WATER RESOURCES BULLETINVOL. 30, NO.2 AMERICMI WATER RESOURCES ASSOCIATION APRIL 1994

REVISITING STATE WATER RIGHTS LAW'

Ray Jay Davis2

ABSTRACT: Water resources professionals should be engagedactively in revisiting state water rights law. During the past fouryears, sponsored by the American Society of Civil Engineers withcooperation of other water resources organizations, over a hundredengineers, hydrologists, geographers, lawyers, administrators, edu-cators, water users, and other persons interested in water law havebeen preparing a Model State Water Rights Code. Preliminarydrafts of the Model Code have been considered in four states, andits provisions will be disseminated nationally to state legislatorsand other policy makers upon formal publication in September1994. The Model Code gathers the best provisions from state waterlaws into comprehensive regulated riparian and prior appropriationprovisions, includes commentaries explaining how its textual sec-tions address water resources planning and management issues,and references similar language in current state water statutes.The goal of the Code Project is to provide materials which willassist legislathrs so they can enact effective, efficient, and equitablewater laws. In the future, the Code drafting group will expand itsefforts to develop legal guidelines for allocating shared transbound-ary water resources, water quality law, federal water statutes, andother water resources legal issues.(KEY TERMS: water law; model state code; legal guidelines; waterpolicy; decision making; water resources planning.)

INTRODUCTION

A journalistic approach on revisiting state waterrights law could consider: who, why, how, where, whatand when. Water resource professionals should seekto improve water laws because of the impact on theirwork. By preparing Model State Water Rights provi-sions and disseminating them widely, progress towardimprovements can be made. The model code containscomprehensive legal provisions, commentaries andreferences. 'When the code is completed other waterresource legal issues will be addressed.

WHO: WATER RESOURCES PROFESSIONALS

The work of water resources professionals is affect-ed by water rights law. Accordingly, it is understand-able that they should involve themselves in revisitingwater law. A project which now has been going on forfour years to consider water code improvements forstate consideration has been giving such an opportu-nity for this kind of professional involvement. Undersponsorship of the American Society of Civil Engi-neers (ASCE) with cooperation of other waterresources planning and management groups, theModel State Water Code Project is a forum for inte-gration of professional skills with water law visitationneeds.

Over 120 persons have in some manner participat-ed in the Code Project. Currently there are 94 on themailing list. They come from 31 states and the Dis-trict of Columbia. Colorado, with 12 participants, hasthe largest involvement, and Utah and Pennsylvaniawith seven each have the next most. Georgia, Texas,Virginia, Washington, and the District of Columbiaeach have four or five persons connected with the Pro-ject. Over half of the participants are engineers; nineof them are educators and the rest are almost evenlysplit between governmental personnel and privatefirm practitioners. About a fourth of the people associ-ated are lawyers; half have come from academia andthe rest are with private firms or employed by govern-ment agencies. The fourth who are neither lawyersnor engineers represent such disciplines as geogra-phy, meteorology, social sciences, and environmentalstudies. Of the government-connected Code Projectparticipants, 20 are employed by states, seven are

1Paper No. 94041 of the Water Resources Bulletin. Discussions are open until December 1, 1994.2Professor, J. Reuben Clark Law School, Brigham Young University, Provo, Utah 84602-8000.

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from the federal government, four are with local agen-cies, two are connected with international groups, andone is working as an Indian tribal attorney.

The water resources professionals who have takenpart in the Model Code Project have been associatedwith a wide variety of water resources organizations.They have kept these groups informed and in turnhave received encouragement from them. Organiza-tions of lawyers, environmental groups, engineeringsocieties, and other professional associations withwater resources interests have reviewed materials,made suggestions, and otherwise given input into thedrafting process. Their involvement has helped shapethe Model Code into a practical document, one whichcan receive serious legislative consideration andwhich can be administered efficiently to accomplishequitable and effective water resources allocation.This revisitation of water law is not intended to beutopian. Rather it is meant to make legal normsavailable for consideration by legislators, administra-tors, water users, and other stakeholder groups.Involvement in the process by professional organiza-tions has been of utmost importance in striving toreach that goal.

WHY: NEED TO REVISIT WATER LAW

American state water law is a combination of con-stitutional provisions, statutes, judicial decisions, andadministrative decisions and practices. It has beendeveloped in a piecemeal manner since the early1800s. Throughout its history, various groups andindividuals have revisited our water law and soughtto reform it or at least restate it. There have beenmodest to major changes in laws concerning rights,pollution, planning and management, institutions,and other matters of water law. They are part of theongoing process of evaluation and revision of variousaspects of state water law.

