The Constitutional Mythology of Western Water Law
By Christine A. Klein
INTRODUCTION
In the state capitol building in Denver, Colorado, a room of cathedral-like proportions has been dedicated to water. There, below the capitol's golden dome, an elaborate mural depicts the central role of water in pushing the frontier westward and “reclaiming” the arid landscape. The mural is accompanied by the simple words of poet Thomas Hornsby Ferril: “Here is a land where life is written in water.” Indeed, water is sacred in the western United States, regarded with a reverence that approaches religious zeal.
This respect for a scarce resource extends also to the western legal system for water allocation, known as the prior appropriation doctrine. Under this doctrine, non-wasteful, beneficial uses of water are constitutionally protected on the basis of “first in time, first in right." This doctrine was born of necessity. As one court stated over a century ago:
Water in the various streams . . . acquires a value unknown in moister climates . . . . [V]ast expenditures of time and money have been made in reclaiming and fertilizing by irrigation portions of our unproductive territory. Houses have been built, and permanent improvements made; the soil has been cultivated, and thousands of acres have been rendered immensely valuable, with the understanding that appropriations of water would be protected. Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.
As a mark of their great reverence for a water jurisprudence born of necessity, western judges have often “constitutionalized” their water decisions, cloaking the common law and statutory interpretation with the mantle of state constitutional authority, creating a species of constitutional common law. In particular, western water decisions use the diversion element of appropriation as a convenient, but highly inaccurate, proxy for the constitutionally mandated beneficial use requirement. Thus, courts have elevated the diversion element of the prior appropriation doctrine to constitutional status, creating the constitutional myth that all water uses must involve diversion in order to receive legal protection. This mythology has undermined the integrity of an entire body of law.
When confronted squarely with the contemporary need for instream water uses, the state courts have abandoned their constitutional rhetoric, allowing non-diversionary uses such as environmental preservation and recreation. Nevertheless, the myth endures and exerts a subtle influence upon western water law, creating both confused judicial interpretation of inconsistent precedent and legislative misunderstanding of the status of diversion. The myth has broad ramifications as it affects a doctrine which more than one-third of the states share.
Part II examines some core concepts of the prior appropriation doctrine to reveal the historical underpinnings of the constitutional myth. Part III addresses the central aspect of the myth, the diversion requirement. It also discusses the related concepts of beneficial use and waste. Part IV considers the clash between modern environmentalism and traditional concepts of water use. This Article suggests that the demise of the mythology has begun, as evidenced by the proliferation of statutory “instream flow” programs. Finally, Part V evaluates the legacy of the myth, including the notion that continued judicial discomfort with the diversion requirement creates confusing legal precedent and poorly-reasoned decisions. This Article argues that diversion has wrongfully replaced beneficial use as the central constitutional requirement of a water right, and suggests ways that this process might be reversed.
In the state capitol building in Denver, Colorado, a room of cathedral-like proportions has been dedicated to water. There, below the capitol's golden dome, an elaborate mural depicts the central role of water in pushing the frontier westward and “reclaiming” the arid landscape. The mural is accompanied by the simple words of poet Thomas Hornsby Ferril: “Here is a land where life is written in water.” Indeed, water is sacred in the western United States, regarded with a reverence that approaches religious zeal.
This respect for a scarce resource extends also to the western legal system for water allocation, known as the prior appropriation doctrine. Under this doctrine, non-wasteful, beneficial uses of water are constitutionally protected on the basis of “first in time, first in right." This doctrine was born of necessity. As one court stated over a century ago:
Water in the various streams . . . acquires a value unknown in moister climates . . . . [V]ast expenditures of time and money have been made in reclaiming and fertilizing by irrigation portions of our unproductive territory. Houses have been built, and permanent improvements made; the soil has been cultivated, and thousands of acres have been rendered immensely valuable, with the understanding that appropriations of water would be protected. Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.
As a mark of their great reverence for a water jurisprudence born of necessity, western judges have often “constitutionalized” their water decisions, cloaking the common law and statutory interpretation with the mantle of state constitutional authority, creating a species of constitutional common law. In particular, western water decisions use the diversion element of appropriation as a convenient, but highly inaccurate, proxy for the constitutionally mandated beneficial use requirement. Thus, courts have elevated the diversion element of the prior appropriation doctrine to constitutional status, creating the constitutional myth that all water uses must involve diversion in order to receive legal protection. This mythology has undermined the integrity of an entire body of law.
When confronted squarely with the contemporary need for instream water uses, the state courts have abandoned their constitutional rhetoric, allowing non-diversionary uses such as environmental preservation and recreation. Nevertheless, the myth endures and exerts a subtle influence upon western water law, creating both confused judicial interpretation of inconsistent precedent and legislative misunderstanding of the status of diversion. The myth has broad ramifications as it affects a doctrine which more than one-third of the states share.
Part II examines some core concepts of the prior appropriation doctrine to reveal the historical underpinnings of the constitutional myth. Part III addresses the central aspect of the myth, the diversion requirement. It also discusses the related concepts of beneficial use and waste. Part IV considers the clash between modern environmentalism and traditional concepts of water use. This Article suggests that the demise of the mythology has begun, as evidenced by the proliferation of statutory “instream flow” programs. Finally, Part V evaluates the legacy of the myth, including the notion that continued judicial discomfort with the diversion requirement creates confusing legal precedent and poorly-reasoned decisions. This Article argues that diversion has wrongfully replaced beneficial use as the central constitutional requirement of a water right, and suggests ways that this process might be reversed.