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OCR for page 78
5
LEGAL AND INSTITUTIONAL ASPECTS OF DROUGHT MANAGEMENT
Edward W. Clyde
Attorney
Clyde and Pratt
Salt Lake City, Utah
When water is available at the right place and in
ample quantities, almost any system of law will work.
When water is not available, no system of law can
provide ite However, an efficient system of water law
can facilitate optimum use even during a drought.
Because the amount of water made available by nature
is erratic, cities and municipal-type districts almost
everywhere are confronted with periods of drought. In
order to provide for adequate water during drought
periods, the municipality would need to develop a
water-supply system that would be in excess of its needs
during normal times and substantially in excess of its
needs during wet cycles. If this is not done, then
during drought conditions there is inadequate water.
The only available alternatives are to develop or secure
additional water on a temporary or permanent basis, or
to ration the use of the available water. The people on
the system cannot be left to sort out the problem.
Those on the lower end of the system can drain the water
away from those in the higher parts of the system,
leaving the latter totally without water. If there is
an overdraft on the entire system, pressures drop, and
the area is left without fire protection. Rationing can
maintain pressures and assure that the limited water is
available for the critical uses. Lawn watering, which
in the West is the biggest use of water, and other
nonessential uses can be either limited or totally
prohibited.
Streams everywhere in the West reach their flood stage
in the early spring before the heavy use period arrives
in the cities. The spring runoff normally occurs in
May. The peak use develops in the hot days of July and
August, by which time the streamflows have receded.
-78-
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Thus, heaviest use is at a time when streams are low.
Then on a daily basis there are periods of peak use.
These start about 4:00 p.m. and end by about 11:00 p.m.
There is little use of water between 11:00 p.m. and 6:00
a.m. Direct flow water will thus waste unless there is
On long weekends much of the population leaves
at aborts the same
storage. _
the city. The people all return ~
time. Their lawns are dry, they need to wash their cars
and take baths, and so on, and abnormal demands are
placed on the system.
SYSTEM NEEDS
In the semiarid West a city needs a substantial amount
of surface storage where winter water and the flood
waters that are available can be stored. This storage
capacity needs to be adequate not only to take care of
heavy use during the hot summer months, but also--this
is desirable, if not necessary--to provide enough
storage capacity to permit water to be stored and
carried over two or three years. With carry-over
storage, the water accruing during wet cycles can be
carried over to provide some water during dry cycles.
The system also needs an aqueduct from the storage
reservoir to the area of use with capacity to supply
large quantities of water during periods of peak summer
use. Generally, it is also necessary for a city to
provide a water treatment facility with capacity equal
to the capacity of its aqueduct. Then to make it
possible to operate these facilities 24 hours a day
during periods of peak use, the city needs storage for
treated water so that water can be stored when use
decreases. The system also needs strategically located
distributional (overnight) storage reservoirs that can
be filled during the period after 10:00 p.m. to help
meet the heavy demands that will develop the following
day.
For example, in one large district in Salt Lake
County, the daily needs in January of the 450,000 people
served by the district can be met with a flow of
approximately 30 cubic feet per second (cfs). During
periods of peak use in August the same district needs to
provide a flow of 260 cfs. In all of Salt Lake County
we are endeavoring to develop facilities and water
supplies adequate to provide peak daily flows of
approximately 1,200 cfs. A good well in Salt Lake
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Valley will produce from 3 to 5 cfs and while these
wells help in a variety of ways, the facilities
described--a large reservoir, a large aqueduct, a large
treatment plant, treated water storage, and
distributional storage--are needed.
The objective of rationing is twofold; first, to cut
the total amount of water being consumed; and, second,
to spread out the use so that the peak demands are not
so high. The power of cities and municipal-type
districts to impose rationing is generally established
by statute and court decision.
ORGANIZATIONS THAT SUPPLY WATER
There are various types of organizations that supply
water. These include cities and towns, municipal-type
. .
water c istricts, privately regulated water utilities,
and unregulated mutual water companies, which furnish
water only to their stockholders.
. . —
The source and extent
ot the power these organizations may exercise over one
water may differ. Cities and towns have some
governmental powers and by ordinance may within their
legal authority enact regulations that have the force of
law. In Utah, for example, the state legislature has
provided:
10-7-12. Scarcity of water--Limitation on use.
In the event of scarcity of water the mayor of any
city or the president of the board of trustees of
any town may, by proclamation, limit the use of
water for any purpose other than domestic purposes
to such extent as may be required for the public
good in the judgment of the board of commissioners
or city council of any city or the board of
trustees of any town.
Water districts are creatures of statute with limited
governmental powers. In Utah there are four types of
water districts, each operating under different
statutory authority. These include water conservancy
districts created under the authority of Title 73,
Chapter 9; metropolitan water districts, created under
Title 73, Chapter 8; local improvement districts,
created under Title 17, Chapter 6; and county service
areas created under Title 17, Chapter 29. Generally,
these statutes do not provide express power to ration
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water but do contain general grants of power authorizing
the districts to acquire water systems and adopt rules
and regulations for the use of water. These statutes
would generally be broad enough to permit rationing.
