struction and improvements, and types of control or aid.

2. Existing Laws.-a. State and Related Control. The State view is that control, appropriation, and use of waters within its boundaries is exclusively a State affair, constitutions or State laws usually declaring such waters to be State or public property on the grounds of State sovereignty. Most State codes provide a complete control for surface water resources by which rights to water are acquired, and its use administered.24 Generally, utilization of the flow in natural water courses is subject to State administrative control and subject to appropriation under State doctrine.

In the Great Plains area there is a great variation in State laws. Because of the well-recognized State police powers under accepted legal theory, Federal control does not extend to strictly intrastate waters, except for certain established purposes confirmed by law or long usage. Both the Supreme Court and the Congress have recognized State control, the former on the theory that all rights to water rest upon State sovereignty and law.25

b. Federal Control.-Federal control over waters of the country rests on the power of the Congress over navigable waters, the commerce power over interstate streams, flood control, the use of public lands, Indian lands and reservations, contracts with irrigation districts, treaty obligations and interstate compacts.26 The Congress has evidenced its intent to recognize water rights. acquired over public lands in accordance with local laws and customs.

3. Water Rights.-a. Rights as to the Use of Surface Water. One of the most important questions concerning Great Plains water rights arises from the conflict between the "riparian" and the "appropriation" doctrines. Under the "riparian" doctrine, each proprietor is en

titled to have the stream come to his land flowing naturally, undiminished in quantity and unimpaired in quality, each owner having an equal right to make reasonable use thereof. Under the "appropriation" doctrine, the individual or group that first makes a beneficial use of water thereby acquires a prior right to its continued use. This doctrine is well established in the States of Wyoming, Colorado, and New Mexico, but in the other States of the Great Plains Region, both doctrines prevail.

In States where both "riparian" and "appropriation" doctrines exist, there is necessarily some determination of the extent of riparian rights and of their requirements on stream flow, and some plan for limiting these rights where they might interfere with the water conservation program. If the proposed water conservation program changes the character of stream flow, or otherwise disturbs conditions under which rights have been perfected, the general nature of these rights must be considered and remedies imposed on material changes in conditions. A water conservation program must recognize that rights of appropriators are based on certain conditions which may not be disturbed without compensation for loss or inconvenience caused them.

b. Ground-water Rights. One of the complications in the development and efficient use of ground water in the Great Plains area, such as pumping for irrigation, is the lack of administrative control by States, with resultant uncertainty as to water rights.

New Mexico has the most comprehensive ground-water State control law, based on the appropriation doctrine as applied to waters having reasonably ascertainable boundaries.27 Other States either have inadequate or no statutes relating to ground-water utilization control, and the courts thereof have followed one of

several rules or doctrines. The common-law or English rule, based on an absolute ownership of water by the landowner with no obligation to respect the rights of others, is followed much more generally than the American rule of "reasonable use" embracing the doctrine of correlative rights as defined by the United States. Supreme Court.

Ground water is limited in amount, and control is needed for protecting existing rights by prevention of excessive development.28 In many areas excessive pumping withdrawals for irrigation, industrial, and public water supply have lowered the water table to a dangerous level and necessitated State control of water use in these areas. In actual and proposed irrigation, public supply, or industrial-use developments, adequate consideration seldom has been given to the safe yield of the underground reservoir. Adequate consideration of development control becomes increasingly desirable.

The former National Land-Use Planning Committee and the National Advisory and Legislative Committee on Land Use in March 1933, adopted a report on State legislation relating to the use of underground water embracing the following principles:

(1) Subject to rights of the Federal Government, declare all unappropriated underground waters to be public waters of the State, subject to appropriation for beneficial use;

(2) Protect individual vested rights to underground waters;

(3) Vest the State Engineer, or corresponding official or commission, with administration of the law;

(4) Provide for investigations of underground waters and for designation of administrative areas; (5) Protect holders of rights to underground water from excessive withdrawals;

(6) Provide for adjudication of rights to underground waters;

(7) Authorize the State administrative officials to require periodical reports from beneficiaries of the law;

(8) Provide for public supervision over installation of works;

(9) Provide for prevention of waste and contamination of underground water supplies.

