis, Freeman, and Heath, "The Movement for New Water Rights Laws in the Tennessee .Valley States," 23 Tenn. L. Rev. 797, 802-805 (1955) [hereinafter cited as "New Water Rights Laws"]. 9. See, Cox v. Howell, 108 Tenn. 130, 65 S.W. 868 (1901) [hereinafter cited as Cox]. 10. Tenn. Code Ann. secs. 7.0-325, 70-326 (14) (1976) ~ 11. 1955 Tenn. Pub. Acts, ch. 82. 12. Public Administration Service, Public Water Policy in Tennessee (1956) (hereinafter cited as Water Poliay]. 13. Id., 150-159. 14. Tenn. Code Ann. secs. 70-2001 (1976). 15. Compare, Water Policy 150-159 with Tenn. Code Ann. secs. 70-2001 to 70- 2005 (1976). 16. See also, Water Policy 27. The Tennessee Water Policy Commission itself was the result of a "drought" from 1952-1954, "New Water Rights Laws" 797, 799. 17. E.g., Tenn. Code Ann. 4, 5, 11, 12, 39, 51, 53, 65, 67, 70. 18. E.g., Tenn. Code Ann. sec. 4-102 in 1858, sec. 5-930 in 1965, sec. 11-1408 in 1970, sec. 12-228 in 1963. 287 19. E.g., compare, Tenn. Code Ann. sec. 70-2530 (1976) and sec. 70-2505 (1976) with Tenn. Code Ann. sec. 70-111 (1976), sec. 70-1818 G (1976) and sec. 53-802 (1977). 20. But see, S. 152, 90th Gen. Ass., 1st Sess. (1977), withdrawn March 14, 1977, ("An Act to transfer the water resources division from the Depart­ ment of Conservation to the Department of Public Health and to redesignate it as the water resources section within the division of water quality control .•• "). 21. Compare, Division of Water Resources personnel and funding in 1976-1977 of 16 and $427,678 respectively with Division of Water Quality Control per­ sonnel and funding in 1976-1977 of 178 and $3 million respectively. 22. Virginia Water Resources Research Center, Southeast Conference on Legal and Administrative Systems for Water Allocation and Management 2 (1977). 23. Cox at 869 (dictum). 24. Id., 65 S.W. at 869 (dictum). 25. American Assoc., Inc. v. Eastern Kentucky Land Co., 2 Tenn. Ch. Ap. 132 (Ch. App. 1901), affirmed, 2 Tenn. Ch. App. 132 (Tenn. Sup. Ct. 1901) [hereinafter cited as American Assoc.]. 26. Tenn. Code Ann. secs. 6-1401, 6-1410 (1971). 27. Id., sec. 65-2701 (1976). 28. Id., sec. 65-401, 65-404. 29. Id., sec. 70-2005 (1976). This is not a control program but a mere administrative record keeping operation. 30. Nashville Ry. 31. id., at 896-97. 32. Tenn. Code Ann. sec. 70-2302 (1976). 33. Id., sec. 70-2303. 34. Id., sec. 70-2003(d) and (e). 35. The Division's only power is to register diversions of over 50,000 gal­ lons. Tenn. Code Ann. sec. 70-2004. The general prohibitions are con­ tained in Tenn. Code Ann. secs. 39-4802 (1975). 36. Tennessee Coal, Iron and R. Co. v. Paint Rock Flume and Transp. Co., 128 Tenn. 277, 160 S.W. 522 (1913); American Assoc. 37. Nashville Ry. 288 38. Id. 39. But cf. Id. (allowed usage for trains which trains must have travelled beyond the watershed). 40. Tenn. Code Ann. secs. 6-1401, 6-1410 (1971). 41. Id., sec. 65-2701 (1976). 42. Cox at 869 (dictum). 43. Id., at 869 (dictum). 44. Nashville Ry. at 896-97. 45. Cox at 869 (dictum). 46. See, Nashville Ry. at 896-97. 47. Webster v. Fleming, 21 Tenn. 518, 519 (1841) (dictum). The fact that much of the diverted water was returned to the stream was a consideration in the American Assoc. case but was not a basis for the decision. 48. Milter. 49. Neat. 50. Tallassee Power Co. v. Clark, 77 F. 2d 601, 604 (6th Cir. 1935). 51. Tennessee Elec. Po.wer Co. v. Robinson, 8 Tenn. App. 396 (Ct. App. 1928), cert. denied, 8 Tenn. App. 396 (Tenn. Sup. Ct. 1928). 52. Irwin v. Brown, 3 Tenn. Cas (Shannon) 309 (1889); Miller. See, Tenn. Code Ann. sec .. 39-4806 (197 5) at 7 62-63 .. 53. Id., 3 Tenn. Cas. at 310; 137 S.W. at 763. 54. Pilcher v. State, 20 Tenn. (1 Humph.) 524 (1840). 55. Stwnp v. McNairy, 24 Tenn. (5 Hump.h.) 363 (1844). 56. Sigler v. State, 66 Tenn. (7 Baxt.) 493 (1874). 57. Tenn. Code Ann. sec. 70-101 (1976). 58. Id., secs. 70-107, 70-114, 39-2901 (1975). 59. Id., sec. 70-108 (1976). 60. Id., secs. 5-521 (1971) and 70-102 to 70-105 (1976). 61. Id., secs. 70-201 (1976), 70-2401 (1976). 289 62. Id., sec. 51-401 (1977). 63. - State v. West Tenn. land Co., 127 Tenn. 575, 158 S.W. 746, 752 (1913). 64. Tenn. Code Ann. sec. 51-407 (1977). 65. Id., sec. 51-124. . 66. Id., sec. 70-2003(e) (1976) . 67. See, Section IV A s·upra. 68. Tenn. Code Ann. secs. 67-650 to 67-658 (1976); and sec. 11-1716 (1973). 69. Id. 70. Id., sec. 70-328 (1976). 71. Id., sec. 70-1803. 72. Id., sec. 70-1818. . 73. Elder v. Burrus, 25 Tenn. (6 Humph.) 358 (1845). 74. Id. 75. State v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746, 752 (1913). 76. United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592. 77. See, Tennessee Elea. Power Co. v. Van Dodson, 14 ·Tenri. Ch. Ap. 54, 57-58 (Ch. App. 1931), aert. denied, 14 Tenn. Ch. App. 54 (Tenn. Sup. Ct. 1932); Neal; but af. Tymannus v. Williams, 26 Tenn. (7 Humph.) 80 (1846) (court refused to hold downstream dam owner liable for flooding an upstream spring that was practically adjacent to the stream and probably hydro­ logically interrelated because the state had granted land to the riparian first and the subsequent upstream spring owner's grant from the state was burdened with the dam's flood). 78. Tenn. Code Ann. sec. 70-326 (14) (1974). 79. Id., sec. 70-2005. 80. Id., sec. 70-330. 81. Id., secs. 39-4801, 39-2904, 39-2906 (1975). 82. Id., secs. 70-2301-2310 (1976). 83. Id., sec. 70-1818. 84. Id., secs. 70-1901 to 70-1912 (Tennessee River Basin Water Pollution Con­ trol Compact). 290 85. Id., secs. 70-2101 to 70-2104 (Tennessee-Tombigbee Waterway Development Compact). 86. Id., sec. 70-501. 87. Id., secs. 70-502 to 70-506. 88. Id., sec. 70-601. 89. Id., sec. 70-1818. 90. Id., sec. 70-328. 91. Id., sec. 11-105 (1973). 92. Id., secs. 11-1705, 11~1710. 93. Id., sec. 51-124 (1977). 94. See, U.S. General Accounting Office, Water Resouraes Planning, Management, and Development: What Are the Nation's Water Supply Problems and Issues? 95. Id., at 17-26. 96. Id., at 26-32. 97. Id., .at 32-37. 98. Id., at 37-42. 99. Id., at 43-46. 291 WATER RESOURCE PROBLEMS (Tennessee) 1. Surf ace Water Law Water Withdrawal uses and allocation 4 Instream uses 5 Saline water intrusion Land use relationships 4 Property damage Ownership of submerged lands Coniunctive use surface & ground water 5 Protection ground water recharge areas 5 Emergency use Interbasin transfer 4 Interstate effects 4 Shoreline protection Wetland protection 3 Public access Reservation of reservoir sites Federal activities 5 Water Administration Allocation standards & criteria Data bases Permit procedures Regulation & enforcement Agency structure & functions Please mark as to priority using following code: 5 highest 4 l 3 2 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water 4 1 4 5 5 4 ·-4 5 Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address .the problems. 292 TENNESSEE'S ADMINISTRATIVE SYSTEMS FOR WATER ALLOCATION AND MANAGEMENT William F. Brandes Director Water Resources Research Center The University of Tennessee Knoxville, Tennessee The State of Tennessee lacks a well-developed, integrated, and coordinated, administrative system for water allocation and management. Despite its built ­ in disabilities, however, the system works. There are some very good people involved in the institutional arrangements to carry out the state's role and, in many respects, they are able to do a good job. It is a familiar homily that even the worst organizational _structure can be made to work effectively if it is properly staffed and supported. Conversely, the best functional organiza­ tion will not operate well unless it is properly supported. However, it should be clear that there is no point in expecting a poorly organized establishment, which is also inadequately supported, to do . an over-all good job. In short, the state organization for managing water resources is fragmented and uncoordinated. It lacks comprehensive legislation, and in some respects, as the previous paper by Dr. Sikora has indicated, it lacks any statutory foun­ dation at all. Further, it suffers from the chronic problems that affect many states: understaffing, underfunding, and high personnel turnover due to low pay scales. It also lacks a high-level executive spokesman. The state agen­ cies concerned with water resources are scattered, and the highest ranking individual to speak for water resources would be the director of a division within a department. He, of course, could only speak for his particular aspect of water management. Even his boss or his boss's boss would have responsi­ bility for only a part of the total water resource program. Further, this cabinet level official would have other concerns which would dilute (please forgive the pun) his water resource responsibilities and may even conflict with them. There are a number of state agencies which have responsibilities for parts of the total water resource program. Basically, the function is divided between the Departments of Public Health and Conservation. The Department of Public Health is, in general, responsible for water quality matters. These duties are concentrated in the Water Quality Control Division. Within this limited pur­ view, the Division has a relatively clear-cut objective and does a commendable job of managing it. The Department of Conservation is responsible for recrea­ tional development of water resources, geologic investigations, and surface-mine 293 permitting and control with attendant water problems. In addition, the Depart­ ment encompasses the Division of Water Resources which will be addressed at a later point. Other agencies are involved in more limited management roles. The Wildlife Resources Agency is an independent state agency that does not receive appro­ priated money from the Legislature but retains the fees from the sale of hunt­ ing and fishing licenses, besides getting federal support from the taxes on sporting equipment. The State Department of Agriculture has responsibilities for .erosion, drainage, small reservoirs, and rural water supply. The Tennes­ see State Planning Office has an overall planning mission for state government but, in practice, works on special projects as assigned and also acts as the A-95 clearinghouse for federal funds which may relate to' water resources. The Department of Economic and Conununity Development is interested in water resources from the standpoint of attracting industrial development to the state. Civil Defense gets into the program in connection with spills of oil or hazardous materials and flood or other natural disaster control. With respect to water quality management, there are two basic factors which have brought about Tennessee's lack of a functional administrative apparatus: first, there has been no serious shortage within recent memory (although there was the makings of one back in the mid-1950's) and, therefore, no crisis to react to; and second, Tennessee has been spoon-fed by the Tennessee Valley Authority (TVA), and to a lesser extent by the other federal agencies. As a result, the people and the legislators do not perceive that there are water problems. Furthermore, if there were any, they are not seen as state respon­ sibilities. However, there are already some signs of coming water supply problems. For example, in north Williamson County, the county just south of Nashville which is developing into the prestige bedroom county for the Nash­ ville metropolitan area, there is already a water shortage. In fact, it is a growth limiting factor in that area. Water is being pumped from the Cumberland River to the northern edge of the county, which is a relatively long distance already and will become progressively more difficult or impossible as develop­ ment spreads through the county toward the south. The Town of Franklin is already in the position of not being able to accept more growth. Surf ace water supplies are inadequate and ground-water availability in Middle Tennessee's karstic limestone is not well understood, at best. The Division of Water Resources in the Department of Conservation would appear from its title to be chartered as the basic organization to handle matters of water quantity. However, for a variety of reasons, it is primarily a data­ gathering agency. It has little or no developmental or regulatory activity. A state statute requires anyone who withdraws 50 thousand gallons of water per day or more to register with the Division. The user would not have to get a permit, which would imply regulation by the Division, but would simply have to register. Even this minimum provision has not been practiced. Instead, the Division of Water Resources has only an outdated and incomplete water survey to determine who the principal water users are. Completion of this survey was aborted for lack of funding and support. A new water use survey program is now being instituted, but lack of staff requires that it employ a mail-out ques­ tionnaire technique, which may limit the completeness and comprehensiveness of the product. 294 In the case of ground water, a permit is not required for a well. There is no limit on how much water can be taken from a well excepting, of course, through the "over-lying ground, reasonable use" legal principle of the common law. That is, if one objects to the amount of water another is removing from a well, he may go to court on a connnon law basis. There is a requirement that well drillers be licensed, and the Division inspects their work to see that they are doing an adequate job. A significant amount of data about ground water is acquired through this activity. The .Division of Water Resources is also getting into the dam safety program. Basically, the state in this program will contract with and be supported by the Corps of Engineers, which has the federal responsibility. As the state's capability improves, it will take on more and more of the dam inspection func­ tion. This too is fraught with problems. There is no well-established proto­ col for determining the safety of a dam--that is, no simple procedure of mea­ surements and tests which could be implemented by a technician. An experienced engineer is required, and it is difficult to see how the state will attract sufficiently qualified people into this activity with the salaries that it is able to offer. As an example of lack of support, the Legislature provides the Division with the sum of $350,000 per year. Out of that amount, the Division must surrender $100,000 to the U.S. Geological Survey for the cooperative data gathering pro­ gram. Then, they give $60,000 to the Tennessee-Tombigbee Waterway Development Authority and $20,000 to the Ohio River Basin Commission (ORBC). This leaves the Division with $170,000. In addition, it gets about $20,000 a year from licensing ·well drillers, and it gets a grant from the federal Water Resources Council of $50,000 a year, which totals approximately $240,000 operating funds for the Division. This obviously will not support a very extensive program. It is interesting to see the state agency contributing $20,000 of state money to ORBC · and receiving $50,000 from the Water Resources Council. This must be the origin or the term "revolving funds." The Division has yet another serious responsibility: to develop the state water plan. A comprehensive water plan for the state is authorized and is bad­ ly needed. It has been worked on only intermittently. Again, lack of funding and staff support is the problem. It is interesting to note that a fairly detailed evaluation of planning needs was conducted in 1956 entitled, "Public Water Policy in Tennessee." To my knowledge, this is the last time the matter was addressed. It was occasioned at that time by the relatively serious drought of the mid-1950's and brought on the establishment of the Water Re­ sources Division. This study is clearly out of date, and the Water Policy Com­ mission which directed it no longer exists. Under present circumstances, probably the best bet that Tennessee has for developing a comprehensive state water plan is by working several approaches based on the hydrologic divisions of the state. With very minor exceptions, there are three such divisions: the Cumberland River Basin, the Tennessee River Basin, and the West Tennessee tributaries which drain directly into the Mississippi River. Both the Cumberland and Tennessee Rivers drain into the Ohio River, suggesting that they should be incorporated into the boundaries of ORBC, which is the P.L. 89-801 agency for that watershed. However, here 295 we have another handicap; the Cumberland watershed is within the region encom­ passed by ORBD, but the Tennessee River Basin is a separate jurisdiction reserved to TVA. At the present time, ORBC is initiating a coordinated, com­ prehensive joint plan (CCJP) or level B study for the Cumberland Basin. A level A or framework study for the entire Ohio Basin (less the Tennessee River) is already completed. The level B study will be more detailed than the level A. The Division of Water Resources is working with the ORBC on the plan of study for the level B. The plan calls for two initial phases: phase 1 to · collect baseline data and phase 2 to determine how existing projects fulfill the needs. The determination of needs for additional projects, planning and management arrangements, and controls and regulations will follow from these. TVA, of course, performs a very significant level of planning within the Ten­ nessee River watershed. This activity is primarily with regard to TVA's own interests, which do not necessarily coincide with the interests and responsi­ bilities of the state. Unless the state is willing simply to abdicate its responsibilities for water resource management over fully half its territory, it should provide the means for a cooperative effort with TVA for development of a comprehensive water plan--and insist that TVA similarly devote the effort to accomplish this. TVA is planning to initiate a CCJP for the Tennessee River Basin which consists of parts of seven states. That part of Tennessee which drains directly into the Mississippi has water resource attributes and problems which differ markedly from the rest of the state. Here the Corps of Engineers, Memphis District, has performed the only substantial degree of planning. Very serious controversies exist between the Corps, the state, local interests, and environmental groups everywhere with regard to developing the water resources of this region. A comprehensive study is badly needed, but it is doubtful that in the present climate one could be successfully accomplished--or even initiated. Between the state level and the local/municipal level of government, there exist certain regional, state-chartered agencies. These include the Obion­ Forked Deer River Basin Authority with responsibility primarily for maintenance of drainage works, and the state-wide system of multi-county development dis­ tricts which are responsible among other things for the section 208 studies (areawide wastewater management) under P.L. 92-500. 2 However, these programs are not properly a subject for this paper. It is necessary to guard against leaving an erroneous impression. In Tennes­ see, the system does work, and the state grows and prospers. Regrettably, it is handicapped by apathy and inadequate organization to manage water resources. The growth and prosperity must be attributed to a natural abundance of water and to its development by federal agencies. Awareness by the state that it should assume a more active role in managing its water resources will require education and may require a crisis. There is definitely a trend in federal­ state relations now toward returning regulatory functions to the states-­ albeit with federal guidelines. For example, Tennessee, along with about half the other states, has assumed responsibility from the U.S. Environmental Pro­ tection Agency for the NPDES permit program under P.L. 92-500. The new solid waste regulatory act,3 with its toxic substance controls, is framed for state implementation as is the new surface mine reclamation law,4 and the latest 296 revisions5 to P.L. 92-500 provide for the -states to take over most of the sec­ tion 404 permit activity. It would behoove Tennessee to prepare itself better for these and other pending responsibilities. Otherwise, the modern-day car­ pet baggers from Atlanta and Washington will simply retain control by default. It is unfortunate that other problems so divert our attentio.n tha.t the.re is. no interest in seriously addressing so fundamental and pervasive a matter as developing an administrative system for water allocation and management. The situation is reminiscent of the story of two Allied officers who met in the field during a battle in the First World War. The British officer described the situation as serious but not desperate. The French officer described it as desperate but not serious. It is left to the reader as to which officer Tennessee is like. FOOTNOTES 1. Water Resources Planning Act of 1965, 42 U.S.C. 1962a et seq. 2. Federal Water Pollution ·control Act Amendmen.ts of 1972, 33 U.S. C. 1251 et seq. 3. Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq. 4. Surface Mining Control and Reclamation Act of 1977, H.R. 2, 95th Cong., 1st Sess.; 123 Cong. Ree. H6938 (1977). 5. Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C.A. 1251 et seq. 297 · WATER RESOURCE PROBLEMS (Tennessee) 1. Surf ace Water Law Water Withdrawal uses and allocation c; Instream uses '1 Saline water intrusion - Land use relationships '1 Property damage 2 Ownership of submerged lands 2 Coniunctive use surface & ground water u Protection ground water recharge areas - Emergency use /J. Interbasin transfer /J. Interstate effects /J. Shoreline protection /J. Wetland protection '1 Public access 2 Reservation of reservoir sites 1 Water Administration Allocation standards & criteria 5 Data bases 3 Permit procedures 3 Regulation & enforcement 4 Agency structure & functions 5 Please mark as to priority using following code: 5 highest ~ 1 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water u 5 - - - - i; 1 ? 2 - - u 4 - c; 1. 5 - - - 4 - - ".l - - - - - 5 5 3 3 3 3 4 4 5 5 Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing Jaws address the problems. 298 Virginia 299 VIRGINIA WATER LAW: A FUNCTIONAL ANALYSIS WITH RESPECT TO QUANTITY MANAGEMENT William E. Cox Assistant Professor Virginia Polytechnic Institute and State University Blacksburg, Virginia INTRODUCTION Water law in the Commonwealth of Virginia has undergone considerable develop­ ment in the last decade. The basic common law doctrines and concepts that traditionally have governed activities affecting water have been supplemented in several areas by statutory . enactments and new administrative management pro­ grams. The two primary forces responsible for this development have been th desire for more efficient utilization of what has become a scarce resource and ~oncern over destruction of natural environmental values associated with the water resource. These forces are still at work, and additional changes in the ---------------1 e gal framework are likely in the near future. Modifications in water law generally have consisted of supplemental controls over specific types of water and water-related land use rather than a compre­ hensive revision of applicable law. The traditional common law control meas­ ures have been substantially superceded in certain limited areas, but pre­ viously existing law generally remains in force. Thus the body of law currently applicable to water spans a broad range of relatively independent common law doctrines and legislative enactments. These various components of the legal framework can best be analyzed within the context of individual water resource management issues. WITHDRAWAL USES: ALLOCATION OF SUPPLIES Basic Allocation Mechanisms Virginia law for allocation of water among withdrawal uses is based on the common practice of classifying water as to its location within the hydrologic cycle, with separate allocation principles applied to different sources of water. The primary legal classifications consist of natural watercourses, ground water, and diffused surface water. 300 Natural Watercourses 1. R.iparian Doctrine Allocation of streamflow continues to be accomplished through application of the riparian doctrine, the common law doctrine of water rights traditionally accepted in the eastern United States. This doctrine is simply a collection of principles for resolving water use conflicts that have been established in the accumulated decisions of the courts. Water allocation under the doctrine is a function of the courts of the state, and the primary mechanism of enforce­ ment is the private lawsuit between parties to a specific controversy over water use. The ~asic premise of the riparian doctrine is that water rights arise as an incidence to the ownership of land bordering or traversed by a natural water­ course. Under the current Virginia interpretation of the doctrine, each riparian landowner has the right to make a reasonable use of the water in con­ nection with the use and enjoyment of the riparian property. The Virginia Supreme Court has described the right of the riparian owner as follows: A proprietor may make any use of the water of the stream in connection with his riparian estate and for lawful pur­ poses within the watershed, provided he leaves the current diminished by no more than is reasonable, having regard for the like right to enjoy the common property by other riparian owners.! This statement of the riparian right establishes two fundamental limitations on water use: 1. The use must be on riparian land, and 2. The use must be reasonable. Due to the restriction of use to riparian land, the definition of such land establishes limits for the transport of water. The basic requirement for land to be considered riparian is physical contact wi t h the stream in question. The maximum extent of riparian land generally is considered to consist of the boundary of a stream's watershed . Of course subdivision of land within the watershed into multiple ownership destroys the riparian status of those tracts no longer in contact with the stream. In some jurisdictions, riparian status cannot be restored to once-separated tracts even by merger under common owner­ ship with land that remained riparian . The Virginia Supreme Court has never decided this particular issue,2 but the following statutory definition from a Virginia statute providing for impoundment of flood water indicates that all land under common ownership within a particular watershed is riparian at least for purposes of that act: "Riparian land" is land which is contiguous to and touches a watercourse. It does not include land outside the water­ shed of the watercourse. Real property under conrrnon owner­ ship and which is not separated from riparian land by land of any other ownership shall likewise be deemed riparian 301 land, notwithstanding that such real property is divided into tracts and parcels which may not bound upon the water­ course. 3 The concept of reasonableness is the central element in defining the extent of a water right under the riparian doctrine. Reasonableness is a relative matter depending on the individual circumstances of the particular case.4 A funda­ mental guideline is that a given water use must be compatible with other uses relying on the same source. Thus a concept of sharing the available supply is a basic aspect of the riparian doctrine. However, not all uses are of equal standing in the sharing process. Domestic use is granted a higher priority than other uses. Satisfaction of domestic needs appears to be the sole pur­ pose for which the entire flow of a stream may be taken.5 Although the reasonableness concept establishes a limit on the amount of ad­ verse impact one water user can inflict on others, it does not necessarily prohibit all adverse effects--only those exceeding some reasonable level. This factor is the primary distinction between the reasonable use and natural flow theories of the riparian doctrine. The natural flow theory, which received widespread acceptance during the early development of water law in the United States, holds that each riparian owner has a right to the continuance of the natural flow of a stream, diminished only by the domestic uses of -other riparians. Under this theory, a water use for nondomestic purposes that re­ duces the flow of a stream as it passes lower riparian land is therefore a violation of the lower riparian's rights even if the reduction produces no harmful effects. Since the reduction in streamflow constitutes infringemen~ of a property right, legal action can be initiated at the time of streamflow reduction and is not dependent on the existence of actual injury arising from a reduced water supply. Conversely, the right of action under the reasonable use theory does not arise until actual injury occurs; therefore the riparian owner not using water or one whose use is not adversely affected by a reduc­ tion in streamflow has no basis for a legal action. After an initial period of relatively widespread acceptance-, the natural flow theory began to decline in favor of the reasonable use theory. This latter theory is more utilitarian and allows greater water resource development due to its emphasis on use rather than preservation of natural conditions. How­ ever, elements of the natural flow theory still remain in the law of some states. Furthermore, the courts sometimes fail to distinguish between the theories, with the result that certain decisions may contain language indi­ cating acceptance of both theories. In Virginia, certain court decisions appear to endorse the natural flow theory,6 and the Virginia Supreme Court apparently has never expressly repudiated this concept in favor of reasonable use. However, statements of the court such as the one contained in the pre­ vious quotation from Virginia Hot Springs v. Hoover7 and pronouncements regard­ ing the necessity for actual physical injury as a prerequisite for legal action8 suggest acceptance of the reasonable use concept. Water rights under the riparian doctrine normally are not fixed in magnitude but may vary over time due to changes in water availability or other condi­ tions. One potentially significant source of changed conditions is the initia­ tion of new water uses based on previously unused riparian rights. Such rights 302 generally are not lost because of non-use but continue to attach to riparian property. These unused rights constitute a major source of uncertainty for water users in riparian jurisdictions since no record of such rights exists. Although riparian rights are not lost by simple non-use, they can be lost through the process of prescription. The basic requirement for the acquisi ­ tion of a prescriptive right is adverse use for a certain period of time, which in Virginia is 20 years.9 The use must be hostile to the interests of the original owner, open and ascernible, and continuous. Unlike the pre­ scriptive period under the natural flow doctrine which begins to run at the time that natural streamflow is diminished, the prescriptive period under the reasonable use concept does not begin to run until actual injury to a water use occurs. Thus a prescriptive right cannot be established against an unex­ ercised riparian right since the injury requirement cannot be satisfied. Neither can a prescriptive right be obtained against an upstream riparian since such owners cannot be adversely affected by a downstream water diversion. A special category of water use to which the Virginia court has applied the reasonableness standard consists of municipal water supply. The two principal cases are T(}U)n of Gordonsville v. ZinnlO and Toli!n of Puraellville v. Potts.11 Gordonsville, decided in 1921, involved a suit for injunction by the town to prohibit another landowner from using water from a small, non-navigable stream that supplied municipal reservoirs. The dwelling of the defendant was actually located at a lower point on the stream than the town land, but the owner had purchased a 25-foot strip of land extending to the stream above the town's reservoirs and was withdrawing water at this point. The town's riparian land consisted of a one-acre lot containing reservoirs from which water had been diverted for use in the town for more than 30 years. A contract with regard to water usage existed between the town and the defendant's predecessor in title, but the .court did not treat it as a material factor in the case. The Virginia ~ourt held that the defendant's land was not riparian to the stream at a point above the town's lot but must be considered as lower riparian land only, and the lower court's decision refusing the injunction requested by the town was reversed and the case remanded for further consideration. How­ ever, the protection given to the town was not based on its original riparian rights but rather on the fact that its adverse use of the water in question for longer than 30 years had created a prescriptive right against all lower land­ owners, including the defendant. With regard to the original water rights of the town, the · court stated that . the right of the town, as a riparian owner, to the use of the water of the stream, is, under the authorities above mentioned, limited to uses on its one-acre lot, and, as an original proposition, it had no more right to divert any water not used on this riparian lot to the town itself (a nonriparian locality) than the [defendant] has to divert to her dwelling house land water not used on her [upper] riparian ••. land . 