Prior Appropriation: A Reassessment

MacDonnell, Lawrence J.

doi:10.2139/ssrn.2691098

Cited by 6 publications

(9 citation statements)

References 24 publications

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“…Utah’s commitment to prior appropriation and financial investment in existing water systems is such a case of institutional path dependency (McCool 1995). While the doctrine’s utility in modern times has been questioned (Wilkinson 1989; Benson 2012; MacDonnell 2015), the state of Utah has pledged it “will remain the bedrock principle of Utah’s water law” because “too many economic decisions have been made on the strength and security of priorities to abandon the doctrine” (GSWSAT 2017). States throughout the region have modified the doctrine over time through legislation and court rulings as a means to maintain the basic structure but increase its flexibility, such as through passage of water banking laws.…”

Section: Connecting Water Security and Water Reallocationmentioning

confidence: 99%

The Accumulating Interest in Water Banks: Assessing Their Role in Mitigating Water Insecurities

Carney

Endter‐Wada

Welsh

2021

J American Water Resour Assoc

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Reallocation is often promoted as a response to water security dilemmas in the western United States. Water banking is a form of reallocation utilized in several states to facilitate temporary water rights transfers. This article frames and examines water banking’s potential influences on water security from a hydro‐social perspective through a case analysis of water banking policy in Utah. It analyzes the challenges of integrating the market‐based economic incentives of water banks with the legal precedents of the prior appropriation doctrine to reallocate water in overappropriated basins with hydrologically interdependent uses. Key‐informant interviews and focus groups were used to examine water security’s meaning to stakeholders and analyze how water banking could affect the water security of disparate users and uses at multiple scales. Stakeholders predominately saw water security as assurance in water quantity, but water security was further equated by participants with the legal protections afforded by water rights. Multiple complexities in water bank implementation are to be expected when multiscalar contexts are considered, including societal and hydrologic tradeoffs in settings with diverse and interconnected interests. Our research shows that examining the potential ramifications of water banking policy through stakeholder perspectives can reveal nuanced insights on individual and collective water security issues not only within Utah but other arid regions in general.

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Section: Connecting Water Security and Water Reallocationmentioning

confidence: 99%

The Accumulating Interest in Water Banks: Assessing Their Role in Mitigating Water Insecurities

Carney

Endter‐Wada

Welsh

2021

J American Water Resour Assoc

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“…International water law never recognized a rule stating that whoever takes the water first thereby acquires an established right to use it forever. A theory of prior appropriation, which seems to suggest something along these lines, was once popular in the USA [25], but it was never adopted or applied in international law [26]. At the same time, there exist plenty of agreements giving some preferential treatment to existing uses over new uses.…”

Section: How Existing Water Uses Lost Their Priority Statusmentioning

confidence: 99%

Priority of Uses in International Water Law

Zheng

Spijkers

2021

Sustainability

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The raison d’être of international water law is that it provides States with a toolkit to equip them to deal with complex problems relating to the joint use and sustainable management of transboundary freshwater resources. The principle of equitable and reasonable utilization is one such tool in this toolkit. When applying the equitable and reasonable utilization principle to a specific transboundary watercourse, States sharing that watercourse must decide which water uses are more important than others. But the general rule is that no water use takes a priori priority over others (this is the so-called no-inherent-priority rule). This paper examines three ways in which this no-inherent-priority rule can be relativized, by recognizing a certain degree of priority to certain categories of water uses. Based on an assessment of previous State practice, it is suggested that (1) existing uses enjoy a certain degree of priority over new uses; that water uses that are (2) more beneficial to a greater number of people and are less damaging to other uses and the freshwater ecosystems, enjoy priority; and that water uses that (3) immediately satisfy vital human water needs enjoy priority. States need some general guidance in identifying which water uses normally take priority in defined circumstances, and this paper provides such guidance, thereby making the tool more effective. States can decide to derogate from these general rules if the circumstances so require; they are, of course, not legally binding on them.

