Environmental Engineering Reference
In-Depth Information
water and water rights (with plenty of restrictions) is a booming
business in the western United States. We'll talk more about that in
Chapter 7.
First in time
is limited by the equally important requirement that
a water user is only entitled to divert the amount of water that can
be of benefi cial use, says Clive Strong, a proponent of prior appro-
priation as Idaho's deputy attorney general and chief of its Natural
Resources Division. The Idaho Supreme Court recently reaffi rmed
this principle. People today, especially critics, tend to forget the
original purposes underlying the prior appropriation doctrine, says
Strong. “First, the doctrine sought to encourage the development
of the West. To do that, it limits the amount of water that can be
diverted to an amount reasonably necessary to achieve the pur-
pose for the diversion. This encourages optimum use of the limited
supply. At the same time, the doctrine recognized that investment
would be hindered without a secure water supply—thus the princi-
ple 'fi rst in time, fi rst in right.' Inherent in the doctrine is the ten-
sion between security of the right to the water versus the optimum
use of that water.”
Prior appropriation today makes more sense in states where
water is in short supply, adds David R. Tuthill Jr., a longtime water
expert and private Idaho-based water consultant with Idaho
Water Engineering, LLC. “Anywhere there is scarcity, it provides
us a mechanism for distributing water fairly. In states without prior
appropriation doctrine, it's very diffi cult to administer available
water supplies in a dry period.”
The other approach to water rights is known as
riparian,
which
originated from English common law. Historically much (but not
all) of the eastern United States bases its water rights and law on
this approach, which recognizes the right of use of a landowner
whose property abuts the water. Specifi cally, if someone owns
land next to a stream, riparian water rights give him or her right
to reasonable use of that stream. A holder can't sell that right and
must share the amount of water in that stream with others hold-
ing the same riparian right. Reasonable use is subject to debate.
Riparian rights can differ from state to state, too, and have evolved
in many places. See Table 5.1 for a state-by-state breakdown of sur-
face water allocation approaches.
