Dunning, Harrison C.

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Toward Optimal Utilization of Water Resources: The “Physical Solution

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University of Colorado Law School Colorado Law Scholarly Commons Western Water: Expanding Uses/Finite Supplies (Summer Conference, June 2-4) 1986 6-3-1986 Toward Optimal Utilization of Water Resources: The “Physical Solution" Harrison C. Dunning Follow this and additional works at: https://scholar.law.colorado.edu/western-water-expanding-uses-finite-supplies  Part of the Administrative Law Commons, Agriculture Law Commons, Contracts Commons, Environmental Law Commons, Finance and Financial Management Commons, Hydrology Commons, Jurisdiction Commons, Law and Economics Commons, Legal History Commons, Marketing Commons, Natural Resource Economics Commons, Natural Resources and Conservation Commons, Natural Resources Law Commons, Natural Resources Management and Policy Commons, Property Law and Real Estate Commons, Public Policy Commons, State and Local Government Law Commons, Technology and Innovation Commons, Urban Studies and Planning Commons, Water Law Commons, and the Water Resource Management Commons Citation Information Dunning, Harrison C., "Toward Optimal Utilization of Water Resources: The “Physical Solution"" (1986). Western Water: Expanding Uses/Finite Supplies (Summer Conference, June 2-4). https://scholar.law.colorado.edu/western-water-expanding-uses-finite-supplies/11 Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.     Harrison C. Dunning, Toward Optimal Utilization of Water Resources: The “Physical Solution,” in WESTERN WATER: EXPANDING USES/FINITE SUPPLIES (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law 1986).  Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.  TOWARD OPTIMAL UTILIZATION OF WATER RESOURCESThe "Physical Solution"Harrison C. DunningProfessor of LawUniversity of California, DavisWestern Water: Expanding Uses/Finite SuppliesA Short Course Sponsored by theNatural Resources Law CenterUniversity of Colorado School of LawJune 2-4, 19861—•rI. INTRODUCTIONA. One way to protect established water rightswhile increasing efficiency of water use is tomandate modification of a senior's operation ina way which provides a water supply for thesenior, aids juniors and imposes the expense ofthe change on the latter. This approach, knownin California as the "physical solution," hasbeen recognized in several western states.Currently Colorado seems to be the most activein seeking better utilization of water resourcesin this way. As the pace of water projectconstruction slows and as competition for scarcewater supplies intensifies throughout the West,physical solutions are likely to becomeincreasingly important.B. Examples of physical solutions1. A downstream senior has the right to divertsurface flow. An upstream junior deprivesthe senior of this flow. Instead ofrestoring the stream flow, the juniorprovides the senior with an equivalentamount of water from wells the juniordrills in the senior's service area.2. A downstream senior has the right to pumpgroundwater. An impoundment and exportproject by an upstream junior cuts replen-ishment water off from the aquifer fromwhich the senior pumps. Instead ofrestoring replenishment water, the juniorinstalls a surface delivery system whichdelivers to the senior water equivalent towhat the senior had pumped.3.	 An upstream senior irrigation districtdistributes water through a leaky system ofunlined ditches. Twenty-five percent ofthe water escapes to a saline groundwaterbasin and seventy-five percent of the wateris applied to the fields. A downstreamjunior pays for the lining of thedistrict's ditches. The senior thereafterreduces its distribution of water bytwenty-five percent and the junior uses thenewly available water.C. Main difference between an "exchange" or"transfer" and a "physical solution": theformer is always consensual, whereas the lattermay be compelled by law.D. Reference Source1.	 Dunning, "The 'Physical Solution' inWestern Water Law," 57 U. Colo. L. Rev. 201(1986).2r	 II. STATEMENT OF THE PROBLEMA. Tension has long existed in prior appropriationdoctrine between the protection of establishedwater rights and the optimal utilization ofwater resources.1.		 "So long as there is but a singleappropriator of water on a stream itmatters not how imperfect or wasteful maybe the means by which he diverts . . . .But when subsequent appropriators divertthe entire surplus at points above him heis required to use all reasonable diligenceto husband what is left . . . ." Natoma r	 Water & Mining Co. v. Hancock, 101 Cal. 42,50-51, 35 P. 334, 337 (1894).B. The classical resolution of this tension is tolimit appropriative water rights to beneficialuse. Inefficient uses of water are thus deniedlegal protection as appropriations, water isavailable for appropriators who can makebeneficial use of it, and in principle optimalutilization is achieved.1.		 In California, the waste of water is alsoprohibited by constitutional provisions.Cal. Cost. Art. X, Section 2.r	 2. Generally, courts seem to deny protectiononly where water is not used at all orwhere the most egregious of wasteful waterpractices are followed. Aware of the maxim"use it or lose it" and wishing to avoidforfeiture for nonuse, appropriators mayengage in water utilization less efficientand more wasteful than otherwise would bethe case in order to maintain their rightsat the highest possible levels. Thus thebeneficial use requirement of priorappropriation doctrine may paradoxicallypromote the waste of water.a.	 Williams, "The Requirement ofBeneficial Use as a Cause of Waste inWater Resources Development," 23 Nat. Resources J. 7 (1983); Pring & Tomb,"License to Waste: Legal Barriers toConservation and Efficient Use ofWater in the West," 25 Rocky Mtn. Min.L. Inst. 25-1 (1979).3.	 An alternative to denial of protection isthe physical solution, which places theprincipal cost of accommodation on juniors.A physical solution allows a court to avoidthe harshness of denying protection to anappropriator's established pattern of wateruse while providing for some progresstoward greater efficiency in the use ofwater.III. EXAMPLES OF DENIAL CASESA.	 Importance for physical solution doctrine1. By suggesting the location of the linebetween unprotected "wasteful" or"nonbeneficial" water use practices andprotected "beneficial" uses of water,denial cases indicate the broad scope forphysical solutions.2. By demonstrating how valuable uses of waterare sometimes unprotected, denial cases mayindicate the sort of unmitigated changewhich may be demanded of a senior as partof a physical solution.B.	 Surface water diversions: the water wheel cases1. Importance of water wheels in thenineteenth century mill economy.2. The U.S. Supreme Court's water wheeldecision: Schodde v. Twin Falls WatekCompany, 224 U.S. 107 (1912).a. Downstream dam backed up water anddestroyed current which had turned aseries of upstream water wheels.b. Although apparently it believed areasonable means of diversion shouldbe protected as part of anappropriative right, the Court inSchodde held appropriation of thecurrent as incidental to appropriationof the water for irrigation and miningmust be denied. The claim was deemed"vast" in relation to the "meager"beneficial enjoyment. It at 118.C.	 Other surface water applications1. Use of natural overflow.2. Conventional surface water diversionunprotected where groundwater protectionpossible?a. See In_se_lualsasndSgaglatjsuaCdalanialdle—Ung-Santrias-Andprotection of Water Rights for BothBurface and Underground Water Locatedin the Rio Grande and Conejos RiverBasins and Their asibutallez, 674 P.2d914 (Colo. 1984) ("Alamosa-La Jara");White, "The Water Wheel GoesUnderground," WNRL Commentary 25(Summer 1984) (Alamosa-La Jaraconclusion a "long anticipated nextstep" in applying Bchodde).6D.	 Groundwater applications1.	 Issue regarding protection of artesianpressure and shallow pumping depths.a. Variation in results.b. Trend to limit protection -- to movefrom protection of an historic pumpinglift to protection of only a"reasonable" pumping lift.c. Utah case law is illustrative; cf. Current Creek Trrigation Co. v. Andrews, 344 P.2d 528 (1959)(recognition of a right of static headpressure) with Wayman v. Murray CityCorp., 458 P.2d 861 (1969).E.	 Means of distribution or pattern of use1.	 