Prior Appropriation Essay ⋆ Environment Essay Examples ⋆ EssayEmpire

This Prior Appropriation Essay example is published for educational and informational purposes only. If you need a custom essay or research paper on this topic, please use our writing services. EssayEmpire.com offers reliable custom essay writing services that can help you to receive high grades and impress your professors with the quality of each essay or research paper you hand in.

Prior appropriation is a legal doctrine for assigning water rights based upon the rule “first in time, first in right.” It was first developed in Colorado and is known as the Colorado Doctrine, or officially as the Prior Appropriation System. The doctrine is a system of water allocation for controlling who uses how much water, the kinds of uses allowed, and when the waters may be used. The doctrine of prior appropriation is quite different from the law on riparian water rights originally developed in England and imported into the American colonies. The law on riparian water rights has historically been easy to apply in the water-abundant eastern United States where contention over a plentiful resource has, until fairly recently, been uncommon. However, in the water-scarce west, water wars have occurred that were both physical and legal.

The water referred to under the doctrine of prior appropriation is surface water, that is, water that naturally occurs in the open atmosphere. Surface water includes rivers, streams, lakes, reservoirs, ponds, impoundments, seas, and estuaries. The term surface water also includes all springs, wells, and other collectors. Water coming from surface runoff includes precipitation, snowmelt, and even water from irrigation that is in excess of the amount that can percolate into the soil, and is as a consequence held in a small depression.

Claimants to water under the doctrine of prior appropriation include senior appropriators and junior appropriators. Senior appropriators are the owners of water rights that were acquired prior to other right holders on the same stream. Junior appropriators are claimants who acquired water rights after the rights of others on the same stream. Riparian access, which is ownership of land adjacent to a stream, does not give a right to its water. Rather, the historical appropriation of water for a beneficial purpose is what creates prior appropriation.

Water in the doctrine of prior appropriation rejects the idea that anyone may own the water in a stream. Rather, the water must be used for a beneficial purpose such as irrigation or watering livestock. Beneficial use is applied broadly in the doctrine of prior appropriation. It includes using water for homes, cities, agriculture, industry, stock watering, recreation, wildlife, power generation, and mining. Recent expansions of the meaning of beneficial have included dust-settling control and snow making. Historically, courts in western states have rejected very few uses of water as unbeneficial. One use not accepted as beneficial has been holding water for ecological uses. The fact that wildlife or a natural body of water needs water retained has not impressed the courts. However, a few courts have begun in recent years to rethink the meaning of beneficial and to apply it to ecological needs.

Under the doctrine of prior application, each water right has an annual quantity and drawing date assigned to it. Every year, the senior appropriators may draw out of the water source their full allotment of water. Since water is scarce, it is usually assumed that the water is available for allocation. Then, the next water right, which is the next earliest, may use the full application. In times of drought, the full application may not be used because the water is simply unavailable. In dry years, junior applicants may receive no water at all, although the senior applicant gets the full amount. Water rights may be sold. If they are sold, then the prior appropriation date travels with the sale. Also, only the amount of water historically used can be transferred with the sale. The application of prior appropriation to water used across state lines or across international boundaries often falls under federal jurisdiction.

Water rights under the doctrine of prior appropriation may also be mortgaged or encumbered as if they were rights to real property. In addition, the water does not have to be used on the land on which it originates nor on the land upon which the right is based. If a water right is not used for some beneficial purpose for a period of time, it may be forfeited under the doctrine of abandonment. The lapsing of water rights is rare. The details of the doctrine of prior appropriation vary from state to state. California uses a combination of both prior appropriation and the older common law riparian water rights. The doctrine is important in regions like much of the western United States, where water is a scarce resource. However, as the competition for water in states east of the Mississippi River has increased, the doctrine is beginning to influence water polices.

Bibliography:

David H. Getches, Water Law in a Nutshell (West Group, 1997);
Joshua Getzler, History of Water Rights at Common Law (Oxford, 2004);
Norman K. Johnson, The Doctrine of Prior Appropriation and the Changing West (Western States Water Council, 1987);
Larry O. Putt, Evaluation of Prior Appropriation in Mississippi (Mississippi State University, 1976);
Richard W. Sadler and Richard C. Roberts, Weber River Basin: A Study of Grass Roots Democracy in Water Development (Utah State University Press, 1993);
Samuel C. Wiel, Water Rights in the Western States: The Law of Prior Appropriation of Water (Bancroft-Whitney, 1911).