Priority: the most misunderstood stick in the bundle.

• Author: Hobbs, Gregory J., Jr.
• Position: Water rights - Colorado

1. INTRODUCTION

   A decade has passed since Charles Wilkinson eulogized the passing of Prior Appropriation in 1991. (1) I rejoined that Prior may have died but his progeny lived on. (2) A year later, the authors of the "The Long's Peak Report" proposed a series of national water policy initiatives to the incoming federal administration. (3) I rejoined that the report presented a one-sided view of water policy that excluded other viewpoints, particularly viewpoints of water right owners. (4) Michael Blumm and I then engaged in a debate over the Long's Peak Report. (5) Two years before Wilkinson's eulogy, Bennett Raley (6) and I authored two articles addressing the role of water quality law in protecting rather than restricting the exercise of water rights. (7)

   In 1996, I transitioned from representing water clients to being a State Supreme Court Justice. In this role, I have had the privilege of authoring water opinions (8) and several water law articles, (9) as well as participating in water decisions authored by other Justices. (10) This work constantly reminds me how vital is the role of water law and policy, and how misunderstood is the role of water rights priority.

2. LOOKING BACK

   Help from History Please help me know it happened, That life I thought we had-- Our friends holding out their hands To us-- Our enemies mistaken, infected by Unaccountable prejudice-- Our country benevolent, a model For all governments, good-willed Let me retain what ignorance it takes To preserve what we need-- A past that redeems any future, (11) William Stafford In concluding his eulogy, Wilkinson wrote, "Prior has now passed on." (12) "I wonder whether the reformers ... now that they will have to replace Prior ... can offer up still other ideas as bright." (13) Prior's wife, Ramona, truly lamented the passing of this antiquated, lovable, often wrong-headed, but genuinely motivated frontiersman Prior's "most luminous idea," said Ramona, was "that sense of community ... he most passionately cared about." (14)

   Taking up the theme, I envisioned the elopement of Prior's grandson, Beneficial, with Miss Trust. The young Miss was a stunning but pampered member of the California Trust family, generous to a fault in her willingness to give away the property of others. Nevertheless, the union of Beneficial and Trust brimmed with the generative seed of enduring western optimism. The song of their union sounded like this:

   Beneficial: "Waste Not, Want Not" Trust: "Let it Be, Let it Be" Beneficial: "Use Only What You Truly Need" Trust: "Efficiently, Efficiently." Could such a marriage of tradition and reform occur voluntarily, or only with a gun to Beneficial's head? The Long's Peak Report, it seemed, favored a forced trip to the altar of reform. Uncle Sam would command Beneficial's consent to water reallocation, if necessary, to serve more contemporary values like stream flow restoration. Duty-bound to represent my client's interest in a voluntary match, I insisted on respecting Beneficial's inheritance of Prior's rights. (15) Blumm advocated for the bride, the shortchanged latecomers, instream uses, and Indian tribes. (16)

   I attempted to regain the high ground by harnessing progressive conservation to prior appropriation. (17) Blumm retorted that I had mounted the steed backwards, stating that "Pinchot's call for multiple use was not simply a call for development of water resources, it was a call for centralized, federal regulation of waterways." (18)

   A decade later, though at least my advocacy appears to have been overheated, Blumm and I had the privilege of a timely and significant debate. I must concede that centralized federal planning and development was at the core of the Reclamation Program. However, it was the prior appropriators who had invited the federal relationship; they needed national help to build the waterworks they required to make theft water uses. Because a state law water right arises only by placing water to a beneficial use, and because the decree for a perfected water right confirms the amount of depletion from the stream that can be taken in priority as a property right, (19) the creation of new uses under the appropriation doctrine depends upon the construction of waterworks to secure new water rights. Section 8 of the Reclamation Act (20) integrates the federally constructed projects into the system of state priority administration. (21) The result is the federal "they" legally becomes "us."

