Climate Change & Water Law

• Published date: 15 September 2022
• Subject Matter: Environment, Energy and Natural Resources, Energy Law, Environmental Law, Climate Change, Waste Management, Water
• Law Firm: Parsons Behle & Latimer
• Author: Ms Abigail R. Brown and Nicole Hardesty

Introduction

Climate change continues to have detrimental effects on the environment, especially water resources. The Intermountain West faces record-breaking droughts and increased water scarcity. Water law in the Intermountain West was not developed to confront the unstable environment that climate change creates. This article addresses the ways in which western water law in the Intermountain West may inevitably adapt to climate change.

Development of Western Water Law and the Law of Prior Appropriation

The legal doctrine governing water law varies in the United States of America, depending broadly on whether a state is located to the east or to the west of the 100th meridian (Craig, 2020 at 3-4, see References). The western United States, inclusive of the Intermountain West, is predominantly governed by the law of prior appropriation, whereas the Eastern states are generally governed by the riparian doctrine. Id. at 3. Under the riparian doctrine, water rights are allocated between real property owners adjacent to a body of water and water is allocated under the theory of reasonable use wherein each riparian water user has an equal right to make a reasonable use of the water source, subject to the equal right of the other riparian water users' reasonable use of the same source. U.S. v. Willow River Power Co., 324 U.S. 499, 505 (1945). In other words, "[r]iparian law gives equal and correlative rights to those owning land along the stream, while the law of appropriation recognizes that the person who has found available water and put it to beneficial uses has a right to continue his use." (Trelease at 24). Although the eastern riparian system of water law also faces challenges with climate change, such as flooding, this article addresses only the challenges to western water law, and specifically how the prior appropriation systems adapt to climate change impacts.

The prior appropriation doctrine that dominates western water law was developed during the 19th Century California Gold Rush to meet the intensive water needs of mining operations. (Wilkinson, 1985 at 317). The riparian water system of the eastern United States was unfit for mining operations because miners used excessive water to flush out gold and silver deposits, which ran afoul of the riparian doctrine's recognition that water users collectively shared a water source, and "a landowner could not substantially diminish the flow of a river because of the duty to respect possible future water development." Id. at 318. In the West, water was scarce, and miners viewed water as a means to further their business endeavors, not as a valuable resource in need of future preservation. Id. at 319. Thus, "[m]ining...could not proceed unless water could be assured in sufficient and certain quantities." Id. at 19. So, miners created their own customs, and a priority system for water use emerged in the West. Id. at 19. Under this priority system for water use, the first miner to claim an area for mining became the first water user of that area and had "an absolute right of priority." Id. at 19. In 1885, the mining priority system was affirmed by the Supreme Court of California in Irwin v. Phillips and the law of prior appropriation became the core of western water law. Id. at 319.

The law of prior appropriation transitioned from mining uses to agricultural uses as ranchers and farmers migrated towards the West and treated water as a means to further their own agricultural operations. Id. at 320. Congress wanted to "reclaim the west," and passed the Reclamation Act of 1902, which sought to support settlement in the West through encouraging settlers to become irrigation farmers. Id. at 320. Today, senior appropriative rights still remain largely in the hands of agricultural and ranching owners, while junior users tend to be cities and individuals. Craig, 2020 at 5. However, many scholars believe that western water law is undertaking its next transition to meet public needs and address water scarcity. (See generally, Wilkinson).

Overview of the Law of Prior Appropriation

Prior appropriation follows the rule of "first in time, first in right." Under the law of prior appropriations, water users do not share water. Wilkinson at 319. The first person to use water from a water source has senior priority and is guaranteed their full allotment of water. Id. In other words, the first person to "divert water from a particular source and use it for a beneficial use (mining, farming, cattle, domestic use, and so forth) acquires a right to that quantity of water superior to anyone who later withdraws water from the same source ' i.e., the senior water right." Craig, 2020 at 4. If water is scarce, senior users are allocated their full supply, while "junior users are cut off according to their order of priority." Wilkinson at 319. The law of prior appropriation does not consider the preservation of water ' "[a] stream or lake can be drained low or dried up entirely, as has occurred with hundreds of western rivers and streams, even the lower Colorado." Id. at 319-320. The priority system does not incentivize leaving water in the stream and most surface water in the intermountain West is now "fully or over-appropriated." Id. at 5. In many parts of the Intermountain West, there is a belief that water rights under the law of appropriation "are considered untouchable, and any effort to curtail them spawns numerous lawsuits." (Sommer). However, the uphill climb to adjust the law of prior appropriation is inevitable as the survival of our society rests upon our adaptation to climate change.

Effects of Climate Change on Water

Western water systems were created with the assumption that the climate and water resources would remain constant. Id. However, climate change has obliterated the idea that water is a static resource as record-breaking droughts and extreme weather patterns dominate news cycles. (Craig, 2020 at 5). Water resources in the western US have especially suffered from the impacts of climate change. (Sommer, 2021). Lake Mead is the lowest it's been since the 1930s. Hotter climates create parched soils, leaving less water runoff for rivers and streams because the soils are absorbing more water to reach normal moisture levels. Higher temperatures increase the evaporation of rain and snow, making it "less likely for a raindrop or snowflake to reach a reservoir." Id. Further, mountain snowpacks are melting earlier and producing less water, which increases evaporation because soils heat up faster without the reflective surface of snowpacks. Id. The unpredictability of climate change creates a harsh reality that "the people who manage the West's complex water systems...can no longer rely on the past to predict the future." Id. Dams and reservoirs are no longer...