Public on Paper: The Failure of Law to Protect Public Water Uses in the Western United States

Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective. This paper identifies the relevant legal principles and briefly explains how they have failed to protect public water uses in the western United States.

Where public water uses have threatened established irrigation or municipal uses, however, the western states have typically resisted the allocation (or re-allocation) of water to the public use.
Here again, two Supreme Court cases illustrate this phenomenon. In United States v New Mexico, 6 the state successfully opposed federal claims for in-stream flow rights for environmental and recreational purposes on national forest lands. And in Nevada v United States, 7 the state prevailed in blocking efforts to reallocate water from a federal irrigation project to restore river and lake levels for fishery purposes, primarily to benefit an indigenous tribe.
Protection of existing, traditional uses is also at the heart of the recent disputes over ESA-listed species. The prominence of imperilled species in these conflicts is notable for at least two reasons. First, the decline of water-dependent fish and wildlife in the West indicates the extent to which aquatic and riparian ecosystems have been altered, often to the detriment of native species. 8 Second, the need for ESA intervention to save native fish and wildlife species from extinction reflects the failure of state water laws to adequately protect aquatic and riparian habitats on which these species depend.
Disputes between established, traditional uses and public uses of water will only loom larger in the coming years. For the most part, the region's limited water supplies are already fully allocated and the legal system of the western states offers nearly complete protection for established uses. At the same time, the western states will continue to experience fairly rapid population growth, and the economy and values of today's West are increasingly geared towards a quality of life based on environmental and recreational amenities. Moreover, climate change appears increasingly likely to place increasing stress on water resources, especially in the driest parts of the West. It is therefore crucial that the law governing water resources provide an appropriate means for ensuring that water will be available for important public uses as well as the traditional purposes of irrigation, hydropower, and municipal supply.

Traditional water uses under western United States water law
Most of the American West is both arid and sparsely populated compared with the rest of the United States. Whereas most of the United States population lives where average annual precipitation is 1,000 mm (39 in) or more, most areas of the West average half that amount or less.
With such limited natural water supplies, much of the West's agricultural land requires irrigation to grow reliable crops. Thus, although thermoelectric power plants are the largest water use category in the United States as a whole, 9 that is not true in the western states.

Traditional water uses in the American West
The dominant use of water in the West is agricultural irrigation, accounting for the great majority of water withdrawals in every state -even heavily populated California. In fact, irrigation exceeds 60 per cent of freshwater withdrawals in all 11 states, ranging from 63 per cent in Ne- The other dominant, albeit non-consumptive, traditional water use in the western states is the generation of hydroelectric power. Among the major water resources regions in the United States, the Pacific Northwest leads the nation in hydropower production, while California (a region unto itself) is a distant second. These two basins account for about 60 per cent of United States hydropower production. The western Colorado and Missouri River Basins also generate significant hydropower, representing more than 10 per cent of United States production. 13

The prior appropriation doctrine and western water codes
From the days of the 'Wild West,' water law in the western United States was overtly and intentionally pro-development. The early western courts and legislatures perceived that the commonlaw riparian rights doctrine, which favoured retention of water in its natural course for the benefit of those owning property along the stream, was not well suited to the harsh realities of the 'Great American Desert'. In most of the West, consistently-flowing streams were few and far between and lawmakers believed their water should be put to work wherever it was neededfor mining, irrigation or any other productive activity that could attract people and money to the frontier. 14 Thus, the western territories and states turned to the prior appropriation doctrine to allocate and manage their limited water resources.
Prior appropriation was (and largely remains) pro-development because of at least three fundamental principles, all of which were nearly polar opposites of the analogous elements of the riparian rights doctrine followed by other United States states. First, it not only allowed diversion of water from its natural course, it actually required diversion in order to establish a water right. Second, prior appropriation recognised a right to use water based on putting it to work; that is, a person gained a water right based on applying water to a 'beneficial use', not on land ownership. Third, it created a clear and rigid hierarchy among users to determine who had priority in times when demand for water exceeded the available supply, providing that the oldest 10  Originally developed by courts in disputes between water users, these principles were eventually incorporated into more-or-less comprehensive statutes adopted in all the western states. These water codes typically gave significant power to a state water agency to make decisions on proposed new water uses, changes to established uses and distribution of water supplies among existing users, as well as additional powers. But these codes invariably retained the core principles of prior appropriation, which effectively favoured both allocation of water to traditional uses and preservation of these uses once established. And, although the states have revised their codes somewhat over the years, 15 they have continued to recognise permanent water rights based on beneficial use, and to give top priority to the oldest uses in times of shortage.