In the opinion of many persons, American statewater rights allocation laws can again use revisitationin order to repair them. The indictment of the presentsystem has several counts:

(1) It is not uniform among the states; each juris-diction is in many respect different from every otherone (Wright, 1990);

(2) It is not in harmony with hydrologic realities; itfails to integrate surface, underground, and atmo-spheric water law (Tarlock, 1988);

(3) It does not adequately promote either efficientuse of water or conservation (Getches, 1990);

(4) It cannot cope with serious droughts and watershortages (Howe et al, 1982);

(5) Provisions for changes of uses and reallocationof ownership of water are not adequately flexible(Anderson, 1991); and

(6) Regulation through a permit system is not ade-quately tied to jurisdiction-wide water use planning(Beck, 1991).

The motivation for revisiting state water rights law isto consider these and other concerns about the ade-quacy of the present law.

HOW: DRAYPING PROCESS

On issues of nation-wide concern, the AmericanSociety of Civil Engineers, acting through its Board ofDirection, issues policy statements, resolutions, andposition statements relating to subjects in which theengineering profession has interest (ASCE, 1992).Water resources law has been the subject of severalsuch statements. Among current water orientedASCE policy statements are those dealing with atmo-spheric water resources management, wetlands poli-cy, water conservation, ground water management,and emergency management planning by waterproviders (ASCE, 1993).

For over 20 years, ASCE has had a Water Re-sources Planning and Management Division whichamong its technical committees has several groupsthat consider the planning, institutional, and legalramifications of developing water resources. At its fall1989 meeting, the division executive committeeapproved a proposal from its Water Laws Committeeto create a Task Committee on the Model Water Codeto develop proposed legislation suitable for enactmentby states for administering water rights allocationand change. The task committee was formallylaunched in 1990 with a two-year mandate to preparedrafts of code texts and commentaries. That mandatewas renewed for an additional two-year period whichexpires September 30, 1994 (ASCE, 1992).

After the Model Code Project had been authorized,but prior to the time of its formal initiation, a group ofinterested engineers and lawyers met at Durango,Colorado, where they developed a preliminary state-ment of the scope of the Code and an outline for it.They decided that they would prepare a Code for stateconsideration and that federal law would be consid-ered only insofar as it intersected with and affectedstate law. They determined that water quantity wouldbe the focus of the Code, and that water quality wouldbe considered only to the extent necessary to carry outwater rights administration properly. The intentionwas to limit this part of the Model Water Code Projectto manageable size. It was understood from the outset

Revisiting State Water Rights Law

that the many other aspects of water resources regu-lation would have to wait for later consideration, thatthe allocation Code was only a first bite out of theproblem (Davis, 1993a).

Starting in October 1990, the task committee hasheld annual meetings four times and also four interimmeetings. These have been held to make decisionsabout the outline and content of the Model Code,establish timetables, and coordinate assignments.During each of the first three 12-month periods, fulldrafts of the document were prepared by committeemembers working on assigned topics. The drafts werecirculated widely for review and comment. The com-ments were considered at task committee meetings.Law school classes in water law at Brigham YoungUniversity (twice), Wayne State University, the Uni-versity of Texas, and Villanova University worked onthese drafts by writing papers, drafting provisions,putting together commentaries, and helping withcross-referencing (Davis, 1993a). A Model State WaterCode Workshop was held in July 1993 at which atten-dees closely examined Code provisions. The report ofthe workshop (Davis, 1993b) has been integrated intothe final draft preparation process.

With preparation of the final draft of the Code andpublication of the task committee final report inSeptember 1994, the first phase of the Code Projectwill be completed. In 1993, the Special StandardsDivision of ASCE approved creation of a Water Regu-latory Standards Committee to succeed the task com-mittee. Its first task will be to convert the chapters ofthe final version of the Model Code into formal Ameri-can National Standards Institute engineering stan-dards. That committee also will be involved in suchother water law projects as preparation of a modelinterstate water compact, model international wateragreements, and administrative regulations for useby state regulatory groups. It will follow the proce-dure of drafting, reviewing, and re-drafting materialsthat have been used by the task committee.

