The Water Dissensus – A Water Alternatives Forum
How long can Old Prior appropriation water rights survive in a climate-stressed, urban American West?
In a 1991 article, Charles Wilkinson pronounced the Old Prior water rights doctrine dead after a run of 151 years. To paraphrase what Mark Twain once said about a premature eulogy, the report of Prior's death "was an exaggeration." The doctrine, born in the gold mining camps of California in the late 1840s, remains the foundation of Western USA water law, even though its original purpose is increasingly irrelevant to the modern West.
A prior water right means the first person to use or divert water for a beneficial purpose holds that right as long as it is used beneficially: "first in time, first in right". It also determines who gets water during times of shortage. In 1935, the United States Supreme Court held, that Congress had ceded control of western waters to the states in a series of late 19th acts, The Supreme Court applied its own narrow reading of history. Justice Sutherland thundered that the "future growth and the well-being "of the inner Mountain West "depended on a complete adherence to the law of prior appropriation." Resolving conflicts over water through the courts is, unfortunately, the default approach in America's West.
The assumption that the West would continue to grow primarily as a center of irrigated agriculture is no longer true, although irrigation remains important, especially in California, Idaho, and Washington state. Today, the modern West, the country's most urbanized area, faces three interrelated challenges. The first is global climate change. The international community has failed to halt greenhouse gas emissions, so the water-stressed West is left to adapt to a drier and hotter climate. A recent University of California study summed up the results of the suicidal combination of groundwater mining and climate change for the San Joaquin Valley: "[W]hen considered cumulatively over the 12-year study period, this demand exceeds the storage capacity of the valley's five largest reservoirs combined."
The second is continued urbanization throughout most of the region. Much of the West is attractive to people who want outdoor recreation access and milder winters. Air conditioning, large dams and reservoirs, and groundwater mining have allowed urban areas to ignore the natural limits on growth and cater to those seeking to escape harsh winters and enjoy multiple outdoor recreational options.
Finally, agriculture is in its third retreat. The first occurred in the late 19th century. Settlers were induced by the railroads to farm the areas between the Missouri River and the Pacific Coast on the bogus scientific theory that rain follows the plough. Dry years in the 1890s disproved the theory and ultimately led the federal government to promote agricultural settlement. The drought triggered the expansion of irrigation based on the Reclamation Act of 1902. The 1930s Dust Bowl reinforced the notion that Western agriculture requires substantial government support and subsidy. The Big Dam era veined the West with carry-over storage reservoirs. Professor Stephanie Stern wrote in a forthcoming article, that "[a] third wave of agricultural drought retreat is now occurring across the West. In response to the current mega drought, farms are collapsing, fallowing all or most of their crops, or struggling to relocate operations. Most western farms lack the technical expertise and funds to relocate to water-rich regions, or to switch to less thirsty crops or non-agricultural sources of revenue. Retreat has been ad hoc and painful, with many small farmers and ranchers draining their savings only to collapse in the end. The federal government, so generous with subsidies for maintaining agriculture, has turned a blind eye to support for relocating it."
Legally, the West faces a paradox. Western water users and state officials accept that climate change is real. But they are reluctant to address the elephant in the room : prior appropriation has resulted in about 80% of the West's water being devoted to agriculture. For example, the Great Salt Lake is drying up due to climate change and upstream diversions which have substantially reduced inflows, but Utah seems willing to live with a shrinking lake. Recently, "[t]he Utah Rivers Council awarded Utah a "D-" grade for all its [Utah's] 2024 water bills. The council's director called it one of the "most destructive" sessions for the Great Salt Lake in recent history.
A range of reforms have been suggested. Here are my top four.
Federalize water rights
Various scholars have suggested federalizing water rights. This is not going to happen for political and legal reasons, but agricultural retreat has opened a new possibility. In a forthcoming law review article, Professor Stephanie Stern (with minor contributions from your blogger) argues that the federal government could purchase some of the water rights before they are abandoned or claimed by other users. The precedent for this is the purchase of homes in flood plains as part of a "managed retreat." This would create a pool of water available for instream environmental flows to preserve waterways and aquatic ecosystems.
