Reforming a western institution: how expanding the productivity of water rights could lessen our water woes.

• Author: Behnampour, Leila C.

1. INTRODUCTION II. THE DOCTRINE OF PRIOR APPROPRIATION: A WESTERN INSTITUTION III. CONSERVED WATER STATUTES: INCENTIVES TO MEET INCREASING DEMAND A. How Conserved Water Statutes Integrate with Principles of Prior Appropriation 1. Addressing the Disincentive to Conserve 2. How Return Flow Impacts the Scope of the Conserved Right B. States that Have Successfully Enacted Conserved Water Statutes 1. California 2. Montana 3. Washington C. Oregon's Conserved Water Program.. A Blueprint for Allocating Conserved Water 1. Lessons Learned from the Earlier Version of the Law 2. How the Conserved Water Program Works 3. Success in Oregon IV. WATER LAW IN COLORADO A. Water Rights Transfers in Colorado B. No Right in Salvaged Waters C. Failed Attempts at Conserved Water Legislation D. Arguments Against Conserved Water Legislation in Colorado V. LEGISLATIVE INCENTIVES TO CONSERVE IN COLORADO A. How Conserved Water Legislation Should Work in Colorado B. Alternatives to Conserved Water Legislation 1. Grant Programs to Foster Alternative Water Transfers 2. More Aggressive Waste Enforcement VI. CONCLUSION I. INTRODUCTION

   Water is a finite resource, especially in the Western United States. Water scarcity has been at the forefront of Western water law ever since its emergence. (1) The historical underpinnings of Western water law, however, were premised on harnessing water for development, encouraging out-of-stream use, and diligently protecting vested rights (2)--principles that often conflict with conservation. As Westerners face the growing reality of even scarcer water supplies, the relatively recent onset of conclusive data on climate change, and rapidly growing populations, many states are confronted with tough choices to determine how to ensure an adequate supply of water.

   Although the majority of the land area of the Western states is arid or semi-arid, (3) ninety percent of the consumptive use of fresh water in the West supports agriculture. (4) Whether Western states should continue to irrigate in areas that receive less than average rainfall is a legitimate question; however, that issue is beyond the scope of this Comment. The fact remains that agriculture exists in the West, and although there have been numerous agriculture-to-urban water transfers, (5) the institution of American agriculture in the West is not going anywhere fast. With the continuance of agriculture in the West, there is potential for tremendous water savings through conservation. Studies have shown that efficiency improvements to irrigated agriculture have the potential to create the greatest conservation of water compared to improved efficiencies in other water uses. (6) Techniques to improve agricultural efficiency include using drip irrigation, laser leveling fields, water delivery scheduling, mixing crops and planting patterns, and reducing seepage and evaporation through ditch lining and pipes. (7) Thus, with the implementation of irrigation efficiency improvements, agriculture can remain an important institution in the West, but it can also be a means to free up water for additional uses.

   Improving irrigation efficiency to release water for other uses is not as simple as it may seem. In the West, rights to use water are based on the system of prior appropriation. (8) Prior appropriation, like irrigated agriculture, is a Western institution, and its complex laws may hinder water conservation. (9) For example, under prior appropriation, an appropriator obtains a water right from the state for a fixed amount of water necessary to accomplish a beneficial use. (10) Any surplus water above the amount needed to accomplish the beneficial use is technically not part of the water right; thus the state may reduce the amount of the water right to conform to the amount of water actually necessary to accomplish the beneficial use. (11) Thus, if a farmer improves irrigation efficiency, meaning he or she accomplishes the same beneficial use with less water, he or she is not entitled to use the conserved water because the water right only extends to the amount of water necessary to accomplish the beneficial use. As a result, prior appropriation laws create a disincentive to improve efficiency because the appropriator is not legally entitled to the conserved water. (12)

   Some Western states have adapted their prior appropriation laws to avoid the harsh consequences under traditional prior appropriation law by enacting conserved water statutes. (13) Conserved water statutes modify prior appropriation law to allow an appropriator to implement efficiency measures that conserve water and grant the appropriator a separate water right in the conserved water to use, sell, lease, or otherwise transfer. (14) In some states, a percentage of the conserved water must go to the state for protection as instream flows or to supply other public purposes. (15) By rewarding efficiency by creating a new water right, appropriators have an incentive to become more efficient. However, because efficiency improvements may impact other users on the stream, the state must evaluate a conservation plan to ensure that the conservation measures will not adversely affect other appropriators on the stream. (16) The result is a system that rewards efficient use of water, flees water up for additional uses, and helps states meet increasing water demand--all without harming other water users.

