CHAPTER II

ALLOCATION OF STREAMS FOR MUNICIPAL WATER SUPPLY

The need for allocation arises when two or more users compete for the same water or for the channel of a stream; two cities competing for the water of the same limited source illustrate the first, a municipal water supply competing with sewage disposal or mine drainage illustrates the second. Allocation, in such cases, fixes the water rights of a project, tends to reduce litigation, and aims to secure the greatest public benefit from the stream.

Allocation of the waters of intra-state streams

With respect to the methods of acquiring water rights the states may be roughly grouped as follows:

1. Water rights determined according to the principle of priority of appropriation to beneficial use, with or without the concurrent doctrine of riparian rights, the appropriation being either (a) controlled by an administrative authority, or (b) not so controlled.

2. The doctrine of riparian rights prevails to the exclusion of the principle of appropriation, the right to take and use natural waters being obtained either (a) through a grant by an administrative authority; (b) by special legislation in each case; or (c) by some other method. With especial reference to municipal water supply the present1 procedure in each state for initiating rights to develop and use the natural waters of that state is very briefly indicated in the table. A somewhat fuller discussion by groups of states having generally similar procedures, follows.

Since water laws and administrative procedures thereunder are undergoing continual development and change, these generalizations should be checked, in any particular case, by reference to the statutes, rules of procedure and court decisions. Copies of the first two can generally be had from the administrative authority. 1 April, 1925.

Outline of procedure in acquiring the right to develop a municipal water supply

The numbers in parenthesis following the state name, as Alabama (2, 2c), refer to the groups in which the state is further discussed. The letters A, B, P, U have the following significance: A, allocating authority controlling appropriation and use of water and acquisition of water rights; B, other authority whose approval is required, generally before construction (State Board of Health to be assumed in all cases); P, class of use having statutory preference (generally none except as indicated); U, control over underground waters.

Information under B, P and U makes no pretense of completeness

Albama (2, 2c). A.-none; B.-State Board of Health, before issuing bonds or incurring debt.

Arizona (1, 1a). A.-State Water Commissioner, Phoenix; P.-domestic and municipal, as between applications under consideration at the same time; U-waters "flowing in . . . definite underground channels" same as A. Arkansas (2, 2c). A.-none.

California (1, 1a). A.-Division of Water Rights, State Department of Public Works, Sacramento; B.-Division of Engineering and Irrigation, State Department of Public Works, Sacramento, for dams; P.-municipal supply for domestic use, regardless of priority; U.- -same as A. with respect to "subterranean streams flowing through known and definite channels."

Colorado (1, 1b). A.-none; file claim of appropriation with State Engineer, Denver; P.-domestic use in event of scarcity; city may condemn an appropriation for a lower use.

Connecticut (2, 2c). A.-none; B.-State Board of Civil Engineers, Hartford, for dams.

Delaware (2, 2b). A.-none; B.-special legislation necessary in each case to authorize taking surface waters; P.-water supply over disposal of sewage and industrial wastes; U.-State Board of Health only.

Florida (2, 2c). A.-none.

Georgia (2, 2c). A.-none.

Idaho (1, 1a). A-Department of Reclamation, Boise; P.-domestic, in event of scarcity, subject to compensation of prior appropriators; U.―same as A.

Illinois (2, 2c). A.-none; B.-Division of Waterways, Department of Public Works and Buildings, Springfield, for dams or to take water from any stream.

Indiana (2, 2c). A.-none.

Iowa (2, 2c). A.-none; B.-State Executive Council, Des Moines, for dams; U.-State Department of Health only.

Kansas (1, 1b). A.-none; the Kansas Water Commission, Topeka, was created under Chapter 172, laws of 1917, for apparent purpose, among others, of controlling appropriations, but is reported to be not functioning in this respect; B.-Public Utilities Commission with respect to issue of bonds by second and third class cities; water laws involved: State Irrigation Com

mission and Court of Industrial Relations, as well as State Board of Health also reported to have certain jurisdiction. P.-domestic, municipal, and railroad water supply; U.-county artesian well boards.

Kentucky (2, 2c). A.-none.

Louisiana (2, 2b). A.-none; B.-special legislation necessary in each case to authorize taking surface waters; U.-State Board of Health only. State owns most surface waters and beds thereof, and may sell to a city these underwater lands but "there shall never be any charge . . . . for the use of the waters of the State for municipal, agricultural or domestic purposes."