12 Puraellville, decided in 1942, involved a suit by a private landowner against 303 a municipality for an injunction to require removal of two upstream water sup­ ply dams constructed by the town. The dams were locted on principal tributar­ ies of a stream flowing across plaintiff's property, one of whi ch had its ori ­ gins in a spring on the town's land. By means of the dams, the town diverted water to supply its inhabitants, with the result that none was available dur­ ing the summer months to the downstream landowner who had previously relied on the stream for the watering of a small number of cattle. In reaching its decision in favor of the plaintiff, the Virginia Supreme Court cited the North Carolina case of Pernell v. City of Hendersonl3 and quoted the following language from that case: It has been held with practical unanimity that a municipal corporation, in its construction and operation of a water supply system, by which it impounds the water of a private stream and distributes such water to its inhabitants, re­ ceiving compensation therefore, is not in the exercise of the traditional right of a riparian owner to make a reason­ able domestic use of the water without accountability to other riparian owners who may be injured by its diversion or diminution.14 The Virginia court fully accepted this reasoning as applicable to the situa­ tion in "Purcellville, including the stream originating in springs on the town's property. Therefore it affirmed the lower court's decision in favor of the complaining landowner. However, the court suspended the operation of the injunction to provide a reasonable time for the town to acquire the riparian rights of the landowner by condemnation proceedings, thereby avoiding hardship for the inhabitants of the town. The position that municipal withdrawal is not a riparian right on non-navigable streams appears to represent a majority view; however, certain mechanisms exist by which such withdrawal may be permitted in spite of the lack of recognition as a riparian right. The availability of the powers of eminent domain condem­ nation to many public water suppliers is one important factor since it estab­ lishes a procedure for acquisition of the water rights of parties who would be injured and therefore have recourse to legal action. The availability of the power of eminent domain, coupled with the reluctance of the courts to grant injunctions against municipal withdrawals, creates the option for the municipality to construct water works and initiate withdrawals prior to reso­ lution of the water rights issues. If such withdrawal is later found to vio­ late the water rights of others, condemnation proceedings can generally be instituted at that time. For example, the municipality involved in the Pur­ cellville case discussed previously was held to be in violation of the water rights of others, but the Virginia Supreme Court delayed application of the requested injunction to allow initiation of condemnation proceedings to ac­ quire the rights in question. As illustrated by Gordonsville, another mechanism by which a public water sup­ ply can achieve legal recognition is the process of prescription. A basic uncertainty regarding the establishment of a prescriptive right concerns the beginning of the prescriptive period. The question is whether the reasonable 304 use requirement of injury will be imposed with r~gard to all other water users. This approach limits the value of the prescriptive right since unused rights would be excluded from its application. Where the riparian doctrine in a particular state still contains elements of the natural flow concept, it is possible that the physical injury requirement may not be strictly imposed. In Gordonsville, for example, the Virginia court indicated the existence of the municipality's prescriptive right against lower riparian owners in general without reference to specific injury in particular situations, at least sug­ gesting that the interruption of natural flow for the prescribed period was in itself sufficient to establish the right. A third manner in which public suppliers may circumvent legal problems arising from the lack of recognition of public supply as a riparian right is the use of surplus water not being used by riparian landowners. This approach is pos­ sible because of the requirement of the doctrine that injury occur before the right of legal action arises. Therefore withdrawal of surplus water may be allowed for public supply or other purposes not recognized by the riparian doc­ trine. However, such use is subject to several limitations. Without the sanctity of legal recognition, withdrawal would be limited to a magnitude that caused no adverse effects on other users. This standard is stricter than the normal limitation of withdrawal which allows some adverse impact, provided the effect is not unreasonable. A use dependent on surplus water has an inherent uncer­ tainty with regard to its continuance due to the possibl~ future exercise of previously unused riparian rights or an increase in existing uses. A further limitation of use without an established legal right is the lack of enforce­ able protection against excessive or otherwise unlawful water use by others. As indicated by the Virginia court in Gordonsviiie, the extent of the relief to which a water user is entitled is measured by the extent of the party's water right. In Gordonsville, the municipality had acquired a prescriptive right which was enforceable against an unlawful use by another party. Without such right, the right of action presumably would not have existed. A special category of surplus flow that has considerable potential for exploi­ tation by public supplies without establi shed water rights consists of flood waters. As in the case of the use of other surplus water, the right to use flood waters may be limited where such flows confer some benefit on riparian owners. The right t o continuance of seasonal overflows has been recognized in a number of wester n cases because of irrigation benefits and sediment en­ richment of land bordering streams. Overflow irrigation was recognized bl ~he U.S. Supreme Court in the case of United States v. Gerlaah Live Stock Co. 5 Most of the situations where rights t o continuance of floods have been recog­ nized are more likely to occur in the West, but some possibility exists that such rights could be recognized in an eastern state such as Virginia. A Virginia statutel6 establishes a procedure by which any owner of riparian property located on a non-navigable stream, presumably including a public water supplier, can capture flood water, def ined to mean water above the average flow. Approval of flood water i~poundment projects requires inter­ action between the State Water Control Board (SWCB) and the circuit court of the county or ci ty where the impounding structure is to be located. Applica- 305 tion for the necessary authorization is made to the court, with a copy re­ quired to be sent to SWCB. The final decision on the application is made by the court on the basis of a report to be submitted by SWCB and other evidence, including information obtained _through a required public hearing. The statute provides that the proposed project not . be authorized if it appears that other riparians will be injured, if the SWCB report indicates that the reduction of pollution will be impaired, or if other justifiable reasons for denying the requested authorization exist. If approval is granted, the court can impose such terms and conditions on the applicant as it feels are necessary. Water rights in a particular natural watercourse may be affected by the stream's capacity for navigation. The primary distinction in water rights that exist in navigable waters as compared to those in non-navigable waters is that such rights are held subject to the power of governmental authorities to exer­ cise control over the navigable water. All other uses are subordinate to the exercise of public rights and may be destroyed without compensation. 17 Public control generally has . been limited to such purposes as navigation, flood con­ trol, and power production and typically has not included public water supply. There are exceptions to the general rule. In some cases, public water supply has been included within the category of public uses that are superior to all private use, with the result that no compensation is required to ~ater users injured by withdrawal for supply purposes.18 However, this position appears to represent a minority view. In the State of Virginia, municipal water uses have not been determined to be encompassed by the navigation servitude, but special cases have been developed wherein municipal water rights may exist independently of the riparian doctrine. A primary example consists of the water rights of the City of Richmond in the James River. The initial action by the State Legislature leading to the devel­ opment of Richmond's current rights occurred in 1784 when the James River Com­ pany was created. 19 The primary purpose of the action was construction of a canal along the James to improve navigation, but substantial water rights for other purposes were conveyed, including provision of water supply. The rights originally conveyed to the James River Company subsequently have been subject to a number of transfers by legislative action.20 On March 16, 1832, an act was passed incorporating the James River and Kanawha Company, which succeeded to all of the rights of the original James River Company. In 1879, the canal having practically been destroyed by a flood, the James River and Kanawha Company was authorized to transfer, upon certain terms and condi­ tions, all of its rights, property, and franchises to the Richmond and Alle­ ghany Railroad Company. The Chesapeake and Ohio Railroad Company has now succeeded to the rights of the Richmond and Alleghany Railroad Company and now owns portions of the canal. The City of Richmond first acquired water rights in the canal by means of an 1880 agreement21 whereby the City was authorized to use water primarily to provide power to run pumps. The City's right to withdraw water for supply purposes apparently was not quantified until 1928 when the right to 88 cubic feet per sec?nd (cfs) (57 million gallons ~er day (mgd)) was transferred from the Atlantic Coast Line Railroad Company.22 These rights have been expanded 306 considerably in recent years by agreements between the City, the C&O Railway, and other parties previously holding water rights through agr.eements with 23 . C&O. The City has now acquired all water rights in connection with the canal, which total 645 cfs (417 mgd). The Gity has also assumed responsibility for maintenance of the canal although it is still owned by C&O. In addition to supplying its inhabitants with a water supply, the City of Rich­ mond applies the water encompassed within its water rights to maintenance of low flows in the James for enhancement of recreational values at its James River Park. Utilization of the water encompassed within the right claimed by the City is significant to maintenance of low flows since the total flow of the James drops below the magnitude of the right during times of drought. 2. Administrative Programs Affecting Water Use and Development Although Virginia has not established direct administrative controls for allo­ cation of streamflow, several administrative programs have an impact on use and development of watercourses. These programs can be classified into three general cate~ories: 1. Water resources policy formulation, 2. Water resources planning, and 3. Regulation affecting water use and development. With regard to water policy, the State Water Control Board is under legislative mandate to" .•. formulate a coordinated policy for the use and control of all the water resources of the State .•.• "2q Legislative guidelines for the formulation process include protection of existing water rights, provision for protecting and giving preference to adequate supplies for human consumption, maximization of economic development through water use and development, con­ sideration of the harmful effects of drainage projects, maintenance of low flows to protect instream uses, watershed development for balanced multiple uses, and provision of adequate protection of water recreation facilities against pollution.25 The policy statement26 subsequently developed by SWCB is a broad formulation encompassing all aspects of water resource management; however, the enabling legislation does not convey authority for effecting the resulting policy pro­ visions, and implementation must be accomplished within the scope of existing agency authority. Consequently, the resulting policy statement adopted by the Board encompasses programs that are under the jurisdiction of a number of agencies. The Board's direct implementation powers are limited to areas with­ in its jurisdiction pursuant to other legislation. The agency has stated that the policy will also be utilized " .•. in the preparation of Water Resource Management Plans, advising on the adequacy/desirability of water resource projects, and authorizing specific water resource projects or in connnenting on projects which affect water resources."27 · 307 Authority for water resource planning is also vested in the SWCB. Specific responsibilities are set forth in the following statutory provision: The Board shall devise plans and programs for the develop­ ment of the water resources of this State in such a manner as to encourage, promote and secure the maximum. beneficial use and control thereof. These plans may include compre­ hensive water and related land resource plans for each major river basin of this State, .•• and for those areas • • • not within these major river basins • • 28 This legislation was enacted in 1966, and comprehensive river basin plans essentially have been completed. Since the transfer of the planning program from the Department of Conservation and Economic Development to the State Water Control Board,29 however, emphasis has been placed on water quality planning rather than quantity-related planning. This shift has been due to the traditional water quality mission of SWCB and the high degree of federal inter­ est in water quality management as reflected through regulatory measures and funding programs. It is significant that planning authority does not vest powers of implementation in SWCB or any other agency. Therefore implementation must be achieved through existing agency authorities and may be frustrated as a result. Several regulatory measures exist in Virginia law ·that constrain certain types of water use and development. Included in this category are such programs as controls over public water supplies,30 construction of certain dams,31 and ~on­ trols over fishing· and hunting.32 These controls generally impose aqditional constraints on the potential water user but do not modify basic water rights defined by the common law. Ground Water Allocation of ground water among competing users is an administrative function of state government in specially designated geographic areas and a function of the courts under common law ground-water doctrines in non-designated areas. 1. State Allocation Program in Designated Areas The Ground Water Act of 197333 declares that control of ground-water resources is essential to ensure the preservation of the public welfare, safety, and health and constitutes an application of the police power of the state for regulation of ground-water use. A fundamental aspect of the Act is that its principal regulatory measures do not apply statewide but are intended to be restricted geographically to those areas having identified ground-water manage­ ment problems. Implementing the regulatory provisions of the Act in such an area requires that it first be designated as a "ground- water management area" by the State Water Control Board according to procedures in the Act. The Act specifies four conditions34 which, individually or in combination, justify the initiation of ground-water management area proceedings. These include: 308 1. Excessive decline in ground-water levels or artesian pressures, 2. Interference between the wells of two or more ground-water users, 3. Actual or imminent overdrawing of the available ground-water sup­ ply, and 4. Actual or expected pollution of ground water. The State Water Control Board may initiate a proceedings upon its own motion or upon the petition of any county, city, or town within the area in question. The boundary of the area is subject to determination by the Board. Two ground-water management areas have been designated to date. At its meeting in January, 1975, the Board designated a major ~ortion of the state's south­ eastern corner a ground-water management area.3 The designated area is that section of the coastal plain lying south of the James River and east of the fall line; it includes the counties of Prince George, Southampton, Surry, Sus­ sex, and Isle of Wight and the cities of Chesapeake, Franklin, Hopewell, Nor­ folk, Portsmouth, Suffolk, and Virginia Beach. A second management area was established by an order adopted September 27, 1976.36 This area consists of the Eastern Shore of Virginia, including the counties of Northampton and Acco­ mack and all towns within these counties. The primary effect of designating a ground-water management area is to imple­ ment a special management program which includes regulation of new ground-water uses in the area. The principal control provision in the Ground Water Act is the requirement that certain uses within designated areas cannot be initiated without a permit from the Water Control Board. One category of exemptions includes uses in existence ·on the date an area is designated, intended uses where wells are under construction, or any use in existence within two years prior to the date of area designation.37 Existing uses must be registered with the Board and are acknowledged by issuance of a certificate of ground-water right. Such rights are limited by the extent of application to beneficial use. This provision theoretically gives the Board authority to review existing uses to some extent rather than to issue requested certificates automatically. Full utilization of this provision has the poten­ tial to overcome the weakness in the management program created by exempting existing uses from the permit requirement. Since existing uses may constitute the principal source of the ground-water problems in a given area, some control over such uses appears essential to effective ground-water management. Another group of special uses will remain exempt, even if not in existence at the time of area designation. This group includes "the use of supplying of ground water for agricultural and livestock watering purposes, for human con­ sumption or domestic purposes, or for any single industrial or connnercial pur­ pose in an amount not exceeding fifty thousand gallons a day. 1138 Although the exemption provisions do not make specific reference to municipal use or public water supply, the Virginia Attorney General39 has determined that municipal withdrawal for human consumption and other domestic purposes is 309 exempt without regard to quantity as in the case of individual use for these purposes. Municipal withdrawals for single industrial and commercial purposes exceeding the 50,000 gallon per day limitation theoretically are subject to the permitting requirement. However, regulation of municipal withdrawals on a selective basis poses problems of administrative feasibility since individual withdrawals are likely to serve a variety of types and sizes of users. Thus it is doubtful as to whether municipal withdrawal of ground water can be ·effectively regulated under the existing Ground Water Act. For new or enlarged ground-water uses within a designated area not exempt because of their special nature, no inherent right of the landowner is recog­ nized. The right to initiate a new use must be acquired from the Water Control Board.40 The Board may grant the right as requested, but it is authorized to impose conditions and limitations in the permit, approve the permit for less water than requested, or reject the application. The basic legislative crite­ ria to guide the Board's decisions with regard to a proposed well are that new uses are to be limited by the requirement of beneficial use and that undue interference with existing wells will not be allowed. The Act provides that "[n]o application shall be approved when the same will deprive those having prior rights of beneficial use of the amount of ground water to which they are lawfully entitled."41 This statutory provision introduces the concept of priority in time as a basic element of water rights and expresses the fundamen­ tal concept of the doctrine of prior appropriation, ·a doctrine that has not been applied previously in Virginia. 2. Judicial Allocation in Non-Designated Areas The Virginia Supreme Court has decided a limited number of cases arising out of disputes between different ground-water users and between water users and other resource developers, but connnon law ground-water rights have been incompletely defined. In fact, the Virgin~a court has never explicitly accepted any partic­ ular ground-water doctrine. Two early cases, Miller v. Black Rock Springs Im­ provement Co.42 and Heninger v. McGinnis,43 appeared to uphold the absolute ownership doctrine 1 but the court subsequently stated, in Clinehfield Coal Corp. v. Compton,44 that no choice has been made. This refusal to adopt a particular doctrine has been based on the view that its decisions in the cases decided to date would have been the same under either absolute ownership or reasonable use, the two primary doctrines that have been applied in the eastern United States. Although the position taken by the court indicates a similarity between the two doctrines, certain distinguishing characteristics do exist. The underlying concept of the absolute ownership doctrine is that each landowner has complete ownership and control over water underneath his land. Therefore each landowner has an unlimited right to use ground water or to interfere with its movement through land development, subject only to the qualification that waste and malicious injury to others generally is unlawful. Thus the doctrine consti ­ tutes a rule of capture and creates essentially no enforceable water rights since no right of legal action exists for injury produced by the activities of others. 310 In the case of the reasonable use doctrine, the landowner is viewed as having the right to make any reasonable use of ground water on the overlying land, or the right to reasonably develop property although interference with the water supplies of others may result. Although use of the term "reasonable use" to identify this doctrine of ground-water law suggests similarity with the ripar­ ian doctrine, a fundamental distinction can be made between the two doctrines. In the case of the riparian doctrine, reasonableness .is a relative concept and the rights of each party are determined with regard to the needs of the other users. The determination of reasonableness under the ground-water doctrine as developed in the decisions of several states does not depend on comparison with other uses of the source of supply. A landowner engaged in a "reasonable use," generally interpreted to mean any traditional water or land use, is under essentially no constraints with regard to the impact of his use on others and can legally destroy his neighbor's supply. Although the reasonable use doctrine is similar to the absolute ownership doc­ trine with regard to ground-water use on the overlying land, the doctrines do produce a different result with regard to export of ground water for use on other land from which the water is pumped. The absolute ownership doctrine places no restriction on place of water use, but one of the general principles of the reasonable use doctrine as it has been developed in other jurisdictions is that use is limited to the land from which the water is taken. This prin­ ciple has seen the greatest application in situations where municipal water supplies are pumped from parcels of out-lying land and piped into urbanized areas. The Virginia court has never directly considered this issue, but the followin§ passage in Clinchfield is quoted from Meeker v. City of East Orange,4 .an often-cited reasonable use decision. But it [the reasonable use doctrine] does prevent the with­ drawal of underground waters for distribution or sale for uses not connected with any beneficial owner'ship or enjoy­ ment of the land whence they are taken, if it results therefrom that the owner of adjacent or neighboring land is interfered with in his right to the reasonable use of subsurface water upon his land, or, if his wells, springs or streams are thereby materially diminished in flow, or his land is rendered so arid as to be less valuable for agriculture, pasturage, or other legitimate uses.46 This statement is part of a longer quotation included to indicate the extent of the landowner's right under the reasonable use concept to use or divert ground water on the land where it is found. Inclusion of the statement regard­ ing the restriction of use on non-overlying land is an indication that the Virginia court views this widely-accepted qualification of the ground-water rights as a basic feature of the reasonable use doctrine. The Virginia court has not explicitly accepted the reasonable use doctrine, but the court has indicated that the trend of modern opinion is in favor of this rule. In fact, the absolute ownership doctrine now has been rejected in most states. Thus it is likely that the reasonable use doctrine will ulti ­ mately be adopted by the court, along with its prohibition on export of water. 311 Most of the ground-water decisions of the Virginia Supreme Court have involved coal mining operations that interfere with ground-water supplies available to other parties, either on overlying or adjacent land.47 The principle has been well-established that such interference does not produce liability where the mining is accomplished by traditional, non-negligent methods. The primary ex­ ception to this position of no liability consists of the situation where inJury to a water supply is associated with the collapse of the land surface as a result of inadequate subsurface support.48 The Virginia court has never decided a case involving interference between wells, but the issue has been discussed in cases involving mining interference with ground-water supplies. These cases indicate that the landowner is free to pump water for use on his own land without regard to the impact on others and that the injured ground-water user has no recourse but to sink his own well deeper.49 Since the _ court's declarations to this effect were not made in the actual context o.f deciding a conflict between well owners, the weight to be attached is reduced, but the reasonable-use doctrine, toward which the court apparently leans, has not imposed restrictions with respect to most on-site water uses. Although pumping of ground water for export and use at another location has never been considered by the Virginia court, the issue was the subject of a suit in the Circuit Court of Nansemond County (now the City of Suffolk) in 1966. The suit was brought by the Board of Supervisors of Nansemond County for the purpose of obtaining an injunction to prohibit construction and use of mu­ nicipal water supply wells by the City of Norfolk on property located within the county. The circuit court declined to enjoin construction of the wells but did temporarily enjoin Norfolk from pumping water from the wells ·for the purpose of using it in the water supply system of the city. Prior to expiration of the injunction in 1967, the county and city resolved the issue by means of mutual agreement.SO In return for the county's pledge that it would in no way interfere with use of the wells prior to December 31, 1972, the city agreed to limit its pumping during the period such that the amount pumped in any two consecutive months would not exceed an average of 15 million gallons per day. The city also agreed to pay to the county the sum of $25,000 to be held as a fund from which awards could be made to the owners of wells in Nansemond County that required adjustment or replacement because of the lowering of the ground water level. Provision was made for the city· to pay an additional sum not to exceed $10,000 in the event that the original fund was not sufficient to make all the awards due well owners during the effective period of the agreement. Guidelines for determining payments from the fund were based on the extent of water level reduction and the type of pumping equip­ ment used. Payment of awards to individuals was subjected by the agreement to the condi­ tion that the owner of the well and the land involved agree to release the city from all other damage claims and to grant the right to pump in accordance with the terms of the agreement. Each agreement in connection with an award from the fund was to constitute a covenant running with the affected land in order to protect the city against claims from future owners. 