Water: Industrial Mineral - And Industrial Nuisance ? Introduction

Water occupies a dual role in our industrial society. It is the indispensable raw material, essential to life itself. It is equally an industrial nuisance, interfering with the production of industrial minerals, making construction difficult, flooding valuable land, and generally producing problems because it is in the wrong place at the critical time. The legal position of water as a nuisance, and the counter measures to be taken, have been well established procedures for determining the responsibility for damage caused by water, and the organization of drainage districts and flood control and levee districts have been legally tested many times. Thus there is rather adequate legal doctrine concerning water, the common enemy. But recently efforts have been made to regularize the position of water as a useful, industrial, commodity. Such laws are not new to the West, where the doctrine of appropriation for beneficial use is slowly becoming the water law. Elsewhere the University of Michigan has produced a "model" water law and efforts are being made to induce all of the states to use this law, or a slight variation of it, as the basis for legislation. There are many serious criticisms of the proposed "model"-law, and the writer strongly opposes many of the provisions. But the fact remains that water is, in itself, so useful and essential that laws have been, and will be, passed to insure the orderly development of our water resources and to prevent waste. The, most important aspect of these "water-use" laws is that, wise or unwise, the existing laws and the proposed laws have been "water oriented". "Water oriented" means that it has been tacitly assumed that the beneficial use of water, either surface water or ground water, is the overriding consideration.