The Aussie way
There has always been a close relationship between Australian and United States water law. Prior appropriation was studied in the late 19th century as the irrigation economy grew, but New South Wales, as has most of the world, rejected it and adopted a licensing system. In recent years, proposals have been made to dump prior appropriation in favour of the reformed New South Wales system. In brief, the state would issue volumetric water licenses and curtailment rules that apply to all licensees. The licenses would be freely transferable.
This is also unlikely to happen. A proposal to introduce it in Nevada was challenged as a taking (i.e., seizure of property rights). Courts have generally upheld switching from riparianism to prior appropriation because more secured property rights are created. However, moving from prior appropriation to volumetric, riparian-like entitlements would do the opposite: turn secure rights into less secure rights. But one could argue that the imperative of global climate change adaptation justifies a public emergency taking.
Leave 'Old Prior' alone: It's up to the job
In theory, prior appropriation is a complete climate change adaptation package. The ranking of priorities means that each user knows exactly what risks they will face during a shortage. If additional water is needed, there are several permanent and temporary transfer options, such as water marketing, available to move water to high-demand uses. This can include environmental flows. The Colorado River District recently paid 99 million dollars to change non-consumptive hydropower power rights with a 1928 priority into instream-flow rights which benefit the environment, recreational and other users and block out-of-basin transfers. Nevertheless, such trading is voluntary and can be expensive; as water demand outgrows the supply, a more equitable way to allocate water fairly will be needed.
Just ignore the 'old prior' rights
While prior appropriation remains the default rule, in practice its application is declining. Courts are chipping away at it. For example, courts are increasingly willing to invoke the "futile call doctrine". A futile call occurs when a downstream senior water right cannot be satisfied, because of factors such as evaporation, even after curtailing upstream junior water rights. Thus, the call is not honoured. More broadly, there are ambitious efforts to develop basin-wide management plans rather than litigate and adjudicate to fix priorities. More and more, senior water rights holders are willing to forego voluntary enforcement of old priorities in favour of basin-wide solutions that provide benefits for all users and interests. For example, the Yakima Basin Integrated Plan is a 30-year plan to provide, inter alia, more reliable water supplies for irrigators, instream flows, and Native American tribes through increased water conservation and new storage.
Conclusion
The prior appropriation doctrine has led the western US in a cul-de-sac. For example, irrigating crops to feed cattle is the largest water use in the Colorado Basin, although the majority of US beef production, except for California, occurs in states outside the basin. To some, federalization and/or adopting a new system, along the lines of what Australian federal states have adopted, with volumetric entitlements that adjust to yearly shifts in sustainable water supply may appear to be the most rational ways to manage the growing water shortages, but both are politically and legally unrealistic. Leaving the prior right doctrine alone is not feasible either. This leaves "ignoring the old guy" as the default option. One wonders what the urban future in the West will look like in this scenario.
Photo credit: Dale Kolke/DWR; California Aqueduct and agricultural fields
Comments 29
Very informative commentary on prior appropriation. I really learned a lot and would like to learn more about other contexts that are characterized by such path dependence in water rights systems
Bharat Punjabi
U of Toronto
Thank you for your question. For a water rights system to play such a decisive role in how water is used you have to have both a high risk of scarcity and a number of private actors/rights holders. Two places that I would look are Hawaii and Australia. In Hawaii, a unique system of water rights supported the now dead plantation economy and is now undergoing radical change. In Australia, a system of virtually unlimited water licenses created the degradation of the Murray-Darling aquatic ecosystem.
Dear Dan,
As an instructive case-study, you could look north to Canada. Southern Alberta (AB) provides the national focus for irrigation, with a suitable climate, reliable river flows from the Rocky Mountains, and a favorably flat but sloping landscape.
With your familiarity with Utah, you might know that the regional railway brought in Mormon settlers to develop irrigation to promote agriculture and economic development. The concept of prior appropriation was extended from the US but with specified licensing and thus, ‘prior allocation’.
With progressive irrigation expansion, the system was extensively allocated, prompting concerns through a drought interval of the 1980s. This coincided with a large and controversial storage reservoir, the Oldman River Dam project. A lawsuit related to Provincial versus Federal jurisdiction relative to environment impact assessment advanced to the Canadian Supreme Court, which provided a clear ruling, ‘it’s both’.
This prompted the creation of an Environmental Advisory Committee (EAC), with some authority. I served on the EAC, and we recognized that prior allocation would be a problem. The project negotiation involved the award of a water license to the First Nation near the reservoir but since the license date was recent, there would be no water provided in dry years, which are of course the years that count. The Province would effectively renege on the agreement.
