New water transfer restrictions: The West returns to riparianism

Abstract

Fundamental shifts in water allocation and management are occurring throughout the West. Changing public values have reversed our historic preference for supply augmentation through the construction of new storage systems and replaced it with one for the reallocation of existing supplies. The emerging reallocation era will be characterized by the better management of existing supplies to serve both traditional and new user communities. Reallocation can be accomplished in three ways: (1) the rededication of unallocated or unused blocks of stored water on federal and state reservoirs, (2) the voluntary transfer of existing water rights, and (3) the redefinition of existing rights by judicial decisions and legislation which trim consumptive entitlements. We currently lack a coherent water allocation principle to replace the equation of conservation with storage and maximum consumption, but we are simultaneously trying to reduce the transaction costs of transfers and to impose a number of ad hoc state and federal restraints on water transfers to accommodate the previously neglected claims of nontraditional water users and other interested parties. These new laws can greatly increase the costs of transfers and make them politically unattractive. The expanded recognition of traditional and new third party rights could produce a new riparianism in the West. This would overturn the law of prior appropriation which has thrived because it was premised on the severance of the right to use water from its source and allowed water to be allocated to new demands. In contrast, the common law of riparian rights confines water rights to landowners in the watershed of a stream. From the beginning, western courts rejected the watershed limitation, but many recent transfer restraints modify the law of prior appropriation and reintroduce the principle of watershed protection rule in the form of a premise that river systems should be managed on an ecosystem basis. Emerging new watershed rules could make all transfers presumptively suspect.