Judicial treatment of conveyance loss.a. Typically allowance is made forconsiderable loss of carriage water.Barrows v. Fox, 32 P. 811 (1893).b. Construction of distribution systemsin the most scientific manner isnormally not required, provideddistribution is in accordance withcommunity customs Tulare TrrigationDistrict V. Lindsay-Strathmore Irrigation District, 45 P.2d 972, 997(1935); Dut see Cllenn Dale Ranches., Inc. v Shaub, 494 P.2d 1029, 1032(1972); Erickson v. Oueen Valley RanchCo., 99 Cal. Rptr. 446 (1971); CAL.WATER CODE S 100.5 (West 1985 Supp.).2.	 Judicial treatment of water application.a. Normally, courts do not denyprotection to established patterns ofwater application.b. Occasionally, an unusual use isunprotected, Tulare irrigationpistrict v.  Lindsay-5tkatbmorsIrrigation District, 45 P.2d 972(extermination of gophers), orirrigators are required to improveapplication efficiency	 Hardy v. Beaver County Irrigation Co., 234 Pac.524. 529 (1924) (seniors must "preparetheir land, by leveling or otherwise,[so] that it may be irrigated withreasonable economy in the use ofwater").c. "Duty of water" limitations are not asignificant check on water applica-tion. They are set on the high side,and the courts are not vigorous inimplementation.F.	 Conclusions from the denial cases1. The rules on beneficial use/waste areframed in a way unlikely to discouragewaste. They assume an "either/or"situation: either water is wasted and anyright to it is forfeited, or water is usedbeneficially and the right is fullyprotected.2. In reality, usually a spectrum ofpossibilities for the use of water exists.Increased efficiency can normally beobtained if funds are invested in newfacilities or in new methods of watermanagement. Courts are reluctant to compelsuch investment except in cases of"egregious" waste, e.g. in cases in which aonce-common method of water diversion,distribution or application now seemsobsolete. This general conclusion isequally true in California, despite theconstitutional status of the anti-wastepolicy.a.	 For the most demanding application ofthe California constitutionalprovision to date, see people v. Forni, 54 Cal. App. 3d 743 (1976).3.	 In these circumstances, not muchimprovement in water use efficiency can beexpected merely from application of ruleson beneficial use. More promising arerules on physical solutions and attempts toincrease water marketing.a. Water marketing is receiving greatattention throughout the West today.Nonetheless, significant difficultiesexist for widespread water marketing.b. Physical solutions today are receivingless attention than water marketing.But the physical solution, wellestablished in the water law doctrineof several western states, cancontribute significantly to improvedwater use efficiency.IV. THEORY OF THE PHYSICAL SOLUTIONA.	 Equity as a basis1.	 Although a senior appropriator ordinarilyis entitled to injunctive relief againstinterference with the senior's water right,if the junior who interferes can make goodto the senior the amount of water lost then"the judgment, in common equity, should10provide accordingly." Montecito valitywats_n&passity of Santa Barbara, 77 P.1113, 1118 (1904); cf. Bower v. Moorman,147 P. 496, 503 (1915).2.	 Equity courts are not limited tosuggestions for physical solutions whichcome from the parties Tulare IrrigationDistrict v. LindsAy-Strathmore IrrigationDistrict, 45 P.2d 972, 1010 (1935).B.	 Necessity and the policy of optimal utilizationas a basis1. Salt Lake City v. Gardner, 114 P. 147, 152(1911) links physical solutions to theauthority of private persons to condemnproperty needed for water resourcesdevelopment. That authority in turn wassaid by courts to be rooted in the"absolute necessities" of the arid regions.Nash v. Clark, 75 P. 371, 373 (1904), Aff'd 198 U.S. 361 (1905).2. Public policy, which presumably resultsfrom these same arid region necessities, ismentioned as the basis for physicalsolutions in Arizona, Pima Farms Co. v..Procter, 245 P. 369, 374 (1926), and in theCalifornia cases applying that state's11constitutional provisions. Seeparticularly City of Lodi v. East BayMunicipa l Utility District, 60 P.2d 439,450 (1936), which states a trial court must impose any available physical solution.3.	 