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

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

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

Efficiency

Possible Solutions

Maintain the Current System

Adopt a Foreign Model

Conclusion

- practical difficulty - who chooses to shift to new value system?

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