For example, on conservancy districts, S73-9-28,
U.C.A. 1953, as amended, provides that the water
conservancy district board shall have the power to make
and enforce rules and regulations concerning
"management, control, delivery, use and distribution of
water." S73-8-21 grants to metropolitan water district
boards the power to construct and control the waterworks
systems necessary for the full exercise of its power,
and empowers such districts to enact ordinances,
resolutions, and orders necessary for the management
and control of the district's affairs. Improvement
districts are authorized by S17-6-3.4 to do all things
necessary in the conduct of their affairs and the
operations of their properties.
Public utilities would have no governmental power. A
utility's right to ration water would have to be
provided for in its articles of incorporation and/or its
rules and regulations, all of which would be approved
and regulated by the public service commission. Mutual
water companies are private water companies that furnish
water only to their stockholders, and their power would
be reflected in the articles of incorporation and
by-laws of each company.
CONTRACT PROTECTIONS
It is also possible when the customer applies for
water to have the customer ~
,
enter into an agreement with
the entity furnishing water to the effect that the
customer will abide by the lawful rules and regulations
of the city or municipal-type water district or
utility. The contract can provide remedies, including
the contractual right to ration in the event of
shortage. The right of an individual to receive water
from a public system on a nondiscriminatory basis does
exist. However, every user can be required to sign an
application for water service, and the essential
elements of a program to adjust to drought conditions
can be made a part of that contract. The entity
furnishing water can adopt rules and regulations and the
user can be required contractually to agree to abide
thereby. Remedies for noncompliance can include an
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injunction, the right to shut off the water for
noncompliance, and this, coupled with a turn-on fee high
enough to encourage general compliance, can be imposed.
The agreement can provide for attorney fees and court
costs for collection or enforcement. I have created and
during the early years of their existence have
represented numerous water ~ ~ ~
districts, mutual water
companies, and public-utility~type water companies--none
of which have governmental powers.
~ . . ~ ~
These
appl~cation-type contracts have been widely and
successfully used by the various types of water
organizations that I have represented over the past 40
years or so.
POWER TO REGULATE
A number of Utah cases have dealt with the powers of
these entities to regulate the use of water. For
example, in Interwest Corporation v. Public Service
Commission, 29 Utah 2d 380, 510 P.2d 919 (1973), a
developer had sold building lots in a relatively large
development that was served by a public utility created
and owned by the developer. With each building lot sale
a commitment had been made for water. When all of the
lots were developed, the total supply of the utility
would have been committed. However, initially many of
the lots were vacant. A customer on the system wanted
to increase substantially the density of condominium
housing units to be constructed on land that he had
purchased. The utility denied the extra water. The
Utah Supreme Court held that the utility had to supply
the water on a first-come, first-served basis. A
.c:imi I or r~::~1 t" wn.~ reached in North Salt Lake v. St.
Joseph Irrigation and Water Co., 118 Utah 600, 223 P.2d
577 (1950).
In McMullin v. Public Service Commission of Utah, 7
Utah 2d 157, 320 P.2d 1107 (19583, the court held that a
public service water company was not required to furnish
service to property owners not reasonably within its
service area, particularly where the extension of
service would impair the water supply of those already
connected to the system. A similar result was reached
in Rose v. Plymouth Town, 110 Utah 358, 173 P.2d 285
1946-) .
One of the more comprehensive discus signs on the power
of a munic ipal-type district to ration water is
. . .
.
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presented in Swanson v. Marin Municipal Water District,
56 Cal. Appl. 3rd. 512, 128 Cal. Rptr. 485 Cal. Ct.
App. 1976~. There a municipal water district had by
ordinance amended its rules and regulations to provide
that no new water service would be granted or installed
except under certain limited circumstances. The
ordinance was based upon an objective finding that a
threatened water shortage existed and that the ordinary
demands and requirements of the water customers could
not be satisfied. The new ordinance prohibited the
granting of new water service where pipeline extensions
would be required, but allowed new service to any person
who had an existing water main fronting his property and
who had applied for water service within 120 days after
the enactment of the ordinance.
The trial court concluded that the district was
without statutory authority to prohibit water
connections or extensions to inhabitants of the water
district, merely because of a dry cycle. The appellate
court held otherwise, and in so holding said:
a water district is empowered to anticipate a
future water shortage and to impose appropriate
regulations and restrictions where, lacking such
control, its water supply will become depleted and
it will be unable to meet the needs of its
consumers.
The court held that the district could impose a
moratorium and was authorized to impose restrictions
upon the use of the district's water in any emergency
caused by a threatened or existing water shortage. The
court held that the district could prohibit the use of
water for specific uses that it found to be nonessential
and could also deny applications for new service while
the shortage continued.
