Dan Keppen is executive director of the Family Farm Alliance, a west-wide coalition of farmers, ranchers, irrigation districts and allied industries that advocates for reliable and affordable irrigation, and offers insight to water issues for the West.
Certain critics of California's water rights system are using the current drought crisis as a forum to advance their claims that Western water rights laws are outdated and hampering efforts to address the state's historic drought. Most of these ideas are being floated by individuals from academic institutions and environmental organizations. Some of these proponents have even suggested that legal or legislative actions will be pursued if state lawmakers do not act to reform the system.
The Family Farm Alliance position on this matter has long been one that the Western system of prior appropriation still fundamentally works. This issue is a significant one for our Western family farmers and ranchers. We have developed a white paper that objectively investigates and responds to criticisms aimed at the doctrine of prior appropriations. This paper also reaffirms our long-held and solid policy positions on this matter.
For more than a century, the prior appropriation doctrine has been the underlying principle for water law in western states. It uses the principle of “first in time, first in right,” which means the first person to put water to a beneficial use is granted a right to continue that use without interference from those using it later.
In recent years, states have been forced to develop policies regarding water transfers as new demands stretched the limits of existing developed water supplies, including water provided by federal Reclamation projects and other storage reservoirs. Thus, in the West, we have seen a move from an era of allocation to an era of reallocation.
Prior appropriation is a shocking concept to people who consider water to be a basic right and it evokes images of some water users getting more than they need of a resource that is essential to life and others being deprived of it. What they sometimes do not understand is that water is not always actually administered by priority (as in New Mexico). However, having that framework and perceived threat of being cut-off creates incentives for parties to come up with solutions to water allocation challenges. We all must keep in mind that in water rights are not defined to a level of detail that facilitates a fine implementation or enforcement activity.
If water were administered as a common good, then you could have a classic example of the Tragedy of the Commons –where individuals acting independently and rationally according to each's self-interest behave contrary to the best interests of the whole group by depleting the resource. Any time you have a shared resource that nobody owns, there is incentive to exploit it first (the “race to the bottom” in the case of unregulated groundwater is a good example). The usual way to get around that is to employ extensive regulation, which often does not accomplish what it intends to, and can create excessive bureaucracy.
Prior appropriation is designed to curtail hoarding and speculation in water. It also allows us to put a price on water so that markets can develop to temporarily move water in times of drought.