Public on Paper: The Failure of Law to Protect Public Water Uses in the Western United States
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Abstract
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.
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References
16 USC §§ 1531-44.
438 US 696 (1978).
463 US 110 (1983).
A Weeks, ‘Defining the Public Interest: Administrative Narrowing and Broadening of the Public Interest in Response to the Statutory Silence of Water Codes’ (2010) 50(1) Natural Resources Journal 255, 260-72.
B Thompson, ‘The public trust doctrine: A Conservative ‘Reconstruction and Defense’ (2006) 15(1) Southeastern Environmental law Journal 47, 54-8.
California Oregon Power Co v Beaver Portland Cement Co, 295 US 142, 158 (1935).
California v United States, 438 US 645 (1978).
Colorado Constitution art XVI § 5.
Conatser v Johnson, 194 P 3d 897 (Utah, 2008).
D Getches, ‘Pressures for Change in Western Water Policy’ in D Getches (ed), Water and the American West: Essays in Honor of Raphael J. Moses (natural Resources Law Centre, 1997) 143, 161.
D Getches, ‘The Metamorphosis of Western Water Policy; Have Federal Laws and Local Decision Eclipsed the States’ Role?’ (2001) 20(1) Stanford Environmental Law Journal 3, 69-72.
D Getches, L MacDonnell and T Rice, Controlling Water Use; The Unfinished Business of Water Quality Protection (Natural Resources Law Centre, 1991) 6-7.
D Gillilan and T Brown, Instream Flow Protection: Seeking a Balance in Western Water Use (Island Press, 1997) 31-2, 144-5.
D Grant, ‘Underpinnings of the Public Trust Doctrine: Lessons from Illinois Central Railroad’ (2001) 33(3) Arizona State Law Journal 849, 852-5.
D Tarlock, ‘The Public Trust Doctrine: A Conservative Reconstruction and Defense’ (2006) 41(3) Natural Resources Journal 769, 770-1.
Day v Armstrong, 362 P 2d 137 (Wyoming, 1961).
F Trelease, ‘Government Ownership and Trusteeship of Water’ (1957) 45 California Law Review 638, 644-5.
Federal Power Commission v Oregon, 349 US 435 (1955).
G Porzak, S Bushong, P Holleman and L MacDonnell, ‘Recreation water rights; “The inside story”’ (2007) 10(1) University of Denver Water Law Review 209, 210-13.
Idaho Conservation League v State of Idaho, 911 P 2d 748 (Idaho, 1995).
J Kenny, N Barber, S Hutson, K Linsey, J Lovelace and M Maupin, ‘Estimated Use of Water in the United States in 2005’ (Research Report United States Geological Survey (US GS), 2009) 5.
J McPhee, Encounters with the Archdruid (Farrar, Straus and Giroux, 1971) 164-5.
J Neuman, Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency in Western Water Use’ (1998) 28(4) Environmental Law, 919, 995-6.
J Ruhl and S Salzman, ‘Ecosystem Services and the Public Trust Doctrine: Working Change from Within’ (2006) 15(1) Southeastern Environmental Law Journal 223, 228.
Kootenai Environmental Alliance v Panhandle Yacht Club, 671 P 2d 1085, 1094 (Idaho, 1983).
M Blumm, H Dunning and S Reed, ‘Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794’ (1997) 24(2) Ecology Law Quarterly 461, 478-96.
M Moore, A Mulville and M Weinberg, ‘Water Allocation in the American West: Endangered Fish Versus Irrigated Agriculture’ (1996) 36(2) Natural Resources Journal 319, 348.
Marks v Whitney, 6 Cal 3d 261, 491 P 2d 374 (1971).
Montana Coalition for Stream Access v Curran, 682 P 2d 163 (Montana, 1984).
N Johnson and C DuMars, ‘A Survey of the Evolution of Western Water Law in Response to Changing Economic and Public Interest Demands (1989) 29(2) Natural Resources Journal 347, 356-87.
National Audubon Society v Superior Court of Alpine County, 33 Cal 3d 419, 658 P 2d 709 (1983).
National Audubon Society, 33 Cal 3d 419, 658 P 2d 709 (1983).
New Mexico Constitution art XVI § 2.
NM Stat § 72-5-23.
P Kibel, ‘The Public Trust Navigates California’s Bay Delta’ (2011) 51(1) Natural Resources Journal 35.
People v Emmert, 597 P 2d 1025 (Colorado, 1979).
R Benson, ‘“Adequate Progress,” or Rivers Left Behind? Developments in Colorado and Wyoming Instream Flow Laws Since 2000’ (2006) 36(4) Enviromental Law 1283, 1286-92.
R Benson, ‘Pollution without solution: Flow Impairment problems Under the Clean Water Act Section 303’ (2005) 24(2) Stanford Environmental Law Journal 199, 256-65.
R Benson, ‘Rivers to Live By: Can Western Water Law Help Communities Embrace Their Streams?’ (2007) 27(1) Journal of Land, Resources, and Environmental Law 1, 16-8, 22-4.
R Craig, ‘A Comparative Guide to the Western States’ Public Trust Doctrines: Public Values, Rrivate Rights, and the Evolution Toward an Eecological Public Trust’ (2010) 37(1) Ecology Law Quarterly 53, 71-80.
R Walston, ‘The public trust doctrine in the Water Rights Context: The Wrong Environmental Remedy’ (1982) 22(1) Santa Clara Law Review 63.
Rev Stat § 537.110.
San Carlos Apache Tribe v Superior Court ex rel County of Maricopa, 972 P 2d 179, 199 (Ariz, 1999).
Shokal v Dunn, 707 P 2d 441 (Idaho, 1985).
Shokal v Dunn, 707 P 2d 441, 448-50 (Idaho, 1985).
State Game Commission v Red River Valley Co., 182 P 2d 421 (New Mexico, 1945).
Tacoma v Federal Energy Regulatory Commission, 460 F 3d 53 (DC Cir, 2006).
The Consolidated Delta Smelt Cases, 717 F Supp 2d 1021, 1069-70 (ED Cal, 2010).
United States Census Bureau, Population Distribution and Change 2000-2010, (United States Department of Commerce, 2011)
Utah Code Ann § 73-1-1.
Utah Code Ann §73-3-8(1)(a).
W Solley, R Pierce and H Perlman, ‘Estimated Use of Water in the United States in 1995’ (Research Report, United States Geological Survey (US GS) Circular 1200) 55.
William F West Ranch v Tyrrell, 206 P 3d 722 (Wyo, 2009).
Wyoming Constitution art 8 § 3.