Sabine Offshore Service, Inc. v. The City of Port
Arthur, 595 S.W.2d 840 (Texas 1979) corrected on denial
of rehearing (1980). involved a water user seeking to
force city officials to vacate their water rationing
plan. The water rationing plan permitted Sabine, the
largest user of water in the area, to use water on
alternate days only. Procedure problems and the
adoption of a new water rationing plan resulted in the
case being remanded to the trial court for a new trial.
The curtailment program must be nondiscriminatory and
cannot be arbitrary or capricious. Also, there must be
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a statutory "underpinnings" granting the power to
curtail use. As noted, cities and towns have limited
law-making power. Water districts, although generally
creatures of statute, have limited governmental powers.
Then, as noted, private water companies and mutual water
companies have essentially no governmental powers, but
they can adopt nondiscriminatory rules, regulations, and
rates for the use of water. Where there is the
necessary statutory authority, or contractual
arrangements, rationing on a nondiscriminatory basis may
be imposed. Rationing may include a refusal to make new
connections and may also include rationing to existing
customers.
THE NEED FOR MANAGEMENT OF DROUGHT CONDITIONS
The problem of drought in the United States was
addressed by J. L. Sax, Water Law-Planning and Policy
(1968 Bobbs-Merrill Co. New York, New York), starting on
page 22. He notes that the problem is not so much a
problem of shortage as it is a problem of mismanagement.
.
. . This was dramatically emphasized by the
Northeast water crisis during the summer of 1965.
Drinking water was not served in New York City
restaurants while millions of gallons were lost
each week in leaky pipes, water ran through air
conditioning units (without recycling) into
sewers, the cost of wasted water through apartment
faucets was zero because of unmetered deliveries at
a flat rate, and the Hudson, a mighty river, ran by
the city unusable because of pollution.
In Water and Water Rights (R. E. Clark, ea., Allen
Smith Co., Indianapolis, Indiana, 1967), volume 7, page
184, the author, Clifton Davis, also makes reference to
the City of New York. He cites People on Complaint of
Begley v. Morgan, 102 N.Y.S.2d 267 (1951) and states:
In another New York City case, defendant was
convicted of violation of a municipal law
prohibiting willful or malicious waste of water on
testimony by a city investigator that on two
occasions while he was on defendant's premises, he
saw water pouring from a hose into a trench and
then down a drain for periods of approximately
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fifteen minutes each. Defendant was sentenced to
fifteen days or a fine of $15.
Metering, so that the customer is charged
proportionately to the quantity used, provides a
direct economic incentive to conservation, and it,
rather than criminal sanctions, is probably the
most effective and most widely used method of
controlling waste. In an article written before
the drought of the mid-sixties ["New York Drowns
Another Valley," Harpers Magazine, p. 76, Aug.
1963] Noel Perrin discusses New York City's
perennial water shortage and the political problems
involved in efforts to introduce universal
metering. The reasons behind the city's reluctance
to meter are identified as primarily political
rather than economic, but Perrin concludes that New
York's solution still lies in metering as a method
of regulating water usage.
Another method of restricting customer usage is
suggested by the Missouri holding [Filger v. Public
, 346 S.W.2d 567, (Mo. App.
1961) ~ pplier can limit the size
of the pipe that is used to tap the supply. . . .
Included in Appendix B is a rationing program actually
adopted and put into operation by the Salt Lake County
Water Conservancy District, which is a well-managed
organization in Salt Lake County, Utah, furnishing water
to 450,000 people.
Drought conditions currently exist generally in the
Northern Great Plains and in the Northeast. Crop losses
in one Wisconsin County alone are put at $23 million.
Mandatory conservation is in effect in New York City,
218 northern New Jersey communities, and 25 communities
in eastern Massachusetts. New York requires that
temperatures go above 78°F before air-conditioning can
be used, and buildings cooled with city water can be
fined up to $500 for violation. There are also fines
for leaks, washing cars and streets, watering lawns,
turning on fountains using public water, illegal use of
fire hydrants, and filling of private swimming pools.
New Jersey imposed a limit of 50 gallons per capita per
day for residential users and coupled this with an
outright ban on lawn watering, hosing streets, and
noncommercial car washing.
