Environmental Engineering Reference
In-Depth Information
One of the classic cases in Idaho dates back to the early 1900s.
A farmer was using a water wheel to lift water out of the Snake River
Canyon to irrigate about 300 acres. Some junior water rights appro-
priators decided to build a dam that took away the current of the
river. The water-wheel user sued, claiming he was fi rst in time, fi rst
in right, and the junior users should be curtailed. The case went to
the U.S. Supreme Court, which ruled against the water-wheel user,
saying that even though he was fi rst in time, fi rst in right, he didn't
have the right to monopolize use of the resource. The water-wheel
user was not allowed to defeat the junior appropriators' ability to
irrigate hundreds of thousands of acres.
“So,” adds Strong, “benefi cial use is an important element of
prior appropriation, and people often forget that.”
Dellapenna disagrees. “The Idaho system works only because
the prior appropriation system is simply not enforced there. . . .
Anyone who says something different is just not correct. That is
part of the hype of pushing [open] markets for water.”
One reason so much alfalfa is grown in the West, Dellapenna
says, is that that's the use for which water was fi rst appropriated. He
points out that if the law is being enforced, someone who owns an
appropriative right cannot change the time, place, or manner of
use if it would have any adverse effect on other water rights holders,
even junior water rights holders.
Tuthill calls that argument “simplistic,” and says it has been
rejected by the Idaho Supreme Court. “Some would like to reduce
the argument to fi rst in time, fi rst in right, but our Supreme Court has
appropriately said it's more complex than that,” he says. Nonetheless,
“some say we're not administering the water properly.”
So much for arriving at an agreement!
Capitalizing on water rights: The Pickens equation. As we've men-
tioned, Texas oilman T. Boone Pickens and his Mesa Water have big
plans to sell billions of gallons of water in the Texas Panhandle. It's
a Texas-sized approach to free-market economics, and naturally, it
has its detractors.
“Some of Pickens' claims about the right to sell water are just
appalling,” says Dellapenna, a proponent of regulated riparianism.
“His idea is that he owns the groundwater and can do anything he
wants with his groundwater. He can pump as much as he wants, and
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