As we considered the challenge, we reached an important view – license seniority applies only to the natural river flow. If water is stored in a government reservoir in a time of surplus, that water is not later bound by seniority, and the government would have substantial discretion. We then determined that the water stored behind the Oldman Dam would be first used to provide minimal environmental flows and subsequently the multiple users would ‘share the shortage’, independent of licence chronology.
A subsequent test arose shortly thereafter with a drought year that would have led to the cut-off of recent licences from a nearby river system. However, the recent licences included some high priority applications, including water for a large food-processing plant. All recognized that it wouldn’t make sense to grow the irrigated crops but not be able to process them. Thus, the concept of shared shortage was applied for this second system, which also included a government owned and operated dam and reservoir.
This new system, with increased flexibility for stored water, and sharing the shortage, has been in place for two decades. It seems to work well and has been extended into British Columbia. We’ve briefly described the sequence in our paper, Relaxing the Principle of Prior Appropriation: Stored Water and Sharing the Shortage in Alberta, Canada | Water Resources Management (springer.com)
Best regards,
Stewart Rood
University of Lethbridge, AB
Dear Stewart, Thank you very much for reminding me about Alberta's water reforms. I need to refresh my memory and to include them in any discussion of alternatives to prior appropriation.
Is water marketing, leasing, etc. leading to the end of prior appropriation, or keeping it on life support? See, for example, article on the Guardian today on buying farms to sell the water (https://www.theguardian.com/environment/2024/apr/16/arizona-colorado-river-water-rights-drought).
Dear Pat, water marketing has ling been touted as complete reallocation solution, but, as far as I can tell, it has never fully lived up to its potential for a number reasons. it has been beneficial to a number of cities, and to a much lesser extent the environment. Still, almost 90% of western water goes to agriculture, and a good chunk of that goes to alfalfa and hay. It don't think that this sustainable, especially since there is only one state, Montana, in the top ten beef producing states. DAN
Dan:
many thanks for a thought-provoking piece. It reminded me, that I am basically iliterate when it comes to water management in the American West, as my only limited reading about it was 2 decades ago and limited to the books by Marc Reisner and Donald Worster.
A couple of reflections:
1) I was particularly puzzled by the following statement: "Most western farms lack the technical expertise and funds to relocate to water-rich regions, or to switch to less thirsty crops or non-agricultural sources of revenue. Retreat has been ad hoc and painful, with many small farmers and ranchers draining their savings only to collapse in the end.". Having worked in developing countries all my life, I am to well aware of this: both as a matter of fact, but also by being rather critical of the industry that blooms around it (the army of UN staff wondering around to build capacity and handing out cash; often with little deeper understanding of the issues at hand).
But the deeper question for me is: if this is the case in the US; one of the riches countries of the world; with almost limitless options to adress this lack of means; how about all those countries that do not have not even a percentile of these means. Is all of this support in developing countries (again, some of it I find rather absurd myself), completely in vain? It is a question that is really quite complex and not sure if anyone really thought about it this way. It certainly never occured to me.
2) Having worked on the question of federal vs. provincial authority in water management in some countries, for example in Pakistan (not on the legal side, but on the very much related and resulting organizational side), It is one of those issues where depending on perspective there seems to be no real right or wrong. But as a naive person, I often wondered if federal laws could really just be limited to highlevel goals, prioritization of uses, and general principle; while provinces (or clusters of provinces in the case of basins cutting across) have more or less free hand to choose the approach that they say most fit. I.e. why not allow provincial governments to agree on whatever way. In your case: any of the four options you highlight, or a combination of all of them. But of course, I am an engineer and not a lawyer!
3) Lastly, your piece was also a good reminder of the centrality of law in water management; and that I believe critical water scholarship (myself included in earlier times when I dreamt of becoming an academic) avoids this critical topic, but focuses too much on the many aspects around it. I might be wrong, but this is at least my observation.
Philippe
Water management in the Marlborough district of New Zealand is much more advanced than the Murray Darling Basin in Australia. They manage all the water both rivers and wells. The water use consent is made on a monthly basis based on the ET. That is easy as it is a relatively small area (about 30,000 ha) and one crop (vines) all on drip. ET is measured at a series of weather stations.