Another tool that has been constructively used to
reduce the quantity of water consumed is pricing. If
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the system can provide 6,000 gallons of water per home
per month, and thus meet the basic needs, any use above
the 6,000 gallons can be discouraged by a reasonable
surcharge. I had a situation where a coal mining
company (with its own company town) rented employee
housing and included water at no extra charge. The
company developed some wells, acquired rights in an
adjacent stream, constructed a small reservoir and a
treatment plant, and so on. This system was not
providing enough water for the town during years that
were dryer than normal. The next source of available
water involved a 1,800-foot pump lift and a fairly
expensive reservoir and pipeline. I was retained to
acquire the water rights in the adjacent stream and to
file applications so that the water so acquired could be
removed from that drainage area where it had been used
for irrigation and permit its use for municipal and
industrial purposes in the adjoining watershed. When I
learned that the homes were all unmetered and water was
free, I made the suggestion that instead of building the
expensive reservoir, pipelines, and so on, they put
individual meters on every home and price the water so
that the basic water needs would be met at a relatively
low monthly cost, but with a surcharge imposed for use
above this basic minimum. That recommendation was
followed, and it has never been necessary to build the
reservoir and the rest to take water from the adjacent
stream. The ability to measure and charge for the water
used, coupled with a price structure that discouraged
unneeded use, solved the problem. Now even in dry years
the original system fully meets the needs. (See Sax's
Water Law Planning and Policy, page 157, noting such a
surcharge. See also The Water Work. RnArd O f the n.i to
of Birmingham v. Barnes, 448 So.2d 296 (Alabama 1983),
rehem den. (1984) where the court Permitted the Citv
water worms Board to maintain a three-zone rate
schedule.)
In Stepping Stones Associates v. The City of White
Plains, 100 A.D.2d 619, 473 N.Y.S.2d 578 (N.Y. App. Div.
1984), the court permitted a municipality to set its own
rates, which rates varied with usage. In City of
Fayetteville v. Fayette County, 171 Ga. App. 13, 318
S.E.2d 757 (Ga. App. 1984) the court noted that "tt~he
establishment of water rates by a municipality is a
legislative or governmental power." Id. at 758.
The power of a city to prescribe its own rates, rules,
and regulations, is not without limit. It must be
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nondiscriminatory and reasonable. (See Banberry
Development Corporation v. South Jordan City, 631 P.2d
899 (Utah 1981~; Lafferty v. Pays on City, 642 P.2d. 376
tUtah lynx): and Home owners Loan corporation v. Logan
Citv. et. al. 97 Utah 235. 92 P.2d 346 (1939)).
AS noted above, If a city has adequate water to meet
its needs during a drought, the water rights it owns
will almost assuredly provide a surplus during normal
and wet years. I have by contract worked out
arrangements that solved the problem during dry periods
without creating these surpluses in normal or wet years.
In one instance I negotiated with farmers the right to
take their water for a single season, or a part of a
season, to meet urgent needs of a city during a
drought. The city paid $25,000 for the privilege of
taking the water whenever it wanted, but whenever it
takes the water it is required to replace to the farmer
the hay that he normally would have grown had he used
the water. This was agreed by contract to be 300 tons
of hay per season. The city would notify him that it
was going to take the water. It then had to replace, at
city expense, the 300 tons of hay. The farmer saved the
cost of harvesting, and this was a benefit; the city was
required to make a further payment of $1,000 each year
it took the water; and the hay fields (although dry)
produced pasture. With this arrangement the city could
take the water from farmlands and use it in the city's
water system. Since the farmer in question had the
first priority on the stream, the city was able to
divert up to 5 cfs, which was enough to meet the city's
needs. The arrangement has been in operation for about
25 years. The city has only called upon the water three
times. During the other 22 years the farmer has been
able to go on with his farming. If the city had
acquired this water permanently, it would (during each
of these 22 years) have had a surplus, and the city
would have had to find a lease for the water.
In another instance, a mutual irrigation company
serving about 70 farms owned all the water of a stream.
The farmers had no storage, and their canal system was
inefficient. My client agreed to provide the money to
build a storage reservoir and to line the canals. In
return therefor it obtained the right to secure water to
tide it over a dry cycle. Here the money advanced was
utilized to improve the system. During normal years the
farmers are much better served, and during a dry cycle
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they are willing to take care of the municipal and
industrial needs, up to an agreed level.
Throughout the West the water that is dependably
available and that can be appropriated at acceptable
expense has long since been appropriated. There are
areas where the extreme high water available in random
years can be stored and carried over. For example, a
project in Wyoming, which has 240,000 acre-feet of
storage space, can provide a firm annual supply of only
62,000 acre-feet. This amount of water (62,000
acre-feet) is not available every year above existing
rights, but water above 62,000 acre-feet is available
with sufficient frequency in random years so that with
240,000 acre-feet of storage a reasonably firm supply of
62,000 acre-feet can be made available for annual use.
New projects, using water that is available only in
random years, are more likely to be developed as a part
of a large, multipurpose, publicly financed project.
The two main federal agencies that do this kind of
construction are the Bureau of Reclamation and the Corps
of Engineers.
. - . . _
%. .
When the Bureau of Reclamation builds a project, it is
normally required to make a state water filing for that
project by Section 8 of the National Reclamation Act of
1902 (see California v. United States, 98 S.Ct. 2985,
440 U.S. 59, 59 L.Ed.2d 144 (1978~. The Corps makes no
filing, but frequently has a local sponsor who does.