   The reclamation marriage was so successful that it provoked--because of river over-regulation--the paradigm shift Wilkinson and Blumm heralded as ending Prior's era in the early 1990s. The 1964 Wilderness Act, (22) 1972 Clean Water Act, (23) 1973 Endangered Species Act, (24) and 1976 Federal Land Policy and Management Act (25) have most notably piled federal regulatory sticks atop the state water rights bundle. A reluctant marriage, perhaps, but a union nonetheless--for better or worse! A recent water and growth study of the Natural Resources Law Center observes:

   Rather than debate the merits of prior appropriation as an allocation system, perhaps a more practical way to frame this issue is to acknowledge that issues of reallocation are at the core of most water disputes. Whether "Prior" is, or should be, dead is not the issue before the water management community; the issue is how to modernize water law to deal with issues of reallocation. (26) In my view, this graceful acknowledgment of prior appropriation's continuing role in meeting human and environmental needs is a constructive context for twenty-first century water law and policy.

   To place the discussion of priority's role in context, I would summarize the major active currents of western water law as the following: 1) Congress severed water from the title to public lands and permitted states and territories to establish water rights under their own laws; (27) 2) the western states chose prior appropriation as basic water allocation and administration law for natural stream waters; (28) 3) under prior appropriation law, water remains a public resource, the states continue to create property rights for the use of this resource, and beneficial use is the basis, measure, and limit of these water rights; (29) 4) in times of short supply, state water officials have a duty to curtail junior water rights in favor of senior water rights; (30) 5) the reserved water rights of the United States and of Native American Tribes are entitled to recognition and administration along with all other rights in order of their adjudicative priority; (31) 6) enforceable interstate water compacts and equitable apportionment decrees allocate water between the states with congressional approval; (32) 7) new water demand is created predominantly by the public sector, namely municipalities and special districts that serve the West's municipal and commercial growth; (33) 8) federal environmental laws significantly constrain new development of surface water resources, shift water supply planning towards increased reliance on groundwater, change water rights from their prior uses, and require implementation of conservation measures; (34) 9) the changing values and customs of the people of the West--and of the United States--include clean and flowing water for recreation, instream flow, and restoration of disturbed riverine habitats; (35) and 10) optimum use, efficient water management, and priority administration are fundamental adaptive principles of western water law that are increasingly important to meeting water needs in the twenty-first century. (36)

3. PRIORITY'S CONTINUING ROLE

   Practically, in that country the right to water is acquired by priority of utilization, and this is as it should be from the necessities of the country.... If there be any doubt of the ultimate legality of the practices of the people in the arid country relating to water and land rights, all such doubts should be speedily quieted through the enactment of appropriate laws by the national legislature. Perhaps an amplification by the courts of what has been designated as the natural right to the use of water may be made to cover the practices now obtaining; but it hardly seems wise to imperil interests so great by intrusting them to the possibility of some future court-made law. (37) John Wesley Powell Priority's continuing role starts with a few basic principles. First, surface water and tributary groundwater are public resources, available for public or private purposes by appropriation and subject to administration in priority. (38) Second, water rights are decreed to structures and points of diversion. (39) Third, its priority, location of diversion at the source of supply, and amount of water for application to beneficial uses are the essential elements of a water right. (40) Finally, the purpose of adjudication is to assign priorities of use; a decree confirms the existence of the water right but does not create the right. (41)

   The priority of a water right vis-a-vis other water rights depending on supply from the same natural river basin within the state is a function of appropriation and adjudication. The appropriation date is generally set by the date of the appropriation, which is subject to adjudication. However, failure to adjudicate one's water right in the first available adjudication can result in postponement of the priority date to the year in which the application for adjudication was filed. (42)

   Legal and practical contradictions attend a discussion of priority's place in western water law and policy. The priority of a water right is both its most important and its most controversial feature. Priority is the most valuable stick in the bundle of a water right, but enforcement of senior priorities may be honored more in rhetoric than in curtailment of junior uses. (43) Theoretically, priority determines the allocation of unappropriated water, but it may not apply in some states to the...