It has a much more sophisticated grading of the consents on the basis of reliability with A B and C class consent.
With MDBA it is important to remember the allocation starts at the macro level with quotas for urban use, the environment and irrigation. The current Federal Government is trying to fill the environmental quota by buying back water rights. It is doubtful whether this will make a significant improvement as the farmers' water rights include the return flow. There has been a long and steady improvement in the efficiency of water delivery over many decades. As farmers convert to drip they take less water from their water right. ET efficiency is the same. They sell the rest. Return flow is reduced and hence less environmental water is available and water for farmers down stream is also reduced.
It is interesting from a historical perspective as in the 19th century Australian land titles were and still are granted on the basis on the land used by the farmer that is the first few metres. When farmers were given free water rights (they had to pay for their land) they obtained title to the water they used and the water they did not use.
The MDBA covers four states and was heralded initially as a relief from "the squabbling states" but now it has finally discovered that the state did not always agree because they had quite different crops, irrigation systems etc.
The whole question of which section of the hydraulic cycle will be allocated to farmers is complex. In Queensland (an Australian state) some land owners tried and failed to claim the rainfall on their land. In developing countries there is also the question of responsible use. In the US or Australia water can be used for cattle feed or the horses in the Royal Saudi stables but other countries want to produce human food.
Dear Brian, Thank you for your insights on the Murray-Darling. Three quick comments, First, water scarcity, especially in light of climate change, has to be addressed at the basin level, Second, the Australian experience is very useful because the weak federal government has aske the right questions about what the federal role should be. In contrast, in the United States, a strong federal government left allocation up to the states and tried to deal with scarcity by building dams. The big dam era is over, and Congress has not defined a new federal role. Thus, the feds are left trying to get the states to face permanently living with less water. Third, it is very hard to deal with questions about feeding the Saudi royal family's horses without a national food policy.
All assumptions concerning future climate regimes are iffy almost beyond description. So, such speculations are not an adequate basis for real-world planning. However, we have remarkable meteorological droughts in the Southwest of the USA as well as a population of over forty millions. In other words, freshwater supplies managers must anticipate failures and fractures of their systems that imperils people and their infrastructures. Perhaps some planners will be inspired by reading "Mirror Macro-Imagineering Water Supply Megaprojects: Pipedream Chile-California Complementarity?" in the online Brazilian journal CALIBRE (2018).
Thank you for the citation. AS you point out, the uncertainty that climate change introduces into water allocation institutions is daunting. States such as California say that they will incorporate climate change into water planning and allocation, but, as far as I can tell, little progress has been made. This would be an excellent legal-scientific collaboration.
@Dan -- you've got decades more experience than me, so I'm writing with some humility.
(1) You say "prior appropriation has resulted in about 80% of the West's water being devoted to agriculture" but that causality is not strictly true except for the lack of (a) transfer mechanisms and (b) markets. Transfers are often blocked, e.g., by "out of area" bans that allow local consumers to buy "surplus" water for less. Markets require not just regulatory certainty (lacking) but also infra (very lacking), so they've under-delivered.
(2) Australia's move to defined shares -- rather than defined quantities -- seems to be the most elegant way of dealing with variablity. It's the solution to the Colorado River Compact's defects; it can work with climate change. Why is it not done? Apparently, some PA holders seem to think that others will "get a larger share" -- which does make sense in the context of replacing dozens of priorities with a single percentage allotment (or the dual system in AU). Mike Young has written a brief on how to implement AU's system in California... without result.
(3) *THE RISK* is that there's a shortage and gov't seizes water from ag, for cities. That would put all rights into play, and farmers (and their wall street backers) would lose their mind. What would the price of eminent domain be? The price farmers paid? The value of water on land? The spot market price in the same drought? A total mess. It's for these reasons that farmers would do a lot better for themselves by taking the time to set up SOME SORT of market mechanism, to (a) show trades are possible within an existing system (b) "highest and best use" and (c) the price of water in exchange. But those systems -- when they exist -- are often not publicized (usually b/c trade prices are so much lower than prices for M&I.
