_

Prior Appropriation: a Suitable Doctrine for the Changing West?

Introduction

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?

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.

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.

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. 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

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).

Possible Solutions

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.

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.

Conclusion

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.