Traditional water uses under state law
The fundamental policy underlying the prior appropriation doctrine was to maximise beneficial use of water -that is, to ensure that water resources were fully and productively employed in the service of human activities. In order to promote investment in economically beneficial water development, the law provided for creation of secure rights to the use of water and sought to provide users with certainty regarding their actual water supplies.
Two major prerequisites for an appropriative water right ensured that traditional, extractive water uses were favoured in the allocation of the West's limited water supplies. Prior appropriation mandated that water be removed from its natural course as a threshold step in establishing a water right. This diversion requirement meant that no right could be obtained for in-place uses such as recreation, fishing, or even navigation. Moreover, prior appropriation did not necessarily recognise such uses as 'beneficial' for purposes of establishing a water right, even if they were economically valuable. These appropriation rules effectively foreclosed legal recognition of instream or in-lake uses that could have protected fish, wildlife, or recreation, regardless of their antiquity or their importance.
It is true that over the past few decades, state water laws have evolved away from these rigid rules. The law increasingly recognises fish, wildlife, and recreation as beneficial uses of water, and statutes have created limited exceptions to the diversion requirement for purposes of recognising rights to water left flowing in its natural course. This evolution in the law, however, is of limited practical importance because of the steadfast appropriation principle of 'first in time, first in right'. That principle strongly encouraged users to acquire water rights at the earliest possible date, resulting in many streams that were fully appropriated well before the end of the 19 th century. It has also limited the success of in-stream flow programs by making all pre-existing water rights superior to newly created flow protections. 16 In short, the seniority element of prior appropriation, along with the century of traditional water development preceding the recognition of in-stream flow rights, combine to undermine the effect of the recent legal reforms.
This bias in allocation would be a lesser problem for public water uses if there was an effective means of revisiting or scrutinising established water uses in response to competing demands. Both legally and practically, however, the water use status quo enjoys enormous protection in the West. As for the law, established water users claim property rights to the use of water, and these rights last forever so long as water is actively used. In other words, water rights are perpetual, unlike many other government approvals to use natural resources (including hydropower dam licenses 17 ). Water rights may be changed to a new place or new type of use (for example, irrigation to urban), but even here existing uses are protected, as such transfers are not allowed to 'injure' other water rights by reducing the amount of water available to them. And water law makes no real effort to revisit or improve established practices, unlike other laws governing activities that affect the environment (such as water quality regulation). In practical terms, the states do not actively scrutinise existing water rights for purposes of determining whether water use practices could be changed to improve efficiency or reduce impacts on other users or the environment. Even the continuing requirement of 'beneficial use without waste', whereby states would have fairly clear authority to examine existing uses and curtail those deemed to be excessive, has gone largely unenforced. 18 The strong security enjoyed by established traditional uses stands in sharp contrast to the paper-thin protection for public water uses, as the next section explains.

Legal protection for public water uses
In an earlier day, public versus private water disputes in the West often involved new water projects that threatened free-flowing rivers, such as the dam proposals mentioned above. Now that western rivers are already heavily developed, however, protecting public water uses typically presents a conflict with established irrigation, municipal or hydropower uses. This section identifies significant public water uses in the West then examines legal principles that could benefit such uses by limiting the exercise of existing water rights.

Public water uses in today's West
The most widely recognised public water use in the western states is protection of fish and wildlife habitat. Most states now have statutory programs that allow for legal recognition of water left to flow in its natural course, primarily to protect fish habitat. Although such in-stream flow programs often provide limited protection in practice, 19 they do reflect the value that many westerners place on fish and fishing. Flow protections under state law tend to focus on sport fishes such as trout, rather than on rare species protected by the ESA. While protection of flows for endangered species habitat is often challenged because of the potential economic harm it may cause to water users, 20 protection of flows for sport fish supports a major industry in a region where outdoor activities and associated tourism are big business. Two other public water uses -water quality protection, and water-based recreation -are also increasingly important. Many of the West's stubborn water quality problems are associated with water management and use under state water allocation laws, 21 and both the federal Environmental Protection Agency and the states could take steps to mitigate such problems by promoting a healthier flow regime. 22 As for recreational water uses such as rafting and kayaking, they offer both quality of life and significant economic benefits, as indicated by the popularity among Colorado river towns of special recreational water rights to provide adequate flows for engineered kayak courses. 23 In general, commercial navigation has not been an important public water use in the interior western states, unlike the earlier United States states along the East and Gulf Coasts, the Great Lakes, and the Mississippi and Ohio Rivers. Western rivers tend to be relatively small, and to experience huge seasonal and annual variations in flow, so they have not played a major role in the transportation of goods and people in most parts of the region.

