by Curt Burnett on July 29, 2009

“There is keen competition among water users”

from the Introduction to “Water Law”, D. H. Getches

OK, would-be water wonks, what does the title stand for? Don’t know? Read on!

One painless way to start getting acquainted with water law is to read Ten Water Laws of the West, from the satirical website Frumious Bandersnatch. Not surprisingly, the author is a “recovering attorney”, and he throws together some laws (as in Murphy’s) with Laws (as in A-B Cattle Company vs. United States) of water in the western states.

So, get comfortable, we’ll be here for a bit. There are three basic approaches to water law in the United States. The eastern states follow a system called “riparian”, which I’ll cover in the next post. It’s older, and evolved from English common law. The driest states of the west use an “appropriation” system. This was developed more recently (mid-to late 1800’s) and follows a system that miners came up with as they worked claims on federal lands. The Pacific coastal states and some of the semi-arid central states use a blend of the two, and these are called “hybrid” systems.

The term “appropriation” comes from the Doctrine of Prior Appropriation, also known as “First in Time, First in Right (FITFIR). What this means is that whoever started diverting the water first for a “beneficial use” has a more “senior” right to it forever after, and can force more “junior” users to stop taking water until the senior rightholder has all that his/her right allows.

In water discussions in the West, the term “beneficial use” comes up frequently since it’s a key feature of an appropriative system. Beneficial uses come in a wide variety, and can include mining, irrigation, domestic uses, industry, and more recently, wildlife and recreation.

An important corollary is that the actual volume of water connected to a right is determined by the beneficial use, and can change over time. A key concept is that waste is not a beneficial use. So as irrigation methods become more efficient, in theory the amount of water tied to a right to irrigate a certain acreage could actually decrease. In practice there hasn’t historically been much monitoring of the volume diverted and its connection to the beneficial use, but with increased stress on the resource overall this is beginning to become an issue. Hence the move towards requiring metering of irrigation water.

If you read the earlier post about Prof. Young and his presentation on Australia, you may remember that one of his recommendations was that water rights be disconnected from the land, expressed in volume terms (acre-feet or gigaliters, for example), and tied to individuals who can sell or trade them. You can already see some ideas here that would change an appropriation system of water law.

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