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< | Prior Appropriation: a Suitable Doctrine for the Changing West? | >
> | Prior Appropriation in an Uncertain West
Water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of human rights. - The United Nations | | | Introduction | |
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< | The current system of water rights in the western states developed to meet the needs of the frontier. Instead of employing traditional riparian rights, most Western states adopted the doctrine of prior appropriation, which encouraged mining, farming and small urban development in an arid land. But with the West's population explosion in the past hundred years, and water levels expected to drastically decrease in the future, can this old doctrine continue to promote the human values closely associated with water? | >
> | Water plays an especially crucial role in the development and sustainability of human life and industry in arid lands. Successful exploitation of limited water resources can enable life to thrive in dry conditions, but also exposes desert civilizations to potentially insurmountable problems if they fail to create sustainable mechanisms for its allocation. Despite severe droughts in the 1930s and 1950s, America has successfully developed its western desert over the past 150 years, using a flexible legal framework to meet the changing needs of the region. As the planet warms and traditional water sources become less predictable, however, states and the federal government must rethink current ownership and property notions to ensure continued access to water. | | | | |
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< | Scientific Background
In 1900, the population of the eleven continental western states was about 4 million, but by 2000 it had grown to over 64 million, and will undoubtedly continue to increase. Due to the expected effects of climate change, however, scientists predict that water levels will shrink by at least 20%. Water sources will also change substantially, as mountain runoff, the traditional source of water, decreases and rains increase. Additionally, tree ring studies have shown that the region has suffered long droughts that have had cataclysmic effects on the inhabitants, suggesting that water levels are unpredictable. Thus, the West is entering the 21st century in a precarious position: an exploding population living in an environment with decreasing water levels that is prone to droughts. | >
> | Development of Western Water Rights
Water rights in the western states developed to meet the needs of the frontier. Instead of employing traditional riparian rights, most western states adopted the doctrine of prior appropriation, which encouraged mining, farming and small urban development. The doctrine has subsequently evolved from the rigid formality of “first in time is first in line” to a background system of infrequently enforced rules recognizing special rights for cities, mining and fishing. Furthermore, federal environmental laws subjugate state water rights, partially displacing the prior appropriation claims founded upon them. The current system thus features a patchwork of competing interests of varying sizes who claim rights under a convoluted system of common law, federal regulation, and state statutes. | | | | |
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< | Problems of Prior Appropriation
In order to promote the activities that built the region, most western states adopted prior appropriation. Instead of granting water rights to landowners with property adjacent to the water source, prior appropriation gives a property right to the first entity to make beneficial use of the water. As long as that appropriator continues to use the water in the same way, he is entitled to that amount of water regardless of the effects it has on other users. There are no absolute rights to a volume of water, only rights to a certain amount of water for a specific use, so an appropriator cannot change his use of water without risking losing his rights.
This doctrine leads to a number of serious problems that will impede the West's ability to adapt its water use to meet the challenge it faces. Most importantly, it inhibits efficiency by allocating water rights based on seniority instead of need. Although water markets have emerged in the region, they favor entities who can afford the water, not those that need them most. Additionally, because a reduction in use leads to a loss of rights, there is a perverse incentive for appropriators to keep using excessive amounts of water rather than invest in technology that would decrease their need. | >
> | Impending Scarcity
In 1900, the population of the eleven continental western states was about 4 million, but by 2000 it had grown to over 64 million, and will undoubtedly continue to increase. Due to the expected effects of climate change, however, scientists predict that water levels will shrink by [[http://www.nytimes.com/2008/05/28/science/earth/28climate.html?_r=4&oref=slogin
][at least 20%]]. Water sources will also change substantially, as mountain runoff, the traditional source of water, decreases and rains increase. Furthermore, tree ring studies have shown that the region has suffered long droughts that have had cataclysmic effects on the inhabitants, suggesting that water levels are unpredictable. Thus, the West is entering the 21st century in a precarious position: an exploding population lives in an environment with decreasing water levels that is prone to devastating droughts. | | | | |
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> | Possible Solutions | | | | |
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< | Explaining Water Rights Through Theories of Property
Three of the major theories of property law all contributed to the adoption of prior appropriation by western states. Now that water is becoming more scarce, however, tension is developing between Lockean labor values on one hand, and utilitarian and human values on the other. | >
> | Allow prior appropriation to continue evolving | | | | |
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< | Then
The 19th century West was a land in need of domestication, but was more arid than the East. Prior appropriation promoted a utilitarian use of the land by providing incentives to make the best use of water. Instead of requiring agriculture to congregate near existing water sources, prior appropriation permitted farmers to bring water to the most fertile land. The doctrine also allowed individuals to enjoy the fruits of their labor by protecting the rights to water that they brought to their land. Finally, because the use of water was so strongly connected with the individuals and industries that developed the West, prior appropriation served human values. | >