Public provisions in western water law
The water laws of the western states include a variety of 'public' elements, including general constitutional or statutory provisions asserting public ownership of water resources, public interest standards that apply to particular kinds of decisions and the judicially created public trust doctrine.

Statutory public interest provisions
When the western states (beginning with Wyoming in 1890) adopted comprehensive water codes governing the allocation and management of their waters, they generally gave substantial authority to state agencies -typically a 'State Engineer' and his staff -to make decisions on proposals for new water uses, or for changes to existing uses. Most codes provided that such decisions on 'permits' for new uses and 'transfers' of existing rights were to be made initially by the agency, subject to judicial review. The codes invariably prohibited the agency from approving proposals that would harm existing users, but many also required the agency to consider whether approving the application would somehow harm the public interest in water.
Public interest provisions today are most common in the context of decisions on whether to authorise an entirely new water use.

Public trust doctrine
A third potential source of legal protection for water resources in the western United States is the public trust doctrine (PTD). The PTD is unlike the others in that it is judicially rather than legislatively created, although it arguably has constitutional underpinnings. In

Public interest provisions have had little effect on water allocation
Public interest standards, which apply to permit applications in most western states and to transfer proposals in some states, provide the most clearly applicable protection for public water uses. The actual effect of these provisions is somewhat difficult to assess, in that states do not systematically publish the results of their public interest reviews on individual permit or transfer requests. For a variety of reasons, however, I believe these public interest statutes have had little effect in protecting environmental and recreational water uses, especially from the effects of established water rights.
Two of the problems appear on the face of the statutes themselves. First, they apply only to certain kinds of applications, primarily new permits. While the states still issue some new permits (primarily to pump groundwater), there are few places in the West that still have any surface water left to appropriate; in these places no new permits will be issued because the reliably available water is already taken, not because of the public interest. Where new permits are unobtainable, water for new or expanded uses must come from transfers of existing rights; thus, public interest standards for transfers may be important, although they apply in fewer states. But given that most water transfers in the West involve movement of water from irrigation to urban, industrial or environmental uses, public interest standards for transfers may operate to protect traditional agricultural uses as much or more than they protect public uses. conflict. 42 These provisions say nothing about how to balance economic benefits against environmental harms, for example, or whether to approve a transfer that would mean more water for a growing city but less for a traditional agricultural community. One thing is clear: while these provisions confer great discretion to make decisions that would protect public water uses, their language does not require the states to give priority to such uses.
Given both the limited applicability and the vagueness of most public interest statutes, it is no surprise that they have done little to protect environmental and recreational water uses in the West. In some states, at least, water agencies have been reluctant to apply the public interest standard at all. 43 Although the Nevada State Engineer has indeed applied the public interest test in a number of decisions, he has essentially interpreted it simply to reinforce other provisions of Nevada water law, for example requirements regarding beneficial use, water availability, and protection for existing users. 44 There is no indication that public interest provisions have caused the western states to deny permits or transfers they would have otherwise approved; to the contrary, the absence of any reported judicial decision reviewing a denial based solely or primarily on this ground strongly indicates that the states are not using the public interest in this way.