I've written a paper to address "allocation under scarcity" -- the all in auction -- that may give you (and readers) some more ideas: https://www.kysq.org/pubs/AiA_Final.pdf
Dear David, You are catching up very fast with your excellent work. I know Mike Young's work, and I served with him for six years on the Technical Committee of the Global Water Partnership. We had many arguments about the constitutional barriers in the US in moving to a New Wales system. Auctions will not work in the US West for two reasons. The states don't own the water; they just have the power to regulate its use. And, there is no unallocated water left to auction. However, my co-author, Stephane Stern and I, just published an article in the Columbia Journal of Environmental Law, Moving Water: Managed Retreat of Western Agriculture for Instream Flows. The journal just went 100% digital so the article is available from its website.
The American West is the source of several variations of this saying, falsely attributed to Mark Twain. Another version is “A man from the west will fight over three things: water, women, and gold, and usually in that order” attributed to a former Senator from Arizona. These sayings illustrate how vital water is to the societies and economies of the southwestern United States. Because the early European settlers claimed that those who asserted q water right first got priority; the “prior right” system emerged and developed over time and was codified in law. This system, deeply embedded in state law, customs, and deeply held values, is extremely difficult to change. It would require politicians in many states with strong support from federal government politicians to bring about radical changes. This seems unlikely to happen given the current paralysis of American politics.
In an earlier comment, Pat McDowell cited the recent Guardian article, ‘Water is more valuable than oil’: the corporation cashing in on America’s drought (https://www.theguardian.com/environment/2024/apr/16/arizona-colorado-river-water-rights-drought). I think this case needs to receive a lot more attention. It describes the case of a private company in Arizona with a lot of capital purchasing about 202 hectares of agricultural land that has water rights (from the Colorado River) attached to it. The company has sold the water right to a city miles away, making a USD 14 million profit. Apparently, there is litigation going on over this transfer, but as far as I know, it is legal. But it is likely to have serious consequences, especially if done on a larger scale; at a time when the states are struggling over managing serious water shortages, it deprives the river, and indeed the local communities, of water. This could even make life in the area losing the water untenable if done more widely.
The American West is trapped by its own history and the vested interests that have been created. It is not clear to me that there are any truly equitable and rational solutions for the long term. Eventually, agriculture will have to give way to other uses, but in a messy and unpredictable process that will involve a lot of litigation. Those with senior rights through prior appropriation will benefit at the expense of the broader public interest.
Dear Douglas, you accurately point out, cities have done well with water markets and a lot of farmers are living a very comfortable retirement off the farm. The same cannot be said for fish and those left behind in the area of origin. If people are in interested in the scope of the problem, I chaired a Water Science and Technology Board, National Research Council/National Academy of Sciences report on this issue. WATER TRANSFERS IN THE WEST: EFFICIENCY, EQUITY, AND THE ENVIRONMENT (National Research Council, National Academies of Science, 1992)
Hi Dan
On the web, one can see several indictments of 'outdated', 'antiquated' or 'Byzantine' water rights in the American West, but I wonder how widespread is that perception, in particular among non-academics ?
It is striking to see the path-dependence generated by the prior-appropriation doctrine, even more so in a country where private property is sacrosanct. Almost all countries in the world have put water resources 'under state custody' (or other similar formula) and set up a system of permits/entitlements, or quasi-property rights (1).
I am interested in the fourth option, which seems to be the most realistic. Could it be enhanced by the 'shadow of hierarchy' (2), that is, mechanisms whereby the State/union could make its intervention more likely, so as to push actors to come up with arrangements that are more in sync with current realities? I understand a similar logic is employed for the California’s Sustainable Groundwater Management Act (SGMA) (see https://www.water-alternatives.org/index.php/blog/sgma) and also to push Groundwater Conservation Districts in Texas to define so-called 'Desired Future Conditions'. In both cases it seems that this process of comanagement is too slow/too late and akin, for some, to 'managed depletion', but arguably the only politically feasible. What kind of incentive/threats (legal or otherwise) could be made use of to elicit change?