312 The expiration date of the agreement was December 31, 1972. Provision was made for the county to retain any non-expended part of the original $25,000 fund to be applied against the cost of administering the fund and the cost. of studies and surveys in connection with the wells. The agreement provides that nothing therein shall prejudice the right of Nansemond County to attempt to restrain later use of the wells or to seek damages for use after the expiration date. It also provided that the agreement shall not prejudice Norfolk's subsequent right for liability for such use. Diffused Surface Water Diffused surface water law traditionally has focused on rights of disposal and prevention of property damage, a subject discussed in a subsequent section of this paper. With regard to allocation, the following statutory provision is applicable: Diffused surface waters may be captured and impounded by the owner of the land on which they are present and, when so impounded, become the property of that owner. Such im­ poundment shall not cause damage to others .... 51 Such impounding structures are subject to rules and regulations pertaining to safety developed by the State Water Control Board. Conjunctive Management of Surface and Ground Water Virginia water law traditionally has not recognized the interrelationships among the various phases of the hydrologic cycle but instead has consisted of separate legal theories based on a categorization of water as to source. Thus common law allocation doctrines for surface and ground water are substantially independent. The fact that the leading theory for both streamflow and ground-water alloca­ tion is identified as the "reasonable use" concept suggests similarity in water rights in the two sources. However, this similarity is more apparent . than real. While the riparian concept of reasonable use restricts the amount of permissible water use on the basis of adverse impact on others sharing a common source of supply, the ground-water concept of reasonable use contains no such restric~ tions for traditional on-site uses. Although a few cases decided in other states are based on a concept of sharing the available ground-water supply,52 this principle is notably absent from ground-water decisions in Virginia and most oth~r states. This fundamental difference in surface and ground-water rights poses a substantial impediment to conjunctive management. The obstacles to joint management have been compounded by a perpetuation of separate legal treatment in statutory enactments. The only water allocation statute enacted in Virginia to date applies solely to ground water53 and makes no provisions for possible interrelationships with surface waters. Thus the existing institutional framework does not app~ar conducive to conjunctive man­ agement. 313 Interbasin Transfer Although Virginia generally is considered to be a water-abundant state, dis­ parities in geographic patterns of water availability and population distribu­ tion have created water supply shortages, especially in the populous northern and southeastern sections of the state. These shortages have given rise to proposals for major transfers of water from areas of relative surplus to areas of projected deficit. Consideration of interbasin water transfers gives rise to several unresolved institutional issues. The absence of an administrative water allocation pro­ gram in Virginia means that no agency has authority to determine the legal status of a proposed diversion. Several federal, state, and local governmental entities exercise controls over various aspects of such a diversion project, but none of these required approvals constitute final authorization for a trans­ fer. Nev~rtheless, several approvals are mandatory, creating the potential for prohibition of project construction. In addition to traditional federal and state controls relative to structural aspects of water transfer projects, local controls may apply. The principal local constraint is the requirement for con­ sent of the political subdivision in which extra-territorial water supply proj­ ects owned by other political subdivisions are to be located.54 The potential impact of this requirement is tempered by a provision for appeals· where consent is denied to a special three-judge court. Of course the ultimate determination of the legality of interbasin transfer in Virginia must be determined by application of the riparian doctrine. Of pri ­ mary interest with regard to the validity of interbasin transfer is the re­ quirement of the doctrine the water be used on riparian land. Since · riparian land in the broadest sense does not extend beyond the watershed of the stream in question,55 interbasin transfers in general are not given legal recognition under the riparian doctrine. The Attorney General of the Commonwealth has recognized this conflict with the doctrine and has indicated the possible unlaw­ ful nature of interbasin transfers.56 The riparian doctrine has been pragmatically applied, however, and the prin­ ciple that water must be used on riparian land has been modified to allow use on non-riparian land in the absence of injury to riparian owners.57 The ques­ tion of injury, therefore, becomes a key issue in considering the legal status of any interbasin water transfer proposal. Such injuries could include ·the impact of the proposed diversion on lake drawdowns or on the availability of water for other uses, such as power generation or downstream use. The legal right of riparian owners to have natural lake levels maintained above some established minimum has been recognized, and diversions that substantially reduce levels so that property values are adversely affected have been held to be unlawful.58 However, this right may not be equally recognized with respect to artificial impoundments. In some states, the courts have given reservoir owners considerable freedom to fluctuate water levels.59 The Virginia court has never considered this issue. The legal determination of whether the detrimental effects associated with any proposed diversion constitute injury in a legal sense may be influenced by the fact that the proposed use is non-riparian. In the case of riparian use, 314 determinations of legal injury are guided by the flexible concept of "reason­ ableness," and a certain amount of detrimental impact may be recognized as law­ ful. In the case of non-riparian use, there must be no injury in order for the use to be lawful. This two-measure standard may serve as a significant constraint on non-riparian water use . . Interstate Effects Interstate effects of water use · and development have increasingly played an important role in water resources management in Virginia. Interstate problems primarily have involved the States of Maryland and North Carolina and the Dis­ trict of Columbia. Apportionment of low flows in the Potomac River has constituted a major inter­ state issue. An agreement 60 establishing a procedure for apportionment was signed in early 1978 by the U.S. Army Corps of Engineers, the States of Mary­ land and Virginia, the District of Columbia, the .Washington Suburban Sanitary Commission, and the Fairfax County Water Authority. The formula for dividing the flow is based on the ratio of the average daily winter use of each user to the average daily winter use of all users. This ratio is applied to the amount of water available in the Potomac (after deduction of a minimum flow require­ ment) and all other sources. This calculated value, less the amount available to each user by use of the maximum capacity practicable from all other sources, represents the allocated share of Potomac water for such user.61 With regard to Virginia's capability to enforce the provisions of the agreement against us~rs of water from the Potomac, the State Attorney General has indi­ cated a potential problem due to the lack of state controls over withdrawals.62 To make the agreement enforceable, new legislation may be required. Several water management issues have involved Virginia and North Carolina jointly. Prominent examples have included ground-water withdrawals from com­ mon coastal plain aquifers; the now defunct Blue Ridge project on the New River; and, more recently, proposals developed by the Corps of Engineers for increasing the water supply of the tidewater area of Virginia that originally included alternatives involving interstate diversions from North Carolina. Due to North Carolina objections, two alternatives involving diversions from within North Carolina boundaries have been dropped from further consideration· by the Corps.63 One of these alternatives, the proposed Chowan River withdrawal, represented the least cost solution in terms of needed investment in facili ­ ties. 64 Most of the alternatives remaining under consideration, although con­ sisting of proposed diversions from inside Virginia, involve streams that flow into North Carolina, creating the potential for additional conflict. The existence of common water resource problems led the Governors of Virginia and North Carolina to enter into a cooperative agreement65 in 1974. Activities encompassed in the agreement include water resource planning, reservoir devel­ opment in river basins common to both states, and ground-water withdrawal in adjoining coastal areas. Provision is made for formulation of " ... suitable institutional arrangements for interstate. and federal cooperation on water resources matters that are of mutual interest to the two states."66 The com­ mittee formed to implement the agreement has been relatively inactive in recent years. 315 Saline Water Intrusion Intrusion of saline water is a potential problem both with regard to coastal streams and coastal plain aquifers. In the case of streams, interbasin trans­ fers or other large scale modification of flow conceivably could result in increased salinity in lower reaches of the stream with reduced flow. With regard to ground water, concern exists that pumping will induce saline water ·into fresh water portions of coastal plain aquifers. Since movement of saline water is the result of modification of natural hydro­ logic systems, control consists of application of allocation measures. Thus protection of natural salinity ·patterns in streams is primarily a function of the riparian doctrine and other controls on development such as specification of flow releases from reservoirs. Control of subsurface saline intrusion is within the scope of the Ground Water Act of 1973. Both designated management areas are in regions of potential intrusion problems. Effective utilization of existing controls is restricted, however, by data limitations. Emergency Use Virginia has no formal institutional mechanism specifically designed for emergency allocation of water. . In the case of streamflow, this situation arises from the lack of allocation controls beyond the riparian doctrine. Ground-water allocation controls applicable in designated management areas do not contain provisions applicable to emergency situations. The Virginia Emergency Services and Disaster Law of 197367 includes general provisions applicable to resource shortages. The Governor is authorized to declare a "local emergency" as the result of a resource shortage upon petition of the local governing body when a sufficient threat of disaster exists.68 Once such a declaration is made, local governing bodies assume special powers to combat the disaster and protect health and safety. INSTREAM USE Scenic River Protection A primary manifestation of concern for instream water use in Virginia's insti ­ tutional structure for water management. consists of the Scenic Rivers Act69 (SRA), which declares that preservation of certain rivers or sections of rivers for their scenic values is a beneficial purpose of water resource policy. The Act provides mechanisms for identification of these streams. · SRA provides for identification of potential scenic rivers by the Virginia Com­ mission of .Outdoor Recreation (COR). COR is responsible for making studies of streams and recommending to the Governor and the General Assembly those which qualify for designation. The original scenic rivers study was accomplished with the aid of a consultant. From the more than 70 streams given considera­ tion, 26 were recommended by the consultant for inclusion in the system. Sub­ sequent review by the Commission increased the number to 29. The streams 316 included in the original study were compared and evaluated through considera­ tion of six factors: canoeing, fishing, notable natural features, notable historical and archaeolo5ical features, water quality, and natural conditions of banks and shoreland.7 The procedure for official designation of a stream as a scenic river involves a detailed individual study by COR and approval by the state legislature. The agency -to be responsible for management of a scenic river is selected by the General Assembly at the time it designates the stream as a part of the scenic rivers system. Since COR is not intended to function as a management agency, other organizations must be selected to function in this capacity. The Divi­ sion of Parks of the Department of Conservation and Economic Development and local or regional park authorities are likely candidates for designation as management agencies. The Commission of Game and Inland Fisheries is also a possibility although restrictions concerning use of funds for purposes other than hunting or fishing71 present a limitation. The primary effect of scenic river designation for a particular stream is that future project planning in connection with the stream must give full consider­ ation to scenic resources before a plan for use and development is approved. One general prohibition applies to the construction of dams or other struc­ tures which impede the natural flow, unless the obstruction is specifically authorized by the General Assembly. This provision does not affect the sov­ ereign power of the federal government to exercise control over navigable waters of the United States. Such control conceivably could be manifested through construction by a federal agency, such as the Corps of Engineers, or through licensing of private development projects by such federal regulatory agencies as the Federal Power Commission. In the case of federal construction, the problem may not be significant since these projects normally are initiated only where state support exists. The federal licensing of private projects in state-designated scenic rivers is perhaps a greater possibility. The United States Supreme Court has held that 7rovisions of state law will not be per­ mitted to obstruct federal control. 2 To date COR has conducted detailed studies and recommended designation of several potential scenic rivers, but reaction to COR proposals has been mixed. Legislative approval has been given to sections of five streams: a 26-mile segment of the Rivanna River in Fluvanna County; a 27.5-mile section of Goose Creek and a 16-mile section of Catoctin Creek, both in Loudoun County; a 5-mile segment of the Appomattox River in Dinwiddie and Chesterfield Counties and the City of Petersburg;73 and a 10.8-mile reach of the Staunton River in Campbell and Halifax Counties.74 Some of the COR proposals were never officially con­ sidered by the Legislature. Translation of scenic river proposals into a form for consideration requires introduction as proposed legislation, and sponsor­ ship in some cases apparently was not politically palatable in view of expressed opposition. Implementation of the scenic rivers program has proven to be controversial due to the basic confrontation between preservation and development interests. Opposition to scenic river proposals has often been voiced within the area of the stream under consideration due to concern over possible economic loss resulting from constraints on development of property. Local support has been 317 greatest in those situations where scenic river designation has been cast in the role of the lesser of two evils, e.g., where an impoundment project has been proposed. In some situations, local opposition has served to veto COR proposals prior to consideration by the Legislature, thereby violating the underlying concept of SRA that preservation of certain streams in their natural state is a matter of state-wide concern and benefit. Maintenance of Low Flows Another fundamental aspect of water law relative to instream use is the main­ tenance of minimum flows. Concern for protection of low flows is expressed in legislative guidelines for development of state water policy. The principles prescribed for consideration in policy development include the following pro­ vision: The maintenance of stream flows sufficient to support aquatic life and to minimize pollution shall be fostered and encouraged.75 The policy statement76 adopted by the State Water Control Board pursuant to legislative mandate includes the following statements relative to. beneficial use of water: The natural values and natural processes occurring in water resources in an undisturbed state constitutes a sub­ stantial social and eco1:0mic benefit to the citizens of the Commonwealth, and protection of these processes should be considered in any resource management plan. Flow releases from reservoirs for the purpose of maintain­ ing minimum flows necessary for prevention of eutrophic conditions (due to natural sources); protection of fish and wildlife values, marine organisms; and protection of aesthetic values will be considered as beneficial uses.77 One mechanism for implementation of these policy provisions consists of state control over reservoir operation. Two independent provisions for approval of reservoir releases exist: 1. State Water Control Board authorfty to certify that discharges will comply with water quality requirements78 and 2. State Corporation Commission authority to regulate hydroelectric dams and other dams in certain types of waters.79 The potent.ial for conflict between these provisions was realized when the two agencies attempted to prescribe different minimum releases from a proposed Vir­ ginia Electric and Power Company reservoir on the North Anna River. The Attor­ ney General of the Commonwealth resolved the conflict by determining that sec authority is superior to that of the SWCB in situations of concurrent juris­ diction. BO 318 With the exception of control over reservoir releases, there is no direct admin­ istrative mechanism for preservation of minimum flows due to the non-existence in Virginia of an administrative program for streamflow allocation. Of course the riparian doctrine does provide a degree of protection through its require­ ment for sharing of available water among riparian landowners. Examples can be found where the courts in certain states have prohibited diversions that would have destroled recreational and aesthetic values dependent on maintenance of low flows.8 This issue does not appear to have been considered by the Vir­ ginia Supreme Court. Public Access Interest in the legal aspects of the public access question in Virginia has increased substantially in recent years. One significant reason for greater interest is the establishment of the previously discussed state scenic rivers system intended to protect certain streams from development, particularly dam construction. Implementation of this program has been controversial with riparian landowners concerned with restrictions on property use. A second development responsible for increased interest in the issue of public vs. pri ­ vate rights is the construction on ·the Jackson River of the Gathright Dam, a Corps of Engineers project that is expected to create a downstream cold water fishery in a stream traditionally considered to be private in nature. The downstream fisheries effect is an interesting aspect of the project since it has been viewed as mitigating the loss of upstream fisheries and wildlife values due to construction of the reservoir. The losses from reservoir con­ struction have been considered particularly severe by fishermen and hunters due to the fact that most of the area to be inundated consists of a state wild­ life management area noted for its exceptional trout fishery and population of deer and . wild turkey. Therefore the public access conflict with regard to the downstrea~ fisheries enhancement aspects of the Gathright project promises to become a highly controversial issue. It is an interesting coincidence that the same stream on which the Gathright project is being constructed was the stream in question in the only court case to date concerning public recreation rights in streams to have been decided by the Virginia Supreme Court. This 1955 case, Boerner v. McCallister,8 2 arose as a suit by a landowner to enjoin another party from fishing in the portion of the Jackson River flowing through his property. The fisherman had fished in the stream at the location in question on numerous occasions and maintained that the public possessed this right of use. The court disagreed with this position and prohibited further fishing expeditions. The court's decision in Boerner was based on consideration of the two issues that are generally fundamental in the determination of public rights: the navigability of the stream in question and the ownership of its bed. These two factors are not independent; the navigability of a stream is one of the factors that determines the ownership of the streambed. In the usual case, the beds of navigable streams are publicly owned, with the right of public access well established, while the beds of non-navigable streams are the property of adjacent landowners, with all recreational rights vested in those landowners. However, a complication in the application of this rule arises because of the 319 fact that bed ownership on Virginia streams is based on other considerations in addition to the navigability issue. Because of this fact, it is possible for certain navigable waters to have privately owned beds while certain non-navi­ gable waters may have publicly owned beds. Thus both the navigability and bed ownership issues are basic to the overall evaluation of the public access ques­ tion. Public Navigation Rights With regard to the navigability issue, an important question in need of con­ sideration is the matter of what criteria to use for classifying a given stream as navigable or non-navigable. An additional concern is whether recreational pursuits such as canoeing and fishing come within the accepted meaning of the term "navigation." This latter concern is of primary significance in any situ­ ation where the bed of a navigable stream is privately owned. The question of what constitutes a navigable stream has been subjected to two different developments--one for the purpose of defining the extent of federal jurisdiction and another primarily at the state level of government for pur­ poses of determining public rights and questions of bed ownership. Some of the states have accepted a very broad definition of navigability that includes all streams that are susceptible to recreational boating such as canoeing·.83 By defining navigability itself in terms of potential for recreational use, these states have removed many of the restraints on public access. However, the Virginia Supreme Court has not adopted this position but to date has defined navigability solely in terms of a stream's capacity for commercial use.84 Ap­ plication of this criterion obviously results in fewer streams being . declared navigable than would application of the recreation standard. With regard to the question of what is included in the concept of navigation, there is also substantial variation among the states. Although some states have adopted the position that the right of navigation does include recrea­ tion, 85 Virginia has not taken this position. In fact, there is indication that this position may be unacceptable to the Virginia Supreme Court. In the Boerner case, the court indicated that the interest of the public in a navi­ gable stream may be limited to navigation. However, the stream in question had been held to be non-navigable, making this statement irrelevant to the decision and therefore of little value as legal precedent. In a 1932 case,86 the court had been explicit that the rights of navigation and fishing in tidal waters are not of equal standing. The distinction was based on the view that navigation was a more fundamental right than fishing. This view may have been modified by recent amendment of the Virginia Constitution recognizing recreation as a valid objective of the Commonwealth's natural resources policy.87 To summarize the status of the navigability issue, it appears that Virginia has adopted a narrow view of what constitutes a navigable stream and has leaned toward acceptance of the position that navigation itself is limited to com­ mercial activity, at least where the bed of a stream is in private ownership. It should be emphasized that the Virginia court has never specifically held that navigation does not include recreation, and it therefore could adopt at some future date the position that recreation is included without having to 320 overturn established precedent. But to date, the decisions of the court have not used the navigability issue in support of public access for recreation. Therefore the question of bed ownership takes on added significance. Ownership of Submerged Lands Evaluation of the bed ownership issue requires consideration of legislative pronouncements on the subject, the system of land grants in effect during colonial times and after independence, and judicial interpretations of these grants. With regard to legislative provisions, of primary interest is a stat ­ ute adopted in 178088 with respect to the eastern part of the state and extend­ ed to the western portion in 180289 providing that all ungranted streambeds would remain the property of the Commonwealth to be used by the public. Thus the beds of both navigable and non-navigable streams on lands transferred from public to private ownership after these dates would not have been transferred but would have remained public. Of course a basic determinant of the significance of this statute is the amount of land that was still in public ownership on its effective date. A random check of land grants in some of the western counties90 indicates that grants after the 1802 effective date of the statute were not uncommon, but a compre­ hensive evaluation of these grants as they affect the beds of streams has not been undertaken. Communication with the office of the State Archivist indi­ cates that the Commonwealth has no maps showing the location of land grants, and the data has not been organized in any systematic manner. If this statute does not apply because land grants were made prior to its effective dates, determination of bed ownership depends on interpretation of the common law as it existed in England and was subsequently developed in Vir­ ginia. By its action in adopting the statute, the General Assembly implicitly recognized that, at least to some extent, prior land grants had included stream­ beds. However, the decisions of the courts fail to provide a clear indication of the extent to which streambeds were actually granted. Under the English common law, the Crown held title to the beds of all tidal waters while the beds of all non-tidal waters were owned by adjoining land­ owners. 