Prior-appropriation water rights
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Prior appropriation water rights, sometimes known as the Colorado Doctrine in reference to the U.S. Supreme Court case Wyoming v. Colorado, is a system of allocating water rights from a water source that is markedly different from riparian water rights. Water law in the western United States generally follows the appropriation doctrine which developed due to the scarcity of water in that area.
Origin of the doctrine
The appropriation doctrine originated in Colorado in 1872 when the territorial court ruled in Yunker v. Nichols, 1 Colo. 552 (1872), that a non-riparian user who had previously applied part of the water from a stream to beneficial use had superior rights to the water with respect to a riparian owner who claimed a right to use of all the water at a later time. The question was not squarely presented again to the Colorado Court until 1882 when in the landmark case, Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882), the court explicitly adopted the appropriation doctrine and rejected the riparian doctrine, citing Colorado irrigation and mining practices and the nature of the climate. The decision in Coffin ruled that prior to adoption of the appropriation doctrine in the Colorado Constitution of 1876 that the riparian doctrine had never been the law in Colorado. Within 20 years the appropriation doctrine, the so-called Colorado Doctrine, had been adopted, in whole or part, by most of the states in the Western United States that had an arid climate.
The legal details vary from state to state; however, the general principle is that water rights are unconnected to land ownership, and can be sold or mortgaged like other property. The first person to use a quantity of water from a water source for a beneficial use has the right to continue to use that quantity of water for that purpose. Subsequent users can use the remaining water for their own beneficial purposes provided that they do not impinge on the rights of previous users.
Beneficial use is commonly defined as agricultural, industrial or household use. Ecological purposes, such as maintaining a natural body of water and the wildlife that depends on it, were not initially deemed as beneficial uses in some Western states but have been accepted in some jurisdictions. The extent to which private parties may own such rights varies among the states.
Each water right has a yearly quantity and an appropriation date. Each year, the user with the earliest appropriation date (known as the "senior appropriator") may use up to their full allocation (provided the water source can supply it). Then the user with the next earliest appropriation date may use their full allocation and so on. In times of drought, users with junior appropriation dates might not receive their full allocation or even any water at all.
It is possible for a senior appropriator to change his right without losing his priority date. However, any change is conditional on protecting Junior appropriators' water rights. Those junior appropriators are entitled to a Preservation of Conditions that were present when the junior appropriator was granted his water right. Farmers High Line v. City of Golden (CO 1954).
When a water right is sold, it retains its original appropriation date. Only the amount of water historically consumed can be transferred if a water right is sold. For example, if alfalfa is grown, using flood irrigation, the amount of the return flow may not be transferred, only the amount that would be necessary to irrigate the amount of alfalfa historically grown. If a water right is not used for a beneficial purpose for a period of time it may lapse under the doctrine of abandonment. Abandonment of a water right is rare, but occurred in Colorado in a case involving the South Fork of San Isabel Creek in Saguache County, Colorado.
For water sources with many users, a government or quasi-government agency is usually charged with overseeing allocations. Allocations involving water sources that cross state borders or international borders can be quite contentious, and are generally governed by federal court rulings, interstate agreements and international treaties.
Even though water markets are increasingly gaining ground, many have criticized the prior appropriation system for failing to adequately adjust to society's evolving values. For example, the vast majority of water in the West still is allocated to agricultural uses despite the cries for additional water from growing cities. Similarly, environmentalists and those who use rivers for recreational and/or scenic purposes have demanded that more water be left in rivers in streams. The prior appropriation system has in many ways inhibited these calls for change.
Prior Appropriation Theory applied to other goods
Water is not the only public good that has been subject to prior appropriation. The same first in time, first in right theory has been used in the United States to encourage and give a legal framework for other commercial activities.
The early prospectors and miners in the California Gold Rush of 1849, and later gold and silver rushes in the western United States, applied appropriation theory to mineral deposits. The first one to discover and begin mining a deposit was acknowledged to have a legal right to mine. Because appropriation theory in mineral lands and water rights developed in the same time and place, it is likely that they influenced one another. This was seen in the California case Irwin v. Phillips, 5 Cal. 140 (1855) which decided a water rights dispute between two non-riparian miners on the basis of "first in time, first in right", a maxim drawn from equity. As with water rights, mining rights could be forfeited by nonuse. The miners codes were later legalized by the federal government in 1866, and then in the Mining Law of 1872.
The Homestead Act of 1862 granted legal title to the first farmer to put public land into agricultural production. This first in time right to agricultural land may have been influenced by appropriation theory applied to mineral lands.
In recent years, there has been some discussion of limiting air pollution by granting rights to existing pollution sources. Then it has been argued, a free cap and trade market could develop in pollution rights. This would be prior appropriation theory applied to air pollution. Recent concern over carbon dioxide and global warming has led to an economic market in CO2 emissions, in which some companies wish to balance emissions increases by offsetting decreases in existing emissions sources. This is essentially acknowledging a prior appropriation right to existing CO2 emitters.
- Air rights
- Countryside and Rights of Way Act 2000 (in the UK)
- Crown land (see "Logging and mineral rights" under Canada)
- Easement ("the right of use over the real property of another")
- Land rights
- Right of public access to the wilderness
- Riparian water rights
- United States groundwater law
- Ralph Henry Hess. "The Colorado Water Right". Columbia Law Review (Columbia Law Review Association, Inc.) 16 (8): 649–664. Retrieved September 24, 2011. "JSTOR asks that you acknowledge JSTOR as the source of the Early Journal Content; if you use material from JSTOR online, we request that you link directly to the stable URL provided. If you use Early Journal Content offline, we ask that you credit the source as follows: “Courtesy of JSTOR.”"
- Vranesh, George (1987). Colorado Water Law, Volume 1. Boulder, Colorado: Vranesh Publications. pp. 62–63.
- Vranesh, George (1987). Colorado Water Law, Volume 1. Boulder, Colorado: Vranesh Publications. pp. 63–64.
- "Western States Instream Flow Summary". National Science & Technology Center. Retrieved 2007-05-08.
- San Luis Val. Land & Cattle Co. v. Hazard, 114 Colo. 233 (1945).
- Brigham Daniels, Emerging Commons Tragic Institutions | Environmental Law | Vol. 37 (2007), pp. 515-571
- Vranesh, George (1987). Colorado Water Law, Volume 1. Boulder, Colorado: Vranesh Publications. p. 62.