> | One solution would be to allow prior appropriation to remain as the underlying doctrine, while using statutes to strictly limit the beneficial uses allowed by the doctrine. Currently, beneficial use "is a fairly elastic concept that freezes old customs, allows users flexibility in the amount and method of use, and leaves line drawing to the courts." Some legislatures have enumerated the uses that qualify as beneficial, but their definitions are very expansive and even include snowmaking and dust control. If a more restrictive definition were adopted that terminated the rights of certain appropriators, it could free up water for more essential uses. | | | | |
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< | Now
While Lockean values still favor prior appropriation, water is a unique form of property and cannot be allocated on the basis of just desserts. According to the UN, “the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of human rights.” As life in the West has urbanized, water rights must change to continue accommodating this fundamental human value. Efficiency concerns also favor modifying water rights, as it is no longer clear that prior appropriation makes the most productive use of scarce water resources. The West is "less dependent on irrigated agriculture and raw commodity production" and has become much more urbanized (p.7). | >
> | Another development frequently cited as evidence that prior appropriation will meet future needs is the emergence of water markets. Advocates claim that the alienability of water under prior appropriation allows owners to sell to the most efficient user. Making the Coasian argument that initial entitlements are not determinative of an efficient outcome, however, assumes that water is merely another form of property to be exploited. Marketplaces may indeed be an effective means of granting lucrative water rights to the party most willing to pay for them, but do not assure that the most crucial needs are met. Additionally, because “water is an ambient resource where the actions of any one user necessarily affect many other users,” creating efficient water markets would require overcoming the extremely high transaction costs associated with disaggregated ownership. | | | | |
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< | Possible Solutions | >
> | Government control | | | | |
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< | Any solution to this problem will have to overcome opposition from vested interests. Lockean labor values may have to be subjugated to support human values and promote efficiency, but some type of reform is crucial to a sustainable future. | >
> | A few states have begun to purchase water rights from private holders and then lease the rights back to the original owners. This policy creates state control without changing water usage in the short term, and is a step in the right direction that should be emulated by the other western states. By centralizing ownership within state governments, the region would have an opportunity to create a long term plan that is responsive to current water needs, but balances future requirements against expected decreases in supply. Instead of allowing unpredictable market forces to determine the allocation of the resource, water managers could ensure that it serves the immediate needs of the population and of necessary industry. To effectuate such a policy, states could rely upon takings and eminent domain to secure water rights from unwilling owners. | | | | |
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< | One solution would be to allow prior appropriation to remain as the underlying doctrine, while using statutes to strictly limit "beneficial use." Currently, beneficial use "is a fairly elastic concept that freezes old customs, allows users flexibility in the amount and method of use, and leaves line drawing to the courts." Some legislatures (Colorado - C.R.S.A. § 37-92-103 and California) have enumerated the uses that qualify as beneficial, but their definitions are very expansive and even include snowmaking and dust control. If a more restrictive definition were adopted that terminated the rights of certain appropriators, it could free up water for more essential uses. A few states have created preferential policies giving higher priority to certain uses of water regardless of date of appropriation. This policy should be adopted by the rest of Western states to ensure sufficient water in times of draught. Finally, states could use the public trust to inhibit users from drawing excessive amounts of water from certain sources (National Audubon Society v. Superior Court. 33 Cal. 3d 419). While this could be an effective strategy for limiting use in specific cases, it requires extensive litigation on a case by case basis, and would not be an adequate policy by itself. | >
> | Finally, states could use the public trust doctrine to inhibit users from drawing excessive amounts of water from certain sources. The public trust has been criticized because courts have failed to provide sufficient justification for applying it (cite-paper 15), but the expected decrease of water could provide such a justification. While this could be an effective strategy for limiting use in specific cases, it requires extensive litigation on a case by case basis, and would not be an adequate policy by itself. | | | Conclusion | |
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< | Prior appropriation helped populate and develop the West. But as the region confronts new challenges for the next century, it will have to modify the doctrine to ensure that this unique form of property continues to promote human values.
The essay seems to me to
make prior appropriation doctrine seems more static and less flexible
than it is in practice. Cities have been modifying their surrounding
water rights environments for a long time, so that as the West became
the most urbanized part of the United States (as it presently is),
prior appropriation comes to look more like a system for resolving
user disputes—for which it has always worked well—while
the large-scale allocation decisions occur in different form. But
slowness and close attention to immediate purposes is even more
characteristic of water managers than of lawyers. You might want to
take a look at this paper on the future of prior appropriation by A. Dan Tarlock,
of Chicago-Kent, which although it's getting old is still quite
relevant. | | | \ No newline at end of file | |
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> | Prior appropriation helped populate and develop the West, but its current form should not be counted upon to sustain an exploding population in the face of a changing climate and decreasing water. While it is possible that continued evolution of the doctrine may be sufficient, relying on such an uncertain solution risks the West’s future. Centralized planning of water allocation may be the most effective way to ensure that this unique form of property serves its most crucial needs, although it would have to overcome traditional notions of government inefficiency. Water is essential for supporting life and western water policy must secure it for its burgeoning population. |
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