Western Water in the 21st Century: Policies and Programs That Stretch Supplies in a Prior Appropriation World

Date01 April 2010
Western Water in
the 21st Century:
Policies and
Programs That
Stretch Supplies
in a Prior
by Adam Schempp
Adam Schempp is Director of the Western Water
Program at the Environmental Law Institute.
Editors’ Summary
e states of the Western United States face numerous
water management challenges, now and in the com-
ing years. Legal hurdles to sustainable water manage-
ment are posed by the doctrine of prior appropriation
and its resulting policy constructs, including forfeiture
and abandonment, time-intensive transfer and change-
of-use procedures, and restrictions on using conserved
water. However, strategies for addressing these issues
have been implemented in varying forms across the
West, each under unique circumstances and with dif-
ferent degrees of success. e policies and programs
included here are not intended to be comprehensive, but
rather a selection of illustrative examples that modify
the prior appropriation system in a way that has led or
could lead to more ecient, adaptive, and sustainable
water use decisions.
Water always has been the lifeblood of the western
United States.1 But its value is now greater than
ever, a trend that shows no sign of abating. As
populations continue to rise, regional, national, a nd global
demand for the region’s resources, including water and prod-
ucts that rely on it, is also growing. With more people come
greater water needs for drinking, bathing, laundry, private
lawns, and public parks. People also demand groceries,
energy, processed materials, services, and recreation, most of
which require water inputs. Additionally, the ecosystem ser-
vices provided by a healthy riparian environment, including
water quality, ood protection, and water storage, depend
upon sucient instream ows. us, there are numerous
demands on water supplies, but a lack of clear trade-o alter-
natives since humans appear to need them all.
Increasing water demands are not the only challenge.
Greater uncertainty in water supply mea ns an ever-cha ng-
ing baseline for meeting t hose demands. Climate c hange
models predict an intensication of the water c ycle, pro-
ducing longer drought s and more substantial oods. R is-
ing temperatures already h ave begun to cau se earlier a nd
more intense snowmelt, the source of much of t he West’s
water, leavi ng less water available for the late sum mer and
fall if it ca nnot be captured. Additiona lly, recent data show
that the average annual ow of the Colorado River was
overestimated at the time the Colorado River Compac t was
drafted, sug gestin g far less supply in the f uture than those
states rely upon.
Increasing demand and uncertain, e ven declining, sup-
ply means that we need to gure out a way to “do more
with less” or else face very dicult trade-o decisions.
Generally speaking, doing more with less water requires
improving eciencies in use a nd in supply management.
Both approaches nec essitate adapting policies a nd practices
to changing circumstances in t he short a nd long term, as
well as aligning incentives, nancial and other wise, with
preferred practice s.
A number of lega l and nonlega l factors contribute to the
state of water management. e laws governing water usage
are important for exibility and guidance. In that realm,
water districts, t he federal government, and interbasin and
1. e 12 western states included in this study are Arizona, California, Colorado,
Idaho, Montana, Nevada, New Mexico, Oregon, Texas, Utah, Washington,
and Wyoming. Selection and assessment of the examples below was the re-
sult of statutory review, analysis of legislative history, and secondary source
research by the Environmental Law Institute, as well as personal communica-
tion with state engineers; sta of state agencies, municipal water providers, and
nonprot organizations; representatives of farming interests; and others from
the 12 states studied.
Western Water
in the 21st Century: Policies and Programs at Stretch Supplies
in a Prior Appropriation World can be downloaded free of cost from
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
4-2010 NEWS & ANALYSIS 40 ELR 10395
interstate transfer agreements impose legal constraints on
water management, but the prior appropriation system,
the predominant legal foundation for water allocation in
the West, is a critical consideration. While adaptable, prior
appropriation is rule-bound, founded on the historical order
of rights and quantity of usage. An imperfect understanding
of the a mount of water historically consumed (as opposed
to what returns to the stream), coupled with the preemi-
nent rule that “thou shall not injure the rights of other water
users,” has fortied established practices behind a series of
legal barriers, posing a signicant obstacle to improving e-
ciency in use.