*
"How California’s Water Rights System Gouges You and Me" ("It's time for California’s water managers to reform this antiquated system"), https://www.nrdc.org/bio/kate-poole/how-californias-water-rights-system-gouges-you-and-me
https://calmatters.org/environment/water/2022/02/byzantine-water-laws-will-leave-californians-high-and-dry/
(1) On "The tension between state ownership and private quasi-property rights in water" https://wires.onlinelibrary.wiley.com/doi/full/10.1002/wat2.1621
(2) On the comanagement of groundwater and the value of a credible environmental or legal threat Https://Wires.Onlinelibrary.Wiley.Com/Doi/Full/10.1002/Wat2.1394
Hello Francis, As you point out, the history of western settlement, state control of water rights and allocation, and the entrenched entitlements that this has generated make it difficult to adjust to the modern, climate stressed West. There is some hope in cooperative basin wide solutions where the right mix of federal involvement, state involvement and money to ease the pain of transition exist. For example there are positive developments in the Yakima basin of Washington state. In contrast, the state of Utah seems seems willing to allow the Great Salt Lake to turn into a toxic desert, in part to the historic indifference of the Church of Jesus Crist of Latter Day Saints to the the natural environment for theological reasons.
In reaction to PatMcDowell and Douglas Merrey 's comments:
Some attempts to counter market-based solutions:
https://www.theguardian.com/environment/2024/apr/18/water-scarcity-private-speculation
Thank you, I think that the bill has zero change of passing. There is another side to transfers such as the recent one in Arizona. Western agriculture has always required enormous subsidies to keep it going. Climate change is making it more and more difficult to farm in very arid places even with the subsidies. What we seeing is a rationalization of western US agriculture. It will concentrate in the most productive areas, the Central Valley of California, a downsized Imperial Valley, the Yakima Valley of the Washington, and Snake River Plain of Idaho.
Interesting article. As Dan says, it has zero chance of passing. Note that Sen. Warren is from Massachusetts, on the east coast, and not facing water scarcity; and Rep. Khanna is from northern California, also not notably water scarce. Further, both are liberal democrats (same as I am) but it is unlikely the Democrats will ever have sufficient control of Congress and the White House to pass such a bill. But thank you for sharing the link.
When the Australian water market was established to was designed for water traders not for water users. The complaint of the users were brushed aside in the belief that trading solved all things. Perhaps the most incredible remark was during the severe drought (early 2000s) when the chief of the Murray Darling Basin Authority said that the drought had been solved because three times as much water had been traded. In the meantime orange growers were chopping down their trees to about one third of their mature height is a desperate attempt to save them.
The problem is that we are still unable to think about water except in terms that we developed for land.
You are 110%. Since the US stopped building dams, we haven't been able to develop a comprehensive, multi-value river basin planning system.
Greetings Dan,
I enjoyed your reflections on the four options for reform of the prior appropriation doctrine. I was a relatively new assistant professor at the University of Colorado when Charles Wilkinson’s “Old Prior” article came out in 1991, along with a commentary in favor of the reform option #3 by Greg Hobbs, both of them now sadly passed. It was a time of intense debate about the triple threats of climate change, urbanization, and agricultural futures – as it has been ever since. Some reform literatures focused on conservation options to increase water use efficiency in physical and economic terms, others pioneered instream flow rights, some focused on equitable access and support for various water communities, and many embraced combinations of the above. If I read it correctly, Reed Benson (2011) drew upon your work and others to note the declining relevance of prior appropriation in ways that looked ahead toward option #4.
Two additional avenues for reform come to mind. The first involves the revolution in administrative technologies that have expanded public internet access to water rights related data. E.g. the Colorado Decision Support System provides online access to water rights, water diversion records, administrative calls, transactions, referee reports, well permits, and more (https://dwr.state.co.us/Tools/). The Colorado Judicial Branch has posted the past ~20 years of monthly Water Court rulings and summaries for each of its seven divisions (https://www.courts.state.co.us/Courts/Water/Index.cfm). It is interesting to consider the innovative analyses of water rights dynamics and policy scenarios that these reforms might enable -- as the 1969 Water Rights Determination and Administration Act did a generation before).
A second, more normative and speculative, avenue for reform would re-envision the duties of water. Prior appropriation rights carry various evolving contested normative duties, e.g., beneficial use, no injury, no waste, etc. While the original “duty of water” irrigation standard has been largely eclipsed, the “duties of water” might be more broadly re-conceived to situate the rights and duties associated with prior appropriation within a broader framework of water norms and policies (Wescoat 2013ab).
