The West’s Water Rights System is Working

By Dan Keppen and Patrick O’Toole, Family Farm Alliance

What if someone suggested to you a new policy – one that would result in less food production, a loss of states’ rights and more federal control, less water for your household, for migratory birds and economic activity, and also would spawn endless lawsuits?

What if this new policy governed water in a way that left its distribution up to a federal bureaucracy?

That is what would happen if we listen to critics who are using the current California drought to sound the drumbeat calling for the end of “prior appropriation,” the doctrine that has governed the distribution of water since Americans settled the arid West. 

One such critic is Richard Frank, a University of California law professor, recently told Western Water magazine, “It’s a system that worked reasonably well 20, 50, 100 years ago, but the current drought is showing that it is most inadequate to deal with California’s current water challenges.”

In western states, the first user to take a quantity of water from a water source for “beneficial use” – agricultural, industrial or household – has the right to continue to use that quantity of water for that purpose. The water right must be filed with the state, with a yearly amount, type of use and appropriation date. In Colorado and other states, water law is enshrined in the state constitutions. 

Agriculture in the West – as in other parts of the world – accounts for a large portion of the water used for human purposes. That’s what food and fiber requires and what humans need to live healthy lives. Many of the senior water-right holders in the West are farmers and ranchers. Not surprisingly, the calls for an end to prior appropriation are coming primarily from academia, some environmental and development interests, and junior rights holders. They claim that the western water-rights system is outdated and hampering efforts to address the West’s historic drought.

This is not the case, as a Family Farm Alliance report on the prior appropriation doctrine and its role in the modern water world demonstrates. 

Critics claim that the rigid nature of the prior appropriation doctrine complicates water transfer opportunities and hurts the environment. In fact, temporary water transfers are actually routine in many areas of the West. Specific examples show how the water-rights system protects public trust resources, which further emphasizes that resolving environmental issues requires balance. 

Consider California’s Sacramento Valley, where water has been re-managed in very creative ways over the past several decades for the benefit of salmon and birds using the Pacific Flyway. The major rivers and streams of the Sacramento Valley provide essential pathways for spawning salmon and steelhead, where flow agreements to benefit these fish exist on every major watercourse. 

Amid allegations that the prior appropriation doctrine is flawed and should be reconsidered have come calls that the existing water-rights systems should be reformed, backed by assertions that the system should be replaced with something similar to one developed in Australia. That “model” is based on a strict hierarchy whereby water is first allocated to critical human needs, then to the environment and lastly to productive water users – including food producers.

But the Australian Water Plan “experiment” has resulted in disenfranchised farmers and ranchers, overburdened the Australian economy with an unsustainable plan, and caused serious damage to the country’s food producing region. In fact, some in Australia are now looking at reining in their overbearing, top-down water policies in an attempt to undo this damage.

Closer to home, the water in Colorado’s Western Slope and the Yampa River Basin is being eyed for population growth on the Eastern Slope. The current system offers a balance that protects water needs for people, the environment and food production in a balanced way.

Balance is needed in the Colorado River Basin and other parts of the West, at a time when food producers are being asked to double global food production to meet a projected world population of more than 9 billion in the coming years.

We believe that dismantling the doctrine of prior appropriation in the West would destroy the benefits associated with generational ownership of water rights and undermine the considerable investments made based solely on the law of the land. Further, the certainty required by all water users would be erased. Finally, any public “taking” of water rights would violate the Fifth Amendment of the U.S. Constitution, which directs the government to compensate the owner of any right if it is going to be taken away or restricted. 

The current water-rights system has been around for generations, and people have made investment decisions based upon this established law. Colorado even has “water courts” to administer this system. The ditches, canals, other water-delivery systems and the land that helps feed and clothe the world represent a huge investment based on those water rights. If wholesale changes are made to the water-rights system, the consequences would be very far reaching.

We remain convinced – now more than ever – that the doctrine of prior appropriation and the need for certainty in western states’ allocation systems make this doctrine the cornerstone ofwestern water resource allocation policy.