Water Law

“Whiskey Is for Drinking & Water Is for Fighting” Prior Appropriation of Water

By Jeff Eisenberg

The most precious resource in the West is water, apparently even more than whiskey. While the source of the quote in the title of this piece is in doubt, no one doubts the important role water plays in not only one of the fastest growing regions in the country, but also in agriculture.

The USDA’s Economic Research Service estimates that agriculture accounts for approximately 80 percent of the nation’s consumptive water use and over 90 percent in many western states. Other claims on water use include the domestic, industrial and municipal sectors of society.

In the face of competing demands on a limited supply of water, the West developed state-based rules for allocating use. Property rights, including water rights, are created under state rather than national law in the United States. The most common rule in the West under which water is a property right is “prior appropriation.”

A second, less common doctrine for allocating water rights is “riparian rights,”

in which ownership of the right to use the water follows ownership of the adjacent land. Generally, water is allocated in the eastern United States under the riparian doctrine and in the West under prior appropriation. California is an exception to this pattern, as water is allocated under both doctrines in the state.

Under prior appropriation, one who actually diverts and uses water qualifies for the right to do so, provided the water is put to reasonable and beneficial uses. To gain this right, generally the original appropriator is required to file an application with the state engineer showing the date water use began, the beneficial use of the water, and the amount of water used. Since the water is not required to be used at its source — it may be diverted to a different place of use, as would occur in a system of irrigation — the point of diversion must also be recorded with the state engineer to be part of the right to use the water.

Of course, more than one producer or other user of water will want to claim

U.S. Drought Monitor

a water right on a particular stream. As between appropriators, or claimants of water, the basic rule of priority is “first in time, first in right.” What this means is the person who first files a valid claim with the state engineer has a superior claim to the amount of water appropriated, as compared to other users of water on a stream either up or downstream from the first appropriator. Once a valid claim has been filed with the state engineer, a property right is established for use of the water that can be traded on the open market.

However, actual use of water is not strictly controlled by a claim represented on paper issued by a state engineer. During wet years and/or before water supplies are oversubscribed, users simply draw the amount of water they wanted from the stream. If supply is insufficient to meet demand, then it becomes important to enforce the limits of an individual’s right to water.

At least a couple of things can happen in response to a supply shortage. First, the federal government has exclusive authority to adjudicate the correlative rights of all water claimants within basins. Establishing the correlative rights of claimants make it possible to delineate the actual extent of an individual’s claim in light of other claims and the amount of flow. The second thing that can happen is that states will require monitoring of water use on individual farms to ensure limits on use are met.

For a drought monitor key, visit

34 Irrigation TODAY | October 2016

Within the broader framework of a basin- wide adjudication, the basic appropriation doctrine of first in time, first in right still determines the priority among claimants subject to a few important exceptions. First, Native American water rights are held from time immemorial. This means that Native American rights will always be superior to rights filed by producers. Second, water rights that support species listed under the Endangered Species Act

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