Perhaps nowhere on earth are the questions, arguments, and wars waged more intricately than in the American West, and this article looks at that through the lens of water law, and markets.
Buy That Fish A Drink
By Brandon Scarborough
PREC Reports, June 2007
As it was more than a century ago, it is still true today; water is the lifeblood of the American West. It turns barren landscapes into fertile oases of food and fiber, provides flowing paths for migrating fish, and supports complex ecosystems for plants and animals.
The West is changing, however, and its most precious resource is increasingly being used for other purposes—primarily being pulled from streams to support burgeoning urban needs. The dilemma is how to keep water in streams for fish, wildlife, recreation, and even aesthetics, yet still meet growing demands for out-of-stream uses that are helping to enrich local economies and agriculture. As an alternative to costly and inefficient regulations that dictate water allocations between agricultural and environmental uses, voluntary markets of tradable water rights are proving to be an effective and viable solution for governments, local communities, and private groups looking to preserve environmental flows.
Western water law
Water law in the West is based on the prior appropriation doctrine that was developed more than a century ago to address increasing demand for scarce water resources. The doctrine assigns property rights to water based on the principle of "first in time, first in right," meaning the .first to use the water for beneficial use gains the rights to it. Historically, in order to acquire a water right, water had to be diverted from a stream and used in a beneficial way—typically mining, irrigation, or stock watering. Over time, states broadened the definition of beneficial use to include the appropriation of water rights to meet increasing municipal and industrial demands. Unfortunately, after more than a century of appropriations, many streams in the West are now over-appropriated—the amount of water rightfully claimed by water right holders is more than the amount of water in the stream. Competing demands for insufficient water has left some streams severely dewatered, cutting of critical instream Flows for fish and other wildlife.
In response to mounting pressure for instream flow protection, some states in the 1960s and 1970s responded with regulatory approaches, such as minimum stream-flow requirements, and imposed conditions on new appropriations. States began adopting legislation that recognized the importance of protecting water for fish and wildlife, and some states even issued new water rights for instream flows. These new water rights, however, were junior to existing rights, and on heavily appropriated streams, they had little or no impact on improving instream flows. As a solution, states began adopting legislation to permit the transfer of existing (more senior) rights through leases, purchases, and donations to be used for instream purposes.
The results have been impressive.
