Prior Appropriation Research Articles

Can Agricultural Managed Aquifer Recharge (Ag‐MAR) Recover Return Flows Under Prior Appropriation in a Warming Climate?

AbstractGroundwater return flow to streams is important for maintaining aquatic habitat and providing water to downstream users, particularly in irrigated watersheds experiencing water scarcity. However, in many agricultural regions, increased irrigation efficiency has reduced return flows and their subsequent in‐stream benefits. Agricultural managed aquifer recharge (Ag‐MAR)—where artificial recharge is conducted via irrigation canals and agricultural fields—may be a tool to recover these return flows, but implementation is challenged by water supply and water management. Using climate‐driven streamflow simulations, an integrated operations‐hydrology model, and a regional groundwater model, we investigated the potential for Ag‐MAR to recover return flows in the Henrys Fork Snake River, Idaho (USA). We simulated potential Ag‐MAR operations for water years 2023–2052, accounting for both future water supply conditions and local water management rules. We determined that Ag‐MAR operations reduced springtime peak flow at the watershed outlet by 10%–14% after accounting for return flows. Recharge contribution to streamflow peaked in July and November, increasing July–August streamflow by 6%–14% and November–March streamflow by 9%–14%. Furthermore, sites where Ag‐MAR was conducted incidental to flood irrigation had more water available for recharge, compared to sites requiring recharge rights, which are junior in priority to agricultural rights. Mean annual recharge volume for the incidental recharge sites averaged 12% of annual natural streamflow, ranged from 269 to 335 Mm3, and was largely available in April and October. We demonstrate Ag‐MAR can effectively recover groundwater return flows when applied as flood irrigation on agricultural land with senior‐priority water rights.

Working (around/within/against) prior appropriation: Diverse hydrosocial practices to secure water for rivers

Water scarcity in the Western US, through the lens of political ecology, can be understood as inextricably shaped by power dynamics, governance structures, and legal practices of resource allocation. Water allocation in the region is determined largely by the legal doctrine of Prior Appropriation, the 'first in time, first in right' principle. However, prior appropriation is fundamentally based in anthropocentric and settler colonial assumptions, and in light of drought, climate change, and shifting social and environmental values, the system has been critiqued as inadequate to meet contemporary water challenges. Despite challenging historical legacies, water managers in the Western US are developing a range of strategies to work around or within prior appropriation to secure environmental flows for rivers and aquatic species. In this article we use political ecology and diverse economies approaches to consider the challenges of, and challenges to, prior appropriation. We examine a diverse set of practices, work-arounds, and creative strategies being used to secure instream flows, and discuss how these strategies affirm or challenge prior appropriation, how they reinforce or challenge inequities, and how they reform or re-envision water allocation in ways that may open up potential for social and environmental justice.

Using Financial Contracts to Facilitate Informal Leases Within a Western United States Water Market Based on Prior Appropriation

AbstractThe ability to reallocate water to higher‐value uses during drought is an increasingly important “soft‐path” tool for managing water resources in an uncertain future. In most of the Western United States, state‐level water market institutions that enable reallocation also impose substantial transaction costs on market participants related to regulatory approval and litigation. These transaction costs can be prohibitive for many participants in terms of both costs and lengthy approval periods, limiting transfers and reducing allocation efficiency, particularly during drought crises periods. This manuscript describes a mechanism to reduce transaction costs by adapting an existing form of informal leases to facilitate quicker and less expensive transfers among market participants. Instead of navigating the formal approval process to lease a water right, informal leases are financial contracts for conservation that enable more junior holders of existing rights to divert water during drought, thereby allowing the formal transfer approval process to be bypassed. The informal leasing approach is tested in the Upper Colorado River Basin, where drought and institutional barriers to transfers lead to frequent shortages for urban rights holders along Colorado's Front Range. Informal leases are facilitated via option contracts that include adaptive triggers and that define volumes of additional, compensatory, releases designed to mitigate impacts to instream flows and third parties. Results suggest that more rapid reallocation of water via informal leases could have resulted in up to $222 million in additional benefits for urban rights holders during the historical period 1950–2013.

