Legal convergence of East and West in contemporary American water law.

• Author: Abrams, Robert Haskell

Before setting out on this Article, I would like to take this opportunity to express my sense of privilege in being able to write in the company of so many scholars and friends in tribute to the many contributions of Janet Neuman and James Huffman to the fields of water law and property rights more generally. I always have benefitted when reading their works.

1. INTRODUCTION II. INTEGRATING LEGAL ENTITLEMENTS TO USE SURFACE WATER AND GROUNDWATER AND TWO INSTRUMENTALIST SOLUTIONS TO THE LINKED PROBLEM OF FULL UTILIZATION III. ELIMINATION OF SITUS OF USE REQUIREMENTS--RIPARIANISM CATCHES UP IV. RECOGNITION OE INSTREAM AND COMMUNITARIAN VALUES--PRIOR APPROPRIATION CATCHES UP (AND OREGON GETS AHEAD) V. CONCLUSION I. INTRODUCTION

   Consider two constructs--legal instrumentalism and legal convergence--and their possible application to American water law. In a variety of ways I have long expressed the view that water law develops in an instrumentalist manner that permits society to make the most important contemporary uses of water resources. (1) As an initial form of convergence, a brief recollection of the formative stages of Eastern and Western water law shows them both to be instrumentalist to the core--rejecting law that did not suit the needs of the then-pressing situation in favor of water law that supported developmental needs.

   In the East, for example, when a vitally important need was the repeated use of water for generating power for milling in the early nineteenth century, the water law was crafted, legislatively and judicially, to permit seriatim use of the water by many mills as the water flows from its headwaters to the sea. (2) The so-called Mills Act (3) "solved" the problem of enjoinable trespass of adjacent parcels inundated by mill ponds by granting the equivalent of private condemnation to the millers. (4) Similarly, case law allowed new entrant millers to reasonably alter the flow regime, actions that would have been enjoinable by adversely affected existing millers under either English natural flow riparianism or a rule based on prior occupancy. (5) Physically, this occurred when the upper, later-in-time miller interdicted the flow completely to fill their mill pond, preventing downstream users from having enough water to drive their mill. (6) In the nineteenth century West, if the most important use of water was to support irrigation of the early settlers of the West, where rainfall is scarce and streams are few and far apart, the potentially "inherited" riparianism of the East had to be rejected in favor of a system that met the needs of those settlers. It took the Territorial Colorado Supreme Court in 1872 only a single phrase in prefacing its decision in Yanker v. Nichols, (7) to announce things necessarily were going to be different when it penned the words, "[i]n a dry and thirsty land." (8) The necessity of supporting societally vital use of water away from riparian locations trumped even the most traditional private property rights of neighboring landowners. Functioning similarly to the mill acts in the East, Yanker recognized the need to have private rights of way to transport water to its place of use in the West by subjecting intervening landowners between the stream and situs of use to servitudes in favor of those using the water resource. (9) In almost all western states the same imperative led to the eventual rejection of riparianism in favor of prior appropriation. (10) The first and most eloquent statement of that radical departure from riparianism was judicially announced in 1882 in the landmark case of Coffin v. Left Hand Ditch Co. (11) Thus, instrumentalism has been alive and well in all branches of American water law for centuries.

   The concept of legal convergence suggests that the law governing various legal fields tends to converge over time. (12) Sovereign jurisdictions are not legally compelled to follow each other's lead, but over time, they tend to do so. (13) Without pretending to be a trained comparativist, I would describe one of the principal theories supporting convergence as a sort of legal Darwinism. The legal solution that is best adapted to solving the problem eventually becomes the dominant approach that out-competes less robust legal solutions. (14)

