Prior appropriation water rights
Encyclopedia
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 right
s 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.
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.
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 emittors.
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
Doctrine in reference to the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case Wyoming v. Colorado
Wyoming v. Colorado
Wyoming v. Colorado is a set of court cases, all dealing with water distribution from the Laramie River. Petition for rehearing was granted which revised the original decision. A motion to dismiss was later denied....
, is a system of allocating water right
Water right
Water right in water law refers to the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious...
s from a water source that is markedly different from riparian water rights
Riparian water rights
Riparian water rights are system for allocating water among those who possess land about its source. It has its origins in English common law...
. Water law
Water law
Water law is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, but has also become influenced by environmental law...
in the western United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
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 (1982}, 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.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 useBeneficial use
Beneficial use is a legal term describing a person's right to enjoy the benefits of specific property, especially a view or access to light, air, or water, even though title to that property is held by another person. This may also be termed "beneficial enjoyment". Black's Law Dictionary...
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
Agriculture
Agriculture is the cultivation of animals, plants, fungi and other life forms for food, fiber, and other products used to sustain life. Agriculture was the key implement in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that nurtured the...
, industrial
Industry
Industry refers to the production of an economic good or service within an economy.-Industrial sectors:There are four key industrial economic sectors: the primary sector, largely raw material extraction industries such as mining and farming; the secondary sector, involving refining, construction,...
or household
Household
The household is "the basic residential unit in which economic production, consumption, inheritance, child rearing, and shelter are organized and carried out"; [the household] "may or may not be synonymous with family"....
use. Ecological
Ecology
Ecology is the scientific study of the relations that living organisms have with respect to each other and their natural environment. Variables of interest to ecologists include the composition, distribution, amount , number, and changing states of organisms within and among ecosystems...
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
Drought
A drought is an extended period of months or years when a region notes a deficiency in its water supply. Generally, this occurs when a region receives consistently below average precipitation. It can have a substantial impact on the ecosystem and agriculture of the affected region...
, 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
Alfalfa
Alfalfa is a flowering plant in the pea family Fabaceae cultivated as an important forage crop in the US, Canada, Argentina, France, Australia, the Middle East, South Africa, and many other countries. It is known as lucerne in the UK, France, Australia, South Africa and New Zealand, and known as...
is grown, using flood irrigation, the amount of the return flow
Return flow
Return flow is surface and subsurface water that leaves the field following application of irrigation water. While irrigation return flows are a point source, they are expressly exempted from permit requirements under the Clean Water Act ....
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
The term abandonment has a multitude of uses, legal and extra-legal. This "signpost article" provides a guide to the various legal and quasi-legal uses of the word and includes links to articles that deal with each of the distinct concepts at greater length...
. 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
Saguache County, Colorado
Saguache County is the seventh most extensive of the 64 counties of the state of Colorado of the United States. The county name comes from a Ute language word meaning “blue earth” or “water at blue earth”. The county population was 5,917 at U.S. Census 2000...
.
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
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
court rulings, interstate agreements and international treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
.
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
California Gold Rush
The California Gold Rush began on January 24, 1848, when gold was found by James W. Marshall at Sutter's Mill in Coloma, California. The first to hear confirmed information of the gold rush were the people in Oregon, the Sandwich Islands , and Latin America, who were the first to start flocking to...
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
Homestead Act
A homestead act is one of three United States federal laws that gave an applicant freehold title to an area called a "homestead" – typically 160 acres of undeveloped federal land west of the Mississippi River....
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
Carbon dioxide
Carbon dioxide is a naturally occurring chemical compound composed of two oxygen atoms covalently bonded to a single carbon atom...
and global warming
Global warming
Global warming refers to the rising average temperature of Earth's atmosphere and oceans and its projected continuation. In the last 100 years, Earth's average surface temperature increased by about with about two thirds of the increase occurring over just the last three decades...
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 emittors.
See also
- Air rightsAir rightsAir rights are a type of development right in real estate, referring to the empty space above a property. Generally speaking, owning or renting land or a building gives one the right to use and develop the air rights....
- Countryside and Rights of Way Act 2000Countryside and Rights of Way Act 2000The Countryside and Rights of Way Act 2000 is a UK Act of Parliament which came into force on 30 November 2000.As of September 2007, not all sections of the Countryside and Rights of Way Act have yet come into force...
(in the UK) - Crown landCrown landIn Commonwealth realms, Crown land is an area belonging to the monarch , the equivalent of an entailed estate that passed with the monarchy and could not be alienated from it....
(see "Logging and mineral rights" under Canada) - EasementEasementAn easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
("the right of use over the real property of another") - Land rightsLand rightsLand law is the form of law that deals with the rights to use, alienate, or exclude others from land. In many jurisdictions, these species of property are referred to as real estate or real property, as distinct from personal property. Land use agreements, including renting, are an important...
- Right of public access to the wildernessRight of public access to the wildernessThe freedom to roam, or everyman's right is the general public's right to access certain public or privately owned land for recreation and exercise...
- Riparian water rightsRiparian water rightsRiparian water rights are system for allocating water among those who possess land about its source. It has its origins in English common law...
- United States groundwater law
External links
- Western States Water Laws BLMBureau of Land ManagementThe Bureau of Land Management is an agency within the United States Department of the Interior which administers America's public lands, totaling approximately , or one-eighth of the landmass of the country. The BLM also manages of subsurface mineral estate underlying federal, state and private...
site.