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NathanStopperFirstPaper 7 - 01 Mar 2010 - Main.NathanStopper
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Is Prior Appropriation a Sustainable Doctrine for the West? | | | Any solution to this problem will have to overcome opposition from vested interests. Lockean labor may have to be subjugated to support utilitarian and human values, but some type of reform is crucial to a sustainable future. | |
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< | Strict Statutory Definition of "Beneficial Use"
This solution would allow prior appropriation to remain as the underlying principle in the West, but could promote much more efficient use of the water. Currently, beneficial use "is a fairly elastic concept that freezes old customs, allows users flexibility in the amount and method of use, and leaves line drawing to the courts." Source If legislatures adopted a restrictive definition of beneficial use and terminated the rights of certain appropriators, it could free up water for more essential uses.
Takings
The government could step in and take the rights to certain water sources. Such an action would be expensive, but could provide a solution.
Public Trust
States have effectively used this doctrine to inhibit users from drawing excessive amounts of water from certain sources (National Audubon Society v. Superior Court. 33 Cal. 3d 419). While this could be an effective strategy for limiting use in specific cases, it requires extensive litigation on an individual basis, and would not be an adequate policy by itself. | >
> | One solution would be to allow prior appropriation to remain as the underlying doctrine, while using statutes to strictly define "beneficial use." Currently, beneficial use "is a fairly elastic concept that freezes old customs, allows users flexibility in the amount and method of use, and leaves line drawing to the courts." Source If legislatures adopted a restrictive definition of beneficial use and terminated the rights of certain appropriators, it could free up water for more essential uses. Another solution would be for the government to take the rights to certain water sources. Such an action would be expensive, but could provide a solution. Finally, states could use the public trust to inhibit users from drawing excessive amounts of water from certain sources (National Audubon Society v. Superior Court. 33 Cal. 3d 419). While this could be an effective strategy for limiting use in specific cases, it requires extensive litigation on an individual basis, and would not be an adequate policy by itself. | | | Conclusion
Prior appropriation has adequately served western water needs. But as the region confronts new challenges for the next century, it may have to adapt its water policies to realign with theories of property and meet the demand of its increasing population. |
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