   Even a moment's reflection on those two constructs--instrumentalism and a Darwinist-leaning theory of legal convergence--reveals their underlying common ground. Both exhibit a confidence that in matters of societal importance, such as the allocation of scarce water resources, the law will gravitate toward and converge on the most effective legal doctrines and solutions. (15) On the surface, of course, claiming an instrumentalist convergence of East and West in American water law is outlandish. The two regions could scarcely have Water law that is founded on more divergent organizing principles. The entire water economy of the West is cantilevered precariously on the water rights created on the basis of priority of use. (16) Much of the East still adheres to the vaguely defined water sharing required by common law reasonable use riparianism. Since the outcome in any particular case of user conflict is so fact-intensive and hard to predict, (17) as the competition for water increases, a number of states are adopting administrative permit systems, usually called "regulated riparianism," (18) that award users durationally limited permits to use specified quantities of water for the expressly permitted uses. (19) In specifying quantities, type of use, and place of use, regulated riparianism borrows some of the hallmarks of water rights created under prior appropriation. Regulated riparianism remains true to its roots, however, by maintaining the vernacular and conceptual underpinnings of reasonable use that is associated with riparianism; uses must be "reasonable" to serve as the basis for obtaining a permit, and what is reasonable takes into account the state of the water source and the demands of others for its use. (20) At its core, however, regulated riparianism separates itself from prior appropriation because the usufructuary rights it creates are for a limited time, so that when permits expire new entrants are in a position to seek allocation of the scarce water resource on the basis of a single set of standards. Like the reasonable use riparianism from which it emerged, regulated riparianism assesses permit applications with reference to current conditions on the watercourse, permitting reallocation of the water on a rolling basis. (21)

   Despite their ingrained historic and systemic differences, there are several ways in which both East and West can be seen to be facing similar problems and have adopted similar legal responses that accomplish the same result in the two different legal paradigms. The nineteenth century examples, cited earlier, are a good example of parallel legal developments (granting water users a de facto power of private condemnation) in the two systems, solving similar problems (third party property rights) that otherwise would thwart critical water-based development. This Article seeks to explore a small number of more contemporary converging or at least parallel developments of the water law in the East and West.

   The convergence is not total and there is virtually no likelihood that the West will ever abandon prior appropriation or that the East will adopt a system in which priority is determinative. Nevertheless, this Article will survey three major areas where important parallel adaptations have been accomplished or are underway. These are:

   * Integration of surface water and groundwater and obtaining full utilization;

   * Elimination of situs of use restrictions; and

   * Protection of instream and other communitarian values.

   Each of the developments is chosen to exemplify a slightly different dynamic: the first where both doctrines had to adapt to hydrologic reality, the second and third, where riparianism and then prior appropriation effectively repudiated a fundamental principle of their system and adopted the position that had long been a tenet of the other system.

   In discussing the responses of East and West in each of these areas, it is necessary to keep in mind that water law is primarily state law, so that it is likely that the course followed by one state in a region will vary at least slightly from the course taken by other states in the region. Similarly, it is actually the case that not all states in either region have resolved the problems presented in the areas being reviewed. Rather than cataloging each state's approach, what I will do is treat the "law" of the East as being embodied in the American Society of Civil Engineers (ASCE) Regulated Riparian Model Water Code, since that is the model to which I think the states of the East will gravitate. (22) In the West, I will give examples of adaptations in different states that I think exemplify the ability of prior appropriation systems, within their doctrinal contexts, to address the problem areas in the same way as does the East.

2. INTEGRATING LEGAL ENTITLEMENTS TO USE SURFACE WATER AND GROUNDWATER AND TWO INSTRUMENTALIST SOLUTIONS TO THE LINKED PROBLEM OF FULL UTILIZATION

   In 1843, the renowned English case of Acton y. Blundell (23) included the famous passage explaining that the movement of groundwater was unknowable and, therefore, there could be no legal consequence associated with use of groundwater. (24) That decision effectively severed the law of surface water from the law of groundwater for almost 100 years, despite the implausibility of the "unknowability" premise, even at the time it was penned. (25) As in England, the independence of surface water law and groundwater law persisted in most American jurisdictions until the late twentieth century despite the certainty provided by the science of hydrogeology several decades earlier that surface water and groundwater were intimately linked. (26) The degree...