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Show 68 GENERAL land. But if the waterway can be made navigable through reason- able improvements, then, of course, the Federal regulatory power over navigation can apply. In a situation such as this it is equally logical that a more inclusive test of navigability be applied by the courts of a particular State in order to bring the use of the same water (as distinguished from the bed and shorelands) within the reach of the State public trust. 5.2 Weather Modification Weather modification experiments have been conducted for a number of years, and have included a variety of efforts, including those aimed at dispersing fog at airports, reducing hailstorm dam- age to crops, and augmenting water supply through increased rain- fall on croplands and increased snowpack on watersheds. The technology employed varies, but one of the most common methods of inducing precipitation is by releasing silver iodide crystals into certain storm patterns. The state-of-the-art of the technology has not yet fully developed, and ongoing programs are still essentially experimental rather than operational, but there is some promise that annual precipitation can be increased by 10 percent or more in arid areas where water is in short supply. It is this potential that sustains the experimental programs and which makes precipitation modifi- cation worthy of note in this volume. For present purposes, three observations are pertinent. First, there is no body of law which is adequately responsive to solve the liability questions which arise when people claim they have been damaged from weather modification operations. Claims of damage may be realistic or rather bizarre. Some have arisen when cloud seeding operations have been associated with excessive rainfall that caused flood damage; others have been asserted from drouth stricken areas, contending that cloud seeding operations in other areas stole their water from the clouds before nature could deliver it to them. The first complaint would be a tort, the second a property claim. But rules of tort and property law were developed through judicial de- cisions which addressed fact situations wholly unlike those involved in weather modification operations. And so those rules simply pro- vide no adequate answers as to whether, or to what extent, there shall be liability for damages caused by weather modification. Nor has legislation yet provided satisfactory answers to the questions. But by the time weather modification programs become fully opera- tional, it can be expected that appropriate legislation will be enacted to control questions of liability, and that some fund, security, or in- surance program will be required to protect those who do sustain damage. The second observation has to do with institutional arrangements for regulating weather modification activities. Since the programs are primarily still experimental rather than operational, there is no sophisticated regulation of these activities. Several States have en- acted statutes which have created some form of regulation, whether by requiring licenses, registration, permits, or simply informational filings. The legislatures of a number of other States have con- |