Maine (2, 2b). A.-none; B.-special legislation necessary in each case to authorize the construction of water works; the "great ponds" and lakes of more than 10 acres are owned by the State.

Maryland (2, 2b). A.-none; B.-special legislation necessary in each case for a municipality, but not for a private corporation; U.-same as A.

Massachusetts (2, 2b). A.-State Department of Public Health, Boston; B.-special legislation necessary in each case (see details, Group 2b); U.—same as A. and B.

Minnesota (2, 2c). A.-none; B.-State Board of Health should be notified before preparation of plans.

Montana (1, 1b). A.-none; B.-for surface waters file notice of appropriation with county clerk and recorder if stream has not been adjudicated; if adjudicated, supplemental decree required.

Nebraska (1, 1a). A.-Department of Public Works, Bureau of Irrigation, Power and Drainage, Lincoln, for surface waters; P.--domestic use in time of scarcity; U.—waste of artesian water prohibited.

Nevada (1, 1a). A.-State Engineer, Carson City; U.-same as A; waste of artesian water prohibited.

New Hampshire (2, 2c). A.-none.

New Jersey (2, 2a). A.-Board of Conservation and Development, Trenton; grants to private water companies made for limited periods, to municipalities for unlimited periods; state makes an annual charge per million gallons for water diverted; U.-same as A (see details, Group 2a).

New Mexico (1, 1a). A.-State Engineer, Santa Fe; U.-same as A.

New York (2, 2a). A.-Water Control Commission, Albany; U.-same as A. (see details, group 2a).

North Carolina (2, 2c). A.-none.

North Dakota (1, 1a). A.-State Engineer, Bismarck, for surface waters. Ohio (2, 2c). A.-none.

Oklahoma (1, 1a). A.-Commission of Drainage, Irrigation and Reclamation, Oklahoma City, or Board of Directors of conservancy district in which surface sources are situated; P.—domestic and municipal.

Oregon (1, la). A.-State Engineer, Salem, for surface waters; P.-domestic and municipal; water may be withdrawn from appropriation by State Engineer or by legislature and held for future use of municipalities.

Pennsylvania (2, 2a). A.-private water companies chartered, bought, sold or consolidated since April 13, 1905, and those which have accepted certain legislation and surrendered rights of eminent domain, also companies which lack such rights, must have approval of the Water and Power Resources Board, Department of Forests and Waters, Harrisburg, to condemn or to divert; all municipalities and all private water companies must have the Board's permit before building or altering a dam.

Tennessee (2, 2c). A.-none specifically charged with this duty; B.— Quarterly County Court exercises control over waters within the county which are navigable in law or in fact and has power to make an allocation; blanket authority to take any necessary waters is also obtained through special legislation.

Texas (1, 1a). A.-Board of Water Engineers, Austin; U.-artesian wells, as to use, waste, reports, etc., by Board of Water Engineers.

Utah (1, 1a). A.-State Engineer, Salt Lake City.

Washington (1, 1a). A.-Supervisor of Hydraulics, Department of Conservation and Development, Olympia; P.-in condemnation proceedings the court determines which use will be for the greatest public benefit, and an inferior use may be condemned for a superior use; U.-artesian wells, as to use and waste, by Supervisor of Hydraulics.

West Virginia (2, 2c). A.—none; P.-State Department of Health has no control over coal mine drainage and manufacturing wastes.

Wisconsin (2, 2c). A.-none; B.-State Railroad Commission, Madison, with reference to such diversion as would interfere with navigation and other public rights in navigable streams or lakes; U.-State Board of Health only. Wyoming (1, 1a). A.-State Engineer, Cheyenne; P.-domestic, municipal and railroad use; U.-well defined streams, same as A; percolating waters (ordinary wells) not under state control.

Discussion by groups of states

The following discussion by groups of states is necessarily generalized. Details with respect to any state will be found in the circulars of information and the rules and regulations issued by the administrative authority, if any, and in the statutes.

Group 1. Priority of appropriation to beneficial use the guiding principle. The principle of priority of appropriation to beneficial use as the basis of water rights, complicated in some cases by the recognition of coexistent, but generally more or less limited, riparian rights, prevails in the 17 states lying west of but not bordering on