91 The English common law in large part was adopted in Virginia upon independence92 and continues to apply in a variety of areas. With regard to ownership of land under water, the English rule is still in effect where tidal waters and non-navigable streams are involved. It is well established in the law of the state that riparian property includes the beds of non-navigable streams,93 provided of course that the land was granted prior to the 1780 and 1802 statutory dates. Where the stream forms a property boundary, each owner takes to the center of the stream. If one owner holds title to land on both sides of a non-navigable stream, he owns the entire streambed at that point. In the case of tidal waters, it is well established tht subaqueous lands are publicly owned,94 with the limits of riparian property established by statute at low water mark.95 Ownership of the beds of non-tidal navigable streams, however, is not as well defined. Upon independence from England, the law in some of the colonies under- 321 went modification that changed the English rule of private ownership of all beds of non-tidal waters. Due to the greater occurrence and significance of non-tidal navigable rivers in the colonies, their beds came to be viewed as public in nature, as were the beds of tidal waters. The ownership of the beds of navigable streams that are non-tidal is an impor­ tant issue regarding public recreation rights in Virginia. One reason for this significance is the existence of a substantial number of such streams. Sec­ ondly, the Virginia court has indicated that the right of navigation may not include the right of fishing where beds are privately owned. This question has not been specifically decided, but the possibility of this position being adopted increased the potential importance of the ownership issue. In spite of this significance, however, Virginia does not appear to have established a well-defined position with regard to the ownership of the beds of non-tidal navigable streams, and this aspect of the public rights issue is one of the most troublesome. The leading Virginia case involving ownership of the beds of non-tidal navi­ gable streams is Old Dominion Iron and Nail Co. v. C&O Railway Co.,96 decided in 1914. The case involved a controversy between the owner of an island lo­ cated at a point in the James River one mile above the limits of tidal action and another party who was diverting water upstream from the island. The owner of the island traced the title back to a grant from.the Crown of England. The party diverting water had acquired water rights originally granted by the state legislature for improving navigation and other purposes. This diversion inter­ fered with the water use of the downstream owner who brought suit to assert its riparian rights and the claim that riparian owners on all non-tidal navigable streams own the bed subject only to the public right of navigation. The State Supreme Court chose not to address this general issue but limited its decision to the relatively small section of the James River immediately involved in the case. The decision in the case was a denial of the claims of the owner of the island as to private rights in the river. However, the holding was more the result of the long period of time that had elapsed prior to the complaint being raised rather than on the original existence or nonexistence of the claimed rights. The court noted that the owner of the island and its predecessors in title had stood by in silence for 125 years since the state granted the water rights on which the controversial diversion was based. It therefore refused to give cur­ rent recognition to private rights that would have led to the destruction of property rights based on state ownership and control. Although the Old Dominion Iron and Nail Co. case was decided in favor of public ownership of the streambed in question, the case provides no resolution of the general issue of ownership of the beds of non-tidal navigable streams. The Court's self-imposed restriction of its considerations to a small portion of the James River and its heavy reliance on the special circumstances that exist ­ ed in ~hat particular situation led to the decision having little value as legal precedent. Perhaps the only general conclusion to be drawn from the decision is that exercise of long-term control over a navigable stream by the state tends to negate claims of private bed ownership and other rights that are asserted at a substantially later time. 322 This hypothesis has not been tested before the court with regard to other loca­ tions in the state, but the state legislature has authorized navigation improve­ ments on a substantial number of streams, including some that are relatively small in size.97 It would appear that a determination of the impact of such an authorization on bed ownership, and also on the navigability issue, with regard to a particular stream would require an evaluation of the extent to which the navigation improvements were carried out and the actual utilization of the stream in question for public purposes. The final resolution of these ques­ tions would likely require a judicial decision in each individual case. Consideration of the other cases that have dealt with the bed ownership issue also does not resolve the status of non-tidal navigable streams. Language used in some of the decisions suggests that the beds of all navigable streams are publicly owned. In the 1798 case of Home v. Riaha:Pds,98 for example, it is stated that 11 ••• the soil of navigable rivers cannot be granted •..• 11 99 The decision contains no discussion of whether the section of stream involved, the Rappahannock River ~t Falmouth, was tidal, but it is likely that the site was above tidal action since the case involved construction of a mill to uti ­ lize water power. Other cases exist indicating that private ownership o.f such beds exists. In Martin v. Bevertey,100 a case decided in 1805, the court noted that Virginia law admitted 11 ••• the beds of navigable waters are granted to individuals. 11 101 The court in the much later case of Old Dominion Iron and Nail Co. apparently did not view this area of law as settled since it skirted the general issue. Subsequent cases also have not definitively settled the issue; thus it appears that the matter remains unresolved. LAND USE RELATIONSHIPS Land Use Controls Authority for land use planning and control in Virginia traditionally has been delegated to local political subdivisions. Prior to 1975, state law authorized the governing body of each county and municipality to create a planning commis­ sion, but creation of such commissions was not specifically required. The 1975 session of the General Assembly amended the existing legislation to require their creation by July 1, 1976.102 A local planning commission is to consist of at least five but not more than 15 members appointed by the governing body of the county or municipality.103 The principal duty of each local planning commission is the preparation of a comprehensive plan for the physical development of land within its jurisdiction. Statutory guidelines for such plans provide for a survey of natural resources during plan preparation and specify that the plan may include the 11 ••• designation of areas for various types of public and private development and use, such as different kinds of residential, business, industrial, agricultural, conservation, recreation, public service, _flood plain and drainage, and other areas ...• 11 104 This provision appears to authorize incorporation of water and other natural resource considerations into the planning process but leaves such matters largely to the discretion of the local commissions. In addition to authority to conduct planning, authority to adopt and implement 323 controls over land use is also delegated to local governmental units.l05 The governing body of any county or municipality may enact a zoning ordinance through which special controls can be enforced. Provisions of the enabling legislation for zoning specifying the purposes of such ordinances and the extent of regulatory authority delegated are essentially silent with regard to water, but it is provided that consideration is to be given to " ... conser­ vation of natural resources .... "106 The fact that responsibility for land use planning and implementation of con­ trols has been delegated to counties and municipalities creates a significant role for local government with respect to water resource management. Regula­ tion of land use is an essential element of management since effective alter­ native control mechanisms to accomplish certain program objectives do not exist. Belated recognition has been given .to the fact that flood damage abate­ ment programs must encompass controls over floodplain utilization as well as structural measures to control stream flow. Current interest in non-point sour­ ces of water pollution attests to the importance of land use practices to water quality protection. These and other relationships between water and land man­ agement indicate the potential significance of local authority concerning land use. Protection of Ground-Water Recharge Areas Specific legal mechanisms for protection of ground-water recharge areas do not exist. It would appear that such control measures could be incorporated into local land use measures, but state government has no direct authority in this area. Problems indicating the need for increased protection of recharge areas have not arisen in Virginia. Reservation of Reservoir Sites As in the case of protection of ground-water recharge areas, reservation of reservoir sites must be accomplished within the general legal framework of local land use controls as supplemented by land acquisition as needed. Acqui­ sition of land for future use as a reservoir site would generally not be undertaken by state government under existing institutional arrangments since the state is not involved in the direct ownership and management of major reservoir facilities. Property Damage Several elements of Virginia's water law reflect concern for reduction in prop­ erty damages from flood waters and surface runoff. The State Legislature has declared a policy to reduce flood damage through management of flood plain use.107 Authority for implementing controls applicable to flood plain use is vested in local government, but the state provides coordination and assistance through the State Water Control Board to encourage appropriate local action. A goal of this effort is to enable all local governmental units subject to recur- 324 rent flooding to qualify for particip.1tion in the National Flood Insurance Program. Legal controls over individual activities increasing damage from floodwater or surface runoff have been developed in the common law. In the case of streams, structures that impede the flow and result in flooding of lands are generally unlawful,108 except where damage results from unprecedented floods that could not reasonably have been anticipated.109 This restriction on obstructing the flow of streams applies to flood protection works, and the landowner who con­ structs such works may be liable for resulting injury to others.110 The law of diffused surface water places considerable emphasis on defining lia­ bility for injury associated with modifications of natural drainage patterns. Virginia purports to follow the common enemy doctrine in determining such lia­ bility. lll This doctrine theoretically allows each landowner to protect his property without liability for adverse impact on others, but the doctrine has been modified in Virginia and most other states where it is given nominal acceptance to substantially limit the right to interfere with runoff. This right in regard to surface water may not be exercised wantonly, unnecessarily, or carelessly; but is modified by that golden maxim of the law, that one must so use his own property as not to injure the rights of another. It must be a reasonable use of the land for its improvement or bet­ ter enjoyment, and the right must be exercised in good faith, with no purpose to abridge or interfere with the ~ights of other, and with such care with respect to the property that may be affected by the use or improvement as not to inflict any injury beyond what is necessary, Where the exercise of the right is thus guarded, although injury may result to the land of another, he is without remedy 112 In addition to the above modifications, there are limitations on the rights of a property owner to free his land of surface water to the injury of others. The right thus modified, has also its exceptions. One exception is that the owner of the land can not collect the water into an artificial channel or volume and pour it upon the land of another to his injury. The right to fend off surface water does not extend that far . ll3 One situation in which a property owner normally may rely on the common enemy doctrine is in the construction of buildings on his property. Although there is authority to the contrary, it has been generally held, either pursuant to the common-law rule or as an exception to the civil-law rule, that the owner of a lot in a city or town may make changes or alterations in the surface thereof essential to its enjoyment regardless of the effect on the flow of surface waters, provided he has not been negligent .... 114 325 In Harris Motor Co. v. Pulaski Furniture Co., 115 the court said that the denial of the right of a property owner to construct a building on his land in the normal and customary manner would destroy the rule that surface water is a com­ mon enemy which each owner may fight off as best he can. But the court added that it did not mean to imply that negligent erection of a building would not produce liability. The primary principle upon which the determination of lia­ bility is based is whether the actor practically could have avoided the injury in whole or in part without undue hardship. Shoreline Protection The General Assembly has recognized shore erosion as a problem that affects all the citizens of the state and has declared a state policy of effecting solu­ tions to the problem.116 Property encompassed within the policy declaration includes all land bordering a large body of water, with specific application to " ... all tidal rivers in Virginia, the Virginia portion of the Chesapeake Bay shoreline, and the Virginia portion of the Atlantic Ocean shoreline. 11 117 The functions of the Commission in this program are specified in the following statutory provision: In addition to the other duties and responsibilities con­ ferred by this .chapter, the Virginia Soil and Water Con­ servation Commission shall have the duty and responsibility to make the necessary coordination of shore erosion control programs of all State agencies and institutions and to secure the cooperation and assistance of the United States . and any of its agencies to protect waterfront property from destructive erosion; to evaluate the effectiveness and practicability of current programs; and to explore all facets of the problems and alternative solutions to deter­ mine if other practical and economical methods and prac­ tices may be devised to control shore erosion. Such coor­ dination shall not restrict the statutory authority of the individual agencies having responsibilities relating to shore erosion control.118 In addition to this specific program, other general erosion control programs have potential application to shoreline protection. Of primary interest in this regard are the soil and water conservation district prograrns119 and the erosion and sediment control programs of local government.120 Wetlands Protection Noting the consequences of continuing wetlands destruction, the Virginia Gen­ eral Assembly in the 1972 Wetlands Actl21 declared their preservation to _ be the public policy of the Commonwealth, with provision for accommodation of necessary economic development in a manner consistent with such preservation. The Wetlands Act specifies that development in "Tidewater Virginia," defined to include 31 counties and 16 cities, " ... shall be concentrated in wetlands of lesser ecological significance, in wetlands which have been irreversibly 326 disturbed before July 1, 1972, and in areas of Tidewater Virginia apart from wetlands. 11 1 22 As used in the act, the term "wetlands" generally includes all land contiguous to mean low water and bounded by an upper elevation 1.5 times the applicable mean tide range above mean low water and upon which certain specified vegetation is growing on or after July 1, 1972. In the case of Back Bay, the North Landing River, and their tributaries, the definition applies to all marshes subject to regular or ~ccasional .tidal flooding and upon which cer­ tain vegetation is growing. The mechanism for wetlands protection exists in the form of a wetlands zoning ordinancel23 which may be adopted by any county, city, or town. The wetlands zoning ordinance recommended in the legislation provides that non-exempted use or development of wetlands requires approval in the form of a permit to be granted by the wetlands board that must be created by the governing body of any county, city, or town enacting the ordinance. Several activities are exempted from the permit requirement, including noncommercial construction on pilings; shellfish operations; noncommerciai outdoor recreation activities; agricultural operations;· conservation programs of state agencies; construc­ tion or maintenance of properly authorized aids to navigation; emergency health decrees; normal maintenance, repair or addition to presently existing roads and other facilities, provided that no waterway is altered and no addi- · tional wetlands are covered; governmental activity on wetlands state-owned or leased; and normal maintenance of man-made drainage ditches, provided that no additional wetlands are covered.124 Certain other projects on which action has been initiated are exempted from the permit requirement by a grandfather pro­ vision. Application for a permit to use or develop wetlands other than for those activities set out above is made to the wetlands board, with. copies being sent to the Marine Resources Commission and the Virginia Institute of Marine Science. · A decision regarding the application cannot be made prior to a public hearing. The board must ba~e its decision on testimony concerning the project and the impact of the development on the public health and welfare as expressed by the policy of preserving wetlands. The board grants the permit if it finds " ... that the anticipated public and private benefit of the proposed activity exceeds the anticipated public and private detriment and that the proposed activity would not violate or tend to violate the purposes and intent of {wet­ lands leg.islation] .... 11 125 Control over wetlands has been formulated as a zoning ordinance because the land involved lies above mean low water and therefore is in private o~er- ship .126 Any attempt to regulate use must give consideration to property rights as protected by the Constitution. Zoning responsibilities have tradi­ tionally been delegated to the localities in the Commonwealth, and this trend has been followed in this situation. However, provision is made for state administration of the wetlands zoning ordinance prior to its enactment by the localities in the event that a particualr political subdivision does not assume this responsibility. The Commission has indicated that most localities have chosen to adopt the ordinance and exercise control over the use of their own wetlands. Data con­ cerning the type of action taken on applications shows that a large majority 327 has been approved. However, the Commission has stated that few of these per­ mits have authorized the destruction of marshland and that, in most cases, applications have been amended to lessen the adverse environmental effect of the proposed project.127 Guidelinesl28 have been developed by the Commission on the basis of studies conducted by the Virginia Institute of Marine Science to assist localities in regulation of wetlands use. These guidelines classify wetlands by type and set forth the environmental consequences of their alteration. Factors used in the evaluation process consisted of vegetative production and detritus avail ­ ability, waterfowl and wildlife utilization, erosion buffering, water quality control, and flood buffering. With regard to alteration of wetlands, criteria are presented which are designed to reduce the adverse environmental impact associated with such alteration. In addition to continuing responsibilities with regard to guidelines for wet­ lands use, a principal role of the Marine Resources Commission involves review of decisions by the wetlands board in the situation where the wetlands zoning ordinance is adopted by a county, city, or town. The Commission reviews board decisions when 1. An appeal is taken from such decision by the applicant for a per­ mit or by the county, city, or town where the wetlands are located; 2. The Com.missioner of Marine Resources requests such review because of the belief that the policy and standards of the Wetlands Act have not been adequately achieved or that any guidelines which may have been promulgated by the Com.mission have not been rea­ sonably accommodated; or 3. Twenty-five or more freeholders of property within the county, city, or town in which the proposed project is located sign and submit a prescribed petition to the Commission.129 The Com.mission may affirm, modify, or reverse the decision of the wetlands board, with an appeal to the courts available. Parties who are authorized to request review of the actions of a local wetlands board are limited to applicants, governing bodies of political subdivisions where the wetlands are located, and property owners within the governmental subdivision where the wetlands are located. No provision is made for the intervention of interested individuals or organizations from the state as a whole. The Commission is directly responsible for the administration of wetlands zoning ordinances in any county, city, or town until the ordinance is adopted. A person who proposes to conduct an activity requiring a permit must make application directly to the Commission in this situation.130 328 CONCLUSION The foregoing analysis has identified several areas of deficiency in the institutional framework for water resources management in Virginia. These deficiencies vary in form and significance. Some of the more urgent areas in need of attention include: 1. Basic water allocation mechanisms, 2. Conjunctive management of surface and ground water, 3. Interstate water management, 4. Protection of instream values, 5. Public access, and 6. Interrelationships .between water and land management. With regard to water allocation mechanisms, creation of an administrative pro­ gram for analysis and evaluation of proposals for major water resource devel­ opments is an urgent need. At present there is no effective mechanism for review of such proposals from a statewide perspective. The absence of this machinery makes rational evaluation prior to decisions on water project~ impos­ sible and creates much confusion on the part of both proponents and opponents of proposa~s. Integration of the law of watercourses with that applicable to ground water is essential to comprehensive management of the resource. Although separate treatment may be feasible and even desirable under cer.tain conditions, the absence of mechanisms for ~oordination ignores basi'c physical relationships and constitutes a serious flaw in the legal framework. The trend to apply separate law that was initiated in the common law and perpetuated in statutory enactments should be reversed and conjunctive management established. Recent events with regard to water resource development proposals within the Commonwealth emphasize the need for institutional mechanisms for consideration of water management issues having interstate aspects. Several sources of both surf ace and ground water are of mutual concern to Virginia and a neighboring state. North Carolina has been involved in the greatest number of recent in­ terstate management questions. Since one state s~ould not expect to exercise total control over the water of an interstate source, institutional mechanisms for evaluation of alternatives and resolution of conflicts are essential. A first step should consist of re-activation of the Virginia-North Carolina water management agreement. Protection of instream values must be a fundamental component of the state's water management program. The existing .scenic rivers program is an appropriate first step, but the policy enunciated by the enabling legislation that streams possessing exceptional natural values constitute a statewide value has not been fully recognized in the implementation of the program to date. In addition, there is need for protection of minimum flows adequate to preserve instream 329 values. Such protection must be an element of the state's water allocation program and should be based on a thorough assessment of minimum flow require­ ments for biological resources and other instream uses. Closely related to the ne.ed. for protection of instream values and water use is the need for better definition of the ~ights of public access. The interests of a substantial segment of society indicate a need for greater rights of access than have been given recognition by the Virginia Supreme Court to date. Existing law leaves several basic public access questions unresolved, creating considerable uncertainty that can only be resolved by further development of the law. The traditional separation of water management and land use control between state and local levels of government constitutes a-sign~ficant impediment to an effective water resources management program. Numerous management concerns such as reservoir site protection, flood damage reduction., and water quality protection are actually land use problems to a large extent. State government is severely handicapped by the absence oiaufhority in some of these areas, suggesting the need for re-evaluation of certain delegated authority, espe­ cially with regard to activities having water-resource impacts or other effects that extend beyond local boundaries. FOOTNOTES 1. Virginia Hot Springs Co. v. Hoover, 143 Va. 460, 467, 130 S.E. 408 (1925). 2. The court discussed this issue in Toum of Gordonsville v. Zinn, 129 Va. 542, 555, 106 S.E. 508 (1921). 3. Va. Code Ann. sec. 62.1-104(5) (Supp. 1977). 4. Davis v. Town of Harrisonburg, 116 Va. 864, 869, 83 S.E. 401 (1914). 5. Hite v. Town. of Lurray, 175 Va. 218, 8 S.E. 2d 369 (1940). 6. See, e.g.,Id., p. 225. 7. Virginia Hot Springs, supra, note 1. 8. Toum of Gordonsville, supra, note 2, p. 560. 9. Cornett v. Rhudy, 80 Va. 710 (1885); Nichols v. Aylor, 7 Leigh (34 Va.) 546 (1836); Stokes v. The Upper Appomattox Co., 3 Leigh (30 Va.) 318 (1831). 330 10. Town of Gordonsville, supra, note 2. 11. Town of Purcellville v. Potts, 179 Va. 514, 19 S.E. 2d 700 (1942). 12. Town of Gordonsville, supra, note 2, p. 562. 13. Pernell v. City of HendePaon, 220 N.C. 79, 16 S.E. 2d 449 (1941). 14. Town of Purcellville, supra, note 11, p. 521. 15. United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950). 16. Va. Code Ann. sec. 62.1-104 et seq. (1973), as amended (Supp. 1977). 17. Oliver v. City of Richmond, 165 Va. 538, 542, 178 S.E. 48 (1935). 18. See, e.g., MinneapoZia Mill Co. v. St. Paul Water Commissioners, 56 Minn. 485, 58 N.W. 33 (1894). 19. 11 Hennings Statutes, p. 450 (1784). 20. The history of these waters is discussed in Old Dominion Iron and Nail Co. v. C&O Ry., 116 Va. 166, 81 S.E. 108 (1914). 21. Agreement between the City of Richmond and the James River and Kanawha Company, March 3, 1880. 22. Agreement between the City of Richmond and the Chesapeake and Ohio Rail ­ way Company, November 16, 1928. 23. See, City of Richmond Ordinance No. 72-223-227, September 25, 1972, and Ordinance No. 72-224-228, September 25, 1972. 24. Va. Code Ann. sec. 62.1-44.36 (1973). 25. Id. 26. Virginia State Water Control Board, "Connnonwealth of Virginia Water Resources Policy" (1974). 27. Id., sec. 3.D. 28. Va. Code Ann. sec. 62.1-44.38 (1973). 29. Va. Acts of Assembly, 1972, ch. 728. 30. Va. Code Ann. sec. 62.1-45 et seq. (1973), as amended (Supp. 1977). 31. Id., sec. 62.1-80 et seq. (1973); sec. 62.1-104 (1973), as amended (Supp. 1977); sec. 62.1-116 (1973). 32. Id., sec. 29-1 et seq. (1973), as amended (Supp. 1977). 331 33. Ground Water Act of 1973, Va. Code Ann. sec. 62.1-44.83 et seq. (Supp. 1977). 34. Id., sec. 62.1-44.95. 35. Virginia State Water Control Board, "An Order of the Virginia State Water Control Board," January 27, 1975 . . 36. Virginia State Water Control Board, "An Order of the Virginia State Water Control Board," September 27, 1976. 37. Ground Water Act, supra, note 33, sec. 62.1-44.93. 38. Id., sec. 62.1-44.87. 39. Letter from Andrew P. Miller, Attorney General of Virginia, to Thomas R. McNamara, Chairman, Virginia State Water Control Board, January 8, 1976. 40. Ground Water Act, supra, note 33, sec. 62.1-44.97. 41. Id., sec. 62.1-44.lOO(e). 42. Miller v. Black Rock Springs Improvement Co., 99 Va. 747, 40 S.E. 27 (1901). 43. Heninger v. McGinnis, 131 Va. 76, 108 S.E. 671 (1921). 44. Clinchfield Coal Corp. v. Compton, 148 Va. 437, 139 S.E. 308 (1927). 45. Meeker v. City of East Orange, 77 J.J.L. 623, 74 A. 379 (1909). 46. Clinahfield, supra, note 44, p. 313. 47. C&W Coal Corp. v. Salyer, 200 Va. 18, 140 S.E. 2d 50 (1958); Oakwood Smoke­ less Coal Corp. v. Meadows, 184 Va. 168, 34 S.E. 2d 392 (1945); Couch v. Clinchfield Coal Corp., 148 Va. 455, 139 S.E. 314 (1927); Clinchfield, supra, note 44. 48. Stonegap Colliery Co. v. Hamilton, 119 Va. 271, 89 S.E. 305 (1916). 49. Couch, supra, note 47. 50. Agreement between the City of Norfolk and the County of Nansemond, April 1, 1967. 51. Va. Code Ann. sec. 62.1-105 (Supp. 1977). 52. See, e.·g., MacAPtor v. Graylyn Crest III SWim Club, Inc., 41 Del. Ch. 26, 187 A. 2d 417 (1963); Jones v. Oz-Ark-Val Poultry Co., 228 Ark. 76, 306 s.w. 2d 111 (1957). 53. Ground .Water Act, supra, note 33. 332 S4. Va . Code Ann. secs. 15.1-37, 15.1-332.1, 15.1-875, 15.1-1250.1 (Supp. 1977). SS. Town of Gor donsvi l l e, supra, note 2, p. 556. S6. Letter from Andrew P. Miller, Attorney General of Virginia, to Thomas J. Rothrock, Member, Virginia House of Delegates, April 25, 1972. 57. Vir ginia Hot Springs, supra, note 1, p. 467. SS. See, e.g., Taylor v. Tampa Coa l Co ., 46 So. 2d 392 (Fla. 19SO); Bohannon v. Conden Bend Drainage Dis t ., 240 Mo. App. 492, 208 S.W. 2d 794 (1948). 59. See, e.g., Hood v. Lle fki n, 88 R.I. 178, 143 A. 2d 683 (1958). 60. Potomac River Low Flow Allocation Agreement, January 11, 1978. 61. Id., article 2.C.2. 62. Letter from Anthony F. Troy, Attorney General of Virginia, to Robert V. Davis, Executive Secretary, Virginia State Water Control Board, January 11, 1978. 63. Norfolk District, Corps of Engineers, public announcement, March 22, 1978. 64. U.S. Army Corps of Engineers, Norfolk District, "Long Range Water Supply Study f or the Southside of Hampton Roads, Virginia: Description of Alternatives," November 21, 1977. 65. Agreement Between the Governors of North Carolina and Virginia Concerning the Conservation, Development and Management of Water Resources for Mutual Benefit, August 15, 1974. 66. Id., p. 2. 67. Va . Code Ann. sec. 44-146.13 et seq. (1976). 68. Id ., sec. 44-146.16(6). 69. Scenic Rivers Act, Va . Code Ann. sec. 10-167 et seq. (1973). 70. Virginia Commission of Outdoor Recreation, "Virginia's Scenic Rivers," p. 5 (1970). 71. See, Federal Aid to Fish Restoration Fund, 16 U.S. C.A. 777 et seq. (1974) and Federal Aid to Wildlife Restoration Fund, 16 U. S . C.A. 669(a) et seq. (1974). 72 . First Iowa Hydro Electric Cooperative v. Federal Power Commission, 328 U.S. 152 (1946). 73. Virginia Commission of Outdoor Recreation, The Virginia Outdoors, Vol. 7, No. 1, May, 1977, p. 1. 333 74. Virginia .General Assembly, HB 154 (1978). 75. Va. Code Ann. sec. 62.1-44.3.6(5) (1973). 76. Virginia State Water Control· Board, "Commonwealth of Virginia Water Resources Policy" (1974). 77. Id., sec. 3.2. 78. Authority created by letter from Linwood Holton, Governor of Virginia, to David Dominick, Commissioner, Federal Water Pollution Control Administra­ tion (predecessor of the U.S. Environmental Protection Agency), June 25, 1970. 79. Va. Code Ann. sec. 62.1-80 et seq. (1973). 80. Letter from Andrew P. Miller, Attorney General of Virginia, to A.H. Faessler, Executive Secretary, Virginia State Water Control Board, February 5, 1971. 81. See, .e.g., CoUens v. New Canaan Water Co., 155 Conn. 477, 234 A. 2d 825 (1967). 82. Boerner v. Macallister, l97 Va. 169, 89 S.E. 2d 23 (1955). 83. See, e.g., Muenah v. Publia Service Comm., 261 Wis. 492, 53 N.W. 2d 51.4 (1952). 84. Ewell v. Lambert, 177 Va. 222, 13 S.E. 2d 333 (1941). 85. See, e.g., Bohn v. Albertson, 107 Cal. App. 2d 738, 238 P. 2d 128 (1951). 86. CommoYMealth v. City of Newport News, 158 Va. 521, 164 S.E. 689 (1932). 87. Constitution of Virginia, Art. XI, sec. 1 (1971). 88. 10 Hen. (Va. ) Stat. (1780), p. 226. 89. 1 Va. Rev. Code (1819), p. 322. 90. Data acquired from the files of the U.S. Forest Service, Office of the Supervisor, Jefferson National Forest, Roanoke, Virginia. 91. See, Crenshaw v. Slate River Co., 6 Rand. (27 Va.) 245 (1828), p. 261. 92. Va. Code Ann. sec. 1-10 (1973). 93. Boerner, supra, note 82; Mead v. Haynes, 3 Rand. (24 Va.) 33 (1824). 94. City of Hampton v. Watson, 119 Va. 95, 89 S.E. 81 (1916); Taylor v. Com­ monwealth, 102 Va. 759, 47 S.W. 875 (1904). 334 95. Va. Code Ann. sec. 62.1-2 (1973). 96. Old Dominion Iron and Nail Co., supra, note 20. 