Prior Appropriation

The prior appropriation doctrine is a legal concept that evolved in the American West as a means of establishing the right to use scarce water from rivers and streams. This doctrine can be summed up as "first in time is first in line." The prior appropriation doctrine is distinguished from the riparian doctrine, under which those who own land next to water have rights to use the water.

The historic requirements for a valid water right under the prior appropriation doctrine are the intent to divert water, the actual diversion of water, and the application of that water to beneficial use . As the West has evolved from an economy built on mining and agriculture, the prior appropriation doctrine has begun to address new needs for water.

History of Prior Appropriation

The prior appropriation model of water rights has its origins in several parts of the West. Its roots can be seen clearly in the needs of miners during the California Gold Rush. Miners not only panned in streams and rivers, but also diverted water to operate mines located far from the watercourse.

When miners streamed into California during the Gold Rush beginning in the late 1840s, few legal institutions existed to govern their operations. Some mines required water, but the mines were sometimes far from a river. Miners needed to be able to establish rights to water despite this isolation, so the requirements that already applied to the ownership of minerals were adapted for rights to water. Under this system, anyone who established a water diversion for the purpose of operating a mine created a "right" that was recognized by other miners. The courts later recognized such rights. State legislatures adopted laws and established administrative agencies to refine and manage these water rights.

It is significant that these water rights were created under state laws, and not under a uniform federal law for all of the new states. Consequently, there are significant variations among the western states in water law and administration. Further complicating matters, the U.S. federal government and tribal (Native American) governments also have rights to water under doctrines of federal law.

Legal Aspects of Prior Appropriation

The cornerstone of the doctrine of prior appropriation is that a valid claim for water rights must be based on evidence of intent to withdraw water, the construction of a diversion, and putting the water to beneficial use. The requirement of beneficial use is intended to prevent waste of water, which is an important consideration in areas of water shortage. Water rights can be lost for nonuse, as articulated in the adage "use it or lose it."

The prior appropriation doctrine often is administered in a context of scarcity, either because flows in western American rivers can be highly variable, or because too many water rights were claimed in the river. Priority is given to those with older water rights. A senior appropriator can satisfy his or her water needs before a junior appropriator can take water from a river. In a drought year, only a few users may be able to get water.

Water rights are spoken of as being property rights , but the description is not entirely accurate. For most types of property, like a car, one can sell the item to another with a minimum of legal requirements. Water rights typically are sold along with the land where they were used, but owners of water rights may wish to sell them without any land, for use elsewhere. Unlike the sale of a car, these transactions are strictly controlled in many states.

Even where sales of water rights are permitted under state law, obstacles often exist. For example, when water is sold from a farm to a city, a nearby community could be affected as the community's farmers forego agriculture. Thus, a state may allow public comment and participation in a proposed transfer. Additionally, water rights may be owned by a water district, or owned by the federal government, thus preventing individuals from entering into transactions.

Evolution of the Doctrine

The prior appropriation doctrine was created to meet the needs of miners, irrigators, and people congregating within cities in the developing American West. The population of the West has boomed since the doctrine's introduction, and new socioeconomic activities dominate today's region. For example, at the time that prior appropriation was developed, there was little awareness of environmental needs. Although some argue that the prior appropriation doctrine is outdated, others contend that it can be modified to address the modern challenge of providing water to new activities and inhabitants while protecting the legal rights of water owners.

Fish and Wildlife Protection.

The Endangered Species Act (ESA), adopted by the U.S. Congress long after water rights administration was established in the western states, has also led to efforts to protect rivers and streams, sometimes in conflict with those who withdraw water under the prior appropriation doctrine. The ESA is designed to protect threatened or endangered plant and animal species and their habitats. A plant or animal is categorized as endangered if it is in imminent danger of extinction, and as threatened if it is likely to become endangered if steps are not taken to protect it.

The public interest in protecting environmental resources has been expressed in the public trust doctrine, which has occasionally called prior appropriation rights into question. The public trust doctrine is a principle, based on English common law , that the state possesses sovereignty and domain over all shorelands and navigable water. Under this doctrine, the state must administer these lands and waters to maintain public rights in these waters, such as the rights to fishing and navigation. The application of this doctrine to water resources is controversial and its future is uncertain.

Water Quality Protection.

Fishes and other species depend on adequate flow in rivers for their habitats, and yet the prior appropriation doctrine does not provide protection for these ecological needs. Laws protecting water quality (which partly depends on adequate flow) and water rights often are not administered together. Some states have addressed this shortcoming by establishing minimum instream flows , or by allowing agencies to purchase flows. Both of these activities have required modifications to the prior appropriation doctrine.

see also Instream Water Issues; Law, Water; Rights, Public Water; Rights, Riparian.

Denise D. Fort

Bibliography

Getches, David H. Water Law in a Nutshell, 3rd ed. Buffalo, NY: West InformationPublishing Group, 1997.

Tarlock, A. Dan. Law of Water Rights and Resources. New York: Clark BoardmanCallaghan, 1988.

PUBLIC TRUST DOCTRINE

The public trust doctrine is an historical and presently evolving concept relating to the ownership, protection, and use of essential natural and cultural resources. The origins of the public trust doctrine were the declaration of the Justinian Institute that there are three things common to all humankind: air, running water, and the sea (including the shores of the sea). Title to these essential resources, or the commons, is held by the State, as sovereign, in trust for the people.

The purpose of the trust is to preserve resources in a manner that makes them available to the public for certain public uses. The public trust doctrine became part of the English common law, and the courts in the United States also have applied the doctrine.