WHERE: DISSEMINATION

Wide dissemination of information about the ModelWater Code and copies of it will insure that the pro-ject will be beneficial to policy makers. The dissemi-nation phase of the Project has started during thedrafting process and will accelerate after completionof the task committee final report and conversionof Code chapters into standards. It targets waterresources professional groups and other stakeholdersand through them it seeks to reach legislative bodiesand other policy making bodies. In addition to circu-lating drafts to members of water resources organiza-

tions, task committee participants have made oralpresentations at meetings and written articles aboutthe Code. Among the groups that have been reachedin this matter have been the following:

• American Water Resources Association — onepaper was given during the summer of 1993 at theTucson, Arizona, meeting (Holub, 1993) and a sessionis being sponsored at the June 1994 symposium inJackson, Wyoming;

• American Water Works Association — a paperwas given at CONSERV'93 (Davis, 1993c);

• American Society of Civil Engineers — papersgiven at national conventions, division specialty con-ferences, and water forums;

• American Bar Association — papers given at sec-tion meetings and state bar association section meet-ings (Georgia, Hawaii, and Utah);

• Water Resources Research Centers — papersgiven to "Powell Consortium;"

• Weather Modification Association — presenta-tions at annual meetings;

• Chamber of Commerce;

• Association of American Geographers; and

• Association of American Law Schools.

In addition to meeting preprints and proceedings,there have been some other publications concerningthe Code. The Code Project is mentioned in the lead-ing treatise on water law (Beck, 1991). Articles noware place in the legal literature on designation andprotection of special water management areas (Peter-son, 1991) and on atmospheric water resources man-agement under the Code (Jones, 1991). An article isnow being prepared for the American Water WorksAssociation. And, of course this is the first of threearticles in this issue of the Water Resources Bulletin.

It has been through members of the task commit-tee and their contacts with legislators, legislative andadministrative staff members, and other interestedgroups that dissemination of the Code to legislativebodies has started. In Pennsylvania legislators andtheir staffs have contacted local persons working onthe Code Project and an interaction has followedamong them and other task committee members. Theprocess is continuing. In Georgia copies of the Codehave been distributed to executive and legislative offi-cials to acquaint them with the Code. At the Atlantanational convention of the American Society of Civil

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Engineers in October, many of these persons will beattending a panel discussion involving the code. Thethree task committee members from Hawaii arrangedfor copies of the Code to be passed along to membersof the Review Commission on the State Water Codeand to members of the Commission on Water Re-sources Management. Presentations to them havebeen made by the chair of the Code Project and alegislative presentation will be made in 1995. TheOklahoma members of the task committee have par-ticipated in the work of the water law review commis-sion in that state. Copies of the Code have beenprovided to those persons involved. It is anticipatedthat as other states face water or water law problemslocal persons associated with the Code Project will putthem in touch with those who have worked on theProject. The final report of the task committee andthe standards prepared as legislative guidelines bythe Water Regulatory Standards Committee will beavailable for that purpose. These materials will assistlegislators by giving them a head start on analysis ofwater resources planning and allocation legal issues.

WHAT: TEXT, COMMENTARIES, REFERENCES

The major product of the Model State Water RightsLaw Project will be the Code itself. The third draft isdivided into regulated riparian chapters for consider-ation in those eastern and Pacific states which havehistorically had either riparian or mixed water rightssystems, and into prior appropriation chapters for usein the western prior appropriation states. There areten chapters in each version. They constitute nearly300 numbered sections of text with commentary andreferences to each section. All told, there are approxi-mately 500 pages of material. The fourth draft, whichwill be the basis for the final report of the task com-mittee, will be of similar length (Task Committee,1993).

In addition to chapters on definitions and policystatements, each of the two groups of provisions havechapters dealing with such issues as waters subject toallocation, administration, establishing water rightsthrough permitting, scope of water use rights, statusof such rights over time, water supply augmentationand conservation, multijurisdictional provisions (areaof origin and interstate), and adoption provisions(Task Committee, 1993). This revisit of state waterlaw is comprehensive, within the parameters set inestablishing the scope of coverage.

It has been suggested that the commentaries whichfollow each section (and in some cases, each sub-

Davis

section) are more important than the textual provi-sions (Shabman, 1992). They explain the nature of theissue covered by the text, indicate what are the possi-ble legislative resolutions of the issue, and explainwhy the task committee selected the resolution itreached. This will assist state legislative bodies, theirstaffs and assistants, and state regulatory agencies tosee not only what a disinterested group of expertsbelieve are the issues and how they would treat them,but also will inform them of other reasonableapproaches that might be taken. Cross-references toexisting state legislation and to other relevant partsof the Code will further simplify their research. Theywill be able to have some perspective as they revisittheir own state water rights law.

In addition to legislators, other stakeholder groupsand professional bodies have an interest in water lawissues. Among them are the American WaterResources Association which has worked long andtirelessly for improving water legal systems. Thesegroups in their legislative interactions also can findthe Code helpful, even through they may arriveat dif-ferent resolutions for the problems which concernthem than does the Model Code. At least it gives thema point of reference from which they can evaluatetheir own legislative recommendations. The Code'scomprehensive textual provisions, commentaries, andreferences will help their work in adding to and shar-ing knowledge about water resources.