97. See, e.g., 1847-48 Va. Acts of Asserribly, ch. 220, p. 238 concerning Potts Creek in Alleghany County and ch. 207, p. 226, 230 concerning Meherrin River in Greenville County; 1839 Va. Acts of Assembly, ch. 139, p. 97 conce·rning Craig Creek; 183 Va. Acts of Asserribly, ch. 164 concerning South River in Rockingham and Augusta Counties. 98. Home v. Richards, 4 Call. (8 Va. 441 (1798)). 99. Id., p. 446. 100. Martin v. Beverly, 5 Call. (9 Va.) 444 (1805). 101. Id., p. 447. 102. Va. Code Ann. sec. 15.1-427.1 (Supp. 1977). 103. Id., sec. 15.1-437. 104. Id., sec. 15 .1-446 .1. 105. Id., sec. 15.1-486. 106. Id., sec. 15.1-490. 107. Va. Code Ann. sec. 62.1-44.108 et seq. (Supp. 1977). 108. American Locomotive ~o. v. Hoffman, 105 Va. 343, 54 S.E. 25 (1906). 109. Director General v. Bryant's Adm'r., 127 Va. 651, 105 S.E. 389 (1920). 110. McGehee v. Tidewater Ry., 108 Va. 508, 62 S.E. 356 (1908). 111. Howlett v. City of South Norfolk, 193 Va. 564, 69 S.E. 2d 346 (1952). 112. Norfolk and W.R.R. v. Carter, 91 Va. 587, 592-93, 22 S.E. 517 (1895). 113. Id., p. 593. 114. Mason v. Lamb, 189 Va. 348, 356, 53 S.E. 2d 7 (1949). 115. Harris Motor Co. v. Pulaski Furniture Co., 151 Va. 125, 144 S.E. 414 (1928). 116. Va. Code Ann. sec. 21-11.16 et seq. (1975). 117. Id., sec. 21-11.17. 118. Id., sec. 21-11.18. 335 119. Id., sec. 21-1 et seq. (1975), as amended (Supp. 1977). 120. Id., sec. 21-89.1 et seq. 121. Virginia ·wetlands Act, Va. Code Ann. sec. 62.1-13.1 et seq. (1973), as amended (Supp. 1977). 122. Id., sec. 62.1-13.3 (1973). 123. Id., sec. 62.1-13.5 (1973), as amended (Supp. 1977). 124. Id., sec. 62.1-13.5(3). 125. Id., sec. 62.1-13.5(9)(b) (1973). 126. Id., sec. 62.1-2. 127. Virginia Marine Resources Commission, "Seventy-Fourth and Seventy-Fifth Annual Reports," p. 17 (fiscal years ending June 30, 1972, and June 30, 1973). 128. Virginia Marine Resources Commission, "Wetlands Guidelines," (1974). 129. Va. Code Ann., sec·. 62.1-13.11 (1973). 130. Id., sec. 62.1-13.9 (1973). 336 WATER RESOURCE PROBLEMS (Virginia) I 1. Surf ace Water Law Water Withdrawal uses and allocation 5 Instream uses 5 Saline water intrusion Land use relationships 5 £_!:._operty damage 4 Ownership of submerged lands 4 Con_iunctive use surface & ground water 5 Protection ground water recharge areas Emergency use z Interbasin transfer .) Interstate effects .) Shoreline protection 4 Wetland protection 3 Public access .) Reservation of reservoir sites 4 Water Administration Allocation standards & criteria 5 Data bases 4 Permit procedures 4 Regulation & enforcement 4 Agency structure & functions 4 Please mark as to priority using following code: 5 highest i l 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water 5 4 4 3 5 3 2 5 4 5 4 4 Rating of 4 or 5 indicates a belief that the p~oblem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address the problems. 337 THE ADMINISTRATIVE SYSTEM FOR WATER RESOURCES IN VIRGINIA Denis J. Brion Assistant Professor College of William and Mary Williamsburg, Virginia INTRODUCTION Virginia's geography and demography until recently have insured an abundance of water for natural and human consumption. Virginia is crossed or bordered by five major river systems, and the level of industrial development only now is beginning to cause strain on water resources, and then only in certain locali ­ ties. This rich endowment of water resources is reflected in the legal struc­ ture of Virginia. Allocation disputes continue to be. resolved by the applica­ tion of the ancient riparian doctrine rather than an administrative permit system typically adopted when, because of population growth and development, water begins to become relatively scarce. The administrative structure of Vir­ ginia government also reflects the historically infrequent incidence of water consumption disputes. Except for a relatively early legislative grant of authority to ·regulate water quality, the administrative agencies of Virginia have only recently begun to exercise limited power over water allocation. AGENCY STRUCTURE The primary water resources agency in Virginia is the State Water Control Board (SWCB). This agency has combined responsibilities for water quality regulation, water resources policy making and planning, ground-water regula­ tion, and dam safety regulation. SWCB was first established in 1946 as one of the early attempts by a state to achieve effective regulation of water quality. Interestingly, one of the major legislative purposes for its establishment was to insure that the quality of Virginia's lakes and streams, which at the time was relatively high, would be preserved in order to enhance the ability of Vir­ ginia to attract new industry. A series of legislative enactments in the 1970's expanded the scope of SWCB's jurisdiction beyond water quality regulation. In 1972, the General Assembly transferred to the agency the functions of the Water Resources Division of the Board of Conservation and Econom~c Development. The Division had been estab­ lished in 1966, with an initial administrative task of developing a _ substantial water resources data base. In 1973, the General Assembly enacted the Ground­ water Act, 1 giving SWCB certain limited regulatory powers over ground-water withdrawals. And in 1976, legislation for dam saf ety2 added further regulatory power to the agency's jurisdiction. 338 The organization of SWCB consists of a seven-member panel assisted by a sub­ stantial professional staff. The seven members of the Board are appointed by the Governor to fixed, staggered terms with the members electing their own chairman. An unusual feature of the Board is that its members are private citizens rather than compensated, full-time employees of the state. The Board staff, which consists of full-time professionals, is headed by an Executive Secretary who, although he reports to the Board, is also appointed by the Governor. The staff is divided into four functional elements: enforcement of regulations and discharge permits, application of technological standards to applications for discharge permits, administration of federal grant programs, and planning and water resources management functions. The Board reports to the Governor through a cabinet system established in 1972. The cabinet member responsible for SWCB is the Secretary of Commerce and Re­ sources, who oversees a large number of agencies dealing with agriculture, natural resources, environment, commodities, and professional and occupational regulation. · No other Virginia agency has direct responsibility in water resources matters. However, three of the other agencies under the Secretary of Commerce and Resources have significant related jurisdiction. The Soil and Water Conserva­ tion Commission oversees and sets minimum standards for the soil erosion pro­ grams of local water conservation districts and soil erosion control agencies. These local bodies formulate and carry out programs and projects for the con­ trol and disposal of flood waters and the control of soil erosion and sediment deposition. · The Marine Resources Commission sets standards for and acts as the firs~ level of appeal from the local wetlands boards set up by the various cities and counties in the tidewater area. These local boards have the author­ ity to control activities which may alter or affect co~stal wetlands. The Coun­ cil on the Environment, whose membership consists of several citizen members and the heads of the various agencies having jurisdiction over environmental matters, has related functions. The Council formulates and recommends to the Governor a general environmental policy, and it coordinates all state communications to federal agencies concerned with environmental matters, including comments on environmental impact statements. In addition to the state-level agencies, Virginia has also entered into several re ional and i state entities, some formal and some ad hoc, in order to develop mechanisms for the consideration of common water resources problems. The most formal of these are the interstate compacts--the Potomac River Basin Compact3 and the Ohio River Valley Water Sanitation Compact.4 The Potomac River Basin Compact has not yet been ratified by the required number of states and thus has not yet gone into effect. In the apparently unlikely event that the Compact does become effective, it would have the power to adopt water qual­ ity standards and a water allocation plan for the Basin. The Ohio River Valley Water Sanitation Compact provides for an interstate body to adopt and enforce water quality standards. This Compact has been ratified by the required num­ ber of states, but is of only marginal interest to Virginia since such a very small area of the state is within the watershed of the Ohio River. Virginia has participated in several ad hoc arrangements as well. In 1972, the 339 Governors of Virginia and Maryland and the then Commissioner of the District of Columbia established the Washington Area Interstate Water Resources Program, a joint task force to investigat~ the long-range water quality and water supply problems of the Washington Metropolitan Area. The 1973 report of the task force placed great emphasis on the fact that the long-range demand for water would substantially exceed the dry season supply capability of the Potomac River, the major water source for the metropolitan area. The report recommend­ ed that the Verona and Sixes Bridge Reservoirs, part of the Potomac River Basin Plan of the Corps of Engineers, be constructed in order to enhance the base flow of the Potomac River; that the major area water supplies be interconnected to maximize capability to meet peak demands; that local building codes be modified to encourage the use of water savings devices; and that facilities be constructed to evaluate the potential to use the Potomac Estuary as an emer­ gency source of water supply. Some progress has been made in the implementa­ tion of these recommendations, and the task force itself was absorbed into the staff of the Washington Area Council of Governments, a voluntary, consultative body made up of representatives of state and local governments. In 1974, the Governors of Virginia and North Carolina entered into an agreement establishing the North Carolina-Virginia Water Resources Management Committee, a forum for coordinating the preparation of river basin plans and the solution of water resources problems common to both states. A series of early meetings of the Committee served the highly useful purpose of exchanging views and information, but the Committee since that time has not been highly active. In 1978, an agreement was entered into by Virginia, Maryland, the District of Columbia, and the Corps of Engineers to establish procedures for allocation of the waters of the Potomac River at Washington during times when total area demand exceeds supply. While this agreement does not settle the long-standing question of jurisdiction over Potomac waters, it does promise to be an effec­ tive ad hoc device for resolving a potentially serious source of conflict. FUNCTIONS The water resources functions of Virginia government can be broken down into regulatory functions on the one hand and planning on the other. The structure of the planning function is somewhat complex because of the overlap of related state and federal statutes. At the state level, water management functions are carried out or overseen primarily by SWCB. Under the state water resources legislation, SWCB is assigned the responsibility to formulate plans for the development of the water resources of the major river basins in the state. These basins are nine in number--the James, Potomac-Shenandoah, Rappahannock, York, Chowan, New, Roanoke, Tennessee-Big Sandy, and the small coastal basins in the Chesapeake Bay area. The Virginia statute specifically provides that SWCB is not authorized to implement these development plans. Rather, they are meant to serve as bases for proposals to the General Assembly for implementa­ tion by further legislative enactment. Up to late 1972, when the planning function of SWCB was substantially impacted by federal legislation, the proc­ ess of formulating these development plans had been started. The first step in this planning process was to collect and analyze the necessary supporting hydrologic data, a step that was substantially completed by late 1972. 340 The Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500)5 con­ tain substantial requirements for state-level water resources and water quality planning as part of the federal regulatory structure for water pollution abate­ ment. Section 209 requires the completion, by 1980, of "level B" plans under the Water Resources Planning Act6 for all ·river basins. Section 208 requires the preparation of waste treatment management plans. The purpose of these plans is to identify the treatment works needed in the mid-term future, to establish construction priorities for these facilities, and to establish a regulatory program to insure that these facilities and the institutions needed to manage them are implemented. Section 303(e) requires that a continuous planning process be instituted for the purpose of . implementing and updating water quality standards for all regulated waters, with the planning functions of sections 208 and 209 incorporated as necessary. P.L. 92-500 tends to insure that this planning process will be carried out, since an acceptable planning function is required for eligibility for delega­ tion of responsibility to the state for the NPDES programs, and since federal grants for municipal pollution abatement facilities will be made only for facilities which meet the requirements of these plans. SWCB has established the continuous planning process required by section 303(e) and is now carry­ ing out the section 208 planning process. The plans for certain designated metropolitan areas are being formulated through the Virginia regional planning district commissions, which are multijurisdictional planning bodies created pursuant to a general state planning statute. The plans for the balance of the state are being formulated by SWCB staff directly. The river basin planning required by the Virginia statute has been consolidated with the section 209 river basin planning process. The direct regulatory .functions of SWCB are rather narrow. Under the Virginia water resources statute, the Board .is empowered to adopt "a coordinated policy for the use and control of all the water resources of the State." The statute does not make clear what th.e status of this policy is, and it has not been adopted pursua?t to the rule-making power of the Board. It would appear that the policy presump.tively defines the public interest, and that any government action which departs from the policy must be supported by a rebuttal of that presumption. A water resources policy statement7 was adopted by SWCB in 1974. This state­ ment covers a broad range of precepts formulated to guide the agency in the development of its water resources plans, to advise other agencies on the suitability of water resqurce projects, and to serve as standards by which SWCB participates in the process of authorization for federal water resources projects in or affecting Virginia. The policy statement covers such matters as beneficial use, the protection of ecological values, standards for water ·supply systems and storage facilities, and flood plain development and flood control. The Groundwater Act of 19738 contains the authority for the exercise of regu­ latory powers over underground waters. This statute provides for the designa­ tion of discrete ground-water management areas when SWCB finds that demands on a particular major aquifer threaten to deplete it. Once such a ground-water management area is designated, SWCB then has the authority to grant or deny any application for a new or expanded use of ground water in that area. A grand- 341 father clause and an exceptions clause in the Act preserve all existing uses and exempt from regulation all new municipal and agricultural uses and any new use in an amount less than 50 thousand gallons per day. To date, two manage­ ment areas have been declared--the area south of the James River extending west from Norfolk and the area comprising the Eastern Shore. SWCB is given authority to speak and act for Virginia in all relations with the federal government or with other states or interstate bodies in matters con­ cerning the conservation and use of water resources. A later enactment designates the Council on the Environment as the entity to coordinate the state comments on environmental impact statements and supplants the water resources statute to that extent. Pursuant to this authority, SWCB has formulated the state position on a variety of federal proposals for water resources projects. Perhaps the most notable was SWCB opposition to the Salem Church Dam proposal on the Rappahannock River. The basis of this opposition was that many of the described benefits were non-existent, and many of the obher described benefits were greatly over­ valued. In effect, the value of the ascertainable benefits fell far short of the level needed to offset project costs. Finally, SWCB, because it is the water quality regulatory agency for the state, serves as the certification agency on applications for federal licenses or per­ mits for activities which would result in any discharge into navigable ·waters. The Board, under section 401 of P.L. 92-500~ may effectively prevent the issuance of such a permit if it certifies to the licensing agency that the project would violate a water quality requirement. CRITIQUE If the go~l of water resources management is the effective allocation of these resources to the most productive uses, however those slippery concepts might be defined, there is little doubt that the agency structure in Virginia seriously fails. Much of the reason for that failure is simply that no agency in Vir_gj.nia has the general authority to manage or allocate these resources. However, even within this inadequate legal framework, certain useful observa­ tions might be made. On the one hand, Virginia has certainly made use of a variety of institutional arrangements within its limited statutory authority to approach water resources problems. Especially useful have been the cooperative agreement with North Carolina and the cooperative Washington Metropolitan Area study. Thus, Vir­ ginia has not simply established the rather bare bones agency structure en­ visioned by the basic state water resources legislation. On the other hand, little use has been made of the potential which exists in the Virginia water resources legislation for the exercise of a substantial degree of administrative initiative by SWCB. The reason for this failure would appear to be a strong institutional bias within the Board and its staff toward water quality functions. That this bias exists is not surprising, since SWCB was exclusively a water quality agency for the first 26 years out of 342 the 32 years of its existence. But, as a result of this orientation, most of the major decisions of the Board are made from the viewpoint of the potential impact on water quality, even in the case of decisions which have major water resources impact. And even as to decisions that are totally water resources related, the Board tends to act ad hoc rather than with a strong conception of generally applicable principles. What is needed instead is for SWCB to develop a comprehensive decision-making framework based on a broad concept of the best use to be made of the state's water resources. There is little doubt that, even within the limited statutory water resource authority, there is a substantial amount of room for aggressive administration. With the power to develop a strong water resources policy and the opportunity to give practical effect to this policy by stepping into what amounts to an administrative vacuum, SWCB would be able to exercise a sub­ stantial role without any increase in its statutory powers. Two final observations might be made about specific weaknesses in the statutes governing SWCB. First, the Groundwater Act of 1973 contains such broad exemp­ tions that, under a fairly straightforward reading of the Act, it is not pos­ sible to prevent the drawdown of any particular threatened aquifer. Second, a recent legislative enactment has taken from the Board its power to appoint the Executive Secretary; this power has instead been given to the Governor. As a result, the Board has lost its one direct means of control over its staff and has made the staff ultimately answerable not to the Board but to the Governor. Institutionally, the power of the Board is severely threatened. FOOTNOTES 1. Va. Code Ann., sec. 62.1-44.83 et seq. 2. Id., sec. 62.1-104.1. 3. Id., secs. 62.1-69.1 4. Id., secs. 62.1-70. 5. 33 U.S.C. 1251 et seq. 6. 42 U.S.C. 1962a et seq. 7. Virginia State Water Control Board, "Commonwealth of Virginia Water Resources Policy" (1974). 8. Va. Code Ann., supra, note 1. 343 WATER RESOURCE PROBLEMS (Virginia) 1. Surf ace Water Law Water Withdrawal uses and allocation 5 Instream uses 5 Saline water intrusion - Land use relationships 5 Property damage 4 Ownership of submerged lands I 5 Coniunctive use surface & ground water · 2 Protection ground water recharge areas - Emergency use 2 Interbasin transfer 5 Interstate effects 3 Shoreline protection 5 Wetland protection 5 Public access 1 Reservation of reservoir sites 3 Water Administration Allocation standards & criteria 5 Data bases 3 Permit procedures 1 Regulation & enforcement 1 Agency structure & functions 1 Please mark as to priority using following code: S highest ~ l 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water 1 4 - - - 5 5 5 4 4 3 - 2 2 - 5 2 'L - - 3 j 5 - 5 - 1 - - - , 5 5 3 3 1 1 1 1 1 1 Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws add ress the problems. 344 WATER SUPPLY PLANNING-- VIRGINIA'S LAWS AND PROGRESS R.V. Davis Executive Secretary State .Water Control Board Richmond, Virginia HISTORY OF VIRGINIA'S WATER LAW Virginia, as well as mos·t other water-rich states, pa·rticularly in the East, utilizes the riparian doctrine for determining · water rights. This doctrine originated in England as part of the common law and was intended to achieve some level of protection in the distribution of waters of a stream for the riparian landowners who presumably had settled along the stream because of the availability of water. The reasonable use concept, which allows any use that does not unreasonably interfere with the rights of others, was added in the course of applying the doctrine to water use conflicts in the United States. In contrast to the riparian doctrine, many of the arid western states follow a system of prior appropriation based on the concept that priority in time creates a better right. Today, most prior appropriati~n states have elaborate statutory allocation schemes and numerous judicial determinations establishing priorities of allocation. The opinion is often expressed that the prior appro­ priation system is more flexible than the riparian doctrine and can accommodate itself to the changing needs of the economic environment. Many states, including Virginia, are undergoing a continual change away from the riparian doctrine toward the prior appropriation system or some other allo­ cation mechanism. These changes have been slow, perhaps suggesting how well the riparian doctrine is suited to a water-rich state. One of the most impor­ tant changes from the early riparian doctrine is the relaxation of the require­ ment that water be returned to a stream in the same quantity and quality as that withdrawn. This concept has been replaced with a reasonable use criteria allowing water to be diverted for municipal and certain other uses when the use is for the public good and does not greatly inconvenience downstream riparians. Another modification is the recognition of prescriptive rights as a means to establish water rights contrary to the riparian doctrine. While common and statutory laws act jointly to define water rights, the increased demands placed on the water resources of Virginia have, in recent years, resulted in the passage of a considerable amount of water-related legis­ lation. Many of these statutes have been designed to regulate certain indi­ vidual aspects of water use, and special agencies have been authorized therein 345 to exercise control over water use for limited purposes. Recognizing the need for state-level planning and guidance of the overall use and development of the state's water resources, the Virginia General Assembly, in 1966, enacted legislation authorizing the Division of Water Resources of the Department of Conservation and Economic Development to plan the development, conservation, and utilization of the state's water resources.l On July 1, 1972, the General Assembly merged the Division of Water Resources with the State Water Control Board,2 the agency which, in 1946, had· been created to protect and enhance the water quality of the Commonwealth.3 The State Water Control Board's responsi­ bility in the water resource field was further broadened by the passage of the Groundwater Act of 19734 which gave the agency responsibility to conserve, pro­ tect, and insure beneficial utilization of the ground-water resources of the state. WATER RESOURCES MANAGEMENT IN VIRGINIA Water resources management is a complicated blend of organizational, legal, political, and technical considerations. When planning for an adequate water supply, consideration must be given to such factors as flood damage minimiza­ tion, power production, navigation, recreation, and agriculture; however, the most basic planning element is probably that of determining quantities of water which will be required to meet future needs. The precise quantities of water which will be needed are .indeed difficult to predict and can be influenced by migratory trends in the national population and site selection decisions of major water-using industries. Virginia is indeed fortunate in that it has great wealth in its water resources, including nine major river basins (the interstate nature of which has sometimes complicated water supply planning); 120 miles of coastline along the Atlantic; 1.9 million acres of salt water in the Chesapeake Bay; and two natural lakes, six major ·impoundments, and numerous streams and small ponds which account for some 429 thousand acres of inland fresh water. Statewide precipiation averages about 43 inches per year and provides about 25 billion gallons per day na~ural runoff. Withdrawals of surface water in Vir­ ginia now total approximately one-fourth of this amount · but will likely in­ crease to as much as one-third in the foreseeable future. Virginia is also blessed with a relatively good supply of ground water, but the availability of this resource varies in each of the physiographic provinces of the state. Gen­ erally, the amount of ground water is small in the Appalachian and Blue Ridge Provinces; limited to moderate in the Piedmont; moderate to large in the Valley and Ridge Provinces; and larg~ in the Coastal Plain Province. The Groundwater Act of 1973 provides for regulation of pumpage and use in ground-water management areas--those geographic areas in which the board has deemed the levels, supply, and quality of ground water to be adverse to public welfare, health, and safety. To date, only two areas of the state have been declared ground-water management areas--the southeastern region and the Eastern Shore. These designations were made as a result of hydrogeologic investiga­ tions which demonstrated that withdrawals of ground water in some portions of the coastal plain exceeded recharge. Much of the concern over the ground-water 346 supply in the area stems from the fact that overpumping of the .1quifer could ultimately result in saltwater intrusion, thus rendering ground water useless as a source of potable water. In September, 1976, the State Water Control Board began a research station drilling program in the Southeast Virginia Ground-Water Management Area. Twelve wells were constructed by November, 1977. Two categories of research stations were constructed: 1. Those monitoring the freshwater/saltwater interface to determine its position and migration and 2. Those to evaluate ground-water resources. By the end of fiscal year 1978, two more interface stations and four more resource monitoring stations will be drilled. In November, 1976, an agreement between the State Water Control Board and the Coastal Plains Regional Commission was initiated and a grant of $66,166 for the first year of the agreement period was provided by the Commission. During the first year, the grant was utilized by the Board to accelerate the development of a ground-water management plan for the Eastern Shore Ground-Water Management Area. Data was assimilated to refine further the knowledge of the geohydrology of the area. Six ground-wa~er research stations, comprising 18 wells, were constructed to obtain data and monitor water levels and saltwater movement. A computerized ground-water model of the area was developed and verified. During the second year of the agreement period, eight more research stations will be constructed on Eastern Shore, the ground-water model for Eastern Shore will be refined, and a model for the York-James-Middle Peninsula will be developed. Water has long been treated as an unlimited resource and free commodity. Thus, the historic trend has been one of increased per capita use, a trend expected to continue in the future. Current estimates indicate that per capita use will increas e from about 180 gallons per day (gpd) in 1970 to 220 gpd in the year 2000 in our metropolitan areas. Peak demands in municipalities are often double the average daily rate, and usually occur between 8 and 10 a.m. on week­ days when home and commercial use are the heaviest. Meeting this demand means having a source and treatment facilities which must supply (at peak demand) double the average demand. The lack of metering, leaky systems, lack of inter­ connections, discounts to large users, and lack of conservation are all prac­ tices which lead to larger per capita demands. Even with her abundance of water, Virginia is still experiencing problems. These problems generally come from not having the right quantity of water where and when needed and from improper quality due to natural or man-made causes. Related problems also arise from customs and laws that regulate the use of water . Several areas of the state are currently experiencing severe or potentially severe water supply problems: --Southeast Virginia is expected to need increased water supplies within the next five to ten years. Estimates now predict that treated water needs in the area will increase from 80 million 347 gallons per day (mgd) in 19i5 to 107 mgd in 1980; to 135 mgd in 1990; and to 162 mgd in the year 2000. --The Washington metropolitan area has expanded explosively in recent years and could be faced with a water supply