The Prior Appropriation Doctrine of Water Law in the West: An Emperor with Few Clothes, XXIX Journal of the West, No. 3, pp. 5-13 (July 1990) <br>

The Prior Appropriation Doctrine of Water Law in the West: An Emperor with Few Clothes, XXIX Journal of the West, No. 3, pp. 5-13 (July 1990) <br>

Redefining "Beneficial Use" to Combat Water Scarcity

Many western states in the U.S. are experiencing severe or exceptional drought, where water shortages are common, widespread, and have created troubling emergency conditions. How long these droughts plaguing the West will last is unknown. What is evident, however, is water use under a wellestablished doctrine must change in order to ensure communities do not run out of water. As a decades-long drought persists, frequent higher-than-average temperatures linger due to climate change, and population growth skyrockets, the need to implement a narrower standard for water use in the West is critical.
 The purpose of this Comment is to propose an amendment to the prior appropriation doctrine such that the doctrine promotes sustainable water use, ultimately acting as a hedge against current and future water scarcity crises. This Comment begins with an overview of the current water scarcity crisis, including drought conditions throughout western parts of the United States. Part III then provides a summary of the prior appropriation doctrine, paying special attention to the doctrine’s most important element—beneficial use— before moving into a brief discussion of the main benefits and drawbacks of the current definition of beneficial use. This Comment will end by presenting a modified definition of beneficial use to better equip prior appropriation states with managing water use in areas prone to drought, followed by discussion of likely criticisms of such a redefinition.

Colorado River Basin: conflict management under hydrologic stress and institutional gridlock

ABSTRACT In the Colorado River, hydrologic and legal conditions create difficulty in sharing water effectively and equitably during a deep 22-year drought. Demand outstrips supply, water entitlements are over-appropriated, and institutional arrangements are nearly gridlocked. The crisis poses challenges not experienced before, and these may worsen with climate change and warming. It threatens the water supplies of major cities like Los Angeles and Las Vegas, as well as critical agricultural regions in the U.S. The background began to unfold more than 100 years ago, prior to signing of the Colorado River Compact in 1922. The decade prior to 1922 was relatively wet, and the Compact made water allocations that are not sustainable. Institutional challenges are caused by the rigidity of the rules governing river operations and the complex array of stakeholder organizations and management authorities. Although a wet 2022-3 winter provided temporary and only incremental relief, without a hydrologic reversal and/or effective regulatory controls, water levels in Lakes Powell and Mead will decline further and no storage water will be available to satisfy downstream interests. To avoid that scenario, it is likely that drastic curtailments will occur but forecasting them involves uncertainties and speculation. Achieving effective river basin management during the drought will likely require involuntary cuts, voluntary cuts, and possibly litigation, which will be expensive and long-lasting. Federal funding may help on a temporary basis. Involuntary cuts will require a forceful mechanism to push ahead with solutions despite lack of consensus. Lessons include the challenges in creating equity and sustainable conditions in the dry regions with water right systems based on prior appropriation and how to manage transboundary water conflicts within a federal system of government.

Too Simple Rules for a Complex World? Prior Appropriation Water Rights as Natural Rights

This Article assesses the fit of Professor Claeys’s theory of Natural Property Rights to traditional prior appropriation, the regime that allocates water in the West, and its capacity to fit the future of the regime. Natural Property Rights does not offer clear answers to the conflicts under the prior appropriation doctrine of water when there is scarcity. This Article explores the lack of determinacy of Claeys’s theory and the maladjustment between the theory and some of the foundational prior appropriation principles, which cannot be ignored even in the most stylized form of the regime. In particular, the Article analyzes the interaction between the definition of the right and the type of use, the necessity proviso in a market context, the role of greed in prior appropriation trades, and the public trust doctrine.

How State Governments Plan and Integrate Water Resources Management Programs

In the US federal system, state governments play important roles between the federal and local levels in water resources planning, coordination, and regulation. How they coordinate these functions can indicate the degree of integration of their agencies and programs. A database of state programs was used to compile indicators of integration among water quality and quantity and drinking water source quality, as well as the status of comprehensive water planning. In most prior appropriation states and in some states in riparian areas, the management of water withdrawals and water quality remains in separate agencies. Some 35 of 50 states have a version of a “state water plan.” A scattered pattern of institutional arrangements shows that titles and functional coordination evolve in response to contextual situations, although state water management agencies have matured, and many have stable organizational forms. Water rights and regulatory controls for clean water and safe drinking water are firmly in place. Organizational structures are not likely to change much, but integration can be improved through management mechanisms and appropriate uses of planning, particularly at the watershed scale.

