By Joe Bongiovanni
There are tens of thousands of drained rivers and streams across the United States. This is not a new phenomenon Most of these waterways, that once supported all kinds of fish and wildlife, have been empty for over 100 years. In the early 1800’s there was more than enough water for the entire country. As more and more people began to settle out west, people started to get concerned about the distribution of the limited Water Supply. The first water law passed was Riparian Water Rights. This simply stated that everyone adjacent to a body of water have a right to make reasonable use of the water as it flows. In the late 1800’s, western states took a divergent path to water rights known as Prior Appropriation Water Rights. This alternative was upheld with a Supreme Court ruling in 1921.
Riparian Water Rights is a system that allocates water to those that have a legal claim to land bordering the water. It is based on the idea the water cannot be “owned”. The law originates from English Common Law and exists in many former English colonies including the United Kingdom, Canada, Australia, and the Eastern United States. When the Water Supply decreases and there is no longer enough to meet demands, water is allocated based on the proportion of waterfront property. Generally water is not allowed to be moved from its natural watershed, but permits and exceptions are granted for certain projects the benefit the public. Water recreation activities, like swimming, fishing, boating, canoeing, water skiing, ice fishing, are permitted by Riparian Rights. Also included are uses of piers boat ramps, docks, beaches, and other reasonable residential uses.
Prior Appropriation Water Rights could not be more different from Riparian Water rights. Also known as the Colorado Doctrine from the Supreme Court case Wyoming v Colorado. The belief is that water rights can be bought and sold like any other property. Basically, the first person to use a certain quantity of water for a beneficial use gets to keep that right to the water for all eternity as long as they continue to use it. Later users can access the water as long as their demands to not impede on those of the senior rights holders. “Beneficial use” is a vague term and can include agricultural, industrial, mining, residential, and commercial. More recently, ecological purposes have also qualified as a “beneficial uses” of the water. Most states have a governing body to regulate and oversee the allocation of water. This is more so the case in the Western United States:
- California – https://www.waterboards.ca.gov/waterrights/board_info/water_rights_process.shtml
- Oregon – https://www.oregon.gov/OWRD/programs/WaterRights/Pages/default.aspx
- Washington – https://www.ecy.wa.gov/programs/wr/rights/water-right-home.html
- Colorado – https://water.state.co.us/SurfaceWater/SWRights/Pages/default.aspx
- Utah – https://www.waterrights.utah.gov/
Prior Appropriation Rights once helped transform states in the West into fertile hubs of agriculture. These laws now hold states back and cause roadblocks in addressing pressing issues of Water Supply and climate change. Senior rights holders have no incentive to conserve water because they must “use it or lose it”. Rob Harmon of Bonneville Environmental Foundation has come up with a market solution to bring back the water in states that allows senior users to leave water in the streams for ecological purposes.