The public trust doctrine has had little effect on water use outside California
The PTD governs the allocation and management of water resources in California, where a famous decision of the state's highest court applied the doctrine to protect the water level of navigable Mono Lake. 45 The water utility serving faraway Los Angeles had obtained a state permit in 1940, allowing it to divert nearly all the water from certain creeks feeding the lake. After years of taking only a fraction of the water allowed under the permit, the utility increased its Under the Mono Lake decision, the PTD imposes not only limits on the state's power to convey trust resources, but also affirmative duties on the state in managing those resources. Remarkably, those duties apply even to waters that have been validly appropriated under state law and actively used under existing water rights -as was true of the waters diverted by Los Angeles from the Mono Lake tributaries. The court defined the state's ongoing responsibility over such waters as follows: Once the state has approved an appropriation, the public trust imposes a duty of continuing supervision over the taking and use of the appropriated water. In exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation decisions which may be incorrect in light of current knowledge or inconsistent with current needs.
The state accordingly has the power to reconsider allocation decisions even though those decisions were made after due consideration of their effect on the public trust. The case for reconsidering a particular decision, however, is even stronger when that decision failed to weigh and consider public trust uses. 47 In other words, the state's power to consider the public interest in water allocation does not end with approval or recognition of a water right. To the contrary, the state not only has authority to revisit established water allocations, but also a 'duty of ongoing supervision' to assess existing uses in relation to today's knowledge and needs regarding water resources. That duty has continuing practical relevance in the never-ending disputes between private and public water uses in California. 48 On paper at least, the PTD offers the most meaningful protection for public uses in the West, in that it is the only law that clearly authorises reduction of established water rights and uses. By giving the states continuing powers and duties that apply even to existing allocations, the PTD has long been a source of inspiration and hope for some people, but an object of fear and loathing for others. And because the latter group includes established water users and their political allies, both of whom have been strongly influential in western state water law and policy, the PTD has not been eagerly embraced in the water use context. Among the eleven western states, 49 only California has applied it to limit the exercise of water rights. aquatic life, recreation, aesthetic beauty and water quality"'. 53 Thus, Idaho seemed poised to apply the PTD to established water rights, as California had in the Mono Lake decision. But when environmental groups sought to require consideration of the PTD in the adjudication of all existing water rights in the Snake River Basin, the Idaho Supreme Court retreated, initially denying that it had ever applied the PTD to water, and later ruling that the PTD could not be considered in the adjudication. 54 And in response to the Idaho court's statement that Idaho water rights nonetheless 'are held subject to the public trust', 55 the Idaho Legislature quickly passed a statute purporting to prohibit application of the PTD to water rights. 56 Arizona might be seen as an exception to the western states' reluctance to apply the PTD to water rights, given that its supreme court rejected a legislative attempt to preclude application of the PTD in water right adjudications, holding the statute unconstitutional. 57 Since then, however, the PTD has not been a litigated issue in Arizona adjudications, and it appears to have no practical relevance to water rights or water management in the state. Thus, while the court protected the PTD from legislative tampering, the PTD has not in turn protected Arizona's waters from depletion caused by traditional uses. 58 In short, the PTD -like state constitutional and statutory provisions -has had limited practical impact in ensuring adequate water supplies for public uses. This ongoing failure poses some risks for private as well as public water users, and for the states themselves, as identified in the conclusion.

Conclusion
Many scholars have commented that western water law has evolved to address new demands and needs. 59 The question has been whether the states are going fast enough or far enough in reforming their laws. Getches wrote that the western states in the 1980s had recognised the need for reforms, but did little to implement them in the following decade, and that the states had largely responded to federal pressures in making the modest revisions they did. 60 He suggested that if the states continued to resist modernizing their water laws, western water policy would evolve in spite of the states' efforts, not because of them. And indeed, the next decade saw the federal ESA play an increasingly important role in driving water policy and management in the West, to the chagrin of both the states and traditional water users whose supplies were disrupted or threatened.
_____________________________________________________________________________ 2011 Special Edition International Journal of Rural Law and Policy 13 Water Law: Through the Lens of Conflict system that have served private water allocation needs. Inaction is the greatest enemy of the system because it will license the courts and others to impose remedies that may be incompatible with private rights'. 61 Many would see the PTD as just such a remedy, threatening curtailment of existing water rights. 62 Inaction has been the prevailing practice, however, as states have continued to favour established uses over protection of public values. But the pressures for change in western water law keep building as the West adds millions of new people, sees environmental water needs go unmet and faces the reality that climate change will only make it harder for the region to balance water supply and demand. If the western states drag their feet in response to such pressures, they may face a growing risk of PTD litigation over their water allocation and management decisions, and with it the possibility that courts will take it upon themselves to protect public water uses.
Keywords: water uses, public water uses, prior appropriation doctrine, public trust doctrine, environmental protection