Perhaps best known of these laws are the doctrines of
forfeiture a nd aba ndonment. Under those doctrines, water
rights that are not put to use may be recovered by the state
and reallocated to new users; hence the adage, “use it or lose
it.” ese doctrines are meant to discourage speculation and
maximize water usage. While the anti-speculation aspect of
these doctrines may retain some value, continuing to require
historic levels of water u sage (or else risk the loss of the
unused portion of t he right) creates a disincentive to con-
servation and sustainable water practices. In addition, if the
use of water is changed to another purpose, it may only be to
one of a few choices or aga in risk the loss of the right. is
ensures that water continues to be put to productive uses, but
current understanding of hydrology and ecosystems suggests
that productive use is more than agriculture, industry, or
drinking water. Instream ows, source exchanges, and water
banking also can be important to protecting the long-term
quantity and quality of water supplies.
Reducing the disincentives to susta inable water manage-
ment posed by forfeiture is on ly one step toward a prior
appropriation system aligned to meet the West’s water chal-
lenges. Obtaining changes in the purpose of use, place of
use, and point of d iversion are di cult under traditional
rules. While these laws protect the rights of other water
users from injur y, they also delay the proc ess and increase
the cost of ch anging a right. is limits the ability of water
managers to adapt, encourag ing permanent rat her than
temporary tran sfers and reducing the potential for a respon-
sive market. It also aects the incentive for eciency. Water
costs for buyers a nd opportunity costs for sellers can be big
nancial incentives for discovering ways to operate with
less water. Quick yet thorough transfer reviews, responsive
transfer agreements, sucient third-part y protections, and
the aut hority to tr ansfer or otherwise use conserved water
(from reduced consumptive use and evaporative losses) cre-
ate incentives for ecient and eective water use under any
hydrologic condition.
Particularly in recent years, western states have amended
their laws to reduce the disincentives of prior appropriation
to sustainable water usage and supply management and
allow incentives for stretching supplies to more easily inu-
ence the decisionmaking of right holders. ese legal reforms
have varied from state to state in objective, form, and suc-
cess. Given the dierence in specic laws and regulations,
as well as growth pressures and hydrologic circumstances,
there is not necessarily a one-size-ts-all reform of prior
appropriation, but the states can learn from the experiences,
both good and bad, of their regional neighbors. Eective
laws that are in line with social, economic, and environmen-
tal objectives can create greater resilience to inevitable water
crises, and ultimately improve the sustainability of not only
the water supplies, but the societies and environments that
rely on them.
I. Reducing the Risk of Forfeiture as a
Disincentive to Sustainability
e prior appropriation system operates as a rst-come, rst-
served method of water a llocation. Essentially, those with
water rights to a stream or river are given priority based upon
the date of the water right. Traditionally, the oldest right is
completely fullled, then the next oldest, and so forth down
the line until there is no water left to allocate. Because older
(senior) water rights yield more water in a given year than
do newer (junior) rights, senior rights are more valuable. In
practice, th is can mean the dierence b etween three tons
of alfalfa per acre with irrigation that last s through the end
of September for a senior right holder, a nd two tons per
acre with irrigation through the middle of July for a junior
right holder.
e doctrines of abandonment and forfeiture are designed
to assure that water is actually put to a productive end and
not merely the subject of hoarding or speculation. ey orig-
inated in a period when ma ximizing the short-term benets
of natural resources was avidly promoted. e state wanted
to give rights to those individuals who would use the water.
Water rights, or even just portions thereof, that are not put to
use are subject to permanent recovery by the state a nd real-
location to new users. “Abandonment” commonly requires
intent by the right holder to no longer use the right. “For-
feiture,” however, can occur regardless of intent if nonuse
extends beyond a statutory forfeiture period, which ranges
from ve to 10 years, depending on the state. ose states
without explicit forfeiture doctrines commonly have a stat-
utory abandonment period by which intent to abandon is
inferred from the duration of nonuse, eectively serving the
same function as forfeiture.
While these doctrines still provide some benet, they also
pose signicant obstacles to sustainable water management.
e risk of losing a water right creates a strong disincentive
against using it for an unsanctioned purpose or simply reduc-
ing its use. us, all else being equal, water right holders will
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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