crisis of serious pro­ portions in the event of a severe and prolonged drought. Present available water in northern Virginia is about 150 mgd. These com­ munities used 103 mgd in 1975; but needs are projected to increase to 115 mgd in 1980, to 165 in 1990, and to 210 mgd in the year 2000--suggesting a considerable supply deficit. In fact, the historical peak rate of withdrawal from the Potomac River in Wash­ ington has exceeded the historical minimum river flow of 342 mgd at Points of Rock, Maryland, during a recent drought. --The Roanoke area may also be faced with a serious problem in the future. Population projections for the Fifth Planning District Commission indicate an increase in population from 235 thousand (with a water demand of 35 mgd) in 1975 to 320 thousand in 2000. This increase will create a public water supply demand of approx­ imately 60 mgd, and the quantity of water easily available is limited by the area's location in the upper part of the water­ shed. The average flow of the unregulated Roanoke River at Roa­ noke is 238 mgd but was less than 18 mgd in the 1933 drought. In addition to public water supply, a variety of other demands for water must be considered. Water withdrawals · for use in industries and power production totaled about - 6,500 mgd in 1975--by far much greater than all other withdrawals in Virginia combined. This demand could increase to over 22,000 mgd in the year 2000, although much of the water is used for cooling purposes and can be returned to a water source for reuse. Recreational use of water is expected to increase at least in proportion to the population growth and probably at a greater rate because of increasing per capita income and increasing amounts of leisure time. Agricultural uses of water are also expected to increase--from about 330 mgd in 1975 to about 800 mgd in 2000. Water for irrigation is gen­ erally needed during the dry, hot season of the year; however, this is unfor­ tunately the time when water supply is usually low. POLICY ISSUES There are numerous problems and policy issues affecting water resource manage­ ment in Virginia which need to be resolved if high quality water in adequate quantities for municipal, industrial, agricultural, and recreational needs is to be available in the future; however, the way to go about it is not yet clear. The construction of reservoirs has proved to be a viable option for solving water supply problems in some areas but may not be economically feasible in other smaller communities. It is a rather alarming fact that the state's best reservoir sites have already been utilized, with few suitable sites remaining. These valuable sites must be regarded as a resource which cannot be replaced; however, the state has no mechanism for acquisition of these sites for preser- 348 vation for future use. Nor does there e:cist a medium whereby owners of exist ­ ing reservoirs can exercise effective control over watershed use and develop­ ment. Another issue of growing ~oncern is that of interbasin transfer. The state has no policy with respect to interbasin transfer of water although numerous exam­ ples of such transfers exist. Interbasin· transfer frequently has been employed by municipal water systems that withdraw water from riparian land but distrib­ ute treated water to largely nonriparian users. The practice has often gone unheeded until prescriptive rights to the water have matured. In the few instances where the us~ has been challenged in the courts, it seems that it has been ruled that the nonriparian use is a reasonable, beneficial use and as such, is allowed to continue. Greater resistance to interbasin transfer is being shown today and may have stemmed from an April, 1972, ruling of the Virginia Attorney Generals with regard to the proposed Salem Church project which stated: I am of the opinion that, inasmuch as an interbasin trans­ fer of water constitutes, by definition, a diversion of water beyond riparian property, any such interbasin trans­ fer by a riparian owner would be unlawful at common law However, this principle was subjected to the following qualification: Although the lower riparian owner is not entitled to relief from such diversion in the absence of injury . Thus interbasin transfers have generally been successful because of lack of downstream harm sufficient to cause legal action. The opinion went on to recommend: In this regard, consideration might be given to legislative enactment of authority for such transfer as an appropriate course of action . . . . This statement seems to suggest special General Assembly authority to approve a specific interbasin transfer. Interbasin transfers may be dealt with in several manners: by making the transfer and waiting for legal action if harm is done, by special legislation for specific cases, or by switching from rule by the riparian doctrine to some sort of permitting scheme. It appears that courts tend to modify the riparian doctrine by allowing increasingly liberal interpretations of reason­ able use. It may be that this slow, gradual change of the riparian doctrine is an acceptable one that will allow most or all interbasin transfers on an equitable basis. However, a state permitting system, which could cover either the entire state, a river basin, or a localized area, is considered by many to be a superior approach. Allocation of water use resulting from a permit system would 349 probably be more equitable than use under the riparian system. Allocation of Potomac River water pursuant to a low flow agreement discussed later would also be facilitated by such a system. Efficient use of water is another area that has caused great concern; in fact, some contend that conservation is the answer to most water supply problems. Economic studies have indicated that the inability to transfer water rights to the highest bidder is doing great harm to Virginia. The need for state financing of water resource projects often becomes apparent when seemingly worthy projects run into trouble. Financial assistance could be provided in the form of grants or loans, perhaps from a revolving fund to be established and maintained by a tax on water use or withdrawal. In addition, water conservation may well be promoted by such a tax. PROGRESS IN WATER RESOURCES PLANNING Legislation enacted in 1966 requires the State Water Control Board to formulate plans and programs for the development of water resources in the state in such a manner that the maximum beneficial use and control of such waters are secured.6 The Board is not authorized to take action to implement . such plans or programs but is required to recommend legislation for the implementation of the plans and programs to the General Assembly. Development of the plan was begun using the concept of preparing a six-volume report consisting of: introduction; economic base study; hydrologic analysis; water resource problems and requirements; engineering development alternatives; and implementation of development alternatives. By 1972, the first four volumes had been completed for all river basins and all six volumes had been completed on the New River. However, with the passage of the Federal Water Pollution Control Act Amendments of 1972, 7 emphasis was shifted from water quantity to water quality planning in order to meet the requirements of the act and to assure the flow of federal grant monies to Virginia communities. In the inter­ vening five years, much progress has been made in the water quality planning effort, and the Water Control Board staff has continued to interface federal and local water resource plans with the state program. The completion of these plans (which are estimated to take six years at a cost of $6 million) would go far toward solving water and related land resource problems of the state. The Water Control Board tried for four years to develop a legislative initia­ tive in the area of water resource law but met with little success. In 1975, the Board contracted with Professor Thomas F. Bergin of the University of Virginia for an analysis of the state's water laws. The "Bergin Report"8 was completed in December, 1975, and concluded that the existing common and statutory laws involved substantial uncertainty and did not provide a sound base for water resource management. In 1977, as a result of growing interest and concern on the part of state agencies, the legislature, many localities, and the public in general, the 350 General Assembly passed House Joint Resolution 236 which assign~ to the State Water Control Board responsibility t~ recommend ways to resolve the water sup­ ply and allocation problems of northern and southeastern Virginia. A nine-mem­ ber State Water Study Commission was established to provide legislative guid­ ance and to assist the Board in holding public hearings throughout the state. The Commission held its organizational meeting on June 9 and elected to divide its work among three subcommittees: the Southeastern, the Northern, and the Legal Subcommittees. At one of its early meetings, the Southeastern Subcom­ mittee heard a presentation from the Corps of Engineers who, in response to a Senate Public Works Committee resolution adopted on June 11, 1974, is conduct­ ing a water supply study for the southeastern Virginia area. The Corps has held numerous public hearings during which their 35 original alternatives have been reduced to 12 options ranging in cost from $126 million to $280 million. At its meeting on July 27, 1977, the Commission decided that it would be in the best interest of the Commonwealth not to proceed with a separate study of southeastern Virginia, but to await the completion of the Corps' report in 1978. This decision was based on the fact that any plan recommended by the Commission, prior to completion of the Corps' report, would very likely not be eligible for federal funding due to the lack of its having been formulated within the framework of federal agency constraints. By the end of September, 1977, the Corps had further reduced the list of alter­ natives to four: Roanoke River below Roanoke Rapids; Chowan near Winton, North Carolina; Blackwater River; and Lake Genito; and at the request of the State Water Control Board's member on the Commission, a fifth alternative--Peahill Creek on Lake Gaston--was reinstated to the list for further study. On March 22, 1978, the Corps of Engineers advised that because of legal and institutional considerations, the alternative involving withdrawal from Roanoke River downstream from Roanoke Rapids Dam was being abandoned and that another option--that of utilizing flows of the Nottoway and Blackwater Rivers with off­ channel storage--would be studied.9 The Northern Subcommittee, after having conducted a series of three public meetings and two public hearings, concluded that, fbr various reasons and for at least the next several decades, the Verona, Catoctin Creek, Goose Creek, and other major upstream impoundments were not viable alternatives for solution of that area's water supply problems. The Subcommittee went on to offer several interim recommendations including: better management of existing reservoirs in northern Virginia, and possibly such new reservoirs as Cedar Run; reduction in per rapita water demand; the proposed Fairfax County Water Authority intake on the Potomac; _confirmation of Virginia's riparian rights to use of Potomac water; management of regional water supplies during water shortage emergencies; rais­ ing the Occoquan Reservoir by a height of five feet; ground-water exploration programs; finished water interconnections between adjacent utilities; and the identification, inventory, and utilization of existing reservoirs, quarries, and other storage facilities. The Legal Subcommittee recognized from the very beginning that legal problems would be at the heart of any attempt at resolution of Virginia's water supply 351 and allocation problems, and was assisted in its work by the Environmental Law Committee of the Young Lawyers' Section of the Virginia Bar Association. The Young Lawyers' Section did extensive research on court cases, particularly those involving interbasin transfers, and concluded that a comprehensive study of Virginia's water law was needed. In the State Water Study Commission's 1977 reportlO to the General Assembly, the Commission recommended that its charge be continued for at least one year, with funding, and with increased representation to reflect a broader con­ stituency. Senate Joint Resolution 1, which incorporates this recommendation, was agreed to by both houses at the 1978 session of the General Assembly and calls for a 12-member commission to be composed of five representatives from the House, three representatives from the Senate, and four members from the state at large. Another Commission recommendation establishing a mechanism for interjurisdictional assistance during water shortage emergencies was also enacted by the 1978 General Assembly. Numerous other water resource measures were also considered at the 1978 ses­ sion; including a State Water Study Commission-sponsored bill establishing a Potomac River Basin permit system, a bill providing for interbasin transfer of water with General Assembly approval; a surface water permit system for south­ eastern Virginia, a resolution calling for a study of the feasibility of grant funding for water impoundment construction, and amendments to the Groundwater Act of 1973 intended to strengthen the Act by including some uses previously exempted. These measures were all carried over for consideration at the 1979 session with the thought that the State Water Study Commission would include the study ·of these actions as part of its work under Senate Joint Resolution 1. The Commission will also address the issue of the quantities of ground water which may be available, particularly in southeastern Virginia. The staff of the State Water Control Board will be working closely with the State Water Study Commission during the coming year in the hope that specific recommendations to resolve water supply and allocation problems can be formu­ lated and amendments to water law enacted by the 1979 General Assembly. The Water Control Board is also involved with interstate concerns and is cur­ rently working toward the development of a new bi-state water resources agreement with North Carolina. The original agreement which recognized the mutual concerns of North Carolina and Virginia was enacted in August, 1974, 11 and it is anticipated that the two governors will sign a new compact in late April, 1978. Also, after more than two years of negotiations, the Water Control Board (and particularly the Board's vice chairman, J. Leo Bourassa) was successful in get- · ting the Potomac low flow allocation agreementl2 signed by Maryland, the Corps of Engineers, and the Commonwealth. This agreement will clear the way toward the Corps' issuance of a permit for the construction of the Fairfax County Water Authority's intake on the Potomac River. In addition, the staff has been working with city officials and members of Con­ gress with a view toward obtaining federal funding for a demonstration desalin­ ization project to be located in Virginia Beach. If successful, the project could well demagnify the water supply problem in southeastern Virginia. 352 ( FOOTNOTES 1. Va. Acts of Assembly, ch. 561 (1966). 2. Id., ch. 728 (1972). 3. Id., ch. 399 (1946). 4. Id., ch. 443 (1973). 5. Letter from Andrew P. Miller, Attorney General of Virginia, to Thomas J. Rothrock, Member, Virginia House of Delegates, April 25, 1972. 6. Va. Code Ann. sec. 62.1-44.35 et seq. (1973). 7. 33 U.S.C. 1251 et seq. 8. Thomas F. Bergin, Virginia Water Law: An Economic Appraisal (1976). 9. Norfolk District, U.S. Army Corps of Engineers, public announcement, March 22, 1978. 10. "Report of the State Water Study Commission to the Governor and the Gen­ eral Assembly of Virginia," House Document No. 18 (1978). Copies are available from the State Water Control Board. 11. Agreement . Between the Governors of North Carolina and Virginia Concerning the Conservation, Development and Management of Water Resources for Mutual Benefit, August 15, 1974. 12. Potomac River Low Flow Allocation Agreement, January 11, 1978. 353 WATER RESOURCE PROBLEMS (Virginia) 1. Surf ace Water Law Water Withdrawal uses and allocation 5 Instream uses 3 -Saline water intrusiort 1 Land use relationships 4 Property damage 5 Ownership of submerged lands 2 Conjunctive use surface & ground water 3 Protection ground water recharge areas 4 Emergency use 3 - Interbasin transfer 5 Interstate effects 4 Shoreline protection 3 Wetland protection 1 Public access 3 Reservation of reservoir sites 5 Water Administration Allocation standards & criteria 5 Data bases 3 Permit _p_rocedures 2 Regulation & enforcement 5 Agency structure & functions 2 Please mark as to priority using following code: 5 highest ~ l 1 lowest, but significant 2. 3. Diffused Surface Ground Water & Drainage Water 1 5 - - . - 4 4 1 - 1 - - 1 3 4 4 3 J - 5 - 4 2 3 1 - 1 - - - 1 5 1 4 - 5 1 5 1 2 Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address the problems. 354 Banquet Addresses 355 WATER ALLOCATION AND MANAGEMENT IN MISSISSIPPI (Luncheon Address) Sam Thompson Office of Senator James O. Eastland United States Senate Washington, D.C. It's good to be back with people who are in the water business. I got in a long time ago--! believe it was in 1958. After I spoke to the National Water-· shed Congress in Atlanta in 1957, Jack Daniels, who was in the Virginia Legis­ lature and was chairman of the committee that was responsible for soil and water conservation, and several others wanted to come down and see what we'd given birth to in 1956 with the passage of the Mississippi Water Rights Act. At present - I just have an apartment in Washington that I rent. I am a bona fide, legal citizen of the State of Mississippi and a farmer. I'm delighted that I've been able to listen to the presentations by the speakers · from Alabama and Florida this morning. I have accumulated some experience in the water resources area, and I would like to say to Alabama that crisis is not a good method by which you find solutions to problems. All you do is put some iodine on the cut and a bandaid over it, but you don't solve the problem. In fact, it doesn't even go away while it has the bandaid on it. When you let the courts write your laws, with j'udges that don't know anything about water, laws are created that have to be repealed or overridden. This gets to be a much tougher job when you get to the legislature than if you can go in clean and do the job right. If you have problems, you need to address them. If it takes surgery, do it instead of using the bandaid approach. Get rid of the cancer and get on with the healing process. We could almost say that to Florida--it looks as if they've been putting bills on top of bills on top of bills. You know, every time you pass a law to correct the mistakes you made in the first one, you pass two more. You get a geometric progression. Then after a while you have a whole book of laws. We have been dealing with the problems by a surface approach, without digging into them. Back in the early 1950's, I was Vice President of the National Association of Soil Conservation Districts. I was irrigating crops with my first sprinkler irrigation system. I didn't know you could cut land to grade and run the water down a flume and use siphons or gated pipe. I irrigated and irrigated and irrigated, and that's a good thing if you don't get too much rain following 356 irrigation. Even that's not too bad if you've got drainage, but don't get caught irrigating with rain and no drainage--that teaches you a lesson you don't forget! I learned by experience that time, and then I spent a lot of money cutting the land to grade and putting down wells for irrigation purposes. We do learn from experience. Once, while in South Carolina speaking to the regional office of the Soil Con­ servation Service and to the state's Soil Conservation District commissioners, they told me a story about a poor fellow who had bought $20,000 worth of equip­ ment to irrigate his peaches during the drought that started in 1952. But he wasn't successful because a couple of folks downstream went to court and got an injunction against him. It wasn't considered reasonable use for him to take that much water out to irrigate his peach orchards. I said, "I'm darn glad we don't have that kind of law in Mississippi," and they said, "You go back home and look. You're working under the same handicap." I went back and looked, and we were. I decided this wasn't a good idea and that we ought to do something about it. South Carolina already had a draft bill at this time, and they went to work with their Soil Conservation District commissioners and tried to get this bill passed by the legislature. Immediately, the power companies, the municipal­ ities, the manufacturers, the Wildlife Federation, and the rest of the people jumped on this thing and said, "Those darn farmers are trying to hog up all the water. They're going to dry up all the rivers." South Carolina still doesn't have a water rights law because they tried to do it with one finger, and this is a both hands job. Well, we didn't go at it quite that way in Mississippi. At the time, I was on the staff of the Mississippi Farm Bureau trying to bail it out of problems. We were putting in a fertilizer plant and organizing insurance companies. Since I was a staff man, I could make use of some of the facilities of the Bureau. I invited the Mississippi Wildlife Federation, the Mississippi Manu­ facturers Association, the county governing bodies, the Mississippi Municipal Association, the Farm Bureau, the state Soil Conservation Committe~, the state Association of Soil Conservation District commissioners--14 organizations in all--to meet and discuss the situation. At the meeting we decided to see if we had any problems and we went through the agricultural agencies, the city fathers, and everybody else, county by county. We started looking for prob­ lems: a community that had a water problem; a farmer who had a water problem, whether it was drainage or water supply, whatever it might happen to be. We listed these problems statewide in 82 counties--who had them, what kind they were. We found out that industry, recreation, and other people had as many problems as farmers did. And we agreed that something should be done about it. In time we got the U.S. Geological Survey, the state geological survey, and some other state and federal agencies together, and we asked them what needed to be done in order to deal with these problems. They started telling us about things we needed to do on the ground. All this was running in the face of the riparian doctrine which, basically, is non-use. Now, you can modify the doc­ trine somewhat by the "reasonable use" concept, but the "natural flow" concept is basically non-use. 357 Our problem in Mississippi is that we get from 65 inches of rainiall along the coast to 46 inches on the Tennessee line--plenty of water. The man who was sitting on our bill in the state senate said that anybody getting six feet of water a year doesn't need a water bill. We do get plenty of water, but we get most of it in one part of the year and little in the rest. We don't have water problems--we just have the time of delivery off schedule to what our needs are. To me, water management is two things. One thing, and I haven't heard what I would like to have heard this morning in these sessions, is that water manage­ ment is not just managing the water, but it is developing it while you manage it. And for this you need storage--storage you don't get under the riparian doctrine, not by the private individual or by the corporation or the company. You have to go the public route in order to get storage. Water management is reducing or preventing floods and having the water available when you need it. You can do this with the prior appropriation doctrine or by modifying the natural flow doctrine. Priorities in time are what we have under the appro­ priative doctrine. You can also put priorities of use in the legislation, and you can co-mingle the two and make them operate like links in a chain. But what we did with these 14 organizations was to develop a set of recommenda­ tions to cope with the problems. The one group that we didn't have involved this time was the lawyers. We didn't get the Mississippi Bar Association involved in this--we didn't want to get talked to death. But we came up with-­ I believe it was 16--reconnnendations. We then had a speaker for the annual meeting of every one of these organizations to address the problems and the reconnnendations. We set up 13 meetings out in the state where we have access to the people, and each of these organizations wrote its people and gave them a list of t _he schedule of meetings. They said, "Come. Bring your leadership, and be sure you bring your representative and senator." And they came. In the particular area of the state where a meeting was held, we talked about the problems in that area. We mentioned them in that county, and the adjacent counties, and told them what the problems were, and what we r~commended as a means of solution. And the people were saying, "Amen! Those boys in the Legislature were turning around to see who was saying "Amen!" Then we had a statewide meeting where we invited everyone, including the governor. We had a group to come in, too, to this one; those folks who heard about it that had not gone to the local meetings, came to Jackson. When we went to the Legislature, we didn't have any problem. The law passed. Our new governor the year the law was passed was a former attorney general who wanted to change the entire board of trustees and the institutions of higher learning, but the Legislature didn't want him to do it. The bill had pro­ vided for five connnissioners, one to represent recreational water, one munic­ ipal water, one agricultural water, and one industrial water, with the other one to keep peace--but you want to have representation of each of them. Three were to be selected from three judicial districts running the length of the state and two from the state at large. The governor was to appoint them for staggered terms, one to five years. Well, the Legislature was mad at the governor, and he won the argument and got to reappoint everybody or appoint everybody _ new on the board of trustees of the institutions of higher learning. The Legislature established us a seven-member commission--one from each of the six congressional districts and one from the state at large, and gave us four- 358 year terns. That's bad--don' t ever get stuck like that. So we ~.ot in a real mess at the end of the first four years. The second year I went back to the man that made the mistake and got him to correct it; so now we serve for seven years. We started off in the congressional district one up through the state­ wide situation following this. All the time there are six people on the Board who know what they're doing. Those that are learning have plenty of time to learn before they have to take over most of the responsibilities. I But to get a program established, you first have to have a problem. From what I heard from Alabama and Florida this morning, they have problems. You Alabama people say you can't pass a bill. You can make them demand it. If you'd take your proposals to the people and get them to understand, they would support it. I'll tell you something else--if you don't do something about it, the legisla­ ture is going to make a bigger mess than it has. If you don't resolve it in the states, a vacuum is going to be created and the federal government is going to be sucked in to fill the vacuum. The federal authorities don't invade the states. If we neglect our duty at the state level, they have to come in because the people demand it. Let's quit cussing them and start working with them and try to pass laws so we can let them stay in Washington, and we can run our business down in the states. This can be done, but it's awfully late; a lot of people are going to have to run instead of jog in order to catch up with the solution to some of these problems. I am amazed at the number of times you are going to court in Florida. These model bills have been in court a lot. Twelve years ago, I spoke to the south­ ern region's Attorneys General Conference in Baltimore. Will Wilson from Texas was the chairman that year, and I was supposed to talk to them about water law. We'd been in business 10 years, and the program was progressing smoothly. Speaking of the Texas situation, they started off with the old Spanish land grants that included water rights. Then the French came in, and they estab­ lished some water rights. Then Indian treaties were es.tablished. And when Texas came into the United States voluntarily, they had the riparian doctrine with the English common law, and some water rights have been based on it. Finally, Texas passed the appropriative doctrine. If you want to go crazy, try to run five different kinds of law in the same state at the same time with conditions ranging from totally dry to a very humid situation on the east coast. They have problems. Well, after I finished talking to the Attorneys General at lunch that day, Will Wilson said, "Sam, how many lawyers has the Attorney General assigned to your board?" "Well, we have access to one that we call when we need him to interpret something for us." He said, "One part ­ time? Well, I have over 500 lawyers on my staff in Texas, and three-fourths of them are assigned to water cases." I can understand that in Texas. But I don't see how you let this situation develop in Florida. In Mississippi, we haven't been to court yet, except as a friend of the court when they wanted to find out if the law was any good so bonds could be issued for construction of a million acre-foot project for the City of Jackson and the adjacent counties. By the way, we're going to pay for that project this year or next year. A million acre-feet of water. We can do it locally. We even paid the federal government $600,000 to move the Natchez Trace Parkway, but that's our water. The Ross Barnett Reservoir belongs to us. It's amazing what we can do, even the poorest state in the nation with the lowest per capita 359 income. We haven't been to court yet except to prove that the law is good. We have had some other people sue each other under the law. We didu't get in­ volved, except as an expert witness to explain the law to the judge. But there hasn't been a weak place in it yet. The law has been amended on two occasio~s. One involved staggering of the terms of the commissioners. The first governor at the end of that four years replaced six of the commissioners. You should have seen me fight six of them. They were going by the governor's office g~tting their instructions on the way to board meetings, coming over to play politics--to adorn rather than to per­ form. I had to refuse