Beyond Senate Bill 3: How to Achieve Environmental Flows in Texas Under Prior Appropriation

In 2007, the 80th Texas Legislature enacted Senate Bill 3 on the 140th and last day of session. This bill was the third far-reaching piece of water legislation after Senate Bill 1 passed in 1997 and Senate Billl 2 passed in 2001. Collectively, these bills changed how Texas plans for future water needs, regulates groundwater, promotes conservation, studies the need for environmental flows balanced with population needs, and establishes environmental flow standards for Texas’ rivers, bays, and estuaries. Senate Bill 3 created a process through which scientists, stakeholders, and the Texas Commission on Environmental Quality set environmental flow standards. Over 12 years have passed since Senate Bill 3 became law, allowing us to consider the efficacy of the enabling legislation and the resulting rules. In short, identifying and securing water for the environment has been difficult due to little if any unallocated water in the state’s river basins and limitations in Senate Bill 3 and Texas Water Code. We identified seven options for the stakeholders and the state to consider to increase the protection of environmental flows while respecting private property rights: (1) protecting water-right owners that participate in forbearance agreements from cancellation, (2) pursuing cancellations and affirming abandonments, (3) requiring that cancelled or abandoned water be set-aside to meet environmental flow standards, (4) modernizing how surface-water use and diversions are tracked, (5) requiring water rights holders to demonstrate the pursuit of other water supplies before suspending environmental flows, (6) studying ways how environmental flows can co-exist and be protected within a prior-appropriation system, and (7) studying how dedications of water under existing water rights can be considered for tax credit or deductions so as to further incentivize transactions for environmental benefit. If implemented, these options could allow Texas and Texans to more closely achieve the desired outcomes hoped for from Senate Bill 3.

The legal geography of prior appropriation water rights: Political ecology and the defeat of the Las Vegas Pipeline

As the Western United States becomes increasingly arid from climate change, cities across the region are finding new ways to increase and conserve water resources. Some municipalities have proposed implementing rural-to-urban water transfers to augment urban water supplies. This was the case in Las Vegas, Nevada, where the Southern Nevada Water Authority (SNWA) proposed the Groundwater Development Project–informally known as the Las Vegas Pipeline–which sought to pump groundwater from eastern Nevada, transporting it 300 miles south to Las Vegas. In this article, I explore how SNWA’s pipeline project was contested by the environmental nonprofit organization the Great Basin Water Network (GBWN), a grassroots coalition of ranchers, environmentalists, and tribal members. Highlighting how GBWN successfully used water law based on the doctrine of prior appropriation–discursively, in practice, and as a legal strategy–I illustrate how SNWA’s project was defeated in March of 2020, after decades of activism and litigation. Drawing from legal geography and political ecology, this article illustrates how structure (in the form of law), and agency (in the form of activism), converge to affect legal outcomes over water resources and conflict in the Western U.S. Last, by highlighting the adverse effects of rural-to-urban water transfers, this essay contributes to discussions about more equitable forms of water governance between rural and urban governments, while offering insights into water rights based on private property by critically examining the doctrine of prior appropriation.

LCRR Compliance Involves More Than Lead Service Lines

LCRR Compliance Involves More Than Lead Service Lines

The effect of prior appropriation water rights on land‐allocation decisions in irrigated agriculture

AbstractThe doctrine of prior appropriation, which administers water rights based on seniority, may introduce heterogeneity in the risk of a water shortage among otherwise similar agricultural irrigators. We develop a theoretical model that describes how farmers with differing seniority in water rights adjust land‐allocation decisions in response to an anticipated change in water deliveries. Using a fine‐scale dataset of spatially referenced surface water rights for Idaho's Eastern Snake River Plain, we find evidence that irrigators with differing water rights make systematically different land‐allocation decisions, and that farmers with the most junior (least secure) water rights are most responsive to an expected water shortage. These irrigators adapt to anticipated dry conditions by increasing land fallowed and planting a less profitable, drought‐resilient mix of crops. Relatively dry growing season conditions exacerbate the potential for prior appropriation to introduce inefficiencies by driving a divergence in resource‐use decisions between otherwise similar irrigators with differing water rights.

