Water Law and Institutions – rights and binding agreements U.S. water rights traditionally based on common law: Riparian doctrine in East – land owners entitled to reasonable use subject to others rights. Prior appropriation in West – first in time, first in right takes precedence. California uses both – we call it regulated withdrawal & beneficial use. Water rights doctrines more concerned with property rights; protecting off-stream uses than preserving in-stream flow & environmental quality: Definitions of reasonable use vary by custom, court of law, circumstance, local priority. Litigation to resolve disputes common. Neither doctrine adequately addresses population pressures, changing water uses over time, climate variability.

Riparian rights – an illustration 1. Riparian rights are property rights. 2. Riparian rights are inherent in a riparian parcel of land. 3. A parcel of land must border a natural body of water to be identified as riparian. 4. If you own a riparian parcel of land you own: The upland. Your building and dock. The bottomland offshore from your lot. The aquatic vegetation growing on your bottomland.

Prior appropriation rights – a legal description Under the prior appropriation doctrine, water rights are established by putting the water into beneficial use. The person or organization putting the water to beneficial use may request the water courts to officially recognize the right by a decree.*... (a) water judge decrees the location at which the water will be withdrawn, the amount to be withdrawn, the use to which it will be use, and assigns a priority date. Claims with earlier priority dates have senior rights; claims with more recent priority dates have junior rights.* During times of reduced rainfall or drought, senior rights (rights established in early years) take precedence over junior rights (water rights established in recent years). Use will be reduced or cut off for junior rights, protecting senior rights.... Since Colorados water supply fluctuates continually and is basically filed-on, issues of senior and junior rights become very complex. In Colorado, the Office of the State Engineer (Colorado Division of Water Resources) administers water rights. They monitor the amounts of water being taken from surface and underground sources and oversee distribution based on the priority of water rights. *water courts and judges unique to some states; California does not have either one – done through regular courts. Copyright Colorado State University Cooperative Extension

Institutional reform – watershed management efforts Many efforts attempted to encourage cooperation across jurisdictions & in entire watersheds/river basins (e.g., J.W. Powell). Why difficult to achieve? Water agencies are institutionally cautious. There has been no long-standing national policy coordinator. Innovation has not been readily encouraged by agencies/interest groups – usually pushed by public/communities frustrated by status quo. When watershed collaboration has occurred, it has usually taken the form of a river basin compact – between government jurisdictions.

Compacts – agreements to cooperate Definition – a contract among states, federal water agencies to provide integrated management of an entire river basin AND authority to impose regional allocation solutions: Over 50 in U.S. – and found on every continent. Usually developed after some crisis (e.g., drought, water shortage, dispute among states/cities over allocation). Provide independent verification to ensure compliance. To be obeyed – must be perceived as fair & equitable.

How Compacts work – The Colorado River Experience Colorado River Compact (1922) Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming – and U.S. Allocates waters based on future needs and water-use priorities. After it was ratified, Congress agreed to build Hoover Dam (1928). Arizona refused ratification until 1944, resented inequitable division of its share of the lower Colorado. Major issues: Mexicos share of the river? How determine how much water is available – science and policy?

Colorado River basin Compact (modified from Harding et. al 1995)