WHEN: FUTURE AND CONCLUSION

The Water Regulatory Standards Committee repre-sents the future of the Model Water Code Project. TheASCE task committee, whose mandate expires in thefall of 1994, will publish the state water allocationlaw as a part of its final report. The members of thestandards committee, for the most part, are the samepersons who have worked on the task committee.They are picking up where the task committee hasgone and are using the same approach to developother guidelines touching other aspects of waterresources law. As noted above, their first job is to con-vert the chapters of the Model Code into engineeringstandards and present them to the American Nation-al Standards Institute which in turn will convey themto the International Standards Organization. Amongthe other tasks for the standards committee arepreparation of materials concerning:

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Revisiting State Water Rights Law

• Shared transboundary water resources alloca-tion and quality

— Interstate compacts;— State-Indian tribal compacts; and— International water rights and quality agree-

ments;

• State water quality laws;

• Federal water laws;

• Water laws for other countries

— Formerly communist countries of easternEurope;

— Latin American countries; and— Under-developed countries.

The Water Regulatory Standards Committee has afive-year charter. Its authorization can be extendedindefinitely in five-year increments beyond that time.As long as it is productive, those extensions will begranted.

Water resources legal issues will always be with us.As circumstances and needs change, issues will alsochange. Revisiting state water law, as has been doneas part of the Model State Water Rights Project, is astep in the process. It is part of the ongoing dialogue.Any water resources professional who wishes to shareher or his expertise with persons working on the con-tinuation of the project is invited to contact ProfessorRay Jay Davis, J. Reuben Clark Law School, BrighamYoung University, Provo, Utah 84602-8000. He haschaired the Project to date. Those who have workedon the Project are open to all additional participationwe can get. The process of revisiting water law isexciting and will benefit water resources managementand development.

LiTERATURE CiTED

American Society of Civil Engineers, 1992. Policies and Priorities,ASCE, New York, New York, pp. 38-43

American Society of Civil Engineers, 1992. ASCE Official Register.ASCE, New York, New York, pp. 27-79.

Anderson, Owen, 1991. Reallocation. In: Waters and Water Rights,Robert Beck (Editor). Michie Co., Charlottesville, Virginia, 16.01et seq.

Beck, Robert, 1991. Planning. In: Waters and Water Rights, RobertBeck (Editor). Michie Co., Charlottesville, Virginia, 62.01.

Davis, Ray Jay, 1993a. The Once and Future ASCE Model WaterAllocation Law. In: Proceedings of Twentieth Anniversary Con-ference of Water Resources Planning and Management Division,Katherine Hon (Editor). ASCE, New York, New York, pp. 344-348.

Davis, Ray Jay, 1993b. Workshop Report: Model State Water CodeProject. Brigham Young University, Provo, Utah.

Davis, Ray Jay, 1993c. Legal Strategies in the ASCE Model WaterRights Allocation Code Implementing Water Conservation. In:Proceedings of CONSERV'93: The New Water Agenda. Ameri-can Water Works Association, Denver, Colorado, pp. 983-988.

Getches, David, 1990. Water Law in A Nutshell. West Publishing,St. Paul, Minnesota, pp. 124-13 1.

Holub, Hugh, 1993. Deliberating State Water Rights Law: TheModel Code Project. Given at American Water Resources Associ-ation Annual Conference, Tucson, Arizona, August 30, 1993.

Howe, Charles W., Paul K. Alexander, and Raphael J. Moses, 1982.The Performance of Appropriative Water Rights Systems in theWestern United States During Drought. Natural ResourcesJournal 22:379.

Jones, Gregory, 1991. Weather Modification: The ContinuingSearch for Rights and Liabilities. Brigham University LawReview 1991:1163.

Peterson, Susan, 1991. Designation and Protection of CriticalGroundwater Areas. Brigham Young University Law Review1991:1993.

Shabman, Leonard, 1992. What Should ASCE Model Water CodeCommittee Do? In: Water Resources Planning and Management:Saving A Threatened Resource — In Search of Solutions,Mohammad Karamouz (Editor). ASCE, New York, New York, p.237.

Tarlock, A. Dan, 1988. Law of Water Rights and Resources. ClarkBoardman Callaghan, Deerfield, Illinois, p. 2-2.

Task Committee on Model State Water Code, 1993. Model StateWater Rights Code [Regulated Riparian Chapters and PriorAppropriation Chapters] (Third Draft). Brigham Young Univer-sity, Provo, Utah.

Wright, Kenneth, 1990. Water Rights of the Fifty States and Tern-tories. American Water Works Association, Denver, Colorado.

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