Thanks for posting your blog and,
Best,
Jim
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Benson, Reed D. 2012. Alive but Irrelevant: The Prior Appropriation Doctrine in Today's Western Water Law, 83 U. COLO. L. REV. 675 (2012). Available at: https://scholar.law.colorado.edu/lawreview/vol83/iss3/2
Wescoat, J.L. Jr. “Reconstructing the Duty of Water: A Study of Emergent Norms in Socio-Hydrology,” Hydrology and Earth Systems Science, 2013. 17, 4759–4768. Special issue on Prediction in the Anthropocene. European Geosciences Union. http://www.hydrol-earth-syst-sci.net/17/4759/2013/hess-17-4759-2013.pdf.
Wescoat, J.L. Jr. “The ‘Duties of water’ with respect to planting: Toward an ethics of irrigated landscapes,” Journal of Landscape Architecture, ECLAS. Special issue on Water, 2014. DOI 10.1080/18626033.2013.864070, pp. 6-13.
Hi Jim, Thanks so much for chiming in on the blog. It gives me yet another chance to steal some of your always insightful ideas. This blog, as you point out, summarizes some ideas for making ole prior more responsive to the real West, especially in light of what seems to be a shrinking of western agriculture. But, internal reforms of the system are always helpful. As you indirectly point out, appropriators, in many states, have long been able rely on the fact that the state does not have accurate data on water use. General stream adjudications have helped close the gap, and California is actually starting to try to get a handle on what rights exist and how much water they are actually using. The late Frank Trelease, the preeminent water law scholar in the 50s and 60s, once remarked that California doesn't administer water use; they just throw money at it. And, as you know, people, my self included, have tried to curb excess water use through the beneficial use and public trust doctrines without much success. But, I am going to track down your two articles to get some fresh ideas on the subject.
Dan, thanks for kicking off this conversation. I would follow on with just a few quick points:
- I agree that the US won't go the way of the Aussies and really federalize water policy, for many reasons. But it's interesting to see all the federal money -- billions and billions -- that Congress kicked in for various western water programs in the Bipartisan Infrastructure Law and the Inflation Reduction Act. Some of it was for new environmental grant programs, some for conservation, but much of it is for more traditional water-supply infrastructur, like water reuse/recycling projects and new storage. A lot of it is for competitive grant programs. It's not a federal takeover of water policy, but it is throwing lots of money at it -- as Frank Trelease described California doing.
- Speaking of California, my impression as an outsider is that the State of California in recent years has gone well beyond throwing money at water management. It seems to me that the State is now asserting and exercising authority -- especially as to groundwater -- in ways that it was not prepared to do until the crisis got sufficiently bad within the last decade. Obviously it's a work in progress and remains legally and politically disputed, but it seems to me that California has decided it has no choice but to start regulating in ways it wouldn't do before. I suspect that one by one, other western states will feel compelled to do something similar as climate change and other factors stress the system to the breaking point. Thus, over time I think we will see a certain "Californiazation" of water law and management in the West.
- One last thought about the feds. There was a time when federal benefits were conditioned on states meeting certain requirements, e.g. Arizona getting the CAP if/when it strengthened its groundwater management framework. Today's federal government has no stomach for imposing such conditions, but rediscovering that approach (in some form) might give some states a needed nudge toward improved water management.
Hi Reed, Thanks for reminding us about groundwater. As we know, prior appropriation doesn't really work for groundwater because it it is hard to define the right as aquifers are mined. For that reason, many of the big pumping states, Arizona, California, Colorado, Nebraska, and Texas, have never applied it. New Mexico has made it work in Rio Grande Valley by retiring surface rights, but Idaho struggles to make it work. Perhaps our co-author, Burke Griggs, van address this is a blog. This is a politically naive view, but the federal government should only be spending money on western water as part of a climate change-based agricultural retreat policy.
Adding to the discussion
https://www.latimes.com/environment/story/2024-04-16/california-tulare-lake-groundwater-probation
where it seems SGMA will not do the job without substantial arm twisting...
An interesting conversation, thanks for launching it.
I live in a Colorado West Slope mountain valley where something between 90 and 95 percent of the water goes to irrigated agriculture, primarily grass hay crops. The valley's main economy is outdoor recreation and retirees. The agriculture is really more of a 'heritage culture' than an economy, with most of the land owned by families who have been on the land for as much as five generations - here since the Indians were driven out.