The Accumulating Interest in Water Banks: Assessing Their Role in Mitigating Water Insecurities

AbstractReallocation is often promoted as a response to water security dilemmas in the western United States. Water banking is a form of reallocation utilized in several states to facilitate temporary water rights transfers. This article frames and examines water banking’s potential influences on water security from a hydro‐social perspective through a case analysis of water banking policy in Utah. It analyzes the challenges of integrating the market‐based economic incentives of water banks with the legal precedents of the prior appropriation doctrine to reallocate water in overappropriated basins with hydrologically interdependent uses. Key‐informant interviews and focus groups were used to examine water security’s meaning to stakeholders and analyze how water banking could affect the water security of disparate users and uses at multiple scales. Stakeholders predominately saw water security as assurance in water quantity, but water security was further equated by participants with the legal protections afforded by water rights. Multiple complexities in water bank implementation are to be expected when multiscalar contexts are considered, including societal and hydrologic tradeoffs in settings with diverse and interconnected interests. Our research shows that examining the potential ramifications of water banking policy through stakeholder perspectives can reveal nuanced insights on individual and collective water security issues not only within Utah but other arid regions in general.

Slippery land, ever-shifting boundaries: claiming and accessing alluvial (is)lands in the Ayeyarwady Delta, Myanmar

In Myanmar, since the transition to a quasi-civilian government in 2011, resolving land disputes has been high on the political agenda. Grounded in Political Ecology and inspired by Science and Technology Studies, this article investigates the critical geography of the strategies through which alluvial (is)lands in the Ayeyarwady Delta are made into disputed resources. This interdisciplinary research brings together an historical analysis of publicly available satellite imagery, geomorphological studies, qualitative interviews with villagers and officials, and participatory observation over three years. More specifically,and empirically, the article sheds light on the socio-material dynamics of three alluvial sites in the Ayeyarwady Delta, along the main river stream. Based on an in-depth understanding of the river dynamics and of legal and administrative considerations, (is)lands' inhabitants devise multiple resource-making strategies that are underpinned by different, overlapping, and often conflicting discursive justifications and principles. Dependency on the (is)lands,vulnerability to far- reaching environmental changes, and multiple forms of prior appropriation are commonly used to justify claims and practices. Theoretically, these resource making strategies lead us to interrogate what makes the materiality of ever-shifting socio-environments such as alluvial (is)lands. There is a materiality that consists not only of the ever-changing shape and position of alluvial (is)lands, but also comes into being through competing practices and claims that may exist before and long after sediments and grass actually materialize. This volatile materiality takes an oral and written dimension in multiple inscription devices such as fences, landmarks, land titles, maps, or even stories.

Viewing the Environmental Justice Critiques of Greenhouse Gas Auction-Cap-Trade-and-Invest Programs Through an Ethical Lens

Existing North American regional programs for capping and reducing greenhouse gas emissions have come under criticism based on concerns regarding their perceived impact on environmental justice communities. When viewed through an ethical lens, programs that distribute emissions allowances by way of an auction with a sufficient reserve price comport better with principles of distributive justice than traditional permitting mechanisms, which award pollution allowances based on prior appropriation and do so without compensating society for consumption of a scarce resource. There is no evidence supporting claims that these programs increase levels having adverse health effects in disadvantaged communities. While levels of pollutants having adverse impacts on EJ communities were disproportionately increasing before the 2013 initiation of the California program, that trend reversed after the program’s initiation. By reinvesting auction revenues in programs to increase energy conservation, efficiency, and distributed generation in disadvantaged communities, the existing programs offset or eliminate adverse price impacts.

Natural Resources and Natural Law Part II: The Public Trust Doctrine

Natural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those individuals advocated their position in part through civil disobedience and armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, and the right to bear arms. Prior appropriation doctrine is consistent with secular natural law theory. Existing positive law, however, accepts prior appropriation for western water rights but rejects its application to grazing rights on federal public lands, for reasons consistent with secular natural law. Natural law doctrine allows citizens to advocate for change but requires them to respect the positive law of the societies in which they live. Separation of church and state also bars natural law claims based on religious doctrine unless those principles are also adopted in secular positive law. This sequel addresses claims from the opposite side of the political-environmental spectrum, that natural law provides one justification for the public trust doctrine, and that courts should enforce an atmospheric public trust to redress catastrophic global climate change. Although some religious groups have embraced environmental agendas supported by religious doctrine, public trust claims are secular in origin. Just as natural law provides support for prior appropriation, it supports the idea that some resources, such as water, wildlife, and air, should be held in common rather than made available for private ownership. From this perspective, the two doctrines merge into a single issue of resource allocation. Which resources are best made available for appropriation as private property, and which are best left in common? Natural law theory helps to explain the liberty and welfare goals that inform those choices. Positive law embraces the public trust doctrine with respect to some natural resources, and does not preclude its applicability to the atmosphere or other common resources.

