In a 1991 article, Charles Wilkinson pronounced the Old Prior water rights doctrine dead after a run of 151 years. To paraphrase what Mark Twain once said about a premature eulogy, the report of Prior's death "was an exaggeration." The doctrine, born in the gold mining camps of California in the late 1840s, remains the foundation of Western USA water law, even though its original purpose is increasingly irrelevant to the modern West.
A prior water right means the first person to use or divert water for a beneficial purpose holds that right as long as it is used beneficially: "first in time, first in right". It also determines who gets water during times of shortage. In 1935, the United States Supreme Court held, that Congress had ceded control of western waters to the states in a series of late 19th acts, The Supreme Court applied its own narrow reading of history. Justice Sutherland thundered that the "future growth and the well-being "of the inner Mountain West "depended on a complete adherence to the law of prior appropriation." Resolving conflicts over water through the courts is, unfortunately, the default approach in America's West.
The assumption that the West would continue to grow primarily as a center of irrigated agriculture is no longer true, although irrigation remains important, especially in California, Idaho, and Washington state. Today, the modern West, the country's most urbanized area, faces three interrelated challenges. The first is global climate change. The international community has failed to halt greenhouse gas emissions, so the water-stressed West is left to adapt to a drier and hotter climate. A recent University of California study summed up the results of the suicidal combination of groundwater mining and climate change for the San Joaquin Valley: "[W]hen considered cumulatively over the 12-year study period, this demand exceeds the storage capacity of the valley's five largest reservoirs combined."
The second is continued urbanization throughout most of the region. Much of the West is attractive to people who want outdoor recreation access and milder winters. Air conditioning, large dams and reservoirs, and groundwater mining have allowed urban areas to ignore the natural limits on growth and cater to those seeking to escape harsh winters and enjoy multiple outdoor recreational options.
Finally, agriculture is in its third retreat. The first occurred in the late 19th century. Settlers were induced by the railroads to farm the areas between the Missouri River and the Pacific Coast on the bogus scientific theory that rain follows the plough. Dry years in the 1890s disproved the theory and ultimately led the federal government to promote agricultural settlement. The drought triggered the expansion of irrigation based on the Reclamation Act of 1902. The 1930s Dust Bowl reinforced the notion that Western agriculture requires substantial government support and subsidy. The Big Dam era veined the West with carry-over storage reservoirs. Professor Stephanie Stern wrote in a forthcoming article, that "[a] third wave of agricultural drought retreat is now occurring across the West. In response to the current mega drought, farms are collapsing, fallowing all or most of their crops, or struggling to relocate operations. Most western farms lack the technical expertise and funds to relocate to water-rich regions, or to switch to less thirsty crops or non-agricultural sources of revenue. Retreat has been ad hoc and painful, with many small farmers and ranchers draining their savings only to collapse in the end. The federal government, so generous with subsidies for maintaining agriculture, has turned a blind eye to support for relocating it."
Legally, the West faces a paradox. Western water users and state officials accept that climate change is real. But they are reluctant to address the elephant in the room : prior appropriation has resulted in about 80% of the West's water being devoted to agriculture. For example, the Great Salt Lake is drying up due to climate change and upstream diversions which have substantially reduced inflows, but Utah seems willing to live with a shrinking lake. Recently, "[t]he Utah Rivers Council awarded Utah a "D-" grade for all its [Utah's] 2024 water bills. The council's director called it one of the "most destructive" sessions for the Great Salt Lake in recent history.
A range of reforms have been suggested. Here are my top four.
Federalize water rights
Various scholars have suggested federalizing water rights. This is not going to happen for political and legal reasons, but agricultural retreat has opened a new possibility. In a forthcoming law review article, Professor Stephanie Stern (with minor contributions from your blogger) argues that the federal government could purchase some of the water rights before they are abandoned or claimed by other users. The precedent for this is the purchase of homes in flood plains as part of a "managed retreat." This would create a pool of water available for instream environmental flows to preserve waterways and aquatic ecosystems.
The Aussie way
There has always been a close relationship between Australian and United States water law. Prior appropriation was studied in the late 19th century as the irrigation economy grew, but New South Wales, as has most of the world, rejected it and adopted a licensing system. In recent years, proposals have been made to dump prior appropriation in favour of the reformed New South Wales system. In brief, the state would issue volumetric water licenses and curtailment rules that apply to all licensees. The licenses would be freely transferable.
This is also unlikely to happen. A proposal to introduce it in Nevada was challenged as a taking (i.e., seizure of property rights). Courts have generally upheld switching from riparianism to prior appropriation because more secured property rights are created. However, moving from prior appropriation to volumetric, riparian-like entitlements would do the opposite: turn secure rights into less secure rights. But one could argue that the imperative of global climate change adaptation justifies a public emergency taking.
Leave 'Old Prior' alone: It's up to the job
In theory, prior appropriation is a complete climate change adaptation package. The ranking of priorities means that each user knows exactly what risks they will face during a shortage. If additional water is needed, there are several permanent and temporary transfer options, such as water marketing, available to move water to high-demand uses. This can include environmental flows. The Colorado River District recently paid 99 million dollars to change non-consumptive hydropower power rights with a 1928 priority into instream-flow rights which benefit the environment, recreational and other users and block out-of-basin transfers. Nevertheless, such trading is voluntary and can be expensive; as water demand outgrows the supply, a more equitable way to allocate water fairly will be needed.
Just ignore the 'old prior' rights
While prior appropriation remains the default rule, in practice its application is declining. Courts are chipping away at it. For example, courts are increasingly willing to invoke the "futile call doctrine". A futile call occurs when a downstream senior water right cannot be satisfied, because of factors such as evaporation, even after curtailing upstream junior water rights. Thus, the call is not honoured. More broadly, there are ambitious efforts to develop basin-wide management plans rather than litigate and adjudicate to fix priorities. More and more, senior water rights holders are willing to forego voluntary enforcement of old priorities in favour of basin-wide solutions that provide benefits for all users and interests. For example, the Yakima Basin Integrated Plan is a 30-year plan to provide, inter alia, more reliable water supplies for irrigators, instream flows, and Native American tribes through increased water conservation and new storage.
Conclusion
The prior appropriation doctrine has led the western US in a cul-de-sac. For example, irrigating crops to feed cattle is the largest water use in the Colorado Basin, although the majority of US beef production, except for California, occurs in states outside the basin. To some, federalization and/or adopting a new system, along the lines of what Australian federal states have adopted, with volumetric entitlements that adjust to yearly shifts in sustainable water supply may appear to be the most rational ways to manage the growing water shortages, but both are politically and legally unrealistic. Leaving the prior right doctrine alone is not feasible either. This leaves "ignoring the old guy" as the default option. One wonders what the urban future in the West will look like in this scenario.
Photo credit: Dale Kolke/DWR; California Aqueduct and agricultural fields