What one learns, talking to these four- and five-generation ranchers and farmers, is that most of these mountain valleys were settled by what some history books call 'rugged American individualists,' Thomas Jefferson's 'yeoman farmers' - single men (sometimes women) or families exercising John Locke's permission to appropriate land and water from the commons, first come first served for the best of either. The prior appropriation doctrine was not first created in legislatures or constitutional conventions; it was invented at headgates on thousands of streams, sometimes violently; the legislatures were just codifying common law.
But this was both a helter-skelter and somewhat naive way to develop a valley, or a region - and the naivete is probably one big reason why two out of three homesteads failed in the last third of the 19th century. It took a while for Euro-American homesteaders to realize what the Spanish-American settlers knew from their homeland experience: that it takes a village to live intelligently in an arid or semi-arid landscape.
The Spanish and Mexican land grants were only given to communities or companies, and the acequia systems they built began with a community-built mother ditch contoured above irrigable land that is then subdivided as equitably as possible among the settlers, who got land below the ditch for their irrigated farm and above the ditch for pasturage. Some of the irrigable land below the ditch was kept in commons as the vega, for winter grazing of some of the livestock, and the balance of the land above the ditch was the ejido, another commons for wood-gathering, summer pasture and other common purposes. A big difference from the appropriation doctrine was in dry times: there were no senior and junior users calling each other out; everyone cut back, shared what was available. Not always smoothly and painlessly, but like prior appropriation elsewhere, it was the common law of the land.
But what one finds, among the rugged individualists, is a tending toward the 'irrigation community.' My great-grandfather and his brother arrived in the valley of the North Fork of the Gunnison River in the early 1880s; they staked claims at the upstream end of one of the floodplains. Other settlers soon moved in downstream from them, with a constitutional right to cut across my ancestor's land with their conveyance ditch - an 'I got mine, Jack' sort of a right that does not foster good neighbors. But instead, they collaborated with my ancestor to just enlarge his ditch that contoured around his land, to also contour around the neighbor's land. That happened all the way down that floodplain, and by the time they got around to filing for a water right, there were 20 farmers pulling water from the same headgate. They never organized formally as a 'ditch company,' and 'acequias' weren't allowed under the appropriation doctrine (they are now), but that is basically what they were.
Even in places where there was no such collaboration among settlers, after two or three generations of living adjacent to each other, the farmers on a stream are either feuding and still shouting at each other, or are working out what they call 'gentlemen's agreements' whereby in dry times they share the pain along with whatever water they can get.
Where this kind of good sense in 'ignoring Old Man Prior' often ceases to be applied, however, is between larger groups, especially in different states - as when the California irrigators with very senior Colorado River rights threaten to take the other Basin states to court for suggesting that the long-ignored Lower Basin system losses should be divided equitably among the states rather that distributed according to seniority.
It will be difficult to persuade senior right holders that there are some problems on the river where seniority should not apply - or if it must, then perhaps senior users to should bear a larger burden for having been 'part of the problem' for a longer time. (That is not likely to fly.) But issues like system losses, the measurable losses from a warming and drying climate, and Indian water rights are really everyone's problem, regardless of seniority. (Fulfilling Indian 'Winters rights' has been regarded as the responsibility of the individual states, but Arizona has 22 of the 30 Indian tribes' reservations; just the currently decreed Indian rights would take up about three-fourths of the Arizona allotment of 2.8 million acre-feet. How to equitably handle those rights Basin-wide will be an interesting problem.)
We have indeed, however, reached a point where Old Man Prior is becoming more of a zombie law than a useful living body of law. We received many good principles and systemic practices from Europe's Scientific Revolution and Enlightenment, but I think the jury is still out on the efficacy of the practice of privatizing the commons.
Thank you very much for deepening our understanding of the lingering legacy of western settlement. Right after I prepared the blog, a major study appeared showing how much Colorado River water goes to cattle feed, although only one Western state, Montana, is among the nation's top ten beef producing states. Brian D. Ricter, et al, New Water Accounting Reveals Why The Colorado River Seldom Reaches the Sea, 5 Communications Earth and the Environment (2024). I have struggled with the question of "heritage" agricultural in the West for decades. I see a climate-change driven rationalization of Western irrigated agriculture that will leave it primarily concentrated in California's Imperial and Central Valleys, the Yakima Valley of Washington state, and the Snake River Plain of Idaho. Given the lack of a federal food policy, this rationalization will be market-driven unless farmers take a more active role in devising a more humane, federal retreat policy. I would very much value your thoughts.