Whose Water is it? Private Rights and Public Authority Over Reclamation Project Water
By Reed D. Benson
INTRODUCTION
The American West, for the most part, is an arid place. The average annual precipitation in the seventeen western states is twenty-one inches, but in many places is far less. Often there is too little water to go around, even in places such as Oregon that are commonly believed to be wet. Water is valuable everywhere because it is indispensable; it is even more precious in the West because it is scarce.
Where there is water in the West, it is often supplied by the U.S. Bureau of Reclamation (“the Bureau”). The Bureau delivers about thirty million acre-feet of water in the seventeen western states, which is roughly double the annual yield of the Colorado River and six-sevenths of the annual yield of the Snake River. Over eighty-five percent of that water goes to irrigation, and the great majority of the irrigation water is delivered to lands in California and the Northwest. One in every five irrigated acres in the seventeen states obtains at least some of its water from the Bureau.
While the Bureau has traditionally served irrigation above all other purposes, and continues to do so, in recent years the Bureau has become more responsive to other water needs and users. The Bureau more than doubled its deliveries of water for municipal and industrial uses from 1970 to 1991. In addition, the Bureau is paying increased attention to the long-neglected interests of Indian tribes, as well as to the need for instream flows to support fish and wildlife, water quality, and recreation. Under former Commissioner Dan Beard, the Bureau officially embraced the principle of moving water into new uses in support of the public interest. The Bureau has often encountered opposition, however, from farmers and their allies who seek to continue using Bureau water for established irrigation.
Conflicts over Bureau water involve a wide range of issues, and are played out in various arenas. Ultimately, though, nearly all the conflicts come down to a single question: who has the right to say how Bureau water will be used? In other words, whose water is it?
This Article explores that important and deceptively simple question. The initial pages provide a basic grounding in the reclamation program and the nature of federal “project water.” The bulk of the Article examines the correlative rights and duties of state governments, individual water users, irrigation districts, and the federal government with respect to Bureau water. The Article devotes particular attention to several fairly recent cases from the Ninth Circuit Court of Appeals that shed new light on the question of who controls the water from Bureau projects.
The American West, for the most part, is an arid place. The average annual precipitation in the seventeen western states is twenty-one inches, but in many places is far less. Often there is too little water to go around, even in places such as Oregon that are commonly believed to be wet. Water is valuable everywhere because it is indispensable; it is even more precious in the West because it is scarce.
Where there is water in the West, it is often supplied by the U.S. Bureau of Reclamation (“the Bureau”). The Bureau delivers about thirty million acre-feet of water in the seventeen western states, which is roughly double the annual yield of the Colorado River and six-sevenths of the annual yield of the Snake River. Over eighty-five percent of that water goes to irrigation, and the great majority of the irrigation water is delivered to lands in California and the Northwest. One in every five irrigated acres in the seventeen states obtains at least some of its water from the Bureau.
While the Bureau has traditionally served irrigation above all other purposes, and continues to do so, in recent years the Bureau has become more responsive to other water needs and users. The Bureau more than doubled its deliveries of water for municipal and industrial uses from 1970 to 1991. In addition, the Bureau is paying increased attention to the long-neglected interests of Indian tribes, as well as to the need for instream flows to support fish and wildlife, water quality, and recreation. Under former Commissioner Dan Beard, the Bureau officially embraced the principle of moving water into new uses in support of the public interest. The Bureau has often encountered opposition, however, from farmers and their allies who seek to continue using Bureau water for established irrigation.
Conflicts over Bureau water involve a wide range of issues, and are played out in various arenas. Ultimately, though, nearly all the conflicts come down to a single question: who has the right to say how Bureau water will be used? In other words, whose water is it?
This Article explores that important and deceptively simple question. The initial pages provide a basic grounding in the reclamation program and the nature of federal “project water.” The bulk of the Article examines the correlative rights and duties of state governments, individual water users, irrigation districts, and the federal government with respect to Bureau water. The Article devotes particular attention to several fairly recent cases from the Ninth Circuit Court of Appeals that shed new light on the question of who controls the water from Bureau projects.