The application for a permit may itself make some
initial allocation of the water, simply because the data
required in completing the application form require it.
The application will normally name the water source, the
point of diversion, the location of the impounding dam,
and place and purpose of use, and so on. When the state
engineer approves the application, the right is like any
other water right and takes its place in the state
priority system. See In re Green River Adjudication v.
United States, 17 Utah 2d 50, 404 P.2d 251 (1965~. When
the works are completed and the water is placed to
beneficial use. Proof of anDronriation is filed (showing
certificated
or aaJua~cacea ~ DUE one water allocation process only
nominally takes place at this point. Generally, the
project has a local sponsor, which receives the project
water supply, in return for an agreement to repay the
project costs. Then the local sponsor makes the
ultimate allocation to the ultimate user.
' · r r r ~
the details of actual use) and the right is
_ ~ _ 1 ' ~ ' _ _ ~ _ ~ ~ . . ~ . ~ ~ -
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WATER ALLOCATION AND CONJUNCTIVE USE
It is customary in the process of allocating water
from such projects to address the problems incident to
water shortage. Frequently, municipal users are given
preference. In any event, there is an opportunity in
that allocation process to deal with adjustments for
drought.
, e _ ~
a
A significant amount of "new'' water can also be
"found" through better coordination of existing uses,
which take maximum advantage of the short-lived high
water flows. For example, in Salt Lake County there is
an area that was dependent on a spring for its water
needs. The area was historically agricultural and the
high flows were applied to irrigation. The low flow was
sufficient to provide domestic water for a small cluster
of homes. As homes expanded into this area and
irrigation was abandoned, the high flow (about 10 cfs)
became a flood problem because there was no place to put
it; the low flows of August were not adequate to fill
the domestic needs of the increased number of homes in
the area. The system was taken over by the Salt Lake
County Water Conservancy District, which had a pipeline
system large enough to take the maximum flows and put
them to beneficial use. When the low flows developed,
the district had other sources of water--primarily wells
and surface storage--so that it could take care of the
needs. The spring yields 2,000 acre-feet a year. As a
part of a larger system, 2,000 acre-feet would take care
of the annual needs of nearly 8,000 people. By itself,
however, it could barely meet the needs of 53 homes, or
about 200 people.
In Salt Lake County there are three major suppliers of
water. One is the Salt Lake County Water Conservancy
District, which furnishes water on a wholesale basis to
many cities, districts, and water companies. Its
primary source of supply is wells. The other two
suppliers are interrelated--one is Salt Lake City and
the other is the Metropolitan Water District of Salt
Lake City. The city holds the primary rights to the
mountain streams and Metropolitan has a large amount of
water in storage in Deer Creek Reservoir. By statute,
it must make that storage water available to the city,
but by contract it sells its surplus to the conservancy
district. If each of these agencies were to use water
strictly in accordance with their individual rights,
there would be times in the year--e.g., the early spring
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runoff--when Salt Lake City could not use all of the
water accruing under the city's rights and flowing in
the mountain streams. The unused portion would flow
into Great Salt Lake unused. During this period the
streams meet the city's total needs, the streams
furnishing water to Deer Creek normally fill the
reservoir, and it spills. If at the same time the
conservancy district meets its total needs through the
pumping of its wells, underground storage is depleted.
By agreement Salt Lake City and the metropolitan
district sell water to the county district. They
provide aqueducts, treatment plants, and conveyance
facilities so that the surplus water can be used. The
price is about the cost of pumping the wells. They
collectively use the direct flow from streams; then if
the reservoir is full, they draw on it to a reasonable
extent, and none of them pump wells. This permits the
ground-water basin to recharge. The county district can
sharply reduce its total use from the underground and
thus also permit it to recharge. When they need it, all
three entities pump their wells; but they do so usually
from a fully recharged ground-water basin.
A similar conjunctive use was approved in Hewitt v.
Rincon Del Diablo Municipal Water District, 107 Cal.
App. 3rd 78, 165 Cal. Rptr. 545 Cal. Ct. App. lYbO).
In one sense, the large reclamation projects of the
Bureau can firm up local supplies. The Provo River,
which is a major source of water for the heavily
populated Wasatch Front area, including Salt Lake City,
might yield 1,500,000 acre-feet during a random wet
year, 1,000,000 acre-feet during an average year, and
only 500,000 acre-feet during a dry year. With Provo
River storage, the use can dependably approach the
average. However, to use all the Provo River water, a
supplemental supply is needed. The Bonneville Unit of
the Central Utah Project is developing that supply.
