MANAGING WATER RESOURCES IN THE AMERICAN WEST
| Jurisdiction | United States |
(Apr 2016)
MANAGING WATER RESOURCES IN THE AMERICAN WEST
Professor of Law
Colorado Law University of Colorado
Boulder, CO
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MARK S. SQUILLACE is Professor of Law at the University of Colorado Law School in Boulder, Colorado. He joined the faculty in 2005, and served as the Director of the Natural Resources Law Center until 2013. Before joining the Colorado law faculty, Professor Squillace taught at the University of Toledo College of Law where he was named the Charles Fornoff Professor of Law and Values. Professor Squillace has also taught at the University of Wyoming College of Law, and at Wyoming he served a three-year term as the Winston S. Howard Professor of Law. He is a former Fulbright scholar and the author or co-author of numerous articles and books on natural resources and environmental law. In 2000, Professor Squillace took a leave from law teaching to serve as Special Assistant to the Solicitor at the U.S. Department of the Interior. In that capacity he worked directly with the Secretary of the Interior, Bruce Babbitt, on a wide range of legal and policy issues.
I. Background
We often hear about a global water crisis, and California might be seen as ground zero the American version of the crisis. But in California, as in every other part of the world, the crisis is largely a management crisis.
Water resources are fixed and finite but abundant. Still, managing water is complicated not least because it is impossible to predict when and where the resources will be available. Water is highly variable over seasonal cycles and from year to year, meaning that the availability of water at any given place and at any given time is uncertain. And much of our water is unusable.
Aside from the uncertainties associated with the water itself, our legal system often fails to promote the efficient and fair distribution of water, thereby further complicating the problem of managing our water resources. And climate change adds an additional level of complexity and uncertainty that will likely hamper our ability to manage water effectively for many years to come.
II. Freshwater Resources
Before engaging on the technical and legal issues surrounding water management, it is helpful to understand where our water comes from.
• 97.5% of our water is saltwater
• 68.9% of the remaining 2.5% is tied up in glaciers and permafrost; and 29.9% of the 2.5% is groundwater
• Only 0.3% of this 2.5% in in usable surface water (rivers and lakes)
Another problem is with the distribution of water. Consider that nearly 90% of North America's fresh surface water is tied up in the Great Lakes Basin. That Basin is extremely compact, and as a result of the Great Lakes Compact, which was approved by the U.S. Congress and all eight Great Lakes states, Great Lakes water is largely unavailable to parties outside the Basin, even parties located outside the Basin but within the eight Great Lakes states.
III. The Hydrologic Cycle and the Law
Managing our water should reflect an understanding of the hydrologic cycle. While there are some relevant and important differences between surface and groundwater, the choice of establishing separate legal regimes is largely historical. A few modern laws take a unitary approach but most states still regulate ground and surface water separately
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To be sure, there may be some very good reasons to regulate isolated aquifers under a separate system but as a practical matter the same rules for obtaining permits, protecting other users in the system, and protecting public values will likely apply whether or not the surface and ground water resources are connected. Thus a single regulatory system, with selective adjustments to deal with things like aquifer depletion could easily be installed in most jurisdictions.
IV. Water, Geography, and Law
The riparian system historically dominated east of the 100th meridian. As described in more detail below, riparian law essentially takes a laissez faire attitude toward regulation and control of water resources.
In the east there was usually plenty of water, and often too much water to carry out the activities that the settlers wanted for their land. Much of the Eastern United States was drained and filled to accommodate farming. This resulted in a radical transformation of the Eastern United States from its natural condition. In particular, Eastern states, and especially the farm states, experienced a massive loss of wetlands. It led to a radical transformation of the ecological condition of the region.
The prior appropriation system has dominated west of the 100th meridian. As discussed below prior appropriation is a system that favors the earliest users ostensibly as a means of assuring the most productive use of limited water supplies. Not coincidentally, prior appropriation appealed to Western settlers because it protected them against later encroachment by future settlers.
"Reclaiming" the West has been much harder (and much more expensive) than draining the wetlands in the East. Despite hundreds of dams, some of an almost unthinkable scale, much of the West remains a vast undeveloped landscape. Importantly, limited, seasonal supplies, much of it stored during the winter months in the high mountains of the western United States, led to a much different response to water regulation in that region
V. Surface Water Law in the Western United States
A. Background. The English common law riparian doctrine was never well suited to the Western United States. Under the traditional form of that system, water rights depended on the ownership of riparian land. While many U.S. states eventually adapted their common law to allow "off-tract" use by riparians, non-riparians, had to wait for more significant reforms.
English riparian doctrine also protected the natural flow of waterways, but here again the American riparian doctrine rejected this restrictive approach was fairly quickly rejected in America in favor of a "reasonable use" standard that allows users to diminish the river's flow at least to some extent. In riparian jurisdictions, water rights are correlative with other riparians, and this means that water rights must be shared equitably.
None of this made much sense to those who settled the American West, especially in its vast arid interior. As became clear early on, the riparian doctrine
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deprived water users of any certainty over their access to water. A party might invest in an enterprise that requires water use only to find other riparian coming to the system later and demanding their share. Over time, this could become untenable, especially if water supplies were limited.
Perhaps even more problematic is the fact that riparian systems are reactive, not proactive. The only way to redress an injury is to go to court, which will engage in a balancing process leading to an unpredictable result. Moreover, a rebalancing is necessary every time a new user demands water. Notwithstanding all of its limitations, the riparian doctrine worked for many years in the Eastern United States because water supplies were abundant. Early on it became clear that it would simply not work in the West where water supplies were far more scarce.
The prior appropriation doctrine was borrowed from the mining camps of the Western United States. These mining camps essentially brought a system of government regulation to mineral development in the territories that were otherwise largely devoid of any significant government presence. The mining camps and their legal regimes protected miners who located valuable mineral deposits under a "first in time, first in right" policy. But miners also needed water to process the ores and the mining camps adopted the same system for water that was followed for the minerals themselves - "first in time, first in right." When the homesteaders and agricultural settlers followed the miners out West they quickly recognized the advantages of the priority system for distributing water rights, and before long prior appropriation became the dominant water law in the Western United States.
2. Permit Systems. The earliest iterations of prior appropriation depended on self-help. Someone who wanted to use water would simply construct a diversion on stream and take the water. If a dispute arose, the parties would sort things out by tendering evidence as to who acted first. Because of the difficulty inherent in keeping track of actual physical priorities based upon diversion dates, prior appropriation soon evolved to require permits to memorialize rights. Elwood Mead, the first State Engineer in Wyoming wrote the first comprehensive state water code and adopted a robust water rights permitting system. Under Wyoming's system and virtually every one that followed, parties applied for a permit to divert water from a particular water source, and to put water to a "beneficial use" on a particular tract of land.1 Beneficial use is often described as the "basis, the measure and the limit" of right, and it is generally understood as a principle that prevents waste. Once the permit is approved, the applicant may proceed to apply the water on the land and for the use for which it was approved. Following the actual beneficial use of the water, the applicant may seek a
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water right, which is generally recognized as a vested property right, albeit one that is limited to the use of the water. The water user never truly owns the water itself.
Water rights in prior appropriation states are deemed "appurtenant to the land" and under the original Wyoming code written by Elwood Mead, these rights could never be transferred. Mead was concerned about speculators who might claim more water than they needed only to turn around and sell their excess to other parties. See Elwood Mead, Irrigation Institutions, at...
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