The Dual Nature of Water Rights
Water rights are a complicated matter. Water rights governance challenges are often enmeshed with strain created by government limitation or restriction and private users. Ensuring the best use of water for society is invariably complex due to the dual nature of water rights—they are centrally a public resource, but the laws and rules which govern its use emphasize private rights to use it.
One of the complex challenges of water governance is to ensure the best use for society of a scarce and valued resource in the face of shifting societal values, climate change, and competing uses. There are other issues as well that further complicate things including uncertainties in science and policy including infrastructure investment, development and maintenance, the adjudication of water rights and surface groundwater interactions—to name a few.
On the policy side consider the relentless challenge of population growth coupled with geographic mismatches of location and availability of water—a hallmark of the Western United States. About 86% of Westerners live near cities with much of the water dependency coming from groundwater mining of aquifers or surface water diversions from rivers like the Rio Grande and the Colorado River who’s snow pack and flows are down considerably when compared with their historic averages. What’s the takeaway? Water scarcity can result from these geographic and temporal mismatches of supply and demand.
Why should you care about any of this you may be asking? You should care because the relationship between population growth and stress on water supplies is not linear— increased human populations often result in reallocation of current resources rather than the development of new water sources. To understand how the reallocation of scarce water resources through various institutional arrangements are taking shape across the west and southwest you must know the basics of how water rights are governed.
How are Water Rights Managed?
There are several different legal frameworks for allocating developed ground and surface water in the United States.
These frameworks have largely been shaped by physical conditions such as geology, topography, vegetation and climate, but also historic settlement patterns, culture, custom, economic activity and changes in how society values water. We will not delve into minutia of layered legal strata that plague water governance systems such as Correlative Rights, Federally Reserved Rights, Pueblo Rights or localized governance structures. We won’t discuss groundwater either. To get a better sense of what water rights we provide a brief overview on the two predominant legal systems for the appropriation of surface water rights in the United States and then focus on Prior Appropriations for illustrative purposes.
Riparian Rights, based on English common law, and Prior Appropriations which developed to address the needs of miners staking claims in the arid west. Riparian rights are based on shared uses of water by landowners of land adjacent to waterways, streams and rivers—a sensible approach for the Eastern United States landscape known for heavy rains, temperate climate and private landowners.
Prior Appropriations, often referred to as a “first in time, first in right” system developed in the much drier Western United States and emphasized transferability and security of access to flows above shared uses. Both mining and agriculture in the mid-19th century on federally managed public land in the West posed pragmatic challenges that couldn’t be addressed adequately by the common-law doctrine riparian rights. A key distinction that distinguishes prior appropriations from riparian rights is that senior water rights take precedence when stream flows are insufficient to serve all users.
What are the three key components of a Prior Appropriations Surface Water Right?
The prior appropriation doctrine varies somewhat from state to state, although it’s recognized to have three general requirements to appropriate water: (1) intent to apply water to a beneficial use, (2) the water must be diverted from a natural course, and (3) the water must be applied to a beneficial use. A beneficial use is any use recognized by the state as being an appropriate use of water, such as agriculture, municipal, oil and gas, industrial, and recreation. Beneficial use as a concept is arguably the most important of the three as it serves as the basis, measure and limit of an appropriative right (Benson et al., 2014).
What is a Water Right?
Let’s break this down and unpack what a water right is. In simple terms a surface water right is a property right. It is a legal entitlement authorizing water to be diverted from a water source, or a point of diversion(s), such as a river or stream and put to a beneficial, non-wasteful use. Importantly, the holders or owners of the right do not necessarily own the water itself but rather the right to use it as an usufructary right.
A further breakdown of the various components of a prior appropriations surface water right reveals that there is more than meets the eye. For example, a water right may have one or many points of diversion, one or many places of use, with one or more types of beneficial use with varying amounts of total water diverted or put to beneficial use on an annual basis.
Water rights have components that are interconnected. The components form relationships that can be one-to-one, one-to-many or many-to-many. These relationships may vary depending on the regulating agency or agencies, statutory law, federal law, as well as other local guidelines. A point of diversion, place of use, beneficial use, amount diverted can be modified or changed over time, further adding to the legal strata of a water right through various designations of legal type or legal status. In addition, time or priority date of the right will affect its legal priority during times of shortage.
Water rights are complicated. Ensuring the best use of water for society is a complex challenge due to the dual nature of water rights. Water is a fundamentally a public resource, but the laws and rules which govern its use emphasize private rights to use it. The challenge is coupled with scientific and policy uncertainties and compounded by externalities such as population growth and water scarcity driven by geographic and temporal mismatches in supply and demand. Over time, our continually shifting values and scarcity issues will challenge our existing laws and shape how we manage and reallocate our precious resources.
Benson, Reed D.; A. Dan Tarlock; James N. Corbridge Dr.; David H. Getches; and Sarah F. Bates. “Water Resource Management.” 2014.
Christian-Smith, Juliet, et al. A twenty-first century US water policy. Oxford University Press, 2012.
Fort, D. D. (2002). Water and population in the American West. Human Population and Freshwater Resources: US Cases and International Perspectives, Yale School of Forestry and Environmental Studies Bulletin Series, (107), 17-24.