The most effective method of control of ground-water use for the public benefit is believed to be under the doctrine of "appropriation", with the necessary control exercised by the State. The possible exception is for domestic use and stock water, which may be considered to be the universal use pertinent to the ownership of land.

4. Interstate Water Problems.—a. Surface Waters.The most dependable surface-water supply in the Great Plains area is from the main rivers having as their sources the melting snow of the Continental Divide. These are not always directly affected by drought conditions in the Plains area. There are large irrigated areas and potential irrigable areas in Montana, Wyoming, and Colorado, which are watered by such interstate streams as the Missouri, Platte, Arkansas, and their tributaries. Therefore, important interstate water problems exist in the Great Plains area which may exert some influence on ultimate area development, inasmuch as the Supreme Court recognizes a State's right to secure an injunction against another State which causes damages by interfering with and altering the natural drainage conditions on an interstate stream.29

Various ways of settling interstate water questions exist. One method is by a United States Supreme Court suit between the States. Under the Constitution the Supreme Court has judicial power in controversies between two or more States, and in cases involving diversion and use of interstate stream waters, it has original jurisdiction to investigate and decide.30 The Court has held that it will not exercise its

jurisdiction except where the seriousness is clearly proved.

Interstate water questions also may be settled by suit between private parties in the State or lower Federal Courts. These are of numerous types. Generally a Federal Court sitting in the State where water is diverted has jurisdiction to enjoin the diversion of water which injures property in another State. Likewise, under certain conditions the State Courts have assumed jurisdiction over rights and priorities on an interstate stream in another State.

Interstate compacts are also used to settle interstate water questions, and have been effective in some instances.

b. Ground Waters.-Important interstate problems concerning ground waters as well as surface streams exist in the Great Plains area. Location of water-bearing strata or artesian formations under parts of several States makes control more difficult. It must be accomplished either by uniform laws, agreement, or compact among the States involved. Uniform legislation is desirable to solve interstate ground-water problems, 31

5. Problems of Construction and Improvements.-A comprehensive conservation program must treat all phases of water utilization and require various types of construction and improvements.

a. Projects on Individual Farms.-There are check dams, ponds and reservoirs, involving either natural watercourses or surface waters. Where a natural watercourse exists its waters are public, and must be acquired by appropriation, subject to all prior rights, appropriation and riparian. If surface waters are involved, then different rights and liabilities govern under any one of three different rules applied to natural flow or drainage of surface waters and their obstruction. In the absence of law, a riparian owner may build a dam across a stream on his own land, but acquires no ownership or right to water thereby. He must not materially injure others on the stream. The 31 See Appendix 15.

owner of the land has a legal right to store water on his land in ponds and reservoirs, but without injury to others. Other legal problems arise from utilization of swamps, marshes, and wells for pumping ground water for domestic, stock, and irrigation purposes.

As to ponds, reservoirs, and small dams for water conservation, the State may purchase easements over private lands and authorize existing agencies to construct them. It thus appropriates money for a legal "public purpose", because the works are located on public lands. Instead of direct appropriations, the State could authorize irrigation districts, water control districts, or its other agencies to do likewise, such agencies regulating access to waters of adjacent landowners, individually or cooperatively.

b. Community Projects.-Among community projects may be large dams to check erosion, provide storage, and produce power for pumping or local uses; such dams must be located on natural water courses whose waters are subject to appropriation under State law. There may be also small irrigation systems from impounded surface waters or pumped underground water, with respect to which accurate determination of water supply and rights is most important. Small ponds for stock watering may be community projects. The legal problems may be solved best by establishing some district agency or organization to assume necessary authority for the construction, maintenance, and operation of these projects.

