anyone out there? i made a lot of changes to this paper after Eben's comments, and i would love some feedback. if you're reading this...please make edits/comments! - Nate

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Prior Appropriation in an Uncertain West

Introduction

Water plays an especially crucial role in the development and sustainability of human life and industry in arid lands. Successful exploitation of limited water resources can enable life to thrive in dry conditions, but also exposes desert civilizations to potentially insurmountable problems if they fail to create sustainable mechanisms for its allocation. Despite severe droughts in the 1930s and 1950s, America has successfully developed its western desert over the past 150 years, using a flexible legal framework to meet the changing needs of the region. As the planet warms and traditional water sources become less predictable, however, states and the federal government must rethink current ownership and property notions to ensure continued access to water.

Development of Western Water Rights

Water rights in the western states developed to meet the needs of the frontier. Instead of employing traditional riparian rights, most western states adopted the doctrine of prior appropriation, which encouraged mining, farming and small urban development. The doctrine has subsequently evolved from the rigid formality of “first in time is first in line” to a background system of infrequently enforced rules recognizing special rights for cities, mining and fishing. Furthermore, federal environmental laws subjugate state water rights, partially displacing the prior appropriation claims founded upon them. The current system thus features a patchwork of competing interests of varying sizes who claim rights under a convoluted system of common law, federal regulation, and state statutes.

Impending Scarcity

In 1900, the population of the eleven continental western states was about 4 million, but by 2000 it had grown to over 64 million, and will undoubtedly continue to increase. Due to the expected effects of climate change, however, scientists predict that water levels will shrink by at least 20%. Water sources will also change substantially, as mountain runoff, the traditional source of water, decreases and rains increase. Furthermore, tree ring studies have shown that the region has suffered long droughts that have had cataclysmic effects on the inhabitants, suggesting that water levels are unpredictable. Thus, the West is entering the 21st century in a precarious position: an exploding population lives in an environment with decreasing water levels that is prone to devastating droughts.

Possible Solutions

Allow prior appropriation to continue evolving

One solution would be to allow prior appropriation to remain as the underlying doctrine, while using statutes to strictly limit the beneficial uses allowed by the doctrine. Currently, beneficial use "is a fairly elastic concept that freezes old customs, allows users flexibility in the amount and method of use, and leaves line drawing to the courts."

Link the quotation to the source, please.

Some legislatures have enumerated the uses that qualify as beneficial, but their definitions are very expansive and even include snowmaking and dust control. If a more restrictive definition were adopted that terminated the rights of certain appropriators, it could free up water for more essential uses.

Another development frequently cited as evidence that prior appropriation will meet future needs is the emergence of water markets. Advocates claim that the alienability of water under prior appropriation allows owners to sell to the most efficient user. Making the Coasian argument that initial entitlements are not determinative of an efficient outcome, however, assumes that water is merely another form of property to be exploited. Marketplaces may indeed be an effective means of granting lucrative water rights to the party most willing to pay for them, but do not assure that the most crucial needs are met. Additionally, because “water is an ambient resource where the actions of any one user necessarily affect many other users,” creating efficient water markets would require overcoming the extremely high transaction costs associated with disaggregated ownership.

Government control

A few states have begun to purchase water rights from private holders and then lease the rights back to the original owners. This policy creates state control without changing water usage in the short term, and is a step in the right direction that should be emulated by the other western states. By centralizing ownership within state governments, the region would have an opportunity to create a long term plan that is responsive to current water needs, but balances future requirements against expected decreases in supply. Instead of allowing unpredictable market forces to determine the allocation of the resource, water managers could ensure that it serves the immediate needs of the population and of necessary industry. To effectuate such a policy, states could rely upon takings to secure water rights from unwilling owners.

It's always nice to see someone advocating socialism, but wouldn't it be reasonable to expect you to be candid about it? Something wrong with the word?

Finally, states could use the public trust doctrine to inhibit users from drawing excessive amounts of water from certain sources. The public trust has been criticized because courts have failed to provide sufficient justification for applying it (cite-paper 15) , but the expected decrease of water could provide such a justification. While this could be an effective strategy for limiting use in specific cases, it requires extensive litigation on a case by case basis, and would not be an adequate policy by itself.

Conclusion

Prior appropriation helped populate and develop the West, but its current form should not be counted upon to sustain an exploding population in the face of a changing climate and decreasing water. While it is possible that continued evolution of the doctrine may be sufficient, relying on such an uncertain solution risks the West’s future. Centralized planning of water allocation may be the most effective way to ensure that this unique form of property serves its most crucial needs, although it would have to overcome traditional notions of government inefficiency. Water is essential for supporting life and western water policy must secure it for its burgeoning population.

So we've gone from an argument about technical law, in your earlier drafts, where doctrine appeared important and the political issues were at least partially obscured, to a new form of argument, in which doctrine is essentially secondary, and what's central is the political debate between socialism and private property, in which—without being willing to come out and say so—you are entirely on the socialist side. So the really interesting question is, what happened between the drafts? Was it the effect of Tarlock and others, showing you that doctrine's not as straightforward as it looks; a desire to demonstrate that you can make socialist arguments because you think I'll like them; an actual political conviction emerging once the underlying matter of securing the people's welfare is no longer diffused by legal mumbo-jumbo; etc.? The most interesting next step is to inquire into what your revision means.