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NathanStopperFirstPaper 9 - 04 Apr 2010 - Main.EbenMoglen
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> | _ | | | Prior Appropriation: a Suitable Doctrine for the Changing West?
Introduction | | | 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. | |
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> | 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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NathanStopperFirstPaper 8 - 03 Mar 2010 - Main.NathanStopper
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< | Is Prior Appropriation a Sustainable Doctrine for the West? | >
> | Ready for editing
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 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? | >
> | 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? | | | | |
<
< | 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. | >
> | 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 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. | >
> | 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. | | | | |
<
< | 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. | >
> | 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 | |
<
< | 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. | >
> | 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 may have to be subjugated to support utilitarian and human values, but some type of reform is crucial to a sustainable future. | >
> | 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 define "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." 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. Another solution would be for the government to take the rights to certain water sources. Such an action would be expensive, but could provide a solution. 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 an individual basis, and would not be an adequate policy by itself. | >
> | 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 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. | >
> | 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. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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NathanStopperFirstPaper 7 - 01 Mar 2010 - Main.NathanStopper
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Is Prior Appropriation a Sustainable Doctrine for the West? | | | 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. | >
> | One solution would be to allow prior appropriation to remain as the underlying doctrine, while using statutes to strictly define "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." 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. Another solution would be for the government to take the rights to certain water sources. Such an action would be expensive, but could provide a solution. 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 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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NathanStopperFirstPaper 6 - 26 Feb 2010 - Main.NathanStopper
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< | Is Prior Appropriation a Sustainable Water Rights Rule for a Drier West? | >
> | 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? | | | | |
<
< | 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 a 19th century common law 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. | | | | |
<
< | A Brief Scientific Background with Links | >
> | 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. | | | | |
<
< | In 1900, the population of the eleven continental western states was about 4 million, but by 2000 it had grown to about 64 million and will undoubtedly continue to increase throughout the next century. Source Due to the expected effects of climate change, however, scientists predict that water levels will shrink by at least 20% in the region. 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 also suffered long and severe droughts that have had cataclysmic effects on the inhabitants, suggesting that water levels are unpredictable and fluctuate. Source. Thus, the West is entering the 21st century in a precarious position: an exploding population in an environment with decreasing water levels that is prone to extended droughts. | >
> | 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. | | | | |
<
< | The Current State of Water Law in the West | >
> | 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. | | | | |
<
< | Water law in the West consists of | >
> | 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. | | | | |
<
< | Prior Appropriation | >
> | 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. | | | | |
<
< | In order to promote the activities that built the region, most western states adopted prior appropriation as their common law. 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 with a junior claim. 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. Seniority passes with the sale of land.
This doctrine leads to a number of serious problems that will inhibit 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. Secondly, 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. As water levels decrease, and the source of water shifts from runoff to rain, these problems will be substantially exacerbated.
Statute
Two Theories of Property Law to Explain These Rights
Personhood | >
> | Possible Solutions | | | | |
<
< | Efficiency | >
> | 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. | | | | |
<
< | Possible Solutions | >
> | 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. | | | | |
<
< | Maintain the Current System | >
> | 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. | | | | |
<
< | Adopt a Foreign Model | >
> | 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 | |
<
< | - practical difficulty
- who chooses to shift to new value system? | >
> | 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. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: |
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NathanStopperFirstPaper 5 - 26 Feb 2010 - Main.NathanStopper
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Is Prior Appropriation a Practical Water Rights Rule for a Drier West? | >
> | Is Prior Appropriation a Sustainable Water Rights Rule for a Drier 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 a 19th century common law doctrine sustain the region's growing needs? | | | A Brief Scientific Background with Links | |
<
< | Evan Bayh recently wrote in an "op-ed" explaining why he's retiring from the Senate that some members of Congress used to socialize with each over and help with re-election efforts regardless of party affiliation. Now they spend their time plotting the demise of their colleagues from the other party. The ideological divide between the two sides is at such a high that it was considered a substantial victory when Republican Olympia Snowe voted to send a healthcare bill out of the Senate Finance Committee (story here), despite the fact that it would still face tremendous opposition by every other Republican Senator. Taking an all-or-nothing approach, Congressmen are unwilling to cross the aisle to enact legislation - assuming they can reach a consensus within their own party. | >
> | In 1900, the population of the eleven continental western states was about 4 million, but by 2000 it had grown to about 64 million and will undoubtedly continue to increase throughout the next century. Source Due to the expected effects of climate change, however, scientists predict that water levels will shrink by at least 20% in the region. 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 also suffered long and severe droughts that have had cataclysmic effects on the inhabitants, suggesting that water levels are unpredictable and fluctuate. Source. Thus, the West is entering the 21st century in a precarious position: an exploding population in an environment with decreasing water levels that is prone to extended droughts. | | | The Current State of Water Law in the West | |
>
> | Water law in the West consists of | | | Prior Appropriation | |
<
< | Common Law | >
> | In order to promote the activities that built the region, most western states adopted prior appropriation as their common law. 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 with a junior claim. 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. Seniority passes with the sale of land.
This doctrine leads to a number of serious problems that will inhibit 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. Secondly, 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. As water levels decrease, and the source of water shifts from runoff to rain, these problems will be substantially exacerbated.
Statute | | | Two Theories of Property Law to Explain These Rights |
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