That project will make 99,000 acre-feet of new water
available from the random high flows of the Provo River
for use in the Salt Lake-Provo areas, and because the
project will also have large quantities of water in
carry-over storage from the Colorado River, it can firm
up the supply from the Provo River, if this is needed,
so that cities can dependably rely on whatever water the
river will yield. It is not planned to use the 99,000
acre-feet of new water every year. If we have a wet
year and the local streams can meet the needs, they will
be called upon to do so and the 99,000 acre-feet will
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all be held in storage. A 320,000 acre-feet reservoir
is being built for this purpose. It is backed up by
more than 1,000,000 acre-feet of new storage on Colorado
River tributaries. Then, in a dry year, 200,000 or
300,000 acre-feet may be withdrawn from storage.
Developing 99,000 acre-feet of new water, with storage
capacity to hold it over several years, has the effect
of firming up the local streams so that the dependable
new supply is more in the magnitude of 123,000
acre-feet, rather than the 99,000 acre-feet of new
municipal and industrial water. To make the system
function this way, however, we must have management of
the local supplies. The advantages of this type of
management are illustrated by the voluntary operation in
Salt Lake County, Utah, described above.
In 2 Kinney, Irrigation and Water Rights, (2d ea.,
1912), the rule is stated as follows:
S704. Appropriation for storage. Again, not
only may a valid appropriation of the water from a
natural stream be made for immediate use, but the
water may be saved up and stored in times of plenty
and thus saved for the ultimate purpose of using
the same in times of scarcity for irrigation, or
any other useful purpose.
5 Clark, Water and Water Rights (Robert E. Clark, ea.,
Allen Smith, Co., Indianapolis, Indiana, 1967) agrees
(see S408:3~:
The storage of water for future uses has long
been held to be a beneficial use. Without storage,
beneficial uses would be limited to short periods
of runoff during the year, and on many western
streams power could not be generated except at
irregular intervals.
In 1 Hutchins, Water Rights Law in the Nineteen
Western States (W. A. Hutchins, U.S. Government Mass
Publication No. 1206, 1971), it is stated:
Recognition of reservoir storage as one of the
chief features of water utilization appears in the
water rights jurisprudence throughout the West.
Storage is a means of conserving water, by
capturing it when plentiful and holding it back for
future use, as well as an implement in flood
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protection programs. Thus, with use of upstream
reservoirs, spring floodflows may not only be
prevented from inundating downstream lands, but may
be stored and made available for late-season use
when unregulated flows are low. And they may even
be carried over from so-called "wet" years to
mitigate the deficiencies of "dry" seasons.
(See also J. R. Long, Irrigation S276 (W. H.
Courtright, 2d ea., 1916), and 1 Well, Water Rights in
the Western States TO Dare 410 (3d ed.). The court
cases also support the propose talon that carry-over
storage is a beneficial use. See Edwards v. City of
Cheyenne, 19 Wyo. llO, 114 P.611 (1911~; VanTassel Real
Estate & Live Stock Co. v. City of Cheyenne, 54 P.2d 906
(Wyo. 1936~; A-B Cattle Go. v. United States, 589 P.2d
57 ( Colt,. 1979) Friends of the Earth v. Armstrong. 485
F.2d 1 (lOth Cir. 1973~; East Side Canal ~ Irr. Co. v.
United States, 76 F.Supp. 836 (Ct. C1.
339 U.S. 978 (1950~; city of-Frisco v. the Texas Water
Rights Commission, 579 S.W.2d 66 (Text Civ. App. 1979),
reh'g denied.
PREFERENTIAL USE
1948), cert. den.
The acquisition of water rights and the reservation of
that water for future municipal growth is generally
recognized in the law. For example, under S73-1-4, Utah
Code Anna. 1953, as amended, the state legislature has
provided for forfeiture where the water is appropriated
and then not put to beneficial use. This section
permits the state engineer to grant extensions of time,
but requires the applicant to show good cause as to why
he has not been using the water. It identifies
financial crises, industrial depression, operation of
legal proceedings, or unavoidable causes, and concludes
by saying, "the holding of a water right without use by
any municipality, metropolitan water districts or other
public agencies to meet the reasonable future
requirements of the public shall constitute reasonable
cause for such nonuse."
Texas law gives to cities a right to displace existing
uses for subsequently arising municipal needs. This is
an exception to the general rule in Texas that first in
time is first in right (see Tex. Rev. Civ. Stat. Art.
74-72~54~. This section provides that allotments of
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water for all purposes other than municipal or domestic
use "shall be granted subject to the right of any city
. . to make further appropriations of said water
thereafter without the necessity of condemnation or
paying therefor . . . ." We have found no Texas court
cases construing the statutes and are not aware of any
instance in which a Texas city has endeavored to invoke
this statute.
Prather v. Eisenmann, 261 N.W. 2nd 766 (Neb. 1978)
interpreted Nebraska's preference statute with regard to
the domestic use of ground water between private parties.
The matter is addressed in Water and Water Rights
volume 1, page 369, where the following observation is
made:
.
In this context a preference is a beneficial use
that receives a special, or higher, priority or
value than some other beneficial use. Not all
beneficial uses have equal value to the community.