   Nonetheless, some states, including Colorado, have rejected measures to reward conservation despite the continuing need for water. (17) Population statistics indicate that Colorado is the third fastest growing state in the nation. (18) Between 1990 and 2000, Colorado's population grew over thirty percent. (19) The growth has slowed down somewhat, but between 2000 and 2009, the population still grew by nearly seventeen percent. (20) By 2050, Colorado's population is estimated to more than double from its current 4.8 million to 10 million people. (21) Colorado uses eighty-five percent of its water for irrigation. (22) Improving irrigation efficiency could be a significant means of freeing up water for under-watered crops, other consumptive uses, and improving instream flows. (23) Although Colorado legislators have considered legislation several times that would allow an appropriator to obtain a right in conserved water, (24) they have rejected every bill. (25) However, it has been over fifteen years since the Colorado House of Representatives rejected the last attempt at conserved water legislation, (26) and Colorado's water woes have not lessened. In fact, water scarcity has only become more imminent in the state. (27)

   This Comment examines how conserved water statutes reward appropriators for becoming more efficient and argues that Colorado should enact similar legislation in order to further its policy of maximum utilization of water resources. Part II provides a brief description of the prior appropriation system that governs water rights in the West. Part III examines the conserved water statutes that four Western states have implemented, and reviews the successes and failures of the most comprehensive and widely used program in Oregon. Part IV provides a brief overview of the basic principles of Colorado water law, the failed conserved water legislation, and arguments against reconsidering such legislation. Part V argues that conserved water legislation could integrate with Colorado's prior appropriation system and provides basic guidelines on how legislation could work in Colorado. This Comment concludes that the most comprehensive, efficient, and effective way to conserve water in Colorado to help meet its growing needs is through conserved water legislation that promotes and rewards efficient water use.

2. THE DOCTRINE OF PRIOR APPROPRIATION: A WESTERN INSTITUTION

   The doctrine of prior appropriation originated in the Western United States out of necessity to protect water rights for miners in the mid-nineteenth century. (28) To this day, most states west of the one-hundredth meridian use prior appropriation to allocate water rights. (29) The doctrine of prior appropriation is premised on three main concepts: 1) first in time, first in right; (30) 2) beneficial use without waste; (31) and 3) use it or lose it. (32) Although the doctrine in practice may seem like an unchanging institution of Western water law, it is not entirely immune to modification. (33) For example, many states have modified the doctrine within the last twenty years in order to integrate principles of conservation and changing needs for water, such as preserving instream flows for recreation, fishing, wildlife, and pollution dilution. (34)

   First in time, first in right refers to the priority system of the doctrine of prior appropriation. (35) Appropriators are organized based on the date of their appropriation; the senior water rights holder has the earliest priority date and is first in line to receive his or her entire water right depending on water availability. (36) Thus, the priority system manages water in times of shortage. (37)

   Second, the water rights holder must put the water to beneficial use without waster Beneficial use is a murky concept. Although some state legislatures have attempted to define it, courts have been the primary entities to construe the scope of the term. (39) Essentially, beneficial use means the non-wasteful use of water for productive purposes. (40) Courts or agencies have the ability to cut back a water right by the amount of water an appropriator is wasting. (41) Consequently, an appropriator has no right to waste water, (42) nor to use water for a different use without prior state approval. (42)

   Third, the use it or lose it component requires appropriators to put their water to continuing beneficial use. (44) A state can reduce or eliminate a water right based on the amount that has not been put to use. (45) In other words, a water right is a defeasible usufructuary right; the right...