to sign the checks to pay political appointees in order .to get rid of them. It isn't good when the whole board is changed at one time. Stagger the terms if you're going to go the board route. This is one amendment we've had. The other involved return of water after use. The law protects the average minimum flow--we don't use water below this point. This provision took care of the recreational folks and passed the bill for us. Water can't be used below that level except by a community that circulates the water, treats it, and puts it back in the stream so the amount of water is not reduced very much. Water can also be used for industrial uses provided that it is put back in the stream in the same amount and quality at the place where it is withdrawn. We issued a permit for 100,000 acre-feet of water for use at Pascagoula, Missis­ sippi, but they had to come up 14 miles to get out of the tide flow and stay away from the saline water. They put in a pipe line to carry it down there to use. It suddenly occurred to us that if the Pascagoula River got down to the established average minimum flow (which is the lowest flow of the five years in the preceding twenty), they would need another pipeline to put the water back in the stream at the poin_t where it had come out. So we amended -the law to give the Board some judgment since there are 800 million gallons a day flowing by this place, and we figured we could forgive them a little water. We've had two amendments in 22 years, and we haven't lost a lawsuit. Right now we have just 11 employees. As far as I know, there isn't an unsolvable water problem in the state. Some connnunities have water problems, and the ground­ water table is falling in some areas. Fortunately, the state has a few more ups and downs in its topography than Florida, with the highest point up at the Tennessee River being 504 feet. But we can put in some small structures and impound some water--regulate floods and have some water available in the dry periods. We have an act that's served well. I'm going to repeat what I've been telling some of you since 1958 when we started the Southern Water Resource Conference--time is running out. If we at the state level don't do something to develop the needed water resources to deliver to the people, the people are going to demand that the federal govern­ ment do it--and they will. They are waiting on you. 360 MARYLAND'S WATER ALLOCATION PROGRAM (Banquet Address) Ernest C. Rebuck Water Resources Administration Annapolis, Maryland This presentation covers Maryland's water allocation program as administered by the Water Resources Administration (WRA) of the Department of Natural Resources. The program includes surface water and ground water, with no mi~i­ mum cutoff as to quantity of use. The lowest permitted use at present is 150 gallons per day. Theoretically, a use for one gallon per day could be permit­ ted although it likely would not for practical reasons. Some permits cover uses of over iOO million gallons a day. "Appropriation" permits are issued in Maryland, but that is simply a method of implementing the basic riparian doc­ trine--there. is no prior appropriation implied whatsoever. It is often noted that it takes a crisis before a state legislature enacts a new law with as many ramifications and impacts as a water appropriation law. This was the case in Maryland. Back in the 1930's, particularly in 1931, the drought of record for much of Maryland occurred. For a period of about three years thereafter, very low flows persisted. After the first summer of low stream flows, the General Assembly established a Water Resources Commission and asked it to study the problem, conduct an inventory of the water resources of the state, and report back in two years. Two years later flows were still low, and the General Assembly passed the legislation proposed by the Commission. There have been few amendments to the statute which was passed by the General Assembly in 1933. The overall objective of WRA's program is comprehensive water supply management. The Maryland Geological Survey, in cooperation with the U.S. Geological Survey, does basic studies on the availability of water from the various watersheds and aquifers throughout the state. WRA keeps tabs on water use. In fact, the 1931-33 study report referenced the permits as a bookkeeping method of keeping track of water use. There are other functions of course, but that is a very important one. There are some states that use a different approach to collect water use information. For example, Texas relies on surveys and question­ naires. But WRA considers the regulatory program and the police powers asso­ ciated with permits important to obtain accurate and responsive water use data. For example, many of our permits require that flow meters be installed. The approach based on a survey or a questionnaire does not provide a mechanism for accurate water use measurement. 361 Another program element is provided hy the Department of State Planning which has the responsibility for preparing population estimates. State population projections for the next 10 and 20 years form the basis for estimating future water requirements. WRA fits these estimates to basins, and by comparing pro- _ jected use with available supplies, information is obtained on surpluses, which,-· could foster new and additional development, as well as deficits. Due to staff' limitations, however, determinations of surpluses have progressed slowly and any statewide analyses are probably two or three years away. On the deficit side, WRA has worked with various communities that are expected to have a water supply shortage within a decade or two. For these water service areas, use is made of the Maryland Geological Survey reports and Soil Conservation Service indices of reservoir sites. Various alternatives that could be developed, including ground-water and impoundment sites, are reviewed, and WRA coordinates with federal agencies to develop a project which would take care of the pro­ jected deficit. The Maryland permit requirement applies to all water users except domestic and farming use. Exemption of farming is a problem because irrigation is the fast ­ est growing water use and because everyone instantly becomes a farmer. For example, hospitals and golf courses have attempted to come under the farming exemption because they grow grass. This creates a problem of identifying those projects that need appropriation permits. Last year, however, WRA processed 1,000 new appropriation p·ermits and revised or modified 500 more. A total of 20,000 ground-water appropriation permits and about 250 surface water appropriation permits are now on file. About half of the permits processed last year were subdivisions. Subdivisions are considered a connnercial activ­ ity up until the time of sale of individual lots, after which the water use is considered domestic. There are three mechanisms for flagging needed appropriation permits. One is the well drilling permit, of which over 15,000 were processed last year. Every driller in the state is required to have a license, and as a condition of that license, he or she must obtain a WRA permit for each well. Three pieces of paper are involved for farming and domestic uses. An application is submitted to WRA. This is entered into the computer, and during the night, the computer prints a permit. The next morning the permit, a blank well completion report, and a metal tag with the permit number are mailed to the driller. The turn­ around time is 24 hours. All permit applications for industrial or commercial wells are reviewed and checked to see if there is an existing appropriation permit. If none exists, the driller is informed that the drilling permit can­ not be issued until their client obtains an appropriation permit. The well drilling program flags most of the needed appropriations permits. Maryland also has a waterway construction program for permitting reservoirs, weirs, or, in effect, all construction in a stream or within the 100-year floodplain. Projects that are candidates for appropriation permits are flagged for further review. WRA's enforcement division, consisting of about 40 individuals or an average of about two per county, conducts inspections on a range of permits, including temporary stream crossing permits, discharge permits, waterway con­ struction permits, and appropriation permits. If they observe a building under construction that may require an appropriation permit, they will inves­ tigate. 362 WRA coordinates appropriation permits with other state and local programs. For example, the law requires that the water used under an appropriation permit not violate state water quality standards where discharged. So, if the method of wastewater treatment is a septic tank, WRA insures that the site has been ap­ proved by the Department of Health and Mental Hygiene. If the discharge is to a wastewater treatment plant, the discharge permit is reviewed to determine whether or not there is sufficient capacity in the treatment plant before the appropriation permit is issued. Permits are coordinated to some extent with local land use planning. Each county and the City of Baltimore must prepare and annually update a comprehensive water and sewerage plan. That plan in­ cludes all capital improvements for both water supply and wastewater treatment over the next 10 years. Presumably the plans closely relate to the land use zoning being done at the local level. The county is asked to review each appropriation permit application for consistency with its plan. An appropria­ tion permit will not be issued unless it is consistent with the comprehensive water and sewerage plan. WRA requires aquifer testing for certain proposed wells and has field personnel to insure collection of accurate data. Testing generally is required for proj­ ects of greater than 50,000 gallons per day. In the coastal portion of the state, which includes about 60 percent of the total land area, a 24-hour test is required consisting of 24 hours of pumping followed by a recovery phase. A pumped well and an observation well are used. The rock country, which is west of Baltimore--the Washington Metropolitan area--requires continuous pumping for 72 hours, with a recovery phase after that. Once the application is complete, WRA is required to make an evaluation, reach a tentative decision, and schedule a hearing, all within 30 days. Our evalua­ tion asks essentially three questions: 1. Is the requested amount reasonable? A permit application may request 200,000 gallons per day for a use that normally requires only 2,000. Upon inquiry, the applicant may reply that they were merely seeking as much as they could get. WRA attempts to avoid issuance of permits for unreasonable amounts of water. Standard water use data is used as a check. 2. Can the project deliver the requested amount? An application may request 100,000 gallons a day, whereas the well can only produce 30 gallons per minute. WRA will not issue a permit for more than the well can supply. In the case of surface water, the depend­ able yield of the reservoir is computed to assure that the num­ ber in the permit is one that can in fact be produced by the applicant's facilities. 3. Will existing surrounding users be impacted? If an application concerns ground water, it is necessary to make evaluations of possible well interference and to determine whether such inter­ ference is reasonable or unreasonable. Such deliberations may lead to restrictions on the quantity that can be pumped or on well location. 363 ExtensivE· public notification procedures have been developed for the permitting process. When the application is received, it is published in tlte Maryland Register. WRA's tentative decision goes into the Maryland Register and has to appear twice in a daily newspaper and in at least two weekly newspapers. In addition, the applicant must formally notify all adjoining landowners. In this last session of the General Assembly, a cutoff of 10,000 gallons per day was established for the public hearing requirement. So only those projects greater than 10,000 gallons per day must go through the public hearing process. The public hearing can take two forms--an adjudicatory hearing or an informational hearing. Adjudication is very time consuming because of cross examination and other procedures. With regard to appeals, the applicant is allowed 30 days to file a formal appeal after final action. There are several in-house procedures for contesting the amount of water awarded if it was lower than requested. Per­ mit conditions may be contested, e.g., conditions on low flow releases. There are certain weaknesses in the Maryland program. One concerns the vague­ ness of the farming exemption. It is not really clear what was intended by the farming exemption, although such exemptions are not unusual in riparian states. There are staff problems. The program now consists of about 12 people, half professional and half clerical. It is difficult to get sufficient funding to maintain an adequate staff. One of our biggest problems still is communica­ tions--having the people know that they need an appropriation permit. It would be helpful to tie the appropriation permit into the county building permit pro­ gram so that an individual is notified of the requirement when he applies for a building permit. At present, WRA identifies many applicants just before they start construction or shortly after they have started construction. It is very awkward at that point to have them move the well 1,000 feet away, or make other necessary changes. Another problem in terms of our surface water resources is that for every five gallons that leave the state, four enter from surrounding states. Maryland is downstream from everyone. Relations are good with Vir­ ginia, but Pennsylvania has given us problems on streams that flow north to south. In some cases where half the watershed is in Pennsylvania and half is in Maryland, WRA has appropriated half the water. But Pennsylvania users may dry it up, with the result that Marylanders have permits but no water in the streams. In our discussions Pennsylvania has been sympathetic but claims a lack of control over most of their surface water withdrawers. The program has a number of positive aspects. It is intimately tied in with planning. It keeps some water in the streams. Our target for low flows is the seven-day, ten-year flow. There are examples where higher flows have been main­ tained due to strong lobbying by fishery or other concerns. In a case involv­ ing a waterfall that was an amenity everyone wanted to preserve, WRA sent a professional to observe the waterfall, make measurements, and come back with a judgment as to what was the minimum amount of water that preserved the beauty of the falls. Another positive aspect is that the appropriation permit program reinforces the water quality program. There are six research needs deserving consideration: 1. Well testing in the rock country. Are our testing programs pro­ ducing good data, and how can the data be analyzed to determine the dependable yield of a particular well in a particular geologic 364 unit? The hollow feeling sometimes arises that after a 72-hour pumping test, two more days would totally dry the well. Some wells have gone dry during the 72-hour test. 2. Criteria _ for prescribing reservoir releases. WRA requires a sus­ tained low flow release from reservoirs, but determination of the flow amount and respective impacts is difficult. There is a need for a good demonstration of benefits from maintaining various levels of low flow releases. Does it matter if the release is interrupted for a few hours or a few days? There is a need for better criteria-based, cause-effect relationships. 3. Better aquifer models are needed. The Maryland Geological Sur­ vey has been helpful in developing models for the artesian aqui­ fers in the coastal portion of the state. The models appear to provide good results; however, it is much faster to use the standard aquifer analyses curves and compute well interference manually. It would be desirable if an application could be fed directly to the computer for determination of impacts to all existing users. There is still a ways to go before we reach that objective. The present models are too expensive to run for individual projects. Perhaps the answer is to annually . place all new permits into the model to see what additional water level lowering may have resulted. 4. Significance of the interconnection of surface water and ground water, particularly in rock country. Base flow in streams, which is important in the appropriations program, is related intimately with the ground-water system. If a basin has a large number of wells, how much will they cut down on the base flow? Should ground-water withdrawals in the basin be restricted because they could dry up the stream or materially diminish the low flow of the stream? Studies are underway in this area involving careful measurements from three small watersheds of different geology. But there are many unknowns that will be with us for a long time. 5. Prediction of statistical low flows when no records exist for the point of interest. In most cases the point of withdrawal is above and therefore has a smaller drainage area than an estab­ lished USGS gaging station. What is the strategy or mathematical tool for relating flows at that downstream gaging station to an upstream point? The present calculations used for this purpose are crude at best. 6. Effectiveness of water conservation. Sometimes a situation arises where a particular municipality wants to use a certain amount of water, but its reservoir's dependable yield is somewhat less than that amount. The typical response is that the citizens will be required to practice water conservation during a drought. At this point in time it appears that there are too many unknowns to address this matter in a quantitative way as a part of an ap­ propriation permit. 365 QUESTIONS AND ANSWERS Q. Could you tell me a little bit about the power plant siting program? A. Yes, that is also in the Department of Natural Resources but not in the Water Resources Administration. The program goes back to 1971 when a special unit was developed within the Department to investigate existing and proposed sites for power plants. This unit does a great deal of study on the total environmental impact, ' including biological, ecological, air pollution, and other impacts. At this point in time they have purchased one site which is reserved and will be leased to a power plant when it is needed to increase power production in the state. The site is owned by the state, and new power plants can be built only on state-owned or state-approved sites. I may also point out that the funding for this--which is the key to everything--is based on an environmental surcharge added to customers' electric bills. They have enough dollars to do rather thorough studies as to the best possible place to put a power plant and of special considerations that should be made in con­ structing a power plant at a particular site. Q. Do you have anything like that for impoundment sites that you could reserve for the future? A. No, we don't. It might save a lot of controversy if we could. It is al ­ most impossible to get a reservoir site at this point in time. From our experience sites are generally opposed. Q. Does your power plant siting program cover fossil fuel and nuclear? A. Yes, it does. fossil or nuclear. encompassing. The only state-owned site to date could be used for either The law makes no distinction--it is supposed to be all Q. You're talking about 15,000 well permits a year. Do you have any cen­ trally supplied systems? We've got those things supplying thousands of cus­ tomers on each one. In Mississippi we've just about eliminated a lot of these little individual well drillings. Don't you have some of that type of thing in Maryland? A. Not to any significant extent. Ninety-five percent of the wells are domes­ tic (individual homes) and farming. Included in farming are 150 for irrigation, and maybe 200-300 for other farming purposes. Industry, commercial users, and municipalities reflect the remaining five percent. So a high percentage are domestic. Q. Administratively, it's a lot easier to handle one big system than a thou­ sand little ones, isn't it? A. I couldn't agree with you more. That is one element we missed in our legal authority, I guess. That is strictly a county decision--we don't touch it at the state level. Q. With the many permits you are issuing, what percentage of the applications are you declining to issue and what are your criteria? 366 A. The criteria go back to the law, but it's fairly general lanLuage based on protection of the public interest and welfare. The number we rec,lly deny are very, very few. I will just be honest with you--what we instead do is hang on conditions, restricting the amount that can be pumped and that type of thing. Connnent. You're in good company. Practically every other place I've ever seen does the same thing. Q. Do you have exemptions other than domestic and agricultural? A. In a practical sense, no. When the original law passed, municipalities were exempt, but in 1969 it was amended. Now all municipalities have permits. Users in existence on January 1, 1934, are exempted. Q. And all industry is under it? A. Yes. Q. You mentioned that you have a riparian system. Well, under a pure riparian system, the criticism is that you never know what you have because somebody else comes along and your use is no longer reasonable. The way you've ex­ plained it, it seems to me that if somebody else comes along and gets a permit, that party is prevented from interfering with these other people who were there before. Is that correct? A. I did manage to read through volume 7 of Clark, Water and Water Rights 3 and he claims t~at you're entitled under an administrative procedure to give a slight deference to prior users. Since our permits are for 10 years, we re­ spect an existing use for the 10-year period. Presumably when the permit expires we could go back and make a more equitable adjustment for sharing of the available water supply, assuming the water supply were limited. Q. I guess my question is, are the people more certain of their water rights under your riparian system than under others? A. I agree with you if your point is that there is some uncertainty regarding long-term water rights. Q. But under your system, it's when your permit is renewed after 10 years that you have to worry about it. A. In actuality we haven't faced that question. It wasn't until 1969 that we decided to give 10-year permits. The main reason was to keep abreast of changes in the rules and regulations. We wanted the capability of rewriting permits to incorporate the current rules and regulations. Next year we have to deal with the question of how we re-issue and how much preferential treatment is given to an existing user. I suspect that most of the existing permits will be extended for another 10 years. Q. Do yo~ have any saltwater intrusion problems as a result of over-pumping? A. Yes, we have had. The City of Baltimore at one time had 400 ground-water 367 wells supplying most of its industry. Saltwater intrusion resulted because many wells penetrated more than one aquifer, and a salty aquifer leaked into a fresh one. We are closely monitoring Ocean City. We do know that two or three of the upper aquifers have saltwater intrusion, but the next one down contains fresh water and appears okay. All aquifers beneath that fresh one are salty. We have had problems in other portions of the state where re­ strictions on pumping were imposed to prevent intrusion. With the large shore­ line of Chesapeake Bay, as well as our close proximity to the Atlantic Ocean, we could be faced with a greater problem. Up until now it hasn't been a big problem. Q. The Washington Suburban Sanitary Commission has provided a lot of leader­ ship in this water conservation area, and I just wondered whether any of this same concept has rubbed off in your review of permits--whether when you say you're reviewing them for renewal, at that point in time you'd look at the amount of water, the purpose and use, and reevaluate the reasonableness of the use in terms of current technology versus what i~ was when the original permit was issued. Have you tried to tighten up on this, to extend the supplies fur­ ther? A. We are required by statute to review issued permits triennially; however, those reviews haven't emphasized water conservation. Perhaps when I described research needs in this area, I should have noted that a bill went through this session of the General Assembly under which the Department of Licenses and Permits will set up statewide standards--new plumbing codes specifically for water conservation. The Suburban Sanitary Commission, which you referenced, has include9 water conservation fixtures in its plumbing codes for the past several years. I might provide some background information, WSSC supplies the Maryland portion of the Washington Metropolitan area. Their average withdrawal from the Potomac River is 100-120 million gallons a day with a peak of about 180 million gallons per day. They've shown a lot of interest, and I consider them a leader in the area of water conservation. Despite political and busi­ ness opposition, WSSC just enacted what they call a progressive rate structure so the more gallons you use the more you pay per unit of water. Apparently that is the only effective way to make water conservers out of the public. Q. Did the Maryland Legislature approve the Potomac low-flow agreement? A. Yes, it did. Between the jurisdictions of Maryland, Virginia, and Washing­ ton, D.C., we got to the point that withdrawals exceeded the low flows of the Potomac River. I think if left to Maryland and Virginia, the agreement could have been drafted in about two years. Having to deal with the Corps of Engineers delayed the process. The agreement essentially is finalized, and I don't anticipate any more delays. It is basically a sharing of the water among the three largest users in the Washington Metropolitan area. Comment. I'd like to comment if I might. It only took Maryland and Virginia about two or three months to come to an agreement--the problem was in coming to an agreement with the Corps and D.C. Q. To your knowledge, have you ever turned down a ground-water withdrawal application because of its effect on minimum flow in a stream? 368 A. No, \le have not. We have had special studies to quantify im:erception of stream flow, but that is all. Q. I take it your permittees are isolated from any cause of action by lower riparian owners once they get a permit. Does that isolate them from your nor­ mal common law, lower .riparian suit for damages or injunctive relief? A. We haven't had a court case since the appropriation law was enacted. The administrative process which has been carried out consistently, uniformly, and equitably should have some standing in a court of law. We recognize those individuals within a watershed using small amounts for irrigating their gar­ dens and for watering livestock, and we don't appropriate that portion away. Since a portion of the streamflow remains, the permittee should have some pro­ tection from claims by a lower riparian. But that is a guess--we haven't been through the process. Q. You said you've never turned down anyone to date? A. No--we have denied permits. Q. Tell us a little about your flood management program. A. This is a comprehensive program that picks up where the HUD program stops. The HUD program looks at the metropolitan areas, and we are defining the hun­ dred-year floodplain for all remaining portions of the state. Q. Do you -provide guidance to local communities in development of their flood­ plain management ordinances and this sort of thing--is this part of your pro­ gram? A. Actually the state's role is more technical assistance towards developing basin-wide stormwater management plans. The program includes a digital com­ puter model which can handle various land use combinations and alternative stormwater management practices. Guidance on land use would be indirect, since decisions on land use are made at the local level. Q. Isn't there a state permitting program for building on the floodplain? A. Yes. Any dredging, filling, or any construction on a floodplain--even crossing a stream, requires a permit. Q. Do they cover wire crossing over them too, like some places? A. Only for the Potomac River. In general that is one of the few things affecting streams that we don't restrict through permits. 369 Summary 371 SUMMARt SESSION CLOSING STATEMENT BY DAVID M. GRUBBS OF ALABAMA There may be mixed emotions in the Alabama delegation. One objective of this conference has been to focus on problems, and I respect the variables. It ap­ pears that among the Alabama delegation, there is no clear identification of problems. The Alabama Legislature has repeatedly expounded a policy for the conservation, protection, and wide utilization of water resources. Our pres­ ent Governor has stated that his administration is backing all of our programs in water resources management. Alabama participates in the title III program, 208 program, Coastal Zone Management, and flood plain management. The state has many local authorities for planning and management of the water resources. The Alabama Development Office administers a program for the development of a water and resource related land comprehensive plan. Although there is poten­ tial conflict in overlapping jurisdictions, the fragmented administrative agencies do their jobs. I have stated that there is no shortage of water in Alabama, and this is the truth. It might be equally stated that during times of drought in the West and floods in the East, there is no shortage of water in the United States on the whole. Of course California and Arizona wouldn't agree with this. Actu­ ally, there is no worldwide oil shortage, but the share of the oil under the control of the United States is very limited. It is like money in Alabama. There is plenty of it, but the amount under my personal control is limited. In Alabama, water is plentiful on a statewide basis, but is subject to natural allocation. There are many sections of the state that ·are short on water. Birmingham is short or water. Mobile is short on water, has been short on water, and will be shorter if we don't work out a contract with Mississippi. Among those in Alabama who are knowledgeable of the facts, there is a consensus as to the need of statewide comprehensive water and land planning and manage­ ment. In the public sector there is apathy because we don't have many water crises. Although legislation is adequate in many instances, many of our agencies do not exercise all their prerogatives--they don't do all the things that they could. Some of them are simply not motivated because, again, we do not have many crises. Our problem is leadership within the power structure. There will be resistance, and change will be very unpopular. I professed faith in title III for five years. I was one of the co-authors in 1973 of a model water law for Alabama that provided for a single allocation agency with permitting powers. Of course this included a constitutional amend­ ment to establish the state power over withdrawal and utilization of unappro­ priated public water. Alabama hopefully will move forward in the education process, and I hope this conference will recognize that Alabama does participate in programs for al~ocation and management of water resources. 