This is the rule even in the prior-appropriation
states where first in time is ordinarily first in
legal right. The concept of preference was
recognized in the common law by separating
"artificial" or extraordinary uses from "natural"
or ordinary uses which were preferred because
essential to human survival. Domestic uses were
preferred to the extent of allowing a riparian
owner to reduce or deplete a streamflow for his
household uses despite injury to lower riparian
owners. In the Southwest a preference exists
through the pueblo right which preserves a superior
municipal claim for human uses even though prior
appropriators are injured by stream diversions.
Modern law separates preferences into three
general classes. First is a right or high priority
that may be exercised irrespective of all other
rights and in the exercise of which no compensation
is paid. This is sometimes called a true
preference. Secondly, there are preferred uses
defined by statute that are enforced by
condemnation; in these cases compensation must be
paid for taking another's water right. A third
type of preference is found in the administrative
discretion granted to public officials to choose
among different uses in granting applications for
permits to use water. A hierarchy of preferences
is often established by statute and the official
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must decide between superior and inferior
beneficial uses in granting or denying the
application. These statutes are not uniform in
ordering all of the preferences, but all of them
prefer domestic uses over other uses.
See also Jarvis v. State Land Dept., 106 Ariz. 506, 479
P.2d. 169 (1970), and statement in later case: "If it
is to the State's interest to prefer mining over
farming, then the Legislature is the appropriate body to
designate when and under what circumstances such
economic interest will prevail.'"
States having preferential statutes include Colorado,
California, Arizona, Oregon, South Dakota, Wyoming,
Idaho, and Utah.
INTERSTATE TRANSFERS
A dispute is currently pending between the State of
New Mexico and the City of E1 Paso, Texas, arising out
of an effort by E1 Paso to appropriate large quantities
of water from an underground basin in New Mexico. The
United States Supreme Court in Sporhase et al. v.
Nebraska, ex ref. Douglas, Attorney General, 458 U.S.
941, 73 L.Ed. 1254 (1982), had indicated that a
carefully drawn statute protecting the interests of the
state of origin in the event of water shortage might be
permissible, and New Mexico, after losing in the trial
court, attempted to draft such a statute. The trial
court's opinion (City of E1 Paso v. Revnolds 563
F.Supp. 379 (D.N.M. 1983)), holding that New Mexico's
embargo statute was unconstitutional, was appealed. The
Tenth Circuit remanded the case to the trial court for
"fresh consideration" in light of the amendments to the
New Mexico statutes. The district court's decision held
the New Mexico statute, which created a total ban on the
interstate exportation of water, created an
impermissible burden on interstate commerce. Subsequent
to the entry of the district court's decision, New
Mexico repealed New Mexico Statute Annotated S72-12-19
(1978) and enacted 72-12B-1, which established an
application procedure requiring consideration of several
factors by the state engineer when ruling on
applications for the withdrawal and transportation of
ground water from the state. The new statute (in
contrast to the outright ban on interstate
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transportation of water) provided that "under
appropriate conditions" the interstate transportation
and use of New Mexico's "public waters" are not in
conflict with the public welfare of the state's
citizens. In referring to "public waters," the statute
is not limited to ground water but would also encompass
surface water supplies. The statute requires any person
or entity desiring to export water from New Mexico to
apply for a permit from the state engineer to make the
withdrawal. The state engineer is required to publish
notice of the application. The statute stipulates that
the state engineer, prior to granting the permit, must
find that the withdrawal and transportation of water
outside of the state will not impair existing rights.
The state engineer must also find that the proposed
export is neither contrary to the water conservancy
policies of the state nor otherwise detrimental to the
public welfare of New Mexico's citizens.
In making his decision the state engineer shall
consider the following factors: (1) The supply of water
available to New Mexico; (2) water demands of New
Mexico; (3) whether there are water shortages within New
Mexico; (4) whether the water that is the subject of the
application could feasibly be transported to alleviate
water shortages in New Mexico (5) the supply and
sources of water available to the applicant in the state
where the applicant intends to use the water; and (6)
the demands placed on the applicant's supply in the
state where the applicant intends to use the water.
The statute also provides that by filing an
application to export New Mexico water, the applicant
submits to New Mexico law governing and regulating the
appropriation and use of water. The state engineer is
empowered to condition the granting of any such export
permit to ensure that water being exported will be used
in accordance with the rules and regulations imposed on
in-state users.