Several Colorado decisions approve of thephysical solution without making referenceto the policy of optimal utilization.Joseph W. Bowles Reservoir Co v. Bennett,18 P.2d 313, 315-6 (1932); City of Colorado Springs v. Bender, 366 P.2d 552, 556(1961) ; In_the_lattex_gt_Biata_ andRegulations Governing the Use. Control. andProtection of Water Rights for Roth Surfaceand Underground Water Logated in the RiQGrande and Conejos River Basins and TheirTributaries, 674 P.2d 914, 935 (1984).a.	 Today these decisions are bestunderstood as reflective of the policyof "maximum utilization" announced inPellhauer v. People, 447 P.2d 986, 994(1968), which has since been refinedto a policy of "optimal" utilization.COLO. REV. STAT. 37-92-501(2)(e)(1974); In the_Matter of Rules and Regulations Governing_thp_pse, 12Control. and Protection of Water Eights for Both Surface and Underground water Located in the RioGrande and Conejos River Basins andTheir Tributaries, 674 P.2d 914, 935(1984).V. STATUTORY EXPRESSIONS OF PHYSICAL SOLUTION DOCTRINEA. In limited situations, Utah provides juniorappropriators of groundwater with a "right ofreplacement." UTAH CODE ANN. S 73-3-23 (1980).1.	 Perhaps because the Utah statute applieswhen quantity and quality of appropriatedgroundwater are affected, but not whenartesian pressure or pumping lift areaffected, the statutory provisions havebeen mentioned infrequently and seem tohave had little impact.B. Colorado's statutory provisions on physicalsolutions arose in part from its efforts in 1969to apply prior appropriation principles totributary groundwater.1.	 In order to integrate surface water andgroundwater rights, Colorado provided for"plans for augmentation." COLO. REV. STAT.S 37-92-302(5) (1973). The plans arebroadly defined, COLO. REV. STAT. S 37-92-13103(9) (1973 and Supp. 1986), but theyinclude as one possible element a physicalsolution. Augmentation can come from"substitute supplies" of water, id., andsubstituted water "shall be accepted by thesenior appropriator . . . for water derivedby the exercise of his decreed rights."COLO. REV. STAT. 37-92-305(5) (1973).2.	 Colorado also has authorized its stateengineer to permit out-of-priority,upstream storage of water, provided thestored water can be promptly supplied todownstream storage appropriators with aninsufficient water supply. COLO. REV.STAT. 37-80-120 (1973). This authorityconstitutes a second statutory basis forphysical solutions. It is procedurallysimpler than a plan for augmentation, andit serves as the basis for Colorado'slargest physical solution to date.a.	 On an annual basis over 2,000 wellowners in GASP (GroundwaterAppropriators of the South Platte)furnish replacement water todownstream seniors when the latterhave a short supply.14C. Wyoming has modified its "exchange" statutes ina way that includes nonconsensual as well asconsensual exchange. WYO. STAT. 41-5 (1977).The former, which contemplates "the use ofstored, direct flow, or groundwater from anothersource," ids, amounts to a physical solution.D. Arizona and New Mexico have mine-dewateringlegislation which includes provisions for aphysical solution. ARIZ. REV. STAT. ANN. S 45-513(C)(2) (Supp. 1985-1986); N.M. STAT. ANN. 72-12A-4 (Repl. Vol. 1985).VI. SOME PHYSICAL SOLUTION ISSUESA.	 Hydrological and legal uncertainty1.	 Need for flexibility in the design ofphysical solutionsa. The physical solution as a continuingobligation on the part of juniors.b. Content of the obligation changes asnotions of what a senior mayreasonably expect change; continuingrelevance of the standard for "denial"of protection to an established use ofwater resources.B.	 Complexity of administration1.	 Difficulty of accounting for changes indelivery obligations and administering15water delivery in accordance with thecorrect rules.C.	 Need for an adequate statutory foundationVII. EXAMPLE OF AN IMPORTANT POTENTIAL PHYSICAL SOLUTIONA.	 The Imperial Valley situation1. What if the "exchange" negotiations fail?2. Relevance of physical solution doctrineVIII. CONCLUSION16

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Toward Optimal Utilization of Water Resources: The “Physical Solution

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