372 DAVID H. HOWELLS: SUMMARY OF FIRST SESSION This summary starts with Alabama but was prepared on the basis of what was said before the update by David Grubbs. With respect to legislation, the comments were to the effect that there is no statutory constraint upon withdrawal or consumptive use. In the corrnnon law, there is no protection of riparian owners unless within the preferred class. There is little security and dependability, and no concern over relationships between types of water. There seemed to be a consensus that there is a need in the legislative area for a systematic and rational legal framework. More specifically, there is a problem with respect to membership of the Water Well Board as prescribed by law. There is no doc­ trine in law concerning interbasin transfers. There are some problems with regard to scenic rivers. With respect to administration, the impression given is one of overlap and fragmented responsibility among limited purpose agencies. A need was expressed for corrective legislation, executive action, and coordination. In the area of research, it was suggested that there be a coordinated regional research project to develop legislative programs for water resources manage­ ment. The exact nature of such research was not specified. The only inter­ state problem mentioned was the Mobile diversion with respect to Mississippi. In Florida, except for possible problems arising from current court challenges, there appears to be no need for change in legislation. With respect to admin­ istration, .there is a need for coordination of land and water use planning and regulation in the public interest. The allocation of responsibilities and cooperation between local governments and the water management districts need­ ed some improvement. There is a problem with more effective melding of water quantity and quality planning and permitting within DER and the management dis­ tricts. There is a need of some simplification or streamlining of the permit­ ting process. Under research, certain needs have been identified from the water element of the state plan rather than from the individual comments of the speakers. The plan indicates that there is some need for legal research to further define reasonable beneficial use--provision must be made for a clear test of what con­ stitutes reasonable beneficial use, including reasonable variations. Second is the standard method to facilitate the quantity inventory and equitable alloca­ tion of water in the public interest. Criteria are provided in that publica­ tion. Three concerns criteria for evaluation of minimum flows in streams and water elevations in surface bodies of water. Four involves methods for identi ­ fication of beneficiaries in water project services and the level of appro­ priate charges. A fifth need is for a computer modeling technique to allow accurate assessment of the impact of withdrawals on saltwater intrusion and on streams of intermittent flows. Under technology transfer, the only apparent need is for a manual detailing specific requirements to be met in performing or reviewing economic analyses of water resource projects. With regard to interstate problems, there is need for more emphasis on coordination between Alabama and Georgia. 373 NEIL S. GRIGG: SUMMARY OF SECOND SESSION This report covers Georgia and Mississippi. But before getting into specifics, some general comments are needed. Personally, I think that this workshop has been very valuable. T~e information produced represents a gold mine of raw material in terms of comparative experiences in developing the different doc­ trines of water law and institutions. Second, out of this conference ought to come a quick, hardhitting document in a newspaper or magazine format that would give publicity to this conference and show the differences among the south­ eastern states. This document could be made available to legislators, agency heads, and anybody else who might like to see quickly how their states compare to the other states in the Southeast. After all, we are all treating the same kinds of problems but going about it in diffe'rent ways. The third opportunity is to give attention to interstate issues on a bi-state or tri-state basis. This issue has been mentioned over and over again. I would hope that the lay publication that I just mentioned might identify those bi-states and tri-states issues. Regarding future conferences, there doesn't appear to be a need for a follow-up conference like this innnediately. We need another one that concen­ trates on specific iS$ues. With regard to the Georgia and Mississippi papers, a few specific issues should be noted. Leonard Ledbetter mentioned the need to develop federal water man­ agement data bases and information. He placed this need in the category of data bases and research. What he was talking about is not the kind of research that we normally do in our universities so much as the kind of research that is going on in agencies concerning information and intelligence about water needs. That is a bona fide kind of research that is directly related to the amount of money available. Bob Davis of course hit that really hard in terms of man­ power needed. I think we also need to work toward increased awareness on the part of the decision-making body of the need for that kind of information. Another research topic is the suitability of the · ircapac.ity use" designation as a general approach in view of its costs. Several speakers made the point that this approach seems to be an expensive way to manage water. My last point is that there needs to be increased attention to interstate issues and comprehen­ sive planning. JAMES C. WARMAN: SUMMARY OF THIRD SESSION The speakers from North Carolina and South Carolina did an excellent job of providing information about their water law situations and needs. North Caro­ lina told us about its laws based on riparian rights and the reasonable use doctrine, noting that there is no provision for universal permits; but identi ­ fied problem areas can be designated as "capacity use" areas. Neil Grigg has just spoken about the problems in implementing the capacity use area provision. There is a problem in North Carolina that in-stream uses are not protected by any single law. Several laws touch on this, creating administration problems. There was discussion of the need for a shift in law from concern with just the resource itself, or the management of the resource. At present, North Carolina does not have a program for reservoir site reservation. I suspect that is a problem of legislation or state cost sharing. The need for state legislation is acute in North Carolina. 374 The best legislation in North Carolina concerns water quality. fhis situation is common among several of the states in that region. However, it also appears to be common experience that non-point pollution is not yet being addressed. We have sparse knowledge and very little if any control. There was discussion of the sedimentation and several other programs that have built in exemptions for agriculture or other kinds of things. With regard to flood plain management, there is apparently no protection in North Carolina. This problem area was addressed by Gilbert White 30 years ago. Some of these items have been mentioned for other states and I don't suppose I need to mention them again. The Coastal Zone Management Act is working in North Carolina. I would like to know a little more about how effective they are in using whatever constraints they have available under that act. As David Grubbs has pointed out, we have an act but can't get our board to move because of political considerations. So there we have a fine law, but no implementation. A lack of emphasis on conservation exists in North Carolina, and North Carolina has not yet implemented statewide water allocation standards. Another idea we have heard from several states is a lack of adequate water allocation machinery. Because of that, someone who needs relief must go into a law suit to resolve the problem. There is also lack of machinery to determine if water transfers are in the best interest of the state, although there are several provisions for water transfer. But who says they are good or bad, or how they are to be accomplished? Lack of control of fluctuation of lake levels is another prob­ lem. Interstate problems are important. Water policy is lacking in several areas. Instream flow needs should be established. Concern exists about large scale movement of water, with a particular concern about avoidance of evapora­ tive losses. Water planning should be combined with land use planning so that consideration is given to such issues as protection of aquifer recharge areas. Public rights of access are also an important issue. South Carolina employs the reasonable use version of the riparian doctrine for surface water allocation. A major overhaul in law may be needed to correct problems in this area. The capacity use area concept is being used to allocate ground water in South Carolina, but there is a significant loss of time before controls can be implemented under this approach. The problem of ownership of the tidelands is a major problem. There is a lack of money to develop the ade­ quate data collection program for both ground water and surface water. Inter­ state transfers are of concern, and there is need for orderly procedures in this area. Serious ground-water problems exist, but there is concern that without a crisis, no attention will be given by the legislature. I want to harken back to something Maynard Hufschmidt said; we need to learn better how to manage these crisis situations to our advantage in the development of new management programs. Charles Randall pointed out that it probably would be wise for South Carolina to hold back to see where President Carter is going in his reorganization of the federal government. That may identify some particular roads for South Carolina to follow. 375 WILLIAM R. WALKER: GENERAL SUMMARY Most of our problems are people problems. I was impressed by listening to the various presentations as to how free people in eight different states can elect legislators that all appear to come out of the same mold, at least in the sense that they all seem to react the same way. And so it seemed to me· that we do have a certain commonality of problems. As we get more knowledge and informa­ tion on these areas, we are better able to move into the administrative and legal structures to make the necessary changes. One of the problems that we're becoming more aware of in all the states is that we have to look more towards our interstate problems. We have quite a few of these, and this seems to be one of the areas that has been neglected and one where we need to concentrate on getting considerably more information. We need to look at pairing up the states with common problems. It seemed to me that there were a number of states with flood damage abatement problems. There are a mass of problems in this area which we don't all need to solve individually. Somehow we must be able to get this information together for mutual benefit. The interbasin transfer issue is also frequently an interstate problem that needs joint consideration. It seems to me that a lot of us are facing the problem of determining what the critical instream uses are, and how much water do you need for those uses. These kinds of criteria should be applicable throughout the basin. We certainly are going to have to do some­ thing about protecting our ground water. We need a lot more information about areas of recharge and other aspects. Public access, whether you are talking about the beach or a stream, seems to be a recurring problem throughout the states . .,,, On the horizQn it seems to me that 404 permit provisions with the Corps of Engineers may turn into a state program. I think we as a group of states ought to consider what ought to be our posture with re&pect tb this program--what kinds of information and data do we need to operate consistent with our mutual needs. With respect to state participation in other federal programs, we all wrestle' these things in some way or another. If North Carolina works out a cost sharing system that is adequate, it -probably would be suitable for Vir­ ginia. These programs are going to continue with us, and there are a variety of things that we ought to be able to learn in dealing with the Corps and the SCS. I don't think we have enough resources to develop this d?ta base inde­ pendently, but it may be manageable collectively. The one technology transfer problem that I picked up concerns data bases. Do we have among our collective selves -data which is not even known intrastate as well as interstate? We ought to identify the data bases that might be of value across state lines, and in-state, and see if we can't make these avail ­ able. It is bad enough not to have the information, but it is even worse to have the information but somehow not have access to it. There are a number of special areas of concern. Saline water intrusion seems to effect the eastern coastal area. We are going to continue to use ground water, and saline water is still going to be a threat to our ground-water resource unless we are able to manage .it in some way. Marshlands are of concern. It seems to me that we are going to have to manage our · surface water and ground water conjunctively. This will require some institutional and legal changes to make it work. With 376 regard to institutions, we need to know more about the efficienc:r of the "capa­ city use" approach to managing resources. These seem to me to be the most substantive issues which crossed at least two or three states as I listened to the presentations of the last day or so. Now, do you have any that I missed? Discussion from the Floor I think that the question of intermittent streams kept coming up. Perhaps your statement with respect to critical instream uses has been intended to include such things as what level of flow to protect. I think the South Carolina presentation brought up several things we're think­ ing about. Nobody else talked about administrative procedure problems, but we have them, and we haven't pulled it together yet. South Carolina, Virginia, and some of the others pointed out the competition for water and the need for mechanisms to manage conflict. With respect to interstate problems, I would suggest that it would be worth concentrating on significant variations in state law from one state to another. This may have a special bearing on the resolution of interstate problems. Non-point pollution has not been emphasized here but is obviously a significant problem. One important point that was brought up is that the states might consider dis­ cussing among themselves their connnon stand with respect to the federal govern­ ment. We had opposing philosophies expressed. One is represented by the South Carolina comment that we should wait and see what the national policy is and then react to it. I think at least implicitly the opposite was brought out in North Carolina that we ought not to gear state programs in terms of what the federal government happens to be doing. I think the crucial thing is that there is no pressure on the federal government to solve water allocation prob­ lems. Allocation is not something the federal g~vernment is addressing; yet this is the very purpose of this conference. So that is an issue where we appear to have opposing points of view. Some people felt that climbing on the federal initiative is an effective approach, and there is certainly realism there. The other is that we ought to be very wary, and have in mind what we want to do ourselves. · What about 208--it seems to me that has a potential for combining water and land use management. I would think that throughout the Southeast, maybe in the nation as a whole, land use control is not looked on too favorably; yet, we are doing a lot of land use control through water management. They are integrally related. We ought to point out that one of our follow-up comments is devoted to non-point control, and it will have institutional aspects. Any other comments or questions? You have been very patient and we certainly appreciate all the information that you have provided, and we look forward to working with you as we try to find solutions to these various problems. 377 WATER MANAGEMENT PROBLEMS IN THE SOUTHEAST: ANALYSIS OF THE RESULTS OF A WORKSHOP SURVEY William E. Cox Assistant Professor Virginia Polytechnic Institute and State University Blacksburg, Virginia The participants in the Southeast Gonference on Legal and Administrative Sys­ tems for Water Allocation and Management represented a diverse cross section of professional interests involved in water resources management. In order to as­ similate these different perspectives into an assessment of current water resource problems in the southeastern states, each of the 22 speakers (exclu­ sive of luncheon and banquet addresses) was asked to complete a problem evalua­ tion matrix. Completion of the matrix involved ranking 15 potential problems related to water law and five potential problems related to water administra­ tion on a s·cale of 0 to 5, with the higher numbers indicating greater signifi ­ cance. The matrix is illustrated in Figure 1. The ranking of problems based on the cumulative results. of the survey is shown in Figure 2. These results are based on the 17 survey forms completed.. Al­ though the number of responses vary among the eight participating states, each state is represented. In the case of Mississippi, the single survey form used was completed by the Director of the Mississippi Water Resources Research ln­ s ti tute rather than by a speaker. The individual survey forms used in the ranking of problems are included at the end of the individual ·papers in the proceedings. On a regional basis, the survey indicates that the most significant water law problem related to surface water is allocation of supplies among competing uses. This concern applies to apportionment of supplies among withdrawal uses and protection of instream uses. The survey suggests a high level of concern with regard to interbasin transfers and interstate effects of water use, two issues related to water allocation that generally receive increased attention as water resources development expands. Water allocation is also the highest priority water administration problem with regard to surface water. This emphasis on allocation problems in both the water law and water administration areas con­ flicts with the traditional view that the Southeast is a water aburtdant region without need for highly developed water allocation systems. The survey results concerning ground water indicate that protection of ground water recharge areas is the priority legal issue on a regional basis. Alloca- 378 tion is also a significant concern, ranking second in the water law area and first under water administration. The high priority given the problem of con­ junctive management of surface and ground water reflects a need for increased recognition of physical interrelationships between surf ace and ground water within management institutions. The need for improved ground water data bases also received a high ranking. The cumulative survey results in the category of diffused surface water and drainage reflect the fact that the primary concern in this case is disposal of water and related injury rather than allocation and use. The priority legal issues are land use relationships and property damage. Wetland protection is also of high priority. The administrative issue of greatest concern consists of regulation and enforcement. This emphasis appears to reflect a need for improved regulatory programs regarding runoff control and drainage. When the problems are ranked as to significance on the basis of individual states, some divergence from regional priorities exists. For example, the regional surface water priority of withdrawal uses and allocation was replaced by environmental concerns such as wetland protection and instream uses in some cases. Other variations can be noted in Figure 3 which lists the water law issue of highest priority in each state for surface water, diffused surface water and drainage, and ground water. Similarly, Figure 4 contains the top priority administrative issues for each state. Listing of more than one item for a given state indicates equal ranking of the issues included. 379 FiguPe 1 WATER RESOURCE PROBLEMS 1. 2. 3. Surf ace Diffused Surface Ground Water Law ~ater Water & Drainage Water Withdrawal uses and allocation Instream uses Saline water intrusion Land use relationships Property damage Ownership of submerged lands ~onjunctive use surface & ground water Protection ground water recharge areas Emergency use Interbasin transfer Interstate effects Shoreline protection Wetland protection Public access Reservation of reservoir sites Water Administration Allotation standards & criteria Data bases Permit procedures Regulation and enforcement Agency structure & functions Please mark as to priority using following code: 5 highest ~ 1 1 lowest, but significant Rating of 4 or 5 indicates a belief that the problem is considered serious and that legal mechanisms insufficient to adequately address the problem. Lower ratings indicate that the problems are less severe or that existing laws address the problems. 380 Figure 2 RANKING OF WATER RESOURCE PROBLEMS IN THE SOUTHEAST: RESULTS OF A SURVEY OF CONFERENCE SPEAKERS Water Law Problems (in order of decreasing significance) Surface Water 1. Withdrawal uses & allocation 2. Instream uses Interbasin transfer 3. Interstate effects 4. Land use relationships 5. Wetland protection 6. Public access 7. Conjunctive use sur­ face & ground water 8. Reservation of reser­ voir sites 9. Shoreline protection 10. Emergency use Ownership of sub­ merged lands 11. Property damage 12. Protection ground water recharge areas 13. Saline water intru­ sion 14. Diffused Surf ace Water & Drainage Land use relationships Property damage Wetland protection Conjunctive use sur- · face and ground water Emergency use Withdrawal uses and allocation Protection ground water recharge areas Saline water intrusion Reservation of reser­ voir sites Interstate effects Shoreline protection Ownership of sub- merged lands Public access Instream uses Interbasin transfer 381 Ground Water Protection ground water recharge areas Withdrawal uses and allocation Conjunctive use surface and ground water Saline water intrusion Land use relationships Emergency use 'Property damage Wetland protection Interbasin transfer Interstate effects Public access Reservation of reservoir sites Shoreline protection Ownership of submerged lands Instream .uses Figure 2 continued RANKING OF WATER RESOURCE PROBLEMS IN THE SOUTHEAST: RESULTS OF A SURVEY OF CONFERENCE SPEAKERS Water Administration Problems (in order of decreasing significance) Surf ace Water 1. Ailocation standards and criteria 2. Data bases 3. Permit procedures 4. Agency structure and functions 5. Regulation and en­ forcement Diffused Surface Water & Drainage Ground Water Regulation and enforce- Allocation standards and ment criteria Agency structure and Data bases functions Allocation standards and criteria Data bases Permit procedures 382 Regulation and enforce­ ment Permit procedures Agency structure and functions V J 00 V J F ig ur e 3 M OS T SI G N IF IC A N T ST AT E W AT ER L AW P RO BL EM S S ta te A la ba m a a F lo ri da b G eo rg ia c M is si ss ip pi a N or th C ar ol in ac So ut h C ar ol in aa T en ne ss ee b V ir gi ni ac S ur fa ce W at er W it hd ra w al u s e s & a ll o ca ­ ti o n W it hd ra w al u s e s & a ll o ca ­ ti o n L an d u s e r e la ti o n sh ip s W et la nd p ro te ct io n W et la nd p ro te ct io n In te rs ta te e ff ec ts W it hd ra w al u s e s & a ll o ca ­ ti o n In te rb as in t ra n sf er W it hd ra w al u s e s & a ll o ca ­ ti o n O w ne rs hi p o f su bm er ge d la nd s In te rb as in t ra n sf er P ub li c r ig h ts i n n a v i­ ga bl e w a te r In st re am u s e s W it hd ra w al u s e s & a ll o ca ­ ti o n In te rb as in t ra n sf er a B as ed o n o n e re s po ns e. bB as ed o n tw o re s po ns es . c B as ed o n th re e re s po ns es . D if fu se d S ur f a c e W at er & D ra in ag e W it hd ra w al u s e s & a ll o ca ­ ti o n S al in e w a te r in tr u si o n L an d u s e r e la ti o n sh ip s P ro pe rt y da m ag e L an d u s e r e la ti o n sh ip s La nd u s e r e la ti o n sh ip s L an d u s e r e la ti o n sh ip s G ro un d W at er W it hd ra w al u s e s & . a ll o ca ti o n S al in e w a te r in tr u si o n L an d u s e r e la ti o n sh ip s P ro te ct io n gr ou nd w a te r re c ha rg e a re a s P ro te ct io n gr ou nd w a te r re c ha rg e a re a s C on ju nc tiv e u s e s u rf ac e & g ro un d w a te r W it hd ra w al u s e s & a ll o ca ti o n P ro pe rt y da m ag e In te rs ta te e ff ec ts P ro te ct io n gr ou nd w a te r re c ha rg e a re a s W it hd ra w al u s e s & a ll o ca ti o n w 00 +: -- S ta te A la ba m a a F lo ri da b G eo rg ia c M is si ss ip pi a N or th C ar ol in ac So ut h C ar ol in aa T en ne ss ee a V ir gi ni ac F ig ur e 4 M OS T SI G N IF IC A N T ST AT E W AT ER A DM IN IS TR AT IO N PR OB LE M S S ur fa ce W at er A ll oc at io n s ta n da rd s & c r i- te ri a P er m it p ro ce du re s R eg ul at io n & e n fo rc em en t A ge nc y s tr u c tu re & f un ct io ns D if fu se d S ur fa ce W at er & D ra in ag e G ro un d W at er A ll oc at io n s ta n da rd s & c r i- A ll oc at io n s ta n da rd s & c r i- A ll oc at io n s ta n da rd s & c r i- te ri a D at a ba se s D at a ba se s D at a ba se s A ll oc at io n s ta n da rd s & c r i­ te ri a A ll oc at io n s ta n da rd s & c r i- te ri a D at a ba se s R eg ul at io n & e n fo rc em en t A ge nc y s tr u c tu re & f un ct io ns te ri a D at a ba se s te ri a D at a ba se s D at a ba se s D at a ba se s \ A ll oc at io n s ta n da rd s & c r i- A ll oc at io n s ta n da rd s & c r i- A ll oc at io n s ta n da rd s & c r i- te ri a te ri a te ri a A ge nc y s tr u c tu re & f un ct io ns A ge nc y s tr u c tu re & fu nc ti on s A ge nc y s tr u c tu re & fu nc ti on s A ll oc at io n s ta n da rd s & c r i- A ll oc at io n s ta n da rd s & c r i- A ll oc at io n s ta n da rd s & c r i- te ri a te ri a te ri a a B as ed o n o n e re s po ns e. bB as ed o n tw o re s po ns es . c B as ed o n th re e re s po ns es . Appendix: Conference Participants 385 CONFERENCE PARTICIPANTS Robert S. Bomar Georgia Attorney General Office 132 State Judicial Building Atlanta, GA 30334 Marvin T. Bond Water Resources Research Institute Mississippi State University PO Drawer AD State College, MS 39762 John C. Bottcher Florida State Department of Environ­ mental Regulation 2600 Blair Stone Tallahassee, FL 32301 William F. Brandes Water Resources Research Center University of Tennessee The White Avenue Building Knoxville, TN 37916 Denis J. Brion Marshall-Wythe School of Law College of William and Mary Williamsburg, VA 23185 Henry H. Caddell Alabama Attorney General Office Montgomery, AL 36130 William E. Cox Water Resources Research Center Virginia Polytechnic Institute and State University Blacksburg, VA 24060 Mercer M. Doty North Carolina Center for Public Policy PO Box 10886 Raleigh, NC 27605 John M. DeGrove Joint Center for Environmental and Vrban Problems Florida Atlantic and Florida International Universities Boca Raton, FL 33431 Robert V. Davis Virginia State Water Control Board PO Box 11143 Richmond, VA 23220 Frederick S. Fisher Virginia Attorney General Office Suite 308, 11 S. 12th Street Richmond, VA 23219 Neil S. Grigg Water Resources Research Institute of the University of North Carolina North Carolina State University · 124 Riddick Building Raleigh, NC 27607 David M. Grubbs 1110 Claymont Court Tuscaloosa, AL 35401 Milton S. Heath, Jr. Institute of Government University of North Carolina Box 990 Chapel Hill, NC 27514 David H. Howells · Water Resources Research Institute of the University of North Carolina North Carolina State University 124 Riddick Building Raleigh, NC 27607 Maynard M. Hufschmidt Department of City and Regional Planning University of North Carolina Chapel Hill, NC 27514 Bernd Kahn Environmental Resources Center Georgia Institute of Technology 205 Old Civil Engineering Building Atlanta, GA 30332 J. Leonard Ledbetter Environmental Protection Division Georgia Department of Natural Resources 270 Washington Street Atlanta, GA 30334 386 A.F. McRcrie Division of Environmental Management North Carolina Department of Natural Resources and Community Development Raleigh, NC 27611 Frank E. Maloney Holland Law Center University of Florida Gainesville, FL 32611 William H. Morgan Water Resources Research Center University of Florida 220 Environmental Engineering Building Gainesville, FL 32611 John N. Morris North Carolina Department of Natural Resources and Corrnnunity Development PO Box 27687 Raleigh, NC 27611 William C . . Moser South Carolina Water Resources Commission PO Box 4515 Columbia, SC 29240 Ronald M. North University of Georgia Athens, GA 30602 Jack W. Pepper Board of Water Commissioners 416 N. State Street Jackson, MS 39201 Larry O. Putt Cumberland School of Law Samford University Birmingham, AL 35209 Charles H. Randall, Jr. University of South Carolina School of Law Columbia, . SC 29205 Ernest C. Rebuck Maryland Department of Natural Resources Tawes State Office Building Annapolis, MD 21401 Jackie Sellers Institute of Natural Resources University of Georgia Athens, GA 30602 Vincent A. Sikora East Tennessee State University School of Public Health Johnson City, TN 37601 J. Owens Smith University of Georgia PO Box lM Athens, GA 30602 N.B. Theberge Box 718 Gloucester Point, VA 23062 Sam Thompson Mississippi Board of Water Connnissioners 416 N. State Street Jackson, MS 39201 William R. Walker Water Resources Research Center Virginia Polytechnic Institute and State University 617 N. Main Street Blacksburg, VA 24060 James C. Warman Water Resources Research Institute Auburn University 205 Samford Hall Auburn, AL 36830 John D. Wray Division of Environmental Management North Carolina Department of Natural Resources and Community Development PO Box 27687 Raleigh, NC 27611 387 published by Virginia Water Resources Research Center 617 North Main Street Blacksburg, Virginia 24060 Phone (703) 961-5624