c. Projects of Municipalities, Irrigation, Conservancy, and other Districts: Municipal Water Supply. One of the problems of even a dominantly rural area relates to securing an adequate and pure municipal water supply, both from surface streams and underground sources. Many legal problems arise in connection with securing adequate water rights for municipal supply.

d. Stream Pollution.-Prevention of pollution results from activities or enforcement by State administrative agencies, such as a State Board of Health, a commission, or committee; or munic

ipal corporations, such as sanitary or sewerage districts; cities and counties; or under the nuisance or penal statutes. Both States and municipalities should seek the solution of such existing serious problems by construction of pollution abatement works. 32

e. Large Irrigation Projects.-Any great extension of irrigation involves storage and construction of more difficult and costly projects. Before undertaking these, careful determination should be made of available surplus water supply, based on a study of prior rights of riparian owners and appropriators. Determination of adequacy of water rights constitutes a major legal problem of large irrigation projects.

6. Types of Control or Aid: District Control.There are irrigation, reclamation, drainage, sanitary, conservancy and other similar districts organized as public corporations, although sometimes designated as municipal corporations. 33

(1) Delegation of Power.-A great variety of water utilization districts have been delegated broad powers. The legislature may grant such a corporation all the powers it is capable of receiving, and make it, to use the United States Supreme Court expression, a miniature State within its locality.34

(2) District Acts Delegating Broad Powers.-Certain district acts delegate to the district broad powers relative to multiple use of water.35 Thus the Texas law provides the following districts: Water Improvement; Water Control and Preservation; Water Control and Improvement; Fresh Water Supply; Levee Improvement, also known as Conservation and Reclamation; Drainage; and Navigation.

The following types of districts have been organized in two States which have delegated to them broad powers relative to multiple use of

water: Water Improvement Districts; Water Control and Improvement Districts; 36 and Conservancy Districts.3

It is very desirable to make an analysis of all forms of districts and powers exercised before final decision is made on the possibility of utilizing some form of district to execute a proposed program.

A State water utilization program should be centralized in a public corporation or district, preferably in each major drainage basin. Within its constitution, the State appears to possess unlimited power to delegate authority to such districts. Therefore they should embrace all functions necessary to execute fully the water program.

7. General. Lack of uniformity in statutes and decisions characterizes water law in the Plains area. Each State is sovereign so far as administration and control of its waters are concerned. The law of each is composed of constitutional and statutory provisions, and court decisions, sometimes embracing rules or legal doctrines at variance with those of other States. This lack of uniformity is a serious handicap to any program, and must be overcome by corrective legislation in the States, interstate compacts, or other action.

CONCLUSION

Any comprehensive program of conservation involves such readjustments in the uses of land and water, and such revision of customary farm practices, as to require vigorous implementation by legislation. Some elements of a program assume the use of public funds; some involve governmental administration; some must regulate the use of private lands. While the greater part of the required legislation may be permissive in nature, some small part of it must be mandatory. Implementation by legislation is clearly necessary.

In considering the most desirable execution of supporting legislative programs, the question arises whether all subjects should be embodied in one composite bill or in separate bills. While the Federal Constitution contains no such provision, State constitutions commonly require that acts be limited to a single subject. The decisions have interpreted this to mean: in each bill one central subject-matter and all provisions pertaining thereto, separate subject-matters requiring separate bills. If a legislative program requires under the State constitution a number of separate acts, then the interrelations of these acts should be carefully worked out to make them complementary and reinforcing.

public servants selected; their technical ability; the social viewpoint and sympathy with which they approach the problems involved; their administrative ability to obtain desirable results by pumping the warm blood of social accomplishment into the cold veins of the lawall these things proper administration alone provides.

Four basic facts stand out clearly from the foregoing analysis. They are the lack of law, the lack of uniform laws, inadequate laws or administration, and conflicts of jurisdiction. This means that new trails will have to be blazed, and adequate agencies established. Vision is needed. Above all, as Associate Justice Louis D. Brandeis has aptly said: "If we would guide by the light of reason, we must let our minds be bold." 38