| OCR Text |
Show and it probably is true that big game license fees underwrite part of the cost of managing the fishery resource. By analogy, it might be said that water- use fees could be implemented at rates that would provide a surplus to underwrite other functions of state government. In short, the question is an open question that would, again, have to be answered by the supreme court for each State having a constitutional provision declaring that unappropriated water is owned by the public. C. Hydrostatic Pressure Groundwater basins pose a separate problem with respect to hydrostatic pressure. As a general rule, an appropriation water right includes a right to the established means of diversion as well as to the amount of water actually diverted for beneficial use. With underground water rights, the pertinent question is whether the hydrostatic pressure in existence at the time that a particular right was acquired becomes a part of that right in that it is an essential feature of the means of diversion employed to obtain the water. In other words, in some underground basins the early appropriators received sufficient water by artesian pressure, or were required to pump from very shallow depths. As more appropriators withdraw water from the basin, the hydrostatic pressure lowered, and greater pump lifts were required. This has created serious problems in determining whether the early appropriators can enjoin the later appropriators from any further withdrawal of the water from the basin, or whether they are entitled to compensation in an amount that will cover their increased cost of pumping from the greater depths. The problem is aggravated, from a standpoint of efficiency of use, by higher- valued uses that can afford to pay higher pumping costs. Thus, if irrigation users acquired the early rights in an underground basin, but had not fully appropriated the water within the basin, it would be possible for industrial or municipal users to establish later rights because they would be able to sustain the cost of pumping from greater depths. If there is no protection with respect to the means of diversion ( hydrostatic pressure), municipal and industrial users could thus drill new wells and pump water from a depth of, say, 1,000 feet, whereas irrigators could not afford such pumping costs. The water might still be in the basin for the irrigators, but at a depth which, to them, is too costly to obtain. Do they have a legal remedy? This question is still an open question in most States. In Utah, for example, the Supreme Court has held, with respect to changes in existing underground water rights, that a user does not have an absolute guarantee to hydrostatic pressure, but must suffer some reasonable reduction in that pressure in order to assure maximum beneficial development of the underground basin; and indicated that each user must comply with this standard as a means of employing a reasonably efficient means of diversion ( Wayman v. Murray City, 23 U. 2d 97, 458, P. 2d 861 ( 1969)). With respect to a state system of charging water- use fees, it will be necessary to determine whether such fees for water withdrawn will have to be scaled to amounts sufficient to compensate prior users for increased pumping costs made necessary by reduced hydrostatic pressure, resulting from additional water withdrawn by the State for delivery under the water- use fee program. Again, this answer must come from the supreme court of each State that considers implementing a system of water- use fees. V. Conclusion Since this paper is designed as a general overview of the major legal implications that will arise from any system to impose water- use fees in appropriation States, the conclusions are tentative. While further legal research could refine the nature of the problems, and forecast with greater accuracy the probable resolution of the constitutional questions, it is likely that definitive answers to the problems set forth above can only be supplied by the supreme court of the particular State that desires to draft legislation to implement a program to charge water- use fees. When that time arises, then careful legal research would be necessary to assess the problems in light of the statutes and decisional law of the particular State. |
