Is Prior Appropriation a Sustainable Doctrine for the West?

Introduction

The current system of water rights in the western states developed to meet the needs of a frontier region. 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 sustain the region's growing needs?

Brief 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. Source Due to the expected effects of climate change, however, scientists predict that water levels will shrink by at least 20%. Source. 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. Source. 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.

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 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. Source There are no absolute rights to a volume of water, only rights to a volume of water for a specific use, so a senior appropriator cannot change his use of water without risking losing his rights.

This doctrine leads to a number of serious problems (I'll only address a few) 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 reduction in rights, there is a perverse incentive for senior appropriators to keep using excessive amounts of water and not invest in technology that would decrease their need. Finally, environmental uses of water are not accorded much importance.

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.

Then

The 19th century West was a land in need of domestication, but was more arid than the East. Thus 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.

Now

It is no longer clear that prior appropriation makes the most efficient use of scare water resources. The region is "less dependent on irrigated agriculture and raw commodity production" and has become much more urbanized. Source - p.7 Prior appropriation, however, still allocates the resource based on who had the first claim in the 19th century. Instead of allowing water to promote the greatest good for the West, it therefore limits initial rights to ancient users. Human values of property have also shifted as the West's economy has urbanized. The region's use of water is bound up in the lives its citizens lead in cities, and human values suggest that water rights should follow. Lockean values still favor prior appropriation, however, as shortages of water should not affect the ability of individuals to enjoy their just desserts.

Possible Solutions

Any solution to this problem will have to overcome opposition from vested interests. Lockean labor may have to be subjugated to support utilitarian and human values, but some type of reform is crucial to a sustainable future.

Strict Statutory Definition of "Beneficial Use"

This solution would allow prior appropriation to remain as the underlying principle in the West, but could promote much more efficient use of the water. 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." Source If legislatures adopted a restrictive definition of beneficial use and terminated the rights of certain appropriators, it could free up water for more essential uses.

Takings

The government could step in and take the rights to certain water sources. Such an action would be expensive, but could provide a solution.

Public Trust

States have effectively used this doctrine 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 an individual basis, and would not be an adequate policy by itself.

Conclusion

Prior appropriation has adequately served western water needs. But as the region confronts new challenges for the next century, it may have to adapt its water policies to realign with theories of property and meet the demand of its increasing population.

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