Prior appropriation water rights

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.

Overview

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. [cite web | title=Western States Instream Flow Summary | publisher=National Science & Technology Center| url=http://www.blm.gov/nstc/WaterLaws/stateflowsummary.html | accessdate=2007-05-08]

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.

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.

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. 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 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 carbon dioxide 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 carbon dioxide emittors.

References

See also

*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

External links

* [http://www.blm.gov/nstc/WaterLaws/abstract1.html Western States Water Laws] BLM site.