The relative economic merits of alternative water right systems

How natural resources are measured and bounded within a property right system can influence their development and productivity. This is especially true for surface water given its fluid, fungible, and stochastic nature. Two quantifications have emerged: The prior appropriation doctrine provides absolute quantities to water allocated based on first use while proportional water rights distribute a set percentage of total water to owners. While theoretical differences have been identified, empirical tests are scarce due to the endogenous choice of water rights. I identify and utilize a natural experiment where acequias (Hispanic-rooted irrigation ditches) developed in Territorial New Mexico are later divided by the formation of Colorado, exogenously compelling that subset to be subject to the priority system while those in New Mexico continue to practice proportional division. Drawing on a broad compilation of archival, administrative, satellite, hydrological, and survey data, I find priority rights curtail investment for later irrigators, but that the marginal product of water is generally lower under that right system. This research advances our understanding of how distinct property right systems affect resource development and use. The results can guide stakeholders devising or reforming rights to a resource, particularly ones with stochastic flows.

Groundwater Doctrine and Water Withdrawals in the United States

Groundwater is a valuable natural resource which is directly related to food production, human and ecosystem health. In the US, 48% of irrigated agriculture relies on groundwater, but there is no systematic national program responsible for groundwater management. For this paper, each US state was classified based on its most prevalent groundwater doctrine: Absolute Ownership, Prior Appropriation, Reasonable Use, and Correlative Rights. The Köppen climate zone of each state, USGS runoff data and USGS county-level water use data from 1985 to 2015 were used to analyze how groundwater use varies with climate and groundwater doctrine. Semi-arid states, which all follow Prior Appropriation doctrine, have the highest average irrigation rate, while states following Reasonable Use doctrine have the lowest average rate, but the largest variability. Analysis of Covariance shows that in Prior Appropriation states, irrigation volume and area do not increase during warm, dry periods but in Absolute Ownership states irrigation volume does increase. Water use trend analysis shows that irrigated area and groundwater withdrawals have increased over the last 30 years in humid and temperate regions, while irrigated area has decreased in semi-arid regions. At the same time, irrigation rate and the fraction of irrigation coming from groundwater has increased everywhere, suggesting a potential shift in the preferred water source for irrigation. This data analysis will provide insights for future work on how water policy should respond to water scarcity in US.

The Relationship between Priority and Value of Irrigation Water Used with Prior Appropriation Water Rights

This article examines the relationship between water right priority and value of use for rights defined by prior appropriation, and tests whether this relationship is different for rights that have been transferred from their original locations to new locations, versus those that have not. We develop an empirical model using data for agricultural irrigation water rights and show that for transferred water rights, more senior (higher-priority) rights are reallocated from lower-to higher-valued agricultural uses. For water rights that remained unchanged, we find that priority order and potential profitability, as indicated by land characteristics, are not well aligned.

Water law and climate change in the United States: A review of the legal scholarship

AbstractClimate change's effects on water resources have been some of the first realities of ecological change in the Anthropocene, forcing climate change adaptation efforts even as the international community seeks to mitigate climate change. Water law has thus become one vehicle of climate change adaptation. Legal research into the intersections between climate change and water law in the United States must contend with the facts that: (a) climate change affects different parts of this large country differently; and (b) U.S. water law is itself a complicated subject, with each state having its own laws for surface water and groundwater and the federal government playing a significant role in interstate and international waters, in building and managing large water infrastructure, and in creating water rights for Native American tribes and other federal reservations. Within this complexity, legal research to date has tended to focus on the law governing surface water in the American West, enumerating various problems with the prior appropriation doctrine as the West grows hotter and drier and offering multiple suggestions to increase legal flexibility so that western water can be re‐allocated to reflect changing social–ecological realities. These suggestions extend to new, more comprehensive, and more adaptive water governance approaches. Far less legal scholarship has focused on eastern riparian rights, the various groundwater doctrines at play in the United States, or the increasing role of tribes in managing water resources, but these areas warrant future attention.This article is categorized under: Engineering Water > Planning Water Human Water > Water Governance Science of Water > Water and Environmental Change