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“…Finally, as the only state that continuously adjudicates water rights throughout the state, where transferred and new water rights are directly and immediately incorporated into state water rights records, Colorado avoids general stream adjudications, which are used in the other western U.S. states to define water rights for entire hydrologic systems. General stream adjudications can last decades, occur infrequently, and, in many states, do not cover all of a state's surface or groundwater systems (MacDonnell, 2015).…”

Section: 1029/2019wr025507mentioning

confidence: 99%

“…Colorado, like all 17 western U.S. states, applies the prior appropriation doctrine for water rights (Thompson et al, 2012;Trout et al, 2011;Womble et al, 2018). Prior appropriation first emerged in California, with the California Supreme Court acknowledging it in 1853, and in 1866, Nevada's Supreme Court applied prior appropriation principles (MacDonnell, 2015). In 1882, however, Colorado's Supreme Court became the first to rule that prior appropriation was the only water rights doctrine in the state and that riparian rights, which apply in the eastern United States and some western states, did not exist in Colorado (MacDonnell, 2015).…”

Section: Introduction: Markets and Courts As Water Allocation Mechani...mentioning

confidence: 99%

“…Prior appropriation first emerged in California, with the California Supreme Court acknowledging it in 1853, and in 1866, Nevada's Supreme Court applied prior appropriation principles (MacDonnell, 2015). In 1882, however, Colorado's Supreme Court became the first to rule that prior appropriation was the only water rights doctrine in the state and that riparian rights, which apply in the eastern United States and some western states, did not exist in Colorado (MacDonnell, 2015). Riparian rights systems allocate water rights for reasonable use on riparian lands bordering a water body and require that all water users share shortages equally, while prior appropriation allocates water rights to the first riparian or non-riparian user that puts water to beneficial use, allowing older, more senior users to fulfill their entire water right before junior users receive any water in times of shortage (Thompson et al, 2012;Trout et al, 2011).…”

Section: Introduction: Markets and Courts As Water Allocation Mechani...mentioning

confidence: 99%

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Water Markets, Water Courts, and Transaction Costs in Colorado

Womble

Hanemann

2020

Water Resources Research

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Water markets increasingly facilitate adaptation to water scarcity, but transaction costs can be barriers to expanded water marketing, particularly under water rights law in the western United States. However, transaction costs are rarely measured, and existing research commonly overlooks how transaction costs differ across individual water transfers and uncertainty in those costs. We collected hundreds of estimates of procedural transaction costs-costs incurred by transfer proponents for legal and hydrologic experts-by surveying 100 water professionals in the state of Colorado. There, water markets are among the most active in the United States, convey perhaps the most clearly defined private property rights of any state, and, unique to Colorado, require approval from specialized water courts. We elicited costs for water transfers with differing physical and legal characteristics, and we elicited separate assessments of (i) probabilities of legal outcomes for water transfers and (ii) transaction costs conditional on those outcomes. Then, we estimated expected transaction costs with a statistical model that combines (i) with (ii). The model reveals systematic differences in transaction costs, with scale economies and higher transaction costs for water-scarce regions, senior water rights, and higher-conflict legal outcomes. It also shows substantial transaction cost uncertainty, which itself can discourage trading. Our novel survey and estimation procedure develops a replicable approach for measuring transaction cost heterogeneity and uncertainty. Additionally, qualitative survey data we collected indicate transaction costs have increased over time due to growing competition for scarce water and that, despite high transaction costs, specialized water courts offer unique benefits. Key Points:• Water market transaction costs are uncertain, and this uncertainty depends upon legal procedures for water rights transfers • Transaction costs are higher in water-scarce regions, for higher-conflict transfers, and for senior water rights, and show scale economies • Transaction costs have grown over time due to increased competition for scarce water and more complex water rights operations Supporting Information:• Supporting Information S1

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Prior Appropriation: A Reassessment

Cited by 6 publications

References 24 publications

The Accumulating Interest in Water Banks: Assessing Their Role in Mitigating Water Insecurities

The Accumulating Interest in Water Banks: Assessing Their Role in Mitigating Water Insecurities

Priority of Uses in International Water Law

Water Markets, Water Courts, and Transaction Costs in Colorado

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