While the remand was pending before the district
court, the New Mexico legislature also enacted H.B. 12,
which placed a two-year moratorium on all pending and
future applications to appropriate ground water
hydrologically connected to the Rio Grande River below
Elephant Butte Reservoir. Judge Bratton issued an
opinion on August 3, 1984, in Civil No. 81-730 (D.N.M.)
addressing the constitutionality of the amended statute
and the two-year moratorium. The opinion is reported at
597 F.Supp. 694 (1984~. The court held that S72-12B-1
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was not facially unconstitutional when applied to
regulate ground-water exports generally, but that it was
unconstitutional when used to regulate the export of
ground water for domestic use and when used to regulate
the transfer of existing ground-water rights for use out
of state. He also held the two-year moratorium under
H.B. 12 to be facially unconstitutional. The critical
portion of S73-12B-1 provides that the state engineer
must find that the "use outside the state . . . is not
contrary to the conservation of water within the state
and is not otherwise detrimental to the public welfare
of the citizens of New Mexico" before he can approve an
application for the export of water. He must evaluate
the six factors identified above in making his findings.
The criteria stated above attempt to apply the
conservation and public welfare considerations
even-handedly at least as to new appropriations.
Notwithstanding this, E1 Paso argued that the
even-handedness is only superficial because these
criteria are meaningless to in-state uses of ground
water. New Mexico noted the case of Young ~ Norton v.
Hinderlider, 15 N.M. 666, 110 P 1045 (1910) regarding
the public interest or public welfare criterion and
argued that the public interest criterion is not
meaningless as applied to in-state uses. The court
rejected this argument and in doing so held that the
phrase "conservation of water within the state" referred
to the waters to be conserved and did not prohibit
exports. The court also rejected the argument that the
second criterion directed at protecting the public
welfare of New Mexico's citizens rendered that statute
· ~ ~ ~ ~ ~
unconstitutional. He noted that Sporhase (above)
permits a limited preference for the state's own
citizens. He held that the preference must be limited
to situations in which exercise would not place
unreasonable burdens on interstate commerce.
also noted that the state could not prefer its own
citizens merely to protect local economic interests. A
state could, however, prefer its own citizens in times
of shortage. The court also indicated that a state
might regulate exports to protect against future
shortages to a reasonable degree. The proximity in time
of a projected shortage, its certainty, its projected
severity, and the availability of alternative measures
were all factors to be considered in determining the
reasonableness of the regulation (see page 701 of the
. . ~
opinions.
r
The court
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E1 Paso also argued that the six factors to be applied
to evaluating applications applied only to the export of
water and were therefore facially discriminatory.
Again, the court rejected this argument and ruled that
the six factors (which relate to supply and demand in
New Mexico and the importing state) provide information
required by the state engineer to determine whether New
Mexico can constitutionally prefer its own citizens.
Although the six criteria did not make the section
facially unconstitutional, the court held that the use
of these criteria to regulate the export of ground water
for domestic (municipal) use and to regulate the
transfer of existing ground-water rights (but not when
making an in-state transfer) is unconstitutional (Id. at
703-704~. The court noted that the state engineer is
not permitted to consider the conservation or public
welfare criteria when acting on applications to
appropriate ground water for domestic in-state use, or
when acting on in-state transfer applications. The
court found no legitimate justification for the
distinction in application and consequently held the use
of the criteria unconstitutional.
The court held the two-year moratorium H.~. 12 to be
facially discriminatory. It applied only to two
specific aquifers in which the City of E1 Paso has filed
applications to export water. It concluded that the
only purpose of the moratorium was to prevent E1 Paso
from obtaining ground water in New Mexico and on that
basis they imposed unfairly on interstate commerce.
New Mexico argued that the statute did not violate the
commerce clause because it regulated even-handedly and
applied equally to in-state and export applications.
The court ruled, however, that even-handedness would not
validate an illegitimate purpose, which in this case was
a complete blockage of the interstate movement of
water. Further, even if the statute were not invalid
per se, the court held it would fail because it had not
been narrowly tailored to its stated purpose, which is a
requirement of Sporhase.
PUBLIC TRUST
In National Audubon Society v. Superior Court of
Alpine County, 33 Cal.3rd 419, 659 P.2d 709, 189 Cal.
Rptr. 346 (Cal. 1983), modified on denial of rehearing,
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the court held that the public trust doctrine must be
considered in the allocation of water resources.
CONCLUDING REMARKS
The best way to adjust to drought conditions is to
plan adequately in advance. Emphasis should be placed
on using direct flow waters, which can only be used as
nature makes them available. If they go unused, they
flow downstream and beyond the reach of the system.
These supplies should be used first. Surplus surface
supplies should be placed in storage with sufficient
capacity so that substantial quantities of water can be
carried over from wet cycles to be used during dry
cycles. Generally speaking, it is desirable to use
surface storage and to conserve ground-water storage.
Ground water is not subject to evaporation losses. In a
large ground basin, wells can be drilled near the point
of use, and there is generally a lag between shortages
in a surface system caused by drought and the adverse
impacts of the drought on ground water. That lag also
reappears during periods of recharge. The management of
water supplies is critical. If the normal supply
available is not adequate during a drought period, then
with a proper statutory unpinning, the authority can be
granted to cities, districts, private water companies,
and so on, to impose rationing and to conserve water.
Representative terms from entire chapter:
state engineer
